[Federal Register Volume 59, Number 237 (Monday, December 12, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-30494]


[[Page Unknown]]

[Federal Register: December 12, 1994]


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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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