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