File 2: Opinion of Member Pope
[ v60 p445 ]
Member Pope, dissenting in part:
I agree with the majority decision in all respects but one. [n1] I disagree with the majority's finding that the award fails to satisfy the Back Pay Act's second requirement: that the unwarranted and unjustified personnel action result in the withdrawal or reduction in the grievant's pay. Accordingly, consistent with my dissenting opinion in Dep't of Homeland Security, Bureau of Immigration and Customs Enforcement, 60 FLRA 131 (2004), I dissent in part.
The Arbitrator found that the grievant met the qualifications for the career ladder GS-7 position for which she applied and, given her priority consideration rights, should have been selected for the position. See Award at 9-11. Accordingly, the Arbitrator awarded the grievant the position "with all of the rights that would have been applicable had she been selected" initially. Id. at 11. In this connection, the Arbitrator determined that the grievant would have been entitled to a promotion to the GS-9 level if, after one year at the GS-7 level, she is "found qualified at the GS-9" level. Id. Therefore, the Arbitrator found that the necessary causal connection (between the Agency's violation and the grievant's loss of pay following her non-selection) would be established if the grievant is found qualified at the GS-9 level after one year at the GS-7 level. Thus, the majority's holding that the award is deficient because it fails to establish a causal connection is wrong on the facts. The condition that the Arbitrator attached to the award of back pay -- that the grievant be found qualified at the GS-9 level -- establishes the necessary causal connection between the Agency's failure to select the grievant for the position and the grievant's loss of pay.
The majority's holding that the award is deficient also is wrong on the law. In this regard, the Authority itself awards back pay conditioned on future events establishing causality. In particular, in situations where an agency has committed an unfair labor practice by refusing to bargain over a change in working conditions and it is not possible to determine which employees lost pay, the Authority has imposed a retroactive bargaining order with back pay conditioned on the outcome of the bargaining. See Pueblo Depot Activity, Pueblo, Colo., 50 FLRA 310, 312 (1995); Fed. Deposit Ins. Corp., Wash., D.C., 48 FLRA 313, 330-31 (1993). As the Authority has explained, in this circumstance "the causal nexus required by the Back Pay Act" is established by bargaining. United States Dep't. of Health & Human Serv., Soc. Sec. Admin., Balt., Md., 37 FLRA 278, 292 (1990). The majority provides no reason why the causality requirement -- which applies equally in unfair labor practice and arbitration proceedings [n2] -- may be satisfied by subsequent bargaining but not by subsequent satisfactory job performance.
For the foregoing reasons, the Arbitrator's award is consistent with the Back Pay Act and should not be set aside. Accordingly, I dissent in part. I would deny the Agency's exceptions in their entirety.
File 1: Authority's Decision in 60 FLRA No. 86
File 2: Opinion of Member Pope
Footnote # 1 for 60 FLRA No. 86 - 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 to the Agency's exception that the award violates its right to make selections. 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