44:1545(120)CA - - NLRB and NLRB Union, Local 6 - - 1992 FLRAdec CA - - v44 p1545



[ v44 p1545 ]
44:1545(120)CA
The decision of the Authority follows:


44 FLRA No. 120

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL LABOR RELATIONS BOARD

(Respondent)

and

NATIONAL LABOR RELATIONS BOARD UNION

LOCAL 6

(Charging Party/Union)

2-CA-50471
38 FLRA 506 (1990)
32 FLRA 305 (1988)
26 FLRA 108 (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

An employee in the Respondent's Pittsburgh Office requested a part-time work schedule pursuant to a provision in the parties' collective bargaining agreement. By memorandum dated January 25, 1985, the Pittsburgh Regional Director transmitted a copy of the employee's request to the Associate General Counsel and the Assistant General Counsel in Washington, D.C. The memorandum set forth, among other things, the Regional Director's recommendation concerning the request. After review of the employee's request and the Regional Director's memorandum, the Assistant General Counsel denied the employee's request. Thereafter, as relevant here, the Union requested a copy of the memorandum and filed a grievance over the denial of the employee's request. After the Respondent denied the Union's request for the memorandum, the Union filed an unfair labor practice charge which resulted in the complaint in this case. The parties agreed to defer further processing of the grievance until completion of these ULP proceedings.

Based on a stipulated record, the Authority concluded in National Labor Relations Board, 26 FLRA 108 (1987) (NLRB I), that the Respondent was not required to furnish the Union with the memorandum under section 7114(b)(4) of the Statute because disclosure of the memorandum 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). The court vacated the Authority's decision in NLRB I and remanded the case to the Authority. The Authority remanded the case to an administrative law judge to determine whether the memorandum 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 305 (1988).

On remand from the Authority, the Judge found that the memorandum was necessary for the Union to discharge its representational responsibilities. The Judge also found that, except for the portions of the memorandum setting forth the Regional Director's recommendation concerning the request for part-time employment, the memorandum did not constitute guidance, advice, counsel or training for management officials or supervisors under section 7114(b)(4)(C) of the Statute. Accordingly, the Judge found that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by refusing to furnish the memorandum, with the portions setting forth the Regional Director's recommendation deleted, to the Union.

In National Labor Relations Board, 38 FLRA 506 (1990) (NLRB II), the Authority found that the memorandum was "necessary for the Union to fully know and understand the basis underlying the Respondent's position on the employee's request and to determine the most appropriate course of action to take in the matter." Id. at 517. The Authority also found that no part of the memorandum constituted guidance, advice, counsel or training relating to collective bargaining under section 7114(b)(4)(C) of the Statute. The Authority held that the Respondent's refusal to furnish the memorandum to the Union violated section 7116(a)(1), (5), and (8) of the Statute. The Authority directed the Respondent, among other things, to furnish the requested memorandum to the Union.

In NLRB v. FLRA, the court agreed with the Authority's holding that the memorandum did