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American Federation of Government Employees, Local 2343, Petitioner v. Federal Labor Relations Authority, Respondent

American Federation of Government Employees Local 2343 v. Federal Labor Relations Authority

United States Court of Appeals


Argued March 6, 1998 Decided May 29, 1998

No. 97-1355

American Federation of Government Employees, Local 2343,



Federal Labor Relations Authority,


On Petition for Review of an Order of the

Federal Labor Relations Authority

Judith D. Galat argued the cause for petitioner. With her

on the briefs was Mark D. Roth. Charles A. Hobbie entered

an appearance.

David M. Smith, Solicitor, Federal Labor Relations Au-

thority, argued the cause for respondent. With him on the

brief was James F. Blandford, Attorney. William R. Tobey,

Deputy Solicitor, and William E. Persina, Attorney, entered


Before: Randolph, Rogers and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Tatel.

Tatel, Circuit Judge: After a government employer re-

fused to provide documents requested by a union in connec-

tion with a pending grievance, the Federal Labor Relations

Authority dismissed the union's unfair labor practice com-

plaint, finding that the union failed to articulate "particular-

ized need" for the documents. Because the Authority reason-

ably applied the appropriate legal standard, we deny the

union's petition for review.


Collective bargaining and labor relations in the federal

government are governed by the Federal Service Labor-

Management Relations Statute, Pub. L. No. 95-454, 701, 92

Stat. 1191-1216 (1978) (codified as amended at 5 U.S.C.

7101-7135 (1994 & Supp. II 1996)). That statute autho-

rizes a labor organization accorded exclusive recognition for a

unit of employees to act as the unit's exclusive representative,

5 U.S.C. 7114(a)(1), and to participate in certain formal

discussions between the employer and employees in the unit,

id. 7114(a)(2). The statute requires employers and exclu-

sive representatives to "meet and negotiate in good faith for

the purposes of arriving at a collective bargaining agree-

ment." Id. 7114(a)(4). Under the statute, collective bar-

gaining agreements must establish procedures for the settle-

ment of grievances, id. 7121(a)(1), including arbitration, id.

7121(b)(1)(C)(iii). Central to this case, section 7114(b)(4) of

the statute requires agencies, as part of their obligation to

negotiate in good faith, to provide exclusive representatives

upon request with information:

(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 negotia-

tion of subjects within the scope of collective bar-

gaining; and

(C) which does not constitute guidance, advice, counsel,

or training provided for management officials or

supervisors, relating to collective bargaining....

Id. 7114(b)(4)(A)-(C).

Interpreting section 7114(b)(4)(B), this court requires that

unions demonstrate "particularized need" for information

they seek. Department of the Air Force, Scott Air Force

Base v. FLRA, 104 F.3d 1396, 1400 (D.C. Cir. 1997) (citing

NLRB v. FLRA, 952 F.2d 523, 531-32 (D.C. Cir. 1992)). In

response to a union request for information, we require the

employer to balance the union's particularized need against

its own countervailing anti-disclosure interest. U.S. Dep't of

Justice, Bureau of Prisons, Allenwood Fed. Prison Camp v.

FLRA, 988 F.2d 1267, 1270 (D.C. Cir. 1993). Applying the

"particularized need" standard, the Authority requires a un-

ion to "articulat[e], with specificity, why it needs the request-

ed 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 Stat-

ute." IRS, Wash., D.C., and IRS, Kansas City Serv. Ctr.,

Kansas City, Mo., 50 F.L.R.A. 661, 669 (1995). Because

enabling the employer to weigh its privacy interests against

the union's disclosure interests is one of the purposes of the

articulation requirement, the union ordinarily may not rely

upon conclusory assertions of need. See Allenwood Fed.

Prison Camp, 988 F.2d at 1271; IRS, Kansas City, 50

F.L.R.A. at 670.

This case arises from a February 1993 disturbance in a

federal penitentiary in Marion, Illinois. Immediately after

correctional officers released an inmate named Baptiste from

segregated confinement into the prison recreation area, Bap-

tiste "squared off" to fight another inmate, causing several

officers--one of whom was injured in the incident--to subdue

Baptiste and return him to the segregation unit. Afterwards,

a supervisor accused Officer Aubrey Francis, one of the

officers who removed Baptiste, of using excessive force.

When the matter was referred to the Bureau of Prison's

Office of Internal Affairs, Francis was placed on "home duty"

for the duration of the investigation.

The American Federation of Government Employees,

AFL-CIO, Local 2343 filed a grievance alleging that by

releasing an inmate with known violent tendencies into the

general prison population, the penitentiary violated the collec-

tive bargaining agreement's health and safety provision.

Seeking a complete investigation of all supervisors involved in

the incident, the grievance accused the penitentiary of:

a systematic and calculated effort on the part of the

above mentioned supervisors to violate the civil rights of

these two inmates and force staff into a position of

having to fight an inmate when there was no need.

Because of this effort on these individuals [sic] part one

Officer is at home on "home duty" because of a memo

written by a supervisor and one Officer is hurt and may

never work again trying to transport Baptiste back to 1


Asserting that it had legitimate reasons for releasing Bap-

tiste, the penitentiary denied the grievance. The Union then

invoked the collective bargaining agreement's arbitration


Preparing for arbitration, the Union asked the penitentiary

for all materials in its possession relating to the Baptiste

incident, saying only that it needed the information "to pre-

pare the case for arbitration." When the penitentiary failed

to respond, the Union made a second request, this time

invoking section 7114(b)(4) and stating that it needed the

information to "effectively carry out its representational obli-

gation in processing of a grievance (in this case the arbitra-

tional hearing)" because "[m]anagement has this information

to present during the arbitration and the Union needs this

same information so it may effectively present its case." The

penitentiary denied the request, concluding that the Union

had failed to articulate particularized need since "none of the

allegations of staff misconduct were substantiated by the

investigation report you are requesting." The Union then

filed an unfair labor practice charge with the Authority.

Reviewing in camera two OIA reports--one concerning the

Francis investigation and the other an allegation that a

correctional officer made a false statement during the investi-

gation--the administrative law judge found that because both

reports included information supporting the Union's claim

that correctional officers knew of Baptiste's violent tenden-

cies, the information was "necessary" for purposes of section

7114(b)(4)(B). Because the ALJ also found that the Union

failed to establish "particularized need" for the documents,

however, he concluded that the penitentiary's refusal to fur-

nish them did not violate the statute.

Over the dissent of one member, the Authority adopted the

ALJ's conclusion. Characterizing as "conclusory" the Union's

claim that it "needed the information to prepare for arbitra-

tion of its previously filed grievance," the Authority found

that the Union failed to articulate particularized need for the

documents. U.S. Dep't of Justice, Fed. Bureau of Prisons,

U.S. Penitentiary, Marion, Ill., 52 F.L.R.A. 1195, 1202

(1997). The Authority then examined the grievance itself to

decide whether, notwithstanding the Union's failure to articu-

late particularized need, the penitentiary could have made a

reasoned judgment about its obligation to disclose the infor-

mation. Acknowledging that the Union claimed at the hear-

ing before the ALJ that it was grieving both whether Francis

was wrongly placed on home duty and whether correctional

officials created a safety risk by releasing Baptiste, the

Authority concluded, based on its reading of the original

grievance--the only document the agency had before it when

it rejected the Union's request--that the home duty issue

"was not one that the [penitentiary] had reason to know was

part of the arbitration for which the Union requested infor-

mation." Id. at 1203. Also finding that "the Union never

explained to the [penitentiary] why it needed the information

developed by the OIA investigation of [Francis] in order to

show that the inmate's release adversely affected health and

safety," id., the Authority ruled that the penitentiary had not

committed an unfair labor practice.

The Union now petitions for review of the Authority's

decision. Reviewing Authority orders in accordance with

section 10(e) of the Administrative Procedure Act, 5 U.S.C.

706 (1994); see id. 7123(c), we uphold its determinations

unless they are "arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law." Id. 706(2)(A).

Our review is "narrow." See Overseas Educ. Ass'n, Inc. v.

FLRA, 858 F.2d 769, 771 (D.C. Cir. 1988). As long as the

Authority's factual findings are supported by "substantial

evidence on the record considered as a whole," they are

"conclusive." 5 U.S.C. 7123(c).


Because the Authority's decision turned in no small part

upon its interpretation of the scope of the Union's grievance,

we must first consider whether the Authority erred in finding

that the grievance presented only the health and safety issue

and not whether Francis was wrongly placed on home duty.

Although the parties disagree about the proper standard of

review--the Union argues that our review is de novo while

the Authority urges us to review for substantial evidence--we

need not resolve that issue because we conclude that under

any standard of review the Authority got it right.

From the plain language of the grievance, we think it

unmistakable that the Union complained only about the safety

consequences of releasing Baptiste, not about placing Officer

Francis on home duty. Not only does the entire grievance

focus on the decision to release Baptiste, but the grievance

never alleges that placing Francis on home duty was improp-

er. It mentioned Francis only to illustrate that Baptiste's

release had unfortunate consequences. To be sure, the Union

later claimed at the hearing before the ALJ that it was

grieving the Francis issue. At the time the penitentiary

decided against delivering the documents, however, it had

before it only the Union's written grievance. It therefore had

notice only of the Union's intent to grieve the health and

safety issue.

The question, then, is whether the Authority erred by

finding that the Union failed sufficiently to articulate the

connection between the information it wanted and its interest

in grieving the health and safety issue. Conceding that it

told the penitentiary no more than that it needed the informa-

tion to prepare for arbitration, the Union argues that this

suffices to satisfy the particularized need test because the

connection between the information and the grievance is

"self-evident." There may well be cases where the connec-

tion between the information a union seeks and the grievance

is so clear that the union's need is self-evident. That might

have been the case here if the reports at issue were entitled

"Health and Safety Effects of the Penitentiary's Decision to

Release Baptiste into the General Prison Population." But

the reports in this case concerned events at least one step

removed from the decision to release Baptiste. The reports

related only to Officer Francis's activities on the day of the

incident and an alleged false statement made in connection

with the Francis investigation. Under these circumstances,

the Authority reasonably concluded that the Union's need for

the documents was not self-evident. The Authority requires

unions to articulate particularized need to ensure that in

cases like this, where the documents sought are not obviously

relevant to the subject of the grievance, the employer has

sufficient information about exactly why the union needs the

information in order to weigh the union's interest against any

countervailing interest the employer might have in privacy

and non-disclosure. Because the reports the Union wants in

this case could contain all sorts of material--some of which

the Union may need but some of which it may not--merely

stating that it needs the reports to prepare for arbitration

does not give the employer sufficient information to weigh the

competing interests in any meaningful way.

Relying on NLRB v. FLRA and Scott, the Union argues

that where, as here, the requested documents discuss a

specific incident about which the Union has filed a grievance,

particularized need is automatically established. The Union

points to our statements in NLRB that a union "may" meet

the particularized need standard when it has a grievable

complaint covering information regarding agency action

against an employee and that "disclosure normally should

obtain" if a duty imposed by statute or contract with respect

to predecisional deliberation "ground[s] a grievable claim of

right in the employee or union," NLRB v. FLRA, 952 F.2d at

532-33. Not only does nothing in NLRB hold that the

existence of a grievance always suffices to establish particu-

larized need, but in subsequent decisions, both this court and

the Authority required unions to "articulate" particularized

need. See Allenwood Fed. Prison Camp, 988 F.2d at 1271;

IRS, Kansas City, 50 F.L.R.A. at 669-70. 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 informa-

tion in connection with a grievance--but also that unions

explain with some specificity why they need the information.

Nor does Scott support the Union's argument. Seeking a

disciplinary letter issued by the base to a supervisor who

allegedly struck an employee, the union in that case went well

beyond simply saying that the letter concerned the events

involved in the grievance. It articulated a specific reason for

needing the letter--to know whether (and if so how) the base

had already disciplined the supervisor so it could determine

whether to pursue arbitration. See Scott, 104 F.3d at 1400-

01; Department of the Air Force, Scott Air Force Base, Ill.,

51 F.L.R.A. 675, 677 (1995); see also Department of Justice,

INS, N. Region, Twin Cities, Minn. v. FLRA, No. 97-1388,

slip op. at 9 (D.C. Cir. May 29, 1998) (finding that union met

need test by asserting it needed documents to compare

discipline that employee had received with discipline received

by other employees committing similar offenses).

The Union argues that the Authority's application of the

particularized need test requires it to predict the contents of

documents to which it has not yet had access, as well as to

reveal its strategy for the upcoming arbitration. We share

this concern. The Authority may not, as it clearly recognizes,

see IRS, Kansas City, 50 F.L.R.A. at 670 n.13, apply the

particularized need test to ask unions the impossible--to

describe documents they have not seen--or to require unions

to reveal so much about their need for the information that

employers will enjoy an unfair advantage at arbitration. In

this case, the Authority did neither. As we read the Authori-

ty's decision, the Union could have satisfied its obligation to

articulate particularized need merely by saying that it needed

the information to determine whether correctional officers

knew about Baptiste's violent tendencies. Such a statement

would neither require knowledge of the documents nor reveal

strategic information.

We recognize that the particularized need test asks unions

to walk a fine line between saying too little and saying too

much. While we emphasize here that the Authority must not

require unions to say too much, we conclude that the Authori-

ty committed no error by finding that, in this case, the Union

said too little.

The petition for review is denied.

So ordered.