File 2: Chairman Cabaniss' Opinion

[ v58 p479 ]

Dissenting Opinion of Chairman Cabaniss:

      I respectfully dissent from the majority as to whether the Authority has jurisdiction to entertain the Agency's exceeds authority argument in this case.

      I first note that this is an unusual circumstance, i.e., one party alleging that an arbitrator exceeded his or her authority by modifying an issue, that originally was subject to review by the Authority, into an issue that does not fall within the Authority's § 7122(a) jurisdiction because of the exclusion from Authority review set out in § 7121(f). [n1]  I am not aware that the Authority has ever addressed this aspect of a case, either in terms of an exceeds authority argument or in terms of whether Authority jurisdiction to review the arbitration award is precluded by § 7121(f). I also note the deference accorded arbitrators in their determination of the issue before them. However, even an arbitrator's procedural arbitrability determination (which is also accorded substantial deference) is capable of being successfully challenged by a party on an exceeds authority exception. AFGE, Local 2921, 50 FLRA 184, 185-86 (1995). Therefore, I would find that we have the authority to review an award to determine whether an arbitrator exceeded his or her authority, even in a case where the arbitrator found the matter at issue to be subject to § 7121(f) when that finding results from exceeding one's authority.

      In reviewing the exceeds authority exception on the merits, I would find that the Arbitrator exceeded her authority by resolving an enforced leave issue previously appealed to the Merit Systems Protection Board (MSPB). Again, while noting the deference accorded arbitrators in interpreting the matter to be before them, I find several facts that warrant this conclusion. I note that the February 5, 2001 grievance could not cover the circumstances at issue in the MSPB appeal as the notice of proposed indefinite enforced leave was not served on the Respondent until February 15, 2001 (and did not become effective until April 30, 2001). Hence, the Arbitrator resolved an issue that only came in to existence in relation to the February 5, 2001 grievance at the May 30, 2001 hearing, where it was fashioned from an original allegation that the Agency violated Articles 3 and 6 of the Master Labor Agreement. [n2]  While it is true that the issue advanced at arbitration is controlling, as opposed to what is set out in the grievance, I also note that one cannot rely on the ultimate remedy imposed to aid in determining whether the subject of the arbitration concerns an adverse action under § 7121(f). United States Dep't of the Treasury, United States Customs Svc., 57 FLRA 805, 806 (2002).

      In construing the issue framed before the Arbitrator on May 30, 2001, I am compelled to note that on May 18, 2001, twelve days before the arbitration hearing, the grievant employee filed with the MSPB a petition for review of the indefinite enforced leave subsequently stipulated as the issue before this Arbitrator. In filing that petition for review, the employee attested to the fact that neither himself nor anyone else on his behalf had filed a formal grievance under a negotiated grievance procedure over the enforced leave matter being appealed to the MSPB. In interpreting what the parties framed before the Arbitrator, I believe that the grievant, pursuant to his affirmation to the MSPB, is now precluded as a matter of law under § 7121(e)(1) from availing himself of an arbitration award related to an issue foreclosed from the grievance process by his MSPB petition and the Arbitrator exceeded her authority by resolving an issue previously placed under MSPB jurisdiction by the grievant employee. While the lack of clarity and detail in the February 5, 2001 grievance left much room in terms of framing the issue, the issue of indefinite enforced leave was clearly placed before the MSPB on May 18, 2001 and subsequent consideration and resolution of that issue by the Arbitrator exceeded her authority. I also note that the MSPB Administrative Judge's decision on the May 18, 2001 petition which found that the Agency's placement of the employee on indefinite enforced leave promoted the efficiency of the service was issued on October 22, 2001, nine (9) days prior to the Arbitrator's award.

      I believe the Arbitrator exceeded her authority because § 7121(e)(1) looks not at what the issue was at arbitration, but whether (in this case) a grievance over the indefinite enforced leave or an MSPB appeal of the action was filed first. Rodriguez v. Merit Sys. Protection Bd., 804 F.2d 673, 675 (Fed. Cir. 1986). Here it has been shown beyond challenge that the grievance filed on February 5, 2001 had nothing to do with the indefinite enforced leave issue as the notice of proposed indefinite enforced leave was not served on the employee until ten days later on February 15, 2001. And, as already noted, the Union admits that it filed no grievance related to this matter other than its February 5, 2001 grievance. Thus, the first appeal or grievance filed over the indefinite enforced leave was the MSPB appeal filed on May 18, 2001, and not the Arbitrator's subsequent [ v58 p480 ] determination on May 30, 2001 that the issue to be resolved by her was indefinite enforced leave. Because the Arbitrator resolved an indefinite enforced leave issue already pending before the MSPB and did so pursuant to the authority derived from a grievance filed before the indefinite enforced leave was imposed, I would find that the Arbitrator's Award exceeded her authority, that under these unusual facts § 7121(f) does not preclude our jurisdiction. [n3] 

File 1: Authority's Decision in 58 FLRA No. 117
File 2: Chairman Cabaniss' Opinion

Footnote # 1 for 58 FLRA No. 117 - Chairman Cabaniss' Opinion

   The Arbitrator informed the parties that they could file exceptions with the Authority and her decision did not discuss compliance with § 7121 (e)(2). Award at 2.

Footnote # 2 for 58 FLRA No. 117 - Chairman Cabaniss' Opinion

   I note that the Union acknowledged that there was no subsequent grievance or appe