File 2: Opinion of Member Armendariz
[ v61 p117 ]
Dissenting Opinion of Member Armendariz:
I would find the award deficient as inconsistent with the right to assign work under § 7106(a)(2)(B) of the Statute. Accordingly, I dissent.
It is well established that an agency's right to assign work includes the right to assign employees to attend job-related training during duty hours and the right to determine the type of training that is appropriate. See, e.g., AFGE, Local 1923, 44 FLRA 1405, 1431 (1992). Proposals requiring agencies to provide employees with training concerning the duties and responsibilities of their positions directly interfere with management's right to assign work. See, e.g., NFFE, Local 29, 45 FLRA603, 611 (1992).
In this case, it is not disputed that the training that the Arbitrator ordered the Agency to provide is job-related and would occur during duty hours. Accordingly, the award affects management's right to assign work. See, e.g., United States Dep't of the Army, United States Army Aviation & Missile Command, Redstone Arsenal, Ala., 58 FLRA400, 404 (2003); AFGE, Local 1345, 48 FLRA168, 185 (1993).
As the award affects the right to assign work, it is necessary to apply the framework set forth in United States Dep't of the Treasury, Bureau of Engraving & Printing, Wash., D.C., 53 FLRA146 (1997) (BEP). Under that framework, the Authority first examines whether the award provides a remedy for a violation of either an applicable law, under § 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. BEP, 53 FLRAat 153. If it does, then the Authority examines whether the arbitrator's remedy reflects a reconstruction of what management would have done if management had not violated the law or contractual provision at issue. Id. at 154.
Even assuming that the provisions addressed by the Arbitrator constitute an arrangement within the meaning of § 7106(b)(3), I would find, on balance, that the Arbitrator's interpretation of the provisions excessively interfere with the right to assign work. In this regard, the Agency asserts, among other things, that the award would substantially impact the Agency by requiring it to triple the number of instructors required to conduct training and provide additional personnel to develop and implement training material. In addition, the Agency claims that no evidence has been provided to show that additional training is required beyond that which is already furnished.
Although additional training may well constitute a benefit to employees, the burden imposed on the [ v61 p118 ] Agency by the award outweighs that benefit. Specifically, the award would require that all employees receive training for a full day, several times a year, without regard to whether other duties must be performed at the JFK Port of Entry. The award leaves no room to accommodate the exigencies of work. On this basis, I would find the award deficient and set it aside. [*]
Footnote * for 61 FLRA No. 22