:40:1070(96)CA - - Dept. of Treasury, IRS, Washington, D.C. and IRS, Chicago, Illinois and NTEU and NTEU, Chapter 10 - - 1991 FLRAdec CA - - v40 p1070

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[ v40 p1070 ]
40:1070(96)NG
The decision of the Authority follows:


40 FLRA No. 96

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

WASHINGTON, D.C.

AND

INTERNAL REVENUE SERVICE

CHICAGO, ILLINOIS DISTRICT OFFICE

(Respondent)

and

NATIONAL TREASURY EMPLOYEES UNION

AND

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 10

(Charging Party/Union)

5-CA-60265

32 FLRA 237 (1988)

32 FLRA 717 (1988)

DECISION AND ORDER ON REMAND

May 29, 1991

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 General Counsel and the Respondent to the attached decision of the Administrative Law Judge. The General Counsel and the Charging Party filed oppositions to the exceptions filed by the Respondent. The Respondent did not file an opposition to the exceptions filed by the General Counsel.

The complaint alleges that the Respondent violated section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by its failure to provide the Union with documents requested under section 7114(b)(4) of the Statute.

The Judge originally dismissed the complaint in this case. As discussed below, in two previous decisions, the Authority remanded this case to the Judge to determine the issues raised in light of National Labor Relations Board Union, Local 6 v. FLRA, 842 F.2d 483 (D.C. Cir. 1988) (NLRB Union, Local 6). 32 FLRA 237 (1988); 32 FLRA 717 (1988).

On remand, the Judge found that the requested documents: (1) were not prohibited by law from being released based on the governmental deliberative process privilege; (2) were necessary for the Union to perform its representational duties on behalf of a unit employee; and (3) were not guidance, advice, counsel or training which would permit the Respondent to refuse to disclose the documents under section 7114(b)(4)(C) of the Statute. Accordingly, the Judge found that the Respondent had violated section 7116(a)(1), (5) and (8) of the Statute by refusing to furnish the documents to the Union.

Pursuant to section 2423.29 of our Rules and Regulations, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. For the reasons stated below, we agree with the Judge that the Respondent violated section 7116(a)(1), (5) and (8) of the Statute by refusing to furnish the documents to the Union.

II. Background

A. Facts

The documents requested by the Union were related to the proposed removal of a unit employee for making false and derogatory comments about another employee. Under the parties' collective bargaining agreement, the employee had the right to present evidence by oral and/or written presentation prior to the Respondent's final decision. Union Steward Michael Peacher represented the employee and, in order to assist the employee in preparing for the oral and written replies, made various requests for information, including the information at issue here. Specifically, the Union requested "any and all material pertaining to the selection of the appropriate penalty . . . ." 32 FLRA at 244.

Peacher was seeking documents produced by individuals in the employee's supervisory chain of command, in which supervisors had reviewed the facts of the case, considered any mitigating factors, including those set forth in Article 39 of the parties' Master Labor Agreement, and recommended a specific penalty. Three such documents existed: (1) one written by Mr. Novack, the employee's second line supervisor, and signed by his third line supervisor; (2) one indicating the authorship of that document; and (3) one identified as a "buck slip" indicating that the employee relations officer agreed with the first document.

According to Peacher, he sought the documents to determine whether the allegations against the employee were supported and, if so, whether the Respondent had imposed the proper penalty. Peacher stated that he had no evidence that any factor in Article 39 had been considered. He also stated that the requested information would assist him in his analysis of the merits of the case and the hazards of litigation and aid him in making a determination as to whether the case should be taken to arbitration. Such information, according to Peacher, would be both vital and critical to the Union in making its decision.

The Respondent refused to disclose the requested documents, claiming that they were exempt under section 7114(b)(4)(C) of the Statute and under the general governmental privilege for intra-agency advice and opinion.

After the Respondent's refusal to provide the documents, the Union made oral and written replies to the proposed termination, and held further discussions with the Respondent. In accordance with an agreement reached with the Union, the Respondent reduced the penalty to a 15-day suspension. The Union reserved the right to reopen the case based upon any additional evidence that it might subsequently secure, including the documents at issue in this case.

B. Authority's Decision and Order Remanding Case in 32 FLRA 237

In his initial decision, the Judge concluded that this case was controlled by National Park Service, National Capitol Region, United States Park Police and Police Association of the District of Columbia, 26 FLRA 441 (1987) (National Park Service), which issued after the hearing in the matter. Based on National Park Service, the Judge found that the Respondent was not obligated to furnish documents which constitute an interference with management's deliberative process concerning the exercise of a management right under section 7106 of the Statute. 32 FLRA at 248. Therefore, the Judge concluded that the Respondent had not violated section 7116(a)(1), (5) and (8) of the Statute and he recommended that the case be dismissed.

Thereafter, in NLRB Union, Local 6 the U.S. Court of Appeals for the District of Columbia Circuit vacated and remanded the Authority's decisions in National Park Service and a companion case, National Labor Relations Board, 26 FLRA 108 (1987). The court held that section 7106 of the Statute does not prohibit the disclosure of anything and, therefore, that it does not bar the disclosure of information requested under section 7114(b)(4). 842 F.2d at 486.

In 32 FLRA 237, the Authority concluded, consistent with the court's decision in NLRB Union, Local 6, that the documents do not concern the "deliberative process" by which management exercises its rights under section 7106 of the Statute and, accordingly, found that the disclosure of the requested documents is not barred under section 7114(b)(4). 32 FLRA at 240. The Authority vacated the Judge's recommended decision of November 16, 1987, and remanded the case to the Judge to decide 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). Id. The Authority further suggested that if the Judge concluded that there was insufficient evidence to decide the issue, he could either reopen the hearing, view the subject documents in camera upon their being furnished by Respondent, or both. Id.

C. Authority's Order in 32 FLRA 717

In response to the Authority's decision in 32 FLRA 237 remanding the case, the Respondent on June 20, 1988, filed a Motion For Reconsideration or In the Alternative To Amend Remand Order. In its motion for reconsideration, the Respondent asserted that section 7106 was never raised before the Judge as a basis for its refusal to release the disputed documents. Rather, the Respondent asserted that it had contended before the Judge that it was prohibited by law from disclosing the information pursuant to the governmental deliberative process privilege.

In 32 FLRA 717, the Authority denied the Respondent's motion for reconsideration and granted Respondent's alternative motion to amend the scope of the remand order. The Authority noted that neither it nor the Judge had resolved the issue of whether release of the requested documents is prohibited by law "based on the governmental deliberative process privilege" and directed the Judge to consider all contentions necessary to resolve this case consistent with the court's decision in NLRB Union, Local 6. 32 FLRA at 719.

D. Judge's Order Dated July 29, 1988

On July 29, 1988, pursuant to the Authority's Orders of June 3 and July 22, 1988, the Judge issued the following Order:

Pursuant to telephonic communications on July 28, 1988, all parties agreed that reopening the record for additional testimony was unnecessary. The Respondent agreed, over objection by the General Counsel, to submit the subject documents for in camera inspection. In addition, all parties agreed to submit legal memorandum concerning the governmental "deliberative process privilege" and on any new case law developments, which might aid in resolving this matter, since the original briefs were submitted.

It is therefore, ordered that Respondent submit the subject documents for in camera review and that the parties submit legal memorandum [sic] no later than (30) thirty days after the date of mailing of this order. Thereafter, the Respondent furnished to the Judge the documents for an in camera inspection.

III. Administrative Law Judge's Decision

First, the Judge rejected the Respondent's contention that the requested documents are prohibited by law from disclosure under section 7114(b)(4) of the Statute because they are protected by the governmental deliberative process privilege. In this regard, the Judge found that the documents "made a clear, concise recommendation" and that they lost their "predecisional" status when the recommendation "was 'adopted, formally or informally, as Respondent's position' on the matter." Judge's Decision at 4 (quoting Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980) (Coastal States Gas Corp)). Further, in the Judge's view, "the governmental deliberative process privilege is not applicable to conduct based removal cases such as this where both issues of fact and mitigation must be explored by the exclusive representative in performing its representational functions." Id.

The Judge further concluded that the requested documents were necessary within the meaning of section 7114(b)(4)(B) of the Statute. According to the Judge:

The facts establish that the Union was not seeking the documents to attack Respondent's position on what penalty to impose or to bring the proposed penalty into issue. Peacher's testimony clearly shows instead that he was seeking to determine whether Respondent had considered the mitigating factors set out in Article 39 of the agreement; whether the document contained information which would assist him in his analysis of the merits of the case; and, aid him in making his own determination of whether the case should be taken to binding arbitration.

Id. at 5. In the Judge's view, these are legitimate representational functions. Id.

Next, the Judge concluded that the requested documents did not constitute guidance, advice, counsel or training under section 7114(b)(4)(C) of the Statute. In the Judge's view, "the penalty documents did not contain guidance, advice or counsel but merely the facts, the supervisors [sic] assessment and a discussion of some of the mitigating factors sought by the Union." Id. at 8. The Judge further determined that the documents "did not weigh any action but made a clear recommendation for action . . . ." Id.

Accordingly, the Judge found that the Respondent's refusal to furnish the documents to the Union was violative of section 7116(a)(1), (5) and (8) of the Statute.

IV. Positions of the Parties

A. General Counsel's Exceptions

First, the General Counsel excepts to the Judge's order that Respondent submit the documents at issue for an in camera review. General Counsel's Exceptions at 4. According to the General Counsel, the General Counsel and the Charging Party should have been permitted access to the documents for litigation purposes. The General Counsel argues that the denial of disclosure of the disputed documents to the General Counsel and the Charging Party prevented them from fully and effectively arguing their positions "since they [had] no idea what exactly is in the documents." Id. at 5. The General Counsel requested 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 5-6.

Second, the General Counsel excepts to the Judge's consideration of the governmental deliberative process privilege asserted by the Respondent. The General Counsel argues that the privilege was a common-law defense which was superseded by the Statute, and, therefore, is not applicable to this case. Thus, the General Counsel argues that the Judge incorrectly relied on Exemption 5 of the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (b)(5), and cases that interpret that statutory provision in disposing of this privilege defense. In this connection, the General Counsel argues that the FOIA is not a "law which prohibits" the disclosure of information to the exclusive representative within the meaning of section 7114(b)(4). Id. at 7.

The General Counsel further excepts to the Judge's decision not to adopt the General Counsel's interpretation of the term "collective bargaining" in section 7114(b)(4)(C) of the Statute and to the Judge's failure to find that the requested documents were not related to collective bargaining within the meaning of that provision. Id. at 8. The General Counsel asserts that the term "collective bargaining" in section 7114(b)(4)(C) includes "negotiations, grievances, contract enforcement and other such labor-management relations issues." Id. According to the General Counsel, if the Authority fails to properly interpret the term "collective bargaining" in section 7114(b)(4)(C), agencies will continue to erroneously interpret the term to mean "all personnel matters related[d] to collective bargaining, including promotions, demotions, details, reassignments, and, as in this case, adverse actions." Id. at 9.

B. Respondent's Exceptions

The Respondent excepts to the Judge's failure to conclude that the requested documents are protected by the governmental deliberative process privilege and therefore that they are prohibited by law from disclosure under section 7114(b)(4). The Respondent maintains that the documents fall within the privilege because they were "predecisional memoranda prepared in order to assist an agency decisionmaker in arriving at his decision, which are exempt from disclosure . . . ." Respondent's Exceptions at 6 (quoting Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 184 (1975) (Grumman Aircraft)). The Respondent notes that Exemption 5 of the FOIA incorporates the governmental deliberative process privilege and argues that Exemption 5 bars from disclosure documents related to the governmental deliberative process involved in making "personnel decisions." Id. at 10. In support of this argument the Respondent cites American Federation of Government Employees Local 2782 v. U.S. Department of Commerce, 632 F. Supp. 1272, 1277 n.6 (D.D.C. 1986) (AFGE) and Ryan v. Department of Justice, 617 F.2d 781, 791 (D.C. Cir. 1980) (Ryan).

The Respondent also excepts to the Judge's conclusion that the documents were necessary within the meaning of section 7114(b)(4)(B) of the Statute. The Respondent contends that the documents were neither relevant nor necessary for the Charging Party's representational responsibilities.

The Respondent asserts that the Union did not need the documents to determine whether the case should be taken to arbitration. The Respondent argues that under the parties' agreement the right to go to arbitration arises "only when the final decision regarding what penalty will be imposed is issued" and at the time the documents were requested no such final decision had been made. Respondent's Exceptions at 13. The Respondent also asserts that the Union did not need the documents to determine whether the Respondent had considered the mitigating factors set forth in the parties' agreement. The Respondent argues that under the agreement management is obligated to give "due consideration to the relevancy of any mitigating and/or aggravating circumstances" only with regard to an adverse action and not with regard to a proposed adverse action like the one in this case. Id. at 14. The Respondent further contends that the documents were not necessary for the Union to determine if the Agency had proved the appropriateness of the penalty. According to the Respondent, court decisions demonstrate that an agency does not have to prove the appropriateness of a penalty because that determination is a matter primarily within the discretion of the agency. Id.

Finally, the Respondent excepts to the Judge's failure to find that the requested documents constituted guidance or advice provided for management officials or supervisors relating to collective bargaining, under section 7114(b)(4)(C) of the Statute. The Respondent argues that the documents "all reflect assessment of the incidents, deliberations or thought processes, and recommendations concerning appropriate management action[]" and, therefore, fall within the ambit of section 7114(b)(4)(C). Id. at 17.

C. General Counsel's Opposition to Respondent's Exceptions

In its opposition, the General Counsel reiterates its position that the governmental deliberative process privilege and the FOIA are not applicable to the Statute and that the requested documents do not relate to collective bargaining within the meaning of section 7114(b)(4)(C) of the Statute. The General Counsel further contends that the Judge correctly determined that the requested documents were necessary within the meaning of section 7114(b)(4) of the Statute.

D. Charging Party's Opposition to the Respondent's Exceptions

The Charging Party contends that the Judge correctly concluded that neither the governmental deliberative process privilege nor the FOIA bars disclosure of the requested documents to the Union. The Charging Party argues that the common law governmental deliberative process privilege is not relevant to a union's right to information under section 7114(b)(4), and disputes, among other things, the Respondent's position that the privilege is applicable to internal personnel decisions made by the Respondent. The Charging Party argues that AFGE does not support the Respondent's position because the court in that case did not analyze the issue of whether the FOIA exempts such information from disclosure, but merely cited in a footnote two non-precedential decisions and Ryan, which "had nothing to do with 'personnel decisions.'" Charging Party's Opposition at 6. The Charging Party contends that the privilege is intended to protect against premature disclosure of proposed policies and advice to a decisionmaker, citing Coastal States Gas Corp., and that this case does not involve the disclosure of any policies. The Charging Party further asserts that, even if the deliberative process privilege applies, "a balancing of rights unquestionably tips in favor of the Union." Id. at 7.

The Charging Party further contends that the Judge correctly concluded that the requested documents were "necessary" within the meaning of section 7114(b)(4) of the Statute. The Charging Party maintains that the documents were needed to prepare the Grievant's oral reply to the proposed penalty. According to the Charging Party, the oral reply meeting provides the grievant with the best opportunity to convince the Agency to mitigate or drop its proposed penalty and the documents were sought to support such purposes. The Charging Party further argues that by raising in the oral reply meeting the issue of whether the Agency properly considered mitigating circumstances and by obtaining the Agency's response, the Charging Party will be better able to make a decision on whether to take the case to arbitration.

The Charging Party disputes the Respondent's position that the Agency has no obligation to prove that the proposed penalty is appropriate. The Charging Party argues that an agency has the burden of proving that the proposed penalty is appropriate. It also argues that an arbitrator can review an agency's penalty determination and that the arbitrator has a duty to consider mitigation. Further, the Charging Party maintains that the requested documents will assist it in policing and administering the parties' agreement.

Finally, the Charging Party contends that the Judge correctly concluded that the documents sought do not constitute guidance or advice relating to collective bargaining under section 7114(b)(4)(C). The Charging Party argues in this regard that the supervisor was simply providing a recommendation for action, based on his consideration of the mitigating factors and his assessment of the appropriate penalty.

V. Analysis and Conclusions

A. Preliminary Matter

The General Counsel contends that the Judge erred in not providing counsel for the General Counsel and the Charging Party with access to the requested documents under a protective order instead of the in camera procedure used by the Judge. We disagree.

It is within the discretion of the judge presiding in a case to decide whether disputed documents should be disclosed to the parties under a protective order or examined by the judge in camera, subject to review by the Authority on timely filed exceptions. National Park Service, National Capital Region, United States Park Service, 38 FLRA 1027, 1034 (1990), petition for review filed sub nom. National Park Service, National Capital Region, United States Park Service v. FLRA, No. 91-1087 (D.C. Cir. Feb. 15, 1991).

We conclude that the Judge did not abuse his discretion by following the Authority's suggestion to examine the documents in camera. We reject the General Counsel's argument that the denial of disclosure of the disputed documents to the General Counsel and the Charging Party prevented them from fully and effectively arguing their positions "since they [had] no idea what exactly is in the documents." General Counsel's Exceptions at 5. In this regard, we note that all parties, including the General Counsel and the Charging Party, in effect agreed to foreclose further direct and cross examination by agreeing on July 28, 1988, that reopening the record for additional testimony was unnecessary. Furthermore, we conclude that the contents of the documents were adequately and accurately described by the Judge in his decision so as to permit the parties to formulate arguments in their exceptions and oppositions. Therefore, we find that the Judge's failure to require the Respondent to disclose the documents under a protective order did not constitute prejudicial error. Accordingly, we affirm the Judge's order directing the Respondent to submit the documents for in camera review.

B. The Requested Documents Were Not Prohibited by Law from Disclosure

In its exceptions the Respondent repeats arguments made to the Judge that release of the documents is prohibited by the governmental deliberative process privilege. In support of its position, the Respondent cites cases that apply and interpret Exemption 5 of the FOIA. For the following reasons, we disagree with the Respondent.

Section 7114(b)(4) of the Statute limits an agency's duty to furnish data "to the extent not prohibited by law[.]" 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 that data's disclosure." NLRB Union, Local 6, 842 F.2d at 486.

FOIA Exemption 5 provides that the FOIA does not apply to matters that are:

[I]nter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency[.]

Courts have interpreted Exemption 5 as incorporating the governmental deliberative process privilege, which protects advice, recommendations, and opinions that are part of the deliberative, consultative, decision-making process of government. National Labor Relations Board v. Sears, Roebuck and Company, 421 U.S. 132, 150-154 (1975); Environmental Protection Agency v. Mink, 410 U.S. 73, 85-91 (1973).

We conclude that neither FOIA Exemption 5 nor the privilege it incorporates prohibits the disclosure of the requested documents. The Authority has previously determined that the FOIA does not prohibit release of data; rather, it permits agencies to invoke certain exceptions to withhold data falling within those exceptions. Department of the Army Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 26 FLRA 407, 412-13 (1987). Thus, neither FOIA Exemption 5 nor the governmental deliberative process privilege it incorporates prohibits by law the disclosure of the documents in this case under section 7114(b)(4) of the Statute. Id.

Even assuming that FOIA Exemption 5 and the governmental deliberative process privilege are applicable to section 7114(b)(4) of the Statute, we conclude that that statutory provision and the privilege it incorporates do not forbid the release of documents in the circumstances of this case. Thus, in our view, FOIA Exemption 5 does not forbid the disclosure of data, as in this case, that was part of a deliberative process in an agency personnel decision. Rather, based on a review of court decisions, we conclude that FOIA Exemption 5 is intended to apply only to data that was part of the deliberative process in the formulation of agency policy. In this regard, the U.S. Court of Appeals for the District of Columbia Circuit stated in Coastal States Gas Corp. that FOIA Exemption 5 and the governmental deliberative process privilege protect against premature disclosure of proposed "policies before they have been finally formulated[.]" 617 F.2d at 866. Further, the Supreme Court in Sears stated, with respect to FOIA Exemption 5, that "frank discussion of legal or policy matters in writing might be inhibited if the discussion were made public, and that the decisions and policies formulated would be the poorer as a result." 421 U.S. at 150 (citation omitted). See also Grumman Aircraft. The clear tenor of these cases is that the privilege protects documents prepared in the formulation of policy on behalf of an agency and not the type of personnel action at issue herein.

We disagree with the Respondent that AFGE and Ryan support the conclusion that FOIA Exemption 5 and the governmental deliberative process privilege apply to documents that were part of the deliberative process in an agency personnel decision. Admittedly, in footnote 6 of AFGE, the court states, without explanation, "that [FOIA] Exemption 5 protects the 'deliberative process' involved "in making personnel decisions[.]" 632 F.Supp. at 1277 n.6. In support of this statement, the court cites to Ryan. The documents barred from disclosure in Ryan, however, were characterized by the court as part of the deliberative process in the formulation of policy regarding the Attorney General's evaluation of selection processes for Federal district court judges. 617 F.2d at 791. They did not concern individual agency personnel matters. Similarly, although not expressly characterized as such by the court, the SF-52s, the documents barred from disclosure in AFGE, were intertwined with the Agency's policy-making process. Thus, the Court describes the SF-52s in AFGE as follows:

By analogy the Population Division's decision in the instant case to initiate the personnel process by an SF-52 requesting that a position be filled is, in essence, a decision to make more decisions with respect to such essential matters as whether the position is needed at all, at what cost and from whose budget, what the successful applicant will be expected to do, and to whom he or she will report, as well as who should be chosen to fill it.

632 F. Supp. at 1277. In contrast, the documents at issue in this case concern only one personnel action regarding one employee that has no reasonably foreseeable effect on the overall policy direction of the Agency. Therefore, we find that AFGE and Ryan do not support the conclusion that FOIA Exemption 5 and the governmental deliberative process privilege protect from disclosure documents written to assist an agency in making individual personnel decisions. Accordingly, we conclude that the documents sought in this case are not prohibited by law from disclosure.

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

We note, at the outset, that, as there is no contention by Respondent to the contrary, we find that the requested information is normally maintained and reasonably available within the meaning of section 7114(b)(4) of the Statute.

With respect to the issue before us, the Respondent argues that the requested documents were not necessary for the Union to perform its representational functions because at the time the Union requested the documents no decision had been made regarding the action to be taken against the employee and management was not yet required to consider mitigating factors. The Respondent further argues that an agency never has to prove the appropriateness of a penalty. We reject the Respondent's arguments.

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 the Air Force, Air Force Logistics Command, Sacramento Air Logistics Center, McClellan Air Force Base, California, 37 FLRA 987, 995 (1990); Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 34 FLRA 461, 462 (1990) (Fort Bragg).

Under section 7114(b)(4) of the Statute, the Union is entitled to information that enables it realistically to assess the strengths or weaknesses of a potential grievant's position. See, for example, National Labor Relations Board, 38 FLRA 506, 517 (1990) (NLRB) petition for review filed sub nom. National Labor Relations Board v. FLRA, No. 91-1044 (D.C. Cir. Jan. 24, 1991); U.S. Department of Labor, Office of the Assistant Secretary for Administration and Management, 26 FLRA 943, 950 (1987). The fact that the requested information involved a proposed, rather than a final, action would not affect the Union's needs to evaluate the information in this respect. Further, there is no requirement that information requested under section 7114(b)(4) of the Statute actually be used in a grievance. See Fort Bragg, 34 FLRA at 462 (agency's assertion that a grievance is nongrievable did not negate the agency's obligation under section 7114(b)(4) to provide information relating to that grievance). The Union may have other representational needs for the information even if it decides not to file a grievance after it obtains and evaluates the information. See American Federation of Government Employees, AFL-CIO, Local 1345 v. FLRA, 793 F.2d 1360, 1364 (D.C. Cir. 1986). Moreover, the Respondent's contention that a third party may not evaluate the appropriateness of its penalty does not affect its obligation to furnish the Union with the documents it seeks. See, for example, Department of the Air Force, Scott Air Force Base, Illinois, 38 FLRA 410, 416 (1990) (Scott Air Force Base) petition for review filed sub nom. Department of the Air Force, Scott Air Force Base, Illinois v. FLRA, No. 91-1042 (D.C. Cir. Jan. 24, 1991); Internal Revenue Service, National Office, 21 FLRA 646, 649 n.3 (1986).

In this case, the Judge concluded, and we agree, that the requested documents, which were created by the Respondent in connection with a removal action, were necessary for the Union to: (1) determine whether Respondent had considered the mitigating factors set forth in Article 39 of the parties' agreement; (2) determine whether the documents contained information that would assist the Union in its analysis of the merits of the case; and (3) aid the Union in making its own determination of whether the case should be taken to arbitration. In this regard, the issues of whether disciplinary action was warranted and, if so, whether the penalty assessed was appropriate are clearly matters to be decided by an arbitrator. See Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156, 1162 (1988). It follows that a union needs all relevant information regarding these issues in order to determine the proper course of action to take on behalf of a grievant it represents. See Scott Air Force Base, 38 FLRA at 416-17. Therefore, we find, in agreement with the Judge, that the documents were necessary within the meaning of section 7114(b)(4)(B) of the Statute for the Union to fulfill its representational responsibilities.

D. The Requested Documents Do Not Constitute Guidance, Advice, Counsel, or Training Under Section 7114(b)(4)(C) of the Statute

In 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.

38 FLRA at 522-23. 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 523.

Applying the foregoing interpretation of section 7114(b)(4)(C) to the facts and circumstances in this case, we conclude that the disputed documents 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 Respondent's claim that the requested documents fall within the ambit of section 7114(b)(4)(C) because they "reflect assessment of the incidents, deliberations or thought processes, and recommendations concerning appropriate management action." Respondent's Exceptions at 17.

The record reveals that the requested documents created by Respondent contained facts, supervisors' assessments and a discussion of some of the mitigating factors sought by the Union. Judge's Decision at 8. These assessments and discussions were not made in a context involving any type of negotiations between the parties. Moreover, the assessments and discussions of supervisors were made prior to the filing of a grievance, when management was considering disciplinary action against an employee. Therefore, the disputed documents could not be considered guidance, advice, or counsel to management concerning the processing of a grievance. Rather, they involved a typical personnel matter affecting an individual employee's working conditions, a matter specifically not exempted from disclosure in NLRB. Accordingly, we conclude that the requested documents do not constitute guidance, advice, counsel, or training for management relating to collective bargaining within the meaning of section 7114(b)(4)(C).

VI. 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 requested information was reasonably available and normally maintained. In addition, we have concluded that disclosure of the documents was not prohibited by law and that the information was necessary for the Union to process the employee's grievance. Further, the documents 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 requested documents 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 documents.

VII. 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 Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Chicago District, shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of National Treasury Employees Union and National Treasury Employees Union, Chapter 10, requested materials pertaining to the selection of the penalty regarding a bargaining unit employee against whom an adverse action had been proposed.

(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of 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 the National Treasury Employees Union and National Treasury Employees Union, Chapter 10, requested materials pertaining to the selection of the penalty regarding a bargaining unit employee against whom an adverse action had been proposed.

(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 District Director 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 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, Chicago Regional Office, 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 refuse to furnish the National Treasury Employees Union and National Treasury Employees Union, Chapter 10, requested materials pertaining to the selection of the penalty regarding a bargaining unit employee against whom an adverse action had been proposed.

WE WILL NOT in any like or related manner, int