21:0646(82)CA - IRS, National Office and NTEU -- 1986 FLRAdec CA
[ v21 p646 ]
21:0646(82)CA
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.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, upon request, furnish 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.
(Activity)
Dated:
By: (Signature) (Title)
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 III, Federal Labor Relations Authority, whose address
is: 1111 18th Street, 7th Floor, P.O. Box 33758, Washington, D.C.
20033-0758, and whose telephone number is: (202) 653-8500.