File 2: Opinion of Chairman Cabaniss
[ v57 p229 ]
Dissenting opinion of Chairman Cabaniss:
I disagree with my colleagues' analysis in several respects, and therefore, I respectfully dissent.
With respect to the portion of the Award raising the grievant's performance appraisal, I do not agree that the extremely general language of Article 38, which requires only that the Agency treat employees "fairly and equitably," without reference to any particular Agency actions, can reasonably be construed as an appropriate arrangement under § 7106(b)(3) of the Statute. I can see no way in which this generic provision ameliorates the adverse effects flowing from the exercise of any management right, or serves as a prophylactic measure preventing adverse effects.
The collective bargaining agreement provisions involved in United States Dep't of Veterans Affairs Medical Ctr., Coatesville, Pa., 56 FLRA 966 (2000) (provision prohibiting discrimination or reprisal against employees for exercising their rights under the Statute) and AFGE, Local 32, 3 FLRA 784 (1980) (proposal requiring that performance standards be fair and equitable), relied on by the majority, are readily distinguishable from Article 38 and are considerably more specific. Federal Aviation Admin., 55 FLRA 1233 (2000)), also relied on the majority, did not involve a contract provision at all, but rather involved a specific past practice concerning the composition of promotion panels. Although the contract language involved in United States Dep't of Veterans Affairs, Veterans Integrated Serv. Network 13, 56 FLRA 647 (2000)(VISN 13), the final case relied on by the majority, is essentially identical to that in the instant case, upon further consideration I no longer believe VISN 13 was correctly decided in this respect. The pertinent holding in VISN 13 was based on our decision in AFGE, Local 3258, 48 FLRA 232 (1993) (proposal that workload be redistributed in a fair and equitable manner). However, the contract language involved in AFGE, Local 3258, like that in AFGE, Local 32, is only superficially similar to that of Article 38.
Since I do not believe that a contract provision as unspecific as Article 38 can constitute an appropriate arrangement under the Statute, I would find that Prong I of BEP was not satisfied in the instant case. [n * ]
As for the portion of the Award reclassifying the grievant's position, it is extremely unfortunate that the Agency failed to object in a timely manner, since § 7121(c)(5) of the Statute clearly expressed the intention that arbitrator