[ v14 p772 ]
14:0772(105)CA
The decision of the Authority follows:
14 FLRA No. 105
MARINE CORPS LOGISTICS BASE
BARSTOW, CALIFORNIA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1482, AFL-CIO
Charging Party
Case No. 8-CA-1263
DECISION AND ORDER
The Administrative Law Judge issued the attached 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.
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 recommendation that the complaint be
dismissed.
In the course of a continuing dispute between the parties with
respect to random gate searches which are periodically conducted on
vehicles entering and leaving Respondent's facility, the American
Federation of Government Employees, Local 1482, AFL-CIO (the Union), on
May 27, 1981, requested in writing that the Respondent furnish it a copy
of a document, the Commanding General's directive to the Provost
Marshall's Office dated April 28, 1981. This request, as well as a
subsequent request for the directive made by the Union on June 8, was
rejected by the Respondent, who alleged it was an "intra-management"
communication.
The Judge found, and the Authority agrees, that the Union requested
the Commanding General's directive because it believed the document
contained information pertaining to entitlement to a Union
representative and the time allowed for an employee to obtain a steward
upon being stopped for a random gate search. The evidence further
established that such information was not contained in the document.
Therefore, in agreement with the Judge, the Authority finds that the
requested document was not relevant and necessary within the meaning of
section 7114(b)(4) of the Statute. /1/
Accordingly, the Respondent did not violate the Statute when it
refused to furnish the Union with the Commanding General's directive to
the Provost Marshall's Office dated April 28, 1981. See Director of
Administration, Headquarters, U.S. Air Force, 6 FLRA 110 (1981).
ORDER
IT IS ORDERED that the complaint in Case No. 8-CA-1263 be, and it
hereby is, dismissed.
Issued, Washington, D.C., May 30, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 8-CA-1263
Joseph Swerdzewski, Esq.
For the General Counsel
Richard A. Schultz, 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, Chapter 71 of Title 5 of the U.S. Code, 5
U.S.C.section 7101, et seq.
Upon an unfair labor practice charge filed by the American Federation
of Government Employees, Local 1482, AFL-CIO (herein referred to as the
Union), on August 24, 1981 against the Marine Corps Logistics Base,
Barstow, California (herein referred to as Respondent), the General
Counsel of the Authority, by the Regional Director for Region 8, issued
a Complaint and Notice of Hearing on October 19, 1981 alleging that
since on or about May 27, 1981, Respondent violated section 7116(a)(1),
(5), and (8) of the Statute by failing to comply with section 7114(b)(4)
in that it did not supply certain information which was reasonably
available and necessary to full and proper discussion, understanding,
and negotiation of subjects within the scope of collective bargaining.
The Complaint also alleged that the refusal to supply such information
constituted a failure to bargain in good faith. Respondent's Answer
denied the commission of any unfair labor practices.
A hearing on the Complaint was conducted on January 14, 1982 in
Barstow, California at which time all parties were represented and
afforded full opportunity to adduce evidence, call, examine and
cross-examine witnesses, and argue orally. Briefs were filed by
Respondent and Counsel for the General Counsel.
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, conclusions of law, and
recommendation:
Findings of Fact
Pursuant to the Internal Security Act of 1950, which is the basic law
involving internal security on military bases, random gate searches at
the Base are periodically conducted on vehicles entering and leaving the
Base. According to Major William C. Pedrick, the Provost Marshall at
the Base approximately 18 to 24 such random searches have been conducted
since his tenure began at the Base in March 1981, to the date of the
hearing. The random searches involved both civilian and military
employees.
The Vehicle Search Program, as it is formally called, is a security
method used to prevent the introduction of narcotics, control
substances, weapons, and to prevent the theft of government property
from the Base. Each random gate search is conducted pursuant to a
written order from the Base Commanding Officer to the Provost Marshall.
That order states the specific date, time, and location of each search.
Each employee of the Base who desires to obtain driving and parking
privileges on the Base is required on a Form 5560 to state that he or
she "will submit to a search of my vehicle as may be ordered by
competent authority." Also, signs containing relevant portions of the
Internal Security Act of 1950 are posted on the facility.
Since random gate searches apparently escalated beginning around
February 1981, the Union assigned second vice-president and steward Dale
Boyce the primary responsibility for representing employees on actions
taken as a result of the gate searches. A substantial number of
grievances were filed concerning gate searches conducted in February
through April 1981. At least one of those grievances involving employee
Trujillio was subsequently scheduled for arbitration. Those grievances
basically involved employee reprimands resulting from discovery of
certain proscribed objects or from an employee's refusal to submit to a
search. In addition, several unfair labor practices were filed
involving these searches.
Sometime around May 26, 1981, Steward Boyce met with Major Pedrick
for the purpose of discussing the loss of the vehicle sticker at a gate
search of employee Carey. The incident with Carey occurred much earlier
and apparently the 15-day period for filing a grievance under the
collective bargaining agreement had expired. However, Carey
subsequently filed an unfair labor practice charge concerning the
incident which resulted in his sticker loss. Loss of sticker results in
an employee losing his driving and parking privileges at the Base.
Apparently Carey's conduct was rather severe, as Pedrick testified that
only two stickers had been removed during the gate searches.
During the meeting, Pedrick handed Boyce a letter dated April 30,
1981, which stated why Carey's sticker was scrapped. The letter
indicated that the authority for suspending driving privileges was
contained in "CG's directive to PMO of April 28, 1981."
According to Boyce, he then asked Pedrick what was contained in CG's
directive to PMO of April 28, 1981. Pedrick related in an offhand way
what was contained in the document. Pedrick then apparently proceeded
to read from the document, but according to Boyce read so fast that
Boyce could not write all that he had read. After Pedrick read the
document Boyce asked for a copy. Pedrick responded that he did not know
if he could give the document to Boyce and that Boyce should go through
proper channels. Boyce also recalls that Pedrick said, in response to a
question of what would happen if an employee would be given 6 minutes to
get a union steward and, at that time, if he did not have a steward the
employee would either have to submit to a gate search or lose the
sticker. Boyce states that he was curious where Pedrick got the
authority to do this. Clearly the authority for the search was
contained in the April 28, 1981 directive.
Boyce states that at that time he was handling cases pertaining to
employee grievances and was trying to enforce Article 14 of the
collective bargaining agreement concerning parking at the Base. /2/
Although Boyce testified that several other matters were involved, the
parties were dealing with Article 14, at the time. Interestingly, when
Boyce was shown a copy of a February 12, 1981 authorization which in
camera review established follows the identical format and procedures
contained in the May 27, 1981 request for information, he stated that it
did "not look like what Major Pedrick quoted to me." Thus, he could
establish no relationship between this almost identical document and the
requested information. On cross-examination Boyce testified that the
document he was requesting contained guidelines as to "what would
happen" if an employee requested a steward.
Major Pedrick denies that he read Boyce anything from the April 28,
1981, directive, but states that the two talked in general terms as to
the directions he had received from the Commanding General. Pedrick
does recall Boyce asking for a copy of the CG to PMO dated April 28,
1981, but states that he would not release it.
With regard to search authorizations, Pedrick assumed that the
authorization would be somewhat similar to a search warrant. He also
stated that in a criminal case an individual would be entitled to
receive such a warrant. Pedrick added that, after the fact, he saw
nothing in the document requested which could jeopardize internal
security.
Subsequently, on May 27, 1981, Boyce requested a copy of the CG's
directive to PMO of 28 April 1981. Boyce had not previously requested
this directive because prior to the meeting with Pedrick, he did not
know it existed.
On June 3, 1981, Boyce received a denial of his request for
information because the directive requested by him was an
"intra-management communication" not available to non-managerial
officials. Boyce had no communications with management officials
concerning clarification of his request on whether or not it was indeed
relevant and necessary information.
On June 8, 1981 a second request for the directive was made by the
Union. This request was also rejected by management on the same basis
as the initial denial.
Discussion and Conclusions
Scores of cases under the Executive Order, the Statute and private
sector law establish that a labor organization has a right to
information solely within an employer's possession which is necessary
and relevant to the representational responsibilities and to the
administration of the parties collective-bargaining agreement. Also,
the Authority has recently stated in several cases that under section
7114(b)(4) of the Statute such an obligation extends to the processing
of an employee grievance. Veterans Administration Regional Office,
Denver, Colorado, 10 FLRA No. 78 (1982); Veterans Administration
Regional Office, Denver, Colorado, 7 FLRA No. 100 (1982).
While the key element to furnishing information such as sought herein
is its relevance, Respondent in an ultrazealous attempt to exercise its
power raised a myriad of issues which had no connection with this matter
whatsoever. Notwithstanding the fact that this matter could very easily
have been resolved, even during hearing, Respondent engaged in conduct,
while not violative of the Statute most certainly is not within its
spirit and intent.
In its brief, Respondent quotes language from United States Air
Force, Air Force Logistics Command, Aerospace Guidance and Metrology
Center, Newark, Ohio, 4 FLRA No. 70 (1980) that:
Among equals, each party should deal with the other with
directness and dignity appropriate to partners on a equal footing,
one party should not be required to continually pursue the others
murky intent, with no regard of how specious and irrelevant that
intent might be.
Although adopting that language, Respondent most certainly did not
apply such candor in this matter.
Respondent's zeal, in my view, has cost the government a considerable
amount of time, money, and effort to defend a matter which could very
easily have been solved by making a good faith effort to inform the
Union, outside a combative posture it assumed in this matter, that the
information which it sought was not contained in the directive or by
merely making the Union aware that the directive was merely an
authorization from the commanding general to conduct the April searches.
Such a position could in no way compromise Respondent's internal
security. The end result is that after considerable expense to the
government, a resolution of the matter in this proceeding regardless of
whether an unfair labor practice is found makes the Union aware of what
was contained in the directive. In this matter there is, however, a
loser, the government.
In review, Respondent steadfastly asserts that the April 23, 1981
letter involved internal security. Nevertheless, Respondent's own
witness testified that revealing this letter, after the fact, would not
violate internal security. I agree. Clearly this directive or letter
contained no element of internal security and the same type letter had
already been offered and placed into evidence at a previous Merit
Systems Protection Board hearing. Respondent was even unwilling to
inform the Union that this was the same type directive that was earlier
introduced. Even an offer of the above information would have been
sufficient to settle the matter for it would have revealed to the Union
that it sought information which was not contained in documented form as
Steward Boyce had thought.
Respondent further contends that the information sought was
"intra-management communications," but without any justification for
this position. While not determinative, it might well be that some
"intra-management communications" might be necessary and relevant to
policing an agreement and which the exclusive representative might be
entitled to be furnished under section 7114(b)(4). Respondent made no
effort to discover whether or not this was the case.
Respondent also argues that the request had no relationship to any
pending grievances and argues that it was not necessary for
representational functions. It should be brought to Respondent's
attention that there were numerous actions being considered by the Union
at the time of the May 27, 1981 request including grievances, potential
arbitration and unfair labor practices. All matters within the ambit of
the collective bargaining agent's responsibility.
Unfortunately for the Union, the in camera review of the document
coupled with Boyce's testimony failed to establish that the document was
indeed relevant to any collective bargaining or representational need at
that time. The test for relevancy must be measured against the nature
of the request. Boyce's request was based on his conversation with
Major Pedrick, in which Boyce recalls Pedrick reading from a document or
directive indicating that an employee caught up in a random gate search
who requested Union representation would have 6 minutes to obtain a
steward or, if not, submit to a search or have his decal scratched.
Pedrick denies that he read from any directive or document and states
that his comments were merely a general discussion with Boyce concerning
Union representation. Boyce confirmed this by stating that an almost
identical directive which he was shown at the hearing was not what
Pedrick discussed with him. I credit Pedrick that the statement was
made in general conversation and not read from a directive. I also
credit Boyce that his interest was in the area of entitlement to a union
representative and the time allowed for an employee to obtain a steward
upon being stopped for a random gate search, in finding that the
directive was not relevant or necessary to the purpose for which he
admittedly sought the information.
As previously stated, Respondent's conduct herein is not in my view
compatible with the spirit and intent of the Statute. However, since
the requested information is found not to be relevant to administering
the collective bargaining agreement, the General Counsel's theory that
Respondent did not engage in good faith bargaining must be rejected.
In light of the above, specifically since it is found that the
directive was not relevant it is found that Respondent did not violate
section 7116(a)(1), (5), and (8) by refusing to furnish the April 28,
1981 directive to the Union.
Accordingly, it is recommended that the Authority dismiss the
Complaint in the instant matter, in its entirety. /3/
ELI NASH, JR.
Administrative Law Judge
Dated: November 24, 1982
Washington, DC
--------------- FOOTNOTES$ ---------------
/1/ 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(.)
/2/ Article 14, Section 1 provides:
Employees will be afforded the opportunity of parking their
private vehicles aboard the Base during the employees' working
hours, as close to their work area as possible, providing the
vehicle and driver are properly registered at the Provost
Marshall's Office.
/3/ The general counsel's unopposed Motion to Correct Transcript is
granted.