File 2: Opinion of Member Pope
[ v60 p781 ]
Dissenting Opinion of Member Pope:
I would find that the Arbitrator did not exceed his authority by concluding that the Chief's conduct at the mediation session violated Appendix F. I would also deny the Agency's remaining exceptions. Therefore, I dissent.
Under longstanding precedent, the Authority accords an arbitrator's interpretation of a stipulated issue the same substantial deference accorded an arbitrator's interpretation of a collective bargaining agreement. See SSA, Balt., Md., 57 FLRA 181, 183 (2001) (SSA, Balt.). In pertinent part, the stipulated issue before the Arbitrator was: "did management violate the terms of Appendix F . . . and, if so, what is the appropriate remedy?" Award at 1. The Arbitrator expressly interpreted the stipulated issue as involving the Chief's conduct at the mediation session:
The issue of whether [the] Chief . . . fulfilled his obligations at the mediation session . . . is also properly before the Arbitrator. There is no need for a separate formal complaint to be filed regarding that issue. What happened at the mediation occurred after the ADR request was filed, but it clearly relates to how that ADR request was processed . . . . Thus, it can be properly considered to be part of the same complaint. In addition, the issue of [the] Chief['s] . . . conduct at the mediation session at least arguably involves the question of whether management violated Appendix F . . . which requires management to take complaints of violence in the workplace seriously and to deal appropriately with them. And, whether management violated Appendix F in this case is precisely the issue that the parties stipulated was properly before the Arbitrator.
Id. at 10.
In resolving the stipulated issue on the merits, the Arbitrator found, as relevant here, that the Chief violated Appendix F "by not participating in good faith in the mediation session involving this case." See id. at 14. On its face, the award is directly responsive to the stipulated issue, both as plainly worded and as specifically interpreted by the Arbitrator. As such, Authority precedent is clear that the Arbitrator did not exceed his authority. See, e.g., SSA, Balt., 57 FLRA at 183.
The majority finds that the Arbitrator exceeded his authority because, according to the majority: (1) the Arbitrator "did not conclude that the Chief's conduct at the mediation session was part of the stipulated issue"; (2) the stipulated issue "clearly referred to the alleged grabbing of the grievant and the Chief's investigation of that incident"; and (3) the Arbitrator "found violations of the ADR programs requirements . . . to justify his finding of a violation of Appendix F." Majority Opinion at 9. For the reasons that follow, the majority is wrong on all three counts.
First, as quoted above, the Arbitrator did find that the Chief's actions at the mediation session were part of the stipulated issue. In fact, it is difficult to imagine how the Arbitrator could have been any clearer. [n1] I note, in this regard, that the Agency expressly concedes that one of the grievant's claims before the Arbitrator concerned the Chief's actions in the mediation session. See Exceptions at 1.
Second, also as quoted above, the stipulated issue does not refer in any way to the alleged grabbing of the grievant and/or the investigation of that incident. The stipulated issue asks only whether "management violate[d] the terms of Appendix F . . . ." Award at 1. It does not refer to any particular actions that allegedly violated Appendix F.
Third, the Arbitrator found that the Chief violated "not only" the ADR requirements "but also . . . Appendix F[.]" Award at 12-13. The Arbitrator did not state that the violation of Appendix F was based on the violation of the ADR requirements. Even if he had, it would be beside the point because the finding that the Chief violated Appendix F is directly responsive to the stipulated issue. [n2]
Based on the foregoing, I would find that the Arbitrator did not exceed his authority and, as the Agency's essence exception is based on the same claims, I would deny it as well. See United States Dep't of the Treasury, IRS, 60 FLRA 506, 508 (2004); United States Dep't of Labor, Wash., D.C., 57 FLRA 701, 703 (2002). I would also deny the Agency's remaining exceptions. In this regard, Authority precedent holds that arbitrators do not exceed their authority in ordering that apologies be issued to grievants. See United States Dep't of the Treasury, IRS, Midwest Region, Chicago, Ill., 42 FLRA 1098, 1103-1104 (1991); United States Dep't of Justice, United States Fed. Bureau of Prisons, United States Penitentiary, Lewisburg, Pa., 39 FLRA 1288, 1295-97 (1991). In addition, the award does not affect the Agency's right to discipline under § 7106(a)(2)(A) of the Statute because that right concerns only "employees," which term, as defined in § 7103(a)(2), excludes supervisors. See United States Dep't of the Air Force, Air Force Flight Test Ctr., Edwards AFB, Cal., 48 FLRA 74, 87 (1993).
In sum, I would deny the Agency's exceptions in their entirety.
File 1: Authority's Decision in 60 FLRA No. 147
File 2: Opinion of Member Pope
Footnote # 1 for 60 FLRA No. 147 - Opinion of Member Pope
The majority states that the Arbitrator "found only that the Chief's conduct at the mediation session `arguably' involved" Appendix F. Majority Opinion at 9 (citing Award at 10). This takes one sentence of the award out of context. In fact, the Arbitrator found that the Chief's conduct "at least arguably" involved Appendix F, which is a stronger statement than the majority's selective quotation. It also ignores the full award, which leaves no doubt that the Arbitrator found the conduct at the mediation session properly before him.
Footnote # 2 for 60 FLRA No. 147 - Opinion of Member Pope
There is no basis to find that the Arbitrator based his remedy on the violations of the ADR requirements and merely "couched" the remedy in terms of Appendix F. Majority Opinion at 10. The majority's statement to the contrary is grou