File 2: Opinion of Chairman Cabaniss

[ v59 p987 ]


Opinion of Chairman Cabaniss, writing separately:

      I write separately to join with the majority opinion in addressing the merits of the Agency's exceptions on the merits in order to avoid an impasse in the Authority's disposition of this case. See, e.g., Ft Bragg Assoc. of Educators, NEA, 30 FLRA 508, 552 (1987) (Opinion of Chairman Calhoun), petition for review granted as to other matters sub nom. Fort Bragg Assoc. of Educators v. FLRA, 870 F.2d 698 (D.C. Cir. 1989). However, I believe the more appropriate resolution of this case would be to find that the parties' negotiated grievance procedure does not apply to complaints regarding employee selection for positions outside the bargaining unit.

      At the heart of this matter is the inherent tension between the right of an arbitrator to interpret a collective bargaining agreement and have that interpretation subject to the deferential standard of review, i.e., an essence standard, and the right of a party to require that its waiver of a statutory right be shown to be clear and unmistakable, i.e., that there be a de novo review of the legal waiver rather than subjecting the waiver issue to an essence evaluation. I believe the Supreme Court's decision in Wright v. Universal Maritime Service Corp., et al, 525 U.S. 70, 119 S. Ct. 391 (1998) (Wright), resolves that issue. I believe that Wright makes 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 that 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 subject 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, 525 U.S. 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 defer 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 Agency alleges that the Arbitrator's interpretation of the collective bargaining agreement's general provisions regarding grievance and arbitration procedures, to apply those procedures to the filling of positions outside of the bargaining unit, constitutes a waiver of the Agency's statutory right to not have the bargaining unit's collective bargaining agreement apply to positions outside of the bargaining unit. Consistent with Wright, I would find that resolution of that question requires a showing that the Agency engaged in a clear and unmistakable waiver of its right to not have the agreement apply to such positions, 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. [n1] 

      Authority precedent notes that a party may waive a statutory right. Social Security Administration, 31 FLRA 1277, 1279 (1988) (SSA). However, such a waiver must be clear and unmistakable. See, e.g., Dep't of the Navy, 56 FLRA at 850. 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 Agency clearly and unmistakably waived its statutory right to fill supervisory and management positions without being subject to the negotiated grievance procedure.

      There is nothing in the underlying facts and circumstances of the present case to warrant a different [ v59 p988 ] outcome. Because the parties dispute the subject matter of the grievance, there is a need to first determine whether the grievance pertains to the filling of non-bargaining unit position, or something else. After reviewing the matter, I conclude that the Agency's review of the grievant's qualifications is too inextricably intertwined, and an integral part of, the selection process for this non-bargaining unit position to be considered anything else.

      Challenges to an agency's selection of an employee must be linked to some violation of law or procedural errors such as here, i.e., that the selection was not from "among properly ranked and certified candidates for promotion[,]" per § 7106(a)(2)(C)(i). The subject matter of this grievance clearly reflects a challenge to a promotion action, more specifically, that an agency improperly rated and ranked candidates when it filled a position. See United States Dep't of the Treasury, United States Customs Serv., Savannah, Ga., 43 FLRA 1355 (1992). I also believe there is no basis for modifying this outcome based upon the remedy being sought by a party. Thus, I find that the subject matter of this grievance pertains to a permissive subject of bargaining, thus requiring a determination as to whether the Agency waived its right under the Statute to not have to bargain over this topic.

      I also note that it is questionable as to whether the Arbitrator even found that a waiver took place, regardless of the manner of analysis to arrive at that conclusions. Upon review of the award, I believe that the Arbitrator never found that the parties negotiated an agreement permitting employees to use the negotiated grievance procedure to challenge non-selection for non-bargaining unit positions. To the contrary, the Arbitrator sidestepped the issue entirely when he expressly rejected the relevancy of the Agency's arguments that it had negotiated over a permissive topic of negotiation, i.e., the filling of non-bargaining unit positions. The Arbitrator then went on to note that the parties had not expressly excluded from the scope of the negotiated grievance procedure challenges to agency qualifications determinations (which has nothing to do with whether the parties included a particular subject matter into the agreement), and that his view of grievance's issue was would seem to fit within the agreement's references to "first consideration" and "competitive promotion". Award at 10.

      I conclude from the above that the Arbitrator never found the Agency agreed to extend the agreement to the filling of non-bargaining unit positions. As a result, it was error for the Arbitrator to find that the grievant could use the negotiated grievance procedure to challenge the Agency's qualifications determination regarding this non-bargaining unit position. Thus, it was also error to find that the grievance was arbitrable.

      However, even if one were to reach the opposite result, doing so would have to be accomplished without the presence of clear and unmistakable evidence supporting the conclusion that the Agency waived its right to decline to negotiate over a permissive subject of bargaining. In addition to the obligation to bargain concerning employees' conditions of employment, "the parties to a collective bargaining relationship may also negotiate over a wide range of `permissive' subjects." United States Food & Drug Admin., Northeast and Mid-Atlantic Regions, 53 FLRA 1269, 1273 (1998) (FDA). "As the name implies, parties may, but are not required to, bargain over permissive subjects." Id. at 1273-74. Permissive subjects include "proposals that a party negotiate[s] to limit a right granted to it by the Statute." Id. See generally AFGE, Local 32, 51 FLRA 491, 497 n.11 (1995) (noting that bargaining proposals fall into three categories under the Statute: mandatory, permissive, and prohibited). There is nothing in the record to establish by clear and convincing evidence that the Agency waived its right to decline to negotiate filling non-bargaining unit positions under the terms of the parties' agreement. [n2] 

      In his award, the Arbitrator conducted a brief discussion of the Agency's argument that the filling of non-bargaining unit positions was not encompassed by the terms of the parties' agreement. The Arbitrator summarized that "[i]t seems to me that not all of the subjects [the Agency] raises have much, if any, bearing on the grievance under consideration in this matter." Award at 8. Instead of addressing the Agency's contention that the filling of non-bargaining unit positions was not encompassed in the parties' agreement, the Arbitrator concluded that the Agency "misperceives, perhaps from the outset, the underlying reason(s) for the grievance." Id. at 9.

      Given the inadequate justification provided by the Arbitrator to support a clear and unmistakable finding that the parties' agreement applies to filling non-bargaining unit positions, I find there was no waiver of the Agency's statutory right not to have the agreement pertain to filling non-bargaining unit positions. Consequently, even if the Arbitrator had found that the agreement applied to filling non-bargaining unit positions, that arbitral finding would be contrary to law. As a result, the arbitrability finding would also be contrary to law.

      Therefore, I believe the more appropriate disposition in this case would be to set aside the award because the grievance was not substantively arbitrable.


File 1