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
2

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
3

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 selfeffectuating 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
6

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,
7

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 longstanding . . . 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
8

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
11

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.