File 3: Opinion of Member Pope
[ v60 p350 ]
Member Pope concurring in part and dissenting in part:
I agree with the majority that the Union's proposal is not contrary to the Technician Act and that the proposal concerns a condition of employment under the Statute. For the reasons that follow, I do not agree that the proposal is inconsistent with the Agency's right to assign work. In connection with the latter point, I also believe that the majority errs in ignoring the law that applies when, as here, the parties agree that one section of a nonseverable proposal (paragraph 6 in this case) is electively bargainable under § 7106(b)(1) of the Statute.
The majority bases its conclusion that the proposal is inconsistent with the Agency's right to assign work on paragraph 5. That paragraph requires the Agency to assign military training duties by a written order that contains certain information and "is delivered to the employee no less than 30 days before the duty will begin, unless the order states facts and reasons explaining why the agency is providing shorter notice." As explained by the Union, and consistent with its plain terms, paragraph 5 does not prohibit the Agency from requiring that any particular duties be performed in any particular way. Moreover, the paragraph "expressly states that the [A]gency may relieve itself from any time frame in the proposal simply by writing a statement of facts and reasons explaining why it is doing so." Response at 7, 8.
The Authority has held that proposals providing employees notice of work assignments are negotiable procedures under § 7106(b)(2) of the Statute. See United States Department of Defense, Texas National Guard, Austin Tex., 59 FLRA 437, 439 (2003); AFGE, Local 1658, 44 FLRA 1375, 1383 (1992). This is consistent with the principle that proposals "requiring an agency to provide notifications of various matters" and/or "requiring the use of particular forms to record and assess various types of information" are negotiable procedures under § 7106(b)(2). United States Department of Defense, the Adjutant General, National Guard Bureau, Tennessee National Guard, 56 FLRA 588, 591 (2000) (citations omitted).
The majority correctly notes that in AFGE, Local 1345, 48 FLRA 168, 174 (1993) (Ft. Carson), the Authority held that the right to assign work encompasses the right to determine when the work assignments will occur, that in certain circumstances, "timing is an integral part of the right to assign work," and that a proposal that effectively prohibits the assignment of a task may not be a procedure under § 7106(b)(2). However, the majority's conclusion that under paragraph 5 the Agency is "effectively prohibited" from assigning military training duties "unless and until the Agency takes several actions" is not supported by the record. Majority Opinion at 13-14. In this regard, the Union expressly states that the Agency "may exempt itself" from the time limits in the paragraph "if it states facts and reasons for doing so," and that no training exercise must be "held in abeyance" pending impact and implementation bargaining. Petition at 4, Response at 7. See also Proposal, par. 5(5). The Union also states that, to the extent that complying with the paragraph would delay the required start of an exercise, this would constitute an "emergency" within the meaning of § 7106(a)(2)(D) of the Statute, suspending the obligation of the Agency to comply prior to the exercise. See Response at 8, 9, 13.
The Agency did not file a reply to or otherwise contest the foregoing Union explanations of how the paragraph would operate. Moreover, I find no basis -- and the majority provides none -- to construe the proposal to operate in a matter at odds with these explanations. As such, the paragraph permits the Agency to assign work prior to satisfying its various requirements where the Agency deems such assignment necessary and, as a result, is a negotiable procedure under § 7106(b)(2) of the Statute. See AFGE, Local 1658, 44 FLRA at 1383 (requiring notice of overtime held a negotiable procedure where requirement could be suspended for "mission related emergencies").
With respect to the remaining paragraphs of the proposal, I would find that paragraphs 1 through 4 are negotiable. In this regard, paragraph 1 simply sets out a definition of the term "military training duty"; it does not require the Agency to perform any specific action. Paragraph 2 requires the Agency to include military training duties in position descriptions and meet with employees concerning the matter. As with paragraph 5, paragraph 2 permits the Agency to suspend the time frames when it has reason to do so. As such, unlike the situation in Ft. Carson, 48 FLRA at 174-75, the paragraph does not affect the Agency's right to determine when work will be done. Paragraph 3 merely requires the Agency to provide the Union with a list of employees who are assigned military training duties and does not contain any requirements that would affect the assignment of work. Paragraph 4 requires that the Agency bargain over the impact and implementation of the assignment of new military training duties to [ v60 p351 ] employees. Consistent with the Union's explanation of the paragraph, these negotiations would not affect the right to assign work because the proposal does not require the Agency to delay the assignment of work while bargaining takes place. See Response at 7.
Based on the foregoing, taken individually and as a whole, paragraphs 1 through 5 do not affect the Agency's right to assign work and are negotiable.
That leaves paragraph 6, which provides that "[w]hile the [A]gency may require an employee to wear Chem Gear as an assignment of work, the [A]gency shall not require an employee to wear Chem Gear as a methods and means of performing work." While the practical meaning of this paragraph is far from clear, both parties agree it is electively bargainable under § 7106(b)(1) of the Statute. See SOP at 8; Response at 1-2. As such, and as the proposal is not severable, a question is raised whether the negotiability of the entire proposal is controlled by section 6.
Authority precedent -- which the majority completely ignores -- is clear that resolving whether the negotiability of this nonseverable proposal is controlled by paragraph 6 is accomplished by determining whether paragraph 6 is the "dominant requirement" of the proposal. [n1] AFGE, Local 1336, 52 FLRA 794, 796-801 (1996) (Member Armendariz concurring as to result but dissenting as to establishment of standard). [n2] The determination is made by addressing the interrelationship of the separate requirements to determine the requirement on which the other depends for its viability. [n3] Id. Doing so here, I would find that paragraphs 1 through 5 address the assignment of military training duties generally and paragraph 6 addresses the assignment of one such duty. As such, I would find that paragraph 6 depends on the other paragraphs for its vitality and, therefore, is not the dominant requirement. Its negotiability is, thus, determined by paragraphs 1 through 5, which I would find within the duty to bargain. [n4]
For the above reasons, I concur in part and dissent in part.
Footnote # 1 for 60 FLRA No. 73 - Opinionof Member Pope
I note the majority's unexplained statement that "nothing in Authority precedent" suggests that the parties' agreement that paragraph 6 is bargainable at the Agency's election affects its conclusion that the proposal is nonnegotiable. Majority Opinion at 15 n.8. I do not understand why the majority refuses to specify the "precedent" to which it refers or explain how that precedent supports the majority's conclusion. I also do not understand why the majority insists on ignoring the clearly applicable "dominant requirement" precedent. The majority's failure to do either renders its decision arbitrary on its face. See Atchison, T & S. F. Ry. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 808 (1973) (citation omitted) (an agency has a "duty to explain its departure from prior norms" and while the agency may change those norms, if it does so, then the reasons for doing so "must be clearly set forth so that the reviewing court may understand the basis of the agency's action and so may judge the consistency of that action with the agency's mandate"). See also, e.g., Local 32, AFGE, AFL-CIO v. FLRA, 774 F.2d 498, 502 (D.C. Cir. 1985) ("[A]n agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored, and if an agency glosses over or swerves from prior precedents without discussion it may cross the line from tolerably terse to intolerably mute.").
Footnote # 2 for 60 FLRA No. 73 - Opinionof Member Pope
The dominant requirement test in AFGE, Local 1336, hasbeen subsequently applied in several cases. See Nat'l Fed'n of Fed. Employees, Local 2148, 53 FLRA 427, 436 (1997); Int'l Fed'n of Prof'l & Technical Eng'rs, Local 49, 52 FLRA 839, 842-44 (1996) (Member Armendariz concurring as to result); Int'l Fed'n of Prof'l & Technical Eng'rs, Local 49, 52 FLRA 813, 820-21 (1996) (Member Armendariz concurring as to result). See also Int'l Fed'n of Prof'l & Technical Eng'rs, Local 49, 55 FLRA 25, 27 n.3 (1998) (application of dominant requirement test would not change result); Am. Fed'n of Gov't Employees, Council of Prison Locals, Local 171, 52 FLRA 1484, 1507 n.18 (1997) (inability to apply dominant requirement test because of insufficient record). Although the test was not applied in Ass'n of Civilian Technicians, N.Y. State Council, 56 FLRA 444 (2000), the decision is silent as to the reasons for not doing so. In any event, AFGE, Local 1336 has not been reversed.
Footnote # 3 for 60 FLRA No. 73 - Opinionof Member Pope
This determination gives effect to the holding inAssociation of Civilian Technicians, Montana Air Chapter No. 29 v. FLRA, 22 F.3d 1150, 1155 (D.C. Cir. 1994) that "§ 7106(b) is indisputably an exception to § 7106(a)," which was adopted by the Authority in VAMC, Lexington, 51 FLRA 386, 392 (1995). In particular, the "dominant requirement" analysis is necessary because "adopting an approach that permits § 7106(a) rights to prevail in all instances over § 7106(b)(1) when two or more requirements are inseparable could substantially deprive VAMC, Lexington of meaning as well as deprive the Statute of its intended flexibility." AFGE, Local 1336, 52 FLRA at 799-800. The majority's refusal to acknowledge, or apply, the "dominant requirement" precedent calls into question its continued support for the principles set forth in VAMC, Lexington, and its progeny.
Footnote # 4 for 60 FLRA No. 73 - Opinionof Member Pope
In finding the proposal within the duty to bargain, Imake no judgment as to its merits. See NAGE, Local R4-45, 55 FLRA 995, 998 n.6 (1999). In fact, the cumulative effect of the proposal may well render it unreasonable. In my view, however, that issue goes to the merits of the proposal, not its negotiability, and is best resolved -- as a matter of both law and policy -- by the parties at the bargaining table and, if necessary, by the Federal Service Impasses Panel.