52:1323(121)CA - - Justice, INS, Northern Region, Twin Cities, MN and National Border Patrol Council, AFGE - - 1997 FLRAdec CA - - v52 p1323
[ v52 p1323 ]
The decision of the Authority follows:
52 FLRA No. 121
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF JUSTICE
IMMIGRATION AND NATURALIZATION SERVICE
NORTHERN REGION, TWIN CITIES, MINNESOTA
NATIONAL BORDER PATROL COUNCIL
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
46 FLRA 1526 (1993)
51 FLRA 1467 (1996)
DECISION AND ORDER ON RECONSIDERATION
April 14, 1997
Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.
I. Statement of the Case
This unfair labor practice (ULP) case is before the Authority on a request for reconsideration filed by the U.S. Department of Justice, Immigration and Naturalization Service, Northern Region, Twin Cities, Minnesota (Respondent). Respondent seeks reconsideration of certain aspects of the Authority's decision in 51 FLRA 1467 (1996).
Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to request reconsideration of an Authority decision. For the reasons set out herein, we conclude that the Respondent has failed to establish that extraordinary circumstances exist. Accordingly, we deny Respondent's request.
II. Twin Cities I, DOJ v. FLRA, and Twin Cities II
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 1526 (1993) (Twin Cities I), the Union requested certain information needed to represent a bargaining unit employee in responding to a proposed removal. The Authority concluded, inter alia, that the Respondent acted improperly by both refusing to provide information and by failing to inform the Union that certain other information did not exist. The Authority thus concluded that the Respondent had violated section 7114(b)(4)(B) of the Federal Service Labor-Management Relations Statute (Statute) and ordered appropriate relief.
On judicial review, the court noted that in Twin Cities I the Authority had acknowledged NLRB v. FLRA, 952 F.2d 523 (D.C. Cir. 1992) (NLRB v. FLRA), "without saying whether it applied[.]" U.S. Department of Justice, Immigration and Naturalization Service, et al. v. FLRA, 39 F.3d 361, 370 (D.C. Cir. 1994) (DOJ v. FLRA). The court pointed out that "none of the parties appears to have framed the case in the terms of" NLRB v. FLRA and stated that it saw "in the record no explanation on behalf of the union regarding the 'necessity' of its receiving each of the requested items" and found "nothing on behalf of the [Respondent] explaining what 'countervailing interests' it had in refusing to disclose." Id. Accordingly, the court remanded the case to the Authority to "analyze anew the union's document request under the principles of NLRB v. FLRA." Id. The court stated: "It is up to the Authority to decide whether the parties may supplement the record in light of that decision [NLRB v. FLRA] and what we said here." Id. In remanding the case, the court vacated the Authority's orders.
In U.S. Department of Justice, Immigration and Naturalization Service, Northern Region, Twin Cities, Minnesota, 51 FLRA 1467 (1996) (Twin Cities II), the Authority issued a decision on remand from the D.C. Circuit. On remand, the Authority noted that in seeking judicial review of the Authority's decision in Twin Cities I, the Respondent had not objected to the Authority's determination that Respondent violated the Statute by failing to notify the Union that certain information sought did not exist. Accordingly, the Authority did not address this issue further, except in connection with its Order and Notice. 51 FLRA at 1468 n.2. The Authority concluded, as a threshold matter, that the record was sufficient to render a decision on the issues before it. Id. at 1471 n.6. The Authority then proceeded to evaluate the Union's information requests in light of the test set forth in Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Kansas City Service Center, Kansas City, Missouri, 50 FLRA 661 (1995) (IRS, Kansas City), wherein the Authority had directly considered the NLRB v. FLRA decision. As a result of this analysis, the Authority determined that the Union had established a particularized need for certain of the information it sought (disciplinary and adverse action records, id. at 1476-79) and had failed to establish its need for other information (Office of Inspector General (OIG) report exhibits, authority, and manual, id. at 1480-82). An Order and Notice reflecting the Authority's determinations in this regard was issued. Id. at 1482-86.
III. Motion for Reconsideration (1)
The Respondent, in asserting that there are extraordinary circumstances justifying reconsideration, claims that the Authority's decision in Twin Cities II is erroneous in three principal respects: first, in finding that the Union established a particularized need for the documents; second, in concluding that the Union, in seeking the documents, was acting as an exclusive representative; and, third, in sanctioning the Respondent for failing to notify the Union that certain memoranda did not exist. Additionally, the Respondent declares that there are two reasons why "this issue is somewhat moot:" (1) the oral response to the proposed removal occurred long ago and a grievance was never filed by the Union; and (2) the Respondent has destroyed the documentation for which the Authority found the Union had established a particularized need and therefore cannot comply with the Authority's Order. The Respondent's arguments on each of these points are further described below.
IV. Analysis and Conclusions
A. Extraordinary Circumstances Warranting Reconsideration
A party seeking reconsideration bears a heavy burden of establishing that extraordinary circumstances exist warranting reconsideration of the Authority's earlier decision. U.S. Department of the Air Force, 375th Combat Support Group, Scott Air Force Base, Illinois, 50 FLRA 84, 85 (1995). Mere disagreement with the Authority or attempts to relitigate conclusions reached by the Authority are insufficient to satisfy the extraordinary circumstances requirement. U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region West, Stockton, California, 48 FLRA 543, 545 (1993).
B. The Authority's Finding of a Particularized Need
The Respondent asserts that the Authority improperly found that the Union established a particularized need for the disciplinary and adverse action records. Specifically, the Respondent raises questions concerning four different aspects of the Authority's determination in this regard.
First, the Respondent asserts that in light of the court's statement that it saw no explanation in the record of the union's necessity for the information, the Authority's decision is an attempt to overturn the court's decision merely because the Authority disagrees with the court. The Respondent asserts that in light of the court's determination that the record did not support a finding of particularized need, the Authority was obliged to reopen the record or dismiss the case. According to Respondent, in choosing not to dismiss the case and in finding that the Union had established a particularized need, the Authority was required to provide the Respondent an opportunity to supplement the record with its countervailing interests against disclosure before reaching a decision. The Respondent claims that such opportunities have been provided the parties in other cases, citing U.S. Army Armament Research, Development and Engineering Center, Picatinny Arsenal, New Jersey, and U.S. Department of the Army Civilian Personnel and Evaluation Agency, Arlington, Virginia, 49 FLRA 77 (1994) (Picatinny Arsenal).
Second, the Respondent maintains that the Authority acted contrary to both NLRB v. FLRA and Authority precedent when it permitted the Union to specify why it needed the information at the ULP hearing on the basis that the Respondent did not interrogate the Union concerning its need for the information at the time of the request.
Third, the Respondent asserts that in concluding that the Union had established a particularized need for the disciplinary and adverse action records, the Authority failed to follow NLRB v. FLRA, Department of Air Force, Scott Air Force Base v. FLRA, 956 F.2d 1223 (D.C. Cir. 1992) (Scott Air Force Base), and IRS, Kansas City. Specifically, Respondent asserts that these decisions place the burden on the union to establish a particularized need for information, in general, and the connection between the uses to which the union will put the information and the union's representational responsibilities, in particular. In this regard, the Respondent claims the Authority erred in two respects: (1) the Union did not indicate "why" it needed to know if the employee in question was being treated differently; and, (2) the Authority improperly shifted the burden to the Respondent to prove that the Union had no particularized need.
Finally, the Respondent claims that the Authority erred to the extent that the Authority's finding of particularized need is premised upon a potential, future hearing or appeal. In making this assertion, the Respondent relies upon Scott Air Force Base for the proposition that in analyzing requests for information, the Authority should only consider the need as of the time of the request. The need in this case was premised upon responding to a proposed action, which had not yet been taken. As such, in the Respondent's view, the information could not have been necessary here, because, at the time of the request, there existed only the potential of a grievance or appeal. Respondent cites Department of Defense, Office of Dependents Schools, 36 FLRA 871 (1990) (DoD, ODS) noting that the Authority has previously denied information requests where the connection between the information and the representational function is both remote and uncertain.
1. The D.C. Circuit Neither Concluded that Particularized Need Could Not Exist on the Record Nor Directed the Authority to Supplement the Record as a Condition to Finding Particularized Need
The D.C. Circuit stated that it saw "in the record no explanation on behalf of the union regarding the 'necessity' of its receiving each of the requested items . . . ." DOJ v. FLRA, 39 F.3d at 370.(2) However, the court left it "to the Authority to decide whether the parties may supplement the record in light of . . . [NLRB v. FLRA] and what we said here." Id. The Authority determined that the record was sufficient to address the issues presented and relied on the fact that no party had requested to supplement the record. Twin Cities II, 51 FLRA at 1471 n.6. As for the Respondent's countervailing interests, the Authority noted that the Respondent had never indicated what those interests were, and, in any event, had not asked the Authority, before or after the court's decision in DOJ v. FLRA, for an additional opportunity to articulate its countervailing interests against disclosure. Id. at 1479 n.11.
The Respondent has failed to establish extraordinary circumstances supporting its request for reconsideration of this issue. First, the court's declaration that it saw no explanation in the record of the Union's need for the information must be considered in light of the court's statements in the preceding sentence that the Authority had acknowledged "without saying whether it applied" NLRB v. FLRA and "none of the parties appears to have framed the case in the terms of [the] [NLRB v. FLRA] decision." DOJ v. FLRA, 39 F.3d at 370. Rather than commenting on the quality and quantity of the Union's articulation of its need, in our view the court was addressing the way in which the need had been framed by the parties and evaluated by the Authority. Second, if the Respondent is correct and the court had decided that the record in its current condition could not support the Union's particularized need for the information, then the court would not have remanded the case for the Authority to "analyze anew the union's document request" and left it "up to the Authority to decide whether the parties may supplement the record in light of that decision." Id. Had the court reached such a conclusive decision, it would have directed the Authority to either dismiss the complaint or to permit further supplementation by either or both parties. Yet, the court gave no such direction. In sum, we find that the court granted the Authority discretion to determine how this matter should be dealt with on remand. As such, the Authority's handling of this issue is in no way inconsistent with the court's remand.
Respondent correctly notes that supplementation was ordered in Picatinny Arsenal; however, Respondent ignores the fact that the agency in that case did what the Respondent in this case has refused to do. Specifically, the agency in Picatinny Arsenal articulated and argued "two vital nondisclosure interests" to both the Administrative Law Judge and the Authority. 49 FLRA at 81. In this case, on the other hand, the Respondent has "never indicated, or even inferred, what its countervailing interests are" and, as the Authority noted, "[i]n view of the Union's expressed willingness to accept, and the Judge's Order to provide, this information in sanitized form, it is difficult to envision what countervailing interests the Respondent would be able to reasonably posit." Twin Cities II, 51 FLRA at 1479 n.11. Respondent's continued refusal, in its Request for Reconsideration, to suggest what its countervailing interest are, not only differentiates this case from Picatinny Arsenal, but also implies that Respondent has no antidisclosure interests.
Moreover, the Respondent is incorrect in asserting that "[t]he Authority's response to all previous remand orders was to remand the case to allow the parties to submit new evidence." Request for Reconsideration at 9-10. For example, in North Germany Area Council v. FLRA, 805 F.2d 1044 (D.C. Cir. 1986), the court was dissatisfied with the Authority's rationale and determination involving a union's request for information under section 7114(b)(4) of the Statute. As a result, the court remanded "the case to the Authority for further explanation or reconsideration of [the] issue." 805 F.2d at 1050. The Authority thereafter issued its decision on remand based on the record before it without further submissions from the parties. Department of Defense Dependents Schools, Washington, D.C. and Department of Defense Dependents Schools, Germany Region, 28 FLRA 202 (1987). See also Army and Air Force Exchange Service (AAFES), Fort Carson, Colorado, 25 FLRA 1060 (1987) on remand from American Federation of Government Employees, Local 1345 v. FLRA, 793 F.2d 1360 (D.C. Cir. 1986).
As the Authority noted in its decision, nothing prevented the Respondent from seeking leave to assert its countervailing interests. Twin Cities II, 51 FLRA at 1479 n.11 (citing U.S. Office of Personnel Management v. FLRA, 905 F.2d 430 (D.C. Cir.1990)). Furthermore, to the extent that the Authority's determination to decide the case on the record before it inhibited the parties' ability to supplement the record, this determination affected both parties -- not just the Respondent. In this regard, the Authority reversed its prior determination, on the record as it existed, and concluded that the Union had failed to establish a particularized need for the Exhibits to the OIG Report as well as the OIG authority and investigative manual. Id. at 1480-82.
2. The Authority Properly Considered Evidence of Particularized Need Offered by Union at the ULP Hearing
In concluding that the Union had established a particularized need for the disciplinary and adverse action records, the Authority took note of testimony offered at the ULP Hearing. Specifically, the Union had explained, for the first time at the ULP hearing, why it needed this information for a 5-year period and for a particular geographic region. However, the Authority determined that notwithstanding the fact that it had refused to consider hearing testimony in other cases, there was ample justification for considering the Union's testimony in assessing the adequacy of the Union's need for information in this case. In support of this determination, the Authority noted that unlike other cases where unions had failed to respond to agency requests for clarification,(3) the Union in this case had been responsive in providing clarification to the Respondent concerning why the Union needed the requested information. Moreover, during a meeting with the Respondent to discuss the Union's information requests, there was no indication that the Respondent raised any question concerning the temporal and geographic scope of the Union's request. Rather, it was not until the ULP hearing that the Union was asked about the scope of its request and at that point the Union witness testified specifically(4) concerning the reasons why it needed the information as requested. In light of all these circumstances, the Authority found it appropriate to consider the Union's explanation of the scope of its request at the ULP hearing. Twin Cities II, 51 FLRA at 1473-76.
The Respondent fails to establish extraordinary circumstances warranting reconsideration of this issue. Rather than departing from precedent, the Authority clearly distinguished this case from other Authority decisions where particularized need was not established because unions had failed to clarify requests for information when agencies raised concerns. Id. at 1475. In this case, Union representatives met with management and explained why they needed the information. Id. The Authority found, contrary to the Respondent's assertions, that the Union's need for the information was clearly communicated to the agency well in advance of the ULP hearing during a meeting with management officials. At this meeting, the Respondent did not question the scope of the Union's request; however, when first asked about this at the ULP hearing, the Union offered specific testimony explaining why the request encompassed a 5-year period for a certain geographic region. Id. Unwilling to "give undue weight to whether the agency asked or the union answered questions . . . neither party appeared concerned about at the time of the request," the Authority determined to consider the Union's rationale, offered at the ULP hearing, concerning the temporal and geographic scope of the information request. Id. at 1476.
The Respondent's arguments constitute nothing more than disagreement with and an attempt to relitigate conclusions reached by the Authority. As such, they are insufficient to satisfy the extraordinary circumstances requirement.
3. The Authority Followed Applicable Precedent in Finding Particularized Need
The Respondent has failed to establish extraordinary circumstances supporting its assertion that the Authority, in finding particularized need, failed to follow applicable judicial and Authority precedent. As for the Respondent's assertion that the Union was obliged to further specify why it needed the information, the Authority's decision noted that "[t]he Union advised the Respondent that the disciplinary records had been requested in order to ensure that Wood received fair and equitable discipline as compared with other employees who had committed similar offenses." Twin Cities II, 51 FLRA at 1470. The Authority also pointed out that Wood sought the Union's assistance for a matter related to his conditions of employment. Id. at 1478. In applying its IRS, Kansas City analytic approach, the Authority concluded this was sufficient specification of both the uses to which the information would be put and connection between the uses and the union's representational responsibilities under the Statute. 51 FLRA at 1472-73; 1478. The Merit Systems Protection Board has consistently recognized the importance of how an employer has treated other employees who committed similar offenses. Dick v. U.S. Postal Service, 52 MSPR 322, 324 (1992), aff'd, 975 F.2d 869 (Fed Cir. 1992) ("Among the factors the Board will look at to determine the reasonableness of the penalty is whether the agency has meted out similar penalties for similar offenses."); Hawkins v. Department of the Navy, 49 MSPR 501, 506 (1991) ("Where an appellant raises an allegation of disparate penalties for like offenses, he must show that a similarly situated employee received a less severe penalty.").
As for the assertion that the Authority shifted the burden to the Respondent to prove that the Union had no particularized need, the Respondent points to the Authority's statement that "[n]o authority is provided, or apparent, for the argument that information establishing such disparate treatment would not also be relevant in an oral reply." Twin Cities II, 51 FLRA at 1478. The statement to which the Respondent adverts does not address the issue of whether the Union established a particularized need for the documents in question. Rather, the quoted text was offered as a concluding reason for the Authority's rejection of the Respondent's claim that the Union was not entitled to the information because the Union was not acting in its capacity as an exclusive representative and because the information sought could only be used in a grievance. Id. As such, the Authority was merely imposing on the Respondent the duty to "direct the Authority's attention, with as much specificity as possible, to the statutes and regulations" that support its position. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982). On concluding that the Respondent had offered no authority supporting its assertion, the Authority rejected the argument.
4. The Authority Did Not Base its Finding of Particularized Need on a Potential, Future Arbitration or Appeal
The Authority rejected the Respondent's assertion that disciplinary records and adverse action records are not relevant in preparing for an oral reply because such information would only concern defenses that could be raised in a grievance. The Authority found instead that evidence of alleged disparate treatment could be submitted by the employee in his oral response. Twin Cities II, 51 FLRA at 1475-77.
In asserting that the Authority premised the Union's particularized need on a future, potential hearing or appeal, the Respondent misconstrues the purpose of the Union's request, the basis for the Authority's decision in this case, and the rationale of the Scott Air Force Base case. Contrary to the Respondent's assertion, the Union's expressed reason for requesting the disciplinary and adverse actions was "to properly respond to the allegations" set forth in the notice of proposed removal. Twin Cities I, 46 FLRA at 1556. This was also referenced as a basis upon which the Authority ordered the information disclosed. Twin Cities II, 51 FLRA at 1478-79. The Union's need for the information at the time of its request is in no way diminished by the Authority's acknowledgment that the agency's proposed removal "ultimately, ripened into a matter that is grievable and arbitrable." Id. at 1478. On the contrary, this is an additional reason why the Union needed the information. Nothing in the Scott Air Force Base decision even suggests that a union is not entitled to information that is necessary to prepare for an oral reply to a proposed removal. Lastly, the DoD, ODS decision, on which the Respondent relies, is not comparable to the case at hand. In that case, the Authority denied a union's information request pertaining to prospective employees because the Authority found the prospective employment to be "both remote and uncertain." DoD, ODS, 36 FLRA at 874. Here, the information sought was to permit the Union to provide representation in connection with an oral reply to an already proposed removal.
The Respondent has raised nothing new and its exception amounts to disagreement with and an attempt to relitigate conclusions reached by the Authority. As such, Respondent's exceptions are insufficient to satisfy the extraordinary circumstances requirement.
C. The Authority Properly Concluded That the Union Was Acting as the Exclusive Representative in Assisting the Employee in Responding to a Proposed Removal
The Respondent reiterates its view that because a union is not required to represent an employee in responding to a proposed removal, the union has no information rights as an exclusive representative when it undertakes such representation. In support of this assertion, Respondent relies upon American Federation of Government Employees, Local 1857, AFL-CIO, 46 FLRA 904 (1992) (AFGE, Local 1857) wherein the Authority concluded that a union had no duty to represent an employee faced with a proposed disciplinary action.(5) The Respondent asserts that because the need for the Union's information request in this case was limited to assisting the employee and made no reference to the unit as a whole, the Union is not entitled to the information under the Statute.
The Respondent is attempting, in its Request for Reconsideration, to relitigate a matter that the Authority has decided. The Authority recognized that a union is not, as an aspect of its duty of fair representation, obliged to represent an employee at an oral reply to a proposed adverse action. However, the Authority went on to note that if a union undertakes such representation, it acts as an exclusive representative and, as such, is entitled to avail itself of its rights under the Statute. Twin Cities II, 51 FLRA at 1478. In Respondent's view, a union's obligations and rights under section 7114 of the Statute are one and the same. The Authority disagreed and squarely rejected the Respondent's argument in this regard by stating: "that a union lawfully could refuse representation does not mean that, if the union undertakes representation, the union is not acting as the exclusive representative and, as such, may not avail itself of its rights under the Statute." Twin Cities II, 51 FLRA at 1478.(6)
D. The Authority Properly Concluded That the Respondent Violated the Statute by Failing to Notify the Union That Certain Memoranda Did Not Exist
The Respondent makes three arguments concerning the Authority's determination that it violated the Statute by failing to inform the Union that certain information did not exist. First, the Respondent claims that it did challenge the Authority's finding in Twin Cities I in this regard. Second, the Respondent asserts that, in any event, the court vacated the Authority's order concerning this finding as well. Third, the Respondent claims that the information that did not exist -- memoranda and agreements between the OIG and the Respondent -- would not have been necessary under the Statute.
1. The Respondent's Earlier Judicial Challenge Did Not Question the Authority's Finding That the Respondent Failed to Notify the Union That Certain Memoranda Did Not Exist
Contrary to the Authority's conclusion that a petition for review was not filed concerning Respondent's failure to notify the Union that certain memoranda did not exist (Twin Cities II, 51 FLRA at 1468 n.2), the Respondent asserts that it did challenge this finding. In support of this claim, Respondent points to its briefs to the Authority and the court wherein it stated that there was "no ULP concerning the Union's document request." Request for Reconsideration at 11-12.
Respondent's broad assertion in its brief to the Authority fails to satisfy the Authority's regulatory requirement that "Exceptions to an Administrative Law Judge's decision shall [s]et forth specifically the questions upon which exceptions are taken[.]" 5 C.F.R. § 2423.27(a)(1).(7) Moreover, and as the Authority noted in its decision, this issue was not specifically raised in the parties' appellate briefs and not directly mentioned by the court in its decision. As such, contrary to Respondent's assertion, this issue has been waived.
2. The Court Did Not Vacate the Authority's Order Concerning Respondent's Failure to Notify the Union That Certain Information Did Not Exist
Respondent claims that even if judicial review of the Authority's decision had not been sought, the court nevertheless vacated all aspects of the Authority's order in this case. According to the Respondent, the court's action necessarily included the Authority's determination concerning the Respondent's failure to notify the union that certain information sought did not exist.
Since the Respondent did not adequately raise this issue to either the Authority or the court, the court would not have jurisdiction, pursuant to section 7123(c), to vacate that aspect of the Authority's order which addressed the Respondent's failure to advise the Union that the information did not exist. Moreover, the court's remand was for the purpose of "analyz[ing] anew the union's document request under the principles of NLRB v. FLRA." DOJ v. FLRA, 39 F.3d at 370. On remand, the Authority would therefore have no reason to revisit the Respondent's failure to advise the Union that the information did not exist, as this finding was distinct from and not affected by the court's remand concerning particularized need or the NLRB v. FLRA decision.
3. Respondent's Failure to Notify the Union That the Information Did Not Exist Violated the Statute Irrespective of the Necessity of the Information
The Respondent points out that the Authority found that the Union failed to establish a particularized need for materials dealing with OIG authority and the relationship between OIG and the Immigration and Naturalization Service. In the Respondent's view, the "non-existent" information -- memoranda and agreements between the OIG and the Respondent -- would have fallen into the same category. Thus, even if the information had existed, the Respondent would not have violated the Statute had it withheld it because the Union could not have established a particularized need for the information.
Respondent's argument has been rejected by the Authority in previous decisions. The Authority has consistently ruled that an agency violates its obligations under the Statute by failing to advise an exclusive representative, in response to an information request, that the information sought does not exist. Veterans Administration, Washington, D.C. and Veterans Administration Regional Office, Buffalo, New York, 28 FLRA 260, 266 (1987). In such cases, the Authority has specifically rejected the contention that the Administrative Law Judge must nevertheless address whether the information is "necessary." Social Security Administration, Baltimore, Maryland and Social Security Administration, Area II, Boston Region, Boston, Massachusetts, 39 FLRA 650, 656 (1991).
E. The Respondent Has Failed to Establish That the Union No Longer Needs This Information and the Case Is, in Any Event, Not Moot
Respondent claims that the dispute which prompted the Union's information request has been resolved without a grievance and therefore the Union no longer needs the information. Respondent also asserts that it only maintains disciplinary records for 3 years, that it was not ordered to maintain these records, and that none of the requested records are still being maintained. Therefore, it is impossible for the Respondent to comply with the Authority's order. Request for Reconsideration at 13.
Respondent's claim that the underlying matter has been resolved is not only unsubstantiated, but also unclear. The Respondent, for example, has not proffered a settlement agreement indicating how the case was resolved. Moreover, even if the employee has no complaint at this point, this would not necessarily moot the Union's information request. Department of Justice v. FLRA, 991 F.2d 285, 289 (5th Cir. 1993) (noting, in reliance upon NLRB v. Raytheon Company, 398 U.S. 25, 27 (1970)), that even when the individual parties resolve the matter that gave rise to the ULP, such cases do not generally become moot because of the potential need for an enforcement decree barring the unfair practice); American Federation of Government Employees, Local 1941 v. FLRA, 837 F.2d 495, 497 n.2. (D.C. Cir. 1988) (unfair labor practice controversy not mooted by employee's death).
As for Respondent's assertion that the documents in question no longer exist, it is important to note that the Union requested disciplinary and adverse actions from January 1985 through November 1990. Twin Cities II, 51 FLRA at 1469. At the ULP hearing in this case, the Respondent testified that it did "not maintain any proposed or decision letters issued prior to November 1987, but acknowledge[d] that it maintains such documents issued after that date." Twin Cities I, 46 FLRA at 1559. Thus, Respondent apparently acknowledges that it knowingly destroyed 3 years-worth of documents directly responsive to both the Union's request and the Authority's Order. The potential import of Respondent's assertion is significant as it flouts both the Statute and the Respondent's obligations thereunder. Cf. Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 72-73 (S.D.N.Y. 1991) (a litigant has a duty to retain documents that it knows, or reasonably should know, are relevant to pending or potential litigation or are the subject of a pending discovery request; sanctions are appropriate if such documents are destroyed); Jamie S. Gorelick et al., Destruction of Evidence § 3.11 at 93 (1989) ("Destruction of evidence is sanctionable when a party knows or reasonably should know that discoverable material is relevant to pending, imminent, or reasonably foreseeable litigation."). Moreover, various provisions of the Federal Records Act (44 U.S.C. § 2902, 3303(a)) only authorize "the disposal of records that are no longer needed by the agency and that do not have 'sufficient administrative, legal, research, or other value to warrant their continued preservation by the Government.'" Armstrong, et al. v. Bush, et al., 924 F.2d 282, 285 (D.C. Cir. 1991).
Notwithstanding Respondent's admission that it has destroyed documents responsive to the Union's request, it would be premature for the Authority to directly address this issue at this time. Like Respondent's assertion that this matter has been resolved, the assertion concerning destruction of the documents is unsubstantiated and unclear.
Rather than addressing the Respondent's assertion at this time, we leave this matter for compliance, where it will be addressed, at least in the first instance, by the General Counsel.
The Respondent's request for reconsideration is denied.
(If blank, the decision does not have footnotes.)
1. The General Counsel did not file a response to the Respondent's Motion for Reconsideration.
2. The Authority, noting the court's statement concerning no explanation by the Union concerning necessity, suggested that the court had not considered a meeting between the parties where the Union more specifically articulated its need. Twin Cities II, 51 FLRA at 1474 n.7.
3. The Authority cited U.S. Department of the Treasury, Internal Revenue Service, Washington, D.C., 51 FLRA 1391, 1395-96 (1996) and U.S. Equal Employment Opportunity Commission, 51 FLRA 248, 257-58 (1995).
4. See Twin Cities II, 51 FLRA at 1474-76 and ULP Transcript at 123-24.
5. In AFGE, Local 1857, the Authority specifically rejected the General Counsel's argument that the exclusive representative's right to information under section 7114(b)(4) of the Statute required the union to represent a bargaining unit employee faced with a proposed disciplinary action and noted that "a union has a right to obtain information that is necessary for it to fulfill its representational functions to the entire bargaining unit." Id. at 912.
6. The United States Court of Appeals for the Tenth Circuit has also rejected the argument that an exclusive representative's section 7114 rights do not apply in statutory appeals: "We are not persuaded that a union's rights under § 7114 for the benefit of all its members are limited by the bounds of its duty of fair representation to an individual employee in the statutory appeal process." Department of Veterans Affairs v. FLRA, 3 F.3d 1386, 1390 n.4 (10th Cir. 1993).
7. In construing the NLRB's identical regulatory requirement (29 C.F.R. § 102.46(b)(1)(i)), such vague exceptions have been held insufficient to put the Board on notice of the grounds for the exception. Parsippany Hotel Management Co. v. NLRB, 99 F.3d 413, 417-18 (D.C. Cir. 1996). See also Elastic Stop Nut Division of Harvard Industries v. NLRB, 921 F.2d 1275, 1284 (D.C. Cir. 1990) (court must determine whether respondent's exceptions placed the Board on notice of what was being questioned); Consolidated Freightways v. NRLB, 669 F.2d 790, 794 (D.C. Cir. 1981) cert. denied, 498 U.S. 817 (1990) ("the critical inquiry is whether the objections made before the Board were adequate to put the Board on notice that the issue might be pursued on appeal").