File 2: Opinion of Member Pope
[ v60 p619 ]
Dissenting Opinion of Member Pope:
I agree with the majority's conclusion that the Agency's reply is untimely and decision to deny the Agency's request that the Authority waive the expired time limit. I also agree that it is unnecessary to address whether the Agency properly reserved the right to address the excessive interference argument in its reply. However, I do not agree that the proposal does not constitute an appropriate arrangement within the meaning of § 7106(b)(3). Accordingly, I dissent.
Even assuming that certain of the adverse effects alleged by the Union, such as compromised safety and decreased work production and performance, are speculative, the employee's loss of his ability to make and receive authorized personal and work-related telephone calls at his cubicle is not a speculative adverse effect. In AFGE, Local 1122, 47 FLRA 272 (1993), the Authority held that a proposal requiring an agency to install telephones at employee workstations, in response to an agency decision to maintain fewer telephones in a new office configuration, was an arrangement for adversely affected employees. See AFGE, Local 1122, 47 FLRA at 288-89. In this regard, the Authority determined that an agency's decision to install a telephone at only one employee's cubicle adversely affected other employees who no longer were able to make and receive authorized personal and emergency telephone calls at their cubicles. The Authority determined that the proposal ameliorated the adverse effect by providing each employee with a telephone at his or her cubicle. See id. at 289.
Here, the situation is analogous to AFGE, Local 1122. It is undisputed that the employee is authorized to make and receive emergency and non-emergency personal telephone calls. See Union's Response at 3, Attach. 14. In addition, the parties acknowledge that a telephone is occasionally necessary for the employee to perform his official duties. See Union's Response at 3-4, Attach. 17; Agency's Statement of Position at 6. By providing the employee with a telephone at his cubicle, the proposal allows the employee to retain the same ability to make and receive authorized personal and work-related telephone calls as when the employee had a telephone at his cubicle. As such, the proposal ameliorates the adverse effects resulting from the Agency's exercise of its right to determine the technology of performing work. Moreover, the proposal requires the Agency to provide a telephone only to the one employee who had a telephone at his cubicle prior to being transferred to the Resource Center. Accordingly, contrary to the majority's conclusion, I would find that the proposal constitutes a sufficiently tailored arrangement.
In determining whether the arrangement is appropriate, the Authority weighs the benefits afforded to the employee under the arrangement against the burdens on the exercise of management's rights. See KANG, 21 FLRA at 31-32. As explained by the Union, the proposal benefits the employee by providing him with a telephone at his cubicle to make and receive necessary work-related telephone calls and authorized personal calls. See Union's Response at 3-4. In addition, according to the Union, the proposal does not burden the Agency because the Agency retains the discretion to determine whether the telephone will be used for work-related calls, the Agency has additional telephones and lines available for use, and the cost associated with providing the employee with a telephone at his cubicle is small. Further, the proposal requires the Agency to provide only one employee with a telephone at his cubicle.
On the other side of the balance, the Agency has failed to demonstrate that the arrangement burdens the Agency in any manner. In this regard, the Agency "reserve[d] its right" to address the excessive interference issue in its reply to the Union's response, Agency's Statement of Position at 6, but it failed to timely file its reply. As such, the Agency has provided no dispute to the Union's factual claims and has failed to provide any explanation of how the proposal excessively interferes with the Agency's right to determine the technology of performing work.
In these circumstances, I would find that the benefits afforded to the employee outweigh any burdens on the Agency's exercise of its right to determine the technology of performing its work. See AFGE, Local 1122, 47 FLRA at 283, 289-91. Accordingly, I would find that the proposal does not excessively interfere with the Agency's right to determine the technology of performing work and is negotiable as an appropriate arrangement under § 7106(b)(3). [*]
File 1: Authority's Decision in 60 FLRA No. 124
File 2: Opinion of Member Pope
Footnote * for 60 FLRA No. 124 - Opinion of Member Pope
I note that the concurrence would find that the proposal excessively interferes with the Agency's § 7106(b)(1) right because it "negate[s] the Agency's substantive determination as to what technology it will use to perform its work[.]" Concurring Opinion at 9. The concurrence neither explains this standard nor attempts to reconcile it with § 7106(b)(3), which is an exception to management's rights and includes proposals that negate -- at least in part -- exercises of those rights. See NTEU, 60 FLRA 367, 388 (2004) (Concurring Opinion of Member Pope).