44:1537(117)CA - - National Park Service, National Capital Region, and Police Asso. of the District of Columbia - - 1992 FLRAdec CA - - v44 p1537



[ v44 p1537 ]
44:1537(117)CA
The decision of the Authority follows:


44 FLRA No. 117

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/Union)

3-CA-60168
3-CA-60182
3-CA-60183
3-CA-60288
38 FLRA 1027 (1990)
32 FLRA 308 (1988)
26 FLRA 441 (1987)

DECISION AND ORDER ON REMAND

May 29, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit in National Labor Relations Board v. FLRA, 952 F.2d 523 (D.C. Cir. 1992) (NLRB v. FLRA). 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 refusing to furnish the Union with certain information requested under section 7114(b)(4) of the Statute. For the following reasons, we conclude that the complaint must be remanded to the Administrative Law Judge for further proceedings.

II. Background

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 grievances filed on behalf of unit employees, the Union requested information under section 7114(b)(4) of the Statute. As relevant here, the Respondent refused to furnish documents or portions of documents containing recommendations, concurrences, or opinions of supervisors or managers relating to certain disciplinary actions and sick leave requests.

Based on a stipulated record, the Authority concluded in National Park Service, National Capital Region, United States Park Police, 26 FLRA 441 (1987) (National Park Service I), that the Respondent was not required to furnish the Union with the disputed information under section 7114(B)(4) of the Statute because disclosure of the information was prohibited by section 7106 of the Statute. In National Labor Relations Board Union, Local 6 v. FLRA, 842 F.2d 483 (D.C. Cir. 1988), the D.C. Circuit held 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 I and remanded the case to the Authority. The Authority remanded the case to an administrative law judge to determine whether the requested information was necessary, under section 7114(b)(4)(B) of the statute, and whether it constituted guidance, advice, counsel, or training relating to collective bargaining under section 7114(b)(4)(C) of the Statute. Decision and Order on Remand, 32 FLRA 308 (1988).

On remand from the Authority, the Judge concluded that the requested recommendations, concurrences, and opinions of managers and supervisors relating to disciplinary actions and sick leave requests 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 also concluded that the requested information was not necessary, within the meaning of section 7114(b)(4)(B) of the Statute. Accordingly, the Judge found that the Respondent did not violate the Statute by failing to furnish the requested information.

In National Park Service, National Capital Region, United States Park Police, 38 FLRA 1027 (1990) (National Park Service II), the Authority found that the requested information did not constitute guidance, advice, or counsel under section 7114(b)(4)(C) of the Statute. The Authority also found that the requested documents were "necessary for the Union to process the employees' grievances." National Park Service, II at 1037. The Authority held that the Respondent's refusal to provide the Union with the requested information violated section 7116(a)(1), (5), and (8) of the Statute and directed the Respondent, among other things, to furnish the information to the Union.

In NLRB v. FLRA, the court agreed with the Authority's holding that the requested information did not constitute guidance, advice, counsel, or training relating to collective bargaining, within the meaning of section 7114(B)(4)(C) of the Statute. However, the court concluded that "an agency need not d