24:0292(36)CA - Army and Air Force Exchange Service, Dallas, TX and AFGE Local 1345 -- 1986 FLRAdec CA
[ v24 p292 ]
24:0292(36)CA
The decision of the Authority follows:
24 FLRA No. 36 ARMY AND AIR FORCE EXCHANGE SERVICE, DALLAS, TEXAS Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1345, Charging Party Case No. 7-CA-50646 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding finding that the Respondent had committed certain unfair labor practices alleged in the complaint, and recommending that it be ordered to cease and desist therefrom and to take certain affirmative action. The Judge found that the Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended that the portion of the complaint relating to those unfair labor practices be dismissed. Thereafter, the Respondent filed exceptions only to the Judge's recommendation that it be ordered to provide without charge to the Union a copy of a video tape in connection with an employee grievance. 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 prejudical 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. 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 Army and Air Force Exchange Service, Dallas, Texas, shall: 1. Cease and desist from: (a) Failing and refusing to provide, without charge to the American Federation of Government Employees, AFL-CIO, Local 1345 (hereinafter referred to as "Local 1345"), the employees' exclusive representative, a copy of the data requested by Local 1345 relating to disciplinary action against employee Nancy Bundy. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute: (a) Provide, without charge, to Local 1345 a copy of the video tape for July 3, 1985, the day on which the alleged under ring by Nancy Bundy occurred. (b) Make available for inspection by Local 1345 5he entire cash register tape for the cash register used by Nancy Bundy on the day of the alleged under ring by Nancy Bundy and provide, without charge, to Local 1345 a copy of such portions of said cash register tape as Local 1345 may designate. (c) Post at its facilities at the Army and Air Force Exchange Service, Fort Carson, 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 a senior official of the Army and Air Force Exchange Service, Fort Carson, Colorado, 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 appropriate official shall take reasonable steps to ensure that such Notices are not altered, defaced, or covered by any other material. (d) Pursuant to Section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of Region VII, Federal Labor Relations Authority, 535 16th Street, Suite 310, Denver, Colorado 80202, in writing, within 30 days of this Order, as to what steps have been taken to comply herewith. IT IS FURTHER ORDERED that that portion of the Complaint which relates to Local 1345's request for data of August 23, 1985, be, and the same is hereby, dismissed. Issued, Washington, D.C., December 4, 1986. Jerry L. Calhoun, Chairman Henry B. Frazier III, Member Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY NOTICE OF 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, without charge to the American Federation of Government Employees, AFL-CIO, Local 1345 (hereinafter "Local 1345"), our employees' exclusive representative, a copy of the requested data relating to disciplinary action against employee Nancy Bundy. 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 provide, without charge, to Local 1345 a copy of the video tape for July 3, 1985, the day on which the alleged under ring by Nancy Bundy occurred. WE WILL make available for inspection by Local 1345 the entire cash register tape for the cash register used by Nancy Bundy on the day of the alleged under ring by Nancy Bundy, and we will provide, without charge, to Local 1345 a copy of such portions of said cash register tape as Local 1345 may designate. (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 7, whose address is: 535 16th Street, Suite 310, Denver, Colorado 80202 and whose telephone number is: (303) 837-5224. -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 7-CA-50646 ARMY AND AIR FORCE EXCHANGE SERVICE, DALLAS, TEXAS Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1345 Charging Party Luther G. Jones, Esquire For the Respondent Nicholas J. LoBurgio, Esquire For the General Counsel Before: WILLIAM B. DEVANEY Administrative Law Judge DECISION Statement of the Case This proceeding, under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. Section 7101, et seq., /1/ and the Final Rules and Regulations issued thereunder, 5 C.F.R. Section 2423.1, et seq., in essence concerns whether Respondent failed to comply with Section 14(b)(4) of the Statute and thereby violated Sections 16(a)(1) and (8) of the Statute by failing to provide the Union with a copy of a video-tape, although the Union had been shown the tape, i.e., the tape had been run on a VCR and viewed on a TV screen. This case was initiated by a charge filed on September 30, 1985 (G.C. Exh. 1(a)) which alleged violations of Sections 16(a)(1)(5) and (8); a Complaint and Notice of Hearing issued on January 7, 1986 (G.C. Exh. 1(c)), which alleged violations of Sections 16(a)(1), (5) and (8); a First Amended Charge was filed on January 17, 1986 (G.C. Exh. 1(b)) which alleged violations of Sections 16(a)(1), (5) and (8); and an Amended Complaint and Amended Notice of Hearing issued on January 22, 1986, which alleged violations of Sections 16(a)(1), (5) and (8) and set the hearing for February 18, 1986, pursuant to which a hearing was duly held on February 18, 1986, in Colorado Springs, Colorado, before the undersigned. All parties were represented at the hearing, were afforded full opportunity to be heard, to introduce evidence bearing on the issues involved, and were afforded the opportunity to present oral argument. At the close of the hearing, March 18, 1986, was fixed as the date for mailing post-hearing briefs, and General Counsel and Respondent each filed a brief, received on, or before, March 18, 1986, which have been carefully considered. Upon the basis of the entire record, /2/ including my observation of the witnesses and their demeanor, I make the following findings and conclusions: Findings 1. American Federation of Government Employees, AFL-CIO, Local 1345 (hereinafter referred to as the "Union"), represents employees in two separate bargaining units at Fort Carson, Colorado. One unit encompasses appropriated fund activities; and the other covers non-appropriated fund Army and Air Force Exchange Service employees at the Fort Carson Exchange and the Pueblo Army Depot (hereinafter referred to as "AAFES") (G.C. Exh. 2, Tr. 16-17). The AAFES exchange at Fort Carson is essentially similar to a department store. 2. Sometime in late June, 1985, about June 27, or 28, Respondent, through electronic surveillance specialists from its Ohio Valley Exchange Region, at the request of AAFES locally, began covert video-tape surveillance of unit employee/cashier Nancy Bundy (Tr. 91-93). These specialists made 14 eight hour tapes of Ms. Bundy at work (Tr. 95). Upon completion of the surveillance, the surveillance specialists departed the area and left with Respondent's Area Security Specialist, Janet Scruggs, one, July 3, 1985, video-tape which contained an alleged infraction of procedures by Ms. Bundy. 3. Upon receipt of this video-tape, Ms. Scruggs took a VCR out of stock (i.e., a VCR for sale through AAFES) and showed the video-tape to management officials of AAFES (Tr. 96, 101-102). On July 12, 1985, Ms. Bundy was issued a letter placing her on administrative leave (Tr. 60, 61; G.C. Exh. 3). Ms. Bundy reported to the Union that Mr. Harry Reimann, at the time Fort Carson Exchange detective supervisor, when he delivered the letter of July 12, told her that, " . . . they had her on tape, that there was some alleged mishandling of merchandise, improper scanning or something, and that she was going to be investigated with possible termination." (Tr. 17). Ms. Carolyn Gudjonsson, a Senior Health Technician at the Medical Activity, U.S. Army Community Hospital, Fort Carson, and President of the Union, called Mr. Richard Miller, Personnel Manager for the Rocky Mountain Area Exchange, which includes Fort Carson, as well as Peterson Air Force Base, the U.S. Air Force Academy, Lowry Air Force Base, Fitzsimons Army Medical Center, and F. E. Warren Air Force Base in Cheyenne, Wyoming, and told him the Union was concerned about Ms. Bundy being placed on administrative leave and asked Mr. Miller what sort of tape were they talking about (Tr. 18). Mr. Miller told Ms. Gudjonsson that ". . . they had a video film or video tape, and also had a cash register tape that showed that she (Bundy) had mishandled merchandise." (Tr. 18). 4. By letter dated July 24, 1985, and addressed to Mr. Miller (G.C. Exh. 4), Ms. Gudjonsson, as President of the Union, pursuant to Section 14(b)(4) of the Statute requested copies of: -1. Vidio (sic) -tape showing alleged under-ring by Nancy Bundy -2. Sales tape from the register used by Nancy Bundy on the day of alleged under-ring." (G.C. Exh. 4). 5. Mr. Miller testified that on the 25th or 26th of July, 1985, although he had not received the request of July 24, he received another telephone call from Ms. Gudjonsson in which she stated that, ". . . Mrs. Toro, who is the main store manager, would not allow them to view a copy of the video tape that contained the alleged under ring by Nancy Bundy. I responded to her by saying that I would make certain that the tape was made available to them for their viewing, and that I would contact Mrs. Toro and make her aware that we were obliged to allow the union to view the tape and they should arrange a mutually convenient time. She mentioned the cash register tape and again, I stated that certainly we would make that available to them to view to look at in any way they wished, being this is potential evidence in a disciplinary action. Of course, I didn't feel it was appropriate to simply give it to them at that time, but I felt it was important that they see it certainly." (Tr. 65-66). 6. Notwithstanding Ms. Gudjonsson's formal written request of July 24, 1985, and her telephone conversation with Mr. Miller on July 25 or 26, 1985, Respondent did nothing with regard to the Union's requests until August 16, 1985, when, at the conclusion of a meeting on other matters, Mr. J.R. Cupples, Fort Carson Exchange Manager, told Ms. Clara Benson, Union Exchange representative, and Ms. Marlene Moosman, Union Executive Vice President, that the video tape on Ms. Bundy was available for them to see. Mr. Cupples arranged for the viewing in the office of Mr. Mark Polczynski, AAFES Sales and Merchandise Manager. Present in the room at the viewing of the tape were: Moosman, Benson, Reimann, who ran the tape, Polczynski and Ms. Eleanor Richards, AAFES Detective (Tr. 43-44). /3/ Shortly after Mr. Reimann started the tape, Ms. Benson said, "Wait a minute. Where is Nancy (Bundy)? I thought she suppose(d) to be in this meeting" (Tr. 45); and Ms. Benson said that Mr. Reimann responded, "Nancy has already seen the film" (Tr. 45). Ms. Benson told Mr. Polczynski, ". . . we need her to review the film with us . . ." and Mr. Polczynski went out and paged Ms. Bundy to come to the office (Tr. 45). When Ms. Bundy arrived, Ms. Benson stated that she, Bundy had never seen the film (Tr. 45). At any event, with Ms. Bundy present the video tape was run and then re-run at a slower speed and the tape was stopped on different actions, ". . . like for this second scan and the third scan." (Tr. 48). After the video tape had been shown, Mr. Reimann handed Ms. Moosman the cash register receipt and stated there were ". . . three items on the register tape and four items on the film." (Tr. 49). Ms. Moosman looked at the cash register tape and then handed it to Ms. Benson and as Ms. Benson looked at the cash register tape, she said she stated, "Well, if there is four items listed, isn't it possible that the scanner did not pick up this item." at which point Mr. Polczynski said, "Well, that has happened to me several times" (Tr. 49) and Mr. Reimann said, "You (Polczynski) shouldn't have said that." (Tr. 49). Ms. Benson said she, ". . . saw four items go through over the scanner." (Tr. 46). 7. After review of the video tape, Ms. Moosman said she did not see the red light and Ms. Benson confirmed that she could not see a red light either (Tr. 49, 48). The existence or non-existence of the red light is important to the Union's defense of Ms. Bundy because it could show whether or not she should have been aware that an item placed on the scanner had not actually been picked up by the scanner (Tr. 48, 54). 8. Mr. Reimann stated to Ms. Moosman, Ms. Benson and Ms. Bundy that, ". . . they had filmed Mrs. Bundy for over a week and that they had three to five more tapes"; but when Ms. Benson asked to see them because, according to Benson, "We are supposed to view all the video film that you have on Nancy (Bundy)", Mr. Reimann said they did not have them; that they had been sent to the Ohio Valley Exchange Region in Charleston, Indiana, which was confirmed by Mr. Polczynski (Tr. 50). Ms. Benson testified that she understood that if a red light came on the light must cleared, by running the item over the scanner until it picks up the code or the price of the item is entered manually, before the register will give a total price of the purchases (Tr. 56). 9. After Mr. Benson and Ms. Moosman reported to Ms. Gudjonsson about the problems they had in reviewing the excerpt of the video tape which Respondent had shown, Ms. Gudjonsson, by letter dated August 19, 1985 (G.C. Exh. 9), again requested copies of: "-1. Copy of the video (sic) tape showing alleged under ring by Nancy Bundy. -2. Copy of the sales register tape used on day of alleged under ring. -3. Documentation reflecting any and all other data relied upon to substantiate the reasons for the proposed removal." (G.C. Exh. 9). 10. By letter dated August 23, 1985 (G.C. Exh. 10), Ms. Gudjonsson expanded her request and asked for, "1. All vidio (sic) films or all employees for the last two months, to include the months of July and August, 1985." (G.C. Exh. 10). 11. In the meantime, on August 2, 1985, Ms. Bundy had been given an "Advance Notice of Separation for Cause" (G.C. Exh. 5), which was rescinded by letter dated August 6, 1985, "Due to a procedural error . . ." (G.C. Exh. 6); however, a further "Advance Notice of Separation for Cause" was given to Ms. Bundy on August 7, 1985 (G.C. Exh. 7). Ms. Bundy responded by letter dated August 9, 1985 (G.C. Exh. 8), and, inter alia designated as her representative," AFGE Local 1345 and Mary McRae, Union Steward or her designee." (G.C. Exh. 8). By letter dated August 28, 1985, Ms. Bundy was given "Final Notice of Separation for Cause" (G.C. Exh. 11). 12. On September 13, 1985, Ms. Bundy filed a 1st Step Grievance (G.C. Exh. 12). 13. On the same date that Ms. Bundy filed her grievance, September 13, 1985, Mr. Miller, for the first time responded to Ms. Gudjonsson's information requests. His letter, dated September 13, 1985 (G.C. Exh. 13) stated as follows: "1. Reference your letters . . . dated 19 and 23 August 1985. (Mr. Miller denied ever having received Ms. Gudjonsson's letter of July 24, 1985) "2. A copy of the video tape showing the 'alleged under ring by Nancy Bundy' is not available. Ms. Bundy and her representative reviewed his video tape on 16 August 1985, and the original tape is available for your further review at a mutually acceptable time. Should you feel that a copy is required, we would create a copy of the tape provided the Union would be willing to reimburse Management for any expense incurred. Please advise us if you should wish to again view the tape, or if a copy is required. (Emphasis supplied). "3. The cash register tape used on the day of the alleged under ring was also reviewed by Ms. Bundy and her representative on 16 August 1985. As we discussed in an earlier telephone conversation, Management will provide a copy of the appropriate segment of that cash register tape. Should you wish to review the entire tape again, it can be made available at a mutually acceptable time. "4. There is no other documentation or data which was relied upon by Management in making a decision to propose Ms. Bundy's separation for cause. "5. Your request for 'All video films on all employees for the last two months to include the months of July and August, 1985,' has been carefully considered, and Management is unconvinced that those tapes would constitute relevant data in this matter. We will consider any further input you might have on this matter." (G.C. Exh. 13). 14. Ms. Bundy's grievance was denied at the first step; on September 23, 1985, was elevated to the second step (G.C. Exh. 14), where it was denied on September 26, 1985 (G.C. Exh. 16). On the same day, that the second step grievance was denied, September 26, 1985, Mr. Miller provided Ms. Gudjonsson with a copy of a section of the cash register tape which shows the transaction in question (G.C. Exh. 15). On October 1, 1985, Ms. Bundy elevated her grievance to the third step (G.C. Exh. 17); and on October 21, 1985, Mr. Cupples reduced the separation to a 14 calendar day suspension, which he considered to have been served, and reinstated Ms. Bundy to a non-cash-handling position, effective August 31, 1985 (G.C. Exh. 18). By letter October 22, 1985, the "settlement offered" by Mr. Cupples at the third step was rejected (G.C. Exh. 19); by letter dated October 24, 1985, Mr. Cupples advised Ms. Gudjonsson that his letter of October 21, was "not an offer of settlement, but rather my final decision on her grievance" (G.C. Exh. 20). Mr. Cupples further advised that by returning to work Ms. Bundy "does not waive any rights she may have to grieve the personnel action taken in my final decision." (G.C. Exh. 20). By letter dated October 28, 1985, Ms. Gudjonsson advised Mr. Cupples that Ms. Bundy would return to work on October 31, 1985, in a non-cash-handling position, with the understanding that this, ". . . in no way waivers any of her rights in the grievance/arbitration process . . . . ." (G.C. Exh. 21). On October 25, 1985, a request for arbitration panel was filed (G.C. Exh. 22). At the time of the hearing, an arbitrator had not been selected and Ms. Gudjonsson testified that the Union still needs the requested data for the pending arbitration (Tr. 39, 40, 41). 15. In order to produce a copy of a video tape, two VCRs are required (Tr. 99, 100), with, of course, the necessary connections. The tape in question was recorded at the slowest possible speed and, to play the tape back, the VCRs must be capable of speed adjustment to this slow speed, a feature not all VCRs have. VCRs, if capable of the necessary speed adjustment, could be taken out of stock and used for this purpose; or the surveillance specialists, who have the necessary equipment, could make a copy. The estimated cost of each blank video tape was $4.00 to 6.00 (Tr. 101) and, once started, the process is automatic (Tr. 101). 16. Ms. Gudjonsson testified that the Union needed copies of both the video tape and the cash register tape for a variety of reasons: a) because most of the Union's grievance work by representatives is done after normal business hours; b) the need to show the video tape to co-workers of Ms. Bundy, either after hours or at their homes, to determine what the normal procedures for cashiers were and whether Ms. Bundy was being treated disparately (Tr. 25, 26, 28, 32); c) the Union needed to review the video tape privately so that they could openly discuss the pros and cons of the case; d) the Executive Board is required to review all available evidence before making a decision to take the case to arbitration (Tr. 30); e) the Executive Board members are primarily appropriated fund employee and must take annual leave to work on AAFES cases; f) review of the video tape alone is not satisfactory because to correlate events before, during and after the alleged infraction, the entire cash register receipt must be reviewed (Tr. 33). Ms. Benson testified that copies of the data were needed for similar reasons (Tr. 51, 52, 53). Conclusions Section 14(b)(4) of the Statute provides: "(b) The duty of an agency . . . 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 U.S.C. Section 7114(b)(4)). It is well established that a union's right to receive, and the agency's obligation to furnish, such data pursuant to Section 14(b)(4) extends to the union's statutory representational obligation in the processing of an employee grievance. Bureau of Alcohol, Tobacco and Firearms, National Office and Western Region, San Francisco, California, 8 FLRA No. 108, 8 FLRA 547 (1985); Veterans Administration Regional Office, Denver Colorado, 10 FLRA No. 78, 10 FLRA 453 (1982). At the hearing, counsel for Respondent conceded that video tapes and cash register tapes constituted "data", within the meaning of Section 14(b)(4) of the Statute, for the purpose of this case (Tr. 107). In any event, I specifically find that business records, regardless of physical form, constitute data within the meaning of Section 14(b)(4) of the Statute. See, for example, Long v. Internal Revenue Service, 596 F.2d 362 (9th Cir. 1979); 44 U.S.C. Section 3301. 1. Request for video tape showing alleged under ring. Respondent advances two defenses: First, that in its requests /4/ the Union did not set forth reasons why copies the data requested were necessary. Thus, Respondent states, "There has been no refusal to provide data to the Union. The obligation to provide the basis for the Union's conclusion that certain data is 'necessary,' as required by Section 7114 (b)(4)(B), rests upon the Union. The Activity cannot be compelled to guess. At the time the letter of September 13, 1985 (G.C. Exhibit 13) was written, the Activity had no knowledge of the reason the Union sought a copy of the video tape. In this letter the Activity's last sentence was a request for further input, i.e., "(w)e will consider any further input you might have on this matter.' Instead of providing the Activity an explanation, the Union filed its unfair labor practice charge (G.C. Exhibit 1a) and did not disclose, until the day of trial, the basis for its conclusion that a copy was 'necessary.' The Activity has been denied an opportunity to consider such basis and, therefore, cannot be considered to have refused." (Respondent's Brief, pp. 1-2). It is certainly true that the Union did not set forth in detail the reasons for its need for copies of the video tape and cash register tapes in its requests. The Union merely stated, "Such information is necessary /5/ to evaluate the grounds for a grievance or other applicable action beyond PL 95-454." (G.C. Exhs. 4, 9 and 10). Nevertheless, the short answer to Respondent's assertion is that Respondent never asked why the Union needed the copies of the data requested. As I stated, in Internal Revenue Service, Memphis Service Center and National Treasury Employees Union, Case No. 4-CA-30371, OALJ-84-66, ALJ Decisions Report No. 38 (July 5, 1984), " . . . an agency acts at its peril if it refuses to furnish data without asking for a reason. Then, of course, the union may subsequently show its justification for the request. Where an agency sought clarification of the reason for a request and the union failed to respond, refusal to furnish the data requested was not an unfair labor practice. Internal Revenue Service, Buffalo District, Buffalo, New York, 7 FLRA No. 102, 7 FLRA 654 (1982)." (Case No. 4-CA-3071 at p. 7); see, also, Department of Health and Human Services, Social Security Administration, Field Operations, New York Region, 21 FLRA No. 35, 21 FLRA 253 (1986). The Union's written requests of July 24 and August 19, 1985 had been for copies of: "-1. Vidio (sic) - tape showing alleged under-ring by Nancy Bundy" (July 24; G.C. Exh. 4) "-1. Copy of the vidio (sic) tape showing alleged under ring by Nancy Bundy." (August 19; G.C. Exh. 9) "-2. Sales tape from the register used by Nancy Bundy on the day of alleged underring." (July 24; G.C. Exh. 4) "-2. Copy of the sales register tape used on day of alleged under ring." (August 19; G.C. Exh. 9). On August 23, 1985, the Union requested copies of: "-1 All vidio (sic) films on all employees for the last two months, to include the months of July and August, 1985." (G.C. Exh. 10). Mr. Miller, in his letter of September 13, 1985, first responded to the request of August 19, 1985 (he denied ever having received the request of July 24, 1985, although the request was addressed to him) and in the final paragraph responded to the request of August 23, 1985. As the request of August 23 was vastly different, as was the response, this request will be considered hereinafter. The Union's request of August 19, and the wholly identical request of July 24, for a copy of the video tape ". . . showing alleged under ring by Nancy Bundy" was not denied because the Union had not shown the reason for need of the copy; nor did Respondent request further justification than, as the Union had asserted, "Such information is necessary in order to evaluate the grounds for a grievance or other applicable action beyond PL 95-454" (G.C. Exh. 9). To the contrary, Respondent, in its response of September 13, 1985, stated: "2. A copy of the video tape showing the 'alleged underring by Nancy Bundy' is not available . . . Should you feel that a copy is required, we would create a copy of the tape provided the Union would be willing to reimburse Management for any expenses incurred . . . Please advise us . . . if a copy is required." (G.C. Exh. 13) (Emphasis supplied). Consequently, Respondent's assertion, that, "The Activity has been denied an opportunity to consider such basis (i.e. "that a copy was 'necessary'") . . ." is without basis and is rejected. The Union has demonstrated that a copy of the video tape "showing alleged under ring" was ". . . both necessary and relevant to enable the Union to fulfill its legitimate representational role in processing the employee's grievance . . ." Veterans Administration Regional Office, Denver, Colorado, supra, 10 FLRA at 454. Moreover, Mr. Miller, Respondent's Personnel manager, testified that, since the video tape and the cash register tape was the only evidence against Ms. Bundy (Tr. 77), it was "important" that the Union see it (Tr. 66); "that the Union had a right to see all of the video tape and all of the cash register receipts . . ." (Tr. 79-80); and counsel for Respondent at the hearing stated, ". . . I believe there is a basis to the union's position that they would have the right to review the video tape covering transactions that occurred previous to and after in order to satisfy themselves that there was nothing unusual or particularly misrepresentative of the particular transaction involved." (Tr. 112-113). Once it is established that data, which in this case obviously was "reasonably available," is necessary to enable the Union to process the employee's grievance, and as shown this was readily admitted by Respondent, I do not agree with Respondent that the Union must show further necessity for a copy of the data which has already been shown to be "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining" (Section 14(b)(4)(B)), "collective bargaining", of course, encompassing the processing of grievances). When a request for data covers various different items, production of the requested items for examination by the Union may be sufficient initial compliance with the "furnish" requirement of Section 14(b)(4); and a request for copies of some, or all, of the items "furnished" may be subject to a showing that they are "necessary" since there has not been a determination that any particular item is necessary for the purposes of Section 14(b)(4). But when, as here, the video tape has been shown to be, and conceded to be, necessary for the purposes of Section 14(b)(4), no further showing of necessity may be required. In any event, General Counsel in this case has shown the particular need of the Union for a copy of the video tape "showing alleged under ring." In truth, Respondent's actual concern relates to whether it should have to make a copy of a video tape as it conceded at the hearing that if this had been a written document, "Under the present state of law, they would be entitled to have copies of those documents without cost." (Tr. 108). Since this is Respondent's second defense, it will be addressed hereinafter. If Respondent had provided the Union with a copy of the segment of the video tape which showed the "alleged under ring," i.e. the approximately 30 second segment shown to the Union on August 16, 1985, I would have found no violation since the Union's requests easily could have been construed to have asked for no more; but, from the record it is clear that the Union asked for a copy of the entire video tape which showed the alleged under ring; that Respondent so understood the Union's request; and Counsel for Respondent conceded that the Union had ". . . the right to review the video tape covering transactions that occurred previous to and after . . ." (Tr. 112-113). Indeed, Respondent has made no distinction between providing a copy of a segment of the video tape and the entire video tape. 2. All video tapes on all employees. The Union's request of August 23, 1985, was for: "-1. All vidio (sic) films on all employees for the last two months, to include the months of July and August, 1985" (G.C. Exh. 10). As to this request, Mr. Miller responded, in relevant part, ". . . Management is unconvinced that those tapes would constitute relevant data in this matter . . ." (G.C. Exh. 13). With regard to the August 23, 1985, request, Respondent clearly questioned the relevancy of additional tapes and, effectively, asked for justification to which the Union failed to respond and for this reason alone, Respondent's refusal to furnish the tapes requested on August 23, 1985, was not an unfair labor practice. Internal Revenue Service, Buffalo District, Buffalo, New York, supra; Department of Health and Human Services, Social Security Administration and Social Security Administration, Field Operations, New York Region, supra. Moreover, nothing in the record shows any relevancy or materiality of such additional tapes and/or that such data is necessary for the purposes of Section 14(b)(4)(B). To the contrary, although Ms. Bundy was taped for fourteen days and possibly other employees would have used the same cash register, e.g., during Ms. Bundy's absence on breaks, etc., when the surveillance specialists left Fort Carson they took all tapes with them except the one tape, for July 3, 1985, on which the alleged under ring was shown. Not only was no portion of any other tape used or relied upon in any manner by management in regard to the proposed disciplinary action taken against Ms. Bundy, but no representative of management ever saw any portion of any of the other thirteen tapes. Accordingly, I find that such data was not necessary and Respondent's failure to furnish such data was not an unfair labor practice. Respondent's second defense is stated as follows: "It is not consistent with effective and efficient government to require an activity to provide a file copy of a video tape to the unions for the purposes of a 'private showing' where access to the original video tape is made available to the union. The Union's basis for establishing the necessity required by Section 7114(b)(4)(B) is a need for a 'private showing.' There is no question that such a 'private showing' is of value to the Union. The question presented here is whether the Activity should bear the costs of providing a copy of the video tape for the Union's private showing.' Where the Activity has provided the Union access to the original video tape, having otherwise not interfered with all access necessary to the Union, it is not consistent with an 'efficient' government, as required by Section 7101(b), to require government agencies and activities to pay the cost of this 'private showing.' "There is no obligation under the statute or legislative history to provide, free of charge, any data to the Union. The Respondent is aware of Authority precedent prohibiting the release of data conditioned upon the payment of a reasonable fee. The Respondent makes this assertion to preserve its rights to raise the issue upon appeal." (Respondent's Brief, pp. 2-3). Respondent's "private showing" argument would be no different whether the data in question was a written document or a video tape. There is at least the same need for a copy of written document, i.e., for a 'private showing', as for a copy of a video tape, and perhaps an even greater need for a copy of a video tape since it would be far more difficult to make notations of all that was seen than to make notes of what appeared in a written document. The right to inspect and copy is well established, e.g., Rules 26(b) and 34 of the Federal Rules of Civil Procedure; /6/ by decision under the National Labor Relations Act, The Cincinnati Steel Castings Company, 86 NLRB 592 (1949); /7/ is not questioned here; nor may it be, inasmuch as the Statute requires that, "(b) The duty of an agency . . . shall include the obligation -- . . . "(4) . . . to furnish to the exclusive representative involved . . . data . . ." (5 U.S.C. Section 7114(b)(4). Respondent made at least the segment of the video tape showing the "alleged under ring by Nancy Bundy" available to the Union for viewing and offered to "create a copy of the tape provided the Union would be willing to reimburse Management for any expense incurred." Thus, as Respondent recognizes the "bottom line" is whether Respondent failed to comply with the requirements of Sections 14(b)(4) and thereby violated Sections 16(a)(1),(5) and (8) of the Statute by failing and refusing to provide the Union a copy of the videotape without cost. In Veterans Administration Regional Office, Denver, Colorado, 10 FLRA No. 78, 10 FLRA 453 (1982), the Authority held that the agency, or activity, violated its duty to negotiate in good faith, and failed to comply with the requirements of Section 14(b)(4), in violation of Sections 16(a)(1), (5) and (8) of the Statute, by requiring payment for a copy of necessary data requested by the union in order to fulfill its representational role in connection with an employee's grievance. Judge Arrigo, in a well reasoned decision and in reliance upon: a) the silence of the Statute, as to the conditions under which the information is to be furnished, including whether a charge may be exacted; b) that the legislative history does not address the matter of a charge for data; c) that no counterpart to Section 14(b)(4) existed under the Executive Order and the question of requiring a fee for providing such information had not resolved under the Order; and d) decisions by the National Labor Relations Board which do not require the employer to bear the burden of the cost of duplicating material (10 FLRA at 466-467), had concluded that under the Statute the respondent ". . . was not obligated to provide the Union copies of the documents in question without charge." (10 FLRA at 467). The Authority reversed and stated, "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. (footnote omitted). 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. (footnote omitted). 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 (footnote omitted). 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 requests 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 interpratation would render that section merely duplicative of rights already established under the Freedom of Information Act (FOIA) . . . "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 (footnote omitted) in order to fulfill its representational role in connection with an employee's grievance. (footnote omitted). (10 FLRA 456-458). Veterans Administration Regional Office, Denver, Colorado, supra, has been consistently followed; however, I am aware that the Authority has stated, for example in Bureau of Alcohol, Tobacco and Firarms, National Office, Washington, D.C., 18 FLRA No. 74, 18 FLRA 611, 613 (1985); U.S. Equal Employment Opportunity Commission, Washington D.C., 20 FLRA No. 37, 20 FLRA 357, 358 (1985), that: "The duty to supply data under section 7114(b)(4) thus turns upon the nature of the request and the circumstances in each particular case." Although such statement did not relate to furnishing a copy of data without charge to the exclusive representative, I have no doubt that in a proper case the difficulty and cost of producing a copy, together with the circumstances of use and access to the original data afforded would be proper considerations; but that is not presented in this case. Respondent permitted the Union to view only a short 30 second segment of the video tape and only in the presence of various management officials, which prevented detailed and careful analysis; inhibited frank and open discussion by Union representatives; afforded no opportunity for the Union to show the video tape to other necessary representatives and employees to evaluate the procedures shown; to correlate visual transaction with cash register tape entries; or, indeed, to evaluate the presumed identity of Ms. Bundy as the person on the video tape. Moreover, the only cost shown was the estimated $4.00 to $6.00 cost for a video tape cassette. Although the VCRs would have to be started, once started the process is automatic. Further, the video tape cassette, when no longer required, is fully reusable and could be returned for further use. Respondent does not deny its capacity, whether by its surveillance specialists or by use of VCRs at the Exchange, to produce a copy of the video tape -- indeed, Respondent stated, ". . . we would create a copy of the tape provided the Union would be willing to reimburse Management for any expense incurred." Respondent conceded the need of the Union to examine the cash register tape used on the day of the alleged under ring and, eventually, furnished a copy of a short segment of the cash register tape which concerned the particular transaction. The record does show that to copy the entire cash register tape would be difficult and the copy of poor quality. The record devoted scant attention to either the asserted need or desire of the Union for a copy of the entire cash register tape for the day in question. Accordingly, I shall order the entire cash register tape for the day in question to be made available to the Union for its examination and, further, that a copy of such portions as requested by the Union be furnished. Accordingly, having found that Respondent failed to comply with the requirements of Section 14(b)(4) of the Statute and thereby violated Sections 16(a)(1), (5) and (8) of the Statute by its refusal to furnish the Union a copy of necessary data requested in order to fulfill its representational role in connection with an employee's grievance, I recommend that the Authority adopt the following: ORDER Pursuant to Section 18(a)(7) of the Statute, 5 U.S.C. Section 7118(a)(7), and Section 2423.29 of the Regulations, 5 C.F.R. Section 2423.29, the Authority hereby orders that Army and Air Force Exchange Service, Dallas, Texas, shall: 1. Cease and desist from: (a) Failing and refusing to provide, without charge to the American Federation of Government Employees, AFL-CIO, Local 1345 (hereinafter referred to as "Local 1345"), the employees' exclusive representative, a copy of the data requested by Local 1345 relating to disciplinary action against employee Nancy Bundy. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute: (a) Provide, without charge, to Local 1345 a copy of the video tape for July 3, 1985, the day on which the alleged under ring by Nancy Bundy occurred. (b) Make available for inspection by Local 1345 the entire cash register tape for the cash register used by Nancy Bundy on the day of the alleged under ring by Nancy Bundy and provide, without charge, to Local 1345 a copy of such portions of said cash register tape as Local 1345 may designate. (c) Post at its facilities at the Army and Air Force Exchange Service, Fort Carson, 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 an appropriate official of the Army and Air Force Exchange Service, Fort Carson, Colorado, 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 appropriate official shall take reasonable steps to insure that such Notices are not altered, defaced, or covered by any other material. (d) Pursuant to Section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of Region VII, Federal Labor Relations Authority, Suite 310, 535 16th Street, Denver, Colorado 80202, in writing, within 30 days of this Order, as to what steps have been taken to comply herewith. IT IS FURTHER ORDERED that that portion of the Complaint which relates to Local 1345's request for data of August 23, 1985, be, and the same is hereby, dismissed. /s/ WILLIAM B. DEVANEY Administrative Law Judge Dated: May 15, 1986 Washington, D.C. --------------- FOOTNOTES$ --------------- (1) For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the statutory reference, e.g. Section 7114(b)(4) will be referred to, simply, as "Section 14(b)(4)." (2) General Counsel filed a Motion to Correct Transcript of the Proceedings; Respondent made no objection; and having found the requested corrections entirely proper. General Counsel's motion is hereby granted and the transcript is hereby corrected as more fully set forth in the Appendix hereto. (3) It would appear that the video tape was shown to the Union on a second occasion when the tape was released, at Mr. Cupples request, to Ms. Richards to "show it again." (Tr. 97, 98). (4) Inasmuch as the Union renewed its request on August 19, 1985, I find it unnecessary to decide whether Respondent did, or did not, receive the request of July 24, 1985. (5) The words "in order" were added, following "necessary" and before "to" in the requests of August 19, and 23, 1985. (6) Rule 34 provides, in part, that, "(a) Scope. Any party may . . . inspect and copy, any designated documents (including writings, drawings, graphs, charts, photographs, phono-records, and other data complications from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form) . . . " Copying is by the party requesting the data and at that party's cost; but such cost may be recovered if that party prevails and is awarded costs. (7) The LMRA contains no provision comparable to Section 14(b)(4); but the NLRB does not require an employee to furnish such information without cost, absent some evidence of bad faith. Abercrombie & Fitch Co., 206 NLRB 464 (1973). (8) The Judge's discussion of private sector cases in reaching a contrary conclusion is deemed inopposite, noting particularly the absence of any provisions similar to section 7114(b)(4) in the Labor Management Relations Act (LMRA) and the difference between federal and private sector labor Management relations recognized by Congress. See section 7101(b) of the Statute. 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, without charge to the American Federation of Government Employees, AFL-CIO, Local 1345 (hereinafter "Local 1345"), our employees' exclusive representative, a copy of the requested data relating to disciplinary action against employee Nancy Bundy. 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 provide, without charge, to Local 1345 a copy of the video tape for July 3, 1985, the day on which the alleged under ring by Nancy Bundy occurred. WE WILL make available for inspection by Local 1345 the entire cash register tape for the cash register used by Nancy Bundy on the day of the alleged under ring by Nancy Bundy, and we will provide, without charge, to Local 1345 a copy of such portions of said cash register tape as Local 1345 may designate. (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 7, whose address is: 535 - 16th Street, Suite 310, Denver, Colorado 80202 and whose telephone number is: (303) 837-5224.