30:0127(19)CA - Commerce, NOAA, National Weather Service, Silver Spring, MD and National Weather Service Employees Organization, MEBA -- 1987 FLRAdec CA



[ v30 p127 ]
30:0127(19)CA
The decision of the Authority follows:


30 FLRA No. 19

DEPARTMENT OF COMMERCE
NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION
NATIONAL WEATHER SERVICE
SILVER SPRING, MARYLAND

                    Respondent

      and

NATIONAL WEATHER SERVICE EMPLOYEES
ORGANIZATION, MEBA, AFL-CIO

                    Charging Party

Case No. 5-CA-50153

DECISION AND ORDER

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the General Counsel, the Charging Party (the Union), and the Respondent to the attached decision of the Administrative Law Judge. The complaint alleged that the Respondent violated section 7116(a)(1), (5) and (8) of the Federal Service Labor - Management Relations Statute (the Statute) by refusing to provide the Union with documents which the Union requested pursuant to section 7114(b)(4) of the Statute.

We conclude that the Respondent violated the Statute by refusing to furnish information which was necessary for the Union to effectively represent a bargaining unit employee and which was not otherwise exempt from disclosure under section 7114(b)(4), specifically: (1) a memorandum dated November 8, 1984, from Mr. Jack R. Cooley to Mr. Bart Hynes, concerning a meeting with Mr. Roger Galloway; (2) a memorandum dated November 23, 1984, from Mr. Carl H. Eschbacher to Mr. Hynes concerning the same meeting; and (3), if it exists, a memorandum dated on or about January 7, 1985, from Mr. Hynes to Mr. Robert Wassall, reporting a disciplinary action against [PAGE] Mr. Galloway. If the latter memorandum does not exist, we conclude that the Respondent violated the Statute by failing to so inform the Union. However, we also conclude that the Respondent did not violate the Statute by failing to furnish the Union with a memorandum from Mr. Joe Verebelyi to Mr. Eschbacher concerning the meeting with Mr. Galloway, because the information in that memorandum was exempt from disclosure under section 7114(b)(4)(C) of the Statute.

II. Facts

Roger Galloway, an employee in the Respondent's Weather Service Office in Muskegon, Michigan, who was also the Chairman of the Union's Central Region, represented the Union at an arbitration hearing at the Respondent's facility in Grand Rapids, Michigan. After the hearing, Galloway informed the manager of the Grand Rapids facility, Jack Cooley, of a new problem. A heated argument occurred in Cooley's office involving Galloway, Cooley and Angela Thomas, a Personnel Specialist from the Respondent's Central Administration Support Center (CASC). Galloway indicated during the argument that he was filing a grievance concerning the new problem.

Some days later, Cooley wrote a memorandum to Galloway's supervisor in Muskegon, Bart Hynes, describing the incident. Additionally, Thomas' supervisor, Carl Eschbacher, Chief of the Personnel Branch, also wrote a memorandum to Hynes describing Thomas' version of the incident for Hynes' consideration as Galloway's supervisor.

Subsequently, Hynes had two meetings with Galloway. At the first, Hynes informed Galloway that he had been told to take some action against Galloway for his conduct during the incident in Grand Rapids. He permitted Galloway to read the memoranda from Cooley and Eschbacher. Galloway responded that those accounts of the incident were erroneous. In his capacity as Chairman of the Union's Central Region, Galloway then wrote to the Director of the Respondent's Central Region requesting copies of the memoranda under section 7114(b) of the Statute for the purpose of investigating and possibly filing an unfair labor practice (ULP) charge. The Regional Director denied this request on the ground that there was no obligation under the Statute to provide the information for the purpose stated by Galloway. [ v30 p2 ]

Between the first and second meetings between Hynes and Galloway, the CASC Labor Relations Officer, Joe Verebelyi, wrote a memorandum to Eschbacher concerning possible actions that might be taken by Hynes concerning the incident in Grand Rapids and recommending that no disciplinary action be taken against Galloway. At the second meeting, Hynes informed Galloway that although he had been instructed to suspend Galloway, he would only counsel him and would so inform the Regional Office. Galloway replied that he intended to file a grievance or an unfair labor practice charge. The next day Hynes showed Galloway a draft of a memorandum to the Regional Director reporting that he had counseled Galloway. Hynes later told Galloway that he had sent the memorandum. He also told Galloway that the memorandum would not be part of his personnel file because it reflected only an oral reprimand.

After this discussion, Galloway prepared and mailed another request for information under section 7114 (b) of the Statute to the Regional Director, repeating his earlier request for copies of the two memoranda from Cooley and Eschbacher and also requesting copies of any and all correspondence between Hynes and CASC personnel and other officials concerning any proposed action against him for the incident in the Grand Rapids office. The Respondent did not reply to this request and later claimed that the request was never received.

The Union filed an unfair labor practice charge and the General Counsel issued a complaint, alleging that the Respondent violated section 7116(a)(1), (5) and (8) of the Statute when it refused to furnish the Union with the information sought in Galloway's requests.

Prior to the hearing before the Administrative Law Judge, the General Counsel issued a subpoena, under section 2429.7(a) of the Authority's Rules and Regulations, requiring the production of the documents Galloway sought. The Respondent did not comply with the subpoena, but, rather, filed a petition to revoke the subpoena with the Authority's Regional Director under section 2429.7(e) of the Rules and Regulations. The Regional Director transferred the petition to the Judge for a ruling. The Respondent provided the Judge with copies of the memoranda from Cooley and Eschbacher and the memorandum from the Labor Relations Officer to Eschbacher for in camera review by the Judge to enable him to rule on its petition. [ v30 p3 ]

III. Administrative Law Judge's Decision

A. The General Counsel's Subpoena

In the proceeding before the Judge, the Respondent argued that the documents it had provided to the Judge constituted intramanagement advice and guidance and, therefore, that the documents were exempt from disclosure under the subpoena provisions of the Authority's Rules and Regulations. The Respondent also maintained that based on the results of a search of its files, the memorandum from Hynes to the Respondent's Regional Director, the draft of which Hynes had shown to Galloway, did not exist. The General Counsel argued that the Respondent was required to comply with the subpoena because the documents were the best evidence to establish whether or not they were exempt.

In ruling on the Respondent's petition to revoke the subpoena, the Judge determined that the memoranda from Cooley and Eschbacher to Hynes should be produced as evidence in the case as they were essentially nothing more than accounts of the incident in Grand Rapids. The Judge further determined that the memorandum from Verebelyi to Eschbacher and the attachment to that memorandum need not be produced since those documents concerned intramanagement guidance on labor relations matters. As to the memorandum from Hynes to the Respondent's Regional Director concerning the counseling of Galloway, the Judge determined that if such a document exists, it too should be produced.

The Respondent maintained that it would continue to refuse to comply with the subpoena and that the General Counsel would have to obtain enforcement of the subpoena in a United States District Court. At the request of the General Counsel, the Judge then denied the Respondent's petition to revoke the subpoena so that the General Counsel could seek enforcement. The Judge also granted a motion of counsel for the Union directing the Respondent to make the documents available to counsel for the Union and counsel for the General Counsel under a protective order, namely, an order that counsel not divulge the contents of the documents and that they use the documents only in the proceedings in the case. The Respondent refused to produce the documents under such order. The Judge then granted the General Counsel's request to adjourn the hearing to enable the General Counsel to determine whether to seek court enforcement of the subpoena. [ v30 p4 ]

The General Counsel decided not to institute enforcement proceedings. Rather, the General Counsel requested the Judge to impose certain sanctions against the Respondent for refusing to either produce the documents or permit review of the documents under the Judge's protective order. Specifically, the General Counsel argued that the Respondent had forfeited its right to examine witnesses regarding matters that were provable by the withheld documents and requested that the Judge strike the Respondent's cross-examination of Galloway concerning the documents and the direct examination of Cooley and Thomas regarding the Grand Rapids incident and the memoranda on the subject.

The General Counsel and the Union also requested that the Judge draw certain adverse inferences from the Respondent's conduct, namely, that the disputed documents were necessary for the Union's representational purposes and not exempt from disclosure under section 7114(b)(4)(C) of the Statute. The Union also contended that the Respondent had waived any right to withhold the documents by eliciting testimony regarding the content of the documents. The Respondent asserted that the General Counsel's failure to seek enforcement of the subpoena warranted a negative inference by the Judge that any documents obtained through enforcement proceedings would have been adverse to the General Counsel's position in the case.

In ruling on those requests, the Judge found that while it is common practice in the private sector for judges to draw inferences adverse to a litigant who fails to produce evidence which is within its control, relevant in the proceeding and not subject to any claim of privilege, in this case the Respondent claimed that the documents were exempt from disclosure under the Statute. In that regard, the Judge indicated that his in camera review of the documents established that there was some basis for the Respondent's claim. The Judge further found that unlike private sector cases where the issue of disclosure of evidence was a collateral issue, in this case the question of whether or not the documents sought are exempt from disclosure is the central issue. The Judge found that disclosure, even to counsel for the General Counsel and the Union under a protective order, was not without risk to the statutory right asserted by the Respondent and that the claimed confidentiality of the documents might be compromised by disclosure to the other parties. The Judge further stated that he was without explicit authority to discipline a party for breach of a protective order. [ v30 p5 ]

The Judge denied the requests of the General Counsel and the Union that he impose sanctions against the Respondent. The Judge likewise rejected the Respondent's request that he draw an adverse inference from the General Counsel's determination not to seek court enforcement of the subpoena. The Judge also rejected the Union's argument that the Respondent had waived any right to withhold the documents in dispute by eliciting testimony regarding their content.

B. The Respondent's Obligation Under Section 7114(b)(4)

On the merits of the Union's request for the documents under section 7114(b)(4) of the Statute, the Judge first noted with respect to the documents provided for in camera review that the Respondent admitted that they are normally maintained in the regular course of business and are reasonably available within the meaning of section 7114(b)(4).

The Judge concluded that the memoranda to Hynes from Cooley and Eschbacher concerning the meeting with Galloway in Grand Rapids were "necessary" within the meaning of section 7114(b)(4)(B) for the Union to discharge its duty to represent him and, further, that those memoranda were not exempt from disclosure under section 7114(b)(4)(C). The Judge rejected the Respondent's argument that it was not obligated to provide the information because of Galloway's stated purpose that he wanted the information for possibly filing an unfair labor practice charge. The Judge found that Galloway's stated purpose was ambiguous and did not preclude the possibility of filing a grievance in the matter. The Judge noted that Galloway had not made an election of possible remedies when he requested the documents and, further, that he had informed his supervisor that he might file a grievance. The Judge also found that Galloway had reason to believe that he might be disciplined because of his representational activities and he had a need to know what information had been assembled against him to decide whether to grieve and how to counter the information should he decide to grieve.

In addition, the Judge found that the Union was entitled to the memoranda under section 7114(b)(4) for the purpose of determining whether to seek a remedy through unfair labor practice procedures. In that regard, the Judge rejected the Respondent's argument that it was not required to disclose information to the Union relevant to a ULP proceeding, and found that while discovery is unavailable under ULP procedures after a charge has been filed, it does not follow that a union is not entitled to information under section 7114(b)(4) that is necessary in deciding whether to file a charge. [ v30 p6 ]

The Judge also rejected the Respondent's argument that Galloway did not need the memoranda because he was involved in the Grand Rapids incident and did not need management's accounts of the incident to know what occurred. The Judge found that management's versions of the incident constituted information necessary for deciding whether and to what extent the Union should contest the imposition of discipline against Galloway.

The Judge further found that the reports to Hynes from Cooley and Eschbacher did not contain intramanagement guidance, advice or counsel and, therefore, that the reports were not exempt from disclosure under section 7114(b)(4)(C) of the Statute.

As to the memorandum from Labor Relations Officer Verebelyi to Eschbacher, the Judge found that this document contained the Labor Relations Officer's assessment of the incident and his deliberation or thought processes as well as his recommendations concerning an appropriate management response. The Judge concluded that this document constituted intramanagement guidance relating to collective bargaining and, therefore, was exempt from disclosure under section 7114(b)(4)(C).

As to the memorandum from Hynes to his Regional Director confirming his oral admonishment or counseling of Galloway, which memorandum Galloway saw in draft form and which the Respondent claims could not be found, the Judge found that the memorandum as described by Galloway was very brief, that Galloway fully understood the content and that the Union was in possession of the information it contained. The Judge concluded that the memorandum was not necessary for the Union to represent Galloway.

In summary, the Judge concluded that the Respondent failed to comply with section 7114(b)(4) of the Statute in violation of section 7116(a)(1), (5) and (8) by refusing the Union's requests for the memoranda to Hynes from Cooley and Eschbacher; that the Respondent did not violate the Statute by refusing to furnish the Union with the memorandum from Verebelyi to Eschbacher because that document was exempt from disclosure under section 7114(b)(4)(C); and that the Respondent did not violate the Statute by failing to furnish the memorandum from Hynes to the Regional Director because that information was not necessary for a full and proper discussion of subjects within the scope of collective bargaining. [ v30 p7 ]

IV. Positions of the Parties

A. The General Counsel's Subpoena

1. The General Counsel's Position

The General Counsel excepts to the Judge's denial of its request that sanctions, particularly adverse inferences, be imposed against the Respondent for refusal to produce the required documents. The General Counsel argues that imposition of sanctions for a party's refusal to produce relevant documents pursuant to a subpoena is well established in the private sector and that drawing an adverse inference from a party's refusal to disclose evidence under its control has risen to the level of a requirement under the National Labor Relations Act (NLRA). The General Counsel further argues that imposition of sanctions is a remedy available to an administrative agency even when the agency has the power to seek judicial enforcement of its orders because enforcement procedures are cumbersome and time-consuming. The General Counsel maintains that sanctions are a quick, fair and effective method of dealing with a recalcitrant party.

2. The Union's Position

The Union also excepts to the Judge's determination not to impose sanctions against the Respondent for refusing to comply with the subpoena. The Union first argues that the Judge was without authority to consider evidence which cannot be shared by all the parties in the proceeding. The Union maintains that the case should have been adjudicated without the documents the Respondent furnished the Judge for in camera review. The Union argues that the documents should have been provided to counsel for the Union and the General Counsel under a protective order, or the documents should not have been accepted by the Judge and an adverse inference should have been drawn from the Respondent's refusal to produce the documents.

The Union further argues that the documents constituted an ex parte communication with the Judge prohibited under the Authority's ULP procedures and the Administrative Procedure Act because the documents were not also served on the other parties in the proceeding. The Union also argues that the Judge's concern for the confidentiality of the documents did not justify accepting them for in camera review. The Union contends that the confidentiality of the allegedly privileged documents could have been maintained by the Judge's protective order and that the Authority has the power to effectively [ v30 p8 ] enforce such an order. The Union further contends that the Judge erred in determining that his consideration of the documents in camera without the assistance and argument of counsel for the General Counsel or the Union was fair, based on his conclusion that a judge is in a good position to decide whether a document contains intramanagement guidance or advice. The Union asserts that the Judge's conclusion is at odds with his finding that this case is one of first impression.

Additionally, the Union alleges that sanctions for the Respondent's refusal to comply with the subpoena are warranted and necessary to maintain the integrity of the Authority's adjudicatory proceedings. The Union argues that without sanctions a party served with a subpoena has no incentive to comply and perhaps an incentive to refuse to comply. Moreover, the Union asserts that based on practice in the private sector a negative inference must be drawn from a refusal to comply with a subpoena unless there are sound reasons for not doing so. The Union maintains that without sanctions, Administrative Law Judges and the Authority would have to rely solely on the testimony of management witness concerning the content of documents requested in section 7114(b)(4) cases. The Union contends that such evidence is self-serving and would be unreliable because there would be no way to effectively challenge the testimony.

3. The Respondent's Position

The Respondent contends that the Judge appropriately exercised his discretion in denying the General Counsel's and the Union's requests for sanctions. The Respondent argues that private sector cases are not controlling in disputes before the Authority. Further in that regard, the Respondent argues that the facts in this case are distinguishable from the facts in the private sector cases relied upon by the General Counsel and the Union. The Respondent asserts that the sanctions required in the private sector cases resulted from egregious conduct not present here and, in further contrast, that it provided the requested documents to the Judge for review. Additionally, the Respondent argues that unlike proceedings of the National Labor Relations Board (NLRB) under the NLRA, under section 7118(a)(6) of the Statute the Federal rules of evidence do not apply in Authority ULP proceedings. The Respondent contends that unlike the NLRB, the Authority is free to permit its Administrative Law Judges to follow the more general practice of exercising discretion in determining whether, how and when [ v30 p9 ] to impose sanctions. The Respondent argues that the Judge did not depart from any Authority precedent and did not abuse his discretion in this case.

Moreover, the Respondent agrees with the Judge that there are serious practical problems associated with the open disclosure of documents while an agency seeks to vindicate its claim that the documents are protected under the Statute. The Respondent asserts that it made a sincere effort to cooperate in the proceeding and that the Judge correctly determined that the sanctions requested by the General Counsel and the Union were inappropriate.

B. The Respondent's Obligation Under Section 7114(b)(4)

1. The General Counsel's Position

The General Counsel first excepts to the Judge's interpretation of section 7114(b)(4)(C) of the Statute. The General Counsel claims that the Judge erred in rejecting its argument that section 7114(b)(4)(C) is concerned only with guidance, advice, counsel or training which directly relates only to the process of collective bargaining, that is, fashioning proposals for negotiations and evaluating proposals. The General Counsel takes the position that section 7114(b) (4)(C) does not exempt intramanagement guidance related to matters other than negotiations.

The General Counsel also excepts to the Judge's determination that the Union was not entitled to the memorandum from Labor Relations Officer Verebelyi to Eschbacher concerning the possible discipline of Galloway, or to the memorandum from Hynes to the Regional Director concerning his admonishment or counseling of Galloway. As to the memorandum from the Labor Relations Officer, the General Counsel argues that the document was necessary for the Union to make an informed decision concerning possible avenues of redress and that it was not exempt from disclosure under the General Counsel's interpretation of 7114(b)(4)(C). As to the memorandum from Hynes, the General Counsel disagrees with the Judge's conclusion that the document was not necessary because it was brief and the Union knew of its content and impact. The General Counsel maintains that the Judge's finding concerning the brevity of the document was based on conjecture and that the Union needed the actual document to use as evidence in a possible proceeding or for other possible representational purposes. [ v30 p10 ]

2. The Union's Position

The Union also excepts to the Judge's conclusion that under section 7114(b)(4) the Union was not entitled to the memorandum from Labor Relations Officer Verebelyi to Eschbacher or to the memorandum from Hynes to the Regional Director. As to the memorandum from Verebelyi, the Union makes essentially the same arguments as the General Counsel.

As to the memorandum from Hynes to the Regional Director concerning the admonishment or counseling of Galloway, the Union contends that the Judge erred in concluding that the document was not necessary for the Union to represent Galloway. The Union argues that on the contrary, the document was essential to prove that Galloway was disciplined in reprisal for his conduct as a representative during the grievance meeting in Grand Rapids. The Union further argues that no other record of Hynes' action apparently exists. In addition, the Union notes that Galloway was shown only a draft of the memorandum and does not know the contents of the final version. With regard to the Respondent's assertion at the hearing that the document could not be found, the Union points out that the Respondent did not provide any witness to rebut Galloway's testimony that Hynes showed him a draft of the memorandum and told him that a final version had been sent to the Region. The Union also notes that the Respondent objected to the Union's request that Hynes be called to testify as a witness. The Union maintains that in the absence of any evidence contrary to Galloway's testimony, the Authority should assume that the document exists and order its production.

3. The Respondent's Position

The Respondent contends that the Judge erred in finding that it violated the Statute by failing to provide the Union with the memoranda to Hynes from Cooley and Eschbacher. The Respondent argues that the Union was not entitled to the documents under the Statute for a number of reasons. First, the Respondent maintains that it had no duty to furnish the documents because the Union unambiguously requested them for the purpose of investigating and possibly filing an unfair labor practice charge. The Respondent asserts that the Union is therefore limited to rights under ULP procedures. Further in that regard, the Respondent asserts that the Union has no right under ULP procedures to discovery of the documents at the investigation stage of a ULP and that section 7114(b)(4) does not create an independent right of discovery in a ULP beyond those procedures. [ v30 p11 ]

The Respondent also contends that the memoranda sought by the Union were protected from disclosure because the information in those documents was not necessary within the meaning of section 7114(b)(4) since the Union already knew the facts of the incident in Grand Rapids. The Respondent also asserts that the memorandum from Cooley to Hynes contained intramanagement guidance and that the memorandum from Eschbacher to Hynes should be protected from disclosure under section 7114(b)(4) as part of the deliberative process that involved intramanagement guidance. The Respondent further argues that the Judge erred in considering Galloway's second request, because the Union offered no proof of delivery and that it offered credible evidence to establish that the memorandum was not received.

V. Analysis and Conclusions

A. The General Counsel's Subpoena

We have carefully considered the Judge's ruling and the submissions of the parties on this issue. We conclude that the Judge was not required to impose the sanctions requested by the General Counsel and the Union against the Respondent for refusal to comply with the General Counsel's subpoena. Rather, we find that the matter of sanctions, including possible adverse inferences for a party's failure to comply with a subpoena, is within the discretion of the Administrative Law Judge presiding in the case, subject, of course, to review by the Authority on timely filed exceptions. In this case, the Judge had the discretion to strike the testimony elicited by the Respondent concerning the documents it had refused to produce and the discretion to draw inferences adverse to the Respondent's position concerning those documents as requested by the General Counsel and the Union. However, we conclude that the Judge did not abuse that discretion by determining not to impose such sanctions.

In reaching that conclusion, however, we specifically reject the Respondent's argument that the Respondent was not required to comply with the subpoena because the documents required to be produced under the subpoena were also the documents central to the merits of the section 7114(b)(4) dispute. Such argument is totally without merit. As the Union points out, there is authoritative support for the conclusion that a party may be ordered to produce subpoenaed documents, which are allegedly privileged, under a protective order limiting disclosure and use of the documents as evidence [ v30 p12 ] in the particular proceeding. Exxon Corp. v. Federal Trade Commission, 665 F.2d 1274 (D.C. Cir. 1981). A party should not be permitted to foreclose review and argument concerning relevant and material evidence in a case by simply asserting that the evidence is exempt or privileged, and thereby also foreclose litigation of its position.

However, in agreement with the Judge, we find that in view of the Respondent's limited compliance with the subpoena in this case, that is, producing the documents for the Judge's in camera review, that the Respondent was not so completely uncooperative and defiant that sanctions are demanded in the case in the interest of justice. Moreover, we find that the documents were adequately and accurately described by the Judge for counsel for the General Counsel and the Union so that the denial of the requests for sanctions did not constitute prejudicial error.

We also reject the Union's assertion that the documents the Respondent provided to the Judge for in camera review constituted a prohibited ex parte communication. The Authority previously has adopted an Administrative Law Judge's determination that the presentation of documents to a Judge for in camera inspection is not tantamount to a prohibited ex parte communication. Army and Air Force Exchange Service (AAFES), Fort Carson, Colorado, 17 FLRA 625, 635-36 n.2 (1985), reversed in part on other grounds sub nom. AFGE Local 1345 v. FLRA, 793 F.2d 1360 (D.C. Cir. 1986). We likewise find that the Respondent's presentation of the documents described was not a prohibited ex parte communication.

In concluding that the Judge did not err by deciding not to impose sanctions against the Respondent, we are mindful of the reluctance of courts to permit in camera review. Courts discourage in camera review of documents primarily because it is conducted without the benefit of critical examination and illumination by an opposing party with actual interest in forcing disclosure of the documents. For example, Vaughn v. Rosen, 484 F.2d 820, 825 (D.C. Cir. 1973). We also discourage the use of in camera review of documents in Authority proceedings for the same reason.

We note again, however, that the Judge minimized the effect of the Respondent having provided the documents sought only for in camera review by adequately and accurately describing and clarifying the content of the documents so as to provide for meaningful, although limited, direct and cross-examination and argument as to each. Accordingly, in the [ v30 p13 ] particular circumstances of this case, we affirm the Judge's ruling on the requests of the General Counsel and the Union for sanctions.

B. The Respondent's Obligation Under Section 7114(b)(4)

Section 7114(b)(4) of the Statute requires an agency to furnish an exclusive 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.

Section 7114 (b) (4) covers information which meets the conditions set forth in subsections (A) and (B) and which is not exempted under subsection (C) or otherwise prohibited by law from disclosure.

It is uncontested that the memoranda from Cooley and Eschbacher to Hynes and the memorandum from Labor Relations Officer Verebelyi to Eschbacher are "normally maintained" and "reasonably available" within the meaning of section 7114(b) (4)(A) and (B). These are the documents the Respondent provided to the Judge for in camera review. The issues raised by the exceptions as to those documents are: (1) whether the memoranda from Cooley and Eschbacher are "necessary" under section 7114(b)(4)(B) and, if so, whether they constitute "guidance . . . for management officials or supervisors" under section 7114(b)(4)(C) and are therefore exempt from disclosure; and (2) whether the memorandum from Verebelyi to Eschbacher is exempt from disclosure as "guidance . . . for management officials or supervisors" under section 7114(b)(4)(C).

There is also a question presented as to whether a requested memorandum from Hynes to his Regional Director is "normally maintained" and "reasonably available" and, if so, whether the Respondent is otherwise required to furnish the Union with this document under section 7114(b)(4). [ v30 p14 ]

1. The Memoranda to Hynes from Cooley and Eschbacher

Under section 7114(b)(4) of the Statute, an agency is required to furnish an exclusive representative of its employees, upon request and to the extent not prohibited by law, information that is reasonably available and necessary for the union to effectively carry out its representational functions and responsibilities. For example, Department of Defense Dependents Schools, Washington, D.C. and Department of Defense Dependents Schools, Germany Region, 28 FLRA 202 (1987). Moreover, it is clear that under section 7114(b)(4) a union has a right to information that is necessary for it to effectively represent an employee in connection with disciplinary action, id., and information that is necessary for the union to determine whether or not to file a grievance. Veterans Administration, Washington, D.C. and Veterans Administration Regional Office, Buffalo, New York, 28 FLRA 260 (1987).

In this case, Galloway, in his capacity as Union representative, first requested the information after his supervisor, Hynes, informed him that he had been instructed to suspend Galloway for alleged misconduct in the meeting in Grand Rapids. The Union's second request was submitted when Hynes informed Galloway that he was being orally reprimanded or counseled for this misconduct. Galloway therefore was disciplined or, at the least, was the subject of negative reports in the Respondent's records, based on Cooley's and Thomas' accounts of the incident as reflected in the disputed memoranda. Galloway testified that he feared that he would be adversely affected in performance appraisals and in future opportunities for promotion within the agency because the memoranda apparently have been circulated through various levels of management (Transcript at 60-61).

In these circumstances, we find that the memoranda from Cooley and Eschbacber, which precipitated the action against Galloway, were necessary to enable the Union: to assess the accuracy of Cooley's and Eschbacher's versions of the incident; to fully understand the basis for the reprimand or counseling action; to effectively evaluate the strengths or weaknesses of management's and Galloway's position in the matter; to determine whether to seek relief for Galloway in appropriate proceedings, including either unfair labor practice or grievance proceedings; and to effectively represent him in such proceedings. [ v30 p15 ]

In that latter regard, we reject the Respondent's arguments that, because the Union's request indicated that the information was sought for investigation and possible filing of an unfair labor practice charge, the Union was not entitled to the information under section 7114(b)(4) of the Statute. As indicated above, it is well established that an exclusive representative is entitled to information that is necessary for it to determine how to best represent an employee, including deciding whether to file a grievance on the employee's behalf. See, for example, VA Washington, D.C. and VA Regional Office, Buffalo, New York, 28 FLRA 260 (1987); Veterans Administration Central Office, Washington, D.C. and Veterans Administration Regional Office, Denver, Colorado, 25 FLRA 633 (1987); Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Omaha District, Omaha, Nebraska, 25 FLRA 181 (1987). An exclusive representative's determination whether to file a charge on behalf of an employee clearly is as much a representational function of a union under the Statute as determining whether to file a grievance on the employee's behalf under the grievance procedures of a collective bargaining agreement.

We, therefore, hold that a union's entitlement to information under section 7114(b)(4) extends to information that is necessary for the union to determine whether or not to file an unfair labor practice charge on behalf of an employee.

Moreover, in agreement with the Judge, we read the Union's request as seeking the memoranda in order to determine what, if any, appropriate representational action to take in the matter. Therefore, we also reject the Respondent's argument that the Union was not entitled to the information under the Statute because Galloway was at the meeting in Grand Rapids and knew the facts of the incident.

Finally, in agreement with the Judge, we find that the memoranda from Cooley and Eschbacher do not constitute guidance to management officials or supervisors within the meaning of section 7114(b)(4)(C). The memoranda are essentially factual statements concerning the meeting in Grand Rapids, which were forwarded to Hynes for his consideration.

We conclude that the Respondent was obligated under section 7114(b)(4) to provide the Union with copies of the requested memoranda and that it violated section 7116(a)(1), (5) and (8) of the Statute when it refused to do so. [ v30 p 16 ]

2. The Memorandum from Verebelyi to Eschbacher

We conclude, in agreement with the Judge, that the Union was not entitled to the memorandum from Labor Relations Officer Verebelyi to Eschbacher, the Chief of the Personnel Branch, under section 7114(b)(4).

The memorandum reflects the Labor Relations Officer's assessment of the incident involving Union representative Galloway, with its obvious labor-management relations implications. It also reflects his deliberation or thought process and his recommendations concerning an appropriate management response. We conclude that this document constitutes guidance, advice or counsel for management officials or supervisors, related to collective bargaining and, therefore, that the information is exempt from disclosure under section 7114(b)(4)(C) of the Statute.

3. The Memorandum from Hynes to the Respondent's Regional Director

We first find that the Union's request for this memorandum, which was covered by its second request for information addressed to the National Weather Service (NWS) Regional Director, was received by the Respondent. As a general proposition, a letter properly addressed, stamped and mailed is presumed to have been received in the ordinary course of mail. For example, Communications Workers of America, Local 11500, AFL - CIO, 272 NLRB 850, 851 n.3 (1984); Mark I Tune - Up Centers, Inc., 256 NLRB 898 (1981); Legill v. Dann, 544 F.2d I (D.C. Cir. 1976). Further, a general denial of receipt does not overcome the presumption. Thiele Tanning Company, 128 NLRB 19, n.3 (1960).

In this case, Galloway's unrebutted testimony was that he addressed, stamped and mailed the request to the Regional Director (Transcript at 58-59). The Judge found as a fact that Galloway mailed this request. The Regional Director, who had retired at the time of the proceeding before the Judge, declined the Respondent's request that he testify as a witness at the hearing. He did, however, sign an affidavit, which the Respondent introduced into evidence at the hearing, stating that he never received the second request. The Judge also found that the Labor Relations Specialist in the Respondent's Central Administration Support Center (NASC), who prepared the Respondent's reply to the Union's first request, credibly testified that he never received the request. [ v30 p17 ]

However, the Labor Relations Specialist also testified under cross-examination that the NWS and CASC have separate mail rooms in the Kansas City headquarters building and that he was not familiar with the NWS mail handling practices and procedures (Transcript at 100-101). He further testified that the NWS Deputy Regional Director was the "labor relations designate" for the NWS Central Region, that the Deputy handled all labor relations activities for the Regional Director, and that if the Union's request for information was not given to the Regional Director, it would have been given to the Deputy (Transcript at 102-103).

In these circumstances, where it was credibly established without rebuttal that the request was properly addressed, stamped and mailed to the Regional Director, a presumption is created that the request was received by the Respondent. Moreover, we find that the presumption was not overcome by the Respondent. The statements of the former NWS Regional Director and of the CASC Labor Relations Specialist that they personally did not receive the request do not establish that the request was not received in the NWS mailroom or by other agents of the Respondent. Testimony established that the NWS and CASC have separate mail rooms and mail handling practices. The Respondent did not present testimony concerning pertinent NWS mail procedures, or testimony by the Deputy Regional Director, an official apparently with significant labor relations responsibilities, whether he ever received the request. Moreover, counsel for the General Counsel and the Union did not have an opportunity to cross-examine the Regional Director concerning his denial of receipt of the request. We conclude that the presumption that the Union's second request was received was not overcome by the Respondent.

Next, we find, contrary to the Judge, that Union access to the memorandum from Hynes to his Regional Director concerning his counseling or admonishment of Galloway was necessary under section 7114(b)(4) for the Union to effectively represent him in the matter. The record establishes that Hynes showed Galloway a draft of a memorandum informing the Regional Director that Galloway had been counseled or orally reprimanded. Hynes referred to the action as an oral reprimand. Hynes later told Galloway that the memorandum had been sent to the Regional Director. Thus, it is clear that some formal action was taken against Galloway for his part in the incident in Grand Rapids. [ v30 p18 ]

In these circumstances, we find that a copy of the memorandum Hynes sent to the Regional Director was necessary for the Union to know the exact action that was taken by Hynes against Galloway and the stated basis for the action, to determine the most effective representational course of action (for example, whether to file an unfair labor practice charge or a grievance), and to effectively represent Galloway in such a proceeding. We conclude that the Respondent was obligated under section 7114(b)(4) to furnish the Union with a copy of the memorandum, if it was sent to the Regional Director and was reasonably available. If the information sought does not exist, section 7114(b)(4) requires an agency to respond to a request from an exclusive representative for information even if the response is that the information sought does not exist. See, for example, VA, Washington, D.C. and VA Regional Office, Buffalo, New York, 28 FLRA 260, 266-67.

VI. Summary

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing, find that no prejudicial error was committed, and affirm those rulings.

We have also considered the Judge's decision on the merits and the entire record, including the parties' contentions, and adopt the Judge's findings and conclusions only to the extent consistent with our decision. In summary, we conclude that the Respondent failed to comply with the requirements of section 7114(b)(4), in violation of section 7116(a)(1), (5) and (8), by refusing the Union's request for the memoranda to Hynes from Cooley and Eschbacher. Similarly, we conclude for the same reason that Respondent's failure to furnish the Union with a copy of the memorandum from Hynes to the Regional Director or, in the alternative, to inform the Union that the memorandum did not exist, violated section 7116(a)(1), (5) and (8). However, we also conclude that the Union was not entitled to Labor Relations Officer Verebelyi's memorandum to Eschbacher under section 7114(b)(4) and we will dismiss that part of the complaint.

ORDER

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute: [ v30 p19 ]

A. The Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, shall:

1. Cease and desist from:

(a) Failing or refusing to furnish, upon request by the National Weather Service Employees Organization, MEBA, AFL - CIO, the exclusive representative of a unit of its employees, requested information that is reasonably available and necessary for the exclusive representative to effectively represent unit employees.

(b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights under the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor - Management Relations Statute:

(a) Furnish to the National Weather Service Employees Organization, MEBA, AFL - CIO, copies of: (1) the memorandum dated November 8, 1984, from Mr. Jack R. Cooley to Mr. Bart Hynes, concerning a meeting with Mr. Roger Galloway in Mr. Cooley's office in Grand Rapids, Michigan on October 23, 1984; (2) the memorandum dated November 23, 1984, from Mr. Carl H. Eschbacher to Mr. Hynes concerning the same meeting; and (3) the memorandum dated on or about January 7, 1985, from Mr. Hynes to Mr. Robert Wassall, reporting an action against Mr. Galloway. If the latter memorandum does not exist, the Respondent shall so notify the Union.

(b) Post at its facilities in its Central Region, copies of the attached Notice on forms to be furnished by the Federal T-bor Relations Authority. Upon receipt of such forms they shall be signed by the Director of the National Weather Service Central Region, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material. [ v30 p20 ]

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region V, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

B. The allegations in the complaint concerning the memorandum dated January 4, 1985, from Mr. Joe Verebelyi to Mr. Carl Eschbacher are dismissed.

Issued, Washington, D.C., November 23, 1987.

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v30 p21 ]

                  NOTICE TO ALL EMPLOYEES
    AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
          AND TO EFFECTUATE THE POLICIES OF THE
     FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
               WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail or refuse to furnish, upon request by the National Weather Service Employees Organization, MEBA, AFL - CIO, the exclusive representative of a unit of our employees, requested information that is reasonably available and necessary for the exclusive representative to effectively represent the employees in the unit.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Statute.

WE WILL furnish the National Weather Service Employees Organization, MEBA, AFL - CIO, copies of: (1) a memorandum dated November 8, 1984, from Mr. Jack R. Cooley to Mr. Bart Hynes, concerning a meeting in Mr. Cooley's office in Grand Rapids, Michigan on October 23, 1984; (2) a memorandum dated November 23, 1984, from Mr. Carl H. Eschbacher to Mr. Hynes concerning the same meeting; and (3), if it exists, a memorandum dated on or about January 7, 1985, from Mr. Hynes to Mr. Robert Wassall, reporting an action against Mr. Galloway.

                             ______________________________
                                      (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 V, whose address is: 175 W. Jackson Boulevard, Suite 1359-A, Chicago, Illinois 60604 and whose telephone number is: (312) 353-6306. [PAGE]

DEPARTMENT OF COMMERCE,
NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION,
NATIONAL WEATHER SERVICE,
SILVER SPRING, MARYLAND

              Respondent

    and

NATIONAL WEATHER SERVICE
EMPLOYEES ORGANIZATION, MEBA,
AFL-CIO

              Charging Party

Case No.: 5-CA-50153

C. J. Schmidt, Esquire
    For the Respondent

Richard J. Hirn, Esquire
    For the Charging Party

Judith A. Ramey, Esquire
    For the General Counsel

Before: JOHN H. FENTON
        Chief Administrative Law Judge

DECISION

Statement of the Case

This matter arises under the Federal Service Labor - Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101, et. seq. It is based on a charge filed by the National Weather Service Employees Organization on February 12, 1985, and a Complaint issued on November 20, 1985 by the Regional Director of Region V of the Federal Labor Relations Authority. The Complaint alleged that Respondent violated Section 7116(a)(1), (5) and (8) of the Statute by refusing the Union's request for certain information. Respondent defended on the ground the information sought: (1) constitutes "guidance, advice, [PAGE] counsel . . . for management officials or supervisors, relating to collective bargaining . . ." which is exempt from production under Section 7114(b)(4)(C); (2) is unnecessary; and, (3) need not be produced for the purpose of enabling the Union to investigate a possible unfair labor practice.

A hearing was held on January 31, 1986, in Grand Rapids, Michigan. Based upon the entire record, and my observation of the witnesses, I make the following findings of fact, conclusions and recommendations.

Findings of Fact

The Union represents a nationwide unit of National Weather Service (NWS) employees. NWS's Central Region, which includes Michigan, is headquartered in Kansas City, Missouri. At material times the Director of the NWS Central Region was Robert Wassall.

Roger Galloway is a meteorological technician in the Muskogee Weather Service Office (WSO) where he is supervised by Bart Hynes, the Official-In-Charge (OIC). Mr. Galloway had served as a Union steward at several locations and as a Regional Councilman before being elected Chairman of the Union's Central Region in 1983. He served in that capacity until October 1985, except for a period of about one week in November 1984 when he was Regional Vice Chairman.

Galloway was authorized to travel from Muskogee to Grand Rapids on October 23, 1984, in order to represent the Union in an arbitration hearing involving a grievance filed by employee Eric Kersey against Jack Cooley, Meteorologist-In-Charge (MIC) of the Grand Rapids WSO. At issue was whether Cooley's scheduling practices violated the collective bargaining agreement. Union attorney Richard J. Hirn was also in attendance. The agency representatives included MIC Cooley, Gil Russell, MIC of the Jackson, Kentucky WSO, and Angela Thomas, a Personnel Specialist from the Central Administrative Support Center (CASC) in Kansas City. CASC is a part of the Weather Service's parent agency, the National Oceanic and Atmospheric Administration (NOAA), and its Kansas City office is located in the same building as the Services Central Region Headquarters. Thomas provides labor and employee relations advice to the NWS Central Region, among other components of the Department of Commerce in that area.

During a hearing break, Kersey told Galloway of a new posted work schedule which he believed also violated the contract, and Galloway told Cooley of it after the hearing [ v30 p2 ] concluded. Cooley and Thomas told him they would look it over in the WSO office and invited him to come up and discuss it. When Galloway, Kersey and Hirn first visited, Cooley told them he needed ten more minutes.

Versions of what happened thereafter are wide apart, and it is not necessary for purposes of this proceeding to resolve the differences. Suffice it to say that Galloway allegedly entered "unannounced and uninvited," that tempers flared when he requested that Thomas and Russell leave the room while he dealt with Cooley over Kersey's grievance, that Thomas refused to leave and that Galloway told her to get out, pointing to the door. The incident provoked MIC Cooley to write Galloway's supervisor, Hynes, a November 8 memorandum describing the incident and referring to the possibility of discipline. On November 28, Carl Eschbacher, Branch Chief of the NWS branch of CASC, and Thomas' supervisor, also wrote Hynes, providing what is, essentially, Thomas' version of the incident for his consideration as Galloway's supervisor. 1

On December 5 OIC Hynes called Galloway into his office, said he had been told he had to do something to Galloway, and gave him the above described memoranda. He did not permit Galloway to copy them, or to take notes. Galloway gleaned from a quick reading of the Cooley memo that Cooley had found his action disruptive, loud, abusive, profane and unprofessional, and had recommended to Hynes (who is not his subordinate) that Galloway be given the maximum 15 day suspension which the NOAA Handbook provided for such misconduct. Galloway formed the impression that the second memorandum was from the Director of Personnel or the Director of CASC, and that it, too, recommended a suspension. Galloway responded (in more colorful language) that the reports were totally erroneous, and Hynes told him that he had been ordered to do something to him, but was only going to talk to him - that as far as he was concerned the matter was closed.

On December 22 Galloway wrote Wassall, Director of the NWS Central Region, requesting copies of the letters "under [ v30 p3 ] statute 7114b to investigate and possibly file an Unfair Labor Practice Charge". The letter was sent in his capacity as Chairman of Region III of the Union.

On January 4 the Labor Relations Officer for CASC wrote Eschbacher concerning the incident. He reviewed the facts and recommended, based on his assessment of the seriousness of the incident and the lapse of time since the incident, that disciplinary action should not be taken. This was a recommendation only because the final determination was to be made by Hynes and was to be reported back.

On January 7 Hynes again asked to see Galloway about the Grand Rapids incident. Hynes said he had been instructed to suspend Galloway for ten days, by someone at a level higher than that of Mr. Calabrese, Deputy Director of the Central Region, but that he would not do so. Instead he would write a letter to Kansas City stating that he had counseled Galloway. Hynes also said that a Labor Relations Specialist with CASC had agreed with his view that the suspension appeared to be retaliation. 2 The next day Hynes showed Galloway a draft of his letter to Regional Director Wassall, in which he reported he had counseled Galloway. He told Galloway the letter would not become part of his personnel record, because it merely reflected an oral reprimand. He then offered his "personal advice": that Galloway should tell other Union members that management thought he was out of Union office at the time of the incident and "that any Union person that might be thinking of getting out, they might end up on the street." That night Galloway prepared a second letter to Wassall. He repeated his request for the two letters sought in his letter of December 22, requested a letter sent to Hynes by the Chief of CASC, and "any and all correspondence between Mr. Hynes and any CASC personnel, Mr. Hynes and the Area Manager (Mr. Snider), Mr. Hynes and yourself, and Mr. Hynes and Mr. Calabrese concerning any proposed actions, reprimands, or suspensions concerning me . . . and alleged incidents at WSO Grand Rapids on October 23, 1984." Again - twice - he said his request was "under statute 7114 for the purpose of investigation and possible filing of an Unfair Labor Practice Charge". He mailed the letter the following day. [ v30 p4 ]

By letter dated January 21, Wassall responded to the December 22 request, denying it on the ground that there is no statutory obligation "to provide information for the investigation or possible filing of an unfair labor practice charge." No response was ever made to the second request, which Respondent denies receiving. 3

Discussion and Conclusions

There are several preliminary matters which arise from the General Counsel's effort to subpoena the materials sought by Galloway in his two letters. As noted, Respondent produced the two memoranda which Galloway had seen in Hynes' office, and a third document, with attachment, which had been sent to the Chief of the NWS Personnel Branch by the Chief of Labor Relations at CASC, for in camera inspection in order to enable the undersigned to rule on its motion to quash based on the contentions that such materials constitute intra-management guidance relating to collective bargaining (and are thus exempt from disclosure under Section 7114(b)(4)(C)), and that they are, in any event, irrelevant to the purpose of collective bargaining. The motion to quash was rejected, but Respondent refused to produce the materials, even under a proposed protective order, for use by counsel for the other parties. Thereafter the hearing was adjourned to permit the General Counsel an opportunity to consider subpoena enforcement proceedings, and the determination was made not to institute such proceedings.

As a consequence of these developments, the General Counsel requests that I strike Respondent's cross-examination of Galloway concerning the disputed documents, its examination of MIC Cooley concerning the incident and his memo about it, and its examination of Thomas concerning the incident, [ v30 p5 ] reasoning from certain Labor Board cases that Respondent's refusal to turn over the documents or permit their viewing by other counsel warrants, as a sanction, forfeiture of its right to examine witnesses with reference to matters provable by the documents. General Counsel and Charging Party also strongly urge that I must, in order to maintain the integrity of the Authority's subpoena powers, draw an inference that these documents - admittedly normally maintained and reasonably available - are necessary, relevant and not subject to the exemption set forth in Section 7114(b)(4)(C). Respondent, in kind, contends that a "negative inference" should be drawn from the General Counsel's failure to seek subpoena enforcement, i.e. that the documents produced through any such proceedings would have been adverse to the General Counsel. The Charging Party also asserts Respondent has waived any right to withhold the documents by eliciting testimony about their content.

The problem with imposing sanctions, or inferring that the materials sought are not covered by the exemption, is that the defense to disclosure may thus be removed by its very assertion. It is of course commonplace to draw an inference adverse to a litigant who fails to come forward with evidence which is under its control, highly relevant, and devoid of any claim of privilege. The commonsense reaction to such conduct is to conclude that the evidence is withheld because it is harmful. Thus, for example, payroll records may be sought to prove a personnel action was discriminatory or, in an NLRB proceeding, to prove that a union enjoys majority status. Such evidence is obviously relevant, and would enjoy no conceivable privilege against disclosure. Resistance to a subpoena in such a case, in a naked effort to put the General Counsel to the costly and time-consuming collateral enforcement proceedings prescribed by statute, warrants the use of such sanctions. 4

But this case is not that easy. Respondent contends that the documents at issue were exempted by Congress from a duty to disclose, in camera inspection indicates that the inference sought is at odds with the facts, and disclosure, [ v30 p6 ] even under a protective order, is not without risk to the right asserted. Were the Charging Party - as is so often the case - not represented by Counsel, I think it would be indisputable that it would have no right to see these documents. In such event a protective order would have no teeth, and disclosure to a union representative would, as a practical matter, remove the need for further proceedings. For the evidence sought here is not merely relevant to some other issue. Whether the exemption applies is the heart of the case, and General Counsel seeks production of the documents to prove they are producible. Thus the claimed confidentiality may be compromised by the effort to establish that it attaches.

Here, again, the question is not so simple. The Union is represented by counsel and at least theoretically subject to a protective order. I am not explicitly vested with authority to discipline for breach such an order. While the likelihood that an attorney would share such information is extremely remote, it is a factor that must be weighed in the balance to be struck. I am aware also, that Courts do not favor ex parte, in camera review, because it deprives them of the light which litigants might throw on the matter if included in the process. And they are, of course, more receptive to exclusion of counsel where the privilege asserted goes to such weighty matters as national security or foreign policy secrets. See Pollard v. FBI, 705 F.2d 1151, 1152 (C.C.A. 9, 1983).

A final factor to be considered is the nature of the claimed privilege as it relates to the need for counsel's assistance. It would seem that the question whether documents contain intra-management advice, counsel or guidance is one a judge is in a good position to decide without bringing into play the extensive knowledge of the case which the counsel possess. Rather such documents tend to speak for themselves.

On balance, I reject the request that I impose sanctions or draw an adverse inference against Respondent in these circumstances. I likewise reject the Charging Party's request that Respondent be found to have waived its right to keep such documents confidential by eliciting evidence about their content. To the extent Respondent attempts to develop a limited record - one which reveals in a general way the nature of the documents - it thereby assists the undersigned and the other parties. Courts regularly do the same after in camera review in order to assist counsel kept out of that process. It would be inappropriate to penalize Respondent for such cooperativeness. [ v30 p7 ]

On the merits, it is admitted that the information sought is normally maintained in the regular course of business, thus satisfying Section 7114(b)(4)(A). It is also admitted that they are reasonably available, but not that they are "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining" as 7114(b)(4)(B) requires. A potential grievance is a subject within the scope of collective bargaining, 5 as is a union's duty to make appropriate inquiries concerning such a matter. Galloway had reason to believe that he might be disciplined, and that any decision to discipline him was based on his Union role. He had a need to know what information had been assembled against him so as to be in a position to decide whether to grieve and how to counter it should he decide to grieve.

Respondent defends on the ground that Galloway's stated purpose for his request was to investigate a possible unfair labor practice and to file a charge should he find grounds. It relies on Director of Administration, Headquarters, U.S. Air Force, 6 FLRA 110, 122-123 for the proposition that an agency may rely on the union's stated purpose for information, and may safely decline to furnish it where such reason gives rise to no obligation, even though the information might be relevant for unexpressed reasons, and on Library of Congress, 19 FLRA 267 for the principle that a union is limited to the disclosure procedures of the forum it selects, and that it need not disclose information relevant to an unfair labor practice proceeding.

Galloway's request was made pursuant to Section 7114, which has to do with the obligation to provide an exclusive representative with data which is "necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining." The fact that he supplemented it with the stated purpose of investigating and possibly filing an unfair labor practice charge does not, in my view, remove the other purpose - the possibility of a grievance - which inheres in the part of the Statute to which he made reference. At best, he left his purpose ambiguous in his letters, and he told his supervisor that a grievance might result. Nor do I regard Library of Congress to be applicable here. There the employee had already chosen to proceed with his EEO complaint under agency regulations, [ v30 p8 ] rather than under the grievance procedure, when the agency refused the union's request for information. Galloway had made no election when he requested information - he had merely referred to Section 7114 which deals with collective bargaining (and hence, grievances) and to the possibility of filing an unfair labor practice charge.

In addition, a persuasive case can be made for an exclusive representative's entitlement to information, pursuant to Section 7114 for the purpose of exploring its right to seek vindication through the unfair labor practice procedures. Thus, while discovery is unavailable in connection with a charge which has been filed, it does not necessarily follow that a potential charging party (which is an exclusive representative) is not entitled to information relevant to a possible unfair labor practice. Collective bargaining, which is to be facilitated by the appropriate release of data by agencies, would seem to comprehend resort to the FSIP for resolution of impasses, resort to the FLRA for resolution of negotiability issues and, for like reasons, resort to the FLRA also for determination of claimed unfair labor practices. Although I know of no precedent indisputably supporting the proposition, I conclude that an exclusive representative is entitled under Section 7114 to data relevant and necessary to a determination whether an unfair labor practice has occurred. 6 [ v30 p9 ]

Respondent also defends its refusal to provide information on the ground that such information concerns Galloway's conduct, i.e. that he was present and does not need management's records concerning the incident in order to know what occurred. It cites therefor Charleston Naval Shipyard, Case No. 4-CA-1159, ALJ Decision Report No. 26. Aside from the nonprecedential nature of that case, I do not find its analysis persuasive in the different circumstances of this case. There the union sought nonverbatim shorthand notes, made by management, of the testimony of an employee under investigation for misconduct. That testimony, in turn, was merely read from a written statement which was, of course, in the union's possession. The latter was therefore already armed with the very information it requested and was in this respect fully prepared to intelligently represent the employee. Here, on the other hand, Galloway was involved in a heated incident, of a kind in which recollection is notoriously unreliable. He knew that several management versions of the affair were in existence, and they were sources of valuable information concerning whether and to what extent he should resist the imposition of discipline. I conclude that such data was necessary for the Union to intelligently discharge its duty to represent him, and that Section 7114 (b) (4) requires that Respondent furnish it to the extent that the exemption of Section 7114(b)(4) does not apply.

General Counsel further argues that the exemption should not apply because the data sought does not directly relate to the actual process of collective bargaining, i.e. negotiations. Thus, it is argued that the duty to "negotiate in good faith" set forth in Section 7114(b) as "includ(ing) the obligation . . . to furnish . . . data . . . necessary for full and proper . . . negotiation of subjects within the scope of collective bargaining" comprehends information relevant to grievances, but that the exemption set forth therein for "guidance, advice, counsel or training provided for management officials or supervisors, relating to collective bargaining" is to be narrowly read as applicable to the negotiation of terms and conditions of employment. It is conceded that there is no decision, directly in point, and apparently, that the legislative history is not helpful. I conclude that the exemption for management guidance ought to have the same breadth as the duty to furnish. In both instances Congress used the same touchstones: it indicated that data necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining is to be furnished, and that advice or guidance relating to collective bargaining is not to be. [ v30 p10 ]

Nothing in this approach suggests to me that a union cannot be privy to management's bargaining deliberations and strategy, but is entitled to examine management's thought processes respecting the approach to be taken to questions of discipline or responses to grievances. Rather it sounds like all labor relations guidance and training are off-limits, but relevant and necessary facts are to be shared.

Applying this approach, I find that the reports sent to Hynes by Cooley on November 8 and by Eschbacher on November 28 do not meet the requirements of the exemption because they do not, in any true sense, contain intra-management "guidance, advice (and) counsel". Rather, they are factual reports of the incident from two management representatives who witnessed it. Mention is made of the range of possible discipline provided for in the governing personnel manuals, and there is therefore a basis for arguing that they contain advice counsel and guidance. In analysis however, in my judgement, such "guidance" is no more than a reference to the controlling public personnel manual provisions pursuant to which Hynes would exercise his judgement concerning the degree of discipline, if any, which would be appropriate in the circumstances. 7

The third memo (with attachment), from the Labor Relations Officer to Eschbacher discloses no new facts and, more importantly, indisputably contains a manager's assessment of the incident and his deliberations or thought processes as well as his recommendations concerning an appropriate management response. As such it seems clearly to constitute intra-management guidance relating to collective bargaining, and hence to be exempt from disclosure under Section 7114(b)(4)(C).

This record indicates that there is a fourth memo, from Hynes to Wassall, in which Hynes reported that he had "counseled" Galloway and that the latter had maintained his innocence. Galloway saw a draft of this memo and testified that Hynes explained it was "just an oral reprimand" which would not be placed in his personnel file. It was immediately after this that Galloway typed his second request for information, requesting any relevant correspondence to and [ v30 p11 ] from Hynes. 8 It is this letter, of course, which Respondent denies receiving through the testimony of Parry and the affidavit of Wassall, to whom it was addressed. General Counsel and Charging Party contend that Galloway's uncontradicted testimony that he properly mailed the second request gives rise to the presumption that it was received, and that neither the affidavit of the addressee nor the testimony of the labor relations specialist to whom it would have been referred for reply is sufficient to overcome the presumption. It follows, they assert, that the Hynes' letter should be produced (notwithstanding the representation of Respondent's counsel that no such memo could be found) because it has been shown to exist and to have been requested in the second Galloway letter which must be presumed to have been received.

I conclude, from Galloway's testimony, that the memo was very brief, that he fully understands its impact, and that the Union is already it possession of the information it requests. I find that the memo is therefore not necessary to informed or intelligent representation of Galloway.

In sum, I find and conclude that Respondent violated its duty to negotiate in good faith, and failed to comply with the requirements of Section 7114(b)(4), in violation of Section 7116(a)(1), (5) and (8) by refusing the Union's request for the memo from Cooley to Hynes and the memo from Eschbacher to Hynes. I further find that the refusal to furnish the memo to Eschbacher from the Labor Relations Officer of CASC did not violate the Statute because it was subject to the exemption set forth is Section 7114(b)(4)(C), and that the failure to turn over the memo from Hynes to Eschbacher was not a violation because such information was not necessary to full and proper discussion of subjects within the scope of collective bargaining.

Accordingly, I recommend that the Complaint be dismissed in the two latter respects and that the Authority otherwise issue the following:

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 [ v30 p12 ] of the Statute, it is hereby ordered that the Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, shall:

1. Cease and desist from:

(a) Failing or refusing to provide, to the National Weather Service Employees Organization, MEBA, AFL - CIO, the employees' exclusive representative, copies of requested data which is necessary and relevant to enable such exclusive representative to perform its representational duties in connection with an employee's potential grievance.

(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor - Management Relations Statute:

(a) Furnish to the National Weather Service Employees Organization, MEBA, AFL - CIO, the employees' exclusive representative, necessary and relevant data requested by the exclusive representative in order to perform its representational duties in connection with an employee's potential grievance.

(b) Post at its facilities in its Central Region, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by the Director of the National Weather Service Central Region, and shall be posted and maintained by him for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. The Director shall take [ v30 p13 ] reasonable steps to insure that such Notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region v, 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.

JOHN H. FENTON
Chief Administrative Law Judge

Dated: November 7, 1986
       Washington, D.C.

[ v30 p14 ]

                        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 National Weather Service Employees Organization, MEBA, AFL - CIO, the employees' exclusive representative, copies of requested data which is necessary and relevant to enable such exclusive representative to perform its representational duties in connection with an employee's potential grievance.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Statute.

WE WILL furnish to the National Weather Service Employees Organization, MEBA, AFL - CIO, the employees' exclusive representative, necessary and relevant data requested by the exclusive representative in order to perform its representational duties in connection with an employee's potential grievance.

                             ______________________________
                                 (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. [PAGE]

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 V, whose address is: 175 W. Jackson Blvd., Suite A-1359, Chicago, IL 60604, and whose telephone number is: (312) 353-6306. [ v30 p2 ]

FOOTNOTES

Footnote 1 These two documents and a third to be described later, were provided for in camera inspection and are in the record under seal as ALJ Exhibits 1, 2 and 3. The descriptions of them are taken from testimony, and not from the documents themselves.

Footnote 2 Galloway said that he "wasn't going to take it lying down, that I would be filing a grievance or an unfair labor practice."

Footnote 3 Wassall retired before the hearing, and wou