File 2: Opinion of Member Pope
[ v58 p70 ]
Member Pope, dissenting:
I agree with the majority that, in the absence of a conflicting collective bargaining agreement provision, an agency regulation may establish a quantitative standard constituting the level of exposure to asbestos sufficient to trigger environmental differential pay (EDP). In my view, this is a straightforward application of the holding in Allen Park Veterans Admin. Med. Ctr. that an arbitrator may set a quantitative level triggering EDP "[i]n the absence of a mandated quantitative level set by applicable law or regulation or otherwise agreed to by the parties." 34 FLRA 1091, 1101 (1990).
I do not agree with the majority, however, that the Agency regulation controls in this case. In my view, the majority misapplies the basic principle that "collective bargaining agreements, and not agency rules and regulations, govern the disposition of matters to which they both apply when there is a conflict between the agreement and the rule or regulations." United Stated Dept. of Agriculture, 51 FLRA 1210, 1216 (1996) (quoting United States Dept. of the Army, Ft. Campbell Dist., 37 FLRA 186, 194 (1990) (Fort Campbell)).
The parties' agreement provides that EDP will be paid "[i]n accordance with Federal Law, Government-wide regulations and this Agreement." Award at 112 (quoting Article 26.01). As interpreted by the Arbitrator, this provision contemplates case-by-case st