26:0108(13)CA - NLRB and NLRBU Local 6 -- 1987 FLRAdec CA
[ v26 p108 ]
The decision of the Authority follows:
26 FLRA No. 13 NATIONAL LABOR RELATIONS BOARD Respondent and NATIONAL LABOR RELATIONS BOARD UNION, LOCAL 6 Charging Party Case No. 2-CA-50471 DECISION AND ORDER I. Statement of the Case This unfair labor practice case is before the Authority under section 2429.1(a) of the Authority's Rules and Regulations based upon a stipulation of facts entered into by the Respondent, the Charging Party, and the General Counsel. The General Counsel and the Respondent have filed briefs. The complaint alleges that the Respondent violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to furnish to the Charging Party information which is normally maintained in the regular course of business and which is reasonably available and necessary for full and proper understanding and negotiation of subjects within the scope of collective bargaining. Specifically, the Union sought data to represent a unit employee in connection with a grievance. II. Background The National Labor Relations Board Union (the NLRBU) is the exclusive representative for a consolidated nationwide unit of the Respondent's employees, including full-time and regular part-time professional employees in the Respondent's Regional Offices. NLRBU Local 6, the Charging Party (Union), has been delegated authority by the NLRBU to process the request for information which is at issue. In January 1985, employee Mary Theresa Enyart, of the Respondent's Pittsburgh Regional Office, submitted a request to work a part-time schedule to the Regional Director. The Regional Director prepared memoranda on the request for the Respondent's Assistant General Counsel, who was responsible for acting on the employee's request. The Regional Director's memoranda included a recommendation that the employee's request be denied. Following review of the employee's request and the Regional Director's memoranda, and discussions with higher management officials, the Assistant General Counsel denied the request. The information in the memoranda was used in management's internal deliberative process. The Respondent considered the information essential in making its decision on whether to grant the employee's request to work a part-time schedule. The decision was communicated to the Regional Director and the employee by the Assistant General Counsel in a letter dated March 8, 1985. On March 15, 1985, in order to evaluate a prospective grievance, the Union asked the Respondent to furnish workload data for the Pittsburgh Region and a copy of the Regional Director's recommendation on the part-time work request. The Respondent furnished the workload data, but refused to furnish a copy of the Regional Director's recommendation. Thereafter, the Union filed a written grievance on the employee's behalf, asserting, among other things, that the Regional Director had expressed personal hostility toward part-time work schedules in meetings with the employee and that the Respondent's denial of the work schedule request reflected a failure to appreciate and give deference to the purposes of the Federal Employees Part-Time Career Employment Act of 1978. After the Respondent denied the grievance at step two of the grievance procedure, in June 1985, the Union repeated its request for a copy of the Regional Director's recommendation. The Respondent refused this request in August 1985, after denying the grievance at the third step. The unfair labor practice charge was filed on August 23, 1985, and was amended on October 9, 1985. The General Counsel issued the complaint on December 23, 1985. The Respondent and the Union have agreed to extend the time limit for referring Enyart's grievance to arbitration pending resolution of this case. The parties stipulate that the document sought, the Regional Director's recommendation, is normally maintained in the regular course of business, is reasonably available, and that disclosure of the memorandum is not prohibited by law. /1/ III. Positions of the Parties The General Counsel argues that the Regional Director's recommendation constitutes data which is necessary, within the meaning of section 7114(b)(4)(B) of the Statute, for the Union to perform its representational responsibilities in evaluating and processing the employee's pending grievance. The General Counsel also argues that information requested by the Union does not constitute guidance, advice, counsel, or training for management officials or supervisors relating to collective bargaining within the meaning of section 7114(b)(4)(C). Noting the parties' stipulation that the recommendation is normally maintained by the Respondent in the regular course of business and that its disclosure is not prohibited by law, the General Counsel contends that the Respondent's refusal to furnish the Regional Director's recommendation constitutes a refusal to comply with section 7114(b)(4) as alleged in the complaint. The Respondent argues that since the Union has received a copy of the Respondent's written decision on the work schedule request, the Regional Director's recommendation is not necessary and relevant for the Union's processing of the grievance. The Respondent also argues that the recommendation constitutes guidance, advice, counsel, or training for management officials or supervisors relating to collective bargaining. Finally, the Respondent argues that release of the Regional Director's recommendation is prohibited because release would interfere with management's deliberative process concerning the exercise of management's right to assign work under section 7106(a)(2)(B) in denying the work schedule request. Based on these arguments, the Respondent contends that it was not obligated to furnish the recommendation to the Union under section 7114(b)(4) and, therefore, that the complaint should be dismissed. IV. Analysis and Conclusions On the basis of the arguments of the Respondent, we must determine in this case whether the Respondent was obligated under section 7114(b)(4) to release of a copy of the Regional Director's recommendation. For the reasons which follow, we conclude that release of the recommendation would constitute an interference with management's deliberative process which is prohibited by section 7106 of the Statute. Therefore, we conclude that release of the information is prohibited from disclosure under section 7114(b)(4). In National Federation of Federal Employees, Local 1431 and Veterans Administration Medical Center, East Orange, New Jersey, 9 FLRA 998 (1982), the Authority held nonnegotiable a proposal which required union representation on committees established by management to review, to make recommendations, and to take action with respect to the exercise of management's right to assign work and other matters. The proposal conflicted with section 7106 by allowing the union to interject itself into management's decision making process. As a result the proposal prevented management officials from engaging in the free and open deliberations among themselves which are an essential part of management's right to make decisions under section 7106. The Authority distinguished that proposal from proposals which merely ensured union input into a final agency decision while preserving the integrity of the process by which management reaches that decision. 9 FLRA at 1002-03. Similarly, in American Federation of Government Employees, AFL-CIO, Local 2302 and U.S. Army Armor Center, Ft. Knox, Kentucky, 15 FLRA 17 (1984) (proposal 2), a proposal which required an observer to be present in the development or revision of measures of performance was found to conflict with section 7106. The Authority concluded that regardless of whether the role of the observer was active or passive, the observer's presence would interfere with the agency's right to freely engage in internal discussion and deliberation prior to making decisions to take actions under section 7106. For the same reasons we held nonnegotiable a proposal in American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA No. 104 (1986) (proposal 3), which required that an employee be notified by management of certain management inquiries regarding the assignment of work to the employee. We found that the proposal required management to provide the employee with information as to internal management discussions and deliberations by a union or an employee results in a prohibited impact on management's decision making: "(A)n outside party is interjected into, and acquires knowledge of, management's internal decisionmaking process." Slip op. at 7. No reason has been shown and none is otherwise apparent to us which prevents these principles from applying equally under section 7114(b)(4) when the requested information involves management's internal decision making and deliberative process concerning the exercise of a management right under section 7106. Information requested under section 7114(b)(4) can be furnished only "to the extent not prohibited by law." Here we find that the information requested would improperly interject the Union into and give it access to management's internal decision making process involving decisions to take actions under section 7106. Specifically, we find that (1) the decision to deny the work schedule change is encompassed by management's right to assign work under section 7106(a)(2)(B), and (2) the Regional Director's internal management recommendation was part of management's deliberative process. Accordingly, we conclude that disclosure of the details of that recommendation is "prohibited by law" within the meaning section 7114(b)(4). Consequently, the Respondent did not fail to comply with section 7114(b)(4) in violation of section 7116(a)(1), (5), and (8) as alleged, and we will dismiss the complaint. /2/ In view of our conclusion, it is unnecessary to reach the Respondents other arguments. V. Order The complaint in 2-CA-50471 is dismissed. Issued, Washington, D.C., March 10, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) Section 7114(b)(4) provides: (b) The duty of an agency and an exclusive representative to negotiate in good faith . . . 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; (C) which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining(.) (2) We note the parties' stipulation that "Respondent is not prohibited by law from furnishing the information to the Charging Party." In view of the Respondent's arguments, it is obvious that this stipulation was not meant by the parties to encompass the basis on which we have decided this case.