File 2: Opinion of Member Pope
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Dissenting Opinion of Member Carol Waller Pope:
The majority errs in rejecting the Judge's recommended decision and dismissing the complaint. The majority's decision is based on reversing the Judge on factual findings that are neither challenged nor erroneous. For the reasons that follow, I would find that the record supports the Judge's findings and deny the exceptions.
The Respondent's exceptions assert that the award preserved management's rights under § 7106 of the Statute and that Respondent's actions in implementing the award were consistent with those rights. Without resolving this argument, the majority finds that the Respondent complied with the award based on: (1) the number of vacated posts before and after the award; (2) the increase in overtime; and (3) other actions taken by the Respondent. The majority is silent on the fact that none of the Judge's factual findings regarding these issues is challenged.
The Authority's regulations provide, and the Authority has repeatedly held, that a party's failure to except to a Judge's finding constitutes a waiver of any exception to that finding. United States Dep't of the Air Force, Air Force Materiel Command, Wright-Patterson AFB, Ohio, 56 FLRA 706 (2000); 5 C.F.R. § 2423.40(d). Consistent with this, the Authority routinely adopts Judge's findings of facts in the absence of exceptions to those findings. See, e.g., United States SBA,