File 2: Opinion of Member Wasserman
[ v55 p1188 ]
Dissenting Opinion of Member Wasserman
I agree with the disposition of all the provisions except for Provision 9. As explained below, I would find that Provision 9 is not contrary to law and would order the Agency head to rescind its disapproval.
From the record, it appears that the Agency's sole claim in support of its disapproval of the provision was an asserted conflict with the right to determine internal security practices under section 7106(a)(1) of the Statute. In my view, the Agency has not shown a link or reasonable connection between the right to safeguard its personnel, physical property or operations and withholding audiotapes, videotapes or stenographic records of employee interviews.
The Agency asserts, and the majority finds, that disclosure of the "tempo" of the questioning, the exact wording of a particular question, and the type of questions to expect could compromise the integrity of an investigation. I find such concerns to be highly speculative in this case and insufficient to establish the requisite linkage under the Authority's test. The Union states that the Agency has abided by comparable contract provisions for a number of years. [n1] Yet, the Agency offers no proof that investigations have been compromised in any way since these provisions were in effect. The concerns expressed in this case, which are limited to potential risks, should not be viewed in a vacuum, but are appropriately assessed against the backdrop of actual experience. That experience does not support the Agency's objections.
Also significant, in my view, is the fact that the tempo, wording and type of questions can just as easily be disclosed by the interviewed employee, or anyone else who is present at the interview, than by the furnishing of the tapes or stenographic record. Thus, maintaining the secrecy of the tapes and records does not serve the Agency's stated purpose.
Apart from finding that the Agency has not made the requisite showing under section 7106(a)(1), I also question whether that statutory section can provide a valid basis for finding that the provision is contrary to law. Provision 9 deals with the disclosure of information -- namely, tapes and/or transcripts of employee interviews. The D.C. Circuit has stated that section 7106 does not prohibit disclosure of information. I point to the following language in NLRBU v. FLRA, 842 F.2d 483 (D.C. Cir. 1988):
Section 7106 by any reading does not prohibit the disclosure of anything. All it does is reserve to management the authority to act in certain areas. Nothing in § 7106 prohibits management from disclosing any or all of the data relied upon or accumulated by it in acting within those areas. Indeed, § 7106(b) makes it plain that "[n]othing in this section shall preclude any agency and any labor organization from negotiating-(1) at the election of the agency ..." on many of the matters contained within the reservation. Nothing in § 7106 contains any language concerning the disclosure of anything.
Id. at 486.
Although the underlying Authority decisions in NLRBU v. FLRA involved the disclosure of information under section 7114(b)(4) of the Statute, and that is what the court addressed, it seems to me that the same theory applies in addressing the provision here. If that is the case, section 7106 cannot constitute a bar to the disclosure of information. As section 7106(a)(1) is the sole objection raised by the Agency, its disapproval cannot stand. [n2]
In sum, I do not believe that the Agency has shown that the provision affects its right to determine internal security practices. Accordingly, I would order the Agency head to rescind its disapproval of the provision.
File 1: Authority's Decision in 55 FLRA No. 191
File 2: Opinion of Member Wasserman
Footnote # 1 for 55 FLRA No. 191 - Opinion of Member Wasserman
Q. to your knowledge, what is the practice of the agency concerning when it develops a transcript regarding an employee interview?
A. Well, it's my experience that . . . ordinarily the interview is tape-recorded and then a transcript is made of the tape recording.
And then the union representative can request copies of the tape and the transcript.
And then you have the opportunity to review the tape and the transcript for accuracy.
In many cases, it's important to have both because sometimes the transcript does not accurately reflect the tape.
And, occasionally, something is said on the tape which is not audible enough, or not caught by the transcriber that you can actually hear.
So you can actually benefit from getting the tape and the transcript.
Transcript of Hearing at 73-74.
Footnote # 2 for 55 FLRA No. 191 - Opinion of Member Wasserman
My colleagues read too much into my question regarding the use of section 7106(a) as a bar to the disclosure of information. First of all, it was the court, not I, who stated that "[s]ection 7106 by any reading does not prohibit the disclosure of anything." Secondly, my conclusion in this case is not grounded on the decision in NLRBU v. FLRA. Instead, as I have explained, I believe that the Agency has not established that the provision affects the right to determine its internal security practices.