File 2: Opinion of Chairman Cabaniss

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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 U