File 2: 0pinion of Member Armendariz
[ v59 p272 ]
Opinion of Member Armendariz, dissenting in part:
I agree that the remedy of a retroactive promotion with backpay is deficient because it is contrary to the Back Pay Act and must be set aside. However, I disagree with the decision to remand the issue of an appropriate remedy to the parties for resubmission to the Arbitrator, absent settlement.
In United States Dep't of Veterans Affairs, Cleveland Reg'l Office, Cleveland, Ohio, 59 FLRA No. 38 (Sept. 29, 2003) (Member Pope dissenting), issued yesterday, the Authority expressed the view that when the Authority finds an arbitrator's remedy deficient, it is generally appropriate to leave any further action concerning such an award in the hands of the parties. The Authority ruled that the "necessary" action, which § 7122(a) of the Statute directs the Authority to take upon finding an award deficient, is an individualized judgment to be determined on the facts and circumstances of each case. The Authority advised that in determining the necessary and appropriate action, it would be guided by whether an action, under the facts and circumstances presented, would promote the purposes and policies of the Statute.
In making this determination, I will place primary emphasis on the specific remedial relief that was sought before the arbitrator by the party invoking arbitration. A party invoking arbitration can request from the arbitrator whatever relief it b