File 2: Opinion of Member Cabaniss

[ v55 p1198 ]


Dissenting Opinion of Member Cabaniss:

      I would find that the award is deficient under section 7122(a)(2) of the Statute because the Arbitrator exceeded her authority. Long-standing Authority precedent makes clear that, where the parties have stipulated the issue to be decided, the arbitrator's authority is limited to the resolution of that issue and a decision as to any other issue, except an issue that necessarily arises from the stipulated issue, is in excess of the arbitrator's authority. See, e.g., National Center for Toxicological Research, Jefferson, Arkansas and American Federation of Government Employees, Local 3393, NCTR, Jefferson, Arkansas, 20 FLRA 692 (1985) (arbitrator decides issue other than that stipulated by parties), citing Federal Aviation Science and Technological Association, Local No. 291, Fort Worth, Texas and Federal Aviation Association, Fort Worth Air Route Traffic Control Center, Airway Facilities Sector, Southwest Region, Fort Worth, Texas, 3 FLRA 544 (1980). As my colleagues state, however, the Authority defers to an arbitrator's interpretation of the parties' stipulation.

      I would find that the issues resolved by the Arbitrator in this case do not constitute a plausible interpretation of the issues stipulated by the parties. [n1]  I would also find that the issues resolved by the Arbitrator do not necessarily arise from the stipulated issues.

      As is clear from the face of the award, the parties stipulated that the issues before the Arbitrator concerned the propriety of the Agency's determination that Mr. R was handicapped within the meaning of the Rehabilitation Act. As is also clear from the face of the award, the Arbitrator rejected the parties' stipulation and reframed the issue in terms of whether the Agency's accommodation of Mr. R's disability violated the parties' collective bargaining agreement and/or established past practice. At no point in her award did the Arbitrator state that the stipulated issue was so ambiguous that it was necessary for her to interpret that issue. Rather, the Arbitrator stated that she would resolve the "grievance as it is expressed and framed by the parties' written dialogue during the grievance procedure[,]" thereby rejecting the issues stipulated by the parties. Award at 14.

      Because the Arbitrator rejected the parties' stipulation concerning whether the Agency properly determined that Mr. R was handicapped, her formulation of the issue in terms of the Agency's reasonable accommodation does not constitute an interpretation of the stipulation to which the Authority should defer, even under the criteria employed by my colleagues. It simply is not a plausible interpretation of the stipulated issues to treat questions concerning whether the Agency properly determined that Mr. R is handicapped as questions with respect to whether he was reasonably accommodated by the Agency.

      In this regard, I believe that this case is distinguishable from National Park Service, 55 FLRA 193 cited by my colleagues. In National Park Service, the Authority rejected the agency's exceeded authority argument because the "entire focus" of the agency's arguments to the arbitrator concerned the issue claimed by the agency to be beyond the scope of the arbitrator's authority. Id. at 195. The Authority found that the agency's case to the arbitrator was not consistent with its exception. Here, the Agency's only reference to reasonable accommodation in its argument to the Arbitrator was to note that, because it had properly complied with the procedures required by law in determining that Mr. R was handicapped, it had concluded that it was obligated to accommodate that handicap. I do not believe that the mere mention of its obligation to accommodate Mr. R is sufficient to conclude that the Agency's case to the Arbitrator is inconsistent with its exception.

      Moreover, although determination of whether an employee is handicapped and assessment of whether an agency has afforded the employee reasonable accommodation are both determinations that must be made in resolving a claim under the Rehabilitation Act, they are separate determinations. Determination of whether an agency's accommodation of an employee's handicap is consistent with a collective bargaining agreement is not a subsidiary issue that necessarily arises in connection with a determination of whether that employee is in fact handicapped. It is an issue that only arises after the question of handicap has been resolved.

      The Arbitrator based her reformulation of the issue on the parties' contentions at earlier stages of the grievance procedure and of the arbitration proceeding. However, the manner in which parties frame the issues at earlier stages of a dispute is not necessarily dispositive of the issues at arbitration. See Matteson v. Ryder System Inc., 99 F.3d 108, 115 (3d Cir. 1996) (at earlier stages of dispute, statements of parties reference issues beyond toll schedule; but at last hearing before Joint Committee, "it was the toll schedule, and nothing more, over which the parties argued[,]" so that, by deciding issues not submitted to it, Joint Committee exceeded its authority). In addition, if an arbitrator concludes that an issue as stipulated by the parties is too narrow to permit resolution of the entire dispute, as the Arbitrator in this case obviously concluded, it is incumbent upon the arbitrator to inform the parties of that conclusion in order to get authorization to resolve the dispute fully. See Elkouri and Elkouri, How Arbitration Works, 322-23 (5th ed. 1997) In the absence of such authorization, the arbitrator is confined to the narrowly stipulated issues. Id. at 323 n.46.

      For the foregoing reasons, I find that the Arbitrator exceeded her authority in the circumstances of this case.


File 1: Authority's Decision in 55 FLRA No. 192
File 2: Opinion of Member Cabaniss


Footnote # 1 for 55 FLRA No. 192 - Opinion of Member Cabaniss

   I do not agree that the Agency failed to address the scope of the stipulation. In its closing argument to the Arbitrator, attached to its exceptions and thus part of the record, the Agency made clear its view that the issue before the Arbitrator concerned whether the procedures it followed in determi