File 2: Opinion of Chairman Cabaniss
[ v58 p37 ]
Dissenting Opinion of Chairman Cabaniss:
I respectfully dissent from my colleagues as to whether the Respondent's conduct created a violation of its Statutory bargaining obligation. In that regard, I disagree with the conclusion that Proposal 2 constituted a negotiable proposal on which the Respondent was obligated to bargain.
As noted by the majority, proposals permitting an agency to determine what employees are qualified to perform certain work in question (thereby determining the pool of employees among which the work can be rotated) are negotiable: proposals that do not so permit, aren't. However, being "qualified" to perform the work is not the issue presented. Few would doubt that management officials, and professional employees in the bargaining unit, are "qualified" to perform the receptionist duties involved in this matter. Rather, the concern is the ability to require the Agency to assign these receptionist duties to all HUD employees in the organization, regardless of status and regardless of how available those employees might be.
The proposal at issue here states that "[a]ll HUD employees assigned to the Cleveland HUD Office shall staff the position of receptionist on a fair and equitable basis." Judge's Decision at 4. The same Union witness cited by the majority also testified that this proposal extended only to bargaining unit employees, but the Judge noted expressly that this Union witness was not at the bargaining table and that, in fact, the Union never advised the Agency that the proposal meant anything other than what its express language said, i.e., that "all employees" at the HUD Cleveland office would be required to perform receptionist duties. Id. at 5 n.7.
In weighing the benefits afforded these employees versus the impact on the Agency from this proposal, I have no doubt that the proposal excessively interferes with the Agency's right to assign work. Look at the facts underlying the Judge's decision. The employees identified by the Agency initially, to perform the rotating clerical duties, did not have enough work to do to already fill up their work day. See id. n.5. In place of those underemployed individuals performing this work, the proposal would instead require the Agency to utilize "[a]ll HUD employees assigned to the Cleveland HUD office" without regard to whether those employees were managers or supervisors, or GS-13 to GS-15 bargaining unit members, or how busy these other employees might otherwise already be. Under these circumstances, I see slight benefit to the four underutilized employees initially identified to do this work, and significant disadvantage to the Agency from having to be compelled to rotate this work among all of its employees at the HUD Cleveland Office. I also recognize the obvious inconsistency with the Statute's requirement that we be mindful of the need for "an effective and efficient Government," 5 U.S.C. § 7101(b), as the majority decides to require the Agency to assign receptionist duties to its managers, supervisors, and GS-13 to GS-15 bargaining unit employees, while these four employees remain underemployed.
Therefore, consistent with the above, I would find that the one proposal in question is outside the Agency's duty to bargain. Accordingly, I would find that no bargaining obligation remained for the Agency to fulfill and thus no statutory violation of its duty to bargain.
I also conclude that the Agency's fulfillment of its statutory duty to bargain was not compromised by its failure to communicate better with its exclusive representative. Clearly, a cover memo explaining that it was conceding the Union's position on all but the one proposal would have helped the Agency in its dealings with the Union, as would some telephone calls between the parties, calls which either side would have been well served to have initiated. However, none of this takes away from the conclusion that the Agency's statutory duty to bargain was satisfied by its handling of the Union's bargaining demands. And, in that regard, I find it hard to fault a conclusion that bargaining is over where one party has agreed to all of the other side's proposals (save those outside the duty to bargain), and there has been no expression during the bargaining process of anything other than a desire to file a negotiability appeal. [n*] Even assuming, without deciding, that the Union had the right to submit additional proposals at that late hour, nothing was ever identified. Therefore, I would find no violation of any statutory duty to bargain based upon the facts before us in this matter.