[ v57 p41 ]
Opinion of Chairman Cabaniss, dissenting in part:
I disagree with the majority's conclusion that the award satisfies Prong II of BEP, 53 FLRA at 151-54, and therefore does not violate management's rights to assign work and to select under § 7106(a)(2) of the Statute. [n1] The Arbitrator found that the participation on the rating panel of a particular management official was inconsistent with the agreement. His award requiring that the panel be entirely reconstituted is therefore, at a minimum, a broader remedy than is warranted by the findings in the award. In addition, Article 25, Section 6 concerns the ranking criteria applied in a selection action; it does not concern the composition of a rating and ranking panel. The composition of the panel is a separate and unrelated matter. A valid reconstruction clearly would not involve the replacement of the entire panel. Consequently, I would modify that portion of the award by permitting the Agency the option to utilize on the panel anyone other than the particular management official in question.
File 1: Authority's Decision in 57 FLRA No. 12 and Appendix
File 2: Opinion of Chairman Cabaniss
Footnote # 1 for 57 FLRA No. 12 - Opinion of Chairman Cabaniss
While I do not ascribe any reliance to using the current abrogation test set out in Customs Service, 37 FLRA 309, the use of that test is not dispositive to the present matter and therefore is not addressed here.