“PARTICULARIZED NEED” MADE CLEARER
No one will ever accuse FLRA’s (or the courts’) “particularized need” concept of being clear and easy to apply. In fact, it is closer to a full employment program for labor lawyers than it is a workable concept in the hands of everyday L-M practitioners. But that is why two fairly recent FLRA decisions are worth remembering, i.e., they give practitioners useful and concrete advice.
We owe the first case precedent to the Congressional Research Employees Association (CREA). When management announced it would be reducing positions, CREA wanted the data behind that decision. FLRA gave it to them even though whether the agency reduced positions or RIF’d employees is substantively not negotiable. The Authority did this because CREA asserted two reasons that met the particularized need standard.
First, the request articulates that it seeks the information in order to resolve whether the Agency had determined to conduct a RIF through attrition, a RIF that the Agency had stated “unequivocally … [would] take place in the future if any employees remain.” Award at 34. Further, as noted in the request, the Union’s reference to Article XVIII, Section 8 serves only to reinforce its assertion, as that Article deals directly with the Agency’s ability to accomplish a RIF through attrition. See Joint Exhibit 5. Second, by citing to particular contract language, the Union also notified the Agency that, as the Arbitrator phrased it, the Union sought to “police the agreement[.]” Id. at 34. The Union thus articulated, with specificity, why it needed the information including the uses to which it will put the information, and the connection between those uses and the Union’s representational responsibilities under the Statute. Therefore, the Union established a particularized need for the information under § 7114(b)(4) of the Statute. See FAA, 55 FLRA 254 (1999) (union demonstrated a particularized need for information to administer the parties’ agreement); Dep’t of Justice, Immigration and Naturalization Serv., Northern Region, Twin Cities, Minnesota v. FLRA, 144 F.3d 90, 93 (D.C. Cir. 1998) (union may request information under the Statute “by articulating a particularized need for the information in terms of fulfilling its representational duties and overseeing the administration of the collective bargaining agreement”); NLRB v. FLRA, 952 F.2d 523, 526 (D.C. Cir. 1992) (citation omitted) (“it is well settled that section 7114 creates a duty to provide information that would enable the [u]nion to process a grievance or to determine whether or not to file a grievance [ ]”).
If you are in a similar situation, start your explanation by saying that you need the data to, “. . . determine whether the Agency has decided to . . .” and/or throw in that you need it to “police your agreement” or regulations or past practice or even appropriate laws. Check out the CREA case at 63 FLRA 515.
The second piece of useful case law followed shortly after CREA. There AFGE Council 215 requested information to determine “whether there was a legitimate operational need for the Respondent’s proposed change,” even though the proposed change was also not substantively negotiable. More specifically, FLRA said,
However, the Charging Party’s request clearly explained its intent to use the information to assess the need for office coverage and the various ways such coverage, if needed, could be achieved. The Charging Party also explained that the information was necessary to determine whether the Respondent’s stated operational need for its bargaining proposal was legitimate or simply “hard ball negotiation tactics.” Id. at 4. Thus, contrary to the Judge’s finding, the Charging Party did explain the uses to which it would put the information and the connection between those uses and its representational responsibility to engage in collective bargaining.
So, when requesting information also use the explanations that you need it to “assess the legitimate need” for a proposed change. Check out the AFGE case at 64 FLRA 293.