File 2: Opinion of Chairman Cabaniss

[ v60 p455 ]

Separate Opinion of Chairman Cabaniss:

      I write separately, not to express disagreement with the dismissal of this case, but with the analysis underlying the belief that this case is even properly before the Authority for resolution.

      Consistent with the court's holding in United States Dep't of the Treasury, United States Customs Serv. v. FLRA, 43 F.3d 682 (D.C. Cir. 1994), I question whether a defamation claim amounts to a grievance under our Statute (§ 7103(a)(9)) because the law of defamation does not appear "to have been issued for the very purpose of affecting the working conditions of employees-not one that merely incidentally does so." Id. at 689. The court also noted that "[t]he term `affecting working conditions,' [found in § 7103(a)(9)(C)(ii)] in turn, must have been thought to impose a real limitation on an arbitrator's authority." Id. If the grievance does not involve a law, rule, or regulation issued for the very purpose of affecting the working conditions of employees, then the grievance is "outside both the arbitrator's and the FLRA's jurisdiction." Id. And, regarding that jurisdictional question, "the Authority may question, sua sponte, whether it has subject matter jurisdiction to consider the merits of a dispute." United States Small Bus. Admin., Washington, D.C., 51 FLRA 413, 423 n.9 (1995) (citing to United States Dep't of the Army, Army Reserve