OBJECTIVES: The Objectives of this class are:

1. To improve union representatives’ understanding of the legal requirements for obtaining information under the Civil Service Reform Act.

2. To devise ways to overcome obstacles to obtaining information that is "necessary and relevant" for representational purposes.

On the following pages you will find a summary of the three statutes that determine whether the union gets access to information and a model letter. As the instructor walks the class through them, take notes and ask questions because you should be able to refer to these pages throughout the year when you face an information request problem.

1 This section of the Civil Service Reform Act and any language found in your collective bargaining contracts should be used far more often than any other authorities for accessing information.

2 The law gives access to "data" which includes documents that can be simply copied as well as lists or other materials that may have to be created from existing files. They cannot charge you for this data.

3 There is a four-part test to getting information under the law. First, are the data normally maintained by the agency. It does not have to exist in the form you request it; the agency can be obligated to reformat it for you so long as you are not unreasonable in your demand. Moreover, it does not have to be maintained in that office. If it is anywhere the agency can get it, you get it.

4 Second, are the data reasonably available. Your request can be burdensome, but it should not be excessive nor extreme. You must modify your demand if the agency can give you what you want in a less burdensome format.

5 Third, is your demand necessary, not just useful, to the negotiations of or grievances over a contract. This includes getting information to help you decide whether to file a grievance or invoke negotiations. In some cases you need a particularized need.

6 Fourth, you cannot get access to information which management uses to advise other managers how to conduct specific collective bargaining responsibilities.

7 If denied the information, you can file a ULP with the FLRA, file a ULP grievance citing a violation of Section 7114, add this issue to an existing grievance, or file a related request under FOIA or Privacy. You can even publicize the denial among the members claiming a cover-up.

8 If the data you request would result in an invasion of an employee’s privacy, you may have to get it in sanitized, but coded fashion.

 

Monte Mall

Chief, Inspectional Services

Department of the Treasury

1234 Backwater Street

Reno, Arkansas 50001

RE: Request Filed Under 5 U.S.C. 7114(b)(4)

Mr. Mall:

In accordance with 5 U.S.C. 7114(b)(4) and Article , Sections and , of the NTEU Agency Agreement, I request to be given the following information:

1. A copy of each and every document, of any kind or nature, which... (At this point, identify each of the specific document(s) which you believe is maintained by the agency and which is necessary to investigate a potential grievance, prepare or process a grievance at any stage, including arbitration, or conduct negotiations. All requests should identify a specific and well defined issue.)

I require this information in order to carry out my duties and responsibilities identified in 5 U.S.C. Chapter 71. (Include a statement of how the requested information is relevant to the union's status as exclusive representative. See paragraph I(B)(2) in text, above.)

I request that this data be furnished to me no later than five (5) days after you receive this letter.

If this request is denied, in whole or in part, please inform me, in writing, of the name, position title, and grade of the official making that decision and the specific statutory, regulatory, or contractual citation(s) on which that decision is based.

 

Sincerely,

 

Keith Parker

Steward, NTEU Chapter 550

These questions should be reviewed by everyone at your table and then the table should be prepared to give an answer when the instructor calls for them. Feel free to make notes in your book under each question as to why the answer is correct.

1. The Union’s right to information under 7114 is broader than access under the Freedom of Information Act.

 

 

2. An agency is required to provide the Union with information pursuant to a request under 5 U.S.C. 7114(b)(4) if the documents are maintained within a "system of records."

 

 

3. If an agency would have to use "extreme or excessive means" to satisfy a Union’s request for information, it can legally refuse to comply and not commit an unfair labor practice.

 

 

4. 5 U.S.C. 552 requires an agency to charge a fee for search and copying costs, whereas 5 U.S.C. 7114(b) does not.

 

 

5. Release of a disciplinary letter issued to a supervisor could not be permitted under 7114(b)(4), because it violated the Privacy Act.

 

 

6. Under FLRA precedent, rules of the Merit Systems Protection Board do not govern determinations for information under 5 U.S.C. 7114(b)(4).

 

 

7. The Union is always entitled to sanitized copies of performance appraisals when grieving a gender discrimination case.

 

 

8. An agency can destroy documents which have been requested under 7114.

 

 

9. Unsanitized copies of performance plans would be releasable under 7114, but unsanitized performance would not.

 

 

10. Disclosure of the names of employees who received performance awards was not barred by the Privacy Act.

 

 

11. The Union is entitled to the names of employees who had been investigated for misconduct, but not disciplined.

 

 

12. At the time a request for information is made, the Union is required to provide enough of an explanation to permit an agency to decide whether or not to release the information.

 

 

13. The Union has to meet the FLRA’s two-part test in order to satisfy the "particularized need" standard.

 

 

14. In order for the Union to demonstrate it has a necessity for information, it must identify the grievant(s), but not reveal its strategy for handling the case.

 

15. Even though an agency may have established a legitimate reason for not disclosing information based on either the Privacy Act or Freedom of Information Act, the Union may still be entitled to the information.

Problem 1 - As a result of an administrative investigation, Goober Ningwrich received a proposed removal notice for allegedly stealing government property, making false statements, and engaging in conduct unbecoming an employee of the Interplanetary Alien Oversight Administration ("IAOA"). Ningwrich sought assistance from his union, the Government Workers of the World ("G-WOW"), which made several requests for information "to properly respond to the allegations in the notice." G-WOW specifically asked for: 1.) proposed and final decisions involving adverse and disciplinary actions from 1995-1997 for "offenses similar to those charged against Ningwrich; 2.) the entire investigative file; 3.) statutory and regulatory authority supporting the investigation against Ningwrich; and, 4.) manuals used to conduct such investigations. IAOA provided a copy of the investigative report and refused to release any other information. In a subsequent discussion IAOA expressed concern that releasing letters on other employees would violate their privacy rights. G-WOW explained that the Union needed to analyze comparable situations with the penalties imposed, and indicated it would accept sanitized copies of the letters. No additional information was offered by IAOA and therefore G-WOW filed an unfair labor practice.

Answer: Because G-WOW had a meeting with IAOA subsequent to making its information request and explained that the letters on other employees were needed to compare penalties for comparable offenses, as well as the Union’s willingness to accept sanitized copies, G-WOW satisfied the FLRA’s particularized need standard. As to the other items, however, G-WOW made no attempt to explain the need for the information other than that it would be used to properly respond to the allegations against Ningwrich; therefore, the Union did not establish how and why the information was necessary. INS Northern Region, and AFGE National Border Patrol Council, 51 FLRA No. 119, 51 FLRA 1467 (1996), reconsideration denied, 52 FLRA No. 121 (1997) petition for review filed, No. 97-1388 (D.C. Cir. June 10, 1997).

Problem 2 - Madonna Whiner was not selected for promotion to a Grade 2 jellybean analyst vacancy at the National Endowment for Sweetness in Life ("NESIL"). Whiner complained to her Union, the Association of Candy Employees ("ACE"), which filed a grievance and an information request. Part of ACE’s information request included copies of any "memory joggers" maintained by her two supervisors--Tricksie Witch and Luther Hohum. Ms. Witch had served as Whiner’s supervisor for seven months, and Mr. Hohum, who is currently her supervisor, served in that capacity for five months during the appraisal period. After three weeks and no answer from NESIL management, ACE reiterated its request for information. Several days later, NESIL responded and acknowledged that memory joggers had been maintained, but refused to provide copies to the Union. An unfair labor practice was filed, a complaint was issued, and a hearing was held before an administrative law judge. At the hearing, one of the ACE steward’s handling Whiner’s grievance testified that the memory joggers were necessary: 1.) to investigate, evaluate, and process the grievance; 2.) to determine whether personnel records were being collected and maintained in violation of the contract; 3.) to represent Whiner in connection with any such contract violation. At the hearing, NESIL’s witnesses, Witch and Hohum, admitted to destroying the memory joggers.

Problem 3 - The Internet Police Officers Benevolent Union ("IPOBU"), the exclusive representative of employees who work for the Commission for Internet Administration ("CIA"), requested copies of all materials documenting the voluntary and involuntary demotion of employees from January 1989 to February 1993. The information was needed in order to determine whether the CIA had: 1.) engaged in disparate treatment when setting pay rates for demoted employees; 2.) violated the contract, which prohibited discrimination based on age, sex, marital status, race, color, ethnic background and/or national origin; and, 3.) violated any law, rule or regulation associated with setting pay rates upon demotion. Subsequent to receiving IPOBU’s 7114 request, CIA management approached the Union and inquired whether there was any way to narrow the information request; however, IPOBU indicated that it wanted the information exactly as it had been requested. Thereafter, the CIA denied the request because IPOBU had not shown the information to be necessary, the request was overly broad, and the materials were not reasonably available (i.e., it could only be produced through extreme means and at an unreasonable expense).