ORAL ARGUMENT SCHEDULED FOR MARCH 12, 1998
No. 97-1388
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_______________________________
UNITED STATES DEPARTMENT OF JUSTICE, IMMIGRATION AND
NATURALIZATION SERVICE,
NORTHERN REGION, TWIN CITIES, MINNESOTA,
Petitioner
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
and
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
BRIEF FOR THE
FEDERAL LABOR RELATIONS AUTHORITY
DAVID M. SMITH
Solicitor
SHARI POLUR
Attorney
Federal Labor Relations Authority
607 14th Street, N.W.
Suite 330
Washington, D.C. 20424-0001
(202) 482-6620
ORAL ARGUMENT SCHEDULED FOR MARCH 12, 1998
CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES
A. Parties and amici
Appearing below in the administrative proceeding
before the Federal Labor Relations Authority were the U.S. Department of
Justice, Immigration and Naturalization Service, Northern Region, Twin Cities,
Minnesota and National Border Patrol Council, American Federation of Government
Employees. The union is the petitioner in this court proceeding; the Authority
is the respondent; National Border Patrol Council, American Federation of
Government Employees, AFL-CIO is the intervenor.
B. Rulings under review
The rulings under review in this case are the Authority's Decision and
Order on Remand issued on June 28, 1996, reported at 51 FLRA (No. 119)
1467; and the Authority's Decision and Order on Reconsideration on April
14, 1997, reported at 52 FLRA (No. 121) 1323 in U.S. Department of
Justice, Immigration and Naturalization Service, Northern Region, Twin
Cities, Minnesota and National Border Patrol Council, American
Federation of Government Employees, Case No. 7-CA-10373.
C. Related Cases
This case was previously before this Court in U.S. Department of
Justice; Immigration and Naturalization Service, Northern Region, Twin
Cities, Minnesota, Office of the Inspector General, Washington, D.C.;
and Office of Professional Responsibility, Washington, D.C. v. FLRA, 39
F.3d 361 (D.C. Cir. 1994). Counsel for the Authority is unaware of any
cases pending before this Court which are related to this case within
the meaning of Local Rule 28(a)(1)(C).
TABLE OF CONTENTS
STATEMENT OF JURISDICTION 1
STATEMENT OF THE ISSUES 2
STATEMENT OF THE CASE 2
I. Nature of the Case 2
II. Statement of the Facts 4
III. Litigation of the Union's Request for Documents 7
A. Twin Cities I 7
B. DOJ v. FLRA 7
C. Twin Cities II 8
D. Twin Cities III 10
1. Exclusive representative status 11
2. Particularized need 11
STANDARD OF REVIEW 12
SUMMARY OF THE ARGUMENT 14
ARGUMENT 17
I. WHEN REPRESENTING AN EMPLOYEE IN RESPONDING TO A PROPOSED
REMOVAL, AN EXCLUSIVE REPRESENTATIVE HAS THE RIGHT TO REQUEST
INFORMATION PURSUANT TO SECTION 7114(b)(4) 17
A. Review of previous case law 17
1. Exclusive representative's duty of fair representation 17
2. Exclusive representative's right to be present at an oral
reply to a proposed adverse action 19
B. Precedent establishing the scope of the duty
of fair representation and the right to be
present at an oral reply is distinguishable
and does not define the Union's role 20
C. Precedent establishing the scope of the duty
of fair representation and the right to be
present at an oral reply does not address or
delimit information rights 21
1. At this stage in the proceedings, the
prospect of a statutory appeal is not
dispositive of the Union's right to
information 21
2. The Union could have obtained information
of this type even if it were not representing
the employee 22
3. The existence of a statutory appeal is not otherwise a bar to the
union's exercise of its rights as an exclusive representative 24
II. WHEN REPRESENTING AN EMPLOYEE IN RESPONDING TO A
PROPOSED REMOVAL, AN EXCLUSIVE REPRESENTATIVE IS
ENTITLED TO SANITIZED COPIES OF PREVIOUS DISCIPLINARY
ACTION PROPOSED AND TAKEN AGAINST EMPLOYEES FOR
SIMILAR OFFENSES 25
A. The Particularized need standard 26
B. Authority's analysis of the Union's need in this case 28
C. Agency arguments contesting particularized need lack merit 29
1. The Authority applied the particularized need standard 29
2. The information is necessary to represent an employee in an
oral reply 30
3. There is no requirement that the Union establish a grievable
right for the information sought 31
4. The Union's need for the information is neither remote nor
uncertain 34
CONCLUSION
ADDENDUM
Relevant portions of the Federal Service Labor-Management
Relations Statute, 5 U.S.C. §§ 7101-7135 (1994 &
Supp. II 1996) and other pertinent regulations A-1
TABLE OF AUTHORITIES
AFGE Local 2441 v. FLRA, 864 F.2d 178 (D.C. Cir. 1988) 13
*AFGE, Local 3882 v. FLRA, 865 F.2d 1283
(D.C. Cir. 1989) 20, 32
AFGE, Local 1345 v. FLRA, 793 F.2d 1360
(D.C. Cir. 1986) 22, 23, 31
Bureau of Alcohol, Tobacco and Firearms v. FLRA,
464 U.S. 89 (1983) 13
Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984) 12
DOJ v. FLRA, 39 F.3d 361 (D.C. Cir. 1994) passim
Department of the Air Force, Scott Air Force Base v. FLRA,
104 F.3d 1396 (D.C. Cir. 1997) 31
Department of Veterans Affairs v. FLRA, 3 F.3d 1386
(10th Cir. 1993) 22
EEOC v. FLRA, 744 F.2d 842 (D.C. Cir. 1984),
cert. dismissed, 476 U.S. 19 (1986) 12
Fort Stewart Schs. v. FLRA, 495 U.S. 641 (1990) 12
*NLRB v. FLRA, 952 F.2d 523 (D.C. Cir. 1992) passim
*National Treasury Employees Union v. FLRA,
721 F.2d 1402 (D.C. Cir. 1983) 13, 18
National Treasury Employees Union v. FLRA, 800 F.2d 1165
(D.C. Cir. 1986) 18, 20
Overseas Education Association v. FLRA, 858 F.2d 769
(D.C. Cir. 1988) 12
Peoples Gas System, Inc. v. NLRB, 629 F.2d 35
(D.C. Cir. 1980) 13
DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY
AFGE, National INS Council and U.S. Department of Justice,
INS, Washington, D.C., 45 FLRA 391 (1992), affd sub.
nom., U.S. INS v. FLRA, 4 F.3d 268 (4th Cir. 1993) 24
American Federation of Government Employees, Local 1857,
AFL-CIO, 46 FLRA 904 (1992) 11, 19
Army and Air Force Exchange Service, Fort Carson,
Colorado and AFGE, Local 1345, 17 FLRA 624 (1985) 22, 23
Department of Defense, Office of Dependents Schools,
36 FLRA 871 (1990) 12, 33
Department of Health and Human Services, SSA, Baltimore,
Maryland, 39 FLRA 298 (1991) 33
*Internal Revenue Service, Washington, D.C. and Internal
Revenue Service, Kansas City Service Center, Kansas
City, Missouri, 50 FLRA 661 (1995) passim
National Park Service, National Capital Region, United
States Park Police, 48 FLRA 1151 (1993) 26, 27, 31
National Treasury Employees Union and NTEU,Chapter 121,
16 FLRA 717 (1984) 18
National Treasury Employees Union and the U.S. Customs
Service, 10 FLRA 519 (1982) 17
National Treasury Employees Union and U.S. Department of
Commerce, Patent and Trademark Office, 53 FLRA 539
(1997) 24
U.S. Department of Justice, Bureau of Prisons, Federal
Correctional Institution (Ray Brook, New York) and
AFGE Local 3882, 29 FLRA 584 (1987) 19
U.S. Department of Justice, Immigration and Naturalization
Service, Northern Region, Twin Cities, Minnesota,
51 FLRA 1467 (1996) 1
U.S. Department of Justice, Immigration and Naturalization Service,
Northern Region, Twin Cities, Minnesota, 52 FLRA 1323 (Year) 1
Decisions of the Federal Labor Relations Authority:
U.S. Department of Justice, Immigration and Naturalization
Service, Northern Region, Twin Cities, Minnesota,
46 FLRA 1526 (1993) 3
U.S. Department of the Treasury, Office of the Chief
Counsel, Internal Revenue Service, 41 FLRA 402
(1991) 24
STATUTES
Federal Service Labor-Management Relations Statute,
5 U.S.C. §§ 7101-7135 (1994) 2
5 U.S.C. § 7103(a)(9) 28
5 U.S.C. § 7105(a)(2)(G) 2
5 U.S.C. § 7114 2, 11, 22
5 U.S.C. § 7114(a)(1) 14
5 U.S.C. § 7114(a)(2)(A) 14, 16, 28
5 U.S.C. § 7114(a)(2)(B) 3, 6
5 U.S.C. § 7114(b)(4) 2, 6, 7
5 U.S.C. § 7114(b)(4)(B) passim
5 U.S.C. § 7116(a)(1) 7
5 U.S.C. § 7116(a)(5) 7
5 U.S.C. § 7116(a)(8) 7
5 U.S.C. § 7121(d) 18
5 U.S.C. § 7123 2
5 U.S.C. § 7123(c) 12, 13
5 U.S.C. § 7131(d) 21
5 U.S.C. § 7512 21
5 U.S.C. § 7513 26
5 U.S.C. § 7513(b)(2) 5
5 U.S.C. § 7513(b)(3) 5
5 U.S.C. § 7513(d) 22
5 U.S.C. § 7701 22
5 U.S.C. § 706(2)(A) 12
CODE OF FEDERAL REGULATIONS
5 C.F.R. § 752.203(e) 5
GLOSSARY
AFGE, Local 1857 - National Office of the American
Federation of Government Employees
AFGE, Local 3882 - AFGE, Local 3882 v. FLRA, 865 F.2d 1283,
(D.C. Cir. 1989)
AFGE, Local 1345 - American Federation of Government Employees,
Local 1345 v. FLRA, 793 F.2d 1360 (D.C. Cir. 1986)
Br. - Brief
DoD, ODS - Department of Defense, Office of Dependents
Schools, 36 FLRA 871 (1990)
DOJ v. FLRA - DOJ v. FLRA
IRS, Kansas City - Internal Revenue Service, Washington, D.C. and
Internal Revenue Service, Kansas City Service Center, Kansas City,
Missouri, 50 FLRA 661 (1995)
JA - Joint Appendix
MSPB - Merit Systems Protection Board
National Park - National Park Service, National Capital Service -
Region, United States Park Police, 48 FLRA 1151 (1993)
NLRB V. FLRA - NLRB v. FLRA, 956 F.2d 523 (D.C. Cir. 1992)
NTEU v. FLRA - National Treasury Employees Union v. FLRA,
800 F.2d 1165 (D.C. Cir. 1986)
NTEU, Customs National Treasury Employees Union and the Service - U.S.
Customs Service, 10 FLRA 519 (1982)
Scott AFB - Department of the Air Force, Scott Air Force Base
v. FLRA, 104 F.3d 1396 (D.C. Cir. 1997)
Statute - Federal Service Labor-Management Relations
Statute, 5 U.S.C. §§ 7101-7135
Twin Cities I - U.S. Department of Justice, Immigration and
Naturalization Service, Northern Region, Twin Cities, Minnesota,
46 FLRA 1526 (1993)
Twin Cities II - U.S. Department of Justice, Immigration and
Naturalization Service, Northern Region, Twin Cities, Minnesota,
51 FLRA 1467 (1996)
Twin Cities III - U.S. Department of Justice, Immigration and
Naturalization Service, Northern Region, Twin Cities, Minnesota,
52 FLRA 1323
ULP - Unfair Labor Practice
Union - National Border Patrol, American Federation
of Government Employees, AFL-CIOORAL ARGUMENT SCHEDULED FOR MARCH 12, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 97-1388
_______________________________
U.S. DEPARTMENT OF JUSTICE,
IMMIGRATION AND NATURALIZATION SERVICE,
NORTHERN REGION, TWIN CITIES, MINNESOTA,
Petitioner
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
and
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
BRIEF FOR THE
FEDERAL LABOR RELATIONS AUTHORITY
STATEMENT OF JURISDICTION
The final decisions and orders under review in this case were issued by the
Federal Labor Relations Authority (Authority) in U.S. Department of Justice,
Immigration and Naturalization Service, Northern Region, Twin Cities,
Minnesota, 52 FLRA 1323 (1997) (Twin Cities III), and the earlier case for
which reconsideration was denied, U.S. Department of Justice, Immigration
and Naturalization Service, Northern Region, Twin Cities, Minnesota, 51 FLRA
1467 (1996)(Twin Cities II). The Authority exercised jurisdiction over the
case pursuant to section 7105(a)(2)(G) of the Federal Service Labor-
Management Relations Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. II 1996)
(Statute).[1]
This Court has jurisdiction to review the Authority's decisions and orders
pursuant to section 7123(a) of the Statute. The United States Department of
Justice, Immigration and Naturalization Service, Northern Region, Twin
Cities, Minnesota (Agency) filed a petition for review of Twin Cities II and
Twin Cities III on June 10, 1997, within the time limit provided by 5 U.S.C.
§ 7123.
STATEMENT OF THE ISSUES
1. Whether, when representing an employee in responding to a proposed removal,
an exclusive representative relinquishes the right to request information
pursuant to section 7114(b)(4).
2. Whether, when representing an employee in responding to a proposed removal,
an exclusive representative is entitled to sanitized copies of previous
disciplinary action proposed and taken against other employees for similar
offenses.
STATEMENT OF THE CASE
I. Nature of the Case
This unfair labor practice (ULP) case, arising under section 7114 of the
Statute, is before this Court for the second time. DOJ v. FLRA, 39 F.3d 361
(D.C. Cir. 1994) (DOJ v. FLRA). At issue in this case is the interpretation
and application of section 7114(b)(4) of the Statute.
As pertinent here, in earlier proceedings the Authority found that the
Agency had committed a ULP by refusing to provide information and by
refusing to advise that certain information did not exist. U.S. Department
of Justice, Immigration and Naturalization Service, Northern Region, Twin
Cities, Minnesota, 46 FLRA 1526 (1993)(Twin Cities I, JA 137-202).[2] The
information in question had been requested by National Border Patrol
Council, American Federation of Government Employees, AFL-CIO (Union) in
conjunction with representing a bargaining unit employee in responding to a
proposed removal. JA 139.
The Agency petitioned this Court for review of the Authority's order, and
the Authority filed a cross-petition for enforcement. JA 203-207. On
review, the Court concluded[3] that the Authority had not analyzed the
Union's request in light of the Court's decision in NLRB v. FLRA, 956 F.2d
523 (D.C. Cir. 1992) (NLRB v. FLRA), wherein the Court had provided guidance
concerning its interpretation of section 7114(b)(4)(B) of the Statute. DOJ
v. FLRA, 39 F.2d at 370. Accordingly, the Court remanded the case and
directed the Authority to analyze the Union's information request under the
principles of NLRB v. FLRA. Id.
In response to the Court's remand, the Authority reviewed the Union's
information request under the NLRB v. FLRA standard. As a result of this
analysis, the Authority found that the Union had failed to establish a
particularized need for the overwhelming majority of the information sought,
but concluded that the Union should have been provided one portion of the
information sought. Accordingly, the Authority determined that the Agency
had failed to comply with section 7114(b)(4)(B) of the Statute. (Twin
Cities II, JA 208-227).
The Agency requested that the Authority reconsider its opinion, setting
forth several bases for reconsideration. JA 228-246. The Authority, on
finding no extraordinary circumstances, denied the request for
reconsideration. Twin Cities III, JA 247-262.
On June 10, 1997, DOJ again petitioned this Court for review, this time of
the Authority's decisions and orders in Twin Cities II and Twin Cities III.
JA 264-265.
II. Statement of the Facts
In November 1990, after an Office of Inspector General (OIG) investigation
into allegations of misconduct, the Agency formally notified one of its
employees, Jason Wood, of its intent to remove him from his position as a
Border Patrol Agent. The basis for the Agency's intended action included
allegations that Wood had engaged in theft, falsification, and conduct
unbecoming an officer. JA 209-210.
The Union notified the Agency that it had been designated to act on behalf
of Wood in his pending proposed adverse action and requested certain
information so that it could "properly respond to the allegations set forth
in the notice." JA 49. Specifically, the Union requested: (1) the entire
OIG investigative file; (2) proposed and final decisions involving adverse
and disciplinary actions in the Northern Region of the Immigration and
Naturalization Service from January 1, 1985, to November 1990, for "offenses
similar to those alleged against" Wood; (3) the statutory and regulatory
authority for OIG to investigate the Agency's employees; (4) any agreements
between the Agency and OIG relating to such investigations; and (5)
investigative manuals for the conduct of OIG investigations. JA 49-52.[4]
At a December meeting concerning the Union's information request, the Agency
provided the Union with a portion of the OIG report referenced in the notice
of proposed removal, but offered no other information. During this
meeting, the Union advised that "the disciplinary records had been requested
in order to ensure that Wood received fair and equitable discipline as
compared with other employees who had committed similar offenses." JA 211.
In response to the Agency's expressed concern over the privacy rights of the
employees who had previously faced discipline, the Union agreed to accept
the requested disciplinary information in sanitized form. However, the
Agency subsequently stated that it would not release any further information
in response to the Union's request. Id. The Union assisted Wood in
making an oral reply to the proposed removal. Following the oral reply,
the proposed removal was reduced to a 5-day suspension. The Union filed a
grievance and invoked arbitration over the suspension. JA 140.
The General Counsel of the FLRA filed complaints against the Agency,
alleging[5] that the Agency had violated section 7114(b)(4) of the Statute
by failing to provide the documents requested by the Union in conjunction
with the disciplinary action and by failing to advise the Union that certain
of the information it sought, i.e., agreements between the Agency and OIG
concerning OIG investigations, did not exist. After hearing, the
Administrative Law Judge (Judge) agreed that the Agency had violated the
Statute in this respect and so recommended in his decision. JA 158-202.
III. Litigation of the Union's Request for Documents
A. Twin Cities I
On review of the Judge's recommended decision and the Agency's exceptions,
the Authority agreed that the Union had a clear, articulated need for the
requested information in order to assist and represent Wood in connection
with the proposed removal action. The Authority concluded, as pertinent
here, that the Agency acted improperly both in refusing to provide
information and in failing to inform the Union that certain other
information did not exist. The Authority accordingly found that the Agency
had failed to comply with section 7114(b)(4) of the Statute and had thus
violated section 7116(a)(1), (5), and (8). JA 147-149.
B. DOJ v. FLRA
On consideration of the Agency's petition for review, this Court concluded
that the Authority had failed to frame its analysis in terms of NLRB v.
FLRA. DOJ v. FLRA, 39 F.3d at 370. In NLRB v. FLRA, the Court had
addressed the "necessary" standard set out in section 7114(b)(4) and noted
that a union's need must be evaluated in light of an agency's countervailing
interests in refusing to disclose the information. NLRB v. FLRA, 952 F.2d
at 531. Noting that the Authority's decision did not specifically address
these matters, the Court remanded for the Authority to analyze the union's
request under the rule established in NLRB v. FLRA. DOJ v. FLRA, 39 F.2d at
370. In remanding the case, the Court entrusted the Authority "to decide
whether the parties may supplement the record . . . ." Id.
C. Twin Cities II
On remand, the Authority made two threshold determinations: First, the
Authority noted that in seeking judicial review of the Authority's decision
in Twin Cities I, the Agency had not objected to the Authority's
determination that the Agency had violated the Statute by failing to advise
the Union that certain information sought did not exist. Accordingly, the
Authority determined that it would not address this issue further, except in
connection with its Order and Notice. JA 209, n.2. Second, the Authority
concluded that the record before it was sufficient to render a decision on
the issues without additional supplementation from the parties. JA 212,
n.6.[6]
Next, the Authority noted that subsequent to the Court's remand, the
Authority had set forth its revised approach for dealing with information
requests 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). In IRS, Kansas City, the Authority had directly
addressed the Court's decision in NLRB v. FLRA, requiring that a union
establish a particularized need for information sought "by articulating,
with specificity, why it needs the requested information, including the uses
to which the union will put the information." 50 FLRA at 669. Also in
response to NLRB v. FLRA, the Authority stated in IRS, Kansas City that in
determining whether an agency was justified in refusing to provide
information, the Authority would consider any "countervailing anti-
disclosure interests" that the agency asserted and established. Id., JA
213-214.
In analyzing the Union's request for the information, the Authority
responded to two Agency assertions. First, the Authority disagreed with the
Agency's claim that this information was not necessary in preparing for an
oral reply. Second, the Authority rejected the Agency's argument that the
Union was not acting in the capacity of a union representative and therefore
not entitled to the information requested. JA 218-219.
In applying the NLRB v. FLRA and IRS, Kansas City precedents to the
information requests in this case, the Authority modified its earlier
determination as to what information the Agency was required to turn over to
the union. Specifically, with respect to the sanitized disciplinary and
adverse action records sought, the Authority determined that the Union had
established the requisite particularized need and the Agency had not
proffered any countervailing anti-disclosure interests. JA 220-221. As for
the remaining information sought, the Authority concluded that the Union had
failed to establish the requisite particularized need. JA 221-223. The
Authority thus concluded that the Agency had failed, in a more limited
respect, to comply with section 7114(b)(4)(B) and issued an Order setting
forth an appropriate remedy. JA 223-227.
D. Twin Cities III
The Agency petitioned the Authority for reconsideration of its decision in
Twin Cities II, asserting that there were extraordinary circumstances
compelling such action. JA 228-245. As pertinent to the present
litigation, the Agency alleged that the Authority had erred in finding that
"particularized need" for the documents was established (JA 230-233;
242-244), and in concluding that the Union was acting as the "exclusive
representative" when making the information request in this case. JA
233-236.[7]
After noting that a party seeking reconsideration bears a heavy burden and
that mere disagreement with the Authority's determinations or efforts to
relitigate Authority conclusions are insufficient to establish
"extraordinary circumstances" warranting reconsideration (JA 249), the
Authority concluded that the Agency had failed to meet its burden in this
case. Specifically, the Agency had not established that the Authority erred
in concluding that the Union was acting as the exclusive representative when
assisting the employee in responding to the proposed removal (JA 257-258),
nor had the Agency proved that the Authority erred in concluding that the
Union established particularized need for the sanitized disciplinary
records. JA 250-257.
1. Exclusive representative status
The Authority noted that it had previously considered the Agency's argument
that because a union is not required to represent an employee in responding
to a proposed removal, the union does not act as an exclusive representative
when it undertakes such representation. The Authority acknowledged that its
precedent established that a union is not, as an aspect of its duty of fair
representation, obligated to represent an employee at an oral reply to a
proposed adverse action. American Federation of Government Employees, Local
1857, AFL-CIO, 46 FLRA 904 (1992) (AFGE, Local 1857). However, if a union
undertakes such representation, the Authority declared, the union acts as
the exclusive representative and is entitled to take advantage of its rights
under section 7114 of the Statute. Accordingly, the Authority rejected the
Agency's argument that a union's obligations and rights under section 7114
of the Statute are one and the same. JA 257.
2. Particularized need
As for the particularized need question, the Authority rejected the Agency's
assertion that the Union had failed to establish the requisite
particularized need for the sanitized disciplinary and adverse action
records. Noting that the Union had requested the information in order to
represent an employee in orally responding to a proposed adverse action, the
Authority reiterated its view that the information request related to a
condition of employment and was consistent with the Union's representational
responsibilities under the Statute. Moreover, the Authority cited
established precedent recognizing the importance, in analyzing appropriate
discipline, of the penalty an employer had previously meted out for similar
offenses. JA 255.
The Authority also considered the Agency's assertion that the Union's need
was premised on a potential, future matter because the information could
only be used if a grievance were filed. Rejecting this argument, the
Authority found that this information could be used in representing the
employee in his oral reply to the proposed removal. In reaching this
conclusion, the Authority distinguished an earlier decision, Department of
Defense, Office of Dependents Schools, 36 FLRA 871 (1990) (DoD, ODS),
wherein the Authority had denied, as remote and uncertain, a union's
request for information pertaining to prospective employees. JA 256-257.
STANDARD OF REVIEW
The standard of review of decisions of the Authority is narrow: Authority
action shall be set aside only if "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law[.]" 5 U.S.C. §§ 7123(c)
and 706(2)(A). Overseas Educ. Ass'n v. FLRA, 858 F.2d 769, 771-72 (D.C. Cir.
1988); EEOC v. FLRA, 744 F.2d 842, 847 (D.C. Cir. 1984), cert. dismissed,
476 U.S. 19 (1986). Under this standard, unless it appears from the Statute
or its legislative history that the Authority's construction of its enabling
act is not one that Congress would have sanctioned, the Authority's
construction should be upheld. See Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 844 (1984). See also Fort
Stewart Sch. v. FLRA, 495 U.S. 641 (1990).
Further, factual findings of the Authority that are supported by substantial
evidence on the record as a whole are conclusive. 5 U.S.C. § 7123(c);
National Treasury Employees Union v. FLRA, 721 F.2d 1402, 1405 (D.C. Cir.
1983). The Authority is entitled to have reasonable inferences it draws
from its findings of fact not be displaced, even if the court might have
reached a different view had the matter been before it de novo. See AFGE
Local 2441 v. FLRA, 864 F.2d 178, 184 (D.C. Cir. 1988) (AFGE Local 2441);
see also Peoples Gas Sys., Inc. v. NLRB, 629 F.2d 35, 42 (D.C. Cir. 1980).
Finally, as the Supreme Court has stated, the Authority is entitled to
"considerable deference when it exercises its 'special function of applying
the general provisions of the [Statute] to the complexities' of federal
labor relations." Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S.
89, 97 (1983).
SUMMARY OF THE ARGUMENT
I. When representing an employee in responding to a proposed removal, an
exclusive representative has the right to request information pursuant to
section 7114(b)(4)(B). The Agency mistakenly asserts that an exclusive
representative does not have the right to request information in such
circumstances because precedent has established that the union is not obliged,
as an aspect of its duty of fair representation, to represent employees in
connection with appeals to the Merit Systems Protection Board and because the
union is not entitled, if not representing the employee, to attend the meeting
wherein an employee responds to a proposed removal.
The precedent upon which the Agency relies is distinguishable and does not,
in any event, define or delimit an exclusive representative's right to
request information. Specifically, in the cases cited by the Agency, the
union had either declined or not been asked to represent, whereas here the
employee had requested and the union had undertaken representation. Also,
neither the Authority nor any court has suggested that when representing in
connection with an oral reply to a proposed removal, an exclusive
representative surrenders its statutory right to request information.
It would be both incorrect and illogical to deny an exclusive representative
the right to request information when representing an employee in orally
responding to a proposed removal -- especially at this stage of the
proceedings. It would be incorrect because the employee has not yet been
subjected to any action appealable to the Merit Systems Protection Board.
Even if an agency does impose removal as a punishment, an employee typically
has an option to challenge his separation via a statutory appeal or through
the negotiated grievance procedure. On the other hand, if the agency
imposes punishment that is not otherwise appealable to the Merit Systems
Protection Board, as the Agency did here, then the employee's only method of
challenging the punishment is to pursue a grievance through the negotiated
grievance procedure, which the employee did here. Further, it would be
illogical to deny the Union information when it is representing an employee
against whom removal has been proposed, because this Court has already
determined that a union is entitled information of this type when it is not
representing an employee.
II. When representing an employee in responding to a proposed removal, an
exclusive representative is entitled to sanitized copies of previous
disciplinary action proposed and taken against employees for similar offenses.
On remand with directions to analyze the Union's information request in light of
this Court's NLRB v. FLRA decision, the Authority properly applied precedent in
concluding that the Union had established a particularized need for the
information. In reaching this conclusion, the Authority found that the Union
had explicitly connected its request for the information with the action
contemplated by the Agency; that the Union had agreed to take the information in
sanitized form; that the information directly related to the employee's
conditions of employment; and, that there was a sufficient connection between
the uses to which the information might be put and the Union's representational
responsibilities. The Authority also considered the fact that the Agency had
not offered any countervailing anti-disclosure reasons for not providing the
information to the Union.
The Agency erroneously contends that the Authority applied a "relevance"
test; that information of this type is not necessary to represent an
employee in connection with an oral reply; that the information does not
pertain to a grievance and as such the Union has no right to it; and, that
the Union's need is remote. Each of these arguments misses the mark. The
Authority's analysis and findings clearly reflect application of the
particularized need test and not a relevance standard. Previous
disciplinary action proposed and taken against other employees for similar
offenses is clearly a matter that can be brought out in responding to a
proposed removal. Because the disciplinary data sought is neither
predecisional deliberation nor advice, counsel, guidance, or training
pertaining to a supervisor, the Union need not establish a grievable
complaint covering the information. Finally, because removal had been
proposed and the oral reply scheduled, the Union's need here was both
imminent and definite.
ARGUMENT
I. WHEN REPRESENTING AN EMPLOYEE IN RESPONDING TO A PROPOSED REMOVAL, AN
EXCLUSIVE REPRESENTATIVE HAS THE RIGHT TO REQUEST INFORMATION PURSUANT TO
SECTION 7114(b)(4)
The Agency argues that a union, in effect, forfeits its rights as an
exclusive representative when it undertakes to represent an employee in
orally responding to a proposed removal. In support of this argument, the
Agency relies on precedent of the Authority and this Circuit analyzing and
establishing, on the one hand, the parameters of a union's duty of fair
representation, pursuant to section 7114(a)(1), and, on the other, whether
an exclusive representative, pursuant to section 7114(a)(2)(A), has the
right to be present, when not acting as a representative, during an oral
response to a proposed removal.
Close examination of this precedent demonstrates that it is distinguishable
from the case at bar, and in any event, does not support the theory posited
by the Agency. Moreover, there is neither a statutory nor policy basis for
denying the exclusive representative its legitimate rights at this stage of
the process.
A. Review of previous case law
1. Exclusive representative's duty of fair representation
In National Treasury Employees Union and the U.S. Customs Service, 10 FLRA
519 (1982) (NTEU, Customs Service), the Authority concluded that a union had
failed to meet its statutory obligation of representing the interest of all
unit employees without regard to union membership when it announced and
implemented a policy of furnishing attorneys to represent members, but not
furnishing attorneys to represent non-members. On review, this Court
agreed, finding the Authority's determination "compelled by the plain
language of the Statute." National Treasury Employees Union v. FLRA, 721
F.2d 1402, 1406 (D.C. Cir. 1983).
In National Treasury Employees Union and NTEU, Chapter 121, 16 FLRA 717, 718
(1984), the Authority extended NTEU Customs Service, finding that the union
had similarly breached its duty of fair representation in denying attorney
representation to non-member employees "in removal actions at the Merit
Systems Protection Board," while providing attorney representation to
members under the same circumstances. On review, this court disagreed,
finding that a union had no obligation, incident to its duty of fair
representation, to provide "an attorney to assist in a statutory appeal
action." National Treasury Employees Union v. FLRA, 800 F.2d 1165, 1171
(D.C. Cir. 1986) (NTEU v. FLRA). Recognizing that the duty of fair
representation is co-extensive with the powers the union enjoys as exclusive
representative, the Court pointed out that the statutory appeal procedure is
open to employees not because of "the union's suffrage but as a matter of
right." Id. at 1170. The Court also noted that the employee had pursued
his statutory appeal rights and won. Id.
The Authority subsequently modified and limited its view of the scope of the
duty of fair representation to clarify that the union's duty in this regard
did not encompass the obligation to represent an employee during the
proposal stage of a disciplinary proceeding. AFGE, Local 1857, 46 FLRA at
913.
2. Exclusive representative's right to be present at an oral reply to a
proposed adverse action
In U.S. Department of Justice, Bureau of Prisons, Federal Correctional
Institution (Ray Brook, New York) and AFGE Local 3882, 29 FLRA 584 (1987) a
bargaining unit employee, having received notice of a proposed 30-day
suspension, obtained legal counsel to represent him in presenting an oral
reply to the proposed adverse action. The exclusive representative, who was
not provided an opportunity to attend the meeting, alleged that the agency
had violated the union's section 7114(a)(2)(A) right to be present at a
formal discussion between representatives of the agency and employees in the
unit concerning any grievance, personnel policy, or other general condition
of employment. The Authority disagreed, noting that the reason for
affording the union the opportunity to attend formal discussions is to
safeguard the union's interests as well as the interests of other employees
in the bargaining unit; in this case it was not apparent how the interests
of the unit would have been furthered by the union's presence at the
meeting. Id. at 591-92. Moreover, the Authority reasoned "while [the
employee] could have chosen the union to represent him, he chose an attorney
instead." Id. at 592. On judicial review, this Court agreed with the
Authority, emphasizing that the employee had requested neither the union's
representation nor its presence at the meeting. AFGE, Local 3882 v. FLRA,
865 F.2d 1283, 1288 (D.C. Cir. 1989) (AFGE, Local 3882).
B. Precedent establishing the scope of the duty of fair representation
and the right to be present at an oral reply is distinguishable and does
not define the Union's role
The precedent upon which the Agency relies, establishing the scope of the
duty of fair representation and the circumstances under which a union is
entitled to be present as a matter of right at an oral reply, is
distinguishable from the case presently before the Court and does not define
the Union's role when it undertakes representation in these circumstances.
In the duty of fair representation cases cited by the Agency (NTEU v. FLRA;
AFGE, Local 1857) (Agency Br. p. 14), this Court and the Authority concluded
that a union is not obliged to represent an employee in conjunction with a
statutory appeal. Here, on the contrary, the exclusive representative
desired to represent the employee in responding to a proposed removal
action.
In the formal discussion cases relied on by the Agency (AFGE, Local 3882)
(Agency Br. p. 14), the employee had obtained private counsel and, notably,
did not request the union to represent him at the oral reply. In this case,
the employee sought and the Union agreed on representation at the oral
reply.
None of the precedent upon which the Agency relies addresses a situation
where the union has undertaken representation at the oral reply stage. As
such, there is no support for the Agency's bald assertion that in such a
circumstance the exclusive representative is converted into the "employee's
personal representative." Agency Br. p. 18.
C. Precedent establishing the scope of the duty of fair representation and
the right to be present at an oral reply does not address or delimit
information rights
Neither the Authority nor any court has ever suggested, much less held, that
an exclusive representative is precluded from requesting information in
conjunction with representation at the oral reply stage of a proposed
disciplinary action. Contrary to the arguments of the Agency, there is no
statutory or policy based rationale for denying an exclusive representative
its legitimate rights and prerogatives once it undertakes to represent an
employee in an oral reply.
1. At this stage in the proceedings, the prospect of a statutory appeal
is not dispositive of the Union's right to information
It is important to bear in mind that at the time the Union sought
information in connection with representation at the oral reply, the
employee had not been subjected to an appealable action (e.g., a removal or
suspension in excess of 14 days), pursuant to 5 U.S.C. § 7512. As such, at
this stage in the proceedings, it is inappropriate to deny the Union its
information rights on the supposition that the Agency might take an action
that would be appealable to the Merit Systems Protection Board (MSPB).
Moreover, and as the Authority noted (JA 218), even if the Agency takes an
appealable action, the employee would have an option either to file an
appeal with the MSPB, pursuant to 5 U.S.C. §§ 7513(d) and 7701, or to raise
this matter under the negotiated grievance procedure, pursuant to section 5
U.S.C. § 7121(d), unless adverse actions had been excluded from the scope of
the negotiated grievance procedure. Accordingly, the Union has a legitimate
representational interest in obtaining information that will assist it in
representing an employee at the oral reply stage because if an appealable
action is taken, the employee may exercise his right to grieve the action
taken.
Finally, if the Agency takes action that is not otherwise appealable to the
MSPB (e.g., suspension of 14 days or less) -- as the Agency did in this
case, the employee's only recourse is to pursue the matter through the
negotiated grievance procedure -- which the employee did in this case.
For this reason, the Union has a significant interest in obtaining
information that will assist it in representing the employee at the oral
reply, because the oral reply will have an impact on matters that can only
be grieved.
2. A union could have obtained information of this type even if it were
not representing the employee
In AFGE, Local 1345 v. FLRA, 793 F.2d 1360 (D.C. Cir. 1986) (AFGE, Local
1345), this Court considered a case where an agency had refused to furnish
an exclusive representative disciplinary information concerning bargaining
unit employees who had been discharged. The Authority had concluded that
the union was properly denied access to this information because the union
had not represented these employees in connection with their discharge.
Army and Air Force Exchange Service, Fort Carson, Colorado and AFGE, Local
1345, 17 FLRA 624, 629 (1985). The Court reversed the Authority, finding it
patently obvious that the information was "'necessary' for a Union to
fulfill its obligations as the employees' exclusive bargaining agent." 793
F.2d at 1363. Noting that an information request must be evaluated in light
of a union's responsibilities in "both the negotiation and administration of
a labor agreement," the Court pointed out that an exclusive representative
is legitimately concerned about potentially aggrieved employees, other
members of the bargaining unit, and the union's own status as the exclusive
bargaining representative. Id. at 1364.
The Agency here attempts to distinguish AFGE, Local 1345 by arguing that in
this case the Union stated that it needed the information in order to
respond to the allegations of misconduct against the employee. Agency Br.
pp. 18-19. This argument ignores two important points: First, this court's
admonition, taken into account by the Authority in this case (JA 219), that
information requests "must be evaluated in the context of the full range of
union responsibilities." AFGE, Local 1345, 793 F.2d at 1364. Second, the
anomaly of permitting a union to obtain information when it is not
representing an employee, but denying a union the right to information for
the purpose of representing an employee.
3. The existence of a statutory appeal is not otherwise a bar to the
Union's exercise of its rights as an exclusive representative
In related contexts, the Authority has consistently recognized the right of
union representatives to participate in statutory appeals procedures,
despite the fact that they have no obligation to do so. For example, the
Authority has rejected the contention that employees acting on behalf of a
union do not have a right, on request, to represent unit employees in a
statutory appeals process. U.S. Department of the Treasury, Office of the
Chief Counsel, Internal Revenue Service, 41 FLRA 402, 413 (1991). In a
negotiability context, the Authority has recognized that an agency is
required to bargain over the content of the notice in an adverse action.
National Treasury Employees Union and U.S. Dep't of Commerce, Patent and
Trademark Office, 53 FLRA 539, 559-564 (1997). Moreover, the Authority has
concluded that an agency has a duty to bargain over the use of official time
for union officials, pursuant to section 7131(d) of the Statute, to
represent employees in connection with statutory appeals procedures. AFGE,
National INS Council and U.S. Department of Justice, INS, Washington, D.C.,
45 FLRA 391, 400 (1992), aff'd sub. nom., U.S. INS v. FLRA, 4 F.3d 268, 273
(4th Cir. 1993).
These determinations also serve as a basis for rejecting the Agency's
argument that the rights and privileges granted to union representatives in
statutory appeals should be limited to those afforded personal
representatives. Agency Br. pp. 18-19. For example, if a union official
represents an employee in a statutory appeal while on official time pursuant
to section 7131 of the Statute, this offers the union-represented employee
an advantage over the more costly representation of a private attorney.
In the Agency's view, a union's obligations, as a result of its duty of fair
representation, and its rights, as an exclusive representative, are one and
the same. Agency Br. p. 18. This argument was directly rejected by the
Authority: "[T]hat a union lawfully could refuse representation does not
mean that, if the union undertakes representation, the union is not acting
as the exclusive representative and, as such, may not avail itself of its
rights under the Statute." JA 219. As the United States Court of Appeals
for the Tenth Circuit has held in a related context: "We are not persuaded
that a union's rights under § 7114 for the benefit of all its members are
limited by the bounds of its duty of fair representation to an individual in
the statutory appeal process." Department of Veterans Affairs v. FLRA, 3
F.3d 1386, 1390 n.4 (10th Cir. 1993).
II. WHEN REPRESENTING AN EMPLOYEE IN RESPONDING TO A PROPOSED REMOVAL, AN
EXCLUSIVE REPRESENTATIVE IS ENTITLED TO SANITIZED COPIES OF PREVIOUS
DISCIPLINARY ACTION PROPOSED AND TAKEN AGAINST EMPLOYEES FOR SIMILAR OFFENSES
Following this Court's remand, the Authority applied an analysis consistent
with Authority precedent adopting this Court's decision in NLRB v. FLRA. In
so doing, the Authority properly concluded that the Agency violated the
Statute by refusing to provide the Union with sanitized copies of
disciplinary and adverse action information involving employees who had
committed similar offenses. The Authority's action in this regard is
consistent with this Court's remand and worthy of affirmance. Agency
arguments, contesting the Union's particularized need for the information,
are not well taken.
A. The particularized need standard
In NLRB v. FLRA, this Court determined that pursuant to section 7114(b)(4)
(B), unions are entitled to information that is "necessary" -- not merely
relevant -- to subjects within the scope of collective bargaining. 952 F.2d
at 531. Unions can obtain disclosure of such information if they can
demonstrate a particularized need and no countervailing anti-disclosure
interests outweigh the union's need. Id. at 531-32. The Court went on to
note that in certain circumstances, where a union seeks predecisional
deliberative information such as guidance, counsel, advice, or training for
management officials, a union could "meet the particularized need standard
where the union has a grievable complaint covering the information." Id. at
532. "[W]here the union has no grievable complaint covering information on
'guidance,' 'advice,' 'counsel,' or 'training,' § 7114(b)(4)(B) normally
will not require disclosure." Id. at 533.
On remand from NLRB v. FLRA, the Authority agreed that a union must
establish a particularized need as defined by the Court when seeking
information that can be characterized as intramanagement guidance. National
Park Service, National Capital Region, United States Park Police, 48 FLRA
1151 (1993) (National Park Service). On concluding that the union had a
grievable complaint concerning information that had presumptive anti-
disclosure interests, the Authority found the union was entitled to the
intramanagment information. Id. at 1161-62.
In IRS, Kansas City, after determining that the purposes of the Statute
would not be served by establishing different approaches based on the type
of information requested, the Authority adopted a particularized need
standard for all information requests regardless of the type of information
sought. 50 FLRA at 668-69. However, despite adopting a particularized need
standard for all information requests, the Authority retained certain
distinctions based upon the type of information sought. Specifically,
although "an agency has presumptive anti-disclosure interests in
intramanagement guidance documents," this presumption does not extend to
other types of documents where the agency "must assert and establish any
countervailing anti-disclosure interests." 50 FLRA at 670. Additionally,
where the union seeks predecisional and intramanagement information, it must
demonstrate, for example, either a grievable complaint covering the
information or show that the information creates a grievable action.
National Park Service, 48 FLRA at 1161-62; NLRB v. FLRA, 952 F.2d at 532-33.
Neither the Authority nor the courts have required such a showing when the
union seeks information that cannot be characterized as intramanagement.
B. Authority's analysis of the Union's need in this case
Applying its IRS, Kansas City precedent, the Authority properly concluded
that the Union demonstrated a particularized need for sanitized copies of
disciplinary action taken against other employees for similar offenses. In
requesting the records, the Union "explicitly connected the request with the
adverse action the Respondent proposed to take against Wood by stating that
the requested information was needed to 'properly respond to the
allegations' set forth in the notice." JA 214 citing 46 FLRA at 1556. At a
meeting with the Agency two weeks later, the Union clarified for the Agency
that "it needed the records in order to compare the discipline the
Respondent had proposed for Wood with that given to other employees who had
committed similar offenses." JA 214-215. Also at that meeting, the Union
agreed to accept a sanitized version of the records, because "all [the
Union] needed to know was that the disciplinary action was proposed and what
the outcome of it was." JA 215, citing Transcript at 141. The Authority
thus concluded that the information sought directly related to an employee's
conditions of employment and that the Union had satisfactorily explained
both the uses to which the information might be put and the connection
between those uses and the Union's representational responsibilities. JA
214, 219.
As for countervailing anti-disclosure interests that might overcome the
Union's particularized need, the Authority noted that the Agency had never
asserted any. JA 220. Indeed, and as the Authority noted, "[i]n view of
the Union's expressed willingness to accept, and the Judge's Order to
provide, this information in sanitized form, it is difficult to envision
what countervailing interests the [Agency] would be able to reasonably
posit." JA 220 n.11.
C. Agency arguments contesting particularized need lack merit
The Agency makes several arguments challenging the Authority's determination
that the Union established a particularized need for the information in this
case. On close examination, none of them has merit.
1. The Authority applied the particularized need standard
The Agency asserts that the Authority failed to follow this Court's NLRB v.
FLRA decision because it applied a "relevance" standard in this case.
Agency Br. pp. 10-11. In support of this assertion, the Agency points to a
reference in Twin Cities II wherein the Authority noted that the Agency had
failed to establish that the information "would not also be relevant in an
oral reply." JA 219. Contrary to the Agency's assertion, the Authority
clearly followed and applied the particularized need standard set out in
NLRB v. FLRA and IRS, Kansas City. JA 213-218. The "relevance" reference
to which the Agency adverts was only utilized by the Authority in rejecting
the Agency's assertion that the information sought could not be used in
representing Wood in his oral reply. Before rejecting the Agency's argument
and using the term "relevant," the Authority had already concluded,
following NLRB v. FLRA and IRS, Kansas City, "that the Union had satisfied
its burden to articulate and establish a particularized need for the
requested disciplinary and adverse action letters." JA 217. This was
clearly explained to the Agency when the Authority rejected the Agency's
Reconsideration Request. JA 255.
2. The information is necessary to represent an employee in an oral
reply
While conceding that the sanitized disciplinary and adverse action
information would be necessary at some later time, the Agency maintains that
the information is not necessary at this stage of the proceedings for the
purpose of responding to an oral reply. Agency Br. pp. 11-12. The
Authority rejected this argument, reasoning that 5 U.S.C. § 7513 permits an
employee to submit "affidavits and other documentary evidence" in support of
an oral reply to a proposed adverse action. JA 219-220. The Authority also
pointed out that in evaluating agency punishment, the MSPB "has consistently
recognized the importance of how an employer has treated other employees who
committed similar offenses. [citations omitted]." JA 255. In short, the
Authority rejected the Agency's rather ostrich-like argument that the Union
may not present any evidence that the proposed punishment is inappropriate
or disparate until after the Agency has finally imposed punishment.
3. There is no requirement that the Union establish a grievable right
for the information sought
The Agency asserts that because a proposal to take an adverse action cannot
be grieved, the Union is not entitled to the information. In support of
this position, the Agency points to this Court's decisions in Department of
the Air Force, Scott Air Force Base v. FLRA, 104 F.3d 1396 (D.C. Cir. 1997)
(Scott AFB) and AFGE, Local 3882. Agency Br. pp. 13-15. Examination of
these cases reveals that neither supports the Agency's assertion.
It is true that in Scott AFB, the Court held that the union's right to a
disciplinary letter involving a supervisor turned on whether the union's
claim was "tied to a matter that was grievable under the parties' collective
bargaining agreement." 104 F.2d at 1398. However, in Scott AFB, the
information sought was "predecisional deliberation" wherein the union was
obliged, pursuant to NLRB v. FLRA and National Park Service, to establish "a
grievable complaint covering the information." 104 F.2d at 1400. Here, the
Union seeks sanitized records of disciplinary action proposed and taken
against employees. There has been no assertion by the Agency that this is
intramanagement information for which there are presumptive anti-disclosure
interests. In light of this Court's decision in AFGE, Local 1345, finding
similar information patently necessary, such an assertion would be rejected
in any event. Accordingly, the Union here had no obligation to either
demonstrate a grievable complaint covering the information or show that the
information created a grievable action. National Park Service, 48 FLRA at
1161-62; NLRB v. FLRA, 952 F.2d at 532-33. Given the distinction between
the type of information sought in Scott AFB and the information sought here,
the Agency's reliance on Scott AFB is misplaced.
As for AFGE, Local 3882, as noted earlier, both the Authority and this Court
determined that an exclusive representative had no right to attend an oral
reply where the bargaining unit employee had retained legal counsel to
represent him. In reaching this conclusion both the Authority and the Court
concluded that "the meeting did not involve a matter covered by section
7114(a)(2)(A)." 865 F.2d at 1288. The Agency here asserts that because
such meetings do not concern a "grievance," pursuant to sections 7114(a)(2)
(A) and 7103(a)(9), the Union is not entitled to the information. The
agency's arguments fail in three respects: First, as noted in the preceding
paragraph, there is no requirement that the Union establish the existence of
a grievance as a precondition to obtaining the information sought in this
case. Second, the statutory test for information requests is set out in
section 7114(b)(4)(B) ("necessary for full and proper discussion,
understanding, and negotiation of subjects within the scope of collective
bargaining") -- not in section 7114(a)(2)(A), which explains an exclusive
representative's right to be present at formal discussions, nor section
7103(a)(9), which defines a grievance. Third, "[t]here is no requirement
that information requested under section 7114(b)(4)(B) of the Statute
actually be used in a grievance." Department of Health and Human Services,
SSA, Baltimore, Maryland, 39 FLRA 298, 309 (1991).
4. The Union's need for the information is neither remote nor uncertain
Finally, the Agency cites the Authority's DoD, ODS decision for the
proposition that a union may not obtain information for which it has only a
remote need. Agency Br. p. 16. In the Agency's view, the Union will not
have a need for this information until some future time, presumably after
the employee has been disciplined.
In DoD, ODS, the Authority denied a union's request for information
concerning prospective employees, reasoning that the union's need for the
information was "both remote and uncertain." 36 FLRA at 874. As the
Authority noted in denying the Agency's Request for Reconsideration, that
case does nothing to diminish the Union's need in this situation. JA 256.
Here, the employee had already been given a notice of proposed removal, an
oral reply had been scheduled, and the Union requesting the information had
been designated as the employee's representative. Thus, the Union's need
was both imminent and definite and the Agency's claim fails.
CONCLUSION
DOJ's petition for review should be denied and the Authority's decision
should be enforced.
Respectfully submitted.
DAVID M. SMITH
Solicitor
SHARI POLUR
Attorney
Federal Labor Relations Authority
607 14th St., N.W.
Washington, D.C. 20424
(202) 482-6620
DATE: December 1997
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_______________________________
U.S. DEPARTMENT OF JUSTICE, IMMIGRATION
AND NATURALIZATION SERVICE, NORTHERN
REGION, TWIN CITIES, MINNESOTA,
Petitioner
v. No. 97-1388
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
and
NATIONAL BORDER PATROL COUNCIL,
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES )
_______________________________
CERTIFICATE OF SERVICE
I certify that copies of the Brief of The Federal Labor Relations
Authority have been served this day, by mail, upon the following:
William Kanter, Esq. Mark D. Roth, Esq.
Howard S. Scher, Esq. General Counsel
Attorneys, Appellate Staff American Federation of
Civil Division, Room 7415 Government Employees
Department of Justice 80 F Street, N.W.
950 Pennsylvania Ave., N.W. Washington, D.C. 20001
Washington, D.C. 20530-0001
Janet Smith
Paralegal Specialist
December 23, 1997
I certify that the Brief of the Federal Labor Relations Authority does not
exceed 12,500 words, the maximum amount allowed under Circuit Rule 28(d).
________________________________
David M. Smith
Solicitor
December 23, 1997
[1] Pertinent statutory provisions are set forth in Addendum A to this
brief.
[2] "JA" references are to the Joint Appendix filed with the Agency's
brief.
[3] The Court also found that personnel in the Department of Justice's
Office of Inspector General Office were not representatives of the agency for
the purposes of 5 U.S.C. § 7114(a)(2)(B).
[4] An employee whose removal has been proposed is entitled, inter alia,
to "answer [the charges] orally and in writing and to furnish affidavits and
other documentary evidence in support of the answer" and "be represented by an
attorney or other representative." 5 U.S.C. § 7513(b)(2) and (3). In reaching
its decision on the proposed removal, an agency "shall consider any answer of
the employee and/or his or her designated representative." 5 C.F.R. §
752.203(e).
[5] Those aspects of the case concerning the alleged violation of section
7114(a)(2)(B) are not presently before the Court and will not be addressed
further herein.
[6] Although the Agency challenged both of these determinations in its
Request for Reconsideration, it has not pursued either of these issues in the
case presently before the Court. Accordingly, these Authority determinations
will not be addressed further herein.
[7] In its Request for Reconsideration, it was also asserted that the
"issue is somewhat moot" because, inter alia, the Agency had destroyed the
documentation which it had been ordered to turn over, and thus compliance with
the Authority's order would be impossible. JA 240. In response, the Authority
pointed out that the Agency's claims did not moot the complaint and expressed
indignation that the Agency would disregard its obligations under the Statute.
Because of the unsubstantiated nature of the Agency's assertion, the Authority
concluded that compliance with its Order would be dealt with, in the first
instance, by the General Counsel. JA 260-261. The Agency has not raised this
matter to the Court, and it will not be further referenced herein.