Standard for Determining Whether Certain Information Is ``Necessary,'' Within the Meaning of Section 7114(b)(4)(B) of the Federal Service Labor-Management Relations Statute

FEDERAL LABOR RELATIONS AUTHORITY

Standard for Determining Whether Certain Information Is

``Necessary,'' Within the Meaning of Section 7114(b)(4)(B) of the

Federal Service Labor-Management Relations Statute

AGENCY: Federal Labor Relations Authority.

ACTION: Notice of the opportunity to file briefs as amici curiae in

certain unfair labor practice proceedings in which agencies have

refused to provide information requested by labor organizations under

section 7114(b)(4) of the Federal Service Labor-Management Relations

Statute (5 U.S.C. 7114(b)(4)).

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SUMMARY: The Federal Labor Relations Authority provides an opportunity

for all interested persons to file briefs as amici curiae on a

significant issue common to a number of cases pending before the

Authority involving the refusals of agencies to provide labor

organizations with information requested under section 7114(b)(4)(B) of

the Statute.

DATES: Briefs submitted in response to this notice will be considered

if filed by January 6, 1995. The date of filing shall be determined by

the date of mailing as indicated by the postmark date. If no postmark

date is evident on the mailing, it shall be presumed to have been

mailed 5 days prior to receipt. If filing is by personal delivery, it

shall be considered filed on the date it is received by the Authority.

ADDRESSES: All briefs shall be captioned ``Necessary Information,

Amicus Brief,'' and shall contain separate, numbered headings for each

issue discussed. An original and four (4) copies of each amicus brief,

with any enclosures, on 8\1/2\ x 11 inch size paper, shall be addressed

to Alicia Columna, Director, Case Control Office , FLRA, Attn:

Necessary Information Cases, 607 14th Street NW., Room 415, Washington,

DC 20424-0001.

FOR FURTHER INFORMATION CONTACT: Alicia Columna, Director, Case Control

Office, Federal Labor Relations Authority, (202) 482-6540.

SUPPLEMENTARY INFORMATION: The Federal Labor Relations Authority has

pending before it cases where agencies have refused to provide labor

organizations with information requested under section 7114(b)(4) of

the Statute because the agencies allege, inter alia, that the requested

information is not ``necessary for full and proper discussion,

understanding, and negotiation of subjects within the scope of

collective bargaining[.]'' 5 U.S.C. 7114(b)(4)(B). In National Park

Service, National Capital Region, United States Park Police, 48 FLRA

1151 (1993) (National Park Service) (Member Talkin concurring in part

and dissenting in part), the Authority adopted the standard set forth

in National Labor Relations Board v. FLRA, 952 F.2d 523 (D.C. Cir.

1992) (NLRB v. FLRA), for determining when requested information

involving advice, guidance, counsel or training provided for management

officials is ``necessary,'' within the meaning of section

1714(b)(4)(B). The Authority is now considering application of the

National Park Service standard to pending cases, including whether a

different standard should be applied to requests for other types of

information.

In this context, parties in the following pending cases have been

directed to file statements with the Authority addressing certain

questions. The cases, and the types of information at issue therein,

are:

Department of Health and Human Services, Social Security

Administration, Ventura District Office, Case No. 8-CA-20443; where the

union requested supervisors' ``memory joggers.''

United States Immigration and Naturalization Service, United States

Border Patrol, Case No. 6-CA-10866; where the union requested memoranda

written by employees requesting assignments to certain work units.

Social Security Administration, Dallas Region, Case No. 6-CA-10825;

where the union requested ``memory joggers'' pertaining to a certain

bargaining unit employee who was challenging an appraisal rating.

United States Department of the Treasury, Internal Revenue Service,

Case No. 7-CA-0658; where the union requested a performance appraisal

of an employee who was appraised under a performance plan identical to

that of a unit employee who was dissatisfied with her appraisal rating.

Federal Bureau of Prisons, Allenwood Federal Prison Camp,

Montgomery, Pennsylvania, 12-CA-20160; where the union requested a

crediting plan for a first-line supervisory position for which a

bargaining unit employee was not selected.

Parties in the aforementioned cases were directed to provide briefs

addressing the following questions:

1. Do the requested documents constitute guidance, advice, counsel

or training provided for management officials or do they fall within

some other category? Why do you so characterize them?

2. If the requested documents do not constitute guidance, advice,

counsel or training provided for management officials, should the

standard set forth in National Park Service be applied to such

documents, in light of NLRB v. FLRA; Department of the Air Force, Scott

Air Force Base v. FLRA, 956 F.2d 1223 (D.C. Cir. 1992); U.S. Department

of Justice, Bureau of Prisons, Allenwood Federal Prison Camp,

Montgomery, Pennsylvania v. FLRA, 988 F.2d 1267 (D.C. Cir. 1993);

Department of Veterans Affairs, Washington, D.C. v. FLRA, 1 F.3d 19

(D.C. Cir. 1993); Department of Justice, United States Immigration and

Naturalization Service, United States Border Patrol, El Paso, TX v.

FLRA, 991 F.2d 285 (5th Cir. 1993); and United States Department of

Justice, Immigration and Naturalization Service, Northern Region, Twin

Cities, Minnesota; Office of Inspector General, Washington, D.C.; and

Office of Professional Responsibility, Washington, D.C. v. FLRA, No.

93-1284 (D.C. Cir. Nov. 4, 1994), slip op. at 16-17? If not, why not,

and what standard should be applied?

3. What showing of need for the requested information has the Union

established?

4. What interest has the Agency established for not disclosing the

requested information?

Although these questions were asked of the parties in the above-

referenced cases, the matters addressed in the questions posed are

likely to be of concern to the Federal sector labor-management

relations community in general. With respect to questions 3 and 4, the

matters of broader concern would be the showings of need (question 3)

and interest (question 4) the union and respondent, respectively, would

be required to establish under whatever standard is advanced as

appropriate for application. Therefore, the Authority finds it

appropriate to provide for the filing of briefs as amici curiae

addressing any or all of these matters.

Dated: December 7, 1994.

For the Authority.

Alicia N. Columna,

Director, Case Control Office.

[FR Doc. 94-30494 Filed 12-9-94; 8:45 am]

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