File 2: Opinion of Chairman Cabaniss
[ v59 p519 ]
Concurring Opinion of Chairman Cabaniss:
I write separately to address issues implicitly raised by this case but not addressed by the majority opinion.
The exceptions in this case, while properly denied, raise more issues than those resolved by the majority opinion. Regarding the essence exception, although the Arbitrator appears to have found that the parties contractually excluded the issues the excepting party wanted to arbitrate, it is misleading to fail to acknowledge that the underlying assumption, that such issues must be contractually excluded or they become subject to the contract and its negotiated grievance procedure, is erroneous. Our precedent reflects that contract clauses regulating supervisory conditions of employment, to include filling supervisory positions (thereby subjecting to the negotiated grievance procedure, for example, a bargaining unit employee's grievance regarding his or her non-selection for such a supervisory position), are permissive subjects of bargaining. See, e.g., United States Dep't of Defense, Defense Commissary Agency, Ft. Lee, Va., 56 FLRA 855, 858-59 (2000). Thus, such agreement provisions must be affirmatively included in the parties' agreement, rather than being a matter that must be affirmatively excluded from the agreement. Consequently, while the Arbitrator's conclusion of inarbitrability is correct, he reached the correct result for the wrong reasons.
The same result can be said of the Union's allegations that are based upon 5 U.S.C. § 2302. Our Statute defines a "grievance" to include violations of laws, rules, or regulations "affecting conditions of employment," per § 7103(a)(9). The Authority's precedent has not yet squarely addressed the issue of whether a union could as a matter of right have its negotiated grievance procedure cover prohibited personnel practice allegations dealing with the filling of a supervisory position. However, I believe that 5 U.S.C. § 2302, as it pertains to supervisory positions vis-a-vis bargaining unit employees, does not affect a "condition of employment" unless those supervisory positions have become a "condition of employment" as the result of a (permissive) contract provision. This conclusion is consistent with the same concept noted above, i.e., that contract clauses implicating supervisory positions do not constitute a "condition of employment" that is a mandatory subject of bargaining under the Statute. Thus, the Union's concerns based upon 5 U.S.C. § 2302 would not constitute a "grievance" under § 7103(a)(9) because the allegation does not address a claimed violation of a law affecting "conditions of employment" (because there is no permissive bargaining provision making the fillin