DOJ v. FLRA ( 1998 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 12, 1998 Decided May 29, 1998
No. 97-1388
Department of Justice, Immigration and Naturalization
Service, Northern Region,
Twin Cities, Minnesota,
Petitioner
v.
Federal Labor Relations Authority,
Respondent
National Border Patrol Council,
American Federation of Government Employees, AFL-CIO,
Intervenor
On Petition for Review and Cross-Application for
Enforcement of an Order of the
Federal Labor Relations Authority
Howard S. Scher, Attorney, U.S. Department of Justice,
argued the cause for petitioner. With him on the briefs were
Frank W. Hunger, Assistant Attorney General, and William
Kanter, Attorney.
David M. Smith, Solicitor, Federal Labor Relations Au-
thority, argued the cause for respondent. With him on the
brief was Shari Polur, Attorney.
Mark D. Roth and Stuart A. Kirsch were on the brief for
intervenor National Border Patrol Council. Charles A. Hob-
bie entered an appearance.
Before: Randolph, Rogers and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Tatel, Circuit Judge: On remand from this court's decision
in U.S. Department of Justice v. FLRA, 39 F.3d 361 (D.C.
Cir. 1994), the Federal Labor Relations Authority found that
a government employer committed an unfair labor practice by
refusing to provide documents requested by a union repre-
senting an employee in a disciplinary action. Because the
Authority properly concluded both that the union sought the
documents in its capacity as exclusive representative and that
the union needed the documents to assist the employee, we
deny the employer's petition for review.
I
In AFGE, Local 2343 v. FLRA, No. 97-1355, slip op. at 2-3
(D.C. Cir. May 29, 1998), also issued today, we describe the
framework of the Federal Service Labor-Management Rela-
tions 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)), including the right of exclusive representa-
tives to request from agencies information that is "necessary
for full and proper discussion, understanding, and negotiation
of subjects within the scope of collective bargaining," 5 U.S.C.
s 7114(b)(4)(B). Unlike Local 2343, where a union invoked
section 7114(b)(4) in connection with a pending grievance, this
case arises at the "oral reply" stage of the process for
disciplining employees, an event occurring prior to the point
at which a grievance can be filed. At the oral reply, employ-
ees are entitled to "answer [the charges against them] orally
and in writing" and to "be represented by an attorney or
other representative." Id. s 7513(b)(2)-(3).
Following an investigation into allegations of theft, falsifica-
tion, and conduct unbecoming an officer, the Immigration and
Naturalization Service notified employee Jason Wood of its
intent to remove him from his position as a Border Patrol
agent. Wood asked the National Border Patrol Council of
the American Federation of Government Employees, AFL-
CIO, to help him prepare his response to the notice. Invok-
ing its rights as exclusive representative under section
7114(b)(4), the Union asked the INS for the entire investiga-
tive file, all proposal and decision notices for disciplinary
and/or adverse action cases similar to Wood's within INS's
Northern Region in the past five years, and several other
related documents. The Union said it needed the disciplinary
records to "properly respond to the allegations" against
Wood. Responding that the Union was entitled only to
information relied upon in preparing the proposed disciplin-
ary action and that the Union's reference to section 7114(b)(4)
was "not appropriate," the INS gave the Union a copy of the
investigatory report, but nothing more. When the Union
reiterated its request for the disciplinary records, saying that
it needed them to determine whether Wood's proposed disci-
pline was consistent with the discipline meted out to other
employees for similar offenses, the INS again declined, stat-
ing that disclosure would violate the privacy rights of employ-
ees whose records were sought. The Union offered to take
the records in sanitized form, but the INS still refused to
release them. After Wood's oral reply, the INS reduced the
proposed removal to a five-day suspension. The Union then
filed a grievance and invoked arbitration.
Initiating the proceedings now before us, the Union filed
unfair labor practice charges against the INS. Following a
hearing, the administrative law judge concluded that the
disciplinary records satisfied the requirements of section
7114(b)(4)--i.e., they were "normally maintained," "reason-
ably available," "necessary," and not otherwise barred from
disclosure. The Federal Labor Relations Authority agreed,
finding that the Union had a "clear, articulated need" for the
requested disciplinary records--i.e., to assist Wood in re-
sponding to the proposed removal action. U.S. Dep't of
Justice, Wash., D.C., and U.S. INS, N. Region, Twin Cities,
Minn., and Office of Inspector Gen., Wash., D.C., and Office
of Prof'l Responsibility, Wash., D.C. ("Twin Cities I"), 46
F.L.R.A. 1526, 1536 (1993). Because the INS refused to
provide the requested information, the Authority ruled that
the agency committed an unfair labor practice by failing to
comply with section 7114(b)(4). Id. at 1536-38.
Reversing and remanding, this court concluded that the
Authority failed to frame its analysis in terms of the "particu-
larized need" test of NLRB v. FLRA, 952 F.2d 523 (D.C.Cir.
1992), directing the agency to "analyze anew the union's
document request under the principles" of that case. DOJ,
39 F.3d at 369-70. On remand, the Authority noted that it
had since directly addressed NLRB v. FLRA in IRS, Wash-
ington, D.C., and IRS, Kansas City Service Center, Kansas
City, Missouri, 50 F.L.R.A. 661 (1995), where it held that "a
union requesting information under [section 7114(b)(4)] must
establish particularized need for the information by articulat-
ing, 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 repre-
sentational responsibilities under the Statute." U.S. Dep't of
Justice, INS, N. Region, Twin Cities, Minn. ("Twin Cities
II"), 51 F.L.R.A. 1467, 1472 (1996) (quoting INS, Kansas
City, 50 F.L.R.A. at 669). Applying that standard, the Au-
thority found that the Union had met its burden of establish-
ing particularized need for the disciplinary records. The
union, the Authority pointed out, had "explicitly connected its
request with the adverse action the [INS] proposed to take
against Wood by stating that the requested information was
needed to 'properly respond to the allegations' set forth in the
notice," and asserted "that it needed the records in order to
compare the discipline the [INS] had proposed for Wood with
that given to other employees who had committed similar
offenses." Id. at 1473-74. The Authority also found that the
INS failed to demonstrate any countervailing anti-disclosure
interests and questioned whether any such interests even
existed since the Union agreed to take the disciplinary rec-
ords in sanitized form. Id. at 1479 n.11. Although conceding
that the Union was not required to represent Wood, the
Authority rejected the INS's argument that the Union had
not requested the information in its capacity as "exclusive
representative," as well as its argument that even if it had
requested the documents in that capacity, the disciplinary
records were not relevant to preparing for an oral reply
because they concerned defenses that should be raised later
in a grievance. Id. at 1478. For all of these reasons, the
Authority again ruled that the INS committed an unfair labor
practice. Id. at 1479.
Having filed an unsuccessful petition for reconsideration,
U.S. Dep't of Justice, INS, N. Region, Twin Cities, Minn.
("Twin Cities III"), 52 F.L.R.A. 1323, 1338 (1997), the INS
now petitions for review of the Authority's decision. We
review 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), upholding its determinations unless they are
"arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law." Id. s 706(2)(A); see also Local
2343, slip op at 6.
II
In support of its argument that it had no duty to provide
the disciplinary records, the INS claims that a union does not
act in its capacity as "exclusive representative" when it
represents an employee facing proposed disciplinary action
because, at that stage of the disciplinary process, the employ-
ee can choose not to be represented by the union. The INS
also points out that since a mere proposal to discipline an
employee is not grievable, a union can decline an employee's
request for representation at the oral reply stage. According
to the INS, therefore, as Wood's representative of choice at
the oral reply stage, the Union had not requested the records
in its capacity as "exclusive representative."
Although neither party addresses the appropriate standard
of review, the issue in this case--whether the Union acted as
"exclusive representative" under the Federal Service Labor-
Management Statute--presents a straightforward question of
statutory interpretation subject to the familiar two-step test
of Chevron U.S.A. Inc. v. Natural Resources Defense Coun-
cil, Inc., 467 U.S. 837 (1984). See Fort Stewart Schs. v.
FLRA, 495 U.S. 641, 644-45 (1990) (applying Chevron analy-
sis to the Authority's interpretation of the FSLMRS). If
Congress has spoken directly to the "precise question at
issue," we must give effect to its "unambiguously expressed
intent." Chevron, 467 U.S. at 842-43. If, however, the
statute is silent or ambiguous with respect to the specific
issue, we defer to the Authority's interpretation, so long as
that interpretation is reasonable. Id. at 843-44.
We begin with the language of the statute. Section
7103(a)(16) defines "exclusive representative" as any labor
organization which:
(A) is certified as the exclusive representative of em-
ployees in an appropriate unit pursuant to section 7111 of
this title; or
(B) was recognized by an agency immediately before
the effective date of this chapter as the exclusive repre-
sentative of employees in an appropriate unit--
(i) on the basis of an election, or
(ii) on any basis other than an election,
and continues to be so recognized in accordance with the
provisions of this chapter[.]
5 U.S.C. s 7103(a)(16). Nothing in this definition, section
7114(b)(4), or any other part of the statute strips a union of
exclusive representative status, once so designated, when it
chooses to represent an employee at the oral reply stage. In
fact, representing an employee at an oral reply falls comfort-
ably within an exclusive representative's broad section
7114(a)(1) power to "act for ... all employees in the unit," id.s 7114(a)(1). Applying Chevron's first step, then, we think
the statute entitled the Union in this case to take advantage
of section 7114(b)(4)'s informational rights when it represent-
ed Wood at his oral reply.
Even if the statute's language were ambiguous, we would
find the Authority's holding in this case to be a perfectly
reasonable interpretation of the statute. See Chevron, 467
U.S. at 843-44. Once an employee asks a union for represen-
tation at the oral reply stage and the union agrees, we cannot
imagine what would be gained by then denying the union the
information it needs to perform its statutory duty. To be
sure, exclusive representatives may decline employees' re-
quests for representation at the oral reply stage. See AFGE,
Local 1857, AFL-CIO, 46 F.L.R.A. 904, 911-13 (1992). Em-
ployees may even retain non-union counsel and exclude the
exclusive representative from oral reply proceedings. See
U.S. Dep't of Justice, Bureau of Prisons, Fed. Correctional
Inst. (Ray Brook, NY), 29 F.L.R.A. 584, 592-93 (1987). But
as the Authority points out, these possibilities have nothing at
all to do with the authority unions possess when they do in
fact represent employees at oral replies. See Twin Cities II,
51 F.L.R.A. at 1478. Indeed, even if the Union had not
represented Wood at the oral reply, it could have obtained
the disciplinary records by articulating a particularized need
for the information in terms of fulfilling its representational
duties and overseeing the administration of the collective
bargaining agreement. See AFGE, AFL-CIO, Local 1345 v.
FLRA, 793 F.2d 1360, 1364-65 (D.C. Cir. 1986).
According to the INS, the Authority's interpretation preju-
dices employees who choose non-union representation. That
may well be true, but we think the imbalance between union
and non-union representation is not necessarily suspect. Em-
ployees might choose union representation over outside coun-
sel at oral replies precisely because unions can obtain infor-
mation under section 7114(b)(4). This result makes sense in
view of the unique and central role unions play in ensuring an
efficient and peaceful federal workforce. See 5 U.S.C.
s 7101(a)(1) (recognizing that the right of workers to select
"labor organizations of their own choosing ... contributes to
the effective conduct of public business, and ... facilitates
and encourages the amicable settlements of disputes").
Moreover, as exclusive representatives charged with acting
for unit members and negotiating collective bargaining agree-
ments, see id. s 7114(a)(1), unions seek to vindicate not just
employees' individual interests at the oral reply, as the INS
contends, but also the bargaining unit's broader interest in
the proper administration of the collective bargaining agree-
ment. By obtaining related disciplinary records at the oral
reply stage, for example, the union might convince the agency
to reduce the proposed punishment, thus possibly avoiding a
grievance and promoting the bargaining unit's interest in
expeditious resolution of labor disputes.
Neither Department of the Air Force, Scott Air Force
Base, Illinois, 104 F.3d 1396 (D.C. Cir. 1997), nor Depart-
ment of Defense Office of Dependent Schools, 36 F.L.R.A. 871(1990), requires a different result. In Scott, we considered
whether a disciplinary letter that a union requested from the
Air Force base involved a grievable subject within the scope
of the collective bargaining agreement, not whether the union
could actually bring a grievance at that point in the proceed-
ings. Here, the INS makes no claim that the Union's need
for the disciplinary records--to make a disparate treatment
argument--fell outside the scope of the collective bargaining
agreement. Office of Dependent Schools is equally irrelevant.
There, the Authority concluded that the employer's refusal to
disclose the addresses of tentatively hired teachers did not
violate section 7114(b)(4), stating: "Based on the remoteness
and uncertainty of the recruits' prospective employment in
the bargaining unit, we find that the record does not support
a finding that the Union needed the recruits' home addresses
in order to carry out its representational responsibilities."
Id. at 874. This "remoteness" rationale has no applicability
here. There is no question that Wood was a member of the
bargaining unit, that the agency notified him of his proposed
removal, that the information requested related to the terms
of his employment, and that the Union agreed to serve as his
representative. The Union's need for the documents was
therefore imminent and definite, not "remote and uncertain."
III
Having determined that the Union may invoke its informa-
tional rights under section 7114(b)(4), we turn to the second
issue in this case: Were the disciplinary records the Union
requested "necessary" at the oral reply stage? In NLRB v.
FLRA, we distinguished section 7114(b)(4)'s "necessary" stan-
dard from the concept of "relevance," holding that the section
entitles unions to "something less than what full 'discovery'
might require." 952 F.2d at 531.
The INS argues that the Authority failed to apply NLRB v.
FLRA's "necessity" standard, claiming that it merely found
that the documents were relevant at the oral reply stage. We
read the Authority's decision differently. Clearly focusing on
"necessity" rather than relevance, the Authority found that
after originally requesting the documents "to 'properly re-
spond to the allegations' set forth in the notice," Twin Cities
II, 51 F.L.R.A. at 1473 (quoting Twin Cities I, 46 F.L.R.A. at
1556), the Union later said it needed the documents "in order
to compare the discipline the [INS] had proposed for Wood
with that given to other employees who had committed
similar offenses," id. at 1473-74. Further focusing on "neces-
sity," the Authority credited the Union's statement that it
requested records spanning five years and covering an entire
geographic region because the number of disciplinary actions
was small. Id. at 1474. To be sure, the Authority said that
"information establishing ... disparate treatment [is] rele-
vant in an oral reply." Id. at 1478. But this statement came
in response to the INS's assertion that the disciplinary rec-
ords were irrelevant at the oral reply stage and only after the
Authority had already concluded that "the Union satisfied its
burden to articulate and establish a particularized need for
the requested disciplinary and adverse action letters." Id. at
1476.
Claiming that information regarding disparate treatment is
unnecessary until the grievance stage, the INS argues that
the only information the Union needed to prepare for Wood's
oral reply was the investigatory report upon which the INS
had based its proposed discipline and which it had already
given the Union. The Authority labeled this effort to distin-
guish between preparing for an oral reply and preparing for
grievance proceedings a "false line." Id. at 1478. We agree.
The oral reply is not limited to whether the employee commit-
ted the alleged offense. As this case demonstrates--after
Wood's presentation, the agency reduced the proposed termi-
nation to a five-day suspension--the oral reply also encom-
passes the appropriate punishment. In fact, for employees
who admit they committed the alleged offense but believe the
proposed punishment does not fit the crime, evidence of
disparate treatment constitutes their only available defense.
Information about how an agency disciplines other employees
is thus "necessary" at the oral reply stage.
The INS points to an Authority regulation stating that
"[t]he notice of [proposed action] shall inform the employee of
his or her right to review the material which is relied on to
support the reasons for action given in the notice." 5 C.F.R.
s 752.404(b)(1) (1997). Nothing in that regulation, however,
supports the INS's argument that employees have no need
for disparate treatment information at the oral reply stage.
The regulation says no more than that employees have a right
to review information forming the basis of proposed charges
and discipline, information that the parties agree is "neces-
sary" for oral reply purposes. As counsel for the Authority
explained at oral argument, the regulation places a floor
under, not a ceiling on, the types of information that might be
necessary to respond to proposed disciplinary action.
Finally, by arguing that the Authority found that the Union
satisfied the particularized need test not because it needed
the disciplinary records at the oral reply stage, but because it
might need the records once the agency disciplined Wood, the
INS misconstrues the Authority's decision. In saying that
"[t]he matter for which representation was sought was direct-
ly related to Wood's conditions of employment and, ultimate-
ly, ripened into a matter that is grievable and arbitrable,"
Twin Cities II, 51 F.L.R.A. at 1478, the Authority was merely
explaining the Union's "exclusive representative" capacity,
not determining that the documents were unnecessary until
the grievance stage.
IV
The Union asks us to sanction the INS for pursuing this
appeal because in its petition for reconsideration before the
Authority, the agency revealed that it no longer had the
requested documents. Even though the Authority presumed
the INS had destroyed some of the documents, Twin Cities
III, 52 F.L.R.A. at 1337, we decline the Union's request. For
one thing, whether the agency committed an unfair labor
practice by refusing the Union's request for the disciplinary
records--the only issue before us--is unaffected by whether
the agency might have later destroyed them. See AFGE,
Local 1941, AFL-CIO v. FLRA, 837 F.2d 495, 497 n.2 (D.C.
Cir. 1988) (unfair labor practice not mooted by employee's
death); see also Department of Justice v. FLRA, 991 F.2d
285, 289 (5th Cir. 1993) ("[Unfair labor practice] cases ...
generally do not become moot when the individual parties
resolve the specific matter that gave rise to the dispute
because the 'Board is entitled to have the resumption of the
unfair practice barred by an enforcement decree.' " (quoting
NLRB v. Raytheon Co., 398 U.S. 25, 27 (1970))). Moreover,
recognizing its power to punish the INS for destroying docu-
ments, the Authority left the issue for the compliance stage,
saying "the assertion concerning destruction of the docu-
ments is unsubstantiated and unclear." Twin Cities III, 52
F.L.R.A. at 1337. Under these circumstances, we think
consideration of sanctions is premature.
The INS's petition for review is denied.
So ordered.