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 candidates must be interviewed," speaks to a requirement that interviews be conducted in certain circumstances. Exceptions, Attachment 1 at 83. That section does not speak to whether a failure to conduct interviews in those -- or other -- circumstances may be considered evidence of a failure to provide full consideration to applicants. As such, the Arbitrator's finding that, in this case, the Agency's failure to interview the grievants supported a conclusion that the grievants were not afforded full consideration for promotion, as required by § 8(C), is not deficient. [n2]
Second, the Arbitrator=s finding that the Agency violated § 8(C) was expressly based on not only the failure to interview the grievants, but also on the Agency's failure to provide them notice of nonselection. The Agency does not except to the Arbitrator's finding that it improperly failed to notify the grievants of their nonselection. Thus, even if the Arbitrator misinterpreted § 11(D) -- and I do not believe that he did -- that would not render the award deficient. Moreover, contrary to the majority, there was no need for the Arbitrator to reconcile § 8(C) with § 11(D), because there is no inconsistency between the two sections. The former provision requires full consideration of applicants for promotion; the latter requires interviews of applicants in certain circumstances. No basis is provided for concluding that, in any circumstance, a failure to interview applicants may not be considered as evidence of a lack of full consideration.
With regard to the Agency's remaining exceptions --which are not addressed by the majority -- Article 22, § 13 of the parties' agreement expressly mandates priority consideration to remedy a procedural violation like the ones the Arbitrator found here, and nothing in the agreement specifies a particular entity of the Agency within which priority consideration must be exercised. As such, there is no basis for finding that the Arbitrator's remedy -- priority consideration throughout Network 7 --fails to draw its essence from the parties' agreement. I also would deny the Agency's nonfact exception on the ground that the Agency has not established that the alleged nonfacts are central to the underlying award, but for which the Arbitrator would have reached a different result. See, e.g., NFFE, Local 1984, 56 FLRA 38, 41 (2000).
In sum, I agree with the majority in one respect: I agree it is appropriate to set aside the portion of the award finding a contractual violation based on the Agency's failure to obtain the Union's consent prior to expanding the area of consideration. I would deny the Agency's exceptions to the remaining portions of the award, leaving intact the requirement that the Agency afford the grievants priority consideration throughout Network 7.
File 1: Authority's Decision in 59 FLRA No. 140
File 2: Opinion of Member Pope
Footnote # 1 for 59 FLRA No. 140 - Opinion of Member Pope
As this case was litigated after the Authority determined to apply the excessive interference standard in resolving exceptions to arbitration awards, I agree with the majority that the standard applies here. See United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Fed. Satellite Low, La Tuna, Tex., 59 FLRA 374, 377 (2003) (Member Pope concurring).
Footnote # 2 for 59 FLRA No. 140 - Opinion of Member Pope
The majority is correct that the Arbitrator made no finding that any applicants were interviewed. It is equally true that the Arbitrator made no finding that any applicants were not interviewed. Even if no applicants were interviewed, however, I would not find the award deficient on essence grounds. Put simply, that the agreement may not have required the Agency to interview the grievants did not preclude the Arbitrator from finding, in the circumstances of this case, that the Agency's failure to interview the grievants, along with other factors, supported a conclusion that the grievants were not provided full consideration, as required by § 8(C).