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 disciplinary actions that the parties agreed the Agency could take in Article 23." Majority Opinion at 5. That is, the majority finds that the parties' failure to mention written warnings in Article 23 constitutes their agreement to prohibit arbitrators from imposing written warnings.
The illogic of this reasoning is apparent. [n1] More importantly, however, the majority's eagerness to abandon the Authority's statutory role and to interpret the contract on its own turns arbitral review under the Statute [ v58 p97 ] on its head. The majority simply ignores our precedent holding that the fact that the Authority may interpret an agreement differently than an arbitrator does not provide a basis for finding an award deficient. See, e.g., United States Dep't of Housing and Urban Dev., Denver, Colo., 53 FLRA 1301, 1314 (1998); Dep't of HHS, SSA, Louisville, Ky. Dist., 10 FLRA 436, 437 (1982).
The majority also ignores the record. According to the majority, the Arbitrator concluded that the Agency had just cause to discipline the grievants but nevertheless set aside the discipline in its entirety. This is wrong. There can be no question that the Arbitrator found the disputed suspensions improper, stating in clear and unmistakable terms that "management overreacted in the matter at hand" and that "a suspension should not have been invoked." Award at 8. The Arbitrator also did not set aside the discipline in its entirety -- the Arbitrator mitigated the suspensions to written warnings. The majority has confused the Arbitrator's finding that there was just cause for written warnings with a finding that there was just cause for the suspensions. In so doing, it distorts the award beyond all recognition. [n2]
On a related point, the majority's disposition of this matter is inconsistent with Authority precedent as it sets aside the remedial portion of the award without remanding for an alternative remedy. This effectively reinstates the suspensions even though the Arbitrator found, and the majority does not disagree, that the suspensions were improper. Authority precedent indicates that, in these situations, the award should be remanded to the parties for resubmission to the Arbitrator, absent settlement. See, e.g., AFGE, Local 2608, 56 FLRA 776, 778 (2000); United States Dep't of Def., Dep'ts of the Army & the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 42 (1998). Failing to do so here both unfairly rewards the Agency and unfairly punishes the grievants.
Consistent with the foregoing, I would deny the Agency's exception that the award fails to draw its essence from the parties' agreement.
I would also deny the Agency's exception that the award is deficient as contrary to its right to discipline under § 7106(a)(2)(A) of the Statute. In this regard, the Agency expressly concedes that Article 23 constitutes "the procedures to be followed by the Agency and appropriate arrangements for employees adversely affected by the Agency's exercise of authority." Exceptions at 4. This is consistent with Authority precedent finding just cause provisions, like the provision enforced in this case, are enforceable under § 7106(b)(3). See, e.g., United States Dep't of Energy, S.W. Power Admin., Tulsa, Okla., 56 FLRA 624, 626 (2000) (Dep't of Energy); United States Dep't of Veterans Affairs, Med. Ctr., Coatesville, Ala., 53 FLRA 1426, 1429-30 (1998). The Authority also has repeatedly held that "an arbitrator's enforcement of a just cause provision, by setting aside or reducing the disciplinary action, `operates in effect to reconstruct what management would have done had the provision been followed.'" Dep't of Energy, 56 FLRA at 626 (citing Soc. Sec. Admin., Balt., Md., 53 FLRA 1751, 1754 (1998)). Therefore, applying the two-prong test set forth in United States Dep't of the Treasury, BEP, Wash., D.C., 53 FLRA 146 (1997), the award is not deficient on this ground.
Accordingly, I dissent.
File 1: Authority's Decision in 58 FLRA No. 18
File 2: Opinion of Member Pope
Footnote # 1 for 58 FLRA No. 18 - Opinion of Member Pope
The wording of Article 23 neither prohibits the issuance of written warnings nor provides that a written warning included in an OPF cannot constitute "discipline" under the agreement. Moreover, even if Article 23 provided that written warnings cannot constitute "discipline," the majority does not explain why the Arbitrator was limited to mitigating the suspensions to an action constituting discipline. In this regard, the Agency concedes that written warnings have a legitimate place in the parties' disciplinary system. See Exceptions at 6 n.2 ("[a] written warning . . . is a step that typically precedes discipline under certain circumstances"). Further, the Union's assertion that the substance of the written warnings matches written reprimands is clearly plausible. At the very least, the majority should provide the Arbitrator an opportunity to clarify this matter rather than set aside the award at this time.
Footnote # 2 for 58 FLRA No. 18 - Opinion of Member Pope
In so doing, the majority also erroneously finds this case comparable to INS, Del Rio, 45 FLRA 926. There, the arbitrator set aside -- did not mitigate -- a suspension even though the arbitrator's "findings were tantamount to a conclusion that there was just and sufficient cause under the parties' agreement to sustain the grievant's suspension." Id. at 933. Here, the Arbitrator mitigated the suspensions to written warnings based on his clear finding that the suspensions were improper.