File 3: Opinion of Member Armendariz and Opinion of Member Pope

[ v58 p115 ]


Concurring opinion of Member Armendariz:

      The Authority has long held, and with this decision today continues to hold, that an arbitrator's award which enforces a properly negotiated appropriate arrangement under § 7106(b)(3) of the Statute is not contrary to § 7106(a) of the Statute. E.g., The Washington Plate Printers Union Local No. 2, I.P.D.E.U., 31 FLRA 1250, 1255-57 (1988) (Plate Printers); Office of Personnel Management, 19 FLRA 39, 41 (1985); IRS, Austin District, 9 FLRA 672, 674 (1982). Although the Authority has consistently held that an arbitrator's award which enforces a properly negotiated appropriate arrangement under § 7106(b)(3) is not contrary to § 7106(a), it has applied different standards in determining whether an arbitrator is enforcing a properly negotiated appropriate arrangement.

      Prior to 1990, the Authority used the "excessive interference" standard in determining whether an arbitrator is enforcing a properly negotiated appropriate arrangement; that is, an award was not deficient if the arbitrator was enforcing an asserted § 7106(b)(3) provision that did not "excessively interfere" with the exercise of management's rights under § 7106(a) of the Statute. E.g., Plate Printers, 31 FLRA at 1256-57.

      In Dep't of the Treasury, United States Customs Serv., 37 FLRA 309 (1990) (Customs Service), the Authority (of which I was a Member at the time) reexamined its approach in such cases and stated that it would no longer follow the "excessive interference" standard and instead would apply an "abrogation" standard. Under this standard, the Authority examined the provision enforced by the arbitrator to determine whether it constituted an arrangement within the meaning of § 7106(b)(3) and "if, as interpreted by the arbitrator, it abrogates the exercise of a management right." Customs Service, 37 FLRA at 314. Subsequently, I participated in various decisions that applied this standard in arbitration cases.

      The Agency in this case has specifically requested the Authority to replace the "abrogation" standard with the pre-existing "excessive interference" standard. In light of this request, and in view of recent Authority decisions discussing what the proper standard should be in determining whether an arbitrator has enforced a contract provision consistent with § 7106(b)(3), see, e.g., BOP, Guaynabo, I have reexamined my views as to this matter. On reexamination, I conclude that a return to the "excessive interference" standard is warranted.

      The abrogation standard as initially set forth in Customs Service has lost any real meaning as it has been applied over the years. In Customs Service, the Authority defined an award that abrogates the exercise of a management right as one that "precludes an agency from exercising" such a right. Customs Service, 37 FLRA at 314. In every arbitration case in which the Authority has applied the abrogation standard (including those in which I participated), the Authority has determined that the enforcement of the contract provision did not abrogate the exercise of a management right. Stated otherwise, in the 12 years that the abrogation standard has been in existence, the Authority has never applied that standard in such a way to find that an award was deficient. Such a uniformly one-sided application effectively renders the test meaningless and removes all of its utility. The excessive interference standard allows an appropriate weighing of the relevant considerations in determining whether an award is deficient.

      Accordingly, under prong I of BEP, I will examine: (1) whether the provision of the collective bargaining agreement, as interpreted and applied by the arbitrator, constitutes an arrangement within the meaning of § 7106(b)(3); and (2) whether its enforcement by the arbitrator excessively interferes with the exercise of a management right. In determining whether the provision constitutes an arrangement, I will examine whether the provision as applied by the arbitrator is sufficiently tailored. In determining whether its enforcement excessively interferes with the exercise of a management right, I will weigh the benefits afforded employees under the agreement provision as interpreted and enforced by the arbitrator against the intrusion on the exercise by management of its rights under § 7106 of the Statute. If the provision as interpreted and enforced by the arbitrator constitutes an arrangement, and its enforcement by the arbitrator does not excessively interfere with a management right, I will find that the provision was enforced consistent with § 7106(b)(3). Conversely, if the provision as interpreted and enforced by the arbitrator does not constitute an arrangement, or if its enforcement by the arbitrator excessively interferes with a management right, I will find that the provision was not enforced consistent with § 7106(b)(3).

      I emphasize that the focus of the inquiry is not on the text of the contractual provision itself, but rather on how an arbitrator interprets and enforces the provision in a specific factual context. In this regard, the parties are responsible for making their best arguments to arbitrators for how to resolve such contractual issues under BEP, and arbitrators similarly have responsibilities to apply BEP in a manner that addresses the relevant considerations discussed above.

      Finally, I also note that since the focus is on how an arbitrator interprets and enforces the provision in a specific factual context, it is quite possible that the same contractual provision may be interpreted and enforced differently by arbitrators and, similarly, may result in different outcomes with respect to the application of the excessive interference test. [ v58 p116 ]


Concurring opinion of Member Pope:

      The majority today scraps over 12 years of precedent governing review of arbitration awards involving the exercise of management rights. It does so without fanfare and without a common rationale for reversing precedent. [n1]  It also does so without even according the labor-management community the courtesy of an opportunity to comment on the change. The change -- which will permit the Authority to reverse more arbitration awards -- is not consistent with the Statute and, in both the short and long runs, is a disservice to the Federal labor-management relations program. While I agree that the initial award is deficient under § 7122(a) of the Statute, I reach this conclusion because I would find that the award abrogates the exercise of the Agency's rights to assign work and determine internal security practices. [n2]  I do not agree with the majority's decision to adopt and apply the excessive interference test in these circumstances. Thus, I write separately.

      Use of the Authority's long-standing abrogation test in this case is both consistent with, and compelled by, the statutory scheme for resolving questions of: (1) the enforceability of contract provisions; and (2) the negotiability of contract proposals. In this regard, there is no question that contract provisions involving many matters are enforceable even though there was no obligation to bargain over them in the first place. Examples include contract provisions covering matters under § 7106(b)(1) of the Statute and those covering matters that do not concern conditions of employment -- while such provisions are not within the obligation to bargain under the Statute, they are fully enforceable once agreement on them has been reached. See United States Dep't of the Treasury, Internal Revenue Serv., Washington, D.C., 56 FLRA 393, 395 (2000) (§ 7106(b)(1)); AFGE Local 3302, 52 FLRA 677, 680-83 (1996) (condition of employment). This recognizes the elemental principle that a proposal may be outside the duty to bargain but not contrary to law. Put differently, agencies may agree to a broader range of provisions than they are required to negotiate over under the Statute.

      There is an outer limit to what may be agreed upon. In the context of management rights under § 7106(a), this outer limit is that those rights may not be waived. As a result, a contract provision that waives a right under § 7106(a) is contrary to law and is not enforceable. [n3]  The abrogation test, which inquires whether a contract provision waives a management right, is therefore appropriate to determine whether a contract provision is unenforceable as contrary to law. [n4] 

      The majority concludes that the excessive interference test is the appropriate test to apply in determining whether contract provisions are enforceable in arbitration under § 7106(b)(3) of the Statute. However, the excessive interference test does not determine whether a provision waives a management right and is, therefore, contrary to law under § 7122 of the Statute. The excessive interference test resolves a far different question: whether a proposal is within the duty to bargain under § 7106(b)(3). [n5] 

      Finding that the excessive interference test determines not only negotiability but also enforceability obliterates the distinction -- what is within the obligation to bargain as opposed to what is contrary to law -- between the two concepts. As such, it is squarely inconsistent with Authority precedent, set forth above, concerning permissive subjects of bargaining. It also is inconsistent with the Statute, which under § 7122 inquires only, as relevant here, whether an arbitration award is "contrary to law." Of course, applying the same test under § 7106(b)(3) to determine both negotiability and enforceability is undoubtedly simpler. But [ v58 p117 ] that doesn't make it right. The majority either fails to perceive, or ignores, this crucial point.

      It is unclear to me whether the majority also fails to perceive, or simply ignores, the program ramifications of the change it imposes here. In this regard, it is undeniable that the change will result in the reversal of more awards and will do so in a lopsided manner. Just as importantly, this change will tilt the playing field not only in arbitration but also at the bargaining table, permitting agencies to gain concessions from unions by agreeing to provisions that the agencies can later claim excessively interfere with its rights in arbitration. In both cases, it is clear that the change will encourage the filing of more exceptions to arbitration awards with the Authority, thereby increasing litigation and reducing the finality of arbitration. As a result, even though management surely will benefit from the change, the Federal labor-management relations program surely will suffer.

      Accordingly, and for the reasons set forth in both United States Dep't of Justice, Fed Bureau of Prisons, Fed. Transfer Ctr., Oklahoma City, Ok., 57 FLRA 158 (2001) and Dep't of the Treasury, United States Customs Serv., 37 FLRA 309 (1990), I would continue to apply the abrogation test in resolving whether a contract provision is enforceable in arbitration under § 7106(b)(3) of the Statute. [n6]  In reaching this conclusion, I clarify that, in my view, the abrogation test can and should be applied in a manner that recognizes the practical needs of agency management and preserves management's rights under the Statute. [n7]  See AFGE, Local 1782, 702 F.2d at 1185 (Statute is designed, in part, "to reconcile collective bargaining with the distinctive needs of government employment"). That is, in order to find that an award abrogates the exercise of a management right, it is not necessary to conclude that the award eliminates all possible exercises of a right. This is not a mathematical exercise. Instead, the facts and circumstances of each case must be examined to determine whether, viewed in context, an award effectively abrogates the exercise of a right.

      Applying that standard to the facts and circumstances presented here, I would find that Article 27, as interpreted and enforced by the Arbitrator, abrogates the Agency's rights to assign work and determine internal security practices because it leaves virtually no circumstance -- whether related to work reasons, security reasons, or both -- under which the Agency may leave posts vacant. [n8]  Cf. BOP, Atlanta, 57 FLRA at 407 (agency may vacate post for good reason or if the post has no contribution to the level of safety); BOP, Guaynabo, 57 FLRA at 331 (agency may vacate posts in emergency situations). Accordingly, I would conclude that the provision is not enforceable under § 7106(b)(3) of the Statute, and the initial award fails prong 1 of BEP.


File 1: Authority's Decision in 58 FLRA No. 21
File 2: Opinion of Chairman Cabaniss
File 3: Opinion of Member Armendariz and Opinion of Member Pope


Footnote # 1 for 58 FLRA No. 21 - Opinion of Member Pope

   Although the test that Chairman Cabaniss and Member Armendariz would apply may be the same, their reasons for adopting the test appears completely different. In this regard, Chairman Cabaniss finds that the abrogation test is contrary to law. See Concurring Opinion of Chairman Cabaniss at 14. Member Armendariz, on the other hand, appears to reject the abrogation test because it has not been applied to his satisfaction. See Concurring Opinion of Member Amendariz at 17. Thus, although there is agreement to reverse precedent, there is no agreement why it should be reversed.


Footnote # 2 for 58 FLRA No. 21 - Opinion of Member Pope

   I also agree with the majority, for the reasons stated by the majority, that the remedy award is deficient.


Footnote # 3 for 58 FLRA No. 21 - Opinion of Member Pope

   In this regard, § 7122 of the Statute provides that an award is deficient if it is "contrary to law." Similarly, § 7114(c) provides that a collective bargaining agreement is effective only insofar as it is not "contrary to law."


Footnote # 4 for 58 FLRA No. 21 - Opinion of Member Pope

   Any contention that the abrogation test is contrary to law because it accords deference to arbitrators' legal determinations is plainly wrong. The abrogation test accords no such deference. It is clear that the Authority reviews questions of law raised by an arbitrator's award and an exception to it de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citation omitted). The abrogation test simply provides the standard by which the Authority engages in de novo review. See Customs Service, 37 FLRA at 316 (deference is accorded only to an arbitrator's contract interpretation). It appears, in this regard, that it is the Chairman (and not the Authority in Customs Service) who conflates the standard for reviewing claims that an award fails to draw its essence from an agreement and the standards for reviewing claims that an award is contrary to law.


Footnote # 5 for 58 FLRA No. 21 - Opinion of Member Pope

   Both the Agency and the Chairman, in her concurrence, rely on the fact that § 7106(b)(3) does not distinguish between the abrogation test and the excessive interference test. This misses the point that § 7106(b)(3) does not specify either test.


Footnote # 6 for 58 FLRA No. 21 - Opinion of Member Pope

   Authority precedent provides that, in the rare situation where an arbitrator is actually resolving a negotiability question, the arbitrator is bound by the Authority's negotiablity precedent. See GSA, 54 FLRA 1582, 1588-89 (1998). However, that does not support the Chairman's assertion that Authority "negotiability case law .    [is] incorporated into a negotiated grievance procedure." Concurring Opinion of Chairman Cabaniss at 12.


Footnote # 7 for 58 FLRA No. 21 - Opinion of Member Pope

   Unlike Member Armendariz, I do not believe that a review of a scorecard -- how many Authority decisions applying the abrogation test have resulted in reversal of an arbitration award --constitutes a sound legal basis to reverse precedent. See Concurring Opinion of Member Armendariz at 10. Simply stated, I believe that it is not the Authority's role to interpret and apply the Statute based on the political climate of the day. See United States Dep't of Commerce, Patent and Trademark Office, 53 FLRA 858, 860 (1997) (determining whether agency violated Statute by failing to comply with Executive Order 12871 raised only the legal issue of whether the Executive Order constituted an enforceable election