File 2: Opinion of Member Pope
[ v61 p102 ]
Opinion of Member Pope, dissenting in part:
I agree with the majority's decision to find that NG-2801 Proposal 2 and NG-2802 Proposal 2 are outside the duty to bargain. However, I do not agree that NG-2801 Proposal 1 and NG-2802 Proposal 1 are outside the duty to bargain. Accordingly, I dissent.
As stated by the majority, the Authority has long held that the rights to assign employees and assign work each include the right to establish the qualifications and skills needed for positions and/or duties and to judge whether particular employees meet those qualifications and skills. See AFGE, Local 3935, 59 FLRA 481, 482 (2003). In addition, under Authority precedent, a proposal setting forth a particular method for determining qualifications, such as a test or a course, affects management's right to assign employees. See AFGE, Local 1985, 55 FLRA 1145, 1152-53 (1999); Nat'l Educ. Ass'n, Overseas Educ. Ass'n, Fort Bragg Ass'n of Educators, 53 FLRA 898, 908-9 (1997) (Fort Bragg). Specifically, the Authority has held that a proposal to delay certification requirements for a position affects management's rights to assign employees and to assign work. See NFFE, Local 1214, 40 FLRA 1181, 1187-88 (1991).
However, the Authority has also determined that where an employee has satisfied the qualification and certification requirements established by an agency, a proposal requiring the agency to provide the employee with additional monetary compensation did not affect management's right to assign employees. See Fort Bragg, 53 FLRA at 919-20. In that case, the Authority found that the proposal did not affect management's right to assign employees because it applied "only after [the] employee [was] deemed qualified by the [a]gency" to hold a particular position. Id. at 919 (emphasis omitted); see generally AFGE, AFL-CIO, Local 1923, 31 FLRA 789, 791-92 (1988); NFFE, 29 FLRA 1491, 1494-96 (1987) (where agency temporarily assigns an employee to perform higher-graded duties, a proposal requiring the agency to compensate the employee at a level commensurate with the job performed does not affect management's rights).
Here, contrary to the majority's finding, the proposals do not prevent the Agency from assigning OJT duties to employees who do not meet the Article 28 requirements. Instead, according to the Union, §§ 1(a) and (b) concern only the standards for compensating certified employees who conduct OJT. The Union also asserts that §§ 1(a) and (b) do not either limit the Agency's ability to assign an employee to conduct OJT or establish the qualifications necessary for an employee to conduct OJT. The Union's assertions are consistent with the plain wording of §§ 1(a) and (b), which set forth the requirements for when "[c]ertified OJT instructors will be compensated" for performing OJT. See Statement of Position, Attachment (Collective Bargaining Agreement, Article 28). The Union further asserts that, under §§ 1(a) and (b), the Agency is permitted to assign uncertified employees to conduct OJT without compensation and that the Agency retains "full authority" to determine whether training provided to employees is compensated, formal training, in accordance with the parties' agreement, or other training. See Union's Response at 9. The Agency does not dispute these assertions, even though it had the opportunity to do so in a reply to the Union's response. See 5 C.F.R. § 2424.32(c)(ii)(2) (failure to respond to an assertion raised by the other party will, where appropriate, be deemed a concession to such assertion).
In these circumstances, I would find that the record supports the Union's argument that, to the extent the proposals reference § 1(a) and (b), they concern only the compensation of employees conducting OJT and do not limit the Agency's ability to assign an employee to conduct formal OJT, establish the qualifications necessary to conduct OJT, or determine whether formal OJT instruction will be provided. [n1] As such, I would conclude that the proposals do not affect management's rights to assign work or employees. [n2]
Accordingly, I dissent.
File 1: Authority's Decision in 61 FLRA No. 19
File 2: Opinion of Member Pope
Footnote # 1 for 61 FLRA No. 19 - Opinion of Member Pope
In fact, the majority does not disagree. In this regard, the majority concedes that in Article 28 the parties "bargained over -- and reached agreement with respect to -- compensation for certified OJT instructors in Article 28." Majority Decision at 6.
Footnote # 2 for 61 FLRA No. 19 - Opinion of Member Pope
In light of this recommended conclusion, I would find it unnecessary to address whether the proposals constitute appropriate arrangements under § 7106(b)(3) or are negotiable pursuant to 49 U.S.C. § 106(l).