File 2: Opinion of Chairman Cabaniss
[ v59 p945 ]
Opinion of Chairman Cabaniss, dissenting in part:
I write separately to explain why I believe the majority improperly denies the Union's exceptions regarding the Interest Arbitrator's award as to the institutional grievances and Union-initiated bargaining provisions. Contrary to the majority, I would find that the Union did not, and has not, waived its statutory rights affected by those two provisions.
Regarding the provisions involving grievances and interim negotiations, and at odds with the majority's statement that the Union made no objection about the interest arbitration proceedings, the Union specifically argued to the Interest Arbitrator that the Union's pursuit of a ULP and an institutional grievance was a "statutory right which it has not waived." Award at 7. The Union also argued to the Interest Arbitrator that the Agency's proposed limit, on Union proposals that were not "discussed" in term, mid-point or other previous bargaining sessions, was "contrary to law because it expands the Authority's `waiver' doctrine." Id. at 26. In support, the Union cited Headquarters, 127th Tactical Fighter Wing, Mich. Air Nat'l Guard, Selfridge Nat'l Guard Base, Mich., 46 FLRA 582 (1992).
At the heart of this case ultimately is the issue of whether the Union waived its rights under 5 U.S.C. § 7116(d) and our precedent to file both a grievance and an unfair labor practice charge over what is seemingly the same circumstance. Also at issue is whether the Union waived its statutory right to fully assert Authority precedent that defines what is or is not "covered by" a collective bargaining agreement for the statutory bargaining purpose of determining whether the Union may initiate mid-term bargaining over a particular topic because it is not already "covered by" the parties' agreement.
Even though this issue arises in the context of collective bargaining, I believe that any alleged waiver by the Union regarding these statutory rights must be shown to be clear and unmistakable, and that the Authority will conduct a de novo review of the Interest Arbitrator's determination that waiver took place. I believe that the Supreme Court's decision in Wright v. Universal Maritime Service Corp., et al, 525 U.S. 70, 119 S. Ct. 391 (1998) (Wright), mandates those conclusions. The Court's decision in Wright makes it clear that a party's waiver of a statutory right must be clear and unmistakable, that such a waiver is a statutory (not contractual) issue, and that the matter is not subject to any presumption of arbitrability or the principal rationale justifying that presumption, which is that arbitrators are in a better position than courts to interpret the terms of a collective bargaining agreement.
The Court in Wright examined and interpreted the terms of an underlying collective bargaining agreement to determine whether the union had waived its employees' right to pursue an Americans with Disabilities Act (ADA) claim outside of the terms of the negotiated grievance procedure, and hence whether the district court's dismissal of that ADA claim for failure for failing to follow the agreement's arbitration procedure was proper. In addressing the inherent tension between arbitration (i.e., the right of arbitrators/the collective bargaining process to handle such matters) and the statutory rights of parties to submit (or not) certain issues to that arbitration process, the Court reaffirmed that the waiver of statutory rights in such situations must be clear and unmistakable, and that the resolution of such issues does not arise out of the contract, but out of the statute alleged to have been waived. Wright at 78-79. In that case, the Court found that the district court's interpretation of the parties' agreement provisions, to require employees to file arbitration appeals regarding ADA claims, was at odds with employees' right to file lawsuits. That the Court by its actions expressly did not make any deferral to the contract, or the district court's deferral to the general terms of the agreement, is persuasive in its own right as to whether the question of waiver is a contractual (deferential essence standard) or legal (de novo review of clear and unmistakable waiver) issue.
The Wright decision's impact on the present case is clear. Here the Union alleges that the Interest Arbitrator's interpretation of the Union's actions, to bargain or not bargain certain matters, constitutes a waiver of the Union's statutory rights under § 7116(d) of our Statute and of the Union's statutory right under Authority precedent as to what is or not considered to be "covered by" the parties' collective bargaining agreement. Consistent with Wright, I would find that resolution of that question requires a showing that the Union engaged in a clear and unmistakable waiver of its statutory rights enumerated above, and that a de novo review must be conducted to determine whether that clear and unmistakable waiver occurred.
The above outcome is totally consistent with Authority precedent. The Authority's role in reviewing arbitration awards depends on the nature of the exceptions raised by the appealing party. See United States Customs Serv. v. FLRA, 43 F.3d 682, 686 (D.C. Cir. 1994). In NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (NTEU Chapter 24), the Authority stated that if the arbitrator's decision is challenged, as it is here, on the ground that it is contrary to any law, rule, or regulation, the Authority will review the legal question de novo. In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id. [*]
Authority precedent notes that a party may waive a statutory right, and such an analysis is not a novel issue for the Authority. Social Security Administration, 31 FLRA 1277, 1279 (1988) (SSA). However, such a waiver must be clear and unmistakable. See, e.g., United States Dep't of the Navy, Naval Surface Warfare [ v59 p946 ] Ctr., Indian Head Div., Indian Head, Md., 56 FLRA 848, 850 (2000). Waivers of statutory rights may be established by express agreement or bargaining history. SSA, 31 FLRA at 1279; United States Dep't of the Treasury, IRS, 56 FLRA 906, 912 (2000). Here, the evidence does not establish that the Union clearly and unmistakably waived its statutory rights under § 7116(d) and our precedent regarding the statutory duty to bargain and how it is affected by bargaining matters that are already "covered by" a collective bargaining agreement.
There is nothing inherent about agreeing to interest arbitration that supports the conclusion that the Union here waived its statutory rights to not agree to bargain over what are clearly permissive topics. See NTEU, 59 FLRA 217, 220 (2003) (Member Pope dissenting), petition for review filed sub nom. NTEU v. FLRA, Case No. 03-1351 (D.C. Cir. Oct. 17, 2003) ("[i]t is well established that a party cannot be forced to waive its statutory rights, and . . . a proposal to require such a waiver constitutes a permissive subject of bargaining.") The facts of the case also make clear the conclusion that engaging in interest arbitration is not antithetical to retaining one's right to not engage in collective bargaining over permissive matters. To the contrary, the Union put forward collective bargaining proposals in these two areas, and the proposals advanced by the Union in no way waived any of the Union's statutory rights.
Thus, there is nothing inherently contradictory, to the Union's desire to not bargain over permissive matters, from agreeing to interest arbitration where the Union submitted proposals which could have been accepted by the Interest Arbitrator and there would have been no waiver of the Union's rights as a result thereof. While a different result could be argued if the Union had agreed to a waiver of its statutory rights by virtue of the language of its own proposals, such was not the case here. Rather, it is the Interest Arbitrator's own decision to waive the Union's statutory rights, by choosing the Agency's proposals that infringe upon those rights, that causes the problems by in effect forcing the Union to agree to waive its right to not negotiate over or agree to this language.
I also note that the Union affirmatively advised the Interest Arbitrator of the Union's determination not to bargain over these permissive matters. Award at 7 (Arbitrator notes Union assertion that Union not waiving statutory right to file both unfair labor practice and grievance) and 26 (Arbitrator notes Union assertion that Agency proposal on bargaining is contrary to law because it conflicts with Authority "covered by" precedent). And, I note precedent points out that a proposal otherwise outside the duty to bargain does not lose that status solely because the parties have earlier agreed to that same proposal. See United States Dep't of Commerce, Patent and Trademark Office, 53 FLRA 858, 870-71 (1997) ("`It is well-established that a party is not required to bargain over a permissive subject of bargaining.' Consistent with this principle, Authority precedent clearly states that [a party] that elects to bargain over [permissive] matters may withdraw from bargaining at any time before reaching agreement[.]" (quoting FDIC, Headquarters, 18 FLRA 768, 771 (1985)); AFGE, Local 225, 56 FLRA 686, 689 (2000) (citing NATCA, Rochester Local, 56 FLRA 288 (2000)) (prior bargaining over permissive subjects does not make mandatory future bargaining over those subjects). In light of these express affirmations by the Union, that it was not waiving its rights to not negotiate over or agree to the terms of the Agency's proposals, I have a hard time finding a clear and unmistakable waiver of the Union's right to not agree to or negotiate over the substance of the Agency's proposals.
I also find unconvincing the argument that the objected to proposals are not contrary to law per se or, put another way, because the proposals amount to permissive bargaining matters for the Union the Union's allegedly involuntary agreement to them does not raise a contrary to law argument. It is a violation of our Statute to force a party to bargain to impasse over one of that party's permissive bargaining topic. See, e.g., United States Food and Drug Admin., NE. and Mid-Atl. Regions, 53 FLRA 1269 (1998), reconsideration denied, 54 FLRA 630 (1998) (agency violated statute by insisting to impasse on proposals). Given that precedent, I find it difficult to accept at face value the majority's assertion that the Union's claims here don't amount to a valid contrary to law issue if the Interest Arbitrator is indeed involuntarily forcing the Union to agree to a permissive bargaining topic - and I am aware of no basis by which an interest arbitrator can force a party to violate that party's rights protected by the Statute.
Accordingly, I would find that the award is contrary to law as its concerns the grievance and interim negotiations provisions. I find nothing confusing or improper about utilizing the waiver analysis. It is true that the Authority has utilized a waiver analysis in the past to imprope