File 2: Opinion of Member Pope
[ v59 p254 ]
Opinion of Member Pope, dissenting in part:
I agree with the majority that the award of back pay is inconsistent with the Back Pay Act and that the Agency's additional exception challenging the remedy need not be addressed. I do not agree, however, that the award should be set aside. The majority's decision to set aside, and not remand, the award robs the grievants of any redress for the contractual violation that was found by the Arbitrator and that the majority leaves undisturbed. In so doing, the majority jettisons years of Authority precedent favoring remands in situations such as the one in this case without adequate justification. In addition, the majority fails to provide a coherent standard to govern its decisions in future cases. As a result, the majority opinion is arbitrary and capricious and invites inconsistent and unfair decisions in future cases.
To begin, the majority's decision to set aside, and not remand, the award departs from many years of Authority precedent. In this regard, where the Authority has set aside a remedy, but left a finding of an underlying contractual violation undisturbed, the Authority consistently has remanded the matter to the parties for resubmission to the arbitrator, absent settlement. [n1] See, e.g., United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Ashland, Ky., 58 FLRA 137, 140 (2002) (Member Pope dissenting on other grounds); AFGE, Local 2608, 56 FLRA 776, 778 (2000); United States Dep't of Veterans Affairs, Med. Ctr., Coatesville, Pa., 53 FLRA 1426, 1432 (1998); AFGE, Local 1843, 51 FLRA 444, 450 n.6 (1995); VAMC, Newington, Conn., 19 FLRA 535, 537 n.2 (1985); see also United States Dep't of Agric., Fed. Grain Inspection Serv., Grain Inspection, Packers and Stockyards Admin., 58 FLRA 98, 100 (2002) ("when an arbitrator's finding of a contractual violation remains undisturbed but an award of backpay is found deficient, we normally remand for consideration of an appropriate remedy").
The majority reverses this precedent without adequately explaining why it is doing so. In this connection, the majority's rationale is solely that: (1) it is not required by the Statute to take any particular action, including a remand, when an award is found deficient; and (2) the Authority has not always remanded awards in situations such as this one. With respect to the former, the majority places great stock in the fact that neither the Statute nor the Back Pay Act compels a remand and that, instead, the Statute provides that, if the Authority finds an award deficient, then the Authority "may take such action . . . as it considers necessary[.]" 5 U.S.C. § 7122(a). With respect to the latter, the majority cites decisions issued over 15 years ago. What the majority is either unwilling or unable to articulate is why, given the facts that the Authority is free to take whatever action it considers necessary, and has previously exercised this discretion in a different way, the majority now believes that it is necessary to reverse this precedent.
There is no question that both law and equity strongly favor remands in situations such as this. As for the law, the overwhelming practice of Federal courts is to remand in similar circumstances, a practice necessary to "avoid the draconian choice of penalizing [either party] for what is, after all, the arbitrator's failure." [n2] Grand Rapids, 684 F.2d at 416. For example, in General Warehousemen & Helpers Local 767 v. Standard Brands, Inc., 579 F.2d 1282, 1294 (5th Cir. 1978), the court found that the award drew its essence from the contract but that the remedy was deficient. Rather than setting aside the award and leaving the aggrieved party empty-handed, as the majority does here, the court remanded the award for a different remedy. See id. at 1294-96. See also Industrial Mut. Ass'n, Inc. v. Amalgamated Workers, Local Union No. 383, et al., 725 F.2d 406, 412 (6th Cir. 1984) (upholding finding of violation but setting aside, and remanding, remedy). As the Supreme Court has unambiguously held, "[e]ven when the arbitrator's award may properly be vacated, the appropriate remedy is to remand the case for further [ v59 p255 ] arbitration proceedings." Major League Baseball Players Ass'n v. Garvey, 532 U.S. 504, 511 (2001) (citing United Paperworkers v. Misco, Inc., 484 U.S. 29, 40 n.10 (1987)).
As for equity, only one party is in a better position after today's decision: the agency. In virtually all of these cases, it will be the agency that will have been found to have violated a collective bargaining agreement and the agency that will be rewarded for the arbitrator's failure to construct an appropriate remedy. The union, on the other hand, will have successfully arbitrated a contract violation only to be denied a remedy as a result of the arbitrator's failure. The net effect is to "punish [the grievant] for the arbitrator's failure." HMC Mgmt., 750 F.2d at 1305.
In addition to failing to justify its decision to reverse many years of precedent, the majority fails to provide -- or apply -- a coherent standard to guide determinations as to when to remand (or not remand) awards in this or other cases where remedies are deficient but violations remain. Indeed, although the majority refuses to rule out remands in such cases, it also refuses to identify what factors would lead to a remand. The majority states only that determining an appropriate action is an "individualized judgment" based on "the facts and circumstances of each case" as well as the "guiding principle" of determining "whether an action, under the facts and circumstances presented, would promote the purposes and policies of the Statute." [n3] Majority Opinion at 12. The majority finds, in this case, "no facts or circumstances warranting a remand." Id. What the majority refuses to divulge, however, is WHAT facts and circumstances it is looking for and WHY it finds no such facts and circumstances in this case. [n4] The majority's silence on this amounts to "saying no without explanation," which fails to satisfy the standard of reasoned decision making that the Authority is required to perform. Pearson v. Shalala, 164 F.3d 650, 660 (D.C. Cir. 1999). Accord Allentown Mack Sales & Serv. v. NLRB, 522 U.S. 359, 374 (1998); Mullins v. United States Dep't of Energy, 50 F.3d 990, 992 (Fed. Cir. 1995); P.R. Sun Oil Co. v. United States E.P.A., 8 F.3d 73, 80-81 (1st Cir. 1993). Even if this silence did not render the majority's decision arbitrary and capricious -- which it does -- the fact that it is a sharp departure from precedent would push the opinion across the line from "tolerabl[y] terse" to "intolerably mute." Local 32, AFGE v. FLRA, 774 F.2d 498, 502 (D.C. Cir. 1985) (quotation and citation omitted). Accord Atchison, T. & S. F. Ry. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 807-08 (1973); Willamette Indus., Inc. v. N.L.R.B., 144 F.3d 877, 880 (D.C. Cir. 1998); Drug Plastics & Glass Co., Inc., v. N.L.R.B. 44 F.3d 1017, 1022 (D.C. Cir. 1995); NLRB v. Auciello Iron Works, Inc., 980 F.2d 804, 812 (1st Cir. 1992); Doyle v. Brock, 821 F.2d 778, 786 (D.C. Cir. 1987); Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255, 1264 (4th Cir. 1974).
Compounding its errors in this case, the majority fails to address the Agency's claims that the underlying merits award is deficient. As a result, the grievants are left remediless and both parties are left in the dark as to whether the underlying arbitral finding of a violation is even viable. Although the Agency may not be disturbed by this result, surely the grievants are, as they have successfully arbitrated a contract violation only to be denied both a remedy as a result of the Arbitrator's failure and ultimate resolution of their merits claim as a result of the majority's failure.
Addressing the Agency's exceptions, I would dismiss the claim that the Arbitrator erred in refusing to rule on the Agency assertion that the grievance was barred under § 7121(c) of the Statute. I would find that the Agency's claim before the Authority is precluded based on the Arbitrator's finding that the claim was not timely raised under the parties' agreement. In this regard, the Authority has held that a claim alleging that a grievance is barred under § 7121(c) is not properly before the Authority under § 2429.5 where an agency did not raise the claim before the arbitrator. United States Dep't of the Interior, Nat'l Park Serv., Golden [ v59 p256 ] Gate Nat'l Recreation Area, S.F., Cal., 55 FLRA 193, 195 (1999) (Dep't of Interior); see also United States Dep't of the Army, Dugway Proving Ground, Dugway, Utah, 57 FLRA 224, 227 (2001 (Chairman Cabaniss dissenting). In my view, if it is appropriate to bar a claim based on the failure to raise that claim before an arbitrator, then the failure to raise a claim timely also precludes review by the Authority. Therefore, consistent with Dep't of Interior, I would find that review of a § 7121(c)(5) claim is precluded where an arbitrator finds that an agency failed to raise such a claim in accordance with agreed-upon contractual procedures -- provided, of course, that the arbitrator's interpretation of those procedures draws its essence from the agreement. In this regard, the Agency does not dispute that it failed to timely raise its § 7121(c)(5) argument under the parties' agreement. See Exceptions at 7. Further, I would find that the award draws its essence from the parties' agreement.
I would also deny the Agency's exception that the award is inconsistent with management's right to determine its organization under § 7106(a)(1) of the Statute. In this regard, nothing in the award finding that the Agency failed to communicate and negotiate over the change to the career ladder of the disputed position affects the Agency's ability to establish the GS-10 position or to determine the grade level of Agency positions. For the same reasons, I would deny the Agency's exception claiming that the award is inconsistent with 5 C.F.R. § 511.701(a)(i): nothing in the award requires or precludes the Agency from classifying or reclassifying the disputed position.
As a final note, this sad saga may not yet be over. In particular, consistent with the majority's view that "any further action" in this case is in the "hands of the parties," the Union may attempt (and in fact the Union's only recourse in this situation may be to attempt) to file a new grievance and repeat the entire grievance process. [n5] Majority Opinion at 12. Whatever comfort this possibility may provide the majority, it should not be seen as fair or just. As one court so aptly stated:
In addition to the overwhelming legal authority favoring remand, . . . requiring the [grievant or the] Union to invoke and exhaust the burdensome and time-consuming grievance machinery once again to resolve "the remnants of a dispute which has alread