48:0247(21)CA - - VA, Finance Center, Austin, TX and NFFE Local 1745 - - 1993 FLRAdec CA - - v48 p247
[ v48 p247 ]
The decision of the Authority follows:
48 FLRA No. 21
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF VETERANS AFFAIRS
FINANCE CENTER, AUSTIN, TEXAS
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1745
ORDER REMANDING CASE
August 17, 1993
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 to the attached decision of the Administrative Law Judge. The Respondent filed an opposition to the exceptions.
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 provide the Union with certain information requested under section 7114(b)(4) of the Statute. For the following reasons, we remand this case to the Chief Administrative Law Judge for further action consistent with this Order.
The Union represents a nationwide consolidated unit of employees, including employees of the Respondent. In March 1991, the Respondent assigned a management analyst to review and report on certain operations in its Commercial Accounting Division. The analyst used various sources to gather information for his report, including: (1) review of certain written materials, including a supervisory audit of work; (2) observation of employees and equipment; and (3) interviews with employees, members of a training committee, and instructors. The analyst completed the assignment and submitted a report to the Respondent. The report outlined the processes used to complete the particular work under review and "made recommendations regarding possible deficiencies in the process and possible replacement of equipment." Respondent's Post-hearing Brief at 2.
In April 1991, the Union was told by a supervisor that a study had been completed of how employees spent their duty time. The Union was concerned that changes in monitoring procedures, performance requirements, and other conditions of employment might result from the study. The Union was also concerned that the Respondent may have breached a 1986 settlement agreement which set forth guidelines for soliciting information about working conditions from unit employees. Finally, the Union suspected that, in conducting interviews with unit employees, the Respondent may have violated the Union's right under section 7114 of the Statute to be present at formal discussions.
The Union requested that the Respondent provide it with a copy of the information compiled by the Respondent, along with a copy of the report prepared by the analyst. Since on or about April 12, 1991, and continuing to date, the Respondent has refused to provide the requested information.
III. Administrative Law Judge's Decision
A. Preliminary Matters
Prior to the hearing, the Regional Director issued a subpoena under section 2429.7 of the Authority's Regulations directing the Respondent to produce the requested report at the hearing. The Respondent did not file a motion to revoke the subpoena under section 2429.7(e) of the Regulations.
At the hearing, the General Counsel requested that the Judge enforce the subpoena and direct the Respondent to make the report available for inspection by counsel for the General Counsel and Counsel for the Union. The Respondent stated that it would not consent to having the report released to the Union's counsel, but that it was willing to release the information to the Judge for his review only. The General Counsel then requested that the Judge impose sanctions against the Respondent for failure to comply with the subpoena. The Judge denied the General Counsel's request and ruled that he would examine the information in camera if necessary.
Following the presentation of the General Counsel's case, the Judge determined that he would review the requested report in camera. The Judge received the disputed document, adjourned the hearing at 11:45 a.m., and instructed the parties to reconvene at 12:45 p.m. Transcript (Tr.) at 95. However, when the General Counsel and the Counsel for the Union returned to the hearing room at 12:45 p.m., the hearing was not reconvened. Instead, the Judge and Counsel for the Respondent met and discussed the disputed information. Id. at 96, 104, 106. According to the General Counsel, the Judge and the Counsel for the Respondent remained alone in the hearing room with the door shut "from approximately 12:45 p.m. until 2:25 p.m[.]" G.C.'s Exceptions at 11. The General Counsel also claims that "[o]n two occasions[,] Counsel for the General Counsel approached and attempted to participate in the meeting, but was told to leave both times." Id. at 10-11.
Counsel for the Respondent states that, at 12:15 p.m., the Judge summoned her to the hearing room and requested clarification of several points concerning the disputed report. Counsel for the Respondent states that she advised the Judge that she "could not clarify some of these points without consulting [with] . . . the [m]anagement [a]nalyst who prepared the document." Opposition, Attach. A at 2. Counsel for the Respondent claims that she left the hearing room, consulted with the management analyst, returned to the hearing room, and relayed the information to the Judge. According to Counsel for the Respondent, for the next 20 to 30 minutes, the Judge "lectured [her] on the law" with regard to interviews conducted with unit employees. Id.
The Judge reconvened the hearing at 2:25 p.m., and stated that he had examined the document in camera. Tr. at 96. The Judge then described the contents of the document. Id. at 96-108. The Judge stated, in this regard, that he had "discussed at considerable length with [C]ounsel for Respondent the make-up and meaning" of the document. Id. at 104. Among other things, the Judge noted that a certain page of the document made "a disclosure that employees were talked to[.]" Id. at 106. The Judge stated that he "discussed at considerable length with [C]ounsel for Respondent . . . whether [that] . . . part of the document" constituted information "to which the Union would be entitled" under the Statute. Id. The Judge further stated that, although the hearing might "change our [sic] mind about it," he found "nothing in the document except the interview of employees" that "would be material subject to production" under the Statute. Id. at 107.
The Judge found that the portion of the requested report concerning employee interviews was necessary for the Union to evaluate the Respondent's compliance with the 1986 settlement agreement and to evaluate whether to file an unfair labor practice charge alleging that the Respondent conducted formal discussions with unit employees without affording the Union an opportunity to be present. The Judge concluded that the Respondent violated section 7116(a)(1), (5) and (8) of the Statute by failing to furnish the Charging Party with this portion of the report.
However, the Judge concluded that the Respondent did not violate the Statute by refusing to furnish the remainder of the report, which, according to the Judge, was exempt from disclosure under section 7114(b)(4)(C) of the Statute. The Judge stated that the report resulted from a study of the work performed in the Austin Finance Center, with the objective of improving the efficiency and effectiveness of the operations. According to the Judge, "[t]he whole purpose of the [r]eport was to present guidance, advice and counsel for consideration by management officials." Judge's Decision at 18. The Judge noted that some of the recommendations "would involve working conditions of unit employees which would require discussion with the Union." Id. at 22 (citation omitted). Moreover, in the Judge's view, even if it was determined that the report was not exempt from disclosure under section 7114(b)(4)(C), it was not necessary, within the meaning of section 7114(b)(4), because the Union did not show a "particularized need" for the information. Id. at 23 (citing National Labor Relations Board v. FLRA, 952 F.2d 523 (D.C. Cir. 1992) (NLRB v. FLRA)).
IV. General Counsel's Exceptions
The General Counsel contends that the entire report is necessary, within the meaning of section 7114(b)(4), because it involves the working conditions of bargaining unit employees and contains recommendations for changes in their conditions of employment. The General Counsel also contends that the report is not exempt from disclosure under section 7114(b)(4)(C). The General Counsel contends that the Judge's decision is inconsistent with the record and with the Authority's decision in National Labor Relations Board, 38 FLRA 506 remanded as to other matters sub. nom. NLRB v. FLRA.
In addition, the General Counsel excepts to the Judge's failure to impose sanctions on the Respondent for failing to comply with the subpoena. The General Counsel argues that the Judge's in camera examination of the requested information during an ex parte discussion with Counsel for the Respondent was prejudicial error and that the Judge's subsequent description of the document did not provide for meaningful direct and cross-examination.
V. Respondent's Opposition
The Respondent argues that the Judge "did not enter into ex parte discussions with . . . Counsel for Respondent because [the] discussions occurred within the context of his in camera review of the document in question." Opposition at 5. The Respondent also argues that the Judge provided a sufficient description of the report so that Counsel for the General Counsel and the Charging Party "could understand the contents and purpose of the document." Id. The Respondent contends that the primary purpose of the Judge's discussion with Counsel for the Respondent was "to clarify some technical points in the document." Id. The Respondent acknowledges that during the discussion, the Judge "took the opportunity to discuss why he felt that certain portions of the document were releasable to the Union" and, that the Judge "maintained that position throughout the course of the hearing as well as in his final decision." Id. at 5-6.
VI. Analysis and Conclusions
To safeguard the integrity of its proceedings and to ensure fairness, the Authority has promulgated regulations governing ex parte communications.(1) In particular, the regulations prohibit an administrative law judge or other Authority employee involved in the decision-making process of a proceeding from making, or receiving from, any interested person outside the agency any communications about the merits of the proceeding unless "advance notice . . . is given by the communicator to all parties in the proceeding and adequate opportunity afforded to them to be present." 5 C.F.R. § 2414.5. Any Authority employee who makes a prohibited oral ex parte communication must place on the public record a memoranda "stating the substance of the communication" and "the substance of all oral responses to the prohibited communication." 5 C.F.R. § 2414.8(a).
It is clear that the Judge's discussion with Counsel for the Respondent during his in camera examination of the requested report related to the merits of this unfair labor practice proceeding. Indeed, the Judge acknowledged that he had "discussed at considerable length with [C]ounsel for the Respondent the make-up and meaning" of various portions of the document which forms the basis of the ULP complaint. Tr. at 104. It is undisputed that the Judge did not permit Counsel for the General Counsel or the Charging Party to be present during the discussion. We conclude, therefore, that the discussion constituted an ex parte communication prohibited under part 2414 of our Rules and Regulations.
Further, the Judge failed to comply with the requirements of section 2414.7 of the Authority's Rules and Regulations. In this regard, the record shows that at the end of the ex parte discussion with Counsel for the Respondent, the Judge described the contents of the disputed document. However, the Judge did not describe the nature of the ex parte discussion about the document, other than his statements that he "discussed at considerable length" with Counsel for the Respondent not only the "make-up and meaning" of the document but also "whether [the Union would be] entitled" to a particular portion of the document. Tr. at 104, 107. These statements are insufficient to satisfy the requirements of section 2414.8 of the Authority's Regulations.
We note the Judge's statement that he had not prejudged the case. However, the extent and nature of the prohibited ex parte discussion coupled with the Judge's comments gave the appearance that, in fact, he had done so. In this regard, the Judge acknowledged, but did not elaborate on, his discussions "at considerable length" with Counsel for the Respondent about the disputed document and the Union's entitlement to it under the Statute. Tr. at 104. Moreover, the Judge also stated that, except for a certain portion of the document, the Judge found "nothing in the document . . . that . . . would be material subject to production" under the Statute. Tr. at 107.
In conducting an unfair labor practice hearing, it is essential that an administrative law judge act "not only to avoid actual partiality and prejudgment, but also to avoid even the appearance" of partiality. The New York Times Company, 265 NLRB 353 (1982). In this case, we conclude, in view of the appearance of partiality created by the Judge's prohibited ex parte discussion, the Judge's failure to disclose to the other parties the substance of the discussion, and the Judge's comments regarding the merits of the issues, that the Judge committed prejudicial error. See Strang v. United States Arms Control Agency, 920 F.2d 30 (D.C. Cir. 1990) (court vacated and remanded district court decision granting summary judgment on the basis of an ex parte, in camera hearing). See also Weberman v. National Security Agency, 668 F.2d 676 (2d. Cir. 1982) (court held that the Judge did not err by denying plaintiff's counsel the right to be present at an in camera inspection of a disputed document because the Judge reviewed the document in seclusion without argument from any counsel). Therefore, we will set aside the Judge's decision and remand the case to the Chief Administrative Law Judge for a hearing de novo before a different administrative law judge designated by him.(2)
The complaint is remanded to the Chief Administrative Law Judge for further proceedings consistent with this Order.
(If blank, the decision does not have footnotes.)
1. An ex parte communication is "an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given[.]" 5 C.F.R. § 2414.3(b).
2. In view of our determination, we do not address the Judge's recommended decision or the parties' exceptions to it.
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424.
DEPARTMENT OF VETERANS AFFAIRS
FINANCE CENTER, AUSTIN, TEXAS
and . Case No. 6-CA-10701
NATIONAL FEDERATION OF FEDERAL.
EMPLOYEES, LOCAL 1745 .
Charging Party .
Janet E. Harford, Esquire
For the Respondent
Ms. Jackie Muehlbach
For the Charging Party
Joseph T. Merli, Esquire
For the General Counsel
Before: WILLIAM B. DEVANEY
Administrative Law Judge
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. § 7101, et seq.1/, and the Rules and Regulations issued thereunder, 5 C.F.R. § 2423.1, et seq., concerns the Union's request on April 12, 1991, for, ". . . copies of data/information collected . . . including a copy of . . . [a] report/review, in connection with . . . [a] survey of employees conducted on or about March 1991." (G.C. Exh. 1(d), paragraph 10), which Respondent refused to provide for the reasons, inter alia, that the information, "constitutes guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining" and/or that, as no action whatever has been taken, the Union ". . . has no representational responsibilities with regard to the . . . [data] at this time" (G.C. Exh. 1(f), Affirmative Defenses (c) and (d)).
This case was initiated by a charge filed on May 6, 1991 (G.C. Exh. 1(a)). The Complaint and Notice of Hearing (G.C. Exh. 1(d)) issued on July 26, 1991; alleged that Respondent refused to comply with § 14(b)(4) of the Statute by refusing to furnish the information requested and thereby violated §§ 16(a)(1), (5) and (8) of the Statute; and set the hearing for October 10, 1991, pursuant to which a hearing was duly held on October 10, 1991, in Austin, Texas, before the undersigned. All parties were represented at the hearing, were afforded full opportunity to be heard, to introduce evidence bearing on the issues involved, and were afforded the opportunity to present oral argument which each party waived. At the conclusion of the hearing, November 12, 1991, was fixed as the date for mailing post-hearing briefs, which time was subsequently extended, on timely motion of Respondent, with which the other parties concurred, for good cause shown, to December 6, 1991. Respondent and General Counsel each timely mailed a Brief, received on, or before, December 9, 1991. Attached to Respondent's Brief was a document, consisting of two pages, designated "Attachment A". By motion dated December 17, 1991, General Counsel moved to strike "Attachment A" to Respondent's Brief and any argumemts based thereon. On December 24, 1991, Respondent filed a response, received on December 31, 1991. General Counsel's motion is granted.
The documents designated Attachment A are not part of the record of this proceeding; nor does this case involve any issue as to whether interviews were, or were not, formal discussions. Accordingly, Attachment A shall be removed from Respondent's Brief and no reference will be made thereto.2/ On the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings and conclusions:
1. The National Federation of Federal Employees,
Local 1745 (hereinafter referred to as the "Union") is the certified exclusive representative for a unit, appropriate for collective bargaining at the Department of Veterans Affairs Finance Center, Austin, Texas (hereafter referred to as "Respondent") (G.C. Exhs. 1(d), par. 9; 1(f), par. 9).
2. In early March 1991, Mr. Donald L. McLaughlin, Associate Director, Commercial Accounting Operation, tasked Mr. Joe H. Lopez, Management Analyst, to do an analysis of variance processing - "from beginning to end." (Tr. 113, 161, 162). A variance signifies a difference. Variances may be due, inter alia, to: a difference between the invoice and the receiving report; a discount given for payment within prescribed time limits; a penalty (interest) for non-payment within prescribed time limits; etc. (Tr. 132). Respondent's primary concern was to try to avoid lost discounts and to reduce interest penalties (Tr. 115).
3. Mr. McLaughlin received Mr. Lopez's Report, which is the data in question herein, on, or after May 3, 1991. Mr. McLaughlin gave copies to his three Division Chiefs (second-level supervisors); requested their comments; and instructed them not to take any action (Tr. 119). After receiving their comments, he filed the Report and the comments away (Tr. 119). No recommendation of the Report has been implemented (Tr. 119-120). Mr. McLaughlin further stated that, while the project spanned about two months, Mr. Lopez did no work on it for three or four weeks in the middle because of his total immersion in budget matters (Tr. 116).3/
4. Mr. Lopez stated that he began the project by obtaining all the "tools" that employees use, such as training guidelines, procedures, etc.; consulted with training instructors to format flow charts; obtained log sheets and microfilm; looked at the equipment employees use to process variances; observed operations; talked to employees (Tr. 162-163); and requested data from a supervisor (Tr. 171). Mr. Lopez testified that he talked to perhaps six of the forty-seven variance voucher examiners (Tr. 166, 167); that he asked how they felt about the variance tolerance level ($ 50.00) (Tr. 167); the definition of a variance, was it working? (Tr. 167); the quality of microfilm prints (Tr. 168, 172). He stated that he did not write down responses (Tr. 167); that his analysis did not involve in any manner the monitoring of employees and how long they stayed on breaks (Tr. 164); that no data on employees' absence, whether on leave or duty breaks, was kept by employee name or identifier (Tr. 166); that he had no conversation with supervisor Minnie Padin about employees wasting time or not working (Tr. 169); that he had generated no information to the effect that Ms. Padin's section goofs off or wastes time (Tr. 170); and that his report made no such assertion (Tr. 170). Mr. Lopez, for the analysis, identified three areas: Work, Support and Travel (Tr. 165) and on April 8, 9, 10, and 11 made and recorded, at specific predetermined times, (e.g., on April 8 at: 5:15 :30 :45; 6:00 :15 :30 :45; 7:00 :15 and :30; April 9 at: 8:30 :45; 9:00; :15 :45; 10:00 :15 :30 :45; 11:15 :30; 3:10 :25 :45), the number of employees observed in each area category (Tr. 165-166). As noted, this was based wholly on his observation (Tr. 105). The number of employees idled by down time of the system was shown for each observation time; the number of employees who had left duty at the end of their shifts was shown for each observation time; the number of employees out of the area was shown for each observation time, etc. (Tr. 105-106). But, his recorded observations had nothing to do with whether any employee was working or not working (Tr. 106).
5. On April 12, 1991, Ms. Minnie Padin, Fiscal Accounts Supervisor, Inquiry Audit Section (Tr. 19, 24, 148, 149), talked to Mr. Sterling Bunton, a steward, about his failure to file a form 3230 when he was leaving the area on Union business (Tr. 20, 21, 149). Mr. Bunton testified that Ms. Padin told him that, ". . . Joe Lopez had been doing a study in the work area and that they found, due to this study, that 38 percent of the time the employees were either talking or goofing off." (Tr. 23). Ms. Padin testified: (a) her admonishment of Mr. Bunton had nothing to do with Mr. Lopez's variance analysis (Tr. 150); (b) she made no such statement to Mr. Bunton (Tr. 155); and (c) she had advised all employees by written memorandum on February 11, 1991, that Mr. Lopez was going to be coming in to do a variance analysis and to give their full cooperation (Tr. 150; 155-156). Mr. Lopez testified that he did not generate any report to the effect that Ms. Padin's section goofs off or wastes time for about 38 percent of the time; that he was not aware of any such report (Tr. 170); that he had no conversation with Ms. Padin that related to time her employees were wasting or not working (Tr. 169); and, as noted herein above, his analysis did not involve the monitoring of employees and how long they stayed on breaks (Tr. 164). Also, as noted herein above, my in camera examination of Mr. Lopez's Report plainly showed that Mr. Lopez's recorded observations had nothing to do with whether any employee was working or not (Tr. 106); nor does the composite figure of 36 percent for "Travel", which includes employees "In Area"; "Out of Area"; "Idle" (because of equipment outage); "Leave"; and "Left Duty" (at completion of their shifts), have any relationship to any percentage of time that employees were "talking or goofing off". I found Mr. Lopez and Ms. Padin very credible witnesses and, therefore, credit their denial that any statement was made to Mr. Bunton that Mr. Lopez had done a study that showed that employees were either goofing off or talking any percentage of their time. Mr. Lopez's testimony that he generated no such information is fully corroborated by his Report. Whether Mr. Bunton was intentionally "blowing smoke" by attributing to Mr. Lopez and his activity expressions which had arisen in connection with Karen Wright (G.C. Exhs. 6 and 7; Tr. 49), which seems highly probable in view of the Union's effort to relate everything to Mr. Lopez's perceived "survey", discussed hereinafter, or whether he was honestly mistaken, I do not credit his testimony concerning the asserted statement by Ms. Padin.
6. Mr. Bunton told Ms. Jackie Muehlbach, President of Local 1745 (Tr. 31), on April 12, 1991, that Mr. Lopez had been in the area doing a survey that dealt with how employees spent their duty time (Tr. 26, 33), and she sent an electronic message to Mr. McLaughlin asking if Mr. Lopez, or anyone else, had done, ". . . a study or survey concerning the amount of time employees spend working, on breaks, drinking coffee, etc.?" and if so, requested a copy of the study (G.C. Exh. 3, page 1).
Mr. McLaughlin responded by electronic message on April 15, and stated in part that: "Joe Lopez is performing his duties as a Management Analyst. He is not keeping track of any data that is identified by a particular employee. Nor is he keeping track of time spent on break or drinking coffee. His review does involve contact with employees on a random basis. . . ." (G.C. Exh. 3, p. 2).
On April 16, 1991, Ms. Muehlbach in a further message to Mr. McLaughlin asserted that Ms. Padin told a steward that Mr. Lopez's survey had shown that employees were talking and goofing off and, as a result, ". . . 'They were going to start watching employees more closely.' If, as a result of something Joe compiled on how employees spend their time, supervisors are changing the way . . . they supervise and procedures they use in observing employees, the union needs to know . . . and we need copies of what Joe did . . . Therefore . . . the union requests copies of this information complied by Joe Lopez with how employees utilize their work day . . . ." (G.C. Exh. 3, page 3). Ms. Muehlbach also requested the names of employees to whom Mr. Lopez talked.
Mr. McLaughlin responded on April 17 stating, in part, that, "Talked to Ms. Padin and she stated that she had no such conversation with a union steward . . . If we utilize the data that he gathers in a way that would be appropriate to pursue with the union, then we certainly will do so." (G.C. Exh. 3, page 4).
On April 19, 1991, Ms. Muehlbach sent a message to Mr. Terry Potter, Assistant Personnel Officer (Tr. 38) in which she stated, in part, that, ". . . I have requested information from Don McLaughlin concerning what sounds like a time and motion study being conducted by Joe Lopez. This information . . . was refused by Mr. McLaughlin . . . I can see changes being made and I believe they are a result of the time and motion study. . . ." (G.C. Exh. 3, page 5).
Mr. Potter responded on April 22 stating, in part, that, ". . . I'm not going to be much help . . . I have spoken to Don McLaughlin and am advised Joe is merely doing his job. Once he completes his task management will review the information to determine whether things will remain as is or whether things may need to be done differently. If it is the latter Don has assured me he will fulfill his labor obligations." (G.C. Exh. 3, page 6).
7. Mr. Bunton and Ms. Muehlbach blamed Mr. Lopez and his presumed survey for Mr. Bunton's admonishment for having left his area on Union business without submitting a form 3230 (Tr. 41-42). Neither the form 3230 nor its use when leaving the work area was new (Tr. 42). Mr. Bunton asserted that he was just, "dropping off a document, which only took me anywhere from five to ten seconds" (Tr. 21), which may well have been true; but, as Mr. Bunton conceded, his supervisor, Ms. Padin, talked to him because another supervisor, Ms. Polston, had complained about Mr. Bunton talking to one of her employees, Karen Wright (Tr. 21, 22). Ms. Muehlbach's position appears to be that the 3230 should be used when a steward leaves the work area to talk to an employee to research for a grievance; but if the steward leaves the work area to deliver a document and while there has the same conversation, the 3230 had not been required (Tr. 42; G.C. Exh. 4); therefore a change, which must be attributable to Mr. Lopez. But, for reasons set forth above, the record shows that Mr. Lopez did not monitor employees and his observations had nothing to do with whether any employee was or was not working.
Ms. Muehlbach asserted that Mr. Lopez's report would be useful, depending on what was in it, to show disparate treatment of employee Karen Wright (Tr. 55), with respect to whom Mr. Bunton had written a letter to Ms. Polston on April 2, 1991 (G.C. Exh. 6) and a grievance was filed by Ms. Muehlbach on April 23, 1991 (G.C. Exh. 7).4/ Of course, as set forth above, Mr. Lopez's Report contains no information about employees wasting time or use of telephone or of comparative treatment of employees.
Ms. Muehlbach contended that Ms. Padin's requiring a "desk check" of her employees on May 15, 1991 (Tr. 45, G.C. Exh. 5) was the result of Mr. Lopez's survey (Tr. 48); however, the record shows that Ms. Padin requested that her employees list their work activities from 6:30 a.m. until 8:00 a.m., when she arrives, because she had got a lot of complaints from other supervisors that prior to her arrival there was a lot of time being wasted (Tr. 152-153, 154). Mr. Lopez had submitted his Report on May 3, 1991, so, clearly, no such information was for Mr. Lopez. Ms. Padin was in training and was not present when Mr. Lopez was in her area (Tr. 156); Ms. Padin had never seen Mr. Lopez's report and she very credibly testified that her action was not the outgrowth of his study of variance processing, "Well, not at all, because to date I haven't - - I have no knowledge of what the study was about." (Tr. 154). Further, and perhaps most important, as previously noted, Mr. Lopez did not monitor employees and his observations had nothing to do with whether any employee was or was not working.
Finally, Ms. Muehlbach asserted that Mr. Lopez's Report was necessary, ". . .to police this MOU to make sure that it was being adhered to. . . ." (Tr. 59). The MOU (Memorandum of Agreement) was an agreement entered into by the parties in 1986 (Tr. 59) in settlement of certain then pending unfair labor practice cases. The agreement provided, in part, that,
"1. Management will, within a reasonable time prior to such solicitation, furnish the Union a copy of the documents to be distributed to employees . . .
"2. . . . Management will, on written request . . . furnish the Union with a copy of the information obtained from employees relevant to subjects within the scope of collective bargaining . . . .
. . .
"4. Nothing herein shall be construed to apply to contacts between Employees and Management relating to investigations or inquiries pursuant to Federal Laws, directives, or regulations." (G.C. Exh. 8).
While the MOU was to be enforced through the grievance procedure (Tr. 59, 61, 63), no grievance was filed because of the fear an arbitrator might hold that the MOU applied only to written questionnaires (Tr. 63-64), a logical result in view of the quite specific language of paragraph 1 of the MOU, ". . . copy of the documents to be distributed. . . ." (G.C. Exh. 8).
1. Preliminary Matter.
As noted above, the issue in this case is whether Respondent, contrary to § 14(b)(4), violated §§ 16(a)(1), (5) and (8) by its refusal to furnish data. General Counsel obtained a subpoena duces tecum from the Regional Director for precisely the same data as the data of the § 14(b)(4) dispute. Respondent complied with the subpoena by having the custodian present with the data which it submitted for my in camera inspection but refused to release the data otherwise, ". . . because obviously it circumvents the whole purpose of this hearing." (Tr. 12). General Counsel, asserting non-compliance with the subpoena because, ". . . the document is not being circulated to the parties. . . .", requested by way of sanction that Respondent not be allowed to offer testimony or evidence (Tr. 14). General Counsel's request was denied (Tr. 14). Subsequently, I did examine the data in camera ("Management 'Control' Review, Commercial Accounting Operations, Austin Finance Center Variance Analysis"5/) and described and summarized each document (Tr. 96-108).
The Authority has made it clear that, "It is within the discretion of the judge presiding at a hearing to decide whether disputed documents should be received into evidence under a protective order or examined by the judge in camera." Department of Defense, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, 43 FLRA No. 46, 43 FLRA 476, 495 (1991); U.S. Department of the Treasury, Internal Revenue Service, Washington, DC, 40 FLRA 1070, 1079 (1991); National Park Service, National Capital Region, United States Park Service, 38 FLRA 1027, 1034 (1990); Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 30 FLRA 127, 138 (1987) (hereinafter referred to as "National Weather Service". This is dispositive of the issues of non-circulation to the parties, i.e., in camera examination, and denial of sanctions; nevertheless, in view of General Counsel's renewal of his request for sanctions in his Brief (General Counsel's Brief, pp. 2-3), a few additional comments may be in order inasmuch as the underlying assumption that sanctions could be imposed prior to resolution of the § 14(b)(4) dispute is, I believe, erroneous.
I am aware that the Authority in National Weather Service, supra, stated that,
". . . we specifically reject the Respondent's argument that the Respondent was not required to comply with the subpoena because the documents required to be produced under the subpoena were also the documents central to the merits of the section 7114(b)(4) dispute. Such argument is totally without merit. . . ." (30 FLRA at 138).
With all deference, such argument is wholly meritorious. Respondent is correct that compliance with such a subpoena without qualification would circumvent the entire purpose of this hearing. § 14(b)(4) does not grant unions an unqualified right to data. To the contrary, the right to data is subject to various limitations, including:
- not prohibited by law.
- which is normally maintained.
- which is reasonably available.
- which is necessary for full and proper discussion, understanding, and negotiation of subjects within the
scope of collective bargaining.
- which does not constitute guidance, advice, counsel, or training provided for management officials or
supervisors, relating to collective bargaining.
Consider, by way of example, the first limitation - prohibited by law. An agency refuses to supply data because
it asserts that disclosure is prohibited by law; a charge is filed, a complaint issues, and General Counsel subpoenas the data which the agency refuses to produce because, it asserts, disclosure is prohibited by law. Under the General Counsel's scenario, the agency should be barred from presenting any testimony or evidence to show that disclosure is, as it asserts, prohibited by law and, accordingly, that the agency be ordered to produce the data because, in effect, it has not been shown that disclosure is prohibited by law.
Ridiculous? Of course, as the Authority has inferentially recognized by emphatically stating that,
". . . the matter of sanctions . . . is within the discretion of the Administrative Law Judge presiding in the case. . . ." (National Weather Service, supra, 30 FLRA at 138).
Nevertheless, the concept is wrong; General Counsel's misuse of the subpoena, while a "cute" ploy, is reprehensible. As well stated in Electrical Energy Services, Inc., 288 NLRB 925 (1988),
". . . the General Counsel is attempting to use the subpoena duces tecum as a substitute for the Board order sought by the complaint. Not only is this procedure improper, but it is an abuse of the subpoena power because it would undercut the statutory requirement for an unfair labor practice hearing where the ultimate issue to be decided is whether the General Counsel is entitled to the information in question." (288 NLRB at 931).
It is quite time that, here, Respondent did not move to quash, or revoke, the subpoena for the reason that it elected to comply with the subpoena by bringing the data and submitting it for in camera inspection.
That General Counsel's position is untenable is further shown by the language of the Statute granting subpoena power.
§ 5 (g) provides, in pertinent part, that,
"(g) In order to carry out its functions under this chapter, the Authority may --
. . .
"(2) . . . issue subpenas as provided in section 7132 of this title . . . ." (5 U.S.C. § 7105 (g)(2)).
§ 32 provides, in pertinent part, that,
"(a) . . .
No subpena shall be issued under this section which requires the disclosure of intra- management guidance, advice, counsel, or
training within an agency or between an agency and the Office of Personnel Management." (5 U.S.C. § 7132 (a)). (Emphasis supplied).
It should be noted that the language of § 32 is quite different from the language of § 14(b)(4)(C). § 32 is a broad proscription of subpoena power for any intramanagement guidance, advice, counsel, or training, etc., without regard to whether there is a relation to collective bargaining, as there is, of course, in § 14(b)(4)(C). Where, as here, an agency has refused to supply data because it constitutes guidance, advice, counsel, or training, § 32 withdraws all subpoena power which, inter alia, would require disclosure of intramanagement guidance, advice, counsel, or training within an agency. Obviously, sanctions may not be imposed when the subpoena, itself, was invalid.
Further, in National Weather Service, supra, the Authority, at 30 FLRA at 138-139, relied, to some extent, on what it stated the Union had pointed out as "authoritative support" in the practice of the Federal Trade Commission, citing Exxon Corp. v. Federal Trade Commission, 665 F.2d 1274 (D.C. Cir. 1981). While it is true that Exxon Corp. involved an agency protective order, any reliance on Federal Trade Commission practice is misplaced. First, there is the breadth of the Federal Trade Commission subpoena power. See, e.g., United States v. Morton Salt Co., 338 U.S. 632 (1950). Thus, 15 U.S.C.A. § 49 provides, in relevant part, as follows:
". . . the Commission, or its duly authorized agent or agents shall . . . have access to, for the purpose of examination, and the right to copy any documentary evidence of any person, partnership, or corporation being investigated or proceeded against; and the Commission shall have power to require by subpoena the attendance and testimony of witnesses and the production of all such documentary evidence relating to any matter under investigation. . . ." (15 U.S.C.A. §§ 49).
Section 46 of Title 15 should also be noted, which in part, provides as follows:
"46. Additional powers of Commission. The Commission shall also have power -
. . .
(f) Publication of information; reports
To make public . . . such portions of the information obtained by it hereunder as are in the public interest; . . . Provided, That the Commission shall not have any authority to make public any trade secret or any commercial or financial information which is obtained from any person and which is privileged or confidential. . . ." (15 U.S.C.A. § 46)6/
Second, the Federal Trade Commission's subpoena power reaches "any documentary evidence of any person, partnership, or corporation being investigated or proceeded against. . . ." The Commission is entitled to, and obtains, any documentary evidence of any person being investigated or proceeded against by virtue of § 49. Thus, the Commission is entitled to documents without regard to whether it constitutes, or contains, trade secrets, names of customers, or commercial or financial information; but § 46 provides that the Commission, having got any documents under § 49, shall not make public any trade secret or any privileged or confidential or commercial or financial information. Accordingly, while there is a surface similarity, it is clear that the Commission obtains any document for its examination and that the protective order governs only its release by the Commission.7/ By contrast, the Authority's subpoena power, inter alia, specifically does not reach any data "which requires the disclosure of intramanagement guidance, advice, counsel, or training within an agency. . . ." Moreover, the duty to furnish data, under § 14(b)(4), attaches only if the limitations, as noted above, do not apply, e.g., disclosure is not prohibited by law; the data is necessary, within the meaning of § 14(b)(4), (B); the data does not constitute guidance, advice, counsel, or training for management officials relating to collective bargaining; etc. The Authority may not substitute a "protective order" for a determination of the scope of its subpoena power or for a determination of the duty to furnish data, pursuant to § 14(b)(4) of the Statute.
Third, under Federal Trade Commission practice, trade secrets, for example, as noted in n.7, are not divulged to competitors in the same litigation or to their house counsel, but only to outside trial counsel, so, by analogy, confidential management data would not be divulged, in any event, to the union. In the Statute, Congress has, however, foreshortened the matter by curtailing the subpoena power of the Authority, i.e., "No subpoena shall be issued under this section which requires the disclosure of intramanagement guidance, advice, counsel, or training within an agency. . . ." (5 U.S.C. § 7132(a)).
The Authority very correctly stated, in National Weather Service, supra, that,
". . . A party should not be permitted to foreclose review and argument by simply asserting that the evidence is exempt or privileged, and thereby also foreclose litigation of its position." (30 FLRA at 139).
That is the purpose and reason for the hearing, namely to litigate fully the § 14(b)(4) dispute, which, of course, imposition of sanctions as urged by the General Counsel would prevent. Its resolution is not dependent on, or even enhanced by, the imposition of sanctions to prevent litigation of each party's position. For example, if the union requested data which the agency asserts it does not maintain, the agency scarcely can produce that which it does not have. If the data is not subject to the Authority's subpoena power, the agency, in order to show that it constitutes guidance, advice, counsel, or training relating to collective bargaining, must either produce the data for examination in camera or suffer the inevitable consequences of adverse inferences drawn either as to content or the purpose, or both, of unseen documents. For example, here, the Union, not knowing what Mr. Lopez was doing, asserted that he had made a survey which showed that employees were talking and goofing off. Respondent denied that he had made any such survey; that he kept any data that is identified by a particular employee; or that he recorded time spent on breaks or drinking coffee. Nevertheless, in the absence of an opportunity to examine the data, the unavoidable inference would be that it did show that employees were talking and goofing off, otherwise, Respondent would have produced the document; nor could Respondent persuasively contend that data which it denied it possessed was none the less guidance, advice, etc. relating to collective bargaining. True, there may be consequences - indeed serious consequences - of not producing data for examination; but not on pain of precluding an agency litigating its position.
2. The Merits Of The Request For Information.
(a) The data requested was not shown to be necessary except as to the questioning of employees.
The data in question is the "Management 'Control' Review,
Commercial Accounting Operation, Austin Finance Center Variance Processing Analysis", prepared by Mr. Joe H. Lopez and submitted to the Associate Director on May 3, 1991. This document also referred to as "Report" was proffered to me for in camera examination and is transmitted herewith in a sealed envelope marked: "Management 'Control' Analysis, Received In Camera".
§ 14(b)(4) requires that an agency furnish data,
"(B) which is . . . necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining. . . ." (5 U.S.C. § 7114(b)(4)(B).
Initially, the Union asked for the Report because it believed it concerned the amount of time employees spent working, on breaks, drinking coffee, etc. When told that it did not, the Union asserted that it had been told by a supervisor that the Report had shown that employees were talking and goofing off. Respondent informed the Union that the supervisor denied any such conversation. Without doubt, had the Report concerned, or shown, the amount of time employees spent working, on breaks, drinking coffee, or goofing off, it might have assisted the Union; but it did not. Respondent had told the Union that it did not; the wholly credible testimony of Mr. Lopez showed that he did not monitor employees, did not assemble any data on employees' working time or break time, that no data on employees' absence, whether on leave or duty breaks, was kept by employee name or identifier, that he had no conversation with Ms. Padin about employees wasting time or not working, that he had generated no information to the effect that Ms. Padin's section goofs off or wastes time, and that his Report made no such assertion; the credible testimony of Ms. Padin showed that she made no statement as alleged by the Union; and my in camera examination of the Report showed, inter alia, that Mr. Lopez's recorded obseratvations had nothing to do with whether any employee was working or not, nor does the composite figure of 36 percent for "Travel", which includes employees "In Area", "Out of Area", "Idle" (because of equipment outage), "Leave", and "Left Duty" (at completion of their shifts) have any relationship to any percentage of time that employees were "talking or goofing off".
Ms. Padin's May 15, 1991, request that each of her employees list their work activities from 6:30 a.m.until 8:00 a.m., when she arrives, was not the result of Mr. Lopez's Report, which Ms. Padin had neither seen nor had any knowledge of, but, rather, I as have found, because other supervisors had complained to her that before her arrival a lot of time was being wasted. The Union and General Counsel assert that the Report was necessary to police a 1986 Memorandum of Understanding. Respondent had informed the Union that Mr. Lopez had contacted employees on a random basis. Notwithstanding that violation of a settlement agreement may not give rise to a violation of § 16(a) (5), Federal Aviation Administration, Aviation Standards National Field Office, Mike Monroney Aeronautical Center, Oklahoma City, Oklahoma, 43 FLRA 1221, 1230-1231 (1992), the portion of the Report concerning Mr. Lopez's contact with employees was necessary for the Union to evaluate whether it should file a grievance for non-compliance with the MOU. Notice of "Contact with employees on a random basis" did not provide sufficient information for an informed judgment.8/
Accordingly, as I stated at the hearing, that portion of the Report concerning questioning of employees was necessary, not only for purposes of evaluating compliance with the MOU, but also to provide the Union with necessary information in order to more adequately evaluate further action such as an unfair labor practice charge for conducting formal discussions without affording the Union an opportunity to be present. Except for that portion of the Report concerning the interview of employees, notwithstanding the hollow platitudes and bland assertions of General Counsel that the entire Report was "necessary" within the meaning of § 14(b)(4)(B), the record shows that such assertions are without support and the remainder of the report, which concerns variance processing, is not "necessary" within the meaning of § 14(b)(4)(B). At the hearing, I stated that I found page 2 of Exhibit 1 (of the "Fact Finding Paper" portion of the Report) in its entirety (Tr. 107) to be "necessary". Upon further reflection, inasmuch as General Counsel declined the offer (Tr. 180) and Respondent objected to the release of any portion of the Report (Tr. 180-181), I conclude that I was in error in finding that all of page 2 of Exhibit 1 should be furnished. Therefore, I now find that only the second paragraph of page 2 of Exhibit 1, entitled, "Deficiency" should be furnished, i.e., that nothing else on page 2 of Exhibit 1, consisting of the first paragraph entitled, "Recommendation"; the third paragraph entitled, "Recommendation"; the fourth paragraph entitled, "Deficiency"; and the fifth (last) paragraph entitled, "Recommendation" need be furnished. However, in further examining the Report, I now find that there is a further reference to the interview of employees on page 10 of Exhibit 1, and, accordingly, that the penultimate paragraph on page 10 entitled, "Deficiency" should be furnished; but nothing else on page 10 of Exhibit 1, consisting of the first three lines of a paragraph which begins on page 9; the next paragraph, which has no heading; the next paragraph entitled, "Deficiency"; the next paragraph entitled, "Recommendation"; and the last paragraph entitled, "Recommendation", need be furnished.
(b) The Report, except the portions dealing with questioning of employees as noted above, constituted guidance, advice, counsel, or training provided for management officials or supervisors.
It is clear that the Report constitutes guidance, advice and counsel as it is a review of variance processing in the Austin Finance Center with the objective of improving the procedure to eliminate the loss of discounts by securing prompt payment and to avoid incurrence of interest charges for late payments. This involved the review of equipment, processing of microfilm, quality of print copies, Readers/Printers, flow of material through variance processing, etc. Perceived deficiencies were noted and recommendations made. The whole purpose of the Report was to present guidance, advice and counsel for consideration by management officials. The Report was submitted to the Associate Director on, or after, May 3, 1991, and he had given a copy to each of his three Division Chiefs and requested their comments, but with specific instructions to each not to take any action. After receiving their comments, the Associate Director filed the Report and the comments away. No recommendation of the Report has been implemented and no first line supervisor has been shown the Report or advised of its content.
(i) Relates to collective bargaining.
In National Labor Relations Board, 38 FLRA 506 (1990) vacated and remanded sub nom.9/, National Labor Relations Board v. Federal Labor Relations Authority, et al., 952 F.2d 523 (D.C. Cir. 1992), the Authority stated that,
". . . The collective bargaining process includesthe negotiations conducted by the agency and the exclusive representative as well as the administration of the collective bargaining agreement. Contract administration by the agency and the exclusive representative encompasses those circumstances and situations where the parties are: (1) engaged in discussions concerning the application and interpretation of contract provisions . . . (5) engaged in other labor-management relations activities and interactions which affect the conditions of employment of bargaining unit employees or have an impact on the union's status as the exclusive bargaining representative of the employees." (38 FLRA at 519-520).
The Authority further stated,
". . . we conclude that the term 'collective bargaining' has the same meaning in subsections (B) and (C) of section 7114(b)(4). Therefore, we find that section 7114(b)(4)(B) obligates an agency to furnish to the exclusive representative data which is 'necessary for full and proper discussion, understanding and negotiation of subjects within the scope of' the collective bargaining process. Similarly, we find that section 7114(b)(4)(C) exempts from disclosure to the exclusive representative 'guidance, advice, counsel or training for management officials relating to' the collective bargaining process." (38 FLRA at 520).10/
Whether considered "discussions" within the meaning of paragraph (1) or "other labor-management relations activities" within the meaning of paragraph (5), the pre-decisional internal discussions both of unions and of agencies relates specifically to the collective bargaining process. Here, the recommendations, none of which have been implemented, concerned, by way of example, such possible changes as the pick-up time of material for microfilming by the contractor in order to get the microfilm to the variance examiners earlier (Tr. 138), improved quality of print copies which might involve different equipment, change of procedures, etc., some of which would involve working conditions of unit employees which would require discussion with the Union (Tr. 120). Indeed, the Court in National Labor Relations Board, supra, stated that,
"An agency's deliberation about the collective bargaining process is, precisely, its strategy." (952 F.2d at 531).
(ii) No particularized showing of need
The data in question, except for the portion concerning the questioning of employees, is guidance, advice, counsel or training for management officials that concerns the process of collective bargaining and is, therefore unavailable to the Union, i.e. categorically exempted by § 14(b)(4)(C), National Labor Relations Board, supra, 952 F.2d at 529, 532; but even if not deemed "relating to the process of collective bargaining", such data plainly is guidance, advice, counsel or training provided for management officials and no showing of any particularized need has been shown, except as to data concerning the questioning of employees. Indeed, the information the Union surmised was shown was not shown and any asserted relevancy was plainly not a showing of necessary as required when the information sought pertains to guidance, advice, counsel or training for management officials. National Labor Relations Board, 952 F.2d at 529.
Accordingly, having found that Respondent, contrary to § 14(b)(4), failed and refused to furnish data concerning the questioning of employees in violation of § § 16(a)(5), (8) and (1) of the Statute, it is recommended that the Authority adopt the following:
Pursuant to § 2423.29 of the Rules and Regulations, 5 C.F.R. § 2423.29, and § 18 of the Statute, 5 U.S.C. § 7118, the Authority hereby orders that the Department of Veterans Affairs, Finance Center, Austin, Texas, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the National Federation of Federal Employees, Local 1745, the exclusive representative of certain of its employees, those portions of the Report, entitled, "Management 'Control' Review, Commercial Accounting Operation, Austin Finance Center Variance Processing Analysis", concerning the questioning of employees, specifically, as follows: the second paragraph of page 2 of Exhibit 1, entitled "Deficiency" and the penultimate paragraph on page 10 of Exhibit 1, entitled "Deficiency".
(b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights under the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Furnish, upon request, the National Federation of Federal Employees, Local 1745, those portions of the
Report entitled, "Management 'Control' Review, Commercial Accounting Operation, Austin Finance Center Variance Processing Analysis" concerning the questioning of employees, specifically: the second paragraph of page 2 of Exhibit 1, entitled "Deficiency" and the penultimate paragraph on page 10 of Exhibit 1, entitled, "Deficiency."
(b) Post at its facilities at its Austin, Texas, Finance Center 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 Director of the Finance Center, or the person in charge of the Finance Center if his title is other than "Director", and shall be posted in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted, and shall be maintained for 60 consecutive days thereafter. Reasonable steps shall be taken to ensure that such notices are not altered, defaced, or covered by any other material.
(c) Pursuant to § 2423.30 of the Rules and Regulations, 5 C.F.R. § 2423.30, notify the Regional Director, Dallas Region, Federal Labor Relations Authority, Suite 926, 525 Griffin Street, Dallas, Texas 75202, in writing, within 30 days from the date of this Order as to what steps have been taken to comply herewith.
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: May 12, 1992
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 HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request of the National Federation of Federal Employees, Local 1745, the exclusive representative of certain of our employees, those portions of the Report entitled, "Management 'Control' Review, Commercial Accounting Operation, Austin Finance Center Variance Processing Analysis" (hereinafter referred to as the "Report"), concerning the questioning of employees.
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 National Federation of Federal Employees, Local 1745, upon request, with those portions of the Report concerning the questioning of employees.
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 any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Dallas Regional Office, whose address is: 525 Griffin Street, Suite 926, Dallas, Texas 75202, and whose telephone number is: (214) 767-0156.
1/ For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the statutory reference, e.g., Section 7114(b)(4) will be referred to, simply, as "§ 14(b)(4)".
2/ This proceeding concerns solely a request for data pursuant to § 14(b)(4) of the Statute. After examining the data in question in camera, I stated at the hearing that on the basis of my examination of the Report I found, at that point, only one page that I would order Respondent to produce; that, because that one page concerned the interview of employees, such information, in furtherance of the Union's broad representational duties, would assist the Union in determining whether the interviews were formal discussions (§ 14(a)(2)(A)). By no stretch of the imagination was the issue of whether interviews were, or were not, formal discussions litigated in any manner.
3/ Beginning earlier, in February 1991, Respondent had embarked on an entirely separate project called, "Quantum Leap", the primary objective of which was to modify the "front-end process" to get the mail into the CAPPS system faster, i.e., by getting the documents into the pay system faster, optimally, the day received (Tr. 141, 142, 147). This involves almost exclusively input voucher examiners (Tr. 140), although variance examiners occasionally input documents when there is a backlog (Tr. 147). This is work that occurs before the variance voucher examiner's work begins. Mr. Lopez's analysis was wholly unrelated to Quantum Leap, notwithstanding that Quantum Leap also sought to reduce lost discounts - by getting the documents into the payment system faster. Mr. Lopez's study was to go beyond what Quantum Leap addressed (Tr. 147).
4/ Ms. Wright subsequently resigned; moved away, and the arbitration of her grievance was cancelled (Tr. 51, 54, 56).
5/ Transmitted to the Authority herewith in the attached sealed envelope.
6/ Previously, Section 46(f) had provided,
"(f) To make public from time to time such portions of the information obtained by it hereunder, except trade secrets and names of customers, as it shall deem expedient in the public interest; . . . ." (15 U.S.C.A. § 46, 38 STAT. 721 (1914)).
7/ The only paragraph of the Commission's protective order referred to in Exxon Corp., supra, was paragraph nine which provided for advance notice prior to the Commission's release of confidential documents requested by a congressional committee or pursuant to the Freedom of Information Act [5 U.S.C. § 552, et seq.] (665 F.2d at 1275). Although not involved in Exxon and, therefore, not referred to therein, I am aware that the Commission may impose other limitations, for example: documents containing trade secrets shall be released only to outside litigation counsel and not to Respondent companies and/or their house counsels; or that a document to be made an exhibit which contains a trade secret, be accorded "in camera" treatment so that it is not part of the record open for public inspection; etc.
8/ It is no answer that Mr. Lopez testified that he talked only to about six employees; that he asked how they felt about the variance tolerance level; the definition of a vari-ance; quality of microfilm prints; etc., and that no written questionnaires were distributed to employees, which is the literal qualification of the MOU, for the reason that at the time of the request the Union was given no information concerning the nature of employee contacts. Because this case involves solely a request for information, whether Respondent had a right to gather information, Department of the Treasury, Internal Revenue Service, Washington, DC and Internal Revenue Service, Indianapolis, Indiana District Office, 31 FLRA 832 (1988), Internal Revenue Service (District, Region, National Units), 19 FLRA 353, 354, (1985), is not material to this proceeding.
9/ Three decisions; National Labor Relations Board, supra; Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 38 FLRA 965 (1990); and National Park Service, National Capital Region, United States Park Service and Police Association of the District of Columbia, 38 FLRA 1027 (1990), were consolidated for review.
10/ The Authority's following sentence, that:
"We conclude also that section 7114(b)(4)(C) of the Statute constitutes a narrow exception to an agency's duty to furnish data under section 7114(b)(4) of the Statute." (38 FLRA at 520),
and its conclusion, later in its decision, that,
". . . We further conclude 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." (38 FLRA at 523).
contradicts its previous statement which, I submit, was correct, namely that "section 7114(b)(4)(C) exempts from disclosure to the exclusive representative 'guidance, advice, counsel or training for management officials relating to' the collective bargaining process" as this is what the Statute provides. Its asserted justification of "the general rule of statutory construction . . . that a proviso is strictly construed" (38 FLRA at 520) is highly specious. First, the Authority concluded that the term "collective bargaining" has the same meaning in subsections (B) and (C) and it uses "collective bargaining process" to mean the same in subsections (B) and (C). Second, if the limitations of subsections (C) constitutes a "proviso" then the limitations of subsection (B) also constitutes a "proviso" and each must be "strictly construed". Third, the legislative history, set forth in full in my decision in National Park Service, supra, 38 FLRA at 1052, is wholly contrary to the proposition for which it is cited. Fourth, for reasons set forth in National Park Service, 38 FLRA at 1051-1053, and by Chief Judge Fenton in National Weather Service, supra, 30 FLRA at 158, I would adhere to the conclusion that "related to collective bargaining" in subsection (C) is inherently broader than "subjects within the scope of collective bargaining" in subsection (B), i.e., "within the scope" would be like the normal definition of a Brief as, ". . . the essential facts . . . a statement of the questions of law involved. . . ." BLACK's LAW DICTIONARY 251 (3d/ed. 1933), whereas, "related to" is like a "Brandeis Brief" - "one setting out the sociological as well as the legal aspects of an issue." Bruce Allen Murphy, THE BRANDEIS/FRANKFURTER CONNECTION 21 (1982). Fifth, necessarily, since the Authority has found that "collective bargaining process" applies to both subsection (B) and subsection (C) and that "collective bargaining" has the same meaning in subsection (C) and subsection (B), data within the reach of "collective bargaining process" in subsection (B) has precisely the same reach in subsection (C); however "guidance, advice, or counsel to management officials" is exempt from disclosure, but only information constituting guidance, advice, or counsel, cf., 30 FLRA at 142, 38 FLRA at 1053.
Judge Edwards in his decision in National Labor Relations Board, supra, stated,
"We uphold the FLRA's construction of § 7114(b)(4)(C)." (952 F.2d at 525).
However, Judge Edwards stated that,
". . . management often has a legitimate interest in preserving for itself alone, information on 'guidance,' 'advice,' 'counsel' or 'training' provided for management officials." (952 F.2d at 532),
and concluded that
". . . we hold that 'guidance,' 'advice,' 'counsel' or 'training' for management officials . . . should be released upon union request only in those circumstances when the union has a particularized need for the information ." (952 F.2d at 932).
In a subsequent case, Department of the Air Force,Scott Air Force Base v. Federal Labor Relations Authority,
- F.2d -, No. 91-1042 (D.C. Cir. February 28, 1992), "particularized need" was extended to data which was not "guidance, advice, counsel or training."