National Labor Relations Board and National Labor Relations Board Union, Local 6 (Authority decision, May 29, 1992)

FLRA remand decision. The Authority sends the unfair labor practice complaint back to the administrative law judge for further proceedings. It does not decide whether the requested memorandum must be disclosed. The underlying proceeding remains open, so this decision does not present a final judicial-review period under 5 U.S.C. § 7123(a).

Plain-English summary

An NLRB employee sought a part-time schedule, and the union asked for an internal memorandum about the request after the agency denied it. The NLRB refused to provide the memorandum, prompting an unfair labor practice complaint. Earlier Authority decisions and court review disagreed about the legal test for disclosure. The court held that the union had to show a particularized need for information containing management guidance or advice, a test the Authority had not applied. The Authority found the existing record insufficient to decide the issue and returned the complaint to the administrative law judge for further proceedings.

Decision snapshot

• Authority: Information requests under 5 U.S.C. § 7114(b)(4); unfair labor practices under § 7116(a).
• Outcome: Complaint remanded to the administrative law judge; disclosure question unresolved.
• Key point: The record needed further development under the court's particularized need standard.

Full text (FLRA public release)

[ v44 p1545 ]
44:1545(120)CA

The decision of the Authority follows:

44 FLRA No. 120

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL LABOR RELATIONS BOARD

(Respondent)

and

NATIONAL LABOR RELATIONS BOARD UNION

LOCAL 6

(Charging Party/Union)

2-CA-50471

38 FLRA 506 (1990)

32 FLRA 305 (1988)

26 FLRA 108 (1987)

DECISION AND ORDER ON REMAND

May 29, 1992

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This case is before the Authority pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit in National Labor Relations Board v. FLRA, 952 F.2d 523 (D.C. Cir. 1992) (NLRB v. FLRA). The 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 furnish the Union with certain information requested under section 7114(b)(4) of the Statute. For the following reasons, we conclude that the complaint must be remanded to the Administrative Law Judge for further proceedings.

II. Background

An employee in the Respondent's Pittsburgh Office requested a part-time work schedule pursuant to a provision in the parties' collective bargaining agreement. By memorandum dated January 25, 1985, the Pittsburgh Regional Director transmitted a copy of the employee's request to the Associate General Counsel and the Assistant General Counsel in Washington, D.C. The memorandum set forth, among other things, the Regional Director's recommendation concerning the request. After review of the employee's request and the Regional Director's memorandum, the Assistant General Counsel denied the employee's request. Thereafter, as relevant here, the Union requested a copy of the memorandum and filed a grievance over the denial of the employee's request. After the Respondent denied the Union's request for the memorandum, the Union filed an unfair labor practice charge which resulted in the complaint in this case. The parties agreed to defer further processing of the grievance until completion of these ULP proceedings.

Based on a stipulated record, the Authority concluded in National Labor Relations Board, 26 FLRA 108 (1987) (NLRB I), that the Respondent was not required to furnish the Union with the memorandum under section 7114(b)(4) of the Statute because disclosure of the memorandum was prohibited by section 7106 of the Statute. In National Labor Relations Board Union, Local 6 v. FLRA, 842 F.2d 483 (D.C. Cir. 1988), the D.C. Circuit held that section 7106 does not bar the disclosure of information under section 7114(b)(4). The court vacated the Authority's decision in NLRB I and remanded the case to the Authority. The Authority remanded the case to an administrative law judge to determine whether the memorandum was necessary, under section 7114(b)(4)(B) of the Statute, and whether it constituted guidance, advice, counsel, or training relating to collective bargaining under section 7114(b)(4)(C) of the Statute. Decision and Order on Remand, 32 FLRA 305 (1988).

On remand from the Authority, the Judge found that the memorandum was necessary for the Union to discharge its representational responsibilities. The Judge also found that, except for the portions of the memorandum setting forth the Regional Director's recommendation concerning the request for part-time employment, the memorandum did not constitute guidance, advice, counsel or training for management officials or supervisors under section 7114(b)(4)(C) of the Statute. Accordingly, the Judge found that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by refusing to furnish the memorandum, with the portions setting forth the Regional Director's recommendation deleted, to the Union.

In National Labor Relations Board, 38 FLRA 506 (1990) (NLRB II), the Authority found that the memorandum was "necessary for the Union to fully know and understand the basis underlying the Respondent's position on the employee's request and to determine the most appropriate course of action to take in the matter." Id. at 517. The Authority also found that no part of the memorandum constituted guidance, advice, counsel or training relating to collective bargaining under section 7114(b)(4)(C) of the Statute. The Authority held that the Respondent's refusal to furnish the memorandum to the Union violated section 7116(a)(1), (5), and (8) of the Statute. The Authority directed the Respondent, among other things, to furnish the requested memorandum to the Union.

In NLRB v. FLRA, the court agreed with the Authority's holding that the memorandum did not constitute guidance, advice, counsel, or training relating to collective bargaining, within the meaning of section 7114(B)(4)(C) of the Statute. However, the court concluded that "an agency need not disclose information on 'guidance,' 'advice,' 'counsel' or 'training' for management officials under § 7114(b)(4)(B) unless the union has a 'particularized need' for such information." Id. at 534. As the Authority had "failed to apply this standard[,]" the court remanded the case to the Authority for further proceedings. Id.

III. Analysis and Conclusion

The record before us is not sufficient to make the determinations required by the court's remand. Accordingly, we will remand the case to the Judge for further processing.

IV. Order

The complaint is remanded to the Judge for further proceedings consistent with this decision.

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