File 2: Opnion of Chairman Cabaniss
[ v61 p544 ]
Separate opinion of Chairman Cabaniss, dissenting in part:
While I agree with the majority that there is not an absence of precedent regarding the meaning of "preponderance" under § 7103(a)(10) of the Statute, I do not agree with the other conclusions and so I dissent as to the remainder of the majority opinion.
I find no basis for the majority's decision to not clarify our precedent here just because to do so might not affect the outcome in this particular case. Regardless of whether the Activity's claims result in overturning the Regional Director's (RD's) decision here, the fact remains that our current state of precedent in this area is vague to the point of providing little substantive guidance. Even the RD acknowledged the inconsistency regarding our precedent regarding "employment time" and that it is found in only three Authority decisions. And, while I agree that the facts of each case should drive the ultimate resolution of the matter, I do not agree that the facts of each case should drive what the statutory definition of "employment time" is supposed to mean.
And, in terms of furthering a better understanding of "employment time" I raise the concern that the RD's decision and analysis seems to have failed to consider other Authority precedent that, once the Authority finally takes a hard look at this area, seems relevant to divining the more detailed meaning of "employment time." While this may sound like a "failure to apply established law" issue, the problem is that an analysis of any of this precedent, when considered with other statements in other cases, becomes so lacking in guidance as to make a "failure to apply established law" allegation a moot point. While it may be that the considerations the RD came up with to justify his decision are the correct ones, it also appears that many of the actions taken by the employees at issue here could or should have been considered as supervisory work, and done for a preponderance of their employment time. I would grant the application for review to allow the parties, and the general public, an opportunity to address the issue, and then decide whether the RD's decision was correct.
As regards that Authority precedent, other considerations exist and seem to warrant a more detailed analysis. For example, in the underlying Administrative Law Judge's decision in the Veterans Admin. Med. Ctr., Fayetteville, N.C. 8 FLRA 651 (1982) decision (VAMC), the Judge found that time spent on assuring that subordinates are performing their primary duties constitutes supervisory work, even though that involves the supervisor performing the same kind of hands on [ v61 p545 ] activity as those being supervised. VAMC at 660-61. That same concept was again relied on by the judge when the judge found that directing employees to ensure they carry out their assigned tasks is supervisory work. Id. at 662. Given the lack of any definitive guidance in our precedent regarding what constitutes "employment time" under the Statute I am concerned about the extent to which these holdings were given any viable consideration in the present case. I also note that this focus on supervisory status as involving responsibility for ensuring the work of others is accomplished is reflected in other Authority precedent, notably the Authority's United States Dep't of the Navy, Marine Corps Base, Camp Pendleton, Cal., 8 FLRA 276, 278 (1982), where the Authority found that assuring the maintenance and upkeep of fire equipment was supervisory work.
It may well be that the RD's decision here was correct. However, given the lack of precedent as to what "employment time" means I do not believe it possible to conclude one way or the other as to whether the RD properly assessed the record and reached the correct conclusion. I also do not believe it is possible to conclude whether the RD failed to apply established law - because we have no "established law" to apply. [n1] Accordingly, I would grant the application for review, receive input from the parties and the general public on this issue, and then determine whether the RD correct