File 2: Opinion of Chairman Cabaniss

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Dissenting Opinion of Chairman Cabaniss:

      I respectfully dissent from my colleagues regarding the analysis of this case. Consistent with the Authority's precedent cited in the majority decision regarding an agency's right under § 7106(a)(2)(A) to not assign/reassign employees in situations implicated by temporary reassignments, details, and loans, I would find that the Agency's right to assign employees is implicated as well as the Agency's right under § 7106(a)(2)(B) to assign work. [n1]  Additionally, and consistent with the following discussion, I would find the Authority's "abrogation" test to be fundamentally flawed and overturn the Arbitrator's award for being in violation of the Agency's § 7106 rights to assign employees and assign work.

      The right of an arbitrator to interpret a collective bargaining agreement is extremely broad, but is not without limit. One discussion of this right is in the Authority's case law pertaining to essence exceptions to arbitration awards, i.e., where one party challenges an arbitral interpretation of the parties' collective bargaining agreement. In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a); AFGE, Council 220, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find an award deficient (based upon an essence analysis) when the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) [ v57 p335 ] does not represent a plausible interpretation of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      There is no such deferential standard, however, when an arbitrator's contract interpretation is challenged as being contrary to law, rule, or regulation: the analysis of the arbitrator's rationale is done de novo, and one looks at whether the arbitrator's reasoning is consistent with the "applicable standard of law," to determine whether the award violates § 7122(a)(1), i.e., whether it is contrary to law. That "applicable standard of law" is § 7106(b)(3) in this instance, and our case law uses § 7106(b)(3) to determine whether the language in question "excessively interferes" with an agency's § 7106(a) rights. Section 7106(b)(3) does not recognize or authorize the ability to use one § 7106(b)(3) "appropriate arrangement" legal standard for the negotiation of collective bargaining agreements (which must not "excessively interfere" with § 7106(a) rights), then create a different § 7106(b)(3) "appropriate arrangement" legal standard for the interpretation of those same collective bargaining agreements (which must not "abrogate" § 7106(a) rights). This attempted distinction is not provided for by § 7106, or § 7122, and makes no sense whatsoever.

      Section 7114 of our Statute confirms that a § 7106(b)(3) conflict (or other matters discussed below) does not change after the appropriate arrangement language has gone into effect. Section 7114(c)(2) reflects an agency's right to review a collective bargaining agreement to determine whether it is in accordance with "the provisions of this chapter and any other applicable law, rule, or regulation." Actions taken to ensure that a provision is "in accordance with the provisions of this chapter" include, inter alia, whether a provision excessively interferes with the agency's rights and thus is barred by § 7106(b)(3). See, e.g., NTEU, 55 FLRA 1174 (1999) (disapproval of provision caused examination to determine whether provision excessively interfered with agency rights, in conflict with § 7106(b)(3)). Section 7114(c)(3) notes that, even where an agency does not approve or disapprove an agreement under § 7114(c)(2), the agreement then goes into effect and is binding, subject to those same "provisions of this chapter and any other applicable law, rule, or regulation."

      Authority precedent does not change this conclusion. In AFGE, Local 1858, 4 FLRA 361, 362 (1980), the Authority held that an agency's failure to disapprove a provision does not otherwise make enforceable a provision that is contrary to the Statute or any other applicable law, rule, or regulation. In VA, Washington, D.C., 15 FLRA 948, 953 (1984), the Authority dismissed a complaint against an agency accused of refusing to abide by certain already agreed to provisions that the agency believed were in violation of "applicable law." The Authority held that, even though the agency's disavowal of the legality of the provisions was not timely under § 7114(c)(2), "such tardiness does not alter the result" of the agency's actions because of § 7114(c)(3). Id. Consequently, I fail to see any basis for not finding that the standard of review under § 7114(c)(3) is the same as the standard of review under § 7114(c)(2), i.e., the use of an "excessive interference" test to determine whether a matter violates § 7106(b)(3).

      Also in this same vein, I find it inexplicable to single out § 7106(b)(3) for divergent treatment when assessing the term "provisions of this chapter" under § 7114(c)(2) and (3), while no other provisions or "any other applicable, law, rule, or regulation" are so treated.

      In defense of its opinion, the Customs Service decision argues that negotiation of agreements and arbitral interpretation of those same agreements, are different. What Customs Service does is to conflate the distinction between an arbitrator's deference in determining what a contract means (an essence analysis) with the total lack of deference to that same interpretation in terms of whether it conflicts with law (a de novo analysis).

      It is apparent that the Customs Service decision attempted to disregard that distinction by providing arbitral deference where none is permitted. Several portions of the Customs Service decision are illustrative of this conflation. That decision rejected use of the excessive interference test because it "unduly impinges on the role of arbitration and arbitrators under the Statute." 37 FLRA at 315. The Authority also went on to explain that it believed Congress expected it to "narrowly review" arbitration awards. Id. at 315-16. The Authority's discussion is replete with references to nar