Department of the Navy, Portsmouth Naval Shipyard (Respondent) and Portsmouth Federal Employees Metal Trades Council, AFL-CIO (Charging Party)
[ v04 p619 ]
04:0619(82)CA
The decision of the Authority follows:
4 FLRA No. 82
DEPARTMENT OF THE NAVY
PORTSMOUTH NAVAL SHIPYARD
Respondent
and
PORTSMOUTH FEDERAL EMPLOYEES
METAL TRADES COUNCIL, AFL-CIO
Charging Party
Case No. 1-CA-64
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD
NOT ENGAGED IN THE UNFAIR LABOR PRACTICE ALLEGED IN THE COMPLAINT AND
AND RECOMMENDING THAT THE UNFAIR LABOR PRACTICE COMPLAINT BE DISMISSED
IN ITS ENTIRETY. THEREAFTER, THE GENERAL COUNSEL FILED EXCEPTIONS WITH
RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
ORDER.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (5 U.S.C. 7101-7135), THE AUTHORITY HAS REVIEWED THE
RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING AND FINDS
THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE HEREBY
AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE CASE,
INCLUDING THE GENERAL COUNSEL'S EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS
THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS, NOTING THAT, WHILE SOME OF THE BACKGROUND FACTS
OCCURRED PRIOR TO THE EFFECTIVE DATE OF THE STATUTE, OUR FINDINGS AND
CONCLUSIONS ARE MADE PURSUANT TO THE STATUTE.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 1-CA-64 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., NOVEMBER 12, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
RICHARD BLAZER, ESQUIRE
RICHARD ZAIGER, ESQUIRE
OFFICE OF THE GENERAL COUNSEL
FEDERAL LABOR RELATIONS AUTHORITY
441 STUART STREET, 8TH FLOOR
BOSTON, MASSACHUSETTS 02116
FOR THE GENERAL COUNSEL
A. GENE NIRO, ESQUIRE
AREA REPRESENTATIVE
NORTHERN FIELD DIVISION
DEPARTMENT OF THE NAVY
666 SUMMER STREET, BLDG. 113, ROOM 124
BOSTON, MASSACHUSETTS 02210
FOR THE RESPONDENT
BEFORE: BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DECISION AND ORDER
STATEMENT OF THE CASE
THIS IS A PROCEEDING 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., AND THE RULES AND REGULATIONS ISSUED THEREUNDER, FED.
REG., VOL. 45, NO. 12, JANUARY 17, 1980, 5 C.F.R. CHAPTER XIV, PART
2411, ET SEQ.
PURSUANT TO AN AMENDED CHARGE FIRST FILED ON JUNE 4, 1979, BY THE
PORTSMOUTH FEDERAL EMPLOYEES METAL TRADES COUNCIL, (HEREINAFTER CALLED
THE UNION OR CHARGING PARTY), A COMPLAINT AND NOTICE OF HEARING WAS
ISSUED ON NOVEMBER 8, 1979. THE COMPLAINT ALLEGES THAT DEPARTMENT OF
THE NAVY, PORTSMOUTH NAVAL SHIPYARD, PORTSMOUTH, NEW HAMPSHIRE,
(HEREINAFTER CALLED THE RESPONDENT OR NAVY), VIOLATED SECTIONS
7116(A)(1) AND (5) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE, (HEREINAFTER CALLED THE STATUTE), BY VIRTUE OF ITS ACTION IN
REFUSING THE UNION'S REQUEST FOR CERTAIN OVERTIME INFORMATION WHICH IS
NECESSARY AND RELEVANT FOR INTELLIGENT BARGAINING.
A HEARING WAS HELD IN THE CAPTIONED MATTER ON JANUARY 31, 1980, IN
BOSTON, MASSACHUSETTS. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
BEARING ON THE ISSUES HEREIN. ALL PARTIES SUBMITTED BRIEFS WHICH HAVE
BEEN DULY CONSIDERED.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT AND
CONCLUSIONS.
FINDINGS OF FACT
THE RESPONDENT AND THE UNION, WHICH IS THE EXCLUSIVE BARGAINING
REPRESENTATIVE OF ALL UNGRADED EMPLOYEES EMPLOYED AT THE PORTSMOUTH
NAVAL SHIPYARD, ARE PARTIES TO A COLLECTIVE BARGAINING AGREEMENT
COVERING THE PERIOD JUNE 8, 1977 THROUGH JUNE 8, 1980. THE COLLECTIVE
BARGAINING AGREEMENT PROVIDES IN PERTINENT PART AS FOLLOWS:
ARTICLE 10
OVERTIME
SECTION 1. ASSIGNMENTS TO OVERTIME SHALL BE DISTRIBUTED AS FAIRLY
AND EQUITABLY AS
PRACTICABLE OVER THE LIFE OF THIS AGREEMENT UNDER THE FOLLOWING
CONDITIONS:
IN ORDER TO EFFECTIVELY AND EFFICIENTLY ACCOMPLISH THE TASKS OF THE
SHIPYARD, THE EMPLOYER
SHALL DETERMINE THE NUMBERS AND SKILLS REQUIRED FOR OVERTIME WORK AND
THE EMPLOYEES THAT
SATISFY THESE REQUIREMENTS, AND SHALL ASSIGN EMPLOYEES ACCORDINGLY.
IN THE INTEREST OF
EMPLOYEE MORALE, JOB CONTINUITY AND ECONOMY OF OPERATION, WHEN MAKING
OVERTIME ASSIGNMENTS,
FIRST CONSIDERATION SHALL BE GIVEN THOSE EMPLOYEES CURRENTLY ASSIGNED
TO THE JOB.
SECTION 5. THE EMPLOYER WILL PROVIDE THE COUNCIL, UPON REQUEST,
NECESSARY PERTINENT
SANITIZED INFORMATION CONCERNING OVERTIME HOURS WORKED TO AID IN
RESOLVING INEQUITIES IN
OVERTIME DISTRIBUTION ALLEGED BY SPECIFIC EMPLOYEES.
THE PREVIOUS CONTRACT BETWEEN THE PARTIES COVERING THE PERIOD
1969-1971 CONTAINED LANGUAGE SIMILAR TO THAT APPEARING IN ARTICLE 10,
SECTION 5 QUOTED ABOVE. THE 1966-1968 CONTRACT, HOWEVER, CONTAINED
DIFFERENT LANGUAGE WITH RESPECT TO THE SUPPLYING OF OVERTIME
INFORMATION. THUS, THE 1966-1968 CONTRACT PROVIDED IN PERTINENT PART AS
FOLLOWS:
THE EMPLOYER AGREES TO MAKE RECORDS OF OVERTIME AVAILABLE TO THE
COUNCIL UPON ITS REQUEST
FOR THE RESOLUTION OF SPECIFIC COMPLAINTS.
ACCORDING TO THE UNCONTRADICTED AND UNCHALLENGED TESTIMONY OF MR.
JOSEPH DERWIECKI, PERSONNEL OFFICER OF THE DIRECTOR OF INDUSTRIAL
RELATIONS, WHO PARTICIPATED IN THE DISCUSSIONS LEADING UP TO THE
1969-1971 CONTRACT AND THE CURRENT CONTRACT, THE MORE RESTRICTIVE
LANGUAGE, I.E., REQUIRING THE NAMES OF THE SPECIFIC EMPLOYEES ALLEGING
INQUITIES IN OVERTIME DISTRIBUTION, WAS INSERTED INTO THE CONTRACTS TO
LESSEN THE BURDEN ON THE RESPONDENT. PRIOR TO THE INSERTION OF THE
RESTRICTIVE LANGUAGE, RESPONDENT, IN RESPONSE TO THE UNION'S REQUEST FOR
OVERTIME INFORMATION, WAS FORCED TO ASSEMBLY MANY NEEDLESS AND
IRRELEVANT OVERTIME RECORDS SINCE IT WAS NOT NECESSARILY AWARE OF THE
SPECIFIC EMPLOYEE OR EMPLOYEES INVOLVED. THE MATTER WAS FURTHER
COMPLICATED BY THE FACT THAT THE UNIT EMPLOYEES, MANY OF WHOM POSSESSED
DIFFERENT TRAINING AND SKILLS, WERE SENT OUT TO WORK ON A TEMPORARY
BASIS IN DIFFERENT AREAS THROUGHOUT THE WORLD WHERE SHIP REFITTING WORK
WAS BEING CARRIED ON. SUCH AREAS INCLUDE NEW LONDON, CONNECTICUT AND
SCOTLAND. ACCORDINGLY, EMPLOYEES ON ERP (EXTENDED REFIT PERIODS) MIGHT
WELL ACHIEVE MORE OVERTIME WORK THAN SIMILAR EMPLOYEES POSSESSING LIKE
SKILLS WHO WERE WORKING SOLELY IN PORTSMOUTH. DUE TO THE DISTANCES
INVOLVED, IT WAS NOT ECONOMICALLY FEASIBLE TO INTERCHANGE EMPLOYEES FOR
PURPOSES OF EQUITABLY DISTRIBUTING OVERTIME. WITHOUT THE NAMES OF THE
SPECIFIC EMPLOYEES INVOLVED, RESPONDENT APPARENTLY WAS FORCED IN THE
PAST TO GIVE THE INFORMATION ON ALL WORKERS IRRESPECTIVE OF THE GRADES,
SKILLS, AND LOCATION INVOLVED. BY HAVING THE SPECIFIC COMPLAINANTS
NAMED, RESPONDENT COULD THEN PIN POINT THE SPECIFIC AREA AND SKILLS
INVOLVED AND CONFINE ITS INVESTIGATION OF THE OVERTIME RECORDS TO THE
PARTICULAR AREA WHERE THE NAMED EMPLOYEES WORKED. LASTLY, ACCORDING TO
MR. DERWIECKI, THE ABOVE PROBLEMS FACED BY THE RESPONDENT WERE
THOROUGHLY DISCUSSED WITH THE UNION AND AGREED TO BY ALL PARTIES PRIOR
TO THE INSERTION OF THE MORE RESTRICTIVE LANGUAGE IN THE 1969 CONTRACT.
THE OVERTIME PROVISION WAS CARRIED OVER TO THE CURRENT CONTRACT WITH
LITTLE OR NO DISCUSSION, SAVE FOR THE INSERTION OF THE WORD "SANITIZED."
THE WORD "SANITIZED" WAS INSERTED TO COMPLY WITH THE PRIVACY ACT.
LASTLY, MR. DERWIECKI COULD NOT RECALL ANY OCCASION SINCE 1969 WHEN AN
INFORMATION REQUEST WAS ACCEDED TO WITHOUT THE NAMES OF SPECIFIC
EMPLOYEES. THE ONLY EVIDENCE TO THE CONTRARY APPEARS IN THE TESTIMONY
OF MR. O'BRIEN, PRESIDENT OF THE UNION. ACCORDING TO MR. O'BRIEN IN
1974 HE REQUESTED AND RECEIVED OVERTIME INFORMATION
"FOR A THREE MONTH PERIOD IN RELATIONSHIP TO A PARTICULAR GROUP OF
EMPLOYEES THAT WERE
WORKING ON A MISSILE BOAT, RECEIVING MORE OVERTIME THAN THE OTHER
EMPLOYEES THAT WERE ASSIGNED
TO A TACK BOAT."
ON JANUARY 10, 1979, CHIEF STEWARD LAWRENCE COOPER SENT A MEMORANDUM
TO THE RESPONDENT WHEREIN HE REQUESTED "THE RECORDS OF ASSIGNMENT OF
SHOP 38 EMPLOYEES TO ALL PAST AND THE CURRENT ERP IN SCOTLAND." HE
FURTHER REQUESTED "A SUMMARY OF OVERTIME WORKED BY EMPLOYEES IN PAST ERP
ASSIGNMENTS." ACCORDING TO THE MEMORANDUM, THE "INFORMATION IS NECESSARY
TO INVESTIGATE AND PROCESS PENDING GRIEVANCE." ON JANUARY 15, 1979,
RESPONDENT SENT A MEMORANDUM TO THE UNION WHEREIN IT DENIED THE REQUEST
FOR INFORMATION ON THE GROUND THAT IT HAD "NOT RECEIVED ANY NOTICE OF
ANY ALLEGED GRIEVANCE UNDER ARTICLE 10" OF THE CONTRACT.
ON JANUARY 22, 1979, THE UNION, UNDER THE SIGNATURE OF MR. JOHN
O'BRIEN, ITS PRESIDENT, REITERATED ITS REQUEST AND CITED VARIOUS REASONS
WHY THE RESPONDENT WAS IN ERROR IN NOT ACCEDING TO THE EARLIER REQUEST.
THE LETTER CONTAINED A NUMBER OF ENCLOSURES APPARENTLY SUPPORTING THE
UNION'S POSITION. /1/
ON FEBRUARY 28, 1979, CHIEF STEWARD COOPER SENT ANOTHER MEMORANDUM TO
THE RESPONDENT WHEREIN HE STATED THAT "SOME EMPLOYEES IN SHOP 38 HAVE
ALLEGED THAT THERE IS, AND HAS BEEN, GROSS INEQUITIES IN THE
DISTRIBUTION OF OVERTIME DURING THE LIFE OF THE CURRENT AGREEMENT." MR.
COOPER THEN WENT ON TO REQUEST "THE LISTS OF OVERTIME DISTRIBUTION FROM
22 JULY TO THE PRESENT DATE." /2/ BY MEMORANDUM /3/ DATED MARCH 15,
1979, RESPONDENT DENIED THE UNION'S FEBRUARY 28, 1979, REQUEST STATING
IN PERTINENT PART AS FOLLOWS:
ARTICLE 10, SECTION 5 OF THE AGREEMENT DOES NOT PROVIDE FOR THE
WHOLESALE RELEASE OF SUCH
INFORMATION AND YOUR REQUEST IS CLEARLY INCONSISTENT WITH THE INTENT
OF THAT PROVISION. THAT
ARTICLE AND SECTION MAKE PROVISION FOR THE RELEASE TO THE COUNCIL OF
NECESSARY, PERTINENT, AND
SANITIZED OVERTIME INFORMATION IN ORDER TO RESOLVE SPECIFIC PROBLEMS,
ALLEGED BY SPECIFIC
EMPLOYEES, CONCERNING SPECIFIC OVERTIME ASSIGNMENTS. YOUR LETTER OF
FEBRUARY 28, 1979, DOES
NOT INDICATE A SPECIFIC PROBLEM, IDENTIFY A SPECIFIC EMPLOYEE NOR
REFER TO A SPECIFIC OVERTIME
ASSIGNMENT. YOUR LETTER IS CONSTRUED TO BE NOTHING MORE THAN A
"FISHING EXPEDITION." YOUR
REQUEST IS CONSIDERED UNREASONABLE AND IS DENIED.
ON MARCH 15, 1979, A SECOND MEMORANDUM WAS SENT TO MR. JOHN O'BRIEN,
UNION PRESIDENT. THIS MEMORANDUM EXPLAINED WHY RESPONDENT HAD DENIED
CHIEF STEWARD COOPER'S ORIGINAL REQUEST OF JANUARY 10 FOR THE OVERTIME
AND ERP RECORDS OF ALL EMPLOYEES ASSIGNED TO SCOTLAND, NOTED THAT
"DURING THE PROCESSING OF THIS GRIEVANCE" THE UNION HAD MADE ITS REQUEST
MORE SPECIFIC, AND MADE AVAILABLE TO THE UNION ALL THE INFORMATION
REQUESTED BY MR. COOPER IN HIS JANUARY 10TH MEMORANDUM, I.E. A SUMMARY
OF OVERTIME WORKED BY EMPLOYEES ON PAST ERP ASSIGNMENTS AND THE RECORDS
OF ASSIGNMENTS OF SHOP 38 EMPLOYEES TO ERP WORK IN SCOTLAND.
ON JUNE 4, 1979, THE UNION FILED THE CHARGE UNDERLYING THE INSTANT
COMPLAINT. THE CHARGE IS BASED SOLELY UPON THE RESPONDENT'S REFUSAL TO
SUPPLY THE OVERTIME RECORDS FOR ALL SHOP 38 EMPLOYEES WHICH WERE
REQUESTED BY MR. COOPER IN HIS FEBRUARY 28, 1979, MEMORANDUM. IN
CONNECTION WITH THIS REQUEST, THE RECORD INDICATES THAT PRIOR TO THE
FILING OF PRE-COMPLAINT CHARGE ON APRIL 9, 1979, RESPONDENT WAS NEVER
GIVEN THE NAMES OF ANY SPECIFIC EMPLOYEES. ATTACHED TO THE
PRE-COMPLAINT CHARGE WERE FIVE GRIEVANCE FORMS SIGNED BY 6 DIFFERENT
EMPLOYEES FROM SHOP 38. ALL THE GRIEVANCES, WHICH BORE DATES
1/10/79-1/22/79, READ AS FOLLOWS:
1. I HAVE NOT BEEN GIVEN FAIR OR EQUITABLE CONSIDERATION FOR
OVERTIME ASSIGNMENTS, SPECIFICALLY, ERP'S TO SCOTLAND.
2. ALL ERP'S ARE SCHEDULED OVERTIME ASSIGNMENTS.
3. OVERTIME ASSIGNMENTS HAVE NOT BEEN AND ARE NOT BEING DISTRIBUTED
FAIRLY AND EQUITABLY IN ACCORDANCE WITH THE UNION AGREEMENT.
ACCORDING TO MR. MASON, RESPONDENT'S LABOR RELATIONS SPECIALIST,
RESPONDENT CONSIDERED THE ATTACHED GRIEVANCES QUOTED ABOVE TO BE PART
AND PARCEL OF THE ORIGINAL REQUEST OF ERP DATA WHICH HAD BEEN SUPPLIED
ON MARCH 15, 1979. BASED UPON THIS CONCLUSION, RESPONDENT WAS OF THE
OPINION THAT THE UNION HAD NOT COMPLIED WITH THE CONTRACTUAL PROVISION
REQUIRING THE NAMES OF THE SPECIFIC EMPLOYEES CLAIMING INEQUITABLE
DISTRIBUTION OF OVERTIME. ACCORDINGLY, THE INFORMATION REQUESTED IN MR.
COOPER'S FEBRUARY 28, 1979 MEMORANDUM WAS NOT SUPPLIED.
THE RECORD FURTHER DISCLOSES THAT MR. COOPER, WHOSE NAME WAS THE ONLY
ONE ON THE FEBRUARY 28, 1979, MEMORANDUM, SPENT ALL OF HIS TIME ON UNION
BUSINESS.
DISCUSSION AND CONCLUSIONS
IT IS WELL SETTLED AND ACKNOWLEDGED BY ALL PARTIES TO THIS PROCEEDING
THAT A UNION HAS A RIGHT TO INFORMATION SOLELY WITHIN AN EMPLOYER'S
POSSESSION WHICH IS NECESSARY AND RELEVANT TO THE UNION'S
REPRESENTATIONAL RESPONSIBILITIES. SUCH RIGHT EXTENDS NOT ONLY TO
INFORMATION NECESSARY TO PROCESS A PENDING GRIEVANCE BUT ALSO TO
INFORMATION NECESSARY TO DETERMINE WHETHER OR NOT TO FILE A GRIEVANCE IN
THE FIRST INSTANCE. DEPARTMENT OF TREASURY, INTERNAL REVENUE SERVICE
AND IRS MILWAUKEE DISTRICT, A/SLMR NO. 1133; UNITED STATES DEPARTMENT
OF AGRICULTURE, FOREST SERVICE, BERKELEY, CALIFORNIA, A/SLMR NO. 573;
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY
ADMINISTRATION, KANSAS CITY PAYMENT CENTER, A/SLMR NO. 411.
RESPONDENT, WHICH ACKNOWLEDGES THE FOREGOING RIGHT OF THE UNION TO
NECESSARY AND RELEVANT INFORMATION, TAKES THE POSITION THAT BY AGREEING
TO ARTICLE 10, SECTION 5, OF THE CURRENT COLLECTIVE BARGAINING AGREEMENT
THE UNION RESTRICTED OR WAIVED ITS BROAD RIGHT TO OVERTIME INFORMATION.
IN SUPPORT OF ITS POSITION IT CITES THAT PART OF ARTICLE 10, SECTION 5,
WHICH LIMITS THE INFORMATION TO "INEQUITIES IN OVERTIME DISTRIBUTION
ALLEGED BY SPECIFIC EMPLOYEES." ADDITIONALLY, RESPONDENT RELIES UPON THE
TESTIMONY OF MR. JOSEPH DERWIECKI CONCERNING THE DISCUSSIONS LEADING UP
THE INCORPORATION OF THE PROVISION IN THE 1969-71 CONTRACT.
THE GENERAL COUNSEL, ON THE OTHER HAND, TAKES THE POSITION THAT
INASMUCH AS THE LANGUAGE APPEARING IN ARTICLE 10, SECTION 5 IS NOT CLEAR
AND UNEQUIVOCAL ON ITS FACE, INSUFFICIENT BASIS EXISTS TO SUPPORT A
FINDING OF WAIVER. THE GENERAL COUNSEL ALSO OBJECTS TO RELIANCE UPON
THE EXPLANATORY TESTIMONY OF MR. DERWIECKI, CITING THE PAROLE EVIDENCE
RULE. I FIND THIS LATTER CONTENTION TO BE WITHOUT MERIT SINCE THE RULES
OF EVIDENCE ARE NOT APPLICABLE TO PROCEEDINGS BEFORE THE FEDERAL LABOR
RELATIONS AUTHORITY AND BECAUSE IT IS VIRTUALLY IMPOSSIBLE TO DETERMINE
WHETHER OR NOT THERE WAS A CONSCIOUS WAIVER OF A RIGHT WITHOUT
CONSIDERING OR EXPLORING THE NEGOTIATIONS LEADING UP TO A CONTRACTUAL
PROVISION WHICH ON ITS FACE INDICATES A RESTRICTION UPON A UNION'S
STATUTORY RIGHT.
CONTRARY TO THE CONTENTION OF THE GENERAL COUNSEL, I FIND THAT THE
LANGUAGE IN ARTICLE 10, SECTION 5, CONSTITUTES A RESTRICTION UPON THE
UNION'S GENERAL OR BROAD RIGHT TO OVERTIME INFORMATION. TO HOLD
OTHERWISE WOULD MAKE THE WORDS "TO AID IN RESOLVING INEQUITIES IN
OVERTIME DISTRIBUTION ALLEGED BY SPECIFIC EMPLOYEES" BOTH SUPERFLUOUS
AND MEANINGLESS. THIS CONCLUSION IS FURTHER BUTTRESSED BY THE
UNCONTESTED TESTIMONY OF MR. DERWIECKI CONCERNING THE DISCUSSION LEADING
UP THE INCORPORATION OF THE QUALIFYING WORDS IN THE 1969-71 PREDECESSOR
AGREEMENT. PRIOR TO THIS CHANGE, THE UNION ONLY HAD TO MAKE A "SPECIFIC
COMPLAINT" ABOUT OVERTIME AND NOT NAME ANY SPECIFIC EMPLOYEES IN ORDER
TO GET THE OVERTIME RECORDS.
HAD THE INSTANT DEMAND OCCURRED DURING NEGOTIATIONS FOR A NEW
CONTRACT I MIGHT WELL REACH A DIFFERENT CONCLUSION. HOWEVER, THIS IS
NOT THE CASE. THE DEMAND INVOLVED HEREIN WAS FOR PURPOSES OF PROCESSING
OR DECIDING TO PROCESS A GRIEVANCE OVER THE DISTRIBUTION OF OVERTIME.
IN SUCH CIRCUMSTANCES THE UNION WAS BOUND BY THE LANGUAGE OF ARTICLE 10,
SECTION 5, OF THE COLLECTIVE BARGAINING AGREEMENT.
WHILE I AM AWARE THAT A WAIVER IS NOT TO BE LIGHTLY INFERRED, THE
FACTS OF THE INSTANT CASE CONVINCE ME THAT THE UNION KNOWINGLY
RELINQUISHED AND/OR RESTRICTED ITS ABSOLUTE RIGHT TO OVERTIME
INFORMATION WHEN IT AGREED TO THE LANGUAGE OF ARTICLE 10. CF. INTERNAL
REVENUE SERVICE, NATIONAL OFFICE, OFFICE OF INTERNATIONAL OPERATIONS,
A/SLMR NO. 1079.
TURNING TO THE FACTS OF THE INSTANT CASE IN LIGHT OF THE VIEWS AND
CONCLUSIONS RECITED ABOVE, I FIND THAT THE UNION DID NOT ADHERE TO THE
RESTRICTIONS INCLUDED IN ARTICLE 10, SECTION 5, OF THE COLLECTIVE
BARGAINING AGREEMENT AND THEREFORE WAS NOT ENTITLED TO THE OVERTIME
RECORDS. THE FACT THAT SOME TWO MONTHS LATER RESPONDENT WAS SHOWN SOME
AMBIGUOUS GRIEVANCES IN CONNECTION WITH THE ERRONEOUS FILING OF A
PRE-COMPLAINT CHARGE DOES NOT ALTER THIS CONCLUSION, PARTICULARLY IN THE
ABSENCE OF ANY EVIDENCE INDICATING THAT THE UNION AT SUCH TIME WAS
ATTEMPTING TO PERFECT ITS BROAD DEMAND OF FEBRUARY 28, 1979, FOR A LIST
OF ALL THE OVERTIME WORKED SINCE JULY 22ND. LASTLY, IN VIEW OF THE FACT
THAT MR. COOPER WORKED FULL TIME AS A UNION STEWARD AND WAS NOT NAMED AS
A SPECIFIC GRIEVANT IN THE FEBRUARY 28TH REQUEST FOR THE GENERAL
OVERTIME INFORMATION, I FIND HIS SIGNATURE ALONE ON THE FEBRUARY 28TH
REQUEST TO FALL SHORT OF THE REQUIREMENTS IMPOSED BY ARTICLE 10, SECTION
5, OF THE CURRENT COLLECTIVE BARGAINING AGREEMENT. ACCORDINGLY, IN LINE
WITH ABOVE ANALYSIS, FINDINGS AND CONCLUSIONS, I SHALL ORDER THAT THE
COMPLAINT BE DISMISSED IN ITS ENTIRETY.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 18, 1980
WASHINGTON, D.C.
--------------- FOOTNOTES$ ---------------
/1/ GC-4 WHICH IS THE JANUARY 22, 1979 LETTER FROM MR. O'BRIEN DOES
NOT INCLUDE THE ENCLOSURES CITED IN THE LETTER.
/2/ THE RECORD INDICATES THAT THERE WERE APPROXIMATELY 400 EMPLOYEES
IN SHOP 38, WHICH IS AN "OUTSIDE MACHINE SHOP."
/3/ THE MEMORANDUM WAS ADDRESSED TO CHIEF STEWARD COOPER.