21:0646(82)CA - IRS, National Office and NTEU -- 1986 FLRAdec CA



[ v21 p646 ]
21:0646(82)CA
The decision of the Authority follows:


 21 FLRA No. 82
 
 INTERNAL REVENUE SERVICE 
 NATIONAL OFFICE
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case No. 3-CA-40441
 
                            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 violated section
 7116(a)(1), (5) and (8) of the Federal Service Labor-Management
 Relations Statute (the Statute) by failing and refusing to furnish, as
 required by Section 7114(b)(4) of the Statute, /1/ information requested
 by the National Treasury Employees Union (the Union), the exclusive
 representative of its employees, in connection with the Union's
 processing of a grievance on behalf of employee Michael Santoro.  The
 grievance alleged that the Respondent had unlawfully retaliated against
 Santoro for filing an earlier grievance by lowering his evaluation for
 purposes of consideration for merit promotion to a Tax Law Specialist
 position.
 
    The Union, in connection with its representation of the grievant, and
 its pursuit of what it considered to be a discriminatory appraisal,
 requested information concerning the promotion process, including a
 "promotion package." The Union asserted that only by comparative
 assessment of the promotion material would it be able to prove
 discrimination on the part of the Respondent.  The Respondent denied
 this request, stating that because the position in question is not a
 bargaining unit position, the Union was not entitled to receive the
 requested material under section 7114(b)(4) of the Statute.  The
 Respondent contends also that, as the position in question is a
 non-bargaining unit position, the issue was not grievable under the
 parties' negotiated agreement.  The parties stipulated that the data
 requested by the Union is normally maintained by the Respondent, is
 reasonably available, and does not constitute guidance, advice, counsel,
 or training provided to officials or supervisors relating to collective
 bargaining.  The Respondent stipulated also that, if the information had
 been requested in connection with a bargaining unit position, it would
 have been provided.
 
    Under section 7114(b)(4) of the Statute, an agency has a duty to
 furnish upon request by an exclusive representative, 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.  However, a union's bare assertion that it
 needs data to process grievances does not automatically oblige an agency
 to supply such data.  The duty to supply data under section 7114(b)(4)
 thus turns upon the nature of the request in the circumstances of each
 particular case.  /2/ Therefore, the threshold issue is whether the data
 requested by the exclusive representative 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 grievance involved herein.
 
    In the Authority's view, in order to process the instant grievance,
 the Union would have had to be able, as it explained to the Respondent,
 to make a comparative assessment of the various evaluations involved in
 the merit promotion action involved, that is, all material pertinent to
 the promotion process contained in the "promotion package." Thus, the
 Authority finds that the General Counsel has demonstrated that the data
 requested by the Union is clearly necessary under section 7114(b)(4) of
 the Statute in order for the Union to determine whether the Respondent
 engaged in deliberate discrimination against the grievant by lowering
 his promotion appraisal in retaliation for his having processed a
 previous grievance to arbitration.  /3/
 
    Accordingly, the Authority concludes that the Respondent violated
 section 7116(a)(1), (5) and (8) of the Statute by failing to furnish the
 Union with necessary data as required by section 7114(b)(4), and we
 shall order that the requested data be furnished to the Union upon
 request.  /4/
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority hereby orders that the
 Internal Revenue Service, National Office, Washington, D.C., shall:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing to furnish, upon request by the National
 Treasury Employees Union, the exclusive representative of its employees,
 the data which the Authority has deemed necessary to enable the
 exclusive representative to perform its representational duties in
 connection with Michael Santoro's grievance.
 
    (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 in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Upon request, furnish the National Treasury Employees Union, the
 exclusive representative of its employees, the data which the Authority
 has deemed necessary to enable the exclusive representative to perform
 its representational duties in connection with Michael Santoro's
 grievance.
 
    (b) Post at its Washington, D.C. offices, 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 Respondent, and shall be posted and
 maintained for 60 consecutive days thereafter, in conspicuous places,
 including bulletin boards and other places where notices to employees
 are customarily posted.  Reasonable steps shall be taken to insure 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 III, 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.
 
    Issued, Washington, D.C, May 8, 1986
                                       /s/ JERRY L. CALHOUN
 
                                       Jerry L. Calhoun, Chairman
                                       /s/ HENRY B. FRAZIER III
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Section 7114(b)(4) provides:
 
              Section 7114.  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;  and
 
          (C) which does not constitute guidance, advice, counsel, or
       training provided for management officials or supervisors,
       relating to collective bargaining(.)
 
    (2) See Department of the Treasury, United States Customs Service,
 Region IV, Miami, Florida, 18 FLRA No. 53 (1985);  Army and Air Force
 Exchange Service (AAFES), Fort Carson, Colorado, 17 FLRA 624 (1985),
 petition for review filed sub nom. American Federation of Government
 Employees, Local 1345 v. FLRA, No. 85-1378 (D.C. Cir. June 21, 1985).
 
    (3) As the Authority has previously noted, the resolution of
 grievability questions cognizable under law is for an arbitrator under
 parties' negotiated agreements, unless they mutually agree otherwise,
 and the existence of such a threshold question herein, contrary to the
 Respondent's assertion, would not in and of itself relieve the
 Respondent of its obligation to furnish otherwise necessary information
 pursuant to section 7114(b)(4) of the Statute.  See, e.g., U.S. Customs
 Service, Region VII, Los Angeles, California, 10 FLRA 251 (1982).
 Compare Director of Administration, Headquarters, U.S. Air Force, 17
 FLRA 372 (1985), wherein the Authority held that if the underlying
 matter is not cognizable under law (e.g., the filing of a grievance
 concerning a probationary employee's termination), then the question may
 not go to an arbitrator.  It follows that in the latter circumstances,
 unlike here, there would be no section 7114(b)(4) obligation to furnish
 such data for the purpose that the exclusive representative was seeking
 it.
 
    (4) See Bureau of Alcohol, Tobacco and Firearms, National Office,
 Washington, D.C., 18 FLRA No. 74 (1985).  In so concluding, the
 Authority notes that there is no allegation herein that providing the
 requested data is prohibited by the Freedom of Information Act, Pub. L.
 No. 89-487, 80 Stat. 256 (codified as amended at 5 U.S.C. Section 552
 (1982)) or the Privacy Act of 1974, Pub. L. No. 83-579, 88 Stat. 1896
 (codified as amended at 5 U.S.C. 552a (1982)).  See generally Army and
 Air Force Exchange Service (AAFES), Fort Carson, Colorado, supra.
 
 
 
 
 
                                 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
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT fail or refuse to furnish, upon request by the National
 Treasury Employees Union, the exclusive representative of our employees,
 the data which the Authority has deemed necessary to enable the
 exclusive representative to perform its representational duties in
 connection with Michael Santoro's grievance.