File 2: Opinion of Member Pope
[ v60 p266 ]
Dissenting Opinion of Member Pope:
In finding that the Charging Party did not establish particularized need for the requested performance evaluation and award information for unit employees in the Services Division, the majority employs an untenable construction of the Statute and applies burdens established in existing precedent unevenly to favor the Respondent. Accordingly, I dissent.
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 to a request, a respondent has the burden to establish any countervailing anti-disclosure interests in more than a conclusory way. See id. at 670.
Here, the Charging Party's requests for information regarding the Services Division informed the Respondent that it needed the information to: (1) "properly evaluate fair and equitable treatment for Union members who have received awards in correlation to their evaluations[;]" (2) "determine if Union members are awarded the same as non-union members[;]" and (3) "properly perform [its] representational responsibilities and duties." Judge's Decision at 4. The requests also stated the Charging Party's belief that "Union members may have been unfairly treated" with regard to awards and that this belief was derived from examination of information regarding a portion of the Services Division provided by the Respondent in settlement of a ULP charge regarding a prior request. Id. The Charging Party also stated that examination of the requested information would enable it to decide whether to file a grievance or an unfair labor practice charge.
By their plain terms, the requests: (1) articulated the reason for requesting the information -- to determine whether union members received fair awards relative to non-union members; and (2) established a connection between the uses to which that information would be put and the representational purposes for which it was requested -- a need for the information to represent unit employees in a possible grievance or unfair labor practice charge. The majority cites no precedent, and I am aware of none, requiring the Charging Party to state more. In this regard, I note that a request need not be so specific as to require a union to reveal its strategies or compromise the identity of potential grievants who desire anonymity. See IRS, 50 FLRA at 670 n.13. In these circumstances, clear precedent requires a conclusion [ v60 p267 ] that the requests satisfied the particularized need standard set forth in IRS. See Health Care Fin. Admin., 56 FLRA 503, 506-07 (2000); Health Care Fin. Admin., 56 FLRA 156, 162 (2000).
In concluding that the Charging Party did not establish a particularized need, the majority contends that the requests were overbroad and that the Respondent's request for clarification placed the burden on the Charging Party to provide further explanation for the requests. For the reasons that follow, the majority is wrong on both counts.