File 2: Opinion of Memnber Pope
[ v60 p838 ]
Opinion of Member Carol Waller Pope, concurring in part and dissenting in part:
Below, the majority held that the entire six-section proposal was nonnegotiable based on paragraph 5, which, according to the majority, impermissibly affected the Agency's right to assign work. The majority acknowledged the parties' agreement that paragraph 6 of the proposal was bargainable at the Agency's election under § 7106(b)(1) of the Statute but held that "[n]othing in Authority precedent suggests that this fact" affected the conclusion that the proposal as a whole was nonnegotiable. ACT II, 60 FLRA at 347 n.8. I disagreed with the majority's finding that paragraph 5 was outside the duty to bargain and its refusal to apply the "dominant requirement" test to assess the relationship between paragraph 6 and the rest of the proposal. Id. at 351. I stated I would find that paragraphs 1 through 5 are negotiable, that paragraph 6 is not the dominant requirement, and that, as a result, the entire proposal is within the duty to bargain.
The Union requests reconsideration, arguing that paragraph 5 is within the duty to bargain (along with paragraphs 1 through 4) and that paragraph 6 does not affect the negotiability of the proposal because it is not the dominant requirement. See Motion at 2. The majority denies reconsideration on the grounds that: (1) the Union's argument regarding paragraph 5 is an attempt to relitigate the decision below; and (2) the Un