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ABA SECTION OF LABOR AND EMPLOYMENT LAW

5TH ANNUAL CLE CONFERENCE, SEATILE, WA

Panel Discussion on FEDERAL SECTOR ARBITRATION

Saturday, November 5, 2011

Select materials on:

The Relevance and Use in Arbitration of Information Requests

Under Section 7114(b)(4) of the Federal Service Labor­

Management Relations Statute

1. Excerpts from FLRA Office of the General Counsel Unfair

Labor Practice Case Law Outline (May 2011)

2. u. S. Dep't of Justice, Federal Bureau of Prisons, Fc/ Fort

Dix, NJ (2009)

Barbara Kraft, Regional Director Washington Regional Office

Federal Labor Relations Authority Washington, DC bkraft@flra.gov

SEP-09-2011 17:12 FLRA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF THE GENERAL COUNSEL

UNFAIR LABOR PRACTICE

CASE LAW OUTLINE

JULIA AKINS CLARK

GENERAL COUNSEL

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(1991); see also U.S. DOJ, INS, N. Y. Office of Asylum, Rosedale, 1038 (1999). An agency bypasses the union when it delivers t nit employee a decision letter on a disciplinary action when the union was wn to be representing the employee in the matter. McGuire AFB, 28 FLRA 111 87); Dep't of the Air Force, Sacramento Air Logistics Ctr., McClellan Air Forc se, Cal., 35 FLRA 345 (1988).

A questionnaire or poll that only elicits fa rom employees has been found not to be an unlawful bypass. Dep'tofHHS, , 19 FLRA415, 416-17 (1985). However, a questionnaire/poll where unit e ee opinions and views were solicited on existing or soon to be made changes een found to be a bypass of the union. Dep't of Treasury, Bureau of AI 0/, Tobacco & Firearms, Wash. D.C., 16 FLRA 528, 543

may directly solicit information from employees about its operations, s g as it does not attempt to use a poll or survey to bargain directly with them abo atters subject to bargaining with the union. Dep't of Treasury, IRS, Wash.,

LRA83 ,838(1988).

7. THE DUTY TO FURNISH INFORMATION

What part of the Statute discusses a union's request for information?

Section 7114(b) (4) of the Statute discusses when an agency must give information to a union. It states:

The duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation--

in the case of an agency, to furnish to the exclusive representative involved, or its authorized representative, upon request and, to the extent not prohibited by law, data--

(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 negotiation of subjects within the scope of collective bargaining; and

(C) which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining.

What does "normally maintained" mean?

• Information is "normally maintained" if an agency has and maintains the information. See Dep't of HHS, SSA, Bait., Md., 37 FLRA 1277, 1285 (1990).

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When is information "reasonably available?"

Definition: Information is "reasonably available" when it is not extremely hard for the agency to get the information. See Department of Health and Human Services, SSA, 36 FLRA 943,950 (1990) (SSA), where the Authority discusses what is meant by "reasonably available."

• Examples: Information may be reasonably available even when the agency has to spend time and money to get the information. For example, the Authority has said information was reasonably available when:

» It would take management 3 weeks to put the information together: SSA, 36 FLRA at 952, 960

» The agency had to give the union 1 0,000 documents: Dep't of Justice, U.S. Immigration & Naturalization Serv., U.S. Border Patrol EI Paso, Tex., 40 FLRA 792, 804-05 (1991)

» The agency had to spend $1500 getting the information: U. S. Dept of Air Force, Air Force Logistic Ctr., Sacramento Air Logistics Command, McClellan AFB, Cal., 37 FLRA 987,993-94 (1990)

• Creating documents: Agencies may have to create documents that do not exist if they have the information the union is asking for in an electronic format. For examples, see the following cases:

» Department of the Navy, Naval Submarine Base, New London, Conn., 27 FLRA 785,797 (1987)

» U. S. Dep't of the Air Force, Air Force Logistics Command, Sacramento Air Logistics Cfr., McClellan AFB, Cal., 37 FLRA 987,993 (1990)

When is information "necessary?"

• What a union must explain to show information is necessary: A union must explain: (1) why it needs the information; (2) how it will use the information; and (3) how its use of the information relates to its responsibilities under the Statute. The Authority calls this a "particularized need." See IRS, Wash., D.C. & IRS, Kansas City Servo Cfr., Kansas City, Mo., 50 FLRA 661,669 (1995) (IRS, Kansas City).

» A union's request must be specific > It is not enough for a union to show that information would be useful; the

union must show the information is required in order for it to represent the bargaining unit

> A union must put enough information in its request so the agency can decide whether it is required to provide the information

• Scope of the union's request: A union must identify what information it is requesting and explain why it needs that type or amount of information. See

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US. Dep't of Justice, INS, N. Region, Twin Cities, Minn., 51 FLRA 1467, 1472 (1996); US. Dep't of Justice, INS, N. Region, Twin Cities, Minn., 52 FLRA 1323, 1330 (1997) (Twin Cities); U.S. BorderPatrol, Tucson Sector, Tucson, Ariz., 52 FLRA 1231,1239 (1997). For example, the scope of a request may include:

» the number of days, weeks, months, or years of information the union needs

);> the types or groups of employees for which the union needs information

• Union's responsibility to represent employees: Agencies have a duty to give the union information that would be relevant to any or all of the union's responsibilities under the Statute. See Dep't of HHS, SSA, 36 FLRA 943,947 (1990). For example, a union may request information that is necessary for it to:

}> Administer and oversee the parties' agreements: FAA, 55 FLRA 254, 260 (1999); Dep't of Justice, Immigration & Naturalization Serv., N. Region, Twin Cities, Minnesota v. FLRA, 144 F.3d 90, 93 (D.C. Cir. 1998)

» Decide whether or not to file a grievance or to process a grievance it has filed: NLRB v. FLRA, 952 F.2d 523,526 (D.C. CiL 1992)

• Limits of the "necessary" requirement: » When explaining its need for information, a union does not have to

describe exactly how the agency violated a policy, procedure, law, or regulation. See Health Care Fin. Admin., 56 FLRA 156, 162 (2000) (HCFA).

);> If a union has shown that the information is necessary, the agency must provide the information, even if it does not believe the union's theory or argument is right. For example, if a union files a grievance because it believes the agency did not appraise an employee correctly, an agency should not deny the union's request for a copy of the appraisal on the basis that it will show the appraisal was proper. See IRS, Kansas City, 50 FLRA at 673.

• Agency's interest in NOT providinq information: If an agency has a reason that it does not want to provide the information, the agency must explain this to the union.

» Authority cases call the agency's reason for not providing the information a "countervailing anti-disclosure interest." See HCFA, 56 FLRA at 159.

» An agency must raise its anti-disclosure interests when the union requests the information. See US. Dep't of Justice, Fed. Bureau of Prisons, Fed. Det. Ctr., Houston, Tex., 60 FLRA 91,93 (2004) (FBP Houston); US. Dep't of the Army, Army Corps of Eng'rs, Portland Dist., Portland, Ore., 60 FLRA 413,416 (2004) (Portland District). An agency cannot raise its interests for the first time at an unfair labor practice hearing. See FAA, 55 FLRA 254, 260 (1999) (FAA).

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• When an agency violates the Statute: An agency's refusal to give the union requested information violates the Statute when the union has shown that the information is necessary and either:

» The agency has not established an anti-disclosure interest; or » The agency has established an anti-disclosure interest but it does not

outweigh the union's need for the information. See IRS, Kansas City, 50 FLRA at 671; see also SSA, 64 FLRA 293, 303 (2009); Library of Cong., 63 FLRA 515,519 (2009).

What is "guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining?"

• Section 7114(b)(4)(C) states that an agency doesn't have to give information that contains guidance, advice, counsel, or training for management officials related specifically to the collective bargaining process. This includes:

» Actions that management should take in negotiations with the union » Howa provision of the collective bargaining agreement should be

interpreted and applied » How a grievance or unfair labor practice charge should be handled ,. Other labor-management interactions which impact on the union's status

as the exclusive bargaining representative of the employees. See Portland Dist., 60 FLRA 413, 416-417; NLRB, 38 FLRA 506, 522-23 (1990), aff'd sub nom. NLRB v. FLRA, 952 F.2d 523 (D.C. Cir. 1992).

• This is a narrow exception to an agency's duty to provide information. See NLRB, 38 FLRA at 520. It doesn't include:

» Guidance, advice, or counsel to management officials about the conditions of employment of bargaining unit employees. See NLRB at 523.

,. A document that only contains recommendations about how to improve the management and operations of an agency. See Dep't of HHS, Wash., D.C., 49 FLRA 61,67-69 (1994) (HHS) (Member Talkin concurring as to other matters).

• Such a document will be exempt under section 7114(b)(4l(C) only if it discusses actions that management should take with respect to negotiations, the interpretation and application of a collective bargaining agreement, or the handling of grievances or ULPs. See id.

• A document is exempt from disclosure only if it constitutes "strategiC information concerning the bargaining process." Id. at 69. Accord NLRB v. FLRA, 952 F.2d at 530-31 (upholding Authority's "distinction between nonstrategic and strategic information: information about the subject of collective bargaining versus information about the bargaining itself').

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When does the Privacy Act prevent an agency from providing information?

• What the Privacy Act Is: The Privacy Act is a federal law that prohibits an agency from disclosing personal information about federal employees without their consent. It may prevent an agency from providing certain information to a union. 5 U.S.C. section 552(a)(4), and (5),

;... The Privacy Act applies to information contained in an agency "record" within a "system of records" that is retrieved by using an individual's name or other personal identifier, The statute defines "record" and "system of records,"

• Employee consent: If an employee has said it is okay to release the information the union is requesting, an agency can provide the information without violating the Privacy Act.

;... It is not enough that an employee has asked for union representation in a particular matter; the employee must specifically consent to the release of information, See United States Dep't of the Air Force, 56th Support Group, MacDill AFB, Fla" 51 FLRA 1144,1150 (1996) (MacDW AFB). The Authority's decision in MacDW AFB is consistent with court precedent. See Abramsky v, United States Consumer Prods. Safety Comm'n., 478 F, Supp. 1040 (D,C, S,D. N.Y. 1979), See also Local 2047, AFGE v, Def. Gen. Supply Ctr., 423 F, Supp, 481 (D,C, E.D. Va, 1976), aff'd 573 F,2d 184 (4th Cir. 1978).

• Applying the Privacy Act to a request for information;· Even if an employee has not consented to the release of information, an agency may provide information to the union if the Privacy Act does not bar its disclosure, See U. S. Dep't of Justice, Fed. Bureau of Prisons Fed. Det. Ctr., Houston, Tex" 60 FLRA .\li, 94 (2004); see, e.g., Veterans Admin. Med. Cfr., Jackson, Miss" 32 FLRA 133, 137-38 (1988) (Privacy Act prohibition of disclosure without consent does not apply if disclosure is required under the Freedom of Information Act (FOIA)),

;... An agency can provide requested information as long as the disclosure would not result in a clearly unwarranted invasion of personal privacy. See U,S. Dep't of Justice, Fed. Bureau of Prisons Fed. Def. Cfr., Houston, Tex., 60 FLRA at 94.

;... If an agency believes that giving the union the information it requested would be a clearly unwarranted invasion of personal privacy and would violate the Privacy Act, the agency must show that:

• the information is contained in a system of records as defined in the Privacy Act

• disclosing the information would implicate employee privacy interests; and

• he nature and significance of thotse privacy interests. See FBP Houston, 60 FLRA at 94-95; U. S. Dep't of Transp., FAA, N. Y TRACON, Westbury, N. Y., 50 FLRA 338, 345 (1995) (New York TRACON).

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;.. If an agency makes this showing, and the union still wants the information, it must:

• Identify a public interest under FOIA; and • Show how disclosure of the information will serve that public

interest. See MacDiII AFB, 51 FLRA at 1151.

• Public Interest under the FOIA: The Authority has explained that the only relevant public interest under FOIA is the extent to which the requested information would shed light on the agency's performance of its statutory duties, or otherwise inform citizens about the government's activities. This doesn't incule the public interest in collective bargaining or the interest specific to a union in fulfilling its obligations under the Statute, in analyzing Exemption 6 of FOIA. Id.

;.. If the union establishes a public interest under FOIA and the agency establishes privacy interests, the Authority will balance the privacy interests of employees against the public interest in disclosure. See New York TRACON, 50 FLRA at 392.

• If the privacy interests are greater than the public interest, the disclosure would be a clearly unwarranted invasion of personal privacy under FOIA. This means the agency would not have to provide the information to the union unless another exception to the Privacy Act permitted disclosure. See New York TRACON, 50 FLRA at 392.

• If the public interest in disclosure is greater than the privacy interests, the agency could give the union the information without violating the Privacy Act. See New York TRACON, 50 FLRA at 392.

• Information with personal identifiers: The Authority has never found that the release of personal identifiers enhances any public interest that has been articulated in the documents. See United States Air Force Headquarters, 442nd Fighter Wing (AFR£:S), Richards-Gebaur AFB, Mo., 50 FLRA 455,460-61 (1995). Rather, the Authority has consistently found that the public interest could also be "substantially, if not equally, served by the disclosure of sanitized information which does not identify individual employees by name or other identifying information." Dep't of Transp., FAA., Fort Worth, Tex., 51 FLRA 324. 329 (1995). See also Health Care Fin. Admin., 56 FLRA 503,506 (2000) (release of promotion materials with personal identifiers redacted did not violate the Privacy Act).

;.. When requested documents concern only one name-identified employee, "it is not possible to redact the documents to protect the identity of the employee whose privacy is at stake." U. S. Dep't of Justice, Fed. Carr. Facility, £:1 Reno, Okla., 51 FLRA 584, 590 (1995). The fact that the "employee's identity is known to the Union does not lessen [the employee's] privacy interests." Id. at 589.

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What is the agency's role once a union has asked for information?

• Timely reply: The agency must reply to the union's information request in a timely manner. A timely reply is necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of bargaining. SSA Baltimore, 60 FLRA at 679; U. S. Dep't of Justice, Office of Justice Programs, 45 FLRA 1022, 1026-27 (1992). The agency must reply even if it does not believe it has to give the information to the union.

• Information that doesn't exist: When a union has asked for information that does not exist, the agency is obligated under section 7114(b)(4) of the Statute to inform the union of that fact. See, e.g., SSA, Bait., Md., 60 FLRA 674,679 (2005) (SSA Baltimore); SSA, Dallas Region, Dal/as, Tex., 51 FLRA 1219,1226 (1996) (SSA Dal/as); US. Naval Supply Ctr., San Diego, Cal., 26 FLRA 324,326-27 (1987). If the agency does not inform the union, it may have violated section 7116(a)(1). (5), and (8) of the Statute. See US. Naval Supply Ctr., San Diego, Cal., 26 FLRA at 326-27.

• Duty to furnish information: Section 7114(b)(4) requires an agency to "furnish" information to the exclusive representative.

}> The agency must actually give the information to the union; it is not enough to allow the union to look at the information. See US. Dep't of Hous. & Urban Dev., 42 FLRA 1002, 1003 (1991); US. Dep't of the Navy, Puget Sound Naval Shipyard Bremerton, WaSh, 38 FLRA 16 (1990); Veterans Admin. & Veterans Reg'l Office Buffalo, N. Y., 28 FLRA 260,266 (1987).

);> An agency must furnish the information without charge. See AAFES, Dal/as, Tex., 24 FLRA 292 (1986).

}> An agency must furnish necessary information in a timely manner. For examples, see the following cases: • Dep't of Justice, Office of Justice Programs, 45 FLRA 1022 (1992) (5-

month delay unreasonable) • US. Dep'tofthe Treasury, US. CustomsServ., sw. Region, Houston,

Tex., 43 FLRA 1362, 1374 (1992) (delay of nine months to supply information violated Statute where no reasonable basis existed for not furnishing it earlier)

• US. Food & Drug Admin. & US. Food and Drug Admin., Region VI/, Kansas City, Mo., 19 FLRA 555, 557 (1985) (5-month delay unreasonable)

• Bureau of Prisons, Lewisburg Penitentiary, Lewisburg, Pa., 11 FLRA ~, 641-42 (1983) (agency did not violate the Statute when it supplied certain information after approximately a two-month delay because it had furnished almost all of the information requested by the union almost immediately and had made a diligent effort to find certain information that was not contained in the current records).

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• Dep't of Transp" FAA, Ft, Worth, Tex" 57 FLRA 604 (2001) (agency acted in bad faith by waiting until the day of the arbitration hearing to provide requested documents),

• Destruction of Information: An agency should not destroy information the union has requested until any dispute about whether it has to provide the information has been resolved, Destruction is inconsistent with the statutory policy of effective and efficient Government because it makes the union's attempt to get the information through litigation pointless. Destruction of the information interferes with the Authority's ability to fully remedy a failure to furnish the union with information to which it is entitled under the Statute,

>- Turner v, Hudson Transit Lines, Inc" 142 F,RD, 68, 72-73 (S,D,N,Y, 1991) (a litigant has a duty to retain documents that it knows, or reasonably should know, are relevant to pending or potential litigation or are the subject of a pending discovery request; sanctions are appropriate if such documents are destroyed)

>- Jamie S, Gorelick et aI., Destruction of Evidence § 3,11 at 93 (1989) ("Destruction of evidence is sanctionable when a party knows or reasonably should know that discoverable material is relevant to pending, imminent, or reasonably foreseeable litigation,").

RMAL MEETINGS £7114 la) (2) IAll

An exclusive re entative of an approp' ' te unit in an agency shall be given the opportunity to be re ented at any fo al discussion between one or more representatives of the a and 0 or more employees in the unit or their representatives concerning ance or any personnel policy or practices or other general condition of empl nt,

To find that a meeting con tes a "formal disc 'n" under Section 7114(a)(2l1AI of the Statute, it must be s n that:

1, there is a dis 2, which is for I; 3. between e or more representatives of the agency and on

employ' s or their representatives; 4. conc ing any grievance or any personnel policy or practice or oln

co Ition of employment.

In amining these elements the Authority has held it will be guided by the intent and rpose of Section 7114 (a )(2)(A) -- to provide the union with an opportunity to

afeguard its interests and the interests of bargaining unit employees -- viewed in the

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106 Decisions of the Federal Labor Relations Authority 64 FLRA No. 16

64 FLRA No. 16

UNITED STATES DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS FEDERAL CORRECTIONAL INSTITUTION

FORT DIX, NEW JERSEY (Respondent! Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2001 (Charging Party/Union)

BN·CA·06·0 188

DECISION AND ORDER

September 28, 2009

Before the Authority: Carol Waller Pope, Chairman,

and Thomas M. Beck and Ernest DuBestcr, Members 1

I. Statement of the C •••

This unfair labor practice case (ULP) is before the Authority on exceptions to the attached decision of the Administrative Law Judge (Judge) filed by the General Counsel (GC). The Respondent filed an opposition to the GC's exceptions.

The complaint alleges that the Respondent violated § 7116(a)(I), (5) and (8) of the Federal Service Labor· Management Relations Statute (the Statute) by refusing to provide the Union with the crediting plan used to score applicants for a promotion to GS-8 Senior Officer Specialist. The Judge found that the Respondent did not violate the Statute and ordered that the complaint be dis· missed.

For the following reasons, we deny the GCs exceptions and dismiss the complaint.

II. Background and Judge's Decision

A. Factual Background

The facts are fully set out in the Judge's decision and are summarized here. Under the Agency's merit promotion procedures, applicants submit application

1, Member DuBester did not participate in this decision.

forms, copies of their most recent performance apprais. als, and sets of Knowledge, Skills and Abilities (KSAs) for a vacant position. Judge's Decision (Decision) at 2·

3. The rating panel is guided by a crediting plan 2 for the position when it scores the narrative responses to each element of the KSAs. Id. at 3. The combined scores for the KSAs are added to the points given for the most recent performance appraisal and awards received for a lotal score. [d. Applicants whose total scores are in the upper half of the applicant pool are placed on a "best qualified" list. Id. The selecting official may select anyone on the "best qualified" list or anyone who non­competitively qualifies for the position noncomp.ti· tively. Id.

Two correctional officers who were not selected for a GS·8 Senior Officer Specialist position consulted the Union about their non· selections. Id. at 5. Subse· quently, the Union sent the Agency an information request for seven categories of information pertaining to the selection process including the promotion file and the crediting plan. !d. The request indicated that the Union was investigating "the possible introduction of inadmissible criteria being used to select andlor not select this past group of GS·8 candidates." [d. (quoting GC Ex. 4 at I). The request further stated that the infor­mation was needed "to provide adequate and effective representation for [the two correctional officers)" and "to determine if the Agency acted in accordance with all applicable laws and regulations in their conduct of a proper merit system promotion board review." Id.

The Union was permitted to view the entire pro­motion file, including all the applications, but was denied access to the crediting plan. Id. at 5·6. The Union claims that after it reviewed the promotion file, it told an Agency human resources employee that the two correctional officers' scares were "unusually low." Id. at 6. Then the Union submitted a second infomlation request, this time including a section labeled "Particu· larized Need." Id .. The Union explained that it needed the seven categories of information to:

(1) assess whether the employees who sought Union assistance were minimally qualified for the vacant position;

2. Crediting plans are "documents developed by an employer to rate and rank candidates for a specific position. A crediting plan typically consists of a Jist of criteria reflecting knowl~ edge, skills, and other characteristics deemed necessary for a particular job, as well as devices used to measure whether a candidate satisfies those criteria," United States Dep ~ 0/ Jus­tice, BU/~au of Prisons v, FLRA, 988 F.2d 1267. 1268 (D.C. Cir. 1993).

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64 FLRA No. 16 Decisions of the Federal Labor Relations Authority 107

(2) determine whether the rating and ranking fac­tors were applied uniformly;

(3) determine whether merit principles. policies. and procedures were followed in a fair and equita­ble manner;

(4) compare the applicants, and the credit they received for each KSA; and

(5) learn what guidance the selecting official relied on in determining how applicants should be rated and ranked, and what was used to establish the selection certificate.

ld. at 6-7 3 ; Exceptions at 5. Three weeks after the Union submitted its second request, and one day before

the ULP was filed 4 , the Agency's human resources officer sent an .-mail to the Union president citing three decisions from the United States Courts of Appeals and an Authority decision, which she interpreted as uphold­ing the need to maintain crediting plans as confidential. ld. at 7.

B. Judge's Decision

The Judge found that the only issue before him was whether the Union's access to the crediting plan is, under § 71l4(b)(4XB), "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining." Decision at 13. He applied the Authority's analytical framework for determining necessity in Internal Revenue Service. Washington, D.C, 50 FLRA 661 (1995) (IRS; Wash, DC). ld. at 14. The Judge found that, under that frame­work, the Union was required to show a "particularized

3. The Judge observed correctly that this explanation of par­ticularized need is identical to that given by the union in Health Care Financing Administration, 56 FLRA 503, 503 n.l, 504 (2000). and found by the Authority to have articulated a particularized need for seven categories of information simi .. Jar to those requested by the Union in this case. Decision at 20 n.13. 4, The Union's second information request was dated Janu~ ary 31. 2006, and the Agency's e .. mail response to it was sent on February 21, 2006. The Judge found that the ULP charge was flied the next day, February 22, 2006. Decision at I, The GC asserts, however, that the Union signed the ULP charge on February 15, 2006, and faxed it to the Agency on the same day. Exceptions at 6 n.2. The GC explains that February 22 was the day on which the Federal Labor Relations Authority's Boston Regional Office received and docketed the ULP charge. For this reason, the GC claims that the Agency did 110t respond to the second information request until after the ULP charge was filed. However, as discussed below, whether the Agency's response preceded or followed the filing of the ULP charge, we find that the amount of time the Agency took to respond to the second request was not unreasonable and did not amount to an unfair labor practice.

need" for the crediting plan by demonstrating that the information was "required in order for the [Ulnion ade­quately to represent its members." Id., citing 50 FLRA at 669-70. In this regard, the Judge found that whether the Union has shown a particularized need will be judged by whether the Union has adequately articulated its need at or near the time of its request, rather than at the hearing in any litigation over the request. ld. The Judge also found that, under IRS. Kansas, the agency must identifY and articulate any countervailing anti-dis­closure interests at or near the time it denies the request. ld.

Even though the Agency did not furnish the credit­ing plan, the Union's representatives were permitted to review the entire promotion file, including the KSA nar­ratives. Id. at 17. The Judge found that its access to these files was adequate to allow the Union to articulate a OIparticularized need" and "to demonstrate that the crediting plan was the only way of rationally distin­guishing the successful from the unsuccessful candi­dates." ld. at J 9. [nstead, the Judge found that the Union argued )0 the Agency only that the grievants' scores were "unusually low" but not that the crediting plans were '~essential" to determine that the rating and ranking factors were applied unfairly "in this case". Jd; at 19-20.

III. Positions of the Parties

A. GC's Exceptions

The GC's exceptions can be summarized as fol­lows: (I) the Union made a particularized showing of need for the crediting plan; (2) the Judge erred in con­eluding that the Union's access to the entire promotions file made access to the crediting plan unnecessary; and (3) the Judge erred in concluding that the Agency com­plied with § 7114(b)(4).

The GC contends that the Union made a showing of paJ1icuiarized need for the crediting plan after the Union had reviewed the promotion file. Exceptions at 8. The GC notes that the Authority, in Health Care Financing Administration, 56 FLRA 503, 507 (2000) (HCFA), held that requiring a union to identify specific irregularities in the application process in order to dem­onstrate a particularized need for a crediting plan and other information was asking too much in that it would have required the union to describe the contents of doc­uments it had not seen. Exceptions at 8-9. Stated other­wise, the burden that the Judge's decision placed on the Union constituted a significant departure from the Authority'S decision in HCFA. Id. at 9.

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108 Decisions of the Federal Labor Relations Authority 64 FLRA No. 16

The GC argues that the Judge erred further in con­cluding that the Union's review of the applications ren­dered the crediting plan unnecessary. Id. While acknowledging that a review of the applications could establish a potential breach of the collective bargaining agreement, the GC contends that only a review of the crediting plan could determine whether an actual breach occurred and, therefore, whether a grievance should be submitted to arbitration. Id. at 9-10. In addition, the GC asserts that the Union needs the crediting plan because its investigation was not limited to the two correctional officers but, instead, concerned the selection process as a whole, including the possibility that inadmissible cri· teria were used. Id. at 11-14.

The GC contends that the Agency did not fulfill its duty under § 7114(b)(4) to engage in a dialogue with respect to the Union's request for the crediting plan but, instead, declined the request based on its view that it was a "restricted document" according to its human resources manual. Id. at 16. The GC asserts that the Agency's subsequent statement citing precedents recog­nizing the need to maintain the confidentiality of credit­ing plans was not a proper articulation of its countervailing non-disclosure interest because of the statement's timing. Id. at 16-18. Further, the GC asserts that the statement is insufficient because it does not address the Union's offer to view the crediting plan instead of receiving a copy. Id. at 19. In sum, the GC contends that the Judge erred in failing to conclude that the Agency's failure to reveal its anti-disclosure con­cerns sooner and consider the Union's proposed com­promise violated § 7114(b)(4).

B. Agency's Opposition

The Agency contends that the Judge did not err when he found that the Union failed to establish a par­ticularized need for the crediting plan and concluded that the Agency did not violate § 7114(b)(4). Opposi­tion at 1. It contends that the GC is attempting to make the showing of particularized need for the Union by reconstructing the Union's information request. ld. at 9. Specifically, the Agency points out that the

GC's arguments that the Union required the credit­ing plan to enhance its litigation posture in arbitration and to carry out an investigation of the selection process were not made by the Union. Id. at 11-12. The Agency asks the Authority to reject the GC's "attempts to recon­struct the Union's requests." ld. at 9.

Focusing on the Union's attempt to establish par­tiCularized need, the Agency contends that the Union's unsupported assertion that the scores of the two correc-

tional officers were unusually low did not establish a particularized need at the time of the request. /d. at 9-10. In this regard, the Agency contends that the GC's reliance on HCFA is misplaced. Id. at 11, The Agency argues that HCFA can be distinguished from the instant case. In HCFA, the agency did not provide any informa­tion in response to the union's requests, declined to respond to one request, and took seven weeks to respond to a second. /d., citing HCFA, 56 FLRA at 504. The Agency here argues that it promptly responded to the Union's information requests and provided access to the entire promotion file. {d. According to the Agency, HCFA does not excuse the Union's failure to articulate why it still needed the crediting plan aftcr reviewing the promotion file. Id. Moreover, the Agency contends that the record supports the Judge's finding that the Union did not require the crediting plan to adequately represent grievants. ld. at 12. Specifically, the Agency argues that a review of the KSA instructions and the applicants' responses to each KSA allow a comparative analysis without access to the crediting plan. Id. al 13.

The Agency also asserts that contrary to the argu­ments of the GC it did not fail to act promptly and did not violate § 7114(b)(4) when it failed to respond to the Union's second information request for three weeks. Id. at 15-16. The Agency argues that, in light of the large quantity of boilerplate and legalistic language in the Unionls infonnation request, three weeks was not an unreasonably long time by which to respond to it. /d. at 16-17.

IV. Analysis and Conclusions

A. The Union did not articulate a particularized need for the crediting plan.

Under § 7114(b)(4) of the Statute, an agency must furnish information to a union, upon request and "to the extent not prohibited by law," if that information is: (1) "normally maintained by the agency in the regular course of business"; (2) "reasonably available"; (3) "necessary for full and proper discussion, under­standing, and negotiation of subjects within the scope of collective bargaining;!1 and (4) not "guidance. advice) counselor training."

(n order to demonstrate that information is "neces .. sary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining" under § 7114(b)(4) of the Statute, a union "must establish a particularized need for the infonnation by articulating, with specificity, why it needs the requested information, including the uses to which the union will put the information, and the connection

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between those uses and the union's representational responsibilities under the Statute." IRS, Wash., D.C, 50 FLRA at 669. It is not sufficient that the information would simply be useful or relevant; instead, the infor­mation must be "required in order for the union ade­quately to represent its members," Id. at 669-70. The union '5 responsibility for articulating its interests in the requested information requires more than a conclusory assertion and must permit an agency to make a reasoned judgment as to whether disclosure of the information is required under the Statute. [d. at 670. To accomplish this, a union must articulate its need at or near the time of the request, not for the first time at the ULP hearing. United States Dep! of Justice, INS, N. Region, Twin Cit­ies, Minn., 51 FLRA 1467, 1472 (1996) (Twin Cities).

The agency is responsible for establishing any countervailing anti-disclosure interests and, like the union, must do so in more than a conclusory way. [d. at 1472-473, See also HCFA, 56 FLRA at 506. Such interests must be raised at or near the time it denies the union's request. See United States DOl, Fed. Bureau of Prisons, Fed. Del. Clr., Houston, Tex., 60 FLRA 91, 93 (2004) (FDC Houston) (citation omitted).

The record supports the Judge's determination that neither of the Union's information requests articulated a particularized need for the crediting plan. As the Judge found, the Union's initial request explained its need for the requested information, including the crediting plan, in order to determine whether the Agency complied with all applicable laws and merit promotion principles in its selection procedures. Decision at 16, In response to its initial request, the agency provided the Union the opportunity to review the entire promotion file, except for the crediting plan. It is undisputed that Union offi­cials were provided an opportunity to come to the Agency's office and review the promotion file and com­pare the KSA responses of the two correctional officers with those of the other applicants, including the selectee. See id. at 17-18; Exceptions at 4. The GC also acknowledges that if a thorough review had been con­ducted by the Union officials, they "would have known, to an absolute certainty" whether the selection process was flawed, and the Union would not have required access to the crediting plan to discover an error in the selection process. }d.

The Union then submitted a second information request that was essentially identical to the first but also included a section labeled "particularized need". Even though that section used the same language that the Authority found to establish a particularized need in HCFA, the specific facts of this case warrant a different result.

In HCFA, the agency produced no documents in response to the union's two information requests and expressed no security concerns regarding the disclosure of crediting plans. By contrast, here, the Agency pro­duced "upwards of several hundreds of pages" and pro­vided the Union the opportunity to review the entire promotion file, except the crediting plan, and to explain why those documents did not satisfy its needs.

Additionally, unlike the agency in HeFA, the Agency human resources officer here denied access to the crediting plan in response to the first request based on her understanding that access to crediting plans was restricted to members of the rating panel. See Decision at 5. In response to the second request, the Agency cited decisions from the District of Columbia and Seventh Circuits which held that crediting plans are exempt from mandatory disclosure under the Freedom of Information Act (POIA), 5 U.S.C. § 552(b)(2), because they relate "solely to the internal personnel rules and practices of an agency." National Treasury Employees Union v. United States Customs Serv" 802 F.2d ·525,531 (D.C.

Cir. 1986); Kaganove v. EPA, 856 F.2d 884, 886-90 (7th

Cir. 1988). Subsequently, the D.C, Circuit held that the potential for harm from disclosure continued even after the challenged selection process was completed. United States Dep 1 of Justice, Bureau of Prisons v. FLRA, 988 P,2d 1267 (D.C. Cir. 1993) (Bureau of Prisons).

The GC argues that the Agency's explanation of its countervailing anti~disclosure concerns were "not responsive to" the Union's offer to view the crediting plans instead of receiving a copy. Exceptions at 19. In this regard, the GC mistakenly asserts that the cases cited by the agency address only risks associated with the release of copies of crediting plans. fd. at 19-20. All three decisions discussed above concern the risks of dis­closing information within the crediting plan regardless of the method of disclosure. Specifically, in Bureau of Prisons, the DC Circuit determined that having the con­tents "known to the Union" would compromise the agencies' interest in maintaining the confidentiality of their crediting plans." 988 F.2d at 1272.

In its exceptions, the GC offers additionalexplana­tions of the Union's need for the crediting plan, specifi­cally that: (l) access to the crediting plan would enhance the Union's litigation posture in arbitration; (2). thorough review of the promotion file would have been too burdensome; and (3) the Union's information request was based not on the non~selectjons of the two correctional officers, but~ instead, on an investigation of the selection process as a whole. Exceptions at 10-I I; 13-14. However, the Authority will only consider asser-

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tions that are made at or near the time of the request and not those that are made for the first time al the ULP hearing. See Tlvin Cities, 51 FLRA at 1472; United States EEOC, 51 FLRA 248, 258 (1995) (Authority declined to consider GC's explanation, at the hearing, for the Union's need for work assignment information when the Union offered no explanation at the time of the information request). Based on the foregoing, the Authority finds that the Union did not articulate a partic­ularized need for the crediting plan at or near the time of its requests for information.

Accordingly, we deny the GC's exception.

B. The Agency's alleged lack of promptness in responding to the request for information did not amount to an unfair labor practice.

The GC asserts that the Agency committed a ULP when it did not respond to the Union's second request for information for three weeks. Exceptions at 16-21. The GC finds support for this assertion in the Judge's statement that the Agency's response "was somewhat late in coming." [d. at 16, citing Decision at 21. Although the Judge did make this statement, he also found that the Agency had previously articulated its anti-disclosure concerns, at least in general terms, when the Agency human resources officer responded to the first request and explained that access to the crediting plans was restricted to members oflh. rating panel. [d at 21. As discussed above, the Authority finds the Agency's actions here to be distinguishable from those of the agency in HFCA as well as in FDC Houston, where the agency did not articulate its anti-disclosure concerns until the ULP hearing. 60 FLRA at 94-95. Furthermore, given the nature of the Union's informa­tion requests, which was "encrusted with boilerplate" and required the Agency to "sift through pages of legal­ism" (Decision at 15-16), the Agency required time to review the requests and formulate a legally sufficient response. These circumstances do not establish that a delay of three weeks was unreasonable. See IRS Austin District Office and NTEU, Chapter 52,51 FLRA 1191, 1198 (1996) (Authority found a delay of eight months to be unreasonable.); u.s. Department of Justice and AFSCME, Local 2830, 45 FLRA 1022, 1026 (Authority found a delay of five months to be unreasonable under "the circumstances of this case.")

Accordingly, we deny the GC's exception.

V. Order

The complaint is dismissed.

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