National Labor Relations Board Union (Union) and General Counsel of the National Labor Relations Board (Agency)

 5 FLRA No. 95
 
 NATIONAL LABOR RELATIONS BOARD UNION
 Union
 
 and
 
 GENERAL COUNSEL OF THE NATIONAL
 LABOR RELATIONS BOARD
 Agency
 
                                            Case No. 0-NG-188
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    THIS PETITION FOR REVIEW COMES BEFORE THE FEDERAL LABOR RELATIONS
 AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5
 U.S.C. 7101 ET SEQ.).  THE ISSUE PRESENTED IS THE NEGOTIABILITY OF THE
 FOLLOWING UNION PROPOSAL.
 
    III.  PHOTOCOPYING OF CASE FILE MATERIALS
 
    A.  THE AGENCY AGREES THAT EMPLOYEES AND UNION OFFICIALS WILL BE
 PERMITTED TO PHOTOCOPY
 
    CASE FILE MATERIAL FOR THE PURPOSE OF GRIEVANCE PROCESSING UP TO AND
 INCLUDING
 
    ARBITRATION.  EMPLOYEES AND UNION OFFICIALS WILL ONLY PHOTOCOPY SUCH
 CASE FILE MATERIAL AS IS
 
    RELEVANT AND NECESSARY TO GRIEVANCE PROCESSING UP TO AND INCLUDING
 ARBITRATION.
 
    B. NO EMPLOYEE OR UNION OFFICIAL, HOWEVER, WILL DISCLOSE CASE FILE
 MATERIAL TO ANY
 
    NON-EMPLOYEE EXCEPT AFTER FIRST COMPLYING WITH SECTION 102.118 OF THE
 BOARD'S RULES IN THE
 
    MANNER DESCRIBED IN THIS SUPPLEMENTAL AGREEMENT.
 
    C.  ALL EMPLOYEES AND UNION OFFICIALS WILL HANDLE ALL CASE FILE
 MATERIAL WITH THE HIGHEST
 
    STANDARD OF CARE TO ASSURE THAT THERE WILL BE NO DISCLOSURE TO
 NON-EMPLOYEES.
 
    D.  UPON REQUEST BASED UPON REASONABLE GROUNDS, AND IN ORDER TO
 ASSURE THAT EMPLOYEES AND
 
    UNION OFFICIALS ARE COMPLYING WITH THE FOREGOING PROVISIONS OF THIS
 SECTION, THE AGENCY MAY
 
    FROM TIME TO TIME, REQUIRE AN ACCOUNTING OF THE CASE FILE MATERIAL
 PHOTOCOPIES.  /1/
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE DISPUTED PORTIONS OF THE UNION'S PROPOSAL
 ARE INCONSISTENT WITH THE AGENCY'S AUTHORITY UNDER SECTION 7106(A)(1) OF
 THE STATUTE TO DETERMINE ITS INTERNAL SECURITY PRACTICES, AS ALLEGED BY
 THE AGENCY. /2/
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE DISPUTED PORTIONS OF THE UNION'S PROPOSAL
 WOULD LIMIT THE AGENCY IN DETERMINING ITS INTERNAL SECURITY PRACTICES
 UNDER SECTION 7106(A)(1) OF THE STATUTE WITH RESPECT TO THE AGENCY'S
 INVESTIGATIVE FILES.  THEREFORE, THE PROPOSAL IS NOT WITHIN THE DUTY TO
 BARGAIN. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
 RULES AND REGULATIONS (5 CFR 2424.10, AS AMENDED BY 45 F.R. 48575), IT
 IS ORDERED THAT THE UNION'S PETITION FOR REVIEW BE, AND IT HEREBY IS,
 DISMISSED.
 
    REASONS:  THE PARTIES DO NOT DISPUTE THAT THE CASE FILE MATERIALS
 WHICH ARE THE SUBJECT OF THE PROPOSAL HEREIN ARE AGENCY INVESTIGATIVE
 RECORDS USED IN THE COURSE OF INVESTIGATING AND PROSECUTING UNFAIR LABOR
 PRACTICE CASES UNDER THE NATIONAL LABOR RELATIONS ACT AND THAT SUCH
 RECORDS MAY INCLUDE MATERIAL, SUCH AS AFFIDAVITS, FINANCIAL DATA, AND
 INVESTIGATORY MATERIAL WHICH IS PRIVILEGED AND CONFIDENTIAL IN NATURE.
 MANAGEMENT'S DETERMINATION OF THE INTERNAL SECURITY PRACTICES UNDER
 SECTION 7106(A)(1) OF THE STATUTE INCLUDES THE RIGHT TO PREVENT
 UNAUTHORIZED DISCLOSURE OF THE AGENCY'S INVESTIGATIVE FILES BY
 RESTRICTING ACCESS TO THOSE FILES.  AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 15 AND DEPARTMENT OF TREASURY, INTERNAL
 REVENUE SERVICE, NORTH ATLANTIC REGION, 2 FLRA NO. 109(1980).
 NEVERTHELESS, THE EXPRESS LANGUAGE OF PARAGRAPH A OF THE UNION'S
 PROPOSAL WOULD REQUIRE THE AGENCY TO GRANT EMPLOYEES AND UNION OFFICIALS
 UNQUESTIONED ACCESS TO SUCH MATERIAL.  ACCORDINGLY, IT INTERFERES WITH
 THE AGENCY'S AUTHORITY UNDER SECTION 7106(A)(1) TO DETERMINE THE
 INTERNAL SECURITY PRACTICES OF THE AGENCY.
 
    PARAGRAPH D OF THE UNION'S PROPOSAL, WHICH WOULD PERMIT THE AGENCY TO
 REQUIRE AN ACCOUNTING OF CASE FILE MATERIAL PHOTOCOPIED BY EMPLOYEES AND
 UNION OFFICIALS "(U)PON REQUEST BASED UPON REASONABLE GROUNDS . . ." AND
 "FROM TIME TO TIME", ALSO WOULD INTERFERE WITH THE AGENCY'S STATUTORY
 AUTHORITY TO DETERMINE ITS INTERNAL SECURITY PRACTICES.  THE AGENCY
 WOULD STILL BE PRECLUDED, FOR EXAMPLE, FROM DETERMINING IN ADVANCE THAT
 A PARTICULAR FILE CONTAINED PRIVILEGED AND CONFIDENTIAL MATERIAL AND
 THUS SHOULD BE "SANITIZED" BEFORE FURNISHING IT TO EMPLOYEES AND UNION
 OFFICIALS FOR USE IN GRIEVANCE PROCESSING.  THE AGENCY COULD ONLY SEEK
 TO PREVENT UNWARRANTED DISCLOSURE OF SUCH MATERIAL AFTER EMPLOYEES OR
 UNION OFFICIALS MIGHT HAVE PHOTOCOPIED IT.
 
    IN SUM, THE DISPUTED PORTIONS OF THE UNION'S PROPOSAL WOULD GRANT
 EMPLOYEES AND UNION OFFICIALS ESSENTIALLY AN UNCONTROLLED RIGHT UNDER
 THE CONTRACT TO PHOTOCOPY AGENCY INVESTIGATIVE FILES CONTAINING
 PRIVILEGED AND CONFIDENTIAL MATERIALS.  SUCH A PROPOSAL WOULD DENY THE
 AGENCY'S AUTHORITY UNDER SECTION 7106(A)(1) OF THE STATUTE TO DETERMINE
 ITS INTERNAL SECURITY PRACTICES.  IT IS IMPORTANT TO NOTE, HOWEVER, THAT
 THE AGENCY HAS A DUTY TO PROVIDE THE UNION UPON REQUEST WITH DOCUMENTS
 CONTAINED IN THE INVESTIGATIVE FILES TO WHICH THE UNION IS ENTITLED
 UNDER LAW.  THE AGENCY CONCEDES THIS.  IT IS FURTHER EMPHASIZED THAT
 THIS DECISION SHOULD NOT BE CONSTRUED AS AFFECTING THE UNION'S RIGHT TO
 OBTAIN INFORMATION, UPON REQUEST, NECESSARY TO CARRYING OUT ITS
 REPRESENTATIONAL FUNCTIONS IN ACCORDANCE WITH SECTION 7114(B) OF THE
 STATUTE.  /3/
 
    ISSUED, WASHINGTON, D.C., MAY 28, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ ONLY THE UNDERSCORED PORTIONS OF THE UNION'S PROPOSAL ARE IN
 DISPUTE.
 
    /2/ SECTION 7106(A)(1) OF THE STATUTE PROVIDES, IN PERTINENT PART, AS
 FOLLOWS:
 
    SEC. 7106. MANAGEMENT RIGHTS
 
    (A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
 CHAPTER SHALL AFFECT THE AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY
 AGENCY--
 
    (1) TO DETERMINE THE . . . INTERNAL SECURITY PRACTICES OF THE
 AGENCY(.)
 
    /3/ SECTION 7114(B) OF THE STATUTE PROVIDES, IN PERTINENT PART, AS
 FOLLOWS:
 
    SEC. 7114. REPRESENTATION RIGHTS AND DUTIES
 
    (B) THE DUTY OF AN AGENCY AND AN EXCLUSIVE REPRESENTATIVE TO
 NEGOTIATE IN GOOD FAITH UNDER SUBSECTION (A) OF THIS SECTION SHALL
 INCLUDE THE OBLIGATION--
 
   .          .          .          .
 
 
    (4) IN THE CASE OF AN AGENCY, TO FURNISH TO THE EXCLUSIVE
 REPRESENTATIVE INVOLVED, OR ITS AUTHORIZED REPRESENTATIVE, UPON REQUEST
 AND, TO THE EXTENT NOT PROHIBITED BY LAW, DATA--
 
   .          .          .          .
 
 
    (B) WHICH IS REASONABLY AVAILABLE AND NECESSARY FOR FULL AND PROPER
 DISCUSSION,
 
    UNDERSTANDING, AND NEGOTIATION OF SUBJECTS WITHIN THE SCOPE OF
 COLLECTIVE BARGAINING(.)