File 2: Opinion of Chairman Cabaniss

[ v60 p148 ]


Dissenting Opinion of Chairman Cabaniss:

      I write separately to explain why I would resolve this case in a manner other than that set out by the majority. For the following reasons, I would dismiss the negotiability appeal as not being properly before the Authority because it is in contravention of the Federal Employees Flexible and Compressed Work Schedules Act (the WSA), and would urge the parties to adhere to the requirements of the WSA by submitting their dispute to the Federal Service Impasses Panel (FSIP)for resolution.

      This may be the first opportunity to address the circumstance where parties have come to us with a negotiability dispute while midway through a process governed by 5 U.S.C. § 6131(c)(3) of the WSA, i.e., the parties have a collective bargaining agreement providing for the use of compressed schedules, and the Agency now wishes to terminate some of the compressed schedules. However, existing compressed and flexible schedules may terminated only if they have an "adverse agency impact" as defined by § 6131(b). Section 6131(c)(3) is clear in prohibiting agencies seeking to terminate already existing compressed schedules from doing so unilaterally. [n1]  Rather, an agency must (although the statute references "may") "reopen the agreement to seek termination of the schedule involved." Section 6131(c)(3)(A). If the parties reach impasse with respect to