32:0920(131)CA - - IRS, Washington, DC and IRS, Wichita District, Wichita, KS and NTEU - - 1988 FLRAdec CA - - v32 p920
[ v32 p920 ]
The decision of the Authority follows:
32 FLRA No. 131
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
INTERNAL REVENUE SERVICE
INTERNAL REVENUE SERVICE
NATIONAL TREASURY EMPLOYEES UNION
Case No. 7-CA-70608
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority under section 2429.1(a) of the Authority's Rules and Regulations, based on a stipulation of facts by the parties.
The issue is whether the Respondents violated section 7116(a)(1), (5) and (8) of the Federal Service Labor- Management Relations Statute (the Statute) by refusing to provide the National Treasury Employees Union (the Union) with certain data. The Union sought the data in connection with its investigation of compliance by the Respondents with an order by the Authority to remedy the improper failure to recommend a performance award to a unit employee.
For the reasons below, we conclude that the Respondents violated the Statute.
The Union is the exclusive representative of a bargaining unit which includes employees of the Respondent's facilities within the Internal Revenue Service, Wichita District, Wichita, Kansas. Glenn E. Schreiber, Group Manager and Supervisor of one of those employees, Robert E. Moore, refused to recommend Moore for a high quality step increase because of Moore's disclosure of taxpayer information to the Union's lawyers. On October 22, 1986, the Authority issued its decision on remand in Department of the Treasury, Internal Revenue Service, Wichita District, Wichita, Kansas, 23 FLRA 674.(*) Among other things, the Authority ordered the Respondents to "[r]ecommend employee Moore for a high quality step increase, and consider and act upon the recommendation without regard to his disclosure of taxpayer information in connection with an employee grievance, since he lacked adequate notice that he did not have sufficient authorization to make the disclosure." Id. at 676. The Authority also directed the Respondents to post an appropriate notice.
On October 24, 1986, the Authority's Regional Director, Region 7, issued a letter to the Respondents which directed compliance with the Authority's decision and order on remand in 23 FLRA 674. On January 27, 1987, the Respondents advised the Regional Director that the notice had been posted pursuant to the Regional Director's compliance letter. On or about February 11, 1987, Schreiber recommended that Moore receive a quality pay increase. Subsequently, on or about February 18, 1987, Clarence King, Director of the Wichita District, disapproved the request.
On or about April 10, 1987, Respondent Wichita District confirmed to the FLRA Regional Director that the posting requirements of the decision and order on Remand in 23 FLRA 674 had been completed and further provided documentation that Moore had been recommended for an award without regard to protected activities. Stipulation, Paragraph 13. The Respondent's letter to the Regional Director also noted that the recommendation had been disapproved, and stated, with supporting documentation, that the disapproval was based on Moore's performance appraisals. Moore had been rated at the "fully acceptable" level. According to the Agency, Moore's appraisals did not meet the requirements of the Federal Personnel Manual (FPM) for the award. The letter stated that FPM Chapter 451 requires:
The employee's most recent performance appraisal must support the conclusion that overall performance of his or her assigned duties and responsibilities substantially exceeds an acceptable level of competence so that, when viewed as a whole, the employee's performance is at a high level of quality. . . .
On May 8, 1987, the Regional Director advised the parties that the review of compliance with the Authority's decision on remand in 23 FLRA 674 led to a determination that the matter was closed "and will remain closed conditioned upon continued compliance with the Decision and Order." The Regional Director stated that in the event of subsequent violations of the Statute, "this matter may be re-opened." Exhibit 7.
On May 11, 1987, the Union requested "information to process a complaint on behalf of Robert Moore, Revenue Officer, concerning a recent denial of an HQI," including copies of appraisals and awards for revenue officers-- particularly for two named employees--in Supervisor Schreiber's group, from January 1982 through March 1983. The Union advised the Regional Director by letter dated May 19 that it was investigating the denial of Moore's award and that it was awaiting a response to its request from the Respondent "for information we believe is necessary and relevant to investigate and process an allegation of non-compliance."
The Respondents declined to furnish the information stating that it could
only "arguably be necessary and relevant" to an issue of compliance; that the FLRA Regional Director had closed the case on compliance; that "[a]s the case is now closed it appears that the requested information is not necessary or relevant"; that the Union needed to establish further relevance for the data requested . . . ; and that some of the requested data had been destroyed.
Stipulation, Paragraph 17.
III. Positions of the Parties
The parties stipulate that release of the data sought is not prohibited by law, is normally maintained in the regular course of business, is reasonably available and does not constitute guidance, advice, counsel or training for management officials or supervisors relating to collective bargaining. The parties agree that release of the data would be required under section 7114(b)(4) if the data were found to be "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining[.]" Section 7114(b)(4)(B).
The General Counsel asserts that the Union has a right to data to determine whether to allege non-compliance with an Authority decision and order. Further, the General Counsel asserts that the Regional Director may reopen a case if non-compliance is alleged. Therefore, the General Counsel argues that the Union's pursuit of data to determine whether to allege non-compliance was proper.
The Respondents note that the Union's request followed the Regional Director's finding that the Respondents had met their obligations to comply with the Authority's decision and order on remand. The Respondents also note the Regional Director's statements that the case would remain closed conditioned upon continued compliance and may be reopened in the event "subsequent violations" occurred. The Respondents asked the Union for clarification as to the relevance of the information. The Union made no response prior to filing the charge in the instant case. The Respondents argue that "the closed status of the compliance issue places the relevance and necessity of the information in serious doubt and justifies the Respondent's clarification request." Respondents' brief at 6.
The Respondents also argue that reinvestigation of the finding of compliance is not appropriate because it is not provided for in the Regional Director's letter or applicable regulations. The Respondents further argue that if the Union were to request that the Regional Director review compliance, such request would be untimely. The basis of this assertion is that the Union waited to object to the Respondent's assertion of compliance for a month after the Respondent notified the Union and the Regional Director of its compliance action. The information request was filed only after the Regional Director determined that compliance had been effected.
Finally, the Respondents argue that even if reopening the compliance issue were possible, the relevance and necessity of the information sought is doubtful because of the evidence submitted to establish compliance. The Respondents argue that Moore's performance appraisals at the level of "acceptable" demonstrated that he was not eligible because of the requirements of the Federal Personnel Manual for the Quality Step Increase sought. These appraisals were submitted to the Regional Director, as well as to the Union, with the statement on compliance.
IV. Analysis and Conclusions
A. Section 7114(b)(4)(B) Requires An Agency To Furnish Information Necessary For A Union To Carry Out Its Representational Duties
Section 7114(b)(4)(B) of the Statute provides that an agency has a duty to furnish to an exclusive representative data which is "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining[.]" A union has a right to such information to the extent necessary to carry out its representational functions and responsibilities. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 30 FLRA 127, 141 (1987). In determining whether a failure or refusal by management to provide information violates the Statute, a union's request must be evaluated in the context of the "full range" of its representational responsibilities. American Federation of Government Employees, AFL-CIO v. FLRA, 811 F.2d 769, 775 (2d Cir. 1987); American Federation of Government Employees, Local 1345 v. FLRA, 793 F.2d 1360, 1364 (D.C. Cir. 1986).
The Respondents' primary argument supporting the failure to furnish the requested data is that the request related to a compliance matter which was closed and, therefore, raised "serious doubt" as to whether the data was necessary within the meaning of section 7114(b)(4)(B) of the Statute. Respondents' brief at 6.
For the following reasons, we do not agree with the Respondents' assertion.
B. The Respondents Have Not Shown That Review Of A Closed" Compliance Matter Is Precluded
The Union sought data, including performance appraisals for all revenue officers in Supervisor Schreiber's group, and particularly, those of two named employees, from January 1982 through March 1983. It also requested copies of awards, particularly high quality step increases, for those same employees. The Union sought the data "to process a complaint on behalf of Robert Moore, Revenue Officer, concerning a recent denial of an HQI." Stipulation, Paragraph 15. Moore had been denied a step increase, based on Respondent's assertion that he was ineligible under the FPM due to his performance appraisal.
There is no assertion that the data would not have been "necessary" if it had been requested in connection with an unresolved compliance matter. The Union's representational duty in an unresolved compliance matter flows directly from its involvement in the unfair labor practice case. Therefore, in our view, the dispositive question is whether the Union's right to the data was foreclosed by the Regional Director's determination that the Respondents had met their obligations under the Authority's decision and order on remand in 23 FLRA 674: to recommend Moore for the HQI and act upon the recommendation without regard to his disclosure of taxpayer information in connection with an employee grievance.
The Respondents assert that the Regional Director's finding that the case would remain closed conditioned upon continued compliance, and could be reopened in the event of "subsequent violations", precludes reopening the matter. We find that reopening a compliance matter is not precluded by our regulations. We need not decide what evidence would be necessary to persuade a Regional Director to review a finding of compliance.
Moreover, in view of the "full range" of the Union's representational responsibilities, we cannot on this record determine that the information which the Union requested is not "necessary." As an exclusive representative, the Union must have information germane to administration of the contract, to future negotiations, and to representing employees in third party actions, including compliance matters such as this. In addition, the Union must have information that affects its role as exclusive representative in order to properly assess its representational responsibilities. See National Treasury Employees Union, Chapter 237 and U.S. Department of Agriculture, Food and Nutrition Service, Midwest Region, 32 FLRA 62, 69 (1988).
C. Additional Arguments By The Respondent Do Not Present Valid Defenses To The Unfair Labor Practice Charge
1. The Question Of Moore's Eligibility For An Award Is Not Dispositive Of The Request For Information
The Respondents argue that the information is not necessary because the evidence they submitted established compliance. They argue that denial of the step increase was justified by Moore's ineligibility under the FPM due to the level of his performance appraisal.
The issue before us is not whether (1) there was compliance with our order, (2) the Regional Director was correct in determining to close the compliance issue, or (3) the Regional Director should review her determination. The question simply is whether the Respondents had an obligation to furnish the data in order for the Union to be able to fulfill its representational duties. The question of whether the denial of Moore's HQI was appropriate is not before us.
2. The Union's Failure To Answer The Respondent's Request For Clarification Of The Necessity For The Information Is Not A Defense To The Respondents' Refusal To Furnish The Information
Finally, the Respondents contend that the Union's failure to respond to a request for clarification of its need for the items is a defense to the charge that the Respondents committed an unfair labor practice by refusing to furnish the data requested by the Union. Respondents' brief at 4-5. We disagree with this contention.
This is not a case where the relevance of the data is "open to conjecture or surmise." Defense Mapping Agency, Aerospace Center, St. Louis, Missouri, 21 FLRA 595, 607 (1986). Rather, the Union's request clearly was related to its examination of the Respondents' compliance with the order that the Respondent recommend Moore for the step increase and act upon the recommendation without regard to his disclosure of taxpayer information. The Respondents knew or should have known the reasons the Union needed the items sought.
D. The Respondents Must Furnish Copies Of The Documents Sought To The Extent They Are Reasonably Available
According to the stipulation of the parties, only two of the documents sought by the Union exist at this time. Stipulation, Paragraph 18. We shall order that the Respondents furnish to the Union copies of those documents.
The data sought by the Union under section 7114(b)(4)(B) of the Statute is necessary for it to properly perform its representational responsibilities. Therefore, we shall order the Respondents to cease and desist from refusing to furnish the data and to furnish to the Union the two existing documents.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Internal Revenue Service, Washington, D.C. and the Internal Revenue Service, Wichita District, Wichita, Kansas, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the National Treasury Employees Union, the exclusive representative of a unit of their employees, the data requested by the Union in its letter of May 11, 1987.
(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Furnish the National Treasury Employees Union, the exclusive representative of a unit of their employees, with copies of the two documents, from among those which were requested by the Union in its letter of May 11, 1987, which presently exist.
(b) Post at all of its facilities in the Wichita District where bargaining unit employees represented by the National Treasury Employees Union are located, 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 the Internal Revenue Service District Director, Wichita District, Wichita, Kansas, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure 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 VII, Federal Labor Relations Authority, Denver, Colorado, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
Issued, Washington, D.C.,
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request of the National Treasury Employees Union, the exclusive representative of a unit of our employees, the data requested by the Union in its letter of May 11, 1987.
WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL furnish the National Treasury Employees Union, the exclusive representative of a unit of our employees, copies of the two documents, from among those which were requested by the Union in its letter of May 11, 1987, which presently exist.
This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region VII, Federal Labor Relations Authority, whose address is: 535 16th Street, Suite 310, Denver, Colorado 80202, and whose telephone number is: (303) 844-5224.
(If blank, the decision does not have footnotes.)
*/ The case was first decided by the Authority in 17 FLRA 485 (1985). The Authority's decision was reversed and remanded. National Treasury Employees Union v. Federal Labor Relations Authority, 791 F.2d 183 (D.C. Cir. 1986).