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.
This contract language incorporates "applicable laws" that would govern maximum compensation. The Union notes that the FPM letter and the FAA Order 3550.14 (applicable laws) provide the Agency with the flexibility to hire employees at their previous grade levels. The Arbitrator implicitly relied upon incorporation [ v55 p1029 ] of the federal labor statute when he referred to classification, 5 U.S.C. §7103(a)(14) and management rights, 5 U.S.C. §7106. [n1] See Award at 10 and 15.
In light of the interplay of the law with the disputed contract language, I construe the Union's exception, based on a reading of the record as a whole, as a claim that the Arbitrator was mistaken as a matter of law when he made two determinations: 1) that placement in a grade involves "classification," and 2) that the collective bargaining agreement could not be interpreted so as to "require the Agency to make maximum use of the flexibility authorized by OPM" to hire PATCO controllers at their previously held grades. Exceptions at 3 and Award at 14-15. See also American Federation of Government Employees, Local 1546 and U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region West, 52 FLRA 94, 99 (1996) (Authority construed union's exception as a claim that the award is contrary to law (i.e., the Rehabilitation Act), based on a reading of the record as a whole, specifically, testimony of a union witness that referred to the Act and the arbitrator's discussion of reasonable accommodations). While I will defer to an arbitrator's interpretation of contract language, deference is not warranted when the interpretation is contrary to law. Cf. U.S. Department of the Air Force, HQ Air Force Materiel Command and American Federation of Government Employees, Council 214, 49 FLRA 1111, 1118-21 (1994) (Authority held that an arbitrator may consider and make a negotiability determination that is collateral to resolution of a dispute between the parties concerning the meaning and application of a specific provision of the parties agreement, provided that the negotiability determination is consistent with the Statute and Authority precedent).
The Authority has stated that
where exceptions to an arbitration award are filed with the Authority, section 7122 authorizes the Authority to take such action as it considers necessary with respect to an arbitration award which it finds deficient because the award is contrary to any law, rule or regulation. To avoid such findings of deficiency by the Authority, an arbitrator must perforce consider any relevant law, rule or regulation when fashioning a grievance arbitration award in the Federal sector.
Louis A. Johnson Veterans Administration Medical Center, Clarksburg, West Virginia and American Federation of Government Employees, Local 2384, 15 FLRA 347, 350 (1984). When federal sector arbitrators deem it important to apply the law, they must do so correctly, in order for the award to withstand review upon the filing of exceptions.
The Authority has construed the term "classification" in sections 7103(a)(14)(B) and 7121(c)(5) to have the same meaning as in 5 C.F.R. § 511.101(c), which defines the term as "the analysis and identification of a position and placing it in a class under the position-classification plan established by OPM under chapter 51 of title 5 ..." American Federation of Government Employees, Local 2025 and U.S. Department of the Air Force, Ninth Reconnaissance Wing, Beale Air Force Base, California, 50 FLRA 39, 42 (1994) (quoting 5 C.F.R. § 511.101(c)); U.S. Department of the Army, Fort Polk, Louisiana and Nati