[ v20 p696 ]
20:0696(83)CA
The decision of the Authority follows:
20 FLRA No. 83
SOCIAL SECURITY ADMINISTRATION AND
NORTHEASTERN PROGRAM SERVICE CENTER
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1760, AFL-CIO
Charging Party
Case No. 2-CA-50021
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision granting
the Respondent's motion to dismiss the complaint in the above-entitled
proceeding. Thereafter, the General Counsel filed exceptions to the
Judge's Decision with an accompanying brief.
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.
The Respondent's motion to dismiss was based upon its position that
the record evidence did not show that the information requested by the
Charging Party (the Union), pursuant to section 7114(b)(4) of the
Statute, /1/ was necessary for it to discharge its representational
responsibilities under the Statute. The Union's information request
concerned visits by the Respondent's managers to the construction site
of its new Jamaica, New York facilities, (e.g., the names of managers
who had visited the site and their reasons for doing so, the number of
times they had visited the site and whether such visits were on duty
time, and whether the managers were reimbursed for travel expenses).
Such information was sought by the Union in connection with a potential
grievance with respect to the denial of official time for Union
representatives to visit such construction site.
The Authority concludes, in agreement with the Judge and based on his
rationale, that the information requested by but not furnished to the
Union concerning the managers' visits to the construction site was not
necessary for it to fulfill its representational responsibilities under
the Statute. See Department of Defense Dependents Schools, Washington,
D.C. and Department of Defense Dependents Schools, Germany Region, 19
FLRA No. 96 (1985), and Social Security Administration and Northeastern
Program Service Center, 18 FLRA No. 66 (1985). Accordingly, in
agreement with the Judge, the Respondent's motion to dismiss must be,
and it hereby is, granted.
ORDER
IT IS HEREBY ORDERED that the complaint in Case No. 2-CA-50021 be,
and it hereby is, dismissed.
Issued, Washington, D.C., November 22, 1985
(s)---
Henry B. Frazier III, Acting
Chairman
(s)---
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Section 7114(b)(4) provides:
7114. Representation rights and duties (b) The duty of an agency
and an exclusive representative to negotiate in good faith under
subsection (a) of this section shall include the obligation--
(4) in the case of an agency, to furnish to the exclusive
representative involved, or its authorized representative, upon
request and, to the extent not prohibited by law, data--
(A) which is normally maintained by the agency in the regular
course of business;
(B) which is reasonably available and necessary for full and
proper discussion, understanding, and negotiation of subjects
within the scope of collective bargaining; and
(C) which does not constitute guidance, advice, counsel, or
training provided for management officials or supervisors,
relating to collective bargaining(.)
-------------------- ALJ$ DECISION FOLLOWS --------------------
SOCIAL SECURITY ADMINISTRATION AND
NORTHEASTERN PROGRAM SERVICE CENTER
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1760, AFL-CIO
Charging Party
Mr. Herbert Collender For the Charging Party
Irving L. Becker, Esquire For the Respondent
Alfred R. Johnson, Jr., Esquire For the General Counsel
Before: WILLIAM B. DEVANEY Administrative Law Judge
DECISION ON MOTION DISMISSING COMPLAINT
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101,
et seq. /1/ and the Final Rules and Regulations issued thereunder, 5
C.F.R. 2423.1, et seq., concerns whether Respondent violated the Statute
by refusing to provide the American Federation of Government Employees,
Local 1760, AFL-CIO (hereinafter referred to as the "Union"), the names
of its managers who had visited the construction site of its new
Jamaica, New York, facilities, the number of times such managers had
visited the site, whether such managers visited the site on duty time,
whether they were reimbursed for travel expenses, and the reason(s) why
they visited the site, which information was sought in connection with a
potential grievance by the Union seeking allowance of official time and
travel expenses for its representatives to visit the construction site.
This case was initiated by a charge filed on October 15, 1984 (G.C. Exh.
1(a)). The Complaint and Notice of Hearing issued on November 30, 1984
(G.C. Exh. 1(c)), alleging violations of 16(a)(1), (5) and (8) of the
Statute, and set the matter for a calendar call on January 7, 1985, at
which time hearing was fixed for January 8, 1985, before the
undersigned.
All parties were represented at the hearing, General Counsel Exhibit
1(a) through 1(e), formal documents, were received into evidence,
together with Joint Exhibits 1 through 8 (Joint Exhibit 1 is the present
National Agreement; Joint Exhibit 2 consists of Article 10, "Official
Time" of the prior Master Agreement, incorporated by reference by
Article 30, Appendix B of Joint Exhibit 1; Joint Exhibit 3 is a
Stipulation signed by all parties; Joint Exhibit 4 is a request for
official time to visit the Jamaica site; Joint Exhibit 5 is the denial
of the request; Joint Exhibit 6 is the request for information (from
which this case arises); Joint Exhibit 7 is a statement that the
information requested in Joint Exhibit 6 was sought ". . . for the
purpose of assessing the merits of a Union grievance with respect to the
denial of official time to undertake a field trip to Jamaica"; and
Joint Exhibit 8 is a denial of the request for information). General
Counsel's Exhibit 2, for identification, is a charge in a different
cases, No. 2-CA-40425, and was rejected (Tr. 44-45) as having no
materiality or relevance to this proceeding /2/ and that ruling is
hereby affirmed.
The facts were fully presented by written exhibits and by stipulation
and when the undersigned requested General Counsel to demonstrate,
pursuant to 14(b)(4)(B) of the Statute how the information requested was
". . . necessary for full and proper discussion, understanding, and
negotiation of subjects within the scope of collective bargaining",
extensive oral argument was heard and General Counsel made a proffer of
proof as follows:
"Mr. Collender would say that the purpose of his information
request . . . was to determine if management had used official
time to survey the Jamaica, N.Y., site to assess transportation,
security and other facilities available to unit employees at the
time of relocation.
"If management had used official time for these purposes, or
its representatives, then the union would be in a position to
determine if a grievance filed under Article 24 of the negotiated
agreement, alleging a breach of Article 10(c)(1) and (3) of the
predecessor agreement would be viable." (Tr. 34-35).
General Counsel's proffer was rejected (Tr. 37, 41) for the reason
that what management does with its supervisors has no materiality as to
a grievance concerning entitlement of union representatives to official
time; Respondent's notion to dismiss was granted; subject, however, to
reconsideration if General Counsel's brief convinced me that my initial
conclusion were incorrect. February 8, 1985 was fixed as the date for
mailing briefs and/or proposed findings and conclusions of law.
Respondent filed an "Order Dismissing Complaint" which was received by
this Office on January 28, 1985, and General Counsel filed a brief on
February 8, 1985, which has been carefully considered. For reasons set
forth hereinafter, the Complaint is dismissed.
Discussion and Conclusions
The entitlement of union representatives to official time is governed
by 31 of the Statute which, as applicable, /3/ provides as follows:
"(d) Except as provided in the preceding subsection of this
section--
(1) any employee representing an exclusive representative, or
(2) in connection with any other matter covered by this
chapter, any employee in an appropriate unit represented by an
exclusive representative, shall be granted official time in any
amount the agency and the exclusive representative involved agree
to be reasonable, necessary, and in the public interest." (5
U.S.C. 7131(d)).
Article 30 of the parties' current agreement sets forth the agreement
of the parties with respect to Official Time (Jt. Exh. 1, Art. 30, pp.
73-89), which incorporates by reference in Appendix B the provisions of
Article 10 of the prior "Master Agreement" with respect to Program
Service Centers. Charging Party and General Counsel rely specifically
on Section C, paragraphs 1 and 3 of Article 10 which provides as
follows:
"Section C. In accordance with Section a. and b. of this Article
Executive Order 11491, as amended, and applicable HEW
instructions, official time will be granted to Council and Local
Union Officers, Stewards, and other designated representatives
during the regular workweek for the following approved labor--
management activities:
1. Consultation with management on personnel policies,
practices, and working conditions which are within the discretion
of the Bureau or Program Service Center.
3. Participation in joint union-management activities
authorized by the Program Service Center, or by this Agreement, or
by a local supplemental agreement. Any matters for which official
time is requested that do not fall within the above categories or
that have not been mutually agreed to by the local parties, shall
be the subject of consultation between the parties prior to
approval. /4/ (Jt. Exh. 2, Art. 10, C).
If the Union were entitled to official time to visit the construction
site, it was pursuant to its agreement and whether Respondent did, or
did not, send supervisors to the construction site is wholly immaterial.
If the Union were entitled to official time for this purpose by
agreement, it would be entitled to official time if Respondent never
sent supervisors to visit the construction site; and it were not
entitled to official time for this purpose by agreement, it would not be
entitled to official time no matter how many supervisors may have been
sent by Respondent to visit the construction site, nor for what purpose
they may have been sent. Supervisors are not part of the bargaining
unit and, of course, are not subject to the provisions of Article 30, or
Article 10, Section C of the prior agreement. Indeed, the duty to
bargain under the Statute extends only to the conditions of employment
of bargaining unit employees. While a request for information may be
broader than the duty to bargain, the obligation of 14(b)(4)(B) does not
attach in this case to information which is not necessary or material to
the prospective grievance. I express no opinion as to the merits, or to
the lack of merit, of any such grievance for official time; but I do
conclude that information concerning whether supervisors were sent to
the construction site is wholly immaterial to any such grievance. In
United States Environmental Protection Agency, Health Effects Research
Laboratory, Cincinnati, Ohio, 16 FLRA No. 16, 16 FLRA 52 (1984), the
Authority stated, in part, as follows:
"The Authority has previously held that section 7114(b)(4) of
the Statute requires management to furnish an exclusive
representative with information which would enable the union to
effectively carry out its representational obligation in
connection with the processing of an employee grievance or the
determination whether to file a grievance, and that management
violates the Statute if it refuses to do so. See, e.g., U.S.
Customs Service, Region VII, Los Angeles, California, 10 FLRA 251
(1982); Veterans Administration Regional Office, Denver,
Colorado, 7 FLRA 629 (1982); Department of the Navy, Portsmouth
Naval Shipyard, 4 FLRA 619 (1980). However, the information
sought must be necessary and relevant to assist the exclusive
representative in discharging its responsibilities under the
Statute, and therefore the Authority has dismissed complaints
where the requirement has not been established. See, e.g.,
Internal Revenue Service, Buffalo District, Buffalo, New York, 7
FLRA 654 (1982); Director of Administration, Headquarters, U.S.
Air Force, 6 FLRA
"In the instant case, the Authority concludes that the
performance appraisal work sheets of the three non-bargaining unit
employees, requested by but not furnished to the Union, were not
necessary and relevant to assist the Union in fulfilling its
responsibilities under the Statute." (16 FLRA at 54-55).
I have considered carefully Judge Chaitovitz' decision, in Department
of Health and Human Services, Region II and Social Security
Administration and SSA, Office of Hearings and Appeals, Region II, Case
Nos. 2-CA-30181 and 2-CA-30182, Administrative Law Judge Decision Report
No. 40 (August 9, 1984), upon which General Counsel principally relied
at the hearing and which he cites and relies in his brief (see, e.g. pp.
14, 15), and find nothing that supports General Counsel's position.
There, the information request concerned "the entire promotion package
for Merit Promotion Announcement Number S 82-2001." Judge Chaitovitz
determined that, ". . . the requested information is reasonably related
to the grievance, and that the request is not frivolous . . ." Here, of
course, the requested information is wholly immaterial to the grievance,
as an award of official time for the purpose requested is either granted
by agreement or there is no entitlement to official time and an award
based on established or assumed grant of official time to supervisors
could not lawfully be sustained. I have also given careful
consideration to the decision of Judge Arrigo, in Department of Defense
Dependents Schools, Washington, D.C. and Department of Defense
Dependents Schools, Germany Region and North Germany Area Council,
Overseas Education Association, a/w National Education Association, Case
No. 1-CA-30322, OALJ-85-015 (November 16, 1984), in which he found the
refusal to furnish information regarding disciplinary action of
managerial employees involved in situations similar to that confronting
a bargaining unit employee violated the Statute. There Judge Arrigo
found such information necessary and relevant for the reason that, ". .
. 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 . . ." But here, whether Respondent did, or
did not, send supervisors to the construction site on duty time is
wholly immaterial as to whether Union representatives are entitled to
official time to visit the construction site.
Accordingly, because the information sought was neither necessary or
relevant to assist the Union in fulfilling its responsibilities under
the Statute, the Complaint is dismissed.
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: March 15, 1985
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
Statute reference, e.g., Section 7116(a)(1) will be referred to, simply,
as 16(a)(1).
/2/ As instructed, the Reporter placed this document in the rejected
exhibit file.
/3/ 31(a) governs official time for "Any employee representing an
exclusive representative in the negotiation of a collective bargaining
agreement . . ." and it is not asserted that 31(a) has any application
in this case. 31(b) relates to internal business of a labor organization
which shall be performed during ". . . the time the employee is in a non
duty status. 31(c) governs official time, to be determined by the
Authority, for ". . . any employee participation . . . in any . . .
proceedings before the Authority . . ." and it is not asserted that
31(c) has any application to this case.
/4/ This case does not involve the denial of official time and I
express no opinion whatever as to whether "consultation" means "consult"
and not "negotiate", but see, Department of Health, Education and
Welfare, Social Security Administration, BRSI, Northeastern Program
Center, A/SLMR No. 1101, 8 A/SLMR 893 (1978); Department of Health,
Education and Welfare, Social Security Administration, Great Lakes
Program Service Center, Chicago, Illinois, 2 FLRA No. 73, 2 FLRA 559
(1980); or whether Respondent complied fully with whatever obligation
was imposed by Article 10, Section C.