[ v18 p825 ]
The decision of the Authority follows:
18 FLRA No. 99 U.S. FOOD AND DRUG ADMINISTRATION REGION VII, KANSAS CITY, MISSOURI Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party Case No. 7-CA-30133 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, U.S. Food and Drug Administration, Region VII, Kansas City, Labor-Management Relations Statute (the Statute) by failing and refusing to furnish to the National Treasury Employees Union (NTEU), without charge, data requested by it pursuant to section 7114(b)(4) of the Statute. /1/ NTEU is the exclusive representative of Respondent's employees in a unit which includes all professional and non-professional General Schedule and Wage Grade employees employed by the regional office and field offices of the U.S. Food and Drug Administration, Region VII, Kansas City, Missouri, excluding management officials, supervisors and employees described in section 7112(b)(2), (3), (4), (6) and (7) of the Statute. The Respondent is one of 10 U.S. Food and Drug Administration (FDA) regional offices. The FDA is also made up of 22 district offices and 3 national center/regional laboratories. The Respondent's Regional Director reports to the FDA Director for Regional Operations in FDA Headquarters, located at Rockville, Maryland. The FDA is one of five operating agencies which, together with the Office of the Assistant Secretary for Health, comprise the Public Health Service (PHS), which in turn is a primary national subdivision of the Department of Health and Human Services (HHS). There is no labor relations office at FDA Headquarters servicing the regional and district offices. Instead, the servicing personnel and labor relations office for the Respondent is located in the HHS Region VII office in Kansas City, Missouri. Further, the labor relations staff of the PHS in Rockville, Maryland, is available to assist management officials in FDA regional and district offices. The record shows that in the summer of 1982, Respondent, FDA Region VII, informed NTEU that it was dissatisfied with the dress and appearance of certain employees and would insist on adherence to a dress code embodied in various directives issued by it and FDA Headquarters since 1972. On August 11, 1982, NTEU submitted to the Respondent a proposed dress code. The Respondent, on October 22, 1982, agreed to negotiate with NTEU over the subject of a dress code for its employees. On November 8, 1982, NTEU proposed that negotiating sessions commence later that month. Also, on that date, NTEU submitted a written request to the Respondent, pursuant to section 7114(b)(4) of the Statute, for the following documents: 1) Copies of all local directives issued by local management in any field installation implementing FMD 84 dated 12/8/78 currently being followed whether or not is issued prior to FMD 84. /2/ 2) Copies of any portion which relates to dress code of a negotiated contract between bargaining unit employees represented by an exclusive bargaining agent and local management in any field installation. In a labor-management meeting between Respondent and NTEU prior to November 17, 1982, NTEU told Respondent that it sought the above-noted data to assist it in drafting reasonable negotiating proposals on employee appearance and attire that would be consistent with directives or agreements affecting employees at other FDA facilities. On November 17, 1982, Respondent provided the NTEU with copies of all local directives that it (FDA, Region VII) had issued regarding employee dress and personal appearance, and a copy of FMD 84, dated January 2, 1981. In a letter to the Union accompanying these documents, Respondent refused to provide copies of any directives or portions of collective bargaining agreements concerning employee personal appearance and attire applicable to FDA facilities other than those in FDA Region VII, stating that such information "is neither relevant nor necessary to your expressed purpose." In a letter dated November 22, 1982, NTEU protested Respondent's refusal to furnish the information it had requested under section 7114(b)(4), and requested that the data be furnished to NTEU under the Freedom of Information Act (FOIA) without charge. By letter dated December 14, 1982, Respondent informed NTEU that its request for data in the November 22, 1982 letter was being processed under FOIA. Respondent stated therein that "(s)ince you have advised me that you do not intend to start negotiations until you have received and reviewed this information, I think it is appropriate that management avail themselves of the same opportunity . . . . Management does not wish to impose a dress code on employees which is more stringent than that required by the agency in general." Negotiations between the parties on personal appearance and attire proceeded, although NTEU had not received the requested data other than that pertaining to Region VII. An agreement was concluded and signed on February 25, 1983. On March 17, 1983, pursuant to its FOIA request, NTEU received the data that it had sought from the Respondent in November 1982. The documents which were provided to NTEU pursuant to the FOIA request were not, and are not normally, maintained in the offices of the Respondent. NTEU was billed $72.57 for this data and its request for a waiver of these fees has been denied by FDA. NTEU and the General Counsel contend that the information requested by NTEU pursuant to section 7114(b)(4) of the Statute was necessary and relevant to the parties' negotiations on employee personal appearance and attire. They assert that NTEU's intention was to use this information to assist it in drafting reasonable proposals on a clearly negotiable subject, and to ensure that its proposals were consistent with directives or agreements affecting employees at other FDA facilities. The General Counsel argues that a "liberal, discovery-type" standard similar to that in the private sector should be used. A union, it argues, need only be "acting upon the probability that the desired information (is) relevant, and that it would be of use to the union in carrying out its statutory duties and responsibilities." The General Counsel argues that whether a request for data satisfies this standard depends on the circumstances of each case, and that the circumstances here satisfy this standard. The General Counsel also notes Respondent's statement in its December 14, 1982 letter that "(m)anagement does not wish to impose a dress code on employees which is more stringent than that required by the agency in general." The General Counsel argues that since Respondent planned to use the information to limit the dress requirements to something not more stringent than the agency in general, NTEU had the right to test the accuracy of that statement which it could not do without the requested information. Further, NTEU and the General Counsel argue that the duty of the Respondent to furnish the information was not eliminated because the information was not maintained in the Region VII office. They argue that it does not matter whether the information was maintained at the regional office, but only that it was maintained within the "agency," i.e. FDA, and that such a request should not be limited to the level of exclusive recognition. Finally, they argue that the information was reasonably available within the meaning of the Statute. The Respondent contends that it was not required to furnish the information requested by NTEU because such information was not normally maintained by it in the regular course of business, was not reasonably available, and was not necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining, within the meaning of section 7114(b)(4) of the Statute. In this latter regard, the Respondent points out that each region or district office has autonomy sufficient to develop local policies unique to its own needs and customs under FMD 84 which allows for the negotiation of agreements in keeping with both local customs and the professional appearance expected of employees. Thus, the Respondent maintains that it was and is possible for the parties to negotiate fully on the subject without reference to practices or agreements on the subject existent in other parts of the country. Under section 7114(b)(4) of the Statute, an agency has a duty to furnish the exclusive representative, upon request, and to the extent not prohibited by law, data which is normally maintained by the agency in the regular course of business; reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors relating to collective bargaining. If, in an unfair labor practice proceeding, it is alleged that an agency failed to meet the duty imposed upon it by section 7114(b)(4), the General Counsel has the burden of establishing that the data sought by the Union met the requirements specified in the Statute. See, e.g., Director of Administration, Headquarters, U.S. Air Force, 6 FLRA 110, 122 (1981). In this case, the Authority concludes that the General Counsel has failed to establish that the data sought by the Union met the statutory requirements. In this regard, the parties stipulated that the requested documents at issue (i.e., those directives issued by FDA facilities other than Region VII) were not normally maintained in the offices of the Respondent. The evidence shows that such data was maintained by other organizational elements of the FDA not subject to the Respondent's control. Further, the General Counsel has not established that such data, maintained outside the Respondent's control, was reasonably available. Thus, while the record contains no evidence that management was dilatory in seeking to gather and provide the requested data to NTEU pursuant to the FOIA request dated November 22, 1982, it took almost four months, until March 17, 1983 for FDA to provide NTEU with the requested documents, by which time the parties had signed an agreement on personal appearance and attire. Finally, the General Counsel has not established that the data sought concerned practices and negotiated agreements pertaining to employees outside the bargaining unit, who are not necessarily similarly situated employees. Department of the Air Force, Scott Air Force Base, Illinois, 18 FLRA No. 75 (1985); Social Security Administration and Northeastern Program Service Center, 18 FLRA No. 66 (1985). It has not been established that those practices or negotiated agreements would have had any bearing on the negotiations between the NTEU and FDA Region VII. In this regard, the record indicates that the FDA had no specific national dress code, but that such policies were established locally by the various FDA components based on local conditions and customs, and there is no indication that, until the time that NTEU's request was denied, the Respondent intended to use or even obtain the data concerning practices in any of the other FDA components. /3/ Therefore, as the Authority concludes that the General Counsel has not established that the data sought by the Union met all three requirements specified in section 7114(b)(4) of the Statute, the complaint shall be dismissed. ORDER IT IS ORDERED that the complaint in Case No. 7-CA-30133 be, and it hereby is, dismissed in its entirety. Issued, Washington, D.C., June 28, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Section 7114(b)(4) provides: Sec. 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/ "FMD 84" is an FDA Field Management Directive issued by the Executive Director of Regional Operations of FDA entitled "Personal Appearance, Dress and Professional Conduct Policy." /3/ Respondent's statement suggesting a possible comparison of it policy with "the agency in general" was in relation to its subsequent production of data pursuant to NTEU's FOIA request, and as such has no bearing on the complaint herein.