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.
As for the majority's finding that the requests were overbroad, the majority relies on the fact that, as it states: "the Charging Party referenced its receipt of information regarding just the lodging center of the Services Division, yet the information request sought, without further explanation, information regarding the entire Services Division." Majority Opinion at 9. That is, the majority faults the Charging Party for seeking information regarding unit employees in the entire Services Division based on information it had already received regarding only one portion of the Division.
This is utterly illogical. The Charging Party stated, based on the lodging center information it had already received, that it "fe[lt] as though Union members may have been unfairly treated." GC Exhs. 2, 2(a). Accordingly, it requested information regarding a broader portion of the Services Division. In so doing, the Charging Party referenced information it received about the lodging center because that is the only information it had. Consistent with the majority's view, the Charging Party could have established particularized need for the whole Division only if it already possessed information regarding the whole Division. Indeed, the majority's "catch 22" analysis suggests that the Charging Party may have fared better if it had not referenced the lodging center information at all. This construction of the Statute is both unfair and untenable.
Moreover, the majority's finding that the Respondent's request for clarification placed the burden on the Charging Party to provide further explanation is contrary to Authority precedent. In this regard, the IRS framework, 50 FLRA at 670, requires a respondent to explain its interests in not disclosing the requested information and does not permit a conclusory or bare assertion. Here, the Respondent's response, in its entirety, provided as follows:
1. This office has carefully considered your request for information and your stated particularized need for this information . . . . Your requests state that the information being requested is relevant and necessary in order to determine if union members are being unfairly treated compared to non-union members and to possibly represent bargaining unit employee(s) in a potential grievance(s) or ULP(s). The union's request as stated needs clarification in order for management to assess the need.
2. If you have any questions, [management] can be reached at . . . .
General Counsel's Exhibit 3 (emphasis added); Judge's Decision at 5.
As even a casual reading of this response confirms, the Respondent provided absolutely no indication as to what aspects of the requests needed clarification and neither asserted nor established any countervailing anti-disclosure interests. Applying the burdens set forth in IRS here, where the Charging Party adequately articulated and explained its interests in disclosure of the information, the Respondent's request for clarification, without further explanation, constituted a bare assertion. See IRS, 50 FLRA at 670. To the extent that the Respondent believed that the Charging Party's requests were overbroad, as it now asserts in its exceptions, it was required to express this to the Charging Party. [n1] See United States Dep't of Justice, INS, N. Region, Twin Cities, Minn., 51 FLRA 1467, 1476 (1996). By considering the Respondent's request for clarification adequate, the majority applies the burdens set forth in IRS unevenly, requiring unions to play a guessing game as to how to clarify an information request. Enforcing a union's right to information under the Statute shouldn't be a game.
Based on the foregoing, I would find that the Respondent violated the Statute by failing to provide the Charging Party with the requested performance evaluation and award forms. I would deny the Respondent's exceptions, adopt the Judge's decision, and order the Respondent to provide the requested information, cease and desist from its violations, and post an appropriate notice.
I would also reject the Respondent's claim that the Charging Party did not establish particularized need because it was not apparent how the requested information, encompassing employees in diverse locations and occupations, could demonstrate disparate treatment of union members. When addressing a broad claim of discrimination, such as that in this case, the Authority does not employ a "similarly situated" analysis in determining disparate treatment. See, e.g., United States Penitentiary, Leavenworth, Kan., 55 FLRA 704, 712 (1999); AFGE, Local 3354, AFL-CIO, 58 FLRA 184, 187-90 (2002).