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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, citing Award at 9. While the majority adopts the Agency's argument that the award requires that requests be granted in order of seniority, in fact it only requires that requests be considered in this order. Further, Article 18, § d.2.d. provides that the committee "will make reasonable efforts to grant such requests. Reasonable efforts means that Management will not arbitrarily deny such requests." Award at 6 (setting out contract provisions). Thus, on its face, the contract permits the Agency to assign work for reasons other than seniority for any non-arbitrary reason. Enforcing this provision does not, therefore, abrogate the Agency's right to assign work. Further, by requiring the Agency to comply with Article 18 as he interpreted it, the Arbitrator properly reconstructed what the Agency would have done if it had not violated the parties' agreement. Accordingly, the award satisfies both prongs of BEP and is not deficient as contrary to management's right to assign work.
I would also find that the award does not fail to draw its essence from the parties' agreement. In this regard, the Agency has not demonstrated that the Arbitrator's interpretation of Article 18(f) of the parties' agreement as requiring the implementation of the procedures in Article 18(d) for establishing roster committees is irrational, unfounded or implausible.
For the foregoing reasons, 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.
File 1: Authority's Decision in 59 FLRA No. 134
File 2: Opnion of Member Pope
Footnote * for 59 FLRA No. 134 - Opinion of Member Pope
While I have agreed to apply the excessive interference
test, as a matter of now-settled precedent, in cases that were litigated after the new test was announced, see United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Institution, Fed. Satellite, Low La Tuna, Tex., 59 FLRA 374, 377-78 (2003) (Member Pope, concurring), this case was litigated prior to the announcement of the new test.