National Labor Relations Board Union (Union) and General Counsel of the National Labor Relations Board (Agency) (Authority decision, May 28, 1981)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

A union proposed allowing employees and union officials to photocopy NLRB investigative files for grievance processing. The agency objected that the proposal would limit its control over confidential case material. The Authority held that the disputed terms interfered with the agency’s right to determine internal security practices and dismissed the union’s petition.

Decision snapshot

• Authority: 5 U.S.C. § 7106(a)(1).
• Outcome: Agency nonnegotiability position upheld; petition dismissed.
• Key point: The agency retained control over copying sensitive investigative files.

Full text (FLRA public release)

[ v05 p696 ]

05:0696(95)NG

The decision of the Authority follows:

5 FLRA No. 95

NATIONAL LABOR RELATIONS BOARD UNION
Union

and

GENERAL COUNSEL OF THE NATIONAL
LABOR RELATIONS BOARD
Agency

Case No. 0-NG-188

DECISION AND ORDER ON NEGOTIABILITY ISSUE

THIS PETITION FOR REVIEW COMES BEFORE THE FEDERAL LABOR RELATIONS
AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5
U.S.C. 7101 ET SEQ.). THE ISSUE PRESENTED IS THE NEGOTIABILITY OF THE
FOLLOWING UNION PROPOSAL.

III. PHOTOCOPYING OF CASE FILE MATERIALS

A. THE AGENCY AGREES THAT EMPLOYEES AND UNION OFFICIALS WILL BE
PERMITTED TO PHOTOCOPY

CASE FILE MATERIAL FOR THE PURPOSE OF GRIEVANCE PROCESSING UP TO AND
INCLUDING

ARBITRATION. EMPLOYEES AND UNION OFFICIALS WILL ONLY PHOTOCOPY SUCH
CASE FILE MATERIAL AS IS

RELEVANT AND NECESSARY TO GRIEVANCE PROCESSING UP TO AND INCLUDING
ARBITRATION.

B. NO EMPLOYEE OR UNION OFFICIAL, HOWEVER, WILL DISCLOSE CASE FILE
MATERIAL TO ANY

NON-EMPLOYEE EXCEPT AFTER FIRST COMPLYING WITH SECTION 102.118 OF THE
BOARD'S RULES IN THE

MANNER DESCRIBED IN THIS SUPPLEMENTAL AGREEMENT.

C. ALL EMPLOYEES AND UNION OFFICIALS WILL HANDLE ALL CASE FILE
MATERIAL WITH THE HIGHEST

STANDARD OF CARE TO ASSURE THAT THERE WILL BE NO DISCLOSURE TO
NON-EMPLOYEES.

D. UPON REQUEST BASED UPON REASONABLE GROUNDS, AND IN ORDER TO
ASSURE THAT EMPLOYEES AND

UNION OFFICIALS ARE COMPLYING WITH THE FOREGOING PROVISIONS OF THIS
SECTION, THE AGENCY MAY

FROM TIME TO TIME, REQUIRE AN ACCOUNTING OF THE CASE FILE MATERIAL
PHOTOCOPIES. /1/

QUESTION BEFORE THE AUTHORITY

THE QUESTION IS WHETHER THE DISPUTED PORTIONS OF THE UNION'S PROPOSAL
ARE INCONSISTENT WITH THE AGENCY'S AUTHORITY UNDER SECTION 7106(A)(1) OF
THE STATUTE TO DETERMINE ITS INTERNAL SECURITY PRACTICES, AS ALLEGED BY
THE AGENCY. /2/

OPINION

CONCLUSION AND ORDER: THE DISPUTED PORTIONS OF THE UNION'S PROPOSAL
WOULD LIMIT THE AGENCY IN DETERMINING ITS INTERNAL SECURITY PRACTICES
UNDER SECTION 7106(A)(1) OF THE STATUTE WITH RESPECT TO THE AGENCY'S
INVESTIGATIVE FILES. THEREFORE, THE PROPOSAL IS NOT WITHIN THE DUTY TO
BARGAIN. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
RULES AND REGULATIONS (5 CFR 2424.10, AS AMENDED BY 45 F.R. 48575), IT
IS ORDERED THAT THE UNION'S PETITION FOR REVIEW BE, AND IT HEREBY IS,
DISMISSED.

REASONS: THE PARTIES DO NOT DISPUTE THAT THE CASE FILE MATERIALS
WHICH ARE THE SUBJECT OF THE PROPOSAL HEREIN ARE AGENCY INVESTIGATIVE
RECORDS USED IN THE COURSE OF INVESTIGATING AND PROSECUTING UNFAIR LABOR
PRACTICE CASES UNDER THE NATIONAL LABOR RELATIONS ACT AND THAT SUCH
RECORDS MAY INCLUDE MATERIAL, SUCH AS AFFIDAVITS, FINANCIAL DATA, AND
INVESTIGATORY MATERIAL WHICH IS PRIVILEGED AND CONFIDENTIAL IN NATURE.
MANAGEMENT'S DETERMINATION OF THE INTERNAL SECURITY PRACTICES UNDER
SECTION 7106(A)(1) OF THE STATUTE INCLUDES THE RIGHT TO PREVENT
UNAUTHORIZED DISCLOSURE OF THE AGENCY'S INVESTIGATIVE FILES BY
RESTRICTING ACCESS TO THOSE FILES. AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 15 AND DEPARTMENT OF TREASURY, INTERNAL
REVENUE SERVICE, NORTH ATLANTIC REGION, 2 FLRA NO. 109(1980).
NEVERTHELESS, THE EXPRESS LANGUAGE OF PARAGRAPH A OF THE UNION'S
PROPOSAL WOULD REQUIRE THE AGENCY TO GRANT EMPLOYEES AND UNION OFFICIALS
UNQUESTIONED ACCESS TO SUCH MATERIAL. ACCORDINGLY, IT INTERFERES WITH
THE AGENCY'S AUTHORITY UNDER SECTION 7106(A)(1) TO DETERMINE THE
INTERNAL SECURITY PRACTICES OF THE AGENCY.

PARAGRAPH D OF THE UNION'S PROPOSAL, WHICH WOULD PERMIT THE AGENCY TO
REQUIRE AN ACCOUNTING OF CASE FILE MATERIAL PHOTOCOPIED BY EMPLOYEES AND
UNION OFFICIALS "(U)PON REQUEST BASED UPON REASONABLE GROUNDS . . ." AND
"FROM TIME TO TIME", ALSO WOULD INTERFERE WITH THE AGENCY'S STATUTORY
AUTHORITY TO DETERMINE ITS INTERNAL SECURITY PRACTICES. THE AGENCY
WOULD STILL BE PRECLUDED, FOR EXAMPLE, FROM DETERMINING IN ADVANCE THAT
A PARTICULAR FILE CONTAINED PRIVILEGED AND CONFIDENTIAL MATERIAL AND
THUS SHOULD BE "SANITIZED" BEFORE FURNISHING IT TO EMPLOYEES AND UNION
OFFICIALS FOR USE IN GRIEVANCE PROCESSING. THE AGENCY COULD ONLY SEEK
TO PREVENT UNWARRANTED DISCLOSURE OF SUCH MATERIAL AFTER EMPLOYEES OR
UNION OFFICIALS MIGHT HAVE PHOTOCOPIED IT.

IN SUM, THE DISPUTED PORTIONS OF THE UNION'S PROPOSAL WOULD GRANT
EMPLOYEES AND UNION OFFICIALS ESSENTIALLY AN UNCONTROLLED RIGHT UNDER
THE CONTRACT TO PHOTOCOPY AGENCY INVESTIGATIVE FILES CONTAINING
PRIVILEGED AND CONFIDENTIAL MATERIALS. SUCH A PROPOSAL WOULD DENY THE
AGENCY'S AUTHORITY UNDER SECTION 7106(A)(1) OF THE STATUTE TO DETERMINE
ITS INTERNAL SECURITY PRACTICES. IT IS IMPORTANT TO NOTE, HOWEVER, THAT
THE AGENCY HAS A DUTY TO PROVIDE THE UNION UPON REQUEST WITH DOCUMENTS
CONTAINED IN THE INVESTIGATIVE FILES TO WHICH THE UNION IS ENTITLED
UNDER LAW. THE AGENCY CONCEDES THIS. IT IS FURTHER EMPHASIZED THAT
THIS DECISION SHOULD NOT BE CONSTRUED AS AFFECTING THE UNION'S RIGHT TO
OBTAIN INFORMATION, UPON REQUEST, NECESSARY TO CARRYING OUT ITS
REPRESENTATIONAL FUNCTIONS IN ACCORDANCE WITH SECTION 7114(B) OF THE
STATUTE. /3/

ISSUED, WASHINGTON, D.C., MAY 28, 1981

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ ONLY THE UNDERSCORED PORTIONS OF THE UNION'S PROPOSAL ARE IN
DISPUTE.

/2/ SECTION 7106(A)(1) OF THE STATUTE PROVIDES, IN PERTINENT PART, AS
FOLLOWS:

SEC. 7106. MANAGEMENT RIGHTS

(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY
AGENCY--

(1) TO DETERMINE THE . . . INTERNAL SECURITY PRACTICES OF THE
AGENCY(.)

/3/ SECTION 7114(B) OF THE STATUTE PROVIDES, IN PERTINENT PART, AS
FOLLOWS:

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--

. . . .

(B) WHICH IS REASONABLY AVAILABLE AND NECESSARY FOR FULL AND PROPER
DISCUSSION,

UNDERSTANDING, AND NEGOTIATION OF SUBJECTS WITHIN THE SCOPE OF
COLLECTIVE BARGAINING(.)