26:0108(13)CA - NLRB and NLRBU Local 6 -- 1987 FLRAdec CA

[ v26 p108 ]
The decision of the Authority follows:

 26 FLRA No. 13
 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,
    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
    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
    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: