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Dissenting Opinion of Chairman Cabaniss:
I write in dissent only regarding the matter of the Arbitrator's finding that no violation of the Agency's statutory duty to bargain is involved here. [n1] The central contractual bargaining obligation is entitled "Appropriate Matters for Impact and Implementation Bargaining." It is without dispute that part of an agency's statutory duty to bargain includes what is commonly referred to as impact and implementation bargaining, i.e., bargaining tied to an exclusive representative's rights under 5 U.S.C. § 7106(b)(2) & (3).
In the present matter, contrary to the majority, I would find that a statutory unfair labor practice allegation is present. I would not require the Agency to specifically plead that certain contract provisions reflected statutory bargaining obligations, especially where the Agency asserts that an unfair labor practice allegation is at issue, as well as its unfair labor practice defense. I also would not defer to an arbitrator's statement that no statutory issue is presented where no interpretation of the contract is put forward to explain how the contractual bargaining obligation is different from the statutory mandate, the provision in question expressly references "impact and implementation bargaining," a phrase which reflects what amounts to a term of art in Federal sector labor management relations, and the arbitrator expressly disclaimed any ability to review a statutory unfair labor practice allegation. [n2] As a result, I would find that the Arbitrator erred in processing this case, and would remand to afford both parties their rights and obligations attendant to a statutory unfair labor practice allegation. In doing so, I would also expressly require that the Arbitrator determine whether or not the Agency's "covered by" argument was persuasive, as well as permit the parties their right to judicial review of that ultimate decision.
File 1: Authority's Decision in 57 FLRA No. 199
File 2: Opinion of Chairman Cabaniss
Footnote # 1 for 57 FLRA No. 199 - Opinion of Chairman Cabaniss
I do not agree with the majority's contention that "neither party has excepted to" the Arbitrator's finding that only a contractual duty to bargain issue was before him. As I read its Exceptions, the Agency clearly did so. See Exceptions at 10-11.
Footnote # 2 for 57 FLRA No. 199 - Opinion of Chairman Cabaniss
Given this belief, it is easy to see why the Arbitratorstated that he had a "contractual" duty before him.