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 i