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The decision of the Authority follows:
32 FLRA No. 38
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
WASHINGTON, D.C. AND
INTERNAL REVENUE SERVICE
NATIONAL TREASURY EMPLOYEES UNION AND
NATIONAL TREASURY EMPLOYEES UNION,
Case No. 5-CA-60265
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Charging Party (the Union). The issue is whether the Respondent violated section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by its failure to provide the Union with documents which are necessary for it to represent a bargaining unit employee in a proposed removal action.
For the following reasons, we have concluded that the Judge's order dismissing the complaint shall be vacated, and we shall remand the case to him for consideration of whether the Statute was violated as alleged.
The documents sought by the Union were related to the proposed removal of a unit employee for making false and derogatory comments about another employee. Under the parties' collective bargaining agreement, the employee had the right to present evidence prior to the Respondent's final decision. The Union sought to review documents relating to the Respondent's investigation to determine if allegations against the employee were supported and if so, whether the penalty was appropriate. Among the issues under consideration by the Union was whether to pursue the matter through binding arbitration. Union Steward Michael Peacher represented the employee and made several information requests, including those at issue here.
Peacher requested "penalty documents" created by the Respondent which included review of the facts, mitigating circumstances, and recommendations for a specific penalty. Three such documents existed: (1) one written by Mr. Novack, the employee's second line supervisor, and signed by his third line supervisor; (2) one indicating the authorship of that document; and (3) one identified as a "buck slip" indicating that the employee relations office agreed with the first document. The Novack document contained a statement of facts, discussed mitigating factors required by the negotiated agreement to be considered in determining an appropriate penalty, and gave a recommended penalty.
After the Respondent refused to provide the documents, the Union made oral and written replies to the proposed termination, and held further discussions with the Respondent. In accordance with an agreement reached with the Union, the Respondent reduced the penalty to a 15-day suspension. The Union reserved the right to reopen the case based upon any additional evidence which was subsequently secured, including the penalty documents at issue in this case.
III. Administrative Law Judge's Decision
The Judge found that this case was controlled by National Park Service, National Capitol Region, United States Park Police and Police Association of the District of Columbia, 26 FLRA 441 (1987), which issued after the hearing in this case. National Park Service, like this case, concerned, among other things, release of documents which contained recommendations about disputed disciplinary actions. The Authority decided that release of the information would interject the union into and give it access to management's internal decision-making process involving decisions to take actions under section 7106 of the Statute.
Therefore, the Authority concluded that release of the information was prohibited by law.
In the instant case, the Judge concluded that the penalty documents sought "constituted a management predecisional analysis of the penalty to be imposed in the case and as such are part of management's deliberative process." ALJ Decision at 6. He concluded that:
[T]he penalty documents in this case are clearly a recommendation arising out of management's deliberative process concerning a disputed disciplinary action or the penalty for that particular infraction. Accordingly, based on the Authority's decision in National Park Service, supra, I am compelled to find that the Respondent was not obligated under section 7114(b)(4) of the Statute to furnish the requested documents, since to do so would constitute an interference with management's deliberative process concerning the exercise of a management right under section 7106.
ALJ Decision at 7.
In view of that conclusion, the Judge found it unnecessary to decide whether the documents constitute guidance or advice provided by management officials relating to collective bargaining under section 7114(b)(4)(C) of the Statute. The Judge also declined to decide whether the documents were "necessary" for the Union to carry out its duties within the meaning of section 7114(b)(4)(B). ALJ Decision at 7 n.5.
IV. Positions of the Parties
The Union filed exceptions to the Judge's dismissal of the complaint. It argued that disclosure of the information would not interject the Union into management's deliberative process. The Union also argued that the Authority should reconsider its decision in National Park Service. Also, noting the Judge's statement in his decision that he had considered the Respondent's and the General Counsel's briefs while not mentioning the Union's brief, the Union excepted to the Judge's apparent failure to consider its brief. It attached its post-decisional brief to the Judge, and urged the Authority to consider the arguments therein. In that connection, the Union requests that the Authority consider its brief with its exceptions rather than remand the case to the Judge for that purpose.
Neither the Respondent nor the General Counsel filed exceptions to the Judge's decision. The Respondent filed an opposition to the Union's exceptions. In the opposition, the Respondent maintains that the Judge's decision is correct.
V. The Court's Decision Vacating and Remanding National Park Service
The U.S. Court of Appeals for the District of Columbia Circuit vacated and remanded the Authority's decisions in National Park Service and a companion case, National Labor Relations Board, 26 FLRA 108 (1987). 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 forbid the disclosure of data and, therefore, it does not bar the disclosure of information under section 7114(b)(4).
Consistent with the above-noted court decision, the disclosure of the documents sought is not barred under section 7114(b)(4) because they concern the "deliberative process" by which management exercises its rights under Section 7106 of the Statute. Therefore, the Judge's decision to the contrary must be vacated.
As noted above, the Judge did not reach the questions of whether the documents are "necessary" within the meaning of section 7114(b)(4)(B), or whether they constitute "guidance, advice, counsel, or training . . . relating to collective bargaining" under section 7114(b)(4)(C). We do not have the documents before us. Therefore, we will remand this case to the Judge for him to consider those issues.
Although counsel for the Respondent furnished a copy of the Novack document to one of the Respondent's witnesses to refresh his recollection, the document was neither viewed by the Judge nor placed into evidence. If, in the Judge's view, there is not sufficient evidence for him to decide whether the documents are "necessary," or whether they constitute guidance or advice, the Judge may reopen the hearing, may view the subject documents in camera upon their being furnished by the Respondent, or both. See Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 30 FLRA 127 (1987).
The Union alleged that the Judge failed to consider its brief. Although the Judge did state at one point that he had duly considered the briefs of the Respondent and the General Counsel, ALJ Decision at 2, we do not conclude from that statement that the Union's brief was not considered. Rather, the Judge cites the brief at page 7 of his decision. Moreover, the Judge addressed the concerns of the Union. Therefore, it appears that the Judge merely inadvertently neglected to include mention of the Union's brief early in his decision. In any event, no specific prejudice was either alleged by the Union, nor appears upon analysis of the Union's brief and the Judge's decision. Furthermore, the briefs of the parties continue to be before the Judge for his consideration on remand.
The complaint in this case is remanded for action consistent with our decision.
Issued, Washington, D.C.,
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
(If blank, the decision does not have footnotes.)