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File 2: Opinion of Member Cabaniss

[ v55 p723 ]


Opinion of Member Cabaniss, dissenting in part:

      I respectfully dissent from Part X.D.2 of the majority opinion, ordering the parties to show cause why we should not refer, or direct the Agency to refer, this matter to the Office of the Special Counsel (OSC) with a request that the OSC investigate whether the warden committed a prohibited personnel practice. I believe the contemplated referral to the OSC would be outside our authority under section 7105 of the Statute, whether we make it ourselves or whether we order the Agency to make it. Moreover, I believe the other nontraditional remedies we are imposing are adequate to recreate the conditions and relationships with which the unfair labor practices interfered and to deter further violations of the Statute.

      The majority states that further investigation appears warranted to determine whether the warden committed a prohibited personnel practice, specifically a violation of 5 U.S.C. § 2302(b)(9). Our charter, however, does not include enforcement of that law. A different agency, the OSC, is charged with protecting employees from prohibited personnel practices. See 5 U.S.C. § 1212(a). Our mandate under section 7105(a) is to be responsible for carrying out the purpose of the Statute, and we should not stray beyond that mandate.

      Moreover, the General Counsel did not request this remedy, and at least as far as the record reflects, none of the individuals exercised their right to pursue such a remedy either. [n1] 

      In light of the above considerations, I believe it is inappropriate, both as a matter of law and as a matter of policy, for us to attempt to pursue the warden in another forum, and under a statute other than the one we are charged with enforcing.


File 1: Authority's Decision in 55 FLRA No. 127
File 2: Opinion of Member Cabaniss
File 3: ALJ's Decision


Footnote # 1 for 55 FLRA No. 127 - Opinion of Member Cabaniss

   Aggrieved employees affected by a prohibited personnel practice may elect not more than one of the following remedies: Filing a notice of appeal to the Merit Systems Protection Board under the applicable appellate procedures; filing a written grievance under the parties' negotiated procedure; or seeking corrective action from the OSC. 5 U.S.C. § 7121(g).