File 2: Opinion of Member Pope
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Dissenting Opinion of Member Carol Waller Pope:
Although I agree with the majority that the award affects management's right to assign work and that the contract provision at issue is an arrangement for adversely affected employees, I do not agree that the award is deficient. 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, 116-17 (2002) (BOP, Oklahoma City), that the abrogation test -- not the excessive interference test -- is appropriate to determine whether Article 18 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, 288-90 (2003) (Member Pope, dissenting).
Applying the abrogation test, I would find that the award does not abrogate the Agency's right to assign work. In this regard, as noted by the majority, the Arbitrator interpreted Article 18, § d.2.d. to "[provide] that the roster committee . . . consider preference in order of seniority." Majority Opinion at 7,