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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 narrow review authority and speaks in terms of all arbitration awards, yet we now know (and it is undisputed) that legal challenges to arbitration awards are not subject to some deferential standard regarding the arbitrator's application of law, rule, or regulation to the parties' agreement, and that the arbitration exception process does "impinge" on arbitrators as to legal issues by denying them the deference normally accorded them. While there may have been some doubt in the Authority's mind in 1990 as to the extent to which an arbitrator's legal analyses would be accorded no deference, that doubt was eliminated by the decision of United States Department of the Treasury, United States Customs [ v57 p336 ] Service, 43 F.3d 682, 686-87 (D.C. Cir. 1994), which stated that reviews of such legal questions would be "de novo." Id. Therefore, I view the Authority's Customs Service decision as providing no basis for the result urged here, and would overturn it as being in violation of §§ 7114 and 7122 of our Statute. Accordingly, I would utilize the Authority's negotiability precedent regarding "appropriate arrangements" to review the Agency's exceptions, including the use of the "tailoring" requirement for appropriate arrangements.
In assessing the Arbitrator's award against that precedent I would reach a different conclusion than the one arrived at in United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Marianna, FL, 56 FLRA 467, 469-70 (2000) (BOP, Marianna) because of the presence of the right to assign work argument, [n2] because of the more restrictive nature of this award (reassignments only in an emergency situation versus reassignments only for good cause and not on a routine basis in BOP, Marianna), and because it is more apparent that the award in the present case is meant to more clearly force the Agency to pay overtime than was the case in BOP, Marianna, even though the award here attempts to avoid making that point by not directly ordering such payment. [n3] In that regard as well, then, I would expressly hold that the award conflicts with Authority negotiability precedent involving these same employees, wherein the Authority found outside the duty to bargain a proposal to require the Agency, in all circumstances except emergencies, to use overtime to staff vacant positions prior to letting those positions go vacant. See AFGE, Local 1302, Council of Prison Locals C-33, 55 FLRA 1078 (1999). [n4]
Accordingly, based upon the above, I would set aside the Arbitrator's award as being in conflict with the Agency's noted § 7106 rights.
File 1: Authority's Decision in 57 FLRA No. 67
File 2: Opinion of Chairman Cabaniss
Footnote # 1 for 57 FLRA No. 67 - Opinion of Chairman Cabaniss
How assignment to a different post differs from an assignment to another position, such as by loan or detail, is not clear cut. While changing an employee's location usually does not involve the right to assign employees, the focus of this case is not where an employee works so much as it is an issue of whether the Agency is going to fill enough of those positions so as to keep hazards at a sufficiently low level. In that regard, then, it could be argued that this case involves the assigning - or not assigning - of employees to these correctional officer posts. Whether to fill vacant positions and how many of those vacant positions to fill involves the right to assign. See, e.g., AFGE, Local 3354, 54 FLRA 807, 812 (1998), and Int'l Plate Printers, Die Stampers, and Engravers Union of North America, AFL-CIO, Local 2, 25 FLRA 113, 146 (1987). It might also turn out that this matter is really an issue of the number of employees under § 7106(b)(1) of our Statute, although that issue is not before us. Consistent with that reasoning, I would change my vote in United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Marianna, Fla., 56 FLRA 467 (2000), even though the agency's assign employees argument there did not focus as clearly on this aspect of assigning employees.
Footnote # 2 for 57 FLRA No. 67 - Opinion of Chairman Cabaniss
Footnote # 3 for 57 FLRA No. 67 - Opinion of Chairman Cabaniss
The parties, and the Arbitrator, made references throughout the proceedings and the award to the fact that the Union was seeking, inter alia, the payment of overtime for correctional officers rather than permitting the Agency to fill the vacant positions through the reassignment of other personnel.
Footnote # 4 for 57 FLRA No. 67 - Opinion of Chairman Cabaniss