File 2: Opinion of Member Cabaniss
[ v55 p1262 ]
Dissenting Opinion of Member Cabaniss:
I believe that the Respondents have been found to have violated the Statute based on a standard that is no longer appropriate, having been, quite rightly, rejected upon judicial review. [n1] Therefore, I respectfully dissent.
The Judge found that the information requested by the Charging Party was reasonably available within the meaning of section 7114(b)(4) of the Statute. In doing so, he relied on Authority precedent holding that information is reasonably available unless it is available only through extreme or excessive means. The Judge specifically cited Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, El Paso, Texas, 43 FLRA 697 (1991). However, as the majority notes, that case was reversed, and that standard was held to be "off the mark" because it "practically ignores the `reasonableness' quotient that the [S]tatute requires[,]" in Department of Justice v. FLRA, 991 F.2d 285, 291 (5th Cir. 1993) (DOJ v. FLRA). In so holding, the court specifically found that our interpretation of the Statute was "contrary to Congress's stated goal of promoting efficient government." Id.
The majority acknowledges that since DOJ v. FLRA, the Authority has not revisited its standard for determining whether data requested under section 7114(b)(4) is reasonably available. However, my colleagues find that there is no need to do so in this case because "under any legitimate standard, the data requested is reasonably available." Slip opinion at 12. I do not agree. While the Respondents certainly could have done a better job of addressing this issue, the record does contain some evidence suggesting that the requested information might not be reasonably available under a proper standard. The Judge acknowledged that in order to obtain the requested information, it might be necessary for officials at each of the approximately 90 institutions operated by Respondent the Federal Bureau of Prisons (BOP) across the nation to go through their "logs and files." Judge's Decision at 9. In addition, BOP's Chief of Labor-Management Relations indicated in general terms that retrieval of the requested information would be onerous, testifying that "god knows how long it would take[.]" Transcript at 201. [n2]
Moreover, I find the evidence presented by the General Counsel on the issue of reasonable availability to be equally thin. This is significant since the reasonable availability of the requested information is an element of the violation of the Statute alleged by the General Counsel in the complaint. See DOJ v. FLRA, 991 F.2d at 291 n.4.
I note that although the facts in this case are not as egregious as those in DOJ v. FLRA, some of the same factors which led the court in that case to conclude that the requested information was not reasonably available are present here. As in that case, the relevant documents are kept in numerous locations (in this case, about 90) spread out over a large area, and this large scale effort is being requested to support a single grievance of a single employee concerning a single, and rather minor, agency action (in this case, a one day suspension).
For the above reasons, I believe it is inappropriate to resolve this case without first developing a revised standard for determining whether information requested by unions under section 7114(b)(4) is reasonably available, one that gives more appropriate consideration to the time and effort necessary to produce the requested documents than does the "extreme or excessive means" test. Therefore, I would develop such a standard, and would remand this case for a determination as to whether, under the revised standard, the information sought by the Charging Party in this case was reasonably available. [n3]
Footnote # 1 for 55 FLRA No. 202 - Opinion of Member Cabaniss
I am aware that, as noted by my colleagues in footnote 5, we do not always acquiesce in unfavorable decisions by United States Courts of Appeals, even where, as here, the events in question occurred within the geographical jurisdiction of the Court of Appeals that rendered the unfavorable decision. However, because the reasoning of DOJ v. FLRA is persuasive, I would acquiesce in that decision, just as we did in the decision in National Labor Relations Board v. Federal Labor Relations Authority, 952 F.2d 523 (D.C. Cir. 1992), finding that the standard we previously used to determine whether information requested by unions is "necessary" was inappropriate under the Statute.
Footnote # 2 for 55 FLRA No. 202 - Opinion of Member Cabaniss
I do not find the testimony indicating that the requested information "could, in fact, be obtained[,]" discussed by my colleagues at page 12 of the slip opinion, to be significant. In my view, the issue in this case is not whether it would have been possible for the Agency to obtain the requested information by combing through logs and files in 90 different locations nationwide. Rather, the issue is whether it is reasonable, and consistent with the goal of promoting efficient government, that we require it to do so.
Footnote # 3 for 55 FLRA No. 202 - Opinion of Member Cabaniss
Since I believe the majority's finding that the Respondents violated the Statute is, at best, premature, I would not reach the issue of whether the remedy recommended by the Judge is appropriate. However, I agree that under circumstances similar to those presented by this case, our remedial powers include the ability to direct that a specific agency official sign the posting.