United States Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Forrest City, Arkansas (Respondent) and American Federation of Government Employees, Local 0922 (Charging Party/Union)

[ v62 p308 ]

62 FLRA No. 54

UNITED STATES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
FORREST CITY, ARKANSAS
(Respondent)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 0922
(Charging Party/Union)

DA-CA-80834
(57 FLRA 808 (2002))

_____

DECISION AND ORDER
ON REMAND

December 14, 2007

_____

Before the Authority: Dale Cabaniss, Chairman, and
Wayne C. Beyer and Carol Waller Pope, Members [n1] 

I.     Statement of the Case

      This case is before the Authority on remand from the United States Court of Appeals for the Eighth Circuit (Eighth Circuit). The court directed the Authority to take action consistent with the court's decision. FLRA v. United States Dep't of Justice, Federal Bu. of Prisons, FCI, Forrest City, Ark., 395 F.3d 845 (D.C. Cir. 2005) (rehearing denied May 3, 2005) (FCI, Forrest City II).

      For the reasons that follow, we order the Respondent to provide the Union with specified portions of the Special Investigative Supervisor's Manual (SIS Manual).

II.      Background  [n2] 

      This case arose when a bargaining unit employee (hereinafter the employee) at the Federal Correctional Institution, Forrest City, Arkansas, requested and took annual leave. Questions subsequently arose regarding the employee's actions leading up to the leave approval, and the Respondent conducted an investigation. The employee ultimately received a one-day suspension for absence without leave and dishonest conduct.

      Considering a possible grievance, the Union requested the SIS Manual and other documents under § 7114(b)(4) of the Federal Service Labor-Management Relations Statute (Statute) to determine whether the Respondent properly conducted its investigation into the employee's conduct. [n3]  It is the Respondent's refusal to provide the SIS Manual to the Union that gives rise to the dispute in this case.

A.      Authority Decision in 57 FLRA 808

      The complaint alleged that the Respondent violated § 7116(a)(1), (5), and (8) of the Statute by failing to provide the Union with information requested under § 7114(b)(4) in connection with a disciplinary action against the employee. Specifically, as relevant herein, the Union requested the SIS Manual and any and all operations memoranda, program statements, and manuals that provide guidance on the conduct of investigations.

      The Administrative Law Judge (Judge) determined that the Union had established a particularized need for the SIS Manual as required under § 7114(b)(4) and concluded that the Respondent had violated the Statute by failing to disclose that information. Specifically, as to the Manual, the Judge found that the Union established a need for, and the Respondent had an obligation to provide, "the Chapter or Chapters dealing with staff misconduct and employee investigations." United States Dep't of Justice, Federal Bu. of Prisons, FCI, Forrest City, Ark., 57 FLRA 808, 827 n.4 (2002) (FCI, Forrest City I). Based on that finding, the Judge recommended [ v62 p309 ] an order that, as relevant herein, required the Respondent to provide the Union with "the SIS [M]anual and any and all operations memoranda, program statements, and manuals that indicate how an investigation should be conducted[.]" Id. at 832. The recommended order did not specify the portions of the SIS Manual that were to be provided to the Union.

      The Authority rejected the Respondent's exceptions regarding disclosure of the SIS Manual and, in agreement with the Judge, determined that the Respondent violated the Statute by failing to provide that Manual. The Authority determined that the Judge's recommended order was "sufficiently specific to put the Respondent on notice as to what is required, and any disputes as to particular information covered by the order in this regard should be resolved in compliance proceedings." Id. at 817. The Authority's order required the Respondent to provide the Union with the SIS Manual and any and all investigatory policy documents, but did not specify which portions of the SIS Manual were to be provided to the Union.

B.      Court of Appeals Decision in FCI, Forrest City II

      The Respondent provided the Union with Chapter 9 of the SIS Manual pertaining to investigations of employee misconduct, as well as other portions of the Manual. [n4]  FCI, Forrest City II, 395 F.3d at 848 (quoting Union's Letter to the Court, dated April 27, 2004). The Authority filed an enforcement action with the United States Court of Appeals for the Eighth Circuit seeking release of the entire SIS Manual. In response, the court found that the Respondent was "required to furnish [the Union] with those portions of the SIS Manual that could assist [the Union] in representing the disciplined employee[,]" but was not required to furnish "information bearing no relationship to [the Union's] representational duties." Id. at 850. The court noted language in the Judge's and the Authority's decisions that suggested that a narrower order was intended, but found that the order itself required disclosure of the entire SIS Manual. As such, the court set aside the Authority's order.

      The court concluded that it did not have "sufficient evidence" before it "to determine what portions of the SIS Manual are relevant to [the Union's] representational duties or whether the [Respondent] has complied with the Authority's order." Id. at 851. Consequently, the court remanded the case to the Authority for the Authority "to issue an amended order that specifically addresses the portions of the SIS Manual the [Respondent] is required to furnish [the Union]." Id. The court suggested, in this regard, that the Authority's amended order "specifically list the relevant pages, or portions of pages, of the SIS Manual that remedy the unfair labor practices and order the [Respondent] to furnish only those limited, and precise, portions of the SIS Manual." Id.

C.      Authority's Order

      Upon remand, the Authority determined that the record was inadequate for the purpose of complying with the court's decision. Specifically, the SIS Manual was not a part of the record in the case and, thus, there was insufficient evidence for the Authority to make the necessary determinations as to whether the portions of the SIS Manual not already furnished to the Union should be provided to the Union under § 7114(b)(4) of the Statute. [n5] 

      Accordingly, the Authority ordered the Respondent to file with the Authority one complete copy of the SIS Manual, as it existed at the time of the Union's original request for information in this case. The Authority stated that the SIS Manual would be made a part of the record of the case and maintained under seal for purposes of in camera review by the Authority pursuant to and in compliance with the court's order. The Respondent provided the SIS Manual as ordered by the Authority.

III.      Analysis and Conclusions

      Consistent with the court remand in FCI, Forrest City II, our task on remand is to determine the parts of the SIS Manual that are "necessary" for the Union's representational purposes, which are described as those portions of the SIS Manual that are relevant to "whether the [Respondent] properly conducted the employee investigation" that took place in this case. 395 F.3d at 847. Specifically, we must identify the sections of the SIS Manual "that deal with employee investigations." Id. at 851.

      [ v62 p310 ] Our in camera review of the SIS Manual provided by the Respondent discloses that the Manual addresses more than just employee misconduct investigations. In this regard, for example, the Manual contains provisions that address not only employee disciplinary investigations, but also employee criminal investigations and investigations into inmate misconduct, including inmate criminal activity. Because the underlying proceeding in this case and the Union's request for information pertain only to whether the Respondent properly conducted an investigation into alleged employee misconduct, we confine the release of information from the Manual to matters related to how investigations of employee misconduct are to be conducted.

      As noted above, our review of the SIS Manual indicates that certain portions of the manual pertain to both employee and inmate investigations and to both criminal and disciplinary investigations. With particular regard to Sections 801 through 807 of the Manual, we conclude that while these sections fall within the category of documents covered by the Union's request and must be disclosed, the Agency has a significant interest in ensuring that this information is not disseminated beyond the immediate need of the Union for the information. In view of these unique facts and circumstances, we will condition the disclosure and require that Sections 801 through 807: (1) will not be disclosed further by the Union; (2) will be used only in connection with the Union's representational responsibilities in this case; and (3) will be returned to the Respondent at the conclusion of the proceedings underlying this case. Any disputes concerning these restrictions may be resolved as a compliance matter pursuant to 5 C.F.R. § 2423.41(e).

      We note in this connection that the record of the case that was before the Eighth Circuit does not contain copies of the parts of the Manual actually disclosed. Those portions were provided to the court by the Respondent under seal and were not made part of the record. See Letter of Michael Gans, Clerk, United States Court of Appeals, Eighth Circuit, dated June 10, 2004. While the parties are in agreement that Chapter 9 of the Manual, and redacted portions of other chapters, have been disclosed, their descriptions as to those other parts are unclear.

      Accordingly, with the exception of the Program Statement, the Table of Contents, and Chapter 9, we have reviewed the entire Manual to determine what must be released. In so doing, we have identified those sections and/or subsections that relate to the Union's responsibility in connection with employee investigations, and have directed their disclosure. Sections and/or subsections that primarily concern inmate matters or other organizational and operations requirements that do not have a bearing on employee misconduct and investigations are not disclosed. As the Table of Contents, which includes the titles of the Chapters and sections has already been provided to the Union, there is no need here to further describe them. Therefore, and based on the foregoing, we find that the following portions of the SIS Manual are "necessary," within the meaning of § 7114(b)(4) of the Statute, and must be disclosed to the Union:

Chapter 1

Section 100
Section 101
Section 102
Section 103
Section 103.2
Section 103.4
Section 103.5
Section 103.6
Section 103.8
Section 106
Section 113

Chapter 3

Section 303.3
Section 303.4

Chapter 4

Section 400
Section 401
Section 403
Section 407
Section 408
Section 409

Chapter 8

Section 800
Section 801
Section 802
Section 803
Section 804
Section 805
Section 806
Section 807
Section 808

Chapter 14

Section 1400
Section 1401: Except for the Introductory paragraph
Section 1401.1
[ v62 p311 ] Section 1401.2
Section 1401.3
Section 1401.4
Section 1401.5
Section 1401.6
Section 1401.7
Section 1401.8
Section 1402
Section 1402.1
Section 1402.3
Section 1402.4
Section 1402.6
Section 1402.7
Section 1402.8
Section 1402.9
Section 1402.10
Section 1402.11
Section 1403

Attachments

Attachment A2
Attachment J1
Attachment J2
Attachment J3
Attachment W
Attachment M

      In sum, we have carefully reviewed the SIS Manual provided by the Respondent. Pursuant to that review, clarifying the order in our decision in this case, we find that, under § 7114(b)(4) of the Statute, the foregoing identified material is necessary for the Union's representational purposes in the circumstances of this case. Accordingly, the Respondent is ordered to provide that material to the Union.

IV.      Order

      Pursuant to § 2423.41 of our Regulations and § 7118 of the Statute, the United States Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Forrest City, Arkansas, shall:

      1.      Cease and desist from:

           (a)      Failing and refusing to furnish portions of the SIS Manual necessary for the Union's representational purposes under § 7114(b)(4) of the Statute.

           (b)      In any like or related manner interfering with, restraining or coercing unit employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

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

           (a)      Promptly and fully furnish the following portions of the SIS Manual necessary for the Union's representational purposes in this case under § 7114(b)(4) of the Statute. Sections 801-807: (1) may not be further disclosed by the Union; (2) may be used only in connection with the Union's representational responsibilities in this case; and (3) must be returned to the Respondent at the conclusion of the proceedings underlying this case.

          Chapter 1

Section 100
Section 101
Section 102
Section 103
Section 103.2
Section 103.4
Section 103.5
Section 103.6
Section 103.8
Section 106
Section 113

Chapter 3

Section 303.3
Section 303.4

Chapter 4

Section 400
Section 401
Section 403
Section 407
Section 408
Section 409

Chapter 8

Section 800
Section 801
Section 802
Section 803
Section 804
Section 805
Section 806
Section 807
Section 808

Chapter 14

Section 1400
Section 1401: Except for the Introductory paragraph
Section 1401.1
Section 1401.2
[ v62 p312 ] Section 1401.3
Section 1401.4
Section 1401.5
Section 1401.6
Section 1401.7
Section 1401.8
Section 1402
Section 1402.1
Section 1402.3
Section 1402.4
Section 1402.6
Section 1402.7
Section 1402.8
Section 1402.9
Section 1402.10
Section 1402.11
Section 1403

Attachments

Attachment A2
Attachment J1
Attachment J2
Attachment J3
Attachment W
Attachment M

           (b)      Post at its facilities in Forrest City, Arkansas, where bargaining unit employees are located copies of the attached Notice on forms to be provided by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Warden, and posted and maintained for 60 consecutive days thereafter. 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 our Regulations, notify the Regional Director, Dallas Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.


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 Justice, Federal Bureau of Prisons, Federal Correctional Institution, Forrest City, Arkansas violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this order.

We hereby notify bargaining unit employees that:

WE WILL NOT fail and refuse to furnish portions of the SIS Manual necessary for the Union's representational purposes under § 7114(b)(4) of the Statute.

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

WE WILL promptly and fully furnish portions of the SIS Manual necessary for the Union's representational purposes under § 7114(b)(4) of the Statute.

                     __________________________________
                      (Activity)

Dated: __________ By: ________________________

      (Signature) (Title)

This notice must remain posted for 60 consecutive days from the date of the 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 for the Federal Labor Relations Authority, Dallas Regional Office, whose address is: 525 Griffin Street, Suite 926, LB 107, Dallas, Texas, 75202-1906, and whose telephone number is: (214) 767- 4996.


Chairman Cabaniss, dissenting in part:

      I join with my colleagues as to which sections of the Manual must be released, because they are relevant to the Union's "representational duties", except as to Sections 801 - 807. I would find that these sections do not relate to the representational role of the Union either in this case or in general. I am also convinced these sections should not be released as they have a law-enforcement sensitive, if not security-sensitive, character. I do not believe that the Circuit Court intended for us to ignore such factors. The relationship of these sections to representational duties is so remote, I cannot conclude that their release is required when balanced against the Agency's interest in protecting the information.



Footnote # 1 for 62 FLRA No. 54 - Authority's Decision

   The separate opinion of Chairman Cabaniss is set forth at the end of this decision.


Footnote # 2 for 62 FLRA No. 54 - Authority's Decision

   The issue before the Authority on remand is the scope of the Authority's order requiring disclosure of the SIS Manual. Discussion of the case herein will be limited to facts and rulings concerning that portion of the order.


Footnote # 3 for 62 FLRA No. 54 - Authority's Decision

   § 7114(b)(4) of the Statute provides, in relevant part, as follows:

(b) The duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation--
. . . .
(4) in the case of an agency, to furnish to the exclusive representative involved, or its authorized representative, upon request and, to the extent not prohibited by law, data--
. . . .
(B) which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subject