By William Wiley, February 15, 2017
Questions, we get questions. Not a lot of questions are about union rights and corresponding management obligations, and this one is a good one:
From an inquiring mind among the FELTG newsletter readership:
Dear FELTG brilliant people. Here’s an LR Hypothetical for you:
The union makes an information request for certain emails from a recent former employee. The union says that it needs the emails because it needs to find out whether to file a grievance about the former employee putting a current bargaining unit employee in a reprisal environment. The emails allegedly contain derogatory opinions expressed by the former employee, about the current employee, to the current employee’s clients. Management says it was aware of the emails, and that it would release the emails if it still had them. However, the only component of the agency with access to the emails is the Information Technology staff, and the attorneys advising IT act like the emails are super-secret. Before IT will give management access to the emails so that management can respond to the union, the IT staff and its advisors want the union to demonstrate a “particularized need” for the information. How would you rule about the establishment of a particularized need?
And now our FELTG fantastic response:
Dear Desperate Reader:
Thanks for your hypothetical question. As usual, we start with the law:
5 USC Section 7114:
(b) The duty of an agency and a union to negotiate in good faith under subsection (a) of this section shall include the obligation —
(4) in the case of an agency, to furnish to the union involved, or its authorized representative, upon request and, to the extent not prohibited by law, data –
- Which is normally maintained by the agency in the regular course of business. It is management’s burden to establish that the material is not normally maintained or that its production would be unreasonably burdensome.
If you don’t have access to the emails, the information is not “normally maintained.” Therefore, you don’t have to provide it. See Navy and AFGE, 26 FLRA 324 (1987) (If the data or information does not exist, it need not be produced, but management should inform the union of that fact).
However, if the data exists anywhere within the agency (e.g., the bowels of IT), then you must cough it up if there is a particularized need. A union demonstrates a particularized need, in general, if it tells the agency:
- Why it wants the information, and
- What it intends to do with the information.
And the information is “within the scope of collective bargaining”:
- Contract administration
- Grievance and ULP processing
- Employee representation
FAA, 55 FLRA 254 (1999)
The union must justify a request as to:
- Time frame (e.g., “for the past 4 years”)
U.S. Customs, New Orleans, 53 FLRA 789 (1997)
In your case, the union has said that it wants the emails to consider whether to file a grievance relative to a particular employee whose rights might have been violated in a particular way. Can’t get much more particular than that.
If you don’t produce the emails, I’d say you have yourself a nice little ULP. But what do we know? If you deny the union’s request and they file a ULP, by the time it works its way through the system, Congress may have outlawed unions in federal agencies anyway.
Hope this helps. Take care- Wiley@FELTG.com