21:0646(82)CA - IRS, National Office and NTEU -- 1986 FLRAdec CA
[ v21 p646 ]
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.