File 2: Opinion of Member Pope
[ v61 p96 ]
Dissenting Opinion of Member Pope:
By finding that the remedial portion of the award fails to draw its essence from the parties' agreement, the majority continues down the sad path it began in Soc. Sec. Admin., Lansing, Mich., 58 FLRA 93 (2002) (Member Pope dissenting), engaging in de novo contract interpretation and completely ignoring the Authority's responsibility to review arbitration awards on grounds "similar to those applied by Federal courts in private sector labor-management relations[.]" 5 U.S.C. § 7122(a)(2). See also, Soc. Sec. Admin., Region 1, Boston, Mass., 59 FLRA 614 (2004) (Member Pope dissenting); Soc. Sec. Admin., 59 FLRA 257 (2003) (Member Pope dissenting).
The Arbitrator found that the Agency lacked just cause to impose a suspension and, as his award, mitigated the suspension to a written reprimand. In so doing, the Arbitrator carefully weighed the seriousness of the offense and the grievant's awareness of the Agency's systems access policy, as well as her long and meritorious service with the Agency, her motives, and her lack of prior discipline. The Arbitrator found that "the purpose of discipline is corrective" and that a mitigated penalty would "best assist the efficiency of the" Agency. Award at 3.
The Arbitrator's interpretation of Article 23 is consistent with the express wording of that provision, which provides, in relevant part, that "discipline is to correct and improve employee behavior so as to promote the efficiency of the service" and that "employees will be subject to disciplinary or adverse action only for just cause. Moreover, Article 23, § 4 expressly contemplates that a written reprimand is an appropriate mitigated penalty. As the award is consistent with the parties' agreement, I would deny the Agency's essence exception. [n1]
The majority finds that the award fails to draw its essence from the parties' agreement. In doing so, the majority adopts and applies its own interpretation of the agreement, that the Agency is "solely authorized" under Article 23 to determine the "degree of discipline" for "severe" behavior. Majority Opinion at 4-5. The majority finds, in this regard, that when "serious" conduct is involved, an arbitrator must uphold the Agency's choice of discipline. See id. at 5 ("having determined that the grievant[`s] . . . actions were serious, the Arbitrator was required to uphold the Agency's determination of the penalty[.]").
The majority's interpretation of Article 23 is baseless. There is no question that the Agency's exercise of authority under Article 23, like its exercise of authority under other contract provisions, is subject to arbitral scrutiny. There also is no suggestion that in the circumstances of this or any other case, an arbitrator is "required" to find for the Agency. Exercising clear arbitral authority, the Arbitrator found that the grievant's suspension violated the agreement. The majority's unwillingness to defer to the Arbitrator's reasonable interpretation of Article 23 signals its continued refusal to engage in the limited review Congress intended in § 7122 of the Statute.