File 2: Opinion of Chairman Cabaniss
[ v57 p303 ]
Dissenting Opinion of Chairman Cabaniss:
I respectfully dissent from my colleagues as to the conclusion they reach regarding the contrary to law exception. Based upon the following, I would sustain that exception and set the aside the award.
In reaching this conclusion, I note that the regulations implementing 5 U.S.C. § 5544 do establish guidance as to how to calculate the basic rate of pay of these employees: 5 C.F.R. § 532.503(a)(1) mandates that these employees "shall be paid overtime pay in accordance with part 551 of this chapter." In that regard, 5 C.F.R. § 551.511 sets forth guidance regarding how to determine an employee's "regular rate of pay." Contrary to the majority, because these regulations do not reference any "basic rate of pay," i.e., the terminology of 5 U.S.C. § 5544, I would not assume that the Office of Personnel Management, in issuing its regulations implementing 5 U.S.C. § 5544, meant to discuss "regular rate of pay" in the context of it having absolutely nothing to do with the underlying statute it was implementing, especially where the regulations do not utilize "regular rate of pay" in a manner that is at all at odds with the underlying statutory reference to "basic rate of pay." Additionally, based on the discussion set forth below, I would find no support for the Union's position on this issue by virtue of 5 C.F.R. § 551.513, given the court-imposed subordination of 44 U.S.C. § 305 to 5 U.S.C. § 5544.
I also see little persuasive effect from any reliance on 44 U.S.C. § 305, with its establishment of a right to negotiate over wages. The Federal Service Labor-Management Relations Statute itself explicitly recognizes an ability to negotiate over all conditions of employment, including wages and compensation, although that does not permit employees to disregard some external statutory limitation upon that right. [n1] Our own Statute sets forth that limitation while 44 U.S.C. § 305 does not, yet a court decision, i.e., the Abramson Federal Claims Court decision cited by the Agency, subjecting 44 U.S.C. § 305 to 5 U.S.C. § 5544, is no less effective a bargaining limitation on these employees' right to bargain over wages in violation of 5 U.S.C. § 5544 than our own Statute is on other employees' right to bargain wages in violation of 5 U.S.C. § 5544. [n2]
I also find no guidance from the Kelly case cited by the majority. There is a notable legal difference between being able to negotiate an entitlement not prohibited by statute (the gratuity pay in Kelly), and being able to negotiate an entitlement that is prohibited by statute (computation of overtime in violation of 5 U.S.C. § 5544), since one violates a statutory prohibition and the other doesn't.
In light of all this, I do not find any support for the claim that 44 U.S.C. § 305 is rendered "meaningless" by the applicability of 5 U.S.C. § 5544, since 5 U.S.C. § 5544 and its limitations no more renders "meaningless" the compensation bargaining rights established by our Statute than it does for those covered by 44 U.S.C. § 305. Accordingly, I would set aside the award as being contrary to law.
File 1: Authority's Decision in 57 FLRA No. 64
File 2: Opin