EDITORIAL – WHAT HAPPENS AT FLRA HAPPY HOURS
How do we know that FLRA is having regular happy hours during the day? Well, we don’t, but something like that must be happening based on the quality of its particularized need decisions. They are a mess—and that is the sugarcoated characterization. While legalists are having a grand old time waxing eloquently about the concept, actual practitioners struggle mightily to unscramble the case law jumble they have given us. By one count, FLRA and its ALJ’s have had to issue over 55 particularized decisions since January 1, 2000, which affirms a state of extreme conceptual turmoil. Office-wide FLRA inebriation is not the only possible explanation for this; it is just far more polite than others. But, enough of cheap accusations that reveal more about our shortcomings than FLRA’s; let’s look at facts.
Fact #1— In the Authority’s defense, it did not start this mess. While it had toyed with the phrase “particularized need” in some decisions, we can thank Circuit Court Judge Harry Edwards for putting us on the path to today’s inscrutable paradigm. In 1992, he remanded an Authority decision after taking over 700 words to explain what the word “necessary” meant in Section 7114(b)(4). Edward’s decision was followed by more circuit court verdicts that generally only criticized the Authority’s thinking without offering a unified viable concept of its own.
Fact #2—Since the courts forced FLRA to bear us a particularized need doctrine meeting their conceptions rather than practitioners’ needs, the FLRA has switched political party control four times and had ten different sitting members writing its decisions. That doomed any chance of a cohesive, straight-line body of case law evolving. Consequently, Members Beck and Dubester are in no way responsible for the mess they inherited and Chairman Pope fought harder than any of her peers over the last 11 years against further perversion of the concept.
Fact #3— But Pope, Beck and Dubester are not the first leaders to walk into a terrible situation. It happens all the time and it is their job to get us out of it. But so far, they have done little to help—very little. They have issued several decisions involving particularized need without making the concept more useable.
Fact #4— On November 30, 2009 they issued 64 FLRA 293, one of four opportunities this trio has had to start fixing the particularized need concept, but arguably they have only made the situation worse. Like those who live in the polar regions of our planet and have many different words for snow, FLRA has now parsed the particularized need concept into over a half-dozen keyword elements. Take a look at excerpts from just this case and the underlined critical terms practitioners must deal with.
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 under the Statute.
The scope of a request encompasses not only the type of the information requested, but also the “temporal and geographic” aspects of the request
Apparently, unions must describe with specificity the temporal and geographic aspects of why it needs the information, which includes explaining the uses to which it will be put and how those uses connect to its responsibilities. Perhaps that would not be a challenge if all practitioners were law school graduates who found even such concepts as the “rule against perpetuities” easy to master. But we are not—and that is a very important fact. We need a concept that helps us generate amiable settlements and operate government efficiently and effectively. This is not admiralty law; it is about the law of the shop.
Sadly, all those vague, undefined terms are only the beginning of the mess the current FLRA has endorsed.
Fact #5— Current particularized need case law is riddled with contradictions. Here come the examples.
A. In 64 FLRA 972 the union asked for information “to help” it “prepare for . . . negotiations” only to be told that did not explain why the union needed the information, how it would be used in negotiations, nor even which negotiation opportunity it was referring to. However, FLRA said nothing to align that with this pre-existing precedent, “Nothing in section 7114(b)(4)(B) requires that a union prove ‘the existence or requirement of negotiations’ (Exceptions at 21), in the present tense, to obtain information within the scope of collective bargaining.” (55 FLRA 254) So, which is it, FLRA? Do we have to prove an existing right to negotiate at the time of our request or can we anticipate future negotiation opportunities?
B. In 63 FLRA 515 the Authority ruled that a request for information to “police an agreement” satisfied the law, “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.” Great ruling, from the FEDSMILL perspective. It, along with a similar ruling in 60 FLRA 413 appeared to have overturned the precedents of 52 FLRA 1000 which held that information needed to “determine whether any employee or [u]nion rights have been violated and[,] if they have [ ]” been violated, to “take appropriate remedial action through [the] negotiated grievance procedures[ ]” was insufficient to establish particularized need as well as 52 FLRA 1133 which held that requesting information to “monitor compliance with the parties’ national agreement, and to pursue grievances” was insufficient where it did not explain why the union requested the particular information that it requested and the particular uses to which the union would put it if the information were disclosed.
But in the 64 FLRA 972 ruling a few months later it held that the union need to “prepare” the grievance was not enough of a particularized need? “However, when the Union subsequently filed the national grievance, it alleged that it needed the information in order to ‘prepare’ the grievance. Id. at 32. Nevertheless, neither the original information request nor the grievance explained why the Union needed the particular items that it was seeking or the particular uses to which the Union would put those items in processing the grievance.”
Why is it acceptable to request information to help decide whether to invoke arbitration and to police an agreement, but somehow flawed to ask for it to prepare a grievance or monitor an agreement?
C. One of the long-time limits on management’s right to demand a particularized need is that it cannot require the union to reveal too much information, e.g., “However, a request need not be so specific as, for example, to require a union to reveal its strategies…See, for example, NLRB v. FLRA, 952 F.2d at 530 (“Necessarily, the bargainers are not obliged to reveal their strategies[.]”); American Federation of Government Employees, AFL-CIO v. FLRA, 811 F.2d 769, 774 (2d Cir. 1987).” (See 50 FLRA 661) If that is still good law, then why did FLRA demand that the union in the following case reveal strategy, “In response, the Charging Party requested information showing “the normal time when each employee within each hearing office takes his/her breaks and lunch for each workday.” (64 FLRA 293). According to the union, the information was necessary to assess whether the management’s proposed change was based on legitimate operational needs and to show that “office coverage, if proven needed, could be adjusted in many other ways.” FLRA endorsed the need for the union to reveal its strategy of first opposing the change in negotiations and in the alternative preparing options. How is that not demanding too much about what the union plans?
D. And here is another apparently deliberately crafted sentence from 64 FLRA 293 which leaves practitioners befuddled, “However, as the GC points out, ‘whether requested information would accomplish a union’s purpose is not determinative of whether it is necessary within the meaning of the Statute.’” Really? Management cannot consider whether a union request is reasonably linked to its purpose? Then why are we making “connections” with “specificity” between “uses” that align with the “temporal and geographic aspects” of the “scope”—or something like that? Did Pope, Beck and Dubester really mean that management cannot rely on the knowledge that even if the union used the requested information in a grievance or negotiations it would not be persuaded to agree with the union? Whatever FLRA meant, it needs to say it more clearly.
E. FLRA and judicial precedent have held for a while that the union cannot be expected to know the value requested documents might have before they request them. FLRA has said, “Moreover, the degree of specificity required of a union must take into account the fact that, in many cases, including the one now before us, a union will not be aware of the contents of a requested document.” (50 FLRA 661) A circuit court put it this way, “The Authority may not, as it clearly recognizes,…apply the particularized need test to ask unions the impossible–to describe documents they have not seen–or to require unions to reveal so much about their need for the information that employers will enjoy an unfair advantage at arbitration.” (144 F.3d 85) However, the current members recently denied a request saying, “As discussed above, the Union asserted, without elaboration, that it wanted the information in order to understand the survey process. The Union did not explain how it would use the information in this regard, or how any use of the information related to any representational activities.” (64 FLRA 972) If the union claims not to understand the process and wants documents to do so, how can the Authority require it to explain how information therein relates to a representational responsibility?
Do those sound like the thoughts and writings of sober people to you?
Fact #6— The current particularized need concept is not just unworkable for practitioners, but it has added an element of Las Vegas to the labor relations arena. For example, if a manager denies a union request for information in connection with pending midterm negotiations, he or she runs a substantial risk of being wrong and the price of that error being a high cost status quo ante order. Most battle-hardened managers shy away from the risk, but others cannot resist the excitement of the gamble. On the other side of the table, if the union refuses to bargain because management has denied it information critical to making its case at the FSIP or even fully understanding the bargaining issue, that also is a huge gamble. Their choice is to bargain in the dark or endure a unilaterally implemented change while awaiting the litigation outcome. Neither side should have to operate under those risks. Neither has anything to do with efficient and effective government nor promoting amiability.
So, let’s all raise our glasses in a toast to better days ahead. After all, how much worse can it get?