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 t