File 2: Opinion of Member Pope
[ v58 p96 ]
Dissenting Opinion of Member Pope:
In finding that the remedial portion of the award fails to draw its essence from the parties' agreement and setting it aside, the majority mocks the Authority's statutory mandate to review arbitral awards on grounds "similar to those applied by Federal courts in private sector labor-management relations." 5 U.S.C. § 7122(a)(2).
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). Consistent with this, the Authority has, consistently since its inception, reviewed arbitral awards under the extremely deferential standards adopted by the Federal courts. United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990); see, e.g., Paperworkers v. Misco, Inc., 484 U.S. 29, 38 (1987) ("as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision").
Here, the majority engages in de novo contract interpretation with barely a nod to this undisputed principle. In this regard, the majority finds the award deficient because the Arbitrator mitigated the disputed suspensions to written warnings and, in the majority's view, that remedy "does not comport with any of the d