18:0825(99)CA - FDA, Region VII, Kansas City, MO and NTEU -- 1985 FLRAdec CA



[ v18 p825 ]
18:0825(99)CA
The decision of the Authority follows:


 18 FLRA No. 99
 
 U.S. FOOD AND DRUG ADMINISTRATION 
 REGION VII, 
 KANSAS CITY, MISSOURI 
 Respondent
 
 and 
 
 NATIONAL TREASURY EMPLOYEES UNION 
 Charging Party
 
                                            Case No. 7-CA-30133
 
                            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
 parties' stipulation of facts, accompanying exhibits, and the parties'
 contentions, the Authority finds:  The complaint alleges that the
 Respondent, U.S. Food and Drug Administration, Region VII, Kansas City,
 Labor-Management Relations Statute (the Statute) by failing and refusing
 to furnish to the National Treasury Employees Union (NTEU), without
 charge, data requested by it pursuant to section 7114(b)(4) of the
 Statute.  /1/
 
    NTEU is the exclusive representative of Respondent's employees in a
 unit which includes all professional and non-professional General
 Schedule and Wage Grade employees employed by the regional office and
 field offices of the U.S. Food and Drug Administration, Region VII,
 Kansas City, Missouri, excluding management officials, supervisors and
 employees described in section 7112(b)(2), (3), (4), (6) and (7) of the
 Statute.  The Respondent is one of 10 U.S. Food and Drug Administration
 (FDA) regional offices.  The FDA is also made up of 22 district offices
 and 3 national center/regional laboratories.  The Respondent's Regional
 Director reports to the FDA Director for Regional Operations in FDA
 Headquarters, located at Rockville, Maryland.  The FDA is one of five
 operating agencies which, together with the Office of the Assistant
 Secretary for Health, comprise the Public Health Service (PHS), which in
 turn is a primary national subdivision of the Department of Health and
 Human Services (HHS).  There is no labor relations office at FDA
 Headquarters servicing the regional and district offices.  Instead, the
 servicing personnel and labor relations office for the Respondent is
 located in the HHS Region VII office in Kansas City, Missouri.  Further,
 the labor relations staff of the PHS in Rockville, Maryland, is
 available to assist management officials in FDA regional and district
 offices.
 
    The record shows that in the summer of 1982, Respondent, FDA Region
 VII, informed NTEU that it was dissatisfied with the dress and
 appearance of certain employees and would insist on adherence to a dress
 code embodied in various directives issued by it and FDA Headquarters
 since 1972.  On August 11, 1982, NTEU submitted to the Respondent a
 proposed dress code.  The Respondent, on October 22, 1982, agreed to
 negotiate with NTEU over the subject of a dress code for its employees.
 On November 8, 1982, NTEU proposed that negotiating sessions commence
 later that month.  Also, on that date, NTEU submitted a written request
 to the Respondent, pursuant to section 7114(b)(4) of the Statute, for
 the following documents:
 
          1) Copies of all local directives issued by local management in
       any field installation implementing FMD 84 dated 12/8/78 currently
       being followed whether or not is issued prior to FMD 84.  /2/
 
          2) Copies of any portion which relates to dress code of a
       negotiated contract between bargaining unit employees represented
       by an exclusive bargaining agent and local management in any field
       installation.
 
    In a labor-management meeting between Respondent and NTEU prior to
 November 17, 1982, NTEU told Respondent that it sought the above-noted
 data to assist it in drafting reasonable negotiating proposals on
 employee appearance and attire that would be consistent with directives
 or agreements affecting employees at other FDA facilities.  On November
 17, 1982, Respondent provided the NTEU with copies of all local
 directives that it (FDA, Region VII) had issued regarding employee dress
 and personal appearance, and a copy of FMD 84, dated January 2, 1981.
 In a letter to the Union accompanying these documents, Respondent
 refused to provide copies of any directives or portions of collective
 bargaining agreements concerning employee personal appearance and attire
 applicable to FDA facilities other than those in FDA Region VII, stating
 that such information "is neither relevant nor necessary to your
 expressed purpose."
 
    In a letter dated November 22, 1982, NTEU protested Respondent's
 refusal to furnish the information it had requested under section
 7114(b)(4), and requested that the data be furnished to NTEU under the
 Freedom of Information Act (FOIA) without charge.  By letter dated
 December 14, 1982, Respondent informed NTEU that its request for data in
 the November 22, 1982 letter was being processed under FOIA.  Respondent
 stated therein that "(s)ince you have advised me that you do not intend
 to start negotiations until you have received and reviewed this
 information, I think it is appropriate that management avail themselves
 of the same opportunity . . . .  Management does not wish to impose a
 dress code on employees which is more stringent than that required by
 the agency in general."
 
    Negotiations between the parties on personal appearance and attire
 proceeded, although NTEU had not received the requested data other than
 that pertaining to Region VII.  An agreement was concluded and signed on
 February 25, 1983.  On March 17, 1983, pursuant to its FOIA request,
 NTEU received the data that it had sought from the Respondent in
 November 1982.  The documents which were provided to NTEU pursuant to
 the FOIA request were not, and are not normally, maintained in the
 offices of the Respondent.  NTEU was billed $72.57 for this data and its
 request for a waiver of these fees has been denied by FDA.
 
    NTEU and the General Counsel contend that the information requested
 by NTEU pursuant to section 7114(b)(4) of the Statute was necessary and
 relevant to the parties' negotiations on employee personal appearance
 and attire.  They assert that NTEU's intention was to use this
 information to assist it in drafting reasonable proposals on a clearly
 negotiable subject, and to ensure that its proposals were consistent
 with directives or agreements affecting employees at other FDA
 facilities.  The General Counsel argues that a "liberal, discovery-type"
 standard similar to that in the private sector should be used.  A union,
 it argues, need only be "acting upon the probability that the desired
 information (is) relevant, and that it would be of use to the union in
 carrying out its statutory duties and responsibilities." The General
 Counsel argues that whether a request for data satisfies this standard
 depends on the circumstances of each case, and that the circumstances
 here satisfy this standard.  The General Counsel also notes Respondent's
 statement in its December 14, 1982 letter that "(m)anagement does not
 wish to impose a dress code on employees which is more stringent than
 that required by the agency in general." The General Counsel argues that
 since Respondent planned to use the information to limit the dress
 requirements to something not more stringent than the agency in general,
 NTEU had the right to test the accuracy of that statement which it could
 not do without the requested information.  Further, NTEU and the General
 Counsel argue that the duty of the Respondent to furnish the information
 was not eliminated because the information was not maintained in the
 Region VII office.  They argue that it does not matter whether the
 information was maintained at the regional office, but only that it was
 maintained within the "agency," i.e. FDA, and that such a request should
 not be limited to the level of exclusive recognition.  Finally, they
 argue that the information was reasonably available within the meaning
 of the Statute.
 
    The Respondent contends that it was not required to furnish the
 information requested by NTEU because such information was not normally
 maintained by it in the regular course of business, was not reasonably
 available, and was not necessary for full and proper discussion,
 understanding, and negotiation of subjects within the scope of
 collective bargaining, within the meaning of section 7114(b)(4) of the
 Statute.  In this latter regard, the Respondent points out that each
 region or district office has autonomy sufficient to develop local
 policies unique to its own needs and customs under FMD 84 which allows
 for the negotiation of agreements in keeping with both local customs and
 the professional appearance expected of employees.  Thus, the Respondent
 maintains that it was and is possible for the parties to negotiate fully
 on the subject without reference to practices or agreements on the
 subject existent in other parts of the country.
 
    Under section 7114(b)(4) of the Statute, an agency has a duty to
 furnish the exclusive representative, upon request, and to the extent
 not prohibited by law, data which is normally maintained by the agency
 in the regular course of business;  reasonably available and necessary
 for full and proper discussion, understanding, and negotiation of
 subjects within the scope of collective bargaining;  and which does not
 constitute guidance, advice, counsel, or training provided for
 management officials or supervisors relating to collective bargaining.
 If, in an unfair labor practice proceeding, it is alleged that an agency
 failed to meet the duty imposed upon it by section 7114(b)(4), the
 General Counsel has the burden of establishing that the data sought by
 the Union met the requirements specified in the Statute.  See, e.g.,
 Director of Administration, Headquarters, U.S. Air Force, 6 FLRA 110,
 122 (1981).  In this case, the Authority concludes that the General
 Counsel has failed to establish that the data sought by the Union met
 the statutory requirements.  In this regard, the parties stipulated that
 the requested documents at issue (i.e., those directives issued by FDA
 facilities other than Region VII) were not normally maintained in the
 offices of the Respondent.  The evidence shows that such data was
 maintained by other organizational elements of the FDA not subject to
 the Respondent's control.  Further, the General Counsel has not
 established that such data, maintained outside the Respondent's control,
 was reasonably available.  Thus, while the record contains no evidence
 that management was dilatory in seeking to gather and provide the
 requested data to NTEU pursuant to the FOIA request dated November 22,
 1982, it took almost four months, until March 17, 1983 for FDA to
 provide NTEU with the requested documents, by which time the parties had
 signed an agreement on personal appearance and attire.
 
    Finally, the General Counsel has not established that the data sought
 concerned practices and negotiated agreements pertaining to employees
 outside the bargaining unit, who are not necessarily similarly situated
 employees.  Department of the Air Force, Scott Air Force Base, Illinois,
 18 FLRA No. 75 (1985);  Social Security Administration and Northeastern
 Program Service Center, 18 FLRA No. 66 (1985).  It has not been
 established that those practices or negotiated agreements would have had
 any bearing on the negotiations between the NTEU and FDA Region VII.  In
 this regard, the record indicates that the FDA had no specific national
 dress code, but that such policies were established locally by the
 various FDA components based on local conditions and customs, and there
 is no indication that, until the time that NTEU's request was denied,
 the Respondent intended to use or even obtain the data concerning
 practices in any of the other FDA components.  /3/
 
    Therefore, as the Authority concludes that the General Counsel has
 not established that the data sought by the Union met all three
 requirements specified in section 7114(b)(4) of the Statute, the
 complaint shall be dismissed.
 
                                   ORDER