File 2: Opinion of Member Cabaniss
[ v55 p1012 ]
Opinion of Member Cabaniss, dissenting in part:
I dissent from the conclusion that the negotiability appeal process cannot be used to resolve alleged conflicts between section 7116 and either bargaining proposals or contract provisions disapproved pursuant to agency head review under section 7114(c) of the Statute. However, in doing so I would still find that the provision in question is not contrary to law, to include section 7116.
While the majority correctly asserts that the Authority has never found that a proposal or a provision constitutes an unfair labor practice, that statement actually reflects that the Authority has never sustained any of the numerous agency allegations of conflict between a proposal or provision and section 7116, and not that the Authority refused to entertain the issue. To the contrary, the Authority has never before refused to address an allegation of alleged inconsistency between a proposal or provision and section 7116 of our Statute when necessary to resolve the issue before it. [n1] For that matter, even the Union in this case saw no difficulty with the Authority resolving this issue and posed no objection to our doing so.
Section 7105(a)(2)(E) empowers the Authority to resolve questions relating to the duty to bargain in good faith under section 7117(c) of the Statute. Section 7117(c) relates back inextricably to section 7117(a), which limits the duty to bargain in good faith to the extent not inconsistent with "Federal law." Authority precedent in negotiability cases clearly reflects that section 7116 falls within the kind of "Federal law" against which a proposal/provision can be assessed: the majority decision even acknowledges the ability to assess contract language against section 7114(a)(1) (a union's duty of fair representation, the violation of which would constitute an unfair labor practice under section 7116(b) of the Statute) and section 7116(a