File 2: Chairman Cabaniss' Opinion

[ v58 p475 ]

Dissenting Opinion of Chairman Cabaniss:

      I dissent from the majority only as to the issue of whether the Union's contrary to law exception was untimely raised, with the majority in effect holding that the underlying grievance did not raise a claim based upon Federal anti-discrimination law.

      In the present matter, the Arbitrator looked at whether the Agency denied an employee's shift assignment request for "arbitrary and discriminatory reasons." Award at 2. The Arbitrator then went on to identify as "RELEVANT CONTRACT PROVISIONS" Articles 6 and 22 of the parties' agreement. Award at 3-4. Article 6 is entitled "RIGHTS OF THE EMPLOYEE" and guarantees employees the right to be free from discrimination based upon, inter alia, race, color, religion, national origin, sex, age, and handicapping condition. Article 22 is entitled "EQUAL EMPLOYMENT OPPORTUNITY" and obliges the Agency to "prohibit unlawful discrimination because of age, sex, race, religion, color, national origin or physical handicap" as well as other matters.

      As I have stated elsewhere, contract provisions often mirror or reflect certain rights and entitlements already established by statute, and our precedent states that an arbitrator (and the Authority) must take care to interpret those contract provisions consistent with the statutory provision and any precedent relevant thereto. [*]  See United States