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43 FLRA No. 46

FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.

DEPARTMENT OF DEFENSE
U.S. ARMY ARMOR CENTER AND
FORT KNOX, FORT KNOX, KENTUCKY
(Respondent/Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 2302, AFL-CIO
(Charging Party/Union)

4-CA-80425
4-CA-80992
4-CA-80994
4-CA-81033
4-CA-81076
4-CA-81114

December 19, 1991

ORDER REMANDING CASE

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This consolidated 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 Respondent filed cross-exceptions. The General Counsel filed an opposition to the Respondent's cross-exceptions and the Respondent filed a response to the General Counsel's opposition.⁽¹⁾

The consolidated complaint alleges that the Respondent violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to provide the Union with certain information and by failing to bargain in good faith. For the following reasons, we remand this case to the Judge.

II. Background

The Union represents certain of Respondent's employees, including employees of the Directorate of Engineering and Housing (DEH) and the Directorate of Logistics (DOL). The contracting out of Respondent's functions is governed by its Commercial Activities (CA) program, which is established under Office of Management and Budget (OMB) Circular No. A-76. The CA program is implemented by Army Regulation (AR) 5-20.

Beginning in 1983, the Respondent conducted CA studies of the work performed by DEH and DOL and developed a Most Efficient Organization (MEO) for that work. An MEO is "the minimum number of employees to perform the work most efficiently and is the basis for the activity's 'bid' to keep the work in-house." Judge's Decision at 4. Various documents are relevant to the MEO: (1) the Performance Work Statement, describing the work performed by the unit; (2) the Table of Distribution and Allowances (TDA), listing the number, types, and grades of positions in the unit; and (3) the Management Study, containing "recommendations on organization, operation procedures, facilities, materials, [and] technology[.]" Id. at 5.

In December 1987, in response to projected budget cuts for the following fiscal year, the Respondent requested from its headquarters office "authority to move toward the MEO." Id. at 7. The Respondent was given such authority in March 1988. In May 1988, the Respondent requested authority to conduct a reduction in force (RIF) and by letter dated May 26, 1988, the Respondent advised the Union that it had requested RIF authority. The Respondent also stated:

You will be notified prior to implementation of the [MEO] so that you may initiate . . . impact and implementation bargaining . . . . Although negotiations may be ongoing, it will not be possible to delay personnel actions necessary to accomplish the RIF.

G.C. Exhibit 35. In separate letters dated June 28, 1988, the Respondent informed the Union that it: (1) had received authority to conduct a RIF to be effective in September; and (2) was implementing the MEO structure in DEH and DOL.

By letter dated June 30, 1988, the Union requested from the Respondent "'a copy of the [MEO] structure and any revised job descriptions.'" Judge's Decision at 9. The Respondent denied the Union's request on the ground that AR 5-20, Paragraph 4-6(e)(1) prohibited the release of the information to the Union.⁽²⁾ By letter dated July 28, 1988, the Union modified its request for information to include the following:

1. The number, grades and sex of employees that will be assigned to each building, after the reorganization is implemented.

2. A copy of all revised and new job descriptions.

3. All procedures that will change because of the MEO structure.

Id. at 9-10. By letter dated August 5, 1988, the Respondent again denied the Union's request based on AR 5-20.

In August 1988, the Union submitted 130 proposals concerning the Respondent's decision to implement the MEO and the RIF, which was effected on September 25, 1988. The parties bargained over the proposals, both before and after implementation of the RIF. At the time of the unfair labor practice hearing, only 2 of the 130 proposals were unresolved.

The RIF involved over 1200 separate personnel actions. However, no full-time unit employees were separated. "Since the RIF, the MEO has been tested and large numbers of employees have been hired, repromoted, or reassigned into MEO positions." Id. at 10. Although the Respondent intended to solicit bids from outside contractors for DEH and DOL functions in November 1988, that solicitation was postponed until September 1989, after the unfair labor practice hearing in this case.

The consolidated complaint alleges that the Respondent violated the Statute by: (1) refusing to provide the Union with requested information; (2) engaging in bad-faith bargaining and dilatory tactics; (3) misrepresenting the fact that certain changes in conditions of employment were related to the MEO; and (4) changing conditions of employment without completing bargaining with the Union.⁽³⁾

III. Administrative Law Judge's Decision

A. Information Request

(1) The MEO

The Judge found that the Union's request for information encompassed the TDA and the management study. The Judge noted that the Respondent conceded that the documents were reasonably available, normally maintained, and did not constitute advice, counsel, or training provided for management officials related to collective bargaining, within the meaning of section 7114(b)(4) of the Statute.

The Judge concluded that the documents were necessary, within the meaning of section 7114(b)(4) of the Statute, because the Union needed them "to know how the reorganization would impact on jobs, duties and conditions of employment . . . ." Judge's Decision at 13. In view of his finding, the Judge found it unnecessary to examine the documents. Accordingly, the Judge denied the General Counsel's and Respondent's joint motion that they be received into evidence.

The Judge concluded that the Respondent did not violate the Statute by refusing to furnish the Union with the requested documents because, in the Judge's view, disclosure of them was prohibited by AR 5-20. The Judge stated that AR 5-20 specifically identified the TDA as "not releasable until the initial decision in a CA."⁽⁴⁾ Id. at 14. The Judge noted that although the Union's July 28 modification of its previous request did not specifically mention the TDA, "the sum [of the request] plainly equaled the TDA." Id. at 15. The Judge also noted that the "confidentiality of proprietary information in public contract procurement . . . is governed by statute[.]" Id. at 16 n.9. The Judge cited 41 U.S.C. § 423.⁽⁵⁾

The Judge rejected the General Counsel's argument that AR 5-20 did not constitute a "law" under section 7114(b)(4) of the Statute. In the Judge's view, "[t]o conclude that 'prohibited by law' does not also mean 'prohibited by regulation' is both too simplistic and inconsistent with the purpose and intent of the Statute as a whole." Id. at 18. The Judge concluded that section 7114(b)(4) "uses the word 'law' in a generic sense which includes both statutory laws and regulations." Id. at 19.

The Judge stated that Congress "provided a standard, and a means, for evaluation of agency regulations, namely, whether a compelling need exists for the particular regulation." Id. at 20. According to the Judge, unless or until the Authority determined that there was no compelling need for AR 5-20, that regulation "govern[ed] the furnishing of data . . . ." Id. The Judge noted, in this regard, that compelling need determinations may not be made in unfair labor practice proceedings. The Judge also noted and rejected the General Counsel's other arguments regarding the release of information, including the General Counsel's argument that the "ramp MEO TDA" was releasable. Id. According to the Judge, the Union never requested the "ramp TDA." Id.

(2) Job Descriptions

As noted previously, in addition to MEO-related documents, the Union requested the Respondent to provide it with copies of all position descriptions that were newly issued or revised as a result of implementation of the MEO. According to the Judge, the Respondent conceded that job descriptions were readily available and releasable. The Judge concluded that Respondent's refusal to provide the Union with the requested revised job descriptions violated the Statute.

B. Dilatory Tactics

The Judge concluded that although certain of the parties' negotiations were acrimonious, the parties continued to bargain over the RIF and implementation of the MEO and, at the time of the unfair labor practice hearing, only 2 of the Union's 130 proposals remained unresolved. The Judge found that the aspects of the complaint alleging that the Respondent engaged in dilatory tactics and bad-faith bargaining were "wholly without support" and recommended that they be dismissed. Id. at 24.

C. Misrepresentation

The Judge stated that although the "Respondent had no obligation to inform the Union when a change was MEO related; . . . good faith bargaining can not countenance misrepresentation . . . ." Id. at 24. The Judge found that the Respondent had, in response to questions from the Union as to whether certain changes were MEO-related, misrepresented and concealed the truth. The Judge held that these acts constituted bad-faith bargaining.

D. Remaining Allegations

The Judge found that the Respondent notified the Union of its intention to implement the MEO and of its request for RIF authority. The Judge also found that the "Respondent gave notice of every change and the Union was afforded the opportunity to bargain over each change individually." Id. The Judge concluded as follows:

Respondent did not implement any of these changes until bargaining was completed . . . . Only the RIF, which was governed by Article 27 of the parties' negotiated [a]greement, was implemented prior to completion of negotiations. As the parties stipulated, the Union was given notice and opportunity to bargain over each change in [DEH] and in [DOL]. Finally, the RIF was completed without the separation of a single full-time employee. The record does not, except as specifically found, reflect bad faith bargaining. Accordingly, all allegations of the Consolidated Complaint not specifically addressed are dismissed.

Id. at 28-29.

E. Remedy

The Judge rejected the General Counsel's request for a status quo ante remedy. The Judge noted that the parties bargained over each change in conditions of employment and that, as the RIF was a result of budget cuts and involved more than 1200 personnel actions, a status quo ante remedy would be "unduly disruptive." Id. at 29. The Judge stated that a prospective bargaining order was appropriate.

IV. Positions of the Parties

A. General Counsel's Exceptions

The General Counsel filed seven exceptions to the Judge's decision.

(1) Information

Three of the General Counsel's exceptions relate to the Respondent's failure to provide the Union with a copy of the TDA and the management study.

First, the General Counsel asserts that the Judge erred in concluding that disclosure of the requested documents were prohibited by law under section 7114(b)(4) of the Statute. According to the General Counsel, "the term 'prohibited by law' means just that and does not encompass rules or regulations." General Counsel's Brief at 8. The General Counsel also argues that "the Judge should have conducted an analysis of why AR 5-20 would carry the force of law." Id. The General Counsel rejects the Judge's analysis of compelling need because "[i]n an information request case there is no 'proposal' in dispute." Id. at 12.

Second, the General Counsel argues that AR 5-20 does not specifically prohibit release of the TDA or the management study. According to the General Counsel, AR 5-20 specifically prohibits release of only the in-house estimate or information from which such estimate may be derived and "merely indicates that [the TDA and the management study] normally contain information from which the in-house cost estimate can be derived and, thus, normally are non-releasable." Id. (emphasis in original). The General Counsel claims that even assuming that the TDA may not be released, disclosure of the management study is not barred by AR 5-20.

Third, the General Counsel objects to the Judge's statement that the Union did not request the "Ramp MEO." Id. at 14. The General Counsel asserts that the Union was never notified that such a document existed.

(2) Implementation of the MEO

The General Counsel excepts to the Judge's failure to find that the Respondent's implementation of the MEO and the RIF violated the Statute. Although the General Counsel acknowledges that the Respondent notified the Union of its intention to implement the MEO and the RIF, the General Counsel maintains that the Respondent's implementation of the RIF before negotiations were completed violated the Statute.

(3) Misrepresentation

The General Counsel agrees with the Judge's finding that the Respondent violated the Statute by misrepresenting or concealing the fact that certain changes in conditions of employment were related to implementation of the MEO. The General Counsel objects, however, "to the Judge's gratuitous holding that 'Respondent had no obligation to inform the Union when a change was MEO related.'" Id. at 17 (quoting Judge's Decision at 24). The General Counsel argues that the Judge had "no reason to address this issue since he found that Respondent had engaged in deliberate misrepresentation and concealment." Id. at 18.

(4) Production of the Requested Documents

The General Counsel contends that the Judge committed prejudicial error by denying the parties' joint motion that the management study and the TDA be received into evidence subject to a protective order. According to the General Counsel, examination of the documents is necessary both for resolution of the issues in this case and for enforcement of an appropriate remedy.

(5) Remedy

The General Counsel does not except to the Judge's determination not to provide a status quo ante remedy. The General Counsel notes, however, that although the Judge stated that he would provide a prospective bargaining order, the Judge's order does not so provide. The General Counsel also argues that the Judge erred by failing to provide a make-whole remedy for employees who suffered financial losses as a result of Respondent's unlawful actions.

B. Respondent's Cross-Exceptions

The Respondent filed five cross-exceptions.⁽⁶⁾

(1) Information

First, the Respondent claims that disclosure of the management study and the TDA is prohibited by both AR 5-20 and 41 U.S.C. § 423(b)(3). The Respondent rejects, in this regard, the General Counsel's assertion that the Union is entitled to a copy of a "ramp MEO." Cross-Exceptions at 8. According to the Respondent:

There is no separate document. The "ramp MEO" was merely the device used by the agency to prevent unit employee separations by allowing the roll-up of part-time temporary and intermittent employees [sic] positions into spaces for full-time employees as well as the use of overhires. It used the MEO as a basis, but varied from it to prevent separations.

Id.

Second, the Respondent claims that the Union did not request a copy of the management study and the General Counsel did not argue that such study was encompassed by the Union's information request. The Respondent argues that the Union requested, and it provided, copies of "'procedures that will change because of the MEO structure.'" Id. at 9 (quoting Judge's Decision at 10). According to the Respondent, the post-MEO-implementation procedures requested by the Union differ from the pre-MEO procedures encompassed by the management study.

(2) Bad-Faith Bargaining

The Respondent rejects the General Counsel's argument that it implemented the MEO in violation of the Statute. The Respondent maintains that it provided the Union with notice and an opportunity to bargain, as required by the Statute, and that the Judge properly dismissed these aspects of the complaint.

(3) Production of the MEO

According to the Respondent, the Judge did not commit prejudicial error by denying the parties' joint motion for receipt of the MEO into evidence. The Respondent claims that it provided the Union with appropriate notice of all changes in conditions of employment and that the MEO is not necessary for resolution of other issues in this case.

(4) Remedy

The Respondent argues that the Judge provided the proper remedy. The Respondent claims that a prospective bargaining order is unnecessary because the Agency has fulfilled its bargaining obligations and that backpay is unnecessary because no full-time employees were separated in the RIF.

C. The General Counsel's Opposition

The General Counsel argues that 41 U.S.C. § 423(b)(3) does not apply because that provision did not exist at the time the Respondent denied the Union's request. The General Counsel also argues that, although the Union did not request the management study by name, its request for procedures clearly encompassed the study. Finally, the General Counsel argues that the Respondent violated the Statute when it implemented the RIF because at the time of implementation: (1) the parties had not reached agreement; (2) there was no impasse; and (3) the Union had not waived its right to negotiate over the RIF.

V. Analysis and Conclusions

As noted previously, see n.3, no exceptions were filed to the Judge's finding that the Respondent did not violate the Statute by its actions in requiring certain unit employees to drive troop transport vehicles. Also, no exceptions were filed to the Judge's findings that the Respondent did not violate the Statute by engaging in dilatory tactics. Accordingly, we adopt these aspects of the Judge's decision.

Similarly, no exceptions were filed to the Judge's finding that the Respondent violated the Statute by failing to provide the Union with new and revised position descriptions and by misrepresenting and concealing the fact that certain changes in conditions of employment were related to implementation of the MEO. As such, we adopt these aspects of the Judge's decision also.⁽⁷⁾

Before us are issues concerning the Respondent's failure to provide the Union with information requested under section 7114(b)(4) of the Statute and the Respondent's implementation of changes in conditions of employment.

A. Information

At the outset, we reject two arguments.

First, we reject the Respondent's argument that the Union did not request a copy of the management study. As noted previously, a management study consists of "recommendations on organization, operation procedures, facilities, materials, [and] technology" used by the Agency in developing the in-house bid for work. Judge's Decision at 4-5. See also Office of Management and Budget (OMB) Circular A-76, Part III-1(A) (The "management study" seeks to "identify essential functions to be performed, determine performance factors and determine organization structure, staffing and operating procedures for the most efficient and effective in-house performance of the commercial activity."). The Union requested the Agency to provide it with, among other things, "all procedures that will change because of the MEO structure." Judge's Decision at 10. The record before us supports the Judge's conclusion that this request encompassed information from the management study and we reject the Respondent's exception to the contrary.

No exceptions were filed to the Judge's finding that the Union's request encompassed the TDA. We conclude, therefore, in agreement with the Judge, that the Union requested the TDA and the portion of the management study containing operating procedures.⁽⁸⁾

Second, we reject the General Counsel's argument that the Respondent may not rely on 41 U.S.C. § 423(b)(3) in this case because that provision was enacted after the Respondent refused to provide the Union with a copy of the requested information. It is well settled that unfair labor practice complaints are resolved on the basis of the law at the time of the Authority's decision. See National Guard Bureau and Adjutant General, State of Pennsylvania, 35 FLRA 48, 53 (1990) (Authority stated that it would no longer follow previous decisions finding certain proposals negotiable and dismissed complaint based on respondent's refusal to bargain over such proposals); Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 30 FLRA 697, 701 (1987) (Authority held that the respondent violated the Statute by repudiating parties' agreement and rejected defense that repudiation was lawful because it was consistent with law at the time of the repudiation). The General Counsel's argument provides no basis for departing from this principle in this case.

The Respondent excepts to the Judge's failure to find that disclosure of the management study and the TDA is barred by 41 U.S.C. § 423.⁽⁹⁾ The General Counsel excepts to the Judge's conclusion that disclosure of the documents is barred by AR 5-20. We will address these arguments separately.

(1) 41 U.S.C. § 423(b)(3)

41 U.S.C. § 423(b)(3) provides that, during the conduct of a Federal procurement, procurement officials may not disclose "proprietary or source selection information . . . to any person other than a person authorized by the head of such agency . . . ."⁽¹⁰⁾See n.5.

The General Counsel "concede[s] that the MEO TDA . . . is proprietary information." General Counsel's Brief at 13. It is unclear, however, whether the General Counsel also concedes that disclosure of the TDA is barred by 41 U.S.C. § 423(b)(3). See General Counsel's Opposition at 2 (General Counsel assumes, "for argument's sake, that this statute is applicable and does prohibit the release of the . . . TDA[.]"). Even if the General Counsel so concedes, the General Counsel clearly argues that 41 U.S.C. § 423(b)(3) does not prohibit disclosure of the management study.

The record before us is insufficient to determine whether disclosure of either the TDA or the management study is barred by 41 U.S.C. § 423(b)(3). First, even assuming that the TDA constitutes information which is encompassed by this provision, the record does not disclose, or provide a basis on which to determine, whether the management study also constitutes proprietary or source selection information. We note, in this regard, that although the Respondent argued that the TDA constituted proprietary information, the Respondent made no such argument regarding the management study. See Respondent's Brief to the Judge at 5. Moreover, although the Judge stated that the management study is "procurement sensitive[,]" the Judge did not explain his statement and the regulatory provision cited by the Judge in support of his statement (AR 5-20, paragraph 4-18) is not quoted by the Judge and was not made part of the record. Judge's Decision at 5.

Second, 41 U.S.C. § 423 is applicable, by its terms, "during the conduct of any Federal agency procurement of property or services." That period is defined in 41 U.S.C. § 423(p)(1) as the "earliest specific date . . . on which an authorized official orders or requests" one of a number of specified actions "and concluding with the award, modification, or extension of a contract[.]" The actions specified include, among other things, drafting procurement specifications and preparing or issuing procurement solicitations. 41 U.S.C. § 423(p)(3)(A).

According to the Judge, the Respondent intended to solicit bids in 1988 but the solicitation was postponed and, in fact, was scheduled to take place after the unfair labor practice hearing in this case.⁽¹¹⁾ The Respondent asserts, without specifying a time period or date, that it was "prepared to submit [DEH and DOL] for bidding." Cross-Exceptions at 2. However, the record does not disclose whether, at the time the Union requested and was denied the disputed information, 41 U.S.C. § 423 applied. That is, the record does not show that the Union requested and was denied information during the conduct of a Federal procurement.

In sum, the Judge did not determine, and the record does not provide an adequate basis for us to determine, whether the Union requested and was denied the TDA and the management study "[d]uring the conduct of [a] Federal agency procurement," and whether those documents constitute "proprietary or source selection information," within the meaning of 41 U.S.C. § 423(b)(3). Accordingly, we are unable to determine whether disclosure of the management study and the TDA is barred by that statutory provision.

(2) AR 5-20

We also are unable to determine whether AR 5-20 provides a defense to the Respondent's refusal to provide the Union with the requested information. Initially, however, we reject two aspects of the Judge's decision.

First, the Judge's reference to compelling need is misplaced. Under section 7117 of the Statute, the Authority determines whether there is a compelling need for an agency regulation in resolving negotiability appeals. Compelling need determinations may not be made in unfair labor practice proceedings. See generally FLRA v. Aberdeen Proving Ground, Department of the Army, 485 U.S. 409 (1988). The dispute resulting from the Agency's refusal to disclose the requested information, however, does not in any way involve a negotiability appeal or an assertion of compelling need as a bar to negotiations over Union proposals. Put otherwise, only the Agency's obligation to provide information under section 7114(b)(4) is involved; the Agency's obligation to bargain under section 7117 has not been raised and has not otherwise been asserted as relevant. Accordingly, and without addressing it further, we reject the Judge's discussion of compelling need.

Second, we disagree with the Judge's conclusion that "law," in the phrase "to the extent not prohibited by law" in section 7114(b)(4) of the Statute, includes agency regulations unless or until the Authority determines that there is no compelling need for the regulations. The Supreme Court recently stated, with regard to the Statute, that a "statute that in one section refers to 'law, rule or regulation,' and in another section to only 'laws' cannot, unless we abandon all pretense at precise communication, be deemed to mean the same thing in both places." Department of the Treasury, Internal Revenue Service v. FLRA, 110 S. Ct. 1623, 1629 (1990) (IRS v. FLRA). Section 7114 itself refers both to "laws", in subsection (b)(4), and "applicable law, rule, or regulation[,]" in subsection (c)(3). As such, in light of the Supreme Court's admonition regarding the Statute as a whole, we decline to interpret the reference in section 7114(b)(4) to "law" as including all agency regulations. Insofar as previous Authority decisions have indicated that the reference in section 7114(b)(4) to "law" includes all agency regulations, they will no longer be followed. For example, National Treasury Employees Union, Chapter 237 and U.S. Department of Agriculture, Food and Nutrition Service, Midwest Region, 32 FLRA 62, 68 (1988).

Nevertheless, that the term "law" does not encompass all regulations does not mean that the term may not encompass some regulations. In IRS v. FLRA, the Court addressed, as relevant here, the scope of the term "applicable laws" in section 7106(a)(2) of the Statute. The Court noted that it was a "permissible (though not an inevitable) construction of the statute that the term . . . extends to some, but not all, rules and regulations[.]" 110 S. Ct. at 1629 (footnote omitted). The Court remanded to the U.S. Court of Appeals for the District of Columbia Circuit the issue of whether the term "applicable laws" encompassed OMB Circular A-76. The D.C. Circuit subsequently remanded the issue to the Authority. Department of the Treasury, Internal Revenue Service v. FLRA, No. 87-1439 (D.C. Cir. May 11, 1990) (order). In National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 42 FLRA 377, 388 (1991) (Treasury), petition for review filed sub nom. Department of the Tresaury, Internal Revenue Service v. FLRA, No. 91-1573 (D.C. Cir. Nov. 25, 1991), the Authority, on remand from the D.C. Circuit, held, for reasons expressed therein, that the term "applicable laws" in section 7106(a)(2) of the Statute includes, among other things, provisions of the United States Code and rules and regulations having "the force and effect of law."

Section 7114(b)(4) of the Statute does not reference "applicable laws." Instead, section 7114(b)(4) refers to the disclosure of information which is "prohibited by law." However, we find no basis in the Statute or its legislative history for concluding that the two terms have different meanings. See IRS v. FLRA, 110 S. Ct. at 1629 (Court stated that the term "applicable" did not affect or extend coverage of the term "laws" in section 7106(a)(2) of the Statute). Accordingly, we hold that "law" in section 7114(b)(4) and "applicable laws" in section 7106(a)(1) are coextensive. As such, based on Treasury, we hold further that "law" in section 7114(b)(4) includes, among the other matters discussed therein, regulations having the force and effect of law.

Neither party presents arguments concerning whether AR 5-20 constitutes a regulation having the force and effect of law. Moreover, the record is insufficient for us to determine whether AR 5-20 constitutes such a regulation. In this regard, the Authority held in Treasury that regulations must have certain substantive and procedural characteristics in order to constitute regulations having the force and effect of law. Specifically, regulations have the force and effect of law if they: (1) are promulgated pursuant to an explicit or implicit delegation of legislative authority by Congress; (2) affect individual rights and obligations; and (3) are promulgated in accordance with applicable procedural requirements. The record before us contains no evidence or argument concerning these factors. Accordingly, we are unable to determine whether AR 5-20 constitutes a regulation having the force and effect of law so as to constitute a law, within the meaning of section 7114(b)(4) of the Statute.

With respect to the latter point, section 7114(b)(4) requires agencies to disclose certain information unless disclosure is "prohibited" by law. It is clear that, as conceded by the General Counsel, AR 5-20 prohibits the disclosure of the "in-house cost estimate, or information from which it could readily be derived[.]" See n.2. It is also clear that AR 5-20 does not "prohibit" release of the TDA or the management study; it provides only that these documents are "normally not releasable[.]" See n.4. The Judge's statement that AR 5-20 specifically prohibits release of the TDA is unsupported and we reject it.

Therefore, to determine whether AR 5-20 provides a defense to the Respondent's refusal to furnish the Union with the requested information, it is necessary to determine whether the information requested by the Union constituted information from which the in-house cost estimate could have been derived. In this regard, the Judge's decision is contradictory. The Judge states first that there was "no dispute that the MEO TDA is procurement sensitive." Judge's Decision at 14. The Judge also states, however, that, according to the General Counsel, the "'claim that the TDA is procurement-sensitive is suspect[.]'" Id. (quoting General Counsel's Brief to the Judge at 29). The Judge concludes, in this regard, that there was "no disagreement that the MEO . . . was procurement sensitive even if some part of it were not . . . ." Id. Although the Judge concludes that disclosure of the requested information is barred by AR 5-20, the Judge specifically addressed only the TDA and, as to this point, relies on his erroneous interpretation of the regulation as expressly prohibiting release of that document.

Put simply, we are unable to discern from the Judge's decision, or the record as a whole, whether disclosure of the information requested by the Union is prohibited by AR 5-20. We likewise are unable to determine whether, if disclosure of the information is prohibited by AR 5-20, that regulation has the force and effect of law as to constitute "law," within the meaning of section 7114(b)(4) of the Statute.

(3) Summary

The record before us is insufficient to determine whether disclosure of the information requested by the Union is barred by 41 U.S.C. § 423(b)(3). Similarly, we are unable to determine, based on this record, whether such disclosure is barred by AR 5-20 and, if so, whether AR 5-20 constitutes a regulation having the force and effect of law. Accordingly, we will remand this matter to the Judge for further proceedings consistent with this decision.

In reaching our conclusion, we note that we are, in part, unable to determine whether disclosure of the requested information is barred by 41 U.S.C. § 423 or AR 5-20 because the requested information is not before us. The Judge, based on his analysis of the issues in this case, found it unnecessary to examine the requested information and denied the General Counsel's and the Respondent's joint motion that the documents be received into evidence under a protective order.

It is within the discretion of the judge presiding at a hearing to decide whether disputed documents should be received into evidence under a protective order or examined by the judge in camera. See U.S. Department of the Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Chicago, Illinois District Office, 40 FLRA 1070, 1079 (1991). In cases such as the one before us, we believe that it is preferable practice for a judge to receive into evidence disputed documents in order that, if necessary, the documents may be examined by the Authority on exceptions. However, in view of our decision to remand the portion of the complaint encompassing this issue to the Judge, we need not, and do not, address whether the Judge abused his discretion by denying the parties' joint motion for admission of the documents into evidence.

B. Implementation of the MEO

The General Counsel asserts that the Judge "failed to rule on . . . [the] allegation that the implementation of the MEO, in and of itself, constituted a violation of the Statute." General Counsel's Brief at 15. The General Counsel asserts also that the Judge erred by failing to find that the Respondent violated the Statute by implementing the MEO, including the RIF, because the parties' negotiations were not complete at the time of the implementation.

The Judge found that the Respondent gave the Union notice and an opportunity to bargain over every change in conditions of employment resulting from implementation of the MEO in DOL and DEH. The Judge found also that the parties bargained over each of the Union's 130 proposals and, with 2 exceptions (as to which the underlying changes were not implemented), reached agreement on all matters. According to the Judge, "[o]nly the RIF, which was governed by Article 27 of the parties' negotiated [a]greement . . . , was implemented prior to completion of negotiations." Judge's Decision at 28-29. The Judge concluded that the record did not "reflect bad faith bargaining[]" as to these matters and, as a result, dismissed all portions of the consolidated complaint not otherwise addressed. Id.

In view of the foregoing, we reject the General Counsel's argument that the Judge failed to resolve the portion of the consolidated complaint relating to implementation of the MEO. In our view, the Judge resolved this allegation by concluding that the Respondent did not violate the Statute in implementing the MEO, including the RIF. Moreover, in view of the Judge's undisputed findings that the Respondent provided the Union with notice of every change in conditions of employment and bargained over all such changes, we find, with one exception, no basis on which to disagree with the Judge's dismissal of these portions of the consolidated complaint.

As for the one exception, the Judge's reasons for concluding that the Respondent did not violate the Statute by implementing the RIF are unclear. The Judge stated, in this regard, only that the RIF was "governed" by Article 27 of the parties' collective bargaining agreement and was completed without necessitating the separation of any full-time employees.

The duty to bargain under the Statute requires that, "absent a clear and unmistakable waiver of bargaining rights, parties satisfy their mutual obligation to bargain before implementing changes in conditions of employment of unit employees." National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA 392, 395 (1990). Accordingly, with certain exceptions, an agency may not effect changes in conditions of employment without agreement of the union. The exceptions include, among others, situations where "the union has not timely requested bargaining or timely requested the services of the Federal Service Impasses Panel, or where implementation is consistent with the necessary functioning of the agency." Id. at 396 (citation omitted).

In applying this framework to the case before us, we note first that there is no dispute that the implementation of the RIF constituted a change in conditions of employment of unit employees. As such, the fact that the RIF did not result in the separation of any full-time employees is irrelevant to determining whether the Respondent violated the Statute by implementing the RIF. It also appears that, at the time the RIF was implemented, the parties were bargaining over that matter and others related to implementation of the MEO.

As noted, the Judge concluded that the RIF was "governed" by Article 27 of the parties' agreement. However, the Judge did not address how that finding supported a conclusion that the Respondent did not violate the Statute.⁽¹²⁾ In addition, the Judge made no findings regarding the Respondent's assertion that implementation of the RIF was consistent with the necessary functioning of the agency. See Respondent's Brief to the Judge at 8 (Respondent asserts that, at the time the RIF was implemented, it faced an "emergency" involving personnel imbalances and budget cuts). See also Cross-Exceptions at 11 (Respondent asserts that implementation resulted from a "position of operational exigency.").

The basis for the Judge's conclusion that the Respondent did not violate the Statute by implementing the RIF is unclear. Moreover, the Judge made no findings regarding the Respondent's assertion that implementation of the RIF was privileged because it was consistent with the necessary functioning of the agency. Accordingly, noting that we are remanding other aspects of the consolidated complaint to the Judge, we will remand this aspect also.

VI. Order

The consolidated complaint is remanded to the Judge for further proceedings consistent with this decision.⁽¹³⁾

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

1. As the Authority's regulations do not provide for the filing of responses to oppositions, the Respondent's response has not been considered.

2. AR 5-20, Paragraph 4-6(e)(1) provides:

e. Release of information in CA cost studies.

(1) In carrying out CA cost studies, the confidentiality of both the in-house cost estimate and the contract prices will be maintained to ensure complete independence of the two. This confidentiality will be maintained until the cost comparison is completed and the initial decision is announced. Persons who have knowledge of the estimated in-house cost will not take part in the negotiation or source selection process. The in-house cost estimate, or information from which it could readily be derived, will not be released before the initial decision to--

(a) The public.

(b) Potential contractors.

(c) Employee unions.

(d) Anyone other than those persons who have a need-to-know because they will prepare or review the estimate.

3. The complaint also alleges that the Respondent violated the Statute by requiring certain unit employees to drive troop transport vehicles. The Judge concluded that the Respondent's actions in connection with this matter, which was unrelated to the RIF or the MEO, did not violate the Statute. As no exceptions were filed to the Judge's conclusion, we will dismiss this aspect of the complaint without further discussion.

4. The Judge relied on AR 5-20, paragraph 4-6(e)(6), which provides, in pertinent part:

(6) The categories of CA information below are provided for guidance in determining what information normally should be treated as exempt from release.

(a) Information that discloses in-house cost estimates and, therefore, is normally not releasable until the initial decision in a cost study includes--

1. The in-house cost estimate.

2. The management study that developed the MEO used for the in-house cost estimate.

3. The proposed TDA for the MEO.

4. Budget data for the activity that show the projected operating costs or personnel resources.

(b) Information that may disclose the in-house cost estimate and may not be releasable in certain situations includes--

1. A current approved TDA showing . . . the in-house organization as it will be organized under the MEO.

2. Preliminary management studies, manpower surveys, or other management actions that were used to develop the MEO.

3. Proposed personnel actions . . . that may disclose the cost of operation under the MEO.

5. It is apparent that the Judge was referring to 41 U.S.C. § 423(b)(3), which provides that, during the conduct of a procurement of property or services, procurement officials may not knowingly:

(3) disclose any proprietary or source selection information regarding such procurement directly or indirectly to any person other than a person authorized by the head of such agency or the contracting officer to receive such information.

6. It is clear that, except with respect to the matter of disclosure of information (the first two exceptions), the submission constitutes an opposition to the General Counsel's exceptions. We will address it accordingly.

7. We agree with the General Counsel that, in view of the Judge's findings that the Respondent misrepresented and concealed the fact that certain changes were MEO-related, it was unnecessary for the Judge to address whether the Respondent was obligated to inform the Union, in advance, as to whether all changes were so related. Therefore, we do not adopt the Judge's statement regarding that matter.

8. It is apparent from the record before us that there was at no time a document or documents identified as a "ramp MEO." Accordingly, we reject the Judge's statement to the contrary and find that the Union's request for information encompassed documents related to the MEO, both as developed and as ultimately implemented by the Respondent.

9. Although the Judge cited 41 U.S.C. § 423 as support for his statement that the confidentiality of certain information is governed by statute, nothing in the decision supports a conclusion that the Judge found disclosure of the documents barred by that provision. Instead, it is clear that the Judge found that disclosure was barred by AR 5-20.

10. 41 U.S.C. § 423(p)(6) defines "proprietary information" as:

(A) information contained in a bid or proposal;

(B) cost or pricing data; or

(C) any other information submitted to the Government by a contractor and designated as proprietary . . . .

41 U.S.C. § 423(p)(7) defines "source selection information", in relevant part, as:

[I]nformation determined by the head of the agency or the contracting officer to be information--

(A) the disclosure of which to a competing contractor would jeopardize the integrity or successful completion of the procurement concerned; and

(B) which is required by statute, regulation, or order to be secured in a source selection file or other restricted facility to prevent such disclosure[.]

11. The record contains no information as to whether, in fact, bids were solicited or, if they were, the result of the solicitation.

12. As noted by the General Counsel, the Respondent did not argue in this proceeding that Article 27 constituted a clear and unmistakable waiver of the Union's bargaining rights.

13. The General Counsel's request for a make-whole remedy relates to the Respondent's alleged unlawful implementation of the RIF. As we are remanding this aspect of the complaint to the Judge, we do not address either the request or what other remedies may be appropriate for such a violation. On remand, the Judge also should address, as necessary, the provision of a prospective bargaining order to remedy the Respondent's unlawful misrepresentation and concealment of the relation between certain changes in conditions of employment and implementation of the MEO.

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