Environmental Protection Agency, Chicago, Illinois and American Federation of Government Employees, Local 704, 0-AR-3522, April 25, 2003, 58 FLRA No. 122.

Although the arbitrator found there was no evidence that the selection was tainted or that the selectee received preferential treatment (and thus let the selection stand), he found that the agency violated its Diversity Action Plan (DAP) by failing to interview qualified candidates for the position and awarded the union $10,000 for this violation. The Authority (member Pope dissenting) found that the arbitrator had exceeded his authority when, after finding that the selection wasn't defective, he went on to find a violation of the DAP, and set aside the award. Member Pope found that the arbitrator didn't exceed his authority, but concluded the remedy for violating the DAP was contrary to law (an issue the majority found unnecessary to address) because there was no statutory authorization for such an award.

After considering the nine applicants for a supervisory position, the agency filled the position without conducting interviews. The union grieved and the parties submitted the following issue to arbitration:

Whether the agency gave preferential treatment to the selectee . . . in violation of applicable law and/or the Master Collective Bargaining Agreement, which includes whether or not the process of selection was proper. If so, what is the remedy?

The arbitrator found no evidence that the selection was tainted or that the selectee received preferential treatment. But he went on to find that the agency violated its Diversity Action Plan (DAP) by failing to interview qualified candidates for the position. As a remedy, he allowed the selection to stand but awarded the union $10,000 to remedy the DAP violation. The agency filed exceptions claiming that the punitive damages were unlawful and that arbitrator exceeded his authority by resolving an issue not before him and awarding punitive damages to the union.

The majority (Member Pope dissenting) agreed that the arbitrator exceeded his authority.

The stipulation's reference to the process of selection was part of the issue of whether the selectee received preferential treatment; it was not a separate independent issue. The Arbitrator could have found, but did not, that the Agency gave preferential treatment to the selectee because the process of selection was improper. However, once he explicitly found that there was no preferential treatment, he had no authority to resolve a selection process issue that did not involve preferential treatment.

It accordingly set aside that portion of the award addressing the DAP, including the remedy. In a footnote it indicated that although it wasn't necessary to determine whether the award of $10,000 is contrary to law, it would have found it to be so had it addressed this issue because "there is no statutory authorization for the awarding of monetary damages under these circumstances."

In her dissenting opinion, Member Pope found the stipulated issue to clearly and unambiguously raise, as separate issues, whether the selectee was given preferential treatment and whether the selection process was otherwise improper. Even if the stipulated issue was ambiguous, she would defer to the arbitrator's interpretation of the stipulated issue. In her view, "[t]he majority's finding that the process of selection was 'not a separate, independent issue[,]'" . . . improperly fails to accord deference to the Arbitrator's implicit interpretation of the stipulated issue as including two separate issues.

Although not finding that the arbitrator exceeded his authority, she concluded that the award of $10,000 to remedy the violation of the DAP is contrary to law, as there is no statutory authorization for the award. She would have set aside the remedy portion of the award and remanded the matter of an appropriate remedy to the parties for resubmission to the arbitrator.