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The decision of the Authority follows:
49 FLRA No. 57
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF THE AIR FORCE,
AIR FORCE LOGISTICS COMMAND
WRIGHT-PATTERSON AIR FORCE BASE, OHIO
AMERICAN FEDERATION OF GOVERNMENT
ORDER REMANDING CASE
March 23, 1994
Before Chairman McKee and Members Talkin and Armendariz.(1)
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached decision of the Administrative Law Judge. The Respondents, Department of the Air Force, Washington, D.C. (Respondent Air Force) and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio (Respondent AFLC), filed an opposition to the exceptions.
The consolidated complaint alleges that Respondents Air Force and AFLC violated section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to furnish the Union with certain information requested under section 7114(b)(4) of the Statute. The Judge concluded that the Respondents had not violated the Statute and recommended dismissal of the complaints.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. On consideration of the Judge's decision, the exceptions, and the entire record, we conclude that the complaints in this case must be remanded to the Judge for further proceedings.
A. Case No. CH-CA-20193
In July 1989, a B-52 bomber exploded at Kelly Air Force Base (Kelly AFB), killing one bargaining unit employee and injuring several others. Investigations of the accident were conducted by Respondent AFLC and by the Occupational Safety and Health Administration (OSHA). Reports resulting from both of those investigations were given to the Union.
Beginning in December 1990, a team under the direction of the Office of the Inspector General, Air Force Logistics Command (AFLC IG) conducted a review of safety programs at five Air Logistics Centers, including Kelly AFB. Upon completion of the review, the AFLC IG issued a "Report of Process Effectiveness Review" (hereinafter IG Report).
The Union requested a copy of the IG Report from Respondent AFLC under section 7114(b)(4) of the Statute, claiming that the IG Report contained the results of "an inspection regarding the B-52 explosion . . . ." G.C. Exh. 6. The Union stated that it needed the IG Report in order to "determine if grounds exist for submission of a grievance because of non-compliance with the report in addressing the citations cited by OSHA as well as others." Id. Respondent AFLC replied to the Union that the IG Report was releasable only by the Secretary of the Air Force because the report was compiled by the Air Staff and included investigations of all of the Air Logistics Centers. Respondent AFLC also advised the Union that it required clarification of the Union's request because the Union's reference to "'citations cited by OSHA as well as others' [was] too general." G.C. Exh. 8. The Union did not respond to Respondent AFLC's request for clarification.
B. Case No. CH-CA-20459
Beginning in October 1991, a team under the direction of the AFLC IG conducted a follow-up review of the safety programs at each of the individual Air Logistics Centers previously reviewed. As a result, the AFLC IG issued a "Report of Follow-Up Safety Program Integration, Process Effectiveness Review" (hereinafter Follow-Up IG Report). The Union requested a copy of the Follow-Up IG Report, setting forth its need as follows:
A copy of the . . . report is necessary to assist us in developing proposals for the upcoming Master Labor Agreement (MLA) negotiations. The report is also necessary to determine whether any employee or Union rights have been violated and if they have, so the Union can take appropriate remedial action . . . .
G.C. Exh. 16.
Respondent AFLC replied to the Union that it did not have the authority to release the Follow-Up IG Report and that the report should be requested from Respondent Air Force. Respondent AFLC advised the Union, however, that it was unlikely that Respondent Air Force would release the report because, consistent with the court's decision in National Labor Relations Board v. FLRA, 952 F.2d 523 (D.C. Cir. 1992)(NLRB v. FLRA), the Follow-Up IG Report constituted "guidance and advice" to management officials and the Union had not demonstrated a "particularized showing of need" for the information. G.C. Exh. 18 at 2. The Union did not respond to this letter.
III. Judge's Decision
A. Case No. CH-CA-20193
As noted above, the Union asserted that the IG Report resulted from an AFLC inspection concerning the B-52 explosion and that it needed the report to determine whether the Respondents had complied with violations "cited by OSHA as well as others" after that explosion. G.C. Exh. 6. The Judge examined the IG Report in camera and found that the report "did not address the safety citations issued by OSHA or others, and did not mention or refer to the 1989 B-52 explosion[.]" Judge's Decision at 8. The Judge concluded that, because "the Union had not clarified [its] request, as recommended by Respondent AFLC, Respondent AFLC could not make an informed judgment as to whether or to what extent the information was necessary." Id. Consequently, the Judge recommended that the complaint be dismissed.
B. Case No. CH-CA-20459
The Judge found that the Union's statement that the Follow-Up IG Report was needed "'to determine whether any employee or Union rights have been violated'[,]" did not establish that the data was necessary. Judge's Decision at 9. The Judge noted that the Union "did not state what violations it believed might have been disclosed by the Follow-Up IG Report or how the Follow-Up Report might relate to a potential grievance by an employee or the Union[.]" Id. However, the Judge also found that the Follow-Up IG Report would be useful to the Union in developing health and safety proposals.
The Judge concluded that, as the Follow-Up IG Report constituted managerial guidance and advice, the Union needed to show a "particularized need" for the document under the court's decision in NLRB v. FLRA. Id. at 10. Applying that decision, the Judge found that the Union's stated need for the information was "outweighed by the Respondents' interest in obtaining and retaining a confidential, frank analysis of its programs together with recommendations for correcting problems and deficiencies." Id. at 11. Consequently, the Judge concluded that the Follow-Up IG Report was not necessary, within the meaning of section 7114(b)(4) of the Statute, and he recommended that the complaint be dismissed.
IV. Positions of the Parties
A. General Counsel's Exceptions
The General Counsel asserts that the Union's need for the initial IG Report was "obvious" from the request and its circumstances, especially because the IG Report "had some relationship to the 1989 incident at Kelly, whether it was specifically mentioned [in the report] or not." G.C. Exceptions at 6 (emphasis in original). The General Counsel asserts that the Union's request, which referred to "potential grievances related to safety," was sufficient to establish that the report was necessary. Id.
The General Counsel claims that the Union needed the Follow-Up IG Report to determine whether employee or Union rights had been violated and to enforce the safety requirements of the parties' agreement. The General Counsel claims that the Union's need to formulate bargaining proposals based on the current "state of safety processes at the [Air Logistics] Centers" outweighs any of the Respondents' interests. Id. at 9.
B. Respondents' Opposition
The Respondents argue that the Union's requests for both IG Reports are "defective" because the requests were based only on the Union's "speculation" that the reports contained certain information related to the B-52 incident. Opposition at 9. The Respondents argue that "this is not a case where an IG report led directly to a specific change in the conditions of employment, or where it formed the basis for an adverse action against a bargaining unit member." Id. at 13. The Respondents maintain that their interests in refusing to disclose the reports "clearly outweigh the nebulous claim of the Union that the substance of the report might, at some future time be of some value in formulating bargaining proposals or might possibly relate to some speculative violation of employee rights." Id. at 14 (emphasis in original).
V. Analysis and Conclusions
At the outset, we reject the Judge's conclusion that the complaint in Case No. CH-CA-20193 should be dismissed because, based on the Union's request for the initial IG Report, "Respondent AFLC could not make an informed judgment as to whether or to what extent the information was necessary." Judge's Decision at 8. Although the Union's request mischaracterized, in part, the origin and content of the IG Report, the request clearly identified the report which was sought, and clearly tied the request to the Union's desire to investigate safety matters involving unit employees. We find the request sufficient to enable the Respondents to determine whether to disclose the report under section 7114(b)(4) of the Statute. For example, U.S. Department of Defense, Defense Logistics Agency, Defense Contract Administration Services Region (Boston, Massachusetts), 31 FLRA 800, 808-09 (1988).
In National Park Service, National Capital Region, United States Park Police, 48 FLRA 1151 (1993) (Member Talkin concurring in part and dissenting in part) (National Park Service), the majority of the Authority addressed the standard to be applied to determine whether certain documents are necessary, within the meaning of section 7114(b)(4). In particular, the Authority adopted the court's decision in NLRB v. FLRA, and stated, as relevant here, that:
[A]n agency is not obligated to provide a union with requested documents containing advice, guidance, counsel, or training materials provided for management officials under section 7114(b)(4) of the Statute unless the union demonstrates a particularized need, as set forth by the court [in NLRB v. FLRA], for such information.
National Park Service, 48 FLRA at 1160. The Authority noted that the court in NLRB v. FLRA set forth two examples of instances where a union could establish a particularized need for advice, guidance, counsel, or training provided for management officials. In particular, the court stated that a union might establish such a need "where the union has a grievable complaint covering the information." NLRB v. FLRA, 952 F.2d at 532 (emphasis omitted). As an example of such a demonstration, the court posited a situation where a statute or a bargaining agreement "may impose a duty on the agency regarding predecisional deliberation, and the duty may then ground a grievable claim of right in the employee or union." Id. at 532-33. The court also stated that particularized need for information could be established "when the disputed document creates a grievable action." Id. at 533.
It is clear and undisputed that both requested IG Reports constitute managerial guidance, advice, and counsel. In this regard, the reports were created at the request of management officials for use by management officials in making decisions regarding safety processes in five Air Logistics Centers, and in assessing whether previous recommendations for improvement by the IG have been carried out. The reports contain not only an assessment of current safety operations but also opinions and recommendations to management for correcting deficiencies and making improvements in such operations.
As the requested IG Reports constitute guidance, advice and counsel for management officials, it is necessary, consistent with our decision in National Park Service, to determine whether the Union has established a particularized need for the reports. In this regard, at the time of the Judge's decision and the exceptions in this case, the Authority had not adopted NLRB v. FLRA, and there was no other basis on which the parties should have concluded that it was necessary to establish a particularized need, as discussed in National Park Service, for the requested information. Further, the Judge did not determine whether such need had been established for the IG Report and, although he cited NLRB v. FLRA in determining that the Union did not establish such need for the Follow-Up IG Report, the Judge did not discuss or address whether this case encompassed either of the two examples of particularized need set forth in that opinion and discussed in National Park Service.(2)
In these circumstances, we find that the complaints in Case Nos. CH-CA-20193 and CH-CA-20459 must be remanded to the Judge for further proceedings. On remand, absent settlement, the Judge should provide an opportunity to the parties to address whether the Union established a particularized need for either or both of the requested IG Reports. In this regard, we do not address what circumstances, in addition to the two examples set forth by the court in NLRB v. FLRA, may establish such need. See National Park Service, 48 FLRA at 1165, n.13.(3)
The complaints are remanded to the Judge for further proceedings consistent with this decision.
(If blank, the decision does not have footnotes.)
1. Member Talkin's separate concurring opinion is found at note 3 below.
2. We note the General Counsel's assertion that "[g]iven the very comprehensive provisions of the parties' [collective bargaining agreement], the potential for a 'grievable complaint' related to the subject matter of the IG Report is clear." G.C. Exceptions at 6. Although the General Counsel makes no similar specific claim regarding the Follow-Up IG Report, the General Counsel claims that "[a]s with the initial report, the Union's need for this report is fairly obvious." Id. at 7.
3. For the reasons stated in my partial dissent in National Park Service, I disagree with the position adopted by my colleagues that in cases of this nature a union must demonstrate a particularized need for requested information that conforms to the standard set forth in NLRB v. FLRA. In National Park Service, I also articulated a definition of necessity that I would apply in determining whether a union has established that requested information is necessary so as to require disclosure under section 7114(b)(4)(B) of the Statute. Given the circumstances of this case, I agree that a remand would be helpful in adducing evidence to assist the Authority in determining whether the requested information should be disclosed, regardless of the standard applied to reach that result.