National Federation of Federal Employees, Locals 951 and 2152, International Association of Machinists and Aerospace Workers and Department of Interior, Bureau of Land Management, California State Office, Sacramento, California, 0-NG-2682 and -2685, May 13, 2004, 59 FLRA No. 170.

In a split decision (Member Pope dissenting), proposals requiring the agency to provide a great deal of information are nonnegotiable because they affect the right to assign work. (No claim was made that the proposals were (b)(2) procedures or (b)(3) appropriate arrangements.) "The Agency argues, and the Union does not dispute, that 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 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."

Although this case involves the negotiability of a proposal requiring information disclosure -- and not the duty to disclose information under §7114(b)(4) -- readers might be interested in some remarks made by the 5th Circuit suggesting that the scope of the information requested might have a bearing on whether there was a §7114(b)(4) duty to disclose the information. See, in this connection, INS v. FLRA, 99 F.2d 285 (5th Cir. 5/26/93), review of 43 FLRA No. 58, reported in Significant Cases No. 97, June 1993. In that case the court said the following:

[I]n evaluating the reasonable availability [7114(b)(4)(B)] of documents, the FLRA should focus primarily on the efforts required to make the documents available, including costs and displacement of the agency's workforce. . . . [W]hen evaluating workforce requirements and the other related costs needed to produce the data, the FLRA should at all times keep in mind Congress's stated goal of maintaining effective and efficient governmental operations . . . .