[ v13 p392 ]
13:0392(65)CA
The decision of the Authority follows:
13 FLRA No. 65
ARMY AND AIR FORCE EXCHANGE
SERVICE (AAFES)
LOWRY AIR FORCE BASE EXCHANGE
FT. CARSON, COLORADO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2865
Labor Organization
Case Nos. 7-CA-653
7-CA-712
DECISION AND ORDER
The Administrative Law Judge issued his Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the consolidated complaint and
recommending that the complaint be dismissed. Thereafter, the General
Counsel filed exceptions to the Judge's Decision.
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 and conclusions as modified herein, and rejects his
recommendation that the complaint be dismissed.
The Judge found that the Respondent did not violate section
7116(a)(1), (5) and (8) of the Statute /1/ when it required the Union to
pay $93.50 as a condition precedent to providing the Union with certain
overtime records. While the Judge found that the Respondent had a duty
under section 7114(b)(4) of the Statute /2/ to provide the Union with
data normally maintained relating to unit employees' overtime, he
concluded that the Respondent's obligation did not extend, as alleged,
to providing the Union, free of charge, with copies of relevant
documents.
The Authority adopts the Judge's threshold finding that the
Respondent had a duty under section 7114(b)(4) to provide the Union with
the unit employees' overtime data sought herein. /3/ However, contrary
to the Judge, and in accordance with our decision in Veterans
Administration Regional Office, Denver, Colorado, 10 FLRA No. 78 (1982)
(issued subsequent to the Judge's Decision herein), the Authority finds
for the reasons stated in Veterans Administration that the Respondent's
obligation to "furnish" such data requires the Respondent to provide a
copy without cost to the exclusive representative. Accordingly, the
Respondent's refusal to do so constituted a failure to meet the duty to
bargain in good faith and noncompliance with section 7114(b)(4) of the
Statute in violation of section 7116(a)(1), (5) and (8) of the Statute.
/4/
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that Army and Air Force Exchange Service (AAFES), Lowry
Air Force Base Exchange, Ft. Carson, Colorado, shall:
1. Cease and desist from:
(a) Failing and refusing to provide, without charge, to the American
Federation of Government Employees, AFL-CIO, Local 2865, the employees'
exclusive representative, a copy of the requested data relating to unit
employees' overtime.
(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) Provide, without charge, to the American Federation of Government
Employees, AFL-CIO, Local 2865, the employees' exclusive representative,
a copy of the requested data relating to unit employees' overtime.
(b) Post at its facilities at the Army and Air Force Exchange
Service, Lowry Air Force Base Exchange, Ft. Carson, Colorado, 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 of the Army and Air Force Exchange Service,
Lowry Air Force Base Exchange, Ft. Carson, Colorado, and shall be posted
and maintained by him for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where notices to
employees are customarily posted. The appropriate official shall take
reasonable steps to insure that such Notices are not altered, defaced,
or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VII, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the other allegations of the consolidated
complaint in Case Nos. 7-CA-653 and 7-CA-712 be, and they hereby are,
dismissed.
Issued, Washington, D.C., November 9, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to provide, without charge to the American
Federation of Government Employees, AFL-CIO, Local 2865, our employees'
exclusive representative, a copy of the requested data relating to unit
employees' overtime. 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 Statute. WE WILL provide, without charge to
the American Federation of Government Employees, AFL-CIO, Local 2865,
our employees' exclusive representative, a copy of the requested data
relating to unit employees' overtime.
(Agency or Activity)
Dated: . . . By: (Signature) (Title) This Notice must remain posted
for 60 consecutive days from the date of posting, and must not be
altered, defaced, or covered by any other material. If employees have
any questions concerning this Notice or compliance with its provisions,
they may communicate directly with the Regional Director, Region VII,
Federal Labor Relations Authority, whose address is: Federal Building &
U.S. Customs House, 1531 Stout Street, Suite 301, Denver, Colorado 80202
and whose telephone number is: (303) 837-5224.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 7-CA-653, 7-CA-712
Luther G. Jones, III, Esq.
For the Respondent
Gavin K. Lodge, Esq.
For the General Counsel
Before: ALAN W. HEIFETZ
Administrative Law Judge
DECISION
Statement of the Case
This proceeding arose pursuant to the Federal Service
Labor-Management Relations Statute, 5 U.S.C. 7101 et seq., as a result
of unfair labor practice charges filed on July 15 and August 19, 1980,
with the Federal Labor Relations Authority. Consequently, on September
24, 1980, the Regional Director, Region VII, of the Authority issued an
Order Consolidating Cases, Complaint and Notice of Hearing alleging that
Respondent had violated Section 7116(a)(1), (5) and (8) by: (1)
refusing to furnish the Union data that the Union had requested
consisting of certain overtime and compensatory records of unit
employees; and (2) requiring the Union to pay $93.50 as a condition
precedent to its furnishing the Union certain sanitized overtime
records.
A hearing was held on February 23, 1981, in Denver Colorado. All
parties were afforded full opportunity to examine witnesses and to
introduce evidence. Post hearing briefs have been filed and considered.
Upon the entire record, including my observation of the witnesses and
their demeanor, I make the following findings, conclusions and
recommendation.
Findings of Fact
During a publicity drive for the Union, William Bleau, then a
national representative for the Union, began an investigation of
Respondent's pay practices as a result of certain information brought to
his attention by employees at the Army and Air Force Exchange Service
(AAFES), Lowry Air Force Base Exchange.
By letter dated June 26, 1980, Mr. Bleau requested under Section
7114(b)(4) of the Statute "all records on overtime or compensatory time
given to Bargaining Unit employees from 30 March 1978 to present."
Responding on July 2, 1980, not to Mr. Bleau, but rather to Carol
Harper, president of the Union, Respondent advised that " . . . since
this matter carries Privacy Act and Freedom of Information Act (FOIA)
implications, (it has been forwarded) as a FOIA request to Headquarters,
AAFES, for disclosure determination." /5/
On July 8, 1980, Mr. Bleau again made a written request under Section
7114(b)(4) of the Statute for the data he had requested in his June 26
letter. A "Memo Routing Slip" dated July 10, 1980, informed Mr. Bleau
that the matter was "being reviewed by General Counsel as previously
indicated in our letter to Carol Harper dated 2 July 1980." Shortly
thereafter, Mr. Bleau filed the first charge in this case.
By letter dated July 30, 1980, Respondent advised the Union that (1)
"compensatory records cannot be provided"; (2) overtime records would
be provided in a sanitized form to comply with the Privacy Act; and (3)
the Union would have to pay, in advance, $93.50 to cover the estimated
cost to Respondent for processing the request. This response prompted
the second charge in this case.
The Union made no further request or inquiry with regard to the
records it sought. It never sought merely to inspect the records or to
copy them by its own means.
Respondent does not maintain any records of compensatory time. The
charges required of the Union for reproduction of the data were
estimated under its Freedom of Information Request regulations and those
charges have not been challenged as being unreasonable. Respondent's
regulations provide several reasons for waiving charges for document
reproduction including one when the recipient is engaged in "a nonprofit
activity . . . for public safety, health or welfare." On one occasion,
Mr. Bleau received at no charge a copy of an affidavit in Respondent's
possession. Respondent does not charge its contractors and vendors for
copies of materials sent in the regular course of business.
Discussion and Conclusions
The General Counsel correctly argues that AAFES has a duty under
Section 7114(b)(4) of the Statute to provide the Union with data,
normally maintained by it, relating to employee overtime and
compensatory time, for use in investigation of employee concerns
regarding pay matters. Respondent does not deny this obligation, but it
correctly counters that it is not an unfair labor practice to fail to
produce documents that do not exist. /6/ The General Counsel concedes
this point with regard to the nonexistent compensatory time records, but
also argues persuasively that Respondent's less than candid statement
that "compensatory records cannot be provided" reveals less than a
forthright approach to labor-management relations. Respondent, on
brief, acknowledges a "poor choice of words".
The sole issue remaining in this case is whether a Union is entitled
to receive, free of charge, copies of documents to which it may lawfully
have access under the Statute. /7/ The Statute is silent as to the
conditions under which an agency is to "furnish" information. The
legislative history is similarly silent, and Counsel for the General
Counsel has not cited, nor is there any, decisional authority for the
proposition that an agency must assume the financial obligation arising
out of the Union's request for information. As a matter of fact, my
learned colleague, Administrative Law Judge Salvatore J. Arrigo, after
analyzing similar cases before the National Labor Relations Board which
found that an employer was not obligated to assume such a financial
burden, concluded that the same result should obtain in the public
sector. /8/ I reach the same conclusion and find additional support for
it in the legislative history as it pertains to official time.
Section 7131 of the Statute pertains to official time to be granted
employees conducting activities on behalf of their unions. That section
and its legislative history speak to four circumstances under which is
raised the question who should bear the cost of an employee's time: /9/
(1) where the employee represents an exclusive representative in the
negotiation of a collective bargaining agreement; (2) where the
employee engages in activities relating to the internal business of a
labor organization; (3) where the employee participates in a proceeding
before the Authority; and (4) in other circumstances where the employee
represents, or is represented by, an exclusive representative. In (1),
official time shall be granted; in (2), the employee shall be in
nonduty status; in (3), the Authority shall determine whether to
authorize official time; and in (4), the agency and the union,
together, are to determine the amount of official time which will be
"reasonable, necessary, and in the public interest".
The Statute recognizes then, that certain specified activity warrants
the "expenditure" of official time by the agency; certain specified
conduct does not; and all other related activity requires agreement of
labor and management as to what is "reasonable, necessary, and in the
public interest." Although the Senate version of the Statute contained
only two parts in its provision for official time, one disallowing
official time for internal union activities and the other providing for
limited negotiation of official time for contract negotiations, the
legislative history noted that nothing in the provision prohibited an
agency and a union from negotiating for official time to cover
representational activities, other than contract negotiations, where
consistent with the purposes of the Statute, one purpose being the
efficient operation of the government. /10/ In the legislative history
of the House of Representatives version, which did become law,
Congressman Ford noted that official time for preparation for such
"interface" activities as "negotiations, grievances, negotiability
disputes, and unfair labor practices" is the subject of negotiated
agreement between the agency and the exclusive representative. /11/ And
as passed, the Statute provides at the outset in Section 7101 that, "The
provisions of this chapter should be interpreted in a manner consistent
with the requirement of an effective and efficient Government."
Thus Congress, in its consideration specifically of official time,
recognized that consistent with "efficient" operation of the government,
expenditure of official time for various unenumerated labor-management
activities should be permitted where it is negotiated between the agency
and the union and where such expenditure would be "reasonable,
necessary, and in the public interest". Parallel considerations dictate
application of such a principal to an agency's obligation to furnish
photocopies of records. Efficient operation of government would not be
consistent with an obligation to furnish photocopies of whatever an
exclusive representative may demand willy-nilly. Conversely, a
reasonable response to a request for photocopies of a few pages,
especially where the request would save the exclusive representative the
time of hand copying and might also save the agency time in resolving
any related dispute, would not be to require the union to fill out a
long series of forms and to submit a check for a few cents. Somewhere
in between there is grounds for negotiation over what would be
"reasonable, necessary, and in the public interest". In considering the
obligation of an agency to "furnish" data to an exclusive
representative, Congress made no finding of any specified circumstance
under which the agency must assume a financial obligation in connection
with the requirement that it furnish the data. Since the Statute is
silent in that regard, the inescapable conclusion is that an agency has
no affirmative obligation to provide photocopies of data at no charge.
However, since the Statute is likewise silent as to any circumstances
under which an agency may not provide free photocopies, one must also
conclude that there is no statutory prohibition against that practice.
Finally, since nothing in the Statute prohibits an agency and a union
from negotiating for free photocopies of data where consistent with the
purposes of the Statute, that avenue provides a proper approach to
resolving such requests.
Having found and concluded that the Respondents did not violate the
Statute as alleged, I recommend that the Federal Labor Relations
Authority issue the following order pursuant to 5 CFR 2423.29(c):
ORDER
ORDERED, that the complaint in Case Nos. 7-CA-653 and 7-CA-712 is
dismissed.
ALAN W. HEIFETZ
Administrative Law Judge
Dated: April 24, 1981
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ Section 7116(a)(1), (5) and (8) provides:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
. . . .
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter;
. . . .
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
/2/ Section 7114(b)(4) provides:
Sec. 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(.)
/3/ There is no contention before the Authority that the data
requested herein is "prohibited by law" from being furnished. Veterans
Administration Regional Office, Denver, Colorado, 10 FLRA No. 78, n. 5
(1982).
/4/ See also Veterans Administration, Iron Mountain, Michigan, 10
FLRA No. 79 (1982).
/5/ Mr. Bleau did not see this letter until some time after July 2.
/6/ Internal Revenue Service and Brooklyn District Office, IRS, 1
FLRA No. 89 (July 31, 1979).
/7/ In his opening statement, Counsel for Respondent opined that the
obligation to provide information was subject to the Privacy Act, 5
U.S.C. 552; however, this contention was not pressed on brief. Counsel
for the General Counsel, in his brief, correctly cites cases under the
Executive Order which recognize that the right to information arises
independently from the Privacy Act and the Freedom of Information Act.
However, Counsel for the General Counsel would have me go further and
find that an offer of sanitized records violates the Union's rights
under the Statute. That I cannot do. In order to reach that issue, the
records themselves would have to be in evidence in order to balance the
conflicting rights of the Union's access to the information and the
individual's right to privacy. Here those records are not in evidence
and, therefore, the question whether they may be sanitized is not
properly before me.
/8/ Veterans Administration Regional Office, Denver, Colorado, Case
No. 7-CA-365, OALJ-81-032 (January 23, 1981).
/9/ An employee's time is no less a cost than is a photocopy of a
document. It is no less true today that "our costliest expenditure is
time." Theophrastus (c. 370-287 B.C.), quoted in Diogenes Laertius'
Lives and Opinions of Eminent Philosophers (3rd c. A.D.).
/10/ Legislative History of the Federal Service Labor-Management
Relations Statute, Title VII of the Civil Service Reform Act of 1978,
Committee Print No. 96-97, Committee on Post Office and Civil Service,
House of Representatives, 96th Cong., 1st Sess., Nov. 19, 1979; pp.
772-773.
/11/ Id. at p. 957.