[ 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 not be appropriate[.]" Id.
As this amply demonstrates, the majority's conclusion that "there is no basis on which to find that, but for the Agency's failure to follow the agreement, the grievant suffered a loss of pay" is not supported by the record. Majority Opinion at 5. I am at a loss to explain why or how the majority is determined to ignore what is so painfully obvious. The fact remains, however, that the Arbitrator found that but for the Agency's violation, the grievant would have been promoted.
Consistent with the foregoing, the Authority should resolve the parties' dispute over the reason the Arbitrator denied backpay: the grievant's failure to mitigate her damages. Although the Authority has not previously addressed this issue, the Union points out that the Merit Systems Protection Board (MSPB) holds that, under the Back Pay Act, an employee is not required to mitigate damages during the time a claim is processed administratively. See Exceptions at 3 (citing Green v. United States Postal Serv., 57 MSPR 560, 564-65 (1993)) (an employee is not required to make "an effort to secure other employment while seeking administrative relief, and the duty to mitigate does not arise until a final administrative decision is issued"). See also Andress v. United States Postal Serv., 56 MSPR 501, 504-05 (1993) ("the obligation to seek other employment does not arise while the employee is pursuing administrative remedies"). In response, the Agency points out that MSPB precedent is not binding on the Authority. See Opp'n at 1.
The parties' dispute regarding whether the grievant was required to mitigate her damages -- the only reason the Arbitrator refused backpay and the only exception before the Authority -- deserves resolution. Accordingly, I dissent. [n2]
File 1: Authority's Decision in 59 FLRA No. 158
File 2: Authority's Decision
Consistent with MSPB precedent, I would be inclined to hold that a grievant is not obligated to mitigate damages during the pendency of grievance and arbitration proceedings. However, in my view the issue has not been fully developed, and I would find it appropriate to permit the labor-management relations community at large to comment on this issue before final resolution.