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 that he had been informed by the Regional Director that those offices would be closed. Tr. at 90-92. The Acting Chief also testified that the disputed assignments were "indefinite," and that he "[did not] know how long [they would] last." Tr. at 109, 97. Consistent with this, the letters notifying the employees of their new assignments made no reference to the employees' return to their prior duties. GC Exhs. 9, 10.
Examining the record as a whole, the Respondent, who had the burden of proof on this issue, did not establish that the disputed assignments are appropriately considered details -- whether or not the OPM definition is applied. Therefore, I would find the Judge erred in concluding that the Respondent had established the disputed assignments were details under the parties' agreement. [n2] Because there is no dispute that the assignments at issue had more than a de minimis impact on the affected employees' conditions of employment and that the Respondent refused to negotiate over the assignments, I would find that the Respondent violated § 7116(a)(1) and (5) of the Statute. [n3] As it is unclear on this record whether there is work remaining in the office in question -- a matter that is relevant to resolving the General Counsel's request for a status quo ante remedy, I would remand the issue of an appropriate remedy to the Judge.
Footnote # 1 for 58 FLRA No. 56 - Member Pope's Opinion
OPM defines the term "detail" as an assignment of an employee to a different position for "a specified period" and an expectation that the employee will "return to . . . regular duties." OPM Guide to Processing Personnel Actions 14-4.
Footnote # 2 for 58 FLRA No. 56 - Member Pope's Opinion
Having found that the Respondent did not establish that the reassignments constituted details within the meaning of the parties' expired agreement, I do not address the Judge's reasoning in finding that the Respondent properly relied on the terms of the expired agreement in implementing the reassignments without bargaining with the Union.
Footnote # 3 for 58 FLRA No. 56 - Member Pope's Opinion
I disagree with Chairman Cabaniss' view that the Judge found the Charging Party's request for impact and implementation bargaining was made at the wrong level and, as a result, the Respondent was not obligated to bargain. The Judge's statement, upon which the Chairman relies, is not a finding at all. The statement addresses only term negotiations and is relevant only if, as the Judge did find and the General Counsel disputes, the parties' expired agreement provides a "covered by" defense to the Respondent's refusal to bargain over the impact and implementation of the disputed assignments. Moreover, read in context, it is clear that the Respondent did not argue that the Charging Party's request for i