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32:0305(46)CA - - NLRB and NLRBU Local 6 - - 1988 FLRAdec CA - - v32 p305

[ v32 p305 ]
The decision of the Authority follows:

32 FLRA No. 46





Charging Party

Case No. 2-CA-50471
(26 FLRA 108)


I. Statement of the Case

This case is before the Authority pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit in National Labor Relations Board Union, Local 6 v. FLRA, 842 F.2d 483 (D.C. Cir. 1988) (NLRBU Local 6).

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 Charging Party (the Union) with a document which is necessary for it to represent a bargaining unit employee in a grievance. For the following reasons, we have decided to remand this case for findings of fact and consideration by an Authority Administrative Law Judge (ALJ). Accordingly, we shall remand the case to the Regional Director, who originally transferred the case to us with a stipulated record, for appropriate action.(*)

II. Background

A. Facts

An employee in the Respondent's Pittsburgh office requested a part-time work schedule. The Pittsburgh Regional Director prepared a memorandum on the request, for use by the Respondent's Assistant General Counsel, which discussed the request in relation to the workload and operational needs of the office and recommended that the request be denied.

After review of the employee's request and the memorandum of the Pittsburgh Regional Director, the Assistant General Counsel denied the request in writing. Thereafter, in contemplation of a grievance on the employee's behalf, the Union requested the Respondent to furnish data on the workload of the Pittsburgh office, and a copy of the Pittsburgh Regional Director's memorandum.

The Respondent furnished the workload data, but refused to furnish the memorandum. The Union grieved the denial of the employee's request for part-time employment, on behalf of the employee, and renewed its request for the memorandum. The Respondent continued to refuse to furnish the memorandum.

B. Authority's Decision

In our decision, National Labor Relations Board, 26 FLRA 108 (1987), we concluded that the Respondent had not failed to comply with section 7114(b)(4). Rather, we concluded that disclosure of the memorandum to the Union was prohibited by section 7106 because it would improperly interject the Union into management's internal deliberative process concerning the exercise of management's right to assign work under section 7106(a)(2)(B).

C. Court's Decision

In NLRBU Local 6 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). The court remanded the case to us for consideration of whether the memorandum is nondisclosable on other grounds argued by the Respondent under section 7114(b)(4).

III. Analysis and Conclusion

Consistent with the court's decision, we must determine whether the document sought by the Union is "necessary" within the meaning of section 7114(b)(4)(B), and/or whether it constitutes "guidance, advice, counsel, or training . . . relating to collective bargaining" under section 7114(b)(4)(C).

In our view, the stipulated record does not provide us with sufficient evidence to rule on these issues. The resolution of these issues depends on facts concerning the content of the memorandum, which are not provided with the stipulation. These facts are most appropriately found by an ALJ based on hearing testimony and, if deemed necessary by the ALJ, by the examination of the memorandum in camera upon its being furnished by the Respondent. Accordingly, as provided for in section 2429.1 of the Authority's Rules and Regulations, we shall remand this case to the Regional Director for further processing.


Case No. 2-CA-50471 is remanded to the Regional Director, Region II, for action consistent with this decision.

Issued, Washington, D.C.,

Jerry L. Calhoun, Chairman
Jean McKee, Member

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

*/ The Union has filed a motion "to intervene and file a brief" in connection with our consideration of this case under the court's remand. Pursuant to part 2423 of the Authority's Rules and Regulations, the Union is a party to this case and is entitled to participate in the proceedings which arise in connection with our remand of the case to the Regional Director. Accordingly, we deny the Union's motion without prejudice to such participation.