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The decision of the Authority follows:
49 FLRA No. 117
FEDERAL LABOR RELATIONS AUTHORITY
SACRAMENTO AIR LOGISTICS CENTER
MCCLELLAN AIR FORCE BASE, CALIFORNIA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
ORDER REMANDING CASE
June 10, 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 to the attached decision of the Administrative Law Judge filed by the Respondent. The General Counsel filed an opposition to the exceptions.
The consolidated complaint alleges that the Respondent violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to furnish the Union certain information requested pursuant to section 7114(b)(4) of the Statute concerning a proposed reprimand and a reprimand of a bargaining unit employee.
The Judge concluded that the Respondent violated the Statute as alleged and ordered that the Respondent furnish the requested information in a sanitized form. The Respondent excepted to the Judge's finding that the material is "necessary" for full and proper understanding of subjects within the scope of collective bargaining, within the meaning of section 7114(b)(4)(B) of the Statute. No exceptions were filed to the Judge's determination that the other elements of section 7114(b)(4) were satisfied or that the information should be supplied in a sanitized form.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision, the exceptions and opposition, and the entire record, we conclude that the complaint in this case must be remanded to the Judge for further proceedings.
The American Federation of Government Employees, AFL-CIO (AFGE) represents a nationwide unit that includes employees of the Respondent. The Union is an agent of AFGE for purposes of representing the unit employees at the Respondent's facility.
On three different occasions in 1992, the Union requested a document that was later identified as a Disciplinary Litigation Advice Form. At the time of the first request, on January 3, 1992, the Union requested the form "for full and proper understanding" of a notice of proposed reprimand received by an employee who had allegedly arrived at work 15 minutes late on November 19, 1991, and who had been charged with 15 minutes of Absence Without Approved Leave (AWOL) for the incident. Judge's decision at 7. At that time the Union requested a "Checklist for Disciplinary Action/ERS Disciplinary Action Advice Form . . . ." Id. The Respondent refused to provide the document on the ground that it was an attorney work product. On March 18, 1992, the Union requested the same document with regard to the Respondent's decision to reprimand the employee, stating that it needed the document for "full and proper understanding of the decision to reprimand" and to "determine if procedures used to substantiate the decision to reprimand were in accordance with all applicable laws, rules, and regulations." Id. at 8. This time the Respondent stated that the requested form was no longer used and, therefore, was unavailable. On April 9, 1992, the Union requested, for the same reasons, the "form(s) used in lieu of the Checklist for Disciplinary Action/ERS Disciplinary Action Advice Form." Id. at 9. The Respondent again refused to supply the document, stating that if such a form existed, it "would be an internal management document not used for the purpose of processing a grievance." Id.
As set forth in more detail in the Judge's decision, the Judge found that from about 1988 to 1991 the Respondent prepared either a Checklist for Disciplinary Action or the substantially similar ERS Disciplinary Action Advice Form to provide basic summary information concerning proposed or final decisions regarding disciplinary actions, as required by Department of Air Force Regulation (AFR) 40-750, which governs disciplinary and adverse actions. In particular, these forms, which were prepared by the proposing and deciding officials, contained the range of penalties allowed by AFR 40-750 for the cited offense and a "statement of management's reasoning as to the appropriateness of the penalty imposed . . . ." Id. at 8.(2) These forms were provided to an employee's Union representative when the representative requested the material relied on to support a disciplinary action, which was compiled as required by AFR 40-750, paragraph 27.(3)
The Disciplinary Litigation Advice Form, which replaced the Checklist for Disciplinary Action and the ERS Disciplinary Action Advice Form, requires the proposing and deciding officials to address virtually the same questions as were contained in the earlier forms regarding the factors considered in choosing the appropriate penalty. As relevant to this case, the major difference between the forms is that the Disciplinary Litigation Advice Form contains an introductory paragraph declaring that it is an attorney work product "prepared . . . in direct or indirect anticipation of litigation" and that it is "not subject to release or discovery" under the Freedom of Information Act. Id. at 10. It also differs in calling for the officials to "offer any other opinions you may have on the subject." Id. at 11. In contrast to the earlier forms, the Disciplinary Litigation Advice Form is not maintained in the employee's disciplinary case file or official personnel folder, and it is not used as a "statement of management reasoning as to the appropriateness of the penalty imposed . . . ." Rather, a short "blurb" is used as such a statement. Id. However, if the employee or the Union files a grievance or appeal of the disciplinary action, the form is forwarded to the Staff Judge Advocate with the entire disciplinary action file. According to the testimony of one of Respondent's employee relations specialists, the form is to "be used during litigation," but is not releasable to the Union. Tr. at 109.
III. Judge's Decision
As relevant to the issue before us, the Judge found that the Disciplinary Litigation Advice Form "would have assisted the Union in evaluating the strengths and weakness of [the employee's] position relative to the proposed or final reprimand; in preparing a response to the proposed reprimand; and in processing the later grievance." Judge's decision at 17. Accordingly, the Judge concluded that the requested form was necessary within the meaning of section 7114(b)(4) of the Statute. The Judge also concluded that the Union had established a particularized need for the form that would satisfy the test for necessity set forth in National Labor Relations Board v. FLRA, 952 F.2d 523 (D.C. Cir. 1992) (NLRB v. FLRA).(4) Having found that the requested information was otherwise disclosable, the Judge concluded that the Respondent should furnish the document in sanitized form and that the Respondent had violated the Statute by failing to do so.
IV. Positions of the Parties
The Respondent asserts that, at the time of its request for the information, the Union did not articulate a "particularized need" for the information, as required by the court in NLRB v. FLRA. In addition, the Respondent contends there was no evidence that the Union wished to grieve the information found on the form. It states, in this regard, that the Respondent has no duty under its collective bargaining agreement or any law, rule, or regulation to collect or maintain the information found on the form.
The General Counsel first argues that the Respondent has no basis in fact for excepting to the Union's alleged failure to articulate its need for the requested form at the time it made its requests. The General Counsel also contends that the Judge properly found that the Disciplinary Litigation Advice Form was necessary within the meaning of section 7114(b)(4)(B) under either the test used by the Authority at the time of the Judge's decision or the test enunciated in NLRB v. FLRA.
V. Analysis and Conclusions
After the issuance of the Judge's decision in this case, the Authority issued its decision 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). In that case, the majority of the Authority adopted the standard set forth in NLRB v. FLRA for determining when a union has demonstrated a sufficient need for information involving managerial guidance, advice, counsel, or training to require disclosure of that information under section 7114(b)(4)(B) of the Statute. The court, and the majority of the Authority, require a union to establish a particularized need for such information.
In National Park Service, we noted that the court in NLRB v. FLRA set forth two examples of instances where a union could meet the standard. In particular, the court stated that a union might establish a particularized need for information involving managerial guidance, advice, counsel, or training "where the union has a grievable complaint covering the information." 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. In such a case the agency's "recommendations should normally be disclosed to the union, assuming the union could grieve the agency's failure to follow the procedure." Id. at 533. The court also stated that particularized need for information could be established "when the disputed document creates a grievable action." Id. In this connection, the court stated that disclosure might be warranted if "the parties' agreement or existing practices make it clear" that requested predecisional materials are used "to determine subsequent disciplinary action . . . ." Id. Conversely, the court stated that "where the union has no grievable complaint covering information on 'guidance,' 'advice,' counsel' or 'training,' § 7114(b)(4)(B) normally will not require disclosure." Id. The court, in this connection, further stated that "if the union simply wants background information underlying some later decision, and the grievance only concerns objective constraints on agency action, then the predecisional text is probably 'unnecessary'--indeed, it also may be irrelevant." Id. at 533-34 (emphasis in original).
In light of the nature of the requested information, a document that was prepared to provide managerial guidance with regard to an appropriate penalty, we conclude that this case should be analyzed under the framework established in NLRB v. FLRA. However, this case was decided before the Authority adopted the court's approach in National Park Service, and the parties have not had an opportunity to address whether the Disciplinary Litigation Advice Form contains the type of predecisional deliberations that would make it disclosable under the Authority's current test.(5)
In these circumstances, we find that the complaint in this case must be remanded to the Judge for further proceedings. On remand, absent settlement, the Judge should provide an opportunity for the parties to address whether the Union has a particularized need for the requested information. 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.
The complaint is remanded to the Judge for further proceedings consistent with this decision.
Concurring opinion of Member Talkin
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. Under that definition I would find that the record is sufficient to determine that the Respondent was obligated to furnish the information requested in this case. Given the circumstances of this case, however, I agree that a remand would be helpful in adducing evidence to assist the Authority in determining whether the requested information should be disclosed under NLRB v. FLRA.
(If blank, the decision does not have footnotes.)
1. Member Talkin's separate concurring opinion is found at the end of this decision.
2. AFR 40-750, section F, paragraph 34 sets out the governing criteria for penalty selection and states at subsection c:
If an action is grieved or appealed, management must be prepared to support the appropriateness of the penalty . . . . A statement of management's reasoning as to the appropriateness of the penalty imposed must be included in the record described in paragraph 22.
Judge's decision at 5.
Paragraph 22 states that the record of actions taken under AFR 40-750 must include:
a copy of the notice of proposed action, if applicable, any answer the employee may have made (including summaries of oral answers), the notice of decision and the reasons therefore [sic], any order [a]ffecting the action, a statement of management's reasoning as to the appropriateness of the penalty imposed in disciplinary actions, and any supporting material. Supporting material is that on which management based its notice of proposed action, if applicable, and relied on to support the reasons in the notice of decision . . . .
Id. at 6.
3. Paragraph 27 is entitled "Material Relied on To Support the Action" and states in pertinent part:
Management assembles the material relied on to support the reason(s) for the proposed action and makes the file available to the employee. This material may include, but is not limited to, statements of witnesses, documents, investigative reports or extracts from the reports, and relevant material concerning any previous record or action relied upon as part of the basis for the current action. . . . Since all supporting material must be open to review by the employee, the employee's representative, or the employee's designated physician under 5 C.F.R. 297.204(c), material which cannot be shown to these individuals because its disclosure would violate a pledge of confidence, or because it is in some way restricted or classified, cannot be used to support reasons for the action. If management wishes to use such material, it must obtain it in a form which can be made available for the employee's review. . . .
Judge's decision at 6.
4. At the time the Judge's decision issued in this case, the Authority had not stated its view of the court's decision in NLRB v. FLRA.
5. Although the Judge found that the Union had a particularized need for the requested form under NLRB v. FLRA, he did not discuss or address whether this case encompassed either of the examples of particularized need set forth in that opinion and discussed in National Park Service.