United States, Department of the Air Force, Randolph Air Force Base, San Antonio, Texas (Respondent) and American Federation of Government Employees, Local 1840, AFL-CIO (Charging Party)
[ v60 p261 ]
60 FLRA No. 59
DEPARTMENT OF THE AIR FORCE
RANDOLPH AIR FORCE BASE
SAN ANTONIO, TEXAS
OF GOVERNMENT EMPLOYEES
LOCAL 1840, AFL-CIO
DECISION AND ORDER
September 17, 2004
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
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 (Judge) filed by the Respondent. The General Counsel filed an opposition to the exceptions.
The complaint alleges that the Respondent violated section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to furnish information requested by the Charging Party, in violation of § 7114(b)(4) of the Statute.
Upon consideration of the Judge's decision and the entire record, we conclude for the reasons discussed below that the Respondent did not commit the unfair labor practice alleged in the complaint. Accordingly, we dismiss the complaint.
II. Background and Judge's Decision
In April 2001, pursuant to the settlement of a previously-filed unfair labor practice charge, the Charging Party requested and received performance evaluation and award forms for bargaining unit employees working in the lodging center of the Services Division for appraisal year 2000. In April 2002, the Charging Party submitted two documentation requests for appraisal years 2000 and 2001 for the same kind of performance evaluation and award information that it received in 2001, but for a greatly expanded list of employees, i.e., all bargaining unit and non-bargaining unit employees in all 23 facilities or work centers in the entire Services Division. [n2]
In both of the April 2002 requests, the Charging Party stated that it needed the data in order to "properly evaluate fair and equitable treatment for Union members who have received awards in correlation to their evaluations and to determine if Union members are awarded the same as non-Union members." See Judge's Decision at 4. The information sought was to be collated or coded in a way that would permit the Charging Party to identify the evaluation and award recommendation that each employee received, whether the employee was in the bargaining unit, and if in the bargaining unit, whether the employee was a dues-paying member of the Union.
In addition, the requests noted that the Charging Party had previously received the same type of information and that the Charging Party "feels as though Union members may have been unfairly treated." Id. The Charging Party also stated in its requests that it "must have this information in order to properly perform our representational responsibilities and duties." Id.
In its response to the requests, the Respondent stated that the Charging Party's requests "need clarification in order for management to assess the need." Id. at 5. The Charging Party responded that "the `clarification' of the need is clear" and as stated in the original information requests, which it resubmitted to the Respondent, highlighting the last three paragraphs of the original requests. Id. The only other communication between the parties regarding the Charging Party's requests occurred at a meeting, where the parties essentially reiterated their positions and did not resolve their differences. The Respondent did not provide the requested information and the General Counsel issued a complaint alleging that the Respondent violated § 7116(a)(1), (5) and (8) of the Statute by failing to provide the Charging Party with the requested information.
The Judge first determined that, under § 7114(b) of the Statute, the information requested by the Charging Party was normally maintained by the Respondent, was reasonably available, and did not constitute guidance, [ v60 p262 ] advice or counsel provided for management officials relating to collective bargaining. See Judge's Decision at 10-12.
Next, applying the standard set forth in IRS, Washington, D.C. and IRS Kansas City Serv. Ctr., Kansas City, Mo., 50 FLRA 661 (1995) (IRS, Kansas City) (Member Talkin concurring), the Judge determined that the Charging Party had not demonstrated a "particularized need" for the information relating to non-bargaining unit employees of the Division because it "did not clearly articulate" any reason for why it needed such information. Judge's Decision at 15. The Judge expressly rejected as untimely attempts by the Union and the General Counsel at the hearing to explain the basis for requesting information on non-bargaining unit employees. In referring to the justification provided in the actual requests, the Judge found that the Union "admitted that its explanation did not include bargaining unit and non-bargaining unit employees." Id. at 13. The Judge also found that the General Counsel's attempt to interpret the terms "Union member" and "non-Union member" expansively to include non-bargaining unit employees "is clearly a misreading of the Union's requests . . . ." Id. at 14. The Judge also rejected the Union's explanation, offered at the hearing, that the information as to non-bargaining unit employees was needed to determine whether the Respondent was complying with an agency instruction. The Judge found that this reason was not set forth in the information requests and was not timely presented to the Respondent.
The Judge found, however, that the Charging Party established a particularized need for the requested performance evaluations and award forms for bargaining unit employees in all 23 facilities and work centers of the Division. In making this finding, the Judge determined that in its requests the Charging Party "clearly expressed its concern that Union members were being treated differently from non-Union members and indicated its need for the information in order to represent bargaining unit employees in a possible grievance or unfair labor practice." Id. at 15. Rejecting the Respondent's argument that the Charging Party did not request information related to specific employees or specific work centers, the Judge stated that the "particularized need standard does not require that information, as long as the explanation gives enough information." Id. (citing United States Dep't of Transp., FAA, New England Region, Bradley Air Traffic Control Tower, Windsor Locks, Conn., 51 FLRA 1054 (1996) (FAA)).
The Judge also addressed the Respondent's argument that it was confused by the information requests since the Union had referenced the earlier information, which concerned a more limited time frame and group of employees. The Judge found that "[w]hile not the most articulate, the information requests are clear enough to show that as a result of the receipt of the information the year before, issues had been raised with regard to evaluations and awards, which the Union was seeking to address." Judge's Decision at 15-16. In addition, the Judge found that because the Charging Party's information requests set forth adequate particularized need for the information, the Charging Party's action of merely reiterating its original requests, with certain portions highlighted in response to the Respondent's request for clarification, did not excuse the Respondent from furnishing the requested information.
Finally, the Judge determined that disclosure of the requested information regarding bargaining unit employees would not violate the Privacy Act because it would be sanitized and coded. Based on the foregoing, the Judge concluded that the Respondent violated § 7116(a)(1), (5) and (8) of the Statute by failing to provide the Charging Party with the performance evaluation and award forms regarding bargaining unit employees, but that the Respondent did not violate the Statute when it refused to provide the requested forms regarding non-bargaining unit employees to the Charging Party. Accordingly, the Judge recommended that the Authority require the Respondent to furnish the Charging Party with the requested information regarding bargaining unit employees in sanitized and coded form.
III. Positions of the Parties [n3]
A. Respondent's Exceptions
The Respondent contends that the Judge erred in concluding that the Union established particularized need for the information related to bargaining unit employees. In particular, the Respondent asserts that the Judge erred in relying on FAA, and not United States Dep't of the Treasury, IRS, Washington, D.C. & United States Dep't of the Treasury, IRS, Oklahoma City Dist., Oklahoma City, Okla., 51 FLRA 1391 (1996) (IRS), where the Authority determined that particularized need was not established. According to the Respondent, IRS is similar to the instant case because the union in IRS requested performance appraisals of all bargaining unit [ v60 p263 ] and non-bargaining unit members to support a disparate treatment allegation and failed to provide more information in response to the respondent's request for clarification.
The Respondent further asserts that the facts in FAA differ from those in IRS and the instant case because: (1) the respondent in FAA neither responded to the union's request nor sought to have the request clarified; and (2) the relevance of the request in FAA was "apparent on its face." Exceptions at 7. The Respondent contends that "it was not apparent how the appraisal and award information on employees in diverse physical locations and occupations was relevant to the potential grievance of individual employees." Id. Therefore, according to the Respondent, if the Judge had applied IRS, then she would have determined that the Charging Party failed to establish a particularized need for the requested information.
B. General Counsel's Opposition
The General Counsel contends that the Judge properly determined that the Union established particularized need for the information regarding bargaining unit employees. In particular, the General Counsel asserts that because the basis for the alleged disparate treatment in IRS (gender) is different than in the instant case (unit status), the type and extent of information needed is different. In this regard, the General Counsel asserts that IRS involved only one grievant and the union could prove disparate treatment only by comparing the grievant's appraisal to those of other employees who occupied the same position. In contrast, according to the General Counsel, the groups of employees in the instant case allegedly suffering disparate treatment occupy different positions in different locations and, therefore, a broader category of information is needed to support the claim. The General Counsel also contends that the respondent's request for clarification in IRS, unlike the instant case, was very specific. Also unlike IRS, the General Counsel points out that the Charging Party in the instant case did respond to the Respondent's clarification request by resubmitting the original requests with certain portions highlighted.
The General Counsel also claims that under Authority precedent, a union is not required to provide names of complaining employees. The General Counsel further asserts that the Respondent fails to explain the significance of the fact that it, like the respondent in IRS and unlike the respondent in FAA, responded to the Charging Party's information requests. In this regard, the General Counsel contends that the union in FAA prevailed because the respondent failed to assert a countervailing interest and not "simply because the [respondent] did not respond." Opposition at 13. According to the General Counsel, the important fact is that the Authority in both FAA and IRS, and the Judge in the instant case, relied on the particularized need standard set forth in IRS, Kansas City.
IV. Analysis and Conclusions
Under § 7114(b)(4) of the Statute, an agency must furnish information to a union, upon request and "to the extent not prohibited by law," if that information is: (1) "normally maintained by the agency in the regular course of business"; (2) "reasonably available"; (3) "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining;" and (4) not "guidance, advice, counsel or training." The only issue raised in the Respondent's exception relates to the third requirement, that the information be "necessary." Therefore, we will not address the other requirements.
In IRS, Kansas City, 50 FLRA at 669-70, the Authority set forth the analysis for determining whether information is "necessary" under § 7114(b)(4) of the Statute. To demonstrate that information is "necessary," a union "must establish a particularized need for the information by articulating, with specificity, why it needs the requested information, including the uses to which the union will put the information and the connection between those uses and the union's representational responsibilities under the Statute." Id. (footnote omitted). See also AFGE, Local 2343 v. FLRA, 144 F.3d 85, 89 (D.C. Cir. 1998) (AFGE, Local 2343); United States Dep't of Justice, Bureau of Prisons, Allenwood Fed. Prison Camp, Montgomery, Pa. v. FLRA, 988 F.2d 1267, 1270-71 (D.C. Cir. 1993).
The union's responsibility for articulating its interests in the requested information requires more than a conclusory assertion and must permit an agency to make a reasoned judgment as to whether the disclosure of the information is required under the Statute. IRS, Kansas City, 50 FLRA at 670. See also AFGE, Local 2343, 144 F.3d at 89 ("The articulation requirement gives content to the `particularized' part of the test by requiring not just that there be a need - a standard that unions probably could meet whenever seeking information in connection with a grievance - but also that unions explain with some specificity why they need the information."). A union must articulate its interests in disclosure of the information at or near the time of the request -- not for the first time at an unfair labor practice hearing. See, e.g., IRS, 51 FLRA at 1396. [ v60 p264 ]
The agency is responsible for establishing any countervailing anti-disclosure interests and, like the union, must do so in more than a conclusory way. Id. See also Health Care Financing Admin., 56 FLRA 156, 159 (2000) (HCFA). Such interests must be raised at or near the time of the union's request. United States Dep't of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Forrest City, Ark., 57 FLRA 808, 812 (2002) (FCI).
In this case, after receiving data for bargaining unit employees in the lodging center pursuant to a settlement agreement, the Union requested performance evaluation and award forms for appraisal years 2000 and 2001 for all bargaining unit and non-bargaining unit employees in the entire Division. When the Respondent sought clarification, as the Authority has encouraged agencies to do in such circumstances, the Union simply reiterated its requests by highlighting portions of its original requests. No additional explanation was provided until, for the first time at the hearing, the Charging Party's Vice President testified that several employees had complained to him. Hearing Transcript (HT) at 51-52. [n4] However, as that explanation was not provided at or near the time of the Union's request, it may not be considered in determining whether the Union established a particularized need. See IRS, 51 FLRA at 1396.
On this record, we find that the Judge erred in concluding that the Charging Party established a particularized need at or near the time of its requests for the performance evaluation and award forms in question. In this regard, we note that the Authority has consistently recognized that a union establishes a particularized need under § 7114(b)(4) of the Statute for requested information where the request provides "sufficient specification of both the uses to which the information would be put and [the] connection between the uses and the union's representational responsibilities under the Statute." United States Dep't of Justice, INS, Northern Region, Twin Cities, Minn., 52 FLRA 1323, 1331 (1997) (union established need for disciplinary and adverse action records), aff'd, United States Dep't of Justice, INS, No. Region, Twin Cities, Minn. v. FLRA, 144 F.3d 90 (D.C. Cir. 1998). See also IRS, Austin Dist. Off., Austin, Texas, 51 FLRA 1166, 1178 (1996) (agency violated the Statute by refusing to provide requested information in connection with representation of a grievant); FAA, 51 FLRA at 1067-68 (respondent did not violate the Statute in refusing to provide unsanitized copies of performance appraisals because of the Privacy Act but did violate the Statute by refusing to provide the union with certain performance award data); IRS, Kansas City, 50 FLRA at 672 (union established particularized need for copy of performance appraisal).
However, "where the information sought is broader than the circumstances covered by the request," and the union has not been able to establish a connection between the broader scope of the information requested and the particular matter referenced in the request, the Authority has found that the union has not established a particularized need for that information. FCI, 57 FLRA at 813 (union failed to establish a particularized need for list of disciplinary and adverse actions, despite respondent's repeated requests for clarification). See also United States Customs Serv., S. Cent. Region, New Orleans Dist., New Orleans, La., 53 FLRA 789, 799 (1997) (Customs, New Orleans) (union request for 4 years' data on demotions was over broad and not necessary); IRS, 51 FLRA at 1395-96 (union failed to establish particularized need for performance appraisals for bargaining unit and nonbargaining unit employees); United States Dep't of Labor, Washington, D.C., 51 FLRA 462, (1995) (Dep't of Labor) (union failed to establish particularized need for unsanitized copies of disciplinary suspension records for bargaining unit and nonbargaining unit employees covering a 5-year period).
In the present case, the Charging Party referenced its receipt of information regarding just the lodging center of the Services Division, yet the information request sought, without further explanation, information regarding the entire Services Division. In these circumstances, the Charging Party did not satisfy its burden of establishing a particularized need for the sanitized and coded performance appraisals and award recommendations for all bargaining unit employees in the Service Division. See Dep't of the Air Force, Washington, D.C., 52 FLRA 1000, 1005-10 (1997) (Member Wasserman concurring). The Charging Party's asserted rationales are general and conclusory. See, e.g., Dep't of Justice, United States Immigration & Naturalization Serv., United States Border Patrol, Dallas, Tex., 51 FLRA 545, 547 (1995) (Border Patrol, Dallas) (union request for material to provide adequate and meaningful representation to the bargaining unit members did not establish a particularized need). A union cannot overcome the insufficiency of conclusory assertions by making several such assertions in the same request. See Dep't of Health & Human Servs., Soc. Sec. Admin., New York Region, New [ v60 p265 ] York, N.Y., 52 FLRA 1133, 1148 (1997) (Member Wasserman dissenting in part).
When the Respondent attempted to seek clarification as to why the information was needed, the Charging Party did not provide any clarification other than highlighting portions of the requests. The Judge, while acknowledging that the requests were "not the most articulate," found nonetheless that they were "clear enough to show that as a result of the receipt of the information the year before, issues had been raised with regard to evaluations and awards, which the Union was seeking to address." Judge's Decision at 15-16. However, the Judge's finding is not supported by the record. Nothing in the record ties in any way the Charging Party's receipt of information about bargaining unit employees in one fa