File 2: Opinion of Member Pope
[ v59 p867 ]
Dissenting Opinion of Member Pope:
The Arbitrator directly and unambiguously found that but for the Agency's violation of the parties' agreement, the grievant would have been promoted. The Arbitrator refused backpay solely because, in his view, the grievant improperly refused to mitigate her damages; before the Authority, the parties dispute whether the grievant was required to do so. Without addressing this issue -- the Union's sole exception -- the majority finds the award deficient based on a specious finding that is patently inconsistent with the record. Accordingly, I dissent.
Here, the grievant was granted priority consideration as a result of a previous grievance. Subsequently, the grievant exercised that priority consideration in connection with a vacant claims representative position and, when she was not selected for the position, filed another grievance. Twelve years later, the second grievance resulted in an arbitration hearing and the award now before the Authority. [n1] See Award at 4. In that award, under review here, the Arbitrator concluded that the Agency failed to provide appropriate priority consideration and, by its failure, violated the parties' agreement. See id. at 8.
To remedy the Agency's violation of the agreement, the Arbitrator ordered the Agency to offer the grievant the next, vacant claims representative position within a particular geographic area. See id. at 10. The Arbitrator acknowledged, in this regard, that:
but for the agency's violation of the grievant's contractual rights she would have received claims representative pay[.]
Id. at 9. However, the Arbitrator found that "one whose contractual rights have been breached" is obligated to "mitigate damages" and that the grievant did not do so in this case. Id. Therefore, "on that basis" -- and only on that basis -- the Arbitrator concluded that "to award [the grievant] back pay would n