[ v59 p951 ]
59 FLRA No. 170
OF FEDERAL EMPLOYEES, LOCAL 951,
OF MACHINISTS AND AEROSPACE WORKERS
DEPARTMENT OF THE INTERIOR,
BUREAU OF LAND MANAGEMENT
CALIFORNIA STATE OFFICE
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 2152
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS
UNITED STATES DEPARTMENT OF THE
INTERIOR, BUREAU OF LAND MANAGEMENT
CALIFORNIA STATE OFFICE
DECISION AND ORDER
ON NEGOTIABILITY ISSUES
May 13, 2004
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
These cases are before the Authority on negotiability appeals filed by the Unions (hereinafter referred to as Union) under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of three proposals. The Agency filed statements of position in both cases, following which the Union filed responses and the Agency filed replies. The Union filed supplemental submissions in both cases responding to the Agency's replies. [n2]
For the reasons explained below, we find that the proposals are outside the duty to bargain. Accordingly, we dismiss the petitions for review.
II. Consolidation of Cases
The Union requests that the cases be consolidated. See Union's Supplemental Submission, cover letter at 1. The Agency does not object to that request. We note that the petitions for review in both cases involve the same parties, arise from bargaining over the same matters, and contain an identical proposal. Although the petition in Case No. 0-NG-2682 contains one additional proposal, all of the proposals concern the furnishing of documents to the Union in connection with the Agency's decision to conduct a trial program to determine whether administratively uncontrollable overtime (AUO) pay is appropriate for law enforcement positions. Given the similarities in the cases, and noting that the parties' arguments are the same in both cases, we have consolidated them for decision. See AFGE, Local 3694, 58 FLRA 148 (2002).
Proposal 19 in 0-NG-2682 and the Proposal in 0-NG-2685 [n3]
Management will provide the Union President with all the completed evaluation materials upon the conclusion of the 13 week trial period.
Proposal 20 in 0-NG-2682
Management agrees to provide the Union President all documentation collected and documented during any "Spot Checks" on any bargaining unit Rangers.
IV. Meaning of the Proposals
The parties agree that Proposal 19 means that upon conclusion of the trial period, the Agency will provide [ v59 p952 ] the Union with all completed evaluation materials. Post-Petition Conference Report at 2. The parties further agree that the term "evaluation materials" includes the following five sets of forms and documents: "(1) [Form] 9260-12 (sanitized); (2) [Form] 9260-15 (sanitized); (3) Initial calculation worksheet; (4) Recommendation yes/no; [and] (5) Decision yes/no." Id. at 3.
The Agency explains, and the Union does not disagree, that the categories of information encompassed by the proposals are as follows. First, Form 9260-12 contains a daily summary of each employee's daily activities, including confidential arrest information and law enforcement investigations. Form 9260-15 is a daily patrol log that includes a description of all work performed, including "detailed information regarding arrests, suspects, criminal activity, and potential witnesses . . . ." Statement of Position at 7.
As for the "Initial Calculation Worksheet," the Agency states, again without dispute, that it "is a sheet used by the supervisor to determine the percentage of AUO that [an employee] would qualify for according to the information provided by the AUO report, time sheets and Patrol Log." Id. at 8. The Agency explains that the fourth category of information, the "Recommendation yes/no," "is a recommendation that the Human Resources office gives to the State Director about the implementation of AUO" for each employee in the evaluation. Id. The fifth category of information consists of "the final decision that the State Director makes as to whether or not AUO will be implemented . . . ." Id.
The parties agree that Proposal 20 means that the Agency will provide the Union all documentation created during "spot checks" -- periodic reviews -- of AUO materials related to law enforcement positions. Post-Petition Conference Report at 3. The parties also agree that "spot checks" will occur only after the conclusion of the trial period and if AUO pay is implemented, and that the materials referred to in the proposal include the materials covered by Proposal 19. Id.
V. Positions of the Parties
The Agency asserts that the proposals are inconsistent with § 7114(b)(4) of the Statute. The Agency requests that the Authority reconsider and reverse its precedent which, according to the Agency, does not properly apply § 7114(b)(4) in determining the negotiability of proposals seeking the disclosure of information. The Agency contends that in seeking to negotiate over proposals that would entitle a union to information, a union should be required to make a showing of particularized need. The Agency claims, among other things, that the Union has not made such a showing in this case.
The Agency also asserts that the proposals are inconsistent with management's right to assign work under § 7106(a)(2)(B) and right to determine the methods and means of performing work under § 7106(b)(1) of the Statute. In this regard, the Agency asserts that the proposals would require the Agency to assign to employees the task of collecting and redacting all of the materials the Agency is required to provide the Union under the proposals. The Agency argues that 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." Statement of Position at 21.
More particularly in terms of the amount of data that the Agency would be required to compile, the Agency states that the "five types of documents . . . consist of very voluminous data." Id. at 17. The Agency indicates that about 70 employees were involved in the evaluation process and that each employee was required to complete various forms. In explaining the types of information sought on Forms 9260-12 and 9260-15, the Agency states that:
For each day of each 5-day work week for the full 14-week period of the evaluation, each of approximately 70 participating [employees] was required to submit one of each of the forms (9260-12, 9260-15) or 2 forms per person per day, totaling 4,900 for both forms.
Id. at 19. The Agency asserts that, insofar as the Union is seeking approximately 9,800 documents, the proposals "can be characterized as a `fishing expedition' . . . ." Reply at 3.
The Agency also claims that the proposals are inconsistent with 5 U.S.C. § 552(b)(7)(C), which permits agencies to withhold from disclosure "records or information compiled for law enforcement purposes" where "production of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy[.]" The Agency asserts that the data contained in the requested materials has been compiled for law enforcement purposes and contains information about private individuals, which could constitute an unwarranted invasion of personal privacy if released. [ v59 p953 ]
The Union asserts that the proposals are not inconsistent with § 7114(b)(4). The Union argues that the Authority has consistently held that the entitlement to information set forth in § 7114(b)(4) may be expanded through bargaining because that section establishes a "floor and not a ceiling" on a union's right to information. Union Response at 3.
The Union also asserts that the proposals do not interfere with management's rights to assign work and determine the methods and means of performing work. The Union argues that nothing in the proposals dictates the manner in which the requested materials will be created, copied, or provided to the Union. Id. at 5. The Union also states that "proposals cannot directly interfere with a statutory management right." Id. at 4. The Union contends that its proposals are similar to ones found negotiable by the Authority because they leave to management the discretion to determine who will create and copy the information and how copies of the information "will be created, copied, or produced to the Union." Id. at 5. The Union does not dispute the volume of documents that the Agency claims the proposals would require it to produce and furnish to the Union. Instead, the Union claims that "[a]ny inquiry with respect to the `who' and the `how' addresses the merits of the proposal, and not the negotiability of language." Id.
Additionally, the Union claims that the proposals are not inconsistent with 5 U.S.C. § 552a because the materials requested in the proposals would be sanitized. Id.
VI. Analysis and Conclusions
Under Authority precedent, it is well established that the right to assign work under § 7106(a)(2)(B) of the Statute includes the right to determine the particular duties to be assigned, the right to decide when work assignments will occur, and the right to decide to whom or what positions the duties will be assigned. See, e.g., NTEU, 53 FLRA 539, 567 (1997). Proposals or provisions that concern the assignment of specific duties to particular management officials affect an agency's right to assign work. AFGE, Nat'l Border Patrol Council, 51 FLRA 1308, 1315 (1996).
The Authority previously has found that proposals and provisions that require management to perform certain tasks affect the right to assign work. For example, in NTEU, 53 FLRA at 564-68, the Authority found that a provision that required the personnel office to select members of a rating panel affected the right to assign work because it assigned a specific task to that office. See also NFFE, Local 1437, 35 FLRA 1052, 1057-61 (1990) (proposal requiring civilian personnel office to appoint employees to rating and ranking panels and equal employment opportunity office to compile a list of nominees for the panel directly interfered with the right to assign work). The Authority also has found that proposals requiring an agency to create forms to be completed by employees, develop a national database and provide reports to the union, among other things, affected management's rights, including the right to assign work. See PASS, 59 FLRA 25 (2003).
The proposals in this case would require management to assign the tasks of collating, collecting and furnishing to the Union nearly 10,000 documents. [n4] Of that number, 9,800 documents, consisting of Forms 9260-12 and 9260-15 would have to be sanitized by agency personnel.
The record reflects that each of these two forms was completed by every employee for every workday during the evaluation period. Copies of each form included in the record indicate that the forms contain spaces for numerous data entries. For example, Form 9260-12 contains a grid for entering each employee's daily activities, including arrest information and law enforcement investigations. Information that must be entered on the grid includes an incident number, the location of each incident and 14 other characteristics, as well as the name of the employee, the office and specific pay period. Form 9260-15, the Patrol Log, also includes a description of all work performed on each day. This form is categorized by time, incident, location, and observations, which includes space for a narrative description, as well as other information.
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." Statement of Position at 21. 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 the numerous entries on each form and, one-by-one, redact sensitive information. As the Agency [ v59 p954 ] 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.
We are unaware of any precedent, and the Union does not cite any, in which the Authority has directed parties to negotiate over a proposal that required an agency to collect, collate and redact nearly 10,000 documents. Cf. POPA, 48 FLRA 129, 155-158 (1993) (Member Armendariz dissenting as to other matters), petition for review denied as to other matters, POPA v. FLRA, 47 F.3d 1217 (D.C. Cir. 1995) (agency did not object to portions of proposals that required it to provide some reports to the union). The Union simply argues that the Authority has found proposals negotiable where management retains the right to determine to whom duties will be assigned and how the work will be performed.
The proposals here are distinguishable from those in which an 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. For example, in POPA, 47 FLRA 954, 958-59 (1993) (POPA), the Authority found negotiable a proposal that simply required certain actions by management personnel to whom the agency had already assigned similar duties. Likewise, in NTEU, 43 FLRA 1279, 1293-94 (1992) and AFGE, AFL-CIO, Local 446, 43 FLRA 836, 844-45 (1991), the Authority found that the requirement to create written records reflected existing agency requirements or those established by other legal authority. While the Authority has determined, in these and other cases, that "some assignment of work" to management personnel may be appropriate and negotiable, POPA, 47 FLRA at 959, in our view, requiring management to furnish an excessive amount of material in this case is neither.
In finding that the proposals affect the right to assign work, we acknowledge the statement of the Court of Appeals for the District of Columbia Circuit in NLRBU, Local 6 v. FLRA, 842 F.2d 483, 486 (D.C. Cir. 1988) (NLRBU v. FLRA), that "[s]ection 7106 by any reading does not prohibit the disclosure of anything." We do not read the court's statement as barring the Authority from considering the effect of the proposals on management's right to assign work. We note two points, in this regard. First, the Authority has previously stated, in addressing the negotiability of a provision in NTEU, 55 FLRA 1174, 1186 n.15 (1999) (Member Wasserman dissenting in part), that "[n]othing 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 an agency." Second, the Authority 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.
In sum, for the reasons explained above, we agree with the Agency that the proposals affect management's right to assign work. As the Union makes no claim that the proposals are negotiable under § 7106(b)(2) or (3) of the Statute, we dismiss the petitions for review. [n5]
The petitions for review in Case No. 0-NG-2682 and Case No. 0-NG-2685 are dismissed.
Concurring Opinion of Chairman Cabaniss:
I write separately to more directly address the situation presented, here, i.e., where a proposal seeks to negotiate information entitlements in excess of those provided by § 7114(b)(4) of the Statute. Proposals falling within the parameters of § 7114(b)(4) clearly are governed by traditional precedent § 7114(b)(4) precedent such as the NLRBU, Local 6 v. FLRA court case cited in the majority opinion. And, as regards that precedent and proposals subject to that precedent, an agency's rights under § 7106(a) provide no ability to withhold the information.
On the other hand, where (such as here) a proposal seeks to establish an entitlement in excess of that provided by § 7114(b)(4), I would subject the proposal to a traditional § 7117 analysis. Under § 7117, in the event an agency asserted that one of its § 7106(a) rights was affected by the proposal, the Authority would examine whether the proposal falls within the range of proposals bargainable under § 7106(b). Consistent with that belief and the majority opinion, I would find the proposals here to be outside of the duty to bargain.
File 1: Authority's Decision in 59 FLRA No.
170 and Opinion of Chairman Cabaniss
File 2: Opinion of Member Pope
Footnote # 1 for 59 FLRA No. 170 - Authority's Decision
Footnote # 2 for 59 FLRA No. 170 - Authority's Decision
Footnote # 3 for 59 FLRA No. 170 - Authority's Decision
Footnote # 4 for 59 FLRA No. 170 - Authority's Decision
This total is derived from the following: 4,900 copies of Form 9260-12; 4,900 copies of Form 9260-15; 70 copies of the Initial Calculation Worksheet; and unspecified numbers of "Recommendation yes/no" forms, "Decision yes/no" forms and all documentation collected and documented during "spot checks."
Footnote # 5 for 59 FLRA No. 170 - Authority's Decision
In light of this conclusion, we find that there is no need to address the parties' additional contentions, including those the Union claims in its supplemental submissions were untimely raised by the Agency in its reply briefs.