52:1195(115)CA - - Justice, Federal Bureau of Prisons, U.S. Penitentiary, Marion, IL and AFGE Local 2343 - - 1997 FLRAdec CA - - v52 p1195



[ v52 p1195 ]
52:1195(115)CA
The decision of the Authority follows:


52 FLRA No. 115

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS

U.S. PENITENTIARY

MARION, ILLINOIS

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2343, AFL-CIO

(Charging Party/Union)

CH-CA-30849

_____

DECISION AND ORDER

March 14, 1997

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.(1)

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached decision of the Administrative Law Judge. The Respondent filed an opposition to the General Counsel's exceptions. The Respondent also filed cross-exceptions, to which the General Counsel filed an opposition.

The complaint alleges that the Respondent violated section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) when it failed to provide the Union with information concerning an investigation of a bargaining unit employee by the Respondent's Office of Internal Affairs (OIA). The Judge recommended dismissal of the complaint.

On consideration of the Judge's decision and the entire record in this case, and for the reasons expressed below, we adopt the Judge's conclusion that the Agency did not violate the Statute. Accordingly, we dismiss the complaint.

II. Background and Judge's Decision

The facts, which are set forth in the Judge's decision, are briefly summarized here. On February 19, 1993, an inmate who had been transferred from segregated confinement into the general prison population was released into the prison recreation area and immediately confronted another inmate in a fighting stance. Several correctional officers removed the first inmate to another area of the prison.(2) One of the officers was subsequently accused by a supervisor of physically abusing the inmate after they arrived in that area. The allegations of abuse were referred to the OIA and the officer was placed on home duty pending an investigation.(3)

Thereafter, the Union filed a grievance claiming that the Respondent had been warned by prison staff that the inmate would start a fight if he were released into the recreation area, and that by releasing the inmate the Respondent had endangered the lives of prison staff and inmates in violation of the health and safety provisions of the parties' collective bargaining agreement.(4) General Counsel Exh. 2 at 3. The grievance asserted that, as a result of the Respondent's decision to release the inmate, "one Officer is at home on 'home duty' because of a memo written by a supervisor." Id. at 2. The grievance did not name the officer who had been placed on home duty or refer to the allegations against him; nor did the grievance contend that the investigation of these allegations, or the officer's placement on home duty, was in any way improper. Nothing in the Union's grievance charged the Respondent with violating the parties' agreement in any other manner than by releasing the inmate into the recreation area. As a remedy for this violation, the Union requested that the OIA investigate "all supervisors involved in this incident" and transfer various supervisory and managerial officials. Id.

The Respondent denied the grievance, asserting, in essence, that its decision to release the inmate from segregated confinement was justified. It did not mention the correctional officer, the allegations against him, or his placement on home duty. The Union thereupon invoked arbitration "over the grievance that was filed involving safety and health under article 27 section (a)(1)."(5) General Counsel Exh. 4.

Before the arbitration hearing was to take place, the Union requested "any and all notes, memoranda, documentation, etc. of any internal investigation conducted regarding [the inmate] and the incident which occurred on February 19, 1993." General Counsel Exh. 6. The Union stated that it was requesting the information "in order to prepare the case for arbitration." Id. When the Respondent did not answer this request, the Union submitted a second request 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 the correctional officer alleged to have physically abused the inmate. The Union stated that "[t]his information is needed by the Union to prepare itself for the up coming [sic] arbitration case on the Safety issue." General Counsel Exh. 5 at 2. 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." Id. at 3.

The Respondent denied the Union's request, which it described as asking specifically for a copy of the OIA investigative report on the correctional officer who had allegedly abused the inmate. According to the Respondent, 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." General Counsel Exh. 8.(6) The Respondent attached a copy of another report on the inmate resulting from an earlier incident and stated that this report was the last document in its possession "pertaining to the upcoming arbitration case." Id.(7)

The Judge conducted an in camera examination of the OIA report on the correctional officer, along with a second report on an allegedly false statement given by another officer during the OIA investigation of the first officer. The Judge found that the 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 [the inmate] was a volatile individual." Judge's Decision at 10. The Judge found that the second report tended to support "the Union's allegation that Respondent was fully aware that [the inmate] would start a fight" upon being released into the recreation area. Id.

The Judge 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 they constituted "managerial advice, guidance, or counsel to Respondent concerning the matters under investigation within the meaning of section 7114(b)(4)(B) of the Statute." Judge's Decision at 12. The Judge found that the Union had failed to establish a particularized need for the reports and concluded, therefore, that the Respondent's refusal to disclose them or their supporting documentation did not violate the Statute.(8)

III. Positions of the Parties

A. General Counsel

The only issue addressed by the General Counsel's exceptions is whether the information requested by the Union in this case "was necessary for the Union to perform its representational duties." General Counsel's Exceptions at 2. The General Counsel principally contends that the Judge erred in applying the particularized need standard to determine whether the information was necessary. According to the General Counsel, the Judge's description of the two OIA reports reveals that neither the reports nor their supporting documentation contain intramanagement advice, guidance or counsel.

Alternatively, assuming that the information requested by the Union did constitute intramanagement advice, guidance or counsel, the General Counsel presents two arguments. First, the General Counsel maintains that the Union had a particularized need for the information because, consistent with Department of Health and Human Services, Washington, D.C., 49 FLRA 61 (1994), it had a "grievable complaint" (i.e., its grievance over health and safety) when it made its requests. General Counsel's Exceptions at 8. In particular, the General Counsel points to the Union's statement that it was requesting the information to prepare for arbitration of its pending grievance over safety, and asserts that the Respondent has stated no persuasive countervailing interest in withholding that information. Second, the General Counsel argues that, even if portions of the information did constitute intramanagement advice, guidance or counsel for which the Union did not establish a particularized need, the Respondent was still obligated to provide the Union with sanitized copies of the remaining information.

Finally, the General Counsel opposes each of the Respondent's exceptions described below.

2. Respondent

The Respondent agrees with the result reached by the Judge in this case but argues that he reached that result for the wrong reasons. Specifically, the Respondent claims that the Judge failed to "address the allegation which formed the gravamen of the Complaint." Respondent's Cross-Exceptions at 8 (emphasis in original). According to the Respondent, the Judge found that the information requested by the Union constituted "guidance, advice, counsel . . . etc." under section 7114(b)(4)(C) of the Statute -- whereas the complaint alleged that the Respondent violated the Statute by asserting that the information was not "necessary" within the meaning of section 7114(b)(4)(B). Id. In addition, the Respondent contends that the complaint could not have covered the OIA report on the allegation that another correctional officer lied during the investigation of the first officer because this allegation was not made until after the Union had filed its grievance.

The Respondent also excepts to the Judge's decision (and opposes the General Counsel's exceptions) on a number of other grounds. In particular, the Respondent argues (a) that disclosure of the information requested by the Union was barred by the Freedom of Information Act, as well as by the internal security provisions of section 7106(a)(1) of the Statute; (b) that any question of whether the information was "necessary" to pursue the Union's grievance depended on whether the grievance was arbitrable and should therefore have been left to the arbitrator; (c) that the Respondent's countervailing interests in not disclosing the information outweighed any particularized need the Union might have shown; and (d) that the Union failed to demonstrate a particularized need for reasons other than those relied upon by the Judge.

IV. Analysis and Conclusions

A. The Respondent Has Not Been Denied Due Process

Contrary to the Respondent's arguments, it is clear that the Judge did not determine that the information requested by the Union constituted "guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining" within the meaning of section 7114(b)(4)(C) of the Statute. He instead determined that the information was "not 'necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining' within the meaning of section 7114(b)(4)(B)." Judge's Decision at 13. The Judge's determination plainly addresses the allegations in the complaint and the issues litigated at the hearing. Accordingly, we reject the Respondent's contention that the Judge based his decision on a theory of violation different from that alleged in the complaint or litigated at the hearing and thereby denied the Respondent due process.

We also reject the Respondent's contention that the complaint in this case could not have encompassed the OIA report on allegations that a second correctional officer had lied during the investigation of the first. Although it is undisputed that these allegations were made after the Union filed its grievance, the Respondent does not explain, and it is not otherwise apparent, why this fact necessarily would have precluded the Union from making a proper request for the report under section 7114(b)(4)(B).

B. The Union Was Required to Establish and Articulate a Particularized Need for the Information It Requested

Subsequent to the Judge's decision in this case, the Authority decided Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Kansas city Service Center, Kansas City, Missouri, 50 FLRA 661 (1995) (IRS, Kansas City). In IRS, Kansas City the Authority stated 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." Id. at 669. As a result, the Union in this case was required by IRS, Kansas City 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.

IRS, Kansas City holds that a union requesting information under section 7114(b)(4) of the Statute must articulate, 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. A union will not satisfy this burden merely by showing that the information is or would be relevant or useful, but must show that it requires the information in order to adequately discharge its representational functions. This showing demands more than conclusory or bare assertions. Although a union's request for information need not be so specific as to reveal its strategies or the identity of potential grievants, its request must nevertheless be sufficient to permit the agency to make a reasoned judgment about whether the Statute requires disclosure. See id. at 669-70.

In addition, subsequent decisions applying IRS, Kansas City have made it clear 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. See, e.g., Social Security Administration, Dallas Region, Dallas, Texas, 51 FLRA 1219, 1223-24 (1996) (SSA, Dallas); U.S. Equal Employment Opportunity Commission, 51 FLRA 248, 258 (1995) (EEOC). See also U.S. Department of Justice, Immigration and Naturalization Service, Northern Region, Twin Cities, Minnesota, 51 FLRA 1467, 1481-82 (1996) (Twin Cities); cf. id. at 1474-76.

C. The Union Has Not Articulated or Established a Particularized Need for the Requested Information

The Union twice requested information developed by the OIA investigation of the correctional officer alleged to have physically abused an inmate. On both occasions, the Union's only explanation for requesting this information was its conclusory assertion that it needed the information to prepare for arbitration of its previously filed grievance. Because this assertion does not, on its own, meet the standard established by IRS, Kansas City, it is appropriate to examine the grievance itself to determine whether it sheds any additional light on the Union's need for the information, such as would provide a basis upon which to conclude that the Union's requests were sufficient to permit the Respondent to make a reasoned judgment about its obligation to disclose the information.

In examining the grievance for this limited purpose, we note the Union's testimony at the hearing that the grievance raised two separate issues: "the fact that [the correctional officer] was being put on home-duty status," and the "health and safety issue" resulting from the inmate's release into the recreation area. Transcript at 26. For the reasons that follow, we conclude that the first issue -- the correctional officer's placement on home duty -- was not one that the Respondent had reason to know was part of the arbitration for which the Union requested information. Therefore, this issue does not provide a basis for finding that the Respondent could reasonably have understood the Union's need for the requested information. As for the second issue -- the effect on health and safety of the inmate's release into the recreation area -- we conclude that the Union never explained to the Respondent why it needed the information developed by the OIA investigation of the correctional officer in order to show that the inmate's release adversely affected health and safety.

1. The Union Did Not Apprise the Respondent, at or Near the Time of Its Information Requests, that the Treatment of the Correctional Officer Was an Issue to Be Arbitrated

The Union's grievance, on its face, alleged that the Respondent had endangered the lives of employees and inmates, in violation of the health and safety provisions of the parties' agreement, by releasing into the recreation area an inmate known to be violent. As one of the consequences of the Respondent's decision to release the inmate into the recreation area, the grievance referred to an unnamed correctional officer's placement on home duty. The grievance did not, however, contend that the officer's placement on home duty was in any way improper, and challenged neither the allegations against him nor the OIA investigation into those allegations.

In denying the Union's grievance, the Respondent discussed briefly its reasons for transferring the inmate from segregated confinement but did not mention the correctional officer. Nor did the Union mention the officer in invoking arbitration. Neither the Union's first information request nor its second referred to the allegations against the officer or his placement on home duty as issues in the grievance. The Union's first request, in fact, made no reference to any issues at all; its second request referred only to "the up coming arbitration case on the Safety issue." General Counsel Exhibit 5 at 2 (emphasis added). As noted previously (note 6, supra), by the time the Union submitted its first information request, the officer had already been cleared of the allegations against him.

Thus, the record evidence indicates that the Union never told the Respondent, at or near the time when the Respondent was considering the information request, that it considered the correctional officer's placement on home duty as an issue in the arbitration for which the information was requested. This connection emerged for the first time at the hearing, when the Union stated that its grievance raised as a separate issue "the fact that [the correctional officer] was being put on home-duty status." Transcript at 26. The Union did not elaborate on this statement, and did not indicate when (or how) it had apprised the Respondent of its belief that the grievance had made an issue of the officer's placement on home duty. Nor did the Union explain why it intended to arbitrate the officer's placement on home duty, or what remedy it meant to seek, after the allegations against the officer had been dismissed.(9)

In short, the Union gave the Respondent no reason to be aware that the Union considered the officer's placement on home duty to be an issue in the grievance, at a time when the Respondent was assessing whether the information was necessary -- and therefore disclosure was required -- under the Statute. Accordingly, we need not consider whether this would have been sufficient, absent any other explanation, to establish a particularized need for the information requested by the Union. See, e.g., SSA, Dallas.(10)

2. The Union Did Not Explain, with Specificity, Why It Needed the Requested Information to Pursue Its Grievance Over the Health and Safety Issue or the Uses to Which it Would Put That Information

With respect to the one issue that both parties clearly understood was raised in the grievance -- i.e., whether the Respondent had endangered health and safety by improperly releasing the inmate into the recreation area -- the Union at no time explained why it needed the information from the OIA investigation or what it planned to do with that information. All the Union said was that it needed the information "to prepare" for the arbitration of its grievance. Not even the Union's testimony at the hearing unambiguously indicates the connection it saw between the investigation of the correctional officer and arbitrating the health and safety issue in the Union's grievance. Rather, according to that testimony, the Union wanted the OIA reports because it needed "to know exactly what happened . . .  exactly who has been charged [and] why they were charged." Transcript at 30. As to the correctional officer in particular, the Union stated that it needed to know "why [the officer] was put on home-duty status, why they decided to bring him back," and "what was done and what wasn't done right" in the procedures the Respondent followed. Id. at 30-31. To the extent that the Union was seeking this information because it believed it would shed light on the actions surrounding the allegations against the correctional officer, not the Respondent's knowledge prior to the inmate's release, it is not surprising that the Respondent would have seen the requested information as "in no way related to the original grievance filed by the Union." Transcript at 48 (emphasis added).

The reason given by the Union for its requests in this case (that it needed the information "to prepare" for arbitration of its grievance) is comparable to reasons that the Authority has found insufficient in other cases because they were merely conclusory or bare assertions of need.(11) E.g., Twin Cities, 51 FLRA at 1480-82 (union stated that it needed exhibits to inspector general report and related materials "to properly respond to allegations" in notice of employee's proposed removal); U.S. Department of the Treasury, Internal Revenue Service, Washington, DC and U.S. Department of the Treasury, Internal Revenue Service, Oklahoma City District, Oklahoma City, Oklahoma, 51 FLRA 1391, 1392 (1996) (union asserted that other employees' performance appraisals were "necessary to support our allegations" that grievant's lowered appraisal rating constituted discrimination based on sex). The only other Union statement of its reasons at or near the time it sought the information appears in its second request, where it stated that "[m]anagement has this information to present during the arbitration and the Union needs this same information so it may effectively present its case." General Counsel Exh. 5 at 3. This statement is similarly conclusory.

The case now before the Authority is distinguishable from others in which the Authority found that a union established a particularized need for information in order to determine whether to file a grievance, invoke arbitration, or otherwise discharge its representational responsibilities. See, e.g., Twin Cities, 51 FLRA 1467 (union requested sanitized disciplinary actions involving infractions similar to those with which an employee it was representing in an oral reply to a proposed adverse action was charged to determine whether the employee had been treated disparately); Internal Revenue Service, Austin District Office, Austin, Texas, 51 FLRA 1166, 1178 (1996) (union requested prior disciplinary letters issued to all employees for certain misconduct to determine whether action proposed against employee for same misconduct constituted disparate treatment); U.S. Department of Transportation, Federal Aviation Administration, New England Region, Bradley Air Traffic Control Tower, Windsor Locks, Connecticut, 51 FLRA 1054, 1068 (1996) (union asked for performance award data for nonunit employees to determine whether unit employees had been treated differently under awards program); United States Immigration and Naturalization Service, United States Border Patrol, Del Rio, Texas, 51 FLRA 768, 774-76 (1996) (union requested all memoranda from unit employees seeking reassignment to determine whether complaints about assignment policy were true) Department of the Air Force, Scott Air Force Base, Illinois, 51 FLRA 675, 682 (1995), enforced, No. 96-1060 (D.C. Cir. Jan. 24, 1997) (Scott) (union sought letter from agency allegedly disciplining supervisor to determine whether to proceed with grievance over supervisor's use of physical force against unit employee). In these cases, the record established that the union had communicated to the agency, in a timely manner, why it needed certain information.(12) Here, by contrast, the Union 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 claiming that the Respondent had endangered the health and safety of employees by releasing a violent inmate into the recreation area. That, as our dissenting colleague points out, the Union was unaware until the hearing that the investigation generated two reports does not excuse the Union's failure to articulate particularized need for any report.

Because a constructive labor-management relationship requires two-way communications, we are troubled that the Respondent did not respond at all to the Union's first request and that it did not, as it could have, explicitly seek clarification when it responded to the second request. However, we are unable to infer that this failure establishes that the Respondent was "clear" about the Union's reasons for requesting the information. To the contrary, the Respondent's reply to the Union's requests, as well as both parties' subsequent testimony at the hearing, indicates that the Respondent and the Union may have had different understandings about the issues in the grievance, and the connection between these issues and the requested OIA information. It is precisely this kind of misunderstanding, and the litigation arising from it, that led the Authority in IRS, Kansas City to adopt a standard requiring parties "to articulate and exchange their respective interests in disclosing information." 50 FLRA at 670. The Authority has never found a violation of Section 7114(b)(4) based on an agency's silence, however. We do not believe it appropriate to do so on the record presented here, particularly given the absence of any party arguments on this point and the fact that the events at issue took place years before the Authority's decision in IRS, Kansas City.(13)

In conclusion, we find that the General Counsel has 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.(14)

V. Order

The complaint is dismissed.

 




Dissenting Opinion of Member Wasserman

I agree with the disposition of the matters reached by my colleagues in Parts IV.A. and B. of the decision. However, I disagree with their determination that the Union failed to establish a particularized need for the requested information in this case. For that reason, I dissent.

Applying the analytic framework established in 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), it is clear to me that the Union established a particularized need for the requested information. The Union expressly stated that the information it sought was intended to be used in presenting its case at arbitration. In its first written information request, the Union identified the type of information it sought, described the incident to which the information related and indicated the use for the information in connection with the arbitration that was scheduled approximately one month later. The Respondent gave no reply to this request. Maintaining its position that the information was needed to "effectively present its case" at arbitration, the Union submitted a second written request in which it described that need with greater particularity. General Counsel's Exhibit 5 at 3. In this request, the Union specifically sought "information obtained by the Office of Inspection in their completed investigation" of a particular correctional officer whom the Union identified by name. Id. at 1. It further stated that the information was "needed by the Union to prepare itself for the up coming arbitration case on the Safety issue. Management is in receipt of this information as it will be a part of their case." Id. at 2. It is clear to me, from these requests, that the Union specifically articulated its need for the information and the uses to which that information would be put. It is equally clear to me that the Respondent had a sufficient basis on which to evaluate the Union's need.

However, if the Respondent had some doubt as to why the Union needed the information, all the Respondent had to do was either seek clarification from the Union or, quite simply, refer back to the grievance. As to the former, I find it significant that the Respondent never asked the Union to explain further its need for the information. See e.g., U.S. Equal Employment Opportunity Commission, 51 FLRA 248 (1995) (EEOC). The Authority repeatedly has emphasized that requiring parties to articulate and exchange their interests in disclosing information serves several important purposes, including the ability of the parties to accommodate their needs in attempting to reach agreement on the extent to which requested information is disclosable. IRS, Kansas City, 50 FLRA at 670-71. Had the Respondent asked the Union for clarification, the Union would have had to provide such clarification or run the risk of failing to fulfill its burden of establishing a particularized need for the information requested. E.g., EEOC, 51 FLRA at 257-58. See also U.S. Department of the Treasury, Internal Revenue Service, Washington, D.C., 51 FLRA 1391, 1395-96 (1996) (Internal Revenue Service).

As for reliance on the contents of the grievance, I note that the information requests were explicitly tied to the grievance and that it clearly raised issues concerning health and safety and the Respondent's contractual obligation to provide employees with a safe work environment. A further examination of the grievance shows that the Union set forth, in some detail: (1) the events that gave rise to the February 19, 1993, incident in which an inmate was released from the segregation area into the recreation area; (2) the efforts taken by employees to remove the inmate from the recreation area; and (3) various actions taken by management that predated and, according to the Union, led to the February 19 incident. As evidence of management's actions, the Union stated that various supervisors "force[d] staff into a position of having to fight an inmate when there was no need[,]" and that one correctional officer was on home duty and one officer suffered a potentially career-ending injury. General Counsel's Exhibit 2 at 2. The Agency clearly understood that the grievance involved health and safety issues as its testimony at the unfair labor practice hearing confirms. In response to a question regarding what the Respondent believed the grievance to be about, the Respondent replied "Health and safety issue with regard to [an inmate] being released to the general population unit from segregation." Transcript at 44-45.

Any attempt to distinguish between the placement of a correctional officer on home duty status and the issue of health and safety for purposes of determining what issues the Respondent knew were going to be arbitrated does not reflect the Respondent's understanding of the issues for which the information was sought. Based on its testimony, the Respondent viewed home duty as a matter relating to safety. In describing one of the primary reasons for using home duty, the Respondent testified that it is used in situations that have "a direct impact on the security of the institution" and "the safety of the individual subject under investigation . . . or the safety of others at the institutional level . . . ." Transcript at 53. The record further shows that the Respondent was well aware that the Union sought information concerning a particular correctional officer. The Respondent itself referenced this individual by name, and the investigation concerning his actions, when it responded to the second written information request. Moreover, there is no evidence in the record that more than one correctional officer was placed on home duty status as a result of the February 19 incident.

Thus, I am not all persuaded that the Respondent was unaware that the Union intended to arbitrate the issue of home duty. However, even if the Union did not intend to raise that matter at arbitration, it would be sufficient for purposes of establishing a particularized need for the requested information that the Union stated that it was going to arbitrate the safety issue. This is a matter that no one disputes was a part of the grievance.

In my view, it is clear that the information the Union sought in this case was essential to assist the presentation of the Union's case at arbitration. As the grievance claimed that management essentially created a situation that endangered the health and safety of bargaining unit employees, it was reasonable for the Union to believe that the information it requested, which consisted of documents pertaining to the February 19 incident, could have revealed facts about management's knowledge and its actions that led to that incident. I agree with the Judge's findings, based on an in camera inspection of the reports, that: (1) it was reasonable for the Union to assume that supervisory activities leading to the February 19 incident were encompassed within one of the OIA reports; (2) statements obtained during the investigation supported "an essential element" of proof that the Union needed in order to establish that management's actions affected employee safety; and (3) material contained in one of the reports specifically covered issues that were a "possible motive" behind management's actions and otherwise tended to support the Union's allegation. Judge's Decision at 10.

On the other hand, had the Respondent provided such information, it might have exonerated management by revealing that its actions did not violate the parties' agreement. Consequently, upon receipt of the information, the Union might have decided to rescind its invocation of arbitration. The Authority has recognized that a union has a substantial interest in information that will assist it in determining whether to proceed to arbitration as well as in preparing a grievance for arbitration. Department of the Air Force, Scott Air Force Base, Illinois, 51 FLRA 675, 683 (1995), enforced, 104 F.3d 1396 (D.C. Cir. 1997) (Scott Air Force Base). Without the information in this case, the Union could not make an informed judgment as to whether or not it should proceed to arbitration.

In the circumstances of this case, I do not believe that the Union was required to make a closer connection between the information request and the uses of that information than it did. Among the circumstances that, as a general matter, may be considered in evaluating the sufficiency of a union's showing of need, I believe that two are particularly relevant here. First, I believe it is appropriate to consider the environment in which employees are required to work and, in so doing, I find compelling the Respondent's obligation to provide as safe a work environment as it is reasonably possible to provide in a prison setting. In this regard, the Respondent described the U.S. Penitentiary at Marion as a maximum custody facility, "the only one currently in the Bureau of Prisons." Transcript at 44. The facility houses "volatile" inmates who are kept in segregation and isolated from the general prison population. Judge's Decision at 10. The Respondent recognizes the facility as a "potentially very dangerous" one, particularly where proper procedures are not followed by supervisors. Transcript at 51. The Union's concern with ensuring that management adhere to proper procedures and reduce the potential for danger -- and with removing supervisors who act in contravention of these goals -- formed the basis of the Union' grievance. There can be no doubt that matters of workplace safety are proper subjects of grievances. Scott Air Force Base, 104 F.3d at 1400 ("matters affecting workplace safety are clearly grievable"). The Union's need for information in order to represent bargaining unit employees at the arbitration hearing on this matter cannot be emphasized enough.

The second relevant circumstance in this case is predicated on the fact that the Union was unaware of what information had been created as a result of the Respondent's investigation. Indeed, not until the day of the unfair labor practice hearing in this case did the Union learn that the investigation of the February 19 incident had generated two reports. Transcript at 28. At the time of its information requests, the Union did not know what reports, if any, were in existence. As a result, the Union could not craft a precise explanation as to how the information would assist it. This is not a case where a union has routinely received a particular type of information that enables it to easily formulate the basis for an information request. I do not believe that an agency should need such a high degree of precision in an information request in order to be able to make a reasoned judgment that requested information is disclosable under the Statute.

I also believe that the standard articulated in IRS, Kansas City must not be applied in a way that would create an uneven collective bargaining relationship or be applied rigidly so as to tilt determinations regarding the disclosability of information too far in favor of non-disclosure. Unions are placed in the inherently difficult position of guessing how much to say in an information request. If too little is said, unions run the risk of failing to establish a particularized need. If too much is said, they run the risk of undermining their role as effective advocates. The Authority recognized, in IRS, Kansas City, that the application of a standard that requires parties to articulate and exchange their respective interests serves to enhance their abilities to effectively and timely discharge their collective bargaining responsibilities under the Statute. I fail to see how a union can responsibly fulfill its representational functions if, in the course of seeking needed information, it is required to reveal to an agency the strategy it intends to pursue. Although the Authority clearly has stated that a union is not required to do so, id. at 670 n.13, that is precisely what will occur if a union is required to fashion its information request with exact precision. The Statute was intended to have flexibility in order to achieve a workable balance between what are often viewed as competing interests. The Authority recently recognized this in the context of bargaining under section 7106 of the Statute and I believe it is appropriate to do so as well in the context of furnishing information under section 7114(b) of the Statute. See American Federation of Government Employees, Local 1336 and Social Security Administration, Mid-America Program Service Center, 52 FLRA 794, 799 (1996) petition for review filed as to other matters, No. 97-1066 (D.C. Cir. Jan. 31, 1997).

The cases on which my colleagues rely are distinguishable on their facts. In U.S. Department of Justice, Immigration and Naturalization Service, Northern Region, Twin Cities, Minnesota, 51 FLRA 1467 (1996), the Authority found that the union did not establish a particularized need for certain information where the need was essentially set forth for the first time at the ULP hearing. This was in contrast to other information concerning which the parties had met and the union had clarified its need. In this case, the Union first made its need known to the Respondent in the written requests for information -- not at the hearing. The Respondent obviously was satisfied with the Union's expression of need as it made no request for any further explanation or clarification from the Union. Moreover, I do not believe that the Union was obligated to provide any further explanation of its need than was provided in the two written requests. Therefore, I find no reason to distinguish this case from the portion of INS, Twin Cities concerning which the union had clarified its need after its initial information request.

In Internal Revenue Service, 51 FLRA 1391, a union requested copies of performance appraisals to assess whether a grievant had received disparate treatment and had been discriminated against on the basis of sex. The Authority found that the union failed to establish a particularized need for the information. In particular, the Authority found that the union had not responded to the agency's request for clarification as to how the appraisals could be used to compare with that of the grievant since the grievant admittedly occupied a unique position. The circumstances here are vastly different. The Union's information requests were sufficiently specific to enable the Respondent to make a reasoned judgment regarding the Union's need for the information.

As for the cases my colleagues distinguish, I believe, for the reasons already expressed, that the facts of this case support a showing of particularized need, just as the facts of those cases satisfied that standard.

Having found that the Union established a particularized need for the requested information, I would reject the Respondent's additional defenses, as explained below, and would find that the Respondent was obligated to furnish the information to the Union.(15)

First, under the analytic approach of IRS, Kansas City, an agency may properly withhold information when its countervailing anti-disclosure interests outweigh the necessity of requested information. Previously, I have expressed no view as to whether section 7114(b)(4) of the Statute requires the Authority to take countervailing interests into account in determining the necessity of information that does not constitute "intramanagement guidance, advice, counsel or training." E.g., Social Security Administration, Dallas Region, Dallas, Texas, 51 FLRA 1219, 1222 n.4 (1996). However, even if I were to assume that such a requirement exists, I would find that the countervailing interests asserted by the Respondent here do not outweigh the Union's need for the information.(16)

The Respondent points to privacy interests of various persons involved in the investigation of the February 19 incident and the Respondent's own internal security practices as its countervailing interests. I am convinced, based on my reading of the documents that were submitted into the record, that their disclosure would compromise neither individual privacy interests nor the integrity of the investigatory process. The documents are simply a recitation of the events surrounding that incident. Additionally, it is not clear to me how the Respondent's internal security practices would be jeopardized in any way by disclosure of the documents. I am puzzled by the fact that the Respondent never raised these concerns when the Union submitted its information requests, suggesting that perhaps these concerns were not of primary significance to the Respondent. Indeed, the Respondent never even replied to the Union's first written request for information and, as to the second written request, the Respondent's reply was silent as to these concerns.

Second, I would reject the Respondent's assertion that the Freedom of Information Act bars disclosure of the requested information. Under section 7114(b)(4), information may be withheld from disclosure if it is prohibited by law. As the Authority stated in U.S. Customs Service, Region IV, Miami, Florida, 48 FLRA 1239, 1242 (1993), "[i]t has long been established that the FOIA does not prohibit release of any data. It merely permits agencies to withhold from release data falling within its exceptions [citation omitted]." See also Chrysler Corp. v. Brown, 441 U.S. 281, 293 (1979) ("Congress did not design the FOIA exemptions to be mandatory bars to disclosure." (footnote omitted)).

Third, I would reject the Respondent's contention that release of the requested information would be inconsistent with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. A similar argument was addressed and rejected by the court in National Labor Relations Board Union, Local 6 v. NLRB, 842 F.2d 483, 486 (D.C. Cir. 1988), which held that "[n]othing in § 7106 contains any language concerning the disclosure or prohibition of disclosure of anything."

Finally, I would find no merit to the Respondent's claim that, if the grievance were presented to an arbitrator, the arbitrator would be required to construe and apply a rule or regulation that is outside his or her statutory jurisdiction. This contention is simply without foundation. As I noted previously, the grievance alleged a violation of the health and safety provision of the parties' agreement. There can be no doubt that an arbitrator has the authority to resolve such a claim.

In sum, I find that the Union established a particularized need for the requested information. Having rejected the Respondent's defenses, I would also find that the Respondent was obligated to furnish the information and that its failure to do so violated the Statute.




UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424-0001

U.S. DEPARTMENT OF JUSTICE,

FEDERAL BUREAU OF PRISONS,

U.S. PENITENTIARY,

MARION, ILLINOIS

Respondent

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 2343, AFL-CIO

Charging Party

Case No. CH-CA-30849

Phillis R. Morgan, Esq.
For the Respondent

Roland J. Beckman
For the Charging Party

John F. Gallagher, Esq.
For the General Counsel

Before: SALVATORE J. ARRIGO
Administrative Law Judge

DECISION

Statement of the Case

This case arose under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. § 7101, et seq. (herein the Statute).

Upon an unfair labor practice charge having been filed by the captioned Charging Party (herein the Union) against the captioned Respondent, the General Counsel of the Federal Labor Relations Authority (herein the Authority), by the Regional Director for the Chicago Regional Office, issued a Complaint and Notice of Hearing alleging Respondent violated the Statute by failing to provide the Union with data pertaining to an investigation by Respondent's Office of Internal Affairs.

A hearing on the Complaint was conducted in St. Louis, Missouri, at which all parties were afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses and argue orally. Briefs were filed by Respondent and the General Counsel and have been carefully considered.

Upon the entire record in this case, my observation of the witnesses and their demeanor and from my evaluation of the evidence, I make the following:

Findings of Fact

At all times material the American Federation of Government Employees, AFL-CIO (herein AFGE) has been the exclusive collective bargaining representative of various of Respondent's employees and AFGE Local 2343 has been the agent of AFGE for the purpose of representing those employees.

The record reveals(1) that on February 18, 1993 it came to the attention of Correctional Officer Sablewski that an inmate named Baptiste had been released from segregated confinement and transferred to confinement with the general prison population. Baptiste was a disciplinary problem at the prison and apparently was disposed to fight with other prisoners. Officer Sablewski told Evening Watch Lieutenant Huffenburger, a supervisory officer, and another Lieutenant Miliara, that it was his opinion Baptiste would fight with the first person he came into contact with when released from segregation. Huffenburger acknowledged to Sablewski that they knew Baptiste was going to fight.

On the next morning, February 19, the guard unit team and management personnel discussed who they thought Baptiste was going to fight. During the course of the morning several day shift Lieutenants inquired if Baptiste had been released yet for recreation. The staff, beginning in the morning, warned unit managers, Associate Warden Booker when he came through the guard unit area on his morning rounds, and Captain Bezy that Baptiste should not be let out with the general prison population for recreation because he would cause a fight. When Bezy had arrived at the guard unit area at 12:30 p.m. he was asked what he was doing there and replied, "To save myself the run."(2)

At approximately 1:00 p.m., 18 inmates, including Baptiste, were released into the recreation area. The first inmate Baptiste saw was an individual named Edwards. Baptiste went up to Edwards and "squared off" to begin to fight. Captain Bezy, who was observing the entire episode, ordered the alarm sounded and almost immediately approximately 50 correctional officers appeared on the scene before any fighting actually occurred. Baptiste and Edwards were subdued and the other 16 inmates were escorted back to their cells to assure that a mass fight did not break out.

After being apprehended, inmate Baptiste was restrained by handcuffs and leg-irons, and having refused to walk, was placed in a prone position and carried, face down, back to the segregation area by four correctional officers, including Officer Aubrey Francis. Apparently one officer was injured while Baptiste was being escorted back to segregation. On that same day a charge of excessive use of force against an inmate was made by Special Investigative Supervisor (SIS) Huffenburger that, upon arrival at the segregation area, Baptiste was dropped on the floor by the officers and that Officer Francis kicked Baptiste in the back while he was lying on the floor. The matter was referred to Respondent's Office of Internal Affairs (OIA) for investigation which immediately commenced an investigation of the Supervisor's allegations. Francis was place on "home duty" in which status he was to remain at home during normal work hours, with full pay, while the allegations were being investigated.(3)

On March 9, 1993 the Union filed a grievance essentially alleging that the facts leading up to the incident, including Baptiste's known predisposition to fight and the warnings given to supervision, indicated:

. . . 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 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 Unit.

The grievance alleged Respondent's conduct violated Section a, 1, of the "Health and Safety" provision of the parties' negotiated collective bargaining agreement. 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. The referenced 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.

The grievance was rejected by Respondent and the Union invoked arbitration. On July 7, 1993 the Union requested the Agency 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." The request indicated the information was being sought to prepare for the arbitration of the grievance then scheduled for August 4 and 5, 1993.

The data was not produced by the Agency and the Union again requested the data on July 23, 1993, which request included:

2. 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.

3. 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.

4. Any final reports written by the S.I.S. department at USP., Marion, Ill., concerning this incident.

5. 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.(4)

The request indicated the information was needed so the Union could "effectively present its case" to the arbitrator.

Respondent, on July 29, 1993 and at all times thereafter refused to furnish the Union with the information it requested: Respondent's reply of July 29 stated, in relevant part:

This is in response to your memorandum dated July 23, 1993. In your memorandum, you requested information under 5 USC 7114(b)(4). Specifically, you requested a copy of an Office of Internal Affairs investigation of Physical Abuse of an Inmate, (subject; Aubrey Francis, Correctional Officer), at USP Marion. No staff misconduct was found to have occurred at USP Marion and no action was taken on any employee.

Information requested must be necessary information. Necessary information is information that is adequate to resolve reasonably the grievance at hand. Justice, INS, Border Patrol, El Paso, TX v. FLRA, No. 92-4149 (5th Cir., May 26, 1993). Since none of the allegations of staff misconduct were substantiated by the investigation report you are requesting, none of its contents would be information to resolve reasonably any grievance. Therefore, no particularized need as of the date of this response has been provided by Local 2343 . . . . (See NLRB v. FLRA, 952 F2d 523 (D.C. Cir. 1992). At present, the information you request will not be released.

Attached, you will find a copy of the incident report written on [Baptiste], December 28, 1992, after assaulting [a] Correctional Officer, and [a] Lieutenant. This constitutes the last document in my possession pertaining to the upcoming arbitration case. Investigations on the Physical Abuse of an Inmate and the Release of an Inmate from Segregation, were both conducted by OIA, not at the local institution level.(5) Therefore, OIA is in possession of all other related materials.

Despite repeated requests by the Union at various levels of Respondent, the data it requested has never been provided.

Additional Findings, Discussion and Conclusions

The General Counsel contends Respondent violated the Statute by not providing the Union with the information it requested on July 7 and July 23, 1993, above, alleging Respondent was required to furnish the data under section 7114(b)(4) of the Statute, which obligates the Agency:

"(4) . . . to furnish 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 . . . .

Respondent acknowledges that the data sought by the Union was "normally maintained by the agency" and "does not constitute guidance, advice, counsel . . .", etc. within the meaning of section 7114(b)(4)(A) and (C) of the Statute respectively. However, Respondent contends the data sought is not "necessary for full and proper discussion, understanding, and negotiation" within the meaning of section 7114(b)(4)(B) of the Statute and argues Respondent is prohibited by the Freedom of Information Act from furnishing the data to the Union. Respondent also contends that it need not disclose the requested information since the underlying grievance is not arbitrable.

To begin, I reject Respondent's contention that the Freedom of Information Act prohibits it from providing the Union with the data it requested. To support its position Respondent states the reports "fall within the law enforcement exemption of the Freedom of Information Act" and, without further explication, concludes that the "investigations concerned possible criminal conduct and the disclosure of such information could reasonably be expected to constitute an unwarranted invasion of personal property." While section 552(b)(7)(C) of the Freedom of Information Act, 5 U.S.C. § 552, states that the general requirements for making records available do not apply to "records or information complied for law enforcement purposes," that section goes on to state that such prohibition applies, inter alia:

only to the extent that such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings[.]

The record herein does not establish that the investigations herein were conducted for law enforcement purposes. Rather, the record establishes that when Respondent rejected the Union's request for the reports and back-up documentation, it had already been decided by the Agency that the matter under investigation would be resolved administra-tively. Indeed, the investigation by OIA did not commence until after Respondent reached this decision. Thus disclosure could not interfere with law enforcement proceedings since none were envisioned.

I also reject Respondent's contention that it is not required to produce the data sought by the Union because the underlying grievance is not arbitrable. It is well settled that the question of arbitrability is for determination by the arbitrator. See Department of the Air Force, Langley Air Force Base, Hampton, Virginia, 39 FLRA 966 (1991) and Department of Labor, Employment Standards Administration/Wage and Hour Division, Washington, D.C., 10 FLRA 316 (1983).

The Union sought generally all documents obtained or produced regarding the Baptiste incident of February 19, 1993 and the related investigation of Aubrey Francis' conduct. The Union's grievance concerned the facts and circumstances surrounding inmate Baptiste's release from segregation and eventual return to segregation, which, the Union alleged in its grievance, jeopardized the health and safety of correctional guards whom the Union represented. The grievance spelled out allegations regarding the action of Associate Warden Booker in releasing inmate Baptiste from segregation, Lieutenants Huffenburger and Miliara being notified that releasing Baptiste "was a bad move and was going to cause a fight", Captain Bezy's presence when Baptiste went into the recreation area and other specific acts of Respondent's Management and supervisors which, the Union alleged, led to its conclusion that Respondent essentially was irresponsible in its action. Indeed the Union suspected that Baptiste was released from segregation in full expectation that he would immediately get into a fight, which would be inherently dangerous to him, in retaliation for previously having thrown urine on Captain Bezy and the Segregation Lieutenant in Charge. In these circumstances the Union felt Respondent's conduct created a situation which endangered correctional officers who would be called upon to restrain Baptiste and whomever he fought as well as quelling any disturbances which might have occurred among other inmates who were in the vicinity of the Baptiste fight. Such conduct, the Union alleged, violated the parties' contractual health and safety provision.

In order to support its contention in this regard the Union wished to review any documents or reports which Respondent had, bearing on the incident and employee involvement, which in my view logically would include any investigation of officer Aubrey Francis' actions as well as the officer who was injured during the incident, and the officer who allegedly lied during the Francis investigation. It was reasonable to assume that such matters and their investigations would contain information concerning circumstances surrounding the release of Baptiste into the general prison population which would support the Union's allegation that the release from segregation imperiled the health and safety of correctional officers, and management and supervisors were culpable when placing staff in danger for improper reasons.

With specific regard to the OIA investigative report of SIS Huffenberger's charge concerning Francis, and the OIA investigative report concerning the allegation that a correctional officer provided a false statement during the Francis investigation, these documents were placed in evidence under seal at the hearing before me. My review of these documents, in camera, reveals that the OIA investigative report of the charge that Aubrey Francis physically abused an inmate consists of 11 single-spaced typewritten pages and includes a brief digest of the allegations and a statement of ultimate conclusions, and sections titled "Background", "Introduction", "Summary of Investigative Findings" (seven pages), a brief "Summary of Factual Information" and a brief "Conclusion". The report reveals that the investigation file includes an affidavit from Baptiste and affidavits or inter-view reports from 11 members of Respondent's staff, four of whom including Francis were interviewed by OIA investigators apparently in the presence of their designated Union representative. The investigation covered the period beginning with Baptiste entering the recreation area and centered on Baptiste being carried to the segregation area and awaiting incarceration into a cell.

While the OIA Francis report did not focus specifically on supervisory activities and conversations which led up to the Baptiste--Edwards altercation, which was the subject of the Union's grievance, the Union did not know this, not having been privy to the contents of the document or scope of the investigation.(6) However, in my view it was reasonable for the Union to assume such matters were encompassed by the investigation. Indeed, in its July 29, 1993 reply to the Union, wherein it refused to supply the data requested, Respondent contended the data was not "necessary" stating, "(s)ince none of the allegations of staff misconduct were substantiated by the investigation report you are requesting, none of its contents would be information to resolve reasonably any grievance." This can be read to infer that "staff misconduct" was a subject of the investigation. Therefore the Union should have such information available to it so that it could evaluate the evidence at hand which could assist it in at least determining whether to proceed to arbitration. The Union should also have access to the data to ascertain for itself whether "staff misconduct" on the part of supervisory staff was in fact a subject of the investigation.(7) Also the report reveals that statements obtained from staff during the OIA investigation, which were not produced at the hearing, support the Union's premise that Baptiste was a volatile individual, an essential element needed to prove its allegation that the "safety and well-being of employees" was affected by Respondent's release of Baptiste from segregation.

On the other hand, the OIA report on a correctional officer allegedly providing a false statement specifically covers issues concerning an incident wherein Baptiste was accused of throwing a liquid substance on a Captain and a Lieutenant less than two months before his release from segregation. This, the Union's Vice President testified was a possible motive for Respondent releasing Baptists from segregation. The report also covers an aspect of the period immediately prior to Baptiste appearing in the recreation area, which would tend to support the Union's allegation that Respondent was fully aware that Baptiste would start a fight. Such evidence would clearly be "necessary" within the meaning of section 7114(b)(4)(B) of the Statute when the Union presented its case to an arbitrator.

Accordingly, based upon the above, and all the circum-stances herein, I conclude the information sought by the Union was "necessary" within the meaning of section 7116(b)(4)(B) of the Statute. See United States Border Patrol, Tucson Sector, Tucson, Arizona, 47 FLRA 684 (1993) and cases cited at 687 and U.S. Department of Labor, Washington, D.C., 39 FLRA 531 (1991) and cases cited at 537-38. However, I find that the reports and the supporting documentation sought by the Union in its request of July 7 and July 23, 1993 constituted managerial advice, guidance, or counsel to Respondent concerning the matters under investigation within the meaning of section 7116(b)(4)(B) of the Statute. See Department of Health and Human Services, Washington, D.C., 49 FLRA 61 (1994) (HHS Washington) (internal report concerning management and operations of an office); U.S. Army Armament Research, Development and Engineering Center, Picatinny Arsenal, New Jersey, et al., 49 FLRA 77 (1994) (Picatinny Arsenal) (internal desk audit reports); and Department of the Air Force, Washington, D.C. and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 49 FLRA 603 (1994) (Wright-Patterson) (Inspector General reports of safety programs at various agency facilities).

In HHS Washington, Picatinny Arsenal and Wright-Patterson the Authority inter alia, relied upon its decision in National Parks Service, National Capital Region, United States Park Police, 48 FLRA 1151 (1993) (Member Talkin concurring in part and dissenting in part) (National Park Service) wherein the Authority adopted the court's decision in National Labor Relations Board v. FLRA, 952 F.2d 523 (D.C. Cir. 1992) (NLRB v. FLRA), stating:

We adopt the court's decision in NLRB v. FLRA and conclude that an agency is not obligated to provide a union with requested documents containing advice, guidance, counsel, or training materials provided for management officials under section 7114(b)(4) of the Statute unless the union demonstrates a particularized need, as discussed by the court [in NLRB v. FLRA], for such information. Previous inconsistent Authority decisions will no longer be followed.

National Park Service, 48 FLRA at 1160. In NLRB v. FLRA the court held, at 533, n.6, that documents that are strictly intramanagement normally will not be discoverable under section 7114(b)(4)(B) of the Statute. The court also held that such documents would nevertheless be produceable if the union could establish a particularized need for advice, guidance, counsel, or training provided for management. The court further stated at, 533-34:

. . . where the union has no grievable complaint covering information on "guidance," "advice," "counsel" or "training," § 7114(b)(4)(B) normally will not require disclosure. If the union simply wants background information underlying some later decision, and the grievance only concerns objective constraints on agency action, then the predecisional test is probably "unnecessary"--indeed, it also may be irrelevant.

In HHS Washington the Authority, at 69, summarized the court's and its approach to resolving questions concerning the producibility of such documents, stating:

In [National Park Service] the Authority adopted the standard set forth in NLRB v. FLRA for determining when a union has demonstrated a sufficient need for information involving managerial guidance, advice, counsel, or training to require disclosure of that information under section 7114(b)(4)(B) of the Statute. The court, and the Authority, require a union to establish a particularized need for such information. An assessment of that need involves a weighing of the union's asserted need with the "countervailing interest" raised by the agency against disclosure. 952 F.2d at 531-32. To aid in this inquiry, the court stated that a union might establish such a need "where the union has a grievable complaint covering the information." Id. at 532 (emphasis omitted). As an example of such a demonstration, the court posited a situation where a statute or a bargaining agreement "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." Id. at 532-33. The court stated that information might also be disclosable "when the disputed document creates a grievable action." Id. at 533. With regard to the latter example, the court stated that there would be a "strong and valid claim to disclosure" if "the parties' agreement or existing practices make it clear" that requested predecisional materials are used "to determine subsequent disciplinary action . . . ."

Id. at 533. The Union's expressed need for the documents requested herein was to enable it to effectively present its case before an arbitrator. For various reasons, stated above, the information was useful and indeed needed by the Union in its preparation for arbitration and to make prudent decisions with regard thereto. However, as stated above, I find the investigation reports and supporting documents the Union sought from Respondent in its July 7 and July 23, 1993 requests constitute managerial advice, guidance, or counsel within the meaning of section 7114(b)(4)(B) of the Statute as delineated by the circuit court in NLRB v. FLRA and subsequently followed by the Authority. I am constrained to follow the circuit court's decision adopted by the Authority (Member Talkin dissenting) wherein the court engrafted onto section 7114(b)(4)(B), requirements not specifically contained in 7114(b)(4)(B) of the Statute regarding documents encompassing managerial advice, guidance, counsel, or training and imposed additional obligations upon the employees' collective bargaining representative seeking to obtain these documents.

Accordingly, since the Union has not established a "particularized need" for the documents, as defined by the circuit court and adopted by the Authority, I conclude the documents the Union sought were not "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining" within the meaning of section 7114(b)(4)(B) of the Statute, and therefore, Respondent's refusal to furnish these documents did not violate the Statute.

In view of the entire foregoing and the record herein I conclude that by its failure to provide the Union with the information it requested on July 7 and July 23, 1993, in the circumstances herein, Respondent did not violate section 7116(a)(1), (5) and (8) as alleged and I recommend the Authority issue the following:

ORDER

It is hereby ordered that the Complaint in Case No. CH-CA-30849 be, and hereby is, dismissed.

Issued, Washington, DC, January 13, 1995

__________________________
SALVATORE J. ARRIGO
Administrative Law Judge




FOOTNOTES:
(If blank, the decision does not have footnotes.)


Authority's Footnotes Follow:

1. Member Wasserman's dissenting opinion is set forth at the end of this decision.

2. The parties use different terms to refer to this area. According to the Union, the inmate was removed to "segregation." Transcript at 28. The Respondent describes the area as "an isolation cell." Respondent's Exceptions at 3.

3. According to the Judge, 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. The record shows that the Respondent took no disciplinary action against the officer following the investigation. Transcript at 29, 47.

4. The Union's grievance charged the Respondent with violating Article 27, section a.1 of the agreement. Article 27 is entitled "HEALTH AND SAFETY." Section a, in its entirety, provides that:

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; and

2. the second, which affects the safety and health of employees, involves the inherent hazards associated with the normal industrial operations found throughout the Federal Bureau of Prisons.

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.

With respect to the second, the Employer agrees to furnish to employees[] places and conditions of employment that are free from recognized hazards that are causing or are likely to cause death or serious physical harm, in accordance with all applicable Federal laws, standards, codes, regulations and Executive Orders. The Union agrees to fully support and abide by the policies of this program.

Respondent Exh. 1.

5. As of the date of the hearing in this case, the arbitration had been postponed.

6. The record indicates that the correctional officer had been "cleared" prior to the Union's first information request and had returned to work prior to its second request. Transcript at 31.

7. In addition to the OIA report on the correctional officer, the Respondent also referred in its reply to an OIA report on "the Release of an Inmate from Segregation." Id. The Judge found no record evidence of such a report, and none of the parties mentions it further.

8. Although the Judge recommended dismissal of the complaint on these grounds, he also expressly rejected the Respondent's arguments that it need not disclose the information because the Union's grievance was not arbitrable as well as because disclosure was barred by the Freedom of Information Act.

9. Our dissenting colleague refers to the Respondent's testimony on the general point that one of the primary reasons for assigning employees to home duty during the investigation of allegations against them is to protect their safety or the safety of others, and concludes from this testimony that the Union's grievance over safety involved the matter of a correctional officer having been placed on home duty. We are unable to agree with this conclusion because, as noted previously, the Union's grievance does not contend that the allegations against the correctional officer or his placement on home duty were in any way improper.

10. As described in section IV.C.2 of this decision, infra, the Union's testimony at the hearing indicated it believed that the requested information would shed light on the allegations against the correctional officer. In addition to finding that the Respondent had no reason to be aware that these allegations were part of the "arbitration case on the Safety issue," General Counsel Exh. 5 at 2, we note that to the extent reasons offered in a union's hearing testimony were not previously articulated, they generally may not be relied on to establish particularized need. See, e.g., EEOC, 51 FLRA at 258. In the only Authority decision issued after IRS, Kansas City, where such reasons were relied on, Twin Cities, 51 FLRA at 1475-76, the facts revealed that the parties had met to discuss several aspects of the information request prior to the union's filing of the unfair labor practice charge. The Authority found it appropriate to consider testimony on an aspect of the information requested that had not been questioned during those discussions, because "to do otherwise would give undue weight to whether the agency asked or the union answered questions about matters that, unlike other matters that were discussed during the . . . meeting, neither party appeared concerned about at the time of the request." Id., 51 FLRA at 1476. In this case, no basis is asserted, or apparent from the record, for finding that the Union established particularized need based on its testimony concerning the relationship between the information requested and a grievance about the allegations against the correctional officer.

11. The fact that the Judge, after his in camera review, found that the OIA reports tended to show that the Respondent knew the inmate would start a fight if released with other inmates does not reveal anything about the reasons given by the Union for its information requests. Likewise, whether or not the Union knew what the reports actually contained is irrelevant. As the Judge noted, "a union frequently does not know" what a specific document contains. Judge's Decision at 9, n.6. Not knowing what a document contains does not prevent a union from explaining, with specificity, why it needs to know what that document contains. Thus, we do not decide this case based on what the OIA reports might have shown, or on what (if anything) the Union already knew about their contents, but solely on what the Union told the Respondent about its need for information at or near the time it made its requests. As explained above, at no time did the Union draw any connection between the investigation and the light it might shed on the Respondent's decision to transfer the inmate from segregated confinement or the subsequent incident in the recreation area.

12. In reviewing the records in the cited cases, the Authority took into account, where relevant, circumstances surrounding the information request -- including the discussions (or lack thereof) between the parties -- and not solely what the union stated in its written request. For example, the Authority considered the fact that the parties met to discuss and clarify the union's request for information in determining whether the union established a particularized need for one category of information in Twin Cities, 51 FLRA at 1475-76. Consistent with this precedent, we agree with our dissenting colleague that circumstances, like other relevant evidence, are appropriate to consider in evaluating the overall sufficiency of the request. Based upon our careful evaluation of the entire record in this case, however, we are not persuaded that the Union met its burden to articulate, with specificity, why the requested information was necessary within the meaning of Section 7114(b)(4).

13. The decisions in which the approach adopted in IRS, Kansas City has been applied do not, in our view, provide any basis for the concerns expressed in the dissent about an "uneven collective bargaining relationship," a "tilt . . . too far in favor of non-disclosure," or a requirement that unions be so specific that they "run the risk of undermining their role as effective advocates" by revealing their representational strategy. To the contrary, decisions applying IRS/Kansas City confirm that unions are quite capable of establishing particularized need without in any way undercutting their effectiveness as advocates. See, e.g., Scott, 51 FLRA 675. Moreover, although today's decision resolves the narrow question litigated -- whether the agency violated the Statute in declining to provide the information when the Union's requests were made -- it does not prevent the Union from speaking clearly now in requesting the information in the event that it believes it is necessary to pursue the arbitration that, according to the record, has been held in abeyance.

14. In view of our decision, we find it unnecessary to address the Respondent's additional arguments for dismissing the complaint or the General Counse