File 3: Member Pope's Opinion
[ v58 p288 ]
Opinion of Member Pope, Dissenting in Part:
I do not agree with the majority's conclusion to set aside the portion of the award concerning the Agency's decision to vacate correctional posts. I believe that the majority errs both in the test it applies to determine whether this portion of the award is contrary to management's rights, and in the manner in which it applies the excessive interference test to the facts of this case.
As for the test to be applied, I believe, for the reasons set forth in my concurring opinion in BOP, Oklahoma City, 58 FLRA 109 (2002), that the abrogation test -- not the excessive interference test -- is appropriate to determine whether Articles 18 and 27 are enforceable under § 7106(b)(3) of the Statute. I need not restate those reasons here.
As for the manner in which the test is applied, the majority concludes that Article 27 is not enforceable under § 7106(b)(3) because, as relevant here, "the benefits to employees are outweighed by the intrusion on the exercise of management's rights." Majority Opinion at 12. The majority concludes that Article 27 provides a benefit to employees by decreasing the number of vacated posts, which provides more officers to respond to inmate hazards and which increases employees' safety. The majority summarily dismisses that benefit, concluding that the burdens on the Agency's rights are "substantial and excessive" when compared to "the counterbalancing benefit" that it finds the provision would provide unit employees. Id. at 13, 14.
The majority's extensive explanation of the burdens placed on the Agency, id. at 13-14, contrasted with its limited description of the benefit provided employees by Article 27, id. at 12, demonstrates the inequity of applying BOP Oklahoma City to the existing record in this case. In this regard, the majority has manufactured the benefits and burdens it weighs in this case. This is because the record in this case was developed long before the excessive interference standard was adopted and, as a result, neither the parties nor the Arbitrator would have had any reason to believe such information was necessary. The abrogation standard, which has applied for the past 12 years (including the entire period of time in which this case has been litigated) did not require information necessary to conduct the balancing required by the excessive interference test.
Newly-adopted standards are often, but not always, applied to the cases in which the standards are [ v58 p289 ] adopted -- referred to as retroactive application. [n1] See NTEU v. FLRA, 139 F.3d 214, 219 (D.C. Cir. 1998) (NTEU). However, in cases where newly-adopted standards are applied retroactively, both fairness and the Authority's practice dictate that parties be provided an opportunity to provide information necessary to apply the new standard. See, e.g., United States INS, Wash., D.C., 55 FLRA 69, 79 (1999) (complaint remanded because record not sufficient to apply new standard regarding alleged violations of § 7116(a)(6)); United States Dep't of the Navy, Commander, Naval Base, Norfolk, Va., 56 FLRA 328 (2000) (representation petition remanded because record not sufficient to apply new standard regarding resolution of competing successorship claims); NTEU, 53 FLRA 1469, 1494-95 (1998) (award remanded because record not sufficient to apply new standard regarding statute of limitations under Fair Labor Standards Act); Dep't of the Air Force, Wash., D.C., 49 FLRA 603, 608-609 (1994) (complaints remanded because record not sufficient to apply newly-adopted particularized need standard); United States Dep't of Justice, Bur. of Prisons, Wash., D.C. & Bur. of Prisons, Fed. Correct. Inst., Ray Brook, N.Y., 46 FLRA 1002, 1009 (1992) (award remanded because record not sufficient to apply new standard regarding use of market rate for attorney fees). By not only announcing a new test but also applying it to the existing record --without permitting the parties an opportunity to provide additional information -- the majority acts arbitrarily and deprives the parties of a just resolution of their dispute.
In my concurring opinion in the "lead" case -- BOP, Oklahoma City -- I found that the award abrogated the exercise of management's rights to assign work and determine internal security practices. If the majority agrees that the award in that case would have been deficient under the abrogation test -- or if the majority concludes that any other awards that it finds deficient under the excessive interference test would also be deficient under the abrogation test -- then remands would be unnecessary because the awards would be deficient under either test. Further, the majority may find that the records developed in pending cases are sufficient to apply the excessive interference test. However, since the two tests are so different with respect to the factors to be applied, that prospect seems dim. I note, in this regard, that the excessive interference test requires "weighing the practical needs of employees and managers" in the context of "the totality of the facts and circumstances in each case." NAGE, Local R14-87, 21 FLRA 24, 31-32, 33 (1986). To that end, in applying the excessive interference test, "the Authority will expect the parties . . . to address any and all relevant considerations as specifically as possible." Id. In this and similar cases, the parties have been deprived of all opportunity to address these considerations.
Consistent with the foregoing precedent, and fairness, this and other similar cases should be remanded to the parties to develop a complete record upon which the issues raised by application of the excessive interference test can be resolved. The majority's refusal to even acknowledge this possibility or state why it will not remand the case evidences a remarkable indifference to precedent and to the injustice that results from its actions.
As noted, I continue to believe that the abrogation test should apply. Applying that test here, I would find that the award concerning the Agency's decision to vacate correctional posts is not deficient as inconsistent with management's rights to assign work and determine internal security practices. [n2] 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 [ v58 p290 ] for administrative convenience; the arbitrator provided an "exhaustive" list of considerations that would not support leaving posts vacant. 58 FLRA at 111. 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 111, 117.
Like the award in BOP, Atlanta, the award in this case permits the Agency to leave posts vacant for good reason. 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, 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 for good reason 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. Further, by enforcing Articles 18 and 27 as he interpreted them, 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. In addition, I would find that the award does not fail to draw its essence from the parties' agreement. See BOP, Atlanta, 57 FLRA 411; BOP, Guaynabo, 57 FLRA at 334; BOP, Marianna, 56 FLRA at 471.
I would further find that the award of night differential pay and Sunday premium pay does not violate 5 U.S.C. § 5545(a) and the Back Pay Act, 5 U.S.C. § 5596. With regard to § 5545(a), the Authority has routinely held that employees may receive compensation for work that they would have performed but for the Agency's violation of the contract. See United States Shipbuilding Conversion and Repair, Pascagoula, Miss., 57 FLRA 744, 746-47 (2002); Dep't of Defense Dependents Schools, 54 FLRA 259, 264-66 (1998); Veteran's Admin., Wash., D.C., 22 FLRA 612, 616 (1986). With regard to the Back Pay Act, the Arbitrator's finding that the Agency violated Articles 27 and 18 of the parties' agreement constitutes a finding of an unjustified or unwarranted personnel action. See United States Dep't of Justice, Fed. Bur. Of Prisons, Fed. Correct. Inst., Sheridan, Or. 55 FLRA 28, 29 (1998). In addition, contrary to the Agency's claims, the Arbitrator was not required to make specific findings with regard to individual employees, as the award is sufficiently limited to those employees who actually suffered a loss of differential or Sunday premium pay. See id. Therefore, I would deny the Agency's exceptions regarding the portions of the award concerning pay differentials and the Agency's decision to vacate correctional posts.
In sum, I believe that the abrogation standard should continue to apply to cases, such as this one, where resolving whether the award is deficient requires a determination whether a contract provision was negotiated pursuant to § 7106(b)(3). Applying that standard, I would deny the Agency's exceptions to the portion of the award concerning the Agency's decision to vacate correctional posts. [n3] I also believe that, unless the majority finds that the award would be deficient under the abrogation standard, the award should be remanded for development of record evidence necessary to apply the excessive interference standard fairly.
File 1: Authority's Decision in 58 FLRA No. 65 and Appendix
File 2: Chairman Cabaniss' Opinion
File 3: Member Pope's Opinion
Footnote # 1 for 58 FLRA No. 65 - Member Pope's Decision
Consistent with judicial and administrative practice, the Authority has acknowledged that applying a newly-adopted rule retroactively may be inappropriate when doing so would result in "manifest injustice." INS, Wash, D.C., 56 FLRA 721, 723 (2000) (citing United Food and Commercial Workers International Union, AFL-CIO v. NLRB, 1 F.3d 24, 34 (D.C. Cir. 1993). Although I believe that it is unjust to apply the excessive interference standard to the existing record in this and similar cases, I take no position as to whether there is manifest injustice in applying it at all.
Footnote # 2 for 58 FLRA No. 65 - Member Pope's Decision
Consistent with long-standing precedent, and in disagreement with the Chairman, Majority Opinion at 15 n.13., I would not find that the award affects the Agency's right to assign employees. See, e.g., BOP, Guaynabo, 57 FLRA at 332 (citing, AFGE, AFL-CIO, 2 FLRA 604, 613 (1980), aff'd sub nom. Department of Def. v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied<