File 2: Opinion of Member Pope
[ v61 p172 ]
Dissenting Opinion of Member Carol Waller Pope:
In my view, the majority misconstrues the award, resulting in an erroneous conclusion that the award is deficient. Accordingly, I dissent.
The Agency's contrary to law argument is based on its claim that the national filing-season agreement, as interpreted by the Arbitrator to require implementation of the local MOUs providing for time-off awards, would require awards for performance that is less than "minimally successful[.]" Exceptions to 11. The Agency asserts, in this regard, that such performance does not contribute to the "efficiency, economy, or other improvement of the government." Id.
The Arbitrator found that time-off awards are not tied to a specific level of performance. See Award at 13-14. However, he did not find that time-off awards are permitted when performance is less than minimally or fully successful. In this regard, the Agency argued before the Arbitrator that an employee's performance must be "superior" in order for that employee to be eligible for a time-off award. Id. at 10. Further, the Union concedes, and conceded through witness testimony before the Arbitrator, that the local MOUs do not permit time-off awards for performance that is less than fully successful. See Opp'n at 15 & 18 (citing 1st Tr. at 140 & 2nd Tr. at 142). In these circumstances, I construe the Arbitrator's findings that volunteering is sufficient for an award, and that performance need not be at a particular level, as rejecting the Agency's argument that performance must be at a superior level. In my view, the Arbitrator was not finding that time-off awards must be given to an employee whose performance is less than minimally successful. Thus, I would reject the Agency's contrary to law exception. [*]
Similarly, I would reject the Agency's essence argument. In this connection, like its contrary to law claim, the Agency's essence argument is based on a presumption that the Arbitrator directed time-off awards for performance that is less than minimally or fully successful. For the reasons discussed above, I do not construe the award as doing so. Therefore, I would deny the exception.
Even if I agreed with the majority's construction of the award -- which I do not -- I would find no basis for setting aside the award, as the majority does. In this connection, the Union concedes, and thus the parties are in agreement, that time-off awards may not be provided to employees whose performance is less than minimally or fully successful. In those circumstances, I would find that the appropriate course of action would be to modify the award to clarify that time-off awards may not be provided to those employees. See, e.g., United States DOD Educ. Activity, 60 FLRA 254, 255, 256 (2004) (Authority modified period of backpay where union agreed with agency claim that award of backpay should commence on particular date).
For the foregoing reasons, I would deny the Agency's exceptions. Accordingly, I dissent.
File 1: Authority's Decision in 61 FLRA No. 33
File 2: Opinion of Member Pope
Footnote * for 61 FLRA No. 33 - Opinion of Member Pope
As a result, I would find it unnecessary to address whether the majority correctly interprets 5 U.S.C. § 4502(e) and 5 C.F.R. § 451.104(a) as prohibiting awards for performance that is less than minimally or fully successful.