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.