File 2: Opinion of Mmeber Pope

[ v60 p952 ]


Opinion of Member Carol Waller Pope, dissenting in part:

      I agree with the majority that the Charging Party's cross-exceptions should be dismissed, that the Authority should not accept the Respondent's reply brief, and that it is unnecessary to resolve the Respondent's exception regarding the SIG-Sauer Firearm. I also agree that, while the Judge erred in declining to consider the Respondent's claim that the charge was not timely, the charge was in fact timely. In disagreement with the majority, I would find that the Judge correctly held that the Respondent violated the Statute by failing to provide the Charging Party notice of, and refusing to bargain over, the reduction in remedial training hours and by repudiating a memorandum of understanding (MOU) requiring bargaining. To remedy the Respondent's violations, I would order status quo ante relief. Accordingly, I dissent in part.

      As an initial matter, I would reject the Respondent's claim that there was no change in the number of remedial training hours. The Judge found -- based on undisputed testimony by the Union President -- that the parties agreed to increase the hours of remedial training from 8 to 80 hours and that, therefore, the requirement for 80 hours' training was not a typographical error. The Respondent has not demonstrated that this finding was in error.

      I also would find, contrary to the majority, that the Judge correctly found that the change was not de minimis. The Respondent reduced the number of hours of remedial training involving a critical job skill -- firearms qualification -- by 90 percent. As the Respondent does not dispute that failure to pass firearms qualification results in termination, the effect of the change, on its face, is more than de minimis. Indeed, the effect is more significant than others previously found by to be more than de minimis. See, e.g., United States Dep't of HHS, SSA, Balt., Md., 36 FLRA 655, 668 (1990) (change in seating assignments including move of four employees and one employee's loss of access to a window).

      The majority downplays the effect of the change on employees by relying on two factors. First, the majority finds that the GC failed to establish that any employee was terminated "solely" based on failure to satisfy the firearms training requirement. Majority Opinion at 21. Second, the majority finds that the Respondent's termination of several employees after receiving only 8 -- not 80 -- hours' training cannot establish that the change is more than de minimis because those employees were not in the Charging [ v60 p953 ] Party's unit. See id. at 22 n.9. This reasoning is unsound becau