[ v26 p324 ]
26:0324(41)CA
The decision of the Authority follows:
26 FLRA No. 41
U.S. NAVAL SUPPLY CENTER
SAN DIEGO, CALIFORNIA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1399
Charging Party
Case No. 8-CA-60071
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
filed by the General Counsel to the attached decision of the
Administrative Law Judge. The issue is whether the Respondent violated
section 7116(a)(1), (5) and (8) of the Statute by refusing to furnish to
the American Federation of Government Employees, Local 1399, AFL-CIO
(the Union) with information relating to an alleged change in the
smoking policy. We find, contrary to the Judge, that the Respondent did
commit the unfair labor practices as alleged.
II. Background
The dispute arose on September 6, 1985, when two supervisors stopped
an employee, who also served as a Union steward, as he was leaving a
warehouse, Building 3304, with a lighted cigarette in his hand. It is
uncontroverted that smoking is not permitted in certain areas of
Building 3304 and in the outside staging area. The employee had been
smoking or carrying a lighted cigarette in a "no smoking" areas on his
way through the building. One of the supervisors reminded the employee
that he was in a "no smoking" area. The employee disagreed and argued
that he was then outside the building and that the outside area had
always been a smoking area for employees. Moreover, the employee argued
that there were no signs posted establishing that the outside area was a
"no smoking" area. He claimed that as a union representative he
considered the supervisor's statement to be a change in working
conditions. The employee asked the supervisor if the Union had been
notified of this "change" and if the supervisor could provide
information on the new smoking policy.
Thereafter, the Union on a number of occasions requested information
from the Respondent concerning any new instructions or changes in policy
regarding smoking/no smoking areas, particularly the area outside
Building 3304. The Respondent either did not reply or did not furnish
any information.
On September 23, 1985, the Respondent proposed to suspend the
employee for five days for misconduct on September 6, specifically: (1)
disrespectful conduct; (2) failure to carry out a supervisor's
instruction; and (3) failure to observe safety precautions.
On October 3, 1985, the Respondent notified the employee of the
decision to suspend him for the reasons set forth in the notice of
proposed disciplinary action. The Union filed a grievance concerning
the suspension.
The Union also renewed its earlier request for information on new
instructions and policy changes regarding smoking/no smoking areas. The
Union claimed at that time that it also needed the information for
purposes of the employee's grievance, which was then scheduled for
arbitration. Again, the Respondent did not provide the Union with any
information.
III. Administrative Law Judge's Decision
The Judge concluded that the Respondent did not violate section
7116(a)(1), (5) and (8) of the Statute by refusing to furnish
information relating to an alleged change in the smoking policy. In
reaching that conclusion, the Judge found that the evidence in the
record did not establish that there was any change in the Respondent's
policy. The Judge determined that on the contrary it was clear that the
Respondent had not changed its policy as alleged. The Judge further
found that the record, including the employee's testimony, established
that the employee violated existing requirements, that he knew about the
"no smoking" rules at the time of the violation and that he alleged that
the Respondent had changed its policy as a defense for his misconduct.
The Judge also found that the General Counsel's argument that the
information was necessary for the Union to process the employee's
grievance lacked merit. In that regard, the Judge noted that the issue
in the grievance concerned the employee's misconduct and enforcement of
existing safety requirements. Moreover, the Judge found that since
there was no change in existing instructions or policy, the Respondent
had no information to furnish the Union. The Judge therefore
recommended that the complaint be dismissed.
IV. Positions of the Parties
The General Counsel contends that the Judge erred in not making a
specific finding with respect to the Respondent's alleged failure and
refusal to respond to the Union's requests for information. The General
Counsel argues that on five separate occasions the Union requested
information concerning the Respondent's smoking policy and that on each
occasion the Respondent failed and refused to reply. The General
Counsel notes that the Judge made no specific finding with regard to the
General Counsel's allegation that the failure to respond to the Union's
requests constituted a separate 7116(a)(1) and (5) violation of the
Statute, despite specifically finding that on each occasion the Union
requested information, the Respondent furnished no information although
it had assured the Union that it would do so.
V. Analysis and Conclusion
We find that the Respondent violated section 7116(a)(1), (5) and (8)
of the Statute by its failure and refusal to reply to the Union's
numerous requests for information concerning an alleged change in the
Respondent's smoking policy.
We find, in agreement with the Judge, that there was no change in the
Respondent's "no smoking" requirements. Therefore, the specific
information requested by the Union, that is, information concerning
alleged new instructions and changes in policy, did not exist. The
Respondent could not provide information that did not exist and could
not commit an unfair labor practice by not doing so. See Department of
Justice, United States Immigration and Naturalization Service, United
States Border Patrol, 23 FLRA No. 31 (1986) and Army and Air Force
Exchange Service, (AAFES), Lowry Air Force Base Exchange, Ft. Carson,
Colorado, 13 FLRA No. 392 (1983). We also note the absence of
exceptions to this aspect of the Judge's decision.
However, the fact that the specific information sought did not exist
did not relieve the Respondent of an obligation to reply to the Union's
requests. We find that section 7114(b)(4) of the Statute /1/ requires
an agency to reply to a request for information from an exclusive
representative even if the response is that the information sought does
not exist. We find that a reply is "necessary for full and proper
discussion, understanding and negotiation of subjects within the scope
of collective bargaining" within the meaning of section 7114(b)(4)(B).
In this case, a reply from the Respondent was necessary for the Union's
full and proper understanding of the disciplinary action against the
employee and for the Union to effectively represent the grievant in the
related grievance. We conclude that the Respondent committed an unfair
labor practice by failing and refusing to reply to the Union's repeated
requests for information.
The General Counsel seeks a finding that the Respondent violated
section 7116(a)(1) and (5) of the Statute. However, since we have
concluded that the Respondent failed to reply to the Union's requests
for information in violation of section 7114(b)(4) of the Statute, we
find that the Respondent's unfair labor practice constituted violations
of section 7116(a)(8), as well as sections 7116(a)(1) and (5). As a
remedy for the Respondent's conduct, we have determined that the
following order is appropriate.
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Statute, the
U.S. Naval Supply Center, San Diego, California shall:
1. Cease and desist from:
(a) Failing and refusing to reply to requests for information from
the American Federation of Government Employees, Local 1399, AFL-CIO,
the exclusive representative of its employees, which reply is necessary
for full and proper discussion, understanding and negotiation of
subjects within the scope of collective bargaining.
(b) In any like or related manner interfering with, restraining or
coercing its employees in the exercise of the rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative actions in order to effectuate the
purposes and policies of the Statute:
(a) Reply to requests for information made by the American Federation
of Government Employees, Local 1399, AFL-CIO, the exclusive
representative of its employees, which reply is necessary for full and
proper discussion, understanding and negotiation of subjects within the
scope of collective bargaining.
(b) Post at its San Diego, California facility, copies of the
attached Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by the
Commander, U.S. Naval Supply Center, San Diego, California, and shall be
posted and maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where notices to
employees are customarily posted. Reasonable steps shall be taken to
ensure that such notices are not altered, defaced or covered by any
other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VIII, Federal Labor
Relations Authority, in writing, within 30 days from the date of the
Order, as to what steps have been taken to comply.
Issued, Washington, D.C., March 20, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail and refuse to reply to requests for information from
the American Federation of Government Employees, Local 1399, AFL-CIO,
the exclusive representative of our employees, which reply is necessary
for full and proper discussion, understanding and negotiation of
subjects within the scope of collective bargaining.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL reply to requests for information made by the American
Federation of Government Employees, Local 1399, AFL-CIO, the exclusive
representative of our employees, which reply is necessary for full and
proper discussion, understanding, and negotiation of subjects within the
scope of collective bargaining.
(Activity)
Dated:
By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region VIII, Federal Labor Relations Authority whose address
is: 350 South Figueroa Street, 10th Floor, Los Angeles, California
90071, and whose telephone number is: (213) 798-3805.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 8-CA-60071
U.S. NAVAL SUPPLY CENTER SAN DIEGO, CALIFORNIA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1399,
AFL-CIO
Charging Party
John R. Pannozzo, Jr., Esq.
For the General Counsel
Alfred M. Jackson, Esq.
For the Respondent
Before: ELI NASH, JR.
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, 92 Stat. 1191, 5 U.S.C. section 7101 et seq. (herein
called the Statute). It was instituted by the Regional Director of
Region 8 based upon an unfair labor practice charge filed on December 9,
1985 and amended on February 27, 1986 by the American Federation of
Government Employees, Local 1399, AFL-CIO (hereinafter called the Union)
against U.S. Naval Supply Center, San Diego, California (hereinafter
called Respondent). The Complaint alleged that Respondent violated
section 7116(a)(1), (5) and (8) of the Statute by refusing to furnish to
the Union necessary and relevant information relating to an alleged
change in smoking policy and to the processing of a grievance pursuant
to the parties' collective bargaining agreement.
Respondent's Answer denied the commission of any unfair labor
practices.
A hearing was held before the undersigned in San Diego, California at
which the parties were represented by counsel and afforded full
opportunity to adduce evidence and to call, examine, and cross-examine
witnesses and to argue orally. Timely briefs were filed by the parties
and have been duly considered.
Upon consideration of the entire record in this case, including my
observation of the witnesses and their demeanor, I make the following
findings of fact, conclusions of law, and recommendations.
Findings of Fact
A. Incident which prompted information request.
Around 7:00 a.m. on September 6, 1985, union steward Roger Grainger
was drinking a cup of coffee and having a cigarette in the dispatcher's
office prior to beginning work. Grainger, who is employed as a truck
driver left the dispatcher's office apparently with cigarette in hand
and proceeded downstairs in Building 3304 and out of the building to
work. When proceeding to the yard, Grainger passed Supervisors John
Evans and Russell Young. Grainger states that he passed Evans and Young
right outside the large semi-truck door which serves as a passage way
into the warehouse.
It is uncontroverted that smoking is not permitted in certain areas
of Building 3304, which constitute the warehouse; in certain doorways
of the warehouse; and in the outside staging area. From a
reconstruction of Grainger's route from the dispatcher's office and his
admission that he had a cigarette in hand when he passed Evans and Young
it is abundantly clear that Grainger was smoking or carrying a lighted
cigarette, which is tantamount to smoking, at sometime during his
journey to his truck in a "no smoking" area.
While it is not clear from the testimony of either party that
Grainger was insubordinate it is clear that he had a lighted cigarette
when he passed Young and Evans standing in the doorway. Thus, Grainger
was in breach of the "no smoking" policy as it then existed i.e. no
smoking in the warehouse, doorways or in the outside staging area.
Accepting Grainger's testimony as to what occurred, Evans called out to
him and he turned around and began walking towards Evans and Young, whom
Evans had been speaking with at the time. Evans stated, "this is a no
smoking area" and Grainger replied "is it?" Grainger proceeded to inform
Evans that the area outside Building 3304 had always been a smoking area
for employees and supervisors alike for they had always smoked in the
area. Moreover, Grainger added that there were no signs posted stating
that this was a no-smoking area and as a union representative he
considered this to be a change in working conditions. Grainger then
asked Evans if the Union had been notified. Evans did not respond.
However, it is clear that Evans was not talking about any area outside
the warehouse. Grainger asked Evans, if he "could provide the
information on a new smoking policy or a change in instructions to him
or what brought about the change in the no-smoking policy?" Evans
represented that he would give it to Grainger in writing.
B. Building 3304 and the Surrounding Areas on September 6,
1985.
Building 3304 is a large warehouse used for receiving and storing
materials located at the activity. The building has been occupied by
employees somewhere between 1 and 3 years. The areas which are
designated "no smoking" are signified by large white signs with red
lettering; on the inside of Building 3304 these signs are conspicuously
posted on the wall, however, smoking is permitted in the lunchroom,
break and office area located near the semi-trailer opening leading out
to the yard area. The semi-trailer opening is located about 8 to 15
feet away from the lunchroom area; this area is taped with yellow tape.
On the outside of Building 3304 in the yard area on September 6,
1985, there were no white and red "no smoking" signs posted, even near
the hazardous material area which is located in the far north corner
approximately 100-200 feet away from the semi-trailer door opening. /2/
The General Counsel asserts that Respondent's own regulations served
as a basis for concluding that smoking was permitted outside Building
3304 in that the Naval Supply Centers Manual for Fire Protection and
Prevention, on page III-3, Section 0304, B. permits smoking in open
areas and office sections unless, "No Smoking" signs have been posted to
indicate otherwise. And, Department of Defense Directive 4145.19-R-1,
Storage and Materials Handling, at page VI-17, f(1) states in regard to
outside storage areas that: where smoking is prohibited, "No Smoking"
signs must be posted in those locations to assure compliance. Finally,
according to the General Counsel, Naval Supply Center, San Diego,
Instruction 5100.13A, Hazardous Material Safety Program, page 9, Section
29, entitled Local Delivery, is inapplicable to this matter since
Grainger was merely walking out of the warehouse not making a delivery.
It is interesting to note that the above listed regulations or
instructions would appear to be the very documents that the Union would
have received if its numerous requests had been complied with.
These instructions not only pertain to smoking/nonsmoking at the
Naval Supply Center Annex, but served in the General Counsel's opinion
as the basis for initiating disciplinary action against Grainger. The
safety regulations being enforced by Evans when he spoke to Grainger
were: (1) smoking in the warehouse area; (2) smoking in and around
hazardous cargo and (3) smoking in and around vehicles being loaded with
hazardous cargo.
C. The written information request to Evans.
Allegedly later that same morning, Grainger told Chief Steward Larry
Cooper the substance of what he felt his morning conversation with Evans
was about, specifically, that there was a no smoking policy in effect
outside Building 3304. Grainger told Cooper he had questioned Evans
about the policy and that Evans would be giving Grainger the policy
pertaining to the change. Cooper, based upon previous problems with
Evans, instructed Grainger to follow-up his oral information request
with a written one to Evans. Grainger told Cooper he would draft a
written information request and deliver it to Evans.
Pursuant to the conversation with Evans, Grainger drafted a written
information request to Evans. According to Grainger between 12:10 and
12:15 that afternoon, he drove over to Building 322 where Evans is
located and placed a large brown guard mail envelope addressed to John
Evans with an enclosed white envelope that contained the information
request in the middle of secretary Ramona Lentz' desk in plain view.
Again, the correspondence not only reiterated the content of the
parties' morning conversation, but Grainger allegedly sought the
information in order that the Union could fulfill and perform its
representational obligations in accordance with Article 6, Section 2, of
the parties' negotiated agreement and the Statute:
(1) Any new NSC instructions regarding the smoking/no smoking
areas within the Naval Supply Center Annex.
(2) Any change of policy regarding smoking/no smoking areas
within the NSC Annex.
(3) Any other information relied upon by you to change the
smoking/non smoking practices outside of Bldg. 3304. /3/
Evans denied ever receiving the information request. Further, Lentz
testified that the office receives approximately 100-200 guard mail
envelopes daily and another secretary, Carballo testified that the
office receives approximately 150-200 guard mail envelopes on a daily
basis. Grainger, on the other hand, remembered hand delivering this
particular guard mail envelope and placing it on Lentz' desk; Grainger
had delivered mail to Evans' office for seven out of the last eight
years. Guard mail envelopes are very similar in nature; there was no
written log, date stamp or signed receipt kept by Respondent's
secretaries. Both secretaries take a lunch break near the noontime hour
and both secretaries admitted that if they were in one of the four
offices, in the bathroom, near the copy machine or in the mail room
their view of the reception area where their desks are located would be
obstructed. Needless to say Evans never provided the aforementioned
information nor did he ever respond to the Union's information request.
On Monday, September 9, 1985, large white signs with red "no smoking"
lettering were delivered to Building 3304 and on Tuesday, September 10,
1985, those "no smoking" signs were mounted on the wall during the day
between the large semi-trailer doors. Evans stated that the signs were
mounted on Saturday, September 7, 1985, however, he added that the
employees sometimes work on Saturdays. In addition, Evans did not know
the exact date when the "no smoking" signs were brought to Building
3304.
On Thursday, September 12, 1985, Grainger's supervisor Joseph Lieras
conducted his weekly stand-up meeting and informed the truck drivers
including Grainger that: "there is now no smoking outside of Building
3304 and that signs had been posted."
Evans stated that he possibly could have told Lieras to announce at
the stand-up meeting that there was to be no smoking outside Building
3304. Moreover, Evans stated that he has input into Lieras' stand-up
meeting regarding whatever comes along that needs to be disseminated to
the department on a weekly basis. Lieras, could not state at the
hearing whether or not he advised the employees at the stand-up meeting
that: (1) there was to be no smoking in the area; (2) and that there
were signs stating this. However, it was very possible that at the
meeting he pointed out to the employees that the signs had been posted.
D. The oral information request to Joseph Lieras on
September 13, 1985.
Sometime later Evans directed Lieras to conduct an investigation of
the Grainger incident. On September 13, 1985, Lieras asked Grainger to
meet with him and Lieras told Grainger to bring along a union
representative. The purpose of the meeting was to investigate
allegations regarding Grainger's alleged disorderly conduct towards
Evans and his alleged violation of smoking policies. The parties
discussed the incident which took place on September 6, 1985.
Grainger's representative Cooper made an oral information request to
Lieras; asking Lieras if he would get the information that had been
requested earlier both verbally and in written form from Evans by
Grainger; Lieras indicated that he would attempt to get the information
from Evans. Lieras' notes indicate that: "I (Grainger) want to go on
record that Mr. Evans has not yet provided me with this instruction that
he said he would."
During the course of the investigation Lieras asked three questions
concerning the September 6th incident and received three responses from
Grainger. The questions and answers along with the Union's statement
regarding its previous information requests to Evans were submitted in
note form by Lieras to Candice Nutwell in the Labor Relations Office.
After Lieras turned over his notebook to Nutwell, he was unaware of what
subsequently happened to his notes.
Lieras never provided the smoking policy information nor did he
respond to the Union's oral information request. Although Evans
directed Lieras to take disciplinary action if warranted against
Grainger he testified that he was not aware of any disciplinary action
having been taken against Grainger after the September 6th incident.
Clearly, Lieras never spoke to Evans concerning the Union's smoking
policy information request; nor did he inform Evans regarding the
Union's representations made at the meeting on September 13th as they
related to the previous information requests made to Evans by Grainger
on September 6th; Moreover, it appears that Lieras never spoke to Evans
in regard to the findings of the investigation which Evans himself
initiated. Lieras, who previously smoked in the yard area outside
Building 3304, was not aware that smoking was prohibited there until
Evans informed him in September 1985.
On September 23, 1985, Lieras issued a Notification of Proposed (5
day) Suspension to Grainger based upon the following grounds: (1)
disrespectful conduct; (2) failure to carry out a supervisor's
instruction and (3) failure to observe safety precautions.
E. The oral information request to Charles Bischofberger
on October 2, 1985.
On the morning of October 2, 1985, in Building 65, Cooper and
Grainger met with the Director, Transportation Division, Material
Department, Charles Bischofberger for the purpose of providing an oral
rebuttal to the Notification of Proposed Suspension issued by Lieras.
At that meeting, Bischofberger was made aware of the Union's previous
information requests to Evans (verbal and written) and Lieras.
Furthermore, Cooper asked Bischofberger if he could obtain the smoking
policy information for the union and Bischofberger responded that he
would attempt to get the information from Evans. Moreover,
Bischofberger was informed that both Evans and Lieras had represented to
the Union that they were each going to furnish the Union with the
smoking policy information. However, Bischofberger failed to provide or
respond to the Union's information request.
On October 3, 1985, Bischofberger issued the Notification of
Suspension (5 days) to Grainger. The 5-day suspension was served by
Grainger from October 7, 1985 through October 11, 1985. The reasons for
the suspension, as set forth in the Notification of Personnel Action
were as follows: (1) disrespectful conduct; (2) failure to carry out a
supervisor's instruction and (3) failure to observe safety precautions.
Thereafter, on October 18, 1985, a Union grievance regarding the
Grainger suspension was filed.
F. The oral information request to Ken Nyenhuis on
November 22, 1985.
On November 22, 1985, a meeting pertaining to the Union grievance was
conducted between Executive Officer Nyenhuis, Labor Relations Specialist
Richard Donaldson, Larry Cooper and Roger Grainger. At that meeting,
the Union through Cooper and Grainger made another oral information
request, this time to Executive Officer Nyenhuis. Nyenhuis represented
that he would take care of the Union's information request and obtain
the information for the Union, however, Nyenhuis did not provide nor did
he respond to the information request. At that point, the smoking
policy information allegeldy was not only needed in regard to the
alleged change outside Building 3304, but also with respect to the
Grainger grievance, which was then pending arbitration.
During the course of the parties' discussion, Nyenhuis was made aware
that previous, yet unsuccessful information requests had been made to
Evans by Grainger (verbal and written), Lieras (verbal) and
Bischofberger (verbal); that all had promised to provide the
information and all had failed to fulfill those promises. Grainger's
theory is that he needed the smoking policy information, since the 5-day
suspension was predicated on the alleged failure to observe safety
precautions from which the alleged disrespectful conduct and failure to
carry out a supervisor's instruction followed.
A copy of the September 6th written information request by Grainger
to Evans along with a statement of facts were presented to Nyenhuis at
the meeting. On December 3, 1985, a Grievance Decision was issued by
Executive Officer Nyenhuis affirming the 5-day suspension on December 3,
1985. Arbitration was invoked in January 1986, by the Union on the
Grainger grievance and it is presently pending.
Conclusions
The General Counsel's theory of this case is there was information
relating to a change in smoking policy at the facility which Respondent
refused to supply to the Union on several occasions. In the
alternative, the General Counsel asserts that the information pertaining
to the change in smoking policy was necessary and relevant to allow the
Union to fulfill its representational functions -- i.e. process the
grievance of Grainger concerning a violation of the changed "no smoking"
policy.
Respondent submitted that there were no new instructions concerning a
smoking/no smoking policy. Its position is that there was no change in
smoking policy outside Building 3304. Respondent thus asserts that the
information sought by the Union was "non-existent" information.
Respondent further raises an issue of whether 7116(d) of the Statute
acts as a bar to the present unfair labor practice proceeding.
I agree with Respondent that the record evidence does not establish
that there was a change in smoking policy outside Building 3304. I also
find, based on credible evidence that the issue was not one of change in
smoking policy, but concerned discipline for Grainger's conduct on
September 6, 1985. Grainger's suspension was for disrespectful conduct,
failure to carry out a supervisor's instruction, and failure to observe
safety precautions. All, it must be assumed, valid reasons for
discipline.
Despite all assertions to the contrary, the record establishes beyond
any doubt that Grainger left the dispatcher's office with a lighted
cigarette, that he walked through the warehouse through no smoking areas
with the cigarette and that when he approached Young and Evans just
outside the warehouse semi-truck door entrance he had a lighted
cigarette in hand.
When called back by Evans concerning the lighted cigarette I see him
with no options other than to put out the cigarette. Clearly Grainger
had walked through a designated no smoking area with the cigarette in
hand and had approached two supervisors who could not help but observe
him with the lighted cigarette. To deny that a breach of the existing
no smoking rules had occurred or to assert that a change in the no
smoking policy had occurred is to misrepresent what was actually
happened. This action is akin to one stepping off an elevator which
contained a no smoking sign with a lighted cigarette in hand, into the
arms of a fire marshal, then denying that the no smoking mandate aboard
the elevator had been breached because one was now standing in the
hallway.
Grainger raised the change in smoking policy issue. However, it is
clear to see, even from his testimony that he was in violation of the
existing no smoking policy and the existing activity instructions
concerning safety precautions and smoking areas. /4/
In Army and Air Force Exchange Service (AAFES) Fort Carson, Colorado,
17 FLRA 624 (1985) petition for review filed sub nom. American
Federation of Government Employees, Local 1345 v. FLRA, No. 85-1378
(D.C. Cir. June 21, 1985) the Authority held that a Union's bare
assertion that it needs data to process a grievance does not
automatically oblige the agency to supply such data. The Authority
found that the duty to supply information under section 7114(b)(4) turns
upon the nature of the request and the circumstances of the particular
case.
In the instant matter, it is my opinion that no such duty exists.
The facts clearly disclose that the dispute arose not over a change in
the existing smoking policy, but over the enforcement of the already
existing policy. Furthermore, there was no selective enforcement since
the record clearly reveals that the policy was being strictly adhered
to. An example of its enforcement was in action at the very time
Grainger passed Evans and Young in the semi-truck doorway where Evans
was supposedly questioning Young about employees smoking in the same no
smoking area. /5/
Since there was no change in the "no smoking" policy the General
Counsel's theory that the information was necessary to aid the Union in
its representational function of processing a grievance also lacks
merit. The issue in the grievance involved conduct between employee and
supervisor and existing safety precautions concerning no smoking.
Furthermore, the change in policy question was raised not by Respondent,
but by Grainger as a defense for his smoking in a clearly designated no
smoking area of the warehouse. Nowhere in discussions with Evans or
other labor relations or management officials does one find Respondent
asserting anything other than Grainger was being disciplined for
disrespect to a supervisor. In such circumstances where the policy
change question was raised only by the Union it is difficult to find
that the information was at all necessary to establish that Respondent
was relying on a change in the smoking policy. Respondent has never
asserted that there was such a change, but depends on Evans' enforcement
of already existing instructions and regulations. I find, therefore
that there was no policy change in "no smoking" regulations. Absent
such a change, I also reject the Union's argument that Respondent did
not supply it with information concerning the change in policy, since
there was no change. Moreover, I find that since there was no change,
Respondent had no information to supply the Union which would have been
reasonably available and necessary to its evaluation of whether to
proceed with the Grainger grievance. /6/
In view of the above, it is found that Respondent did not violate
section 7116(a)(1), (5) and (8) of the Statute by refusing to supply
reasonably available and necessary information relating to an alleged
change in smoking policy and to the processing of a grievance.
Accordingly, it is recommended that the Authority adopt the following:
ORDER
IT IS HEREBY ORDERED, that the Complaint in Case No. 8-CA-60071 be,
and it hereby is, dismissed in its entirety.
/s/ ELI NASH, JR.
Administrative Law Judge
Dated: August 29, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) Section 7114. Representation rights and duties
. . . . . . .
(b) The duty of an agency and an exclusive representative to
negotiate in good faith under subsection (a) of this section shall
include the obligation --
. . . . . . .
(4) in the case of an agency to furnish to the exclusive
representative involved, or its authorized representative, upon
request and, to the extent not prohibited by law, data --
(A) which is normally maintained by the agency in the regular
course of business;
(B) which is reasonably available and necessary for full and
proper discussion, understanding, and negotiation of subjects
within the scope of collective bargaining; and
(C) which does not constitute guidance, advice, counsel, or
training provided for management officials or supervisors,
relating to collective bargaining(.)
(2) Respondent admits that the "no smoking" sign was not in existence
on the outside of Building 3304 on September 6, 1985, and pictures,
which were taken a week before the hearing did not necessarily represent
the condition of the outside area at the time of the Grainger-Evans
incident. Young further stated that there were no signs posted in the
hazardous materials area located some 400 feet from the semi-trailer
opening.
(3) Article 6, Sections 1 and 2 of the collective-bargaining
agreement states, in pertinent part, that:
PERSONNEL POLICIES AND PROCEDURES
Section 1: All NSC-SD instructions to personnel matters applicable
to Unit employees are considered a part of this AGREMENT.
Sections 2: The Employer agrees that all such proposed instructions
will be referred to the Union and upon request will provide information
concerning the regulatory provisions as well as the permissive
provisions of the basic directive. The Employer further agrees to make
available to the Union all references upon which the proposed
instruction is based.
(4) Since it is clear that Grainger was in violation of the existing
smoking policy and since he knew what the policy was at the time, I find
that Marine Corps Logistics Base, Barstow, California, 14 FLRA 772
(1984) has no application to this matter.
(5) Respondent's posting no smoking signs on the following day
September 7, 1985 does not establish a change in the areas in which
smoking was permitted. I credit testimony that the signs had been
ordered earlier and were being used to reaffirm that certain areas were
"no smoking."
(6) Based on the above, I find it unnecessary to pass on Respondent's
claim that the instant matter is barred by section 7116(d) of the
Statute.