Amer Fed Govt 2343 v. FLRA ( 1998 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 6, 1998 Decided May 29, 1998
No. 97-1355
American Federation of Government Employees, Local 2343,
Petitioner
v.
Federal Labor Relations Authority,
Respondent
On Petition for Review of an Order of the
Federal Labor Relations Authority
Judith D. Galat argued the cause for petitioner. With her
on the briefs was Mark D. Roth. Charles A. Hobbie entered
an appearance.
David M. Smith, Solicitor, Federal Labor Relations Au-
thority, argued the cause for respondent. With him on the
brief was James F. Blandford, Attorney. William R. Tobey,
Deputy Solicitor, and William E. Persina, Attorney, entered
appearances.
Before: Randolph, Rogers and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Tatel, Circuit Judge: After a government employer re-
fused to provide documents requested by a union in connec-
tion with a pending grievance, the Federal Labor Relations
Authority dismissed the union's unfair labor practice com-
plaint, finding that the union failed to articulate "particular-
ized need" for the documents. Because the Authority reason-
ably applied the appropriate legal standard, we deny the
union's petition for review.
I
Collective bargaining and labor relations in the federal
government are governed by the Federal Service Labor-
Management Relations Statute, Pub. L. No. 95-454, s 701, 92
Stat. 1191-1216 (1978) (codified as amended at 5 U.S.C.
ss 7101-7135 (1994 & Supp. II 1996)). That statute autho-
rizes a labor organization accorded exclusive recognition for a
unit of employees to act as the unit's exclusive representative,
5 U.S.C. s 7114(a)(1), and to participate in certain formal
discussions between the employer and employees in the unit,
id. s 7114(a)(2). The statute requires employers and exclu-
sive representatives to "meet and negotiate in good faith for
the purposes of arriving at a collective bargaining agree-
ment." Id. s 7114(a)(4). Under the statute, collective bar-
gaining agreements must establish procedures for the settle-
ment of grievances, id. s 7121(a)(1), including arbitration, id.s 7121(b)(1)(C)(iii). Central to this case, section 7114(b)(4) of
the statute requires agencies, as part of their obligation to
negotiate in good faith, to provide exclusive representatives
upon request with information:
(A)which is normally maintained by the agency in the
regular course of business;
(B)which is reasonably available and necessary for full
and proper discussion, understanding, and negotia-
tion of subjects within the scope of collective bar-
gaining; and
(C)which does not constitute guidance, advice, counsel,
or training provided for management officials or
supervisors, relating to collective bargaining....
Id. s 7114(b)(4)(A)-(C).
Interpreting section 7114(b)(4)(B), this court requires that
unions demonstrate "particularized need" for information
they seek. Department of the Air Force, Scott Air Force
Base v. FLRA, 104 F.3d 1396, 1400 (D.C. Cir. 1997) (citing
NLRB v. FLRA, 952 F.2d 523, 531-32 (D.C. Cir. 1992)). In
response to a union request for information, we require the
employer to balance the union's particularized need against
its own countervailing anti-disclosure interest. U.S. Dep't of
Justice, Bureau of Prisons, Allenwood Fed. Prison Camp v.
FLRA, 988 F.2d 1267, 1270 (D.C. Cir. 1993). Applying the
"particularized need" standard, the Authority requires a un-
ion to "articulat[e], with specificity, why it needs the request-
ed 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 Stat-
ute." IRS, Wash., D.C., and IRS, Kansas City Serv. Ctr.,
Kansas City, Mo., 50 F.L.R.A. 661, 669 (1995). Because
enabling the employer to weigh its privacy interests against
the union's disclosure interests is one of the purposes of the
articulation requirement, the union ordinarily may not rely
upon conclusory assertions of need. See Allenwood Fed.
Prison Camp, 988 F.2d at 1271; IRS, Kansas City, 50
F.L.R.A. at 670.
This case arises from a February 1993 disturbance in a
federal penitentiary in Marion, Illinois. Immediately after
correctional officers released an inmate named Baptiste from
segregated confinement into the prison recreation area, Bap-
tiste "squared off" to fight another inmate, causing several
officers--one of whom was injured in the incident--to subdue
Baptiste and return him to the segregation unit. Afterwards,
a supervisor accused Officer Aubrey Francis, one of the
officers who removed Baptiste, of using excessive force.
When the matter was referred to the Bureau of Prison's
Office of Internal Affairs, Francis was placed on "home duty"
for the duration of the investigation.
The American Federation of Government Employees,
AFL-CIO, Local 2343 filed a grievance alleging that by
releasing an inmate with known violent tendencies into the
general prison population, the penitentiary violated the collec-
tive bargaining agreement's health and safety provision.
Seeking a complete investigation of all supervisors involved in
the incident, the grievance accused the penitentiary of:
a systematic and calculated effort on the part of the
above mentioned supervisors to violate the civil rights of
these two inmates and force staff into a position of
having to fight an inmate when there was no need.
Because of this effort on these individuals [sic] part one
Officer is at home on "home duty" because of a memo
written by a supervisor and one Officer is hurt and may
never work again trying to transport Baptiste back to 1
Unit.
Asserting that it had legitimate reasons for releasing Bap-
tiste, the penitentiary denied the grievance. The Union then
invoked the collective bargaining agreement's arbitration
clause.
Preparing for arbitration, the Union asked the penitentiary
for all materials in its possession relating to the Baptiste
incident, saying only that it needed the information "to pre-
pare the case for arbitration." When the penitentiary failed
to respond, the Union made a second request, this time
invoking section 7114(b)(4) and stating that it needed the
information to "effectively carry out its representational obli-
gation in processing of a grievance (in this case the arbitra-
tional hearing)" because "[m]anagement has this information
to present during the arbitration and the Union needs this
same information so it may effectively present its case." The
penitentiary denied the request, concluding that the Union
had failed to articulate particularized need since "none of the
allegations of staff misconduct were substantiated by the
investigation report you are requesting." The Union then
filed an unfair labor practice charge with the Authority.
Reviewing in camera two OIA reports--one concerning the
Francis investigation and the other an allegation that a
correctional officer made a false statement during the investi-
gation--the administrative law judge found that because both
reports included information supporting the Union's claim
that correctional officers knew of Baptiste's violent tenden-
cies, the information was "necessary" for purposes of section
7114(b)(4)(B). Because the ALJ also found that the Union
failed to establish "particularized need" for the documents,
however, he concluded that the penitentiary's refusal to fur-
nish them did not violate the statute.
Over the dissent of one member, the Authority adopted the
ALJ's conclusion. Characterizing as "conclusory" the Union's
claim that it "needed the information to prepare for arbitra-
tion of its previously filed grievance," the Authority found
that the Union failed to articulate particularized need for the
documents. U.S. Dep't of Justice, Fed. Bureau of Prisons,
U.S. Penitentiary, Marion, Ill., 52 F.L.R.A. 1195, 1202
(1997). The Authority then examined the grievance itself to
decide whether, notwithstanding the Union's failure to articu-
late particularized need, the penitentiary could have made a
reasoned judgment about its obligation to disclose the infor-
mation. Acknowledging that the Union claimed at the hear-
ing before the ALJ that it was grieving both whether Francis
was wrongly placed on home duty and whether correctional
officials created a safety risk by releasing Baptiste, the
Authority concluded, based on its reading of the original
grievance--the only document the agency had before it when
it rejected the Union's request--that the home duty issue
"was not one that the [penitentiary] had reason to know was
part of the arbitration for which the Union requested infor-
mation." Id. at 1203. Also finding that "the Union never
explained to the [penitentiary] why it needed the information
developed by the OIA investigation of [Francis] in order to
show that the inmate's release adversely affected health and
safety," id., the Authority ruled that the penitentiary had not
committed an unfair labor practice.
The Union now petitions for review of the Authority's
decision. Reviewing Authority orders in accordance with
section 10(e) of the Administrative Procedure Act, 5 U.S.C.
s 706 (1994); see id. s 7123(c), we uphold its determinations
unless they are "arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law." Id. s 706(2)(A).
Our review is "narrow." See Overseas Educ. Ass'n, Inc. v.
FLRA, 858 F.2d 769, 771 (D.C. Cir. 1988). As long as the
Authority's factual findings are supported by "substantial
evidence on the record considered as a whole," they are
"conclusive." 5 U.S.C. s 7123(c).
II
Because the Authority's decision turned in no small part
upon its interpretation of the scope of the Union's grievance,
we must first consider whether the Authority erred in finding
that the grievance presented only the health and safety issue
and not whether Francis was wrongly placed on home duty.
Although the parties disagree about the proper standard of
review--the Union argues that our review is de novo while
the Authority urges us to review for substantial evidence--we
need not resolve that issue because we conclude that under
any standard of review the Authority got it right.
From the plain language of the grievance, we think it
unmistakable that the Union complained only about the safety
consequences of releasing Baptiste, not about placing Officer
Francis on home duty. Not only does the entire grievance
focus on the decision to release Baptiste, but the grievance
never alleges that placing Francis on home duty was improp-
er. It mentioned Francis only to illustrate that Baptiste's
release had unfortunate consequences. To be sure, the Union
later claimed at the hearing before the ALJ that it was
grieving the Francis issue. At the time the penitentiary
decided against delivering the documents, however, it had
before it only the Union's written grievance. It therefore had
notice only of the Union's intent to grieve the health and
safety issue.
The question, then, is whether the Authority erred by
finding that the Union failed sufficiently to articulate the
connection between the information it wanted and its interest
in grieving the health and safety issue. Conceding that it
told the penitentiary no more than that it needed the informa-
tion to prepare for arbitration, the Union argues that this
suffices to satisfy the particularized need test because the
connection between the information and the grievance is
"self-evident." There may well be cases where the connec-
tion between the information a union seeks and the grievance
is so clear that the union's need is self-evident. That might
have been the case here if the reports at issue were entitled
"Health and Safety Effects of the Penitentiary's Decision to
Release Baptiste into the General Prison Population." But
the reports in this case concerned events at least one step
removed from the decision to release Baptiste. The reports
related only to Officer Francis's activities on the day of the
incident and an alleged false statement made in connection
with the Francis investigation. Under these circumstances,
the Authority reasonably concluded that the Union's need for
the documents was not self-evident. The Authority requires
unions to articulate particularized need to ensure that in
cases like this, where the documents sought are not obviously
relevant to the subject of the grievance, the employer has
sufficient information about exactly why the union needs the
information in order to weigh the union's interest against any
countervailing interest the employer might have in privacy
and non-disclosure. Because the reports the Union wants in
this case could contain all sorts of material--some of which
the Union may need but some of which it may not--merely
stating that it needs the reports to prepare for arbitration
does not give the employer sufficient information to weigh the
competing interests in any meaningful way.
Relying on NLRB v. FLRA and Scott, the Union argues
that where, as here, the requested documents discuss a
specific incident about which the Union has filed a grievance,
particularized need is automatically established. The Union
points to our statements in NLRB that a union "may" meet
the particularized need standard when it has a grievable
complaint covering information regarding agency action
against an employee and that "disclosure normally should
obtain" if a duty imposed by statute or contract with respect
to predecisional deliberation "ground[s] a grievable claim of
right in the employee or union," NLRB v. FLRA, 952 F.2d at
532-33. Not only does nothing in NLRB hold that the
existence of a grievance always suffices to establish particu-
larized need, but in subsequent decisions, both this court and
the Authority required unions to "articulate" particularized
need. See Allenwood Fed. Prison Camp, 988 F.2d at 1271;
IRS, Kansas City, 50 F.L.R.A. at 669-70. The articulation
requirement gives content to the "particularized" part of the
test by requiring not just that there be a need--a standard
that unions probably could meet whenever seeking informa-
tion in connection with a grievance--but also that unions
explain with some specificity why they need the information.
Nor does Scott support the Union's argument. Seeking a
disciplinary letter issued by the base to a supervisor who
allegedly struck an employee, the union in that case went well
beyond simply saying that the letter concerned the events
involved in the grievance. It articulated a specific reason for
needing the letter--to know whether (and if so how) the base
had already disciplined the supervisor so it could determine
whether to pursue arbitration. See Scott, 104 F.3d at 1400-
01; Department of the Air Force, Scott Air Force Base, Ill.,
51 F.L.R.A. 675, 677 (1995); see also Department of Justice,
INS, N. Region, Twin Cities, Minn. v. FLRA, No. 97-1388,
slip op. at 9 (D.C. Cir. May 29, 1998) (finding that union met
need test by asserting it needed documents to compare
discipline that employee had received with discipline received
by other employees committing similar offenses).
The Union argues that the Authority's application of the
particularized need test requires it to predict the contents of
documents to which it has not yet had access, as well as to
reveal its strategy for the upcoming arbitration. We share
this concern. The Authority may not, as it clearly recognizes,
see IRS, Kansas City, 50 F.L.R.A. at 670 n.13, apply the
particularized need test to ask unions the impossible--to
describe documents they have not seen--or to require unions
to reveal so much about their need for the information that
employers will enjoy an unfair advantage at arbitration. In
this case, the Authority did neither. As we read the Authori-
ty's decision, the Union could have satisfied its obligation to
articulate particularized need merely by saying that it needed
the information to determine whether correctional officers
knew about Baptiste's violent tendencies. Such a statement
would neither require knowledge of the documents nor reveal
strategic information.
We recognize that the particularized need test asks unions
to walk a fine line between saying too little and saying too
much. While we emphasize here that the Authority must not
require unions to say too much, we conclude that the Authori-
ty committed no error by finding that, in this case, the Union
said too little.
The petition for review is denied.
So ordered.