The two proposals in dispute involve furnishing
information to the union that is related to the agency's decision
to conduct a trial program in order to determine whether administratively
uncontrollable overtime (AUO) pay is appropriate for law enforcement
positions. They read as follows:
# 19. Management will provide the Union President with all the
completed evaluation materials upon the conclusion of the 13 week
trial period.
# 20. Management agrees to provide the Union President all documentation
collected and documented during any "Spot Checks" on
any bargaining unit Rangers.
The agency argued, among other things, that the proposals affected
its rights to assign work and to determine the methods and means
of performing its work. It contended that, in order to comply with
the proposals, the Agency "would have to remove several employees
from their regularly assigned duties for several weeks to collect,
collate and redact approximately 9,800 documents containing confidential
law enforcement and privacy information."
The Authority, noting that the union didn't dispute this claim,
elaborated further on the proposals' requirements:
The requirement to redact these documents means that, for each
of the thousands of Forms 9260-12 and 9260-15, Agency personnel
would be required to examine numerous entries on each form and,
one-by-one, redact sensitive information. As the Agency claims,
it would be precluded from assigning to those employees their
regularly assigned duties. We agree with the Agency, that the
proposals affect management's right to assign work under §7106(a)(2)(B)
of the Statute.
It rejected the union's claim that FLRA has found proposals negotiable
where management retains the right to determine to whom duties will
be assigned and how the work will be performed. It distinguished
the proposals at issue from those in cases in which the agency was
required "to simply take a ministerial act in implementing
a negotiable procedure that was not self-effectuating or take some
action in addition to that already taken as part of management's
general duties." Although it has found that "'some assignment
of work' to management personnel may be appropriate and negotiable,
. . . requiring management to furnish an excessive amount of material
in this case is neither."
It noted that the D.C. Circuit, in NLRBU, Local 6 v. FLRA,
842 F.2d 483, 486 (1988) -- involving the "prohibited by law"
provision of §7114(b)(4) -- had said that "[s]ection 7106
by any reading does not prohibit the disclosure of anything[,]"
but didn't interpret that statement as precluding it from considering
the effect of the proposals on management's right to assign work.
It referred, in this connection, to footnote 15 in 55 FLRA No. 191,
where it said, in part, the following:
Nothing in NLRBU v. FLRA suggests that contract provisions
are insulated from the constraints of section 7106(a) simply on
the ground that they concern the release of information held by
the agency. The court held in NLRBU v. FLRA that, in
resolving an asserted statutory entitlement to information, the
"prohibited by law" exception to disclosure under section
7114(b)(4) of the Statute encompasses only disclosure laws, not
section 7106. [The provision] does not concern whether the Union
is entitled to information under section 7114(b)(4) . . . .
Moreover, it continued, it has consistently applied §7106
as a limit on the scope of bargaining. "Thus, applying the
limitations of §7106 is entirely appropriate in resolving the
negotiability of the proposals -- even those that pertain
to the disclosure of information." (Emphasis added.)
Finding that the proposals affect the right to assign work, and
given that the union made no claim that the proposals were §7106(b)(2)
"procedures" or §7106(b)(3) "appropriate arrangements,"
it dismissed the union's petition for review.
In her dissent, Member Pope claimed, among other things, that the
majority ignored 47 FLRA No. 66, provision # 2 (a provision requiring
the agency to maintain and, if necessary, create documentation supporting
performance ratings and appraisals), where FLRA rejected the agency's
claim that the proposal excessively interfered with its rights to
direct employees and assign work by requiring it to create a record
to support a lowered rating. In that case FLRA said that the agency
"contends that the benefits to employees are outweighed by
the burden on the Agency's ability to hold employees accountable
for their performance." 47 FLRA @ 716. Member Pope said that
she would "apply this clear, unchallenged precedent to reject
the Agency's argument that the proposals are inconsistent with the
right to assign work."
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