[ v51 p545 ]
51:0545(49)CA
The decision of the Authority follows:
51 FLRA No. 49
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_____
DEPARTMENT OF JUSTICE
UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE
UNITED STATES BORDER PATROL
DALLAS, TEXAS
(Respondent)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
AFL-CIO
NATIONAL BORDER PATROL COUNCIL
(Charging Party/Union)
6-CA-90117
(41 FLRA 137 (1991))
(46 FLRA 295 (1992))
_____
DECISION AND ORDER ON REMAND
November 30, 1995
_____
Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.
I. Statement of the Case
This case is before the Authority pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit. Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, Dallas, Texas v. FLRA, No. 91-1371 (D.C. Cir. Jul. 31, 1992) (order) (DOJ v. FLRA). After the remand from the court, the Authority remanded the complaint to the Judge, Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, Dallas, Texas, 46 FLRA 295 (1992) (Border Patrol II), and a hearing was held before the Judge. The complaint alleges that the Respondent violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to provide the Union with memoranda relating to the Respondent's policy governing disciplinary and adverse actions.
It is the Judge's Decision on remand, wherein the Judge concluded that the Respondent violated the Statute by failing to provide the Union with the requested memoranda, which is now before the Authority pursuant to exceptions filed by the Respondent. The General Counsel filed an opposition to the Respondent's exceptions.(1)
In its initial decision in this case, the Authority concluded that the Respondent violated the Statute by refusing to provide the Union with the requested memoranda. Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, Dallas, Texas, 41 FLRA 137 (1991) (Border Patrol I). The Authority found that the memoranda did not constitute guidance, advice, counsel, or training provided for management officials or supervisors ("intramanagement guidance"), relating to collective bargaining within the meaning of section 7114(b)(4)(C), and that the requested information "was necessary for the Union to effectively represent the grievants" and "necessary for the Union to carry out its representational function." Id. at 141.
For the following reasons, we find that the requested memoranda are not necessary, within the meaning of section 7114(b)(4) of the Statute. Therefore, we dismiss the complaint.
II. Judge's Decision
The facts are set forth in the attached Judge's decision and are only briefly summarized here.
In connection with the processing of grievances concerning the suspension of three employees, the Union requested, under section 7114(b)(4) of the Statute, three memoranda that related to the Respondent's policy governing disciplinary and adverse actions. In requesting the memoranda, the Union stated:
This material is considered relevant as there are several [a]dverse [a]ction cases awaiting [a]rbitration in which one of the issues raised was disparate treatment and it is hoped that the aforementioned material will aid us in clarifying and possibly resolving these issues prior to [a]rbitration.
This material is considered necessary because, in order for the Union to provide adequate and meaningful representation to the bargaining unit members, it must be cognizant of the policies under which [m]anagement operates.
General Counsel's Exhibit 6.
The Respondent denied the Union's request on the basis that the information constituted guidance to management officials and supervisors that was exempt from disclosure under section 7114(b)(4)(C) of the Statute.
The Judge concluded that the requested memoranda were "necessary" within the meaning of section 7114(b)(4) of the Statute. In response to the General Counsel's argument that the Union needed the memoranda to show that the Respondent had a stated policy of requiring management "to administer like punishment for like offenses" and was not complying with this policy, General Counsel's Post-hearing Brief at 3, the Judge found that the Union representative who requested the memoranda "admitted [at the hearing] that he didn't need the memoranda to show disparate treatment" and "that he knew that the policy of like penalties for like offenses was . . . not in the [requested] memoranda . . . ." Judge's Decision at 5. Nonetheless, the Judge found that the Union established a "particularized need" for the requested information within the meaning of National Labor Relations Board v. FLRA, 952 F.2d 523 (D.C. Cir. 1992) (NLRB v. FLRA) "because the data would have been useful to the Union, first, in knowing the policies management operates under in disciplinary cases and second, to determine whether management has complied with its own policies as a failure to comply could indicate a procedural error." Id. at 20 (emphasis added). The Judge determined that the requested memoranda "would permit the Union to determine whether a case had been conducted in accordance with Respondent's prescribed procedures and would provide a basis for alleging procedural error[.]" Id. at 21. The Judge found that the other requirements of section 7114(b)(4) were met and determined that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute.
III. Positions of the Parties
A. Respondent's Exceptions
The Respondent argues that the Judge erred in applying a "usefulness" standard in this case because the court found in NLRB v. FLRA, 952 F.2d at 529 and U.S. Department of Justice v. FLRA, 988 F.2d 1267 (D.C. Cir. 1993) "that the application of a 'usefulness' standard in section 7114(b)(4) cases was directly inconsistent with the rule laid out in NLRB." Exceptions at 9. The Respondent contends that the Judge's conclusion that the requested information "was even 'useful,' not to mention 'necessary,' is directly contradicted by his own . . . findings of fact." Id. at 12. The Respondent also asserts that it was not bound to follow the instructions in the requested material because it was non-mandatory guidance and advice and "the failure to follow [such] guidance and advice never can constitute a 'procedural error.'" Id. at 13 (emphasis in original). The Respondent asserts that the Union has failed to demonstrate a particularized need for the requested information under the standard set out in NLRB v. FLRA.
B. General Counsel's Opposition
The General Counsel argues that the Respondent's exceptions should be rejected because the "evidence established that the Union had a clear, articulated, particularized need for the memoranda requested to assist and represent three grievants in connection with proposed disciplinary action as well as to police" the parties' agreement. Id. at 10.
IV. Analysis and Conclusions
For the following reasons, we find that the requested memoranda are not necessary within the meaning of section 7114(b)(4) of the Statute, and that the Respondent's failure to furnish the memoranda to the Union did not violate the Statute.
Recently, the Authority issued Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Kansas City Service Center, Kansas City, Missouri, 50 FLRA 661 (1995) (Member Talkin concurring) (IRS Kansas City), which set forth the analysis for determining whether information is "necessary" under section 7114(b)(4) of the Statute. We held that a union making a request under that section must establish a particularized need for the requested information by articulating, with specificity, why it needs that information, including the uses to which the information will be put, and the connection between those uses and the union's representational responsibilities under the Statute. We also stated that a union's burden will not be satisfied merely by showing that requested information is or would be relevant or useful, but that the union must demonstrate that the information is "'required in order for the union adequately to represent its members.'" IRS Kansas City, 50 FLRA at 670 (quoting Department of Justice v. FLRA, 991 F.2d 285, 290 (5th Cir. 1993)). The union's responsibility for articulating and explaining its interests extends to more than a conclusory or bare assertion; among other things, the request for information must be sufficient to permit an agency to make a reasoned judgment as to whether the information must be disclosed under the Statute.
As for the agency's responsibilities, where the requested information constitutes documents containing guidance, advice, counsel, or training for management officials ("intramanagement guidance"), the Authority has accepted the court's view, NLRB v. FLRA, 952 F.2d at 532, that an agency has presumptive anti-disclosure interests in such documents. IRS Kansas City, 50 FLRA at 670 (citing National Park Service, National Capital Region, United States Park Police, 48 FLRA 1151, 1160 (1993) (Member Talkin concurring in part and dissenting in part) (National Park Service)).(2)
Where the parties are unable to agree on whether, or to what extent, requested information must be provided, we will find an unfair labor practice if a union has established a particularized need for the information and either: (1) the agency has not established a countervailing interest; or (2) the agency has established such an interest but it does not outweigh the union's demonstration of particularized need.
Applying the analytic framework of IRS Kansas City, we find that none of the three assertions of need advanced by the Union satisfies its burden of demonstrating that the information requested is required for it to adequately represent unit employees.
We focus first on the only specific reason asserted by the Union at the time of its request for the three memoranda: that it needed the information to assess whether the Respondent had disparately treated particular employees, as relevant to several adverse action cases awaiting arbitration. Our review of the record leads us to conclude that the Union has not established the requisite connection between the three memoranda and this asserted need. In this regard, the Judge found that "the memoranda requested provide no basis to evaluate disparate treatment of grievants and the Union, on rehearing, conceded that it did not need the data to show disparate treatment . . . ." Judge's Decision at 8 (citing rehearing transcript at 71). See also id. at 5 (the Union representative "admitted that he didn't need the memoranda to show disparate treatment").
Indeed, in its opposition, the General Counsel does not dispute the Judge's finding on this point. Rather, the General Counsel argues that "the memoranda is [sic] the starting point for obtaining other information which could show disparate treatment." General Counsel's Opposition at 3. According to the General Counsel, if the Union learned from a review of the memoranda that management was required to maintain a file of disciplinary and adverse actions that was indexed by offense, the Union would request a copy of the entire file or at least those portions dealing with the same offense as that with which the three grievants had been charged. The General Counsel further asserts that if the file entries did not contain the amount of punishment imposed on the employee, the Union would request copies of the actual disciplinary/adverse actions named in the file. Additionally, the General Counsel contends that if the Respondent denied that it maintained such a file, the Union would grieve the Respondent's failure to comply with its own internal policy. In addition to being attenuated, this asserted trail to information needed to evaluate the disparate treatment concern ignores the Judge's finding (Judge's Decision at 7), which is supported by the record, that the memoranda do not establish any requirement but only guidance. Therefore, there is no persuasive connection between the Union's asserted specific need for the memoranda and its ability to demonstrate disparate treatment.
The Union's second reason set forth at the time of its request--to "provide adequate and meaningful representation to the bargaining unit members" (General Counsel's Exhibit 6)--is insufficient because it lacks specificity. It is possible to construe this reason as having been amplified during the course of the litigation to refer more specifically to the Union's need to determine whether the Respondent was complying with its policy of "like penalties for like offenses." Judge's Decision at 5. Here again, however, the testimony of the Union representative demonstrates, as the Judge found, that the Union representative "knew that the policy of like penalties for like offenses was contained in [a Department of Justice Administrative Manual] and not in the memoranda . . . which he requested." Id. (citing rehearing transcript at 66, 71). Accordingly, the second reason asserted by the Union does not demonstrate a need for the requested memoranda.
The only additional "need" asserted by the Union as a reason for requesting the three memoranda was one raised at the hearing; namely, to determine whether the Respondent had failed to comply with a policy and thereby committed "a procedural violation" of the parties' collective bargaining agreement. Id. Even assuming, without deciding, that this need was articulated in a timely fashion, the record does not establish any connection between the three memoranda and procedures managers were required to follow in disciplining employees because, as found previously, the memoranda do not establish any requirement for managers to follow when disciplining employees.
Accordingly, the Union has failed to meet its burden of articulating with specificity the reasons for which it needed the requested memoranda and demonstrating that the information was required in order for the Union adequately to represent unit employees. That the requested information "would have been useful to the Union . . . in knowing the policies management operates under in disciplinary cases and . . . to determine whether management has complied with its own policies as a failure to comply could indicate a procedural error[,]" Judge's Decision at 20, does not establish that the Union has satisfied its burden, because a showing of usefulness is insufficient to establish a particularized need. See, for example, U.S. Equal Employment Opportunity Commission, 51 FLRA No. 26 (1995), slip op. at 11.
In sum, the Union did not establish a particularized need for the requested information.(3) As such, the Respondent did not violate the Statute by refusing to give the Union the memoranda because the requested information is not necessary within the meaning of section 7114(b)(4) of the Statute.(4)
V. Order
The complaint is dismissed.
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
| DEPARTMENT OF JUSTICE,
UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, UNITED STATES BORDER PATROL, DALLAS, TEXAS Respondent |
|
| and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, NATIONAL BORDER PATROL COUNCIL Charging Party |
|
[41 FLRA 137 (1991) No. 91-1371,
U.S. Court of Appeals for D.C.
Circuit,
July 31, 1992, case remanded for
reconsideration in light of
NLRB
v. FLRA, 952 F.2d 523 (D.C. Cir. 1992)
46 FLRA No.
26, 46 FLRA 295 (1992)
(Decisions and Order on Remand)]
Scott D. Cooper, Esquire
William Owen, Esquire
On Brief
For
the Respondent
Mr. Robert M. Smith
For the Charging Party
Joseph T. Merli, Esquire
For the General Counsel
Before: WILLIAM B. DEVANEY
Administrative Law Judge
DECISION
Statement of the Case
This is an information case involving data constituting guidance, advise, counsel, or training provided for management officials or supervisors; but the Authority held that the data did not relate to collective bargaining within the meaning of § 7114(b)(4)(C) of the Statute(1) which, it held, exempts from disclosure only such data "relating specifically to the collective bargaining process" (41 FLRA at 142). The United States Court of Appeals for the District of Columbia Circuit remanded this case, ". . . to the Federal Labor Relations Authority to reconsider its decision in light of this court's holding in National Labor Relations Board v. Federal Labor Relations Authority, 952 F.2d 523 (D.C. Cir. 1992)." (No. 91-1371, Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, Dallas, Texas, D.C. Cir., July 31, 1992). In its Decision and Order on Remand the Authority stated,
"Pursuant to the court's order in DOJ v. FLRA, we must reconsider the Authority's previous determination that the requested information is necessary, within the meaning of section 7114(b)(4)(B) of the Statute. In particular, we must reconsider that determination in light of the court's decision in NLRB v. FLRA concerning section 7114(b)(4)(B). NLRB v. FLRA, 952 F.2d at 531-34. The record before us is not sufficient to make the determination required by the court's remand. Accordingly, we will remand this case to the Judge for further processing. . . ." (46 FLRA at 296-297).
Pursuant to the Authority's Decision and Order on Remand of October 26, 1992, the hearing on remand was scheduled for December 25, 1992, in El Paso, Texas. By Order dated December 17, 1992, the hearing was rescheduled for February 8, 1993, in El Paso, Texas; and by Order dated January 12, 1993, the hearing was further rescheduled to February 9, 1993, and, on motion of the General Counsel, to which the other parties did not object, the place of hearing was changed from El Paso to McAllen, Texas, pursuant to which a hearing was duly held on February 9, 1993, in McAllen, Texas, before the undersigned.
All parties were represented at the hearing, were afforded full opportunity to be heard, to introduce evidence bearing on the issues involved, and were afforded the opportunity to present oral argument which each party waived. At the conclusion of the hearing, March 9, 1993, was fixed as the date for mailing post-hearing briefs, which time was subsequently extended, for good cause shown, to March 16, 1993. Respondent and General Counsel each timely mailed a brief(2), received on, or before, March 22, 1993, which have been carefully considered. On the basis of the entire record, I make the following findings and conclusions:
Findings
The facts developed in the first hearing are set forth in my initial decision at 41 FLRA at 148-150, and need not be repeated. The statement of facts herein will be limited to the February 9, 1993, hearing on remand. In my initial decision, I expressed uncertainty as to the acronym "COPER" (41 FLRA 149, n.3); but, upon inquiry, Mr. Smith clarified that "COPER" stands for Central Office Personnel (Tr. 2-30)(3) As noted in my initial decision, the Union had obtained a partial copy of Agency Memoranda, SR-P-381A, SR-71/85.2-P, SR-71/93.1P, specifically pages: 1-1, 1-2, 1-4, 1-5, 1-7 and 1-9 (41 FLRA at 149-150, 152). The missing pages, i.e., pages: 1-3, 1-6 and 1-8, were offered, and received, in camera, as Res. Exh. 1 (Tr. 69-70), as specifically noted in paragraph 8 of the initial decision (41 FLRA at 150). It was, of course, these Agency Memoranda in their entirety, with the most recent revisions, that the Union had requested and which Respondent had refused to furnish because the data requested, ". . . relating to policy governing disciplinary and adverse actions is guidance to managers and supervisors" and was ". . . denied under the provision of 5 U.S.C. 7114." (41 FLRA at 150).
1. Article 4 - Rights and Obligations, Section B of the parties' Agreement (Jt. Exh. 1) provides as follows:
"B. In the administration of all matters covered by the agreement, officials and employees are governed by existing or future laws and the regulations of appropriate authorities, including policies set forth in the Federal Personnel Manual; by published agency policies and regulations in existence at the time the agreement was approved; and by subsequently published agency policies and regulations required by law or by the regulations of appropriate authorities, or authorized by the terms of a controlling agreement at a higher agency level." (Jt. Exh. 1, Art. 4, Section B) (Emphasis supplied).
2. The Agreement, i.e., Joint Exhibit 1, was approved September 30, 1976; has long since expired by its terms (Tr. 2, 38-39); has not been renegotiated (Tr. 2-39); but the parties continue to honor its terms (Tr. 2-39).
3. Mr. Smith first asserted that it is the Union's job to ". . . police these other regulations, these other laws and regulations. . ." incorporated by Article 4, Section B (Tr. 2-39, 40); that it could file a grievance under Article 4B. if Respondent had violated its own policy (Tr. 2-40, 42, 51); but on cross-examination conceded that, because the earliest document requested by the Union was issued in 1978 (G.C. Exh. 7, Res. Exh. 2, Tr. 2-53) [I have verified that this is also true as to the "missing" pages which were issued: 1-3, 6/78; 1-6, 6/85; and 1-8, 4/89 (Res. Exh. 1)], nearly two years after the effective date of the Agreement and because nothing in the law requires that an index be maintained, Article 4B. does not apply (Tr. 2-54, 55) and, accordingly, nothing in the Agreement would permit a grievance for failing to maintain an index (Tr. 2-56).
4. In his request for the information, Mr. Smith had stated,
"This material is considered relevant as there are several Adverse Action cases awaiting Arbitration in which one of the issues raised was disparate treatment and it is hoped that the aforementioned material will aid us in clarifying and possibly resolving these issues prior to Arbitration.
"This material is considered necessary because, in order for the Union to provide adequate and meaningful representation to the bargaining unit members, it must be cognizant of the policies under which Management operates." (G.C. Exh. 6) (41 FLRA at 148-149).
Mr. Smith in his testimony emphasized, as he had at the initial hearing (41 FLRA at 149, par. 5), that the Union was concerned about disparate treatment (Tr. 2-22-25). He further stated that in his experience in the Border Patrol the letter "P" in the identification of the memoranda requested, e.g., "SR-P-381A", indicated policy (Tr. 2-28) and that at least page 1-2 and page 1-4 constituted policy rather than advice or guidance (Tr. 2-28, 32)(4), and if the Union could show a procedural violation, by failing to maintain an index, in violation of Article 4B., he could use such information to get a settlement (Tr. 2-34-37). On cross-examination, Mr. Smith admitted that he didn't need the memoranda to show disparate treatment but, rather,
"A What I needed was the memorandum to establish that there was, in fact, a policy, so that I could then ask for the -- or at least ask for the - probably a sanitized version of the indexing system. . . ." (Tr. 2-71).
Mr. Smith made it clear that he knew that the policy of like penalties for like offenses was contained in Administrative Manual (AM) 2235 and not in the memoranda issued by the Southern Region which he requested (Tr. 2-66, 71).
5. Mr. Smith stated that the Union previously had filed information requests for decisions involving the same offense and had received the requested information from Respondent (G.C. Exh. 5; Tr. 2-65-66).
6. Ms. Janice Marie Fauble, an employee-relations specialist for Respondent for 3 years and prior to that for 6 years an employee-relations assistant (Tr. 2-88), testified that the memoranda requested (G.C. Exh. 7; Res. Exh. 2) is maintained, ". . . in our adverse-action handbook, which is just information on guidance for supervisors and managers" (Tr. 2-91); that there has been no revision since 1986 (Tr. 2-91); that there is nothing in the document that would indicate disparate treatment; that the document contains no policy (Tr. 2-91); and that no one in the Southern Region of INS, indeed no one in INS, is empowered to make policy (Tr. 2-92), this being the exclusive province of the Department of Justice (Tr. 2-92) and the Department of Justice policy dealing with disparate treatment is contained in AM 2235 (Tr. 2-92).
Ms. Fauble further stated that page 1-4 (G.C. Exh. 7; Res. Exh. 2) is a "boilerplate form" designed for several agencies; that not everything on this form even pertains to the Southern Region (Tr. 2-94). She stated that INS does not maintain a file indexing personnel actions by reason (Tr. 2-94) and had never maintained such an index in the 9 years she had been in employee relations (Tr. 2-95). She explained that two index boxes are maintained: One is alphabetical by name of the employee (Tr. 2-95); and the other is by closed case number (Tr. 2-95). She stated that to locate disciplinary actions for assault, for example, would require a manual search of the card indexes; that the Union has made such requests and they have been provided the information requested (Tr. 2-96). Ms. Fauble emphasized that the memoranda requested; i.e., G.C. Exh. 7; Res. Exh. 2, is instructional information for supervisors and managers (Tr. 2-96) and stated that supervisors do not have to follow that guidance and advice (Tr. 2-106).
Conclusions
In my initial decision, I held,
"There is no question that the data requested by the Union constituted, '. . . guidance, advice, counsel, or training provided for management officials or supervisors. . . .' within the meaning of § 14(b)(4)(C) of the Statute." (41 FLRA at 150)
In its decision, the Authority did not disagree or question the conclusion that the data constituted "guidance, advice, counsel, or training" but, rather that it did not concern guidance, advice or counsel relating specifically to the labor-management process. Thus, the Authority stated, in pertinent part, as follows:
. . . we find that the memoranda withheld by the Respondent did not concern guidance, advice, or counsel to management officials or supervisors concerning the handling of a grievance or any other matter relating to the labor-management process. Rather, the memoranda contained guidelines for managers and supervisors as to the procedures governing disciplinary and adverse actions. That is, the memoranda contained Agency personnel policies affecting the conditions of employment of unit employees." (41 FLRA at 142)
At the commencement of the hearing, I stated that I didn't believe that there was anything in the Authority's decision that indicated any doubt that the memoranda constituted advice and counsel. General Counsel responded, "And I agree with you. The way I understood reading it, they said they thought it was advice, guidance, and counsel also, but it was not related to collective bargaining." (Tr. 2-14). Nevertheless, Charging Party was allowed to present its position that the data requested was not guidance, advice or counsel, which consisted of the assertion that the use of terms such as "must be forwarded" and "will be reviewed" (Tr. 2-31-32) made compliance obligatory and, therefore, at least those portions were not guidance, advice and counsel because, ". . . guidance and advice and counsel means that the listener has the option of then making a decision as to what they are going to do." (Tr. 2-32) and, further, that, because designated "P" to signify policy, the memoranda are policy and policy is mandatory (Tr. 2-32).
I have given careful consideration to the Charging Party's contentions (in his Brief, General Counsel does not assert that the data was not guidance, advice or counsel) and conclude, again, that the memoranda in question were guidance, advice, counsel or training. Contrary to the opinion of the Charging Party, guidance, advice, counsel or training may be imperious and frequently is, e.g., "Open Other End"; "Do Not Enter"; "Do Not Complete Step 6 Until You Insert Part J Which Must Be Joined as Shown in Steps 9 and 10"; or, here ". . . a draft of the notice of proposal must be forwarded to the Regional Personnel Office. . . ." Nor does a mandatory instruction constitute a policy.(5) Even if "advice" or "counsel" implied only suggested action, "guidance" and "training" plainly do not. Accordingly, the memoranda do constitute guidance, advice, counsel, or training provided for management officials or supervisors.
As I found that the data requested was exempt from disclosure pursuant to § 14(b)(4)(C), it was unnecessary to decide, and in my initial decision I did not decide, whether the data was "necessary within the meaning of § 14(b)(4)(B)." Because the Authority found that the data requested was not exempt, it did find that the data was "necessary" within the meaning of § 14(b)(4)(B).(6) U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 37 FLRA 1310, 1320 (1990). While the memoranda requested provide no basis to evaluate disparate treatment of grievants and the Union, on rehearing, conceded that it did not need the data to show disparate treatment (Tr. 71), the necessity requirement of § 14(b)(4)(B) on the basis of the present record would have been satisfied because the data would have been useful to the Union, first, in knowing the policies management operates under in disciplinary cases and, second, to determine whether management had complied with its own policies as a failure to comply could indicate a procedural error which might facilitate a settlement (Tr. 2-36, 59-60, 61).
Although the Authority had found that the requested information was necessary for the Union to carry out its representational function, the United States Court of Appeals, as noted above, remanded this case, ". . . to the Federal Labor Relations Authority to reconsider its decision in light of this court's holding in National Labor Relations Board v. Federal Labor Relations Authority, 952 F.2d 523 (D.C. Cir. 1992)." (No. 91-1371, supra). In its Decision and Order on Remand, the Authority, as also noted above, stated, in part, that, "Pursuant to the Court's order . . . we must reconsider the Authority's previous determination that the requested information is necessary, within the meaning of section 7114(b)(4)(B) . . . In particular, we must reconsider that determination in light of . . . NLRB v. FLRA concerning section 7114(b)(4)(B). . . ." (46 FLRA at 296-297).
National Park Service, National Capital Region United States Park Police (hereinafter, "National Park Service"), Case Nos. 3-CA-60168, 3-CA-60182, 3-CA-60183, 3-CA-60288, OALJ 93-16, February 4, 1993, one of the consolidated case of National Labor Relations Board v. FLRA, 952 F.2d 523 (D.C. Cir. 1992)(7), involved the same legal question. Therein, in my decision on remand, I stated that,
"The Court, in NLRB v. FLRA, supra, upheld the Authority's construction of § 14(b)(4)(C) of the Statute, namely, that § 14(b)(4)(C) exempts from disclosure only guidance, advice, counsel, or training relating specifically to the collective bargaining process . . . I respectfully disagree and urge the Authority to reconsider its decision. . . ." (OALJ 93-16, p. 6)
For reasons set forth in my initial decision in National Park Service, 38 FLRA at 1050-1054; in my decision on remand therein, OALJ 93-16; in my initial decision herein, 41 FLRA at 150-153; and my decision on remand herein, I respectfully disagree with the decision herein and urge the Authority to reconsider its decision.
There is no indication that the Authority gave any consideration to § 32 of the Statute in reaching its decision on the construction of § 14(b)(4)C). § 32 provides, in relevant part, that,
"No subpena shall be issued under this section which requires the disclosure of intramanagement guidance, advice, counsel, or training within an agency. . . ." (5 U.S.C. §§ 7132)
I am fully aware that the Authority's subpoena power under § 32 is not quite the same as an agency's duty under § 14(b)(4) to furnish data; nevertheless, I submit that the unequivocal language of § 32, set forth above, shows the studied purpose and intent of Congress to protect from disclosure intramanagement guidance, advice and counsel which Congress, I believe, expressed with equally unequivocal language in § 14(b)(4)(C). The Court refers to § 32 in its n.6, 953 F.2d at 533; however, its dismissal of § 32 as "irrelevant to § 7114(b)(4)(C), because that subsection does not require disclosure of any data" is disingenuous and its statement that,
"Clearly § 7132 is irrelevant to § 7114(b)(4)(C), because that subsection does not require disclosure of any data. In this case, it is only § 7114(b)(4)(B) that requires disclosure, and then only with respect to matters necessary for discussion of subjects within the scope of collective bargaining.",
is an egregious misrepresentation. In truth, neither subsection (B) nor subsection (C) requires disclosure of anything. Rather, it is § 14(b)(4), and only § 14(b)(4), which requires that data be furnished. Thus, § 14(b)(4) provides:
"(b) The duty of an agency . . . shall include the obligation. --
. . .
"(4) in the case of an agency, to furnish . . . data-- . . ."
Subsections (A), (B) and (C), which follow, are each, limitations on the duty to furnish data, as follows:
"(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. . . ." (5 U.S.C. § 7114(b)(4)(A), (B) and (C)).
There are, therefore, three limitations set forth in subsections (A), (B), and (C)(8) on the duty to furnish data. Thus, § 14(b)(4) requires: the agency to furnish data to the extent not prohibited by law which [if it] is normally maintained; the agency to furnish data to the extent not prohibited by law which [if it] is reasonably available and necessary; and the agency to furnish data to the extent not prohibited by law which [if it] does not constitute guidance, advice, counsel, or training. The Statute simply can not properly be read to mean that § 14(b)(4)(B) requires disclosure but 14(b)(4)(C) does not require disclosure.
Because § 14(b)(4)(C) requires the agency to furnish data, to the extent not prohibited by law, which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining, § 32 is, I submit, wholly relevant. § 32, by using the word "intramanagement" to modify "guidance, advice, counsel, or training within an agency", states, in a "shorthand version", what is stated in § 14(b)(4)(C) as "guidance, advice, counsel, or training provided for management officials or supervisors". That is, "guidance, advice, counsel, or training provided for management officials or supervisors" means "intramanagement guidance, advice, counsel, or training within an agency" and vice versa. While the statement of the Court, that use of the requirement "necessary" in § 14(b)(4)(B) means that other data which is not "necessary" need not be furnished, is unassailable, i.e., as stated by the Court: "A statute that requires 'necessity' implicitly recognizes countervailing interests, because a 'need,' by definition, is an interest of particular strength and urgency. If only pro-disclosure interests were material to § 7114(b)(4)(B), the statutory factor of 'necessity' would be surplusage." (952 F.2d at 531). It is not correct, as the Court states in the concluding sentence of n.6, that "Documents that are strictly 'intramanagement' normally will not be discoverable under § 7114(b)(4)(B)." Rather, documents that are strictly intramanagement normally will not be discoverable under § 7114(b)(4)(C). There is nothing in the concept of "necessary" in subsection (B) that would make intramanagement documents not disclosable as intramanagement documents. To the contrary, it is subsection (C), and only subsection (C), which renders intramanagement guidance, advice, counsel, or training not disclosable.
The Court's expressed concerns either are non-existent or more appropriately should be addressed directly. For example, the Court referred to a counseling or warning about allegedly poor work performance and a confirming written evaluation in the employee's personnel file and then opined inter alia, that, "The union would need the information . . . to determine whether disciplinary action that has been taken is justified by the employee's record." (952 F.2d at 533). To be sure, the union would need such information, but it is not guidance, advice or counsel and would not be excluded from disclosure under subsection (C), as I specifically noted in National Park Service, 38 FLRA at 1053 (see, also, Judge Fenton's statement in National Weather Service, 30 FLRA at 142; and Judge Naimark's statement in National Labor Relations Board, 38 FLRA at 536). The Court referred to a grievable claim of right to the data and opined, that, "Where an employee has a right to a particular pre-decision, that 'guidance,' 'advice,' 'counsel' or 'training' is no longer 'intramanagement.' The decision is for the employee, not just for other agency officials. . . ." (NLRB v. FLRA, 952 F.2d n.6, 533). I do not believe it properly can be said that advice or counsel ceases to be advice or counsel, because the employee and/or the union has a contractual right to receive it, and, assuming that the agency was not required to furnish the data under § 14(b)(4)(C), violation of a contractual entitlement to the data might, directly, be enforced as a vitiation of the contractual obligation. National Treasury Employees Union, 46 FLRA No. 22, 46 FLRA 234, 245 (1992).
For the foregoing reasons, I urge that the construction of "relating to collective bargaining" in subsection (C) be reconsidered; that it be found at least as broad as "within the scope of collective bargaining" in subsection (B); and that the data withheld herein is exempt from production under § 14(b)(4)(C) of the Statute.
Nevertheless, I am constrained to follow the Authority's decision herein and obligated to follow the Court's decision and direction on remand. In each of the cases consolidated in NLRB v. FLRA, supra, and herein, the Authority had found that the information sought was "necessary" within the meaning of § 14(b)(4)(B) of the Statute and, while the Court in NLRB v. FLRA, supra, noted that under subsection (B), "A statute that requires 'necessity' implicitly recognizes countervailing interests. . . ." and "the requisite strength of the union's 'need' will depend on the intensity of countervailing interests" (id. at 531), as to subsection (C), the Court stated,
". . . management often has a legitimate interest in preserving for itself, alone, information on 'guidance,' 'advice,' 'counsel' or 'training' provided for management officials. This interest is most weighty with respect to matters relating to the process of collective bargaining, which explains the categorical exemption found in § 7114(b)(4)(C); but the interest also exists, albeit to a lesser degree, in connection with all such information pertaining to subjects within the scope of collective bargaining. . . .
". . . we hold that 'guidance,' 'advice,' 'counsel' or 'training' for management officials that is claimed to be necessary for the 'full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining' should be released upon union request only in those circumstances when the union has a particularized need for the information." (id. at 531-532) (Emphasis in the original).
The Court did not define "particularized need" but stated, inter alia,
". . . the contract may impose a duty on the agency regarding predecisional deliberation, and the duty may then ground a grievable claim of right in the employee or union. If so, disclosure normally should obtain." (id. at 532-533).(9)
As noted above, the Court in footnote 6 also stated:
". . . Where an employee has a right to a particular pre-decision, that 'guidance,' 'advice,' 'counsel' or 'training' is no longer 'intra-management.' The decision is for the employee, not just for other agency officials. . . ." (id. at 533, n.6) (Emphasis in the original).
APPLICATION OF PARTICULARIZED NEED TO THIS CASE
A. GENERAL
As noted above, the Court's statement that use of the requirement "necessary" in § 14(b)(4)(B) means that other data which is not "necessary" need not be furnished, is unassailable, i.e., as stated by the Court: ". . . 'necessity [under § 7114(b)(4)(B)] is a matter of degree.' FLRA v. U.S. Dep't of the Treasury, Fin. Management Serv., 884 F.2d 1446, 1449-50 (D.C. Cir. 1989) . . ., cert. denied, 493 U.S. 1055 . . . (1990) [footnote omitted]. A statute that requires 'necessity' implicitly recognizes counter-vailing interests, because a 'need,' by definition, is an interest of particular strength and urgency. If only pro-disclosure interests were material to § 7114(b)(4)(B), the statutory factor of 'necessity' would be surplusage." (952 F.2d at 531). The Authority has long recognized that while under § 14(b)(4)(B) data must be, ". . . necessary to enable the union to fulfill its representational responsi-bilities. . . .", U.S. Equal Employment Opportunity Commission, Washington, D.C., 20 FLRA 357 (1985), nevertheless,
". . . a union's mere assertion that it needs data to process a grievance does not automatically oblige the agency to supply such data. [footnote omitted] The duty to supply data under section 7114(b)(4) thus turns upon the nature of the request and the circumstances in each particular case. [footnote omitted] . . . a threshold issue is whether the data requested . . . is necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining." (id., at 358).
Moreover, that once it is determined that the data is "necessary" within the meaning of § 14(b)(4)(B) countervailing interests must be considered, as the Authority stated,
". . . Having made the determination that such data is 'necessary' . . . the Authority must decide whether disclosure of that data is nevertheless 'prohibited by law'(10) from disclosure . . . by the Privacy Act." (id., at 359).
See to like that: United States Department of Veterans Affairs, Regional Office, San Diego, California, 44 FLRA 312 (1992).
In short, the statutory factor of "necessity" in § 14(b)(4)(B) plainly means that it is not enough that the data requested is simply material or relevant; rather, it must be necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining. The countervailing interests implicit in a statutory requirement of "necessary" are those, and only those, showing, or purporting to show, the non-necessity of the data for the purposes of § 14(b)(4)(B). Once data is shown to be "necessary" within the meaning of § 14(b)(4)(B), then countervailing interests, such as the Privacy Act, must be considered; but such countervailing interests must be considered - not because of any relationship to "necessary" - but because they are incorporated into § 14(b)(4) by the limitation: "to the extent not prohibited by law" as Judge Ginsburg stated as noted in footnote 10.
The Court in NLRB v. FLRA, supra, first quoted, from Oil, Chemical and Atomic Workers Local Union No. 6-418 v. NLRB, 711 F.2d 348, 362-63 (D.C. Cir. 1983) and commented on the Court's holding, "'where . . . requested information is both relevant to a union's representational responsibilities and subject to an employer's legitimate confidentiality interest' the Board may 'balanc[e] . . . the parties' interests' in determining whether the employer breached its duty to bargain in refusing to disclose requested information" and then stated,
". . . Thus, the employer's interest in protecting the sanctity of information on 'guidance,' 'advice,' 'counsel' or 'training' for management officials must be weighed against a union claim of necessity under § 7114(b)(4)(B).
"In light of the foregoing considerations, we hold that 'guidance,' 'advice,' 'counsel' or 'training' for management officials that is claimed to be necessary for the 'full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining' should be released upon union request only in those circum-stances when the union has a particularized need for the information." (NLRB v. FLRA at 532) (Emphasis supplied).
I am aware that different panels of the Court, first in Department of the Air Force, Scott Air Force Base v. FLRA, 956 F.2d 1223 (D.C. Cir. 1992) (hereinafter, "Scott AFB") and more recently in United States Department of Justice, Bureau of Prisons, Allenwood Federal Prison Camp, Montgomery, Pennsylvania v. FLRA(11), F.2d , No. 91-1293, D.C. Circuit, April 2, 1993 (hereinafter "Allenwood"), has, impermissibly and improperly, I submit, extended "particularized need" to all data requests, i.e., that in every instance the union must, under § 14(b)(4)(B), show, not merely that the data is "necessary", but that it has a "particularized need" for the information it seeks. The "modification" of the term "necessary" in § 14(b)(4)(B) was less intrusive in Scott AFB, supra, for there the Court stated, in part, as follows:
". . . here, the Authority ordered disclosure of the disciplinary letter without adequately explaining the 'necessity' of the requested information. As in the NLRB v. FLRA cases, the Authority applied a standard of relevance, rather than necessity, contrary to the statute's requirement. In finding that disclosure of the disciplinary letter was 'necessary,' the Authority considered only the interests favoring disclosure . . . But as the Court said in NLRB v. FLRA, '[i]f only pro-disclosure interests were material to § 7114(b)(4)(B), the statutory factor of "necessity" would be surplusage' . . . The Authority should have considered counter-vailing interests against disclosure, and because it did not do so we remand for reconsideration." (956 F.2d at 1224).
Thereafter, the Court further stated,
". . . We recognize that the Court in NLRB v. FLRA instructed the Authority to consider an anti-disclosure interest specifically identified in the statute - the interest in protecting the secrecy of 'guidance, advice, counsel, or training' for management officials . . . - and that the statute does not mention the interest of an agency or employee in preserving the secrecy of disciplinary records. [This is not entirely true and, moreover, is misleading: as noted above, "to the extent not prohibited by law" in 14(b)(4) incorporates the Privacy Act and the Authority had, as the Court noted, found that disclosure was not prohibited by the Privacy Act.] But we see nothing in the term 'necessary' that limits consideration to specif-ically mentioned anti-disclosure interests. . . ." (956 F.2d at 1225).
In Allenwood, supra, the Court stated the "modification" unequivocally as follows:
"The FLRA's interpretation of 'necessity' is inconsistent with this Court's decisions in two cases decided since the FLRA rulings in these cases. In Department of the Air Force v. FLRA, 956 F.2d 1223, 1224 (D.C. Cir. 1992) (per curiam), and NLRB v. FLRA, 952 F.2d 523, 532 (D.C. Cir. 1992), we made clear that § 7114(b)(4)(B) requires a union to demonstrate a 'particularized need' for information it seeks. In evaluating whether a union has satisfied this standard, the Authority must consider (1) the union's particularized need for the requested information . . . and (2) the counter-vailing anti-disclosure interests of the agency. . . ." (id., slip opinion at pp. 5-6) (Emphasis supplied).
The merits of the Court's adoption of "particularized need" in NLRB v. FLRA, supra, aside(12), the Court clearly held that: (a) "particularized need" attaches only to guidance, advice, counsel, or training for management officials. Thus, the Court stated,
". . . we hold that 'guidance,' 'advice,' 'counsel' or 'training' for management officials that is claimed to be necessary for the 'full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining' should be released upon union request only in those circumstances when the union has a particularized need for the information." (id., at 532).
"We . . . hold that an agency need not disclose information on 'guidance', 'advice,' 'counsel' or 'training' for management officials under § 7114(b)
(4)(B) unless the union has a 'particularized need' for such information." (id., at 534).
(b) "Particularized need" is more than "necessary". The Court stated,
". . . Even assuming, arguendo, that unions often will be unable to show a particularized need for such information. . . ." (id., at 532).
". . . where the union has no grievable complaint covering information on 'guidance,' 'advice,' 'counsel' or 'training,' § 7114(b)(4)(B) normally will not require disclosure." (id., at 533).
". . . At least where the union has a grievable complaint covering the pre-decisional text, the union may have a particularized need for disclosure." (id., at 534).
General Counsel, relying on Scott AFB, supra, asserts variously that: ". . . particularized need of the Union must be balanced [against] the Respondent's countervailing interests in nondisclosure. . . ." (General Counsel's Brief, p. 6); "The ALJ's Refusal to Allow . . . General Counsel to Cross Examine Respondent's Witness on Countervailing Interests was Harmful Error" (General Counsel's Brief, p. 7); ". . . any decision . . . that the countervailing interests in non-disclosure outweigh the Union's particularized need . . . would be improper." (General Counsel's Brief, p. 9), are without merit. First, while, for reasons set forth above, I believe Scott AFB, supra, and Allenwood, supra, were wrongly decided by the extension of "particularized need" to all information requests, the propriety of those decisions is not material to this case. Second, General Counsel's assertions demonstrate a basic misunderstanding of the decision of the Court in NLRB v. FLRA and the mandate therein which is, in any event, controlling in this case.
There is no balancing in NLRB v. FLRA, or, to the extent there is, the Court has already done the balancing of interests. Thus, the Court held,
"'guidance,' 'advice,' 'counsel' or 'training' . . . should be released upon union request only . . . when the union has a particularized need for the information." (952 F.2d at 532).
When, as here, the information sought is "guidance, advice, counsel, or training" for management officials or supervisors, notwithstanding that it does not relate to the collective bargaining process, the union, nevertheless, is not entitled to the information unless it has a particularized need for it. General Counsel was required to show that the Union had a particularized need. When a particularized need is shown, there is no balancing required - the Union is entitled to the information.
B. Compliance with Memoranda not enforceable under the Collective Bargaining Agreement.
Although Mr. Smith initially testified that the Union could grieve a failure of Respondent to follow its policy, as set forth in the requested memoranda, under Article 4, Section B of the parties' Agreement, he conceded on cross-examination that, because the earliest document requested was issued in 1978, nearly two years after the effective date of the Agreement and because nothing in the law required that an index be maintained, Article 4, Section B does not apply and, therefore nothing in the Agreement would permit a grievance for failure to maintain an index.
Because the requested memoranda were not incorporated into the Agreement, I find there is no grievable right to the information.
C. General Counsel Has Shown a general "particularized need" for the Data requested.
As stated hereinabove, the present record would satisfy the "necessary" requirement of § 14(b)(4)(B) because the data would have been useful to the Union, first, in knowing the policies management operates under in disciplinary cases and second, to determine whether management has complied with its own policies as a failure to comply could indicate a procedural error. I believe, further, that this constitutes a particularized need. In U.S. Department of Justice, Washington, D.C. and U.S. Immigration and Naturalization Service, Northern Region, Twin Cities, Minnesota and Office of Inspector General, Washington, D.C. and Office of Professional Responsibility, Washington, D.C., 46 FLRA No. 146, 46 FLRA 1526, 1529, 1534, 1538, 1575 (1993), with regard to an INS manual regarding investigations, it was stated by the Judge,
". . . The INS manual regarding investigations of INS employees would allow the Union to determine whether the investigation of Wood had been conducted in accordance with approved methods and procedures and is necessary. . . ." (id., at 1575).
The Authority, in more general terms, stated, in part, as follows:
". . . the Judge found, and we agree, that the Union had a clear, articulated need for the requested information in this case to assist and represent a unit employee in connection with a proposed removal action. . . ." (id., at 1536).
Further, the Authority stated,
". . . without determining the extent to which NLRB v. FLRA applies here or addressing the merits of the decision, we conclude that, even under that decision, the requested information was necessary, within the meaning of the Statute." (id., at 1536-1537).
Here, the requested memoranda regarding the handling of disciplinary cases would permit the Union to determine whether a case had been conducted in accordance with Respondent's prescribed procedures and would provide a basis for alleging procedural error, even though non-compliance with a particular part, such as "Index", could not be grieved independently.
Accordingly, having found that a "particularized need" was shown for the data requested, Respondent violated § 16(a)(1), (5) and (8) of the Statute and it is recommended that the Authority adopt the following:
ORDER
Pursuant to § 18(a)(7) of the Statute, 5 U.S.C. § 7118(a)(7), and § 2423.29 of the Regulations, 5 C.F.R. § 2423.29, it is hereby ordered that the Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, Dallas, Texas, shall:
1. Cease and desist from:
(a) Failing and refusing to furnish the American Federation of Government Employees, AFL-CIO, National Border Patrol Council, the exclusive representative of its employees, with requested memoranda that related to policy governing disciplinary and adverse actions of the Regional Office.
(b) In any like or related manner, interfering with, restraining or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:
(a) Furnish the American Federation of Government Employees, AFL-CIO, National Border Patrol Council, the exclusive representative of its employees, with requested memoranda that related to policy governing disciplinary and adverse actions of the Regional Office.
(b) Post at its facilities, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Associate Regional Commissioner, Management, Immigration and Naturalization Service, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of the Dallas Region, Federal Labor Relations Authority, 525 Griffin Street, Suite 926, LB-107, Dallas, Texas 75202-1906, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.
_________________________
WILLIAM B. DEVANEY
Administrative Law
Judge
Dated: May 19, 1993
Washington, DC
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail and refuse to furnish the American Federation of Government Employees, AFL-CIO, National Border Patrol Council, the exclusive representative of our employees, with requested memoranda that related to policy governing disciplinary and adverse actions of the Regional Office.
WE WILL NOT in any like or related manner interfering with, restraining or coercing our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL furnish the American Federation of Government Employees, AFL-CIO, National Border Patrol Council, the exclusive representative of our employees, with requested memoranda that related to policy governing disciplinary and adverse actions of the Regional Office.
_________________________
(Activity)
Date:_____________ By:_____________________________
This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.
If employees have any of questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Dallas Region, 525 Griffin Street, Suite 926, LB-107, Dallas, Texas 75202-1906, and whose telephone number is: (214) 767-4996.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
Authority's Footnotes Follow:
1. The Respondent and the General Counsel also filed supplemental briefs concerning whether the requested information is necessary, within the meaning of section 7114(b)(4) of the Statute, in response to a Federal Register notice. 59 Fed. Reg. 63995 (1994).
2. The Judge found, Judge's Decision at 7, and the parties agree, that the memoranda in this case constitute "intramanagement guidance" within the meaning of National Park Service. See Respondent's Supplemental Brief at 1-2 and General Counsel's Supplemental Brief at 5.
3. Because we find that the Union has not satisfied its burden of demonstrating that it has a particularized need for the requested information, we leave for another day the issue of the extent to which an agency is responsible for articulating and explaining its countervailing anti-disclosure interests in intramanagement guidance.
4. In view of this conclusion, we do not address whether the information request satisfied the other requirements of section 7114(b)(4) of the Statute.
ALJ's Footnotes Follow:
1. For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the statutory reference, i.e., Section 7114(b)(4)(C) will be referred to, simply, as "14(b)(4)(C)".
2. General Counsel's motion to correct the transcript to show the appearance at the hearing of Mr. Robert M. Smith on behalf of the Charging Party, to which Respondent did not object, is hereby granted.
3. References to the transcript of the February 9, 1993, hearing will be designated "Tr. 2" followed by the page citations to distinguish references to the initial, February 14, 1990, hearing which are designated, "Tr." followed by the page citations.
4. Page 1-1 (G.C. Exh. 7) was a cover sheet entitled: "Part 1 - General Disciplinary/Adverse Action"; Page 1-2 (G.C. Exh. 7; Res. Exh. 2) was the memorandum which recited the delegation of authority, summarized the obligations and instructed that draft of any proposed notice be forwarded to the Regional Office for review and whether the proposed action complies with Administrative Manual 2235 with regard to "like penalty for like offense"; and Page 1-4 was a "Check List" (G.C. Exh. 7, Res. Exh. 2).
5. I am aware that Ms. Fauble testified that the memoranda contains no policy and that neither the Southern Region nor anyone in INS is empowered to make policy. It may be true that only the Department of Justice is empowered to set policy such as "like penalty for like offense"; nevertheless, it is plain, as the Authority stated, ". . . the memorandum contained guidelines for managers and supervisors as to the procedure governing disciplinary and adverse actions." which the Authority further characterized as ". . . Agency personnel policies. . . ." (41 FLRA at 142).
6. The Authority stated,
". . . The requested information was needed by the Union in evaluating whether there was disparate treatment in the length of the grievants' suspensions compared to other cases involving similar misconduct and to determine whether the Respondent had violated the parties' collective bargaining agreement. . . " (41 FLRA at 141).
I find nothing in the record to support the Authority's conclusions - indeed, the guidelines "as to the procedures governing disciplinary and adverse actions" (id., at 142) provide no assistance whatever in evaluating whether there was disparate treatment in the length of grievants' suspension and no basis to show a violation of the parties' bargaining agreement.
7. National Park Service, 38 FLRA 1027 (1990); National Labor Relations Board, 38 FLRA 506 (1990) [Following remand, 44 FLRA 1545 (1992), this case was settled]; and Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 38 FLRA 965 (1990) [Following remand, 44 FLRA 1545 (1992), this case also was settled].
8. In actuality, a fourth limitation is, of course, set forth in the body of § 14(b)(4), namely, "to the extent not prohibited by law".
9. The Court gave two examples. First, ". . . a collective bargaining agreement may establish an agency procedure for employee action . . . The agreed - upon procedure . . . pursuant to which subordinate officials might be required to make interim recommendations before a final decision issues. . . . the recommendations should normally be disclosed to the union, assuming the union could grieve the agency's failure to follow the procedure. In such a case, the union would have a particularized need to know whether the agency has complied with the collective bargaining agreement [footnote omitted]" (id. at 533). Clearly, the union would, under such example, have a particularized need to know whether the agency had complied with the agreed upon procedure, but, I submit, proof of compliance would only be proof that each subordinate official made a recommendation, not the content of the recommendations.
Second, "Another instance . . . is when the disputed document creates a grievable action. A subordinate supervisor might counsel or warn an employee about allegedly poor work performance and then place a confirming written evaluation in the employee's personnel file. If the parties' agreement . . . make[s] it clear that such evaluations are used to determine subsequent disciplinary action . . . the employee surely would have a strong and valid claim to disclosure. . . ." (id. at 533).
10. Circuit Judge Ruth Bader Ginsburg, concurring in FLRA v. U.S. Dep't of the Treasury, Fin. Management Serv., supra, stated succinctly: "The broad cross-reference in 5 U.S.C. § 7114(b)(4) - 'to the extent not prohibited by law' - picks up the Privacy Act unmodified. . . ." (884 F.2d at 1457).
11. This is a consolidated case involving not only Allenwood, 40 FLRA 449 (1991), but also, U.S. Department of Housing and Urban Development, 42 FLRA 1002 (1991); and U.S. Department of Housing and Urban Development, 43 FLRA 748 (1991).
12. For reasons set forth above, while the use of the statutory term, "necessary" certainly implicitly recognizes that factors showing non-necessity must be considered, the term as used in § 14(b)(4)(B) does not recognize or incorporate any concept other than "necessary". As the Court recognizes, and stated in FLRA v. U.S. Dep't of the Treasury, Fin. Management Serv., supra, 884 F.2d at 1456, data may be necessary for purposes of § 14(b)(4)(B) but not disclosable because release would violate the Privacy Act. The counter-vailing interests to disclosure of "necessary" data stem from "to the extent not prohibited by law" in § 14(b)(4) - not from "necessary" in § 14(b)(4)(B). Without doubt, these counter-vailing interests encompass not only statutory provisions, such as the Privacy Act, but government-wide regulations, and, presumably, recognized employer confidentiality interests, see, Detroit Edison Co. v. NLRB, 440 U.S. 301, 315 (1979). I am convinced, for reasons already set forth, that Congress did, indeed, intend that "guidance, advice, counsel, or training provided for management officials or supervisors" should not be subject to mandatory disclosure. In my opinion, this is precisely what Congress provided as shown by §§ 14(b)(4)(C) and 32(a); but the Authority held that the exemption of § 14(b)(4)(C) attached only to guidance advice, etc. relating specifically to the collective bargaining process. The Court adopted the Authority's construction of § 14(b)(4)(C); and, having done so, the statutorily recog-nized and identified interest of non-disclosure of guidance, advice, etc., has been limited to the collective bargaining process. There is no other legitimate or recognized anti-disclosure interest which could be incorporated as a counter-vailing interest pursuant to § 14(b)(4). Stated otherwise, the Court excised confidentiality of guidance, advice, etc., beyond the collective bargaining process; there remains no anti-disclosure interest otherwise to incorporate through § 14(b)(4); and assuredly, the Court improperly attaches an anti-disclosure policy to the word "necessary" in § 14(b)(4)(B).