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&