18:0400(53)CA - Treasury, Customs Service, Region IV, Miami, FL and NTEU -- 1985 FLRAdec CA
[ v18 p400 ]
The decision of the Authority follows:
18 FLRA No. 53 DEPARTMENT OF THE TREASURY UNITED STATES CUSTOMS SERVICE REGION IV, MIAMI, FLORIDA Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party Case No. 4-CA-30480 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 in this case, including the stipulation of facts, accompanying exhibits, and contentions of the parties, the Authority finds: The complaint essentially alleges that the Respondent violated section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) /1/ by failing and refusing to furnish, as required by section 7114(b)(4) of the Statute, /2/ information requested by the Union, the exclusive representative of its employees, in connection with the Union's processing of two grievances. The grievances seeking reinstatement were filed when the Respondent discharged two employees because they had been involved in an incident in which there was destruction of government property through the improper use of firearms. The Union, in connection with its representation of the grievants, as a possible argument in favor of mitigation of the discipline imposed, requested information concerning the investigation and disposition of two traffic accidents involving an employee who had driven a government vehicle while intoxicated. The Union believed that this employee's accidents had led to property damage, injury and loss of life, and that this employee had received a lesser penalty (suspension and/or reduction in grade). Respondent denied this request and asserted, in its response letter, that the information requested was not relevant to the disposition of the employees' grievances, since the accidents involved an employee who was excluded from the bargaining unit and worked for an organization not administratively subordinate to the Regional Commissioner, the official under whose authority the grievants herein had been disciplined. These assertions regarding the non-bargaining unit status and differing lines of authority concerning discipline of the individual involved in the traffic accidents were not rebutted by the General Counsel. The stipulated record establishes that the two grievants are U.S. Customs pilots assigned to Region IV of the Customs Service located in Miami, Florida, and that the U.S. Customs employee involved in the information request was a special agent of the Office of Investigations assigned to the Tampa, Florida area. In September 1977 and July 1979, this employee was involved in traffic accidents in an official vehicle after consuming alcohol while on duty. At the time of the accidents, which involved considerable property damage and personal injury, the employee was intoxicated under the standard established by law. Discipline for such offenses included suspensions and a reduction in grade. The parties stipulated that the data requested by the Union concerning the above incidents is normally maintained by the U.S. Customs Service, is reasonably available, and does not constitute advice, guidance, training, or counseling for management officials or supervisors relating to collective bargaining. Under section 7114(b)(4) of the Statute, an agency has a duty to furnish, upon request by an exclusive representative and to the extent not prohibited by law, data which, among other things, is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining. Such data must be necessary to enable the union to fulfill its representational responsibilities, including the effective evaluation and processing of grievances. /3/ However, a union's mere assertion that it needs data to process a grievance does not automatically oblige the agency to supply such data. /4/ 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. Therefore, a threshold issue is whether the data requested by the Union is necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining, including specifically the Union's evaluation and processing of the grievances involved herein. In this regard, the Authority has held that data sought by the Union in its representation of a unit employee undergoing discipline which concerns disciplinary action taken by the employer involving infractions by other employees of a similar nature is data necessary for the Union to fulfill its representational obligation. See, e.g., Internal Revenue Service, Western Region, San Francisco, California, 9 FLRA 480 (1982). Based upon the facts set forth in the stipulated record, the Authority concludes that the General Counsel has failed to meet its burden of proving, by a preponderance of the evidence, that the information requested by the Union in seeking to mitigate the discipline of the grievants was "necessary" within the meaning of section 7114(b)(4) of the Statute. In this regard, the Authority notes that the requested information concerned the discipline of a non-bargaining unit employee, that the lines of authority responsible for taking disciplinary action against the non-unit employee and for reviewing such action were different than for the grievants herein, and that the incidents involving the non-unit employee involved facts and events dissimilar to those involving the grievants. /5/ Thus, the General Counsel has failed to establish that the information requested involving the non-bargaining unit employee was "necessary" within the meaning of section 7114(b)(4) of the Statute to enable the Union to represent the two unit employee grievants herein. /6/ Therefore, the Respondent did not fail to comply with section 7114(b)(4) in violation of section 7116(a)(1), (5) and (8) of the Statute when it refused to provide the information concerning the non-unit employee, and accordingly the complaint shall be dismissed. /7/ ORDER IT IS ORDERED that the complaint in Case No. 4-CA-30480 be, and it hereby is, dismissed in its entirety. Issued, Washington, D.C., June 12, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Section 7116(a)(1), (5) and (8) provides: Sec. 7116. Unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency-- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; * * * * (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter; * * * * (8) to otherwise fail or refuse to comply with any provision of this chapter. /2/ Section 7114(b)(4) provides: (b) the duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation-- * * * * (4) in the case of an agency, to furnish to the exclusive representative involved, or its authorized representative, upon request and, to the extent not prohibited by law, data-- (A) which is normally maintained by the agency in the regular course of business; (B) which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and (C) which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining(.) /3/ U.S. Customs Service, Region VII, Los Angeles, California, 10 FLRA 251, 253 (1982); Veterans Administration Regional Office, Denver, Colorado, 7 FLRA 629 (1982). /4/ See, e.g., United States Environmental Protection Agency, Health Effects Research Laboratory, Cincinnati, Ohio, 16 FLRA No. 16 (1984); Internal Revenue Service, Buffalo District, Buffalo, New York, 7 FLRA 65 (1982). /5/ See United States Environmental Protection Agency, Health Effects Research Laboratory, Cincinnati, Ohio, supra note 4, at p. 3, wherein the Authority noted that as non-unit employees often have different functions and perform different duties from those of unit employees they would not be viewed as similarly situated and agencies would be governed by different considerations in taking administrative action with regard to such employees. /6/ The cases relied upon by the General Counsel concern requested information pertaining to similar offenses committed by bargaining unit employees and are clearly distinguishable from the present case, where, as noted above, the requested information involved discipline taken against a non-bargaining unit employee for an offense substantially different from the offenses committed by the unit employee grievants herein. /7/ In view of the disposition reached herein, the Authority does not find it necessary to determine whether in fact the aggrieved party first raised the issue of the complaint in the negotiated grievance procedure within the meaning of section 7116(d) of the Statute. See Internal Revenue Service, Chicago, Illinois, 3 FLRA 478 (1980).