File 2: Member Pope's Opinion
[ v58 p497 ]
Dissenting Opinion of Member Pope:
I dissent from the majority's conclusion that the Arbitrator exceeded his authority by finding a violation of the Agency's Diversity Action Plan (DAP). For the reasons stated below, I would conclude that the Arbitrator did not exceed his authority, and I would deny the Agency's exception.
The Arbitrator was asked to determine "[w]hether the Agency gave preferential treatment to the selectee . . . which includes whether or not the process of selection was proper." Award at 3. The Arbitrator found that the Agency did not give preferential treatment to the selectee, but that the selection process was improper because the Agency did not conduct interviews as required by its DAP. In my view, these conclusions are directly responsive to the parties' stipulated issue, which I find to clearly and unambiguously raise, as separate issues, whether the selectee was given preferential treatment and whether the selection process was otherwise improper.
Even if the parties' stipulated issue was ambiguous, I would resolve the ambiguity with deference to the Arbitrator's interpretation of the issue. In this regard, the Authority has long held that an arbitrator's interpretation of a stipulated issue is accorded the same substantial deference as an arbitrator's interpretation and application of a collective bargaining agreement. [*] See SSA, Balt., Md., 57 FLRA 181, 183 (2001). The majority's finding that the process of selection was "not a separate, independent issue[,]" Majority Decision at 3, improperly fails to accord deference to the Arbitrator's implicit interpretation of the stipulated issue as including two separate issues.
Moreover, there is no logical or legal basis for the majority's conclusion that the Arbitrator could find a violation of the DAP only if he found that the violation caused preferential treatment. The Arbitrator clearly considered the two issues separately, and I know of no law that prevents an arbitrator from finding a contract violation, unless a specific adverse effect resulted. See, e.g., GSA, 45 FLRA 1226 (1992) (award not deficient where arbitrator found a violation of law but concluded that the violation had no adverse effect on the grievant). Consequently, the majority's conclusion that "once [the Arbitrator] explicitly found that there was no preferential treatment, he had no authority to resolve a selection process issue that did not involve preferential treatment" is baseless. Majority Decision at 3.
The majority's reliance on United States Dep't of the Navy, Naval Sea Logistics Ctr., Detachment Atlantic, Indian Head, Md., 57 FLRA 687 (2002) (Naval Sea) also does not support a finding that the Arbitrator exceeded his authority. The arbitrator in Naval Sea ordered the agency to review a policy that he expressly found the agency had not violated. Conversely, the Arbitrator in this case expressly found that the Agency violated the DAP. Therefore, Naval Sea is inapposite.
Based on the foregoing, I would deny the Agency's exception that the Arbitrator exceeded his authority by finding a violation of the DAP. However, I would conclude, as would my colleagues, that the award of $10,000 to remedy the Agency's violation of the DAP is contrary to law, as there is no statutory authorization for the award. See Majority Decision at 4 n.4. Consistent with Authority precedent, I would set aside the remedy portion of the award and remand the matter of an appropriate remedy to the parties for resubmission to the Arbitrator, absent settlement.
Accordingly, I dissent.
File 1: Authority's Decision in 58 FLRA No. 122
File 2: Member Pope's Decision
Footnote * for 58 FLRA No. 122 - member Pope's Decision