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

 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