File 2: Opinion of Member Pope
[ v59 p259 ]
Opinion of Member Pope, dissenting in part:
By its decision in this case, the majority ignores the Authority's responsibility to review arbitration awards on the "very narrow grounds" provided by the Statute. S. Rep. No. 95-1271, 95th Cong., 2d Sess. 153 (1978). It also upholds a portion of the award to which an exception has been filed without actually resolving the exception. In so doing, the majority parses this award in an entirely different way than in previous cases while, at the same time, proclaiming that it is taking the exact same action it previously took. In the end, the majority's decision in this case will bring more confusion and less stability to an important area of the law.
To begin, the majority errs in finding that the award fails to draw its essence from the agreement. By this finding, the majority compounds the error it committed in SSA, Lansing, Mich., 58 FLRA 93 (2002) (SSA, Lansing), continuing its predilection to engage in de novo contract interpretation. By doing so, the majority abandons the Authority's statutory responsibility to review arbitrators' awards under the narrow grounds set forth in the Statute and does real damage to both the essence standard and the rigor with which it has been applied for over two decades. Moreover, the majority's conclusion that the written warning directed by the Arbitrator is deficient because it does not constitute discipline within the meaning of the parties' agreement is baseless. Nothing in the parties' agreement either defines "discipline" or prohibits the issuance of written warnings. As in SSA, Lansing, the agreement is silent with respect to written warnings. There is simply no question that, if the essence standard were fairly and evenhandedly applied, then the award would not be found deficient. See, e.g., United States Dep't of HUD, Denver, Colo., 53 FLRA 1301, 1314 (1998); Dep't of HHS, SSA, Louisville, Ky. Dist., 10 FLRA 436, 437 (1982). Accordingly, I would deny th