N.L.R.B. v. Federal Labor Relations Authority
| Decision Date | 06 March 1992 |
| Docket Number | 91-1070 and 91-1087,Nos. 91-1044,L,AFL-CI,s. 91-1044 |
| Citation | 952 F.2d 523 |
| Parties | 139 L.R.R.M. (BNA) 2185, 293 U.S.App.D.C. 167, 60 USLW 2496, 120 Lab.Cas. P 11,057 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, National Labor Relations Board Union 6, Intervenor. DEPARTMENT OF THE AIR FORCE, SACRAMENTO AIR LOGISTICS CENTER, McCLELLAN AIR FORCE BASE, CALIFORNIA, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, American Federation of Government Employees,ocal 1857, Intervenor. NATIONAL PARK SERVICE, NATIONAL CAPITAL REGION, UNITED STATES PARK SERVICE, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, Police Association of the District of Columbia, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petitions for Review of Orders of the Federal Labor Relations Authority.
Marc Richman, Atty., U.S. Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., and William Kanter, Atty., U.S. Dept. of Justice, Washington, D.C., were on the brief, for petitioners in all cases.
Richard Zorn, Atty., Federal Labor Relations Authority, with whom William E. Persina, Solicitor, William R. Tobey, Deputy Sol. and Arthur A. Horowitz, Associate Sol., Federal Labor Relations Authority, Washington, D.C., were on the brief, for respondent in all cases.
Joseph V. Kaplan, with whom Mark D. Roth, Charles A. Hobbie and Alexia McCaskill, Washington, D.C., were on the brief, for intervenors in all cases.
Before EDWARDS, BUCKLEY and D.H. GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
In this consolidated case, three federal agencies petition for review from final orders of the Federal Labor Relations Authority (the "FLRA" or "Authority"), which directed the agencies to disclose certain information to the unions that represent agency employees. Under the Federal Service Labor-Management Relations Statute (the "FSLMRS" or "Statute"), unions are entitled to information that is "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining," 5 U.S.C. § 7114(b)(4)(B) (1988); this entitlement stands in conjunction with an exemption covering "guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining," id. § 7114(b)(4)(C). The disputes underlying this case focus on the meaning of subsections (b)(4)(B) and (b)(4)(C), concerning when a union is entitled to information relating to "guidance, advice, counsel, or training" for management officials, and when such information is exempt from disclosure.
In all three cases before the court, the unions sought to compel agency management officials to disclose information pertaining to employee grievances. For example, the unions requested documents embodying recommendations that subordinate agency officials had provided their superiors regarding possible actions to be taken against agency employees. The agencies refused to provide the requested information, and unfair labor practice proceedings ensued. The agencies claimed that, because the documents included information on "guidance, advice, counsel, or training" for management, they need not be disclosed under § 7114(b)(4). The FLRA, however, construed § 7114(b)(4)(C) to exempt only "guidance, advice, counsel, or training" relating to the process of collective bargaining. Because the Authority found that the requested documents did not fall within the prescribed category, the agencies were ordered to "cease and desist" from nondisclosure.
We uphold the FLRA's construction of § 7114(b)(4)(C). In suggesting that the subsection exempts all information relating to guidance, advice, counsel or training, petitioners render meaningless the phrase "relating to collective bargaining" in § 7114(b)(4)(C). The plain terms of the statute indicate that Congress did not intend a blanket exemption for all such information. Even if the statute is arguably ambiguous, however, the FLRA's interpretation is reasonable and thus entitled to deference.
Information on "guidance," "advice," "counsel" or "training" for management officials that is not covered by the FLRA's construction of § 7114(b)(4)(C) must be disclosed under § 7114(b)(4)(B) if the information is "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining." However, in construing subsection (b)(4)(B), the FLRA erred in failing to recognize that "necessary" is not the same as "relevant". Agencies have an important interest in deliberating over employee actions; thus, this interest cannot be ignored in the application of § 7114(b)(4)(B). In any case in which information is sought under subsection (b)(4)(B), there must be a particularized showing of need for information on "guidance," "advice," "counsel" or "training" provided for management officials if such information is not otherwise exempt under subsection (b)(4)(C). Because the FLRA failed to give full consideration to the limiting language of subsection (b)(4)(B), we remand for further consideration of this point.
The Federal Service Labor-Management Relations Statute provides the framework for collective bargaining in the federal sector. If a union has been recognized as the exclusive representative of agency employees, that union and the agency are obliged to "negotiate in good faith" about "condition[s] of employment." 5 U.S.C. § 7114(b) (1988). As in the private sector, 1 the employer's obligation to bargain includes a duty to furnish the union with information pertaining to the subjects of bargaining. Under the FSLMRS, this duty is defined as follows:
The duty of an agency and an exclusive representative to negotiate in good faith ... 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.
...
Id. The petition for review in this case concerns the scope of the § 7114(b)(4)(C) exemption, and the standard for defining when information on "guidance," "advice," "counsel" or "training" for management officials that is not otherwise exempt under subsection (b)(4)(C) must be disclosed under (b)(4)(B).
It is undisputed that the agency's duty to furnish information under § 7114(b)(4) extends to contract administration as well as contract negotiations. And "[i]t is well-settled that section 7114 creates a duty to provide information that would enable the Union to process a grievance or to determine whether or not to file a grievance." American Fed'n of Gov't Employees, Local 1345 v. FLRA, 793 F.2d 1360, 1364 (D.C.Cir.1986). The instant petition consolidates three different cases in which the agencies took action against particular employees, and the union requested information about the employees for pending or prospective grievance procedures. In each case, the agency asserted that the information sought was exempt from disclosure as "guidance," "advice" or "counsel," because it concerned a supervisor's recommendation of action, rather than the agency's final decision. The FLRA ordered disclosure, and the agencies then petitioned for review.
In the National Labor Relations Board ("Local 6") case, a lawyer employed by the NLRB asked for a part-time work schedule. Her Regional Director wrote a memorandum to the Board's Assistant and Associate General Counsels, discussing the issue and providing his recommendation. The Assistant General Counsel wrote back to deny part-time employment, and this letter was released to the employee. The union filed a grievance over the denial. Before filing, and again during the grievance procedure, the union requested the Regional Director's memorandum. The NLRB refused, and an unfair labor practice proceeding ensued.
The FLRA initially decided that disclosure was "prohibited by law" under § 7114(b)(4). The Authority viewed the applicable "law" to be the "management rights" provision under section 7106 of the FSLMRS. 2 This decision was vacated and remanded in NLRB Union, Local 6 v. FLRA, 842 F.2d 483 (D.C.Cir.1988), in which the court held that "[s]ection 7106 by any reading does not prohibit the disclosure of anything." Id. at 486. The court left open the question of the significance of sections 7114(b)(4)(B) and (C).
On remand, the FLRA returned the case to an administrative law judge ("ALJ"). The ALJ found that the Regional Director's memorandum was "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining," under § 7114(b)(4)(B). He reasoned:
While certain factors considered by the Regional Director were made known to the employee, the Union has no way of knowing whether other considerations may have influenced his recommendation and were included in his memorandum to Washington. The record reflects that other staff employees had worked part-time, and a claim was made that [the Regional Director] evinced hostility toward part-time employment by the legal profession. A contention that a unit employee was not permitted to engage in such employment, while others were granted such option, would make necessary the divulgence [of] the Director's recommendation to permit the Union to evaluate...
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