Transcript Information Requests and ULPs

Information Requests
Melissa Baumann
Sec/Treas NFFE FS Council
John R. Obst
VP NFFE
Ever been perplexed with a
grievance or negotiations proposal?
Maybe you need a better
understanding of the issues.
Why do an information request?
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To get evidence whether or not a
grievance or other complaint should be
filed.
To get additional evidence to support a
complaint/grievance/arbitration.
To get information to support the
Union’s negotiation proposal and/or to
refute management’s positions in
negotiations.
5 USC 7114(b)(4)
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Agencies must furnish info which
is:
• normally maintained in the regular
course of business;
• reasonably available and necessary
for full and proper discussion,
understanding, and negotiation of
collective bargaining subjects.
5 USC 7114(b)(4)
(cont’d)
•Which is not:
guidance, advice, counsel, or
training provided for
management officials or
supervisors, relating to
bargaining;
 prohibited from disclosure by
law; for example, by the Privacy
Act.
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Sounds Easy.
Right?
The devil is in the details.
The details can be found at:
 Guidance from the FLRA.
http://www.flra.gov/Guidance_infor
mation
 Various case law (available at
www.flra.gov:
• 50 FLRA 86 (IRS, Kansas City)
• 50 FLRA 55 (FAA, Westbury)
Records must be “normally maintained”
and “reasonably available.”
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Agency must have the data/documents.
Union cannot ask Agency to create new
analyses, although the raw data for the
analyses may be requested.
“Reasonably available” has meant that the
Agency would not have to go to extreme
and excessive means to provide data.
“Necessary for full and proper discussion…”
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“Particularized need” may not be simple
statements such as “Info is needed to
represent employees.”
Union must explain:
• why it needs the info;
• how it will use the info;
• how the information’s use relates to the Union’s
representational responsibilities.
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Union need not disclose strategy or identity
of potential grievant.
For personal identifiers on data, the Union
must demonstrate a separate particularized
need.
“Not guidance, advice, counsel, etc.
relating to bargaining…”
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Cannot be management-to-management
info related to bargaining.
Management may try to use this to deny
other types of management memos.
“Not prohibited by law.”
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Privacy Act, Privacy Act, Privacy Act!
Rarely does the FLRA find reason for
personal identifiers to be released.
Sanitized data from which people can be
identified is also generally not available.
In requesting release of personal
identifiers the Union must demonstrate a
public interest or show that the info is
covered by a “routine use” under the
Privacy Act.
Good luck!
Agency response.
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Agency must respond within a
reasonable amount of time.
• “Reasonable” depends upon the data
requested.
• Union should be able to expect
acknowledgement of request within
two weeks.
• Union should indicate a (reasonable)
date by which it expects to receive the
information.
Agency response, cont.
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Agency must provide data or
communicate why it is not
providing the data, for example:
• Union did not give adequate
particularized need;
• Privacy Act concerns;
• not regularly maintained;
• documents do not exist.
Refusal to bargain in good
faith…
If the Agency does not give the
Union its reasons for denying
disclosure of information, or doesn’t
respond at all, this is a refusal to
bargain in good faith (5 USC
7116(a)(1) and (5)), even if the
Union is not entitled to the
information for a valid reason.
Resolution.
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Agency and Union are expected to
discuss Information Requests in good
faith:
• clarification of particularized need;
• alternative forms or means of disclosure
that may satisfy the Union’s need for
the information;
• alternative forms or means of disclosure
that satisfy the Agency’s reasons for not
disclosing.
FLRA Analysis:
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Has the Union shown a particularized need
(including for personal identifiers, if
requested)?
Has the Agency given an adequate
analysis of its interests, other 7114(b)(4)
reasons, or Privacy Act reasons for not
disclosing?
Have the Parties communicated their
disclosure interests and explored other
alternatives?
The Process for making a request.
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Provide particularized need, including
reason you chose timeframes for the data.
If you need personal identifiers ask for
them. But also ask that, in the
alternative, the data be provided in
sanitized form.
Management generally won’t give you
what you don’t ask for (in disciplinary
cases, ask for all the information in the
file, especially exculpatory information).
Process (cont’d.).
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Using the format suggested by the FLRA
(www.flra.gov/gc/inf_guid.html), request
information from:
• management official who has the data;
• labor-relations specialist;
• other management official(s) as appropriate.
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E-mail to official(s), with cover note
asking that they contact you if they have
any questions or concerns about the
request.
CC yourself on the e-mail!
Wait.
Response from management.
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You get the data -- GREAT!
If management has questions about the
particularized need, the exact data needed, etc. • Work with management to clarify concerns.
Keep notes of meetings, with date, time, who
was there, decisions made. If e-mail, cc
yourself and keep copy.
If management refuses to provide data based on
a particular, stated interest
• If you think you could do better clarifying your
position, need, etc. with management, do so.
• If you disagree with management’s
assessment, tell them so, and ask to meet to
discuss.
FOIA
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vs.
Statutory period for
response frequently
not adhered to .
Must pay for
information.
Access for anyone in
public.
Request goes to FOIA
officer, no connection
with labor issues.
Labor Statute
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No time limit.
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No cost.
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Access limited to
Unions.
Labor relations officer
usually responds.
FOIA
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Remedy via court
litigation which costs
money.
Union must enforce.
Labor Statute
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Remedy via ULP
process – no cost.
FLRA assistance in
enforcement:
• Pre-charge in working
with Agency and Union;
• Litigating ULP
complaint.
No status quo ante.
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Status quo ante in all
cases, and nontraditional remedies in
appropriate cases.
FOIA
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Only paper data.
Exemptions apply
(e.g. documents
that relate solely to
internal personnel
rules and
practices).
Labor Statute
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Broader rights – to
inspect, answer,
have dialog with
management.
No exemptions,
but union must
show particularized
need.
Hypothetical situation:
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Employee contacts you with a complaint
that he was denied the use of credit hours
on Fridays because of “unit coverage
issues.”
He knows that other unit employees are
frequently absent on Fridays, but doesn’t
know if they are using credit hours, on AL
or some other type of leave.
Before filing any complaint, an info
request is probably the best first step.
Use the modified FLRA format as a default.
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DATE:
May 1, 2006
REQUESTOR:
NFFE Forest Service Council, IAM&AW
UNION CONTACT:
John R. Obst
AGENCY CONTACT:
XXX, (If you are not the appropriate
official to respond to this request, please forward it to that
official and so inform me.)
INFORMATION REQUESTED: XXX
DATE REQUESTED TO RECEIVE THE INFORMATION: May
30, 2006
PARTICULARIZED NEED:
PRIVACY ACT AND THE PUBLIC INTEREST:
OTHER MATTERS: Please contact me if the agency
requires further clarification of our request or wants to meet to
discuss the request, or a format or means of furnishing this
information to the Union, or the issues giving rise to this
request.
Info request example.
INFORMATION REQUESTED:
“The Union requests copies of Information
Services employee timesheets for the past
two years. The Union also requests copies
of all customer comment cards and copies
of all documents related to all customer
service (including internal customers), and
documents and policies related to
“coverage,” for the same time period for
the Information Services unit.
Personal identifiers may be omitted.”
Info request example.
PARTICULARIZED NEED:
“The documents requested are needed to
evaluate a possible grievance by a
Bargaining Unit employee regarding the
Information Services supervisor’s refusal
to authorize the use of credit hours on
Fridays. The Union will use these
documents to evaluate unit “coverage”
and feedback on customer service to
determine whether the denial of the use of
credit hours was reasonable and
appropriate.”
Info request example
PRIVACY ACT AND THE PUBLIC INTEREST:
“The Union believes that some these items are
covered by the Privacy Act, but the Union does not
know which specific system of records. The
disclosure of this information would allow the
public to monitor the manner in which the
Government applies the Alternative Work
Schedule program, whether it does so in a fair and
equitable manner, and whether the needs of the
Government’s customers are being adequately
met. The time period chosen should allow the
Union to conduct an adequate evaluation without
this request being burdensome on the Agency.
Since personal identifiers are not requested, the
Union believes that the public interest outweighs
any privacy interests.”