U.S. Customs Service, Region VII, Los Angeles, California and National Treasury Employees Union (Authority decision, September 30, 1982)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority resolving an unfair labor practice complaint under 5 U.S.C. § 7116. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

An NTEU-represented Customs employee grieved a denied promotion and the union requested records about the selection process. Customs refused the records and also declined a requested fourth-step grievance meeting. The Authority held that the relevant records had to be furnished under the statutory information duty, even though Customs disputed whether the grievance was arbitrable. It dismissed the separate meeting allegation because the single refusal did not amount to repudiation of the collective bargaining agreement. Customs was ordered to provide the records on request and post a notice.

Decision snapshot

• Authority: 5 U.S.C. § 7114(b)(4).
• Outcome: Information-refusal violation found; fourth-step meeting allegation dismissed.
• Key point: A dispute over grievance arbitrability did not excuse refusal to supply necessary representation records.

Full text (FLRA public release)

[ v10 p251 ]

10:0251(47)CA

The decision of the Authority follows:

10 FLRA No. 47

U.S. CUSTOMS SERVICE, REGION VII
LOS ANGELES, CALIFORNIA
Respondent

and

NATIONAL TREASURY EMPLOYEES UNION
Charging Party

Case No. 8-CA-240

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, INCLUDING THE PARTIES'
STIPULATION OF FACTS, ACCOMPANYING EXHIBITS, AND THE BRIEFS SUBMITTED BY
THE RESPONDENT AND THE GENERAL COUNSEL, THE AUTHORITY FINDS:

AN EMPLOYEE IN THE BARGAINING UNIT EXCLUSIVELY REPRESENTED BY THE
NATIONAL TREASURY EMPLOYEES UNION (THE UNION) FILED A GRIEVANCE WITH THE
RESPONDENT UNDER THE PARTIES' NEGOTIATED AGREEMENT WHICH ALLEGED THAT HE
HAD BEEN DENIED A PROMOTION IMPROPERLY BECAUSE OF HIS PHYSICAL HANDICAP,
A NON-MERIT FACTOR, AND DESIGNATED THE UNION AS HIS REPRESENTATIVE. IN
CONNECTION WITH THE GRIEVANCE, CERTAIN INFORMATION WAS REQUESTED
CONCERNING DOCUMENTS USED IN THE PROMOTION PROCESS BY THE RANKING PANEL
AND THE SELECTING OFFICIAL. AT THE FIRST TWO STEPS OF THE NEGOTIATED
GRIEVANCE PROCEDURE, THE EMPLOYEE'S GRIEVANCE WAS DENIED ON ITS MERITS.
IN ADDITION, THE REQUESTED DOCUMENTS WERE SPECIFICALLY DENIED AT THE
SECOND STEP BY THE RESPONDENT'S REPRESENTATIVE ON THE BASIS THAT HE
COULD NOT SEE "HOW COPIES OF ALL THE DOCUMENTATION INVOLVED IN THIS
PARTICULAR PROMOTION ACTION WOULD ESTABLISH ANYTHING CONSTRUCTIVE
TOWARD
RESOLUTION OF THIS GRIEVANCE . . . ." AT THE THIRD STEP OF THE PARTIES'
NEGOTIATED PROCEDURE, THE GRIEVANCE WAS DENIED ON THE GROUND THAT IT
CONCERNED A MATTER FOR WHICH A STATUTORY APPEAL PROCEDURE EXISTED AND
THEREFORE WAS NOT GRIEVABLE UNDER THE NEGOTIATED AGREEMENT. THE UNION
APPEALED THAT DECISION TO THE FOURTH STEP OF THE NEGOTIATED GRIEVANCE
PROCEDURE AND REQUESTED A MEETING AS PROVIDED FOR THEREUNDER.
SUBSEQUENTLY, THE UNION AGAIN REQUESTED THE FOURTH STEP MEETING AND THE
PROMOTION INFORMATION CONCERNING THE GRIEVANCE. HOWEVER, WITHOUT
COMPLYING WITH EITHER REQUEST, THE RESPONDENT REJECTED THE GRIEVANCE AT
THE FOURTH STEP AS BEING NONGRIEVABLE UNDER THE NEGOTIATED AGREEMENT.

THE AMENDED COMPLAINT ALLEGES, IN ESSENCE, THAT THE RESPONDENT
VIOLATED SECTION 7116(A)(1), (5) AND (8) OF THE STATUTE /1/ BY REFUSING
TO FURNISH NECESSARY AND RELEVANT INFORMATION REQUESTED BY THE UNION IN
CONNECTION WITH THE PROCESSING OF AN EMPLOYEE'S GRIEVANCE AS REQUIRED BY
SECTION 7116(B)(4) OF THE STATUTE, /2/ AND VIOLATED SECTION 7116(A)(1)
AND (5) BY REFUSING TO HOLD THE FOURTH STEP MEETING WITH THE GRIEVANT
AND HIS EXCLUSIVE REPRESENTATIVE AS REQUIRED BY THE PARTIES' COLLECTIVE
BARGAINING AGREEMENT.

WITH RESPECT TO THE RESPONDENT'S FAILURE AND REFUSAL TO FURNISH THE
REQUESTED INFORMATION TO THE UNION, THE AUTHORITY HAS PREVIOUSLY HELD
THAT SECTION 7114(B)(4) OF THE STATUTE REQUIRES MANAGEMENT TO FURNISH A
UNION WITH INFORMATION WHICH WOULD ENABLE THE UNION TO EFFECTIVELY CARRY
OUT ITS REPRESENTATIONAL OBLIGATION DURING THE PROCESSING OF AN EMPLOYEE
GRIEVANCE, AND THAT MANAGEMENT VIOLATES SECTION 7116(A)(1) AND (5) OF
THE STATUTE IF IT REFUSES TO DO SO. /3/ IN THIS CASE, THE AUTHORITY
FINDS THAT THE RESPONDENT'S CONCEDED REFUSAL TO FURNISH THE UNION WITH
NECESSARY AND RELEVANT INFORMATION CONCERNING THE UNIT EMPLOYEE'S
GRIEVANCE OVER HIS NONSELECTION FOR PROMOTION UNDER THE NEGOTIATED MERIT
PROMOTION PROCEDURES CONSTITUTED A VIOLATION OF SECTION 7116(A)(1) AND
(5) OF THE STATUTE. IN SO CONCLUDING, THE AUTHORITY REJECTS THE
RESPONDENT'S CONTENTION THAT IT HAD NO DUTY TO FURNISH THE REQUESTED
INFORMATION BECAUSE THE EMPLOYEE'S GRIEVANCE INVOLVED A MATTER WHICH WAS
NONGRIEVABLE UNDER THE PARTIES' NEGOTIATED AGREEMENT. THUS, WITHOUT
PASSING UPON THE MERITS OF THE RESPONDENT'S CONTENTION, /4/ THE
AUTHORITY NOTES THAT SECTION 7114(B)(4) OF THE STATUTE BROADLY REQUIRES
MANAGEMENT TO FURNISH THE EXCLUSIVE REPRESENTATIVE WITH REQUESTED
INFORMATION, "TO THE EXTENT NOT PROHIBITED BY LAW," WHICH IS "REASONABLY
AVAILABLE AND NECESSARY FOR FULL AND PROPER DISCUSSION, UNDERSTANDING,
AND NEGOTIATION OF SUBJECTS WITHIN THE SCOPE OF COLLECTIVE BARGAINING,"
AND THAT THE INFORMATION REQUESTED HEREIN FULLY MET THE FOREGOING
REQUIREMENTS.

HOWEVER, THE AUTHORITY FINDS THAT THE RESPONDENT DID NOT VIOLATE
SECTION 7116(A)(1) AND (5) OF THE STATUTE, AS ALLEGED, BY FAILING TO
HOLD THE REQUESTED MEETING UNDER THE FOURTH STEP OF THE NEGOTIATED
GRIEVANCE PROCEDURE BEFORE REJECTING THE GRIEVANCE AS BEING
NONGRIEVABLE. IN THIS REGARD, THE AUTHORITY NOTES PARTICULARLY THAT THE
RESPONDENT DID REPLY AT THE FOURTH STEP AND MAINTAINED ITS POSITION THAT
THE SUBJECT MATTER OF THE GRIEVANCE WAS NONGRIEVABLE UNDER THE PARTIES'
NEGOTIATED AGREEMENT. IT IS ALSO NOTED THAT THE RECORD DOES NOT
ESTABLISH THAT THE UNION THEREAFTER REQUESTED ARBITRATION OR THAT THE
RESPONDENT EVER REFUSED TO PROCEED TO ARBITRATION. THUS, THE AUTHORITY
CONCLUDES THAT THE SINGLE INSTANCE OF THE RESPONDENT'S REFUSAL TO HONOR
A REQUEST FOR A FOURTH STEP MEETING IN THE CIRCUMSTANCES OF THIS CASE
DID NOT CONSTITUTE A REJECTION OF THE COLLECTIVE BARGAINING AGREEMENT IN
VIOLATION OF SECTION 7116(A)(1) AND (5) OF THE STATUTE. SEE
KAISERSLAUTERN AMERICAN HIGH SCHOOL, DEPARTMENT OF DEFENSE DEPENDENTS
SCHOOLS, GERMANY NORTH REGION, 9 FLRA NO. 28 (1982). /5/ THEREFORE,
THAT PORTION OF THE COMPLAINT SHALL BE DISMISSED.

ORDER

PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, IT IS
HEREBY ORDERED THAT THE U. S. CUSTOMS SERVICE, REGION VII, LOS ANGELES,
CALIFORNIA, SHALL:

1. CEASE AND DESIST FROM:

(A) FAILING AND REFUSING TO PROVIDE THE NATIONAL TREASURY EMPLOYEES
UNION, THE

EMPLOYEES' EXCLUSIVE REPRESENTATIVE, WITH ALL NECESSARY AND RELEVANT
DOCUMENTS AND MATERIALS

REQUESTED BY THE NATIONAL TREASURY EMPLOYEES UNION IN CONNECTION WITH
THE PROCESSING OF A

GRIEVANCE FILED BY A UNIT EMPLOYEE, BOBBY G. LOIBL, REGARDING THE
SELECTION PROCESS FOR A

SENIOR CUSTOMS INSPECTOR, GS-11-VII-79-58-JM.

(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
COERCING 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, PROVIDE THE NATIONAL TREASURY EMPLOYEES UNION, THE
EMPLOYEES' EXCLUSIVE

REPRESENTATIVE, WITH ALL NECESSARY AND RELEVANT DOCUMENTS AND
MATERIALS REQUESTED BY THE

NATIONAL TREASURY EMPLOYEES UNION IN CONNECTION WITH THE GRIEVANCE
FILED BY A UNIT EMPLOYEE,

BOBBY G. LOIBL, REGARDING THE SELECTION PROCESS FOR SENIOR CUSTOMS
INSPECTOR,

GS-11-VII-79-58-JM.

(B) POST AT ITS FACILITIES AT THE U.S. CUSTOMS SERVICE, REGION VII,
LOS ANGELES,

CALIFORNIA, 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 DIRECTOR OF THE

U.S. CUSTOMS SERVICE, LOS ANGELES, CALIFORNIA, AND SHALL BE POSTED
AND MAINTAINED BY HIM FOR

SIXTY CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING
ALL BULLETIN BOARDS AND

OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE
DIRECTOR SHALL TAKE

REASONABLE STEPS 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 VIII, FEDERAL LABOR RELATIONS AUTHORITY,
WORLD TRADE CENTER, 350

SOUTH FIGUEROA STREET, 10TH FLOOR, LOS ANGELES, CALIFORNIA 90071, IN
WRITING, WITHIN 30 DAYS

FROM THE DATE OF THIS ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.

IT IS FURTHER ORDERED THAT THE COMPLAINT IN CASE NO. 8-CA-240 IN ALL
OTHER RESPECTS BE, AND IT HEREBY IS, DISMISSED.

ISSUED, WASHINGTON, D.C., SEPTEMBER 30, 1982

RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY

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 PROVIDE THE NATIONAL TREASURY EMPLOYEES
UNION, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, WITH ALL NECESSARY AND
RELEVANT DOCUMENTS AND MATERIALS REQUESTED BY THE NATIONAL TREASURY
EMPLOYEES UNION IN CONNECTION WITH THE PROCESSING OF BOBBY G. LOIBL'S
GRIEVANCE REGARDING THE SELECTION PROCESS FOR SENIOR CUSTOMS INSPECTOR,
GS-11-VII-79-59-JM.

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, PROVIDE THE NATIONAL TREASURY EMPLOYEES UNION
WITH ALL NECESSARY AND RELEVANT DOCUMENTS AND MATERIALS REQUESTED BY THE
NATIONAL TREASURY EMPLOYEES UNION IN CONNECTION WITH THE PROCESSING OF
BOBBY G. LOIBL'S GRIEVANCE REGARDING THE SELECTION PROCESS FOR THE
SENIOR CUSTOMS INSPECTOR, GS-11-VII-79-58-JM.

(AGENCY OR 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 FOR THE FEDERAL LABOR RELATIONS AUTHORITY, REGION VIII, WHOSE
ADDRESS IS: WORLD TRADE CENTER, 350 SOUTH FIGUEROA STREET, 10TH FLOOR,
LOS ANGELES, CALIFORNIA 90071 AND WHOSE TELEPHONE IS: (213) 688-3805.

--------------- FOOTNOTES$ ---------------

/1/ SECTION 7116(A)(1), (5) AND (8) PROVIDES:

(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;

. . . .

OR (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 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/ SEE VETERANS ADMINISTRATION REGIONAL OFFICE, DENVER, COLORADO, 7
FLRA NO. 100 (1982); DEPARTMENT OF THE NAVY, PORTSMOUTH NAVAL SHIPYARD,
4 FLRA NO. 82 (1980).

/4/ IN THIS REGARD, AS THE AUTHORITY HAS PREVIOUSLY STATED IN
CONNECTION WITH AGREEMENTS NEGOTIATED PRIOR TO THE EFFECTIVE DATE OF THE
STATUTE, AS HERE, SECTION 7121 OF THE STATUTE REQUIRES THAT QUESTIONS OF
ARBITRABILITY SHALL BE SUBMITTED TO ARBITRATION FOR RESOLUTION UNLESS
THE PARTIES MUTUALLY AGREE OTHERWISE. SEE INTERPRETATION AND GUIDANCE,
2 FLRA 273 AT 279, N. 7 (1979).

/5/ IN CONTRAST, SEE VETERANS ADMINISTRATION HOSPITAL, DANVILLE,
ILLINOIS, 4 FLRA NO. 59 (1980) AND GREAT LAKES PROGRAM SERVICE CENTER,
SOCIAL SECURITY ADMINISTRATION, DEPARTMENT OF HEALTH AND HUMAN SERVICES,
CHICAGO, ILLINOIS, 9 FLRA NO. 58 (1982), WHEREIN THE AUTHORITY FOUND THE
COMPLETE REPUDIATION OF AN ENTIRE AGREEMENT TO CONSTITUTE A VIOLATION OF
SECTION 7116(A)(1) AND (5) OF THE STATUTE.