File 2: Opinionof Chairman Cabaniss
[ v59 p74 ]
Concurring Opinion of Chairman Cabaniss:
With respect to the sufficiency of the charge filed in this case, the dissent argues that the suitable clear and concise statement of facts required by 5 C.F.R. § 2423.4(a)(5) was made in this case without explaining how a statement of facts related to communication with a union president provided the Respondent with notice that it was being charged with a ULP based upon bypass. Under the plain terms of the above regulation, the majority's holding is the proper response to a failure to provide even the barest notice required by Authority regulation, precedent and due process.
The crux of a bypass allegation is the undermining of the exclusive representative by not communicating through the union's officers. Here, the charge accused the Agency of contacting the Union president, and yet the dissent would find that the charge actually gave the Agency adequate notice of a bypass allegation. The majority does not agree and finds the facts alleged to be insufficient to constitute notice of an unfair labor practice allegation based upon bypass.
Even if I were to find that the charge was sufficient to warrant the Authority entertaining the merits of this matter, I would find that the General Counsel failed to prove an allegation of bypass.
Here, the General Counsel argues that the bypass was premised on the Respondent's representatives direct communication with the bargaining unit in that the communication urged bargaining unit members to exert pressure on their exclusive representative to take a certain course of action. However, I disagree that the complained of communication undermined the status of the exclusive representative.
In this respect, as the Judge noted, the local president had already conducted a poll of the bargaining unit to determine whether the membership was in favor of maintaining/modifying HIMP. The results indicated that a majority