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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.
Under the Authority's test for determining whether an award violates a management right, the Authority first considers whether the award affects a management right. See United States Dep't of the Treasury, Bureau of Engraving and Printing, Wash., D.C., 53 FLRA 146 (1997) (BEP). If it does, then the Authority, under prong 1 of the BEP test, will consider, as relevant here, whether the award provides a remedy for a violation of a contract provision that was negotiated under § 7106(b) of the Statute. See id. If the award provides such a remedy, then the Authority will determine, under prong 2, whether the award reconstructs what management would have done had it not violated the contract provision at issue. See id.
Applying BEP, I would find that, by requiring the Agency to stay a future selection action for a potentially lengthy period of time, the award affects the Agency's right to fill positions. See NAGE, Local R1-203, 55 FLRA 1081, 1087-89 (1999). I would also find that the award satisfies prong 1 of BEP because it enforces Articles 15(C) of the Merit Promotion Plan and Article 21 of the parties' agreement, which effectively establish the scope of the grievance procedure and are enforceable under Authority precedent. See, e.g., Vermont Air National Guard, Burlington, Vt., 9 FLRA 737, 740 (1982), aff'd AFGE, Locals 225, 1504, and 3723, 712 F.2d 640, 646 (D.C. Cir. 1983). Nevertheless, I would find that the award does not satisfy prong 2 because it fails to reconstruct what the Agency would have done absent the violation; there is no connection, logical or otherwise, between the Agency's failure to provide an impartial review of the grievant's qualifications and process the grievance and stays in future promotion actions. I note, in this regard, that Article 20 of the agreement, attached to the Union's opposition, does not contain a stay provision.
Based on the foregoing, I would set aside the Arbitrator's remedy as deficient. As only the remedy is deficient -- and the Agency's violation remains intact -- I would, consistent with my dissent in SSA, 59 FLRA 257 (2003), remand the matter to the parties for resubmission to the Arbitrator, absent settlement, for a determination of an appropriate remedy, if any. [n2]
Footnote # 1 for 59 FLRA No. 173 - Opinion of Member Pope
Footnote # 2 for 59 FLRA No. 173 - Opinion of Member Pope
I note that, for reasons similar to those expressed in response to the Chairman's dissent in Nat'l Assoc. of Gov't Employees, Local R3-77, 59 FLRA No. 168 (2004) (Chairman Cabaniss dissenting in part), the Chairman errs in considering this case analogous to the Court's decision in Wright v. Universal Maritime Service Corp., et al, 525 U.S. 70 (1998) (Wright). In addition to the reasons expressed there, I note that although Wright held that certain matters could not be presumed arbitrable, the Court emphasized that "[i]t may well be that ordinary textual analysis of a [contract] will show" that those matters were subject to arbitration. Id. at 79. In the case now before us, the Arbitrator expressly found that the parties agreed that grievances challenging qualifications determinations were arbitrable. As such, if the award draws its essence from the agreement -- and everyone agrees it does -- then the matter is resolved. In this situation, the clear and unmistakable doctrine has no place. See Dep't of the Navy, Marine Corps Logistics Base v. FLRA, 962 F.2d 48, 57-58 (D.C. Cir. 1992) (court reversed Authority decision applying clear and unmistakable waiver doctrine on ground that the "analytical approach . . . completely fails to take account of the fundamental distinction between the exercise of the right to bargain and the waiver of that right"). See also IRS v. FLRA, 963 F.2d 429, 441 (D.C. Cir. 1992) (court held that the Authority had "rushed headlong into the embrace of a convoluted `clear and unmistakable waiver' analysis without adequately considering whether that analysis [wa]s appropriate").