File 2: Opinion of Member Pope
[ v59 p7 ]
Dissenting Opinion of Member Carol Waller Pope:
The majority errs in rejecting the Judge's recommended decision and dismissing the complaint. The majority's decision is based on reversing the Judge on factual findings that are neither challenged nor erroneous. For the reasons that follow, I would find that the record supports the Judge's findings and deny the exceptions.
The Respondent's exceptions assert that the award preserved management's rights under § 7106 of the Statute and that Respondent's actions in implementing the award were consistent with those rights. Without resolving this argument, the majority finds that the Respondent complied with the award based on: (1) the number of vacated posts before and after the award; (2) the increase in overtime; and (3) other actions taken by the Respondent. The majority is silent on the fact that none of the Judge's factual findings regarding these issues is challenged.
The Authority's regulations provide, and the Authority has repeatedly held, that a party's failure to except to a Judge's finding constitutes a waiver of any exception to that finding. United States Dep't of the Air Force, Air Force Materiel Command, Wright-Patterson AFB, Ohio, 56 FLRA 706 (2000); 5 C.F.R. § 2423.40(d). Consistent with this, the Authority routinely adopts Judge's findings of facts in the absence of exceptions to those findings. See, e.g., United States SBA, Wash., D.C., 54 FLRA 837, 851 (1998).
The majority neither cites nor explains its failure to apply 5 C.F.R. § 2423.40(d). Instead, the majority attempts to justify its decision to review the Judge's factual findings by citing Air Force Materiel Command, Warner Robins Air Logistics Ctr., Robins AFB, Ga., 53 FLRA 1092, 1093 (1998) and United States Army Armament Research Devlpt. & Eng'g Ctr., Picatinny Arsenal, N.J., 52 FLRA 527, 531 (1996). See Majority at 6. This attempt fails. The principle applied in those decisions -- that the Authority looks to the preponderance of the record evidence in determining whether a judge's factual findings are supported by the record -- applies only where a judge's factual findings are challenged. In this case, there is no such challenge. [*]
Applying the appropriate standard -- whether the Respondent's actions are consistent with a reasonable construction of the award -- it is clear that Respondent violated the Statute. In essence, the Respondent is relitigating -- and the majority is reversing -- the Authority's decision in BOP, Marianna. However, neither that decision nor the merits of the award are before us in this proceeding. See, e.g., United States Dep't of Transp., FAA, N.W. Mountain Reg., Renton, Wash., 55 FLRA 293, 296 (1999). Consistent with the warden's concessions that management continued to vacate posts after the award just as it had before the award (Tr. at 45, 49, 50-51, 76), as well the Judge's unchallenged factual findings, there is no basis for reversing the Judge. Accordingly, I would deny the exception and affirm the Judge's decision.
Footnote * for 59 FLRA No. 3 - Member Pope's Opinion
Even if it were appropriate to review the Judge's unchallenged factual findings, the majority's conclusion that they are not supported by the record is off-base. In this regard, the Judge's undisputed statement that the "Respondent did not argue that the number of vacated posts had been reduced since the arbitration award became final and binding" (Judge's Decision at 11) is supported by testimony by the Respondent's chief security officer, Tr. at 121-22, and testimony by the warden. Tr. at 45; see also id. at 49, 50-51, 76. Similarly, the Judge's undisputed finding that it is "impossible" to determine whether the Respondent's increase in overtime was related to filling vacated positions is consistent with the fact that there was testimony both that overtime increases were due to filling posts (Tr. at 80) and that the Respondent vacated posts for the purpose of reducing overtime (Tr. at 119-21; G.C. Exhibit 2). Finally, it is unclear how -- and the Respondent does not claim that -- the creation of two medical escort positions shows compliance with the award.