File 3: Member Pope's Opinion
[ v58 p306 ]
Dissenting Opinion of Member Pope:
I believe, for the reasons set forth in my opinion in BOP, Oklahoma City, 58 FLRA 109 (2002), 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. I need not restate those reasons here. I also believe, for the reasons set forth in BOP, Sheridan, 58 FLRA No. 65, that the majority misapplies its own test. In my view, both fairness and Authority precedent demand that the Authority remand this case for development of a record that permits a just application of the excessive interference test. [n1]
Applying the abrogation test, I would find, for the following reasons, that the award 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 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, 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 awards in BOP, Atlanta and BOP, Guaynabo, the award in this case permits the Agency to leave posts vacant in emergency situations and for good reason. Because the award here permits the Agency to act in emergency situations and 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 rights to assign work and to determine its internal security practices. 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. In addition, I would 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.
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. 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.
Footnote # 1 for 58 FLRA No. 69 - Member Pope's Opinion
I note that, unlike many other cases, the record in this case does contain some specific evidence regarding benefits to employees from Article 27. In particular, the record demonstrates that the Agency decided to maintain staffing in a particular post as a result of an inmate incident involving a knife. See Award at 7. Nevertheless, for reasons set forth in BOP, Sheridan, 58 FLRA No. 65, I believe that basic fairness dictates that both parties be provided an opportunity to develop a record that permits a just application of the excessive interference standard.
Footnote # 2 for 58 FLRA No. 69 - Member Pope's Opinion
Consistent with long-standing precedent, and in disagreement with the Chairman, Majority Opinion at 8 n.5, 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, 455 U.S. 945 (1982)). Unlike the award in BOP, Coleman, 58 FLRA No. 66, slip op. at 19 -- where I found that the right to assign employees was affected -- the award in this case does not require the Agency to create and fill additional posts; the award here requires only that the Agency fill the posts it has already created.