[ v60 p791 ]
60 FLRA No. 152
DEPARTMENT OF THE AIR FORCE
AIR FORCE MATERIEL COMMAND
KIRTLAND AIR FORCE BASE
ALBUQUERQUE, NEW MEXICO
OF GOVERNMENT EMPLOYEES
AFL-CIO, LOCAL 2263
DECISION AND ORDER
March 31, 2005
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This unfair labor practice (ULP) case is before the Authority on exceptions to the attached decision of the Administrative Law Judge (Judge) filed by the Respondent. The General Counsel (GC) filed an opposition.
The consolidated complaint alleges that the Respondent violated § 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by denying the Union's requests to provide specified information. The Judge found that the Respondent violated the Statute as alleged with regard to some, but not all, of the requested information.
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 ULPs alleged in the complaint. Accordingly, we dismiss the complaint. [ v60 p792 ]
As relevant here, the Union requested that the Respondent provide it with the following information in connection with the filling of several positions:
a. Name(s) of every person considered for the above vacant position
b. Ranking factors used to select the above individual
c. Name(s) and ranking of everyone on the certificate including their Service Computation Date
considered for the vacancy
d. PEP of the above position[ [n1] ]
e. Certificates, (including supplement) if appropriate (sanitized, no SSN, B-day) used for the selection of
the above position
f. The highest progression level reached by employees on the certificate
g. SF 52 fill action
h. Copy of position description of above position
i. Copy of EEO goal sheet(s) for the certificate and for any supplemental certificates
j. Selectee's career brief (sanitized with current position and past experience only; delete name, SSN,
appraisal, education, training, etc.)
k. If appropriate, copy of staff summary
l. Interview questions and benchmarks
m. Interview rating sheet (sanitized with selectee(s)['] name(s) only and total scores of everyone
n. A copy of the performance plan relative to the position being filled
o. Nationality of the selectee of the above positions[ [n2] ]
Judge's Decision at 5-6. The Union stated that it was requesting the information in accordance with Article 12.15 and 12.16 of the parties' Master Labor Agreement (MLA), [n3] and explained that it needed the information "in order to perform Post-Promotion Audit(s)," "ensur[e] compliance with Merit System Principles, 5 CFR 335 Section 103," and "monitor contract compliance." E.g., GC Ex. 4 at 2.
The Respondent replied, asserting that Sections 12.15 and 12.16 of the MLA did not entitle the Union to the requested information. The Respondent also asserted that it was unable to determine how the requested information "could be used to effectively show that the nonselection of a particular candidate was a violation of any law, merit principle or the [MLA.]" GC Ex. 13 at 3. For example, the Respondent stated that a selecting official has the right to select any individual on a certificate, and thus, if an employee is on a certificate but not selected, then the qualifications of other candidates "are of no significance for grievance purposes." Id. at 4. The Respondent requested that the Union explain -- "paragraph by paragraph" and for "each of the items" requested -- why the Union needed the item, what the item would be used for, how the proposed use was connected to the Union's representational responsibilities, and how the item is required to adequately represent bargaining unit employees. Id. at 2, 3. The Respondent offered to discuss the matter with the Union.
Before it received the Respondent's reply, the Union requested the same categories of information in connection with the filling of additional positions and renewed one of its earlier requests. In these requests, [ v60 p793 ] the Union explained its need for the information in the same terms as in the previous requests, and in the renewal of the previous request, the Union cited § 7114(b)(4) of the Statute in addition to the MLA. After the Union received the Respondent's reply, the Union responded, noting that it was now requesting the information under § 7114(b)(4) and stating that, for each request, there was a grievant who wished to remain anonymous. With regard to the Respondent's request for additional explanation of the Union's need for the information, the Union stated that it had "provided sufficient information" and that its previous requests were "specific in what we need to address our grievant[s'] concerns and our concerns of contract compliance with merit promotion issues." GC Ex. 17 at 2.
In reply, the Respondent stated that the Union's requests were not justified under either the MLA or the Statute, and noted that the Union had failed to answer the Respondent's previous questions regarding the Union's need for the information. The Respondent suggested that the parties meet to discuss the matter.
In response, the Union stated that it needed all of the requested items in order to "address bargaining unit employee[s'] concerns" and "represent the employee in obtaining the information[.]" GC Ex. 21 at 1. The Union also stated that it "will use the information requested to support the employee in any further legal actions needed or required to fully satisfy the employee's rights and to make the employee whole." Id. at 2. The Union asserted that "[i]t is the Union's responsibility to represent employees, and whatever action is needed to address an employee's concerns will be taken within the scope of Union activities and rights covered by the prescribed statutes." Id.
The Respondent again replied, asserting that the Union had failed to articulate a particularized need for the items, and asking specific questions regarding the proposed grievances. See GC Ex. 22. The Respondent again suggested that the parties meet.
Subsequently, the Union requested the same categories of information with regard to the filling of additional positions, and explained its need in the same terms as its previous requests. See GC Exs. 23, 24, 26 & 28. The Respondent continued to state that the Union had not established particularized need and continued to request that the parties meet. See GC Exs. 25, 27, & 29.
The Union filed several ULP charges, and the GC issued several complaints alleging that the Respondent violated § 7114(a)(1), (5) and (8) of the Statute by failing to provide the requested information. The complaints were consolidated for hearing before the Judge.
III. Judge's Decision
The Judge found that the Respondent "tried to apply" Authority precedent regarding the disclosure of information and that the Respondent's letters to the Union were "detailed and conciliatory." Judge's Decision at 20, 21. By contrast, the Judge found that the Union "seem[ed] . . . motivated by the twin goals of making Kirtland management do as much paperwork as possible while doing as little work itself as possible." Id. at 20. In this connection, the Judge determined that the Union's requests were general and brief and that the Union provided a single explanation of need that covered all of the requested items. In fact, the Judge found that the Union representative "didn't know what many of the documents were[.]" Id. The Judge also found that, when the Union provided answers to the Respondent's questions regarding the Union's need for the information, "[n]one of these answers related specifically to the merit promotion process or how the information would help the employees." Id. at 21. The Judge concluded that -- contrary to the "spirit" of Authority precedent involving requests for information -- "the Union was relying entirely on one-size-fits-all boilerplate language for its requests, in the apparent hope that these phrases (like magical incantations) would justify all their requests and open all doors." Id.
The Judge determined that the Respondent's requests for elaboration "were particularly relevant in the context of promotion grievances, because of the many stages of a merit staffing action." Id. at 22. In this regard, the Judge stated that information that might help an applicant who made the best-qualified list for a position might differ from information needed by an applicant who was not found minimally qualified. The Judge found that the Respondent "tried to explain the importance of these distinctions" in its replies to the Union, but "[t]he Union refused to narrow the scope of its requests at all, without properly explaining why." Id. Moreover, the Judge determined that the Union did not accept any of the Respondent's numerous requests to meet and discuss the issues.
Despite the foregoing, the Judge found that the Respondent was obligated to consider individually each item in the requests and to furnish the items that the Union needed. The Judge determined that the Union needed the requested: PEPs; PDs; career briefs; interview rating sheets; interview questions; and performance plans. In this regard, the Judge found that, although the Union did not provide specific explanations of need for these individual items, the need for each item was "apparent[,]" "self-evident[,]" and/or "evident[.]" Id. at 26 (need for PEPs "apparent"); id. at 30 (need for PDs "self-evident"); id at 31 (need for career briefs, interview rating sheet, and interview questions [ v60 p794 ] "evident") (regarding career briefs); see also at 33 (Union needed performance plans "[f]or the same reasons" that it needed PEPs and PDs). The Judge found that the Union failed to establish particularized need for the remaining items. In addition, the Judge rejected the Respondent's argument that the MLA justified the Respondent's denial of the requests.
The Judge concluded that the Respondent violated § 7116(a)(1), (5) and (8) of the Statute by refusing to furnish the Union with items d, h, j, m, n, and the interview questions in l (hereinafter "the disputed items"). The Judge also concluded that the Respondent did not violate the Statute with regard to the remaining items.
IV. Positions of the Parties
A. Respondent Exceptions
The Respondent argues that the Judge erred by finding that it violated the Statute by failing to provide the disputed items. According to the Respondent, "there was no obvious need for the entire gamut of data requested[,]" and "[i]t was the full scope of the requested data for which the [R]espondent sought explanation." Exceptions at 11-12. In this connection, the Respondent contends that "[t]he expanse of the requested data made no sense in relation to a single person[,]" and "[s]ingle items requested made no sense in relation to other items requested." Id. at 12. The Respondent claims that "[i]t was this type of clarification that the Respondent was seeking so as to make a reasoned determination of its obligation to disclose information[,]" but "[t]he clarification was never received." Id. Finally, the Respondent argues that, contrary to the Judge's finding, the MLA justified its refusal to provide the information.
B. GC Opposition
The GC asserts that the Judge did not err by finding that the Respondent violated the Statute. According to the GC, the Judge correctly held that the Respondent should have considered individually the necessity of each item, rather than making "blanket denials" of the requests. Opp'n at 11. Further, the GC contends that the Judge correctly found that the MLA did not permit the Respondent's refusal to provide the information.
V. 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 provided for management officials or supervisors, relating to collective bargaining[.]" 5 U.S.C. § 7114(b)(4).
The only factor in dispute here is whether the requested information is "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining" under § 7114(b)(4) of the Statute. To establish such necessity, 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." IRS, Wash., D.C., 50 FLRA 661, 669 (1995) (IRS). 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. Id. at 670.
When a union has requested information, the agency is responsible for establishing any countervailing anti-disclosure interests and, like the union, must do so in more than a conclusory way. See IRS, 50 FLRA at 670. See also Health Care Fin. Admin., 56 FLRA 156, 159 (2000). Such interests must be raised at or near the time of the union's request. See United States DOJ, Fed. Bureau of Prisons, Fed. Det. Ctr., Houston, Tex., 60 FLRA 91, 93 (2004) (citation omitted).
The analytic framework set forth in IRS, which requires parties to articulate and exchange their respective interests in disclosing information, serves several important purposes. See IRS, 50 FLRA at 670. It "facilitates and encourages the amicable settlements of disputes" and, thereby, effectuates the purposes and policies of the Statute. Id. (quoting 5 U.S.C. § 7101(a)(1)(C)). It also facilitates the exchange of information, with the result that both parties' abilities to effectively and timely discharge their collective bargaining responsibilities under the Statute are enhanced. 50 FLRA at 670. In addition, it permits the parties to consider and, as appropriate, accommodate their respective interests and attempt to reach agreement on the extent to which requested information is disclosed. Id. at 670-71.
Consistent with these policies, when an agency reasonably requests clarification of a union's information request, the union's failure to respond to the request is taken into account in determining whether the union has established a particularized need for the information. See, e.g., Dep't of the Air Force, Wash., D.C., 52 FLRA 1000, 1007 (1997) (Member Wasserman concurring); [ v60 p795 ] United States EEOC, 51 FLRA 248, 258 (1995). Further, the Authority has declined to find that a union's need for information should have been "reasonably obvious" to a respondent where the union failed to reply to the respondent's request for clarification and there was no basis in the record for finding that the request for clarification was disingenuous or unreasonable. United States Dep't of the Treasury, IRS, Wash., D.C., 51 FLRA 1391, 1396 (1996) (Treasury). Cf. Health Care Fin. Admin., 56 FLRA 503, 507 n.3 (2000) (Authority found particularized need for promotion-related information but noted that if respondent had "sought clarification, the [u]nion would have been required to provide it or run the risk of failing to meet its burden of establishing a particularized need for the information requested.").
Here, in all of its requests, the Union sought several different categories of information. The Union provided a single explanation of need for all of these categories, stating that it needed the information "in order to perform Post-Promotion Audit(s)," "ensur[e] compliance with Merit System Principles, 5 CFR 335 Section 103," and "monitor contract compliance." E.g., GC Ex. 4 at 2. The Respondent repeatedly requested that the Union explain why it needed each individual item, provided an explanation as to why it questioned the necessity of the information request, and requested to meet with the Union. Despite these requests, the Union never provided an explanation of its need for the individual items requested, did not otherwise explain the broad scope of its requests, and did not meet with the Respondent to discuss this matter. The Union's only elaboration of need, in response to the Respondent's requests for clarification, was that it needed the items to "address bargaining unit employee[s'] concerns" and to represent employees "in any further legal actions needed or required to fully satisfy the employee[s'] rights and to make the employee[s] whole." GC Ex. 21 at 1-2.
We conclude that the Union's statements -- that it needed all the information to "perform Post-Promotion Audit(s)," "ensur[e] compliance with Merit System Principles," "monitor contract compliance[,]" GC Ex. 4 at 2, "address bargaining unit . . . concerns" and represent employees in "further legal actions[,]" GC Ex. 21 at 1-2 -- failed to articulate, with specificity, why the Union needed all the requested information, including the uses to which the union would put the information and the connection between those uses and the Union's representational responsibilities under the Statute. See IRS, 50 FLRA at 669. In this regard, the Union's requests were merely conclusory and did not permit the Respondent to make a reasoned judgment as to whether the disclosure of all the requested information was required under the Statute. See id. at 670.
Additionally, the Judge found that: the Respondent generally tried to apply the principles of IRS; the Respondent's letters to the Union were detailed and conciliatory; the Respondent's requests for elaboration from the Union were particularly relevant in the context of promotion grievances; the Respondent provided some elaboration as to why it did not understand how all of the items would be necessary in order to represent a grievance; and the Respondent repeatedly requested to meet with the Union to discuss the requests further. These findings, which are not excepted to, support a conclusion that the Respondent's requests for clarification were not unreasonable or disingenuous and that, in response, the Union was required to provide additional explanation for its requests. See Treasury, 51 FLRA FLRA at 1396 (in finding no particularized need, Authority relied on absence of record evidence indicating that respondent's request for clarification was unreasonable or disingenuous).
Despite the foregoing, the Judge found that the Respondent was required to assess each individual item requested and provide the Union with any items for which the Union's need was apparent. However, for two reasons, we disagree. First, where a union fails to establish its need for all the information requested, a respondent is not required to provide the requested information, even if the union has established a need for "some" of the information. United States DOL, Wash., D.C., 51 FLRA 462, 476 (1995) (emphasis in original). Second, as noted previously, the Authority has declined to consider whether a union's need for information is apparent where the union has failed to reply to a respondent's genuine and reasonable request for clarification. See Treasury, 51 FLRA at 1396 (rejecting claim that need should have been "reasonably obvious" where respondent genuinely and reasonably requested clarification). As we have concluded that the Respondent's requests for clarification were not unreasonable or disingenuous in the circumstances of this case, the Respondent was not required to consider whether the Union's need for specific items is apparent.
For the foregoing reasons, we conclude that the Union did not meet its burden under IRS of articulating and establishing a particularized need for the requested items and, thus, the Respondent did not violate the Statute as alleged. [n4]
The complaint is dismissed.
File 1: Authority's Decision in 60
File 2: ALJ's Decision
Footnote # 1 for 60 FLRA No. 152 - Authority's Decision
Footnote # 2 for 60 FLRA No. 152 - Authority's Decision
Footnote # 3 for 60 FLRA No. 152 - Authority's Decision
Employees or their designated representative may request the following information concerning specific promotion actions in which they are individually affected. . . .:
a. Whether the employee was considered for promotion to a specific bargaining unit position, and if so, whether the employee was found eligible for the position on the basis of minimum qualification standards and other evaluation factors.
b. Whether the employee was among the best qualified candidates referred on the promotion certificate; if not, the highest progression level reached by the employee in the screening process, if applicable.
c. Who was selected for the vacant position in question.
Section 12.16, "Post Audit of Promotion Actions," provides:
"To the extent permitted by applicable law, rule or regulation, the Union may post-audit a promotion action in conjunction with the processing of a grievance under the Negotiated Grievance Procedure." GC Ex. 2 at 42; GC Ex. 3 at 44.
Footnote # 4 for 60 FLRA No. 152 - Authority's Decision