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 Dep't of Defense, Nat'l Guard Bur., Adjutant General, Kansas Nat'l Guard, 57 FLRA 934 (2002) and AFGE, Local 507, 58 FLRA No. 92 (2003). I doubt that one could argue that Articles 6 and 22 of the parties' agreement do not reflect employee rights and agency obligations established by Federal anti-discrimination statutes and there has been no assertion made, or any finding by the Arbitrator, that these contractual provisions mean something other than the underlying Federal statutes giving rise to these rights. I agree that the Union could have specifically grieved a violation of the statutes and regulations underlying this contractual language, as noted in footnote 6 of the majority. However, for purposes of resolving cases such as this, there unfortunately is no requirement that such allegations be affirmatively pled, and no requirement that arbitrators affirmatively discuss whether or not contractual language mirroring statutory matters is addressing something other than those statutory matters. As a result, the Authority is left with the precedent noted above. Accordingly, I would find that a violation of those statutes was before the Arbitrator and thus should not be excluded now from consideration by the Authority pursuant to § 2429.5 of our Regulations.

      Additionally, an even more compelling argument can be made for the conclusion that the Agency and Union here are precluded as a matter of law from attempting to interpret these provisions in a matter inconsistent with Federal anti-discrimination statutes. Section 7103(a)(14) of our Statute precludes negotiation over any matter that is specifically provided for by Statute by excluding such matters from the definition of "conditions of employment." In United States Dep't of Justice, Immigration and Naturalization Service v. FLRA, 4 F.3d 268 (4th Cir. 1993), the court set aside an attempt to obligate an agency to negotiate over sexual harassment matters, which is a form of sex discrimination (and which also is the issue the Union seeks to raise in the exception rejected by the majority). I am not advocating that these provisions are illegal because I believe that parties can make reference in agreement provisions to Federal statutes without running afoul of this precedent. However, I also believe this judicial decision makes it clear that an agency and a union cannot negotiate any substantive provision dealing with the various types of discrimination prohibited by Federal statute. As a result, if Articles 6 and 22 of the parties' agreement are viable (which I believe they are) they can have no meaning o