File 2: Opinion of Member Armendariz

[ v61 p485 ]

Concurring Opinion of Member Armendariz:

      I write separately because, while I agree that the petition for review should be dismissed, I would find that all of the proposals -- including Proposal 2 -- affect management's right to assign work.

      Consistent with the parties' explanations of the proposals and my understanding as to the manner in which they would operate, they would all effectively preclude the Agency from assigning work to employees unless or until certain preconditions had been met. Specifically, as to Proposals 1 and 3, they would prevent the Agency from assigning duties before employees' position descriptions (PDs) are amended, except in emergency situations. Proposal 2, though not expressly precluding the assignment of work, would effectively do so unless a precondition had been met. In this connection, the parties agreed at the post-petition conference that Proposal 2 would require the Agency to provide certain information "prior to the Agency changing . . . critical elements, performance standards or PDs." Post-Petition Conference Record at 2. In my view, Proposal 2 would effectively preclude the Agency from including new duties in the PDs, and assigning the work attendant to such duties to employees, until the precondition of furnishing information had been met. [*] 

      In the same manner that Proposals 1 and 3 constitute substantive limitations