File 2: Opinion of Member Pope
[ v60 p31 ]
Member Pope, dissenting in part:
I agree with the majority's decision to deny the Agency's contrary to law exception. However, I would also deny the Agency's other exceptions.
As to the Agency's exceeded authority claim, the stipulated issue required the Arbitrator to determine whether Article 42.03(A) of the parties' agreement required the Agency to bargain in the circumstances of this case, and he found that it did. See Award at 2, 13. Nothing in the stipulated issue or in law required the Arbitrator to address specific arguments relating to specific portions of Article 42.03(A). E.g., NTEU, Chapter 90, 58 FLRA 390, 395 (2003) (arbitrator not required to set forth specific findings supporting award). As such, the Arbitrator did not exceed his authority. For the same reason, I would reject the Agency's claim that the Arbitrator misinterpreted the parties' agreement by failing to make specific findings regarding Article 42.03(A).
In addition, the Arbitrator's specific finding that the Authority's decision in Local 3529 constituted a "third party decision" under Article 42.03(A), triggering midterm bargaining, is not irrational, unfounded, or implausible. Therefore, the award does not fail to draw its essence from the parties' agreement. See id. The Authority's deferential standard of review regarding arbitral contract interpretation, see OSHA, 34 FLRA at 575, neither requires nor permits the A