File 2: Opinion of Member Pope
[ v59 p618 ]
Dissenting Opinion of Member Carol Waller Pope:
The majority declines to follow controlling precedent, based on a wholly unsupported finding that the Arbitrator lacked authority not only to interpret the parties' agreement but also to clarify the meaning of his own words. Accordingly, I dissent.
In my view, Corps of Eng'rs, United States Army Eng'r Dist., New Orleans, La., 17 FLRA 315, 315-16 (1985) (Corps of Eng'rs), directly controls here and demonstrates that the Arbitrator clarified, rather than modified, the original award. In Corps of Eng'rs, the Authority found that it was appropriate for an arbitrator to clarify that a letter of warning was intended to be letter of reprimand. The Authority stated that there was no limitation in Corps of Eng'rs on the arbitrator's authority "to clarify the intent of his award after it was issued." Id. at 316. Here, the Arbitrator did the same thing as the arbitrator in Corps of Eng'rs: he clarified that the written warning was intended to be an official reprimand.
In finding that Corps of Eng'rs does not govern this case, the majority effectively finds that SSA, Lansing, Mich., 58 FLRA 93 (2002) (SSA Lansing) -- a decision in which I dissented -- established that a "warning" can never constitute a "reprimand" under the parties' agreement, even if an arbitrator states his intent that the word "warning" means "reprimand." This approach completely ignores arbitral authority, confirmed in Corps of Eng'rs, to clarify the intent of an award. It eliminates this Arbitrator's (and future arbitrators') authority to clarify what he means by his own words. It is plainly wrong for the Authority to substitute its judgment for the Arbitrator's in this regard.
As there is no substantive difference between Corps of Eng'rs and this case, I would apply that precedent and find that the Arbitrator was not functus officio when he issued the clarification of the original award.
In addition, I would deny the Agency's remaining exceptions. First, the award, as clarified, provides for an official reprimand, and official reprimands are expressly permitted by Article 23, Section 4 of the parties' agreement. [*] See Exceptions, Exhibit B at 1. Therefore, I would deny the Agency's essence exception. Second, it is well established that a just cause provision, like that enforced by the Arbitrator, is an appropriate arrangement under § 7106(b)(3) of the Statute and that mitigating discipline "operates in effect to reconstruct what management would have done if it had complied with" the just cause provision. See United States Dep't of Energy, S.W. Power Admin., Tulsa, Okla., 56 FLRA 624, 625-26 (2000). Thus, applying United States Dep't of the Treasury, Bureau of Engraving & Printing, Wash., D.C., 53 FLRA 146, 151-54 (1997) (BEP), I would deny the Agency's exception asserting that the award is contrary to management's right to discipline. Finally, I would deny the Agency's exception that the award is deficient as inconsistent with the Table of Penalties. Assuming, without deciding, that the Table constitutes an Agency regulation -- collective bargaining agreement provisions, not Agency regulations, govern the disposition of matters to which they both apply. See United States Dep't of Transp., FAA, Mike Monroney Aeronautical Ctr., 58 FLRA 462, 464 (2003) (Chairman Cabaniss concurring). Therefore, the contract provision enforced by the Arbitrator governs over any conflicting Agency regulation.
For the foregoing reasons, I dissent and would deny the Agency's exceptions.