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49 FLRA No. 56

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF JUSTICE

BUREAU OF PRISONS

ALLENWOOD FEDERAL PRISON CAMP

MONTGOMERY, PENNSYLVANIA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL 33

LOCAL NO. 148

AFL-CIO

(Charging Party/Union)

2-CA-00107

(40 FLRA 449 (1991))

U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 476, AFL-CIO

(Charging Party/Union)

3-CA-10066

(42 FLRA 1002 (1991))

_____

U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 476, AFL-CIO

(Charging Party/Union)

3-CA-10256

(43 FLRA 748 (1991))

_____

DECISION AND ORDER ON REMAND

March 23, 1994

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

These cases are before the Authority on remand from the United States Court of Appeals for the District of Columbia Circuit in United States Department of Justice, Bureau of Prisons, Allenwood Federal Prison Camp, Montgomery, Pennsylvania v. FLRA, 988 F.2d 1267 (D.C. Cir. 1993) (Bureau of Prisons v. FLRA).⁽¹⁾ The complaints in the cases allege, as relevant here, that the Respondents violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to furnish the Unions with certain crediting plans requested pursuant to section 7114(b)(4) of the Statute.⁽²⁾

For the following reasons, we conclude that the complaints must be remanded for further proceedings.

II. Background

The facts of these cases are fully set forth in the Authority's decisions in Allenwood Federal Prison Camp, HUD I, and HUD II, and are summarized here for the convenience of the reader.

A. Allenwood Federal Prison Camp

On June 19, 1989, the Union's Chief Steward requested the Respondent's Warden to furnish the Union with certain information, including a promotion board's crediting plan, in connection with its processing of a potential grievance challenging the nonselection of a bargaining unit employee for promotion. The request stated that the Union was requesting the information to fulfill its representational responsibilities. On June 29, 1989, the Respondent replied to the request and advised the Union that it could not supply the requested information and that it had referred the request to the General Counsel's office of the Bureau of Prisons in Washington, D.C. On July 11, 1989, the Union was informed that the Respondent's Washington, D.C. office had referred the Union's request to its regional office in Philadelphia.

On September 11, 1989, the Union's Chief Steward renewed his request for the crediting plan. On September 18, 1989, the Respondent's Personnel Officer refused to furnish the crediting plan. The Respondent contended that the crediting plan was not disclosable under section 7114 of the Statute. It also contended that because the position in question was outside of the bargaining unit, the matter was not grievable under the parties' negotiated grievance procedure.

The General Counsel issued a complaint alleging, in relevant part, that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by refusing to provide the Union with the requested crediting plan. Based on a stipulated record, the Authority found, as relevant here, that the crediting plan was necessary for the Union to fulfill its representational functions under section 7114(b)(4) of the Statute. Accordingly, the Authority found that the Respondent's failure to provide the requested information to the Union constituted a violation of the Statute.

B. HUD I

In December 1989, the Respondent selected a candidate for a Financial Operations Analyst position under a vacancy announcement. In early 1990, an employee who was not on the best-qualified list and was not selected for the position discussed the matter with the Union and contended that she should have been on the list because she had the same experience and ratings as others who were on the list.

On April 12, 1990, the Union wrote to the Respondent and requested that the Respondent furnish it with a copy of the merit staffing file, including the crediting plan, for the vacancy announcement no later than 10 days after the request was received. The Union's letter stated that several employees had potential grievances and the requested data was needed for the Union to decide whether to file such grievances. After the Respondent did not reply, the Union sent another letter to the Respondent on April 30, 1990, repeating its earlier request.

On November 6, 1990, the Respondent replied to the Union's requests for information. With respect to the crediting plan, the Respondent stated that a blanket disclosure of the plan was not required by law, but that it would consider a request for the plan if the request was made in conjunction with a specific grievance in which the Union was the representative.

The General Counsel issued a complaint alleging, in relevant part, that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by refusing to provide the Union with the requested crediting plan. The Administrative Law Judge found that the Respondent was obligated to furnish the requested crediting plan to the Union. In HUD I, the Authority, citing Allenwood Federal Prison Camp, adopted the Judge's conclusion that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by refusing to furnish the requested crediting plan to the Union.

C. HUD II

During 1990, the Respondent posted three vacancy announcements for positions in the Office of Public and Indian Housing (PIH). After several unit employees who were not selected for those positions complained to the Union because they felt that their nonselection was the result of discrimination, the Union requested the crediting plans for the vacancy announcements. The Respondent refused to furnish the crediting plans to the Union. The Respondent advised the Union that it would consider releasing the crediting plans when a request was made by the Union in conjunction with a specific grievance in which the Union was designated as representative.

The General Counsel issued a complaint alleging, in relevant part, that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by refusing to furnish the Union with the requested crediting plans regarding the three vacancy announcements for positions in PIH. The Administrative Law Judge found that, consistent with Allenwood Federal Prison Camp, the Respondent was obligated to furnish the requested crediting plans to the Union. In HUD II, the Authority, citing Allenwood Federal Prison Camp and HUD I, adopted the Judge's conclusion that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by refusing to furnish the requested crediting plans to the Union.

III. Court's Decision in Bureau of Prisons v. FLRA

In Bureau of Prisons v. FLRA, the court rejected the standard the Authority used in Allenwood Federal Prison Camp, HUD I, and HUD II to determine whether the requested crediting plans were "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of bargaining" within the meaning of section 7114(b)(4)(B) of the Statute. The court noted that in assessing the unions' need for the crediting plans, the Authority "applied a broad standard, focusing upon the relevance of the information sought" and that, under the Authority's standard, "a union satisfies the necessity requirement of § 7114(b)(4)(B) if the data sought 'would be useful to the [u]nion in the investigation and/or presentation of a potential grievance.'" 988 F.2d at 1269 (quoting U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 37 FLRA 1310, 1320 (1990)) (emphasis by court).

The court found that the Authority's interpretation of "necessity" under section 7114(b)(4)(B) of the Statute was inconsistent with two cases decided by the court after the Authority issued its decisions in the three instant cases. The court stated that its decisions in National Labor Relations Board v. FLRA, 952 F.2d 523 (D.C. Cir. 1992) (NLRB v. FLRA)⁽³⁾ and Department of the Air Force, Scott Air Force Base v. FLRA, 956 F.2d 1223 (D.C. Cir. 1992) (Scott Air Force Base v. FLRA) "made clear that § 7114(b)(4)(B) requires a union to demonstrate a 'particularized need' for information it seeks." 988 F.2d at 1270. The court stated that in evaluating whether a union has satisfied this standard, "the Authority must consider 1) the union's particularized need for the requested information sought, . . . and 2) the countervailing anti-disclosure interests of the agency[.]" Id. (citations omitted).

The court stated that it was "constrained to conclude that the [Authority's] decisions do not pass muster under the necessity requirement of § 7114(b)(4)(B), as clarified by" the court in NLRB v. FLRA and Scott Air Force Base v. FLRA. Id. The court found that in each of the cases before it, the Authority "failed to consider whether the union had a particularized need, comparable to the potentially grievable complaints considered in" NLRB v. FLRA and Scott Air Force Base v. FLRA. Id. at 1271. The court further found that in each of the cases the Authority "impermissibly minimized the important anti-disclosure interests of the agencies." Id.

Accordingly, the court remanded the cases to the Authority to "ascertain the necessity of the requested crediting plans in accordance with the Statute, as construed in" NLRB v. FLRA and Scott Air Force Base v. FLRA. Id. at 1272.

IV. Analysis and Conclusions

We adopt the court's decision in Bureau of Prisons v. FLRA as law of the case. As noted by the court in Bureau of Prisons v. FLRA, the court issued its decisions in NLRB v. FLRA and Scott Air Force Base v. FLRA after the Authority issued its decisions in Allenwood Federal Prison Camp, HUD I, and HUD II. Accordingly, there was no basis on which the Judges, the Regional Director, or any of the parties in the instant cases could have taken into account the court's decisions in NLRB v. FLRA and Scott Air Force Base v. FLRA. In these circumstances, we conclude that the complaints must be remanded for further proceedings in accordance with the court's decision in Bureau of Prisons v. FLRA. See U.S. Army Armament Research, Development and Engineering Center, Picatinny Arsenal, New Jersey, 49 FLRA 77, 83 (1994).

V. Order

The complaints are remanded for further proceedings consistent with this decision. Specifically, the complaint in Allenwood Federal Prison Camp is remanded to the Regional Director, the complaint in HUD I is remanded to the Chief Administrative Law Judge for assignment to an administrative law judge,⁽⁴⁾ and the complaint in HUD II is remanded to the Judge in that case.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The appeal of the Authority's decision in United States Department of Justice, Bureau of Prisons, Allenwood Federal Prison Camp, Montgomery, Pennsylvania, 40 FLRA 449 (1991) (Allenwood Federal Prison Camp) was docketed as United States Department of Justice, Bureau of Prisons, Allenwood Federal Prison Camp, Montgomery, Pennsylvania v. FLRA, No. 91-1293. The appeal of the Authority's decision in United States Department of Housing and Urban Development, 42 FLRA 1002 (1991) (HUD I) was docketed as United States Department of Housing and Urban Development v. FLRA, No. 91-1634. The appeal of the Authority's decision in United States Department of Housing and Urban Development, 43 FLRA 748 (1991) (HUD II) was docketed as United States Department of Housing and Urban Development v. FLRA, No. 92-1062. The three appeals were consolidated for decision in Bureau of Prisons v. FLRA.

2. Crediting plans are documents developed by agencies to rate and rank candidates for specific positions.

3. In National Park Service, National Capital Region, United States Park Police, 48 FLRA 1151 (1993) (Member Talkin concurring in part and dissenting in part), the Authority adopted the court's decision in NLRB v. FLRA.

4. The administrative law judge who issued the recommended decision and order in HUD I is no longer with the Authority.

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