File 2: Opinion of Member Pope
[ v57 p851 ]
Dissenting Opinion of Member Pope
I do not agree that the award in this case is deficient.
It is a clear and long-standing principle that Authority review of arbitration awards is governed by the standards set forth in § 7122 of the Statute. As the Authority has acknowledged from its earliest decisions, this review is limited. See Fed. Aviation Science & Technological Ass'n, 2 FLRA 680, 682 n.1 (1980). As Congress expressly made clear, "[t]he Authority [is] authorized to review the award of the arbitrator on very narrow grounds." S. Rep. No. 95-1272, 95th Cong., 2d Sess. 153 (1978) (emphasis added). Those grounds include, as relevant here, conflict with law and regulation or deficiency on grounds similar to those applied by federal courts in private sector cases.
The majority concludes that the award is deficient because "the grievance was not arbitrable as a matter of law." Majority Opinion at 7. In so doing, the majority errs in two respects.
First, the majority offends the basic principles, set forth above, governing Authority review of arbitration awards by finding the award deficient on a ground not raised by the Agency. In this regard, the majority's stated construction of the Agency's exceeded authority exception as raising a claim that the award conflicts with law is groundless. The Agency nowhere makes a claim that is subject to such construction. The only "law" with which the Agency claims the award is inconsistent is § 7121(b)(1) of the Statute (based on the Agency's assertion that the Union did not timely request a list of arbitrators). This is not an argument made by the Agency; it is an argument made by the majority for the Agency.
Second, the majority's conclusion on the argument it makes for the Agency is wrong on the law. [n1] In this regard, § 7103(a)(9)(C)(i) of the Statute defines the term "grievance" as "any complaint" brought by a "labor organization . . . concerning the effect or interpretation, or a claim of breach, of a collective bargaining agreement." Section 7121(b)(1)(C)(i) of the Statute expressly permits a labor union to file a grievance "in its own behalf." Consistent with these statutory provisions, the Authority previously has acknowledged the propriety of resolving in arbitration a breach of contract claim resulting from a party's failure to pay an arbitrator's fees. See General Serv. Admin., 34 FLRA 1123, 1128 (1990).
In this case, the Union and the Agency are, by definition, parties to their collective bargaining agreement. There is no contention that the agreement excludes from the scope of grievance and arbitration procedures alleged breaches of Article XLIII. Likewise, as set forth above, the Statute does not exclude such grievances from the scope of permissible grievance and arbitration procedures. [n2] As a result, it is clear, in my view, that the Union acted squarely within its rights when it filed a grievance alleging that the Agency violated the parties' collective bargaining agreement by refusing to pay Arbitrator Seltzer.
As to the exceptions actually raised by the Agency, I would find, first, that the Arbitrator did not exceed his authority. The Agency argues, in this regard, that the Arbitrator exceeded his authority by awarding relief to Arbitrator Seltzer based on a grievance the Union lacked standing to file. However, the award does not expressly award relief to Arbitrator Seltzer. The award simply grants the grievance. While the indirect effect of the award, if enforced, would be payment to Arbitrator Seltzer, the fact is inescapable that the award, in and of itself, requires no such payment. [n3] The Agency's related claim that the Union lacked standing to file the grievance is also without merit. Absolutely no basis in law or contract is asserted by the Agency in support of this claim. If anything, it is a bare assertion and should be denied as such. See Social Security Admin., 57 FLRA 530, 537 n.16 (2001). [ v57 p852 ]
The Agency's remaining exceptions directly challenge the Arbitrator's determination with respect to procedural arbitrability. As such, they also should be denied. See AFGE, Local 2921, 50 FLRA 184, 185-86 (1995) (arbitrator's determination of the procedural arbitrability of a grievance is subject to challenge only on grounds other than those that directly challenge the procedural arbitrability determination).
Based on the foregoing, I would deny the Agency's exceptions. Accordingly, I dissent.
File 1: Authority's Decision in 57 FLRA No. 182
File 2: Opinion of Member Pope
Footnote # 1 for 57 FLRA No. 182 - Opinion of Member Pope
I note that the majority cites no "law" with which theaward is inconsistent. This alone renders the majority opinion infirm. I also note that the majority erroneously characterizes this case as presenting an issue of first impression. It does not present such an issue. As set forth below, there is ample precedent supporting a conclusion that the award in this case is not deficient.
Footnote # 2 for 57 FLRA No. 182 - Opinion of Member Pope
These simple facts demonstrate that the majority'sreliance on Ables v. United States, 2 Cl. Ct. 494 (1983) is misplaced. There, the plaintiff/arbitrator sought to enforce in court a collective bargaining agreement to which he was neither a party nor a third-party beneficiary. Here, the Union is a party to the agreement that it seeks to enforce through the procedures designed by law and contract for such enforcement. Put simply, Ables v. United States has nothing to do with this case.
Footnote # 3 for 57 FLRA No. 182 - Opinion of Member Pope
Even if the award directed payment to ArbitratorSeltzer, that fact would not render it deficient. In this regard, in United States Dep't of the Army, Aviation Systems Command, St. Louis, Mo., 36 FLRA 418 (1990), the arbitrator found that the agency violated the parties' agreement by refusing to bargain over its plans to construct a fitness center. As remedies, the arbitrator directed the agency to "immediately advise GSA that it was under the Arbitrator's order to desist from any further action" and to cease "advancing any funds or taking any action to authorize or advance the renovation project." Id. at 420. The Authority denied exceptions to the award, concluding that "arbitrators may properly direct an agency to take an action which is within the agency's authority and which would not violate law, rule or regulation." Id. at 425 (citation omitted). In this case, the Agency clearly has authority to pay Arbitrator Seltzer.