26:0441(53)CA - National Park Service, National Capitol Region, Park Police and Police Association of District of Columbia -- 1987 FLRAdec CA
[ v26 p441 ]
26:0441(53)CA
The decision of the Authority follows:
26 FLRA No. 53
NATIONAL PARK SERVICE,
NATIONAL CAPITOL REGION,
UNITED STATES PARK POLICE
Respondent
and
POLICE ASSOCIATION OF THE
DISTRICT OF COLUMBIA
Charging Party
Case Nos. 3-CA-60168
3-CA-60182
3-CA-60183
3-CA-60288
DECISION AND ORDER
I. STATEMENT OF THE CASE
This consolidated unfair labor practice case is before the Authority
under section 2429.1(a) of the Authority's Rules and Regulations based
upon a stipulation of facts entered into by the Respondent, the Charging
Party (the Union), and the General Counsel. The General Counsel and the
Respondent have 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 provide
certain information the Charging Party had requested pursuant to section
7114(b)(4) of the Statute.
II. BACKGROUND
The Police Association of the District of Columbia is the exclusive
representative of a unit of employees of the United States Park Police.
In connection with the Union's processing of four grievances, each of
which had been filed on behalf of a different employee, the Union made
four requests for information. The Respondent in response to the
requests furnished all information requested with the exception of
documents or portions of documents containing recommendations,
concurrences, or opinions of supervisors or managers concerning the
disciplinary actions taken against two of the employees and concerning
the denials of the administrative leave requests of the other two
employees. The parties stipulated that the information the Respondent
failed and refused to furnish is normally maintained by the Respondent
in the regular course of business and is reasonably available within the
meanings of section 7114(b)(4) of the Statute. /*/
III. POSITIONS OF THE PARTIES
The General Counsel argues that the information which the Respondent
refused to furnish constitutes information that is necessary and
relevant to a matter within the scope of collective bargaining. The
General Counsel also argues that the information does not constitute
guidance, advice, counsel, or training of management officials or
supervisors relating to collective bargaining within the meaning of
section 7114(b)(4)(C) and that the information is not otherwise excepted
from the obligation to furnish information under the Statute. Thus, the
General Counsel contends that the Respondent's refusal to furnish the
requested data constitutes a refusal to comply with section 7114(b)(4)
as alleged in the complaint.
The Respondent argues that the information which it refused to
furnish is not necessary and relevant and constitutes guidance, advice,
or counsel within the meanings of section 7114(b)(4). The Respondent
also argues that the release of the requested information constituting
recommendations, concurrences, or opinions of supervisors or managers is
prohibited because release of this information would interfere with
management's deliberative process concerning the exercise of management
rights under section 7106(a) to take disciplinary action and assign
work.
IV. ANALYSIS AND CONCLUSIONS
We must determine in this case whether the Respondent was obligated
under section 7114(b)(4) to release copies of documents or portions of
documents containing management recommendations, concurrences, or
opinions concerning the disputed disciplinary actions and denials of
administrative leave. We conclude that release of this information
would interfere with management's deliberative process which is
prohibited by section 7106 of the Statute. Accordingly, we conclude
that release of the information is prohibited from disclosure under
section 7114(b)(4).
In National Labor Relations Board, 26 FLRA No. 13 (1987), we recently
discussed an agency's right to engage in internal discussion and
deliberation prior to making decisions under section 7106 and Authority
precedent preserving the integrity of the process by which management
reaches these decisions. Noting that the right of management officials
to engage in free and open discussions and deliberations among
themselves is an essential part of management's right to make decisions
and to take actions under section 7106, we held that release of the
recommendations of one management official to another concerning the
exercise of a management right was prohibited by section 7106 and that
the disclosure of the details of those recommendations was prohibited by
law within the meaning of section 7114(b)(4).
In this case, we find, as we did in NLRB, that the release of the
disputed information would interject the Union into and give it access
to management's internal decision-making process involving decisions to
take certain actions under section 7106. Specifically, we find that (1)
the disputed decisions to impose disciplinary action are exercises of
management's right under section 7106(a)(2)(A) to take disciplinary
action; (2) the disputed decisions to deny administrative leave are
encompassed by management's right to assign work under section
7106(a)(2)(B); and (3) the recommendations, concurrences, or opinions
of supervisors or managers concerning these decisions were part of
management's deliberative process. Based on our decision in NLRB, we
conclude that disclosure of the details of these recommendations,
concurrences, and opinions is "prohibited by law" within the meaning of
section 7114(b)(4).
Our conclusions in this case and NLRB do not mean that the disclosure
of all information concerning management actions taken under section
7106 is prohibited by law from disclosure under section 7114(b)(4). Nor
do these decisions mean that a union's right to negotiate for the
disclosure of information under section 7117 is coextensive with an
agency's obligation to furnish that information under section
7114(b)(4). The considerations are often different. For example, in
National Treasury Employees Union and Department of the Treasury, U.S.
Customs Service, 23 FLRA No. 91 (1986), we found that a proposal
concerning the release and disclosure of crediting plan and related
rating information was nonnegotiable because it conflicted with a
government-wide regulation. In contrast, in Department of the Army,
Headquarters XVIII Airborne Corps and Fort Bragg, Fort Bragg, North
Carolina, 26 FLRA No. 52 (1987), we found that the agency was obligated
under section 7114(b)(4) to furnish certain crediting plan and related
rating information in the context of grievances over disputed selection
actions. As in other cases decided under section 7114(b)(4),
case-by-case determinations are necessary. Our decisions in this case
and in NLRB only mean that an agency is not obligated under section
7114(b)(4) to furnish information which would constitute an interference
with management's deliberative process concerning the exercise of a
management right under section 7106. In other words, disclosure of
information which would interject the Union into and give it access to
management's internal decisionmaking process involving such matters is
prohibited by law from disclosure under section 7114(b)(4).
For these reasons, the Respondent did not fail to comply with section
7114(b)(4) in violation of section 7116(a)(1), (5) and (8) as alleged,
and we will dismiss the complaints. In view of our conclusion, it is
not necessary to reach the Respondent's other arguments.
V. ORDER
The complaints in Case Nos. 3-CA-60168, 3-CA-60182, 3-CA-60183, and
3-CA-60288 are dismissed.
Issued, Washington, D.C. March 31, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(*) Section 7114(b)(4) provides:
(b) the duty of an agency and an exclusive representative to
negotiate in good faith . . . 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 --
(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;
(C) which does not constitute guidance, advice, counsel, or
training provided for management officials or supervisors,
relating to collective bargaining(.)