File 2: Opinion of Chairman Cabaniss
[ v60 p386 ]
Chairman Cabaniss, dissenting in part:
I write separately in dissent on the negotiability determination regarding the second sentence of Proposal 14(f). I disagree with my colleagues as to their interpretation of the law regarding the negotiability of the proposal.
As to the negotiability of the second sentence of Proposal 14(f), I believe that the majority misinterprets our precedent by finding that the right to determine internal security only includes the right to prevent the disclosure of confidential and privileged information. See Majority at 35. Our precedent holds that the right to determine internal security practices encompasses an agency's right to determine the nature and extent of the information concerning an internal investigation which it will disclose and to whom it will disclose that information, irrelevant of whether the information is confidential or privileged. Local 1738, 27 FLRA at 55-56 (citing Local 1300, 18 FLRA at 795-97).
The Authority's early cases regarding disclosure of information concerning investigations relied on the "disclosure of privileged and confidential information." AFGE, AFL-CIO, Nat'l Immigration & Naturalization Serv. Council, 8 FLRA 347, 363 (1982) (proposal giving the union the right to maintain recordings and transcripts of employee interviews concerning investigations inconsistent with the right to determine internal security practices because it would deny the agency its right to prevent the disclosure of confidential and privileged information); NTEU, 7 FLRA 275, 275-77 (1981) (proposal giving union officials clearance to enter all work areas inconsistent with the right to determine internal security practices because it would negate the agency's practice of restricting access so as to prevent the unauthorized disclosure of information; NLRBU, 5 FLRA at 696-97 (proposal allowing union officials and employees to photocopy agency records regarding investigations inconsistent with the right to determine internal security practices because it would give the union access to privileged and confidential materials).
The Authority subsequently modified that precedent and stated "it is irrelevant what information concerning [an] investigation management is required to disclose" and that management's right to determine its internal security practices encompassed the right to determine the "nature and extent of the information concerning an investigation which it will disclose, and to whom it will disclose that information[.]" Local 1300, 18 FLRA at 796-97. See also Local 1738, 27 FLRA at 55-56 (citing Local 1300, the Authority stated that "management's right under section 7106(a)(1) to determine its internal security practices included the right to determine the nature and extent of the information concerning an investigation which it would disclose, and to whom it would disclose that information" and resolved the case without reference to the confidential or privileged nature of the information sought); NTEU, 55 FLRA 1174, 1184 (1999) (The Authority affirmed an ALJ decision where the ALJ, citing Local 1738 and Local 1300, stated that an agency's right to determine its internal security practice included the right to "determine the nature and extent of the information concerning an investigation that it would disclose, and to whom it would disclose that information[,]" without reference to the privileged or confidential nature of the information sought.)
My colleagues state that although the Authority, in Local 1300, announced that the type of information to be disclosed is irrelevant, that case and subsequent cases emphasized the confidential and privileged nature of the information to be disclosed. Majority at 35-36, n.10. The majority explains that in Local 1300, the Authority stated that it has held that "rules and policies pertaining to the disclosure of privileged and confidential information constitute internal security practices within the discretion of management to determine under section 7106(a)(1)." See id. Indeed the Authority did make such a statement, but the majority fails to explain that the Authority did so in the context of explaining its precedent. After setting forth its precedent, the Authority ultimately modified that precedent to include the disclosure of any information regarding internal investigations. I base this conclusion on the Authority's statement that "it is irrelevant what information concerning the investigation management is required to disclose . . . the right to determine the nature and extent of the information concerning an investigation which it will disclose . . . is reserved to management under the Statute." Local 1300, 18 FLRA at 796-97. In addition, in addressing the specific proposal in Local 1300, the Authority stated, "as Section (b) of the [u]nion's proposal would prescribe the conditions under which such information must be disclosed, it directly interferes with management's right to determine the [a]gency's internal security practices and is outside the duty to bargain[.]" See id. at 797. Nothing in the actual determination of that case mentions or emphasizes the privileged and confidential nature of the information the union was requesting.
The majority also relies on Local 2050, for the proposition that an agency's right to determine internal security includes the right to "prevent improper or unauthorized disclosure of privileged or confidential information[.]" [ v60 p387 ] Majority at 35 (citing Local 2050, 36 FLRA at 639). This case does not support the majority's decision. In Local 2050, the Authority failed to fully articulate the standard set out in NTEU, Chapter 153, 21 FLRA 841, on which it relied, when it stated, "[a]n agency's right to determine its internal security practices also includes management action to prevent improper or unauthorized disclosure of privileged or confidential information[.]" [n1] Local 2050, 36 FLRA at 639 (emphasis added). In Chapter 153, the proposal required the agency to provide the union with a summary of allegations regarding non-criminal matters obtained through an agency hotline and did not require the agency to disclose any information regarding an internal investigation. Chapter 153, 21 FLRA at 842. In determining that the proposal was within the duty to bargain, the Authority stated, "[u]nder [the proposal] the [a]gency retains the discretion to determine the timing of the release and the nature of the information that will be disclosed as well as the right to take any action necessary to protect confidential information or sources." Id. at 847. Through the use of "as well as" the Authority clearly sets forth two separate rights - the right to determine the timing and nature of the information that will be disclosed and the right to protect confidential information. As such, that case does not support my colleagues' contention that management's right to determine its internal security is affected only if a proposal would require an agency to disclose confidential or privileged information.
Based upon my review of the precedent, I would find that the second sentence of Proposal 14(f) affects the Agency's right to determine internal security because it would require the Agency to disclose information pertaining to an internal investigation. [n2] Local 1300, 18 FLRA at 796-97.
An inherent aspect of this agency right is the need to assess, on a case-by-case basis, the risks involved regarding the release of a certain piece of information before determining whether its release would or would not compromise or interfere with the investigative process. NTEU, 59 FLRA at 755. See also NTEU, 55 FLRA at 1186 (agency demonstrated a sufficient link between its goal of safeguarding its personnel, property or operations and "its practice of determining case-by-case whether to release [information] before the completion of an investigation.") I believe that the Authority cannot determine, ahead of time and in all instances, if the release of an expected time frame on a monthly basis could compromise the integrity of an investigation; and this becomes an issue because the proposal would not allow the Agency to make a determination on the impact of disclosure of information on a case-by-case basis.
Clearly, what may not be problematic in the facts and circumstances of one investigation could have the opposite effect in the context of different circumstances in another investigation. The facts and circumstances known to an employee under investigation will vary from investigation to investigation. An employee under investigation who finds his or her investigation's timetable being extended after seeing a co-worker taken in for an interview may infer a cause-and-effect relationship from the two arguably insignificant pieces of information. While that may not be true in every circumstance, each case would need to be individually assessed to make that determination, the point made above and by our precedent.
I would also find that the second sentence of Proposal 14(f) does not constitute a procedure within the meaning of § 7106(b)(2) of the Statute. Proposals that require an agency to disclose any information regarding an internal investigation do not constitute negotiable procedures under § 7106(b)(2) of the Statute. See Local 1738, 27 FLRA at 54; Local 1300, 18 FLRA at 796-97. Based on the Authority's precedent, by requiring the Agency to disclose information regarding an ongoing investigation, regardless of the privileged or confidential nature of that information, the proposal does not constitute a procedure within the meaning of § 7106(b)(2) of the Statute. See id.
The Union asserts that the second sentence of Proposal 14(f) constitutes an appropriate arrangement. In analyzing this issue, I use the KANG analysis set forth in the majority opinion. Here, the proposal is intended to benefit those employees who are adversely affected by the Agency's exercise of its right to determine its internal security practices by giving them the peace of mind provided by learning of the status of the investigation on a monthly basis. As such, I would find this to be an arrangement that is sufficiently tailored to aid only those employees affected by the exercise of a management right. However, the benefit, is speculative in nature and extent. See, e.g., NFFE, Local 2015, 53 FLRA at 973 (proposals that address speculative or hypothetical concerns do not constitute arrangements). There is nothing in the record that demonstrates that an employee waiting [ v60 p388 ] for the possible return of his firearm carriage authority would receive a benefit significant or otherwise, from being informed each month that the matter remains under investigation. While it is speculative in nature to conclude that the proposal would result in some perceived peace of mind on the part of an employee under investigation, the intrusion on management's right to determine its internal security practices is real and apparent. In this connection, the relevant language would override the Agency's determination as to what information related to an internal investigation it is willing to release. I would find that this clear intrusion upon the Agency's right to share or not share information about