---

38 FLRA No. 48

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL LABOR RELATIONS BOARD

(Respondent)

and

NATIONAL LABOR RELATIONS BOARD UNION

LOCAL 6

(Charging Party)

2-CA-50471

32 FLRA 305 (1988)

26 FLRA 108 (1987)

DECISION AND ORDER ON REMAND

November 28, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the Respondent and the General Counsel to the attached decision of the Administrative Law Judge. The complaint alleged that the Respondent 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 information requested under section 7114(b)(4) of the Statute.

In 32 FLRA 305, the Authority remanded this case to the Judge to determine whether the document sought by the Union was "necessary" within the meaning of section 7114(b)(4)(B), and whether it constituted "guidance, advice, counsel, or training . . . relating to collective bargaining" under section 7114(b)(4)(C). The Judge found that, with the exception of one part, the document (1) was necessary for the Union to perform its representational duties on behalf of a unit employee and (2) did not constitute guidance, advice, counsel or training for management officials or supervisors under section 7114(b)(4)(C) of the Statute. Accordingly, the Judge found that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by refusing to furnish the document, with one part deleted, to the Union.

Pursuant to section 2423.29 of our Rules and Regulations, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. For the reasons stated below, which differ from those of the Judge, we find that the Respondent violated section 7116(a)(1), (5) and (8) of the Statute by refusing to furnish the requested document to the Union.

II. Background

A. Facts

An employee in the Respondent's Pittsburgh Office requested a part-time work schedule pursuant to Article 22 of the parties' collective bargaining agreement, which sets forth various provisions concerning requests for, consideration of, and granting or denying requests for, part-time employment. Judge's Decision at 5.

By memorandum dated January 25, 1985, the Pittsburgh Regional Director transmitted a copy of the employee's request to the Associate General Counsel and the Assistant General Counsel in Washington, D.C. In the memorandum, the Regional Director set forth the reasons why the employee sought part-time employment, the contents of his discussion with the employee, the problems experienced where part-time schedules have been implemented, the staff complement, case intake, workload factors, and staffing problems in the regional office. The Regional Director concluded the memorandum with his recommendation. Respondent's Exhibit 1.

After review of the employee's request and the Regional Director's memorandum, the Assistant General Counsel advised the Regional Director by memorandum dated March 8, 1985, that the employee's request for part-time employment was denied. A copy of the March 8 memorandum was sent to the employee. In the March 8 memorandum, the Assistant General Counsel discussed: (1) the staff ceiling and current staffing of the region; (2) the recent case intake and productivity levels of the region; (3) the projected increase in case intake and workload in 1985; and (4) the denial of recent requests for part-time employment from two other attorneys in the office. In the memorandum, the Associate General Counsel noted that the Regional Director had proposed to the employee several alternative part-time schedules, which were unacceptable to the employee. He also noted that the Regional Director recommended that the employee's request be denied. The Assistant General Counsel concluded that staffing considerations and the operational needs of the region precluded the approval of the part-time schedule requested. Accordingly, the Assistant General Counsel denied the request.

By memorandum dated March 15, 1985, the Union requested from the Respondent information on the workload of the Pittsburgh Regional office and a copy of the Regional Director's recommendation concerning the employee's part-time schedule request. The Union stated that "the information was sought in order to evaluate the merits of a prospective grievance." Judge's Decision at 6.

The Respondent furnished the workload information, but refused to furnish the memorandum. The Union filed a grievance under the parties' collective bargaining agreement over the Respondent's denial of the employee's request for part-time employment and renewed its request for the memorandum. The Respondent continued to refuse to furnish the memorandum and denied the grievance. The parties subsequently agreed to extend the time for referring the grievance to arbitration until the instant case was decided by the Authority.

B. Authority's Decision

On March 10, 1987, based on a stipulated record, the Authority issued National Labor Relations Board, 26 FLRA 108 (1987) (NLRB). The Authority held 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). Accordingly, the Authority concluded that the Respondent's failure to furnish the Union with the memorandum did not violate section 7114(b)(4) of the Statute.

C. Court's Decision

In National Labor Relations Board Union, Local 6 v. FLRA, 842 F.2d 483 (D.C. Cir. 1988), the United States Court of Appeals for the District of Columbia Circuit held that section 7106 does not bar the disclosure of information under section 7114(b)(4) of the Statute. The court vacated the Authority's decision in NLRB and remanded the case to the Authority for consideration of the Respondent's other arguments.

D. Authority's Decision and Order on Remand

In 32 FLRA 305, the Authority concluded, pursuant to the remand from the court, that the parties' stipulation did not provide sufficient evidence to determine whether the memorandum sought by the Union was "necessary" within the meaning of section 7114(b)(4)(B), and whether it constituted "guidance, advice, counsel, or training . . . relating to collective bargaining" under section 7114(b)(4)(C) of the Statute. The Authority further concluded that those determinations more appropriately would be made by an Administrative Law Judge (ALJ) based on hearing testimony and, if deemed necessary by the ALJ, by examination of the memorandum in camera. Accordingly, the case was remanded for findings of fact and consideration by an ALJ.

III. Administrative Law Judge's Decision

A. Judge's Rulings on Motions and Requests

Prior to the hearing before the ALJ, the General Counsel issued a subpoena duces tecum, under section 2429.7 of the Authority's Rules and Regulations, requiring the production of the memorandum. The Respondent did not comply with the subpoena, but, rather, filed a Motion to Quash the Subpoena Duces Tecum or in the Alternative for Protective Order with the Authority's Regional Director under 2429.7(e) of the Rules and Regulations. The Regional Director referred the motion to the Chief Administrative Law Judge, who referred it to the Judge in this case for ruling.

At the hearing, the Judge concluded that the memorandum should be made available to counsel for the parties for use at the hearing, and that "a protective order would issue that it not be disclosed to the Union." Judge's Decision at 3. The Judge denied the Respondent's Motion to Quash the Subpoena and directed the Respondent to make the memorandum available under a protective order. The Respondent took the position that the Decision and Order on Remand from the Authority precluded the issuance of a protective order and refused to produce the memorandum under a protective order. However, the Respondent offered to furnish the memorandum to the Judge for an in camera inspection.

The Judge accepted the memorandum for his in camera examination. The Judge denied the requests of the General Counsel and the Union that he impose sanctions against the Respondent and draw adverse references from the Respondent's refusal to comply with the protective order. The Judge recited for the record the general nature of the memorandum to enable the parties to litigate and brief the issues. The General Counsel advised the Judge that she "was not going to seek enforcement of the subpoena order." Transcript at 28. The General Counsel also told the Judge that she had decided to rely on the Judge's record description of the document. At the close of the hearing, the Judge forwarded the memorandum to the Authority under seal.

B. Judge's Decision

First, the Judge rejected the Respondent's contention that the Regional Director's recommendation was not necessary for the Union to process the employee's grievance because the Respondent disclosed to the employee the facts underlying its decision. The Judge noted that the Union alleged that the Regional Director was hostile toward part-time schedules for attorneys. In the Judge's view, the memorandum was necessary for the Union to determine what considerations influenced the Regional Director's recommendation and were included in his memorandum. The Judge concluded that the Union was entitled to the memorandum, unless it was otherwise privileged from disclosure under section 7114(b)(4) of the Statute, "to evaluate its significance and determine whether to proceed with the grievance." Id. at 8-9.

Next, the Judge addressed the issue of whether the Regional Director's memorandum constituted guidance, advice, counsel or training under 7114(b)(4)(C) of the Statute. The Judge rejected the General Counsel's contention that section 7114(b)(4)(C) applies only to data which directly relates to the actual process of collective bargaining or to the written deliberations of management labor relations advisors in the context of contract negotiations, grievances or similar labor management exchanges. According to the Judge, this interpretation of section 7114(b)(4) was previously rejected by the Authority in Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 30 FLRA 127 (1987) (National Weather Service). In the Judge's view, under the Authority's decision in National Weather Service:

in order to conclude that a document is privileged from disclosure under 7114(b)(4)(C) as guidance, advice or counsel, it must reflect the written deliberation or thought process and his recommendations.

Judge Decision at 10.

Based on his examination of the Regional Director's memorandum, the Judge concluded that the memorandum was "essentially a factual recitation of the staff attorneys, the number of complaints issued, cases tried or to be tried, and the considerations discussed with [the employee]." Id. In the Judge's view, while those facts formed the basis for the Regional Director's ultimate recommendation, "the memorandum [did] not set forth [the Regional Director's] deliberations or thought processes which might be described as, or form the basis of, guidance, advice or counsel by him to management." Id. The Judge further determined that the memorandum did not "present any in-depth assessment of the request with clear labor-management relations implication." Id.

The Judge noted, however, that the last sentence of the memorandum and the footnote contained the recommendation of the Regional Director. The Judge concluded that the memorandum, except for the last sentence and its attendant footnote, did not constitute guidance, advice, counsel or training for management officials or supervisors under section 7114(b)(4)(C) of the Statute. Accordingly, the Judge found that the Respondent's refusal to furnish the memorandum, with the last sentence and footnote deleted, was violative of section 7116(a)(1), (5), and (8) of the Statute.

IV. General Counsel's Exceptions

First, the General Counsel excepts to the Judge's denial of its request that sanctions, particularly the drawing of adverse inferences, be imposed against the Respondent for its refusal to permit the parties to review the memorandum under the Judge's protective order. The General Counsel argues that the Judge should have drawn an inference that the document did not fall within the section 7114(b)(4)(C) exception to disclosure. According to the General Counsel, the parties at the hearing should be permitted access to the document for litigation purposes, "particularly where precautions can be taken to avoid disclosure or use of the document in the underlying grievance." General Counsel's Exceptions at 6. The General Counsel contends that without the document it "could not fully analyze the significance of the last sentence and footnote . . . ." Id. at 5-6. The General Counsel notes that the Authority approved of the use of sanctions and adverse inferences in National Weather Service at 138-140.

Second, the General Counsel argues that the Judge incorrectly interpreted section 7114(b)(4)(C) of the Statute and the Authority's decision in National Weather Service. The General Counsel asserts that the Judge "gave too broad a sweep to the terms of section 7114(b)(4)(C) and the Authority's language interpreting it in [National Weather Service]." Id. at 2. The General Counsel contends that, under the Judge's interpretation of section 7114(b)(4)(C), "any document generated by a supervisor or management official which contains deliberations or reflects the thought process and recommendation of the management representative would be exempt from disclosure." Id. The General Counsel argues that section 7114(b)(4)(C) "protects from disclosure [management] documents reflecting advice, counsel or guidance on how the collective bargaining process--bargaining, grievances, etc.--should be pursued." Id. at 2. According to the General Counsel:

where, as here, a line manager is recommending a course of action in response to an employee['s] request and where the matter is not currently the subject of either bargaining, the grievance procedure or some other management/union interaction, section 7114(b)(4)(C) should not prevent the release of the recommendation . . . .

Id. at 2-3 (emphasis in original). In the General Counsel's view, interpreting section 7114(b)(4)(C) in the manner it suggests:

allows management to protect its views on the process of collective bargaining - once it has been initiated - but permits the Union access to other management generated documents from the day-to-day operation of the agency that may impact on the terms and conditions of employment of unit employees . . . and which are necessary to representing employees in such matters as grievances or contract bargaining.

Id. at 3.

According to the General Counsel, National Weather Service supports its contention that section 7114(b)(4)(C) of the Statute applies only to documents produced in the context of the "collective bargaining process." Id. at 2. The General Counsel notes that in National Weather Service, the Authority found that a labor relations officer's deliberations and recommendation concerning how management should deal with the discipline of a union representative was exempt from disclosure under section 7114(b)(4)(C) of the Statute. The General Counsel argues that the instant case is distinguishable from National Weather Service because it does not involve the recommendation of a labor relations officer concerning a matter with "obvious labor-management relations implications." Id. at 4 (quoting National Weather Service at 143). The General Counsel asserts that the memorandum in this case "involves no labor-management interaction[,]" but "deals with a management response to an employee request." Id. at 3.

V. Respondent's Exceptions

The Respondent contends that the Regional Director's memorandum constitutes guidance, advice, or counsel within the meaning of section 7114(b)(4)(C) of the Statute and should not be disclosed to the Union. The Respondent asserts that the Regional Director's memorandum "is not a recitation of facts by a witness to an event or incident." Respondent's Exceptions at 11. Rather, the Respondent maintains that the Regional Director's memorandum is a "deliberative process document." Id. at 10. In this regard, the Respondent asserts that, in order for the Regional Director to make his recommendation on the employee's part-time employment request, the Regional Director "had to collect all the facts, then choose those he believed to be entitled to significant weight in support of his recommendation." Id. at 14. Further, according to the Respondent, the Regional Director "analyze[d] the request in terms of its human relations, EEO and labor relations impact." Id. at 12-13. The Respondent argues:

This very process of selecting specific facts out of a larger group of facts, distilling the significant ones from the less significant is a deliberative process. It requires judgment, takes thought and was essential for [the Regional Director] to formulate an appropriate recommendation on an obvious labor[-]management relations issue.

Id. at 14.

The Respondent also excepts to the Judge's conclusion that the Regional Director's memorandum was "necessary" within the meaning of section 7114(b)(4)(B) of the Statute. Id. at 18. The Respondent argues that the memorandum "is . . . neither relevant to nor necessary to the Union's grievance over [the Respondent's] decision to deny [the employee's] request to convert to part-time status." Id. The Respondent claims that the memorandum "is merely a recommendation which has no force and effect." Id. According to the Respondent, "[t]here was absolutely nothing for the Union to grieve until the [Assistant General Counsel] made his decision. Id. The Respondent maintains that the Union must grieve the Assistant General Counsel's March 8 decision denying the employee's request, "not the recommendation of [the] Regional Director[.]" Id. The Respondent argues that "the [Respondent's] decision to deny the [employee's] request for a 3-day workweek will stand or fall on [the Assistant General Counsel's] rationale." Id. at 19.

Further, the Respondent objects to the Judge's conclusion that the memorandum was necessary for the Union to determine what considerations influenced the Regional Director's recommendation. The Respondent argues that:

even if [the Regional Director's] memorandum did include evidence of disparate treatment or "details concerning [the employee's] behavior, work record and history of employment," those details would be totally irrelevant and unnecessary to the Union's grievance unless and until they were adopted by the decision maker.

Id. at 19.

VI. Analysis and Conclusions

A. Judge's Rulings on Motions and Requests

We have carefully reviewed the rulings of the Judge made at the hearing. We conclude that the Judge was not required to impose the sanctions requested by the General Counsel against the Respondent for its refusal to produce the disputed memorandum, under a protective order. Rather, we find that it was within the discretion of the Judge to deny the General Counsel's request for sanctions and to permit the Respondent to provide the memorandum for his in camera examination.

The record in this case reveals that at the beginning of the hearing, the Judge denied the Respondent's Motion to Quash the Subpoena and ruled that the Respondent should make the memorandum available under a protective order. See Transcript at 12-13. The Respondent objected to the Judge's ruling, arguing that the Authority's decision on remand protected the memorandum from disclosure, except for in camera review by the Judge. The Respondent advised the Judge that it would not provide the memorandum under a protective order. The Respondent requested permission to make a special appeal to the Authority on the issue. The Judge denied the Respondent's request. See Transcript at 17-18.

Immediately following the Judge's denial of the Respondent's request, the General Counsel requested that the Judge impose sanctions against the Respondent for its failure to comply with the protective order. Specifically, the General Counsel requested that the Judge infer that the document did not constitute advice, guidance, training or counsel within the meaning of 7114(b)(4)(C) of the Statute. See Transcript at 18.

Prior to ruling on the General Counsel's motion, the Judge asked the Respondent whether it was willing to give the document to the Judge for an in camera examination, after which the document would be submitted to the Authority under seal. The Respondent stated that it was willing to produce the memorandum for an in camera examination and offered it into evidence for the Judge's in camera inspection. The Judge ruled that the memorandum would be accepted into evidence to be reviewed by him in camera. See Transcript at 18-20. The Judge inquired as to whether any party had any objections. At this point, the General Counsel informed the Judge that it was not going to seek enforcement of the subpoena. Rather, it was "going to rely on the direct reading into the record of those comments and the offering of the document sealed." Transcript at 28.

As the Authority held in National Weather Service, the matter of sanctions, including adverse inferences for a party's refusal to produce requested documents, is within the discretion of the Administrative Law Judge. In the particular circumstances of this case, we conclude that the Judge did not abuse his discretion by deciding not to impose sanctions against the Respondent, but, instead, permitting the Respondent to furnish the disputed memorandum for his in camera examination. We further conclude that the content of memorandum was adequately and accurately described by the Judge so as to provide for meaningful, direct and cross- examination and argument for counsel for the General Counsel and the Union. Therefore, we find that the Judge's denial of the General Counsel's request for sanctions did not constitute prejudicial error. Accordingly, we affirm the Judge's ruling on the request of the General Counsel for sanctions.

B. The Requested Memorandum Was Necessary for the Union to Perform its Statutory Obligations

We note, at the outset, that there is no contention by the Respondent that the requested information is not normally maintained and reasonably available. We also note that the Respondent does not contend that disclosure of the requested document is prohibited by law. Therefore, we find that the requested information is normally maintained and reasonably available within the meaning of section 7114(b)(4) of the Statute, and that disclosure of the memorandum is not prohibited by law.

With respect to the issue before us, the Respondent argues that the Regional Director's memorandum was not necessary for the Union to process the grievance because the memorandum was "merely a recommendation[,]" and not the decision denying the employee's request. Respondent's Exceptions at 18. We reject the Respondent's argument.

As relevant here, section 7114(b)(4) of the Statute requires an agency to furnish a union, upon request, with information which is (1) normally maintained by the agency in the regular course of business; and (2) reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining. It is well established that under section 7114(b)(4) of the Statute the exclusive representative is entitled to information that is necessary to enable it to carry out effectively its representational responsibilities, including information which will assist it in the investigation, evaluation, and processing of a grievance. See generally, U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515 (1990) (Portsmouth), application for enforcement filed sub nom. FLRA v. U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, No. 90-1949 (1st Cir. Oct. 1, 1990). See also, for example, U.S. Department of the Air Force, Air Force Logistics Command, Sacramento Air Logistics Center, McClellan Air Force Base, California, 37 FLRA No. 82, slip op. at 9 (1990) (Sacramento Air Logistics Center); Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 34 FLRA 461, 462 (1990) (Dep't of Army, Hq. and Fort Bragg).

Under section 7114(b)(4) of the Statute, the Union is entitled to information which enables it to realistically assess the strengths or weaknesses of the employee's position. See, for example, U.S. Department of Labor, Office of the Assistant Secretary for Administration and Management, 26 FLRA 943, 950 (1987) (D0L). There is no requirement that information requested under section 7114(b)(4) of the Statute actually be used in a grievance, however. The union may decide not to file a grievance after it obtains and evaluates the information. Moreover, an agency's contention that the union is aware of the information contained in a requested document does not relieve an agency of its obligation to furnish the requested document. See, for example, Department of Health and Human Service, Social Security Administration, Baltimore, Maryland and Social Security Administration, New Bedford District Office, New Bedford, Massachusetts, 37 FLRA No. 108 (1990) (SSA, New Bedford District Office). Further, an agency's contention that it did not rely on requested information as a basis for its action does not relieve an agency of its obligation to furnish the requested information. See, for example, U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 37 FLRA No. 110 (1990).

In this case, the Union requested a copy of the Regional Director's recommendation concerning the employee's request for part-time employment in order to evaluate the merits of a prospective grievance. The Judge noted that there were allegations that the Regional Director was hostile towards part-time schedules for attorneys. The Judge further noted that, in making decisions on matters which affect a regional office, the Respondent's Washington D.C. office relies on and utilizes the report and recommendation of the Regional Director. The Judge concluded that the Regional Director's memorandum was necessary for the Union to determine whether other considerations, which were not included in the Respondent's written decision to the employee, may have influenced the decision. In these circumstances, we conclude that the Regional Director's recommendation was necessary for the Union to fully know and understand the basis underlying the Respondent's position on the employee's request and to determine the most appropriate course of action to take in the matter. Therefore, we find, in agreement with the Judge, that the Regional Director's memorandum was necessary within the meaning of section 7114(b)(4) of the Statute for the Union to fulfill its representational responsibilities.

C. The Requested Memorandum Does Not Constitute Guidance, Advice, Counsel, or Training Under Section 7114(b)(4)(C) of the Statute

For the reasons which follow, which differ from those of the Judge, we find that the requested memorandum does not constitute guidance, advice, counsel, or training provided for management officials relating to collective bargaining.

The Statute establishes a framework of rights and obligations for Federal employees, labor organizations and agencies and provides mechanisms for the enforcement of those rights and obligations. Under section 7114(a) of the Statute, a labor organization which has been accorded exclusive recognition is entitled to negotiate a "collective bargaining agreement" covering all employees in a unit of exclusive representation. The Statute defines a "collective bargaining agreement" as "an agreement entered into as a result of collective bargaining" under the Statute. 5 U.S.C. § 7103(a)(8). "Collective bargaining" is defined as:

the performance of the mutual obligation of the representative of an agency and the exclusive representative . . . to consult and bargain in a good-faith effort to reach agreement with respect to the conditions of employment affecting [unit] employees and to execute . . . a written document incorporating any collective bargaining agreement reached[.]

5 U.S.C. § 7103(a)(12).

Section 7114(b) provides that an agency's duty to "negotiate in good faith" includes the following obligation:

(4) . . . 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 . . . .

In examining and interpreting the relationship among subsections (A), (B), and (C) of section 7114(b)(4) of the Statute, we first note, as relevant to this case, that subsection (B) describes the nature and extent of an agency's obligation to furnish data to the exclusive representative. Section 7114(b)(4)(B) requires an agency to furnish the exclusive representative with data which is "necessary" for . . . discussion, understanding and negotiation of subjects within the scope of collective bargaining." (Emphasis added.) We further note that section 7114(b)(4)(C) sets forth a limitation on an agency's obligation to furnish data, under section 7114(b)(4) of the Statute. Section 7114(b)(4)(C) exempts from disclosure to the exclusive representative "guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining[.]" (Emphasis added.)

As stated previously, the term "collective bargaining" is defined as the "performance" of the parties' "mutual obligation" to "consult and bargain . . . with respect to the conditions of employment affecting [unit] employees . . . ." 5 U.S.C. § 7103(a)(12). The term "conditions of employment" is defined as "personnel policies, practices, and matters . . . affecting working conditions[.]" 5 U.S.C. § 7103(a)(14). We conclude, based on the ordinary meaning of the words used in the statutory definition, that collective bargaining means the process wherein the agency and the exclusive representative are engaged in the performance of their mutual obligation to bargain concerning the conditions of employment affecting unit employees. The collective bargaining process includes the negotiations conducted by the agency and the exclusive representative as well as the administration of the collective bargaining agreement. Contract administration by the agency and the exclusive representative encompasses those circumstances and situations where the parties are: (1) engaged in discussions concerning the application and interpretation of contract provisions; (2) involved in third-party dispute resolution procedures to resolve disagreements concerning the application and interpretation of the collective bargaining agreement; (3) processing grievances filed under the negotiated grievance procedure; (4) involved in the processing of unfair labor practice charges, negotiability appeals, exceptions to arbitral awards and petitions filed under the Statute; and (5) engaged in other labor-management relations activities and interactions which affect the conditions of employment of bargaining unit employees or have an impact on the union's status as the exclusive bargaining representative of the employees.

Under general rules of statutory construction, there is a presumption that the same words used twice in the same statute have the same meaning. See, for example, Sutherland on Stat Const § 46.06, at 104 (4th Ed. 1984). It is also a widely recognized rule of statutory construction that a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative, superfluous, void or insignificant. See, for example, id. Further, as a general rule, where there is doubt concerning the extent of the application of a proviso on the scope of another provision's operation, the proviso is strictly construed. See, for example, id. § 47.08, at 135.

Based on these rules of statutory construction, we conclude that the term "collective bargaining" has the same meaning in subsections (B) and (C) of section 7114(b)(4). Therefore, we find that section 7114(b)(4)(B) obligates an agency to furnish to the exclusive representative data which is "necessary for full and proper discussion, understanding and negotiation of subjects within the scope of" the collective bargaining process. Similarly, we find that section 7114(b)(4)(C) exempts from disclosure to the exclusive representative "guidance, advice, counsel or training for management officials relating to" the collective bargaining process.

We conclude also that section 7114(b)(4)(C) of the Statute constitutes a narrow exception to an agency's duty to furnish data under section 7114(b)(4) of the Statute. First, we note that this conclusion is consistent with the general rule of statutory construction, noted above, that a proviso is strictly construed. See also Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, Subcommittee on Postal Personnel and Modernization of the Committee on Post Office and Civil Service, House of Representatives, Committee Print No. 96-7, 96th Congress, 1st Session, 1979, at 995.

In addition, the courts have interpreted section 7114(b)(4)(B) as encompassing information needed by an exclusive representative to perform the full range of its representational responsibilities under the Statute. In AFGE, Local 1345 v. FLRA, 793 F.2d 1360 (D.C. Cir. 1986), for example, the U.S. Court of Appeals reversed the Authority's decision and concluded that information concerning the disciplinary separation of two employees was necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining. The court concluded that the Authority's construction of section 7114(b)(4)(B) was "far narrower than the terms of the statute itself." Id. at 1363. The court reviewed the wording of section 7114(b)(4) of the Statute and stated that "[t]his statutory mandate is perfectly consistent with the well-understood principle that, in collective bargaining, '[t]he duty to request and supply information is part and parcel of the fundamental duty to bargain. . . .'" Id. (quoting Saginaw Township Board of Education, 1970 MERC Lab. Op. 127 (Mich. Empl. Relations Comm'n)). The court stated that it was well-settled in both private and public sector labor law that an agency's obligation applied "not only to information needed to negotiate an agreement, but also to data relevant to its administration." Id. (citation omitted). The court further stated that an agency's obligation to furnish data "must be evaluated in the context of the full range of union responsibilities in both the negotiation and the administration of a labor agreement." Id. at 1364 (emphasis in original).

The court considered the agency's obligation to furnish data in light of the Union's representational responsibility. The court noted that the union represented potentially aggrieved employees. The court concluded that this obligation created a duty for an agency to provide information that would enable a union to process a grievance or to determine whether or not to file a grievance. Further, the court noted that a union represents all the members of the bargaining unit. The court concluded that this obligation created a duty for the agency to provide information to enable a union to understand the application of policies affecting unit members. Finally, the court recognized that the union had legitimate concerns with its own status as exclusive representative. The court stated that a union was entitled to information when the agency takes an action which affects its role as the exclusive representative. In summary, the court concluded that a union could not fulfill its obligation to fully represent all employees in the unit if it lacked information necessary to assess its representational rights and responsibilities.

Consistent with the views expressed by the court in AFGE, Local 1345 v. FLRA, the Authority has interpreted section 7114(b)(4)(B) as requiring an agency to release data which will enable a union to carry out effectively its representational functions and responsibilities. See, for example, SSA, New Bedford District Office, 37 FLRA No. 108, slip op. at 10-11 (requiring disclosure of sanitized performance appraisals and copies of documents and reports prepared by other employees in order to determine whether a potential grievant's appraisal was inconsistent with the appraisal's of other employees); Sacramento Air Logistics Center, 37 FLRA No. 82, slip op. at 8-9 (requiring the release of data concerning the temporary duty assignment of military personnel in order for the union to pursue an activity grievance filed on behalf of all bargaining unit employees); Portsmouth, 37 FLRA at 527-528 (requiring the release of the names and home addresses of bargaining unit employees in order, among other things, to assist the union in performing its representational functions under the Statute).

In National Weather Service, the Authority concluded that a memorandum reflecting a Labor Relations Officer's assessment and recommendations to management concerning an incident involving the discipline of a union representative constituted guidance, advice, and counsel for management officials relating to collective bargaining. In reaching the conclusion that the memorandum was exempt from disclosure under section 7114(b)(4)(C), the Authority emphasized that the Labor Relations Officer's recommendation related to a situation with "obvious labor-management relations implications." National Weather Service, 30 FLRA at 143. However, in that same case, the Authority also concluded that two other memoranda, one from the manager of the facility where the incident occurred and the other from the Chief of the Personnel Branch, to the union representative's supervisor which described the incident, were necessary for the union to determine the most effective representational course of action and effectively represent the union representative.

In light of the legislative history and established precedent concerning the scope of the agency's obligation to furnish data under section 7114(b)(4) of the Statute, we conclude that section 7114(b)(4)(C) exempts from disclosure to the exclusive representative information which contains guidance, advice, counsel, or training for management officials relating specifically to the collective bargaining process, such as: (1) courses of action agency management should take in negotiations with the union; (2) how a provision of the collective bargaining agreement should be interpreted and applied; (3) how a grievance or an unfair labor practice charge should be handled; and (4) other labor-management interactions which have an impact on the union's status as the exclusive bargaining representative of the employees. We further conclude that section 7114(b)(4)(C) does not exempt from disclosure guidance, advice, or counsel to management officials concerning the conditions of employment of a bargaining unit employee, for example: the personnel, policies and practices and other matters affecting the employee's working conditions that are not specifically related to the collective bargaining process.

Applying the foregoing interpretation of section 7114(b)(4)(C) to the facts and circumstances in this case, we conclude that the Regional Director's memorandum did not constitute guidance, advice, or counsel relating to "collective bargaining" within the meaning of section 7114(b)(4)(C) of the Statute. In so concluding, we reject the Respondent's argument that the Regional Director's recommendation pertains to collective bargaining because it involved the administration of the contractual provisions governing part-time employment.

The Regional Director's recommendation was not made in a context where the Agency and the Union were engaged in actual bargaining. Moreover, the Regional Director's recommendation was not guidance, advice, or counsel to management concerning the handling of a grievance or unfair labor practice charge. Rather, his recommendation was made in the context of and in response to a specific request of a unit employee for part-time employment. Therefore, we conclude that the Regional Director's recommendation did not constitute guidance, advice, counsel or training for management relating to collective bargaining within the meaning of section 7114(b)(4)(C). In our view, interpreting section 7114(b)(4)(C) in this manner gives meaning to the exclusive representative's right under section 7114(b)(4) to obtain data which will enable it to effectively carry out its representational functions.

VII. Summary

Section 7114(b)(4) of the Statute requires an agency to furnish the exclusive representative of its employees, upon request and to the extent not prohibited by law, information which is reasonably available and necessary for the union to carry out effectively its representational functions. In this case, there is no dispute that the requested information was reasonably available and normally maintained and that disclosure of the information was not prohibited by law. In addition, we have concluded that the Regional Director's recommendation was necessary for the Union to process the employee's grievance and that the recommendation did not constitute guidance, advice, counsel or training for management officials relating to collective bargaining within the meaning of section 7114(b)(4)(C) of the Statute.

Therefore, we find that the Respondent was required by section 7114(b)(4) of the Statute to furnish the requested memorandum, in its entirety, to the Union and its failure to do so violated section 7116(a)(1), (5), and (8) of the Statute. Accordingly, we will direct the Respondent to cease and desist from its violation of the Statute and to furnish the requested memorandum.

VIII. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the National Labor Relations Board, shall:

1. Cease and desist from:

(a) Failing and refusing to furnish the National Labor Relations Board Union, Local 6, the representative of a portion of a consolidated nationwide unit of certain employees, a copy of the January 25, 1985, memorandum from Regional Director Gerald Kobell to Joseph E. Desio, Associate General Counsel and John P. Falcone, Assistant General Counsel, concerning a unit employee's request for part-time employment.

(b) In any like or related manner, interfering with, restraining, or coercing their employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Upon request, furnish the National Labor Relations Board Union, Local 6, the representative of a portion of a consolidated nationwide unit of certain employees, a copy of the January 25, 1985, memorandum from Regional Director Gerald Kobell to Joseph E. Desio, Associate General Counsel and John P. Falcone, Assistant General Counsel, concerning a unit employee's request for part-time employment.

(b) Post at its Pittsburgh, Pennsylvania Regional Office, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Pittsburgh, Pennsylvania Regional Director and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to their respective employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region II, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail and refuse to furnish the National Labor Relations Board Union, Local 6, the representative of a portion of a consolidated nationwide unit of certain employees, a copy of the January 25, 1985, memorandum from Regional Director Gerald Kobell to Joseph E. Desio, Associate General Counsel and John P. Falcone, Assistant General Counsel, concerning a unit employee's request for part-time employment.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL furnish the National Labor Relations Board Union, Local 6, the representative of a portion of a consolidated nationwide unit of certain employees, a copy of the January 25, 1985, memorandum from Regional Director Gerald Kobell to Joseph E. Desio, Associate General Counsel and John P. Falcone, Assistant General Counsel, concerning a unit employee's request for part-time employment.

__________________________
(Activity)

Dated:________By:__________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region II, Federal Labor Relations Authority, whose address is: 26 Federal Plaza, Room 3700, New York, NY 10278, and whose telephone number is: (212) 264-4934.

---

---

---

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

---