File 2: Opinion of Member Pope

[ v61 p365 ]

Opinion of Member Pope, dissenting in part:

      I agree with the majority that the Agency's exception was timely filed and is not interlocutory. I also agree the award is deficient insofar as it finds a violation of the Rehabilitation Act and grants compensatory damages. However, I disagree that the award of backpay should be set aside. Instead, I would remand the award to the Arbitrator for a clarification. Therefore, for reasons more fully explained below, I dissent in part.

      Under longstanding Authority precedent, where the Authority is unable to determine whether an arbitrator's award is deficient, the Authority remands the award to the parties for resubmission to the arbitrator, absent settlement, for a clarification. See Fed'l Trade Comm'n Headquarters, Wash., D.C., 53 FLRA 1782 (1998) (citations omitted). In my view, it is impossible to determine whether the award of backpay is deficient because the Arbitrator did not explain the basis of the award. In this regard, the Arbitrator stated the following regarding the backpay award:

[H]ad the Agency accommodated the Grievant as he requested with a modified work schedule, it is unlikely that he would have incurred repeated AWOLs resulting in a Reprimand and a subsequent Leave Restriction. In sum, but for his medical crisis and its concurrent enumerated effects, the Grievant might have avoided these disciplinary violations. Accordingly, damages shall include: back pay with interest, compensatory damages and attorney[] fees, as the Agency violated the Agreement, as well as the [Rehabilitation Act].

Award at 18 (emphasis added).

      By its plain terms, the last sentence -- which the majority summarily dismisses -- can be read reasonably as awarding backpay based on the contractual violation, the statutory violation, or both. Accordingly, as the award does not otherwise clarify the Arbitrator's intent, and as the contract violation is unchallenged and remains intact, a clarification of the award is necessary. Therefore, consistent with Authority precedent, I would remand the award to the parties/Arbitrator for clarification as to this issue. [*] 

File 1: Authority's Decision in 61 FLRA No. 66
File 2: Opinion of Member Pope

Footnote * for 61 FLRA No. 66 - Opinion of Member Pope

   I note, in this regard, that the majority is correct that attorney fees may not be awarded unless backpay is awarded also.