National Labor, Relations Board and General Counsel, of the, National Labor Relations Board (Agency) and National Labor Relations Board Professional Association (Union)
[ v60 p576 ]
60 FLRA No. 115
NATIONAL LABOR RELATIONS BOARD
NATIONAL LABOR RELATIONS BOARD
January 14, 2005
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Jerome H. Ross filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.
The Arbitrator found that the Agency violated the parties' agreements in its administration of a "details" program, and also violated the agreements and the Statute by denying the Union's request for certain information. For the following reasons, we find the challenged portions of the award deficient and set those portions aside.
II. Background and Arbitrator's Award
The parties negotiated a program that allows employees from Agency headquarters to be detailed to work temporarily in Agency field offices selected by management. When the Agency issued a memorandum informing employees of the field offices that were available to accept details for fiscal year (FY) 2003 and soliciting applications (the solicitation memo), the Union requested that the Agency provide certain information regarding staffing and workload in the field offices. [n2] The Union explained that it was requesting this information in connection with an existing grievance and potential future grievances concerning the solicitation memo. The Agency denied the request, asserting that the Union failed to articulate a particularized need for the information. In response, the Union provided a more detailed explanation as to why it was requesting the information, stating that certain items are
required to determine the staffing and case-processing levels and needs of each field office, relative to each other and to historical staffing and case-processing patterns. Such information will be used to determine if management complied with Sections 28.2 and 28.3 of the parties' collective bargaining agreements,[ [n3] ] by comparing offices' relative staffing and case-processing needs to their inclusion or exclusion in management's details solicitation to determine if the selection of the field office details set forth in management's details solicitation was in fact appropriately based upon office staffing and workload needs, or instead upon some other, inappropriate, basis.
Exceptions, Attachments, Jt. Ex. 7 at 1. The Union explained that, for the same reasons, it needed the [ v60 p577 ] requested items concerning an Agency program that transfers work between offices. See id. at 1-2.
The Agency again denied the request, stating that the Union had "not demonstrated how this information would be useful for representational purposes" and failed to "establish or describe any nexus between the information requested and any contractual requirement." Exceptions, Attachments, Jt. Ex. 8 at 1. The Agency also stated that management has the discretion to determine which field offices are available for details and that the Agency had complied with the parties' agreements, by designating 13 offices available for details in accordance with the contractually-mandated minimum of 10 offices.
The Union filed a grievance alleging that the Agency violated the Statute and the agreements by failing to provide the requested information, and filed an additional grievance alleging that the Agency violated the agreements by denying details to four employees who had requested details to field offices that were not listed in the solicitation memo. The grievances were unresolved and were submitted to arbitration, where the Arbitrator framed the issues as follows:
Whether the Agency violated Section 28.2(c) and (d) in implementing the Exchange Program for FY 2003; and if so, what is the appropriate remedy?
Whether the Agency violated Section 28.2(c) and (d) when it denied the requests of [the four employees] who sought details to field offices that were not designated by Operations-Management for headquarters details for FY 2003; and if so, what is the appropriate remedy?
Whether the Agency violated the Agreements and/or committed an unfair labor practice when it failed to provide information requested by the [Union] in order to determine if a violation of Section 28.2 had occurred; and if so, what is the appropriate remedy?
Award at 8.
The Arbitrator rejected the Agency's assertion that management is permitted to consider costs when determining which field offices are "able to accept" detailed employees. Id. at 20-21. The Arbitrator determined that the parties' agreements are intended to permit the Agency to consider only staffing, workload, and the presence of adequate supervision in determining which offices are able to accept details. The Arbitrator found that the Agency failed to follow the agreements' procedures, and he directed the Agency to: issue a new solicitation for FY 2004, listing the field offices able to accept details in accordance with the above criteria; comply with the contractual procedures in the future; and grant the four employees' details to the offices that they originally requested.
With regard to the Union's information request, the Arbitrator found that the Union articulated a particularized need for the information and that the Agency failed to raise a countervailing anti-disclosure interest. In the latter connection, the Arbitrator determined that, "[r]ather than responding substantively in any detail to the information request, the Agency presumed to prejudge the merits of the grievances in stating that the designation of offices for exchange details was within the discretion of Operations-Management." Id. at 22. Accordingly, the Arbitrator concluded that the Agency violated Section 10.8 of the parties' agreements and § 7114(b)(4)(B) of the Statute, and he directed the Agency to post a notice. [n4]
III. Positions of the Parties
A. Agency Exceptions
The Agency argues that the award affects management's right to assign employees under § 7106(a)(2)(A) of the Statute and the right to assign work under § 7106(a)(2)(B) of the Statute. Specifically, the Agency contends that the award prohibits management from considering any factors other than staffing, workload and adequacy of supervision in determining which field offices are available for details. In addition, the Agency [ v60 p578 ] asserts that the order to grant the four employees details to their chosen offices allows the employees, rather than management, to determine where they will be detailed. Further, the Agency contends that Section 28.2(c) of the agreements was not negotiated under § 7106(b) of the Statute and that, although Section 28.2(d) was negotiated under § 7106(b)(2), the Arbitrator's interpretation of that subsection "transformed" it into a provision that is "[o]utside the [s]cope" of § 7106(b). Exceptions at 12.
The Agency also argues that the Arbitrator erred by finding that the Union established a particularized need for the requested information. In this regard, the Agency asserts that the Arbitrator "fail[ed] to explain why 5 years' worth of staffing and workload information was needed -- especially since FY 2003 was the first year in which" the pertinent contract provisions were in effect. Id. at 17. The Agency also asserts that "the Arbitrator's rationale -- that the information sought was needed to determine the merits of a grievance that alleged a failure to provide information -- is circuitous[.]" Id. at 17. In particular, because the grievance alleging failure to provide information had not and could not have been filed at the time of the information request, the Agency claims that the Arbitrator's finding is incorrect. Thus, the Agency requests that the Authority set aside the portion of the award directing the Agency to post a notice.
B. Union Opposition
The Union contends that the award does not affect management's rights because the award does not concern "what work was to be performed, the length of details, or the qualifications needed to perform the work, but only addresse[s] where the employees selected by management would be performing their work[.]" Opp'n at 15 (emphases in original). In this connection, according to the Union, the Agency has neither argued that detailed employees "will be performing duties other than those substantially similar to the duties normally assigned" to them nor claimed that a relationship exists between job location and job duties. Id. at 13. Further, the Union contends that, to the extent the award affects management's rights, Section 28.2 was negotiated pursuant to § 7106(b)(2) and/or (b)(3) of the Statute, and the award reconstructs what management would have done if it had complied with that Section. Finally, the Union contends that the Arbitrator did not err by finding that the Agency violated the Statute with regard to the denial of the information request.
IV. Analysis and Conclusions
The Agency argues that the award is contrary to law in various respects. The Authority reviews questions of law de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.
A. The challenged portion of the award concerning administration of the details program is inconsistent with management's right to assign employees. [n5]
Where an agency asserts that an arbitrator's award violates management's rights under § 7106 of the Statute, the Authority first determines whether the award affects management's rights. See United States Small Bus. Admin., 55 FLRA 179, 184 (1999). If the award affects management's rights, then the Authority applies the two-prong test established in the Authority's decision in United States Dep't of the Treasury, Bureau of Engraving & Printing, Wash., D.C., 53 FLRA 146 (1997) (BEP). Under prong I of BEP, the Authority examines whether the award provides a remedy for a violation of either an applicable law, within the meaning of § 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. Id. at 153. If it does, then under prong II of BEP, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if management had not violated the law or contractual provision at issue. Id. at 154.
1. Effect on management's right
Management's right to assign employees under § 7106(a)(2)(A) of the Statute encompasses permanent as well as temporary assignments, including details. See United States Dep't of the Navy, Phila. Naval Shipyard, Phila., Pa., 51 FLRA 1777, 1782 (1996) (Phila. Naval Shipyard). In addition, proposals that require management to employ people in certain positions, regardless of [ v60 p579 ] whether vacancies are available or whether management wishes to fill any vacancies that are available, affect the right to assign employees. See AFGE, Local 1923, 44 FLRA 1405, 1465-66 (1992). Consequently, proposals that require an agency to place an employee into a vacant position at the employee's election, without regard to whether the agency intends to fill that position, affect the right to assign employees. See NTEU, 43 FLRA 1442, 1458 (1992), remanded as to other matters sub nom., NTEU v. FLRA, 30 F.3d 1510 (D.C. Cir. 1994). Further, proposals that require management to assign an employee to the employee's choice of work locations "if at all possible" affect the right to assign employees. NTEU, 47 FLRA 370, 391 (1993), rev'd in part on other grounds sub nom., United States Nuclear Regulatory Comm'n v. FLRA, 25 F.3d 229 (4th Cir. 1994).
The award directs the Agency to temporarily assign the four grievants to positions at their chosen work locations -- and to make all Agency locations meeting certain criteria available for future detail applicants --regardless of whether vacant positions are available, or whether management wishes to fill any vacancies that are available, at those locations. This supports a conclusion that the award affects management's right to assign employees. See NTEU, 43 FLRA at 1458.
The Union claims that the award does not affect the right to assign employees because it involves only the location where employees will perform duties substantially similar to their current duties. However, the Union does not dispute that this case involves details, and as discussed above, the Authority expressly has held that the right to detail employees is encompassed within the right to assign employees. See Phila. Naval Shipyard, 51 FLRA at 1782. Further, the Authority has stated that a detail is a "temporary assignment to a different position for a specified period when the employee is expected to return to his or her regular duties at the end of the assignment." [n6] United States Border Patrol Livermore Sector, Dublin, Cal., 58 FLRA 231, 231 (2002) (Chairman Cabaniss concurring and Member Pope dissenting on other grounds) (citing Office of Personnel Management Guide to Processing Personnel Actions 14-3 (1998)). Thus, we reject the Union's claim.
For the foregoing reasons, we find that the challenged portion of the award concerning administration of the details program affects management's right to assign employees.
Under the first prong of the BEP analysis, it is necessary to determine whether the award provides a remedy for a violation of either an applicable law, within the meaning of § 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. 53 FLRA at 153. There is no assertion that the Arbitrator was enforcing an applicable law or a provision negotiated under § 7106(b)(1). Instead, the Union argues that the Arbitrator was enforcing a procedure under § 7106(b)(2) and/or an appropriate arrangement under § 7106(b)(3) of the Statute.
With regard to § 7106(b)(2), the Authority has found that a proposal requiring management to reassign an employee to a site designated by the employee does not constitute a procedure. See NTEU, 47 FLRA at 394. Section 28.2 of the parties' agreements, as interpreted by the Arbitrator, requires management to assign employees to the sites chosen by the employees. Thus, Section 28.2, as interpreted and enforced by the Arbitrator, does not constitute a negotiable procedure.
With regard to § 7106(b)(3), in determining whether a contract provision constitutes an appropriate arrangement, the Authority first determines whether the provision is an arrangement. See NTEU, 59 FLRA 978, 981 (2004). An arrangement must seek to mitigate adverse effects flowing from the exercise of a management right. See Ass'n of Civilian Technicians, Inc., R.I. Chapter, 55 FLRA 420, 426 (1999) (ACT). The claimed arrangement must also be sufficiently "tailored" to compensate or benefit employees suffering adverse effects attributable to the exercise of such right. Id. In this regard, § 7106(b)(3) brings within the duty to bargain proposals and provisions that provide "balm" to be administered "only to hurts arising from" the exercise of management rights. Id. (citation omitted). If the provision is an arrangement, then the Authority determines whether it is appropriate, or whether it is inappropriate because it excessively interferes with the relevant management right. [n7] See NTEU, 59 FLRA at 981. In doing so, the Authority weighs the benefits afforded to employees under the provision against the intrusion on the exercise of management's rights. See id. [ v60 p580 ]
A contract provision that addresses "an adverse effect that result[s] from denial of a negotiated benefit, not the exercise of a management right[,]" does not constitute an arrangement. ACT, 55 FLRA at 426. Additionally, the Authority has found it "contrary to common sense to view employees as adversely affected by time spent on [temporary duty] assignments for which they have volunteered[,]" and held that a proposal addressing such voluntary assignments was not sufficiently tailored to constitute an arrangement. AFGE, Council of Locals No. 163, 51 FLRA 1504, 1515 (1996) (Member Wasserman dissenting on other grounds).
Section 28.2, as interpreted by the Arbitrator, addresses potential, allegedly "adverse," effects (voluntary details being limited to areas with few cultural amenities) that result from the denial of a negotiated benefit (the opportunity to perform voluntary details in a wide range of geographic areas without regard to cost). Further, Section 28.2 applies to detail assignments for which employees volunteer. Thus, we find that Section 28.2, as interpreted and enforced by the Arbitrator, does not constitute an arrangement under § 7106(b)(3) of the Statute. See ACT, 55 FLRA at 426; AFGE, Council of Locals No. 163, 51 FLRA at 1514. Accordingly, we do not address whether the alleged arrangement would be "appropriate."
Based on the foregoing, the award fails to satisfy prong I of BEP. Accordingly, without addressing prong II, we set aside, as contrary to the right to assign employees, the challenged portion of the award concerning administration of the details program. [n8]
B. The portion of the award concerning the failure to provide data is contrary to § 7114(b)(4) of the Statute.
When a grievance under § 7121 of the Statute involves an alleged unfair labor practice (ULP), the arbitrator must apply the same standards and burdens that would be applied by an administrative law judge in a ULP proceeding under § 7118 of the Statute. AFGE, Local 3529, 57 FLRA 464, 465 (2001). Thus, in an arbitration case involving an alleged ULP, the union bears the burden of proving the elements of the unfair labor practice claim by a preponderance of the evidence. Id. at 466.
Under § 7114(b)(4) of the Statute, an agency must furnish a union requested information if the information is "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining[.]" 5 U.S.C. § 7114(b)(4)(B). To demonstrate that requested information is "necessary," the union "must establish a particularized need for the information by articulating, with specificity, why it needs the requested information, including the uses to which the union will put the information, and the connection between those uses and the union's representational responsibilities under the Statute." IRS, Wash., D.C., 50 FLRA 661, 669 (1995). The union's responsibility for articulating its interests in the requested information requires more than a conclusory assertion and must permit an agency to make a reasoned judgment as to whether the disclosure of the information is required under the Statute. Id. at 670. Further, the union is required to explain the scope of its request, including, as relevant here, the temporal aspects of its request. United States Customs Serv., S. Cent. Region, New Orleans Dist., New Orleans, La., 53 FLRA 789, 799 (1997) (Customs Serv.). Thus, if a union requests information that covers a multiple-year period and fails to articulate with requisite specificity why it needs information relating to that extended period, then the Authority will not find a violation of the Statute for failure to provide the information. See United States DOL, Wash., D.C., 51 FLRA 462, 476-77 (1995) (DOL).
Although the Union's stated need for the requested information involved whether the 2003 details solicitation complied with the parties' agreements, the Union requested extensive information retroactive to 1998. The Union's only explanation for why it was seeking such information was that it needed the information in order "to determine the staffing and case-processing levels and needs of each field office, relative to each other and to historical staffing and case-processing patterns." Opp'n, Attachments, Jt. Ex. 7 at 1 (emphasis added).
The Union did not articulate why 5 years' worth of information -- as opposed to a lesser or greater time period -- was necessary in order for the Union "to determine if the selection of the field office details . . . was in fact appropriately based upon office staffing and workload needs, or instead upon some other, inappropriate, basis." Jt. Ex. 7 at 1. Although the Arbitrator found that an exchange program was in existence since at least 1989, the Union never explained the significance of information for the years 1998 to 2003 and why that information was required. In this regard, the Union did not explain how the workload and staffing information for all offices in the five years prior to the FY 2003 solicitation was necessary to determine whether the Agency had improperly designated the offices that would participate in the FY 2003 exchange program.
The Authority has previously found that the mere existence of information spanning several years is insufficient to establish the necessity for information spanning those same years. See, e.g., Customs Serv., 53 FLRA at 799 (1997) (no need established for data covering a four-year period); United States Dep't of [ v60 p581 ] Labor, Washington, D.C., 51 FLRA 462 (1995) (DOL) (union failed to establish particularized need for information covering a five-year period). The Authority also has recognized, in such cases, that while some of a union's requested information may be necessary in order for representational purposes, a union seeking to establish a particularized need must show that all of the requested information is necessary. See, e.g., DOL, 41 FLRA at 476. See also United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Forrest City, Ark., 57 FLRA 808, 814 (2002) (Member Pope dissenting in part).
Furthermore, and consistent with Authority case law, a union must establish a particularized need for requested information before an agency is required to come forward with countervailing interests that would militate against the furnishing of such information. In United States Dep't of the Army Hdqtrs., Fort Monroe, Va., 57 FLRA 793, 796 (2002) (Member Pope dissenting in part), for example, the Authority found that an administrative law judge properly considered a respondent's countervailing anti-disclosure interests after determining that the union had established a particularized need for the information. Citing IRS, Wash., D.C., the Authority stated that "an unfair labor practice will be found if a union has established a particularized need . . . for the requested information and either: (1) the agency has not established a countervailing interest; or (2) the agency has established such an interest but it does not outweigh the union's demonstration of particularized need." 50 FLRA at 671. Thus, in assessing whether an agency has unlawfully refused to furnish information, the proper inquiry is, first, whether a union has established a particularized need for the requested information. That showing is not contingent on the presence or absence of countervailing anti-disclosure interests.
In this case, for the reasons discussed above, we find that the Union failed to establish a particularized need for the requested information. Consequently, the Arbitrator erred, as a matter of law, in finding that the Agency was required to furnish the information and we set aside that portion of the Arbitrator's award. [n9]
The challenged portion of the award concerning administration of the details program, and the Arbitrator's finding of a § 7114(b)(4) violation and accompanying order to post a notice, are set aside.
Concurring opinion of Chairman Cabaniss:
In addition to my agreement with the majority opinion, I write separately to discuss an aspect of this case that, while not addressed by the parties, has implications for information requests subject to § 7114(b)(4) of our Statute.
Judicial precedent notes, as a precondition to an exclusive representative making a showing of particularized need under § 7114(b)(4)(B) of our Statute, that the Authority must also examine whether "the union has a grievable complaint covering the information." NLRB v. FLRA, 952 F.2d 523, 532 (D.C. Cir. 1992) (emphasis in original). Or,
"[t]o put it differently, we strongly doubt that information can be `necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining,' if the union seeks to obtain information for purposes not within the scope of collective bargaining."
Dep't of the Air Force, Scott AFB v. FLRA, 956 F.2d 1223, 1225 (D.C. Cir. 1992). There is little if any guidance as to what would constitute a "grievable complaint" or "purposes not within the scope of collective bargaining" in the context of information requests under § 7114(b). At one end of the spectrum it would certainly make sense to not parse this distinction based solely on the question of whether an exclusive representative has a meritorious case. At the other end of the spectrum it would also seem to make sense to find that a matter is not grievable if it falls within the exclusions to negotiated grievance procedures established by § 7121(c). [ v60 p582 ]
I note, however, that the concepts of being "grievable" and "within the scope of collective bargaining" seem to envision a broader analysis that would take into consideration, for example, exclusions negotiated by parties pursuant under § 7121(a)(2) to the scope of matters covered by their negotiated grievance procedure, and whether an action sought by an exclusive representative may or may not comport with our negotiability precedent, much the same way as that negotiability precedent informs our review of arbitration awards under Prong I our test set out in our United States Dep't of the Treasury, Bureau of Engraving & Printing, Wash., D.C. decision (53 FLRA 146 (1997)).
It is not apparent how these considerations should be applied, and even if applied how they would affect the outcome in the present case. Those questions will have to be resolved by future cases, and the parties addressing these considerations where they appear relevant.
Member Carol Waller Pope, dissenting in part:
I agree that the challenged portion of the award concerning administration of the details agreement is contrary to management's right to assign employees. However, for the following three reasons, I disagree with the decision to set aside the finding of § 7114(b)(4)(B) violation and the order to post a notice.
First, I would find that the Union sufficiently explained its need for the requested data. In its second request, the Union stated that it needed to assess "the staffing and case-processing levels and needs of each field office, relative to each other and to historical staffing and case-processing patterns[,]" as well as information concerning inter-office transfer of cases. Exceptions, Attachments, Jt. Ex. 7 at 1. The Union explained that it needed to compare this information with the list of offices in the solicitation memo in order to determine whether the selection of listed offices "was in fact appropriately based upon office staffing and workload needs, or instead upon some other, inappropriate, basis." Id. at 1-2. The Arbitrator found, and it is undisputed, that the parties had details agreements dating back to (at least) 1989, and the previous agreements permitted consideration of "Agency needs" and "staffing considerations" in making determinations regarding details. Award at 2. As a result, it is clear that historical information concerning workload, staffing, and transfer of cases between offices would have assisted the Union in assessing whether the Agency was in fact basing its FY 2003 determination on those factors. In particular, information for a particular field office for previous years compared with information from FY 2003 would have disclosed whether there was a change in workload or staffing that warranted omitting offices that had previously been available for details from the FY 2003 list of available offices. Although the majority would require the Union to explain why it is not requesting information for "a lesser or greater time period[,]" Majority Opinion at 13, I would find that the Union sufficiently explained why five years of information was necessary and was not required to explain why it chose not to request information for a different time period.
Second, I would find that the Agency's argument regarding the scope of the requests is not timely raised. In this connection, the Agency argued before the Arbitrator that the scope of information requested was excessively broad. See Award at 15. However, the Arbitrator found that the responses to the Union: (1) did not "respond substantively in any detail to the information [ v60 p583 ] request[;]" (2) did not "mention an Agency countervailing interest that would warrant denial" of the requests; and (3) "presumed to prejudge the merits of the grievances in stating that the designation of offices for exchange details was within the discretion of Operations-Management." Id. at 22.
The record supports the Arbitrator's findings. See Exceptions, Attachment, Jt. Ex. 8 at 1. There is no dispute that the Agency could have raised its concern regarding the scope of the requests at or near the time of the requests because the Union's first request clearly requested five years' worth of information, see Exceptions, Jt. Ex. 5 at 2-3, and the scope of the information did not change in the Union's second request, see Exceptions, Jt. Ex. 7 at 4-5. As the Agency did not do so, the Agency's argument does not provide a basis for finding that the Union failed to establish a particularized need for the requested information. See, e.g., United States DOJ, Fed. Bureau of Prisons, Fed. Corr. Inst., Forrest City, Ark., 57 FLRA 808, 813 (2002) (Member Pope dissenting in part on other grounds); United States DOJ, INS, N. Region, Twin Cities, Minn., 51 FLRA 1467, 1476 (1996), reconsid. denied, 52 FLRA 1323 (1997), aff'd sub nom., DOJ v. FLRA, 144 F.3d 90 (1998). For the same reason, the precedent cited by the majority is inapposite because, in those cases, the respective agencies made timely arguments regarding the scope of the information requests. See United States Customs Serv., S. Cent. Region, New Orleans Dist., New Orleans, La., 53 FLRA 789, 790, 799 (1997) (in denying request, respondent had argued request was overly broad); United States DOL, Wash., D.C., 51 FLRA 462 (1995) (as noted in original decision in that case, see United States DOL, Wash., D.C., 39 FLRA 531, 533 (1991), respondent had argued request was overly broad).
Third, I would reject as irrelevant the Agency's remaining argument regarding whether the Union had filed a grievance at the time of the information request. There is no requirement that information requested under § 7114(b)(4) of the Statute actually be used in a grievance. See United States DOL, Wash., D.C., 39 FLRA 531, 537 (1991), remanded sub nom. DOL v. FLRA, No. 91-1174 (D.C. Cir. 1992), decision on remand dismissing complaint on other grounds, 51 FLRA 462 (1995). In any event, the Union stated in its requests that it needed the information in connection with "potential" grievances "related to" the solicitation memo. Exceptions, Attachments, Jt. Ex. 5 at 1 & Jt. Ex. 7 at 2 (referring to a "potential grievance" and requesting an extension of time under the parties' agreement in order "to file any grievance related to" the solicitation memo). Although nothing more was needed, the Union ultimately did file grievances related to the solicitation memo.
For the foregoing reasons, I dissent in part.
Footnote # 1 for 60 FLRA No. 115 - Authority's Decision
Footnote # 2 for 60 FLRA No. 115 - Authority's Decision
We note that the Union requested thirteen items. See Exceptions, Attachments, Jt. Ex. 5 at 2-3. The Agency's exceptions address the Union's requests for historical data. See Exceptions at 16-17 (alleging Union "sought a tremendous volume of information from the Agency relating to workload and staffing in the Agency's 51 field offices over a 5-year period"); id. at 17 (challenging Arbitrator's "failure to explain why 5 years' worth of staffing and workload information was needed" and claiming that "[t]he burden was clearly on the [Union] to demonstrate a `particularized need' for this historical data"). As only nine of the requested items involve historical data, we conclude that the only requests at issue here are the requests for: (1) professional staffing levels and ceilings for each field office for various dates retroactive to 1998; (2) the method by which these levels and ceilings are determined; (3) monthly reports, retroactive to October 1, 1998, that include information related to field office staffing; (4) monthly reports, for the same time period, that include information related to case intake, handling or processing; (5) "[a]ny other backlog and on-time statistical measures for each Regional, Subregion, and Resident office" over the same time period; (6) any other reports of case-handling levels or other case-handling statistical measures for those offices over the same period; (7) any other productivity measures for those offices over the same period; (8) an explanation of the Agency's "Interregional Assistance Program (IRAP), including the factors considered in determining transfer orders[;]" and (9) all IRAP transfer orders from fiscal years 2002, 2001, 2000, 1999 and 1998. Exceptions, Attachments, Jt. Ex. 5 at 2.
Footnote # 3 for 60 FLRA No. 115 - Authority's Decision
We note that there are two separate agreements at issue, one between the Union and the Agency's General Counsel, and the other between the Union and Agency headquarters. Section 28.2 of both agreements provides, in pertinent part:
(c) At least ten (10) Regional Offices designated by Operations-Management . . . will ordinarily be available for [details]. Management may consider employee requests for details to offices not so designated.
(d) In August of every year, the Division of Operations-Management will identify those Regional Offices that are able to accept the assignment of a Headquarters unit employee and will transmit that information to the Exchange Committee no later than August 31. Thereafter, on the date of the announcement of details for the upcoming year, the Committee will notify potential exchange applicants of the Regional offices to which they may apply. Exceptions, Attachments, Jt. Ex. 1 at 85-86 & Jt. Ex. 2 at 85. Section 28.3 is not at issue here.
Footnote # 4 for 60 FLRA No. 115 - Authority's Decision
Footnote # 5 for 60 FLRA No. 115 - Authority's Decision
We note that the Agency's exceptions regarding administration of the details program challenge only the Arbitrator's direction to grant details to the four employees and his finding that the Agency may consider only limited factors in determining which field offices are available to accept details. Accordingly, we do not address the Arbitrator's other findings regarding administration of the details program.
Footnote # 6 for 60 FLRA No. 115 - Authority's Decision
Footnote # 7 for 60 FLRA No. 115 - Authority's Decision
Because this case was litigated after the Authority determined to apply the excessive interference standard in resolving exceptions to arbitration awards, Member Pope agrees that it is appropriate to apply the excessive interference standard here. See United States Dep't of Veterans Affairs, Augusta, Ga., 59 FLRA 780, 786 n.1 (2004) (citation omitted) (Member Pope dissenting in part on other grounds).
Footnote # 8 for 60 FLRA No. 115 - Authority's Decision
Footnote # 9 for 60 FLRA No. 115 - Authority's Decision
We note that the Arbitrator found that the denial of the information request violated not only § 7114(b)(4)(B) of the Statute, but also Section 10.8 of the parties' agreements. See Award at 23. The Arbitrator did not set forth the wording of Section 10.8 and provided no indication that, in finding this contract violation, he was applying standards different from those involving alleged violations of § 7114(b)(4)(B). Accordingly, there is no basis for concluding that the Arbitrator found that Section 10.8 provides an independent basis for ordering the notice posting here. Thus, we find that Section 10.8 does not provide an independent basis for upholding the order to post a notice.
Additionally, we find it unnecessary to address whether, as a remedial matter, the Agency could have been required to furnish the requested information at this time if the Union had established a particularized need, since the portion of the award concerning the administration of the details program -- the very matter for which the information was requested -- has been set aside.