File 2: Opinion of Member Wasserman
[ v55 p1028 ]
Dissenting opinion of Member Wasserman:
I think that the Arbitrator's award is deficient and that the case should be remanded. The majority opinion fails to acknowledge the interrelationship of the arguments presented by the Union, and thus fails to address an aspect of the claim that the award is contrary to law.
The Arbitrator stated that the Union's argument that the collective bargaining agreement requires the agency to hire employees at a certain grade "necessarily involves decisions made by the Agency about the classification of positions." Award at 14-15. In its exceptions, the Union contests that conclusion, and notes that its arguments regarding the Arbitrator's determination that the "merits [were] essentially non-arbitrable" and its arguments regarding essence were "intertwined." Exceptions at 3. The Union further states that the Arbitrator's determination that its grievance concerns "classification of positions and management's right to assign work, which are non-negotiable subjects and therefore....could not have been incorporated into any collective bargaining agreement" is incorrect and that he should have applied Article 37 to the merits. Id. at 3-4.
Article 37, Sect. 1 provides that
Employees shall be paid in accordance with applicable laws, so as to receive the maximum compensation allowable by law except as otherwise provided for in this agreement.
Award at 4.