38:0965(82)CA - - Air Force, Sacramento Air Logistics Center, McClellan AFB, CA and AFGE Local 1857 - - 1990 FLRAdec CA - - v38 p965

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[ v38 p965 ]
38:0965(82)CA
The decision of the Authority follows:


38 FLRA No. 82

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF THE AIR FORCE

SACRAMENTO AIR LOGISTICS CENTER

MCCLELLAN AIR FORCE BASE, CALIFORNIA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1857

(Charging Party)

9-CA-80341

DECISION AND ORDER

December 14, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the Respondent and the General Counsel 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 a document requested under section 7114(b)(4) of the Statute. The Judge found that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by refusing to furnish the requested document to the Union.

Pursuant to section 2423.29 of our Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm those rulings. Upon consideration of the Judge's Decision, and the entire record, we adopt the Judge's findings, conclusions and recommended Order only to the extent consistent with this decision.

II. Background

The facts, more fully set forth in the Judge's Decision, are summarized below.

Department of Air Force Regulation, AFR 40-750, which governs discipline and adverse actions, requires the coordination of all proposed disciplinary actions. Prior to issuing a notice of proposed discipline to an employee, the Respondent circulates the proposed discipline file among several supervisors and management officials. The proposed discipline file is covered by a coordination sheet.

The purpose of the coordination sheet is to designate the various offices which must coordinate that particular action. The Civilian Personnel Office and the Office of the Judge Advocate are included on the coordination sheet for all proposed discipline actions. The Civilian Personnel Office reviews the proposed action for merit and procedural correctness. The Judge Advocate General reviews the proposed action for legal sufficiency. The coordination sheet provides space where the signers can write comments. The management officials listed on the coordination sheet "have significant influence on possible changes in proposed the discipline or whether in the proposed discipline is imposed." Judge's Decision at 5.

On December 18, 1987, a Notice of Proposed Reprimand was issued to a bargaining unit employee. The proposed discipline was signed by the employee's first-level supervisor. Under AFR 40-750, the employee and his representative have the right to make an oral and/or written reply to the second-level supervisor concerning the proposed discipline. After a final decision is made on the proposed action, and the final notice of discipline is issued, the employee may file a grievance, under the parties' negotiated grievance procedure, contesting the final decision. The unresolved grievances may be submitted to arbitration.

In December 1987, the employee filed his written response to the proposed discipline with the third-level supervisor because the second-level supervisor retired. In January 1988, the employee and the Union representative met with the third-level supervisor to present the oral response to the proposed discipline. During the meeting, the Union representative asked the third-level supervisor to remove himself as the deciding official on the proposed discipline because the third-level supervisor "had allegedly already approved the decision to discipline" the employee and, therefore, the proceedings were not fair. Id. at 3. The third-level supervisor did not respond and later issued a decision upholding the proposed reprimand.

The Union filed a grievance over the Respondent's decision to reprimand the employee. The grievance was processed through the grievance procedure and eventually submitted to arbitration. The arbitrator sustained the grievance and the employee's reprimand was removed.

During the preparation for the arbitration hearing, the Union "determined [that] a copy of the discipline coordination sheet was needed to present the grievance." Id. By letters dated April 14 and May 6, 1988, the Union requested that the Respondent furnish it with a copy of the discipline coordination sheet, showing the names and dates of the management officials who coordinated the proposed discipline. The letters stated that the information was being requested under section 7114(b)(4) of the Statute. By letters dated April 22 and May 10, 1988, the Respondent refused to furnish the Union the discipline coordination sheet on the grounds that it: (1) was an internal management document; and (2) did not have any bearing on the grievance. Id.

III. Administrative Law Judge's Decision

First, the Judge noted that there was no dispute that the Union had requested a copy of the discipline coordination sheet and that the sheet was normally maintained and reasonably available under section 7114(b)(4) of the Statute. The Judge then concluded that the discipline coordination sheet was necessary for full and proper discussion of subjects within the scope of collective bargaining, within the meaning of section 7114(b)(4). The Judge rejected the Respondent's contention that the discipline coordination sheet was not necessary because the Union was able to elicit the information at the arbitration hearing. In the Judge's view, the discipline coordination sheet was necessary for the Union to adequately represent the grievant and to determine "which arguments on behalf of [the grievant] were appropriate and whether to proceed to arbitration." Id. at 6.

Next, the Judge rejected the Respondent's contention that 42 U.S.C. § 290dd-3 precluded the disclosure of the discipline coordination sheet to the Union.(1) The Judge found no merit in the Respondent's argument that it should not be required to provide the Union with the discipline coordination sheet because "such sheet might contain comments concerning any alcohol or drug problems that might affect the employee." Id. (emphasis in original). The Judge found, in this regard, that the discipline coordination sheet "contained no such information[.]" Id.

Further, the Judge rejected the Respondent's argument that it was privileged to withhold the discipline coordination sheet because it "might contain comments or statements that might constitute guidance, advice or counsel relating to collective bargaining, within the meaning of [s]ection 7114(b)(4) of the Statute[.]" Id. at 7 (emphasis in original). The Judge noted that the discipline coordination sheet "contained no comments or statements at all." Id. The Judge concluded that the presence of a signature and date, alone, did not constitute guidance, advice, counsel or training within the meaning of section 7114(b)(4) of the Statute.

The Judge also rejected the Respondent's contention that disclosure of the discipline coordination sheet to the Union would "violate an attorney/client privilege or attorney work product privilege." Id. at 8. The Judge stated:

[W]ithout reaching whether any attorney/client privilege is present, there were no comments or statements by the judge advocate general's office, and thus I find no privilege can be raised.

Id.

Finally, the Judge concluded, based on National Labor Relations Board Union Local 6 v. FLRA, 842 F.2d 483 (D.C. Cir. 1988), that the Respondent "had no privilege under [s]ection 7106(a)(2) of the Statute to withhold the discipline coordination sheet in the subject case." Id. at 9.

Accordingly, the Judge found that the Respondent was required by section 7114(b)(4) of the Statute to furnish the discipline coordination sheet to the Union, and that its failure to do so violated section 7116(a)(1), (5), and (8) of the Statute.

IV. Respondent's Exceptions

The Respondent raises five exceptions to the Judge's decision:

First, the Respondent excepts to the Judge's conclusion that the discipline coordination sheet was "necessary" within the meaning of section 7114(b)(4) of the Statute. Respondent's Exceptions at 1. The Respondent argues that the discipline coordination sheet was not necessary for the Union to perform its representational functions because the Union had the opportunity to elicit the information from management officials "during the grievance procedure and at arbitration." Respondent's Brief at 4.

Second, the Respondent excepts to the Judge's conclusion that "the Privacy Act (42 U.S.C. Section 290dd-3) does not provide any limitation on the disclosure of the discipline coordination sheet." Respondent's Exception at 1. The Respondent argues that 42 U.S.C. § 290dd-3 protects the confidentiality of information concerning the diagnosis and treatment of an employee for alcoholism or alcohol abuse. According to the Respondent, "there is no authorization to provide such information to labor unions for any reason without a court order." Respondent's Brief at 6. The Respondent argues that discipline coordination sheets should not be disclosed because they may contain such information.

Third, the Respondent excepts to the Judge's conclusion that the discipline coordination sheet does not constitute guidance, advice, or counsel relating to collective bargaining within the meaning of section 7114(b)(4)(C) of the Statute. The Respondent argues that coordination sheets constitute management guidance, advice, and counsel because "they are obviously for the purpose of decision-making relative to discipline[.]" Id. at 5.

Fourth, the Respondent excepts to the Judge's conclusion that requiring disclosure of the discipline coordination sheet does not violate the attorney-client privilege. According to the Respondent, the Judge Advocate's Office reviews proposed disciplinary actions for "legal sufficiency" and may "place comments on the coordination sheets[.]" Id. at 3.

Finally, the Respondent excepts to the Judge's conclusion that disclosure of the discipline coordination sheet does not violate management's right to discipline employees under section 7106(a)(2)(A) of the Statute. The Respondent contends that the information contained on coordination sheets "goes to the heart of the internal management deliberative process and should for that reason alone be protected from disclosure." Id. at 5-6.

V. General Counsel's Exception

The General Counsel excepts only to the portion of the Judge's recommended Order providing that the Notice may be signed by an "'appropriate official[.]'" General Counsel's Exception at 1. According to the General Counsel, under the Judge's recommended Order, "almost anyone could be designated to sign the Notice, which would diminish the remedial aspects of the Notice[ ]" and "complicate compliance proceedings since the parties . . . could disagree regarding who should sign the Notice[.]" Brief in Support of General Counsel's Exception at 2-4. The General Counsel asserts that "[r]equiring the Notice to be signed by the Respondent's Commanding Officer promotes the remedial power of a Notice by assuring the unit employees who read the Notice that the Respondent is aware of its responsibility to meet its statutory obligations." Id. at 1-2.

VI. Analysis and Conclusions (2)

A. The Requested Information Was Necessary for the Union to Perform its Representational Functions

It is well established that under section 7114(b)(4) of the Statute, the exclusive representative is entitled to information that is necessary to enable it to carry out effectively its representational responsibilities, including information which will assist it in the investigation, evaluation, and presentation of a grievance. See generally, U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515 (1990), application for enforcement filed sub nom. FLRA v. U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, No. 90-1949 (1st Cir. Oct. 1, 1990). See also, for example, U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 37 FLRA 1310, 1319 (1990); U.S. Department of the Air Force, Air Force Logistics Command, Sacramento Air Logistics Center, McClellan Air Force Base, California, 37 FLRA 987, 995 (1990).

In this case, the discipline coordination sheet was requested by the Union in connection with the processing of a grievance filed by the Union over a disciplinary action taken against an employee. The coordination sheet identifies Agency officials who reviewed and approved the Respondent's proposed decision to reprimand the employee. Moreover, as found by the Judge, the officials who sign the coordination sheet can significantly affect the proposed discipline. In these circumstances, it is clear that the discipline coordination sheet was necessary, within the meaning of section 7114(b)(4) of the Statute, for the Union to fulfill its representational responsibilities.

B. The Requested Document Does Not Constitute Guidance, Advice, Counsel, or Training Under Section 7114(b)(4)(C) of the Statute

For the reasons which follow, we find that the requested document does not constitute guidance, advice, counsel, or training provided for management officials relating to collective bargaining.

The record establishes that the Respondent circulated a draft of a proposed disciplinary action to be taken against a unit employee, covered by a coordination sheet, which designated supervisors and management officials for review, comments, and concurrence. All the designated officials signed the coordination sheet without comment.

In National Labor Relations Board, 38 FLRA No. 48, slip op. at 17-18 (1990) (NLRB), the Authority held that

section 7114(b)(4)(C) exempts from disclosure to the exclusive representative information which contains guidance, advice, counsel, or training for management officials relating specifically to the collective bargaining process, such as: (1) courses of action agency management should take in negotiations with the union; (2) how a provision of the collective bargaining agreement should be interpreted and applied; (3) how a grievance or an unfair labor practice charge should be handled; and (4) other labor-management interactions which have an impact on the union's status as the exclusive bargaining representative of the employees.

The Authority further stated that section 7114(b)(4)(C)

does not exempt from disclosure guidance, advice, or counsel to management officials concerning the conditions of employment of a bargaining unit employee, for example: the personnel, policies and practices and other matters affecting the employee's working conditions that are not specifically related to the collective bargaining process.

Id. at 18.

Applying the foregoing interpretation of section 7114(b)(4)(C) to the facts and circumstances in this case, we conclude that the discipline coordination sheet does not constitute guidance, advice, or counsel relating to "collective bargaining" within the meaning of section 7114(b)(4)(C) of the Statute. In so concluding, we specifically reject the Judge's statements which imply that the discipline coordination sheet would be exempt from disclosure under section 7114(b)(4)(C) of the Statute if it contained comments or statements of managers and supervisors.

In this case, the coordination sheet sought by the Union pertains to a disciplinary action taken against a bargaining unit employee. The concurrences of the management officials and supervisors were not made in a context where the Agency and the Union were engaged in actual bargaining. Moreover, the concurrences of the supervisors and management officials do not pertain to the processing of the employee's grievance or to an unfair labor practice charge. Consistent with NLRB, therefore, we conclude that the requested discipline coordination sheet does not constitute guidance, advice, counsel, or training for management relating to collective bargaining within the meaning of section 7114(b)(4)(C).

C. Release of the Requested Discipline Coordination Sheet Is Not Prohibited by Law

The Respondent contends that the disclosure of the discipline coordination sheet is prohibited by: (1) the Privacy Act, 5 U.S.C. § 552a; (2) 42 U.S.C. § 290dd-3; and (3) section 7106(a)(2)(A) of the Statute. The Respondent also contends that disclosure of the discipline coordination sheet violates the attorney-client privilege. For the following reasons, we reject these contentions.

These same arguments were made to, and rejected by, the Judge. In particular, the Judge noted that the requested coordination sheet contained no statements or comments. The Judge concluded that providing the document to the Union would not violate the Privacy Act, 5 U.S.C. § 552a; 42 U.S.C. § 290dd-3; or the attorney-client privilege because there was no privileged information present. Next, the Judge rejected the Respondent's contention that disclosure of the document violated section 7106(a)(2)(A) of the Statute. Citing NLRB Union Local 6 v. FLRA, 842 F.2d 483 (D.C. Cir. 1988) (NLRB Union), the Judge found that section 7106 does not bar the disclosure of information under section 7114(b)(4) of the Statute.

We agree with the Judge's rejection of these arguments. First, we find no basis on which to conclude that providing a union with a coordination sheet pertaining to a unit employee being represented by the union would constitute an unwarranted invasion of the employee's privacy, within the meaning of exemption b(6) of the Freedom of Information Act, so as to preclude release of the information under the Privacy Act. In fact, as the Union obviously was aware of the discipline against the employee at the time the Union requested the coordination sheet, it is not apparent that there is any invasion of the employee's privacy. Second, 42 U.S.C. § 290dd-3 applies, by its terms, to "[r]ecords of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any program or activity relating to alcoholism or alcohol abuse education[.]" 42 U.S.C. § 290dd-3(a). The Respondent's discipline coordination sheet clearly is not such a record. As such, the statutory provision relied on by the Respondent does not apply.

Finally, there has been no demonstration that the Judge's disposition of the Respondent's arguments relating to the attorney-client work product, or its rights under section 7106 of the Statute, is in error. Indeed, as the disputed coordination sheet contained no comments at all, the Respondent's arguments in this regard are speculative. Moreover, consistent with the court's decision in NLRB Union, and for the reasons stated by the Judge, we reject the Respondent's assertion that disclosure of the requested information is inconsistent with its right to discipline employees under section 7106(a)(2)(A) of the Statute. We conclude, therefore, that the Respondent has not established that disclosure of the requested document is prohibited by law.

D. The Notice Must Be Signed by the Respondent's Commanding Officer

We agree with the General Counsel that the portion of the Judge's recommended Order enabling the required Notice to be signed by an appropriate official should be modified.

The Authority consistently has held that the remedial purposes of the Statute are best effectuated if the Notice is signed by an official designated by the Authority rather than one determined by a respondent. In fact, in a recent case involving the same parties, the Authority modified the Judge's recommended Order to require that the Notice be signed by the Respondent's Commanding Officer. Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 35 FLRA 1230 (1990). See also, for example, Army and Air Force Exchange Service, McClellan Base Exchange, McClellan Air Force Base, California, 35 FLRA 764 (1990) (Authority order that the Notice be signed by the Exchange Manager of the McClellan Air Force Base Exchange rather than by an "authorized representative").

In this case, we find that requiring the Commanding Officer of the Center to sign the Notice effectuates the remedial purposes of the Notice by signifying that the Respondent acknowledges its obligations under the Statute and intends to comply with those obligations. Accordingly, we will modify the Order to require that the Notice be signed by the Commanding Officer of the Sacramento Air Logistics Center.

VII. Summary

Section 7114(b)(4) of the Statute requires an agency to furnish the exclusive representative of its employees, upon request and to the extent not prohibited by law, information which is reasonably available and necessary for a union to carry out effectively its representational functions. In this case, there is no dispute that the information was reasonably available and normally maintained. We have concluded that the requested discipline coordination sheet: (1) was necessary for the Union to process the employee's grievance; (2) did not constitute guidance, advice, counsel, or training for management officials relating to collective bargaining within the meaning of section 7114(b)(4)(C) of the Statute; and (3) is not prohibited from disclosure by 5 U.S.C. § 552a, 42 U.S.C. § 290dd-3 or section 7106(a)(2)(A) of the Statute.

Therefore, we find that the Respondent was required by section 7114(b)(4) of the Statute to furnish the requested document to the Union and its failure to do so violated section 7116(a)(1), (5), and (8) of the Statute. Accordingly, we will direct the Respondent to cease and desist from its violation of the Statute and to furnish the requested information to the Union.

VIII. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, shall:

1. Cease and desist from:

(a) Failing and refusing to furnish the American Federation of Government Employees, Local 1857, AFL-CIO, the exclusive representative of its employees, with a copy of the requested December 1987 discipline coordination sheet.

(b) In any like or related manner, interfering with, restraining, or coercing their employees in the exercise of their rights assured them 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) Upon request, furnish the American Federation of Government Employees, Local 1857, AFL-CIO, with a copy of the requested December 1987 discipline coordination sheet.

(b) Post at its facilities 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 Commanding Officer of the Sacramento Air Logistics Center and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to their respective employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

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

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 and refuse to furnish the American Federation of Government Employees, Local 1857, AFL-CIO, the exclusive representative of our employees, with a copy of the requested December 1987 discipline coordination sheet.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL furnish the American Federation of Government Employees, Local 1857, AFL-CIO, the exclusive representative of our employees, with a copy of the requested December 1987 discipline coordination sheet.

______________________________
(Activity)

Dated:__________By:_________________________

(Signature) (Title)

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