12:0390(84)CA - HHS, SSA, Field Assessment Office and AFGE -- 1983 FLRAdec CA



[ v12 p390 ]
12:0390(84)CA
The decision of the Authority follows:


 
 12 FLRA No. 84
 
 DEPARTMENT OF HEALTH AND HUMAN
 SERVICES, SOCIAL SECURITY
 ADMINISTRATION, FIELD ASSESSMENT
 OFFICE
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case No.: 4-CA-620
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondent had engaged in
 certain unfair labor practices and recommending that it be ordered to
 cease and desist therefrom and take certain affirmative action.  The
 Judge further found that the Respondent had not engaged in certain other
 alleged unfair labor practices and recommended dismissal of the
 complaint with respect to them.  The Charging Party filed a timely
 exception limited to the Judge's recommended Order.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, and noting particularly the
 absence of exceptions with respect thereto, the Authority hereby adopts
 the Judge's findings and conclusions.  The Authority also adopts the
 Judge's recommendations except as modified below.
 
    In its exception, the Charging Party asserts that the literal wording
 of the recommended Order would require posting of the Notice at only one
 of the Respondent's Field Assessment Offices and argues that the Order
 should require that the Notice be posted at all of the Respondent's
 Atlanta Region Field Assessment Office installations.  The Authority
 agrees, noting specifically that the travel practices study in issue was
 conducted in each of the five satellite offices of the Atlanta, Georgia,
 Field Assessment Office and the absence of any opposition to the
 Charging Party's exception.
 
    Accordingly, the Authority has amended the recommended Order herein
 to include the posting of Notices to Employees at all of the Atlanta
 Region Field Assessment Office Installations.
 
                                   ORDER
 
    Pursuant to section 2424.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Federal
 Service-Management Relations Statute, it is hereby ordered that the
 Department of Health and Human Services, Social Security Administration,
 Field Assessment Office, Atlanta, Georgia shall:
 
    1.  Cease and desist from:
 
          (a) Failing and refusing to provide to the American Federation
       of Government Employees, AFL-CIO, those portions of any available
       1980 reports on the travel practices of the five satellite offices
       of the Atlanta, Georgia, Field Assessment Office, which contain
       factual findings.
 
          (b) In any like or related manner, violating section
       7116(a)(1), (5), and (8) of the Federal Service Labor-Management
       Relations Statute.
 
    2.  Take the affirmative action:
 
          (a) Upon request, provide to the American Federation of
       Government Employees, AFL-CIO, those portions of any available
       1980 reports on the travel practices in the five satellite offices
       of the Atlanta, Georgia, Field Assessment Office, which contain
       factual findings.
 
          (b) Post, at all of the Atlanta Region Field Assessment Office
       Installations, 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, or his
       designee, and posted and maintained for 60 consecutive days
       thereafter, in conspicuous places, including all bulletin boards
       and other places where notices 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 IV, Federal
       Labor Relations Authority, in writing within 30 days from date of
       this Order, as to what steps have been taken to comply herewith.
 
    IT IS HEREBY FURTHER ORDERED that the remaining allegations in Case
 No. 4-CA-620 be, and they hereby are, dismissed.  
 
 Issued, Washington, D.C., July 29, 1983
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, 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
 STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
 WE WILL NOT fail or refuse to provide to the American Federation of
 Government Employees, AFL-CIO, those portions of any available 1980
 reports on the travel practices of the five satellite offices of the
 Atlanta, Georgia, Field Assessment Office, which contain factual
 findings.  WE WILL NOT, in any like or related manner, violate Sections
 7116(a)(1), (5), and (8) of the Federal Service Labor-Management
 Relations Statute.  WE WILL, upon request, provide to the American
 Federation of Government Employees, AFL-CIO, those portions of any
 available 1980 reports on the travel practices in the five satellite
 offices of the Atlanta, Georgia, Field Assessment Office, which contain
 factual findings.
                                       (Agency or Activity)
 
 Dated:  . . .  BY:  (Signature) 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 any employee have any
 questions concerning this Notice or compliance with any of its
 provisions, they may communicate directly with the Regional Director of
 the Federal Labor Relations Authority, Region IV, whose address is:
 1776 Peachtree Street, NW., Suite 501 - North Wing, Atlanta, Georgia,
 20209;  and whose telephone number is:  (404) 881-2324.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No.: 4-CA-620
 
    Wilson G. Schuerholz,
          Representative for the Respondent
 
    Barbara S. Liggett,
          Attorney for the General Counsel
 
    Barry Nelson,
          Representative for the Charging Party
 
    Before:  ISABELLE R. CAPPELLO
          Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, 92 Stat. 1191 (1978), 5 U.S.C. 7101 et seq., (Supp.
 III, 1979) (hereinafter referred to as the "Statute") and the Rules and
 Regulations of the Federal Labor Relations Authority (hereinafter, the
 "Authority"), 5 CFR 2410 et seq.
 
    By a Complaint dated July 16, 1981, the General Counsel of the
 Authority alleges that Respondent has engaged, and continues to engage
 in certain unfair labor practices, in violation of Sections 7116(a)(1),
 (5), and (8) of the Statute.  /1/
 
    The complaint is grounded on a charge filed by the Charging Party on
 October 6, 1980, and amended on December 12, 1980.  The acts alleged to
 constitute the violations concern repeated failures to provide the
 American Federation of Government employees, AFL-CIO (hereinafter, the
 "Union" or the "Charging Party") with information concerning a study of
 travel practices conducted in Respondent's Field Assessment Office
 ("FAO") in Atlanta, Georgia.  Respondent bases its defense on
 allegations that it gave the Union the final result of the study;  that
 certain underlying material is not the kind of data kept "on a regular
 basis;" and that the only other material sought is "part of management's
 process for coming up with the final report" and is not "relevant and
 necessary for National bargaining." See TR 13-14.
 
    A hearing was held on December 3, 1981, in Atlanta, Georgia.  The
 parties appeared, adduced evidence, and examined and cross-examined
 witnesses.  Briefs were filed on behalf of Respondent, on December 30,
 and on behalf of the General Counsel, on December 29.  Based upon the
 record made at the hearing, my observation of the demeanor of the
 witnesses, and the briefs submitted, the following findings of fact and
 conclusions of law are entered, and order recommended.
 
                           Findings of Fact /2/
 
    1.  Respondent is an activity of an Executive agency of the United
 States.  The Union is a labor organization which, since August 30, 1979
 has been certified as the exclusive representative of certain employees
 of the Social Security Administration, in a nationwide unit, including
 employees in its Atlanta, Georgia, region.
 
    2.  The Social Security Administration is organized into six
 components, one of which is Field Assessment, managed by an Associate
 Commissioner from the Headquarters Office in Baltimore, Maryland.  Field
 Assessment has 10 regional offices, managed by Directors, also called
 Field Assessment Officers.  One of the regional offices is in Atlanta,
 Georgia.  The Atlanta region covers eight States and operates five
 satellite offices, in College Park, Georgia;  Birmingham, Alabama;  St.
 Petersburg, Florida;  Raleigh, North Carolina;  and Nashville,
 Tennessee. Maxine McNutt has been the Director of the Atlanta region
 since January 1980.  Her office is divided into two staffs-- Evaluation
 Staff and Field Integrity Staff.  It is also organized into two
 divisions.  The division here concerned is that of Eligibility Quality.
 
    3.  Barry Nelson is the Union's Regional Vice-President, for the
 Atlanta region, and its highest-ranking official in the Atlanta region.
 He also holds a national-level office in the Union.
 
    4.  Since around June 10, 1980, the Union and the Social Security
 Administration have been in the process of negotiating a master
 agreement.  They presently operate under an interim agreement, signed in
 November 1979.  The national negotiations are taking place in Baltimore,
 Maryland.  Union proposals were submitted in April, and cover such
 matters as travel, the adequacy of per diem, hours travelled on an
 employee's own time, and overtime.
 
    5.  Travel became a matter of discussion between Ms. McNutt and Mr.
 Nelson shortly after she became Director, and have continued since that
 time.  A focus of the discussions has been the inadequacy of per diem,
 particularly during the winter months in Florida.  These inadequacies
 are handled on a case-by-case basis, as Mr. Nelson brings them to the
 attention of Ms. McNutt.
 
    6.  During the month of February 1980, a study of travel practices
 was conducted by analysts of the Evaluation Staff of the Atlanta region,
 at the Birmingham and College Park offices.  The analysts of the
 Evaluation Staff, and the employees they interviewed during the reviews,
 are all bargaining-unit employees represented by the Union.
 
    7.  On February 20, 1980, Mr. Nelson wrote a letter to Ms. McNutt
 about a "Proposed Unfair Labor Practice Charge" arising out of the
 "onsite reviews in the area of travel practices," which were conducted
 at the Birmingham and College Park offices.  (GCEx-3) He objected that
 the interrogation of employees went beyond travel practices, the stated
 purpose of the reviews, and into such matters as performance standards
 and evaluations.  He asked about the intent and purpose of gathering the
 information;  what information was gathered;  and how she proposed to
 utilize it.  He requested that no action be taken on the basis of the
 information received until he "had an opportunity to review and study
 the information (her) staff gathered." He asked to meet and confer with
 her regarding the issue, but did not expressly request that she furnish
 copies of the information gathered.
 
    8.  On March 7, 1980, Ms. McNutt replied to the February 20 letter.
 She explained that the "role of the Evaluation Staff (was), of course,
 to obtain and analyze data to determine whether new or revised (travel)
 procedures should be recommended." (GCEx-4) She informed him that
 subjects such as performance standards were discussed because an
 analysis of travel vouchers determined that employees, working in the
 same territory, were completing cases at considerably different rates.
 She assured him that she would review staff findings and
 recommendations, after receipt of the final report from the Evaluation
 Staff, and would notify him of any changes in travel procedures found to
 be desirable.
 
    9.  By memorandum, on March 27, 1980, the Associate Commissioner
 ordered all Field Assessment Officers to conduct a review of travel
 practices, in each component within their region, which should result in
 "an item specific report to the Field Assessment Officer." (Attachment
 to REx-3) He ordered each Field Assessment Officer to send to him, "a
 summary of the findings and recommendations being made locally, as well
 as any recommendations for related OA central office action." He stated
 that a "national overview" would then be prepared.  Study guidelines
 were attached to the memorandum, to assist in carrying out the review.
 The "regional summaries" were to be forwarded by the end of May.
 
    10.  At the time the Atlanta region received the March 27 memorandum
 from the Associate Commissioner, it already had "individual reports" on
 travel practices in the Birmingham and College Park offices.  The
 reports were in various forms.  Information relevant to what the
 Associate Commissioner wanted was extracted from these reports.  "Draft
 reports" were then prepared by the analysts for "review" of the
 Evaluation Staff Director before the regional summary was prepared.  (TR
 85-86)
 
    11.  On April 9, 1980, Ms. McNutt and Mr. Nelson met to discuss
 various labor-management matters, including the travel study being
 conducted.  Mr. Nelson requested "a sanitized copy of reports and
 findings of the review.  . . . " (GCEx-18 and see also TR 99-100).
 
    12.  On May 6, 1980, Ms. McNutt sent identical memorandums to the
 managers of the Raleigh, St. Petersburg, and Nashville offices, with
 copies to Mr. Nelson.  She informed them of on-site reviews to be made
 by a member of the Evaluation Staff between May 13 and May 21.  Each
 memorandum concluded with the sentence:  "Attached you will find a copy
 of the survey form which will be used during his visit." (GCEx-5, 6 and
 7) The survey form is entitled "QRS Questionnaire." (GCEx-8) It bears no
 form number and does not appear to be a printed form.  "QRS" refers to
 Quality Review Specialists, the employees whose travel was being
 reviewed.  The Questionnaire was composed of 20 parts, subdivided into
 "Itineraries" and "Travel Vouchers." A space for an answer was left
 after each part.  Such questions were posed as:  "What travel problems
 are unique to the area served by this (satellite office);" and "In areas
 designated as high rate, do you pay more than $19 a night to get lodging
 (and i)f so, specify the areas and the amount you pay." (GCEx-4) Ms.
 McNutt characterized the questionnaires as "a guideline" to be used by
 the analysts in their line of questioning (TR95), and as a "note-taking
 device." (TR 81) No region other than Atlanta utilized the
 questionnaires.  The Atlanta region felt the questionnaires would be
 helpful because the analysts assigned to make the onsite reviews were
 unfamiliar with the organization being reviewed and, for the most part,
 were new at the job of making surveys and analyses.
 
    13.  There is no evidence of record that any analyst ever used the
 questionnaires or that any management official ever saw a completed
 questionnaire.  Ms. McNutt assumes that any which were completed have
 been destroyed, pursuant to agency policy that employees destroy notes
 after a draft report is complete.  If any remain, they would be in the
 possession of the analysts who drafted the reports on satellite offices
 visited.
 
    14.  Apparently no statistical summary of the completed
 questionnaires was prepared.  See TR 94-95.  The Union first learned, at
 the hearing, that management did not have possession of any completed
 questionnaires.
 
    15.  The analysts prepared draft reports for review by the evaluation
 Staff Director.  The Director returned the report to the analysts,
 through their supervisors, for "any modification." (TR 81) Normally,
 drafts are purged from the files after completion of a report.
 
    16.  A "component report" was ultimately produced on each of the
 satellite offices, and submitted to the Evaluation Staff Director.  (TR
 86) The reports do not follow the format of the questionnaires.  They
 follow the guidelines received from headquarters.  The reports contain
 factual findings, as well as "opinions, evaluations by the Analysts in
 terms of any strengths and weaknesses, in terms of management carrying
 out its responsibilities as it related to the travel regulations and
 policies and procedures." (TR 86) They are "interspersed with management
 comments." (TR 87)
 
    17.  The component reports were consolidated into a "summary report
 for the Region" (TR 86), which was forwarded to headquarters on May 20,
 1980, with a copy to Mr. Nelson.  Apparently not all items in the
 component reports made their way into the summary report.  At the time
 Ms. McNutt reviewed the summary report, she saw the component reports
 and memorandums between herself and the Evaluation Staff.
 
    18.  The memorandums seen by Ms. McNutt were "based on findings" of
 the analysts.  (TR 94) The memorandums were exchanged, "if necessary,"
 to be sure that everything was "in perspective," and that management
 "understood what was going on." (TR 87) The extent, if any, to which the
 memorandums contained facts discovered in the course of the reviews is
 unclear from the record.
 
    19.  At the time of the hearing, the only thing remaining in
 management files is some "inter-management comments relating to the
 (summary) report that was submitted from the Evaluation Staff to (Ms.
 McNutt) based upon review of the records and the visits by the
 components." (TR 97) There might also be a component report from one of
 the offices which was visited after the summary report was forwarded to
 headquarters.  See TR 93-94.
 
    20.  On June 23, 1980, Mr. Nelson sent a memorandum to Ms. McNutt on
 the subject:  "QRS Questionnaire, (FOIA Request)." (GCEx-10) He
 requested "all information, including any letter, memoranda, note(s),
 minutes, recordings of meetings, reports, directives, studies,
 evaluations, reviews, and any other information which relates directly
 or indirectly to said visit(s)." The "visits" were the onsite reviews of
 May 13-21 at the Raleigh, St. Petersburg, and Nashville offices.
 
    21.  On July 15, 1980, Ms. McNutt sent a letter to Mr. Nelson about
 his request that "no implementation based on recommendations resulting
 from FAO travel reviews be undertaken until any proposed changes are
 negotiated." (GCEx-11) She also referred to his request that
 "information which relates to any proposed changes be furnished." She
 referred to the "report" made to the Associate Commissioner, and that
 she had sent him a copy.  She assured him that no changes impacting on
 working conditions would be implemented until the Union was consulted.
 There is some doubt as to just what requests of Mr. Nelson were being
 addressed in the July 15 letter.  See TR 34-35.
 
    22.  At the time Mr. Nelson received the July 15 letter, he was going
 back and forth between his office, in Birmingham, and the national
 negotiations, being conducted in Baltimore, Maryland.  He forgot about
 the letter.
 
    23.  On August 15, 1980, Mr. Nelson sent another letter to Ms.
 McNutt.  He referred to his June 23 request for information, and his
 being at a loss to understand why he had not been furnished it.  He
 wrote:  "I know that the subject questionnaire are readily available in
 the Regional Office in Atlanta. . . . " (GCEx-12) He stated that the
 information was "necessary in order for this Union to fulfill (its)
 responsibilities of representation as mandated by the Federal Service
 Labor Relations Statute."
 
    24.  On August 18, 1980, Respondent's Freedom of Information Officer
 sent to Mr. Nelson a letter denying Mr. Nelson's June 23 FOIA request,
 on the ground that it was exempt from disclosure as "deliberative
 privilege" of an agency.  Mr. Nelson was informed of his right to appeal
 under Subpart G, 45 CFR Part 5.  See GCEx-13.  No appeal was taken.
 
    25.  Mr. Nelson was advised by the Union's national office to utilize
 Section 7114(b)(4) of the Statute to obtain the information being
 sought.
 
    26.  On September 4, 1980, Mr. Nelson again wrote to Ms. McNutt on
 the subject of the "QRS Questionnaire." (GCEx-14) He requested "all
 information, including the questionnaires, which may relate either
 directly or indirectly to said visit(s)." The visits referred to were
 the onsite reviews of May 13-21 made at the Raleigh, St. Petersburg, and
 Nashville offices, "regarding travel practices." The request was
 specifically made under 5 U.S.C. 7114(b)(4), on the ground that "the
 requested information is necessary for this Union to fulfill its
 responsibilities of representation as mandated by the Federal Service
 Labor Relations Statute."
 
    27.  On September 15, 1980, Ms. McNutt replied to the Nelson request
 of September 4.  She stated that the request could not be honored, at
 that time, as management was "still formulating its proposed policies."
 (GCEx-15) She stated that she would give the Union an opportunity to
 exercise its bargaining rights, when the proposal was ready.  She
 enclosed "copies of the questionnaires used in collecting travel
 information." These copies were the blank forms sent to the analysts.
 
    28.  On October 2, 1980, Mr. Nelson requested "all information
 collected and the report(s) made" regarding the onsite reviews of the
 Birmingham and College Park offices, during February, and concerning
 travel practices.  (GCEx-16) Mr. Nelson advised her that "the issue of
 travel is one of the Articles on the table for National negotiations."
 He made the request under 5 U.S.C. 7114(b)(4).  He stated that it was
 needed "in order for this Union to fully represent the bargaining-unit
 employees."
 
    29.  On October 17, 1980, Ms. McNutt replied to the October 2 request
 of Mr. Nelson.  She advised him that the travel information collected
 was part of the travel study previously requested by him and that
 management was studying it and anticipated making a decision about it
 during the first half of the fiscal year.  She stated that the
 bargaining unit would be able to exercise its bargaining rights when
 management agreed on a proposed policy.  See GCEx-17.
 
    30.  At the hearing, Mr. Nelson gave a number of reasons for
 requesting the information relating to the travel study.  The Union was
 concerned "about the adequacy of per diem" and "a lot of the questions
 which were asked (by the analysts) potentially or they actually did
 address a lot of the issues that were currently being proposed at the
 national level." (TR 38) The information sought from employees by the
 Questionnaire dealt with such matters as the number of cases that could
 be completed on a travel day, and with travel problems unique to each
 office, as well as common ones.  Since the Questionnaires were given to
 the Evaluation Staff analysts, a number of changes have been proposed.
 In Mr. Nelson's view:  "A number of these proposals mirrored the
 information that was gleaned on those questionnaires." (TR 40)
 
    31.  What Mr. Nelson really wants is the "questionnaires", or "the
 data that was gathered by questionnaires." (TR 42) He does not feel that
 it "would necessarily be appropriate to have Management's comments" on
 the reports, although he would "always like to get those . . . ." (TR 42
 and see also TR 67)
 
  Union attempts to obtain travel-study information at the national level
 
    32. On July 28, 1980, the President of the National Council of Field
 Assessment Locals made a written request for "any and all reports,
 memoranda, review, records, notes, minutes, study, evaluation, etc."
 which related to the "FAO Travel Reviews." (REx-2) The request was made
 pursuant to Section 7114(b)(4) of the Statute.
 
    33.  On August 14, 1980, a "Summary of FAO Travel Practices Review"
 was sent to the Associate Commissioner by the Office of Evaluation on
 the "FAO travel practices studies conducted by the FAO Evaluation
 Staffs." (REx-3 attachment dated 8/13/80) It refers to "(i)tem specific
 reports" prepared for each Field Assessment Office and "summary reports"
 sent by the Field Assessment Officer to the Office of Evaluation.  The
 summary report made by the Office of Evaluation recapped the major
 findings and actions extracted from the individual reports.
 
    34.  On September 8, 1980, at the national level, the Union was
 furnished a copy of the "guidelines" issued in the travel review;  the
 "summary report of reviews of FAO travel practices performed in each
 region except Boston;" and the "travel audit" from the Boston region
 (REx-2) Mr. Nelson, as a national officer, received a copy of this
 material.  The Union felt that the material gave it "the broad
 perspective." (TR 51) The Union was orally advised that the regions
 would have more information, and to go to the regions for it.
 
    35.  On October 12, 1981, Mr. Nelson wrote to the Associate
 Commissioner and requested "the information upon which you prepared that
 summary report of reviews of FAO travel practices performed in each
 region, except Boston (which had already been furnished)." (REx-5) The
 request was made under the Statute, and because the issue of travel was
 "on the table at National Negotiations."
 
    36.  On October 14, 1980, the Associate Commissioner denied the
 October 12 request.  The ground for denial was that "the summary report
 of the review of FAO travel practices which we have already provided is
 sufficient for the Council's purposes . . . ." (REX-6) A further reason
 given was that the additional material sought constituted "internal
 investigative reports" which need not be made public under the Freedom
 of Information Act.
 
    37.  On October 30, 1980, the Union filed an unfair labor practice
 charge based upon the October 14 denial by the Associate Commissioner.
 This charge was subsequently withdrawn for several reasons.  One was
 that the Union understood that the information it really wanted was in
 the regions, and should be sought at the regional level.  Another was
 that changes being proposed did not apply across the board, nationally.
 Another reason was that it did not want to jeopardize the bargaining
 relationship at the national level.
 
    38.  On August 13, 1981, the Union filed another unfair labor
 practice against the Associate Commissioner.  One basis of the charge
 was that the Union's National Council was bypassed when changes were
 made in travel practices in at least 6 regions, including Atlanta.
 Another was a failure to provide relevant and necessary information, in
 violation of the Statute.  This charge was also withdrawn by the Union
 because it was felt that the charge should be against the regions.  A
 charge against one of the regions, Philadelphia, has been filed and is
 under investigation.
 
                        Discussion and Conclusions
 
    Section 7114(b)(4) of the Statute establishes a duty to furnish
 information to a union, as an incident to the agency's obligation to
 negotiate in good faith.  The duty is not unlimited, however.  The
 information sought must meet certain criteria.  The data sought must be
 of the sort normally maintained in the regular course of business
 (subpart (A));  it must be reasonably available and necessary for full
 and proper discussion, understanding, and negotiation of subjects within
 the scope of collective bargaining (subpart (B));  and it must not
 constitute guidance, advice, counsel, or training provided for
 management officials or supervisors, relating to collective bargaining
 (subpart (C)).
 
    1.  As to the questionnaires
 
    What the Union really wants, in this proceeding, are questionnaires
 distributed by management to its analysts for use in interviewing
 employees about travel practices.  The questionnaires, however, fail to
 meet one of the criteria-- that of being data normally maintained in the
 regular course of business.  These questionnaires are not standard
 forms, which an agency regularly uses and would normally maintain, such
 as travel vouchers or payroll records.  They were formulated by the
 agency as a guide to inexperienced analysts, for a particular project,
 and as an aide to them in preparing reports on the project.  Agency
 management did not require the analysts to use the questionnaires, or to
 turn them in with their reports.  Agency management is not sure that any
 analyst ever used a questionnaire.  No analyst testified to using one;
 and no agency management official testified to seeing a completed one.
 The analysts are bargaining-unit employees, who were required to turn in
 a written report containing their findings.  Thus, there was no need for
 management to see the questionnaires which may have been used in
 preparing the reports.
 
    2.  As to the component reports
 
    The reports turned in by the analysts do meet the statutory criteria
 for information which the agency must supply to the Union, at least to
 the extent that they contain factual findings as to travel practices in
 each office of the Atlanta region.  These reports were used by agency
 management in preparing the regional summary report for headquarters.
 They would contain facts elicited from employees about per diem problems
 in high-rate areas, as well as travel problems unique to the area served
 by each office.  The Atlanta region would normally be expected to
 maintain such valuable information in its files for use in the recurring
 discussions which take place with regional union officials over travel
 problems in the region.  This is particularly so, since the summary
 report on all the offices, would not, by its nature as a summary,
 contain the detail on such pressing collective-bargaining issues.  Thus,
 the subpart (A) criterion is met by the component reports.
 
    At least until May 20, 1980, when the summary report went forward to
 headquarters, the component reports met the subpart (B) criterion of
 being "readily available" to management at the time, on April 9, when
 the Union requested a sanitized copy of "reports" and findings of the
 travel study.  See finding 11, above.  The factual findings in the
 component reports would have included any unique travel problems in the
 area served by the office and, in particular, any per-diem problems--
 topics under recurring discussion between labor and management since
 January 1980.  Thus, these findings would be "necessary" to collective
 bargaining, the other subpart (B) element.
 
    Of course, the reports were interspersed with management comment and
 analysts' opinions and evaluations;  and such information was not shown
 to be "necessary" to collective bargaining.  This does not present an
 insurmountable problem, however.  The agency can sanitize the documents
 before turning them over to the Union.
 
    The subpart (C) negation, after the reports are sanitized, should not
 apply to the reports.  Only factual data on travel practices will remain
 for production;  and they will not constitute "guidance, advice,
 counsel, or training provided for management officials or supervisors
 relating to collective bargaining."
 
    3.  As to the management memorandums
 
    The content of the memorandums exchanged between Ms. McNutt and the
 Evaluation Staff is obscure.  See findings 18 and 19, above.  On such
 evidence, it cannot be concluded that the General Counsel proved, by a
 preponderance of the evidence, that the memorandums are "necessary" for
 collective bargaining purposes.
 
    4.  FOIA requests
 
    Respondent objects to the fact that paragraph 9(a) of the complaint
 names a date on which it declined to furnish information under the
 Freedom of Information Act (FOIA), and alleges that this constituted a
 violation of the Federal Service Labor-Management Relations Statute.
 See RBr 10-11.  The General Counsel, in his brief, does not attempt to
 support this allegation.  See GCBr 6-11.
 
    Respondent is correct in arguing that a failure to comply with the
 Freedom of Information Act does not constitute an unfair labor practice
 under the Statute.  FOIA has its own requirements and appeal rights.  A
 Union must request and prove a case for information under the Statute's
 Section 7114(b)(4) criteria before an unfair labor practice can arise
 from an agency refusal to produce.  Compare Veterans Administration
 Regional Office, Denver, Colorado and American Federation of Government
 Employees, AFL-CIO, Local 1557, 7 FLRA 629, No. 100 decided January 15,
 1982, in which the Authority upheld the decision of the Administrative
 Law Judge, that violation of Sections 7116(a)(1) and (5) occurred when
 an agency refused to furnish certain information to a union, but noted
 that the right to the information derives from Section 7114(b)(4), and
 not 7114(a)(1), as had been found by the Administrative Law Judge.  The
 Authority appears to be holding that any request for information must
 meet Section 7114(b)(4) standards, under the Statute.
 
    Accordingly, paragraph 9(a) should be stricken from the complaint.
 
    5.  National-level requests and charges
 
    Findings 32-38 are made because Respondent, at the hearing, argued
 some sort of estoppel because, at the national level, the Charging Party
 withdrew unfair labor practice charges based on a refusal to supply the
 same information here involved.  See TR 60-61.  Respondent does not
 pursue the point in its brief.  And Respondent adequately explained why
 those charges were withdrawn.  See finding 37, above.  No estoppel
 principle is applicable.
 
    The parties raise a number of other issues, all of which have been
 considered.  However, resolution of them would only extend this
 decision, without altering the conclusions reached.  Accordingly,
 judicial restraint is deemed appropriate;  and such issues will not be
 reached.
 
                        Ultimate Findings and Order
 
    By its refusal to provide information to the Charging Party, pursuant
 to requests made under Section 7114(b)(4), Respondent has violated
 Sections 7116(a)(1), (5), and (8) of the Federal Service
 Labor-Management Relations Statute.
 
    Accordingly, it is ORDERED, pursuant to 5 U.S.C. 7118(a)(7)(A) (Supp.
 III. 1979) and the Rules and Regulations of the Federal Labor Relations
 Authority, 5 CFR 2423.29(b)(1), that paragraph 9(a) be stricken from the
 complaint and that the Department of Health and Human Services, Social
 Security Administration, Field Assessment Office in Atlanta, Georgia:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing to provide to the American Federation of
 Government Employees, AFL-CIO, those portions of any available 1980
 reports on the travel practices of the five satellite offices of the
 Atlanta, Georgia, Field Assessment Office, which contain factual
 findings.
 
    (b) In any like or related manner, violating Sections 7116(a)(1),
 (5), and (8) of the Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action:
 
    (a) Upon request, provide to the American Federation of Government
 Employees, AFL-CIO, those portions of any available 1980 reports on the
 travel practices in the five satellite offices of the Atlanta, Georgia,
 Field Assessment Office, which contain factual findings.
 
    (b) Post, at the Atlanta, Georgia, Field Assessment Office, copies of
 the attached notice marked "Appendix," on forms to be furnished by the
 Federal Labor Relations Authority.  Upon receipt of such forms, they
 shall be signed by the Director and posted and maintained for 60
 consecutive days thereafter, in conspicuous places, including all
 bulletin boards and other places where notices are customarily posted.
 Reasonable steps shall be taken to ensure that said notices are not
 altered, defaced, or covered by any other material;  and
 
    (c) Notify the 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.
                                       ISABELLE R. CAPPELLO
                                       Administrative Law Judge
 
 Dated:  March 25, 1982
 
          Washington, D.C.
 
                                 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
 STATUTE We Hereby Notify Our Employees That:
 
 WE WILL NOT fail or refuse to provide to the American Federation of
 Government Employees, AFL-CIO, those portions of any available 1980
 reports on the travel practices of the five satellite offices of the
 Atlanta, Georgia, Field Assessment Office, which contain factual
 findings.  WE WILL NOT, in any like or related manner, violate Sections
 7116(a)(1), (5), and (8) of the Federal Service Labor-Management
 Relations Statute.  WE WILL, upon request, provide to the American
 Federation of Government Employees, AFL-CIO, those portions of any
 available 1980 reports on the travel practices in the five satellite
 offices of the Atlanta, Georgia, Field Assessment Office, which contain
 factual findings.
                                       (Agency or Activity)
 
 Dated:  . . .  BY:  (Signature) 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 any of its
 provisions, they may communicate directly with the Regional Director of
 the Federal Labor Relations Authority, Region 4, whose address is:  1776
 Peachtree Street, N.W., Suite 501 - North Wing, Atlanta, Georgia, 30309;
  and whose telephone number is:  (404) 881-2324.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The pertinent statutory provisions follow:
 
          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;  . . . (or)
 
          (8) to otherwise fail or refuse to comply with any provision of
       this chapter.
 
          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/ The following abbreviations will be used in this decision when
 referring to the record.  "TR" refers to the transcript.  "REx" refers
 to the exhibits of Respondent, "GCEx" to those of the General Counsel,
 and "UEx" to those of the Un