32:0717(104)CA - - Treasury, IRS, Washington, DC and IRS, Chicago District and NTEU and NTEU Chapter 10 - - 1988 FLRAdec CA - - v32 p717



[ v32 p717 ]
32:0717(104)CA
The decision of the Authority follows:


   32 FLRA No. 104

UNITED STATES OF AMERICA
BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.

 

DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
WASHINGTON, D.C. AND
INTERNAL REVENUE SERVICE
CHICAGO DISTRICT
Respondent

and 

NATIONAL TREASURY EMPLOYEES UNION AND
NATIONAL TREASURY EMPLOYEES UNION,
CHAPTER 10
Charging Party

Case No. 5-CA-60265
(32 FLRA 237)

ORDER DENYING MOTION FOR RECONSIDERATION AND GRANTING MOTION

TO AMEND REMAND ORDER

This case is before the Authority on the Respondent's motion for reconsideration of our June 3, 1988 decision remanding the above-cited case. In the alternative, the Respondent moves to amend the remand order in that case. The Charging Party filed a brief in opposition to the motion for reconsideration. For the reasons set forth below, we deny the motion for reconsideration, and we grant the motion to amend the remand order.(*)

In our decision remanding the case to the Administrative Law Judge, we found that the Judge's order dismissing the complaint must be vacated because it was inconsistent with National Labor Relations Board Union, Local 6 v. FLRA, 842 F.2d 483 (D.C. Cir. 1988), which was issued subsequent to the Judge's decision. Consistent with that court decision, we noted that disclosure of documents sought by the Charging Party is not barred under section 7114(b)(4) of the Statute because they concern the "deliberative process" by which management exercises its rights under section 7106 of the Statute.

In determining that the complaint must be dismissed, the Judge did not reach the questions of whether the documents are "necessary" within the meaning of section 7114 (b)(4)(B), or whether they constitute "guidance, advice, counsel, or training . . . relating to collective bargaining" under section 7114(b)(4)(C). We remanded the case to the Judge for him to consider those issues.

In its motion for reconsideration, the Respondent asserts that section 7106 was never raised before the Judge as a basis for its refusal to release the disputed documents. Rather, it states that it asserted that it was prohibited by law from disclosing information "pursuant to the governmental deliberative process privilege." Respondent's motion for reconsideration at 2. The Respondent asserts the following:

The court in NLRB Union, Local 6 stated that in order for the "prohibited by law" provision of section 7114 (b)(4) to apply, "there must be something somewhere in the law that forbids the data's disclosure. . . . Section 7106 does not contain that 'something' and, therefore, cannot support the [A]uthority's decision." 842 F.2d at 486. Respondent submits that the deliberative process privilege constitutes the "something" that the court found lacking in the Authority's analysis in the National Park Service and NLRB cases.

Respondent's motion for reconsideration at 2-3. Therefore, the Respondent seeks a new remand order "with instructions that the [Judge] may consider the governmental deliberative process privilege issue as well as the other issues already identified by the Authority." Id. at 4.

In its opposition to the Respondent's motion, the Charging Party argues that the motion lacks merit because the "deliberative process" issue already has been addressed by the Judge and by our decision.

Section 2429.17 of the Authority's Rules and Regulations permits a party to request reconsideration of a final decision or order when the party can establish "extraordinary circumstances." We conclude that the Respondent has not established "extraordinary circumstances" within the meaning of section 2429.17.

Although the Respondent requests "reconsideration of the Authority's Decision and Order Remanding Case," the Respondent offers no argument that the decision to remand the case to the Administrative Law Judge was in error. Rather, the basis of Respondent's motion is its assertion that "on remand the Administrative Law Judge should also consider whether release of the documents is prohibited by law based on the governmental deliberative process privilege." Id. at 3. In our view, the Respondent has failed to establish "extraordinary circumstances" for reconsideration of our decision to remand the case. Therefore, the Respondent's motion for reconsideration is denied.

However, we will grant the Respondent's alternative motion to amend the scope of the remand order. The Respondent requests that on remand the Judge consider whether release of the subject