48:1151(127)CA - - National Park Service, National Capital Region, U.S. Park Police and Police Association of DC - - 1993 FLRAdec CA - - v48 p1151



[ v48 p1151 ]
48:1151(127)CA
The decision of the Authority follows:


48 FLRA No. 127

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL PARK SERVICE

NATIONAL CAPITAL REGION

UNITED STATES PARK POLICE

(Respondent)

and

POLICE ASSOCIATION OF THE

DISTRICT OF COLUMBIA

(Charging Party/Union)

3-CA-60168

3-CA-60182

3-CA-60183

3-CA-60288

44 FLRA 1537 (1992)

38 FLRA 1027 (1990)

32 FLRA 308 (1988)

26 FLRA 441 (1987)

_____

DECISION AND ORDER ON REMAND

December 27, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.(1)

I. Statement of the Case

This consolidated 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 Respondent filed an opposition to the General Counsel's exceptions. The consolidated 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.

In National Labor Relations Board v. FLRA, 952 F.2d 523, 534 (D.C. Cir. 1992) (NLRB v. FLRA), the court remanded to us the complaint in this case and, in 44 FLRA 1537, we remanded the complaint to the Judge for further proceedings. On remand, the Judge found that the Respondent violated the Statute by failing to furnish the Union with certain information but did not violate the Statute by failing to furnish other information. It is the Judge's decision on remand to which the exceptions now before us have been filed.

Pursuant to section 2423.29 of our Rules and Regulations, we have reviewed the procedural rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order for the reasons discussed below.

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 two unit employees who were disciplined and two unit employees who were denied sick leave, the Union requested information under section 7114(b)(4) of the Statute.(2) As relevant here, the Respondent refused to furnish portions of the requested documents containing recommendations, concurrences, or opinions of supervisors or managers relating to the disciplinary actions and sick leave requests.(3)

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 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 court held that section 7106 does not bar the disclosure of information under section 7114(b)(4) of the Statute. The court vacated the decision in National Park Service I, and remanded the case to the Authority. The Authority remanded the case to the 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). Decision and Order on Remand, 32 FLRA 308 (1988).

On remand, the Judge concluded that the requested information was exempt from disclosure because it 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 information.

In National Park Service II, the Authority found that the requested information was not exempt from disclosure under section 7114(b)(4)(C) of the Statute. The Authority noted its previous holding in National Labor Relations Board, 38 FLRA 506 (1990) (NLRB), that section 7114(b)(4)(C) exempts from disclosure only information "relating specifically to the collective bargaining process[.]" National Park Service II, 38 FLRA at 1035 (quoting NLRB, 38 FLRA at 522). The Authority concluded that:

[T]he recommendations . . . were not made in a context where the Respondent and the Union were engaged in actual bargaining. Moreover, the disputed documents were not guidance, advice, or counsel to management concerning the processing of the four grievances. Rather, the recommendations . . . were made prior to the filing of the grievances, when management was considering whether to take disciplinary action against two bargaining unit employees and whether to grant or deny the sick leave requests of two other . . . employees.

National Park Service II, 38 FLRA at 1036.

The Authority also found that the requested documents were "necessary for the Union to process the employees' grievances." Id. at 1037. The Authority stated that the information was necessary to:

(1) fully understand the basis underlying the Respondent's decision[s] on the matter[s]; (2) realistically assess and evaluate the merits of the employee[s'] grievance[s]; and (3) determine the most appropriate course of action to take in the matter.

Id. Accordingly, 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.

In NLRB v. FLRA, the court agreed with the Authority's holding that the requested information was not exempt from disclosure under section 7114(b)(4)(C) of the Statute. The court stated, in this regard, that the Authority's distinction between "information about the subject of collective bargaining versus information about the bargaining itself[]" was "wholly reasonable . . . ." 952 F.2d at 530-31.

Nevertheless, the court remanded the complaint to the Authority to determine whether the requested information was necessary, within the meaning of section 7114(b)(4)(B) of the Statute. The court held, at the outset, that the Statute "entitles [a] union to 'necessary,' not to 'relevant' information[.]" Id. Moreover, the court held that "[a] statute that requires 'necessity' implicitly recognizes countervailing interests[.]" Id. According to the court, "the requisite strength of the union's 'need' will depend on the intensity of countervailing interests." Id.

The court noted that, in some cases, "relevancy and necessity may . . . merge indistinguishably[.]" Id. (citation omitted). The court noted further that, in some cases, there may be "no anti-disclosure interest." Id. However, in cases involving the disclosure of guidance, advice, counsel, or training for management officials, the court held that section 7114(b)(4)(C) of the Statute demonstrates that "there is some countervailing anti-disclosure interest . . . ." Id. The court stated that management has "a legitimate interest in preserving for itself, alone" such information and that, although the interest "is most weighty with respect to matters relating to the process of collective bargaining . . . the interest also exists . . . in connection with all such information pertaining to subjects within the scope of collective bargaining." Id. at 532 (citation omitted). The court held that:

"[G]uidance," "advice," "counsel" or "training" for management officials that is claimed to be necessary for the "full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining" should be released upon union request only in those circumstances when the union has a particularized need for the information.

Id.

The court set forth two examples of instances where a union could establish a particularized need for management guidance, advice, counsel, or training. In particular, the court held that a union may establish a particularized need for information "where the union has a grievable complaint covering the information[]" and/or where "the disputed document creates a grievable action." Id. at 532, 533 (emphasis omitted). With respect to the former example, the court stated that, if a collective bargaining agreement contained a procedure requiring an agency to create documents containing intramanagement recommendations, then "the recommendations should normally be disclosed to the union, assuming the union could grieve the agency's failure to follow the procedure." Id. at 533. As for the latter example, the court hypothesized a situation where a lower-level supervisor confirmed in writing a counseling session regarding an employee's performance and an applicable collective bargaining agreement provided that such counseling was used to determine subsequent action by higher-level supervisors. The court stated that, in such a situation, a union would have a "strong and valid claim" to disclosure of the confirming memorandum under section 7114(b)(4) of the Statute because the union would need such memorandum "to determine whether the employee must be protected against the accumulation of negative evaluations in his or her personnel file . . . ." Id. However, the court held that documents "that are strictly 'intramanagement' normally will not be discoverable under [section] 7114(b)(4)(B)." Id. at n.6.(4)

The court concluded that the Authority had "required disclosure without explaining the 'necessity' of the requested information." Id. at 534. Accordingly, the court remanded the case to the Authority "for adjudication under the particularized-need standard." Id. As noted above, in 44 FLRA 1537, we remanded the complaint to the Judge.

III. Judge's Decision

A. Case Nos. 3-CA-60168 and 3-CA-60182

The Judge concluded that the Union had not demonstrated a "[g]eneral particularized need" for the requested documents. Judge's Decision at 12 (emphasis omitted). According to the Judge, testimony at the ULP hearing established "that the recommendations might be helpful, desirable, [and] beneficial, but not essential or critical." Id. The Judge stated, in this regard, that "a grievance goes to action taken, whether a denial of sick leave or imposition of discipline," and recommendations made preliminary to such action are not necessary for unions to process grievances. Id. at 13.

However, the Judge also concluded, based on NLRB v. FLRA, that the requested information must be disclosed under section 7114(b)(4) of the Statute if the Union demonstrated "a grievable right to the requested pre-decision . . . ." Id. at 16. In this connection, the Judge found that the Union had a "grievable right" to the requested disciplinary action information. Id. In so finding, the Judge relied on Article XVI of the parties' collective bargaining agreement, entitled "Complaints Against Officers," which provides, in pertinent part:

Section 1. To insure the integrity of the U.S. Park Police, the Employer and the Union agree that prompt and thorough investigation must be made of complaints of alleged or suspected misconduct.

. . . .

Section 5. Retention of Complaints.

A. Case files classed as "Sustained" will be retained in the Office of Internal Affairs . . . and in the work file folder . . . . Sustained complaint files leading to recommendation for disciplinary or adverse action . . . will also be maintained . . . . Documentation will be maintained . . . to reflect whether any person outside the Office of Internal Affairs . . . or the . . . Division of Personnel reviewed the file.

Such documentation will be available to the Officer and/or his/her representative upon request.

B. Case files classed as "Unfounded", "Exonerated", "Not sustained", and "Other" will be retained for a 5 year period . . . . Said file should be open for inspection by the Officer(s) named in the complaint or his/her authorized representative. Documentation will be maintained in the file to reflect whether any person outside the Office of Internal Affairs reviewed said file. Such documentation will be available to the Officer and/or his/her representative upon request.

Section 6. Release of Complaint Files.

A. To Officer/Representative. An Officer and/or Union representative shall, upon request, be permitted to review and receive at no cost one copy of the records and documentation pertaining to the complaint after development of a disposition and subject to regulations on release of information. All such requests shall not unreasonably be withheld. . . .

G.C. Exh. 2 at 33-34.

According to the Judge, Article XVI, Section 6, provides unit employees and the Union "an absolute and unqualified right" to review all complaint files. Judge's Decision at 15. The Judge noted that Section 6 references regulations governing the release of information. However, according to the Judge, the Respondent did not assert or refer to any regulation which would affect disclosure of the disciplinary complaint files in this case. The Judge concluded that "the contract creates a grievable right to the requested [disciplinary] . . . recommendations[.]" Id. at 16. Therefore, the Judge found in Case Nos. 3-CA-60168 and 3-CA-60182 that the Respondent violated the Statute by failing to furnish the Union the recommendations.

B. Case Nos. 3-CA-60183 and 3-CA-60288

With regard to the requested recommendations regarding sick leave, the Judge rejected, as contrary to the record, the Union's assertion that the Respondent's "'procedures require lower-level supervisors to provide their recommendations.'" Id. at 19 (citation omitted). In particular, the Judge cited testimony of the Respondent's Chief of Employee and Labor Relations that "she knew '. . . of no requirement for the supervisors to make [such] a recommendation . . . .'" Id. at 18 (citation omitted). The Judge also cited the parties' stipulation that "in making administrative (sick) leave decisions the approving official's decision will be made on a preponderance of medical evidence[.]" Id. at 23.(5) The Judge concluded that because "the record fail[ed] to show any grievable right to information concerning denial of . . . [l]eave, no particularized need, on the basis of contractual obligation or right, was shown" for the recommendations. Id. at 22. Accordingly, the Judge recommended that the complaints in Case Nos. 3-CA-60183 and 3-CA-60288 be dismissed.

IV. Positions of the Parties

A. General Counsel's Exceptions

The General Counsel excepts to the Judge's conclusion that the record does not establish a particularized need for the requested sick leave recommendations. In this regard, the General Counsel relies on Paragraph 17 of the parties' stipulation. According to the General Counsel, "the stipulated fact that Respondent's lower-level supervisors made these recommendations with respect to administrative (sick) leave requests is sufficient for a finding that not only was the process itself mandated, but that the Union had a grievable stake in the process." G.C.'s Exceptions at 14. In addition, the General Counsel argues that the Respondent has not established any anti-disclosure interests in the requested information.

B. Respondent's Exceptions

The Respondent excepts to the Judge's conclusion that the Union has a right under Article XVI, Section 6, of the parties' agreement to the requested disciplinary recommendations. According to the Respondent, the phrase "'records and documentation pertaining to the complaint'" in Section 6 refers only to factual information and not to supervisory recommendations. Respondent's Exceptions at 9. The Respondent argues that Section 6 is "broad" and that, because it does not contain a "specific reference to the predecisional recommendations, it is inconsistent with the concept of 'particularized need.'" Id. at 8.

The Respondent also argues that, as the release of information under Section 6 is, by its terms, "'subject to regulations on the release of information[,]'" it is appropriate for the Authority to take "official notice of" applicable regulations of the Department of the Interior governing release of information under the Freedom of Information and Privacy Acts. Id. at 12, 13. The Respondent acknowledges that it did not cite these regulations to the Judge. However, the Respondent asserts that it did not do so because it was "apparent that . . . Section 6 . . . referred only to the factual investigative report documenting the complaint, which did not include the predecisional recommendations." Id. at n.1.

C. Respondent's Opposition

The Respondent argues that the requested recommendations are not necessary for the Union to process grievances on behalf of the four affected employees because the grievances "concerned only the final decision taken by the agency." Respondent's Opposition at 5. The Respondent also argues that the record "presents ample evidence of Respondent's anti-disclosure interest in preserving the confidentiality of supervisory recommendations[.]" Id. at 16.

V. Analysis and Conclusions

We adopt the court's decision in NLRB v. FLRA and conclude that an agency is not obligated to provide a union with requested documents containing advice, guidance, counsel, or training materials provided for management officials under section 7114(b)(4) of the Statute unless the union demonstrates a particularized need, as discussed by the court, for such information. Previous inconsistent Authority decisions will no longer be followed.

A. Disciplinary Recommendations

Section 7114(b)(4)(B) of the Statute requires an agency to furnish a union, upon request, with information which, as relevant here, is "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining[.]"(6) In NLRB v. FLRA, the court held that the Respondent could not be found in violation of the Statute for failing to furnish the Union with the requested recommendations unless the Union demonstrated a particularized need for the information.(7) That is, the court held that, insofar as requested information encompasses advice, guidance, counsel, or training provided for management officials, a conclusion that such information is necessary under section 7114(b)(4) requires a finding that the requesting union has shown a particularized need for it.(8) Although the court offered two examples of ways in which the Union could demonstrate such particularized need, the court also stated that documents that are "strictly 'intramanagement' normally will not be discoverable under [section] 7114(b)(4)(B)." 952 F.2d at 533 n.6.

We conclude, in agreement with the Judge, that the Union demonstrated a particularized need for the requested disciplinary recommendations. We note that, pursuant to procedures instituted by the Chief of the U.S. Park Police, supervisors are required to make such recommendations. See Judge's Decision at 3-4. It is not clear to us that, as stated by the court in NLRB v. FLRA, "the union could grieve the agency's failure to follow the procedure."(9) 952 F.2d at 533. However, we conclude that Article XVI, Section 6, of the parties' agreement requires the Respondent to disclose the recommendations to the Union.

In this regard, it is undisputed that the requested disciplinary recommendations were placed in affected employees' complaint files. Nothing in the record before us provides a reasonable basis on which to conclude that such recommendations do not constitute either "records" or "documentation," within the meaning of Article XVI, Section 6, which, as set forth previously, provides that affected employees and their Union representatives may "review and receive . . . one copy of the records and documentation pertaining to the complaint . . . ." G.C. Exh. 2 at 34. We reject the Respondent's assertion that "[d]isciplinary recommendations could not possibly constitute 'documentation pertaining to the complaint' since they are given after the complaint is documented . . . and assigned a disposition, such as 'sustained.'" Respondent's Exceptions at 11 (emphasis omitted). Whether they are developed before or after a complaint is documented, it is clear that recommendations regarding disciplinary action pertain to the complaint and, in this case, the disputed recommendations were, in fact, placed in the affected employees' complaint files.(10) Moreover, the Judge clearly interpreted Article XVI, Section 6, as requiring the disclosure of the disputed recommendations and we have no basis on which to reject his interpretation.(11)

Although, as noted previously, the court in NLRB v. FLRA held that documents that are "strictly 'intramangement' normally will not be discoverable" under section 7114(b)(4) of the Statute, the court held also that such documents should "normally be disclosed" in situations where a union could grieve an agency's failure to follow agreed-upon procedures requiring such recommendations because the union "would have a particularized need to know whether the agency has complied with the collective bargaining agreement." 952 F.2d at 533 (footnote omitted). We conclude that, in Article XVI, Section 6, the Respondent agreed to provide the Union, as representative of affected employees, with copies of documents in those employees' complaint files. Thus, although that contractual provision may not govern the creation of documents in complaint files, it clearly constitutes a negotiated procedure applicable to maintenance and disclosure of them. There is no contention that the Union could not grieve an alleged violation of Article XVI, Section 6. As such, the Union has, in our view, a particularized need, under NLRB v. FLRA, for such documents, including portions containing supervisory recommendations.

For the foregoing reasons, we find that the Respondent was required by section 7114(b)(4) to supply the requested information to the Union and that its failure to do so violated section 7116(a)(1), (5), and (8) of the Statute. We will direct the Respondent to cease and desist from its violation of the Statute and to supply the requested information to the Union.

B. Sick Leave Recommendations

The General Counsel's claim of particularized need for the requested sick leave recommendations rests solely on the parties' stipulation as to the process by which requests for sick leave are handled.(12) According to the General Counsel, "the stipulated fact that Respondent's lower-level supervisors made these recommendations . . . is sufficient for a finding that not only was the process itself mandated, but that the Union had a grievable stake in the process." G.C.'s Exceptions at 14.

We disagree that the parties' stipulation establishes that the Union had a grievable right to the process which resulted in development of the requested sick leave recommendations. The stipulation provides only that the management official responsible for approving requests for sick leave will be supplied with, among other things, "lower level management opinions and/or recommendations regarding the appropriateness of the request for administrative leave." National Park Service II, 38 FLRA at 1049. The stipulation does not, in our view, support a conclusion that the parties, either explicitly or implicitly, have agreed to a requirement that such recommendations be developed. Moreover, there is no assertion or evidence that the Union has any other collectively-bargained or otherwise grievable interest in the process by which such recommendations are developed. Finally, unlike the situation regarding disciplinary recommendations, there is no basis in the record on which to conclude that the Respondent otherwise has agreed to provide the Union with such recommendations.

Based on the record, we conclude that the General Counsel has not established that the Union "has a grievable complaint covering" the requested sick leave recommendations. NLRB v. FLRA, 952 F.2d at 532. In this connection, "where the union has no grievable complaint covering information on 'guidance,' 'advice,' 'counsel' or 'training,' [section] 7114(b)(4)(B) normally will not require disclosure." Id. No other basis on which to find that the Union has demonstrated a particularized need for the requested leave recommendations is asserted.(13) As such, we conclude that the requested recommendations are not necessary, within the meaning of section 7114(b)(4) of the Statute and that the Respondent's failure to furnish such recommendations to the Union did not violate the Statute. Therefore, in agreement with the Judge, we will dismiss the complaints in Case Nos. 3-CA-60183 and 3-CA-60288.

VI. Remedy

All parties acknowledge that the grievances filed over the disciplinary actions for which the Union requested information in Case Nos. 3-CA-60182 and 3-CA-60168 have long been resolved. Moreover, no exceptions were filed to the Judge's recommended remedy, which requires the Respondent to cease and desist from its unlawful conduct and to post an appropriate notice but does not require disclosure of the requested information. Accordingly, we adopt the Judge's recommended remedy and will not require disclosure of the requested disciplinary recommendations.

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 National Park Service, National Capital Region, United States Park Police, shall:

1. Cease and desist from:

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

        (b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

        (a) Post at its facilities copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Regional Director, National Capital Region, and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to their respective employees are customarily posted. Reasonable steps shall be taken to ensure that such notices are not altered, defaced, or covered by any other material.

        (b) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region III, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

The complaints in Case Nos. 3-CA-60183 and 3-CA-60288 are dismissed.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail and refuse to furnish the Police Association of the District of Columbia, the exclusive representative of our employees, with requested information concerning disciplinary actions taken against bargaining unit employees, including the recommendations, concurrences, and opinions of the supervisors and managers.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.

______________________________
(Activity)

Dated:________________ By:______________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Washington Regional Office, Federal Labor Relations Authority, whose address is: 1255 22nd Street, N.W. 4th Floor, Washington, D.C. 20037 and whose telephone number is: (202) 653-8500.

Opinion of Member Talkin, Concurring in Part and Dissenting in Part

Although I agree with my colleagues as to the disposition of this case under National Labor Relations Board v. FLRA, 952 F.2d 523 (D.C. Cir. 1992) (NLRB v. FLRA), I would apply NLRB v. FLRA as the law of the case only.

Clearly, as the court in NLRB v. FLRA observed, disclosure under section 7114(b)(4) of the Statute entitles a union to necessary, not merely relevant, information. I also agree with the court that "a 'need,' by definition, is an interest of particular strength and urgency." 952 F.2d at 531. Thus, a union must demonstrate its need for requested information with some particularity to require disclosure under the Statute. Nonetheless, in my view, neither the Statute nor logic requires that a determination of necessity must "implicitly recognize[]" or take into account in all cases the countervailing interests of the agency or other parties not otherwise preserved by the express language of section 7114(b)(4). Id. Acknowledging, as I must, that the confidential nature of some information militates against disclosure in the form that it is requested, see, for example, Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979), in my view the plain language of the Statute mandates that, in assessing necessity, our primary focus must be on the uses to which the requesting union would put the information.

As I read the Statute, Congress intended that agencies should provide to unions all requested information not otherwise prohibited by law if that information satisfies the express requirements set forth in section 7114(b)(4)(A), (B), and (C). Subsection (C) permits an agency to withhold information that "constitute[s] guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining[.]" Under the rationale of NLRB v. FLRA, in addition to the protections for managerial guidance, advice, counsel, or training concerning collective bargaining expressly provided in subsection (C), Congress also placed implicit protections for all other managerial documents within its definition of "necessary" in subsection (B). I see no structural or logical mandate for such a reading. Instead, I would apply the acknowledged rule of statutory construction that if a statute contains an express exception, "it comprises the only limitation on the operation of the statute and no other exceptions will be implied." Norman J. Singer, Sutherland Statutory Construction § 47.11 (5th Ed. 1992). Stated otherwise, "where a general provision in a statute has certain limited exceptions, all doubts should be resolved in favor of the general provision rather than the exceptions." Id. See, for example, Israel-British Bank (London) Ltd. v. FDIC, 536 F.2d 509, 512-13 (2d Cir.), cert. denied, 429 U.S. 978 (1976).

I find support for my view in the following statement by Rep. Ford shortly after enactment of the Statute:

Section 7114(b)(4) requires that the agency provide certain information not otherwise prohibited by law relating to negotiations. There is no exemption from this requirement for information, whether or not deemed "confidential" by the agency unless that information constitutes guidance, advice, counsel, or training, each specifically related to collective bargaining.

124 Cong. Rec. H 13608 (daily ed. Oct. 14, 1978). Although I recognize that post-enactment statements of legislators do not constitute dispositive evidence of Congressional intent, I find in this statement a strong indication that the framers of the Statute sought to limit the role of intramanagement confidentiality in federal sector labor relations to that required by section 7114(b)(4)(C) and other statutes, such as the Privacy Act, that may expressly govern the issue. It follows that the decision in NLRB v. FLRA improperly engrafts an agency's confidentiality interests onto the necessity inquiry required under section 7114(b)(4)(B). This represents a radical departure from prior case law recognizing a federal agency's broad duty to disclose information to a union, and one that I believe will seriously jeopardize the effectiveness of collective bargaining in the federal sector.

Moreover, insofar as an agency raises legitimate confidentiality interests that are not addressed by subsection (C) or other statutes, the Authority can consider those interests, as it has in the past, in determining the extent of disclosure that is required, rather than by allowing the existence of such interests to negate the right to disclosure altogether. See, for example, U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 37 FLRA 1310, 1324-25 (1990) (Authority ordered agency to supply requested information in a sanitized form); Bureau of Alcohol, Tobacco and Firearms, National Office, Washington, D.C., 18 FLRA 611, 614 n.7 (1985) (BATF) (Authority found that agency had properly deleted certain data that was not necessary within the meaning of section 7114(b)(4)). If the inquiry is made at that point, the Authority will also be able to assess whether the agency has sought from the union an accommodation that will permit disclosure, where appropriate, without unduly harming any legitimate interests raised by the agency. See, for example, BATF; Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, Region X, Seattle, Washington, 39 FLRA 298, 310-11 (1991) (Authority found that agency violated the Statute by refusing to disclose information, which union would have accepted in sanitized format, because the agency never offered to produce it in any form).

In my view, a scheme that stresses the primacy of a union's representational needs for information, while requiring the parties to reach an accommodation as to the form of disclosure when an agency raises a legitimate confidentiality interest, comports with the stated purpose of the Statute that collective bargaining in its fullest sense "contributes to the effective conduct of public business[.]" 5 U.S.C. § 7101(a)(1)(B). See, for example, American Federation of Government Employees, AFL-CIO, Local 1345 v. FLRA, 793 F.2d 1360, 1364 (D.C. Cir. 1986) ("The Union cannot fulfill its obligation to fully represent all employees in the unit if it lacks information necessary to assess its representational responsibilities."). In government, as elsewhere, good relationships depend upon the sharing, where possible, of information required by each party to perform its role effectively. Thus, a policy that encourages the disclosure of information also strengthens the cooperative partnerships desired among federal unions and agencies. See Executive Order No. 12871, 58 Fed. Reg. 52201 (1993).

In rejecting the process designed by the court and adopted by my colleagues for determining when a union demonstrates a sufficient need for requested information, I recognize that the Authority has often applied its previous standard for determining necessity under section 7114(b)(4)(B) too broadly and that a more precise definition of that term may be needed. Therefore, I would construe the term "necessary" in section 7114(b)(4)(B) to apply to requested information that a reasonable person would find to be material, in addition to relevant and useful, to the union's stated purpose and the conduct of its representational responsibilities.

Under my formulation, requested information would be material if one could discern either from the request itself or from the context in which it was made that, when viewed objectively, the information could influence or affect the union's choice or pursuit of a course of action in the context of fulfilling its representational responsibilities under the Statute. In my view, this standard goes well beyond a finding of mere relevance, which requires only that the requested information be germane, or pertinent, to the function for which it is sought. It would not, however, detrimentally affect a union's exercise of its representational responsibilities and the effectiveness of collective bargaining in the federal sector as would, in my opinion, the approach adopted today by my colleagues.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Member Talkin's separate opinion, concurring in part and dissenting in part, is set forth at the end of this decision.

2. The Respondent's denial of information related to the disciplinary actions resulted in issuance of the complaints in Case Nos. 3-CA-60168 and 3-CA-60182. The denial of information related to sick leave resulted in the complaints in Case Nos. 3-CA-60183 and 3-CA-60288.

3. The Judge previously found that the Union had been provided with the information encompassed by the complaint in Case No. 3-CA-60288 "in its entirety . . . ." National Park Service, National Capital Region, United States Park Service, 38 FLRA 1027, 1048 n.6 (1990) (National Park Service II). In addition, the Respondent asserts, with regard to 3-CA-60288, that "the entire record, including the [requested] recommendation . . . was inadvertently furnished to the Union." Opposition at 1-2. Accordingly, the Authority issued an order requiring the General Counsel to show cause why this complaint should not be dismissed as moot. In response thereto, the General Counsel notes that the Judge in the decision now before us does not reference his previous finding and argues that the Respondent's assertion is inconsistent both with the parties' stipulations in this case and with its previous arguments. We agree and will not dismiss the complaint in Case No. 3-CA-60288 as moot.

4. The court rejected the argument that section 7132 of the Statute, which provides that no subpoena may be issued requiring the disclosure of intramanagement guidance, advice, counsel, or training, requires a rule exempting from disclosure under section 7114(b)(4) all such information. According to the court, where an employee "has a right to a particular pre-decision," that document "is no longer 'intramanagement.'" 952 F.2d at 533 n.6. The court also stated that documents creating grievable actions, such as lower-level supervisory evaluations, would not "be strictly 'intramanagement' under [section] 7132." Id. at n.7.

5. Paragraph 8 of the parties' stipulation provides:

7. The following is a summary of the process which the U.S. Park Police follow [sic] when making administrative leave (sick) decisions:

(a) An officer claims that he/she was injured or taken ill in the line of duty. The officer completes the required forms, advises a supervisor of the illness or injury, and seeks medical attention . . . The Medical Services Officer provides the Commander, Administrative Branch, Services Division, USPP (the approving official) with all the medical reports relating to the claim and the affected officer's claim request, as well as lower level management opinions and/or recommendations regarding the appropriateness of the request for administrative leave.

(b) The approving official makes a decision as to whether the claim will be approved based on a preponderance of the medical evidence and notifies the officer in writing of the decision. If the officer disagrees with the approving official's decision, he/she may appeal the decision through the negotiated grievance procedure . . . .

National Park Service II, 38 FLRA at 1049.

6. As there is no dispute that the requested information is normally maintained and reasonably available, we will not address these matters further.

7. We note the Judge's disagreement with the Authority's and the court's conclusions that the requested recommendations are not exempt from disclosure under section 7114(b)(4)(C) of the Statute. However, we decline the Judge's invitation that we reconsider our holding on this point.

8. The Judge stated that "'particularized need'" is a "need greater than merely 'necessary' within the meaning of [section] 7114(b)(4)(B)." Judge's Decision at 12. Insofar as this statement indicates that a finding of particularized need differs from a finding of necessity under the Statute, we disagree. In our view, the court in NLRB v. FLRA held that, with respect to advice, guidance, counsel, and training provided for management officials, a finding of particularized need constitutes a finding of necessity under the Statute. In this vein, we also reject the Judge's conclusion that, although the Union did not demonstrate a "[g]eneral particularized need" for the requested information, Judge's Decision at 12, the Union did show "particularized need" based on the parties' agreement. Id. at 16.

9. The General Counsel argues that the memorandum of the Chief of the Park Police, which sets forth the requirement that supervisors make recommendations in disciplinary cases and which references an internal regulation of the Respondent (General Order 32.04), establishes a grievable policy requiring supervisory recommendations. In particular, the General Counsel argues that "supervisory recommendations are procedurally mandated by Respondent's General Order 32.04, Section IV, A and B." G.C. Exceptions at 10. According to the General Counsel, the Respondent's compliance with this policy is grievable under Article VII, Section 1(C) of the parties' collective bargaining agreement, which includes within the scope of the negotiated grievance procedure "'any claimed violation, misinterpretation, or misapplication of any law, rule or regulation affecting conditions of employment.'" Id. (citation omitted). The Respondent disagrees that the memorandum and the General Order require the development of supervisory recommendations and/or that failure to develop such recommendations would be grievable. We note that, although the disputed memorandum requires the creation of supervisory recommendations, neither the 1979 nor the 1991 version of the General Order refers to such recommendations. See Attachment to Respondent's Opposition. Further, the Judge found that this case "does not involve compliance with any agreed[-]upon procedure" and that the disputed memorandum did not "create[] or g[i]ve the Union any right to disclosure of supervisory recommendations." Judge's Decision at 14. In view of our conclusion regarding Article XVI, Section 6, of the parties' agreement, we find it unnecessary to determine whether the disputed memorandum of the Chief of the Park Police establishes a grievable policy requiring supervisory recommendations.

10. We also reject the Respondent's request that we take official notice of certain of its regulations, which it did not cite or address in any previous proceedings, on the grounds that it failed to do so because "it was apparent that Article XVI, Section 6, by its terms referred only to the factual investigative report documenting the complaint, which did not include the predecisional recommendations." Respondent's Exceptions at 12 n.1. We note that, under section 2429.5 of our Rules and Regulations, 5 C.F.R. § 2429.5, the Authority will not consider evidence and/or issues that were not presented in proceedings before the Judge. Moreover, as the Respondent does not otherwise argue that disclosure of the requested information is prohibited by law, we will not address that aspect of section 7114(b)(4) of the Statute further.

11. We note that, in Internal Revenue Service, Washington, D.C., 47 FLRA 1091 (1993) (IRS), we set forth our approach to resolving defenses, based on a collective bargaining agreement, to alleged interference with rights under the Statute. We stated that, in such cases, "the Authority, including its administrative law judges, will determine the meaning of the parties' . . . agreement and will resolve the unfair labor practice complaint accordingly." Id. at 1103. We also stated that, in resolving exceptions to a judge's interpretation of a contractual provision, we will determine whether that interpretation "is supported by the record and by the standards and principles of interpreting collective bargaining agreements applied by arbitrators and the Federal courts." Id. at 1111. Here, the Respondent does not now defend, and has previously not defended, its failure to provide the requested information on the basis of Article XVI, Section 6. Moreover, even if IRS applies, the Judge interpreted Article XVI, Section 6, as providing the Union "an absolute and unqualified right" to review and receive a copy of the disputed recommendations. Judge's Decision at 15. As stated above, and consistent with IRS, we find no basis in the record of this case on which to reject the Judge's interpretation of the provision.

12. See note 4 above.

13. We note that the court in NLRB v. FLRA set forth examples of particularized need. As no other basis on which to find that the Union demonstrated a particularized need for the requested sick leave recommendations is argued in this case, we need not address what bases other than the two examples offered by the court might support such finding.


UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C.  20424

 NATIONAL PARK SERVICE         .
NATIONAL CAPITAL REGION         .
UNITED STATES PARK POLICE
[1](Tr. 5-6).      .
Respondent                       .

     and                      .                                                                     Case Nos. 3-CA-60168
  
                                                                                                       .             3-CA-60182
                                                                                                                        3-CA-60183
                                                                                                                       
3-CA-60288   

POLICE ASSOCIATION OF
THE DISTRICT OF COLUMBIA      .             
Charging Party     .

[26 FLRA 441 (1987) (Stipulation)
32 FLRA 308 (1990)  (Decision on  Remand in
842 F.2d 483(D.C. Cir. 1988))

                                                  38 FLRA 1027 (1990)
                                            
     44 FLRA No. 117, 44 FLRA 1537(1992)(Decision on
         
                                        Remand in 952 F.2d 523
                             
                    (D.C. Cir. 1992))]

Beatrice G. Chester, Esquire
    
    For the Respondent

Joseph V. Kaplan, Esquire
    
    For the Charging Party

Christopher M. Feldenzer, Esquire
   
    For the General Counsel

Before:  WILLIAM B. DEVANEY
    
    Administrative Law Judge

 

DECISION

 Statement of the Case

    This is a much litigated information case notable for its longevity if not for its significance.  Following the Court of Appeal's decision in the consolidated case involving Respondent[2], the National Labor Relations Board[3], and Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base[4]44 FLRA 1545 (1992).  Following remand, this case also was settled.  , National Labor Relations Board v. FLRA, 952 F.2d 523 (D.C. Cir. 1992) (hereinafter, NLRB v. FLRA), the Authority, on May 29, 1992, issued its Decision and Order on Remand; noted that, 

". . . the court concluded that 'an agency need not disclose information on "guidance", "advice," "counsel" or "training" for management officials under § 7114(b)(4)(B) unless the union has a "particularized need" for such information.' . . ." [952 F.2d at 534]; 

and concluded that,    

   "The record before us is not sufficient to make the determinations required by the court's remand.  Accordingly, we will remand the case to the Judge for further processing."  National Park  Service, National Capital Region; United States Park Service, 44 FLRA 1537, 1539 (1992).

     By Order dated June 4, 1992, this matter was scheduled for hearing in accordance with the remand, on June 26, 1992, pursuant to which a hearing was duly held on June 26, 1992, in Washington, D.C., before the undersigned.  The sole issue on remand was, and is, the Union's "particularized need", if any, for the data constituting "guidance, advice, counsel or training".  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 part waived.  At the conclusion of the hearing, July 26, 1992, was fixed as the date for mailing post-hearing briefs, which time was subsequently extended, on timely motion of Respondent, to which the other parties did not object, for good cause shown, to August 10, 1992.  Respondent, Charging Party and General Counsel each filed a brief on August 10, 1992, and Charging Party on August 11, 1992, filed a corrected page 5 for substitution in its brief.  As part of its Brief, Charging Party moved for recusal of the undersigned; and Respondent filed an Opposition To Motion For Recusal, received on August 17, 1992.  For reasons well stated in Respondent's Opposition To Motion For Recusal, the motion is denied.

      On the basis of the entire record I make the following findings and conclusions: 

Findings 

     1.  The Collective Bargaining Agreement, in effect at the time of Union's requests for information and still effective (Tr. 32), was introduced as General Counsel Exhibit 2 (Tr. 32-33). 

     2.  By memorandum dated May 16, 1984, Mr. Lynn H. Herring, Chief of the United States Park Police (Tr. 58), inter alia, directed all supervisors that,  

     " . . . 

"Effective immediately, upon completion of the necessary investigation, all supervisors will submit a memorandum to their respective District and Branch Commanders containing the following information:

                    "A.   The classification of the adminis-trative or personnel complaint as set forth in General Order 32.04, Section V, ie,(Unfounded -Exonerated - Not Sustained - Sustained); 

                    "B.   Information pertaining to passed (sic) history and record of the involved Force member, and/or similar sustained violations of the same general order; and  

                    "C.   List all recommendations for punitive and/or corrective measures to be considered in sustained cases. 

"This information will no longer be recorded on Form 10-344 as previously accomplished.  (Emphasis in original) (G.C. Exh. 3(a)). 

     3.  Chief Herring in a memorandum dated August 15, 1989, which superseded the May 16, 1984, memorandum, above, advised, in pertinent part, all supervisors that,  

"Upon completion of an investigation, the investi-gating official shall submit a memorandum through the chain of command to his/her Division/Branch Commander, as appropriate, that contains: 

"1.   The classification of the administrative or personnel complaint as set forth in Section V of General Order 32.04 'Personnel and Admin-istrative Complaints' (i.e., Unfounded, Exonerated, Not Sustained, Sustained, Other). 

"2.   Information pertaining to the past history and record of the involved Force officer, and/or similar sustained violations of the same General Order. 

"3.   Recommendations for disciplinary and/or corrective measures (for sustained cases). 

"4.   Officials between the recommending official and the deciding official shall note on the memorandum their concurrence or non-concurrence of the recommendation. 

"The investigating official shall also complete a Supplementary Case Incident Record (NPS Form 10-344) that contains: 

"1.   Badge number and full name of officer involved.

"2.   The specific violation/charges against the officer. 

"3.   Description/synopsis of the incident and  investigation. 

"4.   Recommendations and findings as to what occurred.  (Not recommendations for disciplinary and/or corrective measures.)

"This document will be used by the deciding official to record the final disposition of the complaint. 

     . . ." (G.C. Exh. 3(b)) 

     4.  Article XVI of the Agreement is entitled, "COMPLAINTS AGAINST OFFICERS" and Section 5, entitled "Retention of Complaints.", provides, in part, that: 

"Case files classed as 'Sustained' will be retained in the Office of Internal Affairs, . . . and in the work folder, Personnel Section . . ."; 

and Section 6, entitled "Release of Complaint Files.", provides, in part, as follows: 

     "A.  To Officer/Representative.  An officer and/or Union representative shall, upon request, be permitted to review and receive at no cost one copy of the records and documentation pertaining to the complaint . . . "  (G.C. Exh. 2, Art. XVI, Sections 5 and 6) 

     5.  Respondent states in its Brief that,  

   "Recommendations for discipline by lower ranking officials are kept in the complaint files in the internal affairs unit . . . and, 'they are not kept anywhere else.' (TR. 83)" (Respondent's Brief, p. 11). 

Indeed, Ms. Joan L. Smith, Supervisor of Case Analysis and Review (Tr. 70), further stated, "The internal affairs unit files are called complaint files. . . ." (Tr. 83). 

     6.  There was no practice of giving the Union the internal recommendations (Tr. 30), although on some occasions they had been supplied (Tr. 30).  Mr. Edward H. Passman, attorney for the Union (Tr. 27), testified that the recommendations of the lower level supervisors would be helpful (Tr. 44); their decisions are often less political in nature (Tr. 45); they may be more frank in their recommendations than when testifying as a witness (Tr. 53, 55); and, if their testimony is inconsistent with their prior recommendations, it would provide a basis for their impeachment (Tr. 51). 

     7.  Before 1984, recommendations were recorded on Form 10-344 (Tr. 63); however, after May 16, 1984,  recommendations were not placed on Form 10-344 but were made in a separate memorandum (Tr. 64), as stated in Chief Herring's memorandum of May 16, 1984 (G.C. Exh. 3(a)); however, Ms. Joan L. Smith, Supervisor of Case Analysis and Review, testified that, although the recommendations in memorandum form, were normally attached to the case file (Tr. 72), the recommendations play no role in the decision as to what penalty is to be imposed (Tr. 80, 81).  Rather, the only factors considered are the Douglas factors

(Tr. 79).  Ms. Smith further stated that often the recommendation memo does not constitute the penalty that was decided (Tr. 80).  She also testified that the Douglas factor of continued trust or confidence in the employee is determined on the basis of the employee's performance evaluation, a copy of, which the employee receives (Tr. 86). 

     8.  Ms. Carol Treon, Assistant Chief, Branch of Employee and Labor Relations, testified that in the Ludwig case, Mr. Kaplan, representing the Union, had requested the internal recommendations and the arbitrator had stated he was "inclined to release those documents" but before anything was done the case was settled (Tr. 89). 

CONCLUSIONS 

     The Court, in NLRB v. FLRA, supra, upheld the Authority's construction of § 14(b)(4)(C) of the Statute, namely, that § 14(b)(4)(C) exempts from disclosure only guidance, advice, counsel, or training relating  specifically to the collective bargaining process.  For reasons set forth in my initial decision herein, 38 FLRA at 1050-1053, and in Department of Veterans Affairs, Finance Center, Austin, Texas, and National Federation of Federal Employees, Local 1745, Case No. 6-CA-10701, OALJ 92-57, n.10, pp. 19-20 (May 12, 1992), I respectfully disagree and urge the Authority to reconsider its decision.  There is no indication that the Authority gave any consideration to § 32 of the Statute in reaching its decision on the construction of § 14(b)(4)(C).  § 32 provides, in relevant part, that  

"No subpena 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) 

I am fully aware that the Authority's subpoena power under § 32 is not quite the same as an agency's duty under § 14(b)(4) to furnish data; nevertheless, I submit that the unequivocal language of § 32, set forth above, shows the studied purpose and intent of Congress to protect from disclosure intramanagement guidance, advice and counsel which Congress, I believe, expressed with equally unequivocal language in § 14(b)(4)(C).  The Court refers to § 32 in its n.6, 953 F.2d at 533; however, its dismissal of § 32 as "irrelevant to § 7114(b)(4)(C), because that subsection does not require disclosure of any data" is disingenuous and its statement that, 

   "Clearly § 7132 is irrelevant to             § 7114(b)(4)(C), because that subsection does not require disclosure of any data.  In this case, it is only § 7114(b)(4)(B) that requires disclosure, and then only with respect to matters necessary for discussion of subjects within the scope of collective bargaining.", 

is an egregious misrepresentation.  In truth, neither subsection (B) nor subsection (C) requires disclosure of anything.  Rather, it is § 14(b)(4), and only § 14(b)(4), which requires that data be furnished.  Thus, § 14(b)(4) provides: 

"(b) The duty of an agency . . . shall include the obligation. --

. . .  

               "(4) in the case of an agency, to furnish . . . data-- . . ." 

Subsections (A), (B) and (C), which follow, are each, limitations on the duty to furnish data, as follows: 

   "(A) which is normally maintained by the agency in the regular course of business; 

   "(B) which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and 

   "(C) which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining. . . ."  (5 U.S.C. § 7114(b)(4)(A), (B) and (C)). 

There are, therefore, three limitations set forth in subsections (A), (B), and (C)[5] on the duty to furnish data.   Thus, § 14(b)(4) requires:  the agency to furnish data to the extent not prohibited by law which [if it] is normally maintained; the agency to furnish data to the extent not prohibited by law which [if it] is reasonably available and necessary; and the agency to furnish data to the extent not prohibited by law which [if it] does not constitute guidance, advice, counsel, or training.  The Statute simply can not properly be read to mean that § 14(b)(4)(B) requires disclosure but 14(b)(4)(C) does not require disclosure.  

     Because § 14(b)(4)(C) requires the agency to furnish data, to the extent not prohibited by law, which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining, § 32 is, I submit, wholly relevant.  § 32, by using the word "intramanagement" to modify "guidance, advice, counsel, or training within an agency", states, in a "shorthand version", what is stated in         § 14(b)(4)(C) as "guidance, advice, counsel, or training provided for management officials or supervisors".  That is, "guidance, advice, counsel, or training provided for management officials or supervisors" means "intramanagement guidance, advice, counsel, or training within an agency" and vice versa.  While the statement of the Court, that use of the requirement "necessary" "in § 14(b)(4)(B) means that other data which is not "necessary" need not be furnished, is unassailable, i.e., as stated by the Court:  "A statute that requires 'necessity' implicitly recognizes counter-vailing interests, because a 'need', by definition, is an interest of particular strength and urgency.  If only prodisclosure interests were material to § 7114(b)(4)(B), the statutory factor of 'necessity' would be surplusage."  (952 F.2d at 531).  It is not correct, as the Court states in the concluding sentence of n.6, that "Documents that are strictly 'intramanagement' normally will not be discoverable under § 7114(b)(4)(B)."  Rather, documents that are strictly intramanagement normally will not be discoverable under § 7114(b)(4)(C).  There is nothing in the concept of "necessary" in subsection (B) that would make intramanage-ment documents not disclosable as intramanagement documents.  To the contrary, it is subsection (C), and only subsection (C), which renders intramanagement guidance, advice, counsel, or training not disclosable. 

     The Court's expressed concerns either are non-existent or more appropriately should be addressed directly.  For example, the Court referred to a counseling or warning about allegedly poor work performance and a confirming written evaluation in the employee's personnel file and then opined inter alia, that, "The union would need the information . . . to determine whether disciplinary action that has been taken is justified by the employee's record."  (952 F.2d at 533).  To be sure, the union would need such information, but in the first place, it is not guidance, advice or counsel and would not be excluded from disclosure under subsection (C), as I specifically noted herein, 38 FLRA at 1053 (see, also, Judge Fenton's statement in National Weather Service, 30 FLRA at 142; and Judge Naimark's state-ment in National Labor Relations Board, 38 FLRA at 536).  In the second place, an employee herein must be given notice in writing if the Officer's performance is believed to be below a satisfactoy level (G.C. Exh. 2, Art. VII, Sec. 5); each Officer receives a copy of his/her annual evaluation; and each Officer, and/or designated representa-tive, has the right to review inter alia, his/her personnel file (G.C. Exh. 2, Art. XXXII, Secs. 1, 2 and 4) and may request a copy of any record or document therein (id., Sec. 3).  The Court referred to a grievable claim of right to the data and opined, that, "Where an employee has a right to a particular pre-decision, that 'guidance,' 'advice,' 'counsel' or 'training' is no longer 'intramanagement.'  The decision is for the employee, not just for other agency officials. . . ." (NLRB v. FLRA, 952 F.2d n.6, 533).  I do not believe it properly can be said that advice or counsel ceases to be advice or counsel, because the employee and/or the union has a contractual right to receive it, and, assuming that the agency was not required to furnish the data under § 14(b)(4)(C), violation of a contractual entitlement to the data might, directly, be enforced as a vitiation of the contractual obligation.  National Treasury Employees Union, 46 FLRA No. 22, 46 FLRA 234, 245 (1992).   

     For the foregoing reasons, I urge that the construction of "relating to collective bargaining" in subsection (C) be reconsidered; that it be found at least as broad as "within the scope of collective bargaining" in subsection (B); and that the data withheld herein is exempt from production under § 14(b)(4)(C) of the Statute.  

     Nevertheless, I am constrained to follow the Authority's decision herein and obligated to follow the Court's decision and direction on remand.  In each of the cases consolidated in NLRB v. FLRA, supra, the Authority had found that the information sought was "necessary" within the meaning of § 14(b)(4)(B) of the Statute and, while the Court noted that under subsection (B), "A statute that requires 'necessity' implicitly recognizes countervailing interests. . . ." and "the requisite strength of the union's 'need' will depend on the intensity of countervailing interests" (id. at 531), as to subsection (C), the Court stated,

". . . management often has a legitimate interest in preserving for itself, alone, information on 'guidance,' 'advice,' 'counsel' or training' provided for management officials.  This interest is most weighty with respect to matters relating to the process of collective bargaining, which explains the categorical exemption found in § 7114(b)(4)(C); but the interest also exists, albeit to a lesser degree, in connection with all such information pertaining to subjects within the scope of collective bargaining. . . .  

   ". . . we hold that 'guidance,' 'advice,' 'counsel' or 'training' for management officials that is claimed to be necessary for the 'full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining' should be released upon union request only in those circumstances where the union has a particularized need for the information."  (id. at 531-532) (Emphasis in the original).   

     The Court did not define "particularized need" but stated, inter alia,  

". . . the contract may impose a duty on the agency regarding predecisional deliberation and the duty may then ground a grievable claim of right in the employee or union.  If so, disclosure normally should obtain."  (id. at 532-533).[6]   Second, "Another instance . . . is when the disputed document creates a grievable action.  A subordinate supervisor might counsel or warn an employee about allegedly poor work performance and then place a confirming written evaluation in the employee's personnel file.  If the parties' agreement . . . make[s] it clear that such evaluations are used to determine subsequent disciplinary action . . . the employee surely would have a strong and valid claim to disclosure. . . . " (id. at 533).

 

As noted above, the Court in footnote 6 also stated:

 

". . . Where an employee has a right to a par-ticular pre-decision, that 'guidance,' 'advice,' 'counsel' or 'training' is no longer 'intra-management'.  The decision is for the employee, not just for other agency officials. . . ."  (id. at 533, n.6) (Emphasis in the original). 

And, in its discussion of the instant cases, the Court again stated,  

". . . If the employee or union has a grievable right to the process, specifically to the requested pre-decision, then disclosure should obtain.  However, neither the administrative law judges . . . nor the FLRA . . . found that the requested recommendations were required by the parties' bargaining agreement or their established practices.  The issue was not addressed.  Nor do we know whether the documents were placed in the employees' personnel files." (id. at 534). 

APPLICATION OF PARTICULARIZED NEED TO THIS CASE 

     The record firmly shows, inter alia, that:  (a) there was no practice of giving the Union the internal recommen- dations; and (b) that memoranda containing recommendations, pursuant to G.C. Exh. 3(a), are not placed in the  employees' personnel files but are kept in the complaint files in the Internal Affairs Unit and are not kept anywhere else (Tr. 83). 

     The Court discussed "particularized need" in a different manner, as set forth above, but, to me, the Court's language means, in practical effect, that "guidance, advice, counsel" for management officials is presumptively exempt from disclosure, under subsection (C), unless the Union can show a particularized need for the data, "particularized need" being an unusual, critical, need greater than merely "necessary" within the meaning of  § 14(b)(4)(B).   

     A. General particularized need not shown

     Putting aside the contractual duty regarding the recommendations, which will be treated separately herein-after, I find nothing in the testimony of Mr. Passman that would constitute a particularized need.  His testimony shows that the recommendations might be helpful, desirable, beneficial, but not essential or critical.  As I previously held, a grievance goes to action taken, whether a denial of sick leave or imposition of discipline, and any lower level recommendation is neither relevant nor "necessary" within the meaning of § 14(b)(4)(B) of the Statute.  That is, the facts giving rise to the dispute, together with the rationale for the decision, and the corrective action or discipline to be taken, constitute the grounds for any grievance.  Knowledge of the recommendation, or concurrence, of any lower level supervisor is not, in my opinion, necessary for a full understanding and discussion of the case.  To be sure, the appropriateness of a penalty, or administrative action, may be challenged, inter alia, on the basis of consistency with the penalty imposed, or action taken, for the same or similar conduct by other employees; but not on the basis of a lower level recommendation.  The Authority disagreed, of course, National Park Service, supra, 38 FLRA at 1037.  Nevertheless, the Court held that, because the recommendations[7]     I would find that nothing required by Paragraphs A or B of G.C. Exh. 3(a), i.e.:  A. Classification of the complaint; B. Past history, similar sustained violations, would constitute guidance, advice or counsel within the meaning of § 14(b)(4)(C).  were guidance, advice or counsel, the data should be released only in those circumstances where the Union has a particularized need for the information.  The Union would be entitled to data from which the consistency of the penalty could be evaluated, e.g., U.S. Department of Treasury, Internal Revenue Service, Washington, D.C., 40 FLRA 303 (1991); Department of Defense Dependents Schools, Washington, D.C. and Department of Defense Dependents Schools, Germany Region, 28 FLRA 202 (1987); but recommendations would not show whether the action taken was, or was not, consistent with action taken for the same or similar conduct by other employees.  While the recommendation might help with cross-examination, the recommendation readily could be determined and explored by direct or cross-examination.  In short, the record does not demonstrate that a "particularized need" for the recommenda-tions has been shown.  Indeed, the record shows that in determining the penalty in a discipline case, the only factors considered are the Douglas factors (Curtis Douglas v. Veterans Administration, et al., 5 M.S.P.R. 280 (1981)), in which the Merit Systems Protection Board culled from court decisions, OPM and Civil Service Commission issuances twelve, ". . . factors that are relevant for consideration in determining the appropriateness of a penalty." (id. at 305) and, although normally attached to the case file, the recommendations play no role in the decision.  The record further shows that the Douglas factor of continued trust or confidence in the employee is determined on the basis of the employee's performance evaluation, a copy of which the employee receives, issued after the incident.   

     B.  Contractual right to recommendations 

     This case does not involve compliance with any agreed upon procedure and I quite agree with Respondent that neither Chief Herring's May 16, 1984 (G.C. Exh. 3(a)), nor his superseding August 15, 1989 (G.C. Exh. 3(b)) memorandum created or gave the Union any right to disclosure of supervisory recommendations.  Nevertheless, the Court stated that:

". . . If the employee or union has a grievable right to the process, specifically to the requested pre-decision, then disclosure should obtain. " (NLRB v. FLRA, 952 F.2d at 534)[8] 

     Respondent is correct that the examples posed by Court are inapplicable; however, the language of the Court is clear and unambiguous that if there is a grievable right to the requested pre-decision [here, recommendations], disclosure should obtain.  Article XVI, Section 6, of the parties' agreement (G.C. Exh. 2, Art. XVI, Sec. 6), which  concerns disciplinary complaints, i.e., Complaints Against Officers of alleged or suspected misconduct, creates a contractual right, and therefore, a grievable right (see, Article VIII, Section 1, which defines a grievance, inter alia, as ". . . a claim of breach, of a collective bargaining agreement . . .") to Complaint Files.  Article XVI does not define or specify the content of case files.  Article XVI, Section 5. "Retention of Complaints." provides that: 

"A.  Case files classed as 'Sustained' will be retained in the Office of Internal Affairs, U.S. Park Police, and in the work file folder, Personnel Section, U.S. Park Police.  Sustained complaint files leading to recommendation for disciplinary or adverse action under the provisions of 5 C.F.R. 752 or P.L. 87-797 will also be maintained by the Division of Personnel, National Capital Region, and will be used only for deciding the appropriate disciplinary action and in processing any subsequent appeals. . . ."  (Emphasis supplied) 

     Article XVI, Section 6, "Release of Complaint Files," provides, as relevant, that: 

"A.   To Officer/Representative.  An Officer and/or Union representative shall, upon request, be permitted to review and receive at no cost one copy of the records and documentation pertaining to the complaint . . .". (Emphasis supplied) 

Plainly, Article XVI, Section 6, gives an Officer, and/or his or her Union representative, an absolute and unqualified right, to review all complaint files, i.e., the complaint files maintained in the Personnel Section, Park Police; in Internal Affairs; and, where applicable, in the Division of Personnel, National Capital Region.  Of course, there is the accompanying right to receive a copy of the "records and documentation pertaining to the complaint" [there is the qualification, ". . . subject to regulations on release of information." (G.C. Exh. 2, Art. XVI, Section 6); but Respondent has not asserted, or referred to, any regulation qualifying release of files pertaining to the individual requesting the data.]  To be sure, the memoranda listing recommendations are kept only in the Internal Affairs  Complaint files but this in no manner affects the contractual right created by Article XVI, Section 6, to review that file, i.e., the Internal Affairs Complaint file, and whatever rights created by Article XXXII concerning "Supervisory and Work File Folders and Official Personnel Folders" is immaterial since the rights created by Article XVI are wholly independent and separate from the rights created by Article XXXII. 

     It is entirely possible that it was part of Respondent's design, in directing that recommendations be set forth in a separate memorandum rather than being recorded on Form 10-344 (G.C. Exh. 3(a)), that recommendations would not appear in files subject to employee/and or Union access; but if this were its purpose, it failed in its execution by providing, in Article XVI, for unrestricted access to Internal Affairs Complaint files and by making the  recommendations part of the Internal Affairs Complaint files.  Indeed, the language of Article XVI, Section 6, ". . . the records and documentation pertaining to the complaint . . ." could be read to mean that "all" records and documentation pertaining to the complaint, which would include recommendations, must be part of a complaint file, i.e., the complaint file maintained by Personnel (Park Service and, where applicable, National Capital Region) or Internal Affairs, but it is not necessary to speculate in this case since the record shows that Respondent keeps the memoranda recommending discipline in the Internal Affairs Complaint files. 

     In short, Article XVI, Section 6, creates an unqualified grievable right to review all complaint files maintained by Respondent, i.e., those files maintained by Personnel and by Internal Affairs, and to receive a copy of the records and documentation pertaining to the complaint; although Respondent maintains disciplinary recommendations only in the Internal Affairs Complaint files, the contract creates a grievable right to the requested pre-decision, i.e., the disciplinary recommendations, which are maintained as part of the Internal Affairs complaint files.  Because, in the Court's view, a grievable right to the requested information constitutes a particularized need, the requested disciplinary recommendations, notwithstanding that they constitute guidance, advice or counsel within the meaning of 14(b)(4)(C), must be disclosed, and Respondent's failure and refusal to furnish the requested data in Case Nos. 3-CA-60188 (Russo) and 3-CA-60182 (Farrell), violated §§ 16(a)(1), (5) and (8) of the Statute.[9]

     C.  Performance of Duty Sick Leave 

     There is a paucity of information concerning denial of Administrative (Sick) Leave [Case Nos. 3-CA-60183 (Goebel) and 3-CA-60288 (Dennis)].  As stated in my original decision the parties, ". . . stipulated that the following is a summary of the process followed when making administrative (sick) leave decisions. 

   "(a)  An officer claims that he/she was injured or taken ill in the line of duty.  The officer completes the required forms, advises a supervisor of the illness or injury, and seeks medical attention and/or treatment.  The Medical Services Officer provides the Commander, Adminis-trative Branch, Services Division, USPP (the approving official) with all the medical reports relating to the claim and the affected officer's claim request, as well as lower level management opinions and/or recommendations regarding the appropriateness of the request for administrative leave.  

   "(b)  The approving official makes a decision as to whether the claim will be approved based on a preponderance of the medical evidence and notifies the officer in writing of the decision.  If the officer disagrees with the approving officials's (sic) decision, he/she may appeal the decision through the negotiated grievance

procedure contained in the 1985 Labor-Management Agreement." (National Park Service, supra, 38 FLRA at 1049). 

     At the hearing on remand, Ms. Harman, Chief of Employee and Labor Relations, National Capital Region, stated that a denial of administrative sick leave would not necessarily be handled as a complaint (Tr. 66) and further stated that, 

". . . they have their own, another process for handling the administrative sick leave request and denials."  (Tr.67) 

She further testified,  

"A  The Park Police are covered under two different titles, Title 4 and Title 5.  And the procedures for sick leave are very different under those two titles.  Back in '84, uhm, more than likely, they were Title 4 employees.  Since then, though, they've had to change, because they do have Title 5 employees.
 

   "If -- now, if under Title 5, if the super-visor is controverting a claim for an on the job injury, of course his recommendations would go with that.  If they have knowledge of the injury, you know, they would submit that kind of information.
 

   "Prior to this, if there were any extenuating circumstances that the supervisor felt either the employee was not going by the rules and regula-tions or following the general order, they would certainly make note of that.
 

"Q  Would they be required to make a recommen-dation as to whether or not the leave be approved under those circumstance? 

     "A  I'm not sure." (Tr. 68-69) 

     Ms. Smith, Supervisor of Case Analysis and Review Section, United States Park Police, testified that she knew, ". . . of no requirement for the supervisors to make a recommendation in the POD [performance of duty] adminis- tractive sick leave." (Tr. 84) and that she knew of ". . . no practice in the Park Police" (Tr. 85) that supervisors make a recommendation as to whether or not employees' requests for performance of duty leave be granted, that, "I know there is no practice currently.  I know of no practice prior to 1987." (Tr. 85)   

     Charging Party states in its Brief,

"Similarly, with respect to requests for administrative sick leave, the agency's procedures require lower-level supervisors to provide their recommendations."  (Charging Party's Brief,
p. 8) 

The record is to the contrary.  Thus, Ms. Harman when asked whether supervisors would be required to make a recommen-dation as to whether or not the leave be approved, responded, "I'm not sure" (Tr. 69); and Ms. Smith testified that she knew, ". . . of no requirement for supervisors to make a recommendation in the POD administrative sick leave" (Tr. 84); that she knew of no practice in the Park Police that supervisors make a recommendation as to whether or not employees' requests for performance of duty leave be granted (Tr. 85); that she knows there is no practice currently and knows of no practice prior to 1987 (Tr. 85).[10]    

     General Counsel has merely recited the information not furnished as set forth in my initial decision [38 FLRA at
1047 and 1048] (General Counsel's Brief, p. 4) and otherwise makes no reference to the recommendations in Case
Nos. 3-CA-60183 and 60288.

     Respondent's sole reference to the information not furnished in Case Nos. 3-CA-60183 and 60288, is its statement that,  

   "In this case, the stipulation . . . and the attached exhibits . . . clearly show that the Union requested the predecisional memoranda passed up the chain of command solely for the expressed purpose of presenting or pursuing the grievances concerning . . . certain denials of administrative sick leave. . . ."  (Respondent's Brief, p. 6)

      The document involved for the most part was a five page U.S. Park Police Illness/Injury Record form.  The Union was furnished each form except that data under "Administrative Remarks" was deleted, because, as Respondent stated, this  was, "considered to be part of the internal management decision making process, e.g., recommendations" and "not relevant to the grievance" (38 FLRA at 1046, 1047, 1048).  In addition to the above noted form, in Case No. 3-CA-60183 (Goebel) there was a two page supplementary Case/Incident Record form entitled Medical Supplemental, no part of which was furnished the Union.  As noted, 38 FLRA at 1047, "This is a summary of details set forth in USPP Administrative Complaint Nos. 42529/85 and 42745/85 with regard to Officer Goebel (footnote omitted).  The final paragraph constitutes the recommendation of Major Miller."  Except for the final paragraph which, because it was the recommendation of Major Miller, clearly was guidance, advice or counsel within the meaning of § 14(b)(4)(C) of the Statute, there is grave doubt that the other portions of the Medical Supplement constituted guidance, advice or counsel; however, as I noted, no resolution was made because the parties had stipulated that Respondent had furnished all information requested except documents or portions of documents containing recommendations, opinions of supervisors or concurrences.  (38 FLRA at 1047, n.5).  Accordingly the Medical Supplemental, because of the stipulation of the parties, was treated as a recommendation; however, I specifically stated, that,  

". . . I do not however, hold, or imply, that any document containing a recommendation may be with-held in its entirely if portions of that document contain information necessary for the union, pursuant to § 14(b)(4)(B), and which is not guidance, advice, or counsel, see, National Weather Service, supra, 30 FLRA at 142." (38 FLRA at 1053) (Emphasis in original).  See, National Labor Relations Board, supra, 38 FLRA at 536. 

     The record gives no guidance whatever as to where Illness/Injury Record forms and Medical Supplementals are kept.  I am aware that Article XXXII of the parties' Agreement, entitled, "Supervisory and Work File Folders and Official Personnel Folders", provides in part, as follows: 

"Section 1.  Supervisory Folders are maintained by the Officer's immediate supervisor.  Work File Folders are maintained by the U.S. Park Police Personnel Section or the Field Office.  The Official Personnel Folder (OPF) shall be kept in the National Capital Region Division of Personnel. 

"Section 2.  Each Officer and/or his/her designated representative has the right to review his/her Supervisory Folder, Work File Folder and Official Personnel Folder.    

"Section 3.  When requested, a copy of any record or document in the Supervisory Folder, Work File Folder and OPF should be given to the Officer. . . ." (G.C. Exh. 2 Art. XXXII, Sections 1, 2, 3) 

However, in view of the dearth of guidance provided by the record, I take administrative notice of some of the government-wide regulations of the Office of Personnel Management which seem most pertinent.  These provide, in material part, as follows: 

     "Subpart C - Official Personnel Folder

. . . 

"§ 293.302  Establishment of Official Personnel Folder

     "Each agency shall establish an Official Personnel Folder (OPF) for each employee. . . .  

. . .  

"§ 293.304  Maintenance and content of folder

   "The head of each agency shall maintain in the Official Personnel Folder the reports of selection and other personnel actions named in section 2951 of title 5, United States Code.  [appointment and residence of appointee; separation during probation; transfer; resignation; and removal]  Performance ratings of record, . . . may also be maintained in the Official Personnel Folder for each employee covered under the Performance Management and Recognition System under Part 540 of this chapter.  The folder shall also contain long-term records affecting the employee's status and service as required by OPM's instructions and as designated in FPM Supplement 293-31."  (5 C.F.R. Subpart C, §§ 293.302, 293.304). 

"Subpart E - Employee Medical File System Records 

. . .  

"§ 293.502  Definitions

. . .  

   "Employee Medical Folder (EMF) means a separate file folder . . . established to contain all of the occupational medical records (both long-term and short-term records) designated for retention, which will be maintained during the employee's Federal service." (5 C.F.R. §293.502)
 

"293.505  Establishment and protection of Employee Medical Folder

. . .  

   "(b) Neither the original occupational medical record nor duplicates are to be retained in the OPF. . . ." (5 C.F.R. § 293.505(b))
 

     There are discrete records for pay, e.g., 5 C.F.R. § 530.205; for absence and leave, e.g., 5 C.F.R. § 630.101; etc., which are not part of an employee's Official Personnel File. 

     Since the record fails to show any grievable right to information concerning denial of Administrative (Sick) Leave, no particularized need, on the basis of contractual obligation or right, was shown for the information not furnished in Case Nos. 3-CA-60183 and 3-CA-60288.  No particularized need apart from a grievable right was shown.  The stipulation of the parties specifically provides that, 

"(b) The approving official makes a decision as to whether the claim will be approved based on a preponderance of the medical evidence. . . ."  (38 FLRA at 1049) (Emphasis supplied) 

Consequently, inasmuch as the parties have stipulated that in making administrative (sick) leave decisions the approving official's decision will be made on a preponderance of medical evidence, any recommendation by a subordinate is not "necessary" within the meaning of § 14(b)(4)(B) of the Statute.  For all of the forgiving reasons, since no particularized need has been shown, I shall recommend that the information requested in Case Nos. 3-CA-60183 (Goebel) and 3-CA-60288 (Dennis) be denied and that those portions of the Complaint alleging a violation of § 16(a)(1), (5) and (8) in those cases be dismissed. 

     D. REMEDY 

     All four of the grievances for which the information was requested by the Union herein have been resolved
(Tr. 20-21).  Nevertheless, Charging Party requests that the agency be ordered to disclose the requested information.  (Charging Party's Brief, p. 8).  General Counsel, however, does not; but requests only that, ". . . an appropriate cease and desist order issue" (General Counsel's Brief,

p. 13) and an appropriate notice be posted.  Under the circumstances, since the grievances all have been resolved without the requested information, it would not effectuate the purposes or polices of the Statute to direct Respondent to furnish the Union with the information requested in the disciplinary cases, Nos. 3-CA-60168 (Russo) and 3-CA-60182 (Farrell); and, in agreement with General Counsel, the appropriate remedy is a cease and desist order with appropriate posting, F.E. Warren Air Force Base, Cheyenne, Wyoming, 44 FLRA No. 39, 44 FLRA 452, 460 (1992); Department of The Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Detroit District, Detroit, Michigan, 43 FLRA 1378, 1390, 1392 (1992);  U.S. Department of Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Helena District, Helena, Montana,
39 FLRA 241, 255 (1991). 

     Having found that there was a grievable right to the information, and therefore, a particularized need for the requested recommendations, in Case Nos. 3-CA-60168 and 3-CA-60182, it is recommended that the Authority adopt the following: 

ORDER

 

     Pursuant to § 18(a)(7) of the Statute, 5 U.S.C. § 7118(a)(7), and § 2423.29 of the Regulations, 5 C.F.R.
§ 2423.29, it is hereby ordered that the National Park  Service, National Capital Region, United States Park
Police, shall: 

    1.  Cease and desist from: 

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

        (b)  In any like or related manner interfering with, restraining, or coercing their employees in the exercise of their 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)  Post at its facilities copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority.  Upon receipt of such forms, they shall be signed by the Regional Director, National Capital Region, and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted.  Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material. 

        (b)  Pursuant to 5 C.F.R. § 2423.30, notify the Regional Director, Washington, DC Region, Federal Labor Relations Authority, 1111 18th Street, NW, P.O. Box 33758, Washington, DC 20033-0758, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

    IT IS FURTHER ORDERED, that, no particularized need having been shown for the sick leave request information, those portions of the Complaint alleging violation of §§ 7116(a)(1), (5) and (8) in Case Nos. 3 CA-60183 (Goebel) and 3-CA-60288 (Dennis) be, and the same are, hereby, dismissed. 

                                                                                                                            
                                                                                     
    WILLIAM B. DEVANEY
  
                                                                                        Administrative Law Judge

   

 

Dated:  February 4, 1993
       
    Washington, DC


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 by the Police Association of the District of Columbia, the exclusive representative of our employees, reguested information concerning disciplinary actions taken against bargaining unit employees, including the recommendations, concurrences, and opinions of supervisors and managers. 

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.

                                                                                                                                        
  
                                                                                                              Activity

 

 

Dated:                   By:                                
         
                       (Signature)       (Title)

 This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.  

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Washington, DC Region, Federal Labor Relations Authority, whose address is:  1111 18th Street, NW, P.O. Box 33758, Washington, DC 20033-0758 and whose telephone number is:  (202) 653-8500.



ALJ's FOOTNOTES

[1]  In the caption of the Authority's decision, in

38 FLRA 1027 (1990), through a typographical error, the last word "Police" of Respondent's name erroneously was changed to "Service" and so it appeared in 952 F.2nd 529 (D.C. Cir. 1992) and in 44 FLRA No. 117, 44 FLRA 1537 (1992).  On motion of Respondent at the hearing this was corrected  

[2]  38 FLRA 1027 (1990).

[3]  National Labor Relations Board, 38 FLRA 506 (1990).  The Authority's Decision and Order on Remand appears at 44 FLRA No. 120, 44 FLRA 1545 (1992).  Following remand, this case was settled.

[4]  Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 38 FLRA 965 (1990) (hereinafter "McClellan AFB").  The Authority's Decision and Order on Remand appears at 44 FLRA No. 120,  44 FLRA 1545 (1992), Following remand, this case also was settled.

[5]  A fourth limitation is, of course, set forth in the body of § 14(b)(4), namely, "to the extent not prohibited by law".

[6]  The Court gave two examples.  First, ". . . a collective bargaining agreement may establish an agency procedure for employee action . . .  The agreed - upon procedure . . . pursuant to which subordinate officials might be required to make interim recommendations before a final decision issues.  . . . the recommendations should normally be disclosed to the union, assuming the union could grieve the agency's failure to follow the procedure.  In such a case, the union would have a particularized need to know whether the agency has complied with the collective bargaining agreement [footnote omitted]" (id. at 533).  Clearly, the union would, under such example, have a particularized need to know whether the agency had complied with the agreed upon procedure, but, I submit, proof of compliance would only be proof that each subordinate official made a recommendation, not the content of the recommendations.  Here, Chief Herring's memoranda of May 16, 1984, and August 5, 1989 (G.C. Exhs. 3(a) and (b)) provided for a memorandum containing recommendations for punitive and/or corrective measures; however: (i) this case does not involve a grievance, or claim, that Respondent did not comply with the procedure; (ii) it was not shown that a failure to comply with Chief Herring's memoranda could have been grieved; (iii) if grievable, the Union would be entitled only to proof that a recommendation had been made, not to the supervisor(s) recommendation.

 [7]  Specifically, I had held that, "Nature of Complaint" and "Previous Record" [Case No. 3-CA-60182, John P. Farrell] do not constitute guidance, advice or counsel (id. at 1046, n.4 1053); noted that information on the "Medical Supplement", exclusive of the last paragraph which clearly was a recom-mendation, might or might not have constituted guidance, advice or counsel (id. at 1053), an issue not decided because the parties stipulated that Respondent, ". . . furnished all information requested with exception of . . . recommendations, opinions of supervisors/management or concurrences. . . ." (id. at 1047 n.5); and stated that, "I do not, however, hold, or imply, that any document containing a recommendation may be withheld in its entirety  if portions of that document contain information necessary for the union, pursuant to § 14(b)(4)(B) and which is not guidance advice or counsel. . . ." (id. at 1053). 

[8]   The court also stated, variously, that 

   "Another instance in which 'guidance,' 'advice,' 'counsel' or 'training' . . . might be disclosable . . . is when the disputed document creates a grievable action." (id. at 533)   

     . . .  

"Where an employee has a right to a particular pre-decision, that 'guidance,' 'advice,' 'counsel' or 'training' is no longer 'intramanagement.'  The decision is for the employee, not just for other agency officials." (id. at 533, n.6)

[9]  This case does not involve an Adverse Action, defined by Article XVIII as " . . . Removal, Suspension of over 14 calendar days, Reduction in garde and pay, and Furloughs Without Pay. . . ." (G.C. Exh. 2, Art. XVIII, Section 1). Section 3 of Article XVIII provides that: 

"During any part of the adverse action proceedings . . . upon request the Employer shall furnish to the Officer or his/her representative all records and documents within the possession of the Employer relied upon to substantiate the adverse action."  (id., Section 3) (Emphasis supplied)

[10]  It is quite correct that Ms. Harman testified, as Charging Party notes (Charging Party's Brief, p. 8), ". . . if the supervisor is controverting a claim for an on the job injury, of course his recommendations would go with that.  If they have knowledge of the injury, you know, they would submit that kind of information." (Tr. 6