12:0390(84)CA - HHS, SSA, Field Assessment Office and AFGE -- 1983 FLRAdec CA
[ v12 p390 ]
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 Union. "RBr" refers to the brief of the Respondent, and "GCBr" to that of the General Counsel.