NFFE, NON-DISCRIMINATION AND THE NLRB
Way back in 1986 NFFE demanded an agency give it data on employees so that it could pursue civil rights claims on their behalf, and FLRA upheld the union’s ground breaking logic then as well as two years later. See NFFE Local 29, 22 FLRA 667 (1986) and NFFE Local 589, 32 FLRA 133 (1988). Not long after those precedent-setting cases, AFGE joined the struggle in 32 FLRA 133, 44 FLRA 1405, firmly establishing that unions are entitled to information about how various personnel actions such as awards, promotions, training, etc. are doled out among the various civil rights protected groups. Then, a week ago the NLRB issued a decision adding its weight to FLRA precedent on this issue. That decision will likely play a role shortly in the federal sector because FLRA precedents cited above all pre-dated the imposition of the particularized need (PN) standard. The PN standard now requires that any union requesting that kind of data needs to make a more sophisticated argument, especially to President Trump’s appointees. So, we thought we would walk through what that would look like so that advocates on both sides of the table argue and/or administer this thoroughly.
Let’s assume that a union demands that an agency provide it information showing how cash awards were distributed throughout the bargaining unit by race, gender, national origin, age, and disability status. The particularized need standard requires that it explain in writing and with sufficient specificity, why it needed the demographic awards information, the uses to which it would put the information, and the connection between those uses and its own statutory role. Consequently, the union would have to write that it intended to investigate whether the Agency disseminates performance awards in a manner that has a disparate impact on certain classes of employees, thereby discriminating against those employees unlawfully. Furthermore, the union would say, that if the investigation revealed evidence of such discrimination, it would pursue a disparate impact claim against the Agency through the contract grievance procedure or other federal employee appeal process.
Given that most bargaining units are more than a hundred people, the union should also volunteer that it needs the information to determine whether there is a statistically significant pattern of discrimination in the dissemination of performance awards. See our Fedsmill post entitled, HOW TO MEASURE MANAGEMENT UNFAIRNESS for an app that does those the statistical calculations for the union free of charge. It would be wise for a union to cite the NFFE and AFGE cases above as well as the Supreme Court case entitled Griggs v. Duke Power Co. We say that because FLRA seems to like unions being that specific about what they plan to do with the requested information. Otherwise, FLRA tends to think the union request is only “general and conclusory.”
Don’t make the mistake of telling the agency the union wants the information to merely “monitor,” “audit” or “police” the agency. We think that is good enough, but FLRA and the courts definitely do not. You need to link it to some obligation or task the union has.
At that point, the union can expect the agency to respond in several ways. It might say it does not have the information or that it is not reasonably available, but that will be a bogus claim. Federal regulation requires each agency to keep the data on line. The information may be in two separate data files that need to be merged to answer the union, but it is available.
The agency might also ask the union whether it will take the data sanitized so that individual employee names are omitted. Typically, the union should agree to that, but it might want to consult legal counsel to double-check that advice.
The agency might also claim that the union can’t get the information unless some employees have complained to them about discrimination in awards. That is not likely to go far because the court in AFGE Local 1345, 793 F. 2d 1360 (1986) ruled that a union is entitled to information in at least three contexts: 1- as the representative of “potentially aggrieved employees”; 2- as the representative of all unit employees, even those who may not be aggrieved by an action (or even in the face of a large number of unit employees opposed to the union’s efforts); and 3- in its own institutional status as exclusive representative.
Finally, the agency might claim that the union has to show that an actual problem exists before it can get the data, e.g., point to some employees who have suffered discrimination. The outcome of that will depend on whether FLRA concludes that by requiring the existence of a grievance or complaint of unlawful discrimination (or credible information of such discrimination) before the Union can obtain statistical data to analyze, it would unduly constricted the Union’s range of representational activity to the grievance process, at the expense of the Union’s legitimate role in investigating — prior to receiving employee complaints — whether the CBA or federal law is being violated. Hopefully, the case that gets before the President’s FLRA will be such a favorable set of facts for the union that the FLRA twin towers of opposition cannot get in the way.
This is where the NLRB case should be helpful. First, it involved a union demand for information unrelated to a grievance. In fact, its contract did not allow it to grieve civil rights discrimination. The union wanted it to see what bargaining demands it should make in renegotiating its master agreement. A federal sector union could make a bargaining demand that the data be produced annually on several personnel actions. Second, it ruled that such information is presumptively relevant and necessary for the union. The particularized need standard does not recognize presumption, even where the information relates to enforcing anti-discrimination laws. But that does not mean the NLRB’s point should be ignored if a request turns into a litigation fight. If you want to learn more about the case check out the Seyfarth Shaw posting entitled, “The NLRB Bolsters Unions’ Ability to Investigate Discrimination and Pay Equity Concerns through Requests for Information.” If you want to read the case itself, you should be able to find it here.
In the best of situations, the agency responds to the union request not only by providing the information, but also by offering to jointly examine the data and search for any ways to correct problems promptly, if not also retroactively.
NOTE: While we simplified the above information demand the union might give an agency to launch a civil rights inquiry, most often the union would demand the following information on every employee in an electronic spreadsheet : race, gender, national origin, age grouping (e.g., under 40, 40 to 49, 50 to 59, etc.), grade, organizational subunit, annual appraisal score, kind of award, date of last award and more. When these cases go before arbitrators the union needs to show that it looked into whether some variable other than civil rights group status explained the difference in how groups of employees were treated. Unions would be wise to get advice from a competent attorney with civil rights experience to identify all the variables needed for its situation. Furthermore, the union typically should request that each data item be identified for each individual unit employee on a spreadsheet. The union does not need, at least at the outset, to know the employee’s name, just the characteristics of each employee