American Federation of Government Employees v. FLRA, 144 F.3d 85 (D.C. Cir. 1998)


ORAL ARGUMENT SCHEDULED FOR MARCH 6, 1998

No. 97-1355

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2343
                  Petitioner

v.

FEDERAL LABOR RELATIONS AUTHORITY,
                  Respondent
_______________________________



ON PETITION FOR REVIEW OF AN ORDER
OF THE FEDERAL LABOR RELATIONS AUTHORITY




BRIEF FOR THE
FEDERAL LABOR RELATIONS AUTHORITY


               DAVID M. SMITH
                  Solicitor

               JAMES F. BLANDFORD
                  Attorney


               Federal Labor Relations Authority
               607 14th Street, N.W.
               Suite 330
               Washington, D.C.  20424-0001
               (202) 482-6620




ORAL ARGUMENT SCHEDULED FOR MARCH 6, 1998

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES

A.  Parties and amici
    Appearing below in the administrative proceeding
    before the Federal Labor Relations Authority were the U.S. Department of
    Justice, Federal Bureau of Prisons, U.S. Penitentiary, Marion, Illinois and
    American Federation of Government Employees, Local 2343.  The union is the
    petitioner in this court proceeding; the Authority is the respondent.

B.  Rulings under review
    The ruling under review in this case is the Authority's Decision and
    Order in U.S. Department of Justice, Federal Bureau of Prisons, U.S.
    Penitentiary, Marion, Illinois and American Federation of Government
    Employees, Local 2343, Case No. CH-CA-30849 on March 14, 1997.  The
    Authority's decision is reported at 52 F.L.R.A. (No. 115) 1195.

C.  Related Cases
    This case has not previously been before this Court or any other court.
    Counsel for the Authority is unaware of any cases pending before this
    Court which are related to this case within the meaning of Local Rule
    28(a)(1)(C).




TABLE OF CONTENTS

STATEMENT OF JURISDICTION   1

STATEMENT OF THE ISSUE  2

STATEMENT OF THE CASE  2

I.    Nature of the Case  2

II.   Statement of the Facts  3

III.  Proceedings below  6

A.  The ALJ's decision  6

B.  The Authority's decision  7

1.  Analytical framework  8

2.  Application of the framework in this case  9

STANDARD OF REVIEW  12

SUMMARY OF ARGUMENT   13

ARGUMENT   16

THE AUTHORITY PROPERLY CONCLUDED THAT THE   AGENCY EMPLOYER DID NOT COMMIT
UNFAIR LABOR   PRACTICES WHEN IT REFUSED TO FURNISH THE   UNION WITH AN
INVESTIGATIVE REPORT, BECAUSE THE UNION HAD NOT DEMONSTRATED A PARTICULARIZED
NEED FOR THE INFORMATION  16

I.   The particularized need standard  16

A.  Precedent of this Court  16

B.  Authority precedent  17

II.   Local 2343 failed to establish and articulate
a particularized need for the OIA
investigation concerning Officer Francis'
alleged misconduct  19

A.  The acknowledged focus of the union's
information request was a grievance
alleging that releasing inmate Baptiste
into the general prison population violated
the safety and health provisions of the parties'
collective bargaining agreement  19

B.  The data requested by the union consisted
of the OIA investigation and supporting documents
concerning allegations of
misconduct on Officer Francis' part  22

C.  The union failed to articulate to the
Penitentiary how the investigative
reports concerning Officer Francis were required to
prepare for arbitration of
the safety and health issue  24

III.  The union's remaining contentions are without merit  29

A.  This Court's decision in Scott AFB is inapposite  29

B.  The Authority's decision does not place an  undue
burden on the union  31

CONCLUSION  33



ADDENDUM

Relevant portions of the Federal Service Labor-Management
Relations Statute, 5 U.S.C. §§ 7101-7135 (1994 &
Supp. II 1996)   A-1



TABLE OF AUTHORITIES

AFGE Local 2441 v. FLRA, 864 F.2d 178
  (D.C. Cir. 1988)   13, 29

Bureau of Alcohol, Tobacco and Firearms v. FLRA,
  464 U.S. 89 (1983)   13

Chevron, U.S.A., Inc. v. Natural Resources Defense
  Council, Inc.,  467 U.S. 837 (1984)   12

Department of the Air Force, Scott Air Force Base v. FLRA,
  104 F.3d 1396 (D.C. Cir. 1997)   15, 29, 30, 32

EEOC v. FLRA, 744 F.2d 842 (D.C. Cir. 1984), cert. dismissed,
  476 U.S. 19 (1986)   12

Fort Stewart Sch. v. FLRA, 495 U.S. 641 (1990)   12

*National Labor Relations Board v. FLRA, 952 F.2d 523
  (D.C. Cir. 1992)   passim

National Treasury Employees Union v. FLRA, 721 F.2d 1402
  (D.C. Cir. 1983)   12, 13, 29

Overseas Educ. Ass'n v. FLRA, 858 F.2d 769
  (D.C. Cir. 1988)   12

Peoples Gas System, Inc. v. NLRB, 629 F.2d 35
  (D.C. Cir. 1980)   13

State of New York v. Reilly, 969 F.2d 1147
  (D.C. Cir. 1992)   28

U.S. Dep't of Justice v. FLRA, 991 F.2d 285   17, 18

U.S. Dep't of Veterans Affairs v. FLRA,
  1 F.3d 19 (D.C. Cir. 1993)   17, 18

*U.S. Dep't of Justice, Bureau of Prisons,
  Allenwood Federal Prison Camp, Montgomery,
  Pennsylvania, 988 F.2d 1267 (D.C. Cir. 1993)   17, 18, 25, 28

* Cases or authorities chiefly relied upon are marked by asterisks
TABLE OF AUTHORITIES
(Continued)



DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY

Department of the Air Force, Scott Air Force Base,
  Illinois, 51 F.L.R.A. 675 (1995)   30, 32

Internal Revenue Service, Austin District Office
  Austin Texas, 51 F.L.R.A. 1166 (1996)   27, 31, 32

*Internal Revenue Service, Washington, D.C. and
  Internal Revenue Service, Kansas City Service
  Center, Kansas City, Missouri, 50 F.L.R.A. 661
  (1995)   passim

National Park Service, National Capital Region,
  United States Park Police, 48 F.L.R.A. 1151 (1993)    18

Social Security Administration, Dallas Region,
  Dallas, Texas, 51 F.L.R.A. 1219 (1996))   passim

U.S. Department of Justice, Immigration and
  Naturalization Service, Northern Region,
  Twin Cities, Minnesota, 51 F.L.R.A. 1467 (1996)   32

U.S. Department of the Treasury, Internal Revenue Service,     Washington, D.C.
and U.S. Department of the Treasury,
  Internal Revenue Service, Oklahoma City District,
  Oklahoma City, Oklahoma, 51 F.L.R.A. 1391 (1996)   25, 26



STATUTES

Federal Service Labor-Management Relations Statute,
  5 U.S.C. §§ 7101-7135 (1994 & Supp. II 1996)  1
  5 U.S.C. § 7105(a)(2)(G)  1
  5 U.S.C. § 7106  4
  5 U.S.C. § 7114(b)(4)  passim
  5 U.S.C. § 7114(b)(4)(B)  7, 16
  5 U.S.C. § 7116(a)(1)  2
  5 U.S.C. § 7116(a)(5)   2
  5 U.S.C. § 7116(a)(8)   2
  5 U.S.C. § 7123   2
  5 U.S.C. § 7118   2
  5 U.S.C. § 7123(a)  2
  5 U.S.C. § 7123(c)   12, 29
  706(2)(A)   12



GLOSSARY


AFGE - American Federation of Government
Employees, AFL-CIO

Allenwood Prison - U.S. Dep't of Justice, Bureau of
Prisons, Allenwood Federal Prison Camp, Montgomery,
Pennsylvania, 988 F.2d 1267 (D.C. Cir. 1993)

ALJ - Administrative Law Judge

Br. - Brief

Bureau - Bureau of Prisons

FOIA  - Freedom of Information Act

IRS, Austin - Internal Revenue Service, Austin
District Office, Austin Texas, 51 FLRA 1166 (1996)

IRS, Kansas City - Internal Revenue Service, Washington,
D.C. and Internal Revenue Service, Kansas City Service Center,
Kansas City, Missouri, 50 FLRA 661 (1995)

IRS, Oklahoma City - U.S. Dep't of the Treasury, Internal
Revenue Service, Washington, D.C. and U.S. Dep't of the
Treasury, Internal Revenue Service, Oklahoma City District,
Oklahoma City, Oklahoma, 51 FLRA 1391, (1996)

JA - Joint Appendix

Justice v. FLRA - U.S. Dep't of Justice v. FLRA,
991 F.2d 285, (5th Cir. 1993)

Local 2343 - The American Federation of Government
Employees, Local 2343

National Park National Park Service, National Capital
Service - Region, United States Park Police, 48 FLRA 1151 (1993)

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

OIA - Office of Internal Affairs at the Bureau of Prisons

Penitentiary - U.S. Department of Justice, Federal
Bureau of Prisons, U.S. Penitentiary, Marion, Illinois

Scott AFB - Department of the Air Force, Scott Air
Force Base, Illinois, 51 FLRA 675, 677 (1995), enf'd 104 F.3d
1396 (D.C. Cir. 1997)

Scott AFB v. FLRA - Department of the Air Force, Scott Air
Force Base v. FLRA, 104 F.3d 1396 (D.C. Cir. 1997)

Statute - Federal Service Labor-Management
Relations Statute, 5 U.S.C. §§ 7101-7135

ULP - Unfair Labor Practice

Union - The American Federation of Government
Employees, Local 2343

VA v. FLRA - U.S. Dep't of Veterans Affairs v. FLRA,
1 F.3d 19, 23 (D.C. Cir. 1993)




ORAL ARGUMENT SCHEDULED FOR MARCH 6, 1998

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 97-1355


_______________________________

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2343,
                    Petitioner

v.

FEDERAL LABOR RELATIONS AUTHORITY,
                    Respondent
_______________________________



ON PETITION FOR REVIEW OF AN ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY




BRIEF FOR THE
FEDERAL LABOR RELATIONS AUTHORITY

STATEMENT OF JURISDICTION

  The final decision and order under review in this case was issued by the
  Federal Labor Relations Authority (Authority) in U.S. Department of Justice,
  Federal Bureau of Prisons, Marion, Illinois, 52 FLRA 1195 (1997).  The
  Authority exercised jurisdiction over the case pursuant to section 7105(a)
  (2)(G) of the Federal Service Labor-Management Relations Statute, 5 U.S.C.
  §§ 7101-7135 (1994 & Supp. II 1996) (Statute).[1]
  This Court has jurisdiction to review the Authority's decisions and orders
  pursuant to section 7123(a) of the Statute.  The American Federation of
  Government Employees, Local 2343 ("Local 2343" or "union") filed a petition
  for review within the 60-day time limit provided by 5 U.S.C. § 7123.

STATEMENT OF THE ISSUE

  Whether the Authority properly concluded that the agency employer did not
  commit unfair labor practices when it refused to furnish the union with an
  investigative report, because the union had not demonstrated a
  particularized need for the information.

STATEMENT OF THE CASE

I.  Nature of the case
  This case arose as an unfair labor practice (ULP) proceeding under section
  7118 of the Statute and involves an Authority adjudication of a complaint
  based on charges filed by Local 2343.  The complaint alleged that the U.S.
  Department of Justice, Federal Bureau of Prisons, U.S. Penitentiary, Marion,
  Illinois (Penitentiary) violated section 7116(a)(1), (5), and (8) of the
  Statute when it failed to provide Local 2343 with information concerning an
  investigation of a bargaining unit employee conducted by the Office of
  Internal Affairs (OIA) of the Federal Bureau of Prisons (Bureau).  The
  Authority dismissed the complaint, finding that Local 2343 had not
  demonstrated the required particularized need for the information.
  Local 2343 has petitioned this Court for review of the Authority's order
  dismissing the complaint.
II.  Statement of the Facts
  The American Federation of Government Employees, AFL-CIO (AFGE) is the
  exclusive collective bargaining representative of a nationwide bargaining
  unit of the Bureau's employees (JA 85).[2]  Local 2343 is the agent of AFGE
  for the purpose of representing employees at the Penitentiary, an activity
  of the Bureau (id.).
  On February 19, 1993, a prison inmate named Baptiste, who had been
  transferred the day before from segregated confinement into the general
  prison population, was released into the prison's recreation area with
  approximately 17 other inmates.  Baptiste immediately confronted another
  inmate in a fighting stance.  Several correctional officers, including
  Officer Aubrey Francis, removed Baptiste to another area of the prison.
  Baptiste resisted the officers' attempts to remove him and had to be
  restrained (JA 28-29).
  Subsequently, Officer Francis was accused by a supervisory corrections
  officer of using excessive force while transporting Baptiste from the
  recreation area.  The allegation of prisoner abuse was referred to the OIA
  and Officer Francis was placed on home duty pending an investigation (JA
  29).[3]
  On March 9, 1993, Local 2343 filed a grievance alleging that the
  Penitentiary had been warned by prison staff that inmate Baptiste would
  start a fight if he were released into the recreation area, and that by
  releasing the inmate the Penitentiary had endangered the lives of prison
  staff and other inmates in violation of the health and safety provisions of
  the parties' collective bargaining agreement (JA 47-49).  The grievance
  stated that the Penitentiary's actions "force[d] staff into a position of
  having to fight an inmate when there was no need" (JA 48).
  The grievance alleged the Penitentiary's conduct violated Section a.1. of
  the "Health and Safety" provision of the parties' negotiated collective
  bargaining agreement (JA 47).  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 (id.).  As relevant
  here, the 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.
(JA 5-6 n.4).
  On March 26, 1993, the Penitentiary denied the grievance, asserting in
  essence that its decision to release Baptiste from segregated confinement
  was justified (JA 50).  In response, the union invoked arbitration on April
  7, 1993 (JA 51).
  On July 7, 1993 the Union requested that the Penitentiary 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" (JA 52).  The request indicated the
  information was being sought to prepare for the arbitration of the grievance
  then scheduled for August 4 and 5, 1993 (id.).
  Not receiving a response from the Penitentiary, Local 2343 submitted a
  second request on July 23, 1993, asking 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 Officer Francis (JA 57).  Local 2343 clarified that
  "[t]his information is needed by the Union to prepare itself for the up
  coming [sic] arbitration case on the Safety issue" (JA 55).  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" (JA 56).
  The Penitentiary responded on July 29, 1993, refusing to provide the union
  with the information it requested (JA 58).  The response, noting that the
  union had requested a copy of the OIA investigative report on the Officer
  Francis' alleged abuse of Baptiste, advised the union that 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" (id.).  The Penitentiary also stated that since the
  investigation was conducted by OIA, OIA was in possession of all other
  materials (id.).
  On August 12, 1993, the union filed ULP charges over the Penitentiary's
  refusal to provide the requested information (JA 65).[4]   The union
  continued to request the information at various levels of the Bureau, but it
  has never been provided.[5]
III.  Proceedings below
  A.  The ALJ's decision
  The case was first heard by an Authority Administrative Law Judge (ALJ).  In
  addition to receiving testimony, the ALJ conducted an in camera examination
  of the OIA report on Officer Francis, along with a second report on an
  allegedly false statement given by another officer during the OIA
  investigation of Officer Francis (JA 34-35).  The ALJ found that the first
  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 Baptiste was a volatile individual" (JA 35-36).
  The ALJ found that the second report tended to support "the Union's
  allegation that [the Penitentiary] was fully aware that Baptiste would start
  a fight" upon being released into the recreation area (JA 36).
  The ALJ 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 the
  information constituted "managerial advice, guidance, or counsel to [the
  Penitentiary] concerning the matters under investigation within the meaning
  of section 7114(b)(4)(B) of the Statute" (JA 38).  The ALJ found that the
  union had failed to establish a particularized need for the reports and
  concluded, therefore, that the Penitentiary's refusal to disclose them or
  their supporting documentation did not violate the Statute (JA 38-39).[6]
  B.  The Authority's decision
  In a 2-1 decision, the Authority dismissed the ULP complaint, finding that
  the union was required to demonstrate a particularized need for the
  information and that it had failed to do so.
    1.  Analytical framework
  The Authority first reviewed its relevant precedent issued subsequent to the
  ALJ's decision.  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), the Authority held 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" (JA 10, quoting 50 FLRA at 669).  Accordingly, the
  Authority required the union in this case 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 (JA 10-11).
  The Authority noted that IRS, Kansas City held that a union requesting
  information under section 7114(b)(4) of the Statute must articulate, with
  specificity, the uses to which the information will be put and why the
  information is required in order for the union to adequately discharge its
  representational functions (JA 11).  Further, the Authority stated 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 (citing Social Security Administration, Dallas Region,
  Dallas, Texas, 51 FLRA 1219, 1223-24 (1996) (SSA, Dallas)) (id.).
    2.  Application of the framework in this case
  Applying this framework in the instant case, the Authority found that the
  union had not demonstrated a particularized need for the requested
  information and, therefore, concluded that the Penitentiary had not violated
  the Statute by refusing to furnish the information.  The Authority noted
  that on both occasions when Local 2343 requested the information developed
  by the OIA investigation, the union's only explanation was its conclusory
  assertion that it needed the information to prepare for arbitration of its
  previously filed grievance (JA 11).  Because this assertion did not, on its
  own, meet the standard established by IRS, Kansas City, the Authority found
  it appropriate to examine the grievance itself to determine whether the
  Union's requests were sufficient to permit the Respondent to make a reasoned
  judgment about its obligation to disclose the information (id.).
  In examining the grievance for this limited purpose, the Authority noted
  that the union testified at the hearing that the grievance raised two
  separate issues: "the fact that [Officer Francis] was being put on home-duty
  status," and the "health and safety issue" resulting from the inmate's
  release into the recreation area (JA 12; 93).  With respect to the first
  issue -- the correctional officer's placement on home duty -- the Authority
  found that the Penitentiary had no reason to know that issue was part of the
  arbitration for which the Union requested information (JA 12).  As to the
  second issue -- the effect on health and safety of the inmate's release into
  the recreation area -- the Authority concluded that the union never
  explained why it needed the information developed by the OIA investigation
  of Officer Francis in order to show that Baptiste's release adversely
  affected health and safety (id.).
  Concerning the issue of Officer Francis' assignment to home duty, the
  Authority noted that the grievance only mentioned his placement on home duty
  as a consequence of the incident involving Baptiste (JA 12).  The Authority
  found that the grievance did not contest the home-duty assignment, nor did
  it address the allegations against Officer Francis.  Further, the Authority
  noted that the grievance sought no remedy with respect to Officer Francis
  and the Authority pointed out that prior to the information request, the
  officer had been cleared of the allegations against him (JA 12-13).
  Moreover, the Penitentiary's response to the grievance, which addressed only
  the propriety of releasing Baptiste from segregated confinement and did not
  even mention Officer Francis, confirmed that the grievance was limited to
  the effect on health and safety.  Thus, the Authority concluded that neither
  the union's information request, nor the grievance itself provided the
  Penitentiary reason to be aware that the allegations against Officer Francis
  and his placement on home duty were at issue in the arbitration (JA 10).
  In contrast, the Authority found that both parties clearly understood that
  the issue of whether the Penitentiary had endangered health and safety by
  improperly releasing Baptiste into the recreation area was raised in the
  grievance (JA 14).  However, according to the Authority, the Union at no
  time explained why it needed the information from the OIA investigation into
  the correctional officer's conduct or what it planned to do with that
  information concerning its grievance over health and safety.  The Authority
  found nothing in the record which demonstrated the connection between the
  investigation of Officer Francis' alleged misconduct and arbitrating the
  health and safety issue in the Union's grievance.  In this regard, the
  Authority noted that even the union's testimony at the hearing indicated
  only that it sought the investigation material in order to discover "exactly
  what happened . . .  exactly who has been charged [and] why they were
  charged[,]" and not information about Baptiste's release from confinement
  (JA 14; 97).  The Authority concluded that the union had not properly
  articulated its need for the OIA report to prepare for the arbitration of
  the safety and health issue (JA 14).
  Finally, the Authority distinguished this case from others where it had
  found that a union established a particularized need for information in
  order to discharge its representational responsibilities because in those
  cases the record established that the union had communicated to the agency
  why it needed certain information.  In contrast here, the Authority found
  that Local 2343 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 over the safety and health issue (JA 16-17).
  In conclusion, the Authority held that the record 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.  Accordingly, the ULP complaint was
  dismissed (JA 18).[7]

STANDARD OF REVIEW

  The standard of review of decisions of the Authority is narrow:  Authority
  action shall be set aside only if "arbitrary, capricious, an abuse of
  discretion, or otherwise not in accordance with law[.]"  5 U.S.C. §§ 7123(c)
  and 706(2)(A). Overseas Educ. Ass'n v. FLRA, 858 F.2d 769, 771-72 (D.C. Cir.
  1988); EEOC v. FLRA, 744 F.2d 842, 847 (D.C. Cir. 1984), cert. dismissed,
  476 U.S. 19 (1986).  Under this standard, unless it appears from the Statute
  or its legislative history that the Authority's construction of its enabling
  act is not one that Congress would have sanctioned, the Authority's
  construction should be upheld.  See Chevron, U.S.A., Inc. v. Natural
  Resources Defense Council, Inc., 467 U.S. 837, 844 (1984).  See also Fort
  Stewart Sch. v. FLRA, 495 U.S. 641 (1990).
  Further, factual findings of the Authority that are supported by substantial
  evidence on the record as a whole are conclusive.  5 U.S.C. § 7123(c);
  National Treasury Employees Union v. FLRA, 721 F.2d 1402, 1405 (D.C. Cir.
  1983) (NTEU v. FLRA).  The Authority is entitled to have reasonable
  inferences it draws from its findings of fact not be displaced, even if the
  court might have reached a different view had the matter been before it de
  novo.  See AFGE Local 2441 v. FLRA, 864 F.2d 178, 184 (D.C. Cir. 1988) (AFGE
  Local 2441); see also Peoples Gas Sys., Inc. v. NLRB, 629 F.2d 35, 42 (D.C.
  Cir. 1980).
  Finally, as the Supreme Court has stated, the Authority is entitled to
  "considerable deference when it exercises its 'special function of applying
  the general provisions of the [Statute] to the complexities' of federal
  labor relations."  Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S.
  89, 97 (1983).

SUMMARY OF ARGUMENT

I.  Applying the standards first enunciated in this Court's decision in NLRB v.
FLRA, and further developed in the Authority's IRS, Kansas City decision, the
Authority properly determined that Local 2343's request for data developed in
the investigation of Officer Francis was insufficient to establish a
particularized need for the information.  Under IRS, Kansas City, a union
requesting information under section 7114(b)(4) of the Statute must inform the
agency employer, with specificity, the uses to which the information will be put
and why the information is required in order for the union to adequately
discharge its representational functions.
II.  In this case, the union's requests for information stated only that it
needed the information to prepare for arbitration of a previously-filed
grievance.  It is well established that such conclusory statements are
insufficient to demonstrate the requisite particularized need.
  The Authority's examination of the grievance referenced in the information
  request revealed no further grounds for concluding that the Penitentiary was
  adequately informed of the union's need for the information.  In this
  regard, the grievance filed by the union, and the agency's response, clearly
  indicate that the grievance concerned the safety and health implications of
  the Penitentiary's decision to release inmate Baptiste into the general
  prison population.  The grievance cannot be reasonably construed to concern
  subsequent events, including the prisoner abuse allegations against Officer
  Francis and his assignment to home duty.
  On the other hand, the information requested by the union consisted solely
  of the OIA reports and supporting data developed in the investigation into
  the alleged prisoner abuse by Officer Francis.  Nothing in the record
  demonstrates that the union ever articulated how these investigations would
  be necessary to prepare for the arbitration of the grievance over the safety
  and health implications of the Penitentiary's decision to release inmate
  Baptiste.
  Nor is the need "self-evident" as claimed by the union.  The union has
  neither shown that the need is self-evident nor has it cited authority of a
  rationale for the existence of a "self-evident" exception to the requirement
  that the union specifically articulate its need for information.
III.  The union's arguments in brief provide no other reason why the
Authority's decision should not be affirmed.  Contrary to the union's
suggestions, the decision in this case is consistent with other decisions of
this Court and the Authority.  Although the union correctly cites this Court's
decision in Scott AFB v. FLRA for the proposition that information may be
necessary even where it does not support the position espoused by the union,
that case fails to advance the union's position here.  The basis for the
Authority's decision in this case was that the union had failed to meet its
burden of articulating the necessity for the information, not that the
information would fail to support the union's litigation position in
arbitration.  In any event Scott AFB v. FLRA is distinguisable from this case
because as the Court found, the union in Scott AFB v. FLRA adequately
articulated its particularized need.
  Finally, the Authority's particularized need standard does not impose an
  undue burden on unions.  Contrary to Local 2343's suggestion, the Authority
  has never required a union to detail how the specific content of a document
  will be used by the union where the content is unknown, nor does it do so
  here.  The Authority requires only that the union articulate how the
  information will function in the performance of the union's representational
  activities.  For example, where a union is representing an employee who is
  subject to discipline for misconduct, and it requests data relevant to
  discipline of other employees, the Authority has found a particularized need
  where the union has stated that it needs to compare disciplinary sanctions
  to determine the appropriateness of the penalty imposed on the represented
  employee.  In such a case, the union need not, and normally does not, know
  the specific content of the documents requested, i.e., whether previous
  disciplinary actions are more or less harsh than the current case.
  The problem for the union in this case was that it offered virtually no
  explanation as to why it needed the information. Accordingly, the Authority
  properly found that it had not met its burden of articulating its
  particularized need for the information.

ARGUMENT

THE AUTHORITY PROPERLY CONCLUDED THAT THE AGENCY EMPLOYER DID NOT COMMIT UNFAIR
LABOR PRACTICES WHEN IT REFUSED TO FURNISH THE UNION WITH AN INVESTIGATIVE
REPORT, BECAUSE THE UNION HAD NOT DEMONSTRATED A PARTICULARIZED NEED FOR THE
INFORMATION

I.  The particularized need standard
  A.  Precedent of this Court
  In NLRB v. FLRA, this Court determined that pursuant to section 7114(b)(4)
  (B), unions are entitled to information that is "necessary" -- not merely
  relevant -- to subjects within the scope of collective bargaining.  952 F.2d
  at 531.  Unions can obtain disclosure of such information only if they can
  demonstrate a particularized need and no countervailing anti-disclosure
  interests outweigh the union's need.  952 F.2d at 531-32.  NLRB v. FLRA
  concerned a union request for predecisional intramanagement communications.
  952 F.2d at 525.
  In subsequent cases, this Court further developed, clarified, and
  broadened the concept of "particularized need."  In United States Dep't
  of Justice, Bureau of Prisons, Allenwood Federal Prison Camp,
  Montgomery, Pennsylvania v. FLRA, 988 F.2d 1267 (D.C. Cir. 1993)
  (Allenwood Prison Camp v. FLRA), the Court required the union to
  demonstrate a particularized need for information other than
  predecisional "intramanagement guidance."  The Court concluded that the
  Statute does not distinguish between "predecisonal, deliberative" data
  from other sorts of information.  988 F.2d at 1270.  The Court found the
  necessity requirement of section 7114(b)(4) of the Statute to be
  "uniform."  Id.  Further, the Court clarified that it was the union's
  burden to properly articulate its "particularized need," noting that a
  "mere assertion that it needs data to process a grievance" does not
  suffice to guarantee access to data.  988 F.2d at 1271; see also U.S.
  Dep't of Veterans Affairs v. FLRA, 1 F.3d 19, 23 (D.C. Cir. 1993) (VA v.
  FLRA) ("This court's decisions require a showing by the union of
 'particularized need[.]'").[8]
  B.  Authority precedent
  On remand from NLRB v. FLRA, the Authority agreed that a union must
  establish a particularized need as defined by the Court when seeking
  information that can be characterized as intramanagement guidance.  National
  Park Service, National Capital Region, United States Park Police, 48 FLRA
  1151 (1993) (National Park Service).  In IRS, Kansas City, after noting this
  Court's decisions in Allenwood Prison Camp v. FLRA and VA v. FLRA, the
  Authority determined that the purposes of the Statute would not be served by
  establishing different approaches based on the type of information requested
  and adopted a particularized need standard for all information requests
  regardless of the type of information sought.  50 FLRA at 668-69.
  IRS, Kansas City also provided the Authority an opportunity to further
  explain how the particularized need standard would be applied.  The
  Authority first clarified that "particularized need" referred not to a
  "heightened level of need" for certain documents, but rather to the
  specificity required in the union's showing of need in their request for
  data under section 7114(b)(4) of the Statute.  50 FLRA at 669 n.11.  A
  particularized need is demonstrated when the union "articulate[s] with
  specificity, why it needs the requested information, including the uses to
  which the union will put the information and the connection between those
  uses and the union's representational responsibilities under the Statute."
  50 FLRA at 669.  The union must show that the information is "required for
  the union to adequately represent its members."  50 FLRA at 669-70 (citing
  Justice v. FLRA, 991 F.2d at 290).
  The burden for articulating a particularized need rests on the union.  50
  FLRA at 670.  A request for information satisfies this burden only where it
  is sufficient to permit an agency to make "a reasoned judgment" as to
  whether the information is necessary within the scope of section 7114(b)(4)
  of the Statute. Id.  On the other hand, a request need not be so specific as
  to reveal a union's strategies or compromise the identity of potential
  grievants.  50 FLRA at 670 n. 13.
II.  Local 2343 failed to establish and articulate a particularized need for the
OIA investigation concerning Officer Francis' alleged misconduct
  A.  The acknowledged focus of the union's information request was a
  grievance alleging that releasing inmate Baptiste into the general prison
  population violated the safety and health provisions of the parties'
  collective bargaining agreement
  Both the union's initial request for information (JA 52) and its follow-up
  request (JA 54) cite as a justification only that the information was
  necessary to prepare for a scheduled arbitration hearing.  As is well-
  established, such conclusory statements are insufficient by themselves to
  establish a particularized need.  See IRS, Kansas City, 50 FLRA at 670.
  However, since the request clearly referenced a specific grievance
  arbitration case, the Authority properly looked beyond the face of the
  information request and considered the grievance referenced therein.
  The union filed a grievance over an alleged violation of the safety and
  health provisions of the parties' collective bargaining agreement.  See JA
  at 47-49.  The grievance describes in detail the events leading up to inmate
  Baptiste's release from segregated confinement into the general prison
  population, specifically his release into the recreation area where he
  immediately started a fight with another inmate.  JA 47-48.  The relevant
  collective bargaining provision obligates the Penitentiary to minimize the
  inherent hazards connected with the supervision of inmates.  The grievance
  alleges that prison management knew that a fight would develop and thereby
  management "force[d] staff into the position of having to fight an inmate
  where there was no need."  JA 48.
  As the Authority found, the grievance did not concern any allegations
  against Officer Francis or his assignment to home duty.  In that regard, the
  grievance's sole reference to Officer Francis noted only that as a
  consequence of the incident resulting from Baptiste's release, one officer
  was injured and another was placed on home duty.[9]  JA 48.  However, the
  grievance does not further discuss the injury, or question the reason for or
  the propriety of the assignment to home duty.  The grievance neither
  identifies the reason for the home-duty assignment nor questions the
  propriety of the assignment.  Further, as specific remedies the union
  requested an investigation of all supervisors involved in the incident and
  the transfer of certain specified supervisors named in the grievance.  No
  remedy was requested with respect to the home-duty assignment.  Accordingly,
  it is evident from the grievance document that the union was challenging
  only the Penitentiary's determination to release Baptiste from segregated
  confinement and not the allegations against Officer Francis nor his
  subsequent assignment to home duty.
  Moreover, Penitentiary management interpreted the grievance as concerning
  only the safety and health issue raised by releasing Baptiste from
  segregated confinement.  In its response characterizing the grievance as
  "concerning health and safety," the Penitentiary addressed only the
  propriety of Baptiste's release and did not mention the subsequent
  allegations against Officer Francis.  JA 50.  When it invoked arbitration,
  the union stated that the Penitentiary's rejection of the grievance "was not
  for just and sufficient cause" and that "all supervisors involved should be
  given adverse action."  JA 51.  The union did not object to the fact that
  management's response limited the scope of the grievance to the propriety of
  Baptiste's release.[10]
  The record is clear that the grievance concerned only management's
  determination to release Baptiste from segregated confinement and that
  neither the subsequent allegations of prisoner abuse against Officer Francis
  nor the propriety of his assignment to home duty were to be arbitrated.[11]
  Accordingly, the only need the union articulated for the information
  requested related to management's decision to release Baptiste from
  segregated confinement.  As we demonstrate below, the union at no time
  explained why it needed the OIA investigation into Officer Francis' alleged
  misconduct to prepare for arbitration of the safety and health issue.
  B.  The data requested by the union consisted of the OIA investigation and
  supporting documents concerning allegations of misconduct on Officer
  Francis' part
  The most detailed request for information was the union's follow-up request
  dated July 23, 1993.[12]  There the union specifically requested:
  [1]  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.[13]
  [2]  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.
  [3]  Any final reports written by the S.I.S. department at USP., Marion,
  Ill., concerning this incident.
  [4]  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.
JA 57 (emphasis added).  Each of the paragraphs of the union's request
references the incident concerning Officer Francis.  It is reasonable therefore
to conclude, as the Penitentiary did, that the union's request was for data
developed in investigating the conduct of Officer Francis.  Management's formal
denial of the union's request confirms its understanding.  There the
Penitentiary stated, "Specifically, you [the union] requested a copy of an
Office of Internal Affairs investigation of Physical Abuse of an Inmate,
(subject: Aubrey Francis, Correctional Officer), at USP Marion."[14]  JA 58.
Significantly, the union has never claimed that its request was broader than
that. In that regard, the ULP complaint issued by the Authority's General
Counsel states that "AFGE Local 2343 requested the [Penitentiary] to furnish
data pertaining to the Office of Internal Affairs investigation of bargaining
unit employee, Aubrey Francis."  JA 42.
  C.  The union failed to articulate to the Penitentiary how the investigative
  reports concerning Officer Francis were required to prepare for arbitration
  of the safety and health issue
  As discussed above, the record in this case shows that the information
  requested consisted of OIA reports and related materials arising from the
  investigation of Officer Francis.  The union's stated purpose in requesting
  the information was to prepare for the arbitration of a previously-filed
  grievance, which alleged that the Penitentiary violated the safety and
  health provisions of the collective bargaining agreement when it released
  inmate Baptiste from segregated confinement into the general prison
  population.  However, applying the standard first enunciated in IRS, Kansas
  City, the Authority properly found that the union had not articulated a
  particularized need for the information requested and therefore, the
  Penitentiary was not obligated to furnish the information.[15]
  The union's information requests cite only the general need to prepare for
  arbitration.  As this Court emphasized, bare and conclusory assertions such
  as a "mere assertion that it needs data to process a grievance" are
  insufficient to establish particularized need.  Allenwood Prison Camp v.
  FLRA, 988 F.2d at 1271.  In following this Court's admonition, the Authority
  has consistently found that similar assertions do not satisfy the standard.
  See U.S. Dep't of the Treasury, Internal Revenue Service, Washington, D.C.
  and U.S. Dep't of the Treasury, Internal Revenue Service, Oklahoma City
  District, Oklahoma City, Oklahoma, 51 FLRA 1391, 1396 (1996) (IRS, Oklahoma
  City).  Such assertions cannot permit agencies to make reasoned judgments as
  to their obligations to furnish data under section 7114(b)(4) of the
  Statute.  Further, the union can point to nothing in the record which
  constitutes a further statement of its need for the information.[16]
  The union claims (Br. 26), however, that its need for the information was
  "self-evident," i.e., no further explanation was necessary.[17]  The union
  is mistaken for a number of reasons.  First, it was not, in fact, self-
  evident to Penitentiary management that investigative reports of incidents
  that occurred on the day Baptiste was released into the general population
  were necessary for the union's preparation for arbitration of the health and
  safety grievance.  See JA 115 (Penitentiary human resource manager testified
  that he saw no relation between OIA report and the grievance filed by the
  union).
  Second, there is no authority for the proposition that a union is excused
  from the requirement to articulate its particularized need because such need
  is "self-evident."  To the contrary, in applying the IRS, Kansas City
  analysis, the Authority has consistently required unions to expressly
  articulate the need for the information requested.  For example, in IRS,
  Oklahoma City, the union had grieved an employee's performance appraisal,
  alleging among other things "sexual discrimination and disparate treatment."
  51 FLRA at 1392.  The union then requested performance appraisals of other
  employees in the grievant's work unit, stating that "although the grievant
  is performing a different job function, it is the position of the union that
  the aforementioned appraisals are necessary in order to support our
  allegations."  Id.  The Authority found the union's request insufficient to
  establish particularized need, stating that the union should have explained
  precisely how the requested appraisals would support the claim of disparate
  treatment.  51 FLRA at 1396.  Significantly, the Authority was unpersuaded
  by the argument that the reasons for the request "should have been
  reasonably obvious to the [agency.]"  Id.; Cf. Internal Revenue Service,
  Austin District Office, Austin, Texas, 51 FLRA 1166, 1178 (1996) (IRS,
  Austin) (union established particularized need for disciplinary notices
  where it expressly stated that it needed to compare actions taken with
  respect to misconduct similar to that alleged against employee to analyze
  propriety of proposed action).
  Further, it is prudent policy for the Authority to require that the union
  express its need for information rather than rely on the "self-evident"
  nature of the need in certain circumstances.  Judgments as to what is
  "obvious" or "self-evident" are by their very nature subjective and could
  well eventuate in charges of arbitrariness in decision making.  Moreover, it
  is unclear under the union's proposed "self-evident" standard just who is to
  determine what is self-evident -- the union, the agency, the Authority, or
  the reviewing court of appeals.
  Although in hindsight one can speculate about ways in which a report
  concerning the aftermath of Baptiste's release might have touched on matters
  leading up to Baptiste's release, such speculation cannot be the basis of a
  particularized need finding.  It remains the burden of the union to
  articulate its need, and it must do so at the time of the request.[18]  See
  Allenwood Prison Camp v. FLRA, 988 F.2d at 1271.  Here the union failed to
  meet that burden.[19]
  The Authority reasonably determined that:  1) the stated purpose of the
  information request was to prepare for arbitration of the union's grievance;
  2) the grievance concerned only whether  management's decision to release
  Baptiste violated the Safety and Health article of the agreement and did not
  raise issues concerning Officer Francis' home-duty assignment; and 3) the
  union did not articulate with any specificity why it needed the reports to
  prepare for arbitration of the safety and health issue.  These findings
  resulted from the Authority's evaluation of the factual record in this case
  and are supported by substantial evidence, i.e., "relevant evidence as a
  reasonable mind might accept as adequate to support a conclusion."  State of
  New York v. Reilly, 969 F.2d 1147, 1150 (D.C. Cir. 1992) (quoting Universal
  Camera v. NLRB, 340 U.S. 474, 477 (1951)).[20]  From these findings the
  Authority reasonably concluded that the union had not established a
  particularized need for the information and therefore properly dismissed the
  ULP complaint.
III.  The union's remaining contentions are without merit
  A.  This Court's decision in Scott AFB is inapposite
  Citing Department of the Air Force, Scott Air Force Base v. FLRA, 104 F.3d
  1396 (D.C. Cir. 1997) (Scott AFB v. FLRA), the union argues (Br. 24) that
  unions have a right to information that will assist them in evaluating the
  desirability of arbitration, including information that does not support
  their position.  Thus, the union asserts that the Penitentiary's contention
  that the information sought would not support the union's grievance is
  irrelevant.  Although the union's statements of the relevant principles are
  essentially accurate, they do not advance the union's position in this case.
  Although the Penitentiary may have denied the information request because in
  the Penitentiary's view the documents would not support the union's
  arbitration position, this rationale was not relied upon by the Authority in
  dismissing the ULP complaint.  Rather, the Authority's sole basis for
  dismissing the complaint was that the union had not met its burden of
  articulating the necessity of the OIA reports in connection with arbitrating
  the safety and health issue.
  Nor does Scott AFB v. FLRA support Local 2343's position because the union
  in Scott AFB v. FLRA articulated a particularized need for the information
  requested and thus met its burden.  In Scott AFB v. FLRA, the union had
  filed a grievance over a supervisor's alleged physical assault on a
  bargaining unit employee, and requested that the employer take certain steps
  to remedy the situation, including action against the supervisor.  104 F.3d
  at 1398.  The union asked for copies of any disciplinary letter issued to
  the supervisor over the incident, stating that "we need this information to
  determine if the requested remedy of disciplinary action was in fact taken
  and what that action was.  Upon review of this information, we may conclude
  that no further action i[s] warranted in this case."  Department of the Air
  Force, Scott Air Force Base, Illinois, 51 FLRA 675, 677 (1995), enforced
  Scott AFB v. FLRA  104 F.3d 1396 (Scott AFB).  As this Court found, the
  union articulated the specific connection between the disciplinary letter
  requested and preparation for arbitration, and also showed how the
  information would be used, namely, to determine if management's actions were
  sufficient to permit the grievance to be withdrawn.  Scott AFB v. FLRA, 104
  F.3d at 1400.  Here, by contrast, the union offered virtually no explanation
  of why it needed the information.
  B.  The Authority's decision does not place an undue burden on the union

  The union contends (Br. 27) that the Authority has imposed an impossible
  standard because the union could not identify how the OIA reports would be
  used when the union was not aware of their contents.  The union
  misinterprets the Authority's decision.
  The Authority has never required that a union specify how the specific
  content of a document will be used where the content is unknown, nor does it
  do so here.  That is, the Authority does not require that a union predict
  the content of or likely results to be obtained from the requested
  information.  Rather, the Authority requires only that, as a minimum, the
  union articulate how the document will be used and why the information is
  necessary in performing a representational function.
  Cases like those cited by the union (Br. at 27) demonstrate that a union's
  projected use of documents can be made clear even though the precise content
  of the information is unknown.  In IRS, Austin, the union was representing
  an employee against whom adverse action was proposed.  The union had
  requested, in connection with that representation, documentation of previous
  discipline taken against other employees in the Austin District Office.  The
  Authority found that the union met the particularized need requirement
  because it had expressly:
explained why it needs the information (to ascertain whether there was disparate
treatment of an employee), the uses to which the information will be put (to
determine the appropriateness of the proposed penalty); and the connection
between the uses and the Union's representational responsibilities under the
Statute (to represent an employee against whom an adverse action was proposed).
51 FLRA at 1178.  The union's use for the information was sufficiently
articulated regardless of the specific content of requested information.  If,
for example, the documents showed less harsh sanctions for offenses similar to
that in its current case, the union could argue that the proposed punishment was
too severe.  If, on the other hand, the documents showed the opposite, the union
would know that such a defense would be inappropriate.[21]  Similarly, in Scott
AFB v. FLRA, although the union did not know the content of the disciplinary
letter requested, it nonetheless was able to articulate how the letter was
necessary, irrespective of its specific content, in determining whether to
pursue arbitration.  See Scott AFB, 51 FLRA at 682-84.
  Further, the union's attempts to distinguish IRS, Austin and similar cases
  on the ground that in those cases the union was aware of "the general form
  and content" of the documents requested are unavailing.  For here, as in
  those cases, the union was aware of the "general form and content" of the
  requested OIA reports.  Local 2343 knew, at a minimum, the reports would
  contain information about the charges against Officer Francis and the
  findings of the investigation.  See JA 97.  Further, the union might have
  suspected that the reports contained information concerning events leading
  up to Baptiste's release.  See JA 35 (ALJ decision).  But what the union
  failed to do was inform the Penitentiary as to what use the general sort of
  information it suspected was in the documents would be in its preparation
  for arbitration.  The union's bare assertion that it was needed to "prepare
  for arbitration" was not enough and properly found insufficient by the
  Authority.

CONCLUSION

Local 2343's petition for review should be denied.


  Respectfully submitted.


            DAVID M. SMITH
            Solicitor

            JAMES F. BLANDFORD
            Attorney


            Federal Labor Relations Authority
            607 14th St., N.W.
            Washington, D.C. 20424
            (202) 482-6620

DATE: January 1998





IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2343,
              Petitioner

      v.                           No. 97-1355

FEDERAL LABOR RELATIONS AUTHORITY,
            Respondent
_______________________________



CERTIFICATE OF SERVICE

I certify that copies of the Brief of The Federal Labor Relations Authority
have been served this day, by mail, upon the following:

Mark D. Roth, General Counsel
Judith D. Galat, Staff Counsel
American Federation of
Government Employees, AFL-CIO
80 F Street, N.W.
Washington, D.C. 20001


                            Janet Smith
                            Paralegal Specialist

January 21, 1998



I certify that the Brief of the Federal Labor Relations Authority does not
exceed 12,500 words, the maximum amount allowed under Circuit Rule 28(d).




________________________________
              James F. Blandford
                        Attorney

January 21, 1998

§ 7105. Powers and duties of the Authority

* * * * * * * * * *

  (a)(2) The Authority shall, to the extent provided in this chapter and in
  accordance with regulations prescribed by the Authority-

* * * * * * * * * * *

  (G) conduct hearings and resolve complaints of unfair labor practices under
  section 7118 of this title;

* * * * * * * * * *

§ 7106. Management rights
  (a) Subject to subsection (b) of this section, nothing in this chapter shall
  affect the authority of any management official of any agency-
  (1) to determine the mission, budget, organization, number of employees, and
  internal security practices of the agency; and
  (2) in accordance with applicable laws-
  (A) to hire, assign, direct, layoff, and retain employees in the agency, or
  to suspend, remove, reduce in grade or pay, or take other disciplinary
  action against such employees;
  (B) to assign work, to make determinations with respect to contracting out,
  and to determine the personnel by which agency operations shall be
  conducted;
  (C) with respect to filling positions, to make selections for appointments
  from-
  (i) among properly ranked and certified candidates for promotion; or
  (ii) any other appropriate source; and
  (D) to take whatever actions may be necessary to carry out the agency
  mission during emergencies.
  (b) Nothing in this section shall preclude any agency and any labor
  organization from negotiating-
  (1) at the election of the agency, on the numbers, types, and grades of
  employees or positions assigned to any organizational subdivision, work
  project, or tour of duty, or on the technology, methods, and means of
  performing work;
  (2) procedures which management officials of the agency will observe in
  exercising any authority under this section; or
  (3) appropriate arrangements for employees adversely affected by the
  exercise of any authority under this section by such management officials.
 7114. Representation rights and duties

* * * * * * * * * *

  (b) The duty of an agency and an exclusive representative to negotiate in
  good faith under subsection (a) of this section shall include the
  obligation-

* * * * * * * * * *

  (4) in the case of an agency, to furnish to 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; and
  (5) if agreement is reached, to execute on the request of any party to the
  negotiation a written document embodying the agreed terms, and to take such
  steps as are necessary to implement such agreement.
  (c)(1) An agreement between any agency and an exclusive representative shall
  be subject to approval by the head of the agency.
  (2) The head of the agency shall approve the agreement within 30 days from
  the date the agreement is executed if the agreement is in accordance with
  the provisions of this chapter and any other applicable law, rule, or
  regulation (unless the agency has granted an exception to the provision).
  (3) If the head of the agency does not approve or disapprove the agreement
  within the 30-day period, the agreement shall take effect and shall be
  binding on the agency and the exclusive representative subject to the
  provisions of this chapter and any other applicable law, rule, or
  regulation.
  (4) A local agreement subject to a national or other controlling agreement
  at a higher level shall be approved under the procedures of the controlling
  agreement or, if none, under regulations prescribed by the agency.
§ 7116. Unfair labor practices

  (a) For the purpose of this chapter, it shall be an unfair labor practice
  for an agency-
  (1) to interfere with, restrain, or coerce any employee in the exercise by
  the employee of any right under this chapter;

* * * * * * * * * *

  (5) to refuse to consult or negotiate in good faith with a labor
  organization as required by this chapter;

* * * * * * * * * *

    (8) to otherwise fail or refuse to comply with any provision of this
    chapter.
§ 7118. Prevention of unfair labor practices
  (a)(1) If any agency or labor organization is charged by any person with
  having engaged in or engaging in an unfair labor practice, the General
  Counsel shall investigate the charge and may issue and cause to be served
  upon the agency or labor organization a complaint. In any case in which the
  General Counsel does not issue a complaint because the charge fails to state
  an unfair labor practice, the General Counsel shall provide the person
  making the charge a written statement of the reasons for not issuing a
  complaint.
  (2) Any complaint under paragraph (1) of this subsection shall contain a
  notice-
  (A) of the charge;
  (B) that a hearing will be held before the Authority (or any member thereof
  or before an individual employed by the authority and designated for such
  purpose); and
  (C) of the time and place fixed for the hearing.
  (3) The labor organization or agency involved shall have the right to file
  an answer to the original and any amended complaint and to appear in person
  or otherwise and give testimony at the time and place fixed in the complaint
  for the hearing.
  (4)(A) Except as provided in subparagraph (B) of this paragraph, no
  complaint shall be issued on any alleged unfair labor practice which
  occurred more than 6 months before the filing of the charge with the
  Authority.
  (B) If the General Counsel determines that the person filing any charge was
  prevented from filing the charge during the 6-month period referred to in
  subparagraph (A) of this paragraph by reason of-
  (i) any failure of the agency or labor organization against which the charge
  is made to perform a duty owed to the person, or
  (ii) any concealment which prevented discovery of the alleged unfair labor
  practice during the 6-month period,
  the General Counsel may issue a complaint based on the charge if the charge was
  filed during the 6-month period beginning on the day of the discovery by the
  person of the alleged unfair labor practice.
  (5) The General Counsel may prescribe regulations providing for informal
  methods by which the alleged unfair labor practice may be resolved prior to
  the issuance of a complaint.
  (6) The Authority (or any member thereof or any individual employed by the
  Authority and designated for such purpose) shall conduct a hearing on the
  complaint not earlier than 5 days after the date on which the complaint is
  served. In the discretion of the individual or individuals conducting the
  hearing, any person involved may be allowed to intervene in the hearing and
  to present testimony. Any such hearing shall, to the extent practicable, be
  conducted in accordance with the provisions of subchapter II of chapter 5 of
  this title, except that the parties shall not be bound by rules of evidence,
  whether statutory, common law, or adopted by a court. A transcript shall be
  kept of the hearing. After such a hearing the Authority, in its discretion,
  may upon notice receive further evidence or hear argument.
  (7) If the Authority (or any member thereof or any individual employed by
  the Authority and designated for such purpose) determines after any hearing
  on a complaint under paragraph (5) of this subsection that the preponderance
  of the evidence received demonstrates that the agency or labor organization
  named in the complaint has engaged in or
§ 7118. Prevention of unfair labor practices (Continued):
  is engaging in an unfair labor practice, then the individual or individuals
  conducting the hearing shall state in writing their findings of fact and shall
  issue and cause to be served on the agency or labor organization an order-
  (A) to cease and desist from any such unfair labor practice in which the
  agency or labor organization is engaged;
  (B) requiring the parties to renegotiate a collective bargaining agreement
  in accordance with the order of the Authority and requiring that the
  agreement, as amended, be given retroactive effect;
  (C) requiring reinstatement of an employee with backpay in accordance with
  section 5596 of this title; or
  (D) including any combination of the actions described in subparagraphs (A)
  through (C) of this paragraph or such other action as will carry out the
  purpose of this chapter.
  If any such order requires reinstatement of any employee with backpay, backpay
  may be required of the agency (as provided in section 5596 of this title) or of
  the labor organization, as the case may be, which is found to have engaged in
  the unfair labor practice involved.
  (8) If the individual or individuals conducting the hearing determine that
  the preponderance of the evidence received fails to demonstrate that the
  agency or labor organization named in the complaint has engaged in or is
  engaging in an unfair labor practice, the individual or individuals shall
  state in writing their findings of fact and shall issue an order dismissing
  the complaint.
  (b) In connection with any matter before the Authority in any proceeding
  under this section, the Authority may request, in accordance with the
  provisions of section 7105(i) of this title, from the Director of the Office
  of Personnel Management an advisory opinion concerning the proper
  interpretation of rules, regulations, or other policy directives issued by
  the Office of Personnel Management.
  § 7123. Judicial review; enforcement
  (a) Any person aggrieved by any final order of the Authority other than an
  order under-
  (1) section 7122 of this title (involving an award by an arbitrator), unless
  the order involves an unfair labor practice under section 7118 of this
  title, or
  (2) section 7112 of this title (involving an appropriate unit
  determination),
  may, during the 60-day period beginning on the date on which the order was
  issued, institute an action for judicial review of the Authority's order in the
  United States court of appeals in the circuit in which the person resides or
  transacts business or in the United States Court of Appeals for the District of
  Columbia.
  (b) The Authority may petition any appropriate United States court of
  appeals for the enforcement of any order of the Authority and for
  appropriate temporary relief or restraining order.
  (c) Upon the filing of a petition under subsection (a) of this section for
  judicial review or under subsection (b) of this section for enforcement, the
  Authority shall file in the court the record in the proceedings, as provided
  in section 2112 of title 28. Upon the filing of the petition, the court
  shall cause notice thereof to be served to the parties involved, and
  thereupon shall have jurisdiction of the proceeding and of the question
  determined therein and may grant any temporary relief (including a temporary
  restraining order) it considers just and proper, and may make and enter a
  decree affirming and enforcing, modifying and enforcing as so modified, or
  setting aside in whole or in part the order of the Authority. The filing of
  a petition under subsection (a) or (b) of this section shall not operate as
  a stay of the Authority's order unless the court specifically orders the
  stay. Review of the Authority's order shall be on the record in accordance
  with section 706 of this title. No objection that has not been urged before
  the Authority, or its designee, shall be considered by the court, unless the
  failure or neglect to urge the objection is excused because of extraordinary
  circumstances. The findings of the Authority with respect to questions of
  fact, if supported by substantial evidence on the record considered as a
  whole, shall be conclusive. If any person applies to the court for leave to
  adduce additional evidence and shows to the satisfaction of the court that
  the additional evidence is material and that there were reasonable grounds
  for the failure to adduce the evidence in the hearing before the Authority,
  or its designee, the court may order the additional evidence to be taken
  before the Authority, or its designee, and to be made a part of the record.
  The Authority may modify its findings as to the facts, or make new findings
  by reason of additional evidence so taken and filed. The Authority shall
  file its modified or new findings, which, with respect to questions of fact,
  if supported by substantial evidence on the record considered as a whole,
  shall be conclusive. The Authority shall file its recommendations, if any,
  for the modification or setting aside of its original order. Upon the filing
  of the record with the court, the jurisdiction of the court shall be
  exclusive and its judgment and decree shall be final, except that the
  judgment and decree shall be subject to review by the Supreme Court of the
  United States upon writ of certiorari or certification as provided in
  section 1254 of title 28.
  (d) The Authority may, upon issuance of a complaint as provided in section
  7118 of this title charging that any person has engaged in or is engaging in
  an unfair labor practice,
§ 7123. Judicial review; enforcement (Continued):
petition any United States district court within any district in which the
unfair labor practice in question is alleged to have occurred or in which such
person resides or transacts business for appropriate temporary relief (including
a restraining order). Upon the filing of the petition, the court shall cause
notice thereof to be served upon the person, and thereupon shall have
jurisdiction to grant any temporary relief (including a temporary restraining
order) it considers just and proper. A court shall not grant any temporary
relief under this section if it would interfere with the ability of the agency
to carry out its essential functions or if the Authority fails to establish
probable cause that an unfair labor practice is being committed.




[1]      Pertinent statutory provisions are set forth in Addendum A to this
brief.
[2]      "JA" references are to the Joint Appendix filed with the union's
brief.
[3]      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.  No disciplinary action against the officer followed the investigation.
[4]      The arbitration hearing scheduled for August 4 and 5, 1993 was
apparently postponed (JA 7 n.5).  Nothing in the record indicates that it has
ever been held.
[5]      The Penitentiary referred a subsequent request dated August 19, 1993,
to the OIA (JA 61).  OIA responded by informing the union that the request must
be processed under the Freedom of Information Act (FOIA) (JA 63).  Local 2343
filed a FOIA request.  The record does not contain any response to the FOIA
request.
[6]      Although the Judge recommended dismissal of the complaint on these
grounds, he also expressly rejected the Penitentiary's arguments that it need
not disclose the information because the union's grievance was not arbitrable
and that disclosure was barred by the FOIA (JA 33-34).  In light of the
Authority's disposition of the case, these matters were not addressed further
and are not before the Court (JA 18 n.14).
[7]      Member Wasserman dissented, stating that he would have found that the
union had established a particularized need for the requested information (JA
19-26).
[8]      The Fifth Circuit has also adopted the "particularized need" approach.
U.S. Dep't of Justice v. FLRA, 991 F.2d 285, 290-91 and n.3 (5th Cir. 1993)
(Justice v. FLRA).
[9]      Though the grievance does not identify Officer Francis as the employee
placed on home duty, it is reasonable to assume that he was the officer to whom
the union was referring.
[10]      Thus the union's contention (Br. at 22) that the Penitentiary was
aware that the grievance concerned not only Baptiste's release into the prison
population but also "the events that occurred in the aftermath of that decision,
including the placement of Officer Francis on home duty[,]" is belied by the
record.  Further, there is nothing in the record to indicate that after the
Penitentiary's response the union attempted to clarify the scope of the
grievance.
[11]      At the hearing before the ALJ, the union representative testified that
there were two issues in the grievance, namely the safety and health issue, and
the fact that Officer Francis was put on home-duty status (JA 93).  However,
even if that was the union's subjective intent, such an intent was neither
conveyed during the processing of the grievance nor apparent to the
Penitentiary.  The Penitentiary properly relied on the presentation of the
grievance provided by the union at the time the grievance was filed.  As the
Authority has properly held, an information request must be sufficient to permi