File 3: Member Pope's Opinion
[ v58 p123 ]
Dissenting Opinion of Member Pope:
For the reasons set forth in my opinion in BOP, Oklahoma City, 58 FLRA No. 21 (2002), I believe that the abrogation test -- not the excessive interference test -- is appropriate to determine whether Article 27 is enforceable under § 7106(b)(3) of the Statute. Applying that test here, I would find that the award is not deficient as inconsistent with management's rights to assign work and determine internal security practices.
In BOP, Atlanta and BOP, Guaynabo, Article 27, as interpreted and applied by the arbitrator, permitted the Agency to leave posts vacant under certain circumstances. See BOP, Atlanta, 57 FLRA at 410-11 (Agency permitted to leave post vacant for "good reason" or if post does not contribute to safety); BOP, Guaynabo, 57 FLRA at 334 (Agency permitted to leave posts vacant in "emergency situations"). As a result, the Authority found in each case that the award did not abrogate the Agency's right to assign work, and found in BOP, Atlanta that the award also did not abrogate the Agency's right to determine internal security practices. BOP, Atlanta, 57 FLRA at 410-11; BOP, Guaynabo, 57 FLRA at 333-34.
In BOP, Oklahoma City, by contrast, the arbitrator interpreted and applied Article 27 so as to preclude the Agency, without exception, from leaving posts vacant for administrative convenience; the arbitrator provided an "exhaustive" list of considerations that would not support leaving posts vacant. 58 FLRA No. 21, slip op. at 7. Based on these constraints, the Authority majority concluded that the award excessively interfered with -- and I found that the award effectively abrogated -- the Agency's rights to assign work and determine internal security practices. Id. at 8, 23.
Like the award in BOP, Guaynabo, the award in this case permits the Agency to leave posts vacant under emergency circumstances. Further, while the Arbitrator foreclosed the agency from vacating posts based on "administrative convenience," the same term used by the arbitrator in BOP, Oklahoma City II, he did not define that term in a way that would effectively foreclose the Agency from leaving posts vacant in all circumstances. Because the award here permits the agency to act in emergencies and does not restrict it in the manner of the award in BOP, Oklahoma City, I would find that it does not abrogate the Agency's management rights to assign work and to determine its internal security practices. [n1] Further, by enforcing Article 27 as he interpreted it, the Arbitrator properly reconstructed what the Agency would have done if it had not violated the parties' agreement. See BOP, Atlanta, 57 FLRA at 411; BOP Guaynabo, 57 FLRA at 334. Accordingly, the award satisfies both prongs of BEP and is not deficient as contrary to management's rights to assign work and determine internal security practices.
I would also find that the award does not fail to draw its essence from the parties' agreement. See BOP, Atlanta, 57 FLRA at 411; BOP, Guaynabo, 57 FLRA at 334; BOP, Marianna, 56 FLRA at 471. Therefore, I would deny the Agency's exceptions.
File 1: Authority's Decision in 58 FLRA No. 22 Authority's Decision
File 2: Opnion of Chairman Cabaniss
File 3: Opinion of Member Pope
Footnote # 1 for 58 FLRA No. 22 - Opinion of Member Pope
The majority reaches the peculiar conclusion that the Arbitrator's failure to define the term "administrative convenience" in this case means that the award has the "same consequence as the exhaustive list