[ v12 p390 ]
12:0390(84)CA
The decision of the Authority follows:
12 FLRA No. 84
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION, FIELD ASSESSMENT
OFFICE
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No.: 4-CA-620
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in
certain unfair labor practices and recommending that it be ordered to
cease and desist therefrom and take certain affirmative action. The
Judge further found that the Respondent had not engaged in certain other
alleged unfair labor practices and recommended dismissal of the
complaint with respect to them. The Charging Party filed a timely
exception limited to the Judge's recommended 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 Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, and noting particularly the
absence of exceptions with respect thereto, the Authority hereby adopts
the Judge's findings and conclusions. The Authority also adopts the
Judge's recommendations except as modified below.
In its exception, the Charging Party asserts that the literal wording
of the recommended Order would require posting of the Notice at only one
of the Respondent's Field Assessment Offices and argues that the Order
should require that the Notice be posted at all of the Respondent's
Atlanta Region Field Assessment Office installations. The Authority
agrees, noting specifically that the travel practices study in issue was
conducted in each of the five satellite offices of the Atlanta, Georgia,
Field Assessment Office and the absence of any opposition to the
Charging Party's exception.
Accordingly, the Authority has amended the recommended Order herein
to include the posting of Notices to Employees at all of the Atlanta
Region Field Assessment Office Installations.
ORDER
Pursuant to section 2424.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service-Management Relations Statute, it is hereby ordered that the
Department of Health and Human Services, Social Security Administration,
Field Assessment Office, Atlanta, Georgia shall:
1. Cease and desist from:
(a) Failing and refusing to provide to the American Federation
of Government Employees, AFL-CIO, those portions of any available
1980 reports on the travel practices of the five satellite offices
of the Atlanta, Georgia, Field Assessment Office, which contain
factual findings.
(b) In any like or related manner, violating section
7116(a)(1), (5), and (8) of the Federal Service Labor-Management
Relations Statute.
2. Take the affirmative action:
(a) Upon request, provide to the American Federation of
Government Employees, AFL-CIO, those portions of any available
1980 reports on the travel practices in the five satellite offices
of the Atlanta, Georgia, Field Assessment Office, which contain
factual findings.
(b) Post, at all of the Atlanta Region Field Assessment Office
Installations, 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 Director, or his
designee, and posted and maintained for 60 consecutive days
thereafter, in conspicuous places, including all bulletin boards
and other places where notices 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 IV, Federal
Labor Relations Authority, in writing within 30 days from date of
this Order, as to what steps have been taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that the remaining allegations in Case
No. 4-CA-620 be, and they hereby are, dismissed.
Issued, Washington, D.C., July 29, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to provide to the American Federation of
Government Employees, AFL-CIO, those portions of any available 1980
reports on the travel practices of the five satellite offices of the
Atlanta, Georgia, Field Assessment Office, which contain factual
findings. WE WILL NOT, in any like or related manner, violate Sections
7116(a)(1), (5), and (8) of the Federal Service Labor-Management
Relations Statute. WE WILL, upon request, provide to the American
Federation of Government Employees, AFL-CIO, those portions of any
available 1980 reports on the travel practices in the five satellite
offices of the Atlanta, Georgia, Field Assessment Office, which contain
factual findings.
(Agency or Activity)
Dated: . . . BY: (Signature) 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 any employee have any
questions concerning this Notice or compliance with any of its
provisions, they may communicate directly with the Regional Director of
the Federal Labor Relations Authority, Region IV, whose address is:
1776 Peachtree Street, NW., Suite 501 - North Wing, Atlanta, Georgia,
20209; and whose telephone number is: (404) 881-2324.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 4-CA-620
Wilson G. Schuerholz,
Representative for the Respondent
Barbara S. Liggett,
Attorney for the General Counsel
Barry Nelson,
Representative for the Charging Party
Before: ISABELLE R. CAPPELLO
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, 92 Stat. 1191 (1978), 5 U.S.C. 7101 et seq., (Supp.
III, 1979) (hereinafter referred to as the "Statute") and the Rules and
Regulations of the Federal Labor Relations Authority (hereinafter, the
"Authority"), 5 CFR 2410 et seq.
By a Complaint dated July 16, 1981, the General Counsel of the
Authority alleges that Respondent has engaged, and continues to engage
in certain unfair labor practices, in violation of Sections 7116(a)(1),
(5), and (8) of the Statute. /1/
The complaint is grounded on a charge filed by the Charging Party on
October 6, 1980, and amended on December 12, 1980. The acts alleged to
constitute the violations concern repeated failures to provide the
American Federation of Government employees, AFL-CIO (hereinafter, the
"Union" or the "Charging Party") with information concerning a study of
travel practices conducted in Respondent's Field Assessment Office
("FAO") in Atlanta, Georgia. Respondent bases its defense on
allegations that it gave the Union the final result of the study; that
certain underlying material is not the kind of data kept "on a regular
basis;" and that the only other material sought is "part of management's
process for coming up with the final report" and is not "relevant and
necessary for National bargaining." See TR 13-14.
A hearing was held on December 3, 1981, in Atlanta, Georgia. The
parties appeared, adduced evidence, and examined and cross-examined
witnesses. Briefs were filed on behalf of Respondent, on December 30,
and on behalf of the General Counsel, on December 29. Based upon the
record made at the hearing, my observation of the demeanor of the
witnesses, and the briefs submitted, the following findings of fact and
conclusions of law are entered, and order recommended.
Findings of Fact /2/
1. Respondent is an activity of an Executive agency of the United
States. The Union is a labor organization which, since August 30, 1979
has been certified as the exclusive representative of certain employees
of the Social Security Administration, in a nationwide unit, including
employees in its Atlanta, Georgia, region.
2. The Social Security Administration is organized into six
components, one of which is Field Assessment, managed by an Associate
Commissioner from the Headquarters Office in Baltimore, Maryland. Field
Assessment has 10 regional offices, managed by Directors, also called
Field Assessment Officers. One of the regional offices is in Atlanta,
Georgia. The Atlanta region covers eight States and operates five
satellite offices, in College Park, Georgia; Birmingham, Alabama; St.
Petersburg, Florida; Raleigh, North Carolina; and Nashville,
Tennessee. Maxine McNutt has been the Director of the Atlanta region
since January 1980. Her office is divided into two staffs-- Evaluation
Staff and Field Integrity Staff. It is also organized into two
divisions. The division here concerned is that of Eligibility Quality.
3. Barry Nelson is the Union's Regional Vice-President, for the
Atlanta region, and its highest-ranking official in the Atlanta region.
He also holds a national-level office in the Union.
4. Since around June 10, 1980, the Union and the Social Security
Administration have been in the process of negotiating a master
agreement. They presently operate under an interim agreement, signed in
November 1979. The national negotiations are taking place in Baltimore,
Maryland. Union proposals were submitted in April, and cover such
matters as travel, the adequacy of per diem, hours travelled on an
employee's own time, and overtime.
5. Travel became a matter of discussion between Ms. McNutt and Mr.
Nelson shortly after she became Director, and have continued since that
time. A focus of the discussions has been the inadequacy of per diem,
particularly during the winter months in Florida. These inadequacies
are handled on a case-by-case basis, as Mr. Nelson brings them to the
attention of Ms. McNutt.
6. During the month of February 1980, a study of travel practices
was conducted by analysts of the Evaluation Staff of the Atlanta region,
at the Birmingham and College Park offices. The analysts of the
Evaluation Staff, and the employees they interviewed during the reviews,
are all bargaining-unit employees represented by the Union.
7. On February 20, 1980, Mr. Nelson wrote a letter to Ms. McNutt
about a "Proposed Unfair Labor Practice Charge" arising out of the
"onsite reviews in the area of travel practices," which were conducted
at the Birmingham and College Park offices. (GCEx-3) He objected that
the interrogation of employees went beyond travel practices, the stated
purpose of the reviews, and into such matters as performance standards
and evaluations. He asked about the intent and purpose of gathering the
information; what information was gathered; and how she proposed to
utilize it. He requested that no action be taken on the basis of the
information received until he "had an opportunity to review and study
the information (her) staff gathered." He asked to meet and confer with
her regarding the issue, but did not expressly request that she furnish
copies of the information gathered.
8. On March 7, 1980, Ms. McNutt replied to the February 20 letter.
She explained that the "role of the Evaluation Staff (was), of course,
to obtain and analyze data to determine whether new or revised (travel)
procedures should be recommended." (GCEx-4) She informed him that
subjects such as performance standards were discussed because an
analysis of travel vouchers determined that employees, working in the
same territory, were completing cases at considerably different rates.
She assured him that she would review staff findings and
recommendations, after receipt of the final report from the Evaluation
Staff, and would notify him of any changes in travel procedures found to
be desirable.
9. By memorandum, on March 27, 1980, the Associate Commissioner
ordered all Field Assessment Officers to conduct a review of travel
practices, in each component within their region, which should result in
"an item specific report to the Field Assessment Officer." (Attachment
to REx-3) He ordered each Field Assessment Officer to send to him, "a
summary of the findings and recommendations being made locally, as well
as any recommendations for related OA central office action." He stated
that a "national overview" would then be prepared. Study guidelines
were attached to the memorandum, to assist in carrying out the review.
The "regional summaries" were to be forwarded by the end of May.
10. At the time the Atlanta region received the March 27 memorandum
from the Associate Commissioner, it already had "individual reports" on
travel practices in the Birmingham and College Park offices. The
reports were in various forms. Information relevant to what the
Associate Commissioner wanted was extracted from these reports. "Draft
reports" were then prepared by the analysts for "review" of the
Evaluation Staff Director before the regional summary was prepared. (TR
85-86)
11. On April 9, 1980, Ms. McNutt and Mr. Nelson met to discuss
various labor-management matters, including the travel study being
conducted. Mr. Nelson requested "a sanitized copy of reports and
findings of the review. . . . " (GCEx-18 and see also TR 99-100).
12. On May 6, 1980, Ms. McNutt sent identical memorandums to the
managers of the Raleigh, St. Petersburg, and Nashville offices, with
copies to Mr. Nelson. She informed them of on-site reviews to be made
by a member of the Evaluation Staff between May 13 and May 21. Each
memorandum concluded with the sentence: "Attached you will find a copy
of the survey form which will be used during his visit." (GCEx-5, 6 and
7) The survey form is entitled "QRS Questionnaire." (GCEx-8) It bears no
form number and does not appear to be a printed form. "QRS" refers to
Quality Review Specialists, the employees whose travel was being
reviewed. The Questionnaire was composed of 20 parts, subdivided into
"Itineraries" and "Travel Vouchers." A space for an answer was left
after each part. Such questions were posed as: "What travel problems
are unique to the area served by this (satellite office);" and "In areas
designated as high rate, do you pay more than $19 a night to get lodging
(and i)f so, specify the areas and the amount you pay." (GCEx-4) Ms.
McNutt characterized the questionnaires as "a guideline" to be used by
the analysts in their line of questioning (TR95), and as a "note-taking
device." (TR 81) No region other than Atlanta utilized the
questionnaires. The Atlanta region felt the questionnaires would be
helpful because the analysts assigned to make the onsite reviews were
unfamiliar with the organization being reviewed and, for the most part,
were new at the job of making surveys and analyses.
13. There is no evidence of record that any analyst ever used the
questionnaires or that any management official ever saw a completed
questionnaire. Ms. McNutt assumes that any which were completed have
been destroyed, pursuant to agency policy that employees destroy notes
after a draft report is complete. If any remain, they would be in the
possession of the analysts who drafted the reports on satellite offices
visited.
14. Apparently no statistical summary of the completed
questionnaires was prepared. See TR 94-95. The Union first learned, at
the hearing, that management did not have possession of any completed
questionnaires.
15. The analysts prepared draft reports for review by the evaluation
Staff Director. The Director returned the report to the analysts,
through their supervisors, for "any modification." (TR 81) Normally,
drafts are purged from the files after completion of a report.
16. A "component report" was ultimately produced on each of the
satellite offices, and submitted to the Evaluation Staff Director. (TR
86) The reports do not follow the format of the questionnaires. They
follow the guidelines received from headquarters. The reports contain
factual findings, as well as "opinions, evaluations by the Analysts in
terms of any strengths and weaknesses, in terms of management carrying
out its responsibilities as it related to the travel regulations and
policies and procedures." (TR 86) They are "interspersed with management
comments." (TR 87)
17. The component reports were consolidated into a "summary report
for the Region" (TR 86), which was forwarded to headquarters on May 20,
1980, with a copy to Mr. Nelson. Apparently not all items in the
component reports made their way into the summary report. At the time
Ms. McNutt reviewed the summary report, she saw the component reports
and memorandums between herself and the Evaluation Staff.
18. The memorandums seen by Ms. McNutt were "based on findings" of
the analysts. (TR 94) The memorandums were exchanged, "if necessary,"
to be sure that everything was "in perspective," and that management
"understood what was going on." (TR 87) The extent, if any, to which the
memorandums contained facts discovered in the course of the reviews is
unclear from the record.
19. At the time of the hearing, the only thing remaining in
management files is some "inter-management comments relating to the
(summary) report that was submitted from the Evaluation Staff to (Ms.
McNutt) based upon review of the records and the visits by the
components." (TR 97) There might also be a component report from one of
the offices which was visited after the summary report was forwarded to
headquarters. See TR 93-94.
20. On June 23, 1980, Mr. Nelson sent a memorandum to Ms. McNutt on
the subject: "QRS Questionnaire, (FOIA Request)." (GCEx-10) He
requested "all information, including any letter, memoranda, note(s),
minutes, recordings of meetings, reports, directives, studies,
evaluations, reviews, and any other information which relates directly
or indirectly to said visit(s)." The "visits" were the onsite reviews of
May 13-21 at the Raleigh, St. Petersburg, and Nashville offices.
21. On July 15, 1980, Ms. McNutt sent a letter to Mr. Nelson about
his request that "no implementation based on recommendations resulting
from FAO travel reviews be undertaken until any proposed changes are
negotiated." (GCEx-11) She also referred to his request that
"information which relates to any proposed changes be furnished." She
referred to the "report" made to the Associate Commissioner, and that
she had sent him a copy. She assured him that no changes impacting on
working conditions would be implemented until the Union was consulted.
There is some doubt as to just what requests of Mr. Nelson were being
addressed in the July 15 letter. See TR 34-35.
22. At the time Mr. Nelson received the July 15 letter, he was going
back and forth between his office, in Birmingham, and the national
negotiations, being conducted in Baltimore, Maryland. He forgot about
the letter.
23. On August 15, 1980, Mr. Nelson sent another letter to Ms.
McNutt. He referred to his June 23 request for information, and his
being at a loss to understand why he had not been furnished it. He
wrote: "I know that the subject questionnaire are readily available in
the Regional Office in Atlanta. . . . " (GCEx-12) He stated that the
information was "necessary in order for this Union to fulfill (its)
responsibilities of representation as mandated by the Federal Service
Labor Relations Statute."
24. On August 18, 1980, Respondent's Freedom of Information Officer
sent to Mr. Nelson a letter denying Mr. Nelson's June 23 FOIA request,
on the ground that it was exempt from disclosure as "deliberative
privilege" of an agency. Mr. Nelson was informed of his right to appeal
under Subpart G, 45 CFR Part 5. See GCEx-13. No appeal was taken.
25. Mr. Nelson was advised by the Union's national office to utilize
Section 7114(b)(4) of the Statute to obtain the information being
sought.
26. On September 4, 1980, Mr. Nelson again wrote to Ms. McNutt on
the subject of the "QRS Questionnaire." (GCEx-14) He requested "all
information, including the questionnaires, which may relate either
directly or indirectly to said visit(s)." The visits referred to were
the onsite reviews of May 13-21 made at the Raleigh, St. Petersburg, and
Nashville offices, "regarding travel practices." The request was
specifically made under 5 U.S.C. 7114(b)(4), on the ground that "the
requested information is necessary for this Union to fulfill its
responsibilities of representation as mandated by the Federal Service
Labor Relations Statute."
27. On September 15, 1980, Ms. McNutt replied to the Nelson request
of September 4. She stated that the request could not be honored, at
that time, as management was "still formulating its proposed policies."
(GCEx-15) She stated that she would give the Union an opportunity to
exercise its bargaining rights, when the proposal was ready. She
enclosed "copies of the questionnaires used in collecting travel
information." These copies were the blank forms sent to the analysts.
28. On October 2, 1980, Mr. Nelson requested "all information
collected and the report(s) made" regarding the onsite reviews of the
Birmingham and College Park offices, during February, and concerning
travel practices. (GCEx-16) Mr. Nelson advised her that "the issue of
travel is one of the Articles on the table for National negotiations."
He made the request under 5 U.S.C. 7114(b)(4). He stated that it was
needed "in order for this Union to fully represent the bargaining-unit
employees."
29. On October 17, 1980, Ms. McNutt replied to the October 2 request
of Mr. Nelson. She advised him that the travel information collected
was part of the travel study previously requested by him and that
management was studying it and anticipated making a decision about it
during the first half of the fiscal year. She stated that the
bargaining unit would be able to exercise its bargaining rights when
management agreed on a proposed policy. See GCEx-17.
30. At the hearing, Mr. Nelson gave a number of reasons for
requesting the information relating to the travel study. The Union was
concerned "about the adequacy of per diem" and "a lot of the questions
which were asked (by the analysts) potentially or they actually did
address a lot of the issues that were currently being proposed at the
national level." (TR 38) The information sought from employees by the
Questionnaire dealt with such matters as the number of cases that could
be completed on a travel day, and with travel problems unique to each
office, as well as common ones. Since the Questionnaires were given to
the Evaluation Staff analysts, a number of changes have been proposed.
In Mr. Nelson's view: "A number of these proposals mirrored the
information that was gleaned on those questionnaires." (TR 40)
31. What Mr. Nelson really wants is the "questionnaires", or "the
data that was gathered by questionnaires." (TR 42) He does not feel that
it "would necessarily be appropriate to have Management's comments" on
the reports, although he would "always like to get those . . . ." (TR 42
and see also TR 67)
Union attempts to obtain travel-study information at the national level
32. On July 28, 1980, the President of the National Council of Field
Assessment Locals made a written request for "any and all reports,
memoranda, review, records, notes, minutes, study, evaluation, etc."
which related to the "FAO Travel Reviews." (REx-2) The request was made
pursuant to Section 7114(b)(4) of the Statute.
33. On August 14, 1980, a "Summary of FAO Travel Practices Review"
was sent to the Associate Commissioner by the Office of Evaluation on
the "FAO travel practices studies conducted by the FAO Evaluation
Staffs." (REx-3 attachment dated 8/13/80) It refers to "(i)tem specific
reports" prepared for each Field Assessment Office and "summary reports"
sent by the Field Assessment Officer to the Office of Evaluation. The
summary report made by the Office of Evaluation recapped the major
findings and actions extracted from the individual reports.
34. On September 8, 1980, at the national level, the Union was
furnished a copy of the "guidelines" issued in the travel review; the
"summary report of reviews of FAO travel practices performed in each
region except Boston;" and the "travel audit" from the Boston region
(REx-2) Mr. Nelson, as a national officer, received a copy of this
material. The Union felt that the material gave it "the broad
perspective." (TR 51) The Union was orally advised that the regions
would have more information, and to go to the regions for it.
35. On October 12, 1981, Mr. Nelson wrote to the Associate
Commissioner and requested "the information upon which you prepared that
summary report of reviews of FAO travel practices performed in each
region, except Boston (which had already been furnished)." (REx-5) The
request was made under the Statute, and because the issue of travel was
"on the table at National Negotiations."
36. On October 14, 1980, the Associate Commissioner denied the
October 12 request. The ground for denial was that "the summary report
of the review of FAO travel practices which we have already provided is
sufficient for the Council's purposes . . . ." (REX-6) A further reason
given was that the additional material sought constituted "internal
investigative reports" which need not be made public under the Freedom
of Information Act.
37. On October 30, 1980, the Union filed an unfair labor practice
charge based upon the October 14 denial by the Associate Commissioner.
This charge was subsequently withdrawn for several reasons. One was
that the Union understood that the information it really wanted was in
the regions, and should be sought at the regional level. Another was
that changes being proposed did not apply across the board, nationally.
Another reason was that it did not want to jeopardize the bargaining
relationship at the national level.
38. On August 13, 1981, the Union filed another unfair labor
practice against the Associate Commissioner. One basis of the charge
was that the Union's National Council was bypassed when changes were
made in travel practices in at least 6 regions, including Atlanta.
Another was a failure to provide relevant and necessary information, in
violation of the Statute. This charge was also withdrawn by the Union
because it was felt that the charge should be against the regions. A
charge against one of the regions, Philadelphia, has been filed and is
under investigation.
Discussion and Conclusions
Section 7114(b)(4) of the Statute establishes a duty to furnish
information to a union, as an incident to the agency's obligation to
negotiate in good faith. The duty is not unlimited, however. The
information sought must meet certain criteria. The data sought must be
of the sort normally maintained in the regular course of business
(subpart (A)); it must be reasonably available and necessary for full
and proper discussion, understanding, and negotiation of subjects within
the scope of collective bargaining (subpart (B)); and it must not
constitute guidance, advice, counsel, or training provided for
management officials or supervisors, relating to collective bargaining
(subpart (C)).
1. As to the questionnaires
What the Union really wants, in this proceeding, are questionnaires
distributed by management to its analysts for use in interviewing
employees about travel practices. The questionnaires, however, fail to
meet one of the criteria-- that of being data normally maintained in the
regular course of business. These questionnaires are not standard
forms, which an agency regularly uses and would normally maintain, such
as travel vouchers or payroll records. They were formulated by the
agency as a guide to inexperienced analysts, for a particular project,
and as an aide to them in preparing reports on the project. Agency
management did not require the analysts to use the questionnaires, or to
turn them in with their reports. Agency management is not sure that any
analyst ever used a questionnaire. No analyst testified to using one;
and no agency management official testified to seeing a completed one.
The analysts are bargaining-unit employees, who were required to turn in
a written report containing their findings. Thus, there was no need for
management to see the questionnaires which may have been used in
preparing the reports.
2. As to the component reports
The reports turned in by the analysts do meet the statutory criteria
for information which the agency must supply to the Union, at least to
the extent that they contain factual findings as to travel practices in
each office of the Atlanta region. These reports were used by agency
management in preparing the regional summary report for headquarters.
They would contain facts elicited from employees about per diem problems
in high-rate areas, as well as travel problems unique to the area served
by each office. The Atlanta region would normally be expected to
maintain such valuable information in its files for use in the recurring
discussions which take place with regional union officials over travel
problems in the region. This is particularly so, since the summary
report on all the offices, would not, by its nature as a summary,
contain the detail on such pressing collective-bargaining issues. Thus,
the subpart (A) criterion is met by the component reports.
At least until May 20, 1980, when the summary report went forward to
headquarters, the component reports met the subpart (B) criterion of
being "readily available" to management at the time, on April 9, when
the Union requested a sanitized copy of "reports" and findings of the
travel study. See finding 11, above. The factual findings in the
component reports would have included any unique travel problems in the
area served by the office and, in particular, any per-diem problems--
topics under recurring discussion between labor and management since
January 1980. Thus, these findings would be "necessary" to collective
bargaining, the other subpart (B) element.
Of course, the reports were interspersed with management comment and
analysts' opinions and evaluations; and such information was not shown
to be "necessary" to collective bargaining. This does not present an
insurmountable problem, however. The agency can sanitize the documents
before turning them over to the Union.
The subpart (C) negation, after the reports are sanitized, should not
apply to the reports. Only factual data on travel practices will remain
for production; and they will not constitute "guidance, advice,
counsel, or training provided for management officials or supervisors
relating to collective bargaining."
3. As to the management memorandums
The content of the memorandums exchanged between Ms. McNutt and the
Evaluation Staff is obscure. See findings 18 and 19, above. On such
evidence, it cannot be concluded that the General Counsel proved, by a
preponderance of the evidence, that the memorandums are "necessary" for
collective bargaining purposes.
4. FOIA requests
Respondent objects to the fact that paragraph 9(a) of the complaint
names a date on which it declined to furnish information under the
Freedom of Information Act (FOIA), and alleges that this constituted a
violation of the Federal Service Labor-Management Relations Statute.
See RBr 10-11. The General Counsel, in his brief, does not attempt to
support this allegation. See GCBr 6-11.
Respondent is correct in arguing that a failure to comply with the
Freedom of Information Act does not constitute an unfair labor practice
under the Statute. FOIA has its own requirements and appeal rights. A
Union must request and prove a case for information under the Statute's
Section 7114(b)(4) criteria before an unfair labor practice can arise
from an agency refusal to produce. Compare Veterans Administration
Regional Office, Denver, Colorado and American Federation of Government
Employees, AFL-CIO, Local 1557, 7 FLRA 629, No. 100 decided January 15,
1982, in which the Authority upheld the decision of the Administrative
Law Judge, that violation of Sections 7116(a)(1) and (5) occurred when
an agency refused to furnish certain information to a union, but noted
that the right to the information derives from Section 7114(b)(4), and
not 7114(a)(1), as had been found by the Administrative Law Judge. The
Authority appears to be holding that any request for information must
meet Section 7114(b)(4) standards, under the Statute.
Accordingly, paragraph 9(a) should be stricken from the complaint.
5. National-level requests and charges
Findings 32-38 are made because Respondent, at the hearing, argued
some sort of estoppel because, at the national level, the Charging Party
withdrew unfair labor practice charges based on a refusal to supply the
same information here involved. See TR 60-61. Respondent does not
pursue the point in its brief. And Respondent adequately explained why
those charges were withdrawn. See finding 37, above. No estoppel
principle is applicable.
The parties raise a number of other issues, all of which have been
considered. However, resolution of them would only extend this
decision, without altering the conclusions reached. Accordingly,
judicial restraint is deemed appropriate; and such issues will not be
reached.
Ultimate Findings and Order
By its refusal to provide information to the Charging Party, pursuant
to requests made under Section 7114(b)(4), Respondent has violated
Sections 7116(a)(1), (5), and (8) of the Federal Service
Labor-Management Relations Statute.
Accordingly, it is ORDERED, pursuant to 5 U.S.C. 7118(a)(7)(A) (Supp.
III. 1979) and the Rules and Regulations of the Federal Labor Relations
Authority, 5 CFR 2423.29(b)(1), that paragraph 9(a) be stricken from the
complaint and that the Department of Health and Human Services, Social
Security Administration, Field Assessment Office in Atlanta, Georgia:
1. Cease and desist from:
(a) Failing and refusing to provide to the American Federation of
Government Employees, AFL-CIO, those portions of any available 1980
reports on the travel practices of the five satellite offices of the
Atlanta, Georgia, Field Assessment Office, which contain factual
findings.
(b) In any like or related manner, violating Sections 7116(a)(1),
(5), and (8) of the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action:
(a) Upon request, provide to the American Federation of Government
Employees, AFL-CIO, those portions of any available 1980 reports on the
travel practices in the five satellite offices of the Atlanta, Georgia,
Field Assessment Office, which contain factual findings.
(b) Post, at the Atlanta, Georgia, Field Assessment Office, copies of
the attached notice marked "Appendix," on forms to be furnished by the
Federal Labor Relations Authority. Upon receipt of such forms, they
shall be signed by the Director and posted and maintained for 60
consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices are customarily posted.
Reasonable steps shall be taken to ensure that said notices are not
altered, defaced, or covered by any other material; and
(c) Notify the Federal Labor Relations Authority, in writing, within
30 days from the date of this Order, as to what steps have been taken to
comply herewith.
ISABELLE R. CAPPELLO
Administrative Law Judge
Dated: March 25, 1982
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE We Hereby Notify Our Employees That:
WE WILL NOT fail or refuse to provide to the American Federation of
Government Employees, AFL-CIO, those portions of any available 1980
reports on the travel practices of the five satellite offices of the
Atlanta, Georgia, Field Assessment Office, which contain factual
findings. WE WILL NOT, in any like or related manner, violate Sections
7116(a)(1), (5), and (8) of the Federal Service Labor-Management
Relations Statute. WE WILL, upon request, provide to the American
Federation of Government Employees, AFL-CIO, those portions of any
available 1980 reports on the travel practices in the five satellite
offices of the Atlanta, Georgia, Field Assessment Office, which contain
factual findings.
(Agency or Activity)
Dated: . . . BY: (Signature) 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 any of its
provisions, they may communicate directly with the Regional Director of
the Federal Labor Relations Authority, Region 4, whose address is: 1776
Peachtree Street, N.W., Suite 501 - North Wing, Atlanta, Georgia, 30309;
and whose telephone number is: (404) 881-2324.
--------------- FOOTNOTES$ ---------------
/1/ The pertinent statutory provisions follow:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter; . . .
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter; . . . (or)
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
Sec. 7114. Representation rights and duties
(b) The duty of an agency and an exclusive representative to
negotiate in good faith under subsection (a) of this section shall
include the obligation-- . . .
(4) in the case of an agency, to furnish to the exclusive
representative involved, or its authorized representative, upon
request and, to the extent not prohibited by law, data--
(A) which is normally maintained by the agency in the regular
course of business;
(B) which is reasonably available and necessary for full and
proper discussion, understanding, and negotiation of subjects
within the scope of collective bargaining; and
(C) which does not constitute guidance, advice, counsel, or
training provided for management officials or supervisors,
relating to collective bargaining.
/2/ The following abbreviations will be used in this decision when
referring to the record. "TR" refers to the transcript. "REx" refers
to the exhibits of Respondent, "GCEx" to those of the General Counsel,
and "UEx" to those of the Union. "RBr" refers to the brief of the
Respondent, and "GCBr" to that of the General Counsel.