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NATIONAL LABOR RELATIONS BOARD WASHINGTON, D.C. |
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Case No. WA-CA-21088
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Nelson A. Levin
For the Respondent
Christopher M. Feldenzer
For the General Counsel
Henrik M. Sortun
For the Charging Party
Before: BURTON S. STERNBURG
Administrative Law Judge
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
Section 7101, et seq., and the Rules and Regulations issued
thereunder.
Pursuant to a charge filed on September 2, 1992, by the
National Labor Relations Board Union, (hereinafter called the
Union), against the National Labor Relations Board, Washington,
D.C., (hereinafter called the Respondent), a Complaint and Notice
of Hearing was issued on November 30, 1992 by the Regional Director
for the Washington, D.C. Regional Office, Federal Labor Relations
Authority. The Complaint alleges that Respondent violated Sections
7116(a) (1), (5) and (8) of the Federal Service Labor-Management
Relations Statute, (hereinafter called the Statute), by refusing to
furnish the Union a copy of Respondent's "Operating Plan for Fiscal
1992".
A hearing was held in the captioned matter on May 21, 1993 in
Washington, D.C. All parties were afforded the full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues involved herein. All parties
submitted post hearing briefs on July 16, 1993, which have been
duly considered.
Upon the basis of the entire record, including my observation
of the witnesses and their demeanor, I make the following findings
of fact, conclusions and recommendations.
The Union represents four separate bargaining units of
Respondent's employees. Two of the units are located in Washington,
D.C. at Respondent's Headquarters and consist of (1) approximately
125 clerical or non-professional employees supervised by the
General Counsel and (2) approximately 50 clerical or
non-professional employees supervised by the Board members. The
other two units are located in Respondent's Field Offices and
consist of (1) approximately 800 professionals, i.e. attorneys and
field examiners and (2) 400 clerical or non-professional employees.
Each of the four bargaining units was covered by a collective
bargaining agreement during part of Fiscal Year 1992, which
commenced on October 1, 1991 and ended on September 30, 1992. The
collective bargaining agreements covering the two Field Office
units expired on February 27, 1992. The contracts covering the
headquarter's units were in effect for the complete 1992 Fiscal
Year.
Each of the above mentioned collective bargaining agreements
contain provisions which allow Respondent to withdraw certain
benefits provided for unit employees if Respondent should determine
that money for such benefits does not exist within the budget for a
particular year.(1) According to the
terms of the collective bargaining agreements and the testimony of
Union President Sortun, such contractual benefits subject to the
availability of funds include, among other things, educational
development, inter-office transfers for purposes of securing work
experience, labor publications, per diem expenses for Union
officials engaged in representational functions, payment for
transfers from one office to another and performance awards.
With respect to the Respondent's budget, which in the first
instance is dependent upon a Congressional appropriation, the
record discloses that the Respondent's budget office begins around
September of each year preparing an operating plan for the fiscal
year commencing October 1. The initial preparation of the operating
plan is not completed, however, until after the Respondent has
received its Congressional appropriation. At such time the
suggested and/or proposed operating plan is reviewed first by the
Director of Administration who then submits it to the General
Counsel, Deputy General Counsel and the Associate General Counsel
for the Division of Operations-Management. There-after, the
operating plan is revised in accordance with their suggestions and
subsequently submitted to the Members of the National Labor
Relations Board for their approval.
The operating plans are guides to managers with respect to the
funding of various programs under their supervision for the
forthcoming fiscal year. During the course of the fiscal year
managers routinely shift the money allocated to them from one
program to another as surpluses and deficiencies arise in the
various programs. Additionally, managers request and receive
additional money from the budget office to fund their programs. The
additional money disbursed by the budget office to a particular
manager comes from savings accomplished by other managers in the
operation of the programs under their respective supervision. Due
to various exigencies, excessive case filings, etc., necessitating
transfer of funds from one program to another, the operating plan
is never set in cement and for all intents and purposes becomes
inaccurate once a transfer is made from one program to another or
from one manager to another, since such transfers are not reflected
on the operating plan. With respect to the operating plan for
fiscal year 1992 the record indicates that while such a plan was
drawn up, distributed to the managers, and utilized by the
managers, according to the uncontradicted testimony of Respondent's
witnesses, it had never been approved by the Board members.
In fiscal years 1990 and 1991 due to budget restraints
Respondent was forced to discontinue a number of contractual
benefits. During fiscal year 1992 Respondent did not discontinue
any contractual benefits due to budgetary considerations. In fact,
according to the testimony of Mr. Sortun, during November 1991 he
had a briefing by Mr. Hardy Darden of the budget office wherein he
was informed that Respondent anticipated that there would be full
contract benefits for the 1992 fiscal year.
By letter dated May 22, 1992, Union President Sortun requested
Respondent to supply the Union with a copy of the Respondent's "FY
'92 Operating Plan". The letter further stated that "this
information is requested pursuant to 5 USC 7114(b)(4) and analogous
provisions of extended/recently expired collective bargaining
agreements covering Headquarter and Field unit employees".
By letter dated June 23, 1992, Respondent's Labor Relations
Officer formally responded to Mr. Sortun's May 22, 1992 letter. The
letter stated in pertinent part as follows:
Inasmuch as, inter alia, negotiated employee benefits have not been
diminished or eliminated as the result of budgetary consideration,
we have not been able to discern the necessity of information to
the NLRBU in fulfilling its representational obligations. . . .
Thus, absent clarification as to the necessity of the information,
such has not been provided.
Enclosed with the letter was a MOU drawn up in 1991 in settlement of an earlier ULP wherein Respondent had agreed to make future Operating Plans available to the Union where Respondent "has diminished or eliminated negotiated unit employee benefits".
The Union responded by letter dated July 17, 1992, wherein it
stated in pertinent part as follows:
. . . the information requested is necessary for, but not
limited to, the following reasons:
(1) Various provisions of the extended Headquarters Agreements and the expired Field Agreements are dependent upon budgetary considerations and/or staffing considerations. Staffing consideration is related to budget. Included are training benefits, including Bridge positions, exchange details, transfers, publications and Consultations. The operating plan will permit the NLRBU to evaluate the costs of these benefits vis-a-vis other Agency expenditures and prepare for budget eventualities during this and successive fiscal years.
(2) A number of grievances are pending, including in arbitration,
which relate to the Agency budget and/or staffing. The operating
plan will permit the NLRBU to better evaluate the merits of such
grievances.
(3) Other matters not the subject of specific contractual provisions also depend upon the budget, i.e., overtime compensation, travel authorization, office furniture and equipment to name a few. The operating plan will permit the NLRBU to assess the propriety of Agency decisions in these regards and of possible bargaining demands.
(4) Field Agreements have expired, but, in regard to mandatory
subjects of bargaining, the Agency must maintain established levels
of benefits, some of which, as above, are conditioned on budgetary
and/or staffing considerations. Also, the parties are presently in
groundrule negotiations for the nego-tiation of successor
agreements, which groundrule negotiations involve matters of money.
Further, in order to prepare for those groundrule and successor
agreement negotiations, the NLRBU needs to know the monies
available for various matters.
(5) In both Headquarters and the Field we are negotiating Agency space and facilities which relate to budget. The operating plan will permit the NLRBU to make judgments regarding bargaining demands and whether or to what extent those demands which involve money may or may not be negotiable.
The record is devoid of any probative evidence indicating that budgetary considerations were ever advanced by Respondent as the basis for any action it may have taken during the 1992 Fiscal Year with respect to the benefits set forth in the various collective bargaining agreements(2). To the extent that a grievance might have been filed concerning the failure to transfer an employee or to allow an employee to switch from full time employment to part time employment, again, there was no probative evidence indicating that budgetary considerations played any part in such actions by Respondent.
With respect to the Union's request for the 1992 Operating Plan
and the reasons therefor, during the hearing Mr. Sortun reiterated
and elaborated on the necessity for the requested information and
went on to point out the numerous provisions of the collective
bargaining agreements which were dependent on the availability of
funds.
Counsel for the General Counsel and Counsel for the Union take the position that Respondent violated Sections 7116(a) (1), (5) and (8) of the Statute by refusing to furnish the Union with a copy of the Operating Plan for Fiscal Year l992. Thus, according to the Union and the General Counsel the requested information is necessary in order for the Union to both police the collective bargaining agreements relative to Respondent claims of insufficient funds and to formulate intelligent bargaining proposals for new collective bargaining agreements to replace the recently expired ones covering field operations. Such proposals include, among other things, those aspects of the ground rules for the upcoming negotiations which involve money. Having the Operating Plan, the Union would be in a position to determine its priorities with respect to those contractual items that involve money.
Respondent, on the other hand, takes the position that the
Union has not shown any particularized need for the Operating Plan.
According to Respondent, due to the fact that the Operating Plan is
not set in cement but rather constantly changing it would be of
little or no use to the Union since the changes are not recorded on
the Plan. Additionally, to the extent that the Union claims that it
needs the Plan in order to police the collective bargaining
agreements, Respondent points out that there has been no showing
that during the 1992 Fiscal Year Respondent had cancelled any
employee benefits set forth in the collective bargaining agreements
in effect due to lack of funds.
Respondent further argues that release of the Operating Plan is
forbidden by OMB Circular A-11 which provides in 12.9(d) entitled
"Information available to the public" as follows:
An agency may disclose budgetary records of that agency, if
otherwise appropriate, upon a request for such records pursuant to
the Freedom of Information Act (FOIA) following the end of the
fiscal year to which such information pertains.
Contrary to the contention of Respondent, I find in agreement with the General Counsel and the Union that the release of the Operating Plan for Fiscal Year 1992 is not precluded by OMB Circular A-11. A literal reading of OMB Circular A-11 makes it clear that such circular refers to requests by the public pursuant to the Freedom of Information Act (FOIA). It does not supersede Section 7114(b)(4) of the Statute which imposes a duty upon Respondent to furnish information to an exclusive representative which is reasonably available and necessary for full and proper discussion, under-standing, and negotiation of subjects within the scope of bargaining.
Inasmuch as it is clear from the record that the draft
Operating Plan for Fiscal Year 1992 is reasonably available, the
sole issue to be decided is whether the Union has a particularized
need for the requested information.(3)
In this connection I find that the Union has established a
particularized need for the requested information. Thus, the record
establishes that collective bargaining agreements covering the
Field Office professional employees contains upward of 10
provisions wherein benefits accorded employees are contingent on
the availability of funds and that in prior fiscal years Respondent
has failed to grant such contractual benefits to unit employees
solely on the basis of unavailability of funds. While Respondent
has not been shown to have denied any contractual benefits called
for in collective bargaining agreements currently
in effect, it has failed supply the publication entitled
"Merit Systems Reporter" called for in one of the expired
agreements "due to lack of funds".(4) Additionally the record establishes that
parties were negotiating the ground rules for the upcoming
negotiations for new collective bargaining agreements covering the
Field Office bargaining units. The availability of funds was an
important consideration in the ground rules negotiations since the
Union was seeking reimbursement for the travel and accommodations
expenses incurred by it's designated negotiators.
In view of the foregoing considerations, all of which involve
the expenditure of funds, I find that the Union needs the Operating
Plan in order to police the existing collective bargaining
agreements and to formulate intelligent proposals for both the
ground rules and collective bargaining negotiations. With the
information the Union would be able to decide whether to forego
certain benefits in its current negotiations in order to secure
others which would be of greater interest to its members. The same
considerations would apply to any contemplated mid-term bargaining
proposals with respect to the existing collective bargaining
agreements.
As to policing the collective bargaining agreements, while
there has been no showing that unavailability of funds has been
cited by Respondent in defense of its actions with respect to the
subject matter of the pending grievances, having the Operating Plan
might well allow the Union to determine that non-availability of
funds was indeed the true basis for the actions underlying the
grievances and to take appropriate action based thereon. I further
find that the Union's need to know outweighs any countervailing
interests which Respondent might possibly have favoring
non-disclosure of the Operating Plan.
Based upon the foregoing conclusions, I find that by failing
and refusing to furnish the Union a copy of the Operating Plan for
Fiscal Year 1992, Respondent violated Sections 7116(a)(1), (5) and
(8) of the Statute. Accordingly, it is recommended that the Federal
Labor Relations Authority issue the following Order designed to
effectuate the purposes and policies of the Statute.
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute,
it is hereby ordered that National Labor Relations Board,
Washington, D.C., shall:
1. Cease and desist from:
(a) Failing and refusing to furnish the National Labor
Relations Board Union (NLRBU), the exclusive representative of
certain of its employees, the Operating Plan for Fiscal Year 1992,
which was requested by the NLRBU on May 22, 1992.
(b) In any like or related manner, interfering with,
restraining or coercing its 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 NLRBU the requested
Operating Plan for Fiscal Year 1992.
(b) Post at its facilities in the United States where
unit employees are employed, 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 Chairman of the
National Labor Relations Board, and shall be posted and maintained
for 60 consecutive days thereafter, in conspicuous places,
including all bulletin boards and other places where notices to
employees are customarily posted. Reasonable steps shall be taken
to insure 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 of the
Washington Region, 1255 22nd Street, NW, 4th Floor, Washington, DC
20037-1206, in writing, within 30 days from the date of this Order,
as to what steps have been taken to comply herewith.
Issued, Washington, DC, March 31, 1994
BURTON S. STERNBURG
Administrative Law Judge
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
HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail and refuse to furnish to the National Labor
Relations Board Union, the exclusive representative of certain of
our employees, the information requested by the Union on May 22,
1992, namely the Fiscal Year 1992 Operating Plan.
WE WILL NOT in any like or related manner, interfere with, restrain
or coerce our employees in the exercise of their rights assured by
the Federal Service Labor-Management Relations Statute.
WE WILL, upon request, furnish to the Union the information
requested on May 22, 1992.
(Activity)
Date: _____________________ 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 any of its provisions, they may communicate
directly with the Regional Director of the Federal Labor Relations
Authority, Washington Region, 1255 22nd Street, NW, 4th Floor,
Washington, DC 20037-1206, and whose telephone number is: (202)
653-8500.
Dated: March 31, 1994
Washington, DC
1. A typical contract provision reads as follows:
In the event budgetary considerations prevent the implementation or continuation of any benefit of this Agreement, which is expressly contingent on such considerations, the Board will not be obligated to continue the benefit after notice is given to the NLRBU that budgetary considerations prevent such payment. The Board agrees to notify the NLRBU concerning the decision to limit or discontinue the contractual benefit and, to the extent required by law, will bargain over the decision and effects of such decision. In the event the NLRBU seeks to bargain pursuant to this Section, it will not utilize . . . Grievance Procedure . . . or Arbitration on such matters.
2. The file does contain a letter from Respondent wherein, in answer to the Union's request for information dated March 27, 1992, Respondent listed all the publications and labor services that it had subscribed to. It also listed a number of publications that it had not subscribed to or renewed "due to the lack of funds". One such publication not subscribed to because of lack of funds was required by one of the collective bargaining contracts to be supplied if funds were available. The record indicates that the collective bargaining contract calling for the publication expired in February 1992 and that the Respondent had advised the Union that it had no intention of adhering to those provisions of the expired collective bargaining agreement which dealt with permissive subjects of bargaining.
3. To the extent Respondent contends that the Operating Plan is not normally maintained and reasonably available because it has not been signed off by the Board members, I find such defense to be without merit since, admittedly, the so-called draft Operating Plan had been distributed to, and utilized by the respective agency managers.
4. The record does not indicate the date that the omitted
publication was due for renewal, i.e. before or after the expiration of the agreement and Respondent's announcement that it had no intention of retaining those provisions of the expired contract dealing with permissive subjects of bargaining. In this connection it is noted that the Authority has held that publications such as the Federal Times are linked to the work of the unit employees because they contain reports of the Court of Claims, FLRA, MSPB and Comptroller General, and as such constitute conditions of employment over which Respondent is obligated to bargain. U.S. Department of
Health and Human Services, Social Security Administration, Region X, Seattle, Washington, 37 FLRA 880.