49:0597(56)CA - - Justice, Bureau of Prisons, Allenwood Federal Prison Camp, Montgomery, PA and AFGE, Council 33, Local No. 148; HUD and AFGE Local 476 - - 1994 FLRAdec CA - - v49 p597



[ v49 p597 ]
49:0597(56)CA
The decision of the Authority follows:


49 FLRA No. 56

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF JUSTICE

BUREAU OF PRISONS

ALLENWOOD FEDERAL PRISON CAMP

MONTGOMERY, PENNSYLVANIA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL 33

LOCAL NO. 148

AFL-CIO

(Charging Party/Union)

2-CA-00107

(40 FLRA 449 (1991))

U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 476, AFL-CIO

(Charging Party/Union)

3-CA-10066

(42 FLRA 1002 (1991))

_____

U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 476, AFL-CIO

(Charging Party/Union)

3-CA-10256

(43 FLRA 748 (1991))

_____

DECISION AND ORDER ON REMAND

March 23, 1994

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

These cases are before the Authority on remand from the United States Court of Appeals for the District of Columbia Circuit in United States Department of Justice, Bureau of Prisons, Allenwood Federal Prison Camp, Montgomery, Pennsylvania v. FLRA, 988 F.2d 1267 (D.C. Cir. 1993) (Bureau of Prisons v. FLRA).(1) The complaints in the cases allege, as relevant here, that the Respondents violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to furnish the Unions with certain crediting plans requested pursuant to section 7114(b)(4) of the Statute.(2)

For the following reasons, we conclude that the complaints must be remanded for further proceedings.

II. Background

The facts of these cases are fully set forth in the Authority's decisions in Allenwood Federal Prison Camp, HUD I, and HUD II, and are summarized here for the convenience of the reader.

A. Allenwood Federal Prison Camp

On June 19, 1989, the Union's Chief Steward requested the Respondent's Warden to furnish the Union with certain information, including a promotion board's crediting plan, in connection with its processing of a potential grievance challenging the nonselection of a bargaining unit employee for promotion. The request stated that the Union was requesting the information to fulfill its representational responsibilities. On June 29, 1989, the Respondent replied to the request and advised the Union that it could not supply the requested information and that it had referred the request to the General Counsel's office of the Bureau of Prisons in Washington, D.C. On July 11, 1989, the Union was informed that the Respondent's Washington, D.C. office had referred the Union's request to its regional office in Philadelphia.

On September 11, 1989, the Union's Chief Steward renewed his request for the crediting plan. On September 18, 1989, the Respondent's Personnel Officer refused to furnish the crediting plan. The Respondent contended that the crediting plan was not disclosable under section 7114 of the Statute. It also contended that because the position in question was outside of the bargaining unit, the matter was not grievable under the parties' negotiated grievance procedure.

The General Counsel issued a complaint alleging, in relevant part, that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by refusing to provide the Union with the requested crediting plan. Based on a stipulated record, the Authority found, as relevant here, that the crediting plan was necessary for the Union to fulfill its representational functions under section 7114(b)(4) of the Statute. Accordingly, the Authority found that the Respondent's failure to provide the requested information to the Union constituted a violation of the Statute.

B. HUD I

In December 1989, the Respondent selected a candidate for a Financial Operations Analyst position under a vacancy announcement. In early 1990, an employee who was not on the best-qualified list and was not selected for the position discussed the matter with the Union and contended that she should have been on the list because she had the same experience and ratings as others who were on the list.

On April 12, 1990, the Union wrote to the Respondent and requested that the Respondent furnish it with a copy of the merit staffing file, including the crediting plan, for the vacancy announcement no later than 10 days after the request was received. The Union's letter stated that several employees had potential grievances and the requested data was needed for the Union to decide whether to file such grievances. After the Respondent did not reply, the Union sent another letter to the Respondent on April 30, 1990, repeating its earlier request.

On November 6, 1990, the Respondent replied to the Union's requests for information. With respect to the crediting plan, the Respondent stated that a blanket disclosure of the plan was not required by law, but that it would consider a request for the plan if the request was made in conjunction with a specific grievance in which the Union was the representative.

The General Counsel issued a complaint alleging, in relevant part, that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by refusing to provide the Union with the requested crediting plan. The Administrative Law Judge found that the Respondent was obligated to furnish the requested crediting plan to the Union. In HUD I, the Authority, citing Allenwood Federal Prison Camp, adopted the Judge's conclusion that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by refusing to furnish the requested crediting plan to the Union.

C. HUD II

During 1990, the Respondent posted three vacancy announcements for positions in the Office of Public and Indian Housing (PIH). After several unit employees who were not selected for those positions complained to the Union because they felt that their nonselection was the result of discrimination, the Union requested the crediting plans for the vacancy announcements. The Respondent refused to furnish the crediting plans to the Union. The Respondent advised the Union that it would consider releasing the crediting plans when a request was made by the Union in conjunction with a specific grievance in which the Union was designated as representative.

The General Counsel issued a complaint alleging, in relevant part, that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by refusing to furnish the Union with the requested crediting plans regarding the three vacancy announcements for positions in PIH. The Administrative Law Judge found that, consistent with Allenwood Federal Prison Camp, the Respondent was obligated to furnish the requested crediting plans to the Union. In HUD II, the Authority, citing Allenwood Federal Prison Camp and HUD I, adopted the Judge's conclusion that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by refusing to furnish the requested crediting plans to the Union.

III. Court's Decision in Bureau of Prisons v. FLRA

In Bureau of Prisons v. FLRA, the court rejected the standard the Authority used in Allenwood Federal Prison Camp, HUD I, and HUD II to determine whether the requested crediting plans were "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of bargaining" within the meaning of section 7114(b)(4)(B) of the Statute. The court noted that in assessing the unions' need for the crediting plans, the Authority "applied a broad standard, focusing upon the relevance of the information sought" and that, under the Authority's standard, "a union satisfies the necessity