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).