National Treasury Employees Union and Department of Energy (Authority decision, June 12, 1986)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority’s order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The union proposed a report about employees affected by a reduction in force. The Energy Department argued that the report exceeded information it was statutorily required to provide. The Authority held that the statutory disclosure rule sets a minimum and permits bargaining for additional lawful information about unit working conditions. It ordered bargaining.

Decision snapshot

• Authority: 5 U.S.C. § 7114(b)(4).
• Outcome: Agency ordered to bargain over reduction in force report.
• Key point: The statutory information duty is a floor for disclosure, not a cap on negotiated reporting.

Full text (FLRA public release)

[ 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.