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File 2: Opinion of Member Pope

[ v59 p955 ]

Dissenting Opinion of Member Pope:

      Today the majority creates new law that is flatly inconsistent with precedent the majority refuses to even acknowledge. Accordingly, I dissent.

      The Authority has long and consistently held that proposals are not inconsistent with the right to assign work merely because they require management to take certain actions. See Patent Office Prof'l Ass'n, 47 FLRA 954, 957-59 (1993); Patent Office Prof'l Ass'n, 47 FLRA 10, 65-66 (1993), rev'd in part & aff'd in part on other grounds, 26 F.3d 1148 (D.C. Cir. 1994); NTEU, 43 FLRA 1279, 1293-94 (1992); AFGE, AFL-CIO, Local 446, 43 FLRA 836, 844-45 (1991) (Member Talkin dissenting on other grounds); AFGE, AFL-CIO, Nat'l Council of Field Assessment Locals, 32 FLRA 982, 985-89 (1988); NLRB Prof'l Ass'n, 32 FLRA 557, 563-65 (1988). In this connection, the Authority has stated that "[t]o conclude that a proposal or provision interferes with management's right to assign work simply because it requires an agency to take some action would completely nullify the obligation to bargain because no obligation of any kind could be placed on management through negotiations." NFFE, Local 2099, 35 FLRA 362, 368 (1990).

      The Authority has never found an exception to this principle based on the number of documents that a proposal would require management to provide. In fact, in a decision that the majority ignores, the Authority explicitly rejected creating an exception for cases where the burden on management allegedly would be great. See NTEU, 47 FLRA 705, 715, 719 (1993) (Member Armendariz concurring in part and dissenting in part on other grounds) (rejecting right to work argument where agency claimed provision would burden it with "onerous responsibility"). Unlike the majority, I would apply this clear, unchallenged precedent to reject the Agency's argument that the proposals are inconsistent with the right to assign work. The decision by the majority obscures and/or ignores precedent in a way that will increase confusion among the parties and decrease stability in the law. See, e.g., NTEU v. FLRA, 774 F.2d 1181, 1192-93 (D.C. Cir. 1985) (Authority decision remanded because it did not contain "the reasoned analysis which the law requires for the FLRA's departure from . . . policy").

      I also would reject the Agency's remaining arguments.

      First, the Agency's § 7106(b)(1) claim merely repeats the Agency's argument with respect to the assignment of work and I would reject it on the same ground.

      Second, I would reject the Agency's claim regarding § 7114(b)(4)(B) of the Statute on the ground that it is well-settled that the entitlement to information under § 7114(b)(4) is a "statutory floor and not a ceiling." Patent Office Prof'l Ass'n, 39 FLRA 783, 815 (1991) (POPA) (citation omitted). Accord NTEU, 22 FLRA 131, 134 (1986). Nothing in § 7114(b)(4)(B) prohibits a union from negotiating for information over and above the statutory entitlement. POPA, 39 FLRA at 815; NTEU, Chapter 237, 32 FLRA 62, 69 (1988); NTEU, 22 FLRA at 134. And nothing in § 7114(b)(4)(B) prohibits a union from negotiating for any particular amount of information. See, e.g., AFGE, AFL-CIO, Local 2782, 49 FLRA 470, 478-79 (1994) (Member Armendariz concurring as to other matters); NTEU, Chpts. 243 & 245, 45 FLRA 270, 275-76 (1992); POPA, 39 FLRA at 815. [n1] 

      Third, I would reject the Agency's claim that the proposals are inconsistent with the Freedom of Information Act (FOIA) because the materials sought in the proposals fall within the exception to the FOIA set forth at 5 U.S.C. § 552(b)(7)(C). [n2] Under the FOIA, records must be disclosed unless they are subject to a specific exemption set forth in the Act. See AFGE, Local 1021, 47 FLRA 258, 267 (1993). It is well and long-established, however, that the FOIA "`does not prohibit release of data within the meaning of [§] 7114(b)(4) of the Statute.'" F.E. Warren AFB, Cheyenne, Wyo., 44 FLRA 452, 455-56 (1992) (quoting United States DOL, Office of the Asst. Secretary for Admin. & Mgmt., 26 FLRA 943, 952 (1987)); see also Campaign for Family Farms v. Glickman, 200 F.3d 1180 (8th Cir. 2000) (because the FOIA is a disclosure statute it only compels -- not prohibits -- disclosure). As the FOIA does not prohibit disclosure, a proposal requiring disclosure is not inconsistent with the FOIA.

      For the foregoing reasons, I would find that the Agency has not demonstrated that the proposals are outside the duty to bargain, and I would issue a bargaining order.

File 1: Authority's Decision in 59 FLRA No. 170
File 2: Opinion of Member Pope

Footnote # 1 for 59 FLRA No. 170 - Opinion of Member Pope

   Although the Agency requests that the Authority reverse this precedent, it has provided no basis to do so. In this connection, as the Authority held in NTEU, 22 FLRA 131, "the language and the legislative history" of § 7114(b)(4) indicate that "Congress meant that provision to establish the minimum information which must be disclosed to a union[,]" and that, as a result, "nothing in section 7114(b)(4) prevents a union from negotiating with an agency for the disclosure of information . . . beyond what it is entitled to under the Statute." Id. at 134 (emphasis in original) (citing H.R. Rep. No. 95-1403, 95th Cong., 2nd Sess. 48 (1978)). The Agency cites no statutory wording, legislative history, or other authority that conflicts with, or supports reversing, this principle.

Footnote # 2 for 59 FLRA No. 170 - Opinion of Member Pope

   That exception permits agencies to withhold "records or information compiled for law enforcement purposes" where "production of such law enforcement records" could "reasonably be expected to constitute an unwarranted invasion of personal privacy[.]" 5 U.S.C. § 552(b)(7)(C). I note that the Agency provides no basis for concluding that this exemption even applies here. I also note that, insofar as the Agency's assertion that the proposals could result in an unwarranted invasion of personal privacy could be read as a claim that the proposals violate the Privacy Act, I would reject that claim as a bare assertion. See Fraternal Order of Police, Lodge #1F, 57 FLRA 373, 377 (2001).