File 2: Opinion of Member Pope

[ v59 p281 ]


Opinion of Member Pope, dissenting in part:

      I agree with the majority that the award of 20 hours' backpay violates the Back Pay Act. I also agree that the Agency has not established that the award fails to draw its essence from the agreement or that the Arbitrator's enforcement of the parties' compressed work schedules agreement is contrary to law, and that the Agency has not excepted to the Arbitrator's finding that it violated Article 18, Section s of the parties' collective bargaining agreement. I write separately because I disagree with the majority's conclusion that the Arbitrator's enforcement of Article 18, Section r is inconsistent with the Agency's rights to assign work and determine its internal security practices. I also disagree with the majority's decision to set aside -- and not remand -- the award to permit the formulation of an alternative remedy.

      The Arbitrator found that the Agency violated both the parties' compressed work schedules agreement and Article 18, Section r of their collective bargaining agreement by reassigning the grievant from a 4-10 work schedule to a regular, 5-day/8-hour work schedule. According to the Arbitrator, such reassignments are "contractually permissible only in emergency and crisis situations, not merely as a matter of routine." Award at 23. The Arbitrator did not specify whether this statement reflects an interpretation of what is "contractually permissible" under the work schedules agreement, Article 18, Section r, or both. However, for the purposes of this decision, I assume that the Arbitrator's statement reflects an interpretation and application, at least in part, of Article 18, Section r. In these circumstances, I agree that the award affects the Agency's right to assign work and to determine internal security practices under §§ 7106(a)(2)(B) and (a)(1) of the Statute, respectively. [*] 

      Although I agree that the award affects management's rights, I do not agree that the award is deficient as a result. In this regard, I believe, for the reasons set forth in my opinion in United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Transfer Ctr., Oklahoma City, Okla., 58 FLRA 109, 116 (2002) (BOP, Oklahoma City), that the abrogation test -- not the excessive interference test -- is appropriate to determine whether Article 18, Section r is enforceable under § 7106(b)(3) of the Statute. Moreover, as this case was litigated well before BOP, Oklahoma City was decided, I believe that 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. See United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Sheridan, Or., 58 FLRA 279, 288-89 (2003) (Member Pope, dissenting). Applying the abrogation test, I would find that, as the Arbitrator interpreted Article 18, Section r to permit the Agency to make reassignments in emergency and crisis situations, the award does not abrogate the Agency's rights to assign work and determine internal security practices. See United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Lompoc, Cal., 58 FLRA 301, 306 (2003) (Member Pope, dissenting).

      Based on the foregoing, I would find that Article 18, Section r is enforceable. In addition, for reasons noted above and in the majority opinion, the parties' compressed work schedules agreement is enforceable and the Agency's violation of Article 18, section s is conceded by the Agency. In these circumstances, even though I agree that the award of 20 hours' backpay does not reconstruct the Agency's violations, the award should be remanded for the reasons set forth in my dissent in United States Dep't of Veterans Affairs, Cleveland Reg'l Office, Cleveland Ohio, 59 FLRA No. 39 (Sep. 29, 2003). Indeed, this case is a powerful example of th inequity of the majority's approach, since that approach leaves the Union with