File 2: Opinion of Member Pope
[ v58 p85 ]
Member Pope, dissenting in part:
By its decisions in this and the related case today, the majority takes steps both unwarranted and unusual. In so doing, the majority creates the impression that it is simply applying precedent. [n1] It is not.
At the outset, the majority acknowledges that the Authority possesses information suggesting that critical portions of the award it strikes down may be moot. Inexplicably, however, the majority refuses to take the simple steps that would determine whether those portions are actually moot. There is good reason why the majority cites no precedent for its claim that it is "the Authority's approach to mootness" to resolve potentially moot claims, rather than seek to determine from the parties whether, in fact, the claims are moot. Majority at 8. This is because it is not the Authority's approach. Instead, when the Authority has received information indicating that a case may be moot, it has "issued to the parties an order to show cause why the . . . [case] should not be dismissed as moot." 90th Reg'l Support Command, Little Rock, Ark, 57 FLRA 31, 31 (2001). See also IFPTE, Local 35, 54 FLRA 1384, 1385, 1387 n.3 (1998)(Authority raised issue of mootness sua sponte and issued order to show cause why case was not moot). The Authority has never had a policy of deliberately, and without reason, refusing to seek information from the parties on so critical an issue. Consistent with precedent, as well as prudent decision-making, I would issue an order to show cause.
I believe that the majority also errs in failing to resolve the Agency's exceptions to the portion of the Interim Order requiring the Agency to provide the Union the addresses and telephone numbers of affected employees. The majority bases its refusal to resolve these exceptions on its "view" that "the sole purpose of [the] provision was to assist the Unions' attorneys in collecting contractual attorney fees" and, as a result, that it "was superseded by the Order Concerning Remedy." Majority Opinion at 6 n.4.
There are several problems with this reasoning. First, the majority offers no basis for its conclusion that the Arbitrator ordered delivery of backpay checks to "supplant the need for individual collections by the Unions' attorneys using home addresses." Majority Opinion at 6 n.4. In particular, the majority neither acknowledges nor provides a basis for rejecting the Unions' specific claim that this information is necessary for a variety of other reasons. See Opposition at 14. Second, even if the information would be useful in collecting contractual fees, the right to collect these fees (as distinct from the method by which the fees are paid to the attorneys) is not affected by the Order Concerning Remedy. Third, the majority's decision to strike the requirement that employees' back pay checks be delivered to the attorneys makes the need for communication with the employees all the more evident. Thus, I believe this portion of the Interim Order should be resolved on the merits. I note that the effect of the majority's decision on this issue is to strike the requirement without finding it deficient. In my view, this is unsupportable.
Turning to the merits, I disagree with the majority's decision to overturn the portions of the Arbitrator's award requiring that employees' back pay checks be delivered to the Unions' attorneys. [n2] According to the majority, this payment method violates "the Authority's [prior] decisions" in this case because, under those decisions, "once the agency head declined to authorize an allotment for contractual fees, the Arbitrator could no longer order any Agency involvement with the contractual fees." Majority Opinion at 13-14. The majority supports its reasoning with references to sovereign immunity, suggesting thereby that the arbitral order may be inconsistent not only with the Authority's prior decisions but also with the Constitution. See id.
This reasoning is seriously flawed. To begin with, the Authority addressed in its previous decisions an award requiring the Agency to deduct an allotment for contractual attorney fees from employees' pay. [n3] The Authority's previous decision that the Agency could not be required to make that allotment [n4] without Agency head approval (which approval subsequently was denied) cannot, as a matter of law or logic, apply to the award in this case. That is because the award now before us directs the Agency to submit employees' entire back pay checks -- without deduction -- to the [ v58 p86 ] attorneys. As such, there obviously is no allotment involved.
In fact, the majority does not find that the award in this case would require an allotment. Nevertheless, the majority finds the award deficient on the ground that the prior decisions -- regarding allotments -- resolved the issue here. [n5] Unless an allotment is the only lawful way contractual fees may be paid to the attorneys -- an argument not advanced by any party and a finding not made by the Authority -- the majority's reasoning must be wrong. [n6]
I also disagree with the majority's decision to set aside the portion of the award providing EDP to TMDE employees. In my view, this issue is not properly before the Authority because, as the Unions argue, § 2429.5 of our regulations prohibits consideration of arguments that the Agency could have, but did not, make to the Arbitrator. The majority avoids enforcing this regulation by concluding that the Agency argument "sufficiently reiterate[s]" a claim the Agency made to the Arbitrator. Majority Opinion at 16. The problem with this is that the Agency has never previously made an argument even similar to this one. In fact, the Agency letter relied on by the majority contains no reference at all to TMDE employees or to any issue concerning liability for EDP. In that letter, the Agency objected generally to the continuing jurisdiction of the Arbitrator, asserting that further action would "exceed [his] authority . . . with respect to attorney fees." However, the Agency made no argument that the Arbitrator lacked continuing jurisdiction over liability for EDP, or that the requested award of EDP to TMDE employees would exceed his authority. The majority's unsupported conclusion to the contrary does not withstand the slightest scrutiny.
Finally, I do not agree with the majority's decision to permit either party to select a different arbitrator i