18:0400(53)CA - Treasury, Customs Service, Region IV, Miami, FL and NTEU -- 1985 FLRAdec CA
[ v18 p400 ]
18:0400(53)CA
The decision of the Authority follows:
18 FLRA No. 53
DEPARTMENT OF THE TREASURY
UNITED STATES CUSTOMS SERVICE
REGION IV, MIAMI, FLORIDA
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
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/
ORDER
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
Chairman
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
(1982).
/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
herein.
/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).