[ v19 p790 ]
19:0790(96)CA
The decision of the Authority follows:
19 FLRA No. 96
DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS
WASHINGTON, D.C. AND DEPARTMENT OF
DEFENSE DEPENDENTS SCHOOLS, GERMANY REGION
Respondent
and
NORTH GERMANY AREA COUNCIL, OVERSEAS
EDUCATION ASSOCIATION, a/w NATIONAL
EDUCATION ASSOCIATION
Charging Party
Case No. 1-CA-30322
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in
certain unfair labor practices as alleged in the complaint, and
recommending that it be ordered to 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 General Counsel
filed an opposition thereto.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommended Order, as modified herein.
The Judge found that the Respondent violated section 7116(a)(1), (5)
and (8) of the Statute by failing to comply with section 7114(b)(4) of
the Statute, when it failed to provide the Charging Party with certain
information which the Charging Party requested in order to represent a
unit employee under the parties' negotiated grievance procedure. The
Charging Party had requested all documents relating to disciplinary
action taken by the Germany Region against unit and nonunit employees
during the previous three years for making false statements. The Judge
found that the Respondent violated the Statute when it: (1) furnished
the Union with only selected documents from its disciplinary files on
individual unit employees, i.e., the letter of proposed action and final
decision letter rather than the complete file, as requested by the
Union; (2) failed to provide information with regard to all unit
employees subject to such discipline; (3) required the Union to request
information from the Respondent's 27 Civilian Personnel Offices (CPOs),
rather than agreeing to provide the information pursuant to a single
request made at the Regional level; and (4) refused to furnish
information concerning the discipline of management officials and
supervisors for similar conduct. The Respondent excepted to each of
these findings by the Judge and argued that it should not be found to
have violated the Statute. /1/
The Authority agrees with the findings and conclusions of the Judge
that the information requested with regard to bargaining unit employees
was "necessary" for the Charging Party in its representation of the unit
employee under the parties' negotiated grievance procedure. Further, as
to the information in the possession of Respondent's 27 CPOs, the
Authority concludes, without adopting the Judge's finding and rationale
to the effect that the Respondent's initial refusal to seek such
information directly and its suggestion that the Charging Party should
do so constituted an independent violation of the Statute, that the
Respondent violated section 7116(a)(1), (5) and (8) of the Statute in
the circumstances of this case by failing to provide the requested
information to the Charging Party in a timely manner. In so concluding,
the Authority notes that the Respondent failed to provide the Charging
Party with any information, pursuant to its July 5, 1983 request, until
September 19, and that it then authorized the Charging Party to solicit
requested information from its 27 CPOs but refused thereafter to give
the Charging Party sufficient time to receive a response from these
offices before requiring the Charging Party to present the employee's
formal reply on September 29, 1983. While section 7114(b)(4) of the
Statute does not preclude the parties from establishing procedures for
the furnishing of information to an exclusive representative, or
preclude an agency from suggesting that the exclusive representative
should take reasonable steps to secure information from the actual
custodians of such records where appropriate, and an exclusive
representative is not precluded from accepting the invitation to do so,
the exclusive representative may not be denied the opportunity to secure
the requested information in a timely manner and without undue burden or
delay. /2/ The Respondent's conduct herein did not afford the Charging
Party an opportunity to obtain the necessary information requested but
instead prejudiced the Charging Party's presentation of its defense on
behalf of a unit employee by requiring the Charging Party to proceed
without first having a response from the CPOs. Accordingly, the
Authority concludes that the Respondent failed to provide necessary
information to the Charging Party in a timely manner.
The Authority disagrees, however, with the Judge's determination that
the Respondent was obligated to furnish the Charging Party with
information concerning discipline given to supervisors or management
officials. In this regard, the Authority notes that the Judge concluded
that, if disparate treatment between unit employees and managerial
employees could be established for similar misconduct, an arbitrator
might well take this factor into account when assessing what penalty, if
any, to impose on the employee. The Authority does not find this
rationale or surmise by the Judge persuasive in determining whether the
Charging Party's request for information regarding the Respondent's
management officials and supervisors was for "necessary" data within the
meaning of the Statute. In the Authority's view, as supervisors and
management officials perform different duties and functions, the
Respondent would be governed by different considerations in deciding the
degree of discipline appropriate for such persons. Therefore,
supervisors and management officials would ordinarily not be similarly
situated employees for the purposes of showing in a grievance the
disparity of treatment among employees. See Social Security
Administration and Northeastern Program Service Center, 18 FLRA No. 66
(1985), and Department of the Air Force, Scott Air Force Base, Illinois,
18 FLRA No. 75 (1985). Accordingly, the Authority concludes that the
information requested regarding management officials and supervisors has
not been shown to have been necessary to assist the Charging Party in
discharging its responsibilities under the Statute and therefore this
portion of the complaint shall be dismissed.
ORDER /3/
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the Authority hereby orders that the Department of Defense
Dependents Schools, Washington, D.C. and Department of Defense
Dependents Schools, Germany Region shall:
1. Cease and desist from:
(a) Failing or refusing to furnish North Germany Area Council,
Overseas Education Association, a/w National Education Association,
agent for the employees' exclusive representative, with all documents,
in sanitized form, relating to disciplinary or adverse actions in the
Germany Region against bargaining unit employees proposed during the
three year period prior to July 5, 1983, based upon allegations of
making false statements and all documents relating to the outcome of the
above actions.
(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) Furnish the North Germany Area Council, Overseas Education
Association, a/w National Education Association, with all documents, in
sanitized form, relating to disciplinary or adverse actions in the
Germany Region against bargaining unit employees proposed during the
three year period prior to July 5, 1983, based upon allegations of
making false statements and all documents relating to the outcome of the
above actions.
(b) Post at its facilities in the Germany Region where unit employees
are located copies of the attached Notice on forms to be furnished by
the Federal Labor Relations Authority. Upon receipt of such forms, they
shall be signed by an appropriate official, and shall be posted and
maintained for 60 consecutive days thereafter, excluding holiday and
vacation periods, in conspicuous places, including all bulletin boards
and other places where notices to employees are customarily posted.
Reasonable steps shall be taken 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 I, 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 the portion of the complaint pertaining to
the refusal to provide the requested information regarding management
officials and supervisors be, and it hereby is, dismissed.
Issued, Washington, D.C., August 19, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., 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 furnish North Germany Area Council,
Overseas Education Association, a/w National Education Association,
agent for the employees' exclusive representative, with all documents,
in sanitized form, relating to disciplinary or adverse actions in the
Germany Region against bargaining unit employees proposed during the
three year period prior to July 5, 1983, based upon allegations of
making false statements and all documents relating to the outcome of the
above actions. 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 furnish the North Germany Area Council, Overseas Education
Association, a/w National Education Association, with all documents, in
sanitized form, relating to disciplinary or adverse actions in the
Germany Region against bargaining unit employees proposed during the
three year period prior to July 5, 1983, based upon allegations of
making false statements and all documents relating to the outcome of the
above actions.
(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 its provisions, they
may communicate directly with the Regional Director, Region I, Federal
Labor Relations Authority, whose address is: 441 Stuart Street, 9th
Floor, Boston, MA 02116, and whose telephone number is: (617) 223-0920.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 1-CA-30322
Captain Ralph A. Bauer
For the Respondent For the Charging Party For the Charging Party
Carol Waller Pope, Esq.
For the General Counsel
Before: SALVATORE J. ARRIGO
Administrative Law Judge
DECISION
Statement of the Case
This case arose 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.
Upon an unfair labor practice charge filed by the North Germany Area
Council, Overseas Education Association, a/w National Education
Association (herein referred to as the Union) against Department of
Defense Dependents Schools, Washington, D.C. and Department of Defense
Dependents Schools, Germany Region (herein sometimes referred to as
Respondent), the General Counsel of the Authority, by the Regional
Director for Region I, issued a Complaint and Notice of Hearing on
January 14, 1984 essentially alleging Respondent violated the Statute by
failing and refusing to furnish the Union with various documents it
desired to review in connection with the representation of a unit
employee in a disciplinary action.
A hearing on the Complaint was conducted in Wiesbaden, West Germany
at which all parties were represented by counsel and afforded full
opportunity to adduce evidence, call, examine and cross-examine
witnesses and argue orally. Briefs were filed and have been carefully
considered.
Upon the entire record in this matter, /4/ my observation of the
witnesses and their demeanor and from my evaluation of the evidence, I
make the following:
Findings of Fact
At all times material herein the Overseas Education Association has
been the exclusive collective bargaining representative for a unit
comprised of Respondent's nonsupervisory professional school-level
personnel (excluding local nationals) employed by Respondent in its
Germany Region and the North Germany Area Council has been the Union's
agent in representing these employees.
In January 1983 Respondent's North Germany Region and the South
Germany Region merged into the Department of Defense Dependents Schools
(DODDS) Germany Region. The Germany Region has a Personnel Director who
provides a personnel program for the Regional Director as well as
providing advice and assistance to managers, supervisors and the various
Civilian Personnel Offices within the Region. The Regional Director's
contact with the Union on all management-employee relations within DODDS
Germany occurs through the office of the Chief of the Management
Employee Relations Branch. That office provides guidance and assistance
to management regarding disciplinary actions, adverse actions and
interpretation of the negotiated agreement.
In June 1983 bargaining unit employee Dale Fritchman, a teacher,
received a notice of proposed removal from employment with Respondent.
Fritchman sought representation in that matter from Michael Mauer, Union
General Counsel. By letter dated July 5, 1983, Mauer wrote to
Respondent requesting, "all documents in DODDS' possession relating to
disciplinary/adverse actions in this Region against either bargaining
unit employees or management, proposed during the last three years on
the basis of the alleged making of false statements . . . (and) all
documents relating to the outcome of the above actions." Mauer indicated
the information was being requested in order to prepare a reply to the
proposed action as it appeared to the Union that Fritchman was "facing
disparate treatment for his alleged offenses . . ." /5/ Mauer went on to
state:
"If this information is not directly available to you, it will
will be appreciated if this request is forwarded to whatever DoDDS
officials have this information at their disposal. If you refuse
for some reason to voluntarily furnish this material, please
consider this a request under the Freedom of Information Act"
(FOIA).
Respondent's FOIA Officer, E. P. Farrell, denied Mauer's request in
its entirety taking the position that disclosure "would be a direct
violation of the Privacy Act" and "would result in the invasion of the
personal privacy of others whom you do not represent." Mauer and Farrell
talked about the matter in a telephone conversation sometime shortly
prior to September 1, 1983 at which time Farrell refused to comply with
Mauer's request for the information in a sanitized form, i.e., with
individual employees' names and other identifying characteristics
removed.
On September 15, 1983 Respondent's representative, Dr. Joyce Wilson,
Education Program Administrator and Kenneth Bumpass, a Labor Relations
Specialist in the Management Employee Relations Branch at the Regional
level, met with Mauer and Fritchman to receive an oral reply to
Fritchman's notice of proposed removal. Mauer stated that he was unable
to fully present a reply since he had not received any of the
information he requested. Bumpass was unaware of how Mauer's request
was handled and unaware that he filed an unfair labor practice charge
with the Authority on the preceding day concerning the refusal to
furnish the requested information. Mauer gave Bumpass copies of the
charge. During a discussion of the matter Mauer was requested by
management's representatives to make a second request for the data under
the FOIA signed by both himself and Fritchman, asking for basically a
chart of disciplinary actions that had been proposed and the final
outcome. Mauer refused to make such a request contending that he was
entitled to substantially more. Mauer stated he was entitled to
complete files which would include any evidence that was compiled in the
course of management's investigation of alleged infractions, any replies
that were submitted by employees, management officials or their
representatives on their behalf, and any follow-up action that was
taken. Mauer went on to state he was willing to possibly settle for
less than that but at least needed an offer first of what management
would be willing to give before he could say what he would be willing to
do without. Mauer indicated he wasn't interested in identifying
particular individuals at particular schools and had no objection to
receiving sanitized documents. Bumpass mentioned the question of the
availability of files since it was Bumpass' understanding that the
Regional Office, with which Bumpass was associated, only had documents
relating to matters handled at the Regional level and documents
concerning matters resolved at lower levels would be maintained by the
local Civilian Personnel Offices (CPOs) servicing those facilities,
infra. The matter was not resolved and Bumpass indicated he would
attempt to obtain a response, not necessarily the documents but at least
a response, that addressed what Mauer was requesting by early the
following week after which another date would be set for Mauer's reply
on Fritchman's behalf.
Bumpass telephoned Mauer on September 19 and informed him that with
respect to management officials, he had ascertained there were three
instances where disciplinary action had been at least proposed.
However, it was management's position that they were not obligated to
furnish information to the Union on management officials and would not
do so.
With respect to bargaining unit employees, Bumpass stated there were
two files in the Region's possession and he would give Mauer some
documents relative to those two cases. Bumpass went on to reiterate his
comments made at the previous week's meeting to the effect that the
Regional Office had only those documents in its possession where the
deciding official was at the Regional level. He stated that the
Regional Office wouldn't necessarily have copies of those cases where
the deciding official had been at lower than the Regional level,
specifically the school level, and those files would be maintained by
the CPOs but management had no obligation to furnish Mauer with files
they didn't have at the Regional Office. Bumpass told Mauer if he
wanted information from CPOs, Respondent would give him the addresses
and he could make that request on his own. Mauer indicated he would
review the documents which Bumpass sent but insisted he wasn't agreeing
that Bumpass was providing him with what he was requesting. Mauer
further stated that if he was compelled to make his reply to Dr. Wilson
based on what was given to him, he would do so without necessarily
agreeing that his request had been satisfied.
By letter dated September 19, 1983 Bumpass sent Mauer, in sanitized
form, the notice of proposed action and final decision letters
concerning two bargaining unit employees and a partial list of servicing
CPOs. /6/
On September 29, 1983 Mauer and Fritchman again met with Wilson and
Bumpass to present an oral reply to Fritchman's notice of proposed
removal. Mauer restated his contention that, while he did not object to
receiving sanitized documents, he was entitled to complete files and
such would consist of more than the letter of proposed action and a
final letter. Mauer presented a letter to management's representatives
which indicated the reply was being made under protest; a complete
presentation on behalf of Fritchman could not be made without "full
knowledge" concerning other similar proposed actions; to date he had
been supplied only with selected documents from files involving only
bargaining unit employees at the Regional level; he had been refused
files pertaining to DODDS' supervisors and unit employees which might be
in the possession of CPOs or others; he was entitled to be furnished
all documents; and, in view of the foregoing he was contacting CPOs per
Bumpass' suggestion. The letter concluded with a request for an
extension of time in making the reply until the documents presented were
obtained. The request was denied and Mauer presented an oral reply on
Fritchman's behalf.
Mauer wrote to the twenty-seven CPOs requesting all documents
regarding disciplinary/adverse actions against DODDS' employees or
administrators taken or proposed during the past three years for making
false statements. Some CPOs did not respond; others indicated they had
no records of the type sought; and others referred him to the Regional
Office or informed him the information sought was not releasable. No
documents were forwarded to Mauer by any CPO.
By letter of October 20, 1983 Wilson wrote to Fritchman informing him
that while his removal was not warranted, it was her final decision to
suspend him without pay for 14 days effective November 13, 1983 and to
involuntarily transfer him to another school. Thereafter, the Union
filed grievance on Fritchman's behalf and the matter is awaiting
"scheduling and selection of an arbitrator."
After learning of Mauer's unsuccessful attempts with the CPOs, on
December 2, 1983 Respondent wrote to all the CPO offices requesting
appropriate case files of teachers charged with making false statements
or misrepresentations. By early January 1984 all CPOs had responded
that no such case files existed in their offices. No attempt was made
to obtain similar information for management employees. However, by
letter of January 24, 1984 Respondent notified Mauer that although under
no obligation to furnish such information, a search of the Regional
Office files disclosed one case involving a supervisory employee charged
with fraudulent misrepresentation and falsification of time and
attendance reports. Mauer was provided with a three line summary of
this case. Mauer replied to this letter on February 1, 1984 stating
that he considered Respondent's cumulative responses to his request for
information to be incomplete, irresponsive and a deliberate withholding
of information in its possession.
Evidence disclosed at the hearing in this case reveals that two
additional unit employees were involved in situations concerning making
false statements but whose identity or files were not made known to
Mauer in response to his requests for information. Documents concerning
one employee (Rogers) were not furnished since the complete file was
already in Mauer's possession as Mauer represented Rogers during his
disciplinary proceeding. Apparently the file concerning the other
employee (Woods) which was not furnished the Union was simply overlooked
when the files were searched. /7/ It also appears that, as part of the
Woods' matter, a management employee was involved in falsifying a
document. Further, it also appears that two or three other situations
exist which involve management employees making false statements.
Discussion and Conclusions
Counsel for the General Counsel contends that Respondent violated the
Statute when it: (1) furnished the Union with only selected documents
and failed to provide the complete files of unit employees who were
involved in disciplinary actions involving making false statement; (2)
failed to provide information on all unit employees involved in such
actions; (3) required the Union to request information from CPOs; and
(4) failed and refused to furnish information involving non-bargaining
unit employees.
Respondent maintains: (1) completeness of the information furnished
regarding unit employees was not within the scope of the Complaint nor
did Mauer indicate he was dissatisfied with what he received; (2) a
good faith effort was made to obtain and provide information on all unit
employees including information from CPOs after it came to Respondent's
attention that the Union was having difficulty in obtaining responses
from CPOs; and, (3) Respondent was under no obligation to furnish
information regarding management employees since such documents are not
necessary and relevant to disciplinary actions concerning unit
employees.
It is well settled that under section 7114(b)(4) of the Statute /8/
management is required to furnish an exclusive representative with
necessary and relevant information which would enable it to effectively
carry out its representational obligations. Cf. United States
Environmental Protection Agency, Health Effects Research Laboratory,
Cincinnati, Ohio, 16 FLRA No. 16 (1984) and cases cited therein. More
specifically, in Internal Revenue Service, Western Region, San
Francisco, California, 9 FLRA 480 (1982), the Authority held that a
union is entitled to relevant and necessary information to enable it to
properly represent a unit employee at an oral presentation prior to
management's consideration of a proposed adverse action, where, as with
the case herein, the opportunity for reply is provided for in the
negotiated agreement. In that case the activity was found to have
violated the Statute when it refused to furnish the union various
requested information quite similar to that requested herein. Thus, the
activity was required to provide copies of disciplinary or adverse
actions for a three year period dealing, in whole or in part, with a
broadly defined subject which included: copies of materials replied
upon to support the charges in the actions; oral and written replies;
letters of final disposition; reports of any subsequent mitigation or
alteration of dispositions; and relevant parts of investigations or
interviews in actions concerning the general subject matter in which
discipline or adverse action was not proposed for the employee subject
to the investigation.
In the case herein, on July 5, 1983 the Union requested all documents
in DODDS' possession relating to disciplinary or adverse actions in the
Germany Region against unit or management employees proposed during the
prior three year period concerning allegations of false statements and
documents relating to the outcome of such actions. The Union
subsequently notified management that the information in sanitized form
was acceptable. During the meeting with Wilson and Bumpass on September
15, 1983, Mauer specifically conveyed his entitlement to complete files,
indicating he might narrow the request depending upon a counter-offer
from management which did not materialize. Some documents were
furnished by management but on September 19 Mauer informed Bumpass that
he was not agreeing that he had been provided with what he had
requested. On September 29 Mauer again conveyed to Wilson and Bumpass
his contention that he was entitled to complete files, albeit sanitized,
and not merely letters of proposed and final action. Mauer informed
management that he needed full knowledge of other proposed similar
actions and clearly indicated that providing selected documents did not
comply with his request. In his letters to the 27 CPOs, Mauer again
requested all documents.
In these circumstances I conclude that at no time did Mauer indicate
he was willing to accept anything but full compliance with his June 1983
request for documents except that the documents could be furnished in
sanitized form. I also conclude that under section 7114(b)(4) of the
Statute the Union was entitled to receive all the documents requested
regarding all unit employees, and by its failure to fully comply with
such request Respondent violated sections 7116(a)(1)(5) and (8) of the
Statute. /9/
Respondent contends that the issue of the failure to furnish all the
documents requested by the Union was beyond the scope of the Complaint
and should therefore be dismissed. While the Complaint might be read so
as to suggest this interpretation, Council for the General Counsel's
opening statement at the hearing fully apprised Respondent that the
completeness of the information supplied was at issue and Respondent
acknowledged it understood the nature of the allegations to be
litigated. Respondent did not indicate it was taken by surprise or put
to any disadvantage or undue difficulty in presenting its case. See
Federal Mediation and Conciliation Service, 9 FLRA 199 (1982). In
addition, the allegation Respondent protests are clearly related to the
allegations in the charge /10/ and the Complaint. Cf. Bureau of Land
Management, Richfield District Office, Richfield, Utah, 12 FLRA No. 133
(1983) and section 2423.19(d) of the Authority's Rules and Regulations.
I therefore reject Respondent's contention.
With regard to Respondent's initial refusal to seek from the CPOs
information which the Union requested, I conclude Respondent violated
the Statute by such conduct. Management's representative in this matter
was Kenneth Bumpass, a Labor Relations Specialist in the Management
Employee Relations Branch in the Regional Office. The Management
Employee Relations Branch was responsible for management-employee
relations within DODDS Germany. Respondent is the custodian of its
files and how it maintains these files, i.e. centrally or in dispensed
local offices, is its own concern. However, it is the responsibility of
the agency to furnish information "which is reasonably available and
necessary for the full and proper discussion, understanding and
negotiation of subjects within the scope of collective bargaining." In
my view an agency does not comply with that responsibility when it
requires a requesting union to canvass local facilities to obtain
information which the agency is required to produce. Nor do I find
Respondent's belated efforts to obtain the information from CPOs to have
nullified its prior improper conduct. Accordingly, I conclude
Respondent's refusal to obtain from CPOs the information sought herein
by Mauer, the Union's representative, in the circumstances herein,
violated section 7116(a)(1), (5) and (8) of the Statute.
Finally, Respondent contends that information regarding management
employees is not necessary and relevant vis a vis disciplinary actions
concerning unit employees. The Union request was for data concerning
both unit and managerial employees who were involved in situations
similar to that of Fritchman. The Union clearly conveyed to Respondent
that it desired this data in order to ascertain whether a disparate
treatment argument might be made on Fritchman's behalf. Obviously, if
disparate treatment favorable to Fritchman could be established, the
evidence would be used to attempt to persuade Respondent, an arbitrator
or deciding official to reduce or withhold any discipline against
Fritchman.
Respondent did not contend either to the Union nor in this proceeding
that the information relative to unit employees was not necessary or
relevant. Indeed, it is beyond question that the data sought as applied
to unit employees under the circumstances herein was necessary and
relevant to assist the Union in fulfilling its responsibilities under
the Statute. In my view the data concerning managerial employees was
similarly necessary and relevant. While Respondent's standards of
expected behaviour from unit employees and managerial employees may
differ and Respondent might not have ever attempted to make disciplinary
actions between unit and managerial employees consistent, if disparate
treatment between unit employees and managerial employees could be
established for similar misconduct an arbitrator or deciding authority
might well take this factor into account when assessing what penalty, if
any, to impose on Fritchman. It is generally accepted in arbitration
that enforcement of rules and assessment of discipline must be exercised
in a consistent manner unless a reasonable basis exists for the
variation. Elkouri and Elkouri, How Arbitration Works, 643-644 (3rd ed.
BNA 1981). /11/ Although an arbitrator or deciding authority might
ultimately conclude that because different standards of conduct apply to
unit and management employees, disparity of discipline, if it exists, is
not persuasive, that is a matter for determination by the arbitrator or
deciding official. Therefore, I conclude the underlying information is
sufficiently relevant to require production by Respondent so that the
Union can evaluate the data and, if favorable, put the matter before the
party who will decide what weight to give evidence of disparity of
discipline. Cf. United States Environmental Protection Agency, Health
Effects Research Laboratory, Cincinnati, Ohio, 16 FLRA No. 16.
Accordingly, I conclude Respondent violated section 7116(a)(1), (5) and
(8) by its failure to furnish requested data relative to managerial
employees.
While not controlling, I note the conclusion herein comports
generally with the approach taken by the National Labor Relations Board
in similar cases arising under the National Labor Relations Act. That
approach was recently summarized by the sixth circuit in E. I. Dupont de
Nemours v. NLRB, Fd.2d (6th Cir. 1984), No. 82-1767-1903 decided
September 26, 1984, the court stating:
"When a union seeks information concerning the bargaining unit
itself, that information is presumptively relevant and will be
ordered disclosed without any showing of relevant by the union
unless the employer itself rebuts the presumption. When a union
seeks nonunit information, however, the burden is upon the union,
and in this case upon the General Counsel, to establish relevance
without the benefit of any presumption. NLRB v. Rockwell-Standard
Corp., 410 F.2d 953, 957 (6th Cir. 1969); see also NLRB v. Leland
Stanford Junior Univ., 715 F.2d 473, 474 (9th Cir. 1983);
Curtiss-Wright Corp. v. NLRB, 347 F.2d 61, 69 (3d Cir. 1965). The
Board's determination concerning whether information is relevant
to the collective bargaining process is entitled to deference from
the courts. See Stanford, 715 F.2d at 474; Press Democrat
Publishing Co. v. NLRB, 629 F.2d 1320, 1326 (9th Cir. 1980); NLRB
v. Brazos Elec. Power Co-op., Inc., 615 F.2d 1100, 1101 (5th Cir.
1980). The Board need only find a "probability that the desired
information (is) relevant . . . and that it would be of use to the
union in carrying out its statutory duties and responsibilities."
NLRB v. Acme Indus. Co., 385 U.S. 432, 437 (1967); see also
Rockwell-Standard, 410 F.2d at 957; General Elec. Co. v. NLRB,
466 F.2d 1177, 1182 (6th Cir. 1972). Each case involving this
issue "must turn upon its particular facts. The inquiry must
always be whether or not under the circumstances . . . the
statutory obligation to bargain in good faith has been met." NLRB
v. Truitt Mfg. Co., 351 U.S. 149, 153-54 (1956) . . ..
In view of the entire foregoing I recommend the Authority issue the
following:
Order /12/
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 Department of Defense Dependents Schools,
Washington, D.C. and the Department of Defense Dependents Schools,
Germany Region shall:
1. Cease and desist from:
(a) Failing or refusing to furnish North Germany Area Council,
Overseas Education Association, a/w National Education
Association, agent for the employees' exclusive representative,
with all documents, in sanitized form, relating to disciplinary or
adverse actions in the Germany Region against bargaining unit or
management employees proposed during the three year period prior
to July 5, 1983 based upon allegations of making false statements
and all documents relating to the outcome of the above actions.
(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) Furnish the North Germany Area Council, Overseas Education
Association, a/w National Education Association, with all
documents, in sanitized form, relating to disciplinary or adverse
actions in the Germany Region against bargaining unit or
management employees proposed during the three year period prior
to July 5, 1983 based upon allegations of making false statements
and all documents relating to the outcome of the above actions.
(b) Post at its facilities in the Germany Region where unit
employees are located copies of the attached notice marked
"Appendix" on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by
the Regional Director and shall be posted and maintained by him
for 60 consecutive days thereafter, excluding holiday and vacation
periods, in conspicuous places, including all bulletin boards and
other places where notices to employees are customarily posted.
The Regional Director shall take reasonable steps to insure that
notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director of Region I, 441 Stuart
Street, 9th Floor, Boston, MA 02116, in writing within 30 days
from the date of this Order as to what steps have been taken to
comply herewith.
SALVATORE J. ARRIGO
Administrative Law Judge
Dated: November 16, 1984
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 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 furnish North Germany Area Council,
Overseas Education Association, a/w National Education Association,
agent for the employees' exclusive representative, with all documents,
in sanitized form, relating to disciplinary or adverse actions in the
Germany Region against bargaining unit or management employees proposed
during the three year period prior to July 5, 1983 based upon
allegations of making false statements and all documents relating to the
outcome of the above actions. WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
Statute. WE WILL furnish the North Germany Area Council, Overseas
Education Association, a/w National Education Association, with all
documents, in sanitized form, relating to disciplinary or adverse
actions in the Germany Region against bargaining unit or management
employees proposed during the three year period prior to July 5, 1983
based upon allegations of making false statements and all documents
relating to the outcome of the above actions.
(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 I, whose address is: 441
Stuart Street, 9th Floor, Boston, MA 02116 and whose telephone number
is: (617) 223-0920.
--------------- FOOTNOTES$ ---------------
/1/ In its exceptions, the Respondent additionally asserted that the
Judge's finding as to the adequacy of its response concerning unit
employees went beyond the scope of the complaint. The Authority finds,
for the reasons stated by the Judge, that this issue was properly
considered and decided.
/2/ United States Forces Korea/Eighth United States Army, 15 FLRA No.
79 (1984).
/3/ With regard to the posting provisions of this Order, holiday and
vacation periods are excluded from the required posting period due to
the nature of teachers' work periods during the school year.
/4/ Respondent's unopposed Motion to Correct Transcript is hereby
granted.
/5/ The union-management negotiated agreement sets out procedures
relative to imposing discipline and adverse actions which include a
provision providing for oral or written replies to proposed notices.
The agreement also provides:
"No teacher shall be reduced in rank or compensation, demoted,
transferred, reassigned, terminated, or adversely evaluated
without good cause nor disciplined, reprimanded, or suspended
without just cause."
The agreement defines "good cause" and "just cause" as follows:
"Good Cause: When a non-disciplinary action taken against a
teacher is not arbitrary or capricious or punitive in nature."
"Just Cause: A term of art used by Arbitrators and the Civil
Service Commission which, in summary, ensures that disciplinary
action taken by Management against a teacher is not arbitrary and
capricious. It requires, among other things, that when
disciplinary action is taken, the teacher must have been
forewarned of possible disciplinary consequences of his/her
conduct, that the teacher be given the right to reply and be
heard, and that Management's final decision be fair, reasonable,
and based on the offense committed."
/6/ Bumpass had inadvertently sent Mauer an incomplete list. Upon
being notified of this by Mauer in early October, Respondent furnished
Mauer with all the addresses of all CPOs in the Region.
/7/ It is not clear from the record when the Woods file first
surfaced. However, it appears that the Woods' data was maintained in a
CPO file and was overlooked when those files were first reviewed at the
CPO level.
/8/ Section 7114(b)(4) 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(.)
/9/ Since Mauer was aware of the Rogers' matter and indeed already
had the complete file and never specifically mentioned this case when
dealing with Respondent, I do not find Mauer was seeking these documents
nor did Respondent violate the Statute by failing to provide these
documents. However, with regard to the Woods' matter, the file was
never furnished the Union and I do not consider Respondent's vague and
conclusionary testimony regarding the circumstances surrounding the late
discovery of this situation to constitute a valid defense to its failure
to furnish the documents to the Union in a timely fashion. Compare with
Bureau of Prisons, Lewisburg Penitentiary, Lewisburg, Pennsylvania, 11
FLRA No. 111 (1983).
/10/ The Union's original unfair labor practice charge filed on
September 14, 1983 and the amended charge simply states as the gravamen
a refusal to furnish requested information.
/11/ See particularly footnote 158 at 644 wherein the authors cite
support for the statement: "although discipline of supervisor is sole
right of employer, the failure to punish supervisor as severely for
similar offense was a factor in arbitral reinstatement of discharged
employee."
/12/ As it has not been urged, I need not reach the question of
whether it would be appropriate to order Respondent to rescind
Fritchman's transfer and suspension and restore the situation to the
status quo ante until such time as the Union has been furnished with the
requested information. However, as urged by Counsel for the General
Counsel I shall, as part of the posting provisions of this Order,
exclude holiday and vacation periods from the required posting period
due to the peculiar nature of teachers' work years.