File 2: Chairman Cabaniss Opinion

[ v58 p276 ]


Concurring Opinion of Chairman Cabaniss:

      I agree with the outcome of this case but would take the time to clarify an issue uncovered by an analysis of our precedent regarding § 7106(b)(1) matters. Our case law reflects two tests for determining whether a matter is electively negotiable by an agency under § 7106(b)(1). [*]  One line of cases lays out a test that examines: (1) the technological relationship of the matter addressed by the proposal to accomplishing or furthering the performance of the agency's work; and (2) how the proposal would interfere with the purpose for which the technology was adopted. This is the test relied on in the majority decision. The other line of cases looks at whether the proposal "concerns" the agency's § 7106(b)(1) right by subjecting substantive decisions regarding the right to bilateral determination. See, e.g., NTEU, Chapter 229, 22 FLRA 698, 699 (1986).

      It appears that the Authority has used such tests (and cases) interchangeably to mean seemingly the same thing, and an initial comparison reveals seemingly little substantive distinction between the two tests. However, as the statutory mandate is that a proposal is permissively negotiable if it is a § 7106(b)(1) matter (the question that is asked by the second test and the first subpart of the first test), requiring some showing of interference (the second subpart of the first test) does not seem appropriate and could be construed to impose an unwarranted additional requirement. Therefore, I would still reach the same outcome as the majority, but in doing so I would eliminate the perc