American Federation of Government Employees, AFL-CIO, Local 2263 v. Federal Labor Relations Authority

F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
July 11, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

A M ERIC AN FED ER ATIO N O F
GO VERNM ENT EM PLOYEES, AFL-
CIO, LOCAL 2263,
No. 05-9543
Petitioner,

v.

FED ERAL LA BO R R ELA TIO NS
A U TH O RITY ,

Respondent.

Petition for Review of an O rder from the
Federal Labor R elations Authority
(FLRA No. DA-CA-01-0876)

K evin M . G rile, A merican Federation of Government Employees, AFL-CIO,
Chicago, Illinois (M ark D. Roth, Charles A. Hobbie, American Federation of
Government Employees, AFL-CIO, W ashington, D.C., with him on the briefs),
for Petitioner.

W illiam E. Persina, Attorney (David M . Smith, Solicitor, W illiam R. Tobey,
Deputy Solicitor, with him on the brief), Federal Labor Relations Authority,
W ashington, D.C., for Respondent.

Before KELLY, B AL DOC K , and M U RPH Y, Circuit Judges.

M U RPH Y, Circuit Judge.
I. Introduction

The American Federation of Government Employees, AFL-CIO, Local

2263 (“Union”) alleged employer Kirtland Airforce Base (“Kirtland”) comm itted

unfair labor practices in violation of 8 U.S.C. § 7116(a)(1), (5), and (8) by failing

to release certain information to the Union pursuant to 5 U.S.C. § 7114(b)(4).

The Federal Labor Relations Authority (“FLRA” or “Authority”) issued a

decision and order dismissing the Union’s consolidated complaint. The Union

petitions for review. This court exercises jurisdiction pursuant to 5 U.S.C. §

7123(a) and denies the Union’s petition. Although the interpretation of 5 U.S.C.

§ 7114(b) announced in the Authority’s decision is incorrect, we conclude the

remainder of the decision, standing alone, is sufficient to support dismissal of the

Union’s complaint. Accordingly, we enforce the A uthority’s order.

II. Background

A. Legal Context

“The Federal Service Labor-M anagement Relations Statute, 5 U.S.C. §§

7101–7135 (2000), governs relations between federal agency employers and

federal employees.” Nat’l Treasury Employees Union v. FLRA, 437 F.3d 1248,

1249 (D.C. Cir. 2006). W hen certain conditions are met, the statute requires an

agency employer to give a union information “which is reasonably available and

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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).

To demonstrate the information requested is necessary, a union “must

establish a particularized need for the information by articulating, with

specificity, why it needs the requested information, including the uses to which

the union will put the information and the connection between those uses and the

union’s representational responsibilities.” IRS, Wash., D.C., & IRS, Kansas City

Serv. Ctr., Kansas City. M o., 50 F.L.R.A. 661, 669 (1995). To establish

particularized need, a union must make “more than a conclusory or bare

assertion.” Id. at 670. Instead, “a request for information must be sufficient to

permit an agency to make a reasoned judgment as to whether information must be

disclosed.” Id.

B. Factual Background

The facts underlying this appeal are not contested. The American

Federation of Government Employees, AFL-CIO is the recognized bargaining

representative for a unit of employees of the Air Force M ateriel Command. The

Union is an agent of the American Federation of Government Employees and

represents employees at Kirtland. The parties’ actions are governed by the Federal

Service Labor-M anagement Relations Act. See 5 U.S.C. § 7114.

Beginning in July 2001, the U nion submitted to Kirtland a series of letters

asking for information concerning certain m erit promotion actions. The U nion’s

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letters, all substantially identical, requested information concerning a total of

fifteen promotion actions undertaken by Kirtland. In time, the Union made clear it

sought information about some of the merit promotion actions pursuant to 5 U.S.C.

§ 7114(b)(4). Each of the letters contained requests for fifteen specific categories

of information regarding the job opening, applicant pool, selection process, and

selectee for the fifteen promotion actions. 1 Each letter stated the Union sought the

information to “perform Post-Promotion Audit[s],” “ensur[e] compliance with

M erit System Principles,” and “monitor contract compliance.”

W hen Kirtland repeatedly asked the Union to clarify and elaborate on its

need for the information, the Union responded only that it required the data to

address employee concerns and to represent employees in possible future legal

action. After a further exchange of correspondence, Kirtland determined the

Union’s requests and explanations failed to meet the “particularized need”

standard articulated by the FLRA. Kirtland therefore elected not to release the

requested information to the Union.

C. Procedural Background

In response to Kirtland’s refusal to release the requested information, the

Union filed a series of unfair labor practice complaints which were consolidated

for hearing before an administrative law judge (“ALJ”). The complaints alleged

1
One letter requested only fourteen categories of information.

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Kirtland violated 5 U.S.C. § 7114(a)(1), (5) and (8) by failing to provide the

requested information regarding Kirtland’s merit promotion practices. The ALJ

was critical of the brevity and generality of the Union’s explanation of its need for

the requested information. Nonetheless, he characterized the Union’s need for six

of the requested categories of information as “apparent,” “self-evident,” or

“evident.” He therefore determined Kirtland had a duty to furnish this information

to the Union. The ALJ recommended the FLRA issue an order requiring Kirtland

to furnish to the Union the six categories of requested information.

Kirtland filed exceptions to the ALJ’s decision with the FLRA. The

Authority issued a decision and order reversing the ALJ’s decision. It concluded

the Union’s information requests did not allow Kirtland “to make a reasoned

judgment as to whether the disclosure of all the requested information was

required” by the Federal Service Labor-M anagement Relations A ct. The Authority

therefore dismissed the Union’s complaint. The Union petitions for review of the

Authority’s ruling.

III. Analysis

The “FLRA is entitled to considerable deference when interpreting and

applying the provisions of its enabling statute. Actions by [the] FLRA may be set

aside only if they are arbitrary, capricious, or an abuse of discretion or otherwise

not in accordance with law.” Am. Fed’n of Gov’t Employees v. FLRA, 288 F.3d

1238, 1240 (10th Cir. 2002) (quotations and citation omitted). This court will not,

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however, defer to the A uthority’s interpretation of the Federal Service Labor-

M anagement Relations Statute if, upon examination of the statutory language at

issue, it is clear the Authority’s interpretation is incorrect. See Fort Stewart Sch.

v. FLRA, 495 U.S. 641, 645 (1990).

The A uthority gave two reasons in support of its dismissal of the U nion’s

complaint. First, the Authority stated, “where a union fails to establish its need

for all the information requested, a respondent is not required to provide the

requested information, even if the union has established a need for ‘some’ of the

information.” United States Dep’t of the Air Force Air Force Materiel Command

Kirtland Air Force Base Albuquerque, N.M ., 60 F.L.R.A. No. 152, 2005 W L

845150, at *7 (M arch 31, 2005). Second, the Authority noted the Union failed to

articulate a particularized need for the categories of information it requested, even

when Kirtland made reasonable requests for clarification. Id. at *6. Despite the

Union’s failure to articulate a particularized need, the ALJ determined Kirtland

was required to provide the Union with items for which the Union’s need was

“apparent” from its initial requests. The Authority, however, disagreed. It ruled

the Union did not meet its burden to demonstrate a particularized need when the

Union’s initial calls for information triggered genuine and reasonable requests for

clarification by Kirtland, and when the Union failed to provide a meaningful

response to those requests for clarification. Id. at *7.

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 As an initial matter, this court must determine w hether the A uthority’s

interpretation of § 7114(b) is correct in light of the statutory language at issue.

See Fort Stewart Sch., 495 U.S. at 645. Section 7114(a) requires government

agencies to negotiate in good faith with union representatives. 5 U.S.C. §

7114(a)(4). Subsection (b) provides, “[t]he duty of an agency . . . to negotiate in

good faith under subsection (a) . . . shall include the obligation” to give the union,

“upon request and, to the extent not prohibited by law , data . . . which is

reasonably available and necessary for full and proper discussion, understanding,

and negotiation of subjects within the scope of collective bargaining.” Id. §

7114(b).

Under the plain language of the statute, if a union has established

information is “necessary,” and if the other disclosure requirements are met, a

government agency is obligated to provide that information to the union. The

statute contains no exceptions. The FLRA’s construction of § 7114(b), however,

would allow government agencies to deny entirely a union’s multipart request for

information whenever the union fails to establish a particularized need for all parts

of that request. Under this interpretation of the statute, if a union’s request sought

a variety of categories of information and the union established a particularized

need for all but one of those categories, an employer could deny the entire request

based on that one shortfall. This approach is impermissible because it creates an

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exception to a government agency’s duty to furnish information to a union that is

contrary to the text of the statute itself.

In an attempt to buttress its interpretation of § 7114(b), the FLRA cites

United States Department of Labor, Washington, D.C., 51 F.L.R.A. 462, 476

(1995). The FLRA’s reliance on that case, however, is misplaced. In Department

of Labor, a union sought five years’ worth of name-identified disciplinary

suspension records. Id. at 464. The FLRA determined the union did not establish

why the union needed records for the entire five-year period or why the records

needed to be name-identified. Id. at 476–77. The Authority therefore concluded

the union failed to show the information was necessary under § 7114(b)(4). Id. at

477. Department of Labor makes clear a union must articulate and establish with

specificity why it needs requested information, the uses to which it will put that

information, and the connection between those uses and the union’s

representational responsibilities. Id. It does not, however, support the proposition

that an agency may withhold all categories of requested information when a union

fails to establish a particularized need for some, but not all, of those categories.

The Authority is incorrect in stating that “w here a union fails to establish its

need for all the information requested, a respondent is not required to provide the

requested information, even if the union has established a need for ‘some’ of the

information.” Air Force Materiel Command, 2005 W L at * 7. The FLRA’s

interpretation of § 7114(b) contradicts the plain language of the Federal Service

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Labor-M anagement Relations Act and is not supported by FLRA precedent.

Because the FLRA’s interpretation of §7114(b) is incorrect, it is not a valid basis

for the Authority’s decision.

Because the FLRA’s first reason for dismissing the Union’s complaint is not

valid, this court must determine whether its second reason, standing alone, is

sufficient to support its decision. See BDPCS, Inc. v. FCC, 351 F.3d 1177, 1183

(D.C. Cir. 2003) (noting that an appellate court may affirm an agency decision

based on multiple grounds so long as any one of the grounds is valid). As noted

above, in addition to its first reason for dismissing the Union’s complaint, the

Authority stated the Union failed to meet its burden under the particularized need

standard when Kirtland made genuine and reasonable requests for clarification and

when the Union failed to provide a substantive response to those requests.

B ecause this explanation is grounded in precedent and supported by the record, w e

conclude it is sufficient, on its own, to support dismissal of the Union’s complaint.

In United States Department of the Treasury Internal Revenue Service

Washington, D.C., a union requested certain employment records from a

respondent. 51 F.L.R.A. 1391, 1392 (1996). W hen the respondent questioned the

need for the records and asked for additional information, the union responded

only that the records were “‘necessary in order to support [its] allegations.’” Id. at

1396. The FLRA characterized the union’s response as “conclusory.” Id. The

Authority determined when a respondent makes a reasonable request for additional

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information from a union, it is incumbent upon the union to provide further

substantive explanation in order to establish a particularized need. Id.; see also

Health Care Fin. Admin., 56 F.L.R.A. 503, 507 n.3 (2000) (noting if a respondent

seeks clarification as to the reasons a union requires certain information, the union

is required to provide clarification or it “run[s] the risk of failing to meet its

burden of establishing a particularized need for the information requested.”).

Although the union claimed its need for the records should have been “reasonably

obvious,” the FLRA rejected this assertion. Dep’t of the Treasury, 51 F.L.R.A. at

1396. The Authority noted that accepting the union’s argument would have

required it “to conclude that the [respondent’s] request for clarification was either

disingenuous or unreasonable.” Id. Because such a conclusion was “not supported

by the record,” the Authority determined the union’s need for the information was

not obvious. Id.

In the instant case, Kirtland asked the Union to explain its need for all

fifteen categories of information it sought. In a determination not contested on

appeal, the Authority concluded Kirtland’s calls for clarification were not

unreasonable or disingenuous. Air Force Materiel Command, 2005 W L 845150, at

*7. Although it did not articulate its logic w ith perfect clarity, this court can fairly

discern the Authority’s reasoning. See Lamb v. Thom pson, 265 F.3d 1038, 1046

(10th Cir. 2001) (noting this court “will uphold a decision of less than ideal clarity

if the agency’s path may reasonably be discerned” (quotation omitted)). Relying

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on Department of the Treasury, the FLRA reasoned if it concluded the U nion’s

initial requests for the fifteen categories of information satisfied the particularized

need standard, it would at the same time be forced to conclude Kirtland’s requests

for clarification were either disingenuous or unreasonable. The record, however,

demonstrated Kirtland’s requests for clarification were sincere and reasonable.

The Authority therefore determined the Union’s initial information requests did

not satisfy its burden of demonstrating a particularized need. M oreover, because

the Union did not provide a meaningful response to Kirtland’s requests for

clarification, the Union never established a particularized need for the information

requested.

In sum, the Authority’s second reason for dismissing the Union’s complaint

is supported both by FLRA precedent and the record. Because this second reason

is independent of the Authority’s incorrect interpretation of § 7114(b), it is a

sufficient basis for the Authority’s decision. See BDPCS, Inc., 351 F.3d at 1183.

W e therefore conclude the FLRA did not abuse its discretion in dismissing the

Union’s complaint.

IV. Conclusion

Although the Authority’s interpretation of §7114(b) is erroneous, the

remainder of its decision provides a valid reason for dismissing the U nion’s

complaint. W e therefore deny the Union’s petition and enforce the A uthority’s

decision.

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