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49:0077(13)CA - - Army Armament Research Development and Engineering Center, Picatinny Arsenal, NJ and Army Civilian Personnel and Evaluation Agency, Arlington, Virginia and NFFE, Local 1437 - - 1994 FLRAdec CA - - v49 p77

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[ v49 p77 ]
The decision of the Authority follows:

49 FLRA No. 13
















(Charging Party/Union)





February 10, 1994


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

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by Respondent U.S. Department of the Army, Civilian Personnel and Evaluation Agency (Respondent Personnel) to the attached decision of the Administrative Law Judge. The General Counsel filed an opposition to the exceptions.

The consolidated complaint alleges that Respondent U.S. Army Armament Research, Development and Engineering Center (Respondent Research) 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. The consolidated complaint further alleges that Respondent Personnel violated section 7116(a)(1) of the Statute by preventing Respondent Research from complying with its obligations under section 7114(b)(4) of the Statute. The Judge concluded that Respondent Personnel violated the Statute, as alleged in the complaint. However, the Judge recommended dismissal of the complaint alleging that Respondent Research violated the Statute.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. On consideration of the Judge's decision, the exceptions, and the entire record, we conclude that the complaint in this case must be remanded to the Judge for further proceedings.

II. Background

The Union represents a unit of professional employees of Respondent Research. The Union and Respondent Research are parties to a collective bargaining agreement which became effective on September 30, 1991.

During 1991, Respondent Personnel conducted an Army-wide classification study designed to assess the accuracy of position classifications. The study included, among other things, desk audits of a random sampling of employees at various Army installations. Among the positions audited were 12 at Respondent Research, of which 5 were in the unit represented by the Union. After completion of the study, "case listings" of audited positions were provided by Respondent Personnel to Respondent Research.(2) Judge's Decision at 3. Respondent Personnel provided Respondent Research 45 days in which to consider the findings in the study, take corrective action to remedy errors uncovered in the study, and/or request reconsideration of any of the audit findings it considered erroneous. Respondent Research submitted a rebuttal to Respondent Personnel and, at the time of the unfair labor practice hearing in this case, the rebuttal was under consideration.

In March 1992, Respondent Research and the Union were engaged in bargaining over work schedules. During the bargaining, the Chief of Labor/Employee Relations for Respondent Research informed Union representatives that desk audits of unit positions had been conducted and that the audits revealed that affected employees were not properly classified. The Chief of Labor Relations further informed the Union that approximately 80 additional positions would be audited, "that the audit[s] might lead to downgrading of unit employees and that [Respondent Research] was not in agreement with some of the findings made by the audit." Id. at 3-4 (footnote omitted).

Thereafter, the Union requested from Respondent Research a copy of the audit report and the Respondent's rebuttal thereto in order to determine which unit employees were affected and to ascertain whether employees' job descriptions were accurate.(3) Respondent Research forwarded the Union's request to Respondent Personnel, which denied the request by stating:

[Respondent Research] classification audits of jobs, although they may involve an interview with an incumbent employee to determine the scope of the duties performed, are related to the position not to the incumbent employee. In addition, audits of these positions are preliminary internal management working documents upon which no decision has been made. Even when a reclassification decision has been made, it is precluded from release pursuant to 5 USC 7103(a)(14)(B).

Id. at 4 (emphasis in original).(4)

III. Judge's Decision

The Judge stated that the issue before him was whether the requested information was necessary, within the meaning of section 7114(b)(4) of the Statute, and concluded that the information was necessary.(5) In so concluding, the Judge rejected Respondent Personnel's arguments that the requested information was not necessary because: (1) bargaining over job classifications is precluded by the Statute; and (2) no downgrading had taken place with respect to unit employees at the time of the Union's request.

With respect to the former argument, the Judge stated that, although "the Statute does preclude bargaining with respect to the substance of a job or position classification[,] it does . . . allow bargaining with respect to the impact and the manner of implementation of any change in a position classification." Id. at 6. With respect to the latter argument, the Judge stated that the Union's request was not "premature." Id. According to the Judge, the statement of the Chief of Labor Relations to Union representatives regarding the position audits "was tantamount to notice that a change in job classifications was about to come about because of the audit." Id. The Judge stated that disclosure of the requested information would enable the Union to: (1) discuss the validity of the audits with affected employees and provide relevant information regarding the audits to Respondent; and (2) "intelligently represent" affected employees with respect to "any adverse impact which could be expected . . . from the negative audit and also the manner of implementation of any changes resulting from the negative audit." Id. at 7.

Based on his conclusion that the requested information was necessary, within the meaning of section 7114(b)(4) of the Statute, the Judge concluded that Respondent Personnel violated the Statute by refusing to disclose and/or directing Respondent Research to refuse to disclose the information. However, the Judge also concluded that Respondent Research did not violate the Statute because, in the Judge's view, Respondent Personnel prevented Respondent Research from complying with its obligations under the Statute.

IV. Positions of the Parties

Respondent Personnel asserts that the Judge erroneously concluded that, at the time of the Union's request for information, a decision had been made to reclassify unit positions. According to the Respondent, "the record lacks any evidence of a . . . decision to change classification of any bargaining unit member's position." Exceptions at 8.

Respondent Personnel also asserts that the Union did not demonstrate a particularized need for the requested information, as required by the court's decision in National Labor Relations Board v. FLRA, 952 F.2d 523 (D.C. Cir. 1992) (NLRB v. FLRA) and Department of the Air Force, Scott Air Force Base v. FLRA, 956 F.2d 1223 (D.C. Cir. 1992) (Scott AFB v. FLRA), and that the Judge erred by failing to balance the Union's need for the requested information against the agency's anti-disclosure interests. In this connection, the Respondent asserts "two vital nondisclosure interests":

1) the deliberative process between officials and staff at different organizational levels of an agency must be protected so that personnel at higher headquarters are able to engage personnel in lower level organizations in candid deliberative discussions, e.g. [Respondent Personnel] must be free to provide training, advice, guidance, and counsel to the Civilian Personnel Offices it audits; and 2) individual classification rationales must be protected to prevent obfuscation or fabrication of duties by incumbents of those in similar positions which would corrupt the classification process.

Exceptions at 13-14.

The General Counsel argues that Respondent Personnel's first exception "miss[es] the point that this case involves the [Union's] right to data, not its right to bargain concerning changes in conditions of employment." Opposition at 3. As for the second exception, the General Counsel concedes that the Union's request "did not articulate a particularized need." Id. at 4. However, the General Counsel argues that, in view of "the warnings of possible downgradings and reclassification . . . the [Union's] need for the data either was or should have obvious [sic] to the Respondent." Id. Finally, the General Counsel argues that Respondent Personnel produced "absolutely no evidence[]" that "disclosure of the audit and rebuttal . . . will enable bargaining unit employees to lie, cheat and 'obfuscate[.]'" Id.

V. Analysis and Conclusions

At the outset, we reject Respondent Personnel's assertion that the requested information is not necessary, within the meaning of section 7114(b)(4) of the Statute, because there is no obligation under the Statute to bargain over the classification of positions. There is no indication in the record that the Union sought the requested information in order to bargain over the classification of the affected unit employees' positions. Moreover, even though the Statute excludes from the definition of "conditions of employment" matters "relating to the classification of any position[,]" it is clear that other matters directly related to position classification, including, for example, the impact and implementation of downgradings resulting from classification actions, are within the duty to bargain. For example, Department of Health and Human Services, Social Security Administration, Dallas Region, 23 FLRA 396 (1983).

Nevertheless, we conclude that we are unable to determine whether the requested information is necessary, within the meaning of section 7114(b)(4) of the Statute, and that, accordingly, we must remand this matter to the Judge.

In National Park Service, National Capital Region, United States Park Police, 48 FLRA 1151 (1993) (Member Talkin concurring in part and dissenting in part) (National Park Service), we addressed the standard we will apply to determine whether certain documents are necessary, within the meaning of section 7114(b)(4). In particular, we adopted the court's decision in NLRB v. FLRA, and stated, as relevant here, that:

[A]n agency is not obligated to provide a union with requested documents containing advice, guidance, counsel, or training materials provided for management officials under section 7114(b)(4) of the Statute unless the union demonstrates a particularized need, as set forth by the court [in NLRB v. FLRA], for such information.

National Park Service, 48 FLRA at 1160. We noted that the court in NLRB v. FLRA set forth two examples of instances where a union could establish a particularized need for advice, guidance, counsel, or training provided for management officials. In particular, the court stated that a union might establish such a need "where the union has a grievable complaint covering the information." 952 F.2d 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 also stated that particularized need for information could be established "when the disputed document creates a grievable action." Id. at 533. In this connection, 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 subsequently disciplinary action . . . ." Id.

We conclude that the requested classification audit report constitutes guidance, advice, and counsel provided for management officials. In this regard, the report resulted from an Army-wide audit of selected positions with the objective of evaluating and improving the accuracy of position classifications throughout the Army. In particular, we note that the purpose of the report was to present guidance, advice, and counsel for consideration by management officials. In this connection, the report informed Respondent Personnel of apparent errors in position descriptions and provided an opportunity for the Respondent to take corrective action or to request reconsideration of any finding it believed was incorrect. Moreover, Respondent Personnel asserts its interest in enabling "personnel at higher headquarters . . . to engage personnel in lower level organizations in candid deliberative discussions[.]" Exceptions at 13.(6)

Consistent with our decision in National Park Service, it is necessary to determine whether the Union has established a particularized need for the requested information. The General Counsel concedes, in this respect, that the Union's request for information "did not articulate a particularized need." Opposition at 4. However, at the time of the hearing and the Judge's decision in this case, the Authority had not adopted the court's decision in NLRB v. FLRA and there was no other basis on which the General Counsel or the Union should have concluded that it was necessary to demonstrate a particularized need for the requested information.

In these circumstances, we find that the complaint in this case must be remanded to the Judge for further proceedings. On remand, absent settlement, the Judge should provide an opportunity for the parties to address whether the Union has a particularized need for the requested information. In this regard, we do not address what circumstances, in addition to the two examples set forth by the court in NLRB v. FLRA, may establish such need. See National Park Service, 48 FLRA at 1165, n.13.(7)

VI. Order

The complaint is remanded to the Judge for further proceedings.

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

1. Member Talkin's separate concurring opinion is found at note 7 below.

2. A "case listing" contains "the title of the position audited, the incumbent's name, a summary of the review conducted by [Respondent Personnel], and a finding with respect to the validity of the job description and grade assigned to the position." Judge's Decision at 3, n.4.

3. Article 24 of the agreement between the Union and Respondent Research provides that unit employees are entitled to accurate job descriptions which will be reviewed yearly and that inaccuracies disclosed by such review will be corrected by Respondent Research. See Judge's Decision at 4, n.6.

4. 5 U.S.C. § 7103(a)(14)(B) provides that "conditions of employment" do not include matters "relating to the classification of any position[.]"

5. There is no dispute that, as found by the Judge, the requested information is normally maintained by Respondent Research in the regular course of business, is reasonably available, and that disclosure is not prohibited by law.

6. Although the Judge found that the information did not constitute "guidance or advice[]" and that there was no contention to the contrary, it is clear that the Judge was referring only to such guidance and advice as are encompassed within section 7114(b)(4)(C) of the Statute, not guidance and advice documents as discussed more broadly in NLRB v. FLRA.

7. For the reasons stated in my partial dissent in National Park Service, I disagree with the position adopted by my colleagues that in cases of this nature a union must demonstrate a particularized need for requested information that conforms to the standard set forth in NLRB v. FLRA. In National Park Service, I also articulated a definition of necessity that I would apply in determining whether a union has established that requested information is necessary so as to require disclosure under section 7114(b)(4)(B) of the Statute. Given the circumstances of this case, I agree that a remand would be helpful in adducing evidence to assist the Authority in determining whether the requested information should be disclosed, regardless of the standard applied to reach that result.