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26 FLRA NO. 4

U.S. ARMY RESERVE COMPONENTS
PERSONNEL AND ADMINISTRATION CENTER
ST. LOUIS, MISSOURI

                     Respondent

         and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 900

                    Charging Party

Case No. 7-CA-40459

DECISION AND ORDER

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached decision of the Administrative Law Judge. The issue is whether the Respondent violated section 7116(a)(1), (5) and (8) of the Federal Service Labor - Management Relations Statute (the Statute) when it refused to provide the Charging Party (the union) with unsanitized copies of statements of unit employees taken by the Respondent prior to an arbitration hearing.

II. Background

The Union is the exclusive representative of the Respondent's civilian employees and the Union and the Respondent are parties to a collective bargaining agreement covering the employees. The agreement contains a grievance procedure which provides for arbitration of unresolved grievances.

The basic facts in the case are not in dispute. In a letter dated January 6, 1984, the Respondent notified a unit employee that management had decided to remove her from her position for insubordination and for making and circulating malicious statements with the intent to harm and destroy the reputation of her supervisor. By letter dated January 13, 1984, the Union submitted a written grievance on behalf of the employee protesting the removal action. By letter to the employee dated January 26, 1984, management rejected the grievance and notified her that her removal was effective as of that date. The Union then invoked the arbitration provision of the parties' agreement.

In preparation for the arbitration hearing, the Respondent's Command Judge Advocate instructed a civilian legal technician to interview employees concerning the conduct of the employee which led to her removal. During the months of March, April, and May of 1984, the technician interviewed a number of unit employees and supervisors. The technician did not reduce all of the comments of the witnesses to writing but only those comments that were supportive of management's action. The written statements were adopted, signed or acknowledged by each employee and supervisor. About six of the individuals requested and received copies of their statements.

The Union requested that the Respondent furnish it with unsanitized copies of the statements and documents that had been obtained. The information was requested pursuant to section 7114(b)(4) of the Statute and the Union claimed that the information was sought for the purpose of representing the employee in the arbitration hearing.

The Respondent denied the Union's request based upon the following contentions: (a) the information requested was not data normally maintained by the Respondent in the regular course of business; (b) the data was not necessary for full and proper discussion, understanding and negotiation of subjects within the scope of bargaining; and (c) any documents prepared by the Judge Advocate's office in preparation for the arbitration hearing constituted attorney work product which, under the Federal Rules of Civil Procedure, was not discoverable by the union.

The Respondent retained the statements in the Office of the Command Judge Advocate. The Respondent has taken statements from employees in similar cases and those statements are similarly maintained. 

III. Administrative Law Judge's Decision

The Judge concluded that statements of witnesses taken by an agency in preparation for an arbitration hearing did not constitute data which must be furnished to a union under section 7114(b)(4) of the Statute. In reaching that conclusion, the Judge noted that the case presents a novel issue in the Federal sector. The Judge found that in analogous situations in the private sector the National Labor Relations Board has held that employers do not have to furnish witness statements to unions. The Judge cited Anheuser - Busch, Inc., 237 NLRB 982 (1978), in which the union requested statements taken by management of employees and supervisors in connection with a suspension; the union sought the statements to determine whether to pursue the grievance and to prepare for arbitration; the employer refused to supply the data requested; and the Board sustained the refusal. The Judge in this case noted that in the private sector, under National Labor Relations Board v. Acme Industrial Co., 385 U.S. 432 (1967), an employer has a general obligation to furnish a union, upon request, information that is relevant and necessary to the proper performance of its duties as bargaining representative. The Judge also quoted the Board's statement in Anheuser - Busch that:

(W)itness statements, however, are fundamentally different from the types of information contemplated in (NLRB v. Acme) and disclosure of witness statements involves critical considerations which do not apply to requests for other types of information.

Judge's decision at 7.

The Judge characterized the Anheuser - Busch decision as follows:

(T)he Board was reluctant to extend an employer's obligation to furnish information so as to require it to provide the union representative with statements obtained during an investigation of an employee's misconduct. It concluded that requiring pre-arbitration disclosure of witness statements would not advance the grievance and arbitration process. The Board was concerned that witnesses might be reluctant to give statements or be coerced by either employers or unions to change testimony--or not testify--after having given statements. These considerations, it felt, would diminish rather than foster the integrity of the grievance and arbitration process.

Judge's decision at 7.

The Judge concluded that the witnesses' statements in this case constituted investigative material rather than data kept by management on a regular basis in connection with its operations. 1 In the Judge's view, section 7114(b)(4) of the Statute does not require that such investigative material be furnished to the bargaining representative. Therefore, he recommended that the Authority dismiss the complaint.

IV. Position of the Parties

A. General Counsel's Exceptions

The General Counsel excepts to the Judge's conclusion that the witnesses' statements did not constitute data normally maintained in the regular course of business within the meaning of section 7114(b)(4)(B) of the Statute. The General Counsel argues that the Respondent stipulated that it retained the statements in the Office of the Command Judge Advocate and that it does take statements from employees on a recurring basis in similar cases and such statements are also maintained in its files. The General Counsel also argues that an agency which takes an adverse action against an employee is required by 5 U.S.C. chapter 75 and implementing Government-wide regulations (5 CFR 752.203(f)) to maintain a copy of any material supporting an adverse action against an employee and to  furnish such supporting material to the merit Systems Protection Board and to the affected employee upon request. Further, in that regard, the General Counsel argues that the Office of Personnel Management has defined the supporting material that must be furnished to include statements of witnesses, affidavits, documents and investigative reports or extracts. The General Counsel also argues that Government-wide regulations (5 CFR 771.202) require agency administrative grievance systems to provide for the creation of a grievance file, which includes statements of witnesses in the matter, and also require that the file that must be made available to the grievant and the grievant's representative. Thus, the General Counsel contends that by law and regulation the Respondent is required in the regular course of business to maintain and furnish witnesses' statements and affidavits which support an adverse action.

The General Counsel also excepts to the Judge's conclusion that the witnesses' statements constituted investigative material rather than data kept by management on a regular basis in connection with its operations. The General Counsel argues that the Judge's conclusion is not based on precedent and that the statements obtained by the Respondent were unrelated to any consideration of law enforcement or internal security. Additionally, the statements were not obtained under a pledge of confidentiality. Moreover, the General Counsel asserts that the Respondent offered no evidence to establish that the witnesses' statements constituted investigative material, or that the release of such statements would infringe upon internal security within the meaning of section 7106(a)(1) of the Statute, or that Federal law or regulation prohibited the disclosure of these statements. Thus, the General Counsel argues that both the evidence and legal precedent fail to establish that the requested witnesses' statements constitute confidential or investigative material which is exempt from disclosure under section 7114(b)(4) of the Statute.

In conclusion, the General Counsel argues that the statements requested by the Union contained information which was relevant and necessary to the performance by the Union of its representational function; was reasonably available and normally maintained by the Respondent; was not guidance, advice, counsel, or training provided for management officials or supervisors relating to collective bargaining; and was not privileged within the meaning of the attorney work-product doctrine. Therefore, the General Counsel contends that the Union was entitled to the requested information under section 7114(b)(4) of the statute and Respondent's failure and refusal to furnish the data violates section 7116(a)(1), (5) and (8) of the Statute.

B. Respondent's Opposition to General Counsel's Exceptions

The Respondent opposes the General counsel's exceptions and argues that the Judge's Decision should be affirmed and adopted in its entirety. The Respondent principally contends that the witnesses' statements are not data within the meaning of section 7114(b)(4) of the Statute. The Respondent cites the Authority's decision in Federal Aviation Administration, Alaskan Regional Office, 7 FLRA 164 (1981), in which the Authority held that witnesses were not "data" and management was not required, pursuant to section 7114(b)(4) of the Statute, to make its supervisors available at the Union's request to testify at an arbitration hearing. The Respondent argues that since witnesses are not "data," witnesses' statements likewise do not constitute data within the meaning of section 7114(b)(4) of the Statute.

The Respondent further argues that the witnesses' statements are investigative material and attorney work products prepared in anticipation of litigation, including grievance arbitration, which are not normally maintained in the Respondent's regular course of business. The Respondent asserts that its business is managing and supporting the members of the U.S. Army Reserve and that litigation and taking witnesses' statements in preparation for litigation is not a part of its management and support functions. The Respondent argues that the statements at issue were taken only after the removal action was completed, and then only in preparation for the arbitration hearing of that removal.

The Respondent also reiterates its arguments made before the Judge that: (1) the statements constituted guidance, advice and counsel for management officials which is exempt from disclosure pursuant to section 7114(b)(4)(C); (2) the statements are a work product exempt from disclosure under the Federal Rules of Civil Procedure and the Freedom of Information Act; 2 (3) disclosure of the statements is prohibited by the Privacy Act; 3 and, (4) the Union had access to the same data, that is, the witnesses from whom the statements were taken who either had or could obtain copies of their statements and the witnesses could provide the Union with copies if they wished.

V. Analysis

Section 7114(b)(4) of the Statute requires an agency to furnish an exclusive 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; and

(C) which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining.

Section 7114(b)(4) covers data or information which meets the conditions set forth in subsections (A) and (B) and which is not exempted by subsection (c) or otherwise prohibited by law from disclosure. The Authority has not previously considered the issue of whether statements of unit employees taken by management in preparation for an arbitration hearing must be furnished under section 7114(b)(4). 

1. Whether the witnesses' statements constitute data which is normally maintained by the Respondent in the regular course of business.

The parties stipulated that the witnesses' statements were retained at the Respondent's command Judge Advocate's office and that the Respondent takes such statements from employees on a recurring basis in similar cases and also keeps those statements in the same office. The Administrative Law Judge reasoned that the witnesses' statements were not documents or records that the Respondent maintained in the regular course of business because they were not a recordation of productivity or performance utilized in connection with management's operations which concerned employees in general. He also reasoned that the statements had no universal application but, rather, pertained to conduct of a particular employee and observation by fellow employees. Thus, he concluded that the statements were investigative material rather than data kept by management on a regular basis in connection with its operations.

We disagree with the Judge. Personnel administration, which includes the processing of adverse actions and grievances, is a regular part of an agency's business. It is undisputed that the Respondent routinely takes witnesses' statements in similar cases and that such statements are similarly maintained. In these circumstances, we conclude that the witnesses' statements constitute data which was normally maintained by the Respondent in the regular course of business within the meaning of section 7114(b)(4)(A). Whether the witnesses' statements are exempt from disclosure because they constitute investigative material is a separate issue.

2. Whether the witnesses' statements were reasonably available and necessary for the Union to perform its representational responsibilities.

It is undispated that the witnesses' statements were reasonably available to the Respondent. The Respondent argues that since copies of the statements were reasonably available from an alternative source, that is, the witnesses, it is relieved of its obligation to furnish the data under 7114(b)(4). The Respondent's argument is not persuasive. 

An integral part of an agency's statutory duty to negotiate in good faith is to furnish necessary data, upon request, to the exclusive representative, in accordance with 7114(b)(4). There is nothing in the language of section 7114(b) or the legislative history which implies that Congress intended a union's right to data under the provision to be dependent on whether the data is reasonably available from an alternative source.

The next issue which must be addressed is whether the statements were "necessary" within the meaning of section 7114(b)(4)(B). The Judge did not address this issue. The Judge acknowledged that the witnesses' statements would be useful to the Union as representative of the employee at the arbitration bearing. However, the Judge concluded that section 7114(b)(4) did not require that such "investigative material" be furnished the bargaining representative.

We do not agree with the Judge's finding that the statements were investigative material. The Respondent was not conducting an investigation but, rather, was taking statements in preparation for the arbitration proceeding.

As to whether the statements of the witnesses were "necessary," the Authority has previously held that under section 7114(b)(4) an agency is required to furnish an exclusive representative with information which would enable the union to effectively carry out its representational obligation in connection with the processing of an employee grievance. Veterans Administration, Iron Mountain, Michigan, 10 FLRA 468 (1982); Bureau of Alcohol, Tobacco and Firearms, National Office and Western Region, San Francisco, California, 8 FLRA 547 (1982); Department of the Navy, Portsmouth Naval Shipyard, 4 FLRA 619 (1980). Authority decisions have made it clear that under section 7114(b)(4) a union has a right to data necessary for it to determine whether or not to file a grievance and for the union to effectively evaluate and process a grievance. See Internal Revenue Service, National Office, 21 FLRA No. 82 (1985); U.S. Department of Labor, Employment Standards Administration, Wage and Hour Divisions, 18 FLRA No. 22 (1986); Social Security Administration, 15 FLRA 969 (1984); Social Security Administration, Northeastern Program Service Center, 18 FLRA No. 66 (1985). 

In this case, however, we find that the witnesses' statements were not necessary within the meaning of 7114(b)(4)(B) for the Union's understanding of the basis for the employee's removal, for the processing of the grievance concerning that action or for the Union to effectively represent the employee at the arbitration hearing. The Union knew the specific factual basis for the action. The Union was entitled to any information relied upon by the Respondent in taking the action. The Union had already filed a grievance on behalf of the employee and processed the grievance to the arbitration stage. Viewed from a different perspective, it does not appear that the Union's ability to fulfill its statutory obligations in these circumstances was necessarily dependent on access to the particular witness statements which the Union sought.

In analogous situations in unfair labor practice cases, a party is not required to provide another party with the identities of persons it intends to call as witnesses in a hearing before an Administrative Law Judge of the Authority until just prior to the opening of the hearing. Section 2423.14 of the Authority's Rules and Regulations, as amended (51 Fed. Reg. 45751, 45752-53, Dec. 22, 1986), requires the exchange of witness lists and copies of documents at the prehearing conference just prior to the opening of the hearing. Thus, in unfair labor practice cases, the representative of a party does not have a right to the identities of witnesses of opposing counsel until just prior to commencement of a hearing. Further, any issues that arise concerning the requirement to provide information at the re-hearing conference is subject to the discretion and rulings of the presiding Administrative Law Judge.

Accordingly, based on the facts and circumstances in this case and analogous unfair labor practice procedures, we conclude that the statements of witnesses taken by the Respondent were not "necessary" within the meaning of section 7114(b)(4)(B) of the Statute to enable the Union to effectively represent the employee at the arbitration hearing; and, therefore, that the Respondent was not obligated to provide the Union with the requested information. The Union could, of course, have asked the arbitrator in the matter to direct the Respondent to provide the Union with copies of the statements for such purposes as possible impeachment of witness testimony and such a request would be subject to the discretion and rulings of the arbitrator. In that regard, it is well established that an arbitrator has considerable latitude in the conduct of a proceeding. See, for example, U.S. Department of Labor and American Federation of Government Employees, Local No. 644, NCFLL, 12 FLRA 639, 641 (1983).

The arguments of the General Counsel as to whether the witnesses' statements might be considered supporting material for the employee's removal within the meaning of 5 U.S.C. chapter 75 and implementing Government-wide regulations are not relevant to the determination of whether the Union was entitled to the statements under section 7114(b)(4) of the Statute. The Respondent's compliance with the statutory and regulatory provisions cited is not at issue in this case. As the General Counsel recognizes, the grievance involved in this case was filed under negotiated grievance procedures and is subject to the requirements established by the parties in their agreement, the arbitrator and the Federal Service Labor - Management Relations Statute. In addition, the authorities cited by the General Counsel refer to material upon which an agency bases a notice of proposed adverse action and upon which. It relies to support the reasons in the notice. The statements in this case were obtained in preparation for the arbitration hearing on an action which had been taken. They were not relied upon in preparation of the notice of proposed removal.

We conclude that while the witnesses' statements were reasonably available, they were not necessary within the meaning of section 7114(b)(4)(B) for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining. In view of this conclusion, we need not determine whether the statements were exempt from disclosure under section 7114(b)(4)(C) or whether the Respondent was prohibited by law from providing the Union with the statements.

VI. Conclusion

We conclude that the Respondent was not required to provide the Union with copies of the witnesses' statements under section 7114(b)(4) and, therefore, that the Respondent did not violate section 7116(a)(1), (5) and (8) of the Statute by failing and refusing to furnish the Union the requested data. We will therefore dismiss the complaint.

ORDER

The complaint in Case No. 7-CA-40459 is dismissed.

Issued, Washington, D.C., March 5, 1987

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY 

U.S. ARMY RESERVE COMPONENTS
PERSONNEL AND ADMINISTRATION CENTER,
ST. LOUIS, MISSOURI

               Respondent

    and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 900

               Charging Party

Case No.: 7-CA-40459

Edelbert Phillips, Esq.
          For the Respondent

James J. Gonzales, Esq.
          For the General Counsel

Winifred L. Jones
          For the Charging Party

Before: WILLIAM NAIMARK
          Administrative Law Judge

DECISION

Statement of the Case

Pursuant to a Complaint and Notice of Hearing issued on June 12, 1984 by the Regional Director for the Federal Labor Relations Authority, Region VII, a hearing was held before the undersigned on August 16, 1984 at St. Louis, Missouri.

This case arose under the Federal Service Labor - Management Relations Statute, 5 U.S.C. 7101 et seq. (herein called the Statute). It is based on an amended charge filed on June 4, 1984 by American Federation of Government Employees, AFL - CIO, Local 900 (herein called the Union) against U.S. Army Components Personnel and Administration Center, St. Louis, Missouri (herein called Respondent). 

The Complaint alleged, in substance, that on or about April 9, 1984 the Union requested that Respondent furnish it with unsanitized copies of unit employees statements taken by Respondent prior to an arbitration hearing; that at all times since April 27, 1984 Respondent has failed and refused to furnish the data as requested - all in violation of Section 7116(a)(1), (5) and (8) of the Statute.

Respondents' Answer, dated June 22, 1984, admitted, inter alia, that the Union requested said information for use at an arbitration hearing, and also admitted the failure and refusal to furnish same. 4 The Answer also denied the commission of any unfair labor practice.

All parties were represented at the hearing. Each was afforded an opportunity to be heard, to adduce evidence, and to examine as well as cross-examine witnesses. Thereafter briefs were filed with the undersigned which have been duly considered. 5

Upon the entire record herein, and from all of the testimony and evidence adduced at the hearing, I make the following findings and conclusions:

Findings of Fact 6

1. At all times material herein the Union has been the exclusive bargaining representative of Respondent's career or career-conditional civilian employees, and all temporary and part-time employees and employees on excepted appointments, including VRA employees, and handicapped employees, with a reasonable expectation of continued employment beyond 90 days. 

2. At all times material herein the Union and Respondent have been, and still are, parties to a collective bargaining agreement covering the aforesaid unit employees.

3. The collective bargaining agreement between the parties contains a grievance procedure (Article XXIX), and provision is also made for arbitration (Article XXX) of unresolved grievances and the procedures to be followed when arbitration is invoked.

4. In a letter dated January 6, 1984 Respondent notified unit employee Karen P. Rome that management had decided to remove her on January 16, 1984 from her position as military personnel clerk. The said decision was based on Rome's alleged insubordination as well as knowingly making and circulating malicious statements with intent to harm and destroy the reputation of her supervisor.

5. Under date of January 13, 1984 7 the Union submitted a written grievance to management protesting the removal of employee Rome. The grievance was submitted, as stated, pursuant to Article XXVIII, Section 6 of the, bargaining agreement between the parties. 8

6. On January 26 Respondent addressed a letter to Rome in which it rejected her grievance, and the employee was notified therein that her removal became effective as of that date.

7. Pursuant to the collective bargaining agreement between the parties the Union brought the denial of the grievance by management to arbitration.

8. In order to prepare for the arbitration hearing Major John W. Higley, who was Respondent's Command Judge Advocate, instructed Howard Bishop, Jr., a civilian legal technician, to interview employees concerning the conduct of Rome which led to her removal. Higley wanted Bishop to obtain statements from witnesses which would reflect the facts, as well as confirm the basis for management's disciplinary action.

9. During the months of March, April and May, Bishop interviewed and obtained statements from eleven unit employees and five supervisors. The written statements were adopted, signed or acknowledged by each employee and supervisor respectively. 

10. In writing the statements of the witnesses Higley selected those facto which buttressed management's position re the removal of Rome and contradicted the latter's version of what happened. He did not reduce to working every statement or comment made by the individuals whom he interviewed.

11. About six or seven individuals, from whom statements were taken, requested and received copies thereof. None of the statements obtained by Bishop contained any management guidance or advice for supervisors.

12. Under date of April 9 the Union sent a letter to Respondent wherein it requested unsanitized copies of all statements and documents obtained by Bishop and March concerning Rome. The data was sought by the Union for the purpose of representing Rome in the arbitration hearing re her grievance and disciplinary removal. Said data, which involved the written statements obtained by Higley in anticipation of the arbitration proceeding, was requested pursuant to 5 U.S.C. 7114(b)(4) of the Statute.

13. By letter dated April 27 Respondent denied the Union's request for the documents obtained by management relevant to the investigation regarding Rome. The denial was based upon the following contentions: (a) the information requested was not deemed to be data normally maintained by Respondent in the regular course of business; (b) the said data was not necessary for full and proper discussion, understanding and negotiation of subjects within the scope of bargaining; (c) any documents prepared by the Judge Advocate's office in preparation for the arbitration hearing are deemed a work product and not discoverable by the Union.

14. The record reflects that Respondent has kept all the statements obtained by Bishop, as aforesaid, at its St. Louis, Missouri facility in the office of the Command Judge Advocate; that Respondent estimated it has taken statements 35 or 40 percent of the time - about three times during the last 12 months for matters which included an EEO matter and a grievance arbitration.

Conclusions

General Counsel contends that, under Section 7114(b)(4) of the Statute. The Union was clearly entitled to the statements taken by Respondent of the employees. It is urged that the requested data was necessary and relevant to the Union's fair and proper representation of Rome at the arbitration hearing concerning her pending grievance. Moreover, General Counsel insists that the data requested was in existence and reasonably available; that the statements taken by management were normally maintained in the regular course of business at its St. Louis, Missouri facility in the Office of the Command Judge Advocate.

The foregoing contentions are dispated by the agency herein. Further, Respondent maintains that, as to the statements taken from supervisors, such data constitutes guidance, advise and counsel and are exempt from disclosure under the Statute. In addition to such defenses, Respondent maintains that the Union also had access to the potential witnesses and thus there was no obligation on its part to furnish their statements. It is also insisted that witness statements taken in preparation for litigation constitute a work product of the attorney which, under the Federal Rules of Civil Procedure, need not be disclosed; and that, in any event, disclosure of statements from witnesses is prohibited by the Privacy Act, 5 U.S.C. 552(a).

Numerous cases have been decided by the Authority involving the obliga-tion of an agency to furnish data under section 7114(b) of the Statute. 9 In instances where a union has sought data in order to determine whether it will pursue a grievance on behalf of an employee, or during the pendency of such a grievance filed by the union, the Authority has concluded that the agency must furnish certain requested information. Social Security  Administration, Baltimore, Maryland, 17 FLRA No. 113; Veterans Administration Regional Office, Denver, Colorado, 10 FLRA No. 78; U.S. Customs Service, Region VII, Los Angeles, California, 10 FLRA No. 47. This obligation to furnish data is deemed by the Authority to be an integral part of an agency's duty to negotiate in good faith under Section 7114(b)(4) of the Statute.

The data which the Authority has ordered an agency to furnish the Union in the cited cases, to enable the representative to pursue a grievance as part of its duties, concerned such items as data or documents used by an agency in denying promotion to an employee, copies of audits of employees who received the highest ratings on performance appraisals, names of employees corresponding to alphanumerical identification designations used by a merit promotion panel. 10 These records were utilized by management in connection with appraisals of employees, which resulted in a decision affecting an employee who filed a grievance. Proper representation of the grievant by a union mandated that such records or documents be furnished by the agency in each instance.

The present controversy, however, presents a somewhat novel issue since the Union herein has requested statements of employees taken by the agency. Since these statements are supportive of management's action in disciplinary employee Rome, they are deemed necessary by the Union to prepare for the arbitration hearing. Neither Section 7114(b) nor its legislative history sheds any light on the type of material which must be furnished a union to fulfill its duty of fair representation. Moreover, decisional law in the public sector has not had occasion to consider whether witness statements fall within the purview of 7114(b)(4).

In the private sector, however, the National Labor Practice Board has held that witness statements do not have to be furnished the union in situations analogous to the one at bar. Thus, in Anheuser - Busch, Inc. 237 NLRB No. 146 the union requested statements taken by management of employees and supervisors in connection with a suspension of the grievant by the employer. The union sought the statements to determine whether to pursue the grievance and to prepare for arbitration of the employee's suspension. The employer refused to supply the data requested. In sustaining this refusal the National Labor Relations Board continued to adhere to the "Acme" 11 principle that Section 8(a)(5) of the Act 12 imposed a "general obligation" on an employer to furnish a union, upon  request, information relevant and necessary to the proper performance of its duties as bargaining representative. Nevertheless, it declared that:

"witness statements, however, are fundamentally different from the types of information contemplated in Acme, and disclosure of witness statements involve critical considerations which do not apply to requests for other types of information. . ."

The Board was reluctant to extend an employer's obligation to furnish information so as to require it to provide the union representative with statements obtained during an investigation of an employee's misconduct. It concluded that requiring re-arbitration disclosure of witness statements would not advance the grievance and arbitration process. The Board was concerned that witnesses might be reluctant to give statements, or be coerced by either employers or unions to change testimony - or not testify - after having given statements. These considerations, it felt, would diminish rather than foster the integrity of the grievance and arbitration process.

While the Authority has not passed upon the precise issue involved herein, several decisions in the public sector may aid in its determination. Note is taken of a negotiability decision, National Labor Relations Board Union and General Counsel of the National Labor Relations Board, 5 FLRA No. 95. In the cited case the union proposed that it be permitted to photocopy case file material for the purpose of grievance processing, up to and including arbitration. Further, that only such material would be copied as is relevant and necessary to grievance processing and arbitration. The case file materials, which were the subject of the union's proposals, involved investigative records used in the course of investigating and prosecuting unfair labor practice cases under the National Labor Relations Act. Such records included affidavits, financial data, and certain confidential material. The Authority, although recognizing the duty of an agency to provide a union with data necessary to fulfill its representational duties under 7114(b) of the Statute, held that the proposal would interfere with the Agency's authority under Section 7106(a)(1) to determine its own internal security practices. Such determination includes the right to prevent unauthorized disclosure of the Agency's investigative files by restricting access to those files.

In Department of Health and Human Services, Social Security Administration, Field Assessment Office, 12 FLRA No. 84, the union and management were engaged in discussions re the inadequacy of per diem which the employees received for travel. A study of travel practices was conducted, and management prepared questionnaires which it distributed to its analysts for use in interviewing employees about travel practices. The union requested that it be furnished all information, including the questionnaires, relating to onsite visits to three of the agency's offices. Said request was not honored. The Authority agreed with Administrative Law Judge Isabelle Cappello's conclusion that Section 7114(b)(4) of the Statute did not require the employer to turn over the questionnaires. It was determined that the questionnaires failed to meet the criterion laid down under 7114(b)(4)(A), i.e. that the data be normally maintained by the agency in the regular course of business. They were not standard forms, which an agency regularly uses and would normally maintain, such as travel vouchers or payroll records.

Turning to the case at bar, I am not persuaded that witness statements, taken by Respondent in preparation for an arbitration hearing, typify data which must be furnished a union under 7114(b)(4) of the Statute. These statements are not, in my opinion, documents or records that an agency maintains in its regular business. They are not a recordation of productivity or performance, utilized in connection with management's operations, which would concern employees in general. They have no universal application, but rather pertain to conduct of a particular employee and observations by fellow employees. Despite their potential usefulness to the Union as Rome's representative at the arbitration hearing, the witness statements constitute investigative material rather than data kept by management on a regular basis in connection with its operations. Factual recitations by employees, which are in affidavit form, are not recorded by Respondent as a regular and continuous aspect of its operations. To this extent, the holding by the National Labor Relations Board in Anheuser - Busch, supra, seems equally applicable herein. Said statements are fundamentally different from data which management should furnish a union for the latter to perform its representational duties. They are not, in fact, the sole product of Respondent's records, but are representations by individual employees which are made for a limited purpose.

In sum, I am not convinced that witness statements or affidavits, as adduced by Respondent, constitute data which should be furnished the Union in order to pursue the Rome grievance and proceed to arbitration. Section 7114(b)(4) does not, in my opinion, contemplate that such investigative material be furnished the bargaining representative. 13 Accordingly, I recommend the Authority issue the following: 

ORDER

The Complaint in Case No. 7-CA-40459 be, and the same hereby is, DISMISSED.

WILLIAM NAIMARK
Administrative law Judge

Dated: June 13, 1985
       Washington, DC

FOOTNOTES

Footnote 1 The Judge specifically rejected the Respondent's argument that the statements were exempted from disclosure because the statements constituted guidance, advice and counsel for management and he found it unnecessary to pass upon Respondent's other arguments that (1) the statements were a work product which need not be disclosed under the Federal Rules of civil Procedure; (2) that disclosure of the statements was prohibited by the Privacy Act; and (3) the Union had access to the same witness data through the witnesses.

Footnote 2 5 U.S.C. 552 (1982).

Footnote 3 5 U.S.C. 552a (1982).

Footnote 4 Respondent also denied allegations in the Complaint that the data requested (a) was normally maintained by it in the regular course of business, (b) was reasonably available for full and proper discussion and understanding of collective bargaining subjects, (c) does not constitute guidance, advice, counsel or training provided for management officials or supervisors related to collective bargaining.

Footnote 5 Subsequent to the hearing General Counsel filed a Motion to Correct the Transcript herein. No objection having been interposed, and it appearing that the proposed corrections are proper, the Motion is granted as requested.

Footnote 6 Factual findings by the undersigned are also based upon a Stipulation of Facts executed by the parties on August 13, 1984 (General Counsel's Exhibit 3), together with Exhibits 3A and 3B attached o the Stipulation.

Footnote 7 Unless otherwise indicated, all dates hereinafter mentioned occur in 1984.

Footnote 8 This provision in the agreement requires Respondent to delay for five workdays the effective date of a disciplinary action, which suspends an employee in excess of five days or removes the employee from service, to permit the employee to file a grievance over such action.

Footnote 9 Section 7114(b)(4) of the Statute provides: 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 - (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; and (C) which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining.

Footnote 10 Veterans Administration Regional Office, Denver, Colorado, 7 FLRA No. 100.

Footnote 11 N.L.R.B. v. Acme Industrial Co., 385 U.S. 432 (1967).

Footnote 12 National Labor Relations Act, as amended.

Footnote 13 Respondent's defense that the data sought herein constituted guidance, advice and counsel for management, and is thus exempt from disclosure, is rejected. Respondent's own witness, Howard Bishop, testified the statements did not serve such a purpose. With respect to the agency's other defenses, i.e. the statements are a work product which need not be disclosed under the Federal Rules and Civil Procedure, that disclosure of statements from witnesses is prohibited under the Privacy Act, 5 U.S.C. 552(a), and that the Union has access to the same data (witnesses), the undersigned finds it unnecessary to make a determination thereof.

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