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28 FLRA No. 33

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
 (19 FLRA 790)

DECISION AND ORDER ON REMAND

I . Statement of the Case

This case is before the Authority on remand from the United States Court of Appeals for the District of Columbia Circuit for further explanation or reconsideration of the question of whether information requested by the Charging Party (the Union) regarding discipline of management officials and supervisors was necessary for the Union to represent a bargaining unit employee.

II . History of the Case

A . Background

In the course of representing a bargaining unit employee in a disciplinary action in which the employee was alleged to have made certain false statements, the Union requested information regarding the discipline of other employees, including management officials, for similar misconduct. The Union requested the information because of an alleged appearance of disparate treatment of the bargaining unit employee. The Union indicated that it was not interested in identifying the individuals involved in any other similar situations and that it had no objection to receiving sanitized documents. The Respondent denied the request and its refusal to furnish the information led to the filing of an unfair labor practice charge and eventually to the issuance of the complaint in this case. [PAGE]

B . Administrative Law Judge's Decision

The Judge concluded that the Respondent violated section 7116(a)(1), (5) and (8) of the Federal Service Labor - Management Relations Statute (the Statute) by failing to comply with section 7114 (b)(4) when it refused to provide the Union with the requested information. In reaching that conclusion, the Judge found, in pertinent part, that the information concerning the discipline of management officials and supervisors was necessary and relevant to assist the Union in fulfilling its representational responsibilities under the Statute. The Judge reasoned that while the Respondent's standards of conduct for unit and managerial employees may differ, if disparate treatment for similar misconduct could be established, an arbitrator or other deciding official might take that fact into account when assessing what penalty, if any, should be imposed. The Respondent filed exceptions to the Judge's decision with the Authority.

C . Previous Decision and Order of the Authority

On August 19, 1985, the Authority issued its Decision and Order in the case, Department of Defense Dependents Schools, Washington, D.C. and Department of Dependents Schools, Germany Region, 19 FLRA 790 (1985). The Authority disagreed with the Judge's determination that the Respondent was obligated to furnish the Union with information concerning the discipline of supervisors or management officials. The Authority rejected the Judge's rationale and found that since supervisors and management officials perform different duties and functions, the Respondent was governed by different considerations in deciding the degree of discipline appropriate for them. Therefore, the Authority further found that supervisors and management officials ordinarily were not similarly situated to unit employees for purposes of showing disparity of treatment in a grievance. The Authority concluded that the information requested regarding management officials and supervisors was not necessary to assist the union in discharging its responsibilities under the Statute. The Authority therefore dismissed this portion of the complaint. The Union appealed this aspect of the Authority's decision.

D . The Court's Decision

On November 21, 1986, the court issued its decision in the case, North Germany Area Counsil, Overseas Education Association v. FLRA, 805 F.2d 1044 (D.C. Cir. 1986). [ v28 p2 ]

The court found that while the Authority's decision seemed to suggest that the standards of conduct for unit and managerial employees might differ, the Authority did not provide guidance for determining why the standards differed in this case. The court found that the Authority failed to explain what, if any, weight was to be assigned to evidence in this case that supervisors and unit employees are disciplined disparately. The court noted that arbitrators regularly consider such evidence as relevant in determining whether a unit employee was disciplined for just cause.

The court further found that while not controlling, the findings and conclusions of the Administrative Law Judge conformed generally with the approach of the National Labor Relations Board in similar cases in the private sector, citing E.I. DuPont de Nemours v. NLRB, 744 F.2d 536 (6th Cir. 1984).

The court noted that when a union seeks nonbargaining unit information, the burden is on the union to establish the relevance of the information without the benefit of any presumption of relevance, but that the Board need only find that the information is relevant and useful to the union in carrying out its statutory responsibilities. The court also noted that it has similarly ruled that a liberal standard for assessing the relevance of requested information should be applied, citing Local 13, Detroit Newspaper Printing and Graphic Communications Union, International Printing and Graphic Communications Union, AFL - CIO, 598 F.2d 267, 271 (D.C. Cir. 1979).

The court concluded that the Authority did not explain adequately why supervisors and unit employees might be subject to different standards in offenses involving dishonesty just because they perform different duties, and why the information requested by the Union regarding the discipline of managers and supervisors was not necessary to assist the Union in its representation of a unit employee. The court therefore remanded the case to the Authority for further explanation or reconsideration of this issue.

III . Analysis and Conclusions

We have fully reviewed the record in this case in light of the court's decision and our more recent precedent. For the reasons discussed below, we reverse the Authority's previous decision that the Respondent was not required to furnish the Union with the information concerning the discipline of supervisors and management officials. [ v28 p3 ]

Under section 7114(b)(4) of the Statute, an agency is required to furnish the exclusive representative of its employees, upon request and to the extent not prohibited by law, 1 information that is necessary to enable the union to fulfill its representational responsibilities. For example, Internal Revenue Service, National Office, 21 FLRA No. 82 (1986); U.S. Department of Labor, Office of the Assistant Secretary for Administration and Management, 26 FLRA No. 109 (1987).

The Union sought the information concerning the discipline of management officials and supervisors for making false statements to establish whether the unit employee was being treated differently for the same or similar misconduct. We find that the information was necessary for the Union to effectively develop and present its arguments in the disciplinary action proceeding. Access to the information sought was particularly necessary in this case because, as the Administrative Law Judge and the court found, there was evidence of a number of relevant situations in which management officials were alleged to have made false statements.

We therefore conclude that the information requested by the Union was necessary within the meaning of section 7114(b)(4) of the Statute for the Union to effectively represent the unit employee in the disciplinary action proceeding. We further conclude, in agreement with the Administrative Law Judge, that the Respondent violated section 7116(a)(1), (5) and (8) of the Statute by refusing to provide the Union with the information.

In reversing in part the Authority's previous decision in this case, the original Order and Notice must be amended accordingly. [ v28 p4 ]

AMENDED ORDER 2

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor - Management Relations Statute, 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 or management employees proposed during the 3-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 discipline or adverse actions in the Germany Region against bargaining unit or management employees proposed during the 3-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 [ v28 p5 ] be signed by an appropriate official, and shall be posted and maintained for 60 consecutive days thereafter, excluding holidays and vacations, in conspicious 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 with this Order.

Issued, Washington, D.C., July 28, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v28 p6 ]

               NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
        AND TO EFFECTUATE THE POLICIES OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
            WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail or refuse to furnish the 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 3-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 3-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)       (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 I, Federal Labor Relations Authority, whose address is: 10 Causeway Street, Room 1017, Boston, Massachusetts 02222-1046, and whose telephone number is: (617) 565-7280. [PAGE]

FOOTNOTES

Footnote 1 We note the Union's willingness to receive the information requested in sanitized form and the fact that there is no allegation in this case that providing the information in sanitized form is prohibited by the Privacy Act, 5 U.S.C. 552a.

Footnote 2 With regard to the posting provisions of this Order, holidays and vacations are excluded from the required posting period due to the nature of teachers' work periods during the school year.

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