FEDSMILL’S PARTICULARIZED NEED FORM
While science’s two-decade long, multi-billion dollar search for the Higgs-Boson particle ended in success (and according to some putting man virtually face-to-face with god), the quest for particularized need has proven more challenging than that for labor-management practitioners.. FLRA has had to issue over 80 decisions in its attempt to explain what it is and the courts have had to weigh in nearly a dozen times. So, we thought we would try to help.
Given that FLRA Members Carol Pope and Ernest Dubester issued several “particularized need” decisions over the last few years and that they are back again for a few more years, we are modeling our comments on what they decided three cases, namely, AFGE, 66 FLRA 669 (2012), PASS, 65 FLRA 950 (2011), and AFGE, 64 FLRA 293 (2009),
Below is a form unions could use to request information under the statutory standard. We have inserted excerpts (in italic print) from recent FLRA decisions as examples of what the union did to correctly answer the questions. We also inserted some FEDSMILL.com NOTES.
UNION REQUEST FOR INFORMATION
Described below is the information the union is asking the agency to provide.
NOTE: Be specific. If you are only challenging the content of a promotion vacancy announcement, don’t ask for the entire promotion package. If you want the entire package, then make sure your grievance or bargaining proposals addresses all elements of the package.
Why does the union want this information?
“to assess whether the Respondent acted properly in placing the grievant on home leave.” (See 66 FLRA 669)
“to determine whether there was a legitimate operational need for the Respondent’s proposed change to the parties’ agreement.” (See 64 FLRA 293)
“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 63 FLRA 515)
How will the union use this information?
“to assess its pending grievance alleging violations of specific provisions of the CBA.” (See 66 FLRA 669)
What is the connection between how the union will use the information and its representational responsibilities?
“to fulfill its representational duties because it would permit the Union to determine the Respondent’s reasons for placing the grievant under investigation and then on home duty, and to assess whether the Respondent followed its policies in doing so. The Union further explained that the information was necessary for it to fulfill its representational duties because it would permit the Union to assess its allegations in the pending grievance.” (See 66 FLRA 669)
NOTE: FLRA recognizes at least several representational activities for which the union can request information, namely, to police or administer a contract, to process a grievance, ULP or arbitration action, to reply to agency actions, to bargain agreements. In contrast, it frowns on requests made solely to monitor or audit agency actions.
What geographic area should the information be drawn from?
NOTE: This merely requires that you identify the offices or other locations the information from which you want the information, e.g., local, regional, national, etc. The narrower the area the better, but the union is allowed to get data from whatever area is relevant to the grievance or bargaining claim it is making.
What time period does the request cover?
NOTE: This merely requires that you identify the time periods from which you want the information, e.g., the last year, since the current contract was implemented, etc. The narrower the period the better, but the union is allowed to get data from whatever time period is relevant to the grievance or bargaining claim it is making.
Date of this request:
Union representative in this matter:
Once you have submitted the form, the agency is obligated to respond timely. Failing to do so is a ULP even if the union is not entitled to the information. If it claims you were not specific enough or it does not understand, respond as best you can. You cannot ignore that request unless it gets to be absurd. The agency cannot ask that you name a grievant or potential grievant involved in the information demand, withhold proprietary information, ask you to reveal your strategy, or demand details that you have no way of knowing until you see the documents. If the agency offers to let you look through its own copy of the information to narrow your request, take the offer.
If you are still confused, check out the FLRA General Counsel’s advice memo on particularized need and the form she recommends. The difference between hers and ours is that ours addresses the five questions the FLRA will look at while hers does not encourage that kind of detail.