File 2: Opinion of Member Pope
[ v59 p786 ]
Opinion of Member Pope, dissenting in part:
For the reasons stated by the majority, I agree that the portion of the award finding that the Agency violated Article 22, § 8(C) of the parties' agreement by expanding the area of consideration without the Union's consent is contrary to the Agency's right to make selections under § 7106(a)(2)(C) of the Statute. [n1] As such, I agree that this portion of the award should be set aside and, as a result, that there is no need to address the Agency's exception that this portion also is deficient because it fails to draw its essence from Article 22, § 8(B).
However, I do not agree with the majority that the portion of the award finding that the Agency violated Article 22, § 8(C) of the parties' agreement by failing to provide the grievants full consideration for promotion is deficient. The Arbitrator found, in this regard, that applicants in the first area of consideration, including the grievants:
were dismissed out-of-hand. That is, even though they were identified as qualified and referred for selection, they were not even interviewed. And they were not given notice of their non-selection, even though the contract requires Management to provide such a notice. In the opinion of the Arbitrator, this is not what the contracting parties had in mind when they agreed to "full consideration" for merit promotion.
Award at 7.
The majority focuses exclusively on the Arbitrator's reference to the Agency's failure to interview the grievants, finding that this renders the award deficient because, under § 11(D) of the parties' agreement, "the conduct of interviews is solely within the Agency's discretion[.]" Majority Opinion at 10. This is wrong for two reasons.
First, § 11(D), which provides that "if interviews are used, all candida