ORAL ARGUMENT SCHEDULED FOR MARCH 6, 1998
No. 97-1355
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_______________________________
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2343
Petitioner
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
_______________________________
ON PETITION FOR REVIEW OF AN ORDER
OF THE FEDERAL LABOR RELATIONS AUTHORITY
BRIEF FOR THE
FEDERAL LABOR RELATIONS AUTHORITY
DAVID M. SMITH
Solicitor
JAMES F. BLANDFORD
Attorney
Federal Labor Relations Authority
607 14th Street, N.W.
Suite 330
Washington, D.C. 20424-0001
(202) 482-6620
ORAL ARGUMENT SCHEDULED FOR MARCH 6, 1998
CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES
A. Parties and amici
Appearing below in the administrative proceeding
before the Federal Labor Relations Authority were the U.S. Department of
Justice, Federal Bureau of Prisons, U.S. Penitentiary, Marion, Illinois and
American Federation of Government Employees, Local 2343. The union is the
petitioner in this court proceeding; the Authority is the respondent.
B. Rulings under review
The ruling under review in this case is the Authority's Decision and
Order in U.S. Department of Justice, Federal Bureau of Prisons, U.S.
Penitentiary, Marion, Illinois and American Federation of Government
Employees, Local 2343, Case No. CH-CA-30849 on March 14, 1997. The
Authority's decision is reported at 52 F.L.R.A. (No. 115) 1195.
C. Related Cases
This case has not previously been before this Court or any other court.
Counsel for the Authority is unaware of any cases pending before this
Court which are related to this case within the meaning of Local Rule
28(a)(1)(C).
TABLE OF CONTENTS
STATEMENT OF JURISDICTION 1
STATEMENT OF THE ISSUE 2
STATEMENT OF THE CASE 2
I. Nature of the Case 2
II. Statement of the Facts 3
III. Proceedings below 6
A. The ALJ's decision 6
B. The Authority's decision 7
1. Analytical framework 8
2. Application of the framework in this case 9
STANDARD OF REVIEW 12
SUMMARY OF ARGUMENT 13
ARGUMENT 16
THE AUTHORITY PROPERLY CONCLUDED THAT THE AGENCY EMPLOYER DID NOT COMMIT
UNFAIR LABOR PRACTICES WHEN IT REFUSED TO FURNISH THE UNION WITH AN
INVESTIGATIVE REPORT, BECAUSE THE UNION HAD NOT DEMONSTRATED A PARTICULARIZED
NEED FOR THE INFORMATION 16
I. The particularized need standard 16
A. Precedent of this Court 16
B. Authority precedent 17
II. Local 2343 failed to establish and articulate
a particularized need for the OIA
investigation concerning Officer Francis'
alleged misconduct 19
A. The acknowledged focus of the union's
information request was a grievance
alleging that releasing inmate Baptiste
into the general prison population violated
the safety and health provisions of the parties'
collective bargaining agreement 19
B. The data requested by the union consisted
of the OIA investigation and supporting documents
concerning allegations of
misconduct on Officer Francis' part 22
C. The union failed to articulate to the
Penitentiary how the investigative
reports concerning Officer Francis were required to
prepare for arbitration of
the safety and health issue 24
III. The union's remaining contentions are without merit 29
A. This Court's decision in Scott AFB is inapposite 29
B. The Authority's decision does not place an undue
burden on the union 31
CONCLUSION 33
ADDENDUM
Relevant portions of the Federal Service Labor-Management
Relations Statute, 5 U.S.C. §§ 7101-7135 (1994 &
Supp. II 1996) A-1
TABLE OF AUTHORITIES
AFGE Local 2441 v. FLRA, 864 F.2d 178
(D.C. Cir. 1988) 13, 29
Bureau of Alcohol, Tobacco and Firearms v. FLRA,
464 U.S. 89 (1983) 13
Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984) 12
Department of the Air Force, Scott Air Force Base v. FLRA,
104 F.3d 1396 (D.C. Cir. 1997) 15, 29, 30, 32
EEOC v. FLRA, 744 F.2d 842 (D.C. Cir. 1984), cert. dismissed,
476 U.S. 19 (1986) 12
Fort Stewart Sch. v. FLRA, 495 U.S. 641 (1990) 12
*National Labor Relations Board v. FLRA, 952 F.2d 523
(D.C. Cir. 1992) passim
National Treasury Employees Union v. FLRA, 721 F.2d 1402
(D.C. Cir. 1983) 12, 13, 29
Overseas Educ. Ass'n v. FLRA, 858 F.2d 769
(D.C. Cir. 1988) 12
Peoples Gas System, Inc. v. NLRB, 629 F.2d 35
(D.C. Cir. 1980) 13
State of New York v. Reilly, 969 F.2d 1147
(D.C. Cir. 1992) 28
U.S. Dep't of Justice v. FLRA, 991 F.2d 285 17, 18
U.S. Dep't of Veterans Affairs v. FLRA,
1 F.3d 19 (D.C. Cir. 1993) 17, 18
*U.S. Dep't of Justice, Bureau of Prisons,
Allenwood Federal Prison Camp, Montgomery,
Pennsylvania, 988 F.2d 1267 (D.C. Cir. 1993) 17, 18, 25, 28
* Cases or authorities chiefly relied upon are marked by asterisks
TABLE OF AUTHORITIES
(Continued)
DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY
Department of the Air Force, Scott Air Force Base,
Illinois, 51 F.L.R.A. 675 (1995) 30, 32
Internal Revenue Service, Austin District Office
Austin Texas, 51 F.L.R.A. 1166 (1996) 27, 31, 32
*Internal Revenue Service, Washington, D.C. and
Internal Revenue Service, Kansas City Service
Center, Kansas City, Missouri, 50 F.L.R.A. 661
(1995) passim
National Park Service, National Capital Region,
United States Park Police, 48 F.L.R.A. 1151 (1993) 18
Social Security Administration, Dallas Region,
Dallas, Texas, 51 F.L.R.A. 1219 (1996)) passim
U.S. Department of Justice, Immigration and
Naturalization Service, Northern Region,
Twin Cities, Minnesota, 51 F.L.R.A. 1467 (1996) 32
U.S. Department of the Treasury, Internal Revenue Service, Washington, D.C.
and U.S. Department of the Treasury,
Internal Revenue Service, Oklahoma City District,
Oklahoma City, Oklahoma, 51 F.L.R.A. 1391 (1996) 25, 26
STATUTES
Federal Service Labor-Management Relations Statute,
5 U.S.C. §§ 7101-7135 (1994 & Supp. II 1996) 1
5 U.S.C. § 7105(a)(2)(G) 1
5 U.S.C. § 7106 4
5 U.S.C. § 7114(b)(4) passim
5 U.S.C. § 7114(b)(4)(B) 7, 16
5 U.S.C. § 7116(a)(1) 2
5 U.S.C. § 7116(a)(5) 2
5 U.S.C. § 7116(a)(8) 2
5 U.S.C. § 7123 2
5 U.S.C. § 7118 2
5 U.S.C. § 7123(a) 2
5 U.S.C. § 7123(c) 12, 29
706(2)(A) 12
GLOSSARY
AFGE - American Federation of Government
Employees, AFL-CIO
Allenwood Prison - U.S. Dep't of Justice, Bureau of
Prisons, Allenwood Federal Prison Camp, Montgomery,
Pennsylvania, 988 F.2d 1267 (D.C. Cir. 1993)
ALJ - Administrative Law Judge
Br. - Brief
Bureau - Bureau of Prisons
FOIA - Freedom of Information Act
IRS, Austin - Internal Revenue Service, Austin
District Office, Austin Texas, 51 FLRA 1166 (1996)
IRS, Kansas City - Internal Revenue Service, Washington,
D.C. and Internal Revenue Service, Kansas City Service Center,
Kansas City, Missouri, 50 FLRA 661 (1995)
IRS, Oklahoma City - U.S. Dep't of the Treasury, Internal
Revenue Service, Washington, D.C. and U.S. Dep't of the
Treasury, Internal Revenue Service, Oklahoma City District,
Oklahoma City, Oklahoma, 51 FLRA 1391, (1996)
JA - Joint Appendix
Justice v. FLRA - U.S. Dep't of Justice v. FLRA,
991 F.2d 285, (5th Cir. 1993)
Local 2343 - The American Federation of Government
Employees, Local 2343
National Park National Park Service, National Capital
Service - Region, United States Park Police, 48 FLRA 1151 (1993)
NLRB V. FLRA - NLRB v. FLRA, 952 F.2d 523 (D.C. Cir.
1992)
OIA - Office of Internal Affairs at the Bureau of Prisons
Penitentiary - U.S. Department of Justice, Federal
Bureau of Prisons, U.S. Penitentiary, Marion, Illinois
Scott AFB - Department of the Air Force, Scott Air
Force Base, Illinois, 51 FLRA 675, 677 (1995), enf'd 104 F.3d
1396 (D.C. Cir. 1997)
Scott AFB v. FLRA - Department of the Air Force, Scott Air
Force Base v. FLRA, 104 F.3d 1396 (D.C. Cir. 1997)
Statute - Federal Service Labor-Management
Relations Statute, 5 U.S.C. §§ 7101-7135
ULP - Unfair Labor Practice
Union - The American Federation of Government
Employees, Local 2343
VA v. FLRA - U.S. Dep't of Veterans Affairs v. FLRA,
1 F.3d 19, 23 (D.C. Cir. 1993)
ORAL ARGUMENT SCHEDULED FOR MARCH 6, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 97-1355
_______________________________
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2343,
Petitioner
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
_______________________________
ON PETITION FOR REVIEW OF AN ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY
BRIEF FOR THE
FEDERAL LABOR RELATIONS AUTHORITY
STATEMENT OF JURISDICTION
The final decision and order under review in this case was issued by the
Federal Labor Relations Authority (Authority) in U.S. Department of Justice,
Federal Bureau of Prisons, Marion, Illinois, 52 FLRA 1195 (1997). The
Authority exercised jurisdiction over the case pursuant to section 7105(a)
(2)(G) of the Federal Service Labor-Management Relations Statute, 5 U.S.C.
§§ 7101-7135 (1994 & Supp. II 1996) (Statute).[1]
This Court has jurisdiction to review the Authority's decisions and orders
pursuant to section 7123(a) of the Statute. The American Federation of
Government Employees, Local 2343 ("Local 2343" or "union") filed a petition
for review within the 60-day time limit provided by 5 U.S.C. § 7123.
STATEMENT OF THE ISSUE
Whether the Authority properly concluded that the agency employer did not
commit unfair labor practices when it refused to furnish the union with an
investigative report, because the union had not demonstrated a
particularized need for the information.
STATEMENT OF THE CASE
I. Nature of the case
This case arose as an unfair labor practice (ULP) proceeding under section
7118 of the Statute and involves an Authority adjudication of a complaint
based on charges filed by Local 2343. The complaint alleged that the U.S.
Department of Justice, Federal Bureau of Prisons, U.S. Penitentiary, Marion,
Illinois (Penitentiary) violated section 7116(a)(1), (5), and (8) of the
Statute when it failed to provide Local 2343 with information concerning an
investigation of a bargaining unit employee conducted by the Office of
Internal Affairs (OIA) of the Federal Bureau of Prisons (Bureau). The
Authority dismissed the complaint, finding that Local 2343 had not
demonstrated the required particularized need for the information.
Local 2343 has petitioned this Court for review of the Authority's order
dismissing the complaint.
II. Statement of the Facts
The American Federation of Government Employees, AFL-CIO (AFGE) is the
exclusive collective bargaining representative of a nationwide bargaining
unit of the Bureau's employees (JA 85).[2] Local 2343 is the agent of AFGE
for the purpose of representing employees at the Penitentiary, an activity
of the Bureau (id.).
On February 19, 1993, a prison inmate named Baptiste, who had been
transferred the day before from segregated confinement into the general
prison population, was released into the prison's recreation area with
approximately 17 other inmates. Baptiste immediately confronted another
inmate in a fighting stance. Several correctional officers, including
Officer Aubrey Francis, removed Baptiste to another area of the prison.
Baptiste resisted the officers' attempts to remove him and had to be
restrained (JA 28-29).
Subsequently, Officer Francis was accused by a supervisory corrections
officer of using excessive force while transporting Baptiste from the
recreation area. The allegation of prisoner abuse was referred to the OIA
and Officer Francis was placed on home duty pending an investigation (JA
29).[3]
On March 9, 1993, Local 2343 filed a grievance alleging that the
Penitentiary had been warned by prison staff that inmate Baptiste would
start a fight if he were released into the recreation area, and that by
releasing the inmate the Penitentiary had endangered the lives of prison
staff and other inmates in violation of the health and safety provisions of
the parties' collective bargaining agreement (JA 47-49). The grievance
stated that the Penitentiary's actions "force[d] staff into a position of
having to fight an inmate when there was no need" (JA 48).
The grievance alleged the Penitentiary's conduct violated Section a.1. of
the "Health and Safety" provision of the parties' negotiated collective
bargaining agreement (JA 47). As a remedy, the union sought a complete
investigation by OIA of all supervisors involved in the incident and the
transfer of various supervisory and managerial employees (id.). As relevant
here, the Health and Safety article provides:
Section a. There are essentially 2 distinct areas of concern regarding the
safety and health of employees in the Federal Bureau of Prisons:
1. the first, which affects the safety and well-being of employees,
involves the inherent hazards of a correctional environment . . . .
. . . .
With respect to the first, the Employer agrees to lower those inherent
hazards to the lowest possible level, without relinquishing its rights under
5 USC 7106. The Union recognizes that by the very nature of the duties
associated with supervising and controlling inmates, these hazards can never
be completely eliminated.
(JA 5-6 n.4).
On March 26, 1993, the Penitentiary denied the grievance, asserting in
essence that its decision to release Baptiste from segregated confinement
was justified (JA 50). In response, the union invoked arbitration on April
7, 1993 (JA 51).
On July 7, 1993 the Union requested that the Penitentiary provide it "copies
of any and all notes, memoranda, documentation, etc. of any internal
investigation conducted regarding . . . Baptiste and the incident which
occurred on February 19, 1993" (JA 52). The request indicated the
information was being sought to prepare for the arbitration of the grievance
then scheduled for August 4 and 5, 1993 (id.).
Not receiving a response from the Penitentiary, Local 2343 submitted a
second request on July 23, 1993, asking for all reports and other
documentation on the incident, as well as "all reports, findings,
conclusions, memo's [sic], affidavits and all concerned documents" relating
to the investigation of Officer Francis (JA 57). Local 2343 clarified that
"[t]his information is needed by the Union to prepare itself for the up
coming [sic] arbitration case on the Safety issue" (JA 55). The union added
that "[m]anagement has this information to present during the arbitration
and the Union needs the same information so it may effectively present its
case" (JA 56).
The Penitentiary responded on July 29, 1993, refusing to provide the union
with the information it requested (JA 58). The response, noting that the
union had requested a copy of the OIA investigative report on the Officer
Francis' alleged abuse of Baptiste, advised the union that the OIA report
substantiated "none of the allegations of staff misconduct" and, therefore,
"none of [the report's] contents would be information to resolve reasonably
any grievance" (id.). The Penitentiary also stated that since the
investigation was conducted by OIA, OIA was in possession of all other
materials (id.).
On August 12, 1993, the union filed ULP charges over the Penitentiary's
refusal to provide the requested information (JA 65).[4] The union
continued to request the information at various levels of the Bureau, but it
has never been provided.[5]
III. Proceedings below
A. The ALJ's decision
The case was first heard by an Authority Administrative Law Judge (ALJ). In
addition to receiving testimony, the ALJ conducted an in camera examination
of the OIA report on Officer Francis, along with a second report on an
allegedly false statement given by another officer during the OIA
investigation of Officer Francis (JA 34-35). The ALJ found that the first
report on the correctional officer "did not focus specifically on . . . the
subject of the Union's grievance," but did contain statements supporting
"the Union's premise that Baptiste was a volatile individual" (JA 35-36).
The ALJ found that the second report tended to support "the Union's
allegation that [the Penitentiary] was fully aware that Baptiste would start
a fight" upon being released into the recreation area (JA 36).
The ALJ determined that National Labor Relations Board v. FLRA, 952 F.2d 523
(D.C. Cir. 1992) (NLRB v. FLRA), and Authority decisions applying NLRB v.
FLRA required the Union to establish a particularized need for the OIA
reports, as well as for their supporting documentation, because the
information constituted "managerial advice, guidance, or counsel to [the
Penitentiary] concerning the matters under investigation within the meaning
of section 7114(b)(4)(B) of the Statute" (JA 38). The ALJ found that the
union had failed to establish a particularized need for the reports and
concluded, therefore, that the Penitentiary's refusal to disclose them or
their supporting documentation did not violate the Statute (JA 38-39).[6]
B. The Authority's decision
In a 2-1 decision, the Authority dismissed the ULP complaint, finding that
the union was required to demonstrate a particularized need for the
information and that it had failed to do so.
1. Analytical framework
The Authority first reviewed its relevant precedent issued subsequent to the
ALJ's decision. In Internal Revenue Service, Washington, D.C. and Internal
Revenue Service, Kansas City Service Center, Kansas City, Missouri, 50 FLRA
661 (1995) (IRS, Kansas City), the Authority held that, in order to
effectuate the purposes of the Statute, it would apply the "particularized
need" standard introduced in NLRB v. FLRA to all requests for information
under section 7114(b)(4) "whether or not the information request involves
intramanagement guidance" (JA 10, quoting 50 FLRA at 669). Accordingly, the
Authority required the union in this case to establish and articulate a
particularized need for the information it requested without regard to
whether that information constituted advice, guidance, or counsel for
management officials (JA 10-11).
The Authority noted that IRS, Kansas City held that a union requesting
information under section 7114(b)(4) of the Statute must articulate, with
specificity, the uses to which the information will be put and why the
information is required in order for the union to adequately discharge its
representational functions (JA 11). Further, the Authority stated that 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 (citing Social Security Administration, Dallas Region,
Dallas, Texas, 51 FLRA 1219, 1223-24 (1996) (SSA, Dallas)) (id.).
2. Application of the framework in this case
Applying this framework in the instant case, the Authority found that the
union had not demonstrated a particularized need for the requested
information and, therefore, concluded that the Penitentiary had not violated
the Statute by refusing to furnish the information. The Authority noted
that on both occasions when Local 2343 requested the information developed
by the OIA investigation, the union's only explanation was its conclusory
assertion that it needed the information to prepare for arbitration of its
previously filed grievance (JA 11). Because this assertion did not, on its
own, meet the standard established by IRS, Kansas City, the Authority found
it appropriate to examine the grievance itself to determine whether the
Union's requests were sufficient to permit the Respondent to make a reasoned
judgment about its obligation to disclose the information (id.).
In examining the grievance for this limited purpose, the Authority noted
that the union testified at the hearing that the grievance raised two
separate issues: "the fact that [Officer Francis] was being put on home-duty
status," and the "health and safety issue" resulting from the inmate's
release into the recreation area (JA 12; 93). With respect to the first
issue -- the correctional officer's placement on home duty -- the Authority
found that the Penitentiary had no reason to know that issue was part of the
arbitration for which the Union requested information (JA 12). As to the
second issue -- the effect on health and safety of the inmate's release into
the recreation area -- the Authority concluded that the union never
explained why it needed the information developed by the OIA investigation
of Officer Francis in order to show that Baptiste's release adversely
affected health and safety (id.).
Concerning the issue of Officer Francis' assignment to home duty, the
Authority noted that the grievance only mentioned his placement on home duty
as a consequence of the incident involving Baptiste (JA 12). The Authority
found that the grievance did not contest the home-duty assignment, nor did
it address the allegations against Officer Francis. Further, the Authority
noted that the grievance sought no remedy with respect to Officer Francis
and the Authority pointed out that prior to the information request, the
officer had been cleared of the allegations against him (JA 12-13).
Moreover, the Penitentiary's response to the grievance, which addressed only
the propriety of releasing Baptiste from segregated confinement and did not
even mention Officer Francis, confirmed that the grievance was limited to
the effect on health and safety. Thus, the Authority concluded that neither
the union's information request, nor the grievance itself provided the
Penitentiary reason to be aware that the allegations against Officer Francis
and his placement on home duty were at issue in the arbitration (JA 10).
In contrast, the Authority found that both parties clearly understood that
the issue of whether the Penitentiary had endangered health and safety by
improperly releasing Baptiste into the recreation area was raised in the
grievance (JA 14). However, according to the Authority, the Union at no
time explained why it needed the information from the OIA investigation into
the correctional officer's conduct or what it planned to do with that
information concerning its grievance over health and safety. The Authority
found nothing in the record which demonstrated the connection between the
investigation of Officer Francis' alleged misconduct and arbitrating the
health and safety issue in the Union's grievance. In this regard, the
Authority noted that even the union's testimony at the hearing indicated
only that it sought the investigation material in order to discover "exactly
what happened . . . exactly who has been charged [and] why they were
charged[,]" and not information about Baptiste's release from confinement
(JA 14; 97). The Authority concluded that the union had not properly
articulated its need for the OIA report to prepare for the arbitration of
the safety and health issue (JA 14).
Finally, the Authority distinguished this case from others where it had
found that a union established a particularized need for information in
order to discharge its representational responsibilities because in those
cases the record established that the union had communicated to the agency
why it needed certain information. In contrast here, the Authority found
that Local 2343 communicated nothing to the Respondent at or near the time
of its information requests to explain why it needed the information
developed by the OIA investigation of the correctional officer to prepare
for or present its grievance over the safety and health issue (JA 16-17).
In conclusion, the Authority held that the record failed to establish that
the Union had communicated a particularized need for the information
described in the complaint such that the Respondent's refusal to furnish
that information violated the Statute. Accordingly, the ULP complaint was
dismissed (JA 18).[7]
STANDARD OF REVIEW
The standard of review of decisions of the Authority is narrow: Authority
action shall be set aside only if "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law[.]" 5 U.S.C. §§ 7123(c)
and 706(2)(A). Overseas Educ. Ass'n v. FLRA, 858 F.2d 769, 771-72 (D.C. Cir.
1988); EEOC v. FLRA, 744 F.2d 842, 847 (D.C. Cir. 1984), cert. dismissed,
476 U.S. 19 (1986). Under this standard, unless it appears from the Statute
or its legislative history that the Authority's construction of its enabling
act is not one that Congress would have sanctioned, the Authority's
construction should be upheld. See Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 844 (1984). See also Fort
Stewart Sch. v. FLRA, 495 U.S. 641 (1990).
Further, factual findings of the Authority that are supported by substantial
evidence on the record as a whole are conclusive. 5 U.S.C. § 7123(c);
National Treasury Employees Union v. FLRA, 721 F.2d 1402, 1405 (D.C. Cir.
1983) (NTEU v. FLRA). The Authority is entitled to have reasonable
inferences it draws from its findings of fact not be displaced, even if the
court might have reached a different view had the matter been before it de
novo. See AFGE Local 2441 v. FLRA, 864 F.2d 178, 184 (D.C. Cir. 1988) (AFGE
Local 2441); see also Peoples Gas Sys., Inc. v. NLRB, 629 F.2d 35, 42 (D.C.
Cir. 1980).
Finally, as the Supreme Court has stated, the Authority is entitled to
"considerable deference when it exercises its 'special function of applying
the general provisions of the [Statute] to the complexities' of federal
labor relations." Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S.
89, 97 (1983).
SUMMARY OF ARGUMENT
I. Applying the standards first enunciated in this Court's decision in NLRB v.
FLRA, and further developed in the Authority's IRS, Kansas City decision, the
Authority properly determined that Local 2343's request for data developed in
the investigation of Officer Francis was insufficient to establish a
particularized need for the information. Under IRS, Kansas City, a union
requesting information under section 7114(b)(4) of the Statute must inform the
agency employer, with specificity, the uses to which the information will be put
and why the information is required in order for the union to adequately
discharge its representational functions.
II. In this case, the union's requests for information stated only that it
needed the information to prepare for arbitration of a previously-filed
grievance. It is well established that such conclusory statements are
insufficient to demonstrate the requisite particularized need.
The Authority's examination of the grievance referenced in the information
request revealed no further grounds for concluding that the Penitentiary was
adequately informed of the union's need for the information. In this
regard, the grievance filed by the union, and the agency's response, clearly
indicate that the grievance concerned the safety and health implications of
the Penitentiary's decision to release inmate Baptiste into the general
prison population. The grievance cannot be reasonably construed to concern
subsequent events, including the prisoner abuse allegations against Officer
Francis and his assignment to home duty.
On the other hand, the information requested by the union consisted solely
of the OIA reports and supporting data developed in the investigation into
the alleged prisoner abuse by Officer Francis. Nothing in the record
demonstrates that the union ever articulated how these investigations would
be necessary to prepare for the arbitration of the grievance over the safety
and health implications of the Penitentiary's decision to release inmate
Baptiste.
Nor is the need "self-evident" as claimed by the union. The union has
neither shown that the need is self-evident nor has it cited authority of a
rationale for the existence of a "self-evident" exception to the requirement
that the union specifically articulate its need for information.
III. The union's arguments in brief provide no other reason why the
Authority's decision should not be affirmed. Contrary to the union's
suggestions, the decision in this case is consistent with other decisions of
this Court and the Authority. Although the union correctly cites this Court's
decision in Scott AFB v. FLRA for the proposition that information may be
necessary even where it does not support the position espoused by the union,
that case fails to advance the union's position here. The basis for the
Authority's decision in this case was that the union had failed to meet its
burden of articulating the necessity for the information, not that the
information would fail to support the union's litigation position in
arbitration. In any event Scott AFB v. FLRA is distinguisable from this case
because as the Court found, the union in Scott AFB v. FLRA adequately
articulated its particularized need.
Finally, the Authority's particularized need standard does not impose an
undue burden on unions. Contrary to Local 2343's suggestion, the Authority
has never required a union to detail how the specific content of a document
will be used by the union where the content is unknown, nor does it do so
here. The Authority requires only that the union articulate how the
information will function in the performance of the union's representational
activities. For example, where a union is representing an employee who is
subject to discipline for misconduct, and it requests data relevant to
discipline of other employees, the Authority has found a particularized need
where the union has stated that it needs to compare disciplinary sanctions
to determine the appropriateness of the penalty imposed on the represented
employee. In such a case, the union need not, and normally does not, know
the specific content of the documents requested, i.e., whether previous
disciplinary actions are more or less harsh than the current case.
The problem for the union in this case was that it offered virtually no
explanation as to why it needed the information. Accordingly, the Authority
properly found that it had not met its burden of articulating its
particularized need for the information.
ARGUMENT
THE AUTHORITY PROPERLY CONCLUDED THAT THE AGENCY EMPLOYER DID NOT COMMIT UNFAIR
LABOR PRACTICES WHEN IT REFUSED TO FURNISH THE UNION WITH AN INVESTIGATIVE
REPORT, BECAUSE THE UNION HAD NOT DEMONSTRATED A PARTICULARIZED NEED FOR THE
INFORMATION
I. The particularized need standard
A. Precedent of this Court
In NLRB v. FLRA, this Court determined that pursuant to section 7114(b)(4)
(B), unions are entitled to information that is "necessary" -- not merely
relevant -- to subjects within the scope of collective bargaining. 952 F.2d
at 531. Unions can obtain disclosure of such information only if they can
demonstrate a particularized need and no countervailing anti-disclosure
interests outweigh the union's need. 952 F.2d at 531-32. NLRB v. FLRA
concerned a union request for predecisional intramanagement communications.
952 F.2d at 525.
In subsequent cases, this Court further developed, clarified, and
broadened the concept of "particularized need." In United States Dep't
of Justice, Bureau of Prisons, Allenwood Federal Prison Camp,
Montgomery, Pennsylvania v. FLRA, 988 F.2d 1267 (D.C. Cir. 1993)
(Allenwood Prison Camp v. FLRA), the Court required the union to
demonstrate a particularized need for information other than
predecisional "intramanagement guidance." The Court concluded that the
Statute does not distinguish between "predecisonal, deliberative" data
from other sorts of information. 988 F.2d at 1270. The Court found the
necessity requirement of section 7114(b)(4) of the Statute to be
"uniform." Id. Further, the Court clarified that it was the union's
burden to properly articulate its "particularized need," noting that a
"mere assertion that it needs data to process a grievance" does not
suffice to guarantee access to data. 988 F.2d at 1271; see also U.S.
Dep't of Veterans Affairs v. FLRA, 1 F.3d 19, 23 (D.C. Cir. 1993) (VA v.
FLRA) ("This court's decisions require a showing by the union of
'particularized need[.]'").[8]
B. Authority precedent
On remand from NLRB v. FLRA, the Authority agreed that a union must
establish a particularized need as defined by the Court when seeking
information that can be characterized as intramanagement guidance. National
Park Service, National Capital Region, United States Park Police, 48 FLRA
1151 (1993) (National Park Service). In IRS, Kansas City, after noting this
Court's decisions in Allenwood Prison Camp v. FLRA and VA v. FLRA, the
Authority determined that the purposes of the Statute would not be served by
establishing different approaches based on the type of information requested
and adopted a particularized need standard for all information requests
regardless of the type of information sought. 50 FLRA at 668-69.
IRS, Kansas City also provided the Authority an opportunity to further
explain how the particularized need standard would be applied. The
Authority first clarified that "particularized need" referred not to a
"heightened level of need" for certain documents, but rather to the
specificity required in the union's showing of need in their request for
data under section 7114(b)(4) of the Statute. 50 FLRA at 669 n.11. A
particularized need is demonstrated when the union "articulate[s] 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."
50 FLRA at 669. The union must show that the information is "required for
the union to adequately represent its members." 50 FLRA at 669-70 (citing
Justice v. FLRA, 991 F.2d at 290).
The burden for articulating a particularized need rests on the union. 50
FLRA at 670. A request for information satisfies this burden only where it
is sufficient to permit an agency to make "a reasoned judgment" as to
whether the information is necessary within the scope of section 7114(b)(4)
of the Statute. Id. On the other hand, a request need not be so specific as
to reveal a union's strategies or compromise the identity of potential
grievants. 50 FLRA at 670 n. 13.
II. Local 2343 failed to establish and articulate a particularized need for the
OIA investigation concerning Officer Francis' alleged misconduct
A. The acknowledged focus of the union's information request was a
grievance alleging that releasing inmate Baptiste into the general prison
population violated the safety and health provisions of the parties'
collective bargaining agreement
Both the union's initial request for information (JA 52) and its follow-up
request (JA 54) cite as a justification only that the information was
necessary to prepare for a scheduled arbitration hearing. As is well-
established, such conclusory statements are insufficient by themselves to
establish a particularized need. See IRS, Kansas City, 50 FLRA at 670.
However, since the request clearly referenced a specific grievance
arbitration case, the Authority properly looked beyond the face of the
information request and considered the grievance referenced therein.
The union filed a grievance over an alleged violation of the safety and
health provisions of the parties' collective bargaining agreement. See JA
at 47-49. The grievance describes in detail the events leading up to inmate
Baptiste's release from segregated confinement into the general prison
population, specifically his release into the recreation area where he
immediately started a fight with another inmate. JA 47-48. The relevant
collective bargaining provision obligates the Penitentiary to minimize the
inherent hazards connected with the supervision of inmates. The grievance
alleges that prison management knew that a fight would develop and thereby
management "force[d] staff into the position of having to fight an inmate
where there was no need." JA 48.
As the Authority found, the grievance did not concern any allegations
against Officer Francis or his assignment to home duty. In that regard, the
grievance's sole reference to Officer Francis noted only that as a
consequence of the incident resulting from Baptiste's release, one officer
was injured and another was placed on home duty.[9] JA 48. However, the
grievance does not further discuss the injury, or question the reason for or
the propriety of the assignment to home duty. The grievance neither
identifies the reason for the home-duty assignment nor questions the
propriety of the assignment. Further, as specific remedies the union
requested an investigation of all supervisors involved in the incident and
the transfer of certain specified supervisors named in the grievance. No
remedy was requested with respect to the home-duty assignment. Accordingly,
it is evident from the grievance document that the union was challenging
only the Penitentiary's determination to release Baptiste from segregated
confinement and not the allegations against Officer Francis nor his
subsequent assignment to home duty.
Moreover, Penitentiary management interpreted the grievance as concerning
only the safety and health issue raised by releasing Baptiste from
segregated confinement. In its response characterizing the grievance as
"concerning health and safety," the Penitentiary addressed only the
propriety of Baptiste's release and did not mention the subsequent
allegations against Officer Francis. JA 50. When it invoked arbitration,
the union stated that the Penitentiary's rejection of the grievance "was not
for just and sufficient cause" and that "all supervisors involved should be
given adverse action." JA 51. The union did not object to the fact that
management's response limited the scope of the grievance to the propriety of
Baptiste's release.[10]
The record is clear that the grievance concerned only management's
determination to release Baptiste from segregated confinement and that
neither the subsequent allegations of prisoner abuse against Officer Francis
nor the propriety of his assignment to home duty were to be arbitrated.[11]
Accordingly, the only need the union articulated for the information
requested related to management's decision to release Baptiste from
segregated confinement. As we demonstrate below, the union at no time
explained why it needed the OIA investigation into Officer Francis' alleged
misconduct to prepare for arbitration of the safety and health issue.
B. The data requested by the union consisted of the OIA investigation and
supporting documents concerning allegations of misconduct on Officer
Francis' part
The most detailed request for information was the union's follow-up request
dated July 23, 1993.[12] There the union specifically requested:
[1] All documentation obtained by the S.I.S. department at USP., Marion,
Ill. in connection with the investigation of Officer Aubrey Francis and the
Baptiste incident.[13]
[2] All reports, documentation and memo's written by everyone who was
interviewed by the S.I.S. department at USP., Marion Ill., concerning this
incident.
[3] Any final reports written by the S.I.S. department at USP., Marion,
Ill., concerning this incident.
[4] Any and all reports findings, conclusions, memo's affidavits and all
concerned documents obtained by the Office of Inspection concerning the
investigation of Officer Aubrey Francis.
JA 57 (emphasis added). Each of the paragraphs of the union's request
references the incident concerning Officer Francis. It is reasonable therefore
to conclude, as the Penitentiary did, that the union's request was for data
developed in investigating the conduct of Officer Francis. Management's formal
denial of the union's request confirms its understanding. There the
Penitentiary stated, "Specifically, you [the union] requested a copy of an
Office of Internal Affairs investigation of Physical Abuse of an Inmate,
(subject: Aubrey Francis, Correctional Officer), at USP Marion."[14] JA 58.
Significantly, the union has never claimed that its request was broader than
that. In that regard, the ULP complaint issued by the Authority's General
Counsel states that "AFGE Local 2343 requested the [Penitentiary] to furnish
data pertaining to the Office of Internal Affairs investigation of bargaining
unit employee, Aubrey Francis." JA 42.
C. The union failed to articulate to the Penitentiary how the investigative
reports concerning Officer Francis were required to prepare for arbitration
of the safety and health issue
As discussed above, the record in this case shows that the information
requested consisted of OIA reports and related materials arising from the
investigation of Officer Francis. The union's stated purpose in requesting
the information was to prepare for the arbitration of a previously-filed
grievance, which alleged that the Penitentiary violated the safety and
health provisions of the collective bargaining agreement when it released
inmate Baptiste from segregated confinement into the general prison
population. However, applying the standard first enunciated in IRS, Kansas
City, the Authority properly found that the union had not articulated a
particularized need for the information requested and therefore, the
Penitentiary was not obligated to furnish the information.[15]
The union's information requests cite only the general need to prepare for
arbitration. As this Court emphasized, bare and conclusory assertions such
as a "mere assertion that it needs data to process a grievance" are
insufficient to establish particularized need. Allenwood Prison Camp v.
FLRA, 988 F.2d at 1271. In following this Court's admonition, the Authority
has consistently found that similar assertions do not satisfy the standard.
See U.S. Dep't of the Treasury, Internal Revenue Service, Washington, D.C.
and U.S. Dep't of the Treasury, Internal Revenue Service, Oklahoma City
District, Oklahoma City, Oklahoma, 51 FLRA 1391, 1396 (1996) (IRS, Oklahoma
City). Such assertions cannot permit agencies to make reasoned judgments as
to their obligations to furnish data under section 7114(b)(4) of the
Statute. Further, the union can point to nothing in the record which
constitutes a further statement of its need for the information.[16]
The union claims (Br. 26), however, that its need for the information was
"self-evident," i.e., no further explanation was necessary.[17] The union
is mistaken for a number of reasons. First, it was not, in fact, self-
evident to Penitentiary management that investigative reports of incidents
that occurred on the day Baptiste was released into the general population
were necessary for the union's preparation for arbitration of the health and
safety grievance. See JA 115 (Penitentiary human resource manager testified
that he saw no relation between OIA report and the grievance filed by the
union).
Second, there is no authority for the proposition that a union is excused
from the requirement to articulate its particularized need because such need
is "self-evident." To the contrary, in applying the IRS, Kansas City
analysis, the Authority has consistently required unions to expressly
articulate the need for the information requested. For example, in IRS,
Oklahoma City, the union had grieved an employee's performance appraisal,
alleging among other things "sexual discrimination and disparate treatment."
51 FLRA at 1392. The union then requested performance appraisals of other
employees in the grievant's work unit, stating that "although the grievant
is performing a different job function, it is the position of the union that
the aforementioned appraisals are necessary in order to support our
allegations." Id. The Authority found the union's request insufficient to
establish particularized need, stating that the union should have explained
precisely how the requested appraisals would support the claim of disparate
treatment. 51 FLRA at 1396. Significantly, the Authority was unpersuaded
by the argument that the reasons for the request "should have been
reasonably obvious to the [agency.]" Id.; Cf. Internal Revenue Service,
Austin District Office, Austin, Texas, 51 FLRA 1166, 1178 (1996) (IRS,
Austin) (union established particularized need for disciplinary notices
where it expressly stated that it needed to compare actions taken with
respect to misconduct similar to that alleged against employee to analyze
propriety of proposed action).
Further, it is prudent policy for the Authority to require that the union
express its need for information rather than rely on the "self-evident"
nature of the need in certain circumstances. Judgments as to what is
"obvious" or "self-evident" are by their very nature subjective and could
well eventuate in charges of arbitrariness in decision making. Moreover, it
is unclear under the union's proposed "self-evident" standard just who is to
determine what is self-evident -- the union, the agency, the Authority, or
the reviewing court of appeals.
Although in hindsight one can speculate about ways in which a report
concerning the aftermath of Baptiste's release might have touched on matters
leading up to Baptiste's release, such speculation cannot be the basis of a
particularized need finding. It remains the burden of the union to
articulate its need, and it must do so at the time of the request.[18] See
Allenwood Prison Camp v. FLRA, 988 F.2d at 1271. Here the union failed to
meet that burden.[19]
The Authority reasonably determined that: 1) the stated purpose of the
information request was to prepare for arbitration of the union's grievance;
2) the grievance concerned only whether management's decision to release
Baptiste violated the Safety and Health article of the agreement and did not
raise issues concerning Officer Francis' home-duty assignment; and 3) the
union did not articulate with any specificity why it needed the reports to
prepare for arbitration of the safety and health issue. These findings
resulted from the Authority's evaluation of the factual record in this case
and are supported by substantial evidence, i.e., "relevant evidence as a
reasonable mind might accept as adequate to support a conclusion." State of
New York v. Reilly, 969 F.2d 1147, 1150 (D.C. Cir. 1992) (quoting Universal
Camera v. NLRB, 340 U.S. 474, 477 (1951)).[20] From these findings the
Authority reasonably concluded that the union had not established a
particularized need for the information and therefore properly dismissed the
ULP complaint.
III. The union's remaining contentions are without merit
A. This Court's decision in Scott AFB is inapposite
Citing Department of the Air Force, Scott Air Force Base v. FLRA, 104 F.3d
1396 (D.C. Cir. 1997) (Scott AFB v. FLRA), the union argues (Br. 24) that
unions have a right to information that will assist them in evaluating the
desirability of arbitration, including information that does not support
their position. Thus, the union asserts that the Penitentiary's contention
that the information sought would not support the union's grievance is
irrelevant. Although the union's statements of the relevant principles are
essentially accurate, they do not advance the union's position in this case.
Although the Penitentiary may have denied the information request because in
the Penitentiary's view the documents would not support the union's
arbitration position, this rationale was not relied upon by the Authority in
dismissing the ULP complaint. Rather, the Authority's sole basis for
dismissing the complaint was that the union had not met its burden of
articulating the necessity of the OIA reports in connection with arbitrating
the safety and health issue.
Nor does Scott AFB v. FLRA support Local 2343's position because the union
in Scott AFB v. FLRA articulated a particularized need for the information
requested and thus met its burden. In Scott AFB v. FLRA, the union had
filed a grievance over a supervisor's alleged physical assault on a
bargaining unit employee, and requested that the employer take certain steps
to remedy the situation, including action against the supervisor. 104 F.3d
at 1398. The union asked for copies of any disciplinary letter issued to
the supervisor over the incident, stating that "we need this information to
determine if the requested remedy of disciplinary action was in fact taken
and what that action was. Upon review of this information, we may conclude
that no further action i[s] warranted in this case." Department of the Air
Force, Scott Air Force Base, Illinois, 51 FLRA 675, 677 (1995), enforced
Scott AFB v. FLRA 104 F.3d 1396 (Scott AFB). As this Court found, the
union articulated the specific connection between the disciplinary letter
requested and preparation for arbitration, and also showed how the
information would be used, namely, to determine if management's actions were
sufficient to permit the grievance to be withdrawn. Scott AFB v. FLRA, 104
F.3d at 1400. Here, by contrast, the union offered virtually no explanation
of why it needed the information.
B. The Authority's decision does not place an undue burden on the union
The union contends (Br. 27) that the Authority has imposed an impossible
standard because the union could not identify how the OIA reports would be
used when the union was not aware of their contents. The union
misinterprets the Authority's decision.
The Authority has never required that a union specify how the specific
content of a document will be used where the content is unknown, nor does it
do so here. That is, the Authority does not require that a union predict
the content of or likely results to be obtained from the requested
information. Rather, the Authority requires only that, as a minimum, the
union articulate how the document will be used and why the information is
necessary in performing a representational function.
Cases like those cited by the union (Br. at 27) demonstrate that a union's
projected use of documents can be made clear even though the precise content
of the information is unknown. In IRS, Austin, the union was representing
an employee against whom adverse action was proposed. The union had
requested, in connection with that representation, documentation of previous
discipline taken against other employees in the Austin District Office. The
Authority found that the union met the particularized need requirement
because it had expressly:
explained why it needs the information (to ascertain whether there was disparate
treatment of an employee), the uses to which the information will be put (to
determine the appropriateness of the proposed penalty); and the connection
between the uses and the Union's representational responsibilities under the
Statute (to represent an employee against whom an adverse action was proposed).
51 FLRA at 1178. The union's use for the information was sufficiently
articulated regardless of the specific content of requested information. If,
for example, the documents showed less harsh sanctions for offenses similar to
that in its current case, the union could argue that the proposed punishment was
too severe. If, on the other hand, the documents showed the opposite, the union
would know that such a defense would be inappropriate.[21] Similarly, in Scott
AFB v. FLRA, although the union did not know the content of the disciplinary
letter requested, it nonetheless was able to articulate how the letter was
necessary, irrespective of its specific content, in determining whether to
pursue arbitration. See Scott AFB, 51 FLRA at 682-84.
Further, the union's attempts to distinguish IRS, Austin and similar cases
on the ground that in those cases the union was aware of "the general form
and content" of the documents requested are unavailing. For here, as in
those cases, the union was aware of the "general form and content" of the
requested OIA reports. Local 2343 knew, at a minimum, the reports would
contain information about the charges against Officer Francis and the
findings of the investigation. See JA 97. Further, the union might have
suspected that the reports contained information concerning events leading
up to Baptiste's release. See JA 35 (ALJ decision). But what the union
failed to do was inform the Penitentiary as to what use the general sort of
information it suspected was in the documents would be in its preparation
for arbitration. The union's bare assertion that it was needed to "prepare
for arbitration" was not enough and properly found insufficient by the
Authority.
CONCLUSION
Local 2343's petition for review should be denied.
Respectfully submitted.
DAVID M. SMITH
Solicitor
JAMES F. BLANDFORD
Attorney
Federal Labor Relations Authority
607 14th St., N.W.
Washington, D.C. 20424
(202) 482-6620
DATE: January 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_______________________________
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2343,
Petitioner
v. No. 97-1355
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
_______________________________
CERTIFICATE OF SERVICE
I certify that copies of the Brief of The Federal Labor Relations Authority
have been served this day, by mail, upon the following:
Mark D. Roth, General Counsel
Judith D. Galat, Staff Counsel
American Federation of
Government Employees, AFL-CIO
80 F Street, N.W.
Washington, D.C. 20001
Janet Smith
Paralegal Specialist
January 21, 1998
I certify that the Brief of the Federal Labor Relations Authority does not
exceed 12,500 words, the maximum amount allowed under Circuit Rule 28(d).
________________________________
James F. Blandford
Attorney
January 21, 1998
§ 7105. Powers and duties of the Authority
* * * * * * * * * *
(a)(2) The Authority shall, to the extent provided in this chapter and in
accordance with regulations prescribed by the Authority-
* * * * * * * * * * *
(G) conduct hearings and resolve complaints of unfair labor practices under
section 7118 of this title;
* * * * * * * * * *
§ 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this chapter shall
affect the authority of any management official of any agency-
(1) to determine the mission, budget, organization, number of employees, and
internal security practices of the agency; and
(2) in accordance with applicable laws-
(A) to hire, assign, direct, layoff, and retain employees in the agency, or
to suspend, remove, reduce in grade or pay, or take other disciplinary
action against such employees;
(B) to assign work, to make determinations with respect to contracting out,
and to determine the personnel by which agency operations shall be
conducted;
(C) with respect to filling positions, to make selections for appointments
from-
(i) among properly ranked and certified candidates for promotion; or
(ii) any other appropriate source; and
(D) to take whatever actions may be necessary to carry out the agency
mission during emergencies.
(b) Nothing in this section shall preclude any agency and any labor
organization from negotiating-
(1) at the election of the agency, on the numbers, types, and grades of
employees or positions assigned to any organizational subdivision, work
project, or tour of duty, or on the technology, methods, and means of
performing work;
(2) procedures which management officials of the agency will observe in
exercising any authority under this section; or
(3) appropriate arrangements for employees adversely affected by the
exercise of any authority under this section by such management officials.
7114. Representation rights and duties
* * * * * * * * * *
(b) The duty of an agency and an exclusive representative to negotiate in
good faith under subsection (a) of this section shall include the
obligation-
* * * * * * * * * *
(4) in the case of an agency, to furnish to the exclusive representative
involved, or its authorized representative, upon request and, to the extent
not prohibited by law, data-
(A) which is normally maintained by the agency in the regular course of
business;
(B) which is reasonably available and necessary for full and proper
discussion, understanding, and negotiation of subjects within the scope of
collective bargaining; and
(C) which does not constitute guidance, advice, counsel, or training
provided for management officials or supervisors, relating to collective
bargaining; and
(5) if agreement is reached, to execute on the request of any party to the
negotiation a written document embodying the agreed terms, and to take such
steps as are necessary to implement such agreement.
(c)(1) An agreement between any agency and an exclusive representative shall
be subject to approval by the head of the agency.
(2) The head of the agency shall approve the agreement within 30 days from
the date the agreement is executed if the agreement is in accordance with
the provisions of this chapter and any other applicable law, rule, or
regulation (unless the agency has granted an exception to the provision).
(3) If the head of the agency does not approve or disapprove the agreement
within the 30-day period, the agreement shall take effect and shall be
binding on the agency and the exclusive representative subject to the
provisions of this chapter and any other applicable law, rule, or
regulation.
(4) A local agreement subject to a national or other controlling agreement
at a higher level shall be approved under the procedures of the controlling
agreement or, if none, under regulations prescribed by the agency.
§ 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair labor practice
for an agency-
(1) to interfere with, restrain, or coerce any employee in the exercise by
the employee of any right under this chapter;
* * * * * * * * * *
(5) to refuse to consult or negotiate in good faith with a labor
organization as required by this chapter;
* * * * * * * * * *
(8) to otherwise fail or refuse to comply with any provision of this
chapter.
§ 7118. Prevention of unfair labor practices
(a)(1) If any agency or labor organization is charged by any person with
having engaged in or engaging in an unfair labor practice, the General
Counsel shall investigate the charge and may issue and cause to be served
upon the agency or labor organization a complaint. In any case in which the
General Counsel does not issue a complaint because the charge fails to state
an unfair labor practice, the General Counsel shall provide the person
making the charge a written statement of the reasons for not issuing a
complaint.
(2) Any complaint under paragraph (1) of this subsection shall contain a
notice-
(A) of the charge;
(B) that a hearing will be held before the Authority (or any member thereof
or before an individual employed by the authority and designated for such
purpose); and
(C) of the time and place fixed for the hearing.
(3) The labor organization or agency involved shall have the right to file
an answer to the original and any amended complaint and to appear in person
or otherwise and give testimony at the time and place fixed in the complaint
for the hearing.
(4)(A) Except as provided in subparagraph (B) of this paragraph, no
complaint shall be issued on any alleged unfair labor practice which
occurred more than 6 months before the filing of the charge with the
Authority.
(B) If the General Counsel determines that the person filing any charge was
prevented from filing the charge during the 6-month period referred to in
subparagraph (A) of this paragraph by reason of-
(i) any failure of the agency or labor organization against which the charge
is made to perform a duty owed to the person, or
(ii) any concealment which prevented discovery of the alleged unfair labor
practice during the 6-month period,
the General Counsel may issue a complaint based on the charge if the charge was
filed during the 6-month period beginning on the day of the discovery by the
person of the alleged unfair labor practice.
(5) The General Counsel may prescribe regulations providing for informal
methods by which the alleged unfair labor practice may be resolved prior to
the issuance of a complaint.
(6) The Authority (or any member thereof or any individual employed by the
Authority and designated for such purpose) shall conduct a hearing on the
complaint not earlier than 5 days after the date on which the complaint is
served. In the discretion of the individual or individuals conducting the
hearing, any person involved may be allowed to intervene in the hearing and
to present testimony. Any such hearing shall, to the extent practicable, be
conducted in accordance with the provisions of subchapter II of chapter 5 of
this title, except that the parties shall not be bound by rules of evidence,
whether statutory, common law, or adopted by a court. A transcript shall be
kept of the hearing. After such a hearing the Authority, in its discretion,
may upon notice receive further evidence or hear argument.
(7) If the Authority (or any member thereof or any individual employed by
the Authority and designated for such purpose) determines after any hearing
on a complaint under paragraph (5) of this subsection that the preponderance
of the evidence received demonstrates that the agency or labor organization
named in the complaint has engaged in or
§ 7118. Prevention of unfair labor practices (Continued):
is engaging in an unfair labor practice, then the individual or individuals
conducting the hearing shall state in writing their findings of fact and shall
issue and cause to be served on the agency or labor organization an order-
(A) to cease and desist from any such unfair labor practice in which the
agency or labor organization is engaged;
(B) requiring the parties to renegotiate a collective bargaining agreement
in accordance with the order of the Authority and requiring that the
agreement, as amended, be given retroactive effect;
(C) requiring reinstatement of an employee with backpay in accordance with
section 5596 of this title; or
(D) including any combination of the actions described in subparagraphs (A)
through (C) of this paragraph or such other action as will carry out the
purpose of this chapter.
If any such order requires reinstatement of any employee with backpay, backpay
may be required of the agency (as provided in section 5596 of this title) or of
the labor organization, as the case may be, which is found to have engaged in
the unfair labor practice involved.
(8) If the individual or individuals conducting the hearing determine that
the preponderance of the evidence received fails to demonstrate that the
agency or labor organization named in the complaint has engaged in or is
engaging in an unfair labor practice, the individual or individuals shall
state in writing their findings of fact and shall issue an order dismissing
the complaint.
(b) In connection with any matter before the Authority in any proceeding
under this section, the Authority may request, in accordance with the
provisions of section 7105(i) of this title, from the Director of the Office
of Personnel Management an advisory opinion concerning the proper
interpretation of rules, regulations, or other policy directives issued by
the Office of Personnel Management.
§ 7123. Judicial review; enforcement
(a) Any person aggrieved by any final order of the Authority other than an
order under-
(1) section 7122 of this title (involving an award by an arbitrator), unless
the order involves an unfair labor practice under section 7118 of this
title, or
(2) section 7112 of this title (involving an appropriate unit
determination),
may, during the 60-day period beginning on the date on which the order was
issued, institute an action for judicial review of the Authority's order in the
United States court of appeals in the circuit in which the person resides or
transacts business or in the United States Court of Appeals for the District of
Columbia.
(b) The Authority may petition any appropriate United States court of
appeals for the enforcement of any order of the Authority and for
appropriate temporary relief or restraining order.
(c) Upon the filing of a petition under subsection (a) of this section for
judicial review or under subsection (b) of this section for enforcement, the
Authority shall file in the court the record in the proceedings, as provided
in section 2112 of title 28. Upon the filing of the petition, the court
shall cause notice thereof to be served to the parties involved, and
thereupon shall have jurisdiction of the proceeding and of the question
determined therein and may grant any temporary relief (including a temporary
restraining order) it considers just and proper, and may make and enter a
decree affirming and enforcing, modifying and enforcing as so modified, or
setting aside in whole or in part the order of the Authority. The filing of
a petition under subsection (a) or (b) of this section shall not operate as
a stay of the Authority's order unless the court specifically orders the
stay. Review of the Authority's order shall be on the record in accordance
with section 706 of this title. No objection that has not been urged before
the Authority, or its designee, shall be considered by the court, unless the
failure or neglect to urge the objection is excused because of extraordinary
circumstances. The findings of the Authority with respect to questions of
fact, if supported by substantial evidence on the record considered as a
whole, shall be conclusive. If any person applies to the court for leave to
adduce additional evidence and shows to the satisfaction of the court that
the additional evidence is material and that there were reasonable grounds
for the failure to adduce the evidence in the hearing before the Authority,
or its designee, the court may order the additional evidence to be taken
before the Authority, or its designee, and to be made a part of the record.
The Authority may modify its findings as to the facts, or make new findings
by reason of additional evidence so taken and filed. The Authority shall
file its modified or new findings, which, with respect to questions of fact,
if supported by substantial evidence on the record considered as a whole,
shall be conclusive. The Authority shall file its recommendations, if any,
for the modification or setting aside of its original order. Upon the filing
of the record with the court, the jurisdiction of the court shall be
exclusive and its judgment and decree shall be final, except that the
judgment and decree shall be subject to review by the Supreme Court of the
United States upon writ of certiorari or certification as provided in
section 1254 of title 28.
(d) The Authority may, upon issuance of a complaint as provided in section
7118 of this title charging that any person has engaged in or is engaging in
an unfair labor practice,
§ 7123. Judicial review; enforcement (Continued):
petition any United States district court within any district in which the
unfair labor practice in question is alleged to have occurred or in which such
person resides or transacts business for appropriate temporary relief (including
a restraining order). Upon the filing of the petition, the court shall cause
notice thereof to be served upon the person, and thereupon shall have
jurisdiction to grant any temporary relief (including a temporary restraining
order) it considers just and proper. A court shall not grant any temporary
relief under this section if it would interfere with the ability of the agency
to carry out its essential functions or if the Authority fails to establish
probable cause that an unfair labor practice is being committed.
[1] Pertinent statutory provisions are set forth in Addendum A to this
brief.
[2] "JA" references are to the Joint Appendix filed with the union's
brief.
[3] Placement on home duty meant that the officer was restricted to his
home during normal work hours, with full pay, while the investigation took
place. No disciplinary action against the officer followed the investigation.
[4] The arbitration hearing scheduled for August 4 and 5, 1993 was
apparently postponed (JA 7 n.5). Nothing in the record indicates that it has
ever been held.
[5] The Penitentiary referred a subsequent request dated August 19, 1993,
to the OIA (JA 61). OIA responded by informing the union that the request must
be processed under the Freedom of Information Act (FOIA) (JA 63). Local 2343
filed a FOIA request. The record does not contain any response to the FOIA
request.
[6] Although the Judge recommended dismissal of the complaint on these
grounds, he also expressly rejected the Penitentiary's arguments that it need
not disclose the information because the union's grievance was not arbitrable
and that disclosure was barred by the FOIA (JA 33-34). In light of the
Authority's disposition of the case, these matters were not addressed further
and are not before the Court (JA 18 n.14).
[7] Member Wasserman dissented, stating that he would have found that the
union had established a particularized need for the requested information (JA
19-26).
[8] The Fifth Circuit has also adopted the "particularized need" approach.
U.S. Dep't of Justice v. FLRA, 991 F.2d 285, 290-91 and n.3 (5th Cir. 1993)
(Justice v. FLRA).
[9] Though the grievance does not identify Officer Francis as the employee
placed on home duty, it is reasonable to assume that he was the officer to whom
the union was referring.
[10] Thus the union's contention (Br. at 22) that the Penitentiary was
aware that the grievance concerned not only Baptiste's release into the prison
population but also "the events that occurred in the aftermath of that decision,
including the placement of Officer Francis on home duty[,]" is belied by the
record. Further, there is nothing in the record to indicate that after the
Penitentiary's response the union attempted to clarify the scope of the
grievance.
[11] At the hearing before the ALJ, the union representative testified that
there were two issues in the grievance, namely the safety and health issue, and
the fact that Officer Francis was put on home-duty status (JA 93). However,
even if that was the union's subjective intent, such an intent was neither
conveyed during the processing of the grievance nor apparent to the
Penitentiary. The Penitentiary properly relied on the presentation of the
grievance provided by the union at the time the grievance was filed. As the
Authority has properly held, an information reques 
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