38:1027(86)CA - - National Park Service, National Capital Region, Park Service and Police Association of the District of Columbia - - 1990 FLRAdec CA - - v38 p1027

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[ v38 p1027 ]
38:1027(86)CA
The decision of the Authority follows:


38 FLRA No. 86

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL PARK SERVICE

NATIONAL CAPITAL REGION

UNITED STATES PARK SERVICE

(Respondent)

and

POLICE ASSOCIATION OF THE

DISTRICT OF COLUMBIA

(Charging Party)

3-CA-60168

3-CA-60182

3-CA-60183

3-CA-60288

32 FLRA 308 (1988)

26 FLRA 441 (1987)

DECISION AND ORDER ON REMAND

December 18, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This consolidated unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached decision of the Administrative Law Judge. The Respondent filed an opposition to the General Counsel's exceptions. The consolidated 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 furnish the Union information requested under section 7114(b)(4) of the Statute.

In 32 FLRA 308, the Authority remanded this case to the Judge to determine whether the information sought by the Union was "necessary" within the meaning of section 7114(b)(4)(B), and whether it constituted "guidance, advice, counsel, or training . . . relating to collective bargaining" under section 7114(b)(4)(C). The Judge found that the disputed information constituted guidance, advice, or counsel to management officials or supervisors relating to collective bargaining within the meaning of section 7114(b)(4)(C) of the Statute and, therefore, was exempt from disclosure to the Union. The Judge also concluded that the disputed information was not necessary for full and proper discussion, understanding, and negotiations of subjects within the scope of collective bargaining within the meaning of section 7114(b)(4)(B) of the Statute. Accordingly, the Judge recommended that the consolidated complaint be dismissed.

Pursuant to section 2423.29 of our Rules and Regulations, we have reviewed the procedural rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings.

We find, however, contrary to the Judge, that the Respondent violated section 7116(a)(1), (5) and (8) of the Statute by refusing to furnish the disputed information to the Union.

II. Background

A. Facts

The Union is the exclusive representative of a unit of employees of the United States Park Police. In connection with the Union's processing of four grievances, each of which had been filed on behalf of a different employee, the Union made four requests for information. The Respondent furnished all information requested with the exception of documents or portions of documents containing recommendations, concurrences, or opinions of supervisors or managers relating to the disciplinary actions and to the sick leave requests of the employees.

B. Authority's Decision in 26 FLRA 441

On March 13, 1987, based on a stipulated record, the Authority issued National Park Service, National Capital Region, United States Park Police, 26 FLRA 441 (1987) (National Park Service). The Authority held that disclosure of the disputed information was prohibited by section 7106 because it would improperly interject the Union into management's internal deliberative process concerning the exercise of management's right to take disciplinary action and assign work under section 7106(a)(2)(A) and (B). Accordingly, the Authority concluded that the Respondent's failure to furnish the Union with the information did not violate section 7114(b)(4) of the Statute.

C. Court's Decision

In National Labor Relations Board Union, Local 6 v. FLRA and Police Association of the District of Columbia v. FLRA, 842 F.2d 483 (D.C. Cir. 1988), the U.S. Court of Appeals for the District of Columbia Circuit held, in consolidated cases, that section 7106 does not bar the disclosure of information under section 7114(b)(4) of the Statute. The court vacated the Authority's decision in National Park Service and remanded the case to the Authority for consideration of the Respondent's other arguments.

D. Authority's Decision and Order on Remand

Pursuant to the remand from the court, the Authority concluded in 32 FLRA 308 that the parties' stipulation did not provide sufficient evidence to determine whether the information sought by the Union was "necessary" within the meaning of section 7114(b)(4)(B), and whether it constituted "guidance, advice, counsel, or training relating to collective bargaining" under section 7114(b)(4)(C) of the Statute. The Authority further concluded that those determinations more appropriately would be made by an Administrative Law Judge based on hearing testimony and, if deemed necessary by the Judge, by examination of the documents in camera. Accordingly, the case was remanded for findings of fact and consideration by a Judge.

III. Administrative Law Judge's Decision

A. Judge's Rulings on Motions and Requests

Prior to the hearing before the Judge, the General Counsel issued a subpoena duces tecum, under section 2429.7 of the Authority's Rules and Regulations, requiring the production of the disputed documents. The Respondent did not comply with the subpoena, but, rather, filed a Motion to Revoke the Subpoena with the Authority's Regional Director under 2429.7(e) of the Rules and Regulations. The Regional Director referred the motion to the Chief Administrative Law Judge, who referred it to the Judge for a ruling.

At the hearing, the Judge refused to enforce the General Counsel's subpoena. The Judge also denied the General Counsel's alternative request that the documents be produced under a protective order. The Judge ruled that the documents should be examined by the Judge in camera. The Judge asked the Respondent to furnish the documents to him for his in camera examination. The Respondent complied with the Judge's request.

B. Judge's Decision

The Judge found that the recommendations, concurrences, and opinions of managers and supervisors withheld by the Respondent constituted guidance, advice, and counsel provided for management officials or supervisors, relating to collective bargaining within the meaning of section 7114(b)(4)(C) of the Statute.(*) The Judge concluded that the reference to "'negotiations of subjects within the scope of collective bargaining'" in section 7114(b)(4)(B) was "inherently more narrow than 'relating to collective bargaining'" in section 7114(b)(4)(C). Judge's Decision at 11. The Judge noted that the disputed documents contained the recommendations and concurrences of managers and supervisors on disciplinary actions and sick leave requests. In the Judge's view:

There [was] no question that in each instance the information withheld related to collective bargaining[.] . . . Nor [was] there any doubt that each recommendation and each concurrence . . . constituted guidance, advice or counsel to management or supervisors.

Id. at 13.

Accordingly, the Judge found that the information withheld by the Respondent was exempted from disclosure under section 7114(b)(4)(C) of the Statute. The Judge noted that the parts of the documents entitled "Nature of the Complaint" and "Previous Record" did not constitute guidance, advice or counsel within the meaning of section 7114(b)(4)(C), and the Respondent's failure to furnish those portions of the documents violated section 7114(b)(4) of the Statute. Id. at 6 n.4. However, the Judge concluded that this issue was not raised by the parties in this case. Based upon his reading of the parties' stipulation, the Judge concluded that the case before him involved only requests for supervisory recommendations and concurrences. Therefore, the Judge made no finding on the issue of whether the Respondent violated the Statute by failing to furnish other parts of the documents.

The Judge further concluded that the recommendations and concurrences of the managers and supervisors were not necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining within the meaning of section 7114(b)(4)(B) of the Statute. According to the Judge:

[k]nowledge as to which lower level supervisor recommended or concurred in any action [was] neither necessary nor relevant to the full understanding and discussion of the case. . . . and . . . would not be useful in processing grievances.

Id. at 14. In the Judge's view, if management proposed to take an action against a bargaining unit employee, the Union only needed to know "what action [was] going to be taken together with the factual basis and rationale for the decision, and the corrective action . . . to be taken." Id. Accordingly, the Judge recommended that the consolidated complaint be dismissed.

IV. General Counsel's Exceptions

First, the General Counsel argues that the Judge erred in denying its request that the documents be disclosed to the parties under a protective order. In the General Counsel's view, the Judge "equated the General Counsel's role in prosecuting the complaint with that of the exclusive representative seeking data under section 7114(b)(4) of the Statute." General Counsel's Exception's at 3. According to the General Counsel, the disclosure of the documents to the exclusive representative prior to a determination on the merits would be inappropriate. However, the General Counsel maintains that the Judge's denial of its request that the disputed documents be disclosed "to the attorneys for the General Counsel and the Charging Party" prevented them from effectively and fully arguing their positions "since they had no idea what exactly was in these documents." Id. (emphasis in original).

The General Counsel requests that the Authority "reaffirm" that in situations such as this, the Judge should disclose the disputed documents to counsel for the parties "under a protective order as opposed to the in camera approach utilized by the [Judge] in this case." Id. at 4. The General Counsel also requests that the Authority "disavow" the Judge's statements which imply that the General Counsel's subpoena should have been quashed because the documents were "'not material to determination of the unfair labor practice.'" Id.

Second, the General Counsel argues that the Judge incorrectly interpreted section 7114(b)(4)(C) of the Statute. The General Counsel argues that the Judge's analysis, which concludes that the exception to disclosure in section 7114(b)(4)(C) is broader than the right to data in section 7114(b)(4)(B), "is contrary to the plain language of the Statute." Id. at 5. The General Counsel asserts that "[t]here is no distinction, 'inherently' or otherwise, set forth in the Statute concerning the phrase 'collective bargaining'" as used in subsections (B) and (C). Id. According to the General Counsel, if the Judge's rationale is accepted, then "all personnel matters relate to 'collective bargaining[,]'" and "all management recommendations, concurrences or remarks on personnel matters" are exempt from disclosure under section 7114(b)(4)(C). Id. at 6 (emphasis in original). The General Counsel argues that the correct interpretation of section 7114(b)(4) of the Statute is: (1) the references to "collective bargaining" in subsections (B) and (C) are synonymous; and (2) the term "collective bargaining" means "the 'collective bargaining' process." Id. at 5-6. Thus, the General Counsel maintains that section 7114(b)(4)(C) exempts from disclosure only recommendations, concurrences and comments which are made "in the context of negotiations, grievance processing, contract administration and any other labor-management activity." Id. at 6 (emphasis in original).

The General Counsel also excepts to the Judge's conclusion that the recommendations, concurrences, and comments of managers and supervisors were not necessary within the meaning of section 7114(b)(4)(B) of the Statute. The General Counsel notes that the Union sought the information in connection with the processing of unit employees' grievances over the Respondent's decisions imposing disciplinary actions and denying leave requests. The General Counsel asserts that the Respondent's decisions "did not occur in a vacuum," but that the Respondent "relied upon the recommendations, concurrences, and opinions of the supervisors and managers." Id. at 9 The General Counsel argues that the recommendations and comments of the managers and supervisors "will assist the Union in evaluating the merits of the grievances and the propriety of pursuing any of these matters to arbitration." Id. at 10. The General Counsel requests that the Authority reverse the Judge and find that the requested documents are necessary within the meaning of section 7114(b)(4)(B) of the Statute.

Further, the General Counsel argues that the Judge should have found that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by withholding the factual portions of the requested documents. The General Counsel asserts that the Judge "entirely misconstrued the language and context of the parties' stipulation of facts." Id. at 14. The General Counsel requests that the Authority find that the Respondent violated the Statute by not releasing the factual portions of the documents to the Union.

V. Respondent's Opposition

The Respondent contends that the Judge did not commit a procedural error by allowing the documents to be inspected only in camera "since . . . he provided Counsel for the parties with details of their contents." Respondent's Opposition at 4. The Respondent asserts that there was no requirement in the Authority's remand order that the documents be provided to counsel for the parties under a protective order. The Respondent argues that under Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 30 FLRA 127 (1987) (National Weather Service), the Judge retains "the discretion to make the decision concerning what is relevant and material evidence under the circumstances of each case." Id.

On the merits, the Respondent argues that the Judge correctly determined that the documents: (1) were not necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining under section 7114(b)(4)(B); and (2) constituted intra-management guidance relating to collective bargaining, which is exempted from disclosure under section 7114(b)(4)(C). The Respondent also argues that the Judge correctly determined that the Respondent did not violate the Statute by failing to furnish the Union the factual portions of the documents. According to the Respondent, by stipulating that the Respondent furnished the Union with all the facts requested, except documents or portions of documents containing recommendations, concurrences, and opinions of managers and supervisors, "the parties waived their rights to receive any other factual information." Id. at 12.

VI. Analysis and Conclusions

A. Judge's Rulings on Motions and Requests

We have carefully reviewed the rulings of the Judge made at the hearing. We find that the Judge was not required to grant the General Counsel's request that the documents be disclosed to the parties under a protective order. Rather, we find that it is within the discretion of the Judge presiding in the case to decide whether disputed documents should be disclosed to the parties under a protective order or examined by the Judge in camera, subject, of course, to review by the Authority on timely filed exceptions.

The record reveals that at the beginning of the hearing, the Judge refused to enforce the General Counsel's subpoena. The Judge also denied the General Counsel's alternative request that the documents be produced under a protective order. The Judge ruled that the documents should be examined by the Judge in camera. The Respondent furnished the parties with sanitized copies of the documents. The Judge described for the record the general nature and contents of the documents.

In this case, we conclude that the Judge did not abuse his discretion by deciding not to require the Respondent to disclose the documents under a protective order, but, instead, to examine the documents in camera. We further conclude that contents of the documents were adequately and accurately described by the Judge so as to provide for meaningful, direct and cross-examination and arguments for counsel for the General Counsel and the Union. Therefore, we find that the Judge's denial of the General Counsel's request for disclosure of the documents under a protective order did not constitute prejudicial error. Accordingly, we affirm the Judge's ruling on the General Counsel request for production of the documents under a protective order.

B. The Requested Recommendations and Opinions of Managers and Supervisors Do Not Constitute Guidance, Advice, Counsel, or Training Under Section 7114(b)(4)(C) of the Statute.

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

In National Labor Relations Board, 38 FLRA No. 48, slip op. at 17-18 (1990) (NLRB) [2-CA-50471], 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 disputed recommendations, concurrences, and opinions of managers and supervisors do not constitute guidance, advice, or counsel relating to "collective bargaining" within the meaning of section 7114(b)(4)(C) of the Statute. In so doing, we reject the Judge's conclusion that the requested documents related to collective bargaining because they concerned discipline and sick leave and involved actual or potential grievances.

In this case, the recommendations, concurrences and opinions of the managers and supervisors were not made in a context where the Respondent and the Union were engaged in actual bargaining. Moreover, the disputed documents were not guidance, advice, or counsel to management concerning the processing of the four grievances. Rather, the recommendations of the managers and supervisors were made prior to the filing of the grievances, when management was considering whether to take disciplinary action against two bargaining unit employees and whether to grant or deny the sick leave requests of two other bargaining unit employees. Therefore, we conclude that the recommendations, concurrences, and opinions of the managers and supervisors, withheld by the Respondent, do not constitute guidance, advice, counsel, or training for management relating to collective bargaining within the meaning of section 7114(b)(4)(C).

C. The Requested Documents Were Necessary for the Union to Perform its Statutory Obligations

We note that there is no contention by the Respondent that the disputed information is not normally maintained and reasonably available. We also note that the Respondent does not contend that disclosure of the disputed information is prohibited by law. Therefore, we find that the requested information is normally maintained and reasonably available within the meaning of section 7114(b)(4) of the Statute, and that disclosure of the requested information is not prohibited by law.

With respect to the issue before us, we find, contrary to the Judge, that the requested documents were necessary for the Union to process the employees' grievances.

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 processing 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 No. 110, slip op. at 10 (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 Union requested the Respondent to provide it with all information pertaining to the disciplinary actions and sick leave requests of the grievants. The Respondent furnished all information requested, except for documents or portions of document containing the recommendations, concurrences, or opinions of managers and supervisors concerning the sick leave requests and disciplinary actions taken against the grievants. The Judge concluded that the recommendations and opinions of the managers and supervisors would not be useful in processing the grievances. We disagree with the Judge's conclusion.

Under section 7114(b)(4) of the Statute, the Union is entitled to information which will enable it to realistically assess the strengths or weaknesses of the employee's position. See, for example, NLRB, 38 FLRA No. 48, slip op. at 12 (1990); U.S. Department of Labor, Office Of The Assistant Secretary For Administration and Management, 26 FLRA 943, 950 (1987). In the circumstances of this case, we conclude that the recommendations and comments of the managers and supervisors were necessary for the Union to: (1) fully understand the basis underlying the Respondent's decision on the matter; (2) realistically assess and evaluate the merits of the employee's grievance; and (3) determine the most appropriate course of action to take in the matter. Therefore, we find that the recommendations, concurrences, and opinions of the supervisors and managers were necessary within the meaning of section 7114(b)(4)(B) of the Statute for the Union to fulfill its representational responsibilities.

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 the union to carry out effectively its representational functions. In this case, there is no dispute that the information was reasonably available and normally maintained and that disclosure of the information was not prohibited by law. In addition, we have concluded that the recommendations and comments of the managers and supervisors were necessary for the Union to process the employees' grievances and 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.

Therefore, we find that the Respondent was required by section 7114(b)(4) of the Statute to furnish the disputed information 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 National Park Service, National Capital Region, United States Park Service, shall:

1. Cease and desist from:

(a) Failing and refusing to furnish the Police Association of the District of Columbia, the exclusive representative of its employees, with requested information concerning disciplinary actions taken against and sick leave requests of bargaining unit employees, including the recommendations, concurrences, and opinions of the supervisors and managers.

(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 Police Association of the District of Columbia, the exclusive representative of its employees, with the requested information concerning the disciplinary actions taken against and sick leave requests of the bargaining unit employees, including the recommendations, concurrences, and opinions of the supervisors and managers.

(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 Regional Director, National Capital 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 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 III, 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 Police Association of the District of Columbia, the exclusive representative of our employees, with the requested information concerning the disciplinary actions taken against and sick leave requests of bargaining unit employees, including the recommendations, concurrences, and opinions of the supervisors and managers.

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 Police Association of the District of Columbia the requested information, including the recommendations, concurrences, and opinions of the supervisors and managers.

_____________________________
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 any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region III, Federal Labor Relations Authority, whose address is: 1111 18th Street, N.W. 7th Floor, P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone number is: (202) 653-8500.




FOOTNOTES:
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*/ The Union made four separate requests for information, in connection with the processing of four grievances. In Case No. 3-CA-60168, the Respondent refused to furnish the Union with a copy of a letter dated October 22, 1985, from Lieutenant Rodney to the Commander, Field Offices Division, through the Commander, New York Field Office, which set forth the opinions and recommendations of Lieutenant Rodney and the Commander of the New York Field Office concerning the disciplinary action to be taken against the grievant. In Case No. 3-CA-60182, the Respondent refused to provide the Union with a copy of a memorandum of January 24, 1986, from the Field Commander to the Commander, West District which set forth the recommendations and concurrences of supervisors and managers regarding the proposed disciplinary action to be taken against the grievant. In Case No. 3-CA-60183, the Respondent deleted and refused to furnish the Union with the opinions and recommendations of its supervisors and managers regrading the grievant's sick leave request. In Case No. 3-CA-60288, the Respondent refused to furnish the Union with a copy of the "Administrative Remarks" section of the U.S. Park Police Illness/Inquiry Record dated 10/16/85, which set forth the recommendation of Lieutenant Tomlinson on the grievant's sick leave request.