File 2: Opinion of Member Pope
[ v57 p819 ]
Member Pope, dissenting in part:
I agree with the majority's decision in all respects but one. On that one point, I would find that the Union Party established particularized need for the requested list of disciplinary and adverse actions.
A union satisfies its burden to demonstrate particularized need "by articulating, with specificity, why it needs the requested information, including the uses to which the union will put the information, and the connection between those uses and the union's representational responsibilities under the Statute." IRS, Wash., D.C., 50 FLRA 661, 669 (1995) (IRS). In response, a respondent has the burden to establish any anti-disclosure interests in more than a conclusory way. Id. at 670.
In this case, the Union submitted at least three separate information requests. [n1] In all three requests, the Union asked for the list of disciplinary and adverse actions; in the third request the Union also asked for the SIS Manual, the investigatory policy documents, the disciplinary policy documents, and the Hendrickson investigatory file. [n2] While the first two requests are relevant to understanding the evolution of the dispute, it is clear that the issue here is whether, as the Judge stated, the Union articulated particularized need in its third request. [n3] Judge's Decision at 10.
In that third request, the Union offered three separate reasons for requesting the disciplinary and adverse action files. First, the Union stated that the information was needed to determine "whether or not a grievance should be filed in the case of the disciplinary action recently imposed on Mr. S. Hendrickson." GC. Ex. 6 at 1. Second, the Union stated that, based on information it had already supplied to the Respondent, it had "reason to believe that supervisors, executive staff, and other non-bargaining unit members are held to a different, and less severe, standard of conduct than bargaining unit members." Id. at 2. Third, the Union stated that a bargaining unit employee had "complained that there is disparate treatment in disciplinary and adverse actions based on race, gender, and ethnic origin." Id. The Union added:
The requested information will enable the Union to fulfill its representational responsibilities to represent employees under the Statute and administer the contract by allowing the Union to compare the discipline imposed on bargaining unit members as compared to non-bargaining unit members, supervisors/department heads, and executive staff members and to compare the discipline imposed on various races, ethnic origins, and genders, to determine if a grievance under the contract or other action is warranted.
Id. The Union also added that the temporal limits on the request (disciplinary and adverse action files taken since July 1996) were based on the time that the current code of conduct for employees had been in place. Id. at 3.
I believe that any reasonable application of the particularized need standard -- which "requires parties to articulate and exchange their respective interests in disclosing information" -- results in a conclusion that, in the third request, the Union established such need. IRS, 50 FLRA at 670. In that request, the Union not only referenced a particular grievant by name, but also referenced its need to investigate specific complaints regarding discrimination based on unit status as well as race, gender, and ethnicity. I am unaware of any precedent requiring the Union to state more. I note that, as the majority acknowledges, "a request need not be so specific as, for example, to request a union to reveal its strategies or compromise the identity of potential grievants who wish anonymity." IRS, 50 FLRA at 670 n.13.
In concluding that the Union did not establish particularized need, the majority does a disservice to both the factual record and Authority precedent.
As for the record, the majority states that, in its response to the Union's third request, the Respondent "indicated to the Union that it had failed to specify whether and how all the information sought was needed for a grievance concerning Hendrickson or to indicate whether it was needed for some other employee." Majority Opinion at 17. This is incorrect. The Respondent's response to the third request contains no such indication. [n4] In a similar vein, the majority states that the Respondent's response to the third request was sufficient to apprise the Union what additional information was needed and implies that the Union failed to respond to repeated requests from the Respondent for additional information. However, the fact is that the Respondent never provided the Union the slightest indication of [ v57 p820 ] what further information it needed. Indeed, the Respondent rejected the third request for exactly the same reasons, in exactly the same words, it had rejected the previous two requests. Despite the fact that the Union had offered significant new and different reasons for the requested list of disciplinary and adverse actions in the third request, [n5] the Respondent did nothing more than repeat, as if by rote, its previous reasons for denying the first and second requests. See GC Ex. 3 at 1-2 (Response to first request); GC Ex. 5 at 1-2 (Response to second request); GC Ex. 8 at 3 (Response to third request).
As to Authority precedent, none of the cases relied on by the majority involve facts remotely like those in this case. In both United States Customs Serv., S. Cent. Region, New Orleans Dist., New Orleans, La., 53 FLRA 789, 799 (1997), and United States Dep't of the Treasury, IRS, Wash., D.C., 51 FLRA 1391, 1395-96 (1996), the respondents made specific requests that the unions narrow their requests. Here, by contrast, the Respondent made no such request and, other than its "cut and paste" insistence that the Union had not established a need for the requested files, made no attempt to explain why, in its view, the requested information was not necessary. In the other case relied on by the majority, United States Dep't of Labor, Wash., D.C., 51 FLRA 462, 476 (1995), the union did not explain why it needed records for the period of time requested. As noted above, the Union here explained that "[t]he time frame is limited to the time that the current code of conduct for employees has been in place." GC Ex. 6 at 3. Simply put, there is no Authority precedent supporting the majority's outcome in this case.
By finding that the Respondent did not violate the Statute in denying the request at issue here, the majority permits the Respondent -- and encourages agencies in other cases -- to stonewall a union's request for information. This does not "`facilitate and encourage the amicable settlement of disputes . . .' and, thereby, effectuate the purposes and policies of the Statute." IRS, 50 FLRA at 670. It also does not enhance "both parties' abilities to effectively and timely discharge their collective bargaining responsibilities under the Statute." Id. Instead, the majority "impose[s] an insurmountable burden on a party requesting information." [n6] Id. at 671.
Based on the foregoing, I would find that the Respondent violated the Statute by failing to provide the Union with the requested list of disciplinary and adverse actions. [n7]
File 1: Authority's Decision in 57 FLRA No. 179 and Appendix
File 2: Opinion of Member Pope
File 3: ALJ's Decision
Footnote # 1 for 57 FLRA No. 179 - Opinion of Member Pope
The request referenced by the Judge as the first request states that it is, in fact, "the second request." GC. Exh. 2. Nevertheless, as there are no exceptions on this point, I refer to the requests in the same way as the Judge.
Footnote # 2 for 57 FLRA No. 179 - Opinion of Member Pope
As there is agreement that the Union established particularized need for the SIS Manual, the investigatory policy documents, the disciplinary policy documents, and the Hendrickson investigatory file, I address here only the requested list of disciplinary and adverse actions.
Footnote # 3 for 57 FLRA No. 179 - Opinion of Member Pope
Footnote # 4 for 57 FLRA No. 179 - Opinion of Member Pope
While the Respondent noted that the Union had requested information on behalf of Hendrickson as well as another unit employee, the Respondent made no claim that the Union failed to specify which information would be used for which claim. The Respondent merely noted that the Union had not identified the race, gender, or ethnic origin of the other employee. GC. Ex. 8 at 3.
Footnote # 5 for 57 FLRA No. 179 - Opinion of Member Pope
The majority's statement, Majority Opinion note 10, that the Union's statement in its third request that the requested information would permit a more specific request if necessary suggests Union recognition that its request was overbroad is both speculative and irrelevant. Not even the Respondent offers this construction of the request.
Footnote # 6 for 57 FLRA No. 179 - Opinion of Member Pope
The majority's response to this misses the point. The Union's success in establishing particularized need for other information establishes only that the majority is evaluating the requests inconsistently. The record establishes that the Union provided far more information, with far more specificity, regarding its need for the requested list of disciplinary and adverse actions than it did for the other requested information.
Footnote # 7 for 57 FLRA No. 179 - Opinion of Member Pope
I would reject the Respondent's argument that disclosure of this information is prohibited by the Privacy Act. While the Judge erred in stating that sanitization of the requested information would necessarily avoid Privacy Act concerns, see AFGE, Local 1858, 56 FLRA 1115, 1117-18 (2001), the record does not establish that any individual's identity would be discernable from the sanitized information requested.