File 2: Opinion of Member Pope
[ v57 p845 ]
Member Pope, dissenting:
I respectfully dissent from my colleagues' conclusion that the award in this case is contrary to law. In my view, the majority's conclusion is erroneous for two reasons. First, it misreads 10 U.S.C. §§ 1601 and 1613(a). Second, even if the majority were correct in its interpretation of the provisions, its conclusion that they render the award deficient is wrong.
As for the first reason, under 10 U.S.C. § 1601, the Secretary of Defense is provided the authority to "fix the compensation" of the grievants in this case "without regard to the provisions of any other law relating to the appointment, number, classification, or compensation of employees." This clearly provides the Secretary with discretion to fix compensation without regard to certain laws. However, those laws, by their plain terms, do not include the Statute. That is, there is no reason to conclude that the Statute is a law "relating to . . . compensation." In this regard, § 1601 is similar to another statutory provision where authority to fix compensation was found exempt from certain laws but not the Statute. See Fort Stewart Schools v. FLRA, 495 U.S. 641, 649 (1990) (agency required to bargain under the Statute over pay proposals even though agency had authority to "fix `the compensation' . . . of its employees `without regard to the Civil Service Act and rules'").
None of the cases cited by the majority to support its interpretation of § 1601 involved a statutory provision as circumscribed as § 1601; each case involved a statute conferring much broader authority. See AFGE, Local 3295, 46 F.3d at 75 (statute providing management with authority to "fix . . . compensation . . . without regard to the provisions of other laws applicable to officers or employees" held to exempt authority from the Statute); Illinois National Guard, 854 F.2d at 1402 (statute providing management with authority to prescribe hours of work "notwithstanding any other provision of law" held to exempt authority from the Statute); Colorado Nurses, 851 F.2d at 1489 (statute providing management with authority to determine conditions of employment "notwithstanding any law" held to exempt authority from the Statute). As the Secretary's authority in the case now before us is significantly different from the authority in those cases, the majority's reliance on that precedent is seriously misplaced.
With regard to 10 U.S.C. § 1613(a), the majority asserts that it provides "no support at all for a determination that the grievances are arbitrable" because it does not address the "substance" of collective bargaining agreements, but simply "permit[s] the[ir] continued existence." Majority Opinion at 12-13. I do not understand this reasoning. Section 1613(a) states that "nothing in section 1601 . . . may be construed to impair the continued effectiveness" of the parties' agreement. Here, the parties' collective bargaining agreement includes a grievance procedure, and there is no claim that the agreement itself excludes the grievants' claim from the scope of grievance and arbitration procedures. Thus, § 1613(a) supports a determination that the grievances are arbitrable.
As for the second reason, the definition of "grievance" includes "any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment." 5 U.S.C. § 7103(a)(9)(C)(ii). Consistent with this broad definition, "doubts as to whether a matter is covered by a negotiated grievance procedure should be resolved in favor of such coverage." AFGE, Local 3258, 53 FLRA at 1329 (citing AFGE, Locals 225, 1504 and 3723 v. FLRA, 712 F.2d 640, 649 (D.C. Cir. 1983)). The majority appears to overlook the basic principle that the scope of bargaining does not determine the scope of grievance procedures. [n1] In particular, grievances over matters that are themselves not within the obligation to bargain are permissible under the Statute. See VA v. FLRA, 9 F.3d 123, 132 (D.C. Cir. 1993) (court held that although management "need not negotiate about the criteria for promotions . . . any promotion in violation of the . . . specified promotion criteria . . . may be grievable under applicable grievance procedures"); NTEU, Chapter 15, 33 FLRA 229, 238 (1988) ("[a] matter which is outside the duty to bargain is not necessarily outside the scope of a negotiated grievance procedure"). Cf. Fort Stewart, 495 U.S. at 654 ("familiar rule of administrative law that an agency must abide by its own regulations . . . says nothing . . . about whether an agency can be compelled to negotiate" about the subject matter of the regulations).
Consistent with the foregoing, disputes over application of criteria established by an agency regarding subjects over which there is no obligation to bargain are, [ v57 p846 ] in practice, resolved through grievance arbitration. See, e.g., United States Dep't of the Navy, Naval Undersea Warfare Ctr., Newport, R.I., 55 FLRA 687 (1999) (award reviewed regarding application of criteria for determining performance ratings). In this case, the grievances do not challenge fixed "salary levels," as asserted by the majority. The grievances in this case challenge only the application of a system to objectively ascertain employee "contribution" based on fixed criteria. As such, the grievances are arbitrable based on long-standing Authority precedent.
The cases cited by the majority do not undermine the conclusion that the grievances in this case are arbitrable under the Statute. Specifically, both Colorado Nurses and United States Dep't of Veterans Affairs, Med. Ctr., Danville, Ill. involve the application of title 38: "an independent personnel system that . . . is exempt from all laws governing the terms and conditions of federal employment except as otherwise explicitly provided in" title 38. Colorado Nurses, 851 F.2d at 1489. Similarly, in NTEU v. FLRA, the court's conclusion that a matter was not grievable was based on its conclusion that the statute at issue had "affirmatively preserved" agency rights that were inconsistent with the right to grieve. 848 F.2d at 1276. In contrast, the statute at issue in this case does not exempt the Statute and specifically permits application of the parties' collective bargaining agreement, including its grievance and arbitration procedures. See 10 U.S.C. §§ 461(b) and 1613(a). See also H.R. Conf. Rep. No. 104-267, at 804 (1996), reprinted in 1996 U.S.C.C.A.N. 3130, 3311. (conferees note that the relevant portions of 10 U.S.C. would permit limited collective bargaining under the Statute). Office of Thrift Supervision and Illinois National Guard concern only the obligation to bargain -- not the scope of grievance and arbitration procedures.
Finally, AFGE, Local 3258, cited by the majority, supports a conclusion directly contrary to the majority's. In particular, AFGE, Local 3258 confirms the basic principal that negotiated grievance and arbitration procedures are the exclusive procedures for resolving disputes unless another "statutory or internal agency appeal procedure involved was intended to be the exclusive procedure," and that where such limitations have been found, "there have been clear, specific indications that the [other] statutory procedures were intended to be exclusive." 53 FLRA at 1325 (citations omitted). The Authority noted that "an appeals procedure" stating that it takes effect "notwithstanding any other law" constitutes such clear indication, as does an appeals procedures where the i