48:1239(132)CA - - Customs Service, Region IV, Miami, FL & NTEU - - 1993 FLRAdec CA - - v48 p1239
[ v48 p1239 ]
The decision of the Authority follows:
48 FLRA No. 132
FEDERAL LABOR RELATIONS AUTHORITY
U.S. CUSTOMS SERVICE
NATIONAL TREASURY EMPLOYEES UNION
ORDER REMANDING CASE
December 30, 1993
Before Chairman McKee and Members Talkin and Armendariz.(1)
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions filed by the General Counsel and the Respondent to the attached decision of the Administrative Law Judge. No opposition was filed by the General Counsel or the Respondent.
The complaint alleges that the Respondent violated section 7116(a)(1), (5), and (8) of the Federal Service Labor- Management Relations Statute (the Statute) when it failed to furnish the Union with information requested under section 7114(b)(4) of the Statute. The Judge found that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute when it failed to furnish the Union with certain of the requested information but that the Respondent did not violate the Statute by failing to furnish other information.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the 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 only to the extent consistent with this decision.
The facts, which are fully set forth in the Judge's decision, are summarized here.
During the fall of 1989, the Respondent assigned Supervisory Customs Inspector Jerome Long to conduct a survey of the overtime practices and procedures at ports and facilities within the Miami District. The survey, referred to as the "Long Report," discussed and evaluated the assignment of overtime at various locations and recommended certain shift changes and reallocations of personnel.
In the fall of 1990, the Respondent formed a panel, composed of senior-level managers from Washington, D.C., to evaluate the management of overtime at regional and district levels. The panel conducted on-site field surveys of Miami and other districts and ports concerning all aspects of overtime. The panel issued a report, referred to as the "Overtime Report," containing findings, recommendations, and an action plan with due dates for various actions to be taken by various management officials.
On February 22, 1991, the Respondent notified the Union of certain overtime assignment and shift changes that would become effective March 10, 1991. The Union requested to bargain over the impact and implementation of the proposed changes and also requested various documents from the Respondent, including copies of the Long Report and the Overtime Report. The Respondent refused to provide the requested documents, claiming that they were exempt from disclosure under section 7114(b)(4) of the Statute as "inter- management communications . . . ." G.C. Exh. 6 at 1.
III. Judge's Decision (2)
The Judge found that the Long Report addressed overtime practices and procedures at various locations within the Miami District and contained analysis of and recommendations concerning the assignment of overtime. The Judge concluded that the Long Report was necessary, within the meaning of section 7114(b)(4) of the Statute, because "it covered details in respect to the very issue which would be the subject of negotiations" between the Respondent and the Union and that the Respondent violated the Statute by failing to provide the Union with a copy of the report.(3) Judge's Decision at 8.
The Judge found that the Overtime Report was not necessary for the Union to engage in bargaining. According to the Judge, although the Overtime Report contained "specific instructions and actions to be taken by management officials with respect to overtime management[,]" the report did not "include data or information which the Union could consider in its negotiations with Respondent . . . ." Id. at 11. The Judge concluded that the Respondent did not violate the Statute by refusing to furnish a copy of the Overtime Report.
IV. Positions of the Parties
The General Counsel excepts to the Judge's findings regarding the Overtime Report. The General Counsel claims that the Overtime Report is necessary, within the meaning of section 7114(b)(4) of the Statute, for the Union to discuss, understand, and negotiate over the Respondent's shift and overtime assignment changes. According to the General Counsel, the Respondent "made specific proposals based on the [Report] and made references to it throughout the entire negotiation process over overtime procedures." G.C.'s Exceptions at 3.
The Respondent excepts to the Judge's failure to conclude that disclosure of the Long Report would violate "the deliberative process privilege" incorporated in Exemption 5 of the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Brief in Support of Respondent's Exceptions at 5. The Respondent also contends that it was not required to disclose the Long Report because the Union did not establish a "'particularized need'" for the document, as required by the court's decision in National Labor Relations Board v. FLRA, 952 F.2d 523 (D.C. Cir. 1992) (NLRB v. FLRA), reversing and remanding in part National Labor Relations Board, 38 FLRA 506 (1990) (NLRB). Brief in Support of Respondent's Exceptions at 5.
V. Analysis and Conclusions
At the outset, we reject the Respondent's argument that the Long Report is protected from disclosure to the Union by Exemption 5 of the FOIA, 5 U.S.C. § 552(b)(5).(4) It has long been established that the FOIA does not prohibit release of any data. It merely permits agencies to withhold from release data falling within its exceptions. For example Department of the Army Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 26 FLRA 407, 412-13 (1987).
The issues raised by the exceptions in this case are whether the Long Report and the Overtime Report are necessary, within the meaning of section 7114(b)(4) of the Statute.
In National Park Service, National Capital Region, United States Park Police, 48 FLRA No. 127 (1993)(Member Talkin concurring in part and dissenting in part) (National Park Service), we addressed the standard we will apply to determine whether certain intramanagement documents are necessary, within the meaning of section 7114(b)(4) of the Statute. In particular, we adopted the court's decision in NLRB v. FLRA, and stated, as relevant here, that:
[A]n 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 [in NLRB v. FLRA], for such information.
National Park Service, 48 FLRA No. 127, slip op. at 10. We noted that the court in NLRB v. FLRA set forth two examples of instances where a union could establish a particularized need for intramanagement advice, guidance, counsel, or training: (1) those where a union has a grievable complaint covering the information; and (2) those where a requested document creates a grievable action. We also noted that, as no other bases on which to find a particularized need were asserted in that case, it was unnecessary to address what bases other than the two examples would support a finding of particularized need.
In this case, it is clear that both the Long Report and the Overtime Report constitute advice, guidance, and/or counsel provided for management officials. Both reports were created at the request of management for use by management in making decisions regarding, among other things, the assignment of overtime. Moreover, both Reports contain recommendations regarding, among other things, assignments of overtime, allocations of personnel, and shift changes. In this connection, the Respondent asserts a specific interest in refusing to disclose the reports in order to "encourage open and frank discussions by protecting the confidentiality of advisory opinions, recommendations, and deliberations . . . ." Brief in Support of Respondent's Exceptions at 9.
Consistent with our decision in National Park Service, it is necessary to determine whether the Union has established a particularized need for the requested information. The Judge noted, in this respect, that there was an "absence of any evidence adduced by the Union as to such particular need." Judge's Decision at 11. However, the Judge also noted that, at the time of the hearing and the Judge's decision, the Authority had not adopted the court's decision in NLRB v. FLRA and "[n]o burden ha[d] been imposed upon a union to establish a 'particularized need' in order to obtain the [requested] information." Id.
In these circumstances, we find that the complaint in this case must be remanded to the Judge for further proceedings. On remand, absent settlement, the Judge should provide an opportunity for the parties to address whether the Union has a particularized need for the requested information. In this regard, we do not address what circumstances, in addition to the two examples set forth by the court in NLRB v. FLRA, may establish such need.(5)
The complaint is remanded to the Judge for further proceedings.
(If blank, the decision does not have footnotes.)
1. Member Talkin's separate concurring opinion is found at note 5 below.
2. The Judge noted that there was no dispute that the requested documents were normally maintained and reasonably available. As the Respondent does not except to these findings, we will not address them further.
3. The Judge also concluded that, although the Long Report contained recommendations concerning overtime, the report was not exempt from disclosure under section 7114(b)(4)(C) of the Statute because the recommendations did not relate to collective bargaining. As no exceptions were filed on this point, we will not address it further.
4. Exemption 5 provides that an agency is not required under the FOIA to disclose:
inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency[.]
5 U.S.C. § 552(b)(5)
5. For the reasons stated in my partial dissent in National Park Service, I disagree with the position adopted by my colleagues that in cases of this nature a union must demonstrate a particularized need for requested information that conforms to the standard set forth in NLRB v. FLRA. In National Park Service, I also articulated a definition of necessity that I would apply in determining whether a union has established that requested information is necessary so as to require disclosure under section 7114(b)(4)(B) of the Statute. Given the circumstances of this case, I agree that a remand would be helpful in adducing evidence to assist the Authority in determining whether the requested information should be disclosed, regardless of the standard applied to reach that result.
U.S. CUSTOMS SERVICE, REGION IV, .
and Case No. 4-CA-10904
Peter A. Quinter, Esq.
For the Respondent
Godfrey E. Goff, Esq.
For the General Counsel
Before: WILLIAM NAIMARK
Administrative Law Judge
This case arises under the Federal Service Labor-Management Relations Statute, 5 U.S.C. section 7101 et seq., (herein called the Statute). It is based on a charge filed on September 3, 1991 by the National Treasury Employees Union (herein called the Union)1/ against U.S. Customs Service, Region IV, Miami, Florida (herein called the Respondent).
Pursuant to a Complaint and Notice of Hearing issued on September 23, 1991, by the Regional Director, for Region IV, Federal Labor Relations Authority, a hearing was held before the undersigned on December 17, 1991 at Miami, Florida.
The Complaint alleged, in substance, that on August 20,2/ NTEU Chapter 137 President Reta Grant requested from Respondent: (a) a copy of the Regional Implementation Plan; (b) a copy of the preliminary study performed by SCI3/ Jerome Long. It was further alleged that the data requested was needed in regard to negotiation over a change in hours at the Miami International Airport. Further, that since August 20, 1991 Respondent has not supplied the requested information and has refused to comply with section 7114(b)(4) of the Statute - all in violation of section 7116(a)(1)(5) and (8) thereof.
Respondent's Answer duly served on October 21, 1991, admits that the data was not supplied and that it is not prohibited from disclosure by law. It denies that the information is necessary for full and proper discussion, understanding and negotiation of subjects within the scope of bargaining. Further, it denied that the date does not constitute guidance, advice, counsel, or training provided for management officials to supervisors, relating to collective bargaining. The commission of any unfair labor practice is also denied.
All parties were afforded full opportunity to be heard, to adduce evidence, and to examine as well as cross-examine witnesses. Briefs were filed which have been duly considered.
Upon the entire record, from my observation of the witnesses and their demeanor, and from all of the testimony and evidence adduced at the hearing, I make the following findings and conclusions:
1. At all times material herein the National Treasury Employees (NTEU) has been, and still is, the exclusive representative of an appropriate unit of Respondent's employees.
2. At all times material herein Chapter 137 has been, and still is, an agent of NTEU for representing unit employees at the Respondent's Miami, Florida location.
3. During the fall of 1989 Ralph C. Muser, Assistant District Director, Inspection and Control, of Respondent became concerned that overtime charges had increased greatly during the past several years. Accordingly, he designated Jerome Long, Supervisory Customs Inspector, to conduct a survey re assignment of overtime at the various ports of the Miami District. Muser was interested in determining whether the local procedures and practices were in compliance with law and regulations.
4. Long began working on the overtime survey around November or December 1989. The survey by Long, referred to as the "Long Report", covered overtime at the various ports, branches and Ft. Lauderdale Airport in the Miami District. It includes the mention of practices at these sites with respect to assignments of personnel and overtime, options to assignments of personnel to overtime, evaluations and opinions, as well as recommendations re shift changes and reallocation of the workforce. It covered the various types of vessels or ships and aircraft operating at the different ports and facilities.
5. The "Long Report" was never the subject of a final report by Muser. Record facts show it was not completed nor adopted as policy by management, and no changes by Respondent were made as a result of the report.
6. In the fall of 1990 headquarters, U.S. Customs formed a Blue Ribbon Panel to study the ways to effectively manage overtime. It was composed of a group of senior mana-gers organized at Washington headquarters who were to evalu-ate overtime policies and procedures. It was formed to conduct an on-site field survey of Miami and other districts and ports concerning all aspects of overtime. The Panel issued a report containing findings and recommendations as to the management of overtime. These were endorsed by management, and a group or committee of high level officials was formed to determine how to implement the findings of the Panel. The committee made various recommendations to manage and control overtime at the Regional and District levels.4/
7. The Blue Ribbon Panel's overtime report provided for an Action Plan with due dates for each action. This plan implemented the Blue Ribbon Panel overtime Report which, in turn, was referred to during negotiations with the union. The Action Plan is also referred to as the Regional Implementation Plan. It consists of three parts and is designated as a plan for Managing Overtime For Increased Public Service. The Plan calls for action to be taken by Regional Commissioners, District Directors and other management officials. Due dates for such actions are specified. Actions are directed in respect to various items. They include alignment of Staff to Workload, Sunday and Holiday Overstaffing, Automated Information System, Monitoring Overtime, Quantifying Overtime Costs, and Reducing Review of Entries By Inspectors.
8. Under date of February 22, 1991 Director Knapik wrote Reta Grant, President of NTEU, Chapter 137, that certain adjustments in overtime assignments, as well as shift assignment changes, would be made effective March 10, 1991.
9. After receipt of this notice, Grant requested that Respondent bargain over the impact of the proposed changes.
10. In a letter dated February 28, 1991 the Union requested 17 items from Respondent in response to Knapik's notice re the intended changes. Included in the request were the following:
(a) A copy of any relevant reviews of overtime procedures conducted at the District, Region or Headquarter levels pertaining to this issue.5/
(b) A copy of the Miami District overtime survey conducted by SCI Jerome Long concerning overtime practices and money saving proposals.
11. Respondent replied in a letter dated March 15, 1991 stating that the material, which was under review, would be delivered, if appropriate, by March 20, 1991.12. On April 2, 1991 Respondent wrote Grant and stated, in substance, that (a) the only data which could be described as overtime reviews, as requested, are intermanagement communications representing deliberations and ideas between managers. This would not be provided. Data re patterns of overtime use was attached and provided. Other data concerning workload information and overtime records has been and remains available to the Union and (b) the overtime survey of the Miami District by Supervisor Long was not completed and is intermanagerial correspondence as in (a), supra.
13. By letter dated April 8, 1991 the Union repeated its request for the data, referred to above, which management designated as intermanagement communications.
14. In May 1991 the parties began negotiations over the impact and implementation of the change in overtime shift proposals. During negotiations management referred to the request by the Union for the two items heretofore specified, and refused to provide the data for the same reason theretofore given.6/
15. Union representative Grant spoke to Lennie Dorman, Regional EMS Staff Officer, on several occasions in an attempt to clarify the information which the Union sought from Respondent.
16. The record reflects that on August 23, 1991 Grant wrote the Authority and stated that, as suggested, she called Dorman and requested (a) a copy of the Regional Implementation Plan developed as a result of the Blue Ribbon Report, (b) the overtime study performed by SCI Jerry Long.
17. Respondent refused to provide copies of these two documents. In respect to negotiations, the parties were at impasse at the time of this hearing.
The ultimate issue for determination is whether Respondent violated section 7116(a)(1), (5) and (8) of the statute by failing and refusing to provide the Union, as requested, with copies of the "Long Report" and the Regional Implementation Plan which were overtime studies or surveys.7/
General Counsel contends that both documents should have been as provided under section 7114(b) of the Statute, and Respondent failed to comply therewith.
Respondent, in contending otherwise, argues that (a) they were not "necessary" to the Union for a full discussion of collective bargaining subjects; (b) the surveys were predecisional and part of the deliberative process so as to be privileged; (c) section 7114(b)(4)(c) allows the Agency not to disclose data which constitute guidance and advice to management officials if it does not relate to a particular person affected by the information.
Section 7114(B)(4) of the Statute obligates an agency to furnish a union, upon request, and to the extent not prohibited by law, data which (1) is normally maintained in the regular course of business; (2) is reasonably available and necessary for discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and (3) does not constitute guidance, advice, counsel or training provided for management officials or supervisors, relating to collective bargaining.8/It is well settled that, under section 7114(B)(4) of the Statute, the exclusive representative is entitled to information that is necessary to enable it to carry out its representational responsibilities. This includes the investigation, evaluation and processing of grievances, as well as fulfilling its duty in the negotiation or administration of a labor agreement. Commander Naval Air Pacific, San Diego, California and Naval Air Station, Whidbey Island Oak Harbor, Washington, 41 FLRA 662 673-674 (1991); U.S. Department of the Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Chicago, Illinois District Office, 40 FLRA 1070 (1991).
Turning to the instant case, the General Counsel insists that the studies made by Respondent ("Long Report" and Regional Implementation Plan) were needed to enter into meaningful negotiations concerning the impact and implementation of the proposed changes. While Respondent did furnish many of the 17 items requested by the Union on February 28, 1981, that did not relieve management from supplying the two studies which it refused to furnish. It is also insisted that neither document constitutes guidance, advice, counsel, or training provided for management officials or supervisors relating to collective bargaining. Further, that even if the data requested is part of management's deliberative processes, disclosure thereof is not precluded.
The "Long Report"
There is no contention that the documents are not normally maintained and reasonably available. It is also conceded in the Answer that disclosure is not prohibited by law. However, Respondent does maintain that disclosure of the Report was not necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining.
The information contained in the "Long Report" dealt with the practices and procedures re overtime and assignments at the various ports and locations within the Miami District. Further, it included certain options and recommendations with respect to assignments concerning overtime. The Respondent advised the Union that it intended to make changes involving shift changes and also overtime adjustments. Moreover, management notified the Union that it would negotiate as to the impact and implementation of the proposed changes.
The facts as appear herein lend considerable weight to a conclusion that the data in this Report was necessary for the Union to fulfill its representational functions. Becoming apprised of the various procedures at the ports concerning overtime, as well as the shift assignments, could indeed bear on proposals made by the Union in connection with proposed changes. Since the survey re overtime concerned detailed facts as to the assignment of overtime to different classifications, the Union could utilize its content to frame proposals and negotiate the impact resulting from the changes to be made by management.
Respondent adverts to the fact that the survey by Long was never completed and, moreover, is to be characterized as purely "background" information which plays no part in management's final decisions on this issue. It is also contended that no grievance is involved herein, and that the changes do not affect a particular employee so as to reflect a particular need for the information. These arguments are not meritorious. Irrespective of whether the Report was finalized or not, it covered details in respect to the very issue which would be the subject of negotiations. The proposed changes by management deal with practices and procedures presently in effect. If changed by Respondent the Union would need to consider existing practices for intelligent negotiation re such changes. Management does not contest its authenticity, and, moreover, it contains more than mere background material. Considerable facts relative to the overtime practices and existing shifts are set forth which will have a bearing on proposals and counterproposals during negotiating sessions. See Commander Naval Air Pacific, supra. Further, the absence of a pending or potential grievance re overtime does not call for a conclusion that the information was not needed. There is no requirement that the information requested under section 7114(b)(4) of the Statute be used in a grievance. See National Labor Relations Board, 38 FLRA 506.
The foregoing persuades me that the data requested by the Union, i.e., the "Long Report," was necessary in the Union to fulfill its representational duties in regard to the negotiations concerning the impact and implementation of Respondent's proposed changes in shift and overtime assignments.
An additional issue concerns the possible exemption from disclosing the "Long Report" because it contains guidance, advice, counsel or training for management officials allegedly relating to collective bargaining process - all as set forth in section 7114(b)(4)(C) of the Statute
While there is a dispute as to whether this Report does include such guidance, advice or training for Respondent's officials, I am persuaded that it did concern such items. In addition to setting forth the practices re overtime at the ports and other locations, the document contains evaluation of assignments as well as options to the procedures in use. Recommendations are made in certain instances as to overtime assignments, which is conceded by Respondent.9/
It is however, necessary to determine whether the guidance, advice or training relates to collective bargaining. If such relationship is found to exist, an exemption from disclosure may well be warranted.
In National Relations Board, 38 FLRA 506, 522-23 (1990) the Authority held that,
Section 7114(b)(4)(C) exempts from disclosure to the exclusive representatives information which contains guidance, advice, counsel, or training for management officials relating specifically to the collective bargaining process, such as: (1) courses of action agency management should take in negotiation with the union; (2) how a provision of the collective bargaining agreement should be interpreted and applied; (3) how a grievance or an unfair labor practice charge should be handled; (4) other labor-management interactions which have an impact on the union's status as the exclusive representative of the employees.10/
The survey conducted by Long, which was embodied in his Report, was begun in November - December 1989. It was initiated by Assistant Director of Inspection and Control, Ralph Muser, who was concerned as to whether local practices and procedures were in compliance with law and regulations. At this juncture Respondent had not notified the Union of any intention to change shift assignments or make adjustments to overtime. Further, negotiations re the changes were not begun until May 1991, several months after
Respondent did notify the Union of its intent to make changes. The record reflects that the overtime survey was started independent of any collective bargaining negotiations. Muser was disturbed about the increase in overtime changes and wanted a self-evaluation of the practices and procedures at the various installations. The record indicates that the "Long Report" was never intended to be used in negotiations with the Union on the impact and implementation of the changes in shift assignments or overtime usage. The Report did not involve negotiations or the collective bargaining process, nor was it relied upon in order to bargain over such changes. These factors impel me to conclude that the document was, as the record reflects, distinct and separate from the bargaining process.11/ Thus, I conclude the "Long Report" did not constitute guidance, advice, counsel or training relating to collective bargaining so as to be exempt from disclosure.
Note is taken of the recent case, N.L.R.B. v. Federal Labor Relations Board, 952 F.2d 523 (D.C. Circuit 1992) in which Judge Edwards stated that the FLRA erred in failing to recognize that "necessary" is not the same as "relevant". Further, that where information is sought under section 7114(b)(4)(B), there must be a particularized showing of need for information on guidance, advice, counsel, or training for management officials if such information is not otherwise exempt under subsection (b)(4)(c). The Court concluded that it was not shown that a particularized need existed for the document at issue; that the Authority's argument for disclosure was conclusionary; and that neither the administrative law judge nor the Authority found that the requested recommendations were required by the parties' bargaining agreement as their established practices. Accordingly, the case was remanded to the Authority to decide whether the information was "necessary" under section 7114(b)(4)(B).
As heretofore indicated, the case law as established by the Authority requires that an agency disclose information deemed necessary for a union to fulfill its representational functions. If the data is not otherwise exempt from disclosure under section 7114(b)(4)(c) - as is true herein - the Authority has determined whether the data would be necessary for the union to perform its duties. No burden has been imposed upon a union to establish a "particularized need" in order to obtain the information. Since the Authority has not overturned its holdings in this regard. I am constrained to follow past decisioned law in the public sector. Accordingly despite the absence of any evidence adduced by the Union as to such particular need. I conclude that the record does warrant the conclusion that the information was necessary for the union to fulfill its functions as the representative of the unit employees.
On the basis of the foregoing, I conclude that the "Long Report" was necessary under section 7114(b)(4)(B) for the Union to bargain re the impact and implementation of the proposed changes by Respondent in shift changes and overtime; that Respondent was required by section 7114(b)(4) to furnish the "Long Report" and its failure to do so violated section 7116(a)(1)(5) and (8) of the Statute.The Regional Implementation Plan (Action Plan)
General Counsel deems this document to be "necessary" under section 7114(b)(4) in like manner as the "Long Report" heretofore mentioned. I disagree. This Plan sets forth specific instructions and actions to be taken by management officials with respect to overtime management. It does not, as was true in the "Long Report," include data or information which the Union could consider in its negotiations with Respondent concerning the changes in shift assignments or overtime. It is clearly an intra-management document outlining action to be taken by Headquarters and the various Regional Commissioners and District Directors.
The Action Plan contains no information that will enable the union to bargain on the impact and implementation of the changes which were to be made by Respondent. The data included in the Action Plan was not necessary for the Union to prepare for any negotiations regarding such changes since no information therein pertains to shift changes or overtime details and practices. There is an insufficient link between the representational duties or needs of the Union and the bargaining to be conducted on the shift assignments and overtime modifications. Accordingly, I conclude Respondent did not fail to comply with section 7114(b)(4) of the Statute, nor violate section 7116(a)(1)(5) and (8) thereof, by failing and refusing to furnish the Union with the Regional Implementation, or Action Plan.
Based on the foregoing findings and conclusions, it is recommended that the Authority issue the following Order:
Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Statute, it is hereby ordered that the U.S. Customs Service, Region IV, Miami, Florida, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the National Treasury Employees Union, the exclusive representative of certain of its employees, a copy of the "Long Report" that was requested on or about February 28, 1991.
(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) Furnish the National Treasury Employees Union, the exclusive representative of certain of its employees, a copy of the "Long Report."
(b) Post at its facilities in Miami, Florida, copies of the attached notice or forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Regional Commissioner, Southeast Region, Miami, Florida, and shall be posted in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted, and shall be maintained for 60 consecutive days thereafter. Reasonable steps shall be taken to ensure that such notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.20 of the Authority's Rules and Regulations, notify the Regional Director,
Region IV, Federal Labor Relations Authority, in writing, within 30 days from the data of this Order, as to what steps have been taken to comply herewith.
Issued, Washington, DC, July 22, 1992
Administrative Law Judge
WE WILL NOT refuse to furnish, upon request of the National Treasury Employees Union, the exclusive representative of certain of our employees, a copy of the "Long Report" that was requested on or about February 28, 1991.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL furnish the National Treasury Employees Union, the exclusive representative of certain of its employees, a copy of the "Long Report."
This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.
If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Atlanta Regional Office, whose address is: 1371 Peachtree Street, NE, Suite 122, Atlanta, GA 30367, and whose telephone number is: (404) 347-2324.
1/ NTEU and Chapter 137 will both be designated at times as the Union.
2/ The Complaint fails to specify the year when the request was made. Note is taken that Respondent's Answer alleges that on August 20, 1991 Grant requested information relating to the assignment of overtime.
3/ Supervisory Customs Inspector.4/ Record facts show that because of the comprehensiveness of the reporting requirements of the Blue Ribbon Panel, as initiated by Headquarters, the "Long Report" was held in abeyance. The "Long Report" was given to Muser and Director Knapik only and not utilized for collective bargaining.
5/ As understood by both parties, this item refers to the Regional Implementation Plan which is hereinafter described.
6/ Both the "Long Report" and the Regional Implementation Plan, although not furnished to the Union, were made available at the hearing for inspection by the General Counsel. They were marked as Joint Exhibits 1 and 2 and submitted under seal for an in camera inspection and to be submitted to the Authority.
7/ At the hearing the General Counsel stated that the "Long Report" and the Regional Implementation Plan (Action Plan) were the two documents which the Union contends it sought and were not furnished by Respondent.
8/ Respondent conceded at the hearing that the data requested herein is normally maintained in the regular course of business and is reasonably available. It also admitted in the Answer that the disclosure is not prohibited by law.
9/ Respondent maintains the Report is predecisional, made by a supervisor with no decision-making authority, and does not contain agency policies or guidelines. This does not, in my opinion, militate against finding it constitutes guidance or counsel for management officials. It was conducted upon direction of management and accepted as reliable report of overtime procedures and practices.
10/ The Authority followed this holding in Department of Justice, U.S. Immigration and Naturalization Service, U.S. Border Patrol, Dallas, Texas, 41 FLRA 137 (1991).
11/ In National Labor Relations Board, 38 FLRA 506, 522, the Authority concluded that section 7114(b)(4)(C)exempts from disclosure guidance, advice, counsel, or training for management officials relating specifically