File 2: Opinion of Mmeber Pope

[ v60 p952 ]


Opinion of Member Carol Waller Pope, dissenting in part:

      I agree with the majority that the Charging Party's cross-exceptions should be dismissed, that the Authority should not accept the Respondent's reply brief, and that it is unnecessary to resolve the Respondent's exception regarding the SIG-Sauer Firearm. I also agree that, while the Judge erred in declining to consider the Respondent's claim that the charge was not timely, the charge was in fact timely. In disagreement with the majority, I would find that the Judge correctly held that the Respondent violated the Statute by failing to provide the Charging Party notice of, and refusing to bargain over, the reduction in remedial training hours and by repudiating a memorandum of understanding (MOU) requiring bargaining. To remedy the Respondent's violations, I would order status quo ante relief. Accordingly, I dissent in part.

      As an initial matter, I would reject the Respondent's claim that there was no change in the number of remedial training hours. The Judge found -- based on undisputed testimony by the Union President -- that the parties agreed to increase the hours of remedial training from 8 to 80 hours and that, therefore, the requirement for 80 hours' training was not a typographical error. The Respondent has not demonstrated that this finding was in error.

      I also would find, contrary to the majority, that the Judge correctly found that the change was not de minimis. The Respondent reduced the number of hours of remedial training involving a critical job skill -- firearms qualification -- by 90 percent. As the Respondent does not dispute that failure to pass firearms qualification results in termination, the effect of the change, on its face, is more than de minimis. Indeed, the effect is more significant than others previously found by to be more than de minimis. See, e.g., United States Dep't of HHS, SSA, Balt., Md., 36 FLRA 655, 668 (1990) (change in seating assignments including move of four employees and one employee's loss of access to a window).

      The majority downplays the effect of the change on employees by relying on two factors. First, the majority finds that the GC failed to establish that any employee was terminated "solely" based on failure to satisfy the firearms training requirement. Majority Opinion at 21. Second, the majority finds that the Respondent's termination of several employees after receiving only 8 -- not 80 -- hours' training cannot establish that the change is more than de minimis because those employees were not in the Charging [ v60 p953 ] Party's unit. See id. at 22 n.9. This reasoning is unsound because the two factors the majority relies on are not relevant.

      As for the first factor, the disputed change is the reduction in remedial training, not the termination of employees. The fact that employees are terminated -- even in part -- for failure to successfully complete training establishes the significance of the training.

      As for the second factor, testimony that any employees were fired after receiving training pursuant to the exact same, changed policy at issue here is relevant to and probative of the issue whether the change will likely affect other employees. The majority's holding to the contrary is both illogical and unsupported by precedent. The majority apparently believes that the Respondent likely will treat employees in the Charging Party's unit differently from others based only on unit membership. I am unwilling to do so, especially since such action would constitute unlawful discrimination against unit employees represented by the Charging Party. See, e.g., United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 36 FLRA 183, 187 (1990) ("Section 7116(a)(1) and (2) prohibits discrimination between bargaining unit and nonbargaining unit employees with respect to conditions of employment based solely on bargaining unit status."). The majority's holding on this point demonstrates its continued "inappropriate willingness to erect barriers to collective bargaining that are inconsistent with the text and purposes of the statute." National Federation of Federal Employees, FD-1, IAMAW, Local 1442 v. FLRA, 369 F.3d 548, 554 (D.C. Cir. 2004).

      For the foregoing reasons, I would find that the effect of the reduction in remedial training hours was more than de minimis. I would also find that the Judge erred in concluding that remedial training does not affect management's rights and that the change was substantively negotiable. See, e.g., NTEU, 45 FLRA 339, 358 (1992). Nevertheless, as the Respondent was required, but failed, to provide the Charging Party notice and opportunity to bargain over the impact and implementation of the change, the Judge did not err in finding that the Respondent violated the Statute. See Fed. Bureau of Prisons, Fed. Corr. Inst., Bastrop, Tex., 55 FLRA 848, 852 (1999) (Chair Segal concurring). Applying Federal Correctional Institution, 8 FLRA 604 (1982) (FCI), I would order status quo ante relief. [*] 

      Finally, I would find that the Respondent repudiated the MOU, albeit for reasons different from the Judge's. In this connection, the Judge resolved the repudiation claim by applying the -- incorrect -- standard for determining whether a "willful" violation occurred for the purposes of assessing status quo ante relief. See Judge's Decision at 21. Applying the correct standard, I would find that the Respondent committed a clear and patent breach of the MOU. As relevant here, the MOU requires the Respondent to provide the Charging Party with notice and an opportunity to bargain "to the fullest extent allowable under law and Executive Order(s)" prior to implementing "any changes in the Service Firearms Policy." Judge's Decision at 5-6. The Respondent failed to do this, and it has offered no reasonable interpretation of the MOU justifying its failure. Moreover, it is clear that the breach went to the heart of the MOU.

      For the foregoing reasons, I would find that the Respondent violated the Statute by failing to bargain over the change in remedial training and by repudiating the MOU. I also would uphold the Judge's order of status quo ante relief. Accordingly, I dissent in part.