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File 2: Opinion of Member Pope

[ v60 p139 ]

Member Pope, dissenting in part:

      I agree with the majority that the award does not violate the Agency's rights to assign work and determine its internal security practices. [n1]  I also agree with the majority that the Agency's violation of the parties' agreement satisfies the first requirement of the Back Pay Act: that the grievant be affected by an unwarranted or unjustified personnel action. However, I disagree with the majority's finding that the award fails to satisfy the Back Pay Act's second requirement: that the personnel action result in the withdrawal or reduction in the grievant's pay. Accordingly, I dissent in part.

      The Arbitrator found that the grievant was improperly terminated from the IOBTC and, thereby, was reassigned from her inspector position because the Agency failed to provide her agreed-upon remedial training. See Award at 17. The Arbitrator also found that the grievant would be entitled to back pay "[i]f, and only if" she successfully completed the IOBTC after receiving the remedial training the Agency had wrongfully denied her and, thereby, satisfied the requirements for reinstatement to her inspector position. Award at 18. That is, the Arbitrator found that the necessary causal connection (between the Agency's violation and the grievant's loss of pay following reassignment from the inspector position) would be established by the grievant's successful completion of the training. 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 satisfy all requirements for reinstatement to her inspector position -- establishes the necessary causal connection between the Agency's failure to provide agreed-upon remedial training and the loss of pay following reassignment from the inspector position.

      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 imposes a retroactive bargaining order with back pay conditioned on the outcome of the bargaining. Pueblo Depot Activity, Pueblo, Colo., 50 FLRA 310, 312 (1995) (Pueblo Depot); 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 completion of training.

      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. 32
File 2: Opinion of Member Pope

Footnote # 1 for 60 FLRA No. 32 - 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 here. 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).

Footnote # 2 for 60 FLRA No. 32 - Opinion of Member Pope

   See generally Dep't of the Army v. FLRA, 56 F.3d 273 (D.C. Cir. 1995) (Authority does not have independent power under the Statute to award monetary remedies).