File 2: Opinion of Chairman Cabaniss

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Dissenting Opinion of Chairman Cabaniss:

      I write in dissent only regarding the matter of the Arbitrator's finding that no violation of the Agency's statutory duty to bargain is involved here. [n1]  The central contractual bargaining obligation is entitled "Appropriate Matters for Impact and Implementation Bargaining." It is without dispute that part of an agency's statutory duty to bargain includes what is commonly referred to as impact and implementation bargaining, i.e., bargaining tied to an exclusive representative's rights under 5 U.S.C. § 7106(b)(2) & (3).

      In the present matter, contrary to the majority, I would find that a statutory unfair labor practice allegation is present. I would not require the Agency to specifically plead that certain contract provisions reflected statutory bargaining obligations, especially where the Agency asserts that an unfair labor practice allegation is at issue, as well as its unfair labor practice defense. I also would not defer to an arbitrator's statement that no statutory issue is presented where no interpretation of the contract is put forward to explain how the contractual bargaining obligation is different from the statutory mandate, the provision in question expressly references "impact and implementation bargaining," a phrase which reflects what amounts to a term of art in Federal sector labor management relations, and the a