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File 3: Opinion of Member Pope

[ v58 p38 ]

Concurring Opinion of Member Pope:

      I agree that the Respondent violated the Statute by implementing the change in assignment of receptionist duties on the ground that, at the time of the change, a negotiable proposal (Proposal 2) was pending. In my view, there is an additional ground supporting the conclusion that the Respondent acted unlawfully.

      It is clear that an agency violates the Statute if it implements changes in conditions of employment while negotiations are pending. See, e.g., United States DOJ, INS, Wash., D.C., 56 FLRA 351, 357 (2000) (INS); see also United States INS, Wash., D.C., 55 FLRA 69, 73 (1999) (agency was obligated to notify union that it considered bargaining at impasse and intended to implement changes). In INS, after the agency incorporated some of the union's proposals into a draft of its proposed policy, the union submitted additional proposals. Without responding to the additional proposals or declaring them nonnegotiable, the agency implemented the new policy. In concluding that the agency violated the Statute, the Authority found that:

[I]t was incumbent upon the [r]espondent to inform the [u]nion . . . that negotiations had been concluded, along with the basis for that view. The [u]nion could have then responded with revised proposals, a request for assistance from FMCS or FSIP, a negotiability appeal, or a pre-implementation ULP charge, if necessary. The bargaining process requires . . .communication, so that the parties may avail themselves of appropriate options, ultimately leading to lawful implementation.

INS, 56 FLRA at 357.

      In this case, the Respondent participated in two bargaining sessions with the Charging Party over the proposed change and never informed the Charging Party that it considered the negotiations either complete or at an impasse. The Respondent also never informed the Charging Party that it intended to implement the rotation plan. Nevertheless, the Respondent implemented the plan.

      In these circumstances, I would find that the Respondent violated the Statute. In particular, I would reject the Respondent's contention that, at the time of implementation, only nonnegotiable proposals remained because it had agreed to all of the Charging Party's negotiable proposals. In fact, there is no evidence that the parties ever reached agreement. [n*]  As noted above, the parties never reached agreement during bargaining, and the Charging Party never signed the proposed supplement. The Respondent cannot create an "agreement" by accepting proposals previously rejected without at least communicating to the Charging Party its intent to do so. The Respondent also cannot implement that "agreement" without notice to the Charging Party. Here, the Respondent did neither. Consequently, apart from the negotiability of Proposal 2, the Respondent violated the Statute.

File 1: Authority's Decision in 58 FLRA No. 10
File 2: Opinion of Chairman Cabaniss
File 3: Opinion of Member Pope
File 4: ALJ's Decision

Footnote # * for 58 FLRA No. 10 - Opinion of Member Pope

   Accordingly, I agree with the Judge that the Respondent's contractual defense based on Article 5.06(2) must be rejected.