File 3: Member Pope's Opinion

[ v58 p235 ]


Dissenting Opinion of Member Pope

      I do not agree with the majority that the assignments at issue constituted "details" within the meaning of the parties' expired agreement. Accordingly, I dissent.

      The majority finds that it was "reasonable for the Judge to apply the OPM definition of the term," and summarily concludes that the disputed assignments are details. [n1]  Majority at 5. In reaching that conclusion, the majority fails to address the General Counsel's argument that the Judge ignored record evidence that the disputed assignments were not details. In fact, the majority reaches its conclusion without relying on -- or even acknowledging -- any factual findings in the Judge's decision or evidence in the record.

      Addressing the General Counsel's claim, and examining the record as a whole, I would find -- whether or not the OPM definition is applied -- that the Respondent did not establish that the disputed assignments are appropriately considered details.

      It is undisputed that nothing in the parties' agreement defines the term "detail" or otherwise explains how it is to be applied. The Respondent's only evidence regarding its construction of the term "detail" is the testimony of one witness, the Acting Chief, that the disputed assignments were made "to meet mission objectives," as required by Article 16 of the Agreement. Tr. at 89, 102-03. However, the contractual requirement that all details be for mission accomplishment obviously does not mean the converse: that all actions taken for mission accomplishment are details. Similarly, the Acting Chief's testimony that he had been advised that the reassignments were not subject to the contractual limitation on involuntary details does not establish that the actions were, in fact, details. Id. at 99. The same is true of the Acting Chief's testimony that he was aware of other assignments that he considered details. Id. at 103-5.

      In addition, even if the Judge's reliance on the OPM definition of the term "detail" was reasonable, he ignored record evidence that the disputed assignments were not details. While the Judge's finding that the assignments were for a specified period is supported by the initial notifications provided to the Union, which indicated that the assignments would end on the appointment of a "new Patrol Agent in charge," that evidence is outweighed by other evidence establishing that there was no expectation that the employees would return to their prior duties. Judge's Decision at 5 (quoting GC Exhs. 2(a), 2(b)). Specifically, the Acting Chief testified that there was "no work" available in the employees' prior offices and