24:0154(22)CA - Defense Mapping Agency, Washington, DC and Defense Mapping Agency Aerospace Center, St. Louis, MO and NFFE Local 1827 -- 1986 FLRAdec CA
[ v24 p154 ]
24:0154(22)CA
The decision of the Authority follows:
24 FLRA No. 22 DEFENSE MAPPING AGENCY, WASHINGTON, D.C. AND DEFENSE MAPPING AGENCY AEROSPACE CENTER, ST. LOUIS, MISSOURI Respondents and NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1827 Charging Party Case No. 7-CA-50623 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent, Defense Mapping Agency Aerospace Center, St. Louis, Missouri (DMAAC) had engaged in certain unfair labor practices alleged in the complaint, and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. The Judge further found that the Respondent, Defense Mapping Agency, Washington, D.C. (DMA) had not engaged in the unfair labor practices alleged in the complaint and recommended that the complaint, insofar as it alleged a violation by Respondent DMA be dismissed. Thereafter, the Respondents filed exceptions to the Judge's Decision concerning DMAAC. The General Counsel also filed exceptions limited to the Judge's discussion of "presumptive relevance." 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 adopts the Judge's findings, conclusions and recommended Order. In agreement with the Judge, the Authority concludes that the Respondent (DMAAC) violated section 7116(a)(1), (5) and (8) of the Statute by failing and refusing to furnish the Charging Party (Union) with certain data from the Inspector General's 1985 Report it requested pursuant to section 7114(b)(4) of the Statute. In so concluding the Authority notes that the Judge specifically found, after considering the nature of the request and the circumstances in the case, that the information sought by the Union was necessary for it to perform its representational duties within the meaning of section 7114(b)(4) of the Statute, and further did not constitute guidance, advice, counsel or training for management representatives under section 7114(b)(4)(C). /*/ In particular the Judge considered, among other things, the fact that: the report contained material obtained after management spoke and conferred with unit employees; the report contained information related to unit employees' conditions of employment (for example, health, safety, security, etc.); and the Union was willing to accept the report in a sanitized form. Therefore, in the circumstances of this case, we conclude in agreement with the Judge that the requested information was necessary in order for the Union to perform its representational duties. 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 Defense Mapping Agency Aerospace Center, St. Louis, Missouri shall: 1. Cease and desist from: (a) Failing and refusing to furnish to the National Federation of Federal Employees, Local 1827 those portions of the 1985 Defense Mapping Agency Inspector General's Report containing factual findings of unit employees' conditions of employment at Defense Mapping Agency Aerospace Center, St. Louis, Missouri. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action: (a) Upon request, provide to the National Federation of Federal Employees, Local 1827 those portions of the 1985 Defense Mapping Agency Inspector General's Report containing factual findings of unit employees' conditions of employment at Defense Mapping Agency Aerospace Center, St. Louis, Missouri. The report may be sanitized to exclude management's opinion and evaluation of internal matters and DMAAC's operations. (b) Post at its facility at St. Louis, Missouri, 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 and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including bulletin boards and other places where such notices are customarily posted. Reasonable steps shall be taken to ensure 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 insofar as the complaint alleges a violation of section 7116(a)(1), (5) and (8) of the Statute by Respondent Defense Mapping Agency, Washington, D.C., it is hereby dismissed. Issued, Washington, D.C., November 21, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, 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 the National Federation of Federal Employees, Local 1827 those portions of the 1985 Defense Mapping Agency Inspector General's Report containing factual findings of unit employees' conditions of employment at Defense Mapping Agency Aerospace Center, St. Louis, Missouri. 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, upon request, provide to the National Federation of Federal Employees, Local 1827 those portions of the 1985 Defense Mapping Agency Inspector General's Report containing factual findings of unit employees' conditions of employment at Defense Mapping Agency Aerospace Center, St. Louis, Missouri. The report may be sanitized to exclude management's opinion and evaluation of internal matters and DMAAC's operations. (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: 535 - 16th Street, Suite 310, Denver, CO 80202, and whose telephone number is: (303) 837-5224. -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No.: 7-CA-50623 DEFENSE MAPPING AGENCY, WASHINGTON, D.C., AND DEFENSE MAPPING AGENCY AEROSPACE CENTER, ST. LOUIS, MISSOURI Respondent and NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1827 Charging Party Howard Bishop, Jr., Esq. For Respondent Cathy A. Auble, Esq. For General Counsel Before: WILLIAM NAIMARK Administrative Law Judge DECISION Statement of the Case Pursuant to a Complaint and Notice of Hearing issued on December 12, 1985, by the Regional Director for the Federal Labor Relations Authority, Region VII, a hearing was held before the undersigned on January 15, 1986 at St. Louis, Missouri. This case arose under the Federal Service Labor-Management Relations Statute, 5 U.S.C. Section 7101, et seq. (herein called the Statute). It is based on a second amended charge filed on December 9, 1985 by National Federation of Federal Employees, Local 1827 (herein called the Union) against Defense Mapping Agency, Washington, D.C. (herein called DMA or Respondent DMA) and Defense Mapping Agency Aerospace Center, St. Louis, Missouri (herein called DMAAC or Respondent DMAAC). The Complaint alleged, in substance, that on or about August 8 and September 5, 1985 the Union requested Respondent DMAAC to furnish it with the sanitized Inspector General Report regarding the 1985 inspection conducted at its facility in St. Louis, Missouri. The said data, it is alleged, was necessary for full and proper discussion, understanding and negotiation of subjects within the scope of bargaining. The Complaint also alleged that on or about August 15 and September 11, 1985, (a) Respondent DMA instructed Respondent DMAAC not to furnish the information requested by the Union; (b) Respondents failed and refused to furnish the information so requested -- all of which constituted a failure to comply with Section 7114(b)(4) of the Statute and is violative of Section 7116(a)(1), (5) and (8) thereof. Respondent's Answer, while admitting that DMAAC refused to furnish the data sought by the Union, denied that it was requested in sanitized form. It also denied the commission of any unfair labor practices under the Statute. All parties were represented at the hearing. Each was afforded full opportunity to be heard, to adduce evidence, and to examine as well as cross-examine witnesses. Thereafter briefs were filed with the undersigned, which have been duly considered. /1/ Upon the entire record herein, from my observation of the witnesses and their demeanor and from all of the testimony and evidence adduced at the hearing, I make the following findings and conclusions: Findings of Fact 1. At all times material herein the Union has been, and still is, the exclusive bargaining representative of all non-professional employees of the Defense Mapping Agency Aerospace Center located in the St. Louis, Missouri area, with specified exclusions from the aforesaid unit. 2. At all times material herein the Union and Respondent DMAAC were parties to a collective bargaining agreement covering the employees in the aforesaid unit. 3. The DMA, whose headquarters are in Washington, D.C., supports the Joint Chief of Staff and the Services with mapping, charting, and geodetic information. It produces maps and charts of terrain which are used by the Army, Navy, Air Force and Marines. 4. The DMAAC is a component of DMA. It produces aeronautical type charts and associated products used in aviation, as well as digital products used in command and control and weapon systems. The DMAAC has about 4,000 employees. 5. Attached to DMA is an Inspector General (IG) who, together with his staff, conducts an inspection annually of DMAAC. This is done in order to evaluate to component's management and determine its effectiveness, efficiency and readiness to perform its mission. The IG reviews the regulations published by the agency, management reports, and complaints registered by employees since the previous inspection. His staff is on the lookout for fraud, abuse or waste. 6. Upon conducting his inspection the IG holds "sensing" sessions with the DMAAC employees. These are undertaken to ascertain what are the problems from the viewpoint of employees. A briefing session is held with the Command group, and the IG staff speaks to top managers, supervisors and employees. 7. A report is written by the IG which provides the DMA Director with an evaluation of DMAAC's operations. It is a narrative summary with findings on problem areas or deficiencies. The report covers such matters as: compliance with statutes and regulations; health and safety; security clearances; and classification of positions. While conditions of employment are discussed in the report, no attempt is made to deal therein with the performance of DMAAC employees. It is deemed to be a management report which discusses the cause and effect of problems and deficiencies. Although recommendations may be made by the IG, he has no authority to implement them or to order anything to be done by DMAAC. 8. Record facts show that the Union received a copy of the IG report from DMA in 1980 which it used in connection with negotiations for the 1982 contract. /2/ Further, that it utilized a copy of an IG report from DMAAC when negotiating the 1977 contract. 9. In June, 1985 Colonel Maune, as IG for Respondent DMA, headed a team which conducted an inspection of DMAAC. Maune met with Virgil Hahn, then president of the Union, as well as Elmer Hacker, then secretary-treasurer /3/ of the Union, and Francis Jett, its chief shop steward. Several matters or subjects which were raised by the Union included: EEO, security problems of employees, mandatory overtime, and a classification appeal involving the photographers. /4/ IG Maune spoke to at least 20 individuals re these problems. 10. In a letter dated August 8, 1985, Elmer Hacker, president of the Union, wrote L. P. Eaves, Labor Relations Officer for DMAAC, and requested a copy of the IG inspection report of 1985. The request was made in accordance with Article 14-1 and 14-2 of the collective bargaining agreement. 11. Under Article 14-1 and 14-2 of the parties' agreement Respondent DMAAC is obliged to furnish all information, data or material which is relevant and necessary for the discharge of the Union's obligation under Public Law 95-45 and the agreement. This was stated to include, but not limited to, such copies of such terms as: (a) OPM, MSPB, DMA Regulations, AC instructions, or other regulations bearing on policies, practices, procedures and working conditions; (b) DOD & EEOC Regulations; (c) Mini-EEO plans of Affirmative Action; (c) Specific information requested for investigating or processing complaints/grievances/appeals. Statistical data supplied shall be from documents normally maintained in the regular course of business and in reasonably understandable form. 12. The record reflects that the request for the 1985 IG report was made to learn the findings of the inspection that dealt with the employees, and their working conditions. Further, the Union wanted to see what, if any, violations of regulations occurred as well as any uses of regulations which were contrary to the bargaining agreement. In such instances, the Union insisted it may want to grieve over same. 13. Eaves replied to the Union's request in a letter dated August 15, 1985. He stated therein that the report is an itnernal, confidential management document which does not have to be released under Article 14 of the contract. He denied the request. 14. Following the written denial by Eaves discussions ensued between Eaves and Union officials Hacker and Jett re the IG report of 1985. The Union representatives attempted to obtain the report by persuading Eaves to furnish same. They also indicated a willingness to accept it in a sanitized form. Eaves refused, again repeating that the report contained confidential information. The record reflects that the Eaves made the decision to deny the Union's request, and that he had not been instructed by DMA to do so. /5/ 15. In a letter dated September 5, 1985 Hacker renewed the Union's request for the IG report, reciting that it was needed because the Union believed the report contained a survey and analysis of personnel policies, practices or conditions of employment. Further, Hacker stated it was essential that it be reviewed so that the Union could police its contract and assess the impact upon actual or potential grievances. 16. The aforesaid request was again denied in a letter dated September 11, 1985 from Eaves to Hacker. 17. Hacker testified that four named employees in the bargaining unit have seen the 1985 IG report and were allowed to read it. Further, that the Civilian Welfare Committee had access to it. Hacker also testified that a named non-bargaining unit employee, a restaurant officer, had read the report. The basis for the foregoing, rested on the Union president's testimony that these named individuals told him they had read the document. Eaves testified he was unaware of any instances where prime IG reports were released to the Union. Colonel Stockhausen the IG, testified the report is not to be disseminated and it is the policy to keep the report within the management staff. The testimony by Hacker regarding the fact that other employees have been permitted to read the report is hearsay in nature. Moreover, there is nothing else in the record supporting a finding that management provided others with the 1985 IG report. While it may have occurred, I do not find that Respondents either gave the report to non-management people or afforded them an opportunity to read it. The IG report was considered by Respondents to be confidential in nature and for distribution only to management personnel. 18. DMA published an instruction dated August 29, 1984, currently in effect, which is designated as DMA INSTRUCTION 5700.2. It deals with the subject: "The Defense Mapping Agency Inspection Program." (Resp. Exh. 1). The Inspection Program applies to DMA Headquarters and the DMA Components. It is designed, according to the Instruction, to check the readiness of the components to perform its mission and the efficiency of its operation. The Inspector General of DMA is charged with responsibility to conduct the inspection. He is mandated to schedule personal conference periods so individuals may present complaints or request advice; to schedule "sensing" sessions to sample non-managerial employees for their opinions on different topics, including such items as security, facilities, safety, logistics and operations (paragraph 10(h) and (i), Resp. Exh. 1) DMAAC is required to follow the procedures established under DMA INSTRUCTION 5700.2. Paragraph 12(b) of the INSTRUCTION, entitled "Inspection Reports", provides that the reports are privileged documents and not releasable to anyone outside the DMA without the approval of the Director, DMA. Conclusions It is contended by General Counsel that Respondent DMAAC was obliged, under 7114(b)(4) of the Statute to furnish the Union with the IG Report covering the St. Louis facility. The report, it is asserted, includes information obtained from unit employees whose working conditions would be impacted by any changes resulting from the investigation. General Counsel insists that the Union needs the Report in order to police the contract, as well as effectively represent employees in discussions with management. Having refused to provide the said data, Respondent DMAAC has allegedly run afoul of 7116(a)(1), (5) and (8) of the Statute. A further contention is made that Respondent DMA, the headquarters in Washington, D.C., violated 7116(a)(1) and (5) by instructing and directing Respondent DMAAC -- its component -- not to furnish the IG Report to the Union. Respondents, in disputing any obligation to supply the Report, insist that: (a) The Union's requests were not specific and definitive so as to establish that the data was necessary and relevant to its representational functions; (b) the requested information is not necessary nor relevant for the Union to perform such duties; (c) under 7114(b)(4) of the Statute it is not encumbent on Respondent to furnish the report since it is an internal management document which has no direct relationship to conditions of employment; (d) Respondent DMA, the headquarters, is in no event responsible for any refusal to furnish the IG Report since the decision was made by Respondent DMAAC alone. In conformity with its obligation to negotiate in good faith, an agency is required to furnish data to the bargaining representative under certain circumstances. This obligation is codified in Section 7114(b) of the Statute, the pertinent provisions of which are as follows: 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; . . . Under the foregoing statutory language it must be shown that the information requested is necessary for the union to fulfill its representational functions. In this respect consideration must be given to the nature of the request for the data as well as the circumstances in each case. See Army and Air Force Exchange Service (AAFES), Fort Carson, Colorado, 17 FLRA No. 92, Respondents herein insist that the requests by the Union were too broad and unspecific to permit DMAAC to determine if the information was relevant and necessary to the Union's representational function. It is contended that the requests failed to identify the type of information sought by specific subject matter. It is true that an obligation is imposed upon a union to request data in a manner which will not compel an agency to speculate or conjecture as to what is sought by the representative. The Authority has frowned on requests which are broader than what is reasonably needed to administer or police contractual provisions of an agreement. Thus, a failure to mention time periods for certain conformation re contracts "let out" was deemed indefinite. Director of Administration, Headquarters, U.S. Air Force, 6 FLRA No. 24. Further, as stated therein by Judge Dowd, the Union's right to information "for the purpose of contract administration and policing a particular contract provision has support in the case law only where the union is able to show relevance." Thus, a mere assertion by a union that it needs data to process a grievance does not automatically oblige an agency to furnish same. No presumptive relevance necessarily attaches thereto. See Department of the Treasury, United States Customs Service, Region IV, Miami, Florida, 18 FLRA No. 53. In the case at bar I am not persuaded that, in light of the circumstances, the request for the IG Report by the Union was too broad or indefinite so as to vitiate any responsibility on management's past to furnish same. In regard to the request made on August 8, 1985, I would agree that it reflects no relevance nor necessity for the data within the meaning of 7114(b)(4)(B). The mere assertion that the demand was in accordance with Article 14-1, 14-2 of the collective bargaining agreement discloses no relevance. Such a request is not tied to any specific employment condition nor does it show, on its face, that it is necessary to negotiating any subject with management. While the particular article of the agreement, which was mentioned in the said request, obliges the agency to furnish information to the Union, it refers to various government rules and regulations. Further, it merely requires that DMAAC supply data needed for the Union's investigating or processing complaints or grievances. Such a provision does not dispense with the statutory requirement that the relevance and necessity for information be shown or declared in the request. The record does reflect, however, that on September 5, 1985 the Union renewed its request for the IG Report. More definitely, it stated the Union believed the Report contained a survey and analysis of personnel practices, policies and working conditions; that the Union wanted to review the Report in order to police the contract and assess its impact on possible grievances. Moreover, the Union indicated its willingness, after Eaves refused the initial request on August 15, 1985, to accept the Report in sanitized forms, at which time management advised the Union official it was confidential and couldn't be released. While this request may not be termed "presumptively relevant", the circumstances surrounding it warrant the conclusion that the demand was necessary for discussion, understanding and negotiation within the meaning of 7114(b)(4)(B). Support for this view is seen in light of the fact that: (a) the Report contained material obtained after management spoke and conferred with about 20 employees; (b) "sensing" sessions were held with employees inquiring as to problems concerning safety and equal opportunity; (c) the Report dealt with such subjects as health and safety, security, and position classifications; (d) the Union's willingness to accept a sanitized version of the said Report. Since the Report contains information pertaining to the foregoing conditions of employment obtained, in part, after discussions with employees, it is certainly understandable that the Union would utilize this data in some negotiations with DMAAC. Further, it appears that the Union, based on its willingness to accept the Report after sanitization, was interested only in those aspects of the Report bearing on working conditions affecting the unit employees. While other aspects of the Report may involve a review or analysis of management, its supervisory hierachy, or internal operations, a request for information limited to these conditions of employment affecting the unit involves a demand for relevant and necessary data under the Statute. See American Federation of Government Employees, AFL-CIO, Local 1708 and Military Ocean Terminal, Sunny Point, Southport, S.C., 15 FLRA No. 1 (where the Authority deemed negotiable a union proposal that information derived from work studies be provided to the union). A somewhat similar situation to the one at bar existed in Department of Health and Human Services, Social Security Administration, Field Assessment Office, 12 FLRA No. 84. Management dispatched its analysts to conduct a study of travel practices of its Evaluation Staff in a regional office. The analysts interviewed unit employees in regard thereto and then turned in reports with their findings. It was held that the agency must supply the reports to the extent they contain factual findings as to travel practices existent in the region. Since the reports contained facts elicited from employees re travel problems, it was concluded that the Region could be expected to maintain such information in its files for use in discussions with the union re travel problems in the region. Thus, the findings of the analysts in that regard were deemed "necessary" to collective bargaining. /6/ Respondents attempt to distinguish the foregoing case from the one at hand. It is asserted that the purpose of the IG Report was not to gather information for use in changing working conditions, which was the aim in the cited case. Further, that no bargaining or ongoing discussions with the Union herein were in progress, whereas the parties in the Social Security case, supra, were conferring re travel practices. I am satisfied, based on the record herein, that the Union was interested in the findings concerning working conditions as they affected employees. In its request the Union so stated. There is no indication that the bargaining representative wanted internal management data, and this is buttressed by a willingness to accept the Report on sanitized forms. It is not determinative that the parties herein were not engaged in contract discussions or negotiations. A union may utilize information in preparation for bargaining, or for proposals to management in connection with working conditions. It is not a prerequisite that actual bargaining be in progress before a union is entitled to necessary and relevant information. See I. G. Case v. NLRB, 253 F.2d 149 (7th Cir. 1958). Respondents insist that the Report discusses matters outside the scope of bargaining. Further, that it contains opinions of management as well as evaluations which are not necessary to the union's representational functions. Nevertheless, Eaves testified that there were terms in the Report that dealt with conditions of employment. To the extent that the Report evaluated its operations at DMAAC and contained material of a confidential nature, I would agree that the Union would not be entitled to such data. See Detroit Ednmo v. N.L.R.B., 440 U.S. 301. However, there is no issue of confidentiality herein inasmuch as the Union expressed its willingness to accept the Report in sanitized form. Under those circumstances Respondents need furnish only those factual findings based on discussions with unit employees concerning working conditions -- the latter to include such matters as health and safety, security, and position description. In sum, I conclude that the 1985 IG Report involving the component, Defense Mapping Agency Aerospace Center, St. Louis, Missouri, insofar as it pertains to data obtained from employees thereat concerning their various working conditions and employment is necessary and relevant for full and proper discussion, understanding and negotiation of collective bargaining subjects within the meaning of Section 7114(b)(4)(B); and that such portion thereof does not constitute guidance, advice, counsel or training for management representatives under subdivision (C) of that section. /7/ As such, the Union was entitled to receive same, and the failure or refusal by Respondent DMAAC to furnish said particular part of the Report was violative of Section 7116(a)(1), (5) and (8) of the Statute. In respect to the responsibility of Respondent DMA for the refusal to furnish the data to the Union, I conclude that it played no part in such conduct. The Authority has held, it is true, that where higher level management prevents agency management at the level of exclusive recognition from fulfilling its bargaining obligation, such conduct will constitute an unfair labor practice. Department of Health and Human Services, et al., 10 FLRA No. 9; Department of the Interior, Water and Power Resources Service, Grand Coulee Project, Grand Coulee, Washington, 9 FLRA No. 46. In both of the cited cases the higher level directed lower level management in respect to the action taken by the latter, which is markedly different from the occurrence herein. Record facts disclose that DMA headquarters in Washington, D.C. did not direct or order the component to refuse to furnish the data to the Union; that the decision to so refuse was made by Eaves, DMAAC's Labor Relation Specialist, with no impact or direction from the headquarters; and that the latter took no steps to prevent DMAAC from fulfilling its obligation to supply data as required under the Statute. Accordingly, I conclude Respondent DMA has not violated the Statute herein as alleged. Having concluded that Respondent Defense Mapping Agency Aerospace Center, St. Louis, Missouri violated Section 7116(a)(1), (5) and (8) of the Statute, it is recommended that the Authority issue the following: ORDER /8/ Pursuant to Section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and Section 7118 of the Statute, the Authority hereby orders that the Defense Mapping Agency Aerospace Center, St. Louis, Missouri shall: 1. Cease and desist from: (a) Failing and refusing to provide to National Federation of Federal Employees, Local 1827 those portions of the 1985 Defenses Mapping Agency Inspector General's Report containing factual findings of unit employees' conditions of employment at Defense Mapping Agency Aerospace Center, St. Louis, Missouri. (b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action: (a) Upon request, provide to National Federation of Federal Employees, Local 1827 those portions of the 1985 Defense Mapping Agency Inspector General's Report containing factual findings of unit employees' condition of employment at Defense Mapping Agency Aerospace Center, St. Louis, Missouri. (b) Post at its facility at St. Louis, Missouri, 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, or his designee, and shall be posted and maintained by him for 60 consecutive days thereafter in conspicuous places, including bulletin boards and other places where notices 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) Notify the Regional Director, Region VII, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the Complaint insofar as it alleges a violation of Section 7116(a)(1), (5) and (8) of the Statute by Respondent Defense Mapping Agency, Washington, D.C. be, and it hereby is, dismissed. /s/ William Naimark Administrative Law Judge Dated: June 6, 1986 Washington, D.C. --------------- FOOTNOTES$ --------------- (*) Noting the Judge's finding in this regard, we conclude, contrary to the General Counsel's exceptions, that the Judge did not apply a "presumptive relevance" standard. Rather, he found, and we agree, that the information was necessary in the circumstances of this case within the meaning of section 7114(b)(4) of the Statute. (1) Subsequent to the hearing, General Counsel filed a Motion to Correct the Transcript. No objections having been filed thereto, and it appearing that the proposed corrections are proper, the Motion is granted as requested. (2) Virgil Hahn, who was president of the Union from 1977 to August, 1985, testified he used the reports in negotiating merit promotions and equal opportunity concerns. Further, the 1980 report was used in respect to the number of employees to be placed on a promotion certificate. (3) Hacker became president of the Union in August, 1985. (4) This was a statutory appeal through OPM. It was not based on a Union grievance nor was the Union a party to the appeal. (5) Hacker testified he did not remember whether Eaves said he had been directed not to give the report to the Union, or whether "that was what came across . . . ." He also stated he "got the impression" it came from headquarters. Jett testified that Eaves told the Union representatives he had been directed not to release the report but did not identify who so directed him. The state of the record, together with the lack of certitude in the testimonies of the Union officials, persuades me that the decision not to release the report was made by Eaves; that, further, there is no independent evidence that he was directed by DMA not to furnish same to the Union. (6) Cf. U.S. Customs Service, Region IV, Mimai, Florida, 3 FLRA No. 127, where a "Tennant Study" which included interviews with employees, was made to verify the agency's records re overtime -- to ascertain whether the agency was being properly reimbursed by the airlines or shipping firms for overtime services. In the case at bar the sessions with employees were held to find out from employees what they considered to be problems as to certain working conditions. (7) No issue was raised under subdivision (A) that the IG Report was not normally maintained by the agency on the regular course of business. (8) While the recommended order herein provides for specified data on the IG Report to be furnished to the Union, the Report may be sanitized to exclude management's opinion and evaluation of internal matters and DMAAC's operation. APPENDIX 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 STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT fail or refuse to provide the National Federation of Federal Employees, Local 1827 those portions of the 1985 Defenses Mapping Agency Inspector General's Report containing factual findings of unit employees' conditions of employment at Defense Mapping Agency Aerospace Center, St. Louis, Missouri. 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, upon request, provide to National Federation of Federal Employees, Local 1827 those portions of the 1985 Defense Mapping Agency Inspector General's Report containing factual findings of unit employees' conditions of employment at Defense Mapping Agency Aerospace Center, St. Louis, Missouri. (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 employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region VII, whose address is: 535 - 16th Street, Suite 310, Denver, CO 80202, and whose telephone number is: (303) 837-5224.