32:0982(140)NG - - AFGE, National Council of Field Assessment Locals and HHS, SSA - - 1988 FLRAdec NG - - v32 p982

[ v32 p982 ]
The decision of the Authority follows:

32 FLRA No. 140














Case No. 0-NG-1515


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). It concerns the negotiability of two proposals which require the Agency to provide the Union with: (1) the Agency's reasons for selecting the critical elements in a performance plan for a newly created position; and (2) all statistical data used to develop performance standards for that position.(1)

We find that the proposals do not directly interfere with management's rights under section 7106(a)(2)(A) and (B) of the Statute to direct employees and assign work. We conclude, therefore, that the proposals are negotiable.

II. Procedural Issues

On August 14, 1987, the Agency notified the Union that it had established a position description and performance standards for a new position entitled Disability Quality Branch Social Insurance Assistant. By letter dated September 8, 1987, the Union requested bargaining on the Agency's establishment of the position description and performances standards and submitted proposed ground rules for negotiations as well as substantive proposals. The Agency responded on September 28, 1987 that Proposal F and the first part of Proposal G were nonnegotiable. By letter dated October 6, 1987, the Union requested that the Agency inform the Union as to when it desired to begin bargaining or indicate whether it was refusing to bargain. The Agency informed the Union, by letter dated October 22, 1987, that it was not refusing to bargain and repeated its claim of nonnegotiability as to Proposals F and G.

On January 25, 1988, the Union requested the Agency to provide it with "any allegations the agency may have" regarding the Union's proposals. On February 5, 1988, the Agency responded by claiming that the Union's request was untimely based on the Agency's response of September 28. On February 17, 1988, the Union filed a petition for review with the Authority.

The Agency contends that the appeal should be dismissed because the Union's petition for review is defective and untimely. The Agency asserts that the petition for review: (1) does not contain copies of all "relevant" material as required by section 2424.4(a)(3) of the Authority's Rules and Regulations; (2) does not identify which of the proposals contained in the petition are being submitted for a negotiability determination by the Authority; and (3) is untimely under section 2424.3 of the Authority's Rules and Regulations because it was filed more than 15 days after service of the Agency's allegation dated October 22, 1987.

In the alternative, if "the [U]nion is permitted to further perfect its petition" by providing the necessary materials, the Agency requests a new 30-day time period, as provided under section 2424.6 of the Authority's Rules and Regulations, so that the it can respond to the Union's petition for review. Agency's Statement of Position at 5.

Contrary to the Agency's assertions, we find that the Union's petition for review contains copies of the relevant material required by section 2424.4(a)(3) of our Rules and Regulations. We find that the record contains all materials relevant and necessary to a determination of the procedural and substantive issues in this case. Therefore, since there is no need for the Union to supplement the record, the Agency's request for an additional 30-day period to respond is denied. The Union submitted copies of the proposals claimed to be in dispute, the Agency's response to its request for written allegations of nonnegotiability, and, upon a request by the Authority to cure deficiencies in the petition for review, a statement of the meaning to be attributed to the proposals. The materials which the Agency contends that the Union should have included in its petition for review, Agency's Statement of Position at 4, all concerned unsolicited allegations of nonnegotiability which the Union was under no obligation to include. See discussion below.

Moreover, the Agency's contention that the Union's petition for review is untimely cannot be sustained. The Agency's contention is based on the date of the October 22 letter, in which it alleged that the proposals were nonnegotiable. The Union did not request the allegation which the Agency provided on October 22, 1987. The Union's letter of October 6, 1987 merely requested that the Agency indicate whether it was refusing to bargain. The Agency's allegation of October 22, 1987, therefore, was unsolicited.

A union may decide not to appeal from unsolicited agency allegations of nonnegotiability and, instead, may request a written allegation from an agency and may appeal from that allegation. Overseas Education Association and Department of Defense Dependents Schools, 29 FLRA 485 (1987), petition for review as to other matters filed sub nom. Department of Defense Dependents Schools v. FLRA, No. 87-1734 (D.C. Cir. Nov. 30, 1987). The Union in this case requested a written allegation from the Agency on January 25, 1988 and filed its petition for review within 15 days from the date of the Agency's response to that request. Consequently, under section 2424.3 of our Rules and Regulations, the Union's petition was timely filed.

III. Proposal 1

Section F.

SSA will provide the union, within 10 days of the effective date of this agreement, in writing, a clear and precise statement setting forth the reasons for selection of critical elements in the performance plan.

Proposal 2

Section G

SSA will provide the union with all statistical data relied upon to develop performance standards for this unit position as well as what statistical data SSA intends to utilize in measuring performance. [Only the underlined portion of the proposal is in dispute.]

IV. Positions of the Parties

The Agency contends that the proposals are nonnegotiable because they require negotiation on the establishment of the content of performance standards or critical elements and thereby, conflict with management's rights to direct employees and assign work. The Agency also contends that the exercise of management rights includes the right to discuss and deliberate concerning the relevant factors on which management rights will be exercised. The Agency asserts that the proposals are outside the duty to bargain because they directly interfere with management's ability to discuss and deliberate concerning the exercise of its rights under section 7106(a) to direct employees and assign work.

The Agency argues that the proposals would allow the Union to be present in the deliberative process "after the fact" by permitting the Union to examine the documents and reasoning relied on in the deliberative process by which management determined critical elements. Agency's Statement of Position at 9. Moreover, the Agency contends that inclusion of the words "clear and precise" in Proposal 1 and the word "all" in Proposal 2: (1) could result in arbitral review of the adequacy and completeness of the Agency's explanation and documentation; and (2) would result in Union and possible arbitral intrusion into management's deliberative process. Agency's Statement of Position at 10.

Finally, the Agency asserts that Authority decisions to the contrary are distinguishable because those decisions did not address the issue of whether the proposals in dispute interfered with management's rights.

The Union contends that the proposals require the Agency to provide information that is necessary for the Union to carry out its representational function in enforcing the contract and in bargaining. The Union argues that the information is necessary in order for it to determine whether critical elements and performance standards are established in accordance with law and to enforce those legal requirements through the negotiated grievance procedure. The Union also argues that the proposals do not interfere with management's rights because they would only take effect after management has decided the content of the elements and standards. According to the Union, furnishing the required information "in no way interferes with the [A]gency's prior decision to use the standard." Union's Response at 7.

The Union also asserts that the proposals are negotiable because they only reiterate the Union's right to information under section 7114(b)(4) of the Statute. The Union claims that the proposals would merely add a procedural requirement that the information be provided by the Agency "automatically" without it being requested separately. Union's Response at 8.

V. Discussion

The proposals would require the Agency to furnish certain information concerning performance standards and critical elements to the Union. Proposal 1 would require the Agency, within 10 days of the effective date of the parties' agreement, to provide the Union with a clear and precise written statement setting forth the Agency's reasons for choosing the critical elements in the performance plan for a newly created position. Proposal 2 would require the Agency to provide the Union with all statistical data that the Agency used to develop the performance standards for that position. For the reasons which follow, we find that the proposals are within the duty to bargain.

The issue presented in this case is whether proposals which require management to provide the Union with information pertaining to the exercise of management's rights to direct employees and assign work interferes with those rights so as to be nonnegotiable under section 7106(a) of the Statute.

In National Labor Relations Board, 26 FLRA 108 (1987) (NLRB), the Authority held that an agency did not violate section 7116(a)(1), (5), and (8) of the Statute when it refused to provide the union with a copy of a memorandum in which a management official recommended denial of an employee request for part time work. See also National Park Service, National Capitol Region, United States Park Police, 26 FLRA 441 (1987), in which the Authority held that the agency did not commit an unfair labor practice by refusing to provide the union with copies of memoranda in which management officials made recommendations concerning disciplinary action and leave requests. The Authority concluded that the agencies in those cases were not required under section 7114(b)(4) to provide the unions with the information requested because to do so would be contrary to law. The Authority held that disclosure to the unions of the information requested would be contrary to section 7106(a) of the Statute because the disclosure would permit the unions to participate in the decision-making process whereby management exercised its rights.

On appeal, the United States Court of Appeals for the District of Columbia Circuit reversed the Authority's decisions in those cases. National Labor Relations Board Union, Local 6 v. FLRA, 842 F.2d 483 (D.C. Cir. 1988). The Court held that section 7106 of the Statute did not constitute a limitation on the disclosure of information by management to a union. The Court stated:

Section 7106 by any reading does not prohibit the disclosure of anything. All it does is reserve to management the authority to act in certain areas. Nothing in º 7106 prohibits management from disclosing any or all of the data relied upon or accumulated by it in acting within those areas. . . . Nothing in º 7106 contains any language concerning the disclosure or prohibition of disclosure of anything.

Id. at 486.

We conclude that there is no substantive difference between the type of information sought in the requests at issue in NLRB and National Park Service, and the information sought by the proposals in this case. The memoranda containing recommendations concerning proposed management action in those cases included information which revealed some aspect of the rationale for the actions to be taken by management. If section 7106 does not preclude disclosure of that information, we conclude, in agreement with the court's reasoning, that section 7106 does not preclude disclosure of the information sought by the proposals at issue in this case.

In light of the court's decision discussed above and based on our reconsideration of the issue, we conclude that section 7106 of the Statute does not limit the disclosure of information which is the product of the decision-making process involving the exercise of management's rights. Consequently, we find that disclosure of the information sought by the proposals in this case is not precluded by section 7106 of the Statute.

We n