22:0131(12)NG - NTEU and DOE -- 1986 FLRAdec NG
[ v22 p131 ]
22:0131(12)NG
The decision of the Authority follows:
22 FLRA No. 12
NATIONAL TREASURY EMPLOYEES
UNION
Union
and
DEPARTMENT OF ENERGY
Agency
Case No. 0-NG-956
DECISION AND ORDER ON NEGOTIABILITY ISSUE
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute), and concerns the
negotiability of the following underlined portion of the Union proposal.
/1/
Article 22, Reduction in Force, Part III(E) The employer will
prepare a report on each RIF, as soon as practicable, with the
following information:
(a) numbers and series of employees reassigned
(b) numbers and series of employees downgraded
(c) numbers and series of employees separated
(d) six months after a RIF, the numbers and series of employees
rehired by the Employer
(e) cost of the RIF, such as administrative costs, severance
pay, and pay retention.
II. Positions of the Parties
The Agency contends that the proposal is nonnegotiable because
information as to the administrative costs of a reduction-in-force (RIF)
does not concern the conditions of employment of unit employees. The
Union argues that such information is necessary to the performance of
its representational responsibilities and, thus, is directly related to
matters affecting unit employees' conditions of employment.
III. Analysis and Conclusion
The disputed portion of the proposal, as interpreted by the Union,
would require the Agency to provide the Union with information regarding
the costs of each reduction-in-force affecting unit employees,
particularly administrative costs such as severance pay. The Agency
contends that information on the costs of a RIF does not concern the
conditions of employment of unit employees and that the relationship of
such costs to conditions of employment is wholly "speculative." The
Union argues that such information is necessary to its representation of
employees who are challenging RIF actions through statutory appeals
procedures or through the negotiated grievance procedure. The Union
also claims that the information is necessary to future negotiation of
contract provisions relating to reduction-in-force and, thus, directly
relates to the conditions of employment of unit employees.
The basic scope of the duty to bargain under the Statute extends to
matters affecting the working conditions of employees in a unit of
exclusive recognition. See, for example, National Treasury Employees
Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA
769, 771 (1980), aff'd sub nom. National Treasury Employees Union v.
Federal Labor Relations Authority, 691 F.2d 553 (D.C. Cir. 1982). The
Authority has consistently held that matters pertaining to a RIF concern
the conditions of employment of affected employees. See, for example,
Department of the Treasury, U.S. Customs Service and National Treasury
Employees Union and All NTEU Customs Chapters, 19 FLRA No. 128 (1985);
Federal Trade Commission and American Federation of Government
Employees, Local 2211, AFL-CIO, 15 FLRA 994 (1984); American Federation
of Government Employees, AFL-CIO, National Council of EEOC Locals and
Equal Employment Opportunity Commission, 10 FLRA 3, 5-6 (1982) (Union
Proposal 2), aff'd as to other matters sub nom. Equal Employment
Opportunity Commission v. Federal Labor Relations Authority, 744 F.2d
842 (D.C. Cir. 1984), cert. dismissed, 54 U.S. Law Week 4408 (April 29,
1986). Thus, information concerning the costs of a RIF constitutes a
matter affecting the conditions of employment of unit employees. The
question of whether information as to the costs of a RIF concerns
conditions of employment, however, is not dispositive of the relevance
of that information but, rather, addresses only the nature of the
subject matter involved. As a matter pertaining to the conditions of
employment of unit employees, the Union's proposal is within the duty to
bargain under the Statute notwithstanding the fact that the information
provided for in the proposal might in part pertain to nonunit employees.
See Association of Civilian Technicians, Pennsylvania State Council and
Pennsylvania Army and Air National Guard, 14 FLRA 38, 39 (1984);
National Treasury Employees Union and Internal Revenue Service, 7 FLRA
275, 284 (1981).
An agency is required under section 7114(b)(4) of the Statute to
provide a union with information which is relevant and necessary to the
performance of its representational activities. United States
Environmental Protection Agency, Health Effects Research Laboratory,
Cincinnati, Ohio and National Federation of Federal Employees, Local
801, 16 FLRA 52, 54 (1984). A determination as to whether the
information sought is relevant and necessary is made on a case-by-case
basis. National Treasury Employees Union, Chapter 91 and Department of
the Treasury, Internal Revenue Service, Southwest Region, 17 FLRA 534,
536 (1985). The Union's proposal certainly includes a requirement that
the Agency provide it with relevant and necessary information concerning
the administrative costs of a reduction-in-force. The Union
demonstrates on the record how such information would relate to the
processing of employee grievances and the negotiation in the future of
contract provisions concerning reduction-in-force. /2/ But the proposal
is more broadly worded than that. It would also require the Agency to
disclose information regardless of whether a case-by-case analysis would
show that it is relevant and necessary to the Union's performance of its
representational function. That fact does not render the proposal
nonnegotiable.
Section 7114(b)(4) is a statutory "floor" and not a "ceiling." The
language and the legislative history of that provision do not indicate
that Congress intended to prohibit an agency from providing a union with
information other than that which is relevant and necessary. Rather,
Congress meant that provision to establish the minimum information which
must be disclosed to a union. /3/ Thus, nothing in section 7114(b)(4)
prevents a union from negotiating with an agency for the disclosure of
information concerning the conditions of employment of unit employees
beyond what it is entitled to under the Statute. Of course, the
disclosure of such information must otherwise be consistent with law.
See Army and Air Force Exchange Service (AAFES), Fort Carson, Colorado
and American Federation of Government Employees, AFL-CIO, Local 1345, 17
FLRA 624, 627 (1985).
For the foregoing reasons, the Union's proposal is consistent with
law and within the Agency's duty to bargain. It is distinguishable from
National Treasury Employees Union, Chapter 91, cited above, because the
proposal in that case concerned information which did not relate to the
conditions of employment of unit employees.
IV. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency shall upon request (or as
otherwise agreed to by the parties) bargain on the Union's proposal.
/4/
Issued, Washington, D.C., June 12, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) The Union has withdrawn from this appeal two proposals concerning
performance appraisal and one proposal concerning reduction-in-force.
Union Statement of Position at 1. These proposals will not be
considered further in this case.
(2) Union Response to Agency Statement of Position at 2-3.
(3) See H.R. Rep. No. 95-1403, 95th Cong., 2nd Sess. 48 (1978).
(4) In deciding that the proposal is within the duty to bargain, the
Authority expresses no opinion as to the merits of the proposal.