File 2: Opinion of Chairman Cabaniss
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Dissenting Opinion of Chairman Cabaniss:
I write separately to explain why I would remand this case for further proceedings. While I agree that the Respondent indeed took part in a variety of activities surrounding the arbitration proceedings, I do not find that conduct to be dispositive in and of itself. Rather, and consistent with the court decision in Ables v. United States, 230 Ct. Cl. 863 (Ct. Cl. 1982) (Ables), and its impact on Authority precedent beginning with Dep't of Labor, Employment Standards Administration/Wage and Hour Div., Wash., D.C., 10 FLRA 316 (1982) (DOL), I would resolve the case based upon whether in effect the Respondent is asserting that the Arbitrator in the underlying case has no authority to resolve any issue the Union is attempting to resolve through the arbitration process, to include questions of arbitrability.
Section 7121(a) mandates that questions of arbitrability must be submitted to the arbitrator for resolution. Or, more specifically, "the Authority has held that a refusal by one party to participate in the procedures for the resolution of grievances, including questions of arbitrability, conflicts with the requirements of § 7121." United States Dep't of the Air Force, Headquarters 92nd Air Refueling Wing, Fairchild AFB, Wash., 59 FLRA 434, 435 (2003), citing to, inter alia, DOL, 10 FLRA at 321. In DOL, th