Natl Fed Fed 951 v. FLRA

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 6, 2005 Decided June 17, 2005
Reissued August 17, 2005

No. 04-1224

NATIONAL FEDERATION OF FEDERAL EMPLOYEES, FD-1,
IAMAW, LOCAL 951 AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, FD-1,
IAMAW, LOCAL 2152,
PETITIONERS

v.

FEDERAL LABOR RELATIONS AUTHORITY,
RESPONDENT

On Petition for Review of an Order of the
Federal Labor Relations Authority

Susan T. Grundmann argued the cause and filed the briefs
for petitioners.

Gregory O’Duden, Elaine D. Kaplan, Julie M. Wilson,
Mark D. Roth, and Judith D. Galat were on the brief for amici
curiae National Treasury Employees Union, et al. in support of
petitioners. Barbara A. Atkin entered an appearance.

William E. Persina, Attorney, Federal Labor Relations
Authority, argued the cause for respondent. With him on the
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brief were David M. Smith, Solicitor, and William R. Tobey,
Deputy Solicitor.

Before: EDWARDS, HENDERSON, and TATEL, Circuit
Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: In this case, the Federal Labor
Relations Authority ruled that a federal agency had no
obligation to bargain over two union proposals calling for
disclosure of certain documents. According to the FLRA, the
proposals interfere with the federal agency’s statutory “right to
assign work” because the agency would have to assign personnel
to review the many documents sought by the union. But
longstanding FLRA precedent makes clear that union proposals
interfere with the right to assign work only when they specify
which employees are to perform the task at issue—something
neither proposal here does. Because the ruling in this case
completely ignores this precedent and unreasonably limits the
statutory obligation to bargain, we grant the union’s petition for
review.

I.
The Federal Service Labor-Management Relations Statute,
5 U.S.C. § 7101 et seq., (“FSLMRS”) requires federal agencies
and unions representing federal employees to bargain in good
faith, id. § 7117. When in the course of bargaining a union
submits a proposal to an agency, the two sides ordinarily
negotiate until they agree or reach impasse. In the latter event,
either may refer the issue to the Federal Services Impasses
Panel, which, should it fail to prompt settlement, can “take
whatever action is necessary.” Id. § 7119(b)-(c).
Though agencies have a duty to bargain, this duty does not
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extend to all matters. In the FSLMRS, Congress reserved
certain rights to management, see id. § 7106(a), including the
right “to assign work . . . and to determine the personnel by
which agency operations shall be conducted,” id. §
7106(a)(2)(B). If an agency declines to bargain over a proposal
because it believes the proposal interferes with the right to
assign work (or falls outside the duty to bargain for any other
reason), the union may appeal to the Federal Labor Relations
Authority (“FLRA”). Id. § 7117(c).
This case arose when petitioners, two locals of the National
Federation of Federal Employees that represent rangers
employed by the Bureau of Land Management (“BLM”),
received notice that BLM planned to evaluate the rangers’
eligibility for a salary premium. BLM and the locals began
negotiations concerning this evaluation, and the locals proposed
that BLM provide them with various evaluation-related
documents. According to BLM—and the unions do not
disagree—the proposals would require it to produce
approximately 10,000 documents, some 9,800 of which would
have to be sanitized in order to avoid disclosing confidential law
enforcement information.
Asserting that the proposals interfered with its statutory
right to assign work, BLM declared them non-negotiable, and
the locals appealed to the FLRA. With one member dissenting,
the FLRA agreed with BLM. Nat’l Fed’n of Fed. Employees,
Local 951, 59 F.L.R.A. 951 (2004) (“NFFE, Local 951”).
According to the FLRA, “[t]he Authority previously has found
that proposals and provisions that require management to
perform certain tasks affect the right to assign work.” Id. at 953.
The proposals at issue here would have such an effect, the
FLRA reasoned, because “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.” Id. (internal quotation marks omitted). During that
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period, BLM “would be precluded from assigning to those
employees their regularly assigned duties.” Id. at 954.
Acknowledging that it had previously rejected declarations of
non-negotiability made with respect to proposals that required
agency personnel to implement, the FLRA asserted that those
proposals “simply” called for the agency to “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.” Id. The FLRA also
stated that “[w]e are unaware of any precedent . . . 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.” Id.
According to the dissent, the majority created “new law that
is flatly inconsistent with precedent the majority refuses to even
acknowledge.” Id. at 955. “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,” the dissenter explained. Id. The FLRA
has, moreover, “never found an exception to this principle based
on the number of documents that a proposal would require
management to provide.” Id.
The locals now petition for review.

II.
Pursuant to the FSLMRS, we review FLRA decisions under
the APA’s arbitrary and capricious standard. 5 U.S.C. § 7123(c)
(incorporating by reference the provisions of 5 U.S.C. § 706).
Of particular relevance to this case, agencies act arbitrarily and
capriciously when they “ignore [their] own relevant precedent.”
B B & L, Inc. v. NLRB, 52 F.3d 366, 369 (D.C. Cir. 1995) (per
curiam). Of course, agencies may depart from precedent, but
“an agency changing its course must supply a reasoned analysis
indicating that prior policies and standards are being deliberately
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changed, not casually ignored.” Greater Boston Television
Corp. v. FCC, 444 F.2d 841, 852 (D.C. Cir. 1970). In two
recent cases, we applied this fundamental principle of
administrative law to the FLRA itself, remanding its decisions
because it had disregarded its own precedent without
explanation. See Nat’l Treasury Employees Union v. FLRA, 399
F.3d 334 (D.C. Cir. 2005); Nat’l Fed’n of Fed. Employees,
Local 1442 v. FLRA, 369 F.3d 548 (D.C. Cir. 2004). We do so
again here.
The FLRA has held that the right to assign work includes
“the authority to determine the particular duties to be assigned
[to an employee], when work assignments will occur, and to
whom or what positions . . . duties will be assigned.” Nat’l
Treasury Employees Union, 53 F.L.R.A. 539, 567 (1997) (citing
Am. Fed’n of Gov’t Employees, Local 3392, 52 F.L.R.A. 141,
143 (1996)). Consistent with this understanding, the FLRA has
found interference with the right to assign work when a proposal
would assign tasks to specific individuals or specific offices.
See, e.g., Nat’l Treasury Employees Union, 53 F.L.R.A. at 567-
68 (proposal would require Office of Personnel to make certain
hiring decisions); Nat’l Fed’n of Fed. Employees, Local 1437,
35 F.L.R.A. 1052, 1060-61 (1990) (“NFFE, Local 1437”)
(proposal would require manager to select one member of panel
from preset list). The FLRA has also found interference when
a proposal would prohibit identified employees from performing
specific tasks, e.g., Nat’l Fed’n of Fed. Employees, Local 1482,
39 F.L.R.A. 1168, 1180-82 (1991) (“NFFE, Local 1482”)
(proposal would bar assignment of unit employees to evaluate
each other), vacated and remanded as to other matters sub nom.
U.S. Dep’t of Defense, Defense Mapping Agency, Louisville, Ky.
v. FLRA, 955 F.2d 764 (D.C. Cir. 1992), and when it would limit
when a particular task may be done, see, e.g, Nat’l Treasury
Employees Union, 17 F.L.R.A. 379, 380 (1985) (proposal
would, in some circumstances, require I.R.S. management to
delay certain audits), vacated and remanded as to other matters
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sub nom. Nat’l Treasury Employees Union v. FLRA, 810 F.2d
1224 (D.C. Cir. 1987). By contrast, the FLRA has found no
interference with the right to assign work when a proposal,
though requiring the agency to perform a particular task, does
not specify which employees will perform the task or when it
may be performed. See, e.g., Nat’l Treasury Employees Union,
43 F.L.R.A. 1279, 1293-94 (1992) (“NTEU”) (proposal would
require managers evaluating job candidates to document basis
for ratings given, but would allow agency to choose who
conducts evaluations); Am. Fed’n of Gov’t Employees, Local
1759, 29 F.L.R.A. 261, 263 (1987) (“AFGE, Local 1759”)
(proposal would require unspecified employee to staff desk
where other employees could check personal items); Ill. Nurses
Ass’n, 27 F.L.R.A. 714, 727-28 (1987) (proposal would require
an unspecified agency employee to review documents submitted
by union).
The FLRA’s explanation of these and like decisions
confirms that whether a proposal interferes with the right to
assign work turns on whether the proposal specifies which
employees will (or will not) perform a task or when employees
may perform the task. In one decision, for instance, rejecting an
agency claim that a proposal interfered with the right to assign
work, the FLRA explained that the proposal left “the Agency .
. . total discretion to assign” the task at issue to any employee.
Ill. Nurses Ass’n, 27 F.L.R.A. at 727. In another decision, a
proposal fell “within the duty to bargain” because it did “not
prescribe any specific duties to be performed by” specific
individuals. AFGE, Local 1759, 29 F.L.R.A. at 263. According
to the FLRA, it “has consistently held that when a proposal
requires that a particular employee or a particular office perform
a designated duty, it . . . interferes with management’s right to
assign work.” NFFE, Local 1437, 35 F.L.R.A. at 1060.
In this case, even though nothing in the union proposals
specifies which BLM employees are to process the documents,
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the FLRA found the proposals non-negotiable, explaining that
“proposals and provisions that require” agency personnel to
perform a task “affect the right to assign work.” NFFE, Local
951, 59 F.L.R.A. at 953. Echoing the dissent, the locals argue
that this conclusion runs directly counter to FLRA precedent.
By suggesting that a proposal could interfere with the right to
assign work just because it requires agency personnel to
implement, the locals add, the decision here “expands the long-
standing . . . test” for interference with the right without
announcing “a change in [the FLRA’s] analysis.” Petitioner’s
Br. at 12. We agree with the locals.
The FLRA has repeatedly rejected the argument that it now
embraces: that proposals burden the right to assign work
whenever they would require work by agency personnel to
implement. In Illinois Nurses Ass’n, for instance, the FLRA
noted that if accepted, such an argument “would mean that any
proposal which required management to take some action . . .
would interfere with management’s right to assign work.” 27
F.L.R.A. at 727. “Construed in this way,” the FLRA continued,
management’s right to assign work “would completely nullify
the duty to bargain because no obligation of any kind could be
placed on management by negotiation.” Id. at 727-28. The
FLRA reiterated this point in National Federation of Federal
Employees, Local 2099, 35 F.L.R.A. 362 (1990), which
addressed an agency’s claim that requiring evaluation of
candidates for promotion by panels, as opposed to individuals,
would affect management rights. “To conclude that a proposal
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.” Id. at 366. In still another case, the agency
claimed that the task proposed by the union—documentation of
negative employee appraisals—would interfere with the right to
assign work, emphasizing that the requirement would constitute
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an “onerous” burden. Nat’l Treasury Employees Union, 47
F.L.R.A. 705, 715 (1993). The FLRA rejected this argument,
again explaining that proposals “do not directly interfere with
the right to assign work merely because they [would] obligate
the agency to assign someone to implement” them. Id. at 719.
Ignoring these cases, the FLRA now claims that it has
always viewed proposals that would require work by agency
personnel as interfering with the right to assign work unless the
tasks involved were either “ministerial” or incidental to other
work the employees performed. NFFE, Local 951, 59 F.L.R.A.
at 954. The cases the FLRA cites, however, lend no credence to
this revisionist view. In Professional Airways Systems
Specialists, 59 F.L.R.A. 25 (2003), which the FLRA cites for the
proposition that it has previously found interference when an
agency must assign unspecified employees to perform a task, the
union never disputed that its document-related proposals
interfered with the right to assign work, so the Authority had no
need to decide whether they in fact caused such interference. Id.
at 28. In support of its contention that it has found proposals
requiring work by agency employees to be negotiable only
where the work at issue was either “ministerial” or incidental to
some other task, the FLRA cites three decisions, NTEU, 43
F.L.R.A. at 1293-94, Patent Office Professional Ass’n, 47
F.L.R.A. 954, 958-59 (1993) (“POPA”), and American
Federation of Government Employees, 43 F.L.R.A. 836, 844-45
(1991). But two of these cases—NTEU and POPA—rest
explicitly on the fact that nothing in the proposal specified
which employees must perform the tasks involved. In NTEU,
the FLRA held that “because the proposal does not
impermissibly specify who will implement the procedure,” it
“does not . . . interfere with management’s right to assign work.”
43 F.L.R.A. at 1294. In POPA, because the union’s proposal
left “the Agency . . . free . . . to designate whomever it chooses
to” perform the task, the FLRA found “no basis on which to
conclude that” it “limits the Agency’s right to assign work.” 47
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F.L.R.A. at 958-59. Although the third case, American
Federation of Government Employees, does note that the
proposal was procedural and consistent with existing
regulations, 43 F.L.R.A. at 845, nothing in the decision suggests
that interference with the right to assign work occurs where, as
here, the proposal does not specify which employees will
perform the tasks at issue.
In its opinion here, the FLRA says that in no decision has it
“directed parties to negotiate over a proposal that required an
agency to collect, collate and redact nearly 10,000 documents.”
NFFE, Local 951, 59 F.L.R.A. at 954. Elaborating in its brief,
the FLRA insists that “[i]t was eminently reasonable for the
Authority to conclude that the conceded massive and
unprecedented redirection of staff resources that would
necessarily result from implementing these proposals would
affect the Agency’s ability to determine the duties to be assigned
to its personnel.” Respondent’s Br. at 15. Yet in every one of
the cases discussed above where the FLRA found no
interference with the right to assign work, the proposals at issue
would have required “redirection of staff resources.” See supra
at 6-9. Equally important, under FLRA precedent, the burden on
agency personnel has no bearing on whether a proposal
implicates the right to assign work. The FLRA cites no case,
nor have we found one, where the magnitude of the burden
influenced the Authority’s analysis. Indeed, as we indicated
above, the FLRA ruled in one case that the union proposal did
not interfere with the right to assign work even though the
Agency had claimed that the proposal would impose an
“onerous” drain on staff resources. Nat’l Treasury Employees
Union, 47 F.L.R.A. at 715, 719. Because a proposal’s burden
has no bearing on whether the right to assign work has been
interfered with, it makes no difference whether the proposals at
issue in this case would require BLM to “collect, collate and
redact . . . 10,000 documents,” NFFE, Local 951, 59 F.L.R.A. at
954, or ten documents.
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In sum, though the FLRA must either follow its own
precedent or “provide a reasoned explanation for” its decision to
depart from that precedent, Local 32, Am. Fed’n of Gov’t
Employees v. FLRA, 774 F.2d 498, 502 (D.C. Cir. 1985), here it
has done neither. Contrary to the FLRA’s position, past
decisions have found interference with the right to assign work
only when the proposal would restrict who performs a task or
when a task may be performed, and with good reason. In
passing the FSLMRS, Congress sought “to promote collective
bargaining and the negotiation of collective bargaining
agreements,” Dep’t of the Navy, Marine Corps Logistics Base,
Albany, Ga. v. FLRA, 962 F.2d 48, 59 (D.C. Cir. 1992), and the
Chairman of the Subcommittee on Civil Service, a key supporter
of the compromise management rights provisions Congress
adopted, see Office of Personnel Mgmt. v. FLRA, 864 F.2d 165,
168 (D.C. Cir. 1988), explained that these provisions constitute
“narrow exception[s] to the general obligation to bargain,” 124
Cong. Rec. 29,187 (1978) (statement of Rep. Clay). See also id.
at 29,198 (statement of Rep. Ford) (explaining that management
rights provisions should “be narrowly construed”). While
FLRA precedent comports with this understanding of the
statute’s purpose and management rights provisions, the
Authority’s conclusion that the proposals here interfere with the
right to assign work does not. After all, “[i]f an [agency] was
released from its duty to bargain whenever” a proposal requires
work by agency personnel, or even just when implementation of
the proposal would cause “hardship, the [agency’s] duty to
bargain would practically be non-existent in a large proportion
of cases.” Am. Fed’n of Gov’t Employees v. FLRA, 785 F.2d
333, 338 (D.C. Cir. 1986) (per curiam). In this case, because
nothing in the union proposals would require any particular
BLM employees to process the documents, the FLRA should
have directed BLM to present its concerns about the proposals’
burden at the bargaining table and, should it fail to resolve those
concerns satisfactorily, to bring the dispute to the Impasses
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Panel. By instead finding that the proposals interfere with the
right to assign work, the FLRA has produced a result precisely
opposite to the one Congress intended: it has restricted
collective bargaining and converted the management rights
provisions from “narrow exception[s]” into major obstacles to
collective bargaining.

III.
We grant the petition for review and remand to the FLRA
with instructions to direct BLM to bargain over the union
proposals.
So ordered.