File 2: Opinion of Chairman Cabaniss
[ v62 p152 ]
Concurring opinion of Chairman Cabaniss:
While I agree with the resolution of this case, I write separately to express my disagreement with the consideration of evidence submitted after the due date for responses to the Notice and Order to Show Cause issued by the Authority in this case.
The record shows that on September 28, 2005, the Authority's former Office of Case Control issued a show-cause order in which the parties were to brief the issue of why the union's petition should not be dismissed because the agency head's disapproval of certain provisions of the parties' collective bargaining agreement was not timely served on the union, thus making the petition for review moot. The due date for briefs was October 12, 2005. On October 7, 2005, the agency requested an extension of time to file its brief, and the extension was granted until October 17, 2005. The union filed its brief on October 12, 2005, and the agency filed its brief on October 17, 2005. The union then requested leave to file a supplemental brief on October 24, 2005 to respond to the "misrepresentations" contained in the agency's brief, and provided supplemental information.
While the show-cause order was pending, the parties, with the concurrence of the Authority's representative, continued to provide evidence and arguments related to the issue raised in the show-cause order. To support the Authority's decision that the agency head's disapproval was not timely served on the union, the Authority now cites to the evidence included in the union's supplemental response, and obtained from the parties during the processing of the petition for review. [n*] This evidence was obtained well after the show-cause order's deadline for briefs on this issue had passed.
I disagree with the Authority's consideration of evidence provided by the parties after the deadline stated in the show-cause order. This process renders the order's deadline superfluous, and gives the parties the opportunity to continue to argue the issue raised by the show-cause order in a virtually unlimited fashion until the Authority decides the issue. I am unaware of any other adjudicatory agency that would allow parties to continually argue an issue in this manner.
The Authority routinely rejects party filings if they are submitted even a day late. Yet, in this case the Authority is not only considering evidence provided by the parties in a proceeding that is clearly outside the parameters of the show-cause order, and filed much later than the show-cause order's due date, but it is encouraging parties to submit such evidence. This case-by-case consideration of evidence submitted after a deadline has passed will create uncertainty as to the Authority's standard for accepting such evidence into the record, and it will cause confusion among the parties regarding when after-acquired evidence will be considered, and when it will be rejected. Parties may now believe it is necessary to continually submit evidence in similar circumstances to make sure the other party does not get the last word on an issue. Instead we should be encouraging the parties to provide their best arguments and evidence on an issue within the briefing schedule provided by the Authority. The practice discussed here does just the opposite. I would not consider this additional information in deciding this case.
File 1: Authority's Decision in 62 FLRA No. 39
File 2: Opinion of Chairman Cabaniss
Footnote * for 62 FLRA No. 39 - Chairman Cabaniss
In the decision, the majority does not accept the union's supplemental submission because the evidence in the supplemental submission is properly in the record as attachments to the union's reply to the agency's statement of position. Decision at n.2. Since I would not consider the evidence provided during the processing of the union's petition for review in deciding this case, it is still necessary to decide the issue of whether the union's leave to file the supplemental submission should be granted or denied on its own merits, not simply because the information contained therein is already considered to be in the record through other procedural avenues