United States, Department of the Army, Army Corps of Engineers, Portland District, Portland, Oregon (Respondent) and United Power Trades Union (Charging Party/Union)

[ v60 p413 ]

60 FLRA No. 82

UNITED STATES
DEPARTMENT OF THE ARMY
ARMY CORPS OF ENGINEERS
PORTLAND DISTRICT
PORTLAND, OREGON
(Respondent)

and

UNITED POWER TRADES UNION
(Charging Party/Union)

SF-CA-04-0066

_____

DECISION AND ORDER

November 17, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

      This case is before the Authority on exceptions to the attached decision of the Administrative Law Judge (Judge) filed by the Respondent. The General Counsel (GC) filed an opposition to the Respondent's exceptions.

      The complaint alleges that the Respondent violated § 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (Statute) by denying the Union's request to provide particular information. The Judge found that the Respondent violated the Statute as alleged. For the following reasons, we deny the Respondent's exceptions and adopt the Judge's findings, conclusions, and recommended order.

II.     Background

      As relevant here, the Union President informed the Commander of the Respondent's Portland District (Commander) that bargaining unit employees had complained about nepotism at the Dalles-John Day Project (Project). The Commander appointed an investigating officer to conduct an informal investigation into, among other things, "[t]he family relationships that exist among the employees at the . . . Project including whether the hiring, supervision or performance on the jobs have been unduly influenced by said family relationships in violation of any laws, regulations, or policy in place and relating to nepotism in federal employment." Judge's Decision at 4. Subsequently, the Commander informed the Union President that the investigating officer had completed an investigative report (the report) and had concluded that there was no merit to the allegations.

      The Union later initiated a grievance (the 2003 grievance) alleging that the Respondent violated law and regulation when the Chairman of the Project (the Chairman) was the senior rater of his son and in a position to recommend his son for promotion. The Union requested pertinent sections of the report, [n1]  stating that it needed the report in order to assess the merits of allegations "concerning the nepotism in the Power Plant Training Program and the Prohibited Personnel Practices that continue to occur there[,]" including not only allegations involved in the 2003 grievance, but also an allegation that the Chairman's son "is receiving preferential treatment by not being required to rotate through the craft crews in accordance with the Regional Hydropower Trainee Program Agreement." Jt. Ex. 4 at 3. In this connection, the Union stated that it "need[ed] to review any documents that would prove or disprove these allegations or impact our grievance and any settlement efforts or arbitration efforts[]" and that the report would not only enable the Union to "come to [its] own conclusions[]" regarding those allegations, but also might "show other violations of our CBA[,] law or regulations for which we will need to seek remedies." Id. at 3-4. Finally, the Union concluded that it needed the report in order to fulfill its "representational responsibility to its members to enforce personnel law rules regulations and the CBA[,]" including "[s]ettling grievances or pursuing them with all available data in the best manner possible[.]" Id. at 4.

      The Respondent denied the Union's request, asserting that the Union had not articulated a particularized need for the report because, in order to be necessary to the Union, "the information must reflect information useful in the grievance." Jt. Ex. 5 at 2. In this regard, the Respondent stated that "[t]he report discusses only events predating the report's conclusion in February 2002[,]" and "any grievance based on these events needed to be filed some eighteen months ago." Id. The Respondent also stated, in this connection, that "management is not obligated to respond to a data request whose identified use is a plainly untimely grievance." Id. Finally, the Respondent asserted that the report constitutes guidance, advice, counsel or training provided for management officials or supervisors, relating to collective [ v60 p414 ] bargaining, that is exempt from disclosure under § 7114(b)(4)(C) of the Statute.

      The Union filed a charge, and the GC issued a complaint, alleging that the Respondent's denial of the request violated § 7116(a)(1), (5) and (8) of the Statute. [n2] 

III.     Judge's Decision

      The Judge found that neither the Union's statement of particularized need nor the scope of the investigation into alleged nepotism was "limited to an individual grievance, to a specific incident or to particular employees." Judge's Decision at 9. The Judge determined that the Union's request set forth the reason that the Union needed the report, the uses to which it would put the report, and the nexus between those uses and the Union's representational responsibilities, and that the request was sufficient to permit the Respondent to make an informed response. Accordingly, the Judge concluded that the Union had articulated a particularized need for the information. Further, the Judge declined to consider the Respondent's claim, raised for the first time in its post-hearing brief, that disclosure would violate the confidentiality of witnesses interviewed for the report, because the Respondent did not raise that issue at or near the time of the Union's information request.

      In addition, the Judge rejected the Respondent's assertion that the report was exempt from disclosure as guidance, advice, counsel or training provided for management officials or supervisors, relating to collective bargaining, within the meaning of § 7114(b)(4)(C) of the Statute. In this connection, the Judge found that the investigator "was not tasked with the responsibility of recommending a strategy for the Respondent to follow in dealing with the Union[,]" but rather, "[h]is assignment was limited to the substantive issue of nepotism." Id. at 10. The Judge also stated that, although the investigator's findings regarding nepotism "might affect the Respondent's bargaining strategy, those findings are distinct from recommendations concerning the process of collective bargaining." Id. Further, the Judge determined that, "[t]o the extent that the report does contain[] advice, guidance and counsel for management officials relating to collective bargaining, those portions of the report may be sanitized." Id.

      The Judge concluded that the Respondent violated § 7116(a)(1), (5) and (8) of the Statute by refusing to provide the Union with the report.

IV.      Positions of the Parties

A.      Respondent's Exceptions

      The Respondent argues that the Judge erred in finding that the Union articulated a particularized need for the information. Specifically, the Respondent contends that the report, which involves the hiring of the Chairman's son in 2001, is unrelated to the grievance involving the son's performance rating, supervision, and promotion in 2003. The Respondent also contends that it asked the Union to clarify its particularized need, but the Union did not respond. Further, the Respondent claims that disclosure would violate the confidentiality of witnesses interviewed for the report.

      The Respondent also argues that the Judge erred in finding that the report is not exempt from disclosure under § 7114(b)(4)(C). In this connection, the Respondent asserts that the investigation was sought by the Union and conducted by management "to resolve concerns in the collective bargaining process," and as a result, the report constituted "advice on processing then-pending grievances and other matters raised in the collective bargaining process[.]" Exceptions at 9.

      Finally, the Respondent claims that the individuals who requested the data were not employees of the District, and, thus, the denial of the request did not interfere with an employee in the exercise of his or her rights. Accordingly, the Respondent claims that § 7116(a)(1) of the Statute "does not apply." Id. at 6 n.1.

B.      GC's Opposition

      The GC claims that the Judge correctly found that the Union established particularized need and that the report was not exempt from disclosure under § 7114(b)(4)(C). In the latter connection, the GC states that the report was the result of a general investigation into allegations of nepotism, not in response to a grievance or unfair labor practice (ULP) charge and, thus, did not involve recommendations concerning how management should resolve a grievance or ULP charge. Further, according to the Union, the Respondent's discussion of confidentiality of witnesses should not be considered because -- as the Judge found --it was not raised at or near the time of the Union's request for information. Finally, the GC asserts that the Judge did not err in finding a violation of § 7116(a)(1) of the Statute. [ v60 p415 ]

V.     Analysis and Conclusions

A.      The Judge did not err in finding that the Respondent was required to furnish the information.

      Under § 7114(b)(4) of the Statute, an agency must furnish information to a union, upon request and "to the extent not prohibited by law," if that information is: (1) "normally maintained by the agency in the regular course of business;" (2) "reasonably available[;]" (3) "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining;" and (4) not "guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining[.]" 5 U.S.C. § 7114(b)(4). The only factors in dispute in this case are the third and fourth factors, which are discussed separately below.

1.     The Judge did not err in finding that the information was "necessary."

      In order to demonstrate that requested information is "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining" under § 7114(b)(4) of the Statute, a union "must establish a particularized need for the information 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). The union's responsibility for articulating its interests in the requested information requires more than a conclusory assertion and must permit an agency to make a reasoned judgment as to whether the disclosure of the information is required under the Statute. Id. at 670. The agency is responsible for establishing any countervailing anti-disclosure interests and, like the union, must do so in more than a conclusory way. Id. See also Health Care Fin. Admin., 56 FLRA 156, 159 (2000). Such interests must be raised at or near the time of the union's request. See United States DOJ, Fed. Bureau of Prisons, Fed. Det. Ctr., Houston, Tex., 60 FLRA 91, 93 (2004) (FBP Houston) (citation omitted).

      The Authority has found particularized need established where, for example, the union stated that it was requesting information to determine if complaints by employees about a current policy are true and correct and to represent the employees "in any rightful charges against the [a]gency." United States INS, United States Border Patrol, Del Rio, Tex., 51 FLRA 768, 774-76 (1996) (Border Patrol Del Rio), reconsid. denied, 51 FLRA 1561, aff'd on other grounds sub nom., AFGE Nat'l Border Patrol Council, Local 2366 v. FLRA, 114 F.3d 1214 (D.C. Cir. 1997). Here, the Union explained that it needed the information not only in connection with the 2003 grievance, but also to: (1) assess the merits of an additional allegation that the manager's son was "receiving preferential treatment by not being required to rotate through the craft crews in accordance with the Regional Hydropower Trainee Program Agreement[;]" (2) "come to [its] own conclusions[]" regarding "statements made by bargaining unit members concerning the nepotism in the Power Plant Training Program and the Prohibited Personnel Practices that continue to occur there[;]" and (3) determine whether there were "other violations of our CBA[,] law or regulations for which [it would] need to seek remedies." Jt. Ex. 4 at 3-4. In other words, the Union was requesting the information to determine whether complaints by employees about a current policy are true and correct and to represent the employees in any rightful charges against the Agency. See Border Patrol Del Rio, 51 FLRA at 774-76.

      As the Union was not requesting the information solely in connection with the 2003 grievance, the Respondent's claim that the Union did not need the report in order to pursue the 2003 grievance does not provide a basis for concluding that the Union lacked particularized need for the report. In any event, the Union had a substantial interest in the report in connection with the 2003 grievance. In this connection, a union has a substantial interest in information that will assist it in determining whether to proceed to arbitration. See Dep't of the Air Force, Scott Air Force Base, Ill., 51 FLRA 675, 682 (1995), aff'd sub nom., Dep't of the Air Force, Scott Air Force Base, Ill. v. FLRA, 104 F.3d 1396 (D.C. Cir. 1997). Given the nature of the report -- the results of an investigation into alleged nepotism at the Project -- it was reasonable for the Union to conclude that the information could assist it in assessing the validity of, and determining whether to proceed to arbitration on, the 2003 grievance as well as additional claims of nepotism. Thus, the Union had a substantial interest in this information, and the Respondent's assertion in its response regarding timeliness of grievances does not establish that the Union lacked particularized need for the report.

      Although the Respondent asserts that it asked the Union to clarify its particularized need and that the Union did not respond, the record does not support this assertion. In this connection, the Respondent's denial of the request stated, in pertinent part, "If you have any questions regarding this response please do not hesitate [ v60 p416 ] to contact me." Jt. Ex. 5 at 3. The response did not request clarification or give any indication that the Respondent was unclear as to the Union's reasons for needing the report. Accordingly, the Respondent's assertion is misplaced.

      For the foregoing reasons, we conclude that the Judge did not err by finding that the Union articulated, with specificity, why it needed the requested information, including the uses to which the union would put the information, and the connection between those uses and the Union's representational responsibilities under the Statute. See IRS, Wash., D.C., 50 FLRA at 669.

      Turning to the Respondent's stated anti-disclosure interest -- that disclosure of the report would violate the confidentiality of witnesses -- as noted previously, an agency must state its anti-disclosure interests at or near the time of the information request. See FBP Houston, 60 FLRA at 93. The Judge found, and the Respondent does not dispute, that the issue of confidentiality of witnesses in the report was not raised at or near the time of the Union's request. See Judge's Decision at 10 n.8. Further, the Respondent did not raise concerns regarding confidentiality in its denial of the request, see Jt. Ex. 5, and the Respondent provides no evidence that these concerns were communicated to the Union at or near the time of the request. Accordingly, we do not consider the Respondent's arguments about these matters in assessing the Union's particularized need. See United States DOJ, Fed. Bureau of Prisons, Fed. Corr. Inst., Forrest City, Ark., 57 FLRA 808, 812 (2002) (Member Pope dissenting in part on other grounds).

      For the foregoing reasons, the Judge did not err in finding that the information was "necessary" under § 7114(a)(4)(B), and we deny the exception.

2.      The Judge did not err in finding that § 7114(b)(4)(C) of the Statute does not exempt the information from disclosure.

      The Respondent challenges the Judge's conclusion that § 7114(b)(4)(C) of the Statute does not exempt the report from disclosure. The Judge found that, even assuming portions of the report concern matters covered by § 7114(b)(4)(C), those portions of the report could be sanitized. As the Judge's decision expressly provides that the Respondent is not required to disclose any sections of the report that may be covered by § 7114(b)(4)(C), the Respondent's exception does not demonstrate that the Judge's decision is inconsistent with that statutory section. We note, in this regard, that any disputes that may arise as to the extent of sanitization are appropriate for resolution at the compliance stage of this case. See DOJ, United States INS, United States Border Patrol, El Paso, Tex., 40 FLRA 792 (1991), recons. denied, 41 FLRA 259.

      In any event, for the following reasons, the Judge did not err in finding that the report does not concern matters covered by § 7114(b)(4)(C) of the Statute. In this connection, § 7114(b)(4)(C) exempts from disclosure information that contains guidance, advice, counsel, or training for management officials relating specifically to the collective bargaining process, such as: (1) courses of action agency management should take in negotiations with the union; (2) how a provision of the collective bargaining agreement should be interpreted and applied; (3) how a grievance or a ULP charge should be handled; and (4) other labor-management interactions which have an impact on the union's status as the exclusive bargaining representative of the employees. See NLRB, 38 FLRA 506, 522-23 (1990), aff'd sub nom. NLRB v. FLRA, 952 F.2d 523 (D.C. Cir. 1992).

      Section 7114(b)(4)(C) "constitutes a narrow exception to an agency's duty to furnish data under [§] 7114(b) of the Statute." NLRB, 38 FLRA at 520. Section 7114(b)(4)(C) does not exempt from disclosure guidance, advice, or counsel to management officials concerning the conditions of employment of bargaining unit employees. See id. at 523. Further, a document that merely contains recommendations regarding how to improve the management and operations of an agency is not exempt from disclosure under § 7114(b)(4)(C). See Dep't of HHS, Wash., D.C., 49 FLRA 61, 67-69 (1994) (HHS) (Member Talkin concurring as to other matters). Such a document will be exempt from disclosure under § 7114(b)(4)(C) only if it addresses courses of action that management should take with respect to negotiations, the interpretation and application of a collective bargaining agreement, or the handling of grievances or ULPs. See id. In this connection, a document is exempt from disclosure under § 7114(b)(4)(C) only if it constitutes "strategic information concerning the bargaining process." Id. at 69. Accord NLRB v. FLRA, 952 F.2d at 530-31 (upholding Authority's "distinction between nonstrategic and strategic information: information about the subject of collective bargaining versus information about the bargaining itself.")

      The report at issue here was the result of an investigation into alleged nepotism at the Project. The Respondent provides no basis for concluding that the report addresses courses of action Agency management should take in negotiations with the Union, how a provision of the collective bargaining agreement should be interpreted and applied, how a grievance or a ULP [ v60 p417 ] charge should be handled, or other labor-management interactions which have an impact on the union's status as the exclusive bargaining representative of the employees. In this connection, the Respondent does not dispute that no grievance concerning nepotism had been filed at or near the time of the investigation. [n3]  Further, even assuming that the report contains recommendations concerning steps management should take in improving the work environment, there is no basis for concluding that these recommendations constitute "strategic information concerning the bargaining process." HHS, 49 FLRA at 69.

      For the foregoing reasons, we conclude that the Judge did not err in finding that § 7114(b)(4)(C) does not exempt the report from disclosure, and we deny the exception.

B.      The Judge did not err in finding a violation of § 7116(a)(1).

      A violation of § 7116(a)(1) is commonly found as a "derivative violation," that is, an interference with employee rights that flows from another violation under the Statute. See United States Dep't of Veterans Affairs, Wash. Reg'l Office, 58 FLRA 261, 261 (2002) (citation omitted). It is well established that an agency commits a derivative violation of § 7116(a)(1) by violating § 7116(a)(5). See id. Although the Respondent argues that the Judge erred by finding a violation of § 7116(a)(1) because the Union representatives are not employees of the District, we disagree. In this regard, the Authority has found that an agency's interference with a union's right to designate the union's representatives violates § 7116(a)(1), even when the intended union representative is a non-employee. See Bureau of Indian Affairs, Isleta Elementary Sch., Pueblo of Isleta, N.M., 54 FLRA 1428, 1438-40 (1998). Further, in situations where an agency has bypassed a union in violation of § 7116(a)(5), the Authority has found a violation of § 7116(a)(1) because a bypass "demeans the Union and inherently interferes with the rights of employees to designate and rely on the Union for representation." See SSA, 55 FLRA 978, 983 (1999) (citation omitted) (then-Member Cabaniss dissenting on other grounds). Here, denial of information interferes with the rights of represented employees, regardless of whether the Union officials representing them are themselves employees.

      For the foregoing reasons, we conclude that the Judge did not err in finding a derivative violation of § 7116(a)(1) of the Statute, and we deny the exception.

VI.     Order

      Pursuant to § 2423.41 of the Authority's Regulations and § 7118 of the Statute, the United States Department of the Army, Army Corps of Engineers, Portland District, Portland, Oregon, shall:

      1.      Cease and desist from:

           (a)      Failing and refusing to provide the United Power Trades Organization (Union) with a copy of the portions of the 2002 AR 15-6 report concerning nepotism at the Dalles-John Day Project, including all relevant testimony, evidence and reports.

           (b)      In any like or related manner, interfering with, restraining or coercing its bargaining unit employees in the exercise of the rights assured them under the Statute.

      2.      Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

           (a)      Provide the Union with a copy of the portions of the 2002 AR 15-6 report concerning nepotism at the Dalles-John Day Project, including all relevant testimony, evidence and reports.

           (b)      Post the attached Notice for 60 days at its facilities in the Portland District on forms to be furnished by the Authority. The Notice is to be signed by the Commander of the Portland District and is to be posted at all locations in the Portland District where employees represented by the Union are assigned, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced or covered by any other material.

           (c)      Pursuant to § 2423.41(e) of the Regulations of the Authority, notify the Regional Director of the San Francisco Region of the Authority in writing, within 30 days of this Order, as to what steps have been taken to comply. [ v60 p418 ]


NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the United States Department of the Army, Army Corps of Engineers, Portland District, Portland, Oregon has violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice.

WE HEREBY NOTIFY OUR EMPLOYEES:

WE WILL NOT fail or refuse to provide the United Power Trades Organization with a copy of the portions of the 2002 AR 15-6 report concerning nepotism at the Dalles-John Day Project, including all relevant testimony, evidence and reports.

WE WILL NOT, in any like or related manner, interfere with, restrain or coerce bargaining unit employees in the exercise of the rights assured them under the Federal Service Labor-Management Relations Statute.

WE WILL provide the United Power Trades Organization with a copy of the portions of the 2002 AR 15-6 report concerning nepotism at the Dalles-John Day Project, including all relevant testimony, evidence and reports.

                                               _____________________
                               (Agency)

Dated:                                         By:     

                                              (Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, San Francisco Regional Office, whose address is: Federal Labor Relations Authority, 901 Market Street, Suite 220, San Francisco, CA 94103, and whose telephone number is: 415-356-5002.


File 1: Authority's Decision in 60 FLRA No. 82
File 2: ALJ's Decision


Footnote # 1 for 60 FLRA No. 82 - Authority's Decision

   Although the Union requested only the sections of the report that concerned nepotism, we will refer to those requested sections as "the report" herein.


Footnote # 2 for 60 FLRA No. 82 - Authority's Decision

   We note that the consolidated complaint originally alleged that the Respondent also violated the Statute by denying another, previous Union request for the same information, see GC Ex. 1(c) at 2-4, but the complaint was amended to no longer include that allegation, see Tr. at 6. As the Union's first request and the Respondent's first denial are not at issue in this case and are not alleged to have a bearing on the analysis herein, we do not address those matters further.


Footnote # 3 for 60 FLRA No. 82 - Authority's Decision

   We note the Respondent's assertion that "[t]he investigation covered four issues, two of which were pending filed grievances at the time the investigation was ordered." Exceptions at 2. The record reveals, in this regard, that at or near the time of the investig