[ v52 p1000 ]
52:1000(105)CA
The decision of the Authority follows:
52 FLRA No. 105
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_____
DEPARTMENT OF THE AIR FORCE,
WASHINGTON, D.C.
(Respondent)
and
AIR FORCE LOGISTICS COMMAND
WRIGHT-PATTERSON AIR FORCE BASE, OHIO
(Respondent)
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
(Charging Party/Union)
CH-CA-20193
CH-CA-20459
(49 FLRA 603 (1994))
_____
DECISION AND ORDER ON REMAND
February 28, 1997
_____
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.(1)
I. Statement of the Case
This consolidated unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached decision of the Administrative Law Judge. The Judge's decision was issued following a remand from the Authority in Department of the Air Force, Washington, D.C. and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 49 FLRA 603 (1994) (Air Force I). The Agency filed an opposition to the General Counsel's exceptions.
The complaints allege that the Agency violated section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to furnish certain information requested by the Union under section 7114(b)(4) of the Statute. In Air Force I, 49 FLRA at 609, the Authority remanded the complaints to the Judge in order to allow the parties to address the issue of whether the Union established a particularized need for the requested information, as addressed by the court in National Labor Relations Board v. FLRA, 952 F.2d 523 (D.C. Cir. 1992) (NLRB v. FLRA), and adopted by the Authority in National Park Service, National Capital Region, United States Park Police, 48 FLRA 1151 (1993) (Member Talkin concurring in part and dissenting in part) (National Park Service). On remand, the Judge concluded that the Union had not established a particularized need for the requested information, and he recommended that the complaints be dismissed.
Upon consideration of the Judge's decision on remand and the entire record, we adopt the Judge's findings, conclusions, and recommended order to the extent consistent with this decision. Accordingly, we dismiss the complaints.
II. Background and Judge's Decisions
In July 1989, a B-52 bomber exploded at Kelly Air Force Base (Kelly AFB), killing one bargaining unit employee and wounding several others. Respondent AFLC and the Occupational Safety and Health Administration (OSHA) conducted accident investigations, and copies of their reports were given to the Union.
A. Case No. CH-CA-20193
In December 1990, a team under the direction of AFLC's Inspector General (IG) conducted a review of safety procedures at five Air Logistics Centers, including Kelly AFB. After the review, the IG prepared a "Report of Process Effectiveness Review" (IG Report), containing "a series of candid comments and recommendations to AFLC management." Judge's Decision at 2.
In November 1991, the Union requested a copy of the IG Report in order to "determine if grounds exist for submission of a grievance (because of non-compliance with the report in addressing the citations cited by OSHA as well as others)." G.C. Exh. 6. Respondent AFLC replied that the IG Report was releasable only by the Secretary of the Air Force. Respondent AFLC also stated, as relevant here:
We would require further clarification of your . . . letter since the reference to "citations cited by OSHA as well as others" is too general. If we can help you by other means to avoid a grievance on this matter please contact . . . our office.
G.C. Exh. 8. The Union did not respond. On February 3, 1992, the Union filed the original charge in Case No. CH-CA-20193.(2)
B. Case No. CH-CA-20459
In October 1991, the AFLC's IG conducted a follow-up review of the safety programs at each of the Air Force Logistics Centers previously studied, and issued a "Report of Follow-Up Safety Program Integration, Process Effectiveness Review" (Follow-Up IG Report). On April 20, 1992, the Union requested a copy of the Follow-Up IG Report. No reasons for requesting the Follow-Up IG Report were stated in this request. On May 14, 1992, the Union made another request for the Follow-Up IG report, stating that:
A copy of the . . . report is necessary to assist us in developing proposals for the upcoming Master Labor Agreement (MLA) negotiations. The report is also necessary to determine whether any employee or Union rights have been violated and if they have, so the Union can take appropriate remedial action through our negotiated grievance procedures.
G.C. Exh. 16.
By letter dated May 22, 1992, Respondent AFLC replied that the request should be made to the Secretary of the Air Force, and that it was "unlikely" that the Air Force would release the Follow-Up IG Report. G.C. Exh. 18 at 1. Citing NLRB v. FLRA, 952 F.2d 523 (D.C. Cir. 1992), Respondent AFLC stated:
The information you seek is clearly guidance and advice to a management official . . . . You assert that [the Union] needs the report in question in order to develop proposals for the upcoming MLA negotiations, and to determine if union and/or employee rights have been violated. This does not appear to satisfy the particularized showing of need the court discussed in NLRB. You have not identified which portion of the MLA this relates to, nor have you identified how the report relates to a potential grievance by an employee or the union. Therefore, even though the decision to release this report rests with [the Secretary of the Air Force], we would not recommend the report be released.
Id. at 2. On May 26, 1992, the Union filed the original charge in Case No. CH-CA-20459.
C. The Judge's Initial Decision and Authority Remand
The Judge concluded that the Respondents had not violated the Statute and recommended dismissal of the complaints. On exceptions filed by the General Counsel, the Authority remanded the case for further proceedings consistent with its decision in National Park Service, which had been issued after the Judge's decision. Air Force I, 49 FLRA at 609.
D. Judge's Decision on Remand
In the decision on remand, the Judge applied the "particularized need" standard, identified by the court in NLRB v. FLRA, to the facts and circumstances of the instant case. The Judge noted that two examples of "particularized need" had been provided by the D.C. Circuit in NLRB v. FLRA. These were circumstances where: (1) the union has a grievable complaint covering the information; and (2) the disputed document creates a grievable action. Judge's Decision at 5.
With respect to the first example, the Judge determined that "there ha[d] been no reference herein to a provision in the . . . parties' [MLA] which requires the Respondent to create documents containing intramanagement recommendations." Id. In this regard, the Judge noted that, although the parties' MLA contains an extensive provision on "Health and Safety" (Article 25), it contains no "procedure requiring the creation of management reports, much less intramanagement recommendations." Id. Accordingly, the Judge determined that the Union did not have a grievable complaint covering the information. Id. at 6.
Next, the Judge considered whether the requested information created a grievable action within the meaning of the court's second example in NLRB v. FLRA. The Judge noted that the Union's assertion that it needed the report to "determine if grounds exist for submission of a grievance because of non-compliance with the report in addressing the citations cited by OSHA as well as others" was based on the "fallacy" that the Respondent was obligated to comply with the IG's recommendations. Id. In this regard, the Judge noted that the IG Report set forth "possible solutions" that were styled "in the form of opinions and recommendations rather than mandates." Id. The Judge pointed out that an Air Force regulation, AFR 123-1, provides that "recommendations contained in an IG Report do not represent an approved Air Force position until final action is taken by the responsible Air Force agency." Id. Thus, the Judge concluded that "the Union's underlying assumption that the Respondent's noncompliance with the IG's recommendations would create a grievable action [was] simply erroneous." Id.
The Judge also addressed the Union's assertion that it needed the Follow-Up IG Report "to assist . . . in developing proposals for the upcoming Master Labor Agreement (MLA) negotiations." Id. at 7. The Judge determined that "[e]ven assuming that preparation for negotiations could constitute a basis for establishing a union's particularized need for requested information under certain circumstances . . . the Union did not establish a particularized need for the IG Reports in order to prepare for negotiations in this case." Id. at 8. The Judge stated that, although "access to the IG Reports in question doubtless would have been helpful to the Union in preparing safety proposals for negotiation," the Union had not established particularized need for such information.(3) Id. The Judge also stated that he had "carefully considered the Respondent's countervailing interests against disclosure of the IG Report and the Follow-Up IG Report[,]" which included: (1) preventing the inhibition of candid information from employees interviewed by the IG inspectors; and (2) assuring that critical self-analysis is not diminished in the future as a result of release of the reports to the public. Id.
III. Positions of the Parties
A. General Counsel
The General Counsel contends that the Authority should not rigidly apply the two examples of particularized need provided by the court in NLRB v. FLRA, but, instead, should utilize a "sliding scale" analysis in weighing the Union's need for the information against the intensity of management's countervailing interest against disclosure. G.C. Brief at 2. The General Counsel asserts that the interests of the Union and the Respondent with respect to the requested information are not in conflict, and states that, as a "possible alternative," the reports could be sanitized. Id. at 5. In this connection, the General Counsel asserts that "[a]t a minimum the Union is entitled to the portions of the Reports which concern assessment of current safety operations and identified deficiencies." Id. The General Counsel cites Oil, Chemical & Atomic Workers Local Union 6-418 v. NLRB, 711 F.2d 348 (D.C. Cir. 1983), for the proposition that unions have a genuine and substantial need for health and safety data. Id. at 5-6.
With respect to the Judge's specific application of the two examples of particularized need set forth in NLRB v. FLRA, the General Counsel asserts, first, that the D.C. Circuit "[s]urely . . . did not intend such a narrow and limiting construction of 'grievable complaint'." Id. at 3. According to the General Counsel, even though the MLA "does not require IG audits," it does "require Respondent to 'conduct safety and health inspections or surveys'." Id. at 3-4. The General Counsel argues that "[c]learly, the IG inspections at issue in these cases are 'safety and health inspections'." Id. at 4. Second, the General Counsel disputes what it refers to as the Judge's "unnecessarily narrow and technical reading" of a "grievable action." Id. The General Counsel argues that, as the IG Reports contain, inter alia, "an assessment of current safety operations, including identified deficiencies," the Respondent's "failure to address these matters would create a grievable situation[.]" Id.
B. Respondent
The Respondent maintains that the Administrative Law Judge properly determined that the Union failed to establish particularized need for the requested IG Reports under the examples cited in National Park Service, 48 FLRA 1151. The Respondent also asserts that the Judge correctly considered the "intensity of the Respondent's countervailing interests" with respect to disclosure of the requested IG Reports. Respondent's Opposition at 2.
IV. Analysis and Conclusions
A. The Analytical Approach for Determining Whether the Requested Information Is Necessary Within the Meaning of Section 7114(b)(4) of the Statute
In National Park Service, on which the remand in this case was based, the Authority adopted the standard of "particularized need" for determining whether a union has demonstrated that requested intramanagement documents are necessary within the meaning of section 7114(b)(4) of the Statute. Subsequently, 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 elaborated on this standard and applied it to all section 7114(b)(4) information requests.
Under the approach set forth in IRS, Kansas City, a union requesting information under section 7114(b)(4) of the Statute "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." Id. at 669 (footnote omitted). Further, the union's responsibility for articulating its interests in the requested information includes more than a conclusory or bare assertion and must permit an agency to make a reasoned judgment as to whether the disclosure of the information is required under the Statute. The agency is responsible for asserting and establishing any countervailing anti-disclosure interests and, like the union, must do so in more than a bare or conclusory way.(4)
The Union is required to articulate its disclosure interests at or near the time of the request--not for the first time at the unfair labor practice hearing. E.g., INS, Dallas, 51 FLRA at 551; U.S. Equal Employment Opportunity Commission, 51 FLRA 248, 258 (1995). Moreover, the Authority has found that a union did not establish a particularized need where an agency requested clarification and the union did not provide additional explanation as to why it needed the requested information. See 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 FLRA 1391 (1996) (IRS, Oklahoma City); Cf. U.S. Department of Justice, Immigration and Naturalization Service, Northern Region, Twin Cities, Minnesota, 51 FLRA 1467(1996) (INS, Twin Cities) (agency's failure to raise concerns about, or seek clarification concerning, the scope of the union's request for disciplinary and adverse action records during discussions to clarify other aspects of the union's request justified reliance upon union's testimony at ULP hearing about the scope of its request in assessing whether the union satisfied its burden to establish particularized need).
B. The Union Did Not Establish a Particularized Need for the IG Report
The only need stated in the Union's request for the IG Report was to "determine if grounds exist for submission of a grievance because of non-compliance with the report in addressing the citations cited by OSHA as well as others." G.C. Exh. 6. The Respondent sought clarification of the request, to which the Union did not respond.
The Union's request is not clear and specific as to why it needs the IG Report. For example, the reference to "citations cited by OSHA" is vague; the reference to "others" is even more vague. The Union also does not identify the MLA provisions that are implicated by these citations or otherwise identify the basis for its potential grievance.
Given this lack of clarity and specificity, the Respondent's request for clarification was not unreasonable. In this regard, it is not argued, and there is no evidence to suggest, that the Respondent's request for clarification was "disingenuous or unreasonable." See IRS, Oklahoma City, 51 FLRA at 1396. To the contrary, the concluding sentence in Respondent's reply suggests a willingness to attempt to accommodate the Union's stated need.
The Union did not respond to the Respondent's request for clarification. The Union's failure to articulate its need with the requisite specificity, and its subsequent failure to respond to the Respondent's request for clarification, precluded the Respondent from making an informed judgment about whether the information was "necessary."(5) It also precluded the Respondent from either considering ways to accommodate the Union's interest in the information, or attempting to reach agreement on the extent to which the requested information could be disclosed. See IRS, Oklahoma City, 51 FLRA 1391. The Union may well have believed that the IG Report contained information that it needed to discharge its representational responsibilities. However, the Union did not articulate to the Respondent its reasons for so believing. Accordingly, we find that the Union did not satisfy its burden of articulating and establishing with the required specificity why it needed the IG Report. As such, the Respondent did not violate the Statute by refusing to provide the Union with the IG Report, and we dismiss the complaint in Case No. CH-CA-20193.
C. The Union Did Not Establish a Particularized Need for the Follow-Up IG Report
The Union's request stated that the Follow-Up IG Report was necessary to assist in developing proposals for contract negotiations and to "determine whether any employee or Union rights have been violated and if they have, so the Union can take appropriate remedial action through our negotiated grievance procedures." G.C. Exh. 16. In reply, the Respondent asserted that the Union had not established a particularized need for the Follow-Up IG Report because, among other things, the Union had not "identified which portion of the MLA this relates to, nor . . . identified how the report relates to a potential grievance by an employee or the union." G.C. Exh. 18 at 2.
The Respondent's reply explained its reasons for concluding that the request did not adequately explain the Union's need for the report. The Respondent's reply did not expressly request "clarification" from the Union. However, to find that it did not at least implicitly invite further discussion of the Union's asserted need would elevate form over substance. The Union did not respond to the Respondent and, instead, filed the second ULP charge in this case less than 2 weeks after receiving the agency's response. Given this response, we analyze this complaint in a manner similar to our analysis of the complaint regarding the IG Report, and consistent with the analyses in other cases where a union provided no further explanation of its need for requested information despite specific matters raised in an agency's reply. E.g., IRS, Oklahoma City. That is, we limit our examination to the Union's initial information request to determine whether it established particularized need.
In its request, the Union asserted two needs for the Follow-Up IG Report: to determine whether any employee or Union rights had been violated, and to assist in developing proposals for MLA negotiations. With respect to the first -- the asserted need to determine whether employee or Union rights had been violated -- the request did not address which statutory or contractual rights might be implicated by the report, and the Union provided no clarification after the Respondent questioned how the report related to a potential grievance. With respect to the second -- the Union's asserted need to develop bargaining proposals -- preparing proposals for collective bargaining is without doubt a central Union representational responsibility under the Statute, and the importance of health and safety issues, in general, is evident. However, an assertion that requested information is necessary to "assist in developing proposals for MLA negotiations," is similar to the conclusory or bare assertions previously found by the Authority to be insufficient to establish particularized need. See, e.g., INS, Twin Cities, 51 FLRA at 1480-82 (union stated that it needed exhibits to inspector general reports and related materials "to properly respond to the allegations" in notice of employee's proposed removal); IRS, Oklahoma City, 51 FLRA at 1392 (union asserted that employees' performance appraisals were "necessary in order to support [its] allegations" that grievant's lowered appraisal constituted discrimination based on sex). Particularly in circumstances where the agency questions the assertion, such a conclusory assertion is at odds with the concept of particularized need. In this case, the Union did not explain how the reports would assist in developing its bargaining proposals. Accordingly, application of Authority precedent leads to the conclusion that this asserted need also falls short of the specificity required under IRS, Kansas City.
The Union's failure to articulate its need for the Follow-Up IG Report with the requisite specificity precluded the Respondent from making an informed judgment about whether the Follow-Up Report was "necessary," and from considering ways to accommodate the Union's interest in the information or attempting to reach agreement on the extent to which the requested information could be disclosed. IRS, Oklahoma City, 51 FLRA at 1396. Accordingly, we find that the Union did not satisfy its burden of articulating and establishing with the required specificity why it needed the Follow-Up IG Report.
V. Order
The complaints in Case Nos. CH-CA-20193 and CH-CA-20459 are dismissed.
Member Wasserman, concurring:
My agreement that the Respondent did not violate the Statute in the circumstances of this case is very narrowly grounded. Therefore, I write separately to explain how my view differs from that expressed in the majority opinion.
Specifically, I do not agree that the Union's request lacked clarity and specificity to the degree found by the majority. Rather, I believe that the Union linked its requests for both the IG Report and the Follow-Up IG Report to its need to administer the Health and Safety provision of the parties' Master Labor Agreement and, with regard to the latter request, to negotiate improvements, if deemed necessary, to that provision. The Union was clear that it needed the information to determine whether to file a grievance and that the basis for such a grievance would be "non-compliance with the [IG] report" in addressing safety problems, such as those that had been cited by OSHA. G.C. Exh. 6. Similarly, in stating that it needed the Follow-Up IG Report "to assist us in developing proposals[,]" G.C. Exh. 16, the Union identified its need for documentation that it would use in contract negotiations. The Union reasonably believed that the two reports would assist it in determining whether the Respondent had taken sufficient steps to remedy the safety violations found by OSHA.(1) And, in my view, the Respondent should have understood that need from the language used by the Union in its requests and the context in which the requests were made.
In reaching this conclusion, I rely on the following: (1) the OSHA inspection referred to had followed a major explosion at the facility that had resulted in death and severe wounding of bargaining unit employees; (2) the IG reports followed the IG's review of safety procedures at the facility; and (3) the Health and Safety provision contained an agreement to "cooperate in a continuing effort to avoid, reduce the possibility of, and/or eliminate accidents, injuries, and health hazards in all areas under the Employer's control." G.C. Exh. 2 at 105. I note the recent observation of the Court of Appeals for the District of Columbia Circuit that "a Union surely is entitled to know how management has handled the problem in order to assess whether to pursue arbitration over an issue of workplace safety." Department of the Air Force, Scott Air Force Base v. FLRA, No. 96-1060, slip op. at 9 (D.C. Cir. Jan. 23, 1997). Moreover, even if the request for the Follow-Up Report did not identify the portion of the parties' agreement for which the Union sought the information, it is sufficient, in my view, that the Union articulated at least one valid reason for its request. I caution here that, as we stated in Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Kansas City Service Center, Kansas City, Missouri, 50 FLRA 661, 670 n.13 (1995) (IRS, Kansas City), "a request need not be so specific as, for example, to require a union to reveal its strategies . . . ." This is a valid concern with regard to both negotiations and grievance representation. In sum, I disagree strongly that either request was conclusory or constituted a bare assertion, as found by the majority.
Notwithstanding my view that the Union's request was sufficiently clear, however, I agree with my colleagues that the Respondent was not unreasonable in requesting clarification.(2) Thus, I agree that the requests were vague in some respects and could have been more specific in linking the requests to the Master Labor Agreement and to the bases for potential grievances. In the face of reasonable requests for clarification, the Union then had an obligation to promote the collective bargaining process by responding to those requests.(8) I take extremely seriously the Authority's admonition in IRS, Kansas City that, in determining whether disclosure is required, the Authority takes into consideration the parties' attempts at accommodating their respective needs. No accommodation is possible if the parties refuse to communicate with each other. Therefore, I join in this decision on the narrow ground that the Union made no attempt to clarify its requests when asked to do so, and, by its recalcitrance, effectively foreclosed the potential for accommodating the parties' respective interests. See IRS, Oklahoma City, 51 FLRA at 1397. I note, in this regard, that the decision on which the General Counsel relies to establish the importance of health and safety data stresses the "accommodative philosophy" espoused by the Supreme Court in Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979). Oil, Chemical & Atomic Workers, Local Union No. 6-418 v. NLRB, 711 F.2d 348, 360 (D.C. Cir. 1983).
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
| DEPARTMENT OF THE AIR FORCE, WASHINGTON, D. C. AND AIR FORCE
LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO
Respondents |
|
| and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Charging Party |
CH-CA-20459 (49 FLRA No. 57) |
Major Phillip G. Tidmore
William P.
Langley, Esq.
Counsel for the Respondents
Judith A. Ramey, Esq.
Counsel for the
General Counsel
Before: GARVIN LEE OLIVER
Administrative
Law Judge
DECISION ON REMAND
Statement of the Case
On March 23, 1994, the Authority remanded this consolidated unfair labor practice case to the undersigned in order to provide the parties an opportunity to address whether the Union has established a "particularized need" for either or both of the Inspector General Reports it had requested in November 1991 and April 1992. The Authority found it appropriate to remand the case because, in National Park Service, National Capitol Region, United States Park Police, 48 FLRA 1151 (1993) (National Park Service), after issuance of my recommended decision herein, the Authority adopted the D.C. Circuit's decision in National Labor Relations Board v. FLRA, 952 F.2d 523 (D.C. Cir. 1992)(NLRB v. FLRA), stating that "an agency is not obligated to provide a union with requested documents containing advice, guidance, counsel, or training materials provided for management officials under section 7114(b)(4) of the Statute unless the union demonstrates a particularized need, as set forth by the court [in NLRB v.FLRA], for such information."
On remand, the undersigned determined, in consultation with all parties, that a hearing was necessary to provide them an opportunity to address the "particularized need" issue. Accordingly, a hearing was scheduled for June 6, 1994, in San Antonio, Texas. Thereafter, Respondents filed a Motion for Change of Venue, urging that the hearing be held in Dayton, Ohio. The hearing was subsequently convened at that location on July 19, 1994.
The parties were afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. The Respondent and General Counsel filed briefs dated August 19, 1994, addressing the issue on remand, which have been carefully considered.
Findings of Fact
The underlying facts are set forth in my initial decision and the Authority's decision. See 49 FLRA at 604-05; 612-16. They will be repeated here only to the extent necessary to frame the issue on remand.
In July 1989, a B-52 bomber exploded at Kelly Air Force Base (Kelly AFB), killing one bargaining unit employee and wounding several others. Respondent Air Force Logistics Command (AFLC)(1) and the Occupational Safety and Health Administration (OSHA) conducted accident investigations, and copies of their reports were given to the Union.
Thereafter, beginning in December 1990, a team under the direction of the AFLC's Inspector General (IG) conducted a review of safety procedures at five Air Logistics Centers, including Kelly AFB. After the review, the IG prepared a "Report of Process Effectiveness Review" (IG Report), containing a series of candid comments and recommendations to AFLC management. The Union subsequently requested a copy of the IG Report in order to "determine if grounds exist for submission of a grievance because of non-compliance with the report in addressing the citations cited by OSHA as well as others." Respondent replied that the IG Report was releasable only by the Secretary of the Air Force, and asked the Union to clarify why it needed the requested information. The Union did not respond.
In October 1991, AFLC's IG conducted a follow-up review of the safety programs at each of the Air Logistics Centers previously studied, and issued a "Report of Follow-Up Safety Program Integration, Process Effectiveness Review" (Follow-Up IG Report). The Union requested a copy of the Follow-Up IG Report, stating that it was needed "to assist us in developing proposals for the upcoming . . . negotiations . . . [and] to determine whether any employee or Union rights have been violated and if they have, so the Union can take appropriate remedial action. . . ." Respondent again replied that the request should be made to the Secretary of the Air Force, and also advised the Union that the Air Force likely would not release the Follow-Up IG Report because it was "guidance and advice" to management and the Union had not demonstrated a "particularized need" for the information.
Positions of the Parties on Remand
On remand, the parties essentially repeated the same positions they took at the initial hearing in this case. Paul Palacio, the Union's former president, again testified on behalf of the General Counsel that the Union needed the requested IG Reports in order to prepare bargaining proposals to strengthen the existing "Health and Safety" provisions in the parties' collective bargaining agreement (Article 25). That is, Palacio testified that access to the safety deficiencies identified by the IG would enable the Union to target those areas with specific proposals instead of taking a "shotgun" approach. The General Counsel's post-hearing brief again emphasizes the Union's joint responsibility--along with management--under Article 25 of the parties' agreement to promote the health and safety of unit employees; the importance of the IG Reports in enabling the Union to determine whether the safety violations identified by OSHA had been corrected, or whether grievances should be filed to force the Respondent to implement the IG's recommendations designed to achieve those results; and the significance of the IG Reports in enabling the Union to formulate effective safety proposals to augment Article 25 of the parties' agreement. The General Counsel candidly admits that the circumstances of this case probably do not fall within the examples of "particularized need" identified by the D.C. Circuit in NLRB v. FLRA, but contends that the Union nevertheless has established such a need for the requested information.
Respondent again presented the testimony of Lieutenant Colonel Gregory McKillop, on behalf of the Inspector General, that the IG Report and the Follow-Up IG Report at issue in this case should remain privileged because the purpose of such inspection reports--to enable Air Force leaders to deliberate and make decisions about how to correct deficiencies and improve the Air Force--would be compromised if the reports were made public. More specifically, McKillop testified that the value of IG inspections and reports rests on free and frank interviews of individuals who are assured that their comments will remain confidential, and that making such reports public would inhibit their candor and prevent the acquisition of objective and complete information.(2) Additionally, McKillop stated that IG reports contain a lot of critical self analysis which is helpful in correcting deficiencies internally, but which would disappear if such reports were made public. In light of these important countervailing considerations, the Respondent contends that the Union has failed to establish a "particularized need" for the IG Report and the Follow-Up IG Report in this case.
Discussion and Legal Conclusions
The Authority found, and it is undisputed, that the IG Report and the Follow-Up IG Report requested by the Union in this case both constitute managerial guidance, advice, and counsel. Thus, the reports were prepared for use by management officials in making decisions concerning safety processes at five Air Logistics Centers, and in assessing whether previous recommendations by the IG for improving safety had been accomplished. As previously described, the reports contain both assessments of current safety operations, including identified deficiencies, and opinions and recommendations to management for improving such operations.
Accordingly, consistent with the Authority's decision in National Park Service, the Union is not entitled to receive the requested reports under section 7114(b)(4) of the Statute unless it has established a "particularized need" for them. While the General Counsel concedes that the Union's request "probably" does not fall within the two examples of "particularized need" identified by the D.C. Circuit in NLRB v. FLRA, the parties nevertheless disagree whether the Union has made the requisite showing. For the reasons set forth below, and based on the entire record in this case, I conclude that the Union has not established a particularized need for the requested reports, and that the Respondent therefore did not violate section 7116(a)(1) and (5) of the Statute by refusing to furnish a copy of them to the Union. In National Park Service, the Authority discussed the D.C. Circuit's decision in NLRB v. FLRA, as pertinent here, as follows:
The court set forth two examples of instances where a union could establish a particularized need for management guidance, advice, counsel, or training. In particular, the court held that a union may establish a particularized need for information "where the union has a grievable complaint covering the information[]" and/or where "the disputed document creates a grievable action." [952 F.2d] at 532, 533 (emphasis omitted). With respect to the former example, the court stated that, if a collective bargaining agreement contained a procedure requiring an agency to create documents containing intramanagement recommendations, then "the recommendations should normally be disclosed to the union, assuming the union could grieve the agency's failure to follow the procedure." Id. at 533. As for the latter example, the court hypothesized a situation where a lower-level supervisor confirmed in writing a counseling session regarding an employee's performance and an applicable collective bargaining agreement provided that such counseling was used to determine subsequent action by higher-level supervisors. The court stated that, in such a situation, a union would have a "strong and valid claim" to disclosure of the confirming memorandum under section 7114(b)(4) of the Statute because the union would need such memorandum "to determine whether the employee must be protected against the accumulation of negative evaluations in his or her personnel file. . . ." Id. However, the court held that documents "that are strictly 'intramanagement' normally will not be discoverable under [section] 7114(b)(4)(B)." Id. at n.6.
48 FLRA at 1155-56.
With respect to the first example of a particularized need set forth above, there has been no reference herein to a provision in the collective bargaining agreement between the parties which requires the Respondent to create documents containing intramanagement recommendations. The General Counsel has referred to Article 25 of the parties' agreement on several occasions. That lengthy provision, entitled "Health and Safety," does not contain a procedure requiring the creation of management reports, much less intramanagement recommendations. It does provide (in section 25.14) that the Respondent will conduct safety and health inspections or surveys as required to maintain a safe and healthful workplace, and that the Union can designate a representative to accompany the employer's inspector whenever a worksite inspection occurs. It also provides (in section 25.15) that when the employer conducts an industrial accident investigation involving or impacting upon bargaining unit employees, the Union has the right to meet with management's official(s) in charge of the investigation and provide recommendations or information concerning the matter under investigation. However, neither provision specifies that reports--containing intramanagement recommendations or not--will be prepared. Accordingly, the Union cannot establish a particularized need for the IG Report and/or the Follow-Up IG Report under the court's first example in the circumstances of this case.
Similarly, I conclude that the disputed documents do not create a grievable action within the meaning of the court's second example in NLRB v. FLRA, and therefore the Union has not established a particularized need for the information on that basis either. As previously stated, the Union sought a copy of the IG Report in order to "determine if grounds exist for submission of a grievance because of non-compliance with the report in addressing the citations cited by OSHA as well as others." It appears that the Union thought it had a need for the IG Report because the Respondent's failure to comply with the IG's recommendations for correcting the safety deficiencies cited by OSHA would constitute the basis for a grievable action. The fallacy of this reasoning is that the Respondent had no obligation to comply with the IG's recommendations in correcting the violations identified by OSHA. The record indicates, as I have previously found (49 FLRA at 614-15), that the IG Report set forth possible solutions for the responsible management officials to consider in correcting deficiencies in the programs and processes reviewed by the IG team. These possible solutions were generally set forth in the form of opinions and recommenda-tions rather than mandates. Indeed, AFR 123-1 specifically provides that "recommendations contained in an IG Report do not represent an approved Air Force position until final action is taken by the responsible Air Force agency." Thus, the responsible management officials at AFLC could have chosen to disregard the possible solutions recommended by the IG in his Report and instead to select other solutions to correct whatever deficiencies were identified by OSHA or during the IG's independent investigation. Accordingly, the Union's underlying assumption that the Respondent's noncompliance with the IG's recommendations would create a grievable action is simply erroneous.
Of course, this is not to say that the Respondent had no enforceable obligation to correct safety deficiencies noted by OSHA, the IG, or its own investigations. Indeed, Article 25 of the parties' agreement is replete with provisions which require the Respondent to create and maintain the safest possible workplace in cooperation with the Union. Therefore, the Union was entitled to know what actions, if any, the Respondent took to correct known safety problems. It had the right to obtain this information by asking the Respondent for documentation of the corrective measures taken in response to OSHA's citations and AFLC's own investigation report. The Union had copies of these documents and thus knew what information to request. Additionally, the Union could have discussed these matters with the Respondent at the periodic meetings of the "Safety and Health Committee" established by contract at each subordinate AFLC activity.(3) If the Union failed to obtain the information sought through these channels or the information furnished to the Union demonstrated that the Respondent had failed to correct the safety deficiencies in question, the Union could take appropriate action either under the parties' negotiated grievance procedure or the unfair labor practice procedures of the Statute. While the Union might find the IG's opinions and recommendations helpful in pursuing these remedial avenues, it had no particularized need for such information and could well proceed without it.
With respect to the Follow-Up IG Report, the Union additionally requested this information "to assist us in developing proposals for the upcoming Master Labor Agreement (MLA) negotiations." The General Counsel takes the position that the Union had a significant role to play under Article 25 of the MLA in terms of targeting known health and safety program deficiencies and taking corrective action, and wanted to strengthen that role during the upcoming negotiations, but could not do so without access to the IG Reports. More specifically, the General Counsel asserts that without the IG Reports the Union would be unable to assess whether existing contractual conditions had been satisfied or were adequate to address actual current health and safety conditions. Given the great importance of health and safety issues to the Union and the bargaining unit employees it represents, the General Counsel contends that the Union has established a particularized need for the IG Reports.
Even assuming that preparation for negotiations could constitute a basis for establishing a union's particularized need for requested information under certain circumstances,(4) in my judgment the Union did not establish a particularized need for the IG Reports in order to prepare for negotiations in this case. As previously found, the Union could have sought information directly from the Respondent concerning the steps taken to correct the safety deficiencies identified by OSHA and in the AFLC's own internal safety report, both of which were in the Union's possession,(5) and then formulated proposals based on the Respondent's answers. Additionally, the Union could have discussed its health and safety concerns with the Respondent at the bilateral local committee meetings established under the parties' negotiated agreement for that purpose, and then used the information obtained from such meetings to formulate bargaining proposals. Moreover, the Union could have prepared bargaining proposals in coordination with its own safety experts. While some of those proposals might duplicate efforts already taken by the Respondent to correct known safety deficiencies, or might be impractical for some reason unknown to the Union, such matters could be addressed in formal negotiations concerning Article 25. In short, while access to the IG Reports in question doubtless would have been helpful to the Union in preparing safety proposals for negotiation, I cannot conclude that the Union has demonstrated a particularized need for such information in the circumstances of this case.
In reaching the foregoing conclusion, I have carefully considered the Respondent's countervailing interests against disclosure of the IG Report and the Follow-Up IG Report. As the Authority quoted in adopting the D.C. Circuit's analysis in NLRB v. FLRA, "[a] statute that requires 'necessity' implicitly recognizes countervailing interests," and "the requisite strength of the union's 'need' will depend on the intensity of countervailing interests." National Park Service, 48 FLRA at 1154, quoting NLRB v. FLRA, 952 F.2d at 531. As the Authority further recognized (48 FLRA at 1155), the court in NLRB v. FLRA (952 F.2d at 532) also noted that "management often has a legitimate interest in preserving for itself, alone, information on 'guidance,' 'advice,' 'counsel,' or training provided for management officials" and that while such interest "is most weighty with respect to matters relating to the process of collective bargaining, . . . the interest also exists . . . in connection with all such information pertaining to subjects within the scope of collective bargaining." Accordingly, an "employer's interest in protecting the sanctity of information on 'guidance,' 'advice,' 'counsel' or 'training' for management officials must be weighed against a union claim of necessity under § 7114(b)(4)(B)." 952 F.2d at 532.
In this case, the Respondent has strong countervailing interests against disclosure of the IG Reports. Thus, as Lt. Col. McKillop testified, the purpose of inspection reports such as the ones involved herein is to enable the leaders of the Air Force to deliberate and make decisions about how to correct deficiencies and thereby improve the Air Force. The reports best serve that purpose if the employees interviewed by the IG's inspectors provide free and frank information. Releasing the interviewees' testimony to the public would inhibit them from providing the free and candid information needed by management if deficiencies are to be discovered and corrected. Additionally, the IG Reports contain a significant amount of critical self-analysis which could be expected to diminish in the future if such reports were released to the public. Therefore, weighing these considerations against the Union's "need" for the reports, I conclude that a particularized need has not been demonstrated.(6)
Based on the foregoing findings and conclusions, it is recommended that the Authority issue the following Order:
ORDER
The Complaints in Case Nos. CH-CA-20193 and CH-CA-20459 are dismissed.
Issued: June 23, 1995, Washington, DC
_____________________
GARVIN LEE OLIVER
Administrative Law Judge
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
Authority's Footnotes Follow:
1. Member Wasserman's concurring opinion is set forth at the end of this decision.
2. The Union simultaneously attempted to obtain access to the IG Report through the Freedom of Information Act (FOIA). The FOIA request was denied in July 1992.
3. The Judge stated that "the Union could have sought information directly from the Respondent concerning the steps taken to correct the safety deficiencies identified by OSHA and in the AFLC's own internal safety report, both of which were in the Union's possession, (footnote omitted) and then formulated proposals based on the Respondent's answers." Judge's Decision at 8. The Judge also stated that the Union could have utilized the labor-management committees under the parties' MLA to obtain information necessary to formulate bargaining proposals.
4. The Authority has accepted the court's view in NLRB v. FLRA, 952 F.2d at 532, that an agency has presumptive anti-disclosure interests in documents constituting intramanagement advice, guidance, counsel, and training. E.g., Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, Dallas, Texas, 51 FLRA 545, 549 (1995) (INS, Dallas). Because we find that the Union did not satisfy its burden of articulating and establishing particularized need for the information requested in this case, we do not address any presumptive or asserted anti-disclosure interests. See id. at 551 n.3.
5. In its remand order, the Authority expressly rejected this conclusion by the Judge, both as to the IG Report and the Follow-Up Report. However, the remand order predated articulation and application of IRS, Kansas City.
Concurring Opinion Footnotes Follow:
1. In this regard, I find it irrelevant that the Respondent may have been under no "obligation" to comply with any recommendations made by the IG, as found by the Judge. Judge's Decision at 6. That the reports may have contained no mandates has no bearing on their usefulness in identifying continuing problems and deficiencies and what the Respondent was doing--or not doing--to rectify those problems. I also disagree with the Judge's conclusion that the Union did not establish a need for the reports because it could have obtained the relevant information directly from the Respondent regarding corrective measures taken. In my view, it is naive to believe that, in circumstances such as existed here, an employer would voluntarily divulge investigative information that might also be contained in an IG report.
2. Although I find the Respondent's request for clarification to be reasonable, I question the sincerity of the Respondent in referring the Union to the Secretary of the Air Force for release of the reports. I note that the Judge found in his initial decision that the reports were available at the level of exclusive recognition and that, therefore, the Union properly requested them at that level. Department of the Air Force, Washington, D.C. and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 49 FLRA 603, 616 (1994), citing Department of Defense, Minot Air Force Base, North Dakota, 42 FLRA 235, 247 (1991).
3. In future cases where requests for clarification are raised, I will look carefully at the circumstances of each case to determine whether a request for clarification is "disingenuous or unreasonable," and, therefore, presents an insufficient basis on which to deprive a union of information that it needs to adequately discharge its representational responsibilities. 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 FLRA 1391, 1396 (1996) (IRS, Oklahoma City).
ALJ's Footnotes Follow:
1. AFLC has been renamed the Air Force Materiel Command, but the Respondent will continue to be referred to as the AFLC in this decision on remand.
2. The authority for assuring inspection witnesses that their testimony will remain within the Air Force is Air Force Regulations (AFR) 123-1, which provides that unclassified inspection reports are "privileged" documents with controlled distribution. They are marked "For Official Use Only," which means that persons who need such reports in order to perform their jobs may have access to them, but that "persons or agencies outside the Air Force" cannot have them even in part "without the express approval of the Secretary of the Air Force."
3. Section 25.03 of the parties' agreement, which creates such local safety and health committees, further provides that the Union has two permanent members thereon and a technical advisor as needed, and that the purpose of such committees is (in part) to consider occupational safety and health matters brought to their attention and make recommendations to the commander of the subordinate AFLC activity. By contract, such committees are to meet at least quarterly, but may be convened more frequently by mutual agreement if serious safety matters arise between scheduled meetings.
4. I note that, in remanding the instant proceeding, the Authority did not address what circumstances, in addition to the two examples set forth by the D.C. Circuit in NLRB v. FLRA, may establish such need. 49 FLRA at 609. See also National Park Service, 48 FLRA at 1165, n.13.
5. It appears that the Union also had a copy of the report prepared by the General Accounting Office which summarized the IG's Reports generally, but it is unclear from the record whether the Union obtained a copy of that report before the parties started negotiations. Such negotiations had not been concluded at the time of the hearing on remand in this case.
6. In reaching this conclusion, I recognize that the circumstances of this case differ from those involved in the three cases before the court in NLRB v. FLRA. Thus, as the General Counsel points out, the reports here were prepared in part on the basis of interviews with bargaining unit employees; were distributed to a number of components within the Air Force which had a job-related need for them; and were thorough, comprehensive treatments of health and safety matters of great importance to all bargaining unit employees rather than more narrowly focused. However, I find that these differences, even if considered cumulatively, do not compel a contrary conclusion in this case. Of course, I do not pass upon whether such factors might justify the finding of a particularized need in other circumstances.