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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
 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/
    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
                                       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
    /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
    /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).