10:0251(47)CA - Customs Service, Region VII, Los Angeles, CA and NTEU -- 1982 FLRAdec CA

 10 FLRA No. 47
 
 U.S. CUSTOMS SERVICE, REGION VII
 LOS ANGELES, CALIFORNIA
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case No. 8-CA-240
 
                            DECISION AND ORDER
 
    THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
 DIRECTOR'S "ORDER TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS
 AUTHORITY" IN ACCORDANCE WITH SECTION 2429.1(A) OF THE AUTHORITY'S RULES
 AND REGULATIONS.
 
    UPON CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE PARTIES'
 STIPULATION OF FACTS, ACCOMPANYING EXHIBITS, AND THE BRIEFS SUBMITTED BY
 THE RESPONDENT AND THE GENERAL COUNSEL, THE AUTHORITY FINDS:
 
    AN EMPLOYEE IN THE BARGAINING UNIT EXCLUSIVELY REPRESENTED BY THE
 NATIONAL TREASURY EMPLOYEES UNION (THE UNION) FILED A GRIEVANCE WITH THE
 RESPONDENT UNDER THE PARTIES' NEGOTIATED AGREEMENT WHICH ALLEGED THAT HE
 HAD BEEN DENIED A PROMOTION IMPROPERLY BECAUSE OF HIS PHYSICAL HANDICAP,
 A NON-MERIT FACTOR, AND DESIGNATED THE UNION AS HIS REPRESENTATIVE.  IN
 CONNECTION WITH THE GRIEVANCE, CERTAIN INFORMATION WAS REQUESTED
 CONCERNING DOCUMENTS USED IN THE PROMOTION PROCESS BY THE RANKING PANEL
 AND THE SELECTING OFFICIAL.  AT THE FIRST TWO STEPS OF THE NEGOTIATED
 GRIEVANCE PROCEDURE, THE EMPLOYEE'S GRIEVANCE WAS DENIED ON ITS MERITS.
 IN ADDITION, THE REQUESTED DOCUMENTS WERE SPECIFICALLY DENIED AT THE
 SECOND STEP BY THE RESPONDENT'S REPRESENTATIVE ON THE BASIS THAT HE
 COULD NOT SEE "HOW COPIES OF ALL THE DOCUMENTATION INVOLVED IN THIS
 PARTICULAR PROMOTION ACTION WOULD ESTABLISH ANYTHING CONSTRUCTIVE
 TOWARD
 RESOLUTION OF THIS GRIEVANCE .  . . ." AT THE THIRD STEP OF THE PARTIES'
 NEGOTIATED PROCEDURE, THE GRIEVANCE WAS DENIED ON THE GROUND THAT IT
 CONCERNED A MATTER FOR WHICH A STATUTORY APPEAL PROCEDURE EXISTED AND
 THEREFORE WAS NOT GRIEVABLE UNDER THE NEGOTIATED AGREEMENT.  THE UNION
 APPEALED THAT DECISION TO THE FOURTH STEP OF THE NEGOTIATED GRIEVANCE
 PROCEDURE AND REQUESTED A MEETING AS PROVIDED FOR THEREUNDER.
 SUBSEQUENTLY, THE UNION AGAIN REQUESTED THE FOURTH STEP MEETING AND THE
 PROMOTION INFORMATION CONCERNING THE GRIEVANCE.  HOWEVER, WITHOUT
 COMPLYING WITH EITHER REQUEST, THE RESPONDENT REJECTED THE GRIEVANCE AT
 THE FOURTH STEP AS BEING NONGRIEVABLE UNDER THE NEGOTIATED AGREEMENT.
 
    THE AMENDED COMPLAINT ALLEGES, IN ESSENCE, THAT THE RESPONDENT
 VIOLATED SECTION 7116(A)(1), (5) AND (8) OF THE STATUTE /1/ BY REFUSING
 TO FURNISH NECESSARY AND RELEVANT INFORMATION REQUESTED BY THE UNION IN
 CONNECTION WITH THE PROCESSING OF AN EMPLOYEE'S GRIEVANCE AS REQUIRED BY
 SECTION 7116(B)(4) OF THE STATUTE, /2/ AND VIOLATED SECTION 7116(A)(1)
 AND (5) BY REFUSING TO HOLD THE FOURTH STEP MEETING WITH THE GRIEVANT
 AND HIS EXCLUSIVE REPRESENTATIVE AS REQUIRED BY THE PARTIES' COLLECTIVE
 BARGAINING AGREEMENT.
 
    WITH RESPECT TO THE RESPONDENT'S FAILURE AND REFUSAL TO FURNISH THE
 REQUESTED INFORMATION TO THE UNION, THE AUTHORITY HAS PREVIOUSLY HELD
 THAT SECTION 7114(B)(4) OF THE STATUTE REQUIRES MANAGEMENT TO FURNISH A
 UNION WITH INFORMATION WHICH WOULD ENABLE THE UNION TO EFFECTIVELY CARRY
 OUT ITS REPRESENTATIONAL OBLIGATION DURING THE PROCESSING OF AN EMPLOYEE
 GRIEVANCE, AND THAT MANAGEMENT VIOLATES SECTION 7116(A)(1) AND (5) OF
 THE STATUTE IF IT REFUSES TO DO SO.  /3/ IN THIS CASE, THE AUTHORITY
 FINDS THAT THE RESPONDENT'S CONCEDED REFUSAL TO FURNISH THE UNION WITH
 NECESSARY AND RELEVANT INFORMATION CONCERNING THE UNIT EMPLOYEE'S
 GRIEVANCE OVER HIS NONSELECTION FOR PROMOTION UNDER THE NEGOTIATED MERIT
 PROMOTION PROCEDURES CONSTITUTED A VIOLATION OF SECTION 7116(A)(1) AND
 (5) OF THE STATUTE.  IN SO CONCLUDING, THE AUTHORITY REJECTS THE
 RESPONDENT'S CONTENTION THAT IT HAD NO DUTY TO FURNISH THE REQUESTED
 INFORMATION BECAUSE THE EMPLOYEE'S GRIEVANCE INVOLVED A MATTER WHICH WAS
 NONGRIEVABLE UNDER THE PARTIES' NEGOTIATED AGREEMENT.  THUS, WITHOUT
 PASSING UPON THE MERITS OF THE RESPONDENT'S CONTENTION, /4/ THE
 AUTHORITY NOTES THAT SECTION 7114(B)(4) OF THE STATUTE BROADLY REQUIRES
 MANAGEMENT TO FURNISH THE EXCLUSIVE REPRESENTATIVE WITH REQUESTED
 INFORMATION, "TO THE EXTENT NOT PROHIBITED BY LAW," WHICH IS "REASONABLY
 AVAILABLE AND NECESSARY FOR FULL AND PROPER DISCUSSION, UNDERSTANDING,
 AND NEGOTIATION OF SUBJECTS WITHIN THE SCOPE OF COLLECTIVE BARGAINING,"
 AND THAT THE INFORMATION REQUESTED HEREIN FULLY MET THE FOREGOING
 REQUIREMENTS.
 
    HOWEVER, THE AUTHORITY FINDS THAT THE RESPONDENT DID NOT VIOLATE
 SECTION 7116(A)(1) AND (5) OF THE STATUTE, AS ALLEGED, BY FAILING TO
 HOLD THE REQUESTED MEETING UNDER THE FOURTH STEP OF THE NEGOTIATED
 GRIEVANCE PROCEDURE BEFORE REJECTING THE GRIEVANCE AS BEING
 NONGRIEVABLE.  IN THIS REGARD, THE AUTHORITY NOTES PARTICULARLY THAT THE
 RESPONDENT DID REPLY AT THE FOURTH STEP AND MAINTAINED ITS POSITION THAT
 THE SUBJECT MATTER OF THE GRIEVANCE WAS NONGRIEVABLE UNDER THE PARTIES'
 NEGOTIATED AGREEMENT.  IT IS ALSO NOTED THAT THE RECORD DOES NOT
 ESTABLISH THAT THE UNION THEREAFTER REQUESTED ARBITRATION OR THAT THE
 RESPONDENT EVER REFUSED TO PROCEED TO ARBITRATION.  THUS, THE AUTHORITY
 CONCLUDES THAT THE SINGLE INSTANCE OF THE RESPONDENT'S REFUSAL TO HONOR
 A REQUEST FOR A FOURTH STEP MEETING IN THE CIRCUMSTANCES OF THIS CASE
 DID NOT CONSTITUTE A REJECTION OF THE COLLECTIVE BARGAINING AGREEMENT IN
 VIOLATION OF SECTION 7116(A)(1) AND (5) OF THE STATUTE.  SEE
 KAISERSLAUTERN AMERICAN HIGH SCHOOL, DEPARTMENT OF DEFENSE DEPENDENTS
 SCHOOLS, GERMANY NORTH REGION, 9 FLRA NO. 28 (1982).  /5/ THEREFORE,
 THAT PORTION OF THE COMPLAINT SHALL BE DISMISSED.
 
                                   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 U. S.  CUSTOMS SERVICE, REGION VII, LOS ANGELES,
 CALIFORNIA, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) FAILING AND REFUSING TO PROVIDE THE NATIONAL TREASURY EMPLOYEES
 UNION, THE
 
    EMPLOYEES' EXCLUSIVE REPRESENTATIVE, WITH ALL NECESSARY AND RELEVANT
 DOCUMENTS AND MATERIALS
 
    REQUESTED BY THE NATIONAL TREASURY EMPLOYEES UNION IN CONNECTION WITH
 THE PROCESSING OF A
 
    GRIEVANCE FILED BY A UNIT EMPLOYEE, BOBBY G. LOIBL, REGARDING THE
 SELECTION PROCESS FOR A
 
    SENIOR CUSTOMS INSPECTOR, GS-11-VII-79-58-JM.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
 COERCING EMPLOYEES IN
 
    THE EXERCISE OF THEIR RIGHTS ASSURED BY THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS
 
    STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE STATUTE:
 
    (A) UPON REQUEST, PROVIDE THE NATIONAL TREASURY EMPLOYEES UNION, THE
 EMPLOYEES' EXCLUSIVE
 
    REPRESENTATIVE, WITH ALL NECESSARY AND RELEVANT DOCUMENTS AND
 MATERIALS REQUESTED BY THE
 
    NATIONAL TREASURY EMPLOYEES UNION IN CONNECTION WITH THE GRIEVANCE
 FILED BY A UNIT EMPLOYEE,
 
    BOBBY G. LOIBL, REGARDING THE SELECTION PROCESS FOR SENIOR CUSTOMS
 INSPECTOR,
 
    GS-11-VII-79-58-JM.
 
    (B) POST AT ITS FACILITIES AT THE U.S. CUSTOMS SERVICE, REGION VII,
 LOS ANGELES,
 
    CALIFORNIA, COPIES OF THE ATTACHED NOTICE ON FORMS TO BE FURNISHED BY
 THE FEDERAL LABOR
 
    RELATIONS AUTHORITY.  UPON RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED
 BY THE DIRECTOR OF THE
 
    U.S. CUSTOMS SERVIC