[ v10 p453 ]
10:0453(78)CA
The decision of the Authority follows:
10 FLRA No. 78
VETERANS ADMINISTRATION REGIONAL OFFICE,
DENVER, COLORADO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1557
Charging Party
Case No. 7-CA-365
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 COMPLAINT AND RECOMMENDING
THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY. THEREAFTER, THE
GENERAL COUNSEL FILED EXCEPTIONS TO THE JUDGE'S DECISION AND A
SUPPORTING BRIEF, AND THE RESPONDENT FILED AN OPPOSITION THERETO. /1/
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, CONCLUSIONS AND RECOMMENDATIONS ONLY TO THE EXTENT
CONSISTENT HEREWITH.
THE JUDGE FOUND THAT THE RESPONDENT DID NOT VIOLATE SECTION
7116(A)(1), (5) AND (8) OF THE STATUTE, /2/ AS ALLEGED IN THE COMPLAINT,
BY REQUIRING THE CHARGING PARTY, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1557 (THE UNION), TO PAY FOR "A COPY OF EACH
DOCUMENT" REQUESTED FROM AN EMPLOYEE'S PERSONNEL FOLDER IN CONNECTION
WITH A GRIEVANCE FILED BY THE EMPLOYEE UNDER THE PARTIES' NEGOTIATED
AGREEMENT. WHILE THE JUDGE FOUND THAT THE DATA REQUESTED BY THE UNION
AS THE EMPLOYEE'S EXCLUSIVE REPRESENTATIVE WAS NECESSARY AND RELEVANT TO
ENABLE THE UNION TO FULFILL ITS LEGITIMATE REPRESENTATIONAL ROLE IN
PROCESSING THE EMPLOYEE'S GRIEVANCE, AND CONCLUDED THAT UNDER SECTION
7114(A)(1) OF THE STATUTE /3/ THE UNION WAS ENTITLED TO "ACCESS TO THE
DOCUMENTS CONTAINED IN THE FILE," HE REJECTED THE GENERAL COUNSEL'S
ASSERTION THAT THE RESPONDENT WAS OBLIGATED UNDER SECTION 7114(B)(4) OF
THE STATUTE /4/ TO PROVIDE THE UNION A COPY OF THE REQUESTED DATA FREE
OF CHARGE. IN THIS LATTER REGARD, THE JUDGE DETERMINED, AMONG OTHER
THINGS, THAT "(S)ECTION 7114(B)(4) MERELY REQUIRES THAT AN AGENCY
'FURNISH' DATA AND IS SILENT AS TO THE CONDITIONS UNDER WHICH THE
INFORMATION IS TO BE FURNISHED, INCLUDING WHETHER A CHARGE MAY BE
EXACTED FOR THE SERVICE PROVIDED;" AND THAT "(T)HE LEGISLATIVE HISTORY
OF THE STATUTE REGARDING THIS SECTION DOES NOT ADDRESS THE MATTER OF A
CHARGE FOR DATA." FINDING NO PERSUASIVE ARGUMENT IN SUPPORT OF THE
EXISTENCE OF AN OBLIGATION UNDER THE STATUTE ON THE PART OF THE
RESPONDENT TO PROVIDE THE UNION A COPY OF THE DOCUMENTS IN QUESTION
WITHOUT CHARGE, THE JUDGE CONCLUDED THAT THE RESPONDENT HAD NO SUCH
OBLIGATION AND THEREFORE DISMISSED THE COMPLAINT IN ITS ENTIRETY.
IN AGREEMENT WITH THE JUDGE, AND NOTING THE ABSENCE OF ANY CONTENTION
TO THE CONTRARY, THE AUTHORITY FINDS THAT THE DATA REQUESTED BY THE
UNION WAS NECESSARY AND RELEVANT IN ORDER TO ENABLE THE UNION TO
EFFECTIVELY CARRY OUT ITS STATUTORY REPRESENTATIONAL OBLIGATION IN THE
PROCESSING OF AN EMPLOYEE GRIEVANCE. SEE, E.G., BUREAU OF ALCOHOL,
TOBACCO AND FIREARMS, NATIONAL OFFICE AND WESTERN REGION, SAN FRANCISCO,
CALIFORNIA, 8 FLRA NO. 108(1982). HOWEVER, CONTRARY TO THE JUDGE'S
CONCLUSION AND IN ACCORDANCE WITH A RECENT DECISION INVOLVING THE SAME
PARTIES, THE AUTHORITY FINDS THAT THE UNION'S RIGHT TO RECEIVE SUCH DATA
AND THE RESPONDENT'S OBLIGATION TO FURNISH SAME ARE DERIVED FROM SECTION
7114(B)(4) OF THE STATUTE RATHER THAN FROM SECTION 7114(A)(1). VETERANS
ADMINISTRATION REGIONAL OFFICE, DENVER, COLORADO, 7 FLRA NO. 100(1982).
SECTION 7114 OF THE STATUTE PRESCRIBES THE REPRESENTATION RIGHTS AND
DUTIES OF THE PARTIES IN A COLLECTIVE BARGAINING RELATIONSHIP. PART OF
AN AGENCY'S STATUTORY DUTY TO NEGOTIATE IN GOOD FAITH, AS SET FORTH IN
SECTION 7114(B)(4) IS "TO FURNISH TO THE EXCLUSIVE REPRESENTATIVE . . .
UPON REQUEST AND, TO THE EXTENT NOT PROHIBITED BY LAW, DATA" AS FURTHER
DESCRIBED THEREIN. /5/ IN USING THE TERM "FURNISH," CONGRESS DID NOT
SPECIFY EITHER IN THE STATUTE OR ITS LEGISLATIVE HISTORY WHETHER AN
AGENCY MAY ASSESS A CHARGE FOR SUCH DATA REQUESTED BY AN EXCLUSIVE
REPRESENTATIVE. HOWEVER, NOTING PARTICULARLY THAT THE OBLIGATION TO
FURNISH SUCH DATA IS AN INTEGRAL PART OF AN AGENCY'S DUTY TO NEGOTIATE
IN GOOD FAITH UNDER SECTION 7114(B)(4), AS MANDATED BY CONGRESS, THE
AUTHORITY CONCLUDES THAT IT WOULD FURTHER CONGRESSIONAL INTENT TO
REQUIRE AN AGENCY TO FURNISH THE DATA, SUBJECT TO THE LIMITATIONS AND
CONDITIONS OF SECTION 7114(B)(4)(A), (B) AND (C), WITHOUT CHARGE TO THE
EXCLUSIVE REPRESENTATIVE.
SUCH CONCLUSION IS ALSO CONSISTENT WITH THE COMMON MEANING OF THE
TERM "FURNISH." IN ACCORDANCE WITH THE GENERAL RULES OF STATUTORY
CONSTRUCTION, WORDS IN THE STATUTE ARE GIVEN THEIR COMMON MEANING UNLESS
A CONTRARY LEGISLATIVE INTENT IS INDICATED. /6/ THERE IS NOTHING IN THE
LANGUAGE OF THE STATUTE OR IN THE RELEVANT LEGISLATIVE HISTORY WHICH
SUGGESTS THAT THE TERM "FURNISH" AS USED IN SECTION 7114(B)(4) SHOULD BE
GIVEN ANY MEANING OTHER THAN THAT COMMONLY ASCRIBED TO IT. IN THIS
REGARD, THE COMMON MEANING OF THE TERM "FURNISH" IS TO PROVIDE, SUPPLY
OR GIVE. /7/ THUS, IN THE CONTEXT OF SECTION 7114(B)(4), THE
AUTHORITY'S CONCLUSION THAT AN AGENCY'S OBLIGATION TO "FURNISH" THE
EXCLUSIVE REPRESENTATIVE WITH A COPY OF NECESSARY DATA UPON REQUEST
MEANS TO GIVE SUCH DATA WITHOUT COST TO THE EXCLUSIVE REPRESENTATIVE IS
CONSISTENT WITH THE LITERAL LANGUAGE OF THE STATUTE. /8/
IN ADDITION, THE FOREGOING CONCLUSION GIVES MEANING TO SECTION
7114(B)(4), WHEREAS A CONTRARY INTERPRETATION WOULD RENDER THAT SECTION
MERELY DUPLICATIVE OF RIGHTS ALREADY ESTABLISHED UNDER THE FREEDOM OF
INFORMATION ACT (FOIA). THUS, UNDER THE FOIA, LABOR ORGANIZATIONS (AS
WELL AS OTHER PERSONS) ALREADY WERE ENTITLED TO REQUEST AND RECEIVE
CERTAIN INFORMATION FROM AGENCIES UPON PAYMENT OF A FEE FOR SUCH
MATERIAL PRIOR TO ENACTMENT OF THE STATUTE. IF SECTION 7114(B)(4) OF
THE STATUTE WERE INTERPRETED TO PERMIT AGENCIES TO REQUIRE THE EXCLUSIVE
REPRESENTATIVES OF THEIR EMPLOYEES TO PAY A FEE FOR A COPY OF SUCH
MATERIAL NOTWITHSTANDING THE PARTIES' SPECIAL BARGAINING RELATIONSHIP,
SECTION 7114(B)(4) WOULD BE RENDERED ESSENTIALLY MEANINGLESS. THAT
CONGRESS COULD NOT HAVE INTENDED SUCH A RESULT, BUT RATHER TO GIVE
MEANING TO BOTH LAWS, /9/ FURTHER SUPPORTS THE AUTHORITY'S CONCLUSION
HEREIN.
ACCORDINGLY, CONTRARY TO THE JUDGE, THE AUTHORITY CONCLUDES THAT THE
RESPONDENT HEREIN VIOLATED ITS DUTY TO NEGOTIATE IN GOOD FAITH, AND
FAILED TO COMPLY WITH THE REQUIREMENTS OF SECTION 7114(B)(4), IN
VIOLATION OF SECTION 7116(A)(1), (5) AND (8) OF THE STATUTE, BY
REQUIRING THE UNION TO PAY FOR A COPY OF NECESSARY DATA REQUESTED BY THE
UNION /10/ IN ORDER TO FULFILL ITS REPRESENTATIONAL ROLE IN CONNECTION
WITH AN EMPLOYEE'S GRIEVANCE. /11/
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 THE VETERANS ADMINISTRATION REGIONAL OFFICE, DENVER,
COLORADO, SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING OR REFUSING TO PROVIDE, WITHOUT CHARGE, TO THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1557, THE EMPLOYEE'S
EXCLUSIVE REPRESENTATIVE, A COPY OF REQUESTED DATA WHICH IS NECESSARY
AND RELEVANT TO ENABLE SUCH EXCLUSIVE REPRESENTATIVE TO PERFORM ITS
REPRESENTATIONAL DUTIES IN CONNECTION WITH AN EMPLOYEE'S GRIEVANCE.
(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) REPAY TO THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1557, THE EMPLOYEE'S EXCLUSIVE REPRESENTATIVE, THE $9.45
CHARGED FOR NECESSARY AND RELEVANT DATA REQUESTED BY THE EXCLUSIVE
REPRESENTATIVE IN ORDER TO PERFORM ITS REPRESENTATIONAL DUTIES IN
CONNECTION WITH AN EMPLOYEE'S GRIEVANCE.
(B) POST AT ITS FACILITIES AT THE VETERANS ADMINISTRATION REGIONAL
OFFICE, DENVER, 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 THE DIRECTOR OF THE VETERANS
ADMINISTRATION, DENVER REGIONAL OFFICE, 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 DIRECTOR 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.
ISSUED, WASHINGTON, D.C., NOVEMBER 16, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, 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 1557, THE
EMPLOYEES' EXCLUSIVE REPRESENTATIVE, A COPY OF REQUESTED DATA WHICH IS
NECESSARY AND RELEVANT TO ENABLE SUCH EXCLUSIVE REPRESENTATIVE TO
PERFORM ITS REPRESENTATIONAL DUTIES IN CONNECTION WITH AN EMPLOYEE'S
GRIEVANCE.
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 REPAY TO THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1557, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, THE $9.45
CHARGED FOR NECESSARY AND RELEVANT DATA REQUESTED BY THE EXCLUSIVE
REPRESENTATIVE IN ORDER TO PERFORM ITS REPRESENTATIONAL DUTIES IN
CONNECTION WITH AN EMPLOYEES' GRIEVANCE.
(AGENCY OR ACTIVITY)
DATED: BY: (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF THE EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE, OR
COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
WITH THE REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION
VII, WHOSE ADDRESS IS: FEDERAL BUILDING AND U.S. CUSTOMS HOUSE, 1531
STOUT STREET, SUITE 301, DENVER, CO 80202, AND WHOSE TELEPHONE NUMBER
IS: (816) 374-2199.
-------------------- ALJ$ DECISION FOLLOWS --------------------
DOUGLAS D. DOANNE, ESQ.
FOR THE RESPONDENT
GAVIN K. LODGE, ESQ.
FOR THE GENERAL COUNSEL
BEFORE: SALVATORE J. ARRIGO
ADMINISTRATIVE LAW JUDGE
CASE NO. 7-CA-365
DECISION
STATEMENT OF THE CASE
THIS CASE AROSE UNDER THE PROVISIONS OF THE FEDERAL LABOR-MANAGEMENT
RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ. (HEREIN REFERRED
TO AS THE STATUTE) AND THE RULES AND REGULATIONS ISSUED THEREUNDER.
UPON AN UNFAIR LABOR PRACTICE CHARGE FILED BY THE AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1557 (HEREIN THE UNION) AGAINST
THE VETERANS ADMINISTRATION REGIONAL OFFICE, DENVER, COLORADO (HEREIN
THE RESPONDENT) ON JANUARY 7, 1980, THE GENERAL COUNSEL OF THE FEDERAL
LABOR RELATIONS AUTHORITY, BY THE REGIONAL DIRECTOR FOR REGION 7, ISSUED
A COMPLAINT AND NOTICE OF HEARING ON MAY 6, 1980 ALLEGING RESPONDENT
ENGAGED IN UNFAIR LABOR PRACTICE CONDUCT VIOLATIVE OF SECTIONS
7116(A)(1), (5), AND (8) OF THE STATUTE. ESSENTIALLY, THE COMPLAINT
ALLEGES RESPONDENT VIOLATED THE STATUTE BY COMPELLING THE UNION TO PAY
FOR COPIES OF DATA THE UNION REQUIRED IN THE PERFORMANCE OF ITS
REPRESENTATIONAL ROLE.
A HEARING ON THE COMPLAINT WAS CONDUCTED ON JUNE 11, 1980 AT WHICH
TIME THE GENERAL COUNSEL AND RESPONDENT WERE REPRESENTED BY COUNSEL AND
AFFORDED FULL OPPORTUNITY TO ADDUCE EVIDENCE AND CALL, EXAMINE AND
CROSS-EXAMINE WITNESSES AND ARGUE ORALLY. BRIEFS WERE FILED AND HAVE
BEEN DULY CONSIDERED.
UPON THE ENTIRE RECORD IN THIS MATTER, MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM MY EVALUATION OF THE EVIDENCE, I
MAKE THE FOLLOWING:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
AT ALL TIMES MATERIAL HEREIN THE UNION HAS BEEN THE EXCLUSIVE
COLLECTIVE BARGAINING REPRESENTATIVE OF RESPONDENT'S NONPROFESSIONAL AND
PROFESSIONAL EMPLOYEES. IN LATE 1979 UNION STEWARD ROBERT MCGURRAN WAS
ASKED BY EMPLOYEE EVELYN COLLIER TO REPRESENT HER IN PROCESSING A
GRIEVANCE AGAINST RESPONDENT. COLLIER'S GRIEVANCE CONCERNED HER FAILURE
TO BE PROMOTED TO A JOURNEYMAN ACCOUNTS RECEIVABLE ANALYST. AFTER A
VERBAL STEP 1 GRIEVANCE WAS FILED ON DECEMBER 31, 1979, MCGURRAN MET
WITH PAUL MICHAEL, RESPONDENT'S FINANCIAL MANAGER. AS PART OF HIS
INVESTIGATION OF COLLIER'S GRIEVANCE, MCGURRAN ASKED TO SEE ANY
COUNSELLING RECORDS RESPONDENT HAD IN ITS POSSESSION AND WAS SHOWN A
SUBSTANTIAL FILE CONTAINING, WHAT APPEARED TO MCGURRAN, "SEVERAL HUNDRED
PAPERS." IN REVIEWING THIS FILE WITH MCGURRAN, COLLIER NOTICED MANY
PAGES WHICH SHE CLAIMED SHE HAD NEVER SEEN PREVIOUSLY. MCGURRAN DECIDED
THAT TO PURSUE THE MATTER FURTHER AND DETERMINE THE SOUNDNESS OF
COLLIER'S GRIEVANCE HE WOULD NEED COPIES OF THE DOCUMENTS IN THE FILE.
ACCORDINGLY, ON DECEMBER 13, 1979 MCGURRAN SUBMITTED A WRITTEN REQUEST
TO MICHAEL FOR " . . . A COPY OF EACH DOCUMENT (ANY AND ALL WRITTEN
RECORDS) CONTAINED IN THE FILE YOU ARE MAINTAINING ON MS. COLLIER AND IS
THE SUBJECT OF A GRIEVANCE . . . " THE REQUEST INDICATED IT WAS BEING
FILED UNDER "TITLE VII, PL 95-454(5)(B)(4)" AND CONTAINED A NOTATION,
SIGNED BY COLLIER, STATING "MR. MCGURRAN IS MY REPRESENTATIVE IN THE
ABOVE GRIEVANCE. I DO NOT WISH TO PURCHASE A COPY OF THE ILLEGAL-FILE.
I WOULD LIKE IT TO BE PROVIDED TO MY REPRESENTATIVE UNDER THE LAW AS
STATED ABOVE."
FINANCE MANAGER MICHAEL REPLIED TO MCGURRAN BY LETTER DATED DECEMBER
13, 1979. THE FIRST SENTENCE OF THE FORM LETTER STATED THAT THE
INFORMATION WAS BEING "FURNISHED IN RESPONSE TO YOUR RECENT REQUEST
UNDER THE PRIVACY ACT." THE LETTER ALSO INDICATED THAT THE COPIES
REQUESTED WOULD ONLY BE RELEASED UPON PAYMENT OF A CHARGE OF $9.45. ON
DECEMBER 15, 1979 THE UNION'S TREASURER SUBMITTED $9.45 TO RESPONDENT
AND, AT THE REQUEST OF THE UNION, THE RECEIPT INDICATED THE PAYMENT WAS
"FOR COPIES OF GRIEVANCE FILED UNDER PL-454, SECTION 7114." THEREUPON,
COPIES OF THE REQUESTED DOCUMENTS, CONSISTING OF 189 SEPARATE PAGES,
WERE SUPPLIED TO THE UNION.
IN JANUARY 1980 THE COLLIER GRIEVANCE WAS RESOLVED.
THE GENERAL COUNSEL CONTENDS THAT UNDER EXISTING FEDERAL SECTOR LAW
AND UNDER THE PROVISIONS OF SECTION 7114(B)(4) OF THE STATUTE RESPONDENT
WAS OBLIGATED TO PROVIDE THE INFORMATION REQUESTED FREE OF CHARGE AND,
IN ANY EVENT, CHARGING THE UNION FOR THE COLLIER DOCUMENTS CONSTITUTED A
UNILATERAL CHANGE FROM PAST PRACTICE.
RESPONDENT TAKES THE POSITION THAT: THE FLRA IS WITHOUT JURISDICTION
TO CONSIDER THIS MATTER SINCE THE CASE INVOLVES APPLICATION OF THE
PRIVACY ACT; UNDER THE TERMS OF THE NEGOTIATED AGREEMENT BETWEEN THE
PARTIES THE UNION WAS REQUIRED TO PAY FOR COPIES OF THE DOCUMENTS SOUGHT
HEREIN; SECTION 7114(B)(4) OF THE STATUTE DOES NOT REQUIRE THE
RESPONDENT TO PROVIDE THE UNION COPIES OF THE DOCUMENTS IN ISSUE WITHOUT
CHARGE; AND THE PREPONDERANCE OF THE EVIDENCE DOES NOT DISCLOSE THE
EXISTENCE OF A PAST PRACTICE OF PROVIDING THE UNION COPIES OF DOCUMENTS
WITHOUT CHARGE.
IT HAS BEEN LONG ESTABLISHED UNDER EXECUTIVE ORDER 11491, AS AMENDED
(THE EXECUTIVE ORDER), THE PREDECESSOR TO THE STATUTE IN THE REGULATION
OF LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SECTOR, THAT A UNION IS
ENTITLED TO ACCESS TO INFORMATION NECESSARY AND RELEVANT TO THE
EFFECTIVE PROCESSING OF A GRIEVANCE. /12/ THAT RIGHT EMANATED FROM
SECTION 10(E) OF THE EXECUTIVE ORDER UNDER WHICH A LABOR ORGANIZATION
WAS GIVEN THE RESPONSIBILITY FOR REPRESENTING THE INTERESTS OF ALL
EMPLOYEES IN THE COLLECTIVE BARGAINING UNIT. /13/ IN NUMEROUS CASES
UNDER THE EXECUTIVE ORDER EMPLOYERS WERE REQUIRED TO MAKE INFORMATION
AVAILABLE TO THE EXCLUSIVE REPRESENTATIVES IN CIRCUMSTANCES SIMILAR TO
THAT HEREIN. /14/ SUCH DATA WAS FOUND TO BE NECESSARY AND RELEVANT TO
THE UNION FULFILLING ITS LEGITIMATE REPRESENTATIVE ROLE. /15/
THE LANGUAGE OF SECTION 7114(A)(1) OF THE STATUTE IS VIRTUALLY
IDENTICAL TO SECTION 10(E) OF THE EXECUTIVE ORDER. /16/ THEREFORE, IT
IS REASONABLE TO ASSUME THAT RIGHTS WHICH A UNION POSSESSED UNDER
SECTION 10(E) OF THE EXECUTIVE ORDER WERE RETAINED UNDER SECTION
7114(A)(1) OF THE STATUTE. FURTHER, SECTION 7135 OF THE STATUTE
PROVIDES THAT "POLICIES, REGULATIONS, AND PROCEDURES ESTABLISHED UNDER
AND DECISIONS ISSUED UNDER . . . (THE EXECUTIVE ORDER) . . . SHALL
REMAIN IN FULL FORCE AND EFFECT UNTIL REVISED OR REVOKED BY THE
PRESIDENT, OR UNLESS SUPERSEDED BY SPECIFIC PROVISIONS OF (THE STATUTE)
OR BY REGULATIONS OR DECISIONS ISSUED PURSUANT TO (THE STATUTE)."
ACCORDINGLY, SINCE IN MY VIEW THE DATA IN COLLIER'S FILE MEETS THE
NECESSARY AND RELEVANT CRITERIA ESTABLISHED UNDER THE ORDER, I CONCLUDE
THAT UNDER SECTION 7114(A)(1) OF THE STATUTE THE UNION WAS ENTITLED TO
ACCESS TO THE DOCUMENTS CONTAINED IN THE FILE. /17/
AS TO RESPONDENT'S JURISDICTION ARGUMENT, I REJECT THE CONTENTION
THAT THE FEDERAL LABOR RELATIONS AUTHORITY IS WITHOUT JURISDICTION TO
CONSIDER THIS MATTER SINCE PRIVACY ACT CONSIDERATIONS MAY ALSO BE
PRESENT. THE DEMAND FOR DOCUMENTS IN THIS CASE WAS CLEARLY MADE UNDER
THE STATUTE AND CLAIMS SIMILAR TO THOSE RESPONDENT MAKES HEREIN HAVE
BEEN PREVIOUSLY REJECTED UNDER THE EXECUTIVE ORDER AND THERE IS NOTHING
IN THE STATUTE WHICH SUGGESTS THAT A DIFFERENT APPROACH SHOULD NOW BE
TAKEN. /18/
SIMILARLY, I REJECT RESPONDENT'S CONTENTION THAT BY THE PARTIES'
NEGOTIATED AGREEMENT THE UNION HAD ACQUIESCED IN RESPONDENT'S CHARGING A
FEE FOR COPIES OF THE DOCUMENTS. RESPONDENT POINTS TO THE FOLLOWING
CONTRACTUAL LANGUAGE TO SUPPORT ITS POSITION:
"IN THE ADMINISTRATION OF ALL MATTERS COVERED BY THE AGREEMENT,
OFFICIALS AND EMPLOYEES ARE
GOVERNED BY EXISTING OR FUTURE LAWS AND THE REGULATIONS OF
APPROPRIATE AUTHORITIES, INCLUDING
POLICIES SET FORTH IN THE FEDERAL PERSONNEL MANUAL; BY PUBLISHED VA
POLICIES AND REGULATIONS
IN EXISTENCE AT THE TIME THE AGREEMENT WAS APPROVED; AND, BY
SUBSEQUENTLY PUBLISHED VA
POLICIES AND REGULATIONS REQUIRED BY LAW OR BY THE REGULATIONS OF
APPROPRIATE AUTHORITIES, OR
AUTHORIZED BY THE TERM OF A CONTROLLING AGREEMENT AT A HIGHER AGENCY
LEVEL."
RESPONDENT ARGUES THAT SINCE ITS REGULATIONS REQUIRE CHARGING A FEE
FOR THE PRODUCTION OF DOCUMENTS UNDER FREEDOM OF INFORMATION ACT (FOIA)
GUIDELINES, 5 U.S.C. 552(A), THEN, BY THE ABOVE CONTRACTUAL LANGUAGE
THE UNION BOUND ITSELF TO FOIA PROCEDURES. THUS, ESSENTIALLY RESPONDENT
URGES THAT THE UNION HAS WAIVED ANY STATUTORY RIGHT TO INFORMATION AND
COMMITTED ITSELF TO FOIA PROCEDURES TO OBTAIN INFORMATION FROM
RESPONDENT.
THE ARGUMENT IS UNPERSUASIVE. IT IS WELL SETTLED THAT A WAIVER OF A
RIGHT GRANTED BY THE EXECUTIVE ORDER OR THE STATUTE WILL NOT BE LIGHTLY
INFERRED AND MUST BE CLEAR AND UNMISTAKABLE. /19/ IN MY OPINION THE
CONTRACTUAL LANGUAGE AND FACTS HEREIN FALL FAR SHORT OF CONSTITUTING
CLEAR AND UNMISTAKABLE CONDUCT SUFFICIENT TO SUPPORT A WAIVER AND
OBLIGATE THE UNION TO OBTAIN ONLY THROUGH FOIA PROCEDURES DOCUMENTS TO
WHICH IT WAS ENTITLED TO RECEIVE UNDER THE STATUTE.
THE QUESTION REMAINS WHETHER THE UNION WAS ENTITLED UNDER THE STATUTE
TO RECEIVE THE DOCUMENTS FREE OF CHARGE. /20/ AT THE HEARING COUNSEL
FOR THE GENERAL COUNSEL ATTEMPTED TO ESTABLISH THAT A PAST PRACTICE
EXISTED WHEREBY RESPONDENT PROVIDED THE UNION COPIES OF DOCUMENTS FREE
OF CHARGE WHEN THE NUMBER OF COPIES INVOLVED WAS SUBSTANTIAL. UNION
STEWARD MCGURRAN TESTIFIED THAT, WHILE IN THE PAST THE UNION WAS
SOMETIMES CHARGED WHEN REQUESTING COPIES OF DOCUMENTS, ON THREE
OCCASIONS WHEN LARGE NUMBERS OF COPIES WERE SOUGHT RESPONDENT SUPPLIED
THE COPIES WITHOUT CHARGE. HOWEVER, RESPONDENT'S WITNESSES CREDIBLY
TESTIFIED THAT WHETHER THE UNION WAS CHARGED FOR COPIES OF DOCUMENTS WAS
NOT DETERMINED BY THE NUMBER OF DOCUMENTS SOUGHT BUT, RATHER, BY
APPLICATION OF ITS INTERNAL FOIA STANDARDS TO THE SPECIFIC REQUEST UNDER
CONSIDERATION. THUS, WHILE THE UNION, AND OTHERS, WERE CUSTOMARILY
CHARGED FOR COPIES OF DOCUMENTS, EXCEPTIONS WERE REGULARLY MADE IN THIS
PRACTICE UPON A DETERMINATION BEING MADE BY RESPONDENT THAT IT WOULD BE
IN THE PUBLIC INTEREST TO PROVIDE FREE COPIES, OR IT WAS A NORMAL
PRACTICE EXPECTED OF THE AGENCY, OR THE DOCUMENTS WERE PURELY
INFORMATIONAL IN NATURE, OR IT WAS IN THE BEST INTEREST OF RESPONDENT TO
PROVIDE THE COPIES WITHOUT CHARGE. RESPONDENT'S EXPLANATION WAS NOT
CHALLENGED.
IN THE CIRCUMSTANCES HEREIN I FIND AND CONCLUDE THAT RESPONDENT'S
EXPLANATION TO BE REASONABLE AND THE RECORD EVIDENCE INSUFFICIENT TO
ESTABLISH A PAST PRACTICE OF RESPONDENT SUPPLYING THE UNION COPIES OF
DOCUMENTS FREE OF CHARGE. /21/
COUNSEL FOR THE GENERAL COUNSEL AVERS THAT THE PROVISIONS OF SECTION
7114(B)(4) OF THE STATUTE REQUIRE RESPONDENT TO SUPPLY COPIES OF THE
REQUESTED DOCUMENTS TO THE UNION FREE OF CHARGE. /22/ ASSUMING ARGUENDO
THAT SECTION 7114(B)(4) IS APPLICABLE TO SITUATIONS SUCH AS HEREIN, I
FIND THE SPECIFIC LANGUAGE OF SECTION 7114(B)(4) FAILS TO SUPPORT
COUNSEL FOR THE GENERAL COUNSEL'S POSITION. SECTION 7114(B)(4) MERELY
REQUIRES THAT AN AGENCY "FURNISH" DATA AND IS SILENT AS TO THE
CONDITIONS UNDER WHICH THE INFORMATION IS TO BE FURNISHED, INCLUDING
WHETHER A CHARGE MAY BE EXACTED FOR THE SERVICE PROVIDED. THE
LEGISLATIVE HISTORY OF THE STATUTE REGARDING THIS SECTION DOES NOT
ADDRESS THE MATTER OF A CHARGE FOR DATA. NO COUNTERPART TO THIS SECTION
EXISTED IN THE EXECUTIVE ORDER AND WHILE THE QUESTION OF A UNION'S RIGHT
FOR INFORMATION FREQUENTLY AROSE, THE QUESTION OF REQUIRING A FEE FOR
THE SERVICE OF PROVIDING SUCH INFORMATION DOES NOT APPEAR TO HAVE BEEN
PUT IN ISSUE OR RESOLVED UNDER THE ORDER. HOWEVER, THIS QUESTION HAS
BEEN THE SUBJECT OF NUMEROUS CASES BROUGHT UNDER THE NATIONAL LABOR
RELATIONS ACT. WHILE DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(NLRB OR THE BOARD) ARE NOT CONTROLLING AS TO SIMILAR MATTERS ARISING
UNDER THE STATUTE, IT IS FREQUENTLY FRUITFUL TO EXPLORE NLRB TREATMENT
OF THESE ISSUES.
A TOUCHSTONE IN NLRB DECISIONS DEALING WITH THE OBLIGATION OF AN
EMPLOYER TO FURNISH "NECESSARY AND RELEVANT" INFORMATION TO AN EXCLUSIVE
REPRESENTATIVE IS THE CINCINNATI STEEL CASTINGS COMPANY, 86 NLRB
592(1949). IN THAT CASE THE BOARD HELD THAT AN EMPLOYER WAS NOT
OBLIGATED TO FURNISH SUCH INFORMATION IN THE EXACT FORM REQUESTED BY THE
REPRESENTATIVE BUT IT WAS SUFFICIENT IF THE INFORMATION WAS MADE
AVAILABLE IN A MANNER NOT SO BURDENSOME OR TIME CONSUMING AS TO IMPEDE
THE BARGAINING PROCESS. IN ANOTHER CASE, LASKO METAL PRODUCTS, INC.,
148 NLRB 976(1963), THE BOARD HELD THAT "(G)OOD FAITH BARGAINING
REQUIRES ONLY THAT SUCH INFORMATION BE MADE AVAILABLE AT REASONABLE TIME
AND IN A REASONABLE PLACE AND WITH AN OPPORTUNITY FOR THE UNION TO MAKE
A COPY OF THE INFORMATION IF IT SO DESIRES."
FREQUENTLY THE BOARD CASES TREATING THIS SUBJECT INVOLVED NUMEROUS
DOCUMENTS OR SUBSTANTIAL COSTS. IN THOSE CASES, WHERE COPIES OF
DOCUMENTS WERE FURNISHED TO THE REPRESENTATIVE FOR ITS CONVENIENCE, THE
BOARD CONCLUDED THAT AN EMPLOYER WAS NOT OBLIGATED TO BEAR THE BURDEN OF
THE COST INVOLVED IN DUPLICATING THE MATERIAL. UNITED AIRCRAFT CORP. ET
AL., 192 NLRB 382 AT 389, 390(1971), AFF'D IN RELEVANT PART, 534 F.2D
422 (2D CIR. 1975); FOOD EMPLOYER COUNCIL, INC., 197 NLRB 651(1972);
AND PACIFIC TELEPHONE AND TELEGRAPH COMPANY, 246 NLRB NO. 53(1979).
FURTHER, THE BOARD HELD IN ONE CASE WHERE THE VOLUME OF DOCUMENTS IN
QUESTION WAS SLIGHT THAT THE EMPLOYER WAS STILL NOT OBLIGATED TO PROVIDE
COPIES BUT SIMPLY MAKE AVAILABLE THE DOCUMENTS TO THE UNION FOR
INSPECTION. ABERCROMBIE & FITCH CO., 206 NLRB 464(1973). ACCORDINGLY,
IT WOULD APPEAR THAT UNDER BOARD LAW, REGARDLESS OF THE VOLUME OF WORK,
SUM OF MONEY, OR TIME INVOLVED IN DUPLICATING THE MATERIAL, ABSENT SOME
EVIDENCE OF BAD FAITH AN EMPLOYER IS NOT OBLIGATED TO FURNISH, FREE OF
COST, COPIES OF "NECESSARY AND RELEVANT" DOCUMENTS TO A REPRESENTATIVE.
IN THE CASE HEREIN THE UNION SOUGHT AND WAS GIVEN ACCESS TO COLLIER'S
FILE WHICH CONSISTED OF APPROXIMATELY 190 PAGES. THERE IS NO EVIDENCE
TO INDICATE THAT THE UNION WAS PREVENTED FROM TAKING NOTES OR IN ANY WAY
OBSTRUCTED OR LIMITED IN REVIEWING COLLIER'S FILE AT THE FACILITY.
HOWEVER, THE UNION WISHED TO OBTAIN COPIES OF THE DOCUMENTS FOR ITS OWN
CONVENIENCE IN REVIEWING THE CONTENTS OF THE FILE. RESPONDENT WAS
WILLING TO PROVIDE THE UNION WITH COPIES OF THE DOCUMENTS BUT INSISTED
UPON A FEE OF FIVE CENTS A PAGE. THERE IS NO CONTENTION THAT THE FEE
CHARGED WAS UNREASONABLE NOR WAS THERE A SHOWING THAT THE FEE WAS
DISCRIMINATORILY LEVIED AGAINST THE UNION. FURTHER, THE EVIDENCE IS
INSUFFICIENT TO SHOW THE EXISTENCE OF A PAST PRACTICE OF NOT CHARGING
THE UNION FOR COPIES OF SUCH DOCUMENTS AND THERE IS NO OTHER ALLEGATION
OR EVIDENCE OF BAD FAITH ON THE PART OF RESPONDENT IN THIS MATTER.
ACCORDINGLY, IN ALL THE CIRCUMSTANCES AND AS I AM UNAWARE OF ANY
PERSUASIVE ARGUMENT WHICH WOULD SUPPORT THE EXISTENCE OF AN OBLIGATION
UNDER THE STATUTE, I CONCLUDE THAT UNDER THE STATUTE RESPONDENT WAS NOT
OBLIGATED TO PROVIDE THE UNION COPIES OF THE DOCUMENTS IN QUESTION
WITHOUT CHARGE.
BASED UPON THE FOREGOING FINDINGS AND CONCLUSIONS I RECOMMEND THE
AUTHORITY ISSUE AN ORDER DISMISSING THE COMPLAINT IN ITS ENTIRETY.
SALVATORE J. ARRIGO
ADMINISTRATIVE LAW JUDGE
DATED: JANUARY 23, 1981
WASHINGTON, D.C.
--------------- FOOTNOTES$ ---------------
/1/ IN ITS OPPOSITION, THE RESPONDENT REQUESTS THAT THE GENERAL
COUNSEL'S TIMELY FILED BRIEF IN SUPPORT OF EXCEPTIONS "SHOULD NOT BE
ENTERTAINED BY THE AUTHORITY" BECAUSE "NO EXCEPTIONS HAVE BEEN FILED IN
THIS MATTER." HOWEVER, THE RECORD INDICATES THAT THE GENERAL COUNSEL DID
FILE SEPARATE EXCEPTIONS PURSUANT TO SECTION 2423.26(C) OF THE
AUTHORITY'S RULES AND REGULATIONS IN ADDITION TO THE BRIEF IN SUPPORT
THEREOF. WHILE IT APPEARS FROM THE RESPONDENT'S CONTENTION THAT SUCH
EXCEPTIONS INADVERTENTLY WERE NOT SERVED UPON THE RESPONDENT, THE
AUTHORITY FINDS THAT THE SUPPORTING BRIEF FULLY IDENTIFIES AND
DELINEATES THE REASONS FOR THE GENERAL COUNSEL'S EXCEPTIONS.
ACCORDINGLY, IN THE ABSENCE OF A SHOWING OR EVEN AN ASSERTION THAT THE
RESPONDENT WAS PREJUDICED IN ANY MANNER HEREIN, THE AUTHORITY CONCLUDES
THAT THE GENERAL COUNSEL'S EXCEPTIONS ARE PROPERLY BEFORE THE AUTHORITY
FOR CONSIDERATION.
/2/ 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.
/3/ SECTION 7114(A)(1) PROVIDES:
SEC. 7114. REPRESENTATION RIGHTS AND DUTIES
(A)(1) A LABOR ORGANIZATION WHICH HAS BEEN ACCORDED EXCLUSIVE
RECOGNITION IS THE EXCLUSIVE
REPRESENTATIVE OF THE EMPLOYEES IN THE UNIT IT REPRESENTS AND IS
ENTITLED TO ACT FOR, AND
NEGOTIATE COLLECTIVE BARGAINING AGREEMENTS COVERING, ALL EMPLOYEES IN
THE UNIT. AN EXCLUSIVE
REPRESENTATIVE IS RESPONSIBLE FOR REPRESENTING THE INTERESTS OF ALL
EMPLOYEES IN THE UNIT IT
REPRESENTS WITHOUT DISCRIMINATION AND WITHOUT REGARD TO LABOR
ORGANIZATION MEMBERSHIP.
/4/ SECTION 7114(B)(4) PROVIDES:
(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(.)
/5/ THERE IS NO CONTENTION THAT THE DATA REQUESTED HEREIN IS
"PROHIBITED BY LAW" FROM BEING FURNISHED (SEE, E.G., BUREAU OF ALCOHOL,
TOBACCO AND FIREARMS, NATIONAL OFFICE AND WESTERN REGION, SAN FRANCISCO,
CALIFORNIA, 8 FLRA NO. 108(1982)) OR THAT THE DATA REQUESTED DOES NOT
OTHERWISE MEET THE CRITERIA OF SECTION 7114(B)(4).
/6/ AS THE U.S. COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
RECENTLY NOTED IN AFFIRMING THE AUTHORITY'S RELIANCE UPON THE PLAIN
MEANING OF THE WORD "DIRECT" IN CONSTRUING A STATUTORY PHRASE IN THE
ABSENCE OF PERTINENT LEGISLATIVE HISTORY OR CONTRADICTORY STATUTORY
LANGUAGE, NATIONAL TREASURY EMPLOYEES UNION V. FEDERAL LABOR RELATIONS
AUTHORITY, NO. 80-1895 (D.C. CIR. OCT. 12, 1982), AT N. 80:
IT GOES ALMOST WITHOUT SAYING THAT THIS IS AN ESTABLISHED AND
SATISFACTORY TECHNIQUE OF
STATUTORY CONSTRUCTION. (CITATIONS OMITTED.)
SEE ALSO NATIONAL TREASURY EMPLOYEES UNION AND U.S. CUSTOMS SERVICE,
REGION VIII, SAN FRANCISCO, CALIFORNIA, 2 FLRA 254(1979).
/7/ SEE, E.G., WEBSTER'S NEW WORLD DICTIONARY OF THE AMERICAN
LANGUAGE (1972) WHICH DEFINES "FURNISH" IN PERTINENT PART AS FOLLOWS:
(T)O SUPPLY, PROVIDE, OR EQUIP WITH WHATEVER IS NECESSARY OR USEFUL;
. . . TO
SUPPLY; PROVIDE; GIVE (TO FURNISH INFORMATION).
OF COURSE, THE DEFINITION OF "GIVE" IS "TO TURN OVER THE POSSESSION
OR CONTROL OF TO SOMEONE WITHOUT COST OR EXCHANGE; MAKE A GIFT OF." ID.
/8/ THE JUDGE'S DISCUSSION OF PRIVATE SECTOR CASES IN REACHING A
CONTRARY CONCLUSION IS DEEMED INAPPOSITE, NOTING PARTICULARLY THE
ABSENCE OF ANY PROVISION SIMILAR TO SECTION 7114(B)(4) IN THE LABOR
MANAGEMENT RELATIONS ACT (LMRA) AND THE DIFFERENCES BETWEEN FEDERAL AND
PRIVATE SECTOR LABOR MANAGEMENT RELATIONS RECOGNIZED BY CONGRESS. SEE
SECTION 7101(B) OF THE STATUTE.
/9/ SEE, E.G., NATIONAL TREASURY EMPLOYEES UNION ET AL. V UNITED
STATES CUSTOMS SERVICE, ET AL., NO. 79-1208 (D.C. D.C. FEB. 18, 1982),
IN WHICH THE U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA DISCUSSED
THE RELATIONSHIP BETWEEN SECTION 7114(B)(4) OF THE STATUTE AND THE FOIA.
/10/ IN SO CONCLUDING, THE AUTHORITY EMPHASIZES THAT THE RESPONDENT'S
DUTY IS TO FURNISH A COPY OF THE NECESSARY DATA REQUESTED RATHER THAN
MULTIPLE COPIES OF THE SAME DATA.
/11/ INASMUCH AS IT IS NOT AN ISSUE IN THE INSTANT CASE, THE
AUTHORITY DOES NOT REACH THE QUESTION WHETHER AN AGENCY MAY BE REQUIRED
TO FURNISH REQUESTED DATA TO AN EXCLUSIVE REPRESENTATIVE WHICH IS
AVAILABLE FROM ANOTHER SOURCE.
/12/ SEE DEPARTMENT OF DEFENSE, STATE OF NEW JERSEY, 3 FLRC 285, FLRC
NO. 73A-59(1975); 5 A/SLMR 499, A/SLMR NO. 539(1975); 3 A/SLMR 591,
A/SLMR NO. 323(1973).
/13/ SECTION 10(E) OF THE ORDER PROVIDED, IN RELEVANT PART:
"WHEN A LABOR ORGANIZATION HAS BEEN ACCORDED EXCLUSIVE RECOGNITION,
IT IS THE EXCLUSIVE
REPRESENTATIVE OF EMPLOYEES IN THE UNIT AND IS ENTITLED TO ACT FOR
AND NEGOTIATE AGREEMENTS
COVERING ALL EMPLOYEES IN THE UNIT. IT IS RESPONSIBLE FOR
REPRESENTING THE INTERESTS OF ALL
EMPLOYEES IN THE UNIT WITHOUT DISCRIMINATION AND WITHOUT REGARD TO
LABOR ORGANIZATION
MEMBERSHIP . . . "
/14/ U.S. CUSTOMS SERVICE AND HOUSTON REGION, U.S. CUSTOMS SERVICE, 8
A/SLMR 1140, A/SLMR NO. 1135(1978); DEPARTMENT OF HEALTH EDUCATION AND
WELFARE, ETC., 4 A/SLMR 466, A/SLMR NO. 411(1974).
/15/ ID.
/16/ SECTION 7114(A)(1) OF THE STATUTE PROVIDES:
"A LABOR ORGANIZATION WHICH HAS BEEN ACCORDED EXCLUSIVE RECOGNITION
IS THE EXCLUSIVE
REPRESENTATIVE OF THE EMPLOYEES IN THE UNIT IT REPRESENTS AND IS
ENTITLED TO ACT FOR, AND
NEGOTIATE COLLECTIVE BARGAINING AGREEMENTS COVERING, ALL EMPLOYEES IN
THE UNIT. AN EXCLUSIVE
REPRESENTATIVE IS RESPONSIBLE FOR REPRESENTING THE INTERESTS OF ALL
EMPLOYEES IN THE UNIT IT
REPRESENTS WITHOUT DISCRIMINATION AND WITHOUT REGARD TO LABOR
ORGANIZATION MEMBERSHIP."
/17/ SEE DEPARTMENT OF THE NAVY, PORTSMOUTH NAVAL SHIPYARD, 4 FLRA
NO. 82(1980).
/18/ U.S. CUSTOMS SERVICE, SUPRA, PETITION FOR REVIEW DENIED, 1 FLRA
NO. 66(1979); DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, REGION VIII,
8 A/SLMR NO. 949, A/SLMR NO. 1109(1978); AND INTERNAL REVENUE SERVICE,
CHICAGO DISTRICT OFFICE, 8 A/SLMR 309, A/SLMR NO. 1004(1978).
/19/ SEE DEPARTMENT OF THE NAVY, PORTSMOUTH NAVAL SHIPYARD, 4 FLRA
NO. 82(1980); OKLAHOMA CITY AIR LOGISTICS CENTER, TINKER AIR FORCE
BASE, OKLAHOMA, 3 FLRA NO. 82(1980); AND INTERNAL REVENUE SERVICE,
JACKSONVILLE, FLORIDA, 1 FLRA NO. 35(1979) AND CASES CITED THEREIN.
/20/ THE GENERAL COUNSEL DOES NOT CONTEND THE AMOUNT CHARGED WAS
UNREASONABLE OR DISPROPORTIONATE TO THE ACTUAL COST OF DUPLICATION.
/21/ RESPONDENT PLACED IN EVIDENCE AN ARIBTRATOR'S DECISION OF
DECEMBER 6, 1978 WHICH HELD THAT, UNDER THE FOIA, RESPONDENT HAD THE
RIGHT TO CHARGE THE UNION FOR COPIES OF DOCUMENTS AND NO BINDING PAST
PRACTICE OF NOT CHANGING EXISTED. HOWEVER, I HAVE NOT RELIED UPON THE
ARBITRATOR'S FINDINGS OR CONCLUSION IN REACHING MY FINDINGS AND
CONCLUSIONS HEREIN.
/22/ SECTION 7114(B)(4) OF THE STATUTE PROVIDES:
"(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 . . . "