49:0061(11)CA - - HHS, Washington, DC and NTEU - - 1994 FLRAdec CA - - v49 p61

[ v49 p61 ]
The decision of the Authority follows:

49 FLRA No. 11









(Charging Party/Union)




February 8, 1994


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

I. Statement of the Case

This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The General Counsel and the Respondent filed briefs.

The complaint alleges that the Respondent violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to furnish the Union with certain information requested under section 7114(b)(4) of the Statute. For the reasons stated below, we find that the Respondent did not commit the unfair labor practice as alleged.

II. Facts

The Union is the exclusive representative of a nationwide, consolidated bargaining unit of certain employees of the Department of Health and Human Services (Agency or Respondent), including those of Respondent's Region IX in San Francisco. The Office of Civil Rights, Region IX is headed by a Regional Manager who reports to the Agency's Office of Civil Rights in Washington, D.C. Prior to a reorganization that occurred in about March 1991, there were two functionally separate divisions in the Office of Civil Rights, Region IX. They were the Investigations Division and the Voluntary Compliance Outreach Division. According to the parties' stipulation of facts, each division consisted of two branches, each headed by a branch chief, and had several bargaining unit Equal Opportunity Specialist positions.(2) Prior to the reorganization, the position descriptions of the Equal Opportunity Specialist positions assigned to the two divisions were not the same and reflected the differing functions of the two divisions.

As a result of the reorganization of the Office of Civil Rights, Region IX, a new position of Deputy Regional Manager was established and the two divisions and their division director positions were eliminated. The functions of the two divisions were merged and distributed among three branches. New position descriptions, which combined both the investigative and voluntary compliance outreach functions, were issued to the Equal Opportunity Specialists.

On April 1, 1991, Rob Montague, a representative of the Union, filed an institutional grievance at step three of the parties' negotiated grievance procedure concerning that reorganization. The grievance asserted that: (1) the reorganization had not been authorized by the Office of Civil Rights Headquarters; (2) the Regional Manager, Virginia Apodaca, had misrepresented to the Union that she had been instructed by headquarters to reorganize the regional office and, thus, had engaged in bad faith bargaining; and (3) the reorganization was an attempt to avoid implementing a mediated settlement agreement reached in conjunction with the grievance of a bargaining unit employee who was employed at the Office of Civil Rights, Region IX. As remedies, the Union requested: (1) rescission of the reorganization; (2) restoration of the status quo ante; (3) rescission of any disciplinary or adverse actions against bargaining unit employees that arose out of the reorganization; (4) appropriate administrative and/or disciplinary action against the Regional Manager; (5) posting of a statement that future reassignments or reclassifications of employees would comply with specified contractual provisions; and (6) any other appropriate remedies.

By letter dated April 8, 1991, Montague requested certain information in order to process the grievance. Among other things, Montague requested "the report of the management audit of Region IX conducted by a team headed by Ms. Pam Malester in or around August 1990[.]" Exhibit 5. In response to the request, the Agency provided certain information but did not include a copy of that particular report. On August 6, 1991, Richard K. Waterman, an Agency representative, provided a step three decision on the grievance. In his decision, Waterman noted that the December 28, 1990, Report of the Operational Review of the Office of Civil Rights, Region IX that had been conducted in August of 1990 (the Report) had recommended that the office be reorganized. In this regard, Waterman stated:

The Review noted that the Regional Office had an Investigations Division (which contained two branches), and a Voluntary Compliance and Outreach (VCO) Division (containing one branch), but that the Equal Opportunity Specialists (EOSs) in the Investigations branches did "a few compliance reviews" and "some limited voluntary compliance and outreach activities," while the EOSs in the VCO Division did "some complaint investigations." Indeed, the Director of the Investigations Division, who was at that time also the Acting Director of the VCO Division, was quoted as saying, "Every branch is now doing all types of cases. In reality there is no difference between the branches. The office is really one big division." The "Recommendations" section of the Review report later stated:

Based on a preliminary assessment of the information collected, the following recommendations are made to assist in improving case management.

o The regional office should be reorganized, eliminating all Divisions. A Deputy Regional Manager position should be created. The branches should be equal in size and should be responsible for all types of cases.

Exhibit 7 at 2.

Although the Report had recommended the reorganization that subsequently occurred, Waterman nevertheless concluded that the reorganization had not been properly authorized, as required by the Agency's General Administration Manual, and, therefore, was not "legally in effect." Exhibit 7 at 7. However, Waterman found that retroactive approval of the reorganization was not prohibited. Based on the likelihood that retroactive approval could be obtained, Waterman stated that he would not order any immediate actions to rescind the reorganization but would allow a 60-day period to afford the Office of Civil Rights, Region IX an opportunity to obtain formal approval of the reorganization. If such approval was not obtained in that period, Waterman stated that "all actions needed to negate the restructuring must be undertaken and completed as soon as practicable."(3) Id. at 8.

In rejecting the Union's request that administrative and/or disciplinary action be taken against the Regional Manager, Waterman stated that the Regional Manager had "reasonably interpreted the quoted sections of the Operational Review report as a directive from her headquarters to restructure the regional office." Id.

The Union invoked arbitration on the grievance on August 23, 1991.

The Report quoted and referred to by Waterman was the same report that the Union had previously requested a copy of and had not received. Upon receipt of the grievance decision, Montague contacted Waterman and reiterated his request for a copy of the Report. Waterman responded that he had received only excerpts of the Report and provided the Union with a copy of those excerpts on August 7, 1991.(4) Montague then wrote to Judith Scherr, the Labor Relations Officer of Region IX, and requested a copy of the "entire report[.]" Exhibit 9 at 1 (emphasis in original). By letters dated September 11, 1991, and January 17, 1992, Scherr advised Montague that a copy of the Report had been requested from the Office of Civil Rights Headquarters and would be provided to him when it was received. The Union was never provided with a copy of the complete Report.

The entire Operational Review Report along with attachments was submitted as an in camera exhibit and all parties agreed that the Report would not be disclosed by the General Counsel to the Union or to its counsel.

III. Positions of the Parties

A. The General Counsel

As a preliminary matter, the General Counsel acknowledges that, while the entire Report along with its attachments was submitted as an in camera exhibit, it is the General Counsel's position that the Union is entitled to the Report only and not to the attachments.(5)

The General Counsel states that the grievance filed by the Union challenged the legality of the reorganization and its implementation, and argues that the Report, which was prepared after full review of the operation of the Office of Civil Rights, Region IX and "admittedly recommended the very restructuring of the office which the [Union] contends was improper, would be useful to the [U]nion in its investigation and/or presentation of its grievance." General Counsel's Brief at 8. The General Counsel contends that, at a minimum, the Union needed to review the Report itself to determine whether the decision on the grievance had interpreted and quoted the Report accurately. The General Counsel also asserts that the Union was entitled to review the Report in order to understand the basis for the changes in office structure that occurred and to assess its position to determine whether to pursue arbitration on the grievance. The General Counsel maintains that information in the report would assist the Union in deciding what remedy to seek and in formulating arguments that it could make before an arbitrator. The General Counsel argues that, apart from the grievance, the Union has a right to understand the basis for the reorganization in order to fulfill its general representational responsibilities to the bargaining unit.

The General Counsel contends that the Report does not constitute guidance, advice, counsel, or training within the meaning of section 7114(b)(4)(C) of the Statute. In this regard, the General Counsel asserts that although the Report is "an intra[]management document," it does not relate specifically to the collective bargaining process. Id. at 10.

B. The Respondent

According to the Respondent, the Report resulted from a site review of the Office of Civil Rights, Region IX, conducted by a management team in August 1990, and a quality assurance case review conducted in Fiscal Year 1989. The Respondent further states that the Report addresses several areas of internal concern to management, such as management of the case processing function, case review, and certain areas of internal administrative control. The Respondent contends that the Report is entirely pre-decisional and deliberative in nature, reporting findings and making recommendations to higher-level management, but containing no decisions or directives. The Respondent asserts that the Report is exempt from disclosure under section 7114(b)(4)(B) and (C) of the Statute.

Insofar as section 7114(b)(4)(C) of the Statute is concerned, the Respondent contends that the Report involves guidance, advice, counsel, and training concerning the collective bargaining process. In particular, the Respondent asserts that portions of the Report contain discussions and/or recommendations relating to employee morale, management-staff relationships, union involvement in performance management; employee removals and separations, minority employees and the workplace, official time of union officials, grievances and arbitrations, employee reactions to institution of an awards program, and training of management and staff to resolve problems in these areas.

As to section 7114(b)(4)(B) of the Statute, the Respondent contends that the information sought is not necessary within the meaning of that section. Citing National Labor Relations Board v. FLRA, 952 F.2d 523 (D.C. Cir. 1992) (NLRB v. FLRA), the Respondent argues that the fact that the Report contains guidance, advice, counsel, and training is also significant to a determination of whether it is disclosable under section 7114(b)(4)(B) of the Statute. The Respondent contends that, under that decision, in order to obtain such data a union must have a particularized need for the information. The Respondent asserts that no such need exists for the entire Report. In this regard, the Respondent maintains that: (1) the focus of the request was the Union's grievance challenging the reorganization of the Office of Civil Rights, Region IX; (2) the Union was given the only portions of the Report that related to that reorganization; and (3) the remaining portions of the Report are irrelevant to the grievance underlying the Union's information request. Additionally, the Respondent asserts that under NLRB v. FLRA the Authority must consider countervailing interests against disclosure. The Respondent argues that, on balance, its strong interest in maintaining the confidentiality of the sensitive information contained in the Report outweighs the Union's need for it. In particular, the Respondent states that the findings and recommendations in the Report rely on information that was obtained during confidential interviews with employees and supervisors and that the ability to obtain such information or the forthright and candid cooperation by such individuals in the conduct of management reviews in the future would be compromised by disclosure.

Finally, the Respondent contends that the fact that the substantive aspect of the grievance is moot because the deciding official upheld the Union's challenge to the reorganization weighs against disclosure. In sum, the Respondent contends that the Union's need for the remaining portions of the Report are minimal and are clearly outweighed by the countervailing interests against disclosure.

IV. Analysis and Conclusions

We have examined the Report, which was submitted to the Authority in camera. It is composed of a two-page table of contents and 27 additional pages. The body of the Report consists of sections entitled: preface, summary, methodology, findings/conclusions, and recommendations. The preface consists of one page stating the purpose of the Report and providing an overview of its composition. The summary section consists of one page and contains a brief statement of highlights of the Report. The three-page methodology section describes the process and procedures used in the review that generated the Report. The findings/conclusions section consists of 19 pages and essentially provides an assessment of the management and operation of the office. Finally, the four-page recommendations section makes specific recommendations designed to assist the region in improving its management and operations. The portions of the Report that concern the reorganization of the office appear at the beginning of the findings/conclusions section and the recommendations section.

Initially, we reject the Respondent's claim that the Report constitutes guidance, advice, counsel, or training relating to collective bargaining within the meaning of section 7114(b)(4)(C) of the Statute. In National Labor Relations Board, 38 FLRA 506, 522-23 (1990), affirmed in relevant part, 952 F.2d 523, we held that:

[S]ection 7114(b)(4)(C) exempts from disclosure to the exclusive representative 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 negotiations 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; and (4) other labor-management interactions which have an impact on the union's status as the exclusive bargaining representative of the employees.

38 FLRA at 522-23. We further stated that section 7114(b)(4)(C):

[D]oes not exempt from disclosure guidance, advice, or counsel to management officials concerning the conditions of employment of a bargaining unit employee, for example: the personnel, policies and practices and other matters affecting the employee's working conditions, that are not specifically related to the collective bargaining process.

Id. at 523.

In affirming our decision in this regard, the U.S. Court of Appeals for the District of Columbia Circuit described the Authority as adopting a distinction, which it deemed wholly reasonable, between "nonstrategic and strategic information: information about the subject of collective bargaining versus information about the bargaining itself." NLRB v. FLRA, 952 F.2d at 530-31. The Respondent cites various portions of the Report that provide observations and commentary about relations between management on the one hand and employees and/or the Union on the other to support its contention that the Report comes within the ambit of section 7114(b)(4)(C) of the Statute. We find that the specific portions of the Report on which the Respondent relies concern, in many instances, personnel policies and practices and other matters affecting employees' working conditions that are not specifically related to the collective bargaining process. In some other instances, while the information discusses the collective bargaining relationship, it does not concern matters that directly relate to the bargaining process. That is, it does not address courses of action agency management should take with respect to negotiations, the interpretation and application of a collective bargaining agreement, or the handling of grievances or unfair labor practices. None of the information cited is strategic information concerning the bargaining process. Thus, while the Report may constitute guidance, advice, counsel, or training in a broad sense, it does not constitute guidance, advice, counsel, or training within the established meaning of section 7114(b)(4)(C) of the Statute.

Now we turn to the Respondent's claim that the Report is not disclosable under section 7114(b)(4)(B) of the Statute. Recently, the Authority issued its decision in National Park Service, National Capital Region, United States Park Police, 48 FLRA 1151 (1993) (Member Talkin concurring and dissenting in relevant part) (National Park Service). In that case the Authority adopted the standard set forth in NLRB v. FLRA for determining when a union has demonstrated a sufficient need for information involving managerial guidance, advice, counsel, or training to require disclosure of that information under section 7114(b)(4)(B) of the Statute. The court, and the Authority, require a union to establish a particularized need for such information. An assessment of that need involves a weighing of the union's asserted need with the "countervailing interests" raised by the agency against disclosure. 952 F.2d at 531-32. To aid in this inquiry, the court stated that a union might establish such a need "where the union has a grievable complaint covering the information." Id. at 532 (emphasis omitted). As an example of such a demonstration, the court posited a situation where a statute or a bargaining agreement "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." Id. at 532-33. The court stated that information might also be disclosable "when the disputed document creates a grievable action." Id. at 533. With regard to the latter example, the court stated that there would be a "strong and valid claim to disclosure" if "the parties' agreement or existing practices make it clear" that requested predecisional materials are used "to determine subsequent disciplinary action . . . ." Id. at 533.

The General Counsel concedes that the requested information is "an intra[]management document." General Counsel's Brief at 10. In light of the nature of the requested information, we will analyze this case under the framework established in NLRB v. FLRA and adopted in National Park Service. For the reasons that follow, we conclude that the General Counsel has not established that the Union demonstrated a particularized need for the entire Report.

A union requesting information under section 7114(b)(4) of the Statute bears the burden of demonstrating that the information is necessary for the performance of its representational duties. See, for example, American Federation of Government Employees, AFL-CIO v. FLRA, 811 F.2d 769, 774-75 (2d Cir. 1987) (AFGE v. FLRA); U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 37 FLRA 1310, 1322 (1990). The necessity for the information must be evident at the time of the union's request and the agency action that is the subject of the unfair labor practice proceeding. See Commander Naval Air Pacific, San Diego, California and Naval Air Station Whidbey Island, Oak Harbor, Washington, 41 FLRA 662, 669 (1991) ("we evaluate the necessity for the requested information in light of the reasons expressed in the Union's request[]").

In this case, in its written requests for the Report, the Union stated only that it needed the Report in order to process its grievance concerning the reorganization of the Office of Civil Rights, Region IX. Exhibits 5 and 9. The record does not establish that the Union ever provided any other reason for its request. In fact, the parties have stipulated that the Union's reasons for requesting a complete copy of the Report are those set forth in the written requests that are submitted as Exhibits 5 and 9. Thus, we reject the General Counsel's claim that there was a basis "[a]part from the grievance" that established the Union's need for the Report. General Counsel's Brief at 8-9. Accordingly, our inquiry into whether the Union was entitled to the Report is limited to the issue of whether the grievance established the Union's need for the Report sufficient to meet the requirements of section 7114(b)(4)(B) of the Statute. Insofar as the grievance is concerned, the General Counsel argues, essentially, that the Union needed the entire report to determine whether the grievance decision interpreted and quoted the Report accurately, to understand the basis for the changes in the office structure, and to formulate strategy with respect to pursuing the grievance.

Based on our in camera review of the Report, we conclude that the Respondent provided the Union with the only portions of the Report that contain essential information concerning the reorganization that was the subject of the Union's grievance. As mentioned earlier, the discussion of the organization of the office and the recommendation that it be reorganized appear at the outset of the sections in which they appear. The commentary and recommendations contained in the Report on that subject are confined to those subsections and they neither refer to the remaining subsections of the report nor do the remaining subsections contain any reference to them.

We further conclude that the Union has not established that it has a grievable complaint covering the remainder of the Report so as to require disclosure of the entire document. Moreover, based on our review of the Report, we find that the undisclosed portions of the Report fit neither of the examples set forth by the court in NLRB v. FLRA for demonstrating particularized need for intramanagement documents. In such circumstances, the court counsels that section 7114(b)(4) "normally will not require disclosure." Id. at 533. No other basis on which to find that the Union has demonstrated a particularized need for the Report is asserted.(6) Thus, we conclude that the entire Report is not necessary, within the meaning of section 7114(b)(4) of the Statute, and that Respondent's failure to furnish the entire Report to the Union did not violate the Statute.(7) Therefore, we will dismiss the complaint in this case.(8)

V. Order

The complaint is dismissed.

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

1. Member Talkin's concurring opinion is set forth at footnote 8.

2. Some of the exhibits submitted with the stipulation indicate that, in fact, while the Investigations Division was composed of two branches, the Voluntary Compliance Outreach Division had only one branch. Exhibits 7 and 8. However, this apparent discrepancy of fact is not significant to the resolution of this case.

3. Although not included in the stipulation, it is a matter of public record that the reorganization was subsequently approved. See 56 Fed. Reg. 56230 (Nov. 1, 1991).

4. The Union was provided with three pages. The first is a cover memorandum with a subject line "Operational Review Report for FY 90 - Region IX" and contains one paragraph of text. The second, paginated "6," is a portion of a findings/conclusions section containing 5 paragraphs of material headed "Organization of the Office." The third, paginated "25," is a portion of a recommendations section and contains a preface and a block-indented, three sentence recommendation. Exhibit 8.

5. The Respondent raises the Privacy Act as a bar to disclosure only if the Union is requesting the attachments to the Report. In view of the General Counsel's agreement that the Union is not entitled to disclosure of those attachments, the applicability of the Privacy Act is not an issue in the case before us.

6. We note that the court in NLRB v. FLRA set forth examples of particularized need when the requested information concerns intramanagement guidance, advice, counsel, or training. As no other basis on which to find that the Union demonstrated a particularized need for the Report is presented in this case, we need not address what bases other than the two examples offered by the court might support such finding.

7. As noted, the Respondent provided the Union with portions of the Report. The issue of whether there was a legal requirement to disclose those portions under section 7114(b)(4)(B) of the Statute is not before us.

8. Member Talkin agrees with her colleagues that the subject of the reorganization of the Office of Civil Rights, Region IX was confined to the described subsections of the Report, and that, consequently, the record does not provide a basis for concluding that the complete Report could influence or affect the Union's choice or pursuit of a course of a