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File 2: Opinion of Member Pope

[ v59 p259 ]

Opinion of Member Pope, dissenting in part:

      By its decision in this case, the majority ignores the Authority's responsibility to review arbitration awards on the "very narrow grounds" provided by the Statute. S. Rep. No. 95-1271, 95th Cong., 2d Sess. 153 (1978). It also upholds a portion of the award to which an exception has been filed without actually resolving the exception. In so doing, the majority parses this award in an entirely different way than in previous cases while, at the same time, proclaiming that it is taking the exact same action it previously took. In the end, the majority's decision in this case will bring more confusion and less stability to an important area of the law.

      To begin, the majority errs in finding that the award fails to draw its essence from the agreement. By this finding, the majority compounds the error it committed in SSA, Lansing, Mich., 58 FLRA 93 (2002) (SSA, Lansing), continuing its predilection to engage in de novo contract interpretation. By doing so, the majority abandons the Authority's statutory responsibility to review arbitrators' awards under the narrow grounds set forth in the Statute and does real damage to both the essence standard and the rigor with which it has been applied for over two decades. Moreover, the majority's conclusion that the written warning directed by the Arbitrator is deficient because it does not constitute discipline within the meaning of the parties' agreement is baseless. Nothing in the parties' agreement either defines "discipline" or prohibits the issuance of written warnings. As in SSA, Lansing, the agreement is silent with respect to written warnings. There is simply no question that, if the essence standard were fairly and evenhandedly applied, then the award would not be found deficient. See, e.g., United States Dep't of HUD, Denver, Colo., 53 FLRA 1301, 1314 (1998); Dep't of HHS, SSA, Louisville, Ky. Dist., 10 FLRA 436, 437 (1982). Accordingly, I would deny the essence exception.

      Further, assuming arguendo that the award fails to draw its essence from the parties' agreement, the majority errs in the way it addresses the remainder of the award. In this regard, the majority announces that only the written warning awarded by the Arbitrator -- and not the setting aside of the suspension by the Arbitrator -- is deficient. Thus, according to the majority:

the Agency retains the right to discipline the grievant . . . but has effectively made no decision on the penalty because both the Agency's original choice of penalty as well as the Arbitrator's deficient substitution of a written warning have been found improper.

Majority Opinion at 5. [ v59 p260 ]

      There are several things wrong with this approach. To begin, it allows the portion of the award setting aside the suspension to stand without resolving the Agency's exception that it is contrary to law. See Exceptions at 5 (Agency asserts that, consistent with management's right to discipline, "it was improper for [the Arbitrator] to set aside the discipline."). Indeed, the majority inexplicably finds both that the portion of the award setting aside the discipline "remains unaffected" and that it is unnecessary to determine whether it is deficient. Majority Opinion at 4 n.3. The majority also claims to take "the same action" it took in SSA Lansing (Majority Opinion at 4) when, in fact, it takes a surprisingly different action. In SSA, Lansing, the majority set aside the entire remedial portion. See 58 FLRA at 95. In this case, the majority states that it is setting aside the remedial portion of the award. In fact, however, the majority is setting aside only a part of the award (the substitution of a written warning for the suspension) -- leaving intact another part of the award (finding the suspension violative of the parties' agreement and setting it aside) without resolving the exception to that portion.

      The majority not only is claiming to do one thing while doing another. In addition, the majority is failing to explain why it treats this case differently from SSA, Lansing. Although it is clear that the majority prefers not to remand awards, its rationale for refusing to follow Authority precedent to the contrary remains a mystery. [n1]  Just as importantly, the majority leaves in limbo the parties in this case and fails to give guidance to parties in future cases, thereby rendering a decision that is arbitrary and capricious on its face. [n2]  See United States Dep't of Veterans Affairs, Cleveland Reg'l Office, Cleveland, Ohio, 59 FLRA No. 38, slip op. at 17, 19 n.3, 20 (Sept. 29, 2003).

      As noted above, I would deny the Agency's essence exception. I also would deny the exception asserting that the award is contrary to law because, even if the award affects the Agency's right to discipline, the award satisfies the two-prong test set forth in United States Dep't of the Treasury, BEP, Wash., D.C., 53 FLRA 146 (1997) (BEP). With regard to the first prong of BEP, the Authority consistently has found that just cause provisions, like the one enforced in this case, are enforceable under § 7106(b)(3). See, e.g., United States Dep't of Energy, S.W. Power Admin., Tulsa, Okla., 56 FLRA 624, 626 (2000) (Dep't of Energy); United States Dep't of Veterans Affairs, Med. Ctr., Coatesville, Pa., 53 FLRA 1426, 1429-30 (1998). With regard to the second prong of BEP, the Authority has repeatedly held that "an arbitrator's enforcement of a just cause provision, by setting aside or reducing the disciplinary action, `operates in effect to reconstruct what management would have done had the provision been followed.'" Dep't of Energy, 56 FLRA at 626 (quoting SSA, Balt., Md., 53 FLRA 1751, 1754 (1998)). Because the award satisfies the BEP test, I would deny the exception.

      For the foregoing reasons, I would deny the Agency's exceptions to the award. Accordingly, I dissent.

File 1: Authority's Decision in 59 FLRA No. 39
File 2: Opinion of Member Pope

Footnote # 1 for 59 FLRA No. 39 - Opinion of Member Pope

   This is the third case in which the majority has found arbitral remedies deficient but refused to remand the award. In the other two -- United States Dep't of Veterans Affairs, Cleveland Req'l Office, Cleveland, Ohio, 59 FLRA No. 38 (Sept. 29, 2003) (VA) and SSA, Lansing, Mich., 58 FLRA 93 (2002) (SSA, Lansing)-- the majority refused, over my dissents, to remand the awards.

Footnote # 2 for 59 FLRA No. 39 - Opinion of Member Pope

   As an example, the majority states that "nothing further needs to be done by the Authority" because the Agency "has effectively made no decision on the penalty . . . ." Majority Opinion at 5. Surely this is wrong. The Agency already decided on and imposed the penalty -- the suspension that resulted in the award in this case. In addition, the majority's implication is that the Agency may now institute a new disciplinary action against the grievant -- and in fact must institute a new action if the grievant is to be disciplined at all. Surely this is wasteful of the parties' and the Authority's resources. Cf. Pace Union, Local 4-1 v. BP Pipelines (N.Am.), 191 F. Supp.2d 852, 860 (S.D. Tex. 2002) (court stated that requiring "reinvocation of the grievance machinery . . . would not only be shamefully wasteful of resources and grossly inefficient, but it would be manifestly unfair" to the grievant).