[ v57 p808 ]
57 FLRA No. 179
UNITED STATES DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
FORREST CITY, ARKANSAS
(Respondent)
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 0922
(Charging Party/Union)
DA-CA-80834
_____
DECISION AND ORDER
June 5, 2002
_____
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to the decision of the Administrative Law Judge (Judge) filed by the Respondent. The General Counsel (GC) filed an opposition to the Respondent's exceptions.
The complaint alleges that the Respondent
violated section 7116(a)(1), (5) and (8) of the [Federal Service Labor-Management Relations Statute (the Statute)] by failing to provide a sanitized listing of disciplinary and adverse actions taken since June 1996; the SIS [Special Investigatory Supervisors] manual . . . and any and all operations memoranda, program statements, and manuals that indicate how an investigation should be conducted and how referral to the Office of Internal Affairs is handled; any and all operations memoranda, program statements, manuals, and documents that indicate who proposes discipline, how the decision to impose discipline is made, who determines what the proposal for discipline is, and who can resolve such matters without imposing discipline; [and] the complete investigative file on Shannon Hendrickson.
Judge's Decision at 2.
The Judge found that the Respondent violated § 7116(a)(1), (5), and (8) of the Statute by failing to provide the requested documents and to notify the Union of the non-existence of certain requested information, and issued a remedial order.
Upon consideration of the Judge's decision and the entire record, the Authority unanimously adopts the Judge's findings and conclusions that the Respondent violated § 7116(a)(1), (5), and (8) of the Statute by failing to provide, as requested, the SIS manual, Operations Memoranda, Program Statements, and other manuals and documents, and the requested investigative file. The Judge's finding that the Respondent violated § 7116(a)(1), (5), and (8) by failing to provide the requested list of disciplinary and adverse actions is reversed, with Member Pope dissenting. A remedial order consistent with this decision is issued.
II. Background and Judge's Decision
A. Background
The facts, set forth in detail in the Judge's decision, are summarized here.
Officer Shannon Hendrickson, a unit employee, was suspended for being absent without leave on one day and for dishonest conduct. Subsequent to the suspension, the Union filed an information request with the Respondent (the July 9 request). [n2] The request sought all "copies of all disciplinary and adverse action files on all employees at FCI-Forrest City," including "the charges, action taken, and the pay grades of each individual." GC Exhibit No. 2. The Respondent rejected the request because it claimed that "the Union failed to provide enough information to create a particularized need[.]" Judge's Decision at 3.
The Union subsequently amended its request, explaining that "it needed the information [specified in the first request] to determine if Respondent was consistent in disciplinary actions taken against bargaining unit employees compared with the disciplinary actions taken against supervisors, and that the information would be used to survey the comparisons between exempt and nonexempt employees." Id. The Union also indicated that the information would be used "to compare the action taken on cases similar in nature." Id. See also GC Exhibit No. 4. The Respondent rejected the second request (the July 17 request) on the same grounds that it rejected the July 9 request. [ v57 p809 ]
The Union then submitted an amended third request (the July 30 request), specifying particular types of information. Specifically, the Union requested "a listing of disciplinary and adverse actions taken" in the previous two years. Judge's Decision at 3. The Union specified that personal identifiers, such as names and social security numbers, should be sanitized, and the information should be numbered sequentially and coded "to reflect whether the employee is a bargaining unit member, a nonbargaining unit member, a supervisor/department head, or an executive staff member and . . . to indicate[] race, ethnic origin, and gender." Id. The Union indicated that it was requesting the information "in order to determine whether or not a grievance should be filed in the case of the disciplinary action recently imposed on [Officer] Hendrickson." GC Exhibit No. 6.
The Union also requested: (1) "the SIS manual and any and all operations memoranda, program statements, and manuals that indicated how an investigation would be conducted and how referral to the Office of Internal Affairs [(OIA)] is handled;" [n3] (2) "any and all operations memoranda, program statements, manuals, and documents that indicate who proposes discipline, how the decision to impose discipline is made, who determines what the proposal for discipline is, and who can resolve such matters without imposing discipline;" [n4] and (3) "the complete investigative file on Hendrickson." [n5] Judge's Decision at 3-4.
With respect to the list of disciplinary and adverse actions, specifically, the Union stated that it was concerned about disparate treatment based on race, gender, or bargaining unit status. Noting that the Respondent's program statement on standards of conduct indicated that supervisors are held to a higher standard of conduct, the Union explained that it needed such files on supervisors and other management officials to make the necessary comparisons.
The Union explained that it needed the SIS manual and investigatory policy documents to assess whether the investigation of Hendrickson was conducted in accordance with applicable policies and procedures, to determine what evidence is required, and whether it was gathered in this case. The Union also indicated that the information was needed to evaluate whether Hendrickson was treated differently from other employees and whether any exculpatory evidence was overlooked. As to the disciplinary policy documents requested, the Union explained that it needed to learn "who can formally resolve problems between employees within the work place in order to determine if the supervisors had the authority to resolve the matter without imposing discipline, because an investigation was conducted and discipline imposed after [Hendrickson] was told by three supervisors that the matter was closed." Id. at 4-5.
The Union explained that it needed the Hendrickson investigatory file to determine "if there was exculpatory evidence in the file that was not made available to Hendrickson and the Union and . . . if all the evidence was gathered." Id. at 5. The Union also stated that it needed to know "all the information available to the Warden, who made the decision on the disciplinary proposal, to determine if the affected employee and the Union had the opportunity to present a complete defense before the decision was made, and whether there were factors considered in the decision of which the employee and the Union were not aware." Id.
The Respondent rejected the Union's request for the disciplinary and adverse action records on the ground that the Union had not demonstrated a particularized need for the information. In rejecting the request, the Respondent noted the Union's explanation that it had "reason to believe that supervisor's [sic], executive staff and other non-bargaining unit members are held to a different, and less severe standard of conduct than bargaining unit members." GC Exhibit No. 8 at 2. The Respondent also noted that the Union claimed "a bargaining unit member has complained that there is disparate treatment in disciplinary and adverse actions based on race, gender, and ethnic origin." Id. The Respondent indicated, in this regard, that the Union had made the request on behalf of Officer Hendrickson, but had also referenced a bargaining unit member and claims based on race, gender and ethnic origin. See id. at 3. [ v57 p810 ]
The Respondent rejected the request for the SIS manual, investigatory policy documents, and disciplinary policy documents because it considered it a request for an interpretation of policy and procedure and not a request for data. As to the Hendrickson investigatory file, the Respondent denied the request on the ground that the Union "had access to all the information which was used and considered in suspending Hendrickson" and that, insofar as the request concerned whether all the evidence was gathered, it concerned "an interpretation of policy and procedures and was not a request under the Statute." Judge's Decision at 5.
B. Judge's Decision
The complaint alleged that the Respondent violated § 7116(a)(1), (5), and (8) of the Statute by failing to provide the information in the Union's July 9, July 17, and July 30 requests. See Complaint, ¶¶ 10-12, 20 and 21 (mislabeled ¶ 23).
The Judge stated that, under § 7114(b)(4) of the Statute, an agency has the duty to furnish a union, upon request, and to the extent not prohibited by law, data which: (1) is normally maintained by the agency in the regular course of business; (2) is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and (3) does not constitute guidance, advice, counsel, or training provided for management officials or supervisors relating to collective bargaining. The Judge found that the information sought by the Union was normally maintained by the Respondent in the regular course of business, was reasonably available, and did not constitute guidance, advice, counsel, or training provided for management officials relating to collective bargaining. [n6] The Judge rejected the Respondent's claims that none of the requested information was necessary within the meaning of § 7114(b)(4), applying the standard 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). Under that standard, a union must establish a particularized need for the requested information by articulating, with specificity, why it needs the information, including the uses to which it will put the information, and the connection between those uses and its representational responsibilities under the Statute.
The Judge found that the Union established a particularized need for the requested list of disciplinary and adverse actions. He also rejected the Respondent's claim that, even though sanitized disciplinary and adverse action information was requested, disclosure would violate the Privacy Act because, given the scope of the information requested and the small number of personnel involved, the Union would be able to identify the particular individuals to whom that information pertained. The Judge found that the Respondent did not inform the Union of this countervailing anti-disclosure interest at the time of the request and concluded, therefore, that it could not be considered. Further, the Judge found a separate violation of § 7116(a)(1), (5), and (8) on the ground that the Respondent had failed to inform the Union that the requested list of disciplinary and adverse actions did not exist in the form requested by the Union.
As for the SIS Manual, the Judge noted that the manual is a "limited use document" and that the Union did not request a specific chapter or section because it did not have access to the document. Judge's Decision at 14. The Judge found, however, that from the nature of the request, it was clear that the Union sought information concerning how investigations should be conducted and how cases are referred to the OIA and that, among other things, the Respondent, understood this need. The Judge also rejected the Respondent's claim, based on NLRB v. Robbins Tire and Rubber Co., 437 U.S. 214 (1978) (Robbins), that disclosure of the SIS manual was not authorized by the Freedom of Information Act (FOIA).
Further, the Judge rejected the Respondent's claim that the Union's request for investigatory policy documents constituted a request for an interpretation and not a request for data. The Judge noted that the Union President testified he did not request these documents by name because he did not have access to them and did not know what they were. The Judge found that the Union's request was detailed enough for the Respondent to know what was included. With respect to the Respondent's assertion that the requested information was contained in a compilation of Bureau of Prisons Documents (BOPDOCS), to which the Union had access, the Judge found that the Respondent had never informed the Union of that fact and concluded that the Respondent's failure was "equivalent to a failure to properly respond" to the Union's request. Id. at 18.
The Judge concluded that the Union established a particularized need for the requested disciplinary policy documents and that the Respondent failed to establish that disclosure of the information was precluded by law. [ v57 p811 ] In reaching this result, the Judge found that the Union's request was detailed enough for the Respondent to know what the Union wanted. The Judge noted that although the Respondent asserted that some of the information requested was available on BOPDOCS, the Respondent never communicated that to the Union at the time of the request, did not seek clarification of the Union's request, as the Union had asked, and did not advise the Union that all of the information requested was not available on BOPDOCS.
As for the Hendrickson investigatory file, the Judge found that the Union needed the information to determine whether to file a grievance. The Judge rejected the Respondent's arguments that Hendrickson had not given permission for the Union to obtain a copy of the file and that since there was no public interest to be served by disclosing the unsanitized file, disclosure was barred by the Privacy Act. The Judge found that, by giving the Union permission to see the file, Hendrickson had waived any privacy interests he might have and concluded that, in these circumstances, "the [U]nion's access to the relevant records would not be a clearly unwarranted invasion of personal privacy." Judge's Decision at 23. The Judge also found that the Respondent did not present any evidence as to other employees whose privacy interests would be affected by the Union's access to the file.
In sum, based on his findings and conclusions as to each aspect of the Union's information request, the Judge concluded that the Respondent violated § 7116(a)(1), (5), and (8) of the Statute by failing to provide the Union with the requested information. The Judge issued a recommended order.
III. Exceptions Concerning Whether the Requested Information is Necessary within the Meaning of § 7114(b)(4).
A. Positions of the Parties
1. Respondent's Exceptions
The Respondent contends, generally, that the Judge "erroneously concluded that the Union's [July 30] information request satisfied the Statute's requirements." Exceptions at 6-7. [n7] In particular, as to the request for the SIS manual, the investigatory policy documents, and the disciplinary policy documents, the Respondent argues that "the Union identified no alleged irregularities in the investigation of Hendrickson's misconduct, and had no reason to believe that any had occurred." Id. at 14. Noting that the SIS manual and investigatory policy documents contain only guidelines for conducting investigations, and are not mandatory, the Respondent argues that there is "no connection" between the manual and documents and procedures that must be followed in conducting investigations. Id. In addition, the Respondent maintains that the investigatory policy documents and disciplinary policy documents covered by the Union's request were already available to the Union on BOPDOCS and that the Union specified its interest in limited official use documents only at the hearing.
With respect to the Hendrickson investigatory file, the Respondent notes that the file played no role in the Warden's decision to discipline Hendrickson and that the Union already had access to the disciplinary file on which the decision was based. The Respondent contends that the Union did not establish that it had "reason to believe that any exculpatory evidence existed in Hendrickson's case." Id. at 21. The Respondent maintains that the Judge erred in finding that the Union established a particularized need for the investigative file to determine whether there was such evidence or evidence of other factors in the decision of which the Union was not aware. [n8]
Finally, as to the requested list of disciplinary actions, the Respondent contends that the Union failed to state a particularized need for the information. According to the Respondent, the Union tied its request to Hendrickson's discipline, but did not "narrow[] its request to the same or similar misconduct." Id. at 7. The Respondent asserts that the Union "failed to state a particularized need for a listing, coded or otherwise, of all disciplinary actions taken since June 1996." Id. at 8 (emphasis in original). The Respondent claims that the Judge erred, in finding a particularized need, by relying on the Union's "general and conclusory" statements regarding a need for the information to determine whether the Respondent was engaged in disparate disciplinary treatment based on race, gender, ethnic origin, or bargaining unit status, particularly management status. Id. [ v57 p812 ]
2. General Counsel's Opposition
The General Counsel asserts, generally, that the Respondent's exceptions pertaining to the Judge's finding of particularized need constitute only disagreement with the Judge's application of the law to the facts.
The General Counsel also notes that the Respondent had an "obligation to articulate its countervailing anti-disclosure interests at or near the time of its response to the request for information." Opposition at 5. The General Counsel claims that the Respondent did not assert the Privacy Act as a countervailing anti-disclosure interest at the time the Union's request for a list of disciplinary actions was made.
As to the exceptions pertaining to the SIS manual and other related memoranda, the General Counsel argues that the Judge correctly found that the Union might not have available all the documents it requested because limited official use documents are not on BOPDOCS and that there is a time lag delaying inclusion of documents in BOPDOCS. The General Counsel claims that the Respondent did not, in its response to the Union's request, state that the request did not establish particularized need, and did not assert any countervailing anti-disclosure interests.
B. Analysis and Conclusions
1. Applicable Framework
As noted by the Judge, under § 7114(b)(4) of the Statute, an agency must furnish information to a union, upon request and "to the extent not prohibited by law," if that information is: (1) "normally maintained by the agency"; (2) "reasonably available"; (3) "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining"; and (4) not "guidance, advice, counsel or training."
To demonstrate that information is "necessary" a union "must establish a particularized need for the information by articulating, 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." IRS, Kansas City, 50 FLRA at 669 (footnote omitted). In addition, the union's responsibility for articulating its interests in the requested information requires more than a conclusory assertion and must permit an agency to make a reasoned judgment as to whether the disclosure of the information is required under the Statute. Id. at 670. The agency is responsible for establishing any countervailing anti-disclosure interests and, like the union, must do so in more than a conclusory way. Id. See also Health Care Financing Admin., 56 FLRA 156, 159 (2000) (HCFA). Such interests must be raised at or near the time of the union's request. See IRS, Austin Dist. Off., Austin, Texas, 51 FLRA 1166, 1180 n.14 (1996) (Austin Dist. Off.) (finding of violation based on response at time of request, not some later time).
2. Application of the framework to the information requested in this case
a. SIS Manual, Investigatory Policy Documents, and Disciplinary Policy Documents
We find that the Agency has not established that the Judge incorrectly determined that the Union had established a particularized need for the requested SIS Manual, investigatory policy documents, and disciplinary policy documents.
The Union's request clearly informed the Respondent that it needed the requested information for several reasons, specifically, to determine: (1) whether the investigation of Hendrickson was conducted in accordance with applicable Agency policy; (2) who had the authority to resolve issues of employee conduct without imposing discipline; (3) whether Hendrickson was treated differently than other employees; and (4) whether to file a grievance concerning the discipline of Hendrickson. The request clearly notified the Respondent that the Union intended to examine whether the investigation of Hendrickson was consistent with Agency policies concerning investigations of employee conduct and that it needed information as to those policies in order to make that examination. The Union had a similar intent with respect to the Agency's policies regarding the imposition of discipline. The results of its examination would enable it to decide whether to file a grievance concerning the Hendrickson discipline. In short, the Union's explanation established a connection between the particular information that it was requesting, the uses to which that information would be put, and the representational purposes for which it was requested.
As to the Respondent's contention that the Union had identified no irregularities in the Hendrickson investigation, a union is not required in its request to describe the exact nature of the respondent's alleged misapplication or violation of policy, procedure, law or regulation. See HCFA, 56 FLRA at 162. With respect to the contention that the Union has not shown how the requested information would enable it to demonstrate disparate treatment, the Authority has stated previously [ v57 p813 ] that whether requested information would accomplish a union's purpose is not determinative of whether it is necessary within the meaning of the Statute. See IRS, Kansas City, 50 FLRA at 673. Further, as to the Respondent's argument that the information requested by the Union was already available to it on BOPDOCS, the Respondent did not raise that issue in responding to the request and is untimely in raising it for the first time at the hearing. See Federal Aviation Admin., 55 FLRA 254, 260 (1999) (FAA) (agency must articulate non-disclosure interests in response to information request and not for the first time at the unfair labor practice hearing). In any event, the Judge found that the request extended to information in limited official use documents not in BOPDOCS and that the Union would not have had any knowledge of those documents. See IRS, Kansas City, 50 FLRA at 670 n.13.
We find that the Respondent has not demonstrated that the Judge erred in finding that the Union established a particularized need for the requested SIS Manual, investigatory policy documents, and disciplinary policy documents. Consequently, we deny the Respondent's exception in this regard.
b. Hendrickson Investigatory File
We also find that the Agency failed to establish that the Judge erred in finding that the Union established a particularized need for the Hendrickson investigatory file. First, the Respondent contends that the decision to discipline Hendrickson was based on the disciplinary file and not the investigatory file. Second, the Respondent contends that the Union did not establish that it had any reason to believe that there was exculpatory evidence in the investigatory file. The Respondent's contentions miss the point.
As to the first contention, the Union made clear that it intended, at least in part, to examine whether the investigation leading up to the disciplinary action was consistent with the Respondent's policy and whether that file contained exculpatory evidence. The second contention assumes that the Union should have had some knowledge of the contents of the file. However, since it had no previous access to that information, the Union would not have had any knowledge of those documents. Neither of these contentions demonstrates that the Judge erred in finding that the Union's request established a particularized need for the requested file.
We find that the Respondent has not demonstrated that the Judge erred in finding that the Union established a particularized need for the requested Hendrickson investigatory file. Consequently, we deny the Respondent's exception in this regard.
c. List of Disciplinary and Adverse Actions [n9]
Finally, we find that the Judge erred in concluding that the Union established a particularized need for the requested list of disciplinary and adverse actions. In this regard, we note that the Authority has consistently recognized that a union establishes a particularized need under § 7114(b)(4) for requested information where the request provides "sufficient specification of both the uses to which the information would be put and [the] connection between the uses and the union's representational responsibilities under the Statute." United States Dep't of Justice, INS, Northern Region, Twin Cities, Minn., 52 FLRA 1323, 1331 (1997) (INS, Twin Cities), aff'd, United States Dep't of Justice, INS, No. Region, Twin Cities, Minn. v. FLRA, 144 F.3d 90 (D.C. Cir. 1998). See also Austin Dist. Off., 51 FLRA at 1178; United States Dep't of Transportation, FAA, New England Region, Bradley Air Traffic Control Tower, Windsor Locks, Conn., 51 FLRA 1054, 1067-68 (1996); IRS, Kansas City, 50 FLRA at 672. However, where the information sought is broader than the circumstances covered by the request, and the union has not been able to establish a connection between the broader scope of the information requested and the particular matter referenced in the request, the Authority has found that the union has not established a particularized need for that information. See, e.g., United States Customs Service, South Central Region, New Orleans Dist., New Orleans, La., 53 FLRA 789, 799 (1997); United States Dep't of the Treasury, IRS, Washington, D.C., 51 FLRA 1391, 1395-96 (1996); United States Dep't of Labor, Washington, D.C., 51 FLRA 462, 476 (1995) (Dept. of Labor).
In this case, we find that the Union failed to establish a particularized need for the list of disciplinary and adverse actions, despite the Respondent's repeated requests for clarification of the Union's need for the type and breadth of information sought.
Specifically, the record reveals that the Union initially requested "copies of all disciplinary and adverse action files on all employees at FCI-Forrest City," including "the charges, action taken, and the pay grades of each individual." GC Exhibit No. 2. The Union did not explain why it needed information for all employees and for all types of disciplinary and adverse actions. [ v57 p814 ] Similarly, the Union did not identify the uses to which that information would be put. The Respondent timely responded to the Union's request, stating that the Union had failed to provide sufficient information to create a particularized need. In particular, the Respondent noted that the Union failed to indicate why it needed the information, how the information would be used, and how the use of the information would relate to the Union's representational responsibilities under the Statute.
In its second request for the information, the Union stated that the information would be used to determine if the Respondent was "consistent in disciplinary actions taken against bargaining unit employees, compared with the disciplinary actions taken against supervisors." GC Exhibit No. 4. The Union added that the information "will be used to survey the comparisons between exempt, and non-exempt employees . . . [and] will also be used to compare the action taken on cases similar in nature." Id. The Respondent timely responded to this second request and, in its response, stated that the Union had failed to provide a sufficient basis to establish a particularized need for the requested information.
Nowhere in the Union's first or second requests is there any reference to the Hendrickson suspension or an indication that the information was needed for the possible representation of a bargaining unit employee. Likewise, nowhere in the two requests is there any indication as to any other representational purpose for which the requested information would be used. A mere assertion that the Union intended to make comparisons between disciplinary actions taken against employees and those taken against supervisors does not, standing alone, meet the statutory requirement to articulate, with specificity, why the Union needed the information, including the uses to which the information would be put and the connection between those uses and the Union's responsibilities in adequately representing its members. See IRS, Kansas City, 50 FLRA at 669-70. As the Authority stated in IRS, Kansas City, a request need not be so specific as to require a union to reveal its strategies or compromise the identity of potential grievants who desire anonymity. Id. at 670 n.13. However, a union must still identify, with sufficient specificity, the representational purposes to which the requested information will be put. Here, there was no such specificity provided in the Union's first and second requests.
Not until the third information request did the Union reference the Hendrickson suspension and the possible filing of a grievance on Hendrickson's behalf. However, the Union's July 30 request, although now confined to a particular time period, continued to request all disciplinary and adverse action records within that stated time period in order to compare discipline in similar cases against unit employees, rather than solely in connection with the discipline in the Hendrickson case. In addition to the previous requests, it sought to have the information as to disciplinary actions coded as to race, gender, and national origin. [n10] Further, referencing the complaint of an unnamed unit employee, it claimed to need the information to compare disciplinary actions based on race, gender, and national origin. In replying to the July 30 request, the Respondent noted that, in that request, the Union indicated it was "making [the] request on behalf of Mr. Hendrickson," but that it also "now refer[s] to a bargaining unit member and further without specificity on race, gender, and ethnic origin." GC Exhibit 8 at 2, Respondent's reply to the July 30 request. In this manner, the Respondent indicated to the Union that it had failed to specify whether and how all the information sought was needed for a grievance concerning Hendrickson or to indicate whether it was needed for some other employee. This reply was sufficient to apprise the Union that additional specificity to support the request was needed. However, the Union did not provide any further explanation to the Respondent.
It is clear that the Union's requests concerned general issues related to disparate treatment of unit employees, and were not related solely to the Hendrickson suspension. Nothing in the record indicates that the Union attempted to clarify its request to apply only to information concerning offenses similar to that involving Hendrickson. Thus, while some of the information requested may be the type of information that would be needed to compare the Respondent's discipline of Hendrickson to the discipline of, e.g., similarly situated non-unit employees, or other employees based on race, gender, or national origin, not all of the requested information would be necessary for that purpose. The Union did not further explain the manner in which the remainder of the information would have any connection to demonstrating disparate treatment of Hendrickson with respect to similarly situated employees.
Thus, in the instant case, as in Dep't of Labor, the Union has established "a need for some disciplinary . . . records to compare with the [similar discipline] given [the employee it is representing]," but it does not "explain why [it] needs the information it has requested[.]" Id. at 476. The Authority concluded in Dep't of Labor that the union had not established a particularized [ v57 p815 ] need for the scope of the information requested. Consistent with Dep't of Labor, and for the same reasons, the Union in this case has not established a particularized need for the list of disciplinary and adverse actions which it requested. [n11]
We conclude that the Judge erred in finding that the Union established a particularized need for the requested list of disciplinary and adverse actions and reverse the Judge's finding of a violation of the Statute on that ground. [n12]
IV. Exceptions Concerning Whether Disclosure of the SIS Manual is Prohibited by Law within the Meaning of § 7114(b)(4)
A. Positions of the Parties
1. Respondent's Exceptions
The Respondent contends that disclosure of the SIS Manual would "impermissibly interfere" with its right to determine its internal security practices under § 7106(a)(1) of the Statute. Exceptions at 15.
The Respondent also contends that the Judge erred in failing to address its argument that disclosure of the SIS Manual is prohibited by "the Housekeeping Act, 5 U.S.C. § 301," and Department of Justice regulations, 28 C.F.R. Part 16 (Part 16). According to the Respondent, Part 16 has been held to permit it to withhold information concerning matters pertaining to its security and the security of its investigations, citing United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). Exceptions at 18.
2. General Counsel's Opposition
The General Counsel states that the Respondent did not assert in its response to the Union's request that disclosure of the SIS Manual is prohibited by law. The General Counsel also notes that the Respondent has an obligation to articulate its countervailing anti-disclosure interests at or near the time of its response to the Union's request for information.
B. Analysis and Conclusions
Section 7106 does not prohibit the disclosure of information. See NLRB Union, Local 6 v. FLRA, 842 F.2d 483, 486 (D.C. Cir. 1988) (NLRBU v. FLRA) ("Nothing in § 7106 contains any language concerning the disclosure or prohibition of disclosure of anything."). Consequently, the Respondent's reliance on § 7106 is without merit. See NTEU, 55 FLRA 1174, 1186 n.15 (1999) (Member Wasserman dissenting on other grounds) ("The court held in NLRBU v. FLRA that, in resolving an asserted statutory entitlement to information, the 'prohibited by law' exception to disclosure under § 7114(b)(4) of the Statute encompasses only disclosure laws, not § 7106.").
The Respondent's reliance on 5 U.S.C. § 301 and Part 16 is also unavailing. [n13] 5 U.S.C. § 301 merely authorizes heads of agencies to prescribe regulations, among other things, governing the use of the agencies' records and papers. The provision also specifically states that it does not "authorize withholding information from the public or limiting the availability of records to the public." In short, 5 U.S.C. § 301 does not prohibit the disclosure of information.
Part 16 contains Respondent's regulations governing the processing of requests for information under the FOIA. In the first place, this case does not involve a request under FOIA and, thus, it appears that Part 16 is not applicable to the request. Secondly, the Respondent does not indicate the section of Part 16 that it claims prohibits disclosure of the requested information. In this regard, examination of Part 16 in light of the Respondent's expressed concerns suggests that the only arguably relevant portion could be 28 C.F.R. § 16.26. That subsection pertains to the considerations that should guide agency officials in deciding whether to disclose requested information and includes guidance concerning investigatory records compiled for law enforcement purposes. 28 C.F.R. § 16.26(b)(5). However, by its own terms, the provision applies to records compiled for law enforcement purposes, not for internal disciplinary proceedings. Thirdly, it does not prohibit the disclosure even of the records to which it applies.
Consequently, the Respondent has failed to demonstrate that disclosure of the requested SIS Manual is prohibited by law. We conclude, therefore, that the Judge properly found that disclosure of that information was not prohibited by law. Consequently, we deny the Respondent's exception. In light of this conclusion, it is [ v57 p816 ] not necessary for us to address the General Counsel's contention regarding the Respondent's obligation to articulate countervailing interests.
V. Exceptions Concerning Whether the Judge Erred in Finding that the Respondent Violated the Statute by Failing to Inform the Union that the Requested List of Disciplinary and Adverse Actions did not Exist in the Form Requested
A. Positions of the Parties
1. Respondent's Exceptions
The Respondent contends that the Judge erred in finding that: (1) it had an affirmative obligation to notify the Union that it did not have certain information in the form requested by the Union; and (2) it violated the Statute by failing to notify the Union of that fact. The Respondent also claims that the General Counsel did not allege in the complaint that the Respondent violated the Statute by failing to notify the Union that the requested information did not exist, and did not amend the complaint to include such an alleged violation. The Respondent cites United States EEOC, 51 FLRA 248, 251 (1995).
2. General Counsel's Opposition
The General Counsel contends that the violation for failure to notify as to nonexistent information "is not a separate allegation under the Statute, but, rather, is incorporated within the § 7116(a)(1), (5), and (8) allegation in the Complaint." Opposition at 13. In particular, the General Counsel notes that a reply to a request for information is necessary for full and proper discussion of subjects within the scope of bargaining and that the nonexistence of requested information does not relieve a respondent of the obligation to reply. Rather, according to the General Counsel, although the Authority has indicated that parties should consider alternative forms or means of disclosure, the Respondent failed to consider an alternative means by which to meet the Union's information needs.
B. Analysis and Conclusions
The Authority has consistently held that, when information requested by a union from an agency does not exist, the agency is obligated under § 7114(b)(4) of the Statute to inform the union of that fact. See, e.g., Social Security Admin., Dallas Region, Dallas, Tex., 51 FLRA 1219, 1226 (1996); United States Naval Supply Center, San Diego, Cal., 26 FLRA 324, 326-27 (1987). Failure to inform a union of the nonexistence of requested information constitutes a violation of § 7116(a)(1), (5), and (8) of the Statute. Id.
However, this is not a case in which information as to unit status, race, gender, and national origin of employees involved in disciplinary and adverse actions sought by the Union did not exist. Indeed, the Respondent maintained the information, only not in the precise form sought by the Union. Furthermore, the Respondent in this case responded to the Union's request and has never defended its refusal to provide the requested information on the ground that it did not exist in "list" form. Finally, the General Counsel acknowledges that any failure to notify the Union that the requested information did not exist in that form was not a separate allegation in this case. Consequently, this was not a separate issue before the Judge, and we modify the order in this case to strike any reference to it.
VI. Exceptions Concerning Whether the Judge Erred in His Recommended Remedial Order and Notice
A. Positions of the Parties
1. Respondent's Exceptions
The Respondent claims that the issue of its failure to notify the Union that a list of disciplinary and adverse actions categorized by unit status, race, gender, and national origin did not exist was not properly litigated. In this regard, the Respondent contends that the Judge improperly ordered the Respondent to cease and desist from failing to so notify the Union and ordered the Respondent to notify the Union when requested information does not exist. The Respondent asserts that the Judge also improperly ordered it to provide the Union with the SIS Manual, investigatory policy documents, and disciplinary policy documents already in the Union's possession and to respond in a timely manner to the Union's information requests. The Respondent argues that the order and notice to employees should be modified to remove those requirements.
Specifically, the Respondent contends that it should not be required to disclose the whole SIS Manual, since only one chapter pertains to the subject of that request. The Respondent also contends that it should not be required to provide any of investigatory policy documents or disciplinary policy documents requested by the Union that "already are in the Union's possession" through BOPDOCS. Exceptions at 24. Finally, the Respondent contends that the requirement regarding timely response should be removed because there was no issue before the Judge concerning the timeliness of the Respondent's responses to the Union's requests for [ v57 p817 ] information. The Respondent notes that certain parts of the Judge's order were not requested as remedies by the General Counsel.
2. General Counsel's Opposition
According to the General Counsel, the Judge "correctly ordered relief based on his conclusion that [the] Respondent violated § 7116(a)(1),(5), and (8) of the Statute." Opposition at 14. The General Counsel contends also that the Respondent did not cite any precedent supporting its claim that the Judge was limited to remedies requested by the General Counsel.
B. Analysis and Conclusions
Because we have reversed the Judge's conclusion that the Respondent violated the Statute by failing to notify the Union of the non-existence of requested information, the remedial order and notice will be modified by removing any requirements pertaining to that violation.
We view the Judge's order concerning timely response to the Union's information requests as simply a restatement of the Respondent's obligation under the Statute. See, e.g., Dep't of Health and Human Services, Social Security Admin., New York Region, New York, N.Y., 52 FLRA 1133, 1150 (1997). Accordingly, we deny the Respondent's exception in this regard.
As to the Respondent's claim that the order should be modified to require disclosure of only a portion of the SIS Manual and to eliminate a requirement for the disclosure of any necessary information on BOPDOCS, the Judge's recommended order is sufficiently specific to put the Respondent on notice as to what is required, and any disputes as to particular information covered by the order in this regard should be resolved in compliance proceedings. See Dep't of the Air Force, Scott AFB, Ill., 51 FLRA 675, 694 (1995), aff'd, Dep't of the Air Force, Scott AFB, Ill. v. FLRA, 104 F.3d 1396 (D.C. Cir. 1997) (disputes as to scope of order resolved in compliance proceedings).
We conclude that the Judge's recommended order in this case should be modified by removing from the order any reference to requirements pertaining to the failure to notify the Union as to the non-existence of requested information. We deny the Respondent's exceptions as to the requirements of the Judge's recommended order pertaining to the timeliness of the Respondent's response and to the SIS Manual and operations memoranda and program statements contained on BOPDOCS.
VII. Order
Pursuant to § 2423.43 of our Regulations and § 7118 of the Federal Service Labor-Management Relations Statute, the United States Department of Justice, Bureau of Prisons, Federal Correctional Institution, Forrest City, Arkansas shall:
1. Cease and desist from:
(a) Failing and refusing to furnish, as requested by the American Federation of Government Employees, Local 0922: (1) the SIS manual and any and all investigatory policy documents; (2) any and all disciplinary documents; and (3) the complete investigatory file on Shannon Hendrickson.
(b) Failing to furnish information requested by the American Federation of Government Employees, Local 0922, under the Statute in a timely manner.
(c) In any like or related manner, interfering with, restraining, or coercing unit employees in the exercise of their rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the policies of the Statute.
(a) Upon request, furnish to the American Federation of Government Employees, Local 0922, the exclusive representative of certain of its employees: (1) the SIS manual and any and all investigatory policy documents; (2) any and all disciplinary documents; and (3) the complete investigatory file on Shannon Hendrickson.
(b) Respond in a timely manner to requests for information made by the American Federation of Government Employees, Local 0922, under the Statute.
(c) Post at its facilities in Forrest City, Arkansas, where the bargaining unit employees represented by the American Federation of Government Employees, Local 922, are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Warden, and shall be posted and maintained for 60 consecutive days thereafter. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.
(d) Pursuant to § 2423.41(e) of the Authority's Regulations, notify the Regional Director, Dallas Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply. [ v57 p818 ]
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the United States Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Forrest City, Arkansas violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.
We hereby notify bargaining unit employees that:
WE WILL NOT fail and refuse to furnish, as requested by the American Federation of Government Employees, Local 0922: (1) the SIS manual and any and all investigatory policy documents; (2) any and all disciplinary documents; and (3) the complete investigatory file on Shannon Hendrickson.
WE WILL NOT fail to furnish information requested by the American Federation of Government Employees, Local 0922, under the Statute in a timely manner.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce unit employees in the exercise of their rights assured by the Statute.
WE WILL furnish to the American Federation of Government Employees, Local 0922, the exclusive representative of certain of our employees: (1) the SIS manual and any and all investigatory policy documents; (2) any and all disciplinary documents; and (3) the complete investigatory file on Shannon Hendrickson.
WE WILL respond in a timely manner to requests for information made by the American Federation of Government Employees, Local 0922, under the Statute.
_________________________________
(Activity)
Date:_______By:______________________________
(Signature) (Title)
This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director for the Federal Labor Relations Authority, Dallas Regional Office, whose address is: 525 Griffin Street, Suite 926, LB 107, Dallas, Texas, 75202-1906, and whose telephone number is: (214) 767- 4996.
APPENDIX
1. 5 U.S.C. § 301 provides as follows:
§ 301. Departmental regulations
The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting availability of records to the public.
2. 28 C.F.R. Part 16 provides in relevant part as follows:
§ 16.1 General provisions.
(a) This subpart contains the rules that the Department of Justice follows in processing requests for records under the Freedom of Information Act (FOIA), 5 U.S.C. 552.
. . . .
§ 16.26 Considerations in determining whether production or disclosure should be made pursuant to a demand.
(a) In deciding whether to make disclosures pursuant to a demand, Department officials and attorneys should consider:
(1) Whether such disclosure is appropriate under the rules of procedure governing the case or matter in which the demand arose, and
(2) Whether disclosure is appropriate under the relevant substantive law concerning privilege.
(b) Among the demands in response to which disclosure will not be made by any Department official are those demands with respect to which any of the following factors exist:
. . . .
(5) Disclosure would reveal investigatory records compiled for law enforcement purposes, and would interfere with enforcement proceedings or disclose investigative techniques and procedures the effectiveness of which would thereby be impaired.
File 1: Authority's Decision in 57 FLRA No.
179 and Appendix
File 2: Opinion of Member Pope
File 3: ALJ's Decision
Footnote # 1 for 57 FLRA No. 179 - Authority's Decision
The separate opinion of Member Pope, dissenting in part, is set forth at the end of this decision.
Footnote # 2 for 57 FLRA No. 179 - Authority's Decision
This request references previous requests for information which are not in the record.
Footnote # 3 for 57 FLRA No. 179 - Authority's Decision
The Special Investigators Supervisory Manual, referred to herein as the SIS Manual, is a policy document that contains guidance on the conduct of investigations, including investigations into potential disciplinary actions. The phrase "operations memoranda, program statements, and manuals" in this context refers to other management documents containing policy or guidance on the conduct of investigations. Those documents will be referenced herein as "investigatory policy documents."
Footnote # 4 for 57 FLRA No. 179 - Authority's Decision
The phrase "operations memoranda, program statements, manuals and documents" in this context relates to documents containing policy or guidance with respect to the imposition of disciplinary actions on employees and will be referenced herein as "disciplinary policy documents."
Footnote # 5 for 57 FLRA No. 179 - Authority's Decision
The phrase "complete investigative file on Hendrickson" relates to all the information that was collected in the investigation into Hendrickson's alleged AWOL infraction, including reports of interviews with witnesses, that formed the basis for the summary information in the disciplinary file used by the warden in deciding Hendrickson's discipline. It will be referenced herein as the "Hendrickson investigatory file."
Footnote # 6 for 57 FLRA No. 179 - Authority's Decision
The Respondent does not except to the Judge's findings that the information is normally maintained and reasonably available and they will not be addressed further in this decision.
Footnote # 7 for 57 FLRA No. 179 - Authority's Decision
The Respondent contends that the Judge erroneously stated that it did not dispute that the Union's request met the requirements of § 7114(b)(4). Exceptions at 6 n.3. Even if the Judge's statement is in error, that fact is irrelevant to whether he correctly found that the requirements are met.
Footnote # 8 for 57 FLRA No. 179 - Authority's Decision
The Respondent also argues, Exceptions at 14 n.8, that the SIS manual constitutes advice, guidance, and counsel within the meaning of § 7114(b)(4)(C) and, as such, is not disclosable. We agree with the General Counsel that, because § 7114(b)(4)(C) was not raised before the Judge, it is not properly before us. See § 2429.5 of the Authority's Regulations.
Footnote # 9 for 57 FLRA No. 179 - Authority's Decision
Member Pope dissents as to the majority's conclusion in this section and would find, for reasons set forth in her dissenting opinion, that the Union established a particularized need for the requested list of disciplinary and adverse actions.
Footnote # 10 for 57 FLRA No. 179 - Authority's Decision
In this regard, the Union noted that coding the information would allow it to make "a more specific request if necessary." GC Exhibit 8 at 2, July 30 Request at 2. The Union's statement suggests that it recognized that it was requesting more information than it might ultimately need.
Footnote # 11 for 57 FLRA No. 179 - Authority's Decision
The fact that the Union established a particularized need for most of the information it requested clearly shows that the Union was aware of the steps that it was required to take to satisfy a showing of need under § 7114(b)(4), and that these steps did not impose an insurmountable burden on the Union.
Footnote # 12 for 57 FLRA No. 179 - Authority's Decision
Given the conclusion set forth above, that the Union has not established a particularized need for the requested list of disciplinary and adverse actions, the majority opinion will not consider the Respondent's claim that disclosure of that information is prohibited by law.
Footnote # 13 for 57 FLRA No. 179 - Authority's Decision
The relevant text of each of these provisions is set forth in the Appendix to this decision.