File 2: Opinion of Chairman Cabaniss

[ v58 p32 ]

Concurring Opinion of Chairman Cabaniss

      I agree in result with the majority's opinion that the proposal is nonnegotiable. However, with respect to the basis for reaching this result, I write separately to express my views regarding those arguments and considerations that further preclude bargaining over these proposals.

      The first matter the Union seeks to negotiate is its proposed definition of a military training duty, in paragraph 1. For the reasons expressed below, I find that the Union's attempt to negotiate what is, and presumably is not, a military training duty, is outside the duty to bargain as it is contrary to the Technicians Act. [n1] 32 U.S.C. § 709 et seq (Act). Given this determination, I would also find it unnecessary to inquire as to whether any of the Union's remaining portions of the proposal may be severed, as those portions either derive their meaning from this proposed definition, or fall under the Union's proposed heading "9-2b Military Training Duty " which derives its meaning from paragraph 1. [n2] See ACT, New York State Council, 56 FLRA 444, 448 (2000); NAGE, Federal Union of Scientists and Engineers, Local R1-144, 42 FLRA 1285, 1293-94 (1991) (proposal which derives meaning from a proposal which is inconsistent with law also found to be nonnegotiable); FOP, Lodge #1F