File 3: Opinion of Member Pope
[ v59 p989 ]
Opinion of Member Pope, dissenting in part:
I write separately because, although I agree with the majority that the grievance in this case is arbitrable, I disagree that the Arbitrator exceeded his authority by finding that the Agency violated the parties' agreement. [n1] Also, I would remand the award for resolution of a different issue than that identified by the majority. In particular, I would find the remedy -- and only the remedy -- deficient and remand for determination of an alternative remedy.
Under longstanding precedent, the Authority accords "substantial deference" to an arbitrator's formulation and interpretation of an issue. See AFGE, Local 1547, 59 FLRA 149, 150-51 (2003); USDA, 36 FLRA 393 (1990). Here, the Arbitrator framed the issue as whether the Agency violated the parties' agreement "when it determined that the grievant was not basically qualified for the position." Award at 4. In resolving this issue, the Arbitrator interpreted the parties' agreement as encompassing the Merit Promotion Plan, and the majority agrees that this interpretation draws its essence from the agreement. See Majority Opinion at 8-9. The Arbitrator found that, under the Merit Promotion Plan, the grievant was entitled to "impartial review" of her qualifications and that, as the Agency rejected the grievant's application in a "summary fashion," the Agency violated the agreement. Award at 13. As this finding is directly responsive to the issue as framed and interpreted by the Arbitrator, the Arbitrator did not exceed his authority.
In addition, I would deny the Agency's exceptions that the award is based on a nonfact and that the award is contradictory. The Agency's nonfact claim is not persuasive because it challenges the Arbitrator's interpretation of the parties' agreement. See, e.g., United States Dep't of Defense, Defense Contract Management Agency, 59 FLRA 396, 403 (2003). The Agency's claim that the award is contradictory is not persuasive because the Agency has not shown that it is impossible to comply with the award. See id.
Nevertheless, I would find that the remedy ordered by the Arbitrator violates management's right to fill positions under § 7106(a)(2)(C) of the Statute. In this regard, the Arbitrator ordered that, if the Agency announces another position for which the grievant applies, then "before the Agency may fill the vacancy on a permanent basis, it must first process [the grievant's] grievance -- should she choose to file one -- through the negotiated grievance procedure, including appeals, for purposes of having its determination affirmed." Award at 14.