1 FLRC 158; FLRC NO. 71A-51; JANUARY 24, 1972.
MR. JOHN F. GRINER
NATIONAL PRESIDENT
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
400 FIRST STREET, N.W.
WASHINGTON, D.C. 20001
(SYNOPSIS) FLRC NO. 71A-51
AFGE LOCAL 361 AND NATIONAL NAVAL MEDICAL CENTER (BETHESDA NAVAL
HOSPITAL), BETHESDA, MD. THE CONTROVERSY BETWEEN THE PARTIES RELATED TO
THE NEGOTIABILITY OF THE UNION'S GRIEVANCE AND ARBITRATION PROPOSAL
UNDER SECTIONS 13 AND 14 OF E.O. 11491 AND PERTINENT NAVY AND CSC
REQUIREMENTS. AFTER THE DETERMINATION BY THE AGENCY AND THE FILING OF
THE APPEAL BY THE UNION, E.O. 11616 BECAME EFFECTIVE, REVOKING SECTION
14 AND MATERIALLY REVISING SECTION 13 OF E.O. 11491; MAKING
INAPPLICABLE THE CSC REGULATIONS INVOLVED; AND IN EFFECT REQUIRING
AMENDMENT OF THE SUBJECT NAVY DIRECTIVE.
COUNCIL ACTION (JANUARY 24, 1972). THE COUNCIL DENIED REVIEW ON THE
GROUND OF MOOTNESS, WITHOUT PASSING ON THE MERITS OF THE QUESTIONS
RAISED IN THE APPEAL.
DEAR MR. GRINER:
REFERENCE IS MADE TO YOUR PETITION FOR REVIEW OF A NEGOTIABILITY
DETERMINATION BY THE DEPARTMENT OF THE NAVY, IN THE ABOVE-ENTITLED CASE.
THE DISPUTE BETWEEN YOUR ORGANIZATION AND THE NAVY, AS REFLECTED IN
YOUR APPEAL, CONCERNS THE NEGOTIABILITY OF THE UNION'S PROPOSED
GRIEVANCE AND ARBITRATION PROCEDURES, UNDER SECTIONS 13 AND 14 OF E.O.
11491, AND RELATED NAVY AND CSC REQUIREMENTS. AFTER THE DETERMINATION
BY THE NAVY AND AFTER YOUR APPEAL TO THE COUNCIL, E.O. 11616 BECAME
EFFECTIVE, REVOKING SECTION 14 AND MATERIALLY REVISING SECTION 13 OF
E.O. 11491; MAKING INAPPLICABLE THE CSC REGULATIONS INVOLVED; AND IN
EFFECT REQUIRING AMENDMENT OF THE NAVY DIRECTIVE, THE VALIDITY OF WHICH
IS THE PRINCIPAL ISSUE IN YOUR APPEAL.
IN THE COUNCIL'S OPINION, THE ABOVE CHANGES EFFECTED BY E.O. 11616
HAVE CLEARLY RENDERED MOOT THE NEGOTIABILITY DISPUTE PRESENTED IN THIS
CASE AND REQUIRE DENIAL OF YOUR PETITION ON THAT GROUND. ACCORDINGLY,
THE COUNCIL HAS DIRECTED THAT YOUR PETITION FOR REVIEW BE DENIED,
WITHOUT PASSING ON THE MERITS OF THE QUESTIONS RAISED IN YOUR APPEAL.
BY DIRECTION OF THE COUNCIL.
CC: ROBERT H. WILLEY
NAVY
1 FLRC 155; FLRC NO. 71A-50; JANUARY 21, 1972.
MR. HERBERT CAHN, PRESIDENT
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES LOCAL 476
P.O. BOX 204
LITTLE SILVER, NEW JERSEY 07739
(SYNOPSIS) FLRC NO. 71A-50
NFFE LOCAL 476 AND DEPARTMENT OF THE ARMY. THE UNION PETITIONED FOR
REVIEW OF A DISPUTE OVER THE VALIDITY OF ARMY REGULATIONS CONCERNING THE
WAITING PERIOD FOR QUALITY INCREASES. HOWEVER, IT DID NOT APPEAR FROM
THE APPEAL THAT THE DISPUTE AROSE "IN CONNECTION WITH NEGOTIATIONS"
BETWEEN THE UNION AND THE AGENCY. NOR DID THE UNION IDENTIFY OR ADVERT
TO ANY "PROPOSAL" SOUGHT TO BE INCLUDED IN ANY AGREEMENT CONCERNING THE
MATTER.
COUNCIL ACTION (JANUARY 21, 1972). THE COUNCIL DENIED REVIEW SINCE
THE UNION'S APPEAL FAILED TO MEET THE CONDITIONS PRESCRIBED FOR REVIEW
IN SECTION 11(C)(4) OF THE ORDER.
DEAR MR. CAHN:
REFERENCE IS MADE TO YOUR APPEAL TO THE COUNCIL, UNDER SECTION
11(C)(4) OF THE ORDER AND SECTION 2411.12(A) OF THE COUNCIL'S RULES OF
PROCEDURE, FOR REVIEW OF A DISPUTE OVER THE VALIDITY OF CERTAIN AGENCY
REGULATIONS, IN THE ABOVE-ENTITLED CASE.
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR APPEAL, AND THE OPPOSITION
THERETO FILED BY DEPARTMENT OF THE ARMY, AND HAS DECIDED THAT REVIEW OF
YOUR APPEAL MUST BE DENIED.
SECTION 11(C)(4) OF THE ORDER, WHICH IS INCORPORATED BY REFERENCE IN
SECTION 2411.12(A) OF THE COUNCIL'S RULES, PROVIDES IN CONTEXT AS
FOLLOWS:
SEC. 11. NEGOTIATION OF AGREEMENTS . . .
(C) IF, IN CONNECTION WITH NEGOTIATIONS, AN ISSUE DEVELOPS AS TO
WHETHER A PROPOSAL IS
CONTRARY TO LAW, REGULATION, CONTROLLING AGREEMENT, OR THIS ORDER AND
THEREFORE NOT
NEGOTIABLE, IT SHALL BE RESOLVED AS FOLLOWS:
(1) AN ISSUE WHICH INVOLVES INTERPRETATION OF A CONTROLLING AGREEMENT
AT A HIGHER AGENCY
LEVEL IS RESOLVED UNDER THE PROCEDURES OF THE CONTROLLING AGREEMENT,
OR, IF NONE, UNDER AGENCY
REGULATIONS;
(2) AN ISSUE OTHER THAN AS DESCRIBED IN SUBPARAGRAPH (1) OF THIS
PARAGRAPH WHICH ARISES AT
A LOCAL LEVEL MAY BE REFERRED BY EITHER PARTY TO THE HEAD OF THE
AGENCY FOR DETERMINATION;
(3) AN AGENCY HEAD'S DETERMINATION AS TO THE INTERPRETATION OF THE
AGENCY'S REGULATIONS
WITH RESPECT TO A PROPOSAL IS FINAL;
(4) A LABOR ORGANIZATION MAY APPEAL TO THE COUNCIL FOR A DECISION
WHEN--
(I) IT DISAGREES WITH AN AGENCY HEAD'S DETERMINATION THAT A PROPOSAL
WOULD VIOLATE
APPLICABLE LAW, REGULATION OR APPROPRIATE AUTHORITY OUTSIDE THE
AGENCY, OR THIS ORDER, OR
(II) IT BELIEVES THAT AN AGENCY'S REGULATIONS, AS INTERPRETED BY THE
AGENCY HEAD, VIOLATE
APPLICABLE LAW, REGULATION OF APPROPRIATE AUTHORITY OUTSIDE THE
AGENCY, OR THIS ORDER.
THE DISPUTE IN THE PRESENT CASE OVER THE VALIDITY OF ARMY'S
REGULATIONS DOES NOT APPEAR FROM YOUR APPEAL TO HAVE ARISEN "IN
CONNECTION WITH NEGOTIATIONS" BETWEEN YOUR UNION AND THE AGENCY.
MOREOVER, YOU HAVE NOT IDENTIFIED NOR ADVERTED TO ANY "PROPOSAL" SOUGHT
TO BE INCLUDED IN ANY AGREEMENT CONCERNING THE MATTER.
UNDER THESE CIRCUMSTANCES, YOUR APPEAL FAILS TO MEET THE CONDITIONS
PRESCRIBED FOR REVIEW IN SECTION 11(C)(4) OF THE ORDER, AND THE COUNCIL
HAS DIRECTED, IN ACCORDANCE WITH SECTION 2411.12(A) OF ITS RULES, THAT
REVIEW OF YOUR APPEAL BE DENIED.
FOR THE COUNCIL.
CC: G. L. OLMSTED
ARMY
1 FLRC 152; FLRC NO. 71A-28; JANUARY 21, 1972.
CERTIFIED MAIL
MR. FLOYD E. SMITH, INTERNATIONAL PRESIDENT
INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, AFL-CIO
1300 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20036
MR. WILLIAM C. VALDES
STAFF DIRECTOR
OFFICE OF PERSONNEL POLICY
OFFICE OF ASSISTANT SECRETARY
OF DEFENSE
THE PENTAGON
WASHINGTON, D.C. 20301
(SYNOPSIS) FLRC NO. 71A-28
IAM-AW LOCAL LODGE 830 AND NAVAL ORDNANCE STATION, LOUISVILLE, KY.
THE DISPUTE CONCERNED THE NEGOTIABILITY OF THE UNION'S PROPOSED
GRIEVANCE AND ARBITRATION PROCEDURES UNDER SECTIONS 13 AND 14 OF E.O.
11491 AND RELATED NAVY AND CSC REQUIREMENTS. FOLLOWING THE COUNCIL'S
ACCEPTANCE OF THE APPEAL, E.O. 11616 WAS ADOPTED AND BECAME EFFECTIVE,
REVOKING SECTION 14 AND MATERIALLY REVISING SECTION 13 OF E.O. 11491;
MAKING INAPPLICABLE THE CSC REGULATIONS INVOLVED; AND IN EFFECT
REQUIRING AMENDMENT OF THE DISPUTED NAVY DIRECTIVE.
COUNCIL ACTION (JANUARY 21, 1972). THE COUNCIL DENIED THE UNION'S
APPEAL AS MOOT, WITHOUT PASSING ON THE MERITS OF THE QUESTIONS RAISED IN
THE APPEAL.
GENTLEMEN:
REFERENCE IS MADE TO THE UNION'S PETITION FOR REVIEW OF A
NEGOTIABILITY DISPUTE IN THE ABOVE-ENTITLED CASE, WHICH APPEAL WAS
ACCEPTED FOR REVIEW BY THE COUNCIL ON AUGUST 26, 1971.
THE CONFLICT BETWEEN THE PARTIES, AS APPEALED TO THE COUNCIL,
CONCERNED THE NEGOTIABILITY OF THE UNION'S PROPOSED GRIEVANCE AND
ARBITRATION PROCEDURES, UNDER SECTIONS 13 AND 14 OF E.O. 11491 AND
RELATED NAVY AND CSC REQUIREMENTS. AFTER THE COUNCIL'S ACCEPTANCE OF
THE PETITION FOR REVIEW, E.O. 11616 WAS ADOPTED, EFFECTIVE NOVEMBER 24,
1971, WHICH REVOKED SECTION 14 AND MATERIALLY REVISED SECTION 13 OF E.O.
11491; MADE INAPPLICABLE THE CSC REGULATIONS INVOLVED; AND IN EFFECT
REQUIRED AMENDMENT OF A NAVY DIRECTIVE THE VALIDITY OF WHICH WAS A
PRINCIPAL ISSUE IN THE APPEAL.
IN THE COUNCIL'S OPINION, THE FOREGOING CHANGES EFFECTED BY E.O.
11616 HAVE CLEARLY RENDERED MOOT THE NEGOTIABILITY DISPUTE PRESENTED IN
THE INSTANT CASE AND REQUIRE DISMISSAL OF THE UNION'S APPEAL ON THAT
GROUND. ACCORDINGLY, THE COUNCIL HAS DIRECTED THAT THE UNION'S PETITION
FOR REVIEW BE DISMISSED, WITHOUT PASSING ON THE MERITS OF THE QUESTIONS
RAISED IN THE APPEAL.
BY DIRECTION OF THE COUNCIL.
CC: MR. J. F. GRINER
AFGE
1 FLRC 144; FLRC NO. 71A-12; JANUARY 19, 1972.
NAVAL ELECTRONIC SYSTEMS COMMAND
ACTIVITY, BOSTON, MASS.
AND
LOCAL UNION NO. 15, AMERICAN
FEDERATION OF TECHNICAL ENGINEERS,
AFL-CIO
(SYNOPSIS) FLRC NO. 71A-12
NAVAL ELECTRONIC SYSTEMS COMMAND ACTIVITY, BOSTON, MASS., ASSISTANT
SECRETARY CASE NO. 31-3371 EO. THE MAJOR POLICY ISSUE WHICH THE COUNCIL
HAD ACCEPTED FOR REVIEW (REPORT NO. 7) WAS WHETHER THE ASSISTANT
SECRETARY HAS AUTHORITY TO REVIEW THAT PORTION OF THE DETERMINATION MADE
BY THE SECRETARY OF THE NAVY, UNDER SECTION 3(B)(3) OF THE ORDER, WHICH
IN EFFECT FOUND THAT THE UNIT SOUGHT BY AFTE "HAS AS A PRIMARY FUNCTION
INTELLIGENCE, INVESTIGATIVE, OR SECURITY WORK."
COUNCIL ACTION (JANUARY 19, 1972). THE COUNCIL HELD THAT THE
ASSISTANT SECRETARY IS WITHOUT AUTHORITY TO REVIEW A DETERMINATION MADE
BY AN AGENCY HEAD UNDER SECTION 3(B)(3) OF THE ORDER. HOWEVER, THE
COUNCIL ALSO HELD THAT, BEFORE HONORING SUCH A DETERMINATION, THE
ASSISTANT SECRETARY MUST FIRST OBTAIN A CLEAR AND EXPLICIT STATEMENT
THAT THE AGENCY HEAD HAD ASSURED HIMSELF OF THE FACTS CONCERNING A
PRIMARY FUNCTION RELATED TO NATIONAL SECURITY AND HAD PERSONALLY DECIDED
ON THE 3(B)(3) EXCLUSION. AS THE RECORD IN THIS CASE IS UNCLEAR AS TO
WHETHER THE SECRETARY OF THE NAVY HAD ASSURED HIMSELF OF THE FACTS AND
MADE THE NECESSARY PERSONAL DETERMINATION, THE CASE WAS REMANDED TO THE
ASSISTANT SECRETARY TO OBTAIN THE REQUIRED STATEMENT AND TO TAKE FURTHER
APPROPRIATE ACTION.
ON AUGUST 26, 1970, THE UNION AFTE) FILED A REPRESENTATION PETITION
WITH THE ASSISTANT SECRETARY, SEEKING A UNIT OF APPROXIMATELY 22
NON-SUPERVISORY TECHNICAL EMPLOYEES AT THE ACTIVITY. ON NOVEMBER 19,
1970, NAVY'S OFFICE OF CIVILIAN MANPOWER MANAGEMENT ADVISED THE AREA
OFFICE OF THE ASSISTANT SECRETARY, AS FOLLOWS:
THIS LETTER CERTIFIES THAT IT IS THE DETERMINATION OF THE SECRETARY
OF THE NAVY THAT ALL BUT
FOUR OF THE EMPLOYEES SOUGHT BY THE PETITIONER OCCUPY POSITIONS
INVOLVING DUTIES RELATED TO
CRYPTOGRAPHIC OPERATIONS THAT THE SECRETARY OF THE NAVY HAS
DETERMINED SHOULD BE EXCLUDED FROM
COVERAGE UNDER THE EXECUTIVE ORDER 11491 FOR REASONS OF NATIONAL
SECURITY PURSUANT TO SECTION
3B(3) OF THAT ORDER . . . .
SECTION 3(B)(3) OF THE ORDER, REFERRED TO BY NAVY, PROVIDES THAT THE
ORDER (EXCEPT SECTION 22) DOES NOT APPLY TO "ANY OTHER AGENCY, OR
OFFICE, BUREAU, OR ENTITY WITHIN AN AGENCY, WHICH HAS AS A PRIMARY
FUNCTION INTELLIGENCE, INVESTIGATIVE, OR SECURITY WORK, WHEN THE HEAD OF
THE AGENCY DETERMINES, IN HIS SOLE JUDGMENT, THAT THE ORDER CANNOT BE
APPLIED IN A MANNER CONSISTENT WITH NATIONAL SECURITY REQUIREMENTS AND
CONSIDERATIONS."
ON NOVEMBER 24, 1970, THE REGIONAL ADMINISTRATOR OF THE ASSISTANT
SECRETARY DECIDED THAT FURTHER PROCEEDINGS WERE NOT WARRANTED DUE TO
THIS DETERMINATION BY THE AGENCY HEAD AND, IN EFFECT, DISMISSED THE
POSITION. UPON APPEAL BY THE UNION, THE ASSISTANT SECRETARY, ON MARCH
18, 1971, AFFIRMED THE REGIONAL ADMINISTRATOR'S ACTION BECAUSE: SECTION
3(B)(3) OF THE ORDER "CLEARLY STATES THAT THE HEAD OF AN AGENCY, IN HIS
SOLE JUDGMENT, MAY EXCLUDE CERTAIN SEGMENTS OF HIS ORGANIZATION FROM THE
COVERAGE OF THE ORDER"; SUCH AN AGENCY HEAD DETERMINATION FALLS OUTSIDE
THE REVIEW AUTHORITY OF THE ASSISTANT SECRETARY UNDER SECTION 6 OF THE
ORDER; AND, THEREFORE, AN INVESTIGATION INTO THE MERITS OF THE
DETERMINATION BY THE SECRETARY OF THE NAVY "DOES NOT APPEAR TO BE
APPROPRIATE."
AFTE PETITIONED THE COUNCIL FOR REVIEW OF THE ASSISTANT SECRETARY'S
DECISION. ON APRIL 29, 1971, THE COUNCIL ACCEPTED THE PETITION FOR
REVIEW OF THE FOLLOWING MAJOR POLICY ISSUE:
WHETHER THE ASSISTANT SECRETARY HAS AUTHORITY TO REVIEW THAT PORTION
OF THE DETERMINATION BY
THE SECRETARY OF THE NAVY UNDER SECTION 3(B)(3) OF THE ORDER WHICH
FOUND THAT THE 'AGENCY, OR
OFFICE, BUREAU OR ENTITY (INVOLVED) . . . HAS AS A PRIMARY FUNCTION
INTELLIGENCE,
INVESTIGATIVE, OR SECURITY WORK.'
BRIEFS WERE TIMELY FILED BY BOTH THE PARTIES. /1/
THE ISSUE BEFORE THE COUNCIL IS WHETHER THE ASSISTANT SECRETARY HAS
AUTHORITY TO REVIEW THAT PART OF AN AGENCY HEAD'S DETERMINATION UNDER
SECTION 3(B)(3) OF THE ORDER, WHICH FINDS THAT AN AGENCY ELEMENT "HAS AS
A PRIMARY FUNCTION INTELLIGENCE, INVESTIGATIVE, OR SECURITY WORK."
THE COUNCIL CONSIDERED A RELATED ISSUE PERTAINING TO INTERNAL AGENCY
SECURITY MATTERS WHICH AROSE UNDER SECTION 3(B)(4) OF THE ORDER IN THE
NASA CASE, /2/ AND DECIDED THAT THE ASSISTANT SECRETARY HAD AUTHORITY TO
DETERMINE IF THE AGENCY HEAD'S FINDINGS OF FACT AS TO A "PRIMARY
FUNCTION" OF THE UNIT WERE "ARBITRARY AND CAPRICIOUS." THE QUESTION AT
THE OUTSET, THEREFORE, IS WHETHER, AS CLAIMED BY AFTE, THE NASA DECISION
"GOVERNS" THE PRESENT CASE, OR WHETHER, AS CONTENDED BY NAVY, SUCH
DECISION IS WITHOUT CONTROLLING SIGNIFICANCE, BECAUSE OF MATERIAL
DIFFERENCES BETWEEN SECTION 3(B)(3) AND SECTION 3(B)(4) OF THE ORDER.
SECTION 3(B) OF THE ORDER PROVIDES IN PERTINENT PART AS FOLLOWS:
SEC. 3. APPLICATION . . . .
(B) THIS ORDER (EXCEPT SECTION 22) DOES NOT APPLY TO--
(1) THE FEDERAL BUREAU OF INVESTIGATION;
(2) THE CENTRAL INTELLIGENCE AGENCY;
(3) ANY OTHER AGENCY, OR OFFICE, BUREAU, OR ENTITY WITHIN AN AGENCY,
WHICH HAS AS A PRIMARY
FUNCTION INTELLIGENCE, INVESTIGATIVE, OR SECURITY WORK, WHEN THE HEAD
OF THE AGENCY
DETERMINES, IN HIS SOLE JUDGMENT, THAT THE ORDER CANNOT BE APPLIED IN
A MANNER CONSISTENT WITH
NATIONAL SECURITY REQUIREMENTS AND CONSIDERATIONS; OR
(4) ANY OFFICE, BUREAU OR ENTITY WITHIN AN AGENCY WHICH HAS AS A
PRIMARY FUNCTION
INVESTIGATION OR AUDIT OF THE CONDUCT OR WORK OF OFFICIALS OR
EMPLOYEES OF THE AGENCY FOR THE
PURPOSE OF ENSURING HONESTY AND INTEGRITY IN THE DISCHARGE OF THEIR
OFFICIAL DUTIES, WHEN THE
HEAD OF THE AGENCY DETERMINES, IN HIS SOLE JUDGMENT, THAT THE ORDER
CANNOT BE APPLIED IN A
MANNER CONSISTENT WITH THE INTERNAL SECURITY OF THE AGENCY . . . .
THE DISPUTE IN THE NASA CASE INVOLVED AN AUDIT DIVISION UNIT WHICH
THE AGENCY HEAD DETERMINED TO EXCLUDE FROM THE ORDER UNDER SECTION
3(B)(4). THE ASSISTANT SECRETARY DECIDED THAT THE AGENCY HEAD'S
DETERMINATION WAS REVIEWABLE, AND THE COUNCIL ACCEPTED THE UNION'S
APPEAL ON THE QUESTION WHETHER THE NASA ADMINISTRATOR'S FINDINGS AS TO A
"PRIMARY FUNCTION" OF THE UNIT WERE SUBJECT TO REVIEW UNDER 3(B)(4).
IN ITS DECISION, THE COUNCIL FOUND THAT NEITHER THE LANGUAGE, NOR THE
HISTORY, OF 3(B)(4) PROVIDED ANY SPECIFIC LIGHT ON THIS QUESTION. WITH
PARTICULAR REFERENCE TO THE HISTORY OF THAT SECTION, THE COUNCIL STATED:
. . . OFFICES, BUREAUS OR ENTITIES ENGAGED IN INTERNAL SECURITY
FUNCTIONS HAD BEEN COVERED
WITHOUT QUALIFICATION UNDER THE PROVISIONS OF E.O. 10988 WHICH
PRECEDED E.O. 11491. THE
REPORT ACCOMPANYING E.O. 11491 DOES NOT DETAIL OR CLARIFY EITHER THE
REASONS, CRITERIA OR
METHODS FOR EXCLUDING SUCH GROUPS UNDER SECTION 3(B)(4) OF THE ORDER
. . . NOR WAS THIS
PERMISSIVE EXEMPTION ADVERTED TO IN ANY PRIOR REPORT OR ISSUANCE
INDICATIVE OF THE INTENT OF
THAT SECTION.
THE COUNCIL THEN CONSIDERED THE PURPOSES AND PROCEDURES OF THE ORDER
AND CONCLUDED "THAT THIRD-PARTY REVIEW WAS INTENDED UNDER SECTION
3(B)(4), AT LEAST TO PREVENT ARBITRARY OR CAPRICIOUS FINDINGS BY AN
AGENCY HEAD AS TO THE INTERNAL SECURITY FUNCTIONS OF THE GROUP
CONCERNED." THE COUNCIL ALSO OBSERVED THAT SUCH REVIEW NEED NOT ENDANGER
THE AGENCY'S INTERNAL SECURITY, BECAUSE OF PROCEDURES AVAILABLE TO THE
ASSISTANT SECRETARY TO PREVENT DISCLOSURE OF THIS TYPE OF INFORMATION TO
UNAUTHORIZED PERSONS.
TURNING NOW TO THE SITUATION IN THE PRESENT CASE, THE LANGUAGE OF
SECTION 3(B)(3) IS ANALOGOUS TO THAT IN 3(B)(4) IN A NUMBER OF RESPECTS,
INCLUDING CERTAIN PARALLEL PHRASING AND SENTENCE STRUCTURE. HOWEVER,
FOR THE REASONS DETAILED BELOW, MAJOR DIFFERENCES PREVAIL IN THE CONTEXT
OF 3(B)(3) AND IN ITS HISTORY, IMPORT, AND LEGAL FRAMEWORK, WHICH
ESTABLISH THAT, UPON A CLEAR SHOWING OF AN AGENCY HEAD'S DETERMINATION
MADE UNDER 3(B)(3), THE ASSISTANT SECRETARY IS WITHOUT FURTHER AUTHORITY
TO REVIEW THE EXCLUSION OF AN ORGANIZATIONAL ELEMENT FOR NATIONAL
SECURITY REASONS.
1. THE LANGUAGE OF 3(B)(3), UNLIKE 3(B)(4), DIRECTLY LINKS THE
EXCLUSION OF AN ELEMENT FOR NATIONAL SECURITY REASONS WITH THE BLANKET
EXCLUSION PROVIDES THAT THE ORDER DOES NOT APPLY TO "(1) THE FEDERAL
BUREAU OF INVESTIGATION; (2) THE CENTRAL INTELLIGENCE AGENCY; (OR) (3)
ANY OTHER AGENCY, OR OFFICE, BUREAU, OR ENTITY WITHIN AN AGENCY, WHICH
HAS AS A PRIMARY FUNCTION INTELLIGENCE, INVESTIGATIVE, OR SECURITY WORK,
WHEN THE HEAD OF THE AGENCY DETERMINES, IN HIS SOLE JUDGMENT, THAT THE
ORDER CANNOT BE APPLIED IN A MANNER CONSISTENT WITH NATIONAL SECURITY
REQUIREMENTS AND CONSIDERATIONS".
THE ABOVE UNDERSCORED WORDS DO NOT APPEAR IN 3(B)(4). THEIR USAGE
INDICATES NOT ONLY A DIFFERENT ORDER OF MAGNITUDE OF 3(B)(3), BUT ALSO A
DIFFERENT SCOPE OF REVIEW.
2. UNLIKE THE PROVISIONS OF 3(B)(4) WHICH APPEAR FOR THE FIRST TIME
IN E.O. 11491, SECTION 3(B)(3) WAS BASED ON ALMOST IDENTICAL PROVISIONS
IN SECTION 16 OR E.O. 10988 WHICH PRECEDED E.O. 11491, AND THE
"LEGISLATIVE HISTORY" OF SECTION 3(B)(3) IS SPECIFIC AND COMPELLING ON
THE INTENT OF THIS SECTION OF THE ORDER.
SECTION 16 OF E.O. 10988 STATED IN RELEVANT PART AS FOLLOWS:
THIS ORDER . . . SHALL NOT APPLY TO THE FEDERAL BUREAU OF
INVESTIGATION, THE CENTRAL
INTELLIGENCE AGENCY, OR ANY OTHER AGENCY, OR TO ANY OFFICE, BUREAU OR
ENTITY WITHIN AN AGENCY,
PRIMARILY PERFORMING INTELLIGENCE, INVESTIGATIVE, OR SECURITY
FUNCTIONS IF THE HEAD OF THE
AGENCY DETERMINES THAT THE PROVISIONS OF THIS ORDER CANNOT BE APPLIED
IN A MANNER CONSISTENT
WITH NATIONAL SECURITY REQUIREMENTS AND CONSIDERATIONS . . . .
QUESTIONS AROSE UNDER SECTION 16 AS TO WHETHER THE DETERMINATION BY
AN AGENCY HEAD WAS SUBJECT TO ANY TYPE OF REVIEW UNDER E.O. 10988. BOTH
THE DEPARTMENT OF LABOR AND THE CIVIL SERVICE COMMISSION, IN THEIR
RESPECTIVE ADVISORY CAPACITIES, CONSISTENTLY DECLARED THAT SUCH
DETERMINATIONS WERE NOT REVIEWABLE UNDER THAT ORDER. FOR INSTANCE, IN A
CASE WHERE A UNION REQUESTED THE NOMINATION OF AN ARBITRATOR TO REVIEW
THE DETERMINATION BY AN AGENCY HEAD THAT CERTAIN EMPLOYEES WERE NOT
COVERED FOR NATIONAL SECURITY REASONS, LABOR REFUSED THE REQUEST,
SAYING:
"SECTION 16 DETERMINATIONS ARE THE RESPONSIBILITY OF THE HEAD OF EACH
AGENCY OR DEPARTMENT IN THE PERFORMANCE OF HIS STATUTORY OBLIGATIONS AS
AGENCY HEAD AND NOT SUBJECT TO REVIEW UNDER THIS ORDER." /3/
LIKEWISE, CSC IN A LETTER OF FEBRUARY 6, 1969, TO THE DEPARTMENT OF
JUSTICE, REGARDING THE MEANING OF THE PHRASE "NATIONAL SECURITY
REQUIREMENTS AND CONSIDERATIONS" IN SECTION 16, STATED:
THE DETERMINATION OF EXEMPTIONS FROM THE COVERAGE OF THE ORDER UNDER
SECTION 16 IS
SPECIFICALLY DELEGATED AS A DETERMINATION TO BE MADE BY THE HEAD OF
THE AGENCY CONCERNED. THE
SECRETARY OF LABOR HAS CONFIRMED THIS BY REFUSING TO CONSIDER
DISPUTED EXEMPTIONS UNDER THE
PROVISIONS OF SECTION 11. THE U.S. DISTRICT COURT FOR THE DISTRICT
OF COLUMBIA AND THE
U.S. COURT OF APPEALS (NAIRE V. DILLON, 356 F.2D 811 (D.C. CIR.
1966)) HAVE REFUSED
JURISDICTION ON GROUNDS THAT SUCH DETERMINATIONS ARE ADMINISTRATIVE
MATTERS NOT SUBJECT TO THE
REVIEW OF THE COURTS. THUS THE PROGRAM PROVIDES FOR NO THIRD PARTY
REVIEW OF THESE
DETERMINATIONS.
INDEED, IN A SUBSEQUENT LETTER OF OCTOBER 16, 1969, ADDRESSED TO THE
METAL TRADES DEPARTMENT, CSC SPECIFICALLY REFUSED TO INVESTIGATE OR TAKE
OTHER ACTION "RELATING TO THE AMENDMENT OF DEPARTMENT OF THE NAVY
REGULATIONS UNDER SECTION 16 OF EXECUTIVE ORDER 10988 WHICH HAS THE
EFFECT OF REMOVING CERTAIN CRYPTOGRAPHIC PERSONNEL FROM ESTABLISHED
UNITS OF EXCLUSIVE RECOGNITION." CSC SAID IN THIS REGARD: "THE
EXECUTIVE ORDER DOES NOT QUALIFY OR LIMIT THE AUTHORITY OF AN AGENCY
HEAD IN THE APPLICATION OF THIS PROVISION. IT INTENDED THAT THE
DECISION OF THE AGENCY HEAD IN THIS AREA OF NATIONAL SECURITY
REQUIREMENTS AND CONSIDERATIONS SHOULD BE FINAL AND UNREVIEWABLE . . . .
"
SECTION 3(B)(3) OF E.O. 11491 WAS DRAFTED WITH ONLY ONE PRINCIPAL
CHANGE IN THE RELATED LANGUAGE OF SECTION 16 OF E.O. 10988, NAMELY, THE
INSERTION OF THE PHRASE "IN HIS SOLE JUDGMENT" AFTER THE REFERENCE TO
THE AGENCY HEAD DETERMINATION. WHILE THE REPORT ACCOMPANYING E.O. 11491
IS SILENT AS TO THE INTENT OF THIS ADDITION, THE PHRASE MANIFESTLY
REFLECTS A REINFORCEMENT, NOT A CHANGE, OF THE PAST INTERPRETATION AND
PRACTICE UNDER SECTION 16. THIS CONCLUSION IS SUPPORTED BY THE
COMPARATIVE ANALYSIS OF 10988 AND 11491 WHICH ISSUED CONTEMPORANEOUSLY
WITH THE REPORT ACCOMPANYING E.O. 11491 AND WHICH EXPRESSLY STATES THAT
"NO APPEAL" WAS SANCTIONED UNDER SECTION 16 OF 10988; THAT SECTION
3(B)(1), (2) AND (3) OF 11491 IS THE "SAME" AS SECTION 16 OF 10988; AND
THAT THE "CHANGES" IN SECTION 16 MADE BY 3(B)(1), (2) AND (3) WERE
"NONE." /4/
3. NATIONAL SECURITY MATTERS ARE OBVIOUSLY OF A DIFFERENT NATURE,
AND THEIR IMPORTANCE OF A DIFFERENT SIGNIFICANCE, THAN THE INTERNAL
SECURITY OF A PARTICULAR AGENCY.
FOR EXAMPLE, MORE PROFOUND DANGERS WOULD DERIVE FROM LEAKS OF
CLASSIFIED DEFENSE INFORMATION THAN OF MERELY PRIVILEGED INFORMATION
WITHIN AN AGENCY. SIMILARLY, ERRORS IN JUDGMENT BY A THIRD-PARTY IN
FINDING A LACK OF A PRIMARY FUNCTION RELATED TO NATIONAL SECURITY
MATTERS WOULD HAVE MORE SERIOUS POTENTIAL CONSEQUENCES THAN A LIKE ERROR
CONCERNING INTERNAL AGENCY SECURITY MATTERS. FURTHER, A MORE COMPLEX
LEGAL FRAMEWORK SURROUNDS THE NATIONAL SECURITY AREA; /5/ AND A MORE
SPECIALIZED CAPABILITY IS REQUIRED TO ASSESS THE BOUNDARIES OF
"INTELLIGENCE, INVESTIGATIVE, OR SECURITY WORK" UNDER 3(B)(3), THAN
DECIDING WHETHER AN ELEMENT'S PRIMARY FUNCTION INVOLVES "INVESTIGATION
OR AUDIT OF THE CONDUCT OR WORK OF OFFICIALS OR EMPLOYEES OF THE AGENCY
FOR THE PURPOSE OF ENSURING HONESTY AND INTEGRITY IN THE DISCHARGE OF
THEIR OFFICIAL DUTIES," UNDER 3(B)(4).
4. FINALLY, THE CLASSIFIED NATURE OF THE MATTERS INVOLVED UNDER
3(B)(3), UNLIKE THE PRIVILEGED MATERIALS UNDER 3(B)(4), WOULD RENDER IT
DIFFICULT, IF NOT IMPOSSIBLE, TO CONDUCT REVIEW PROCEEDINGS. ACCESS TO
CLASSIFIED INFORMATION IS UNIFORMLY RESTRICTED IN LEGAL DIRECTIVES TO A
"NEED TO KNOW" IN THE INTEREST OF NATIONAL SECURITY. /6/ REVIEW
PROCEEDINGS UNDER 3(B)(3) WOULD NOT FALL WITHIN THIS CATEGORY AND NO
INTENT WAS REFLECTED IN E.O. 11491 TO SUPERSEDE SUCH REQUIREMENTS.
MOREOVER, HEAVY PENALTIES ARE SANCTIONED FOR UNAUTHORIZED DISCLOSURE AND
RECEIPT OF SUCH CLASSIFIED INFORMATION. /7/ AND, WHILE THE COURTS MAY
HAVE AUTHORITY TO DETERMINE IF A SECURITY CLASSIFICATION WAS ARBITRARY
AND CAPRICIOUS (EPSTEIN V. RESOR, 421 F.2D 930, 933 (9TH CIR. 1970),
CERT. DEN. 398 U.S. 965 (1970)), SUCH AUTHORITY IS NOT GRANTED TO THE
ASSISTANT SECRETARY OR THE COUNCIL, WITHIN THE EXECUTIVE BRANCH.
FOR THE FOREGOING REASONS, WE ARE OF THE OPINION THAT THE NASA
DECISION RELATING TO 3(B)(4) IS NOT CONTROLLING IN THE INSTANT CASE, AND
THAT THE ASSISTANT SECRETARY IS WITHOUT AUTHORITY TO REVIEW A
DETERMINATION MADE BY AN AGENCY HEAD UNDER SECTION 3(B)(3) OF THE ORDER.
HOWEVER, OUR CONCLUSION IN THE ABOVE REGARD PRESUMES THAT THE
DETERMINATION TO EXCLUDE THE AGENCY ELEMENT INVOLVED WAS ACTUALLY MADE
BY THE HEAD OF THE AGENCY AS REQUIRED IN SECTION 3(B)(3). BECAUSE OF
THE SIGNIFICANT CONSEQUENCES WHICH DERIVE FROM SUCH AN EXCLUSION, THE
ORDER INTENDED, IN OUR OPINION, THAT THE AGENCY HEAD ASSURE HIMSELF OF
THE FACTS CONCERNING A PRIMARY FUNCTION RELATED TO NATIONAL SECURITY AND
PERSONALLY DECIDE ON THE 3(B)(3) EXCLUSION. /8/ THEREFORE, THE
ASSISTANT SECRETARY, IN ANY CASE CHALLENGING A 3(B)(3) DETERMINATION,
MUST FIRST OBTAIN A CLEAR AND EXPLICIT STATEMENT AS TO THE AGENCY HEAD'S
ASSURANCE OF THE FACTS AND PERSONAL DECISION TO EXCLUDE THE ELEMENT
INVOLVED, BEFORE HONORING ANY SUCH DETERMINATION.
THE RECORD IS UNCLEAR IN THE PRESENT CASE AS TO WHETHER THE SECRETARY
OF THE NAVY HAD ASSURED HIMSELF OF THE FACTS AND MADE THE NECESSARY
PERSONAL DETERMINATION TO EXCLUDE THE EMPLOYEE GROUP HERE SOUGHT BY THE
UNION. ACCORDINGLY, PURSUANT TO SECTION 2411.20 OF THE COUNCIL'S RULES
OF PROCEDURE, THE CASE IS REMANDED TO THE ASSISTANT SECRETARY TO OBTAIN
A CLEAR AND EXPLICIT STATEMENT FROM THE SECRETARY OF THE NAVY AND THEN
TO TAKE FURTHER APPROPRIATE ACTION CONSISTENT WITH THIS DECISION OF THE
COUNCIL.
BY THE COUNCIL.
ISSUED: JANUARY 19, 1972
/1/ THE UNION FILED A LETTER IN THE NATURE OF A BRIEF. NAVY FILED
TWO BRIEFS, ONE CLASSIFIED AS "CONFIDENTIAL" AND THE OTHER UNCLASSIFIED.
THE UNCLASSIFIED BRIEF ALONE WAS SERVED ON THE UNION AND THE ASSISTANT
SECRETARY, AND THE UNION OPPOSED THE COUNCIL'S ACCEPTANCE OF THE
CLASSIFIED BRIEF UNLESS SUCH BRIEF WAS ALSO "IMMEDIATELY AND
UNCONDITIONALLY MADE AVAILABLE" TO THE UNION. THE COUNCIL HAS DEEMED IT
NECESSARY IN THIS CASE TO CONSIDER ONLY THE UNCLASSIFIED BRIEF AND HAS
RETURNED THE CLASSIFIED BRIEF TO NAVY WITHOUT EXAMINATION OF ITS CONTER
/2/ AUDIT DIVISION (CODE DU) NATIONAL AERONAUTICS AND SPACE AGENCY,
ASSISTANT SECRETARY CASE NO. 46-1848(RO), FLRC NO. 70A-7, DATED APRIL
29, 1971.
/3/ CSC BULLETIN NO. 711-6, DATED MAY 14, 1964, P. 4.
/4/ LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1969) AT P.
48.
/5/ SEE, E.G., 5 U.S.C. 552(B)(1); 18 U.S.C. 793(D), 798; 50 U.S.C.
402, ET SEQ; E.O. 10501 AS AMENDED.
/6/ SEE, E.G., SECTION 7 OF E.O. 10501, AS AMENDED.
/7/ SEE FOOTNOTE 5, SUPRA.
/8/ FOR PURPOSES OF SECTION 3(B)(3), THE AUTHORITY OF THE "AGENCY
HEAD" IN THE DEPARTMENT OF DEFENSE MAY PROPERLY BE DELEGATED TO THE
SECRETARY OF THE MILITARY DEPARTMENT, AS PROVIDED IN PARA. III.B.1 OF
DOD DIRECTIVE 1426.1. CF. IAM LOCAL LODGE 2424 AND ABERDEEN PROVING
GROUND, ABERDEEN, MARYLAND, FLRC NO. 70A-9, DATED MARCH 9, 1971.
1 FLRC 141; FLRC NO. 71A-35; DECEMBER 15, 1971.
MR. FRED E. HUNTLEY, PRESIDENT
CALIBRATION LABORATORY ASSOCIATION
972 GRIZZLY PEAK BOULEVARD
BERKELEY, CALIFORNIA 94708
(SYNOPSIS) FLRC NO. 71A-35
DEPARTMENT OF THE NAVY, NAVAL AIR REWORK FACILITY, NAVAL AIR STATION,
ALAMEDA, CALIFORNIA, A/SLMR NO. 61. THE ASSISTANT SECRETARY DISMISSED
THE REPRESENTATION PETITION FILED BY THE CALIBRATION LABORATORY
ASSOCIATION, BECAUSE OF THE INAPPROPRIATENESS OF THE UNIT SOUGHT. THE
UNION APPEALED TO THE COUNCIL, ALLEGING "SIGNIFICANT ERRORS OF FACT" AND
A FAILURE TO TAKE PROPER "COGNIZANCE" OF CERTAIN PUBLISHED AGENCY
DOCUMENTS.
COUNCIL ACTION (DECEMBER 15, 1971). THE COUNCIL FOUND THAT THE
ALLEGATIONS AS TO "ERRORS OF FACT" WERE WITHOUT CONTROLLING
SIGNIFICANCE; AND THAT THE UNION DID NOT PROVIDE THE ASSISTANT
SECRETARY WITH THE SUBJECT DOCUMENTS, OR SEEK TO REOPEN THE RECORD OR TO
OBTAIN RECONSIDERATION BASED ON THESE DOCUMENTS. THEREFORE, THE COUNCIL
HELD THAT THE ASSISTANT SECRETARY'S DECISION DID NOT APPEAR ARBITRARY
AND CAPRICIOUS AND DID NOT PRESENT A MAJOR POLICY ISSUE, AND DENIED
REVIEW UNDER SECTION 2411.12(C) OF THE COUNCIL'S RULES OF PROCEDURE.
DEAR MR. HUNTLEY:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
DECISION OF THE ASSISTANT SECRETARY IN THE ABOVE-CAPTIONED CASE, AND THE
OPPOSITION TO YOUR APPEAL SUBMITTED BY THE NAVY.
YOU CONTEND IN EFFECT THAT THE ASSISTANT SECRETARY'S DECISION IS
ARBITRARY AND CAPRICIOUS AND PRESENTS A MAJOR POLICY ISSUE, BY REASON OF
(1) "SIGNIFICANT ERRORS OF FACT;" AND (2) THE ASSISTANT SECRETARY'S
FAILURE TO TAKE "COGNIZANCE" OF TWO PUBLISHED INSTRUCTIONS BY NAVAL AIR
SYSTEMS COMMAND RELATING TO THE CALIBRATION PROGRAM, WHICH RESULTED IN
HIS IMPROPERLY FINDING THAT THE PROPOSED UNIT IS A PART OF AN INTEGRATED
PRODUCTION PROCESS.
AS TO (1), THE ALLEGED FACTUAL ERRORS CONCERN SUCH MATTERS AS
ASSERTED DISPARITIES IN FIGURES, INEXACTNESS OR LACK OF PRECISION IN
ISOLATED PHRASES, AND MISLAID RELIANCE ON EVIDENCE, IN THE DECISION.
HOWEVER, THESE ALLEGED ERRORS ARE MINOR IN NATURE OR CLEARLY LACKING IN
MERIT. ALSO, IN MOST INSTANCES, THEY ARE UNSUPPORTED BY ANY REFERENCE
EITHER TO EVIDENCE ACTUALLY INTRODUCED OR SOUGHT TO BE INTRODUCED AT THE
HEARING. ACCORDINGLY, THE ALLEGATIONS AS TO "ERRORS OF FACT" ARE
WITHOUT CONTROLLING SIGNIFICANCE IN THIS CASE.
WITH RESPECT TO (2), ALTHOUGH YOU ASSERT THAT YOUR UNION MADE "SOME
QUOTES" FROM NAVAIRINST 4355.4 IN ITS BRIEF TO THE ASSISTANT SECRETARY
AND URGED THE ASSISTANT SECRETARY TO OBTAIN A COPY OF THAT DOCUMENT, THE
UNION DID NOT PROVIDE THE ASSISTANT SECRETARY AT THE HEARING OR IN ITS
BRIEF WITH COPIES OF EITHER OF THE DOCUMENTS REFERRED TO, NOR DID THE
UNION SEEK TO REOPEN THE RECORD, OR TO OBTAIN RECONSIDERATION BY THE
ASSISTANT SECRETARY, BASED ON THESE PUBLICATIONS. THEREFORE, NO BASIS
FOR REVIEW IS ESTABLISHED BY THE ASSISTANT SECRETARY'S ALLEGED FAILURE
TO TAKE "COGNIZANCE" OF THE SUBJECT DOCUMENTS.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS AND DOES NOT PRESENT A MAJOR POLICY ISSUE, YOUR PETITION
FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED IN SECTION
2411.12(C) OF THE COUNCIL'S RULES OF PROCEDURE. ACCORDINGLY, THE
COUNCIL HAS DIRECTED THAT REVIEW OF YOUR APPEAL BE DENIED.
BY DIRECTION OF THE COUNCIL.
CC: W. J. USERY, JR.
DEPT. OF LABOR
J. AMANN
NAVY
1 FLRC 138; FLRC NO. 71A-34; DECEMBER 15, 1971.
MR. JOHN E. DOSS, JR.
PRESIDENT, FEDERAL EMPLOYEES
COUNCIL NO. 270
P.O. BOX 270
HACKETTSTOWN, NEW JERSEY 07840
(SYNOPSIS) FLRC NO. 71A-34
PICATINNY ARSENAL, DEPARTMENT OF THE ARMY, DOVER, NEW JERSEY,
ASSISTANT SECRETARY CASE NO. 31-1818 E.O. THE ASSISTANT SECRETARY
DISMISSED THE SECTION 19 A)(6) COMPLAINT BY FEDERAL EMPLOYEES COUNCIL
NO. 270, BECAUSE, FOR THE PAST SEVEN OR MORE YEARS, THE WORK ASSIGNMENT
INVOLVED (POLICE VEHICLE MAINTENANCE BY GUARDS WHEN REGULAR EMPLOYEES
WHO PERFORMED SUCH WORK WERE OFF DUTY) WAS AN ESTABLISHED CONDITION OF
GUARDS' EMPLOYMENT; AND THE ACTIVITY WAS NOT OBLIGATED TO BARGAIN
DURING THE TERM OF AN AGREEMENT ABOUT CONTINUING SUCH ESTABLISHED
PRACTICE. THE UNION APPEALED, CONTENDING A MAJOR POLICY ISSUE WAS
PRESENTED BY THE ACTIVITY'S DETERMINATION TO INTERCHANGE WORK, WITHOUT
NEGOTIATIONS, DURING A CURRENT AGREEMENT.
COUNCIL ACTION (DECEMBER 15, 1971). THE COUNCIL FOUND THAT THE
APPEAL WAS UNSUPPORTED BY THE ACTUAL CIRCUMSTANCES, SINCE IT WAS
UNCONTROVERTED THAT THE WORK ASSIGNMENT WAS AN ESTABLISHED PRACTICE AND
NOT A DETERMINATION MADE DURING THE TERM OF THE CURRENT AGREEMENT. NO
MAJOR POLICY ISSUE WAS THEREFORE PRESENTED AND THE COUNCIL DENIED REVIEW
UNDER SECTION 2411.12(C) OF THE COUNCIL'S RULES.
DEAR MR. DOSS:
THE COUNCIL HAS CONSIDERED YOUR PETITION FOR REVIEW OF THE DECISION
OF THE ASSISTANT SECRETARY IN THE ABOVE-CAPTIONED CASE.
THE ASSISTANT SECRETARY UPHELD THE REGIONAL ADMINISTRATOR'S DISMISSAL
OF YOUR COMPLAINT OF A SECTION 19(A)(6) VIOLATION, HOLDING THAT, FOR THE
PAST SEVEN OR MORE YEARS, THE WORK ASSIGNMENT INVOLVED (I.E., THE
ASSIGNMENT TO GUARDS OF THE WORK OF CHANGING TIRES AND PUTTING CHAINS ON
TIRES ON POLICE VEHICLES, WHEN EMPLOYEES WHO NORMALLY PERFORM SUCH WORK
ARE OFF DUTY) WAS AN ESTABLISHED CONDITION OF EMPLOYMENT OF THE GUARDS;
AND THAT THE ACTIVITY WAS UNDER NO OBLIGATION TO BARGAIN DURING THE TERM
OF THE EXISTING GUARD AGREEMENT ABOUT THE CONTINUANCE OF SUCH AN
ESTABLISHED PRACTICE.
IN YOUR APPEAL, YOU CONTEND THAT THE ASSISTANT SECRETARY'S DECISION
PRESENTS A MAJOR POLICY ISSUE "ON THE BROADER CONNOTATIONS, IMPLIED OR
REAL, CONCERNING (UNIONS) POSSESSING EXCLUSIVE BARGAINING RIGHTS AND
PREROGATIVES" UNDER NEGOTIATED AGREEMENTS. IN SUPPORT OF THIS
CONTENTION, YOU ARGUE THAT, WHERE AN EMPLOYER "DETERMINES TO INTERCHANGE
ASSIGNMENTS OR PARALLEL ASSIGNMENTS ON A PERMANENT OR CONTINUING BASIS
AND NOT IN EMERGENCY SITUATIONS THE EMPLOYER SHOULD NOT USE FIAT BUT USE
NEGOTIATING PROCEDURES WITH THE UNIONS HAVING CURRENT AGREEMENTS."
HOWEVER, YOUR APPEAL DOES NOT CHALLENGE OR EVEN ADVERT TO THE
ASSISTANT SECRETARY'S FINDING IN THIS CASE THAT THE PRACTICE OF
ASSIGNING THE TASKS IN QUESTION TO GUARDS WHEN THE EMPLOYEES WHO
NORMALLY PERFORM SUCH FUNCTIONS ARE OFF DUTY HAS BEEN AN ESTABLISHED
PRACTICE OF SEVEN OR MORE YEARS DURATION. SUCH ASSIGNMENT WAS NOT A
"DETERMINATION" BY THE ACTIVITY DURING THE TERM OF ANY CURRENT
AGREEMENT. THEREFORE, YOUR APPEAL APPEARS TO BE UNSUPPORTED BY THE
ACTUAL CIRCUMSTANCES IN THIS CASE, AND NO MAJOR POLICY ISSUE IS
PRESENTED BY THE DECISION OF THE ASSISTANT SECRETARY.
AS YOUR PETITION FOR REVIEW FAILS TO MEET THE REQUIREMENTS FOR REVIEW
AS PROVIDED UNDER SECTION 2411.12(C) OF THE COUNCIL'S RULES OF
PROCEDURE, THE COUNCIL HAS DIRECTED THAT REVIEW OF YOUR APPEAL BE
DENIED.
BY DIRECTION OF THE COUNCIL.
CC: W. J. USERY, JR.
DEPT. OF LABOR
D. A. DRESSER
ARMY
1 FLRC 135; FLRC NO. 71A-23; AUGUST 27, 1971.
MR. RICHARD L. CLARK, PRESIDENT
LOCAL 142, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES
4633 HANNAFORD DRIVE
TOLEDO, OHIO 43623
(SYNOPSIS) FLRC NO. 71A-23
FIRST U.S. ARMY, 83RD ARMY RESERVE COMMAND (ARCOM), U.S. ARMY SUPPORT
FACILITY (FORT HAYES), COLUMBUS, OHIO, A/SLMR NO. 35. ON MAY 10, 1971,
THE ASSISTANT SECRETARY DISMISSED THE REPRESENTATION PETITION FILED BY
NFFE LOCAL 142 IN THIS CASE. ON JUNE 8, 1971, SOME SIX DAYS AFTER THE
LAST DATE FOR FILING AN APPEAL UNDER SECTION 2411.14 OF THE COUNCIL'S
RULES OF PROCEDURE, THE LOCAL PRESIDENT SUBMITTED HIS PETITION FOR
REVIEW, ALLEGING THAT HE PERSONALLY DID NOT LEARN OF THE SUBJECT
DECISION UNTIL THE WEEK OF MAY 23, AND THAT HIS LOCAL HAD NOT RECEIVED A
COPY OF THE DECISION DIRECTLY FROM THE ASSISTANT SECRETARY. HOWEVER,
THE LOCAL PRESIDENT DID NOT ASSERT, NOR DID IT APPEAR, THAT SERVICE OF
THE DECISION WAS NOT PROPERLY MADE BY THE ASSISTANT SECRETARY ON THE
COUNSEL OF RECORD OR ANY OTHER PERSON WHO ENTERED AN APPEARANCE AS
REPRESENTATIVE OF THE LOCAL IN THE PROCEEDING. FURTHER, WHILE THE LOCAL
PRESIDENT HAD KNOWLEDGE OF THE DECISION BEFORE JUNE 2, AND THE NFFE
VICE-PRESIDENT OF THE LOCAL'S REGION HAD RECEIVED A COPY OF THE
DECISION, NO REQUEST WAS MADE TO THE COUNCIL FOR AN EXTENSION OF THE
TIME FOR FILING AN APPEAL AS PROVIDED IN SECTION 2411.14(D) OF THE
COUNCIL'S RULES.
COUNCIL ACTION (AUGUST 27, 1971). SINCE THE UNION'S APPEAL WAS
UNTIMELY FILED, AND APART FROM OTHER CONSIDERATIONS, THE COUNCIL DENIED
THE PETITION FOR REVIEW.
DEAR MR. CLARK:
REFERENCE IS MADE TO YOUR APPEAL TO THE COUNCIL FOR REVIEW OF THE
DECISION OF THE ASSISTANT SECRETARY, ISSUED ON MAY 10, 1971, IN THE
ABOVE-CAPTIONED CASE.
UPON CAREFUL CONSIDERATION, THE COUNCIL HAS DETERMINED THAT YOUR
POSITION WAS UNTIMELY FILED UNDER THE COUNCIL'S RULES OF PROCEDURE AND
CANNOT BE ACCEPTED FOR REVIEW.
SECTION 2411.14(A) OF THE COUNCIL'S RULES PROVIDES THAT AN APPEAL
MUST BE FILED WITHIN 20 DAYS FROM THE DATE OF SERVICE OF THE ASSISTANT
SECRETARY'S DECISION; UNDER SECTION 2411.14(F) THREE ADDITIONAL DAYS
ARE ALLOWED WHEN SERVICE IS BY MAIL; AND UNDER SECTION 2411.14(G) SUCH
APPEAL MUST BE RECEIVED IN THE COUNCIL'S OFFICE BEFORE THE CLOSE OF
BUSINESS OF THE LAST DAY OF THE PRESCRIBED TIME LIMIT. YOUR PETITION,
WHICH WAS DUE ON OR BEFORE JUNE 2, 1971, WAS NOT FILED WITH THE COUNCIL
UNTIL JUNE 8, 1971.
WHILE YOUR PETITION ALLEGES THAT YOU PERSONALLY DID NOT LEARN OF THE
SUBJECT DECISION UNTIL THE WEEK OF MAY 23, 1971, AND THAT YOUR LOCAL HAS
NOT RECEIVED A COPY OF THE DECISION DIRECTLY FROM THE ASSISTANT
SECRETARY, YOU DO NOT ASSERT, NOR DOES IT APPEAR, THAT SERVICE WAS NOT
PROPERLY MADE ON YOUR COUNSEL OF RECORD OR ANY OTHER PERSON WHO HAD
ENTERED AN APPEARANCE AS REPRESENTATIVE OF YOUR LOCAL IN THE PROCEEDING.
FURTHER, WHILE ADMITTEDLY YOU HAD KNOWLEDGE OF THE DECISION BEFORE JUNE
2, AND THE NFFE VICE PRESIDENT OF YOUR REGION HAD RECEIVED A COPY OF THE
DECISION, NO ATTEMPT WHATSOEVER WAS MADE TO SEEK AN EXTENSION OF TIME TO
FILE AN APPEAL AS PROVIDED IN SECTION 2411.14(D) OF THE COUNCIL'S RULES.
ACCORDINGLY, AS YOUR APPEAL WAS UNTIMELY FILED, AND APART FROM OTHER
CONSIDERATIONS, THE COUNCIL HAS DIRECTED THAT YOUR PETITION FOR REVIEW
BE DENIED.
FOR THE COUNCIL.
CC: W. J. USERY, JR.
DEPT. OF LABOR
L. C. ZETTLER
U.S. ARMY
E. M. RICKETSON
AFGE
1 FLRC 132; FLRC NOS. 71A-33, 71A-44 AND 71A-53; DECEMBER 14, 1971.
MR. WILLIAM B. PEER
BREDHOFF, BARR, GOTTESMAN,
COHEN & PEER
1000 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20036
(SYNOPSIS) FLRC NOS. 71A-33, 71A-44 AND 71A-53
FEDERAL AVIATION ADMINISTRATION, ASSISTANT SECRETARY CASE NOS.
22-1990, ETC.; FEDERAL AVIATION ADMINISTRATION, ASSISTANT SECRETARY CASE
NOS. 22-2007, ETC.; FEDERAL AVIATION ADMINISTRATION, ASSISTANT SECRETARY
CASE NOS. 22-2651, 2654(CA). THE ASSISTANT SECRETARY DISMISSED, FOR
LACK OF JURISDICTION UNDER SECTION 19(D) OF E.O. 11491, UNFAIR LABOR
PRACTICE COMPLAINTS BY A NUMBER OF AIR TRAFFIC CONTROLLERS DISCHARGED BY
THE FAA BECAUSE OF THEIR ALLEGED PARTICIPATION IN A STRIKE. THE
INDIVIDUAL COMPLAINANTS APPEALED TO THE COUNCIL, ALLEGING THAT THE
ASSISTANT SECRETARY'S DECISIONS ERRONEOUSLY INTERPRETED AND APPLIED
SECTION 19(D) OF E.O. 11491. THE APPEAL ALSO SOUGHT RETROACTIVE
APPLICATION OF THE AMENDMENTS UNDER E.O. 11616.
COUNCIL ACTION (DECEMBER 14, 1971). THE COUNCIL HELD THAT, BASED ON
THE SPECIFIC LANGUAGE OF E.O. 11491 AND E.O. 11616, THE DECISIONS OF THE
ASSISTANT SECRETARY DO NOT APPEAR ARBITRARY AND CAPRICIOUS, AND DO NOT
PRESENT ANY MAJOR POLICY ISSUE. ACCORDINGLY, THE COUNCIL DENIED REVIEW
UNDER SECTION 2411.12(C) OF THE COUNCIL'S RULES OF PROCEDURE.
DEAR MR. PEER:
THE COUNCIL HAS CONSIDERED YOUR PETITIONS FOR REVIEW OF THE ASSISTANT
SECRETARY'S DECISIONS IN THE ABOVE-CAPTIONED CASES WHICH DISMISSED, FOR
LACK OF JURISDICTION UNDER SECTION 19(D) OF E.O. 11491, UNFAIR LABOR
PRACTICE COMPLAINTS BY A NUMBER OF AIR TRAFFIC CONTROLLERS DISCHARGED BY
THE FEDERAL AVIATION ADMINISTRATION BECAUSE OF THEIR ALLEGED
PARTICIPATION IN A STRIKE.
YOUR REQUEST FOR REVIEW ASSERTS THAT "SUBSTANTIAL POLICY QUESTIONS"
ARE RAISED BY THE ASSISTANT SECRETARY'S DECISIONS. IN SUBSTANCE, YOU
CONTEND THAT: (1) A/SLMR REPORT NO. 25, CITED BY THE ASSISTANT
SECRETARY, IS AN INSUFFICIENT BASIS UPON WHICH TO DISMISS THESE
COMPLAINTS SINCE THAT REPORT PROVIDES NEITHER THE SALIENT FACTS UPON
WHICH IT AROSE NOR THE RATIONALE UNDERLYING THE DECISION; (2) SECTION
19(D) OF E.O. 11491 DEPRIVED THE ASSISTANT SECRETARY OF JURISDICTION
ONLY WHEN THE ALLEGED VIOLATIONS WERE SUBJECT TO A NEGOTIATED GRIEVANCE
OR APPEALS PROCEDURE, WHICH IS ABSENT HERE; (3) THE ASSISTANT
SECRETARY'S INTERPRETATION OF SECTION 19(D) IS INCONSISTENT WITH THE
DESIGN OF E.O. 11491 SINCE IT ALLOWED THE AGENCY AGAINST WHOM AN
INDIVIDUAL EMPLOYEE IS COMPLAINING TO PASS UPON THE VALIDITY OF SUCH
COMPLAINT; (4) THE GRIEVANCE AND APPEAL PROCEDURES OF FAA DO NOT ACCORD
DUE PROCESS AND THE ASSISTANT SECRETARY SHOULD NOT DEFER TO SUCH
PROCEDURES; AND (5) THE DECISIONS ARE CONTRARY TO PRIVATE SECTOR
PRACTICE.
ADDITIONALLY, IN FLRC NO. 71A-53, YOU CONTEND THAT THE RECENT
AMENDMENTS OF SECTION 19(D) MADE BY E.O. 11616 PERMIT THE ASSISTANT
SECRETARY TO PROCESS COMPLAINTS SUCH AS THOSE INVOLVED IN THE INSTANT
CASES. AND YOU "REQUEST THAT THE COUNCIL INTERPRET THE NEW EXECUTIVE
ORDER EXPANSIVELY TO PERMIT PROCESSING OF (THE PETITIONERS') UNFAIR
LABOR PRACTICE COMPLAINTS", SINCE IT "WOULD BE AN ARBITRARY AND
CAPRICIOUS RESULT IF, BECAUSE OF THE TIMING OF THE FILING OF THE UNFAIR
LABOR PRACTICE CASES, PETITIONERS WERE PRECLUDED FROM PROCESSING THEIR
UNFAIR LABOR PRACTICE COMPLAINTS, WHILE OTHERS, NO DIFFERENTLY SITUATED,
WHO FOLLOW THEM WILL HAVE THE ADVANTAGE OF THE NEW SECTION 19(D)."
SECTION 19(D) OF E.O. 11491 PROVIDED THAT:
WHEN THE ISSUE IN A COMPLAINT OF AN ALLEGED VIOLATION OF PARAGRAPH
(A1 ), (2), OR (4) OF THIS
SECTION IS SUBJECT TO AN ESTABLISHED GRIEVANCE OR APPEALS PROCEDURE,
THAT PROCEDURE IS THE
EXCLUSIVE PROCEDURE FOR RESOLVING THE COMPLAINT. ALL OTHER
COMPLAINTS OF ALLEGED VIOLATIONS
OF THIS SECTION INITIATED BY AN EMPLOYEE, AN AGENCY, OR A LABOR
ORGANIZATION, THAT CANNOT BE
RESOLVED BY THE PARTIES, SHALL BE FILED WITH THE ASSISTANT SECRETARY.
THIS PLAIN LANGUAGE OF SECTION 19(D) EXCLUDED FROM THE COMPLAINT
PROCEDURES OF THE ASSISTANT SECRETARY ISSUES WHICH WERE SUBJECT TO
ESTABLISHED GRIEVANCE OR APPEALS PROCEDURES. SINCE IT IS UNCONTROVERTED
THAT THE ISSUES IN THE PETITIONS HERE INVOLVED WERE SUBJECT TO
ESTABLISHED GRIEVANCE OR APPEALS PROCEDURES, HIS DETERMINATION AS TO
LACK OF JURISDICTION UNDER SECTION 19(D) OF E.O. 11491 PRESENTS NO MAJOR
POLICY ISSUE.
AS TO THE QUESTION WHETHER THE AMENDMENTS OF SECTION 19(D) MADE BY
E.O. 11616 MAY BE APPLIED RETROACTIVELY TO THESE CASES, E.O. 11616,
ADOPTED AUGUST 26, 1971, SPECIFICALLY PROVIDES THAT "THE AMENDMENTS MADE
BY THIS ORDER SHALL BECOME EFFECTIVE NINETY DAYS FROM THIS DATE."
THEREFORE, SUCH AMENDMENTS, WHICH BECAME EFFECTIVE ON NOVEMBER 24, 1971,
CLEARLY PROVIDES NO BASIS FOR REVIEW IN THE PRESENT CASES.
ACCORDINGLY, SINCE THE DECISIONS OF THE ASSISTANT SECRETARY DO NOT
APPEAR TO BE ARBITRARY AND CAPRICIOUS, NOR ARE THERE MAJOR POLICY ISSUES
PRESENT, THE COUNCIL HAS DIRECTED, PURSUANT TO SECTION 2411.12(C) OF ITS
RULES, THAT REVIEW OF YOUR APPEALS BE DENIED.
BY DIRECTION OF THE COUNCIL.
CC: W. J. USERY, JR.
DEPT. OF LABOR
C. J. PETERS
FAA
1 FLRC 129; FLRC NO. 71A-41; DECEMBER 1, 1971.
MR. NATHAN T. WOLKOMIR, PRESIDENT
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
1737 H STREET, N.W.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 71A-41
NFFE LOCAL 453 AND NATIONAL CLIMATIC CENTER, U.S. DEPARTMENT OF
COMMERCE, ASHEVILLE, N.C. THE NEGOTIABILITY DISPUTE CONCERNED THE
UNION'S PROPOSAL THAT A LOCAL UNION MEMBER BE APPOINTED TO MERIT
PROMOTION, AWARDS, AND PERFORMANCE RATING COMMITTEES OF THE AGENCY.
UPON REFERRAL, THE AGENCY DETERMINED THAT THE PROPOSAL IS NON-NEGOTIABLE
UNDER A PUBLISHED AGENCY DIRECTIVE WHICH ASSIGNED SUCH MATTERS, AMONG
OTHERS, TO MANPOWER UTILIZATION COUNCILS COMPOSED ONLY OF TOP MANAGEMENT
OFFICIALS. THE UNION APPEALED TO THE COUNCIL, IN EFFECT CHALLENGING THE
ADVISABILITY OF THE AGENCY'S DECISION, BUR NOT CONTESTING THE VALIDITY
OF THE DIRECTIVE RELIED UPON BY THE AGENCY IN MAKING ITS DETERMINATION.
COUNCIL ACTION (DECEMBER 1, 1971). THE COUNCIL DENIED REVIEW SINCE
THE UNION'S APPEAL FAILED TO MEET THE CONDITIONS PRESCRIBED FOR REVIEW
IN SECTION 11(C)(4) OF THE ORDER.
DEAR MR. WOLKOMIR:
REFERENCE IS MADE TO YOUR APPEAL TO THE COUNCIL FOR REVIEW OF A
NEGOTIABILITY DETERMINATION BY THE DEPARTMENT OF COMMERCE, IN THE
ABOVE-ENTITLED CASE.
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR APPEAL, AND THE OPPOSITION
THERETO FILED BY THE AGENCY, AND HAS DECIDED THAT REVIEW OF YOUR
PETITION MUST BE DENIED FOR THE FOLLOWING REASONS:
SECTION 11(C)(4) OF THE ORDER, WHICH IS INCORPORATED BY REFERENCE IN
SECTION 2411.12(A) OF THE COUNCIL'S RULES OF PROCEDURE, PROVIDES:
(4) A LABOR ORGANIZATION MAY APPEAL TO THE COUNCIL FOR A DECISION
WHEN--
(I) IT DISAGREES WITH AN AGENCY HEAD'S DETERMINATION THAT A PROPOSAL
WOULD VIOLATE
APPLICABLE LAW, REGULATION OF APPROPRIATE AUTHORITY OUTSIDE THE
AGENCY, OR THIS ORDER, OR
(II) IT BELIEVES THAT AN AGENCY'S REGULATIONS, AS INTERPRETED BY THE
AGENCY HEAD, VIOLATE
APPLICABLE LAW, REGULATION OF APPROPRIATE AUTHORITY OUTSIDE THE
AGENCY, OR THIS ORDER.
COMMERCE DETERMINED IN THE PRESENT CASE THAT THE PROPOSAL OF YOUR
ORGANIZATION WAS NOT NEGOTIABLE UNDER THE PROVISIONS OF ITS PUBLISHED
AGENCY DIRECTIVE (NOAA MANUAL 06-06, DATED 3/27/69). IN YOUR APPEAL,
YOU DISPUTE THE PROPRIETY OF THAT DETERMINATION BASED ON: SIMILAR
PROVISIONS IN A RECENT AGREEMENT BETWEEN YOUR UNION AND ANOTHER AGENCY;
THE PROPOSAL'S DESIRABILITY FROM THE STANDPOINTS OF MANAGEMENT,
EMPLOYEES AND THE UNION; AND THE ACCEPTANCE BY COMMERCE OF UNION
REPRESENTATION ON SAFETY COMMITTEES.
HOWEVER, SINCE THE AGENCY DID NOT DETERMINE THAT THE UNION'S PROPOSAL
WOULD VIOLATE APPLICABLE LAW, OUTSIDE REGULATION, OR THE ORDER, SECTION
11(C)(4)(I) IS CLEARLY INAPPLICABLE TO YOUR APPEAL. LIKEWISE, YOU DO
NOT ASSERT THAT THE AGENCY'S DIRECTIVE, AS INTERPRETED BY THE AGENCY
HEAD, VIOLATES ANY APPLICABLE LAW, OUTSIDE REGULATION, OR THE ORDER.
THEREFORE, YOUR APPEAL IS NOT SUBJECT TO REVIEW UNDER THE PROVISIONS OF
SECTION 11(C)(4)(II) OF THE ORDER.
ACCORDINGLY, SINCE YOUR APPEAL FAILS TO MEET THE CONDITIONS
PRESCRIBED FOR REVIEW IN SECTION 11(C)(4)(I) OR (II) OF THE ORDER, THE
COUNCIL HAS DIRECTED, IN ACCORDANCE WITH SECTION 2411.12(A) OF ITS
RULES, THAT REVIEW OF YOUR APPEAL BE DENIED.
FOR THE COUNCIL.
CC: G. H. DORSEY
COMMERCE
1 FLRC 126; FLRC NOS. 71A-36, 71A-38 AND 71A-40; OCTOBER 6, 1971.
MR. RAYMOND J. MALLOY
ASSOCIATE STAFF COUNSEL
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
400 FIRST STREET, N.W.
WASHINGTON, D.C. 20001
(SYNOPSIS) FLRC NOS. 71A-36, 71A-38 AND 71A-40
DEPARTMENT OF THE NAVY, NAVY EXCHANGE, MAYPORT, FLORIDA, A/SLMR NO.
24; AIR FORCE WELFARE BOARD, NON-APPROPRIATED FUND FISCAL CONTROL
OFFICE, ELMENDORF AIR FORCE BASE, ALASKA, A/SLMR NO. 28; SOUTHERN
CALIFORNIA EXCHANGE REGION, ARMY AND AIR FORCE EXCHANGE SERVICE, NORTON
AIR FORCE BASE, SAN BERNARDINO, CALIF., ET. AL., A/SLMR NOS. 26, 32, 33,
43. ON MAY 28, 1971, THE COUNCIL GRANTED AFGE'S REQUEST FOR AN
EXTENSION OF THE TIME FOR FILING APPEALS IN THESE CASES UNTIL 15 DAYS
AFTER THE ASSISTANT SECRETARY RULED ON THE UNION'S MOTIONS FOR
RECONSIDERATION. THE ASSISTANT SECRETARY ISSUED HIS 1971. THEREFORE,
UNDER SECTION 2411.14(E), (F) AND (G) OF THE COUNCIL'S RULES OF
PROCEDURE, THE APPEALS WERE DUE IN THE OFFICE OF THE COUNCIL ON OR
BEFORE THE CLOSE OF BUSINESS ON JULY 12, 1971. HOWEVER, THE UNION DID
NOT FILE ITS APPEALS WITH THE COUNCIL UNTIL JULY 22, 23 AND 30,
RESPECTIVELY, AND NO FURTHER EXTENSION OF TIME FOR FILING WAS EITHER
REQUESTED BY THE UNION OR GRANTED BY THE COUNCIL.
COUNCIL ACTION (OCTOBER 6, 1971). SINCE THE UNION'S APPEALS WERE
UNTIMELY FILED, AND APART FROM OTHER CONSIDERATIONS, THE COUNCIL DENIED
THE PETITIONS FOR REVIEW.
DEAR MR. MALLOY:
REFERENCE IS MADE TO YOUR APPEALS TO THE COUNCIL FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISIONS IN THE ABOVE-CAPTIONED CASES.
UPON CAREFUL CONSIDERATION, THE COUNCIL HAS DETERMINED THAT, FOR THE
REASONS INDICATED BELOW, YOUR PETITIONS WERE UNTIMELY FILED UNDER THE
COUNCIL'S RULES OF PROCEDURE AND CANNOT BE ACCEPTED FOR REVIEW:
ON MAY 28, 1971, THE COUNCIL GRANTED YOUR REQUEST FOR AN EXTENSION OF
THE TIME FOR FILING APPEALS IN THE PRESENT CASES UNTIL 15 DAYS AFTER THE
ASSISTANT SECRETARY RULED ON THE MOTIONS FOR RECONSIDERATION DESCRIBED
IN YOUR REQUEST. THE ASSISTANT SECRETARY ISSUED HIS DECISION DENYING
YOUR MOTIONS FOR RECONSIDERATION ON JUNE 25, 1971. THEREFORE, UNDER
SECTION 2411.14(E), (F) AND (G) OF THE COUNCIL'S RULES, YOUR APPEALS
WERE DUE IN THE OFFICE OF THE COUNCIL ON OR BEFORE THE CLOSE OF BUSINESS
ON JULY 12, 1971. HOWEVER, YOUR APPEALS WERE NOT FILED IN THESE CASES
UNTIL JULY 22, 23 AND 30, RESPECTIVELY, AND NO FURTHER EXTENSION OF TIME
FOR FILING WAS EITHER REQUESTED BY YOUR UNION OR GRANTED BY THE COUNCIL.
ACCORDINGLY, AS YOUR APPEALS WERE UNTIMELY FILED, AND APART FROM
OTHER CONSIDERATIONS, THE COUNCIL HAS DIRECTED THAT YOUR PETITIONS FOR
REVIEW BE DENIED.
FOR THE COUNCIL.
CC: W. J. USERY, JR.
DEPT. OF LABOR
G. SPINKS
NAVY
R. REED
EXCHANGE SERVICE
LT. COL. FRASER
JAG
L. G. BERMAN
AIR FORCE
MAJ. T. V. BALL
AIR FORCE
L. A. LA FERRIERE
NFFE
1 FLRC 124; FLRC NO. 71A-32; SEPTEMBER 10, 1971.
MR. GARY B. LANDSMAN
ASSISTANT TO THE STAFF COUNSEL
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
400 FIRST STREET, N.W.
WASHINGTON, D.C. 20001
(SYNOPSIS) FLRC NO. 71A-32
UNITED STATES DEPARTMENT OF AGRICULTURE, SOIL CONSERVATION SERVICE,
A/SLMR NO. 48. THE ASSISTANT SECRETARY DISMISSED AFGE'S PETITION FOR A
UNIT OF THE AGENCY'S DISTRICT CONSERVATIONISTS WORKING IN THE STATE OF
MINNESOTA, BECAUSE OF THE SUPERVISORY NATURE OF THE UNIT SOUGHT. AFGE
APPEALED TO THE COUNCIL FROM THIS DECISION, ALLEGING ERRONEOUS FINDINGS
AND CONCLUSIONS BY THE ASSISTANT SECRETARY IN HIS UNIT DETERMINATION.
HOWEVER, THE APPEAL DID NOT ESTABLISH THAT THE ASSISTANT SECRETARY'S
DECISION APPEARED ARBITRARY AND CAPRICIOUS, OR THAT IT PRESENTED ANY
MAJOR POLICY ISSUE.
COUNCIL ACTION (SEPTEMBER 10, 1971). THE COUNCIL DENIED REVIEW OF
AFGE'S APPEAL SINCE IT FAILED TO MEET THE REQUIREMENTS FOR REVIEW UNDER
SECTION 2411.12(C) OF THE COUNCIL'S RULES OF PROCEDURE.
DEAR MR. LANDSMAN:
REFERENCE IS MADE TO YOUR APPEAL TO THE COUNCIL FOR REVIEW OF THE
DECISION OF THE ASSISTANT SECRETARY IN THE ABOVE-CAPTIONED CASE.
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION AND HAS DETERMINED
THAT YOUR APPEAL FAILS TO MEET THE REQUIREMENTS FOR REVIEW, AS PROVIDED
UNDER SECTION 2411.12(C) OF THE COUNCIL'S RULES OF PROCEDURE, IN THAT NO
MAJOR POLICY ISSUE IS PRESENT NOR DOES THE ASSISTANT SECRETARY'S
DECISION APPEAR TO BE ARBITRARY AND CAPRICIOUS. ACCORDINGLY, THE
COUNCIL HAS DIRECTED THAT REVIEW OF YOUR APPEAL BE DENIED.
FOR THE COUNCIL.
CC: W. J. USERY, JR.
DEPT. OF LABOR
C. C. SMITH
DEPT. OF AGRICULTURE
1 FLRC 121; FLRC NO. 71A-20; JULY 9, 1971.
MR. FLOYD E. SMITH, INTERNATIONAL PRESIDENT
INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS
MACHINISTS BUILDING
1300 CONNECTICUT AVENUE
WASHINGTON, D.C. 20036
(SYNOPSIS) FLRC NO. 71A-20
IAM LOCAL LODGE 830 AND NAVAL ORDNANCE STATION, LOUISVILLE, KY.
DURING NEGOTIATIONS, THE UNION SUBMITTED A PROPOSAL THAT, IN THE
ARBITRATION OF DISPUTES OVER THE INTERPRETATION OR APPLICATION OF THE
AGREEMENT, NEITHER PARTY "WILL INTRODUCE OR MAKE USE OF ANY
INTERPRETATION OR APPLICATION OF AGENCY OR HIGHER LEVEL RULES,
REGULATIONS, POLICIES OR LAWS." THE UNION CLAIMED THAT SUCH LANGUAGE WAS
REQUIRED BY THE COUNCIL'S DECISION IN KIRK ARMY HOSPITAL (FLRC NO.
70A-11, ISSUED MARCH 9, 1971) AND MUST BE INCLUDED IN THE AGREEMENT.
UPON REFERRAL, DOD DISAGREED WITH THE UNION'S POSITION, AND THE UNION
APPEALED TO THE COUNCIL UNDER SECTION 11(C) OF THE ORDER.
COUNCIL ACTION (JULY 9, 1971). THE COUNCIL DENIED REVIEW BECAUSE, IN
THE PARTICULAR CIRCUMSTANCES OF THIS CASE, THE APPEAL DID NOT MEET THE
REQUIREMENTS FOR REVIEW UNDER SECTION 11(C) OF THE ORDER.
DEAR MR. SMITH:
REFERENCE IS MADE TO YOUR PETITION FOR REVIEW OF A DISPUTE OVER THE
REQUIRED INCLUSION OF THE UNION'S PROPOSAL IN AN AGREEMENT, FILED WITH
THE COUNCIL IN THE ABOVE-ENTITLED MATTER.
UPON CAREFUL CONSIDERATION OF THE DOCUMENTS WHICH YOU SUBMITTED, THE
COUNCIL HAS DETERMINED THAT, IN THE PARTICULAR CIRCUMSTANCES OF THIS
CASE, YOUR APPEAL DOES NOT MEET THE REQUIREMENTS FOR REVIEW UNDER
SECTION 11(C) OF THE ORDER. THEREFORE, IN ACCORDANCE WITH SECTION
2411.12(A) OF THE COUNCIL'S RULES OF PROCEDURE, THE COUNCIL HAS DIRECTED
THAT REVIEW OF YOUR APPEAL BE DENIED.
FOR THE COUNCIL.
CC: W. C. VALDES
DOD
1 FLRC 119; FLRC NO. 71A-25; AUGUST 23, 1971.
MR. JAMES L. NEUSTADT, STAFF COUNSEL
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
400 FIRST STREET, N.W.
WASHINGTON, D.C. 20001
(SYNOPSIS) FLRC NO. 71A-25
U.S. NAVY AUTODIN SWITCHING CENTER, U.S. MARINE CORPS SUPPLY CENTER,
ALBANY, GEORGIA, ASSISTANT SECRETARY CASE NO. 40-2608(RO). THE
ASSISTANT SECRETARY DISMISSED AFGE'S PETITION FOR A UNIT OF CRYPTOGRAPH
OPERATORS, UPON FINDING THAT THE REQUIREMENTS OF SECTION 3(B)(3) OF THE
ORDER FOR THE EXCLUSION OF THESE EMPLOYEES FROM COVERAGE WERE SATISFIED
IN THE PRESENT CASE. SECTION 3(B)(3) PROVIDES THAT THAT ORDER (EXCEPT
SECTION 22) DOES NOT APPLY TO ANY "AGENCY, OR OFFICE, BUREAU, OR ENTITY
WITHIN AN AGENCY, WHICH HAS AS A PRIMARY FUNCTION INTELLIGENCE,
INVESTIGATIVE, OR SECURITY WORK, WHEN THE HEAD OF THE AGENCY DETERMINES,
IN HIS SOLE JUDGMENT, THAT THE ORDER CANNOT BE APPLIED IN A MANNER
CONSISTENT WITH NATIONAL SECURITY REQUIREMENTS AND CONSIDERATIONS." THE
UNION APPEALED TO THE COUNCIL ON THE SOLE GROUND THAT, CONTRARY TO THE
ASSISTANT SECRETARY'S DECISION, THE "HEAD OF THE AGENCY" HAD FAILED TO
MAKE THE NECESSARY DETERMINATION TO EXCLUDE THE SUBJECT EMPLOYEES.
COUNCIL ACTION (AUGUST 23, 1971). THE COUNCIL DENIED REVIEW UNDER
SECTION 2411.12(C) OF THE COUNCIL'S RULES OF PROCEDURE, BECAUSE THE
ASSISTANT SECRETARY'S DECISION ON THE ISSUE RAISED BY THE UNION DOES NOT
APPEAR ARBITRARY AND CAPRICIOUS, AND DOES NOT PRESENT A MAJOR POLICY
ISSUE.
DEAR MR. NEUSTADT:
REFERENCE IS MADE TO YOUR APPEAL TO THE COUNCIL FOR REVIEW OF THE
DECISION OF THE ASSISTANT SECRETARY IN THE ABOVE-CAPTIONED CASE.
THE SOLE QUESTION RAISED IN YOUR PETITION IS WHETHER, CONTRARY TO THE
ASSISTANT SECRETARY'S DECISION, THE "HEAD OF THE AGENCY" FAILED TO MAKE
THE DETERMINATION TO EXCLUDE THE SUBJECT EMPLOYEES AS REQUIRED BY
SECTION 3(B)(3) OF THE ORDER. THE COUNCIL HAS CAREFULLY CONSIDERED YOUR
PETITION IN THIS REGARD AND HAS DETERMINED THAT YOUR APPEAL FAILS TO
MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED UNDER SECTION 2411.12(C) OF
THE COUNCIL'S RULES OF PROCEDURE. ACCORDINGLY, THE COUNCIL HAS DIRECTED
THAT REVIEW OF YOUR APPEAL BE DENIED.
FOR THE COUNCIL.
CC: W. J. USERY, JR.
DEPT. OF LABOR
D. F. BLACK
DEPT. OF NAVY
1 FLRC 117; FLRC NO. 71A-27; AUGUST 20, 1971.
MR. JAMES L. NEUSTADT, STAFF COUNSEL
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
400 FIRST STREET, N.W.
WASHINGTON, D.C. 20001
(SYNOPSIS) FLRC NO. 71A-27
DEPARTMENT OF THE NAVY, PORTSMOUTH NAVAL SHIPYARD, PORTSMOUTH, NEW
HAMPSHIRE, ASSISTANT SECRETARY CASE NO. 31-3278 E.O. AFGE FILED A
REPRESENTATION PETITION SEEKING A UNIT OF CERTAIN FOREMEN AND
SUPERVISORY INSPECTORS AT THE SHIPYARD. THE ASSISTANT SECRETARY UPHELD
THE REGIONAL ADMINISTRATOR'S DISMISSAL OF THE PETITION, BECAUSE OF THE
SUPERVISORY NATURE OF THE REQUESTED UNIT. AFGE APPEALED TO THE COUNCIL,
ALLEGING THAT THE ASSISTANT SECRETARY'S DECISION WAS ARBITRARY AND
CAPRICIOUS, AND REQUESTING A HEARING ON THE ELIGIBILITY OF THE EMPLOYEES
SOUGHT. HOWEVER, AFGE DID NOT ADVERT TO ANY PERSUASIVE EVIDENCE WHICH
WOULD CONTRADICT THE ASSISTANT SECRETARY'S FINDINGS, BASED ON HIS
INVESTIGATION, AS TO THE SUPERVISORY STATUS OF THE PERSONNEL INVOLVED.
COUNCIL ACTION (AUGUST 20, 1971). THE COUNCIL DENIED REVIEW OF
AFGE'S APPEAL UNDER SECTION 2411.12(C) OF THE COUNCIL'S RULES OF
PROCEDURE, SINCE THE DECISION OF THE ASSISTANT SECRETARY DOES NOT APPEAR
ARBITRARY AND CAPRICIOUS, AND DOES NOT PRESENT A MAJOR POLICY ISSUE.
DEAR MR. NEUSTADT:
REFERENCE IS MADE TO YOUR APPEAL TO THE COUNCIL FOR REVIEW OF THE
DECISION OF THE ASSISTANT SECRETARY IN THE ABOVE-CAPTIONED CASE.
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION AND THE OPPOSITION
THERETO FILED BY THE DEPARTMENT OF THE NAVY, AND HAS DETERMINED THAT
YOUR APPEAL FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED UNDER
SECTION 2411.12(C) OF THE COUNCIL'S RULES OF PROCEDURE. ACCORDINGLY,
THE COUNCIL HAS DIRECTED THAT REVIEW OF YOUR APPEAL BE DENIED.
FOR THE COUNCIL.
CC: W. J. USERY, JR.
DEPT. OF LABOR
A DI PASQUALE
NAVY
G. D. SPINKS
NAVY
1 FLRC 115; FLRC NO. 71A-26; AUGUST 20, 1971.
MR. JAMES L. NEUSTADT, STAFF COUNSEL
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
400 FIRST STREET, N.W.
WASHINGTON, D.C. 20001
MR. AMOS N. LATHAM, JR.
DIRECTOR OF PERSONNEL
DEPARTMENT OF THE TREASURY
WASHINGTON, D.C. 20220
(SYNOPSIS) FLRC NO. 71A-26
TREASURY DEPARTMENT, UNITED STATES MINT, PHILADELPHIA, PENNSYLVANIA,
A/SLMR NO. 45. IN A REPRESENTATION CASE FILED BY FRATERNAL ORDER OF
POLICE (FOP), THE ASSISTANT SECRETARY CARVED OUT A UNIT OF GUARDS FROM
AN EXISTING ACTIVITY-WIDE UNIT REPRESENTED TO AFGE. TREASURY APPEALED
TO THE COUNCIL FROM THIS DECISION ON GROUNDS RELATING TO CONTRACT BAR,
APPROPRIATENESS OF UNIT, AND QUALIFICATION OF FOP TO SERVE AS
REPRESENTATIVE OF THE UNIT FOUND APPROPRIATE. AFGE ALSO APPEALED,
ARGUING THAT THE GUARD UNIT IS INAPPROPRIATE.
COUNCIL ACTION (AUGUST 20, 1971). THE COUNCIL DENIED REVIEW UNDER
SECTION 2411.12(C) OF THE COUNCIL'S RULES OF PROCEDURE, BECAUSE IT DOES
NOT APPEAR THAT THE ASSISTANT SECRETARY'S DECISION WAS ARBITRARY AND
CAPRICIOUS, NOR DOES THE DECISION PRESENT A MAJOR POLICY ISSUE.
GENTLEMEN:
REFERENCE IS MADE TO YOUR APPEALS TO THE COUNCIL FOR REVIEW OF THE
DECISION OF THE ASSISTANT SECRETARY IN THE ABOVE-CAPTIONED CASE.
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR RESPECTIVE PETITIONS AND
HAS DETERMINED THAT THE APPEALS FAIL TO MEET THE REQUIREMENTS FOR REVIEW
AS PROVIDED UNDER SECTION 2411.12(C) OF THE COUNCIL'S RULES OF
PROCEDURE. ACCORDINGLY, THE COUNCIL HAS DIRECTED THAT REVIEW OF YOUR
APPEALS BE DENIED. THE COUNCIL HAS FURTHER DIRECTED THAT YOUR REQUESTS
FOR ORAL ARGUMENT BE DENIED.
FOR THE COUNCIL.
CC: W. J. USERY, JR.
DEPT. OF LABOR
A. J. CAIAZZO
FOP
1 FLRC 113; FLRC NO. 71A-24; AUGUST 20, 1971.
MR. ROBERT M. TOBIAS
NAIRE STAFF COUNSEL
711 14TH STREET, N.W.
SUITE 1100
WASHINGTON, D.C. 20005
(SYNOPSIS) FLRC NO. 71A-24
UNITED STATES TREASURY DEPARTMENT, INTERNAL REVENUE SERVICE,
ASSISTANT SECRETARY CASE NOS. 22-1916(CU), 22-1917(CU), 22-1918(CU).
NATIONAL ASSOCIATION OF INTERNAL REVENUE EMPLOYEES (NAIRE) FILED THREE
"CU" PETITIONS WITH THE ASSISTANT SECRETARY, SEEKING TO "CLARIFY" 69
SEPARATE UNITS INTO THREE VIRTUALLY NATIONWIDE UNITS OF THE EMPLOYEES
INVOLVED. THE ASSISTANT SECRETARY DISMISSED THE "CU" PETITIONS, HOLDING
THAT, UNDER THE CIRCUMSTANCES IN THESE CASES, REPRESENTATION PETITIONS
WOULD BE A MORE APPROPRIATE MEANS TO ACHIEVE THE RESULTS SOUGHT BY THE
UNION. NAIRE APPEALED TO THE COUNCIL FROM THE ASSISTANT SECRETARY'S
DECISION.
COUNCIL ACTION (AUGUST 20, 1971). THE COUNCIL DENIED REVIEW UNDER
SECTION 2411.12(C) OF ITS RULES OF PROCEDURE, SINCE THE ASSISTANT
SECRETARY'S DECISION NEITHER APPEARS ARBITRARY AND CAPRICIOUS, NOR
PRESENTS A MAJOR POLICY ISSUE.
MR. ROBERT M. TOBIAS
REFERENCE IS MADE TO YOUR APPEAL TO THE COUNCIL FOR REVIEW OF THE
DECISION OF THE ASSISTANT SECRETARY IN THE ABOVE-CAPTIONED CASES.
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION AND HAS DETERMINED
THAT YOUR APPEAL FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED
UNDER SECTION 2411.12(C) OF THE COUNCIL'S RULES OF PROCEDURE.
ACCORDINGLY, THE COUNCIL HAS DIRECTED THAT REVIEW OF YOUR APPEAL BE
DENIED.
FOR THE COUNCIL.
CC: W. J. USERY, JR.
DEPT. OF LABOR
C. R. THROWER
INTERNAL REVENUE SERVICE
1 FLRC 111; FLRC NO. 71A-21; AUGUST 20, 1971.
MR. WILLIAM B. PEER
BREDHOFF, BARR, GOTTESMAN,
COHEN & PEER
1000 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20036
(SYNOPSIS) FLRC NO. 71A-21
FEDERAL AVIATION ADMINISTRATION NEW YORK AIR ROUTE TRAFFIC CONTROL
CENTER, ASSISTANT SECRETARY CASE NO. 30-3213 E.O. THE ASSISTANT
SECRETARY UPHELD THE REGIONAL ADMINISTRATOR'S DENIAL OF INTERVENTION BY
PATCO'S NEW YORK CHAPTER IN THE REPRESENTATION CASE FILED BY NAGE,
INVOLVING CONTROLLERS AT THE NEW YORK AIR ROUTE TRAFFIC CONTROL CENTER.
THE PATCO CHAPTER APPEALED TO THE COUNCIL FOR REVIEW OF THE ASSISTANT
SECRETARY'S RULING. HOWEVER, IT DID NOT APPEAR THAT A FINAL DECISION IN
THE REPRESENTATION MATTER HAD BEEN RENDERED BY THE ASSISTANT SECRETARY.
COUNCIL ACTION (AUGUST 20, 1971). THE COUNCIL DIRECTED THAT REVIEW
OF THE APPEAL BE DENIED, WITHOUT PREJUDICE TO THE RENEWAL BY THE CHAPTER
OF ITS CONTENTIONS IN A PETITION DULY FILED WITH THE COUNCIL AFTER FINAL
DECISION ON THE ENTIRE REPRESENTATION CASE BY THE ASSISTANT SECRETARY.
DEAR MR. PEER:
REFERENCE IS MADE TO YOUR APPEAL TO THE COUNCIL FOR REVIEW OF THE
DECISION OF THE ASSISTANT SECRETARY IN THE ABOVE-CAPTIONED CASE.
THE COUNCIL HAS CAREFULLY CONSIDERED THE DOCUMENTS WHICH YOU
SUBMITTED, AND HAS DIRECTED THAT REVIEW OF YOUR PETITION BE DENIED AT
THIS TIME, WITHOUT PREJUDICE TO THE RENEWAL OF YOUR CONTENTIONS IN A
PETITION DULY FILED WITH THE COUNCIL AFTER FINAL DECISION ON THE ENTIRE
CASE BY THE ASSISTANT SECRETARY.
FOR THE COUNCIL.
CC: W. J. USERY, JR.
DEPT. OF LABOR
J. BOYLE
FAA
R. WEXLER
S. Q. LYMAN
NAGE
1 FLRC 109; FLRC NO. 71A-18; AUGUST 20, 1971.
MR. FLOYD E. SMITH, INTERNATIONAL PRESIDENT
INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS (AFL-CIO)
1300 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20036
(SYNOPSIS) FLRC NO. 71A-18
BOSTON NAVAL SHIPYARD, NAVY DEPARTMENT, ASSISTANT SECRETARY CASE NO.
31-3179. THE ASSISTANT SECRETARY DISMISSED IAM'S PETITION FOR SEVERANCE
OF A CRAFT UNIT OF MACHINISTS AND RELATED CLASSIFICATIONS FROM A MORE
COMPREHENSIVE UNIT OF WAGE BOARD EMPLOYEES AT THE SHIPYARD, ON THE
GROUND OF THE INAPPROPRIATENESS OF THE REQUESTED UNIT. IAM APPEALED TO
THE COUNCIL FROM THIS DECISION, ALLEGING ERROR BY THE ASSISTANT
SECRETARY IN HIS UNIT DETERMINATION. HOWEVER, THE APPEAL NEITHER
SPECIFICALLY ASSERTED, NOR ESTABLISHED, THAT THE ASSISTANT SECRETARY'S
DECISION APPEARS ARBITRARY OR CAPRICIOUS, OR THAT IT PRESENTS ANY MAJOR
POLICY ISSUE.
COUNCIL ACTION (AUGUST 20, 1971). THE COUNCIL DENIED REVIEW OF IAM'S
APPEAL BECAUSE IT FAILED TO MEET THE REQUIREMENTS FOR REVIEW UNDER
SECTION 2411.12(C) OF THE COUNCIL'S RULES OF PROCEDURE.
DEAR MR. SMITH:
REFERENCE IS MADE TO YOUR APPEAL TO THE COUNCIL FOR REVIEW OF THE
DECISION OF THE ASSISTANT SECRETARY IN THE ABOVE-CAPTIONED CASE.
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION AND THE OPPOSITION
THERETO FILED BY THE DEPARTMENT OF THE NAVY, AND HAS DETERMINED THAT
YOUR APPEAL FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED UNDER
SECTION 2411.12(C) OF THE COUNCIL'S RULES OF PROCEDURE. ACCORDINGLY,
THE COUNCIL HAS DIRECTED THAT REVIEW OF YOUR APPEAL BE DENIED. THE
COUNCIL HAS FURTHER DIRECTED THAT YOUR REQUEST FOR ORAL ARGUMENT BE
DENIED.
FOR THE COUNCIL.
CC: W. J. USERY, JR.
DEPT. OF LABOR
P. M. FRANK
DEPT. OF NAVY
W. F. CARR
NAGE
W. J. DONAHUE
AFGE
1 FLRC 107; FLRC NO. 71A-19; JULY 9, 1971.
MR. GORDON P. RAMSEY
GADSBY & HANNAH
1700 PENNSYLVANIA AVE., N.W.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 71A-19
NORFOLK NAVAL SHIPYARD, A/SLMR NO. 31. FOLLOWING A HEARING ON
CERTAIN OBJECTIONS FILED BY MTC TO A REPRESENTATION ELECTION WON BY NAGE
AT THE NORFOLK NAVAL SHIPYARD, THE ASSISTANT SECRETARY ISSUED A DECISION
AND DIRECTION OF SECOND ELECTION. NAGE APPEALED TO THE COUNCIL FOR
REVIEW OF THIS DECISION BY THE ASSISTANT SECRETARY. MTC FILED A
CONTINGENT APPEAL FROM THE ASSISTANT SECRETARY'S DECISION AND DIRECTION
OF SECOND ELECTION, AND FROM HIS EARLIER DECISION AND DIRECTION OF
HEARING ON OBJECTIONS. THE SECOND ELECTION HAS NOW BEEN HELD, BUT THE
BALLOTS HAVE BEEN IMPOUNDED BY THE ASSISTANT SECRETARY PENDING
DISPOSITION OF UNFAIR LABOR PRACTICE CHARGES FILED BY NAGE AGAINST NAVY.
COUNCIL ACTION (JULY 9, 1971). THE COUNCIL DENIED REVIEW OF THESE
INTERLOCUTORY APPEALS, WITHOUT PREJUDICE TO THE RENEWAL BY THE UNIONS OF
THEIR RESPECTIVE CONTENTIONS IN PETITIONS DULY FILED WITH THE COUNCIL
AFTER FINAL DECISION ON THE ENTIRE REPRESENTATION CASE BY THE ASSISTANT
SECRETARY.
DEAR MR. RAMSEY:
REFERENCE IS MADE TO YOUR PETITION FOR REVIEW, AND MOTION TO STRIKE,
THE DECISION ON OBJECTIONS AND DIRECTION OF SECOND ELECTION ISSUED BY
THE ASSISTANT SECRETARY IN THE ABOVE-ENTITLED CASE.
THE COUNCIL HAS CAREFULLY CONSIDERED THE DOCUMENTS WHICH YOU
SUBMITTED, AND THE OPPOSITION TO YOUR PETITION FILED BY THE FIFTH NAVAL
DISTRICT METAL TRADES COUNCIL, AFL-CIO, AND HAS DIRECTED THAT YOUR
PETITION AND MOTION BE DENIED AT THIS TIME, WITHOUT PREJUDICE TO THE
RENEWAL OF YOUR CONTENTIONS IN A PETITION DULY FILED WITH THE COUNCIL
AFTER FINAL DECISION ON THE ENTIRE CASE BY THE ASSISTANT SECRETARY. THE
COUNCIL HAS FURTHER DIRECTED THAT YOUR REQUEST FOR ORAL ARGUMENT BE
DENIED.
FOR THE COUNCIL.
CC: W. J. USERY, JR.
DEPT. OF LABOR
D. L. LESLIE
MTC
J. AMANN
NAVY
MR. DOUGLAS L. LESLIE
O'DONOGHUE & O'DONOGHUE
1912 SUNDERLAND PLACE, N.W.
WASHINGTON, D.C. 20036
DEAR MR. LESLIE:
REFERENCE IS MADE TO YOUR PETITION FOR REVIEW OF THE DECISION AND
DIRECTION OF HEARING, AND THE DECISION ON OBJECTIONS AND DIRECTION OF
SECOND ELECTION, ISSUED BY THE ASSISTANT SECRETARY IN THE ABOVE-ENTITLED
CASE.
THE COUNCIL HAS CAREFULLY CONSIDERED THE DOCUMENTS WHICH YOU
SUBMITTED, AND THE OPPOSITION TO YOUR PETITION FILED BY THE DEPARTMENT
OF THE NAVY, AND HAS DIRECTED THAT REVIEW OF YOUR PETITION BE DENIED AT
THIS TIME, WITHOUT PREJUDICE TO THE RENEWAL OF YOUR CONTENTIONS IN A
PETITION DULY FILED WITH THE COUNCIL AFTER FINAL DECISION ON THE ENTIRE
CASE BY THE ASSISTANT SECRETARY.
FOR THE COUNCIL.
CC: W. J. USERY, JR.
DEPT. OF LABOR
G. P. RAMSEY
NAGE
J. AMANN
NAVY
1 FLRC 105; FLRC NO. 71A-13; JULY 9, 1971.
MR. IRVING I. GELLER, DIRECTOR
LEGAL & EMPLOYEE RELATIONS
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
1737 H STREET, N.W.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 71A-13
DEPARTMENT OF ARMY, CORPS OF ENGINEERS, ST. PAUL, MINN., ASSISTANT
SECRETARY CASE NO. 51-1233. THE UNION (NFFE) FILED AN UNFAIR LABOR
PRACTICE COMPLAINT, ALLEGING THAT THE AGENCY TRANSFERRED AN EMPLOYEE FOR
SUBMITTING A GRIEVANCE CONCERNING AN ALTERCATION WITH HIS SUPERVISOR AND
THEREBY VIOLATED SECTION 19 A)(4) OF THE ORDER. THE ASSISTANT SECRETARY
UPHELD THE REGIONAL ADMINISTRATOR'S DISMISSAL OF THE COMPLAINT, BECAUSE
THERE WAS NO REASONABLE BASIS FOR THE COMPLAINT UNDER THE ORDER. THE
ASSISTANT SECRETARY FURTHER REFUSED TO CONSIDER NEW ALLEGATIONS OF
SECTION 19(A)(1) AND (2) VIOLATIONS RAISED FOR THE FIRST TIME IN NFFE'S
APPEAL TO THE ASSISTANT SECRETARY, SINCE THE ALLEGATIONS WERE NOT FILED
AS A CHARGE WITH THE AGENCY. NFFE APPEALED TO THE COUNCIL FROM THE
ASSISTANT SECRETARY'S DECISION.
COUNCIL ACTION (JULY 9, 1971). SINCE IT DOES NOT APPEAR FROM THE
APPEAL THAT THE ASSISTANT SECRETARY'S DECISION WAS EITHER ARBITRARY OR
CAPRICIOUS, OR PRESENTS ANY MAJOR POLICY ISSUE, THE COUNCIL DENIED
REVIEW UNDER SECTION 2411.12(C) OF THE COUNCIL'S RULES OF PROCEDURE.
DEAR MR. GELLER:
REFERENCE IS MADE TO YOUR PETITION TO THE COUNCIL FOR REVIEW OF THE
DECISION OF THE ASSISTANT SECRETARY IN THE ABOVE-CAPTIONED CASE.
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION AND THE OPPOSITION
THERETO FILED BY THE DEPARTMENT OF THE ARMY, AND HAS DETERMINED THAT
YOUR PETITION FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED
UNDER SECTION 2411.12(C) OF THE COUNCIL'S RULES OF PROCEDURE.
ACCORDINGLY, THE COUNCIL HAS DIRECTED THAT REVIEW OF YOUR APPEAL BE
DENIED.
FOR THE COUNCIL.
CC: W. J. USERY, JR.
DEPT. OF LABOR
G. L. OLMSTED
DEPT. OF ARMY
1 FLRC 100; FLRC NO. 71A-11; JULY 9, 1971.
AFGE LOCAL 1940
AND
PLUM ISLAND ANIMAL DISEASE
LABORATORY, DEPT. OF AGRICULTURE,
GREENPORT, N.Y.
(SYNOPSIS) FLRC NO. 71A-11
AFGE LOCAL 1940 AND PLUM ISLAND ANIMAL DISEASE LABORATORY, DEPT. OF
AGRICULTURE, GREENPORT, N.Y. THE NEGOTIABILITY DISPUTE ACCEPTED FOR
REVIEW BY THE COUNCIL (REPORT NO. 7) INVOLVED THE UNION'S PROPOSAL WHICH
WOULD REQUIRE BARGAINING ON CHANGES OF TOURS OF DUTY IF SO REQUESTED BY
THE UNION, AND WOULD PROSCRIBE ANY SUCH CHANGES BY THE AGENCY UNLESS
AGREED UPON BY THE UNION.
COUNCIL ACTION (JULY 9, 1971). THE COUNCIL HELD THAT, UNDER SECTION
11(B) OF THE ORDER, THE OBLIGATION TO BARGAIN DOES NOT EXTEND TO THE
ESTABLISHMENT OR CHANGES OF TOURS OF DUTY, AND SUSTAINED THE AGENCY'S
DETERMINATION THAT NEGOTIATIONS WERE NOT REQUIRED ON THE SUBJECT
PROPOSAL.
DURING NEGOTIATIONS ON A SUPPLEMENT TO THE AGREEMENT BETWEEN THE
UNION AND PLUM ISLAND ANIMAL DISEASE LABORATORY (PIADL), A DISPUTE AROSE
OVER THE ESTABLISHMENT OF TOURS OF DUTY BY THE AGENCY. THE
CIRCUMSTANCES SURROUNDING THIS DISPUTE ARE BRIEFLY AS FOLLOWS:
PIADL IS A FACILITY LOCATED ON AN ISLAND A SHORT DISTANCE OFF THE
COAST OF THE UNITED STATES, AND ENGAGED IN RESEARCH ON EXOTIC DISEASES
OF ANIMALS. ITS MAJOR OPERATIONS ARE CONDUCTED IN TWO LABORATORY
BUILDINGS, A DECONTAMINATION PLANT AND A POWER PLANT. TO PROVIDE FOR
ROUND-THE-CLOCK OPERATION AND MAINTENANCE OF ITS BUILDINGS AND
EQUIPMENT, PIADL CURRENTLY EMPLOYS FOUR CREWS OF 11 MEN EACH (INCLUDING
A FOREMAN), WHO WORK ON THREE ROTATING, WEEKLY SHIFTS, AND WHO
SUPPLEMENT THE REGULAR 8-HOUR, 5 DAYS PER WEEK, MAINTENANCE EMPLOYEES.
MANAGEMENT HAS NOW DECIDED THAT, BY REASON OF IMPROVEMENTS IN
EQUIPMENT AND OPERATING PROCEDURES, ITS WORK CAN BE MORE EFFECTIVELY AND
EFFICIENTLY ACCOMPLISHED BY ELIMINATING THE THIRD SHIFT IN ONE
LABORATORY, AND ESTABLISHING TWO NEW FIXED SHIFTS, WORKING ON A REGULAR
FIVE DAY BASIS. NO REDUCTIONS IN FORCE OR IN GRADES ARE ANTICIPATED,
ALTHOUGH PREMIUM PAY WOULD BE REDUCED. IMPROVED STAFFING OF THE FIRST
AND SECOND SHIFTS WOULD BE EFFECTED BY THE AGENCY ACTION.
THE UNION CLAIMS THAT SUCH CHANGES IN TOURS OF DUTY, AND PARTICULARLY
THE ESTABLISHMENT OF NEW TOURS, ARE NEGOTIABLE, AND SUBMITTED THE
FOLLOWING PROPOSAL ON TOURS OF DUTY, DURING BARGAINING ON THE
SUPPLEMENTAL AGREEMENT:
BOTH PARTIES RECOGNIZE THAT MANAGEMENT HAS THE RIGHT TO FIX AND TO
ASSIGN THE NUMBER, TYPE AND
GRADES OF PERSONNEL TO ANY SEGMENT IN ITS ORGANIZATION, TO ANY
LOCATION AND TO AN APPROVED
SCHEDULED TOUR OF DUTY. CHANGES IN PERSONNEL FROM ONE SCHEDULED
SHIFT TO ANOTHER, OR FROM ONE
EXISTING FIVE-DAY PERIOD TO ANOTHER, ARE ASSIGNMENTS OR SCHEDULING OF
PERSONNEL AND NOT
CHANGES IN TOURS OF DUTY.
SHOULD MANAGEMENT IN EXERCISING THE ABOVE-CITED RIGHTS DETERMINE THAT
A CHANGE IN SCHEDULED
TOURS OF DUTY IS NECESSARY TO MAINTAIN THE EFFICIENCY OF THE
GOVERNMENT OPERATIONS ENTRUSTED
TO THEM, SUCH DETERMINATION WILL BE PRESENTED TO THE LOCAL
REPRESENTATIVES WITH A RECOMMENDED
REVISED SCHEDULE TOUR OF DUTY FOR CONSIDERATION, TOGETHER WITH A
RECOMMENDED EFFECTIVE DATE,
NOT LESS THAN TWO PAY PERIODS DATING FROM THE DATE IT IS PRESENTED TO
THE LOCAL.
DURING THE ABOVE PERIOD, CONSULTATIONS WILL BE UNDERTAKEN TO ARRIVE
AT A MUTUALLY
ACCEPTABLE SCHEDULE. IF CONSULTATION DOES NOT RESULT IN A MUTUALLY
ACCEPTABLE TOUR OF DUTY
AND IF REQUESTED BY THE LOCAL, NEGOTIATIONS OF A FORMAL SCHEDULE WILL
BE INITIATED; THESE
NEGOTIATIONS SHALL BE CONDUCTED IN GOOD FAITH TO ASSURE NO UNDUE
DELAY IN ESTABLISHING AN
EFFECTIVE DATE FOR A REVISED SCHEDULE.
TOURS OF DUTY NOW IN EXISTENCE WILL REMAIN THE SAME UNLESS CHANGED IN
ACCORDANCE WITH THE
PROVISIONS OF THIS ARTICLE.
PIADL ASSERTED THAT THE UNION'S PROPOSAL IS NON-NEGOTIABLE AND, UPON
REFERRAL, THE DEPARTMENT OF AGRICULTURE UPHELD SUCH POSITION, ON THE
GROUND THAT THE PROPOSAL CONFLICTS WITH MANAGEMENT'S RIGHTS UNDER THE
ORDER. THE UNION APPEALED TO THE COUNCIL FROM AGRICULTURE'S
DETERMINATION, AND THE COUNCIL ACCEPTED THE PETITION FOR REVIEW UNDER
SECTION 11(C)(4) OF THE ORDER.
THE ESSENTIAL QUESTION IS WHETHER CHANGES IN TOURS OF DUTY, INCLUDING
THE ESTABLISHMENT OF NEW TOURS, MUST BE NEGOTIATED UNDER SECTION 11(A)
OF THE ORDER, OR WHETHER SUCH CHANGES ARE EXCEPTED FROM THE OBLIGATION
TO BARGAIN, PARTICULARLY UNDER SECTION 11(B) OF THE ORDER.
SECTION 11(A) PROVIDES THAT AN AGENCY AND THE EXCLUSIVE
REPRESENTATIVE OF ITS EMPLOYEES SHALL NEGOTIATE "WITH RESPECT TO
PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING
CONDITIONS, SO FAR AS MAY BE APPROPRIATE UNDER . . . THIS ORDER."
SECTION 11(B), HOWEVER, EXCLUDES FROM THE OBLIGATION TO BARGAIN "MATTERS
WITH RESPECT TO . . . THE NUMBERS, TYPES, AND GRADES OF POSITIONS OR
EMPLOYEES ASSIGNED TO AN ORGANIZATIONAL UNIT, WORK PROJECT OR TOUR OF
DUTY." SECTION 11(B) FURTHER PROVIDES: "THIS DOES NOT PRECLUDE THE
PARTIES FROM NEGOTIATING AGREEMENTS PROVIDING APPROPRIATE ARRANGEMENTS
FOR EMPLOYEES ADVERSELY AFFECTED BY THE IMPACT OF REALIGNMENT OF WORK
FORCES OR TECHNOLOGICAL CHANGE."
THE INTENT OF THE FOREGOING PROVISIONS IN SECTION 11(B) IS EXPLAINED
IN THE REPORT ACCOMPANYING E.O. 11491 (LABOR-MANAGEMENT RELATIONS IN THE
FEDERAL SERVICE (1969)), AS FOLLOWS (PP. 38-39):
WE BELIEVE THERE IS NEED TO CLARIFY THE PRESENT LANGUAGE IN SECTION
6(B) OF (E.O. 10988, WHICH
PRECEDED E.O. 11491 AND WHICH EXCLUDED FROM THE OBLIGATION TO BARGAIN
AN AGENCY'S "ASSIGNMENT
OF ITS PERSONNEL"). THE WORDS 'ASSIGNMENT OF ITS PERSONNEL'
APPARENTLY HAVE BEEN INTERPRETED
BY SOME AS EXCLUDING FROM THE SCOPE OF NEGOTIATIONS THE POLICIES OR
PROCEDURES MANAGEMENT WILL
APPLY IN TAKING SUCH ACTIONS AS THE ASSIGNMENT OF EMPLOYEES TO
PARTICULAR SHIFTS OR THE
ASSIGNMENT OF OVERTIME. THIS CLEARLY IS NOT THE INTENT OF THE
LANGUAGE. THIS LANGUAGE SHOULD
BE CONSIDERED AS APPLYING TO AN AGENCY'S RIGHT TO ESTABLISH STAFFING
PATTERNS FOR ITS
ORGANIZATION AND THE ACCOMPLISHMENT OF ITS WORK-- THE NUMBER OF
EMPLOYEES IN THE AGENCY AND
THE NUMBER, TYPE AND GRADES OF POSITIONS OR EMPLOYEES ASSIGNED IN THE
VARIOUS SEGMENTS OF ITS
ORGANIZATION AND TO WORK PROJECTS AND TOURS OF DUTY.
TO REMOVE ANY POSSIBLE FUTURE MISINTERPRETATION OF THE INTENT OF THE
PHRASE 'ASSIGNMENT OF
ITS PERSONNEL,' WE RECOMMEND THAT THERE BE SUBSTITUTED IN A NEW ORDER
THE PHRASE 'THE NUMBER
OF EMPLOYEES, AND THE NUMBERS, TYPES AND GRADES OF POSITIONS, OR
EMPLOYEES ASSIGNED TO AN
ORGANIZATIONAL UNIT, WORK PROJECT OR TOUR OF DUTY.' AS FURTHER
CLARIFICATION, A SENTENCE
SHOULD BE ADDED TO THIS SECTION PROVIDING THAT AGENCIES AND LABOR
ORGANIZATIONS SHALL NOT BE
PRECLUDED FROM NEGOTIATING AGREEMENTS PROVIDING FOR APPROPRIATE
ARRANGEMENTS FOR EMPLOYEES
ADVERSELY AFFECTED BY THE IMPACT OF REALIGNMENT OF WORK FORCES OR
TECHNOLOGICAL CHANGE.
IT IS PLAIN FROM THE FOREGOING THAT THE ESTABLISHMENT OR CHANGE OF
TOURS OF DUTY WAS INTENDED TO BE EXCLUDED FROM THE OBLIGATION TO BARGAIN
UNDER SECTION 11(B). AS STATED IN THE REPORT, THE AGENCY HAS THE RIGHT
TO DETERMINE THE "STAFFING PATTERNS" FOR ITS ORGANIZATION AND FOR
ACCOMPLISHING ITS MISSION. CLEARLY, THE NUMBER OF ITS WORK SHIFTS OR
TOURS OF DUTY, AND THE DURATION OF THE SHIFTS, COMPRISE AN ESSENTIAL AND
INTEGRAL PART OF THE "STAFFING PATTERNS" NECESSARY TO PERFORM THE WORK
OF THE AGENCY. FURTHER, THE SPECIFIC RIGHT OF AN AGENCY TO DETERMINE
THE "NUMBERS, TYPES, AND GRADES OF POSITIONS OR EMPLOYEES" ASSIGNED TO A
SHIFT OR TOUR OF DUTY, AS PROVIDED IN SECTION 11(B), OBVIOUSLY SUBSUMES
THE AGENCY'S RIGHT TO FIX OR CHANGE THE NUMBER AND DURATION OF THOSE
SHIFTS OR TOURS. TO HOLD OTHERWISE, I.E. TO INTERPRET SECTION 11(B) AS
SANCTIONING THE RIGHT OF THE AGENCY TO DETERMINE THE COMPOSITION OF THE
SHIFT OR TOUR AND NOT THE FRAMEWORK UPON WHICH THAT COMPOSITION DEPENDS,
WOULD RENDER THE PROVISIONS OF SECTION 11(B) VIRTUALLY MEANINGLESS.
WHILE THE OBLIGATION TO BARGAIN DOES NOT THEREFORE EXTEND TO THE
ESTABLISHMENT OR CHANGE OF TOURS OF DUTY UNDER SECTION 11(B),
NEGOTIATIONS MAY BE REQUIRED ON THE IMPACT OF SUCH ACTIONS ON THE
EMPLOYEES INVOLVED. FOR EXAMPLE, AS INDICATED IN THE REPORT, BARGAINING
MAY BE REQUIRED ON THE CRITERIA FOR THE ASSIGNMENT OF INDIVIDUAL
EMPLOYEES TO PARTICULAR SHIFTS; ON APPROPRIATE ARRANGEMENTS FOR
EMPLOYEES WHO ARE ADVERSELY AFFECTED BY THE REALIGNMENT OF THE WORK
FORCE; AND THE LIKE. INDEED, THE AGENCY STATED IN THE STANT CASE,
"THERE IS NO DISAGREEMENT THAT MATTERS SUCH AS PROCEDURES FOR
DETERMINING HOW QUALIFIED INDIVIDUALS WILL BE ASSIGNED TO A PARTICULAR
SHIFT OR TOUR AND ADVANCE NOTICE OF SUCH CHANGES BEFORE THEY ARE MADE
ARE NEGOTIABLE AND AGREEMENT HAS, IN FACT, BEEN REACHED ON THOSE
MATTERS."
TURNING NOW TO THE UNION'S PROPOSAL IN THE PRESENT CASE, THIS
PROPOSAL WOULD, AMONG OTHER THINGS, REQUIRE BARGAINING ON CHANGES OF
TOURS OF DUTY IF SO REQUESTED BY THE UNION, AND WOULD PROSCRIBE ANY SUCH
CHANGES BY THE AGENCY UNLESS AGREED UPON BY THE UNION. AS ALREADY
INDICATED, THE OBLIGATION OF AN AGENCY TO BARGAIN DOES NOT EXTEND TO THE
ESTABLISHMENT OR CHANGES OF TOURS OF DUTY UNDER SECTION 11(B). PIADL
WAS CONSEQUENTLY FREE FROM THE OBLIGATION TO BARGAIN ON THIS PROPOSAL BY
THE UNION.
ACCORDINGLY, PURSUANT TO SECTION 2411.18(D) OF THE COUNCIL'S RULES OF
PROCEDURE, WE HOLD THAT THE DETERMINATION BY THE DEPARTMENT OF
AGRICULTURE THAT NEGOTIATIONS WERE NOT REQUIRED ON THE UNION'S PROPOSAL
HERE INVOLVED WAS PROPER AND MUST BE SUSTAINED.
BY THE COUNCIL.
ISSUED: JULY 9, 1971
1 FLRC 98; FLRC NO. 71A-17; JUNE 11, 1971.
MR. JAMES L. NEUSTADT
STAFF COUNSEL
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES (AFL-CIO)
400 FIRST STREET, N.W.
WASHINGTON, D.C. 20001
(SYNOPSIS) FLRC NO. 71A-17
VETERANS ADMINISTRATION HOSPITAL, BROCKTON, MASSACHUSETTS, A/SLMR NO.
21. THE ASSISTANT SECRETARY, IN HIS DECISION AND ORDER, DISMISSED THE
REPRESENTATION PETITION FILED BY AFGE LOCAL 2592, BECAUSE OF AFGE'S LACK
OF COOPERATION IN THE PROCESSING OF ITS PETITION, AND BECAUSE A GUARD IS
PRESIDENT OF THE NONGUARD LOCAL SEEKING REPRESENTATION OF THE
INSTALLATION-WIDE UNIT IN THIS CASE. IN ITS APPEAL TO THE COUNCIL, AFGE
DID NOT DISPUTE THE AUTHORITY OF THE ASSISTANT SECRETARY TO DISMISS THE
REPRESENTATION PETITION FOR LACK OF COOPERATION, BUT CHALLENGED THE
GUARD STATUS OF ITS LOCAL PRESIDENT AS A PROPER GROUND FOR DISMISSAL.
COUNCIL ACTION (JUNE 11, 1971). THE COUNCIL DENIED REVIEW OF AFGE'S
APPEAL BY REASON OF AFGE'S LACK OF COOPERATION IN THE PROCESSING OF ITS
PETITION, AND WITHOUT PASSING UPON THE QUESTIONS RAISED IN THE APPEAL
RELATING TO THE EFFECT OF THE GUARD STATUS OF THE LOCAL PRESIDENT.
DEAR MR. NEUSTADT:
REFERENCE IS MADE TO YOUR APPEAL TO THE COUNCIL FOR REVIEW OF THE
DECISION OF THE ASSISTANT SECRETARY IN THE ABOVE-ENTITLED CASE.
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR APPEAL AND HAS DIRECTED
THAT REVIEW BE DENIED BY REASON OF AFGE'S LACK OF COOPERATION IN THE
PROCESSING OF ITS PETITION, AND WITHOUT PASSING UPON THE QUESTIONS
RAISED IN YOUR APPEAL RELATING TO THE EFFECT OF THE GUARD STATUS OF THE
AFGE LOCAL PRESIDENT.
FOR THE COUNCIL.
CC: W. J. USERY, JR.
DEPT. OF LABOR
W. WINICK
VA HOSPITAL, BROCKTON, MASS.
K. T. LYONS
NAGE
1 FLRC 96; FLRC NO. 71A-4; JUNE 8, 1971.
MR. A. DI PASQUALE, DIRECTOR
LABOR AND EMPLOYEE RELATIONS DIVISION
OFFICE OF CIVILIAN MANPOWER MANAGEMENT
DEPARTMENT OF THE NAVY
WASHINGTON, D.C. 20390
(SYNOPSIS) FLRC NO. 71A-4
PORTSMOUTH NAVAL SHIPYARD, APPRENTICE TRAINING SCHOOL, A/SLMR NO. 2.
NAVY APPEALED TO THE COUNCIL FROM A DECISION AND DIRECTION OF ELECTION
ISSUED BY THE ASSISTANT SECRETARY, WHICH FOUND APPROPRIATE A UNIT OF
TEACHERS AT THE APPRENTICE TRAINING SCHOOL OF THE AGENCY, AS REQUESTED
BY NAGE. AFTER THE APPEAL WAS FILED, BUT BEFORE THE ELECTION WAS
CONDUCTED, NAGE REQUESTED AND WAS GRANTED PERMISSION TO WITHDRAW ITS
REPRESENTATION PETITION, AND THE MATTER WAS CLOSED BY THE ASSISTANT
SECRETARY. HOWEVER, NAVY WISHED TO MAINTAIN ITS APPEAL BEFORE THE
COUNCIL.
COUNCIL ACTION (JUNE 8, 1971). SINCE THE SITUATION INVOLVED IN THE
CASE WAS MOOT, AND APART FROM OTHER CONSIDERATIONS, THE COUNCIL DENIED
REVIEW OF THE APPEAL.
DEAR MR. DI PASQUALE:
REFERENCE IS MADE TO YOUR APPEAL TO THE COUNCIL FOR REVIEW OF THE
DECISION OF THE ASSISTANT SECRETARY IN THE ABOVE-CAPTIONED CASE.
THE COUNCIL HAS BEEN INFORMED THAT THE REPRESENTATION PETITION HERE
CONCERNED HAS BEEN WITHDRAWN AND THE CASE CLOSED BY THE ASSISTANT
SECRETARY. ACCORDINGLY, SINCE THE SITUATION INVOLVED IN THIS CASE IS
MOOT, AND APART FROM OTHER CONSIDERATIONS, THE COUNCIL HAS DIRECTED THAT
REVIEW OF YOUR APPEAL BE DENIED.
FOR THE COUNCIL.
CC: W. J. USERY, JR.
DEPT. OF LABOR
W. F. CARR
NAGE
T. D. FLYNN
AFTE
A. WOOLF
AFGE
1 FLRC 94; FLRC NO. 71A-16; JUNE 7, 1971.
MR. N. T. WOLKOMIR, PRESIDENT
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES
1737 H STREET, N.W.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 71A-16
DEFENSE SUPPLY AGENCY, DEFENSE CONTRACT ADMINISTRATION SERVICES
REGION, ATLANTA, DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT,
BIRMINGHAM, A/SLMR NO. 23. THE ASSISTANT SECRETARY DISMISSED NFFE'S
PETITION FOR A UNIT LIMITED TO EMPLOYEES OF THE AGENCY LOCATED AT
MOBILE, ALABAMA, ON THE GROUNDS OF INAPPROPRIATENESS OF THE REQUESTED
UNIT. NFFE APPEALED TO THE COUNCIL FROM THIS DECISION, ALLEGING
ERRONEOUS FINDINGS AND CONCLUSIONS BY THE ASSISTANT SECRETARY IN HIS
UNIT DETERMINATION. HOWEVER, THE APPEAL NEITHER ASSERTED, NOR
ESTABLISHED, THAT THE ASSISTANT SECRETARY'S DECISION WAS ARBITRARY OR
CAPRICIOUS, OR THAT IT PRESENTED ANY MAJOR POLICY ISSUE.
COUNCIL ACTION (JUNE 7, 1971). THE COUNCIL DENIED REVIEW OF NFFE'S
APPEAL BECAUSE IT FAILED TO MEET THE REQUIREMENTS FOR REVIEW UNDER
SECTION 2411.12(C) OF THE COUNCIL'S RULES OF PROCEDURE.
DEAR MR. WOLKOMIR:
REFERENCE IS MADE TO YOUR APPEAL TO THE COUNCIL FOR REVIEW OF THE
DECISION OF THE ASSISTANT SECRETARY IN THE ABOVE-CAPTIONED CASE.
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION AND HAS DETERMINED
THAT YOUR APPEAL FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED
UNDER SECTION 2411.12(C) OF THE COUNCIL'S RULES OF PROCEDURE.
ACCORDINGLY, THE COUNCIL HAS DIRECTED THAT REVIEW OF YOUR APPEAL BE
DENIED.
FOR THE COUNCIL.
CC: W. J. USERY, JR.
DEPT. OF LABOR
W. R. HART
DEF. SUPPLY AGENCY
R. MALLOY
AFGE
1 FLRC 92; FLRC NO. 71A-14; JUNE 7, 1971.
MR. FRED R. MARTIN
INTERNATIONAL REPRESENTATIVE
AMERICAN FEDERATION OF
TECHNICAL ENGINEERS
9 FLEETWOOD DRIVE
SANDY HOOK, CONNECTICUT 06482
(SYNOPSIS) FLRC NO. 71A-14
U.S. NAVAL UNDERWATER WEAPONS AND RESEARCH ENGINEERING SECTION,
NEWPORT, R.I., ASSISTANT SECRETARY CASE NO. 31-3252 E.O. THE ASSISTANT
SECRETARY DISMISSED OBJECTIONS BY AFTE TO A CONSENT ELECTION WON BY
NAGE. AFTE APPEALED TO THE COUNCIL FROM THIS DECISION, ALLEGING ERRORS
BY THE ASSISTANT SECRETARY RELATING MAINLY TO THE VALIDITY OF
PRE-ELECTION PROCEDURES AND THE CONSENT ELECTION AGREEMENT. HOWEVER,
THE APPEAL NEITHER ASSERTED, NOR ESTABLISHED, THAT THE ASSISTANT
SECRETARY'S DECISION WAS ARBITRARY OR CAPRICIOUS, OR THAT IT PRESENTED
ANY MAJOR POLICY ISSUE.
COUNCIL ACTION (JUNE 7, 1971). THE COUNCIL DENIED REVIEW BECAUSE
AFTE'S APPEAL FAILED TO MEET THE REQUIREMENTS FOR REVIEW UNDER SECTION
2411.12(C) OF THE COUNCIL'S RULES OF PROCEDURE.
DEAR MR. MARTIN:
REFERENCE IS MADE TO YOUR APPEAL TO THE COUNCIL FOR REVIEW OF THE
DECISION OF THE ASSISTANT SECRETARY IN THE ABOVE-CAPTIONED CASE.
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION, AND HAS
DETERMINED THAT YOUR APPEAL FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS
PROVIDED UNDER SECTION 2411.12(C) OF THE COUNCIL'S RULES OF PROCEDURE.
ACCORDINGLY, THE COUNCIL HAS DIRECTED THAT REVIEW OF YOUR APPEAL BE
DENIED.
FOR THE COUNCIL.
CC: W. J. USERY, JR.
DEPT. OF LABOR
M. WILLIAMSON
NAGE
A. DI PASQUALE
DEPT. OF NAVY
1 FLRC 90; FLRC NO. 71A-9; MAY 17, 1971.
MR. A. DI PASQUALE, DIRECTOR
LABOR AND EMPLOYEE RELATIONS DIVISION
OFFICE OF CIVILIAN MANPOWER MANAGEMENT
DEPARTMENT OF THE NAVY
WASHINGTON, D.C. 20390
(SYNOPSIS) FLRC NO. 71A-9
DEPARTMENT OF THE NAVY, ALAMEDA NAVAL AIR STATION, A/SLMR NO. 6.
NAVY APPEALED FROM THAT PART OF THE ASSISTANT SECRETARY'S DECISION WHICH
DIRECTED A SELF-DETERMINATION ELECTION IN (AND LATER CERTIFIED) A CRAFT
UNIT OF PLUMBERS, PIPEFITTERS, AND RELATED CLASSIFICATIONS, IN ADDITION
TO FINDING APPROPRIATE A RESIDUAL BASE-WIDE BLUE COLLAR UNIT. THE
ASSISTANT SECRETARY DETERMINED, IN CONNECTION WITH THE CRAFT UNIT, THAT
THE EMPLOYEES INVOLVED CONSTITUTED A FUNCTIONALLY DISTINCT CRAFT, WITH A
CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST. HE FURTHER FOUND THAT
INSUFFICIENT EVIDENCE WAS OFFERED TO ESTABLISH THAT SUCH UNIT WOULD NOT
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS,
OBSERVING IN THIS REGARD THE HISTORY OF RECOGNITION OF UNIONS BY THE
ACTIVITY IN SEPARATE UNITS, AND THE LACK OF EVIDENCE THAT SUCH
RELATIONSHIPS HAD HAMPERED AGENCY OPERATIONS OR PRECLUDED EFFECTIVE
DEALINGS.
COUNCIL ACTION (MAY 17, 1971). THE COUNCIL DENIED REVIEW OF NAVY'S
APPEAL BECAUSE IT FAILED TO MEET THE REQUIREMENTS FOR REVIEW UNDER
SECTION 2411.12(C) OF THE COUNCIL'S RULES OF PROCEDURE. THE COUNCIL
NOTED THAT EVIDENCE AS TO WHETHER A REQUESTED UNIT "WILL PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS" IS WITHIN THE
SPECIAL KNOWLEDGE OF, AND MUST BE SUBMITTED BY, THE AGENCY INVOLVED;
THAT NAVY'S PETITION FAILED TO INDICATE THAT THE AGENCY WAS DENIED A
FULL OPPORTUNITY BY THE ASSISTANT SECRETARY TO INTRODUCE ANY SUCH
EVIDENCE WHICH IT DESIRED IN THE PROCEEDING; AND THAT NAVY'S PETITION
FAILED TO REFLECT ANY SPECIFIC EVIDENCE SUFFICIENT TO WARRANT REVIEW OF
THE DECISION OF THE ASSISTANT SECRETARY ON THE APPROPRIATENESS OF THE
CRAFT UNIT.
DEAR MR. DI PASQUALE:
REFERENCE IS MADE TO YOUR APPEAL TO THE COUNCIL FOR REVIEW OF THE
DECISION OF THE ASSISTANT SECRETARY IN THE ABOVE-ENTITLED CASE.
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION AND THE OPPOSITION
THERETO FILED BY LOCAL 444, UNITED ASSOCIATION OF PLUMBERS AND GAS
FITTERS, AFL-CIO, AND HAS DIRECTED THAT YOUR PETITION BE DENIED BECAUSE
IT FAILS TO MEET THE REQUIREMENTS FOR REVIEW UNDER SECTION 2411.12(C) OF
THE COUNCIL'S RULES OF PROCEDURE. THE COUNCIL NOTED, IN THIS REGARD,
THAT EVIDENCE AS TO WHETHER A REQUESTED UNIT "WILL PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS" IS WITHIN THE SPECIAL
KNOWLEDGE OF, AND MUST BE SUBMITTED BY, THE AGENCY INVOLVED; THAT YOUR
PETITION FAILS TO INDICATE THAT YOU WERE DENIED A FULL OPPORTUNITY BY
THE ASSISTANT SECRETARY TO INTRODUCE ANY SUCH EVIDENCE WHICH YOU DESIRED
IN THIS PROCEEDING; AND THAT YOUR PETITION FAILS TO REFLECT ANY
SPECIFIC EVIDENCE SUFFICIENT TO WARRANT REVIEW OF THE DECISION OF THE
ASSISTANT SECRETARY ON THE APPROPRIATENESS OF THE CRAFT UNIT.
FOR THE COUNCIL.
CC: F. B. MORGAN
J. D. FOOTE
W. J. USERY, JR.
DEPT. OF LABOR
1 FLRC 88; FLRC NO. 71A-10; MAY 13, 1971.
MR. GORDON P. RAMSEY
ATTORNEY FOR THE NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES, INC.
GADSBY & HANNAH
1700 PENNSYLVANIA AVENUE, N.W.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 71A-10
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, INC., A/SLMR NO.
10. THE ASSISTANT SECRETARY, IN HIS DECISION AND ORDER, FOUND THAT
PATCO HAD LOST ITS STATUS AS A LABOR ORGANIZATION UNDER SECTION 2(E)(2),
AND COMMITTED UNFAIR LABOR PRACTICES IN VIOLATION OF SECTION 19(B)(4),
OF E.O. 11491, AND ORDERED PATCO TO TAKE DETAILED REMEDIAL ACTIONS.
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, INC., TIMELY FILED A
PETITION FOR REVIEW, ON GROUNDS RELATING TO THE ADEQUACY OF THE REMEDIES
ORDERED. APPROXIMATELY 18 DAYS AFTER THE TIME HAD EXPIRED FOR TAKING AN
APPEAL TO THE COUNCIL, PATCO FILED A MOTION FOR LEAVE ALSO TO FILE A
PETITION FOR REVIEW.
COUNCIL ACTION (MAY 13, 1971). THE COUNCIL DENIED REVIEW OF NAGE'S
APPEAL BECAUSE IT FAILED TO MEET THE REQUIREMENTS FOR REVIEW UNDER
SECTION 2411.12(C) OF THE COUNCIL'S RULES OF PROCEDURE. THE COUNCIL
FURTHER DENIED PATCO'S MOTION FOR LEAVE TO FILE A PETITION FOR REVIEW,
BECAUSE, APART FROM OTHER CONSIDERATIONS, OF THE UNTIMELINESS OF THE
PETITION SOUGHT TO BE FILED.
DEAR MR. RAMSEY:
REFERENCE IS MADE TO YOUR PETITION FOR REVIEW OF THE ASSISTANT
SECRETARY'S DECISION, FILED WITH THE COUNCIL IN THE ABOVE-ENTITLED
MATTER.
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR APPEAL AND THE OPPOSITION
THERETO FILED BY THE PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION,
INC., AND HAS DETERMINED THAT YOUR PETITION FAILS TO MEET THE
REQUIREMENTS FOR REVIEW AS PROVIDED UNDER SECTION 2411.12(C) OF THE
COUNCIL'S RULES OF PROCEDURE. ACCORDINGLY, THE COUNCIL HAS DIRECTED
THAT REVIEW OF YOUR PETITION BE DENIED.
FOR THE COUNCIL.
CC: W. J. USERY, JR.
C. J. PETERS
W. B. PEER
J. D. HILL
J. L. NEUSTADT
I. I. GELLER
L. P. POULTON
MR. WILLIAM B. PEER
BREDHOFF, BARR, GOTTESMAN,
COHEN & PEER
1000 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20036
DEAR MR. PEER:
REFERENCE IS MADE TO YOUR MOTION FOR LEAVE TO FILE PETITION FOR
REVIEW OF THE ASSISTANT SECRETARY'S DECISION, FILED WITH THE COUNCIL IN
THE ABOVE-ENTITLED MATTER.
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR MOTION AND THE OPPOSITION
THERETO FILED BY THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, INC.,
AND HAS DIRECTED THAT YOUR MOTION BE DENIED BECAUSE, APART FROM OTHER
CONSIDERATIONS, OF THE UNTIMELINESS OF THE PETITION SOUGHT TO BE FILED.
FOR THE COUNCIL.
CC: W. J. USERY, JR.
G. P. RAMSEY
C. J. PETERS
J. D. HILL
J. L. NEUSTADT
I. I. GELLER
L. P. POULTON
1 FLRC 83; FLRC NO. 70A-7; APRIL 29, 1971.
AUDIT DIVISION (CODE DU)
NATIONAL AERONAUTICS AND
SPACE AGENCY
AND
LOCAL 2842, AMERICAN
FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
(SYNOPSIS) FLRC NO. 70A-7
NASA AUDIT DIVISION (CODE DU), ASSISTANT SECRETARY CASE NO.
46-1848(RO). THE MAJOR POLICY ISSUE WHICH THE COUNCIL PREVIOUSLY
ACCEPTED FOR REVIEW (REPORT NO. 1) WAS WHETHER THE ASSISTANT SECRETARY
HAS AUTHORITY TO REVIEW THAT PORTION OF THE NASA ADMINISTRATOR'S
DETERMINATION UNDER SECTION 3(B)(4) OF THE ORDER, WHICH FOUND THAT THE
AUDIT DIVISION UNIT REQUESTED BY AFGE "HAS AS A PRIMARY FUNCTION
INVESTIGATION OR AUDIT OF THE CONDUCT OR WORK OF OFFICIALS OR EMPLOYEES
OF THE AGENCY FOR THE PURPOSE OF ENSURING HONESTY AND INTEGRITY IN THE
DISCHARGE OF THEIR OFFICIAL DUTIES."
COUNCIL ACTION (APRIL 29, 1971). THE COUNCIL HELD THAT THE AGENCY
HEAD'S FINDINGS AS TO THE INTERNAL SECURITY FUNCTIONS OF THE
ORGANIZATIONAL GROUP INVOLVED ARE SUBJECT TO REVIEW BY THE ASSISTANT
SECRETARY TO DETERMINE WHETHER SUCH FINDINGS WERE ARBITRARY OR
CAPRICIOUS. THE ASSISTANT SECRETARY'S CONTRARY DECISION WAS SET ASIDE
AND THE CASE WAS REMANDED FOR APPROPRIATE ACTION CONSISTENT WITH THE
COUNCIL'S OPINION.
ON JUNE 22, 1970, THE UNION FILED A REPRESENTATION PETITION WITH THE
ASSISTANT SECRETARY, SEEKING A UNIT OF ALL NON-SUPERVISORY GS EMPLOYEES,
INCLUDING PROFESSIONALS, IN THE AUDIT DIVISION (CODE DU) OF NASA. ON
JULY 23, THE NASA ADMINISTRATOR DETERMINED THAT THE UNIT SOUGHT "FALLS
WITHIN THE MEANING OF" SECTION 3(B)(4) OF E.O. 11491 AND "THAT THE ORDER
CANNOT BE APPLIED (TO THE AUDIT DIVISION) IN A MANNER CONSISTENT WITH
THE INTERNAL SECURITY OF THE AGENCY." SECTION 3(B)(4) OF THE ORDER
PROVIDES:
SEC. 3. APPLICATION. . . .
(B) THIS ORDER (EXCEPT SECTION 22) DOES NOT APPLY TO . . .
(4) ANY OFFICE, BUREAU OR ENTITY WITHIN AN AGENCY WHICH HAS AS A
PRIMARY FUNCTION
INVESTIGATION OR AUDIT OF THE CONDUCT OR WORK OF OFFICIALS OR
EMPLOYEES OF THE AGENCY FOR THE
PURPOSE OF ENSURING HONESTY AND INTEGRITY IN THE DISCHARGE OF THEIR
OFFICIAL DUTIES, WHEN THE
HEAD OF OF THE AGENCY DETERMINES, IN HIS SOLE JUDGMENT, THAT THE
ORDER CANNOT BE APPLIED IN A
MANNER CONSISTENT WITH THE INTERNAL SECURITY OF THE AGENCY.
FOLLOWING THE NASA HEAD'S DETERMINATION, THE REGIONAL ADMINISTRATOR
OF THE ASSISTANT SECRETARY DISMISSED THE UNION'S PETITION, RULING THAT
THE AGENCY HEAD'S DETERMINATION RENDERED FURTHER PROCEEDINGS
UNWARRANTED. THE UNION APPEALED TO THE ASSISTANT SECRETARY AND, ON
NOVEMBER 2, 1970, THE ASSISTANT SECRETARY UPHELD THE ACTION OF THE
REGIONAL ADMINISTRATOR, ON THE GROUNDS THAT, UNDER THE LANGUAGE OF
SECTION 3(B)(4), THE DETERMINATION TO EXCLUDE ORGANIZATIONAL SEGMENTS
FROM COVERAGE FOR INTERNAL SECURITY REASONS RESTS IN THE SOLE JUDGMENT
OF THE AGENCY HEAD AND "IS NOT SUBJECT TO REVIEW BY THE ASSISTANT
SECRETARY;" AND THEREFORE THAT "AN INVESTIGATION INTO THE MERITS OF THE
NASA ADMINISTRATOR'S DETERMINATION . . . DOES NOT APPEAR TO BE
APPROPRIATE."
THE UNION PETITIONED THE COUNCIL FOR REVIEW OF THE ASSISTANT
SECRETARY'S DECISION. THE COUNCIL, ON JANUARY 4, 1971, ACCEPTED THE
APPEAL, LIMITED TO THE FOLLOWING MAJOR POLICY ISSUE: WHETHER THE
ASSISTANT SECRETARY HAS AUTHORITY TO REVIEW THAT PORTION OF THE NASA
ADMINISTRATOR'S DETERMINATION UNDER SECTION 3(B)(4) WHICH FOUND THAT THE
AUDIT DIVISION "HAS AS A PRIMARY FUNCTION INVESTIGATION OR AUDIT OF THE
CONDUCT OR WORK OF OFFICIALS OR EMPLOYEES OF THE AGENCY FOR THE PURPOSE
OF ENSURING HONESTY AND INTEGRITY IN THE DISCHARGE OF THEIR OFFICIAL
DUTIES."
BRIEFS WERE TIMELY FILED BY THE UNION AND BY NASA. THE DEPARTMENT OF
THE TREASURY WAS ALSO PERMITTED TO FILE A BRIEF AS AMICUS CURIAE.
THE UNION ARGUES, WITH RESPECT TO THE ISSUE UNDER REVIEW, THAT
SECTION 3(B)(4) WAS INTENDED TO EXCLUDE ONLY THOSE EMPLOYEES PRIMARILY
INVOLVED IN THE INVESTIGATION OR AUDIT OF THEIR FELLOW EMPLOYEES TO
INSURE THEIR HONESTY AND INTEGRITY IN DISCHARGING THEIR DUTIES; THAT,
IF AN AGENCY HEAD WERE PERMITTED TO DETERMINE SUCH PRIMARY FUNCTIONS AND
THEREBY TO EXCLUDE EMPLOYEES FROM COLLECTIVE BARGAINING ARBITRARILY AND
WITHOUT REVIEW, SERIOUS CONSTITUTIONAL QUESTIONS WOULD ARISE; AND THAT
SUCH QUESTIONS WOULD BE AVERTED AND THE PURPOSES OF THE ORDER SERVED BY
THE CONDUCT OF AN APPROPRIATE HEARING AND REVIEW BY THE ASSISTANT
SECRETARY.
NASA CONTENDS, HOWEVER, THAT THE ASSISTANT SECRETARY IS WITHOUT
AUTHORITY TO REVIEW A DETERMINATION BY AN AGENCY HEAD UNDER SECTION
3(B)(4) OF THE ORDER, BECAUSE THAT SECTION EXPRESSLY PROVIDES FOR THE
EXCLUSION OF CERTAIN SEGMENTS OF AN AGENCY FROM COVERAGE WHEN THE AGENCY
HEAD MAKES A SOLE JUDGMENT DETERMINATION, AND THE BASIS FOR SUCH
DETERMINATION CANNOT BE SEPARATED FROM THE DETERMINATION ITSELF. NASA
FURTHER ARGUES THAT REVIEW OF THE BASIS OF THE AGENCY HEAD'S
DETERMINATION WOULD UNDERMINE THE INTERNAL SECURITY OF THE AGENCY AND
WOULD CONFLICT WITH THE SPECIFIC PURPOSES OF SECTION 3(B)(4) OF THE
ORDER. FINALLY, NASA ASSERTS THAT THE DETERMINATION BY ITS
ADMINISTRATOR IN THIS CASE WAS GROUNDED ON A CAREFUL INVESTIGATION AND
EVALUATION OF THE AUDIT DIVISION'S FUNCTIONS IN RELATION TO THE INTERNAL
SECURITY OF THE AGENCY.
TREASURY LIKEWISE CONTENDS THAT THE ACTION OF AN AGENCY HEAD UNDER
SECTION 3(B)(4) IS NOT REVIEWABLE, RELYING PRINCIPALLY ON THE HISTORICAL
DEVELOPMENT OF APPLICABLE SECTIONS OF THE ORDER.
THE ISSUE IN THIS CASE RAISES A QUESTION OF MAJOR SIGNIFICANCE TO
EFFECTIVE LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE, NAMELY:
DOES AN AGENCY HEAD HAVE AUTHORITY UNDER SECTION 3(B)(4) TO EXCEPT ANY
OFFICE, BUREAU OR ENTITY WITHIN HIS AGENCY FROM THE OPERATION OF THE
ORDER, FOR "INTERNAL SECURITY" REASONS, WITHOUT ANY THIRD-PARTY REVIEW
OF THE FUNCTIONS ACTUALLY PERFORMED BY THE ORGANIZATIONAL GROUP
INVOLVED. THE ASSISTANT SECRETARY DECIDED THAT THE LANGUAGE OF SECTION
3(B)(4) PRECLUDED ANY SUCH THIRD-PARTY REVIEW. HOWEVER, FOR THE REASONS
INDICATED BELOW, WE DISAGREE WITH THAT DECISION.
IT IS READILY APPARENT THAT SECTION 3(B)(4) ESTABLISHES TWO
CONDITIONS FOR THE EXCLUSION OF A SEGMENT OF AN AGENCY FROM COVERAGE OF
THE ORDER FOR INTERNAL SECURITY REASONS. THE FIRST CONDITION IS WHOLLY
FACTUAL: THE ORGANIZATIONAL GROUP MUST HAVE "AS A PRIMARY FUNCTION
INVESTIGATION OR AUDIT OF THE CONDUCT OR WORK OF OFFICIALS OR EMPLOYEES
OF THE AGENCY FOR THE PURPOSE OF ENSURING HONESTY AND INTEGRITY IN THE
DISCHARGE OF THEIR OFFICIAL DUTIES." THE SECOND REQUIREMENT IS
DISCRETIONARY IN NATURE: "WHEN THE HEAD OF THE AGENCY DETERMINES, IN
HIS SOLE JUDGMENT, THAT THE ORDER CANNOT BE APPLIED IN A MANNER
CONSISTENT WITH THE INTERNAL SECURITY OF THE AGENCY." WHILE THE EXERCISE
OF DISCRETION BY THE AGENCY HEAD IS EXCEPTED FROM REVIEW BY THE EXPRESS
TERMS OF SECTION 3(B)(4), THE LANGUAGE OF THAT SECTION IS SILENT AS TO
WHETHER THE FINDINGS OF FACT BY THE AGENCY HEAD, UPON WHICH HE
PREDICATED HIS DETERMINATION, ARE LIKEWISE UNREVIEWABLE.
THE HISTORY OF SECTION 3(B)(4) PROVIDES NO SPECIFIC GUIDANCE ON THIS
QUESTION. OFFICES, BUREAUS OR ENTITIES ENGAGED IN INTERNAL SECURITY
FUNCTIONS HAD BEEN COVERED WITHOUT QUALIFICATION UNDER THE PROVISIONS OF
E.O. 10988 WHICH PRECEDED E.O. 11491. THE REPORT ACCOMPANYING E.O.
11491 DOES NOT DETAIL OR CLARIFY EITHER THE REASONS, CRITERIA OR METHODS
FOR EXCLUDING SUCH GROUPS UNDER SECTION 3(B)(4) OF THE ORDER.
(LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1969) PP. 17-43).
NOR WAS THIS PERMISSIVE EXEMPTION ADVERTED TO IN ANY PRIOR REPORT OR
ISSUANCE INDICATIVE OF THE INTENT OF THAT SECTION.
NEVERTHELESS, THE BASIC PURPOSES AND PROCEDURES ESTABLISHED IN E.O.
11491 MAKE EVIDENT THAT THIRD-PARTY REVIEW WAS INTENDED UNDER SECTION
3(B)(4), AT LEAST TO PREVENT ARBITRARY OR CAPRICIOUS FINDINGS BY AN
AGENCY HEAD AS TO THE INTERNAL SECURITY FUNCTIONS OF THE GROUP
CONCERNED.
E.O. 11491 WAS CLEARLY DESIGNED TO FACILITATE MORE EFFECTIVE
COLLECTIVE BARGAINING AND TO IMPROVE THE ENTIRE SYSTEM OF LABOR
RELATIONS IN THE FEDERAL SERVICE (ID, PP. 17-22). TO THESE ENDS,
THIRD-PARTY PROCESSES WERE ADOPTED FOR THE FIRST TIME TO CONSIDER AND
RESOLVE CONTROVERSIES BETWEEN THE PARTIES OVER MATTERS SUBJECT TO THE
ORDER. WITH PARTICULAR REFERENCE TO REPRESENTATION DISPUTES, AS HERE
INVOLVED, THE ASSISTANT SECRETARY WAS DELEGATED THE INITIAL
RESPONSIBILITY TO PASS UPON SUCH CONTROVERSIES, AND THE REPORT
ACCOMPANYING E.O. 11491 EXPLAINED IN THIS REGARD (ID, AT P. 37):
ACCORDINGLY, WE RECOMMEND THAT THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS
BE ASSIGNED RESPONSIBILITY FOR THE HANDLING OF COMPLAINTS CONCERNING
UNFAIR LABOR PRACTICES ON
THE PART OF EITHER LABOR ORGANIZATIONS OR AGENCY REPRESENTATIVES AND
ALLEGED VIOLATIONS OF THE
STANDARDS OF CONDUCT FOR LABOR ORGANIZATIONS, AND FOR THE SUPERVISION
OF REPRESENTATION
ELECTIONS, IN ADDITION TO HIS PRESENT RESPONSIBILITY (THROUGH THE USE
OF ADVISORY ARBITRATION)
FOR UNIT AND REPRESENTATION DISPUTES. THE ASSISTANT SECRETARY SHOULD
BE AUTHORIZED TO ISSUE
DECISIONS TO AGENCIES AND LABOR ORGANIZATIONS IN ALL CASES, SUBJECT
TO A LIMITED RIGHT OF
APPEAL ON MAJOR POLICY ISSUES BY EITHER PARTY TO THE FEDERAL LABOR
RELATIONS COUNCIL, AND TO
REFER CASES INVOLVING MAJOR POLICY QUESTIONS TO THE COUNCIL FOR
DECISION OR GENERAL RULING.
THE ASSIGNMENT OF RESPONSIBILITY FOR THE RESOLUTION OF ADMINISTRATIVE
DISPUTES IN THIS
MANNER WILL BENEFIT BOTH AGENCIES AND UNIONS AND BRING IMPARTIALITY,
ORDER, AND CONSISTENCY TO
THE PROCESS. AS DECISIONS ARE ISSUED, A BODY OF PRECEDENT WILL BE
DEVELOPED ON WHICH
INTERESTED PARTIES CAN DRAW FOR GUIDANCE IN AVOIDING ATTITUDES OR
PRACTICES THAT ENGENDER
CONFLICT IN THE LABOR-MANAGEMENT RELATIONSHIP.
THE EXCLUSION OF A SEGMENT OF AN AGENCY FROM THE OPERATION OF THE
ORDER OBVIOUSLY LIMITS EFFECTIVE COLLECTIVE BARGAINING WITHIN THE
AGENCY, AND DEPRIVES THE EMPLOYEES CONCERNED OF THE OPPORTUNITY TO
PARTICIPATE IN THE FORMULATION AND IMPLEMENTATION OF PERSONNEL POLICIES
AND PRACTICES, SOUGHT TO BE EXTENDED BY E.O. 11491. ALTHOUGH THE NEED
FOR SUCH AN EXCLUSION IS RECOGNIZED UNDER THE LIMITED CONDITIONS
PRESCRIBED IN SECTION 3(B)(4), THAT SECTION WAS PLAINLY NOT INTENDED TO
EMPOWER AN AGENCY HEAD, UNDER THE GUISE OF "INTERNAL SECURITY" FINDINGS,
TO EXCLUDE ANY OFFICE, BUREAU OR ENTITY OF HIS AGENCY FROM THE IMPACT OF
THE ORDER. ANY SUCH INTERPRETATION WOULD ENABLE AN AGENCY HEAD,
ARBITRARILY OR CAPRICIOUSLY, TO DEFEAT THE UNDERLYING PURPOSES OF THE
ORDER.
AS ALREADY MENTIONED, THE ORDER ASSIGNS TO THE ASSISTANT SECRETARY
THE INITIAL RESPONSIBILITY TO RESOLVE CONTROVERSIES OVER REPRESENTATION
MATTERS. IN OUR OPINION, IT IS IMPLICIT, UNDER SECTION 3(B)(4), THAT A
DISPUTE OVER THE FINDINGS BY AN AGENCY HEAD THAT A UNIT SOUGHT TO BE
REPRESENTED BY A UNION HAS A "PRIMARY FUNCTION" RELATED TO INTERNAL
SECURITY IS SUBJECT TO REVIEW BY THE ASSISTANT SECRETARY, AS PROVIDED IN
THE ORDER, TO DETERMINE WHETHER SUCH FINDINGS WERE ARBITRARY OR
CAPRICIOUS. THE BURDEN OF PROOF BEFORE THE ASSISTANT SECRETARY IS, OF
COURSE, ON THE UNION WHICH CLAIMS THAT THE ACTION OF THE AGENCY HEAD WAS
ARBITRARY OR CAPRICIOUS. FURTHERMORE, THE DECISION OF THE ASSISTANT
SECRETARY IS SUBJECT TO APPEAL TO THE COUNCIL AS PROVIDED IN THE
COUNCIL'S RULES OF PROCEDURE. (35 FED.REG. 15065).
CONTRARY TO THE CONTENTIONS OF NASA, SUCH THIRD-PARTY REVIEW NEED NOT
ENDANGER THE INTERNAL SECURITY OF THE AGENCY. FOR THE ASSISTANT
SECRETARY IS REQUIRED, LIKE THE COURTS IN NUMEROUS CASES INVOLVING
RELATED MATTERS OF PRIVILEGE, TO ADOPT ALL NECESSARY SAFEGUARDS IN EACH
CASE TO PREVENT ANY POSSIBLE DISCLOSURE OF SENSITIVE INFORMATION TO
UNAUTHORIZED PERSONS. (SEE, E.G., 8 WIGMORE, EVIDENCE 2378, 2379, PP.
792-817 (MCNAUGHTON REV. 1961); 4 MOORE'S FEDERAL PRACTICE PAR. 26.61,
PP. 26-313 TO 26-332 (2D ED. 1970)).
FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2411.18(D) OF THE
COUNCIL'S RULES OF PROCEDURE, WE FIND THAT THE DECISION OF THE ASSISTANT
SECRETARY IN THE RESENT CASE IS INCONSISTENT WITH THE PURPOSES OF THE
ORDER AND MUST BE SET ASIDE. THE CASE IS ACCORDINGLY REMANDED TO THE
ASSISTANT SECRETARY FOR APPROPRIATE ACTION CONSISTENT WITH THIS DECISION
OF THE COUNCIL.
BY THE COUNCIL.
ISSUED: APRIL 29, 1971.
1 FLRC 78; FLRC NO. 70A-5; APRIL 29, 1971.
AFGE LOCAL 2197
AND
ROCKY MOUNTAIN ARSENAL,
DENVER, COLORADO
(SYNOPSIS) FLRC NO. 70A-5
AFGE LOCAL 2197 AND ROCKY MOUNTAIN ARSENAL, DENVER, COLO. THE
NEGOTIABILITY DISPUTE PREVIOUSLY ACCEPTED FOR REVIEW BY THE COUNCIL IN
THIS CASE (REPORT NO. 1) CONCERNED THE VALIDITY OF AN ARMY MATERIEL
COMMAND DIRECTIVE WHICH PROVIDED FOR THE SCHEDULING OF AT LEAST 30 HOURS
OF ACTUAL WORK FOR FIREFIGHTERS WHO SERVE A NORMAL 72-HOUR WORKWEEK
(THREE 24-HOUR SHIFTS PER WEEK), INCLUDING STANDBY TIME, AND RECEIVE
PREMIUM COMPENSATION AT A 20 PERCENT ANNUAL RATE.
COUNCIL ACTION (APRIL 29, 1971). THE COUNCIL HELD, IN ACCORD WITH
THE AGENCY'S DETERMINATION AND CONTRARY TO THE UNION'S CONTENTIONS, THAT
THE AMC DIRECTIVE WAS NOT VIOLATIVE OF CIVIL SERVICE COMMISSION
REGULATIONS OR STATUTORY REQUIREMENTS.
DURING NEGOTIATIONS CONCERNING THE HORUS OF WORK OF FIREFIGHTERS, A
DISPUTE AROSE OVER THE SCHEDULING OF ACTUAL WORK FOR FIREFIGHTERS WHO
SERVE A NORMAL 72-HOUR WORKWEEK (THREE 24-HOUR SHIFTS PER WEEK),
INCLUDING STANDBY TIME, AND RECEIVE PREMIUM COMPENSATION AT A 20 PERCENT
ANNUAL RATE. THE UNION PROPOSED THE SCHEDULING OF 24 HOURS OF ACTUAL
WORK FOR SUCH EMPLOYEES AND CLAIMED THAT AN ARMY MATERIEL COMMAND
DIRECTIVE PROVIDING FOR THE SCHEDULING OF AT LEAST 30 HOURS OF ACTUAL
WORK IS INVALID UNDER CIVIL SERVICE COMMISSION AND STATUTORY
REQUIREMENTS. THE PERTINENT PORTION OF THE DIRECTIVE (AMC DIRECTIVE NO.
420-5, PAR. 4(A)(1), DATED AUGUST 15, 1962) READS AS FOLLOWS: "A FIRE
PREVENTION AND PROTECTION WORKLOAD DETERMINATION, WORK GUIDES AND ANNUAL
WORKLOAD SCHEDULE WILL BE PREPARED . . . . IN DETERMINING THE AVAILABLE
PRODUCTIVE MANHOURS, AT LEAST THIRTY (30) HOURS OF THE NORMAL
SEVENTY-TWO (72) HOUR WORKWEEK WILL BE SCHEDULED FOR EACH MAN AT
GOVERNMENT-OPERATED INSTALLATIONS. . . ."
THE DISPUTE WAS REFERRED BY THE UNION TO THE DEPARTMENT OF THE ARMY,
WHICH DETERMINED THAT THE SUBJECT AMC DIRECTIVE IS VALID WITH RESPECT TO
THE WORK REQUIREMENTS FOR FIREFIGHTERS AT THE ROCKY MOUNTAIN ARSENAL.
THE UNION APPEALED TO THE COUNCIL FROM THIS DETERMINATION, AND THE
COUNCIL ACCEPTED THE PETITION FOR REVIEW UNDER SECTION 11(C)(4) OF THE
ORDER.
THE UNION TAKES THE POSITION, IN SUBSTANCE, THAT THE AMC DIRECTIVE
VIOLATES SECTIONS 550.141 AND 550.144(A)(1) OF CSC REGULATIONS, WHICH
REQUIRE A MINIMUM OF ONLY 24 HOURS OF ACTUAL WORK FOR THE 20 PERCENT
ANNUAL PREMIUM COMPENSATION PAID TO THE FIREFIGHTERS. THE UNION ALSO
CONTENDS THAT THE DIRECTIVE, BY THE 30-HOUR ACTUAL WORK REQUIREMENT
DISCRIMINATES AGAINST THE FIREFIGHTERS IN THE AGENCY AND FORCES SUCH
EMPLOYEES TO WORK AT LEAST 6 HOURS PER WEEK WITHOUT COMPENSATION, IN
VIOLATION OF THE PROSCRIBED ACCEPTANCE OF "VOLUNTARY SERVICE FOR THE
UNITED STATES" IN 31 U.S.C. 665(B).
THE AGENCY ASSERTS, HOWEVER, THAT THE AMC DIRECTIVE IS CONSISTENT
WITH CSC REGULATIONS SINCE THE REGULATIONS AUTHORIZE A 20 PERCENT ANNUAL
RATE OF PREMIUM PAY WHEN "24 OR MORE HOURS OF ACTUAL WORK IS CUSTOMARILY
REQUIRED." IT FURTHER ARGUES THAT THE SCHEDULING OF 30 HOURS OF ACTUAL
WORK IS DEEMED NECESSARY TO ACCOMPLISH THE AGENCY MISSION AND DOES NOT
RESULT IN THE FIREMEN WORKING 6 HOURS WITHOUT COMPENSATION, BECAUSE THE
24-HOUR PROVISION IN CSC REGULATIONS IS A MINIMUM AND NOT A MAXIMUM, AND
THE PREMIUM SERVES AS PAYMENT FOR MORE THAN JUST THE 24-HOUR PERIOD.
THE ISSUE IN THE PRESENT CASE IS WHETHER THE AMC DIRECTIVE WHICH
PROVIDES FOR THE SCHEDULING OF 30 HOURS OF ACTUAL WORK FOR FIREFIGHTERS
WHO SERVE ON A 72-HOUR TOUR OF DUTY, INCLUDING STANDBY TIME, AND RECEIVE
PREMIUM COMPENSATION AT A 20 PERCENT ANNUAL RATE, IS VIOLATIVE OF EITHER
CSC REGULATIONS OR STATUTORY REQUIREMENTS.
AS TO THE CSC REGULATIONS, SECTIONS 550.141-550.144 OF THOSE
REGULATIONS, WHICH IMPLEMENT 5 U.S.C. 5545(C)(1) ON THE PAYMENT OF
PREMIUM COMPENSATION ON AN ANNUAL BASIS TO SUCH EMPLOYEES, PROVIDE IN
RELEVANT PART AS FOLLOWS:
SEC. 550.141 AUTHORIZATION OF PREMIUM PAY ON AN ANNUAL BASIS. AN
AGENCY MAY PAY PREMIUM PAY
ON AN ANNUAL BASIS . . . TO AN EMPLOYEE IN A POSITION REQUIRING HIM
REGULARLY TO REMAIN AT, OR
WITHIN THE CONFINES OF, HIS STATION DURING LONGER THAN ORDINARY
PERIODS OF DUTY, A SUBSTANTIAL
PART OF WHICH CONSISTS OF REMAINING IN A STANDBY STATUS RATHER THAN
PERFORMING WORK . . . .
SEC. 550.143 BASES FOR DETERMINING POSITIONS FOR WHICH PREMIUM PAY
UNDER SECTION 550.141 IS
AUTHORIZED . . . (D) THE WORDS A SUBSTANTIAL PART OF WHICH CONSISTS
OF REMAINING IN A STANDBY
STATUS RATHER THAN PERFORMING WORK IN SECTION 550.141 REFER TO THE
ENTIRE TOUR OF DUTY. THIS
REQUIREMENT IS MET: . . . (2) IF CERTAIN HOURS OF THE TOUR OF DUTY
ARE REGULARLY DEVOTED TO
ACTUAL WORK AND OTHERS ARE SPENT IN A STANDBY STATUS, THAT PART OF
THE TOUR OF DUTY DEVOTED TO
STANDING BY IS AT LEAST 25 PERCENT OF THE ENTIRE TOUR OF DUTY; . .
.
SEC. 550.144 RATES OF PREMIUM PAY PAYABLE UNDER SECTION 550.141. (A)
AN AGENCY MAY PAY THE
PREMIUM PAY ON AN ANNUAL BASIS REFERRED TO IN SECTION 550.141, TO AN
EMPLOYEE WHO MEETS THE
REQUIREMENTS OF THAT SECTION, AT ONE OF THE FOLLOWING PERCENTAGES OF
THAT PART OF THE
EMPLOYEE'S RATE OF BASIC PAY WHICH DOES NOT EXCEED THE MINIMUM RATE
OF BASIC PAY FOR
GS-10: (1) A POSITION WITH A TOUR OF DUTY OF THE 24 HOURS ON DUTY,
24 HOURS OFF DUTY TYPE AND
WITH A SCHEDULE OF: . . . 72 HOURS A WEEK-- 15 PERCENT, UNLESS 24 OR
MORE HOURS OF ACTUAL
WORK IS CUSTOMARILY REQUIRED, IN WHICH EVENT-- 20 PERCENT . . . .
AS ALREADY MENTIONED, THE AMC DIRECTIVE REQUIRES THE SCHEDULING OF AT
LEAST 30 HOURS OF ACTUAL WORK IN THE NORMAL 72-HOUR TOUR AND THE UNION
CLAIMS SUCH DIRECTIVE VIOLATES THE 24-HOUR PROVISION IN THE CSC
REGULATIONS. SINCE THE CIVIL SERVICE COMMISSION HAS THE PRIMARY
RESPONSIBILITY FOR THE ISSUANCE AND INTERPRETATION OF ITS OWN
REGULATIONS, THE COUNCIL REQUESTED THE COMMISSION FOR AN INTERPRETATION
OF ITS REGULATIONS AS THEY PERTAIN TO THE QUESTION RAISED IN THE PRESENT
CASE. THE COMMISSION RESPONDED AS FOLLOWS:
AS WE UNDERSTAND THE PROBLEM, THE ONLY QUESTION FOR OUR CONSIDERATION
IS WHETHER THE
COMMISSION'S REGULATIONS PROHIBIT SCHEDULING MORE THAN 24 HOURS OF
ACTUAL WORK IN A 72 HOUR
WORKWEEK WHICH INCLUDES STANDBY DUTY, FOR WHICH THE EMPLOYEE IS PAID
AN ANNUAL RATE OF PREMIUM
PAY UNDER 5 U.S.C. 5545(C)(1). THE ANSWER IS THE REGULATIONS DO NOT
PROHIBIT SUCH A SCHEDULE,
AS LONG AS THAT PART OF THE TOUR OF DUTY DEVOTED TO STANDING BY IS AT
LEAST 25 PERCENT OF THE
ENTIRE TOUR OF DUTY (SEE SECTION 550.143(D)(2) OF THE COMMISSION'S
REGULATIONS).
IN THIS CONNECTION, YOUR ATTENTION IS DIRECTED TO THE DECISION OF THE
COURT OF CLAIMS IN
BEAN V. U.S., 175 F.SUPP. 166, (CT. CL. 1959). THE FACTS IN THIS
CASE INVOLVED FEDERAL
FIREFIGHTERS WHOSE TOUR OF DUTY PRIOR TO NOVEMBER 1, 1954, HAD BEEN
60 HOURS A WEEK, DURING
WHICH 40 HOURS OF ACTUAL WORK WAS CUSTOMARILY PERFORMED; PRIOR TO
NOVEMBER 1, 1954, THE
EMPLOYEES WERE PAID UNDER THE SO-CALLED "TWO-THIRDS" RULE. ON
NOVEMBER 1, 1954, THE AGENCY
ELECTED TO PAY THESE EMPLOYEES PREMIUM PAY ON AN ANNUAL BASIS FOR
STANDBY DUTY UNDER AUTHORITY
OF SECTION 208(A) OF THE ACT OF SEPTEMBER 1, 1954 (68 STAT. 1109),
WHICH IS NOW 5
U.S.C. 5545(C)(1); ALSO ON NOVEMBER 1, 1954, THE AGENCY EXTENDED THE
TOUR OF DUTY TO 72 HOURS
A WEEK. THE COURT RULED THAT THE EMPLOYEES WERE NOT ENTITLED TO AN
INCREASE IN PAY ALTHOUGH
THE TOUR OF DUTY HAD BEEN INCREASED, 'IT IS TRUE THAT THEY ARE ON
DUTY MORE HOURS PER WEEK
THAN THEY WERE PRIOR TO THE PASSAGE OF THE 1954 ACT, BUT THE HEAD OF
THE DEPARTMENT WAS GIVEN
AUTHORITY UNDER SECTION 208(A) TO FIX THE TOUR OF DUTY . . . ' (175
F.SUPP. 169).
THE UNION DOES NOT ALLEGE, NOR DOES IT APPEAR, THAT LESS THAN 25
PERCENT OF THE ENTIRE TOUR OF DUTY OF THE FIREFIGHTERS IS DEVOTED TO
STANDING BY. ACCORDINGLY, BASED ON THE ABOVE INTERPRETATION BY THE
CIVIL SERVICE COMMISSION, WE FIND THAT THE SUBJECT AMC DIRECTIVE IS
CONSISTENT WITH THE CSC REGULATIONS.
WE TURN NEXT TO THE UNION'S CONTENTION THAT THE AMC DIRECTIVE IS
INVALID UNDER 31 U.S.C. 665(B), WHICH PROVIDES: "NO OFFICER OR EMPLOYEE
OF THE UNITED STATES SHALL ACCEPT VOLUNTARY SERVICE FOR THE UNITED
STATES OR EMPLOY PERSONAL SERVICE IN EXCESS OF THAT AUTHORIZED BY LAW,
EXCEPT IN CASES OF EMERGENCY INVOLVING THE SAFETY OF HUMAN LIFE OR THE
PROTECTION OF PROPERTY." THIS CONTENTION IS CLEARLY WITHOUT MERIT.
APART FROM OTHER CONSIDERATIONS, THE AMC DIRECTIVE SCHEDULES WORK
REQUIREMENTS FOR THE FIREFIGHTERS AND MAKES NO PROVISION FOR THE
ACCEPTANCE OF ANY "VOLUNTARY SERVICES" FROM SUCH EMPLOYEES. MOREOVER,
IT HAS LONG BEEN ESTABLISHED THAT THIS SECTION OF THE CODE HAS NO
APPLICATION TO THE PERFORMANCE OF ADDITIONAL SERVICE BY A GOVERNMENT
EMPLOYEE WITHOUT ADDED COMPENSATION, BUT REFERS TO VOLUNTARY SERVICES
RENDERED BY PRIVATE PERSONS WITHOUT AUTHORITY OF LAW. 30 OP.ATTY.GEN.
129, 131 (1913); 39 OP.ATTY.GEN. 51 (1913); CF. LEE V. U.S. 45 CT.
CL. 57, 62 (1910). WE FIND, THEREFORE, THAT THE SUBJECT AMC DIRECTIVE
IS NOT IN VIOLATION OF 31 U.S.C. 665(B).
FOR THE FOREGOING REASONS, WE HOLD THAT THE DETERMINATION BY THE
AGENCY AS TO THE VALIDITY OF THE AMC DIRECTIVE HERE INVOLVED WAS PROPER
AND, PURSUANT TO SECTION 2411.18(D) OF THE COUNCIL'S RULES OF PROCEDURE,
THE DETERMINATION IS HEREBY SUSTAINED.
BY THE COUNCIL.
ISSUED: APRIL 29, 1971.
1 FLRC 76; FLRC NO. 71A-7; APRIL 23, 1971.
MR. NATHAN T. WOLKOMIR
PRESIDENT, NATIONAL FEDERATION
OF FEDERAL EMPLOYEES
1737 H STREET, N.W.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 71A-7
UNITED STATES ARMY CORPS OF ENGINEERS, MOBILE DISTRICT, A/SLMR NO.
7. IN A REPRESENTATION CASE FILED BY AFGE, THE ASSISTANT SECRETARY
FOUND APPROPRIATE A UNIT OF ALL POWERHOUSE EMPLOYEES AT THE MILLERS
FERRY POWERHOUSE, CAMDEN, ALA. NFFE APPEALED FROM THIS DECISION ON
GROUNDS RELATING TO CONTRACT BAR, APPROPRIATENESS OF UNIT, AND RIGHT TO
PARTICIPATE IN THE ELECTION. HOWEVER, THE APPEAL DID NOT ESTABLISH THAT
THE ASSISTANT SECRETARY'S DECISION WAS EITHER ARBITRARY AND CAPRICIOUS,
OR PRESENTED ANY MAJOR POLICY ISSUE.
COUNCIL ACTION (APRIL 23, 1971). THE COUNCIL DENIED REVIEW BECAUSE
NFFE'S APPEAL FAILED TO MEET THE REQUIREMENTS FOR REVIEW UNDER SECTION
2411.12(C) OF THE COUNCIL'S RULES OF PROCEDURE.
DEAR MR. WOLKOMIR:
REFERENCE IS MADE TO YOUR APPEAL TO THE COUNCIL FOR REVIEW OF THE
DECISION OF THE ASSISTANT SECRETARY IN THE ABOVE-CAPTIONED CASE.
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION AND HAS DETERMINED
THAT YOUR APPEAL FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED
UNDER SECTION 2411.12(C) OF THE COUNCIL'S RULES OF PROCEDURE.
ACCORDINGLY, THE COUNCIL HAS DIRECTED THAT REVIEW OF YOUR APPEAL BE
DENIED.
FOR THE COUNCIL.
CC: A. S. BREWER
DEPARTMENT OF THE ARMY
JAMES RICE
NFFE, LOCAL 561
AFGE, AFL-CIO LOCAL 2257
W. J. USERY
DEPARTMENT OF LABOR
1 FLRC 71; FLRC NO. 70A-10; APRIL 15, 1971.
AFGE LOCAL 2595
AND
IMMIGRATION AND NATURALIZATION
SERVICE, U.S. BORDER PATROL,
YUMA SECTOR (YUMA, ARIZONA)
(SYNOPSIS) FLRC NO. 70A-10
AFGE LOCAL 2595 AND IMMIGRATION AND NATURALIZATION SERVICE. U.S.
BORDER PATROL, YUMA SECTOR (YUMA, ARIZONA). THE NEGOTIABILITY DISPUTE
INVOLVED THE LEGALITY OF THE UNION'S PROPOSED MAINTENANCE OF "DRAG
ROADS" (USED BY THE BORDER PATROL AS A SURVEILLANCE DEVICE), SO AS TO
INCREASE THE HEALTH AND SAFETY OF THE BORDER PATROL OFFICERS.
COUNCIL ACTION (APRIL 15, 1971). THE COUNCIL HELD THAT THE PROPOSAL
IS NEGOTIABLE AS AN APPROPRIATE MATTER "AFFECTING WORKING CONDITIONS"
UNDER SECTION 11(A) OF THE ORDER, AND, CONTRARY TO THE DETERMINATION OF
THE DEPARTMENT OF JUSTICE, IS NOT VIOLATIVE OF SECTIONS 11(B) OR
12(B)(1), (4) OR (5) OF THE ORDER
DURING BARGAINING ON A SUPPLEMENTAL AGREEMENT, THE UNION SUBMITTED
THE FOLLOWING PROPOSAL ON THE MAINTENANCE OF "DRAG ROADS" BY THE BORDER
PATROL:
DRAG ROADS WILL BE MAINTAINED ON A REGULAR BASIS AND IN SUCH A MANNER
SO THAT THEY ARE
REASONABLY SMOOTH AND FREE OF RUTS, POTHOLES AND WASHOUTS AND ANY
OTHER ROUGHNESS OR
IRREGULARITY WHICH MAY BE CAUSED BY USAGE, WEATHER OR OTHER
CONTRIBUTING CAUSE OR
ELEMENT. THEY WILL ALSO BE MAINTAINED IN SUCH A MANNER SO THAT THEY
BE FREE OF EXCESSIVE DUST
AND OTHER PARTICLES THAT MAY BECOME AIRBORNE DUE TO PASSAGE OF A
VEHICLE. PROPERLY MAINTAINED
DRAG ROADS WILL REDUCE THE CHANCE OF INJURY TO THE OFFICER,
PARTICULARLY TO THE BACK AND
KIDNEYS, WILL REDUCE THE INCIDENCE OF HEMORRHOIDS, AND WILL ALLEVIATE
THE SUFFERING OF THOSE
WITH HAY FEVER, SINUS AND ALLERGY PROBLEMS. REGULAR MAINTENANCE OF
THESE ROADS WILL REDUCE
THE CHANCE OF DAMAGE TO THE VEHICLE.
THE "DRAG ROADS" WHICH ARE THE SUBJECT OF THIS PROPOSAL ARE A MEANS O
SURVEILLANCE USED TO DETECT THE TRACKS OF PERSONS ILLEGALLY ENTERING THE
UNITED STATES IN THE BARREN SOUTHWEST BORDER AREAS. THEY CONSIST OF
PATHS OR STRIPS CREATED AND MAINTAINED BY DRAGGING "ROUGHING" AND
"SMOOTHING" DEVICES BEHIND A SLOWLY MOVING VEHICLE, TO RENDER A SMOOTH
SURFACE OF DUST ON WHICH TO DETECT FOOTPRINTS LEFT BY AN ILLEGAL
ENTRANT. SOMETIMES THREE OR FOUR SUCH ROADS MAY LIE PARALLEL TO ONE
ANOTHER AND A SHORT DISTANCE APART. THE ROADS ARE DRAGGED AS OFTEN AS
NECESSARY, DEPENDING ON ENVIRONMENTAL CONDITIONS, TO KEEP THE SURFACE
FUNCTIONAL FOR DETECTION PURPOSES.
THE BORDER PATROL ASSERTED THAT THE MAINTENANCE OF DRAG ROADS AS
PROPOSED BY THE UNION WAS NON-NEGOTIABLE AND, UPON REFERRAL, THE
DEPARTMENT OF JUSTICE UPHELD THIS POSITION, DETERMINING THAT THE
PROPOSAL (1) WOULD REQUIRE BARGAINING ON THE TECHNOLOGY OF PERFORMING
THE WORK OF THE BORDER PATROL, IN CONFLICT WITH SECTION 11(B) OF THE
ORDER; AND (2) WOULD INFRINGE ON THE AGENCY'S RIGHT TO DIRECT EMPLOYEES
AND DETERMINE THE METHODS AND MEANS BY WHICH ITS OPERATIONS WILL BE
EFFICIENTLY ACCOMPLISHED, IN VIOLATION OF SECTION 12(B)(1), (4) AND (5)
OF THE ORDER. THE UNION PETITIONED THE COUNCIL FOR REVIEW OF THIS
DETERMINATION AND THE COUNCIL ACCEPTED THE APPEAL UNDER SECTION 11(C)(4)
OF THE ORDER.
THE UNION ARGUES THAT SECTION 11(A) OF THE ORDER SANCTIONS
NEGOTIATIONS WITH RESPECT TO "MATTERS AFFECTING WORKING CONDITIONS";
THAT THE HEALTH AND SAFETY ASPECTS OF MAINTAINING DRAG ROADS FALL WITHIN
SUCH SCOPE OF BARGAINING; AND THAT THE PROPOSAL DOES NOT VIOLATE EITHER
SECTION 11(B) OR 12(B), SINCE THE UNION "IS ONLY ASKING THAT WHEN THE
BORDER PATROL DECIDES TO USE DRAG ROADS TO ACCOMPLISH ITS MISSION, THEY
WILL BE MAINTAINED IN A MANNER CONDUCIVE TO EMPLOYEE HEALTH AND SAFETY".
THE AGENCY CONTENDS, HOWEVER, THAT IS IS NOT REQUIRED TO BARGAIN ON
"THE TECHNOLOGY OF PERFORMING ITS WORK" UNDER SECTION 11(B) OF THE
ORDER; THAT DRAG ROADS ARE PART OF THE TECHNOLOGY OF PERFORMING BORDER
PATROL WORK; AND THAT SINCE THE PROPOSAL WOULD PRESCRIBE THE FREQUENCY
OF OFFICER ASSIGNMENT AND THE STANDARDS OF ACCOMPLISHMENT FOR THIS
ACTIVITY, THE PROPOSAL IS NOT NEGOTIABLE. THE AGENCY FURTHER CLAIMS
THAT THE PROPOSAL IS NON-NEGOTIABLE BECAUSE IT WOULD REQUIRE THE
MAINTENANCE OF DRAG ROADS ON A REGULAR BASIS AND TO SPECIFIC STANDARDS,
AND WOULD REQUIRE THE REGULAR ASSIGNMENT OF PERSONNEL TO CARRY OUT SUCH
FUNCTIONS, IN VIOLATION OF MANAGEMENT'S RIGHT TO DETERMINE THE "METHODS
AND MEANS" BY WHICH ITS OPERATIONS WILL BE EFFICIENTLY ACCOMPLISHED, AND
ITS RIGHT TO "DIRECT" ITS PERSONNEL, UNDER SECTION 12(B)(1), (4) AND (5)
OF THE ORDER.
THE QUESTION BEFORE US IS WHETHER THE UNION'S PROPOSAL AS TO THE
MAINTENANCE OF DRAG ROADS IS A MATTER "AFFECTING WORKING CONDITIONS"
WHICH IS BARGAINABLE UNDER SECTION 11(A) OF THE ORDER, OR FALLS OUTSIDE
THE SCOPE OF SUCH NEGOTIATIONS UNDER THE PROVISIONS OF SECTIONS 11(B)
AND 12(B)(1), (4) AND (5) OF THE ORDER.
SECTION 11(A) OF THE ORDER, WHICH RELATES TO THE NEGOTIATION OF
AGREEMENTS BETWEEN AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF ITS
EMPLOYEES, PROVIDES THAT THE PARTIES SHALL MEET AND CONFER IN GOOD FAITH
REGARDING "MATTERS AFFECTING WORKING CONDITIONS, SO FAR AS MAY BE
APPROPRIATE UNDER . . . THIS ORDER". SECTION 11(B) EXCEPTS FROM THE
AGENCY'S OBLIGATION TO MEET AND CONFER "MATTERS WITH RESPECT TO . . .
THE TECHNOLOGY OF PERFORMING ITS WORK". FURTHER, SECTION 12(B)
ESTABLISHES RIGHTS EXPRESSLY RESERVED TO MANAGEMENT OFFICIALS UNDER ANY
BARGAINING AGREEMENT, INCLUDING THE RIGHT "(1) TO DIRECT EMPLOYEES OF
THE AGENCY; . . . (4) TO MAINTAIN THE EFFICIENCY OF THE GOVERNMENT
OPERATIONS ENTRUSTED TO THEM; (AND) (5) TO DETERMINE THE METHODS,
MEANS, AND PERSONNEL BY WHICH SUCH OPERATIONS ARE TO BE CONDUCTED."
TURNING TO THE PROPOSAL SUBMITTED BY THE UNION IN THE PRESENT CASE,
THIS PROPOSAL, BY ITS TERMS, WAS INTENDED SOLELY TO "REDUCE THE CHANCE
OF INJURY TO THE OFFICER, PARTICULARLY TO THE BACK AND KIDNEYS," AND TO
ACCOMPLISH OTHER STATED HEALTH AND SAFETY PURPOSES. TO ACHIEVE THESE
GOALS, THE PROPOSAL WOULD REQUIRE THE "REGULAR" MAINTENANCE OF THE DRAG
ROADS BY THE AGENCY, SO THAT THEY ARE IN A "REASONABLY" LEVEL CONDITION
AND SO THAT THEY ARE FREE OF "EXCESSIVE" DUST AND OTHER AIRBORNE
PARTICLES. /1/
CONTRARY TO THE AGENCY'S CONTENTIONS, SUCH PROVISIONS DO NOT REQUIRE
BARGAINING ON THE "TECHNOLOGY" OF DRAG ROADS WHICH REQUIRES A SMOOTH
SURFACE OF DUST IN ORDER TO DETECT THE FOOTPRINTS OF ILLEGAL ENTRANTS.
RATHER, THE PROPOSAL WOULD MERELY REQUIRE THAT THIS "TECHNOLOGY," AS
ADOPTED BY THE AGENCY, BE IMPLEMENTED IN A MANNER CONSISTENT WITH THE
HEALTH AND SAFETY OF THE BORDER PATROL OFFICERS. NOR DOES THE AGENCY
ASSERT THAT REGULAR MAINTENANCE OF DRAG ROADS, IN REASONABLY LEVEL
CONDITION AND FREE OF EXCESSIVE DUST, WOULD ADVERSELY AFFECT THE USE OF
SUCH ROADS AS THE SURVEILLANCE DEVICE FOR WHICH THEY ARE CONSTRUCTED.
ACCORDINGLY, THE PROPOSAL IS PLAINLY NOT EXCEPTED FROM BARGAINING AS A
MATTER OF "TECHNOLOGY" UNDER SECTION 11(B) OF THE ORDER.
LIKEWISE, THE UNION'S PROPOSAL SPECIFIES ONLY WHAT HEALTH AND SAFETY
STANDARDS SHALL BE OPERATIVE, I.E. "REGULAR" MAINTENANCE OF THE DRAG
ROADS, SO THAT THEY ARE "REASONABLY" LEVEL AND FREE OF "EXCESSIVE"
AIRBORNE PARTICLES. THIS PROPOSAL DOES NOT SPECIFY IN ANY MANNER HOW
THESE STANDARDS ARE TO BE ACHIEVED BY THE AGENCY AND, THEREFORE, DOES
NOT CONFLICT WITH THE AGENCY'S RIGHT TO ORDER ITS EMPLOYEES AND TO
DETERMINE THE METHODS AND MEANS BY WHICH ITS OPERATIONS ARE TO BE
CONDUCTED, AS RESERVED TO MANAGEMENT UNDER SECTION 12(B)(1) AND (5) OF
THE ORDER. FINALLY, THE PROPOSAL SEEKS ONLY TO IMPROVE THE HEALTH AND
SAFETY OF THE BORDER PATROL OFFICERS, AND, CONTRARY TO THE POSITION OF
THE AGENCY, SUCH OBJECTIVE, IF ACCOMPLISHED, WOULD CONTRIBUTE TO, AND
NOT CONFLICT WITH, THE MANAGEMENT RIGHT TO MAINTAIN THE EFFICIENCY OF
ITS OPERATIONS UNDER SECTION 12(B)(4) OF THE ORDER.
FOR THE FOREGOING REASONS, WE ARE OF THE OPINION THAT THE UNION'S
PROPOSAL IS CLEARLY NEGOTIABLE AS AN APPROPRIATE MATTER "AFFECTING
WORKING CONDITIONS" UNDER SECTION 11(A) OF THE ORDER. WE DO NOT HOLD,
OF COURSE, THAT SUCH PROPOSAL IN ITS PRESENT FORM IS EITHER NECESSARY,
DESIRABLE OR EVEN FEASIBLE. NOR DO WE HOLD THAT THIS PROPOSAL, OR ANY
MODIFICATION THEREOF, MUST BE ACCEPTED BY THE AGENCY. WE DECIDE SIMPLY
THAT THE PROPOSAL AS SUBMITTED BY THE UNION IS PROPERLY SUBJECT TO
NEGOTIATION BY THE PARTIES CONCERNED.
ACCORDINGLY, PURSUANT TO SECTION 2411.18(D) OF THE COUNCIL'S RULES OF
PROCEDURE, WE FIND THAT THE DETERMINATION BY THE DEPARTMENT OF JUSTICE
THAT THE UNION'S PROPOSAL WOULD VIOLATE SECTIONS 11(B) AND 12(B)(1), (4)
AND (5) OF THE ORDER IS IMPROPER, AND THE DETERMINATION MUST BE SET
ASIDE.
BY THE COUNCIL.
ISSUED: APRIL 15, 1971
/1/ ANALOGOUS PROVISIONS WERE CONTAINED IN AGREEMENTS IN OTHER
AGENCIES NEGOTIATED UNDER E.O. 10988, WHICH PRECEDED THE PRESENT ORDER,
PARTICULARLY WHERE HAZARDOUS OCCUPATIONS WERE INVOLVED. (U.S.
DEPARTMENT OF LABOR, SAFETY CLAUSES IN COLLECTIVE BARGAINING AGREEMENTS
IN THE FEDERAL SERVICE, 1-10, 13(1970)
1 FLRC 69; FLRC NO. 71A-1; MARCH 11, 1971.
MR. PATRICK E. ZEMBOWER
ASSISTANT DIRECTOR
ECONOMIC AND GENERAL WELFARE DEPARTMENT
FEDERAL REPRESENTATIVE
AMERICAN NURSES' ASSOCIATION, INC.
1030 15TH STREET, N.W.
WASHINGTON, D.C. 20005
(SYNOPSIS) FLRC NO. 71A-1
VETERANS ADMINISTRATION HOSPITAL, DURHAM, NORTH CAROLINA, ASSISTANT
SECRETARY CASE NO. 40-1945. NORTH CAROLINA STATE NURSES' ASSOCIATION
FILED AN OBJECTION TO AN ELECTION WON BY AFGE, BASED ON ALLEGED
PREFERENTIAL ACCESS TO BULLETIN BOARDS. THE ASSISTANT SECRETARY UPHELD
DISMISSAL OF THE OBJECTION, FINDING NO CONDUCT BY THE AGENCY WHICH
WARRANTED SETTING ASIDE THE ELECTION. NCSNA APPEALED TO THE COUNCIL,
DISAGREEING WITH THE DECISION BY THE ASSISTANT SECRETARY, BUT NEITHER
ASSERTING NOR ESTABLISHING THAT SUCH DECISION WAS ARBITRARY OR
CAPRICIOUS, OR THAT IT PRESENTED ANY MAJOR POLICY ISSUE.
COUNCIL ACTION (MARCH 11, 1971). THE COUNCIL DENIED REVIEW ON THE
GROUNDS THAT THE UNION'S APPEAL FAILED TO MEET THE REQUIREMENTS FOR
REVIEW UNDER SECTION 2411.12(C) OF THE COUNCIL'S RULES.
DEAR MR. ZEMBOWER:
REFERENCE IS MADE TO YOUR APPEAL TO THE COUNCIL FOR REVIEW OF THE
DECISION OF THE ASSISTANT SECRETARY IN THE ABOVE-CAPTIONED CASE.
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION, AND THE
OPPOSITION THERETO FILED BY THE VETERANS ADMINISTRATION, AND HAS
DETERMINED THAT YOUR APPEAL FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS
PROVIDED UNDER SECTION 2411.12(C) OF THE COUNCIL'S RULES OF PROCEDURE.
ACCORDINGLY, THE COUNCIL HAS DIRECTED THAT REVIEW OF YOUR APPEAL BE
DENIED.
FOR THE COUNCIL.
CC: J. J. CORCORAN
VA
H. A. BARRIER
AFGE
C. PERRY
AFGE LOCAL 2345
W. J. USERY, JR.
DEPT. OF LABOR
1 FLRC 65; FLRC NO. 70A-11; MARCH 9, 1971.
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS
AND
US KIRK ARMY HOSPITAL,
ABERDEEN, MD.
(SYNOPSIS) FLRC NO. 70A-11
IAM AND KIRK ARMY HOSPITAL, ABERDEEN, MD. THE NEGOTIABILITY ISSUE IN
THIS CASE INVOLVED A UNION PROPOSAL THAT ANY DISPUTE OR COMPLAINT BY THE
UNION REGARDING THE "INTERPRETATION OR APPLICATION" OF THE AGREEMENT,
"OR ANY POLICY, REGULATION, OR PRACTICE NOW OR HEREINAFTER ENFORCED
WHEREIN THE EMPLOYER HAS DISCRETION," WOULD BE SUBJECT TO A DISPUTES
PROCEDURE, INCLUDING ARBITRATION AS THE TERMINAL STEP.
COUNCIL ACTION (MARCH 9, 1971). THE COUNCIL HELD THAT THE
ARBITRATION OF UNION DISPUTES OVER THE "INTERPRETATION OR APPLICATION"
OF "ANY POLICY, REGULATION, OR PRACTICE" WITHIN THE EMPLOYER'S
DISCRETION, AS PROPOSED BY THE UNION, IS VIOLATIVE OF SECTIONS 13 AND 14
OF E.O. 11491 AND IS NOT NEGOTIABLE.
DURING THE COURSE OF BARGAINING, THE UNION SUBMITTED A PROPOSAL THAT
THE "UNION SHALL HAVE THE RIGHT AND SHALL DISCUSS WITH THE EMPLOYER ANY
DISPUTE OR COMPLAINT CONCERNING THE INTERPRETATION OR APPLICATION OF
THIS AGREEMENT, OR ANY POLICY, REGULATION, OR PRACTICE NOW OR
HEREINAFTER ENFORCED WHEREIN THE EMPLOYER HAS DISCRETION," WITH ANY SUCH
DISPUTE OR COMPLAINT SUBJECT TO A TWO-STEP APPEAL PROCEDURE AND BINDING
ARBITRATION. THE HOSPITAL CLAIMED THAT THE PROPOSAL WAS NON-NEGOTIABLE.
UPON REFERRAL, THE DEPARTMENT OF THE ARMY CONCURRED IN THE HOSPITAL'S
POSITION, DETERMINING THAT THE PROPOSAL, INSOFAR AS IT WOULD APPLY THE
BINDING ARBITRATION PROCEDURES TO A UNION DISPUTE OR COMPLAINT OVER "ANY
POLICY, REGULATION, OR PRACTICE NOW OR HEREINAFTER ENFORCED WHEREIN THE
EMPLOYER HAS DISCRETION," VIOLATED SECTIONS 13 AND 14 OF THE ORDER. THE
UNION APPEALED TO THE COUNCIL, AND THE COUNCIL ACCEPTED THE PETITION FOR
REVIEW OF THIS ISSUE UNDER SECTION 11(C)(4) OF THE ORDER. (REVIEW OF A
SEPARATE NEGOTIABILITY ISSUE WAS DENIED BY THE COUNCIL AS MOOT.)
THE UNION ASSERTS THAT ITS PROPOSAL IS CONSISTENT WITH THE ORDER,
ESSENTIALLY BECAUSE: (1) THE PROPOSAL, IF APPLIED TO EMPLOYEE
GRIEVANCES, WOULD BE NEGOTIABLE, AND UNION DISPUTES AND EMPLOYEE
GRIEVANCES SHOULD BE CONSIDERED ALIKE UNDER THE ORDER; (2) THE PROPOSAL
DOES NOT SEEK ARBITRATION OF CHANGES OR PROPOSED CHANGES IN THE
AGREEMENT OR AGENCY POLICY, WHICH IS ALONE PROHIBITED IN SECTION 14;
AND (3) SIMILAR PROVISIONS HAVE BEEN INCLUDED IN CONTRACTS COVERING
OTHER DEPARTMENT OF DEFENSE UNITS.
THE AGENCY CONTENDS, HOWEVER, THAT THE ORDER CAREFULLY LIMITS THE
ARBITRATION OF UNION DISPUTES TO CONTROVERSIES INVOLVING THE
INTERPRETATION OR APPLICATION OF AN EXISTING AGREEMENT, AND THAT THE
UNION'S PROPOSAL EXTENDS BEYOND THESE LIMITS AND IS THEREFORE
NON-NEGOTIABLE. FURTHERMORE, ACCORDING TO THE AGENCY, THE PROVISIONS IN
OTHER AGREEMENTS RELIED UPON BY THE UNION, WHICH "SLIPPED PAST" THE
MANAGEMENT REVIEW PROCESS, ARE NOT DISPOSITIVE AS TO NEGOTIABILITY UNDER
THE ORDER.
THE QUESTION FOR DECISION IS WHETHER, UNDER SECTIONS 13 AND 14 OF THE
ORDER, BINDING ARBITRATION PROCEDURES MAY BE APPLIED TO A UNION DISPUTE
OR COMPLAINT OVER NOT ONLY THE "INTERPRETATION OR APPLICATION" OF AN
AGREEMENT, BUT ALSO OF "ANY POLICY, REGULATION, OR PRACTICE" WITHIN THE
DISCRETION OF MANAGEMENT.
SECTIONS 13 AND 14 PROVIDE IN RELEVANT PART AS FOLLOWS:
SEC. 13. GRIEVANCE PROCEDURES. AN AGREEMENT WITH A LABOR
ORGANIZATION WHICH IS THE EXCLUSIVE
REPRESENTATIVE OF EMPLOYEES IN AN APPROPRIATE UNIT MAY PROVIDE
PROCEDURES, APPLICABLE ONLY TO
EMPLOYEES IN THE UNIT, FOR THE CONSIDERATION OF EMPLOYEE GRIEVANCES
AND OF DISPUTES OVER THE
INTERPRETATION AND APPLICATION OF AGREEMENTS. THE PROCEDURE FOR
CONSIDERATION OF EMPLOYEE
GRIEVANCES SHALL MEET THE REQUIREMENTS FOR NEGOTIATED GRIEVANCE
PROCEDURES ESTABLISHED BY THE
CIVIL SERVICE COMMISSION. A NEGOTIATED EMPLOYEE GRIEVANCE PROCEDURE
WHICH CONFORMS TO THIS
SECTION, TO APPLICABLE LAWS, AND TO REGULATIONS OF THE CIVIL SERVICE
COMMISSION AND THE AGENCY
IS THE EXCLUSIVE PROCEDURE AVAILABLE TO EMPLOYEES IN THE UNIT WHEN
THE AGREEMENT SO PROVIDES.
SEC. 14. ARBITRATION OF GRIEVANCES. (A) NEGOTIATED PROCEDURES MAY
PROVIDE FOR THE
ARBITRATION OF EMPLOYEE GRIEVANCES AND OF DISPUTES OVER THE
INTERPRETATION OR APPLICATION OF
EXISTING AGREEMENTS. NEGOTIATED PROCEDURES MAY NOT EXTEND
ARBITRATION TO CHANGES OR PROPOSED
CHANGES IN AGREEMENTS OR AGENCY POLICY. SUCH PROCEDURES SHALL
PROVIDE FOR THE INVOKING OF
ARBITRATION ONLY WITH THE APPROVAL OF THE LABOR ORGANIZATION THAT HAS
EXCLUSIVE RECOGNITION
AND, IN THE CASE OF AN EMPLOYEE GRIEVANCE, ONLY WITH THE APPROVAL OF
THE EMPLOYEE. THE COSTS
OF THE ARBITRATOR SHALL BE SHARED EQUALLY BY THE PARTIES . . . .
A READING OF THESE PROVISIONS CLEARLY ESTABLISHES THAT TWO SEPARATE
AND DISTINCT TYPES OF CONTROVERSIES MAY BE SUBJECT TO BINDING
ARBITRATION PROCEDURES, NAMELY (1) "EMPLOYEE GRIEVANCES," AND (2)
"DISPUTES OVER THE INTERPRETATION OR APPLICATION OF EXISTING
AGREEMENTS." ARBITRATION OF THE FIRST TYPE OF CONTROVERSY, I.E.
EMPLOYEE GRIEVANCES, MAY BE INVOKED ONLY WITH THE APPROVAL OF THE UNION
AND THE EMPLOYEE, WHILE ARBITRATION OF THE SECOND TYPE OF CONTROVERSY,
COMMONLY REFERRED TO AS "UNION DISPUTES," NEEDS ONLY THE APPROVAL OF THE
UNION ITSELF. ALSO EMPLOYEE GRIEVANCES, AS DISTINGUISHED FROM UNION
DISPUTES, MUST SPECIFICALLY COMPLY WITH THE REQUIREMENTS FOR NEGOTIATED
PROCEDURES PRESCRIBED BY THE CIVIL SERVICE COMMISSION.
APART FROM THE LITERAL WORDING OF SECTIONS 13 AND 14, THE BACKGROUND
OF THESE PROVISIONS SHOWS THAT THE ARBITRATION OF UNION DISPUTES WAS
INTENDED TO BE CONSIDERED IN A MANNER SEPARATE FROM THE ARBITRATION OF
EMPLOYEE GRIEVANCES. UNDER SECTION 8(B) OF E.O. 10988, WHICH PRECEDED
E.O. 11491, NEGOTIATED PROCEDURES WERE SANCTIONED ONLY FOR THE ADVISORY
ARBITRATION OF INDIVIDUAL EMPLOYEE GRIEVANCES. IN REVIEWING THE NEED
FOR CHANGES IN THESE PROVISIONS, THE REPORT ACCOMPANYING E.O. 11491
OBSERVED THAT "CURRENT PROPOSALS WOULD PERMIT THE PARTIES TO AN
AGREEMENT TO INCLUDE ARBITRATION PROCEDURES FOR THE RESOLUTION OF
DISPUTES OVER THE INTERPRETATION AND APPLICATION OF THE AGREEMENT AS
WELL AS FOR THE RESOLUTION OF EMPLOYEE GRIEVANCES" (EMPHASIS SUPPLIED);
AND THE REPORT RECOMMENDED THE ADOPTION OF SUCH DISPUTES PROCEDURE,
STATING: "ARBITRATION SHOULD BE MADE AVAILABLE FOR THE RESOLUTION OF
DISPUTES OVER THE INTERPRETATION AND APPLICATION OF AN AGREEMENT"
(LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1969). PP. 20,
41-42). THIS RECOMMENDATION, AS SO LIMITED, WAS ADOPTED IN THE FINAL
ORDER AND WAS EXPLAINED IN THE REPORT AS FOLLOWS (P. 53):
AGREEMENTS MAY CONTAIN EMPLOYEE GRIEVANCE PROCEDURES WHICH MEET CSC
REQUIREMENTS, MAY MAKE
THEM THE ONLY GRIEVANCE PROCEDURES AVAILABLE TO EMPLOYEES IN THE
UNIT, AND MAY PROVIDE FOR
ARBITRATION (WITH UNION AND EMPLOYEE CONSENT AND COST-SHARING BY
UNION AND
AGENCY). AGREEMENTS MAY ALSO CONTAIN PROCEDURES FOR CONSIDERATION OF
DISPUTES OVER
INTERPRETATION AND APPLICATION OF AGREEMENT, INCLUDING ARBITRATION OF
SUCH DISPUTES WITH
CONSENT OF THE UNION (COST-SHARING BY UNION AND AGENCY) . . . .
IT IS PLAIN FROM THE FOREGOING, THAT UNION DISPUTES WERE DESIGNED AND
REGARDED AS DISTINCT FROM EMPLOYEE GRIEVANCES FOR ARBITRATION PURPOSES,
UNDER SECTIONS 13 AND 14, AND, SINCE THE PROPOSAL INVOLVED IN THIS CASE
CONCERNS THE ARBITRATION OF A UNION DISPUTE OR COMPLAINT, RATHER THAN AN
EMPLOYEE GRIEVANCE, IT MUST MEET THE SPECIAL REQUIREMENTS FOR THE
ARBITRATION OF SUCH DISPUTES.
AS ALREADY INDICATED, THE ARBITRATION OF UNION DISPUTES IS EXPRESSLY
CONFINED UNDER SECTIONS 13 AND 14 TO DISPUTES OVER THE INTERPRETATION OR
APPLICATION OF AN EXISTING AGREEMENT. WHILE SECTION 14 ALSO PROHIBITS
THE EXTENSION OF ARBITRATION "TO CHANGES OR PROPOSED CHANGES IN
AGREEMENTS OR AGENCY POLICY," THESE PROVISIONS SIMPLY ESTABLISH A
FURTHER CONDITION TO ANY ARBITRATION WHICH MAY BE NEGOTIATED, WHETHER OF
EMPLOYEE GRIEVANCES OR UNION DISPUTES. OBVIOUSLY NOTHING IN THAT
SPECIFIC PROHIBITION PRESUMES TO ENLARGE THE SCOPE OF UNION DISPUTES
WHICH MAY BE SUBJECT TO ARBITRATION, I.E. "DISPUTES OVER THE
INTERPRETATION OR APPLICATION OF EXISTING AGREEMENTS."
IN OUR OPINION, IT IS CLEAR, THEREFORE, THAT THE ARBITRATION OF UNION
DISPUTES OVER THE "INTERPRETATION OR APPLICATION" OF "ANY POLICY,
REGULATION, OR PRACTICE" WITHIN THE EMPLOYER'S DISCRETION, AS HERE
PROPOSED BY THE UNION, IS VIOLATIVE OF SECTIONS 13 AND 14 OF THE ORDER
AND IS NOT NEGOTIABLE. ALTHOUGH OTHER CONTRACTS MAY HAVE INCLUDED SUCH
PROVISIONS, AS CLAIMED BY THE UNION, THIS CIRCUMSTANCE CANNOT ALTER THE
EXPRESS LANGUAGE AND INTENT OF THE ORDER AND IS WITHOUT CONTROLLING
SIGNIFICANCE IN THIS CASE.
ACCORDINGLY, BASED UPON THE FOREGOING AND UPON CAREFUL CONSIDERATION
OF THE ENTIRE RECORD, WE FIND THAT THE AGENCY'S DETERMINATION AS TO THE
NON-NEGOTIABILITY OF THE UNION'S PROPOSAL WAS PROPER AND, PURSUANT TO
SECTION 2411.18(D) OF THE COUNCIL'S RULES OF PROCEDURE, THE
DETERMINATION IS SUSTAINED.
BY THE COUNCIL.
ISSUED: MARCH 9, 1971
1 FLRC 61; FLRC NO. 70A-9; MARCH 9, 1971.
IAM LOCAL LODGE 2424
AND
ABERDEEN PROVING GROUND
ABERDEEN, MARYLAND
(SYNOPSIS) FLRC NO. 70A-9
IAM LOCAL LODGE 2424 AND ABERDEEN PROVING GROUND, ABERDEEN, MD. THE
NEGOTIABILITY DISPUTE CONCERNED THE LEGALITY OF UNION PROPOSAL DEFINING
THE TERMS "APPROPRIATE AUTHORITIES" AND "AGENCY," AS USED IN SECTION
12(A) OF E.O. 11491, IN A MANNER WHICH WOULD SUBJECT THE AGREEMENT TO
THE POLICIES AND REGULATIONS OF DEPARTMENT OF DEFENSE HEADQUARTERS BUT
NOT THOSE OF ITS COMPONENTS AND SUBORDINATE COMMANDS. (SECTION 12(A)
PROVIDES THAT, IN THE ADMINISTRATION OF AN AGREEMENT, "OFFICIALS AND
EMPLOYEES ARE GOVERNED BY EXISTING OR FUTURE LAWS AND THE REGULATIONS OF
APPROPRIATE AUTHORITIES . . . ; BY PUBLISHED AGENCY POLICIES AND
REGULATIONS IN EXISTENCE AT THE TIME THE AGREEMENT WAS APPROVED; AND BY
SUBSEQUENTLY PUBLISHED AGENCY POLICIES AND REGULATIONS REQUIRED BY LAW
OR BY THE REGULATIONS OF APPROPRIATE AUTHORITIES, OR AUTHORIZED BY THE
TERMS OF A CONTROLLING AGREEMENT AT A HIGHER AGENCY LEVEL.")
COUNCIL ACTION (MARCH 9, 1971). THE COUNCIL HELD THAT THE TERM
"APPROPRIATE AUTHORITIES" IN SECTION 12(A) WAS INTENDED TO MEAN THOSE
AUTHORITIES OUTSIDE THE AGENCY CONCERNED WHICH ARE EMPOWERED TO ISSUE
REGULATIONS AND POLICIES BINDING ON SUCH AGENCY; AND THAT THE TERM
"AGENCY" AS USED IN SECTION 12(A) WAS INTENDED TO INCLUDE BOTH DOD
ITSELF AND ITS COGNIZANT SUBORDINATE ECHELONS. ACCORDINGLY, THE COUNCIL
RULED THAT THE UNION'S PROPOSAL WAS VIOLATIVE OF SECTION 12(A) OF THE
ORDER AND WAS NON-NEGOTIABLE.
DURING NEGOTIATIONS BETWEEN THE PARTIES, A DISPUTE AROSE OVER THE
UNION'S PROPOSAL AS TO THE MEANING OF THE TERMS "APPROPRIATE
AUTHORITIES" AND "AGENCY" AS USED IN SECTION 12(A) OF E.O. 11491. THAT
SECTION PROVIDES AS FOLLOWS:
SEC. 12 BASIC PROVISIONS OF AGREEMENTS. EACH AGREEMENT BETWEEN AN
AGENCY AND A LABOR
ORGANIZATION IS SUBJECT TO THE FOLLOWING REQUIREMENTS-- (A) IN THE
ADMINISTRATION OF ALL
MATTERS COVERED BY THE AGREEMENT, OFFICIALS AND EMPLOYEES ARE
GOVERNED BY EXISTING OR FUTURE
LAWS AND THE REGULATIONS OF APPROPRIATE AUTHORITIES, INCLUDING
POLICIES SET FORTH IN THE
FEDERAL PERSONNEL MANUAL; BY PUBLISHED AGENCY POLICIES AND
REGULATIONS IN EXISTENCE AT THE
TIME THE AGREEMENT WAS APPROVED; AND BY SUBSEQUENTLY PUBLISHED
AGENCY POLICIES AND REGULATIONS
REQUIRED BY LAW OR BY THE REGULATIONS OF APPROPRIATE AUTHORITIES, OR
AUTHORIZED BY THE TERMS
OF A CONTROLLING AGREEMENT AT A HIGHER AGENCY LEVEL.
SECTION 12 CONCLUDES THAT THE "REQUIREMENTS OF THIS SECTION SHALL BE
EXPRESSLY STATED IN THE INITIAL OR BASIC AGREEMENT AND APPLY TO ALL
SUPPLEMENTAL . . . AGREEMENTS BETWEEN THE AGENCY AND THE ORGANIZATION."
THE UNION PROPOSED THAT IN ITS AGREEMENT WITH ABERDEEN PROVING GROUND
THE TERMS "APPROPRIATE AUTHORITIES" AND "AGENCY" BE SO DEFINED AS TO
RENDER THE ADMINISTRATION OF THE AGREEMENT SUBJECT TO THE POLICIES AND
REGULATIONS OF THE DEPARTMENT OF DEFENSE, BUT NOT THOSE OF ITS COGNIZANT
SUBORDINATE ECHELONS (IN THIS CASE, DEPARTMENT OF THE ARMY, ARMY
MATERIEL COMMAND, AND THE ARMY TEST AND EVALUATION COMMAND). THE
PROVING GROUND CONTESTED THE NEGOTIABILITY OF THIS PROPOSAL. UPON
REFERRAL, DOD DECIDED THAT THE UNION'S PROPOSAL WAS CONTRARY TO THE
MEANING OF THE ORDER AND DOD REGULATIONS, AND INTERPRETED SECTION 12(A)
AND ITS REGULATIONS AS SUBJECTING THE AGREEMENT TO THE POLICIES AND
REGULATIONS BOTH OF DOD HEADQUARTERS AND ITS COGNIZANT MANAGEMENT
ECHELONS. THE UNION APPEALED TO THE COUNCIL FROM THIS DETERMINATION AND
THE COUNCIL ACCEPTED THE PETITION FOR REVIEW UNDER SECTION 11(C)(4) OF
THE ORDER.
THE UNION ARGUES IN EFFECT THAT, SINCE AN "AGENCY" IS DEFINED IN
SECTION 2(A) OF THE ORDER AS AN "EXECUTIVE DEPARTMENT," AND SINCE ONLY
DOD, AND NOT ITS COMPONENTS, IS LISTED AS AN "EXECUTIVE DEPARTMENT" IN 5
U.S.C. 101, THE TERMS "APPROPRIATE AUTHORITIES" AND "AGENCY" WERE
INTENDED TO BIND THE AGREEMENT ONLY TO THE REGULATIONS AND POLICIES OF
DOD ITSELF.
DOD CONTENDS, HOWEVER, THAT, AS TO "APPROPRIATE AUTHORITIES," THE
TERM WHEN READ IN THE CONTEXT OF SECTION 12(A) MEANS AUTHORITIES OUTSIDE
THE AGENCY WHICH ESTABLISH POLICIES OR REGULATIONS BINDING ON THE AGENCY
INVOLVED. AS TO "AGENCY," DOD ARGUES THAT THE TERM MUST BE INTERPRETED
AS USED IN SECTION 12(A), I.E. "AGENCY POLICIES AND REGULATIONS," AND
THAT, BASED ON THE INTENT OF THE ORDER AND THE STATUTORY AUTHORITY OF
THE MILITARY DEPARTMENTS WITHIN DOD, THIS PROVISION MEANS THE POLICIES
AND REGULATIONS OF BOTH DOD AND ITS SUBORDINATE ECHELONS IN THE CHAIN OF
COMMAND.
THE COUNCIL, UPON CAREFUL CONSIDERATION OF THE POSITIONS OF THE
PARTIES AND THE ENTIRE RECORD IN THE CASE, IS OF THE OPINION THAT THE
UNION'S PROPOSED DEFINITIONS OF THE TERMS "APPROPRIATE AUTHORITIES" AND
"AGENCY," AS USED IN SECTION 12(A), TO INCLUDE DOD ITSELF BUT NOT ITS
SUBORDINATE MANAGEMENT LEVELS IS CONTRARY TO THE MEANING OF THE ORDER
AND IS NON-NEGOTIABLE.
TURNING FIRST TO THE TERM "APPROPRIATE AUTHORITIES," SECTION 12(A)
BINDS OFFICIALS AND EMPLOYEES IN THE ADMINISTRATION OF AN AGREEMENT TO
THE "REGULATIONS OF APPROPRIATE AUTHORITIES, INCLUDING POLICIES SET
FORTH IN THE FEDERAL PERSONNEL MANUAL," AND "PUBLISHED AGENCY POLICIES
AND REGULATIONS." IF THE AGENCY INVOLVED WERE INCLUDED WITHIN THE TERM
"APPROPRIATE AUTHORITIES," AS CLAIMED BY THE UNION, THE ADDED REFERENCES
TO "AGENCY POLICIES AND REGULATIONS" WOULD BE COMPLETELY REDUNDANT AND
WITHOUT PURPOSE. MOREOVER, THE REPORT ACCOMPANYING E.O. 11491
SPECIFICALLY INDICATED THAT THE REGULATIONS OF AN APPROPRIATE AUTHORITY
"OUTSIDE THE AGENCY" WERE CONTEMPLATED BY SECTION 12(A) OF THE ORDER
(LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1969), PP. 40, 52).
ACCORDINGLY, WE FIND THAT THE TERM "APPROPRIATE AUTHORITIES" IN SECTION
12(A) WAS INTENDED TO MEAN THOSE AUTHORITIES OUTSIDE THE AGENCY
CONCERNED, WHICH ARE EMPOWERED TO ISSUE REGULATIONS AND POLICIES BINDING
ON SUCH AGENCY.
AS TO THE TERM "AGENCY," SECTION 2(A) OF THE ORDER PROVIDES THAT
"'AGENCY' MEANS AN EXECUTIVE DEPARTMENT . . . ;" AND 5 U.S.C. 101 REFERS
TO DOD AS AN "EXECUTIVE DEPARTMENT," WHILE, UNDER 5 U.S.C. 102, DOD
COMPONENTS SUCH AS ARMY ARE CLASSIFIED AS "MILITARY DEPARTMENTS."
HOWEVER, CONTRARY TO THE UNION'S CONTENTION, THE SEPARATE DESIGNATION OF
COMPONENTS AS MILITARY DEPARTMENTS IN THE CODE DOES NOT MEAN THAT THEY
WERE INTENDED TO BE DIVORCED AS CONSTITUENT PARTS OF THEIR EXECUTIVE
DEPARTMENT (DOD) UNDER SECTION 2(A) OF THE ORDER. ANY SUCH
INTERPRETATION WOULD VIRTUALLY ELIMINATE THE COMPONENTS AND THEIR
SUBORDINATE COMMANDS FROM THE COVERAGE OF THE ENTIRE ORDER, AND SECTION
2(A) OBVIOUSLY DID NOT INTEND SO INCONGRUOUS A RESULT.
WITH PARTICULAR REFERENCE TO SECTION 12(A), THE PROPOSED DEFINITION
BY THE UNION OF THE TERM "AGENCY" TO INCLUDE ONLY DOD ITSELF WOULD
LIKEWISE CONFLICT WITH THE PURPOSES OF THAT SECTION AND WITH THE EXPRESS
STATUTORY AUTHORITY OF DOD COMPONENTS AND SUBORDINATE ECHELONS IN
PERSONNEL MATTERS. SECTION 12(A) WAS PLAINLY INTENDED TO ESTABLISH THE
LEGAL FRAMEWORK TO GOVERN THE ADMINISTRATION OF THE AGREEMENT, NAMELY,
THE LAWS, REGULATIONS AND POLICIES OF OUTSIDE AUTHORITIES, AND PUBLISHED
"AGENCY POLICIES AND REGULATIONS." NO DISTINCTION WAS MADE IN SECTION
12(A) BETWEEN THE LEVELS OF AN AGENCY WHICH MIGHT ISSUE SUCH BINDING
REGULATIONS AND POLICIES, AND, AS TO DOD, THE COMPONENTS AND SUBORDINATE
COMMANDS HAVE BROAD STATUTORY AUTHORITY IN THIS REGARD. FOR EXAMPLE,
UNDER 5 U.S.C. 301, THE HEAD OF A MILITARY DEPARTMENT IS AUTHORIZED TO
"PRESCRIBE REGULATIONS FOR THE GOVERNMENT OF HIS DEPARTMENT" AND FOR
"THE CONDUCT OF ITS EMPLOYEES." FURTHER, UNDER 5 U.S.C. 302(B)(1), THE
HEAD OF A MILITARY DEPARTMENT MAY DELEGATE TO SUBORDINATE OFFICIALS HIS
LAWFUL AUTHORITY "TO TAKE FINAL ACTION ON MATTERS PERTAINING TO THE
EMPLOYMENT, DIRECTION AND GENERAL ADMINISTRATION OF PERSONNEL UNDER HIS
AGENCY." CLEARLY, SECTION 12(A) WAS NOT INTENDED TO GIVE BINDING EFFECT
TO POLICIES AND REGULATIONS ISSUED BY DOD HEADQUARTERS AND YET TO
DISREGARD THOSE ISSUED UNDER EXPRESS STATUTORY AUTHORITY BY COMPONENTS
AND SUBORDINATE ECHELONS WITHIN THE SAME DEPARTMENT.
WE CONCLUDE, THEREFORE, APART FROM FURTHER CONSIDERATIONS, THAT THE
TERM "AGENCY" AS USED IN SECTION 12(A) WAS INTENDED TO INCLUDE BOTH DOD
ITSELF AND ITS COGNIZANT SUBORDINATE ECHELONS, AND THAT THE CONTRARY
PROPOSAL OF THE UNION IS VIOLATIVE OF THE ORDER.
FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2411.18(D) OF THE
COUNCIL'S RULES OF PROCEDURE, WE HOLD THAT THE DETERMINATION BY DOD AS
TO THE NON-NEGOTIABILITY OF THE UNION'S PROPOSAL IN THIS CASE WAS PROPER
AND MUST BE SUSTAINED.
BY THE COUNCIL.
ISSUED: MARCH 9, 1971
1 FLRC 59; FLRC NO. 70A-12; FEBRUARY 12, 1971.
MR. JOHN F. GRINER,
NATIONAL PRESIDENT
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
400 FIRST STREET, N.W.
WASHINGTON, D.C. 20001
(SYNOPSIS) FLRC NO. 70A-12
AFGE LOCAL 1923 AND SOCIAL SECURITY ADMINISTRATION, HEADQUARTERS
DIVISION AND PAYMENT CENTER, BALTIMORE, MD. THE DECISION OF THE AGENCY
HEAD ON THE NEGOTIABILITY ISSUE INVOLVED IN THIS CASE WAS RENDERED ON
APRIL 10, 1970, AND THE UNION DID NOT FILE ITS PETITION FOR REVIEW WITH
THE COUNCIL UNTIL DECEMBER 30, 1970. SECTION 2411.14(A) OF THE
COUNCIL'S RULES, PUBLISHED AND EFFECTIVE ON SEPTEMBER 29, 1970, PROVIDES
THAT AN APPEAL MUST BE FILED WITHIN 20 DAYS FROM THE DATE OF SERVICE OF
AN AGENCY HEAD'S DECISION AND, UNDER SECTION 2411.14(G), SUCH APPEAL
MUST BE RECEIVED IN THE COUNCIL'S OFFICE BEFORE THE CLOSE OF BUSINESS OF
THE LAST DAY OF THE PRESCRIBED TIME LIMIT. (WHILE SECTION 2411.14(D) OF
THE RULES PROVIDES FOR AN EXTENSION OF TIME LIMITS UNDER CERTAIN
CONDITIONS, NO REQUEST FOR SUCH AN EXTENSION WAS SUBMITTED HERE.)
MEASURING THE 20-DAY TIME LIMIT FROM THE PUBLICATION AND EFFECTIVE DATE
OF THE COUNCIL'S RULES, THE UNION'S PETITION IN THIS CASE WAS FILED MORE
THAN 70 DAYS AFTER THE LAST DAY ESTABLISHED FOR SUCH ACTION IN THE
RULES.
COUNCIL ACTION (FEBRUARY 12, 1971). AS THE UNION'S APPEAL WAS
UNTIMELY FILED, THE COUNCIL DENIED THE PETITION FOR REVIEW.
DEAR MR. GRINER:
REFERENCE IS MADE TO YOUR PETITION FOR REVIEW OF AN AGENCY HEAD'S
DECISION ON A NEGOTIABILITY ISSUE, FILED WITH THE COUNCIL IN THE
ABOVE-ENTITLED CASE.
UPON CAREFUL CONSIDERATION, THE COUNCIL HAS DETERMINED THAT YOUR
PETITION WAS UNTIMELY FILED UNDER THE COUNCIL'S RULES OF PROCEDURE AND
CANNOT BE ACCEPTED FOR REVIEW.
SECTION 2411.14(A) OF THE RULES, PUBLISHED AND EFFECTIVE ON SEPTEMBER
29, 1970, PROVIDES THAT AN APPEAL MUST BE FILED WITHIN 20 DAYS FROM THE
DATE OF SERVICE OF AN AGENCY HEAD'S DECISION, AND, UNDER SECTION
2411.14(G) SUCH APPEAL MUST BE RECEIVED IN THE COUNCIL'S OFFICE BEFORE
THE CLOSE OF BUSINESS OF THE LAST DAY OF THE PRESCRIBED TIME LIMIT.
(WHILE SECTION 2411.14(D) OF THE RULES PROVIDES FOR THE EXTENSION OF
TIME LIMITS UNDER CERTAIN CONDITIONS, NO REQUEST FOR AN EXTENSION WAS
SUBMITTED IN THIS CASE.) HERE, THE DECISION OF THE AGENCY HEAD WAS
RENDERED ON APRIL 10, 1970, AND YOUR APPEAL WAS NOT FILED UNTIL DECEMBER
30, 1970, MORE THAN EIGHT MONTHS AFTER THE AGENCY HEAD'S DECISION AND
THREE MONTHS AFTER THE PUBLICATION AND EFFECTIVE DATE OF THE COUNCIL'S
RULES. THEREFORE, MEASURING THE 20-DAY TIME LIMIT FROM THE PUBLICATION
AND EFFECTIVE DATE OF THE RULES, YOUR PETITION WAS FILED MORE THAN 70
DAYS AFTER THE LAST DAY ESTABLISHED BY THE COUNCIL FOR SUCH ACTION.
ACCORDINGLY, AS YOUR APPEAL WAS UNTIMELY FILED, THE COUNCIL HAS
DIRECTED THAT YOUR PETITION FOR REVIEW BE DENIED.
FOR THE COUNCIL.
CC: R. B. HACKER, HEW
1 FLRC 57; FLRC NO. 71A-5; FEBRUARY 25, 1971.
MR. IRVING I. GELLER, DIRECTOR
LEGAL & EMPLOYEE RELATIONS
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES
1737 H STREET, N.W.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 71A-5
DEPARTMENT OF THE ARMY, FORT LEAVENWORTH, KANSAS, ADVISORY ARBITRATOR
CASE NO. 284-ARMY 5TH-1, FORT LEAVENWORTH, KANSAS. ON JULY 30, 1970, AN
ARBITRATOR ISSUED AN ADVISORY DECISION ON A UNIT DISPUTE BETWEEN NFFE
AND AFGE, IN A PROCEEDING WHICH HAD BEEN INITIATED UNDER E.O. 10988. ON
JANUARY 20, 1971, NFFE APPEALED TO THE COUNCIL FROM THE ARBITRATOR'S
DETERMINATION, ASSERTING THAT, WHILE THE DECISION WAS MADE BY A PRIVATE
ARBITRATOR UNDER E.O. 10988, THE DECISION SUPPOSEDLY FOLLOWED E.O. 11491
RULES AS IF RENDERED BY THE ASSISTANT SECRETARY AND, THEREFORE, THE
APPEAL SHOULD BE TREATED AS A PETITION FOR REVIEW OF AN ASSISTANT
SECRETARY DECISION UNDER SECTION 2411.12(C) OF THE COUNCIL'S RULES.
HOWEVER, NO APPEAL WAS TAKEN FROM ANY ACTUAL DECISION RENDERED BY THE
ASSISTANT SECRETARY ON THE UNIT DISPUTE IN ANY PROCEEDING CONDUCTED
UNDER E.O. 11491.
COUNCIL ACTION (FEBRUARY 25, 1971). WITHOUT PASSING ON THE
TIMELINESS OF THE PETITION, THE COUNCIL DENIED REVIEW BECAUSE NO BASIS
FOR ACCEPTANCE OF THE APPEAL IS PROVIDED IN THE COUNCIL'S RULES OF
PROCEDURE.
DEAR MR. GELLER:
REFERENCE IS MADE TO YOUR PETITION FOR REVIEW OF THE ADVISORY
ARBITRATOR'S DECISION IN THE ABOVE-ENTITLED MATTER, FILED UNDER SECTION
2411.12(C) OF THE COUNCIL'S RULES OF PROCEDURE.
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR APPEAL AND THE OPPOSITION
THERETO FILED BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AND
HAS DETERMINED THAT NO BASIS FOR ACCEPTANCE OF YOUR APPEAL IS PROVIDED
IN THE COUNCIL'S RULES. ACCORDINGLY, WITHOUT PASSING ON THE TIMELINESS
OF YOUR APPEAL, THE COUNCIL HAS DIRECTED THAT YOUR PETITION FOR REVIEW
BE DENIED.
FOR THE COUNCIL.
CC: W. J. USERY, JR.
DEPT. OF LABOR
WILLIAM J. SCHRADER
DEPT. OF THE ARMY
JAMES L. NEUSTADT
AFGE
1 FLRC 55; FLRC NO. 71A-6; FEBRUARY 12, 1971.
MR. FLOYD E. SMITH
INTERNATIONAL PRESIDENT
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS
1300 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20036
(SYNOPSIS) FLRC NO. 71A-6
IAM-AW AND DEPARTMENT OF THE NAVY. THE UNION PETITIONED FOR REVIEW
OF A POLICY DISPUTE OVER A NAVY DIRECTIVE ON THE SUBJECT OF NEGOTIATED
GRIEVANCE AND ARBITRATION PROCEDURES, CLAIMING THAT THE
NON-NEGOTIABILITY OF CERTAIN PROCEDURES UNDER THIS DIRECTIVE VIOLATED
THE ORDER AND FPM REQUIREMENTS. HOWEVER, THE UNION DID NOT IDENTIFY ANY
SPECIFIC CONTRACT NEGOTIATIONS OR CONTRACT PROPOSAL RELATING TO THE
MATTER, NOR DID THE UNION ADVERT TO ANY REQUEST FOR, OR RENDERING OF, AN
AGENCY HEAD DECISION ON SUCH A PROPOSAL.
COUNCIL ACTION (FEBRUARY 12, 1971). THE COUNCIL DENIED REVIEW SINCE
THE PETITION FAILED TO ESTABLISH ANY BASIS FOR REVIEW UNDER THE
COUNCIL'S RULES OF PROCEDURE.
DEAR MR. SMITH:
REFERENCE IS MADE TO YOUR PETITION FOR REVIEW OF A POLICY DISPUTE,
FILED WITH THE COUNCIL IN THE ABOVE-ENTITLED MATTER.
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR APPEAL AND THE OPPOSITION
THERETO FILED BY THE DEPARTMENT OF THE NAVY, AND HAS DETERMINED THAT
YOUR PETITION FAILS TO ESTABLISH ANY BASIS FOR REVIEW UNDER THE
COUNCIL'S RULES OF PROCEDURE. ACCORDINGLY, THE COUNCIL HAS DIRECTED
THAT YOUR PETITION FOR REVIEW BE DENIED.
FOR THE COUNCIL.
CC: A. DI PASQUALE
DEPT. OF NAVY
1 FLRC 53; FLRC NO. 70A-6; JANUARY 7, 1971.
MR. CLYDE M. WEBBER
EXECUTIVE VICE PRESIDENT
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
400 FIRST STREET, N.W.
WASHINGTON, D.C. 20001
(SYNOPSIS) FLRC NO. 70A-6
AFGE LOCAL 1960 AND NAVAL AIR REWORK FACILITY, NAVAL AIR STATION,
PENSACOLA, FLA. THE PARTIES DISAGREED ON THE NEGOTIABILITY OF THE
UNION'S PROPOSAL THAT WAGE GRADE EMPLOYEES WHO PERFORM SUPERVISORY
DUTIES IN THE TEMPORARY ABSENCE OF SUPERVISORS BE PAID AT SUPERVISOR
RATES FOR ALL PERIODS SERVED. UPON REFERRAL, THE DEPARTMENT OF THE NAVY
DETERMINED THAT THE PROPOSAL WAS NON-NEGOTIABLE UNDER NAVY REGULATIONS,
BUT INDICATED THAT A SOLUTION TO THE PROBLEM MIGHT BE PROVIDED THROUGH
RECOMMENDED MODIFICATION OF THE COORDINATED FEDERAL WAGE SYSTEM TO
PERMIT ADDITIONAL PAY ASSIGNMENTS FOR THIS SITUATION. THE UNION
(HEADQUARTERS) APPEALED TO THE COUNCIL FROM NAVY'S DETERMINATION OF
NON-NEGOTIABILITY. HOWEVER, PRIOR TO THIS APPEAL, THE LOCAL PARTIES
SIGNED A TWO-YEAR CONTRACT, WHICH PROVIDED THAT ASSIGNMENTS OR DETAILS
TO HIGHER LEVEL POSITIONS FOR OVER 45 DAYS SHALL BE EFFECTED BY
TEMPORARY OR PERMANENT PROMOTIONS; AND THAT, UPON RECEIPT OF CFWS
AUTHORIZATION PERMITTING ADDITIONAL PAY FOR EMPLOYEES ASSIGNED
SUPERVISORY DUTIES IN THE TEMPORARY ABSENCE OF SUPERVISORS, THE PARTIES
WOULD NEGOTIATE FURTHER ON THE MATTER. THE CONTRACT ALSO BARRED
REOPENING GENERALLY, EXCEPT UPON MUTUAL CONSENT OF THE PARTIES AND AFTER
CERTAIN FIXED PERIODS OF TIME.
COUNCIL ACTION (JANUARY 7, 1971). THE COUNCIL DECIDED THAT THE
NEGOTIABILITY ISSUE WAS RENDERED MOOT BY THE AGREEMENT OF THE PARTIES.
BECAUSE OF THE MOOTNESS OF THE NEGOTIABILITY ISSUE, AND WITHOUT PASSING
ON NAVY'S FURTHER CHALLENGE TO THE TIMELINESS OF THE UNION'S APPEAL, THE
COUNCIL DENIED THE PETITION FOR REVIEW.
DEAR MR. WEBBER:
REFERENCE IS MADE TO YOUR PETITION FOR REVIEW IN THE ABOVE-ENTITLED
MATTER.
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FILED ON NOVEMBER
9, 1970, SUPPLEMENTED, AS YOU REQUESTED, BY YOUR LETTER OF DECEMBER 8,
1970. THE COUNCIL HAS FURTHER CONSIDERED THE OPPOSITION TO YOUR
PETITION. FILED BY THE DEPARTMENT OF THE NAVY ON NOVEMBER 27, 1970, AND
THE CONTRACT BETWEEN LOCAL 1960 AND THE NAVAL AIR REWORK FACILITY,
APPROVED ON SEPTEMBER 25, 1970, AND SUBMITTED TO THE COUNCIL BY THE NAVY
ON DECEMBER 16, 1970.
IN THE OPINION OF THE COUNCIL, THE NEGOTIABILITY ISSUE WHICH WAS THE
SUBJECT OF YOUR APPEAL WAS RENDERED MOOT BY THE AGREEMENT OF THE PARTIES
RELATING TO THIS ISSUE AND BY THE RESTRICTIONS ON REOPENING DURING THE
TERM OF THAT AGREEMENT. BECAUSE OF THE MOOTNESS OF THE NEGOTIABILITY
ISSUE, AND WITHOUT PASSING ON THE TIMELINESS OF YOUR APPEAL, THE COUNCIL
HAS DIRECTED THAT REVIEW OF YOUR PETITION BE DENIED.
FOR THE COUNCIL.
CC: DIR., LABOR & EMP. REL. DIV.,
DEPT. OF NAVY
1 FLRC 51; FLRC NO. 70A-4; JANUARY 4, 1971.
MR. KENNETH E. DAY
BUSINESS MANAGER
LOCAL 910, I.B.E.W.
BLACK RIVER ROAD
WATERTOWN, NEW YORK 13601
(SYNOPSIS) FLRC NO. 70A-4
I.B.E.W. LOCAL 910 AND DIRECTORATE OF ENGINEERING, CAMP DRUM,
WATERTOWN, N.Y. THE UNION APPEALED FROM A DETERMINATION BY THE
DEPARTMENT OF THE ARMY THAT A UNION PROPOSAL FOR 4 HOURS OF MINIMUM
CALL-BACK OVERTIME WAS NON-NEGOTIABLE UNDER AN ARMY REGULATION WHICH
LIMITED SUCH MINIMUM OVERTIME TO 2 HOURS. THE UNION CLAIMED THAT ARMY
ERRED IN ITS INTERPRETATION OF ITS OWN REGULATION, AND THAT NOTHING IN
THE REGULATION PROHIBITED MORE THAN 2 HOURS IF THE PARTIES SO AGREED.
COUNCIL ACTION (JANUARY 4, 1971). THE COUNCIL DENIED REVIEW ON THE
GROUNDS THAT THE UNION'S PETITION FAILED TO PRESENT AN ISSUE SUBJECT TO
COUNCIL REVIEW UNDER THE CONDITIONS PRESCRIBED IN SECTION 11(C)(4) OF
THE ORDER.
DEAR MR. DAY:
REFERENCE IS MADE TO YOUR PETITION FOR REVIEW, FILED IN THE
ABOVE-ENTITLED MATTER.
UPON CAREFUL CONSIDERATION OF THE DOCUMENTS WHICH YOU SUBMITTED AND
THE OPPOSITION TO YOUR PETITION WHICH WAS TIMELY FILED BY THE DEPARTMENT
OF THE ARMY, THE COUNCIL HAS DETERMINED THAT YOUR APPEAL DOES NOT
PRESENT AN ISSUE SUBJECT TO COUNCIL REVIEW UNDER THE CONDITIONS
PRESCRIBED IN SECTION 11(C)(4) OF THE ORDER. THEREFORE, IN ACCORDANCE
WITH SECTION 2411.12(A) OF THE COUNCIL'S RULES OF PROCEDURE, THE COUNCIL
HAS DIRECTED THAT REVIEW OF YOUR APPEAL BE DENIED.
FOR THE COUNCIL.
CC: ACTING CIVILIAN PERSONNEL OFFICER
HANCOCK FIELD, SYRACUSE, NEW YORK
CHIEF, PROCEDURES AND REGULATIONS DIVISION
DEPARTMENT OF THE ARMY, WASHINGTON, D.C.
DIRECTOR, GOVERNMENT OPERATIONS, I.B.E.W.
WASHINGTON, D.C.
1 FLRC 49; FLRC NO. 70A-3; NOVEMBER 12, 1970.
MR. HERBERT CAHN
PRESIDENT, LOCAL 476
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES
P.O. BOX 204
LITTLE SILVER, NEW JERSEY 07739
(SYNOPSIS) FLRC NO. 70A-3
U.S. ARMY ELECTRONICS COMMAND, FORT MONMOUTH, NEW JERSEY, ATMOSPHERIC
SCIENCES LABORATORY, ASSISTANT SECRETARY CASE NO. 32-1506. THE UNION
(NFFE LOCAL 476) FILED AN UNFAIR LABOR PRACTICE COMPLAINT AGAINST THE
ATMOSPHERIC SCIENCES LABORATORY, BASED ON ALLEGED IMPROPER CONDUCT BY
THE ACTIVITY BEFORE JANUARY 1, 1970. THE ASSISTANT SECRETARY DISMISSED
THE COMPLAINT, BECAUSE THE ALLEGED UNLAWFUL ACTION OCCURRED PRIOR TO THE
EFFECTIVE DATE OF EXECUTIVE ORDER 11491. THE UNION APPEALED TO THE
COUNCIL FOR REVIEW OF THE ASSISTANT SECRETARY'S DECISION.
COUNCIL ACTION (NOVEMBER 12, 1970). THE COUNCIL DENIED REVIEW ON THE
GROUNDS THAT THE UNION'S APPEAL FAILED TO MEET THE REQUIREMENTS FOR
REVIEW UNDER SECTION 2411.12(C) OF ITS RULES.
DEAR MR. CAHN:
REFERENCE IS MADE TO YOUR APPEAL TO THE COUNCIL FOR REVIEW OF THE
DECISION OF THE ASSISTANT SECRETARY IN THE ABOVE-CAPTIONED CASE.
THE COUNCIL HAS FULLY CONSIDERED THE DOCUMENTS WHICH YOU SUBMITTED
AND HAS DETERMINED THAT YOUR APPEAL FAILS TO MEET THE REQUIREMENTS FOR
REVIEW AS PROVIDED UNDER SECTION 2411.12(C) OF THE COUNCIL RULES OF
PROCEDURE. ACCORDINGLY, THE COUNCIL HAS DIRECTED THAT REVIEW OF YOUR
APPEAL BE DENIED. THE COUNCIL HAS FURTHER DIRECTED THAT YOUR REQUEST
FOR A HEARING ALSO BE DENIED.
FOR THE COUNCIL.
CC: NFFE HEADQUARTERS
USAECOM, FT. MONMOUTH, N.J.
ASST. SECY. OF LABOR FOR
LABOR-MANAGEMENT RELATIONS
1 FLRC 47; FLRC NO. 70A-2; SEPTEMBER 24, 1970.
PATRICK C. O'DONOGHUE, ESQ.
DOUGLAS L. LESLIE, ESQ.
ATTORNEYS FOR FIFTH NAVAL DISTRICT
METAL TRADES COUNCIL, AFL-CIO
1912 SUNDERLAND PLACE, N.W.
WASHINGTON, D.C. 20036
(SYNOPSIS) FLRC NO. 70A-2
NORFOLK NAVAL SHIPYARD, ASSISTANT SECRETARY CASE NO. 46-1617 (RO).
FOLLOWING A REPRESENTATION ELECTION CONDUCTED AT THE NORFOLK NAVAL
SHIPYARD, IN WHICH MTC AND NAGE PARTICIPATED, THE ASSISTANT SECRETARY
ISSUED A DECISION AND DIRECTION OF A HEARING ON CERTAIN OBJECTIONS TO
THE ELECTION FILED BY MTC. MTC APPEALED TO THE COUNCIL FOR REVIEW OF
THIS ACTION BY THE ASSISTANT SECRETARY, SEEKING A HEARING ALSO ON
OBJECTIONS OVERRULED BY THE ASSISTANT SECRETARY IN HIS DECISION. NAGE
FILED A CROSS-APPEAL WITH THE COUNCIL, ON JURISDICTIONAL GROUNDS AND
SEEKING THE OVERRULING OF ALL THE OBJECTIONS FILED BY MTC.
COUNCIL ACTION (SEPTEMBER 24, 1970). THE COUNCIL DENIED REVIEW OF
THESE INTERLOCUTORY APPEALS, WITHOUT PREJUDICE TO THE RENEWAL BY THE
UNIONS OF THEIR RESPECTIVE CONTENTIONS IN PETITIONS DULY FILED WITH THE
COUNCIL AFTER FINAL DECISION ON THE ENTIRE CASE BY THE ASSISTANT
SECRETARY.
GENTLEMEN:
REFERENCE IS MADE TO YOUR PETITION IN THE ABOVE-CAPTIONED CASE,
REQUESTING REVIEW OF A DECISION AND DIRECTION OF HEARING ISSUED BY THE
ASSISTANT SECRETARY ON JULY 16, 1970.
THE COUNCIL HAS FULLY CONSIDERED THE DOCUMENTS WHICH YOU SUBMITTED
AND THE OPPOSITION TO YOUR PETITION FILED BY NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, AND HAS DIRECTED THAT REVIEW OF YOUR PETITION BE
DENIED AT THIS TIME, WITHOUT PREJUDICE TO THE RENEWAL OF YOUR
CONTENTIONS IN A PETITION DULY FILED WITH THE COUNCIL AFTER FINAL
DECISION ON THE ENTIRE CASE BY THE ASSISTANT SECRETARY.
FOR THE COUNCIL.
COPIES TO: GORDON P. RAMSEY, ESQ.
HONORABLE W. J. USERY, JR.
MR. W. J. RICHMOND OVERATH
HONORABLE JOHN H. CHAFFEE
ADMIRAL JAMES A. BROWN, USN
MR. ALAN WHITNEY
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES COUNCIL OF SHIPYARD LOCALS
MR. GLENN R. GRAVES, ESQ.
GORDON P. RAMSEY, ESQ.
GADSBY & HANNAH
1700 PENNSYLVANIA AVENUE, N.W.
WASHINGTON, D.C. 20006
DEAR MR. RAMSEY:
REFERENCE IS MADE TO YOUR CROSS-APPEAL IN THE ABOVE-CAPTIONED MATTER,
CHALLENGING RETROACTIVE ASSERTION OF JURISDICTION BY THE ASSISTANT
SECRETARY OVER THIS CASE AND, IN THE ALTERNATIVE, REQUESTING REVERSAL OF
THE DECISION DATED JULY 16, 1970, OF THE ASSISTANT SECRETARY, DIRECTING
A HEARING ON CERTAIN OBJECTIONS FILED BY THE METAL TRADES COUNCIL,
AFL-CIO (MTC).
THE COUNCIL HAS FULLY CONSIDERED THE DOCUMENTS WHICH YOU SUBMITTED
AND THE OPPOSITION TO YOUR CROSS-APPEAL FILED BY MTC, AND HAS DIRECTED
THAT REVIEW OF YOUR CROSS-APPEAL BE DENIED AT THIS TIME, WITHOUT
PREJUDICE TO THE RENEWAL OF YOUR CONTENTIONS IN A PETITION DULY FILED
WITH THE COUNCIL AFTER FINAL DECISION ON THE ENTIRE CASE BY THE
ASSISTANT SECRETARY. THE COUNCIL HAS FURTHER DIRECTED THAT YOUR REQUEST
FOR ORAL ARGUMENT BE DENIED.
FOR THE COUNCIL.
COPIES TO: HONORABLE W. J. USERY, JR.
MR. W. J. RICHMOND OVERATH
HONORABLE JOHN W. CHAFFEE
ADMIRAL JAMES A. BROWN, USN
MR. PATRICK C. O'DONOGHUE, ESQ.
MR. DOUGLAS L. LESLIE, ESQ.
1 FLRC 45; FLRC NO. 70A-1; SEPTEMBER 11, 1970.
MR. BRUCE I. WAXMAN, ASSISTANT
TO THE STAFF COUNSEL
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES (AFL-CIO)
400 FIRST STREET, NW.
WASHINGTON, D.C. 20001
(SYNOPSIS) FLRC NO. 70A-1
DEPARTMENT OF THE ARMY, U.S. MILITARY ACADEMY, WEST POINT, N.Y.,
ASSISTANT SECRETARY CASE NO. 30-2547. IN A REPRESENTATION CASE FILED BY
NAGE WITH THE ASSISTANT SECRETARY, AFGE INTERVENED AND MOVED TO DISMISS
THE PETITION ON VARIOUS GROUNDS, INCLUDING THE CHARGE OF LACHES BY NAGE
IN PURSUING ITS REQUEST FOR RECOGNITION. THE ASSISTANT SECRETARY DENIED
THE MOTION TO DISMISS, AND AFGE SUBMITTED AN INTERLOCUTORY APPEAL TO THE
COUNCIL, FOR REVIEW AND REVERSAL OF THAT DECISION, REPLYING PRINCIPALLY
ON THE DOCTRINE OF LACHES.
COUNCIL ACTION (SEPTEMBER 11, 1970). THE COUNCIL DENIED REVIEW OF
THE APPEAL FILED BY AFGE, WITHOUT PREJUDICE TO THE UNION'S RENEWAL OF
ITS CONTENTIONS IN A PETITION DULY FILED WITH THE COUNCIL AFTER FINAL
DECISION OF THE ENTIRE CASE BY THE ASSISTANT SECRETARY.
DEAR MR. WAXMAN:
REFERENCE IS MADE TO YOUR PETITION AND FURTHER STATEMENT IN THE
ABOVE-CAPTIONED CASE, REQUESTING THAT THE COUNCIL REVIEW THE DECISION OF
THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS
SUSTAINING THE REGIONAL ADMINISTRATOR'S DENIAL OF YOUR MOTION TO
DISMISS; AND THAT THE COUNCIL REVERSE SUCH DECISION, PRINCIPALLY ON THE
GROUNDS OF LACHES BY THE PETITIONER, NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES.
THE COUNCIL HAS FULLY CONSIDERED THE DOCUMENTS WHICH YOU SUBMITTED
AND THE OPPOSITION TO YOUR PETITION FILED BY NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, AND HAS DIRECTED THAT REVIEW OF YOUR PETITION BE
DENIED AT THIS TIME, WITHOUT PREJUDICE TO THE RENEWAL OF YOUR
CONTENTIONS IN A PETITION DULY FILED WITH THE COUNCIL AFTER FINAL
DECISION ON THE ENTIRE CASE BY THE ASSISTANT SECRETARY.
FOR THE COUNCIL.
COPIES TO:
JAMES L. NEUSTADT
KENNETH T. LYONS
MAJOR GENERAL WILLIAM A. KNOWLTON
HONORABLE W. J. USERY
2 FLRC 307; FLRC NO. 73P-2; FEBRUARY 26, 1974.
MR. WILLIAM B. PEER
GENERAL COUNSEL
PROFESSIONAL AIR TRAFFIC
CONTROLLERS ORGANIZATION
SUITE 1002
1101 SEVENTEENTH ST., NW.
WASHINGTON, DC 20036
(SYNOPSIS) FLRC NO. 73P-2
A LABOR ORGANIZATION REQUESTED THE COUNCIL TO ISSUE AN INTERPRETATION
AND STATEMENT ON THE FOLLOWING QUESTIONS:
1. UNDER EXECUTIVE ORDER 11491, AS AMENDED, IS THE AGENCY WITHIN THE
DEPARTMENT OR THE
DEPARTMENT ITSELF THE "AGENCY" WITH WHICH THE LABOR ORGANIZATION
SHALL NEGOTIATE AGREEMENTS?
2. IF THE DEPARTMENT IS THE "AGENCY," MAY THE LABOR ORGANIZATION
INSIST THAT A
REPRESENTATIVE OF THE DEPARTMENT NEGOTIATE THE NEXT AGREEMENT?
THE COUNCIL ADVISED THE LABOR ORGANIZATION ON FEBRUARY 26, 1974, THAT
AFTER CAREFUL CONSIDERATION OF THE REQUEST AND THE SUBMISSION OF THE
DEPARTMENT CONCERNED IT HAD DETERMINED THAT THE REQUEST DID NOT MEET THE
REQUIREMENTS OF SECTION 2410.3 OF THE COUNCIL'S RULES. THE COUNCIL
CONCLUDED THAT:
FIRST, THE QUESTIONS RAISED CAN MORE APPROPRIATELY BE RESOLVED BY
OTHER MEANS AVAILABLE UNDER THE ORDER. IN THIS REGARD, IT WAS NOTED
THAT SECTION 19(A)(6) PROVIDES THAT IT SHALL BE AN UNFAIR LABOR PRACTICE
FOR AGENCY MANAGEMENT TO REFUSE TO CONSULT, CONFER, OR NEGOTIATE WITH A
LABOR ORGANIZATION AS REQUIRED BY THE ORDER. SECTION 6(A)(4) OF THE
ORDER PROVIDES THAT THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS SHALL DECIDE UNFAIR LABOR PRACTICE
COMPLAINTS. IN FACT, IT WAS NOTED THAT THE LABOR ORGANIZATION HAD
INDICATED IN ITS REQUEST THAT DURING THE LAST NEGOTIATIONS
"CONSIDERATION WAS GIVEN TO FILING OF UNFAIR LABOR PRACTICE CHARGES."
THAT COURSE WAS NOT PURSUED BECAUSE IT WOULD NOT ASSURE "THAT A CONTRACT
WOULD BE IN HAND"; INSTEAD THE LABOR ORGANIZATION DECIDED "TO RAISE THE
UNDERLYING ISSUES IN THE APPROPRIATE FORUM AT A LATER TIME, AFTER THE
CONTRACT WAS AN ABSOLUTE, . . . (DEPARTMENT)-APPROVED CERTITUDE."
SECOND, THE RESOLUTION OF THE QUESTIONS WHICH WERE RAISED WOULD NOT
PREVENT THE PROLIFERATION OF CASES INVOLVING THE SAME OR SIMILAR POLICY
ISSUES. NO INFORMATION WAS OFFERED TO INDICATE THAT SIMILAR QUESTIONS
EXIST OR ARE LIKELY TO ARISE WITH RESPECT TO THE RELATIONSHIP BETWEEN
EXECUTIVE DEPARTMENTS AND THEIR IMMEDIATE MAJOR ORGANIZATIONAL
SUBDIVISIONS.
THIRD, WHILE THE SPECIFIC QUESTIONS APPEARED TO HAVE SOME GENERAL
APPLICABILITY TO OTHER LABOR-MANAGEMENT RELATIONSHIPS WITHIN THE
EXECUTIVE BRANCH, THE SERIES OF EVENTS DESCRIBED IN THE REQUEST WERE
PECULIAR TO THE IMMEDIATE RELATIONSHIP AND THERE WAS NO INDICATION THAT
THIS PROBLEM EXISTS ELSEWHERE.
FOURTH, WHILE THE QUESTIONS CONFRONTED THE PARTIES IN THE CONTEXT OF
THEIR LABOR-MANAGEMENT RELATIONSHIP IN NEGOTIATIONS CONDUCTED DURING
1973, THERE WAS NO INDICATION THAT THE QUESTIONS REQUIRE RESOLUTION AT
THIS TIME THROUGH THE COUNCIL'S MAJOR POLICY PROCEDURES.
FIFTH, THE QUESTIONS WERE NOT PRESENTED JOINTLY BY THE PARTIES
INVOLVED. INSTEAD, THE DEPARTMENT CONTENDED THAT THE QUESTIONS DO NOT
CONSTITUTE MAJOR POLICY ISSUES REQUIRING DECISION BY THE COUNCIL UNDER
PART 2410 OF ITS REGULATIONS. IN PARTICULAR, THE DEPARTMENT CONCEDED IN
ITS BRIEF THAT THE LABOR ORGANIZATION WAS CERTIFIED BY THE ASSISTANT
SECRETARY AS THE EXCLUSIVE REPRESENTATIVE OF A UNIT IN THE AGENCY; THAT
THE ABERDEEN PROVING GROUND DECISION (FLRC NO. 70A-9) WAS DISPOSITIVE OF
THE ISSUE OF WHETHER THE AGENCY IS THE "AGENCY" WITH WHICH THE LABOR
ORGANIZATION SHOULD DEAL; AND FINALLY, SPECIFICALLY STATED:
(F)OR THE PURPOSE OF NEGOTIATING AN AGREEMENT UNDER SECTION 11, . . .
(THE AGENCY) IS THE
"AGENCY." ANY CONTRARY INTERPRETATION WOULD VIRTUALLY ELIMINATE THE
SUBORDINATE ORGANIZATION
OF THE . . . (DEPARTMENT) FROM COVERAGE OF THE ENTIRE ORDER AND AS
THE COUNCIL HAS
STATED: " . . . SECTION 2(A) OBVIOUSLY DID NOT INTEND SO INCONGRUOUS
A RESULT."
SIXTH, WHILE RESOLUTION OF THE PROBLEMS PRESENTED BY THE LABOR
ORGANIZATION MIGHT IMPROVE ITS BARGAINING RELATIONSHIP WITH THE AGENCY,
IT WOULD OFFER NO SPECIAL BENEFITS IN PROMOTING CONSTRUCTIVE AND
COOPERATIVE LABOR-MANAGEMENT RELATIONSHIPS IN THE FEDERAL SERVICE
GENERALLY OR OTHERWISE PROMOTE, IN AN OVERALL WAY, THE PURPOSES OF THE
ORDER.
IN SUM, THE COUNCIL CONCLUDED THAT THERE WAS NO REAL QUESTION AS TO
THE AGENCY WITH WHICH THE LABOR ORGANIZATION IS TO BARGAIN. THE
ASSISTANT SECRETARY HAS CERTIFIED THE LABOR ORGANIZATION AS THE
EXCLUSIVE BARGAINING REPRESENTATIVE FOR A NATIONWIDE UNIT WITHIN THE
AGENCY AND THE DEPARTMENT HAS CONCEDED IN ITS BRIEF THAT THE AGENCY IS
THE "AGENCY" WITH WHICH THE LABOR ORGANIZATION SHOULD DEAL. MOREOVER,
AS RECOGNIZED BY THE LABOR ORGANIZATION IN ITS SUBMISSION, AN ALLEGED
FAILURE BY AN AGENCY TO MEET THE REQUIREMENTS OF SECTION 11(A) AND THE
REQUIREMENTS OF SECTION 15 OF THE ORDER WOULD BE SUBJECT TO THE UNFAIR
LABOR PRACTICE PROCEDURES OF SECTION 19.
DEAR MR. PEER:
THIS IS IN FURTHER REPLY TO YOUR "REQUEST FOR INTERPRETATION OF
EXECUTIVE ORDER AND STATEMENT ON MAJOR POLICY ISSUES." YOU REQUEST THE
COUNCIL TO ISSUE AN INTERPRETATION AND STATEMENT ON THE FOLLOWING
QUESTIONS:
1. UNDER EXECUTIVE ORDER 11491, AS AMENDED, IS THE FEDERAL AVIATION
ADMINISTRATION OR
DEPARTMENT OF TRANSPORTATION THE "AGENCY" WITH WHICH THE PROFESSIONAL
AIR TRAFFIC CONTROLLERS
ORGANIZATION SHALL NEGOTIATE AGREEMENTS?
2. IF DEPARTMENT OF TRANSPORTATION IS THE "AGENCY," MAY THE
PROFESSIONAL AIR TRAFFIC
CONTROLLERS ORGANIZATION INSIST THAT A REPRESENTATIVE OF DEPARTMENT
OF TRANSPORTATION
NEGOTIATE THE NEXT AGREEMENT?
SECTION 2410.3 OF THE COUNCIL'S RULES CONTAINS THE CONSIDERATIONS
GOVERNING ISSUANCE OF INTERPRETATIONS AND POLICY STATEMENTS. IT
PROVIDES THAT:
(A) THE COUNCIL SHALL, IN ITS DISCRETION, ISSUE INTERPRETATIONS OF
THE ORDER AND STATEMENTS
ON MAJOR POLICY ISSUES WHICH IT DEEMS TO HAVE GENERAL APPLICABILITY
TO THE OVERALL PROGRAM IN
ASSURING THE EFFECTUATION OF THE PURPOSES OF THE ORDER. THE COUNCIL
MAY ACT ON ITS OWN
INITIATIVE OR UPON REQUEST AS PROVIDED IN SEC. 2410.4.
(B) IN DECIDING WHETHER TO ISSUE AN INTERPRETATION OR A POLICY
STATEMENT, THE COUNCIL SHALL
CONSIDER:
(1) WHETHER THE QUESTION PRESENTED CAN MORE APPROPRIATELY BE RESOLVED
BY OTHER MEANS
AVAILABLE UNDER LAW, OTHER EXECUTIVE ORDERS, REGULATION OR THE ORDER;
(2) WHERE OTHER MEANS ARE AVAILABLE, WHETHER COUNCIL ACTION WOULD
PREVENT THE PROLIFERATION
OF CASES INVOLVING THE SAME OR SIMILAR QUESTION OF INTERPRETATION OR
MAJOR POLICY ISSUE;
(3) WHETHER THE RESOLUTION OF THE QUESTION PRESENTED WOULD HAVE
GENERAL APPLICABILITY TO
THE OVERALL PROGRAM;
(4) WHETHER THE ISSUE CURRENTLY CONFRONTS PARTIES IN THE CONTEXT OF A
LABOR-MANAGEMENT
RELATIONSHIP;
(5) WHETHER THE QUESTION IS PRESENTED JOINTLY BY THE PARTIES
INVOLVED; AND
(6) WHETHER COUNCIL RESOLUTION OF THE QUESTION OF INTERPRETATION OR
MAJOR POLICY ISSUE
WOULD PROMOTE CONSTRUCTIVE AND COOPERATIVE LABOR-MANAGEMENT
RELATIONSHIPS IN THE FEDERAL
SERVICE AND WOULD OTHERWISE PROMOTE THE PURPOSES OF THE ORDER.
THE COUNCIL HAS CONSIDERED CAREFULLY YOUR REQUEST AND THE SUBMISSION
OF THE DEPARTMENT OF TRANSPORTATION IN RELATION TO SEC. 2410.3 AND HAS
DETERMINED THAT YOUR REQUEST DOES NOT MEET THE REQUIREMENTS OF THAT
SECTION.
FIRST, THE QUESTIONS WHICH YOU RAISE CAN MORE APPROPRIATELY BE
RESOLVED BY OTHER MEANS AVAILABLE UNDER THE ORDER. IN THIS REGARD, IT
IS NOTED THAT SECTION 19(A)(6) PROVIDES THAT IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR AGENCY MANAGEMENT TO REFUSE TO CONSULT, CONFER, OR
NEGOTIATE WITH A LABOR ORGANIZATION AS REQUIRED BY THE ORDER. SECTION
6(A)(4) OF THE ORDER PROVIDES THAT THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS SHALL DECIDE UNFAIR LABOR PRACTICE
COMPLAINTS. IN FACT, YOU INDICATED IN YOUR REQUEST THAT DURING THE LAST
NEGOTIATIONS "CONSIDERATION WAS GIVEN TO FILING OF UNFAIR LABOR PRACTICE
CHARGES." THAT COURSE WAS NOT PURSUED BECAUSE IT WOULD NOT ASSURE "THAT
A CONTRACT WOULD BE IN HAND"; INSTEAD YOU DECIDED "TO RAISE THE
UNDERLYING ISSUES IN THE APPROPRIATE FORUM AT A LATER TIME, AFTER THE
CONTRACT WAS AN ABSOLUTE, DOT-APPROVED CERTITUDE."
SECOND, THE RESOLUTION OF THE QUESTIONS WHICH YOU RAISED WOULD NOT
PREVENT THE PROFILERATION OF CASES INVOLVING THE SAME OR SIMILAR POLICY
ISSUES. YOU OFFERED NO INFORMATION TO INDICATE THAT SIMILAR QUESTIONS
EXIST OR ARE LIKELY TO ARISE WITH RESPECT TO THE RELATIONSHIP BETWEEN
EXECUTIVE DEPARTMENTS AND THEIR IMMEDIATE MAJOR ORGANIZATIONAL
SUBDIVISIONS.
THIRD, WHILE THE SPECIFIC QUESTIONS APPEAR TO HAVE SOME GENERAL
APPLICABILITY TO OTHER LABOR-MANAGEMENT RELATIONSHIPS WITHIN THE
EXECUTIVE BRANCH, THE SERIES OF EVENTS DESCRIBED IN YOUR REQUEST ARE
PECULIAR TO THE FAA-PATCO RELATIONSHIP AND THERE IS NO INDICATION THAT
THIS PROBLEM EXISTS ELSEWHERE.
FOURTH, WHILE THE QUESTIONS CONFRONTED THE PARTIES IN THE CONTEXT OF
THEIR LABOR-MANAGEMENT RELATIONSHIP IN THE 1973 NEGOTIATIONS, THERE IS
NO INDICATION THAT THE QUESTIONS REQUIRE RESOLUTION AT THIS TIME THROUGH
THE COUNCIL'S MAJOR POLICY PROCEDURES.
FIRTH, THE QUESTIONS HAVE NOT BEEN PRESENTED JOINTLY BY THE PARTIES
INVOLVED. INSTEAD, THE DEPARTMENT OF TRANSPORTATION CONTENDS THAT THE
QUESTIONS DO NOT CONSTITUTE MAJOR POLICY ISSUES REQUIRING DECISION BY
THE COUNCIL UNDER PART 2410 OF ITS REGULATIONS. IN PARTICULAR, THE
DEPARTMENT OF TRANSPORTATION CONCEDES IN ITS BRIEF THAT PATCO WAS
CERTIFIED BY THE ASSISTANT SECRETARY AS THE EXCLUSIVE REPRESENTATIVE OF
A UNIT IN THE FEDERAL AVIATION ADMINISTRATION; THAT THE ABERDEEN
PROVING GROUND DECISION (FLRC NO. 70A-9) IS DISPOSITIVE OF THE ISSUE OF
WHETHER THE FAA IS THE "AGENCY" WITH WHICH PATCO SHOULD DEAL; AND
FINALLY, SPECIFICALLY STATES:
(F)OR THE PURPOSES OF NEGOTIATING AN AGREEMENT UNDER SECTION 11, FAA
IS THE "AGENCY." ANY
CONTRARY INTERPRETATION WOULD VIRTUALLY ELIMINATE THE SUBORDINATE
ORGANIZATION OF THE
DEPARTMENT OF TRANSPORTATION FROM COVERAGE OF THE ENTIRE ORDER AND AS
THE COUNCIL HAS
STATED: " . . . SECTION 2(A) OBVIOUSLY DID NOT INTEND SO INCONGRUOUS
A RESULT."
SIXTH, WHILE RESOLUTION OF THE PROBLEMS PRESENTED BY PATCO MIGHT
IMPROVE ITS BARGAINING RELATIONSHIP WITH FAA, IT WOULD OFFER NO SPECIAL
BENEFITS IN PROMOTING CONSTRUCTIVE AND COOPERATIVE LABOR-MANAGEMENT
RELATIONSHIPS IN THE FEDERAL SERVICE GENERALLY OR OTHERWISE PROMOTE, IN
AN OVERALL WAY, THE PURPOSES OF THE ORDER.
IN SUM, THERE IS NO REAL QUESTION HERE AS TO THE AGENCY WITH WHICH
PATCO IS TO BARGAIN. THE ASSISTANT SECRETARY HAS CERTIFIED PATCO AS THE
EXCLUSIVE BARGAINING REPRESENTATIVE FOR A NATIONWIDE UNIT WITHIN FAA AND
DOT HAS CONCEDED IN ITS BRIEF THAT FAA IS THE "AGENCY" WITH WHICH PATCO
SHOULD DEAL. MOREOVER, AS RECOGNIZED BY PATCO IN ITS SUBMISSION, AN
ALLEGED FAILURE BY AN AGENCY TO MEET THE REQUIREMENTS OF SECTION 11(A)
AND THE REQUIREMENTS OF SECTION 15 OF THE ORDER WOULD BE SUBJECT TO THE
UNFAIR LABOR PRACTICE PROCEDURES OF SECTION 19.
THEREFORE, FOR ALL OF THE PRECEDING REASONS, THE COUNCIL HAS
DETERMINED THAT THE QUESTIONS PRESENTED DO NOT MEET THE CONSIDERATIONS
IN SECTION 2410.3 OF THE COUNCIL'S RULES. ACCORDINGLY, YOUR REQUEST IS
DENIED.
BY THE COUNCIL.
CC: HON. C. BRINEGAR
TRANSPORTATION
HON. A. P. BUTTERFIELD
FAA
MR. E. V. CURRAN
FAA
HON. P. FASSER, JR.
DEPT. OF LABOR
MR. H. W. SOLOMON
FSIP
FMCS
DEPT. OF LABOR
2 FLRC 300; FLRC NO. 74A-49; DECEMBER 20, 1974.
MR. PERCY O. DALEY, JR.
PRESIDENT, LOCAL 1164
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
53 HILDRETH STREET
WESTFORD, MASSACHUSETTS 01886
(SYNOPSIS) FLRC NO. 74A-49
LOCAL 1164, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND
BUREAU OF DISTRICT OFFICE OPERATIONS, BOSTON REGION, SOCIAL SECURITY
ADMINISTRATION (SANTER, ARBITRATOR). THE PARTIES SUBMITTED TO
ARBITRATION THE UNION'S GRIEVANCE WHICH ALLEGED IN SUBSTANCE THAT THE
AGENCY, BY DETAILING AN EMPLOYEE TO A DIFFERENT OFFICE, CHANGED A
PERSONNEL POLICY WITHOUT CONSULTING THE UNION, IN VIOLATION OF THE
COLLECTIVE BARGAINING AGREEMENT. THE UNION SUBSEQUENTLY REQUESTED THE
AGENCY TO AGREE TO JOIN FOR HEARING BY THE SAME ARBITRATOR A SEPARATE
GRIEVANCE FILED BY THE DETAILED EMPLOYEE, BUT THE AGENCY REFUSED ON THE
GROUND THAT THE TWO GRIEVANCES RAISED SEPARATE ISSUES; THERE IS NO
SPECIFIC INDICATION THAT THE UNION RENEWED ITS REQUEST BEFORE THE
ARBITRATOR. THE ARBITRATOR FORMULATED THE ISSUE TO BE DECIDED AS
WHETHER THE AGENCY CHANGED EXISTING PERSONNEL POLICY IN HANDLING THE
DETAILED EMPLOYEE'S CASE. IN HIS AWARD THE ARBITRATOR DETERMINED THAT
THE AGENCY DID NOT. THE UNION FILED EXCEPTIONS ALLEGING (1) THAT HIS
AWARD CONTAINS ERRONEOUS FINDINGS OF FACT, AND (2) THAT THE ARBITRATOR
MADE AN ARBITRARY AND CAPRICIOUS AWARD BY TENDING TO RESTRICT THE SCOPE
OF THE HEARING TO THE ALLEGED AGREEMENT VIOLATION AND REFUSING TO
CONSIDER AN ISSUE IN THE EMPLOYEE'S SEPARATE GRIEVANCE.
COUNCIL ACTION (DECEMBER 20, 1974). THE COUNCIL DETERMINED THAT
NEITHER OF THE UNION'S EXCEPTIONS ASSERTED A GROUND SIMILAR TO THOSE
UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE SUSTAINED BY COURTS IN
PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS, AS REQUIRED BY SECTION
2411.32 OF THE COUNCIL'S RULES (5 CFR 2411.32). REGARDING THE UNION'S
FIRST EXCEPTION, THE COUNCIL HELD, BASED ON PRIVATE SECTOR LAW AS
LIKEWISE APPLICABLE TO THE FEDERAL SECTOR, THAT AN ARBITRATOR'S FINDINGS
OF FACT ARE NOT TO BE QUESTIONED. AS TO THE UNION'S SECOND EXCEPTION,
THE COUNCIL FOUND THAT THE UNION'S PETITION FURNISHED NO FACTS OR
CIRCUMSTANCES TO SHOW THAT THE PARTIES HAD SUBMITTED THE EMPLOYEE'S
SEPARATE GRIEVANCE TO THE ARBITRATOR; THAT THE QUESTION OF WHETHER A
SINGLE ARBITRATOR MAY CONSIDER MORE THAN ONE GRIEVANCE IS A PROCEDURAL
QUESTION LEFT BY COURTS IN PRIVATE SECTOR CASES TO FINAL DISPOSITION BY
THE ARBITRATOR; AND THAT NO PRECEDENT WAS ESTABLISHED IN WHICH A COURT
SET ASIDE AN AWARD IN THE PRIVATE SECTOR ON THE GROUND HERE ADVANCED BY
THE UNION. ACCORDINGLY, THE COUNCIL DENIED THE UNION'S PETITION FOR
REVIEW.
DEAR MR. DALEY:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ARBITRATOR'S AWARD FILED IN THE ABOVE-ENTITLED CASE.
THE AWARD SHOWS THAT THE AGENCY'S BOSTON REGIONAL OFFICE DETAILED
MRS. JUDITH C. BROGIOLI TO A DIFFERENT OFFICE WITHIN THE BOSTON REGION
TO ASSIST IN THE INCREASED WORKLOAD. THE UNION FILED A GRIEVANCE WHICH
IN SUBSTANCE ALLEGED THAT THE REGION, BY ITS ACTION, HAD CHANGED A
PERSONNEL POLICY AND PROCEDURE WITHOUT CONSULTING THE UNION AS REQUIRED
IN ARTICLE 6, SECTION 6, OF THE COLLECTIVE BARGAINING AGREEMENT. /1/ IN
ITS ANSWER, THE AGENCY STATED THAT ITS (UNWRITTEN) POLICY ON DETAILS
WAS, AS SHOWN THROUGH PAST PRACTICE, "TO SEEK VOLUNTEERS FOR DETAILS
WHEN FEASIBLE AND PRACTICABLE; OTHERWISE TO MAKE SPECIFIC DETAILS WHEN
REQUIRED." WHEN THE PARTIES SUBMITTED THE UNION'S GRIEVANCE TO
ARBITRATION, IT APPEARS THAT THEY DID NOT ENTER INTO A SUBMISSION
AGREEMENT FORMULATING THE QUESTION OR QUESTIONS TO BE POSED TO THE
ARBITRATOR, /2/ AND THEY COULD NOT AGREE UPON THE ISSUE WHEN THE HEARING
OPENED. AS A CONSEQUENCE, THE ARBITRATOR, RULING THAT THE ISSUE SHOULD
BE BASED ON THE UNION'S GRIEVANCE AND THE AGENCY'S ANSWER, FORMULATED
THE ISSUE TO BE: "IN HANDLING MRS. BROGIOLI'S CASE DID THE REGION
CHANGE EXISTING PERSONNEL POLICY?"
THE ARBITRATOR DETERMINED THAT THE UNION DID NOT FURNISH THE PROOF
REQUIRED TO ESTABLISH THAT THE UNIVERSAL AND UNVARYING PRACTICE OF THE
BOSTON REGION, WHEN DETAILING EMPLOYEES, WAS TO SEEK VOLUNTEERS IN
GENERAL OR A PARTICULAR VOLUNTEER, OR BOTH, AND THAT EMPLOYEES WERE
NEVER ORDERED TO BE DETAILED WITHOUT A PRIOR REQUEST. THEREFORE, IN HIS
AWARD, THE ARBITRATOR CONCLUDED THAT THE REGION DID NOT CHANGE EXISTING
PERSONNEL POLICY IN HANDLING MRS. BROGIOLI'S DETAIL.
THE UNION REQUESTS THAT THE COUNCIL ACCEPT ITS PETITION FOR REVIEW OF
THE ARBITRATOR'S AWARD ON THE BASIS OF ITS TWO EXCEPTIONS DISCUSSED
BELOW.
UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE, REVIEW OF
AN ARBITRATION AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON
THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE
EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES
APPLICABLE LAW, APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS
SIMILAR TO THOSE UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE
SUSTAINED BY COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS."
THE UNION'S FIRST EXCEPTION CONTENDS THAT THE ARBITRATOR'S AWARD
CONTAINS A NUMBER OF ERRONEOUS FINDINGS OF FACT. HOWEVER, THE LAW IS
WELL SETTLED IN THE PRIVATE SECTOR THAT AN ARBITRATOR'S FINDINGS AS TO
THE FACTS ARE NOT TO BE QUESTIONED BY THE COURTS. SEE, E.G., MEAT
CUTTERS & BUTCHER WORKMEN, LOCAL 540 V. NEUHOFF BROS. PACKERS, 481 F.2D
817, 819, 83 LRRM 2652, 2653 (5TH CIR. 1973). THIS PRINCIPLE IS
LIKEWISE APPLICABLE IN THE FEDERAL SECTOR UNDER SECTION 2411.32 OF THE
COUNCIL'S RULES OF PROCEDURE. FEDERAL EMPLOYEES METAL TRADES COUNCIL,
VALLEJO, CALIFORNIA AND MARE ISLAND NAVAL SHIPYARD, VALLEJO, CALIFORNIA
(HUGHES, ARBITRATOR), FLRC NO. 73A-20 (SEPTEMBER 17, . . . ), REPORT NO.
44. THEREFORE, THE UNION'S FIRST EXCEPTION DOES NOT ASSERT A GROUND
SIMILAR TO THOSE UPON WHICH CHALLENGES TO LABOR ARBITRATION AWARDS ARE
SUSTAINED BY COURTS IN PRIVATE SECTOR CASES.
THE UNION'S SECOND EXCEPTION CONTENDS THAT, BECAUSE OF THE
ARBITRATOR'S MANNER IN TENDING TO RESTRICT THE SCOPE OF THE HEARING TO
ARTICLE 6, SECTION 6, OF THE AGREEMENT AND HIS REFUSAL TO CONSIDER AN
ISSUE IN THE SEPARATE GRIEVANCE FILED BY MRS. BROGIOLI, /3/ THE AWARD IS
ARBITRARY AND CAPRICIOUS. HOWEVER, THE UNION'S PETITION FURNISHES NO
FACTS OR CIRCUMSTANCES TO SHOW THAT THE PARTIES HAD SUBMITTED MRS.
BROGIOLI'S GRIEVANCE TO THE ARBITRATOR. ON THE CONTRARY, THE AWARD
SHOWS THAT AFTER THE ARBITRATOR WAS SELECTED TO DECIDE THE UNION'S
GRIEVANCE, THE UNION REQUESTED THE AGENCY TO AGREE TO JOIN MRS.
BROGIOLI'S GRIEVANCE WITH THE UNION'S GRIEVANCE SO IT COULD BE HEARD BY
THE ARBITRATOR AT THE SAME HEARING. THE REGION REFUSED ON THE GROUND
THAT THE TWO GRIEVANCES RAISED SEPARATE ISSUES AND, THEREFORE, SHOULD BE
RESOLVED AT SEPARATE ARBITRATION HEARINGS, AND THERE IS NO SPECIFIC
INDICATION THAT THE UNION RENEWED BEFORE THE ARBITRATOR THE REQUEST TO
JOIN THE TWO GRIEVANCES. COURTS IN PRIVATE SECTOR CASES HOLD THAT THE
QUESTION OF WHETHER A SINGLE ARBITRATOR MAY CONSIDER MORE THAN ONE
GRIEVANCE IS A PROCEDURAL QUESTION TO BE LEFT TO FINAL DISPOSITION BY
THE ARBITRATOR. SEE, E.G., AMERICAN CAN CO. V. PAPERMAKERS AND
PAPERWORKERS, LOCAL 412, 356 F.SUPP. 495, 598, 82 LRRM 3055, 3057 (E.D.
PA. 1973) AND CASES CITED THEREIN. FURTHER, THE UNION HAS NOT FURNISHED
THE COUNCIL WITH ANY DECISIONS IN WHICH A COURT HAS SET ASIDE AN AWARD
IN THE PRIVATE SECTOR ON THE GROUND THAT THE ARBITRATOR TENDED TO
CONFINE THE SCOPE OF THE HEARING TO THE SUBSTANCE OF THE GRIEVANCE HE
WAS COMMISSIONED TO RESOLVE AND REFUSED TO CONSIDER AN ISSUE IN A
GRIEVANCE WHICH WAS NOT BEFORE HIM; WE FIND NONE. THEREFORE, THE
UNION'S SECOND EXCEPTION DOES NOT ASSERT A GROUND SIMILAR TO THOSE UPON
WHICH CHALLENGES TO LABOR ARBITRATION AWARDS ARE SUSTAINED BY COURTS IN
PRIVATE SECTOR CASES.
ACCORDINGLY, THE UNION'S PETITION IS DENIED BECAUSE IT FAILS TO MEET
THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.32 OF THE
COUNCIL'S RULES OF PROCEDURE.
BY THE COUNCIL.
CC: PHILIP J. DIBENEDETTO
SSA
/1/ SECTION 6 OF ARTICLE 6 (UNION-MANAGEMENT RELATIONS AT THE BDOO
REGIONAL LEVEL) PROVIDES:
THE REGION AGREES TO CONSULT THE UNION ON THE FORMULATION OF NEW OR
REVISED PERSONNEL
POLICIES AND PROCEDURES OR OF PLANS FOR CHANGES IN WORKING
CONDITIONS.
/2/ THE UNION'S PETITION SHOWS THAT, IN A JOINT LETTER TO THE FEDERAL
MEDIATION AND CONCILIATION SERVICE, THE PARTIES STATED THAT THEY HAD
"FAILED TO ARRIVE AT A MUTUALLY ACCEPTABLE APPLICATION OF ARTICLE 6,
SECTION 6," OF THE AGREEMENT, AND, THEREFORE, REQUESTED A LIST OF
ARBITRATORS.
/3/ MRS. BROGIOLI HAD FILED A GRIEVANCE WHICH, ACCORDING TO THE
ARBITRATOR, OVERLAPPED THE UNION'S GRIEVANCE IN SOME RESPECTS BUT WAS
SEPARATE IN OTHERS. THE ARBITRATOR NOTED THAT THE AGREEMENT PROVIDED
FOR DIFFERENT PROCESSING OF THE TWO GRIEVANCES: WHILE THE UNION'S
GRIEVANCE HAD BEEN PROCESSED THROUGH A QUICKER PROCEDURE ESTABLISHED BY
THE AGREEMENT FOR "UNION-MANAGEMENT" DISPUTES, MRS. BROGIOLI'S GRIEVANCE
WAS PROCESSED THROUGH THE PROCEDURE FOR "EMPLOYEE INITIATED" GRIEVANCES
AND HAD NOT BEEN SUBMITTED TO ARBITRATION.
2 FLRC 293; FLRC NO. 73A-67; DECEMBER 6, 1974.
NATIONAL COUNCIL OF OEO
LOCALS, AFGE, AFL-CIO
AND
OFFICE OF ECONOMIC OPPORTUNITY
(SYNOPSIS) FLRC NO. 73A-67
NATIONAL COUNCIL OF OEO LOCALS, AFGE, AFL-CIO, AND OFFICE OF ECONOMIC
OPPORTUNITY (HARKLESS, ARBITRATOR). THE UNION FILED A GRIEVANCE
ALLEGING THAT A POSITION HAD BEEN FILLED IN A MANNER VIOLATIVE OF
CONTRACTUAL MERIT PROMOTION PROCEDURES, AND REQUESTED REMOVAL OF THE
INCUMBENT AND REFILLING OF THE POSITION IN A MANNER CONSISTENT WITH THE
AGREEMENT. THE AGENCY VACATED THE CONTESTED POSITION, BUT REFUSED TO
ACCEDE TO THE UNION'S DEMAND THAT THE AGENCY REFILL THE POSITION.
FOLLOWING SUBMISSION OF THE DISPUTE TO ARBITRATION, THE ARBITRATOR
ISSUED AN AWARD, FINDING THAT MANAGEMENT ONCE HAVING DECIDED TO FILL THE
POSITION COULD NOT CHANGE ITS DECISION ABSENT A SHOWING OF NEW
CONDITIONS SUFFICIENT TO CONVINCE THE ARBITRATOR THAT A CHANGE WAS
WARRANTED. HE FURTHER FOUND THAT SUCH SHOWING WAS NOT MADE IN THIS CASE
AND (1) DIRECTED THE AGENCY TO FILL THE POSITION IN QUESTION; AND (2)
UNDER PROVISION OF THE PARTIES' AGREEMENT, ASSESSED THE COSTS OF THE
ARBITRATION TO THE AGENCY. THE COUNCIL ACCEPTED THE AGENCY'S PETITION
FOR REVIEW OF THE AWARD (REPORT NO. 51.).
COUNCIL ACTION (DECEMBER 6, 1974). THE COUNCIL HELD AS TO (1) THAT
IN THE CIRCUMSTANCES OF THE CASE THE ARBITRATOR'S AWARD IMPROPERLY
LIMITED MANAGEMENT'S AUTHORITY TO DECIDE AND ACT UNDER SECTION 12(B)(2)
OF THE ORDER AND THEREFORE SET ASIDE THE ARBITRATOR'S DIRECTION THAT THE
POSITION BE FILLED. HOWEVER, AS TO (2), THE COUNCIL FOUND NO GROUNDS
WERE ADDUCED TO SUPPORT DISTURBING THE ARBITRATOR'S AWARD ASSESSING
COSTS AGAINST THE AGENCY. THEREFORE, PURSUANT TO SECTION 2411.37(B) OF
THE COUNCIL'S RULES OF PROCEDURE (5 CFR 2411.37(B)), THE COUNCIL
MODIFIED THE AWARD CONSISTENT WITH ITS DECISION.
THIS APPEAL AROSE PRIMARILY FROM THE REMEDY AWARDED BY THE ARBITRATOR
FOR THE AGENCY'S FAILURE, AS HE FOUND, TO COMPLY WITH PROVISIONS OF THE
PARTIES' COLLECTIVE BARGAINING AGREEMENT WHICH SET FORTH MERIT PROMOTION
PROCEDURES TO BE FOLLOWED IN FILLING VARIOUS POSITIONS WITHIN THE
AGENCY.
THE NATIONAL COUNCIL OF OEO LOCALS, AFGE, AFL-CIO (THE UNION) FILED A
GRIEVANCE ALLEGING THAT THE OFFICE OF ECONOMIC OPPORTUNITY (OEO) HAD
FILLED TWO GS-15 POSITIONS IN THE AGENCY IN A MANNER WHICH VIOLATED
MERIT PROMOTION PROCEDURES UNDER THE PARTIES' AGREEMENT. AS A REMEDY
THE UNION REQUESTED REMOVAL OF THE INCUMBENTS FROM THE TWO POSITIONS;
AND THE REFILLING OF THE POSITIONS IN A MANNER CONSISTENT WITH THE
PROCEDURES CONTAINED IN THE PARTIES' AGREEMENT.
BEFORE THE GRIEVANCE WENT TO ARBITRATION, THE AGENCY VACATED THE TWO
CONTESTED POSITIONS, REFILLING ONE OF THEM AND REFUSING AT THAT TIME TO
TAKE ANY ACTION TO FILL THE OTHER. THUS, AT THE TIME OF THE ARBITRATION
HEARING, THE ONE UNFILLED POSITION (CHIEF, EVALUATION DIVISION, OFFICE
OF LEGAL SERVICES) REMAINED IN DISPUTE AND WAS THE PRINCIPAL SUBJECT OF
THE ARBITRATOR'S AWARD.
THE ARBITRATOR UPHELD THE UNION'S GRIEVANCE /1/ AND, GRANTING THE
REMEDY REQUESTED BY THE UNION, DIRECTED MANAGEMENT TO "FORTHWITH TAKE
PROPER ACTION TO FILL THE POSITION . . . ." ALSO, UNDER PROVISIONS OF
THE PARTIES' AGREEMENT, THE ARBITRATOR ASSESSED THE COSTS OF THE
ARBITRATION TO OEO.
THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD WITH
THE COUNCIL ALLEGING PRINCIPALLY THAT (1) INSOFAR AS THE AWARD DIRECTS
MANAGEMENT TO FILL THE POSITION IN QUESTION IT CONFLICTS WITH RIGHTS
RESERVED TO MANAGEMENT UNDER SECTION 12(B) OF THE ORDER AND SHOULD BE
SET ASIDE; AND (2) IN CONJUNCTION THEREWITH, THE COSTS OF THE
ARBITRATION SHOULD BE ASSESSED TO THE UNION AS THE LOSING PARTY. THE
COUNCIL ACCEPTED THE AGENCY'S PETITION FOR REVIEW. /2/ NEITHER PARTY
FILED A BRIEF.
SECTION 2411.37(A) OF THE COUNCIL'S RULES OF PROCEDURE PROVIDES THAT:
(A) AN AWARD OF AN ARBITRATOR SHALL BE MODIFIED, SET ASIDE IN WHOLE
OR IN PART, OR REMANDED
ONLY ON GROUNDS THAT THE AWARD VIOLATES APPLICABLE LAW, APPROPRIATE
REGULATION, OR THE ORDER,
OR OTHER GROUNDS SIMILAR TO THOSE APPLIED BY THE COURTS IN PRIVATE
SECTOR LABOR-MANAGEMENT
RELATIONS.
THE TWO QUESTIONS BEFORE THE COUNCIL ARE: (1) WHETHER THE PORTION OF
THE ARBITRATOR'S AWARD DIRECTING MANAGEMENT TO FILL THE POSITION IN
QUESTION CONFLICTS WITH RIGHTS RESERVED TO MANAGEMENT UNDER SECTION
12(B) OF THE ORDER, AND, THEREFORE, MUST BE SET ASIDE; AND, (2) IF SO,
WHETHER THE PORTION OF THE AWARD ASSESSING COSTS OF THE ARBITRATION TO
THE AGENCY SHOULD BE SET ASIDE. THESE QUESTIONS ARE DISCUSSED,
SEPARATELY, BELOW.
1. DOES THE AWARD CONFLICT WITH SECTION 12(B) OF THE ORDER?
SECTION 12(B)(2) OF THE ORDER /3/ PROVIDES AS FOLLOWS:
SEC. 12. BASIC PROVISIONS OF AGREEMENTS. EACH AGREEMENT BETWEEN AN
AGENCY AND A LABOR
ORGANIZATION IS SUBJECT TO THE FOLLOWING REQUIREMENTS--
(B) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN
ACCORDANCE WITH APPLICABLE LAWS
AND REGULATIONS--
(2) TO HIRE, PROMOTE, TRANSFER, ASSIGN, AND RETAIN EMPLOYEES IN
POSITIONS WITHIN THE AGENCY
. . . .
AS TO THE MEANING OF SECTION 12(B)(2), THE COUNCIL, IN ITS DECISIONS,
CONSISTENTLY HAS EMPHASIZED THAT THE RIGHTS RESERVED TO MANAGEMENT
OFFICIALS UNDER THAT SECTION OF THE ORDER ARE MANDATORY AND CANNOT BE
BARGAINED AWAY. THUS, IN ITS VA RESEARCH HOSPITAL DECISION, THE COUNCIL
STATED AS FOLLOWS: /4/
SECTION 12(B)(2) DICTATES THAT IN EVERY LABOR AGREEMENT MANAGEMENT
OFFICIALS RETAIN THEIR
EXISTING AUTHORITY TO TAKE CERTAIN PERSONNEL ACTIONS, I.E., TO HIRE,
PROMOTE, ETC. THE
EMPHASIS IS ON THE RESERVATION OF MANAGEMENT AUTHORITY TO DECIDE AND
ACT ON THESE MATTERS, AND
THE CLEAR IMPORT IS THAT NO RIGHT ACCORDED TO UNIONS UNDER THE ORDER
MAY BE PERMITTED TO
INTERFERE WITH THAT AUTHORITY . . . .
IN THE PRESENT CASE, AS ALREADY INDICATED, THE AGENCY CAUSED THE
POSITION IN QUESTION TO BE VACATED WHEN FACED WITH A UNION GRIEVANCE
ALLEGING THAT THE POSITION HAD BEEN FILLED IN A MANNER VIOLATIVE OF
CONTRACTUAL MERIT PROMOTION PROCEDURES; /5/ BUT REFUSED TO ACCEDE TO
THE UNION'S DEMAND THAT THE AGENCY TAKE ACTION TO REFILL THE POSITION.
THE ARBITRATOR, IN REACHING HIS AWARD SUSTAINED THE GRIEVANCE AND
DIRECTING THE AGENCY TO FILL THE POSITION IN QUESTION, STATED THAT:
(T)HERE IS NOTHING IN ARTICLE 4 OF THE AGREEMENT /6/ OR IN EXECUTIVE
ORDER 11491 WHICH
PREVENTS A RULING ON THE UNION'S REQUEST THAT MANAGEMENT MUST FILL
THE DISPUTED POSITION
EITHER BY MERIT PROMOTION OR REASSIGNMENT USING MERIT FACTORS. TO BE
SURE MANAGEMENT RETAINS
THE RIGHT UNDER THE EXECUTIVE ORDER AND IN ARTICLE 4 OF THE AGREEMENT
'TO DIRECT EMPLOYEES OF
THE AGENCY . . . PROMOTE, TRANSFER, ASSIGN AND RETAIN EMPLOYEES IN
POSITIONS WITHIN THE
AGENCY' . . . . THIS IS NOT A SITUATION, HOWEVER, WHERE THE UNION IS
ASKING THE ARBITRATOR TO
REQUIRE MANAGEMENT TO DETERMINE TO FILL THE SUPERVISORY POSITION IN
QUESTION HERE. RATHER,
MANAGEMENT MADE THIS DECISION PRIOR TO THE FILING OF THE GRIEVANCE.
(FOOTNOTE SUPPLIED.)
THE ARBITRATOR FURTHER FOUND CONTRARY TO THE AGENCY'S ASSERTIONS
THAT, IN HIS OPINION, THE CURRENT SITUATION, IN REGARD TO THE NEED FOR
THE POSITION IN QUESTION, WAS NOT SO DIFFERENT FROM THE SITUATION
EXISTING WHEN THE AGENCY HAD IMPROPERLY FILLED THE POSITION THAT
MANAGEMENT WOULD BE WARRANTED IN "MAKING A NEW DETERMINATION THAT THE
POSITION IS NO LONGER NEEDED." THUS, HE CONCLUDED IN EFFECT, THAT
MANAGEMENT, ONCE HAVING EXERCISED ITS RIGHT TO DECIDE TO FILL THE
POSITION, COULD NOT CHANGE ITS DECISION ABSENT A SHOWING OF "NEW
CONDITIONS" OF SUFFICIENT MAGNITUDE TO CONVINCE THE ARBITRATOR THAT A
CHANGE WAS WARRANTED.
IN OUR VIEW, THE ARBITRATOR'S INTERPRETATION AND APPLICATION OF
ARTICLE 4 OF THE AGREEMENT (INCORPORATING, AS ALREADY INDICATED, THE
LANGUAGE OF SECTION 12(B) OF THE ORDER) IS INCONSISTENT WITH THE MEANING
OF THE ORDER IN THAT IT FAILS TO RECOGNIZE THAT, IMPLICIT AND
COEXTENSIVE WITH MANAGEMENT'S CONCEDED AUTHORITY TO DECIDE TO TAKE AN
ACTION UNDER SECTION 12(B)(2), IS THE AUTHORITY TO DECIDE NOT TO TAKE
SUCH ACTION, OR TO CHANGE ITS DECISION, ONCE MADE, WHETHER OR NOT TO
TAKE SUCH ACTION. IT IS CLEAR FROM THE LANGUAGE AND HISTORY OF THE
ORDER, AS WELL AS FROM PREVIOUS COUNCIL DECISIONS AS ALREADY NOTED, THAT
NO INTERFERENCE WITH MANAGEMENT'S AUTHORITY TO DECIDE AND ACT WITH
RESPECT TO THE MATTERS ENUMERATED IN SECTION 12(B)(2) MAY BE PERMITTED
UNDER THE ORDER.
THE ARBITRATOR'S AWARD, IN THE CIRCUMSTANCES PRESENTED BY THIS CASE,
WOULD LIMIT MANAGEMENT'S AUTHORITY TO DECIDE AND ACT UNDER SECTION
12(B)(2) WITH REGARD TO FILLING A POSITION BY CONDITIONING MANAGEMENT'S
AUTHORITY TO DETERMINE NOT TO FILL THE POSITION IN QUESTION UPON
MANAGEMENT'S ABILITY TO JUSTIFY ITS DECISION TO THE ARBITRATOR'S
SATISFACTION. THUS, THE PORTION OF THE ARBITRATOR'S AWARD DIRECTING
MANAGEMENT TO FILL THE POSITION IN QUESTION INTERFERES WITH MANAGEMENT'S
RESERVED AUTHORITY TO DECIDE WHETHER OR NOT TO HIRE, PROMOTE, TRANSFER
OR ASSIGN EMPLOYEES UNDER SECTION 12(B)(2) OF THE ORDER. HOWEVER,
MANAGEMENT'S RESERVED RIGHTS UNDER SECTION 12(B) MAY NOT BE INFRINGED BY
AN ARBITRATOR'S AWARD UNDER A NEGOTIATED GRIEVANCE PROCEDURE. /7/
THEREFORE, THE PORTION OF THE AWARD DIRECTING MANAGEMENT TO FILL THE
POSITION IN QUESTION CANNOT BE PERMITTED TO STAND. /8/
2. COSTS OF THE ARBITRATION. IN HIS AWARD, THE ARBITRATOR STATED,
"UNDER ARTICLE 17, SECTION 4 (OF THE AGREEMENT) THE COSTS OF THE
ARBITRATION ARE ASSESSED TO OEO." THE CITED PROVISION OF THE AGREEMENT
PROVIDES IN RELEVANT PART THAT CERTAIN FEES, EXPENSES AND COSTS INCIDENT
TO AN ARBITRATION SHALL BE BORNE BY THE LOSING PARTY.
IN THE CIRCUMSTANCES OF THE PRESENT CASE, WHERE THE ARBITRATOR
SUSTAINED THE UNION'S GRIEVANCE AND THE AGENCY HAS SUCCESSFULLY EXCEPTED
TO PART OF THE REMEDY GRANTED BY THE ARBITRATOR, WE FIND THAT NO GROUNDS
HAVE BEEN ADDUCED (UNDER SECTION 2411.37(A) OF THE COUNCIL'S RULES OF
PROCEDURE AS PREVIOUSLY SET FORTH HEREIN) TO SUPPORT OUR DISTURBING THE
ARBITRATOR'S AWARD WHICH ASSESSES COSTS AGAINST THE AGENCY. MERELY
BECAUSE ONE PART OF THE REMEDY AWARDED BY THE ARBITRATOR IS SET ASIDE
DOES NOT NECESSARILY AFFECT THE OTHER PARTS OF THE AWARD. THAT IS, OUR
DECISION HEREIN, SETTING ASIDE IN PART THE REMEDY AWARDED BY THE
ARBITRATOR, DOES NOT ALTER HIS HAVING SUSTAINED THE UNION'S GRIEVANCE;
AND NO INDEPENDENT GROUNDS ARE ESTABLISHED BY THE AGENCY OR OTHERWISE
APPARENT WHICH WOULD WARRANT THE COUNCIL'S DISTURBING IN ANY WAY THE
ARBITRATOR'S ASSESSMENT OF COSTS OF THE ARBITRATION TO OEO. THEREFORE,
THIS PORTION OF THE ARBITRATOR'S AWARD IS SUSTAINED.
FOR THE FOREGOING REASONS, WE FIND THAT (1) THE ARBITRATOR'S AWARD,
INSOFAR AS IT DIRECTS THE AGENCY TO "FORTHWITH TAKE PROPER ACTION TO
FILL THE POSITION OF CHIEF, EVALUATION DIVISION, OFFICE OF LEGAL
SERVICES," VIOLATES THE ORDER BY INTERFERING WITH RIGHTS RESERVED TO
MANAGEMENT OFFICIALS UNDER SECTION 12(B)(2); AND (2) NO GROUNDS WERE
ADDUCED BY THE AGENCY TO SUPPORT THE COUNCIL'S SETTING ASIDE THE
ARBITRATOR'S ASSESSMENT TO THE AGENCY OF THE COSTS OF THE ARBITRATION
UNDER PROVISIONS OF THE PARTIES' AGREEMENT. ACCORDINGLY, PURSUANT TO
SECTION 2411.37(B) OF THE COUNCIL'S RULES OF PROCEDURE, WE MODIFY THE
ARBITRATOR'S AWARD BY STRIKING THE PENULTIMATE SENTENCE THEREOF WHICH
READS:
MANAGEMENT SHALL FORTHWITH TAKE PROPER ACTION TO FILL THE POSITION OF
CHIEF, EVALUATION
DIVISION, OFFICE OF LEGAL SERVICES.
AS SO MODIFIED, THE AWARD IS SUSTAINED AND THE STAY IS VACATED.
BY THE COUNCIL.
ISSUED: DECEMBER 6, 1974
/1/ THE MATTER GRIEVED BY THE UNION AS STATED BY THE ARBITRATOR WAS,
"THAT MANAGEMENT HAD IMPROPERLY FILLED TWO GS-15 POSITIONS WITHOUT
UTILIZING REQUIRED MERIT PROMOTION PROCEDURES."
/2/ OEO REQUESTED AND THE COUNCIL GRANTED, PURSUANT TO SECTION
2411.47(D) OF THE COUNCIL'S RULES OF PROCEDURE, A STAY PENDING THE
DETERMINATION OF THE APPEAL.
/3/ ALTHOUGH THE AGENCY ALLEGED, IN PARTICULAR, VIOLATIONS OF
SECTIONS 12(B)(4) AND (5) OF THE ORDER, THE COUNCIL FINDS IT UNNECESSARY
TO PASS ON THESE ALLEGATIONS IN VIEW OF ITS DECISION HEREIN UNDER
SECTION 12(B)(2).
/4/ VETERANS ADMINISTRATION INDEPENDENT SERVICE EMPLOYEES UNION AND
VETERANS ADMINISTRATION RESEARCH HOSPITAL, CHICAGO, ILLINOIS, FLRC NO.
74A-31 (NOVEMBER 22, 1972), REPORT NO. 31, AT P. 3; ACCORD, VETERANS
ADMINISTRATION HOSPITAL, CANANDAIGUA, NEW YORK AND LOCAL 227, SERVICE
EMPLOYEES INTERNATIONAL UNION, BUFFALO, NEW YORK (MILLER, ARBITRATOR),
FLRC NO. 73A-42 (JULY 31, 1974), REPORT NO. 55, AT PP. 8-9; AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1966 AND VETERANS
ADMINISTRATION HOSPITAL, LEBANON, PENNSYLVANIA, FLRC NO. 72A-41
(DECEMBER 12, 1973), REPORT NO. 46, AT PP. 5-7; TIDEWATER VIRGINIA
FEDERAL EMPLOYEES METAL TRADES COUNCIL AND NAVAL PUBLIC WORKS CENTER,
NORFOLK, VIRGINIA, FLRC NO. 71A-56 (JUNE 29, 1973), REPORT NO. 41, AT
PP. 4-7.
/5/ OEO IN EFFECT ADMITS THAT IT VIOLATED THE PARTIES' AGREEMENT AS
ALLEGED IN THE GRIEVANCE. IN THIS REGARD, OEO'S PETITION FOR COUNCIL
REVIEW IN THIS CASES STATES, FOR EXAMPLE:
THROUGHOUT THE ARBITRATION PROCEEDING, OEO MAINTAINED THE POSITION
THAT THE VIOLATION OF
THE CONTRACT HAD BEEN CORRECTED AND THE GRIEVANCE, THEREFORE, MOOTED
WHEN THE TWO IMPROPERLY
APPOINTED INDIVIDUALS WERE REMOVED FROM THE CONTESTED POSITIONS.
/6/ ARTICLE 4 OF THE AGREEMENT, ENTITLED "EMPLOYER RIGHTS," REPEATS
IN SUBSTANCE THE WORDING OF SECTION 12 OF THE ORDER, AMONG OTHER THINGS.
/7/ PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION AND FEDERAL
AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION (BRITTON,
ARBITRATOR) FLRC NO. 74A-1 (JUNE 24, 1974), REPORT NO. 53 AT P. 4 OF THE
COUNCIL'S DECISION LETTER.
/8/ THE CIRCUMSTANCES IN THE INSTANT CASE ARE DISTINGUISHED FROM
THOSE PRESENT IN INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
WORKERS, ARSENAL LODGE NO. 81, AFL-CIO AND ROCK ISLAND ARSENAL, ROCK
ISLAND, ILLINOIS (SEMBOWER, ARBITRATOR), FLRC NO. 73A-29 (DECEMBER 12,
1973), REPORT NO. 46, WHERE THE COUNCIL DENIED REVIEW OF THE
ARBITRATOR'S AWARD WHICH DIRECTED, IN PART, THAT MANAGEMENT FILL A
VACANCY "IN ACCORDANCE WITH REGULATIONS AND THE NEGOTIATED AGREEMENT."
THAT IS, IN ROCK ISLAND, THE AGENCY'S CONTINUING INTENTION TO FILL THE
POSITION THERE INVOLVED WAS CLEAR AND UNQUESTIONED.
2 FLRC 288; FLRC NO. 74A-17; DECEMBER 5, 1974.
MR. REX L. CAREY, PRESIDENT
LOCAL 2649, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
1100 COMMERCE STREET
DALLAS, TEXAS 75202
(SYNOPSIS) FLRC NO. 74A-17
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2649 AND
OFFICE OF ECONOMIC OPPORTUNITY (SISK, ARBITRATOR). THE PARTIES
SUBMITTED TO ARBITRATION A GRIEVANCE REQUESTING BACKPAY FOR THE GRIEVANT
WHOSE PROMOTION WAS DELAYED 4 MONTHS FOR VARIOUS REASONS INCLUDING THE
COMPLETION OF A CURRENT POSITION DESCRIPTION FOR THE POSITION INVOLVED.
THE UNION ALLEGED THAT THE AGENCY HAD VIOLATED A PROVISION IN THE
NEGOTIATED GRIEVANCE WHICH REQUIRED THAT THE PARTIES "PROCEED IN
ACCORDANCE WITH AND ABIDE BY ALL . . . REGULATIONS OF THE EMPLOYER . .
. IN MATTERS RELATING TO THE EMPLOYMENT OF EMPLOYEES COVERED BY THIS
AGREEMENT." THE ARBITRATOR DETERMINED THAT, BECAUSE AN AGENCY REGULATION
REQUIRED COMPLETION OF A CURRENT POSITION DESCRIPTION BEFORE A PROMOTION
COULD BE PROCESSED AND BECAUSE THE COLLECTIVE BARGAINING AGREEMENT
REQUIRED THE PARTIES TO PROCEED IN ACCORDANCE WITH ALL AGENCY
REGULATIONS, THE AGENCY'S ACTION WAS IN COMPLIANCE WITH THE AGREEMENT.
FURTHER, HE DETERMINED THAT THE DELAY WAS NOT, UNDER THE CIRCUMSTANCES,
UNDUE OR UNREASONABLE. THE UNION FILED AN EXCEPTION WITH THE COUNCIL,
ALLEGING IN SUBSTANCE (AS IT HAD BEFORE THE ARBITRATOR) THAT AN AGENCY
STAFF MANUAL REQUIRED THE PROMOTION TO BE PROCESSED IN 8 WORKING DAYS
AND THAT THE AGENCY VIOLATED THE STAFF MANUAL WHICH ASSERTEDLY IS AN
AGENCY REGULATION AND THEREFORE VIOLATED THE AGREEMENT; AND ARGUING
THAT THE AWARD THEREBY VIOLATES AN "APPROPRIATE REGULATION" UNDER THE
COUNCIL'S RULES.
COUNCIL ACTION (DECEMBER 5, 1974). THE COUNCIL DETERMINED, WITHOUT
PASSING ON WHETHER THE AGENCY STAFF MANUAL IS AN "APPROPRIATE
REGULATION" AS THAT TERM IS USED IN SECTION 2411.32 OF THE COUNCIL'S
RULES OF PROCEDURE (5 CFR 2411.32), THAT THE UNION'S EXCEPTION DOES NOT
APPEAR TO BE SUPPORTED BY FACTS AND CIRCUMSTANCES DESCRIBED IN THE
UNION'S PETITION, AS REQUIRED BY SECTION 2411.32. MOREOVER, THE COUNCIL
WAS OF THE OPINION THAT THE UNION IN SUBSTANCE WAS SIMPLY CONTENDING
THAT THE ARBITRATOR REACHED AN INCORRECT RESULT IN HIS INTERPRETATION OF
THE AGREEMENT-- A MATTER THE COUNCIL, LIKE THE COURTS, HAS HELD TO BE
LEFT TO THE ARBITRATOR'S JUDGMENT. FURTHER, THE COUNCIL HELD, CONTRARY
TO THE UNION'S CONTENTION, THAT AN AWARD ISSUED BY ANOTHER ARBITRATOR
INVOLVING A DIFFERENT GRIEVANCE IS WITHOUT CONTROLLING SIGNIFICANCE.
THE COUNCIL THEREFORE DENIED REVIEW OF THE UNION'S PETITION BECAUSE IT
FAILED TO MEET THE STANDARDS SET FORTH IN SECTION 2411.32 OF THE
COUNCIL'S RULES (5 CFR 2411.32).
DEAR MR. CAREY:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ARBITRATOR'S AWARD, WHICH DENIED A GRIEVANCE REQUESTING RETROACTIVE PAY
FOR A PERIOD PRIOR TO THE GRIEVANT'S PROMOTION, FILED IN THE
ABOVE-ENTITLED CASE, AND THE AGENCY'S OPPOSITION THERETO.
BASED ON THE FACTS DESCRIBED IN THE AWARD, IT APPEARS THAT THE
GRIEVANCE HAD ITS GENESIS IN THE AGENCY'S ANNOUNCEMENT OF A VACANCY IN
THE POSITION OF PUBLIC INFORMATION SPECIALIST, GS-5/7, WHICH SET FORTH
THE DIFFERENTIATION IN THE QUALIFICATIONS FOR THE GS-5 AND GS-7 LEVELS
OF THE POSITION. MRS. FRANCES D. COPPEDGE WAS SELECTED. SHE WAS
REASSIGNED FROM THE POSITION OF CLERK STENOGRAPHER, GS-5, TO PUBLIC
INFORMATION SPECIALIST, GS-5, EFFECTIVE DECEMBER 15, 1972. ON SEPTEMBER
27, 1973, MRS. COPPEDGE FILED THE INSTANT WRITTEN GRIEVANCE REQUESTING A
PROMOTION TO PUBLIC INFORMATION SPECIALIST, GS-7. EARLY IN SEPTEMBER
1973, A FORM SF-52 REQUESTING HER PROMOTION TO THE GS-7 LEVEL WAS
FORWARDED TO THE REGIONAL PERSONNEL OFFICE WHERE, ACCORDING TO THE
ARBITRATOR, SUCH REQUESTS "NORMALLY . . . ARE PROCESSED WITHIN A PERIOD
OF THIRTY DAYS." HOWEVER, THE FORM SF-52 FOR THE GRIEVANT WAS NOT
PROCESSED WITHIN THAT PERIOD BECAUSE THERE WAS NO CURRENT POSITION
DESCRIPTION FOR PUBLIC INFORMATION SPECIALIST AT THE GS-7 LEVEL. ON
JANUARY 3, 1974, A CURRENT POSITION DESCRIPTION FOR A PUBLIC INFORMATION
SPECIALIST, GS-7, WAS PREPARED, AND THE GRIEVANT WAS PROMOTED TO THE
GS-7 POSITION, EFFECTIVE JANUARY 20, 1974. THE ARBITRATOR CONCLUDED
THAT THE DELAY OF APPROXIMATELY 4 MONTHS IN THE PROCESSING OF HER
PROMOTION OCCURRED, IN PART, FOR THE FOLLOWING REASONS: (1) NO CURRENT
POSITION DESCRIPTION EXISTED WHEN THE FORM SF-52 WAS SUBMITTED ON
SEPTEMBER 17, 1973; (2) WHILE A FREEZE ON PROMOTIONS WAS LIFTED ON
AUGUST 27, 1973, THE INSTRUCTIONS NECESSARY TO IMPLEMENT RECOMMENDED
PROMOTIONS WERE NOT RECEIVED IN THE FIELD UNTIL SEPTEMBER 28, 1973, AT
WHICH TIME THE HEADQUARTERS OF THIS REGION WAS PREPARING PLANS FOR
REORGANIZATION; (3) THE REORGANIZATION PLANS WERE APPROVED ON OCTOBER
28, 1973; IT WAS NOT KNOWN UNTIL THEN THAT THE PUBLIC INFORMATION
SPECIALIST POSITION HELD BY THE GRIEVANT WOULD CONTINUE; (4) THE
INFORMATION FROM THE GRIEVANT REQUIRED FOR PREPARATION OF A CURRENT
POSITION DESCRIPTION WAS NOT RECEIVED UNTIL DECEMBER 19, 1974; AND (5)
A CURRENT POSITION DESCRIPTION FOR A PUBLIC INFORMATION SPECIALIST WAS
PREPARED ON JANUARY 3, 1974.
AT THE ARBITRATION HEARING, THE UNION CONTESTED ONLY THE TIMELINESS
OF THE GRIEVANT'S PROMOTION. THE PARTIES STIPULATED THAT THE ARBITRATOR
WAS TO DECIDE THE FOLLOWING ISSUE:
WAS THE DELAY IN THE PROMOTION OF THE GRIEVANT FROM PUBLIC
INFORMATION SPECIALIST GS-5 TO
PUBLIC INFORMATION SPECIALIST GS-7 THE RESULT OF ARBITRARY,
CAPRICIOUS, DISCRIMINATORY, OR
MALICIOUS ACTIONS ON THE PART OF THE EMPLOYER?
THE UNION, ACCORDING TO ITS PETITION, CONTENDED BEFORE THE ARBITRATOR
THAT AN AGENCY STAFF MANUAL (OEO STAFF MANUAL 250-2) /1/ PROVIDED FOR A
TOTAL OF 8 WORKING DAYS FOR THE PERSONNEL DIVISION TO PROCESS PROMOTIONS
OF THE CAREER LADDER TYPE; THAT THE STAFF MANUAL WAS A REGULATION OF
THE AGENCY; AND THAT, THEREFORE, THE DELAY OF 4 MONTHS IN PROCESSING
THE GRIEVANT'S PROMOTION VIOLATED ARTICLE 2, SECTION 2, /2/ OF THE
COLLECTIVE BARGAINING AGREEMENT, AND CONSTITUTED AN UNDUE AND ARBITRARY
ACTION. AS A REMEDY, THE UNION SOUGHT BACKPAY FOR THE GRIEVANT PRIOR TO
HER PROMOTION ON JANUARY 20, 1974, AT THE GS-7 LEVEL FOR SOME PERIOD
BEGINNING ON VARIOUS DATES BETWEEN JANUARY 31 AND SEPTEMBER 27, 1973.
IN HIS AWARD, THE ARBITRATOR DETERMINED IN ESSENCE THAT THE AGENCY'S
REQUIREMENT FOR A CURRENT POSITION DESCRIPTION WAS AN AGENCY REGULATION
WITHIN THE MEANING OF ARTICLE 2, SECTION 2, OF THE AGREEMENT AND,
THEREFORE, THE AGENCY'S DELAY IN PROCESSING THE GRIEVANT'S PROMOTION
UNTIL OBTAINING THE REQUIRED DESCRIPTION WAS IN COMPLIANCE WITH ARTICLE
2, SECTION 2. THE ARBITRATOR DETERMINED THAT THE AGENCY'S DELAY FOR
APPROXIMATELY 4 MONTHS, FOR THE REASONS PREVIOUSLY DESCRIBED, WAS NOT AN
UNDUE OR UNREASONABLE DELAY. MOREOVER, HE DETERMINED THAT THE PERIOD OF
ONE YEAR IN GRADE AS A GS-5 SERVED BY THE GRIEVANT WAS NOT UNREASONABLE.
ACCORDINGLY, THE ARBITRATOR DENIED THE REMAINING PORTION OF THE
GRIEVANCE REQUESTION BACKPAY FOR THE GRIEVANT.
THE UNION REQUESTS THAT THE COUNCIL ACCEPT ITS PETITION FOR REVIEW OF
THE ARBITRATOR'S AWARD ON THE BASIS OF THE EXCEPTION DISCUSSED BELOW.
UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE, REVIEW OF
AN ARBITRATION AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON
THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE
EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES . . .
APPROPRIATE REGULATION . . . OR OTHER GROUNDS SIMILAR TO THOSE UPON
WHICH CHALLENGES TO ARBITRATION AWARDS ARE SUSTAINED BY COURTS IN
PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS."
THE UNION'S EXCEPTION CONTENDS THAT THE AWARD VIOLATES OEO STAFF
MANUAL 250-2 AND, THEREFORE, VIOLATES AN "APPROPRIATE REGULATION." IN
SUPPORT OF THIS CONTENTION, THE UNION'S PETITION PRESENTS A "SUMMARY OF
EVIDENCE AND ARGUMENTS" SUBMITTED BY THE UNION TO THE ARBITRATOR. THE
SOLE ARGUMENT IN THIS SUMMARY IS THE SAME CONTENTION WHICH, AS
PREVIOUSLY STATED, THE UNION MADE BEFORE THE ARBITRATOR, I.E., THAT THE
AGENCY, BY DELAYING THE PROCESSING OF THE GRIEVANT'S PROMOTION FOR 4
MONTHS, VIOLATED OEO STAFF MANUAL 250-2, WHICH ASSERTEDLY IS AN AGENCY
REGULATION, AND, THEREFORE, VIOLATED ARTICLE 2, SECTION 2, OF THE
AGREEMENT, AND ENGAGED IN AN UNDUE AND ARBITRARY ACT-- A CONTENTION
REJECTED BY THE ARBITRATOR.
WITHOUT PASSING UPON WHETHER THE AGENCY STAFF MANUAL IS AN
"APPROPRIATE REGULATION" AS THAT TERM IS USED IN SECTION 2411.32 OF THE
COUNCIL'S RULES, WE CONCLUDE THAT THE UNION'S EXCEPTION DOES NOT APPEAR
TO BE SUPPORTED BY FACTS AND CIRCUMSTANCES DESCRIBED IN THE UNION'S
PETITION, AS REQUIRED BY SECTION 2411.32. THE UNION HAS NOT SHOWN THAT
OEO STAFF MANUAL 250-2 IS AN AGENCY REGULATION WITHIN THE MEANING OF
ARTICLE 2, SECTION 2, OF THE AGREEMENT. AS PREVIOUSLY STATED, THE
MANUAL IS DESCRIBED IN ITS PREFACE AS A "GUIDE," AND THE TIME FRAMES
ESTABLISHED THEREIN ARE APPLICABLE "ONLY IF THE REQUEST (IN A FORM
SF-52) FOLLOWS A ROUTINE SCHEDULE," WHICH IS DEFINED AS MEANING THAT
"ALL NECESSARY FORMS, DOCUMENTS . . . ARE PROPERLY SIGNED AND RECEIVED
IN PERSONNEL WITH THE REQUEST . . . " MOREOVER, EVEN IF THE UNION HAD
ESTABLISHED THAT OEO STAFF MANUAL 250-2 IS AN AGENCY REGULATION WITHIN
THE MEANING OF ARTICLE 2, SECTION 2, OF THE AGREEMENT, THE UNION'S
CONTENTION APPEARS TO BE NO MORE THAN A REQUEST THAT THE COUNCIL REVIEW
THE MERITS OF THE ARBITRATOR'S AWARD.
AS PREVIOUSLY STATED, THE UNION RELIES ON A SUMMARY OF THE SAME
EVIDENCE AND ARGUMENTS WHICH THE UNION PRESENTED TO THE ARBITRATOR IN
ASKING HIM TO SUSTAIN ITS GRIEVANCE, SPECIFICALLY THE ARGUMENT THAT THE
AGENCY'S ACTION IN PROCESSING THE GRIEVANT'S PROMOTION ALLEGEDLY
VIOLATED OEO STAFF MANUAL 250-2, AND THEREBY VIOLATED ARTICLE 2, SECTION
2, OF THE AGREEMENT. BUT THE ARBITRATOR DETERMINED IN ESSENCE THAT THE
AGENCY'S ACTION IN PROCESSING THE GRIEVANT'S PROMOTION WAS IN COMPLIANCE
WITH, NOT IN VIOLATION OF, ARTICLE 2, SECTION 2, OF THE AGREEMENT.
THEREFORE, WHEN THE SUBSTANCE OF THE UNION'S PETITION IS CONSIDERED, WE
ARE OF THE OPINION THAT THE UNION IS SIMPLY CONTENDING THAT THE
ARBITRATOR REACHED AN INCORRECT RESULT IN HIS INTERPRETATION OF ARTICLE
2, SECTION 2, OF THE AGREEMENT. HOWEVER, THE COUNCIL HAS HELD, AS
COURTS CONSISTENTLY HAVE WITH RESPECT TO ARBITRATION IN THE PRIVATE
SECTOR, THAT THE INTERPRETATION OF CONTRACT PROVISIONS IS A MATTER TO BE
LEFT TO THE ARBITRATOR'S JUDGMENT. SEE, E.G., AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 12 AND U.S. DEPARTMENT OF LABOR (DALY,
ARBITRATOR,) FLRC NO. 72A-55 (SEPTEMBER 17, 1973), REPORT NO. 44. WHILE
THE UNION ADVERTS TO AN AWARD ISSUED IN A DIFFERENT GRIEVANCE BY ANOTHER
ARBITRATOR AS "CONTROLLING PRECEDENT," THAT AWARD IS NOT CONTROLLING ON
THE COUNCIL IN DECIDING WHETHER THE ARBITRATOR'S AWARD VIOLATES AN
APPROPRIATE REGULATION.
ACCORDINGLY, THE UNION'S PETITION FOR REVIEW IS DENIED BECAUSE IT
FAILS TO MEET THE STANDARDS FOR REVIEW SET FORTH IN SECTION 2411.32 OF
THE COUNCIL'S RULES.
BY THE COUNCIL.
CC: A. ARNETT
OEO
/1/ THE PREFACE OF THE AGENCY STAFF MANUAL STATES:
THIS PUBLICATION WAS PREPARED AS A GUIDE FOR ADMINISTRATIVE OFFICERS
AND OTHER OEO
EMPLOYEES WHO HAVE THE RESPONSIBILITY FOR INITIATING REQUESTS FOR
PERSONNEL ACTIONS. IT IS
DESIGNED TO STANDARDIZE THE PREPARATION AND PROCESSING OF PERSONNEL
DOCUMENTS.
THE AGENCY STAFF MANUAL IN.RELEVANT PART PROVIDES:
TIME FRAMES
TO EXPEDITE THE PROCESSING OF STANDARD FORM 52 THROUGH THE VARIOUS
STEPS, THE FOLLOWING
TIME FRAMES HAVE BEEN ESTABLISHED. THEY ARE APPLICABLE ONLY IF THE
REQUEST FOLLOWS A ROUTINE
SCHEDULE. THIS MEANS THAT ALL NECESSARY FORMS, DOCUMENTS AND
ADDITIONAL MEMORANDA ARE
PROPERLY SIGNED AND RECEIVED IN PERSONNEL WITH THE REQUEST AND THAT
NO CHANGES BE MADE BY THE
REQUESTING OFFICE.
/2/ SECTION 2 OF ARTICLE 2 (EMPLOYEE RIGHTS) PROVIDES:
THE PARTIES AGREE THAT THEY WILL PROCEED IN ACCORDANCE WITH AND ABIDE
BY ALL FEDERAL LAWS,
APPLICABLE STATE LAWS, REGULATIONS OF THE EMPLOYER, AND THIS
AGREEMENT, IN MATTERS RELATING TO
THE EMPLOYMENT OF EMPLOYEES COVERED BY THIS AGREEMENT.
2 FLRC 280; FLRC NO. 74A-2; DECEMBER 5, 1974.
LOCAL LODGE 2333, INTERNATIONAL ASSOCIATION
OF MACHINISTS AND AEROSPACE WORKERS
AND
WRIGHT-PATTERSON AIR FORCE BASE, OHIO
(SYNOPSIS) FLRC NO. 74A-2
LOCAL LODGE 2333, INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, AND WRIGHT-PATTERSON AIR FORCE BASE, OHIO. THE
DISPUTE CONCERNED THE NEGOTIABILITY UNDER THE ORDER OF UNION PROPOSALS
WHICH WOULD: (1) DEFINE CERTAIN TERMS USED IN POSITION DESCRIPTIONS;
(2) CONDITION THE ASSIGNMENT OF DUTIES TO EMPLOYEES ON THE "SCOPE OF THE
CLASSIFICATION ASSIGNED" TO SUCH EMPLOYEES AS DEFINED IN "APPROPRIATE
CLASSIFICATION STANDARDS;" AND (3) PROVIDE THE MEASUREMENT FOR GRADING
WAGE GRADE EMPLOYEES WHO PERFORM MIXED JOBS.
COUNCIL ACTION (DECEMBER 5, 1974). AS TO (1), THE COUNCIL, BASED ON
ITS DECISION IN THE LOUISVILLE NAVAL ORDNANCE CASE, FLRC NO. 73A-21,
REPORT NO. 48, FOUND THAT THE PROVISION IS NEGOTIABLE UNDER SECTION
11(A) OF THE ORDER. WITH RESPECT TO (2), THE COUNCIL, RELYING MAINLY ON
THE REASONING AND ANALYSIS IN ITS RECENT DECISION IN THE IMMIGRATION AND
NATURALIZATION SERVICE CASE, FLRC NO. 73A-25, REPORT NO. 57, HELD THAT
THE PROPOSAL WAS EXCEPTED FROM THE AGENCY'S OBLIGATION TO BARGAIN UNDER
SECTION 11(B) OF THE ORDER. LASTLY, AS TO (3), THE COUNCIL, BASED ON
CIVIL SERVICE COMMISSION ADVICE AS TO THE MEANING OF ITS OWN DIRECTIVES,
REJECTED THE AGENCY'S CONTENTION THAT THE PROPOSAL WOULD VIOLATE
COMMISSION REQUIREMENTS AND FOUND THE PROPOSAL NEGOTIABLE UNDER SECTION
11(A) OF THE ORDER. HOWEVER, TO AVOID ANY POSSIBLE MISUNDERSTANDING IN
THE LATTER REGARD, THE COUNCIL ADDED THAT IT WAS NOT HERE DECIDED THAT
DISPUTES OVER THE INTERPRETATION OR APPLICATION OF THE PROPOSAL, IF
AGREED UPON BY THE PARTIES, WOULD BE SUBJECT TO THE NEGOTIATED GRIEVANCE
PROCEDURE, SINCE JOB-GRADING DISPUTES ARE SUBJECT TO A STATUTORY APPEALS
PROCEDURE AND, UNDER SECTION 13(A) OF THE ORDER, A NEGOTIATED GRIEVANCE
PROCEDURE MAY NOT COVER MATTERS FOR WHICH STATUTORY APPEALS PROCEDURES
EXIST. ACCORDINGLY, THE AGENCY HEAD'S DETERMINATIONS OF
NONNEGOTIABILITY WERE SET ASIDE IN PART AND SUSTAINED IN PART.
LOCAL LODGE 2333, INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS (UNION) IS THE EXCLUSIVE REPRESENTATIVE OF A UNIT OF
WAGE-GRADE EMPLOYEES AT THE ACTIVITY. /1/ DURING NEGOTIATIONS, A
DISPUTE AROSE BETWEEN THE PARTIES AS TO THE NEGOTIABILITY OF THREE
PROPOSALS BY THE UNION (DETAILED HEREINAFTER) CONCERNING POSITION
DESCRIPTIONS (SECTION 6); ASSIGNMENTS OF WORK TO UNIT EMPLOYEES
(SECTION 7 AND FIRST CLAUSE OF SECTION 10); AND MEASUREMENT OF
COMPENSATION OF UNIT EMPLOYEES (SECOND CLAUSE OF SECTION 10).
UPON REFERRAL, THE DEPARTMENT OF DEFENSE DETERMINED THAT THE
PROPOSALS IN DISPUTE WERE NONNEGOTIABLE UNDER THE ORDER. THE UNION
APPEALED TO THE COUNCIL, DISAGREEING WITH THE AGENCY DETERMINATION; AND
THE AGENCY FILED A STATEMENT OF POSITION IN SUPPORT OF ITS
DETERMINATION.
THE NEGOTIABILITY QUESTIONS RELATING TO THE RESPECTIVE UNION
PROPOSALS WILL BE CONSIDERED SEPARATELY BELOW.
1. POSITION DESCRIPTIONS (SECTION 6). THIS PROPOSAL BY THE UNION
READS AS FOLLOWS:
SECTION 6. WHEN THE TERM "SUCH OTHER DUTIES AS MAY BE ASSIGNED" OR
ITS EQUIVALENT IS USED
IN A POSITION DESCRIPTION, THE TERM IS MUTUALLY UNDERSTOOD TO MEAN
"TASKS WHICH ARE NORMALLY
RELATED TO THE POSITION AND ARE OF AN INCIDENTAL NATURE."
THE AGENCY DETERMINED PRINCIPALLY THAT THE PROPOSAL WOULD LIMIT
MANAGEMENT IN THE ASSIGNMENT OF DUTIES TO EMPLOYEES AND, BASED ON THE
GRIFFISS CASE, /2/ WAS THEREBY NONNEGOTIABLE UNDER SECTION 11(B) OF THE
ORDER. WE CANNOT AGREE.
THE COUNCIL CONSIDERED THE NEGOTIABILITY OF A PROPOSAL SIMILAR TO
THAT HERE INVOLVED MORE RECENTLY IN THE LOUISVILLE NAVAL ORDNANCE CASE.
/3/ AS WE POINTED OUT IN THE LATTER CASE, SUCH A PROPOSAL, UNLIKE THAT
PRESENTED IN THE GRIFFISS CASE, IS EXPRESSLY DIRECTED AT THE MEANING OF
LANGUAGE IN POSITION DESCRIPTIONS, WHICH DESCRIPTIONS DO NOT DETERMINE
BUT REFLECT THE ASSIGNMENT OF DUTIES. ADDITIONALLY, THE COUNCIL STATED
IN THE LOUISVILLE NAVAL ORDNANCE CASE (AT PP. 4-5 OF COUNCIL DECISION):
THE UNION'S PROPOSAL THUS WOULD NOT RESTRICT THE AGENCY'S RIGHT TO
PRESCRIBE SPECIFICALLY
IN THE JOB DESCRIPTION ANY DUTIES WHICH IT WISHES TO ASSIGN TO AN
EMPLOYEE OR POSITION AND TO
CHANGE THE JOB DESCRIPTION WITHOUT LIMITATION TO REFLECT SUCH CHANGES
IN
ASSIGNMENTS. MOREOVER, THE AGREEMENT WOULD OF COURSE BE SUBJECT TO
SECTION 12(B) OF THE
ORDER, THE PROVISIONS OF WHICH MUST BE INCLUDED IN EVERY AGREEMENT.
UNDER SECTION 12(B), FOR
EXAMPLE, THE AGENCY RETAINS THE COMPLETE RIGHT, IN ACCORDANCE WITH
APPLICABLE LAWS AND
REGULATIONS, TO ASSIGN DUTIES TO EMPLOYEES OR POSITIONS IN SUCH
MANNER AS TO MAINTAIN THE
EFFICIENCY OF GOVERNMENT OPERATIONS, AND TO CARRY OUT THE MISSION OF
THE AGENCY IN EMERGENCY
SITUATIONS.
IN SUMMARY, NOTHING IN THE ORDER RENDERS THE MERE DEFINITION AND
CLARIFICATION OF GENERAL
TERMS IN JOB DESCRIPTIONS, AS PROPOSED BY THE UNION, OUTSIDE THE
AGENCY'S OBLIGATION TO
NEGOTIATE UNDER SECTION 11(B) OF THE ORDER . . . (FOOTNOTE OMITTED.)
ACCORDINGLY, FOR THE REASONS MORE FULLY SET FORTH IN THE LOUISVILLE
NAVAL ORDNANCE CASE, WE FIND THAT SECTION 6 AS HERE PROPOSED BY THE
UNION IS NEGOTIABLE. /4/
2. ASSIGNMENTS OF WORK (SECTION 7; FIRST CLAUSE OF SECTION 10).
THE DISPUTED SECTIONS CONCERNING WORK ASSIGNMENTS (REFERRED TO HEREIN
FOR CONVENIENCE AS A SINGLE UNION PROPOSAL) PROVIDE AS FOLLOWS:
SECTION 7. IN THE INTERESTS OF MAINTAINING MORALE IN A GOOD
EMPLOYER-EMPLOYEE
RELATIONSHIP, THE EMPLOYER AGREES THAT, TO THE FULLEST EXTENT
POSSIBLE IN MAINTAINING THE
EFFICIENCY OF THE GOVERNMENT OPERATIONS, EVERY EFFORT WILL BE MADE TO
ASSIGN WORK WITHIN THE
SCOPE OF THE CLASSIFICATION ASSIGNED AS DEFINED BY APPROPRIATE
CLASSIFICATION STANDARDS.
SECTION 10. THE EMPLOYER AGREES THAT TO THE MAXIMUM EXTENT POSSIBLE,
EFFORTS WILL BE MADE
TO ASSIGN WORK WITHIN THE SCOPE OF THE CLASSIFICATION ASSIGNED TO
BARGAINING UNIT EMPLOYEES,
AS DEFINED IN APPROPRIATE CLASSIFICATION STANDARDS . . .
AGAIN, THE AGENCY PRINCIPALLY DETERMINED THAT THE UNION PROPOSAL IS
NONNEGOTIABLE UNDER SECTION 11(B) OF THE ORDER, BECAUSE IT WOULD LIMIT
MANAGEMENT IN THE ASSIGNMENT OF DUTIES TO UNIT EMPLOYEES. WE FULLY
AGREE WITH THE AGENCY DETERMINATION AS APPLIED TO THE PROVISIONS IN
SECTION 7 AND THE FIRST CLAUSE OF SECTION 10 OF THE PROPOSED AGREEMENT.
IT IS CLEAR FROM THE EXPRESS LANGUAGE HERE INVOLVED, AS DISTINGUISHED
FROM THAT IN SECTION 6 DISCUSSED IMMEDIATELY ABOVE, THAT THE PROPOSAL
WOULD CONSTRICT THE ACTUAL ASSIGNMENT OF DUTIES BY THE AGENCY, NAMELY,
BY CONDITIONING SUCH ASSIGNMENT ON THE "SCOPE OF THE CLASSIFICATION
ASSIGNED" TO THE RESPECTIVE UNIT EMPLOYEES AS DEFINED IN "APPROPRIATE
CLASSIFICATION STANDARDS." THE CLASSIFICATION STANDARDS SO REFERRED TO
IN THE UNION'S PROPOSAL, MORE PROPERLY IDENTIFIED AS "JOB-GRADING
STANDARDS" WHEN CONCERNING WAGE-GRADE EMPLOYEES AS HERE INVOLVED,
CONSTITUTE GROUPINGS BY THE CIVIL SERVICE COMMISSION OF DUTIES, SKILLS,
KNOWLEDGES AND OTHER ASPECTS OF JOBS, FOR ESTABLISHING THE GRADE LEVELS
OF PARTICULAR JOBS. /5/ THESE STANDARDS ARE NEITHER DESIGNED NOR
INTENDED BY THE COMMISSION TO LIMIT THE AGENCIES IN ANY MANNER IN THE
ACTUAL ASSIGNMENT OF JOB DUTIES. /6/ THEREFORE, THE USE OF THESE
STANDARDS TO EFFECT SUCH A LIMITATION, AS PROPOSED BY THE UNION, WOULD
IMPOSE EXTRANEOUS CONDITIONS ON THE AGENCY'S AUTHORITY TO DETERMINE WORK
ASSIGNMENTS REQUIRED ONLY BY THE AGREEMENT ITSELF.
THE COUNCIL, IN THE RECENT IMMIGRATION AND NATURALIZATION SERVICE
CASE, CONSIDERED A SIMILAR PROPOSAL WHICH WOULD HAVE PREVENTED AN AGENCY
FROM ASSIGNING DUTIES TO UNIT EMPLOYEES UNLESS CONDITIONS PRESCRIBED IN
THE AGREEMENT EXISTED. /7/ THE PROPOSAL THERE CONDITIONED THE OVERTIME
ASSIGNMENT OF ALIEN BUS DUTIES TO BORDER PATROL AGENTS, ON THE
UNAVAILABILITY OF DETENTION GUARDS TO PERFORM SUCH DUTIES. IN FINDING
THE PROPOSAL NONNEGOTIABLE UNDER SECTION 11(B) OF THE ORDER, THE COUNCIL
SAID:
AS THE COUNCIL HELD IN THE GRIFFISS CASE, THE SPECIFIC DUTIES
ASSIGNED TO PARTICULAR
POSITIONS OR EMPLOYEES, I.E. THE JOB CONTENT, ARE "EXCLUDED FROM THE
OBLIGATION TO BARGAIN
UNDER THE WORDS 'ORGANIZATION' AND 'NUMBERS, TYPES, AND GRADES OF
POSITIONS OR EMPLOYEES
ASSIGNED TO AN ORGANIZATIONAL UNIT, WORK PROJECT OR TOUR OF DUTY' IN
SECTION 11(B) OF THE
ORDER." SUCH EXCEPTION FROM THE OBLIGATION TO BARGAIN UNDER SECTION
11(B) APPLIES NOT ONLY TO
A PROPOSAL WHICH WOULD TOTALLY PROSCRIBE THE ASSIGNMENT OF SPECIFIC
DUTIES TO PARTICULAR TYPES
OF EMPLOYEES, BUT ALSO TO A PROPOSAL WHICH, AS HERE, WOULD PREVENT
THE AGENCY FROM ASSIGNING
SUCH DUTIES UNLESS CERTAIN CONDITIONS EXIST.
WHILE . . . THE UNION CLAIMS THAT THE CONDITION ATTACHED TO THE
ASSIGNMENT OF ALIEN BUS
DUTIES TO BORDER PATROL AGENTS IS MERELY A "PROCEDURE" WHICH IS
NEGOTIABLE, THE SUBJECT
CONDITION (NAMELY, WHEN DETENTION GUARDS ARE UNAVAILABLE) PLAINLY
IMPOSED LIMITATIONS ON WHICH
TYPES OF POSITIONS OR EMPLOYEES WILL ACTUALLY PERFORM THE DUTIES
INVOLVED. SUCH A LIMITATION
ON THE AGENCY'S RESERVED AUTHORITY TO ASSIGN DUTIES FALLS OUTSIDE THE
AGENCY'S OBLIGATION TO
BARGAIN UNDER SECTION 11(B) . . . (FOOTNOTES OMITTED)
IN THE PRESENT CASE, THE UNION'S PROPOSAL WOULD LIKEWISE LIMIT THE
AGENCY IN THE ASSIGNMENT OF DUTIES TO UNIT EMPLOYEES UNLESS CONDITIONS
PRESCRIBED IN THE AGREEMENT EXIST-- HERE, THE CONFORMITY OF THE DUTIES
WITH THE SCOPE OF JOB-GRADING STANDARDS. ACCORDINGLY, WE FIND THAT THE
JNION'S PROPOSAL IS EXCEPTED FROM THE AGENCY'S OBLIGATION TO BARGAIN
UNDER SECTION 11(B) OF THE ORDER.
WE THEREFORE SUSTAIN THE AGENCY'S DETERMINATION AS TO THE
NONNEGOTIABILITY OF THE UNION'S PROPOSED SECTION 7 AND THE FIRST CLAUSE
OF SECTION 10.
3. MEASUREMENT OF COMPENSATION OF UNIT EMPLOYEES (SECOND CLAUSE OF
SECTION 10). THE FINAL DISPUTED PROPOSAL READS AS FOLLOWS:
SECTION 10. THE EMPLOYER AGREES THAT . . . (IT) WILL COMPENSATE
EMPLOYEES ON THE BASIS OF
THE HIGHEST LEVEL OF DUTIES ASSIGNED AS A SUBSTANTIAL PORTION OF THE
CONTINUOUS WORK
ASSIGNMENT FOR A REPRESENTATIVE PERIOD OF TIME.
THE AGENCY DETERMINED THAT THE PROPOSAL VIOLATES CIVIL SERVICE
COMMISSION DIRECTIVES AND IS THEREFORE NOT NEGOTIABLE. /8/
SINCE THE CIVIL SERVICE COMMISSION HAS PRIMARY RESPONSIBILITY FOR THE
ISSUANCE AND INTERPRETATION OF ITS OWN DIRECTIVES, THAT AGENCY WAS
REQUESTED, IN ACCORDANCE WITH COUNCIL PRACTICE, FOR AN INTERPRETATION OF
COMMISSION DIRECTIVES AS THEY PERTAIN TO THE QUESTION RAISED IN THE
PRESENT CASE. THE COMMISSION REPLIED IN RELEVANT PART AS FOLLOWS:
WHETHER OR NOT THE PROPOSAL CONFLICTS WITH CIVIL SERVICE COMMISSION
DIRECTIVES DEPENDS UPON
WHETHER IT IS FOR APPLICATION TO GENERAL SCHEDULE (GS) OR WAGE GRADE
(WG) EMPLOYEES( /9/ )
WAGE GRADE APPLICATION:
IF THE PROBLEM IS CONCERNED WITH GRADING MIXED JOBS FOR WAGE GRADE
(BLUE COLLAR) EMPLOYEES,
THE PROPOSAL IS NOT IN CONFLICT WITH CIVIL SERVICE COMMISSION
DIRECTIVES. SUBCHAPTER S6 FROM
THE FEDERAL PERSONNEL MANUAL 532-1, DATED JANUARY 1973, CLEARLY
REGULATES THE APPROPRIATE PAY
PRACTICES.
THE MIXED JOB POLICY IN THE FPM STATES:
"IN GRADING A JOB REQUIRING THE PERFORMANCE OF WORK IN TWO OR MORE
OCCUPATIONS ON A REGULAR
AND RECURRING BASIS, THE WHOLE JOB IS CONSIDERED INCLUDING THE FULL
RANGE AND LEVEL OF SKILLS,
KNOWLEDGE, AND QUALIFICATIONS REQUIRED, AS WELL AS OTHER RELEVANT JOB
FACTS. SUCH A MIXED JOB
IS GRADED IN KEEPING WITH THE HIGHEST SKILL AND QUALIFICATION
REQUIREMENTS OF THE JOB, EVEN IF
THE DUTIES INVOLVED ARE NOT PERFORMED FOR MAJORITY OF THE TIME BUT
ARE REGULAR AND RECURRING."
THUS, THE PROPOSAL IS NOT IN CONFLICT WITH COMMISSION DIRECTIVES WITH
RESPECT TO THE WAGE
GRADE JOBS.
BASED ON THE FOREGOING INTERPRETATION BY THE CIVIL SERVICE COMMISSION
OF ITS OWN ISSUANCES, AND IN VIEW OF THE WAGE-GRADE COMPOSITION OF THE
UNIT HERE INVOLVED, WE FIND THAT THE UNION'S PROPOSAL IS NOT IN CONFLICT
WITH CIVIL SERVICE COMMISSION REQUIREMENTS. ACCORDINGLY, WE OVERRULE
THE AGENCY'S DETERMINATION AS TO THE NONNEGOTIABILITY OF THE SECOND
CLAUSE OF THE UNION'S PROPOSED SECTION 10.
WHILE WE HAVE FOUND THAT THAT UNION'S PROPOSAL CONCERNING THE GRADING
OF MIXED JOBS IS NEGOTIABLE, WE MUST ADD, IN ORDER TO AVOID ANY POSSIBLE
MISUNDERSTANDING, THAT WE DO NOT HERE DECIDE THAT DISPUTES OVER THE
INTERPRETATION OR APPLICATION OF THIS PROPOSAL (IF AGREED UPON BY THE
PARTIES) WOULD THEREBY BE SUBJECT TO THE NEGOTIATED GRIEVANCE PROCEDURE.
JOB-GRADING DISPUTES ARE SUBJECT TO A STATUTORY APPEALS PROCEDURE, /10/
AND, AS PROVIDED IN SECTION 13(A) OF THE ORDER, A "NEGOTIATED GRIEVANCE
PROCEDURE MAY NOT COVER . . . MATTERS FOR WHICH STATUTORY APPEALS
PROCEDURES EXIST."
FOR THE REASONS DISCUSSED ABOVE AND PURSUANT TO SECTION 2411.27 OF
THE COUNCIL'S RULES AND REGULATIONS, WE FIND THAT:
1. THE AGENCY HEAD'S DETERMINATION AS TO THE NONNEGOTIABILITY OF
SECTION 7 AND THE FIRST CLAUSE OF SECTION 10 WAS VALID AND MUST BE
SUSTAINED; AND
2. THE AGENCY HEAD'S DETERMINATION AS TO THE NONNEGOTIABILITY OF
SECTION 6 AND THE SECOND CLAUSE OF SECTION 10 WAS IMPROPER AND MUST BE
SET ASIDE. THIS DECISION SHOULD NOT BE CONSTRUED AS EXPRESSING OR
IMPLYING ANY OPINION OF THE COUNCIL AS TO THE MERITS OF THE UNION'S
PROPOSALS. WE DECIDE ONLY THAT, AS SUBMITTED BY THE UNION AND BASED ON
THE RECORD BEFORE THE COUNCIL, THE PROPOSALS ARE PROPERLY SUBJECT TO
NEGOTIATION BY THE PARTIES CONCERNED UNDER SECTION 11(A) OF THE ORDER.
BY THE COUNCIL.
ISSUED: DECEMBER 5, 1974
/1/ THE PARTIES ADMINISTRATIVELY ADVISED THE COUNCIL AS TO THE
WAGE-GRADE COMPOSITION OF THE UNIT, AFTER THE UNION'S APPEAL AND THE
AGENCY'S STATEMENT OF POSITION WERE FILED IN THE INSTANT CASE.
/2/ INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL F-111 AND
GRIFFISS AIR FORCE BASE, ROME, N.Y., FLRC NO. 71A-30 (APRIL 19, 1973),
REPORT NO. 36. IN THAT CASE, THE UNION'S PROPOSALS WOULD HAVE
PROHIBITED THE ASSIGNMENT OF ALLEGEDLY UNRELATED DUTIES TO POSITIONS IN
THE UNIT. THE COUNCIL SUSTAINED THE AGENCY'S DETERMINATION OF
NONNEGOTIABILITY, BECAUSE THE SPECIFIC DUTIES ASSIGNED TO PARTICULAR
JOBS, INCLUDING DUTIES ALLEGEDLY UNRELATED TO THE PRINCIPAL FUNCTIONS OF
THE EMPLOYEES CONCERNED, ARE EXCEPTED FROM THE AGENCY'S OBLIGATION TO
BARGAIN UNDER SECTION 11(B).
/3/ LOCAL LODGE 830, INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, AND LOUISVILLE NAVAL ORDNANCE STATION, DEPARTMENT OF
THE NAVY, FLRC NO. 73A-21 (JANUARY 31, 1974), REPORT NO. 48.
/4/ SEE ALSO AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 53,
AND NAVY REGIONAL FINANCE CENTER, NORFOLK, VIRGINIA, FLRC NO. 73A-48
(FEBRUARY 28, 1974), REPORT NO. 49.
/5/ FPM SUPPLEMENT 532-1, SUBCHAPTER S6-4.
/6/ SEE U.S. CIVIL SERVICE COMMISSION "JOB GRADING SYSTEM FOR TRADES
AND LABOR OCCUPATIONS," SECTION II.B.2. FOR A DISCUSSION OF ANALOGOUS
"POSITION CLASSIFICATION STANDARDS" WHICH APPLY TO GENERAL SCHEDULE
EMPLOYEES, SEE, E.G., VETERANS ADMINISTRATION HOSPITAL, CANANDAIGUA, NEW
YORK, AND LOCAL 227, SERVICE EMPLOYEES INTERNATIONAL UNION, BUFFALO, NEW
YORK, FLRC NO. 73A-42 (JULY 31, 1974), REPORT NO. 55, AND CITATIONS
THEREIN.
/7/ AFGE (NATIONAL BORDER PATROL COUNCIL AND NATIONAL COUNCIL OF
IMMIGRATION AND NATURALIZATION SERVICE LOCALS) AND IMMIGRATION AND
NATURALIZATION SERVICE, FLRC NO. 73A-25 (SEPTEMBER 30, 1974), REPORT
NO. 57, AT PP. 5-7 OF DECISION.
/8/ THE AGENCY ALSO ASSERTED THAT THE PROPOSAL VIOLATES AGENCY
REGULATIONS (PARAGRAPH 3-5E, AIR FORCE SUPPLEMENT TO PARAGRAPH 3-5,
SUBCHAPTER 3, POSITION CLASSIFICATION STANDARDS). HOWEVER, THIS
REGULATION CONCERNS THE CLASSIFICATION OF GENERAL SCHEDULE POSITIONS AND
IS MANIFESTLY INAPPLICABLE TO THE WAGE-GRADE EMPLOYEES INVOLVED IN THE
INSTANT CASE.
/9/ THE ADMINISTRATIVE ADVICE BY THE PARTIES AS TO THE WAGE-GRADE
COMPOSITION OF THE UNIT, REFERRED TO IN FOOTNOTE 1, SUPRA, WAS RECEIVED
BY THE COUNCIL AFTER THE RESPONSE FROM THE COMMISSION.
/10/ SEE, 5 U.S.C. 5346(C); FPM SUPPLEMENT 532-1, SUBCHAPTER S7.
2 FLRC 277; FLRC NO. 74A-39; NOVEMBER 22, 1974.
MR. STEPHEN D. POOR
NATIONAL FIELD REPRESENTATIVE
NATIONAL TREASURY EMPLOYEES UNION
SUITE 1101
1730 K STREET, NW.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 74A-39
INTERNAL REVENUE SERVICE, CHAMBLEE SERVICE CENTER, CHAMBLEE, GEORGIA,
ASSISTANT SECRETARY CASE NO. 40-5246 (CA). THE ASSISTANT SECRETARY
SUSTAINED THE ASSISTANT REGIONAL DIRECTOR'S DISMISSAL OF THE COMPLAINT
FILED BY NATIONAL TREASURY EMPLOYEES UNION, WHICH ALLEGED THAT A
SUPERVISOR'S PROFANE STATEMENT AT THE TIME A UNION REPRESENTATIVE
PRESENTED AN EMPLOYEE'S GRIEVANCE VIOLATED SECTIONS 19(A)(1) AND
19(A)(6) OF THE ORDER. THE ASSISTANT SECRETARY FOUND THAT THERE WAS NO
EVIDENCE THAT THE SUPERVISOR TOLD THE UNION REPRESENTATIVE THAT THE
AGENCY WOULD REFUSE TO PROCESS THE GRIEVANCE; THAT THE AGENCY WOULD
INITIATE PUNITIVE ACTION AGAINST THE GRIEVANT OR THE REPRESENTATIVE; OR
THAT THE GRIEVANT SHOULD BYPASS THE UNION. THE ASSISTANT SECRETARY
FOUND RATHER THAT THE SUPERVISOR'S STATEMENT REPRESENTED "AT MOST . . .
A BLUNT, ALBEIT COARSE AND VULGAR, EXPRESSION" OF THE SUPERVISOR'S
OPINION OF THE MERITS OF THE GRIEVANCE. NTEU APPEALED TO THE COUNCIL
CONTENDING THAT THE ASSISTANT SECRETARY'S DECISION WAS ARBITRARY AND
CAPRICIOUS AND THAT IT RAISED MAJOR POLICY ISSUES.
COUNCIL ACTION (NOVEMBER 22, 1974). THE COUNCIL CONCLUDED THAT THE
ASSISTANT SECRETARY'S DECISION DID NOT APPEAR ARBITRARY AND CAPRICIOUS
IN THAT NOTHING IN THE UNION'S APPEAL INDICATED THAT SUBSTANTIAL FACTUAL
ISSUES EXISTED WHICH WOULD REQUIRE A HEARING OR THAT THE FINDINGS AND
DECISION OF THE ASSISTANT SECRETARY WERE OTHERWISE WITHOUT REASONABLE
JUSTIFICATION IN THE CIRCUMSTANCES OF THE CASE. THE COUNCIL FOUND,
ADDITIONALLY, THAT IN THE CIRCUMSTANCES PRESENTED, PARTICULARLY
INCLUDING THE AMBIGUOUS NATURE AND ISOLATED CHARACTER OF THE REMARK, THE
ASSISTANT SECRETARY'S DECISION DID NOT RAISE MAJOR POLICY ISSUES
WARRANTING REVIEW. ACCORDINGLY, WITHOUT PASSING UPON THE QUESTION OF
WHETHER LATER MANAGEMENT ACTION CAN EXPUNGE AN AGENCY UNFAIR LABOR
PRACTICE, THE COUNCIL, PURSUANT TO SECTION 2411.12 OF ITS RULES OF
PROCEDURE, DENIED REVIEW OF THE APPEAL (5 CFR 2411.12).
DEAR MR. POOR:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR REQUEST FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
IN THIS CASE, IN WHICH THE ASSISTANT SECRETARY SUSTAINED THE
ASSISTANT REGIONAL DIRECTOR'S DISMISSAL OF YOUR UNFAIR LABOR PRACTICE
COMPLAINT, YOU ALLEGED, IN ESSENCE, THAT A SUPERVISOR'S PROFANE
STATEMENT AT THE TIME A UNION REPRESENTATIVE PRESENTED AN EMPLOYEE'S
GRIEVANCE CONSTITUTED A VIOLATION OF SECTIONS 19(A)(1) AND 19(A)(6) OF
THE ORDER.
THE ASSISTANT SECRETARY FOUND, THAT UNDER ALL OF THE CIRCUMSTANCES
DISCLOSED BY THE INVESTIGATION IN THE CASE, THAT A REASONABLE BASIS FOR
THE COMPLAINT DID NOT EXIST. THE ASSISTANT SECRETARY FOUND, IN
PERTINENT PART, THAT THERE WAS NO EVIDENCE THAT THE SUPERVISOR TOLD THE
UNION REPRESENTATIVE THAT THE RESPONDENT WOULD REFUSE TO PROCESS THE
GRIEVANCE IN CONTRAVENTION OF THE NEGOTIATED GRIEVANCE PROCEDURE; THAT
THE AGENCY WOULD INITIATE PUNITIVE ACTIONS AGAINST THE GRIEVANT OR THE
REPRESENTATIVE; OR THAT THE GRIEVANT SHOULD BYPASS THE UNION. THE
ASSISTANT SECRETARY FOUND THAT THE SUPERVISOR'S STATEMENT REPRESENTED
"AT MOST . . . A BLUNT, ALBEIT COARSE AND VULGAR, EXPRESSION . . . " OF
THE SUPERVISOR'S OPINION OF THE MERITS OF THE GRIEVANCE.
IN YOUR PETITION FOR REVIEW, YOU CONTEND THAT THE ASSISTANT
SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS AND PRESENTS MAJOR
POLICY ISSUES.
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW DOES NOT MEET THE
REQUIREMENTS OF THE COUNCIL'S RULES GOVERNING REVIEW. THAT IS, BASED
UPON THE CONTENTIONS DESCRIBED ABOVE, THE ASSISTANT SECRETARY'S DECISION
DOES NOT APPEAR ARBITRARY AND CAPRICIOUS AND DOES NOT PRESENT MAJOR
POLICY ISSUES. WITH REGARD TO YOUR CONTENTION THAT THE DECISION OF THE
ASSISTANT SECRETARY APPEARS ARBITRARY AND CAPRICIOUS, THE COUNCIL FINDS
THAT NOTHING IN YOUR APPEAL INDICATES THAT SUBSTANTIAL FACTUAL ISSUES
EXIST WHICH WOULD REQUIRE A HEARING. MOREOVER, IT DOES NOT APPEAR THAT
THE FINDINGS AND DECISION OF THE ASSISTANT SECRETARY WERE WITHOUT
REASONABLE JUSTIFICATION IN THE CIRCUMSTANCES OF THIS CASE. WITH REGARD
TO THE ALLEGED MAJOR POLICY ISSUES, THE COUNCIL IS OF THE OPINION THAT
IN THE CIRCUMSTANCES PRESENTED, PARTICULARLY INCLUDING THE AMBIGUOUS
NATURE OF THE REMARK AND ITS ISOLATED CHARACTER, THE ASSISTANT
SECRETARY'S DETERMINATION THAT A REASONABLE BASIS FOR THE COMPLAINT DOES
NOT EXIST DOES NOT RAISE MAJOR POLICY ISSUES WARRANTING REVIEW. IN
THESE CIRCUMSTANCES, WE DO NOT PASS UPON THE QUESTION OF WHETHER LATER
MANAGEMENT ACTION CAN EXPUNGE AN AGENCY UNFAIR LABOR PRACTICE.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY OR
CAPRICIOUS AND DOES NOT PRESENT A MAJOR POLICY ISSUE, YOUR APPEAL FAILS
TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED UNDER SECTIONS 2411.12
OF THE COUNCIL'S RULES OF PROCEDURE. ACCORDINGLY, REVIEW OF YOUR APPEAL
IS HEREBY DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
G. J. SHAW
IRS
2 FLRC 274; FLRC NO. 74A-34; NOVEMBER 22, 1974.
MR. WILLIAM M. RUSSELL
DEPUTY ASSISTANT SECRETARY FOR
PERSONNEL AND TRAINING
OFFICE OF THE SECRETARY
DEPARTMENT OF HEALTH, EDUCATION,
AND WELFARE
WASHINGTON, D.C. 20201
(SYNOPSIS) FLRC NO. 74A-34
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, FOOD AND DRUG
ADMINISTRATION, NEWARK DISTRICT, NEWARK, NEW JERSEY, A/SLMR NO. 361.
THE ASSISTANT SECRETARY DETERMINED THAT EMPLOYEES IN CERTAIN DISPUTED
JOB CLASSIFICATIONS WERE NOT MANAGEMENT OFFICIALS AND SHOULD NOT BE
EXCLUDED FROM THE DISTRICTWIDE UNIT ON THAT BASIS. IN REACHING HIS
DETERMINATION, THE ASSISTANT SECRETARY RELIED UPON PRINCIPLES ENUNCIATED
IN HIS DECISION IN THE ARNOLD ENGINEERING CASE, A/SLMR NO. 135, PETITION
FOR REVIEW DISMISSED AS MOOT, FLRC NO. 72A-19, REPORT NO. 36, AS TO THE
DEFINITION OF "MANAGEMENT OFFICIAL" AND ITS APPLICATION. THE AGENCY
PETITIONED THE COUNCIL FOR REVIEW, ALLEGING THAT THE ASSISTANT
SECRETARY'S DECISION WAS ARBITRARY AND CAPRICIOUS OR PRESENTED MAJOR
POLICY ISSUES.
COUNCIL ACTION (NOVEMBER 22, 1974). THE COUNCIL HELD THAT THE
ASSISTANT SECRETARY'S DECISION DID NOT APPEAR ARBITRARY AND CAPRICIOUS,
NOTING THAT THE ASSISTANT SECRETARY DID NOT APPEAR TO HAVE ACTED WITHOUT
REASONABLE JUSTIFICATION IN THAT HE BASED HIS DETERMINATION UPON
ESTABLISHED PRINCIPLES REFLECTED IN HIS PREVIOUSLY PUBLISHED DECISIONS.
THE COUNCIL ALSO HELD THAT THE ASSISTANT SECRETARY'S DECISION PRESENTED
NO MAJOR POLICY ISSUES SINCE THE AGENCY DID NOT CONTEND, NOR DID IT
OFFER EVIDENCE TO SUGGEST, THAT THE ASSISTANT SECRETARY'S DEFINITION OF
"MANAGEMENT OFFICIAL," PROMULGATED IN HIS DECISION IN ARNOLD ENGINEERING
AND UPON WHICH HE RELIED IN THE SUBJECT CASE, WAS INCONSISTENT EITHER
WITH THE PURPOSES OF THE ORDER OR WITH OTHER APPLICABLE AUTHORITY.
ACCORDINGLY, WITHOUT ADOPTING THE PRECISE LANGUAGE OF THE ASSISTANT
SECRETARY'S DEFINITION OF "MANAGEMENT OFFICIAL," THE COUNCIL DENIED
REVIEW OF THE AGENCY'S PETITION UNDER SECTION 2411.12 OF THE COUNCIL'S
RULES AND REGULATIONS (5 CFR 2411.12).
DEAR MR. RUSSELL:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
THE ASSISTANT SECRETARY DETERMINED, IN PERTINENT PART, THAT EMPLOYEES
IN CERTAIN DISPUTED JOB CLASSIFICATIONS ARE NOT MANAGEMENT OFFICIALS AND
SHOULD NOT BE EXCLUDED FROM THE DISTRICTWIDE UNIT ON THAT BASIS. MORE
PARTICULARLY, THE ASSISTANT SECRETARY FOUND THAT CONSUMER SAFETY
OFFICERS, GS-12 AND GS-13, IN THE COMPLIANCE BRANCH, "ARE ENGAGED
ESSENTIALLY IN ENFORCING ESTABLISHED POLICY WITHIN CONTROLLED AGENCY
GUIDELINES, RATHER THAN PARTICIPATION IN THE DETERMINATION OF WHAT THAT
POLICY, IN FACT, SHOULD BE"; AND THAT CONSUMER AFFAIRS OFFICERS, GS-11,
"ESSENTIALLY APPLY, IMPLEMENT AND MAKE RECOMMENDATIONS WITH RESPECT TO
ESTABLISHED POLICY, AS DISTINGUISHED FROM EMPLOYEES WHO ACTIVELY
PARTICIPATE IN THE ULTIMATE DETERMINATION AS TO WHAT A POLICY WOULD BE."
IN REACHING HIS DETERMINATION, THE ASSISTANT SECRETARY RELIED ON
PRINCIPLES ENUNCIATED IN HIS DECISION IN DEPARTMENT OF THE AIR FORCE,
ARNOLD ENGINEERING DEVELOPMENT CENTER, A/SLMR NO. 135 (FEBRUARY 28,
1972), /1/ AS TO THE DEFINITION OF "MANAGEMENT OFFICIAL" AND ITS
APPLICATION, AS FOLLOWS:
WHEN USED IN CONNECTION WITH THE EXECUTIVE ORDER, THE TERM
'MANAGEMENT OFFICIAL' MEANS AN
EMPLOYEE HAVING AUTHORITY TO MAKE, OR TO INFLUENCE EFFECTIVELY THE
MAKING OF, POLICY NECESSARY
TO THE AGENCY OR ACTIVITY WITH RESPECT TO PERSONNEL, PROCEDURES, OR
PROGRAMS. IN DETERMINING
WHETHER A GIVEN INDIVIDUAL INFLUENCES EFFECTIVELY POLICY DECISIONS IN
THIS CONTEXT,
CONSIDERATION SHOULD BE CONCENTRATED ON WHETHER HIS ROLE IS THAT OF
AN EXPERT OR PROFESSIONAL
RENDERING RESOURCE INFORMATION OR RECOMMENDATIONS WITH RESPECT TO THE
POLICY IN QUESTION, OR
WHETHER HIS ROLE EXTENDS BEYOND THIS TO THE POINT OF ACTIVE
PARTICIPATION IN THE ULTIMATE
DETERMINATION AS TO WHAT THE POLICY IN FACT WILL BE. (FOOTNOTE
OMITTED.)
IN YOUR PETITION FOR REVIEW YOU ASSERT THAT THE ASSISTANT SECRETARY'S
DECISION IS ARBITRARY AND CAPRICIOUS OR PRESENTS A MAJOR POLICY ISSUE
PRINCIPALLY BECAUSE THE ASSISTANT SECRETARY'S FINDINGS ARE NOT SUPPORTED
BY THE WEIGHT OF THE EVIDENCE IN THE RECORD AND BECAUSE HE IMPROPERLY
APPLIED OR FAILED TO ADHERE TO APPLICABLE PRECEDENTS IN REACHING HIS
DETERMINATION.
IN THE COUNCIL'S OPINION YOUR PETITION DOES NOT MEET THE REQUIREMENTS
FOR REVIEW AS PROVIDED IN SECTION 2411.12 OF THE COUNCIL'S RULES OF
PROCEDURE. THAT IS, IN OUR VIEW, THE ASSISTANT SECRETARY'S DECISION
DOES NOT APPEAR ARBITRARY AND CAPRICIOUS, NOR DOES IT PRESENT A MAJOR
POLICY ISSUE. AS TO YOUR CONTENTIONS THAT HIS DECISION IS ARBITRARY AND
CAPRICIOUS, IT DOES NOT APPEAR THAT THE ASSISTANT SECRETARY ACTED
WITHOUT REASONABLE JUSTIFICATION IN REACHING HIS DECISION IN THAT THE
DECISION IS BASED UPON ESTABLISHED PRINCIPLES REFLECTED IN PREVIOUSLY
PUBLISHED DECISIONS OF THE ASSISTANT SECRETARY. WITH RESPECT TO THE
ALLEGED MAJOR POLICY ISSUES IN THIS CASE, YOUR PETITION NEITHER
CONTENDS, NOR DOES IT OFFER EVIDENCE TO SUGGEST, THAT THE ASSISTANT
SECRETARY'S DEFINITION OF "MANAGEMENT OFFICIAL," WHICH HE ENUNCIATED IN
HIS DECISION IN ARNOLD ENGINEERING, AND UPON WHICH HE RELIED IN THE
INSTANT CASE, IS INCONSISTENT EITHER WITH THE PURPOSES OF THE ORDER OR
WITH OTHER APPLICABLE AUTHORITY. THUS, WITHOUT ADOPTING THE PRECISE
LANGUAGE OF THE ASSISTANT SECRETARY'S DEFINITION OF "MANAGEMENT
OFFICIAL", WE CONCLUDE THAT HIS DECISION IN THIS CASE RAISES NO MAJOR
POLICY ISSUE WITH RESPECT THERETO.
ACCORDINGLY, SINCE YOUR PETITION FAILS TO MEET THE REQUIREMENTS FOR
REVIEW PROVIDED BY SECTION 2411.12 OF THE COUNCIL'S RULES OF PROCEDURE,
REVIEW OF THE PETITION IS HEREBY DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
W. W. TREPTOW
AFGE
/1/ PETITION FOR REVIEW DISMISSED AS MOOT, FLRC NO. 72A-19 (APRIL 18,
1973), REPORT NO. 36.
2 FLRC 271; FLRC NO. 74A-62; NOVEMBER 21, 1974.
MS. NORMA J. DENNIS, CHIEF STEWARD
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1336
P.O. BOX 15281-- 601 E. 12TH STREET
KANSAS CITY, MISSOURI 64106
(SYNOPSIS) FLRC NO. 74A-62
MID-AMERICA PROGRAM CENTER, SOCIAL SECURITY ADMINISTRATION AND LOCAL
1336, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (YAROWSKY,
ARBITRATOR). THE UNION FILED WITH THE COUNCIL ITS PETITION FOR REVIEW
OF THE ARBITRATOR'S AWARD, WHICH AWARD WAS SERVED ON THE UNION ON JULY
31, 1974. UNDER THE COUNCIL'S RULES THE PETITION WAS DUE ON OR BEFORE
AUGUST 23, 1974; HOWEVER, THE PETITION WAS NOT FILED UNTIL AUGUST 27,
1974. WHILE THE COUNCIL SUBSEQUENTLY GRANTED THE UNION AN EXTENSION OF
TIME TO FILE ADDITIONAL DOCUMENTS INCLUDING COPIES OF THE AWARD, NO
EXTENSION OF TIME WITH RESPECT TO THE INITIAL FILING OF SUCH PETITION
WAS EITHER REQUESTED BY THE UNION OR GRANTED BY THE COUNCIL.
COUNCIL ACTION (NOVEMBER 21, 1974). BECAUSE THE UNION'S PETITION WAS
UNTIMELY FILED, AND APART FROM OTHER CONSIDERATIONS, THE COUNCIL DENIED
THE PETITION FOR REVIEW.
DEAR MS. DENNIS:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION, AND THE AGENCY'S
OPPOSITION THERETO, FOR REVIEW OF THE ARBITRATOR'S AWARD FILED IN THE
ABOVE-ENTITLED CASE. FOR THE REASONS INDICATED BELOW, THE COUNCIL HAS
DETERMINED, AS CONTENDED IN PART BY THE AGENCY, THAT YOUR PETITION WAS
UNTIMELY FILED UNDER THE COUNCIL'S RULES OF PROCEDURE AND CANNOT BE
ACCEPTED FOR REVIEW.
SECTION 2411.33(B) OF THE COUNCIL'S RULES PROVIDES THAT A PETITION
FOR REVIEW MUST BE FILED WITHIN 20 DAYS FROM THE DATE THE ARBITRATOR'S
AWARD WAS SERVED UPON THE PARTY SEEKING REVIEW. SECTION 2411.46(C)
PROVIDES THAT THE DATE OF SERVICE SHALL BE THE DATE THE AWARD WAS
DEPOSITED IN THE MAIL OR DELIVERED IN PERSON, AS THE CASE MAY BE. WHERE
SUCH SERVICE WAS MADE BY MAIL, SECTION 2411.45(C) PROVIDES THAT 3 DAYS
SHALL BE ADDED TO THE TIME PERIOD WITHIN WHICH THE PETITION MUST BE
FILED. ADDITIONALLY, UNDER SECTION 2411.45(A), ANY PETITION FILED MUST
BE RECEIVED IN THE COUNCIL'S OFFICE BEFORE THE CLOSE OF BUSINESS OF THE
LAST DAY OF THE PRESCRIBED TIME PERIOD. IN COMPUTING THESE TIME
PERIODS, SECTION 2411.45(B) PROVIDES THAT IF THE LAST DAY FOR FILING A
PETITION FALLS ON A SATURDAY, SUNDAY, OR FEDERAL LEGAL HOLIDAY THE
PERIOD FOR FILING SHALL RUN UNTIL THE END OF THE NEXT DAY WHICH IS NOT A
SATURDAY, SUNDAY, OR FEDERAL LEGAL HOLIDAY.
ACCORDING TO THE RECORD BEFORE THE COUNCIL, YOUR PETITION, WHICH WAS
INCOMPLETE IN THAT IT FAILED TO INCLUDE A COPY OF THE ARBITRATOR'S AWARD
AMONG OTHER THINGS, WAS RECEIVED BY THE COUNCIL ON AUGUST 27, 1974. ON
AUGUST 29, 1974, THE COUNCIL, UNDER SECTION 2411.45(D), GRANTED YOU AN
EXTENSION TO SEPTEMBER 10, 1974 TO SUBMIT COPIES OF THE ARBITRATOR'S
AWARD AND OTHER PERTINENT DOCUMENTS FOR THE PURPOSE OF COMPLETING YOUR
PETITION. AS THE DOCUMENTS WHICH YOU SUBSEQUENTLY SUBMITTED TO COMPLETE
YOUR PETITION MAKE CLEAR, THE ARBITRATOR'S AWARD WAS SERVED ON YOU ON
JULY 31, 1974. THEREFORE, UNDER THE COUNCIL'S RULES, STATED ABOVE, YOUR
PETITION FOR REVIEW WAS DUE IN THE COUNCIL'S OFFICE ON OR BEFORE THE
CLOSE OF BUSINESS ON AUGUST 23, 1974. HOWEVER, AS PREVIOUSLY INDICATED,
YOUR PETITION WAS NOT RECEIVED BY THE COUNCIL UNTIL AUGUST 27, 1974, AND
NO EXTENSION OF TIME WITH RESPECT TO THE FILING OF SUCH PETITION WAS
EITHER REQUESTED BY YOU OR GRANTED BY THE COUNCIL UNDER SECTION
2411.45(D) OF THE COUNCIL'S RULES.
ACCORDINGLY, AS YOUR PETITION WAS UNTIMELY FILED, AND APART FROM
OTHER CONSIDERATIONS, YOUR PETITION FOR REVIEW IS DENIED.
BY THE COUNCIL.
CC: R. S. WHITEMAN
AFGE
I. L. BECKER
SSA
2 FLRC 262; FLRC NO. 73A-44; NOVEMBER 6, 1974.
SMALL BUSINESS ADMINISTRATION
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2532
(SYNOPSIS) FLRC NO. 73A-44
SMALL BUSINESS ADMINISTRATION AND AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2532 (KLEEB, ARBITRATOR). THE COUNCIL ACCEPTED THE
AGENCY'S PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD, WHICH AWARD
ORDERED THE AGENCY TO PROMOTE THE GRIEVANT RETROACTIVELY WITH BACKPAY,
ON THE GROUND THAT: (1) THE ARBITRATOR ASSERTEDLY EXCEEDED HIS
AUTHORITY BY FAILING TO DECIDE THE QUESTION SUBMITTED TO ARBITRATION AND
BY DECIDING ISSUES NOT INCLUDED THEREIN, AND (2) THE AWARD ASSERTEDLY
VIOLATED THE BACK PAY ACT AND ITS IMPLEMENTING REGULATIONS (REPORT NO.
45).
COUNCIL ACTION (NOVEMBER 6, 1974). THE COUNCIL FOUND THAT THE
ARBITRATOR DECIDED THE QUESTION SUBMITTED TO ARBITRATION, THAT HE DID
NOT DETERMINE ISSUES NOT INCLUDED IN THAT QUESTION, AND THAT HE DID NOT
EXCEED HIS AUTHORITY. FURTHER, BASED ON THE ADVICE OF THE CIVIL SERVICE
COMMISSION, WHICH AGENCY IS AUTHORIZED UNDER THE BACK PAY ACT TO
PRESCRIBE REGULATIONS TO IMPLEMENT THAT ACT, THE COUNCIL HELD THAT THE
AWARD DOES NOT VIOLATE THE BACK PAY ACT (5 U.S.C. 5596) AND THE
IMPLEMENTING CSC REGULATIONS (5 CFR 550.803). ACCORDINGLY, PURSUANT TO
SECTION 2411.37(B) OF ITS RULES OF PROCEDURE (5 CFR 2411.37(B)), THE
COUNCIL SUSTAINED THE ARIBTRATOR'S AWARD.
THIS APPEAL AROSE FROM THE ARBITRATOR'S DETERMINATION THAT THE
AGENCY'S FAILURE TO PROMOTE THE GRIEVANT, LEONARD A. ROSEN, TO A GS-14
POSITION VIOLATED THE PARTIES' NEGOTIATED AGREEMENT, /1/ AND FROM THE
ARBITRATOR'S AWARD ORDERING THE AGENCY TO PROMOTE ROSEN RETROACTIVELY TO
THE GS-14 POSITION WITH BACKPAY.
BASED ON THE FINDINGS OF THE ARBITRATOR AND THE ENTIRE RECORD, THE
CIRCUMSTANCES OF THE CASE APPEAR AS FOLLOWS:
IN OCTOBER 1972, THE AGENCY DECIDED TO ADD A PROGRAM DEVELOPMENT
SPECIALIST, GS-14, POSITION IN ITS PROCUREMENT AND MANAGEMENT ASSISTANCE
(PMA), OFFICE OF BUSINESS DEVELOPMENT (OBD), PROJECT DEVELOPMENT
DIVISION, WASHINGTON, D.C., WHERE, AT THE TIME, THERE WERE TWO
INCUMBENTS IN THAT CLASSIFICATION. THE AGENCY GAVE NOTICE OF THE
VACANCY BY POSTING A JOB OPPORTUNITY ANNOUNCEMENT AND ROSEN, A PRICE
ANALYST, GS-13, IN PMA/OBD, WAS ONE OF THE CANDIDATES. ACCORDING TO THE
ARBITRATOR, IT WAS UNDISPUTED THAT ROSEN WAS PROPERLY SELECTED FOR THE
POSITION ON NOVEMBER 30, 1972. ON THAT DATE, THE SELECTING OFFICIAL
CALLED ROSEN, THEN ON VACATION, AND NOTIFIED HIM THAT HE HAD BEEN
SELECTED TO FILL THE POSITION. THE SELECTING OFFICIAL ADVISED THE
AGENCY'S PERSONNEL OFFICE OF ROSEN'S SELECTION AND, ON DECEMBER 2, 1972,
THAT OFFICE NOTIFIED THE UNSUCCESSFUL CANDIDATES OF ROSEN'S SELECTION.
THE PERSONNEL OFFICE ALSO RECEIVED A FORM SF-52 /2/ REQUESTING THAT
ROSEN'S PROMOTION BE EFFECTED. THE ONLY STEP REMAINING FOR THE
PERSONNEL OFFICE WAS TO MAKE ON A FORM SF-50 /3/ A WRITTEN MEMORIAL OF
ROSEN'S PROMOTION SINCE, ACCORDING TO THE ARBITRATOR, THE FORM SF-52
HAD, IN EFFECT, ALL NECESSARY CONCURRENCES /4/ AND THE ADMINISTRATOR HAD
DELEGATED AUTHORITY TO THE PERSONNEL DIRECTOR TO EXECUTE FORM SF-50'S
WITHOUT FURTHER APPROVAL. HOWEVER, THE AGENCY DELAYED EXECUTION OF A
FORM SF-50 FOR ROSEN UNTIL SIGNED CONCURRENCES OF HIS SELECTION AT THE
ASSOCIATE AND/OR ASSISTANT ADMINISTRATOR LEVELS WERE OBTAINED ON A CO
FORM 164 /5/ AS REQUIRED BY AGENCY INTERNAL ADMINISTRATIVE PROCEDURES.
UNDER THOSE PROCEDURES, ALL PROMOTIONS TO GS-13 POSITIONS AND ABOVE HAD
TO HAVE SUCH CONCURRENCES. THE ARBITRATOR FOUND THAT THE AGENCY'S USE
OF CO FORM 164, WHICH WAS NOT INCORPORATED IN THE AGENCY'S MERIT
PROMOTION PROGRAM, WAS NOT PERMISSIBLE UNDER EITHER THE AGREEMENT, THE
AGENCY'S MERIT PROMOTION PROGRAM OR THE FPM. A PARTIALLY COMPLETED CO
FORM 164 WITH THE NOTATION "WITHIN AUTHORIZED CEILING" WAS SEEN IN
ROSEN'S PERSONNEL FILE AND COPIED BY THE GRIEVANT AND UNION PRESIDENT.
THE PERSONNEL DIRECTOR TESTIFIED THAT HE WAS NOT AWARE OF THE EXISTENCE
OF THE INCOMPLETED FORM; THE AGENCY WAS UNABLE TO PRODUCE IT AT THE
ARBITRATION HEARING BECAUSE, ACCORDING TO THE ARBITRATOR, IT HAD BEEN
REMOVED OR DESTROYED.
ABOUT NOVEMBER 30, 1972, THE DATE THAT ROSEN WAS SELECTED, THE AGENCY
MADE A DECISION TO REDUCE THE NUMBER OF POSITIONS IN PMA FROM 94 TO 86;
ONE OF THE POSITIONS TO BE ELIMINATED WAS THE THIRD POSITION OF PROGRAM
DEVELOPMENT SPECIALIST FOR WHICH ROSEN HAD BEEN SELECTED. THIS DECISION
WAS ANNOUNCED AT AN AGENCY MANAGEMENT MEETING ON DECEMBER 11, 1972. IN
THE MEANTIME, ON DECEMBER 8, 1972, THE ASSOCIATE ADMINISTRATOR OF PMA
REQUESTED THE PERSONNEL DIRECTOR TO CANCEL THE JOB OPPORTUNITY
ANNOUNCEMENT OF THE VACANCY, WHICH ROSEN HAD BEEN SELECTED TO FILL, DUE
TO THE "RECENT REDUCTION IN THE PMA'S CENTRAL OFFICE PERSONNEL CEILING
WHICH HAS NECESSITATED A REORDERING OF PRIORITIES."
ON DECEMBER 14, 1972, PERSONNEL POSTED ANOTHER JOB OPPORTUNITY
ANNOUNCEMENT CANCELLING THE PRIOR JOB OPPORTUNITY ANNOUNCEMENT OF THE
VACANCY IN DISPUTE. ON DECEMBER 18, 1972, THE PERSONNEL OFFICE RETURNED
TO ROSEN HIS ORIGINAL APPLICATION WITH NOTATIONS INFORMING HIM THAT THE
PRIOR JOB OPPORTUNITY ANNOUNCEMENT HAD BEEN CANCELLED, AND THAT ITS
PREVIOUS NOTIFICATION TO ROSEN OF HIS SELECTION FOR THE GS-14 POSITION
WAS AMENDED. AFTER THE VACANCY WAS CANCELLED, A THIRD EMPLOYEE, ALREADY
CLASSIFIED AS A GS-14, WAS BROUGHT IN TO DO THE WORK OF PROGRAM
DEVELOPMENT SPECIALISTS ALONG WITH THE TWO OTHER GS-14'S.
ROSEN FILED A GRIEVANCE, JOINED IN BY THE UNION, STATING THAT THE
BASIS OF THE GRIEVANCE IS THE "AGENCY'S VIOLATION OF THE GENERAL
AGREEMENT ARTICLE XXII, MERIT STAFFING AND PROMOTION" AND, MORE
SPECIFICALLY, ALLEGING A VIOLATION OF ARTICLE XXII, I, OF THE GENERAL
AGREEMENT. /6/ THE GRIEVANCE REQUESTED THAT THE VIOLATION BE REMEDIED
BY THE PROMOTION OF ROSEN TO THE POSITION OF PROGRAM DEVELOPMENT
SPECIALIST, GS-14, WITH BACKPAY TO DECEMBER 10, 1972.
THE AGENCY DENIED THE GRIEVANCE ON THE GROUNDS THAT THE POSITION FOR
WHICH ROSEN HAD BEEN "TENTATIVELY" SELECTED WAS ELIMINATED WHEN
PERSONNEL CEILINGS WERE REDUCED AFTER THE PRESIDENT'S FREEZE DIRECTIVE
(DATED DECEMBER 12, 1972, AND ORDERING A FREEZE ON ALL HIRINGS AND
PROMOTIONS), /7/ AND ITS INTERNAL ADMINISTRATIVE PROCEDURES HAD NOT BEEN
COMPLETED PRIOR TO THE FREEZE.
THE PARTIES ULTIMATELY SUBMITTED THE GRIEVANCE TO ARBITRATION.
THE PARTIES DID NOT ENTER INTO A SUBMISSION AGREEMENT FORMULATING THE
QUESTION OR QUESTIONS TO BE POSED TO THE ARBITRATOR /8/ ; INSTEAD, THEY
SUBMITTED THEIR SEPARATE VERSIONS. THE ARBITRATOR IN HIS DECISION
FORMULATED THE ISSUE AS FOLLOWS:
DID SBA VIOLATE ARTICLE XXII, I, OF THE GENERAL AGREEMENT BETWEEN SBA
AND AFGE, LOCAL 2532,
BY NOT PROMOTING THE GRIEVANT, LEONARD ROSEN, TO THE POSITION OF
PROGRAM DEVELOPMENT
SPECIALIST, GS-14, AFTER HE HAD BEEN SELECTED TO FILL THIS POSITION?
THE PARTIES DO NOT CHALLENGE THIS FORMULATION OF THE ISSUE. HOWEVER,
BOTH THE AGENCY AND THE UNION, WITHOUT OBJECTION, PRESENTED EVIDENCE AND
ARGUMENTS ON OTHER ISSUES SUCH AS THE MEANING AND THE APPLICABILITY OF
THE AGENCY'S MERIT PROMOTION PROGRAM AND THE FPM TO THE GRIEVANT'S CASE.
(IT SHOULD BE NOTED THAT ARTICLE XXII MAKES SPECIFIC REFERENCE TO THE
AGENCY'S MERIT PROMOTION PROGRAM, WHICH WAS ADOPTED IN ACCORDANCE WITH
REQUIREMENTS ESTABLISHED IN THE FPM, CH. 335, SUBCH. 2.)
THE ARBITRATOR DETERMINED THAT THE GRIEVANT SHOULD BE GRANTED ON THE
GROUNDS THAT THE AGENCY'S COURSE OF ACTION FOLLOWING THE GRIEVANT'S
SELECTION FOR THE GS-14 POSITION WAS IN VIOLATION OF THE AGREEMENT. IN
SO DECIDING, HE ALSO DETERMINED THAT THE AGENCY HAD VIOLATED FPM
REQUIREMENTS, AND THE AGENCY'S MERIT PROMOTION PROGRAM. AS A REMEDY,
HIS AWARD ORDERED THE AGENCY TO PLACE ROSEN IN THE POSITION OF PROGRAM
DEVELOPMENT SPECIALIST, GS-14, EFFECTIVE DECEMBER 10, 1972, AND TO
REIMBURSE HIM FOR ANY LOSSES HE MAY HAVE SUFFERED FROM DECEMBER 9, 1972,
TO THE DATE HE IS PLACED IN THE GS-14 POSITION.
THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD WITH
THE COUNCIL. UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE,
THE COUNCIL ACCEPTED THE PETITION FOR REVIEW INSOFAR AS IT RELATES TO
TWO EXCEPTIONS. ONE EXCEPTION ALLEGES THAT THE ARBITRATOR DID NOT
DECIDE THE QUESTION SUBMITTED TO ARBITRATION AND DETERMINED ISSUES NOT
INCLUDED IN THE QUESTION SUBMITTED TO ARBITRATION, AND THEREBY EXCEEDED
HIS AUTHORITY. THE OTHER EXCEPTION ALLEGES THAT THE AWARD VIOLATES THE
BACK PAY ACT (5 U.S.C. 5596) AND THE IMPLEMENTING REGULATIONS PRESCRIBED
BY THE CSC (5 CFR 550.803). THE COUNCIL ALSO GRANTED THE AGENCY'S
REQUEST FOR A STAY PENDING THE COUNCIL'S DETERMINATION OF THE INSTANT
APPEAL.
BOTH THE AGENCY AND THE UNION FILED BRIEFS.
SECTION 2411.37(A) OF THE COUNCIL'S RULES OF PROCEDURE PROVIDES, IN
PERTINENT PART, THAT "AN AWARD OF AN ARBITRATOR SHALL BE MODIFIED, SET
ASIDE IN WHOLE OR IN PART, OR REMANDED ONLY ON GROUNDS THAT THE AWARD
VIOLATES APPLICABLE LAW, APPROPRIATE REGULATION, . . . OR OTHER GROUNDS
SIMILAR TO THOSE APPLIED BY THE COURTS IN PRIVATE SECTOR
LABOR-MANAGEMENT RELATIONS."
WE CONSIDER FIRST THE AGENCY'S EXCEPTION ALLEGING THAT THE ARBITRATOR
EXCEEDED HIS AUTHORITY BY FAILING TO DECIDE THE QUESTION SUBMITTED TO
ARBITRATION AND BY DECIDING ISSUES NOT INCLUDED IN THE QUESTION
SUBMITTED. AS PREVIOUSLY STATED, THE ARBITRATOR'S UNCHALLENGED
FORMULATION OF THE ISSUE /9/ IN THIS CASE IS:
DID SBA VIOLATE ARTICLE XXII, I, OF THE GENERAL AGREEMENT BETWEEN SBA
AND AFGE, LOCAL 2532,
BY NOT PROMOTING THE GRIEVANT, LEONARD ROSEN, TO THE POSITION OF
PROGRAM DEVELOPMENT
SPECIALIST, GS-14, AFTER HE HAD BEEN SELECTED TO FILL THIS POSITION?
WHEN THE SUBSTANCE OF HIS AWARD IS EXAMINED, IT IS CLEAR THAT THE
ARBITRATOR ANSWERED THE QUESTION AT ISSUE, I.E., THE ALLEGED VIOLATION
OF ARTICLE XXII, I. AS PREVIOUSLY STATED, THE ARBITRATOR DETERMINED
THAT THE AGENCY HAD VIOLATED THE AGREEMENT WHICH, OF COURSE, INCLUDES
ARTICLE XXII, I. THIS GENERAL DETERMINATION CLEARLY ENCOMPASSES THE
ARBITRATOR'S ANSWER TO THE SPECIFIC QUESTION AT ISSUE. FURTHERMORE, THE
AWARD GRANTED THE GRIEVANCE, AND THE AGENCY ITSELF CONTENDS THAT THE
VIOLATION OF ARTICLE XXII, I, WAS THE ONLY ISSUE RAISED BY THE
GRIEVANCE.
THE AGENCY ALSO ALLEGES THAT THE ARBITRATOR NEGLECTED TO "INTERPRET"
OR TO DISCUSS THE MEANING OF ARTICLE XXII, I, AND THAT HE DID NOT
MENTION ARTICLE XXII, I, IN HIS OPINION ACCOMPANYING THE AWARD.
HOWEVER, AS THE COUNCIL HAS INDICATED, IT IS THE AWARD RATHER THAN THE
CONCLUSION OR THE SPECIFIC REASONING EMPLOYED THAT IS SUBJECT TO
CHALLENGE. SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 12
AND U.S. DEPARTMENT OF LABOR (DALY, ARBITRATOR, FLRC NO. 72-A55
(SEPTEMBER 17, 1973), REPORT NO. 44. THE ARBITRATOR IS NOT REQUIRED TO
DISCUSS THE SPECIFIC AGREEMENT PROVISION INVOLVED; NOR DOES THE FACT
THAT THE OPINION ACCOMPANYING HIS AWARD DID NOT MENTION ARTICLE XXII, I,
ESTABLISH THAT THE ARBITRATOR DID NOT RULE UPON IT. SEE, E.G., MEAT
CUTTERS, LOCAL 195 V. CROSS BROTHERS MEAT PACKERS, 85 LRRM 2935, 2937
(E.D. PA. 1974) AND CASES CITED THEREIN. IN THIS REGARD, THE SUPREME
COURT STATED IN UNITED STEELWORKERS V. ENTERPRISE WHEEL AND CAR CORP.,
363 U.S. 593, 598 (1960) THAT:
* * * A MERE AMBIGUITY IN THE OPINION ACCOMPANYING AN AWARD, WHICH
PERMITS THE INFERENCE
THAT THE ARBITRATOR MAY HAVE EXCEEDED HIS AUTHORITY, IS NOT A REASON
FOR REFUSING TO ENFORCE
THE AWARD. ARBITRATORS HAVE NO OBLIGATION TO THE COURT TO GIVE THEIR
REASONS FOR AN
AWARD. TO REQUIRE OPINIONS FREE OF AMBIGUITY MAY LEAD ARBITRATORS TO
PLAY IT SAFE BY WRITING
NO SUPPORTING OPINIONS. THIS WOULD BE UNDESIRABLE FOR A
WELL-REASONED OPINION TENDS TO
ENGENDER CONFIDENCE IN THE INTEGRITY OF THE PROCESS AND AIDS IN
CLARIFYING THE UNDERLYING
AGREEMENT. * * *
THESE PRINCIPLES REGARDING THE INTERPRETATION OF NEGOTIATED
PROVISIONS ARE LIKEWISE APPLICABLE IN THE FEDERAL SECTOR UNDER SECTION
2411.32 OF THE COUNCIL'S RULES OF PROCEDURE.
THE AGENCY CONTENDS THAT THE ARBITRATOR DETERMINED ISSUES NOT
INCLUDED IN THE QUESTION AT ISSUE WHEN HE ALSO DETERMINED THAT THE
AGENCY HAD VIOLATED THE AGENCY'S MERIT PROMOTION PROGRAM AND FPM RULES
AND REGULATIONS. IN THIS REGARD, THE AGENCY RELIES ON THE COUNCIL'S
DECISION IN FLRC NO. 72A-3, STATING THAT: " . . . IF THE ARBITRATOR'S
AWARD DETERMINES AN ISSUE NOT INCLUDED IN THE SUBJECT MATTER SUBMITTED
TO ARBITRATION, A CHALLENGE TO THE AWARD WILL BE SUSTAINED ON THE GROUND
THAT THE AWARD IS IN EXCESS OF HIS AUTHORITY." THE AGENCY'S RELIANCE ON
THAT PORTION OF THE DECISION IS MISPLACED. THE COUNCIL'S DECISION IN
FLRC NO. 72A-3 ALSO STATED THAT:
IN ADDITION TO DETERMINING THOSE ISSUES SPECIFICALLY INCLUDED IN THE
PARTICULAR QUESTION
SUBMITTED, THE AWARD MAY EXTEND TO ISSUES THAT NECESSARILY ARISE
THEREFROM.
MOREOVER, AS STATED PREVIOUSLY, BOTH PARTIES PRESENTED, WITHOUT
OBJECTION, THEIR RESPECTIVE POSITIONS ON THE MEANING AND APPLICABILITY
OF THE AGENCY'S MERIT PROMOTION PROGRAM AND THE FPM TO THE GRIEVANT'S
CASE. THUS, THE ARBITRATOR OF NECESSITY CONSIDERED AND DECIDED THE
MEANING OF CSC REQUIREMENTS IN THE FPM PERTAINING TO AGENCY MERIT
PROMOTION PROGRAMS AS WELL AS THE AGENCY'S OWN REGULATIONS ESTABLISHING
SUCH A PROGRAM IN ORDER TO DECIDE THE SPECIFIC QUESTION AT ISSUE. IN
THE FEDERAL SECTOR, ARBITRATORS IN RESOLVING GRIEVANCES UNDER NEGOTIATED
AGREEMENTS MUST OFTEN CONSIDER THE MEANING OF LAW AND REGULATIONS,
INCLUDING THE FPM, SINCE THE AGREEMENTS OFTEN DEAL WITH SUBSTANTIVE
MATTERS WHICH ARE ALSO COVERED BY SUCH LAW OR REGULATIONS. CF. LOCAL
LODGE 830, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
WORKERS, AND LOUISVILLE NAVAL ORDNANCE STATION, DEPARTMENT OF THE NAVY,
FLRC NO. 73A-21 (JANUARY 31, 1974), REPORT NO. 48 AT PP. 6-7 OF THE
COUNCIL'S DECISION. MOREOVER, AS PREVIOUSLY STATED, THE AGENCY'S MERIT
PROMOTION PROGRAM, WHICH WAS ESTABLISHED PURSUANT TO THE FPM, WAS
SPECIFICALLY REFERENCED IN THE NEGOTIATED AGREEMENT ITSELF IN THIS CASE.
THEREFORE, WE ARE OF THE OPINION THAT THE SPECIFIC QUESTION AT ISSUE
NECESSARILY INCLUDED THE ISSUES OF THE AGENCY'S ALLEGED VIOLATION OF THE
AGENCY'S MERIT PROMOTION PROGRAM AND THE FPM.
WE ARE OF THE OPINION THAT THE ARBITRATOR DECIDED THE QUESTION
SUBMITTED TO ARBITRATION, THAT HE DID NOT DETERMINE ISSUES NOT INCLUDED
IN THAT QUESTION, AND THAT HE DID NOT EXCEED HIS AUTHORITY.
AS PREVIOUSLY STATED, THE OTHER QUESTION BEFORE THE COUNCIL IS
WHETHER THE ARBITRATOR'S AWARD VIOLATES THE BACK PAY ACT (5 U.S.C. 5596)
AND CSC IMPLEMENTING REGULATIONS (5 CFR 550.803).
SINCE THE CIVIL SERVICE COMMISSION IS AUTHORIZED, UNDER 5 U.S.C.
5596, TO PRESCRIBE REGULATIONS TO CARRY OUT THE PROVISIONS OF THE ACT,
THAT AGENCY WAS REQUESTED, IN ACCORDANCE WITH COUNCIL PRACTICE, FOR AN
INTERPRETATION OF THE BACK PAY ACT AND THE IMPLEMENTING CSC REGULATIONS
AS THEY PERTAIN TO THE ARBITRATOR'S AWARD OF BACKPAY IN THIS CASE. THE
CIVIL SERVICE COMMISSION REPLIED IN PERTINENT PART AS FOLLOWS:
THE ARBITRATOR GRANTED THE GRIEVANCE AND ORDERED THE SBA TO PLACE THE
GRIEVANT, LEONARD
ROSEN, IN THE POSITION OF PROGRAM DEVELOPMENT SPECIALIST, GS-14, AS
OF DECEMBER 10, 1972, AND
TO PAY HIM THE SALARY HE LOST BEGINNING ON THAT DATE TO THE DATE OF
CORRECTIVE ACTION. THE
AWARD WAS BASED ON THE FINDING THAT THE SBA'S MERIT PROMOTION
PROGRAM, AND THE CSC RULES AND
REGULATIONS WERE VIOLATED BY THE FAILURE TO PROMOTE THE GRIEVANT TO
THE GS-14 POSITION.
OUR EXAMINATION AND VIEW OF THE FILE OF THE WRITTEN OPINION AND
FINDINGS OF THE ARBITRATOR
UPON WHICH HIS AWARD WAS BASED DISCLOSE THAT THE GRIEVANT WAS
PROMOTED, AND, FURTHER, THAT THE
ARBITRATOR FOUND THAT THE GRIEVANT WAS PROMOTED AND THAT THE
PROMOTION WAS SUBSEQUENTLY
CANCELLED. HE FOUND THAT THE GRIEVANT WAS SELECTED FOR PROMOTION AND
THAT THE SF-52 PREPARED
TO EFFECT THE PROMOTION HAD ALL NECESSARY CONCURRENCES. HE FURTHER
FOUND THAT CO FORM 164,
THE COMPLETION OF WHICH WAS A REQUIREMENT BEYOND THAT NECESSARY TO
COMPLETE PROMOTION, WAS
ITSELF PARTIALLY COMPLETED, BUT THAT BOTH CO FORM 164 AND SF-52 WERE
SUBSEQUENTLY DESTROYED TO
"WIPE OUT" THE PROMOTION AND DEFEAT THE GRIEVANT'S RIGHT TO THE
POSITION. THE ARBITRATOR
FOUND:
"AS I REVIEW SBA'S ACTION, IT HAD ALREADY EXERCISED ITS RIGHT TO
PROMOTE GRIEVANT AND HE
WAS ENTITLED TO BE PUT IN THAT POSITION. IF HAVING DONE THAT,
MANAGEMENT THEN WISHED TO
REDUCE JOBS BECAUSE OF CEILING REQUIREMENTS, IT WOULD HAVE HAD TO DO
WITH THE GRIEVANT
OCCUPYING THE NEW GS-14 POSITION, NOT WITH HIM OCCUPYING HIS OLD GS
POSITION."
IT HAS BEEN CONSISTENTLY DEEMED THAT AFTER ALL DISCRETIONARY ACTS
THAT ARE REQUIRED TO
EFFECT A PERSONNEL ACTION HAVE BEEN TAKEN BY AN OFFICER HAVING THE
AUTHORITY TO TAKE THE
ACTION, AND NOTHING REMAINS TO BE DONE EXCEPT MINISTERIAL ACTS, THE
PERSONNEL ACTION IS
COMPLETED, REGARDLESS OF THE FACT THAT MINISTERIAL AND
NONDISCRETIONARY ACTS REMAIN TO BE
DONE. COURT DECISIONS UNIFORMLY HOLD THAT THE APPOINTING ACTION IS
COMPLETED WHEN THE LAST
ACT IN THE EXERCISE OF THE APPOINTING POWER IS PERFORMED. (MARBURY
V. MADISON, (1803), 1
CRANCH 137; U.S. V. LE BARON, (1856), 19 HOW. 73; STATE EX REL
COOGAN V. BARBOUR (1885), 22
A. 686; WITHERSPOON V. STATE (1925), 103 SO. 134; BOARD OF
EDUCATION V. MCCHESNEY (1930), 32
SW2D 26). THE APPOINTING POWER IS EXHAUSTED WHEN THE LAST
DISCRETIONARY ACT IS
COMPLETED. THE APPOINTMENT IS THEN IRREVOCABLE, AND NOT SUBJECT TO
RECONSIDERATION. (U.S. V. SMITH, (1932), 286 U.S. 6; STATE EX REL
CALDERWOOD V. MILLER,
(1900), 57 NE 227; STATE EX REL JEWETT V. SATTI (1947), 54 A.2D
272).
IT IS ALSO GENERALLY HELD THAT THE COMPLETION OF THE ACTS REQUISITE
AND NECESSARY TO
COMPLETE AN APPOINTMENT INCLUDES SOME KIND OF WRITTEN MEMORIAL OF THE
FACT EMANATING FROM THE
APPOINTING POWER. THE PERSONNEL ACTION, IN THIS CASE PROMOTION,
CANNOT BE DEFEATED BY THE
DESTRUCTION OF THE MEMORIAL OR OTHER RECORD OF THE ACTION. FORM
SF-50 IS NOT A REQUISITE TO A
PERSONNEL ACTION, IT IS A REPORT THAT A PERSONNEL ACTION WAS TAKEN.
MR. LEONARD ROSEN, THE
GRIEVANT IN THIS CASE WAS PROMOTED WHEN THE APPOINTING POWER HAD
EXPENDED ITSELF BY THE
COMPLETED EXERCISE OF ALL DISCRETIONARY ACTS NECESSARY TO PROMOTE.
THE FAILURE TO PERFORM
MINISTERIAL ACTS, OR THE DESTRUCTION OF ANY MEMORIAL OF THE COMPLETED
ACTION, DID NOT AFFECT
MR. ROSEN, WHOSE RIGHT TO THE PROMOTION HAD VESTED.
THE ARBITRATOR'S FINDING THAT THE PROMOTION SHOULD BE GIVEN EFFECT
DECEMBER 10, 1972, WAS A
REASONABLE EXERCISE OF THE ARBITRATOR'S AUTHORITY AND DISCRETION.
THE ACCEPTANCE BY THE
AGENCY OF HIS FINDING IS SUFFICIENT ADMINISTRATIVE DETERMINATION THAT
MR. ROSEN UNDERWENT AN
UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION IN THE AGENCY'S FAILURE
TO PAY HIM THE SALARY OF
THE POSITION TO WHICH IT HAD PROMOTED HIM.
IN VIEW OF THE FOREGOING, THERE DOES NOT APPEAR TO BE A QUESTION OF
RETROACTIVE
PROMOTION. RATHER, THE ARBITRATOR RECOGNIZED THE EXISTENCE OF A FACT
OR EVENT THAT OCCURRED
DECEMBER 10, 1972. MR. ROSEN IS THEREFORE ENTITLED TO THE SALARY
PROPERLY ATTENDANT TO THE
HIGHER GRADE, BEGINNING DECEMBER 10, 1972.
BASED UPON THE FOREGOING INTERPRETATION BY THE CIVIL SERVICE
COMMISSION, WE MUST CONCLUDE THAT THE ARBITRATOR'S AWARD DOES NOT
VIOLATE THE BACK PAY ACT (5 U.S.C. 5596) AND THE IMPLEMENTING
REGULATIONS (5 CFR 550.803) PRESCRIBED BY THE CSC.
FOR THE FOREGOING REASONS, WE FIND THAT THE ARBITRATOR DID NOT EXCEED
HIS AUTHORITY AND THAT HE AWARD DOES NOT VIOLATE THE BACK PAY ACT (5
U.S.C. 5596) AND THE IMPLEMENTING REGULATIONS (5 CFR 550.803) PRESCRIBED
BY THE CSC. ACCORDINGLY, PURSUANT TO SECTION 2411.37(B) OF THE
COUNCIL'S RULES OF PROCEDURE, WE SUSTAIN THE ARBITRATOR'S AWARD AND
VACATE THE STAY.
BY THE COUNCIL.
ISSUED: NOVEMBER 6, 1974
/1/ IN SO DECIDING, THE ARBITRATOR ALSO DETERMINED THAT THE AGENCY
VIOLATED THE AGENCY'S MERIT PROMOTION PROGRAM AND THE FEDERAL PERSONNEL
MANUAL (FPM).
/2/ CIVIL SERVICE COMMISSION (CSC) STANDARD FORM 52 TITLED "REQUEST
FOR PERSONNEL ACTION."
/3/ CSC STANDARD FORM 50 TITLED "NOTIFICATION OF PERSONNEL ACTION."
/4/ ACCORDING TO THE ARBITRATOR, THE AGENCY ADMITTEDLY HAD DESTROYED
THE FORM SF-52 FOR ROSEN BY THE TIME OF THE ARBITRATION HEARING.
/5/ THE AGENCY'S CO FORM 164 IS TITLED "PROPOSED PERSONNEL ACTIONS
REVIEW SHEET."
/6/ SECTION I OF ARTICLE XXII (MERIT STAFFING AND PROMOTIONS)
PROVIDES:
IF THERE ARE A SUFFICIENT NUMBER OF BASICALLY QUALIFIED CANDIDATES TO
REQUIRE THE CONVENING
OF A MERIT PROMOTION PANEL, SUCH PANEL SHALL DESIGNATE THOSE WHO ARE
BEST QUALIFIED. IN ANY
CASE IN WHICH A PANEL HAS DESIGNATED AT LEAST FIVE PERSONS AS BEST
QUALIFIED, THE SELECTING
OFFICIAL SHALL SELECT FROM AMONG THOSE DESIGNATED BEST QUALIFIED.
/7/ ON THE FOLLOWING DAY (DECEMBER 13, 1972), THE CSC ISSUED
QUESTIONS AND ANSWERS ABOUT THE FREEZE, WHICH IN RELEVANT PART STATED:
. . . WHERE AN AUTHORIZED OFFICIAL HAS OFFERED A PROMOTION TO A
PROPERLY SELECTED EMPLOYEE
PRIOR TO THE PRESIDENT'S DIRECTIVE, THE PROMOTION MAY BE MADE.
THE ARBITRATOR THEREFORE CONCLUDED THAT THE AGENCY WAS NOT JUSTIFIED
IN USING THE FREEZE AS AN EXCUSE FOR NOT PROMOTING ROSEN AND, MOREOVER,
THAT THE AGENCY'S STATEMENT THE PERSONNEL CEILINGS WERE REDUCED AFTER
THE PRESIDENTIAL FREEZE WAS FACTUALLY INCORRECT BECAUSE THE PMA
ASSOCIATE ADMINISTRATOR HAD ACTED TO CANCEL THE VACANCY ON DECEMBER 8
BEFORE THE FREEZE ORDER WAS ISSUED ON DECEMBER 12, 1972.
/8/ HOWEVER, THE AGENCY CONTENDS, IN EFFECT, THAT THE PARTIES' JOINT
LETTER TO THE FEDERAL MEDIATION AND CONCILIATION SERVICE REQUESTING A
PANEL OF ARBITRATORS WAS A FORM OF SUBMISSION AGREEMENT. THE AGENCY
STATES, WITHOUT CONTRADICTION, THAT THE PARTIES AGREED THERE THE ISSUE
TO BE DETERMINED BY THE ARBITRATOR WAS:
(T)HE INTERPRETATION OF ARTICLE XXII(I) OF THE GENERAL AGREEMENT.
THE UNION'S POSITION
PRIOR TO THIS LETTER WAS THE SAME. (CITATIONS OMITTED.)
/9/ IN THE ABSENCE OF A SUBMISSION AGREEMENT, AS IN THIS CASE, THE
ARBITRATOR'S UNCHALLENGED FORMULATION OF THE QUESTION MAY BE REGARDED AS
THE EQUIVALENT OF A SUBMISSION AGREEMENT. AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 12 (AFGE) AND U.S. DEPARTMENT OF LABOR
(JAFFEE, ARBITRATOR), FLRC NO. 72A-3 (JULY 31, 1973), REPORT NO. 42.
2 FLRC 259; FLRC NO. 74A-55; OCTOBER 31, 1974.
MR. JOHN P. HELM
STAFF ATTORNEY
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES
1737 H STREET, NW.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 74A-55
NFFE LOCAL 997 AND AMES RESEARCH CENTER, NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION, MOFFETT FIELD, CALIFORNIA. THE AGENCY HEAD ISSUED
A DETERMINATION AS TO THE NONNEGOTIABILITY OF A PROPOSAL SUBMITTED BY
NFFE LOCAL 997, WHICH DETERMINATION WAS PROPERLY SERVED ON THE LOCAL ON
JUNE 13, 1974. HOWEVER, APPARENTLY AS A RESULT OF A DELAY IN
COMMUNICATION BETWEEN THE LOCAL AND THE UNION'S NATIONAL OFFICE
CONCERNING THE AGENCY HEAD DETERMINATION AND THE LOCAL'S DESIRE TO
INITIATE AN APPEAL, THE SUBJECT APPEAL WAS NOT FILED UNTIL AUGUST 2,
1974.
COUNCIL ACTION (OCTOBER 31, 1974). THE COUNCIL RULED THAT THE DELAY
IN COMMUNICATION WHICH HERE OCCURRED DOES NOT WARRANT THE WAIVER BY THE
COUNCIL OF THE TIME LIMIT IN ITS RULES, CITING THE EARLIER DECISION IN
NFFE LOCAL 1633 AND U.S. DEPARTMENT OF AGRICULTURE, FEDERAL CROP
INSURANCE CORPORATION, FLRC NO. 73A-14 (MAY 22, 1973), REPORT NO. 39.
ACCORDINGLY, AS THE APPEAL WAS UNTIMELY FILED, AND APART FROM OTHER
CONSIDERATIONS, THE COUNCIL DENIED THE UNION'S PETITION FOR REVIEW.
DEAR MR. HELM:
REFERENCE IS MADE TO YOUR PETITION FOR REVIEW OF AN AGENCY HEAD'S
DECISION ON A NEGOTIABILITY ISSUE, FILED WITH THE COUNCIL IN THE
ABOVE-ENTITLED CASE.
THE COUNCIL HAS CAREFULLY CONSIDERED ALL THE DOCUMENTS SUBMITTED IN
THIS CASE, INCLUDING YOUR PETITION AND THE STATEMENT OF POSITION FILED
BY THE AGENCY. FOR THE REASONS INDICATED BELOW, THE COUNCIL HAS
DETERMINED THAT YOUR PETITION CANNOT BE ACCEPTED FOR REVIEW.
SECTION 2411.23(B) OF THE COUNCIL'S RULES SPECIFICALLY PROVIDES THAT
AN APPEAL MUST BE FILED WITHIN 20 DAYS FROM THE DATE THE AGENCY HEAD'S
DETERMINATION WAS SERVED ON THE LABOR ORGANIZATION. UNDER SECTION
2411.45(A), SUCH APPEAL MUST BE RECEIVED IN THE COUNCIL'S OFFICE BEFORE
THE CLOSE OF BUSINESS OF THE LAST DAY OF THE PRESCRIBED TIME LIMIT.
THE COUNCIL HAS BEEN ADMINISTRATIVELY ADVISED BY THE UNION AND THE
AGENCY THAT THE AGENCY HEAD'S DETERMINATION IN THIS CASE WAS SERVED ON
NFFE LOCAL 997 ON JUNE 13, 1974; THEREFORE, ABSENT ANY EXTENSION OF
TIME GRANTED BY THE COUNCIL, YOUR APPEAL WAS DUE ON JULY 3, 1974. YOUR
PETITION FOR REVIEW WAS FILED WITH THE COUNCIL ON AUGUST 2, 1974.
YOU ASSERT IN YOUR APPEAL THAT THE DATE OF JULY 17, 1974 SHOULD BE
USED IN DETERMINING WHETHER THE PETITION IS TIMELY. YOU INDICATE IN
THIS REGARD THAT, ALTHOUGH THE NATIONAL OFFICE OF NFFE HAD CORRESPONDED
WITH NASA HEADQUARTERS BEFORE THE AGENCY HEAD DETERMINATION HAD BEEN
MADE, THE NATIONAL OFFICE WAS NOT SERVED WITH A COPY OF THE
DETERMINATION AND WAS UNAWARE OF THE DETERMINATION UNTIL THE PRESIDENT
OF NFFE LOCAL 997 CONTACTED THE NATIONAL OFFICE TO REQUEST AN APPEAL TO
THE COUNCIL. THE NATIONAL OFFICE THEN REQUESTED A COPY OF THE
DETERMINATION FROM NASA HEADQUARTERS, WHICH COPY WAS RECEIVED ON JULY
17, 1974 AND IT IS THIS DATE, AS ALREADY MENTIONED, WHICH YOU CONTEND
SHOULD CONSTITUTE THE DATE OF SERVICE ON THE UNION. WE CANNOT AGREE
WITH YOUR CONTENTION.
ACCORDING TO THE RECORD, THE CORRESPONDENCE FROM NFFE'S NATIONAL
OFFICE TO THE AGENCY, BEFORE THE AGENCY HEAD'S DETERMINATION, STATED:
"WE HAVE SUGGESTED TO OUR LOCAL THAT THEY MOVE IMMEDIATELY TO REQUEST
LOCAL MANAGEMENT TO REQUEST A RULING FROM YOUR OFFICE OF THE
NEGOTIABILITY OF THIS ISSUE". THE AGENCY HEAD'S DETERMINATION OF
NONNEGOTIABILITY SUBSEQUENTLY WAS ISSUED REGARDING LOCAL 997'S PROPOSAL
AND WAS PROPERLY SERVED ON THE LOCAL. WHILE THERE APPEARS TO HAVE BEEN
A DELAY IN COMMUNICATION BETWEEN LOCAL 997 AND THE NATIONAL OFFICE OF
NFFE REGARDING THE AGENCY HEAD'S DETERMINATION AND THE LOCAL'S DESIRE
FOR AN APPEAL OF THAT DETERMINATION TO THE COUNCIL, SUCH DELAY DOES NOT
WARRANT THE WAIVER BY THE COUNCIL OF THE TIME LIMIT IN ITS RULES. SEE
NFFE LOCAL 1633 AND U.S. DEPARTMENT OF AGRICULTURE, FEDERAL CROP
INSURANCE CORPORATION, FLRC NO. 73A-14 (MAY 22, 1973), REPORT NO. 39.
ACCORDINGLY, AS YOUR APPEAL WAS UNTIMELY FILED, AND APART FROM OTHER
CONSIDERATIONS, THE COUNCIL HAS DIRECTED THAT YOUR PETITION FOR REVIEW
BE DENIED.
FOR THE COUNCIL.
CC: J. C. FLETCHER
NASA
2 FLRC 253; FLRC NO. 73A-53; OCTOBER 31, 1974.
NATIONAL LABOR RELATIONS
BOARD, REGION 7, AND
NATIONAL LABOR RELATIONS BOARD
AND
DAVID A. NIXON
(SYNOPSIS) FLRC NO. 73A-53
NATIONAL LABOR RELATIONS BOARD, REGION 17, AND NATIONAL LABOR
RELATIONS BOARD, AND DAVID A. NIXON, ASSISTANT SECRETARY CASE NO.
60-3035 (CA). PURSUANT TO SECTION 2411.4 OF THE COUNCIL'S RULES (5 CFR
2411.4) AND SECTION 203.25(D) OF HIS REGULATIONS (29 CFR 203.25(D)), THE
ASSISTANT SECRETARY REFERRED TO THE COUNCIL FOR DECISION THE PRESENT
CASE AS CONCERNS THE FOLLOWING MAJOR POLICY ISSUES: (1) WHETHER
APPLICABLE LAWS AND REGULATIONS, INCLUDING FEDERAL PERSONNEL MANUAL
POLICIES, PRECLUDE AN EMPLOYEE OR HIS REPRESENTATIVE FROM SEEING AND
ADDUCING EVIDENCE FROM ANOTHER EMPLOYEE'S APPRAISAL IN AN UNFAIR LABOR
PRACTICE PROCEEDING HELD PURSUANT TO SECTION 6(A)(4) OF THE ORDER; AND
(2) IF AN EMPLOYEE OR HIS REPRESENTATIVE IS SO PRECLUDED, DOES SUCH
PROHIBITION APPLY ALSO TO THE ASSISTANT SECRETARY, HIS REPRESENTATIVES
AND/OR ADMINISTRATIVE LAW JUDGES ACTING PURSUANT TO THEIR
RESPONSIBILITIES UNDER THE ORDER?
COUNCIL ACTION (OCTOBER 31, 1974). ON THE BASIS OF THE CIVIL SERVICE
COMMISSION'S INTERPRETATION OF THE FEDERAL PERSONNEL MANUAL DIRECTIVES
RELATING TO THE TWO MAJOR POLICY ISSUES POSED, THE COUNCIL HELD THAT THE
FPM: (1) PROHIBITS AN EMPLOYEE OR HIS REPRESENTATIVE FROM SEEING AND
ADDUCING EVIDENCE WITH RESPECT TO THE APPRAISAL OF ANOTHER EMPLOYEE IN
THE CONTEXT OF AN UNFAIR LABOR PRACTICE PROCEEDING; BUT (2) PERMITS THE
ASSISTANT SECRETARY, HIS REPRESENTATIVE AND/OR THE ADMINISTRATIVE LAW
JUDGE, ACTING PURSUANT TO THEIR RESPONSIBILITIES IN A PROCEEDING UNDER
THE ORDER, TO SEE THE APPRAISAL OF ANOTHER EMPLOYEE IF REVIEW OF SUCH
APPRAISAL IS NECESSARY FOR THE EXECUTION OF OFFICIAL RESPONSIBILITY, BUT
ONLY IF DONE IN A MANNER THAT MAINTAINS THE CONFIDENTIALITY OF THAT
APPRAISAL, WHILE ACCOMMODATING THE NEED FOR ESTABLISHMENT OF A FORMAL
FILE IN OPEN PROCEEDING BY ADHERING TO SPECIFIC GUIDELINES, AS FOUND FOR
EXAMPLE IN THE HANDBOOK FOR DISCRIMINATION COMPLAINTS EXAMINERS,
PUBLISHED BY THE COMMISSION IN APRIL 1973. THE COUNCIL DETERMINED THAT
PROCEDURES SIMILAR TO THOSE ENUMERATED IN THE HANDBOOK ARE CONSISTENT
WITH THE PURPOSES OF THE ORDER, THUS ENABLING THE ASSISTANT SECRETARY TO
CARRY OUT HIS RESPONSIBILITIES UNDER THE ORDER TO DECIDE UNFAIR LABOR
PRACTICES, USING ALL THE NECESSARY AND RELEVANT FACTS WHILE PROTECTING
THE FEDERAL EMPLOYEE'S RIGHT OF PRIVACY, AS REQUIRED UNDER APPLICABLE
LAW AND REGULATION.
DURING HIS CONSIDERATION OF A MOTION AND A CROSS MOTION FILED BY THE
PARTIES IN CONNECTION WITH HIS DECISION AND REMAND IN A/SLMR NO. 295,
THE ASSISTANT SECRETARY FOUND THAT CERTAIN MAJOR POLICY ISSUES HAD BEEN
RAISED WHICH REQUIRED RESOLUTION BY THE FEDERAL LABOR RELATIONS COUNCIL.
THEREFORE, PURSUANT TO SECTION 2411.4 OF THE COUNCIL'S RULES AND
SECTION 203.25(D) OF THE ASSISTANT SECRETARY'S REGULATIONS, HE REFERRED
THE FOLLOWING MAJOR POLICY ISSUES TO THE COUNCIL FOR DECISION: (1)
"WHETHER APPLICABLE LAWS AND REGULATIONS, INCLUDING POLICIES SET FORTH
IN THE FEDERAL PERSONNEL MANUAL, PRECLUDE AN EMPLOYEE OR HIS
REPRESENTATIVE FROM SEEING AND ADDUCING EVIDENCE WITH RESPECT TO THE
APPRAISAL OF ANOTHER EMPLOYEE IN THE CONTEXT OF AN UNFAIR LABOR PRACTICE
PROCEEDING HELD PURSUANT TO SECTION 6(A)(4) OF EXECUTIVE ORDER 11491, AS
AMENDED, AND (2), IF AN EMPLOYEE OR HIS REPRESENTATIVE IS SO PRECLUDED
FROM SEEING AND ADDUCING EVIDENCE WITH RESPECT TO THE APPRAISAL OF
ANOTHER EMPLOYEE, DOES SUCH PROHIBITION APPLY ALSO TO THE ASSISTANT
SECRETARY, HIS REPRESENTATIVES AND/OR ADMINISTRATIVE LAW JUDGES ACTING
PURSUANT TO THEIR RESPONSIBILITIES UNDER THE ORDER?"
SINCE THE ISSUES POSED BY THE ASSISTANT SECRETARY'S REFERRAL RAISED A
QUESTION AS TO THE EFFECT OF "APPLICABLE LAW AND REGULATIONS, INCLUDING
POLICIES SET FORTH IN THE FEDERAL PERSONNEL MANUAL," THE COUNCIL ASKED
THE CIVIL SERVICE COMMISSION FOR AN INTERPRETATION OF ITS DIRECTIVES IN
RELATION TO THE TWO MAJOR POLICY ISSUES.
THE COMMISSION REPLIED AS FOLLOWS:
THE APPLICABLE COMMISSION POLICY DIRECTIVE IS FOUND IN SUBCHAPTER 5,
CHAPTER 335 OF THE
FEDERAL PERSONNEL MANUAL, WHICH STATES IN PART THAT
" . . . AN EMPLOYEE IS NOT ENTITLED TO SEE AN APPRAISAL OF ANOTHER
EMPLOYEE. NEVERTHELESS,
THE REPRESENTATIVE OF AN EMPLOYEE (EVEN THOUGH AN EMPLOYEE HIMSELF)
MAY SEE THE EMPLOYEE'S
APPRAISAL, AND AN EMPLOYEE MAY SEE THE APPRAISAL OF OTHER EMPLOYEES
WHEN DICTATED BY HIS
OFFICIAL RESPONSIBILITIES, FOR EXAMPLE, AS MEMBER OF A PROMOTION
BOARD."
THIS DIRECTIVE PROHIBITS AN EMPLOYEE OR HIS REPRESENTATIVE FROM
SEEING THE APPRAISAL OF ANOTHER EMPLOYEE UNDER MOST CIRCUMSTANCES,
INCLUDING THE CIRCUMSTANCES OF CASUAL INTEREST OR THE PURSUIT OF A
COMPLAINT THROUGH GRIEVANCE, UNFAIR LABOR PRACTICE, OR OTHER FORMAL OR
INFORMAL MACHINERY. IT, ON THE OTHER HAND, BY ITS OWN TERMS CLEARLY
PERMITS THE ASSISTANT SECRETARY, HIS REPRESENTATIVE, AN ADMINISTRATIVE
LAW JUDGE, OR ANY OTHER PERSON HAVING OFFICIAL RESPONSIBILITY IN
CONNECTION WITH THE INVESTIGATION, EXAMINATION, OR DECISION ON MATTERS
AT ISSUE IN A PROCEEDING TO SEE THE APPRAISAL OF ANOTHER EMPLOYEE IF
REVIEW OF THE APPRAISAL IS NECESSARY FOR THE EXECUTION OF THAT
RESPONSIBILITY. HOWEVER, SUCH PERSON, UPON GAINING ACCESS TO THE
APPRAISAL, MUST CARRY OUT HIS RESPONSIBILITY (INCLUDING ANY
RESPONSIBILITY HE MAY HAVE TO DEVELOP AND MAKE AVAILABLE A COMPLETE
RECORD OR FILE CONTAINING ALL DOCUMENTS RELATED TO THE PROCEEDING) IN
SUCH A FASHION AS TO NOT COMPROMISE THE FUNDAMENTAL REQUIREMENT THAT,
EXCEPT UNDER LIMITED CIRCUMSTANCES NOT GERMANE HERE, "AN EMPLOYEE IS NOT
ENTITLED TO SEE AN APPRAISAL OF ANOTHER EMPLOYEE."
BASIC TO THE ABOVE POLICY IS THE RECOGNITION THAT DISCLOSURE TO
EMPLOYEES (OR THEIR REPRESENTATIVES) OF SUPERVISORY APPRAISALS OF
PERFORMANCE OF OTHER EMPLOYEES, OR THE INCLUSION OF SUCH APPRAISALS IN
AN OPEN FILE, IS POTENTIALLY CLEARLY INVASIVE OF THEIR PERSONAL PRIVACY.
THE ABOVE POLICY, AND THIS INTERPRETATION, ALSO RECOGNIZES THAT
"OFFICIAL RESPONSIBILITIES" IN THE CONTEXT OF THE ABOVE CITED DIRECTIVE
REFERS TO THOSE RESPONSIBILITIES OFFICIALLY ASSIGNED, SUPERVISED, ETC.,
BY OR THROUGH APPROPRIATE AGENCY AUTHORITY. THE FACT THAT A FUNCTION
MAY APPROPRIATELY BE PERFORMED ON OFFICIAL TIME DOES NOT ALONE SERVE TO
BRING IT WITHIN THE EMBRACE OF THE TERM, "OFFICIAL RESPONSIBILITIES."
REASONABLE AMOUNTS OF OFFICIAL TIME MAY BE PERMITTED FOR A NUMBER OF
ACTIVITIES THAT ARE NOT APPROPRIATELY DIRECTED OR SUPERVISED BY PROPER
AGENCY AUTHORITY AND WHICH SIMPLY COULD NOT BE REASONABLY CONSTRUED AS
OFFICIAL RESPONSIBILITIES OF THE EMPLOYEE INVOLVED. EXAMPLES INCLUDE
OFFICIAL TIME FOR AN EMPLOYEE TO PREPARE AN ADVERSE ACTION DEFENSE, OR
OFFICIAL TIME TO SERVE AS A MEMBER OF A UNION NEGOTIATING TEAM.
THE ABOVE POLICY OF COURSE RAISES THE SECONDARY QUESTION OF HOW AN
EMPLOYEE WHO HAS ACCESS TO AN APPRAISAL BY VIRTUE OF HIS OFFICIAL
RESPONSIBILITY FOR INVESTIGATIONS, EXAMINING, OR ADJUDICATING A
COMPLAINT CAN PROTECT THE PRIVACY OF EMPLOYEES BY MAINTAINING THE
CONFIDENTIALITY OF THAT APPRAISAL UNDER CIRCUMSTANCES WHERE THAT
OFFICIAL IS REQUIRED TO DEVELOP AND MAKE AVAILABLE A COMPLETE RECORD OR
FILE CONTAINING ALL DOCUMENTS RELATING TO THE PROCEEDING.
ILLUSTRATIONS OF HOW THIS MAY BE ACCOMPLISHED ARE FOUND IN A NUMBER
OF PROCEEDINGS FOR WHICH THE COMMISSION HAS RESPONSIBILITY. FOR
EXAMPLE, THE GRIEVANCE SYSTEM ESTABLISHED UNDER THE AUTHORITY OF PART
771 OF THE CIVIL SERVICE REGULATIONS REQUIRES, AS A MATTER OF GRIEVANCE
POLICY, THAT AN AGENCY GRIEVANCE EXAMINER "MUST ESTABLISH AN EMPLOYEE
GRIEVANCE FILE. THIS IS AN INDEPENDENT FILE, SEPARATE AND DISTINCT FROM
THE OFFICIAL PERSONNEL FOLDER. THE GRIEVANCE FILE IS THE OFFICIAL
RECORD OF THE GRIEVANCE PROCEEDINGS AND MUST CONTAIN ALL DOCUMENTS
RELATED TO THE GRIEVANCE . . . " (SUBCHAPTER 3 OF FEDERAL PERSONNEL
MANUAL CHAPTER 771)
HOWEVER, WITH RESPECT TO MATTERS THAT CANNOT BE DISCLOSED TO THE
GRIEVANT, SUBCHAPTER 1 OF THAT CHAPTER PROVIDES, IN PERTINENT PART, THAT
"INFORMATION TO WHICH THE EXAMINER IS EXPOSED WHICH CANNOT BE MADE
AVAILABLE TO THE EMPLOYEE IN THE FORM IN WHICH IT WAS RECEIVED MUST BE
INCLUDED IN THE FILE IN A FORM WHICH THE EMPLOYEE CAN REVIEW OR MUST NOT
BE USED." THUS, UNDER THAT GRIEVANCE SYSTEM, AN EXAMINER MAY CONCLUDE
THAT THE CONTENTS OF A SUPERVISORY APPRAISAL ARE EITHER NOT RELEVANT OR
NOT NECESSARY FOR THE RESOLUTION OF THE MATTER AND THUS NEED NOT BE MADE
A PART OF THE FILE OR, IF ITS CONTENTS ARE RELEVANT AND NECESSARY, THEN
HE MUST INCLUDE IT IN THE FILE "IN A FORM WHICH THE EMPLOYEE CAN
REVIEW."
FOR AN ILLUSTRATION OF HOW THIS CAN BE DONE, WE DRAW FROM ANOTHER
PROCEEDING-- COMPLAINTS OF DISCRIMINATION PROCESSED UNDER PART 713 OF
THE CIVIL SERVICE REGULATIONS. THE HANDBOOK FOR DISCRIMINATION
COMPLAINTS EXAMINERS PUBLISHED BY THE COMMISSION IN APRIL, 1973, GIVES
SPECIFIC INSTRUCTIONS IN THIS AREA AND DOES SO WITH SPECIFIC REFERENCE
TO SUPERVISORY APPRAISALS OF PERFORMANCE. THAT HANDBOOK PROVIDES AS
FOLLOWS:
"SUPERVISORY APPRAISALS
1. DISCLOSURE-- AN INVASION OF PRIVACY
THE DISCLOSURE OF SUPERVISORY APPRAISALS OF PERFORMANCE AND POTENTIAL
OF EMPLOYEES OTHER
THAN THE COMPLAINANT, TO THE COMPLAINANT, CONSTITUTES AN UNWARRANTED
INVASION OF THE PERSONAL
PRIVACY OF THE EMPLOYEES CONCERNED. HOWEVER, THIS DOES NOT PRECLUDE
THE INVESTIGATOR OR
COMPLAINTS EXAMINER FROM REVIEWING THE SUPERVISORY APPRAISALS OF
OTHER EMPLOYEES AND INCLUDING
INFORMATION FROM THEM IN THE RECORD TO THE EXTENT THAT THIS CAN BE
DONE WITHOUT IDENTIFYING A
PARTICULAR EMPLOYEE AS BEING THE SUBJECT OF A PARTICULAR APPRAISAL.
WITNESSES MAY TESTIFY AT
A HEARING TO MATTERS RELEVANT TO SUPERVISORY APPRAISALS OF
PERFORMANCE AND POTENTIAL OF
EMPLOYEES.
2. CONCEALING NAME OF PERSON APPRAISED
WHEN THE SUPERVISORY APPRAISALS OF SEVERAL OTHER EMPLOYEES ARE
INVOLVED IN A COMPLAINT, IT
MIGHT BE POSSIBLE TO MAKE THEM ANONYMOUS BY TAPING OVER OR OTHERWISE
CONCEALING THE
EMPLOYEES' NAMES AND OTHER IDENTIFYING INFORMATION. COPIES OF THE
TAPED-OVER APPRAISALS CAN
THEN BE MADE AND INCLUDED IN THE FILE. IF THE FORM AND CONTENT OF
THE APPRAISALS DO NOT LEND
THEMSELVES TO THIS KIND OF TREATMENT TO ASSURE CONFIDENTIALITY, IT
MAY BE POSSIBLE TO INCLUDE
PERTINENT EXTRACTS AND, IF SO, THIS SHOULD BE DONE.
3. NARRATIVE STATEMENT OF
IF THERE IS NOT WAY THAT THE APPRAISALS OR EXTRACTS THEREFROM CAN BE
INCLUDED WITHOUT
IDENTIFYING THE SUBJECT OF EACH APPRAISAL, THE ONLY ALTERNATIVE IS
FOR THE INVESTIGATOR OR
COMPLAINTS EXAMINER TO INCLUDE IN THE RECORD A NARRATIVE STATEMENT OF
THE RESULTS OF HIS
REVIEW OF THE APPRAISALS. THIS CAN CONSIST OF SOMETHING AS SIMPLE AS
A STATEMENT THAT THE
INVESTIGATOR OR EXAMINER HAD FOUND THE APPRAISALS NOT MATERIAL TO THE
COMPLAINT, OR SOMETHING
AS EXTENSIVE AS A PARAPHRASE OF EACH APPRAISAL.
4. CHALLENGE TO ACCURACY OF NARRATIVE STATEMENTS
IF THE COMPLAINANT CHALLENGES THE ACCURACY OF THE MATERIAL INCLUDED
BY THE INVESTIGATOR
CONCERNING OTHER EMPLOYEES' APPRAISALS, THE EXAMINER MAY VERIFY THE
ACCURACY OF THAT MATERIAL
BY REVIEWING THE APPRAISALS HIMSELF. SIMILARLY, THE DECIDING
OFFICIAL CAN MAKE AN INDEPENDENT
VERIFICATION IF HE FEELS THE NEED TO DO SO. THIS WOULD NOT BE IN
CONFLICT WITH THE
INSTRUCTIONS IN APPENDIX B OF FPM CHAPTER 713 BECAUSE THE PURPOSE OF
ANY REVIEW OF THE
APPRAISALS BY THE EXAMINER OR THE DECIDING OFFICIAL WOULD BE TO
ASSURE THE ACCURACY OF THE
INFORMATION IN THE RECORD, NOT TO ACQUIRE AND CONSIDER INFORMATION
NOT IN THE RECORD."
THE ABOVE ILLUSTRATIONS ARE CITED NOT TO SUGGEST THEIR SPECIFIC
APPLICABILITY IN THE CASE AT HAND BUT RATHER TO ILLUSTRATE HOW THE
POLICY OF NONDISCLOSURE OF SUPERVISORY APPRAISALS CITED IN CHAPTER 335
OF THE FEDERAL PERSONNEL MANUAL MAY BE ACCOMMODATED IN OPEN PROCEEDINGS
WHERE A FORMAL FILE OR RECORD IS REQUIRED TO BE ESTABLISHED.
THEREFORE, IN RESPONSE TO THE ASSISTANT SECRETARY'S QUESTIONS, THE
FEDERAL PERSONNEL MANUAL: (1) PROHIBITS AN EMPLOYEE OR HIS
REPRESENTATIVE FROM SEEING AND ADDUCING EVIDENCE WITH RESPECT TO THE
APPRAISAL OF ANOTHER EMPLOYEE IN THE CONTEXT OF AN UNFAIR LABOR PRACTICE
PROCEEDING, BUT (2) PERMITS THE ASSISTANT SECRETARY, HIS REPRESENTATIVE
AND/OR THE ADMINISTRATIVE LAW JUDGE, ACTING PURSUANT TO THEIR
RESPONSIBILITIES IN A PROCEEDING UNDER THE ORDER, TO SEE THE APPRAISAL
OF ANOTHER EMPLOYEE IF REVIEW OF SUCH APPRAISAL IS NECESSARY FOR THE
EXECUTION OF OFFICIAL RESPONSIBILITY, BUT ONLY IF DONE IN A MANNER THAT
MAINTAINS THE CONFIDENTIALITY OF THAT APPRAISAL, WHILE ACCOMMODATING THE
NEED FOR ESTABLISHMENT OF A FORMAL FILE IN OPEN PROCEEDING BY ADHERING
TO THE GUIDELINES SET FORTH IN THE CIVIL SERVICE COMMISSION RESPONSE.
WHILE THE COUNCIL NOTES THAT THE CIVIL SERVICE REGULATIONS SET FORTH
BY WAY OF EXAMPLE ARE NOT BY THEIR OWN TERMS APPLICABLE TO THE SITUATION
HERE PRESENTED, ADOPTION OF SUBSTANTIALLY SIMILAR PROCEDURES BY THE
ASSISTANT SECRETARY WOULD BE CONSISTENT WITH THE PURPOSES OF THE ORDER
WHILE STILL PROTECTING THE PRIVACY OF THE FEDERAL EMPLOYEES, AS REQUIRED
BY APPLICABLE LAW AND REGULATION. THAT IS, SUCH PROCEDURES WOULD ENABLE
THE ASSISTANT SECRETARY TO CARRY OUT HIS RESPONSIBILITY OF DECIDING
UNFAIR LABOR PRACTICE COMPLAINTS BASED UPON ALL NECESSARY AND RELEVANT
FACTS, AND STILL PROTECT THE PRIVACY OF FEDERAL EMPLOYEES.
BY THE COUNCIL.
ISSUED: OCTOBER 31, 1974
2 FLRC 250; FLRC NO. 74A-35; OCTOBER 30, 1974.
MR. WALLACE G. RONEY
ACTING PRESIDENT
U.S. MARSHALS ASSOCIATION, IND.
P.O. BOX 1349
WASHINGTON, D.C. 20013
(SYNOPSIS) FLRC NO. 74A-35
U.S. MARSHALS SERVICE, DISTRICT OF COLUMBIA, ASSISTANT SECRETARY CASE
NO. 22-5174 (RO). THE ASSISTANT SECRETARY UPHELD THE ASSISTANT REGIONAL
DIRECTOR'S DISMISSAL OF A CROSS-REPRESENTATION PETITION FILED BY THE
U.S. MARSHALS ASSOCIATION, IND., FINDING THAT THE CROSS-PETITION WAS NOT
TIMELY FILED; THAT INSUFFICIENT EVIDENCE WAS ADDUCED OF ANY PREJUDICIAL
STATEMENTS OR CONDUCT OF ANY AREA OFFICE EMPLOYEE; AND THAT ALLEGATIONS
BY THE MARSHALS ASSOCIATION CONCERNING THE LEGALITY AND VALIDITY OF THE
WAIVER OF EXCLUSIVE RECOGNITION BY AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES LOCAL 2272 WOULD NOT BE CONSIDERED, BEING RAISED FOR THE FIRST
TIME IN THE REQUEST FOR REVIEW SUBMITTED TO THE ASSISTANT SECRETARY.
THE MARSHALS ASSOCIATION APPEALED TO THE COUNCIL, CONTENDING THAT THE
DECISION OF THE ASSISTANT SECRETARY APPEARS ARBITRARY AND CAPRICIOUS
BECAUSE OF HIS REFUSAL TO CONSIDER ALLEGATIONS ERRONEOUSLY FOUND TO BE
RAISED FOR THE FIRST TIME ON APPEAL, AND HIS REFUSAL TO EXPLAIN THE AREA
OFFICE POLICY IN COUNTING THE POSTING PERIOD; AND THAT A MAJOR POLICY
ISSUE IS PRESENTED AS TO WHETHER AN OFFICER OF A LOCAL MAY WAIVE
EXCLUSIVE RECOGNITION OR WHETHER LOCAL MEMBERS MUST BE GIVEN AN
OPPORTUNITY TO VOTE ON THE MATTER.
COUNCIL ACTION (OCTOBER 30, 1974). THE COUNCIL HELD THAT THE
ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY AND CAPRICIOUS
SINCE IT DOES NOT APPEAR THAT THE ASSISTANT SECRETARY ACTED WITHOUT
JUSTIFICATION IN HIS FINDINGS. THE COUNCIL NOTED IN THIS REGARD THAT
THE ASSISTANT SECRETARY RELIED UPON ESTABLISHED POLICY REFLECTED IN HIS
RULES AND IN HIS PREVIOUSLY PUBLISHED REPORT NUMBER 46. THE COUNCIL
ALSO HELD THAT THE SUBJECT DECISION DOES NOT PRESENT A MAJOR POLICY
ISSUE, SINCE NO PERSUASIVE REASONS WERE ADVANCED FOR OVERTURNING THE
ASSISTANT SECRETARY'S POLICY THAT AN OFFICER OF A LABOR ORGANIZATION MAY
WAIVE EXCLUSIVE RECOGNITION. ACCORDINGLY, WITHOUT PASSING ON THE
TIMELINESS OF THE MARSHALS ASSOCIATION APPEAL TO THE COUNCIL, THE
COUNCIL DENIED REVIEW OF THE APPEAL UNDER SECTION 2411.12 OF THE
COUNCIL'S RULES OF PROCEDURE (5 CFR 2411.12). THE COUNCIL LIKEWISE
DENIED VARIOUS PROCEDURAL REQUESTS BY THE MARSHALS ASSOCIATION.
DEAR MR. RONEY:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
THE ASSISTANT SECRETARY UPHELD THE ASSISTANT REGIONAL DIRECTOR'S
DISMISSAL OF AN RO PETITION FILED IN THE ABOVE NAMED CASE BY THE
WASHINGTON, D.C. UNITED STATES MARSHALS ASSOCIATION, IND. IN DOING SO
HE FOUND: (1) THAT THE SUBJECT CROSS-PETITION WAS NOT TIMELY FILED IN
ACCORDANCE WITH SECTION 202.5(B) OF HIS REGULATIONS AND IN THE ABSENCE
OF SUFFICIENT EVIDENCE ESTABLISHING GOOD CAUSE FOR EXTENDING THE POSTING
PERIOD OF THE INITIAL PETITION (CASE NO. 22-5070 (RO)); (2) NO
INDICATION OF ANY IMPROPER STATEMENTS OR CONDUCT ON THE PART OF ANY LMSA
AREA OFFICE EMPLOYEES (OTHER THAN YOUR BARE ASSERTIONS) WHICH IN ANY WAY
MIGHT BE PREJUDICIAL TO THE UNION'S POSITION; AND (3) ALLEGATIONS
CONCERNING THE LEGALITY AND VALIDITY OF THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2272'S WAIVER OF EXCLUSIVE RECOGNITION WOULD
NOT BE CONSIDERED BECAUSE IT WAS RAISED FOR THE FIRST TIME IN THE
REQUEST FOR REVIEW.
IN YOUR APPEAL YOU CONTEND, IN SUMMARY, THAT THE DECISION OF THE
ASSISTANT SECRETARY IS ARBITRARY AND CAPRICIOUS BECAUSE OF HIS REFUSAL
TO CONSIDER ALLEGATIONS ERRONEOUSLY FOUND BY THE ASSISTANT SECRETARY TO
BE RAISED FOR THE FIRST TIME ON APPEAL, CONCERNING THE "ILLEGAL AND
INVALID" WAIVER OF EXCLUSIVE RECOGNITION BY AFGE AND THE POSTING OF THE
NOTICE OF PETITION DURING A PERIOD WHEN 85% OF THE EMPLOYEES AT THE
MARSHALS OFFICE WERE ON LEAVE OR DETAIL, AND HIS REFUSAL TO EXPLAIN THE
WASHINGTON AREA OFFICE POLICY "IN COUNTING THE TEN-DAY POSTING PERIOD IN
A NATIONWIDE PETITION." ADDITIONALLY, IN EFFECT, YOU CONTEND THAT THE
ASSISTANT SECRETARY'S DECISION PRESENTS A MAJOR POLICY ISSUE AS TO
WHETHER AN OFFICER OF A LOCAL MAY WAIVE EXCLUSIVE RECOGNITION OR WHETHER
LOCAL MEMBERS MUST BE GIVEN AN OPPORTUNITY TO VOTE ON THE MATTER. THE
APPEAL ALSO REQUESTED THE COUNCIL TO STAY THE ASSISTANT SECRETARY'S
DECISION AND TO HOLD THE AFGE PETITION IN ABEYANCE PENDING THE COUNCIL
DECISION IN THE INSTANT APPEAL.
IN OUR VIEW, YOUR PETITION FOR REVIEW OF THE ASSISTANT SECRETARY'S
DECISION DOES NOT MEET THE REQUIREMENTS OF SECTION 2411.12 OF THE
COUNCIL RULES; HIS FINDINGS AND DECISION DO NOT APPEAR ARBITRARY AND
CAPRICIOUS NOR DO THEY PRESENT A MAJOR POLICY ISSUE. WITH RESPECT TO
YOUR CONTENTIONS, IT DOES NOT APPEAR THAT THE ASSISTANT SECRETARY ACTED
WITHOUT REASONABLE JUSTIFICATION IN HIS DECISION. INSTEAD, THE
ASSISTANT SECRETARY RELIED UPON ESTABLISHED POLICY REFLECTED IN HIS
RULES AND PREVIOUSLY PUBLISHED REPORT NUMBER 46. FURTHER, YOUR APPEAL
PRESENTS NO PERSUASIVE REASONS FOR OVERTURNING THE ASSISTANT SECRETARY'S
POLICY THAT AN OFFICER OF A LABOR ORGANIZATION MAY WAIVE EXCLUSIVE
RECOGNITION. THEREFORE, WE CONCLUDE THAT THE ASSISTANT SECRETARY'S
DECISION DOES NOT PRESENT A MAJOR POLICY ISSUE.
ACCORDINGLY, WITHOUT PASSING UPON THE QUESTION OF THE TIMELINESS OF
YOUR PETITION FOR REVIEW WHICH WAS FILED WITH THE COUNCIL, REVIEW OF
YOUR APPEAL IS HEREBY DENIED SINCE IT FAILS TO MEET THE REQUIREMENTS AS
PROVIDED UNDER SECTION 2411.12 OF THE COUNCIL'S RULES OF PROCEDURE.
LIKEWISE THE COUNCIL HAS DIRECTED THAT THE UNION'S REQUESTS FOR STAYS BE
DENIED UNDER SECTION 2411.47(C) OF THE COUNCIL'S RULES OF PROCEDURE.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
K. HOLECKO
DEPT. OF JUSTICE
C. WEBBER
AFGE
2 FLRC 246; FLRC NO. 73A-60; OCTOBER 30, 1974.
DEPARTMENT OF THE AIR FORCE
ELLSWORTH AIR FORCE BASE,
SOUTH DAKOTA
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL NO. 179
(SYNOPSIS) FLRC NO. 73A-60
DEPARTMENT OF THE AIR FORCE, ELLSWORTH AIR FORCE BASE, SOUTH DAKOTA,
ASSISTANT SECRETARY CASE NO. 60-3412 (RO). THE ASSISTANT SECRETARY
UPHELD THE ASSISTANT REGIONAL DIRECTOR'S DENIAL OF A REQUEST BY THE
INCUMBENT UNION, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL NO. 179
(NFFE), TO INTERVENE IN A REPRESENTATION PROCEEDING INITIATED BY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO. THE ASSISTANT
SECRETARY FOUND THAT NFFE HAD FAILED TO SHOW GOOD CAUSE FOR ITS FAILURE
TO COMPLY WITH HIS REGULATION (SECTION 202.5(C)) REQUIRING SIMULTANEOUS
SERVICE ON INTERESTED PARTIES OF SUCH A REQUEST TO INTERVENE, OR TO
RAISE ANY MATERIAL ISSUE WHICH WOULD WARRANT REVERSAL OF THE ASSISTANT
REGIONAL DIRECTOR'S ACTION. THE COUNCIL ACCEPTED THE ASSISTANT
SECRETARY'S DECISION FOR REVIEW, FINDING THAT A MAJOR POLICY ISSUE WAS
PRESENT, NAMELY: THE PROCEDURAL RESPONSIBILITY OF THE ASSISTANT
SECRETARY UNDER THE ORDER IN THE PROCESSING OF MATTERS BROUGHT BEFORE
HIM PURSUANT TO HIS REGULATIONS-- NOTING PARTICULARLY IN THIS CASE THAT
THE ACTING AREA ADMINISTRATOR HAD INITIALLY, WITHIN THE CRITICAL TEN-DAY
PERIOD, INFORMED THE OTHER PARTIES THAT NFFE "HAS INTERVENED IN THIS
MATTER PURSUANT TO SECTION 202.5 OF THE REGULATIONS OF THE ASSISTANT
SECRETARY AND WILL BE PERMITTED TO PARTICIPATE IN THESE PROCEEDINGS"
(REPORT NO. 51).
COUNCIL ACTION (OCTOBER 30, 1974). THE COUNCIL HELD THAT THE
ASSISTANT SECRETARY IS EMPOWERED TO PRESCRIBE REGULATIONS NEEDED TO
ADMINISTER HIS FUNCTIONS UNDER THE ORDER; THAT SECTION 202.5 OF HIS
REGULATIONS IS A PROPER EXERCISE OF HIS AUTHORITY; AND THAT THE
ASSISTANT SECRETARY AS THE ISSUER OF THE SUBJECT REGULATION IS
RESPONSIBLE FOR ITS INTERPRETATION AND IMPLEMENTATION. HOWEVER, THE
COUNCIL FURTHER RULED THAT THE ASSISTANT SECRETARY MUST APPLY HIS
REGULATIONS IN SUCH A MANNER AS TO REASONABLY ASSURE THAT THE RIGHTS OF
AFFECTED AGENCIES, LABOR ORGANIZATIONS AND EMPLOYEES UNDER THE ORDER ARE
PROTECTED. THIS RESPONSIBILITY IS PARTICULARLY CRITICAL WHERE THE RIGHT
OF EMPLOYEES TO SELECT THEIR EXCLUSIVE REPRESENTATIVE MAY BE ABRIDGED.
THE COUNCIL CONCLUDED THAT UNDER THE PARTICULAR CIRCUMSTANCES OF THE
CASE, THE ASSISTANT SECRETARY'S APPLICATION OF HIS REGULATIONS DID NOT
ASSURE THAT NFFE'S RIGHT TO PARTICIPATE IN THE PROCEEDING WAS PROTECTED
AND THE DENIAL OF NFFE'S INTERVENTION IN THE CASE ABRIDGED THE RIGHT OF
THE AFFECTED EMPLOYEES TO SELECT THE EXCLUSIVE REPRESENTATIVE OF THEIR
CHOICE AND WAS THEREFORE INCONSISTENT WITH THE PURPOSES OF THE ORDER.
THE COUNCIL SET ASIDE THE ASSISTANT SECRETARY'S DENIAL OF NFFE'S
INTERVENTION REQUEST AND REMANDED THE MATTER TO THE ASSISTANT SECRETARY
FOR APPROPRIATE ACTION CONSISTENT WITH THE DECISION OF THE COUNCIL.
THIS IS AN APPEAL FROM THE ASSISTANT SECRETARY'S DECISION UPHOLDING
THE ASSISTANT REGIONAL DIRECTOR'S DENIAL OF A REQUEST BY THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES (NFFE) TO INTERVENE IN A REPRESENTATION
PROCEEDING.
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (AFGE) FILED
A PETITION FOR EXCLUSIVE RECOGNITION BETWEEN THE 90TH AND 60TH DATE
PRECEDING THE EXPIRATION OF AN AGREEMENT BETWEEN THE ACTIVITY AND NFFE,
WHICH HAD BEEN THE EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES IN THE UNIT
SOUGHT FOR NEARLY EIGHT YEARS. NFFE WAS NOTIFIED IN WRITING BY THE AREA
OFFICE OF THE FILING OF THE PETITION AND GIVEN INSTRUCTIONS AS TO THE
REQUIRED PROCEDURES NECESSARY FOR IT TO REQUEST INTERVENTION IN THE
PROCEEDING. OF SIGNIFICANCE TO THE INSTANT CASE IS THE FACT THAT THE
LETTER MADE NO MENTION OF A REQUIREMENT FOR SIMULTANEOUS SERVICE OF SUCH
A REQUEST ON THE OTHER PARTIES TO THE CASE. NFFE FILED A TIMELY REQUEST
TO INTERVENE IN THE PROCEEDINGS AND THE AREA ADMINISTRATOR SUBSEQUENTLY
NOTIFIED NFFE, AFGE AND THE ACTIVITY (DURING THE TEN-DAY INTERVENTION
PERIOD) THAT NFFE HAD INTERVENED IN THE CASE AND WOULD BE PERMITTED TO
PARTICIPATE IN THE PROCEEDINGS. HOWEVER, AFTER THE CLOSE OF THE TEN-DAY
INTERVENTION PERIOD A MOTION WAS FILED BY THE ACTIVITY SEEKING DISMISSAL
OF THE REQUEST FOR INTERVENTION ON THE BASIS OF THE FACT THAT NFFE HAD
FAILED TO SERVE SIMULTANEOUSLY THE REQUEST ON ALL INTERESTED PARTIES.
SUBSEQUENT TO AN ORDER TO SHOW CAUSE WHY THE REQUEST FOR INTERVENTION
SHOULD NOT BE DISMISSED, THE ASSISTANT REGIONAL DIRECTOR GRANTED THE
AGENCY'S MOTION FOR DISMISSAL OF NFFE'S REQUEST FOR INTERVENTION.
UPON A REQUEST FOR REVIEW FILED BY NFFE, THE ASSISTANT SECRETARY
UPHELD THE ASSISTANT REGIONAL DIRECTOR'S DENIAL OF THE REQUEST TO
INTERVENE, FINDING THAT NFFE HAD FAILED TO SHOW GOOD CAUSE FOR ITS
FAILURE TO COMPLY WITH SECTION 202.5(C) /1/ OF THE ASSISTANT SECRETARY'S
REGULATIONS OR TO RAISE ANY MATERIAL ISSUE WHICH WOULD WARRANT REVERSAL
OF THE ASSISTANT REGIONAL DIRECTOR'S ACTION. THE ASSISTANT SECRETARY
ALSO NOTED THAT THE SIMULTANEOUS SERVICE REQUIREMENT WAS CLEARLY SET OUT
IN THE "NOTICE TO EMPLOYEES" (LMSA 1102) WHICH HAD BEEN POSTED BY THE
ACTIVITY.
THE COUNCIL ACCEPTED THE ASSISTANT SECRETARY'S DECISION FOR REVIEW,
FINDING THAT A MAJOR POLICY ISSUE WAS PRESENT, NAMELY: THE PROCEDURAL
RESPONSIBILITIES OF THE ASSISTANT SECRETARY UNDER THE ORDER IN THE
PROCESSING OF MATTERS BROUGHT BEFORE HIM PURSUANT TO HIS REGULATIONS--
NOTING PARTICULARLY IN THIS CASE THAT THE ACTING AREA ADMINISTRATOR HAD
INITIALLY, WITHIN THE CRITICAL TEN-DAY PERIOD, INFORMED THE OTHER
PARTIES THAT NFFE "HAS INTERVENED IN THIS MATTER PURSUANT TO SECTION
202.5 OF THE REGULATIONS OF THE ASSISTANT SECRETARY AND WILL BE
PERMITTED TO PARTICIPATE IN THESE PROCEEDINGS."
SECTION 6(A) OF THE EXECUTIVE ORDER PROVIDES FOR THE FUNCTIONS OF THE
ASSISTANT SECRETARY, INCLUDING THE RESPONSIBILITY TO DECIDE QUESTIONS AS
TO APPROPRIATE UNIT FOR THE PURPOSE OF EXCLUSIVE RECOGNITION AND RELATED
ISSUES, AND SUPERVISING ELECTIONS TO DETERMINE WHETHER A LABOR
ORGANIZATION IS THE CHOICE OF A MAJORITY OF THE EMPLOYEES IN AN
APPROPRIATE UNIT AS THEIR EXCLUSIVE REPRESENTATIVE, AND CERTIFYING THE
RESULTS. SECTION 6(D) EMPOWERS THE ASSISTANT SECRETARY TO PRESCRIBE
REGULATIONS NEEDED TO ADMINISTER HIS FUNCTIONS UNDER THE ORDER. CLEARLY
SECTION 202.5(C) OF THE ASSISTANT SECRETARY'S REGULATIONS, WHICH IS PART
OF THE PROCEDURE WHEREBY DECISIONS ARE MADE AS TO APPROPRIATE UNIT AND
PARTICIPATION IN ELECTIONS TO DETERMINE AN EXCLUSIVE REPRESENTATIVE, IS
A PROPER EXERCISE OF THE ASSISTANT SECRETARY'S AUTHORITY. MOREOVER, THE
ASSISTANT SECRETARY, AS THE ISSUER OF THE REGULATION IS RESPONSIBLE FOR
ITS INTERPRETATION AND IMPLEMENTATION. HOWEVER, THE ASSISTANT SECRETARY
MUST APPLY HIS REGULATIONS IN SUCH A MANNER AS TO REASONABLY ASSURE THAT
THE RIGHTS OF AFFECTED AGENCIES, LABOR ORGANIZATIONS AND EMPLOYEES UNDER
THE ORDER ARE PROTECTED. THIS RESPONSIBILITY IS PARTICULARLY CRITICAL
WHERE, AS HERE, THE RIGHT OF EMPLOYEES TO SELECT THEIR EXCLUSIVE
REPRESENTATIVE MAY BE ABRIDGED.
IN THE INSTANT CASE, THE NFFE LOCAL WAS THE INCUMBENT EXCLUSIVE
REPRESENTATIVE AND ITS IDENTITY AND STATUS WERE KNOWN TO THE AFGE AND
THE ACTIVITY. THE AREA ADMINISTRATOR COMMUNICATED WITH THE NFFE LOCAL
AND PROVIDED IT WITH WHAT APPEARED TO BE A COMPLETE STATEMENT OF THE
REQUIREMENTS OF THE INTERVENTION PROCEDURE. HIS LETTER SET FORTH IN
SOME DETAIL THE PROCESS OF COMPLYING WITH SECTION 202.5 OF THE ASSISTANT
SECRETARY'S RULES, BUT MADE NO MENTION OF THE REQUIREMENT FOR
SIMULTANEOUS SERVICE OF THE INTERVENTION REQUEST ON ALL INTERESTED
PARTIES. NFFE'S LOCAL PRESIDENT THEREAFTER COMPLIED WITH ALL OF THE
STATED REQUIREMENTS AND WAS SUBSEQUENTLY INFORMED THAT NFFE WAS IN
COMPLIANCE WITH THE RULES AND HAD BEEN PERMITTED TO INTERVENE. THIS
NOTICE WAS ISSUED WHEN THERE WAS TIME AVAILABLE FOR NFFE TO CORRECT THE
DEFICIENCY IN ITS INTERVENTION, THAT IS, TO PERFORM THE MINISTERIAL ACT
OF SERVING THE OTHER PARTIES WITH ITS REQUEST TO INTERVENE WITHIN THE
PRESCRIBED TIME PERIOD FOR INTERVENTION. MOREOVER, THE OTHER PARTIES
HAD ACTUAL NOTICE OF NFFE'S INTERVENTION REQUEST IN THAT THEY HAD
RECEIVED COPIES OF THE AREA ADMINISTRATOR'S LETTER GRANTING THE REQUEST
SO THE PURPOSE OF THE SERVICE REQUIREMENT HAD BEEN MET.
UNDER THE CIRCUMSTANCES OF THIS CASE, AS DESCRIBED ABOVE, WE CONCLUDE
THAT THE ASSISTANT SECRETARY'S APPLICATION OF HIS REGULATIONS DID NOT
ASSURE THAT NFFE'S RIGHT TO PARTICIPATE IN THE PROCEEDING WAS PROTECTED
AND, MOREOVER, THE DENIAL OF NFFE'S INTERVENTION IN THIS CASE ABRIDGED
THE RIGHT OF THE AFFECTED EMPLOYEES TO SELECT THE EXCLUSIVE
REPRESENTATIVE OF THEIR CHOICE. ACCORDINGLY, WE FIND THAT THE ASSISTANT
SECRETARY'S DENIAL OF NFFE'S INTERVENTION WAS INCONSISTENT WITH THE
PURPOSES OF THE ORDER.
FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2411.17 OF THE
COUNCIL'S RULES OF PROCEDURE, WE SET ASIDE THE ASSISTANT SECRETARY'S
DENIAL OF NFFE'S REQUEST FOR REVIEW OF THE ASSISTANT REGIONAL DIRECTOR'S
DENIAL OF NFFE'S INTERVENTION REQUEST AND REMAND THE MATTER TO THE
ASSISTANT SECRETARY FOR APPROPRIATE ACTION CONSISTENT WITH THIS DECISION
OF THE COUNCIL.
BY THE COUNCIL.
ISSUED: OCTOBER 30, 1974.
/1/ SECTION 202.5(C) PROVIDES:
(C) NO LABOR ORGANIZATION MAY PARTICIPATE TO ANY EXTENT IN ANY
REPRESENTATION PROCEEDING
UNLESS IT HAS NOTIFIED THE AREA ADMINISTRATOR IN WRITING, ACCOMPANIED
BY ITS SHOWING OF
INTEREST AS SPECIFIED IN PARAGRAPH (A) OF THIS SECTION, OF ITS DESIRE
TO INTERVENE WITHIN TEN
(10) DAYS AFTER THE INITIAL DATE OF POSTING OF THE NOTICE OF PETITION
AS PROVIDED IN
SEC. 202.4(A), UNLESS GOOD CAUSE IS SHOWN FOR EXTENDING THE PERIOD.
SIMULTANEOUSLY WITH THE
FILING OF A REQUEST FOR INTERVENTION, COPIES OF SUCH REQUEST,
EXCLUDING THE SHOWING OF
INTEREST, SHALL BE SERVED ON ALL KNOWN INTERESTED PARTIES, AND A
WRITTEN STATEMENT OF SUCH
SERVICE SHALL BE FILED WITH THE AREA ADMINISTRATOR.
2 FLRC 238; FLRC NO. 73A-64; OCTOBER 25, 1974.
DEPARTMENT OF DEFENSE
AIR FORCE DEFENSE LANGUAGE INSTITUTE
ENGLISH LANGUAGE BRANCH
LACKLAND AIR FORCE BASE, TEXAS
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL UNION 1367
(SYNOPSIS) FLRC NO. 73A-64
DEPARTMENT OF DEFENSE, AIR FORCE DEFENSE LANGUAGE INSTITUTE, ENGLISH
LANGUAGE BRANCH, LACKLAND AIR FORCE BASE, TEXAS, A/SLMR NO. 322. UPON A
COMPLAINT FILED BY THE UNION (AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL UNION 1367), THE ASSISTANT SECRETARY FOUND
THAT, PURSUANT TO THE COUNCIL'S DECISION IN UNITED FEDERATION OF COLLEGE
TEACHERS, LOCAL 1460 AND U.S. MERCHANT MARINE ACADEMY, FLRC NO. 71A-15
(REPORT NO. 30), THE ACTIVITY HAD NOT VIOLATED SECTION 19(A)(6) OF THE
ORDER BY FAILING TO MEET AND CONFER WITH THE UNION IN REGARD TO THE
ADOPTION OF A DEFENSE LANGUAGE INSTITUTE REGULATION DEALING WITH THE
ASSIGNMENT OF ACTIVITY EMPLOYEES TO OVERSEAS DUTY. IN THIS REGARD, THE
ASSISTANT SECRETARY FOUND THAT THE SUBJECT REGULATION, WHICH IN PART
REQUIRED ACTIVITY MANAGEMENT TO CONSIDER EMPLOYEES FROM OUTSIDE THE
ACTIVITY FOR JOB ASSIGNMENTS, WAS ISSUED TO ACHIEVE A DESIRABLE DEGREE
OF UNIFORMITY AND EQUALITY ON A MATTER COMMON TO MORE THAN ONE
SUBORDINATE ACTIVITY OF THE PARENT ORGANIZATION AND, IN ACCORDANCE WITH
MERCHANT MARINE, WAS EXCEPTED FROM THE BARGAINING OBLIGATION UNDER
SECTION 11(A) OF THE ORDER. THE COUNCIL ACCEPTED THE CASE FOR REVIEW,
HAVING DETERMINED THAT A MAJOR POLICY ISSUE WAS PRESENT, NAMELY:
WHETHER THE ASSISTANT SECRETARY CORRECTLY APPLIED THE COUNCIL'S MERCHANT
MARINE DECISION IN CONCLUDING THAT THE ACTIVITY WAS NOT OBLIGATED, UNDER
SECTION 11(A), TO MEET AND CONFER WITH THE UNION IN REGARD TO THE
SUBJECT REGULATION (REPORT NO. 51).
COUNCIL ACTION (OCTOBER 25, 1974). THE COUNCIL FOUND, CONTRARY TO
THE ASSISTANT SECRETARY, THAT THE SUBJECT REGULATION WAS APPLICABLE ONLY
TO THE SINGLE ACTIVITY HERE INVOLVED AND THEREFORE THE ASSISTANT
SECRETARY INCORRECTLY APPLIED THE MERCHANT MARINE DECISION IN HOLDING
THAT THE ACTIVITY WAS NOT OBLIGATED, UNDER SECTION 11(A), TO NEGOTIATE
WITH THE UNION IN REGARD TO THAT REGULATION. THE COUNCIL RULED, IN THIS
CONNECTION, THAT UNDER MERCHANT MARINE, A POLICY OR REGULATION REFERRED
TO IN SECTION 11(A) AS AN APPROPRIATE LIMITATION ON THE SCOPE OF
NEGOTIATIONS MUST BE DIRECTED TO THE MANAGEMENT OF MORE THAN ONE
SUBORDINATE ACTIVITY AND DEAL WITH THE ADMINISTRATION OF MATTERS WHICH
ARE COMMON TO THOSE ACTIVITIES. THE COUNCIL FURTHER RULED THAT SUCH
CONDITION IS NOT ESTABLISHED MERELY BECAUSE, AS HERE, THE REGULATION
REQUIRES ACTIVITY MANAGEMENT TO CONSIDER EMPLOYEES FROM OUTSIDE THE
ACTIVITY FOR JOB ASSIGNMENTS. ACCORDINGLY, THE COUNCIL REMANDED THE
CASE TO THE ASSISTANT SECRETARY FOR FURTHER PROCEEDINGS, CONSISTENT WITH
THE COUNCIL'S DECISION.
THIS APPEAL AROSE FROM A DECISION AND ORDER OF THE ASSISTANT
SECRETARY WHO DISMISSED A COMPLAINT FILED BY AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES LOCAL 1367 (HEREIN REFERRED TO AS "THE UNION")
AGAINST THE AIR FORCE DEFENSE LANGUAGE INSTITUTE, ENGLISH LANGUAGE
BRANCH (HEREIN REFERRED TO AS "THE ACTIVITY") WHICH COMPLAINT HAD
ALLEGED THAT THE ACTIVITY HAD VIOLATED SECTION 19(A)(6) OF THE ORDER /1/
BY UNILATERALLY IMPLEMENTING DEFENSE LANGUAGE INSTITUTE REGULATION 690-2
ON APRIL 14, 1972 AND FAILING TO CONFER, CONSULT, OR NEGOTIATE WITH THE
COMPLAINANT IN RESPECT THERETO.
THE FACTUAL BACKGROUND OF THIS CASE, AS FOUND BY THE ADMINISTRATIVE
LAW JUDGE AND ADOPTED BY THE ASSISTANT SECRETARY, IS AS FOLLOWS: THE
ACTIVITY LOCATED AT LACKLAND AIR FORCE BASE, SAN ANTONIO, TEXAS, EMPLOYS
INSTRUCTORS TO TEACH ENGLISH TO FOREIGN MILITARY STUDENTS, PREPARATORY
TO THEIR TECHNICAL OR PROFESSIONAL TRAINING. THE ACTIVITY ALSO SENDS
INSTRUCTORS TO FOREIGN COUNTRIES TO ASSIST HOST COUNTRIES TO DEVELOP
PROGRAMS AND TRAIN INSTRUCTORS TO TEACH ENGLISH TO OTHERS. PRIOR TO
APRIL 1972, THE SELECTION OF INSTRUCTORS FOR OVERSEAS ASSIGNMENTS WAS
GOVERNED BY DLIEL MEMORANDUM 690-1, WHICH PROVIDED FOR A ROTATION ROSTER
SYSTEM BASED ON TENURE; I.E., THE INSTRUCTORS WITH THE MOST TENURE
WOULD BE THE LAST TO GO OVERSEAS. IN MARCH OF 1971, A NEW COMMANDANT
WAS ASSIGNED TO THE ACTIVITY. AFTER HAVING REVIEWED DLIEL MEMORANDUM
690-1, HE CONCLUDED THAT THE OPERATION OF THE ROTATION ROSTER SHOULD BE
REVERSED SO THAT THE INSTRUCTORS WITH THE MOST TENURE WOULD BE THE FIRST
TO BE SENT OVERSEAS. IN THIS CONNECTION THE COMMANDANT MET WITH THE
PRESIDENT OF THE UNION TO DISCUSS SUCH A PROPOSED CHANGE, AND IT WAS
AGREED THAT THE ROTATION ROSTER SHOULD BE CHANGED AS PROPOSED BY THE
COMMANDANT. A DRAFT OF A REVISED DLIEL MEMORANDUM 690-1 WAS THEN
PREPARED BY THE COMMANDANT, AND SENT TO DEFENSE LANGUAGE INSTITUTE (DLI)
HEADQUARTERS IN WASHINGTON, D.C. FOR REVIEW AND INSPECTION. AT
HEADQUARTERS, HOWEVER, IT WAS DECIDED THAT ANY ROTATION SYSTEM BASED
SOLELY ON TENURE WOULD BE CONTRARY TO CIVIL SERVICE COMMISSION
REGULATIONS. AS A RESULT, A NEW HEADQUARTERS REGULATION, DLI REGULATION
690-2, WAS PREPARED BY DLI AND SENT TO THE ACTIVITY IN APRIL 1972. THE
NEW REGULATION, WHICH SUPERSEDED DLIEL MEMORANDUM 690-1, PROVIDED FOR AN
OVERSEAS SELECTION SYSTEM BASED ON EXPERIENCE AND QUALIFICATIONS. THE
REGULATION WAS ISSUED BY DLI HEADQUARTERS AND WAS DEEMED APPLICABLE TO
EMPLOYEES AT THE ACTIVITY AS WELL AS OTHER EMPLOYEES AT OTHER ACTIVITIES
UNDER DLI. THE COMMANDANT OF THE ACTIVITY, UPON RECEIPT OF THE NEW
REGULATION, HELD A MEETING WITH UNION OFFICIALS TO INFORM THEM THAT IT
NOW GOVERNED SELECTION FOR OVERSEAS ASSIGNMENTS. THE UNION OFFICIALS
OBJECTED THAT THEY HAD NOT BEEN CONSULTED WITH REGARD TO THE ADOPTION OF
THE REGULATION, TO WHICH THE COMMANDANT REPLIED THAT THERE WAS NO NEED
FOR THE ACTIVITY TO CONSULT WITH THE UNION BECAUSE THE REGULATION HAD
BEEN ISSUED BY DLI HEADQUARTERS. IN SUBSEQUENT MONTHS, THE UNION AND
THE ACTIVITY MET TO DISCUSS DLI REGULATION 690-2, THE UNION ARGUING THAT
THE REGULATION SHOULD BE RESCINDED WHILE THE ACTIVITY CONTENDED THAT
SUCH ACTION COULD NOT BE TAKEN. THESE DISCUSSIONS CULMINATED IN THE
FILING OF THE SUBJECT UNFAIR LABOR PRACTICE COMPLAINT BY THE UNION.
THE ASSISTANT SECRETARY, IN HIS DECISION, HELD THAT THE ACTIVITY WAS
NOT OBLIGATED TO MEET AND CONFER WITH THE UNION OVER THE ADOPTION OF DLI
REGULATION 690-2. IN REACHING THIS CONCLUSION, THE ASSISTANT SECRETARY
CITED THE COUNCIL'S DECISION IN UNITED FEDERATION OF COLLEGE TEACHERS
LOCAL 1460 AND U.S. MERCHANT MARINE ACADEMY, FLRC NO. 71A-15 (NOVEMBER
20, 1972), REPORT NO. 30. IN PARTICULAR, HE MADE REFERENCE TO THOSE
PORTIONS OF THE DECISION WHEREIN THE COUNCIL STATED THAT:
. . . HIGHER LEVEL PUBLISHED POLICIES AND REGULATIONS THAT ARE
APPLICABLE UNIFORMLY TO MORE
THAN ONE ACTIVITY MAY PROPERLY LIMIT THE SCOPE OF NEGOTIATIONS . . .
(AND) . . . THE POLICIES
AND REGULATIONS REFERRED TO IN SECTION 11(A) AS AN APPROPRIATE
LIMITATION ON THE SCOPE OF
NEGOTIATIONS ARE ONES ISSUED TO ACHIEVE A DESIRABLE DEGREE OF
UNIFORMITY AND EQUALITY IN THE
ADMINISTRATION OF MATTERS COMMON TO ALL EMPLOYEES OF THE AGENCY, OR,
AT LEAST, TO EMPLOYEES OF
MORE THAN ONE SUBORDINATE ACTIVITY. /2/
BASED ON THE MERCHANT MARINE DECISION, THE ASSISTANT SECRETARY FOUND
THAT DLI REGULATION 690-2 WAS NOT INCONSISTENT WITH SECTION 11(A) OF THE
ORDER, /3/ BECAUSE IT WAS ISSUED TO ACHIEVE "A DESIRABLE DEGREE OF
UNIFORMITY AND EQUALITY" ON A MATTER COMMON TO EMPLOYEES OF MORE THAN
ONE SUBORDINATE ACTIVITY OF THE DEFENSE LANGUAGE INSTITUTE. /4/
ACCORDINGLY, THE ASSISTANT SECRETARY CONCLUDED THAT THE ISSUANCE OF DLI
REGULATION 690-2 REMOVED THE MATTER OF OVERSEAS ASSIGNMENTS FROM THE
SCOPE OF NEGOTIATIONS AT THE LOCAL LEVEL, AND THEREFORE, THAT THE
ACTIVITY HAD NOT VIOLATED SECTION 19(A)(6) OF THE ORDER. THE UNION
APPEALED THE ASSISTANT SECRETARY'S DECISION TO THE COUNCIL. THE COUNCIL
FOUND THAT A MAJOR POLICY ISSUE WAS PRESENTED AND ACCEPTED THE UNION'S
PETITION FOR REVIEW. THE UNION AND THE AGENCY (THE DEPARTMENT OF THE
ARMY) FILED BRIEFS WITH THE COUNCIL.
THE MAJOR POLICY ISSUE PRESENTED IS AS FOLLOWS: WHETHER THE
ASSISTANT SECRETARY CORRECTLY APPLIED THE COUNCIL'S DECISION IN MERCHANT
MARINE, SUPRA, IN HOLDING THAT THE ACTIVITY WAS NOT OBLIGATED, UNDER
SECTION 11(A) OF THE ORDER, TO MEET AND CONFER WITH THE UNION OVER THE
ADOPTION OF DLI REGULATION 690-2. AS ALREADY INDICATED, THE ASSISTANT
SECRETARY HELD, IN ESSENCE, THAT BECAUSE DLI REGULATION 690-2 PROVIDES
THAT QUALIFIED EMPLOYEES OUTSIDE THE ACTIVITY /5/ MAY BE INCLUDED ON
REFERRAL LISTS USED IN MAKING OVERSEAS ASSIGNMENTS, IT IS A REGULATION
WHICH, PURSUANT TO THE COUNCIL'S MERCHANT MARINE DECISION, MAY
APPROPRIATELY LIMIT THE SCOPE OF NEGOTIATIONS BETWEEN THE UNION AND THE
ACTIVITY. THE COUNCIL DISAGREES WITH THE ASSISTANT SECRETARY'S HOLDING
FOR THE REASONS SPECIFIED BELOW.
IN THE MERCHANT MARINE CASE, WE WERE CONFRONTED WITH A SITUATION
WHEREIN THE UNION SUBMITTED FOR NEGOTIATION TWO PROPOSALS RELATING TO
FACULTY COMPENSATION AT THE MERCHANT MARINE ACADEMY, AND THE AGENCY HELD
THEM TO BE NONNEGOTIABLE, IN PART BECAUSE THEY WERE CONTRARY TO AGENCY
REGULATIONS, AS INTERPRETED BY THE AGENCY HEAD. ONE OF THESE
REGULATIONS WAS ISSUED BY AGENCY AUTHORITY ABOVE THE MERCHANT MARINE
ACADEMY, AND ESTABLISHED THE SALARY PLAN AND SCHEDULE FOR CERTAIN
PROFESSIONAL EMPLOYEES OF THE MERCHANT MARINE ACADEMY, A SINGLE ACTIVITY
OF THE AGENCY. IN THESE CIRCUMSTANCES THE COUNCIL CONCLUDED THAT TO
PERMIT AN AGENCY UNILATERALLY TO LIMIT THE SCOPE OF BARGAINING ON
OTHERWISE NEGOTIABLE MATTERS PECULIAR TO AN INDIVIDUAL UNIT, IN A SINGLE
FIELD ACTIVITY, MERELY BY ISSUING A REGULATION AT A HIGHER LEVEL, WOULD
BE AN IMPROPER DILUTION OF THE SECTION 11(A) BARGAINING OBLIGATION.
WITH REGARD TO THE 11(A) BARGAINING OBLIGATION WE STATED, AS QUOTED IN
PART BY THE ASSISTANT SECRETARY IN HIS DECISION, THAT:
. . . THE POLICIES AND REGULATIONS REFERRED TO IN SECTION 11(A) AS AN
APPROPRIATE
LIMITATION ON THE SCOPE OF NEGOTIATIONS ARE ONES ISSUED TO ACHIEVE A
DESIRABLE DEGREE OF
UNIFORMITY AND EQUALITY IN THE ADMINISTRATION OF MATTERS COMMON TO
ALL EMPLOYEES OF THE
AGENCY, OR, AT LEAST, TO EMPLOYEES OF MORE THAN ONE SUBORDINATE
ACTIVITY. ANY OTHER
INTERPRETATION OF THE PHRASE "PUBLISHED AGENCY POLICIES AND
REGULATIONS," IN THE CONTEXT OF
THE ORDER, WHICH WOULD PERMIT AD HOC LIMITATIONS ON THE SCOPE OF
NEGOTIATIONS IN A PARTICULAR
BARGAINING UNIT, WOULD MAKE A MOCKERY OF THE BARGAINING OBLIGATION.
ALSO IN CONNECTION WITH THE PUBLISHED AGENCY POLICIES AND REGULATIONS
REFERENCED IN SECTION 11(A), WE STATED THAT:
. . . HIGHER LEVEL PUBLISHED POLICIES AND REGULATIONS THAT ARE
APPLICABLE UNIFORMLY TO MORE
THAN ONE ACTIVITY MAY PROPERLY LIMIT THE SCOPE OF NEGOTIATIONS . . .
IN CONCLUSION, WE HELD IN MERCHANT MARINE, AMONG OTHER THINGS, THAT
THE SUBJECT AGENCY REGULATION COULD NOT PROPERLY RENDER THE UNION'S
PROPOSAL NONNEGOTIABLE, AND THE AGENCY HEAD'S DETERMINATION OF
NONNEGOTIABILITY WAS SET ASIDE.
TO DETERMINE WHETHER THE ASSISTANT SECRETARY CORRECTLY APPLIED THE
MERCHANT MARINE DECISION TO THE REGULATION IN THE INSTANT CASE, WE MUST
RESOLVE THE ISSUE OF WHETHER OR NOT DLI REGULATION 690-2 IS "APPLICABLE
UNIFORMLY" TO MORE THAN ONE ACTIVITY. CONTRARY TO THE ASSISTANT
SECRETARY, WE FIND THAT THE REGULATION IS NOT SO APPLICABLE, BUT IS
RATHER "APPLICABLE UNIFORMLY" ONLY TO THE EMPLOYEES OF ONE ACTIVITY.
AN ANALYSIS OF THE TERMS OF DLI REGULATION 690-2 SUPPORTS THIS
FINDING. SECTIONS 1 AND 2 OF THE REGULATION PROVIDE AS FOLLOWS:
1. PURPOSE. THE PURPOSE OF THIS REGULATION IS TO ESTABLISH THE
POLICIES AND PROCEDURES BY
WHICH DEFENSE LANGUAGE INSTITUTE, ENGLISH LANGUAGE BRANCH (DLIEL)
PERSONNEL WILL BE SELECTED
FOR OVERSEAS ASSIGNMENTS.
2. SCOPE. THIS REGULATION APPLIES TO ALL DLIEL EMPLOYEES WHO HAVE
CAREER OR CAREER
CONDITIONAL STATUS AND WHO ARE SERVING IN POSITIONS CLASSIFIED IN THE
1700 EDUCATION AND
TRAINING OCCUPATIONAL GROUP . . .
IT IS CLEAR FROM THE FACE OF THESE PROVISIONS THAT THE DRAFTERS OF
THE REGULATION INTENDED ITS PURPOSE AND SCOPE TO BE LIMITED TO EMPLOYEES
OF THE ENGLISH LANGUAGE BRANCH OF DLI ONLY, WHICH CONSISTS ONLY OF THE
ONE ACTIVITY LOCATED AT LACKLAND AIR FORCE BASE, TEXAS.
AS ALREADY INDICATED, THE ASSISTANT SECRETARY, IN HIS DECISION, MADE
REFERENCE TO THE TESTIMONY OF THE CIVILIAN PERSONNEL ADVISOR FOR THE DLI
THAT DLI REGULATION 690-2 APPLIES TO EMPLOYEES OUTSIDE THE ENGLISH
LANGUAGE BRANCH, BECAUSE THESE EMPLOYEES, IF QUALIFIED, WILL BE INCLUDED
ON REFERRAL LISTS TO BE USED IN MAKING OVERSEAS ASSIGNMENTS. THIS
CONSTITUTED SUFFICIENT EVIDENCE FOR THE ASSISTANT SECRETARY TO FIND THAT
THE REGULATION IS APPLICABLE TO EMPLOYEES OF OTHER BRANCHES OF DLI. THE
AGENCY, IN ITS BRIEF, ARGUES ALONG THE SAME LINE, MAKING REFERENCE TO
PARAGRAPH 3.I OF THE REGULATION, WHICH PROVIDES AS FOLLOWS:
I. ALL PLACEMENT ACTIONS AND SUBSEQUENT ADMINISTRATION OF DLIEL LTD
POSITIONS WILL BE
ACCOMPLISHED IN ACCORDANCE WITH GOVERNING CIVILIAN PERSONNEL
REGULATIONS. SIMULTANEOUS
CONSIDERATION MUST BE GIVEN TO BOTH VOLUNTARY ARMY APPLICANTS OUTSIDE
THE MINIMUM AREA OF
CONSIDERATION AND APPLICANTS OUTSIDE OF DA (DEPARTMENT OF THE ARMY)
AS REQUIRED BY FPM CHAPTER
335 AND CPR 300 (CH. 12), CHAPTER 335.
HENCE, BECAUSE CONSIDERATION MUST BE GIVEN TO VOLUNTARY APPLICANTS
OUTSIDE THE MINIMUM AREA OF CONSIDERATION, THE AGENCY CONCLUDES THAT DLI
REGULATION 690-2 IS APPLICABLE TO MORE THAN ONE ACTIVITY, AND MAY
THEREFORE PROPERLY LIMIT THE SCOPE OF NEGOTIATIONS ON OVERSEAS
ASSIGNMENTS.
WE DO NOT BELIEVE THAT BECAUSE A REGULATION REQUIRES ACTIVITY
MANAGEMENT TO CONSIDER EMPLOYEES FROM OUTSIDE THE ACTIVITY FOR JOB
ASSIGNMENTS, THAT THE REGULATION IS THEREFORE "APPLICABLE UNIFORMLY TO
MORE THAN ONE ACTIVITY," WITHIN THE MEANING OF MERCHANT MARINE.
THE KIND OF REGULATION WHICH WE FOUND TO BE AN APPROPRIATE LIMIT ON
THE SCOPE OF NEGOTIATIONS IN MERCHANT MARINE WAS ONE "ISSUED TO ACHIEVE
A DESIRABLE DEGREE OF UNIFORMITY AND EQUALITY IN THE ADMINISTRATION OF
MATTERS COMMON TO . . . EMPLOYEES OF MORE THAN ONE SUBORDINATE
ACTIVITY." IMPLICIT IN THIS LANGUAGE IS THE PRINCIPLE THAT THE
REGULATION MUST DEAL WITH MATTERS THAT ARE ADMINISTERED AT MORE THAN ONE
SUBORDINATE ACTIVITY. THUS, THE FACT THAT THE REGULATION MAY AFFECT
EMPLOYEES AT MORE THAN ONE SUBORDINATE ACTIVITY IS NOT SUFFICIENT. A
POLICY OR REGULATION REFERRED TO IN SECTION 11(A) OF THE ORDER AS AN
APPROPRIATE LIMITATION ON THE SCOPE OF NEGOTIATIONS MUST DIRECT ITSELF
TO THE MANAGEMENT OF MORE THAN A SINGLE SUBORDINATE ACTIVITY. IT MUST
BE DIRECTED TO THE MANAGEMENT OF MORE THAN ONE SUBORDINATE ACTIVITY AND
DEAL WITH THE ADMINISTRATION OF MATTERS WHICH ARE COMMON TO THOSE
ACTIVITIES. THE REGULATION IN THIS CASE, HOWEVER, APPEARS TO US TO BE
CLEARLY DIRECTED TO THE MANAGEMENT OF A SINGLE ACTIVITY, AND ONLY
AFFECTS EMPLOYEES OUTSIDE THE ACTIVITY IN AN INDIRECT AND LIMITED WAY.
MORE SPECIFICALLY, IT APPEARS TO ESTABLISH A PROCEDURAL FRAMEWORK FOR
THE VOLUNTARY CONSIDERATION OF EMPLOYEES OUTSIDE THE ENGLISH LANGUAGE
BRANCH FOR SELECTION BY THAT BRANCH FOR OVERSEAS ASSIGNMENTS.
CONSEQUENTLY, IT IS NOT A REGULATION WHICH IS "APPLICABLE UNIFORMLY TO
MORE THAN ONE ACTIVITY," IN THAT IT IS NOT DIRECTED TO A MANAGER OR
MANAGERS OF MORE THAN ONE SUBORDINATE ACTIVITY, PROVIDING GUIDANCE
CONCERNING MATTERS COMMON TO EMPLOYEES OF THESE ACTIVITIES. /6/ WE
THEREFORE FIND, CONTRARY TO THE ASSISTANT SECRETARY AND THE CONTENTIONS
OF THE AGENCY, THAT DLI REGULATION 690-2 MAY NOT SERVE AS AN APPROPRIATE
LIMITATION ON THE SCOPE OF THE NEGOTIATIONS AT DLIEL ON OVERSEAS
ASSIGNMENTS UNDER SECTION 11(A), PURSUANT TO OUR HOLDING IN MERCHANT
MARINE.
ACCORDINGLY, PURSUANT TO SECTION 2411.17(B) OF THE COUNCIL'S RULES OF
PROCEDURE (5 CFR 2411.17(B)), WE REMAND THIS CASE TO THE ASSISTANT
SECRETARY FOR FURTHER PROCEEDINGS AS TO THE RESOLUTION OF THE SUBJECT
UNFAIR LABOR PRACTICE COMPLAINT, IN A MANNER CONSISTENT WITH OUR HOLDING
HEREIN.
BY THE COUNCIL.
ISSUED: OCTOBER 25, 1974.
/1/ SECTION 19(A)(6) OF THE ORDER PROVIDES AS FOLLOWS:
(A) AGENCY MANAGEMENT SHALL NOT--
(6) REFUSE TO CONSULT, CONFER, OR NEGOTIATE WITH A LABOR ORGANIZATION
AS REQUIRED BY THIS
ORDER.
/2/ UNITED FEDERATION OF COLLEGE TEACHERS LOCAL 1460 AND U.S.
MERCHANT MARINE ACADEMY, FLRC NO. 71A-15 (NOVEMBER 20, 1972), REPORT NO.
30, AT 6.
/3/ SECTION 11(A) OF THE ORDER PROVIDES, IN PERTINENT PART, AS
FOLLOWS:
SEC. 11. NEGOTIATION OF AGREEMENTS. (A) AN AGENCY AND A LABOR
ORGANIZATION THAT HAS BEEN
ACCORDED EXCLUSIVE RECOGNITION, THROUGH APPROPRIATE REPRESENTATIVES,
SHALL MEET AT REASONABLE
TIMES AND CONFER IN GOOD FAITH WITH RESPECT TO PERSONNEL POLICIES AND
PRACTICES AND MATTERS
AFFECTING WORKING CONDITIONS, SO FAR AS MAY BE APPROPRIATE UNDER
APPLICABLE LAWS AND
REGULATIONS, INCLUDING POLICIES SET FORTH IN THE FEDERAL PERSONNEL
MANUAL, PUBLISHED AGENCY
POLICIES AND REGULATIONS, A NATIONAL OR OTHER CONTROLLING AGREEMENT
AT A HIGHER LEVEL IN THE
AGENCY, AND THIS ORDER . . .
/4/ IN THIS REGARD, THE ASSISTANT SECRETARY RELIED ON THE TESTIMONY
OF THE CIVILIAN PERSONNEL ADVISOR FOR DLI AT THE UNFAIR LABOR PRACTICE
HEARING, WHO TESTIFIED THAT DLI REGULATION 690-2 APPLIES TO EMPLOYEES
OUTSIDE THE ENGLISH LANGUAGE BRANCH OF DLI AND TO EMPLOYEES OUTSIDE DLI
ITSELF. SPECIFICALLY, THE CIVILIAN PERSONNEL ADVISOR STATED THAT " . .
. ANY PERSON WITHIN THESE OTHER BRANCHES THAT ARE QUALIFIED AND COME UP
ON THE BEST QUALIFIED LIST WILL ALSO BE INCLUDED ON THE REFERRAL."
/5/ IT APPEARS TO BE UNCONTROVERTED FROM THE RECORD OF THIS CASE THAT
THE ENGLISH LANGUAGE BRANCH OF DLI CONSISTS OF ONLY ONE ACTIVITY,
LOCATED AT LACKLAND AIR FORCE BASE, TEXAS.
/6/ IN ITS OPPOSITION TO THE UNION'S PETITION FOR REVIEW IN THIS
CASE, THE AGENCY STATED THAT CAREER REFERRAL LISTS COMPILED SINCE DLI
REGULATION 690-2 TOOK EFFECT HAVE INCLUDED EMPLOYEES FROM OUTSIDE THE
ENGLISH LANGUAGE BRANCH, AND THAT AT LEAST ONE EMPLOYEE FROM OUTSIDE THE
ENGLISH LANGUAGE BRANCH HAS BEEN SELECTED FOR AN OVERSEAS ASSIGNMENT.
HOWEVER, BASED ON OUR HOLDING IN THIS CASE, WE FIND THESE FACTS TO BE
WITHOUT WEIGHT.
2 FLRC 232; FLRC NO. 73A-43; OCTOBER 25, 1974.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1650
BEEVILLE, TEXAS
(NAVAL AIR STATION, CHASE FIELD,
BEEVILLE, TEXAS)
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, WASHINGTON, D.C.
AND
CHARLES R. BRIDGES AND
ARNOLD MEDINA
(SYNOPSIS) FLRC NO. 73A-43
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1650, BEEVILLE,
TEXAS (NAVAL AIR STATION, CHASE FIELD, BEEVILLE, TEXAS), AND AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, WASHINGTON, D.C., A/SLMR NO. 294.
UPON COMPLAINT FILED BY TWO EMPLOYEES (CHARLES R. BRIDGES AND ARNOLD
MEDINA), THE ASSISTANT SECRETARY DETERMINED THAT AFGE AND AFGE LOCAL
1650 VIOLATED SECTION 19(C) OF THE ORDER BY REFUSING TO REINSTATE THESE
EMPLOYEES TO MEMBERSHIP BASED UPON THEIR FAILURE, PURSUANT TO A
PROVISION OF LOCAL 1650'S CONSTITUTION, TO OBTAIN A TWO-THIRDS MAJORITY
OF VOTING MEMBERS. THE ASSISTANT SECRETARY HELD IN THIS REGARD THAT
SECTION 19(C) PROVIDES, IN EFFECT, THAT AN EMPLOYEE IN AN APPROPRIATE
UNIT SHALL NOT BE DENIED MEMBERSHIP IN A LABOR ORGANIZATION WHICH IS
ACCORDED EXCLUSIVE RECOGNITION EXCEPT FOR FAILURE TO MEET REASONABLE
OCCUPATIONAL STANDARDS UNIFORMLY REQUIRED FOR ADMISSION OR FOR FAILURE
TO TENDER INITIATION FEES AND DUES UNIFORMLY REQUIRED AS A CONDITION OF
ACQUIRING AND RETAINING MEMBERSHIP; AND THAT, SINCE THE DENIAL OF
REINSTATEMENT OF THE TWO EMPLOYEES INVOLVED WAS NOT BASED ON EITHER OF
THE FOREGOING EXCEPTIONS, SUCH ACTION WAS VIOLATIVE OF 19(C). THE
COUNCIL ACCEPTED THE CASE FOR REVIEW, HAVING DETERMINED THAT A MAJOR
POLICY ISSUE WAS PRESENT (REPORT NO. 45).
COUNCIL ACTION (OCTOBER 25, 1974). THE COUNCIL AGREED WITH THE
ASSISTANT SECRETARY AS TO THE MEANING AND APPLICATION OF SECTION 19(C).
IN THIS CONNECTION, THE COUNCIL RULED THAT A DENIAL OF REINSTATEMENT TO
MEMBERSHIP OF AN EMPLOYEE WHO HAD VOLUNTARILY RESIGNED FROM THE UNION IS
A DENIAL OF "MEMBERSHIP" WITHIN THE TERMS OF SECTION 19(C) AND,
THEREFORE, ANY DENIAL OF REINSTATEMENT MUST BE BASED ON EITHER FAILURE
TO MEET CERTAIN OCCUPATIONAL STANDARDS, OR A FAILURE TO TENDER FEES AND
DUES, IN ORDER TO BE SANCTIONED UNDER THE ORDER. ACCORDINGLY, THE
COUNCIL UPHELD THE ASSISTANT SECRETARY'S DETERMINATION THAT THE DENIAL
OF REINSTATEMENT HERE INVOLVED WHICH FAILED TO SATISFY THESE
REQUIREMENTS VIOLATED SECTION 19(C); FURTHER, THE COUNCIL AGREED WITH
THE ASSISTANT SECRETARY'S FINDING THAT BOTH AFGE AND ITS LOCAL 1650 WERE
RESPONSIBLE FOR SUCH VIOLATION.
THIS APPEAL AROSE FROM A DECISION AND ORDER OF THE ASSISTANT
SECRETARY WHO, UPON COMPLAINT FILED BY TWO EMPLOYEES (CHARLES BRIDGES
AND ARNOLD MEDINA) AGAINST THEIR NATIONAL UNION (AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, HEREINAFTER REFERRED TO AS AFGE NATIONAL), AND
THEIR LOCAL UNION (AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
1650, HEREINAFTER REFERRED TO AS LOCAL 1650) HELD, IN PERTINENT PART,
THAT BY REFUSING TO REINSTATE THEM TO MEMBERSHIP BASED UPON THEIR
FAILURE, PURSUANT TO A PROVISION OF LOCAL 1650'S CONSTITUTION, TO OBTAIN
A TWO-THIRDS MAJORITY OF VOTING MEMBERS, AFGE NATIONAL AND LOCAL 1650
VIOLATED SECTION 19(C) OF THE ORDER. /1/ THE ASSISTANT SECRETARY HELD
THAT SECTION 19(C) PROVIDES, IN EFFECT, THAT AN EMPLOYEE IN AN
APPROPRIATE UNIT SHALL NOT BE DENIED MEMBERSHIP IN A LABOR ORGANIZATION
WHICH IS ACCORDED EXCLUSIVE RECOGNITION EXCEPT FOR FAILURE TO MEET
REASONABLE OCCUPATIONAL STANDARDS UNIFORMLY REQUIRED FOR ADMISSION OR
FOR FAILURE TO TENDER INITIATION FEES AND DUES UNIFORMLY REQUIRED AS A
CONDITION OF ACQUIRING AND RETAINING MEMBERSHIP. IN THIS REGARD, THE
ASSISTANT SECRETARY FOUND THAT THE DENIAL OF REINSTATEMENT TO THE TWO
EMPLOYEES WAS NOT BASED ON EITHER OF THE FOREGOING EXCEPTIONS. FURTHER,
IT WAS CLEAR THAT THE EMPLOYEES WERE NEVER CHARGED BY THE LOCAL WITH
RESPECT TO ANY ALLEGED MISCONDUCT ENGAGED IN DURING THE PERIOD IN WHICH
THEY WERE MEMBERS OF THE LOCAL.
BASED ON THE FOREGOING, THE ASSISTANT SECRETARY ORDERED THAT CHARLES
BRIDGES /2/ BE UNCONDITIONALLY REINSTATED TO MEMBERSHIP IN THE LOCAL.
/3/ AFGE APPEALED TO THE COUNCIL FROM THIS DECISION AND ORDER, AND THE
COUNCIL ACCEPTED THE PETITION FOR REVIEW, DECIDING THAT THE ASSISTANT
SECRETARY'S DECISION PRESENTED MAJOR POLICY ISSUES.
THE QUESTION PRESENTED IN THIS CASE IS WHETHER THE SECTION 19(C)
PROSCRIPTION ON AN EXCLUSIVE REPRESENTATIVE DENYING MEMBERSHIP TO ANY
UNIT EMPLOYEE EXCEPT FOR FAILURE TO MEET OCCUPATIONAL STANDARDS
UNIFORMLY REQUIRED FOR ADMISSION, OR FOR FAILURE TO TENDER INITIATION
FEES AND DUES UNIFORMLY REQUIRED AS A CONDITION OF ACQUIRING AND
RETAINING MEMBERSHIP EXTENDS TO SITUATIONS WHERE AN EMPLOYEE SEEKS
REINSTATEMENT AS A MEMBER OF A UNION FROM WHICH HE HAS PREVIOUSLY
RESIGNED.
AS INDICATED ABOVE, THE ASSISTANT SECRETARY FOUND THAT A DENIAL OF
REINSTATEMENT TO MEMBERSHIP IS A DENIAL OF MEMBERSHIP WITHIN THE TERMS
OF SECTION 19(C) AND THEREFORE, ANY DENIAL OF REINSTATEMENT MUST BE
BASED ON EITHER FAILURE TO MEET CERTAIN OCCUPATIONAL STANDARDS, OR A
FAILURE TO TENDER FEES AND DUES, IN ORDER TO BE A PERMISSIBLE DENIAL.
IN THE OPINION OF THE COUNCIL, THIS ANALYSIS AS TO THE MEANING AND
COVERAGE OF SECTION 19(C) IS CORRECT, AND IS HEREBY SUSTAINED.
SECTION 19(C) MANDATES THAT "A LABOR ORGANIZATION WHICH IS ACCORDED
EXCLUSIVE RECOGNITION SHALL NOT DENY MEMBERSHIP TO ANY EMPLOYEE IN THE
APPROPRIATE UNIT . . . , " EXCEPT FOR THE REASONS SPECIFIED.
NOTHING IN THE LANGUAGE OF THE ORDER, OR IN THE STUDY COMMITTEE
REPORT, INDICATES THAT THE TERM "MEMBERSHIP", AS USED IN SECTION 19(C),
IS INTENDED TO DISTINGUISH BETWEEN THE TYPE OF MEMBERSHIP ENJOYED BY AN
EMPLOYEE WHEN HE JOINS A LABOR ORGANIZATION FOR THE FIRST TIME, AS
OPPOSED TO THE TYPE OF MEMBERSHIP ENTERED INTO UPON REINSTATEMENT TO A
LABOR ORGANIZATION. INDEED, THE USE OF THE GENERALIZED TERM,
"MEMBERSHIP", INDICATES TO US THAT THE INTENT OF THE ORDER WAS TO
INCLUDE BOTH SITUATIONS WITHIN THE SECTION 19(C) MANDATE TO LABOR
ORGANIZATIONS. HAD IT BEEN INTENDED TO MAKE THE DISTINCTION BETWEEN
INITIAL MEMBERSHIP AND REINSTATEMENT TO MEMBERSHIP, SUCH AS IS URGED BY
AFGE, IT SEEMS CLEAR TO US THAT SECTION 19(C) WOULD CONTAIN LANGUAGE
WHICH WOULD MAKE THAT DISTINCTION MORE READILY APPARENT.
MOREOVER, THIS INTERPRETATION IS CLEARLY CONSISTENT WITH THE OBVIOUS
INTENT OF SECTION 19(C), WHICH IS TO PROHIBIT LABOR ORGANIZATIONS WHICH
HAVE BEEN ACCORDED EXCLUSIVE RECOGNITION FROM DENYING MEMBERSHIP TO
EMPLOYEES EXCEPT FOR VERY LIMITED SPECIFIED REASONS. SUCH AN INTENT
WOULD NOT BE FOSTERED IF WE WERE TO CONCLUDE THAT THE PROHIBITION
AGAINST DENYING MEMBERSHIP DOES NOT PROTECT AN EMPLOYEE WHO HAS
VOLUNTARILY RESIGNED FROM A LABOR ORGANIZATION, BUT THEN WISHES TO BE
REINSTATED TO MEMBERSHIP.
AFGE'S ARGUMENTS THAT THE LANGUAGE OF SECTION 19(C) DOES MAKE SUCH A
DISTINCTION ARE NOT PERSUASIVE. THE UNION CONTENDS FIRST THAT THE
REFERENCE IN 19(C) TO " . . . FAILURE TO TENDER INITIATION FEES AND DUES
UNIFORMLY REQUIRED AS A CONDITION OF ACQUIRING AND RETAINING MEMBERSHIP"
INDICATES THAT THE INTENT OF SECTION 19(C) IS THAT IT APPLY ONLY TO
ORIGINAL MEMBERSHIPS, NOT REINSTATEMENTS, BECAUSE INITIATION FEES ARE
NOT REQUIRED UPON REINSTATEMENT TO MEMBERSHIP. IT IS FURTHER ALLEGED IN
THIS REGARD THAT THE REFERENCE TO "RETAINING MEMBERSHIP" ALSO INDICATES
THAT 19(C) PERTAINS TO ORIGINAL MEMBERSHIPS ONLY AND NOT REINSTATEMENTS.
HOWEVER, WHILE IT APPEARS TO BE TRUE THAT THE REFERENCE TO "INITIATION
FEES" IN SECTION 19(C) REFERS ONLY, IN THE CASE OF AFGE, TO EMPLOYEES
WHO ARE BECOMING MEMBERS OF THE UNION FOR THE FIRST TIME, THE REFERENCE
TO "DUES" WOULD CLEARLY BE APPLICABLE TO BOTH EMPLOYEES APPLYING FOR
ORIGINAL MEMBERSHIP, AND THOSE APPLYING FOR REINSTATEMENT TO MEMBERSHIP.
MOREOVER, EVEN ASSUMING A CONNECTION BETWEEN INITIATION FEES AND DUES
IN 19(C) WOULD MAKE THEM BOTH APPLICABLE TO ORIGINAL MEMBERSHIP ONLY, IT
SHOULD BE NOTED THAT THIS PORTION OF 19(C) DEALS ONLY WITH THE
EXCEPTIONS TO THE MANDATE THAT A UNION ACCEPT ANY UNIT EMPLOYEE INTO
MEMBERSHIP, NOT WITH THE MANDATE ITSELF. HENCE, THIS UNION CONTENTION
DOES NOT ESTABLISH THAT SECTION 19(C) INTENDS TO DISTINGUISH BETWEEN
ORIGINAL MEMBERSHIP IN A UNION, AND REINSTATEMENT TO MEMBERSHIP THEREIN,
AND IS THEREFORE REJECTED.
SECOND, AFGE ARGUES THAT "NOT ONE WORD IN THE ORDER, OR ITS
BACKGROUND HISTORY, INDICATES OR EVEN IMPLIES THAT UNIONS ARE OBLIGED TO
ACCEPT . . . EVERY APPLICANT FOR REINSTATEMENT." THIS VIEW IS PREDICATED
ON THE ASSUMPTION THAT REINSTATEMENT AND MEMBERSHIP ARE TWO DIFFERENT
CONCEPTS. ONCE THIS ASSUMPTION IS MADE, IT IS A SIMPLE MATTER TO SURVEY
THE ORDER AND ITS HISTORY AND DISCOVER THAT NO SPECIFIC MENTION IS MADE
OF REINSTATEMENT, CONCLUDING THEREFORE THAT REINSTATEMENT WAS NOT
INTENDED TO BE COVERED BY SECTION 19(C). HOWEVER, AS INDICATED ABOVE,
WE ARE OF THE OPINION THAT THE ORDER DID NOT INTEND TO MAKE
REINSTATEMENT TO MEMBERSHIP A SEPARATE CONCEPT FROM INITIAL MEMBERSHIP.
AGAIN, THE TERM "MEMBERSHIP" INCLUDES BOTH CONCEPTS. /4/
AFGE ALSO CONTENDS THAT THE RECORD OF THE CASE BEFORE THE ASSISTANT
SECRETARY DOES NOT PROVIDE A SUFFICIENT BASIS FOR A FINDING THAT AFGE
NATIONAL HAD ACTED IN VIOLATION OF THE ORDER. IN THIS REGARD, IT IS
ARGUED FIRST, THAT THE NATIONAL OFFICE HAD NO WAY OF KNOWING, AT THE
TIME THAT IT APPROVED LOCAL 1650'S CONSTITUTIONAL PROVISIONS DEALING
WITH REINSTATEMENT, THAT THE ASSISTANT SECRETARY WOULD INTERPRET SECTION
19(C) TO APPLY TO REINSTATEMENT TO MEMBERSHIP; AND SECOND, THAT THE
NATIONAL OFFICE WAS IN NO WAY INVOLVED IN IMPLEMENTING THE REINSTATEMENT
POLICY HERE INVOLVED. THESE ARGUMENTS MUST BE REJECTED. THE FACT THAT
AFGE NATIONAL DID NOT, AT THE TIME IT APPROVED LOCAL 1950'S
CONSTITUTIONAL PROVISIONS, HAVE AN AUTHORITATIVE RULING AS TO THE
MEANING OF SECTION 19(C) DOES NOT ALTER THE FACT THAT ONCE SUCH A RULING
IS ISSUED, AFGE NATIONAL MUST COMPLY WITH AN ORDER DIRECTING IT TO ACT
IN ACCORDANCE WITH SUCH A RULING.
AS TO THE EXTENT OF INVOLVEMENT OF AFGE NATIONAL IN THE REJECTION OF
BRIDGE'S APPLICATION FOR MEMBERSHIP, WE ARE OF THE OPINION, AS WAS THE
ASSISTANT SECRETARY, THAT THE NATIONAL'S APPROVAL OF THE LOCAL'S
CONSTITUTIONAL PROVISIONS AND ITS APPROVAL OF THE LOCAL'S ACTION WITH
REGARD TO BRIDGES CONSTITUTE SUFFICIENT INVOLVEMENT TO HOLD THE NATIONAL
RESPONSIBLE, WITH THE LOCAL, FOR THE DENIAL OF MEMBERSHIP INVOLVED IN
THIS CASE. /5/
ACCORDINGLY, BASED ON THE FOREGOING, WE FIND THE ASSISTANT
SECRETARY'S HOLDING THAT AFGE LOCAL 1650 AND AFGE NATIONAL VIOLATED
SECTION 19(C) BY REFUSING TO REINSTATE BRIDGES AND MEDINA TO MEMBERSHIP
IS CONSISTENT WITH THE PURPOSES OF THE ORDER. THEREFORE, PURSUANT TO
SECTION 2411.17 OF THE COUNCIL'S RULES OF PROCEDURE, WE SUSTAIN THE
SUBJECT DECISION AND ORDER OF THE ASSISTANT SECRETARY, AND VACATE OUR
STAY OF THE ORDER ISSUED BY THE ASSISTANT SECRETARY.
BY THE COUNCIL.
ISSUED: OCTOBER 25, 1974
/1/ SECTION 19(C) OF THE ORDER PROVIDES:
(C) A LABOR ORGANIZATION WHICH IS ACCORDED EXCLUSIVE RECOGNITION
SHALL NOT DENY MEMBERSHIP
TO ANY EMPLOYEE IN THE APPROPRIATE UNIT EXCEPT FOR FAILURE TO MEET
REASONABLE OCCUPATIONAL
STANDARDS UNIFORMLY REQUIRED FOR ADMISSION, OR FOR FAILURE TO TENDER
INITIATION FEES AND DUES
UNIFORMLY REQUIRED AS A CONDITION OF ACQUIRING AND RETAINING
MEMBERSHIP. THIS PARAGRAPH DOES
NOT PRECLUDE A LABOR ORGANIZATION FROM ENFORCING DISCIPLINE IN
ACCORDANCE WITH PROCEDURES
UNDER ITS CONSTITUTION OR BY-LAWS WHICH CONFORM TO THE REQUIREMENTS
OF THIS ORDER.
/2/ THE ASSISTANT SECRETARY FOUND THAT BECAUSE THE EVIDENCE
ESTABLISHED THAT ARNOLD MEDINA HAD RETIRED FROM FEDERAL SERVICE, AND
THEREFORE NO LONGER A UNIT EMPLOYEE, IT WAS INAPPROPRIATE TO ISSUE A
REMEDIAL ORDER IN SUCH A SITUATION.
/3/ THE ASSISTANT SECRETARY NOTED THAT AFTER REINSTATEMENT, AS A
MEMBER, BRIDGES WOULD BE SUBJECT TO ANY DISCIPLINE, ENFORCED IN
ACCORDANCE WITH THE PROCEDURES UNDER THE CONSTITUTION AND BY-LAWS OF
EITHER OF THE RESPONDENTS WHICH CONFORM TO THE REQUIREMENTS OF THE
ORDER, WITH RESPECT TO ANY IMPROPER CONDUCT ENGAGED IN DURING THE PERIOD
OF HIS PRIOR MEMBERSHIP.
/4/ ALSO BASED ON THIS SUPPOSED DISTINCTION BETWEEN REINSTATEMENT AND
INITIAL MEMBERSHIP IS THE CONTENTION THAT BECAUSE NEITHER SECTION 19(C),
NOR ANY OTHER PROVISION OF THE ORDER OR ITS HISTORY, CONTAINS A SPECIFIC
REFERENCE TO REINSTATEMENT AS BEING ENCOMPASSED IN THE SECTION 19(C)
REQUIREMENT THAT LABOR ORGANIZATIONS ACCEPT ALL UNIT EMPLOYEES INTO
MEMBERSHIP, THAT THE ASSISTANT SECRETARY HAS EXCEEDED THE AUTHORITY
GRANTED TO HIM UNDER THE ORDER BY EXTENDING THE EXPRESS PROVISIONS OF
THE ORDER TO COVER A SITUATION IT WAS NOT INTENDED TO COVER. BASED ON
THE RATIONALE AS SET FORTH ABOVE, HOWEVER, THIS UNION CONTENTION MUST
ALSO BE REJECTED. THE ASSISTANT SECRETARY HAS NOT EXCEEDED THE SCOPE OF
HIS AUTHORITY, BECAUSE HE HAS PROPERLY INTERPRETED THE TERM "MEMBERSHIP"
AS USED IN SECTION 19(C) TO INCLUDE REINSTATEMENT TO MEMBERSHIP. HE HAS
NOT EXTENDED OR, IN EFFECT, REWRITTEN THE ORDER TO INCLUDE SOMETHING
WHICH WAS NOT THERE IN THE FIRST PLACE.
/5/ AFGE ARGUES THAT THERE IS A "NATIONAL LABOR-RELATIONS POLICY" TO
THE EFFECT THAT UNIONS MAY PROMULGATE RULES TO MAINTAIN "INTERNAL
CONTROL AND DISCIPLINE" OVER LOCALS, AND THAT THIS POLICY IS ADOPTED IN
THE FEDERAL LABOR-MANAGEMENT RELATIONS PROGRAM BY MEANS OF THE PORTION
OF SECTION 19(C) WHICH PROVIDES AS FOLLOWS:
THIS PARAGRAPH DOES NOT PRECLUDE A LABOR ORGANIZATION FROM ENFORCING
DISCIPLINE IN
ACCORDANCE WITH PROCEDURES UNDER ITS CONSTITUTION OR BY-LAWS WHICH
CONFORM TO THE REQUIREMENTS
OF THIS ORDER.
THE UNION CONCLUDES, IN THE LIGHT OF THE FOREGOING, THAT BECAUSE THE
DENIALS OF REINSTATEMENT TO MEMBERSHIP OF THE COMPLAINANTS WERE FOR
DISCIPLINARY REASONS, THAT THEY WERE PERMISSIBLE UNDER THE ORDER.
HOWEVER, IN THIS CASE THE ASSISTANT SECRETARY FOUND THAT THE
COMPLAINANTS HAD NOT BEEN CHARGED WITH ANY ALLEGED MISCONDUCT AND THERE
IS NO EVIDENCE THAT THE DENIAL OF REINSTATEMENT WAS A DISCIPLINE IN
ACCORDANCE WITH PROCEDURES UNDER THE LOCAL'S CONSTITUTION OR BY-LAWS
WHICH CONFORM TO THE REQUIREMENTS OF THE ORDER.
2 FLRC 229; FLRC NO. 74A-23; OCTOBER 22, 1974.
MR. ROBERT M. TOBIAS, COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, NW., SUITE 1101
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 74A-23
INTERNAL REVENUE SERVICE, WASHINGTON, D.C., ASSISTANT SECRETARY CASE
NO. 22-4056 (CA). THE ASSISTANT SECRETARY DISMISSED A COMPLAINT FILED
BY THE NATIONAL TREASURY EMPLOYEES UNION (NTEU), WHICH ALLEGED THAT THE
AGENCY'S DENIAL OF AN EMPLOYEE'S REQUEST FOR UNION REPRESENTATION AT
CERTAIN "INVESTIGATIVE INTERVIEWS" VIOLATED SECTION 19(A)(1) AND (6) OF
THE ORDER. THE ASSISTANT SECRETARY FOUND THAT THE "INVESTIGATIVE
INTERVIEWS" DID NOT CONSTITUTE "FORMAL DISCUSSIONS" WITHIN THE MEANING
OF SECTION 10(E) OF THE ORDER AND, RELYING UPON HIS DECISION IN
DEPARTMENT OF DEFENSE, NATIONAL GUARD BUREAU, TEXAS AIR NATIONAL GUARD,
A/SLMR NO. 336, CONCLUDED THAT THE AGENCY'S DENIAL OF UNION
REPRESENTATION DID NOT VIOLATE SECTION 19(A)(1) OR (6). WITH REGARD TO
NTEU'S ASSERTION THAT A HEARING WAS REQUIRED TO BRING OUT ADDITIONAL
FACTS IN THE CASE, THE ASSISTANT SECRETARY DETERMINED, IN EFFECT, THAT
IT WAS NTEU'S BURDEN AS THE COMPLAINANT TO ADDUCE AT THE INVESTIGATIVE
STAGE THOSE FACTS NECESSARY TO ESTABLISH A REASONABLE BASIS FOR THE
COMPLAINT.
NTEU APPEALED TO THE COUNCIL, ALLEGING THAT THE ASSISTANT SECRETARY'S
DECISION IS ARBITRARY AND CAPRICIOUS ESSENTIALLY BECAUSE, CONTRARY TO
HIS OWN RULES, HE FAILED TO DIRECT A HEARING TO RESOLVE REMAINING
FACTUAL ISSUES; HE MISCONSTRUED SECTION 10(E) OF THE ORDER; AND HE
DEPARTED WITHOUT EXPLANATION FROM HIS PREVIOUS DECISIONS. NTEU FURTHER
ALLEGED THAT MAJOR POLICY ISSUES ARE PRESENTED CONCERNING UNION
REPRESENTATION AT DISCUSSIONS BETWEEN EMPLOYEES AND THE AGENCY.
COUNCIL ACTION (OCTOBER 22, 1974). THE COUNCIL FOUND THAT THE
ASSISTANT SECRETARY'S DECISION DID NOT APPEAR TO BE WITHOUT REASONABLE
JUSTIFICATION, OR IN ANY OTHER MANNER ARBITRARY AND CAPRICIOUS. IN THIS
CONNECTION, THE COUNCIL HELD THAT THE ASSISTANT SECRETARY DID NOT
VIOLATE HIS OWN RULES IN REFUSING TO CONDUCT A HEARING; HIS DECISION IS
BASED ON THE LANGUAGE AND MEANING OF 10(E); AND THE ASSISTANT SECRETARY
DID NOT APPEAR TO DEPART FROM HIS EARLIER DECISIONS. THE COUNCIL ALSO
HELD THAT, IN THE CIRCUMSTANCES PRESENTED, THE ASSISTANT SECRETARY'S
DETERMINATION DID NOT PRESENT A MAJOR POLICY ISSUE WARRANTING COUNCIL
REVIEW IN THIS CASE. ACCORDINGLY, THE COUNCIL DENIED REVIEW OF NTEU'S
APPEAL UNDER SECTION 2411.12 OF THE COUNCIL'S RULES OF PROCEDURE (5 CFR
2411.12).
DEAR MR. TOBIAS:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
THE ASSISTANT SECRETARY DENIED YOUR REQUEST FOR REVIEW SEEKING
REVERSAL OF THE ASSISTANT REGIONAL DIRECTOR'S DISMISSAL OF YOUR UNFAIR
LABOR PRACTICE COMPLAINT, IN WHICH YOU ALLEGED AGENCY VIOLATIONS OF
SUBSECTIONS 19(A)(1) AND (6) OF THE ORDER. THESE ALLEGED VIOLATIONS
WERE BASED UPON THE AGENCY'S REFUSAL TO PERMIT AN EMPLOYEE TO BE
ACCOMPANIED BY A REPRESENTATIVE OF THE UNION AT "INVESTIGATIVE
INTERVIEWS" CONDUCTED BY THE AGENCY (WHICH YOU CHARACTERIZE AS "FORMAL
DISCUSSIONS" WITHIN THE MEANING OF SECTION 10(E) OF THE ORDER).
ON THE BASIS OF THE FACTS PROPERLY BEFORE HIM AND UNDER ALL THE
CIRCUMSTANCES THE ASSISTANT SECRETARY FOUND THAT THE "INVESTIGATIVE
INTERVIEWS" IN THIS CASE WHICH "RELATED TO A SINGLE IRS EMPLOYEE'S
OBLIGATION TO FILE TIMELY A PROPER FEDERAL TAX RETURN" DID NOT
CONSTITUTE A FORMAL DISCUSSION WITHIN THE MEANING OF SECTION 10(E) OF
THE ORDER AND THAT, THEREFORE, THE AGENCY WAS NOT REQUIRED TO AFFORD THE
UNION AN OPPORTUNITY TO BE PRESENT. HE NOTED IN THIS REGARD THAT THE
INTERVIEWS AT ISSUE DID NOT CONCERN A GRIEVANCE, NOR DID THEY DEAL WITH
PERSONNEL POLICIES OR PRACTICES OR MATTERS AFFECTING GENERAL WORKING
CONDITIONS OF EMPLOYEES IN THE UNIT. CONSEQUENTLY, RELYING ON HIS
DECISION IN DEPARTMENT OF DEFENSE, NATIONAL GUARD BUREAU, TEXAS AIR
NATIONAL GUARD, A/SLMR NO. 336, /1/ HE DETERMINED THAT THE AGENCY'S
ACTIONS DID NOT CONSTITUTE VIOLATIONS OF SUBSECTIONS 19(A)(1) OR (6) OF
THE ORDER. AS FOR YOUR ASSERTION THAT A HEARING WAS REQUIRED TO BRING
OUT "MANY ADDITIONAL FACTS," IN ADDITION TO THOSE UNDISPUTED IN THE
CASE, THE ASSISTANT SECRETARY DETERMINED, IN EFFECT, THAT IT WAS THE
UNION'S BURDEN AS THE COMPLAINING PARTY TO ADDUCE AT THE INVESTIGATIVE
STAGE THOSE FACTS NECESSARY TO ESTABLISH A REASONABLE BASIS FOR THE
COMPLAINT.
IN YOUR PETITION FOR REVIEW, YOU CONTEND THAT THE ASSISTANT
SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS BECAUSE: (1) HE
IMPROPERLY FAILED TO DIRECT A HEARING WHILE SUBSTANTIAL FACTUAL ISSUES
REMAINED TO BE RESOLVED, CONTRARY TO HIS OWN RULES OF PROCEDURE; (2) HE
MISCONSTRUED SECTION 10(E) OF THE ORDER IN CONCLUDING THAT THE
"INVESTIGATIVE INTERVIEWS" IN QUESTION WERE NOT "FORMAL DISCUSSIONS"
WITHIN THE MEANING OF THAT SECTION, AND THAT THE EMPLOYEE DID NOT HAVE
AN UNQUALIFIED RIGHT TO SEEK UNION REPRESENTATION DURING SUCH AN
INTERVIEW; AND, (3) THE ASSERTED MISCONSTRUCTION OF SECTION 10(E)
REPRESENTS AN UNEXPLAINED DEPARTURE FROM HIS PREVIOUS DECISIONS. YOU
ALSO CONTEND THAT THE ASSISTANT SECRETARY'S DECISION PRESENTS MAJOR
POLICY ISSUES CONCERNING THE RIGHTS OF UNIONS TO BE PRESENT AND THE
RIGHTS OF EMPLOYEES TO SELECT THE UNION TO BE THEIR REPRESENTATIVE AT
DISCUSSIONS BETWEEN EMPLOYEES AND THE AGENCY. FINALLY, YOU OBJECT TO
THE ADMISSION OF EVIDENCE SUBMITTED EX PARTE TO THE COUNCIL ON BEHALF OF
THE AGENCY.
IN THE COUNCIL'S VIEW, YOUR PETITION FOR REVIEW DOES NOT MEET THE
REQUIREMENTS OF SECTION 2411.12 OF THE COUNCIL'S RULES, THAT IS, THE
DECISION OF THE ASSISTANT SECRETARY DOES NOT APPEAR ARBITRARY AND
CAPRICIOUS NOR DOES IT PRESENT MAJOR POLICY ISSUES. THE ASSISTANT
SECRETARY DID NOT VIOLATE HIS OWN RULES OF PROCEDURE IN REFUSING TO
CONDUCT A HEARING. MOREOVER, HIS DECISION IS BASED ON THE LANGUAGE AND
MEANING OF SECTION 10(E) AND DOES NOT APPEAR TO DEPART IN ANY RESPECT
FROM INTERPRETATIONS OF THAT SECTION CONTAINED IN HIS EARLIER DECISIONS.
THEREFORE, THE COUNCIL FINDS THAT THE DECISION OF THE ASSISTANT
SECRETARY DOES NOT APPEAR TO BE WITHOUT REASONABLE JUSTIFICATION, OR IN
ANY MANNER ARBITRARY AND CAPRICIOUS. AS TO THE ALLEGED MAJOR POLICY
ISSUE, THE COUNCIL IS OF THE OPINION THAT, IN THE CIRCUMSTANCES
PRESENTED, THE ASSISTANT SECRETARY'S DETERMINATION, THAT DENIAL OF
REPRESENTATION AT THESE PARTICULAR INVESTIGATIVE INTERVIEWS WHICH WERE
NOT "FORMAL DISCUSSIONS" WITHIN THE MEANING OF SECTION 10(E) OF THE
ORDER DID NOT INTERFERE WITH ANY RIGHT ACCORDED UNDER THE ORDER, DOES
NOT PRESENT A MAJOR POLICY ISSUE WARRANTING COUNCIL REVIEW IN THIS CASE.
WITH RESPECT TO YOUR ASSERTIONS CONCERNING THE AGENCY'S EX PARTE
SUBMISSION OF EVIDENCE TO THE COUNCIL, IT HAS BEEN DEEMED UNNECESSARY,
IN REACHING THE DECISION HEREIN, TO EXAMINE THE MATERIAL IN QUESTION,
SUBMITTED BY THE AGENCY UNDER SEPARATE COVER AND DENOTED "FOR OFFICIAL
USE ONLY." THEREFORE, WITHOUT PASSING ON THE ADMISSIBILITY OF SUCH
MATERIAL, IT IS BEING RETURNED, UNOPENED, TO THE AGENCY.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS AND DOES NOT PRESENT A MAJOR POLICY ISSUE, YOUR APPEAL
FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED IN SECTION 2411.12
OF THE COUNCIL'S RULES OF PROCEDURE. ACCORDINGLY, YOUR PETITION FOR
REVIEW IS DENIED.
BY THE COUNCIL.
CC: G. JERRY SHAW, IRS
A/SLMR, LABOR
/1/ REVIEW SUBSEQUENTLY DENIED BY COUNCIL. (FLRC NO. 74A-11, JUNE
18, 1974, REPORT NO. 54).
2 FLRC 221; FLRC NOS. 73A-32 AND 73A-33; OCTOBER 22, 1974.
INTERNAL REVENUE SERVICE
CHICAGO DISTRICT
AND
NATIONAL TREASURY EMPLOYEES
UNION AND CHAPTER 10, NATIONAL
TREASURY EMPLOYEES UNION
(SYNOPSIS) FLRC NOS. 73A-32 AND 73A-33
INTERNAL REVENUE SERVICE, CHICAGO DISTRICT, A/SLMR NO. 279; AND
INTERNAL REVENUE SERVICE, WESTERN SERVICE CENTER, OGDEN, UTAH, A/SLMR
NO. 280. THESE TWO CASES INVOLVED THE SAME PRINCIPAL ISSUE, THAT IS,
THE PROPRIETY OF THE ASSISTANT SECRETARY'S HOLDING, IN EFFECT, THAT
SECTION 7(D)(1) OF THE ORDER DOES NOT CONFER ON SUPERVISORS ANY RIGHT TO
SELECT REPRESENTATIVES OF THEIR CHOICE IN AGENCY GRIEVANCE OR APPELLATE
ACTIONS, AND THAT AN AGENCY'S REFUSAL TO PERMIT SUCH CHOICE IS THEREFORE
NOT VIOLATIVE OF SECTION 19(A)(1) OF THE ORDER. THE COUNCIL ACCEPTED
THE CASES FOR REVIEW HAVING DETERMINED THAT MAJOR POLICY ISSUES ARE
PRESENT IN THE ASSISTANT SECRETARY'S DECISIONS (REPORT NO. 44).
COUNCIL ACTIONS (OCTOBER 22, 1974). BASED ON THE EXPRESS LANGUAGE,
CONTEXT AND "LEGISLATIVE HISTORY" OF SECTION 7(D)(1), THE COUNCIL AGREED
WITH THE ASSISTANT SECRETARY THAT THIS SECTION DOES NOT CONFER ANY
RIGHTS WHATSOEVER ON SUPERVISORS OR OTHER EMPLOYEES UNDER THE ORDER.
RATHER, SECTION 7(D)(1) SIMPLY MEANS THAT THE GRANTING OF EXCLUSIVE
RECOGNITION TO A LABOR ORGANIZATION DOES NOT PREVENT AN EMPLOYEES FROM
CHOOSING HIS OWN GRIEVANCE OR APPEALS REPRESENTATIVE (EXCEPT UNDER A
NEGOTIATED GRIEVANCE PROCEDURE) IF SUCH RIGHT IS GRANTED ELSEWHERE UNDER
LAW OR REGULATION. THE COUNCIL NOTED IN THIS REGARD THAT ALLEGED
VIOLATIONS OF SUCH RIGHTS GRANTED ELSEWHERE MAY BE RAISED IN THE
APPROPRIATE PROCEDURES ESTABLISHED BY THOSE DIRECTIVES PURSUANT TO WHICH
THE RIGHTS ARE CLAIMED. ACCORDINGLY, THE COUNCIL HELD THAT THE
ASSISTANT SECRETARY'S DISMISSAL OF THE 19(A)(1) COMPLAINTS, BASED ON HIS
FINDING THAT SECTION 7(D)(1) DOES NOT CONFER ANY RIGHTS ENFORCEABLE
UNDER SECTION 19, WAS CONSISTENT WITH THE PURPOSES OF THE ORDER AND MUST
BE SUSTAINED.
THIS APPEAL AROSE FROM A DECISION AND ORDER OF THE ASSISTANT
SECRETARY WHO, UPON A COMPLAINT FILED BY THE NATIONAL TREASURY EMPLOYEES
UNION AND CHAPTER 10, NATIONAL TREASURY EMPLOYEES UNION (HEREIN JOINTLY
CALLED THE UNION), /1/ HELD THAT THE INTERNAL REVENUE SERVICE, CHICAGO
DISTRICT (HEREIN REFERRED TO AS THE ACTIVITY) HAD NOT VIOLATED SECTION
19(A)(1) /2/ OF THE ORDER BY REFUSING TO PERMIT A SUPERVISORY EMPLOYEE
OF THE ACTIVITY TO SELECT THE REPRESENTATIVE OF HIS CHOICE IN CONNECTION
WITH HIS ACTION PURSUANT TO THE AGENCY'S GRIEVANCE PROCEDURE, ALLEGEDLY
IN CONTRAVENTION OF RIGHTS CONFERRED ON EMPLOYEES BY SECTION 7(D)(1) OF
THE ORDER.
THE PERTINENT FACTS AS FOUND BY THE ADMINISTRATIVE LAW JUDGE, WHOSE
FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS WERE ADOPTED BY THE ASSISTANT
SECRETARY, ARE ESSENTIALLY UNDISPUTED. BRIEFLY THE FACTS ARE AS
FOLLOWS: A SUPERVISOR /3/ AT THE ACTIVITY, WHO HAD BEEN REASSIGNED FROM
ONE SUPERVISORY POSITION TO ANOTHER, FELT THAT THE REASSIGNMENT HAD
LESSENED HIS OPPORTUNITY FOR PROMOTION. AS A RESULT, HE FILED A
GRIEVANCE UNDER THE AGENCY GRIEVANCE PROCEDURE SEEKING REINSTATEMENT TO
HIS FORMER POSITION. A MEMBER OF THE UNION, HE DESIGNATED THE PRESIDENT
OF THE LOCAL CHAPTER TO BE HIS REPRESENTATIVE IN THE GRIEVANCE
PROCEEDING. THE ACTIVITY DECLINED TO PERMIT THE SUPERVISOR TO BE
REPRESENTED BY AN OFFICIAL OF THE UNION. FOLLOWING UNSUCCESSFUL
ATTEMPTS TO RESOLVE THE MATTER, THE UNION FILED THE INSTANT UNFAIR LABOR
PRACTICE COMPLAINT.
THE ASSISTANT SECRETARY DETERMINED, IN PERTINENT PART, THAT SECTION
7(D)(1) OF THE ORDER DOES NOT CONFER ANY RIGHTS ENFORCEABLE UNDER
SECTION 19 OF THE ORDER. IN THIS REGARD, HE FOUND THAT SECTION 7(D)(1)
SIMPLY DISAVOWS THE TAKING AWAY OF CERTAIN RIGHTS THAT MAY BE CONFERRED
BY LAW OR REGULATION; AND THAT ANY RIGHTS FLOWING FROM SECTION 10(E) DO
NOT FLOW TO SUPERVISORS. /4/ ACCORDINGLY, THE ASSISTANT SECRETARY
DISMISSED THE COMPLAINT.
THE UNION APPEALED THE ASSISTANT SECRETARY'S DECISION TO THE COUNCIL.
THE COUNCIL FOUND THAT MAJOR POLICY ISSUES WERE PRESENTED BY THE
DECISION AND ACCEPTED THE PETITION FOR REVIEW. THE UNION AND THE
INTERNAL REVENUE SERVICE FILED BRIEFS WITH THE COUNCIL.
THE QUESTION PRESENTED BY THIS CASE IS WHETHER, AS DETERMINED BY THE
ASSISTANT SECRETARY, SECTION 7(D)(1) DOES NOT CONFER ANY RIGHTS
ENFORCEABLE UNDER SECTION 19 OF THE ORDER. FOR THE REASONS WHICH
FOLLOW, THE COUNCIL AGREES WITH THE DETERMINATION OF THE ASSISTANT
SECRETARY. /5/
THE UNION PRINCIPALLY ALLEGES THAT SECTION 7(D)(1) CONFERS UPON
EMPLOYEES AN UNQUALIFIED RIGHT TO APPOINT REPRESENTATIVES OF THEIR
CHOICE IN ACTIONS UNDER AGENCY GRIEVANCE PROCEDURES; AND, THE "RIGHT
NOT TO BE PRECLUDED FROM EXERCISING THE RIGHT" TO DESIGNATE SUCH
REPRESENTATIVES IN SUCH ACTIONS, "NO MATTER WHAT IS THE SOURCE OF THAT
RIGHT." /6/ THE UNION BASES ITS ASSERTIONS ON ITS INTERPRETATION OF THE
LANGUAGE AND CONSTRUCTION OF SECTION 7(D)(1), AS WELL AS CERTAIN
LANGUAGE EXTRACTED FROM THE REPORT AND RECOMMENDATIONS ON THE AMENDMENT
OF EXECUTIVE ORDER 11491.
SECTION 7(D)(1) OF THE ORDER PROVIDES AS FOLLOWS:
SEC. 7. RECOGNITION IN GENERAL
(D) RECOGNITION OF A LABOR ORGANIZATION DOES NOT-
PRECLUDE AN EMPLOYEE, REGARDLESS OF WHETHER HE IS IN A UNIT OF
EXCLUSIVE RECOGNITION, FROM
EXERCISING GRIEVANCE OR APPELLATE RIGHTS ESTABLISHED BY LAW OR
REGULATIONS; OR FROM CHOOSING
HIS OWN REPRESENTATIVE IN A GRIEVANCE OR APPELLATE ACTION, EXCEPT
WHEN PRESENTING A GRIEVANCE
UNDER A NEGOTIATED PROCEDURE AS PROVIDED IN SECTION 13;
IN OUR OPINION, THE LITERAL MEANING OF THE QUOTED LANGUAGE IS CLEAR
AND UNAMBIGUOUS. THE LANGUAGE NEITHER EXPLICITLY NOR IMPLIEDLY PURPORTS
TO CONFER ON EMPLOYEES ANY RIGHTS, WHATSOEVER. RATHER, THE LANGUAGE
PLAINLY MEANS ONLY THAT THE ACCORDING OF EXCLUSIVE RECOGNITION TO A
LABOR ORGANIZATION DOES NOT PRECLUDE AN EMPLOYEE FROM CHOOSING HIS OWN
GRIEVANCE OR APPEALS REPRESENTATIVE (EXCEPT UNDER A NEGOTIATED GRIEVANCE
PROCEDURE) IN THE EVENT THAT THE EMPLOYEE WOULD HAVE BEEN ENTITLED TO
MAKE SUCH A CHOICE IF RECOGNITION OF THE LABOR ORGANIZATION HAD NOT BEEN
ACCORDED. THUS, THE PURPOSE MANIFESTED BY THE LANGUAGE OF SECTION
7(D)(1) MERELY IS TO EXPLICATE THAT THE ACCORDING OF RECOGNITION, ON THE
ONE HAND, IS UNRELATED TO THE CHOOSING BY AN EMPLOYEE OF HIS
REPRESENTATIVE IN A GRIEVANCE OR APPEALS ACTION (EXCEPT UNDER A
NEGOTIATED GRIEVANCE PROCEDURE), ON THE OTHER.
THIS CONCLUSION AS TO THE MEANING AND PURPOSE OF SECTION 7(D)(1) IS
CONFIRMED BY CONSIDERATION OF THE CONTEXT IN WHICH THE SECTION APPEARS.
AS INDICATED BY ITS TITLE, SECTION 7 IS CONCERNED PRIMARILY WITH THE
SUBJECT OF "RECOGNITION IN GENERAL." THUS, SECTIONS 7(A), 7(B) AND 7(C)
DEAL RESPECTIVELY WITH, IN EFFECT, WHEN AN AGENCY SHALL ACCORD
RECOGNITION, CERTAIN REQUIREMENTS IMPOSED UPON A UNION SEEKING
RECOGNITION, AND THE DURATION OF RECOGNITION WHICH HAS BEEN ACCORDED.
THAT IS, THESE SECTIONS ARE CONCERNED ONLY WITH THE PROCESS OF ACHIEVING
AND RETAINING EXCLUSIVE RECOGNITION BY A LABOR ORGANIZATION AND NOT AT
ALL WITH THE CONFERRING OF INDIVIDUAL EMPLOYEE RIGHTS TO CHOOSE
REPRESENTATIVES IN PARTICULAR ACTIONS. SET IN THIS CONTEXT, THE
REMAINDER OF SECTION 7(D), ITSELF, /7/ PLAINLY DOES NOT CONFER RIGHTS OR
IN ANY MANNER INDICATE THAT RIGHTS, NOT OTHERWISE EXISTING, ARE
ESTABLISHED THEREBY. CLEARLY, APART FROM SOME DISTINCTIONS NOT RELEVANT
HERE, THE PROVISIONS OF SECTION 7(D) ARE CONSISTENT AS TO THE MEANING OF
THEIR COMMON PHRASEOLOGY-- "RECOGNITION OF A LABOR ORGANIZATION DOES
NOT- . . . PRECLUDE . . . (CERTAIN ACTS OR CONDUCT)"-- AND AS TO THEIR
OBVIOUSLY COMMON PURPOSE-- TO INDICATE SIMPLY THAT THE ACCORDING OF
RECOGNITION TO A LABOR ORGANIZATION UNDER THE ORDER DOES NOT HAVE THE
LEGAL CONSEQUENCE OF PRECLUDING THE ACTS AND CONDUCT ENUMERATED IN THE
WHOLE OF SECTION 7(D) WHICH MIGHT BE UNDERTAKEN PURSUANT TO RIGHTS
ELSEWHERE CONFERRED BY LAW OR REGULATION.
FURTHER, IN THIS REGARD, THE COUNCIL FINDS TO BE WITHOUT MERIT THE
UNION'S ASSERTION, PREVIOUSLY MENTIONED, THAT THE COUNCIL'S 1971 REPORT
AND RECOMMENDATION ON THE AMENDMENT OF EXECUTIVE ORDER 11491 CONTAINS
LANGUAGE INDICATING THAT THE ORDER CONFERS RIGHTS IN CONNECTION WITH AN
EMPLOYEE'S CHOICE OF REPRESENTATIVE IN GRIEVANCE ACTIONS. IN THAT
REPORT, THE COUNCIL STATED THAT, "THE ORDER AND (CIVIL SERVICE
COMMISSION) REGULATIONS RESERVE TO THE EMPLOYEE RIGHTS TO CHOOSE HIS OWN
REPRESENTATIVE (WHICH MAY BE A RIVAL UNION) . . . " /8/
IN THE FIRST PLACE, THE RESERVATION OF RIGHTS REFERRED TO IN THE
REPORT, ON ITS FACE, IS NOT A CONFERRAL OF SUCH RIGHTS BUT, AS SIMILARLY
NOTED IN OUR PREVIOUS DISCUSSION OF SECTION 7(D)(1), AMOUNTS TO A
DISCLAIMER OF EFFECT ON RIGHTS ELSEWHERE CONFERRED. MOREOVER, IN
CONTEXT, THE QUOTED LANGUAGE REFERS TO THE THEM EXISTING SITUATION WITH
REGARD TO NEGOTIATED GRIEVANCE PROCEDURES WHEREBY "THE ROLE OF THE
EXCLUSIVE UNION . . . (WAS) DIMINISHED AND DISTORTED BY PERMITTING A
RIVAL UNION TO REPRESENT A GRIEVANT WITH RESPECT TO THE INTERPRETATION
AND APPLICATION OF THE AGREEMENT NEGOTIATED BY THE EXCLUSIVE
REPRESENTATIVE . . . " THUS, THE COUNCIL RECOMMENDED THAT THE ORDER BE
AMENDED TO PERMIT AN EMPLOYEE TO FILE A GRIEVANCE UNDER THE NEGOTIATED
GRIEVANCE PROCEDURE "ONLY WITH REPRESENTATION BY THE EXCLUSIVE UNION OR
A REPRESENTATIVE APPROVED BY THE UNION." /9/ SUCH A POLICY CURRENTLY IS
EMBODIED IN SECTION 13 OF THE ORDER AND IS REFLECTED IN THE "EXCEPTION"
PORTION OF SECTION 7(D)(1), AS PREVIOUSLY SET FORTH HEREIN. THEREFORE,
SINCE THE REPORT LANGUAGE RELIED UPON BY THE UNION CONCERNS NEGOTIATED
RATHER THAN AGENCY GRIEVANCE PROCEDURES, AS ARE HERE INVOLVED, AND,
MOREOVER, SINCE IN ANY EVENT A RESERVATION OF RIGHTS IS NOT A CONFERRAL
OF RIGHTS, WE FIND THAT THE LANGUAGE RELIED UPON DOES NOT SUPPORT THE
CLAIMS AT ISSUE IN THE INSTANT CASE.
ACCORDINGLY, BASED ON THE FOREGOING, WE FIND THE ASSISTANT
SECRETARY'S DISMISSAL OF THE UNION'S 19(A)(1) UNFAIR LABOR PRACTICE
COMPLAINT, BASED ON HIS FINDING THAT SECTION 7(D)(1) OF THE ORDER DOES
NOT CONFER ANY RIGHTS ENFORCEABLE UNDER SECTION 19, TO BE CONSISTENT
WITH THE PURPOSES OF THE ORDER. /10/
ACCORDINGLY, PURSUANT TO SECTION 2411.17(B) OF THE COUNCIL'S RULES OF
PROCEDURE, WE SUSTAIN THE ASSISTANT SECRETARY'S DISMISSAL OF THE
COMPLAINT.
BY THE COUNCIL.
ISSUED: OCTOBER 22, 1974.
INTERNAL REVENUE SERVICE
WESTERN SERVICE CENTER
OGDEN, UTAH
AND
NATIONAL TREASURY EMPLOYEES
UNION AND CHAPTER 67, NATIONAL
TREASURY EMPLOYEES UNION
THIS APPEAL, WHICH WAS ACCEPTED FOR REVIEW BY THE COUNCIL, AROSE FROM
A DECISION AND ORDER OF THE ASSISTANT SECRETARY WHO, UPON A COMPLAINT
FILED BY THE NATIONAL TREASURY EMPLOYEES UNION AND CHAPTER 67, NATIONAL
TREASURY EMPLOYEES UNION (HEREIN JOINTLY CALLED THE UNION) /11/ HELD
THAT THE INTERNAL REVENUE SERVICE, WESTERN SERVICE CENTER, OGDEN, UTAH,
HAD NOT VIOLATED SECTION 19(A)(1) OF THE ORDER BY ANNOUNCING A POLICY
WHEREBY A SUPERVISOR WOULD NOT BE PERMITTED TO BE REPRESENTED IN A
GRIEVANCE OR APPELLATE ACTION BY A REPRESENTATIVE OF THE LABOR
ORGANIZATION THAT REPRESENTS EMPLOYEES SUPERVISED BY THE AGGRIEVED
SUPERVISOR. IN REACHING HIS DECISION ON THIS ISSUE, THE ASSISTANT
SECRETARY RELIED EXCLUSIVELY ON HIS DECISION IN INTERNAL REVENUE
SERVICE, CHICAGO DISTRICT, A/SLMR NO. 279.
ON THIS DATE THE COUNCIL HAS ISSUED ITS DECISION ON APPEAL FROM
ASSISTANT SECRETARY DECISION IN THE MATTERS OF INTERNAL REVENUE SERVICE,
CHICAGO DISTRICT, A/SLMR NO. 279, FLRC NO. 73A-32, IN WHICH IT
SUSTAINED THE ASSISTANT SECRETARY'S FINDING THAT THE AGENCY HAD NOT
VIOLATED SECTION 19(A)(1) OF THE ORDER BY REFUSING TO PERMIT A
SUPERVISOR TO SELECT THE REPRESENTATIVE OF HIS CHOICE IN CONNECTION WITH
HIS ACTION PURSUANT TO THE AGENCY'S GRIEVANCE PROCEDURE. FOR THE
REASONS FULLY SET FORTH IN THAT DECISION, AND PURSUANT TO SECTION
2411.17 OF THE COUNCIL'S RULES OF PROCEDURE, WE FIND THAT THE ASSISTANT
SECRETARY'S DECISION IN THE INSTANT CASE, WITH RESPECT TO A FINDING THAT
THE AGENCY DID NOT VIOLATE SECTION 19(A)(1) OF THE ORDER, IS CONSISTENT
WITH THE PURPOSES OF THE ORDER, AND, THEREFORE, IT IS SUSTAINED.
BY THE COUNCIL.
ISSUED: OCTOBER 22, 1974.
/1/ THE NAME OF THE UNION APPEARS AS AMENDED DURING THE PENDENCY OF
THE INSTANT PROCEEDING.
/2/ SECTION 19(A)(1) OF THE ORDER PROVIDES AS FOLLOWS:
SEC. 19 UNFAIR LABOR PRACTICES. (A) AGENCY MANAGEMENT SHALL NOT-
INTERFERE WITH, RESTRAIN, OR COERCE AN EMPLOYEE IN THE EXERCISE OF
THE RIGHTS ASSURED BY THIS ORDER;
/3/ IN VIEW OF THE COUNCIL'S CONCLUSION HEREIN, THAT SECTION 7(D)(1)
DOES NOT CONFER ANY RIGHTS EITHER ON A SUPERVISORY OR ON A
NONSUPERVISORY EMPLOYEE, THE FACT THAT THE GRIEVANT IN THE INSTANT CASE
IS A SUPERVISOR IS, TO THAT EXTENT, WITHOUT SIGNIFICANCE.
/4/ THE COUNCIL AGREES WITH THE ASSISTANT SECRETARY THAT SECTION
10(E) IS NOT APPLICABLE IN THE PRESENT CASE. SECTION 10(E) EXPRESSLY
APPLIES TO "EMPLOYEES IN THE UNIT" AND, UNDER SECTION 10(B), A UNIT MAY
NOT INCLUDE A SUPERVISOR. THEREFORE, SINCE THE INSTANT CASE INVOLVES A
SUPERVISOR, THE COUNCIL FINDS IT UNNECESSARY IN REACHING ITS DECISION TO
CONSIDER QUESTIONS AS TO WHICH RIGHTS, IF ANY, FLOW TO EMPLOYEES UNDER
SECTION 10(E) OF THE ORDER.
/5/ THE COUNCIL'S CONCLUSION HEREIN IS ADDRESSED TO WHETHER SECTION
7(D)(1) OF THE ORDER CONFERS ANY RIGHTS UPON SUPERVISORY OR
NONSUPERVISORY EMPLOYEES. IN ARRIVING AT THIS CONCLUSION WE DO NOT
REACH OR IN ANY RESPECT PASS ON THE ISSUE, CURRENTLY UNDER STUDY BY THE
COUNCIL IN CONNECTION WITH ITS GENERAL REVIEW OF THE FEDERAL
LABOR-MANAGEMENT RELATIONS PROGRAM, AS TO, "WHAT POLICY SHOULD PERTAIN
TO THE REPRESENTATION OF SUPERVISORS BY UNIONS IN PROCEEDINGS UNDER
AGENCY GRIEVANCE AND APPEALS PROCEDURES."
/6/ IN THIS REGARD, THE UNION CLAIMS THAT AGENCY REGULATIONS AND THE
FEDERAL PERSONNEL MANUAL CONFER ON THE GRIEVANT IN THE INSTANT CASE THE
RIGHT TO CHOOSE HIS OWN REPRESENTATIVE. THE COUNCIL FINDS IT
UNNECESSARY TO CONSIDER THESE CLAIMS IN REACHING ITS DECISION HEREIN
AND, OF COURSE, DOES NOT PASS ON THE MERTIS OF SUCH CLAIMS.
/7/ SECTIONS 7(D)(2) AND 7(D)(3) PROVIDE AS FOLLOWS:
(D) RECOGNITION OF A LABOR ORGANIZATION DOES NOT-
(2) PRECLUDE OR RESTRICT CONSULTATIONS AND DEALINGS BETWEEN AN AGENCY
AND A VETERANS
ORGANIZATION WITH RESPECT TO MATTERS OF PARTICULAR INTEREST TO
EMPLOYEES WITH VETERANS
PREFERENCE; OR
(3) PRECLUDE AN AGENCY FROM CONSULTING OR DEALING WITH A RELIGIOUS,
SOCIAL, FRATERNAL,
PROFESSIONAL OR OTHER LAWFUL ASSOCIATION, NOT QUALIFIED AS A LABOR
ORGANIZATION, WITH RESPECT
TO MATTERS OR POLICIES WHICH INVOLVE INDIVIDUAL MEMBERS OF THE
ASSOCIATION OR ARE OF
PARTICULAR APPLICABILITY TO IT OR ITS MEMBERS. CONSULTATIONS AND
DEALINGS UNDER SUBPARAGRAPH
(3) OF THIS PARAGRAPH SHALL BE SO LIMITED THAT THEY DO NOT ASSUME THE
CHARACTER OF FORMAL
CONSULTATION ON MATTERS OF GENERAL EMPLOYEE-MANAGEMENT POLICY, EXCEPT
AS PROVIDED IN PARAGRAPH
(E) OF THIS SECTION, OR EXTEND TO AREAS WHERE RECOGNITION OF THE
INTERESTS OF ONE EMPLOYEE
GROUP MAY RESULT IN DISCRIMINATION AGAINST OR INJURY TO THE INTERESTS
OF OTHER EMPLOYEES.
/8/ LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1971), P. 28.
/9/ ID.
/10/ ALLEGED VIOLATIONS OF RIGHTS CLAIMED BY THE UNION TO BE
CONFERRED BY AGENCY REGULATIONS AND THE FEDERAL PERSONNEL MANUAL, NOT
REMEDIABLE UNDER THE ORDER, MAY BE RAISED IN APPROPRIATE PROCEDURES
ESTABLISHED BY THE DIRECTIVES PURSUANT TO WHICH THE RIGHTS ARE CLAIMED.
/11/ THE NAME OF THE UNION APPEARS AS AMENDED DURING THE PENDENCY OF
THE INSTANT PROCEEDING.
2 FLRC 217; FLRC NO. 74A-14; OCTOBER 21, 1974.
MR. FRANCIS M. O'LAUGHLIN
NATIONAL PRESIDENT
NATIONAL ASSOCIATION OF
GOVERNMENT INSPECTORS
NATIONAL HEADQUARTERS
P.O. BOX 31257
JACKSONVILLE, FLORIDA 32230
(SYNOPSIS) FLRC NO. 74A-14
DEPARTMENT OF THE NAVY, NAVAL AIR REWORK FACILITY, JACKSONVILLE,
FLORIDA, A/SLMR NO. 344. THE UNION (NATIONAL ASSOCIATION OF GOVERNMENT
INSPECTORS AND QUALITY ASSURANCE PERSONNEL, UNIT NO. 1) SOUGHT AN
ELECTION IN A UNIT OF PROFESSIONAL ENGINEERS IN THE ACTIVITY'S QUALITY
AND RELIABILITY ASSURANCE DEPARTMENT, CONTENDING THAT THOSE
PROFESSIONALS, TOGETHER WITH NONPROFESSIONAL EMPLOYEES IN THAT
DEPARTMENT ALREADY REPRESENTED IN A SEPARATE UNIT BY THE UNION, SHARED A
COMMUNITY OF INTEREST. THE ASSISTANT SECRETARY, IN HIS DECISION AS
CLARIFIED, FOUND AMONG OTHER THINGS THAT THE CLAIMED PROFESSIONAL
ENGINEERS LACKED A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE
AND DISTINCT FROM OTHER PROFESSIONAL ENGINEERS AT THE ACTIVITY, AND THAT
THE UNIT SOUGHT BY THE UNION WAS THEREBY INAPPROPRIATE. THE UNION
APPEALED TO THE COUNCIL, CONTENDING THAT THE ASSISTANT SECRETARY'S
DECISION WAS ARBITRARY AND CAPRICIOUS AND PRESENTED MAJOR POLICY ISSUES,
ALLEGEDLY BECAUSE THE ASSISTANT SECRETARY FAILED TO UNDERSTAND THAT THE
UNION WAS SEEKING ONLY TO ADD THE CLAIMED PROFESSIONAL ENGINEERS TO THE
EXISTING NONPROFESSIONAL UNIT, AND BECAUSE SUCH A MIXED UNIT IS
APPROPRIATE.
COUNCIL ACTION (OCTOBER 21, 1974). THE COUNCIL HELD THAT THE
ASSISTANT SECRETARY'S DECISION AS CLARIFIED DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS, NOR DOES IT PRESENT ANY MAJOR POLICY ISSUES. IN THIS
REGARD, THE COUNCIL NOTED THE EXPLICIT STATEMENT IN THE ASSISTANT
SECRETARY'S DECISION THAT HE HAD CONSIDERED THE UNION'S PETITION AS
SEEKING TO ADD THE CLAIMED PROFESSIONALS TO AN EXISTING NONPROFESSIONAL
UNIT, AND HIS CONCLUSION THAT ANY RESULTING MIXED UNIT (OR A SEPARATE
UNIT) WOULD BE INAPPROPRIATE BECAUSE IT WOULD NOT INCLUDE OTHER
EMPLOYEES HAVING A COMMUNITY OF INTEREST WITH THOSE SOUGHT BY THE UNION.
THE COUNCIL ALSO FOUND THAT THE ASSISTANT SECRETARY'S DECISION DOES NOT
APPEAR INCONSISTENT WITH HIS PREVIOUS RULINGS OR THE PURPOSES OF THE
ORDER, OR OTHERWISE WITHOUT REASONABLE JUSTIFICATION. ACCORDINGLY, THE
COUNCIL DENIED REVIEW OF THE UNION'S APPEAL UNDER SECTION 2411.12 OF THE
COUNCIL'S RULES OF PROCEDURE (5 CFR 2411.12).
DEAR MR. O'LAUGHLIN:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION AND THE AGENCY'S OPPOSITION THERETO, AND
THE ADDITIONAL COMMENTS AND ARGUMENTS FILED BY THE PARTIES FOLLOWING
RECEIPT OF THE ASSISTANT SECRETARY'S CLARIFICATION OF HIS DECISION IN
THE ABOVE-ENTITLED CASE.
THE NATIONAL ASSOCIATION OF GOVERNMENT INSPECTORS AND QUALITY
ASSURANCE PERSONNEL, UNIT NO. 1, REPRESENTS A UNIT OF APPROXIMATELY
80-85 NONPROFESSIONAL QUALITY ASSURANCE SPECIALISTS EMPLOYED IN THE
ACTIVITY'S QUALITY AND RELIABILITY ASSURANCE DEPARTMENT. UNIT NO. 1
SOUGHT AN ELECTION, ACCORDING TO THE FINDINGS OF THE ASSISTANT
SECRETARY, "IN A UNIT CONSISTING OF ALL PROFESSIONAL EMPLOYEES OF THE
QUALITY AND RELIABILITY ASSURANCE DEPARTMENT . . . EXCLUDING ALL
NONPROFESSIONAL EMPLOYEES . . . " CONTENDING THAT THOSE PROFESSIONAL
EMPLOYEES, TOGETHER WITH EMPLOYEES IN THAT DEPARTMENT ALREADY
REPRESENTED IN A SEPARATE UNIT BY THE PETITIONER, SHARED A COMMUNITY OF
INTEREST. THE ASSISTANT SECRETARY FOUND THAT A UNIT LIMITED TO THE
PROFESSIONAL ENGINEERS OF THE QUALITY AND RELIABILITY ASSURANCE
DEPARTMENT OF THE ACTIVITY IS NOT APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION, IN THAT THEY DO NOT HAVE A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM OTHER PROFESSIONAL
ENGINEERS LOCATED AT THE ACTIVITY. HE ALSO CONCLUDED THAT SUCH A
FRAGMENTED UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS. THE ASSISTANT SECRETARY ORDERED THAT THE PETITION BE
DISMISSED.
FOLLOWING RECEIPT OF YOUR APPEAL, THE COUNCIL REQUESTED CLARIFICATION
OF THE ASSISTANT SECRETARY'S DECISION, AS TO (A) WHETHER HE CONSIDERED
YOUR PETITION AS ONE SEEKING TO ADD THE PROFESSIONALS TO AN EXISTING
NONPROFESSIONAL UNIT; AND (B) IF SO, THE REASONS WHICH HE HAD FOR NOT
ADDRESSING THE APPROPRIATENESS OF SUCH A MIXED UNIT. IN RESPONSE, THE
ASSISTANT SECRETARY STATED THAT HE HAD CONSIDERED YOUR REPRESENTATION
PETITION "AS ONE SEEKING TO ADD CERTAIN PROFESSIONAL EMPLOYEES TO AN
EXISTING NONPROFESSIONAL UNIT." FURTHER, WITH REGARD TO HIS REASONS FOR
NOT ADDRESSING THE APPROPRIATENESS OF SUCH A MIXED UNIT, HE STATED THAT:
. . . IT WAS FOUND THAT A UNIT LIMITED TO THE PROFESSIONAL ENGINEERS
OF THE QUALITY AND
RELIABILITY ASSURANCE DEPARTMENT OF THE ACTIVITY WAS NOT APPROPRIATE
FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION. IN THIS CONNECTION, IT WAS CONCLUDED, AMONG
OTHER THINGS, THAT THE
CLAIMED PROFESSIONAL ENGINEERS DID NOT HAVE A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST
SEPARATE AND DISTINCT FROM OTHER PROFESSIONAL ENGINEERS LOCATED AT
THE ACTIVITY. IN MY
JUDGMENT, THE FOREGOING CONCLUSIONS WERE DETERMINATIVE EITHER IN THE
EVENT THAT, PURSUANT TO
SECTION 10(B)(4) OF THE ORDER, THE CLAIMED PROFESSIONAL ENGINEERS DID
NOT VOTE TO BE INCLUDED
IN THE EXISTING UNIT, BUT, RATHER, INDICATED A DESIRE TO CONSTITUTE A
SEPARATE UNIT, OR IN THE
EVENT THAT THEY VOTED TO BE ADDED TO THE EXISTING NONPROFESSIONAL
UNIT. THUS, IN EITHER CASE,
THE CLAIMED PROFESSIONAL ENGINEERS WERE VIEWED AS AN INAPPROPRIATE
GROUPING OF EMPLOYEES WHO
SHARED A COMMUNITY OF INTEREST WITH OTHER PROFESSIONAL EMPLOYEES NOT
COVERED BY THE INSTANT
PETITION. BASED ON THESE CONSIDERATIONS, CLEARLY, ANY RESULTING
'MIXED UNIT' WOULD BE
INAPPROPRIATE AS IT WOULD NOT INCLUDE CERTAIN EMPLOYEES HAVING A
COMMUNITY OF INTEREST WITH
THOSE IN THE 'MIXED UNIT.'
IN YOUR PETITION FOR REVIEW, YOU CONTEND THAT THE ASSISTANT
SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS, AND PRESENTS MAJOR
POLICY ISSUES, PRIMARILY BECAUSE, AS YOU ALLEGE, THE ASSISTANT SECRETARY
HAS MISUNDERSTOOD THE INTENT OF THE SUBJECT REPRESENTATION PETITION AS
SEEKING TO ESTABLISH A SEPARATE UNIT OF PROFESSIONALS, RATHER THAN TO
ADD THE PROFESSIONALS TO THE EXISTING NONPROFESSIONAL UNIT.
CONSEQUENTLY, YOU CONCLUDE THAT HIS HOLDING AS TO THE INAPPROPRIATENESS
OF A SEPARATE PROFESSIONAL UNIT IS ERRONEOUS. MOREOVER, YOU CONTEND
THAT THE "MIXED" UNIT OF PROFESSIONALS AND NONPROFESSIONALS SOUGHT IS AN
APPROPRIATE UNIT UNDER THE ORDER, AND THAT THE PETITIONED-FOR
PROFESSIONALS THEREFORE HAVE A RIGHT TO BE REPRESENTED IN SUCH A MIXED
UNIT IF THEY SO DESIRE. IN RESPONSE TO THE ASSISTANT SECRETARY'S
CLARIFICATION OF HIS DECISION, YOU CONTEND ESSENTIALLY THAT THE
ASSISTANT SECRETARY'S VIEW THAT THE PROFESSIONAL ENGINEERS SOUGHT DO NOT
HAVE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE AND
DISTINCT FROM OTHER PROFESSIONAL ENGINEERS AT THE ACTIVITY IS IRRELEVANT
AND THAT HIS DECISION IS NOT IN CONSONANCE WITH PREVIOUS RULINGS AND NOT
IN HARMONY WITH THE INTENT AND PHILOSOPHY OF PROTECTING INDIVIDUAL
RIGHTS.
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW OF THE ASSISTANT
SECRETARY'S DECISION DOES NOT MEET THE REQUIREMENTS OF SECTION 2411.12
OF THE COUNCIL'S RULES; THAT IS, HIS FINDINGS AND DECISION DO NOT
APPEAR IN ANY MANNER ARBITRARY AND CAPRICIOUS NOR DO THEY PRESENT A
MAJOR POLICY ISSUE. WITH REGARD TO YOUR CONTENTION THAT THE ASSISTANT
SECRETARY MISUNDERSTOOD THE SUBJECT REPRESENTATION PETITION, HE STATES
IN HIS CLARIFICATION, "THE SUBJECT PETITION WAS CONSIDERED AS ONE
SEEKING TO ADD CERTAIN PROFESSIONAL EMPLOYEES TO AN EXISTING
NONPROFESSIONAL UNIT." WE INTERPRET THE ASSISTANT SECRETARY'S DECISION,
AS CLARIFIED, AS FINDING THAT UNDER THE FACTS OF THE CASE A UNIT
CONSISTING OF THE PROFESSIONAL EMPLOYEES SOUGHT AND THE NONPROFESSIONALS
CURRENTLY REPRESENTED WOULD NOT CONSTITUTE AN APPROPRIATE UNIT.
ACCORDINGLY, THE ASSISTANT SECRETARY'S FINDING WITH REGARD TO THE
LACK OF A "CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST" ON THE PART OF
THE FIVE PROFESSIONAL ENGINEERS, SEPARATE AND DISTINCT FROM OTHER
PROFESSIONALS, WAS NOT THE RESULT OF A MISINTERPRETATION OF THE UNION'S
REPRESENTATION PETITION, BUT RATHER WAS THE BASIS FOR HIS HOLDING THAT
"ANY RESULTING 'MIXED UNIT" WOULD BE INAPPROPRIATE AS IT WOULD NOT
INCLUDE CERTAIN EMPLOYEES HAVING A COMMUNITY OF INTEREST WITH THOSE IN
THE 'MIXED UNIT.'" FURTHER, AS HE NOTED IN HIS CLARIFICATION, SHOULD THE
CLAIMED PROFESSIONAL ENGINEERS VOTE FOR REPRESENTATION IN A SEPARATE
UNIT PURSUANT TO SECTION 10(B)(4) OF THE ORDER, THEY WOULD CONSTITUTE
"AN INAPPROPRIATE GROUPING OF EMPLOYEES." NOR DOES IT APPEAR FROM YOUR
PETITION THAT THE ASSISTANT SECRETARY'S DECISION IS NOT CONSONANT WITH
PREVIOUS RULINGS OR NOT IN HARMONY WITH THE INTENT AND PHILOSOPHY OF
PROTECTING INDIVIDUAL RIGHTS. AS TO YOUR CONTENTION THAT THE DECISION
OF THE ASSISTANT SECRETARY APPEARS ARBITRARY AND CAPRICIOUS, IT DOES NOT
APPEAR THAT THE FINDINGS AND DECISION OF THE ASSISTANT SECRETARY WERE
WITHOUT REASONABLE JUSTIFICATION.
ACCORDINGLY, BECAUSE YOUR APPEAL FAILS TO MEET THE REQUIREMENTS FOR
REVIEW AS PROVIDED UNDER SECTION 2411.12 OF THE COUNCIL'S RULES OF
PROCEDURE, REVIEW OF YOUR APPEAL IS DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT OF LABOR
A. DI PASQUALE
NAVY
2 FLRC 207; FLRC NO. 73A-25; SEPTEMBER 30, 1974.
AFGE (NATIONAL BORDER PATROL COUNCIL
AND NATIONAL COUNCIL FOR IMMIGRATION
AND NATURALIZATION SERVICE LOCALS)
AND
IMMIGRATION AND NATURALIZATION SERVICE
(SYNOPSIS) FLRC NO. 73A-25
AFGE (NATIONAL BORDER PATROL COUNCIL AND NATIONAL COUNCIL FOR
IMMIGRATION AND NATURALIZATION SERVICE LOCALS) AND IMMIGRATION AND
NATURALIZATION SERVICE. THE DISPUTE IN THIS CASE CONCERNED THE
NEGOTIABILITY UNDER THE ORDER OF UNION PROPOSALS WHICH WOULD: (1)
PROVIDE THAT GRIEVANCES WHICH ARE SUBJECT TO THE NEGOTIATED GRIEVANCE
PROCEDURE SHALL CONFORM TO THE SAME PROCEDURAL REQUIREMENTS AS PERTAIN
TO ADVERSE ACTIONS; (2) ESTABLISH RATIOS FOR INSPECTORS TO PASSENGERS
DURING OVERTIME ASSIGNMENTS; (3) PROSCRIBE THE OVERTIME USE OF BORDER
PATROL AGENTS ON ALIEN BUS MOVEMENTS WHEN DETENTION GUARDS ARE READILY
AVAILABLE; AND (4) PROHIBIT THE ASSIGNMENT OF NONINSPECTION DUTIES TO
I&NS PERSONNEL CALLED IN FOR INSPECTION WORK ON AN OVERTIME BASIS.
COUNCIL ACTION (SEPTEMBER 30, 1974). AS TO (1), THE COUNCIL, BASED
PRINCIPALLY ON ITS DECISIONS IN THE ELMENDORF CASE, FLRC NO. 72A-10, AND
THE LOUISVILLE NAVAL ORDNANCE CASE, FLRC NO. 73A-21, AND ON RELEVANT
PROVISIONS IN SECTIONS 12(A) AND 13 OF THE ORDER, FOUND THAT THE UNION'S
PROPOSAL IS NEGOTIABLE. WITH RESPECT TO (2), THE COUNCIL RULED THAT THE
PROPOSAL IS EXCLUDED FROM THE AGENCY'S OBLIGATION TO NEGOTIATE UNDER
SECTION 11(B) OF THE ORDER SINCE THE PROPOSAL WOULD MATERIALLY EFFECT
AND IS THEREBY INTEGRALLY RELATED TO THE NUMBERS OF EMPLOYEES ASSIGNED
TO INSPECTION FUNCTIONS BY THE AGENCY AND SINCE NO DIFFERENT RESULT
OBTAINS UNDER SECTION 11(B) SIMPLY BECAUSE THE PROJECT OR TOUR OF DUTY
IS PERFORMED IN AN OVERTIME STATUS. FINALLY, AS TO (3) AND (4), THE
COUNCIL, BASED ON ITS DECISION, AMONG OTHERS, IN THE GRIFFISS CASE, FLRC
NO. 71A-30, AND ITS CONCLUSION AS TO OVERTIME STATUS IN ITEM 2, ABOVE,
HELD THAT THE UNION'S PROPOSALS ARE OUTSIDE THE AGENCY'S OBLIGATION TO
BARGAIN UNDER SECTION 11(B) OF THE ORDER. ACCORDINGLY, THE AGENCY
HEAD'S DETERMINATIONS OF NONNEGOTIABILITY WERE SET ASIDE IN PART AND
SUSTAINED IN PART.
THE NEGOTIABILITY ISSUES IN THIS CASE AROSE DURING NATIONAL
NEGOTIATIONS OF A MULTI-UNIT AGREEMENT BETWEEN THE IMMIGRATION AND
NATURALIZATION SERVICE (INS) AND THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES (AFGE), COVERING BORDER PATROL AND OTHER IMMIGRATION AND
NATURALIZATION SERVICE PERSONNEL. SPECIFICALLY, THE DISPUTE INVOLVED
AFGE PROPOSALS (DETAILED HEREINAFTER) RELATING TO THE PROCESSING OF
GRIEVANCES OVER DISCIPLINARY ACTIONS (ARTICLE 10, SECTION K); STAFFING
RATIOS (ARTICLE 21, SECTION A); AND THE PROSCRIBED ASSIGNMENT OF
CERTAIN PERSONNEL FUNCTIONS (ARTICLE 21, SECTIONS B AND E).
UPON REFERRAL, THE DEPARTMENT OF JUSTICE DETERMINED THAT THE SUBJECT
UNION PROPOSALS WERE NONNEGOTIABLE UNDER THE ORDER. AFGE APPEALED TO
THE COUNCIL, DISAGREEING WITH THE AGENCY DETERMINATION; AND THE AGENCY
FILED A STATEMENT OF POSITION IN SUPPORT OF ITS DETERMINATION. /1/
THE UNION PROPOSALS IN DISPUTE WILL BE SEPARATELY CONSIDERED BELOW.
1. ARTICLE 10, SECTION K. THE UNION PROPOSAL READS AS FOLLOWS:
SECTION K. ALL DISCIPLINARY OR ADVERSE ACTIONS WILL BE PROCESSED IN
ACCORDANCE WITH
APPLICABLE CSC AND JUSTICE REGULATIONS AND EMPLOYEES SHALL BE
AFFORDED ALL RIGHTS AND
PRIVILEGES PROVIDED THEREIN.
THE AGENCY CONTENDS THAT THE PROPOSAL WOULD SUBJECT ADVERSE ACTIONS,
FOR WHICH STATUTORY APPEALS PROCEDURES EXIST, TO THE NEGOTIATED
GRIEVANCE PROCEDURE PROVIDED IN THE AGREEMENT, AND THAT THE PROPOSAL IS
THEREFORE NONNEGOTIABLE AS VIOLATIVE OF SECTION 13(A) OF THE ORDER. /2/
HOWEVER, THE UNION ASSERTS, IN EFFECT, THAT THE AGENCY HAS
MISINTERPRETED THE PROPOSAL IN QUESTION, AND THAT THE PROPOSAL MERELY
INTENDS THAT THE PROCESSING OF THOSE GRIEVANCES WHICH ARE SUBJECT TO THE
NEGOTIATED GRIEVANCE PROCEDURE SHALL CONFORM TO THE SAME PROCEDURAL
REQUIREMENTS AS PERTAIN TO ADVERSE ACTIONS. MORE PARTICULARLY, THE
UNION STATES:
IN THE FEDERAL SECTOR DISCIPLINE IS DIVIDED INTO TWO CATAGORIES
(SIC), THOSE ARE APPEALED
UNDER THE GRIEVANCE MACHINERY OF EITHER THE AGENCY'S PROCEDURE OR THE
NEGOTIATED PROCEDURE AND
THOSE DISCIPLINARY ACTIONS THAT ARE PROCESSED UNDER THE PROVISIONS OF
FPM CHAPTERS 751 AND 752
AND EXECUTIVE ORDER 10987. DISCIPLINE INCLUDING ORAL ADMONISHMENTS,
WRITTEN REPRIMANDS AND
SUSPENSIONS UP TO AND INCLUDING 30 DAYS ARE PROCESSED THROUGH THE
GRIEVANCE MACHINERY WHILE
SUSPENSIONS OF MORE THAN 30 DAYS, DISCHARGES AND REDUCTION IN RANK OR
GRADE ARE PROCESSED
THROUGH THE ADVERSE ACTION PROCEDURES OUTLINED IN FPM CHAPTER 752 . .
.
IN SECTION K THE UNION IS ATTEMPTING TO CONTRACTUALLY APPLY ALL THE
PROCEDURAL ASPECTS OF
THE CIVIL SERVICE COMMISSION AND JUSTICE DEPARTMENT REGULATIONS FOR
PROCESSING DISCIPLINARY
ACTIONS FOR BARGAINING UNIT EMPLOYEES WHEN THESE EMPLOYEES ARE
PROCESSING GRIEVANCES UNDER THE
PROVISIONS OF THE NEGOTIATED GRIEVANCE PROCEDURE . . . THESE WOULD
INCLUDE PRIOR NOTICE,
RIGHTS TO REPRESENTATION, TIME LIMITS AND ACCESS TO WITNESSES.
THE JUSTICE DEPARTMENT STATES THAT THE UNION'S PROPOSAL WOULD MAKE
ITS ACTIONS UNDER THE
STATUTORY PROCEDURES SUBJECT TO THE NEGOTIATED GRIEVANCE PROCEDURE.
THIS ALLEGATION CANNOT BE
SUBSTANTIATED. AS STATED ABOVE, THE PROCEDURES FOR APPEALING
DISCIPLINE ARE DIVIDED INTO TWO
CATAGORIES; AND THE UNION ADDRESSES ITSELF TO BOTH PROCEDURES IN
SECTION N. PARTS 1 AND 2 OF
SECTION N ARE THE PROCEDURES FOR APPEALING DISCIPLINARY ACTIONS OF
SUSPENSIONS OF 30 DAYS OR
LESS AND LETTERS OF REPRIMAND UNDER THE NEGOTIATED PROCEDURE. PART 3
OF SECTION N IS THE
PROCEDURE FOR PROCESSING DISCIPLINARY ACTIONS THAT ARE SUSPENSIONS OF
MORE THAN 30 DAYS,
DISCHARGE AND REDUCTION IN RANK OR GRADE . . . IN CONFORMITY WITH FPM
CHAPTER 752 AND
EXECUTIVE ORDER 10987.
WE FIND MERIT IN THE UNION'S CONTENTIONS THAT ITS PROPOSAL IS
NEGOTIABLE, IN THE CIRCUMSTANCES OF THIS CASE.
AS THE COUNCIL HELD IN THE ELMENDORF CASE, /3/ THE NATURE AND SCOPE
OF THE NEGOTIATED GRIEVANCE PROCEDURES ARE TO BE NEGOTIATED BY THE
PARTIES SUBJECT TO THE EXPLICIT LIMITATIONS PRESCRIBED IN THE ORDER.
WHILE THE AGENCY MAINTAINS THAT THE UNION'S PROPOSAL FALLS WITHIN SUCH
AN EXPLICIT LIMITATION IN SECTION 13(A) OF THE ORDER, NAMELY THE
PROSCRIBED COVERAGE UNDER THE NEGOTIATED GRIEVANCE PROCEDURE OF ADVERSE
ACTIONS WHICH ARE SUBJECT TO STATUTORY APPEALS PROCEDURES, WE CANNOT
AGREE WITH THIS POSITION. FOR IT IS APPARENT, FROM THE CONTEXT OF THE
PROPOSAL AND FROM THE UNION'S EXPRESSED INTENT AS TO THE MEANING OF ITS
OWN PROPOSAL (AND AS WE THEREFORE SO CONSTRUE THE PROPOSAL FOR PURPOSES
OF THIS DECISION), /4/ THAT GRIEVANCES UNDER THE NEGOTIATED GRIEVANCE
PROCEDURE WILL BE PROCESSED IN ACCORDANCE WITH THE PROCEDURAL
REQUIREMENTS CONTAINED IN CSC AND JUSTICE REGULATIONS GOVERNING THE
PROCESSING OF ADVERSE ACTIONS; HOWEVER, NO MATTER FOR WHICH STATUTORY
APPEALS PROCEDURES EXIST, INCLUDING ADVERSE ACTIONS, WOULD THEREBY BE
COVERED BY THE NEGOTIATED GRIEVANCE PROCEDURE.
MOREOVER, ANY AMBIGUITY IN THE UNION'S PROPOSAL MUST BE CONSIDERED IN
THE LIGHT OF OTHER PROVISIONS OF THE ORDER. AS WE RECENTLY NOTED IN
THIS REGARD IN THE LOUISVILLE NAVAL ORDNANCE CASE: /5/
. . . UNDER SECTION 12(A) OF THE ORDER, THE PROVISIONS OF WHICH MUST
BE BE INCLUDED IN
EVERY AGREEMENT, THE ADMINISTRATION OF ANY AGREEMENT ENTERED INTO BY
THE PARTIES WOULD BE
SUBJECT TO EXISTING OR FUTURE LAWS AND REGULATIONS OF APPROPRIATE
AUTHORITIES, WHICH WOULD
PRECLUDE COVERAGE UNDER THE NEGOTIATED GRIEVANCE PROCEDURE OF MATTERS
COVERED BY PRESENT OR
FUTURE STATUTORY APPEALS PROCEDURES. ADDITIONALLY, AS TO ANY
QUESTIONS WHICH MIGHT ARISE
CONCERNING WHETHER A GRIEVANCE IS PROPERLY SUBJECT TO THE NEGOTIATED
GRIEVANCE PROCEDURE OR IS
EXCEPTED BY REASON OF A STATUTORY APPEALS PROCEDURE, THE COUNCIL
INDICATED IN THE ELMENDORF
DECISION (AT P. 6):
THE ASSISTANT SECRETARY OF LABOR IS AUTHORIZED TO DECIDE . . .
QUESTIONS OF GRIEVABILITY
SUBJECT TO APPELLATE REVIEW BY THE COUNCIL. IN ADDITION, THE COUNCIL
MAY REVIEW ARBITRATION
AWARDS AND SET ASIDE AWARDS WHICH IT FINDS TO BE IN VIOLATION OF
APPLICABLE LAWS, APPROPRIATE
REGULATION, OR THE ORDER. (FOOTNOTES OMITTED.)
ACCORDINGLY, WE OVERRULE THE AGENCY'S DETERMINATION THAT ARTICLE 10,
SECTION K, AS PROPOSED BY THE UNION IS NONNEGOTIABLE.
2. ARTICLE 21, SECTION A. THIS PROPOSAL OF THE UNION READS AS
FOLLOWS (UNDERSCORING INDICATES PROVISIONS IN DISPUTE):
OVERTIME, NIGHT, SUNDAY AND HOLIDAY ASSIGNMENTS WITHIN A STATION, AND
WITHIN THE EMPLOYEES
REGULARLY ASSIGNED DUTIES WILL BE DISTRIBUTED EQUITABLY AMONG THOSE
EMPLOYEES QUALIFIED TO
PERFORM THE WORK. FOR THIS PURPOSE 'EQUITABLE DISTRIBUTION' SHALL
MEAN EQUAL PERIODS (1/2
DAY = 1 PERIOD) OF OVERTIME FOR ALL PARTICIPATING EMPLOYEES COMPUTED
BY THE DAY. TO ASSURE
IMPLEMENTATION OF THIS SECTION AT SEA AND AIRPORTS THE AGENCY AGREES
TO THE FOLLOWING STAFFING
RATIOS: ALL CITIZEN PASSENGERS-- 1 INSPECTOR TO 40 PASSENGERS;
ALIEN AND CITIZEN PASSENGERS--
1 INSPECTOR TO 30 PASSENGERS; ALL ALIEN PASSENGERS-- 1 INSPECTOR TO
20
PASSENGERS. SUPERVISORS SHALL NOT ASSIGN PREMIUM WORK AS A REWARD OR
PENALTY BUT SOLELY IN
ACCORDANCE WITH THE AGENCY'S NEED. COMPLAINTS OR DISAGREEMENTS ON
THE DISTRIBUTION OF PREMIUM
WORK SHALL BE PROCESSED IN ACCORDANCE WITH THE NEGOTIATED GRIEVANCE
PROCEDURE.
THE AGENCY ASSERTS THAT THE UNION'S PROPOSAL WOULD ESTABLISH THE
NUMBER OF INSPECTORS TO BE CALLED OUT FOR OVERTIME INSPECTION
ASSIGNMENTS, BASED ON THE NUMBERS AND TYPES OF PASSENGERS TO BE
INSPECTED, AND THEREFORE CONCERNS THE AGENCY'S STAFFING PATTERNS WHICH
ARE OUTSIDE THE AGENCY'S OBLIGATION TO NEGOTIATE UNDER SECTION 11(B) OF
THE ORDER. /6/
THE UNION DENIES THAT ITS PROPOSAL IMPACTS ON STAFFING BY THE AGENCY.
RATHER, ACCORDING TO THE UNION, THE LANGUAGE IN DISPUTE MERELY RELATES
TO PRODUCTION STANDARDS UNDER WHICH INSPECTORS PERFORM THEIR DUTIES
WHILE IN AN OVERTIME STATUS AND IS NOT AN ATTEMPT TO INCREASE STAFFING
BY THE AGENCY, SINCE IT INVOLVES ONLY EMPLOYEES ASSIGNED TO OVERTIME
WORK.
WE CANNOT AGREE WITH THE POSITION OF THE UNION. IT IS OBVIOUS THAT
THE RATIOS OF INSPECTORS TO PASSENGERS SOUGHT TO BE ESTABLISHED IN THE
UNION'S PROPOSAL WOULD MATERIALLY EFFECT, AND ARE THEREBY INTEGRALLY
RELATED TO, THE NUMBERS OF EMPLOYEES ASSIGNED TO SEA AND AIRPORT
INSPECTION FUNCTIONS BY THE AGENCY. SECTION 11 (B) OF THE ORDER
EXPRESSLY PROVIDES THAT THE NUMBERS OF EMPLOYEES SO ASSIGNED TO A WORK
PROJECT OR TOUR OF DUTY ARE OUTSIDE THE AGENCY'S OBLIGATION TO BARGAIN.
AND, AS THE COUNCIL HELD IN THE CHARLESTON NAVAL SHIPYARD CASE, A
PROPOSAL WHICH "IS INTEGRALLY RELATED TO THE NUMBERS OF EMPLOYEES THAT
THE ACTIVITY MIGHT ASSIGN TO PARTICULAR TOURS OF DUTY" FALLS WITHIN THE
MEANING OF SECTION 11(B). /7/
CONTRARY TO THE UNION'S CONTENTIONS, NOTHING IN SECTION 11(B), ITS
"LEGISLATIVE HISTORY," OR THE COUNCIL'S DECISIONS THEREON, REQUIRES THAT
ANY DIFFERENT RESULT OBTAIN SIMPLY BECAUSE THE PROJECT OR TOUR OF DUTY
IS PERFORMED IN AN OVERTIME STATUS, INSTEAD OF DURING NORMAL WORKING
HOURS.
WE THEREFORE FIND THAT THE DISPUTED PROVISIONS IN ARTICLE 21, SECTION
A, OF THE UNION'S PROPOSAL ARE EXCLUDED FROM THE AGENCY'S OBLIGATION TO
BARGAIN UNDER SECTION 11(B) OF THE ORDER.
3. ARTICLE 21, SECTION B. THIS SECTION, AS PROPOSED BY THE UNION,
PROVIDES:
THE AGENCY AGREES TO CONTINUE ITS CURRENT POLICY OF NOT USING BORDER
PATROL AGENTS ON ALIEN
BUS MOVEMENTS WHEN DETENTION GUARDS ARE READILY AVAILABLE.
THE AGENCY CONTENDS, AMONG OTHER THINGS, THAT THE PROPOSAL CONCERNS
THE ASSIGNMENT OF SPECIFIC DUTIES TO ITS EMPLOYEES AND IS THEREFORE
OUTSIDE THE AGENCY'S OBLIGATION TO BARGAIN UNDER SECTION 11(B) OF THE
ORDER.
THE UNION ARGUES, HOWEVER, THAT ITS PROPOSAL RECOGNIZES THE AGENCY'S
AUTHORITY TO ASSIGN BORDER PATROL AGENTS TO ALIEN BUS MOVEMENTS AND
MERELY ESTABLISHES A "PROCEDURE" FOR MAKING SUCH OVERTIME ASSIGNMENT OF
DUTIES, NAMELY, WHEN DETENTION GUARDS ARE NOT READILY AVAILABLE, WHICH
PROCEDURE DOES NOT CONFLICT WITH SECTION 11(B). WE FIND THAT THE
UNION'S POSITION IS WITHOUT MERIT.
AS THE COUNCIL HELD IN THE GRIFFISS CASE, /8/ THE SPECIFIC DUTIES
ASSIGNED TO PARTICULAR POSITIONS OR EMPLOYEES, I.E. THE JOB CONTENT, ARE
"EXCLUDED FROM THE OBLIGATION TO BARGAIN UNDER THE WORDS 'ORGANIZATION'
AND 'NUMBERS, TYPES, AND GRADES OF POSITIONS OR EMPLOYEES ASSIGNED TO AN
ORGANIZATIONAL UNIT, WORK PROJECT OR TOUR OF DUTY' IN SECTION 11(B) OF
THE ORDER." SUCH EXCEPTIONS FROM THE OBLIGATION TO BARGAIN UNDER SECTION
11(B) APPLIES NOT ONLY TO A PROPOSAL WHICH WOULD TOTALLY PROSCRIBE THE
ASSIGNMENT OF SPECIFIC DUTIES TO PARTICULAR TYPES OF EMPLOYEES, BUT ALSO
TO A PROPOSAL WHICH, AS HERE, WOULD PREVENT THE AGENCY FROM ASSIGNING
SUCH DUTIES UNLESS CERTAIN CONDITIONS EXIST. /9/
WHILE, AS ALREADY MENTIONED, THE UNION CLAIMS THAT THE CONDITION
ATTACHED TO THE ASSIGNMENT OF ALIEN BUS DUTIES TO BORDER PATROL AGENTS
IS MERELY A "PROCEDURE" WHICH IS NEGOTIABLE, THE SUBJECT CONDITION
(NAMELY, WHEN DETENTION GUARDS ARE UNAVAILABLE) PLAINLY IMPOSES
LIMITATIONS ON WHICH TYPES OF POSITIONS OR EMPLOYEES WILL ACTUALLY
PERFORM THE DUTIES INVOLVED. SUCH A LIMITATION ON THE AGENCY'S RESERVED
AUTHORITY TO ASSIGN DUTIES FALLS OUTSIDE THE AGENCY'S OBLIGATION TO
BARGAIN UNDER SECTION 11(B), /10/ AND, AS DISCUSSED UNDER ITEM 2 ABOVE,
THIS CONCLUSION OBTAINS REGARDLESS OF WHETHER THE WORK INVOLVED IS
PERFORMED IN AN OVERTIME STATUS RATHER THAN DURING ORDINARY WORKING
HOURS.
OUR DECISION DOES NOT, OF COURSE, PRECLUDE NEGOTIATIONS BY THE
PARTIES ON THE POLICIES OR PROCEDURES TO BE APPLIED BY THE AGENCY IN THE
SELECTION OF INDIVIDUAL EMPLOYEES FOR ASSIGNMENT TO PARTICULAR SHIFTS OR
TO OVERTIME STATUS. /11/ WE HERE DECIDE ONLY THAT THE UNION PROPOSAL
WHICH WOULD CONSTRICT THE AGENCY'S ASSIGNMENT OF SPECIFIC DUTIES TO
PARTICULAR TYPES OF POSITIONS OR EMPLOYEES IS EXCEPTED FROM THE AGENCY'S
OBLIGATION TO BARGAIN UNDER SECTION 11(B) OF THE ORDER. /12/
ACCORDINGLY, WE AGREE WITH THE AGENCY THAT THE UNION'S PROPOSAL IS
NONNEGOTIABLE.
4. ARTICLE 21, SECTION E. THE FINAL UNION PROPOSAL IN DISPUTE READS
AS FOLLOWS:
IMMIGRATION OFFICERS AND EMPLOYEES OF THE IMMIGRATION AND
NATURALIZATION SERVICE WHO
PERFORM ON AN OVERTIME BASIS INSPECTIONS OF PERSONS AND VEHICLES
ENTERING THE UNITED STATES
WILL NOT BE REQUIRED TO PERFORM NON-INSPECTIONAL DUTIES INCLUDING,
BUT NOT LIMITED TO, THE
ADJUDICATION OF VARIOUS I&NS PETITIONS AND APPLICATIONS, OR CLERICAL
AND CUSTODIAL TYPE
DUTIES. THE WORK HOURS OF IMMIGRATION INSPECTORS AND EMPLOYEES OF
I&NS ON SUNDAYS OR HOLIDAYS
SHALL COMMENCE WITH THE FIRST ANTICIPATED ENTRY, OR ARRIVAL, OF A
PERSON OR VEHICLE AND
CONTINUE FOR NOT MORE THAN EIGHT CONTINUOUS HOURS IF ANTICIPATED
INSPECTIONS ARE CONTINUOUS.
THE AGENCY ASSERTS, IN THE MAIN, THAT THE UNION'S PROPOSAL, WHICH
SEEKS TO PROSCRIBE THE ASSIGNMENT OF NONINSPECTION DUTIES TO IMMIGRATION
INSPECTORS PARTICULARLY WHEN THEY ARE PERFORMING SUNDAY AND HOLIDAY
WORK, RELATES TO THE JOB CONTENT OF THE INSPECTORS AND IS THEREFORE
OUTSIDE THE AGENCY'S BARGAINING OBLIGATION UNDER SECTION 11(B) OF THE
ORDER.
THE UNION CONTENDS THAT THE PROPOSAL IS MERELY A "PROCEDURE" FOR
ASSIGNING EMPLOYEES TO OVERTIME, POINTING IN THIS REGARD TO SPECIAL
STATUTORY PROVISIONS (8 U.S.C. 1353A) FOR THE PAYMENT OF OVERTIME TO
I&NS PERSONNEL WHO PERFORM INSPECTION DUTIES ON A SUNDAY OR HOLIDAY,
/13/ AND TO THE INELIGIBILITY OF SUCH EMPLOYEES FOR ADDITIONAL OVERTIME
PAY, ON THOSE DAYS, FOR NONINSPECTION DUTIES PERFORMED ALONG WITH THE
INSPECTION DUTIES. /14/ ACCORDING TO THE UNION, IT "SHOULD BE ABLE TO
NEGOTIATE THAT EMPLOYEES WHO ARE CALLED IN TO PERFORM WORK UNDER THE
PROVISIONS OF ONE LAW SHOULD BE LIMITED TO PERFORM ONLY THAT WORK THAT
IS COMPENSATED UNDER THAT LAW." WE CANNOT AGREE WITH THE JNION'S
POSITION.
THE UNION DOES NOT DENY THAT THE AGENCY, CONSISTENT WITH THE STATUTE
RELIED UPON BY THE UNION (8 U.S.C. 1353A), MAY PROPERLY ASSIGN
NONINSPECTION DUTIES TO I&NS PERSONNEL CALLED IN FOR INSPECTION WORK ON
SUNDAYS OR HOLIDAYS. INDEED, AS THE COMPTROLLER GENERAL SPECIFICALLY
RULED, "THE MATTER OF WHETHER INSPECTORS SHOULD BE REQUIRED ON SUNDAYS
OR HOLIDAYS TO PERFORM DUTIES NOT DIRECTLY CONNECTED WITH THE PARTICULAR
INSPECTIONS FOR WHICH THEY WERE SUMMONED IS FOR DETERMINATION BY THE
IMMIGRATION AND NATURALIZATION SERVICE." /15/
SINCE THE AGENCY MAY PROPERLY ASSIGN NONINSPECTION DUTIES TO I&NS
PERSONNEL WHO ARE CALLED IN TO PERFORM INSPECTION DUTIES ON AN OVERTIME
BASIS, THE UNION'S PROPOSAL WHICH WOULD PROSCRIBE SUCH ASSIGNMENT OF
DUTIES CLEARLY CONCERNS THE JOB CONTENT OF THE EMPLOYEES INVOLVED AND,
FOR THE REASONS ALREADY SET FORTH UNDER ITEM 3, ABOVE, IS EXCEPTED FROM
THE AGENCY'S OBLIGATION TO BARGAIN UNDER SECTION 11(B) OF THE ORDER.
WE THEREFORE SUSTAIN THE AGENCY'S DETERMINATION OF THE
NONNEGOTIABILITY OF THE UNION'S PROPOSED ARTICLE 21, SECTION E.
FOR THE REASONS DISCUSSED ABOVE AND PURSUANT TO SECTION 2411.27 OF
THE COUNCIL'S RULES AND REGULATIONS, WE FIND THAT:
1. THE AGENCY HEAD'S DETERMINATION AS TO THE NONNEGOTIABILITY OF
ARTICLE 21, SECTIONS A, B, AND E, WAS VALID AND MUST BE SUSTAINED; AND
2. THE AGENCY HEAD'S DETERMINATION AS TO THE NONNEGOTIABILITY OF
ARTICLE 10, SECTION K, WAS IMPROPER AND MUST BE SET ASIDE. THIS
DECISION SHALL NOT BE CONSTRUED AS EXPRESSING OR IMPLYING ANY OPINION OF
THE COUNCIL AS TO THE MERITS OF THE UNION'S PROPOSAL. WE DECIDE ONLY
THAT, AS SUBMITTED BY THE UNION AND BASED ON THE RECORD BEFORE THE
COUNCIL, THE PROPOSAL IS PROPERLY SUBJECT TO NEGOTIATION BY THE PARTIES
CONCERNED UNDER SECTION 11(A) OF THE ORDER.
BY THE COUNCIL.
ISSUED: SEPTEMBER 30, 1974
/1/ THE UNION'S APPEAL INITIALLY COVERED A SUBSTANTIAL NUMBER OF
OTHER PROPOSALS, BUT THE NEGOTIABILITY ISSUES RELATING TO THOSE
PROPOSALS WERE RESOLVED BY THE PARTIES AND ARE NO LONGER BEFORE THE
COUNCIL FOR DECISION IN THIS CASE.
/2/ SECTION 13(A) OF THE ORDER PROVIDES IN RELEVANT PART:
SEC. 13. GRIEVANCE AND ARBITRATION PROCEDURES. (A) AN AGREEMENT
BETWEEN AN AGENCY AND A LABOR ORGANIZATION SHALL PROVIDE A PROCEDURE,
APPLICABLE ONLY TO THE UNIT, FOR THE CONSIDERATION OF GRIEVANCES OVER
THE INTERPRETATION OR APPLICATION OF THE AGREEMENT. A NEGOTIATED
GRIEVANCE PROCEDURE MAY NOT COVER ANY OTHER MATTERS, INCLUDING MATTERS
FOR WHICH STATUTORY APPEALS PROCEDURES EXIST . . .
/3/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1668 AND
ELMENDORF AIR FORCE BASE (WILDWOOD AIR FORCE STATION), ALASKA, FLRC NO.
72A-10 (MAY 15, 1973), REPORT NO. 38.
/4/ SEE AFGE LOCAL 1923 AND SOCIAL SECURITY ADMINISTRATION
HEADQUARTERS BUREAUS AND OFFICES, BALTIMORE, MARYLAND, FLRC NO. 71A-22
(MAY 23, 1973), REPORT NO. 39, AT PP. 6-7 OF DECISION.
/5/ LOCAL LODGE 830, INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, AND LOUISVILLE NAVAL ORDNANCE STATION, DEPARTMENT OF
THE NAVY, FLRC NO. 73A-21 (JANUARY 31, 1974), REPORT NO. 48, AT P. 8 OF
DECISION.
/6/ SECTION 11(B) OF THE ORDER PROVIDES IN PERTINENT PART:
. . . THE OBLIGATION TO MEET AND CONFER DOES NOT INCLUDE MATTERS WITH
RESPECT TO THE
MISSION OF AN AGENCY; ITS BUDGET; ITS ORGANIZATION; THE NUMBER OF
EMPLOYEES; AND THE NUMBERS,
TYPES, AND GRADES OF POSITIONS OR EMPLOYEES ASSIGNED TO AN
ORGANIZATIONAL UNIT, WORK PROJECT
OR TOUR OF DUTY; THE TECHNOLOGY OF PERFORMING ITS WORK; OR ITS
INTERNAL SECURITY PRACTICES
. . .
/7/ FEDERAL EMPLOYEES METAL TRADES COUNCIL OF CHARLESTON, AFL-CIO AND
CHARLESTON NAVAL SHIPYARD, CHARLESTON, SOUTH CAROLINA, FLRC NO. 72A-35
(JUNE 29, 1973), REPORT NO. 41, AT P. 5 OF DECISION.
/8/ INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL F-111, AND
GRIFFISS AIR FORCE BASE, ROME, N.Y., FLRC NO. 71A-30 (APRIL 19, 1973),
REPORT NO. 36, AT P. 10 OF DECISION.
/9/ SEE, E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1966
AND VETERANS ADMINISTRATION HOSPITAL, LEBANON, PENNSYLVANIA, FLRC NO.
72A-41 (DECEMBER 12, 1973), REPORT NO. 46, AT PP. 8-9 OF DECISION. IN
THAT CASE, THE COUNCIL HELD THAT A PROPOSAL WHICH WOULD PROHIBIT THE
ASSIGNMENT OF AUTOPSY DUTIES TO STAFF PHYSICIANS "WHEN THERE IS A
PATHOLOGIST EMPLOYED BY THE HOSPITAL" IS EXCEPTED FROM THE AGENCY'S
OBLIGATION TO BARGAIN UNDER SECTION 11(B) OF THE ORDER.
/10/ CF. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 997 AND
VETERANS ADMINISTRATION HOSPITAL, MONTGOMERY, ALABAMA, FLRC NO. 73A-22
(JANUARY 31, 1974), REPORT NO. 48, AT PP. 1-4 OF DECISION.
/11/ SEE REPORT ACCOMPANYING E.O. 11491, SECTION E.1,
LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1971), AT P. 42.
/12/ IN ITS APPEAL, THE UNION ALSO ADVERTED TO THE FACT THAT THE
PROPOSAL IN QUESTION HAD BEEN CONTAINED IN A PRIOR AGREEMENT WITH THE
AGENCY. HOWEVER, AS THE COUNCIL HAS REPEATEDLY HELD, SUCH CIRCUMSTANCE
IS WITHOUT CONTROLLING SIGNIFICANCE. SEE, E.G., INTERNATIONAL
ASSOCIATION OF FIRE FIGHTERS, LOCAL F-111, AND GRIFFISS AIR FORCE BASE,
ROME, N.Y., FOOTNOTE 8, SUPRA, AT P. 11 OF DECISION.
/13/ 8 U.S.C. 1353A PROVIDES IN PERTINENT PART:
THE ATTORNEY GENERAL SHALL FIX A REASONABLE RATE OF EXTRA
COMPENSATION FOR OVERTIME
SERVICES OF IMMIGRATION OFFICERS AND EMPLOYEES OF THE IMMIGRATION AND
NATURALIZATION SERVICE
WHO MAY BE REQUIRED TO REMAIN ON DUTY . . . ON SUNDAYS OR HOLIDAYS,
TO PERFORM DUTIES IN
CONNECTION WITH THE EXAMINATION AND LANDING OF PASSENGERS AND CREWS
OF STEAMSHIPS, TRAINS,
AIRPLANES, OR OTHER VEHICLES, ARRIVING IN THE UNITED STATES FROM A
FOREIGN PORT BY WATER,
LAND, OR AIR, SUCH RATES TO BE FIXED ON A BASIS OF . . . TWO
ADDITIONAL DAYS' PAY FOR SUNDAY
AND HOLIDAY DUTY . . .
/14/ THE COMPTROLLER GENERAL, IN B-171621 DATED AUGUST 2, 1971, RULED
THAT I&NS PERSONNEL RECEIVING SPECIAL OVERTIME COMPENSATION UNDER 8
U.S.C. 1353A FOR INSPECTION WORK WOULD NOT BE ENTITLED, IN ADDITION, TO
REGULAR OVERTIME PAY, UNDER OTHER STATUTORY AUTHORITY SUCH AS 5 U.S.C.
5542, WHEN PERFORMING NONINSPECTION DUTIES IN THE SAME TIME FRAME.
/15/ IBID, AT P. 3 OF DECISION.
2 FLRC 200; FLRC NO. 73A-51; SEPTEMBER 24, 1974.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2449
AND
HEADQUARTERS, DEFENSE SUPPLY AGENCY
AND DSA FIELD ACTIVITIES
CAMERON STATION
ALEXANDRIA, VIRGINIA
(SYNOPSIS) FLRC NO. 73A-51
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2449 AND
HEADQUARTERS, DEFENSE SUPPLY ANNEX AND DSA FIELD ACTIVITIES, CAMERON
STATION, ALEXANDRIA, VIRGINIA (JAFFEE, ARBITRATOR). THE COUNCIL
ACCEPTED THE AGENCY'S PETITION FOR REVIEW IN THIS CASE, WHICH DISPUTED
THE LEGALITY OF THE ARBITRATOR'S AWARD OF RETROACTIVE PROMOTION OF THE
GRIEVANT TO GS-13, STEP 10, WITH BACKPAY (REPORT NO. 47).
COUNCIL ACTION (SEPTEMBER 24, 1974). BASED ON THE ADVICE OF THE
CIVIL SERVICE COMMISSION, WHICH AGENCY IS AUTHORIZED TO PRESCRIBE
REGULATIONS TO IMPLEMENT THE STATUTES HERE INVOLVED, THE COUNCIL DECIDED
THAT THE ARBITRATOR'S AWARD, INSOFAR AS IT DIRECTS THE RETROACTIVE
PROMOTION OF THE GRIEVANT TO GS-13, STEP 10, WITH BACKPAY, VIOLATES
APPLICABLE LAW AND APPROPRIATE REGULATIONS. THEREFORE, PURSUANT TO
SECTION 2411.37(B) OF THE COUNCIL'S RULES OF PROCEDURE (5 CFR
2411.37(B)), THE COUNCIL MODIFIED THE AWARD CONSISTENT WITH ITS
DECISION.
BASED ON THE ENTIRE RECORD IN THE CASE, THE CIRCUMSTANCES OF THE CASE
APPEAR AS FOLLOWS:
IN MAY, 1969, RUSSELL D. MIKEL, MANAGEMENT TECHNICIAN, GS-12, APPLIED
FOR EACH OF TWO GS-13 POSITIONS, BUT WAS FOUND NOT TO MEET THE
ELIGIBILITY REQUIREMENTS. AS TO ONE OF THESE POSITIONS, THE AGENCY
CONCEDED THAT MIKEL HAD NOT BEEN REFERRED TO THE SELECTING OFFICIAL AND,
HENCE, HAD BEEN DENIED AN OPPORTUNITY FOR CONSIDERATION IN COMPETITION
WITH OTHER QUALIFIED CANDIDATES. MIKEL FILED A GRIEVANCE AND, AS
CORRECTIVE ACTION, THE AGENCY DIRECTED THAT MIKEL BE GIVEN "PRIORITY
CONSIDERATION" /1/ FOR THE NEXT POSITION FOR WHICH HE WAS QUALIFIED.
SUBSEQUENTLY, MIKEL WAS CONSIDERED FOR ANOTHER GS-13 VACANCY; HOWEVER,
HE WAS NOT CONSIDERED BY THE SELECTING OFFICIAL BECAUSE HE HAD NOT BEEN
RANKED AMONG THE BEST QUALIFIED. MIKEL GRIEVED, AND THE AGENCY AGREED
WITH MIKEL THAT SINCE THE PROMOTION PANEL DID NOT RANK MIKEL AMONG THE
BEST QUALIFIED, INDEED "PRIORITY CONSIDERATION" WAS NOT AFFORDED FOR
THIS PARTICULAR VACANCY. ON JANUARY 30, 1970, THE AGENCY DIRECTED THAT
MIKEL RECEIVE "PRIORITY CONSIDERATION" FOR THE FIRST TWO VACANCIES FOR
WHICH HE WAS BASICALLY QUALIFIED.
ON FEBRUARY 5, 1973, MIKEL FILED A GRIEVANCE GROUNDED, AS THE
ARBITRATOR CONCLUDED, ON TWO BASIC CLAIMS: (1) THAT HIS POSITION HAD
BEEN INCORRECTLY CLASSIFIED, AND (2) THAT HE HAD NOT BEEN ACCORDED
"PRIORITY CONSIDERATION" FOR A PROMOTION. THE GRIEVANCE WAS SUBMITTED
TO ARBITRATION.
THE ARBITRATOR DETERMINED IN HIS OPINION THAT THE SECOND CLAIM IN THE
MIKEL GRIEVANCE, RELATING TO "PRIORITY CONSIDERATION," WAS ARBITRABLE,
BUT THE FIRST CLAIM WAS NOT. /2/ AS TO THE MERITS OF THE SECOND CLAIM,
THE ARBITRATOR DETERMINED THAT THE AGENCY ON SEVERAL OCCASIONS HAD NOT
ACCORDED MIKEL "PRIORITY CONSIDERATION" FOR PROMOTION REQUIRED BY PART
II, ARTICLE Q, SECTION 10, OF THE AGREEMENT AND THAT, HAD HE BEEN
ACCORDED SUCH CONSIDERATION, MIKEL WOULD HAVE BEEN PROMOTED TO SEVERAL
OF THE GS-13 POSITIONS HE SOUGHT. AS HIS AWARD, THE ARBITRATOR DIRECTED
THAT MIKEL BE "UPGRADED" TO GS-13, STEP 10, RETROACTIVE TO JULY 1, 1969,
AND BE MADE WHOLE ACCORDINGLY. THE ARBITRATOR FURTHER DIRECTED THAT
"ANY LATER ACTION BY WAY OF PROMOTION" BE IN CONFORMANCE WITH ALL LEGAL
REQUIREMENTS, AND THAT ANY DISPUTE BETWEEN THE PARTIES AS TO COMPLIANCE
WITH THE AWARD WOULD BE SUBJECT TO TERMINAL ARBITRATION.
THE AGENCY DISPUTED THE LEGALITY OF THE AWARD AS TO (1) BACKPAY TO
JULY 1, 1969, AND (2) STARTING MIKEL AT GS-13, STEP 10, ON THAT DATE.
/3/ THE AGENCY REQUESTED TERMINAL ARBITRATION OF THIS DISPUTE, AND THE
MATTER WAS SUBMITTED TO THE ARBITRATOR. THE ARBITRATOR ISSUED A
SUPPLEMENTAL AWARD IN WHICH HE DETERMINED THAT (1) AN AWARD THAT GRANTS
BACKPAY IN SUCH MATTERS IS LEGAL, AND (2) THAT THE REMEDY OF STARTING
MIKEL AT GS-13, STEP 10, AS OF JULY 1, 1969, IS LEGAL. ACCORDINGLY, THE
ARBITRATOR REAFFIRMED HIS EARLIER AWARD.
THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD, AS
REAFFIRMED BY HIS SUPPLEMENTAL AWARD, WITH THE COUNCIL, ALLEGING (1)
THAT THE AWARD OF RETROACTIVE PROMOTION WITH BACKPAY TO JULY 1, 1969,
WOULD VIOLATE THE BACK PAY ACT (5 U.S.C. 5596) AS IMPLEMENTED BY CIVIL
SERVICE COMMISSION REGULATIONS AND AS INTERPRETED BY THE COMPTROLLER
GENERAL, AND (2) THE AWARD OF THE PROMOTION TO GS-13, STEP 10, WOULD
VIOLATE THE LAW APPLICABLE TO THE FIXING OF PAY ON PROMOTION (5 U.S.C.
5334(B)). THE COUNCIL ACCEPTED THE AGENCY'S PETITION FOR REVIEW ON
THESE ISSUES. THE COUNCIL ALSO GRANTED THE AGENCY'S REQUEST FOR A STAY
PENDING THE COUNCIL'S DETERMINATION OF THE INSTANT APPEAL. THE UNION
FILED A BRIEF AND THE AGENCY RELIED ON ITS BRIEF PREVIOUSLY FILED IN
SUPPORT OF THE PETITION FOR REVIEW.
SECTION 2411.37(A) OF THE COUNCIL'S RULES OF PROCEDURE PROVIDES, IN
PERTINENT PART, THAT "AN AWARD OF AN ARBITRATOR SHALL BE MODIFIED, SET
ASIDE IN WHOLE OR IN PART, OR REMANDED . . . ON THE GROUNDS THAT THE
AWARD VIOLATES APPLICABLE LAW, APPROPRIATE REGULATION . . . "
AS PREVIOUSLY STATED, THE AGENCY CONTENDS THAT THE ARBITRATOR'S AWARD
OF RETROACTIVE PROMOTION WITH BACKPAY TO JULY 1, 1969, WOULD VIOLATE THE
BACK PAY ACT (5 U.S.C. 5596) AS IMPLEMENTED BY CIVIL SERVICE COMMISSION
REGULATIONS AND AS INTERPRETED BY THE COMPTROLLER GENERAL, AND THAT HIS
AWARD OF THE PROMOTION TO GS-13, STEP 10, WOULD VIOLATE THE LAW
APPLICABLE TO THE FIXING OF PAY ON PROMOTION (5 U.S.C. 5334(B)). THE
CIVIL SERVICE COMMISSION IS AUTHORIZED TO PRESCRIBE REGULATIONS TO
IMPLEMENT THE STATUTES HERE INVOLVED. /4/ THEREFORE, THAT AGENCY WAS
REQUESTED, IN ACCORDANCE WITH COUNCIL PRACTICE, FOR AN INTERPRETATION OF
THE STATUTES AND THE IMPLEMENTING REGULATIONS OF THE CIVIL SERVICE
COMMISSION AS THEY PERTAIN TO THE QUESTIONS PRESENTED IN THE INSTANT
CASE.
THE COMMISSION REPLIED AS FOLLOWS:
THIS LETTER IS IN RESPONSE TO YOUR REQUEST OF JANUARY 24, 1974, FOR
AN INTERPRETATION OF 5
U.S.C. 5596 AND 5 U.S.C. 5334, AND THE IMPLEMENTING CIVIL SERVICE
COMMISSION REGULATIONS AS
THEY APPLY TO THE ARBITRATOR'S AWARD IN THE CASE OF THE AMERICAN
FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2449, AND HEADQUARTERS, DEFENSE SUPPLY AGENCY, AND
DSA FIELD ACTIVITIES,
CAMERON STATION, ALEXANDRIA, VIRGINIA, (JAFFEE, ARBITRATOR), FLRC NO.
73A-51.
THE ARBITRATOR FOUND THE AGENCY IN VIOLATION OF THE NEGOTIATED
AGREEMENT WHEN IT FAILED TO
GIVE THE GRIEVANT, RUSSELL D. MIKEL, PRIORITY CONSIDERATION FOR
PROMOTION. THE ARBITRATOR'S
AWARD DIRECTED THE AGENCY TO PROMOTE THE GRIEVANT TO GRADE GS-13, AND
FIX THE PAY AT STEP 10
OF THE GRADE, RETROACTIVELY TO JULY 1, 1969. YOUR LETTER STATES THAT
THE QUESTION IS WHETHER
THE AWARD VIOLATES 5 U.S.C. 5596, 5 U.S.C. 5334, AND THE IMPLEMENTING
CSC REGULATIONS.
IT HAS BEEN CONSISTENTLY HELD THAT AFTER ALL DISCRETIONARY ACTS THAT
ARE REQUIRED TO EFFECT
A PERSONNEL ACTION HAVE BEEN TAKEN, AND NOTHING REMAINS TO BE DONE
EXCEPT MINISTERIAL AND
NONDISCRETIONARY ACTS, THE PERSONNEL ACTION IS COMPLETED. IN OTHER
WORDS, THE APPOINTMENT
POWER IS EXHAUSTED WHEN THE LAST DISCRETIONARY ACT IS COMPLETED; THE
APPOINTMENT IS THEN
IRREVOCABLE, AND NOT SUBJECT TO RECONSIDERATION. (MARBURY V.
MADISON, (1803), 1 CRANCH
137; U.S. V. LE BARON, (1856), 19 HOW. 73; STATE EX REL COOGAN V.
BARBOUR, (1885), 22
A. 686; WITHERSPOON V. STATE, (1925), 103 S. 134; BOARD OF
EDUCATION V. MCCHESNEY, (1930), 32
SW2D 26; U.S. V. SMITH, (1932), 286 U.S. 6; STATE EX REL CALDERWOOD
V. MILLER, (1900), 57 NE
227; STATE EX REL JEWETT V. SATTI, (1947), 54 A.2D 272). HOWEVER,
IN THE INSTANT CASE, THERE
IS NO EVIDENCE THAT ALL DISCRETIONARY ACTS WERE COMPLETED.
TECHNICALLY, THE QUESTION IS NOT WHETHER THE AWARD VIOLATES 5 U.S.C.
5596, SINCE THERE WAS
NO "UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION TAKEN." SECTION
550,803(E) OF THE
COMMISSION'S REGULATIONS DEFINES PERSONNEL ACTION FOR THIS PURPOSE AS
BEING ANY ACTION BY AN
AUTHORIZED OFFICIAL OF AN AGENCY WHICH RESULTS IN THE WITHDRAWAL OR
DEDUCTION OF ALL OR ANY
PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS OF AN EMPLOYEE. THE
COMPTROLLER GENERAL, IN HIS
DECISION AT 48 COMP.GEN. 502, STATED "THAT A POSITIVE ADMINISTRATIVE
ACTION ADVERSE TO THE
EMPLOYEE MUST BE THE BASIS FOR BACK PAY RATHER THAN AN OMISSION OR
FAILURE TO TAKE ACTION FOR
AN IMPROPER REASON."
RATHER, THE QUESTION IS WHETHER THERE IS A BASIS FOR THE AGENCY TO
APPROVE A PROMOTION TO
BE EFFECTIVE RETROACTIVELY. THE COMPTROLLER GENERAL HAS RULED ON
NUMEROUS OCCASIONS THAT
PROMOTIONS MAY NOT BE MADE TO TAKE EFFECT RETROACTIVELY, EXCEPT IN
CASES WHERE ADMINISTRATIVE
ERROR, SUCH AS CLERICAL ERROR RESULTING IN THE DELAYED TYPING OF THE
PERSONNEL ACTION, A
PERSONNEL ACTION WAS NOT EFFECTED AS ORIGINALLY INTENDED. SEE 3
COMP. GEN. 559, CITED AT 45
ID. 99. ALSO, SEE B-178156, JUNE 5, 1973, WHICH WILL BE PUBLISHED IN
VOLUME 52 AT PAGE 631,
AND B-179833, JANUARY 4, 1974, WHICH WILL BE PUBLISHED IN VOLUME 53;
AND UNPUBLISHED DECISIONS
B-180046, APRIL 11, 1974; B-180056, MAY 28, 1974; AND B-179323, MAY
16, 1974.
THE COMPTROLLER GENERAL AND THE COURT OF CLAIMS HAVE REPEATEDLY RULED
THAT A FEDERAL
EMPLOYEE IS ONLY ENTITLED TO THE SALARY OF THE POSITION TO WHICH HE
HAS BEEN OFFICIALLY
APPOINTED. (B-178156, JUNE 5, 1973; TIERNEY V. UNITED STATES, 168
CT.CL. 77 (1964); NORDSTROM
V. UNITED STATES, 177 CT.CL. 818 (1966); BIELIC V. UNITED STATES,
197 CT.CL. 550, 560 (1973)).
THE COMPTROLLER GENERAL HAS ALSO RULED THAT A PERSONNEL ACTION MAY
NOT BE MADE
RETROACTIVELY EFFECTIVE SO AS TO INCREASE THE RIGHT OF AN EMPLOYEE TO
COMPENSATION. (SEE 39
COMP.GEN. 583 AND 40 ID. 207).
IN ITS SECOND EXCEPTION TO THE AWARD, THE AGENCY ALLEGED THAT IT MAY
NOT FIX PAY ON
PROMOTION AT A RATE WHICH IS NOT IN ACCORDANCE WITH LAW AND
REGULATION. IN THE INSTANT CASE,
THE PROPER STEP WOULD HAVE BEEN STEP 4, IF THE PROMOTION COULD HAVE
BEEN LEGALLY EFFECTED
RETROACTIVELY TO JULY 1, 1969; HOWEVER, NEITHER CITATION WOULD HAVE
PERMITTED THE AGENCY TO
FIX THE PAY AT THE STEP 10.
FOR THE REASONS SET FORTH ABOVE, THE ARBITRATOR'S AWARD IN THIS CASE
MAY NOT BE
IMPLEMENTED.
BASED ON THE FOREGOING RESPONSE BY THE CIVIL SERVICE COMMISSION, WE
FIND THAT THE ARBITRATOR'S AWARD, INSOFAR AS IT DIRECTS THE RETROACTIVE
PROMOTION OF THE GRIEVANT TO GS-13, STEP 10, WITH BACKPAY, VIOLATES
APPLICABLE LAW AND APPROPRIATE REGULATIONS. THEREFORE, THE SUBJECT
PORTIONS OF THE ARBITRATOR'S AWARD CANNOT BE PERMITTED TO STAND.
FOR THE FOREGOING REASONS, WE FIND THAT THE ARBITRATOR'S AWARD,
INSOFAR AS IT DIRECTED THAT THE GRIEVANT BE RETROACTIVELY PROMOTED TO
GS-13, STEP 10, TO JULY 1, 1969, WITH BACKPAY, VIOLATES APPLICABLE LAW
AND APPROPRIATE REGULATION. ACCORDINGLY, PURSUANT TO SECTION 2411.37(B)
OF THE COUNCIL'S RULES OF PROCEDURE, WE MODIFY THE AWARD OF THE
ARBITRATOR BY STRIKING THE FIRST SENTENCE THEREOF WHICH READS:
MIKEL IS TO BE UPGRADED TO THE GS-13 LEVEL, STEP 10, RETROACTIVE TO
JULY 1, 1969, AND BE
MADE WHOLE ACCORDINGLY.
AS SO MODIFIED, THE AWARD IS SUSTAINED AND THE STAY IS VACATED.
BY THE COUNCIL.
ISSUED: SEPTEMBER 24, 1974
/1/ "PRIORITY CONSIDERATION" AND THE TREATMENT OF EMPLOYEES ENTITLED
THERETO, ARE COVERED BY PART II, ARTICLE Q, SECTION 10, OF THE
COLLECTIVE BARGAINING AGREEMENT, WHICH PROVIDES:
SECTION 10. EMPLOYEES ENTITLED TO PRIORITY CONSIDERATION AS DEFINED
IN THE FPM WILL
RECEIVE SUCH CONSIDERATION INCLUDING A PERSONAL INTERVIEW PRIOR TO
OFFICIAL ANNOUNCEMENT
. . . OF THE VACANCY. NONSELECTION OF AN EMPLOYEE HAVING THE RIGHT
TO PRIORITY CONSIDERATION
MUST BE JUSTIFIED IN WRITING. AN EMPLOYEE WITH SUCH RIGHTS WHO IS
NONSELECTED SHALL
AUTOMATICALLY BE INCLUDED ON ALL PROMOTION REGISTERS FOR WHICH HE IS
QUALIFIED, DEVELOPED AS A
RESULT OF OFFICIAL ANNOUNCEMENT, AND WILL BE RATED AND RANKED BY THE
PANEL IN THE SAME MANNER
AS ALL OTHER APPLICANTS.
FPM CH. 335, SEC. 6-4C, PROVIDES:
C. ACTION INVOLVING NONSELECTED EMPLOYEES.
(2) IF THE CORRECTIVE ACTION DID NOT INCLUDE VACATING THE POSITION,
AN EMPLOYEE WHO WAS NOT
PROMOTED OR GIVEN PROPER CONSIDERATION BECAUSE OF THE VIOLATION IS TO
BE GIVEN PRIORITY
CONSIDERATION FOR THE NEXT APPROPRIATE VACANCY BEFORE CANDIDATES
UNDER A NEW PROMOTION OR
OTHER PLACEMENT ACTION ARE CONSIDERED. AN EMPLOYEE MAY BE SELECTED
ON THE BASIS OF THIS
CONSIDERATION AS AN EXCEPTION TO COMPETITIVE PROMOTION PROCEDURES
(SEE SECTION 4-3F).
/2/ THE ARBITRATOR DETERMINED THAT MIKEL'S FIRST CLAIM CONCERNING THE
CLASSIFICATION OF HIS POSITION WAS "BEYOND ARBITRAL JURISDICTION IN VIEW
OF THE PROCEDURES AVAILED OF BY MIKEL VIA HIS APPEALS TO THE CIVIL
SERVICE COMMISSION AND ITS DISPOSITION OF THE APPEALS."
/3/ THE AGENCY CONTENDS THAT, SINCE ON JULY 1, 1969, THE GRIEVANT WAS
A GS-12, STEP 7, THE PROPER GRADE AND STEP TO WHICH HE COULD BE PROMOTED
AT THAT TIME WAS GS-13, STEP 4. AFTER RECEIPT OF THE AWARD, THE AGENCY
PROMOTED MIKEL TO GS-13, STEP 5, EFFECTIVE JUNE 17, 1973.
/4/ 5 U.S.C. 5334 AND 5596(C).
2 FLRC 195; FLRC NO. 73A-46; SEPTEMBER 24, 1974.
NAVAL REWORK FACILITY, NAVAL AIR STATION,
JACKSONVILLE, FLORIDA
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R5-82
(SYNOPSIS) FLRC NO. 73A-46
NAVAL REWORK FACILITY, NAVAL AIR STATION, JACKSONVILLE, FLORIDA, AND
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R5-82 (GOODMAN,
ARBITRATOR). THE ARBITRATOR IN THIS CASE DETERMINED THAT THE AGENCY
VIOLATED THE COLLECTIVE BARGAINING AGREEMENT BY THE MANNER IN WHICH IT
SCHEDULED WORK TO AVOID OVERTIME; AND DIRECTED THAT THE AGENCY
COMPENSATE THE GRIEVANTS FOR THE FOUR HOURS ADDITIONAL PAY THEY WOULD
HAVE RECEIVED HAD THEY WORKED SUCH OVERTIME. THE COUNCIL ACCEPTED THE
AGENCY'S PETITION FOR REVIEW INSOFAR AS IT CHALLENGES THE LEGALITY OF
THE ADDITIONAL PAY FOR THE GRIEVANTS IN THE REMEDY PORTION OF THE AWARD
(REPORT NO. 45).
COUNCIL ACTION (SEPTEMBER 24, 1974). BASED ON THE ADVICE OF THE
CIVIL SERVICE COMMISSION, WHICH AGENCY IS AUTHORIZED UNDER 5 U.S.C. 5548
TO PRESCRIBE REGULATIONS TO IMPLEMENT STATUTORY PROVISIONS RELATING TO
PREMIUM PAY, INCLUDING HOLIDAY AND OVERTIME PAY, THE COUNCIL HELD THAT
THE REMEDY PORTION OF THE AWARD VIOLATES APPLICABLE LAW AND APPROPRIATE
REGULATION. ACCORDINGLY, PURSUANT TO SECTION 2411.37(B) OF THE
COUNCIL'S RULES (5 CFR 2411.37(B)), THE COUNCIL MODIFIED THE
ARBITRATOR'S AWARD BY STRIKING SO MUCH THEREOF AS DIRECTED THE PAYMENT
OF ADDITIONAL COMPENSATION TO THE GRIEVANTS.
THIS APPEAL AROSE BY REASON OF THE REMEDY AWARDED BY THE ARBITRATOR
AS A RESULT OF HIS FINDING THAT THE AGENCY HAD VIOLATED ARTICLE XII,
SECTION 4, OF THE PARTIES' NEGOTIATED AGREEMENT.
ARTICLE XII, SECTION 4, PROVIDES:
EMPLOYEES WILL BE REQUIRED TO WORK ON A HOLIDAY IF NECESSARY IN ORDER
TO EFFECTIVELY
ACCOMPLISH THE MISSION OF THE FACILITY; HOWEVER, SUCH HOLIDAY WORK
WILL NOT BE SCHEDULED TO
AVOID OVERTIME.
THE ARBITRATOR FOUND THAT EMPLOYEES OF CERTAIN REPAIR SHOPS AT THE
NAVAL AIR REWORK FACILITY HAD BEEN SCHEDULED TO WORK ON AN OVERTIME
BASIS ON SATURDAY, JANUARY 27, 1973, IN ADDITION TO THE NORMAL MONDAY
THROUGH FRIDAY WORKWEEK. DUE TO THE DEATH OF FORMER PRESIDENT LYNDON B.
JOHNSON, THE PRESIDENT DECLARED THURSDAY, JANUARY 25, A NATIONAL
HOLIDAY. /1/
FOLLOWING THE DESIGNATION OF THE NATIONAL HOLIDAY, 56 EMPLOYEES WERE
ORDERED TO WORK ON THE HOLIDAY (JANUARY 25) AND ONLY 28 ON THE FOLLOWING
SATURDAY (JANUARY 27).
THE UNION GRIEVED, CONTENDING THAT MANAGEMENT'S ACTION BY WORKING
CERTAIN EMPLOYEES ON THE HOLIDAY BUT NOT ON THE FOLLOWING SATURDAY WAS
IN VIOLATION OF ARTICLE XII, SECTION 4, OF THE AGREEMENT, WHICH, AS
ALREADY INDICATED, PROVIDES THAT "HOLIDAY WORK WILL NOT BE SCHEDULED TO
AVOID OVERTIME." THE ACTIVITY RESPONDED THAT 56 EMPLOYEES HAD BEEN
SCHEDULED TO WORK ON BOTH DATES, THAT ALL 56 WORKED ON THURSDAY AS
SCHEDULED, BUT THAT SATURDAY OVERTIME WORK FOR 28 OF THESE EMPLOYEES WAS
CANCELLED ON FRIDAY, JANUARY 26, BECAUSE OF MATERIEL SHORTAGES.
THE DISPUTE ULTIMATELY WENT TO ARBITRATION. THE ARBITRATOR FOUND
THAT WHILE "THERE DOES NOT APPEAR TO BE AN ABSOLUTELY CLEAR INDICATION
OF NAVY INTENT ON THIS MATTER . . . THE ACTS OF THE NAVY DID, IN FACT,
AVOID OVERTIME PAY." CONSEQUENTLY, HE SUSTAINED THE UNION'S GRIEVANCE.
AS A REMEDY, HE DIRECTED THAT, AS REQUESTED BY THE UNION, "ALL PERSONNEL
WHO WORKED ON THURSDAY, JANUARY 25, 1973, AND WERE NOT ALLOWED TO WORK
ON SATURDAY, JANUARY 27, 1973, ARE TO BE PAID FOR FOUR ADDITIONAL
HOURS." /2/
THE AGENCY FILED A PETITION FOR REVIEW OF THE REMEDY PORTION OF THE
ARBITRATOR'S AWARD. /3/ UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF
PROCEDURE, THE COUNCIL ACCEPTED THE PETITION FOR REVIEW OF ONE OF THE
AGENCY'S EXCEPTIONS, NAMELY, THAT THE ARBITRATOR'S AWARD, WHICH DIRECTS
COMPENSATION BE PAID TO EMPLOYEES FOR OVERTIME WHICH THEY HAD NOT
ACTUALLY WORKED, WOULD BE UNLAWFUL UNDER APPLICABLE PAY STATUTES AS
INTERPRETED (AND CITED) BY THE COMPTROLLER GENERAL. /4/ THE COUNCIL
ALSO GRANTED THE AGENCY'S REQUEST FOR A STAY PENDING THE COUNCIL'S
DETERMINATION OF THE INSTANT APPEAL.
THE UNION FILED A BRIEF; THE AGENCY RELIED ON THE REASONING SET
FORTH IN ITS PETITION FOR REVIEW.
SECTION 2411.37(A) OF THE COUNCIL'S RULES OF PROCEDURE PROVIDES, IN
PERTINENT PART, THAT "AN AWARD OF AN ARBITRATOR SHALL BE MODIFIED, SET
ASIDE IN WHOLE OR IN PART, OR REMANDED ONLY ON GROUNDS THAT THE AWARD
VIOLATES APPLICABLE LAW, APPROPRIATE REGULATION . . . "
THE QUESTION BEFORE THE COUNCIL IS WHETHER THE REMEDY PORTION OF THE
ARBITRATOR'S AWARD, WHICH GRANTS 4 HOURS PAY TO PERSONNEL WHO WORKED ON
THURSDAY AND WERE NOT ALLOWED TO WORK ON SATURDAY, TO COMPENSATE FOR THE
DIFFERENCE BETWEEN THE 48 HOURS PAY THEY RECEIVED FOR 40 HOURS OF WORK
(I.E., 5 DAYS OF WORK PLUS 8 HOURS HOLIDAY PAY AT STRAIGHT TIME) AND 52
HOURS PAY THEY WOULD HAVE RECEIVED FOR 40 HOURS OF WORK UNDER THE
CANCELLED SCHEDULE (I.E., 4 DAYS OF WORK AND 8 HOURS HOLIDAY PAY AT
STRAIGHT TIME, PLUS 8 HOURS OF WORK ON SATURDAY AT THE OVERTIME RATE OF
TIME AND ONE-HALF), VIOLATES APPLICABLE LAW OR IMPLEMENTING REGULATIONS.
SINCE THE UNITED STATES CIVIL SERVICE COMMISSION IS AUTHORIZED, UNDER
5 U.S.C. 5548, TO PRESCRIBE REGULATIONS TO IMPLEMENT STATUTORY
PROVISIONS RELATING TO PREMIUM PAY, INCLUDING HOLIDAY AND OVERTIME PAY,
THAT AGENCY WAS REQUESTED, IN ACCORDANCE WITH COUNCIL PRACTICE, FOR AN
INTERPRETATION OF THE RELEVANT STATUTES AND IMPLEMENTING CSC REGULATIONS
AS THEY PERTAIN TO THE ARBITRATOR'S AWARD OF OVERTIME PAY IN THIS CASE.
THE CIVIL SERVICE COMMISSION REPLIED IN RELEVANT PART AS FOLLOWS:
YOUR LETTER . . . REQUESTED AN INTERPRETATION OF CIVIL SERVICE
COMMISSION REGULATIONS AS
THEY RELATE TO THE ARBITRATION AWARD IN THE CASE OF NAVAL REWORK
FACILITY, NAVAL AIR STATION,
JACKSONVILLE, FLORIDA, AND NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R5-82 (GOODMAN,
ARBITRATOR), FLRC NO. 73A-46.
THE ARBITRATOR DETERMINED THAT THE AGENCY HAD AVOIDED OVERTIME PAY IN
VIOLATION OF THE
PROVISION OF THE AGREEMENT THAT "HOLIDAY WORK WILL NOT BE SCHEDULED
TO AVOID OVERTIME." AS A
REMEDY, THE ARBITRATOR AWARDED FOUR HOURS PAY TO ALL PERSONNEL WHO
WORKED ON A THURSDAY
HOLIDAY AND WERE NOT ALLOWED TO WORK THE FOLLOWING SATURDAY, TO
COMPENSATE FOR THE DIFFERENCE
BETWEEN THE PAY THEY WOULD HAVE RECEIVED HAD THEY WORKED ON THAT
SATURDAY INSTEAD OF THE
THURSDAY HOLIDAY AND THE PAY THEY RECEIVED FOR WORKING ON THE
THURSDAY HOLIDAY BUT NOT ON THE
FOLLOWING SATURDAY (AN OTHERWISE OVERTIME DAY).
THE COMPTROLLER GENERAL HAS CONSISTENTLY RULED THAT THE LANGUAGE OF
THE LAW (TITLE 5,
UNITED STATES CODE 5542, AND TITLE 5, USC 5544) AND CSC INSTRUCTIONS
(5 CFR 550.103, 550.111,
AND FPM SUPPLEMENT 532-1, S8-4B) IS INTERPRETED AS REQUIRING ACTUAL
PERFORMANCE OF WORK IN
ORDER TO BE ENTITLED TO OVERTIME PAY.
THE COMPTROLLER GENERAL DECISIONS CITED BY NAVY ARE ALL VALID
REFERENCES IN THAT THEY ALL
ESSENTIALLY SAY "NO WORK, NO PAY." THE DECISION FOUND IN 42 COMP.GEN.
195 WAS CITED IN THE
DECISION FOUND IN 46 ID. 217, (CITED BY NAVY), AND ALSO WAS AGAIN
CITED IN 47 ID. 359. THE
UNPUBLISHED DECISION, B-275867, JUNE 19, 1972, RELATES TO A SITUATION
WHERE A GRIEVING
EMPLOYEE WAS CLAIMING OVERTIME PAY AS THE RESULT OF A VIOLATION OF A
UNION CONTRACT, AND THE
COMPTROLLER GENERAL AGAIN RULED "NO WORK, NO PAY," IN SPITE OF THE
FACT THAT THE CONTRACT MAY
HAVE BEEN VIOLATED.
IN SUMMARY, THE AGENCY IS PREVENTED BY LAW, REGULATIONS, AND
INTERPRETATIONS THEREOF, FROM
IMPLEMENTING THE ARBITRATOR'S AWARD OF OVERTIME PAY.
BASED ON THE FOREGOING INTERPRETATION BY THE CIVIL SERVICE
COMMISSION, WE MUST CONCLUDE THAT THE REMEDY PORTION OF THE ARBITRATOR'S
AWARD IS IN VIOLATION OF APPLICABLE LAW AND APPROPRIATE REGULATION. WE
BELIEVE THAT THE AWARD MUST THEREFORE BE MODIFIED BY STRIKING THAT
PORTION AWARDING FOUR ADDITIONAL HOURS PAY TO THOSE EMPLOYEES WHO WORKED
ON THURSDAY, JANUARY 25, 1973, AND WERE NOT ALLOWED TO WORK ON SATURDAY,
JANUARY 27, 1973.
FOR THE FOREGOING REASONS, WE FIND THAT THE REMEDY PORTION OF THE
ARBITRATOR'S AWARD VIOLATES APPLICABLE LAW AND APPROPRIATE REGULATION.
ACCORDINGLY, PURSUANT TO SECTION 2411.37(B) OF THE COUNCIL'S RULES OF
PROCEDURE, WE MODIFY THE AWARD OF THE ARBITRATOR BY STRIKING THE LAST
SENTENCE THEREOF WHICH READS:
ALL PERSONNEL WHO WORKED ON THURSDAY, JANUARY 25, 1973, AND WERE NOT
ALLOWED TO WORK ON
SATURDAY, JANUARY 27, 1973, ARE TO BE PAID FOR FOUR ADDITIONAL HOURS.
AS SO MODIFIED, THE AWARD IS SUSTAINED AND THE STAY IS VACATED.
BY THE COUNCIL.
ISSUED: SEPTEMBER 24, 1974
/1/ ARTICLE XII, SECTION 1, OF THE NEGOTIATED AGREEMENT PROVIDES:
EMPLOYEES SHALL BE ENTITLED TO HOLIDAY BENEFITS CONSISTENT WITH
APPLICABLE REGULATIONS, IN
CONNECTION WITH ALL FEDERAL HOLIDAYS NOW PRESCRIBED BY LAW AND ANY
THAT MAY BE ADDED BY
LAW. HOLIDAYS DESIGNATED BY EXECUTIVE ORDER SHALL BE OBSERVED AS
LEGAL HOLIDAYS.
/2/ THE 28 EMPLOYEES WHO WORKED ON THE HOLIDAY BUT NOT ON SATURDAY
HAD RECEIVED 48 HOURS PAY (I.E., 5 DAYS OF WORK PLUS 8 HOURS HOLIDAY PAY
AT STRAIGHT TIME) AS COMPARED WITH THE 52 HOURS PAY THEY WOULD HAVE
RECEIVED UNDER THE CANCELLED SCHEDULE (I.E., 4 DAYS OF WORK AND 8 HOURS
OF HOLIDAY PAY AT STRAIGHT TIME PLUS 8 HOURS OF SATURDAY WORK AT THE
OVERTIME RATE OF TIME AND ONE-HALF).
/3/ THE AGENCY INDICATED THAT IT ACCEPTED THE ARBITRATOR'S CONCLUSION
THAT IT HAD, IN FACT, ACTED TO AVOID OVERTIME PAY. IT ALSO ADMITTED
THAT HAD THE 28 EMPLOYEES BEEN PROPERLY SCHEDULED, THEY WOULD HAVE
RECEIVED 52 HOURS PAY FOR 40 HOURS OF WORK INSTEAD OF 48 HOURS OF PAY
FOR THE 40 HOURS ACTUALLY WORKED.
/4/ THE AGENCY RELIED UPON THE FOLLOWING DECISIONS OF THE COMPTROLLER
GENERAL AS STANDING FOR THE PROPOSITION THAT EMPLOYEES MAY NOT BE
COMPENSATED FOR OVERTIME WORK WHERE THEY DO NOT ACTUALLY PERFORM THE
WORK DURING THE OVERTIME PERIOD: 42 COMP.GEN. 195; 45 COMP.GEN. 710;
46 COMP.GEN. 217; AND B-175867 OF JUNE 19, 1972.
2 FLRC 192; FLRC NO. 74A-57; SEPTEMBER 20, 1974.
MR. HOWARD TOY
DIRECTOR OF PERSONNEL
OFFICE OF ECONOMIC OPPORTUNITY
1200 19TH STREET, NW.
WASHINGTON, D.C. 20506
(SYNOPSIS) FLRC NO. 74A-57
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2677, AND OFFICE
OF ECONOMIC OPPORTUNITY (KLEEB), ARBITRATOR). THE AGENCY FILED WITH THE
COUNCIL ITS PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD, WHICH AWARD
WAS SERVED ON THE AGENCY ON JULY 12, 1974. UNDER THE COUNCIL'S RULES
THE PETITION WAS DUE NO LATER THAN AUGUST 5, 1974; HOWEVER, THE
PETITION WAS NOT FILED UNTIL AUGUST 6, 1974, AND NO EXTENSION OF TIME
FOR FILING WAS EITHER REQUESTED BY THE AGENCY OR GRANTED BY THE COUNCIL.
LIKEWISE, NO PERSUASIVE REASON WAS ADVANCED BY THE AGENCY FOR WAIVING
THE TIME LIMITS IN THIS CASE.
COUNCIL ACTION (SEPTEMBER 20, 1974). BECAUSE THE AGENCY'S PETITION
WAS UNTIMELY FILED, AND APART FROM OTHER CONSIDERATIONS, THE COUNCIL
DENIED THE PETITION FOR REVIEW.
DEAR MR. TOY:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION, AND THE UNION'S
OPPOSITION THERETO, FOR REVIEW OF THE ARBITRATOR'S AWARD FILED IN THE
ABOVE-ENTITLED CASE. FOR THE REASONS INDICATED BELOW, THE COUNCIL HAS
DETERMINED THAT YOUR PETITION WAS UNTIMELY FILED UNDER THE COUNCIL'S
RULES OF PROCEDURE AND CANNOT BE ACCEPTED FOR REVIEW.
SECTION 2411.33(B) OF THE COUNCIL'S RULES PROVIDES THAT A PETITION
FOR REVIEW MUST BE FILED WITHIN 20 DAYS FROM THE DATE THE ARBITRATOR'S
AWARD WAS SERVED UPON THE PARTY SEEKING REVIEW. SECTION 2411.46(C)
PROVIDES THAT THE DATE OF SERVICE SHALL BE THE DATE THE AWARD WAS
DEPOSITED IN THE MAIL OR DELIVERED IN PERSON, AS THE CASE MAY BE, AND
SECTION 2411.45(C) PROVIDES THAT, WHERE SUCH SERVICE WAS MADE BY MAIL, 3
DAYS SHALL BE ADDED TO THE TIME PERIOD WITHIN WHICH THE PETITION MUST BE
FILED. ADDITIONALLY, UNDER SECTION 2411.45(A), ANY PETITION FILED MUST
BE RECEIVED IN THE COUNCIL'S OFFICE BEFORE THE CLOSE OF BUSINESS OF THE
LAST DAY OF THE PRESCRIBED TIME PERIOD. IN COMPUTING THESE TIME
PERIODS, SECTION 2411.45(B) PROVIDES THAT IF THE LAST DAY FOR FILING A
PETITION FALLS ON A SATURDAY, SUNDAY, OR FEDERAL LEGAL HOLIDAY THE
PERIOD FOR FILING SHALL RUN UNTIL THE END OF THE NEXT DAY WHICH IS NOT A
SATURDAY, SUNDAY, OR FEDERAL LEGAL HOLIDAY.
ACCORDING TO THE RECORD BEFORE THE COUNCIL, THE ARBITRATOR'S AWARD IN
THIS CASE WAS MAILED TO, AND THEREBY SERVED UPON YOUR AGENCY ON JULY 12,
1974. ACCORDINGLY, UNDER THE ABOVE RULES, YOUR PETITION FOR REVIEW WAS
DUE IN THE COUNCIL'S OFFICE ON OR BEFORE THE CLOSE OF BUSINESS ON AUGUST
5, 1974. HOWEVER, YOUR PETITION WAS NOT RECEIVED BY THE COUNCIL UNTIL
AUGUST 6, 1974, AND NO EXTENSION OF TIME WAS EITHER REQUESTED BY YOUR
AGENCY OR GRANTED BY THE COUNCIL UNDER SECTION 2411.45(D) OF THE
COUNCIL'S RULES. LIKEWISE NO PERSUASIVE REASON HAS BEEN ADVANCED FOR
WAIVING THE TIME LIMITS IN THIS CASE.
ACCORDINGLY, AS YOUR PETITION WAS UNTIMELY FILED, AND APART FROM
OTHER CONSIDERATIONS, YOUR PETITION FOR REVIEW IS DENIED.
BY THE COUNCIL.
CC: P. KETE
NATIONAL COUNCIL OF OEO
LOCALS, LOCAL 2677
2 FLRC 185; FLRC NO. 74A-12; SEPTEMBER 9, 1974.
MR. A. DI PASQUALE, DIRECTOR
LABOR AND EMPLOYEE RELATIONS DIVISION
OFFICE OF CIVILIAN MANPOWER MANAGEMENT
DEPARTMENT OF THE NAVY
WASHINGTON, D.C. 20390
(SYNOPSIS) FLRC NO. 74A-12
NAVAL AIR REWORK FACILITY, PENSACOLA, FLORIDA AND AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, LODGE NO. 1960 (GOODMAN, ARBITRATOR). THE
ISSUE SUBMITTED TO THE ARBITRATOR IN THIS CASE WAS WHETHER
ELECTROPLATERS WERE ENTITLED TO "HIGH DEGREE (8%)" ENVIRONMENTAL
DIFFERENTIAL PAY UNDER THE BARGAINING AGREEMENT WHICH PROVIDED FOR
"ENVIRONMENTAL PAY DIFFERENTIALS." THE ARBITRATOR CONCLUDED THAT, WHILE
HE WAS UNABLE TO DECIDE THE "HIGH DEGREE" ISSUE, THE ELECTROPLATERS WERE
ENTITLED TO "LOW DEGREE (4%)" ENVIRONMENTAL DIFFERENTIAL PAY AND MADE
SUCH AWARD. THE AGENCY FILED EXCEPTIONS ON THE GROUNDS THAT (1) THE
ARBITRATOR EXCEEDED HIS AUTHORITY BY DECIDING AN ISSUE NOT SUBMITTED TO
HIM; AND (2) IMPLEMENTATION OF THE AWARD WOULD VIOLATE THE FPM OR,
DERIVATIVELY, SECTION 12(A) OF THE ORDER.
COUNCIL ACTION (SEPTEMBER 9, 1974). THE COUNCIL DETERMINED THAT THE
AGENCY'S EXCEPTIONS WERE NOT SUPPORTED BY SUFFICIENT FACTS AND
CIRCUMSTANCES TO WARRANT REVIEW AS REQUIRED BY SECTION 2411.32 OF THE
COUNCIL'S RULES OF PROCEDURE. MORE PARTICULARLY, AS TO (1), THE COUNCIL
HELD THAT THE PARTIES APPEAR TO HAVE INTENDED TO RESOLVE THE DISPUTE AS
TO WHETHER ELECTROPLATERS WERE ENTITLED TO ENVIRONMENTAL DIFFERENTIAL
PAYMENTS; AND THAT IN THE PRIVATE SECTOR COURTS HAVE RECOGNIZED A
POLICY ALLOWING ARBITRATORS CONSIDERABLE LEEWAY IN FASHIONING REMEDIES,
WHICH POLICY LIKEWISE APPLIES TO THE FEDERAL SECTOR UNDER THE COUNCIL'S
RULES. WITH RESPECT TO (2), THE COUNCIL HELD THAT THE AGENCY FAILED TO
SUPPORT ITS CLAIM THAT IMPLEMENTATION OF THE AWARD WILL VIOLATE THE FPM
OR, DERIVATIVELY, THE ORDER. ACCORDINGLY, THE COUNCIL DENIED THE
AGENCY'S PETITION FOR REVIEW. THE COUNCIL ALSO DENIED RELATED
PROCEDURAL REQUESTS FILED BY THE AGENCY.
DEAR MR. DE PASQUALE:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF AN
ARBITRATOR'S AWARD FILED IN THE ABOVE-ENTITLED CASE.
AS INDICATED IN THE AWARD, ARTICLE XX ("ENVIRONMENTAL PAY, HEALTH,
SAFETY, AND GENERAL WELFARE") OF THE AGREEMENT BETWEEN THE PARTIES
PROVIDES IN PERTINENT PART AS FOLLOWS:
SECTION 2. ENVIRONMENTAL PAY DIFFERENTIALS ARE PAID FOR EXPOSURE TO
VARIOUS DEGREES OF
HAZARDS, PHYSICAL HARDSHIPS, AND WORKING CONDITIONS OF AN UNUSUAL
NATURE. APPENDIX J OF FPM
531-1 DESCRIBES ALL OF THE CURRENT ENVIRONMENTAL PAY SITUATIONS
AUTHORIZED BY THE CIVIL
SERVICE COMMISSION . . .
BASED ON THE FACTS DESCRIBED IN THE AWARD, IT APPEARS THAT THE
SUBJECT GRIEVANCE WAS FILED AS A RESULT OF THE TERMINATION BY THE
ACTIVITY OF "HIGH DEGREE" (8%) ENVIRONMENTAL DIFFERENTIAL PAYMENTS ON A
CONTINUING BASIS TO ELECTROPLATERS. THE GRIEVANT, AN ELECTROPLATER,
ALLEGED IN EFFECT THAT TERMINATION OF SUCH PAYMENTS WAS CONTRARY TO THE
APPLICABLE PROVISIONS OF FPM SUPPLEMENT 531-1 AND APPENDIX J THERETO, IN
THAT HE "CONTINUALLY ENCOUNTER(ED) HAZARDS THAT ARE NOT ALLEVIATED BY
SAFETY DEVICES, AND . . . (HE IS) VULNERABLE TO INJURIES BECAUSE OF THE
NUMEROUS TOXIC AND CORROSIVE MATERIALS USED DAILY" IN HIS WORK, WHICH
HAVE NOT BEEN ELIMINATED BY SAFETY DEVICES. THE GRIEVANT THEREFORE
STATED THAT, PURSUANT TO FPM SUPPLEMENT 532-1 AND APPENDIX J THERETO, HE
SHOULD RECEIVE "HIGH DEGREE" ENVIRONMENTAL DIFFERENTIAL PAYMENTS,
RETROACTIVE TO THE TERMINATION OF SUCH PAYMENTS BY THE ACTIVITY. THE
GRIEVANCE WAS DENIED BY THE ACTIVITY, AND WAS THEN SUBMITTED TO
ARBITRATION PURSUANT TO THE AGREEMENT. WHILE THE ARBITRATOR'S OPINION
ITSELF IS IN PART SOMEWHAT AMBIGUOUS, IT IS CLEAR FROM THE SUBMISSIONS
TO THE COUNCIL THAT THE FOLLOWING ISSUE WAS SUBMITTED TO ARBITRATION: "
. . . WHETHER THE ELECTROPLATERS WORKING IN THE ELECTROPLATING SHOP IN
BUILDING 604 OF THE NAVAL AIR REWORK FACILITY, PENSACOLA, FLORIDA, ARE
ENTITLED TO 'HIGH DEGREE' (8%) ENVIRONMENTAL DIFFERENTIAL PAY ON A
CONTINUING BASIS."
IN HIS AWARD, THE ARBITRATOR CONCLUDED THAT DUE TO THE NATURE OF THE
QUESTION, THE TESTIMONY AND EVIDENCE PRESENTED AT THE HEARING WAS
INSUFFICIENT TO ENABLE HIM TO DECIDE THE ISSUE AS TO "HIGH DEGREE"
ENVIRONMENTAL DIFFERENTIAL PAY. THIS WAS SO, THE ARBITRATOR STATED,
ESSENTIALLY BECAUSE HE COULD NOT DETERMINE THE EXACT DEGREE OF HAZARD
PRESENT AT THE ELECTROPLATERS' WORK SITE. HE DID FIND, HOWEVER, THAT:
. . . MANAGEMENT HAS RECOGNIZED THAT THE DEGREE OF HAZARD AND
ELEMENTS NORMALLY CONSIDERED IN
THE GIVING OF A DIFFERENTIAL JUSTIFIES LOW DEGREE ENVIRONMENTAL
DIFFERENTIAL PAY FOR PLANT
SERVICES DIVISION (MAINTENANCE) EMPLOYEES WHEN WORKING ABOUT THE
ELECTROPLATING TANKS, I FEEL
COMPELLED TO SAY THAT THIS DIFFERENTIAL SHOULD BE APPLIED TO THE
ELECTROPLATERS. TO DO
OTHERWISE WOULD BE TO IGNORE THE PAYMENT OF THE DIFFERENTIAL TO SOME
EMPLOYEES IN THE AREA OR
TO ATTEMPT TO ASSERT MY JUDGMENT FOR THAT OF MANAGEMENT IN AN AREA
WHERE IT HAS MADE THIS
DETERMINATION.
ACCORDINGLY, THE ARBITRATOR AWARDED "LOW DEGREE" ENVIRONMENTAL
DIFFERENTIAL PAY ON A CONTINUING BASIS TO ELECTROPLATERS. /1/ THE
AGENCY REQUESTS THAT THE COUNCIL SET ASIDE THE ARBITRATOR'S AWARD, BASED
ON THE EXCEPTIONS DISCUSSED BELOW.
UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE, REVIEW OF
AN ARBITRATION AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON
THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE
EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES
APPLICABLE LAW, APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS
SIMILAR TO THOSE UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE
SUSTAINED BY COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS."
IN ITS FIRST EXCEPTION, THE AGENCY CONTENDS THAT THE ARBITRATOR
EXCEEDED THE SCOPE OF HIS AUTHORITY BY DIRECTING THAT ELECTROPLATERS
RECEIVE "LOW DEGREE" ENVIRONMENTAL DIFFERENTIAL PAYMENTS, BECAUSE THE
SPECIFIC ISSUE SUBMITTED TO HIM WAS WHETHER OR NOT ELECTROPLATERS ARE
ENTITLED TO RECEIVE "HIGH DEGREE" PAYMENTS. HENCE, THE AGENCY ASSERTS
THAT THE ARBITRATOR EXCEEDED THE SCOPE OF HIS AUTHORITY BY DECIDING AN
ISSUE NOT SUBMITTED TO HIM, AND THAT HIS AWARD DIRECTING THE PAYMENT OF
"LOW DEGREE" ENVIRONMENTAL DIFFERENTIALS SHOULD THEREFORE BE STRICKEN.
IN SUPPORT OF THIS EXCEPTION, THE AGENCY RELIES ON ALLEGED PRECEDENT IN
THE PRIVATE SECTOR; AND CITES THE COUNCIL'S DECISION IN AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 12 (AFGE) AND U.S. DEPARTMENT
OF LABOR (JAFFEE, ARBITRATOR), FLRC NO. 72A-3 (JULY 31, 1973), REPORT
NO. 42, AS ESTABLISHING THE PRINCIPLE IN THE FEDERAL SECTOR THAT AN
ARBITRATOR'S AWARD SHOULD BE VACATED WHERE THE ARBITRATOR HAS EXCEEDED
THE SCOPE OF HIS AUTHORITY.
WE ARE OF THE OPINION, HOWEVER, THAT THE AGENCY'S PETITION DOES NOT
PRESENT FACTS AND CIRCUMSTANCES TO SUPPORT ITS ASSERTION THAT THE
ARBITRATOR EXCEEDED THE SCOPE OF HIS AUTHORITY. WHILE THE ISSUE
SUBMITTED TO ARBITRATION WAS DESCRIBED BY THE PARTIES AS BEING WHETHER
ELECTROPLATERS ARE ENTITLED TO "HIGH DEGREE" (8%) ENVIRONMENTAL
DIFFERENTIAL PAYMENTS, THE PARTIES APPEAR ON THE BASES OF THE ENTIRE
RECORD TO HAVE INTENDED TO RESOLVE THE DISPUTE WHICH HAD ARISEN AS TO
WHETHER ELECTROPLATERS ARE ENTITLED TO ENVIRONMENTAL DIFFERENTIAL
PAYMENTS. IN THIS CONNECTION, THE ISSUE SUBMITTED TO ARBITRATION DID
NOT SPECIFICALLY DENY THE ARBITRATOR THE AUTHORITY TO DETERMINE WHETHER
SOMETHING LESS THAN "HIGH DEGREE" DIFFERENTIAL PAYMENTS WOULD BE
APPROPRIATE. /2/ MOREOVER, IN THE PRIVATE SECTOR, COURTS HAVE
RECOGNIZED A POLICY IN FAVOR OF ALLOWING ARBITRATORS CONSIDERABLE LEEWAY
IN FASHIONING REMEDIES. /3/ THIS POLICY IS LIKEWISE APPLICABLE IN THE
FEDERAL SECTOR UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF
PROCEDURE.
FURTHER, THE AGENCY'S RELIANCE ON THE COUNCIL'S DECISION IN AFGE
LOCAL 12 AND U.S. DEPARTMENT OF LABOR, SUPRA, AS SUPPORT FOR ITS FIRST
EXCEPTION, IS MISPLACED. IN THAT CASE, THE COUNCIL HELD IN ESSENCE THAT
THE ARBITRATOR HAD EXCEEDED HIS AUTHORITY BY GRANTING CONTRACTUAL RELIEF
TO NONGRIEVANTS, AS WELL AS THE GRIEVANT. THAT HOLDING IS INAPPOSITE TO
THE PRESENT QUESTION OF WHETHER THE ARBITRATOR MAY PROPERLY AWARD TO A
GRIEVANT RELIEF WHICH IS OF LESSER DEGREE THAN THAT SPECIFIED IN THE
SUBMISSION AGREEMENT.
ACCORDINGLY, BASED ON THE FOREGOING, THE AGENCY'S PETITION FOR REVIEW
DOES NOT FURNISH SUFFICIENT FACTS AND CIRCUMSTANCES TO SUPPORT THE
ASSERTION IN ITS FIRST EXCEPTION, AS REQUIRED BY SECTION 2411.32 OF THE
COUNCIL'S RULES OF PROCEDURE.
IN ITS SECOND EXCEPTION, THE AGENCY CONTENDS THAT THE ARBITRATOR'S
AWARD VIOLATES FPM SUPPLEMENT 532-1, SECTION S8-7, AND APPENDIX J TO FPM
SUPPLEMENT 532-1. THESE PROVISIONS OF THE FPM DEAL WITH THE PAYMENT OF
ENVIRONMENTAL DIFFERENTIALS. SECTION S8-7 PROVIDES IN PART THAT "AN
ENVIRONMENTAL DIFFERENTIAL IS PAID TO A WAGE EMPLOYEE WHO IS EXPOSED TO
A HAZARD, PHYSICAL HARDSHIP, OR WORKING CONDITION OF AN UNUSUALLY SEVERE
NATURE LISTED UNDER THE CATEGORIES IN APPENDIX J . . . " THE AGENCY
ARGUES THAT THERE FPM PROVISIONS REQUIRE THE ARBITRATOR TO MAKE SPECIFIC
FINDINGS OF FACT AS TO WHAT, IF ANY, HAZARDS, PHYSICAL HARDSHIPS OR
WORKING CONDITIONS OF AN UNUSUALLY SEVERE NATURE THE ELECTROPLATERS IN
THIS CASE ARE EXPOSED TO IN ORDER TO JUSTIFY AN AWARD OF "LOW DEGREE"
ENVIRONMENTAL DIFFERENTIAL PAY; AND THAT IN VIEW OF HIS FAILURE TO MAKE
SUCH FINDINGS, THE ACTIVITY WOULD VIOLATE THE FPM IF IT WERE TO
IMPLEMENT THE AWARD. THE AGENCY FURTHER ASSERTS THAT SUCH VIOLATIONS OF
THE FPM WOULD CONSTITUTE A VIOLATION OF SECTION 12(A) OF THE ORDER, /4/
IN THAT THE ARBITRATION PROCEEDING IN THIS CASE IS PERTINENT TO A
"MATTER COVERED BY THE AGREEMENT," AND AS A RESULT THE ARBITRATOR'S
AWARD MUST, PURSUANT TO SECTION 12(A), COMPLY WITH THE PROVISIONS OF THE
FPM. WE MUST HOLD THAT THE AGENCY'S PETITION DOES NOT PRESENT SUPPORT
FOR ITS CONTENTIONS IN THIS REGARD.
VARIOUS PROVISIONS OF FPM SUPPLEMENT 532-1, SECTION S8-7, ADDRESS
THEMSELVES TO THE ROLE OF THE LOCAL INSTALLATION OR ACTIVITY IN THE
PAYMENT OF ENVIRONMENTAL DIFFERENTIALS. THEY PROVIDE AS FOLLOWS:
B. BASIS FOR ENVIRONMENTAL DIFFERENTIAL. THESE INSTRUCTIONS PROVIDE
THE BASIS FOR (1)
APPROVING AND PAYING ENVIRONMENTAL DIFFERENTIALS TO WAGE EMPLOYEES
(FULL-TIME, PART-TIME, OR
INTERMITTENT); (2) LISTING CATEGORIES OF SITUATIONS IN APPENDIX J OF
THIS SUBCHAPTER AND
SPECIFYING THE DIFFERENTIALS PAYABLE FOR EACH CATEGORY LISTED; AND
(3) PROVIDING GUIDELINES
UNDER EACH CATEGORY TO IDENTIFY THE VARIOUS DEGREES OF HAZARD,
PHYSICAL HARDSHIPS, AND WORKING
CONDITIONS OF AN UNUSUALLY SEVERE NATURE, BY THE USE OF EXAMPLES FOR
THE CATEGORIES LISTED IN
APPENDIX J.
E. . . . WHEN EXAMPLES ARE LISTED UNDER THE CATEGORIES IN APPENDIX
J, THESE EXAMPLES ARE
ILLUSTRATIVE ONLY AND ARE NOT INTENDED TO BE EXCLUSIVE OF OTHER
EXPOSURES WHICH MAY BE
ENCOUNTERED UNDER THE CIRCUMSTANCES WHICH DESCRIBED THE LISTED
CATEGORY.
G. DETERMINING LOCAL SITUATIONS WHEN ENVIRONMENTAL DIFFERENTIALS ARE
PAYABLE. (1)
APPENDIX J DEFINES THE CATEGORIES OF EXPOSURE FOR WHICH THE HAZARD,
PHYSICAL HARDSHIPS, OR
WORKING CONDITIONS ARE OF SUCH AN UNUSUAL NATURE AS TO WARRANT
ENVIRONMENTAL DIFFERENTIALS,
AND GIVES EXAMPLES OF SITUATIONS WHICH ARE ILLUSTRATIVE OF THE NATURE
AND DEGREE OF THE
PARTICULAR HAZARD, PHYSICAL HARDSHIP, OR WORKING CONDITION INVOLVED
IN PERFORMING THE
CATEGORY. THE EXAMPLES OF THE SITUATIONS ARE NOT ALL INCLUSIVE BUT
ARE INTENDED TO BE
ILLUSTRATIVE ONLY.
(2) EACH INSTALLATION OR ACTIVITY MUST EVALUATE ITS SITUATION AGAINST
THE GUIDELINES IN
APPENDIX J TO DETERMINE WHETHER THE LOCAL SITUATION IS COVERED BY ONE
OR MORE OF THE DEFINED
CATEGORIES.
(A) WHEN THE LOCAL SITUATION IS DETERMINED TO BE COVERED BY ONE OR
MORE OF THE DEFINED
CATEGORIES (EVEN THOUGH NOT COVERED BY A SPECIFIC ILLUSTRATIVE
EXAMPLE), THE AUTHORIZED
ENVIRONMENTAL DIFFERENTIAL IS PAID FOR THE APPROPRIATE CATEGORY.
(3) NOTHING IN THIS SECTION SHALL PRECLUDE NEGOTIATIONS THROUGH THE
COLLECTIVE BARGAINING
PROCESS FOR DETERMINING THE COVERAGE OF ADDITIONAL LOCAL SITUATIONS
UNDER APPROPRIATE
CATEGORIES IN APPENDIX J . . .
THE AGENCY ALLEGED THAT THE ARBITRATOR WAS REQUIRED BY THE BROAD
GUIDELINES IN FPM SUPPLEMENT 532-1, SECTION S8-7 AND APPENDIX J TO FPM
SUPPLEMENT 532-1 TO MAKE SPECIFIC FINDINGS OF FACT AND FAILED TO DO SO.
OBVIOUSLY, IN THE DETERMINATION OF LOCAL SITUATIONS FOR WHICH
ENVIRONMENTAL DIFFERENTIAL IS AUTHORIZED THE FPM MUST BE COMPLIED WITH;
HOWEVER, WITH REGARD TO THE INSTANT CASE, THE AGENCY DOES NOT ADVERT TO
ANY SPECIFIC FPM REQUIREMENT TO SUPPORT ITS CONTENTION THAT THE
ARBITRATOR MUST MAKE SPECIFIC FINDINGS OF FACT, NOR DOES OUR RESEARCH
REVEAL THE PRESENCE OF ANY SUCH REQUIREMENT IN THE FPM.
WE THEREFORE FIND THAT THE AGENCY HAS NOT SUPPORTED ITS CONTENTION
THAT IMPLEMENTATION OF THE AWARD WILL VIOLATE THE FPM, OR DERIVATIVELY,
SECTION 12(A) OF THE ORDER, AND HOLD THAT THE FACTS AND CIRCUMSTANCES
DESCRIBED IN THE PETITION DO NOT ADEQUATELY SUPPORT THE ALLEGATIONS MADE
IN REGARD TO THE AGENCY'S SECOND EXCEPTION, AS REQUIRED BY SECTION
2411.32.
ACCORDINGLY, THE AGENCY'S PETITION IS DENIED BECAUSE IT FAILS TO MEET
THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.32 OF THE
COUNCIL'S RULES OF PROCEDURE. LIKEWISE, THE AGENCY'S REQUEST FOR A STAY
IS DENIED UNDER SECTION 2411.47(D) OF THE COUNCIL'S RULES. FINALLY, THE
AGENCY'S ALTERNATIVE REQUEST THAT THE AWARD BE REMANDED TO THE
ARBITRATOR FOR CLARIFICATION OR FOR A HEARING DE NOVO IS DENIED, SINCE
NO PERSUASIVE REASON HAS BEEN ADVANCED BY THE AGENCY FOR SUCH ACTION.
BY THE COUNCIL.
CC: W. J. SMITH
AFGE
/1/ THE ARBITRATOR DID NOT ADDRESS HIMSELF TO THE QUESTION OF WHETHER
SUCH PAYMENTS SHOULD BE MADE RETROACTIVELY, AS WAS REQUESTED IN THE
GRIEVANCE.
/2/ SEE I.B.E.W. LOCAL 2130 V. BALLY CASE & COOLER CO., 232 F.SUPP.
394 (E.D. PA. 1964). IN THAT CASE, THE SUBMISSION AGREEMENT POSED THE
QUESTION FOR RESOLUTION AS BEING WHETHER CERTAIN EMPLOYEES WERE
DISCHARGED FOR JUST CAUSE AND WHETHER THERE SHOULD BE BACKPAY. THE
ARBITRATOR DECIDED THAT THERE WAS NO JUST CAUSE FOR DISCHARGE, AND WENT
ON TO STATE THAT SUSPENSION OF THE EMPLOYEES WAS A PROPER DISCIPLINE,
EVEN THOUGH THE SPECIFIC QUESTION OF SUSPENSION WAS NOT SUBMITTED TO
HIM. THE COURT HELD, HOWEVER, THAT THIS FACT DID NOT MEAN THAT THE
ARBITRATOR HAD EXCEEDED HIS AUTHORITY, AND AFFIRMED THE AWARD, NOTING
THAT THE SUBMISSION AGREEMENT "DID NOT SPECIFICALLY DENY TO THE
ARBITRATOR THE POWER TO CONSIDER WHETHER THERE WAS JUST CAUSE FOR
SUSPENSION RATHER THAN DISCHARGE . . . "
/3/ SEE GENERALLY UNITED STEELWORKERS OF AMERICA V. ENTERPRISE WHEEL
& CAR CORP., 363 U.S. 593 (1960) AT P. 597, WHEREIN THE COURT STATES
THAT AN ARBITRATOR:
. . . IS TO BRING HIS INFORMED JUDGMENT TO BEAR IN ORDER TO REACH A
FAIR SOLUTION OF A
PROBLEM. THIS IS ESPECIALLY TRUE WHEN IT COMES TO FORMULATING
REMEDIES. THERE THE NEED IS
FOR FLEXIBILITY IN MEETING A WIDE VARIETY OF SITUATIONS. THE
DRAFTSMEN MAY NEVER HAVE THOUGHT
OF WHAT SPECIFIC REMEDY SHOULD BE AVAILABLE TO MEET A PARTICULAR
CONTINGENCY.
/4/ SECTION 12(A) OF THE ORDER PROVIDES, IN PERTINENT PART, AS
FOLLOWS:
(A) IN THE ADMINISTRATION OF ALL MATTERS COVERED BY THE AGREEMENT,
OFFICIALS AND EMPLOYEES
ARE GOVERNED BY EXISTING OR FUTURE LAWS AND THE REGULATIONS OF
APPROPRIATE AUTHORITIES,
INCLUDING POLICIES SET FORTH IN THE FEDERAL PERSONNEL MANUAL . . . "
2 FLRC 183; FLRC NO. 74A-21; AUGUST 19, 1974.
MR. HERBERT CAHN
PRESIDENT, LOCAL 476
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES
P.O. BOX 204
LITTLE SILVER, NEW JERSEY 07739
(SYNOPSIS) FLRC NO. 74A-21
U.S. ARMY ELECTRONICS COMMAND, FT. MONMOUTH, NEW JERSEY, ASSISTANT
SECRETARY CASE NO. 32-3329 (CA). THE UNION (LOCAL 476, NATIONAL
FEDERATION OF FEDERAL EMPLOYEES) APPEALED TO THE COUNCIL FROM THE
ASSISTANT SECRETARY'S DECISION DENYING THE UNION'S REQUEST FOR REVIEW OF
THE DISMISSAL OF ITS UNFAIR LABOR PRACTICE COMPLAINT, WHICH DECISION WAS
BASED ON THE UNTIMELINESS OF THE REQUEST FOR REVIEW. AFTER THE APPEAL
WAS FILED, THE ASSISTANT SECRETARY VACATED HIS SUBJECT DECISION AND
RULED THAT HE WILL CONSIDER THE UNION'S REQUEST ON ITS MERITS.
COUNCIL ACTION (AUGUST 19, 1974). SINCE THE DISPUTE INVOLVED IN THE
UNION'S APPEAL TO THE COUNCIL WAS RENDERED MOOT, THE COUNCIL DENIED
REVIEW OF THE APPEAL, WITHOUT PREJUDICE TO THE UNION'S RIGHT OF APPEAL
TO THE COUNCIL AFTER A FINAL DECISION ON THE ENTIRE CASE BY THE
ASSISTANT SECRETARY.
DEAR MR. CAHN:
REFERENCE IS MADE TO YOUR APPEAL FROM THE ASSISTANT SECRETARY'S
DENIAL, ON THE BASIS OF UNTIMELINESS, OF YOUR REQUEST FOR REVIEW OF THE
ASSISTANT REGIONAL DIRECTOR'S DISMISSAL OF YOUR UNFAIR LABOR PRACTICE
COMPLAINT IN THE ABOVE-ENTITLED CASE.
THE COUNCIL IS ADMINISTRATIVELY INFORMED THAT THE ASSISTANT
SECRETARY, BY LETTER DATED JULY 22, 1974, HAS VACATED HIS SUBJECT
DECISION AND HAS RULED THAT HE WILL NOW CONSIDER YOUR REQUEST FOR REVIEW
ON ITS MERITS.
ACCORDINGLY, SINCE THE DISPUTE INVOLVED IN YOUR APPEAL TO THE COUNCIL
HAS BEEN RENDERED MOOT, REVIEW OF YOUR APPEAL IS DENIED, WITHOUT
PREJUDICE TO YOUR RIGHT OF APPEAL, IN A PETITION DULY FILED WITH THE
COUNCIL, AFTER A FINAL DECISION ON THE ENTIRE CASE BY THE ASSISTANT
SECRETARY.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
H. F. FOSTER, JR., MAJ. GEN.
USAECOM
2 FLRC 180; FLRC NO. 74A-56; AUGUST 15, 1974.
MR. JOHN J. D'ANGELO
BANK, MINEHART & D'ANGELO
SUITE 2409
TWELVE SOUTH TWELFTH STREET
PHILADELPHIA, PENNSYLVANIA 19107
(SYNOPSIS) FLRC NO. 74A-56
AIR ENGINEERING CENTER, NAVAL AIR SUPPORT ACTIVITY, PHILADELPHIA,
PA., ASSISTANT SECRETARY CASE NO. 20-4311. THE INDIVIDUAL COMPLAINANT
(JOSEPH J. CHICKILLO) APPEALED TO THE COUNCIL FROM THE DECISION OF THE
ASSISTANT SECRETARY WHICH ISSUED ON JULY 8, 1974. THE APPEAL WAS DUE,
UNDER THE COUNCIL'S RULES, ON OR ABOUT JULY 31, 1974. HOWEVER, THE
APPEAL WAS NOT FILED WITH THE COUNCIL UNTIL AUGUST 6, 1974, AND NO
EXTENSION OF THE TIME FOR FILING WAS EITHER REQUESTED BY THE COMPLAINANT
OR GRANTED BY THE COUNCIL.
COUNCIL ACTION (AUGUST 15, 1974). BECAUSE THE COMPLAINANT'S APPEAL
WAS UNTIMELY FILED, AND APART FROM OTHER CONSIDERATIONS, THE COUNCIL
DENIED THE PETITION FOR REVIEW.
DEAR MR. D'ANGELO:
REFERENCE IS MADE TO YOUR PETITION FOR REVIEW OF THE ASSISTANT
SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE. FOR THE REASONS
INDICATED BELOW, THE COUNCIL HAS DETERMINED THAT YOUR PETITION WAS
UNTIMELY FILED UNDER THE COUNCIL'S RULES OF PROCEDURE AND CANNOT BE
ACCEPTED FOR REVIEW.
SECTION 2411.13(B) OF THE COUNCIL'S RULES (5 CFR 2411.13(B)) PROVIDES
THAT AN APPEAL MUST BE FILED WITHIN 20 DAYS FROM THE DATE OF SERVICE OF
THE ASSISTANT SECRETARY'S DECISION ON THE PARTY SEEKING REVIEW; UNDER
SECTION 2411.45(C) OF THE RULES (5 CFR 2411.45(C)), THREE ADDITIONAL
DAYS ARE ALLOWED WHEN SERVICE IS BY MAIL; AND UNDER SECTION 2411.45(A)
OF THE RULES (5 CFR 2411.45(A)), SUCH APPEAL MUST BE RECEIVED IN THE
COUNCIL'S OFFICE BEFORE THE CLOSE OF BUSINESS OF THE LAST DAY OF THE
PRESCRIBED TIME LIMIT.
THE ASSISTANT SECRETARY'S DECISION IN THIS CASE WAS DATED JULY 8,
1974 AND, SO FAR AS YOUR APPEAL INDICATES, WAS MAILED ON OR ABOUT THAT
DATE. THEREFORE, UNDER THE ABOVE RULES, YOUR APPEAL WAS DUE IN THE
COUNCIL'S OFFICE ON OR ABOUT JULY 31, 1974. HOWEVER, YOUR PETITION FOR
REVIEW WAS NOT FILED UNTIL AUGUST 6, 1974, AND NO EXTENSION OF TIME WAS
EITHER REQUESTED BY YOU OR GRANTED BY THE COUNCIL UNDER SECTION
2411.45(D) OF THE COUNCIL'S RULES (5 CFR 2411.45(D)).
ACCORDINGLY, AS YOUR APPEAL WAS UNTIMELY FILED, AND APART FROM OTHER
CONSIDERATIONS, YOUR PETITION FOR REVIEW IS DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
2 FLRC 177; FLRC NO. 74A-27; JULY 31, 1974.
MR. FREDERICK BENEDICT
2351 OLIVE AVENUE
FREMONT, CALIFORNIA 94538
(SYNOPSIS) FLRC NO. 74A-27
FEDERAL AVIATION ADMINISTRATION, WESTERN REGION, SAN FRANCISCO,
CALIFORNIA, ASSISTANT SECRETARY CASE NO. 70-4068. THE ASSISTANT
SECRETARY PURSUANT TO SECTION 203.2(B)(3) OF HIS REGULATIONS (REQUIRING
THE FILING OF A COMPLAINT WITHIN NINE MONTHS OF THE OCCURRENCE OF THE
ALLEGED UNFAIR LABOR PRACTICE) DISMISSED AS UNTIMELY FILED FREDERICK
BENEDICT'S COMPLAINT WHICH ALLEGED THAT WRITTEN COMMUNICATIONS SENT BY
THE ACTIVITY TO THE CIVIL SERVICE COMMISSION BETWEEN 1967 AND 1970,
CONCERNING BENEDICT'S ORGANIZATIONAL ACTIVITIES, VIOLATED SECTIONS 1 AND
19(A)(1) AND (3) OF THE ORDER. BENEDICT APPEALED TO THE COUNCIL,
CONTENDING, IN SUBSTANCE, THAT THE ASSISTANT SECRETARY'S DECISION
APPEARS ARBITRARY AND CAPRICIOUS OR PRESENTS A MAJOR POLICY ISSUE
BECAUSE THE TIME PERIOD FOR FILING A COMPLAINT SHOULD RUN FROM THE DATE
OF DISCOVERY, RATHER THAN OCCURRENCE, OF THE ALLEGED UNFAIR LABOR
PRACTICE, AND ASSERTING THAT THE ALLEGED UNFAIR LABOR PRACTICE WAS A
CONTINUING MATTER.
COUNCIL ACTION (JULY 31, 1974). THE COUNCIL HELD THAT THE ASSISTANT
SECRETARY'S DECISION DID NOT PRESENT A MAJOR POLICY ISSUE SINCE NO
PERSUASIVE REASONS WERE ADVANCED BY BENEDICT FOR OVERTURNING THE
ASSISTANT SECRETARY'S REGULATIONS, AS INTERPRETED AND APPLIED, REQUIRING
THAT A COMPLAINT BE FILED WITHIN NINE MONTHS OF THE OCCURRENCE, RATHER
THAN THE DATE OF DISCOVERY, OF THE ALLEGED UNFAIR LABOR PRACTICE. THE
COUNCIL FURTHER HELD THAT THE ASSISTANT SECRETARY'S DECISION DID NOT
APPEAR ARBITRARY AND CAPRICIOUS SINCE IT DID NOT APPEAR TO BE WITHOUT
REASONABLE JUSTIFICATION IN THIS CASE. IN THIS REGARD, THE COUNCIL
NOTED THAT BENEDICT FAILED TO SHOW THAT THE SUBJECT COMMUNICATION
CONSTITUTED A CONTINUING UNFAIR LABOR PRACTICE; NOR WERE OTHER GROUNDS
ADDUCED, SUCH AS FRAUDULENT CONCEALMENT, THAT MIGHT WARRANT A "WAIVER"
OF THE TIMELINESS REQUIREMENT. ACCORDINGLY, THE COUNCIL DENIED REVIEW
OF BENEDICT'S APPEAL PURSUANT TO SECTION 2411.12 OF THE COUNCIL'S RULES
OF PROCEDURE (5 CFR 2411.12).
DEAR MR. BENEDICT:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
IN THIS CASE, THE ASSISTANT SECRETARY IN EFFECT UPHELD THE ASSISTANT
REGIONAL DIRECTOR'S DISMISSAL OF YOUR UNFAIR LABOR PRACTICE COMPLAINT.
YOUR COMPLAINT HAD ALLEGED THAT WRITTEN COMMUNICATIONS SENT BY THE
ACTIVITY TO THE CIVIL SERVICE COMMISSION BETWEEN 1967 AND 1970 LINK YOU
TO TWO "SICKOUTS," AND MAKE REFERENCE TO UNION ACTIVITIES ON YOUR PART;
AND THAT SUCH COMMUNICATIONS CONSTITUTED VIOLATIONS OF SECTIONS 1 AND
19(A)(1) AND (3) OF THE ORDER. IN THIS REGARD THE ASSISTANT SECRETARY
FOUND FURTHER PROCEEDINGS WITH RESPECT TO YOUR COMPLAINT TO BE
UNWARRANTED BECAUSE THE COMPLAINT WAS NOT FILED WITHIN NINE MONTHS OF
THE OCCURRENCE OF THE ALLEGED UNFAIR LABOR PRACTICE AS REQUIRED BY
SECTION 203.2(B)(3) OF THE ASSISTANT SECRETARY'S REGULATIONS, AND HE
REJECTED YOUR CONTENTION THAT YOUR "DISCOVERY" OF THE COMMUNICATIONS
AFTER THE EXPIRATION OF THE PRESCRIBED FILING PERIOD WARRANTED A
"WAIVER" OF THE TIMELINESS REQUIREMENT.
IN YOUR PETITION FOR REVIEW, YOU CONTEND IN SUBSTANCE THAT THE
ASSISTANT SECRETARY'S DECISION APPEARS ARBITRARY AND CAPRICIOUS OR
PRESENTS A MAJOR POLICY ISSUE, BECAUSE THE TIME PERIOD FOR FILING YOUR
COMPLAINT SHOULD RUN FROM THE DATE THAT YOU DISCOVERED THE ALLEGED
UNFAIR LABOR PRACTICE; AND YOU ASSERT THAT THIS UNFAIR LABOR PRACTICE
"HAS BEEN A CONTINUING MATTER."
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW OF THE ASSISTANT
SECRETARY'S DECISION DOES NOT MEET THE REQUIREMENTS OF SECTION 2411.12
OF THE COUNCIL'S RULES; THAT IS, HIS FINDINGS AND DECISION DO NOT
APPEAR IN ANY MANNER ARBITRARY AND CAPRICIOUS NOR DO THEY PRESENT A
MAJOR POLICY ISSUE. AS TO THE ALLEGED MAJOR POLICY ISSUE, YOUR APPEAL
PRESENTS NO PERSUASIVE REASONS FOR OVERTURNING THE ASSISTANT SECRETARY'S
REGULATION, AS INTERPRETED AND APPLIED, THAT A COMPLAINT BE FILED WITHIN
NINE MONTHS OF THE OCCURRENCE OF THE ALLEGED UNFAIR LABOR PRACTICE
RATHER THAN FROM THE DATE OF DISCOVERY OF SUCH UNFAIR LABOR PRACTICE.
WITH RESPECT TO YOUR CONTENTION THAT THE DECISION OF THE ASSISTANT
SECRETARY APPEARS ARBITRARY AND CAPRICIOUS, IT DOES NOT APPEAR THAT THE
FINDINGS AND DECISION OF THE ASSISTANT SECRETARY WERE WITHOUT REASONABLE
JUSTIFICATION IN THE CIRCUMSTANCES OF THIS CASE. IN THE ABOVE REGARD,
WHILE YOU MAKE A BARE ASSERTION THAT THE UNFAIR LABOR PRACTICE HAS BEEN
A CONTINUING MATTER, YOU MAKE NO SHOWING, FOR EXAMPLE, THAT THE WRITTEN
COMMUNICATIONS WERE RETAINED IN YOUR PERSONNEL FILE AND THEREBY
CONSTITUTED A CONTINUING UNFAIR LABOR PRACTICE; NOR ARE ANY OTHER
GROUNDS ADDUCED IN YOUR APPEAL, SUCH AS FRAUDULENT CONCEALMENT, THAT
MIGHT WARRANT THE GRANTING OF A "WAIVER" OF THE TIMELINESS REQUIREMENT.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS AND DOES NOT PRESENT A MAJOR POLICY ISSUE, YOUR APPEAL
FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED UNDER SECTION
2411.12 OF THE COUNCIL'S RULES OF PROCEDURE. ACCORDINGLY, REVIEW OF
YOUR APPEAL IS HEREBY DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
R. J. ALFULTIS
TRANSPORTATION
2 FLRC 174; FLRC NO. 74A-26; JULY 31, 1974.
MR. FREDERICK BENEDICT
2351 OLIVE AVENUE
FREMONT, CALIFORNIA 94538
(SYNOPSIS) FLRC NO. 74A-26
FEDERAL AVIATION ADMINISTRATION, WESTERN REGION, SAN FRANCISCO,
CALIFORNIA, ASSISTANT SECRETARY CASE NO. 70-4067. THE ASSISTANT
SECRETARY UPHELD THE ASSISTANT REGIONAL DIRECTOR'S DISMISSAL OF
FREDERICK BENEDICT'S COMPLAINT WHICH ALLEGED THAT A REMARK MADE BY A
SUPERVISOR TO A UNION OFFICIAL (I.E., THE FAA FLIGHT SURGEON "HAD A
STRONG CASE AGAINST FREDERICK BENEDICT (REGARDING SEPARATION ATTEMPT BY
FAA)") VIOLATED SECTION 19(A)(1) AND (3) OF THE ORDER BY DISCOURAGING
THE UNION FROM REPRESENTING BENEDICT. THE ASSISTANT SECRETARY FOUND
THAT THE REMARK IN QUESTION FAILED TO ESTABLISH A REASONABLE BASIS FOR
BENEDICT'S COMPLAINT AND THAT BENEDICT FAILED TO SUSTAIN HIS BURDEN OF
PROOF UNDER THE ASSISTANT SECRETARY'S REGULATIONS. BENEDICT APPEALED TO
THE COUNCIL CONTENDING, IN EFFECT, THAT THE ASSISTANT SECRETARY'S
DECISION APPEARS ARBITRARY AND CAPRICIOUS OR PRESENTS A MAJOR POLICY
ISSUE, SUBSTANTIALLY BECAUSE A HEARING SHOULD HAVE BEEN CONDUCTED, AND
BECAUSE THE UNION HAD FAILED TO REPRESENT HIM PROPERLY.
COUNCIL ACTION (JULY 31, 1974). THE COUNCIL HELD THAT NOTHING IN
BENEDICT'S APPEAL INDICATED THAT SUBSTANTIAL FACTUAL ISSUES EXIST
REQUIRING A HEARING; AND THE ASSISTANT SECRETARY'S DECISION DID NOT
APPEAR TO BE WITHOUT REASONABLE JUSTIFICATION OR IN ANY OTHER MANNER
ARBITRARY AND CAPRICIOUS. THE COUNCIL FURTHER DETERMINED THAT NO MAJOR
POLICY ISSUE WAS PRESENTED BY THE ASSISTANT SECRETARY'S DECISION.
ACCORDINGLY, THE COUNCIL DENIED REVIEW OF BENEDICT'S APPEAL PURSUANT TO
SECTION 2411.12 OF THE COUNCIL'S RULES OF PROCEDURE (5 CFR 2411.12).
DEAR MR. BENEDICT:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR REQUEST FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
IN THIS CASE THE ASSISTANT SECRETARY IN SUBSTANCE AFFIRMED THE
ASSISTANT REGIONAL DIRECTOR'S DISMISSAL OF YOUR UNFAIR LABOR PRACTICE
COMPLAINT. YOUR COMPLAINT HAD ALLEGED THAT A SUPERVISOR, IN A TELEPHONE
CONVERSATION WITH A UNION OFFICIAL, STATED THE FAA FLIGHT SURGEON "HAD A
STRONG CASE AGAINST FREDERICK BENEDICT (REGARDING SEPARATION ATTEMPT BY
FAA);" AND THAT SUCH STATEMENT VIOLATED SECTION 19(A)(1) AND (3) OF THE
ORDER BY DISCOURAGING THE UNION FROM REPRESENTING YOU. THE ASSISTANT
SECRETARY FOUND THAT SUCH STATEMENT, STANDING ALONE, DOES NOT ESTABLISH
A REASONABLE BASIS FOR YOUR COMPLAINT AND THAT YOU HAD FAILED TO SUSTAIN
YOUR BURDEN OF PROOF AS REQUIRED BY SECTION 203.5(C) OF HIS REGULATIONS.
IN YOUR PETITION FOR REVIEW, YOU CONTEND, IN EFFECT, THAT THE
ASSISTANT SECRETARY'S DECISION APPEARS ARBITRARY AND CAPRICIOUS OR
PRESENTS A MAJOR POLICY ISSUE, SUBSTANTIALLY BECAUSE A HEARING SHOULD
HAVE BEEN CONDUCTED, AND BECAUSE THE UNION FAILED TO REPRESENT YOU
PROPERLY, AS EVIDENCED IN A PENDING UNFAIR LABOR PRACTICE COMPLAINT
WHICH YOU FILED AGAINST THE UNION.
IN THE COUNCIL'S OPINION, NOTHING IN YOUR APPEAL INDICATES THAT
SUBSTANTIAL FACTUAL ISSUES EXIST REQUIRING A HEARING. MOREOVER, THE
ASSISTANT SECRETARY'S DETERMINATION DOES NOT APPEAR TO BE WITHOUT
REASONABLE JUSTIFICATION OR IN ANY OTHER MANNER ARBITRARY AND
CAPRICIOUS. ADDITIONALLY, IN OUR VIEW, NO MAJOR POLICY ISSUE IS
PRESENTED BY THE ASSISTANT SECRETARY'S DECISION.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS AND DOES NOT PRESENT A MAJOR POLICY ISSUE, YOUR APPEAL
FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED UNDER SECTION
2411.12 OF THE COUNCIL'S RULES OF PROCEDURE. ACCORDINGLY, REVIEW OF
YOUR APPEAL IS HEREBY DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
R. J. ALFULTIS
TRANSPORTATION
2 FLRC 164; FLRC NO. 73A-42; JULY 31, 1974.
VETERANS ADMINISTRATION HOSPITAL,
CANANDAIGUA, NEW YORK
AND
LOCAL 227, SERVICE EMPLOYEES INTERNATIONAL
UNION, BUFFALO, NEW YORK
(SYNOPSIS) FLRC NO. 73A-42
VETERANS ADMINISTRATION HOSPITAL, CANANDAIGUA, NEW YORK AND LOCAL
227, SERVICE EMPLOYEES INTERNATIONAL UNION, BUFFALO, NEW YORK (MILLER,
ARBITRATOR). THE COUNCIL ACCEPTED THE AGENCY'S PETITION FOR REVIEW IN
THIS CASE, WHICH PETITION ALLEGED THAT THE ARBITRATOR'S AWARD VIOLATED
THE ORDER BY DIRECTING THE HOSPITAL, BEFORE ASSIGNING ALL PRESENT
LICENSED PRACTICAL NURSES (LPN'S) TO THE MIDNIGHT SHIFT, TO RECOGNIZE
THE LPN'S RIGHTS UNDER THE SENIORITY CLAUSE OF THE COLLECTIVE BARGAINING
AGREEMENT AND CONSIDER ASSIGNING EITHER NURSING ASSISTANTS (NA'S) OR
NEWLY EMPLOYED LPN'S WITH LESSER SENIORITY TO THAT SHIFT (REPORT NO.
47).
COUNCIL ACTION (JULY 31, 1974). THE COUNCIL HELD THAT THE AWARD
COMPELS THE HOSPITAL TO TREAT THE NA'S AS THE FUNCTIONAL EQUIVALENT TO
AND INTERCHANGEABLE WITH THE LPN'S AND THEREBY VIOLATES THE ORDER BY
INTERPRETING AND APPLYING THE SENIORITY CLAUSE OF THE AGREEMENT IN SUCH
A MANNER AS TO INFRINGE UPON THE RIGHT RESERVED TO THE HOSPITAL, UNDER
SECTION 12(B)(5) OF THE ORDER, TO DETERMINE THE PERSONNEL BY WHOM ITS
NURSING CARE SERVICES ARE TO BE PERFORMED. ACCORDINGLY, PURSUANT TO
SECTION 2411.37(B) OF ITS RULES (5 CFR 2411.37(B)), THE COUNCIL SET
ASIDE THE ARBITRATOR'S AWARD.
SEVERAL GS-6 LICENSED PRACTICAL NURSES (LPN'S) FILED A GRIEVANCE
AGAINST THE VETERANS ADMINISTRATION HOSPITAL, CANANDAIGUA, NEW YORK,
ALLEGING THAT THEY HAD BEEN ASSIGNED TO THE MIDNIGHT SHIFT AGAINST THEIR
WISHES IN VIOLATION OF THE SENIORITY CLAUSE (ARTICLE XVII, SECTION 4) OF
THE COLLECTIVE BARGAINING AGREEMENT. /1/
BASED ON THE FINDINGS OF THE ARBITRATOR, THE AGENCY'S UNCONTROVERTED
STATEMENTS IN ITS APPEAL TO THE COUNCIL AND THE ENTIRE RECORD, THE
CIRCUMSTANCES OF THE CASE APPEAR AS FOLLOWS: /2/
THE HOSPITAL CARES FOR PREDOMINATELY PSYCHIATRIC PATIENTS. ITS
PHYSICAL PLANT CONSISTS OF SEVERAL SEPARATE BUILDINGS WHICH CONTAIN
PATIENT CARE AREAS. MOST OF THESE BUILDINGS HOUSE THE MORE ACUTELY ILL
PATIENTS AND INCLUDE "LOCKED WARD" AREAS; THE LESS ACUTELY ILL PATIENTS
ARE HOUSED IN THREE BUILDINGS REFERRED TO AS "OPEN BUILDINGS."
THE HOSPITAL'S NURSING STAFF INCLUDES REGISTERED NURSES (RN'S),
LPN'S, AND NURSING ASSISTANTS (NA'S). BOTH THE LPN'S AND THE NA'S ARE
CLASSIFIED TO THE GENERAL SCHEDULE POSITION CLASSIFICATION SERIES
GS-621. THE RECORD SHOWS THAT THE OFFICIALLY ASSIGNED TITLE OF THE LPN
POSITIONS INVOLVED HEREIN IS: LICENSED PRACTICAL NURSE; THE OFFICIALLY
ASSIGNED TITLE OF THE NA POSITIONS INVOLVED HEREIN IS: PSYCHIATRIC
NURSING ASSISTANT. THE GS-621 SERIES IS DEFINED BY THE U.S. CIVIL
SERVICE COMMISSION AS COVERING
POSITIONS WHICH INVOLVE A VARIETY OF PERSONAL CARE, NURSING CARE, OR
RELATED TECHNICAL
PROCEDURES WHICH DO NOT REQUIRE THE FULL PROFESSIONAL BACKGROUND IN
NURSING CARE PLANNING AND
EVALUATION ACQUIRED IN PROFESSIONAL NURSE EDUCATION PROGRAMS.
EMPLOYEES IN THESE POSITIONS
TYPICALLY ARE UNDER THE SUPERVISION OF REGISTERED NURSES OR
PHYSICIANS.
THE POSITION-CLASSIFICATION STANDARDS WHICH THE CIVIL SERVICE
COMMISSION HAS ISSUED FOR THE GS-621 SERIES PROVIDE, IN PERTINENT PART:
FOR POSITIONS AT GS-3 AND ABOVE THE TITLES ARE:
LICENSED PRACTICAL NURSE (OR LICENSED VOCATIONAL NURSE) (SEE
DISCUSSION BELOW.)
PSYCHIATRIC NURSING ASSISTANT
LICENSED PRACTICAL NURSE (OR LICENSED VOCATIONAL NURSE) MAY BE USED
AS THE OFFICIAL TITLE
FOR ANY POSITION AT GRADE GS-3 AND ABOVE THAT IS PROPERLY CLASSIFIED
IN THIS SERIES AND IS
STAFFED BY AN INDIVIDUAL WHO IS LICENSED BY A STATE, TERRITORY, OR
THE DISTRICT OF COLUMBIA TO
USE THE TITLE "LICENSED PRACTICAL NURSE", OR "LICENSED VOCATIONAL
NURSE". THE TITLE APPLIES
TO POSITIONS THAT OTHERWISE WOULD BE TITLED "NURSING ASSISTANT",
"OPERATING ROOM NURSING
ASSISTANT", "PSYCHIATRIC NURSING ASSISTANT" OR "PSYCHIATRIC NURSING
ASSISTANT (DRUG ABUSE)."
AUTHORIZATION OF THIS TITLE DOES NOT IN ANY WAY AFFECT THE HOSPITAL
MANAGEMENT'S AUTHORITY
TO ASSIGN DUTIES AND RESPONSIBILITIES AND MAKE STAFFING DECISIONS.
IT DOES NOT REQUIRE
MANAGEMENT TO LIMIT OR PRESCRIBE SPECIFIC ASSIGNMENTS TO LICENSED
PRACTICAL NURSES, NOR DOES
IT LIMIT MANAGEMENT'S AUTHORITY TO MAKE THE MOST EFFECTIVE USE OF THE
TOTAL NURSING CARE
STAFF.
PSYCHIATRIC NURSING ASSISTANT IS THE TITLE FOR POSITIONS INVOLVING
CARE OF PATIENTS IN
PSYCHIATRIC HOSPITALS, IN PSYCHIATRIC UNITS IN GENERAL MEDICAL AND
SURGICAL HOSPITALS, OR IN
MENTAL HEALTH CLINICS . . . PSYCHIATRIC NURSING ASSISTANT POSITIONS
ARE UNDER THE SUPERVISION
OF REGISTERED NURSES, PSYCHIATRISTS, OR PSYCHIATRIC TECHNICIANS OF
HIGHER GRADE.
THERE ARE GREAT VARIATIONS IN ASSIGNMENTS OF DUTIES AND
RESPONSIBILITIES OF NONPROFESSIONAL
NURSING CARE POSITIONS AMONG DIFFERENT HOSPITALS. FOR EXAMPLE, SOME
HOSPITALS . . . DEPEND
UPON THE TRAINING THAT EMPLOYEES HAVE PREVIOUSLY RECEIVED IN
"APPROVED" LICENSED PRACTICAL
NURSE TRAINING PROGRAMS; IN THESE HOSPITALS ONLY INDIVIDUALS SO
TRAINED ARE ASSIGNED TO
ADMINISTER MEDICATIONS . . .
THE CRITERIA IN THIS STANDARD ARE INTENDED TO PROVIDE GRADE-LEVEL
GUIDANCE FOR NURSING
ASSISTANT AND LICENSED PRACTICAL NURSE POSITIONS REGARDLESS OF THE
WAY IN WHICH MANAGEMENT
ASSIGNS PATIENT CARE WORK . . .
THE POSITION DESCRIPTIONS WHICH DESCRIBE THE DUTIES ACTUALLY
PERFORMED IN THE VA HOSPITAL AT CANANDAIGUA ASSIGN DIFFERENT WORK
RESPONSIBILITIES TO THE TWO GROUPS OF EMPLOYEES. /3/ FROM THE POSITION
DESCRIPTIONS AND THE RECORD, IT APPEARS THAT THE LPN POSITIONS WERE
ESTABLISHED PRIMARILY TO OPERATE "IN CHARGE" OF THE WORK
RESPONSIBILITIES IN ONE BUILDING UNDER THE INDIRECT SUPERVISION OF AN RN
IN ANOTHER BUILDING. LPN'S ARE REQUIRED TO HAVE COMPLETED A ONE YEAR
COURSE OF STUDY IN AN APPROVED SCHOOL OF LICENSED PRACTICAL NURSING AND
TO HAVE RECEIVED A STATE LICENSE TO PRACTICE THEIR OCCUPATION. LPN'S
ARE PERMITTED TO ADMINISTER MEDICINE AFTER COMPLETION OF A SPECIAL VA
MEDICATION COURSE. THE NA POSITIONS, ON THE OTHER HAND, WERE
ESTABLISHED PRIMARILY TO PROVIDE THERAPY TO SMALL GROUPS OF PATIENTS
REQUIRING INTENSIVE AND CONTINUOUS RETRAINING AND REDIRECTION OF
BEHAVIOR. NA'S ARE NOT ASSIGNED "IN CHARGE" RESPONSIBILITY, BUT,
RATHER, WORK UNDER THE DIRECT SUPERVISION OF AN RN WHO HAS CHARGE OF THE
BUILDING. NA'S ARE NEVER PERMITTED TO ADMINISTER MEDICATION. NA'S ARE
NOT REQUIRED TO HAVE HAD SPECIALIZED EDUCATION, TRAINING, OR EXPERIENCE
TO QUALIFY INITIALLY FOR THEIR POSITIONS; THEY ARE GIVEN ON-THE-JOB
TRAINING AND PROGRESS TO MORE RESPONSIBLE DUTIES UPON SUCCESSFUL
COMPLETION OF SPECIALIZED TRAINING AND SELECTION THROUGH MERIT
PROMOTION. LPN'S AND NA'S COMPETE SEPARATELY FOR PROMOTION.
THE HOSPITAL, FOLLOWING A MANPOWER UTILIZATION SURVEY AND IN AN
ATTEMPT TO UPGRADE THE QUALITY OF ITS PATIENT CARE, ATTEMPTED TO PROVIDE
FOR THE ASSIGNMENT OF AN RN TO EVERY BUILDING ON EVERY SHIFT EXCEPT THE
MIDNIGHT SHIFT. ON THE MIDNIGHT SHIFT, RN'S WERE ASSIGNED TO EACH
BUILDING WITH THE EXCEPTION OF THE THREE "OPEN BUILDINGS." /4/ THE
HOSPITAL THEN ASSIGNED ALL THE LPN'S TO "IN CHARGE" RESPONSIBILITY OVER
THESE THREE "OPEN BUILDINGS" DURING THE MIDNIGHT SHAFT. THE
DETERMINATION THAT THE LPN'S SHOULD BE THE PERSONNEL WHO WILL CONDUCT
THE "IN CHARGE" OPERATIONS IN THE "OPEN BUILDINGS" WHEN RN'S WERE NOT
AVAILABLE (I.E., ON THE MIDNIGHT SHIFT) WAS BASED UPON THE HOSPITAL'S
DECISION THAT LPN'S, BECAUSE OF THEIR SUPERIOR TRAINING AND ABILITIES,
WOULD BEST SERVE THE MAINTENANCE OF QUALITY PATIENT CARE BY ASSUMING THE
"IN CHARGE" RESPONSIBILITY WHEN NO RN WAS AVAILABLE. PRIOR TO THIS
DETERMINATION, WHICH PRECIPITATED THE INSTANT GRIEVANCE, LPN'S HAD
EXERCISED THE SAME "IN CHARGE" RESPONSIBILITIES ON OTHER SHIFTS, BUT
THEY DID NOT COMPETE WITH NA'S IN THIS REGARD. ALTHOUGH THE
REASSIGNMENTS WERE EFFECTED ONLY AFTER NOTICE TO THE UNION, /5/ THE
LPN'S OBJECTED TO THE REASSIGNMENTS ON THE GROUND IN EFFECT THAT NA'S
WITH LESS SENIORITY WERE AVAILABLE FOR THE ASSIGNMENTS. THE HOSPITAL
OFFERED THE LPN'S THE ALTERNATIVE OF ACCEPTING THE REASSIGNMENT OR
REMAINING ON THEIR PRESENT SHIFTS TAKING A VOLUNTARY REDUCTION TO GS-5.
/6/ THE LPN'S GRIEVED.
THE ARBITRATOR, FINDING THAT THE HOSPITAL BY ITS ACTION HAD VIOLATED
THE SENIORITY CLAUSE (ARTICLE XVII, SECTION 4) OF THE AGREEMENT,
SUSTAINED THE GRIEVANCE. AS A REMEDY, HE DIRECTED THE HOSPITAL TO
RECOGNIZE THE GRIEVANTS' RIGHTS UNDER THE SENIORITY CLAUSE OF THE
AGREEMENT AND TO CONSIDER OTHERS OF GS-6 RATINGS, EITHER NA'S OR NEWLY
EMPLOYED LPN'S WITH LESSER SENIORITY, FOR THE MIDNIGHT SHIFT BEFORE
ASSIGNING THE GRIEVANTS TO THAT SHIFT AND TOUR OF DUTY.
THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD WITH
THE COUNCIL ALLEGING, IN PART, THAT THE AWARD VIOLATED SECTION 12(B)(5)
OF THE ORDER. /7/ THE COUNCIL ACCEPTED THE PETITION FOR REVIEW.
NEITHER PARTY FILED A BRIEF.
SECTION 2411.37(A) OF THE COUNCIL'S RULES OF PROCEDURE PROVIDES, IN
PERTINENT PART, THAT "AN AWARD OF AN ARBITRATOR SHALL BE MODIFIED, SET
ASIDE IN WHOLE OR IN PART, OR REMANDED ONLY ON THE GROUNDS THAT THE
AWARD VIOLATES . . . THE ORDER . . . "
AS PREVIOUSLY STATED, THE HOSPITAL, PURSUANT TO ITS DECISION TO
UPGRADE THE QUALITY OF ITS PATIENT CARE, DETERMINED THAT THE GS-6 LPN'S
SHOULD BE THE PERSONNEL WHO CONDUCT THE "IN CHARGE" OPERATIONAL
RESPONSIBILITIES IN THE "OPEN BUILDINGS" ON THE MIDNIGHT SHIFT. IN THIS
CONNECTION, THE HOSPITAL CONCLUDED THAT THE LPN'S, BECAUSE OF THEIR
SUPERIOR TRAINING AND ABILITIES, WERE BEST SUITED TO MAINTAIN QUALITY
PATIENT CARE BY ASSUMING "IN CHARGE" RESPONSIBILITIES IN THE ABSENCE OF
RN'S DURING THAT SHIFT. THE ARBITRATOR, HOWEVER, IN SUSTAINING THE
LPN'S GRIEVANCE, DETERMINED THAT THE HOSPITAL HAD VIOLATED THE LPN'S
CONTRACTUAL RIGHTS, AND DIRECTED THE HOSPITAL TO RECOGNIZE THE
GRIEVANTS' SENIORITY RIGHTS AND TO CONSIDER OTHERS OF GS-6 RATINGS,
EITHER NURSING ASSISTANTS OR NEWLY EMPLOYED LPN'S WITH LESSER SENIORITY,
FOR THE MIDNIGHT SHAFT BEFORE ASSIGNING THE GRIEVANTS TO THAT SHIFT.
/8/
THE AGENCY CONTENDS, IN SUBSTANCE, THAT THE AWARD WOULD FORCE
MANAGEMENT TO ASSIGN NA'S TO CONDUCT "IN CHARGE" OPERATIONAL
RESPONSIBILITIES ON THE MIDNIGHT SHIFT CONTRARY TO MANAGEMENT'S
DETERMINATION THAT LPN'S SHOULD BE THE PERSONNEL WHO CONDUCT THESE
OPERATIONS.
THE AGENCY'S EXCEPTION TO THE ARBITRATOR'S AWARD SPECIFICALLY RAISES
THE ISSUE OF WHETHER THE AWARD VIOLATES SECTION 12(B)(5) OF THE ORDER,
WHICH READS AS FOLLOWS:
(B) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN
ACCORDANCE WITH APPLICABLE LAWS
AND REGULATIONS--
(5) TO DETERMINE THE METHODS, MEANS, AND PERSONNEL BY WHICH SUCH
OPERATIONS ARE TO BE
CONDUCTED; . . .
THE COUNCIL, IN TIDEWATER /9/ DEFINED THE TERM "PERSONNEL," AS USED
IN THE ORDER, AS MEANING
. . . THE TOTAL BODY OF PERSONS ENGAGED IN THE PERFORMANCE OF AGENCY
OPERATIONS I.E., THE
COMPOSITION OF THAT BODY IN TERMS OF NUMBERS, TYPES OF OCCUPATIONS
AND LEVELS) AND THE
PARTICULAR GROUPS OF PERSONS THAT MAKE UP THE PERSONNEL CONDUCTING
AGENCY OPERATIONS (E.G.,
MILITARY OR CIVILIAN PERSONNEL; SUPERVISORY OR NONSUPERVISORY
PERSONNEL; PROFESSIONAL OR
NONPROFESSIONAL PERSONNEL; GOVERNMENT PERSONNEL OR CONTRACT
PERSONNEL). IN SHORT, PERSONNEL
MEANS WHO WILL CONDUCT AGENCY OPERATIONS.
THE ARBITRATOR'S AWARD IN THIS CASE WOULD NEGATE MANAGEMENT'S RIGHT
TO DETERMINE WHETHER LPN'S OR NA'S WILL BE THE PERSONNEL RESPONSIBLE FOR
CONDUCTING THE "IN CHARGE" RESPONSIBILITIES IN THE "OPEN BUILDINGS" WHEN
RN'S ARE NOT AVAILABLE (I.E., ON THE MIDNIGHT SHIFT). THE AWARD CLEARLY
WOULD PREVENT THE AGENCY FROM IMPLEMENTING ITS DETERMINATION THAT THE
ASSIGNMENT OF ALL ITS GS-6 LPN'S TO THE "IN CHARGE" OPERATIONAL
RESPONSIBILITY ON THE MIDNIGHT SHIFT WOULD BEST SERVE TO UPGRADE THE
QUALITY OF ITS PATIENT CARE, PATIENT CARE BEING THE BASIC OPERATION OF
THE GOVERNMENTAL ACTIVITY HERE INVOLVED. THE AWARD INTERFERES WITH THE
MANAGEMENT RIGHT TO DETERMINE "WHO" WILL CONDUCT THE PARTICULAR AGENCY
OPERATIONS INVOLVED IN THAT IT MANDATES THE HOSPITAL TO ASSIGN OTHER
TYPES OR CATEGORIES OF PERSONNEL TO CONDUCT "IN CHARGE" OPERATIONAL
RESPONSIBILITIES ON THE MIDNIGHT SHIFT. SUCH RIGHT TO DETERMINE THE
TYPES OF CATEGORIES OF PERSONNEL BY WHICH THE HOSPITAL'S OPERATIONS ARE
TO BE CONDUCTED IS RESERVED TO MANAGEMENT UNDER THE ORDER AND CANNOT BE
BARGAINED AWAY. AS THE COUNCIL STATED IN THIS REGARD IN TIDEWATER:
SECTION 12(B) ESTABLISHES RIGHTS EXPRESSLY RESERVED TO MANAGEMENT
OFFICIALS UNDER ANY
BARGAINING AGREEMENT. THE MANDATORY NATURE OF THIS RESERVATION WAS
UNDERSCORED IN OUR RECENT
DECISION IN THE VA RESEARCH HOSPITAL CASE WHERE, IN INTERPRETING AND
APPLYING SECTION
12(B)(2), WE SAID: "SECTION 12(B)(2) DICTATES THAT IN EVERY LABOR
AGREEMENT MANAGEMENT
OFFICIALS RETAIN THEIR EXISTING AUTHORITY TO TAKE CERTAIN PERSONNEL
ACTIONS, I.E., TO HIRE,
PROMOTE, ETC. THE EMPHASIS IS ON THE RESERVATION OF MANAGEMENT
AUTHORITY TO DECIDE AND ACT ON
THESE MATTERS, AND THE CLEAR IMPORT IS THAT NO RIGHT ACCORDED TO
UNIONS UNDER THE ORDER MAY BE
PERMITTED TO INTERFERE WITH THAT AUTHORITY."
ALTHOUGH THE DECISION IN THE VA RESEARCH HOSPITAL CASE DEALT ONLY
WITH THE INTERPRETATION
AND APPLICATION OF SECTION 12(B)(2), THIS REASONING IS EQUALLY
APPLICABLE TO SECTION
12(B)(5). (FOOTNOTE IN ORIGINAL OMITTED.)
MANAGEMENT'S RESERVED RIGHTS UNDER SECTION 12(B)(5) OF THE ORDER MAY
NOT BE INFRINGED BY AN ARBITRATOR'S AWARD UNDER A NEGOTIATED GRIEVANCE
PROCEDURE. /10/ THE AWARD HERE AT ISSUE (WHICH COMPELS THE HOSPITAL TO
TREAT THE NA'S AS BEING THE FUNCTIONAL EQUIVALENT TO AND INTERCHANGEABLE
WITH THE LPN'S) INTERFERES WITH THE HOSPITAL'S RESERVED RIGHT UNDER
SECTION 12(B)(5) OF THE ORDER TO DETERMINE THE PERSONNEL BY WHICH ITS
NURSING CARE SERVICES ARE TO BE PERFORMED. THEREFORE, THE AWARD CANNOT
BE PERMITTED TO STAND.
FOR THE FOREGOING REASONS, WE FIND THAT THE ARBITRATOR'S AWARD
VIOLATES THE ORDER BY INTERPRETING AND APPLYING THE SENIORITY CLAUSE OF
THE COLLECTIVE BARGAINING AGREEMENT IN SUCH A MANNER AS TO INFRINGE UPON
THE RIGHT RESERVED TO MANAGEMENT UNDER SECTION 12(B)(5) OF THE ORDER.
ACCORDINGLY, PURSUANT TO SECTION 2411.37(B) OF THE COUNCIL'S RULES OF
PROCEDURE, WE SET ASIDE THE ARBITRATOR'S AWARD IN ITS ENTIRETY.
BY THE COUNCIL.
ISSUED: JULY 31, 1974
/1/ ARTICLE XVII, SECTION 4 PROVIDES: "SENIOR EMPLOYEES WILL BE
GIVEN PREFERENCE IN THE SELECTION OF SHIFTS OR TOUR OF DUTY IN ALL
SERVICES AND DIVISIONS."
/2/ THE UNION FILED NO OPPOSITION TO THE AGENCY'S PETITION FOR
REVIEW, NOR ANY BRIEF, IN THIS CASE.
/3/ THE DIFFERENCES BETWEEN THE NATURE AND PURPOSE OF POSITION
DESCRIPTIONS AND THE NATURE AND PURPOSE OF POSITION CLASSIFICATION
STANDARDS, AS THEY ARE USED WITHIN THE FEDERAL GOVERNMENT, ARE PROFOUND.
THE FEDERAL PERSONNEL MANUAL (CHAPTERS 312 AND 511) DESCRIBES THE
NATURE AND PURPOSES OF THE POSITION DESCRIPTIONS AND POSITION
CLASSIFICATION STANDARDS:
AGENCIES HAVE THE DISCRETION IN THE INTEREST OF THE EFFICIENCY OF THE
FEDERAL SERVICE, TO
ASSIGN, CHANGE, OR ELIMINATE PART OR ALL OF THE DUTIES AND
RESPONSIBILITIES THAT HAVE BEEN
GROUPED TOGETHER TO CONSTITUTE A POSITION.
A POSITION IN THE FEDERAL GOVERNMENT IS A SPECIFIC CIVILIAN OFFICE OR
EMPLOYMENT CONSISTING
OF ALL THE DUTIES AND RESPONSIBILITIES CURRENTLY ASSIGNED OR
DELEGATED BY COMPETENT AUTHORITY
AND REQUIRING FULL-TIME OR PART-TIME EMPLOYMENT OF ONE PERSON.
A WRITTEN RECORD OF THE BASIC DUTIES AND RESPONSIBILITIES ASSIGNED TO
A POSITION MUST BE
PREPARED BEFORE AN EMPLOYEE CAN BE HIRED OR ASSIGNED . . . THE
OFFICIAL RECORD OF THIS
INFORMATION IS USUALLY CALLED THE POSITION DESCRIPTION.
A POSITION DESCRIPTION IS A STATEMENT OF THE DUTIES AND
RESPONSIBILITIES COMPRISING THE
WORK ASSIGNED TO A CIVILIAN OFFICER OR EMPLOYEE. A GROUP OF LIKE
POSITIONS MAY BE COVERED BY
A SINGLE DESCRIPTION.
POSITION DESCRIPTIONS ARE THE BASIC AND OFFICIAL SOURCE DOCUMENTS FOR
DETERMINING THE
PROPER CLASS AND GRADE OF POSITIONS UNDER THE GENERAL SCHEDULE.
THE GENERAL SCHEDULE CLASSIFICATION SYSTEM IS A COMPREHENSIVE,
ORDERLY SYSTEM FOR
CLASSIFYING POSITIONS BY OCCUPATIONAL GROUP, SERIES, CLASS, AND GRADE
ACCORDING TO
SIMILARITIES AND DIFFERENCES IN DUTIES, RESPONSIBILITIES, AND
QUALIFICATION REQUIREMENTS. IT
EVOLVES FROM CHAPTER 51 OF TITLE 5, UNITED STATES CODE.
THE LAW REQUIRES THAT AGENCIES CLASSIFY POSITIONS IN CONFORMANCE
WITH, OR CONSISTENT WITH,
STANDARDS PUBLISHED BY THE COMMISSION.
A POSITION CLASSIFICATION STANDARD DESCRIBES THE DUTIES,
RESPONSIBILITIES, AND
QUALIFICATIONS REQUIRED FOR FULL PERFORMANCE FOR A CLASS OF
POSITIONS. IT DISTINGUISHES ONE
CLASS OF POSITIONS FROM ANOTHER UNDER THE POSITION CLASSIFICATION
PLAN.
(THUS, POSITION CLASSIFICATION STANDARDS ARE A) SET OF DOCUMENTS
PUBLISHED BY THE CIVIL
SERVICE COMMISSION WHICH PROVIDES INFORMATION FOR DISTINGUISHING THE
DUTIES, RESPONSIBILITIES,
AND QUALIFICATION REQUIREMENTS OF POSITIONS IN ONE CLASS FROM THOSE
OF POSITIONS IN OTHER
CLASSES, AND WHICH THUS PROVIDES THE CRITERIA FOR PLACING EACH
POSITION IN ITS PROPER
CLASS. THESE STANDARDS DISTINGUISH BOTH IN LEVEL OF DIFFICULTY AND
RESPONSIBILITY AND IN KIND
OF WORK.
/4/ THE ARBITRATOR, IN HIS OPINION, INADVERTENTLY REFERS TO THESE
BUILDINGS AS BEING "NOT OPEN."
/5/ SUCH NOTICE WAS MADE UNDER ARTICLE XVII, SECTION 5 OF THE
AGREEMENT:
ESTABLISHMENT OF NEW TOURS OF DUTY OR CHANGES IN EXISTING TOURS OF
DUTY WILL BE BROUGHT TO
THE ATTENTION OF THE UNION IN ADVANCE AND THEIR VIEWS CONSIDERED
PRIOR TO ANY ACTION TAKEN OR
ANY CHANGES MADE.
/6/ THE CSC POSITION CLASSIFICATION STANDARDS FOR THE GS-621 SERIES
AT GRADE GS-6 PROVIDE, INTER ALIA:
GS-6 PSYCHIATRIC NURSING ASSISTANTS AND LICENSED PRACTICAL NURSES
SERVE IN AN
"IN-CHARGE" CAPACITY ON A WARD OR OTHER PATIENT UNIT, WITH
RESPONSIBILITY FOR ENSURING THAT
ALL NONPROFESSIONAL PERSONAL AND NURSING CARE IS ACCOMPLISHED,
USUALLY ON THE EVENING OR NIGHT
SHIFT. GENERALLY, THIS ASSIGNMENT ALSO INCLUDES RESPONSIBILITY FOR
MEASURING, POURING, AND
ADMINISTERING MEDICATIONS REQUIRED BY PATIENTS ON THE WARD DURING THE
SHIFT. ASSIGNMENTS AT
THE GS-5 LEVEL DO NOT TYPICALLY INVOLVE "IN-CHARGE" OR EQUIVALENT
RESPONSIBILITIES.
/7/ THE AGENCY ALSO ALLEGED VIOLATIONS OF SECTION 11(B) AND SECTIONS
12(B)(1), (2) AND (4) OF THE ORDER; HOWEVER, IT IS NOT NECESSARY FOR
THE COUNCIL TO RULE ON THESE ALLEGATIONS IN VIEW OF OUR DECISION HEREIN.
/8/ IN REACHING THIS CONCLUSION THE ARBITRATOR CITES, AMONG OTHER
THINGS, THE UNION'S RELIANCE "UPON THE GS-6 POSITION-CLASSIFICATION
DESCRIPTION (SIC) IN THE CIVIL SERVICE REGULATIONS WHEREBY NURSING
ASSISTANTS AND LICENSED PRACTICAL NURSES, WHOSE SALARY IS THE SAME, ARE
TREATED ALIKE AS TO DUTIES." AS WAS NOTED ABOVE, THOSE CSC POSITION
CLASSIFICATION STANDARDS PROVIDE:
AUTHORIZATION OF THIS TITLE (LPN) DOES NOT IN ANY WAY AFFECT THE
HOSPITAL MANAGEMENT'S
AUTHORITY TO ASSIGN DUTIES AND RESPONSIBILITIES OR MAKE STAFFING
DECISIONS. IT DOES NOT
REQUIRE MANAGEMENT TO LIMIT OR PRESCRIBE SPECIFIC ASSIGNMENTS TO
LICENSED PRACTICAL NURSES,
NOR DOES IT LIMIT MANAGEMENT'S AUTHORITY TO MAKE THE MOST EFFECTIVE
USE OF THE TOTAL NURSING
CARE STAFF.
THE CRITERIA IN THIS STANDARD ARE INTENDED TO PROVIDE GRADE-LEVEL
GUIDANCE FOR NURSING
ASSISTANT AND LICENSED PRACTICAL NURSE POSITIONS REGARDLESS OF THE
WAY IN WHICH MANAGEMENT
ASSIGNS PATIENT CARE WORK . . .
SEE ALSO INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL F-111, AND
GRIFFIS AIR FORCE BASE, ROME, N.Y., FLRC NO. 71A-30 (APRIL 19, 1973),
REPORT NO. 36 AT PAGES 3-5 OF THE COUNCIL'S DECISION FOR A GENERAL
EXPOSITION BY THE CSC CONCERNING POSITION CLASSIFICATION STANDARDS.
/9/ TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL AND
NAVAL PUBLIC WORKS CENTER, NORFOLK, VIRGINIA, FLRC NO. 71A-56 (JUNE 29,
1973), REPORT NO. 41.
/10/ PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION AND FEDERAL
AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION (BRITTON,
ARBITRATOR) FLRC NO. 74A-1 (JUNE 24, 1974), REPORT NO. 53 AT PAGE 4 OF
THE COUNCIL'S DECISION LETTER.
2 FLRC 157; FLRC NO. 73A-16; JULY 31, 1974.
LOCAL 174 INTERNATIONAL FEDERATION OF
PROFESSIONAL AND TECHNICAL ENGINEERS,
AFL-CIO, CLC
AND
LONG BEACH NAVAL SHIPYARD, LONG BEACH,
CALIFORNIA
(SYNOPSIS) FLRC NO. 73A-16
LOCAL 174 INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL
ENGINEERS, AFL-CIO, CLC, AND LONG BEACH NAVAL SHIPYARD, LONG BEACH
CALIFORNIA. THE NEGOTIABILITY DISPUTE INVOLVED A UNION PROPOSAL
REQUIRING THAT NO UNIT EMPLOYEE BE ASSIGNED ON A TEMPORARY BASIS TO A
POSITION WHICH HE COULD NOT QUALIFY TO OCCUPY ON A PERMANENT BASIS. A
FURTHER QUESTION RAISED WAS WHETHER, UNDER SECTION 15 OF THE ORDER, AN
AGENCY PROPERLY COULD WITHHOLD APPROVAL OF A PROVISION OF THE LOCAL
PARTIES' NEGOTIATED AGREEMENT ON THE GROUND THAT IT DEEMED THE PROVISION
TO BE IN CONFLICT WITH THE ORDER.
COUNCIL ACTION (JULY 31, 1974). THE COUNCIL HELD THAT THE PROPOSAL
WOULD SO CONSTRICT THE AGENCY'S DISCRETION AS TO EFFECTIVELY DENY
MANAGEMENT'S RESERVED RIGHT, UNDER SECTION 12(B)(2) OF THE ORDER, TO
ASSIGN UNIT PERSONNEL. ACCORDINGLY, THE COUNCIL SUSTAINED THE AGENCY
HEAD DETERMINATION THAT THE PROPOSAL IS NONNEGOTIABLE. FURTHER, BASED
ON ITS DECISION IN LOCAL 174 AMERICAN FEDERATION OF TECHNICAL ENGINEERS,
AFL-CIO AND SUPSHIPS, USN 11TH NAVAL DISTRICT, SAN DIEGO, CALIFORNIA,
FLRC NO. 71A-49 (JUNE 29, 1973), REPORT NO. 41, THE COUNCIL REJECTED THE
UNION'S CONTENTION IN THIS CASE THAT THE AGENCY WAS NOT AUTHORIZED TO
DISAPPROVE AN AGREEMENT PROVISION WHICH IT DEEMED TO BE CONTRARY TO THE
ORDER.
LOCAL 174 OF THE INTERNATIONAL FEDERATION OF PROFESSIONAL AND
TECHNICAL ENGINEERS, AFL-CIO, CLC, /1/ IS THE EXCLUSIVE BARGAINING
REPRESENTATIVE FOR A UNIT OF ALL GRADED NONPROFESSIONAL TECHNICAL
EMPLOYEES IN THE ENGINEERING SCIENCES AND RELATED FIELDS, EXCLUDING
SUPERVISORS AND MANAGERIAL EXECUTIVES. THE UNION AND THE ACTIVITY
CONCLUDED A COLLECTIVE BARGAINING AGREEMENT AND FORWARDED IT FOR
APPROVAL PURSUANT TO SECTION 15 OF THE ORDER. /2/
THE DEPARTMENT OF THE NAVY DISAPPROVED A PORTION OF A PROVISION IN
THE AGREEMENT RELATING TO TEMPORARY ASSIGNMENTS, DETAILS AND PROMOTIONS.
THE DISPUTED PROVISION AS UNDERLINED BELOW READS AS FOLLOWS:
WHEN AN EMPLOYEE IN THE UNIT IS TEMPORARILY ASSIGNED TO A HIGHER
LEVEL SUPERVISORY POSITION
FOR 30 DAYS OR MORE, SUCH DETAIL WILL BE DOCUMENTED BY THE
PREPARATION OF A STANDARD FORM
50. IT IT IS NECESSARY TO CONTINUE THE DETAIL BEYOND 60 DAYS, A
TEMPORARY PROMOTION WILL BE
EFFECTED IF THE EMPLOYEE MEETS ALL THE QUALIFICATION STANDARDS. NO
UNIT EMPLOYEE WILL BE
TEMPORARILY ASSIGNED, DETAILED OR PROMOTED TO A POSITION FOR WHICH HE
COULD NOT QUALIFY TO
OCCUPY ON A PERMANENT BASIS.
UPON REFERRAL, THE DEPARTMENT OF DEFENSE DETERMINED THAT THE DISPUTED
PORTION OF THE PROVISION WOULD SERVE TO BAR ASSIGNMENT OR DETAIL OF AN
EMPLOYEE TO ANY POSITION WITHIN OR EXTERNAL TO THE BARGAINING UNIT FOR
WHICH THE EMPLOYEE DID NOT FULLY MEET APPLICABLE QUALIFICATION
REQUIREMENTS AND THEREFORE IS VIOLATIVE OF SECTION 12(B)(2) OF THE ORDER
AND NONNEGOTIABLE. /3/ THE UNION APPEALED FROM THIS DETERMINATION TO
THE COUNCIL UNDER SECTION 11(C)(4) OF THE ORDER AND THE AGENCY FILED A
STATEMENT OF POSITION. /4/
TWO QUESTIONS ARE PRESENTED FOR COUNCIL RESOLUTION IN THIS CASE, AS
FOLLOWS:
(1) WHETHER, UNDER SECTION 15 OF THE ORDER, THE AGENCY PROPERLY COULD
WITHHOLD APPROVAL OF
A PROVISION OF THE LOCAL PARTIES' AGREEMENT BECAUSE IT DEEMED THE
PROVISION TO BE IN CONFLICT
WITH THE ORDER; AND
(2) WHETHER THE DISPUTED PROVISION IS NONNEGOTIABLE UNDER SECTION
12(B)(2) OF THE ORDER.
THE QUESTIONS WILL BE CONSIDERED SEPARATELY BELOW.
1. SECTION 15. THE UNION CONTENDS, IN ESSENCE, THAT, UNDER SECTION
15 OF THE ORDER, AN AGENCY CAN WITHHOLD APPROVAL OF A LOCALLY NEGOTIATED
AND AGREED UPON COLLECTIVE BARGAINING AGREEMENT PROVISION ONLY ON THE
BASIS OF A FINDING THAT THE PROVISION CONFLICTS WITH APPLICABLE LAW,
EXISTING PUBLISHED AGENCY POLICIES AND REGULATIONS, OR REGULATIONS OF
OTHER APPROPRIATE AUTHORITIES. THUS, THE UNION CONCLUDES THAT IN THIS
CASE THE AGENCY HEAD EXCEEDED HIS AUTHORITY BY WITHHOLDING APPROVAL OF
THE AGREEMENT PROVISION HERE INVOLVED ON THE BASIS THAT IT CONFLICTS
WITH MANAGEMENT'S RIGHTS UNDER THE ORDER.
RESOLUTION OF THIS ISSUE IS GOVERNED BY THE COUNCIL'S DECISION IN
LOCAL 174 AMERICAN FEDERATION OF TECHNICAL ENGINEERS, AFL-CIO AND
SUPSHIPS USN, 11TH NAVAL DISTRICT, SAN DIEGO, CALIFORNIA, FLRC 71A-49
(JUNE 29, 1973), REPORT NO. 41. IN THAT CASE, THE COUNCIL HELD (AT P. 3
OF THE DECISION):
IN THE SUBJECT CASE THE AGENCY DISAPPROVED THE AGREEMENT ON THE
GROUND THAT THE TWO
DISPUTED PROVISIONS INFRINGED UPON RESERVED AGENCY RIGHTS UNDER THE
ORDER. ALTHOUGH NOT
ALLUDED TO BY THE UNION, IT SHOULD BE NOTED THAT 'ORDER' IS NOT
SPECIFIED IN SECTION 15 AS A
GROUND FOR DISAPPROVING AN AGREEMENT. HOWEVER, THE ABSENCE OF
SPECIFIC REFERENCE TO THE ORDER
DOES NOT MEAN THAT CONFORMITY TO THE ORDER MAY NOT BE CONSIDERED BY
AN AGENCY HEAD DURING THE
AGREEMENT APPROVAL PROCESS. IN THE LIGHT OF THE PURPOSES OF SECTION
15, TO ASSURE CONFORMITY
OF THE AGREEMENT WITH SUPERVENING REQUIREMENTS, IT IS CLEAR THAT THE
ORDER IS INCLUDED WITHIN
'APPLICABLE LAWS' REFERRED TO IN SECTION 15. MOREOVER, THE
REQUIREMENT THAT AN AGREEMENT BE
IN CONFORMITY WITH THE ORDER IS INHERENT IN THE SECTION 15 APPROVAL
PROCESS BY VIRTUE OF ITS
RELATIONSHIP TO SECTION 11(A) AND (C) OF THE ORDER WHICH RECOGNIZE
THE AUTHORITY OF AN AGENCY
HEAD TO DETERMINE NONNEGOTIABILITY OF PROPOSALS WHICH CONFLICT WITH
THE ORDER. SUCH ACTIONS
BY THE AGENCY DURING THE APPROVAL PROCESS UNDER SECTION 15 ARE, OF
COURSE, SUBJECT TO REVIEW
BY THE COUNCIL UPON COMPLIANCE BY THE PARTIES WITH THE PROVISIONS OF
SECTION 11(C) OF THE
ORDER AND THE COUNCIL'S IMPLEMENTING REGULATIONS.
ACCORDINGLY, WE MUST REJECT THE UNION'S CONTENTION IN THIS CASE THAT
THE AGENCY WAS NOT AUTHORIZED TO DISAPPROVE A CONTRACT PROVISION WHICH
IT DEEMED CONTRARY TO THE ORDER.
2. SECTION 12(B)(2). IN PERTINENT PART, SECTION 12 OF THE ORDER
PROVIDES AS FOLLOWS:
SEC. 12. BASIC PROVISIONS OF AGREEMENTS. EACH AGREEMENT BETWEEN AN
AGENCY AND A LABOR
ORGANIZATION IS SUBJECT TO THE FOLLOWING REQUIREMENTS--
(B) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN
ACCORDANCE WITH APPLICABLE LAWS
AND REGULATIONS--
(2) TO HIRE, PROMOTE, TRANSFER, ASSIGN, AND RETAIN EMPLOYEES IN
POSITIONS WITHIN THE
AGENCY, AND TO SUSPEND, DEMOTE, DISCHARGE, OR TAKE OTHER DISCIPLINARY
ACTION AGAINST
EMPLOYEES;
THE AGENCY DETERMINED THAT THE UNION'S PROPOSED PROVISION IS
NONNEGOTIABLE UNDER SECTION 12(B)(2) OF THE ORDER BECAUSE IT WOULD
INTERFERE WITH THE AGENCY'S RESERVED RIGHT TO ASSIGN EMPLOYEES IN
POSITIONS WITHIN THE AGENCY. IN MORE DETAIL, THE AGENCY ASSERTED THAT
SHORT-TERM ASSIGNMENTS OR DETAILS AS ARE THE SUBJECT OF THE PROVISION
ARE ESSENTIAL MEANS FOR AN AGENCY TO USE TO MEET ITS TEMPORARY
OPERATIONAL NEEDS (E.G., IN ABNORMAL WORKLOAD SITUATIONS, WHEN NEW
MISSION REQUIREMENTS ARE ESTABLISHED, WHEN UNANTICIPATED ABSENCES OCCUR,
AND IN OTHER SITUATIONS REQUIRING SHIFTS OF PERSONNEL FOR RELATIVELY
BRIEF PERIODS). /5/ AND AS STATED BY THE AGENCY:
ALTHOUGH IT IS THE GENERAL PRACTICE TO USE QUALIFIED PERSONNEL
WHEREVER PRACTICABLE, IN
SOME SITUATIONS REQUIRING IMMEDIATE ACTION THERE MAY NOT BE TIME TO
CONDUCT A QUALIFICATIONS
REVIEW AND IN OTHER SITUATIONS FULLY QUALIFIED PERSONS MAY NOT BE
AVAILABLE. NEVERTHELESS,
MANAGEMENT MUST RETAIN THE ABILITY TO MAKE TEMPORARY ASSIGNMENTS AS
NEEDED TO GET THE JOB
DONE.
WE HAVE PREVIOUSLY HELD THAT SECTION 12(B) RIGHTS ARE MANDATORY IN
NATURE AND EXPRESSLY RESERVED TO MANAGEMENT UNDER ANY BARGAINING
AGREEMENT. /6/ AND, AS WE STATED IN OUR VA RESEARCH HOSPITAL /7/
DECISION:
SECTION 12(B)(2) DICTATES THAT IN EVERY LABOR AGREEMENT MANAGEMENT
OFFICIALS RETAIN THEIR
EXISTING AUTHORITY TO TAKE CERTAIN PERSONNEL ACTIONS, I.E., TO HIRE,
PROMOTE, ETC. THE
EMPHASIS IS ON THE RESERVATION OF MANAGEMENT AUTHORITY TO DECIDE AND
ACT ON THESE MATTERS, AND
THE CLEAR IMPORT IS THAT NO RIGHT ACCORDED TO UNIONS UNDER THE ORDER
MAY BE PERMITTED TO
INTERFERE WITH THAT AUTHORITY.
THE UNION PROPOSAL INVOLVED IN THE NEGOTIABILITY DISPUTE IN THE VA
RESEARCH HOSPITAL CASE, WHICH WOULD HAVE ENABLED THE UNION TO OBTAIN
HIGHER LEVEL MANAGEMENT REVIEW OF A SELECTION FOR PROMOTION BEFORE THE
PROMOTION COULD BE EFFECTED, DID NOT APPEAR TO THE COUNCIL AS ONE WHICH
WOULD UNREASONABLY DELAY OR IMPEDE MANAGEMENT'S DISCRETION WITH REGARD
TO SELECTIONS FOR PROMOTION SO AS TO, IN EFFECT, DENY THE RIGHT RESERVED
BY SECTION 12(B)(2). /8/ INSTEAD, IT DEALT WITH PROCEDURES WHICH
MANAGEMENT WILL OBSERVE IN REACHING THE DECISION CONCERNING PROMOTIONS.
THE QUESTION BEFORE THE COUNCIL, THEN, IS WHETHER THE PORTION OF THE
AGREEMENT PROVISION HERE AT ISSUE WOULD SO CONSTRICT MANAGEMENT'S
ABILITY TO ASSIGN EMPLOYEES AS TO, IN EFFECT, DENY THE RIGHT RESERVED BY
SECTION 12(B)(2).
THE PROVISION WOULD DENY MANAGEMENT THE RIGHT TO TEMPORARILY ASSIGN,
DETAIL, OR PROMOTE EMPLOYEES TO POSITIONS FOR WHICH THEY COULD NOT
QUALIFY TO OCCUPY ON A PERMANENT BASIS. THUS, THE IMPACT OF THE
LANGUAGE WOULD BE THAT IN THE EVENT NO EMPLOYEES ARE QUALIFIED TO OCCUPY
THE POSITIONS ON A PERMANENT BASIS, MANAGEMENT WOULD BE UNABLE TO ASSIGN
THE DUTIES TO ANY EMPLOYEE. IT IS CLEAR, THEREFORE, WE ARE NOT DEALING
WITH PROCEDURES FOR HANDLING DETAILS OR EVEN FOR GUARANTEEING THAT
"QUALIFIED" EMPLOYEES ARE ASSIGNED OR DETAILED BEFORE "UNQUALIFIED"
EMPLOYEES, IF THERE WERE TIME AVAILABLE TO DETERMINE SUCH
QUALIFICATIONS.
AS NOTED IN THE AGENCY'S DECISION LETTER CONCERNING THE NEGOTIABILITY
OF THE LANGUAGE IN QUESTION, THERE MAY BE SITUATIONS REQUIRING IMMEDIATE
ACTION IN WHICH THERE MAY NOT BE TIME TO CONDUCT A QUALIFICATION REVIEW,
AND THERE MAY BE TIMES WHEN WORK MUST BE DONE BUT NO EMPLOYEE IS
AVAILABLE WHO WOULD "QUALIFY TO OCCUPY (THE POSITION) ON A PERMANENT
BASIS."
THUS, IN THIS CASE, UNLIKE IN VA RESEARCH HOSPITAL, THE UNION'S
PROPOSAL BY REQUIRING THAT ASSIGNMENT OF A BARGAINING UNIT EMPLOYEE ON A
TEMPORARY BASIS COULD NOT BE MADE UNLESS THE EMPLOYEE WAS FULLY
QUALIFIED TO FILL THE PARTICULAR POSITION IN QUESTION ON A PERMANENT
BASIS WOULD SO CONSTRICT MANAGEMENT'S DISCRETION IN THE EXERCISE OF A
RIGHT RETAINED UNDER SECTION 12(B)(2), I.E., THE RIGHT TO ASSIGN
PERSONNEL, AS TO EFFECTIVELY DENY THAT RIGHT IN THE CIRCUMSTANCES HERE
INVOLVED. ACCORDINGLY, INSOFAR AS THE PROPOSAL AFFECTS MANAGEMENT'S
RIGHT TO ASSIGN, IT MUST BE CONSIDERED NONNEGOTIABLE.
BASED ON THE REASONS SET FORTH ABOVE, AND PURSUANT TO SECTION 2411.27
OF THE COUNCIL'S RULES AND REGULATIONS, WE FIND THAT THE AGENCY HEAD'S
DETERMINATION THAT THE UNION PROPOSAL HERE INVOLVED IS NONNEGOTIABLE
UNDER SECTION 12(B)(2) OF THE ORDER WAS PROPER AS IT PERTAINS TO THE
TEMPORARY ASSIGNMENT OR DETAIL OF BARGAINING UNIT PERSONNEL AND MUST,
THEREFORE, BE SUSTAINED.
BY THE COUNCIL.
ISSUED: JULY 31, 1974
/1/ THE NAME OF THE UNION APPEARS AS OFFICIALLY CHANGED DURING THE
PENDENCY OF THIS PROCEEDING.
/2/ SECTION 15 OF THE ORDER PROVIDES:
SEC. 15. APPROVAL OF AGREEMENTS. AN AGREEMENT WITH A LABOR
ORGANIZATION AS THE EXCLUSIVE
REPRESENTATIVE OF EMPLOYEES IN A UNIT IS SUBJECT TO THE APPROVAL OF
THE HEAD OF THE AGENCY OR
AN OFFICIAL DESIGNATED BY HIM. AN AGREEMENT SHALL BE APPROVED IF IT
CONFORMS TO APPLICABLE
LAWS, EXISTING PUBLISHED AGENCY POLICIES AND REGULATIONS (UNLESS THE
AGENCY HAS GRANTED AN
EXCEPTION TO A POLICY OR REGULATION) AND REGULATIONS OF OTHER
APPROPRIATE AUTHORITIES. A
LOCAL AGREEMENT SUBJECT TO A NATIONAL OR OTHER CONTROLLING AGREEMENT
AT A HIGHER LEVEL SHALL
BE APPROVED UNDER THE PROCEDURE OF THE CONTROLLING AGREEMENT, OR, IF
NONE, UNDER AGENCY
REGULATIONS.
/3/ THE DOD ALSO RELIED ON SECTION 12(B)(5) OF THE ORDER AS A BASIS
FOR HOLDING THE PROVISION NONNEGOTIABLE. IN VIEW OF OUR DECISION HEREIN
WE FIND IT UNNECESSARY TO REACH AND, THEREFORE, MAKE NO RULING AS TO THE
DISPUTED PROVISION VIS-A-VIS SECTION 12(B)(5).
/4/ THERE IS NO APPARENT DISPUTE BETWEEN THE PARTIES WITH REGARD TO
THE TEMPORARY PROMOTION ASPECT OF THE PROPOSAL. AS INDICATED, TEMPORARY
PROMOTIONS WERE NOT ADDRESSED IN THE AGENCY HEAD DETERMINATION. NOR
WERE SUCH PROMOTIONS ADVERTED TO IN THE AGENCY'S STATEMENT OF POSITION.
/5/ "TEMPORARY ASSIGNMENTS" OR "DETAILS" ARE, IN THE CONTEXT OF
SECTION 12(B)(2) OF THE ORDER, THE SAME PERSONNEL ACTION, I.E.,
ASSIGNMENTS. NOTHING IN THE ORDER INDICATES THAT THE RESERVATION OF
AUTHORITY BY SECTION 12(B)(2), EXCEPT AS MAY BE PROVIDED BY APPLICABLE
LAWS OR REGULATIONS, IS IN ANY WAY DEPENDENT UPON THE INTENDED DURATION
OF THE PARTICULAR PERSONNEL ACTION INVOLVED.
/6/ TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL AND
NAVAL PUBLIC WORKS CENTER, NORFOLK, VIRGINIA, FLRC NO. 71A-56 (JUNE 29,
1973), REPORT NO. 41, PP. 4-5.
/7/ VETERANS ADMINISTRATION INDEPENDENT SERVICE EMPLOYEES UNION AND
VETERANS ADMINISTRATION RESEARCH HOSPITAL, CHICAGO, ILLINOIS, FLRC NO.
71A-31 (NOVEMBER 22, 1972), REPORT NO. 31, P. 3.
/8/ ID.
2 FLRC 154; FLRC NO. 74A-10; JUNE 28, 1974.
MR. CLYDE M. WEBBER
NATIONAL PRESIDENT
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
1325 MASSACHUSETTS AVENUE, NW.
WASHINGTON, D.C. 20005
(SYNOPSIS) FLRC NO. 74A-10
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, SOCIAL SECURITY
ADMINISTRATION, NEW YORK PAYMENT CENTER, FLUSHING, NEW YORK, ASSISTANT
SECRETARY CASE NO. 30-5150 (GP). THE ASSISTANT SECRETARY, UPHOLDING THE
REGIONAL ADMINISTRATOR, DETERMINED THAT THE CONDUCT WHICH THE ACTIVITY
SOUGHT TO GRIEVE (ALLEGED INTERFERENCE BY AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES LOCAL 1760 WITH THE ACTIVITY'S RIGHT TO DISCIPLINE
SUPERVISORS) IS SUBJECT TO THE GRIEVANCE PROCEDURE IN THE PARTIES'
EXISTING AGREEMENT. THE UNION APPEALED TO THE COUNCIL ALLEGING THAT THE
ASSISTANT SECRETARY'S DECISION PRESENTS A MAJOR POLICY ISSUE,
PRINCIPALLY BECAUSE THE DECISION "VIOLATES THE EMPLOYEES RIGHT OF FREE
SPEECH AS GUARANTEED BY THE CONSTITUTION, THE LLOYD-LAFOLLETTE ACT AND
SECTION 1(A) OF THE EXECUTIVE ORDER."
COUNCIL ACTION (JUNE 28, 1974). THE COUNCIL DETERMINED THAT THE
ASSISTANT SECRETARY'S DECISION DID NOT PRESENT A MAJOR POLICY ISSUE
BECAUSE THE UNION PETITION FAILED TO DEMONSTRATE THAT THE DECISION HAS
IN ANY MANNER VIOLATED THE RIGHTS OF EMPLOYEES UNDER THE ORDER, THE
CONSTITUTION, OR THE LLOYD-LAFOLLETTE ACT. IN THIS CONNECTION, THE
COUNCIL NOTED THAT THE ASSISTANT SECRETARY'S DECISION IS LIMITED TO THE
THRESHOLD DETERMINATION THAT THE GRIEVANCE IS SUBJECT TO THE NEGOTIATED
GRIEVANCE PROCEDURE; AND THAT NEITHER THE ASSISTANT SECRETARY NOR THE
COUNCIL HAS CONSIDERED OR PASSED UPON THE MERITS OF THE GRIEVANCE, WHICH
IS LEFT TO SUBSEQUENT DETERMINATION UNDER THE NEGOTIATED GRIEVANCE
PROCEDURE. THE COUNCIL FURTHER DETERMINED THAT THE PETITION NEITHER
ALLEGED, NOR DID IT APPEAR, THAT THE ASSISTANT SECRETARY'S DECISION WAS
ARBITRARY AND CAPRICIOUS. ACCORDINGLY, THE COUNCIL DENIED REVIEW OF THE
UNION'S APPEAL PURSUANT TO SECTION 2411.12 OF THE COUNCIL'S RULES OF
PROCEDURE (5 CFR 2411.12). THE COUNCIL LIKEWISE DENIED THE UNION'S
REQUEST FOR STAY PURSUANT TO SECTION 2411.47(E) OF THE COUNCIL'S RULES
(5 CFR 2411.47(E)).
DEAR MR. WEBBER:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE, AND THE
AGENCY'S OPPOSITION THERETO.
THE ASSISTANT SECRETARY DENIED YOUR REQUEST TO SET ASIDE THE REGIONAL
ADMINISTRATOR'S REPORT AND FINDING THAT THE MATTER IN DISPUTE BETWEEN
THE ACTIVITY AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (AFGE)
LOCAL 1760 IS SUBJECT TO THE GRIEVANCE PROCEDURE IN THE EXISTING
AGREEMENT. THE ASSISTANT SECRETARY FOUND THAT THE CONDUCT WHICH THE
ACTIVITY SOUGHT TO GRIEVE (ALLEGED INTERFERENCE BY AFGE LOCAL 1760 WITH
THE ACTIVITY'S RIGHT TO DISCIPLINE SUPERVISORS) "IS A MATTER WHICH COMES
WITHIN THE SCOPE OF ARTICLE 4, SECTION (A) OF THE PARTIES' EXISTING
AGREEMENT AS WELL AS ARTICLE 1 AND ARTICLE 3, SECTION (B)(2) OF SUCH
AGREEMENT."
IN YOUR PETITION FOR REVIEW YOU CONTEND THAT THE DECISION OF THE
ASSISTANT SECRETARY PRESENTS A MAJOR POLICY ISSUE, PRINCIPALLY, THAT THE
DECISION "VIOLATES THE EMPLOYEES RIGHT OF FREE SPEECH AS GUARANTEED BY
THE CONSTITUTION, THE LLOYD-LAFOLLETTE ACT AND SECTION 1(A) OF THE
EXECUTIVE ORDER."
IN THE COUNCIL'S OPINION, THE ASSISTANT SECRETARY'S DECISION DOES NOT
PRESENT A MAJOR POLICY ISSUE; YOUR PETITION FAILS TO DEMONSTRATE THAT
THE ASSISTANT SECRETARY'S DECISION HAS, IN ANY MANNER, VIOLATED THE
RIGHTS OF EMPLOYEES UNDER THE ORDER, THE CONSTITUTION, OR THE
LLOYD-LAFOLLETTE ACT. SECTION 13 OF THE ORDER PROVIDES, IN PERTINENT
PART:
"AN AGREEMENT BETWEEN AN AGENCY AND A LABOR ORGANIZATION SHALL
PROVIDE A PROCEDURE, APPLICABLE ONLY TO THE UNIT, FOR THE CONSIDERATION
OF GRIEVANCES OVER THE INTERPRETATION OR APPLICATION OF THE AGREEMENT";
AND "QUESTIONS THAT CANNOT BE RESOLVED BY THE PARTIES AS TO WHETHER OR
NOT A GRIEVANCE IS ON A MATTER SUBJECT TO THE GRIEVANCE PROCEDURE IN AN
EXISTING AGREEMENT . . . MAY BE REFERRED TO THE ASSISTANT SECRETARY FOR
DECISION." THUS, THE ASSISTANT SECRETARY'S DECISION IN THE SUBJECT CASE
IS LIMITED TO THE THRESHOLD DETERMINATION THAT THE ACTIVITY'S GRIEVANCE
IS SUBJECT TO THE NEGOTIATED GRIEVANCE PROCEDURE BECAUSE IT CONCERNS A
MATTER OF INTERPRETATION AND APPLICATION OF THE PARTIES' AGREEMENT; AND
IT IS CLEAR THAT SUCH DECISION PRESENTS NO MAJOR POLICY ISSUE. OF
COURSE, IN SO DECIDING, THE ASSISTANT SECRETARY DID NOT CONSIDER AND DID
NOT PASS UPON THE MERITS OF THE ACTIVITY'S GRIEVANCE; THAT IS LEFT TO
SUBSEQUENT DETERMINATION UNDER THE NEGOTIATED GRIEVANCE PROCEDURE.
LIKEWISE, THE COUNCIL IS NOT, IN ANY WAY, CONSIDERING OR PASSING UPON
THE MERITS OF THE ACTIVITY'S GRIEVANCE.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT PRESENT A MAJOR
POLICY ISSUE AND SINCE YOU NEITHER ALLEGE, NOR DOES IT APPEAR, THAT THE
DECISION IS ARBITRARY AND CAPRICIOUS, YOUR APPEAL FAILS TO MEET THE
REQUIREMENTS FOR REVIEW AS PROVIDED UNDER SECTION 2411.12 OF THE
COUNCIL'S RULES OF PROCEDURE.
ACCORDINGLY, REVIEW OF YOUR APPEAL IS HEREBY DENIED. LIKEWISE, YOUR
REQUEST FOR STAY PURSUANT TO SECTION 2411.47(E) OF THE COUNCIL'S RULES
IS ALSO DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
R. J. PARISI
SSA
2 FLRC 151; FLRC NO. 74A-37; JUNE 24, 1974.
MS. JANET COOPER
STAFF ATTORNEY
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES
1737 H STREET, NW.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 74A-37
DEPARTMENT OF AGRICULTURE, OFFICE OF INFORMATION SYSTEMS, KANSAS
CITY, MISSOURI, A/SLMR NO. 387. NATIONAL FEDERATION OF FEDERAL
EMPLOYEES (NFFE) APPEALED TO THE COUNCIL FROM THE ASSISTANT SECRETARY'S
FINDING THAT THE RECORD IN THE SUBJECT CASE IS INADEQUATE TO DETERMINE
THE APPROPRIATENESS OF THE UNIT SOUGHT BY NFFE, AND HIS REMAND TO THE
ASSISTANT REGIONAL DIRECTOR TO SECURE ADDITIONAL EVIDENCE IN THIS
REGARD. NFFE FURTHER REQUESTED A STAY OF THE ASSISTANT SECRETARY'S
DECISION AND REMAND.
COUNCIL ACTION (JUNE 24, 1974). THE COUNCIL DENIED REVIEW OF NFFE'S
INTERLOCUTORY APPEAL, WITHOUT PREJUDICE TO THE RENEWAL OF ITS
CONTENTIONS IN A PETITION DULY FILED WITH THE COUNCIL AFTER A FINAL
DECISION ON THE ENTIRE CASE BY THE ASSISTANT SECRETARY. THE COUNCIL
LIKEWISE DENIED NFFE'S REQUEST FOR A STAY.
DEAR MS. COOPER:
REFERENCE IS MADE TO YOUR PETITION FOR REVIEW, AND YOUR REQUEST FOR
STAY, OF THE ASSISTANT SECRETARY'S DECISION AND REMAND IN THE
ABOVE-ENTITLED REPRESENTATION CASE.
THE ASSISTANT SECRETARY FOUND THE RECORD IN THE SUBJECT CASE DOES NOT
PROVIDE AN ADEQUATE BASIS TO DETERMINE THE APPROPRIATENESS OF THE UNIT
SOUGHT BY YOUR ORGANIZATION AND REMANDED THE CASE TO THE ASSISTANT
REGIONAL DIRECTOR IN ORDER TO SECURE ADDITIONAL EVIDENCE IN THIS REGARD.
NO FINAL DISPOSITION WAS THEREFORE RENDERED BY THE ASSISTANT SECRETARY
IN THE CASE.
SECTION 2411.41 OF THE COUNCIL'S RULES OF PROCEDURE PROHIBITS
INTERLOCUTORY APPEALS. THAT IS, THE COUNCIL WILL NOT CONSIDER A
PETITION FOR REVIEW OF AN ASSISTANT SECRETARY'S DECISION UNTIL A FINAL
DECISION HAS BEEN RENDERED ON THE ENTIRE PROCEEDING BEFORE HIM, AS
PERTAINS TO THE APPELLANT. MORE PARTICULARLY, IN A CASE AS HERE
INVOLVED, THE COUNCIL WILL ENTERTAIN AN APPEAL ONLY AFTER A
CERTIFICATION OF REPRESENTATIVE OR OF THE RESULTS OF THE ELECTION HAS
ISSUED, OR AFTER OTHER FINAL DISPOSITION HAS BEEN MADE OF THE ENTIRE
REPRESENTATION MATTER, BY THE ASSISTANT SECRETARY.
SINCE A FINAL DECISION HAS NOT BEEN SO RENDERED IN THE PRESENT CASE,
AND APART FROM OTHER CONSIDERATIONS, THE COUNCIL HAS DIRECTED THAT YOUR
APPEAL BE DENIED, WITHOUT PREJUDICE TO THE RENEWAL OF YOUR CONTENTIONS
IN A PETITION DULY FILED WITH THE COUNCIL AFTER A FINAL DECISION ON THE
ENTIRE CASE BY THE ASSISTANT SECRETARY. YOUR FURTHER REQUEST FOR STAY
PENDING DECISION ON YOUR APPEAL IS THEREFORE LIKEWISE DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
J. TOSINO
AGRICULTURE
2 FLRC 145; FLRC NO. 74A-1; JUNE 21, 1974.
MR. R. J. ALFULTIS
DIRECTOR OF PERSONNEL AND
TRAINING
OFFICE OF THE SECRETARY
DEPARTMENT OF TRANSPORTATION
WASHINGTON, D.C. 20590
(SYNOPSIS) FLRC NO. 74A-1
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION AND FEDERAL
AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION (BRITTON,
ARBITRATOR). THE QUESTION BEFORE THE ARBITRATOR WAS WHETHER A LETTER OF
WARNING ISSUED TO THE INDIVIDUAL GRIEVANT, AFTER A "SYSTEM DEVIATION,"
VIOLATED THE PROVISION IN THE BARGAINING AGREEMENT THAT, IN THE EVENT OF
"A DIFFERENCE IN PROFESSIONAL OPINION BETWEEN THE EMPLOYEE AND THE
SUPERVISOR," THE EMPLOYEE SHALL COMPLY WITH THE SUPERVISOR'S
INSTRUCTIONS AND THE SUPERVISOR SHALL BE RESPONSIBLE FOR HIS OWN
DECISION. THE ARBITRATOR FOUND THAT THE "SYSTEM DEVIATION" OCCURRED
CONTEMPORANEOUSLY WITH THE SUPERVISOR'S DENIAL OF SEVERAL REQUESTS FOR
ASSISTANCE BY THE GRIEVANT; THAT THERE WAS A "DIFFERENCE IN
PROFESSIONAL OPINION" BETWEEN THE GRIEVANT AND SUPERVISOR WITHIN THE
MEANING OF THE AGREEMENT; THAT THE GRIEVANT COMPLIED WITH THE
SUPERVISOR'S INSTRUCTIONS; THAT THE REQUESTS FOR ASSISTANCE WERE
LEGITIMATE AND BONA FIDE, AND THE GRIEVANT WAS NOT SHOWN TO HAVE ACTED
NEGLIGENTLY OR CARELESSLY; AND THAT THE LETTER OF WARNING THEREBY
VIOLATED THE AGREEMENT. THE AGENCY EXCEPTED TO THE ARBITRATOR'S AWARD,
ALLEGING IN EFFECT THAT (1) THE OPINION ON WHICH THE AWARD IS BASED
VIOLATES SECTION 12(B) OF THE ORDER; AND (2) THE ARBITRATOR
MISINTERPRETED THE SUBJECT PROVISION OF THE AGREEMENT, AND AS SO
INTERPRETED AND APPLIED IN THE AWARD, THIS PROVISION VIOLATES SECTION
12(B) OF THE ORDER.
COUNCIL ACTION (JUNE 21, 1974). THE COUNCIL DETERMINED THAT, WITH
REGARD TO THE FIRST EXCEPTION, IT DID NOT APPEAR FROM THE FACTS AND
CIRCUMSTANCES DESCRIBED IN THE PETITION THAT THE AWARD VIOLATES THE
ORDER; AND AS TO THE SECOND EXCEPTION, THE PETITION FURTHER DID NOT
STATE A GROUND UPON WHICH REVIEW OF AN ARBITRATOR'S AWARD WILL BE
GRANTED. THE COUNCIL THEREFORE DENIED REVIEW OF THE AGENCY'S PETITION
BECAUSE IT FAILED TO MEET THE STANDARDS SET FORTH IN SECTION 2411.32 OF
THE COUNCIL'S RULES OF PROCEDURE (5 CFR 2411.32). LIKEWISE, THE
AGENCY'S REQUEST FOR A STAY WAS DENIED UNDER SECTION 2411.47(D) OF THE
COUNCIL'S RULES (5 CFR 2411.47(D)).
DEAR MR. ALFULTIS:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ARBITRATOR'S AWARD, AND THE UNION'S OPPOSITION THERETO, IN THE
ABOVE-ENTITLED CASE.
IN HIS DECISION, THE ARBITRATOR FOUND THAT DURING THE TOUR OF DUTY
HERE INVOLVED, WHILE THE GRIEVANT AIR TRAFFIC CONTROLLER WAS ASSIGNED TO
WORK TWO POSITIONS, THE GRIEVANT DETERMINED THAT HE WAS SO BUSY THAT HE
NEEDED ASSISTANCE. THEREFORE, DURING THE ENSUING TEN TO FIFTEEN
MINUTES, HE MADE SEVERAL REQUESTS FOR ASSISTANCE, BUT THESE REQUESTS
WERE DENIED BY THE SUPERVISOR IN CHARGE. CONTEMPORANEOUSLY, THE
GRIEVANT FAILED TO TAKE CERTAIN ACTIONS WITH REGARD TO AN AIRCRAFT IN
THE AIRSPACE UNDER HIS CONTROL WHICH RESULTED IN A "SYSTEM DEVIATION",
I.E., A SITUATION WHEREIN THE POTENTIAL FOR A MID-AIR COLLISION WAS
CREATED DUE TO AN AIRCRAFT BEING IN A PLACE WHERE IT SHOULD NOT HAVE
BEEN. THE AGENCY'S INVESTIGATION OF THE INCIDENT RESULTED IN A
DETERMINATION THAT THE GRIEVANT'S "FAILURE TO COMPLETE THE REQUIRED
COORDINATION . . . WAS A DIRECT CAUSE OF THE DEVIATION." THE GRIEVANT
RECEIVED A LETTER OF WARNING FROM THE FACILITY CHIEF AND, SHORTLY
THEREAFTER, FILED A GRIEVANCE ALLEGING THAT THE ISSUANCE OF THE LETTER
OF WARNING VIOLATED ARTICLE 55, SECTION 1 OF THE NEGOTIATED AGREEMENT.
/1/ THE PARTIES SUBMITTED THE GRIEVANCE TO ARBITRATION UNDER THE
AGREEMENT.
THE ARBITRATOR DETERMINED THAT, WITHIN THE MEANING OF ARTICLE 55,
SECTION 1, THERE HAD BEEN "A DIFFERENCE IN PROFESSIONAL OPINION" BETWEEN
THE GRIEVANT AND THE SUPERVISOR; THE GRIEVANT HAD COMPLIED WITH THE
SUPERVISOR'S INSTRUCTIONS; AND THUS, THE AGENCY VIOLATED ARTICLE 55,
SECTION 1 BY ISSUING THE LETTER OF WARNING HOLDING THE GRIEVANT
RESPONSIBLE FOR THE "SYSTEM DEVIATION." THE ARBITRATOR THEREFORE
SUSTAINED THE GRIEVANCE AND DIRECTED THE AGENCY TO REMOVE THE LETTER OF
WARNING FROM THE GRIEVANT'S FILE.
UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE, REVIEW OF
AN ARBITRATOR'S AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON
THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE
EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES
APPLICABLE LAW, APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS
SIMILAR TO THOSE UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE
SUSTAINED BY COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS."
THE AGENCY EXCEPTS TO THE AWARD ON TWO GROUNDS, I.E., (1) THE OPINION
UPON WHICH THE AWARD IS BASED VIOLATES SECTION 12(B)(5) OF THE ORDER;
/2/ AND (2) THE ARBITRATOR MISINTERPRETED ARTICLE 55, SECTION 1 OF THE
AGREEMENT.
AS TO (1), THE AGENCY CLAIMS IN SUBSTANCE THAT THE DECISION WILL
RESULT IN SUPERVISORS BEING "INHIBITED IN THEIR DECISIONS ON PROPER
STAFFING LEVELS BECAUSE A DECISION AT ODDS WITH A CONTROLLER'S
ASSESSMENT OF THE WORK SITUATION CARRIES WITH IT A GRANT OF IMMUNITY;"
AND, THAT IMPLEMENTATION OF THE DECISION WILL AUTHORIZE EMPLOYEES TO
PARTICIPATE IN DETERMINING THE PERSONNEL WHO WILL CONDUCT AGENCY
OPERATIONS AND DIRECTING THEIR OWN WORK, MATTERS RESERVED TO MANAGEMENT
BY SECTION 12(B) OF THE ORDER.
AS TO (2), THE AGENCY CLAIMS THAT THE "PROFESSIONAL OPINION" REFERRED
TO IN ARTICLE 55, SECTION 1 PERTAINS ONLY TO CONTROLLERS PERFORMANCE AND
NOT TO PERSONNEL ASSIGNMENTS OR STAFFING. IN THIS REGARD, THE AGENCY
ASSERTS, IN EFFECT, THAT AS INTERPRETED AND SO APPLIED BY THE
ARBITRATOR, ARTICLE 55 CONFLICTS WITH MANAGEMENT'S RETAINED RIGHTS UNDER
SECTION 12(B)(5) OF THE ORDER.
FOR THE REASONS WHICH FOLLOW, IT IS THE COUNCIL'S VIEW THAT THE
AGENCY'S PETITION DOES NOT MEET THE REQUIREMENTS FOR REVIEW PRESCRIBED
IN SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE.
WITH REGARD TO THE FIRST EXCEPTION, IT DOES NOT APPEAR FROM THE FACTS
AND CIRCUMSTANCES PRESENTED THAT THE ARBITRATOR'S FINDINGS AND DECISION,
AS PREVIOUSLY SET FORTH, INFRINGE ON RIGHTS RESERVED TO MANAGEMENT BY
THE ORDER. CLEARLY, THE ARBITRATOR DID NOT PURPORT TO AUTHORIZE
EMPLOYEES TO PARTICIPATE IN MANAGEMENT DECISIONS ON PERSONNEL ASSIGNMENT
AND WORKLOAD MATTERS. RATHER, HE WAS CONCERNED ONLY WITH APPLYING
ARTICLE 55 OF THE PARTIES' AGREEMENT WHICH HE INTERPRETED AS FIXING
RESPONSIBILITY FOR THE CONSEQUENCES OF SUCH DECISIONS ONCE MADE BY
MANAGEMENT.
AS TO THE AGENCY'S CONTENTION THAT, AS A RESULT OF THE ARBITRATOR'S
DECISION, SUPERVISORS WILL BE INHIBITED IN MAKING DECISIONS ON PROPER
STAFFING LEVELS, SUCH A CLAIM IS MERELY SPECULATIVE IN NATURE. IN ANY
EVENT, INHIBITION OF SUPERVISORS WOULD NOT FOLLOW SIMPLY AS THE RESULT
OF A SUPERVISOR'S ASSUMING RESPONSIBILITY FOR HIS DECISION UNDER ARTICLE
55. RATHER, IT WOULD RESULT FROM A CONCERN BY THE SUPERVISOR AS TO THE
CONSEQUENCES OF SUCH RESPONSIBILITY, E.G., DISCIPLINARY ACTION AGAINST
HIM. THUS, THE CAUSAL FACTORS RELATING TO THE CLAIMED INHIBITION ARE
MATTERS UNDER THE CONTROL OF AGENCY MANAGEMENT, AND DO NOT ESTABLISH A
VIOLATION OF SECTION 12(B)(5).
MOREOVER, THE AGENCY'S CLAIM IN THIS REGARD, THAT A SUPERVISOR'S
DECISION AT ODDS WITH A CONTROLLER'S "PROFESSIONAL OPINION" WILL CONFER
IMMUNITY ON THE CONTROLLER, FINDS NO SUPPORT IN THE ARBITRATOR'S
DECISION. ON THE CONTRARY, THE ARBITRATOR EXPLICITLY STATES IN HIS
DECISION THAT HE DOES NOT INTERPRET ARTICLE 55 AS ABSOLUTELY SHIELDING A
CONTROLLER FROM DISCIPLINE. THUS, THE ARBITRATOR STATES IN HIS AWARD AS
FOLLOWS:
THIS IS NOT TO SAY THAT ARTICLE 55 CREATES ABSOLUTE IMMUNITY,
REGARDLESS OF THE FACTS OF THE
CASE, THE DEGREE OF CULPABILITY, OR THE MAGNITUDE OF THE ERROR, FOR A
CONTROLLER ONCE HE
RENDERS A PROFESSIONAL OPINION. FOR EXAMPLE, IF A CONTROLLER'S
NEGLIGENCE OR CARELESSNESS IS
THE CASUALLY (SIC) RELATED FACTOR IN A MID-AIR COLLISION, ARTICLE 55
WOULD NOT PROTECT A
CONTROLLER WHO HAS RENDERED A 'PROFESSIONAL OPINION' IN THE CASE, AND
WHO SEEKS TO SHIELD
HIMSELF FROM DISCIPLINE. HERE, HOWEVER, ONLY THE FACTS OF THIS CASE
ARE OF CONCERN TO THE
ARBITRATOR, I.E., MR. KENNEDY'S ACTIONS VERSUS THOSE OF MR. CLARKE.
AS TO THIS, THERE IS NO
CONVINCING EVIDENCE IN THE RECORD THAT MR. KENNEDY ACTED NEGLIGENTLY
OR CARELESSLY. TO THE
CONTRARY, HIS 'PROFESSIONAL OPINION', UPON RECOGNIZING THE DANGERS OF
HIS TOO-BUSY WORKLOAD,
AND REQUESTING ASSISTANCE, IS SHOWN TO HAVE BEEN LEGITIMATE AND BONA
FIDE, AND IN THE
CONSIDERED JUDGMENT OF THE ARBITRATOR SHOULD THEREFORE BE UPHELD.
ACCORDINGLY, THE AGENCY'S FIRST EXCEPTION THAT THE AWARD VIOLATES THE
ORDER DOES NOT APPEAR TO BE SUPPORTED BY THE FACTS AND CIRCUMSTANCES
DESCRIBED IN THE AGENCY'S PETITION, AS REQUIRED BY SECTION 2411.32.
THE SECOND EXCEPTION, AS ALREADY MENTIONED, ALLEGES THAT THE
ARBITRATOR MISINTERPRETED ARTICLE 55, SECTION 1 OF THE AGREEMENT AND, AS
INTERPRETED AND SO APPLIED IN HIS AWARD, THIS SECTION VIOLATES SECTION
12(B) OF THE ORDER. IN THE PRIVATE SECTOR, COURTS HAVE CONSISTENTLY
HELD THAT THE INTERPRETATION OF CONTRACT PROVISIONS IS A MATTER TO BE
LEFT TO THE ARBITRATOR'S JUDGMENT. SEE, E.G., UNITED STEELWORKERS OF
AMERICA V. ENTERPRISE WHEEL AND CAR CORP., 363 U.S. 593, 599 (1960).
THIS PRINCIPLE REGARDING THE INTERPRETATION OF NEGOTIATED PROVISIONS IS
LIKEWISE APPLICABLE IN THE FEDERAL SECTOR UNDER SECTION 2411.32 OF THE
COUNCIL'S RULES OF PROCEDURE. AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES LOCAL 12 AND U.S. DEPARTMENT OF LABOR (DALY, ARBITRATOR), FLRC
NO. 72A-55 (SEPTEMBER 17, 1973), CASE REPORT NO. 44. THIS DOES NOT
MEAN, OF COURSE, THAT AN ARBITRATOR'S INTERPRETATION OF AN AGREEMENT
PROVISION NEED NOT BE CONSISTENT WITH APPLICABLE LAW, APPROPRIATE
REGULATION OR THE ORDER. FOR WHERE IT APPEARS, BASED UPON THE FACTS AND
CIRCUMSTANCES DESCRIBED IN A PETITION THAT THERE IS SUPPORT FOR A
CONTENTION THAT AN ARBITRATOR HAS INTERPRETED AN AGREEMENT PROVISION IN
A MANNER WHICH RESULTS IN THE AWARD VIOLATING APPLICABLE LAW,
APPROPRIATE REGULATION OR THE ORDER, THE COUNCIL, UNDER ITS RULES, WILL
GRANT REVIEW OF THE AWARD. HERE, AS PREVIOUSLY DISCUSSED, IT DOES NOT
APPEAR THAT THE ARBITRATOR'S INTERPRETATION OF ARTICLE 55 HAS RESULTED
IN AN AWARD WHICH VIOLATES THE ORDER. MOREOVER, THE AGENCY DOES NOT
ALLEGE AND IT DOES NOT APPEAR THAT THE AWARD VIOLATES APPLICABLE LAW OR
APPROPRIATE REGULATION. THEREFORE, THE AGENCY'S SECOND EXCEPTION DOES
NOT STATE A GROUND UPON WHICH REVIEW OF AN ARBITRATOR'S AWARD MAY BE
GRANTED UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE.
ACCORDINGLY, THE AGENCY'S PETITION FOR REVIEW IS DENIED BECAUSE IT
FAILS TO MEET THE STANDARDS FOR REVIEW SET FORTH IN SECTION 2411.32 OF
THE COUNCIL'S RULES. LIKEWISE, THE AGENCY'S REQUEST FOR A STAY IS
DENIED UNDER SECTION 2411.47(D) OF THE COUNCIL'S RULES.
BY THE COUNCIL.
CC: W. B. PEER
PATCO
/1/ ARTICLE 55, SECTION 1 OF THE AGREEMENT PROVIDES AS FOLLOWS:
SECTION 1. IN THE EVENT OF A DIFFERENCE IN PROFESSIONAL OPINION
BETWEEN THE EMPLOYEE AND THE
SUPERVISOR, THE EMPLOYEE SHALL COMPLY WITH THE INSTRUCTIONS OF THE
SUPERVISOR AND THE
SUPERVISOR SHALL ASSUME RESPONSIBILITY FOR HIS OWN DECISIONS.
/2/ SECTION 12(B)(5) OF THE ORDER PROVIDES AS FOLLOWS:
(B) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN
ACCORDANCE WITH APPLICABLE LAWS
AND REGULATIONS--
(5) TO DETERMINE THE METHODS, MEANS, AND PERSONNEL BY WHICH SUCH
OPERATIONS ARE TO BE
CONDUCTED . . .
2 FLRC 137; FLRC NO. 73A-6; JUNE 21, 1974.
FEDERAL EMPLOYEES METAL
TRADES COUNCIL OF CHARLESTON
AND
CHARLESTON NAVAL SHIPYARD
CHARLESTON, SOUTH CAROLINA
(SYNOPSIS) FLRC NO. 73A-6
FEDERAL EMPLOYEES METAL TRADES COUNCIL OF CHARLESTON AND CHARLESTON
NAVAL SHIPYARD, CHARLESTON, SOUTH CAROLINA. THE NEGOTIABILITY DISPUTE
INVOLVED TWO MANAGEMENT PROPOSALS CONCERNING DISCUSSIONS BETWEEN
MANAGEMENT OFFICIALS AND INDIVIDUAL UNIT EMPLOYEES, WHICH THE AGENCY
HEAD DETERMINED TO BE NEGOTIABLE. A QUESTION WAS ALSO RAISED IN THE
UNION'S APPEAL TO THE COUNCIL AS TO THE VALIDITY OF A PROVISION IN
AGENCY REGULATIONS DEALING WITH INFORMAL DISCUSSIONS BETWEEN AN EMPLOYEE
AND A SUPERVISOR (DOD DIRECTIVE 1426.1, SECTION VII B.3.B.).
COUNCIL ACTION (JUNE 21, 1974). THE COUNCIL FOUND, CONTRARY TO THE
UNION'S CONTENTIONS, THAT THE MANAGEMENT PROPOSALS ARE NOT VIOLATIVE OF
SECTION 10(E) OF THE ORDER SINCE: (1) THE DISPUTED LANGUAGE OF THE
PROPOSALS, AS TACITLY CONCEDED BY THE UNION, PERTAINS ONLY TO "INFORMAL"
DISCUSSIONS WHICH ARE OUTSIDE THE LIMITATIONS OF SECTION 10(E); AND (2)
THE DIFFERENCE IN TREATMENT WHICH WOULD BE ACCORDED TEMPORARY AND
PROBATIONARY EMPLOYEES, AS DISTINGUISHED FROM CAREER/CAREER-CONDITIONAL
EMPLOYEES, IN ONE OF THE PROPOSALS, DOES NOT CONSTITUTE "DISCRIMINATION"
WITHIN THE MEANING OF SECTION 10(E). ACCORDINGLY, THE COUNCIL SUSTAINED
THE AGENCY HEAD'S DETERMINATION THAT THE PROPOSALS ARE NEGOTIABLE.
AS TO THE ALLEGED INVALIDITY OF THE PROVISION IN AGENCY REGULATIONS,
THE COUNCIL FOUND THAT THE REGULATIONS WERE NOT EXPRESSLY OR IMPLIEDLY
INVOKED BY THE AGENCY HEAD WITH RESPECT TO A PROPOSAL IN HIS
NEGOTIABILITY DETERMINATION AND, THEREFORE, THE VALIDITY OF THE
REGULATIONS IS NOT PROPERLY BEFORE THE COUNCIL IN THIS PROCEEDING UNDER
SECTION 11(C) OF THE ORDER.
THE FEDERAL EMPLOYEES METAL TRADES COUNCIL OF CHARLESTON REPRESENTS
WAGE GRADE EMPLOYEES AT THE CHARLESTON NAVAL SHIPYARD. IN CONNECTION
WITH THE PARTIES' NEGOTIATIONS, THE ACTIVITY PROPOSED ARTICLES (DETAILED
HEREINAFTER) DEALING WITH A MANAGEMENT-CONDUCTED "PRELIMINARY
INVESTIGATION" AND "INFORMAL INVESTIGATIVE DISCUSSION" IN REGARD TO
DECIDING WHETHER TO TAKE FORMAL DISCIPLINARY ACTION AGAINST AN EMPLOYEE
(ARTICLE 16, SECTION 1); AND, MANAGEMENT RIGHTS, INCLUDING THE RIGHT
"TO HOLD PRIVATE, INFORMAL DISCUSSIONS WITH INDIVIDUAL EMPLOYEES OF THE
UNIT" (ARTICLE 2, SECTION 1).
THE UNION ASSERTED THE ACTIVITY'S PROPOSALS WERE NONNEGOTIABLE AND
REFERRED THE QUESTION TO THE AGENCY FOR DETERMINATION, CLAIMING, IN
ADDITION, THAT A PROVISION CONTAINED IN PUBLISHED AGENCY REGULATIONS
(DOD DIRECTIVE 1426.1, SECTION VII B.3.B.) DEALING WITH INFORMAL
DISCUSSIONS BETWEEN AN EMPLOYEE AND A SUPERVISOR VIOLATES THE ORDER.
THE DEPARTMENT OF DEFENSE (DOD) UPHELD THE ACTIVITY, DETERMINING THAT
BOTH MANAGEMENT PROPOSALS ARE NEGOTIABLE. IN ADDITION, DOD FOUND NO
CONFLICT BETWEEN THE CITED PROVISION OF AGENCY REGULATIONS AND THE
ORDER.
THE UNION PETITIONED THE COUNCIL TO REVIEW THE AGENCY'S DETERMINATION
UNDER SECTION 11(C) OF THE ORDER. THEREAFTER, DOD FILED A STATEMENT OF
POSITION IN SUPPORT OF ITS DETERMINATION. /1/
THE ISSUES RAISED WITH RESPECT TO THE MANAGEMENT PROPOSALS AND THE
AGENCY REGULATION WILL BE DISCUSSED SEPARATELY, BELOW.
1. THE MANAGEMENT PROPOSALS. THE MANAGEMENT PROPOSALS PROVIDE AS
FOLLOWS:
PRIOR TO INITIATING A FORMAL DISCIPLINARY ACTION SUCH AS LETTERS OF
REPRIMAND OR SUSPENSION OF
30 CALENDAR DAYS OR LESS AGAINST AN EMPLOYEE, A PRELIMINARY
INVESTIGATION WILL BE MADE BY THE
IMMEDIATE SUPERVISOR OR OTHER MANAGEMENT OFFICIAL TO DOCUMENT THE
FACTS AND TO DETERMINE
WHETHER A PRIMA FACIE CASE EXISTS. THIS PRELIMINARY INVESTIGATION
WILL NORMALLY INCLUDE A
PRIVATE DISCUSSION WITH THE EMPLOYEE IF HE IS IN A DUTY STATUS. IF
THE FINDINGS OF THE
PRELIMINARY INVESTIGATION INDICATE THAT FORMAL DISCIPLINARY ACTION
MAY BE WARRANTED, AN
INFORMAL INVESTIGATIVE DISCUSSION WILL BE HELD WITH THE EMPLOYEE IF
HE IS OTHER THAN A
TEMPORARY OR PROBATIONARY EMPLOYEE, PRIOR TO ISSUANCE OF A PROPOSED
DISCIPLINARY ACTION. IF
THE EMPLOYEE SO DESIRES HE MAY HAVE A FELLOW EMPLOYEE PRESENT AT THIS
DISCUSSION.
THE RIGHTS, FUNCTIONS, AND AUTHORITY OF MANAGEMENT ARE VESTED IN
MANAGEMENT
OFFICIALS. INCLUDED, BUT NOT LIMITED THERETO, ARE THE FOLLOWING:
A. TO DIRECT EMPLOYEES OF THE SHIPYARD.
B. TO HIRE, PROMOTE, TRANSFER, ASSIGN, AND RETAIN EMPLOYEES IN
POSITIONS WITHIN THE
SHIPYARD, AND TO SUSPEND, DEMOTE, DISCHARGE, OR TAKE OTHER
DISCIPLINARY ACTION AGAINST
EMPLOYEES.
C. TO RELIEVE EMPLOYEES FROM DUTIES BECAUSE OF LACK OF WORK OR OTHER
LEGITIMATE REASON.
D. TO MAINTAIN THE EFFICIENCY OF THE GOVERNMENT OPERATIONS ENTRUSTED
TO MANAGEMENT.
E. TO DETERMINE THE METHODS, MEANS, AND PERSONNEL BY WHICH SUCH
OPERATIONS ARE TO BE
CONDUCTED.
F. TO TAKE WHATEVER ACTIONS MAY BE NECESSARY TO CARRY OUT THE
MISSION OF THE SHIPYARD IN
SITUATIONS OF EMERGENCY AS DETERMINED BY MANAGEMENT. THE FOREGOING
SHALL APPLY TO ALL
SUPPLEMENTAL IMPLEMENTING AND SUBSIDIARY OR INFORMAL AGREEMENTS
BETWEEN MANAGEMENT AND
COUNCIL. FURTHER, TO AVOID POSSIBLE MISUNDERSTANDINGS WITH RESPECT
TO OTHER PROVISIONS OF
THIS AGREEMENT MANAGEMENT HAS THE RIGHT TO HOLD PRIVATE, INFORMAL
DISCUSSIONS WITH INDIVIDUAL
EMPLOYEES OF THE UNIT. MANAGEMENT AGREES THAT IT WILL NOT ATTEMPT TO
USE THESE DISCUSSIONS TO
NEGOTIATE INDIVIDUALLY WITH EMPLOYEES.
THE UNION PRINCIPALLY CONTENDS THAT THE LANGUAGE CONTAINED IN BOTH
PROPOSALS, AS SET FORTH AND UNDERSCORED ABOVE, INSOFAR AS IT PROVIDES
FOR PRIVATE DISCUSSIONS BETWEEN MANAGEMENT OFFICIALS AND INDIVIDUAL UNIT
EMPLOYEES, VIOLATES SECTION 10(E) OF THE ORDER /2/ BECAUSE:
. . . (W)HEN MANAGEMENT SCHEDULES PRELIMINARY OR INFORMAL
INVESTIGATIVE DISCUSSIONS WHICH MAY
LEAD TO DISCIPLINARY ACTION WHICH IS GRIEVABLE UNDER THE NEGOTIATED
GRIEVANCE PROCEDURE
AGAINST EMPLOYEES IN THE UNIT, THE EMPLOYEE HAS AN ESTABLISHED RIGHT
TO BE REPRESENTED BY THE
EXCLUSIVE REPRESENTATIVE DURING SUCH DISCUSSIONS. SINCE THE
EXCLUSIVE REPRESENTATIVE IS
CLOTHED WITH THE RESPONSIBILITY OF 'ACTING FOR' AND REPRESENTING 'THE
INTERESTS' OF ALL
EMPLOYEES IN THE UNIT, THE EXCLUSIVE REPRESENTATIVE HAS THE RIGHT TO
BE IN ATTENDANCE AT SUCH
DISCUSSIONS. /3/
WE CANNOT AGREE WITH THE UNION'S CONTENTIONS. SECTION 10(E), AS
PREVIOUSLY SET FORTH, EXPRESSLY QUALIFIES THE UNION'S RIGHT TO BE
REPRESENTED BY LIMITING IT TO "FORMAL" DISCUSSIONS. THE LANGUAGE OF THE
PROPOSALS IN DISPUTE, AS TACITLY CONCEDED BY THE UNION, CALLS ONLY FOR
"INFORMAL" DISCUSSIONS, AND THE UNION DOES NOT CLAIM OR SEEK TO
ESTABLISH THAT SUCH DISCUSSIONS COULD BE CHARACTERIZED IN ANY MANNER AS
BEING "FORMAL." HENCE, THE PROPOSALS CLEARLY ARE NOT PROSCRIBED BY
SECTION 10(E) OF THE ORDER.
THE UNION ADDITIONALLY ASSERTS IN ITS APPEAL TO THE COUNCIL, AS
VIOLATIVE OF SECTION 10(E) OF THE ORDER, THE PROVISION CONTAINED IN THE
PROPOSED ARTICLE 16, SECTION 1, WHICH WOULD ACCORD TEMPORARY AND
PROBATIONARY EMPLOYEES DIFFERENT TREATMENT FROM THAT ACCORDED TO
CAREER/CAREER-CONDITIONAL EMPLOYEES FOR PURPOSES OF INFORMAL
INVESTIGATIVE DISCUSSIONS. /4/ MORE SPECIFICALLY, THE UNION ARGUES THAT
SECTION 10(E) REQUIRES IT TO REPRESENT THE INTERESTS OF ALL EMPLOYEES IN
THE UNIT WITHOUT DISCRIMINATION AND, IN EFFECT, THAT THE PROPOSED
PROVISION WOULD CAUSE THE UNION TO DISCRIMINATE AGAINST THE INTERESTS OF
TEMPORARY AND PROBATIONARY EMPLOYEES BY DENYING THE LATTER A RIGHT
ACCORDED TO OTHER TYPES OF EMPLOYEES.
THE AGENCY, NOTING THAT THIS ISSUE WAS RAISED FOR THE FIRST TIME BY
THE UNION IN ITS PETITION FOR REVIEW, CONTENDS IN ITS STATEMENT OF
POSITION THAT NO APPLICABLE AUTHORITY WOULD PROHIBIT DIFFERENT TREATMENT
FOR DIFFERENT CLASSES OF EMPLOYEES, AND THAT THE PROPOSED PROVISION IS
NEGOTIABLE.
APART FROM THE QUESTION OF THE TIMELINESS OF THE UNION'S CONTENTION,
/5/ WE FIND WITHOUT MERIT THE UNION'S ASSERTION THAT THE PROPOSAL
CONSTITUTES "DISCRIMINATION" WITHIN THE MEANING OF SECTION 10(E) OF THE
ORDER. SECTION 10(E) STATES THAT A LABOR ORGANIZATION WHICH HAS BEEN
ACCORDED EXCLUSIVE RECOGNITION IS RESPONSIBLE FOR REPRESENTING THE
INTERESTS OF ALL EMPLOYEES IN THE UNIT WITHOUT DISCRIMINATION. IN THE
COUNCIL'S VIEW THE DISCRIMINATION PROSCRIBED BY SECTION 10(E)
ENCOMPASSES A UNION'S ACCORDING DIFFERENT RIGHTS WITHIN LIKE CLASSES OF
EMPLOYEES IN THE BARGAINING UNIT. BUT WE CANNOT AGREE THAT SECTION
10(E) MEANS THAT EVERY EMPLOYEE IN THE UNIT MUST BE ACCORDED PRECISELY
THE SAME RIGHTS BY EACH PROVISION OF THE NEGOTIATED AGREEMENT. FOR SUCH
A CONSTRUCTION OF SECTION 10(E), AS ADVANCED BY THE UNION, WOULD
UNREALISTICALLY PREVENT PARTIES FASHIONING AN AGREEMENT FROM TAKING
ACCOUNT OF THE SIGNIFICANT VARIATIONS OF TENURE AND STATUS INCIDENT TO
DIFFERENT EMPLOYMENT CATEGORIES UNDER CIVIL SERVICE COMMISSION
REGULATIONS.
APPLYING THE FOREGOING TO THE INSTANT CASE, THE PROVISIONS CLAIMED BY
THE UNION TO BE IMPROPERLY DISCRIMINATORY CONCERNS EMPLOYEES IN THE
"TEMPORARY" AND "PROBATIONARY" CATEGORIES WHOSE EMPLOYMENT RIGHTS ARE
ESSENTIALLY DIFFERENT UNDER CIVIL SERVICE COMMISSION REGULATIONS FROM
THOSE OF "CAREER" AND "CAREER-CONDITIONAL" EMPLOYEES. FOR EXAMPLE, AS A
GENERAL RULE, THE EMPLOYMENT OF EMPLOYEES IN THE FORMER CATEGORIES MAY
BE TERMINATED UPON WRITTEN NOTICE, WITHOUT BENEFIT OF THE ADVERSE ACTION
PROCEDURAL PROTECTION WHICH MUST BE ACCORDED TO EMPLOYEES IN THE LATTER
CATEGORIES. /6/
IN OUR OPINION, THE PARTIES MAY TAKE SUCH DIFFERENCES IN THE BASIC
TERMS AND CONDITIONS OF PARTICULAR TYPES OF EMPLOYMENT INTO
CONSIDERATION WHEN FASHIONING THEIR AGREEMENTS, WITHOUT THEREBY ENGAGING
IN PROSCRIBED DISCRIMINATION UNDER SECTION 10(E). ACCORDINGLY, IN THE
CIRCUMSTANCES PRESENTED BY THE CASE AT HAND, WE FIND NO MERIT IN THE
UNION'S CONTENTION THAT THE PROPOSED PROVISION VIOLATES SECTION 10(E) OF
THE ORDER.
IN SUMMARY, BASED ON THE FOREGOING, WE CONCLUDE THAT THE MANAGEMENT
PROPOSALS ARE NEGOTIABLE MATTERS.
2. THE AGENCY REGULATION. AS PREVIOUSLY INDICATED, THE UNION
CONTENDS THAT DOD DIRECTIVE 1426.1, SECTION VII B.3.B. VIOLATES THE
ORDER.
SECTION 11(C) OF THE ORDER PROVIDES FOR APPEAL TO THE COUNCIL AS TO
THE VALIDITY OF AN AGENCY REGULATION ONLY IF SUCH REGULATION IS
EXPRESSLY OR IMPLIEDLY INVOKED BY THE AGENCY HEAD WITH RESPECT TO A
PROPOSAL. HERE, THE REGULATION IN QUESTION WAS NOT SO INVOKED AND,
THEREFORE, WITHOUT RULING ON THE SUBSTANCE OF THE UNION'S CONTENTION, WE
FIND THAT NO ISSUE IS PROPERLY BEFORE THE COUNCIL CONCERNING DOD
DIRECTIVE 1426.1, SECTION VII B.3.B., IN THIS PROCEEDING.
IN CONCLUSION, WE FIND THAT MANAGEMENT'S PROPOSALS (ARTICLE 16,
SECTION 1 AND ARTICLE 2, SECTION 1) ARE NEGOTIABLE UNDER THE ORDER.
ACCORDINGLY, PURSUANT TO SECTION 2411.27 OF THE COUNCIL'S RULES OF
PROCEDURE, THE AGENCY HEAD'S DETERMINATION IS SUSTAINED. THIS DECISION
SHALL NOT BE CONSTRUED AS EXPRESSING OR IMPLYING ANY OPINION OF THE
COUNCIL AS TO THE MERITS OF THE PROPOSALS. WE DECIDE ONLY THAT, AS
SUBMITTED AND BASED ON THE RECORD BEFORE US, THE PROPOSALS ARE PROPERLY
SUBJECT TO NEGOTIATION BY THE PARTIES UNDER SECTION 11(A) OF THE ORDER.
BY THE COUNCIL.
ISSUED: JUNE 21, 1974
/1/ DOD EARLIER MOVED TO DISMISS THE PETITION ON GROUNDS THAT THE
PETITION FAILED TO MEET THE REQUIREMENTS FOR REVIEW PRESCRIBED BY THE
ORDER AND THE COUNCIL'S RULES OF PROCEDURE, IN THAT "THE AGENCY HAS NOT
MADE A DETERMINATION THAT A PROPOSAL IS NONNEGOTIABLE." THE COUNCIL
RULES THAT REVIEW OF THE NEGOTIABILITY DISPUTE WOULD BE CONSISTENT WITH
THE UNDERLYING PURPOSE OF THE ORDER AND THE COUNCIL'S RULES OF PROCEDURE
AND DENIED DOD'S MOTION.
/2/ SECTION 10(E) OF THE ORDER PROVIDES:
(E) WHEN A LABOR ORGANIZATION HAS BEEN ACCORDED EXCLUSIVE
RECOGNITION, IT IS THE EXCLUSIVE
REPRESENTATIVE OF EMPLOYEES IN THE UNIT AND IS ENTITLED TO ACT FOR
AND TO NEGOTIATE AGREEMENTS
COVERING ALL EMPLOYEES IN THE UNIT. IT IS RESPONSIBLE FOR
REPRESENTING THE INTERESTS OF ALL
EMPLOYEES IN THE UNIT WITHOUT DISCRIMINATION AND WITHOUT REGARD TO
LABOR ORGANIZATION
MEMBERSHIP. THE LABOR ORGANIZATION SHALL BE GIVEN THE OPPORTUNITY TO
BE REPRESENTED AT FORMAL
DISCUSSIONS BETWEEN MANAGEMENT AND EMPLOYEES OR EMPLOYEE
REPRESENTATIVES CONCERNING
GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS
AFFECTING GENERAL WORKING
CONDITIONS OF EMPLOYEES IN THE UNIT.
/3/ THE UNION ALSO CONTENDS THE PROPOSALS VIOLATE SECTIONS 1(A),
12(B) AND 19(A)(1) OF THE ORDER. BUT THE UNION ADVANCED NO PERSUASIVE
REASONS TO SUPPORT ITS CONTENTIONS. HENCE, WE FIND THESE UNSUPPORTED
CLAIMS TO BE WITHOUT MERIT.
/4/ THE DISPUTED LANGUAGE OF ARTICLE 16, SECTION 1 IN THIS REGARD, AS
PREVIOUSLY SET FORTH, STATES:
IF THE FINDINGS OF THE PRELIMINARY INVESTIGATION INDICATE THAT FORMAL
DISCIPLINARY ACTION MAY
BE WARRANTED, AN INFORMAL INVESTIGATIVE DISCUSSION WILL BE HELD WITH
THE EMPLOYEE IF HE IS
OTHER THAN A TEMPORARY OR PROBATIONARY EMPLOYEE, PRIOR TO ISSUANCE OF
A PROPOSED DISCIPLINARY
ACTION.
/5/ SECTION 2411.51 OF THE COUNCIL'S RULES OF PROCEDURE PROVIDES IN
PERTINENT PART THAT:
CONSISTENT WITH THE SCOPE OF REVIEW SET FORTH IN THIS PART, THE
COUNCIL WILL NOT CONSIDER
. . . ANY ISSUE, WHICH WAS NOT PRESENTED IN THE PROCEEDINGS BEFORE .
. . AN AGENCY HEAD . . .
/6/ SEE FEDERAL PERSONNEL MANUAL 315.8-4 AND 316.4-2.
2 FLRC 135; FLRC NO. 74A-11; JUNE 18, 1974.
MR. ROBERT M. TOBIAS
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, NW.
WASHINGTON, D.C. 20006
DEAR MR. TOBIAS:
REFERENCE IS MADE TO YOUR PETITION FOR REVIEW AND REQUEST FOR STAY OF
THE ASSISTANT SECRETARY'S DECISION, FILED BY THE NATIONAL TREASURY
EMPLOYEES UNION (NTEU), AS AMICUS CURIAE IN THE ABOVE-ENTITLED CASE.
UNDER SECTION 2411.13(A) OF THE COUNCIL'S RULES OF PROCEDURE, A
PETITION FOR REVIEW OF A DECISION OF THE ASSISTANT SECRETARY MAY BE
FILED ONLY BY THE RESPECTIVE "PARTIES" TO THE CASE BEFORE THE COUNCIL.
LIKEWISE, UNDER THE CLEAR INTENT OF SECTION 2411.46 OF THE RULES, ONLY
THE RESPECTIVE "PARTIES" TO THE CASE MAY FILE A REQUEST FOR STAY OF THE
ASSISTANT SECRETARY'S DECISION.
THE TERM "PARTY" IS DEFINED IN SECTION 2411.3(C)(1) OF THE COUNCIL'S
RULES, AS FOLLOWS:
(C) 'PARTY' MEANS ANY PERSON, EMPLOYEE, LABOR ORGANIZATION, OR AGENCY
THAT PARTICIPATED AS
A PARTY--
(1) IN A MATTER THAT WAS DECIDED BY THE ASSISTANT SECRETARY UNDER
SECTION 6 OF THE ORDER
. . .
THE ASSISTANT SECRETARY HAS DEFINED THE TERM "PARTY" FOR PURPOSES OF
RELEVANT MATTERS BEFORE HIM, AS FOLLOWS (SEC. 201.21 OF ASSISTANT
SECRETARY RULES):
'PARTY' MEANS ANY PERSON, EMPLOYEE, GROUP OF EMPLOYEES, LABOR
ORGANIZATION, AGENCY, OR
ACTIVITY: (A) FILING A COMPLAINT, PETITION, REQUEST, OR APPLICATION;
(B) NAMED IN A
COMPLAINT, PETITION, REQUEST, OR APPLICATION; OR (C) WHOSE
INTERVENTION IN A PROCEEDING HAS
BEEN PERMITTED OR DIRECTED BY THE ASSISTANT SECRETARY, REGIONAL
ADMINISTRATOR, AREA
ADMINISTRATOR, DIRECTOR, HEARING OFFICER, CHIEF ADMINISTRATIVE LAW
JUDGE, OR ADMINISTRATIVE
LAW JUDGE, AS THE CASE MAY BE.
IN THIS CASE AFGE WAS THE COMPLAINANT AND TEXAS AIR NATIONAL GUARD
WAS THE RESPONDENT AND NO INTERVENTION WAS PERMITTED OR DIRECTED BY THE
ASSISTANT SECRETARY OR HIS REPRESENTATIVES IN THE PROCEEDING BEFORE HIM.
CONSEQUENTLY, IT DOES NOT APPEAR FROM THE ASSISTANT SECRETARY'S
DECISION THAT YOUR ORGANIZATION PARTICIPATED AS A "PARTY" IN THE MATTER
BEFORE HIM, WITHIN THE MEANING OF THAT TERM AS DEFINED IN THE ASSISTANT
SECRETARY'S RULES. ACCORDINGLY, YOUR ORGANIZATION IS NOT A "PARTY" TO
THE INSTANT CASE BEFORE THE COUNCIL, UNDER SECTION 2411.3(C)(1) OF THE
COUNCIL'S RULES, AND IS NOT ENTITLED TO FILE A PETITION FOR REVIEW,
UNDER SECTION 2411.13(A), OR A REQUEST FOR STAY, UNDER SECTION 2411.47
OF THE RULES.
THEREFORE, THE COUNCIL MUST DENY CONSIDERATION OF YOUR AMICUS CURIAE
PETITION FOR REVIEW AND REQUEST FOR STAY. MOREOVER, SECTION 2411.49 OF
THE COUNCIL'S RULES PROVIDES ONLY FOR THE FILING OF BRIEFS AND ORAL
ARGUMENTS BY AMICUS CURIAE.
IN THIS REGARD, ON THIS SAME DATE, THE PARTIES TO THE ABOVE-ENTITLED
CASE ARE BEING NOTIFIED THAT THE COUNCIL HAS DENIED AFGE'S PETITION FOR
REVIEW. (A COPY OF THE COUNCIL'S LETTER IN THIS REGARD IS ENCLOSED FOR
YOUR INFORMATION.)
BY THE COUNCIL.
ENCLOSURE
CC: A/SLMR
DEPT. OF LABOR
D. W. PACE
TEXAS AIR NATIONAL GUARD
D. D. SAND
AFGE
2 FLRC 130; FLRC NO. 74A-11; JUNE 18, 1974.
MR. DOLPH DAVID SAND
STAFF COUNSEL
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
1325 MASSACHUSETTS AVENUE, NW.
WASHINGTON, D.C. 20005
(SYNOPSIS) FLRC NO. 74A-11
DEPARTMENT OF DEFENSE, NATIONAL GUARD BUREAU, TEXAS AIR NATIONAL
GUARD, A/SLMR NO. 336. THE ASSISTANT SECRETARY DISMISSED A COMPLAINT
FILED BY TEXAS AIR NATIONAL GUARD COUNCIL OF LOCALS, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO (AFGE), WHICH ALLEGED THAT THE AGENCY'S
DENIAL OF AN EMPLOYEE'S REQUEST FOR UNION REPRESENTATION AS "COUNSELING
SESSIONS," AND ITS DENIAL OF THE EMPLOYEE'S REENLISTMENT IN THE TEXAS
AIR NATIONAL GUARD WHICH RESULTED IN THE EMPLOYEE'S LOSS OF CIVILIAN
GUARD EMPLOYMENT, VIOLATED SECTION 19(A)(1), (2) AND (6) OF THE ORDER.
THE ASSISTANT SECRETARY FOUND THAT THE EVIDENCE DID NOT ESTABLISH THE
"COUNSELING SESSIONS" WERE "FORMAL DISCUSSIONS" WITHIN THE MEANING OF
SECTION 10(E), AND THAT THE DENIAL OF UNION REPRESENTATION DID NOT
VIOLATE SECTION 19(A)(6) OR 19(A)(1). AS TO THE ALLEGED DISCRIMINATORY
DENIAL OF REENLISTMENT, THE ASSISTANT SECRETARY FOUND THAT THE EMPLOYEE
HAD USED THE GUARD'S APPEALS PROCEDURE, INCLUDING THE FINAL STEP
THEREOF, IN WHICH THE EMPLOYEE HAD THE OPPORTUNITY TO RAISE THE ISSUE OF
SUCH ALLEGED DISCRIMINATION, BUT FAILED TO DO SO; AND THAT THE
ASSISTANT SECRETARY WAS THEREBY PRECLUDED FROM DETERMINING THE ISSUE
HERE INVOLVED IN THE CONTEXT OF AN UNFAIR LABOR PRACTICE PROCEEDING
UNDER SECTION 19(D) OF THE ORDER ("ISSUES WHICH CAN BE PROPERLY RAISED
UNDER AN APPEALS PROCEDURE MAY NOT BE RAISED UNDER THIS SECTION.").
AFGE APPEALED TO THE COUNCIL, ALLEGING THAT THE ASSISTANT SECRETARY'S
DECISION PRESENTS A MAJOR POLICY ISSUE AND APPEARS ARBITRARY AND
CAPRICIOUS, PRINCIPALLY BECAUSE THE "COUNSELING SESSIONS" WERE IN EFFECT
GRIEVANCE OR ADVERSE ACTION PROCEDURES AT WHICH THE EMPLOYEE WAS
ENTITLED TO UNION REPRESENTATION; NO PROPER BASIS EXISTED FOR INVOKING
SECTION 19(D); AND THE ASSISTANT SECRETARY'S DECISION IS UNSUPPORTED BY
FACTS OR REASON AND IGNORES APPLICABLE PRECEDENTS. SEPARATELY, NATIONAL
TREASURY EMPLOYEES UNION (NTEU) FILED A PETITION FOR REVIEW AND REQUEST
FOR STAY AS AMICUS CURIAE.
COUNCIL ACTION (JUNE 18, 1974). AS TO AFGE'S APPEAL, THE COUNCIL
FOUND THAT THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS, SINCE IT DOES NOT APPEAR THAT THE ASSISTANT SECRETARY
ACTED WITHOUT REASONABLE JUSTIFICATION IN HIS DECISION. FURTHER, THE
COUNCIL HELD THAT, IN THE CIRCUMSTANCES PRESENTED, THE ASSISTANT
SECRETARY'S DETERMINATION (NAMELY, THAT DENIAL OF REPRESENTATION AT THE
PARTICULAR "COUNSELING SESSIONS" INVOLVED, WHICH WERE NOT "FORMAL
DISCUSSIONS" WITHIN THE MEANING OF SECTION 10(E), DID NOT INTERFERE WITH
ANY RIGHTS ACCORDED UNDER THE ORDER) DOES NOT PRESENT A MAJOR POLICY
ISSUE WARRANTING COUNCIL REVIEW. ALSO, THE COUNCIL RULED THAT THE
ASSISTANT SECRETARY'S CONCLUSION UNDER SECTION 19(D) THAT HE LACKED
JURISDICTION TO DETERMINE IN AN UNFAIR LABOR PRACTICE PROCEEDING THE
ISSUE OF DISCRIMINATORY DENIAL OF REENLISTMENT WHICH COULD HAVE BEEN
RAISED UNDER THE GUARD APPEALS PROCEDURE CLEARLY REFLECTS THE PLAIN
LANGUAGE OF 19(D) AND THUS PRESENTS NO MAJOR POLICY ISSUE. ACCORDINGLY,
THE COUNCIL DENIED REVIEW OF AFGE'S APPEAL PURSUANT TO SECTION 2411.12
OF THE COUNCIL'S RULES (5 CFR 2411.12).
AS TO NTEU'S APPEAL, THE COUNCIL DENIED CONSIDERATION OF NTEU'S
PETITION FOR REVIEW AND REQUEST FOR STAY SINCE SUCH SUBMISSIONS MAY BE
MADE ONLY BY A "PARTY" TO THE CASE AS DEFINED IN SECTION 2411.3(C)(1) OF
THE COUNCIL'S RULES (5 CFR 2411.3(C)(1)), AND NTEU FAILED TO MEET THE
REQUIREMENTS OF THAT DEFINITION. FURTHER THE COUNCIL NOTED THAT SUCH
SUBMISSIONS MAY NOT BE FILED BY AN AMICUS CURIAE UNDER SECTION 2411.49
OF THE COUNCIL'S RULES (5 CFR 2411.49) WHICH PROVIDES ONLY FOR THE
FILING OF BRIEFS AND ORAL ARGUMENT.
DEAR MR. SAND:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION, AND THE AGENCY'S OPPOSITION THERETO,
FILED IN ABOVE-ENTITLED CASE.
THE ASSISTANT SECRETARY DISMISSED A COMPLAINT FILED BY THE TEXAS AIR
NATIONAL GUARD COUNCIL OF LOCALS, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, WHICH ALLEGED VIOLATIONS OF SECTIONS 19(A)(1), (2)
AND (6) OF THE ORDER BY REASON OF THE AGENCY'S DENIAL OF EMPLOYEE JAMES
BURGAMY'S REQUESTS FOR UNION REPRESENTATION AT "COUNSELING SESSIONS";
AND ITS DENIAL OF BURGAMY'S REENLISTMENT IN THE TEXAS AIR NATIONAL
GUARD, ASSERTEDLY BECAUSE OF UNION ACTIVITIES AND HIS FILING OF
GRIEVANCES, THEREBY RESULTING, UNDER APPLICABLE STATUTES, IN BURGAMY'S
LOSS OF CIVILIAN EMPLOYMENT IN THE NATIONAL GUARD. THE ASSISTANT
SECRETARY FOUND THAT THE EVIDENCE DID NOT ESTABLISH THAT THE "COUNSELING
SESSIONS" IN QUESTION WERE "FORMAL DISCUSSIONS" CONCERNING GRIEVANCES,
PERSONNEL POLICIES AND PRACTICES, OR WORKING CONDITIONS WITHIN THE
MEANING OF SECTION 10(E) OF THE ORDER AT WHICH THE EXCLUSIVE
REPRESENTATIVE WAS ENTITLED TO BE REPRESENTED BY VIRTUE OF SECTION
10(E). CONSEQUENTLY, HE DETERMINED THAT THE AGENCY'S DENIAL OF UNION
REPRESENTATION AT THE "COUNSELING SESSIONS" DID NOT CONSTITUTE A
VIOLATION OF SECTION 19(A)(6). HE ALSO DETERMINED THAT THE AGENCY'S
DENIAL OF SUCH REPRESENTATION DID NOT INTERFERE WITH ANY RIGHTS ACCORDED
BURGAMY UNDER THE ORDER AND THEREFORE DID NOT CONSTITUTE A VIOLATION OF
SECTION 19(A)(1). WITH RESPECT TO THE DENIAL OF BURGAMY'S MILITARY
REENLISTMENT, THE ASSISTANT SECRETARY FOUND THAT BURGAMY HAD UTILIZED
THE TEXAS AIR NATIONAL GUARD'S APPEALS PROCEDURE, INCLUDING UTILIZATION
OF THE FINAL STEP OF SUCH PROCEDURE, AN APPEAL TO THE ADJUTANT GENERAL
OF THE TEXAS AIR NATIONAL GUARD. AS FOR BURGAMY'S ALLEGATION THAT HE
HAD BEEN DENIED REENLISTMENT FOR DISCRIMINATORY OR OTHER IMPROPER
REASONS UNDER THE ORDER, THE ASSISTANT SECRETARY FOUND THAT THE EVIDENCE
ESTABLISHED THAT BURGAMY HAD THE OPPORTUNITY TO RAISE THE ISSUE OF SUCH
ALLEGED DISCRIMINATION UNDER THE TEXAS AIR NATIONAL GUARD'S APPEALS
PROCEDURE, BUT FAILED TO DO SO. THUS, THE ASSISTANT SECRETARY CONCLUDED
UNDER SECTION 19(D), WHICH STATES IN PERTINENT PART THAT "ISSUES WHICH
CAN BE PROPERLY RAISED UNDER AN APPEALS PROCEDURE MAY NOT BE RAISED
UNDER THIS SECTION," THAT THE ASSISTANT SECRETARY WAS PRECLUDED FROM
DETERMINING IN THE CONTEXT OF AN UNFAIR LABOR PRACTICE PROCEEDING
WHETHER BURGAMY WAS, IN FACT, DENIED REENLISTMENT FOR DISCRIMINATORY
REASONS.
IN YOUR PETITION FOR REVIEW, YOU CONTEND THAT THE ASSISTANT
SECRETARY'S DECISION PRESENTS A MAJOR POLICY ISSUE AND IS ARBITRARY AND
CAPRICIOUS, PRINCIPALLY BECAUSE, AS YOU ALLEGE: THE "COUNSELING
SESSIONS" WERE, IN EFFECT, PART OF A GRIEVANCE OR AN ADVERSE ACTION
PROCEDURE AND THE FEDERAL PERSONNEL MANUAL GUARANTEES AN EMPLOYEE THE
RIGHT TO PRESENT AN APPEAL OR GRIEVANCE ACCOMPANIED, REPRESENTED AND
ADVISED BY A REPRESENTATIVE OF HIS CHOICE AT ANY STAGE OF THE
PROCEEDINGS; BURGAMY WAS NOT GIVEN AN OPPORTUNITY TO PRESENT HIS
ARGUMENTS THAT HE HAD BEEN DENIED REENLISTMENT FOR DISCRIMINATORY OR
OTHER IMPROPER REASONS, AND MOREOVER, THE TEXAS AIR NATIONAL GUARD
APPEALS PROCEDURE APPLIES TO MILITARY, AND NOT CIVILIAN MATTERS, THUS
PROVIDING NO PROPER BASIS FOR INVOKING SECTION 19(D) OF THE ORDER; AND,
THE ASSISTANT SECRETARY'S DECISION IS NOT SUPPORTED BY FACTS OR REASON
AND IGNORES HIS PRIOR DECISIONS.
IN THE COUNCIL'S OPINION, YOUR APPEAL DOES NOT ESTABLISH ANY BASIS
FOR REVIEW UNDER THE COUNCIL'S RULES, I.E., THE ASSISTANT SECRETARY'S
DECISION DOES NOT PRESENT A MAJOR POLICY ISSUE NOR DOES IT APPEAR
ARBITRARY AND CAPRICIOUS. WITH REGARD TO YOUR CONTENTIONS CONCERNING
MATTERS RELIED UPON BY THE ASSISTANT SECRETARY IN HIS DETERMINATIONS, IT
DOES NOT APPEAR THAT THE ASSISTANT SECRETARY ACTED WITHOUT REASONABLE
JUSTIFICATION IN HIS DECISION. AS TO THE ALLEGED MAJOR POLICY ISSUES,
THE COUNCIL IS OF THE OPINION THAT IN THE CIRCUMSTANCES PRESENTED THE
ASSISTANT SECRETARY'S DETERMINATION, THAT DENIAL OF REPRESENTATION AT
THESE PARTICULAR "COUNSELING SESSIONS" WHICH WERE NOT "FORMAL
DISCUSSIONS" WITHIN THE MEANING OF SECTION 10(E) OF THE ORDER DID NOT
INTERFERE WITH ANY RIGHTS ACCORDED UNDER THE ORDER, DOES NOT PRESENT A
MAJOR POLICY ISSUE WARRANTING COUNCIL REVIEW IN THIS CASE. FURTHERMORE,
THE ASSISTANT SECRETARY'S CONCLUSION UNDER SECTION 19(D) THAT HE LACKED
JURISDICTION TO DETERMINE IN AN UNFAIR LABOR PRACTICE PROCEEDING, THE
ISSUE OF DISCRIMINATORY DENIAL OF REENLISTMENT WHICH COULD HAVE BEEN
RAISED UNDER THE TEXAS AIR NATIONAL GUARD APPEALS PROCEDURE CLEARLY
REFLECTS THE PLAIN LANGUAGE OF SECTION 19(D), AS PREVIOUSLY SET FORTH.
THUS NO MAJOR POLICY ISSUE IS PRESENTED BY THIS DETERMINATION OF THE
ASSISTANT SECRETARY.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS AND DOES NOT PRESENT A MAJOR POLICY ISSUE, YOUR APPEAL
FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED IN SECTION 2411.12
OF THE COUNCIL'S RULES OF PROCEDURE. ACCORDINGLY, YOUR PETITION FOR
REVIEW IS DENIED. LIKEWISE, YOUR REQUEST TO PRESENT ORAL ARGUMENT IS
DENIED UNDER SECTION 2411.48 OF THE COUNCIL'S RULES OF PROCEDURE.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
D. W. PACE
TEXAS AIR NATIONAL GUARD
2 FLRC 127; FLRC NO. 74A-5; JUNE 18, 1974.
MR. GEORGE HARDY
INTERNATIONAL PRESIDENT
SERVICE EMPLOYEES INTERNATIONAL
UNION, AFL-CIO
900 17TH STREET, NW.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 74A-5
VETERANS ADMINISTRATION HOSPITAL, BUTLER, PA., ASSISTANT SECRETARY
CASE NO. 21-3923 (RO). THE ASSISTANT SECRETARY UPHELD THE ASSISTANT
REGIONAL DIRECTOR'S DENIAL OF THE REQUEST BY SERVICE EMPLOYEES
INTERNATIONAL UNION LOCAL 227 (SEIU) TO INTERVENE IN A REPRESENTATION
PROCEEDING INITIATED BY NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
CONCERNING THE UNIT FOR WHICH SEIU WAS THE INCUMBENT LABOR ORGANIZATION.
THE ASSISTANT SECRETARY FOUND THAT SEIU'S REQUEST WAS UNTIMELY FILED
AND THAT GOOD CAUSE WAS NOT SHOWN FOR EXTENDING THE PERIOD OF TIMELY
INTERVENTION. FURTHER, THE ASSISTANT SECRETARY FOUND THAT SEIU'S
INTERVENTION REQUEST WAS NOT SIMULTANEOUSLY SERVED ON ALL OTHER
INTERESTED PARTIES AS REQUIRED BY THE ASSISTANT SECRETARY'S RULES. SEIU
APPEALED TO THE COUNCIL CONTENDING THAT THE ASSISTANT SECRETARY'S
DECISION PRESENTED A MAJOR POLICY ISSUE OR APPEARED ARBITRARY AND
CAPRICIOUS PRINCIPALLY BECAUSE: (1) SEIU'S MEMBERS WERE PREVENTED FROM
CHOOSING SEIU AS THEIR EXCLUSIVE REPRESENTATIVE; AND (2) THE INCUMBENT
SHOULD HAVE A RIGHT TO APPEAR ON THE BALLOT WITHOUT BEING REQUIRED TO
INTERVENE UNDER THE ORDER.
COUNCIL ACTION (JUNE 18, 1974). THE COUNCIL HELD THAT NO MAJOR
POLICY ISSUE WAS PRESENTED AS SEIU HAD FAILED TO ADVANCE ANY PERSUASIVE
REASON FOR OVERTURNING THE ASSISTANT SECRETARY'S WELL ESTABLISHED POLICY
THAT INCUMBENT UNIONS MUST TIMELY INTERVENE IN REPRESENTATION ELECTIONS
PURSUANT TO THE REQUIREMENTS OF THE ASSISTANT SECRETARY'S RULES.
FURTHER, THE COUNCIL HELD THAT THE ASSISTANT SECRETARY'S DECISION DOES
NOT APPEAR ARBITRARY AND CAPRICIOUS SINCE THE ASSISTANT SECRETARY,
RELYING UPON AN ESTABLISHED POLICY REFLECTED IN HIS RULES AND PUBLISHED
PRECEDENT, DOES NOT APPEAR TO HAVE ACTED WITHOUT REASONABLE
JUSTIFICATION IN THIS CASE. ACCORDINGLY, THE COUNCIL DENIED REVIEW OF
SEIU'S APPEAL UNDER SECTION 2411.12 OF THE COUNCIL'S RULES OF PROCEDURE
(5 CFR 2411.12).
DEAR MR. HARDY:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION AND THE OPPOSITION THERETO FILED BY THE
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES (NAGE) IN THE
ABOVE-ENTITLED CASE.
THE ASSISTANT SECRETARY'S DECISION UPHELD THE ASSISTANT REGIONAL
DIRECTOR'S DENIAL, AS UNTIMELY FILED, OF THE REQUEST BY THE SERVICE
EMPLOYEES INTERNATIONAL UNION (SEIU) LOCAL 227 TO INTERVENE IN THE
REPRESENTATION PROCEEDING FILED BY NAGE CONCERNING THE UNIT FOR WHICH
LOCAL 227 WAS THE INCUMBENT LABOR ORGANIZATION. THE ASSISTANT SECRETARY
FOUND, AMONG OTHER THINGS, THAT: ON SEPTEMBER 7, 1973, SIMULTANEOUSLY
WITH THE FILING OF ITS PETITION, NAGE SERVED A COPY ON SEIU (BY
CERTIFIED MAIL WITH RETURN RECEIPT); ONE WEEK LATER THE AREA
ADMINISTRATOR SENT A LETTER OF NOTICE OF THE PETITION TO THE ACTIVITY
WITH SIMULTANEOUS SERVICE ON SEIU; AND, ON SEPTEMBER 20, 1973, THE
OFFICIAL DEPARTMENT OF LABOR NOTICE OF PETITION WAS POSTED AT THE
ACTIVITY INDICATING, IN ACCORDANCE WITH SECTION 202.5 OF THE ASSISTANT
SECRETARY'S RULES, THAT ANY INCUMBENT UNION MUST FILE A REQUEST TO
INTERVENE WITHIN TEN DAYS OF SUCH POSTING. THE ASSISTANT SECRETARY
FURTHER FOUND THAT SEIU'S REQUEST TO INTERVENE WAS NOT FILED UNTIL
OCTOBER 25, 1973, I.E., BEYOND THE PERMISSIBLE TEN DAY PERIOD, AND THAT
GOOD CAUSE HAD NOT BEEN SHOWN FOR EXTENDING THE PERIOD FOR TIMELY
INTERVENTION. FINALLY, THE ASSISTANT SECRETARY FOUND THAT, BESIDES
HAVING BEEN UNTIMELY FILED UNDER HIS RULES, SEIU'S INTERVENTION REQUEST
WAS NOT SIMULTANEOUSLY SERVED ON ALL OTHER INTERESTED PARTIES AS
REQUIRED BY SECTION 202.5(C) OF THE ASSISTANT SECRETARY'S RULES.
IN YOUR PETITION FOR REVIEW YOU CONTEND THAT THE ASSISTANT
SECRETARY'S DECISION PRESENTS MAJOR POLICY ISSUES OR IS ARBITRARY AND
CAPRICIOUS PRINCIPALLY BECAUSE: THE ASSISTANT SECRETARY'S POLICY
REQUIRING AN INCUMBENT UNION TO TIMELY INTERVENE IN A REPRESENTATION
ELECTION IN COMPLIANCE WITH THE RULES OF THE ASSISTANT SECRETARY WORKS
AN UNJUST BURDEN ON SEIU'S MEMBERS WHO ARE PREVENTED IN THIS CASE FROM
CHOOSING SEIU AS THEIR EXCLUSIVE REPRESENTATIVE; SINCE THE ELECTION WAS
OF THE TYPE MENTIONED IN SECTION 10(D)(2) OF THE ORDER, I.E., TO
DETERMINE WHETHER A LABOR ORGANIZATION SHOULD REPLACE ANOTHER LABOR
ORGANIZATION AS THE EXCLUSIVE REPRESENTATIVE, THE INCUMBENT UNION SHOULD
APPEAR ON A BALLOT WITHOUT BEING REQUIRED TO INTERVENE; AND, THE
ASSISTANT SECRETARY'S INFORCEMENT OF SECTION 202.5 OF HIS RULES IN THIS
CASE NULLIFIES THE INTENT OF SECTION 10(D)(2) OF THE ORDER BY TAKING
AWAY THE EMPLOYEES' RIGHT TO CHOOSE BETWEEN THE INCUMBENT UNION AND THE
CHALLENGING UNION, AND BY DENYING EMPLOYEES THEIR RIGHT UNDER SECTION 1
OF THE ORDER TO ASSIST ANY LABOR ORGANIZATION.
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW DOES NOT MEET THE
REQUIREMENTS FOR GRANTING REVIEW UNDER SECTION 2411.12 OF THE COUNCIL'S
RULES; THE DECISION OF THE ASSISTANT SECRETARY NEITHER APPEARS
ARBITRARY AND CAPRICIOUS NOR PRESENTS A MAJOR POLICY ISSUE. YOUR APPEAL
PRESENTS NO PERSUASIVE REASONS FOR OVERTURNING THE ASSISTANT SECRETARY'S
WELL ESTABLISHED POLICY THAT INCUMBENT UNIONS MUST TIMELY INTERVENE IN
REPRESENTATION ELECTIONS PURSUANT TO THE REQUIREMENTS OF THE RULES OF
THE ASSISTANT SECRETARY. THEREFORE, WE CONCLUDE THAT THE ASSISTANT
SECRETARY'S DECISION DOES NOT PRESENT A MAJOR POLICY ISSUE. FURTHER,
WITH RESPECT TO YOUR CONTENTIONS THAT THE DECISION OF THE ASSISTANT
SECRETARY APPEARS ARBITRARY AND CAPRICIOUS, IT DOES NOT APPEAR THAT HE
ACTED WITHOUT REASONABLE JUSTIFICATION IN THE CIRCUMSTANCES OF THIS
CASE. INSTEAD, THE ASSISTANT SECRETARY RELIED UPON AN ESTABLISHED
POLICY REFLECTED IN HIS RULES AND IN A PREVIOUSLY PUBLISHED REPORT ON A
RULING. (REPORT NO. 43.)
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS AND DOES NOT PRESENT A MAJOR POLICY ISSUE, YOUR PETITION
FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED IN SECTION 2411.12
OF THE COUNCIL'S RULES OF PROCEDURE. ACCORDINGLY, REVIEW OF YOUR APPEAL
IS HEREBY DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
A. J. WHITNEY
NAGE
P. A. KENNEDY
VA
2 FLRC 124; FLRC NO. 74A-18; MAY 6, 1974.
MRS. STASIA L. MCAVOY, PRESIDENT
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1711
1809 WEST WOODBINE AVENUE
KIRKWOOD, MISSOURI 63122
(SYNOPSIS) FLRC NO. 74A-18
DEFENSE CONTRACT ADMINISTRATION SERVICES REGION, ST. LOUIS, MISSOURI,
AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1711 (MADDEN,
ARBITRATOR). THE UNION APPEALED TO THE COUNCIL FROM THE ARBITRATOR'S
AWARD IN THIS CASE. PRELIMINARY EXAMINATION OF THE APPEAL REFLECTED
DEFICIENCIES IN MEETING VARIOUS PROCEDURAL REQUIREMENTS UNDER THE
COUNCIL'S RULES. THE UNION WAS NOTIFIED OF THESE DEFICIENCIES AND WAS
PROVIDED TIME TO EFFECT COMPLIANCE WITH THE RULES. FURTHER, THE UNION
WAS ADVISED THAT FAILURE TO EFFECT COMPLIANCE WOULD RESULT IN DISMISSAL
OF THE APPEAL. THE UNION FAILED TO COMPLETE THE NECESSARY ACTIONS
WITHIN THE TIME LIMIT PRESCRIBED.
COUNCIL ACTION (MAY 6, 1974). THE COUNCIL DISMISSED THE APPEAL
BECAUSE OF THE FAILURE TO COMPLY WITH THE COUNCIL'S RULES OF PROCEDURE.
DEAR MRS. MCAVOY:
BY COUNCIL LETTER OF APRIL 12, 1974, YOUR WERE ADVISED THAT
PRELIMINARY EXAMINATION OF YOUR APPEAL REFLECTED DEFICIENCIES IN MEETING
VARIOUS REQUIREMENTS OF THE COUNCIL'S RULES (A COPY OF WHICH WAS SENT TO
YOU FOR YOUR INFORMATION). THE PERTINENT SECTIONS OF THE RULES WERE
INDICATED, NAMELY, SECTIONS 2411.34, 2411.42, 2411.46(A), AND
2411.46(B), AND THE DEFICIENCIES WERE EXPLAINED, IN THE LETTER.
YOU WERE ALSO ADVISED IN THE COUNCIL'S LETTER:
FURTHER PROCESSING OF YOUR APPEAL IS CONTINGENT UPON YOUR IMMEDIATE
COMPLIANCE WITH THE
ABOVE PROVISIONS IN THE COUNCIL'S RULES. ACCORDINGLY, YOU ARE HEREBY
GRANTED UNTIL THE CLOSE
OF BUSINESS ON APRIL 26, 1974, TO ACCOMPLISH THE REQUIRED ACTIONS AND
FILE THE STATEMENTS
PRESCRIBED. FAILURE TO DO SO WILL RESULT IN THE DISMISSAL OF YOUR
APPEAL.
YOU HAVE MADE NO SUBMISSION SHOWING ACCOMPLISHMENT OF THE REQUIRED
ACTIONS, AND YOU HAVE NOT FILED THE STATEMENTS PRESCRIBED, WITHIN THE
TIME LIMIT PROVIDED THEREFOR. ACCORDINGLY, YOUR APPEAL IS HEREBY
DISMISSED FOR FAILURE TO COMPLY WITH THE COUNCIL'S RULES OF PROCEDURE.
FOR YOUR CONVENIENCE, THE PAPERS WHICH YOU INITIALLY FILED IN THE
CASE ARE RETURNED HEREWITH.
BY THE COUNCIL.
ENCLOSURE
2 FLRC 122; FLRC NO. 74A-4; APRIL 29, 1974.
MR. HOWARD TOY
DIRECTOR OF PERSONNEL
OFFICE OF ECONOMIC OPPORTUNITY
WASHINGTON, D.C. 20506
(SYNOPSIS) FLRC NO. 74A-4
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 2677 AND OFFICE OF
ECONOMIC OPPORTUNITY (DOUGHERTY, ARBITRATOR). THE AGENCY APPEALED TO
THE COUNCIL FROM THE ARBITRATOR'S AWARD. THE APPEAL WAS DUE, UNDER THE
COUNCIL'S RULES, NO LATER THAN JANUARY 7, 1974. HOWEVER, THE APPEAL WAS
NOT FILED WITH THE COUNCIL UNTIL AFTER THE CLOSE OF BUSINESS ON JANUARY
8, 1974, AND NO EXTENSION OF THE TIME FOR FILING THIS PETITION FOR
REVIEW WAS EITHER REQUESTED BY THE AGENCY OR GRANTED BY THE COUNCIL.
COUNCIL ACTION (APRIL 29, 1974). BECAUSE THE AGENCY'S APPEAL WAS
UNTIMELY FILED, AND APART FROM OTHER CONSIDERATIONS, THE COUNCIL DENIED
THE PETITION FOR REVIEW.
DEAR MR. TOY:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF AN
ARBITRATOR'S AWARD, AND THE UNION'S OPPOSITION THERETO, FILED IN THE
ABOVE-ENTITLED CASE. FOR THE REASONS INDICATED BELOW, THE COUNCIL HAS
DETERMINED THAT YOUR PETITION WAS UNTIMELY FILED UNDER THE COUNCIL'S
RULES OF PROCEDURE AND CANNOT BE ACCEPTED FOR REVIEW.
SECTION 2411.33(B) OF THE COUNCIL'S RULES PROVIDES THAT AN APPEAL
MUST BE FILED WITHIN 20 DAYS FROM THE DATE OF SERVICE OF THE
ARBITRATOR'S AWARD ON THE PARTY SEEKING REVIEW; AND UNDER SECTION
2411.45(A) SUCH APPEAL MUST BE RECEIVED IN THE COUNCIL'S OFFICE BEFORE
THE CLOSE OF BUSINESS OF THE LAST DAY OF THE PRESCRIBED TIME LIMIT. IN
COMPUTING THESE LIMITS, SECTION 2411.45(B) PROVIDES THAT IF THE LAST DAY
FOR FILING A PETITION FALLS ON A SATURDAY, SUNDAY OR FEDERAL LEGAL
HOLIDAY, THE PERIOD FOR FILING SHALL RUN UNTIL THE END OF THE NEXT DAY
WHICH IS NOT A SATURDAY, SUNDAY OR FEDERAL LEGAL HOLIDAY.
ACCORDING TO THE RECORD BEFORE THE COUNCIL, THE ARBITRATOR'S AWARD IN
THIS CASE WAS SERVED ON YOU BY HAND ON DECEMBER 17, 1973. THEREFORE,
UNDER THE ABOVE RULES, YOUR APPEAL WAS DUE IN THE COUNCIL'S OFFICE ON OR
BEFORE JANUARY 7, 1974. HOWEVER, YOUR PETITION FOR REVIEW WAS NOT FILED
UNTIL AFTER THE CLOSE OF BUSINESS ON JANUARY 8, 1974, AND NO EXTENSION
OF TIME WAS EITHER REQUESTED BY YOU OR GRANTED BY THE COUNCIL UNDER
SECTION 2411.45(D) OF THE COUNCIL'S RULES.
ACCORDINGLY, AS YOUR APPEAL WAS UNTIMELY FILED, AND APART FROM OTHER
CONSIDERATIONS, YOUR PETITION FOR REVIEW IS DENIED.
BY THE COUNCIL.
CC: P. KETE
NATIONAL COUNCIL OF OEO
LOCALS, LOCAL 2677
2 FLRC 119; FLRC NO. 74A-3; APRIL 29, 1974.
MR. CHARLES BARNHILL, JR.
DAVIS, MINER, BARNHILL & BRONNER
22 EAST HURON STREET
CHICAGO, ILLINOIS 60611
(SYNOPSIS) FLRC NO. 74A-3
OFFICE OF ECONOMIC OPPORTUNITY, REGION V, CHICAGO, ILLINOIS, A/SLMR
NO. 334. THE ASSISTANT SECRETARY DISMISSED COMPLAINTS FILED BY THE
INDIVIDUAL GRIEVANT AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 2816 (AFGE), ALLEGING AGENCY VIOLATIONS OF SECTION 19(A)(1) OF THE
ORDER IN FAILING TO FOLLOW THE AGENCY GRIEVANCE PROCEDURE IN SEVERAL
MATTERS IN WHICH THE GRIEVANT WAS REPRESENTED BY THE UNION. THE
ASSISTANT SECRETARY FOUND THAT, EVEN ASSUMING AN AGENCY FAILS TO APPLY
THE PROVISIONS OF ITS OWN GRIEVANCE PROCEDURE, SUCH FAILURE, STANDING
ALONE, DOES NOT INTERFERE WITH RIGHTS ASSURED UNDER THE ORDER. FURTHER,
HE FOUND THAT THE EVIDENCE DID NOT ESTABLISH THAT THE AGENCY'S CONDUCT
WAS MOTIVATED BY ANTI-UNION CONSIDERATIONS. THE ASSISTANT SECRETARY
CONCLUDED THAT THE AGENCY'S FAILURE TO PROCESS THE GRIEVANCES UNDER ITS
GRIEVANCE PROCEDURE DID NOT VIOLATE 19(A)(1).
AFGE APPEALED TO THE COUNCIL, CONTENDING A MAJOR POLICY ISSUE IS
PRESENT, NAMELY WHETHER AN AGENCY'S ALLEGED UNJUSTIFIED FAILURE TO
PROCESS A GRIEVANCE ACCORDING TO THE TERMS OF AN AGENCY GRIEVANCE
PROCEDURE VIOLATES 19(A)(1) WHERE THE GRIEVANCE WAS PRESENTED AND
PROSECUTED BY THE GRIEVANT THROUGH HIS EXCLUSIVELY RECOGNIZED UNION
REPRESENTATIVE; AND ASSERTING IN THIS REGARD THAT THE AGENCY'S ACTION
DISCOURAGES UNION MEMBERSHIP.
COUNCIL ACTION (APRIL 29, 1974). THE COUNCIL HELD THAT, BASED ON THE
CONTENTIONS OF THE UNION DESCRIBED ABOVE, THE ASSISTANT SECRETARY'S
DECISION DID NOT PRESENT A MAJOR POLICY ISSUE. IN THIS CONNECTION THE
COUNCIL RULED, AS DID THE ASSISTANT SECRETARY, THAT CLEARLY THE FAILURE
OF AN AGENCY TO FOLLOW ITS OWN GRIEVANCE PROCEDURE, STANDING ALONE, DOES
NOT VIOLATE SECTION 19(A)(1) OF THE ORDER; MOREOVER, SUCH A FAILURE
DOES NOT BECOME A VIOLATION OF 19(A)(1) MERELY BY REASON OF THE
REPRESENTATION OF A PARTICULAR GRIEVANT BY A LABOR ORGANIZATION.
THE COUNCIL ALSO HELD THAT AFGE DID NOT ALLEGE, NOR DID IT OTHERWISE
APPEAR, THAT THE ASSISTANT SECRETARY'S DECISION WAS IN ANY MANNER
ARBITRARY AND CAPRICIOUS. ACCORDINGLY, THE COUNCIL DENIED REVIEW OF
AFGE'S APPEAL PURSUANT TO SECTION 2411.12 OF THE COUNCIL'S RULES OF
PROCEDURE (5 CFR 2411.12).
DEAR MR. BARNHILL:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
THE ASSISTANT SECRETARY DISMISSED SEVERAL UNFAIR LABOR PRACTICE
COMPLAINTS FILED BY MR. BOTTIGLIERO AND AFGE LOCAL 2816 WHICH ALLEGED
VIOLATIONS OF SECTION 19(A)(1) OF THE ORDER BY REASON OF THE AGENCY'S
FAILURE TO FOLLOW THE AGENCY GRIEVANCE PROCEDURE IN SEVERAL MATTERS IN
WHICH THE GRIEVANT WAS REPRESENTED BY THE UNION. THE ASSISTANT
SECRETARY BASED HIS DECISION ON HIS FINDINGS, IN PERTINENT PART, THAT:
. . . (T)HE GRIEVANCE PROCEDURE WHICH ALLEGEDLY HAS BEEN VIOLATED BY
THE AGENCY INVOLVED,
IS A PROCEDURE ESTABLISHED BY THE AGENCY ITSELF RATHER THAN THROUGH
THE PROCESS OF BILATERAL
NEGOTIATIONS, . . . (A)N AGENCY GRIEVANCE PROCEDURE DOES NOT RESULT
FROM ANY RIGHTS ACCORDED
TO INDIVIDUAL EMPLOYEES OR TO LABOR ORGANIZATIONS UNDER THE ORDER.
MOREOVER, SUCH A PROCEDURE
IS APPLICABLE TO ALL EMPLOYEES OF AN AGENCY NOT COVERED BY A
NEGOTIATED GRIEVANCE PROCEDURE,
REGARDLESS OF WHETHER OR NOT THEY ARE INCLUDED IN EXCLUSIVELY
RECOGNIZED BARGAINING
UNITS. UNDER THESE CIRCUMSTANCES, . . . EVEN ASSUMING THAT AN AGENCY
IMPROPERLY FAILS TO
APPLY THE PROVISIONS OF ITS OWN GRIEVANCE PROCEDURE, SUCH A FAILURE,
STANDING ALONE, CANNOT BE
SAID TO INTERFERE WITH RIGHTS ASSURED UNDER THE ORDER AND THEREBY BE
VIOLATIVE OF SECTION
19(A)(1).
BASED ON THE FOREGOING, AND NOTING THE ADMINISTRATIVE LAW JUDGE'S
FINDING, WHICH I ADOPT,
THAT THE EVIDENCE DOES NOT ESTABLISH THAT THE RESPONDENT'S CONDUCT
HEREIN WAS MOTIVATED BY
ANTI-UNION CONSIDERATIONS, I FIND THAT THE RESPONDENT'S FAILURE TO
PROCESS THE COMPLAINANT'S
GRIEVANCES UNDER THE FORMER'S GRIEVANCE PROCEDURE DID NOT CONSTITUTE
A VIOLATION OF SECTION
19(A)(1) OF THE ORDER. (FOOTNOTE OMITTED.)
IN YOUR PETITION FOR REVIEW, YOU CONTEND THAT THE ASSISTANT
SECRETARY'S DECISION PRESENTS A MAJOR POLICY ISSUE CONCERNING WHETHER AN
AGENCY'S UNJUSTIFIED FAILURE TO PROCESS A GRIEVANCE ACCORDING TO THE
TERMS OF AN AGENCY-PROMULGATED GRIEVANCE PROCEDURE VIOLATES SECTION
19(A)(1) OF THE ORDER, WHERE THAT GRIEVANCE HAS BEEN PRESENTED AND
PROSECUTED BY THE GRIEVANT THROUGH HIS EXCLUSIVELY RECOGNIZED UNION
REPRESENTATIVE. IN THIS REGARD, YOU ASSERT THAT THE AGENCY'S ACTION
DISCOURAGES MEMBERSHIP IN THE UNION.
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW DOES NOT MEET THE
CONSIDERATIONS GOVERNING REVIEW ESTABLISHED BY SECTION 2411.12 OF THE
COUNCIL'S RULES. THAT IS, BASED UPON THE CONTENTIONS DESCRIBED ABOVE,
NO MAJOR POLICY ISSUE IS PRESENTED BY THE ASSISTANT SECRETARY'S
DECISION, FOR IT IS CLEAR, AS HELD BY THE ASSISTANT SECRETARY, THAT THE
AGENCY'S FAILURE TO FOLLOW ITS OWN GRIEVANCE PROCEDURE, STANDING ALONE,
IS NOT VIOLATIVE OF SECTION 19(A)(1) OF THE ORDER. MOREOVER, SUCH A
FAILURE ON THE PART OF AN AGENCY TO FOLLOW ITS OWN GRIEVANCE PROCEDURE
DOES NOT BECOME A VIOLATION OF 19(A)(1) MERELY BY REASON OF THE
REPRESENTATION OF A PARTICULAR GRIEVANT BY A LABOR ORGANIZATION.
FURTHER, YOU DO NOT ALLEGE, NOR DOES IT OTHERWISE APPEAR, THAT SUCH
DECISION WAS IN ANY MANNER ARBITRARY AND CAPRICIOUS.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT PRESENT A MAJOR
POLICY ISSUE AND DOES NOT APPEAR ARBITRARY AND CAPRICIOUS, IT FAILS TO
MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED IN SECTION 2411.12 OF THE
COUNCIL'S RULES OF PROCEDURE. ACCORDINGLY, REVIEW OF YOUR APPEAL IS
HEREBY DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
W. FOREMAN
OEO
2 FLRC 116; FLRC NO. 73A-66; APRIL 29, 1974.
MS. JANET COOPER
STAFF ATTORNEY
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES
1737 H STREET, NW.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 73A-66
U.S. AIR FORCE, ANDREWS AIR FORCE BASE, BASE FIRE DEPARTMENT,
ASSISTANT SECRETARY CASE NO. 22-3954 (CA). BASED ON SECTION 19(D) OF
THE ORDER, THE ASSISTANT SECRETARY UPHELD THE ASSISTANT REGIONAL
DIRECTOR'S DISMISSAL OF THE NATIONAL FEDERATION OF GOVERNMENT EMPLOYEES
(NFFE) COMPLAINT ALLEGING VIOLATIONS OF SECTION 19(A)(1), (5) AND (6) OF
THE ORDER. NFFE APPEALED TO THE COUNCIL ON THE GROUND THAT THE
ASSISTANT SECRETARY'S DECISION WAS ARBITRARY AND CAPRICIOUS BECAUSE HE
FAILED ADEQUATELY TO INVESTIGATE AND CONSIDER THE UNION'S CONTENTIONS,
AND TO ORDER A HEARING, IN THE CASE.
COUNCIL ACTION (APRIL 29, 1974). THE COUNCIL HELD THAT THE ASSISTANT
SECRETARY DID NOT APPEAR TO HAVE DISREGARDED THE UNION'S CONTENTIONS;
THE UNION'S APPEAL DID NOT DEMONSTRATE THAT SUBSTANTIAL FACTUAL ISSUES
EXIST REQUIRING A HEARING; AND THE DECISION OF THE ASSISTANT SECRETARY
DID NOT APPEAR TO BE WITHOUT REASONABLE JUSTIFICATION OR IN ANY OTHER
MANNER ARBITRARY AND CAPRICIOUS. THE COUNCIL FURTHER HELD THAT THE
PETITION NEITHER ALLEGED, NOR DID IT APPEAR THEREFROM, THAT ANY MAJOR
POLICY ISSUE IS PRESENTED BY THE ASSISTANT SECRETARY'S DECISION.
ACCORDINGLY, THE COUNCIL DENIED REVIEW OF NFFE'S APPEAL PURSUANT TO
SECTION 2411.12 OF THE COUNCIL'S RULES OF PROCEDURE (5 CFR 2411.12).
DEAR MS. COOPER:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
THE ASSISTANT SECRETARY DENIED YOUR REQUEST FOR REVIEW, SEEKING
REVERSAL OF THE ASSISTANT REGIONAL DIRECTOR'S DISMISSAL OF YOUR UNFAIR
LABOR PRACTICE COMPLAINT, ALLEGING VIOLATIONS OF SECTION 19(A)(1), (5)
AND (6) OF THE ORDER. IN THIS REGARD, THE ASSISTANT SECRETARY FOUND, IN
AGREEMENT WITH THE ASSISTANT REGIONAL DIRECTOR, "THAT YOUR COMPLAINT
CANNOT BE PROCESSED BASED ON SECTION 19(D) OF THE ORDER AS IT IS CLEAR
THAT THE ISSUES HEREIN WERE RAISED PREVIOUSLY UNDER A GRIEVANCE
PROCEDURE." HE FURTHER REJECTED YOUR CONTENTION THAT SECTION 19(D) IS
INAPPLICABLE (BECAUSE YOUR COMPLAINT WAS FILED AFTER A CLAIMED SECOND
IMPLEMENTATION OF THE ALLEGED CHANGE IN WORKING CONDITIONS WHICH HAD
BEEN THE SUBJECT OF THE GRIEVANCE) FINDING THIS CONTENTION WAS RAISED
FOR THE FIRST TIME IN YOUR REQUEST FOR REVIEW AND WAS NOT SUPPORTED BY
THE EVIDENCE PRESENTED TO THE ASSISTANT REGIONAL DIRECTOR.
IN YOUR PETITION FOR REVIEW YOU CONTEND THAT THE ASSISTANT
SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS BECAUSE HE FAILED (1)
TO MAKE HIS OWN INVESTIGATION OF YOUR ALLEGATION THAT THERE WERE TWO
SEPARATE IMPLEMENTATIONS OF THE CHANGED WORKING CONDITIONS; (2) TO
CONSIDER YOUR ARGUMENT THAT SECTION 19(D) OF THE ORDER DOES NOT RAISE A
BAR TO THIS ACTION BECAUSE THE GRIEVANCE WAS WITHDRAWN WITHOUT
SETTLEMENT; AND (3) TO DIRECT THAT A HEARING BE HELD TO RESOLVE THE
CONFLICTING EVIDENCE.
IN OUR VIEW YOUR PETITION FOR REVIEW OF THE ASSISTANT SECRETARY'S
DECISION DOES NOT MEET THE REQUIREMENTS OF SECTION 2411.12 OF THE
COUNCIL'S RULES. THE ASSISTANT SECRETARY DOES NOT APPEAR TO HAVE
DISREGARDED YOUR CONTENTIONS; YOUR APPEAL DOES NOT DEMONSTRATE THAT
SUBSTANTIAL FACTUAL ISSUES EXIST REQUIRING A HEARING; AND THE DECISION
OF THE ASSISTANT SECRETARY DOES NOT APPEAR TO BE WITHOUT REASONABLE
JUSTIFICATION OR IN ANY OTHER MANNER ARBITRARY AND CAPRICIOUS.
MOREOVER, YOUR PETITION NEITHER ALLEGES, NOR DOES IT APPEAR THEREFROM
THAT ANY MAJOR POLICY ISSUE IS PRESENTED BY THE ASSISTANT SECRETARY'S
DECISION.
ACCORDINGLY, SINCE YOUR PETITION FAILS TO MEET THE REQUIREMENTS FOR
REVIEW AS PROVIDED UNDER SECTION 2411.12 OF THE COUNCIL'S RULES OF
PROCEDURE, REVIEW OF YOUR APPEAL IS DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
R. E. KELLER
ANDREWS AIR FORCE BASE
2 FLRC 111; FLRC NO. 73A-50; MARCH 29, 1974.
MR. KENNETH H. CHANDLER
ACTING DIRECTOR OF PERSONNEL
AND TRAINING
OFFICE OF THE SECRETARY
U.S. DEPARTMENT OF TRANSPORTATION
WASHINGTON, D.C. 20590
(SYNOPSIS) FLRC NO. 73A-50
FEDERAL AVIATION ADMINISTRATION, U.S. DEPARTMENT OF TRANSPORTATION,
AND NATIONAL ASSOCIATION OF AIR TRAFFIC SPECIALISTS, DES MOINES, IOWA,
FLIGHT SERVICE STATION (HATCHER, ARBITRATOR). THE ARBITRATOR DETERMINED
THAT THE PARKING ACCOMMODATIONS FOR FAA EMPLOYEES, FURNISHED BY THE CITY
UNDER ITS LEASE TO THE FAA OF AIRPORT TECHNICAL FACILITIES, DID NOT MEET
THE ADEQUACY REQUIREMENTS OF FAA POLICY ON EMPLOYEE PARKING, AND THUS
VIOLATED THE NEGOTIATED AGREEMENT WHICH REQUIRED FAA TO PROVIDE ADEQUATE
PARKING IN COMPLIANCE WITH AGENCY POLICY ON PARKING AT FAA TECHNICAL
FACILITIES ON AIRPORTS. THE ARBITRATOR ALSO FOUND THAT THE FAA REGIONAL
DIRECTOR HAD MADE REPEATED BUT UNSUCCESSFUL DEMANDS OF THE CITY TO
PROVIDE ADEQUATE PARKING WHICH WOULD MEET SUCH FAA POLICY. AS A REMEDY,
THE ARBITRATOR DIRECTED THE AGENCY TO IMMEDIATELY PROVIDE, BY USE OF
AGENCY FUNDS, TEMPORARY PARKING IN SUBSTANTIAL COMPLIANCE WITH THE
AGREEMENT AND THE FAA POLICY, TO BE FURNISHED RENT-FREE UNLESS THE FAA
REGIONAL DIRECTOR DETERMINES THAT A REASONABLE COST IS APPROPRIATE,
UNTIL THE AGENCY CAN PROVIDE OTHER PARKING WHICH FULLY MEETS THE
ADEQUACY REQUIREMENTS OF THE AGREEMENT AND THE FAA POLICY. THE AGENCY
FILED EXCEPTIONS, ALLEGING IN EFFECT THAT: (1) THE ARBITRATOR EXCEEDED
HIS AUTHORITY UNDER THE AGREEMENT BY INTERPRETING AGENCY POLICY CONTRARY
TO THE AGENCY'S INTERPRETATION AND ERRONEOUSLY ADDING HIS OWN
INTERPRETATION; AND (2) THE REMEDY WOULD REQUIRE THE IMPROPER USE OF
APPROPRIATED FUNDS IN VIOLATION OF VARIOUS COMPTROLLER GENERAL DECISIONS
AND A GSA ORDER. THE AGENCY ALSO REQUESTED A STAY OF THE ARBITRATOR'S
AWARD.
COUNCIL ACTION (MARCH 29, 1974). THE COUNCIL DETERMINED THAT THE
AGENCY'S EXCEPTIONS WERE NOT SUPPORTED BY SUFFICIENT FACTS AND
CIRCUMSTANCES TO WARRANT REVIEW, AS REQUIRED BY SECTION 2411.32 OF THE
COUNCIL'S RULES (5 CFR 2411.32). REGARDING THE AGENCY'S FIRST
EXCEPTION, THE COUNCIL HELD THAT THE AGENCY MISINTERPRETED THE
ARBITRATOR'S AWARD IN WHICH HE MERELY MADE AN APPLICATION OF THE FAA
POLICY TO THE PARTICULAR FACTS OF THE GRIEVANCE, AND MADE ESSENTIALLY
THE SAME DETERMINATION AS THE AGENCY'S REGIONAL DIRECTOR, I.E., THE
PARKING WAS NOT ADEQUATE UNDER THE FAA POLICY. AS TO THE AGENCY'S
SECOND EXCEPTION, IN THE COUNCIL'S VIEW, THE APPLICABILITY OF THE GSA
ORDER AND THE VARIOUS COMPTROLLER GENERAL DECISIONS WAS NOT SHOWN.
ACCORDINGLY, THE COUNCIL DENIED THE AGENCY'S PETITION FOR REVIEW.
LIKEWISE, THE COUNCIL DENIED THE AGENCY'S REQUEST FOR A STAY UNDER
SECTION 2411.47(D) OF THE COUNCIL'S RULES (5 CFR 2411.47(D)).
DEAR MR. CHANDLER:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF AN
ARBITRATOR'S AWARD, AND THE UNION'S OPPOSITION THERETO, FILED IN THE
ABOVE-ENTITLED CASE.
AS STATED IN THE AWARD, ARTICLE VIII OF THE COLLECTIVE BARGAINING
AGREEMENT /1/ REQUIRES THE AGENCY TO PROVIDE "ADEQUATE" PARKING TO ITS
FLIGHT SERVICE EMPLOYEES AND TO COMPLY WITH AGENCY POLICY ON PARKING
ACCOMMODATIONS AT FAA FACILITIES. SUCH POLICY ON PARKING IS CONTAINED
IN FAA ORDER 4665.3A, WHICH OBLIGATES THE AGENCY TO PROVIDE "ADEQUATE"
PARKING FOR FAA EMPLOYEES ENGAGED IN THE MAINTENANCE AND OPERATION OF
ITS TECHNICAL FACILITIES ON AIRPORTS AND WHICH ESTABLISHES
CONSIDERATIONS BY WHICH SUCH ADEQUACY IS DETERMINED.
ACCORDING TO THE AWARD, THE BARGAINING UNIT EMPLOYEES INVOLVED IN
THIS CASE ARE ENGAGED IN THE MAINTENANCE AND/OR OPERATION OF FAA
TECHNICAL FACILITIES LOCATED ON THE MUNICIPAL AIRPORT AT DES MOINES,
IOWA WHICH ARE OCCUPIED UNDER A LEASE WITH THE CITY OF DES MOINES. AS
PART OF THE RENTAL CONSIDERATION, THE CITY FURNISHES FREE PARKING FOR
FAA EMPLOYEES' VEHICLES AND GOVERNMENT VEHICLES FOR THE TERM OF THE
LEASE. THE LEASE DOES NOT CONTAIN PROVISIONS ASSURING ADEQUATE EMPLOYEE
PARKING ACCOMMODATIONS AT THE TECHNICAL FACILITIES LOCATED AT THE
AIRPORT. /2/
DURING THE TERM OF THE LEASE A DISAGREEMENT AROSE BETWEEN THE FAA AND
THE CITY OF DES MOINES OVER THE ADEQUACY OF THE PARKING AFFORDED FAA
EMPLOYEES WHEN THE CITY RELOCATED THE PARKING AREA FOR EMPLOYEES,
INCLUDING THE EMPLOYEES OF FAA AND THE AIRPORT OWNER/OPERATOR AND OTHER
NON-FAA EMPLOYEES. THE AGENCY'S REGIONAL DIRECTOR ADVISED THE CITY THAT
THE NEW PARKING AREA WAS NOT "ADEQUATE" AND SOUGHT TO SECURE "ADEQUATE"
PARKING FACILITIES FOR THE FAA EMPLOYEES. IN TURN THE CITY INSISTED
THAT THE INCREASED NUMBER OF AIRPORT CUSTOMER-USERS NECESSITATED FAA'S
USE OF THE NEW PARKING AREA. THE REGIONAL DIRECTOR'S DEMANDS FOR
"ADEQUATE" PARKING WERE NOT SUCCESSFUL.
BARGAINING UNIT EMPLOYEES COMPLAINED TO FAA THAT THE NEW PARKING AREA
WAS NOT ADEQUATE. THESE COMPLAINTS CULMINATED IN THE FILING OF A
COLLECTIVE GRIEVANCE REQUESTING THAT THE AGENCY COMPLY WITH ITS
OBLIGATION TO FURNISH "ADEQUATE" PARKING UNDER ARTICLE VIII OF THE
AGREEMENT AND FAA ORDER 4665.3A. THE AGENCY AND THE UNION SUBMITTED THE
GRIEVANCE TO ARBITRATION UNDER THE AGREEMENT. /3/
THE ARBITRATOR DETERMINED THAT THE AGENCY HAD FAILED TO PROVIDE
"ADEQUATE" PARKING BECAUSE THE NEW PARKING AREA DID NOT MEET THE
ADEQUACY REQUIREMENTS IN THE FAA ORDER AND HAD THUS VIOLATED ARTICLE
VIII OF THE AGREEMENT AND FAA ORDER 4665.3A. THE ARBITRATOR DETERMINED
THAT THE FAA AGENTS WHO EXECUTED THE LEASE WERE REMISS IN THEIR DUTIES
BY FAILING TO HAVE INCLUDED IN THE LEASE A PROVISION THAT ADEQUATE FREE
EMPLOYEE PARKING ACCOMMODATIONS SHOULD BE MADE AVAILABLE AT THE
MUNICIPAL AIRPORT FOR FAA EMPLOYEES, AS AGREED WITH THE UNION IN ARTICLE
VIII OF THE AGREEMENT AND THE EMPLOYER'S ORDER 4665.3A. AS A REMEDY,
THE ARBITRATOR DIRECTED THE AGENCY TO IMMEDIATELY PROVIDE, BY USE OF
AGENCY FUNDS, TEMPORARY PARKING WHICH COMPLIES AS CLOSELY AS POSSIBLE
WITH ARTICLE VIII OF THE AGREEMENT AND FAA ORDER 4665.3A, AND THAT THE
TEMPORARY PARKING MUST BE FURNISHED RENT FREE UNLESS THE REGIONAL
DIRECTOR DETERMINES A REASONABLE COST IS APPROPRIATE UNTIL SUCH TIME AS
THE AGENCY CAN PROVIDE (EITHER BY RENEWING THE LEASE OR BY PRIOR
AGREEMENT WITH THE LESSOR) OTHER PARKING AT AN AREA WHICH FULLY COMPLIES
WITH THE "ADEQUACY REQUIREMENTS . . . AS SET FORTH IN ARTICLE VIII OF
THE AGREEMENT AND FAA ORDER 4665.3A." /4/
THE AGENCY REQUESTS THAT THE COUNCIL GRANT REVIEW OF THE ARBITRATOR'S
AWARD ON THE BASIS OF TWO EXCEPTIONS DISCUSSED BELOW. THE AGENCY ALSO
REQUESTS THAT THE COUNCIL GRANT A STAY OF THE ARBITRATOR'S AWARD PENDING
SUCH REVIEW.
UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE, REVIEW OF
AN ARBITRATION AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON
THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE
EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES
APPLICABLE LAW, APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS
SIMILAR TO THOSE UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE
SUSTAINED BY COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS."
THE AGENCY'S FIRST EXCEPTION CONTENDS, IN EFFECT, THAT THE ARBITRATOR
EXCEEDED HIS AUTHORITY UNDER ARTICLE XX, SECTION 10 OF THE AGREEMENT /5/
BY INTERPRETING THE AGENCY'S POLICY IN FAA ORDER 4665.3A CONTRARY TO THE
AGENCY'S INTERPRETATION AND ERRONEOUSLY ADDING HIS OWN INTERPRETATION TO
FAA ORDER 4665.3A. HOWEVER, THIS EXCEPTION IS NOT SUPPORTED BY FACTS
AND CIRCUMSTANCES, AS REQUIRED BY SECTION 2411.32 OF THE COUNCIL'S RULES
OF PROCEDURE. IT IS UNCONTROVERTED THAT THE ARBITRATOR WAS AUTHORIZED
BY THE PARTIES TO DETERMINE WHETHER THE FAA "HAS PROVIDED ADEQUATE
PARKING ACCOMMODATIONS AT FAA FACILITIES . . . AT DES MOINES, IOWA . . .
IN COMPLIANCE WITH ARTICLE VIII OF THE ASSOCIATION-EMPLOYER AGREEMENT
AND FEDERAL AVIATION ADMINISTRATION'S ORDER 4665.3A." MOREOVER, AS NOTED
PREVIOUSLY, ARTICLE VIII SPECIFICALLY INCORPORATES THE "FAA POLICY ON
PARKING ACCOMMODATIONS AT FAA FACILITIES." IN THE OPINION OF THE
COUNCIL, THE AGENCY HAS MISINTERPRETED THE ARBITRATOR'S AWARD IN WHICH
THE ARBITRATOR MERELY MADE AN APPLICATION OF THE PROVISIONS OF FAA ORDER
4665.3A TO THE PARTICULAR FACTS OF THE GRIEVANCE AND, IN SO DOING, MADE
ESSENTIALLY THE SAME DETERMINATION AS HAD THE AGENCY'S REGIONAL
DIRECTOR, NAMELY, THAT THE PARKING AFFORDED THE AGENCY'S EMPLOYEES WAS
NOT "ADEQUATE," AS REQUIRED BY FAA ORDER 4665.3A.
THE AGENCY, IN ITS SECOND EXCEPTION, CONTENDS THAT THE REMEDY
FASHIONED BY THE ARBITRATOR WOULD REQUIRE THE IMPROPER USE OF
APPROPRIATED FUNDS, IN VIOLATION OF VARIOUS COMPTROLLER GENERAL
DECISIONS AND A GSA ORDER. IN THE COUNCIL'S OPINION, THE APPLICABILITY
OF THE GSA ORDER AND THE CITED COMPTROLLER GENERAL DECISIONS HAS NOT
BEEN DEMONSTRATED. IT THEREFORE APPEARS TO THE COUNCIL THAT THE AGENCY
HAS NOT PROVIDED SUFFICIENT FACTS AND CIRCUMSTANCES TO SUPPORT ITS
SECOND EXCEPTION, AS REQUIRED BY SECTION 2411.32 OF THE COUNCIL'S RULES
OF PROCEDURE.
ACCORDINGLY, THE COUNCIL HAS DIRECTED THAT THE AGENCY'S PETITION FOR
REVIEW BE DENIED BECAUSE IT FAILS TO MEET THE REQUIREMENTS FOR REVIEW
SET FORTH IN SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE.
LIKEWISE, THE COUNCIL HAS DIRECTED THAT THE AGENCY'S REQUEST FOR A STAY
BE DENIED UNDER SECTION 2411.47(D) OF THE COUNCIL'S RULES.
BY THE COUNCIL.
CC: W. GRAHAM
NAATS
/1/ ARTICLE VIII (PARKING FACILITIES) PROVIDES:
TO THE EXTENT THAT FAA HAS CONTROL OVER PARKING, ADEQUATE PARKING
ACCOMMODATIONS SHALL BE
PROVIDED FOR THE PRIVATELY OWNED VEHICLES OF ON-DUTY FLIGHT SERVICE
EMPLOYEES. WHERE THE
LOCAL SITUATION PERMITS, PARKING FACILITIES MAY BE DESIGNATED AS
RESERVED FOR EMPLOYEES OF THE
FACILITY. REGIONAL OFFICIALS AND FACILITY CHIEFS SHALL ASSURE THAT
THE FAA POLICY ON PARKING
ACCOMMODATIONS AT FAA FACILITIES IS COMPLIED WITH.
/2/ SECTION 4A(2)(A) OF FAA ORDER 4665.3A PROVIDES, IN RELEVANT PART:
(A) ON AIRPORTS. ADEQUATE PARKING ACCOMMODATIONS FOR FAA EMPLOYEES
IN CLOSE PROXIMITY TO FAA
TECHNICAL FACILITIES IS CONSIDERED TO BE AN INTEGRAL PART OF EACH
FACILITY.
2 NO NEW LEASES, PERMITS OR OTHER INSTRUMENTS ARE TO BE EXECUTED OR
EXISTING ONES MODIFIED
WITHOUT THE INCLUSION OF SPECIFIC STATEMENTS ASSURING ADEQUATE
PARKING ACCOMMODATIONS AT ALL
TECHNICAL FACILITIES LOCATED ON THE AIRPORT . . .
/3/ SECTION 7 OF ARTICLE XX (GRIEVANCE PROCEDURE) OF THE AGREEMENT
PROVIDES, IN RELEVANT PART:
THE DECISION OF THE ARBITRATOR IS FINAL, EXCEPT THAT EITHER PARTY MAY
TAKE EXCEPTION TO THE
AWARD TO THE FEDERAL LABOR RELATIONS COUNCIL IN ACCORDANCE WITH ITS
REGULATIONS.
/4/ IN FASHIONING HIS REMEDY, THE ARBITRATOR EXPRESSLY RELIED UPON
PARAGRAPH 6A(2)(B) OF FAA ORDER 4665.3A, WHICH PROVIDES:
(B) EMPLOYEE PARKING AT TECHNICAL FACILITIES. A MAXIMUM EFFORT SHALL
BE MADE TO NEGOTIATE FOR
ADEQUATE EMPLOYEE PARKING. IN THE EVENT THESE EFFORTS FAIL, THE
REGIONAL DIRECTOR MAY APPROVE
THE EXPENDITURE OF FAA FUNDS TO OBTAIN TEMPORARY RELIEF FOR THE
PROBLEM UNTIL SUCH TIME AS
PARKING ACCOMMODATIONS CAN BE OBTAINED FROM THE AIRPORT OWNER/SPONSOR
. . .
/5/ ARTICLE XX, SECTION 10 PROVIDES:
THE ARBITRATOR SHALL NOT IN ANY MANNER OR FORM WHATSOEVER DIRECTLY OR
INDIRECTLY ADD TO,
SUBTRACT FROM, OR IN ANY OTHER WAY ALTER THE PROVISIONS OF THIS
AGREEMENT.
2 FLRC 106; FLRC NO. 72A-50; MARCH 29, 1974.
INTERNAL REVENUE SERVICE,
OFFICE OF THE DISTRICT DIRECTOR,
JACKSONVILLE DISTRICT, JACKSONVILLE,
FLORIDA
RESPONDENT
AND
NATIONAL TREASURY EMPLOYEE UNION,
JACKSONVILLE DISTRICT JOINT COUNCIL,
AND THE NATIONAL TREASURY EMPLOYEES UNION
COMPLAINANT
AND
UNITED STATES CIVIL SERVICE COMMISSION
(SYNOPSIS) FLRC NO. 72A-50
INTERNAL REVENUE SERVICE, OFFICE OF THE DISTRICT DIRECTOR,
JACKSONVILLE DISTRICT, JACKSONVILLE, FLORIDA, A/SLMR NO. 214. UPON A
COMPLAINT FILED BY THE NATIONAL TREASURY EMPLOYEES UNION, JACKSONVILLE
DISTRICT JOINT COUNCIL, AND THE NATIONAL TREASURY EMPLOYEES UNION, THE
ASSISTANT SECRETARY HELD THAT THE AGENCY HAD NOT VIOLATED SECTION
19(A)(6) OF THE ORDER BY REFUSING TO FURNISH THE UNION WITH THE HOME
ADDRESSES OF ALL EMPLOYEES IN THE UNION'S EXCLUSIVE BARGAINING UNIT.
THE COUNCIL ACCEPTED THE CASE FOR REVIEW, HAVING DETERMINED THAT A MAJOR
POLICY ISSUE WAS PRESENT. (REPORT NO. 42)
COUNCIL ACTION /1/ (MARCH 29, 1974). THE COUNCIL AGREED WITH THE
ASSISTANT SECRETARY THAT AN EXCLUSIVE REPRESENTATIVE IS ENTITLED TO AND,
TO THE EXTENT NECESSARY, MUST BE PROVIDED WITH EFFECTIVE MEANS OF
COMMUNICATING WITH THE EMPLOYEES IN THE UNIT. IN THIS REGARD, AGENCIES,
AS A PART OF THEIR OBLIGATION TO CONSULT, CONFER, OR NEGOTIATE WITH AN
EXCLUSIVE REPRESENTATIVE, MUST WHERE APPROPRIATE, PROVIDE AN EXCLUSIVE
REPRESENTATIVE WITH MEANS OF COMMUNICATING WITH UNIT EMPLOYEES AND A
FAILURE TO DO SO WOULD CONSTITUTE A VIOLATION OF SECTION 19(A)(6).
FURTHER, IN THIS REGARD THE COUNCIL HELD THAT A DETERMINATION OF WHETHER
AN EXCLUSIVE REPRESENTATIVE IN FACT HAS EFFECTIVE MEANS OF COMMUNICATING
WITH UNIT EMPLOYEES MUST BE MADE ON A CASE-BY-CASE BASIS. APPLYING THIS
FOREGOING IN THE INSTANT CASE, THE COUNCIL SUSTAINED THE ASSISTANT
SECRETARY'S DETERMINATION ON THE BASIS OF THE RECORD THAT THE UNION DID
IN FACT HAVE EFFECTIVE MEANS OF COMMUNICATING WITH THE UNIT EMPLOYEES
AND, THEREFORE, THE AGENCY HAD NO OBLIGATION TO PROVIDE THE UNION WITH
THE ADDITIONAL MEANS OF COMMUNICATION HERE INVOLVED.
THIS APPEAL AROSE FROM A DECISION AND ORDER OF THE ASSISTANT
SECRETARY WHO, UPON A COMPLAINT FILED BY NATIONAL TREASURY EMPLOYEES
UNION, JACKSONVILLE DISTRICT JOINT COUNCIL, AND THE NATIONAL TREASURY
EMPLOYEES UNION (HEREIN JOINTLY CALLED THE UNION), /2/ HELD THAT
INTERNAL REVENUE SERVICE, OFFICE OF THE DISTRICT DIRECTOR, JACKSONVILLE
DISTRICT, JACKSONVILLE, FLORIDA (HEREIN REFERRED TO GENERALLY AS THE
IRS), HAD NOT VIOLATED SECTION 19(A)(6) OF THE ORDER BY REFUSING TO
FURNISH THE UNION WITH THE HOME ADDRESSES OF ALL EMPLOYEES IN THE
UNION'S EXCLUSIVE BARGAINING UNIT.
THE UNDERLYING FACTS AS FOUND BY THE ADMINISTRATIVE LAW JUDGE, WHOSE
FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS WERE ADOPTED BY THE ASSISTANT
SECRETARY, ARE ESSENTIALLY UNDISPUTED. BRIEFLY THE FACTS ARE AS
FOLLOWS:
THE UNION, WHICH IS THE EXCLUSIVE BARGAINING REPRESENTATIVE FOR A
UNIT OF ALL NONSUPERVISORY PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES AT
THE ACTIVITY REQUESTED IRS TO PROVIDE IT WITH THE HOME ADDRESSES OF THE
EMPLOYEES IN THE UNIT. WHEN IRS DECLINED TO PROVIDE THE REQUESTED
INFORMATION, THE UNION FILED THE INSTANT COMPLAINT.
THE ASSISTANT SECRETARY DETERMINED, IN EFFECT, THAT AN EXCLUSIVE
REPRESENTATIVE IS ENTITLED TO AND, TO THE EXTENT NECESSARY, MUST BE
PROVIDED WITH EFFECTIVE MEANS OF COMMUNICATING WITH UNIT EMPLOYEES UNDER
THE ORDER. IN THIS REGARD, HE FOUND DISPOSITIVE IN THE INSTANT CASE
THAT THE UNION HAD ABOUT ONE STEWARD FOR EACH 40 UNIT EMPLOYEES; THE
UNION RECEIVES FROM IRS A QUARTERLY LIST OF THE NAMES OF UNIT EMPLOYEES;
IRS HAS AGREED TO PROVIDE THE UNION WITH MEETING SPACES AND BULLETIN
BOARDS; THE UNION CAN DISTRIBUTE LITERATURE IN IRS OFFICES ON NONDUTY
TIME; AND IRS PROVIDES EACH NEW EMPLOYEE WITH INFORMATION CONCERNING
THE EXISTENCE OF THE UNION, INCLUDING AN "ANNOUNCEMENT CARD" INVITING
THE EMPLOYEE TO FURNISH THE UNION WITH HIS HOME ADDRESS. ALSO NOTED WAS
THE UNION'S APPARENT FAILURE TO UTILIZE EXISTING MEANS OF COMMUNICATING
WITH UNIT EMPLOYEES, FOR EXAMPLE, USE OF IRS MEETING FACILITIES AND
VISITATION BY UNION OFFICIALS AT THE DUTY POSTS. THE ASSISTANT
SECRETARY CONCLUDED THAT ON THE FACTS OF THIS CASE THE UNION HAD
EFFECTIVE MEANS OF COMMUNICATING WITH UNIT EMPLOYEES AND DISMISSED THE
COMPLAINT. /3/
THE UNION APPEALED THE ASSISTANT SECRETARY'S DECISION TO THE COUNCIL.
THE COUNCIL FOUND THAT A MAJOR POLICY ISSUE WAS PRESENTED CONCERNING
THE CRITERIA APPLIED BY THE ASSISTANT SECRETARY IN THIS CASE AND
ACCEPTED THE PETITION FOR REVIEW ON THIS ISSUE. THE UNION FILED A BRIEF
AND A SUPPLEMENTAL SUBMISSION. /4/ IRS FILED A RESPONSE TO THE UNION'S
SUPPLEMENTAL MATERIAL AND ALSO RELIED IN EFFECT ON THE OPPOSITION WHICH
IT HAD FILED TO THE UNION'S INITIAL REQUEST FOR REVIEW. /5/
AS ALREADY INDICATED, THE ESSENCE OF THE CRITERIA ENUNCIATED BY THE
ASSISTANT SECRETARY IS THAT AN EXCLUSIVE REPRESENTATIVE IS ENTITLED TO
AND, TO THE EXTENT NECESSARY, MUST BE PROVIDED WITH EFFECTIVE MEANS OF
COMMUNICATING WITH THE EMPLOYEES IN THE UNIT. THE COUNCIL AGREES WITH
THIS DETERMINATION.
SECTION 10(E) OF THE ORDER PROVIDES THAT A LABOR ORGANIZATION WHICH
HAS BEEN SELECTED AS THE EXCLUSIVE BARGAINING REPRESENTATIVE IS ENTITLED
TO ACT FOR AND TO NEGOTIATE AGREEMENTS COVERING ALL EMPLOYEES IN THE
UNIT AND IT IS RESPONSIBLE FOR REPRESENTING THE INTERESTS OF ALL
EMPLOYEES IN THE UNIT WITHOUT DISCRIMINATION AND WITHOUT REGARD TO LABOR
ORGANIZATION MEMBERSHIP. /6/
TO THIS END, IN OUR OPINION, THE IMPLEMENTATION OF THE PROVISIONS OF
SECTION 10(E) OF THE ORDER REQUIRES THAT THE EXCLUSIVE REPRESENTATIVE
HAVE EFFECTIVE MEANS OF COMMUNICATING WITH UNIT EMPLOYEES. MOREOVER,
AGENCIES, AS A PART OF THEIR OBLIGATION TO CONSULT, CONFER, OR NEGOTIATE
WITH AN EXCLUSIVE REPRESENTATIVE, MUST WHERE APPROPRIATE, PROVIDE AN
EXCLUSIVE REPRESENTATIVE WITH MEANS OF COMMUNICATING WITH UNIT EMPLOYEES
AND A FAILURE TO DO SO WOULD CONSTITUTE A VIOLATION OF SECTION 19(A)(6).
A DETERMINATION OF WHETHER AN EXCLUSIVE REPRESENTATIVE IN FACT HAS
EFFECTIVE MEANS OF COMMUNICATING WITH UNIT EMPLOYEES MUST BE MADE ON A
CASE-BY-CASE BASIS. IN MANY INSTANCES, LITTLE OR NO ACTION BY THE
AGENCY WOULD BE NECESSARY TO SUPPLEMENT THE MEANS OF COMMUNICATION
READILY AVAILABLE TO THE UNION ON ITS OWN INITIATIVE. ON THE OTHER
HAND, IN SOME INSTANCES WHERE BECAUSE OF SUCH FACTORS AS THE SIZE OF
UNIT, GEOGRAPHIC DISPERSION OF EMPLOYEES, ISOLATED DUTY LOCATIONS, ETC.,
THE UNION MAY NOT HAVE EFFECTIVE MEANS OF COMMUNICATING WITH THE UNIT
EMPLOYEES. IN SUCH SITUATIONS, AS STATED ABOVE, THE PROPER
IMPLEMENTATION OF THE ORDER MIGHT REQUIRE THAT THE AGENCY ASSIST THE
EXCLUSIVE REPRESENTATIVE IN FACILITATING SUCH COMMUNICATION, CONSISTENT
WITH LAW AND REGULATION, E.G., BY PROVIDING THE UNION WITH THE PERIODIC
USE OF THE INTRAAGENCY MAILING SYSTEM OR ADDRESSING ENVELOPES CONTAINING
UNION MATERIAL AND DEPOSITING THOSE ENVELOPES IN THE U.S. MAIL FOR
DELIVERY TO EMPLOYEES AT THEIR HOME ADDRESSES. A FAILURE TO PROVIDE THE
EXCLUSIVE BARGAINING REPRESENTATIVE SUCH ACCESS TO EMPLOYEES IN THE
UNIT, WHERE REQUIRED, WOULD CONSTITUTE A FAILURE ON THE PART OF THE
AGENCY TO MEET ITS OBLIGATION TO CONSULT, CONFER, OR NEGOTIATE WITH THE
EXCLUSIVE REPRESENTATIVE IN VIOLATION OF SECTION 19(A)(6) OF THE ORDER.
IN THE INSTANT CASE, APPLYING THE CRITERION THAT A UNION MUST HAVE
EFFECTIVE MEANS OF COMMUNICATING WITH UNIT EMPLOYEES, THE ASSISTANT
SECRETARY DETERMINED, ON THE BASIS OF THE RECORD, THAT THE UNION DID IN
FACT HAVE EFFECTIVE MEANS OF COMMUNICATING WITH THE UNIT EMPLOYEES AND,
THEREFORE, IRS HAD NO OBLIGATION TO PROVIDE THE UNION WITH ADDITIONAL
SUCH MEANS OF COMMUNICATION. ACCORDINGLY, THE IRS'S ACTIONS DID NOT
VIOLATE SECTION 19(A)(6) OF THE ORDER. THE ASSISTANT SECRETARY'S
DECISION IS CLEARLY SUPPORTED BY THE RECORD AND CONSISTENT WITH THE
PURPOSES OF THE ORDER. /7/
ACCORDINGLY, PURSUANT TO SECTION 2411.17(B) OF THE COUNCIL'S RULES OF
PROCEDURE, WE SUSTAIN THE ASSISTANT SECRETARY'S DISMISSAL OF THE
COMPLAINT.
BY THE COUNCIL. /8/
ISSUED: MARCH 29, 1974
/1/ THE CHAIRMAN OF THE CIVIL SERVICE COMMISSION DID NOT PARTICIPATE
IN THIS DECISION.
/2/ THE NAME OF THE UNION APPEARS AS AMENDED DURING THE PENDENCY OF
THE INSTANT PROCEEDING.
/3/ THE ASSISTANT SECRETARY FOUND IT UNNECESSARY TO CONSIDER THE
CONTENTION OF THE CIVIL SERVICE COMMISSION THAT HE WAS BARRED BY CERTAIN
CSC REGULATIONS FROM ORDERING THE IRS TO FURNISH THE UNION WITH THE
ADDRESSES OF EMPLOYEES IN THE UNIT, STATING THAT HIS DECISION SHOULD NOT
BE CONSTRUED TO MEAN THAT HE NECESSARILY AGREES WITH THE CONTENTION.
THE ASSISTANT SECRETARY ALSO SPECIFICALLY DID NOT ADOPT THE FINDING OF
THE ALJ TO THE EXTENT THAT HE IMPLIES THAT WHERE AN EXCLUSIVE
REPRESENTATIVE HAS SEVERAL DIFFERENT MEANS IN WHICH TO COMMUNICATE WITH
THE UNIT EMPLOYEES, EACH OF WHICH ALONE MAY BE INADEQUATE TO PROVIDE
EFFECTIVE COMMUNICATION, THE CUMULATIVE EFFECT OF THE VARIOUS MEANS
AVAILABLE MAY NEVERTHELESS PROVIDE THE UNION WITH AN ADEQUATE MEANS OF
COMMUNICATING WITH UNIT EMPLOYEES.
/4/ THE UNION ALSO REQUESTED AN OPPORTUNITY TO PRESENT ORAL ARGUMENT
BEFORE THE COUNCIL. THE REQUEST IS DENIED AS THE RECORD ADEQUATELY
REFLECTS THE ISSUES AND THE RESPECTIVE POSITIONS OF THE PARTIES.
/5/ THE UNITED STATES CIVIL SERVICE COMMISSION MADE NO SUBMISSION.
/6/ MOREOVER SECTION 13 REQUIRES THAT AN AGREEMENT BETWEEN AN AGENCY
AND A LABOR ORGANIZATION MUST CONTAIN A GRIEVANCE PROCEDURE FOR THE
CONSIDERATION OF GRIEVANCES OVER THE INTERPRETATION OR APPLICATION OF
THE AGREEMENT. OF COURSE, THE EXCLUSIVE REPRESENTATIVE'S INTERACTION
WITH UNIT EMPLOYEES IN AN INTEGRAL PART OF SUCH A GRIEVANCE PROCEDURE.
/7/ LIKE THE ASSISTANT SECRETARY, WE FIND IT UNNECESSARY IN THIS CASE
TO CONSIDER THE PROPRIETY OF THE CSC REGULATION WHICH PROHIBITS AN
AGENCY FROM FURNISHING A UNION WITH THE HOME ADDRESSES OF EMPLOYEES.
/8/ THE CHAIRMAN OF THE CIVIL SERVICE COMMISSION DID NOT PARTICIPATE
IN THIS DECISION.
2 FLRC 103; FLRC NO. 73A-63; MARCH 20, 1974.
MR. RAYMOND J. MALLOY
ASSISTANT GENERAL COUNSEL
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
1325 MASSACHUSETTS AVENUE, NW.
WASHINGTON, D.C. 20005
(SYNOPSIS) FLRC NO. 73A-63
DEPARTMENT OF THE ARMY, UNITED STATES ARMY BASE COMMAND, OKINAWA,
A/SLMR NO. 243. THE ASSISTANT SECRETARY, IN PERTINENT PART, EXCLUDED
SEVERAL EMPLOYEE CLASSIFICATIONS FROM AN ACTIVITY-WIDE UNIT BECAUSE THEY
WERE VESTED WITH SUPERVISORY AUTHORITY OVER FOREIGN NATIONALS, AND HE
MADE NO DETERMINATION WITH REGARD TO ANOTHER CLASSIFICATION BECAUSE OF
AN ABSENCE OF INFORMATION CONCERNING THE INCUMBENT'S DUTIES AND EXTENT
OF DIRECTION OVER FOREIGN NATIONALS. IN REACHING HIS DECISION, THE
ASSISTANT SECRETARY RELIED UPON PRINCIPLES ENUNCIATED IN HIS DECISION IN
DEPARTMENT OF THE AIR FORCE, MCCONNELL AIR FORCE BASE, KANSAS, A/SLMR
NO. 134 (UPHELD BY THE COUNCIL, FLRC NO. 72A-15 (APRIL 17, 1973), REPORT
NO. 36), WHICH STATED, IN EFFECT, THAT THE DETERMINING FACTORS WITH
REGARD TO SUPERVISORY STATUS ARE THE DUTIES PERFORMED BY, RATHER THAN
THE TYPE OF PERSONNEL WORKING UNDER, THE ALLEGED SUPERVISOR. THE UNION
APPEALED TO THE COUNCIL, ALLEGING THAT THE ASSISTANT SECRETARY'S
DECISION PRESENTS A MAJOR POLICY ISSUE OR APPEARS ARBITRARY AND
CAPRICIOUS PRINCIPALLY BECAUSE: THE AGENCY FAILED TO PRODUCE EVIDENCE
CONCERNING THE SUPERVISORY DUTIES OF THE INCUMBENTS IN THE DISPUTED
CLASSIFICATIONS; THE ASSISTANT SECRETARY'S FINDINGS WERE NOT SUPPORTED
BY THE WEIGHT OF THE EVIDENCE IN THE RECORD; THE ASSISTANT SECRETARY
FAILED TO ADHERE TO APPLICABLE PRECEDENT; AND THE MCCONNELL PRINCIPLES
ARE NOT DISPOSITIVE.
COUNCIL ACTION (MARCH 20, 1974). THE COUNCIL HELD THAT THE ASSISTANT
SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY AND CAPRICIOUS BECAUSE IT
DOES NOT APPEAR THAT HE ACTED WITHOUT REASONABLE JUSTIFICATION IN HIS
FINDINGS. THE COUNCIL ALSO HELD THAT THE SUBJECT DECISION DOES NOT
PRESENT A MAJOR POLICY ISSUE, SINCE THE ASSISTANT SECRETARY'S DECISION
IS CONSISTENT WITH MCCONNELL AND OTHER PERTINENT COUNCIL DECISIONS.
ACCORDINGLY, THE COUNCIL DENIED REVIEW OF THE UNION'S APPEAL UNDER
SECTION 2411.12 OF THE COUNCIL'S RULES OF PROCEDURE (5 CFR 2411.12).
DR. MR. MALLOY:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE, AND THE
AGENCY'S OPPOSITION THERETO.
THE ASSISTANT SECRETARY, IN PERTINENT PART, EXCLUDED SEVERAL EMPLOYEE
CLASSIFICATIONS FROM THE ACTIVITY-WIDE UNIT BECAUSE THEY WERE VESTED
WITH SUPERVISORY AUTHORITY OVER FOREIGN NATIONALS. HE FURTHER MADE NO
DETERMINATION AS TO ANOTHER CATEGORY'S INCLUSION OR EXCLUSION FROM THE
UNIT BECAUSE OF THE ABSENCE OF SPECIFIC INFORMATION AS TO THE
INCUMBENT'S DUTIES AND THE EXTENT TO WHICH HE PROVIDES DIRECTION TO
FOREIGN NATIONALS. IN REACHING HIS DETERMINATION, THE ASSISTANT
SECRETARY RELIED UPON THE PRINCIPLES ENUNCIATED IN HIS DECISION IN
DEPARTMENT OF THE AIR FORCE, MCCONNELL AIR FORCE BASE, KANSAS, A/SLMR
NO. 134 (UPHELD BY THE COUNCIL, FLRC NO. 72A-15 (APRIL 17, 1973),
REPORT NO. 36) WHERE HE EXCLUDED FROM THE RECOGNIZED UNIT, AS
SUPERVISORS, INDIVIDUALS WHO EXERCISED SUPERVISORY AUTHORITY OVER
MILITARY PERSONNEL WHO WERE NOT "EMPLOYEES" AS DEFINED BY SECTION 2(B)
OF THE ORDER. IN THAT CASE, THE ASSISTANT SECRETARY STATED, IN EFFECT,
THAT THE DETERMINATIVE FACTORS WITH REGARD TO SUPERVISORY STATUS ARE THE
DUTIES PERFORMED BY, RATHER THAN THE TYPE OF PERSONNEL WORKING UNDER,
THE ALLEGED SUPERVISOR.
IN YOUR PETITION FOR REVIEW YOU CONTEND THAT THE ASSISTANT
SECRETARY'S DECISION APPEARS ARBITRARY AND CAPRICIOUS OR THAT A MAJOR
POLICY ISSUE IS PRESENTED PRINCIPALLY BECAUSE: THE AGENCY FAILED TO
PRODUCE EVIDENCE RELATING TO THE SUPERVISORY DUTIES OF THE INCUMBENTS IN
THE DISPUTED CLASSIFICATIONS; THE ASSISTANT SECRETARY'S FINDINGS ARE
NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE IN THE RECORD; THE
ASSISTANT SECRETARY FAILED TO ADHERE TO APPLICABLE PRECEDENTS IN
REACHING HIS DETERMINATION; AND BECAUSE THE MCCONNELL PRINCIPLES RELIED
ON BY THE ASSISTANT SECRETARY ARE NOT DISPOSITIVE OF THE INSTANT CASE
SINCE MCCONNELL WAS NOT CONCERNED WITH SUPERVISION OF FOREIGN NATIONALS
AS ARE HERE INVOLVED.
IN THE COUNCIL'S OPINION, YOUR APPEAL DOES NOT MEET THE REQUIREMENTS
FOR REVIEW AS PROVIDED IN SECTION 2411.12 OF THE COUNCIL'S RULES OF
PROCEDURE. THAT IS, IN OUR VIEW, THE ASSISTANT SECRETARY'S DECISION
DOES NOT APPEAR ARBITRARY AND CAPRICIOUS, NOR DOES IT PRESENT A MAJOR
POLICY ISSUE. WITH RESPECT TO YOUR CONTENTIONS THAT HIS DECISION
APPEARS ARBITRARY AND CAPRICIOUS, IT DOES NOT APPEAR THAT THE ASSISTANT
SECRETARY ACTED WITHOUT REASONABLE JUSTIFICATION. AS TO THE ALLEGED
MAJOR POLICY ISSUES, THE ASSISTANT SECRETARY'S DECISION CLEARLY IS
CONSISTENT WITH THE COUNCIL'S DECISIONS IN MCCONNELL AND OTHER PERTINENT
CASES. /1/
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS AND DOES NOT PRESENT A MAJOR POLICY ISSUE, YOUR APPEAL
FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED IN SECTION 2411.12
OF THE COUNCIL'S RULES OF PROCEDURE. ACCORDINGLY, REVIEW OF YOUR APPEAL
IS HEREBY DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
G. L. OLMSTED
ARMY
/1/ SEE, E.G. MARE ISLAND NAVAL SHIPYARD, VALLEJO, CALIFORNIA, A/SLMR
NO. 129, FLRC NO. 72A-12 (MAY 25, 1973), REPORT NO. 40; UNITED STATES
NAVAL WEAPONS CENTER, CHINA LAKE, CALIFORNIA, A/SLMR NO. 128, FLRC NO.
72A-11 (MAY 25, 1973), REPORT NO. 40; AND UNITED STATES DEPARTMENT OF
AGRICULTURE, NORTHERN MARKETING AND NUTRITION RESEARCH DIVISION, PEORIA
ILLINOIS, A/SLMR NO. 120, FLRC NO. 72A-4 (APRIL 17, 1973), REPORT NO.
36.
2 FLRC 100; FLRC NO. 73A-62; MARCH 20, 1974.
MR. MICHAEL SUSSMAN
STAFF ATTORNEY
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES
1737 H STREET, NW.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 73A-62
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-32 (FORT
LEONARD WOOD), FORT LEONARD WOOD, MISSOURI, ASSISTANT SECRETARY CASE NO.
62-3712 (CO). THE ASSISTANT SECRETARY UPHELD THE REGIONAL
ADMINISTRATOR'S DISMISSAL OF THE COMPLAINT FILED BY THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES (NFFE), WHICH COMPLAINT ALLEGED THAT
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES (NAGE) LOCAL R14-32
VIOLATED SECTION 19(B)(1) OF THE ORDER BY SOLICITING SIGNATURES FOR A
REPRESENTATION ELECTION PETITION DURING DUTY HOURS. THE ASSISTANT
SECRETARY FOUND THAT NAGE DID NOT VIOLATE SECTION 19(B)(1) SINCE THERE
WAS NO EVIDENCE THAT SUCH CONDUCT INTERFERED WITH, RESTRAINED, OR
COERCED THE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS UNDER SECTION 1(A)
OF THE ORDER. NFFE APPEALED TO THE COUNCIL ALLEGING THAT THE ASSISTANT
SECRETARY'S DECISION PRESENTS A MAJOR POLICY ISSUE CONCERNING WHETHER A
UNION MAY BE CHARGED BY ANOTHER UNION WITH AN UNFAIR LABOR PRACTICE
UNDER SECTION 19(B)(1) FOR SOLICITING ELECTION PETITION SIGNATURES FROM
EMPLOYEES DURING DUTY HOURS.
COUNCIL ACTION (MARCH 20, 1974). THE COUNCIL, WITHOUT ADOPTING THE
REASONING REFLECTED IN THE PRECISE LANGUAGE USED BY ASSISTANT SECRETARY
CONCERNING UNION ACTIVITIES BY EMPLOYEE SUPPORTERS DURING DUTY HOURS,
DETERMINED THAT THE ASSISTANT SECRETARY'S DECISION PRESENTED NO MAJOR
POLICY ISSUE. THE COUNCIL FURTHER HELD THAT THE PETITION NEITHER
ALLEGED, NOR DID IT OTHERWISE APPEAR, THAT THE ASSISTANT SECRETARY'S
DECISION WAS ARBITRARY AND CAPRICIOUS. ACCORDINGLY, THE COUNCIL DENIED
REVIEW OF NFFE'S APPEAL PURSUANT TO SECTION 2411.12 OF THE COUNCIL'S
RULES OF PROCEDURE (5 CFR 2411.12).
DEAR MR. SUSSMAN:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
THE ASSISTANT SECRETARY'S DECISION UPHELD THE REGIONAL
ADMINISTRATOR'S DISMISSAL OF YOUR COMPLAINT THAT THE NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES (NAGE) LOCAL R14-32 HAD VIOLATED
SECTION 19(B)(1) OF THE ORDER BY ALLEGEDLY SOLICITING, DURING DUTY
HOURS, SIGNATURES FOR A REPRESENTATION ELECTION PETITION. THE ASSISTANT
SECRETARY FOUND THAT NAGE DID NOT VIOLATE SECTION 19(B)(1) OF THE ORDER
SINCE THERE WAS NO EVIDENCE THAT SUCH CONDUCT INTERFERED WITH,
RESTRAINED, OR COERCED THE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS
UNDER SECTION 1(A) OF THE ORDER.
YOU CONTEND IN YOUR PETITION FOR REVIEW THAT THE ASSISTANT
SECRETARY'S DECISION PRESENTS A MAJOR POLICY ISSUE CONCERNING WHETHER A
UNION MAY BE CHARGED BY ANOTHER UNION WITH AN UNFAIR LABOR PRACTICE
UNDER SECTION 19(B)(1) OF THE ORDER FOR SOLICITING ELECTION PETITION
SIGNATURES FROM EMPLOYEES DURING DUTY HOURS.
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW DOES NOT MEET THE
CONSIDERATIONS GOVERNING REVIEW ESTABLISHED BY SECTION 2411.12 OF THE
COUNCIL'S RULES. THAT IS, WITHOUT ADOPTING THE REASONING REFLECTED IN
THE PRECISE LANGUAGE USED BY THE ASSISTANT SECRETARY IN HIS DECISION
CONCERNING UNION ACTIVITIES BY EMPLOYEE SUPPORTERS DURING DUTY HOURS, NO
MAJOR POLICY ISSUE IS PRESENTED WITH RESPECT TO THE MEANING OF SECTION
19(B)(1) OF THE ORDER BY THE ASSISTANT SECRETARY'S DECISION IN THIS
CASE. MOREOVER, YOU DO NOT ALLEGE, NOR DOES IT OTHERWISE APPEAR, THAT
SUCH DECISION WAS IN ANY MANNER ARBITRARY AND CAPRICIOUS.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS AND DOES NOT PRESENT A MAJOR POLICY ISSUE, YOUR APPEAL
FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED IN SECTION 2411.12
OF THE COUNCIL'S RULES OF PROCEDURE. ACCORDINGLY, YOUR PETITION FOR
REVIEW IS DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
G. J. ARRINGTON
NAGE
R. SIMBOLI
FT. LEONARD WOOD
2 FLRC 97; FLRC NO. 73A-58; MARCH 20, 1974.
MR. L. M. PELLERZI
GENERAL COUNSEL
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
1325 MASSACHUSETTS AVENUE, NW.
WASHINGTON, D.C. 20005
(SYNOPSIS) FLRC NO. 73A-58
UNITED STATES AIR FORCE 321ST COMBAT SUPPORT GROUP, GRAND FORKS AIR
FORCE BASE, NORTH DAKOTA, A/SLMR NO. 319. THE ASSISTANT SECRETARY
DISMISSED A REPRESENTATION PETITION FILED BY AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES (AFGE) LOCAL 3379 BECAUSE HE FOUND IT BARRED BY A
DRAFT AGREEMENT BETWEEN NATIONAL FEDERATION OF FEDERAL EMPLOYEES LOCAL
1347 AND THE ACTIVITY. IN THIS CONNECTION, THE ASSISTANT SECRETARY
FOUND THAT THE AGREEMENT CONTAINED SUBSTANTIAL AND FINALIZED TERMS AND
CONDITIONS OF EMPLOYMENT SUFFICIENT TO STABILIZE THE BARGAINING
RELATIONSHIP, AND HAD BEEN TIMELY SIGNED BY AUTHORIZED REPRESENTATIVES
OF THE PARTIES ON THE LAST DAY OF A NINETY DAY PERIOD DURING WHICH THEY
COULD NEGOTIATE SUCH AN AGREEMENT FREE FROM A RIVAL UNION'S CLAIM FOR
REPRESENTATION (PURSUANT TO SECTION 202.3(D) OF THE ASSISTANT
SECRETARY'S REGULATIONS). AFGE APPEALED TO THE COUNCIL, ASSERTING THAT
THE ASSISTANT SECRETARY'S DECISION WAS ARBITRARY AND CAPRICIOUS BECAUSE
IT DID NOT RESOLVE CREDIBILITY ISSUES POSED BY THE RECORD, AND BECAUSE
THE ASSISTANT SECRETARY'S FINDINGS OF FACT REGARDING THE CONCLUSION OF
THE AGREEMENT BY THE PARTIES WERE UNSUPPORTED BY SUBSTANTIAL CREDITABLE
EVIDENCE.
COUNCIL ACTION (MARCH 20, 1974). THE COUNCIL HELD THAT THE ASSISTANT
SECRETARY'S DECISION DID NOT APPEAR ARBITRARY AND CAPRICIOUS BECAUSE HE
MADE DISPOSITIVE FINDINGS OF FACT, AND IT DID NOT APPEAR FROM AFGE'S
APPEAL THAT THE DECISION WAS WITHOUT REASONABLE JUSTIFICATION.
MOREOVER, THE COUNCIL RULED THAT AFGE'S APPEAL DID NOT ALLEGE, NOR DID
IT APPEAR THEREFROM, THAT ANY MAJOR POLICY ISSUE WAS PRESENTED BY THE
ASSISTANT SECRETARY'S DECISION. ACCORDINGLY, THE COUNCIL DENIED REVIEW
OF AFGE'S APPEAL PURSUANT TO SECTION 2411.12 OF THE COUNCIL'S RULES OF
PROCEDURE (5 CFR 2411.12).
DEAR MR. PELLERZI:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION, AND THE AGENCY'S OPPOSITION THERETO, IN
THE ABOVE-ENTITLED CASE.
IN HIS DECISION, THE ASSISTANT SECRETARY DISMISSED A REPRESENTATION
PETITION FILED ON OCTOBER 30, 1972, BY AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES (AFGE), AFL-CIO, LOCAL 3379, BECAUSE THE PETITION WAS BARRED
BY AN AGREEMENT ENTERED INTO BETWEEN THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES (NFFE) LOCAL 1347 AND THE ACTIVITY. IN THIS REGARD, THE
ASSISTANT SECRETARY FOUND THAT ON OCTOBER 26, 1972, THE LAST DAY OF A
NINETY DAY PERIOD DURING WHICH NFFE LOCAL 1347 AND THE ACTIVITY COULD
NEGOTIATE AN AGREEMENT FREE FROM A RIVAL UNION'S CLAIM FOR
REPRESENTATION (PURSUANT TO SECTION 202.3(D) OF THE ASSISTANT
SECRETARY'S REGULATIONS), THE PRESIDENT OF NFFE LOCAL 1347 AND THE
CIVILIAN PERSONNEL OFFICER OF THE ACTIVITY SIGNED A DRAFT OF A
COLLECTIVE BARGAINING AGREEMENT WHICH CONTAINED SUBSTANTIAL AND
FINALIZED TERMS AND CONDITIONS OF EMPLOYMENT SUFFICIENT TO STABILIZE THE
BARGAINING RELATIONSHIP. THE ASSISTANT SECRETARY FURTHER FOUND THAT THE
CIVILIAN PERSONNEL OFFICER HAD BEEN AUTHORIZED BY THE BASE COMMANDER TO
SIGN SUCH AN AGREEMENT ON BEHALF OF THE ACTIVITY. BASED ON THESE
FINDINGS, THE ASSISTANT SECRETARY DETERMINED THAT THIS DRAFT AGREEMENT
WAS BINDING ON THE PARTIES, AND PROPERLY BARRED A SUBSEQUENTLY FILED
REPRESENTATION PETITION.
IN YOUR PETITION FOR REVIEW, YOU CONTEND THAT THE DECISION OF THE
ASSISTANT SECRETARY WAS ARBITRARY AND CAPRICIOUS BECAUSE THE ASSISTANT
SECRETARY DID NOT RESOLVE CREDIBILITY ISSUES POSED BY THE RECORD, AND
BECAUSE HE MADE FINDINGS OF FACT CONCERNING THE CONCLUSION OF AN
AGREEMENT ON OCTOBER 26, 1972, WHICH ARE UNSUPPORTED BY SUBSTANTIAL
CREDITABLE EVIDENCE.
IN THE OPINION OF THE COUNCIL, YOUR APPEAL DOES NOT MEET THE
REQUIREMENT FOR REVIEW UNDER SECTION 2411.12 OF THE COUNCIL'S RULES.
THAT IS, THE ASSISTANT SECRETARY'S ACTIONS DO NOT APPEAR ARBITRARY AND
CAPRICIOUS, FOR HE MADE DISPOSITIVE FINDINGS OF FACT, AND IT DOES NOT
APPEAR FROM YOUR APPEAL THAT THE DECISION WAS WITHOUT REASONABLE
JUSTIFICATION. MOREOVER, YOUR APPEAL NEITHER ALLEGES, NOR DOES IT
APPEAR THEREFROM, THAT ANY MAJOR POLICY ISSUE IS PRESENTED BY THE
ASSISTANT SECRETARY'S DECISION. ACCORDINGLY, SINCE YOUR PETITION FAILS
TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED UNDER SECTION 2411.12 OF
THE COUNCIL'S RULES OF PROCEDURE, REVIEW OF YOUR APPEAL IS HEREBY
DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
CAPT. J. E. DUMERER
USAF
M. A. FORSCEY
NFFE
2 FLRC 94; FLRC NO. 73A-55; MARCH 20, 1974.
MR. WILLIAM R. TAIT, JR.
MCNERNEY, PAGE, VANDERLIN & HALL
433 MARKET STREET
WILLIAMSPORT, PENNSYLVANIA 17701
(SYNOPSIS) FLRC NO. 73A-55
DEPARTMENT OF JUSTICE, U.S. BUREAU OF PRISONS, U.S. PENITENTIARY,
LEWISBURG, PENNSYLVANIA, ASSISTANT SECRETARY CASE NO. 20-4035 (AP). THE
ASSISTANT SECRETARY DENIED THE REQUEST OF THE UNION (LODGE 148, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES) FOR AN EXTENSION OF TIME IN WHICH TO
REQUEST REVIEW OF THE REGIONAL ADMINISTRATOR'S DECISION IN THE SUBJECT
CASE WHICH REQUEST FOR EXTENSION, PREDICATED ON THE ABSENCE ON VACATION
OF THE UNION'S COUNSEL, WAS RECEIVED BY THE ASSISTANT SECRETARY TWO DAYS
LATE UNDER SECTION 202.6(D) OF THE ASSISTANT SECRETARY'S REGULATIONS.
THE UNION APPEALED TO THE COUNCIL ALLEGING THAT THE ASSISTANT
SECRETARY'S DECISION WAS ARBITRARY AND CAPRICIOUS, DENYING THE UNION DUE
PROCESS UNDER THE SPIRIT, INTENT AND LETTER OF THE ORDER.
COUNCIL ACTION (MARCH 20, 1974). THE COUNCIL HELD THAT THE DECISION
OF THE ASSISTANT SECRETARY APPLYING HIS RULES IN THE CIRCUMSTANCES OF
THIS CASE DOES NOT APPEAR IN ANY MANNER ARBITRARY AND CAPRICIOUS. ALSO,
THE APPEAL DID NOT ALLEGE, NOR DOES IT APPEAR THEREFROM, THAT THE
ASSISTANT SECRETARY'S DECISION PRESENTS A MAJOR POLICY ISSUE.
ACCORDINGLY, THE COUNCIL DENIED REVIEW OF THE UNION'S APPEAL UNDER
SECTION 2411.12 OF THE COUNCIL'S RULES OF PROCEDURE (5 CFR 2411.12).
DEAR MR. TAIT:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE, AND THE
AGENCY'S OPPOSITION THERETO.
THE ASSISTANT SECRETARY DENIED YOUR REQUEST FOR AN EXTENSION OF TIME
IN WHICH TO REQUEST REVIEW OF THE REGIONAL ADMINISTRATOR'S DECISION IN
THE SUBJECT CASE, WHICH REQUEST FOR EXTENSION (PREDICATED ON YOUR
ABSENCE ON VACATION) WAS RECEIVED BY THE ASSISTANT SECRETARY ON THE LAST
DAY OF THE FILING OF REQUEST FOR REVIEW. THE ASSISTANT SECRETARY BASED
HIS DECISION ON SECTION 202.6(D) OF HIS REGULATIONS WHICH PROVIDES, IN
PERTINENT PART, THAT: "REQUESTS FOR AN EXTENSION OF TIME SHALL BE IN
WRITING AND RECEIVED BY THE ASSISTANT SECRETARY NOT LATER THAN THREE (3)
DAYS BEFORE THE DATE THE REQUEST FOR REVIEW IS DUE." THE ASSISTANT
SECRETARY DETERMINED THAT CONSIDERATIONS OF UNIFORM AND EXPEDITIOUS
HANDLING OF CASES COMPELLED ADHERENCE TO THE TIMELINESS REQUIREMENTS OF
HIS REGULATIONS.
IN YOUR PETITION FOR REVIEW YOU CONTEND THAT THE ASSISTANT
SECRETARY'S DECISION WAS ARBITRARY AND CAPRICIOUS, DENYING YOU DUE
PROCESS UNDER THE SPIRIT, INTENT AND LETTER OF THE ORDER.
SECTION 2411.12 OF THE COUNCIL'S RULES PROVIDES THAT A "PETITION FOR
REVIEW OF A DECISION OF THE ASSISTANT SECRETARY IS NOT A MATTER OF
RIGHT, BUT OF DISCRETION, AND, SUBJECT TO THE REQUIREMENTS OF THIS PART,
WILL GRANTED ONLY WHERE THERE ARE MAJOR POLICY ISSUES PRESENT OR WHERE
IT APPEARS THAT THE DECISION WAS ARBITRARY AND CAPRICIOUS." YOUR
PETITION FOR REVIEW FAILS TO MEET THESE REQUIREMENTS.
IN THE COUNCIL'S OPINION, THE DECISION OF THE ASSISTANT SECRETARY
APPLYING HIS RULES IN THE CIRCUMSTANCES OF THE INSTANT CASE DOES NOT
APPEAR IN ANY MANNER ARBITRARY AND CAPRICIOUS. ALSO, YOU NEITHER
ALLEGED IN YOUR APPEAL, NOR DOES IT APPEAR THEREFROM, THAT THE ASSISTANT
SECRETARY'S DECISION PRESENTS A MAJOR POLICY ISSUE.
ACCORDINGLY, AS YOUR APPEAL FAILS TO MEET THE REQUIREMENTS FOR REVIEW
AS PROVIDED IN SECTION 2411.12 OF THE COUNCIL'S RULES OF PROCEDURE,
REVIEW OF YOUR APPEAL IS HEREBY DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
R. ALPHER
BUREAU OF PRISONS
2 FLRC 91; FLRC NO. 73A-54; MARCH 20, 1974.
MR. WILLIAM A. LANG
EXECUTIVE DIRECTOR
OREGON NURSES ASSOCIATION, INC.
620 SOUTHWEST 5TH AVENUE
PORTLAND, OREGON 97204
(SYNOPSIS) FLRC NO. 73A-54
VETERANS ADMINISTRATION HOSPITAL, PORTLAND, OREGON, A/SLMR NO. 308.
THE ASSISTANT SECRETARY, APPLYING THE PRINCIPLES ENUNCIATED IN UNITED
STATES NAVAL CONSTRUCTION BATTALION CENTER, A/SLMR NO. 8, DISMISSED THE
REPRESENTATION PETITION OF THE OREGON NURSES ASSOCIATION (ONA) SEEKING
TO SEVER A SEGMENT OF PROFESSIONAL (STAFF NURSES) FROM AN ACTIVITY-WIDE
UNIT OF ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES. THE ONA
APPEALED TO THE COUNCIL, CONTENDING THAT THE ASSISTANT SECRETARY'S
DECISION IS ARBITRARY AND CAPRICIOUS BASED ON EVIDENCE IN THE RECORD;
AND IN EFFECT THAT A MAJOR POLICY ISSUE IS PRESENTED CONCERNING THE
ADOPTION BY THE COUNCIL OF A NEW POLICY WITH REGARD TO THE
REPRESENTATION RIGHTS OF PROFESSIONALS.
COUNCIL ACTION (MARCH 20, 1974). THE COUNCIL HELD THAT THE ASSISTANT
SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY AND CAPRICIOUS SINCE IT
DOES NOT APPEAR THAT THE ASSISTANT SECRETARY ACTED WITHOUT REASONABLE
JUSTIFICATION IN HIS DECISION. ALSO, THE COUNCIL HELD THAT THE
ASSISTANT SECRETARY'S DETERMINATION IS CONSISTENT WITH PRECEDENT
DECISIONS BY THE COUNCIL AND, SINCE NO PERSUASIVE REASONS WERE ADVANCED
BY THE UNION FOR OVERTURNING THESE PRECEDENTS, NO MAJOR POLICY ISSUE IS
PRESENTED. ACCORDINGLY, THE COUNCIL DENIED REVIEW OF THE ONA'S APPEAL
PURSUANT TO SECTION 2411.12 OF THE COUNCIL'S RULES OF PROCEDURE (5 CFR
2411.12).
DEAR MR. LANG:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE, AND THE
AGENCY'S OPPOSITION THERETO.
THE ASSISTANT SECRETARY DISMISSED THE REPRESENTATION PETITION OF THE
OREGON NURSES ASSOCIATION SEEKING TO SEVER A SEGMENT OF PROFESSIONALS
(STAFF NURSES) FROM AN ACTIVITY-WIDE UNIT OF ALL PROFESSIONAL AND
NONPROFESSIONAL EMPLOYEES AT THE VETERANS ADMINISTRATION HOSPITAL,
PORTLAND, OREGON. IN PARTICULAR, THE ASSISTANT SECRETARY FOUND THAT THE
EVIDENCE DID NOT ESTABLISH THAT THERE HAD BEEN A FAILURE OR REFUSAL OF
THE ACTIVITY-WIDE UNIT REPRESENTATIVE TO RENDER FAIR AND EFFECTIVE
REPRESENTATION TO THE EMPLOYEES IN THE UNIT SOUGHT. RATHER, IN HIS
VIEW, THE RECORD DISCLOSED THAT A HARMONIOUS RELATIONSHIP HAD BEEN
MAINTAINED FOR SEVERAL YEARS BETWEEN THE ACTIVITY AND THE ACTIVITY-WIDE
REPRESENTATIVE WITH RESPECT TO ALL UNIT EMPLOYEES, INCLUDING THOSE IN
THE PETITIONED-FOR UNIT. FURTHER, APPLYING THE PRINCIPLES ENUNCIATED IN
UNITED STATES NAVAL CONSTRUCTION BATTALION CENTER, A/SLMR NO. 8, IN
WHICH THE ASSISTANT SECRETARY CONCLUDED THAT " . . . WHERE THE EVIDENCE
SHOWS THAT AN ESTABLISHED, EFFECTIVE AND FAIR COLLECTIVE BARGAINING
RELATIONSHIP IS IN EXISTENCE, A SEPARATE UNIT CARVED OUT OF THE EXISTING
UNIT WILL NOT BE FOUND APPROPRIATE EXCEPT IN UNUSUAL CIRCUMSTANCES," THE
ASSISTANT SECRETARY FOUND NO SUCH "UNUSUAL CIRCUMSTANCES" IN THE PRESENT
CASE.
IN YOUR PETITION FOR REVIEW YOU CONTEND THAT THE ASSISTANT
SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS, PRINCIPALLY BECAUSE HE
FAILED TO TAKE COGNIZANCE OF EVIDENCE IN THE RECORD WHICH ALLEGEDLY
DEMONSTRATED THAT A FAIR AND EFFECTIVE COLLECTIVE BARGAINING
RELATIONSHIP ON BEHALF OF THE STAFF NURSES DID NOT EXIST, AND BECAUSE HE
FAILED TO FIND THAT "UNUSUAL CIRCUMSTANCES" EXISTED WHICH WARRANTED THE
ESTABLISHMENT OF A SEPARATE UNIT OF STAFF NURSES. ADDITIONALLY, IN
EFFECT, YOU CONTEND THAT THE ASSISTANT SECRETARY'S DECISION PRESENTS A
MAJOR POLICY ISSUE CONCERNING THE ADOPTION BY THE COUNCIL OF A NEW
POLICY WITH REGARD TO THE REPRESENTATION RIGHTS OF PROFESSIONALS UNDER
THE ORDER.
IN OUR VIEW YOUR PETITION FOR REVIEW OF THE ASSISTANT SECRETARY'S
DECISION DOES NOT MEET THE REQUIREMENTS OF SECTION 2411.12 OF THE
COUNCIL'S RULES; HIS FINDINGS AND DECISION DO NOT APPEAR ARBITRARY AND
CAPRICIOUS NOR DO THEY PRESENT A MAJOR POLICY ISSUE. WITH RESPECT TO
YOUR CONTENTIONS RELATING TO MATTERS RELIED UPON BY THE ASSISTANT
SECRETARY IN HIS DETERMINATION, IT DOES NOT APPEAR THAT THE ASSISTANT
SECRETARY ACTED WITHOUT REASONABLE JUSTIFICATION IN HIS DECISION.
AS TO THE ALLEGED MAJOR POLICY ISSUE, THE PRINCIPLES APPLIED BY THE
ASSISTANT SECRETARY IN THIS CASE WERE SPECIFICALLY APPROVED BY THE
COUNCIL IN DEPARTMENT OF THE NAVY, NAVAL AIR STATION, CORPUS CHRISTI,
TEXAS, A/SLMR NO. 150, FLRC NO. 72A-24 (MAY 22, 1973). FURTHER, IN
VETERANS ADMINISTRATION CENTER, TOGUS, MAINE, A/SLMR NO. 84, FLRC NO.
71A-42 AND VETERANS ADMINISTRATION CENTER, MOUNTAIN HOME, TENNESSEE,
A/SLMR NO. 89, FLRC NO. 71A-45 (JUNE 22, 1972), THE COUNCIL HELD THAT
NOTHING IN SECTION 10(B)(4) OF THE ORDER IMPLIES OR REQUIRES THAT A
SEGMENT OF PROFESSIONALS BE ACCORDED ANY SPECIAL RIGHT OF SEVERANCE FROM
MORE COMPREHENSIVE UNITS OF AN ACTIVITY'S EMPLOYEES. IN THE INSTANT
CASE, NO PERSUASIVE REASONS ARE ADVANCED FOR OVERTURNING THESE
PRECEDENTS. THEREFORE, WE CONCLUDE THAT THE SUBJECT DECISION OF THE
ASSISTANT SECRETARY PRESENTS NO MAJOR POLICY ISSUE.
ACCORDINGLY, BECAUSE YOUR APPEAL FAILS TO MEET THE REQUIREMENTS FOR
REVIEW AS PROVIDED UNDER SECTION 2411.12 OF THE COUNCIL'S RULES OF
PROCEDURE, REVIEW OF YOUR APPEAL IS DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
R. E. COY
VA
2 FLRC 88; FLRC NO. 73A-48; FEBRUARY 28, 1974.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 53
AND
NAVY REGIONAL FINANCE CENTER
NORFOLK, VIRGINIA
(SYNOPSIS) FLRC NO. 73A-48
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 53, AND NAVY
REGIONAL FINANCE CENTER, NORFOLK, VIRGINIA. THE NEGOTIABILITY DISPUTE
IN THIS CASE INVOLVED A PROPOSAL CONCERNING THE GENERAL PHRASE "SUCH
OTHER DUTIES AS MAY BE ASSIGNED" IN POSITION DESCRIPTIONS.
COUNCIL ACTION (FEBRUARY 28, 1974). THE COUNCIL, BASED ON ITS
DECISION IN THE LOUISVILLE NAVAL ORDNANCE STATION CASE, FLRC NO. 73A-21
(REPORT NO. 48), RULED THAT THE PROVISION IS NEGOTIABLE UNDER SECTION
11(A) OF THE ORDER. ACCORDINGLY, THE AGENCY HEAD'S CONTRARY
DETERMINATION WAS SET ASIDE.
THE UNION (AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 53) IS
THE EXCLUSIVE BARGAINING REPRESENTATIVE FOR A UNIT OF ALL ELIGIBLE
CIVILIAN EMPLOYEES AT THE NAVY REGIONAL FINANCE CENTER, NORFOLK,
VIRGINIA.
DURING THE AGENCY REVIEW OF A PROPOSED AGREEMENT BETWEEN THE UNION
AND THE ACTIVITY, THE DEPARTMENT OF THE NAVY DISAPPROVED A PORTION OF A
PROVISION IN THE AGREEMENT CONCERNING USE OF THE PHRASE, "SUCH OTHER
DUTIES AS MAY BE ASSIGNED," IN POSITION DESCRIPTIONS. THE DISPUTED
PROVISION AS UNDERLINED BELOW READS AS FOLLOWS:
IT IS AGREED THAT EACH POSITION DESCRIPTION SHALL FULLY SPELL OUT THE
DUTIES OF THE
EMPLOYEE. WHEN THE CATCHALL PHRASE, "AND SUCH OTHER DUTIES AS MAY BE
ASSIGNED" IS INCLUDED IN
A POSITION DESCRIPTION, THE EMPLOYER AGREES THAT IT SHALL NOT, EXCEPT
IN UNUSUAL
CIRCUMSTANCES, BE USED AS A BASIS FOR ASSIGNING DUTIES TO AN EMPLOYEE
WHICH ARE UNRELATED TO
HIS PRINCIPAL DUTIES.
UPON REFERRAL, THE DEPARTMENT OF DEFENSE UPHELD THE POSITION OF THE
NAVY, DETERMINING THAT THE DISPUTED PORTION OF THE PROVISION WAS
NONNEGOTIABLE UNDER THE ORDER. THE UNION APPEALED THIS DETERMINATION TO
THE COUNCIL UNDER SECTION 11(C)(4) OF THE ORDER AND THE AGENCY FILED A
STATEMENT OF POSITION.
THE QUESTION BEFORE THE COUNCIL RELATES TO THE NEGOTIABILITY OF THE
UNION'S PROPOSED PROVISION CONCERNING USE OF THE PHRASE "SUCH OTHER
DUTIES AS MAY BE ASSIGNED" IN POSITION DESCRIPTIONS.
IN OUR VIEW THE PROVISION HERE IN DISPUTE BEARS NO MATERIAL
DIFFERENCE FROM THE UNION'S PROPOSAL CONCERNING POSITION DESCRIPTIONS
WHICH WAS BEFORE THE COUNCIL AND HELD NEGOTIABLE IN LOCAL LODGE 830, IAM
AND LOUISVILLE NAVAL ORDNANCE STATION, DEPARTMENT OF THE NAVY, FLRC NO.
73A-21 (JANUARY 31, 1974).
THEREFORE, BASED ON THE APPLICABLE DISCUSSION AND ANALYSIS IN THE
LOUISVILLE NAVAL ORDNANCE DECISION, THE DISPUTED PORTION OF ARTICLE 17,
SECTION 5, UNDER CONSIDERATION IN THE INSTANT CASE, MUST ALSO BE HELD TO
BE NEGOTIABLE.
FOR THE FOREGOING REASONS, WE FIND THAT ARTICLE 17, SECTION 5 IS
NEGOTIABLE UNDER THE ORDER. ACCORDINGLY, PURSUANT TO SECTION 2411.27 OF
THE COUNCIL'S RULES OF PROCEDURE, THE AGENCY HEAD'S CONTRARY
DETERMINATION MUST BE SET ASIDE. THIS DECISION, HOWEVER, SHALL NOT BE
CONSTRUED AS EXPRESSING OR IMPLYING ANY OPINION OF THE COUNCIL AS TO THE
MERTIS OF THE PROVISION. WE DECIDE ONLY THAT, AS SUBMITTED, AND BASED
ON THE RECORD BEFORE US, THE PROVISION IS PROPERLY SUBJECT TO
NEGOTIATION BY THE PARTIES UNDER SECTION 11(A) OF THE ORDER.
BY THE COUNCIL.
ISSUED: FEB 28 1974
2 FLRC 85; FLRC NO. 73A-45; FEBRUARY 28, 1974.
MS. MARY T. WALDROP
POST OFFICE BOX 5761
BIRMINGHAM, ALABAMA 35209
(SYNOPSIS) FLRC NO. 73A-45
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, BUREAU OF RETIREMENT AND
SURVIVORS INSURANCE PAYMENT CENTER, BIRMINGHAM, ALABAMA, ASSISTANT
SECRETARY CASE NO. 40-4708 (CA). THE ASSISTANT SECRETARY UPHELD THE
REGIONAL ADMINISTRATOR'S DISMISSAL OF THE COMPLAINT FILED BY EMPLOYEE
MARY T. WALDROP, WHICH ALLEGED THAT THE AGENCY VIOLATED SECTION 19(A)(1)
AND (3) OF THE ORDER BY INVITING THE EXCLUSIVE BARGAINING
REPRESENTATIVES TO BE PRESENT AT THE MEETING TO DISCUSS HER PROMOTIONAL
APPRAISAL. ACCORDING TO THE FINDINGS OF THE REGIONAL ADMINISTRATOR, THE
REPRESENTATIVE, UPON REQUEST OF WALDROP, LEFT THE SUBJECT MEETING AND
WALDROP WAS INFORMED OF THE AGENCY'S POSITION THAT THE REPRESENTATIVE
DOES NOT HAVE THE RIGHT TO BE PRESENT DURING THE INFORMAL STAGES OF A
GRIEVANCE UNLESS SPECIFICALLY REQUESTED BY THE GRIEVANT. THE ASSISTANT
SECRETARY FOUND NO EVIDENCE THAT THE ACTIVITY ENGAGED IN ACTS WHICH
CONSTITUTED EITHER INTERFERENCE WITH HER RIGHTS UNDER THE ORDER OR
IMPROPER ASSISTANCE TO THE UNION WITHIN THE MEANING OF SECTION 19(A)(3)
OF THE ORDER, AND NO EVIDENCE TO SUPPORT HER CONTENTION THAT THE
REGIONAL ADMINISTRATOR DECIDED THE CASE WITHOUT FULLY AND FAIRLY
CONSIDERING ALL RELEVANT EVIDENCE.
WALDROP APPEALED TO THE COUNCIL ALLEGING, IN EFFECT, THAT THE
ACTIVITY'S ACTION WAS AN UNLAWFUL INTERFERENCE WITH EMPLOYEE RIGHTS
UNDER THE ORDER AND THAT THE ASSISTANT SECRETARY IMPROPERLY REFUSED TO
ORDER A HEARING ON HER COMPLAINT.
COUNCIL ACTION (FEBRUARY 28, 1974). THE COUNCIL HELD THAT NOTHING IN
THE APPEAL INDICATES THAT ANY SUBSTANTIAL FACTUAL ISSUES EXIST WHICH
REQUIRED A HEARING BY THE ASSISTANT SECRETARY, OR THAT THE ASSISTANT
SECRETARY'S DECISION WAS IN ANY MANNER ARBITRARY AND CAPRICIOUS.
MOREOVER, WITHOUT PASSING UPON THE PRECISE REASONING OF THE ASSISTANT
SECRETARY, THE COUNCIL DETERMINED THAT NO MAJOR POLICY ISSUE IS
PRESENTED BY THE ASSISTANT SECRETARY'S DECISION. ACCORDINGLY, THE
COUNCIL DENIED REVIEW OF WALDROP'S APPEAL PURSUANT TO SECTION 2411.12 OF
THE COUNCIL'S RULES OF PROCEDURE (5 CFR 2411.12).
DEAR MS. WALDROP:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE AND THE
AGENCY'S OPPOSITION THERETO.
THE ASSISTANT SECRETARY'S DECISION UPHELD THE REGIONAL
ADMINISTRATOR'S DISMISSAL OF YOUR COMPLAINT WHICH ALLEGED THAT THE
AGENCY HAD VIOLATED SECTION 19(A)(1) AND (3) OF THE ORDER BY INVITING
THE EXCLUSIVE BARGAINING REPRESENTATIVE TO BE PRESENT AT THE MEETING TO
DISCUSS YOUR PROMOTIONAL APPRAISAL. THE REGIONAL ADMINISTRATOR FOUND IN
THIS REGARD THAT YOU OBJECTED TO THE REPRESENTATIVE'S PRESENCE AND
REQUESTED THAT SHE LEAVE. IMMEDIATELY AFTER YOU MADE YOUR REQUEST, THE
REPRESENTATIVE LEFT AND DID NOT PARTICIPATE OR ACT AS AN OBSERVER AT THE
MEETING. ADDITIONALLY, YOU WERE INFORMED THAT THE AGENCY TAKES THE
POSITION THAT THE EXCLUSIVE REPRESENTATIVE'S OBSERVER DOES NOT HAVE THE
RIGHT TO BE PRESENT DURING THE INFORMAL STAGES OF A GRIEVANCE UNLESS
SPECIFICALLY REQUESTED BY THE GRIEVANT.
THE ASSISTANT SECRETARY FOUND NO EVIDENCE THAT THE ACTIVITY ENGAGED
IN ANY INDEPENDENT ACTS WHICH CONSTITUTED EITHER INTERFERENCE WITH YOUR
RIGHTS UNDER THE ORDER OR IMPROPER ASSISTANCE TO THE UNION WITHIN THE
MEANING OF SECTION 19(A)(3) OF THE ORDER, AND NO EVIDENCE TO SUPPORT
YOUR CONTENTION THAT THE REGIONAL ADMINISTRATOR DECIDED THE CASE WITHOUT
FULLY AND FAIRLY CONSIDERING ALL RELEVANT EVIDENCE.
YOUR PETITION FOR REVIEW ALLEGES, IN EFFECT, THAT THE ACTIVITY'S
ACTION WAS AN UNLAWFUL INTERFERENCE WITH EMPLOYEE RIGHTS UNDER THE ORDER
AND THAT THE ASSISTANT SECRETARY IMPROPERLY REFUSED TO ORDER A HEARING
ON YOUR COMPLAINT.
IN THE COUNCIL'S OPINION, NOTHING IN YOUR APPEAL INDICATES THAT ANY
SUBSTANTIAL FACTUAL ISSUES EXIST WHICH REQUIRED A HEARING BY THE
ASSISTANT SECRETARY, OR THAT THE ASSISTANT SECRETARY'S DECISION WAS IN
ANY MANNER ARBITRARY AND CAPRICIOUS. MOREOVER, THE COUNCIL IS OF THE
OPINION THAT, WITHOUT PASSING UPON THE PRECISE REASONING OF THE
ASSISTANT SECRETARY, NO MAJOR POLICY ISSUE IS PRESENTED BY THE ASSISTANT
SECRETARY'S DECISION.
ACCORDINGLY, YOUR APPEAL FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS
PROVIDED UNDER SECTION 2411.12 OF THE COUNCIL'S RULES OF PROCEDURE. THE
COUNCIL HAS THEREFORE DIRECTED THAT REVIEW OF YOUR APPEAL BE DENIED.
BY DIRECTION OF THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
E. J. LISTERMAN
SSA
2 FLRC 82; FLRC NO. 73A-4; FEBRUARY 12, 1974.
MR. CLYDE M. WEBBER, NATIONAL PRESIDENT
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES (AFL-CIO)
1325 MASSACHUSETTS AVENUE, NW.
WASHINGTON, DC 20005
MR. CARL E. GRANT
DIRECTOR OF PERSONNEL
SMALL BUSINESS ADMINISTRATION
1441 L STREET, NW.
WASHINGTON, DC 20416
(SYNOPSIS) FLRC NO. 73A-4
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2532 AND SMALL
BUSINESS ADMINISTRATION (DORSEY, ARBITRATOR). THE ARBITRATOR DETERMINED
THAT THE AGENCY VIOLATED THE PARTIES' COLLECTIVE BARGAINING AGREEMENT BY
THE AGENCY'S REASSIGNMENT OF CERTAIN EMPLOYEES, IN IMPLEMENTING A
"REORGANIZATION," WITHOUT PRIOR NOTICE TO OR CONSULTATION WITH THE
UNION. AS A REMEDY, THE ARBITRATOR AWARDED THE REASSIGNED EMPLOYEES THE
RIGHT TO REMAIN ON THEIR REASSIGNMENTS OR TO WITHDRAW AND EXERCISE
"RIGHTS OF ASSIGNMENT TO A POSITION AS SUCH RIGHTS EXISTED RELATIVE TO A
REDUCTION-IN-FORCE" ON THE DATE OF THE REASSIGNMENTS. THE AGENCY FILED
EXCEPTIONS TO THE AWARD. THE COUNCIL DENIED REVIEW OF THE AGENCY'S
PETITION AS FAILING TO MEET THE REQUIREMENTS FOR REVIEW UNDER THE
COUNCIL'S RULES (CASE REPORT NO. 36). SUBSEQUENTLY, THE UNION FILED A
MOTION THAT THE COUNCIL ORDER A SHOW-CAUSE HEARING AS TO WHY THE COUNCIL
SHOULD NOT DIRECT THE AGENCY TO IMPLEMENT THE AWARD WITH RESPECT TO
ROBERT H. MORGAN, AN EMPLOYEE WHO WAS REASSIGNED AND THEREAFTER RETIRED.
COUNCIL ACTION (FEBRUARY 12, 1974). THE COUNCIL DETERMINED THAT A
DISPUTE EXISTED BETWEEN THE PARTIES AS TO THE MEANING OF THE AWARD WITH
RESPECT TO MORGAN, AND DIRECTED THE PARTIES (1) TO RESUBMIT THE AWARD TO
THE ARBITRATOR FOR CLARIFICATION AND INTERPRETATION OF THE AWARD WITH
RESPECT TO MORGAN; AND (2) WITHIN 15 DAYS AFTER THE ARBITRATOR'S
ACTION, TO FILE WITH THE COUNCIL THE AWARD AS CLARIFIED AND INTERPRETED
AND ANY EXCEPTIONS THERETO WHICH THE RESPECTIVE PARTIES WISH TO BE
CONSIDERED BY THE COUNCIL.
GENTLEMEN:
REFERENCE IS MADE TO THE UNION'S MOTION THAT THE COUNCIL ORDER A
SHOW-CAUSE HEARING AS TO WHY THE COUNCIL SHOULD NOT DIRECT
IMPLEMENTATION OF THE ARBITRATION AWARD IN THE ABOVE-ENTITLED CASE WITH
RESPECT TO ROBERT HO. MORGAN.
UPON CAREFUL CONSIDERATION OF THE UNION'S MOTION, AND THE AGENCY'S
OPPOSITION THERETO, THE COUNCIL IS OF THE OPINION THAT THERE EXISTS
BETWEEN THE PARTIES A DISPUTE AS TO THE MEANING OF THE ARBITRATOR'S
AWARD WITH RESPECT TO MORGAN. ACCORDINGLY, IN ACCORDANCE WITH SECTION
2411.37(B) OF THE COUNCIL'S RULES, THE PARTIES ARE DIRECTED: (1) TO
RESUBMIT THE AWARD TO THE ARBITRATOR FOR CLARIFICATION AND
INTERPRETATION OF THE AWARD WITH RESPECT TO MORGAN; AND (2) WITHIN 15
DAYS AFTER THE ARBITRATOR'S ACTION, TO FILE WITH THE COUNCIL THE AWARD
AS CLARIFIED AND INTERPRETED AND ANY EXCEPTIONS THERETO WHICH THE
RESPECTIVE PARTIES WISH TO BE CONSIDERED BY THE COUNCIL. THE
RESUBMISSION TO THE ARBITRATOR WOULD ONLY BE FOR CLARIFICATION AND
INTERPRETATION OF THE AWARD PREVIOUSLY MADE, NOT FOR RELITIGATING OR
MODIFYING THE AWARD. THE PURPOSE OF THE RESUBMISSION IN THIS CASE WOULD
BE TO ASK THE ARBITRATOR TO DETERMINE ONLY WHETHER OR NOT HIS AWARD
APPLIES TO ONE OF THE "EMPLOYEES WHO WERE REASSIGNED" AND THEREAFTER
RETIRED.
PENDING RECEIPT OF THE AWARD AS CLARIFIED AND INTERPRETED AND ANY
EXCEPTIONS THERETO, THE COUNCIL WILL HOLD THIS CASE IN ABEYANCE.
BY DIRECTION OF THE COUNCIL.
2 FLRC 79; FLRC NO. 74A-6; FEBRUARY 7, 1974.
MR. STEWART WEINBERG
LEVY, VAN BOURG & HACKLER
45 POLK STREET
SAN FRANCISCO, CALIFORNIA 94102
(SYNOPSIS) FLRC NO. 74A-6
NORTHWEST AREA EXCHANGE (AAFES), A/SLMR NO. 338. SERVICE EMPLOYEES
INTERNATIONAL UNION (SEIU) LOCALS 49 AND 92 APPEALED TO THE COUNCIL FROM
THE ASSISTANT SECRETARY'S DECISION AND DIRECTION OF ELECTIONS. HOWEVER,
NO FINAL DISPOSITION IN THE CASE HAD BEEN RENDERED AS TO EITHER SEIU
LOCAL 49 OR LOCAL 92.
COUNCIL ACTION (FEBRUARY 7, 1974). THE COUNCIL DENIED REVIEW OF THE
SEIU LOCALS' INTERLOCUTORY APPEAL, WITHOUT PREJUDICE TO THE RENEWAL OF
THEIR CONTENTIONS IN A PETITION DULY FILED WITH THE COUNCIL AFTER A
FINAL DECISION ON THE ENTIRE CASE BY THE ASSISTANT SECRETARY.
DEAR MR. WEINBERG:
REFERENCE IS MADE TO YOUR PETITION FOR REVIEW OF THE ASSISTANT
SECRETARY'S DECISION AND DIRECTION OF ELECTIONS, FILED ON BEHALF OF
SERVICE EMPLOYEES INTERNATIONAL UNION (SEIU) LOCALS 49 AND 92, IN THE
ABOVE-ENTITLED CASE.
IN HIS DETERMINATION, THE ASSISTANT SECRETARY DIRECTED AN ELECTION IN
AN ACTIVITY-WIDE UNIT SOUGHT BY THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1504, AND SELF-DETERMINATION ELECTIONS IN SEPARATE
UNITS SOUGHT BY SEIU LOCALS 49 AND 92, RESPECTIVELY. NO FINAL
DISPOSITION IN THE CASE HAS BEEN RENDERED AS PERTAINS TO EITHER SEIU
LOCAL 49 OR LOCAL 92.
SECTION 2411.41 OF THE COUNCIL'S RULES OF PROCEDURE PROHIBITS
INTERLOCUTORY APPEALS. THAT IS, THE COUNCIL WILL NOT CONSIDER A
PETITION FOR REVIEW OF AN ASSISTANT SECRETARY'S DECISION UNTIL A FINAL
DECISION HAS BEEN RENDERED ON THE ENTIRE PROCEEDING BEFORE HIM, AS
PERTAINS TO THE APPELLANT. MORE PARTICULARLY, IN A CASE SUCH AS HERE
INVOLVED, THE COUNCIL WILL ENTERTAIN AN APPEAL ONLY AFTER CERTIFICATIONS
OF REPRESENTATIVES OR OF THE RESULTS OF THE ELECTIONS HAVE ISSUED, OR
AFTER OTHER FINAL DISPOSITION HAS BEEN MADE OF THE ENTIRE REPRESENTATION
MATTER, AS PERTAINS TO THE APPELLANTS, BY THE ASSISTANT SECRETARY.
SINCE A FINAL DECISION HAS NOT BEEN SO RENDERED IN THE PRESENT CASE,
AND APART FROM OTHER CONSIDERATIONS, THE COUNCIL HAS DIRECTED THAT YOUR
APPEAL BE DENIED, WITHOUT PREJUDICE TO THE RENEWAL OF YOUR CONTENTIONS
IN A PETITION DULY FILED WITH THE COUNCIL AFTER A FINAL DECISION ON THE
ENTIRE CASE BY THE ASSISTANT SECRETARY.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
NORTHWEST AREA EXCHANGE
AAFES
J. D. HARVISON
AFGE
2 FLRC 76; FLRC NO. 73A-52; JANUARY 31, 1974.
MR. GABRIEL P. CARDIELLO
123 GORDON STREET
RIDGEFIELD PARK, NEW JERSEY 07660
(SYNOPSIS) FLRC NO. 73A-52
MILITARY OCEAN TERMINAL, BAYONNE, NEW JERSEY, ASSISTANT SECRETARY
CASE NO. 32-3101. THE ASSISTANT SECRETARY UPHELD THE REGIONAL
ADMINISTRATOR'S DISMISSAL OF THE COMPLAINT FILED BY GABRIEL P.
CARDIELLO, WHICH COMPLAINT ALLEGED AGENCY VIOLATION OF SECTION 19(A)(1)
AND (2) OF THE ORDER BY REASON OF THE ABOLITION OF THE COMPLAINANT'S JOB
AT THE ACTIVITY. THE ASSISTANT SECRETARY FOUND THAT CARDIELLO HAD NOT
ESTABLISHED A REASONABLE BASIS FOR HIS COMPLAINT. CARDIELLO APPEALED TO
THE COUNCIL ALLEGING, IN ESSENCE, THAT THE DECISION OF THE ASSISTANT
SECRETARY WAS ARBITRARY AND CAPRICIOUS BECAUSE THE ASSISTANT SECRETARY
FAILED TO ATTACH SUFFICIENT WEIGHT TO EVIDENCE SUBMITTED BY THE
COMPLAINANT AND FAILED TO PROVIDE A HEARING ON THE COMPLAINT.
COUNCIL ACTION (JANUARY 31, 1974). THE COUNCIL HELD THAT NOTHING IN
CARDIELLO'S APPEAL INDICATED ANY PERSUASIVE EVIDENCE WHICH WAS NOT
PROPERLY CONSIDERED BY THE ASSISTANT SECRETARY, OR ANY SUBSTANTIAL
FACTUAL ISSUES WHICH REQUIRED A HEARING, OR THAT THE ASSISTANT
SECRETARY'S DECISION WAS IN ANY OTHER MANNER ARBITRARY AND CAPRICIOUS.
MOREOVER, WITHOUT PASSING ON THE PRECISE REASONING ADOPTED BY THE
ASSISTANT SECRETARY, THE COUNCIL DETERMINED THAT THE ASSISTANT
SECRETARY'S DECISION PRESENTED NO MAJOR POLICY ISSUE. ACCORDINGLY, THE
COUNCIL DENIED REVIEW OF CARDIELLO'S APPEAL PURSUANT TO SECTION 2411.12
OF THE COUNCIL'S RULES OF PROCEDURE.
DEAR MR. CARDIELLO:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
THE ASSISTANT SECRETARY UPHELD THE REGIONAL ADMINISTRATOR'S DISMISSAL
OF YOUR COMPLAINT, WHICH COMPLAINT ALLEGED THAT THE AGENCY VIOLATED
SECTION 19(A)(1) AND (2) OF THE ORDER BY REASON OF THE ABOLISHMENT OF
YOUR JOB AT THE MILITARY OCEAN TERMINAL. IN THIS REGARD, THE ASSISTANT
SECRETARY FOUND THAT YOU HAD NOT ESTABLISHED A REASONABLE BASIS FOR YOUR
COMPLAINT THAT THE ACTIVITY INTERFERED WITH YOUR RIGHTS ASSURED BY THE
ORDER AND DISCRIMINATED AGAINST YOU BECAUSE OF YOUR UNION ACTIVITIES.
IN YOUR APPEAL YOU ALLEGE, IN ESSENCE, THAT THE DECISION OF THE
ASSISTANT SECRETARY IS ARBITRARY AND CAPRICIOUS BECAUSE HE FAILED TO
ATTACH SUFFICIENT WEIGHT TO THE EVIDENCE WHICH YOU SUBMITTED AND FAILED
TO PROVIDE A HEARING ON YOUR COMPLAINT.
IN THE COUNCIL'S OPINION, NOTHING IN YOUR APPEAL INDICATES THAT ANY
PERSUASIVE EVIDENCE WAS ADDUCED WHICH WAS NOT PROPERLY CONSIDERED BY THE
ASSISTANT SECRETARY; OR THAT ANY SUBSTANTIAL FACTUAL ISSUES EXIST WHICH
REQUIRED A HEARING BY THE ASSISTANT SECRETARY; OR THAT THE ASSISTANT
SECRETARY'S DECISION WAS IN ANY OTHER MANNER ARBITRARY AND CAPRICIOUS.
MOREOVER, THE COUNCIL IS OF THE OPINION THAT, WITHOUT PASSING UPON THE
PRECISE REASONING ADOPTED BY THE ASSISTANT SECRETARY, NO MAJOR POLICY
ISSUE IS PRESENTED BY THE ASSISTANT SECRETARY'S DECISION.
ACCORDINGLY, YOUR PETITION FAILS TO MEET THE REQUIREMENTS FOR REVIEW
AS PROVIDED UNDER SECTION 2411.12 OF THE COUNCIL'S RULES OF PROCEDURE,
AND THE COUNCIL HAS THEREFORE DIRECTED THAT REVIEW OF YOUR APPEAL BE
DENIED.
BY DIRECTION OF THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
J. CUTRONE
ARMY
2 FLRC 65; FLRC NO. 73A-22; JANUARY 31, 1974.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES LOCAL 997
AND
VETERANS ADMINISTRATION HOSPITAL,
MONTGOMERY, ALABAMA
(SYNOPSIS) FLRC NO. 73A-22
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 997 AND VETERANS
ADMINISTRATION HOSPITAL, MONTGOMERY, ALABAMA. THE NEGOTIABILITY DISPUTE
INVOLVED THE UNION'S PROPOSALS CONCERNING (1) THE ASSIGNMENT OF OFFICER
OF THE DAY DUTIES TO UNIT PHYSICIANS; AND (2) MEMBERSHIP OF A
UNION-RECOMMENDED UNIT PHYSICIAN ON AGENCY PROFESSIONAL STANDARDS BOARDS
WHEN SUCH BOARDS CONSIDER WHETHER TO RECOMMEND THE PROMOTION OF UNIT
PHYSICIANS.
COUNCIL ACTION (JANUARY 31, 1974). WITH RESPECT TO (1), THE COUNCIL
HELD THAT THE PROPOSAL WOULD LIMIT MANAGEMENT'S AUTHORITY TO ESTABLISH
STAFFING PATTERNS FOR ITS ORGANIZATION AND THE ACCOMPLISHMENT OF ITS
WORK AND THAT SUCH STAFFING PATTERNS ARE EXCEPTED FROM THE AGENCY'S
OBLIGATION TO BARGAIN BY SECTION 11(B) OF THE ORDER. HENCE, THE AGENCY
DETERMINATION OF NONNEGOTIABILITY WAS SUSTAINED. AS TO (2), THE COUNCIL
HELD THAT THE UNION'S PROPOSAL IS NEGOTIABLE UNDER SECTION 11(A) OF THE
ORDER AND, CONTRARY TO THE AGENCY DETERMINATION, RULED THAT NEGOTIATION
IS NOT PRECLUDED BY SECTION 12(B)(2) OF THE ORDER, OR BY AGENCY
REGULATIONS.
THE UNION REPRESENTS A UNIT OF PHYSICIANS AT THE VETERANS
ADMINISTRATION (VA) HOSPITAL, MONTGOMERY, ALABAMA. DURING NEGOTIATIONS
BETWEEN THE PARTIES, THE UNION ADVANCED PROPOSALS DEALING WITH: (1) THE
ASSIGNMENT OF OFFICER OF THE DAY (O.D.) DUTIES TO UNIT PHYSICIANS; AND,
(2) MEMBERSHIP OF A UNION-RECOMMENDED UNIT PHYSICIAN ON AGENCY
PROFESSIONAL STANDARDS BOARDS WHEN SUCH BOARDS CONSIDER WHETHER TO
RECOMMEND THE PROMOTION OF UNIT PHYSICIANS.
THE ACTIVITY ASSERTED THAT THE PROPOSALS ARE NONNEGOTIABLE. UPON
REFERRAL, THE AGENCY HEAD UPHELD THE ACTIVITY'S POSITION ON THE GROUNDS,
PRINCIPALLY, AS TO THE O.D. DUTY PROPOSAL, THAT IT CONFLICTS WITH
SECTION 11(B) OF THE ORDER; AND, AS TO THE PROFESSIONAL STANDARDS
BOARDS PROPOSAL, THAT IT VIOLATES SECTION 12(B)(2) OF THE ORDER AND
AGENCY REGULATIONS.
THE UNION APPEALED TO THE COUNCIL SEEKING REVIEW OF THESE AGENCY HEAD
DETERMINATIONS. THE AGENCY FILED A STATEMENT OF POSITION IN SUPPORT OF
ITS DETERMINATIONS.
THE NEGOTIABILITY QUESTIONS RAISED WITH RESPECT TO EACH PROPOSAL WILL
BE CONSIDERED SEPARATELY, BELOW.
1. THE O.D. DUTY PROPOSAL. VA HOSPITALS OPERATE CONTINUOUSLY, 24
HOURS A DAY, 7 DAYS PER WEEK. PHYSICIANS SERVE AS O.D. TO PROVIDE
MEDICAL SUPERVISION AT NIGHT, ON WEEKENDS, AND ON HOLIDAYS. IF
PHYSICIAN STAFFING IN THE UNIT SHOULD FALL AND REMAIN BELOW THE
AUTHORIZED LEVEL FOR 30 DAYS, THE UNION'S PROPOSAL WOULD REQUIRE THE
HOSPITAL DIRECTOR TO SATISFY CERTAIN CONDITIONS BEFORE HE COULD ASSIGN
UNIT PHYSICIANS TO PERFORM O.D. DUTIES MORE OFTEN THAN THEY WOULD, ON A
ROTATIONAL BASIS, IF THE UNIT WERE FULLY STAFFED. THE PROPOSAL
PROVIDES:
OFFICER OF THE DAY DUTIES WILL BE ROTATED AMONG ALL QUALIFIED
BARGAINING UNIT
PHYSICIANS. WHEN THE PHYSICIAN STAFFING FALLS BELOW AUTHORIZED
STAFFING FOR 30 DAYS OR MORE,
THE BARGAINING UNIT PHYSICIANS WILL NOT BE REQUIRED TO PERFORM
OFFICER OF THE DAY DUTIES MORE
OFTEN THAN WHEN THE CURRENT AUTHORIZED STAFFING IS UP TO FULL
COMPLEMENT UNTIL ALL OF THE
PROCEDURES AVAILABLE TO THE DIRECTOR HAVE FAILED TO LOCATE ADDITIONAL
QUALIFIED PHYSICIANS TO
PERFORM OFFICER OF THE DAY DUTIES.
THE AGENCY ARGUES THAT UTILIZATION OF "ALL OF THE PROCEDURES
AVAILABLE TO THE DIRECTOR," AS MANDATED BY THE PROPOSAL, WOULD REQUIRE
THE HOSPITAL DIRECTOR TO TAKE ACTIONS WITH RESPECT TO THE NUMBERS, TYPES
AND/OR GRADES OF EMPLOYEES ASSIGNED TO O.D. TOURS OF DUTY, AND THAT SUCH
MATTERS ARE EXCEPTED FROM THE BARGAINING OBLIGATION BY SECTION 11(B) OF
THE ORDER. /1/
THE UNION DISAGREES, CONTENDING THAT, IN EFFECT, THE PROPOSAL MERELY
PROVIDES A PROCEDURE FOR MANAGEMENT TO OBSERVE IN REACHING THE DECISION
TO ASSIGN UNIT PHYSICIANS TO O.D. DUTIES MORE OFTEN THAN WHEN THE UNIT
IS FULLY STAFFED WITH PHYSICIANS, THAT IS, A QUESTION OF PERSONNEL
POLICIES, PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS WHICH
MANAGEMENT IS OBLIGATED TO BARGAIN UNDER SECTION 11(A) OF THE ORDER.
SECTION 11(B) OF THE ORDER PROVIDES IN RELEVANT PART:
. . . THE OBLIGATION TO MEET AND CONFER (ESTABLISHED BY SECTION
11(A)) DOES NOT INCLUDE
MATTERS WITH RESPECT TO THE MISSION OF AN AGENCY; ITS BURGET; ITS
ORGANIZATION; THE NUMBER OF
EMPLOYEES; AND THE NUMBERS, TYPES, AND GRADES OF POSITIONS OR
EMPLOYEES ASSIGNED TO AN
ORGANIZATIONAL UNIT, WORK PROJECT OR TOUR OF DUTY . . .
THE INTENDED MEANING OF THE UNDERSCORED LANGUAGE IS EXPLAINED IN
SECTION E.1. OF THE REPORT AND RECOMMENDATIONS WHICH LED TO THE ISSUANCE
OF E.O. 11491, AS FOLLOWS: /2/
THE WORDS 'ASSIGNMENT OF ITS PERSONNEL' /3/ HAVE BEEN INTERPRETED BY
SOME AS EXCLUDING
FROM THE SCOPE OF NEGOTIATIONS THE POLICIES OR PROCEDURES MANAGEMENT
WILL APPLY IN TAKING SUCH
ACTIONS AS THE ASSIGNMENT OF EMPLOYEES TO PARTICULAR SHIFTS OR THE
ASSIGNMENT OF
OVERTIME. THIS CLEARLY IS NOT THE INTENT OF THE LANGUAGE. THIS
LANGUAGE SHOULD BE CONSIDERED
AS APPLYING TO AN AGENCY'S RIGHT TO ESTABLISH STAFFING PATTERNS FOR
ITS ORGANIZATION AND THE
ACCOMPLISHMENT OF ITS WORK-- THE NUMBER OF EMPLOYEES IN THE AGENCY
AND THE NUMBER, TYPE, AND
GRADES OF POSITIONS OR EMPLOYEES ASSIGNED IN THE VARIOUS SEGMENTS OF
ITS ORGANIZATION AND TO
WORK PROJECTS AND TOURS OF DUTY.
TO REMOVE ANY POSSIBLE FUTURE MISINTERPRETATION OF THE INTENT OF THE
PHRASE 'ASSIGNMENT OF
ITS PERSONNEL,' WE RECOMMEND THAT THERE BE SUBSTITUTED IN A NEW ORDER
THE PHRASE 'THE NUMBER
OF EMPLOYEES, AND THE NUMBERS, TYPES, AND GRADES OF POSITIONS, OR
EMPLOYEES ASSIGNED TO AN
ORGANIZATIONAL UNIT, WORK PROJECT OR TOUR OF DUTY' . . .
IT IS APPARENT FROM THE FOREGOING THAT, UNDER BOTH E.O. 10988 AND
E.O. 11491, THE STAFFING PATTERNS FOR THE AGENCY'S ORGANIZATION AND THE
ACCOMPLISHMENT OF ITS WORK WERE EXCEPTED FROM THE OBLIGATION TO BARGAIN.
;
TURNING TO THE FACTS IN THE PRESENT CASE, THE PROPOSAL WOULD RESTRICT
MANAGEMENT'S AUTHORITY TO DETERMINE HOW FREQUENTLY UNIT EMPLOYEES WILL
PERFORM O.D. DUTIES. THAT IS, IF, FOR WHATEVER REASON, UNIT STAFFING
SHOULD FALL BELOW THE AUTHORIZED LEVEL AS SET FORTH IN THE PROPOSAL,
MANAGEMENT WOULD BE REQUIRED TO SEARCH ALL AVAILABLE AVENUES TO LOCATE
NON-UNIT PHYSICIANS TO ASSIGN TO TOURS OF O.D. DUTY BEFORE UNIT
PHYSICIANS COULD BE ASSIGNED TO ADDITIONAL TOURS AS OFFICER OF THE DAY.
IN THIS REGARD, THE AGENCY INDICATES THAT, TO CARRY OUT THE PROPOSAL'S
MANDATE, THE HOSPITAL DIRECTOR WOULD HAVE TO: ASSIGN SUPERVISORY AND
MANAGERIAL PHYSICIANS TO TOURS OF O.D. DUTY; HIRE ADDITIONAL NUMBERS OF
FULL OR PART-TIME PHYSICIANS FOR ASSIGNMENT TO SUCH TOURS OF DUTY;
AND/OR SECURE NON-VA PHYSICIANS TO STAFF SUCH TOURS OF DUTY UNDER A
CONTRACTUAL ARRANGEMENT. CLEARLY, THESE "PROCEDURES AVAILABLE TO THE
DIRECTOR" ARE MATTERS WITH RESPECT TO THE NUMBERS AND/OR TYPES OF
POSITIONS OR EMPLOYEES ASSIGNED TO TOURS OF O.D. DUTY. HENCE, BY
REQUIRING THEIR USE, THE PROPOSAL WOULD IMPOSE LIMITING CONDITIONS ON
MANAGEMENT'S AUTHORITY TO ESTABLISH STAFFING PATTERNS FOR ITS
ORGANIZATION AND THE ACCOMPLISHMENT OF ITS WORK. AND, SINCE, AS ALREADY
INDICATED, SUCH STAFFING PATTERNS ARE EXCEPTED FROM THE AGENCY'S
OBLIGATION TO BARGAIN BY SECTION 11(B) OF THE ORDER, WE MUST FIND THAT,
UNDER THE CIRCUMSTANCES OF THIS CASE, THE PROPOSAL IS NONNEGOTIABLE.
2. THE PROFESSIONAL STANDARDS BOARDS PROPOSAL. THE UNION'S
PROPOSAL, AS SUBMITTED TO THE AGENCY HEAD FOR A DETERMINATION AS TO ITS
NEGOTIABILITY, PROVIDES AS FOLLOWS: /4/
THE EMPLOYER AGREES TO APPOINT A PHYSICIAN OF THE UNIT TO
PROFESSIONAL STANDARDS BOARD,
WHEN THE BOARD IS CONSIDERING PHYSICIANS OF THE UNIT FOR
RECOMMENDATION FOR PROMOTION.
IT IS AGREED THAT THE UNIT PHYSICIAN WILL BE SELECTED FROM A LIST
RECOMMENDED BY THE
UNION. THE RECOMMENDED PHYSICIAN MUST MEET THE CRITERIA ESTABLISHED
FOR BOARD MEMBERS. IF
THE ADMINISTRATOR DETERMINES THAT THE RECOMMENDED PHYSICIAN(S) DOES
NOT MEET THIS CRITERIA, HE
WILL THEN APPOINT ANOTHER PHYSICIAN FROM THE BARGAINING UNIT WHO HE
DEEMS QUALIFIED.
UNDER VA MANUAL, MP-5, PART II, CHAPTER 5, PROFESSIONAL STANDARDS
BOARDS PERIODICALLY CONSIDER, FOR NON-COMPETITIVE PROMOTION, VA
PHYSICIANS WHO MEET PRESCRIBED ADMINISTRATIVE REQUIREMENTS SUCH AS A
CURRENT PROFICIENCY RATING OF "SATISFACTORY" AND ADEQUATE TIME-IN-GRADE.
SUCH BOARDS, COMPRISING A CHAIRMAN, A SECRETARY AND ONE TO THREE
MEMBERS, REVIEW CANDIDATES' QUALIFICATIONS FOR PROMOTION AND MAKE
RECOMMENDATIONS BASED ON THEIR FINDINGS. WITH REGARD TO BOARD
MEMBERSHIP, THE VA DEPARTMENT OF MEDICINE AND SURGERY SUPPLEMENT TO THE
ABOVE CITED PROVISIONS OF THE VA MANUAL PROVIDES THAT NO SPECIFIC GRADE
OR SPECIALTY IS REQUIRED OF MEMBERS OF BOARDS CONSIDERING PHYSICIANS FOR
PROMOTION, EXCEPT IF A PROFESSIONAL EXAMINATION IS CONDUCTED. IN THAT
CASE, EACH MEMBER OF THE BOARD CONDUCTING SUCH EXAMINATION MUST HOLD A
GRADE AT LEAST EQUIVALENT TO THE ONE FOR WHICH THE CANDIDATE IS BEING
CONSIDERED AND AT LEAST ONE BOARD MEMBER MUST BE OF THE SAME SPECIALTY
AS THE CANDIDATE FOR PROMOTION.
IN THE CIRCUMSTANCES OF THE INSTANT CASE, THE HOSPITAL DIRECTOR IS
THE AGENCY OFFICIAL AUTHORIZED TO ASSIGN PHYSICIANS TO SERVE ON
PROFESSIONAL STANDARDS BOARDS AS WELL AS TO APPROVE OR DISAPPROVE THE
RECOMMENDATIONS OF SUCH BOARDS. HE IS AUTHORIZED TO IMPLEMENT BOARD
RECOMMENDATIONS WHICH HE HAS APPROVED BUT, IF HE DISAPPROVES A BOARD'S
RECOMMENDATION, HE MUST FORWARD THE CASE WITH HIS COMMENTS TO HIGHER
LEVEL AGENCY AUTHORITY FOR FINAL DECISION.
A. SECTION 12(B)(2) OF THE ORDER. THE AGENCY ASSERTS IN SUBSTANCE
THAT PROFESSIONAL STANDARDS BOARDS CONSTITUTE AN INTEGRAL PART OF THE
AGENCY'S PROMOTION PROCESS FOR PHYSICIANS; AND THAT THE PROPOSAL FOR
UNION MEMBERSHIP ON SUCH BOARDS IS NONNEGOTIABLE BECAUSE IT WOULD
INTERFERE WITH THE RIGHT "TO PROMOTE" EMPLOYEES RESERVED TO MANAGEMENT
OFFICIALS UNDER SECTION 12(B)(2) OF THE ORDER.
THE UNION ARGUES THAT ITS PROPOSAL DOES NOT INTERFERE WITH MANAGEMENT
RIGHTS BUT, RATHER, WOULD ESTABLISH A PROCEDURE, NEGOTIABLE UNDER
SECTION 11(A) OF THE ORDER, WHICH THE AGENCY WOULD OBSERVE IN
RECOMMENDING PHYSICIANS FOR MEMBERSHIP ON BOARDS.
SECTION 12(B) OF THE ORDER PROVIDES IN RELEVANT PART AS FOLLOWS:
SEC. 12. BASIC PROVISIONS OF AGREEMENTS. EACH AGREEMENT BETWEEN AN
AGENCY AND A LABOR
ORGANIZATION IS SUBJECT TO THE FOLLOWING REQUIREMENTS--
(B) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN
ACCORDANCE WITH APPLICABLE LAWS
AND REGULATIONS--
(2) TO HIRE, PROMOTE, TRANSFER, ASSIGN, AND RETAIN EMPLOYEES IN
POSITIONS WITHIN THE AGENCY
. . .
IN CONNECTION WITH APPLYING THIS PROVISION OF THE ORDER IN ITS VA
RESEARCH HOSPITAL DECISION, THE COUNCIL STATED: /5/
THE EMPHASIS IS ON THE RESERVATION OF MANAGEMENT AUTHORITY TO DECIDE
AND ACT ON THESE
MATTERS, AND THE CLEAR IMPORT IS THAT NO RIGHT ACCORDED TO UNIONS
UNDER THE ORDER MAY BE
PERMITTED TO INTERFERE WITH THAT AUTHORITY. HOWEVER, THERE IS NO
IMPLICATION THAT SUCH
RESERVATION OF DECISION MAKING AND ACTION AUTHORITY IS INTENDED TO
BAR NEGOTIATIONS OF
PROCEDURES, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, WHICH
MANAGEMENT WILL OBSERVE IN
REACHING THE DECISION OR TAKING THE ACTION INVOLVED, PROVIDED THAT
SUCH PROCEDURES DO NOT HAVE
THE EFFECT OF NEGATING THE AUTHORITY RESERVED.
IN THE VA RESEARCH HOSPITAL CASE, THE PROPOSAL WOULD HAVE ENABLED THE
UNION TO OBTAIN HIGHER-LEVEL MANAGEMENT REVIEW OF A PROMOTION SELECTION
BEFORE SUCH ACTION COULD BECOME FINAL. IN THOSE CIRCUMSTANCES, THE
COUNCIL, IN FINDING THE PROPOSAL NEGOTIABLE, HELD THAT IT DID " . . .
NOT REQUIRE MANAGEMENT TO NEGOTIATE A PROMOTION SELECTION OR TO SECURE
UNION CONSENT TO THE DECISION . . . " BUT THAT IT WOULD ESTABLISH
PROCEDURES TO OBTAIN HIGHER-LEVEL MANAGEMENT REVIEW BEFORE FINAL
PROMOTION ACTION WAS TAKEN. /6/
THE COUNCIL RECENTLY APPLIED THE SAME PRINCIPLES TO THE CIRCUMSTANCES
PRESENTED BY VA HOSPITAL, LEBANON, PENNSYLVANIA /7/ WHICH DEALT IN PART
WITH THE RIGHT "TO HIRE" RESERVED TO MANAGEMENT BY SECTION 12(B)(2).
THERE, THE COUNCIL REACHED A DIFFERENT CONCLUSION, HOLDING THAT THE
HOSPITAL DIRECTOR'S ACTIONS IN REQUESTING THE EMPLOYMENT OF ADDITIONAL
PHYSICIANS CONSTITUTED AN INTEGRAL PART OF THE AGENCY'S HIRING PROCESS
AND THAT THE UNION'S PROPOSAL WHICH WOULD HAVE REQUIRED SUCH ACTIONS TO
BE TAKEN BY THE HOSPITAL DIRECTOR WOULD INTERFERE WITH MANAGEMENT'S
RESERVED RIGHT.
THE CIRCUMSTANCES OF THE PRESENT CASE MUST CAREFULLY BE DISTINGUISHED
FROM THOSE UPON WHICH THE COUNCIL BASED ITS VA-LEBANON DECISION. THAT
IS, WHEREAS IN VA-LEBANON THE PROPOSAL WOULD HAVE PREEMPTED THE HOSPITAL
DIRECTOR'S DISCRETION AS TO WHETHER OR NOT TO REQUEST THE EMPLOYMENT OF
ADDITIONAL PHYSICIANS, THE PROPOSAL IN THE INSTANT CASE MERELY WOULD
PROVIDE FOR THE SELECTION, BY MANAGEMENT, OF A REPRESENTATIVE NOMINATED
BY THE UNION TO SERVE ON PROFESSIONAL STANDARDS BOARDS CONSIDERING UNIT
MEMBERS FOR RECOMMENDATION FOR PROMOTION. AND, AS PREVIOUSLY INDICATED,
BEFORE THE RECOMMENDATIONS OF SUCH BOARDS CAN BECOME FINAL, THEY ARE
SUBJECT TO THE HOSPITAL DIRECTOR'S APPROVAL OR, IF HE DISAPPROVES, TO
FURTHER CONSIDERATION AND FINAL DECISION AT A HIGHER LEVEL OF THE
AGENCY.
UNDER THESE CIRCUMSTANCES, IT IS CLEAR THAT THE PROPOSAL NEITHER
WOULD LIMIT THE DISCRETION OF PROFESSIONAL STANDARDS BOARDS CONSIDERING
WHETHER TO RECOMMEND THE PROMOTION OF ANY PARTICULAR CANDIDATE, NOR
WOULD IT REQUIRE MANAGEMENT TO NEGOTIATE A PROMOTION SELECTION OR SECURE
UNION CONSENT TO THE DECISION. TO THE CONTRARY, THE PROPOSAL PLAINLY
CONCERNS ONLY PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN REACHING THE
DECISION, WHICH WOULD ASSURE THE UNIONS AN ESSENTIALLY NON-CONTROLLING,
PARTICIPATORY ROLE ON BOARDS MAKING RECOMMENDATIONS WITH RESPECT TO THE
PROMOTION OF UNIT EMPLOYEES.
IN CONCLUSION, THERE IS NO SHOWING THAT THE PROPOSAL WOULD DIRECTLY
INTERFERE WITH THE ULTIMATE DECISION AND ACTION AUTHORITY RESERVED TO
MANAGEMENT. FURTHERMORE, IT DOES NOT APPEAR THAT THE PROPOSAL WOULD
HAVE THE INDIRECT EFFECT OF INTERFERING WITH SUCH RESERVED AUTHORITY BY
CAUSING UNREASONABLE DELAY IN THE DECISION.
ACCORDINGLY, WE FIND THAT SECTION 12(B)(2) OF THE ORDER DOES NOT BAR
NEGOTIATIONS ON THE UNION'S PROPOSAL.
B. AGENCY REGULATIONS AS A BAR TO NEGOTIATION. THE AGENCY HEAD
DETERMINED THAT THE PROPOSAL IS NONNEGOTIABLE BECAUSE IT CONFLICTS WITH
PUBLISHED AGENCY REGULATIONS (VA MANUAL, DM&S SUPPLEMENT, MP-5, PART II,
PARAGRAPH 2.05C) WHICH PROVIDE:
PERSONS SELECTED TO SERVE ON PROFESSIONAL STANDARDS BOARDS WILL BE
CHOSEN FROM THE MOST
CAPABLE, EXPERIENCED AND RESPONSIBLE PERSONNEL.
IN EXPLANATION OF THIS DETERMINATION THE AGENCY ASSERTS IN ITS
STATEMENT OF POSITION:
A UNIT PHYSICIAN CANNOT BE INCLUDED ON A PROFESSIONAL STANDARDS BOARD
UNLESS HE MEETS
. . . (THE CRITERIA ESTABLISHED BY THE REGULATIONS.) THEREFORE, TO
COMPLY WITH THE UNION
PROPOSAL MIGHT REQUIRE THE HOSPITAL DIRECTOR TO VIOLATE THAT
PUBLISHED AGENCY POLICY AS THE
APPOINTMENT OF A PHYSICIAN FROM THE UNIT IS MANDATED BY THE PROPOSAL
WHETHER OR NOT THE
DIRECTOR FINDS THE UNION NOMINEE ACCEPTABLE.
AS PROVIDED IN SECTION 11(C)(3) OF THE ORDER, "AN AGENCY HEAD'S
DETERMINATION AS TO THE INTERPRETATION OF THE AGENCY'S REGULATIONS WITH
RESPECT TO A PROPOSAL IS FINAL" AND, THEREFORE, THE COUNCIL MAY NOT
SUBSTITUTE ITS INTERPRETATION OF SUCH REGULATIONS IN PLACE OF THE AGENCY
HEAD'S. HOWEVER, THE UNION IN EFFECT ARGUES, AMONG OTHER THINGS, THAT
THE AGENCY MISINTERPRETED THE PROPOSAL AND, HENCE, THAT THE AGENCY
REGULATION, AS INTERPRETED BY THE AGENCY HEAD IS NOT A BAR TO
NEGOTIATIONS UNDER SECTION 11(A) OF THE ORDER. /8/ WE FIND THE UNION'S
ARGUMENT PERSUASIVE IN THE CIRCUMSTANCES OF THIS CASE.
THE AGENCY'S HEAD DETERMINATION AND THE EXPLANATION THEREOF AS QUOTED
ABOVE FROM THE AGENCY'S STATEMENT OF POSITION, CHARACTERIZE THE UNION'S
PROPOSAL AS REQUIRING THE APPOINTMENT OF A UNIT PHYSICIAN TO SERVE ON
PROFESSIONAL STANDARDS BOARDS EVEN THOUGH THE AGENCY MIGHT FIND THAT NO
UNIT PHYSICIAN MEETS THE CRITERIA FOR BOARD MEMBERSHIP ESTABLISHED BY
AGENCY REGULATIONS. IN OUR OPINION SUCH A CHARACTERIZATION OF THE
PROPOSAL IS ERRONEOUS.
THE PROPOSAL REQUIRES, AS THE UNION POINTS OUT, THAT UNIT PHYSICIANS
RECOMMENDED BY THE UNION MUST MEET THE CRITERIA ESTABLISHED FOR BOARD
MEMBERS. FURTHER, CONTRARY TO THE AGENCY'S POSITION, THE UNION STATES,
IN THE RECORD, ITS INTENT THAT THE PROPOSAL IF AGREED UPON:
. . . MERELY WOULD CONSTITUTE PRIOR AGREEMENT UPON THE
ADMINISTRATOR'S RECOMMENDATION OF
ONE OF THE THREE (3) TO FIVE (5) BOARD MEMBERS FROM A LIST SUBMITTED
BY THE UNION, PROVIDED
THEY MEET THE CRITERIA ESTABLISHED FOR BOARD MEMBERS.
BASED ON THE FOREGOING, IT IS OUR OPINION THAT, WHILE THE INITIAL
PARAGRAPH OF THE PROPOSAL TAKEN ALONE WOULD SUPPORT THE AGENCY'S
CHARACTERIZATION OF THE PROPOSAL, THE LANGUAGE OF THE PROPOSAL AS A
WHOLE EXPRESSLY LIMITS THE REQUIREMENT TO APPOINT A PHYSICIAN FROM THE
UNIT TO SUCH PHYSICIANS AS THE AGENCY OFFICIAL MAKING SUCH APPOINTMENT
"DEEMS QUALIFIED" UNDER AGENCY REGULATIONS.
HENCE, IN OUR VIEW, NEITHER THE LANGUAGE OF THE PROPOSAL AS A WHOLE
NOR THE EXPRESSED INTENT OF THE UNION AS TO THE MEANING OF SUCH LANGUAGE
SUPPORTS THE AGENCY'S CHARACTERIZATION OF THE PROPOSAL AS REQUIRING THE
APPOINTMENT OF A NON-QUALIFYING PHYSICIAN FROM THE UNIT. THEREFORE, THE
AGENCY HAS FAILED TO ESTABLISH THAT ITS REGULATION IS APPLICABLE SO AS
TO PRECLUDE NEGOTIATION OF THE PROPOSAL UNDER SECTION 11(A) OF THE
ORDER. /9/
ACCORDINGLY, WE FIND THAT, CONTRARY TO THE AGENCY HEAD'S
DETERMINATION, THE PROPOSAL IS NEGOTIABLE.
FOR THE REASONS DISCUSSED ABOVE AND PURSUANT TO SECTION 2411.27 OF
THE COUNCIL'S RULES AND REGULATIONS, WE FIND THAT:
1. THE AGENCY HEAD'S DETERMINATION AS TO THE NONNEGOTIABILITY OF THE
O.D. DUTY PROPOSAL WAS VALID AND MUST BE SUSTAINED; AND,
2. THE AGENCY HEAD'S DETERMINATION AS TO THE NONNEGOTIABILITY OF THE
PROFESSIONAL STANDARDS BOARDS PROPOSAL WAS IMPROPER AND MUST BE SET
ASIDE. THIS DECISION SHALL NOT BE CONSTRUED AS EXPRESSING OR IMPLYING
ANY OPINION OF THE COUNCIL AS TO THE MERITS OF THE UNION'S PROPOSAL. WE
DECIDE ONLY THAT, AS SUBMITTED BY THE UNION AND BASED ON THE RECORD
BEFORE US, THE PROPOSAL IS PROPERLY SUBJECT TO NEGOTIATION BY THE
PARTIES CONCERNED UNDER SECTION 11(A) OF THE EXECUTIVE ORDER 11491.
BY THE COUNCIL.
ISSUED: JAN 31 1974
/1/ THE AGENCY ADDITIONALLY CONTENDED, FOR THE FIRST TIME IN ITS
STATEMENT OF POSITION, THAT THE PROPOSAL CONFLICTS WITH AGENCY
REGULATIONS. HOWEVER, THE AGENCY HEAD DID NOT INTERPRET OR RELY UPON
AGENCY REGULATIONS IN DETERMINING THIS PROPOSAL TO BE NONNEGOTIABLE AND
IN VIEW OF OUR DECISION HEREIN WE DO NOT FIND IT NECESSARY TO PASS ON
THIS CONTENTION.
/2/ LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1971), AT PP.
42-43.
/3/ SECTION 6(B) OF E.O. 10988, WHICH PRECEDED E.O. 11491, PROVIDED
THAT THE BARGAINING OBLIGATION "SHALL NOT BE CONSTRUED TO EXTEND TO SUCH
AREAS OF DISCRETION AS THE . . . (AGENCY'S) ORGANIZATION AND THE
ASSIGNMENT OF ITS PERSONNEL."
/4/ THE AGENCY CONTENDS THAT THE APPEAL WITH RESPECT TO THIS PROPOSAL
IS FATALLY DEFECTIVE BECAUSE THE UNION'S PETITION FAILS TO SET FORTH THE
INITIAL AND "INTEGRAL" PARAGRAPH OF THE PROPOSAL AS IT WAS SUBMITTED TO
THE AGENCY HEAD, IN APPARENT VIOLATION OF SECTION 2411.24 OF THE
COUNCIL'S RULES OF PROCEDURE WHICH PROVIDES IN PERTINENT PART THAT:
A PETITION FOR REVIEW SHALL CONTAIN THE FOLLOWING: (A) A STATEMENT
SETTING FORTH THE
MATTER PROPOSED TO BE NEGOTIATED AS SUBMITTED TO THE AGENCY HEAD FOR
DETERMINATION.
HOWEVER, THE AGENCY DOES NOT SHOW PREJUDICE TO HAVE RESULTED BY
VIRTUE OF THE OMISSION AND, UNDER THE CIRCUMSTANCES, WE DO NOT FIND SUCH
DEFECT TO BE DETERMINATIVE.
/5/ VETERANS ADMINISTRATION INDEPENDENT SERVICE EMPLOYEES UNION AND
VETERANS ADMINISTRATION RESEARCH HOSPITAL, CHICAGO, ILL., FLRC NO.
71A-31 (NOVEMBER 22, 1972), REPORT NO. 31, AT P. 3. SEE ALSO LODGE
2424, IAM-AW AND KIRK ARMY HOSPITAL AND ABERDEEN RESEARCH AND
DEVELOPMENT CENTER, ABERDEEN, MD., FLRC NO. 72A-18 (SEPTEMBER 17, 1973),
REPORT NO. 44, AT PP. 9-11.
/6/ IBID.
/7/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1966 AND
VETERANS ADMINISTRATION HOSPITAL, LEBANON, PENNSYLVANIA, FLRC NO. 72A-41
(DECEMBER 14, 1973), REPORT NO. 46, AT PP. 5-7.
/8/ SECTION 11(A) PROVIDES IN PERTINENT PART: "AN AGENCY AND A LABOR
ORGANIZATION THAT HAS BEEN ACCORDED EXCLUSIVE RECOGNITION, THROUGH
APPROPRIATE REPRESENTATIVES, SHALL MEET AT REASONABLE TIMES AND CONFER
IN GOOD FAITH WITH RESPECT TO PERSONNEL POLICIES AND PRACTICES AND
MATTERS AFFECTING WORKING CONDITIONS, SO FAR AS MAY BE APPROPRIATE UNDER
APPLICABLE LAWS AND REGULATIONS, INCLUDING POLICIES SET FORTH IN THE
FEDERAL PERSONNEL MANUAL, PUBLISHED AGENCY POLICIES AND REGULATIONS, A
NATIONAL OR OTHER CONTROLLING AGREEMENT AT A HIGHER LEVEL IN THE AGENCY,
AND THIS ORDER . . . "
/9/ CF. VETERANS ADMINISTRATION INDEPENDENT SERVICE EMPLOYEES UNION
AND VETERANS ADMINISTRATION RESEARCH HOSPITAL, CHICAGO, ILL., FLRC NO.
71A-31 (NOVEMBER 22, 1972), REPORT NO. 31, AT PP. 5-6.
2 FLRC 55; FLRC NO. 73A-21; JANUARY 31, 1974.
LOCAL LODGE 830, INTERNATIONAL
ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS
AND
LOUISVILLE NAVAL ORDNANCE STATION,
DEPARTMENT OF THE NAVY
(SYNOPSIS) FLRC NO. 73A-21
LOCAL LODGE 830, INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, AND LOUISVILLE NAVAL ORDNANCE STATION, DEPARTMENT OF
THE NAVY. THE DISPUTE IN THIS CASE CONCERNED THE NEGOTIABILITY UNDER
THE ORDER OF UNION PROPOSALS WHICH WOULD: (1) DEFINE AND CLARIFY
CERTAIN GENERAL TERMS USED IN JOB DESCRIPTIONS; (2) PROVIDE THAT, IN
CASES SUBMITTED TO AN ARBITRATOR UNDER THE NEGOTIATED GRIEVANCE
PROCEDURE, THE SPECIFIC TERMS OF THE AGREEMENT MUST STAND ALONE; AND
(3) PROVIDE THAT ALL ASPECTS OF THE AGREEMENT SHALL BE SUBJECT TO
GRIEVANCE AND ARBITRATION UNDER THE NEGOTIATED GRIEVANCE PROCEDURE.
COUNCIL ACTION (JANUARY 31, 1974). AS TO (1), THE COUNCIL,
DISTINGUISHING THE GRIFFISS AIR FORCE BASE CASE, FLRC NO. 71A-30 (WHICH
DECISION THE COUNCIL EXPRESSLY REAFFIRMED), RULED, CONTRARY TO THE
POSITION OF THE AGENCY, THAT THE UNION'S PROPOSAL WOULD NOT CONSTRICT
THE AGENCY'S RIGHT TO ASSIGN DUTIES AND TO EFFECT CHANGES IN JOB
DESCRIPTIONS TO REFLECT SUCH ASSIGNMENTS, AND CONSEQUENTLY WAS NOT
OUTSIDE THE AGENCY'S OBLIGATION TO BARGAIN UNDER THE ORDER. WITH
RESPECT TO (2), THE COUNCIL UPHELD THE AGENCY DETERMINATION OF
NONNEGOTIABILITY SINCE THE UNION'S PROPOSAL WOULD PROHIBIT THE
ARBITRATOR FROM SEEKING ACCESS TO SOURCES NECESSARY TO IMPLEMENT SECTION
12(A) OF THE ORDER AND WAS THEREBY VIOLATIVE OF THE ORDER. AND AS TO
(3), THE COUNCIL, BASED, AMONG OTHER THINGS, ON ITS DECISION IN THE
ELMENDORF CASE, FLRC NO. 72A-10, AND RELEVANT PROVISIONS IN SECTIONS
12(A) AND (13) OF THE ORDER, OVERRULED THE AGENCY'S CONTENTION THAT THE
PROPOSAL WAS NONNEGOTIABLE. ACCORDINGLY, THE AGENCY HEAD'S
DETERMINATIONS WERE SUSTAINED IN PART AND SET ASIDE IN PART.
THE UNION (LOCAL LODGE 830, IAM-AW) IS THE EXCLUSIVE BARGAINING
REPRESENTATIVE OF ALL NONSUPERVISORY EMPLOYEES AT THE ACTIVITY
(LOUISVILLE NAVAL ORDNANCE STATION).
DURING NEGOTIATIONS BETWEEN THE UNION AND THE ACTIVITY, THE UNION
SUBMITTED PROPOSALS PERTAINING TO POSITION DESCRIPTIONS (ARTICLE 18,
SECTION 6); THE PRESENTATION OF CASES BEFORE AN ARBITRATOR (ARTICLE 21,
SECTION 4); AND THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE
(ARTICLE 21, SECTIONS 2(B) AND 5(A)(2)). MORE SPECIFICALLY, THESE
RESPECTIVE PROPOSALS ARE AS FOLLOWS:
ARTICLE 18, SECTION 6
A. WHEN THE TERM 'SUCH OTHER DUTIES AS MAY BE ASSIGNED' OR ITS
EQUIVALENT IS USED IN A
POSITION DESCRIPTION, THE TERM IS MUTUALLY UNDERSTOOD TO MEAN 'TASKS
THAT ARE NORMALLY RELATED
TO THE POSITION AND ARE OF AN INCIDENTAL NATURE.'
B. IT IS UNDERSTOOD THAT THE LANGUAGE OF (A) ABOVE DOES NOT PRECLUDE
THE EMPLOYER FROM
ASSIGNING UNRELATED WORK TO EMPLOYEES WHEN:
(1) A GENERAL PLANT CLEANUP IS REQUIRED;
(2) WORK AS DEFINED IN AN EMPLOYEE'S POSITION DESCRIPTION IS NOT
AVAILABLE.
ARTICLE 21, SECTION 4
(NEITHER PARTY SHALL MAKE USE OF, REFER TO, ARGUE FROM, OR PRESENT
BEFORE AN ARBITRATOR ANY
INTERPRETATION OF ANY REGULATION, POLICY RULE OR LAW TO ESTABLISH THE
MEANING OF THIS
AGREEMENT.) THE SPECIFIC TERMS OF THIS AGREEMENT MUST STAND ALONE.
(THE PARTIES TO THIS
AGREEMENT RESERVE THE EXCLUSIVE RIGHT TO MAKE CHANGES THERETO.)
ARTICLE 21, SECTION 2(B)
THE NEGOTIATED PROCEDURE COVERS ALL ASPECTS OF THIS AGREEMENT, AND
ALL TERMS AND CONDITIONS
SET FORTH EXPLICITLY IN THIS AGREEMENT SHALL UNRESERVEDLY BE SUBJECT
TO BEING GRIEVED AND
ARBITRATED UNDER THIS PROCEDURE AND THE PROVISIONS OF ARTICLE 22
(ARBITRATION).
ARTICLE 21, SECTION 5(A)(2)
IF THE GRIEVANCE CONCERNS ANY ASPECTS OF THIS AGREEMENT; THE
AGGRIEVED MUST USE THIS
PROCEDURE . . .
THE ACTIVITY CONTENDED THAT THE PROPOSALS WERE NONNEGOTIABLE. UPON
REFERRAL THE DEPARTMENT OF DEFENSE DETERMINED THAT THE PROPOSALS (WITH
THE EXCEPTION OF THE BRACKETED SENTENCES IN ARTICLE 21, SECTION 4) WERE
NONNEGOTIABLE.
THE UNION THEN APPEALED THIS DETERMINATION TO THE COUNCIL UNDER
SECTION 11(C)(4) OF THE ORDER, AND THE AGENCY FILED A STATEMENT OF
POSITION IN SUPPORT OF ITS DETERMINATION.
OPINION
THE UNION PROPOSALS IN DISPUTE WILL BE SEPARATELY CONSIDERED BELOW.
1. POSITION DESCRIPTIONS (ARTICLE 18, SECTION 6).
AS PREVIOUSLY SET FORTH, THE UNION PROPOSED IN ARTICLE 18, SECTION 6,
THAT WHENEVER THE PHRASE "SUCH OTHER DUTIES AS MAY BE ASSIGNED" OR THE
LIKE APPEARS IN A POSITION DESCRIPTION, IT SHALL BE DEFINED TO MEAN
"TASKS THAT ARE NORMALLY RELATED TO THE POSITION AND ARE OF AN
INCIDENTAL NATURE"; AND THAT SUCH LANGUAGE IN THE POSITION DESCRIPTION
DOES NOT PREVENT THE ASSIGNMENT OF UNRELATED DUTIES TO EMPLOYEES UNDER
CIRCUMSTANCES REFERRED TO IN THE PROPOSAL.
THE AGENCY ASSERTS THAT THIS PROPOSAL WOULD RESTRICT MANAGEMENT IN
THE ASSIGNMENT OF DUTIES TO EMPLOYEES; AND THAT, BASED PRINCIPALLY ON
THE COUNCIL'S DECISION IN THE GRIFFISS CASE, /1/ THE PROPOSAL IS
NONNEGOTIABLE.
IN THE GRIFFISS CASE, RELIED UPON BY THE AGENCY, THE UNION SUBMITTED
PROPOSALS EXPRESSLY PROHIBITING THE ASSIGNMENT OF CERTAIN CIVIL
DISTURBANCE FUNCTIONS AND OTHER ALLEGEDLY UNRELATED DUTIES, SUCH AS
BARRIER DETAIL WORK, TO FIREFIGHTERS IN THE BARGAINING UNIT. /2/ THAT
IS, THE UNION'S PROPOSAL WOULD HAVE PROSCRIBED THE ASSIGNMENT BY
MANAGEMENT OF PARTICULAR DUTIES TO AN INDIVIDUAL POSITION. THE COUNCIL
UPHELD THE AGENCY'S DETERMINATION OF NONNEGOTIABILITY, ON THE GROUNDS
THAT THE SPECIFIC DUTIES ASSIGNED TO PARTICULAR JOBS, INCLUDING DUTIES
ALLEGEDLY UNRELATED TO THE PRINCIPAL FUNCTIONS OF THE EMPLOYEES
CONCERNED, ARE EXCEPTED FROM AN AGENCY'S OBLIGATION TO BARGAIN UNDER
SECTION 11(B) OF THE ORDER. WE REAFFIRM THAT DECISION.
HOWEVER, WE CANNOT AGREE WITH THE AGENCY THAT THE GRIFFISS DECISION
IS DISPOSITIVE OF THE INSTANT CASE. SUCH CONTENTION BY THE AGENCY IS
FOUNDED, IN OUR OPINION, ON A MISINTERPRETATION OF THE LANGUAGE AND
INTENT OF THE SUBJECT PROPOSAL OF THE UNION.
HERE, UNLIKE IN GRIFFISS, THE UNION'S PROPOSAL IS EXPRESSLY DIRECTED,
NOT AT PROSCRIBING THE ASSIGNMENT OF PARTICULAR DUTIES TO AN INDIVIDUAL
POSITION, BUT AT THE DEFINITION AND CLARIFICATION OF THE TERMS OF THE
AGENCY'S POSITION DESCRIPTIONS. THOSE DESCRIPTIONS DO NOT DETERMINE THE
ASSIGNMENT OF DUTIES, BUT REFLECT SUCH ASSIGNMENTS FOR PAY AND
CLASSIFICATION PURPOSES. /3/ AS THE UNION EXPLAINED IN ITS APPEAL, IT
WAS PRINCIPALLY TO THIS REFLECTION THAT ITS PROPOSAL WAS ADDRESSED:
THE PURPOSE OF A POSITION DESCRIPTION IS TO MAKE A LISTING OF
PREDOMINANT SKILLS AND DUTIES
SPECIFIC AND PECULIAR TO THE JOB TO WHICH AN EMPLOYEE IS ASSIGNED.
FROM THIS CLUSTER OF
SKILLS AND DUTIES, THE CLASSIFIER DETERMINES THE PAY LEVEL FOR THE
POSITION. IF THE LIST OF
SKILLS AND DUTIES CAN BE MODIFIED BY USING THE TERM 'OTHER DUTIES AS
ASSIGNED' TO MEAN EVERY
SKILL AND DUTY IN THE ENTIRE SPECTRUM, NO MATTER HOW GROSSLY
INAPPROPRIATE OR REPUGNANT THESE
MAY BE TO THE DUTIES IN THE POSITION DESCRIPTION, THEN AGAIN, THERE
IS NO NEED FOR A
CLASSIFICATION SYSTEM AT ALL. TO INTERPRET THE PHRASE 'OTHER DUTIES
AS ASSIGNED' TO MEAN ANY
OTHER DUTY WITHOUT REGARD TO ITS COMPATIBILITY TO THE CLASSIFICATION
AND GRADE AND DUTIES AND
RESPONSIBILITIES ENCUMBERED IN THE POSITION, THEN THE PURPOSE OF
MAKING OR CONSTRUCTING THE
LISTING OF POSITION DESCRIPTIONS IS PATENTLY DEFEATED.
STATED OTHERWISE, THE UNION'S PROPOSAL IN THE PRESENT CASE IS AIMED
AT THE PRECISION AND COMPLETENESS OF THE DESCRIPTION OF THE EMPLOYEE'S
POSITION, NOT, AS IN GRIFFISS, AT THE CONTENT OF THE JOB ITSELF.
GENERAL PHRASES SUCH AS "SUCH OTHER DUTIES AS MAY BE ASSIGNED" ARE OFTEN
INCLUDED IN POSITION DESCRIPTIONS, AND THE UNION'S PROPOSAL WOULD MERELY
DEFINE SUCH GENERAL PHRASE TO MEAN WORK NORMALLY RELATED TO THE POSITION
AND OF AN INCIDENTAL NATURE-- WITH THE ADDED QUALIFICATION THAT THIS
GENERAL PHRASE, EVEN AS SO DEFINED, MAY INCLUDE UNRELATED WORK WHEN A
GENERAL PLANT CLEANUP IS REQUIRED OR WHEN WORK SPECIFIED IN THE
DESCRIPTION IS UNAVAILABLE.
THE UNION'S PROPOSAL THUS WOULD NOT RESTRICT THE AGENCY'S RIGHT TO
PRESCRIBE SPECIFICALLY IN THE JOB DESCRIPTION ANY DUTIES WHICH IT WISHES
TO ASSIGN TO AN EMPLOYEE OR POSITION AND TO CHANGE THE JOB DESCRIPTION
WITHOUT LIMITATION TO REFLECT SUCH CHANGES IN ASSIGNMENT. MOREOVER, THE
AGREEMENT WOULD OF COURSE BE SUBJECT TO SECTION 12(B) OF THE ORDER, THE
PROVISIONS OF WHICH MUST BE INCLUDED IN EVERY AGREEMENT /4/ UNDER
SECTION 12(B), FOR EXAMPLE, THE AGENCY RETAINS THE COMPLETE RIGHT, IN
ACCORDANCE WITH APPLICABLE LAWS AND REGULATIONS, TO ASSIGN DUTIES TO
EMPLOYEES OR POSITIONS IN SUCH MANNER AS TO MAINTAIN THE EFFICIENCY OF
GOVERNMENT OPERATIONS, AND TO CARRY OUT THE MISSION OF THE AGENCY IN
EMERGENCY SITUATIONS.
IN SUMMARY, NOTHING IN THE ORDER RENDERS THE MERE DEFINITION AND
CLARIFICATION OF GENERAL TERMS IN JOB DESCRIPTIONS, AS PROPOSED BY THE
UNION, OUTSIDE THE AGENCY'S OBLIGATION TO NEGOTIATE UNDER SECTION 11(B)
OF THE ORDER. THEREFORE, THE AGENCY'S DETERMINATION OF NONNEGOTIABILITY
MUST BE REJECTED. /5/
2. PRESENTATION OF CASES BEFORE AN ARBITRATOR (ARTICLE 21, SECTION
4).
THE CONTESTED PORTION OF THE UNION'S PROPOSED ARTICLE 21, SECTION 4,
PROVIDES IN CONTEXT THAT, IN CASES SUBMITTED TO AN ARBITRATOR UNDER THE
NEGOTIATED GRIEVANCE PROCEDURE, THE SPECIFIC TERMS OF THE AGREEMENT MUST
STAND ALONE.
THE AGENCY DETERMINED THAT THE PROPOSAL IS NONNEGOTIABLE BECAUSE
UNDER SECTION 12(A) OF THE ORDER THE ARBITRATOR MUST RESORT TO MATERIALS
OUTSIDE THE AGREEMENT TO DETERMINE THE MEANING AND INTENT OF THE LAWS
AND REGULATIONS REFERRED TO THEREIN, AND THIS PROPOSAL, BY DENYING THE
ARBITRATOR SUCH ACCESS, VIOLATES THE ORDER. HOWEVER, THE UNION ARGUES
THAT, UNDER SECTION 13(A) OF THE ORDER, THE NEGOTIATED ARBITRATION AND
GRIEVANCE PROCEDURE IS THE EXCLUSIVE PROCEDURE FOR RESOLVING GRIEVANCES
OVER THE INTERPRETATION OR APPLICATION OF THE AGREEMENT; AND THEREFORE
THAT "ONLY THE AGREEMENT ITSELF MAY BE USED TO ESTABLISH ITS OWN
MEANING." WE FIND NO MERIT IN THE UNION'S POSITION.
SECTION 12(A) OF THE ORDER, AS PREVIOUSLY SET FORTH, PROVIDES THAT:
SEC. 12. BASIC PROVISIONS OF AGREEMENTS. EACH AGREEMENT BETWEEN AN
AGENCY AND A LABOR
ORGANIZATION IS SUBJECT TO THE FOLLOWING REQUIREMENTS-
(A) IN THE ADMINISTRATION OF ALL MATTERS COVERED BY THE AGREEMENT,
OFFICIALS AND EMPLOYEES
ARE GOVERNED BY EXISTING OR FUTURE LAWS AND THE REGULATIONS OF
APPROPRIATE AUTHORITIES,
INCLUDING POLICIES SET FORTH IN THE FEDERAL PERSONNEL MANUAL; BY
PUBLISHED AGENCY POLICIES AND
REGULATIONS IN EXISTENCE AT THE TIME THE AGREEMENT WAS APPROVED; AND
BY SUBSEQUENTLY PUBLISHED
AGENCY POLICIES AND REGULATIONS REQUIRED BY LAW OR BY THE REGULATIONS
OF APPROPRIATE
AUTHORITIES, OR AUTHORIZED BY THE TERMS OF A CONTROLLING AGREEMENT AT
A HIGHER AGENCY LEVEL;
THE REQUIREMENTS OF THIS SECTION SHALL BE EXPRESSLY STATED IN THE
INITIAL OR BASIC
AGREEMENT AND APPLY TO ALL SUPPLEMENTAL, IMPLEMENTING, SUBSIDIARY, OR
INFORMAL AGREEMENTS
BETWEEN THE AGENCY AND THE ORGANIZATION.
THE PROVISIONS IN SECTION 12(A) MUST, AS STATED THEREIN, BE PART OF
EVERY AGREEMENT AND AN ARBITRATOR, UNDER THAT SECTION, MUST CONSIDER THE
REFERENCED LAWS AND REGULATIONS IN RESOLVING THE GRIEVANCES ARISING
UNDER THE AGREEMENT. SUCH LAWS AND REGULATIONS OBVIOUSLY CANNOT BE
INTERPRETED IN A VACUUM. THEY DRAW THEIR INTENT AND MEANING FROM
RELEVANT HISTORY, REPORTS, DECISIONS, INTERPRETATIONS, POLICY RULES AND
THE LIKE, WHICH MUST BE DERIVED FROM SOURCES OUTSIDE THE FOUR CORNERS OF
THE AGREEMENT ITSELF. SINCE THE UNION'S PROPOSAL WOULD PROHIBIT THE
ARBITRATOR FROM SEEKING ACCESS TO SOURCES NECESSARY TO IMPLEMENT SECTION
12(A), THE PROPOSAL IN THE CONTEXT OF ARTICLE 21, SECTION 4, IS CLEARLY
VIOLATIVE OF THE ORDER. THE AGENCY'S DETERMINATION OF NONNEGOTIABILITY
OF THIS PROPOSAL MUST THEREFORE BE UPHELD.
3. SCOPE OF NEGOTIATED GRIEVANCE PROCEDURE (ARTICLE 21, SECTIONS
2(B) AND 5(A)(2)).
THE LAST TWO UNION PROPOSALS IN DISPUTE PROVIDE THAT ALL ASPECTS OF
THE AGREEMENT SHALL BE SUBJECT TO GRIEVANCE AND ARBITRATION UNDER THE
NEGOTIATED GRIEVANCE PROCEDURE.
THE AGENCY ASSERTS, CONTRARY TO THE UNION, THAT THE PROPOSALS ARE
NONNEGOTIABLE BECAUSE: (1) THEY WOULD EXTEND GRIEVANCES AND ARBITRATION
TO OTHER THAN "BILATERALLY DETERMINED" MATTERS WHICH ARE ALONE INTENDED
TO BE SUBJECT TO THE NEGOTIATED GRIEVANCE PROCEDURE UNDER SECTIONS 13(A)
AND 13(B) OF THE ORDER; /6/ AND (2) IF THE AGREEMENT ADVERTS TO MATTERS
FOR WHICH STATUTORY APPEALS PROCEDURES EXIST, THE PROPOSALS VIOLATE THE
SPECIFIC EXCLUSION OF SUCH MATTERS FROM THE NEGOTIATED GRIEVANCE
PROCEDURE UNDER SECTION 13(A). WE DISAGREE WITH THE AGENCY'S POSITION.
WITH RESPECT TO THE AGENCY'S FIRST ARGUMENT (I.E. THAT ONLY
"BILATERALLY DETERMINED" MATTERS ARE SUBJECT TO THE NEGOTIATED GRIEVANCE
PROCEDURE), THE COUNCIL REJECTED THE AGENCY'S SIMILAR CONTENTION IN THE
ELMENDORF CASE /7/ AND HELD THAT THE NATURE AND SCOPE OF THE NEGOTIATED
GRIEVANCE PROCEDURE UNDER SECTION 13 ARE TO BE NEGOTIATED BY THE PARTIES
THEMSELVES, SUBJECT ONLY TO THE EXPLICIT LIMITATIONS PRESCRIBED BY THE
ORDER ITSELF.
WITH RESPECT TO THE AGENCY'S SECOND CONTENTION (I.E., THAT THE UNION
PROPOSALS WOULD SUBJECT TO THE NEGOTIATED GRIEVANCE PROCEDURE MATTERS
FOR WHICH A STATUTORY APPEALS PROCEDURE EXISTS AND THEREBY VIOLATE THE
EXPLICIT LIMITATION IN SECTION 12(A) OF THE ORDER), THE AGENCY HAS NOT
ESTABLISHED THAT THE AGREEMENT WOULD IN FACT COVER ANY MATTER FOR WHICH
A STATUTORY APPEALS PROCEDURE EXISTS. FURTHERMORE, UNDER SECTION 12(A)
OF THE ORDER, THE PROVISIONS OF WHICH MUST BE INCLUDED IN EVERY
AGREEMENT, THE ADMINISTRATION OF ANY AGREEMENT ENTERED INTO BY THE
PARTIES WOULD BE SUBJECT TO EXISTING OR FUTURE LAWS AND REGULATIONS OF
APPROPRIATE AUTHORITIES, WHICH WOULD PRECLUDE COVERAGE UNDER THE
NEGOTIATED GRIEVANCE PROCEDURE OF MATTERS COVERED BY PRESENT OR FUTURE
STATUTORY APPEALS PROCEDURES. ADDITIONALLY, AS TO ANY QUESTIONS WHICH
MIGHT ARISE CONCERNING WHETHER A GRIEVANCE IS PROPERLY SUBJECT TO THE
NEGOTIATED GRIEVANCE PROCEDURE OR IS EXCEPTED BY REASON OF A STATUTORY
APPEALS PROCEDURE, THE COUNCIL INDICATED IN THE ELMENDORF DECISION (AT
P. 6):
THE ASSISTANT SECRETARY OF LABOR IS AUTHORIZED TO DECIDE . . .
QUESTIONS OF GRIEVABILITY
SUBJECT TO APPELLATE REVIEW BY THE COUNCIL. IN ADDITION, THE COUNCIL
MAY REVIEW ARBITRATION
AWARDS AND SET ASIDE AWARDS WHICH IT FINDS TO BE IN VIOLATION OF
APPLICABLE LAW, APPROPRIATE
REGULATION, OR THE ORDER. (FOOTNOTES OMITTED.)
FOR THE FOREGOING REASONS, WE OVERRULE THE AGENCY HEAD DETERMINATION
THAT SECTIONS 2(B) AND 5(A)(2) OF ARTICLE 21 ARE NONNEGOTIABLE.
BASED ON THE FOREGOING, WE FIND THAT:
1. THE AGENCY HEAD'S DETERMINATION AS TO THE NONNEGOTIABILITY OF
ARTICLE 21, SECTION 4 WAS VALID. ACCORDINGLY, PURSUANT TO SECTION
2411.27 OF THE COUNCIL'S RULES OF PROCEDURE, THIS DETERMINATION OF THE
AGENCY HEAD IS SUSTAINED.
2. ARTICLE 18, SECTION 6 AND ARTICLE 21, SECTIONS 2(B) AND 5(A)(2),
ARE NEGOTIABLE UNDER THE ORDER. ACCORDINGLY, PURSUANT TO SECTION
2411.27 OF THE COUNCIL'S RULES OF PROCEDURE, THE AGENCY HEAD'S CONTRARY
DETERMINATIONS MUST BE SET ASIDE. THIS DECISION, HOWEVER, SHALL NOT BE
CONSTRUED AS EXPRESSING OR IMPLYING ANY OPINION OF THE COUNCIL AS TO THE
MERITS OF THE UNION'S PROPOSALS. WE DECIDE ONLY THAT, AS SUBMITTED BY
THE UNION AND BASED ON THE RECORD BEFORE US, THE PROPOSALS ARE PROPERLY
SUBJECT TO NEGOTIATION BY THE PARTIES CONCERNED UNDER SECTION 11(A) OF
THE ORDER.
BY THE COUNCIL.
ISSUED: JAN 31 1974
/1/ INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL F-111 AND
GRIFFISS AIR FORCE BASE, ROME, N.Y., FLRC NO. 71A-30 (APRIL 27, 1973),
REPORT NO. 36.
/2/ SPECIFICALLY, THE UNION PROPOSALS IN GRIFFISS PROVIDED THAT:
(1) PROPOSED ARTICLE, CIVIL DISTURBANCES, SECTION 1: "UNIT EMPLOYEES
WILL NOT BE USED TO
QUELL CIVIL DISTURBANCES IN ORDER TO COMPLY WITH MUTUAL AID
AGREEMENT. UNIT EMPLOYEES WILL BE
USED TO PERFORM RESCUE, FIRE CONTROL AND EXTINGUISHMENT OF FIRES
ONLY.'
SECTION 2: 'UNIT EMPLOYEES AND FIRE EQUIPMENT WILL REMAIN IN
QUARTERS ON ALERT STATUS WHEN
DEMONSTRATIONS ARE ANTICIPATED IN AREA OF GRIFFISS AIR FORCE BASE, AS
PROFESSIONAL
FIREFIGHTERS.'
(2) PROPOSED ARTICLE, UNRELATED DUTIES, SECTION 1: 'EMPLOYER AGREES
NOT TO REQUIRE UNIT
PERSONNEL TO PARTICIPATE IN UNRELATED DUTIES, E.G., BARRIER DETAIL
AND AFTER HOUR I&E CALLS
UNLESS REQUIRED DUE TO EMERGENCY CONDITIONS ON BASE.'
/3/ SEE E.G., FPM CHAPTER 312, SUBCHAPTER 3, SECTION 3-2.
/4/ SECTION 12 OF THE ORDER PROVIDES IN PERTINENT PART:
SEC. 12. BASIC PROVISIONS OF AGREEMENTS. EACH AGREEMENT BETWEEN AN
AGENCY AND A LABOR
ORGANIZATION IS SUBJECT TO THE FOLLOWING REQUIREMENTS-
(A) IN THE ADMINISTRATION OF ALL MATTERS COVERED BY THE AGREEMENT,
OFFICIALS AND EMPLOYEES
ARE GOVERNED BY EXISTING OR FUTURE LAWS AND THE REGULATIONS OF
APPROPRIATE AUTHORITIES,
INCLUDING POLICIES SET FORTH IN THE FEDERAL PERSONNEL MANUAL; BY
PUBLISHED AGENCY POLICIES AND
REGULATIONS IN EXISTENCE AT THE TIME THE AGREEMENT WAS APPROVED; AND
BY SUBSEQUENTLY PUBLISHED
AGENCY POLICIES AND REGULATIONS REQUIRED BY LAW OR BY THE REGULATIONS
OF APPROPRIATE
AUTHORITIES, OR AUTHORIZED BY THE TERMS OF A CONTROLLING AGREEMENT AT
A HIGHER AGENCY LEVEL;
(B) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN
ACCORDANCE WITH APPLICABLE LAWS
AND REGULATIONS-
(1) TO DIRECT EMPLOYEES OF THE AGENCY;
(2) TO HIRE, PROMOTE, TRANSFER, ASSIGN, AND RETAIN EMPLOYEES IN
POSITIONS WITHIN THE
AGENCY, AND TO SUSPEND, DEMOTE, DISCHARGE, OR TAKE OTHER DISCIPLINARY
ACTION AGAINST
EMPLOYEES;
(3) TO RELIEVE EMPLOYEES FROM DUTIES BECAUSE OF LACK OF WORK OR FOR
OTHER LEGITIMATE
REASONS;
(4) TO MAINTAIN THE EFFICIENCY OF THE GOVERNMENT OPERATIONS ENTRUSTED
TO THEM;
(5) TO DETERMINE THE METHODS, MEANS, AND PERSONNEL BY WHICH SUCH
OPERATIONS ARE TO BE
CONDUCTED; AND
(6) TO TAKE WHATEVER ACTIONS MAY BE NECESSARY TO CARRY OUT THE
MISSION OF THE AGENCY IN
SITUATIONS OF EMERGENCY; . . .
THE REQUIREMENTS OF THIS SECTION SHALL BE EXPRESSLY STATED IN THE
INITIAL OR BASIC
AGREEMENT AND APPLY TO ALL SUPPLEMENTAL, IMPLEMENTING, SUBSIDIARY, OR
INFORMAL AGREEMENTS
BETWEEN THE AGENCY AND THE ORGANIZATION.
/5/ CF. AFGE LOCAL 1923 AND SOCIAL SECURITY ADMINISTRATION
HEADQUARTERS BUREAUS AND OFFICES, BALTIMORE, MARYLAND, FLRC NO. 71A-22
(JUNE 1, 1973), REPORT NO. 39; AND VETERANS ADMINISTRATION RESEARCH
HOSPITAL, CHICAGO, ILLINOIS, FLRC NO. 71A-31 (NOVEMBER 27, 1972), REPORT
NO. 31.
/6/ SECTION 13 OF THE ORDER PROVIDES IN PERTINENT PART:
SEC. 13. GRIEVANCE AND ARBITRATION PROCEDURES. (A) AN AGREEMENT
BETWEEN AN AGENCY AND A
LABOR ORGANIZATION SHALL PROVIDE A PROCEDURE, APPLICABLE ONLY TO THE
UNIT, FOR THE
CONSIDERATION OF GRIEVANCES OVER THE INTERPRETATION OR APPLICATION OF
THE AGREEMENT. A
NEGOTIATED GRIEVANCE PROCEDURES MAY NOT COVER ANY OTHER MATTERS,
INCLUDING MATTERS FOR WHICH
STATUTORY APPEALS PROCEDURES EXIST, AND SHALL BE THE EXCLUSIVE
PROCEDURE AVAILABLE TO THE
PARTIES AND THE EMPLOYEES IN THE UNIT FOR RESOLVING SUCH GRIEVANCES.
HOWEVER, ANY EMPLOYEE OR
GROUP OF EMPLOYEES IN THE UNIT MAY PRESENT SUCH GRIEVANCES TO THE
AGENCY AND HAVE THEM
ADJUSTED, WITHOUT THE INTERVENTION OF THE EXCLUSIVE REPRESENTATIVE,
AS LONG AS THE ADJUSTMENT
IS NOT INCONSISTENT WITH THE TERMS OF THE AGREEMENT AND THE EXCLUSIVE
REPRESENTATIVE HAS BEEN
GIVEN OPPORTUNITY TO BE PRESENT AT THE ADJUSTMENT.
(B) A NEGOTIATED PROCEDURE MAY PROVIDE FOR THE ARBITRATION OF
GRIEVANCES OVER THE
INTERPRETATION OR APPLICATION OF THE AGREEMENT, BUT NOT OVER ANY
OTHER MATTERS. ARBITRATION
MAY BE INVOKED ONLY BY THE AGENCY OR THE EXCLUSIVE REPRESENTATIVE.
EITHER PARTY MAY FILE
EXCEPTIONS TO AN ARBITRATOR'S AWARD WITH THE COUNCIL, UNDER
REGULATIONS PRESCRIBED BY THE
COUNCIL.
(D) QUESTIONS THAT CANNOT BE RESOLVED BY THE PARTIES AS TO WHETHER OR
NOT A GRIEVANCE IS ON
A MATTER SUBJECT TO THE GRIEVANCE PROCEDURE IN AN EXISTING AGREEMENT,
OR IS SUBJECT TO
ARBITRATION UNDER THAT AGREEMENT, MAY BE REFERRED TO THE ASSISTANT
SECRETARY FOR DECISION.
/7/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1668 AND
ELMENDORF AIR FORCE BASE (WILDWOOD AIR FORCE STATION), ALASKA, FLRC NO.
72A-10 (MAY 21, 1973), REPORT NO. 38.
2 FLRC 48; FLRC NO. 73A-1; JANUARY 31, 1974.
FEDERAL EMPLOYEES METAL TRADES
COUNCIL OF CHARLESTON
AND
CHARLESTON NAVAL SHIPYARD,
CHARLESTON, SOUTH CAROLINA
(SYNOPSIS) FLRC NO. 73A-1
FEDERAL EMPLOYEES METAL TRADES COUNCIL OF CHARLESTON AND CHARLESTON
NAVAL SHIPYARD, CHARLESTON, SOUTH CAROLINA. THIS NEGOTIABILITY DISPUTE
INVOLVED TWO MANAGEMENT PROPOSALS WHICH THE AGENCY HEAD DETERMINED TO BE
NEGOTIABLE. THE FIRST PROPOSAL SETS FORTH PROCEDURES TO BE FOLLOWED
WHERE EMPLOYEE GRIEVANCES INVOLVE THE INTERPRETATION OF PUBLISHED AGENCY
POLICY, OR PROVISIONS OF LAW, OR REGULATION OF OUTSIDE AUTHORITY, WHICH
HAVE BEEN INCORPORATED IN THE AGREEMENT. THE SECOND PROPOSAL WOULD
ESTABLISH PROCEDURES TO BE FOLLOWED IN SETTLING MANAGEMENT GRIEVANCES
OVER THE INTERPRETATION OR APPLICATION OF THE AGREEMENT.
COUNCIL ACTION (JANUARY 31, 1974). THE COUNCIL FOUND, CONTRARY TO
THE UNION'S CONTENTIONS, THAT THE FIRST PROPOSAL GOES TO THE NATURE AND
SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURES AND THAT, BASED ON THE
REASONING OF THE COUNCIL IN ITS ELMENDORF DECISION, FLRC NO. 72A-10,
SUCH PROPOSAL IS CONSISTENT WITH SECTION 13 OF THE ORDER AND IS
NEGOTIABLE. AS TO THE SECOND PROPOSAL, THE COUNCIL, RELYING ON THE
EXPRESS LANGUAGE AND PURPOSE OF SECTION 13, RULED CONTRARY TO THE
POSITION OF THE UNION THAT MANAGEMENT GRIEVANCES MAY BE SUBJECT TO THE
NEGOTIATED GRIEVANCE PROCEDURE UNDER SECTION 13 AND THAT THE PROPOSAL IS
THEREFORE NEGOTIABLE. ACCORDINGLY, THE COUNCIL SUSTAINED THE AGENCY
HEAD'S DETERMINATIONS OF NEGOTIABILITY IN THIS CASE.
THE FEDERAL EMPLOYEES METAL TRADES COUNCIL OF CHARLESTON REPRESENTS
AN ACTIVITY-WIDE UNIT OF WAGE SYSTEM EMPLOYEES OF THE CHARLESTON NAVAL
SHIPYARD AT CHARLESTON, SOUTH CAROLINA.
DURING NEGOTIATION BETWEEN THE UNION AND THE ACTIVITY, THE ACTIVITY
PRESENTED PROPOSALS CONCERNING GRIEVANCES OF EMPLOYEES IN THE BARGAINING
UNIT ARISING UNDER THE AGREEMENT (ARTICLE 22, SECTION 19), AND DEALING
WITH MANAGEMENT GRIEVANCES ARISING UNDER THE AGREEMENT (ARTICLE 22,
SECTION 20). THE PROPOSALS ARE SET FORTH BELOW:
SHOULD AN EMPLOYEE OR GROUP OF EMPLOYEES IN THE UNIT OR THE COUNCIL
INITIATE A GRIEVANCE OR
COMPLAINT INVOLVING THE INTERPRETATION OR APPLICATION OF THE
AGREEMENT WHICH ALSO QUESTIONS
THE INTERPRETATION OF PUBLISHED AGENCY POLICY, PROVISIONS OF LAW OR
REGULATIONS OF APPROPRIATE
AUTHORITY OUTSIDE THE AGENCY, AND SUCH POLICY, LAW OR REGULATION HAS
BEEN MADE A PART OF THE
AGREEMENT, THE FOLLOWING PROCEDURE WILL APPLY:
A. PROCESSING OF THE GRIEVANCE BEYOND THE INFORMAL STAGE, SET FORTH
IN SECTION 4, WILL BE
DELAYED UNTIL THE QUESTIONED POLICY, LAW OR REGULATION HAS BEEN
INTERPRETED. IN SECURING THIS
INTERPRETATION, THE COUNCIL WILL FORWARD, VIA THE SHIPYARD COMMANDER,
ITS INQUIRY TO THE
COGNIZANT OFFICE OF ISSUE IN THE DEPARTMENT OF THE NAVY FOR REVIEW.
REQUESTS FOR
INTERPRETATION OF MATTERS EXTERNAL TO THE DEPARTMENT OF THE NAVY WILL
BE FORWARDED BY THE
COUNCIL, VIA THE SHIPYARD COMMANDER TO THE OFFICE OF CIVILIAN
MANPOWER MANAGEMENT FOR REVIEW
AND INTERPRETATION. NO HEARING WILL BE HELD IN EITHER REVIEW
PROCESS.
B. WITHIN FIFTEEN (15) CALENDAR DAYS OF THE RECEIPT OF THE
INTERPRETATION, THE GRIEVANT
MAY PROCESS THROUGH THE FORMAL GRIEVANCE PROCEDURE THE MATTER IN THE
GRIEVANCE CONCERNING THE
INTERPRETATION OR APPLICATION OF THE AGREEMENT, IF THE INTERPRETATION
RECEIVED INDICATED A
MIS-APPLICATION HAS TAKEN PLACE.
MANAGEMENT GRIEVANCE(S) CONCERNING THE INTERPRETATION OR APPLICATION
OF PROVISIONS OF THIS
AGREEMENT SHALL BE SUBMITTED, IN WRITING, BY THE SHIPYARD COMMANDER
TO THE COUNCIL
PRESIDENT. SUCH GRIEVANCES MUST BE DELIVERED WITHIN THE TIME LIMIT
OUTLINED IN SECTION 6,
ABOVE, AND MUST CONTAIN THE MINIMUM INFORMATION REQUIRED FOR
GRIEVANCES SUBMITTED UNDER STEP
1, SECTION 4, EXCEPT FOR INFORMATION CONCERNING INFORMAL EFFORTS TO
RESOLVE THE ISSUE(S). THE
COUNCIL PRESIDENT WILL ISSUE A WRITTEN DECISION ON THE ISSUE(S)
RAISED IN THE MANAGEMENT
GRIEVANCE WITHIN TEN (10) WORK DAYS FOLLOWING THE CONSULTATION
MEETING. ANY ISSUE NOT
RESOLVED BY THE COUNCIL DECISION MAY BE REFERRED TO ARBITRATION UNDER
(THE) PROVISIONS OF
ARTICLE XXIII OF THIS AGREEMENT, PROVIDED THE REFERRAL IS MADE WITH
FIFTEEN (15) CALENDAR DAYS
OF THE SHIPYARD COMMANDER'S RECEIPT OF THE COUNCIL DECISION.
THE UNION CONTENDED THAT BOTH PROPOSALS VIOLATED SECTION 13 OF THE
ORDER AND WERE, THEREFORE, NONNEGOTIABLE. UPON REFERRAL, THE DEPARTMENT
OF DEFENSE DETERMINED, CONTRARY TO THE UNION POSITION, THAT BOTH
PROPOSALS WERE CONSISTENT WITH SECTION 13 OF THE ORDER AND THEREFORE
NEGOTIABLE. THE UNION APPEALED TO THE COUNCIL FROM THAT DETERMINATION
AND THE AGENCY FILED A STATEMENT OF POSITION IN SUPPORT OF THE
DETERMINATION. /1/
THE QUESTIONS FOR COUNCIL RESOLUTION CONCERN THE NEGOTIABILITY UNDER
SECTION 13 OF THE ORDER /2/ OF (1) ARTICLE 22, SECTION 19, AND (2)
ARTICLE 22, SECTION 20. THE PROPOSALS WILL BE CONSIDERED SEPARATELY
BELOW:
THE PROPOSAL PRESCRIBES THE PROCEDURES TO BE FOLLOWED WHEN EMPLOYEES
IN THE BARGAINING UNIT INITIATE A GRIEVANCE WHICH INVOLVES THE
INTERPRETATION OF PUBLISHED AGENCY POLICY OR PROVISIONS OF LAW OR
REGULATION OF OUTSIDE AUTHORITY WHICH HAVE BEEN INCORPORATED IN THE
AGREEMENT. THE PROPOSED PROCEDURES WOULD DELAY PROCESSING OF THE
GRIEVANCE BEYOND THE INFORMAL STAGE OF THE NEGOTIATED GRIEVANCE
PROCEDURE UNTIL AN INTERPRETATION OF THE POLICY, LAW OR REGULATION IN
QUESTION WAS OBTAINED BY THE UNION FROM THE DEPARTMENT OF THE NAVY OR
THE DEPARTMENT OF DEFENSE. THEN, FOLLOWING RECEIPT OF THE
INTERPRETATION, THE GRIEVANCE COULD BE PROCESSED THROUGH THE FORMAL
STAGE OF THE GRIEVANCE PROCEDURE IF THE INTERPRETATION RECEIVED
INDICATED THAT A MISINTERPRETATION HAD TAKEN PLACE.
THE UNION'S PRIMARY CONTENTION IS THAT THE PROPOSAL IS VIOLATIVE OF
SECTION 13 OF THE ORDER BECAUSE IT WOULD, IN EFFECT, PERMIT THE
RESOLUTION OF GRIEVANCES OVER THE INTERPRETATION OR APPLICATION OF THE
AGREEMENT THROUGH A PROCEDURE OTHER THAN THE NEGOTIATED GRIEVANCE
PROCEDURE. WE FIND THAT ARGUMENT TO BE WITHOUT MERIT.
RESOLUTION OF THE ISSUE INVOLVED IN THE DISPUTE CONCERNING THIS
PROPOSAL IS GOVERNED BY THE COUNCIL'S REASONING IN THE ELMENDORF
DECISION. /3/ IN ELMENDORF WE STATED IN PERTINENT PART:
(B)OTH THE AMENDED ORDER AND THE REPORT AND RECOMMENDATIONS WHICH LED
TO THE AMENDMENTS
INTENDED THAT THE NATURE AND SCOPE OF THE NEGOTIATED GRIEVANCE
PROCEDURES WERE TO BE LEFT TO
DETERMINATION BY THE PARTIES AT THE BARGAINING TABLE, WITHIN, OF
COURSE, THE ORDER'S
PRESCRIPTION THAT THE SCOPE OF THE PROCEDURES NEGOTIATED WERE TO BE
LIMITED TO GRIEVANCES OVER
THE INTERPRETATION OR APPLICATION OF THE AGREEMENT . . . (I)T WAS
INTENDED BY THE COUNCIL AND
BY THE SECTION 13 AMENDMENTS THAT THE NATURE AND SCOPE OF THE
NEGOTIATED GRIEVANCE PROCEDURES
WERE TO BE NEGOTIATED BY THE PARTIES SUBJECT ONLY TO THE EXPLICIT
LIMITATIONS PRESCRIBED BY
THE ORDER ITSELF.
HOWEVER, LIMITATIONS ON THE SCOPE OF NEGOTIATED GRIEVANCE PROCEDURES
ARE NOT INHERENTLY
INCONSISTENT WITH THE ORDER AND THE REPORT. SUCH LIMITATIONS MAY BE
PROPER IF ESTABLISHED
THROUGH THE PROCESS OF NEGOTIATIONS . . . /4/
VIEWING THIS CASE IN THE LIGHT OF OUR REASONING IN ELMENDORF, WE MUST
REJECT THE UNION'S CONTENTION THAT THE PROPOSED ARTICLE 22, SECTION 19
VIOLATES SECTION 13 OF THE ORDER. WHAT THE AGENCY IS PROPOSING HERE
GOES TO THE NATURE AND SCOPE OF THE GRIEVANCE PROCEDURE THAT WOULD BE
NEGOTIATED BY THE PARTIES, I.E., A MEANS OF HANDLING DISPUTES INVOLVING
THE INTERPRETATION OF PUBLISHED AGENCY POLICY OR PROVISIONS OF LAW OR
REGULATION OF OUTSIDE AUTHORITY WHICH MIGHT BE INCORPORATED IN THE
COLLECTIVE BARGAINING AGREEMENT. NOTHING IN THE ORDER, EXPRESSLY OR BY
IMPLICATION, LIMITS THE NEGOTIABILITY OF SUCH PROCEDURES.
ACCORDINGLY, THE MANAGEMENT PROPOSAL NUMBERED ARTICLE 22, SECTION 19
UNDER CONSIDERATION IN THIS CASE MUST BE HELD TO BE CONSISTENT WITH
SECTION 13 OF THE ORDER AND THEREFORE NEGOTIABLE.
THE PRINCIPAL ISSUE WITH REGARD TO THIS PROPOSAL IS WHETHER
MANAGEMENT GRIEVANCES CONCERNING THE INTERPRETATION OR APPLICATION OF
THE AGREEMENT MAY BE SUBJECT TO THE NEGOTIATED GRIEVANCE PROCEDURE UNDER
SECTION 13 OF THE ORDER.
THE UNION CONTENDS THAT THIS PROPOSAL IS VIOLATIVE OF SECTION 13(A)
OF THE ORDER, ARGUING IN EFFECT THAT THE NEGOTIATED GRIEVANCE PROCEDURE
IS ONLY AVAILABLE TO EMPLOYEES IN THE UNIT (OR THEIR REPRESENTATIVE) AND
THAT MANAGEMENT IS EXCLUDED FROM BRINGING A GRIEVANCE CONCERNING THE
INTERPRETATION OR APPLICATION OF THE AGREEMENT UNDER THE NEGOTIATED
PROCEDURE. WE CANNOT AGREE.
SECTION 13(A) PROVIDES, IN PERTINENT PART, THAT THE "NEGOTIATED
GRIEVANCE PROCEDURE . . . SHALL BE THE EXCLUSIVE PROCEDURE AVAILABLE TO
THE PARTIES AND THE EMPLOYEES IN THE UNIT FOR RESOLVING . . . GRIEVANCES
(OVER THE INTERPRETATION OR APPLICATION OF THE AGREEMENT)." SECTION
13(B) FURTHER PROVIDES, IN REVELANT PART, THAT:
. . . ARBITRATION MAY BE INVOKED ONLY BY THE AGENCY OR THE EXCLUSIVE
REPRESENTATIVE. EITHER PARTY MAY FILE EXCEPTIONS TO AN ARBITRATOR'S
AWARD WITH THE COUNCIL,
UNDER REGULATIONS PRESCRIBED BY THE COUNCIL.
THESE PROVISIONS ARE CLEAR AND UNAMBIGUOUS. THE NEGOTIATED GRIEVANCE
PROCEDURE UNDER SECTION 13(A) IS THE EXCLUSIVE PROCEDURE AVAILABLE "TO
THE PARTIES AND THE EMPLOYEES IN THE UNIT" FOR SETTLING GRIEVANCES OVER
THE INTERPRETATIONS OR APPLICATION OF THE NEGOTIATED AGREEMENT. THE
"PARTIES" ARE OF COURSE THE PARTIES TO THE AGREEMENT ITSELF, VIZ. THE
EXCLUSIVE REPRESENTATIVE AND AGENCY MANAGEMENT, NOT JUST THE EXCLUSIVE
REPRESENTATIVE. THIS LANGUAGE OF SECTION 13(A) IS CONSISTENT WITH THE
PROVISIONS THAT FOLLOW. UNDER SECTION 13(B), EITHER THE AGENCY OR THE
EXCLUSIVE REPRESENTATIVE MAY INVOKE ARBITRATION AND EITHER PARTY (I.E.,
THE AGENCY OR THE UNION) MAY FILE EXCEPTIONS TO THE ARBITRATION AWARD.
THUS, BY ITS EXPRESS LANGUAGE, SECTION 13 CLEARLY REFLECTS AN INTENT
THAT BOTH SIDES TO THE NEGOTIATED AGREEMENT, NAMELY AGENCY MANAGEMENT
AND THE EXCLUSIVE REPRESENTATIVE, HAVE EQUAL ACCESS TO THE NEGOTIATED
GRIEVANCE PROCEDURE UNDER THE TERMS AND PROCEDURES INCORPORATED THEREIN
BY THE PARTIES THEMSELVES.
APART FROM THE LITERAL PROVISIONS OF SECTION 13, THE PURPOSES OF THAT
SECTION COMPEL THE CONCLUSION THAT MANAGEMENT GRIEVANCES MAY BE SUBJECT
TO THE NEGOTIATED GRIEVANCE PROCEDURE. FOR SECTION 13 IS DESIGNED TO
PROVIDE A PROCEDURE FOR RESOLVING DISPUTES BETWEEN THE PARTIES
CONCERNING THE INTERPRETATION OR APPLICATION OF THE AGREEMENT. SUCH
DISPUTES INTERFERE WITH EFFECTIVE LABOR-MANAGEMENT RELATIONS, AND IT IS
THE RESOLUTION OF SUCH DISPUTES, NOT THE IDENTITY OF THE DISPUTANT,
WHICH IS OF OVERRIDING IMPORTANCE UNDER SECTION 13 OF THE ORDER.
ACCORDINGLY, WE FIND THAT THE MANAGEMENT PROPOSAL NUMBERED ARTICLE
22, SECTION 20 IS NOT VIOLATIVE OF THE ORDER AS CONTENDED BY THE UNION.
ON THE CONTRARY, WE FIND THAT THE PROPOSAL IS CONSISTENT WITH THE ORDER
AND THEREFORE NEGOTIABLE.
BASED ON THE REASONS SET FORTH ABOVE, WE FIND THAT THE DETERMINATION
BY THE AGENCY THAT THE MANAGEMENT PROPOSALS HERE INVOLVED WERE
NEGOTIABLE UNDER THE ORDER WAS PROPER AND MUST BE SUSTAINED.
THE FOREGOING DECISION SHALL NOT BE CONSTRUED AS EXPRESSING OR
IMPLYING ANY OPINION OF THE COUNCIL AS TO THE MERITS OF THE AGENCY'S
PROPOSALS IN THIS CASE. WE DECIDE HEREIN ONLY THE ISSUES AS TO THE
MUTUAL OBLIGATION OF THE PARTIES UNDER SECTION 11(A) OF EXECUTIVE ORDER
11491 TO NEGOTIATE ON THE PROPOSALS.
BY THE COUNCIL.
ISSUED: JAN 31 1974
/1/ THE AGENCY INITIALLY FILED A MOTION TO DISMISS THE UNION'S
NEGOTIABILITY APPEAL, CONTENDING THAT THE TYPE OF AGENCY DETERMINATION
INVOLVED WAS OUTSIDE THE SCOPE OF COUNCIL REVIEW UNDER SECTION 11(C)(4)
OF THE ORDER AND SECTION 2411.22 OF THE COUNCIL'S RULES. THE COUNCIL,
DETERMINING THAT REVIEW OF THE NEGOTIABILITY DISPUTE WOULD BE CONSISTENT
WITH THE UNDERLYING PURPOSE OF THE ORDER AND THE COUNCIL'S RULES OF
PROCEDURE, DENIED THE AGENCY'S MOTION.
/2/ SECTION 13, PROVIDES, IN PERTINENT PART:
SEC. 13. GRIEVANCE AND ARBITRATION PROCEDURES. (A) AN AGREEMENT
BETWEEN AN AGENCY AND A
LABOR ORGANIZATION SHALL PROVIDE A PROCEDURE, APPLICABLE ONLY TO THE
UNIT, FOR THE
CONSIDERATION OF GRIEVANCES OVER THE INTERPRETATION OR APPLICATION OF
THE AGREEMENT. A
NEGOTIATED GRIEVANCE PROCEDURE MAY NOT COVER ANY OTHER MATTERS,
INCLUDING MATTERS FOR WHICH
STATUTORY APPEALS PROCEDURES EXIST, AND SHALL BE THE EXCLUSIVE
PROCEDURE AVAILABLE TO THE
PARTIES AND THE EMPLOYEES IN THE UNIT FOR RESOLVING SUCH GRIEVANCES .
. .
(B) A NEGOTIATED PROCEDURE MAY PROVIDE FOR THE ARBITRATION OF
GRIEVANCES OVER THE
INTERPRETATION OR APPLICATION OF THE AGREEMENT, BUT NOT OVER ANY
OTHER MATTERS. ARBITRATION
MAY BE INVOKED ONLY BY THE AGENCY OR THE EXCLUSIVE REPRESENTATIVE.
EITHER PARTY MAY FILE
EXCEPTIONS TO AN ARBITRATOR'S AWARD WITH THE COUNCIL, UNDER
REGULATIONS PRESCRIBED BY THE
COUNCIL.
(C) GRIEVANCES INITIATED BY AN EMPLOYEE OR GROUP OF EMPLOYEES IN THE
UNIT ON MATTERS OTHER
THAN THE INTERPRETATION OR APPLICATION OF AN EXISTING AGREEMENT MAY
BE PRESENTED UNDER ANY
PROCEDURE AVAILABLE FOR THE PURPOSE.
/3/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1668 AND
ELMENDORF AIR FORCE BASE (WILDWOOD AIR FORCE STATION), ALASKA, FLRC NO.
72A-10 (MAY 15, 1973), REPORT OF CASE DECISION NO. 38, DATED MAY 21,
1973. THIS CASE INVOLVED THE QUESTION OF THE VALIDITY UNDER THE ORDER
OF TWO PROVISIONS OF AN AGENCY DIRECTIVE WHICH RESPECTIVELY (1) REQUIRED
THAT ANY AGREEMENT NEGOTIATED WITH A LABOR ORGANIZATION CONTAIN A
STATEMENT THAT QUESTIONS AS TO THE INTERPRETATION OF PUBLISHED AGENCY
POLICIES OR REGULATIONS, PROVISIONS OF LAW, OR REGULATIONS OF
APPROPRIATE AUTHORITIES OUTSIDE THE AGENCY WERE NOT TO BE SUBJECT TO THE
GRIEVANCE PROCEDURE NEGOTIATED BY THE PARTIES, REGARDLESS OF WHETHER
SUCH POLICIES, LAWS OR REGULATIONS WERE INCORPORATED OR REFERENCED IN
THE AGREEMENT; AND (2) ESTABLISHED AN ALTERATIVE AGENCY PROCEDURE FOR
THE RESOLUTION OF SUCH QUESTIONS. THE COUNCIL HELD THAT THE DISPUTED
PROVISIONS OF THE AGENCY DIRECTIVE WERE VIOLATIVE OF SECTION 13 OF THE
ORDER, AS AMENDED, AND IS DISCORD WITH THE CONCLUDING REQUIREMENT IN
E.O. 11616 THAT "EACH AGENCY SHALL ISSUE APPROPRIATE POLICIES AND
REGULATIONS CONSISTENT WITH THIS ORDER FOR ITS IMPLEMENTATION."
/4/ ID., AT PP. 5-6.
2 FLRC 45; FLRC NO. 73A-61; JANUARY 21, 1974.
MR. STUART ROTHMAN
ROGERS & WELLS
1666 K STREET, NW.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 73A-61
VETERANS ADMINISTRATION HOSPITAL, TAMPA, FLORIDA, A/SLMR NO. 330.
THE ASSISTANT SECRETARY DISMISSED THE REPRESENTATION PETITION FILED BY
LICENSED PRACTICAL NURSES ASSOCIATION OF FLORIDA, INC. (LPNAF), FINDING
INAPPROPRIATE THE REQUESTED SEPARATE UNIT OF LICENSED PRACTICAL NURSES
EMPLOYED AT THE ACTIVITY. LPNAF APPEALED TO THE COUNCIL, CONTENDING
THAT THE ASSISTANT SECRETARY'S DECISION APPEARS ARBITRARY AND CAPRICIOUS
BECAUSE HE FAILED PROPERLY TO CONSIDER, EVALUATE AND APPLY EVIDENCE
PRESENTED AT THE HEARING; AND THAT A MAJOR POLICY ISSUE IS PRESENTED
BECAUSE OF THE ABSENCE OF ANY DISPOSITIVE PRECEDENT UNDER THE
CIRCUMSTANCES OF THIS CASE. LPNAF ALSO REQUESTED A STAY OF THE
ASSISTANT SECRETARY'S DECISION.
COUNCIL ACTION (JANUARY 21, 1974). THE COUNCIL HELD THAT THE
ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY AND CAPRICIOUS
SINCE IT DOES NOT APPEAR THAT THE ASSISTANT SECRETARY ACTED WITHOUT
JUSTIFICATION IN HIS FINDINGS. THE COUNCIL ALSO HELD THAT THE SUBJECT
DECISION DOES NOT PRESENT A MAJOR POLICY ISSUE, SINCE SECTION 10(B) OF
THE ORDER CLEARLY ESTABLISHES THE CRITERIA TO BE APPLIED IN DETERMINING
WHETHER A UNIT IS APPROPRIATE FOR EXCLUSIVE REPRESENTATION, AND SUCH
CRITERIA WERE PROPERLY CONSIDERED AND INVOKED BY THE ASSISTANT SECRETARY
IN THIS CASE. ACCORDINGLY, THE COUNCIL DENIED REVIEW OF LPNAF'S APPEAL
UNDER SECTION 2411.12 OF THE COUNCIL'S RULES OF PROCEDURE. THE COUNCIL
LIKEWISE DENIED LPNAF'S REQUEST FOR A STAY.
DEAR MR. ROTHMAN:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE, AND THE
AGENCY'S OPPOSITION THERETO.
IN PERTINENT PART, THE ASSISTANT SECRETARY DISMISSED THE PETITION OF
THE LICENSED PRACTICAL NURSES ASSOCIATION OF FLORIDA, INC. FOR A
SEPARATE UNIT OF LICENSED PRACTICAL NURSES (LPN'S) AT THE VETERANS
ADMINISTRATION HOSPITAL, TAMPA, FLORIDA. MORE PARTICULARLY, THE
ASSISTANT SECRETARY FOUND AS FOLLOWS (AT PP. 7-9):
UNDER ALL OF THE CIRCUMSTANCES, I FIND THAT THE UNIT OF LPN'S SOUGHT
BY THE LPNA IS NOT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER.
THUS, IT IS CLEAR THAT
THE DUTIES OF THIS GROUP OF THE LPN'S ARE IDENTICAL TO THOSE OF THE
NA'S (NURSING ASSISTANTS)
(WHO ARE INCLUDED IN THE NONPROFESSIONAL EMPLOYEE UNIT SOUGHT BY THE
AFGE) WITH THE EXCEPTION
OF THE ADMINISTERING OF MEDICATION, ASSIGNMENT TO THE CORONARY UNIT,
AND THE OCCASIONAL
TEMPORARY FILLING IN FOR THE STAFF NURSES FOR SHORT PERIODS OF TIME.
MOREOVER, LPN'S ARE
SUBJECT TO THE SAME SUPERVISION AS NA'S AND THEIR PAY SCALES OVERLAP.
ADDITIONALLY, THE
RECORD REVEALS THAT THE LPN'S SHARE THE SAME BENEFITS AND ARE
GOVERNED BY THE SAME PERSONNEL
POLICIES AS OTHER NONPROFESSIONAL EMPLOYEES OF THE ACTIVITY IN THE
UNIT SOUGHT BY THE
AFGE. ACCORDINGLY, IN MY VIEW, THE LPN'S DO NOT CONSTITUTE A
FUNCTIONALLY DISTINCT GROUP WITH
A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST, AND DO NOT SHARE
COMMONALITY OF INTERESTS
SUFFICIENTLY DISTINCT FROM THE OTHER NONPROFESSIONAL EMPLOYEES IN THE
UNIT SOUGHT BY THE AFGE
TO WARRANT SEPARATE REPRESENTATION. TO PERMIT SUCH SEPARATE
REPRESENTATION WOULD, IN MY
JUDGMENT, LEAD TO EXCESSIVE FRAGMENTATION OF UNITS IN THE HEALTH CARE
SERVICE WHICH CLEARLY
WOULD NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS AS REQUIRED BY THE
ORDER. CONSEQUENTLY, I FIND THAT UNIT SOUGHT BY THE LPNA IS NOT
APPROPRIATE FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION, AND I SHALL THEREFORE ORDER THAT ITS
PETITION BE
DISMISSED. (FOOTNOTE OMITTED)
IN YOUR REQUEST FOR REVIEW, YOU ASSERT THAT THE ASSISTANT SECRETARY'S
DECISION APPEARS ARBITRARY AND CAPRICIOUS BECAUSE HE FAILED TO PROPERLY
CONSIDER, EVALUATE AND APPLY EVIDENCE PRESENTED AT THE HEARING WHICH YOU
CONTEND ESTABLISHES THAT LPN'S ARE A CRAFT WITH A SEPARATE AND DISTINCT
COMMUNITY OF INTEREST, AND THEREFORE ENTITLED TO A SEPARATE BARGAINING
UNIT. YOU FURTHER CONTEND THAT THE ASSISTANT SECRETARY'S DECISION
PRESENTS A MAJOR POLICY ISSUE IN THAT THERE HAD BEEN NO PREVIOUS HISTORY
OF COLLECTIVE BARGAINING AT THE FACILITY AND NO PRIOR DECISION HAS BEEN
RENDERED BY THE ASSISTANT SECRETARY AS TO THE APPROPRIATENESS UNDER
THESE CIRCUMSTANCES OF THE UNIT HERE SOUGHT.
IN THE COUNCIL'S OPINION THE ASSISTANT SECRETARY'S ACTIONS DO NOT
APPEAR ARBITRARY AND CAPRICIOUS NOR DOES THE DECISION PRESENT A MAJOR
POLICY ISSUE. WITH RESPECT TO YOUR CONTENTIONS RELATING TO THE MATTERS
RELIED UPON BY THE ASSISTANT SECRETARY IN HIS DETERMINATION, IT DOES NOT
APPEAR THAT THE ASSISTANT SECRETARY ACTED WITHOUT JUSTIFICATION IN HIS
FINDINGS. AS TO THE ALLEGED MAJOR POLICY ISSUE, SECTION 10(B) OF THE
ORDER CLEARLY ESTABLISHES THE CRITERIA TO BE APPLIED IN DETERMINING
WHETHER A UNIT IS APPROPRIATE FOR EXCLUSIVE REPRESENTATION, AND SUCH
CRITERIA WERE PROPERLY CONSIDERED AND INVOKED BY THE ASSISTANT SECRETARY
IN THE INSTANT CASE.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS AND DOES NOT PRESENT A MAJOR POLICY ISSUE, YOUR PETITION
FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED IN SECTION 2411.12
OF THE COUNCIL'S RULES OF PROCEDURE. ACCORDINGLY, THE COUNCIL HAS
DIRECTED THAT REVIEW OF YOUR APPEAL BE DENIED. LIKEWISE, THE COUNCIL
HAS DIRECTED THAT YOUR REQUEST FOR A STAY BE DENIED UNDER SECTION
2411.47(C) OF THE COUNCIL'S RULES OF PROCEDURE.
BY DIRECTION OF THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
N. JACOBS
VA
E. B. MEYERS
W. C. MUDGETT
AFGE
R. R. BROWN
NFFE
2 FLRC 43; FLRC NO. 73A-65; JANUARY 14, 1974.
MR. G. C. GARDNER, JR.
ASSISTANT ADMINISTRATOR FOR
ADMINISTRATION
GENERAL SERVICES ADMINISTRATION
18TH & F STREETS, NW.
WASHINGTON, D.C. 20405
(SYNOPSIS) FLRC NO. 73A-65
GENERAL SERVICES ADMINISTRATION, REGION 9, SAN FRANCISCO, CALIFORNIA,
A/SLMR NO. 333. THE AGENCY APPEALED TO THE COUNCIL FROM THE ASSISTANT
SECRETARY'S DECISION AND DIRECTION OF ELECTIONS, AND REQUESTED THAT HIS
DIRECTION OF ELECTIONS BE HELD IN ABEYANCE PENDING COUNCIL DETERMINATION
OF ITS APPEAL.
COUNCIL ACTION (JANUARY 14, 1974). THE COUNCIL DENIED REVIEW OF THE
AGENCY'S INTERLOCUTORY APPEAL, WITH PREJUDICE TO THE RENEWAL OF THE
CONTENTIONS IN A PETITION DULY FILED WITH THE COUNCIL AFTER A FINAL
DECISION ON THE ENTIRE CASE BY THE ASSISTANT SECRETARY. THE COUNCIL
LIKEWISE DENIED THE AGENCY'S REQUEST THAT THE ASSISTANT SECRETARY'S
DIRECTION OF ELECTIONS BE HELD IN ABEYANCE.
DEAR MR. GARDNER:
REFERENCE IS MADE TO YOUR PETITION FOR REVIEW, AND YOUR REQUEST THAT
THE ASSISTANT SECRETARY'S DIRECTION OF ELECTIONS BE HELD IN ABEYANCE
PENDING DECISION OF YOUR APPEAL, IN THE ABOVE-ENTITLED CASE.
SECTION 2411.41 OF THE COUNCIL'S RULES OF PROCEDURE PROHIBITS
INTERLOCUTORY APPEALS. THAT IS, THE COUNCIL WILL NOT CONSIDER A
PETITION FOR REVIEW OF AN ASSISTANT SECRETARY'S DECISION UNTIL A FINAL
DECISION HAS BEEN RENDERED ON THE ENTIRE PROCEEDING BEFORE HIM. MORE
PARTICULARLY, IN A CASE SUCH AS HERE INVOLVED, THE COUNCIL WILL
ENTERTAIN AN APPEAL ONLY AFTER A CERTIFICATION OF REPRESENTATIVE OR OF
THE RESULTS OF THE ELECTIONS HAS BEEN ISSUED, OR AFTER OTHER FINAL
DISPOSITION HAS BEEN MADE OF THE ENTIRE REPRESENTATION MATTER BY THE
ASSISTANT SECRETARY.
SINCE A FINAL DECISION HAS NOT BEEN SO RENDERED IN THE PRESENT CASE,
THE COUNCIL HAS DIRECTED THAT YOUR APPEAL BE DENIED, WITHOUT PREJUDICE
TO THE RENEWAL OF YOUR CONTENTIONS IN A PETITION DULY FILED WITH THE
COUNCIL AFTER A FINAL DECISION ON THE ENTIRE CASE BY THE ASSISTANT
SECRETARY. YOUR FURTHER REQUEST THAT THE ASSISTANT SECRETARY'S
DIRECTION OF ELECTIONS BE HELD IN ABEYANCE PENDING DECISION ON YOUR
APPEAL IS THEREFORE LIKEWISE DENIED.
BY DIRECTION OF THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
J. C. GARRET
IFFP
C. RISTESUND
AFGE
3 FLRC 874; FLRC NO. 75P-1; MAY 23, 1975.
MRS. ROLLEE LOWENSTEIN
ASSISTANT GENERAL COUNSEL
GENERAL ACCOUNTING OFFICE
441 G STREET, NW.
WASHINGTON, D.C. 20548
(SYNOPSIS) FLRC NO. 75P-1
THE GENERAL ACCOUNTING OFFICE, IN THE COURSE OF CONSIDERING A REQUEST
FOR A DECISION PRESENTED TO IT BY THE ACTING ASSISTANT SECRETARY OF THE
ARMY (FINANCIAL MANAGEMENT), REQUESTED A COUNCIL STATEMENT AND
INTERPRETATION OF EXECUTIVE ORDER 11491, AS AMENDED, CONCERNING THE
VALIDITY OF THE FOLLOWING AGREEMENT PROVISION:
IN RECOGNITION OF THE SPECIAL CIRCUMSTANCES CURRENTLY IN EXISTENCE
AND THE RESPONSIBILITIES
INVOLVED IN CARRYING OUT AN EFFECTIVE LABOR-MANAGEMENT PROGRAM, IT IS
AGREED THAT THE STATE
UNION REPRESENTATIVE (SUR) WILL BE ADMINISTRATIVELY EXCUSED FOR HALF
OF EACH DAY OF THE SCHOOL
YEAR AND GRANTED LEAVE WITHOUT PAY FOR THE OTHER HALF OF EACH DAY TO
ALLOW THE NECESSARY TIME
TO ACCOMPLISH LABOR-MANAGEMENT RELATED ACTIVITIES.
PURSUANT TO SECTION 4(B) OF THE ORDER AND PART 2410 OF THE COUNCIL'S
RULES AND REGULATIONS (5 CFR 2410), THE COUNCIL CONSIDERED THE MATTER
AND, IN ACCORDANCE WITH SECTION 2410.6 OF ITS RULES OF PROCEDURE (5 CFR
2410.6), SOLICITED THE VIEWS OF INTERESTED PARTIES.
THE COUNCIL FOUND THAT THE ONLY PROVISION OF THE ORDER DEALING
SPECIFICALLY WITH THE USE OF OFFICIAL TIME IS SECTION 20 AND THAT THE
RESTRICTIONS CONTAINED THEREIN ARE SPECIFIC RATHER THAN ALL-INCLUSIVE.
THE PROHIBITIONS CONTAINED IN THE FIRST PART OF SECTION 20 CONCERNING
THE USE OF OFFICIAL TIME FOR INTERNAL UNION BUSINESS ARE DIRECTED
TOWARDS RESTRICTING TO NONDUTY HOURS ACTIVITIES WHICH ARE OF PRIMARY
CONCERN AND BENEFIT ONLY TO THE LABOR ORGANIZATION. THE SECOND PART OF
SECTION 20 PROHIBITS EMPLOYEES WHO REPRESENT A LABOR ORGANIZATION FROM
BEING ON OFFICIAL TIME WHEN NEGOTIATING AN AGREEMENT, EXCEPT TO THE
EXTENT THAT THE NEGOTIATING PARTIES AGREE OTHERWISE WITHIN CERTAIN
SPECIFIED LIMITS. THEREFORE, WITH RESPECT TO THE ISSUE PRESENTED, THE
COUNCIL DETERMINED THAT NOTHING IN THE ORDER PROHIBITS AN AGENCY AND
LABOR ORGANIZATION FROM NEGOTIATING PROVISIONS WHICH PROVIDE FOR
OFFICIAL TIME FOR UNION REPRESENTATIVES TO ENGAGE IN CONTRACT
ADMINISTRATION AND OTHER REPRESENTATIONAL ACTIVITIES WHICH ARE OF MUTUAL
INTEREST TO BOTH THE AGENCY AND THE LABOR ORGANIZATION AND WHICH RELATE
TO THE LABOR-MANAGEMENT RELATIONSHIP AND NOT TO "INTERNAL" UNION
BUSINESS. EXAMPLES OF SUCH REPRESENTATIONAL AND CONTRACT ADMINISTRATION
ACTIVITIES INCLUDE THE INVESTIGATION AND ATTEMPTED INFORMAL RESOLUTION
OF EMPLOYEE GRIEVANCES, PARTICIPATION IN FORMAL GRIEVANCE RESOLUTION
PROCEDURES, ATTENDING OR PREPARING FOR MEETINGS OF COMMITTEES ON WHICH
BOTH THE UNION AND MANAGEMENT ARE REPRESENTED AND DISCUSSING PROBLEMS IN
AGREEMENT ADMINISTRATION WITH MANAGEMENT OFFICIALS.
FURTHER, THE COUNCIL INDICATED THAT THE TYPES OF REPRESENTATIONAL
ACTIVITIES AGREED TO IN THIS CASE, WHEN THE AGENCY DETERMINES THAT SUCH
ACTIVITIES ARE RELATED TO THE PERFORMANCE OF UNION-MANAGEMENT FUNCTIONS
CONTRIBUTING TO THE EFFICIENT ADMINISTRATION OF THE AGENCY, WOULD APPEAR
TO BE CONSISTENT WITH THE STATED PURPOSES OF THE ORDER AND NOTED THAT
THE AGREEMENT PROVISION AT ISSUE PERTAINING TO THE USE OF OFFICIAL TIME
FOR CONTRACT ADMINISTRATION PURPOSES IS CONCORDANT WITH SIMILAR
NEGOTIATED PROVISIONS CURRENTLY OF WIDE APPLICATION THROUGHOUT THE
FEDERAL SECTOR.
DEAR MRS. LOWENSTEIN:
THIS IS IN FURTHER REPLY TO YOUR LETTER OF JANUARY 22, 1975,
REQUESTING A COUNCIL STATEMENT AND INTERPRETATION OF EXECUTIVE ORDER
11491, AS AMENDED, CONCERNING THE VALIDITY OF THE FOLLOWING AGREEMENT
PROVISION:
IN RECOGNITION OF THE SPECIAL CIRCUMSTANCES CURRENTLY IN EXISTENCE
AND THE RESPONSIBILITIES
INVOLVED IN CARRYING OUT AN EFFECTIVE LABOR-MANAGEMENT PROGRAM, IT IS
AGREED THAT THE STATE
UNION REPRESENTATIVE (SUR) WILL BE ADMINISTRATIVELY EXCUSED FOR HALF
OF EACH DAY OF THE SCHOOL
YEAR AND GRANTED LEAVE WITHOUT PAY FOR THE OTHER HALF OF EACH DAY TO
ALLOW THE NECESSARY TIME
TO ACCOMPLISH LABOR-MANAGEMENT RELATED ACTIVITIES.
THAT PROVISION IS PART OF AN AGREEMENT NEGOTIATED BETWEEN THE UNITED
STATES DEPENDENTS SCHOOLS, EUROPEAN AREA (USDESEA) AND THE OVERSEAS
FEDERATION OF TEACHERS (OFT), AMERICAN FEDERATION OF TEACHERS, AFL-CIO.
THE MATTER IS BEFORE YOUR OFFICE AS THE RESULT OF A REQUEST SUBMITTED BY
THE ACTING ASSISTANT SECRETARY OF THE ARMY (FINANCIAL MANAGEMENT) FOR AN
OPINION FROM THE COMPTROLLER GENERAL AS TO THE "LEGALITY OR PROPRIETY OF
THE AGREEMENT PROVISION." IN HIS REQUEST, THE ACTING ASSISTANT SECRETARY
STATES THAT THE EFFECT OF THIS PROVISION WOULD BE TO "ALLOW THE
GOVERNMENT EMPLOYEE-- A MATHEMATICS TEACHER-- TO SERVE FULL TIME AS A
UNION OFFICIAL ON UNION BUSINESS FOR THE THREE-YEAR TERM OF THE LABOR
AGREEMENT AND RECEIVE ONE-HALF OF HIS GOVERNMENT SALARY. SUCH A
PROVISION, IF PERMITTED TO STAND, WOULD ESTABLISH NEGOTIATION PRECEDENT
FOR HUNDREDS OF GOVERNMENT EMPLOYEES WHO ARE UNION REPRESENTATIVES."
THEREFORE, THE ACTING ASSISTANT SECRETARY STATES THAT THE "DEPARTMENT OF
THE ARMY . . . IS CONCERNED NOT ONLY ABOUT THE REASONABLENESS OF THE
NEGOTIATED PROVISION BUT ALSO ITS LEGALITY IN VIEW OF THE LANGUAGE IN 31
U.S.C. 628" CONCERNING THE EXPENDITURE OF APPROPRIATED FUNDS. /1/
BECAUSE THE DEPARTMENT OF THE ARMY (ARMY) QUESTIONED BOTH THE PROPRIETY
AND THE LEGALITY OF THE AGREEMENT PROVISION IN THE LIGHT OF CERTAIN
PROVISIONS OF EXECUTIVE ORDER 11491 AND ITS PREDECESSOR, EXECUTIVE ORDER
10988, YOU REQUESTED A COUNCIL STATEMENT IN ORDER TO ASSIST YOU IN YOUR
CONSIDERATION OF THE MATTER. PURSUANT TO SECTION 4(B) OF EXECUTIVE
ORDER 11491, AS AMENDED, AND PART 2410 OF THE COUNCIL'S RULES AND
REGULATIONS (5 CFR 2410), THE COUNCIL HAS CONSIDERED THE MATTER.
BECAUSE DETERMINATIONS AS TO THE GRANTING OF LEAVE WITHOUT PAY APPEAR
TO BE SOLELY WITHIN THE DISCRETION OF THE AGENCY CONCERNED, /2/ THE
COUNCIL HAS LIMITED ITS CONSIDERATION OF THE MATTER TO THAT PORTION OF
THE AGREEMENT PROVISION WHICH PROVIDES FOR THE STATE UNION
REPRESENTATIVE TO BE ADMINISTRATIVELY EXCUSED FOR HALF OF EACH DAY OF
THE SCHOOL YEAR TO ACCOMPLISH LABOR-MANAGEMENT RELATED ACTIVITIES.
FOLLOWING RECEIPT OF YOUR REQUEST THE COUNCIL, IN ACCORDANCE WITH
SECTION 2410.6 OF ITS RULES OF PROCEDURE (5 CFR 2410.6), SOLICITED THE
VIEWS OF THE PARTIES TO THE AGREEMENT. THE DEPARTMENT OF DEFENSE (DOD),
IN ITS RESPONSE, POINTED OUT THAT WHEN ARMY REVIEWED THE OFT-USDESEA
AGREEMENT AND REACHED A TENTATIVE CONCLUSION THAT THE PROVISION IN
QUESTION COULD NOT BE APPROVED UNDER SECTION 15 OF THE ORDER, THE MATTER
WAS REFERRED BY ARMY TO DOD FOR AN AGENCY HEAD DETERMINATION PURSUANT TO
SECTION 11(C)(2) /3/ OF THE ORDER AND APPLICABLE DOD REGULATIONS. ON
NOVEMBER 20, 1974, DOD MADE A NEGOTIABILITY DETERMINATION THAT THERE WAS
NO CONFLICT BETWEEN THE NEGOTIATED PROVISION AND THE ORDER OR OTHER LAW,
PUBLISHED POLICY OR REGULATION, AND THAT THERE WAS THEREFORE NO BASIS
FOR DISAPPROVING THE AGREEMENT UNDER SECTION 15 OF THE ORDER. /4/ IN
THIS REGARD DOD NOTES THAT THE SUBMISSION LETTER FROM THE ACTING
ASSISTANT SECRETARY EXPRESSED DOUBTS NOT ONLY ABOUT THE LEGALITY OF THE
AGREEMENT PROVISION BUT ALSO ABOUT ITS REASONABLENESS. DOD POINTS OUT
THAT ITS NEGOTIABILITY DETERMINATION WAS CONFINED TO THE QUESTION OF
WHETHER THERE WAS A CONFLICT BETWEEN THE PROVISION AND LAW OR REGULATION
AND THAT SUCH DETERMINATION WAS NOT BASED ON AN EVALUATION OF THE MERITS
OF THE PROVISION. THE DETERMINATION OF THE "REASONABLENESS" OF THE
PROVISION, A DETERMINATION NOT REVIEWABLE UNDER SECTION 15 OF THE ORDER,
WAS MADE BY USDESEA MANAGEMENT ON THE BASIS OF INFORMATION AND
CONSIDERATIONS WHICH IT BELIEVED PERTINENT AT THE TIME IT AGREED TO THE
PROVISION AT THE BARGAINING TABLE.
FURTHER, DOD NOTES THAT THE SUBMISSION LETTER FROM THE ACTING
ASSISTANT SECRETARY USES THE GENERAL TERM "UNION BUSINESS" TO DESCRIBE
THE ACTIVITIES OF THE OFT OFFICIAL TO WHOM THE AGREEMENT PROVISION
APPLIES. DOD POINTS OUT THAT IT IS ESSENTIAL TO DISTINGUISH BETWEEN
THOSE TYPES OF ACTIVITIES FOR WHICH OFFICIAL TIME IS PROHIBITED. IN THE
FIRST CATEGORY ARE ACTIVITIES HAVING TO DO WITH THE LABOR-MANAGEMENT
RELATIONSHIP IN WHICH THE GOVERNMENT AND THE UNION SHARE AN INTEREST.
IN THE SECOND CATEGORY ARE SUCH ACTIVITIES AS THE SOLICITATION OF UNION
MEMBERSHIP OR DUES, CAMPAIGNING FOR UNION OFFICE, CONDUCT OF OTHER
"INTERNAL BUSINESS" OF A UNION, WHICH ARE PROHIBITED BY SECTION 20 OF
THE ORDER, AND PARTICIPATION IN NEGOTIATIONS ON OFFICIAL TIME BEYOND THE
AMOUNT PERMITTED UNDER SECTION 20 OF THE ORDER. DOD STATES THAT THE
ADMINISTRATIVE EXCUSAL PROVIDED FOR IN THE DISPUTED OFT-USDESEA
AGREEMENT CLAUSE IS INTENDED TO COVER ONLY THE FIRST TYPE OF ACTIVITIES,
THOSE INVOLVING LABOR-MANAGEMENT MATTERS, AND NOT THOSE ACTIVITIES WHICH
FALL UNDER THE HEADING OF UNION "INTERNAL BUSINESS."
THE POSITION OF DOD REGARDING THE TYPES OF ACTIVITIES WHICH THE
AGREEMENT CLAUSE WAS INTENDED TO COVER IS SUPPORTED BY OFT IN ITS
RESPONSE TO THE COUNCIL. OFT STATES THAT THE DETAILS CONCERNING THE USE
OF OFFICIAL TIME BY THE STATE UNION REPRESENTATIVE UNDER THE AGREEMENT
PROVISION IN QUESTION WERE SET OUT IN A SEPARATE MEMORANDUM OF
UNDERSTANDING. OFT QUOTES THE FIRST SECTION OF THAT MEMORANDUM OF
UNDERSTANDING AS FOLLOWS:
1. NECESSARY DUTY TIME AS SPECIFIED IN THIS AGREEMENT WILL BE
PERMITTED THE STATE UNION
REPRESENTATIVE FOR PERFORMANCE OF SUCH DUTIES AS:
A. DISCUSSING GRIEVANCES, APPEALS OR DISCRIMINATION COMPLAINTS WITH
EMPLOYEES;
B. PREPARING (INCLUDING MAKING INQUIRIES) AND PRESENTING
IDENTIFIABLE GRIEVANCES, APPEALS,
OR DISCRIMINATION COMPLAINTS;
C. ATTENDING MEETINGS WITH SUPERVISORS AND OTHER MANAGEMENT
OFFICIALS
D. CONSIDERING AND PREPARING RESPONSES TO PROPOSED EMPLOYER
DIRECTIVES WHEN THE UNION HAS
BEEN SPECIFICALLY REQUESTED TO DO SO BY THE EMPLOYER.
OFT STATES THAT THE CLEAR INTENT UNDER THE MEMORANDUM OF
UNDERSTANDING WAS THAT THE UNION REPRESENTATIVE WOULD BE CARRYING OUT
THE PRECEPTS STATED IN THE PREAMBLE TO THE ORDER. OFT FURTHER STATES
THAT A NUMBER OF IMPORTANT CONSIDERATIONS WERE INVOLVED IN NEGOTIATING
THE PROVISION, INCLUDING THE DISPERSAL AND EXTENT OF THE BARGAINING UNIT
WHICH EXTENDS FROM THE PERSIAN GULF TO GREAT BRITAIN AND FROM SOUTHERN
ITALY TO THE NORTH SEA, OVER TWO AND ONE-HALF TIMES THE LAND AREA OF THE
UNITED STATES. ALSO CONSIDERED WAS THE FACT THAT ALL THREE MILITARY
SERVICES ARE INVOLVED IN DAY-TO-DAY DEALINGS IN THE UNIT. ALMOST 1000
TEACHERS WHOSE DUTIES RANGE FROM KINDERGARTEN TO A TWELFTH GRADE
CURRICULUM ARE IN THE UNIT AND IT INCLUDES FROM THREE TO SIX LEVELS OF
ADMINISTRATIVE CONTROL.
IN ADDITION OFT POINTS OUT THAT CONCERNS WERE EXPRESSED AT THE OUTSET
OF NEGOTIATIONS OVER THE PROVISION THAT IT WOULD BE USED TO ASSIST THE
UNION IN CONDUCTING INTERNAL UNION BUSINESS. HOWEVER, DURING THE
NEGOTIATIONS IT WAS AGREED THAT ONLY ACTIVITIES THAT NORMALLY ARE
CONDUCTED ON OFFICIAL TIME, I.E., REPRESENTATION, CONSULTATION, THIRD
PARTY PROCEEDINGS, RESPONSES TO MANAGEMENT DIRECTIVES AND REQUESTS,
ETC., WOULD BE CONDUCTED DURING OFFICIAL TIME AND THAT INTERNAL UNION
BUSINESS, IF ANY, WOULD BE CONDUCTED AT OTHER TIMES.
THE COUNCIL HAS CAREFULLY CONSIDERED THE MATTER AND HAS CONCLUDED
THAT THE ISSUE PRESENTED HAS GENERAL APPLICABILITY TO THE OVERALL
LABOR-MANAGEMENT RELATIONS PROGRAM IN THE FEDERAL SERVICE AND OTHERWISE
MEETS THE REQUIREMENTS OF SEC. 2410.3 OF THE COUNCIL'S RULES (5 CFR
2410.3). WITH RESPECT TO THE ISSUE PRESENTED, THE COUNCIL HAS
DETERMINED THAT NOTHING IN THE ORDER PROHIBITS AN AGENCY AND A LABOR
ORGANIZATION FROM NEGOTIATING PROVISIONS, SUCH AS IN THIS CASE, WHICH
PROVIDE FOR OFFICIAL TIME FOR UNION REPRESENTATIVES TO ENGAGE IN
CONTRACT ADMINISTRATION AND OTHER REPRESENTATIONAL ACTIVITIES WHICH ARE
OF MUTUAL INTEREST TO BOTH THE AGENCY AND THE LABOR ORGANIZATION AND
WHICH RELATE TO THE LABOR-MANAGEMENT RELATIONSHIP AND NOT TO "INTERNAL"
UNION BUSINESS. EXAMPLES OF SUCH REPRESENTATIONAL AND CONTRACT
ADMINISTRATION ACTIVITIES INCLUDE THE INVESTIGATION AND ATTEMPTED
INFORMAL RESOLUTION OF EMPLOYEE GRIEVANCES, PARTICIPATION IN FORMAL
GRIEVANCE RESOLUTION PROCEDURES, ATTENDING OR PREPARING FOR MEETINGS OF
COMMITTEES ON WHICH BOTH THE UNION AND MANAGEMENT ARE REPRESENTED AND
DISCUSSING PROBLEMS IN AGREEMENT ADMINISTRATION WITH MANAGEMENT
OFFICIALS.
THE ONLY PROVISION OF THE ORDER DEALING SPECIFICALLY WITH THE USE OF
OFFICIAL TIME IS SECTION 20, WHICH PROVIDES AS FOLLOWS:
SOLICITATION OF MEMBERSHIP OR DUES, AND OTHER INTERNAL BUSINESS OF A
LABOR ORGANIZATION,
SHALL BE CONDUCTED DURING THE NON-DUTY HOURS OF THE EMPLOYEES
CONCERNED. EMPLOYEES WHO
REPRESENT A RECOGNIZED LABOR ORGANIZATION SHALL NOT BE ON OFFICIAL
TIME WHEN NEGOTIATING AN
AGREEMENT WITH AGENCY MANAGEMENT, EXCEPT TO THE EXTENT THAT THE
NEGOTIATING PARTIES AGREE TO
OTHER ARRANGEMENTS WHICH MAY PROVIDE THAT THE AGENCY WILL EITHER
AUTHORIZE OFFICIAL TIME FOR
UP TO 40 HOURS OR AUTHORIZE UP TO ONE-HALF THE TIME SPENT IN
NEGOTIATIONS DURING REGULAR
WORKING HOURS, FOR A REASONABLE NUMBER OF EMPLOYEES, WHICH NUMBER
NORMALLY SHALL NOT EXCEED
THE NUMBER OF MANAGEMENT REPRESENTATIVES.
IN INTERPRETING THAT SECTION OF THE ORDER IN TERMS OF THE AGREEMENT
PROVISION AT ISSUE IN THIS CASE, IT IS SIGNIFICANT TO NOTE THAT THE
RESTRICTIONS CONTAINED IN SECTION 20 ARE SPECIFIC RATHER THAN
ALL-INCLUSIVE. THE FIRST PART OF SECTION 20 PROHIBITS THE SOLICITATION
OF MEMBERSHIP OR DUES AND THE CONDUCT OF "OTHER INTERNAL BUSINESS" OF A
LABOR ORGANIZATION WHILE ON OFFICIAL TIME. IT IS EVIDENT FROM THE
WORDING OF THIS PART THAT THE PROHIBITIONS CONTAINED THEREIN CONCERNING
THE USE OF OFFICIAL TIME FOR INTERNAL UNION BUSINESS ARE DIRECTED
TOWARDS RESTRICTING TO NONDUTY HOURS ACTIVITIES WHICH ARE OF PRIMARY
CONCERN AND BENEFIT ONLY TO THE LABOR ORGANIZATION. THE SECOND PART OF
SECTION 20 PROHIBITS EMPLOYEES WHO REPRESENT A LABOR ORGANIZATION FROM
BEING ON OFFICIAL TIME WHEN NEGOTIATING AN AGREEMENT, EXCEPT TO THE
EXTENT THAT THE NEGOTIATING PARTIES AGREE OTHERWISE WITHIN CERTAIN
SPECIFIED LIMITS. BUT WHILE THESE TYPES OF ACTIVITIES ARE RESTRICTED
UNDER SECTION 20, THERE IS NOTHING IN THAT SECTION OR ELSEWHERE IN THE
ORDER WHICH PROHIBITS THE USE OF OFFICIAL TIME, WHEN THE AGENCY AGREES,
BY UNION REPRESENTATIVES IN CERTAIN OTHER INSTANCES. /5/
THE ACTIVITIES OF THE STATE UNION REPRESENTATIVE UNDER THE AGREEMENT
PROVISION IN THIS CASE, SUCH AS THE INVESTIGATION AND ATTEMPTED INFORMAL
RESOLUTION OF EMPLOYEE GRIEVANCES, PARTICIPATION IN FORMAL GRIEVANCE
DISCUSSIONS OR THIRD-PARTY PROCEEDINGS, ATTENDING OR PREPARING FOR
MEETINGS OF COMMITTEES ON WHICH THE UNION IS REPRESENTED AND DISCUSSING
PROBLEMS IN AGREEMENT ADMINISTRATION WITH MANAGEMENT OFFICIALS, ARE NOT
MATTERS OF "INTERNAL" UNION BUSINESS, BUT INSTEAD ARE MATTERS RELATING
PRIMARILY TO CONTRACT ADMINISTRATION AND ARE ACTIVITIES WHICH ARE OF
MUTUAL CONCERN TO BOTH THE UNION AND THE AGENCY AND WHICH GO TO THE
HEART OF THE LABOR-MANAGEMENT RELATIONSHIP. /6/ ACCORDINGLY, WE FIND
THAT THESE TYPES OF ACTIVITIES DO NOT FALL WITHIN THE SCOPE OF SECTION
20 AND THE SPECIFIC PROHIBITIONS THEREIN.
MOREOVER, AN AGREEMENT BY AN AGENCY TO ALLOW AN EMPLOYEE TO PERFORM,
ON OFFICIAL TIME, THE TYPES OF REPRESENTATIONAL ACTIVITIES AGREED TO IN
THIS CASE, WHEN THE AGENCY DETERMINES THAT SUCH ACTIVITIES ARE RELATED
TO THE PERFORMANCE OF UNION-MANAGEMENT FUNCTIONS CONTRIBUTING TO THE
EFFICIENT ADMINISTRATION OF THE AGENCY, WOULD APPEAR TO BE CONSISTENT
WITH THE PURPOSES OF THE ORDER. IN THIS REGARD IT IS NOTED THAT THE
PREAMBLE TO THE ORDER SETS FORTH CERTAIN STATED PURPOSES AS FOLLOWS:
WHEREAS THE WELL-BEING OF EMPLOYEES AND EFFICIENT ADMINISTRATION OF
THE GOVERNMENT ARE
BENEFITED BY PROVIDING EMPLOYEES AN OPPORTUNITY TO PARTICIPATE IN THE
FORMULATION AND
IMPLEMENTATION OF PERSONNEL POLICIES AND PRACTICES AFFECTING THE
CONDITIONS OF THEIR
EMPLOYMENT; AND
WHEREAS THE PARTICIPATION OF EMPLOYEES SHOULD BE IMPROVED THROUGH THE
MAINTENANCE OF
CONSTRUCTIVE AND COOPERATIVE RELATIONSHIPS BETWEEN LABOR
ORGANIZATIONS AND MANAGEMENT
OFFICIALS; . . .
THE MAINTENANCE OF A CONSTRUCTIVE AND COOPERATIVE RELATIONSHIP
BETWEEN LABOR ORGANIZATIONS AND MANAGEMENT OFFICIALS INVOLVES MORE THAN
THE SUCCESSFUL NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT BECAUSE
THE LABOR-MANAGEMENT RELATIONSHIP DOES NOT END WITH THE NEGOTIATION
PROCESS. FOLLOWING THE NEGOTIATION OF AN AGREEMENT, THE PARTIES MUST
DIRECT THEIR EFFORTS TOWARD SATISFACTORILY ADMINISTERING THAT AGREEMENT.
IT IS THE COUNCIL'S OPINION THAT, WHERE THE AGENCY AND THE UNION HAVE
AGREED, THE GRANTING OF OFFICIAL TIME FOR CONTRACT ADMINISTRATION
PURPOSES, SUCH AS THOSE SET FORTH IN THE ABOVE-MENTIONED MEMORANDUM OF
UNDERSTANDING BETWEEN OFT AND USDESEA, IS OF BENEFIT TO BOTH THE AGENCY
AND THE LABOR ORGANIZATION AND IS IN KEEPING WITH THE STATED PURPOSES OF
THE ORDER.
HOWEVER, WHILE NOTHING IN THE ORDER PROHIBITS AN AGENCY FROM
NEGOTIATING A PROVISION SUCH AS AT ISSUE IN THIS CASE, AT THE SAME TIME
NOTHING IN THE ORDER REQUIRES AN AGENCY TO AGREE TO SUCH A PROVISION.
BUT WHERE THE AGENCY AND THE UNION RECOGNIZE THAT, WHEN CIRCUMSTANCES
WARRANT, A RESPONSIVE AND PROGRESSIVE LABOR-MANAGEMENT RELATIONS PROGRAM
BENEFICIAL TO ALL PARTIES CONCERNED COULD BEST BE ADMINISTERED THROUGH
THE GRANTING OF OFFICIAL TIME FOR CONTRACT ADMINISTRATION PURPOSES AND
THEREAFTER AGREE TO SUCH A GRANT, THAT AGREEMENT PROMOTES THE PURPOSES
OF THE ORDER. /7/ FURTHER, IT IS NOTED THAT SUCH AGREEMENTS ARE NOT AT
ALL UNCOMMON IN THE FEDERAL SECTOR. A STUDY OF AGREEMENTS THROUGHOUT
THE FEDERAL SECTOR PUBLISHED IN AUGUST 1974 BY THE CIVIL SERVICE
COMMISSION'S OFFICE OF LABOR-MANAGEMENT RELATIONS, USING ITS LABOR
AGREEMENT INFORMATION RETRIEVAL SYSTEM (LAIRS), SHOWED THAT A VARIETY OF
OFFICIAL TIME CLAUSES HAD BEEN NEGOTIATED BETWEEN AGENCIES AND LABOR
ORGANIZATIONS PROVIDING FOR A RANGE OF FROM LESS THAN ONE HOUR PER WEEK
TO AS MUCH AS THREE-FOURTHS OF THE EMPLOYEE'S WORKWEEK ON OFFICIAL TIME.
THESE CLAUSES, WHICH AT THE TIME OF THE STUDY WERE IN OVER 450
AGREEMENTS INVOLVING 11 DIFFERENT AGENCIES, PROVIDED FOR OFFICIAL TIME
TO PERFORM A VARIETY OF FUNCTIONS INCLUDING MANY IDENTICAL TO THOSE
PROVIDED FOR UNDER THE OFT-USDESEA AGREEMENT. THEREFORE SUCH A
PROVISION, SO FAR AS IT PERTAINS TO THE USE OF OFFICIAL TIME FOR
CONTRACT ADMINISTRATION PURPOSES, WOULD NOT, AS SUGGESTED IN THE
SUBMISSION LETTER FROM THE ACTING ASSISTANT SECRETARY OF THE ARMY,
"ESTABLISH NEGOTIATION PRECEDENT FOR HUNDREDS OF GOVERNMENT EMPLOYEES
WHO ARE UNION REPRESENTATIVES," BUT INSTEAD WOULD BE CONCORDANT WITH
SIMILAR PROVISIONS OF WIDE APPLICATION CURRENTLY THROUGHOUT THE FEDERAL
SECTOR.
WE HOPE THE FOREGOING WILL BE OF BENEFIT TO YOU IN YOUR CONSIDERATION
OF THIS MATTER.
BY THE COUNCIL.
CC: W. VALDES, DOD
O. THOMAS, OFT
E. J. LEHMANN
VERONA ELEMENTARY SCHOOL
/1/ 31 U.S.C. 628 PROVIDES:
EXCEPT AS OTHERWISE PROVIDED BY LAW, SUMS APPROPRIATED FOR THE
VARIOUS BRANCHES OF
EXPENDITURE IN THE PUBLIC SERVICE SHALL BE APPLIED SOLELY TO THE
OBJECTS FOR WHICH THEY ARE
RESPECTIVELY MADE, AND FOR NO OTHERS.
/2/ SECTION 12-2A OF SUBCHAPTER 12 OF CHAPTER 630 OF THE FEDERAL
PERSONNEL MANUAL PROVIDES, IN PART:
THE AUTHORIZATION OF LEAVE WITHOUT PAY IS A MATTER OF ADMINISTRATIVE
DISCRETION.
SECTION 12-3A OF SUBCHAPTER 12 PROVIDES:
THERE IS NO MAXIMUM PRESCRIBED BY LAW OR GENERAL REGULATION ON THE
AMOUNT OF LEAVE WITHOUT
PAY WHICH CAN BE GRANTED.
/3/ SECTION 11(C)(2) OF THE ORDER PROVIDES:
(C) IF, IN CONNECTION WITH NEGOTIATIONS, AN ISSUE DEVELOPS AS TO
WHETHER A PROPOSAL IS
CONTRARY TO LAW, REGULATION, CONTROLLING AGREEMENT, OR THIS ORDER AND
THEREFORE NOT
NEGOTIABLE, IT SHALL BE RESOLVED AS FOLLOWS:
(2) AN ISSUE OTHER THAN AS DESCRIBED IN SUBPARAGRAPH (1) OF THIS
PARAGRAPH WHICH ARISES AT
A LOCAL LEVEL MAY BE REFERRED BY EITHER PARTY TO THE HEAD OF THE
AGENCY FOR DETERMINATION;
/4/ SECTION 15 OF THE ORDER PROVIDES:
AN AGREEMENT WITH A LABOR ORGANIZATION AS THE EXCLUSIVE
REPRESENTATIVE OF EMPLOYEES IN A
UNIT IS SUBJECT TO THE APPROVAL OF THE HEAD OF THE AGENCY OR AN
OFFICIAL DESIGNATED BY
HIM. AN AGREEMENT SHALL BE APPROVED IF IT CONFORMS TO APPLICABLE
LAWS, EXISTING PUBLISHED
AGENCY POLICIES AND REGULATIONS (UNLESS THE AGENCY HAS GRANTED AN
EXCEPTION TO A POLICY OR
REGULATION) AND REGULATIONS OF OTHER APPROPRIATE AUTHORITIES. A
LOCAL AGREEMENT SUBJECT TO A
NATIONAL OR OTHER CONTROLLING AGREEMENT AT A HIGHER LEVEL SHALL BE
APPROVED UNDER THE
PROCEDURES OF THE CONTROLLING AGREEMENT, OR, IF NONE, UNDER AGENCY
REGULATIONS.
/5/ THIS INTERPRETATION OF SECTION 20 IS CONSISTENT WITH THE
STATUTORY CONSTRUCTION MAXIM EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS.
THAT MAXIM HOLDS THAT AS A GENERAL RULE THE MENTION OF ONE THING IMPLIES
THE EXCLUSION OF ANOTHER. THUS, THE USE OF THE QUALIFYING WORDS
"SOLICITATION OF MEMBERSHIP OR DUES" IN CONNECTION WITH "AND OTHER
INTERNAL BUSINESS" IMPLIES AN INTENT TO LIMIT THE PROHIBITION IN SECTION
20 ONLY TO MATTERS RELATING SOLELY TO THE UNION AND NOT TO ALL MATTERS
IN WHICH A UNION REPRESENTATIVE MIGHT PARTICIPATE.
/6/ IT IS NOTED THAT THESE TYPES OF REPRESENTATIONAL ACTIVITIES ARE
SOMEWHAT ANALOGOUS TO THOSE PERFORMED BY EMPLOYEES WHO REPRESENT FELLOW
EMPLOYEES IN PRESENTING A GRIEVANCE UNDER AN AGENCY GRIEVANCE SYSTEM OR
AN APPEAL UNDER AN AGENCY APPEALS SYSTEM OR IN PROCESSING EQUAL
EMPLOYMENT OPPORTUNITY COMPLAINTS, ACTIVITIES FOR WHICH THE USE OF
OFFICIAL TIME HAS BEEN RECOGNIZED AS PROPER. IN THIS REGARD, SECTION
771.105(B)(2) OF TITLE 5, CODE OF FEDERAL REGULATIONS (CFR), PROVIDES,
CONCERNING THE PRESENTATION OF A GRIEVANCE:
WHEN AN EMPLOYEE DESIGNATES ANOTHER EMPLOYEE OF THE AGENCY AS HIS
REPRESENTATIVE, THE
REPRESENTATIVE, IN PRESENTING A GRIEVANCE UNDER AN AGENCY GRIEVANCE
SYSTEM, SHALL: BE ASSURED
A REASONABLE AMOUNT OF OFFICIAL TIME IF HE IS OTHERWISE IN AN ACTIVE
DUTY STATUS.
PRIOR TO THE RECENT ABOLITION OF THE AGENCY ADVERSE ACTION APPEALS
SYSTEM AND REORGANIZATION OF THE CIVIL SERVICE COMMISSION'S APPELLATE
ORGANIZATION, SECTION 771.206 OF 5 CFR PROVIDED, CONCERNING THE USE OF
OFFICIAL TIME TO PREPARE AN ADMINISTRATIVE APPEAL FROM AN ADVERSE
ACTION:
AN EMPLOYEE IS ENTITLED TO A REASONABLE AMOUNT OF OFFICIAL TIME TO
PREPARE HIS APPEAL IF HE
IS OTHERWISE IN AN ACTIVE DUTY STATUS. IF THE EMPLOYEE'S
REPRESENTATIVE IS AN EMPLOYEE OF THE
AGENCY, HE IS ALSO ENTITLED TO A REASONABLE AMOUNT OF OFFICIAL TIME
TO PREPARE THE APPEAL IF
HE IS OTHERWISE IN AN ACTIVE DUTY STATUS.
CURRENTLY, SECTION 713.214(B) OF 5 CFR PROVIDES, CONCERNING THE
PROCESSING OF EQUAL EMPLOYMENT OPPORTUNITY COMPLAINTS:
AT ANY STAGE IN THE PRESENTATION OF A COMPLAINT, INCLUDING THE
COUNSELING STAGE . . . THE
COMPLAINANT SHALL HAVE THE RIGHT TO BE ACCOMPANIED, REPRESENTED, AND
ADVISED BY A
REPRESENTATIVE OF HIS OWN CHOOSING. IF THE COMPLAINANT IS AN
EMPLOYEE OF THE AGENCY, HE SHALL
HAVE A REASONABLE AMOUNT OF OFFICIAL TIME TO PRESENT HIS COMPLAINT IF
HE IS OTHERWISE IN AN
ACTIVE DUTY STATUS. IF THE COMPLAINANT IS AN EMPLOYEE OF THE AGENCY
AND HE DESIGNATES ANOTHER
EMPLOYEE OF THE AGENCY AS HIS REPRESENTATIVE, THE REPRESENTATIVE
SHALL HAVE A REASONABLE
AMOUNT OF OFFICIAL TIME, IF HE IS OTHERWISE IN AN ACTIVE DUTY STATUS,
TO PRESENT THE
COMPLAINT.
/7/ AS PREVIOUSLY POINTED OUT, DOD NOTES THAT THE SUBMISSION LETTER
FROM THE ACTING ASSISTANT SECRETARY EXPRESSED DOUBTS NOT ONLY ABOUT THE
LEGALITY OF THE AGREEMENT PROVISION BUT ALSO ABOUT ITS REASONABLENESS.
WE AGREE WITH DOD THAT ONLY THE LEGALITY OF THE AGREEMENT PROVISION IS
PROPERLY AT ISSUE WITHIN DOD AND ARMY AT THIS POINT. FURTHER, WHILE THE
COUNCIL HAS OFTEN PASSED UPON THE LEGALITY OF A BARGAINING PROPOSAL, IT
HAS SPECIFICALLY INDICATED THAT ANY DECISION THAT A PROPOSAL IS
NEGOTIABLE SHOULD NOT BE CONSTRUED AS EXPRESSING OR IMPLYING ANY OPINION
AS TO THE MERITS OF THE PROPOSAL.
THE REASONABLENESS OF THE PROVISION IN THIS CASE WAS DETERMINED BY
THE REPRESENTATIVES OF AGENCY MANAGEMENT AT THE BARGAINING TABLE DURING
THE COURSE OF NEGOTIATIONS. UNDER SECTION 15 OF THE ORDER, AN AGREEMENT
WITH A LABOR ORGANIZATION IS SUBJECT TO THE APPROVAL OF THE HEAD OF THE
AGENCY OR AN OFFICIAL DESIGNATED BY HIM. HOWEVER, SECTION 15 FURTHER
PROVIDES THAT AN AGREEMENT SHALL BE APPROVED IF IT CONFORMS TO
APPLICABLE LAWS, EXISTING PUBLISHED AGENCY POLICIES AND REGULATIONS AND
REGULATIONS OF OTHER APPROPRIATE AUTHORITIES. BY LIMITING APPROVAL OR
DISAPPROVAL SOLELY TO THE BASIS OF WHETHER THE AGREEMENT CONFORMS WITH
LAWS, POLICIES AND REGULATIONS, RATHER THAN TO THE REASONABLENESS OF THE
AGREEMENT, OR SPECIFIC PROVISIONS THEREOF, THERE IS A RECOGNITION THAT
AGENCY MANAGEMENT AT THE LEVEL OF THE EXCLUSIVE RECOGNITION HAS THE BEST
KNOWLEDGE OF PREVAILING CONDITIONS AND CAN THUS BEST JUDGE THE
"REASONABLENESS" OF THE NEGOTIATED PROVISION. THE RECORD BEFORE THE
COUNCIL INDICATES THAT THE DECISION BY USDESEA TO AGREE TO THE PROVISION
WAS BASED ON CONSIDERATIONS AS TO THE COMPLEXITIES INVOLVED IN
PERFORMING REPRESENTATIONAL ACTIVITIES WITH RESPECT TO THE BARGAINING
UNIT IN THIS CASE AND IN PART ON CALCULATIONS THAT THE AMOUNT OF
OFFICIAL TIME SPECIFIED IN THE AGREEMENT FOR THE STATE UNION
REPRESENTATIVE WOULD BE EFFECTIVE IN HOLDING TO A MINIMUM THE USE OF
OFFICIAL TIME AND RESULTANT ABSENCE FROM THE CLASSROOM ON THE PART OF
OTHER OFT REPRESENTATIVES DURING THE TERM OF THE AGREEMENT.
NEGOTIATIONS IN THE FEDERAL SECTOR ARE CONDUCTED BY AGENCY
REPRESENTATIVES UNDER GUIDANCE ISSUED BY HIGHER AGENCY HEADQUARTERS AS
WELL AS UNDER POLICY GUIDANCE PROVIDED BY THE CIVIL SERVICE COMMISSION,
IN CONJUNCTION WITH THE OFFICE OF MANAGEMENT AND BUDGET, PURSUANT TO
SECTION 25 OF THE ORDER. TO SUBJECT SUCH NEGOTIATIONS TO A SUBSEQUENT,
UNILATERAL MODIFICATION OF A BILATERALLY ARRIVED AT AGREEMENT ON THE
BASIS OF A QUESTION AS TO THE REASONABLENESS OF THE NEGOTIATED
PROVISION, WOULD IN THE COUNCIL'S VIEW BE CONTRARY TO THE FUNDAMENTAL
CONCEPTS OF COLLECTIVE BARGAINING AND WOULD CONSTITUTE UNDUE
INTERFERENCE WITH THE CONDUCT OF LABOR-MANAGEMENT RELATIONS.
3 FLRC 867; FLRC NO. 73P-1; MARCH 3, 1975.
MR. WILLIAM M. RUSSELL
DEPUTY ASSISTANT SECRETARY
FOR PERSONNEL AND TRAINING
DEPARTMENT OF HEALTH, EDUCATION,
AND WELFARE
330 INDEPENDENCE AVENUE, SW.
WASHINGTON, D.C. 20201
MR. ARCH S. RAMSAY
DIRECTOR OF PERSONNEL
DEPARTMENT OF THE TREASURY
15TH AND PENNSYLVANIA AVENUE, NW.
WASHINGTON, D.C. 20220
MR. S. B. PRANGER
DIRECTOR OF PERSONNEL
OFFICE OF THE SECRETARY
DEPARTMENT OF AGRICULTURE
WASHINGTON, D.C. 20250
(SYNOPSIS) FLRC NO. 73P-1
SEVERAL AGENCIES JOINTLY ASKED THE COUNCIL TO ISSUE A POLICY
STATEMENT TO RESOLVE A QUESTION AS TO WHETHER EXECUTIVE ORDER 11491, AS
AMENDED, ALLOWS THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT
RELATIONS TO HEAR AND RULE ON NEGOTIABILITY DISPUTES IN THE CONTEXT OF
UNFAIR LABOR PRACTICE PROCEEDINGS. THE COUNCIL DETERMINED THAT THE
ISSUE RAISED BY THEIR REQUEST HAD GENERAL APPLICATION TO THE FEDERAL
LABOR-MANAGEMENT RELATIONS PROGRAM AND INCLUDED IT AMONG THOSE TO BE
CONSIDERED IN THE RECENT GENERAL REVIEW OF THE PROGRAM. THUS, THE
COUNCIL ANNOUNCEMENT DATED DECEMBER 18, 1973, WHICH LISTED THE AREAS TO
BE FOCUSED UPON DURING THE REVIEW, INCLUDED THE FOLLOWING ISSUE:
"SHOULD THE ASSISTANT SECRETARY OF LABOR HEAR AND RULE ON
NEGOTIABILITY DISPUTES THAT ARISE
IN THE CONTEXT OF UNFAIR LABOR PRACTICE PROCEEDINGS UNDER THE ORDER?"
AS A RESULT OF THE REVIEW, THE COUNCIL RECOMMENDED THAT: "SECTIONS
6(A) AND 11 SHOULD BE AMENDED TO ASSIGN TO THE ASSISTANT SECRETARY
EXPRESS AUTHORITY TO RESOLVE THOSE NEGOTIABILITY ISSUES WHICH HAVE
ARISEN NOT IN CONNECTION WITH NEGOTIATIONS, BUT RATHER IN THE CONTEXT OF
UNFAIR LABOR PRACTICE PROCEEDINGS RESULTING FROM UNILATERAL CHANGES IN
ESTABLISHED PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING
WORKING CONDITIONS. IN ADDITION, SECTIONS 4(C) AND 11 SHOULD BE AMENDED
TO PERMIT A PARTY ADVERSELY AFFECTED BY SUCH A DETERMINATION TO EXERCISE
A RIGHT TO HAVE THE NEGOTIABILITY DETERMINATION REVIEWED ON APPEAL BY
THE COUNCIL." THE PRESIDENT SUBSEQUENTLY APPROVED AMENDMENTS TO THE
ORDER WHICH, IN PERTINENT PART, ADDED PARAGRAPH (D) TO SECTION 11. /1/
IT PROVIDES THAT,
"IF, AS THE RESULT OF AN ALLEGED UNILATERAL CHANGE IN, OR ADDITION
TO, PERSONNEL POLICIES
AND PRACTICES OR MATTERS AFFECTING WORKING CONDITIONS, THE ACTING
PARTY IS CHARGED WITH A
REFUSAL TO CONSULT, CONFER OR NEGOTIATE AS REQUIRED UNDER THIS ORDER,
THE ASSISTANT SECRETARY
MAY, IN THE EXERCISE OF HIS AUTHORITY UNDER SECTION 6(A)(4) OF THE
ORDER, MAKE THOSE
DETERMINATIONS OF NEGOTIABILITY AS MAY BE NECESSARY TO RESOLVE THE
MERITS OF THE ALLEGED
UNFAIR LABOR PRACTICE. IN SUCH CASES THE PARTY SUBJECT TO AN ADVERSE
RULING MAY APPEAL THE
ASSISTANT SECRETARY'S NEGOTIABILITY DETERMINATION TO THE COUNCIL."
THEREFORE, THE COUNCIL, BY REASON OF AND TO THE EXTENT OF THE
AMENDMENTS TO THE ORDER DESCRIBED ABOVE, DETERMINED THAT THE ASSISTANT
SECRETARY OF LABOR DOES HAVE AUTHORITY TO HEAR AND RULE ON NEGOTIABILITY
DISPUTES IN THE CONTEXT OF UNFAIR LABOR PRACTICE PROCEEDINGS.
GENTLEMEN:
THIS IS IN FURTHER REPLY TO YOUR LETTER OF MARCH 14, 1973, REQUESTING
THE COUNCIL TO ISSUE A POLICY STATEMENT CONCERNING WHETHER EXECUTIVE
ORDER 11491, AS AMENDED, ALLOWS THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS TO HEAR AND RULE ON NEGOTIABILITY DISPUTES IN
THE UNFAIR LABOR PRACTICE PROCEEDINGS BEFORE HIM.
THE COUNCIL DETERMINED THAT THE ISSUE RAISED IN YOUR REQUEST HAD
GENERAL APPLICATION TO THE FEDERAL LABOR-MANAGEMENT RELATIONS PROGRAM.
THE ISSUE WAS INCLUDED IN THE COUNCIL'S RECENT GENERAL REVIEW OF THE
LABOR-MANAGEMENT RELATIONS PROGRAM. SPECIFICALLY, INTERESTED PARTIES
WERE ASKED:
SHOULD THE ASSISTANT SECRETARY OF LABOR HEAR AND RULE ON
NEGOTIABILITY DISPUTES THAT ARISE
IN THE CONTEXT OF UNFAIR LABOR PRACTICE PROCEEDINGS UNDER THE ORDER?
FOLLOWING THE COMPLETION OF ITS GENERAL REVIEW OF THE PROGRAM, THE
COUNCIL MADE THE FOLLOWING RECOMMENDATION TO THE PRESIDENT:
SECTIONS 6(A) AND 11 SHOULD BE AMENDED TO ASSIGN TO THE ASSISTANT
SECRETARY EXPRESS
AUTHORITY TO RESOLVE THOSE NEGOTIABILITY ISSUES WHICH HAVE ARISEN NOT
IN CONNECTION WITH
NEGOTIATIONS, BUT RATHER IN THE CONTEXT OF UNFAIR LABOR PRACTICE
PROCEEDINGS RESULTING FROM
UNILATERAL CHANGES IN ESTABLISHED PERSONNEL POLICIES AND PRACTICES
AND MATTERS AFFECTING
WORKING CONDITIONS. IN ADDITION, SECTIONS 4(C) AND 11 SHOULD BE
AMENDED TO PERMIT A PARTY
ADVERSELY AFFECTED BY SUCH A DETERMINATION TO EXERCISE A RIGHT TO
HAVE THE NEGOTIABILITY
DETERMINATION REVIEWED ON APPEAL BY THE COUNCIL.
IN EXPLANATION OF THIS RECOMMENDATION THE COUNCIL STATED:
EXECUTIVE ORDER 11491 ESTABLISHED SPECIAL PROCEDURES TO RESOLVE
DISPUTES OVER NEGOTIABILITY
QUESTIONS. SECTION 4(C)(2) GIVES THE COUNCIL AUTHORITY TO CONSIDER
"APPEALS ON NEGOTIABILITY
ISSUES AS PROVIDED IN SECTION 11(C) OF (THE) ORDER;" WHICH SECTION
STIPULATES THAT "(I)F, IN
CONNECTION WITH NEGOTIATIONS, AN ISSUE DEVELOPS AS TO WHETHER A
PROPOSAL IS CONTRARY TO LAW,
REGULATION, CONTROLLING AGREEMENT, OR THIS ORDER AND THEREFORE NOT
NEGOTIABLE, IT SHALL BE
RESOLVED AS FOLLOWS: . . . (4) A LABOR ORGANIZATION MAY APPEAL TO
THE COUNCIL FOR A DECISION
WHEN-- (I) IT DISAGREES WITH AN AGENCY HEAD'S DETERMINATION THAT A
PROPOSAL WOULD VIOLATE
APPLICABLE LAW, REGULATION OF APPROPRIATE AUTHORITY OUTSIDE THE
AGENCY, OR THIS ORDER, OR (II)
IT BELIEVES THAT AN AGENCY'S REGULATIONS, AS INTERPRETED BY THE
AGENCY HEAD, VIOLATES
APPLICABLE LAW, REGULATION OF APPROPRIATE AUTHORITY OUTSIDE THE
AGENCY, OR THIS ORDER."
THUS, IF IN CONNECTION WITH NEGOTIATIONS, A DISPUTE ARISES OVER THE
NEGOTIABILITY OF A
PROPOSAL AND THAT DISPUTE MEETS THE CONDITIONS PRESCRIBED IN SECTION
11(C) OF THE ORDER, IT
SHALL BE RESOLVED BY THE COUNCIL. THE STUDY COMMITTEE REPORT AND
RECOMMENDATIONS OF AUGUST
1969 WHICH LED TO THE ISSUANCE OF EXECUTIVE ORDER 11491 STATED THAT A
"LABOR ORGANIZATION
SHOULD BE PERMITTED TO FILE AN UNFAIR LABOR PRACTICE COMPLAINT WHEN
IT BELIEVES THAT A
MANAGEMENT OFFICIAL HAS BEEN ARBITRARY OR IN ERROR IN EXCLUDING A
MATTER FROM NEGOTIATION
WHICH HAS ALREADY BEEN DETERMINED TO BE NEGOTIABLE THROUGH THE
PROCESSES DESCRIBED . . . (IN
SECTION 11(C) OF THE ORDER)."
SECTION 6(A)(4) OF THE ORDER, AS CURRENTLY FORMULATED, GIVES THE
ASSISTANT SECRETARY
AUTHORITY TO "DECIDE UNFAIR LABOR PRACTICE COMPLAINTS," INCLUDING
COMPLAINTS UNDER SECTIONS
19(A)(6) OR 19(B)(6) THAT A PARTY HAS "REFUSED TO . . . NEGOTIATE .
. . " THE ASSISTANT
SECRETARY HAS CONSISTENTLY RULED THAT A PARTY MAY NOT UTILIZE THE
UNFAIR LABOR PRACTICE
PROVISIONS SET FORTH IN SECTION 19(A) OF THE ORDER AS A MEANS FOR
RESOLVING NEGOTIABILITY
DISPUTES WHICH ARISE IN CONNECTION WITH NEGOTIATIONS. CONSISTENT
WITH THE STUDY COMMITTEE
REPORT, THE ASSISTANT SECRETARY HAS HELD THAT SECTION 19 PROVIDES A
PARTY IN SUCH
CIRCUMSTANCES THE OPPORTUNITY TO FILE AN UNFAIR LABOR PRACTICE
COMPLAINT ALLEGING A REFUSAL TO
NEGOTIATE ONLY WHERE THE MATTER EXCLUDED FROM NEGOTIATION HAS ALREADY
BEEN DETERMINED TO BE
NEGOTIABLE THROUGH THE PROCEDURES SET FORTH IN SECTION 11(C) OF THE
ORDER. IN OTHER WORDS,
THE ASSISTANT SECRETARY HAS DECLINED TO CONSIDER
"REFUSAL-TO-NEGOTIATE" UNFAIR LABOR PRACTICE
COMPLAINTS ARISING IN CONNECTION WITH NEGOTIATIONS AND POSING
NEGOTIABILITY ISSUES UNLESS
THERE EXISTS APPLICABLE COUNCIL PRECEDENT ON WHICH HE CAN RELY TO
RESOLVE THE NEGOTIABILITY
ISSUES.
WE SUPPORT THE ASSISTANT SECRETARY'S POSITION ON THIS MATTER. THUS,
THE CHANGES WHICH WE
HERE PROPOSE WOULD NOT AFFECT THE EXISTING AUTHORITY OF THE COUNCIL
TO RESOLVE, UNDER THE
SECTION 11(C) PROCEDURES, NEGOTIABILITY DISPUTES WHICH ARISE IN
CONNECTION WITH NEGOTIATIONS
NOR WOULD THESE CHANGES AFFECT THE EXISTING RESPONSIBILITY OF THE
ASSISTANT SECRETARY TO RELY
UPON COUNCIL PRECEDENT TO RESOLVE NEGOTIABILITY ISSUES THAT ARISE IN
UNFAIR LABOR PRACTICE
CASES.
THE AMENDMENTS WHICH WE PROPOSE WOULD AFFIRM THE AUTHORITY OF THE
ASSISTANT SECRETARY, IN
THE CONTEXT OF CERTAIN UNFAIR LABOR PRACTICE CASES, TO RESOLVE
NEGOTIABILITY ISSUES, EVEN
THOUGH THERE IS NO EXISTING COUNCIL PRECEDENT TO GUIDE HIM, SO LONG
AS THESE ISSUES DO NOT
ARISE IN CONNECTION WITH NEGOTIATIONS BETWEEN THE PARTIES BUT RATHER
AS A RESULT OF A
RESPONDENT'S ALLEGED REFUSAL TO NEGOTIATE BY UNILATERALLY CHANGING AN
ESTABLISHED PERSONNEL
POLICY OR PRACTICE, OR MATTER AFFECTING WORKING CONDITIONS. THE
PRINCIPAL ARGUMENT SET FORTH
DURING THE REVIEW BY THOSE OPPOSED TO THE ASSISTANT SECRETARY'S
EXERCISE OF SUCH AUTHORITY WAS
THAT IT WOULD RESULT IN A BIFURCATION IN THE JURISDICTION TO MAKE
NEGOTIABILITY DETERMINATIONS
(WITH THE COUNCIL RETAINING THE AUTHORITY TO DETERMINE NEGOTIABILITY
QUESTIONS RAISED IN
CONNECTION WITH NEGOTIATIONS); IT WAS CONTENDED THAT THIS WOULD LEAD
TO CONFLICTING LINES OF
PRECEDENTIAL CASE AUTHORITY. FURTHERMORE, IT WAS ARGUED THAT IN THE
ABSENCE OF AN AGGRIEVED
PARTY'S ABILITY TO HAVE SUCH DETERMINATIONS REVIEWED BY THE COUNCIL
AS A MATTER OF RIGHT,
THESE CONFLICTS WOULD TEND TO PERSIST.
WHILE THIS ARGUMENT IS NOT WITHOUT MERIT, WE ARE OF THE OPINION THAT
THE PURPOSES OF THE
ORDER WOULD BE BETTER SERVED, ON BALANCE, BY PERMITTING THE ASSISTANT
SECRETARY TO EXERCISE
THE AUTHORITY TO HEAR AND RULE ON NEGOTIABILITY QUESTIONS WHICH ARISE
IN THE CONTEXT OF AN
UNFAIR LABOR PRACTICE PROCEEDING, RESULTING FROM A UNILATERAL CHANGE
IN ESTABLISHED PERSONNEL
POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS
RATHER THAN REQUIRING SUCH
CASES TO COME FIRST TO THE COUNCIL.
UNNECESSARY ADDITIONAL STEPS IN THE ADJUDICATORY PROCESS WOULD BE
REQUIRED IF SUCH
NEGOTIABILITY ISSUES WERE BROUGHT TO THE COUNCIL FOR INITIAL
ADJUDICATION. IN THOSE CASES
WHICH INVOLVED ALLEGED UNFAIR LABOR PRACTICES, THE COUNCIL, FOLLOWING
ITS DECISION ON THE
NEGOTIABILITY ISSUE, WOULD HAVE TO REMAND THE MATTER TO THE ASSISTANT
SECRETARY FOR FURTHER
ACTION BECAUSE SECTION 6 OF THE ORDER CHARGES THE ASSISTANT SECRETARY
WITH RESPONSIBILITY FOR
ISSUING DECISIONS IN UNFAIR LABOR PRACTICE CASES.
MOREOVER, AS EXPERIENCE UNDER THE ORDER CONTINUES TO GROW, AN
INCREASING NUMBER OF COUNCIL
NEGOTIABILITY DECISIONS WILL PROVIDE THE ASSISTANT SECRETARY WITH AN
EVER-EXPANDING BODY OF
AUTHORITY UPON WHICH TO DRAW IN RESOLVING CASES WHERE A UNILATERAL
ACTION BY ONE OF THE
PARTIES HAS GIVEN RISE TO AN UNFAIR LABOR PRACTICE COMPLAINT
INVOLVING NEGOTIABILITY
ISSUES. AS A RESULT, INSTANCES IN WHICH HE WILL BE CALLED UPON TO
PASS JUDGMENT ON SUCH
ISSUES ON A FIRST IMPRESSION BASIS WILL TEND TO DECLINE, THUS
REDUCING THE OPPORTUNITIES FOR
DECISIONS TO BE MADE WHICH WOULD PRODUCE DIVERGENT PRECEDENTS. THE
COUNCIL ALSO CONSIDERED AND
REJECTED THE ALTERNATIVE OF REQUIRING THE ASSISTANT SECRETARY TO
FORWARD NEGOTIABILITY ISSUES
TO THE COUNCIL FOR DETERMINATION WHEN THEY APPEARED IN THE COURSE OF
AN UNFAIR LABOR PRACTICE
PROCEEDING THUS DEFERRING HIS DECISION IN THE INTERIM UNTIL THE
COUNCIL COULD RESOLVE THE
ISSUES CONCERNED. WHERE NEGOTIABILITY ISSUES ARISE IN THE CONTEXT OF
SUCH UNFAIR LABOR
PRACTICE PROCEEDINGS THEY ARE OFTEN INEXTRICABLY INTERTWINED WITH
DISPUTED ISSUES OF FACT
WHICH MUST BE RESOLVED IN ORDER TO ARRIVE AT A CONCLUSION CONCERNING
THE MOTIVATION OF THE
PARTIES. SUCH DISPUTED ISSUES OF FACT ARE BEST RESOLVED THROUGH THE
ADVERSARY PROCESS OF A
FORMAL HEARING. FOR THIS REASON, AND BECAUSE OF THE DELAYS ATTENDANT
IN SUCH A REFERRAL
PROCEDURE, THE COUNCIL DOES NOT BELIEVE THAT SUCH AN ALTERNATIVE IS
FEASIBLE OR APPROPRIATE.
AS A RESULT OF THE FOREGOING CONSIDERATIONS, WE RECOMMEND THAT THE
ORDER BE AMENDED TO
PROVIDE THE ASSISTANT SECRETARY WITH EXPRESS AUTHORITY TO RESOLVE
THOSE NEGOTIABILITY ISSUES
WHICH ARISE IN THE CONTEXT OF CERTAIN UNFAIR LABOR PRACTICE
PROCEEDINGS-- THAT IS, THOSE WHERE
A UNILATERAL CHANGE IN AN ESTABLISHED PERSONNEL POLICY OR PRACTICE,
OR MATTER AFFECTING
WORKING CONDITIONS, LEADS TO A COMPLAINT THAT THE ACTING PARTY HAS
REFUSED, THEREBY, TO
NEGOTIATE. THE COUNCIL RECOGNIZES THAT NEGOTIABILITY ISSUES DECIDED
BY THE ASSISTANT
SECRETARY UNDER SUCH CIRCUMSTANCES MAY INVOLVE MATTERS OF CRITICAL
IMPORTANCE TO ONE OF THE
PARTIES CONCERNED WHERE AN EXPEDITIOUS RESOLUTION OF THE
NEGOTIABILITY ISSUE IS PARTICULARLY
DESIRABLE. EQUALLY IMPORTANT IS THE NEED TO REDUCE ANY DIVERGENCE
BETWEEN ASSISTANT SECRETARY
DECISIONS AND COUNCIL DETERMINATIONS OF NEGOTIABILITY TO THE ABSOLUTE
MINIMUM. THUS, THE
COUNCIL RECOMMENDS, IN ADDITION, THAT THE ORDER BE REVISED TO PROVIDE
THAT A PARTY ADVERSELY
AFFECTED BY AN ASSISTANT SECRETARY NEGOTIABILITY DETERMINATION WILL
HAVE A RIGHT TO HAVE SUCH
A DETERMINATION REVIEWED ON APPEAL BY THE COUNCIL. IN SUCH AN
APPEAL, THE PARTIES WOULD BE
PERMITTED TO RAISE ANY PERTINENT ISSUES AND ARGUMENTS WITH RESPECT TO
THE NEGOTIABILITY
DISPUTE AND THE COUNCIL WOULD REVISE ITS RULES SO TO PROVIDE.
FURTHER, THE COUNCIL WOULD
REVISE ITS RULES SO THAT APPEALS OF THIS TYPE WILL RECEIVE PRIORITY
CONSIDERATION.
FOLLOWING THE SUBMISSION OF THE COUNCIL'S REPORT AND RECOMMENDATIONS
TO THE PRESIDENT, THE ORDER WAS AMENDED ON FEBRUARY 6, 1975. IN
ACCORDANCE WITH THE COUNCIL'S RECOMMENDATIONS, PARAGRAPH (D) WAS ADDED
TO SECTION 11 OF THE AMENDED ORDER. IT PROVIDES THAT,
(D) IF, AS THE RESULT OF AN ALLEGED UNILATERAL CHANGE IN, OR ADDITION
TO PERSONNEL POLICIES
AND PRACTICES OR MATTERS AFFECTING WORKING CONDITIONS, THE ACTING
PARTY IS CHARGED WITH A
REFUSAL TO CONSULT, CONFER OR NEGOTIATE AS REQUIRED UNDER THIS ORDER,
THE ASSISTANT SECRETARY
MAY, IN THE EXERCISE OF HIS AUTHORITY UNDER SECTION 6(A)(4) OF THE
ORDER, MAKE THOSE
DETERMINATIONS OF NEGOTIABILITY AS MAY BE NECESSARY TO RESOLVE THE
MERITS OF THE ALLEGED
UNFAIR LABOR PRACTICE. IN SUCH CASES THE PARTY SUBJECT TO AN ADVERSE
RULING MAY APPEAL THE
ASSISTANT SECRETARY'S NEGOTIABILITY DETERMINATION TO THE COUNCIL.
PARAGRAPH (1) OF SECTION 4(C) AND PARAGRAPH (4) OF SECTION 6(A) WERE
ALSO AMENDED IN PERTINENT PART TO MAKE THEM CONFORM TO THE AMENDMENTS TO
SECTION 11 DESCRIBED ABOVE. /2/
THEREFORE, THE COUNCIL HAS, BY REASON OF AND TO THE EXTENT OF THE
ACTION DESCRIBED ABOVE, DETERMINED THAT THE ASSISTANT SECRETARY OF LABOR
DOES HAVE AUTHORITY TO HEAR AND RULE ON NEGOTIABILITY DISPUTES IN THE
UNFAIR LABOR PRACTICE PROCEEDINGS BEFORE HIM.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
/1/ CORRESPONDING AMENDMENTS TO SECTIONS 6(A) AND 4(C) WERE ALSO
APPROVED.
/2/ SECTION 4(C)(1), AS AMENDED, READS: "(1) APPEALS FROM DECISIONS
OF THE ASSISTANT SECRETARY ISSUED PURSUANT TO SECTION 6 OF THIS ORDER,
EXCEPT WHERE, IN CARRYING OUT HIS AUTHORITY UNDER SECTION 11(D), HE
MAKES A NEGOTIABILITY DETERMINATION, IN WHICH INSTANCE THE PARTY
ADVERSELY AFFECTED SHALL HAVE A RIGHT OF APPEAL;" (NEW LANGUAGE IS
UNDERLINED.)
SECTION 6(A)(4), AS AMENDED, READS: "(4) DECIDE UNFAIR LABOR
PRACTICE COMPLAINTS (INCLUDING THOSE WHEN AN ALLEGED UNILATERAL ACT BY
ONE OF THE PARTIES REQUIRES AN INITIAL NEGOTIABILITY DETERMINATION) AND
ALLEGED VIOLATIONS OF THE STANDARDS OF CONDUCT FOR LABOR ORGANIZATIONS;"
(NEW LANGUAGE IS UNDERLINED.)
3 FLRC 861; FLRC NO. 75A-99; DECEMBER 31, 1975.
MS. LISA RENEE STRAX, LEGAL DEPARTMENT
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
1737 H STREET, NW.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 75A-99
UNITED STATES DEPARTMENT OF ARMY, HEADQUARTERS, ARMY MATERIEL
COMMAND, ALEXANDRIA VIRGINIA, ASSISTANT SECRETARY CASE NO. 22-5819. THE
ASSISTANT SECRETARY DENIED THE REQUEST OF THE NATIONAL FEDERATION OF
FEDERAL EMPLOYEES (NFFE), FILED ON BEHALF OF NFFE LOCAL 1332, SEEKING
REVERSAL OF THE ACTING ASSISTANT REGIONAL DIRECTOR'S DISMISSAL OF THE
UNION'S 19(A)(1) AND (6) COMPLAINT, FINDING THAT THE UNION DID NOT
PRESENT SUFFICIENT EVIDENCE TO ESTABLISH A REASONABLE BASIS FOR ITS
CONTENTIONS, AND DETERMINING THAT FURTHER PROCEEDINGS ON THE COMPLAINT
WERE THEREFORE UNWARRANTED. NFFE APPEALED TO THE COUNCIL, ALLEGING,
INSOFAR AS PERTINENT TO THE FINDINGS OF THE ASSISTANT SECRETARY, THAT
HIS DECISION PRESENTED A MAJOR POLICY ISSUE.
COUNCIL ACTION (DECEMBER 31, 1975). THE COUNCIL HELD THAT NFFE'S
PETITION FOR REVIEW DID NOT MEET THE REQUIREMENTS OF SECTION 2411.12 OF
THE COUNCIL'S RULES; THAT IS, THE DECISION OF THE ASSISTANT SECRETARY
DID NOT PRESENT A MAJOR POLICY ISSUE, AND NFFE NEITHER ALLEGED, NOR DID
IT APPEAR, THAT THE DECISION WAS ARBITRARY AND CAPRICIOUS. ACCORDINGLY,
THE COUNCIL DENIED NFFE'S PETITION FOR REVIEW.
DEAR MS. STRAX:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION, AND THE AGENCY'S OPPOSITION THERETO, IN
THE ABOVE-ENTITLED CASE.
IN THIS CASE, YOU FILED A COMPLAINT ON BEHALF OF LOCAL 1332, NATIONAL
FEDERATION OF FEDERAL EMPLOYEES (THE UNION), AGAINST UNITED STATES
DEPARTMENT OF ARMY, HEADQUARTERS, ARMY MATERIEL COMMAND, ALEXANDRIA,
VIRGINIA (THE ACTIVITY). THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT THE
ACTIVITY VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY DISREGARDING
CIVIL SERVICE COMMISSION REGULATIONS AND THE AGENCY'S OWN MERIT
PROMOTION PLAN IN FILLING POSITION VACANCIES. THE UNION FURTHER ALLEGED
THAT SUCH CONDUCT CONSTITUTED A UNILATERAL CHANGE IN THE POLICIES AND
PROCEDURES UNDER WHICH THE ACTIVITY IS TO OPERATE, SINCE THE UNION WAS
GIVEN NO OPPORTUNITY FOR PRIOR CONSULTATION OR NEGOTIATION ON SUCH
MATTERS.
THE ASSISTANT SECRETARY, IN AGREEMENT WITH THE ACTING ASSISTANT
REGIONAL DIRECTOR (ARD), DECIDED THAT FURTHER PROCEEDINGS WERE
UNWARRANTED. IN REACHING THIS DETERMINATION, THE ASSISTANT SECRETARY
STATED:
. . . I FIND THAT THE COMPLAINANT DID NOT PRESENT SUFFICIENT EVIDENCE
TO ESTABLISH A
REASONABLE BASIS FOR ITS CONTENTION THAT THE ACTIVITY CHANGED ITS
MERIT PROMOTION POLICIES
SUBSEQUENT TO RECOGNIZING THE COMPLAINANT AS THE EXCLUSIVE
REPRESENTATIVE OF CERTAIN OF ITS
EMPLOYEES. FURTHER, I FIND THAT THE COMPLAINANT DID NOT PRESENT
SUFFICIENT EVIDENCE TO
ESTABLISH A REASONABLE BASIS FOR ITS ALLEGATION THAT THE ACTIVITY
REFUSED TO MEET AND CONFER
WITH THE COMPLAINANT WITH REGARD TO ITS MERIT PROMOTION POLICIES AND
PROCEDURES. SEE, IN THIS
REGARD, SECTION 203.6(E) OF THE ASSISTANT SECRETARY'S REGULATIONS.
ACCORDINGLY, THE ASSISTANT SECRETARY DENIED THE UNION'S REQUEST FOR
REVIEW SEEKING REVERSAL OF THE ACTING ARD'S DISMISSAL OF THE COMPLAINT,
WHEREUPON THE UNION FILED THE INSTANT APPEAL.
IN YOUR PETITION FOR REVIEW ON BEHALF OF THE UNION, YOU ALLEGE,
INSOFAR AS IS PERTINENT TO THE FINDINGS OF THE ASSISTANT SECRETARY, THAT
THE ASSISTANT SECRETARY'S DECISION PRESENTS A MAJOR POLICY ISSUE AS TO
"WHETHER SECTION 203.6(E) OF THE ASSISTANT SECRETARY'S RULES REQUIRES A
COMPLAINANT TO BEAR THE BURDEN OF PROVING EVERY ELEMENT OF THE CASE AT
THE TIME AN UNFAIR LABOR PRACTICE COMPLAINT IS FILED." /1/ IN THIS
CONNECTION, YOU ASSERT THAT THE BURDEN OF PROOF IMPOSED BY SECTION
203.6(E) OF THE ASSISTANT SECRETARY'S REGULATIONS MERELY REQUIRES THE
UNION TO PROPERLY STATE A CAUSE OF ACTION RECOGNIZABLE UNDER THE ORDER,
AND THAT FURTHER PROCEEDINGS ARE REQUIRED TO FULLY RESOLVE THE CONTESTED
FACTUAL ISSUES.
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW DOES NOT MEET THE
REQUIREMENTS OF SECTION 2411.12 OF THE COUNCIL'S RULES; THAT IS, THE
DECISION OF THE ASSISTANT SECRETARY DOES NOT PRESENT A MAJOR POLICY
ISSUE, AND YOU DO NOT ALLEGE, NOR DOES IT APPEAR, THAT HIS DECISION WAS
ARBITRARY AND CAPRICIOUS.
SECTION 6(D) OF THE ORDER PROVIDES: "THE ASSISTANT SECRETARY SHALL
PRESCRIBE REGULATIONS NEEDED TO ADMINISTER HIS FUNCTIONS UNDER THIS
ORDER," ONE OF WHICH IS TO "DECIDE UNFAIR LABOR PRACTICE COMPLAINTS . .
. " PURSUANT TO SECTION 6(A)(4) OF THE ORDER. SECTION 203.8(A) OF THE
ASSISTANT SECRETARY'S REGULATIONS PROVIDES:
IF THE ASSISTANT REGIONAL DIRECTOR DETERMINES THAT . . . A REASONABLE
BASIS FOR THE
COMPLAINT HAS NOT BEEN ESTABLISHED, . . . HE MAY DISMISS THE
COMPLAINT.
FURTHER, SECTION 203.6(E) STATES:
THE COMPLAINANT SHALL BEAR THE BURDEN OF PROOF AT ALL STAGES OF THE
PROCEEDING REGARDING
MATTERS ALLEGED IN ITS COMPLAINT . . .
AS THE COUNCIL PREVIOUSLY NOTED IN DEPARTMENT OF THE ARMY, INDIANA
ARMY AMMUNITION PLANT, CHARLESTOWN, INDIANA, FLRC NO. 74A-90 (MAY 9,
1975), REPORT NO. 69, THE FOREGOING REGULATIONS WERE PROMULGATED BY THE
ASSISTANT SECRETARY PURSUANT TO THE ORDER AND CONSISTENT WITH THE STUDY
COMMITTEE REPORT AND RECOMMENDATIONS, WHICH PROVIDES THAT "(I)F THE
ASSISTANT SECRETARY FINDS THAT . . . A REASONABLE BASIS FOR THE
COMPLAINT HAS NOT BEEN ESTABLISHED, . . . HE MAY DISMISS THE COMPLAINT."
HIS DECISION IN THE INSTANT CASE WAS BASED UPON THE APPLICATION OF THESE
REGULATIONS, AND YOUR PETITION PRESENTS NO PERSUASIVE REASONS TO SHOW
THAT THE ASSISTANT SECRETARY WAS WITHOUT AUTHORITY TO ESTABLISH THE
ABOVE REGULATIONS, OR THAT HE APPLIED THESE REGULATIONS IN A MANNER
INCONSISTENT WITH THE ORDER IN THE CIRCUMSTANCES OF THIS CASE.
BECAUSE THE ASSISTANT SECRETARY'S DECISION DOES NOT PRESENT A MAJOR
POLICY ISSUE, AND YOU NEITHER ALLEGE, NOR DOES IT APPEAR, THAT HIS
DECISION IS ARBITRARY AND CAPRICIOUS, YOUR APPEAL FAILS TO MEET THE
REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.12 OF THE COUNCIL'S
RULES AND REGULATIONS. ACCORDINGLY, YOUR PETITION FOR REVIEW IS HEREBY
DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
W. J. SCHRADER
ARMY
/1/ YOU ALSO TAKE ISSUE IN YOUR APPEAL, ESSENTIALLY, WITH THE ACTING
ARD'S DETERMINATION THAT THE ALLEGED UNILATERAL CHANGES, EVEN IF TRUE,
DID NOT CONSTITUTE VIOLATIONS OF SECTION 19(A)(1) AND (6) OF THE ORDER.
HOWEVER, THIS DETERMINATION WAS NOT RELIED UPON BY THE ASSISTANT
SECRETARY IN HIS DECISION AND, APART FROM OTHER CONSIDERATIONS, IT
THEREFORE PROVIDES NO BASIS FOR YOUR APPEAL.
3 FLRC 857; FLRC NO. 75A-31; DECEMBER 31, 1975.
FEDERAL AVIATION ADMINISTRATION,
DEPARTMENT OF TRANSPORTATION,
FORTH WORTH AIR ROUTE TRAFFIC
CONTROL CENTER
AND
PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION
(SYNOPSIS) FLRC NO. 75A-31
FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION, FORT
WORTH AIR ROUTE TRAFFIC CONTROL CENTER AND PROFESSIONAL AIR TRAFFIC
CONTROLLERS ORGANIZATION (JENKINS, ARBITRATOR). THE ARBITRATOR
DETERMINED THAT THE GRIEVANT WAS ENTITLED TO SICK LEAVE UNDER THE
PARTIES' COLLECTIVE BARGAINING AGREEMENT AND ORDERED THE AGENCY TO
CHANGE THE DESIGNATION OF THE GRIEVANT'S ABSENCE FROM ANNUAL LEAVE TO
SICK LEAVE. THE COUNCIL ACCEPTED THE AGENCY'S PETITION FOR REVIEW
INSOFAR AS IT RELATED TO THE AGENCY'S EXCEPTION THAT THE AWARD VIOLATES
LAW AND APPLICABLE CIVIL SERVICE COMMISSION REGULATIONS (REPORT NO. 82).
COUNCIL ACTION (DECEMBER 31, 1975). BASED UPON AN INTERPRETATION BY
THE CIVIL SERVICE COMMISSION, RENDERED IN RESPONSE TO THE COUNCIL'S
REQUEST, THE COUNCIL FOUND THAT THE ARBITRATOR'S AWARD, INSOFAR AS IT
ORDERED THE AGENCY TO CHANGE THE DESIGNATION OF THE GRIEVANT'S ABSENCE
FROM ANNUAL LEAVE TO SICK LEAVE, VIOLATED APPLICABLE LAW AND APPROPRIATE
REGULATION. ACCORDINGLY, PURSUANT TO SECTION 2411.37(B) OF ITS RULES OF
PROCEDURE, THE COUNCIL SET ASIDE THE ARBITRATOR'S AWARD.
THIS APPEAL AROSE FROM AN AWARD ISSUED BY THE ARBITRATOR, WHEREIN HE
DETERMINED THAT THE FEDERAL AVIATION ADMINISTRATION (THE AGENCY)
VIOLATED ARTICLE 29, SECTION 2 OF THE NEGOTIATED AGREEMENT /1/ WHICH THE
AGENCY HAD ENTERED INTO WITH THE PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION (THE UNION). BASED ON THE FINDINGS OF THE ARBITRATOR AND
THE ENTIRE RECORD, THE BACKGROUND OF THE CASE IS AS FOLLOWS: THE
GRIEVANT WAS EMPLOYED BY THE AGENCY AT THE FORT WORTH AIR ROUTE TRAFFIC
CONTROL CENTER AS AN AIR TRAFFIC CONTROL SPECIALIST. ON JANUARY 2,
1974, THE GRIEVANT WAS AWAKE MOST OF THE NIGHT ATTENDING SICK MEMBERS OF
HIS FAMILY. THE NEXT MORNING, THE GRIEVANT CALLED THE ACTING ASSISTANT
CHIEF OF THE ACTIVITY TO INFORM HIM THAT HE WOULD NOT BE IN THAT DAY AND
TO REQUEST LEAVE. THE SPECIFIC TYPE OF LEAVE REQUESTED AND GRANTED WAS
NOT DISCUSSED. THE GRIEVANCE AROSE OUT OF THE FACT THAT THE ACTIVITY
DESIGNATED GRIEVANT'S 8-HOUR ABSENCE AS ANNUAL LEAVE RATHER THAN SICK
LEAVE.
THE DISPUTE ULTIMATELY WENT TO ARBITRATION. THE ARBITRATOR CONCLUDED
THAT AN "UPSET FATHER WHO HAS BEEN UP MOST OF THE NIGHT COULD NOT DEVOTE
TO THE JOB THE PROPER CONCENTRATION AND ALERTNESS THAT IS REQUIRED,"
AND, THEREFORE, GRIEVANT WAS INCAPACITATED WITHIN THE MEANING OF ARTICLE
29, SECTION 2 OF THE AGREEMENT. THE ARBITRATOR, DETERMINING THAT THE
INCAPACITY IN THE INSTANT CASE WAS CAUSED THROUGH NO FAULT OF THE
GRIEVANT, FOUND THAT THE CONTRACT ALLOWED THE GRANTING OF SICK LEAVE
UNDER THE CIRCUMSTANCES AND ORDERED THE AGENCY TO CHANGE THE ANNUAL
LEAVE TO SICK LEAVE.
THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD WITH
THE COUNCIL ALLEGING, AMONG OTHER THINGS, THAT THE AWARD VIOLATES LAW
AND APPLICABLE CIVIL SERVICE COMMISSION REGULATIONS. /2/ UNDER SECTION
2411.32 OF THE COUNCIL'S RULES OF PROCEDURE, THE COUNCIL ACCEPTED THE
AGENCY'S PETITION FOR REVIEW INSOFAR AS IT RELATED TO THAT EXCEPTION.
NEITHER PARTY FILED A BRIEF IN THE CASE.
SECTION 2411.37(A) OF THE COUNCIL'S RULES OF PROCEDURE PROVIDES, IN
PERTINENT PART, THAT "AN AWARD OF AN ARBITRATOR SHALL BE MODIFIED, SET
ASIDE IN WHOLE OR IN PART, OR REMANDED ONLY ON GROUNDS THAT THE AWARD
VIOLATES APPLICABLE LAW, APPROPRIATE REGULATION . . . "
THE QUESTION BEFORE THE COUNCIL IS WHETHER THE AWARD ORDERING THE
AGENCY TO CHANGE THE DESIGNATION OF THE GRIEVANT'S ABSENCE FROM ANNUAL
LEAVE TO SICK LEAVE VIOLATES LAW AND APPROPRIATE REGULATION. SINCE THE
CIVIL SERVICE COMMISSION HAS PRIMARY RESPONSIBILITY UNDER 5 U.S.C. 6311
FOR THE ISSUANCE AND INTERPRETATION OF REGULATIONS GOVERNING THE
GRANTING OF SICK LEAVE, THAT AGENCY WAS REQUESTED FOR AN INTERPRETATION
OF THE APPLICABLE REGULATIONS AS THEY PERTAIN TO THE QUESTIONS RAISED IN
THE INSTANT CASE. THE COMMISSION REPLIED IN RELEVANT PART AS FOLLOWS:
IN THIS CASE, THE ARBITRATOR DETERMINED THAT THE AGENCY'S REFUSAL TO
GRANT THE GRIEVANT
SICK LEAVE FOR INCAPACITATION DUE TO FATIGUE FROM CARING FOR HIS SICK
CHILDREN CONSTITUTED A
VIOLATION OF THE COLLECTIVE BARGAINING AGREEMENT. AS A REMEDY, HE
ORDERED THE AGENCY TO
CHANGE THE DESIGNATION OF THE EMPLOYEE'S ABSENCE FROM ANNUAL LEAVE TO
SICK LEAVE. THE CASE IN
QUESTION IS ALMOST IDENTICAL TO ONE ON WHICH THE COMPTROLLER GENERAL
RULED ON SEPTEMBER 2 OF
THIS YEAR (DECISION NO. B-181686) IN RESPONSE TO A REQUEST FROM THE
FEDERAL AVIATION
ADMINISTRATION CONCERNING THE IMPLEMENTABILITY OF AN ARBITRATOR'S
AWARD. BASED ON AN
INTERPRETATION OF CIVIL SERVICE COMMISSION REGULATIONS THAT WE
PROVIDED, THE COMPTROLLER
GENERAL RULED THAT "THE ARBITRATOR'S AWARD GRANTING SICK LEAVE TO AN
EMPLOYEE WHO ATTENDED A
SICK MEMBER OF HIS FAMILY NOT AFFLICTED WITH A CONTAGIOUS DISEASE,
WHO AS A RESULT WAS NOT
ABLE TO PERFORM HIS DUTIES, MAY NOT BE IMPLEMENTED BY THE AGENCY
SINCE THERE IS NO LEGAL
AUTHORITY TO GRANT SICK LEAVE IN THE CIRCUMSTANCES."
IN OUR LETTER TO THE COMPTROLLER GENERAL, WE STATED THAT ALTHOUGH THE
EMPLOYEE MAY HAVE
BEEN INCAPACITATED TO PERFORM HIS DUTIES AS AN AIR TRAFFIC
CONTROLLER, HE WAS NOT
INCAPACITATED FOR ANY OF THE REASONS SET FORTH IN CIVIL SERVICE
COMMISSION REGULATION 630.401
(5 CODE OF FEDERAL REGULATIONS) WHICH PROVIDES FOR GRANTING SICK
LEAVE WHEN THE EMPLOYEE:
"(B) IS INCAPACITATED FOR THE PERFORMANCE OF DUTIES BY SICKNESS,
INJURY OR PREGNANCY AND
CONFINEMENT;
(C) IS REQUIRED TO GIVE CARE AND ATTENDANCE TO A MEMBER OF HIS
IMMEDIATE FAMILY WHO IS
AFFLICTED WITH A CONTAGIOUS DISEASE; . . . "
WE ALSO INFORMED THE COMPTROLLER GENERAL THAT SECTION 630.401 HAS
ALWAYS BEEN STRICTLY
INTERPRETED TO MEAN THAT SICK LEAVE IS APPROPRIATE ONLY UNDER
CIRCUMSTANCES THAT LITERALLY
MEET THE REQUIREMENTS OF THE REGULATION. FURTHER, WE POINTED OUT
THAT THE GENEROUS AMOUNTS OF
ANNUAL LEAVE GRANTED TO FEDERAL EMPLOYEES WERE AUTHORIZED BY LAW WITH
THE UNDERSTANDING THAT
THEY WERE MEANT FOR MORE THAN VACATIONS. ANNUAL LEAVE IS TO BE USED
FOR A VARIETY OF PERSONAL
AND EMERGENCY REASONS, E.G., TRANSPORTING A MEMBER OF THE FAMILY WHO
IS ILL, BUT NOT WITH A
CONTAGIOUS DISEASE; OR BEING TIRED OR FATIGUED BECAUSE OF LOSS OF
SLEEP DUE TO ANY ONE OF A
NUMBER OF CAUSES, RANGING FROM CARE OF AN ILL MEMBER OF THE FAMILY TO
WORRY OVER FAMILY
PROBLEMS.
IN LIGHT OF THE COMPTROLLER GENERAL'S ACCEPTANCE OF AND CONCURRENCE
IN OUR LONG-STANDING
INTERPRETATION OF THE CITED REGULATION, WE CONCLUDE THAT THE
ARBITRATOR'S AWARD IN THE CASE
DESCRIBED IN PARAGRAPH ONE OF THIS LETTER IS IN CONFLICT WITH
APPLICABLE LAW AND COMMISSION
INSTRUCTIONS.
BASED UPON THE FOREGOING INTERPRETATION BY THE CIVIL SERVICE
COMMISSION, WE MUST CONCLUDE THAT THE ARBITRATOR'S AWARD, INSOFAR AS IT
ORDERS THE AGENCY TO CHANGE THE DESIGNATION OF THE GRIEVANT'S ABSENCE
FROM ANNUAL LEAVE TO SICK LEAVE, VIOLATES APPLICABLE LAW AND APPROPRIATE
REGULATION AND, THEREFORE, MUST BE SET ASIDE.
FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2411.37(B) OF THE
COUNCIL'S RULES OF PROCEDURE, WE SET ASIDE THE ARBITRATOR'S AWARD.
BY THE COUNCIL.
ISSUED: DECEMBER 31, 1975
/1/ ACCORDING TO THE AWARD, ARTICLE 29, SECTION 2 OF THE AGREEMENT
STATES, IN PERTINENT PART:
APPROVAL OF SICK LEAVE SHALL BE GRANTED TO AN EMPLOYEE WHO IS
INCAPACITATED FOR THE
PERFORMANCE OF HIS DUTIES. UNDER CERTAIN CIRCUMSTANCES INVOLVING
CONTAGIOUS DISEASES AS SET
FORTH IN APPLICABLE STATUTES AND REGULATIONS, SICK LEAVE SHALL BE
APPROVED . . .
/2/ THE AGENCY REQUESTED AND THE COUNCIL GRANTED A STAY OF THE AWARD
PENDING THE DETERMINATION OF THE APPEAL PURSUANT TO SECTION 2411.47(D)
OF THE COUNCIL'S RULES OF PROCEDURE WHICH GOVERNED THE GRANTING OF STAYS
OF ARBITRATOR'S AWARDS WHEN THE STAY WAS ACTED UPON.
3 FLRC 850; FLRC NO. 75A-23; DECEMBER 31, 1975.
OFFICE OF ECONOMIC OPPORTUNITY
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2677
(SYNOPSIS) FLRC NO. 75A-23
OFFICE OF ECONOMIC OPPORTUNITY AND AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2677 (DOHERTY, ARBITRATOR). THE COUNCIL ACCEPTED THE
AGENCY'S PETITION FOR REVIEW INSOFAR AS IT RELATED TO THE AGENCY'S
EXCEPTIONS WHICH ALLEGED, IN EFFECT, THAT THE ARBITRATOR WAS WITHOUT
AUTHORITY TO FASHION AN AWARD DIRECTING THE AGENCY TO PAY MONEY, WHICH
WAS IN THE NATURE OF PUNITIVE DAMAGES, TO THE UNION AND THAT THE AWARD
VIOLATED APPLICABLE LAW (REPORT NO. 70).
COUNCIL ACTION (DECEMBER 31, 1975). BASED UPON A DECISION OF THE
COMPTROLLER GENERAL, RENDERED IN RESPONSE TO THE COUNCIL'S REQUEST, THE
COUNCIL FOUND THAT BECAUSE IT IS NOT LEGALLY PERMISSIBLE FOR THE AGENCY
TO PAY TO THE UNION MONEY WHICH HAS BEEN AWARDED IN THE NATURE OF
PUNITIVE DAMAGES, THE ARBITRATOR'S AWARD VIOLATES APPLICABLE LAW AND MAY
NOT BE IMPLEMENTED. ACCORDINGLY, PURSUANT TO SECTION 2411.37(B) OF ITS
RULES OF PROCEDURE, THE COUNCIL SET ASIDE THE ARBITRATOR'S AWARD.
THIS APPEAL AROSE FROM THE REMEDY, IN WHICH THE AGENCY WAS DIRECTED
TO PAY OVER MONEY TO THE UNION, AWARDED BY THE ARBITRATOR FOR THE
AGENCY'S ADMITTED VIOLATION OF THE COLLECTIVE BARGAINING AGREEMENT, AS
FOUND BY THE ARBITRATOR.
BASED ON THE FINDINGS OF THE ARBITRATOR AND THE ENTIRE RECORD, IT
APPEARS THAT IN JULY 1973, J. L. MCCARTY WAS EMPLOYED BY THE AGENCY AS A
$100-A-DAY CONSULTANT FOR A PERIOD NOT TO EXCEED 100 WORKING DAYS. THE
AGENCY AND THE UNION AMENDED THEIR NATIONAL AGREEMENT ON SEPTEMBER 11,
1973. THE UNION FILED A GRIEVANCE IN DECEMBER 1973, ALLEGING THAT
MCCARTY'S CONTINUED EMPLOYMENT AS A PAID CONSULTANT VIOLATED SECTION 4
OF THE SEPTEMBER 11, 1973, AMENDMENT. /1/ IN JANUARY 1974, THE AGENCY
REFUSED THE UNION'S REQUEST FOR ARBITRATION OF THE GRIEVANCE AND SHORTLY
THEREAFTER FILED AN APPLICATION FOR A DECISION AS TO ARBITRABILITY WITH
THE ASSISTANT SECRETARY, WHO FOUND THE MATTER TO BE ARBITRABLE. IN
FEBRUARY 1974, THE CIVIL SERVICE COMMISSION (CSC) INFORMED THE AGENCY
THAT IT WAS REVIEWING THE DUTIES PERFORMED BY MCCARTY AND WOULD NOTIFY
THE AGENCY IF ANY CORRECTIVE ACTION WERE REQUIRED. MCCARTY RESIGNED ON
MARCH 15, 1974. THE ARBITRATION HEARING WAS HELD ON APRIL 10, 1974. ON
APRIL 11, 1974, THE CSC DIRECTED THE TERMINATION OF MCCARTY'S
APPOINTMENT BECAUSE TWO OF THE THREE TYPES OF DUTIES HE WAS PERFORMING
WERE INAPPROPRIATE TO HIS APPOINTMENT.
DURING THE ARBITRATION HEARING THE AGENCY STIPULATED THAT MCCARTY HAD
PERFORMED WORK THAT COULD HAVE BEEN PERFORMED BY REGULAR CAREER
EMPLOYEES OF THE AGENCY, IN VIOLATION OF SECTION 4 OF THE SEPTEMBER 11,
1973, AMENDMENT.
THE ARBITRATOR DETERMINED THAT, ALTHOUGH NEITHER THE UNION NOR ANY
EMPLOYEE IN THE BARGAINING UNIT COULD SHOW ANY DIRECT DAMAGE AS A RESULT
OF THE ADMITTED VIOLATION BY THE AGENCY OF THE AGREEMENT, A REMEDY WOULD
BE DESIGNED "TO ENSURE THAT FUTURE GRIEVANCES OF THIS TYPE WILL BE
SPEEDILY AND FAIRLY RESOLVED IN A WAY WHICH WILL ENCOURAGE THE
HARMONIOUS RELATIONSHIPS WHICH COLLECTIVE BARGAINING AGREEMENTS ARE
SUPPOSED TO ESTABLISH." AS A REMEDY, THE ARBITRATOR ORDERED THE AGENCY
TO "PAY OVER TO THE UNION AN AMOUNT EQUAL TO FIVE CONSULTING DAYS AT THE
RATE PAID TO MCCARTY." HE DIRECTED THAT "(S)UCH FUNDS MAY BE USED BY THE
UNION FOR ANY PURPOSE WHICH IS OF DIRECT BENEFIT TO ALL EMPLOYEES IN THE
BARGAINING UNIT REGARDLESS OF THEIR MEMBERSHIP IN THE UNION." HE FURTHER
DIRECTED THAT "THE AGENCY SHALL HAVE A REPORT ON HOW THESE FUNDS ARE
SPENT SO THAT THEY MAY ASSURE COMPLIANCE WITH THIS AWARD."
THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD WITH
THE COUNCIL. UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE,
THE COUNCIL ACCEPTED THE PETITION FOR REVIEW INSOFAR AS IT RELATED TO
THE AGENCY'S EXCEPTIONS WHICH ALLEGE, IN EFFECT, THAT THE ARBITRATOR WAS
WITHOUT AUTHORITY TO FASHION AN AWARD DIRECTING THE AGENCY TO PAY OVER
MONEY TO THE UNION AND THAT THE AWARD VIOLATES APPLICABLE LAW. /2/ THE
UNION FILED A BRIEF.
SECTION 2411.37(A) OF THE COUNCIL'S RULES OF PROCEDURE PROVIDES THAT:
(A) AN AWARD OF AN ARBITRATOR SHALL BE MODIFIED, SET ASIDE IN WHOLE
OR IN PART, OR REMANDED
ONLY ON GROUNDS THAT THE AWARD VIOLATES APPLICABLE LAW, APPROPRIATE
REGULATION, OR THE ORDER,
OR OTHER GROUNDS SIMILAR TO THOSE APPLIED BY THE COURTS IN PRIVATE
SECTOR LABOR-MANAGEMENT
RELATIONS.
THE QUESTION BEFORE THE COUNCIL IS WHETHER THE ARBITRATOR WAS WITHOUT
LEGAL AUTHORITY TO FASHION AN AWARD DIRECTING THE AGENCY TO PAY OVER
MONEY TO THE UNION, AND, THEREFORE, WHETHER THE AWARD VIOLATES
APPLICABLE LAW. BECAUSE THIS CASE CONCERNS AN ISSUE WITHIN THE
JURISDICTION OF THE COMPTROLLER GENERAL'S OFFICE, ESPECIALLY THE
APPLICABILITY OF PRIOR COMPTROLLER GENERAL DECISIONS, HE WAS REQUESTED
TO DECIDE WHETHER THE ARBITRATOR'S AWARD VIOLATES APPLICABLE LAW. THE
COMPTROLLER GENERAL'S DECISION IN THE MATTER, B-180010, DECEMBER 11,
1975, IS SET FORTH IN RELEVANT PART AS FOLLOWS:
THIS DECISION IS IN RESPONSE TO A REQUEST FROM THE DIRECTOR OF THE
COMMUNITY SERVICES
ADMINISTRATION (HEREINAFTER REFERRED TO AS THE "AGENCY") AS TO
WHETHER IT MAY DISBURSE
APPROPRIATED FUNDS TO IMPLEMENT AN ARBITRATOR'S AWARD OF PUNITIVE
DAMAGES TO BE PAID BY THE
AGENCY TO THE UNION LOCAL (FMCS CASE #74K07852, J. LAWRENCE MCCARTY
GRIEVANCE). THE FEDERAL
LABOR RELATIONS COUNCIL HAS ALSO REQUESTED A DECISION WHETHER THE
ARBITRATOR'S AWARD (OFFICE
OF ECONOMIC OPPORTUNITY AND AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2677 (DOHERTY,
ARBITRATOR), FLRC NO. 75-A-23) VIOLATES APPLICABLE LAW.
THE FACTS IN THIS CASE, WHICH FOR THE MOST PART ARE NOT IN DISPUTE,
ARE AS FOLLOWS. ON
JULY 28, 1973, MR. J. LAWRENCE MCCARTY WAS EMPLOYED BY THE OFFICE OF
ECONOMIC OPPORTUNITY (NOW
THE COMMUNITY SERVICES ADMINISTRATION) AS A CONSULTANT. ON DECEMBER
7, 1973, LOCAL 2677 OF
THE NATIONAL COUNCIL OF OEO LOCALS, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES (HEREINAFTER
THE "UNION"), FILED A GRIEVANCE WITH THE AGENCY ALLEGING THAT MR.
MCCARTY'S EMPLOYMENT WAS IN
VIOLATION OF SECTION 4 OF THE SEPTEMBER 11, 1973 AMENDMENT TO THE
NATIONAL AGREEMENT BETWEEN
THE AGENCY AND AFGE WHICH PROVIDES:
SECTION 4. CONSULTANTS AND EXPERTS
CONSULTANTS AND EXPERTS WILL NOT BE USED TO PERFORM WORK THAT COULD
BE PERFORMED BY OEO
EMPLOYEES, AND PRIOR TO ANY SUCH EMPLOYMENT, THE UNION WILL BE
APPRAISED (SIC) AS TO THE
PERSON, HIS QUALIFICATIONS FOR THE POSITION AND THE ROLE THIS PERSON
IS TO PERFORM.
THE UNION SOUGHT MR. MCCARTY'S IMMEDIATE REMOVAL, REIMBURSEMENT OF
HIS SALARY TO THE
U.S. TREASURY, AND AN ASSURANCE THAT THE AGENCY WOULD NOT HIRE ANY
OTHER CONSULTANTS IN
VIOLATION OF THIS PROVISION. THE AGENCY REFUSED THE UNION'S REQUEST
FOR ARBITRATION AND SOUGHT
A DECISION FROM THE LABOR-MANAGEMENT SERVICES ADMINISTRATION
(DEPARTMENT OF LABOR) AS TO
WHETHER THE MATTER WAS ARBITRABLE. THE PARTIES WERE ADVISED ON
FEBRUARY 14, 1974, THAT THE
MATTER WAS ARBITRABLE, AND AN ARBITRATION HEARING WAS HELD ON APRIL
10, 1974. THE AGENCY
STIPULATED THAT IT HAD VIOLATED SECTION 4 OF THE NATIONAL AGREEMENT,
BUT IT NOTED THAT
MR. MCCARTY HAD RESIGNED FROM THE AGENCY ON MARCH 15, 1974. THE
RECORD ALSO INDICATES THAT
THE CIVIL SERVICE COMMISSION DIRECTED THE AGENCY ON APRIL 11, 1974,
TO TERMINATE MR. MCCARTY'S
APPOINTMENT ON THE GROUND THAT HE WAS NOT PERFORMING PROPER
CONSULTANT WORK.
THE ARBITRATOR'S OPINION AND AWARD, DATED JANUARY 22, 1975, STATED
THAT NEITHER THE UNION
NOR ANY EMPLOYEE IN THE BARGAINING UNIT COULD SHOW ANY DIRECT DAMAGE
AS A RESULT OF THE
AGENCY'S ADMITTED VIOLATION OF THE COLLECTIVE BARGAINING AGREEMENT.
NEVERTHELESS, THE
ARBITRATOR CONCLUDED THAT THE AGENCY HAD NOT COMPLIED WITH THE LETTER
OR THE SPIRIT OF THE
AGREEMENT, AND HE, THEREFORE, SOUGHT TO FASHION A REMEDY TO UNDO ANY
HARM DONE AND TO ENSURE
SPEEDY AND FAIR RESOLUTIONS OF FUTURE GRIEVANCES OF THIS TYPE. AFTER
REJECTING SEVERAL
SUGGESTED REMEDIES, HE DIRECTED THE AGENCY TO PAY THE UNION A PENALTY
PAYMENT, AS FOLLOWS
(OPINION AND AWARD, P. 7):
IT IS MY DECISION THAT THE AGENCY PAY OVER TO THE UNION AN AMOUNT
EQUAL TO FIVE CONSULTING
DAYS AT THE RATE PAID TO MCCARTY. SUCH FUNDS MAY BE USED BY THE
UNION FOR ANY PURPOSE WHICH
IS OF DIRECT BENEFIT TO ALL EMPLOYEES IN BARGAINING UNIT REGARDLESS
OF THEIR MEMBERSHIP IN THE
UNION. I FURTHER DIRECT THAT THE AGENCY SHALL HAVE A REPORT ON HOW
THESE FUNDS ARE SPENT SO
THAT THEY MAY ASSURE COMPLIANCE WITH THIS AWARD.
THE ARBITRATOR STATED THAT SUCH AN AWARD WAS "CONSONANT WITH THE
GUIDELINES SET BY
ARBITRATORS IN THE NON FEDERAL SECTOR" AND WAS NOT STRANGE TO THE
FEDERAL SECTOR IN THAT:
THE APPLICABLE AGREEMENT IN THIS CASE PROVIDING AS IT DOES FOR
ASSESSMENT OF THE
ARBITRATOR'S FEE IS A DIRECT MONETARY PAYMENT ON THE EMPLOYEE'S
BEHALF BY THE AGENCY AS A FORM
OF PENALTY, AND SUCH PAYMENT INURES DIRECTLY TO THE UNION FOR THE
BENEFIT OF ALL EMPLOYEES.
THE COMMUNITY SERVICES ADMINISTRATION FILED A PETITION FOR REVIEW
WITH THE FEDERAL LABOR
RELATIONS COUNCIL WHICH WAS ACCEPTED, AND THE COUNCIL ISSUED A STAY
OF THE ARBITRATOR'S AWARD
ON APRIL 16, 1975. EXECUTIVE ORDER 11491, AS AMENDED, 3 C.F.R. 254
(1974), GOVERNS
LABOR-MANAGEMENT RELATIONS BETWEEN AGENCIES OF THE EXECUTIVE BRANCH
AND FEDERAL EMPLOYEES AND
ORGANIZATIONS REPRESENTING THOSE EMPLOYEES. SECTION 12 PROVIDES, IN
PERTINENT PART:
SEC. 12 BASIC PROVISIONS OF AGREEMENTS. EACH AGREEMENT BETWEEN AN
AGENCY AND LABOR
ORGANIZATION IS SUBJECT TO THE FOLLOWING REQUIREMENTS--
(A) IN THE ADMINISTRATION OF ALL MATTERS COVERED BY THE AGREEMENT,
OFFICIALS AND EMPLOYEES
ARE GOVERNED BY EXISTING OR FUTURE LAWS AND THE REGULATIONS OF
APPROPRIATE AUTHORITIES,
INCLUDING POLICIES SET FORTH IN THE FEDERAL PERSONNEL MANUAL; BY
PUBLISHED AGENCY POLICIES AND
REGULATIONS IN EXISTENCE AT THE TIME THE AGREEMENT WAS APPROVED; AND
BY SUBSEQUENTLY PUBLISHED
AGENCY POLICIES AND REGULATIONS REQUIRED BY LAW OR BY THE REGULATIONS
OF APPROPRIATE
AUTHORITIES, OR AUTHORIZED BY THE TERMS OF A CONTROLLING AGREEMENT AT
A HIGHER AGENCY LEVEL
. . .
THE ARBITRATOR IN HIS OPINION AND AWARD STATES THAT THE PAYMENT OF
DAMAGES IS CONSONANT
WITH THE GUIDELINES SET BY ARBITRATORS IN THE NON-FEDERAL SECTOR.
HOWEVER, THERE ARE
FUNDAMENTAL DIFFERENCES BETWEEN THE OBJECTIVES OF AND THE AUTHORITIES
GOVERNING COLLECTIVE
BARGAINING IN THE PRIVATE AND FEDERAL SECTORS. SEE 54 COMP.GEN. 921
(1975). AS NOTED ABOVE,
UNDER EXECUTIVE ORDER NO. 11491 ALL FEDERAL SECTOR COLLECTIVE
BARGAINING AGREEMENTS ARE
SUBJECT TO EXISTING OR FUTURE LAWS AND REGULATIONS. THEREFORE, WHERE
AN ARBITRATOR'S AWARD IS
NOT AUTHORIZED UNDER SUCH LAWS OR REGULATIONS, IT MAY NOT BE
IMPLEMENTED.
IN THE ABSENCE OF ANY FINDING OF DIRECT DAMAGE TO THE UNION OR ANY
EMPLOYEE AS A RESULT OF
THE AGENCY'S VIOLATION, WE BELIEVE THE AWARD MUST BE CHARACTERIZED AS
A PENALTY OR PUNITIVE
DAMAGES. WE FIND NO AUTHORITY FOR AWARDING PUNITIVE DAMAGES AGAINST
THE UNITED STATES OR ONE
OF ITS AGENCIES. MISSOURI PACIFIC RAILROAD CO. ET AL. V. AULT, 256
U.S. 554 (1921); PAINTER
V. TENNESSEE VALLEY AUTHORITY, 476 F.2D 943 (5TH CIR. 1973);
LITTLETON V. VITRO CORPORATION OF
AMERICA, 130 F.SUPP. 744 (N.D. ALA. 1955); WILSCAM V. UNITED STATES,
76 F.SUPP. 581
(D.HI. 1948). IN ADDITION, THE FEDERAL TORT CLAIMS ACT SPECIFICALLY
EXCLUDES RECOVERY FOR
PUNITIVE DAMAGES. 28 U.S.C. 2674 (1970). IT IS, THEREFORE, NOT
LEGALLY PERMISSIBLE FOR THE
AGENCY TO PAY TO THE UNION A SUM AMOUNTING TO $500 WHICH HAS BEEN
AWARDED IN THE NATURE OF
PUNITIVE DAMAGES. NOR CAN THE AWARD BE SUSTAINED AS AN ASSESSMENT OF
THE ARBITRATOR'S FEE
BECAUSE IT IS CLEARLY INTENDED AS A PENALTY, ENTIRELY SEPARATE FROM
THE ARBITRATOR'S FEES AND
EXPENSES.
ACCORDINGLY, IT IS OUR DECISION THAT THE ARBITRATOR IN THIS CASE
EXCEEDED HIS AUTHORITY IN
ORDERING THE AGENCY TO PAY THE UNION FOR FIVE DAYS OF CONSULTANT'S
PAY, AND THE AWARD MAY NOT
BE IMPLEMENTED.
BASED UPON THE FOREGOING DECISION BY THE COMPTROLLER GENERAL, WE MUST
CONCLUDE THAT, BECAUSE IT IS NOT LEGALLY PERMISSIBLE FOR THE AGENCY TO
PAY TO THE UNION MONEY WHICH HAS BEEN AWARDED IN THE NATURE OF PUNITIVE
DAMAGES, THE ARBITRATION AWARD HEREIN VIOLATES APPLICABLE LAW, AND THE
AWARD MAY NOT BE IMPLEMENTED.
FOR THE FOREGOING REASONS, WE FIND THAT, BECAUSE IT IS NOT LEGALLY
PERMISSIBLE FOR THE AGENCY TO PAY TO THE UNION MONEY WHICH HAS BEEN
AWARDED IN THE NATURE OF PUNITIVE DAMAGES, THE ARBITRATION AWARD HEREIN
VIOLATES APPLICABLE LAW, AND THE AWARD MAY NOT BE IMPLEMENTED.
ACCORDINGLY, PURSUANT TO SECTION 2411.37(B) OF THE COUNCIL'S RULES OF
PROCEDURE, WE SET ASIDE THE ARBITRATOR'S AWARD IN ITS ENTIRETY.
BY THE COUNCIL.
ISSUED: DECEMBER 31, 1975
/1/ SECTION 4 PROVIDES:
CONSULTANTS AND EXPERTS WILL NOT BE USED TO PERFORM WORK THAT COULD
BE PERFORMED BY OEO
EMPLOYEES, AND PRIOR TO ANY SUCH EMPLOYMENT, THE UNION WILL BE
APPRISED AS TO THE PERSON, HIS
QUALIFICATIONS FOR THE POSITION AND THE ROLE THIS PERSON IS TO
PERFORM.
/2/ THE AGENCY REQUESTED AND THE COUNCIL GRANTED A STAY OF THE AWARD
PENDING THE DETERMINATION OF THE APPEAL, PURSUANT TO SECTION 2411.47(D)
OF THE COUNCIL'S RULES OF PROCEDURE.
3 FLRC 841; FLRC NO. 75A-19; DECEMBER 31, 1975.
U.S. DEPARTMENT OF HEALTH, EDUCATION AND
WELFARE, SOCIAL SECURITY ADMINISTRATION,
GRAND RAPIDS, MICHIGAN
AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
(SYNOPSIS) FLRC NO. 75A-19
U.S. DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY
ADMINISTRATION, GRAND RAPIDS, MICHIGAN, ASSISTANT SECRETARY CASE NO.
52-5578 (RO). THIS APPEAL AROSE FROM A DECISION OF THE ASSISTANT
SECRETARY UPHOLDING THE DENIAL BY THE ACTING ASSISTANT REGIONAL DIRECTOR
(ARD) OF A REQUEST BY THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES
(NFFE) TO INTERVENE IN A REPRESENTATION PROCEEDING ON A PETITION FILED
BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES SEEKING CERTIFICATION
AS THE EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES IN THE UNIT INVOLVED.
THE ASSISTANT SECRETARY DENIED NFFE'S REQUEST FOR REVIEW OF THE ACTING
ARD'S DECISION ON THE GROUNDS THAT IT WAS UNTIMELY FILED UNDER THE
ASSISTANT SECRETARY'S REGULATIONS. THE COUNCIL ACCEPTED NFFE'S PETITION
FOR REVIEW ON THE GROUNDS THAT THE DECISION OF THE ASSISTANT SECRETARY
RAISED A MAJOR POLICY ISSUE, NAMELY: THE PROCEDURAL RESPONSIBILITIES OF
THE ASSISTANT SECRETARY UNDER THE ORDER, IN THE PROCESSING OF MATTERS
BROUGHT BEFORE HIM PURSUANT TO HIS REGULATIONS, TO ASSURE THAT THE
RESPECTIVE RIGHTS OF THE AFFECTED AGENCIES, LABOR ORGANIZATIONS AND
EMPLOYEES ARE PROTECTED. (REPORT NO. 72.)
COUNCIL ACTION (DECEMBER 31, 1975). THE COUNCIL DETERMINED THAT THE
ASSISTANT SECRETARY'S DENIAL OF NFFE'S INTERVENTION REQUEST AS UNTIMELY
FILED WAS NOT INCONSISTENT WITH THE PURPOSES OF THE ORDER AND THAT HE
MET HIS PROCEDURAL RESPONSIBILITIES UNDER THE ORDER TO ASSURE THAT THE
RESPECTIVE RIGHTS OF THE AGENCY, LABOR ORGANIZATIONS AND EMPLOYEES WERE
PROTECTED IN PROCESSING THE INSTANT REPRESENTATION MATTER BROUGHT BEFORE
HIM PURSUANT TO HIS REGULATIONS. ACCORDINGLY, THE COUNCIL SUSTAINED THE
DECISION OF THE ASSISTANT SECRETARY.
THIS IS AN APPEAL FROM A DECISION OF THE ASSISTANT SECRETARY
UPHOLDING THE ACTING ASSISTANT REGIONAL DIRECTOR'S DENIAL OF A REQUEST
BY THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES (NFFE) TO INTERVENE IN A
REPRESENTATION PROCEEDING. THE ASSISTANT SECRETARY DENIED NFFE'S
REQUEST FOR REVIEW OF THE ACTING ASSISTANT REGIONAL DIRECTOR'S DECISION
ON THE GROUNDS THAT IT WAS UNTIMELY FILED UNDER SECTION 202.5(C) OF THE
ASSISTANT SECRETARY'S REGULATIONS, AND THAT NFFE'S CONTENTIONS DID NOT
CONSTITUTE GOOD CAUSE FOR EXTENDING THE TIME PERIOD WITHIN WHICH
INTERVENTION MUST BE FILED. /1/
BASED UPON THE ENTIRE RECORD IN THIS CASE, THE FACTS AND
CIRCUMSTANCES ARE AS FOLLOWS: SINCE 1968, NFFE LOCAL 143 HAS BEEN THE
EXCLUSIVE REPRESENTATIVE OF THE NONPROFESSIONAL EMPLOYEES OF THE U.S.
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY
ADMINISTRATION, GRAND RAPIDS DISTRICT (THE ACTIVITY). ITS AGREEMENT
WITH THE ACTIVITY WAS DUE TO EXPIRE ON OCTOBER 4, 1974. /2/ ON AUGUST
8, THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3272, AFL-CIO
(AFGE), FILED A PETITION SEEKING CERTIFICATION AS THE EXCLUSIVE
REPRESENTATIVE FOR THE ABOVE-DESCRIBED UNIT. THE PETITION FAILED TO
NAME NFFE AS THE INCUMBENT EXCLUSIVE REPRESENTATIVE, INSTEAD SHOWING
AFGE AS THE INCUMBENT AND NAMING NFFE (WITH ADDRESS "UNKNOWN") AS AN
INTERESTED PARTY. IT ALSO SHOWED "10-5-72" AS THE DATE FOR THE
EXPIRATION OF THE CURRENT AGREEMENT. /3/ IN ADDITION, ACCORDING TO
NFFE'S UNCONTROVERTED CONTENTION AND THE ABSENCE OF ANY STATEMENT OF
SERVICE, THE PETITION WAS NOT SERVED ON NFFE PURSUANT TO SECTION
202.2(E)(4) OF THE ASSISTANT SECRETARY'S REGULATIONS. /4/ NEVERTHELESS,
OFFICERS OF NFFE LOCAL 143 WERE NOTIFIED IMMEDIATELY BY THE DETROIT AREA
OFFICE-LMSA OF THE FILING OF THE PETITION. /5/
THEREAFTER, BY LETTER DATED AUGUST 14, NFFE'S DIRECTOR OF FIELD
OPERATIONS AT NFFE NATIONAL HEADQUARTERS REQUESTED A COPY OF THE AFGE
PETITION. HIS LETTER OF REQUEST STATED:
IT IS MY UNDERSTANDING THAT AFGE HAS PETITIONED FOR A SOCIAL SECURITY
UNIT LOCATED IN GRAND
RAPIDS, MICHIGAN.
THIS OFFICE WOULD APPRECIATE RECEIVING A COPY OF THE (PETITION) . . .
SINCE WE WERE NOT
SERVED ANY PAPERWORK BY THE PETITIONER.
NFFE HEADQUARTERS LISTS NFFE LOCAL 143 AS THE EXCLUSIVE
REPRESENTATIVE FOR THE REFERENCED
UNIT.
ALTHOUGH THE REQUEST WAS INAPPROPRIATELY ADDRESSED TO THE CHICAGO
AREA OFFICE, THE CHICAGO AREA DIRECTOR FORWARDED IT TO THE DETROIT AREA
OFFICE WHICH HAS JURISDICTION OVER THE GRAND RAPIDS, MICHIGAN AREA, AND
SIMULTANEOUSLY NOTIFIED NFFE HEADQUARTERS THAT HE HAD DONE SO. THE AREA
DIRECTOR IN DETROIT SENT A COPY OF THE PETITION TO NFFE HEADQUARTERS
WITHOUT DELAY. /6/ NFFE NATIONAL HEADQUARTERS RECEIVED THE REQUESTED
PETITION ON AUGUST 26.
A NOTICE TO ALL EMPLOYEES THAT THE AFGE PETITION HAD BEEN FILED WAS
POSTED AT THE ACTIVITY FROM AUGUST 16 THROUGH AUGUST 26, IN ACCORDANCE
WITH SECTION 202.4 OF THE ASSISTANT SECRETARY'S REGULATIONS. /7/ THE
NOTICE OF PETITION EXPRESSLY STATED THAT "ANY LABOR ORGANIZATION,
INCLUDING ANY INCUMBENT LABOR ORGANIZATION, HAVING AN INTEREST IN
REPRESENTING THE EMPLOYEES BEING SOUGHT AND DESIRING TO INTERVENE IN
THIS PROCEEDING MUST SUBMIT TO THE AREA ADMINISTRATOR (REDESIGNATED AREA
DIRECTOR), WITHIN 10 DAYS FROM THE POSTING OF THIS NOTICE . . .
EVIDENCE THAT IT IS THE CURRENTLY RECOGNIZED OR CERTIFIED EXCLUSIVE
REPRESENTATIVE OF ANY OF THE EMPLOYEES INVOLVED."
ON AUGUST 27, THE DAY FOLLOWING ITS RECEIPT OF THE AFGE PETITION FROM
THE DETROIT AREA OFFICE AND THE END OF THE 10-DAY POSTING PERIOD, NFFE
HEADQUARTERS DISPATCHED A TELEGRAM REQUESTING INTERVENTION ALONG WITH A
LETTER OF CONFIRMATION AND A SECOND LETTER AMENDING THE FIRST. /8/ THE
DETROIT AREA DIRECTOR RECEIVED NFFE'S TELEGRAM ON AUGUST 28.
THE ACTING ASSISTANT REGIONAL DIRECTOR DENIED NFFE'S REQUEST FOR
INTERVENTION AS UNTIMELY FILED. NFFE APPEALED TO THE ASSISTANT
SECRETARY, CONTENDING THAT THE AFGE PETITION FAILED TO NAME NFFE AS THE
INCUMBENT EXCLUSIVE REPRESENTATIVE; THAT THE PETITION WAS NOT SERVED ON
NFFE; THAT NFFE SOUGHT INFORMATION FROM THE DEPARTMENT OF LABOR AS SOON
AS IT BECAME AWARE OF THE AFGE PETITION; THAT NFFE DID NOT RECEIVE A
COPY OF THE PETITION UNTIL AUGUST 26, 1974; AND THAT THE POSTING OF THE
NOTICE OF PETITION SHOULD NOT BE HELD TO CONSTITUTE NOTICE TO NFFE
BECAUSE OF COLLUSION BETWEEN THE PRESIDENT OF NFFE LOCAL 143 AND AFGE.
THE ASSISTANT SECRETARY FOUND THAT:
(NFFE'S CONTENTIONS) DO NOT CONSTITUTE GOOD CAUSE FOR EXTENDING THE
TIME PERIOD WITHIN
WHICH INTERVENTION MUST BE FILED. RATHER, IN AGREEMENT WITH THE
ACTING ASSISTANT REGIONAL
DIRECTOR, I FIND THAT THE POSTING OF THE PRESCRIBED NOTICE OF
PETITION CONSTITUTED SUFFICIENT
NOTICE TO AFFORD ALL INTERESTED PARTIES THE OPPORTUNITY TO INTERVENE
TIMELY IN THIS
MATTER. MOREOVER, . . . THE EVIDENCE ESTABLISHES THAT THE NFFE WAS
AWARE OF THE FILING OF THE
INSTANT PETITION PRIOR TO THE POSTING OF THE NOTIVE OF PETITION.
THUS, THE NFFE, BY LETTER
DATED AUGUST 14, 1974, MADE A REQUEST FOR A COPY OF THE INSTANT
PETITION TO THE CHICAGO AREA
OFFICE BUT MADE NO MENTION IN ITS LETTER OF ANY INTENTION REGARDING
INTERVENTION. UNDER THESE
CIRCUMSTANCES, AND AS IT IS CLEAR THAT THE NFFE DID NOT TIMELY
INTERVENE DURING THE PRESCRIBED
10-DAY POSTING PERIOD, IT IS CONCLUDED THAT (ITS) REQUEST FOR
INTERVENTION WAS UNTIMELY.
ACCORDINGLY, HE DENIED NFFE'S REQUEST FOR REVIEW. NFFE THEN APPEALED
TO THE COUNCIL, ALLEGING THAT THE ASSISTANT SECRETARY'S DECISION IS
ARBITRARY AND CAPRICIOUS AND THAT IT PRESENTS A MAJOR POLICY ISSUE, AND
REQUESTING THAT A STAY BE GRANTED.
THE COUNCIL ACCEPTED NFFE'S PETITION FOR REVIEW ON THE GROUNDS THAT
THE DECISION OF THE ASSISTANT SECRETARY RAISES A MAJOR POLICY ISSUE,
NAMELY: THE PROCEDURAL RESPONSIBILITIES OF THE ASSISTANT SECRETARY
UNDER THE ORDER, IN THE PROCESSING OF MATTERS BROUGHT BEFORE HIM
PURSUANT TO HIS REGULATIONS, TO ASSURE THAT THE RESPECTIVE RIGHTS OF THE
AFFECTED AGENCIES, LABOR ORGANIZATIONS AND EMPLOYEES ARE PROTECTED. /9/
NFFE AND AFGE FILED BRIEFS ON THE ISSUE; THE AGENCY TOOK NO POSITION IN
THE MATTER.
AS NOTED ABOVE, THE QUESTION FOR COUNCIL CONSIDERATION IS WHETHER THE
ASSISTANT SECRETARY, IN DENYING NFFE'S INTERVENTION REQUEST AS UNTIMELY
FILED, HAS MET HIS PROCEDURAL RESPONSIBILITIES UNDER THE ORDER TO ASSURE
THAT THE RESPECTIVE RIGHTS OF THE AGENCY, LABOR ORGANIZATIONS AND
EMPLOYEES ARE PROTECTED IN PROCESSING THE REPRESENTATION MATTER BROUGHT
BEFORE HIM PURSUANT TO HIS REGULATIONS. FOR THE REASONS SET FORTH
BELOW, WE ANSWER IN THE AFFIRMATIVE AND THEREFORE SUSTAIN THE ASSISTANT
SECRETARY'S DETERMINATION.
IN PRIOR CASES, THE COUNCIL HAS STATED THAT, "THE ASSISTANT SECRETARY
MUST INSURE THAT, IN THE EXERCISE OF (HIS) RESPONSIBILITIES, THE RIGHTS
GUARANTEED FEDERAL EMPLOYEES UNDER SECTION 1(A) ARE PRESERVED." /10/
WHERE IT HAS BEEN DETERMINED THAT THE ASSISTANT SECRETARY'S APPLICATION
OF HIS REGULATIONS DID NOT ASSURE THE PROTECTION OF THE RIGHTS OF THE
AGENCY, LABOR ORGANIZATIONS OR EMPLOYEES INVOLVED, THE COUNCIL HAS SET
ASIDE HIS DECISION AND REMANDED THE MATTER TO HIM FOR APPROPRIATE
ACTION. DEPARTMENT OF THE AIR FORCE, ELLSWORTH AIR FORCE BASE, SOUTH
DAKOTA, ASSISTANT SECRETARY CASE NO. 60-3412 (RO), FLRC NO. 73A-60
(OCTOBER 30, 1974), REPORT NO. 59. /11/
IN ELLSWORTH, THE AREA DIRECTOR NOTIFIED AN INCUMBENT EXCLUSIVE
REPRESENTATIVE THAT A PETITION SEEKING EXCLUSIVE RECOGNITION IN THAT
UNIT HAD BEEN FILED BY A RIVAL UNION, AND GAVE WRITTEN INSTRUCTIONS TO
THE INCUMBENT AS TO THE REQUIREMENTS FOR REQUESTING INTERVENTION IN THE
REPRESENTATION PROCEEDING UNDER SECTION 202.5 OF THE ASSISTANT
SECRETARY'S REGULATIONS. THE INSTRUCTIONS FAILED TO MENTION THAT
SIMULTANEOUS SERVICE OF THE INTERVENTION REQUEST ON ALL INTERESTED
PARTIES WAS REQUIRED. THE INCUMBENT UNION FILED A TIMELY REQUEST TO
INTERVENE, AND THE AREA DIRECTOR (DURING THE 10-DAY INTERVENTION PERIOD)
NOTIFIED THE OTHER PARTIES THAT THE REQUEST HAD BEEN GRANTED. HOWEVER,
AFTER THE CLOSE OF THE INTERVENTION PERIOD, THE ACTIVITY FILED A MOTION
TO DISMISS THE INTERVENTION REQUEST ON THE GROUND THAT THE INCUMBENT
UNION HAD FAILED TO SERVE THE REQUEST SIMULTANEOUSLY ON ALL INTERESTED
PARTIES. THE ASSISTANT REGIONAL DIRECTOR GRANTED THE MOTION TO DISMISS,
AND THE ASSISTANT SECRETARY THEREAFTER UPHELD THE ASSISTANT REGIONAL
DIRECTOR'S DENIAL OF THE REQUEST TO INTERVENE.
ON APPEAL TO THE COUNCIL, WE REAFFIRMED THE ASSISTANT SECRETARY'S
AUTHORITY UNDER SECTION 6(D) OF THE ORDER TO PRESCRIBE, INTERPRET AND
APPLY REGULATIONS (SPECIFICALLY SECTION 202.5(C)) IN CARRYING OUT HIS
FUNCTIONS AND RESPONSIBILITIES ENUMERATED IN SECTION 6(A) OF THE ORDER.
WE FURTHER STATED, HOWEVER, THAT
. . . THE ASSISTANT SECRETARY MUST APPLY HIS REGULATIONS IN SUCH A
MANNER AS TO REASONABLY
ASSURE THAT THE RIGHTS OF AFFECTED AGENCIES, LABOR ORGANIZATIONS AND
EMPLOYEES UNDER THE ORDER
ARE PROTECTED. THIS RESPONSIBILITY IS PARTICULARLY CRITICAL WHERE,
AS HERE, THE RIGHT OF
EMPLOYEES TO SELECT THEIR EXCLUSIVE REPRESENTATIVE MAY BE ABRIDGED.
IN APPLYING THE FOREGOING STANDARD TO THE FACTS AND CIRCUMSTANCES OF
THAT CASE, WE NOTED PARTICULARLY THAT THE AREA DIRECTOR HAD PROVIDED THE
INCUMBENT UNION WITH WHAT APPEARED TO BE A COMPLETE STATEMENT OF THE
REQUIREMENTS FOR INTERVENTION BUT WHICH DID NOT MENTION THE REQUIREMENT
FOR SIMULTANEOUS SERVICE, AND THAT THE AREA DIRECTOR HAD SUBSEQUENTLY
INFORMED ALL INTERESTED PARTIES, INCLUDING THE INCUMBENT UNION-- WHILE
THERE WAS STILL TIME FOR THE INCUMBENT UNION TO CORRECT ANY DEFICIENCIES
IN ITS INTERVENTION REQUEST-- THAT THE INCUMBENT WAS IN COMPLIANCE WITH
THE ASSISTANT SECRETARY'S REGULATIONS AND HAD BEEN PERMITTED TO
INTERVENE. WE CONCLUDED THAT, IN THE CIRCUMSTANCES PRESENTED, THE
ASSISTANT SECRETARY HAD NOT APPLIED HIS REGULATIONS SO AS TO ASSURE THAT
THE INCUMBENT UNION'S RIGHT TO PARTICIPATE IN THE PROCEEDING AND THE
AFFECTED EMPLOYEES' RIGHT TO SELECT THE EXCLUSIVE REPRESENTATIVE OF
THEIR CHOICE WERE PROTECTED.
BY CONTRAST, IN THE INSTANT CASE THERE IS NO BASIS FOR CONCLUDING
THAT THE ASSISTANT SECRETARY APPLIED HIS REGULATIONS SO THAT THE RIGHTS
OF THE INCUMBENT UNION OR THE UNIT EMPLOYEES WERE NOT PROTECTED. AS
PREVIOUSLY NOTED, THE DETROIT AREA OFFICE IMMEDIATELY NOTIFIED THE
PRESIDENT AND ANOTHER OFFICIAL OF NFFE LOCAL 143, THE INCUMBENT
CERTIFIED BARGAINING REPRESENTATIVE FOR THE UNIT INVOLVED, THAT AFGE HAD
FILED A PETITION SEEKING CERTIFICATION THEREIN. /12/ FURTHER, WHILE
NFFE NATIONAL HEADQUARTERS DID NOT RECEIVE A COPY OF AFGE'S PETITION
UNTIL AUGUST 26, THE LAST DAY FOR TIMELY INTERVENTION, THE ASSISTANT
SECRETARY DID NOT FAIL TO MEET HIS RESPONSIBILITIES PROPERLY. THUS, AS
PREVIOUSLY NOTED (SUPRA PAGE 3), WHILE NFFE'S LETTER OF AUGUST 14
REQUESTING A COPY OF THE PETITION WAS MISDIRECTED TO THE CHICAGO AREA
OFFICE, WHICH THEREBY CREATED A DELAY UNATTRIBUTABLE TO THE ASSISTANT
SECRETARY, THE CHICAGO AREA DIRECTOR PROMPTLY FORWARDED THE LETTER TO
THE DETROIT AREA OFFICE AND NOTIFIED NFFE HEADQUARTERS ON AUGUST 21.
THEREAFTER, NFFE NEITHER CONTACTED THE DETROIT AREA OFFICE NOR FILED A
REQUEST TO INTERVENE UNTIL AFTER THE AUGUST 26 DEADLINE. FOR HIS PART,
THE DETROIT AREA DIRECTOR CREATED NO DELAY, SINCE HE SENT NFFE A COPY OF
AFGE'S PETITION ON AUGUST 22, THE SAME DAY THAT HE RECEIVED THE REQUEST.
IN ADDITION, THE DETROIT AREA DIRECTOR INSURED THAT, CONSISTENT WITH
SECTION 202.4 OF THE ASSISTANT SECRETARY'S REGULATIONS (SUPRA NOTE 7),
THE REQUIRED NOTICE OF AFGE'S PETITION WAS POSTED AT THE ACTIVITY FOR 10
CONSECUTIVE DAYS. SUCH POSTING CONSTITUTED CONSTRUCTIVE NOTICE TO NFFE
AND, AS THE ASSISTANT SECRETARY CONCLUDED, PROVIDED "SUFFICIENT NOTICE
TO AFFORD ALL INTERESTED PARTIES THE OPPORTUNITY TO INTERVENE TIMELY IN
THIS MATTER." /13/
WHILE IT MIGHT BE CONTENDED THAT THE ASSISTANT SECRETARY'S FIELD
PERSONNEL COULD HAVE VOLUNTARILY TAKEN ADDITIONAL STEPS TO MAXIMIZE THE
POTENTIAL FOR NFFE'S INTERVENTION, OR THAT, UNDER THE TOTAL
CIRCUMSTANCES OF THE CASE, AN EXTENSION OF TIME TO INTERVENE SHOULD HAVE
BEEN GRANTED, WE CONCLUDE THAT THE ASSISTANT SECRETARY, IN THE
PROCESSING OF THIS MATTER BROUGHT BEFORE HIM PURSUANT TO HIS
REGULATIONS, FULFILLED HIS PROCEDURAL RESPONSIBILITIES UNDER THE ORDER
TO ASSURE THAT THE RESPECTIVE RIGHTS OF THE AFFECTED AGENCY, LABOR
ORGANIZATIONS, AND EMPLOYEES WERE PROTECTED AND THAT NO PREJUDICE
RESULTED FROM THE MANNER IN WHICH THE ASSISTANT SECRETARY PROCESSED THIS
CASE. /14/ THUS, IN THIS REGARD WE NOTE IN PARTICULAR THAT NFFE WAS
PROVIDED ACTUAL AND CONSTRUCTIVE NOTICE SUFFICIENT TO PERMIT
INTERVENTION BEFORE THE END OF THE PRESCRIBED 10-DAY PERIOD. THEREFORE,
WE FIND THAT THE ASSISTANT SECRETARY'S DENIAL OF NFFE'S INTERVENTION
REQUEST WAS NOT INCONSISTENT WITH THE PURPOSES OF THE ORDER. /15/
FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2411.18(B) OF THE
COUNCIL'S RULES OF PROCEDURE, WE SUSTAIN THE DECISION OF THE ASSISTANT
SECRETARY.
BY THE COUNCIL.
ISSUED: DECEMBER 31, 1975.
/1/ SECTION 202.5(C) OF THE ASSISTANT SECRETARY'S REGULATIONS
PROVIDES IN PERTINENT PART: "NO LABOR ORGANIZATION MAY PARTICIPATE TO
ANY EXTENT IN ANY REPRESENTATION PROCEEDING UNLESS IT HAS NOTIFIED THE
AREA DIRECTOR IN WRITING, . . . OF ITS DESIRE TO INTERVENE WITHIN TEN
(10) DAYS AFTER THE INITIAL DATE OF POSTING OF THE NOTICE OF PETITION .
. . UNLESS GOOD CAUSE IS SHOWN FOR EXTENDING THE PERIOD."
THE ASSISTANT SECRETARY ISSUED REVISED RULES AND REGULATIONS ON MAY
7, 1975. SINCE THE AMENDED REGULATIONS WERE ISSUED SUBSEQUENT TO THIS
APPEAL, THEY HAVE NO APPLICABILITY HEREIN; HOWEVER, SECTION 202.5(E)
HAS BEEN AMENDED TO PROVIDE THAT " . . . AN INCUMBENT EXCLUSIVE
REPRESENTATIVE SHALL BE DEEMED TO BE AN INTERVENOR IN THE PROCEEDING . .
. "
/2/ UNLESS OTHERWISE INDICATED, ALL OF THE EVENTS SET FORTH HEREIN
OCCURRED IN 1974.
/3/ SECTION 202.2(A) OF THE ASSISTANT SECRETARY'S REGULATIONS
PROVIDES IN PERTINENT PART: "A PETITION BY A LABOR ORGANIZATION FOR
EXCLUSIVE RECOGNITION . . . SHALL CONTAIN THE FOLLOWING:
(3) NAME, ADDRESS, AND TELEPHONE NUMBER OF THE RECOGNIZED OR
CERTIFIED REPRESENTATIVE, IF
ANY, AND THE DATE OF SUCH RECOGNITION OR CERTIFICATION AND THE
EXPIRATION DATE OF ANY
APPLICABLE AGREEMENT, IF KNOWN TO PETITIONER . . . "
/4/ SECTION 202.2(E)(4) OF THE ASSISTANT SECRETARY'S REGULATIONS, AT
THAT TIME, PROVIDED:
SIMULTANEOUSLY WITH THE FILING OF A PETITION, COPIES OF THE PETITION
. . . SHALL BE SERVED
BY THE PETITIONER ON ALL KNOWN INTERESTED PARTIES, AND A WRITTEN
STATEMENT OF SUCH SERVICE
SHALL BE FILED WITH THE AREA ADMINISTRATOR . . .
/5/ IN A LETTER DATED SEPTEMBER 13, TO IRVING I. GELLER, NFFE'S
GENERAL COUNSEL, THE AREA DIRECTOR FOR THE DETROIT AREA OFFICE-LMSA,
STATED: " . . . I WOULD LIKE TO POINT OUT THAT MR. ARTHUR NEWELL,
PRESIDENT OF NFFE, LOCAL UNION 143, AND MS. DOROTHY ALLEN, FIFTH VICE
PRESIDENT OF THE LOCAL, WERE NOTIFIED IMMEDIATELY BY TELEPHONE OF OUR
RECEIPT OF AFGE'S PETITION."
/6/ THE CHICAGO AREA OFFICE RECEIVED THE NFFE REQUEST ON AUGUST 16
AND SENT IT TO DETROIT ON AUGUST 20. NFFE RECEIVED NOTICE THEREOF ON
AUGUST 21. THE DETROIT AREA OFFICE RECEIVED AND COMPLIED WITH THE
REQUEST ON AUGUST 22.
/7/ SECTION 202.4 PROVIDES, IN PERTINENT PART:
INVESTIGATION OF PETITION AND POSTING OF NOTICE OF PETITION; ACTION
BY ASSISTANT REGIONAL
DIRECTOR.
(A) UPON THE REQUEST OF THE AREA DIRECTOR, AFTER THE FILING OF A
PETITION, THE ACTIVITY
SHALL POST COPIES OF A NOTICE TO ALL EMPLOYEES IN PLACES WHERE
NOTICES ARE NORMALLY POSTED
AFFECTING THE EMPLOYEES IN THE UNIT INVOLVED IN THE PROCEEDING.
(B) SUCH NOTICE SHALL SET FORTH:
(1) THE NAME OF THE PETITIONER;
(2) THE DESCRIPTION OF THE UNIT INVOLVED;
(3) IF APPROPRIATE, THE PROPOSED CLARIFICATION OF UNIT OR THE
PROPOSED AMENDMENT OF
CERTIFICATION OR RECOGNITION; AND
(4) A STATEMENT THAT ALL INTERESTED PARTIES ARE TO ADVISE THE AREA
DIRECTOR IN WRITING OF
THEIR INTEREST OR POSITION WITHIN TEN (10) DAYS FROM THE DATE OF
POSTING OF SUCH NOTICE.
(C) THE NOTICE SHALL REMAIN POSTED FOR A PERIOD OF TEN (10) DAYS.
THE NOTICE SHALL BE
POSTED CONSPICUOUSLY AND SHALL NOT BE COVERED BY OTHER MATERIAL,
ALTERED, OR DEFACED.
/8/ THE SECOND LETTER ASSERTED THAT THE AFGE PETITION SHOULD BE
DISMISSED AS UNTIMELY FILED ON THE BASIS OF AN AGREEMENT BAR.
/9/ HOWEVER, THE COUNCIL DENIED NFFE'S REQUEST FOR A STAY AS
UNWARRANTED UNDER SECTION 2411.47(C)(1) OF ITS RULES, BASED UPON THE
FACTS AND CIRCUMSTANCES PRESENTED.
/10/ ILLINOIS AIR NATIONAL GUARD, 182ND TACTICAL AIR SUPPORT GROUP,
A/SLMR NO. 105, FLRC NO. 71A-59 (NOVEMBER 17, 1972), REPORT NO. 30; AND
VETERANS ADMINISTRATION HOSPITAL, BRECKSVILLE, OHIO, ASSISTANT SECRETARY
CASE NO. 53-4156, FLRC NO. 72A-9 (APRIL 17, 1973), REPORT NO. 36, BOTH
INVOLVING-- AS HERE-- ASSISTANT SECRETARY DETERMINATIONS IN
REPRESENTATION PROCEEDINGS PURSUANT TO HIS RESPONSIBILITIES UNDER
SECTION 6 OF THE ORDER.
/11/ COMPARE VETERANS ADMINISTRATION HOSPITAL, BUTLER, PA., ASSISTANT
SECRETARY CASE NO. 21-3923 (RO), FLRC NO. 74A-5 (JUNE 18, 1974), REPORT
NO. 54, WHEREIN THE COUNCIL DENIED AN INCUMBENT UNION'S APPEAL FROM A
DECISION OF THE ASSISTANT SECRETARY THAT ITS UNTIMELY REQUEST TO
INTERVENE IN A REPRESENTATION PROCEEDING SHOULD BE REJECTED, FINDING
THAT SUCH DECISION DID NOT APPEAR ARBITRARY AND CAPRICIOUS AND DID NOT
PRESENT A MAJOR POLICY ISSUE. THE ASSISTANT SECRETARY FOUND THAT GOOD
CAUSE HAD NOT BEEN SHOWN FOR EXTENDING THE PERIOD FOR TIMELY
INTERVENTION, NOTING THAT THE LABOR ORGANIZATION SEEKING EXCLUSIVE
RECOGNITION HAD SERVED THE INCUMBENT UNION WITH A COPY OF ITS PETITION
SIMULTANEOUSLY WITH THE FILING THEREOF; THAT THE AREA DIRECTOR HAD SENT
A LETTER NOTIFYING BOTH THE ACTIVITY AND THE INCUMBENT UNION OF THE
PETITION; AND THAT THE OFFICIAL NOTICE OF PETITION HAD BEEN POSTED AT
THE ACTIVITY AS REQUIRED BY THE DEPARTMENT OF LABOR, SUCH NOTICE
ADVISING ANY INCUMBENT UNION TO FILE A REQUEST TO INTERVENE WITHIN 10
DAYS OF THE POSTING. THE COUNCIL FOUND THAT THE INCUMBENT UNION'S
APPEAL "PRESENTS NO PERSUASIVE REASONS FOR OVERTURNING THE ASSISTANT
SECRETARY'S WELL-ESTABLISHED POLICY THAT INCUMBENT UNIONS MUST TIMELY
INTERVENE IN REPRESENTATION ELECTIONS PURSUANT TO THE REQUIREMENTS OF
THE RULES OF THE ASSISTANT SECRETARY." (AS PREVIOUSLY NOTED, SUPRA NOTE
1, THIS POLICY HAS RECENTLY BEEN CHANGED SO THAT AN INCUMBENT EXCLUSIVE
REPRESENTATIVE IS DEEMED TO BE AN INTERVENOR IN THE PROCEEDING.)
/12/ NFFE DOES NOT DISPUTE THAT SUCH NOTICE WAS PROVIDED, BUT
CONTENDS THAT IT WAS INEFFECTIVE SINCE THE PRESIDENT OF NFFE LOCAL 143
WAS IN COLLUSION WITH AFGE'S ATTEMPT TO REPRESENT THE UNIT EMPLOYEES.
HOWEVER, ANY SUCH INTERNAL UNION DIFFICULTIES WHICH MAY HAVE RESULTED IN
A BREAKDOWN OF COMMUNICATIONS BETWEEN NFFE LOCAL 143 AND NFFE NATIONAL
HEADQUARTERS CANNOT BE ATTRIBUTABLE TO THE ASSISTANT SECRETARY, WHOSE
PERSONNEL PROPERLY PROVIDED PROMPT ACTUAL NOTICE OF AFGE'S PETITION TO
THE CERTIFIED BARGAINING REPRESENTATIVE.
/13/ MOREOVER, APART FROM THE ACTUAL NOTICE RECEIVED BY NFFE LOCAL
143, NFFE NATIONAL HEADQUARTERS HAD ACTUAL NOTICE OF AFGE'S PETITION
EVEN BEFORE THE NOTICE OF PETITION WAS POSTED AT THE ACTIVITY ON AUGUST
16, SINCE IT REQUESTED A COPY OF THE PETITION BY LETTER DATED AUGUST 14.
YET, NFFE'S LETTER MADE NO MENTION OF ANY INTENTION TO INTERVENE.
/14/ WE DO NOT PASS UPON NFFE'S CONTENTION, WHICH WAS NEITHER TIMELY
RAISED BEFORE THE ASSISTANT SECRETARY NOR CONSIDERED BY HIM, THAT AFGE'S
PETITION HEREIN WAS UNTIMELY FILED BY VIRTUE OF AN AGREEMENT BAR.
/15/ UNDER THE ASSISTANT SECRETARY'S REVISED REGULATIONS (SUPRA NOTE
1) MAKING INCUMBENT EXCLUSIVE REPRESENTATIVES "AUTOMATIC" INTERVENORS IN
REPRESENTATION PROCEEDINGS, IT IS UNLIKELY THAT A SITUATION SUCH AS THIS
ONE WILL ARISE IN THE FUTURE.
3 FLRC 839; FLRC NO. 75A-97; DECEMBER 24, 1975.
MR. BILLY B. SWEIGART
PRESIDENT, FEDERAL EMPLOYEES
METAL TRADES COUNCIL
P.O. BOX 2195
VALLEJO, CALIFORNIA 94592
(SYNOPSIS) FLRC NO. 75A-97
FEDERAL EMPLOYEES METAL TRADES COUNCIL OF VALLEJO, CALIFORNIA AND
MARE ISLAND NAVAL SHIPYARD. THE UNION FILED A PETITION FOR REVIEW OF A
NEGOTIABILITY DISPUTE. IT APPEARED FROM THE RECORD THAT THE PARTIES HAD
ENTERED INTO A WRITTEN AGREEMENT CONTAINING A PROVISION IDENTICAL TO
THAT ALLEGED BY THE PETITION TO BE IN DISPUTE; THE AGREEMENT EXPIRES ON
JULY 25, 1977; AND, INSOFAR AS HERE PERTINENT, IS SUBJECT TO REOPENING
ONLY UPON MUTUAL CONSENT OF THE PARTIES.
COUNCIL ACTION (DECEMBER 24, 1975). RELYING ON ITS DECISION IN AFGE
LOCAL 1199 AND COMMANDER, 57TH COMBAT SUPPORT GROUP (TAC), NELLIS AIR
FORCE BASE, LAS VEGAS, NEVADA, FLRC NO. 73A-47 (REPORT NO. 46), AND THE
CASES CITED THEREIN, THE COUNCIL FOUND THAT THE ISSUES RAISED IN THE
UNION'S APPEAL HAD BEEN RENDERED MOOT BY THE AGREEMENT BETWEEN THE
PARTIES AND DISMISSED THE UNION'S PETITION.
DEAR MR. SWEIGART:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF A
NEGOTIABILITY DISPUTE, AND YOUR SUBMISSION SUPPLEMENTING THAT PETITION,
IN THE ABOVE-ENTITLED CASE. YOU NOTE THAT WHILE YOU BELIEVE THE DISPUTE
HAS BEEN MOOTED, YOUR APPEAL IS INTENDED TO PROTECT YOUR INTERESTS AND
TO PREVENT AN AGENCY RULING OF NONNEGOTIABILITY FROM GOING UNCHALLENGED.
IT APPEARS FROM THE ENTIRE RECORD THAT THE PARTIES TO THIS CASE HAVE
ENTERED INTO A WRITTEN COLLECTIVE BARGAINING AGREEMENT CONTAINING A
PROVISION IDENTICAL TO THAT ALLEGED BY YOUR PETITION TO BE IN DISPUTE.
THAT AGREEMENT EXPIRES ON JULY 25, 1977, AND, INSOFAR AS HERE PERTINENT,
IS SUBJECT TO REOPENING ONLY UPON MUTUAL CONSENT OF THE PARTIES.
THE COUNCIL HAS INDICATED IN PREVIOUS DECISIONS THAT A NEGOTIABILITY
DISPUTE IS RENDERED MOOT WHEN THE PARTIES EXECUTE A COLLECTIVE
BARGAINING AGREEMENT WHICH DEALS WITH THE DISPUTED MATTER OTHERWISE
SUBJECT TO COUNCIL REVIEW AND THE AGREEMENT CONTAINS NEITHER A SAVING
NOR AN OPERATIVE REOPENING CLAUSE. SEE AFGE LOCAL 1199 AND COMMANDER,
57TH COMBAT SUPPORT GROUP (TAC), NELLIS AIR FORCE BASE, LAS VEGAS,
NEVADA, FLRC NO. 73A-47 (DECEMBER 12, 1973), REPORT NO. 46, AND CASES
CITED THEREIN. THOSE CASES ARE CONSIDERED CONTROLLING OVER THE INSTANT
DISPUTE.
ACCORDINGLY, AS THE COUNCIL FINDS THAT THE ISSUES RAISED IN YOUR
APPEAL HAVE BEEN RENDERED MOOT BY THE AGREEMENT BETWEEN THE PARTIES,
YOUR PETITION IS HEREBY DISMISSED.
BY THE COUNCIL.
CC: S. M. FOSS
NAVY
3 FLRC 835; FLRC NO. 75A-65; DECEMBER 24, 1975.
MR. S .B. PRANGER
DIRECTOR OF PERSONNEL
OFFICE OF THE SECRETARY
U.S. DEPARTMENT OF AGRICULTURE
WASHINGTON, D.C. 20250
(SYNOPSIS) FLRC NO. 75A-65
UNITED STATES DEPARTMENT OF AGRICULTURE AND AGRICULTURAL RESEARCH
SERVICE, A/SLMR NO. 519. THE ASSISTANT SECRETARY, UPON A COMPLAINT
FILED BY NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1552, FOUND, IN
PERTINENT PART, THAT THE AGRICULTURAL RESEARCH SERVICE'S CONDUCT IN
DISAPPROVING AN AGREEMENT OF THE LOCAL PARTIES WAS VIOLATIVE OF SECTION
19(A)(6) OF THE ORDER. THE AGENCY APPEALED TO THE COUNCIL, CONTENDING
ESSENTIALLY THAT THE ASSISTANT SECRETARY'S DECISION APPEARED ARBITRARY
AND CAPRICIOUS AND PRESENTED MAJOR POLICY ISSUES. THE AGENCY ALSO
REQUESTED A STAY OF THE ASSISTANT SECRETARY'S DECISION.
COUNCIL ACTION (DECEMBER 24, 1975). THE COUNCIL HELD THAT THE
AGENCY'S PETITION DID NOT MEET THE REQUIREMENTS OF THE COUNCIL'S RULES
GOVERNING REVIEW; THAT IS, THE DECISION OF THE ASSISTANT SECRETARY DID
NOT APPEAR ARBITRARY AND CAPRICIOUS OR PRESENT MAJOR POLICY ISSUES.
ACCORDINGLY, SINCE THE AGENCY'S PETITION FAILED TO MEET THE REQUIREMENTS
FOR REVIEW PROVIDED IN SECTION 2411.12 OF THE COUNCIL'S RULES OF
PROCEDURE, THE COUNCIL DENIED REVIEW OF THE PETITION. THE COUNCIL
LIKEWISE DENIED THE AGENCY'S REQUEST FOR A STAY OF THE ASSISTANT
SECRETARY'S DECISION.
DEAR MR. PRANGER:
THE COUNCIL HAS CAREFULLY CONSIDERED THE AGENCY'S PETITION FOR REVIEW
AND REQUEST FOR A STAY OF THE ASSISTANT SECRETARY'S DECISION, AND THE
UNION'S OPPOSITION THERETO, IN THE ABOVE-ENTITLED CASE.
THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1552 (THE UNION)
FILED A COMPLAINT IN THIS CASE ALLEGING A VIOLATION OF SECTION 19(A)(6)
OF THE ORDER BY THE DIRECTOR OF PERSONNEL OF THE AGRICULTURAL RESEARCH
SERVICE (ARS). THE COMPLAINT ALLEGED, IN PERTINENT PART, THAT THE
DIRECTOR OF PERSONNEL OF ARS HAD DISAPPROVED AN AGREEMENT NEGOTIATED BY
THE UNION AND A LOCAL ACTIVITY UNDER ARS EVEN THOUGH NO AUTHORITY TO
APPROVE OR DISAPPROVE SUCH AGREEMENTS UNDER SECTION 15 OF THE ORDER HAD
BEEN DELEGATED TO HIM. ACCORDING TO THE FINDINGS OF FACT OF THE
ADMINISTRATIVE LAW JUDGE, AS ADOPTED BY THE ASSISTANT SECRETARY, THE
LOCAL PARTIES SIGNED AN AGREEMENT AND TRANSMITTED IT TO ARS HEADQUARTERS
ON OCTOBER 13, 1972. THE DIRECTOR OF THE PERSONNEL DIVISION OF ARS
RETURNED THE AGREEMENT TO THE LOCAL PARTIES ON NOVEMBER 10, 1972, WITH
SOME NINETEEN REQUIRED CHANGES. A REVISED AGREEMENT INCORPORATING THE
CHANGES WAS SIGNED BY THE LOCAL PARTIES ON MAY 25, 1973, AND TRANSMITTED
BY ARS TO THE DEPARTMENT FOR APPROVAL ON JUNE 11, 1973. ON JULY 23,
1973, THE ASSISTANT DIRECTOR OF PERSONNEL ADVISED ARS THAT FURTHER
REVISIONS WOULD BE REQUIRED AND THE LOCAL PARTIES WERE SO ADVISED ON
AUGUST 3, 1973. THE ALJ FURTHER FOUND THAT THE DESIGNATED OFFICER FOR
SECTION 15 REVIEW OF AGREEMENTS IS THE DEPARTMENT'S DIRECTOR OF
PERSONNEL AND THAT ARS HAS NOT BEEN DELEGATED ANY AUTHORITY TO APPROVE
AGREEMENTS UNDER SECTION 15 OF THE EXECUTIVE ORDER.
THE ASSISTANT SECRETARY, IN AGREEMENT WITH THE ALJ, FOUND, IN
PERTINENT PART, THAT THE ARS' CONDUCT WAS VIOLATIVE OF SECTION 19(A)(6)
OF THE ORDER. IN SO DOING, HE REJECTED THE ARS' CONTENTION THAT THE
ARS' PERSONNEL DIRECTOR WAS ACTING AS AN APPROPRIATE APPROVAL AUTHORITY
UNDER SECTION 15 OF THE ORDER WHEN HE RETURNED THE LOCALLY SIGNED
AGREEMENT TO THE PARTIES. HE FOUND THAT THE INTERPRETATION AND
APPLICATION OF THE DEPARTMENT PERSONNEL MANUAL BY THE ARS TO ESTABLISH A
DUAL LEVEL OF APPROVAL FOR EXECUTED NEGOTIATED AGREEMENTS AND ARS'
RETURNING THE AGREEMENT TO THE LOCAL PARTIES WAS INCONSISTENT WITH THE
INTENT OF SECTION 15 AND WITH THE ARS' OBLIGATION UNDER SECTION 11(A) TO
MEET AT REASONABLE TIMES AND CONFER IN GOOD FAITH. THE ASSISTANT
SECRETARY CONCLUDED THAT THE ESTABLISHMENT OF INTERMEDIATE, INDEPENDENT
APPROVAL AUTHORITIES IS INCONSISTENT WITH THE INTENT OF SECTION 15.
HOWEVER, HE NOTED THAT AN AGENCY MAY CHOOSE TO DELEGATE ITS APPROVAL
AUTHORITY TO AN INTERMEDIATE LEVEL, OR, IN THE ALTERNATIVE, TO PROVIDE
THAT AN INTERMEDIATE OFFICIAL REVIEW THE EXECUTED AGREEMENT AND FORWARD
IT, WITH ANY COMMENT, TO THE DESIGNATED SECTION 15 APPROVAL AUTHORITY.
IN YOUR PETITION FOR REVIEW, YOU CONTEND ESSENTIALLY THAT THE
ASSISTANT SECRETARY'S DECISION IN THIS CASE APPEARS ARBITRARY AND
CAPRICIOUS AND PRESENTS MAJOR POLICY ISSUES WITH RESPECT TO: (1)
WHETHER THE ARS HAS AGENCY STATUS WITHIN THE MEANING OF THE ORDER, AND
SPECIFICALLY, IN THIS REGARD, WHETHER THE ASSISTANT SECRETARY'S FINDING
THAT IT DOES NOT IS CONTRARY TO PREVIOUS RULINGS OF THE COUNCIL; (2)
WHETHER SECTION 14 OF THE ORDER PROHIBITS MORE THAN ONE LEVEL OF REVIEW
OF NEGOTIATED AGREEMENTS, AND SPECIFICALLY, WHETHER THE ASSISTANT
SECRETARY'S FINDING IN THIS REGARD IS FOUNDED UPON ANY PREVIOUS CASE LAW
OR LEGITIMATE RATIONALE; AND (3) WHETHER THE ASSISTANT SECRETARY HAS
THE AUTHORITY TO DETERMINE THAT AGENCY REGULATIONS ARE CONTRARY TO THE
ORDER OR, ALTERNATIVELY, TO REQUIRE THAT THEY BE INTERPRETED IN A
PARTICULAR WAY WHEN THE QUESTION OF THEIR INTERPRETATION OR APPLICATION
IS NOT RAISED IN CONNECTION WITH AN ALLEGED UNILATERAL CHANGE IN, OR
ADDITION TO, PERSONNEL POLICIES AND PRACTICES OR MATTERS AFFECTING
WORKING CONDITIONS, AND WHETHER THE ASSISTANT SECRETARY EXCEEDED HIS
AUTHORITY IN SO FINDING.
IN THE COUNCIL'S VIEW, YOUR PETITION FOR REVIEW OF THE ASSISTANT
SECRETARY'S DECISION DOES NOT MEET THE REQUIREMENTS OF THE COUNCIL'S
RULES GOVERNING REVIEW; THAT IS, THE DECISION OF THE ASSISTANT
SECRETARY DOES NOT APPEAR ARBITRARY AND CAPRICIOUS OR PRESENT MAJOR
POLICY ISSUES.
WITH RESPECT TO YOUR FIRST CONTENTION, THE COUNCIL IS OF THE OPINION
THAT IN THE CIRCUMSTANCES PRESENTED, NOTING PARTICULARLY THAT THE
ASSISTANT SECRETARY WAS MERELY OBSERVING THAT THE AGENCY'S USE OF THE
TERM "AGENCY" DIFFERS FROM THE DEFINITION OF "AGENCY" CONTAINED IN
SECTION 2(A) OF THE ORDER, THE SUBJECT DECISION DOES NOT RAISE A MAJOR
POLICY ISSUE WARRANTING COUNCIL REVIEW. MOREOVER, IT DOES NOT APPEAR
THAT THE ASSISTANT SECRETARY'S OBSERVATION IN THIS REGARD CONFLICTS WITH
COUNCIL PRECEDENT OR THAT HIS DECISION IS IN ANY OTHER MANNER ARBITRARY
AND CAPRICIOUS.
AS TO YOUR SECOND CONTENTION, IN OUR VIEW THE ASSISTANT SECRETARY'S
CONCLUSION THAT ARS VIOLATED SECTION 19(A)(6) OF THE ORDER BY REQUIRING
TWO LEVELS OF APPROVAL OF NEGOTIATED AGREEMENTS WITH EACH LEVEL HAVING
THE AUTHORITY TO RETURN SUCH AGREEMENTS FOR CONFORMANCE WITH APPLICABLE
LAWS, THE ORDER, EXISTING PUBLISHED AGENCY POLICIES AND REGULATIONS AND
REGULATIONS OF OTHER APPROPRIATE AUTHORITIES IS NOT WITHOUT REASONABLE
JUSTIFICATION AND PRESENTS NO MAJOR POLICY ISSUE. IN SO RULING, WE
CONSTRUE THE ASSISTANT SECRETARY'S DECISION AS PROVIDING THAT AN AGENCY
MAY ESTABLISH AS MANY INTERMEDIATE LEVELS OF REVIEW AS DESIRED, UNDER
THE AMENDED ORDER, AS LONG AS (1) THE ENTIRE REVIEW PROCESS IS COMPLETED
WITHIN A SINGLE 45 DAY PERIOD AS PROVIDED IN SECTION 15 AND (2) SUCH
INTERMEDIATE LEVELS OF REVIEW DEFER FINAL ACTION ON THE AGREEMENT TO THE
SINGLE DESIGNATED SECTION 15 REVIEW AUTHORITY. (IN THIS REGARD, WHILE
SUCH INTERMEDIATE LEVEL REVIEW OFFICIAL MAY SEND AN ADVISORY OPINION TO
THE LOCAL LEVEL WHILE FORWARDING HIS COMMENTS TO THE APPROPRIATE SECTION
15 AUTHORITY, THE PARTIES TO AN AGREEMENT IN SUCH A SITUATION WOULD HAVE
NO OBLIGATION TO RENEW NEGOTIATIONS UNTIL A FINAL REVIEW IS ACCOMPLISHED
AND THE AGREEMENT REMANDED TO THEM BY THE DESIGNATED SECTION 15 REVIEW
AUTHORITY.)
FINALLY, WITH RESPECT TO YOUR THIRD CONTENTION THAT THE ASSISTANT
SECRETARY EXCEEDED HIS AUTHORITY BY INTERPRETING AGENCY REGULATIONS IN
THE CONTEXT OF THE INSTANT PROCEEDING, IN THE COUNCIL'S VIEW, NOTING
PARTICULARLY THAT THE ASSISTANT SECRETARY IS CLEARLY AUTHORIZED UNDER
SECTIONS 6 AND 19(A) OF THE ORDER TO DECIDE WHETHER AGENCY MANAGEMENT
HAS VIOLATED THE ORDER INCLUDING DECIDING WHETHER, IN APPROPRIATE
CIRCUMSTANCES, THE ISSUANCE, INTERPRETATION OR APPLICATION OF AGENCY
REGULATIONS CONSTITUTES AN UNFAIR LABOR PRACTICE, THE ASSISTANT
SECRETARY'S DECISION IN THIS REGARD DOES NOT APPEAR ARBITRARY AND
CAPRICIOUS NOR PRESENT A MAJOR POLICY ISSUE WARRANTING COUNCIL REVIEW.
ACCORDINGLY, SINCE YOUR PETITION FAILS TO MEET THE REQUIREMENTS FOR
REVIEW PROVIDED BY SECTION 2411.12 OF THE COUNCIL'S RULES OF PROCEDURE,
REVIEW OF YOUR PETITION IS HEREBY DENIED. THE REQUEST FOR A STAY OF THE
ASSISTANT SECRETARY'S DECISION IS LIKEWISE DENIED.
CC: A/SLMR
DEPT. OF LABOR
J. COOPER
NFFE
3 FLRC 831; FLRC NO. 75A-61; DECEMBER 24, 1975.
MR. ROBERT E. EDWARDS
ASSOCIATE GENERAL COUNSEL
CHIEF, LABOR RELATIONS LAW BRANCH
HQ ARMY AND AIR FORCE EXCHANGE SERVICE
DEPARTMENTS OF THE ARMY AND THE AIR FORCE
DALLAS, TEXAS 75222
(SYNOPSIS) FLRC NO. 75A-61
ARMY AND AIR FORCE EXCHANGE SERVICE, MACDILL AIR FORCE BASE EXCHANGE,
MACDILL AIR FORCE BASE, FLORIDA, A/SLMR NO. 514. THE ASSISTANT
SECRETARY, UPON A COMPLAINT FILED BY LOCAL 2624, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES (AFGE), FOUND THAT THE AGENCY VIOLATED SECTION
19(A)(1) AND (5) OF THE ORDER. THE AGENCY APPEALED TO THE COUNCIL,
CONTENDING THAT THE ASSISTANT SECRETARY ACTED ARBITRARILY AND
CAPRICIOUSLY AND THAT HIS DECISION RAISED MAJOR POLICY ISSUES.
COUNCIL ACTION (DECEMBER 24, 1975). THE COUNCIL HELD THAT THE
AGENCY'S PETITION DID NOT MEET THE REQUIREMENTS OF SECTION 2411.12 OF
THE COUNCIL'S RULES; THAT IS, THE DECISION OF THE ASSISTANT SECRETARY
DOES NOT PRESENT A MAJOR POLICY ISSUE OR APPEAR IN ANY MANNER ARBITRARY
AND CAPRICIOUS. ACCORDINGLY, THE COUNCIL DENIED THE AGENCY'S PETITION
FOR REVIEW.
DEAR MR. EDWARDS:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
IN THIS CASE, LOCAL 2624, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
(AFGE), FILED A COMPLAINT AGAINST THE ARMY AND AIR FORCE EXCHANGE
SERVICE, MACDILL AIR FORCE BASE EXCHANGE, MACDILL AIR FORCE BASE,
FLORIDA (THE ACTIVITY). THE COMPLAINT ALLEGED THAT THE ACTIVITY
VIOLATED SECTION 19(A)(1) AND (5) OF THE ORDER BY ITS UNILATERAL
DECISION TO REVOKE DUES AUTHORIZATIONS FOR THREE EMPLOYEES WHO HAD BEEN
MEMBERS OF A 300-EMPLOYEE UNIT REPRESENTED EXCLUSIVELY BY AFGE AT THE
ACTIVITY PRIOR TO BEING ADMINISTRATIVELY TRANSFERRED TO A NEWLY CREATED
ORGANIZATIONAL ENTITY, THE CENTRAL FLORIDA AREA EXCHANGE (AREA EXCHANGE)
WITHIN THE SOUTHEAST EXCHANGE REGION OF AAFES-CONUS.
THE ASSISTANT SECRETARY, IN AGREEMENT WITH THE ADMINISTRATIVE LAW
JUDGE, FOUND THAT THE ACTIVITY VIOLATED SECTION 19(A)(1) AND (5) OF THE
ORDER. THE ASSISTANT SECRETARY FOUND THAT THE THREE MAINTENANCE
EMPLOYEES WHO WERE THE SUBJECT OF THE COMPLAINT REMAINED WITHIN THE UNIT
EXCLUSIVELY REPRESENTED BY AFGE, AND THAT, ACCORDINGLY, THEY CONTINUED
TO BE REPRESENTED BY AFGE IN THE EXCLUSIVELY RECOGNIZED BARGAINING UNIT
SUBSEQUENT TO THE ESTABLISHMENT OF THE AREA EXCHANGE. HE FOUND,
THEREFORE, THAT THE ACTIVITY'S CONDUCT CONSTITUTED AN IMPROPER
WITHDRAWAL OF RECOGNITION FROM THE UNION IN DEROGATION OF THE ACTIVITY'S
OBLIGATION "TO ACCORD APPROPRIATE RECOGNITION TO A LABOR ORGANIZATION
QUALIFIED FOR SUCH RECOGNITION" AND THUS CONSTITUTED A VIOLATION OF
SECTION 19(A)(5) OF THE ORDER. MOREOVER, THE ASSISTANT SECRETARY FOUND
THAT SUCH CONDUCT INTERFERED WITH, RESTRAINED, OR COERCED EMPLOYEES IN
THE EXERCISE OF THEIR RIGHTS ASSURED BY THE ORDER IN VIOLATION OF
SECTION 19(A)(1).
IN YOUR PETITION FOR REVIEW ON BEHALF OF THE ACTIVITY, YOU CONTEND
THAT THE ASSISTANT SECRETARY ACTED ARBITRARILY AND CAPRICIOUSLY BY
GIVING PRECEDENTIAL VALUE TO HIS DECISION IN THE DSA CASE /1/ WHICH THE
FEDERAL LABOR RELATIONS COUNCIL HAD ACCEPTED FOR REVIEW ON THE GROUNDS
THAT IT PRESENTED CERTAIN MAJOR POLICY ISSUES, WHICH MAJOR POLICY ISSUES
ARE SUBSTANTIALLY IDENTICAL TO THE CONTROLLING ISSUES IN THE INSTANT
CASE. YOU CONTEND FURTHER THAT THE ASSISTANT SECRETARY'S DECISION
RAISES A MAJOR POLICY ISSUE IN THAT HE APPLIED THE "CO-EMPLOYER"
PRINCIPLE HEREIN, A PRINCIPLE WHICH THE COUNCIL HAS ALREADY DESCRIBED AS
PRESENTING MAJOR POLICY ISSUES. FINALLY, YOU CONTEND THAT A MAJOR
POLICY ISSUE IS RAISED IN THAT THE INSTANT DECISION ADDRESSES, BY
INDIRECT REFERENCE, THE APPLICATION OF THE COUNCIL'S DECISION IN THE
AVSCOM CASE, /2/ A POINT UNDER REVIEW BY THE COUNCIL IN CONNECTION WITH
THE DSA CASE.
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW DOES NOT MEET THE
REQUIREMENTS OF SECTION 2411.12 OF THE COUNCIL'S RULES; THAT IS, THE
DECISION OF THE ASSISTANT SECRETARY DOES NOT PRESENT A MAJOR POLICY
ISSUE OR APPEAR IN ANY MANNER ARBITRARY AND CAPRICIOUS.
EACH OF YOUR CONTENTIONS IS GROUNDED, EITHER EXPRESSLY OR IMPLIEDLY,
ON THE PREMISE THAT THE ASSISTANT SECRETARY "ADOPTED WITHOUT CHANGE" THE
RECOMMENDED DECISION AND ORDER OF THE ALJ IN THE PRESENT CASE. BASED
UPON THIS PREMISE, YOU CONTEND THAT THE ASSISTANT SECRETARY ENDORSED THE
ALJ'S APPLICATION, IN THE INSTANT CASE, OF THE PRINCIPLES ESTABLISHED IN
THE ASSISTANT SECRETARY'S DECISION IN DSA (AND, HENCE BY INDIRECT
REFERENCE, BY HIS APPLICATION OF THE COUNCIL'S DECISION IN AVSCOM
THEREIN). HOWEVER, THE ASSISTANT SECRETARY ADOPTED THE ALJ'S FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS ONLY TO THE EXTENT THAT THEY WERE
CONSISTENT WITH HIS OWN CONCLUSIONS. THE FINDINGS AND CONCLUSIONS OF
THE ASSISTANT SECRETARY ARE NOT BASED ON EITHER THE "CO-EMPLOYER"
PRINCIPLE SET FORTH IN HIS DECISION IN THE DSA CASE OR UPON AN IMPROPER
APPLICATION OF THE COUNCIL'S DECISION IN THE AVSCOM CASE. IN FACT, THE
ASSISTANT SECRETARY DID NOT RELY UPON OR CITE EITHER CASE IN HIS
DECISION HEREIN. RATHER, AS STATED ABOVE, THE ASSISTANT SECRETARY
CONCLUDED, BASED ON THE FACTS, THAT THE DISPUTED EMPLOYEES REMAINED IN
AN EXISTING UNIT OF EMPLOYEES OF THE ARMY AIR FORCE EXCHANGE SERVICE.
/3/ MOREOVER, THE ASSISTANT SECRETARY CLEARLY POSSESSES DISCRETIONARY
AUTHORITY TO DECIDE A CASE BEFORE HIM EVEN THOUGH IT ARGUABLY RAISES
ISSUES SIMILAR TO THOSE POSED BY AN EARLIER DECISION CURRENTLY BEFORE
THE COUNCIL ON APPEAL. ACCORDINGLY, NO MAJOR POLICY ISSUE IS PRESENTED
WARRANTING COUNCIL REVIEW. MOREOVER, THE ASSISTANT SECRETARY'S DECISION
IS NOT WITHOUT REASONABLE JUSTIFICATION IN THE CIRCUMSTANCES OF THE
CASE.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS AND DOES NOT PRESENT A MAJOR POLICY ISSUE, YOUR APPEAL
FAILS TO MEET THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.12
OF THE COUNCIL'S RULES. ACCORDINGLY, YOUR PETITION FOR REVIEW IS
DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
W. MUDGETT
AFGE
/1/ DEFENSE SUPPLY AGENCY, DEFENSE PROPERTY DISPOSAL OFFICE, ABERDEEN
PROVING GROUND, ABERDEEN, MARYLAND, A/SLMR NO. 360.
/2/ HEADQUARTERS, UNITED STATES ARMY AVIATION SYSTEMS COMMAND, FLRC
NO. 72A-30 (JULY 25, 1973), REPORT NO. 42.
/3/ ON DECEMBER 9, 1975, THE COUNCIL ISSUED ITS DECISION IN DEFENSE
SUPPLY AGENCY, DEFENSE PROPERTY DISPOSAL OFFICE, ABERDEEN PROVING
GROUND, ABERDEEN, MARYLAND, A/SLMR NO. 360, FLRC NO. 74A-22, CONCLUDING,
IN PERTINENT PART, THAT THE CO-EMPLOYER DOCTRINE, AS FASHIONED AND
APPLIED BY THE ASSISTANT SECRETARY IN THE CIRCUMSTANCES OF THAT CASE,
WAS IMPROPER AND MAY NOT BE RELIED UPON BY HIM IN HIS RECONSIDERATION
UPON REMAND OF THE CASE; AND FURTHER CONCLUDED THAT THE ASSISTANT
SECRETARY DID NOT MAKE THE REQUIRED AFFIRMATIVE DETERMINATIONS AND DID
NOT ACCORD EQUAL WEIGHT TO EACH CRITERION UNDER SECTION 10(B) OF THE
ORDER, CITING DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION
ADMINISTRATION, SOUTHWEST REGION, TULSA AIRWAY FACILITIES SECTOR, A/SLMR
NO. 364, FLRC NO. 74A-28 (MAY 9, 1975), REPORT NO. 69. THE ACTIVITY IN
THE INSTANT CASE DID NOT RAISE ISSUE WITH THE CONTINUED APPROPRIATENESS
OF THE EXISTING UNIT AND THE ASSISTANT SECRETARY'S FINDINGS IN THIS
REGARD THEREFORE ARE NOT AT ISSUE HEREIN.
3 FLRC 822; FLRC NO. 75A-45; DECEMBER 24, 1975.
MR. ROBERT T. MCLEAN, CHIEF
LABOR & EMPLOYEE RELATIONS DIVISION
DIRECTORATE OF CIVILIAN PERSONNEL
HEADQUARTERS U.S. AIR FORCE
DEPARTMENT OF THE AIR FORCE
WASHINGTON, D.C. 20314
(SYNOPSIS) FLRC NO. 75A-45
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2612 AND
DEPARTMENT OF THE AIR FORCE, HEADQUARTERS 416TH COMBAT SUPPORT GROUP
(SAC), GRIFFISS AIR FORCE BASE (GROSS, ARBITRATOR). THE ARBITRATOR
DETERMINED THAT THE AGENCY HAD CAUSE TO DISCIPLINE THE GRIEVANT, BUT
CONCLUDED THAT THE PENALTY, A WRITTEN REPRIMAND WHICH WAS TO BE RETAINED
IN THE GRIEVANT'S OFFICIAL PERSONNEL FOLDER FOR A PERIOD OF 2 YEARS, WAS
TOO SEVERE; AND DIRECTED THAT THE RETENTION OF THE REPRIMAND BE REDUCED
TO 1 YEAR. THE AGENCY FILED EXCEPTIONS TO THE AWARD WITH THE COUNCIL,
PRINCIPALLY CONTENDING THAT THE AWARD VIOLATED AN AGENCY REGULATION.
THE AGENCY ALSO REQUESTED A STAY OF THE ARBITRATOR'S AWARD.
COUNCIL ACTION (DECEMBER 24, 1975). THE COUNCIL CONCLUDED THAT,
UNDER THE FACTS OF THIS CASE AND THE RELEVANT SCOPE OF THE TERM
"APPROPRIATE REGULATION" IN SECTION 2411.32 OF THE COUNCIL'S RULES, THE
AGENCY'S EXCEPTIONS DID NOT PRESENT A GROUND UPON WHICH THE COUNCIL WILL
GRANT A PETITION FOR REVIEW OF AN ARBITRATION AWARD. ACCORDINGLY, THE
COUNCIL DENIED THE AGENCY'S PETITION BECAUSE IT FAILED TO MEET THE
REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.32 OF THE COUNCIL'S
RULES OF PROCEDURE. THE COUNCIL LIKEWISE DENIED THE AGENCY'S REQUEST
FOR A STAY.
DEAR MR. MCLEAN:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF AN
ARBITRATOR'S AWARD FILED IN THE ABOVE-ENTITLED CASE.
AS STATED IN THE AWARD, THE AGENCY ISSUED A WRITTEN REPRIMAND TO THE
GRIEVANT FOR FAILING, FOR THE SECOND TIME WITHIN 6 WEEKS, TO USE PROPER
EYE PROTECTION DEVICES WHILE OPERATING A GRINDING MACHINE AS REQUIRED BY
THE AGENCY'S SAFETY REGULATIONS IN AIR FORCE MANUAL 127-101. THE
GRIEVANT HAD BEEN COUNSELED REGARDING PROPER EYE PROTECTION FOLLOWING
THE FIRST INCIDENT. THE WRITTEN REPRIMAND WAS TO BE RECORDED IN THE
GRIEVANT'S OFFICIAL PERSONNEL FOLDER FOR A PERIOD OF 2 YEARS.
THEREAFTER, THE EMPLOYEE FILED A GRIEVANCE SEEKING TO HAVE THE REPRIMAND
RESCINDED. THE GRIEVANCE WAS ULTIMATELY SUBMITTED TO ARBITRATION.
THE PARTIES SUBMITTED THE FOLLOWING ISSUE TO THE ARBITRATOR:
WAS THE REPRIMAND GIVEN THE GRIEVANT, DANTE DI PIETRA, FOR JUST CAUSE
AND ADMINISTERED IN A
FAIR AND EQUITABLE MANNER UNDER ARTICLE 25, SECTION 1. /1/ IF NOT,
WHAT SHOULD THE REMEDY
BE?
THE ARBITRATOR DETERMINED THAT THE AGENCY HAD CAUSE TO DISCIPLINE THE
GRIEVANT FOR HIS SECOND VIOLATION OF SAFETY REGULATIONS. HOWEVER, THE
ARBITRATOR CONCLUDED THAT THE PENALTY WAS TOO SEVERE FOR TWO REASONS.
FIRST, THE GRIEVANT'S INITIAL VIOLATION OF THE SAFETY REGULATIONS WAS
THE RESULT OF AN UNINTENTIONAL MENTAL LAPSE, THE NATURE OF WHICH
MANAGEMENT ITSELF RECOGNIZED AS SLIGHT. SECOND, THE SUBSEQUENT VIOLATE
ALONE DID NOT CONSTITUTE SUFFICIENT GROUNDS TO WARRANT A WRITTEN
REPRIMAND OF 2 YEARS' DURATION "AS DEFINED IN AIR FORCE REGULATION
40-750," WHICH AGENCY REGULATION HAD BEEN INTRODUCED AS A JOINT EXHIBIT
IN THE ARBITRATION PROCEEDING. THEREFORE, THE ARBITRATOR ORDERED THE
DURATION OF THE WRITTEN REPRIMAND REDUCED TO 1 YEAR.
THE AGENCY REQUESTS THAT THE COUNCIL ACCEPT ITS PETITION FOR REVIEW
OF THE ARBITRATOR'S AWARD ON THE BASIS OF THREE EXCEPTIONS DISCUSSED
BELOW.
UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE, REVIEW OF
AN ARBITRATION AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON
THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE
EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES
APPLICABLE LAW, APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS
SIMILAR TO THOSE UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE
SUSTAINED BY COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS."
THE AGENCY'S FIRST EXCEPTION CONTENDS THAT THE ARBITRATOR'S AWARD, BY
REDUCING THE DURATION OF THE REPRIMAND TO 1 YEAR, VIOLATES "APPLICABLE
REGULATION," /2/ SPECIFICALLY PARAGRAPHS 15(B) /3/ AND 19(B) /4/ OF AIR
FORCE REGULATION (AFR) 40-750 WHICH PROVIDE THAT THE RETENTION PERIOD
FOR A REPRIMAND IS 2 YEARS.
THE AGENCY ASSERTS THAT THE REPRIMAND OF THE GRIEVANT WAS ISSUED
UNDER THE POLICY AND PROVISIONS OF AFR 40-750, PARAGRAPH 19 OF WHICH
DEFINES THE AGENCY DISCIPLINARY STRUCTURE; THAT AGENCY POLICIES AND
REQUIREMENTS MUST BE APPLIED UNLESS WAIVED IN THE AGREEMENT BUT THERE
WAS NO WAIVER IN THE CASE HEREIN; AND THAT PARAGRAPH 19(B)(3) OF AFR
40-750 PROVIDES FOR MAKING A REPRIMAND MORE BUT NOT LESS SEVERE. THE
AGENCY ARGUES THAT THE ARBITRATOR BY REDUCING THE RETENTION PERIOD TO 1
YEAR SUBSTITUTED HIS PERSONAL BELIEF AS TO WHAT CONSTITUTES AN
APPROPRIATE RETENTION PERIOD FOR THE 2-YEAR PERIOD DEFINED IN PARAGRAPHS
15B AND 19B OF AFR 40-750 AND, THEREFORE, HIS AWARD VIOLATES THOSE
PARAGRAPHS OF AFR 40-750.
IN ITS SECOND EXCEPTION THE AGENCY CONTENDS THAT THE AWARD IS NOT
BASED ON PROVISIONS OF THE AGREEMENT WHICH MAKE IT CLEAR THAT "AIR FORCE
POLICIES AND REQUIREMENTS MUST BE APPLIED UNLESS THEY ARE WAIVED IN THE
AGREEMENT." IN SUPPORT OF THIS EXCEPTION THE AGENCY POINTS OUT THAT
ALTHOUGH THE ARBITRATOR HAD A COPY OF AFR 40-750 BEFORE HIM AND, IN
FACT, QUOTED PARAGRAPH 19B(2) OF THAT REGULATION, HE CITED NEITHER AN
AGREEMENT PROVISION NOR A REGULATORY PROVISION GIVING HIM AUTHORITY TO
RENDER AN AWARD REDUCING THE PERIOD OF THE REPRIMAND AND NO SUCH
AUTHORITY EXISTS IN THE AGREEMENT. THUS, IN EFFECT, THE AGENCY CONTENDS
THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY BY FASHIONING A REMEDY
CONTRARY TO AFR 40-750.
THE AGENCY'S THIRD EXCEPTION IS THAT THE ARBITRATOR EXCEEDED HIS
AUTHORITY BY, IN EFFECT, ALTERING THE AGREEMENT. THE AGENCY CONTENDS
THAT THE ARBITRATOR'S AWARD EFFECTIVELY ALTERS THE PROVISIONS OF ARTICLE
3, SECTION 1 AND ARTICLE 25, SECTION 1 OF THE AGREEMENT. /5/ IF THE
AWARD IS SUSTAINED, THE AGENCY CONTENDS, ARTICLE 3, SECTION 1 WILL
EFFECTIVELY READ " . . . BY PUBLISHED AGENCY POLICIES AND REGULATIONS IN
EXISTENCE AT THE TIME THE AGREEMENT WAS APPROVED EXCEPT WHEN AN
ARBITRATOR CHOOSES OTHERWISE . . . ," AND ARTICLE 25, SECTION 1 WILL
EFFECTIVELY READ "(D)ISCIPLINARY ACTIONS AS DEFINED BY THE ARBITRATOR
AFTER THE FACT . . . "
IN ESSENCE, EACH OF THE AGENCY'S THREE SEPARATELY STATED EXCEPTIONS
ARE BASED UPON THE CONTENTION THAT THE AWARD VIOLATES AN AGENCY
REGULATION BY REDUCING THE LETTER OF REPRIMAND FROM 2 TO 1 YEAR'S
DURATION. /6/ THE PREDICATE OF THE AGENCY'S EXCEPTIONS IS THAT, IN THE
CIRCUMSTANCES OF THIS CASE, AFR 40-750-- AN AGENCY REGULATION-- IS AN
"APPROPRIATE REGULATION" AS THAT TERM IS USED IN SECTION 2411.32 OF THE
COUNCIL'S RULES; HENCE, AN AWARD INCONSISTENT WITH THE AGENCY
REGULATION HEREIN IS VIOLATIVE OF AN APPROPRIATE REGULATION AND,
THEREFORE, SHOULD BE SET ASIDE.
AS PREVIOUSLY INDICATED, THE COUNCIL WILL GRANT A PETITION FOR REVIEW
OF AN ARBITRATION AWARD WHERE IT APPEARS, BASED UPON THE FACTS AND
CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE AWARD VIOLATES AN
APPROPRIATE REGULATION. OFFICE OF ECONOMIC OPPORTUNITY AND LOCAL 2766,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (MAGGIOLO,
ARBITRATOR), FLRC NO. 75A-26 (MAY 19, 1975), REPORT NO. 70 AT P. 4 OF
THE DIGEST. THE QUESTION, THEN, IS WHETHER OR NOT THE AIR FORCE
REGULATION AT ISSUE IS, IN THE CIRCUMSTANCES OF THIS CASE, AN
"APPROPRIATE REGULATION" WITHIN THE MEANING OF SECTION 2411.32 OF THE
COUNCIL'S RULES SUCH THAT THE COUNCIL WILL, IF THE FACTS AND
CIRCUMSTANCES DESCRIBED IN THE PETITION WARRANT IT, GRANT A PETITION FOR
REVIEW OF THE AWARD.
IN CASES TO DATE IN WHICH THE COUNCIL HAS ACCEPTED AND SUBSEQUENTLY
MODIFIED AN ARBITRATOR'S AWARD BASED IN PART ON A VIOLATION OF AN
"APPROPRIATE REGULATION," THE REGULATIONS AT ISSUE WERE CIVIL SERVICE
COMMISSION REGULATIONS IMPLEMENTING SPECIFIC PROVISIONS OF TITLE 5,
UNITED STATES CODE. /7/ IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 2649 AND OFFICE OF ECONOMIC OPPORTUNITY (SISK,
ARBITRATOR), FLRC NO. 74A-17 (DECEMBER 5, 1974), REPORT NO. 61, THE
UNION CONTENDED IN ITS PETITION FOR COUNCIL REVIEW THAT THE AWARD
VIOLATED AN AGENCY STAFF MANUAL AND THEREFORE VIOLATED AN "APPROPRIATE
REGULATION." HOWEVER, THE COUNCIL, WITHOUT PASSING ON WHETHER THE AGENCY
STAFF MANUAL IS AN "APPROPRIATE REGULATION" AS THAT TERM IS USED IN
SECTION 2411.32 OF THE COUNCIL'S RULES, CONCLUDED THAT THE UNION'S
EXCEPTION DID NOT APPEAR TO BE SUPPORTED BY THE FACTS AND CIRCUMSTANCES
DESCRIBED IN THE PETITION. (IN OTHER CASES /8/ THE COUNCIL HAS HELD
THAT THE INTERPRETATION OF CONTRACT PROVISIONS, INCLUDING THE
INTERPRETATION OF AGENCY POLICIES AND REGULATIONS ON MATTERS WITHIN
AGENCY DISCRETION WHERE THOSE POLICIES OR REGULATIONS ARE SPECIFICALLY
INCORPORATED IN A NEGOTIATED AGREEMENT, ARE MATTERS TO BE LEFT TO THE
JUDGMENT OF THE ARBITRATOR. HENCE, A CHALLENGE TO THE ARBITRATOR'S
INTERPRETATION OF SUCH AGENCY POLICIES OR REGULATIONS ON THE GROUND THAT
THE ARBITRATOR MISINTERPRETED AND THEREFORE VIOLATED SUCH REGULATIONS,
DOES NOT PRESENT A GROUND UPON WHICH THE COUNCIL WILL GRANT A PETITION
FOR REVIEW OF AN ARBITRATION AWARD.)
THUS, WHERE THE COUNCIL HAS ACCEPTED A PETITION FOR REVIEW OF AN
ARBITRATOR'S AWARD ON THE GROUND THAT IT VIOLATES AN APPROPRIATE
REGULATION, THE APPEAL HAS INVOLVED A REGULATION ISSUED BY AN AUTHORITY
OUTSIDE THE AGENCY. THE QUESTION IN THIS CASE, ON THE OTHER HAND,
INVOLVES CIRCUMSTANCES WHERE AN ARBITRATOR, IN INTERPRETING AND APPLYING
A CONTRACT PROVISION, RENDERS AN AWARD WHICH THE AGENCY SAYS IS IN
VIOLATION OF AN AGENCY REGULATION WHICH DEALS WITH THE SAME SUBJECT AND
WHICH WAS SUBMITTED BY THE PARTIES FOR CONSIDERATION BY THE ARBITRATOR
IN FASHIONING HIS AWARD. WHILE IT IS RECOGNIZED THAT UNDER SECTION
12(A) OF THE ORDER AN AGENCY'S REGULATIONS ARE BINDING IN THE
ADMINISTRATION OF A NEGOTIATED AGREEMENT, /9/ THE COUNCIL IS OF THE
OPINION THAT WHERE, AS IN THIS CASE, AN ARBITRATOR, IN THE COURSE OF
RENDERING HIS AWARD, CONSIDERS AN AGENCY REGULATION WHICH DEALS WITH THE
SAME SUBJECT MATTER AS THE PROVISION IN THE NEGOTIATED AGREEMENT AND
WHICH WAS INTRODUCED BY THE PARTIES TO THE DISPUTE, AND THEREAFTER
CONSIDERS AND APPLIES THAT REGULATION IN REACHING HIS JUDGMENT IN THE
CASE, THE AGENCY MAY NOT CHALLENGE THE APPLICATION OF THAT REGULATION
BEFORE THE COUNCIL. /10/
AS TO THE FACTS OF THIS PARTICULAR CASE, THE ARBITRATOR WAS EMPOWERED
BY THE PARTIES TO DETERMINE WHETHER OR NOT THE REPRIMAND WAS FOR JUST
CAUSE AND ADMINISTERED IN A FAIR AND EQUITABLE MANNER, AND, IF NOT, WHAT
THE REMEDY SHOULD BE. AS THE COUNCIL HAS INDICATED, AN ARBITRATOR
DERIVES HIS AUTHORITY FROM BOTH THE COLLECTIVE BARGAINING AGREEMENT AND
THE SUBMISSION AGREEMENT. /11/ HERE, THE AWARD SHOWS THAT THE ISSUE
SUBMITTED BY THE PARTIES AUTHORIZED THE ARBITRATOR TO DECIDE "WHAT
SHOULD THE REMEDY BE" IF HE DETERMINED THAT THE REPRIMAND WAS NOT FOR
"JUST CAUSE AND ADMINISTERED IN A FAIR AND EQUITABLE MANNER" UNDER
ARTICLE 25, SECTION 1 OF THE AGREEMENT. THE ARBITRATOR DETERMINED IN
ESSENCE THAT WHILE THE REPRIMAND WAS FOR CAUSE, THE REPRIMAND WAS NOT
ADMINISTERED IN A FAIR AND EQUITABLE MANNER AND HE ORDERED THE PENALTY
REDUCED TO BE COMMENSURATE WITH THE OFFENSE. IN SO DOING, THE
ARBITRATOR DID PRECISELY WHAT THE PARTIES COMMISSIONED HIM TO DO. THAT
IS, HE ANSWERED THE QUESTION SUBMITTED: "WHAT SHOULD THE REMEDY BE?"
IN FINDING THAT THE PENALTY DID NOT "FIT THE OFFENSE COMMITTED," THE
ARBITRATOR SPECIFICALLY MENTIONED AND QUOTED FROM AFR 40-750, SUBMITTED
BY THE PARTIES AS A JOINT EXHIBIT, AND STATED THAT THE VIOLATION DID NOT
WARRANT A WRITTEN REPRIMAND OF 2 YEAR'S DURATION AS DEFINED THEREIN. IN
REDUCING THE REPRIMAND TO 1 YEAR'S DURATION THE ARBITRATOR WAS, UNDER
THE PROVISIONS OF SECTION 1 OF ARTICLE 25 OF THE COLLECTIVE BARGAINING
AGREEMENT AND THE SUBMISSION AGREEMENT, IN EFFECT, CONSIDERING AND
APPLYING THE AGENCY'S REGULATIONS AND IMPOSING THE PENALTY OF REPRIMAND
IN A MANNER WHICH HE DEEMED APPROPRIATE FOR THE OFFENSE COMMITTED. IN
CONCLUSION, UNDER THE FACTS OF THIS CASE AND IN ACCORDANCE WITH THE
DISCUSSION HEREIN REGARDING THE SCOPE OF THE TERM "APPROPRIATE
REGULATION" IN THE COUNCIL'S RULES, THE AGENCY'S EXCEPTIONS THAT THE
ARBITRATOR'S AWARD VIOLATES AN AGENCY REGULATION DO NOT PRESENT A GROUND
UPON WHICH THE COUNCIL WILL GRANT A PETITION FOR REVIEW OF AN
ARBITRATION AWARD. /12/
ACCORDINGLY, THE AGENCY'S PETITION FOR REVIEW IS DENIED BECAUSE IT
FAILS TO MEET THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.32
OF THE COUNCIL'S RULES OF PROCEDURE. LIKEWISE, THE REQUEST FOR A STAY
IS DENIED.
BY THE COUNCIL.
CC: J. W. MULHOLLAND
AFGE
JAMES A. GROSS
/1/ SECTION 1 OF ARTICLE 25 (DISCIPLINARY ACTIONS) OF THE PARTIES'
COLLECTIVE BARGAINING AGREEMENT PROVIDES AS FOLLOWS:
DISCIPLINARY ACTIONS WILL BE BASED ON JUST CAUSE, INITIATED PROMPTLY
AND ADMINISTERED IN A
FAIR AND EQUITABLE MANNER.
/2/ THE COUNCIL'S RULES CONCERNING REVIEW OF ARBITRATION AWARDS
PROVIDE FOR THE GRANTING OF REVIEW ON GROUNDS THAT THE AWARD VIOLATES
"APPROPRIATE REGULATION." THE COUNCIL HAS CONSTRUED THE AGENCY'S
PETITION AS ALLEGING A VIOLATION OF AN "APPROPRIATE REGULATION."
/3/ PARAGRAPH 15B OF AFR 40-750 PROVIDES AS FOLLOWS:
B. REPRIMANDS ARE TEMPORARY RECORDS WHOSE RETENTION PERIOD IS 2
YEARS FROM THE DATE OF THE
NOTICE OF DECISION TO REPRIMAND. EXPIRED REPRIMANDS ARE SCREENED
FROM OFFICIAL PERSONNEL
FOLDERS AND ARE DESTROYED. REFERENCES TO EXPIRED REPRIMANDS ARE
DELETED FROM AF FORMS
971. THE NOTICE OF DECISION TO REPRIMAND INFORMS THE EMPLOYEE OF THE
EXPIRATION DATE OF THE
REPRIMAND AND THAT THE REPRIMAND WILL BE DESTROYED UPON EXPIRATION.
/4/ PARAGRAPH 19B OF AFR 40-750 PROVIDES IN PERTINENT PART AS
FOLLOWS:
B. REPRIMAND. A REPRIMAND IS A DISCIPLINARY ACTION WHICH IS
TEMPORARILY RECORDED IN THE
EMPLOYEE'S OFFICIAL PERSONNEL FOLDER FOR 2 YEARS.
(1) IT IS USED FOR SIGNIFICANT MISCONDUCT AND REPEATED LESSER
INFRACTIONS AND TO MOTIVATE
IMPROVED PERFORMANCE WHEN THE CAUSE OF THE INADEQUATE PERFORMANCE IS
WITHIN THE EMPLOYEE'S
CONTROL.
(2) THE REPRIMAND IS A SEVERE DISCIPLINARY ACTION WHICH SHOULD BE
ADEQUATE FOR MOST
DISCIPLINARY SITUATIONS WHICH REQUIRE AN ACTION MORE STRINGENT THAN
AN ORAL ADMONISHMENT. FOR
PURPOSES OF DETERMINING THE EXISTENCE OF A PRIOR OFFENSE IN SUPPORT
OF THE PENALTY TO BE
ESTABLISHED FOR A SUBSEQUENT OFFENSE, A REPRIMAND HAS THE SAME WEIGHT
AS A SUSPENSION.
(3) A REPRIMAND MAY BE MADE MORE "SEVERE" IN THE SENSE OF
ESTABLISHING A PROGRESSION OF
PENALTIES BY INCLUDING REFERENCE TO PREVIOUS OFFENSES, INDICATION OF
THE SERIOUSNESS OF
MANAGEMENT'S CONCERN WITH THE CONTINUED MISCONDUCT OR DELINQUENCY,
AND PROGRESSIVELY MORE
RIGOROUS STATEMENTS THAT A FUTURE OFFENSE COULD RESULT IN A MORE
SEVERE PENALTY. A REPRIMAND
MAY BE THE LAST STEP IN A PROGRESSION BEFORE REMOVAL IF IT GIVES
CLEAR WARNING THAT A FURTHER
OFFENSE COULD LEAD TO REMOVAL.
/5/ ARTICLE 3, SECTION 1 OF THE AGREEMENT PROVIDES AS FOLLOWS:
SECTION 1. IN THE ADMINISTRATION OF ALL MATTERS COVERED BY THIS
AGREEMENT, OFFICIALS AND
EMPLOYEES ARE GOVERNED BY THE PROVISIONS OF ANY EXISTING OR FUTURE
LAWS AND REGULATIONS OF
APPROPRIATE AUTHORITIES, INCLUDING POLICIES SET FORTH IN THE FEDERAL
PERSONNEL MANUAL; BY
PUBLISHED AGENCY POLICIES AND REGULATIONS IN EXISTENCE AT THE TIME
THE AGREEMENT WAS
APPROVED; AND BY SUBSEQUENTLY PUBLISHED AGENCY POLICIES AND
REGULATIONS REQUIRED BY LAW OR BY
THE REGULATIONS OF APPROPRIATE AUTHORITIES, OR AUTHORIZED BY THE
TERMS OF A CONTROLLING
AGREEMENT AT A HIGHER AGENCY LEVEL. ARTICLE 25, SECTION 1 PROVIDES:
SECTION 1. DISCIPLINARY ACTIONS WILL BE BASED ON JUST CAUSE,
INITIATED PROMPTLY AND
ADMINISTERED IN A FAIR AND EQUITABLE MANNER.
/6/ IN THE ALTERNATIVE, THE SECOND AND THIRD EXCEPTIONS COULD BE READ
AS CHALLENGING THE AWARD ON THE GROUND THAT THE ARBITRATOR EXCEEDED HIS
AUTHORITY IN FASHIONING HIS REMEDY. SEE NOTE 12, INFRA.
/7/ E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2449 AND
HEADQUARTERS, DEFENSE SUPPLY AGENCY AND DSA FIELD ACTIVITIES, CAMERON
STATION, ALEXANDRIA, VIRGINIA (JAFFEE, ARBITRATOR), FLRC NO. 73A-51
(SEPTEMBER 24, 1974), REPORT NO. 57, WHEREIN THE COUNCIL FOUND, BASED
UPON THE ADVICE OF THE CIVIL SERVICE COMMISSION, THAT THE AWARD, TO THE
EXTENT THAT IT DIRECTED A RETROACTIVE PROMOTION AND BACKPAY, VIOLATED
APPLICABLE LAW AND APPROPRIATE REGULATION.
/8/ FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION AND
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION (SCHEDLER,
ARBITRATOR), FLRC NO. 74A-88 (JULY 24, 1975), REPORT NO. 78; FEDERAL
AVIATION ADMINISTRATION AND PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION (MEGA, AFL-CIO) (HANLON, ARBITRATOR), FLRC NO. 75A-9 (JULY
24, 1975), REPORT NO. 78; PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION AND FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF
TRANSPORTATION (EIGENBROD, ARBITRATOR), FLRC NO. 75A-15 (JULY 24, 1975),
REPORT NO. 78; FEDERAL AVIATION ADMINISTRATION, KANSAS CITY, MISSOURI
AND PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION (YAROWSKY,
ARBITRATOR), FLRC NO. 75A-54 (JULY 24, 1975), REPORT NO. 78.
/9/ SECTION 12(A) PROVIDES:
(A) IN THE ADMINISTRATION OF ALL MATTERS COVERED BY THE AGREEMENT,
OFFICIALS AND EMPLOYEES
ARE GOVERNED BY EXISTING OR FUTURE LAWS AND THE REGULATIONS OF
APPROPRIATE AUTHORITIES,
INCLUDING POLICIES SET FORTH IN THE FEDERAL PERSONNEL MANUAL; BY
PUBLISHED AGENCY POLICIES AND
REGULATIONS IN EXISTENCE AT THE TIME THE AGREEMENT WAS APPROVED; AND
BY SUBSEQUENTLY PUBLISHED
AGENCY POLICIES AND REGULATIONS REQUIRED BY LAW OR BY THE REGULATIONS
OF APPROPRIATE
AUTHORITIES, OR AUTHORIZED BY THE TERMS OF A CONTROLLING AGREEMENT AT
A HIGHER AGENCY LEVEL;
IN BUREAU OF PRISONS AND FEDERAL PRISON INDUSTRIES, INC., WASHINGTON,
D.C. AND COUNCIL OF PRISON LOCALS, AFGE, 73 FSIP 27, FLRC NO. 74A-24
(JUNE 10, 1975), REPORT NO. 74, THE COUNCIL CITED FROM THE REPORT
ACCOMPANYING THE 1975 AMENDMENTS TO E.O. 11491 AS FOLLOWS:
. . . ARBITRATORS OF NECESSITY NOW CONSIDER THE MEANING OF LAWS AND
REGULATIONS, INCLUDING
AGENCY REGULATIONS, IN RESOLVING GRIEVANCES ARISING UNDER NEGOTIATED
AGREEMENTS BECAUSE
PROVISIONS IN SUCH AGREEMENTS OFTEN DEAL WITH SUBSTANTIVE MATTERS
WHICH ARE ALSO DEALT WITH IN
LAW OR REGULATION AND BECAUSE SECTION 12(A) OF THE ORDER REQUIRES
THAT THE ADMINISTRATION OF
EACH NEGOTIATED AGREEMENT BE SUBJECT TO SUCH LAW AND REGULATION.
(REPORT NO. 74 AT P. 13.)
/10/ THIS CONCLUSION IS CONSISTENT WITH THE RECENT AMENDMENTS MADE TO
SECTION 13 OF THE ORDER BY EXECUTIVE ORDER 11838, FEBRUARY 6, 1975.
UNDER THE PROVISIONS OF THAT SECTION THE PARTIES TO AN AGREEMENT MAY NOW
AGREE TO RESOLVE GRIEVANCES OVER AGENCY REGULATIONS AND POLICIES,
WHETHER OR NOT THE REGULATIONS AND POLICIES ARE CONTAINED IN THE
AGREEMENT, THROUGH THEIR NEGOTIATED GRIEVANCE PROCEDURE.
/11/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 12
(AFGE), AND U.S. DEPARTMENT OF LABOR (JAFFEE, ARBITRATOR), FLRC NO.
72A-3 (JULY 31, 1973), REPORT NO. 42, N. 12 AND ACCOMPANYING TEXT.
/12/ LIKEWISE, SHOULD THE SECOND AND THIRD EXCEPTIONS BE VIEWED AS
CHALLENGING THE AWARD ON THE GROUND THAT THE ARBITRATOR EXCEEDED HIS
AUTHORITY IN FASHIONING HIS REMEDY, THE COUNCIL MUST CONCLUDE, FOR THE
REASONS DISCUSSED ABOVE CONCERNING THE FACTS OF THIS PARTICULAR CASE,
THAT THE AGENCY'S EXCEPTIONS ARE NOT SUPPORTED BY FACTS AND
CIRCUMSTANCES AS REQUIRED BY SECTION 2411.32 OF THE COUNCIL'S RULES OF
PROCEDURE. SEE FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF
TRANSPORTATION AND PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION
(SCHEDLER, ARBITRATOR), FLRC NO. 74A-88 (JULY 24, 1975), REPORT NO. 78,
CITING NAVAL AIR REWORK FACILITY, PENSACOLA, FLORIDA AND AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LODGE NO. 1960 (GOODMAN,
ARBITRATOR), FLRC NO. 74A-12 (SEPTEMBER 9, 1974), REPORT NO. 56. SEE
NOTE 6, SUPRA.
3 FLRC 817; FLRC NO. 75A-111; DECEMBER 22, 1975.
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES LOCAL 405
AND
U.S. ARMY TROOP SUPPORT COMMAND,
ST. LOUIS, MISSOURI
(SYNOPSIS) FLRC NO. 75A-111
NATIONAL FEDERATION OF FEDERAL EMPLOYEES LOCAL 405 AND U.S. ARMY
TROOP SUPPORT COMMAND, ST. LOUIS, MISSOURI. THE DISPUTE INVOLVED THE
PROPRIETY OF THE AGENCY'S ACTION UNDER SECTION 15 OF THE ORDER, IN
WITHHOLDING APPROVAL OF A PROVISION OF THE LOCAL PARTIES' AGREEMENT ON
THE GROUND THAT THE PROVISION CONFLICTED WITH AGENCY REGULATIONS.
COUNCIL ACTION (DECEMBER 22, 1975). THE COUNCIL HELD THAT THE
AGENCY'S DISAPPROVAL OF THE DISPUTED PROVISION UNDER SECTION 15 OF THE
ORDER, BASED ON ITS DETERMINATION THAT THE PROVISION CONFLICTED WITH
AGENCY REGULATIONS AND WAS NONNEGOTIABLE, WAS PROPER AND MUST BE
SUSTAINED.
NATIONAL FEDERATION OF FEDERAL EMPLOYEES LOCAL 405 (THE UNION)
NEGOTIATED WITH THE U.S. ARMY TROOP SUPPORT COMMAND AN AGREEMENT,
SUBJECT TO AGENCY APPROVAL UNDER SECTION 15 OF THE ORDER, CONTAINING THE
FOLLOWING PROVISION:
MEMBERS OF LOCALLY CONSTITUTED RATING PANELS WILL BE OF THE SAME
GRADE OR HIGHER AND QUALIFIED
IN THE SERIES AND GRADE OF THE VACANCY UNDER CONSIDERATION, EXCEPT
THE PRESIDENT AND 1ST VICE
PRESIDENT MAY BE THE UNION MEMBER OF ANY PANEL.
THE U.S. ARMY MATERIEL COMMAND REVIEWED THE AGREEMENT, PURSUANT TO
SECTION 15, AND DISAPPROVED THE ABOVE-QUOTED PROVISION ON THE GROUND
THAT IT VIOLATES DEPARTMENT OF THE ARMY REGULATIONS (SPECIFICALLY
DEPARTMENT OF THE ARMY CIVILIAN PERSONNEL REGULATION (CPR) 335.3-6H.
/1/ UPON REFERRAL, THE DEPARTMENT OF THE ARMY SIMILARLY DETERMINED THAT
THE PROVISION VIOLATES CPR 335.3-6H AND DENIED THE UNION'S REQUEST FOR
AN EXCEPTION TO THE REGULATION. THE UNION THEREUPON FILED WITH THE
COUNCIL A PETITION FOR REVIEW OF THE AGENCY'S DETERMINATION AND THE
AGENCY SUBMITTED A STATEMENT OF ITS POSITION.
THE DISPUTE INVOLVES THE PROPRIETY OF THE AGENCY'S WITHHOLDING
APPROVAL, UNDER SECTION 15 OF THE ORDER, OF A PROVISION OF THE LOCAL
PARTIES' AGREEMENT ON THE GROUND THAT THE PROVISION CONFLICTS WITH
AGENCY REGULATIONS.
SECTION 15 OF THE ORDER PROVIDES THAT:
AN AGREEMENT WITH A LABOR ORGANIZATION AS THE EXCLUSIVE
REPRESENTATIVE OF EMPLOYEES IN A
UNIT IS SUBJECT TO THE APPROVAL OF THE HEAD OF THE AGENCY OR AN
OFFICIAL DESIGNATED BY
HIM. AN AGREEMENT SHALL BE APPROVED WITHIN FORTY-FIVE DAYS FROM THE
DATE OF ITS EXECUTION IF
IT CONFORMS TO APPLICABLE LAWS, THE ORDER, EXISTING PUBLISHED AGENCY
POLICIES AND REGULATIONS
(UNLESS THE AGENCY HAS GRANTED AN EXCEPTION TO A POLICY OR
REGULATION) AND REGULATIONS OF
OTHER APPROPRIATE AUTHORITIES . . .
THE AGENCY CONTENDS THAT THE PROVISION IN QUESTION IS NONNEGOTIABLE
BECAUSE IT CONFLICTS WITH CPR 335.3-6H AND, HENCE, WAS PROPERLY
DISAPPROVED UNDER SECTION 15.
THE UNION CONTENDS IN SUBSTANCE THAT THE AGENCY ACTED IMPROPERLY BY
INVOKING AGENCY REGULATIONS TO DENY APPROVAL OF THE PROVISION ONCE IT
HAD BEEN AGREED UPON BY THE LOCAL PARTIES. IN SUPPORT OF THIS
CONTENTION THE UNION RELIES UPON OUR DECISION IN THE RECENT GSA REGION 3
CASE, /2/ WHICH ALSO INVOLVED AGENCY DISAPPROVAL, PURSUANT TO SECTION 15
REVIEW, OF A LOCALLY AGREED-UPON PROVISION. AS EXPLAINED BELOW,
HOWEVER, THE CIRCUMSTANCES IN THE GSA CASE WERE SIGNIFICANTLY DIFFERENT
FROM THOSE OF THE INSTANT CASE AND, THUS, THE PRINCIPLE THERE
ESTABLISHED IS INAPPLICABLE TO THE PRESENT DISPUTE.
IN GSA REGION 3 THE AGENCY CONTENDED AND THE COUNCIL FOUND THAT THE
DISPUTED PROVISION, TO WHICH THE LOCAL PARTIES HAD ALREADY AGREED PRIOR
TO AGENCY REVIEW, CONCERNED MATTERS WHICH WERE EXCEPTED BY SECTION 11(B)
OF THE ORDER FROM THE AGENCY'S OBLIGATION TO BARGAIN. THE COUNCIL
FURTHER FOUND, HOWEVER, THAT SECTION 15 OF THE ORDER REQUIRED AGENCY
APPROVAL OF THE PROVISION AT ISSUE. IN THIS REGARD, THE COUNCIL
REASONED AS FOLLOWS:
(W)HILE THERE IS NO REQUIREMENT THAT MATTERS WITHIN THE AMBIT OF
SECTION 11(B) BE
NEGOTIATED, THE ORDER DOES PERMIT THEIR NEGOTIATION SO THAT AN
AGREEMENT WHICH RESULTS FROM
THE NEGOTIATION OF SUCH MATTERS DOES NOT, THEREBY, FAIL TO CONFORM TO
THE ORDER. THEREFORE,
SINCE THE AGENCY IN THE INSTANT CASE, THROUGH ITS LOCAL BARGAINING
REPRESENTATIVE, NEGOTIATED
AND REACHED AGREEMENT ON THE PROPOSAL IN DISPUTE AS PERMITTED BY THE
ORDER, THE AGENCY CANNOT,
AFTER THAT FACT, CHANGE ITS POSITION DURING THE SECTION 15 REVIEW
PROCESS. SUCH AGREEMENT
CONFORMS TO THE ORDER AND UNDER SECTION 15 IT MUST BE APPROVED.
ACCORDINGLY, THE COUNCIL SET ASIDE THE AGENCY'S DETERMINATION THAT
THE DISPUTED PROPOSAL WAS NONNEGOTIABLE AND COULD NOT BE APPROVED.
TURNING TO THE PRESENT CASE, THE UNION, RELYING ON THE GSA REGION 3
DECISION, ARGUES THAT:
(I)F A LOCAL BARGAINING REPRESENTATIVE OF AN AGENCY CAN BIND
MANAGEMENT TO AN AGREEMENT
INCLUDING MATTERS ABOUT WHICH MANAGEMENT IS NOT OBLIGATED TO
NEGOTIATE PURSUANT TO SECTION
11(B), IT CAN ALSO BIND MANAGEMENT TO AN AGREEMENT WHICH CONFLICTS
WITH AN AGENCY REGULATION.
THE UNION'S ARGUMENT IS WITHOUT MERIT. THE GSA CASE INVOLVED MATTERS
WHICH WERE WITHIN THE AGENCY'S OPTION TO BARGAIN UNDER SECTION 11(B) OF
THE ORDER, AND THE QUESTION PRESENTED WAS WHETHER, AFTER THE AGENCY'S
LOCAL BARGAINING REPRESENTATIVE HAD EXERCISED THAT OPTION BY AGREEING TO
THE DISPUTED PROVISION, THE AGENCY HAD AUTHORITY UNDER SECTION 15 TO
DISAPPROVE THE PROVISION. THE COUNCIL FOUND THAT NO SUCH AUTHORITY WAS
RESERVED TO THE AGENCY UNDER SECTION 15. IN CONTRAST, THE INSTANT CASE
INVOLVES A PROVISION DETERMINED TO BE VIOLATIVE OF AGENCY REGULATIONS,
AND SECTION 15 IN EFFECT RESERVES AUTHORITY TO AN AGENCY HEAD (OR HIS
DESIGNEE) TO DISAPPROVE AN AGREEMENT IF IT DOES NOT CONFORM TO EXISTING
PUBLISHED AGENCY POLICIES AND REGULATIONS (UNLESS THE AGENCY HAS GRANTED
AN EXCEPTION TO A POLICY OR REGULATION). /3/
ACCORDINGLY, AS THE AGENCY HERE DETERMINED THAT THE DISPUTED
PROVISION CONFLICTS WITH AGENCY REGULATIONS, WE MUST CONCLUDE, APART
FROM OTHER CONSIDERATIONS, THAT DISAPPROVAL OF THE PROVISION PURSUANT TO
SECTION 15 OF THE ORDER WAS PROPER. /4/
BASED ON THE FOREGOING, AND PURSUANT TO SECTION 2411.28 OF THE
COUNCIL'S RULES OF PROCEDURE, WE HOLD THAT THE AGENCY'S DISAPPROVAL OF
THE INSTANT PROVISION UNDER SECTION 15 OF THE ORDER, BASED ON ITS
DETERMINATION THAT THE PROVISION CONFLICTS WITH AGENCY REGULATIONS AND
IS NONNEGOTIABLE, WAS PROPER AND MUST BE SUSTAINED.
BY THE COUNCIL.
ISSUED: DECEMBER 22, 1975
/1/ CPR 335.3-6H PROVIDES:
H. RATING PROCEDURES.
(1) THE SCREENING OF CANDIDATES TO DETERMINE BASIC ELIGIBILITY
NORMALLY WILL BE A FUNCTION
OF THE SERVICING CIVILIAN PERSONNEL OFFICE.
(2) WHEN MULTIPLE RATING IS USED, THERE SHOULD BE THREE RATERS, WHO
WILL BE ARMY PERSONNEL,
MILITARY AND/OR CIVILIAN. IN ANY CASE:
(A) FOR KEY MANAGERIAL POSITIONS, INCLUDING ALL THOSE WITH
SUPERVISORY RESPONSIBILITIES,
RATERS WILL OCCUPY POSITIONS WHICH ARE (ORGANIZATIONALLY OR BY GRADE)
AT LEAST EQUAL TO THE
POSITION TO BE FILLED, AND WILL BE THOROUGHLY FAMILIAR WITH THE KIND
AND LEVEL OF
RESPONSIBILITIES INVOLVED.
(B) FOR ALL OTHER POSITIONS, RATERS WILL OCCUPY POSITIONS AT A LEVEL
NO LOWER THAN THAT OF
THE POSITION BEING FILLED, AND WILL BE CAPABLE OF MAKING INFORMED
DECISIONS REGARDING CRITERIA
AND QUALIFICATION IN THE OCCUPATIONAL FIELD.
(3) STAFFING SPECIALISTS WILL SERVE AS ADVISERS TO THE RATERS, AND
ASSURE THAT RATERS ARE
TRAINED IN EVALUATION METHODS.
/2/ AFGE COUNCIL OF LOCALS 1497 AND 2165 AND REGION 3, GENERAL
SERVICES ADMINISTRATION, BALTIMORE, MARYLAND, FLRC NO. 74A-48 (JUNE 26,
1975), REPORT NO. 75, AT PART 1 OF THE DECISION.
/3/ CF. LOCAL 174, AMERICAN FEDERATION OF TECHNICAL ENGINEERS,
AFL-CIO, AND SUPSHIPS, USN, 11TH NAVAL DISTRICT, SAN DIEGO, CALIFORNIA,
FLRC NO. 71A-49 (JUNE 29, 1973), REPORT NO. 41. IN THE INSTANT CASE NO
EXCEPTION TO AGENCY REGULATIONS WAS GRANTED.
/4/ IN THIS REGARD WE DO NOT, OF COURSE, PASS ON WHETHER THE AGENCY
REGULATION WOULD PROPERLY LIMIT NEGOTIATIONS UNDER SECTIONS 11(A) AND
11(C) OF E.O. 11491 AS RECENTLY AMENDED BY E.O. 11838. THAT IS, WE DO
NOT PASS UPON WHETHER THERE WOULD BE A "COMPELLING NEED" FOR THE
REGULATION UNDER PART 2413 OF THE COUNCIL'S RULES AND REGULATIONS (40
FED.REG. 43883 (1975)).
3 FLRC 810; FLRC NO. 75A-27; DECEMBER 22, 1975.
NUCO INC.
AND
LABOR MANAGEMENT SERVICES
ADMINISTRATION (U.S. DEPARTMENT
OF LABOR)
(SYNOPSIS) FLRC NO. 75A-27
NUCO INC. AND LABOR MANAGEMENT SERVICES ADMINISTRATION (U.S.
DEPARTMENT OF LABOR). THE DISPUTE INVOLVED THE NEGOTIABILITY UNDER THE
ORDER OF A UNION PROPOSAL CONCERNING "FLEXTIME" FOR UNIT EMPLOYEES.
COUNCIL ACTION /1/ (DECEMBER 22, 1975). THE COUNCIL FOUND, CONTRARY
TO THE UNION'S CONTENTIONS, THAT THE AGENCY REGULATION, AS INTERPRETED
BY THE AGENCY HEAD, UPON WHICH HIS DETERMINATION OF NONNEGOTIABILITY WAS
BASED, WAS A PROPER LIMITATION ON THE SCOPE OF NEGOTIATIONS UNDER
SECTION 11(A) OF THE ORDER, AS THEN CURRENTLY EFFECTIVE. ACCORDINGLY,
THE COUNCIL FOUND THAT THE AGENCY HEAD'S DETERMINATION AS TO THE
NONNEGOTIABILITY OF THE UNION'S PROPOSAL WAS PROPER AND MUST BE
SUSTAINED.
DURING THE COURSE OF NEGOTIATIONS BETWEEN THE NATIONAL UNION OF
COMPLIANCE OFFICERS (THE UNION) AND THE LABOR MANAGEMENT SERVICES
ADMINISTRATION, U.S. DEPARTMENT OF LABOR (LMSA), A DISPUTE AROSE
CONCERNING THE NEGOTIABILITY OF THE FOLLOWING UNION PROPOSAL CONCERNING
"FLEXTIME" FOR UNIT EMPLOYEES:
ARTICLE . . .
HOURS OF WORK
SECTION 1:
THE NORMAL WORK DAY SHALL BE THE REGULARLY ESTABLISHED WORK HOURS FOR
EACH AREA OFFICE,
MONDAY THROUGH FRIDAY, CONSISTING OF EIGHT (8) HOURS PER DAY, AND
FORTY (40) HOURS PER WEEK.
SECTION 2:
UNIT EMPLOYEES MAY ESTABLISH A FLEXTIME WORKING SCHEDULE CONSISTENT
WITH THE ENUNCIATED
PRINCIPLES LISTED BELOW:
A. CORE TIME: ALL EMPLOYEES WILL BE PRESENT AND ON DUTY STATUS FROM
9:30 A.M. UNTIL 3
P.M., EXCLUDING LUNCH PERIODS, DURING EACH WORK DAY.
B. FLEXIBLE TIME: EMPLOYEES MAY CHOSE (SIC) TO SCHEDULE WORK DAYS
BEGINNING AT ANY TIME
BETWEEN THE HOURS OF 6 A.M. AND 9:30 A.M. AND ENDING THE WORK DAY
BETWEEN 3 P.M. AND 6 P.M.
C. THE TOTAL NUMBER OF SUCH SCHEDULED HOURS OF WORK WILL NOT EXCEED
EIGHT (8) HOURS PER
DAY.
D. EACH AREA OFFICE WILL BE ADEQUATELY STAFFED TO HANDLE TELEPHONE
INQUIRIES AND VISITORS
DURING THE REGULARLY ESTABLISHED HOURS OF WORK.
E. CONFLICTS BETWEEN EMPLOYEES COMPETING FOR THE SAME DUTY HOURS
WILL BE RESOLVED ON THE
BASIS OF SENIORITY.
F. FLEXTIME WORKING SCHEDULES APPLY ONLY WHILE THE EMPLOYEES ARE
LOCATED AT THEIR REGULAR
DUTY STATIONS.
SECTION 3:
ALL WORK PERFORMED OUTSIDE OF ESTABLISHED WORK SCHEDULES SHALL BE
COMPENSATED FOR BY PAID
OVERTIME OR COMPENSATORY LEAVE, COMPUTED AT THE RATE OF ONE AND ONE
HALF (1 1/2) HOURS OF
COMPENSATORY LEAVE FOR EACH HOUR OF OVERTIME WORK AT THE OPTION OF
THE EMPLOYEE.
SECTION 4:
ACCRUED COMPENSATORY LEAVE MAY BE USED BY EMPLOYEES SUBJECT TO THE
APPROVAL OF THE AREA
DIRECTOR. SUCH APPROVAL CANNOT BE WITHHELD UNLESS IT CAN BE
DEMONSTRATED THAT THE GRANTING OF
SUCH LEAVE WOULD SERIOUSLY IMPAIR THE EFFICIENCY OF THE AREA OFFICE.
SECTION 5:
EMPLOYEES WILL NOT BE REQUIRED TO TAKE COMPENSATORY TIME OFF WHEN
AWAY FROM THEIR OFFICIAL
DUTY STATION.
UPON REFERRAL, THE DEPARTMENT OF LABOR DETERMINED, IN EFFECT, THAT
NEGOTIATION ON THE UNION'S PROPOSAL IS BARRED UNDER THE ORDER BY
PUBLISHED DEPARTMENT OF LABOR REGULATIONS. /2/ THE UNION APPEALED TO
THE COUNCIL FROM THAT DETERMINATION UNDER SECTION 11(C)(4) OF THE ORDER
AND THE AGENCY FILED A STATEMENT OF POSITION. /3/
THE ISSUE IN THIS CASE IS WHETHER THE AGENCY'S REGULATIONS, AS
INTERPRETED BY THE AGENCY HEAD, MAY PROPERLY BAR NEGOTIATION OF THE
UNION'S PROPOSAL UNDER SECTION 11(A) OF THE ORDER. /4/ THE AGENCY
CONTENDS THAT THE PROPOSAL CONFLICTS WITH AGENCY REGULATIONS ESTABLISHED
AT AN ORGANIZATIONAL LEVEL OF THE AGENCY ABOVE THE LMSA LEVEL, WHICH
REGULATIONS ESTABLISH A NATIONAL AGENCY POLICY BEYOND THE AUTHORITY OF
LMSA TO MODIFY THROUGH NEGOTIATIONS. THE UNION CLAIMS, WITHOUT
SUPPORTING CITATIONS, THAT "FLEXTIME" IS "ALLOWABLE" UNDER LAW AND CIVIL
SERVICE COMMISSION ISSUANCES AND THAT, THEREFORE, THE AGENCY
REGULATIONS, INTERPRETED AND APPLIED BY THE AGENCY HEAD TO BAR
NEGOTIATIONS, IN EFFECT IMPROPERLY LIMIT THE BARGAINING OBLIGATION UNDER
SECTION 11(A) OF THE ORDER.
ASSUMING WITHOUT THE NECESSITY OF PASSING ON THE MATTER THAT
"FLEXTIME" IS "ALLOWABLE" UNDER LAW AND CIVIL SERVICE COMMISSION
ISSUANCES AS THE UNION ASSERTS, /5/ IN OUR VIEW THE UNION'S CONTENTION
THAT THE AGENCY REGULATIONS IN QUESTION ARE IMPROPER AS A BAR TO
NEGOTIATIONS UNDER SECTION 11(A) IS WITHOUT MERIT.
SECTION 11(A) OF THE ORDER, AS CURRENTLY EFFECTIVE, ESTABLISHES A
BARGAINING OBLIGATION LIMITED, AMONG OTHER WAYS, BY THE PHRASE "SO FAR
AS MAY BE APPROPRIATE UNDER . . . PUBLISHED AGENCY POLICIES AND
REGULATIONS . . . " /6/ AS TO THE MEANING OF THIS LANGUAGE IN SECTION
11(A), THE COUNCIL HAS INDICATED IN PREVIOUS DECISIONS THAT THIS SECTION
OF THE ORDER, AS WELL AS SECTION E.1. OF THE 1969 REPORT TO THE
PRESIDENT, /7/ BY REFERENCE TO SUCH POLICIES AND REGULATIONS AS AN
APPROPRIATE LIMITATION ON THE SCOPE OF NEGOTIATIONS, FULLY SUPPORTS THE
AUTHORITY OF THE AGENCY HEAD TO ISSUE REGULATIONS GOVERNING THE
OPERATION OF HIS AGENCY AND THE CONDUCT OF HIS EMPLOYEES. /8/ FURTHER,
IN THIS REGARD, THE COUNCIL HAS HELD THAT THE "APPLICABLE . . .
PUBLISHED AGENCY POLICIES AND REGULATIONS" WHICH MAY PROPERLY LIMIT
NEGOTIATIONS UNDER SECTION 11(A) ARE THOSE "ISSUED TO ACHIEVE A
DESIRABLE DEGREE OF UNIFORMITY AND EQUALITY IN THE ADMINISTRATION OF
MATTERS COMMON TO ALL EMPLOYEES OF THE AGENCY, OR, AT LEAST, TO
EMPLOYEES OF MORE THAN ONE SUBORDINATE ACTIVITY." /9/
TURNING TO THE RECORD IN THIS CASE, THE AGENCY INDICATES THAT DLS
SUPPLEMENT 610 (NOTE 2, SUPRA) WHICH PRESCRIBES THAT "ONLY THE AGENCY
DIRECTOR OF PERSONNEL IS AUTHORIZED TO ESTABLISH HOURS OF DUTY OF AGENCY
EMPLOYEES," APPLIES UNIFORMLY AND EQUALLY TO ALL SUBORDINATE ACTIVITIES
OF THE AGENCY. THE AGENCY FURTHER STATES THAT "THE REASON FOR RETAINING
THIS AUTHORITY AT THE AGENCY LEVEL IS TO ACHIEVE SOME DEGREE OF
UNIFORMITY BETWEEN THE HOURS OF WORK OF THE SUBORDINATE ACTIVITIES IN
THE FIELD OFFICES SERVED BY THE DEPARTMENT." FINALLY, THE AGENCY
INDICATES THIS UNIFORMITY IS NECESSARY "TO ACHIEVE EFFECTIVE
COMMUNICATION BETWEEN THE VARIOUS SUBORDINATE; ACTIVITIES" AND "TO
ACCOMPLISH EFFECTIVE DIRECTION AND CONTROL OVER THE ACTIVITIES IN ORDER
TO MAINTAIN EFFICIENCY IN THE ADMINISTRATION AND COORDINATION OF
DEPARTMENTAL PROGRAMS."
THE RECORD FURTHER INDICATES, WITH RESPECT TO THE UNION'S PROPOSAL,
AS PREVIOUSLY SET FORTH HEREIN, THAT IT WOULD GRANT DISCRETION TO
INDIVIDUAL EMPLOYEES TO SET, WITHIN STATED LIMITS, THE TIMES WHEN THEY
WOULD BEGIN AND END THEIR WORKDAYS, I.E., THEIR HOURS OF DUTY, IN
CONFLICT WITH THE INTENDED PURPOSES AND EFFECT OF THE AGENCY REGULATION
AS ABOVE STATED.
IN THESE CIRCUMSTANCES, WE FIND THAT DLS SUPPLEMENT 610 WAS ISSUED TO
ACHIEVE A DESIRABLE DEGREE OF UNIFORMITY AND EQUALITY IN THE
ADMINISTRATION OF THE HOURS OF DUTY AT ALL SUBORDINATE ACTIVITIES OF THE
AGENCY. NO FACTORS OR CIRCUMSTANCES ARE BEFORE US WHICH INDICATE THAT
THIS AGENCY REGULATION VIOLATES ANY LAW OR REGULATION OF APPROPRIATE
AUTHORITY OUTSIDE THE AGENCY. NOR DO WE FIND ANYTHING IN THE REGULATION
ITSELF OR IN THE CIRCUMSTANCES SURROUNDING ITS ISSUANCE WHICH IMPROPERLY
LIMITS THE BARGAINING OBLIGATION IMPOSED BY SECTION 11(A) OF THE ORDER
AS CURRENTLY EFFECTIVE. THEREFORE, CONSISTENT WITH THE ORDER AND PRIOR
COUNCIL DECISIONS, /10/ THE REGULATION IS THE TYPE OF HIGHER-LEVEL
PUBLISHED AGENCY POLICY OR REGULATION, APPLICABLE UNIFORMLY TO MORE THAN
ONE ACTIVITY, THAT MAY PROPERLY LIMIT THE SCOPE OF NEGOTIATIONS AT
SUBORDINATE ORGANIZATIONAL LEVELS OF THE AGENCY UNDER SECTION 11(A) OF
THE ORDER.
ACCORDINGLY, WE MUST FIND THE AGENCY REGULATION, AS INTERPRETED BY
THE AGENCY HEAD, TO BE A PROPER LIMITATION ON THE SCOPE OF NEGOTIATIONS
UNDER SECTION 11(A), AS CURRENTLY EFFECTIVE. /11/ THEREFORE, THE AGENCY
HEAD'S DETERMINATION AS TO THE NONNEGOTIABILITY OF THE PROPOSAL WAS
PROPER AND, PURSUANT TO SECTION 2411.28 OF THE COUNCIL'S RULES OF
PROCEDURE, THAT DETERMINATION MUST BE SUSTAINED. /12/
BY THE COUNCIL. /13/
ISSUED: DECEMBER 22, 1975
/1/ THE SECRETARY OF LABOR DID NOT PARTICIPATE IN THIS DECISION.
/2/ THE REGULATIONS RELIED ON (DEPARTMENT OF LABOR SUPPLEMENT (DLS)
610) PROVIDE IN PERTINENT PART:
1-1. GENERAL PROVISIONS
A. AUTHORITY OF DEPARTMENTS. THE AUTHORITY WITHIN THE DEPARTMENT OF
LABOR TO ESTABLISH
HOURS OF DUTY RESTS WITH THE DIRECTOR OF PERSONNEL.
/3/ IN ITS STATEMENT OF POSITION, THE AGENCY REQUESTED THE COUNCIL TO
DISMISS THE UNION'S APPEAL AS MOOT, ON THE GROUNDS THAT THE PARTIES
REACHED AGREEMENT ON A CONTRACT WHICH DEALS WITH THE DISPUTED MATTER
OTHERWISE SUBJECT TO COUNCIL REVIEW, AND WHICH CONTAINS NEITHER A SAVING
CLAUSE NOR OPERATIVE REOPENING CLAUSE. IN SUPPORT THE AGENCY CITED AFGE
LOCAL 1960 AND NAVAL AIR REWORK FACILITY, NAVAL AIR STATION, PENSACOLA,
FLORIDA, FLRC NO. 70A-6 (JANUARY 7, 1971), REPORT NO. 2, FEDERAL
EMPLOYEES METAL TRADES COUNCIL OF CHARLESTON AND CHARLESTON NAVAL
SHIPYARD, CHARLESTON, SOUTH CAROLINA, FLRC NO. 73A-10 (MAY 23, 1973),
REPORT NO. 39 AND AFGE LOCAL 1199 AND COMMANDER 57TH COMBAT SUPPORT
GROUP (TAC), NELLIS AIR FORCE BASE, LAS VEGAS, NEVADA, FLRC NO. 73A-47
(DECEMBER 12, 1973), REPORT NO. 46. WE ADHERE TO THE PRINCIPLE
ESTABLISHED BY THE CITED CASES. HOWEVER, WE FIND SUCH PRINCIPLE
INAPPLICABLE IN THE PRESENT CASE SINCE THE AGENCY DID NOT ESTABLISH THAT
THE COLLECTIVE BARGAINING AGREEMENT, UPON WHICH ITS CLAIM WAS BASED, HAD
BEEN EXECUTED.
/4/ THE AGENCY, IN ITS STATEMENT OF POSITION, ALSO CONTENDED THAT THE
UNION'S PROPOSAL IS EXCLUDED FROM THE BARGAINING OBLIGATION BY SECTION
12(B) OF THE ORDER. IN VIEW OF OUR DECISION HEREIN, WE FIND IT
UNNECESSARY TO REACH AND, THEREFORE, MAKE NO RULING AS TO THIS
CONTENTION.
/5/ AS INDICATED, THE UNION CITES NO SPECIFIC PROVISIONS OF LAW OR
CSC ISSUANCES TO SUPPORT ITS ASSERTION. MOREOVER, SUCH A CLAIM THAT
"FLEXTIME" IS "ALLOWABLE," I.E., THAT IT IS NEITHER PROHIBITED NOR
REQUIRED, UNDER LAW AND CSC ISSUANCES DOES NOT IN ANY MANNER RAISE AN
ISSUE BEFORE US AS TO WHETHER THE AGENCY REGULATIONS INVOLVED THEMSELVES
VIOLATE SUCH LAW AND CSC ISSUANCES.
/6/ MORE FULLY, SECTION 11(A) PROVIDES, IN PERTINENT PART, THAT:
SEC. 11. NEGOTIATION OF AGREEMENTS. (A) AN AGENCY AND A LABOR
ORGANIZATION THAT HAS BEEN
ACCORDED EXCLUSIVE RECOGNITION, . . . SHALL MEET . . . AND CONFER . .
. WITH RESPECT TO PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING
WORKING CONDITIONS, SO FAR AS MAY BE APPROPRIATE UNDER APPLICABLE LAWS
AND REGULATIONS, INCLUDING POLICIES SET FORTH IN THE FEDERAL PERSONNEL
MANUAL; PUBLISHED AGENCY POLICIES AND REGULATIONS . . . AND THIS ORDER.
/7/ LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1969), P. 38.
/8/ SEE, E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 2241
AND VETERANS ADMINISTRATION HOSPITAL, DENVER, COLORADO, FLRC NO. 74A-67
(NOVEMBER 28, 1975), REPORT NO. 92; NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES AND U.S. DEPARTMENT OF COMMERCE, NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION, NATIONAL WEATHER SERVICE, FLRC NO. 74A-20
(JANUARY 27, 1975), REPORT NO. 62; LODGE 2424, IAM-AW AND KIRK ARMY
HOSPITAL AND ABERDEEN RESEARCH AND DEVELOPMENT CENTER, ABERDEEN, MD.,
FLRC NO. 72A-18 (SEPTEMBER 17, 1973), REPORT NO. 44; SEATTLE CENTER
CONTROLLER'S UNION AND FEDERAL AVIATION ADMINISTRATION, FLRC NO. 71A-57
(MAY 9, 1973), REPORT NO. 37; NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 779 AND DEPARTMENT OF THE AIR FORCE, SHEPPARD AIR FORCE BASE
TEXAS, FLRC NO. 71A-60 (APRIL 3, 1973), REPORT NO. 36.
/9/ UNITED FEDERATION OF COLLEGE TEACHERS LOCAL 1460 AND U.S.
MERCHANT MARINE ACADEMY, FLRC NO. 71A-15 (NOVEMBER 20, 1972), REPORT NO.
30; ACCORD, CASES CITED NOTE 8 SUPRA.
/10/ CASES CITED NOTES 8 AND 9 SUPRA.
/11/ IN THIS REGARD WE DO NOT, OF COURSE, PASS ON WHETHER THE AGENCY
REGULATION WOULD PROPERLY LIMIT NEGOTIATIONS UNDER SECTION 11(A) AND (C)
OF E.O. 11491 AS RECENTLY AMENDED BY E.O. 11838. THAT IS, WE DO NOT
PASS UPON WHETHER THERE IS A "COMPELLING NEED" FOR THE REGULATION UNDER
PART 2413 OF THE COUNCIL'S RULES AND REGULATIONS (40 FR 43884).
/12/ THE UNION'S REQUEST FOR ORAL ARGUMENT IS ALSO DENIED SINCE THE
ISSUES AND THE POSITIONS OF THE PARTIES IN THIS CASE ARE ADEQUATELY
REFLECTED IN THE RECORD BEFORE THE COUNCIL.
/13/ THE SECRETARY OF LABOR DID NOT PARTICIPATE IN THIS DECISION.
3 FLRC 787; FLRC NO. 74A-22; DECEMBER 9, 1975.
DEFENSE SUPPLY AGENCY,
DEFENSE PROPERTY DISPOSAL OFFICE,
ABERDEEN PROVING GROUND,
ABERDEEN, MARYLAND
AND
LOCAL LODGE 2424, INTERNATIONAL
ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, AFL-CIO
(SYNOPSIS) FLRC NO. 74A-22
DEFENSE SUPPLY AGENCY, DEFENSE PROPERTY DISPOSAL OFFICE, ABERDEEN
PROVING GROUND, ABERDEEN, MARYLAND, A/SLMR NO. 360. THIS APPEAL AROSE
FROM A DECISION AND ORDER OF THE ASSISTANT SECRETARY, WHO, UPON A
COMPLAINT FILED BY LOCAL LODGE 2424, INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS, AFL-CIO (IAM), FOUND THAT THE AGENCY
(DSA) VIOLATED SECTION 19(A)(5) AND (1) OF THE ORDER BY ITS CONDUCT
FOLLOWING THE TRANSFER TO DSA OF A NUMBER OF EMPLOYEES FROM A MORE
COMPREHENSIVE UNIT REPRESENTED BY IAM AT ARMY'S ABERDEEN PROVING GROUND
COMMAND, IN THE COURSE OF A BONA FIDE REORGANIZATION OF THE PROPERTY
DISPOSAL FUNCTIONS OF THE DEPARTMENT OF DEFENSE. SPECIFICALLY, THE
ASSISTANT SECRETARY FOUND THAT DSA VIOLATED SECTION 19(A)(5) BY FAILING
TO ACCORD APPROPRIATE RECOGNITION TO IAM AND FAILING TO HONOR AN
EXISTING NEGOTIATED AGREEMENT BETWEEN IAM AND ARMY; AND THAT BY SUCH
CONDUCT, AND BY THREATENING TO REVOKE DUES WITHHOLDING AUTHORIZATIONS,
DSA ALSO VIOLATED SECTION 19(A)(1). FURTHER, THE ASSISTANT SECRETARY
ISSUED A BROAD REMEDIAL ORDER, EXTENDING BENEFITS NOT ONLY TO IAM BUT
ALSO TO "SIMILARLY SITUATED" LABOR ORGANIZATIONS. UPON APPEAL BY DSA,
THE COUNCIL ACCEPTED THE PETITION FOR REVIEW, ON THE GROUNDS THAT MAJOR
POLICY ISSUES WERE PRESENTED BY THE DECISION OF THE ASSISTANT SECRETARY,
INCLUDING: (1) THE APPLICABILITY OF THE COUNCIL'S DECISION IN THE
AVSCOM CASE, FLRC NO. 72A-30 (REPORT NO. 42); (2) THE PROPRIETY OF THE
CO-EMPLOYER DOCTRINE AS ESTABLISHED BY THE ASSISTANT SECRETARY; (3) THE
CONFORMITY OF THE ASSISTANT SECRETARY'S DECISION TO THE REQUIREMENTS OF
SECTION 10(B) OF THE ORDER; (4) THE IMPACT OF "SUCCESSORSHIP" CRITERIA;
(5) THE EFFECT OF CIVIL SERVICE COMMISSION REGULATIONS CONCERNING DUES
WITHHOLDING; AND (6) THE PROPRIETY OF THE ASSISTANT SECRETARY'S
EXTENDING HIS DECISION AND ORDER TO "SIMILARLY SITUATED" LABOR
ORGANIZATIONS. (REPORT NO. 53.)
COUNCIL ACTION (DECEMBER 9, 1975). AS TO (1), THE COUNCIL HELD THAT
THE ASSISTANT SECRETARY MISCONCEIVED, AND THEREBY FAILED PROPERLY TO
APPLY, THE MEANING AND IMPORT OF THE COUNCIL'S AVSCOM DECISION. WITH
REGARD TO (2), THE COUNCIL HELD THAT THE CO-EMPLOYER DOCTRINE, AS
FASHIONED AND APPLIED BY THE ASSISTANT SECRETARY IN THE PRESENT CASE, IS
WHOLLY INCONSISTENT WITH THE LANGUAGE AND PURPOSES OF THE ORDER AND MUST
BE REJECTED. AS TO (3), THE COUNCIL, RELYING ON ITS DECISION IN THE
TULSA AFS CASE, FLRC NO. 74A-28, (REPORT NO. 69), RULED THAT THE
ASSISTANT SECRETARY FAILED TO MAKE THE REQUIRED DETERMINATIONS AND TO
ACCORD THE NECESSARY EQUAL WEIGHT TO EACH OF THE CRITERIA FOR AN
APPROPRIATE UNIT, AS COMPELLED BY SECTION 10(B) OF THE ORDER. REGARDING
(4), THE COUNCIL SET FORTH THE CRITERIA FOR DETERMINING "SUCCESSORSHIP,"
THE CONSEQUENCES OF SUCH RELATIONSHIP, AND THE RELEVANT PROCEDURES
PROVIDED FOR OR AVAILABLE UNDER THE ORDER, AS APPLICABLE IN
CIRCUMSTANCES SUCH AS THOSE INVOLVED IN THE INSTANT CASE. AS TO (5),
THE COUNCIL HELD THAT DSA COMPLIED WITH THE APPLICABLE CIVIL SERVICE
COMMISSION REGULATIONS CONCERNING DUES WITHHOLDING AS REQUIRED BY
SECTION 21 OF THE ORDER. FINALLY, WITH REGARD TO (6), THE COUNCIL HELD
THAT THE ASSISTANT SECRETARY IMPROPERLY EXTENDED HIS DECISION AND ORDER
TO "SIMILARLY SITUATED" LABOR ORGANIZATIONS IN THIS CASE. ACCORDINGLY,
THE COUNCIL SET ASIDE THE ASSISTANT SECRETARY'S DECISION AND ORDER AND
REMANDED THE CASE TO HIM FOR APPROPRIATE ACTION IN A MANNER CONSISTENT
WITH THE COUNCIL'S DECISION.
THIS APPEAL AROSE FROM A DECISION AND ORDER OF THE ASSISTANT
SECRETARY, UPON A COMPLAINT FILED BY LOCAL LODGE 2424 OF THE
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO
(HEREINAFTER REFERRED TO AS IAM). THE ASSISTANT SECRETARY FOUND THAT
THE DEFENSE SUPPLY AGENCY (HEREINAFTER REFERRED TO AS DSA), DEFENSE
PROPERTY DISPOSAL OFFICE AT ABERDEEN PROVING GROUND, ABERDEEN, MARYLAND,
VIOLATED SECTION 19(A)(5) OF THE ORDER BY FAILING TO ACCORD APPROPRIATE
RECOGNITION TO A LABOR ORGANIZATION QUALIFIED FOR SUCH RECOGNITION AND
FAILING TO HONOR AN EXISTING NEGOTIATED AGREEMENT; AND BY SUCH CONDUCT,
AND BY THREATENING TO REVOKE DUES WITHHOLDING AUTHORIZATIONS, ALSO
VIOLATED SECTION 19(A)(1) OF THE ORDER. /1/ THE PERTINENT FACTS AS
FOUND BY THE ASSISTANT SECRETARY ARE SET FORTH BELOW.
ON JULY 29, 1970, IAM WAS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE
FOR A UNIT OF APPROXIMATELY 1620 EMPLOYEES OF THE DEPARTMENT OF THE
ARMY'S ABERDEEN PROVING GROUND COMMAND (APGC), AT ABERDEEN PROVING
GROUND, ABERDEEN, MARYLAND. ON AUGUST 9, 1972, THE UNION ENTERED INTO A
NEGOTIATED AGREEMENT WITH APGC COVERING THE EMPLOYEES IN THE UNIT.
SHORTLY THEREAFTER, UNDER THE AUTHORITY GRANTED BY THE DEPARTMENT OF
DEFENSE (DOD), A DEFENSE PROPERTY DISPOSAL SERVICE (DPDS) WAS
ESTABLISHED UNDER DSA, COMPOSED BASICALLY OF DEFENSE PROPERTY DISPOSAL
OFFICES (DPDO'S). TO STAFF THESE OFFICES, DOD DECIDED THAT EMPLOYEES
PERFORMING SURPLUS PERSONAL PROPERTY DISPOSAL FUNCTIONS IN THE
DEPARTMENTS OF THE ARMY, NAVY AND AIR FORCE, AND IN DSA, WERE ALL TO BE
TRANSFERRED TO THE NEW DPDS WITHIN DSA. UNDER THIS "TRANSFER-IN-PLACE,"
THE TRANSFERRED EMPLOYEES WOULD BE UNDER THE COMMAND OF DSA BUT CONTINUE
AT THE SAME DUTY STATIONS PERFORMING ESSENTIALLY THE SAME DUTIES AS
BEFORE THE TRANSFER, WITH NO CHANGES IN JOB DESCRIPTIONS,
CLASSIFICATIONS AND GRADES. ONE OF THESE OFFICES WAS ESTABLISHED AT
ABERDEEN PROVING GROUND, CONSISTING OF 27 EMPLOYEES, 15 OF WHOM WERE
MEMBERS OF IAM'S COLLECTIVE BARGAINING UNIT AT APGC.
UPON LEARNING OF THE PROPOSED TRANSFER, IAM TOOK THE POSITION WITH
DSA THAT ITS AGREEMENT WITH APGC CONTINUED TO COVER THE 15 EMPLOYEES TO
BE TRANSFERRED TO DSA FROM ARMY. DSA, HOWEVER, NOTIFIED IAM, AS WELL AS
OTHER LABOR ORGANIZATIONS WITH AGREEMENTS COVERING OTHER PROPERTY
DISPOSAL EMPLOYEES TRANSFERRED TO DSA, THAT "THE DUES WITHHOLDING
PRIVILEGES OF THOSE EMPLOYEES WOULD BE EXTENDED FOR A SIX MONTH PERIOD .
. . TO ALLOW FOR THE RESOLUTION OF SUCH REPRESENTATION AND SUCCESSORSHIP
ISSUES AS MAY ARISE INCIDENT TO THIS REORGANIZATION." ON APRIL 22, 1973,
THE 14 UNIT EMPLOYEES PERFORMING PROPERTY DISPOSAL FUNCTIONS AT APGC
WERE ADMINISTRATIVELY TRANSFERRED TO DSA, AND THEREAFTER DSA REJECTED
FURTHER IAM REQUESTS THAT DSA CONTINUE DUES WITHHOLDING FOR THE 15
TRANSFERRED EMPLOYEES BEYOND THE 6-MONTH PERIOD. DSA TOOK THE POSITION
THAT THE ABERDEEN AGREEMENT WAS BETWEEN IAM AND ARMY, AND THAT THE
TRANSFERRED EMPLOYEES WERE NO LONGER PART OF THE APGC UNIT, BUT WERE
DPDS EMPLOYEES. DSA OFFERED, ALTERNATIVELY TO RECOGNIZE ANY UNION WHICH
WAS CERTIFIED BY THE DEPARTMENT OF LABOR "AS THE DULY ELECTED
REPRESENTATIVE OF THE EMPLOYEES OF DPDS OR OF ANY APPROPRIATE BARGAINING
UNIT MADE UP OF DPDS EMPLOYEES."
IAM THEREUPON FILED A COMPLAINT, ALLEGING THAT DSA HAD VIOLATED
SECTION 19(A)(1), (2), (5) AND (6) OF THE ORDER BY REFUSING TO RECOGNIZE
IAM AS THE REPRESENTATIVE OF THE 15 TRANSFERRED EMPLOYEES, BY REFUSING
TO APPLY THE TERMS OF THE IAM-APGC AGREEMENT AND BY IMPROPERLY
THREATENING TO REVOKE THE DUES WITHHOLDING AUTHORIZATIONS OF ITS
EMPLOYEES. IN RESPONSE, DSA TOOK THE POSITION THAT IAM SHOULD NOT BE
PERMITTED TO GAIN CERTIFICATION AND RECOGNITION AS THE EXCLUSIVE
BARGAINING REPRESENTATIVE OF ANY BARGAINING UNIT IN DPDS WITHOUT FILING
A REPRESENTATION PETITION AND WINNING AN ELECTION. ADDITIONALLY, IN ITS
RESPONSE TO THE IAM COMPLAINT, DSA RELIED ON THE COUNCIL'S DECISION IN
THE AVSCOM CASE, /2/ AS PROTECTING IT FROM ANY UNFAIR LABOR PRACTICE
FINDING.
THE ASSISTANT SECRETARY CONCLUDED THAT DSA HAD VIOLATED SECTION
19(A)(1) AND (5) OF THE ORDER. HE FOUND, AMONG OTHER THINGS, THAT, AS
THE 15 UNIT EMPLOYEES PERFORMED THE SAME DUTIES UNDER THE SAME IMMEDIATE
SUPERVISION AFTER THE REORGANIZATION AND THEIR ADMINISTRATIVE
TRANSFER-IN-PLACE INTO THE DPDO UNDER THE COMMAND OF DSA AS BEFORE, THEY
RETAINED A COMMUNITY OF INTEREST WITH THE ARMY'S EMPLOYEES IN THE APGC
BARGAINING UNIT. /3/ HE FURTHER STATED THAT WHILE DSA AND ARMY WERE
SEPARATE EMPLOYING AGENCIES WITH DIFFERENT SPECIFIC MISSIONS AND
FUNCTIONS, THEY WERE BOTH DOD COMPONENTS AND, UNDER THE CIRCUMSTANCES,
MUST BE VIEWED AS "CO-EMPLOYERS" OF ALL THE EMPLOYEES IN THE UNIT "WITH
COMMON RESPONSIBILITIES FOR MAINTAINING THE PRESENT TERMS AND CONDITIONS
OF EMPLOYMENT . . . INCLUDING ANY NEGOTIATED AGREEMENT THAT IS IN
EXISTENCE." ACCORDINGLY, THE ASSISTANT SECRETARY FOUND THAT DSA HAD
IMPROPERLY WITHDRAWN RECOGNITION FROM THE UNION WHICH WAS "QUALIFIED FOR
SUCH RECOGNITION" IN VIOLATION OF SECTION 19(A)(5), AND BY SUCH CONDUCT
HAD ALSO VIOLATED SECTION 19(A)(1). HE FURTHER FOUND THAT THE THREAT TO
TERMINATE DUES WITHHOLDING 6 MONTHS AFTER THE EMPLOYEES' ADMINISTRATIVE
TRANSFER TO DPDS, IF NO REPRESENTATION PETITION WAS FILED, CONSTITUTED
AN ADDITIONAL VIOLATION OF SECTION 19(A)(1).
IN SO FINDING, THE ASSISTANT SECRETARY REJECTED DSA'S RELIANCE ON
AVSCOM, SINCE HE VIEWED THAT DECISION AS REQUIRING THE AGENCY TO
INITIATE APPROPRIATE REPRESENTATION PROCEEDINGS TO RESOLVE THE
LEGITIMATE QUESTIONS RAISED AS A RESULT OF THE REORGANIZATION, RATHER
THAN UNILATERALLY TERMINATING THE UNION'S RECOGNITION AND SETTING ITS
OWN RULES AS TO HOW NEW RECOGNITION WOULD BE OBTAINED.
AS A REMEDY, IN VIEW OF "THE BROAD SCOPE OF THE REORGANIZATION . . .
AFFECTING THE MAJOR COMPONENTS OF THE DEPARTMENT OF DEFENSE AND ITS
IMPLEMENTATION ON A NATIONWIDE BASIS BY DSA," THE ASSISTANT SECRETARY
DETERMINED THAT A "BROAD CEASE AND DESIST ORDER" WAS WARRANTED. HE
THEREFORE ISSUED AN ORDER REQUIRING DSA, AMONG OTHER THINGS, TO CEASE
AND DESIST FROM REFUSING TO ACCORD APPROPRIATE RECOGNITION TO IAM "AND
SIMILARLY SITUATED LABOR ORGANIZATIONS," AND FROM REFUSING TO HONOR THE
EXISTING NEGOTIATED AGREEMENT AS IT PERTAINS TO DPDO EMPLOYEES AT
ABERDEEN AS WELL AS "EXISTING NEGOTIATED AGREEMENTS OF SIMILARLY
SITUATED LABOR ORGANIZATIONS AS THEY PERTAIN TO OTHER (DPDO) EMPLOYEES."
IAM'S ALLEGATIONS OF SECTION 19(A)(2) AND (6) VIOLATIONS BY DSA WERE
DISMISSED AND ARE NOT AT ISSUE HERE.
DSA APPEALED TO THE COUNCIL ALLEGING THAT THE ASSISTANT SECRETARY'S
DECISION PRESENTED MAJOR POLICY ISSUES AND WAS ARBITRARY AND CAPRICIOUS.
THE COUNCIL ACCEPTED THE PETITION FOR REVIEW, HAVING DETERMINED THAT
MAJOR POLICY ISSUES WERE PRESENTED BY THE SUBJECT DECISION OF THE
ASSISTANT SECRETARY, INCLUDING: (1) THE APPLICABILITY OF THE COUNCIL'S
DECISION IN THE AVSCOM CASE; (2) THE PROPRIETY OF THE DOCTRINE OF
"CO-EMPLOYERS" AS ESTABLISHED BY THE ASSISTANT SECRETARY; (3) THE
CONFORMITY OF THE DECISION TO THE REQUIREMENTS OF SECTION 10(B) OF THE
ORDER; (4) THE IMPACT OF "SUCCESSORSHIP" CRITERIA IN THIS CASE; (5)
THE EFFECT OF CIVIL SERVICE COMMISSION REGULATIONS CONCERNING DUES
WITHHOLDING IN THE CIRCUMSTANCES HERE INVOLVED; AND (6) THE PROPRIETY
OF EXTENDING THE DECISION AND ORDER TO LABOR ORGANIZATIONS "SIMILARLY
SITUATED" TO IAM, WHICH ORGANIZATIONS WERE NOT "PARTIES" TO THE
PROCEEDING BEFORE THE ASSISTANT SECRETARY.
DSA ALSO REQUESTED A STAY OF THE DECISION PENDING COUNCIL RESOLUTION
OF THE APPEAL. THE COUNCIL DETERMINED THAT ISSUANCE OF A STAY WAS
WARRANTED IN THIS CASE AND GRANTED THE AGENCY REQUEST. /4/
BRIEFS WERE FILED BY DSA AND IAM. ADDITIONALLY, THE COUNCIL GRANTED
A NUMBER OF REQUESTS FROM INTERESTED AGENCIES AND LABOR ORGANIZATIONS,
FILED PURSUANT TO SECTION 2411.49 OF THE COUNCIL'S RULES, FOR PERMISSION
TO FILE AMICUS CURIAE BRIEFS. GENERAL SERVICES ADMINISTRATION,
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, AND DEPARTMENT OF THE
TREASURY FILED BRIEFS WITH THE COUNCIL AS AMICI CURIAE URGING, IN
EFFECT, THAT THE SUBJECT DECISION OF THE ASSISTANT SECRETARY BE SET
ASIDE; AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (AFGE) AND METAL
TRADES DEPARTMENT OF THE AFL-CIO, AND NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, FILED BRIEFS AS AMICI CURIAE URGING, IN EFFECT, THAT THE
DECISION BE SUSTAINED. AFGE ALSO REQUESTED ORAL ARGUMENT. /5/
SUBSEQUENT TO ACCEPTANCE OF THE INSTANT CASE, THE COUNCIL COMMENCED
ITS GENERAL REVIEW OF E.O. 11491, AS AMENDED. AMONG THE AREAS FOCUSED
UPON DURING THE REVIEW WAS THE STATUS OF NEGOTIATED AGREEMENTS DURING
REORGANIZATION. THE COUNCIL DETERMINED THAT THIS AREA OF THE GENERAL
REVIEW WAS DIRECTLY APPLICABLE TO THE ISSUES RAISED IN THIS CASE; AND,
THEREFORE, THAT THE FINAL DISPOSITION OF THE APPEAL SHOULD BE DEFERRED
PENDING COMPLETION OF THE GENERAL REVIEW. ON FEBRUARY 6, 1975, THE
PRESIDENT SIGNED E.O. 11838, AMENDING E.O. 11491, EFFECTIVE ON OR AFTER
MAY 7, 1975.
AS DETAILED ABOVE, THE ASSISTANT SECRETARY FOUND, IN ESSENCE, THAT
DSA VIOLATED SECTION 19(A)(5) AND (1) OF THE ORDER BY ITS CONDUCT
FOLLOWING THE TRANSFER TO DSA OF 15 EMPLOYEES FROM A UNIT OF ABOUT 1620
EMPLOYEES REPRESENTED BY IAM AT ARMY'S ABERDEEN PROVING GROUND COMMAND,
IN THE COURSE OF A BONA FIDE REORGANIZATION OF DOD'S PROPERTY DISPOSAL
FUNCTIONS. MORE PARTICULARLY, THE ASSISTANT SECRETARY HELD THAT DSA
VIOLATED 19(A)(5) BY FAILING TO ACCORD APPROPRIATE RECOGNITION TO IAM
AND FAILING TO HONOR AN EXISTING NEGOTIATED AGREEMENT PREVIOUSLY ENTERED
INTO BETWEEN IAM AND THE ARMY COMMAND; THAT BY SUCH ACTION, AND BY
THREATENING TO REVOKE DUES WITHHOLDING AUTHORIZATIONS OF THE TRANSFERRED
EMPLOYEES, DSA FURTHER VIOLATED 19(A)(1); AND THAT A BROAD REMEDIAL
ORDER SHOULD ISSUE EXTENDING BENEFITS NOT ONLY TO IAM BUT ALSO TO
"SIMILARLY SITUATED LABOR ORGANIZATIONS" AFFECTED BY THE ENTIRE
REORGANIZATION.
THE COUNCIL ACCEPTED DSA'S PETITION FOR REVIEW ON THE GROUND THAT
MAJOR POLICY ISSUES WERE PRESENTED BY THE SUBJECT DECISION OF THE
ASSISTANT SECRETARY. WE TURN NOW TO THE CONSIDERATION OF THESE MAJOR
POLICY ISSUES AND THE PRINCIPLES WHICH PROPERLY CONTROL THE
DETERMINATION OF A REORGANIZATION CASE SUCH AS HERE INVOLVED UNDER THE
ORDER.
ISSUE 1. APPLICABILITY OF COUNCIL'S DECISION IN AVSCOM CASE.
IN THE AVSCOM CASE, NOTE 2, SUPRA, THE SITUATION WAS ESSENTIALLY AS
FOLLOWS: ON JULY 1, 1971, A REORGANIZATION WAS EFFECTED WITHIN THE ARMY
AVIATION SYSTEMS COMMAND (AVSCOM), WHEREBY 49 OF 53 HEADQUARTERS
EMPLOYEES REPRESENTED IN A SEPARATE UNIT BY AFGE WERE COMBINED WITH 35
EMPLOYEES FROM A NEARBY INACTIVATED DEPOT UNIT REPRESENTED BY THE
OPERATING ENGINEERS, INTO A NEWLY FORMED SUBORDINATE ELEMENT OF AVSCOM
HEADQUARTERS. THIS REORGANIZATION OCCURRED WHILE NEGOTIATIONS BETWEEN
AVSCOM AND AFGE WERE IN PROGRESS; AND ITS ANTICIPATION PROMPTED ARMY TO
FILE A PETITION WITH THE ASSISTANT SECRETARY IN WHICH ARMY CONTENDED
THAT A SINGLE OVERALL UNIT WAS NOW APPROPRIATE AND REQUESTED AN ELECTION
TO DETERMINE WHICH OF THE TWO UNIONS REPRESENTED THAT UNIT. /6/ DURING
THE PENDENCY OF THAT PETITION, AFGE AND AVSCOM CONTINUED TO NEGOTIATE
AND IN OCTOBER 1971 REACHED FULL ACCORD. HOWEVER, AVSCOM REFUSED TO
SIGN THE AGREEMENT UNTIL THE ASSISTANT SECRETARY RESOLVED THE
REPRESENTATION ISSUE. AFGE THEREUPON FILED A 19(A)(6) COMPLAINT BY
REASON OF AVSCOM'S REFUSAL TO SIGN THE AGREEMENT.
IN MAY 1972, THE ASSISTANT SECRETARY ISSUED HIS DECISION IN THE
REPRESENTATION CASE, DISMISSING THE PETITION ON THE GROUND THAT THERE
WAS INSUFFICIENT BASIS FOR THE ACTIVITY'S CLAIM THAT SEPARATE UNITS WERE
NO LONGER APPROPRIATE. (NO APPEAL WAS TAKEN TO THE COUNCIL FROM THAT
DECISION.) THEREAFTER, IN JUNE 1972, THE ASSISTANT SECRETARY ISSUED HIS
DECISION IN THE UNFAIR LABOR PRACTICE CASE, FINDING THAT, BECAUSE THE
EXISTING UNITS REMAINED VIABLE, ARMY'S REFUSAL TO SIGN THE OCTOBER 1971
AGREEMENT VIOLATED 19(A)(6). AS A REMEDY, THE ASSISTANT SECRETARY
ORDERED ARMY TO SIGN THE AGREEMENT UPON REQUEST AND TO POST THE
CUSTOMARY NOTICE. ARMY APPEALED TO THE COUNCIL, OBJECTING NOT TO THE
19(A)(6) FINDING OR THE REQUIRED SIGNING OF THE AGREEMENT, BUT TO THE
POSTING REQUIREMENT.
IN ITS AVSCOM DECISION, ISSUED IN JULY 1973, THE COUNCIL UPHELD THE
POSTING REQUIREMENT IN THE CIRCUMSTANCES OF THAT APPEAL. HOWEVER, THE
COUNCIL ALSO ADDRESSED THE UNDERLYING DILEMMA FACED BY AGENCY MANAGEMENT
IN THE COURSE OF SUCH A REORGANIZATION, AND THE DERIVATIVE
RESPONSIBILITIES OF THE ASSISTANT SECRETARY UNDER THE ORDER. IN MORE
DETAIL, THE COUNCIL STATED AT PP. 5-6 OF ITS DECISION:
. . . (W)E RECOGNIZE THE SERIOUS DILEMMA WHICH AGENCY MANAGEMENT IS
IN WHEN FACED WITH
CIRCUMSTANCES SUCH AS THOSE PRESENT IN THIS CASE. THAT IS, AS A
RESULT OF THE REORGANIZATION
OF AVSCOM, THE ARMY HAD A DOUBT AS TO THE CONTINUED APPROPRIATENESS
OF THE EXISTING UNITS, AND
SOUGHT TO RESOLVE THAT DOUBT BY THE FILING OF A PETITION WITH THE
ASSISTANT SECRETARY. AS
STATED ABOVE, IF THE EXISTING UNITS HAD BEEN FOUND TO BE
INAPPROPRIATE DUE TO THE
REORGANIZATION OF AVSCOM, THE ARMY WOULD NOT HAVE BEEN OBLIGATED TO
SIGN THE CONTRACT. IN
FACT, TO HAVE SIGNED IT COULD, AT LEAST POTENTIALLY, HAVE SUBJECTED
IT TO A CHARGE THAT IT HAD
VIOLATED SECTION 19(A)(3) OF THE ORDER. YET, BECAUSE THE EXISTING
UNITS WERE SUBSEQUENTLY
FOUND TO BE APPROPRIATE, THE ASSISTANT SECRETARY HELD THAT THE ARMY
WAS OBLIGATED TO SIGN THE
NEGOTIATED AGREEMENT. SINCE THERE WERE NO OTHER ALLEGATIONS OF
MISCONDUCT INVOLVED IN THIS
CASE, THE DISPOSITION OF THE REPRESENTATION ISSUE WAS DETERMINATIVE
OF THE DISPOSITION OF THE
19(A)(6) COMPLAINT. IN OUR VIEW, THIS TYPE OF A DILEMMA OR RISK
PLACES AN UNDUE BURDEN ON AN
AGENCY. THAT IS, WHERE AN AGENCY HAS ACTED IN APPARENT GOOD FAITH
AND AVAILED ITSELF OF THE
REPRESENTATION PROCEEDINGS OFFERED IN ORDER TO RESOLVE LEGITIMATE
QUESTIONS AS TO THE CORRECT
BARGAINING UNIT, AND WHERE NO OTHER EVIDENCE OF MISCONDUCT IS
INVOLVED, AN AGENCY SHOULD NOT
BE FORCED TO ASSUME THE RISK OF VIOLATING EITHER SECTION 19(A)(3) OR
SECTION 19(A)(6) DURING
THE PERIOD IN WHICH THE UNDERLYING REPRESENTATION ISSUE IS STILL
PENDING BEFORE THE ASSISTANT
SECRETARY.
RATHER, WE BELIEVE THAT PROCEDURES CAN AND MUST BE DEVISED WHICH WILL
PERMIT AN AGENCY TO
FILE A REPRESENTATION PETITION IN GOOD FAITH, TO AWAIT THE DECISION
OF THE ASSISTANT SECRETARY
WITH RESPECT TO THAT PETITION, AND TO BE GIVEN A REASONABLE
OPPORTUNITY TO COMPLY WITH THE
CONSEQUENCES WHICH FLOW FROM THE REPRESENTATION DECISION, BEFORE THAT
AGENCY INCURS THE RISK
OF AN UNFAIR LABOR PRACTICE FINDING. SINCE IT DOES NOT VIOLATE THE
ORDER TO RAISE A QUESTION
CONCERNING REPRESENTATION IN GOOD FAITH, THE PROCEDURES EMPLOYED TO
EFFECTUATE THE PURPOSES OF
THE ORDER MUST PERMIT AN AGENCY TO DO SO WITHOUT RISKING AN UNFAIR
LABOR PRACTICE FINDING.
ACCORDINGLY, WHILE WE LEAVE TO THE DISCRETION AND JUDGMENT OF THE
ASSISTANT SECRETARY THE
DETERMINATION AS TO THE PRECISE PROCEDURES WHICH WILL BEST ACCOMPLISH
THIS RESULT, WE DIRECT
THAT HIS PROCEDURES BE REVIEWED AND REVISED SO THAT, IN THE FUTURE,
AGENCIES WILL BE PERMITTED
TO AWAIT HIS DECISION ON A REPRESENTATION PETITION WITHOUT INCURRING
THE RISK OF AN UNFAIR
LABOR PRACTICE FINDING.
AS PREVIOUSLY MENTIONED, DSA HERE RELIED ON THE COUNCIL'S AVSCOM
DECISION IN DEFENSE OF ITS CONDUCT AFTER THE APRIL 1973 REORGANIZATION
IN REFUSING IN GOOD FAITH TO RECOGNIZE IAM UNTIL THAT UNION WAS
CERTIFIED AS THE DULY ELECTED REPRESENTATIVE OF THE DPDS EMPLOYEES OR OF
ANY APPROPRIATE UNIT MADE UP OF DPDS EMPLOYEES, AND IN STATING THAT IT
WOULD TERMINATE DUES WITHHOLDING PROVIDED FOR UNDER THE IAM-APGC
AGREEMENT AFTER 6 MONTHS IF NO REPRESENTATION PETITION COVERING THE
EMPLOYEES WAS FILED. HOWEVER, THE ASSISTANT SECRETARY RULED THAT AVSCOM
WAS NOT DISPOSITIVE BECAUSE:
. . . IN THE INSTANT CASE, IT IS CLEAR THAT (DSA) DID NOT "AVAIL
ITSELF OF THE
REPRESENTATION PROCEEDINGS OFFERED IN ORDER TO RESOLVE LEGITIMATE
QUESTIONS AS TO THE CORRECT
BARGAINING UNIT" BUT, RATHER, IT UNILATERALLY TERMINATED RECOGNITION
AND SET ITS OWN RULES FOR
HOW A NEW RECOGNITION WOULD BE OBTAINED.
IN OUR OPINION, THE ASSISTANT SECRETARY HAS MISCONCEIVED, AND THEREBY
FAILED PROPERLY TO APPLY, THE MEANING AND IMPORT OF THE COUNCIL'S AVSCOM
DECISION.
AS INDICATED IN AVSCOM, THE COUNCIL WAS OF THE VIEW THAT WHERE AN
AGENCY, AS A RESULT OF A REORGANIZATION, HAS GOOD FAITH DOUBTS
CONCERNING THE STATUS OF A UNION AS THE EXCLUSIVE REPRESENTATIVE OF ITS
EMPLOYEES IN AN APPROPRIATE UNIT, THE ORDER REQUIRES (1) THAT THE AGENCY
BE ENABLED TO INITIATE A REPRESENTATION PROCEEDING WHICH WOULD RESOLVE
THESE DOUBTS; AND (2) THAT THE PROCEDURES OF THE ASSISTANT SECRETARY
MUST PRECISELY IMPLEMENT THIS RIGHT OF AN AGENCY TO INITIATE SUCH A
REPRESENTATION PROCEEDING AND THEREBY TO AVERT THE RISK OF AN UNFAIR
LABOR PRACTICE FINDING.
WHILE THE ASSISTANT SECRETARY SOUGHT TO DISTINGUISH THE INSTANT CASE
FROM AVSCOM BECAUSE DSA DID NOT INVOKE A REPRESENTATION PROCEEDING, HE
FAILED SPECIFICALLY TO ADDRESS THE FIRST QUESTION, NAMELY: WHETHER THE
"REPRESENTATION PROCEEDINGS OFFERED" BY THE ASSISTANT SECRETARY WOULD
HAVE LED TO THE ASSISTANT SECRETARY'S RESOLUTION OF IAM'S REPRESENTATIVE
STATUS, UPON A REPRESENTATION PETITION FILED BY DSA. /7/ FOR IAM WAS
NOT THE CURRENTLY RECOGNIZED OR CERTIFIED REPRESENTATIVE OF A SEPARATE
UNIT OF THESE DSA EMPLOYEES; DSA WAS NOT QUESTIONING IAM'S
REPRESENTATIVE STATUS IN THE APGC UNIT; AND IAM, AT THE TIME THE
REORGANIZATION WAS EFFECTED, APPARENTLY WAS NOT CLAIMING TO REPRESENT
THE 15 TRANSFERRED EMPLOYEES IN A SEPARATE APPROPRIATE UNIT OF DSA
EMPLOYEES, BUT WAS CLAIMING INSTEAD THAT THE AGREEMENT WITH ARMY
COVERING THAT UNIT CONTINUED TO APPLY TO THE TRANSFERRED EMPLOYEES, AND
THAT DSA WAS BOUND BY THAT AGREEMENT. MOREOVER, THE ASSISTANT SECRETARY
DID NOT EITHER ADVERT TO OR CONSIDER THE SECOND QUESTION, THAT IS,
WHETHER HIS PROCEDURES AT THE CRITICAL TIMES IN THIS CASE, WHICH
ANTEDATED AVSCOM, CLEARLY PROVIDED DSA WITH ACCESS TO REPRESENTATION
PROCEEDINGS WHICH WOULD RESOLVE THE LEGITIMATE DOUBTS OF DSA ARISING
FROM THE SUBJECT REORGANIZATION. /8/
THEREFORE, UPON THE REMAND TO BE ORDERED BY THE COUNCIL, THE
ASSISTANT SECRETARY SHOULD RECONSIDER AND PASS UPON THE APPLICABILITY OF
AVSCOM AS PROPERLY INTERPRETED AND APPLIED IN THE INSTANT CASE. /9/
FURTHER, IF UPON REMAND, THE ASSISTANT SECRETARY CONCLUDES THAT HIS
PROCEDURES FAILED TO SATISFY THE REQUIREMENTS OF AVSCOM AT TIMES
RELEVANT TO THIS CASE AND IF THESE PROCEDURES REMAIN SUBSTANTIALLY
UNCHANGED, THE ASSISTANT SECRETARY IS DIRECTED TO TAKE ACTION CONSISTENT
WITH AVSCOM. THAT IS, THE ASSISTANT SECRETARY SHALL DEVELOP NEW
PROCEDURES, OR CLARIFY EXISTING PROCEDURES, TO ENABLE AN AGENCY TO RAISE
QUESTIONS SUCH AS HERE PRESENTED SUBSEQUENT TO A REORGANIZATION
CONCERNING THE APPROPRIATENESS OF UNITS OF EMPLOYEES INVOLVED IN THE
REORGANIZATION AND THE QUALIFICATION OF LABOR ORGANIZATIONS TO BE
ACCORDED EXCLUSIVE RECOGNITION AS THE REPRESENTATIVES OF THE EMPLOYEES
IN THOSE UNITS, WITHOUT INCURRING THE RISK OF AN UNFAIR LABOR PRACTICE
FINDING.
ISSUE 2. PROPRIETY OF CO-EMPLOYER DOCTRINE ESTABLISHED BY ASSISTANT
SECRETARY.
THE ASSISTANT SECRETARY ALSO PREDICATED HIS DECISION THAT DSA
VIOLATED SECTION 19(A)(5) AND (1) OF THE ORDER IN PART ON HIS CONCLUSION
THAT:
. . . (DSA) AND THE DEPARTMENT OF THE ARMY ARE CO-EMPLOYERS VIS-A-VIS
THE EXISTING UNIT AT
ABERDEEN REPRESENTED BY THE (IAM) AND, AS SUCH, (DSA) AND THE
DEPARTMENT OF THE ARMY ARE
RESPONSIBLE FOR MAINTAINING THE PRESENT TERMS AND CONDITIONS OF
EMPLOYMENT OF ALL EMPLOYEES IN
THE UNIT INCLUDING THOSE CONTAINED IN THE EXISTING NEGOTIATED
AGREEMENT. (FOOTNOTE OMITTED.)
WHILE THE ASSISTANT SECRETARY TACITLY ACKNOWLEDGED THAT THE EMPLOYING
ENTITY BEARS THE OBLIGATION OF RECOGNITION IMPOSED UNDER SECTION 10 OF
THE ORDER, HE RELIED IN REACHING THE ABOVE-QUOTED CONCLUSION PRINCIPALLY
ON HIS FINDING THAT DSA AND ARMY ARE BOTH COMPONENTS OF DOD WHICH WAS
THE MOVING FORCE BEHIND THE REORGANIZATION, AND HIS BELIEF THAT THE
CO-EMPLOYER DOCTRINE WOULD AVERT THE "CHAOTIC LABOR-MANAGEMENT RELATIONS
SITUATION" WHICH ASSERTEDLY OBTAINED FROM THE "ADMINISTRATIVE
REORGANIZATION" OF PROPERTY DISPOSAL FUNCTIONS WITHIN DOD.
IN OUR OPINION, THE CO-EMPLOYER DOCTRINE AS THUS FASHIONED AND
APPLIED BY THE ASSISTANT SECRETARY IN THE PRESENT CASE IS WHOLLY
INCONSISTENT WITH THE LANGUAGE AND PURPOSES OF THE ORDER AND MUST BE
REJECTED.
UNDER SECTION 10 OF THE ORDER, IT IS THE EMPLOYING ENTITY WHICH IS
INTENDED AND REQUIRED TO ACCORD EXCLUSIVE RECOGNITION TO THE LABOR
ORGANIZATION DULY SELECTED BY ITS EMPLOYEES AS THEIR REPRESENTATIVE.
ALTHOUGH IN THIS CASE BOTH DSA AND ARMY ARE COMPONENTS OF DOD, AND DOD
MAY HAVE BEEN THE PROGENITOR OF THE REORGANIZATION, DSA AND ARMY HAVE
SEPARATE MISSIONS, FUNCTIONS, REGULATIONS, ADMINISTRATIONS, AND
COMMANDS; AND THERE IS NO INDICATION IN THE RECORD THAT DSA AND ARMY
EITHER BEFORE OR AFTER THE REORGANIZATION SHARED ANY COMMON CONTROL OR
DIRECTION WHATSOEVER OVER EITHER THE 15 EMPLOYEES TRANSFERRED TO DSA OR
THE REMAINING APPROXIMATELY 1600 EMPLOYEES IN THE ARMY UNIT. IN OTHER
WORDS, DSA AND ARMY RETAINED THEIR SEPARATE EMPLOYING IDENTITIES OVER
THEIR RESPECTIVE EMPLOYEES BEFORE AND AFTER THE REORGANIZATION AND EACH
COMPONENT THUS REMAINED A SEPARATE EMPLOYING "AGENCY" FOR THE PURPOSES
OF ACCORDING EXCLUSIVE RECOGNITION TO THE LABOR ORGANIZATION
REPRESENTING ITS EMPLOYEES IN AN APPROPRIATE UNIT UNDER SECTION 10 OF
THE ORDER. CONTRARY TO THE POSITION OF THE ASSISTANT SECRETARY, THE
OVERALL RESPONSIBILITIES AND INITIATIVE OF DOD WITH RESPECT TO THE
VARIOUS COMPONENTS OF DOD NEITHER DESTROYED NOR DIMINISHED IN ANY MANNER
THE SEPARATE IDENTITY OF THE RESPECTIVE COMPONENTS FROM EACH OTHER AS
EMPLOYING ENTITIES AND THEREFORE EACH COMPONENT CONTINUED TO CONSTITUTE
A SEPARATE EMPLOYING "AGENCY" FOR THE PURPOSES OF EXCLUSIVE RECOGNITION
UNDER SECTION 10 OF THE ORDER. /10/
AS TO THE "CHAOTIC" SITUATION SOUGHT TO BE AVERTED BY THE ASSISTANT
SECRETARY, WE SHARE THE CONCERN OF THE ASSISTANT SECRETARY OVER THE
NUMEROUS PROBLEMS, ESPECIALLY THE MULTIPLICITY OF REPRESENTATION
PETITIONS, WHICH MAY RESULT FROM A COMPREHENSIVE REORGANIZATION SUCH AS
HERE INVOLVED. HOWEVER, THE RESOLUTION OF THESE PROBLEMS OBVIOUSLY MUST
BE CONSISTENT WITH THE PROVISIONS AND INTENT OF THE ORDER. IN OUR VIEW,
THE CO-EMPLOYER DOCTRINE WHICH WOULD ARTIFICIALLY IMPOSE A SINGLE
EMPLOYMENT RELATIONSHIP ON DIVERSE EMPLOYING ENTITIES WITH DIFFERENT
MISSIONS, REGULATIONS AND ORGANIZATIONAL FRAMEWORKS, AND SHARING NO
COMMON CONTROL OR DIRECTION OVER THE SUBJECT EMPLOYEES WOULD SERIOUSLY
DISRUPT THE OPERATING CAPABILITIES OF THOSE AGENCIES AND, AS ALREADY
MENTIONED, WOULD CONFLICT WITH THE MEANING AND PURPOSES OF THE ORDER.
MOREOVER, THE ADMINISTRATIVE DIFFICULTIES OF PARTICULAR CONCERN TO THE
ASSISTANT SECRETARY MAY BE READILY RESOLVED BY ESTABLISHED ADJUDICATIVE
TECHNIQUES, SUCH AS CONSOLIDATED PROCEEDINGS, MULTI-PARTY STIPULATIONS,
EXPEDITED HEARINGS AND THE LIKE, AND BY PROMPT RESORT TO PROCEDURES
ALREADY PROVIDED FOR OR AVAILABLE UNDER THE ORDER. THEREFORE, NO
OVERRIDING EXIGENCY IS PRESENTED TO JUSTIFY THE CO-EMPLOYER DOCTRINE
HERE CONCEIVED AND APPLIED BY THE ASSISTANT SECRETARY.
ACCORDINGLY, WE HOLD THAT THE CO-EMPLOYER DOCTRINE, AS FASHIONED AND
APPLIED BY THE ASSISTANT SECRETARY IN THE CIRCUMSTANCES OF THIS CASE,
WAS IMPROPER AND MAY NOT BE RELIED UPON BY HIM IN HIS RECONSIDERATION
UPON REMAND OF THE INSTANT CASE.
ISSUE 3. CONFORMITY OF ASSISTANT SECRETARY'S DECISION TO
REQUIREMENTS OF SECTION 10(B) OF THE ORDER.
SECTION 10(B) OF THE ORDER PROVIDES IN RELEVANT PART AS FOLLOWS:
SEC. 10. EXCLUSIVE RECOGNITION.
(B) A UNIT MAY BE ESTABLISHED ON A PLANT OR INSTALLATION, CRAFT,
FUNCTIONAL, OR OTHER
BASIS, WHICH WILL ENSURE A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST AMONG THE EMPLOYEES
CONCERNED AND WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS.
IN HIS CONCLUSION THAT DSA VIOLATED SECTION 19(A)(5) AND (1) OF THE
ORDER IN THE PRESENT CASE, THE ASSISTANT SECRETARY RULED, IN SUBSTANCE,
THAT THE COMBINED UNIT OF THE 15 EMPLOYEES TRANSFERRED TO DSA AND THE
REMAINING APPROXIMATELY 1600 APGC EMPLOYEES CONTINUED TO BE APPROPRIATE
UNDER SECTION 10(B).
THE ASSISTANT SECRETARY REASONED IN THE ABOVE REGARD THAT, AFTER THE
REORGANIZATION AND ADMINISTRATIVE "TRANSFER-IN-PLACE," THE DSA EMPLOYEES
RETAINED THEIR SAME JOB DESCRIPTIONS AND CLASSIFICATIONS, CONTINUED TO
WORK IN THE SAME LOCATIONS, PERFORMED THE SAME DUTIES AND FUNCTIONS,
AND, WHILE COMMANDS DIFFERED, WORKED UNDER THE SAME IMMEDIATE
SUPERVISION, AS BEFORE THE REORGANIZATION. BASED THEREON, THE ASSISTANT
SECRETARY FOUND THAT THE DSA EMPLOYEES "CONTINUE(D) TO SHARE A COMMUNITY
OF INTEREST" WITH THE APGC UNIT EMPLOYEES AND IN EFFECT REMAINED IN THAT
UNIT. FURTHER, AFTER ADVERTING TO THE SUBSTANTIAL NUMBER OF
REPRESENTATION PETITIONS WHICH WERE FILED SEEKING TO SEPARATE EMPLOYEES
FROM THEIR HISTORICAL UNITS, THE ASSISTANT SECRETARY FOUND:
TO UPSET THESE UNITS, BASED SOLELY ON SUCH AN ADMINISTRATIVE
REORGANIZATION CLEARLY WOULD
NOT HAVE THE DESIRED EFFECT OF PROMOTING EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY
OPERATIONS.
THIS FINDING BY THE ASSISTANT SECRETARY AS TO EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS PLAINLY FALLS FAR SHORT OF THE
REQUIREMENTS OF SECTION 10(B) AS RECENTLY EXPLICATED BY THE COUNCIL IN
THE TULSA AFS CASE. /11/
TULSA AFS INVOLVED IN AGENCY REORGANIZATION, IN WHICH THE ACTIVITY,
TULSA AIRWAY FACILITIES SECTOR (TULSA AFS), WAS ENLARGED BY THE TRANSFER
OF VARIOUS FIELD OFFICES TO THE ACTIVITY'S JURISDICTION. THE ACTIVITY
THEREAFTER SOUGHT AN ELECTION IN A SECTORWIDE UNIT INCLUDING THE
EMPLOYEES IN TULSA AFS ALREADY REPRESENTED BY IAM AND THOSE NEWLY PLACED
UNDER THE ACTIVITY'S JURISDICTION AS A RESULT OF THE REORGANIZATION.
THE ASSISTANT SECRETARY DISMISSED THE ACTIVITY'S REPRESENTATION PETITION
BECAUSE, BASED ON A DETAILED CONSIDERATION OF EMPLOYMENT CONDITIONS
BEFORE AND AFTER THE REORGANIZATION, THE ASSISTANT SECRETARY FOUND THAT
THE EMPLOYEES IN THE EXISTING UNIT REPRESENTED BY IAM CONTINUED TO SHARE
A SEPARATE CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST. THE ASSISTANT
SECRETARY ALSO STATED:
NOTING THE ESTABLISHED BARGAINING HISTORY WITH RESPECT TO THE UNIT
REPRESENTED BY THE IAM,
THE FACT, STANDING ALONE, THAT AN ADDITIONAL UNIT OR UNITS
SUBSEQUENTLY MAY BE ESTABLISHED TO
COVER THOSE EMPLOYEES ADDED TO THE ACTIVITY'S JURISDICTION AS A
RESULT OF THE REORGANIZATION
WAS NOT CONSIDERED TO REQUIRE A FINDING THAT THE UNIT REPRESENTED BY
THE IAM NECESSARILY WILL
FAIL TO PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS.
THE COUNCIL, UPON APPEAL BY THE AGENCY, HELD THAT THE ASSISTANT
SECRETARY'S DECISION FAILED TO MEET THE REQUIREMENTS OF SECTION 10(B) OF
THE ORDER.
AS TO THE MEANING OF SECTION 10(B), THE COUNCIL STATED (AT P. 5 OF
ITS DECISION):
IT IS CLEAR THAT THE EXPRESS LANGUAGE OF SECTION 10(B) REQUIRES THAT
ANY PROPOSED UNIT OF
EXCLUSIVE RECOGNITION MUST SATISFY EACH OF THE THREE CRITERIA SET
FORTH THEREIN, AND THAT THE
ASSISTANT SECRETARY MUST AFFIRMATIVELY SO DETERMINE, BEFORE THAT UNIT
PROPERLY CAN BE FOUND TO
BE APPROPRIATE. THIS CONCLUSION IS AMPLY SUPPORTED BY THE PURPOSE OF
THE PROVISION, AS
EVIDENCED BY ITS "LEGISLATIVE HISTORY" . . . , ESPECIALLY WHEREIN THE
CRITERION OF COMMUNITY
OF INTEREST OF THE EMPLOYEES INVOLVED WAS EXPLICITLY BALANCED WITH
OTHER CONSIDERATIONS
IMPORTANT TO MANAGEMENT AND PROTECTION OF THE PUBLIC INTEREST IN THE
PROMULGATION OF
E.O. 11491 IN 1969, I.E., THAT UNITS FOUND APPROPRIATE MUST ALSO
PROMOTE EFFECTIVE DEALINGS
AND EFFICIENCY OF AGENCY OPERATIONS.
THE COUNCIL ALSO NOTED THE REPORT ACCOMPANYING E.O. 11838, WHICH
READS IN PART AS FOLLOWS: /12/
X. STATUS OF NEGOTIATED AGREEMENTS DURING REORGANIZATION.
MOREOVER, THE RESOLUTION OF REORGANIZATION-RELATED REPRESENTATION
PROBLEMS IS ALREADY
GOVERNED BY A POLICY REQUIREMENT IN SECTION 10(B) OF THE ORDER THAT
UNITS OF EXCLUSIVE
RECOGNITION MUST ENSURE A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST AMONG THE EMPLOYEES
INVOLVED AND MUST PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS. THIS POLICY
REQUIREMENT, IN THE COUNCIL'S VIEW, IS SUFFICIENTLY COMPREHENSIVE AND
FLEXIBLE TO ACHIEVE THE
DESIRABLE EQUITABLE BALANCE BETWEEN THE SOMETIMES DIVERGENT AND
CONFLICTING INTERESTS OF
AGENCIES, LABOR ORGANIZATIONS, AND EMPLOYEES INVOLVED IN ANY
REORGANIZATION. THIS POLICY MUST
BE APPLIED SO THAT CONTROLLING WEIGHT IS NOT GIVEN TO ANY ONE OF THE
CRITERIA; EQUAL WEIGHT
MUST BE GIVEN TO EACH CRITERION IN ANY REPRESENTATION CASE ARISING
OUT OF A REORGANIZATION
JUST AS IT IS IN ANY OTHER CASE INVOLVING A QUESTION AS TO THE
APPROPRIATENESS OF A UNIT. FOR
EXAMPLE, TO GIVE CONTROLLING WEIGHT TO A DESIRE, HOWEVER OTHERWISE
COMMENDABLE, OF MAINTAINING
THE STABILITY OF AN EXISTING UNIT WOULD NOT MEET THE POLICY
REQUIREMENTS IN SECTION 10(B)
. . .
THE COUNCIL CONCLUDED AS TO THE REQUIRED FINDINGS UNDER SECTION 10(B)
OF THE ORDER (AT PP. 6-7 OF DECISION):
THUS, THE ASSISTANT SECRETARY MUST NOT ONLY AFFIRMATIVELY DETERMINE
THAT A UNIT WILL ENSURE
A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST AMONG THE EMPLOYEES
CONCERNED AND WILL PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS, BUT MUST GIVE
EQUAL WEIGHT TO EACH OF
THE THREE CRITERIA BEFORE THE PARTICULAR UNIT CAN BE FOUND TO BE
APPROPRIATE. IN THIS CASE
. . . THE ASSISTANT SECRETARY FOUND THAT THE EMPLOYEES IN THE
EXISTING UNIT REPRESENTED BY THE
UNION CONTINUED TO SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST SEPARATE AND DISTINCT
FROM THOSE ASSIGNED TO THE ACTIVITY AS A RESULT OF THE REORGANIZATION
AND, THUS, CONCLUDED
THAT THE EXISTING UNIT CONTINUED TO BE AN APPROPRIATE ONE UNDER THE
ORDER. FURTHER, THE
ASSISTANT SECRETARY ATTRIBUTED LITTLE, IF ANY, WEIGHT TO THE CRITERIA
OF EFFECTIVE DEALINGS
AND EFFICIENCY OF AGENCY OPERATIONS . . . IT IS THEREFORE APPARENT
THAT THE ASSISTANT
SECRETARY DID NOT GIVE EQUAL WEIGHT TO THE CRITERIA OF EFFECTIVE
DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS, BUT, RATHER, GAVE PREDOMINANT WEIGHT TO THE
CRITERION OF COMMUNITY OF
INTEREST OF THE EMPLOYEES CONCERNED.
OBVIOUSLY, THE REQUIRED AFFIRMATIVE DETERMINATIONS AND ACCORDING OF
EQUAL WEIGHT TO EACH CRITERION UNDER SECTION 10(B), AS DISCUSSED IN THE
TULSA AFS CASE, ARE APPOSITE WHETHER THE APPROPRIATE UNIT QUESTION IS
RAISED, AS IN THAT CASE, IN A REPRESENTATION PROCEEDING OR, AS HERE, IN
AN UNFAIR LABOR PRACTICE PROCEEDING.
AS ALREADY INDICATED, THE ASSISTANT SECRETARY, IN OUR OPINION, FAILED
TO MEET THOSE REQUIREMENTS IN THE PRESENT CASE. HERE, THE ASSISTANT
SECRETARY FOUND AFFIRMATIVELY, WITH DETAILED SUPPORTING REASONS, THAT
THE EMPLOYEES TRANSFERRED TO DSA AND THE REMAINING ARMY EMPLOYEES IN THE
APGC UNIT CONTINUED TO SHARE A COMMUNITY OF INTEREST. HOWEVER, AS TO
THE REMAINING CRITERIA IN SECTION 10(B), THE ASSISTANT SECRETARY LIMITED
HIS DETERMINATION ESSENTIALLY TO A STATEMENT THAT UPSETTING THE VARIOUS
HISTORICAL BARGAINING UNITS IN DOD BY REASON OF THE SUBJECT
REORGANIZATION WOULD NOT HAVE THE EFFECT OF PROMOTING EFFECTIVE DEALINGS
AND EFFICIENCY OF AGENCY OPERATIONS. THUS, THE ASSISTANT SECRETARY
FAILED TO MAKE THE REQUIRED DETERMINATIONS THAT THE APGC UNIT, INCLUDING
THE EMPLOYEES TRANSFERRED TO DSA, WOULD PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS. MOREOVER, THE ASSISTANT SECRETARY,
INSOFAR AS THIS PARTICULAR UNIT IS CONCERNED, MANIFESTLY DID NOT GIVE
EQUAL WEIGHT TO THE CRITERIA OF EFFECTIVE DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS. INSTEAD, HE GAVE PREDOMINANT AND ALMOST EXCLUSIVE
WEIGHT TO THE CRITERION OF THE COMMUNITY OF INTEREST OF THE EMPLOYEES
INVOLVED. /13/
ACCORDINGLY, IF UPON REMAND THE QUESTION OF APPROPRIATE UNIT IS
REACHED BY THE ASSISTANT SECRETARY, HE IS DIRECTED TO MAKE THE REQUIRED
DETERMINATIONS AND TO ACCORD THE NECESSARY EQUAL WEIGHT TO EACH
CRITERION, AS COMPELLED BY SECTION 10(B) OF THE ORDER. /14/
ISSUE 4. IMPACT OF "SUCCESSORSHIP" CRITERIA.
AS WE OBSERVED IN OUR REJECTION OF THE ASSISTANT SECRETARY'S
"CO-EMPLOYER" DOCTRINE UNDER ISSUE 2, SUPRA, THE ADMINISTRATIVE
DIFFICULTIES OF PARTICULAR CONCERN TO THE ASSISTANT SECRETARY MAY BE
READILY RESOLVED IN PART BY PROMPT RESORT TO PROCEDURES ALREADY PROVIDED
FOR OR AVAILABLE UNDER THE ORDER. AMONG OTHERS, THESE PROCEDURES OBTAIN
FOLLOWING A REORGANIZATION, WHEN AN AGENCY OR EMPLOYING ENTITY BECOMES
THE "SUCCESSOR" TO ANOTHER AGENCY OR EMPLOYING ENTITY WHICH HAD GRANTED
EXCLUSIVE RECOGNITION TO A LABOR ORGANIZATION IN AN APPROPRIATE UNIT
UNDER SECTION 10(A) OF THE ORDER. /15/
IN OUR VIEW, AN AGENCY OR EMPLOYING ENTITY IS A "SUCCESSOR," I.E.,
STANDS IN THE STEAD, OF ANOTHER AGENCY OR EMPLOYING ENTITY FOR PURPOSES
OF ACCORDING EXCLUSIVE RECOGNITION UNDER 10(A) WHEN: (1) THE RECOGNIZED
UNIT IS TRANSFERRED SUBSTANTIALLY INTACT TO THE GAINING EMPLOYER; (2)
THE APPROPRIATENESS OF THE UNIT REMAINS UNIMPAIRED IN THE GAINING
EMPLOYER; AND (3) A QUESTION CONCERNING REPRESENTATION IS NOT TIMELY
RAISED AS TO THE REPRESENTATIVE STATUS OF THE INCUMBENT LABOR
ORGANIZATION.
STATED OTHERWISE, THE GAINING EMPLOYER (WHETHER BY INTER OR INTRA
AGENCY TRANSFER) TAKES THE PLACE OF THE LOSING AGENCY OR EMPLOYING
ENTITY AS A "SUCCESSOR" UNDER 10(A) WHEN THE SUBSTANTIVE ELEMENTS OF
RECOGNITION CONTINUE WITHOUT MATERIAL CHANGE AFTER THE SUBJECT
REORGANIZATION. IN THESE CIRCUMSTANCES, THERE IS NO REQUIREMENT THAT A
NEW SECRET BALLOT ELECTION BE CONDUCTED, SINCE THE ELECTION REQUIREMENT
IN 10(A) WAS ALREADY SATISFIED AT THE TIME THE PREVIOUS RECOGNITION WAS
ACCORDED. /17/ IF THESE CRITERIA OF "SUCCESSORSHIP" ARE FULLY MET, THE
GAINING EMPLOYER BEARS THE SAME OBLIGATION TO GRANT RECOGNITION TO THE
INCUMBENT UNION AS THAT BORNE BY THE LOSING ENTITY, UNDER SECTION 10(A)
OF THE ORDER.
THE EXISTENCE OF A "SUCCESSOR" RELATIONSHIP MAY, UNDER RULES WHICH
MAY BE ESTABLISHED BY THE ASSISTANT SECRETARY, /18/ BE: (1) VOLUNTARILY
ACKNOWLEDGED BY THE AGENCY; OR (2) PROPERLY DETERMINED AND SO CERTIFIED
BY THE ASSISTANT SECRETARY, EITHER IN A REPRESENTATION PROCEEDING OR, IF
SUCH PROCEEDING IS NOT INITIATED, IN THE CONTEXT OF AN UNFAIR LABOR
PRACTICE COMPLAINT. HOWEVER, AS DISCUSSED UNDER ISSUE 1, SUPRA, THE
ASSISTANT SECRETARY'S RULES MUST ENABLE THE GAINING EMPLOYER TO INITIATE
A REPRESENTATION PROCEEDING IN ORDER TO RESOLVE ITS GOOD FAITH DOUBTS AS
TO THE REPRESENTATIVE STATUS OF THE INCUMBENT, WITHOUT INCURRING THE
RISK OF AN UNFAIR LABOR PRACTICE FINDING. MOREOVER, IN DECIDING
"SUCCESSORSHIP," THE ASSISTANT SECRETARY MUST CONTINUE TO APPLY THE
PERTINENT PROVISIONS OF THE ORDER, SUCH AS THE CRITERIA IN 10(B) FOR
DETERMINING THE APPROPRIATE UNIT, IN THE MANNER CONSIDERED AT LENGTH
UNDER ISSUE 3, SUPRA.
TO REPEAT, THE GAINING EMPLOYER AS A "SUCCESSOR" ASSUMES THE SAME
DUTY AS THE LOSING EMPLOYER TO GRANT RECOGNITION TO THE INCUMBENT LABOR
ORGANIZATION UNDER SECTION 10(A) OF THE ORDER. THIS DOES NOT MEAN THAT
THE "SUCCESSOR" IS REQUIRED TO ADOPT AND BE BOUND BY ANY AGREEMENT WHICH
MAY HAVE BEEN ENTERED INTO BETWEEN THE LOSING EMPLOYER AND THE INCUMBENT
UNION. TO HOLD OTHERWISE WOULD, AS IN INSTANCES SUCH AS HERE INVOLVED,
IMPOSE UPON THE GAINING EMPLOYER AN AGREEMENT ENTERED INTO WITH A
DIFFERENT EMPLOYING ENTITY HAVING DIFFERENT OBJECTIVES AND DIFFERENT
ORGANIZATIONAL AND REGULATORY POLICIES AND WOULD FREQUENTLY, AS HERE,
DISRUPT THE OPERATING CAPABILITIES OF THE GAINING EMPLOYER AND THE
ACCOMPLISHMENT OF ITS ASSIGNED MISSION. MOREOVER, TO REQUIRE
MAINTENANCE OF THE AGREEMENT ENTERED INTO WITH THE PREDECESSOR WOULD
SUBJECT THE LABOR ORGANIZATION AND EMPLOYEES TO TERMS AND CONDITIONS OF
EMPLOYMENT NEGOTIATED UNDER A DIFFERENT WORK SITUATION WITH, FOR
EXAMPLE, A DIFFERENT AND POSSIBLY MORE RESTRICTIVE REGULATORY FRAMEWORK.
CONSEQUENTLY, A REQUIRED ADOPTION OF THE EARLIER AGREEMENT WOULD
PLAINLY CONFLICT WITH THE INTERESTS OF THE AGENCY, THE LABOR
ORGANIZATION AND THE EMPLOYEES, AND WITH THE PARAMOUNT NEED TO PROTECT
THE PUBLIC INTEREST AND WOULD BE CONTRARY TO THE UNDERLYING PURPOSES OF
THE ORDER.
WHILE THE GAINING EMPLOYER WHICH IS ESTABLISHED AS A "SUCCESSOR" IS
THUS NOT REQUIRED TO ADOPT AND BE BOUND BY THE AGREEMENT OF ITS
PREDECESSOR, IT IS NEVERTHELESS ENJOINED UNDER THE ORDER TO ADHERE SO
FAR AS PRACTICABLE TO THE PERSONNEL POLICIES AND PRACTICES AND MATTERS
AFFECTING WORKING CONDITIONS, INCLUDING DUES WITHHOLDING, PROVIDED IN
THE EARLIER AGREEMENT, UNTIL THE "SUCCESSOR" HAS FULFILLED ITS
BARGAINING OBLIGATION UNDER THE ORDER WITH THE INCUMBENT UNION.
MOREOVER, UNTIL THE QUESTION OF "SUCCESSORSHIP" IS RESOLVED OR UNTIL ANY
OTHER ISSUES RAISED BY THE REORGANIZATION ARE DECIDED (E.G., QUESTIONS
CONCERNING REPRESENTATION, UNIT QUESTIONS, OR THE LIKE), THE GAINING
EMPLOYER IS LIKEWISE ENJOINED, IN ORDER TO ASSURE STABILITY OF LABOR
RELATIONS AND THE WELL-BEING OF ITS EMPLOYEES, TO MAINTAIN RECOGNITION
AND TO ADHERE TO THE TERMS OF THE PRIOR AGREEMENT, INCLUDING DUES
WITHHOLDING, TO THE MAXIMUM EXTENT POSSIBLE. /19/ AS STATED IN THIS
REGARD IN THE REPORT ACCOMPANYING E.O. 11838 CONCERNING THE STATUS OF
NEGOTIATED AGREEMENTS PENDING PROCEEDINGS ON ISSUES RAISED BY
REORGANIZATIONS: /20/
. . . (E)XISTING RECOGNITIONS, AGREEMENTS, AND DUES WITHHOLDING
ARRANGEMENTS SHOULD BE
HONORED TO THE MAXIMUM EXTENT POSSIBLE CONSISTENT WITH THE RIGHTS OF
THE PARTIES INVOLVED
PENDING FINAL DECISIONS ON ISSUES RAISED BY REORGANIZATIONS . . .
ACCORDINGLY, IN HIS DISPOSITION OF THE INSTANT CASE UPON REMAND, THE
ASSISTANT SECRETARY IS DIRECTED TO APPLY THE FOREGOING PRINCIPLES TO
RELEVANT ISSUES WHICH MAY BE REACHED WITH RESPECT TO THE SUBJECT
REORGANIZATION.
ISSUE 5. EFFECT OF CIVIL SERVICE COMMISSION REGULATIONS CONCERNING
DUES WITHHOLDING.
SECTION 21 OF THE ORDER PROVIDES WITH RESPECT TO DUES WITHHOLDING AS
FOLLOWS:
SEC. 21. ALLOTMENT OF DUES. (A) WHEN A LABOR ORGANIZATION HOLDS
EXCLUSIVE RECOGNITION,
AND THE AGENCY AND THE ORGANIZATION AGREE IN WRITING TO THIS COURSE
OF ACTION, AN AGENCY MAY
DEDUCT THE REGULAR AND PERIOD DUES OF THE ORGANIZATION FROM THE PAY
OF MEMBERS OF THE
ORGANIZATION IN THE UNIT OF RECOGNITION WHO MAKE A VOLUNTARY
ALLOTMENT FOR THAT PURPOSE. SUCH
AN ALLOTMENT IS SUBJECT TO THE REGULATIONS OF THE CIVIL SERVICE
COMMISSION, WHICH SHALL
INCLUDE PROVISION FOR THE EMPLOYEE TO REVOKE HIS AUTHORIZATION AT
STATED SIX-MONTH
INTERVALS. SUCH AN ALLOTMENT TERMINATES WHEN--
(1) THE DUES WITHHOLDING AGREEMENT BETWEEN THE AGENCY AND THE LABOR
ORGANIZATION IS
TERMINATED OR CEASES TO BE APPLICABLE TO THE EMPLOYEE; OR
(2) THE EMPLOYEE HAS BEEN SUSPENDED OR EXPELLED FROM THE LABOR
ORGANIZATION.
ON FEBRUARY 15, 1972, THE CIVIL SERVICE COMMISSION (CSC) ISSUED
IMPLEMENTING REGULATIONS (5 CFR 550.301, ET SEQ.), WHICH READ IN
PERTINENT PART AS FOLLOWS:
SEC. 550.322. LIMITATION AND DISCONTINUANCE OF ALLOTMENT.
(C) EXCEPT AS PROVIDED IN PARAGRAPH (D) OF THIS SECTION, AN AGENCY
SHALL DISCONTINUE PAYING
AN ALLOTMENT WHEN THE ALLOTTER . . . TRANSFERS BETWEEN AGENCIES,
MOVES OR IS REASSIGNED
. . . WITHIN THE AGENCY OUTSIDE THE UNIT FOR WHICH THE LABOR
ORGANIZATION HAS BEEN ACCORDED
EXCLUSIVE RECOGNITION; . . . OR WHEN THE DUES WITHHOLDING AGREEMENT
BETWEEN THE AGENCY AND THE
LABOR ORGANIZATION IS TERMINATED, SUSPENDED, OR CEASES TO BE
APPLICABLE TO THE ALLOTTER.
(D) AN AGENCY MAY PERMIT AN EMPLOYEE, TRANSFERRING IN FROM ANOTHER
AGENCY, OR TRANSFERRING
WITHIN THE SAME AGENCY, TO CONTINUE ON A TEMPORARY BASIS TO MAKE AN
ALLOTMENT FOR DUES TO A
LABOR ORGANIZATION UNDER THE FOLLOWING CONDITIONS:
(1) THE TRANSFER OF THE EMPLOYEE IS IN CONNECTION WITH A TRANSFER OF
FUNCTION OR
REORGANIZATION; AND
(2) THE EMPLOYEE WAS IN A UNIT OF RECOGNITION, WHICH UNIT WAS
TRANSFERRED IN WHOLE OR PART
TO ANOTHER AGENCY, OR DIFFERENT ORGANIZATIONAL GROUP WITHIN THE SAME
AGENCY.
(3) A SUBSTANTIAL QUESTION OF SUCCESSORSHIP EXISTS, THAT IS, A
QUESTION AS TO WHETHER THE
UNION WHICH HELD EXCLUSIVE RECOGNITION FOR THE UNIT IS ELIGIBLE TO
RETAIN THE RECOGNITION
PREVIOUSLY GRANTED TO IT BY THE LOSING AGENCY; AND
(4) THE CONTINUATION OF DUES ALLOTMENT IS ON A TEMPORARY BASIS UNTIL
SUCH TIME AS THE
RECOGNITION STATUS OF THE UNIT IS CLARIFIED.
THE AGREEMENT BETWEEN IAM AND APGC IN THE PRESENT CASE PROVIDED FOR
DUES WITHHOLDING WHEN AUTHORIZED BY EMPLOYEES IN THE APGC UNIT. THE
ASSISTANT SECRETARY, AS ALREADY MENTIONED, FOUND THAT DSA VIOLATED
SECTION 19(A)(5) AND (1) OF THE ORDER BY REFUSING TO MAINTAIN THIS
AGREEMENT, AND THAT DSA ADDITIONALLY VIOLATED 19(A)(1) BY THREATENING TO
TERMINATE THE DUES WITHHOLDING AUTHORIZED UNDER THIS AGREEMENT 6 MONTHS
AFTER THE 15 UNIT EMPLOYEES WERE TRANSFERRED TO DSA, IF NO
REPRESENTATION PETITION WAS FILED. SINCE THESE FINDINGS AS TO THE
ILLEGALITY OF DSA'S CONDUCT RELATING TO THE TERMINATION OF DUES
WITHHOLDING WERE PREDICATED ON THE CONCLUSION THAT DSA WAS BOUND BY THE
IAM-APGC AGREEMENT, HE DID NOT REACH THE QUESTION AS TO WHETHER DSA'S
CONDUCT WAS CONSISTENT WITH THE ABOVE-QUOTED CSC REGULATIONS, AS
REQUIRED UNDER SECTION 21 OF THE ORDER.
WE HAVE PREVIOUSLY REJECTED THE CO-EMPLOYER DOCTRINE UPON WHICH THE
ASSISTANT SECRETARY BASED DSA'S LIABILITY UNDER THE AGREEMENT; AND, FOR
REASONS INDICATED UNDER ISSUE 4, SUPRA, EVEN IF DSA WERE A "SUCCESSOR"
TO APGC WITH RESPECT TO THE TRANSFERRED EMPLOYEES, DSA WOULD NOT BE
BOUND BY THE APGC AGREEMENT. ACCORDINGLY, WE TURN TO THE QUESTION OF
WHETHER DSA'S CONDUCT CONFORMED WITH THE APPLICABLE CSC REGULATIONS.
THE REGULATIONS ISSUED BY CSC, SANCTIONING THE TEMPORARY EXTENSION OF
DUES WITHHOLDING ARRANGEMENTS FOLLOWING AN AGENCY REORGANIZATION, ARE
PLAINLY CONSISTENT WITH AND IMPLEMENTIVE OF THE LANGUAGE AND PURPOSES OF
THE ORDER. /21/
FURTHER, WITHOUT PASSING UPON WHETHER SECTION 550.322(D) OF THE CSC
REGULATIONS IS MANDATORY IN NATURE, WE FIND THAT DSA COMPLETELY
SATISFIED THE POLICIES SET FORTH HEREIN. MORE FULLY IN THIS REGARD, THE
STIPULATED RECORD SHOWS THAT DSA, BY LETTER OF MARCH 21, 1973, REQUESTED
AN INTERPRETATION BY CSC OF SECTION 550.322(D), QUESTIONING PARTICULARLY
WHETHER IT WOULD BE CONSISTENT WITH THAT REGULATION TO EXTEND DUES
ALLOTMENTS OF EMPLOYEES TRANSFERRED DURING THIS REORGANIZATION "FOR SIX
MONTHS PLUS WHATEVER ADDITIONAL TIME IS REQUIRED TO PROCESS ANY PETITION
FILED DURING THAT PERIOD THROUGH THE LABOR DEPARTMENT." ON MARCH 23,
1973, CSC PROVIDED SUCH INTERPRETATION, WHICH AMONG OTHER THINGS, SET
FORTH THE UNDERLYING INTENT OF THE REGULATIONS /22/ AND ANSWERED IN THE
AFFIRMATIVE THE QUESTION AS TO THE CONSISTENCY OF THE CONTINUED DUES
WITHHOLDING WITH THE SUBJECT REGULATIONS.
IN ACCORDANCE WITH ESTABLISHED COUNCIL PRACTICE, WE HOLD THAT THE
INTERPRETATION BY CSC OF ITS OWN REGULATIONS IS BINDING UPON THE
COUNCIL. /23/ AND AS IT IS CLEAR THAT DSA, IN ITS CONDUCT WITH RESPECT
TO TERMINATING DUES WITHHOLDING IN THE INSTANT CASE, STRICTLY ADHERED TO
CSC'S INTERPRETATION OF SECTION 550.322(D), WE FIND THAT SUCH CONDUCT
COMPLIED WITH CSC REGULATIONS AS REQUIRED UNDER SECTION 21 OF THE ORDER
AND WAS NOT THEREBY VIOLATIVE OF SECTION 19(A)(5) OR SECTION 19(A)(1) OF
THE ORDER.
ISSUE 6. PROPRIETY OF EXTENDING DECISION AND ORDER TO "SIMILARLY
SITUATED" LABOR ORGANIZATIONS.
AS PREVIOUSLY STATED, THE ASSISTANT SECRETARY FOUND THAT, IN VIEW OF
THE SCOPE OF THE SUBJECT REORGANIZATION, A BROAD CEASE AND DESIST ORDER
WAS WARRANTED IN THE INSTANT CASE. THUS, IN ADDITION TO ORDERING DSA TO
CEASE AND DESIST FROM REFUSING TO RECOGNIZE IAM AND REFUSING TO HONOR
THE IAM-APGC AGREEMENT, THE ASSISTANT SECRETARY ALSO DIRECTED DSA TO
CEASE AND DESIST FROM REFUSING TO RECOGNIZE "SIMILARLY SITUATED LABOR
ORGANIZATIONS," AND REFUSING TO HONOR EXISTING NEGOTIATED AGREEMENTS OF
SUCH ORGANIZATIONS AT OTHER DPDO'S.
SECTION 6(B) OF THE ORDER EMPOWERS THE ASSISTANT SECRETARY TO REQUIRE
AN AGENCY OR A LABOR ORGANIZATION TO CEASE AND DESIST FROM VIOLATIONS OF
THE ORDER AND TO REQUIRE SUCH AFFIRMATIVE ACTION TO BE TAKEN AS HE DEEMS
APPROPRIATE TO EFFECTUATE THE POLICIES OF THE ORDER. WHILE WE REAFFIRM
THE ASSISTANT SECRETARY'S AUTHORITY TO FASHION APPROPRIATE REMEDIES, WE
ALSO REAFFIRM THE COUNCIL'S AUTHORITY TO REVIEW SUCH REMEDIAL ORDERS
UNDER SECTION 4(C) OF THE ORDER. /24/ BASED UPON SUCH REVIEW HEREIN,
WHILE WE DO NOT RULE THAT BROAD CEASE AND DESIST ORDERS MAY NOT BE
APPROPRIATE IN ANY INSTANCE, WE FIND THAT SUCH BROAD REMEDIAL ACTION
WOULD NOT EFFECTUATE THE PURPOSES OF THE ORDER IN CIRCUMSTANCES SUCH AS
HERE PRESENTED.
FEW PROBLEM AREAS IN FEDERAL LABOR-MANAGEMENT RELATIONS MAY INVOLVE A
GREATER VARIETY OF FACTS AND CIRCUMSTANCES OR GREATER POTENTIAL FOR
DIFFERENT RESULTS THAN ISSUES ARISING OUT OF AGENCY REORGANIZATIONS. AS
POINTED OUT IN THE REPORT ACCOMPANYING E.O. 11838 CONCERNING THE STATUS
OF NEGOTIATED AGREEMENTS DURING REORGANIZATIONS: /25/
EACH REORGANIZATION PRESENTS DISTINCT LABOR-MANAGEMENT RELATIONS
PROBLEMS WHEN IT AFFECTS
EMPLOYEES IN UNITS OF EXCLUSIVE RECOGNITION AND THE PROBLEMS ARE
COMPOUNDED WHEN THE AFFECTED
UNITS ARE COVERED BY NEGOTIATED AGREEMENTS OR DUES WITHHOLDING
ARRANGEMENTS. REORGANIZATION
SITUATIONS CAN GIVE RISE TO A NUMBER OF APPROPRIATE UNIT, RECOGNITION
AND AGREEMENT STATUS
QUESTIONS. ADDITIONALLY, THOSE QUESTIONS CAN INVOLVE MYRIAD
COMBINATIONS OF VARIABLE FACTORS.
THE COUNCIL HAS CONCLUDED THAT IN VIEW OF THE WIDE VARIETY OF
REPRESENTATION QUESTIONS THAT
CAN EMERGE FROM THE DIVERSE FACTUAL CONFIGURATIONS OF THE AGENCY
REORGANIZATION SITUATIONS
THAT HAVE BEEN EXPERIENCED, OR THAT CAN BE ENVISIONED, A CONTEXTUAL
APPROACH TO RESOLUTION OF
THOSE PROBLEMS IS REQUIRED. THE NEED TO ENSURE AN EQUITABLE
BALANCING OF THE LEGITIMATE
INTERESTS OF THE AGENCIES, LABOR ORGANIZATIONS AND EMPLOYEES INVOLVED
IN REORGANIZATIONS, AS
WELL AS THE PARAMOUNT NEED TO ENSURE THE PROTECTION OF THE PUBLIC
INTEREST IN ALL INSTANCES,
COUNSELED THIS COURSE OF ACTION.
ACCORDINGLY, THE REPORT RECOMMENDED (AND THE PRESIDENT ADOPTED THIS
RECOMMENDATION) THAT:
EACH REORGANIZATION-RELATED PROBLEM SHOULD BE DEALT WITH ON A
CASE-BY-CASE BASIS WITHIN THE
PARTICULAR FACTUAL CONTEXT IN WHICH IT HAS ARISEN. ANY POLICIES,
PRINCIPLES OR STANDARDS
DEEMED NECESSARY IN THIS AREA OF THE PROGRAM SHOULD BE FORMULATED AND
DECLARED IN THE CONTEXT
OF A CASE DECISION ON THE BASIS OF THE POLICIES CONTAINED IN THE
EXISTING PROVISIONS OF THE
ORDER RATHER THAN THROUGH AMENDMENT OF THE ORDER.
IN THE INSTANT CASE, THE ASSISTANT SECRETARY WAS CALLED UPON TO
DETERMINE THE RESPECTIVE RIGHTS AND OBLIGATIONS OF IAM AND DSA WITH
RESPECT TO DPDO EMPLOYEES AT ABERDEEN PROVING GROUND WHO WERE
TRANSFERRED TO DSA FROM THE APGC UNIT. THE RESOLUTION OF THESE MATTERS,
AS DISCUSSED HEREINBEFORE, REQUIRES DETERMINATIONS AS TO UNIT
APPROPRIATENESS, SUBSTANTIALITY OF TRANSFERS, EXISTENCE OF QUESTIONS
CONCERNING REPRESENTATION, BONA FIDES OF THE AGENCY, AND THE LIKE. NO
OTHER LABOR ORGANIZATION WAS A PARTY TO THE PROCEEDING AND THE CRITICAL
CIRCUMSTANCES NECESSARY TO THE DISPOSITION OF THESE QUESTIONS IN THE
CONTEXT OF OTHER UNITS AND OTHER COMPONENTS WERE NOT STIPULATED OR
DEVELOPED IN THE RECORD.
THUS, A BROAD CEASE AND DESIST ORDER NOT ONLY CONFLICTS WITH THE
CASE-BY-CASE REQUIREMENT IN THE ORDER FOR RESOLVING
REORGANIZATION-RELATED PROBLEMS, BUT ALSO THE ESSENTIAL FACTS UPON WHICH
TO PREDICATE THE NECESSARY FINDINGS AND DETERMINATIONS BY THE ASSISTANT
SECRETARY, FOR PURPOSES OF DECIDING COMPLIANCE WITH HIS BROAD ORDER, ARE
NOT EVEN PRESENTLY AVAILABLE. AS A CONSEQUENCE, SUBSTANTIAL
EXPENDITURES OF TIME AND FUNDS WOULD BE REQUIRED BY THE LABOR
ORGANIZATIONS, DSA AND THE ASSISTANT SECRETARY TO CONDUCT EXTENSIVE
PROCEEDINGS RELATING TO COMPLIANCE. MOREOVER, ADDITIONAL EXPENDITURES
WOULD BE REQUIRED IN THOSE INSTANCES WHERE THE LABOR ORGANIZATIONS WERE
FOUND NOT TO BE "SIMILARLY SITUATED" AND WHERE SEPARATE REPRESENTATION
OR UNFAIR LABOR PROCEEDINGS WERE THEREAFTER INITIATED.
IN SUMMARY, WHILE WE COMMEND THE APPARENT OBJECTIVE OF THE ASSISTANT
SECRETARY TO REDUCE THE MULTIPLICITY OF PROCEEDINGS DERIVING FROM THE
SUBJECT REORGANIZATION, WE REPEAT, AS STATED IN OUR DISCUSSION OF ISSUE
2, SUPRA, THAT THE RESOLUTION OF SUCH PROBLEMS MUST BE CONSISTENT WITH
THE PURPOSES OF THE ORDER AND SUCH PROBLEMS MAY BE AVERTED BY
ESTABLISHED ADJUDICATIVE TECHNIQUES. HERE, THE BROAD CEASE AND DESIST
ORDER OF THE ASSISTANT SECRETARY WOULD BE CONTRARY TO THE CONTEXTUAL
APPROACH TO REORGANIZATION SITUATIONS REQUIRED BY THE ORDER. MOREOVER,
SUCH A BROAD ORDER WOULD BE COUNTER-PRODUCTIVE AND INAPPROPRIATE, SINCE
IT WOULD POTENTIALLY ENHANCE THE MULTIPLICITY OF PROCEEDINGS AND WOULD
IMPOSE UNNECESSARY EXPENDITURES OF TIME AND MONEY UPON LABOR
ORGANIZATIONS AND AGENCIES, CONTRARY TO THE PUBLIC INTEREST.
ACCORDINGLY, WE FIND THAT THE ASSISTANT SECRETARY IMPROPERLY EXTENDED
HIS DECISION AND ORDER TO "SIMILARLY SITUATED LABOR ORGANIZATIONS" AND
WE SET ASIDE HIS DECISION AND ORDER IN THAT RESPECT.
FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2411.18(B) OF THE
COUNCIL'S RULES AND REGULATIONS, WE SET ASIDE THE ASSISTANT SECRETARY'S
DECISION AND ORDER AND REMAND THE CASE TO HIM FOR APPROPRIATE ACTION IN
A MANNER CONSISTENT WITH OUR DECISION HEREIN.
BY THE COUNCIL.
ISSUED: DECEMBER 9, 1975
/1/ SECTION 19(A)(1) AND (5) OF THE ORDER PROVIDES AS FOLLOWS:
SEC. 19. UNFAIR LABOR PRACTICES. (A) AGENCY MANAGEMENT SHALL NOT--
(1) INTERFERE WITH, RESTRAIN, OR COERCE AN EMPLOYEE IN THE EXERCISE
OF THE RIGHTS ASSURED
BY THIS ORDER;
(5) REFUSE TO ACCORD APPROPRIATE RECOGNITION TO A LABOR ORGANIZATION
QUALIFIED FOR SUCH
RECOGNITION . . .
/2/ HEADQUARTERS, UNITED STATES ARMY AVIATION SYSTEMS COMMAND, A/SLMR
NO. 168, FLRC NO. 72A-30 (JULY 25, 1973), REPORT NO. 42.
/3/ THE ASSISTANT SECRETARY ALSO FOUND THAT "(T)O UPSET THESE
EXISTING UNITS BASED SOLELY ON SUCH AN ADMINISTRATIVE REORGANIZATION
CLEARLY WOULD NOT HAVE THE DESIRED EFFECT OF PROMOTING EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS."
/4/ THE COUNCIL, IN GRANTING THE STAY, ADDED THAT: "THIS IS NOT TO
BE INTERPRETED AS PERMITTING THE AGENCY TO CEASE GIVING EFFECT TO VALID
DUES WITHHOLDING AGREEMENTS AS THEY APPLY TO AFFECTED EMPLOYEES PRIOR TO
THE ISSUANCE OF A FINAL DECISION ON THE REQUEST FOR REVIEW."
/5/ PURSUANT TO SECTION 2411.49 OF THE COUNCIL'S RULES, THE REQUEST
BY AFGE IS DENIED, BECAUSE THE POSITIONS OF THE PARTICIPANTS IN THIS
CASE ARE ADEQUATELY REFLECTED IN THE ENTIRE RECORD NOW BEFORE THE
COUNCIL.
/6/ THE PETITION FILED BY ARMY WAS A "CLARIFICATION OF UNIT" PETITION
WHICH THE ASSISTANT SECRETARY LATER FOUND IMPROPER, BUT WHICH HE TREATED
FOR PURPOSES OF DECISION AS A "REPRESENTATION (AGENCY)" PETITION.
/7/ SECTION 202.2(B)(1) OF THE ASSISTANT SECRETARY'S REGULATIONS, AT
THE TIME HERE INVOLVED, READS AS FOLLOWS:
(B) PETITION FOR AN ELECTION TO DETERMINE IF A LABOR ORGANIZATION
SHOULD CEASE TO BE THE
EXCLUSIVE REPRESENTATIVE.
(1) A PETITION BY AN AGENCY SHALL CONTAIN . . . A STATEMENT THAT THE
AGENCY OR ACTIVITY HAS
A GOOD FAITH DOUBT THAT THE CURRENTLY RECOGNIZED OR CERTIFIED LABOR
ORGANIZATION REPRESENTS A
MAJORITY OF THE EMPLOYEES IN AN APPROPRIATE UNIT . . .
/8/ THE COUNCIL'S DIRECTION IN AVSCOM AS TO FUTURE CORRECTIVE ACTION
TO BE TAKEN BY THE ASSISTANT SECRETARY DID NOT MEAN THAT THE
REQUIREMENTS CONCERNING THE AVAILABILITY OF PROCEDURES TO AVERT AN
UNFAIR LABOR PRACTICE FINDING, WHICH DERIVED FROM THE ORDER ITSELF, WERE
ONLY PROSPECTIVE IN NATURE.
/9/ ASSUMING THE REQUIREMENTS DETAILED IN AVSCOM WERE SATISFIED, DSA
WOULD, OF COURSE, BE DEEMED TO HAVE ACCEPTED THE RISK OF AN UNFAIR LABOR
PRACTICE FINDING BY FAILING TO FILE A REPRESENTATION PETITION, AND THE
LEGALITY OF ITS CONDUCT MUST THEN BE ASSESSED UNDER THE PRINCIPLES
DISCUSSED HEREINAFTER.
/10/ CF. IAM LOCAL LODGE 2424 AND ABERDEEN PROVING GROUND, ABERDEEN,
MD., FLRC NO. 70A-9 (MARCH 9, 1971), REPORT NO. 5.
/11/ DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION,
SOUTHWEST REGION, TULSA AIRWAY FACILITIES SECTOR, A/SLMR NO. 364, FLRC
NO. 74A-28 (MAY 9, 1975), REPORT NO. 69.
/12/ LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1975), AT P.
51.
/13/ FOR EXAMPLE, THE ASSISTANT SECRETARY DID NOT EVEN CONSIDER THE
IMPACT ON "EFFICIENCY OF AGENCY OPERATIONS," OF A COMBINED UNIT OF
EMPLOYEES OF DIFFERENT COMPONENTS HAVING DIFFERENT MISSIONS,
REGULATIONS, AND ORGANIZATIONS. NOR DID HE CONSIDER SUCH IMPACT ON
"EFFECTIVE DEALINGS," EXCEPT IN A LATER FOOTNOTE WHEN HE IN EFFECT
SIMPLY CHARACTERIZED THIS PROBLEM AS "THE RESPONSIBILITY OF MANAGEMENT"
TO RESOLVE.
/14/ THE INSTANT CASE IS CLEARLY DISTINGUISHABLE FROM NATIONAL
WEATHER SERVICE, A/FLMR NO. 331, FLRC NO. 74A-16 (JULY 21, 1975), REPORT
NO. 77, IN WHICH THE COUNCIL UPHELD THE UNIT FINDINGS OF THE ASSISTANT
SECRETARY ALTHOUGH SUCH FINDINGS WERE NOT COUCHED IN THE PRECISE
LANGUAGE OF THE ORDER. IN THAT CASE, UNLIKE HERE, THERE WAS NO
COUNTERVAILING EVIDENCE THAT THE UNITS WOULD NOT PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. MOREOVER, THE SUBSTANCE
OF THE ASSISTANT SECRETARY'S DECISION IN THAT CASE REFLECTED AFFIRMATIVE
DETERMINATIONS AND THE ACCORDING OF EQUAL WEIGHT REQUIRED UNDER 10(B).
/15/ SECTION 10(A) PROVIDES:
SEC. 10. EXCLUSIVE RECOGNITION. (A) AN AGENCY SHALL ACCORD
EXCLUSIVE RECOGNITION TO A
LABOR ORGANIZATION WHEN THE ORGANIZATION HAS BEEN SELECTED, IN A
SECRET BALLOT ELECTION, BY A
MAJORITY OF THE EMPLOYEES IN AN APPROPRIATE UNIT AS THEIR
REPRESENTATIVE . . .
/16/ OF COURSE, THE PRINCIPLES HERE DISCUSSED DO NOT APPLY IF THE
REORGANIZATION DOES NOT INVOLVE DIFFERENT GAINING AND LOSING EMPLOYING
ENTITIES.
/17/ IF AFTER A REORGANIZATION A QUESTION CONCERNING REPRESENTATION
IS DULY RAISED BY THE EMPLOYEES OR A RIVAL LABOR ORGANIZATION, THEN, AS
PROVIDED IN THE ORDER, A NEW SECRET BALLOT ELECTION WOULD BE REQUIRED.
/18/ SECTION 6(D) OF THE ORDER PROVIDES:
SEC. 6. ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS.
(D) THE ASSISTANT SECRETARY SHALL PRESCRIBE REGULATIONS NEEDED TO
ADMINISTER HIS FUNCTIONS
UNDER THIS ORDER.
/19/ IF AS A RESULT OF A REORGANIZATION A DETERMINATION IS MADE THAT
THE GAINING EMPLOYER IS NOT A "SUCCESSOR," THEN OF COURSE SUCH EMPLOYER
OWES NO DUTY TO BARGAIN WITH THE LABOR ORGANIZATION WHICH PREVIOUSLY
REPRESENTED THE AFFECTED EMPLOYEES. WHILE WE APPRECIATE THAT THERE IS
AN IMPACT ON EMPLOYEES IN SUCH A SITUATION, EXCLUSIVE RECOGNITION IS
DEPENDENT ON MEETING THE REQUIREMENTS OF SECTIONS 10(A) AND 10(B) OF THE
ORDER AND THESE REQUIREMENTS HAVE BEEN CAREFULLY DESIGNED TO FOSTER THE
DEVELOPMENT OF A SOUND FEDERAL LABOR-MANAGEMENT RELATIONS PROGRAM.
MOREOVER, EMPLOYEES AND LABOR ORGANIZATIONS ARE NOT PRECLUDED THEREAFTER
FROM EXERCISING THEIR RIGHTS UNDER THE ORDER TO ORGANIZE AND SEEK TO
ESTABLISH APPROPRIATE UNITS UNDER SECTION 10.
/20/ LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1975), AT P.
51.
/21/ IBID.
/22/ ACCORDING TO CSC:
THE INTENT OF SECTION 550.322(D) OF THE COMMISSION'S REGULATIONS IS
TO REDUCE, TO THE
EXTENT POSSIBLE, ANY ADVERSE IMPACT RELATING TO DUES WITHHOLDING AS A
RESULT OF AGENCY
REORGANIZATIONS AND TRANSFERS OF FUNCTIONS. TO THIS END, THE
PROVISIONS OF THIS REGULATION
SHOULD BE GIVEN A LIBERAL INTERPRETATION IN THEIR APPLICATION. SUCH
INTERPRETATION ALLOWS THE
CONTINUED ADMINISTRATION OF EXISTING DUES WITHHOLDING AGREEMENTS
PENDING THE RESOLUTION OF
REPRESENTATION AND SUCCESSORSHIP ISSUES INCIDENT TO AGENCY
REORGANIZATION.
/23/ FOR APPLICATION OF THIS POLICY IN AN UNFAIR LABOR PRACTICE CASE,
SEE NATIONAL LABOR RELATIONS BOARD, REGION 17, AND NATIONAL LABOR
RELATIONS BOARD, ASSISTANT SECRETARY CASE NO. 60-3035 (CA), FLRC NO.
73A-53 (OCTOBER 31, 1974), REPORT NO. 59.
/24/ AS THE COUNCIL STATED IN THE AVSCOM CASE, NOTE 2, SUPRA, AT P. 5
OF COUNCIL DECISION IN AVSCOM:
WHILE THE ASSISTANT SECRETARY POSSESSES THIS AUTHORITY, IT IS EQUALLY
CLEAR THAT THE
COUNCIL MAY REVIEW HIS REMEDIAL REQUIREMENTS IN THE SAME MANNER AND
PURSUANT TO THE SAME
STANDARDS AS OTHER ISSUES REVIEWED BY THE COUNCIL. SECTION 4(C) OF
THE ORDER PROVIDES THAT
THE COUNCIL MAY, AT ITS DISCRETION, CONSIDER APPEALS FROM ASSISTANT
SECRETARY DECISIONS, AND
WE VIEW THE REMEDIAL PORTION OF A DECISION AS AN INTEGRAL PART OF A
DECISION. ACCORDINGLY,
WHERE QUESTIONS ARISE WITH RESPECT TO REMEDY, THE COUNCIL MAY ACCEPT
SUCH A QUESTION FOR
REVIEW, CONSISTENT WITH ITS REQUIREMENTS FOR REVIEW AS SET FORTH IN
SECTION 2411.12 OF THE
COUNCIL'S RULES OF PROCEDURE.
/25/ LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1975), AT P.
50.
3 FLRC 784; FLRC NO. 75A-78; DECEMBER 2, 1975.
MS. JANET COOPER, STAFF ATTORNEY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
1737 H STREET, NW.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 75A-78
GENERAL SERVICES ADMINISTRATION, FEDERAL SUPPLY SERVICE, ASSISTANT
SECRETARY CASE NO. 22-5725 (CA). THE ASSISTANT SECRETARY DENIED THE
REQUEST OF THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES FOR REVERSAL OF
THE ASSISTANT REGIONAL DIRECTOR'S DISMISSAL OF THE COMPLAINT OF NFFE
LOCAL 1642, WHICH ALLEGED, IN SUBSTANCE, THAT THE ACTIVITY VIOLATED
SECTION 19(A)(1) AND (6) OF THE ORDER. NFFE APPEALED TO THE COUNCIL,
CONTENDING THAT THE ASSISTANT SECRETARY'S DECISION PRESENTED MAJOR
POLICY ISSUES.
COUNCIL ACTION (DECEMBER 2, 1975). THE COUNCIL FOUND THAT NFFE'S
PETITION FOR REVIEW DID NOT MEET THE REQUIREMENTS OF SECTION 2411.12 OF
THE COUNCIL'S RULES; THAT IS, THE DECISION OF THE ASSISTANT SECRETARY
DID NOT PRESENT A MAJOR POLICY ISSUE, AND NFFE NEITHER ALLEGED, NOR DID
IT APPEAR, THAT HIS DECISION WAS ARBITRARY AND CAPRICIOUS. ACCORDINGLY,
THE COUNCIL DENIED NFFE'S PETITION FOR REVIEW.
DEAR MS. COOPER:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
IN THIS CASE, LOCAL 1642, NATIONAL FEDERATION OF FEDERAL EMPLOYEES
(THE UNION), FILED A COMPLAINT AGAINST THE GENERAL SERVICES
ADMINISTRATION, FEDERAL SUPPLY AGENCY (THE ACTIVITY). ACCORDING TO THE
ASSISTANT REGIONAL DIRECTOR'S LETTER OF DISMISSAL, THE COMPLAINT
ALLEGED, IN SUBSTANCE, THAT THE ACTIVITY VIOLATED SECTION 19(A)(1) AND
(6) OF THE ORDER BY COMMISSIONING A STUDY AS TO THE FEASIBILITY OF
COMBINING ALL FEDERAL SUPPLY SERVICE QUALITY CONTROL LABORATORIES INTO
ONE WITHOUT CONSULTING THE UNION ABOUT THE STUDY, EVEN THOUGH TRANSFERS,
REASSIGNMENTS AND GENERAL CHAOS ABOUT DUTIES ASSERTEDLY RESULTED IN THE
UNIT.
THE ASSISTANT SECRETARY IN AGREEMENT WITH THE ARD AND BASED ON HIS
REASONING, FOUND THAT THE ACTIVITY WAS NOT OBLIGATED TO MEET AND CONFER
WITH THE UNION WITH RESPECT TO THE STUDY IN QUESTION. MOREOVER, THE
ASSISTANT SECRETARY FOUND THAT THE UNION HAD FAILED TO ESTABLISH A
REASONABLE BASIS FOR ITS ALLEGATION THAT PERSONNEL REASSIGNMENTS AND
TRANSFERS RESULTED FROM THE INSTANT STUDY. ACCORDINGLY, THE ASSISTANT
SECRETARY DENIED THE UNION'S REQUEST FOR REVERSAL OF THE ARD'S DISMISSAL
OF THE COMPLAINT, WHEREUPON THE UNION FILED THE INSTANT APPEAL.
IN YOUR PETITION FOR REVIEW ON BEHALF OF THE UNION, YOU ALLEGE,
INSOFAR AS IS PERTINENT TO THE FINDINGS OF THE ASSISTANT SECRETARY, THAT
THE ASSISTANT SECRETARY'S DECISION PRESENTS MAJOR POLICY ISSUES RELATING
TO (1) THE ACTIVITY'S OBLIGATION TO BARGAIN ON THE COMMISSIONING OF THE
STUDY AND THE ASSISTANT SECRETARY'S FAILURE TO CONDUCT A HEARING IN THIS
REGARD, AND (2), IN EFFECT, THE ALLEGED ADVERSE IMPACT OF THE SUBJECT
STUDY. /1/
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW DOES NOT MEET THE
REQUIREMENTS OF SECTION 2411.12 OF THE COUNCIL'S RULES; THAT IS, THE
DECISION OF THE ASSISTANT SECRETARY DOES NOT PRESENT A MAJOR POLICY
ISSUE, AND YOU DO NOT ALLEGE, NOR DOES IT APPEAR, THAT HIS DECISION WAS
ARBITRARY AND CAPRICIOUS.
SPECIFICALLY, WITH REGARD TO THE ACTIVITY'S ALLEGED OBLIGATION TO
NEGOTIATE AND THE ASSISTANT SECRETARY'S FAILURE TO CONDUCT A HEARING
THEREON, YOU FAIL TO CITE ANY BASIS, AND NONE APPEARS, FOR YOUR CLAIM
THAT THE ORDER IMPOSES AN OBLIGATION ON THE ACTIVITY TO NEGOTIATE
CONCERNING THE COMMISSIONING OF A FEASIBILITY STUDY ON THE
REORGANIZATION OF ITS QUALITY CONTROL LABORATORIES. MOREOVER, NO
PERSUASIVE REASON WAS ADVANCED IN YOUR APPEAL TO SUPPORT YOUR ASSERTION
THAT A HEARING WAS REQUIRED ON THIS MATTER. AS TO THE ALLEGED ADVERSE
IMPACT OF THE STUDY, YOUR APPEAL FAILS TO ADVERT TO ANY EVIDENCE
WHATSOEVER OF SUCH IMPACT OR TO ANY OTHER REASONABLE BASIS FOR THE
UNION'S COMPLAINT IN THIS REGARD. ACCORDINGLY, WITHOUT ADOPTING THE
PRECISE REASONING OF THE ASSISTANT SECRETARY, THE COUNCIL FINDS THAT NO
MAJOR POLICY ISSUE IS PRESENTED BY HIS DECISION.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT PRESENT A MAJOR
POLICY ISSUE, AND SINCE YOU DO NOT ALLEGE, NOR DOES IT APPEAR, THAT THE
ASSISTANT SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS, YOUR APPEAL
FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED IN SECTION 2411.12
OF THE COUNCIL'S RULES OF PROCEDURE. ACCORDINGLY, YOUR PETITION FOR
REVIEW IS HEREBY DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
A. WHELIHAN
GSA
/1/ YOU ALSO TAKE ISSUE IN YOUR APPEAL WITH REFERENCES IN THE ARD'S
LETTER TO SUCH MATTERS AS THE LIMITATION ON THE SCOPE OF THE COMPLAINT
UNDER THE ASSISTANT SECRETARY'S RULES; PRIOR CONSULTATIONS BY THE
PARTIES ON REORGANIZATION PROPOSALS; TIMELINESS OF THE CHARGE REGARDING
THE STUDY; AND MANAGEMENT'S CONSULTATIONS OR ASSURANCES OF FUTURE
CONSULTATION IF THE RESULTS OF THE STUDY WERE IMPLEMENTED. HOWEVER,
THESE MATTERS WERE NOT RELIED UPON BY THE ASSISTANT SECRETARY IN HIS
DECISION AND, APART FROM OTHER CONSIDERATIONS, THEY THEREFORE PROVIDE NO
BASIS FOR YOUR APPEAL.
3 FLRC 777; FLRC NO. 75A-84; NOVEMBER 28, 1975.
MS. JANET COOPER, STAFF ATTORNEY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
1737 H STREET, NW.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 75A-84
INDIANA ARMY AMMUNITION PLANT, CHARLESTOWN, INDIANA AND NATIONAL
FEDERATION OF FEDERAL EMPLOYEES LOCAL 1581 (RENDER, ARBITRATOR). THE
ARBITRATOR, IN HIS AWARD, DETERMINED THAT THE ACTIVITY DID NOT VIOLATE
THE PARTIES' AGREEMENT BY DIRECTING ACTIVITY EMPLOYEES TO TAKE ANNUAL
LEAVE OR LEAVE WITHOUT PAY ON HOLIDAYS AND SUMMER SHUTDOWNS OF THE
PRIVATE CONTRACTOR OPERATING THE INDIANA ARMY AMMUNITION PLANT. THE
UNION FILED EXCEPTIONS TO THE AWARD, ALLEGING THAT THE AWARD VIOLATES
(1) SECTION 19(A)(1) AND (6) OF THE ORDER AND (2) APPROPRIATE
REGULATIONS.
COUNCIL ACTION (NOVEMBER 28, 1975). AS TO (1), THE COUNCIL HELD THAT
THE EXCEPTION DOES NOT ASSERT A GROUND UPON WHICH THE COUNCIL WILL GRANT
REVIEW OF AN ARBITRATOR'S AWARD. WITH REGARD TO (2), THE COUNCIL HELD
THAT THE UNION HAD NOT ADVANCED ANY PERSUASIVE REASON OR FACTS AND
CIRCUMSTANCES IN SUPPORT OF ITS EXCEPTION. ACCORDINGLY, THE COUNCIL
DENIED THE UNION'S PETITION BECAUSE IT FAILED TO MEET THE REQUIREMENTS
FOR REVIEW SET FORTH IN SECTION 2411.32 OF THE COUNCIL'S RULES OF
PROCEDURE.
DEAR MS. COOPER:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF AN
ARBITRATOR'S AWARD, AND THE AGENCY'S OPPOSITION THERETO, IN THE
ABOVE-ENTITLED CASE.
ACCORDING TO THE ARBITRATOR'S AWARD, THE INDIANA ARMY AMMUNITION
PLANT ("PLANT") IS OWNED BY THE FEDERAL GOVERNMENT, BUT OPERATED BY A
PRIVATE CONTRACTOR. THE 16 GRIEVANTS ARE FEDERAL EMPLOYEES AT THE PLANT
WHO PERFORM AN INSPECTION FUNCTION BY MONITORING "THE PRODUCT PRODUCED
BY THE OPERATING CONTRACTOR TO ASSURE THAT IT CONFORMS TO THE
GOVERNMENT'S SPECIFICATIONS."
THE EMPLOYEES OF THE PRIVATE CONTRACTOR HAVE BEEN GRANTED SEVERAL
HOLIDAYS AND A SUMMER VACATION PERIOD WHICH DO NOT NECESSARILY COINCIDE
WITH FEDERAL HOLIDAYS.
PRIOR TO NOVEMBER 1974, THE FEDERAL EMPLOYEES AT THE PLANT WERE
ENCOURAGED TO TAKE ANNUAL LEAVE ON THE CONTRACTOR HOLIDAYS AND SUMMER
SHUTDOWNS. THEY WERE NOT REQUIRED TO TAKE ANNUAL LEAVE SINCE THOSE WHO
DID NOT VOLUNTARILY ELECT TO TAKE ANNUAL LEAVE WERE ASSIGNED TO INSPECT
RETURNED DEFECTIVE PRODUCTS AND TO PERFORM "OTHER NONRECURRING WORK" AND
TO ATTEND NEEDED TRAINING PROGRAMS DURING THESE PERIODS. HOWEVER, WITH
MEMORANDA DATED NOVEMBER 1974 AND FEBRUARY 1975, THE COMMANDER AT THE
PLANT SET FORTH HIS PLANS FOR REDUCED STAFFING OF FEDERAL EMPLOYEES ON
CONTRACTOR HOLIDAYS AND DURING THE SUMMER PLANT SHUTDOWN AND REQUIRED
SUBMISSION OF ANNUAL LEAVE SLIPS AND REQUESTS FOR ADVANCE ANNUAL LEAVE
AND LEAVE WITHOUT PAY FOR THESE PERIODS. BY THE TERMS OF THE COLLECTIVE
BARGAINING AGREEMENT BETWEEN THE PLANT AND THE NATIONAL FEDERATION OF
FEDERAL EMPLOYEES ("UNION"), A GRIEVANCE CULMINATING IN ARBITRATION WAS
FILED CONCERNING THE MATTER OF THE REQUIRED REDUCED STAFFING. BEFORE
THE ARBITRATOR THE UNION ARGUED, INTER ALIA, THAT THE POLICY OF FORCED
USE OF LEAVE VIOLATED SECTION 16.4 /1/ OF THE PARTIES' COLLECTIVE
BARGAINING AGREEMENT.
THE ISSUE FORMULATED BY THE ARBITRATOR WAS "WHETHER THE EMPLOYER
VIOLATED THE COLLECTIVE BARGAINING AGREEMENT BY ISSUING A DIRECTIVE
ORDERING EMPLOYEES TO TAKE ANNUAL LEAVE OR LEAVE WITHOUT PAY . . . (ON
SEVERAL CONTRACTOR HOLIDAYS AND THE CONTRACTOR'S SUMMER SHUTDOWN)
BECAUSE THE OPERATING CONTRACTOR OF THE INDIANA ARMY AMMUNITION PLANT
WOULD NOT BE OPERATING THE PLANT ON THOSE DAYS."
THE ARBITRATOR DENIED THE GRIEVANCES. HE FOUND THAT SECTION 16.4 OF
THE PARTIES' AGREEMENT, AS EXPLAINED BY FPM CHAPTER 610, SUBCHAPTER 3
/2/ (MADE BINDING ON THE PARTIES BY SECTION 3.1 /3/ OF THEIR AGREEMENT)
DID NOT "COVER THE KINDS OF PLANT CLOSURES INVOLVED IN THESE
GRIEVANCES." THE ARBITRATOR ALSO STATED THAT EVEN IF THE "SITUATIONS OF
FORCED ANNUAL LEAVE DURING THE CONTRACTOR HOLIDAYS AND SUMMER PLANT
SHUTDOWN ARE THOUGHT TO BE WITHIN THE ARTICLE ON WORK INTERRUPTIONS
(SECTION 16.4), THE COMMANDER'S AUTHORITY TO DO ANYTHING OTHER THAN HE
DID IS SEVERELY CIRCUMSCRIBED BY CIVILIAN PERSONNEL MANUAL 990.2,
CHAPTER 610.S3, S3-3C." /4/ UNDER THIS REGULATION, THE ARBITRATOR
DETERMINED THAT "THE ONLY COURSE OF ACTION OPEN" TO THE COMMANDER AT THE
PLANT WAS TO DO AS HE HAD SINCE HE DID NOT HAVE THE AUTHORITY UNDER THE
COLLECTIVE BARGAINING AGREEMENT (AS SUPPLEMENTED BY THE REGULATION) TO
PERMIT EMPLOYEES TO REPORT TO WORK IF THERE WAS NO WORK TO BE PERFORMED
AND NO LEGITIMATE NEED FOR TRAINING. FURTHER, THE ARBITRATOR CONCLUDED
"THAT THE COLLECTIVE BARGAINING AGREEMENT GIVES MANAGEMENT THE AUTHORITY
TO REQUIRE ANNUAL LEAVE ON CONTRACTOR HOLIDAYS AND DURING THE SUMMER
SHUTDOWN" SINCE SECTION 16.5 /5/ OF THE AGREEMENT PROVIDES THAT
"(A)NNUAL LEAVE MAY BE SCHEDULED SO AS TO ACCOMMODATE SPECIAL
FLUCTUATIONS OF WORK OF THE ACTIVITY" AND FPM CHAPTER 630, SUBCHAPTER
3-4B /6/ GIVES SUPERVISORS THE RESPONSIBILITY TO DECIDE WHEN ANNUAL
LEAVE MAY BE TAKEN, FOR WHICH THE CRITERIA ARE THE "NEEDS OF THE SERVICE
RATHER THAN SOLELY . . . DESIRES OF THE EMPLOYEES."
THE UNION REQUESTS THAT THE COUNCIL ACCEPT ITS PETITION FOR REVIEW OF
THE ARBITRATOR'S AWARD ON THE BASIS OF TWO EXCEPTIONS DISCUSSED BELOW.
UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE, REVIEW OF
AN ARBITRATION AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON
THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE
EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES
APPLICABLE LAW, APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS
SIMILAR TO THOSE UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE
SUSTAINED BY COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS."
IN ITS FIRST EXCEPTION, THE UNION CONTENDS THAT THE ARBITRATOR'S
AWARD VIOLATES SECTION 19(A)(1) AND (6) OF THE ORDER, SINCE A PAST
PRACTICE HAS BEEN CHANGED BY THE ACTIVITY WITHOUT REGARD FOR THE
BARGAINING DUTIES IMPOSED BY THE ORDER. IN SUPPORT OF THIS EXCEPTION,
THE UNION MAINTAINS THAT "(T)O DECLARE THIS NOT TO BE A VIOLATION OF THE
CONTRACT IS CONTRARY TO THE ORDER." THE UNION'S FIRST EXCEPTION, ON ITS
FACE, APPEARS TO ALLEGE THAT THE AWARD VIOLATES THE ORDER.
NEVERTHELESS, WHEN THE SUBSTANCE OF THIS EXCEPTION AND ITS SUPPORTING
CONTENTIONS IS CONSIDERED, THE UNION IS, IN EFFECT, ALLEGING THAT THE
ACTIVITY'S CONDUCT VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER AND
THAT THE ARBITRATOR REACHED AN INCORRECT RESULT IN HIS INTERPRETATION OF
THE COLLECTIVE BARGAINING AGREEMENT SINCE HE FAILED TO FIND SUCH ACTION
TO BE IN VIOLATION OF THE AGREEMENT. HOWEVER, THE COUNCIL HAS
PREVIOUSLY HELD THAT A CONTENTION THAT AN ARBITRATOR HAS FAILED TO
DECIDE, DURING THE COURSE OF A GRIEVANCE ARBITRATION HEARING, WHETHER AN
UNFAIR LABOR PRACTICE HAS BEEN COMMITTED UNDER SECTION 19 OF THE ORDER
DOES NOT STATE A GROUND UPON WHICH THE COUNCIL WILL ACCEPT A PETITION
FOR REVIEW OF AN ARBITRATION AWARD. NORFOLK NAVAL SHIPYARD AND
TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO
(STRONGIN, ARBITRATOR), FLRC NO. 74A-85 (AUGUST 14, 1975), REPORT NO. 81
EMPLOYEES LOCAL 2677 (MATTHEWS, ARBITRATOR), FLRC NO. 74A-76 (JUNE 26,
1975), REPORT NO. 76. MOREOVER, THE COUNCIL LIKEWISE HAS HELD THAT
INTERPRETATION OF CONTRACT PROVISIONS IS A MATTER TO BE LEFT TO THE
ARBITRATOR'S JUDGMENT AND DOES NOT ASSERT A GROUND UPON WHICH THE
COUNCIL WILL GRANT REVIEW OF AN ARBITRATION AWARD UNDER SECTION 2411.32
OF ITS RULES. SEE, E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 12 AND U.S. DEPARTMENT OF LABOR (DALY, ARBITRATOR), FLRC NO.
72A-55 (SEPTEMBER 17, 1973), REPORT NO. 44; NAGE LOCAL R8-14 AND
FEDERAL AVIATION ADMINISTRATION, OKLAHOMA CITY, OKLAHOMA (STRATTON,
ARBITRATOR), FLRC NO. 74A-38 (JULY 30, 1975), REPORT NO. 79; AND
NORFOLK NAVAL SHIPYARD AND TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL
TRADES COUNCIL, AFL-CIO (STRONGIN, ARBITRATOR, FLRC NO. 74A-85 (AUGUST
14, 1975), REPORT NO. 81.
IN ITS SECOND EXCEPTION, THE UNION CONTENDS THAT THE AWARD VIOLATES
APPROPRIATE REGULATIONS-- SPECIFICALLY FEDERAL PERSONNEL MANUAL CHAPTER
630, SUBCHAPTER 11 AND SOME CIVIL SERVICE COMMISSION RECENTLY PROPOSED
"GUIDANCES FOR AGENCIES DURING CLOSEDOWN PERIODS." THE COUNCIL WILL
GRANT REVIEW OF AN ARBITRATION AWARD IN CASES WHERE IT APPEARS, BASED
UPON THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE
EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES
APPROPRIATE REGULATIONS. HERE, HOWEVER, THE UNION SIMPLY PARAPHRASES
THE CITED DIRECTIVE (FPM CHAPTER 630, SUBCHAPTER 11), ADVANCING NO
PERSUASIVE ARGUMENTS IN SUPPORT OF THIS EXCEPTION AND DESCRIBING NO
FACTS AND CIRCUMSTANCES SUFFICIENT TO SHOW THAT ANY BASIS EXISTS FOR
GRANTING REVIEW OF THE AWARD UNDER THIS EXCEPTION. FURTHER, IN REGARD
TO THE PROPOSED NEW "GUIDANCES," THE UNION FAILS TO ADVERT TO ANY
SPECIFIC CIVIL SERVICE COMMISSION ISSUANCE TO SUPPORT THIS CONTENTION
AND IT IS NOTED THAT, IN ANY EVENT, THE ISSUANCE IS APPARENTLY NOT
BINDING UPON AGENCIES. HENCE, IT WOULD NOT CONSTITUTE AN APPROPRIATE
REGULATION WITHIN THE MEANING OF SECTION 2411.32 OF THE COUNCIL'S RULES.
THEREFORE, THIS EXCEPTION LIKEWISE PROVIDES NO BASIS FOR ACCEPTANCE OF
THE UNION'S PETITION UNDER SECTION 2411.32 OF THE COUNCIL'S RULES.
ACCORDINGLY, THE UNION'S PETITION IS DENIED BECAUSE IT FAILS TO MEET
THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.32 OF THE
COUNCIL'S RULES OF PROCEDURE.
BY THE COUNCIL.
CC: C. E. THOMAS
ARMY
/1/ ACCORDING TO THE AWARD, SECTION 16.4 PROVIDES AS FOLLOWS:
WORK INTERRUPTIONS: EMPLOYEES WHO ARE PREVENTED FROM WORKING DUE TO
INTERRUPTIONS OR
SUSPENSION OF NORMAL WORK OPERATIONS WILL BE ASSIGNED TO OTHER
REASONABLE WORK OR
COMPREHENSIVE TRAINING PROGRAMS. ADMINISTRATIVE LEAVE WILL BE
GRANTED WHEN OTHER WORK OR
TRAINING IS UNAVAILABLE IN ACCORDANCE WITH APPROPRIATE REGULATIONS.
/2/ FPM CHAPTER 610, SUBCHAPTER 3 STATES, IN PERTINENT PART:
A. CLOSING AN ACTIVITY. THE CLOSING OF AN ACTIVITY FOR BRIEF
PERIODS IS WITHIN THE
ADMINISTRATIVE AUTHORITY OF AN AGENCY. THE HEAD OF AN AGENCY MAY
WISH TO DELEGATE THIS
AUTHORITY TO CLOSE FEDERAL INSTALLATIONS OR OFFICES TO MANAGERS
WITHIN THE AGENCY. EXAMPLES
OF REASONS FOR CLOSING ARE:
(1) INTERRUPTION OF NORMAL OPERATIONS OF AN ESTABLISHMENT BY EVENTS
BEYOND THE CONTROL OF
MANAGEMENT OR EMPLOYEES, SUCH AS EMERGENCY CONDITIONS DUE TO EXTREME
WEATHER CONDITIONS,
FIRES, FLOODS, OR SERIOUS INTERRUPTION TO PUBLIC TRANSPORTATION
SERVICES.
(2) FOR MANAGERIAL REASONS WHEN THE CLOSING OF AN ESTABLISHMENT OR
PORTIONS THEREOF IS
REQUIRED FOR SHORT PERIODS OF TIME; THE REASONS MAY INCLUDE SUCH
MATTERS AS REBUILDING,
BREAKDOWN OF MACHINES, OR POWER FAILURE.
(3) FOR A LOCAL HOLIDAY WHEN FEDERAL WORK MAY NOT PROPERLY BE
PERFORMED. IN DETERMINING
WHEN FEDERAL WORK MAY NOT BE PROPERLY PERFORMED, AGENCIES MAY WISH TO
CONSIDER ADOPTING THE
FOLLOWING STANDARD (WHICH HAS BEEN ADOPTED BY AGENCIES FOR OBSERVING
LOCAL HOLIDAYS IN PUERTO
RICO AND THE VIRGIN ISLANDS): EMPLOYEES OF THE OFFICE MUST BE
ACTUALLY PREVENTED FROM WORKING
BY ONE OF THE FOLLOWING CIRCUMSTANCES:
THE BUILDING OR OFFICE IN WHICH THE EMPLOYEES WORK IS PHYSICALLY
CLOSED; OR BUILDING
SERVICES ESSENTIAL TO PROPER PERFORMANCE OF WORK ARE NOT OPERATING.
(B) LOCAL TRANSPORTATION SERVICES ARE DISCONTINUED OR INTERRUPTED TO
THE POINT WHERE
EMPLOYEES ARE PREVENTED FROM REPORTING TO THEIR WORK LOCATION.
(C) THE DUTIES OF THE EMPLOYEES CONSIST LARGELY OR ENTIRELY OF
DEALING DIRECTLY WITH
EMPLOYEES AND OFFICIALS OF BUSINESS OR INDUSTRIAL ESTABLISHMENTS OR
LOCAL GOVERNMENT OFFICES,
AND ALL SUCH ESTABLISHMENTS ARE CLOSED IN OBSERVANCE OF THE HOLIDAY,
AND THERE ARE NO OTHER
DUTIES (CONSISTENT WITH THEIR NORMAL DUTIES) TO WHICH THE EMPLOYEES
CAN BE ASSIGNED ON THE
HOLIDAY.
/3/ ACCORDING TO THE AWARD, SECTION 3.1 PROVIDES IN PERTINENT PART:
BASIC PROVISIONS: IN THE ADMINISTRATION OF ALL MATTERS COVERED BY
THE AGREEMENT, OFFICIALS
AND EMPLOYEES ARE GOVERNED BY EXISTING OR FUTURE LAWS, AND THE
REGULATIONS OF APPROPRIATE
AUTHORITIES, INCLUDING POLICIES SET FORTH IN THE FEDERAL PERSONNEL
MANUAL . . .
/4/ ACCORDING TO THE AWARD, CIVILIAN PERSONNEL MANUAL 990.2, CHAPTER
610.S3, S3-3C STATES:
THE AUTHORITY TO EXCUSE EMPLOYEES ADMINISTRATIVELY IS NOT TO BE USED
IN INSTANCES WHERE THE
PERIOD OF INTERRUPTED OR SUSPENDED OPERATIONS CAN BE ANTICIPATED
SUFFICIENTLY IN ADVANCE TO
PERMIT ARRANGING FOR ASSIGNMENT TO OTHER WORK OR SCHEDULING OF ANNUAL
LEAVE. NORMALLY, WHERE
24 HOURS' ADVANCE NOTICE CAN BE GIVEN, EMPLOYEES WHO CANNOT BE
ASSIGNED TO OTHER WORK MUST BE
PLACED ON ANNUAL LEAVE WITH OR WITHOUT THEIR CONSENT.
/5/ ACCORDING TO THE AWARD, SECTION 16.5 PROVIDES IN PERTINENT PART
AS FOLLOWS:
ANNUAL LEAVE: ANNUAL LEAVE MAY BE SCHEDULED SO AS TO ACCOMMODATE
SPECIAL FLUCTUATIONS OF
WORK OF THE ACTIVITY. EACH EMPLOYEE IS ENCOURAGED TO TAKE AT LEAST
ONE 80 HOUR PERIOD FOR
VACATION PURPOSES. HOWEVER, SPECIAL EMPLOYEE NEEDS SHOULD BE
CONSIDERED WHERE LESSER AMOUNTS
OF TIME ARE DESIRABLE. IN ARRANGING VACATION SCHEDULES, EFFORT WILL
BE MADE TO GRANT
EMPLOYEES THEIR DESIRED SCHEDULE. IN THE EVENT THAT THERE IS A
CONFLICT WITH REGARD TO
VACATION SCHEDULES WHICH CANNOT BE RESOLVED OTHERWISE, ENTERED ON
DUTY WILL BE THE FIRST
DETERMINING FACTOR . . .
/6/ FPM CHAPTER 630, SUBCHAPTER 3-4B PROVIDES:
(1) GENERAL. ANNUAL LEAVE PROVIDED BY LAW IS A BENEFIT AND ACCRUES
AUTOMATICALLY. HOWEVER, SUPERVISORS HAVE THE RESPONSIBILITY TO
DECIDE WHEN THE LEAVE MAY BE
TAKEN. THIS DECISION WILL GENERALLY BE MADE IN THE LIGHT OF THE
NEEDS OF THE SERVICE RATHER
THAN SOLELY ON THE DESIRES OF THE EMPLOYEE. SUPERVISORS SHOULD
INSURE THAT ANNUAL LEAVE IS
SCHEDULED FOR USE SO AS TO PREVENT ANY UNINTENDED LOSS AT THE END OF
THE LEAVE YEAR.
3 FLRC 767; FLRC NO. 74A-67; NOVEMBER 28, 1975.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES LOCAL 2241
AND
VETERANS ADMINISTRATION HOSPITAL,
DENVER, COLORADO
(SYNOPSIS) FLRC NO. 74A-67
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 2241 AND VETERANS
ADMINISTRATION HOSPITAL, DENVER, COLORADO. THE DISPUTE INVOLVED THE
NEGOTIABILITY UNDER THE ORDER OF UNION PROPOSALS CONCERNING (1)
GRIEVANCE PROCEDURES; AND (2) ASSIGNMENT OF WORK.
COUNCIL ACTION (NOVEMBER 28, 1975). AS TO (1), THE COUNCIL FOUND,
CONTRARY TO THE UNION'S CONTENTION, THAT THE AGENCY REGULATION, WHICH
WAS RELIED UPON BY THE AGENCY HEAD TO LIMIT NEGOTIATION ON THE UNION'S
PROPOSAL, PROPERLY LIMITS THE BARGAINING OBLIGATION UNDER THE ORDER. AS
TO (2), THE COUNCIL CONCLUDED THAT THE PROPOSAL IS OUTSIDE THE AGENCY'S
BARGAINING OBLIGATION UNDER SECTION 11(B) OF THE ORDER. ACCORDINGLY,
PURSUANT TO SECTION 2411.28 OF THE COUNCIL'S RULES, THE COUNCIL FOUND
THAT THE AGENCY HEAD'S DETERMINATION THAT THE PROPOSALS HERE INVOLVED
ARE NONNEGOTIABLE WAS PROPER AND MUST BE SUSTAINED.
LOCAL 2241 IS THE RECOGNIZED BARGAINING AGENT FOR A UNIT OF ALL
NONPROFESSIONAL EMPLOYEES (WITH THE USUAL EXCEPTIONS) ASSIGNED TO THE
DENVER VETERANS ADMINISTRATION HOSPITAL. INCLUDED IN THE UNIT ARE
EMPLOYEES OF THE VETERANS CANTEEN SERVICE (VCS), A NONAPPROPRIATED FUND
ACTIVITY OF THE VETERANS ADMINISTRATION. IN THE COURSE OF COLLECTIVE
BARGAINING, THE UNION SUBMITTED TWO PROPOSALS (SET FORTH HEREINAFTER)
CONCERNING "GRIEVANCE PROCEDURES" AND "ASSIGNMENT OF WORK."
UPON REFERRAL BY THE UNION, THE VETERANS ADMINISTRATION DETERMINED
THAT THE PROPOSAL ON GRIEVANCE PROCEDURES, INSOFAR AS IT APPLIES TO THE
DISPOSITION OF REPRIMANDS AND SUSPENSIONS OF 30 DAYS OR LESS INVOLVING
VCS EMPLOYEES, IS NOT NEGOTIABLE UNDER AGENCY REGULATIONS; AND THAT
NEGOTIATION ON THE "ASSIGNMENT OF WORK" PROPOSAL IS PRECLUDED BY
SECTIONS 11(B) AND 12(B) OF THE ORDER. THE UNION APPEALED THIS
DETERMINATION TO THE COUNCIL UNDER SECTION 11(C)(4) OF THE ORDER AND THE
AGENCY FILED A STATEMENT OF POSITION.
THE UNION PROPOSALS WILL BE DISCUSSED SEPARATELY.
1. GRIEVANCE PROCEDURES. THE PROPOSED PROCEDURES, IN SECTION 1,
STATE:
THIS ARTICLE PROVIDES FOR A MUTUALLY ACCEPTABLE METHOD FOR THE PROMPT
AND EQUITABLE
SETTLEMENT OF GRIEVANCES OVER THE INTERPRETATION OR APPLICATION OF
THIS AGREEMENT. THESE
NEGOTIATED PROCEDURES SHALL BE THE EXCLUSIVE PROCEDURES AVAILABLE TO
THE UNION, THE HOSPITAL,
AND THE EMPLOYEES IN THE BARGAINING UNIT FOR RESOLVING SUCH
GRIEVANCES AND INVOLVING
ARBITRATION. QUESTIONS THAT CANNOT BE RESOLVED AS TO WHETHER A
MATTER IS SUBJECT TO GRIEVANCE
AND/OR ARBITRATION UNDER THIS AGREEMENT WILL BE REFERRED TO THE
ASSISTANT SECRETARY OF LABOR
FOR DECISION BEFORE PROCESSING THE MATTER FURTHER. ALL OTHER MATTERS
ARE EXCLUDED, INCLUDING
THOSE FOR WHICH STATUTORY APPEAL PROCEDURES EXIST. THESE PROCEDURES
ARE APPLIED TO TIMELY
GRIEVANCE APPEALS CONCERNING ADMONISHMENTS, REPRIMANDS, AND
SUSPENSIONS OF 30 DAYS OR
LESS. THESE ACTIONS WILL ONLY BE TAKEN FOR JUST AND SUFFICIENT CAUSE
AND SUCH GRIEVANCES WILL
BE INITIATED AT STEP 2 OF THE INFORMAL PROCEDURES. GRIEVANCES OTHER
THAN THOSE DEALING WITH
THE INTERPRETATION OR APPLICATION OF THE AGREEMENT WILL BE PROCESSED
UNDER THE VA GRIEVANCE
PROCEDURE.
THE AGENCY DETERMINED THAT THE PROPOSED PROCEDURE, ALTHOUGH
NEGOTIABLE IN ALL OTHER RESPECTS, IS VIOLATIVE OF AGENCY REGULATIONS
INSOFAR AS IT APPLIES TO REPRIMANDS AND SUSPENSIONS FOR 30 DAYS OR LESS
OF VCS EMPLOYEES. MORE PARTICULARLY, THE AGENCY DETERMINED THAT
PUBLISHED VETERANS ADMINISTRATION REGULATIONS, PREDATING THE CURRENT
NEGOTIATIONS, VEST AUTHORITY CONCERNING SUCH DISCIPLINARY ACTIONS IN THE
VCS FIELD DIRECTOR, AN OFFICIAL ABOVE THE ORGANIZATIONAL LEVEL OF THE
ACTIVITY INVOLVED IN THE NEGOTIATIONS LEADING TO THE CURRENT DISPUTE.
/1/ IN THIS REGARD, THE AGENCY ASSERTS THAT THE REGULATIONS CONSTITUTE A
PROPER EXERCISE OF ITS AUTHORITY UNDER THE ORDER AND WERE PROMULGATED TO
ASSURE AN EVEN-HANDED ADMINISTRATION OF DISCIPLINE AMONG VCS WORKERS,
AGENCY-WIDE. THEREFORE, THE AGENCY FURTHER ASSERTS, THE LOCAL ACTIVITY
DIRECTOR DOES NOT HAVE THE AUTHORITY TO NEGOTIATE A CONTRACTUAL
PROVISION CONCERNING THE DISPOSITION OF REPRIMANDS AND SUSPENSIONS
AFFECTING EMPLOYEES OF THE VCS, AS PROVIDED IN THE PROPOSAL IN DISPUTE.
THE UNION PRINCIPALLY CONTENDS THAT THE AGENCY'S REGULATIONS, AS
INTERPRETED AND APPLIED BY THE AGENCY HEAD, IMPROPERLY LIMIT THE
BARGAINING OBLIGATION UNDER THE ORDER. IN PARTICULAR, THE UNION ARGUES
THAT THE REGULATIONS (1) IMPROPERLY LIMIT THE BARGAINING OBLIGATION
UNDER SECTION 11(A), AS THAT SECTION WAS INTERPRETED AND APPLIED BY THE
COUNCIL IN ITS MERCHANT MARINE ACADEMY /2/ DECISION; AND (2) IMPROPERLY
LIMIT THE SCOPE OF THE GRIEVANCE PROCEDURE UNDER THE PRINCIPLES SET
FORTH BY THE COUNCIL IN ITS ELMENDORF /3/ DECISION. ADDITIONALLY, THE
UNION CONTENDS THAT THE AGENCY HAS APPROVED, AT OTHER ACTIVITIES, AT
LEAST THREE CONTRACTS CONTAINING CLAUSES SIMILAR TO THE ONE AT ISSUE IN
THIS CASE; AND THAT, IF THE COUNCIL SUSTAINS THE AGENCY'S DETERMINATION
OF NONNEGOTIABILITY HERE, IT "WILL LEAVE IN DOUBT THE STATUS OF THESE
(OTHER) AGREEMENTS AS THEY APPLY TO CANTEEN EMPLOYEES."
SECTION 11(A) OF THE ORDER AS CURRENTLY EFFECTIVE AND AS EFFECTIVE AT
THE TIME OF THE MERCHANT MARINE DECISION, ESTABLISHES A BARGAINING
OBLIGATION LIMITED, AMONG OTHER WAYS, BY THE PHRASE "SO FAR AS MAY BE
APPROPRIATE UNDER APPLICABLE LAWS AND REGULATIONS, INCLUDING . . .
PUBLISHED AGENCY POLICIES AND REGULATIONS . . . " /4/ THE COUNCIL HAS
STATED IN PRIOR DECISIONS THAT THIS SECTION OF THE ORDER AS WELL AS THE
1969 REPORT /5/ , BY REFERENCE TO SUCH POLICIES AND REGULATIONS AS AN
APPROPRIATE LIMITATION ON THE SCOPE OF NEGOTIATIONS, FULLY SUPPORTS THE
STATUTORY AUTHORITY OF AN AGENCY HEAD TO ISSUE REGULATIONS GOVERNING THE
OPERATION OF HIS AGENCY AND THE CONDUCT OF HIS EMPLOYEES. /6/
IN ITS MERCHANT MARINE DECISION, RELIED UPON BY THE UNION IN THIS
CASE, THE COUNCIL WAS CONCERNED WITH A HIGHER LEVEL AGENCY REGULATION
WHICH DEALT ONLY WITH TERMS AND CONDITIONS OF EMPLOYMENT UNIQUE TO A
PARTICULAR BARGAINING UNIT. AS THE COUNCIL EXPLAINED IN THAT DECISION,
THE "APPLICABLE LAWS AND REGULATIONS, INCLUDING . . . PUBLISHED AGENCY
POLICIES AND REGULATIONS" WHICH, UNDER SECTION 11(A), MAY PROPERLY LIMIT
THE SCOPE OF NEGOTIATIONS ARE:
. . . ONES ISSUED TO ACHIEVE A DESIRABLE DEGREE OF UNIFORMITY AND
EQUALITY IN THE
ADMINISTRATION OF MATTERS COMMON TO ALL EMPLOYEES OF THE AGENCY, OR,
AT LEAST, TO EMPLOYEES OF
MORE THAN ONE SUBORDINATE ACTIVITY. ANY OTHER INTERPRETATION OF THE
PHRASE "PUBLISHED AGENCY
POLICIES AND REGULATIONS," IN THE CONTEXT OF THE ORDER, WHICH WOULD
PERMIT AD HOC LIMITATIONS
ON THE SCOPE OF NEGOTIATIONS IN A PARTICULAR BARGAINING UNIT, WOULD
MAKE A MOCKERY OF THE
BARGAINING OBLIGATION. FOR IT WOULD MEAN THAT A SUPERIOR OFFICIAL
COULD DICTATE ANY LIMIT ON
THE SCOPE OF NEGOTIATIONS IN A PARTICULAR AGENCY ACTIVITY MERELY BY
PUBLISHING INSTRUCTIONS TO
THE ACTIVITY HEAD WITH RESPECT TO PERSONNEL POLICIES AND WORKING
CONDITIONS UNIQUE TO THAT
ACTIVITY.
THEREFORE, SINCE THE COUNCIL FOUND THAT THE AGENCY REGULATION AT
ISSUE IN MERCHANT MARINE WAS NOT AN "APPLICABLE REGULATION" WITHIN THE
MEANING OF SECTION 11(A) OF THE ORDER BECAUSE IT DEALT WITH TERMS AND
CONDITIONS OF EMPLOYMENT UNIQUE TO A PARTICULAR BARGAINING UNIT, THE
COUNCIL HELD THAT THE REGULATION COULD NOT PROPERLY LIMIT THE BARGAINING
OBLIGATION OF SECTION 11(A).
THE UNION, SEEKING TO SUPPORT ITS POSITION IN THIS CASE BY RELIANCE
ON THE MERCHANT MARINE DECISION, IMPRECISELY PARAPHRASES IN ITS PETITION
FOR REVIEW THE ABOVE-QUOTED LANGUAGE, AS FOLLOWS:
THE POLICIES AND REGULATIONS REFERRED TO IN SECTION 11(A) OF THE
ORDER AS AN APPROPRIATE
LIMITATION ON THE SCOPE OF NEGOTIATIONS ARE ONES ISSUED TO ACHIEVE A
DESIRABLE DEGREE OF
UNIFORMITY AND EQUITY IN THE ADMINISTRATION OF MATTERS COMMON TO ALL
EMPLOYEES. ANY OTHER
INTERPRETATION OF THE PHRASE "PUBLISHED AGENCY POLICIES AND
REGULATIONS" IN THE CONTEXT OF THE
ORDER WOULD PERMIT AD HOC LIMITATIONS ON THE SCOPE OF BARGAINING FOR
A CLASS OF EMPLOYEES
WITHIN A PARTICULAR BARGAINING UNIT AND MAKE A MOCKERY OF THE
BARGAINING OBLIGATION. IT WOULD
MEAN THAT THE ADMINISTRATOR, CANTEEN SERVICE, COULD UNILATERALLY
DICTATE THE LIMITS ON THE
SCOPE OF NEGOTIATIONS FOR CANTEEN EMPLOYEES IN BARGAINING UNITS THAT
INCLUDE OTHER VA
EMPLOYEES. HE WOULD DO THIS BY MERELY PUBLISHING INSTRUCTIONS TO THE
HEAD OF THE BARGAINING
UNIT WITH RESPECT TO PERSONNEL POLICIES AND WORKING CONDITIONS UNIQUE
TO CANTEEN EMPLOYEES.
MANIFESTLY, THE UNION'S LANGUAGE DOES NOT ACCURATELY REFLECT THE
PRINCIPLES OF THE MERCHANT MARINE DECISION. SPECIFICALLY, THE UNION'S
ARGUMENT FAILS TO CONSIDER THAT THE REGULATION INVOLVED HERE, UNLIKE THE
ONE IN DISPUTE IN THE MERCHANT MARINE CASE WHICH APPLIED TO A SINGLE
BARGAINING UNIT, IS APPLICABLE UNIFORMLY TO ALL VCS EMPLOYEES,
NATIONWIDE, WHEREVER LOCATED, WHETHER COMPRISING A DISCRETE BARGAINING
UNIT, INCLUDED IN A UNIT WITH OTHER EMPLOYEES, OR WITHOUT
REPRESENTATION. THAT IS, THE VETERANS ADMINISTRATION REGULATION IS NOT
CONCERNED WITH TERMS AND CONDITIONS OF EMPLOYMENT UNIQUE TO A PARTICULAR
BARGAINING UNIT, AS DISTINGUISHED FROM THE REGULATION IN THE MERCHANT
MARINE CASE. FURTHER, IN THIS REGARD, THE REGULATION HERE WAS ISSUED TO
ACHIEVE, IN EFFECT, A DESIRABLE DEGREE OF UNIFORMITY AND EQUALITY IN THE
ADMINISTRATION OF PARTICULAR DISCIPLINARY MATTERS FOR ALL VCS EMPLOYEES.
THUS THE REGULATION HERE IN QUESTION, BY ITS SCOPE AND COVERAGE, COULD
NOT SERVE AS THE BASIS FOR "AD HOC LIMITATIONS ON THE SCOPE OF
BARGAINING FOR A CLASS OF EMPLOYEES WITHIN A PARTICULAR BARGAINING UNIT"
AS CLAIMED BY THE UNION. ACCORDINGLY, WE MUST FIND THAT THE AGENCY
REGULATION HERE AT ISSUE IS AN "APPLICABLE REGULATION," WITHIN THE
MEANING OF SECTION 11(A) OF THE ORDER, WHICH MAY PROPERLY LIMIT THE
SCOPE OF NEGOTIATION, CONSISTENT WITH THE MERCHANT MARINE DECISION.
AS TO THE UNION'S CLAIM THAT THE AGENCY REGULATION IS INCONSISTENT
WITH THE PRINCIPLES UPON WHICH THE COUNCIL'S ELMENDORF DECISION IS
BASED, WE FIND SUCH CLAIM, ALSO, TO BE WITHOUT MERIT. ELMENDORF
INVOLVED TWO PROVISIONS OF A HIGHER LEVEL AGENCY DIRECTIVE WHICH
PURPORTED TO (1) REQUIRE THAT ANY AGREEMENT NEGOTIATED WITH A LABOR
ORGANIZATION CONTAIN A STATEMENT THAT QUESTIONS AS TO THE INTERPRETATION
OF PUBLISHED AGENCY POLICIES OR REGULATIONS, PROVISIONS OF LAW, OR
REGULATIONS OF APPROPRIATE AUTHORITIES OUTSIDE THE AGENCY WOULD NOT BE
RESOLVED THROUGH THE GRIEVANCE PROCEDURE NEGOTIATED BY THE PARTIES,
REGARDLESS OF WHETHER SUCH POLICIES, LAWS, OR REGULATIONS WERE
INCORPORATED OR REFERENCED IN THE AGREEMENT; AND (2) ESTABLISH AN
ALTERNATIVE AGENCY PROCEDURE FOR RESOLUTION OF SUCH QUESTIONS. THE
COUNCIL HELD THAT THE DISPUTED PROVISIONS OF THE DIRECTIVE WERE
VIOLATIVE OF SECTION 13 OF E.O. 11491, AS AMENDED BY E.O. 11616 AND IN
DISCORD WITH THE CONCLUDING REQUIREMENT OF E.O. 11616 THAT, "EACH AGENCY
SHALL ISSUE APPROPRIATE POLICIES AND REGULATIONS CONSISTENT WITH THIS
ORDER FOR ITS IMPLEMENTATION."
IN CONTRAST WITH THE CIRCUMSTANCES OF THE ELMENDORF CASE, THE
VETERANS ADMINISTRATION REGULATION PRESENTLY BEFORE US IS NOT CONCERNED
WITH THE FORM AND SCOPE OF GRIEVANCE PROCEDURES UNDER SECTION 13 OF THE
ORDER, NOR DOES IT DEAL WITH IMPLEMENTATION OF THE ORDER OR ITS
AMENDMENTS. RATHER, IT REFLECTS A HIGHER-LEVEL AGENCY DECISION
SPECIFICALLY WITH RESPECT TO THE DELEGATION, WITHIN THE AGENCY'S
MANAGEMENT HIERARCHY, OF CERTAIN DISCIPLINARY AUTHORITY OVER VCS
EMPLOYEES. THAT IS, THE REGULATION HERE IN QUESTION PRESCRIBES THAT THE
FINAL AUTHORITY TO DECIDE AND ACT ON REPRIMANDS OR SUSPENSIONS FOR 30
DAYS OR LESS OF VCS WORKERS WILL BE EXERCISED BY A MANAGEMENT OFFICIAL
AT A LEVEL IN THE AGENCY'S STRUCTURE TO WHICH THE NEGOTIATING ACTIVITY
IN THIS CASE IS SUBORDINATE. AND, AS ALREADY MENTIONED, THE AGENCY
INDICATES THAT ITS DETERMINATION TO WITHHOLD SUCH AUTHORITY FROM THE
ACTIVITY LEVEL IS INTENDED TO ACHIEVE, IN EFFECT, UNIFORMITY AND
EQUALITY IN THE ADMINISTRATION OF SUCH DISCIPLINE AMONG ALL VCS
EMPLOYEES. IN THIS REGARD, AS ALREADY INDICATED, THE REGULATION
OPERATES WITHOUT REFERENCE TO ACTIVITY OR BARGAINING UNIT LINES AND HAS
EQUAL EFFECT ON BOTH REPRESENTED AND UNREPRESENTED EMPLOYEES OF THE VCS.
HENCE, WE MUST FIND THAT THE REGULATION IN QUESTION IS NOT ONE WHICH
IMPROPERLY LIMITS THE SCOPE OF THE GRIEVANCE PROCEDURE UNDER THE
PRINCIPLES ENUNCIATED IN THE ELMENDORF DECISION, SINCE SUCH PRINCIPLES
ARE INAPPOSITE IN THE CIRCUMSTANCES OF THE PRESENT CASE.
FINALLY, WITH REGARD TO THE UNION'S CONTENTIONS CONCERNING PROVISIONS
IN OTHER APPROVED AGREEMENTS WHICH ALLEGEDLY ARE SIMILAR TO THE ONE
PROPOSED HERE, SUCH BARGAINING HISTORY IS WITHOUT CONTROLLING
SIGNIFICANCE WHERE, AS HERE, APPLICABLE PUBLISHED AGENCY REGULATIONS
LIMIT THE SCOPE OF BARGAINING UNDER SECTION 11(A) OF THE ORDER. AS THE
COUNCIL FIRST STATED IN ITS KIRK ARMY HOSPITAL DECISION: /7/
ALTHOUGH OTHER CONTRACTS MAY HAVE INCLUDED SUCH PROVISIONS, AS
CLAIMED BY THE UNION, THIS
CIRCUMSTANCE CANNOT ALTER THE EXPRESS LANGUAGE AND INTENT OF THE
ORDER AND IS WITHOUT
CONTROLLING SIGNIFICANCE IN THIS CASE.
MOREOVER, IN THE COUNCIL'S OPINION, WHETHER THE DECISION HEREIN, AS
CLAIMED BY THE UNION, LEAVES IN DOUBT THE "STATUS" OF SUCH OTHER AGENCY
AGREEMENTS AS MAY CONTAIN PROVISIONS SIMILAR TO THE PROPOSAL IN DISPUTE,
IS NOT A QUESTION PROPERLY BEFORE THE COUNCIL IN THIS APPEAL.
THEREFORE, WE MAKE NO RULING IN THE INSTANT CASE WITH RESPECT TO SUCH
OTHER AGREEMENTS.
IN SUMMARY, THEREFORE, WE FIND, CONTRARY TO THE UNION'S CONTENTION,
THAT THE AGENCY REGULATION RELIED UPON TO LIMIT NEGOTIATION ON THE
UNION'S PROPOSAL PROPERLY LIMITS THE BARGAINING OBLIGATION UNDER THE
ORDER. /8/
2. ASSIGNMENT OF WORK. THE SECOND DISPUTED PROPOSAL READS AS
FOLLOWS:
EMPLOYER AGREES THAT THE ASSIGNMENT OF DUTIES WILL BE CONSISTENT AND
RELATED TO THE
EMPLOYEE'S POSITION AND HIS QUALIFICATIONS. OTHER DUTIES AS ASSIGNED
MEANS OTHER RELATED
DUTIES. THIS DOES NOT CHANGE THE EMPLOYER'S RIGHT TO ASSIGN DUTIES--
CONSISTENT WITH THE
SPIRIT AND INTENT OF THIS AGREEMENT.
THE AGENCY'S POSITION, BASED PRINCIPALLY ON THE COUNCIL'S GRIFFISS
DECISION, /9/ IS THAT THIS PROPOSAL WOULD IMPROPERLY RESTRICT MANAGEMENT
IN THE ASSIGNMENT OF DUTIES TO POSITIONS AND EMPLOYEES, I.E., IN ITS
DETERMINATION OF JOB CONTENT. THEREFORE, THE AGENCY CONTENDS, THE
PROPOSAL IS OUTSIDE THE BARGAINING OBLIGATION UNDER SECTION 11(B) OF THE
ORDER. /10/
THE UNION, ON THE OTHER HAND, BASED ON THE COUNCIL'S LOUISVILLE
ORDNANCE STATION DECISION, /11/ CONTENDS, IN EFFECT, THAT THE PROPOSAL
IS DIRECTED AT THE PRECISION AND COMPLETENESS OF POSITION DESCRIPTIONS
AND NOT AT THE CONTENT OF JOBS THEMSELVES.
IN THE GRIFFISS CASE, RELIED UPON BY THE AGENCY, THE COUNCIL
CONSIDERED A UNION PROPOSAL WHICH WOULD HAVE PROHIBITED THE ASSIGNMENT
OF FUNCTIONS, CLAIMED BY THE UNION TO BE "TOTALLY UNRELATED TO THE
NORMAL, EXPECTED, AND WIDELY UNDERSTOOD DUTIES OF FIRE FIGHTERS," TO
POSITIONS IN A FIRE FIGHTING UNIT. (EMPHASIS IN ORIGINAL.) THE COUNCIL
RULED THAT THE SPECIFIC DUTIES ASSIGNED TO PARTICULAR JOBS, INCLUDING
TASKS ALLEGEDLY UNRELATED TO THE PRIMARY FUNCTIONS OF THE EMPLOYEES
CONCERNED, ARE EXCEPTED FROM THE AGENCY'S OBLIGATION TO BARGAIN UNDER
SECTION 11(B) AND, THUS, SUSTAINED THE AGENCY'S DETERMINATION OF
NONNEGOTIABILITY.
IN CONTRAST, THE PROPOSAL INVOLVED IN THE LOUISVILLE CASE, RELIED
UPON BY THE UNION, HEREIN, WAS EXPRESSLY DIRECTED AT THE MEANING OF
LANGUAGE IN POSITION DESCRIPTIONS, WHICH DESCRIPTIONS DO NOT DETERMINE
BUT, RATHER, MERELY REFLECT THE ASSIGNMENT OF DUTIES. /12/ HENCE, IN
THAT CASE, THE COUNCIL NOTED THAT:
THE UNION'S PROPOSAL THUS WOULD NOT RESTRICT THE AGENCY'S RIGHT TO
PRESCRIBE SPECIFICALLY
IN THE JOB DESCRIPTION ANY DUTIES WHICH IT WISHES TO ASSIGN TO AN
EMPLOYEE OR POSITION AND TO
CHANGE THE JOB DESCRIPTION WITHOUT LIMITATION TO REFLECT SUCH CHANGES
IN
ASSIGNMENTS. (EMPHASIS IN THE ORIGINAL.)
ACCORDINGLY, THE COUNCIL HELD IN LOUISVILLE THAT THE UNION'S
PROPOSAL, WHICH REQUIRED THE MERE DEFINITION AND CLARIFICATION OF
GENERAL TERMS IN POSITION DESCRIPTIONS, WAS NOT EXCEPTED FROM THE
OBLIGATION TO BARGAIN UNDER SECTION 11(B) OF THE ORDER.
TURNING TO THE INSTANT PROPOSAL, AS PREVIOUSLY SET FORTH, IT IS CLEAR
FROM THE EXPRESS LANGUAGE THEREOF, THAT THE PROPOSAL WOULD CONSTRICT
ACTUAL ASSIGNMENT OF DUTIES BY THE AGENCY AS IN THE GRIFFISS CASE,
RATHER THAN MERELY DEFINE AND CLARIFY GENERAL TERMS IN POSITION
DESCRIPTIONS AS IN LOUISVILLE. MORE PARTICULARLY, THE FIRST SENTENCE OF
THE INSTANT PROPOSAL WOULD CONDITION THE ASSIGNMENT OF DUTIES ON WHETHER
THEY ARE "CONSISTENT AND RELATED TO THE EMPLOYEE'S POSITION AND HIS
QUALIFICATIONS." IN THIS SPECIFIC REGARD, THE COUNCIL CONSIDERED SIMILAR
LANGUAGE IN THE VA HOSPITAL, LEBANON, PENNSYLVANIA CASE. /13/ IN THAT
CASE THE UNION ARGUED THAT NOTHING IN THE ORDER PROSCRIBES NEGOTIATION
OF A PROPOSAL WHICH WOULD PREVENT ASSIGNING AUTOPSY DUTIES TO STAFF
PHYSICIANS WHEN THERE IS A PATHOLOGIST EMPLOYED BY THE HOSPITAL BECAUSE,
AS THE UNION THERE CLAIMED, SUCH DUTIES ARE NOT REASONABLY RELATED TO
THE "QUALIFICATIONS AND POSITION" OF STAFF PHYSICIANS. REJECTING THE
UNION'S ARGUMENT, THE COUNCIL FOUND THAT THE PROPOSAL DEALT WITH JOB
CONTENT AND, UNDER GRIFFISS, WAS THEREFORE OUTSIDE THE OBLIGATION TO
BARGAIN UNDER SECTION 11(B) OF THE ORDER.
IN OUR OPINION, THE PROPOSAL IN THE PRESENT CASE, WHICH SIMILARLY
SEEKS TO REQUIRE MANAGEMENT TO ASSIGN DUTIES "CONSISTENT AND RELATED TO
THE EMPLOYEE'S POSITION AND HIS QUALIFICATIONS," ALSO WOULD INTERFERE
WITH MANAGEMENT'S DETERMINATION OF JOB CONTENT AND THEREFORE COMPELS THE
SAME CONCLUSION ON THE PART OF THE COUNCIL: THE INSTANT PROPOSAL IS
OUTSIDE THE AGENCY'S BARGAINING OBLIGATION UNDER SECTION 11(B) OF THE
ORDER BASED ON THE DECISIONS AND ANALYSES IN GRIFFISS AND SUBSEQUENT,
RELATED COUNCIL CASES. /14/
FOR THE REASONS SET FORTH ABOVE, AND PURSUANT TO SECTION 2411.28 OF
THE COUNCIL'S RULES AND REGULATIONS, WE FIND THAT THE AGENCY HEAD'S
DETERMINATION THAT THE PROPOSALS HERE INVOLVED ARE NONNEGOTIABLE WAS
PROPER AND MUST BE SUSTAINED.
BY THE COUNCIL.
ISSUED: NOVEMBER 28, 1975
/1/ VETERANS CANTEEN SERVICE OPERATING PROCEDURES, CHAPTER 541,
PROCEDURE 04 PROVIDES, INTER ALIA, THAT:
THE FIELD CIRECTOR WILL CONSIDER ALL THE FACTS, INCLUDING ANY
STATEMENT MADE BY THE
EMPLOYEE. IF HE DETERMINES THAT A REPRIMAND IS JUSTIFIED, HE WILL
ISSUE THE REPRIMAND TO THE
EMPLOYEE STATING THE REASONS FOR THE ACTION, THAT A COPY OF THE
REPRIMAND WILL BE PLACED IN
HIS OFFICIAL PERSONNEL FOLDER, AND HIS RIGHT TO APPEAL THE REPRIMAND
. . . IF HE DETERMINES
THAT A REPRIMAND IS NOT JUSTIFIED, HE WILL INFORM THE EMPLOYEE OF THE
REASONS IN WRITING
THROUGH THE SUPERVISOR.
SECTION 05, READ IN CONJUNCTION WITH SECTION 10 OF THE CITED
REGULATION, SIMILARLY VESTS DECISIONAL AUTHORITY CONCERNING SUSPENSIONS
OF 30 DAYS OR LESS IN THE FIELD DIRECTOR.
/2/ UNITED FEDERATION OF COLLEGE TEACHERS AND U.S. MERCHANT MARINE
ACADEMY, FLRC NO. 7A1-15 (NOVEMBER 20, 1972), REPORT NO. 30.
/3/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1668 AND
ELMENDORF AIR FORCE BASE (WILDWOOD AIR FORCE STATION), ALASKA, FLRC NO.
72A-10 (MAY 12, 1973), REPORT NO. 38.
/4/ MORE FULLY, SECTION 11(A) PROVIDES, IN RELEVANT PART, THAT:
AN AGENCY AND A LABOR ORGANIZATION THAT HAS BEEN ACCORDED EXCLUSIVE
RECOGNITION, THROUGH
APPROPRIATE REPRESENTATIVES, SHALL MEET AT REASONABLE TIMES AND
CONFER IN GOOD FAITH WITH
RESPECT TO PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING
WORKING CONDITIONS, SO FAR
AS MAY BE APPROPRIATE UNDER APPLICABLE LAWS AND REGULATIONS,
INCLUDING POLICIES SET FORTH IN
THE FEDERAL PERSONNEL MANUAL, PUBLISHED AGENCY POLICIES AND
REGULATIONS . . . AND THIS ORDER.
/5/ LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1975), SECTION
E.2., AT 71.
/6/ SEE, E.G., NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES AND U.S.
DEPARTMENT OF COMMERCE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION,
NATIONAL WEATHER SERVICE, FLRC NO. 74A-20 (FEBRUARY 21, 1975), REPORT
NO. 62; IAM&AW LODGE 2424 AND KIRK ARMY HOSPITAL AND ABERDEEN RESEARCH
AND DEVELOPMENT CENTER, ABERDEEN, MD., FLRC NO. 72A-18 (SEPTEMBER 18,
1973), REPORT NO. 44; SEATTLE CENTER CONTROLLER'S UNION AND FEDERAL
AVIATION ADMINISTRATION, FLRC NO. 7A1-57 (MAY 16, 1973), REPORT NO. 37;
AND NATIONAL FEDERATION OF FEDERAL EMPLOYEES LOCAL 779 AND DEPARTMENT OF
AIR FORCE, SHEPPARD AIR FORCE BASE, FLRC NO. 71A-60 (APRIL 27, 1973),
REPORT NO. 36.
/7/ INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS AND
U.S. KIRK ARMY HOSPITAL, ABERDEEN, MD., FLRC NO. 70A-11 (MARCH 10,
1971), REPORT NO. 5; ACCORD, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES LOCAL 1966 AND VETERANS ADMINISTRATION HOSPITAL, LEBANON,
PENNSYLVANIA, FLRC NO. 72A-41 (DECEMBER 14, 1973), REPORT NO. 46.
/8/ IN THIS REGARD, WE DO NOT, OF COURSE, PASS ON WHETHER THE AGENCY
REGULATION WOULD PROPERLY LIMIT NEGOTIATIONS UNDER SECTION 11(A) AND (C)
OF E.O. 11491 AS RECENTLY AMENDED BY E.O. 11838. THAT IS, WE DO NOT
PASS UPON WHETHER THERE WOULD BE A "COMPELLING NEED" FOR THE REGULATION
UNDER PART 2413 OF THE COUNCIL'S RULES AND REGULATIONS (40 FR 43884)
WHICH BECOMES EFFECTIVE DECEMBER 23, 1975.
/9/ INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL F-111, AND
GRIFFISS AIR FORCE BASE, ROME, NEW YORK, FLRC NO. 71A-30 (APRIL 27,
1973), REPORT NO. 36.
/10/ THE AGENCY ALSO CONTENDS THAT THE PROPOSAL VIOLATES SECTION
12(B)(2) OF THE ORDER. IN OUR VIEW, AS SET FORTH HEREIN, THE PROPOSAL
AT ISSUE IS PRINCIPALLY CONCERNED WITH JOB CONTENT AND SECTION 12(B) IS
INAPPLICABLE.
/11/ LOCAL LODGE 830, INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, AND LOUISVILLE ORDNANCE STATION, DEPARTMENT OF THE
NAVY, FLRC NO. 73A-21 (FEBRUARY 5, 1974), REPORT NO. 48.
/12/ IN LOUISVILLE, THE PERTINENT UNION PROPOSAL PROVIDED AS FOLLOWS:
ARTICLE 18, SECTION 6
A. WHEN THE TERM, "SUCH OTHER DUTIES AS MAY BE ASSIGNED" OR ITS
EQUIVALENT IS USED IN A
POSITION DESCRIPTION, THE TERM IS MUTUALLY UNDERSTOOD TO MEAN "TASKS
THAT ARE NORMALLY RELATED
TO THE POSITION AND ARE OF AN INCIDENTAL NATURE."
B. IT IS UNDERSTOOD THAT THE LANGUAGE OF (A) ABOVE DOES NOT PRECLUDE
THE EMPLOYER FROM
ASSIGNING UNRELATED WORK TO EMPLOYEES WHEN:
(1) A GENERAL PLANT CLEANUP IS REQUIRED;
(2) WORK AS DEFINED IN AN EMPLOYEE'S POSITION DESCRIPTION IS NOT
AVAILABLE.
ALSO SEE, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 53, AND
NAVY REGIONAL FINANCE CENTER, NORFOLK, VIRGINIA, FLRC NO. 73A-48
(FEBRUARY 28, 1974), REPORT NO. 49.
/13/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1966 AND
VETERANS ADMINISTRATION HOSPITAL, LEBANON, PENNSYLVANIA, FLRC NO. 72A-41
(DECEMBER 14, 1973), REPORT NO. 46.
/14/ SEE, LOCAL LODGE 2333, INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, AND WRIGHT-PATTERSON AIR FORCE BASE, OHIO, FLRC
NO. 74A-2 (DECEMBER 16, 1974), REPORT NO. 60, AT PART 2 OF OPINION; AND
AFGE (NATIONAL BORDER PATROL COUNCIL AND NATIONAL COUNCIL OF IMMIGRATION
AND NATURALIZATION SERVICE LOCALS) AND IMMIGRATION AND NATURALIZATION
SERVICE, FLRC NO. 73A-25 (OCTOBER 15, 1974), REPORT NO. 57, AT PART 3 OF
OPINION; AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1966 AND
VETERANS ADMINISTRATION HOSPITAL, LEBANON, PENNSYLVANIA, FLRC NO. 72A-41
(DECEMBER 14, 1973), REPORT NO. 46, AT PART 3 OF OPINION.
3 FLRC 763; FLRC NO. 75A-88; NOVEMBER 26, 1975.
MR. THOMAS MARTIN
19626 1/2 SO. NORMANDIE
TORRANCE, CALIFORNIA 90502
(SYNOPSIS) FLRC NO. 75A-88
DEPARTMENT OF THE NAVY AND U.S. CIVIL SERVICE COMMISSION AND FEDERAL
EMPLOYEES METAL TRADES COUNCIL, LONG BEACH, CALIFORNIA, A/SLMR NO. 529.
THE ASSISTANT SECRETARY DISMISSED A COMPLAINT FILED BY THE FEDERAL
EMPLOYEES METAL TRADES COUNCIL, LONG BEACH, CALIFORNIA, WHICH ALLEGED
THAT THE DEPARTMENT OF THE NAVY AND THE U.S. CIVIL SERVICE COMMISSION
HAD VIOLATED SECTION 19(A)(1), (2) AND (6) OF THE ORDER, BASED ON THE
ASSERTED CONDUCT OF AN EQUAL EMPLOYMENT OPPORTUNITY (EEO) COMPLAINTS
EXAMINER WHO WAS APPOINTED BY THE CSC AT THE REQUEST OF THE SHIPYARD TO
HEAR AN EEO COMPLAINT OF A SHIPYARD EMPLOYEE. THE UNION APPEALED TO THE
COUNCIL, ASSERTING THAT THE ASSISTANT SECRETARY'S DECISION WAS ARBITRARY
AND CAPRICIOUS AND RAISED MAJOR POLICY ISSUES.
COUNCIL ACTION /1/ (NOVEMBER 26, 1975). THE COUNCIL HELD THAT THE
UNION'S PETITION FOR REVIEW DID NOT MEET THE REQUIREMENTS OF SECTION
2411.12 OF THE COUNCIL'S RULES; THAT IS, THE DECISION OF THE ASSISTANT
SECRETARY DOES NOT APPEAR ARBITRARY AND CAPRICIOUS, OR PRESENT A MAJOR
POLICY ISSUE. ACCORDINGLY, THE COUNCIL DENIED THE UNION'S PETITION FOR
REVIEW.
DEAR MR. MARTIN:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION, AND THE U.S. CIVIL SERVICE COMMISSION'S
OPPOSITION THERETO, IN THE ABOVE-ENTITLED CASE.
IN THIS CASE THE FEDERAL EMPLOYEES METAL TRADES COUNCIL, LONG BEACH,
CALIFORNIA (THE UNION), FILED A COMPLAINT AGAINST THE DEPARTMENT OF THE
NAVY (NAVY) AND THE U.S. CIVIL SERVICE COMMISSION (CSC) ASSERTING
VIOLATIONS OF SECTION 19(A)(1), (2) AND (6) OF THE ORDER. THE COMPLAINT
WAS BASED UPON THE ASSERTED CONDUCT OF AN EQUAL EMPLOYMENT OPPORTUNITY
(EEO) COMPLAINTS EXAMINER APPOINTED BY THE CSC AT THE REQUEST OF THE
LONG BEACH NAVAL SHIPYARD (SHIPYARD) TO HEAR AN EEO COMPLAINT FILED BY
AN EMPLOYEE OF THE SHIPYARD. A UNION STEWARD APPEARED AT THE REQUEST
OF, AND AS THE PERSONAL REPRESENTATIVE FOR, THE EMPLOYEE MAKING THE
COMPLAINT. THE ATTENDANCE OF THIS UNION OFFICIAL AT THE HEARING IN HIS
CAPACITY AS A PERSONAL REPRESENTATIVE OF THE COMPLAINANT WAS NOT
CHALLENGED AND IS NOT AT ISSUE IN THIS CASE. THE COMPLAINT ALLEGED THAT
THE EEO COMPLAINTS EXAMINER'S ACTION IN REFUSING TO ALLOW ANOTHER
OFFICIAL OF THE UNION TO ATTEND THE HEARING AS AN OBSERVER CONTRAVENED
THE UNION'S RIGHTS AS AN EXCLUSIVE REPRESENTATIVE UNDER SECTION 10(E) OF
THE ORDER.
THE ASSISTANT SECRETARY FOUND, IN PERTINENT PART, THAT UNDER THE
PARTICULAR CIRCUMSTANCES OF THIS CASE, THE CSC OWED NO OBLIGATION TO
MEET AND CONFER WITH THE UNION UNDER SECTION 11(A) OF THE ORDER, AND
THAT ITS CONDUCT WAS NOT IN DEROGATION OF THE EXCLUSIVE BARGAINING
RELATIONSHIP BETWEEN THE SHIPYARD AND THE UNION. HE NOTED PARTICULARLY,
IN THIS REGARD, THAT THE CSC WAS ACTING UNDER AUTHORITY GRANTED BY
VARIOUS STATUTES AND EXECUTIVE ORDERS RELATING TO EEO MATTERS AND
PURSUANT TO PART 713 OF THE FEDERAL PERSONNEL MANUAL, WHICH WAS
PROMULGATED BY THE CSC TO IMPLEMENT AND EFFECTUATE SUCH STATUTES AND
EXECUTIVE ORDERS; AND, FURTHER, THAT NEITHER THE CSC NOR ITS COMPLAINTS
EXAMINER WAS SUBJECT TO THE JURISDICTION OR AUTHORITY OF EITHER THE NAVY
OR THE SHIPYARD. ACCORDINGLY, HE FOUND THAT, UNDER THE PARTICULAR
CIRCUMSTANCES OF THE INSTANT CASE, THE CSC DID NOT MEET THE DEFINITION
OF "AGENCY MANAGEMENT" SET FORTH IN SECTION 2(F) OF THE ORDER. THE
ASSISTANT SECRETARY ADDITIONALLY ADOPTED THE FINDING OF THE
ADMINISTRATIVE LAW JUDGE THAT THE NAVY HAD NOT VIOLATED THE ORDER.
IN YOUR PETITION FOR REVIEW YOU ASSERT THAT THE ASSISTANT SECRETARY'S
DECISION IS ARBITRARY AND CAPRICIOUS AND THAT IT RAISES MAJOR POLICY
ISSUES "AFFECTING THE RIGHTS AND DUTIES OF COMPLAINANT UNDER EXECUTIVE
ORDER 11491, AS AMENDED." YOU CONTEND, IN SUBSTANCE, THAT THE EEO
HEARING IN QUESTION WAS A "FORMAL DISCUSSION" BETWEEN AGENCY MANAGEMENT
AND AN EMPLOYEE WITHIN THE MEANING OF SECTION 10(E); THAT THE ACTION OF
THE COMPLAINTS EXAMINER IN EJECTING THE UNION'S DESIGNATED OBSERVER FROM
THE EEO HEARING THEREFORE VIOLATED SECTION 19(A)(1), (2) AND (6); AND,
THAT THE CSC WAS RESPONSIBLE FOR THE EXAMINER'S ALLEGED WRONGFUL CONDUCT
IN THIS REGARD UNDER THE GENERAL RULES OF AGENCY AND BECAUSE, PURSUANT
TO SECTION 1(A), THE CSC'S AGENCY HEAD WAS OBLIGATED TO TAKE POSITIVE
ACTION TO ASSURE THAT CSC EMPLOYEES REFRAINED FROM CONDUCT WHICH WOULD
ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION AND FAILED TO
DO SO IN THIS INSTANCE. YOU ALSO ASSERT THAT THE CSC REGULATIONS
CONCERNING THE CONDUCT OF EEO HEARINGS IN EFFECT AT THE TIME OF THE
HEARING IN THIS CASE WERE, IN THEMSELVES, DISCRIMINATORY IN THAT THEY
GAVE THE COMPLAINTS EXAMINER THE OPTION TO ALLOW A UNION OBSERVER TO BE
PRESENT ONLY WHERE THERE HAD BEEN PRIOR AGREEMENT TO PERMIT SUCH AN
OBSERVER BETWEEN THE PARTIES TO THE COMPLAINT.
SIMILARLY, WITH RESPECT TO THE NAVY, YOU CONTEND THAT THE EXAMINER
WAS SERVING IN A DUAL CAPACITY AS AN EMPLOYEE OF THE CSC AND AS AN AGENT
OF THE NAVY-- IN THAT THE NAVY INITIATED THE PROCEEDING AND WAS
RESPONSIBLE FOR PAYING THE CSC FOR THE EXAMINER'S SERVICES-- AND
THEREFORE, THAT THE NAVY WAS AS RESPONSIBLE AS THE CSC FOR THE
EXAMINER'S CONDUCT.
IN THE COUNCIL'S VIEW, YOUR PETITION FOR REVIEW DOES NOT MEET THE
REQUIREMENTS OF SECTION 2411.12 OF THE COUNCIL'S RULES; THAT IS, THE
DECISION OF THE ASSISTANT SECRETARY DOES NOT APPEAR ARBITRARY AND
CAPRICIOUS, NOR DOES IT PRESENT A MAJOR POLICY ISSUE.
WITH REGARD TO YOUR CONTENTION THAT THE ASSISTANT SECRETARY'S
DECISION IS ARBITRARY AND CAPRICIOUS, IT DOES NOT APPEAR THAT THE
ASSISTANT SECRETARY ACTED WITHOUT REASONABLE JUSTIFICATION IN HIS
DECISION. FURTHER, AS TO YOUR CONTENTION THAT THE EEO HEARING WAS A
"FORMAL DISCUSSION" WITHIN THE MEANING OF SECTION 10(E) AND THAT THE CSC
WAS, AS A RESULT OF THE CONDUCT OF THE COMPLAINTS EXAMINER, IN VIOLATION
OF SECTION 19(A)(1), (2) AND (6) OF THE ORDER, THE COUNCIL FINDS--
NOTING PARTICULARLY THAT THE CSC WAS ACTING UNDER AUTHORITY GRANTED BY
VARIOUS STATUTES AND EXECUTIVE ORDERS RELATING TO EEO MATTERS AND
PURSUANT TO PART 713 OF THE FEDERAL PERSONNEL MANUAL PROMULGATED TO
IMPLEMENT SUCH STATUTES AND ORDERS-- THAT THE ASSISTANT SECRETARY'S
CONCLUSION (THAT UNDER THE PARTICULAR CIRCUMSTANCES OF THIS CASE THE CSC
DID NOT MEET THE DEFINITION OF "AGENCY MANAGEMENT" SET FORTH IN SECTION
2(F) OF THE ORDER) DOES NOT RAISE A MAJOR POLICY ISSUE. SIMILARLY, WITH
REGARD TO YOUR CONTENTION THAT THE NAVY, HAVING CONTRACTED AND PAID FOR
THE EXAMINER'S SERVICES, WAS IN VIOLATION OF THE ORDER AS A RESULT OF
THE EXAMINER'S CONDUCT, THE COUNCIL IS OF THE OPINION, NOTING AGAIN AS
ABOVE THAT THE PROCEEDING CONCERNED WAS CONVENED PURSUANT TO REGULATIONS
PROMULGATED TO IMPLEMENT VARIOUS STATUTES AND EXECUTIVE ORDERS RELATING
TO EEO MATTERS, THAT NO MAJOR POLICY ISSUES ARE PRESENTED WHICH WARRANT
REVIEW IN THE PARTICULAR CIRCUMSTANCES OF THIS CASE.
SINCE THE DECISION OF THE ASSISTANT SECRETARY DOES NOT APPEAR
ARBITRARY AND CAPRICIOUS AND DOES NOT PRESENT A MAJOR POLICY ISSUE, YOUR
APPEAL FAILS TO MEET THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION
2411.12 OF THE COUNCIL'S RULES. ACCORDINGLY, YOUR PETITION FOR REVIEW
IS DENIED.
BY THE COUNCIL. /1/
CC: A/SLMR
DEPT. OF LABOR
L. ARONIN
CSC
S. M. FOSS
NAVY
/1/ THE CHAIRMAN OF THE CIVIL SERVICE COMMISSION DID NOT PARTICIPATE
IN THIS DECISION.
3 FLRC 760; FLRC NO. 75A-86; NOVEMBER 19, 1975.
MS. G. NANCY MCALENEY, PRESIDENT
LOCAL 225, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
BUILDING 1610, PICATINNY ARSENAL
DOVER, NEW JERSEY 07801
(SYNOPSIS) FLRC NO. 75A-86
DEPARTMENT OF THE ARMY, PICATINNY ARSENAL, DOVER, NEW JERSEY, A/SLMR
NO. 532. THE ASSISTANT SECRETARY AFFIRMED THE RECOMMENDATION OF THE
ADMINISTRATIVE LAW JUDGE (ALJ) THAT THE COMPLAINT FILED BY LOCAL 225,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, ALLEGING THE
ACTIVITY VIOLATED SECTION 19(A)(1) AND (4) OF THE ORDER, BE DISMISSED.
IN SO RULING, THE ASSISTANT SECRETARY REJECTED THE UNION'S CONTENTION
THAT ITS RIGHT TO A FAIR AND IMPARTIAL HEARING WAS IMPAIRED BY REASON OF
THE ASSIGNMENT OF THE PARTICULAR ALJ TO THIS CASE. THE UNION APPEALED
TO THE COUNCIL, CONTENDING THAT THE ASSISTANT SECRETARY'S DECISION
PRESENTS A MAJOR POLICY ISSUE.
COUNCIL ACTION (NOVEMBER 19, 1975). THE COUNCIL HELD THAT THE
UNION'S PETITION FOR REVIEW DID NOT MEET THE REQUIREMENTS OF SECTION
2411.12 OF THE COUNCIL'S RULES; THAT IS, THE DECISION OF THE ASSISTANT
SECRETARY DOES NOT PRESENT A MAJOR POLICY ISSUE AND THE UNION DOES NOT
ALLEGE, NOR DOES IT APPEAR, THAT HIS DECISION WAS ARBITRARY AND
CAPRICIOUS. ACCORDINGLY, THE COUNCIL DENIED THE UNION'S PETITION FOR
REVIEW.
DEAR MS. MCALENEY:
THE COUNCIL HAS CAREFULLY CONSIDERED THE UNION'S PETITION FOR REVIEW
OF THE ASSISTANT SECRETARY'S DECISION, AND THE AGENCY'S OPPOSITION
THERETO, IN THE ABOVE-ENTITLED CASE.
IN A PREVIOUS CASE INVOLVING THE SAME PARTIES, LOCAL 225, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (THE UNION), FILED A
COMPLAINT ALLEGING THAT THE DEPARTMENT OF THE ARMY, PICATINNY ARSENAL,
DOVER, NEW JERSEY (THE ACTIVITY), VIOLATED SECTION 19(A)(1) AND (2) OF
THE ORDER BY A SUPERVISOR'S DISCRIMINATORY HANDLING OF AN EMPLOYEE'S
REQUEST FOR TRAINING UNDER THE UPWARD MOBILITY PROGRAM. THE
ADMINISTRATIVE LAW JUDGE (ALJ) RECOMMENDED THAT THE COMPLAINT BE
DISMISSED. THE UNION APPEALED THE CASE TO THE ASSISTANT SECRETARY WHO
SUBSEQUENTLY AFFIRMED THE DISMISSAL OF THE 19(A)(2) ALLEGATION, BUT
REVERSED AS TO THE 19(A)(1) VIOLATION, AND ISSUED A REMEDIAL ORDER
(A/SLMR NO. 512).
WHILE THAT PRIOR CASE WAS ON APPEAL TO THE ASSISTANT SECRETARY, AND
YET UNDECIDED BY HIM, THE SAME ALJ HEARD AND RECOMMENDED DISMISSAL OF
THE COMPLAINT LEADING TO THE PRESENT APPEAL BEFORE THE COUNCIL. IN THIS
COMPLAINT, THE UNION ALLEGED THAT THE ACTIVITY VIOLATED SECTION 19(A)(1)
AND (4) OF THE ORDER BY THE SAME SUPERVISOR'S HANDLING OF THE SAME
EMPLOYEE'S SUBSEQUENT REQUEST FOR ADDITIONAL TRAINING. THE ALJ'S
RECOMMENDATION THAT THIS COMPLAINT BE DISMISSED WAS AFFIRMED BY THE
ASSISTANT SECRETARY IN ITS ENTIRETY (A/SLMR NO. 532). IN SO RULING, THE
ASSISTANT SECRETARY REJECTED THE UNION'S EXCEPTION THAT ITS RIGHT TO A
FAIR AND IMPARTIAL HEARING WAS IMPAIRED BY THE ASSIGNMENT HEREIN OF THE
SAME ALJ WHO HAD HEARD THE PREVIOUS CASE INVOLVING THE SAME PARTIES
WHILE THAT CASE WAS STILL PENDING FOR REVIEW BEFORE THE ASSISTANT
SECRETARY, NOTING PARTICULARLY " . . . THE (UNION'S) FAILURE TO RAISE
SUCH OBJECTION AT THE HEARING AND, THUS, AFFORDING THE ADMINISTRATIVE
LAW JUDGE THE OPPORTUNITY TO WITHDRAW IF HE CONSIDERED SUCH ACTION
NECESSARY, AND THE LACK OF ANY RECORD EVIDENCE THAT A FAIR AND IMPARTIAL
HEARING WAS NOT CONDUCTED IN THIS MATTER . . . " THE UNION THEN
PETITIONED THE COUNCIL FOR REVIEW OF THE ASSISTANT SECRETARY'S DECISION.
IN YOUR PETITION FOR REVIEW FILED ON BEHALF OF THE UNION, YOU CONTEND
THAT THE ASSISTANT SECRETARY'S DECISION PRESENTS A MAJOR POLICY ISSUE
WITH REGARD TO " . . . WHETHER AN ADMINISTRATIVE LAW JUDGE SHOULD BE
ASSIGNED TO HEAR A CASE INVOLVING TWO PARTIES WHO WERE INVOLVED IN A
PREVIOUS CASE BEFORE THE SAME ALJ ON A SIMILAR ISSUE WHILE THE PREVIOUS
CASE (IS) STILL UNDER APPEAL TO THE ASSISTANT SECRETARY." IN THIS
REGARD, YOU ASSERT THAT THE UNION DID IN FACT TAKE ISSUE WITH THE
ASSIGNMENT OF THE SAME JUDGE TO THE SECOND COMPLAINT. MOREOVER, YOU
CONTEND THAT THERE IS EVIDENCE THAT SUCH AN ASSIGNMENT IN THIS CASE
PREVENTED A FAIR AND IMPARTIAL HEARING.
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW DOES NOT MEET THE
REQUIREMENTS OF SECTION 2411.12 OF THE COUNCIL'S RULES; THAT IS, THE
DECISION OF THE ASSISTANT SECRETARY DOES NOT PRESENT A MAJOR POLICY
ISSUE, AND YOU DO NOT ALLEGE, NOR DOES IT APPEAR, THAT HIS DECISION WAS
ARBITRARY AND CAPRICIOUS. WITH RESPECT TO THE ALLEGED MAJOR POLICY
ISSUE, IN THE COUNCIL'S VIEW AND WITHOUT PASSING ON THE TIMELINESS OF
YOUR OBJECTION, THE ASSIGNMENT OF THE SAME ALJ TO HEAR A CASE INVOLVING
THE SAME PARTIES WHO WERE INVOLVED IN A PREVIOUS CASE ON A SIMILAR ISSUE
WHILE THE PREVIOUS CASE IS STILL UNDER APPEAL TO THE ASSISTANT SECRETARY
DOES NOT RAISE A MAJOR POLICY ISSUE WARRANTING REVIEW. MOREOVER, YOUR
PETITION FOR REVIEW PRESENTS NO PERSUASIVE BASIS TO SUPPORT THE
CONTENTION THAT THE ASSIGNMENT OF THE SAME ALJ PREVENTED A FAIR AND
IMPARTIAL HEARING.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT PRESENT A MAJOR
POLICY ISSUE, AND YOU NEITHER ALLEGE, NOR DOES IT APPEAR, THAT HIS
DECISION IS ARBITRARY AND CAPRICIOUS, YOUR APPEAL FAILS TO MEET THE
REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.12 OF THE COUNCIL'S
RULES. ACCORDINGLY, YOUR PETITION FOR REVIEW IS HEREBY DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
D. A. DRESSER
DEPT. OF ARMY
3 FLRC 756; FLRC NO. 75A-89; NOVEMBER 18, 1975.
MS. LISA RENEE STRAX, LEGAL DEPARTMENT
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
1737 H STREET, NW.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 75A-89
DEPARTMENT OF THE AIR FORCE, 4392D AEROSPACE SUPPORT GROUP,
VANDENBERG AIR FORCE BASE, CALIFORNIA, A/SLMR NO. 537. THE ASSISTANT
SECRETARY DISMISSED THE COMPLAINTS RESPECTIVELY FILED BY MARIE BROGAN,
PRESIDENT OF LOCAL 1001, NATIONAL FEDERATION OF FEDERAL EMPLOYEES
(NFFE), WHICH ALLEGED THAT THE ACTIVITY VIOLATED SECTION 19(A)(1) AND
(6) OF THE ORDER, AND BY NFFE, WHICH ALLEGED THAT THE ACTIVITY VIOLATED
SECTION 19(A)(1), (2) AND (4) OF THE ORDER. NFFE APPEALED TO THE
COUNCIL, CONTENDING THAT THE DECISION OF THE ASSISTANT SECRETARY IS
ARBITRARY AND CAPRICIOUS AND PRESENTS MAJOR POLICY ISSUES.
COUNCIL ACTION (NOVEMBER 18, 1975). THE COUNCIL HELD THAT NFFE'S
PETITION FOR REVIEW DID NOT MEET THE REQUIREMENTS OF SECTION 2411.12 OF
THE COUNCIL'S RULES; THAT IS, THE DECISION OF THE ASSISTANT SECRETARY
DOES NOT APPEAR IN ANY MANNER ARBITRARY AND CAPRICIOUS OR PRESENT ANY
MAJOR POLICY ISSUES. ACCORDINGLY, THE COUNCIL DENIED REVIEW OF NFFE'S
APPEAL.
DEAR MS. STRAX:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW IN THE
ABOVE-ENTITLED CASE.
THIS CASE AROSE UPON THE FILING OF SEPARATE UNFAIR LABOR PRACTICE
COMPLAINTS BY MARIE BROGAN, PRESIDENT OF LOCAL 1001, NATIONAL FEDERATION
OF FEDERAL EMPLOYEES (NFFE) AND BY NFFE. BROGAN'S COMPLAINT ALLEGED
THAT THE DEPARTMENT OF THE AIR FORCE, 4392D AEROSPACE SUPPORT GROUP,
VANDENBERG AIR FORCE BASE, CALIFORNIA (THE ACTIVITY) VIOLATED SECTION
19(A)(1) AND (6) OF THE ORDER. SUCH ALLEGATION WAS BASED UPON
STATEMENTS PURPORTEDLY MADE BY THE CHIEF OF BASE PROCUREMENT, AT A
MEETING HELD TO DISCUSS BROGAN'S EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT,
THAT SOME ACTION SHOULD BE TAKEN BY AN ARBITRATOR WHO COULD STOP BROGAN
FROM FILING CHARGES AGAINST THE ACTIVITY. NFFE'S COMPLAINT ALLEGED THAT
THE ACTIVITY VIOLATED SECTION 19(A)(1), (2) AND (4) OF THE ORDER BY
DETAILING AND THEN PERMANENTLY REASSIGNING BROGAN TO ANOTHER POSITION
BECAUSE SHE HAD FILED COMPLAINTS AGAINST THE ACTIVITY. IT WAS FURTHER
ALLEGED THAT THE REASSIGNMENT WAS TO A POSITION WITH NO POSSIBILITY OF
PROMOTION AND WHICH WAS VULNERABLE TO A REDUCTION-IN-FORCE.
THE ASSISTANT SECRETARY, IN ADOPTING THE FINDINGS OF THE
ADMINISTRATIVE LAW JUDGE (ALJ), FOUND THAT THE STATEMENTS MADE BY THE
CHIEF OF BASE PROCUREMENT WERE NOT VIOLATIVE OF SECTION 19(A)(1) AND (6)
OF THE ORDER. THE ASSISTANT SECRETARY ALSO FOUND THAT THE DETAILING AND
PERMANENT REASSIGNMENT OF BROGAN WERE NOT VIOLATIVE OF SECTION 19(A)(1),
(2) AND (4) OF THE ORDER. THE ASSISTANT SECRETARY NOTED, IN THIS LATTER
REGARD, THAT BROGAN'S SUBSTANDARD WORK PERFORMANCE, WHICH INCLUDED
SUBSTANTIAL DELAYS IN HER COMPLETION OF ASSIGNED WORK, REPEATED
TARDINESS FOR WORK, AND, CONTRARY TO HER SUPERVISORS' REQUESTS, LEAVING
HER OFFICE TO ATTEND TO UNION ACTIVITIES OR OTHER MATTERS WITHOUT
INFORMING THEM, WAS THE MOTIVATING FACTOR IN HER REASSIGNMENT AND NOT
ANTI-UNION ANIMUS. HE FURTHER FOUND THAT THERE HAD BEEN NO SHOWING THAT
THE REASSIGNMENT WOULD PREVENT BROGAN FROM BEING CONSIDERED FOR
PROMOTION OR WOULD MAKE HER MORE VULNERABLE TO A REDUCTION-IN-FORCE, OR
THAT SHE WAS UNQUALIFIED TO HANDLE THE NEW JOB. MOREOVER, THE ASSISTANT
SECRETARY FOUND THAT THE EVIDENCE ESTABLISHED THAT THE REASSIGNMENT WAS
NOT MOTIVATED BY ANTI-UNION ANIMUS; RATHER, THE TRANSFER WOULD ALLOW
BROGAN MORE TIME TO DEVOTE TO UNION REPRESENTATIONAL DUTIES WITHOUT
DISRUPTION OF HER JOB PERFORMANCE, SINCE THE NEW POSITION WAS LESS
DEMANDING THAN THE ONE FORMERLY HELD. ACCORDINGLY, THE ASSISTANT
SECRETARY DISMISSED BOTH COMPLAINTS.
IN YOUR PETITION FOR REVIEW, YOU CONTEND THAT THE ASSISTANT
SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS BECAUSE HE RELIED ON
THE ALJ'S ERRONEOUS DECISION AND ORDER WHICH WAS CONTRARY TO THE
EVIDENCE PRESENTED AND TO PRIVATE SECTOR LAW. YOU ALSO CONTEND THAT THE
ASSISTANT SECRETARY'S DECISION WAS CONTRARY TO PREVIOUS ASSISTANT
SECRETARY DECISIONS IN WHICH HE FOUND CONDUCT SIMILAR TO THAT ALLEGED IN
THE PRESENT COMPLAINT TO BE VIOLATIVE OF THE ORDER. YOU FURTHER ASSERT
THAT THE ASSISTANT SECRETARY'S DECISION PRESENTS MAJOR POLICY ISSUES AS
TO "WHETHER THE LEGITIMATE EXERCISE OF MANAGEMENT RIGHTS INCLUDES THE
COMPILATION AND MAINTENANCE OF A SPECIAL PERSONNEL FOLDER ON THE
PRESIDENT OF A UNION LOCAL OR THE REQUIREMENT THAT SHE NOTIFY HER
SUPERVISOR EACH TIME SHE DESIRES TO LEAVE THE OFFICE TO ATTEND TO UNION
MATTERS"; "WHETHER THE CONDUCT ON THE PART OF MANAGEMENT IN THIS CASE
AMOUNTS TO A RESTRAINING INFLUENCE HAVING A 'CHILLING EFFECT' UPON THE
EMPLOYEES' EXERCISE OF THE RIGHTS ASSURED THEM" BY THE ORDER; "WHETHER
THE ASSISTANT SECRETARY WAS CORRECT IN FOLLOWING THE ALJ'S PRESUMPTION
THAT 'MANAGEMENT IS EXERCISING A LEGAL RIGHT WHEN IT AFFECTS THE STATUS
OF AN EMPLOYEE'"; AND "WHETHER THE CONDITIONS UNDER WHICH MARIE BROGAN
WORKED CAN BE ALTERED AS A RESULT OF HER EXERCISING PREROGATIVES
BARGAINED-FOR IN THE NEGOTIATED AGREEMENT."
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW DOES NOT MEET THE
REQUIREMENTS OF SECTION 2411.12 OF THE COUNCIL'S RULES. THAT IS, THE
DECISION OF THE ASSISTANT SECRETARY DOES NOT APPEAR IN ANY MANNER
ARBITRARY AND CAPRICIOUS OR PRESENT ANY MAJOR POLICY ISSUES. AS TO YOUR
CONTENTION THAT THE ASSISTANT SECRETARY'S DECISION IS ARBITRARY AND
CAPRICIOUS, IT DOES NOT APPEAR IN THE CIRCUMSTANCES OF THIS CASE THAT
THE ASSISTANT SECRETARY ACTED WITHOUT REASONABLE JUSTIFICATION IN
REACHING HIS DECISION. IN THIS CONNECTION, YOUR APPEAL NEITHER
DISCLOSES ANY PROBATIVE EVIDENCE PRESENTED, WHICH THE ASSISTANT
SECRETARY FAILED TO CONSIDER, NOR ESTABLISHES THAT SUCH DECISION IS
INCONSISTENT WITH HIS PREVIOUSLY PUBLISHED DECISIONS. FURTHERMORE, NO
BASIS IS PRESENTED FOR COUNCIL REVIEW WITH RESPECT TO YOUR CONTENTION
THAT THE ASSISTANT SECRETARY IMPROPERLY RELIED ON THE ALJ'S DECISION AND
ORDER WHICH WAS ALLEGEDLY CONTRARY TO PRIVATE SECTOR LAW, NOTING
PARTICULARLY THAT THE ASSISTANT SECRETARY DID NOT CITE OR SPECIFICALLY
RELY ON PRIVATE SECTOR LAW IN REACHING HIS DECISION.
AS TO YOUR CONTENTIONS WITH RESPECT TO WHETHER THE CONDUCT OF
MANAGEMENT CREATED A "CHILLING EFFECT" ON PROTECTED EMPLOYEE RIGHTS OR
OTHERWISE CONSTITUTED A VIOLATION OF THE ORDER, SUCH ASSERTIONS
CONSTITUTE, IN EFFECT, NOTHING MORE THAN DISAGREEMENT WITH THE ASSISTANT
SECRETARY'S CONCLUSION THAT THE FACTS PRESENTED DID NOT CONSTITUTE A
VIOLATION OF THE ORDER. SUCH CONTENTIONS, IN THE FACTS OF THE CASE,
THEREFORE DO NOT PRESENT A MAJOR POLICY ISSUE WARRANTING REVIEW. NOR IS
A MAJOR POLICY ISSUE PRESENTED WITH RESPECT TO YOUR CONTENTION THAT THE
ASSISTANT SECRETARY ERRONEOUSLY FOLLOWED THE ALJ'S APPLICATION OF THE
"PRESUMPTION" THAT "MANAGEMENT IS EXERCISING A LEGAL RIGHT WHEN IT
AFFECTS THE STATUS OF AN EMPLOYEE" BY RESTRICTING UNION ACTIVITIES OF A
UNION REPRESENTATIVE DURING WORK HOURS. IT SHOULD BE NOTED IN THIS
REGARD THAT THE ASSISTANT SECRETARY DID NOT RELY ON SUCH A PRESUMPTION
IN REACHING HIS DECISION, BUT MERELY DETERMINED THAT BROGAN'S
SUBSTANDARD WORK PERFORMANCE AND NOT ANTI-UNION ANIMUS WAS THE
MOTIVATING FACTOR IN HER REASSIGNMENT. SIMILARLY, AS TO YOUR CONTENTION
THAT THE CONDITIONS UNDER WHICH BROGAN WORKED WERE ILLEGALLY ALTERED AS
A RESULT OF HER EXERCISE OF HER RIGHT UNDER THE PARTIES' NEGOTIATED
AGREEMENT, THE ASSISTANT SECRETARY DETERMINED, ON THE FACTS PRESENTED,
THAT "BROGAN'S WORK PERFORMANCE WAS SUBSTANDARD AND THAT THIS WAS THE
FACTOR WHICH WAS DETERMINATIVE IN MAKING HER REASSIGNMENT." AS STATED
EARLIER, YOUR DISAGREEMENT WITH THE ASSISTANT SECRETARY'S FINDINGS IN
THIS REGARD DOES NOT PRESENT A MAJOR POLICY ISSUE WARRANTING COUNCIL
REVIEW.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS AND DOES NOT PRESENT ANY MAJOR POLICY ISSUES, YOUR APPEAL
FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED UNDER SECTION
2411.12 OF THE COUNCIL'S RULES OF PROCEDURE. ACCORDINGLY, REVIEW OF
YOUR APPEAL IS HEREBY DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
F. SPRAGUE
AIR FORCE
3 FLRC 752; FLRC NO. 75A-82; NOVEMBER 18, 1975.
MS. LISA RENEE STRAX, LEGAL DEPARTMENT
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
1737 H STREET, NW.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 75A-82
U.S. AIR FORCE, HEADQUARTERS, 31ST COMBAT SUPPORT GROUP (TAC),
HOMESTEAD AIR FORCE BASE, FLORIDA, ASSISTANT SECRETARY CASE NO. 42-2649
(CA). THE ASSISTANT SECRETARY, IN AGREEMENT WITH THE ASSISTANT REGIONAL
DIRECTOR, FOUND THAT FURTHER PROCEEDINGS ON THE COMPLAINT OF LOCAL 1167,
NATIONAL FEDERATION OF FEDERAL EMPLOYEES (NFFE), WHICH ALLEGED THAT THE
ACTIVITY VIOLATED SECTION 19(A)(1), (2), (5) AND (6) OF THE ORDER, WERE
NOT WARRANTED, AS A REASONABLE BASIS FOR THE COMPLAINT HAD NOT BEEN
ESTABLISHED. THE ASSISTANT SECRETARY ALSO REJECTED A PROCEDURAL CLAIM
BY NFFE, FINDING NO PREJUDICE HAD RESULTED TO THE UNION. NFFE APPEALED
TO THE COUNCIL, CONTENDING THAT THE DECISION OF THE ASSISTANT SECRETARY
PRESENTS MAJOR POLICY ISSUES.
COUNCIL ACTION (NOVEMBER 18, 1975). THE COUNCIL HELD THAT NFFE'S
PETITION FOR REVIEW DID NOT MEET THE REQUIREMENTS OF SECTION 2411.12 OF
THE COUNCIL'S RULES; THAT IS, THE DECISION OF THE ASSISTANT SECRETARY
DOES NOT PRESENT MAJOR POLICY ISSUES AND NFFE NEITHER ALLEGES, NOR DOES
IT APPEAR, THAT HIS DECISION IS ARBITRARY AND CAPRICIOUS. ACCORDINGLY,
THE COUNCIL DENIED REVIEW OF NFFE'S PETITION.
DEAR MS. STRAX:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
IN THIS CASE YOU FILED, ON BEHALF OF LOCAL 1167 OF THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES (THE UNION) AN UNFAIR LABOR PRACTICE
COMPLAINT AGAINST HEADQUARTERS, 31ST COMBAT SUPPORT GROUP (TAC),
HOMESTEAD AIR FORCE BASE, FLORIDA (THE ACTIVITY) ALLEGING VIOLATIONS OF
SECTION 19(A)(1), (2), (5) AND (6) OF THE ORDER.
IN MAY 1974, AN EMPLOYEE OF THE ACTIVITY INVOKED THE GRIEVANCE
PROCEDURE NEGOTIATED BY THE ACTIVITY AND THE UNION BY FILING AN ORAL
GRIEVANCE. AT THE SECOND STEP OF THE PROCEDURE THE ACTIVITY CONTENDED
THAT THE GRIEVANCE CONCERNED THE VIOLATION OF AN AGENCY REGULATION AND
THAT ITS RESOLUTION THROUGH THE NEGOTIATED GRIEVANCE PROCEDURE WOULD
VIOLATE THE PARTIES' AGREEMENT WHICH PRECLUDED THE USE OF THE NEGOTIATED
GRIEVANCE PROCEDURE TO RESOLVE QUESTIONS INVOLVING INTERPRETATION OF
AGENCY REGULATIONS. THE UNION RESPONDED THAT THE GRIEVANCE INVOLVED THE
APPLICATION, NOT THE INTERPRETATION OF THE REGULATION, AND HENCE THE
NEGOTIATED PROCEDURE WAS APPLICABLE. THE ACTIVITY MAINTAINED ITS
POSITION AND ADVISED THAT THE UNION COULD EITHER UTILIZE THE AGENCY
PROCEDURE OR PETITION THE ASSISTANT SECRETARY FOR A GRIEVABILITY
DETERMINATION. THE UNION THEN FILED AN UNFAIR LABOR PRACTICE COMPLAINT,
ALLEGING, IN ESSENCE, THAT THE ACTIVITY HAD REFUSED TO PROCEED WITH THE
RESOLUTION OF THE GRIEVANCE UNDER THE NEGOTIATED GRIEVANCE PROCEDURE AND
BY SO DOING IT HAD VIOLATED SECTION 19(A)(1), (2), (5) AND (6) OF THE
ORDER.
IN AGREEMENT WITH THE ASSISTANT REGIONAL DIRECTOR, THE ASSISTANT
SECRETARY FOUND THAT FURTHER PROCEEDINGS ON THE COMPLAINT WERE NOT
WARRANTED, AS A REASONABLE BASIS FOR THE COMPLAINT HAD NOT BEEN
ESTABLISHED. THE ASSISTANT SECRETARY STATED THAT "IN THE ABSENCE OF BAD
FAITH, GRIEVABILITY AND ARBITRABILITY QUESTIONS . . . ARE NOT MATTERS TO
BE RESOLVED UNDER SECTION 19 (UNFAIR LABOR PRACTICE PROCEDURES) OF THE
ORDER." POINTING OUT THAT SECTION 13(D) PROVIDES A PROCEDURE FOR THE
REFERRAL OF GRIEVABILITY AND ARBITRABILITY QUESTIONS, THE ASSISTANT
SECRETARY FURTHER STATED: "(A" PARTY MAY, IN GOOD FAITH, ASSERT THAT A
MATTER IS NOT GRIEVABLE OR ARBITRABLE UNDER A NEGOTIATED AGREEMENT.
THEREAFTER, PURSUANT TO PART 205 OF THE ASSISTANT SECRETARY'S
REGULATIONS, A DETERMINATION MAY BE OBTAINED FROM THE ASSISTANT
SECRETARY AS TO WHETHER THE MATTER INVOLVED IS GRIEVABLE OR ARBITRABLE."
NOTING THAT THERE WAS INSUFFICIENT EVIDENCE TO ESTABLISH "BAD FAITH" IN
THE INSTANT CASE, THE ASSISTANT SECRETARY CONCLUDED THAT DENIAL OF THE
UNION'S REQUEST FOR REVIEW WAS WARRANTED. THE ASSISTANT SECRETARY ALSO
REJECTED A PROCEDURAL CLAIM BY THE UNION, CONCLUDING THAT THERE WAS
INSUFFICIENT EVIDENCE TO ESTABLISH THAT THE UNION WAS PREJUDICED BY THE
ACTIVITY'S RECEIVING AN EXTENSION OF TIME IN WHICH TO ANSWER OR ITS
ALLEGED FAILURE BELOW TO SERVE THE UNION WITH A COPY OF THE REQUEST FOR
AN EXTENSION.
IN YOUR REQUEST FOR REVIEW YOU CONTEND THAT THE ASSISTANT SECRETARY'S
DECISION PRESENTS FOUR MAJOR POLICY ISSUES: (1) WHETHER THE PRESENCE OR
ABSENCE OF BAD FAITH IN THE INSTANT CASE SHOULD HAVE BEEN DETERMINED BY
A HEARING; (2) WHETHER THE PROPER ACTION FOR THE ACTIVITY IN THE
INSTANT CASE WOULD HAVE BEEN TO PETITION THE ASSISTANT SECRETARY FOR A
GRIEVABILITY DETERMINATION, REGARDLESS OF WHETHER IT HAD ACTED IN BAD
FAITH; (3) WHETHER THE ASSISTANT SECRETARY'S DECISION IN DEPARTMENT OF
DEFENSE, PUBLICATION CENTER, ST. LOUIS, MISSOURI, A/SLMR NO. 455, IS
APPLICABLE TO THE INSTANT CASE; AND (4) WHETHER THE TIME LIMITATIONS
SET FORTH IN THE ASSISTANT SECRETARY'S RULES AND REGULATIONS MAY BE
DISREGARDED IN THE ABSENCE OF CONVINCING AND COUNTERVAILING REASONS
THEREFOR.
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW OF THE ASSISTANT
SECRETARY'S DECISION DOES NOT MEET THE REQUIREMENTS OF SECTION 2411.12
OF THE COUNCIL'S RULES. THAT IS, HIS DECISION DOES NOT PRESENT MAJOR
POLICY ISSUES AND YOU NEITHER ALLEGE, NOR DOES IT APPEAR, THAT HIS
DECISION IS ARBITRARY AND CAPRICIOUS. AS TO THE ALLEGED MAJOR POLICY
ISSUE REGARDING THE NEED FOR A HEARING, IN THE COUNCIL'S VIEW, FOR THE
REASONS SET FORTH BY THE COUNCIL IN DEPARTMENT OF THE ARMY, INDIANA ARMY
AMMUNITION PLANT, CHARLESTON, INDIANA, A/SLMR NO. 50-11018 (CA), FLRC
NO. 74A-90 (MAY 9, 1975), REPORT NO. 69, NO MAJOR POLICY ISSUE
WARRANTING REVIEW IS PRESENTED. THE ASSISTANT SECRETARY'S DECISION IN
THIS CASE WAS BASED ON THE APPLICATION OF HIS REGULATIONS AND YOUR
PETITION PRESENTS NO PERSUASIVE REASON TO SHOW THAT THE ASSISTANT
SECRETARY WAS WITHOUT THE AUTHORITY TO ESTABLISH SUCH REGULATIONS OR
THAT HE WRONGLY APPLIED THE REGULATIONS TO THE FACTS AND CIRCUMSTANCES
OF THIS CASE. MOREOVER, YOUR APPEAL DOES NOT DEMONSTRATE THAT
SUBSTANTIAL FACTUAL ISSUES EXISTED REQUIRING A HEARING. AS TO THE
ALLEGED MAJOR POLICY ISSUE CONCERNING THE OBLIGATION OF THE ACTIVITY TO
FILE FOR A GRIEVABILITY DETERMINATION, IN THE COUNCIL'S VIEW, NOTING
THAT THE 1971 REPORT AND RECOMMENDATIONS ON THE AMENDMENT OF EXECUTIVE
ORDER 11491 INDICATED THAT SECTION 6(A)(5) IS INTENDED "TO PROVIDE FOR
THE RESOLUTION OF DISAGREEMENTS THAT MAY ARISE BETWEEN THE PARTIES AS TO
WHETHER A MATTER IS GRIEVABLE OR ARBITRABLE UNDER THE NEGOTIATED
PROCEDURE," NO MAJOR POLICY ISSUE WARRANTING REVIEW IS RAISED BY THE
ASSISTANT SECRETARY'S DETERMINATION THAT IN THE ABSENCE OF BAD FAITH,
GRIEVABILITY AND ARBITRABILITY QUESTIONS, SUCH AS THOSE INVOLVED IN YOUR
CASE, ARE NOT MATTERS TO BE RESOLVED UNDER SECTION 19, BUT RATHER AS
GRIEVABILITY AND ARBITRABILITY QUESTIONS. SEE ALSO U.S. DEPARTMENT OF
JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, WASHINGTON, D.C.,
A/SLMR NO. 22-3617 (CA), FLRC NO. 73A-8 (JULY 23, 1973), REPORT NO. 42.
AS REGARDS APPLICATION OF PUBLICATION CENTER, SUPRA, OR, AS YOU
SPECIFICALLY ALLEGE, THE MISAPPLICATION OF THAT DECISION, IN THE
COUNCIL'S VIEW, NO MAJOR POLICY ISSUE IS PRESENTED. IT SHOULD BE NOTED
THAT THE ASSISTANT SECRETARY DID NOT RELY ON PUBLICATION CENTER IN
DECIDING THE INSTANT CASE. AS REGARDS YOUR FOURTH ALLEGED MAJOR POLICY
ISSUE, IN THE COUNCIL'S VIEW, NOTING THAT THE ASSISTANT SECRETARY HAS
DETERMINED THAT THE UNION'S CASE WAS NOT PREJUDICED BY ACCEPTANCE OF THE
ACTIVITY'S PETITION AND NO EVIDENCE OF PREJUDICE IS PRESENTED IN YOUR
PETITION, NO MAJOR POLICY ISSUE WARRANTING REVIEW IS PRESENTED.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS AND DOES NOT PRESENT ANY MAJOR POLICY ISSUES, YOUR APPEAL
DOES NOT MEET THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.12
OF THE COUNCIL'S RULES. ACCORDINGLY, YOUR PETITION FOR REVIEW IS
DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
COL. D. L. STANFORD
AIR FORCE
3 FLRC 748; FLRC NO. 75A-79; NOVEMBER 18, 1975.
MR. VINCENT J. PATERNO, PRESIDENT
ASSOCIATION OF CIVILIAN TECHNICIANS
348A HUNGERFORD COURT
ROCKVILLE, MARYLAND 20850
(SYNOPSIS) FLRC NO. 75A-79
NEW YORK ARMY AND AIR NATIONAL GUARD, ALBANY, NEW YORK, A/SLMR NO.
441. THE ASSISTANT SECRETARY, UPON A COMPLAINT FILED BY THE ASSOCIATION
OF CIVILIAN TECHNICIANS (ACT), FOUND THAT THE ACTIVITY VIOLATED SECTION
19(A)(1) AND (6) OF THE ORDER, AND ORDERED THE ACTIVITY TO CEASE AND
DESIST FROM, AMONG OTHER THINGS, REFUSING TO MEET AND CONFER WITH ACT
REGARDING EXCEPTIONS TO A REGULATORY REQUIREMENT THAT UNIFORMS BE WORN
BY TECHNICIANS. THEREAFTER, UPON ADVICE THAT THE CURRENTLY CONTROLLING
REGULATION DOES NOT GIVE THE ACTIVITY AUTHORITY TO NEGOTIATE THE MATTER
OF EXCEPTIONS TO THE UNIFORM WEARING REQUIREMENT, THE ASSISTANT
SECRETARY RULED THAT THE ACTIVITY (WHICH HAD COMPLIED WITH THE POSTING
REQUIREMENT OF THE ASSISTANT SECRETARY'S ORDER) WAS NOT IN NONCOMPLIANCE
BY REFUSING TO NEGOTIATE THE MATTER OF EXCEPTIONS. THE ASSISTANT
SECRETARY ALSO NOTED THAT HIS DECISION WOULD NOT PREVENT ACT FROM
EXERCISING ITS RIGHTS UNDER SECTION 11(C) OF THE ORDER CONCERNING THE
CURRENT REGULATION. ACT APPEALED TO THE COUNCIL, CONTENDING, IN
ESSENCE, THAT THE ASSISTANT SECRETARY'S DECISION WITH REGARD TO HIS
REMEDY AND THE ACTIVITY'S COMPLIANCE THEREWITH IS ARBITRARY AND
CAPRICIOUS AND PRESENTS MAJOR POLICY ISSUES.
COUNCIL ACTION (NOVEMBER 18, 1975). THE COUNCIL HELD THAT ACT'S
PETITION FOR REVIEW DOES NOT MEET THE REQUIREMENTS OF SECTION 2411.12 OF
THE COUNCIL'S RULES; THAT IS, THE DECISION OF THE ASSISTANT SECRETARY
DOES NOT APPEAR ARBITRARY AND CAPRICIOUS AND PRESENTS NO MAJOR POLICY
ISSUE WARRANTING REVIEW. ACCORDINGLY, THE COUNCIL DENIED ACT'S PETITION
FOR REVIEW.
DEAR MR. PATERNO:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION AND THE AGENCY'S OPPOSITION THERETO IN
THE ABOVE-ENTITLED CASE.
IN THIS CASE, THE ASSOCIATION OF CIVILIAN TECHNICIANS (ACT) FILED AN
UNFAIR LABOR PRACTICE COMPLAINT WHICH ALLEGED, ESSENTIALLY, THAT THE NEW
YORK ARMY AND AIR NATIONAL GUARD (THE ACTIVITY) HAD NOT FULFILLED ITS
OBLIGATION UNDER THE ORDER TO MEET AND CONFER WITH THE UNION ABOUT A
NUMBER OF ITEMS, INCLUDING THE WEARING OF UNIFORMS. AT THE TIME THAT
THE EVENTS COMPLAINED OF OCCURRED, IT APPEARS THAT A NATIONAL GUARD
BUREAU (NGB) REGULATION WAS IN EFFECT WHICH GAVE THE HEADS OF INDIVIDUAL
STATE UNITS THE PREROGATIVE TO MAKE EXCEPTIONS TO THE GENERAL UNIFORM
WEARING REQUIREMENT. THE ASSISTANT SECRETARY, IN AGREEMENT WITH THE
ADMINISTRATIVE LAW JUDGE, FOUND THAT THE ACTIVITY HAD VIOLATED SECTION
19(A)(1) AND (6) OF THE ORDER, AND ORDERED THE ACTIVITY TO CEASE AND
DESIST FROM, AMONG OTHER THINGS, "(R)EFUSING TO MEET AND CONFER WITH
ASSOCIATION OF CIVILIAN TECHNICIANS . . . WITH RESPECT TO EXCEPTIONS TO
THE REQUIREMENT THAT UNIFORMS WILL BE WORN BY AFFECTED EMPLOYEES BY
LIMITING DISCUSSIONS TO ITS UNILATERALLY ESTABLISHED CRITERIA FOR SUCH
EXCEPTIONS."
AFTER THE ISSUANCE OF THIS REMEDIAL ORDER, THE ACTIVITY AND THE NGB
NOTIFIED THE ASSISTANT SECRETARY THAT HIS REMEDIAL ORDER WAS BASED UPON
AN NGB REGULATION WHICH HAD BEEN CHANGED SO THAT HEADS OF INDIVIDUAL
UNITS NO LONGER HAD ANY DISCRETION IN EXCUSING TECHNICIANS FROM THE
UNIFORM WEARING REQUIREMENT. THE NGB FURTHER NOTIFIED THE ASSISTANT
SECRETARY THAT IT WAS COMPLYING WITH THE REQUIREMENT THAT NOTICES BE
POSTED AT THE ACTIVITY. ACT THEN QUESTIONED THE ACTIVITY'S COMPLIANCE
WITH THE ABOVE-QUOTED PROVISION OF THE ASSISTANT SECRETARY'S REMEDIAL
ORDER, CONTENDING THAT THE ACTIVITY WAS NOT ONLY REQUIRED TO POST A
NOTICE, BUT ALSO TO NEGOTIATE THE UNIFORM WEARING ISSUE NOTWITHSTANDING
THE CHANGED REGULATION.
IN RESPONSE, THE ASSISTANT SECRETARY NOTED THAT THE IMPACT OF THE
CHANGED REGULATION HAD NOT BEEN LITIGATED, AND THAT HIS DECISION DEALT
ONLY WITH THE BARGAINING OBLIGATION RELATING TO THE PREVIOUSLY EXISTING
REGULATION.
BASED UPON THE FACT THAT THE CURRENTLY CONTROLLING REGULATION DOES
NOT GIVE THE ACTIVITY AUTHORITY TO NEGOTIATE THE MATTER OF EXCEPTIONS TO
THE UNIFORM WEARING REQUIREMENTS, THE ASSISTANT SECRETARY CONCLUDED THAT
THE ACTIVITY'S REFUSAL TO NEGOTIATE THE MATTER DID NOT CONSTITUTE AN ACT
OF NONCOMPLIANCE. HE ADDITIONALLY NOTED THAT HIS DECISION ON THE
COMPLIANCE ISSUE "WOULD NOT PRECLUDE (ACT FROM) EXERCISING (ITS) RIGHTS
UNDER SECTION 11(C) OF THE ORDER WITH RESPECT TO THE CURRENT REGULATION
REGARDING UNIFORM WEARING BY CIVILIAN TECHNICIANS."
IN YOUR PETITION FOR REVIEW, YOU CONTEND, IN ESSENCE, THAT THE
ASSISTANT SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS AND PRESENTS
A MAJOR POLICY ISSUE BECAUSE THE ASSISTANT SECRETARY RELIED UPON
SUBSEQUENT EVENTS AND MATERIALS OUTSIDE THE RECORD IN MAKING HIS
DETERMINATION THAT THE ACTIVITY'S REFUSAL TO NEGOTIATE DID NOT
CONSTITUTE NONCOMPLIANCE. YOU FURTHER CONTEND THAT THE DECISION
PRESENTS A MAJOR POLICY ISSUE AS TO THE "INTENT OF REMEDY." IN THIS
REGARD, YOU ALLEGE ESSENTIALLY THAT A REMEDY MUST BE APPLIED TO REPAIR
THE HARM EVIDENCED AT THE TIME, AND THAT THE UNFAIR LABOR PRACTICE IN
THIS CASE CAN ONLY BE REMEDIED BY RETURNING TO CONDITIONS AS THEY
EXISTED AT THE TIME THE COMPLAINT WAS FILED. FINALLY, YOU CONTEND THAT
THE DECISION RAISES AS A MAJOR POLICY ISSUE WHETHER THE ASSISTANT
SECRETARY'S COMPLIANCE DETERMINATION IS TANTAMOUNT TO A NEGOTIABILITY
DETERMINATION WHICH WOULD, THEREFORE, BE DIRECTLY APPEALABLE TO THE
COUNCIL UNDER E.O. 11491, AS AMENDED BY E.O. 11838.
IN THE COUNCIL'S VIEW, YOUR PETITION FOR REVIEW DOES NOT MEET THE
REQUIREMENTS OF SECTION 2411.12 OF THE COUNCIL'S RULES; THAT IS, THE
DECISION OF THE ASSISTANT SECRETARY PRESENTS NO MAJOR POLICY ISSUES NOR
DOES IT APPEAR ARBITRARY AND CAPRICIOUS. WITH RESPECT TO YOUR RELATED
CONTENTIONS THAT THE ASSISTANT SECRETARY RELIED UPON SUBSEQUENT EVENTS
AND MATERIAL WHICH SHOULD NOT HAVE BEEN CONSIDERED AND THAT HIS REMEDY
DID NOT ACCOMPLISH THE RESULT INTENDED BY THE ORDER, SECTION 6(B) OF THE
ORDER CONFERS CONSIDERABLE DISCRETION ON THE ASSISTANT SECRETARY, WHO
"MAY REQUIRE AN AGENCY OR A LABOR ORGANIZATION TO CEASE AND DESIST FROM
VIOLATIONS OF THIS ORDER AND REQUIRE IT TO TAKE SUCH AFFIRMATIVE ACTION
AS HE CONSIDERS APPROPRIATE TO EFFECTUATE THE POLICIES OF THIS ORDER."
THE AUTHORITY OF THE ASSISTANT SECRETARY TO ISSUE REMEDIAL ORDERS
CLEARLY INCLUDES THE AUTHORITY TO DETERMINE WHETHER A PARTY HAS COMPLIED
THEREWITH. IN THE COUNCIL'S OPINION, THE ASSISTANT SECRETARY'S
DETERMINATION IN THIS REGARD IS NOT WITHOUT REASONABLE JUSTIFICATION IN
THE PARTICULAR CIRCUMSTANCES OF THIS CASE, AND HIS CONSIDERATION OF
"SUBSEQUENT EVENTS AND MATERIALS" DOES NOT RAISE A MAJOR POLICY ISSUE
WARRANTING REVIEW. MOREOVER, IT DOES NOT APPEAR THAT THE ASSISTANT
SECRETARY HAS EITHER EXCEEDED THE SCOPE OF HIS AUTHORITY UNDER SECTION
6(B) OF THE ORDER OR THAT HIS COMPLIANCE DETERMINATION IS INCONSISTENT
WITH THE POLICIES OF THE ORDER, AND THEREFORE NO MAJOR POLICY ISSUES ARE
PRESENTED WARRANTING COUNCIL REVIEW. FINALLY, NO MAJOR POLICY ISSUE IS
PRESENTED WITH RESPECT TO YOUR CONTENTION THAT THE ASSISTANT SECRETARY
MADE A NEGOTIABILITY DETERMINATION APPEALABLE TO THE COUNCIL, NOTING
PARTICULARLY THAT THE ASSISTANT SECRETARY DEALT ONLY WITH THE MATTER OF
ALLEGED NONCOMPLIANCE RAISED BEFORE HIM, WAS NOT FACED WITH THE
RESOLUTION OF AN ISSUE ARISING UNDER SECTION 11(D) OF THE ORDER, AND
SPECIFICALLY INDICATED THAT HIS DECISION ON THE COMPLIANCE ISSUE WOULD
NOT PRECLUDE INSTITUTION OF AN 11(C) PROCEEDING WITH RESPECT TO THE
CURRENT REGULATION.
ACCORDINGLY, SINCE YOUR PETITION FAILS TO MEET THE REQUIREMENTS FOR
REVIEW SET FORTH IN SECTION 2411.12 OF THE COUNCIL'S RULES OF PROCEDURE,
REVIEW OF THE PETITION IS HEREBY DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
B. W. HURLOCK
NATIONAL GUARD
3 FLRC 742; FLRC NO. 75A-71; NOVEMBER 18, 1975.
MR. PHILLIP R. KETE, PRESIDENT
NATIONAL COUNCIL OF CSA LOCALS
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
1200 19TH STREET, NW.
WASHINGTON, D.C. 20506
(SYNOPSIS) FLRC NO. 75A-71
COMMUNITY SERVICES ADMINISTRATION AND AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES (AFL-CIO), LOCAL 2677 (DORSEY, ARBITRATOR). THE
ARBITRATOR DISMISSED THE GRIEVANCE HERE INVOLVED FOR LACK OF ADEQUATE
PROOF. THE UNION EXCEPTED TO THE ARBITRATOR'S AWARD, CONTENDING, IN
ESSENCE, THAT THE ARBITRATOR REFUSED TO HEAR EVIDENCE PERTINENT AND
MATERIAL TO THE CONTROVERSY BEFORE HIM.
COUNCIL ACTION (NOVEMBER 18, 1975). THE COUNCIL HELD THAT THE
UNION'S PETITION DID NOT DESCRIBE FACTS AND CIRCUMSTANCES NECESSARY TO
SUPPORT ITS EXCEPTION. ACCORDINGLY, THE COUNCIL DENIED THE UNION'S
PETITION FOR REVIEW BECAUSE IT FAILED TO MEET THE REQUIREMENTS FOR
REVIEW SET FORTH IN SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE.
DEAR MR. KETE:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF AN
ARBITRATOR'S AWARD FILED IN THE ABOVE-ENTITLED CASE, THE AGENCY'S
OPPOSITION THERETO, AND THE PUBLIC RECORD OF THE PROCEEDINGS BEFORE THE
ARBITRATOR.
ACCORDING TO THE AWARD, MS. THERESA WILLIAMS, THE GRIEVANT, WAS A
SENIOR ACCOUNTING ASSISTANT WITH CAREER TRAINING TO QUALIFY HER FOR
ACCOUNTING ASSISTANT, GS-7. ON AUGUST 5, 1974, MS. WILLIAMS FILED A
GRIEVANCE ALLEGING THAT "SECTION 8 /1/ OF THE CONTRACT AMENDMENTS HAS
BEEN VIOLATED IN THAT I MEET THE CRITERIA SET BY THAT SECTION FOR A
CAREER PROMOTION YET I HAVE NOT BEEN PROMOTED . . . " /2/ THIS GRIEVANCE
WAS SUBMITTED TO ARBITRATION. ACCORDING TO THE RECORD OF THE
PROCEEDINGS, ON DECEMBER 30, 1974, THE FIRST DAY OF THE ARBITRATION
HEARING, THE PARTIES ENTERED INTO AN AGREEMENT TO POSTPONE THE HEARING
IN ORDER, AS THE ARBITRATOR STATED, TO "BARGAIN IN GOOD FAITH AND TAKE
WHATEVER ACTION IS NECESSARY TO SETTLE THE DISPUTE WITHOUT CONTINUING
THIS HEARING." /3/ THE ARBITRATOR RESUMED THE HEARING ON MARCH 3, 1975,
AFTER THE PARTIES DID NOT SETTLE THE DISPUTE.
THE ARBITRATOR FRAMED THE ISSUE AS "WHETHER GRIEVANT IS CONTRACTUALLY
ENTITLED-- BY INTERPRETATION AND APPLICATION OF THE AFORESAID SECTION
8-- TO A CAREER PROMOTION." HE FOUND THAT:
THE CRITERION "THAT THERE IS ENOUGH WORK AT THE FULL PERFORMANCE
LEVEL FOR ALL EMPLOYEES IN
THE CAREER LADDER GROUP" WAS NOT PROVEN BY SUBSTANTIAL MATERIAL AND
RELEVANT EVIDENCE OF
PROBATIVE VALUE . . . FURTHER, NO EVIDENCE WAS ADDUCED TO GIVE
SPECIFIC MEANING TO THE PHRASE
"CAREER LADDER GROUPS."
THE ARBITRATOR DETERMINED THAT HE WAS COMPELLED TO DISMISS THE
GRIEVANCE FOR LACK OF PROOF OF THE EXISTENCE OF AN INDISPENSABLE
CONDITION MANDATED IN SECTION 8 OF THE AMENDMENTS OF THE AGREEMENT.
THE UNION REQUESTS THAT THE COUNCIL ACCEPT ITS PETITION FOR REVIEW OF
THE ARBITRATOR'S AWARD ON THE BASIS OF THE EXCEPTION DISCUSSED BELOW.
/4/ THE AGENCY FILED AN OPPOSITION.
UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE, REVIEW OF
AN ARBITRATION AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON
THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE
EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES
APPLICABLE LAW, APPROPRIATE REGULATION OR THE ORDER, OR OTHER GROUNDS
SIMILAR TO THOSE UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE
SUSTAINED BY COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS."
THE UNION CONTENDS THAT "AT THE HEARING THE ARBITRATOR REJECTED AND
IN HIS OPINION HE APPARENTLY DID NOT CONSIDER RELEVANT EVIDENCE ON THIS
POINT (WHETHER THERE WAS ENOUGH WORK AT THE FULL PERFORMANCE LEVEL FOR
ALL EMPLOYEES IN MS. WILLIAMS' CAREER LADDER GROUP), BY DOING SO
DEPRIVING THE UNION OF A FAIR HEARING IN THIS MATTER." THE PETITION
STATES THAT "THE EVIDENCE OFFERED BY THE UNION AND REJECTED BY THE
ARBITRATOR WAS MATERIAL AND PERTINENT." ACCORDING TO THE PETITION, "THE
EVIDENCE REJECTED CONSISTED OF A DOCUMENT . . . AND THE TESTIMONY OF MR.
R. G. WHITE CONCERNING THE AMOUNT OF WORK AVAILABLE AT THE VARIOUS GRADE
LEVELS IN HIS UNIT."
THE COUNCIL WILL GRANT A PETITION FOR REVIEW OF AN ARBITRATION AWARD
WHERE IT APPEARS, BASED UPON THE FACTS AND CIRCUMSTANCES DESCRIBED IN
THE PETITION, THAT THE ARBITRATOR REFUSED TO HEAR EVIDENCE PERTINENT AND
MATERIAL TO THE CONTROVERSY BEFORE HIM. OFFICE OF ECONOMIC OPPORTUNITY,
KANSAS CITY REGIONAL OFFICE, REGION VII AND NATIONAL COUNCIL OF OEO
LOCALS, LOCAL 2691, AFL-CIO (YAROWSKY, ARBITRATOR), FLRC NO. 74A-102
(AUGUST 15, 1975), REPORT NO. 81. HOWEVER, THE COUNCIL IS OF THE
OPINION THAT THE UNION'S PETITION DOES NOT DESCRIBE FACTS AND
CIRCUMSTANCES TO SUPPORT ITS EXCEPTION THAT THE EVIDENCE REJECTED BY THE
ARBITRATOR WAS PERTINENT AND MATERIAL TO THE GRIEVANCE BEFORE HIM. THE
RECORD OF THE PROCEEDINGS BEFORE THE ARBITRATOR SHOWS THAT THE
ARBITRATOR REJECTED THE DOCUMENT IN QUESTION AFTER HE LEARNED THAT IT
CONCERNED PROPOSED STAFFING WHICH WAS DEVELOPED AFTER THE GRIEVANCE WAS
FILED AND WHICH WAS NEVER EFFECTUATED. /5/ THE RECORD ALSO INDICATES
THAT THE ARBITRATOR SUSTAINED AN OBJECTION BY THE AGENCY TO TESTIMONY ON
THE SAME MATTER BY MR. WHITE. /6/ THESE RULINGS BY THE ARBITRATOR ARE
CONSISTENT WITH HIS VIEW, EXPRESSED ELSEWHERE IN THE RECORD, THAT "WE
ARE INTERESTED IN WHAT THE SITUATION WAS AS OF THE DATE THE GRIEVANCE
WAS FILED, NOT WHAT HAPPENED AFTER THAT." /7/
ACCORDINGLY, THE UNION'S PETITION FOR REVIEW IS DENIED BECAUSE IT
FAILS TO MEET THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.32
OF THE COUNCIL'S RULES OF PROCEDURE.
BY THE COUNCIL.
CC: R. G. JOHNSON
CSA
/1/ ACCORDING TO THE AWARD, SECTION 8 OF THE CONTRACT AMENDMENTS
STATES AS FOLLOWS:
SECTION 8. CAREER PROMOTIONS.
EACH EMPLOYEE SERVING BELOW THE JOURNEYMAN LEVEL IN A CAREER LADDER
WILL BE PROMOTED TO THE
NEXT GRADE LEVEL WHEN HE HAS: (1) MET THE QUALIFICATION REQUIREMENTS
OF THE POSITION, (2)
DEMONSTRATED ABILITY TO PERFORM AT THE HIGHER LEVEL, AND (3) IF THERE
IS ENOUGH WORK AT THE
FULL PERFORMANCE LEVEL FOR ALL EMPLOYEES IN THE CAREER LADDER GROUP .
. . (NUMBERS INSERTED
FOR IDENTIFICATION).
/2/ THE UNION ENLARGED THE GRIEVANCE TO INCLUDE ALLEGED VIOLATIONS OF
THE GRIEVANT'S RIGHTS UNDER ARTICLE 7, SECTION 6, AND ARTICLE 10,
SECTIONS 1, 3 AND 4 OF THE PARTIES' AGREEMENT. THE ARBITRATOR FOUND
THAT "(N)O EVIDENCE OF PROBATIVE VALUE WAS ADDUCED DURING THE COURSE OF
THE ARBITRATION HEARING TO SUPPORT THESE ADDED ALLEGATIONS. THEY ARE
DISMISSED FOR LACK OF PROOF." NEITHER PARTY CHALLENGES THIS PART OF THE
AWARD.
/3/ AT P. 7 OF THE RECORD OF THE PROCEEDINGS. THE PARTIES'
AGREEMENT, MARKED AND RECEIVED AS JOINT EXHIBIT NO. 2, STATES IN
PERTINENT PART:
THE PARTIES HAVE AGREED TO POSTPONE THE HEARING IN THE THERESA
WILLIAMS CASE FOR THREE
WEEKS IN ORDER THAT THE FACTS CONCERNING GRADE LEVELS SUPPORTABLE IN
THE FINANCE AND GRANTS
MANAGEMENT DIVISION OF THE OFFICE OF THE CONTROLLER CAN BE EXAMINED
AND DETERMINED.
DURING THE THREE WEEK PERIOD LINE MANAGEMENT, WITH THE ADVICE AND
ASSISTANCE OF A
CLASSIFICATION SPECIALIST AND A MANAGEMENT ANALYST, WILL DEVELOP A
DISTRIBUTION OF WORK AMONG
THE POSITIONS ALLOTTED TO THE DIVISION SO AS TO MAXIMIZE THE
JOURNEYMAN LEVEL OF THOSE
POSITIONS. THE UNION WILL HAVE AN OBSERVOR IN THESE DISCUSSIONS.
ON THE BASIS OF THIS NEW ALLOCATION OF DUTIES THE PARTIES BELIEVE
THEY WILL BE ABLE TO
RESOLVE THE WILLIAMS GRIEVANCE.
/4/ IN ITS PETITION, THE UNION REQUESTS THAT THE COUNCIL " . . .
VACATE THE AWARD . . . AND REMAND IT TO THE ARBITRATOR FOR A DECISION
BASED ON THE COMPLETE RECORD OFFERED AT THE HEARING IN THE CASE."
/5/ THE RECORD OF THE PROCEEDINGS STATES, AT PP. 97-98:
THE ARBITRATOR: . . . MR. WITNESS, I NOTICE THIS IS A PROPOSED
STAFFING, DATED 1-3-75.
THE WITNESS (MR. R. WHITE, CHIEF OF THE FINANCE AND GRANTS MANAGEMENT
DIVISION): YES, SIR.
THE ARBITRATOR: WAS THIS EVER EFFECTUATED?
THE WITNESS: NO, SIR.
THE ARBITRATOR: UNION EXHIBIT 16 IS NOT ADMITTED AND WILL BE PLACED
IN THE RECORD AS A
REJECTED EXHIBIT.
/6/ THE RECORD OF THE PROCEEDINGS STATES, AT PP. 100-101:
THE WITNESS (MR. WHITE): . . . MY PROPOSAL WAS ORIGINALLY TO
STRENGTHEN THE VOUCHER
EXAMINATIONS, VOUCHER EXAMINERS, WE GAVE THEM ACCOUNTING DUTIES. MY
ONLY PROPOSAL NOW WOULD
BE THAT WE TAKE THE ACCOUNTING DUTIES AWAY FROM VOUCHER EXAMINERS,
MAKE THEM PURE VOUCHER
EXAMINERS AND HAVE PURE ACCOUNTING TECHNICIANS, THEREBY BEING ABLE TO
SUPPORT A HIGHER GRADE
LEVEL THERE.
MR. KETE (UNION REPRESENTATIVE): YOU FEEL FROM A MANAGEMENT
STANDPOINT THIS IS A FEASIBLE
THING TO DO?
THE ARBITRATOR: WE ARE GETTING OFF IN THE NEVER-NEVER LAND NOW.
MR. KETE: WHEN YOU SAY YOU PROPOSED THIS, WHEN DID YOU PROPOSE IT
AND TO WHOM?
MS. POGAR (AGENCY REPRESENTATIVE): OBJECTION. WE OBJECTED TO THE
DOCUMENT THAT DEALT WITH
THAT. IT WAS PART OF AN ATTEMPTED RESOLUTION OF THIS MATTER. IT
GOES BACK TO THIS DOCUMENT
HERE, JOINT EXHIBIT NO. 2. THOSE DOCUMENTS WERE EXCHANGED BETWEEN
THE PARTIES, THEY ATTEMPTED
TO REACH A RESOLUTION, THEY DID NOT, AND THAT IS WHY WE ARE HERE
TODAY.
THE ARBITRATOR : OBJECTION SUSTAINED.
/7/ AT P. 84 OF THE RECORD OF THE PROCEEDINGS.
3 FLRC 735; FLRC NO. 74A-66; NOVEMBER 18, 1975.
NFFE LOCAL 943
AND
KEESLER AIR FORCE BASE,
MISSISSIPPI
(SYNOPSIS) FLRC NO. 74A-66
NFFE LOCAL 943 AND KESSLER AIR FORCE BASE, MISSISSIPPI. THE DISPUTE
INVOLVED THE NEGOTIABILITY OF UNION PROPOSALS CONCERNING (1)
MANAGEMENT'S FILLING OF VACANT POSITIONS; AND (2) THE ALLOCATION OF
SUPERVISORY POSITIONS TO BE FILLED BY CIVILIAN EMPLOYEES.
COUNCIL ACTION (NOVEMBER 18, 1975). AS TO (1) THE COUNCIL DETERMINED
THAT THE UNION'S PROPOSAL, WHICH REASONABLY IS SUBJECT TO ALTERNATIVE
INTERPRETATIONS IS EITHER EXCLUDED FROM THE AGENCY'S BARGAINING
OBLIGATION UNDER SECTION 12(B) OF THE ORDER, OR IS EXCEPTED FROM THE
AGENCY'S OBLIGATION TO BARGAIN UNDER SECTION 11(B). ACCORDINGLY, UNDER
EITHER INTERPRETATION, THE COUNCIL CONCLUDED THAT THE AGENCY'S
DETERMINATION THAT THE PROPOSAL IS NONNEGOTIABLE WAS PROPER AND MUST BE
SUSTAINED. AS TO (2), THE COUNCIL CONCLUDED THAT, APART FROM OTHER
CONSIDERATIONS, THE PROPOSAL CONTRAVENES SECTION 12(B)(5) OF THE ORDER
AND THUS IS NONNEGOTIABLE. THE COUNCIL THEREFORE SUSTAINED THE AGENCY
HEAD'S DETERMINATION OF NONNEGOTIABILITY.
IN CONNECTION WITH NEGOTIATIONS BETWEEN NFFE LOCAL 943 (HEREINAFTER
THE "UNION") AND KESSLER AIR FORCE BASE, MISSISSIPPI A DISPUTE AROSE
CONCERNING THE NEGOTIABILITY OF TWO UNION PROPOSALS (SECTION 7 AND
SECTION 9 OF THE ARTICLE ON PROMOTIONS, SET FORTH HEREINAFTER). UPON
REFERRAL, THE DEPARTMENT OF DEFENSE (HEREINAFTER THE "AGENCY")
DETERMINED THAT BOTH PROPOSALS ARE NONNEGOTIABLE UNDER SECTIONS 11(B)
AND 12(B) OF THE ORDER. THE UNION PETITIONED THE COUNCIL FOR REVIEW
UNDER SECTION 11(C)(4) OF THE ORDER, DISAGREEING WITH THE AGENCY
DETERMINATION, AND THE AGENCY FILED A STATEMENT OF ITS POSITION.
THE PROPOSALS WILL BE DISCUSSED SEPARATELY BELOW.
1. "UNION ARTICLE, SECTION 7, PROMOTION," PROVIDES AS FOLLOWS:
MANAGEMENT AGREES TO ADOPT A POLICY OF FILLING VACANCIES WHERE THEY
ORGANIZATIONALLY AND
FUNCTIONALLY EXIST. EXCEPTIONS TO THIS POLICY WILL BE PROVIDED IN
THOSE CASES WHERE
MANAGEMENT HAS AN OVERRIDING MISSION REQUIREMENT THAT CAN ONLY BE MET
THROUGH ROTATION OF THE
VACANCY TO ANOTHER ORGANIZATIONAL OR FUNCTIONAL LEVEL. EXCEPTIONS TO
THIS POLICY WILL NOT
TAKE PLACE UNTIL MANAGEMENT HAS CONSULTED WITH THE UNION.
THE AGENCY CONTENDS THAT THIS PROPOSAL WOULD LIMIT MANAGEMENT'S
RIGHTS UNDER SECTION 12(B) OF THE ORDER. IT FURTHER ASSERTS THAT THE
PROPOSAL CONCERNS MATTERS WITH RESPECT TO THE NUMBERS, TYPES AND GRADES
OF POSITIONS ASSIGNED TO AN ORGANIZATIONAL UNIT, I.E., THE AGENCY'S
STAFFING PATTERN, AND IS THEREFORE EXCEPTED FROM THE OBLIGATION TO
BARGAIN UNDER SECTION 11(B) OF THE ORDER. THE UNION ARGUES TO THE
CONTRARY THAT THE PROPOSAL MERELY PROVIDES A NEGOTIABLE PROCEDURE WHICH
MANAGEMENT WOULD OBSERVE IN EXERCISING ITS RIGHTS UNDER SECTION 12(B);
AND THAT THE PROPOSAL DOES NOT IN ANY MANNER LIMIT MANAGEMENT'S
DISCRETION CONCERNING THE NUMBERS, TYPES AND GRADES OF POSITIONS
ASSIGNED TO AN ORGANIZATIONAL UNIT AND, THUS, DOES NOT CONCERN A MATTER
EXCLUDED FROM THE AGENCY'S OBLIGATION TO BARGAIN UNDER SECTION 11(B).
SECTION 12 OF THE ORDER PROVIDES IN PERTINENT PART AS FOLLOWS:
SEC. 12. BASIC PROVISIONS OF AGREEMENTS. EACH AGREEMENT BETWEEN AN
AGENCY AND A LABOR
ORGANIZATION IS SUBJECT TO THE FOLLOWING REQUIREMENTS--
(B) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN
ACCORDANCE WITH APPLICABLE LAWS
AND REGULATIONS--
(2) TO HIRE, PROMOTE, TRANSFER, ASSIGN, AND RETAIN EMPLOYEES IN
POSITIONS WITHIN THE AGENCY
. . .
WITH REGARD TO THE MEANING OF THIS SECTION, THE COUNCIL HAS
FREQUENTLY EMPHASIZED IN ITS DECISIONS THAT THE LANGUAGE OF SECTION
12(B)(2) MANIFESTS AN INTENT TO BAR FROM AGREEMENTS PROVISIONS WHICH
INFRINGE UPON MANAGEMENT OFFICIALS' EXERCISE OF THEIR EXISTING AUTHORITY
TO TAKE THE PERSONNEL ACTIONS SPECIFIED THEREIN. THE SECTION DOES NOT,
HOWEVER, PRECLUDE NEGOTIATION OF THE PROCEDURES WHICH MANAGEMENT WILL
FOLLOW IN EXERCISING THAT RESERVED AUTHORITY, SO LONG AS SUCH PROCEDURES
DO NOT HAVE THE EFFECT OF NEGATING THE AUTHORITY ITSELF. THUS, IN ITS
VA RESEARCH HOSPITAL DECISION /1/ CONCERNING A PROPOSAL WHICH WOULD HAVE
ENABLED THE UNION TO OBTAIN HIGHER LEVEL MANAGEMENT REVIEW OF A
SELECTION FOR PROMOTION BEFORE THAT PROMOTION COULD BE EFFECTED, THE
COUNCIL STATED:
SECTION 12(B)(2) DICTATES THAT IN EVERY LABOR AGREEMENT MANAGEMENT
OFFICIALS RETAIN THEIR
EXISTING AUTHORITY TO TAKE CERTAIN PERSONNEL ACTIONS, I.E., TO HIRE,
PROMOTE, ETC. THE
EMPHASIS IS ON THE RESERVATION OF MANAGEMENT AUTHORITY TO DECIDE AND
ACT ON THESE MATTERS, AND
THE CLEAR IMPORT IS THAT NO RIGHT ACCORDED TO UNIONS UNDER THE ORDER
MAY BE PERMITTED TO
INTERFERE WITH THAT AUTHORITY. HOWEVER, THERE IS NO IMPLICATION THAT
SUCH RESERVATION OF
DECISION MAKING AND ACTION AUTHORITY IS INTENDED TO BAR NEGOTIATIONS
OF PROCEDURES, TO THE
EXTENT CONSONANT WITH LAW AND REGULATIONS, WHICH MANAGEMENT WILL
OBSERVE IN REACHING THE
DECISION OR TAKING THE ACTION INVOLVED, PROVIDED THAT SUCH PROCEDURES
DO NOT HAVE THE EFFECT
OF NEGATING THE AUTHORITY RESERVED.
SECTION 11(B) OF THE ORDER, ALSO RELIED UPON BY THE AGENCY HEREIN,
EXCEPTS FROM THE OBLIGATION TO NEGOTIATE MATTERS WITH RESPECT TO, AMONG
OTHER THINGS:
. . . THE NUMBERS OF EMPLOYEES; AND THE NUMBERS, TYPES, AND GRADES
OF POSITIONS OR
EMPLOYEES ASSIGNED TO AN ORGANIZATIONAL UNIT, WORK PROJECT OR TOUR OF
DUTY . . .
IN ITS REPORT AND RECOMMENDATIONS TO THE PRESIDENT WHICH ACCOMPANIED
E.O. 11491, THE STUDY COMMITTEE STATED THAT THIS PORTION OF SECTION
11(B) APPLIES "TO AN AGENCY'S RIGHT TO ESTABLISH STAFFING PATTERNS FOR
ITS ORGANIZATION AND THE ACCOMPLISHMENT OF ITS WORK . . . " /2/
IN THE COUNCIL'S VIEW, THE PROPOSAL PRESENTLY BEFORE US WOULD REQUIRE
EITHER, (1) THAT MANAGEMENT MUST FILL ALL VACANT POSITIONS, IN
ACCORDANCE WITH THE CONDITIONS SET FORTH IN THE PROPOSAL, OR (2) THAT
MANAGEMENT MUST FILL, IN ACCORDANCE WITH THE PROPOSAL'S CONDITIONS, ONLY
THOSE VACANT POSITIONS WHICH IT DETERMINES SHOULD BE FILLED.
THE AMBIGUITY IN THE LANGUAGE OF THE PROPOSAL WHICH GIVES RISE TO
THESE ALTERNATIVE INTERPRETATIONS IS NOT RESOLVED BY THE RECORD BEFORE
THE COUNCIL. HOWEVER, FOR THE REASONS WHICH FOLLOW, UNDER EITHER
READING OF THE PROPOSAL, WE MUST FIND IT TO BE NONNEGOTIABLE IN THE
CIRCUMSTANCES OF THIS CASE.
AS TO (1), IF THE PROPOSAL REQUIRES THE FILLING OF ALL VACANCIES
(EITHER "WHERE THEY ORGANIZATIONALLY AND FUNCTIONALLY EXIST" OR AT
"ANOTHER ORGANIZATIONAL OR FUNCTIONAL LEVEL"), IT CATEGORICALLY NEGATES
THE DECISION AND ACTION AUTHORITY EXPRESSLY RESERVED TO MANAGEMENT
OFFICIALS UNDER SECTION 12(B)(2) OF THE ORDER (I.E., TO "HIRE, PROMOTE,
TRANSFER, ASSIGN, AND RETAIN EMPLOYEES IN POSITIONS WITHIN THE AGENCY")
AS PREVIOUSLY EXPLAINED HEREIN, AS WELL AS THE "IMPLICIT AND
COEXTENSIVE" AUTHORITY, UNDER SECTION 12(B)(2), TO DECIDE NOT TO TAKE
SUCH ACTION. /3/ THEREFORE, UNDER THIS INTERPRETATION OF THE PROPOSAL
WE MUST FIND THAT IT VIOLATES SECTION 12(B)(2) OF THE ORDER.
ALTERNATIVELY, AS TO (2), IF THE PROPOSAL DOES NOT REQUIRE MANAGEMENT
TO FILL ALL VACANCIES AND HENCE DOES NOT LIMIT MANAGEMENT'S RESERVED
AUTHORITY WITH RESPECT TO DETERMINING WHICH VACANCIES IT WILL FILL, IT
WOULD NOT VIOLATE SECTION 12(B)(2) OF THE ORDER. HOWEVER, EVEN SO
INTERPRETED, THE PROPOSAL EXPRESSLY WOULD RESTRICT THE MOVEMENT OF
VACANT POSITIONS FROM ONE ORGANIZATIONAL UNIT TO ANOTHER. THAT IS, BY
ITS OWN TERMS, THE PROPOSAL WOULD MAKE "ROTATION OF THE VACANCY TO
ANOTHER ORGANIZATIONAL OR FUNCTIONAL LEVEL" CONTINGENT UPON THE
EXISTENCE OF AN "OVERRIDING MISSION REQUIREMENT." HENCE, CONTRARY TO THE
UNION'S CONTENTIONS, THE PROPOSAL CLEARLY CONCERNS THE AGENCY'S STAFFING
PATTERNS AND WOULD REQUIRE THE AGENCY TO BARGAIN ON A MATTER WITH
RESPECT TO "THE NUMBERS, TYPES, AND GRADES OF POSITIONS OR EMPLOYEES
ASSIGNED TO AN ORGANIZATIONAL UNIT . . . " AS PREVIOUSLY INDICATED, THIS
MATTER IS EXPRESSLY EXCEPTED FROM THE OBLIGATION TO BARGAIN BY SECTION
11(B) OF THE ORDER.
IN SUMMARY, THE PROPOSAL, WHICH REASONABLY IS SUBJECT TO ALTERNATIVE
INTERPRETATIONS, IS EITHER EXCLUDED FROM THE BARGAINING OBLIGATION UNDER
SECTION 12(B) OF THE ORDER; OR IS EXCEPTED FROM THE OBLIGATION TO
BARGAIN UNDER SECTION 11(B). ACCORDINGLY, UNDER EITHER INTERPRETATION,
WE MUST CONCLUDE THAT THE AGENCY'S DETERMINATION THAT THE PROPOSAL IS
NONNEGOTIABLE WAS PROPER AND MUST BE SUSTAINED.
2. "UNION ARTICLE, SECTION 9, PROMOTION," PROVIDES AS FOLLOWS:
A REASONABLE ALLOCATION OF SUPERVISORY POSITIONS WILL BE FILLED BY
CIVILIAN EMPLOYEES AT
THE BRANCH, SCHOOL, DEPARTMENT AND DIVISION LEVELS SO AS TO PROVIDE
FOR A LOGICAL CAREER
PROGRESSION, AND IN CONFORMITY WITH AIR FORCE POLICY.
BRANCH, SCHOOL, DEPARTMENT AND DIVISION SUPERVISORY STAFFING UP TO
AND INCLUDING THE
DEPARTMENT CHIEF LEVEL SHALL PROVIDE CIVILIAN SUPERVISORY POSITIONS
IN REASONABLE RELATIONSHIP
WITH MILITARY SUPERVISION.
THE AGENCY DETERMINED PRINCIPALLY THAT THIS PROPOSAL WOULD LIMIT
MANAGEMENT'S RESERVED RIGHT UNDER SECTION 12(B)(5) OF THE ORDER TO
DETERMINE THE PERSONNEL BY WHICH ITS OPERATIONS ARE TO BE CONDUCTED;
MORE PARTICULARLY, "TO DETERMINE WHETHER SUPERVISORY POSITIONS ARE TO BE
FILLED BY MILITARY OR CIVILIAN INCUMBENTS." /4/ THE UNION CONTENDS,
HOWEVER, THAT THE PROPOSAL DOES NOT LIMIT MANAGEMENT'S RIGHT TO
DETERMINE THE PERSONNEL BY WHICH ITS OPERATIONS ARE TO BE CONDUCTED.
RATHER, THE UNION CLAIMS THAT THE PROPOSAL MERELY SEEKS "TO EXTEND
COVERAGE OF THE MERIT PROMOTION PLAN" TO A "REASONABLE ALLOCATION OF
SUPERVISORY POSITIONS," AT THE ORGANIZATIONAL LEVELS SPECIFIED IN THE
PROPOSAL, IN A MANNER ALLEGEDLY CONSISTENT WITH CHAPTER 335, SUBCHAPTER
5-1C(2) OF THE FEDERAL PERSONNEL MANUAL (FPM). /5/ IN THIS LATTER
REGARD, THE UNION ARGUES THAT TO "EFFECTIVELY ESTABLISH SUCH COVERAGE IT
IS NECESSARILY IMPLIED FROM THE FPM THAT A REASONABLE NUMBER OF
POSITIONS FOR CIVILIANS MUST BE ESTABLISHED OTHERWISE THE RIGHT TO
NEGOTIATE THE EXTENSION OF COVERAGE IS A HOLLOW RIGHT." FINALLY, THE
UNION ARGUES THAT MANAGEMENT RETAINS ITS RIGHT TO DETERMINE THE
STRUCTURE OF ITS ORGANIZATION SINCE THE PROPOSAL DOES NOT REQUIRE THAT
ANY PARTICULAR NUMBER OF SUPERVISORY POSITIONS BE FILLED BY CIVILIANS,
BUT ONLY SPECIFIES "A REASONABLE ALLOCATION" OF SUCH POSITIONS MUST BE
SO FILLED.
SECTION 12(B)(5) PROVIDES IN PERTINENT PART AS FOLLOWS:
SEC. 12. BASIC PROVISIONS OF AGREEMENTS. EACH AGREEMENT BETWEEN AN
AGENCY AND A LABOR
ORGANIZATION IS SUBJECT TO THE FOLLOWING REQUIREMENTS--
(B) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN
ACCORDANCE WITH APPLICABLE LAWS
AND REGULATIONS--
(5) TO DETERMINE THE . . . PERSONNEL BY WHICH . . . (AGENCY)
OPERATIONS ARE TO BE CONDUCTED
. . .
IT IS WELL ESTABLISHED SINCE THE COUNCIL'S TIDEWATER DECISION THAT
THE ABOVE QUOTED LANGUAGE OF SECTION 12(B)(5) OF THE ORDER RELATES TO
"WHO" WILL CONDUCT AGENCY OPERATIONS OR, IN GREATER PARTICULARITY: /6/
. . . AS USED IN (SECTION 12(B)(5) OF) THE ORDER, PERSONNEL MEANS THE
TOTAL BODY OF PERSONS
ENGAGED IN THE PERFORMANCE OF AGENCY OPERATIONS (I.E., THE
COMPOSITION OF THAT BODY IN TERMS
OF NUMBERS, TYPES OF OCCUPATIONS AND LEVELS) AND THE PARTICULAR
GROUPS OF PERSONS THAT MAKE UP
THE PERSONNEL CONDUCTING AGENCY OPERATIONS (E.G., MILITARY OR
CIVILIAN PERSONNEL; SUPERVISORY
OR NONSUPERVISORY PERSONNEL; PROFESSIONAL OR NONPROFESSIONAL
PERSONNEL; GOVERNMENT PERSONNEL
OR CONTRACT PERSONNEL). (EMPHASIS SUPPLIED.)
TURNING TO THE PRESENT PROPOSAL, IT WOULD REQUIRE THAT A "REASONABLE
ALLOCATION OF (CERTAIN) SUPERVISORY POSITIONS WILL BE FILLED BY CIVILIAN
EMPLOYEES . . . " SUCH A REQUIREMENT, IN ESSENCE, WOULD LIMIT
MANAGEMENT'S AUTHORITY TO FILL CERTAIN SUPERVISORY POSITIONS WITH
MILITARY PERSONNEL. PLAINLY, THE IMPOSITION OF THIS REQUIREMENT WOULD
RESTRICT MANAGEMENT'S RESERVED AUTHORITY UNDER SECTION 12(B)(5) TO
DETERMINE THE COMPOSITION, IN TERMS OF CIVILIAN AND MILITARY INCUMBENTS,
OF THE TOTAL BODY OF PERSONS ENGAGED IN THE PERFORMANCE OF SUCH
SUPERVISORY FUNCTIONS WITHIN THE AGENCY. HOWEVER, THE RIGHTS RESERVED
BY SECTION 12(B)(5) ARE "MANDATORY AND MAY NOT BE RELINQUISHED OR
DILUTED." /7/
FURTHER, IN OUR OPINION, THE UNION'S RELIANCE ON THE PROVISIONS OF
FPM 335.5-1 (NOTE 5, SUPRA) IS MISPLACED. THOSE PROVISIONS DO NOT IN
ANY MANNER RELATE TO THE SUBJECT UPON WHICH THE LANGUAGE OF THE PROPOSAL
AT ISSUE FOCUSES, I.E., WHO WILL PERFORM PARTICULAR AGENCY FUNCTIONS.
THEREFORE, THE FPM PROVISIONS RELIED UPON ARE INAPPOSITE AND DO NOT LEND
SUPPORT TO THE UNION'S CLAIM.
ACCORDINGLY, APART FROM OTHER CONSIDERATIONS, WE MUST CONCLUDE THAT
THE PROPOSAL CONTRAVENES SECTION 12(B)(5) OF THE ORDER AND THUS IS
NONNEGOTIABLE.
FOR THE REASONS DISCUSSED ABOVE AND PURSUANT TO 2411.28 OF THE
COUNCIL'S RULES AND REGULATIONS, WE FIND THAT THE AGENCY HEAD'S
DETERMINATION AS TO THE NONNEGOTIABILITY OF SECTIONS 7 AND 9 OF THE
UNION'S ARTICLE CONCERNING PROMOTIONS WAS VALID AND MUST BE SUSTAINED.
BY THE COUNCIL.
ISSUED: NOVEMBER 18, 1975
/1/ VETERANS ADMINISTRATION INDEPENDENT SERVICE EMPLOYEES UNION AND
VETERANS ADMINISTRATION RESEARCH HOSPITAL, CHICAGO, ILLINOIS, FLRC NO.
71A-31 (NOVEMBER 22, 1972), REPORT NO. 31 (PROPOSAL DEALING WITH
PROCEDURES WHICH DID NOT HAVE EFFECT OF NEGATING AUTHORITY RESERVED BY
SECTION 12(B)(2)); ACCORD, E.G., AFGE COUNCIL OF LOCALS 1497 AND 2165
AND REGION 3, GENERAL SERVICES ADMINISTRATION, BALTIMORE, MARYLAND, FLRC
NO. 74A-48 (JUNE 26, 1975), REPORT NO. 75 (PROCEDURE WHICH DID NOT HAVE
EFFECT OF NEGATING AUTHORITY RESERVED BY SECTION 12(B)(1) AND (2));
LOCAL 63, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND
BLAINE AIR FORCE STATIONS, BLAINE, WASHINGTON, FLRC NO. 74A-33 (JANUARY
8, 1975), REPORT NO. 61 (PROCEDURE VIOLATIVE OF AUTHORITY RESERVED BY
SECTION 12(B)(2) BECAUSE OF POTENTIAL UNREASONABLE DELAY).
/2/ LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1975), SECTION
E.1, AT 70.
/3/ SEE AFGE LOCAL 2118 AND LOS ALAMOS AREA OFFICE, ERDA, FLRC NO.
74A-30 (MAY 22, 1975), REPORT NO. 71; AND NATIONAL COUNCIL OF OEO
LOCALS, AFGE, AFL-CIO AND OFFICE OF ECONOMIC OPPORTUNITY, FLRC NO.
73A-67 (DECEMBER 6, 1974), REPORT NO. 61.
/4/ THE AGENCY ALSO ASSERTED THAT THE PROPOSAL IS OUTSIDE THE
BARGAINING OBLIGATION UNDER SECTIONS 11(B) AND 10(B)(1) OF THE ORDER.
HOWEVER, IN VIEW OF OUR DECISION HEREIN UNDER SECTION 12(B)(5) OF THE
ORDER, WE FIND IT UNNECESSARY TO REACH AND MAKE NO RULING AS TO THESE
CONTENTIONS.
/5/ FPM 335.5-1 PROVIDES, IN PERTINENT PART:
C. EXAMPLES OF MATTERS APPROPRIATE FOR CONSULTATION OR NEGOTIATION .
. . (2) COVERAGE OF A
PROMOTION PLAN, SUCH AS WHAT OCCUPATIONS, GRADE LEVELS,
ORGANIZATIONAL SUBDIVISIONS, AND
GEOGRAPHICAL LOCATION WILL BE INCLUDED . . .
/6/ TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL AND
NAVAL PUBLIC WORKS CENTER, NORFOLK, VIRGINIA, FLRC NO. 71A-56 (JUNE 29,
1973), REPORT NO. 41.
/7/ E.G., ID.
3 FLRC 728; FLRC NO. 74A-51; NOVEMBER 18, 1975.
SOCIAL SECURITY ADMINISTRATION
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, SSA LOCAL 1923
(SYNOPSIS) FLRC NO. 74A-51
SOCIAL SECURITY ADMINISTRATION AND AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, SSA LOCAL 1923 (STRONGIN, ARBITRATOR). THE
ARBITRATOR DETERMINED THAT THE AGENCY VIOLATED THE PARTIES' AGREEMENT BY
FAILING TO REPROMOTE THE GRIEVANT UNDER THE AGENCY PROMOTION PLAN
INCORPORATED IN THE AGREEMENT. AS A REMEDY, THE ARBITRATOR ORDERED THE
GRIEVANT PROMOTED RETROACTIVELY TO GS-13 ON THE EFFECTIVE DATE OF THE
AGREEMENT, AND TO GS-14 ON THE ANNIVERSARY DATE OF THE AGREEMENT, WITH
BACKPAY TO THOSE RESPECTIVE DATES. THE COUNCIL ACCEPTED THE AGENCY'S
PETITION FOR REVIEW INSOFAR AS IT ALLEGED, IN EFFECT, THAT THE AWARD OF
RETROACTIVE PROMOTION AND BACKPAY VIOLATES THE BACK PAY ACT (5 U.S.C.
5596) AND IMPLEMENTING REGULATIONS PRESCRIBED BY THE CIVIL SERVICE
COMMISSION. (REPORT NO. 60.)
COUNCIL ACTION (NOVEMBER 18, 1975). BASED UPON AN INTERPRETATION BY
THE CIVIL SERVICE COMMISSION, RENDERED IN RESPONSE TO THE COUNCIL'S
REQUEST, THE COUNCIL FOUND THAT, WHILE THE ARBITRATOR DID NOT EXCEED HIS
AUTHORITY BY DIRECTING RETROACTIVE PROMOTION WITH BACKPAY,
IMPLEMENTATION OF THE AWARD, INSOFAR AS IT DIRECTED THE RETROACTIVE
PROMOTION WITH BACKPAY TO THE SPECIFIC DATES CHOSEN BY THE ARBITRATOR
MAY BE VIOLATIVE OF APPLICABLE LAW AND APPROPRIATE REGULATION.
ACCORDINGLY, PURSUANT TO SECTION 2411.37(B) OF ITS RULES OF PROCEDURE,
THE COUNCIL SUSTAINED THE AWARD, AS MODIFIED BY A PROVISION THAT THE
AWARD CANNOT BE IMPLEMENTED UNLESS AND UNTIL THE EFFECTIVE DATES FOR THE
RETROACTIVE PROMOTIONS WITH BACKPAY ARE TIED TO THE FILLING OF SPECIFIC
POSITIONS FOR WHICH THE GRIEVANT WAS ENTITLED TO PRIORITY NONCOMPETITIVE
CONSIDERATION AND WOULD HAVE BEEN SELECTED BUT FOR THE VIOLATION OF THAT
ENTITLEMENT.
THIS APPEAL AROSE FROM THE AWARD ISSUED BY THE ARBITRATOR, WHEREIN HE
DETERMINED THAT THE SOCIAL SECURITY ADMINISTRATION (THE AGENCY) FAILED
TO COMPLY WITH AN AGENCY PROMOTION PLAN /1/ INCORPORATED BY REFERENCE IN
THE LABOR AGREEMENT WHICH THE AGENCY ENTERED INTO WITH THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, SSA LOCAL 1923 (THE UNION).
BASED ON THE FINDINGS OF THE ARBITRATOR AND THE ENTIRE RECORD, IT
APPEARS THAT THE GRIEVANT WAS A GS-14 AT THE NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION WHEN HE WAS REDUCED IN FORCE ON SEPTEMBER 30, 1970.
HE WAS REINSTATED AT THE AGENCY AS A GS-11 ON OCTOBER 19, 1970.
SUBSEQUENTLY, THE AGENCY PROMOTED HIM TO A GS-12 POSITION. A GRIEVANCE
WAS FILED ALLEGING THAT THE AGENCY HAD FAILED TO ACCORD THE GRIEVANT
NONCOMPETITIVE CONSIDERATION FOR REPROMOTION TO GS-13 AND GS-14
VACANCIES OCCURRING IN THE AGENCY UNDER THE PROMOTION PLAN AS A FEDERAL
EMPLOYEE REDUCED IN GRADE WITHOUT PERSONAL CAUSE.
ARBITRATION WAS INVOKED BY THE UNION. AS A REMEDY, THE UNION
REQUESTED THAT THE GRIEVANT BE RETROACTIVELY PROMOTED WITH BACKPAY TO A
GS-14 POSITION, BUT URGED THAT, IF THE ARBITRATOR RULED ADVERSELY WITH
RESPECT TO THAT REQUEST, THE GRIEVANT SHOULD AT LEAST BE AWARDED A
PROMOTION TO A GS-13 POSITION AT THE APPROPRIATE STEP.
THE ARBITRATOR DETERMINED THAT GRIEVANT WAS ENTITLED TO A GS-13
POSITION AT LEAST BY THE EFFECTIVE DATE OF THE AGREEMENT, WHICH WAS SIX
MONTHS AFTER THE ANNOUNCEMENT OF THE PROMOTION PLAN, BASED UPON THE
PROVISION IN THE PROMOTION PLAN WHICH INDICATED THAT, ALTHOUGH AN
EMPLOYEE REDUCED IN GRADE IS NOT GUARANTEED REPROMOTION, HE SHOULD
ORDINARILY BE REPROMOTED WHEN A VACANCY OCCURS FOR WHICH HE IS QUALIFIED
UNLESS THERE ARE PERSUASIVE REASONS FOR NOT DOING SO. HE FURTHER
DETERMINED THAT, TAKING THE RECORD AS A WHOLE, AT THE VERY LEAST
GRIEVANT WOULD HAVE BEEN PROMOTED TO A GS-14 POSITION WITHIN THE TWELVE
MONTHS FOLLOWING HIS ATTAINMENT OF THE GS-13 POSITION. AS HIS REMEDY,
THE ARBITRATOR ORDERED THAT THE GRIEVANT BE PROMOTED TO A GS-13 AND
GS-14 POSITIONS EFFECTIVE RETROACTIVELY TO SEPTEMBER 1, 1972, AND
SEPTEMBER 1, 1973, RESPECTIVELY. THE ARBITRATOR ADDITIONALLY ORDERED A
BACKPAY AWARD CONSISTENT WITH THE FOREGOING PROMOTIONS.
THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD WITH
THE COUNCIL ALLEGING, IN EFFECT, THAT THE AWARD OF RETROACTIVE PROMOTION
AND BACKPAY VIOLATES THE BACK PAY ACT (5 U.S.C. 5596) AND IMPLEMENTING
REGULATIONS PRESCRIBED BY THE CIVIL SERVICE COMMISSION. /2/ UNDER
SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE, THE COUNCIL
ACCEPTED THE AGENCY'S PETITION FOR REVIEW INSOFAR AS IT RELATED TO THAT
EXCEPTION. THE PARTIES FILED BRIEFS.
SECTION 2411.37(A) OF THE COUNCIL'S RULES OF PROCEDURE PROVIDES THAT:
(A) AN AWARD OF AN ARBITRATOR SHALL BE MODIFIED, SET ASIDE IN WHOLE
OR IN PART, OR REMANDED
ONLY ON GROUNDS THAT THE AWARD VIOLATES APPLICABLE LAW. APPROPRIATE
REGULATION, OR THE ORDER,
OR OTHER GROUNDS SIMILAR TO THOSE APPLIED BY THE COURTS IN PRIVATE
SECTOR LABOR-MANAGEMENT
RELATIONS.
AS PREVIOUSLY STATED, THE COUNCIL ACCEPTED THE AGENCY'S PETITION FOR
REVIEW INSOFAR AS IT RELATED TO THE EXCEPTION ALLEGING, IN EFFECT, THAT
THE ARBITRATOR'S AWARD OF RETROACTIVE PROMOTION AND BACKPAY VIOLATES THE
BACK PAY ACT (5 U.S.C. 5596) AND IMPLEMENTING REGULATIONS PRESCRIBED BY
THE CIVIL SERVICE COMMISSION. IN ACCORDANCE WITH ESTABLISHED COUNCIL
PRACTICE, THE COUNCIL REQUESTED AN INTERPRETATION FROM THE CIVIL SERVICE
COMMISSION OF THE RELEVANT STATUTE AND IMPLEMENTING REGULATIONS AS THEY
PERTAIN TO THE QUESTIONS RAISED IN THE INSTANT CASE. THE COMMISSION
REPLIED IN RELEVANT PART AS FOLLOWS:
IT IS OUR OPINION THAT WITHIN THE CONTEXT OF THE SERIES OF
COMPTROLLER GENERAL DECISIONS,
ALL NUMBERED B-180010, ISSUED SINCE OCTOBER 1974, PERMITTING
ARBITRATION AWARDS FOR
RETROACTIVE PROMOTION WITH BACK PAY TO BE PROCESSED UNDER 5 U.S.C.
5596, THE AWARD MADE IN THE
INSTANT CASE DOES NOT VIOLATE THE LAW OR IMPLEMENTING REGULATIONS.
WE BELIEVE, HOWEVER, THAT
THE AWARD IS TECHNICALLY DEFECTIVE WITH REGARD TO THE DATES THE
ARBITRATOR HAS ESTABLISHED FOR
THE RETROACTIVE PROMOTIONS. SINCE THE PRINCIPLE THAT GOVERNS THE
SETTING OF EFFECTIVE DATES
FOR RETROACTIVE PROMOTIONS WITH BACK PAY IS ENUNCIATED IN CG DECISION
B-180010, DATED DECEMBER
2, 1974, A DECISION WITH PARTICULAR RELEVANCE FOR THE FACTS OF THIS
CASE AND THE NATURE OF THE
AWARD, WE DO NOT BELIEVE THAT THERE IS ANY POINT AT ISSUE WHICH NEEDS
TO BE REFERRED TO THE
COMPTROLLER GENERAL FOR RESOLUTION.
IT IS PERTINENT AT THIS POINT TO ENUMERATE AND COMMENT UPON FACTS
DRAWN FROM THE FILE
TRANSMITTED WITH YOUR LETTER, WHICH HAVE A BEARING ON OUR
CONCLUSIONS. IT IS NOTED, FOR
EXAMPLE, THAT THE AGENCY SUBMITTED ITS FINAL BRIEF ON THE CASE TO THE
COUNCIL ON NOVEMBER 26,
1974. THIS BRIEF THEREFORE ANTEDATES THE PARTICULARLY RELEVANT COMP.
GEN. DECISION RENDERED
DECEMBER 2, 1974, CITED ABOVE.
THE AGENCY BASED ITS EXCEPTION TO THE AWARD IN THAT BRIEF IN LARGE
PART ON TWO POINTS:
1. THE COUNCIL'S DECISION, AFTER ITS REVIEW OF THE ARBITRATOR'S
AWARD IN FLRC NO. 73A-51,
THAT RETROACTIVE PROMOTION AND BACK PAY ARE NOT AUTHORIZED UNDER
CURRENT LAW AND REGULATIONS
WHERE AN AGENCY FAILS TO AFFORD PRIORITY CONSIDERATION (IT SHOULD BE
NOTED THAT THE COUNCIL
RELIED IN LARGE PART UPON THE ADVICE OF THIS OFFICE, BUT THAT BOTH
OUR ADVICE AND THE
COUNCIL'S DECISION WERE RENDERED PRIOR TO THE COMP. GEN. DECISION,
B-180010 OF OCTOBER 31,
1974. IT WAS THIS DECISION WHICH REVERSED THE GENERAL PROHIBITION ON
RETROACTIVE PROMOTION,
PROMULGATED AND REINFORCED OVER MANY YEARS BY PRIOR COMP. GEN.
DECISIONS.); AND
2. COMP. GEN. DECISION B-180010 OF OCTOBER 31, 1974, ITSELF; FOR
WHILE THIS DECISION
APPROVED A RETROACTIVE PROMOTION AWARDED BY AN ARBITRATOR, IT DID NOT
DEAL WITH THE FAILURE OF
THE AGENCY, AS IN THE INSTANT CASE, TO CONSIDER THE GRIEVANT
NONCOMPETITIVELY.
IT IS ALSO NOTED THAT THE AGENCY DOES NOT CONTEST THAT PART OF THE
ARBITRATION AWARD WHICH ORDERS THAT THE GRIEVANT BE PROMOTED, TO THE
EXTENT THAT SUCH PROMOTION IS PROSPECTIVE AND NOT RETROACTIVE. IN THIS
CONNECTION, THE AGENCY HAS CONCEDED THAT IT DID NOT GRANT THE GRIEVANT
THE PRIORITY, NONCOMPETITIVE CONSIDERATION WHICH IT WAS OBLIGATED TO
GRANT UNDER ITS REGULATION, ISSUED ON MARCH 3, 1972, AND UNDER THE
NEGOTIATED AGREEMENT IN WHICH THE RELEVANT REGULATION WAS SUBSEQUENTLY
INCORPORATED.
IN THE DECISIONS CITED COLLECTIVELY AS B-180010, THE COMPTROLLER
GENERAL HAS ESTABLISHED THE "BUT FOR" TEST FOR DETERMINING THE
ENTITLEMENT OF A GRIEVANT TO RETROACTIVE PROMOTION UNDER ARBITRATION
AWARDS. THE "BUT FOR" TEST IS INTENDED TO ESTABLISH A CLEAR CASUAL
RELATIONSHIP BETWEEN THE AGENCY VIOLATION AND THE ENTITLEMENT OF THE
GRIEVANT TO RETROACTIVE PROMOTION AND BACK PAY UNDER APPLICABLE LAW. IT
IS OUR OPINION THAT THIS TEST HAS BEEN MET IN THE INSTANT CASE.
ACCORDING TO THE ARBITRATOR, THE AGENCY CONCEDES THAT THE GRIEVANT WOULD
HAVE BEEN PROMOTED TO A GS-13 POSITION BUT FOR THE ERRORS WHICH IT
COMMITTED. HOWEVER, IT IS ALSO NOTED FROM THE ARBITRATION AWARD
NARRATIVE THAT THE AGENCY DID NOT CONCEDE BEFORE THE ARBITRATOR THAT THE
GRIEVANT WOULD NECESSARILY HAVE BEEN PROMOTED TO A GS-14, UNDER THE
REFERENCED AGENCY REGULATION. NEVERTHELESS, WE BELIEVE THE "BUT FOR"
TEST HAS BEEN MET FOR GS-14 AS WELL, BY VIRTUE OF THE AGENCY'S
STATEMENTS IN ITS ORIGINAL PETITION TO THE COUNCIL OF JULY 22, 1974,
THAT IT WAS COMPLYING WITH THAT PART OF THE AWARD WHICH DIRECTED
PROMOTION TO GS-14, ALTHOUGH NOT THAT PART DEALING WITH BACK PAY. BY
THUS AGREEING TO THE ORDER TO PROMOTE TO GS-14, ALBEIT PROSPECTIVELY,
THE AGENCY IN EFFECT AGREED THAT THE EMPLOYEE WOULD HAVE BEEN PROMOTED
TO GS-14, BUT FOR ITS UNWARRANTED PERSONNEL ACTION (I.E., ITS FAILURE TO
GRANT THE GRIEVANT PRIORITY CONSIDERATION FOR PROMOTION TO THAT GRADE).
IN THIS CONNECTION, IT IS PERTINENT TO QUOTE FROM DECISION B-180010,
DATED DECEMBER 2, 1974. THAT DECISION INVOLVES AN ARBITRATION AWARD
WITH REGARD TO A GRIEVANCE SIMILAR IN A FUNDAMENTAL WAY TO THE CASE AT
HAND, I.E., THE BASIC ISSUE WAS OVER THE FAILURE OF THE AGENCY TO GIVE
PRIORITY CONSIDERATION FOR PROMOTION TO THE GRIEVANT UNDER A
NONDISCRETIONARY PROVISION OF THE AGREEMENT. THE COMPTROLLER GENERAL
NOTED THAT THE ARBITRATOR FOUND THAT, HAD THE GRIEVANT BEEN AFFORDED
SUCH PRIORITY CONSIDERATION, HE WOULD HAVE BEEN PROMOTED. ON THIS
POINT, THE COMPTROLLER GENERAL SAID:
WE HAVE SOME QUESTION AS TO WHETHER THE FINDING BY THE ARBITRATOR
THAT MR. MIKEL WOULD HAVE
BEEN PROMOTED IS PROPERLY WITHIN HIS AUTHORITY UNDER EXECUTIVE ORDER.
HOWEVER, OF PRIME
IMPORTANCE IN THAT REGARD IS THE FACT THAT THE AGENCY DID NOT TAKE AN
EXCEPTION TO THE
ARBITRATOR'S FINDING THAT MR. MIKEL "WOULD HAVE BEEN PROMOTED,"
QUESTIONING ONLY THEIR
AUTHORITY TO GRANT THE ORDERED RETROACTIVE PROMOTION AND BACK PAY.
WE BELIEVE THAT THE FACT
THAT THE AGENCY CHOSE NOT TO TAKE AN EXCEPTION TO THE FINDING THAT
MR. MIKEL WOULD HAVE BEEN
PROMOTED BUT FOR ITS DENIAL OF PRIORITY CONSIDERATION WAS TANTAMOUNT
TO AN AGENCY
DETERMINATION THAT BUT FOR THEIR VIOLATION OF THE AGREEMENT IN NOT
GIVING MR. MIKEL PRIORITY
CONSIDERATION AFTER THEY HAD ORDERED HE BE GIVEN IT, HE WOULD HAVE
BEEN PROMOTED.
IN ANOTHER PART OF THAT DECISION, THE COMPTROLLER GENERAL TOOK ISSUE
WITH A PART OF THE AWARD WHICH HAS PARTICULAR SIGNIFICANCE FOR THE CASE
UNDER CONSIDERATION. THE ISSUE WAS THE EFFECTIVE DATE OF THE
RETROACTIVE PROMOTION. THE COMPTROLLER GENERAL SAID: "WE ARE AWARE OF
NO LEGAL BASIS UNDER WHICH MR. MIKEL COULD BE RETROACTIVELY PROMOTED
BACK TO THE SPECIFIC DATE SELECTED BY THE ARBITRATOR." HE ALSO NOTED
THAT THERE WAS NO CLEAR INDICATION FROM THE RECORD AS TO THE REASON FOR
THE ARBITRATOR'S CHOOSING THE DATE IN QUESTION. THE COMPTROLLER GENERAL
SELECTED ANOTHER DATE, AND IN THIS CONNECTION ENUNCIATED A PRINCIPLE
REGARDING APPROPRIATE EFFECTIVE DATES FOR IMPLEMENTING RETROACTIVE
PROMOTION ARBITRATION AWARDS.
THE PRINCIPLE MAY BE STATED THUSLY: WHEN AN ARBITRATOR'S AWARD IS
BASED ON A FINDING THAT THE AGENCY HAD NOT AFFORDED THE EMPLOYEE
PRIORITY CONSIDERATION FOR PROMOTION, WHICH IT WAS OBLIGATED TO DO
EITHER UNDER THE FEDERAL PERSONNEL MANUAL, THE AGENCY'S REGULATIONS OR A
NONDISCRETIONARY PROVISION OF THE NEGOTIATED AGREEMENT, THE EFFECTIVE
DATE OF THE RETROACTIVE PROMOTION MUST CONFORM WITH ONE OF THE DATES ON
WHICH A POSITION WAS FILLED FOR WHICH THE EMPLOYEE WAS ENTITLED TO SUCH
PRIORITY CONSIDERATION, BUT DID NOT RECEIVE IT. IN THIS CONNECTION IT
MUST ALSO BE CLEARLY ESTABLISHED THAT, BUT FOR THE WRONGFUL DENIAL OF
PRIORITY CONSIDERATION, THE EMPLOYEE IN QUESTION WOULD, IN FACT, HAVE
BEEN PROMOTED TO THAT POSITION.
IN THE INSTANT CASE, THE ARBITRATOR SELECTED TWO EFFECTIVE DATES, ONE
FOR RETROACTIVE PROMOTION TO GS-13 AND ANOTHER FOR RETROACTIVE PROMOTION
TO GS-14. THE FIRST DATE COINCIDES WITH THE EFFECTIVE DATE OF THE
NEGOTIATED AGREEMENT. (IN SO FAR AS REDRESS WAS SOUGHT FOR ANY PERIOD
PRECEDING THE EFFECTIVE DATE OF THE AGREEMENT, THE GRIEVANCE WAS
SPECIFICALLY DENIED.) THE SECOND DATE IS MERELY THE ANNIVERSARY OF THE
FIRST. WE CANNOT CONCUR IN EITHER OF THESE DATES, BECAUSE THE RATIONALE
USED BY THE ARBITRATOR IS APPARENTLY UNRELATED TO THE FILLING OF
SPECIFIC VACANCIES FOR WHICH THE GRIEVANT WOULD HAVE BEEN SELECTED BUT
FOR THE AGENCY'S VIOLATION OF ITS REGULATIONS AS INCORPORATED IN THE
NEGOTIATED AGREEMENT. IT IS OUR OPINION THAT THE AWARD, WHILE PROPER IN
ALL OTHER RESPECTS, CANNOT BE IMPLEMENTED UNTIL AND UNLESS THE EFFECTIVE
DATES FOR THE RETROACTIVE PROMOTIONS WITH BACK PAY ARE TIED TO THE
FILING OF SPECIFIC POSITIONS FOR WHICH THE EMPLOYEE WAS ENTITLED TO
PRIORITY NONCOMPETITIVE CONSIDERATION AND WOULD HAVE BEEN SELECTED BUT
FOR THE VIOLATION OF THAT ENTITLEMENT.
BASED UPON THE FOREGOING INTERPRETATION BY THE CIVIL SERVICE
COMMISSION, WE MUST CONCLUDE THAT IMPLEMENTATION OF THE ARBITRATOR'S
AWARD, INSOFAR AS IT DIRECTS THE RETROACTIVE PROMOTION WITH BACKPAY OF
THE GRIEVANT TO THOSE SPECIFIC DATES CHOSEN, A GS-13 POSITION EFFECTIVE
SEPTEMBER 1, 1972, AND A GS-14 POSITION EFFECTIVE SEPTEMBER 1, 1973, MAY
BE VIOLATIVE OF APPLICABLE LAW AND APPROPRIATE REGULATION AND,
THEREFORE, MUST BE MODIFIED.
FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2411.37(B) OF THE
COUNCIL'S RULES OF PROCEDURE, WE: (1) FIND THAT THE ARBITRATOR DID NOT
EXCEED HIS AUTHORITY INSOFAR AS DIRECTING RETROACTIVE PROMOTION WITH
BACKPAY AND (2) MODIFY THE AWARD BY ADDING THE FOLLOWING SENTENCE:
HOWEVER, THIS AWARD CANNOT BE IMPLEMENTED UNTIL AND UNLESS THE
EFFECTIVE DATES FOR THE
RETROACTIVE PROMOTIONS WITH BACKPAY ARE TIED TO THE FILLING OF
SPECIFIC POSITIONS FOR WHICH
THE EMPLOYEE WAS ENTITLED TO PRIORITY NONCOMPETITIVE CONSIDERATION
AND WOULD HAVE BEEN
SELECTED BUT FOR VIOLATION OF THAT ENTITLEMENT.
AS SO MODIFIED, /3/ THE AWARD IS SUSTAINED AND THE STAY OF THE AWARD
IS VACATED.
BY THE COUNCIL.
ISSUED: NOVEMBER 18, 1975
/1/ ACCORDING TO THE AWARD, THE PROMOTION PLAN PROVIDES IN PERTINENT
PART:
REPROMOTION OF AN EMPLOYEE TO A GRADE OR POSITION WHICH HE OCCUPIED
ON A NONTEMPORARY BASIS
AND FROM WHICH HE WAS DOWNGRADED IN THE FEDERAL SERVICE WITHOUT
PERSONAL CAUSE (I.E. WITHOUT
MISCONDUCT OR INEFFICIENCY ON THE PART OF THE EMPLOYEE) AND NOT AT
HIS REQUEST. ALTHOUGH SUCH
AN EMPLOYEE IS NOT GUARANTEED REPROMOTION, HE SHOULD ORDINARILY BE
REPROMOTED WHEN A VACANCY
OCCURS IN A POSITION AT HIS FORMER GRADE OR AT ANY INTERVENING GRADE
FOR WHICH HE HAS
DEMONSTRATED THAT HE IS WELL QUALIFIED, UNLESS THERE ARE PERSUASIVE
REASONS FOR NOT DOING
SO. CONSIDERATION OF AN EMPLOYEE ELIGIBLE FOR REPROMOTION UNDER
THESE CONDITIONS MUST PRECEDE
EFFORTS TO FILL THE VACANCY BY OTHER MEANS, INCLUDING COMPETITIVE
PROMOTION PROCEDURES. THE
EMPLOYMENT BRANCH WILL MAINTAIN A LIST OF SSA EMPLOYEES WHO HAVE BEEN
DOWNGRADED IN THE
FEDERAL SERVICE AND WHO ARE ELIGIBLE FOR REPROMOTION, AND WILL
CONSIDER THEM NON-COMPETITIVELY
FOR PROMOTION BEFORE ANNOUNCING ANY POSITION VACANCY FOR WHICH THEY
QUALIFY.
/2/ THE AGENCY REQUESTED AND THE COUNCIL GRANTED A STAY OF THE AWARD
PENDING THE DETERMINATION OF THE APPEAL PURSUANT TO SECTION 2411.47(D)
OF THE COUNCIL'S RULES OF PROCEDURE WHICH GOVERNED THE GRANTING OF STAYS
OF ARBITRATOR'S AWARDS WHEN THE STAY WAS ACTED UPON.
/3/ IT IS OF COURSE THE JOINT RESPONSIBILITY OF THE PARTIES TO
DETERMINE PROPER EFFECTIVE DATES OF THE RETROACTIVE PROMOTIONS IN ORDER
TO FURTHER IMPLEMENT THE AWARD AS MODIFIED.
3 FLRC 720; FLRC NO. 74A-29; NOVEMBER 18, 1975.
COMMUNITY SERVICES ADMINISTRATION
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL UNION NO. 2649
(SYNOPSIS) FLRC NO. 74A-29
COMMUNITY SERVICES ADMINISTRATION AND AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL UNION NO. 2649 (ROHMAN, ARBITRATOR). THE
ARBITRATOR DETERMINED THAT THE AGENCY'S FAILURE TO ACT ON RECOMMENDED
PROMOTIONS OF THE GRIEVANTS WITHIN THE TIME PROVIDED IN THE AGENCY'S
REGULATIONS VIOLATED THE PARTIES' AGREEMENT. AS A REMEDY, THE
ARBITRATOR, IN EFFECT, ORDERED THE RETROACTIVE PROMOTION OF THE
GRIEVANTS TO THE POSITIONS INVOLVED (WHICH WERE LATER AFFECTED BY AN
AGENCY REORGANIZATION) WITH BACKPAY TO THE TIME THE PROMOTIONS WOULD
HAVE BEEN EFFECTIVE UNDER THE AGENCY'S REGULATIONS. THE COUNCIL
ACCEPTED THE AGENCY'S PETITION FOR REVIEW INSOFAR AS IT ALLEGED THAT THE
AWARD, IN EFFECT, VIOLATES THE BACK PAY ACT (5 U.S.C. 5596) AND
IMPLEMENTING REGULATIONS. (REPORT NO. 57.)
COUNCIL ACTION (NOVEMBER 18, 1975). BASED UPON A DECISION OF THE
COMPTROLLER GENERAL, RENDERED IN RESPONSE TO THE COUNCIL'S REQUEST, THE
COUNCIL FOUND THAT THE AWARD, TO THE EXTENT THAT THE ARBITRATOR
DETERMINED THAT THE GRIEVANTS WERE ENTITLED TO RETROACTIVE PROMOTIONS,
DID NOT ITSELF VIOLATE APPLICABLE LAW OR APPROPRIATE REGULATION.
HOWEVER, THE COUNCIL FURTHER FOUND THAT THE AWARD OF BACKPAY TO THE
GRIEVANTS FOR THE PERIOD AFTER THE DATE SET BY THE ARBITRATOR MAY BE
VIOLATIVE OF APPLICABLE LAW OR APPROPRIATE REGULATION DEPENDING UPON
WHETHER AND WHEN THE GRIEVANTS WOULD HAVE BEEN PROPERLY DEMOTED BY THE
AGENCY BY REASON OF SUBSEQUENT EVENTS, PARTICULARLY THE REORGANIZATION
OF THE AGENCY. ACCORDINGLY, PURSUANT TO SECTION 2411.37(B) OF ITS RULES
OF PROCEDURE, THE COUNCIL SUSTAINED THE AWARD AS MODIFIED BY A PROVISION
THAT THE AWARD CANNOT BE IMPLEMENTED UNLESS AND UNTIL THE TERMINATION
DATES, IF ANY, OF THE GRIEVANTS' ENTITLEMENTS FIRST BE DETERMINED.
BASED UPON THE FINDINGS OF THE ARBITRATOR AND THE ENTIRE RECORD, THE
CIRCUMSTANCES OF THE CASE APPEAR AS FOLLOWS:
ON SEPTEMBER 12, 1973, RECOMMENDATIONS FOR THE PROMOTION OF MR.
FRANK GALLARDO AND MR. ROY BROOKS TO GS-13 WERE TRANSMITTED, FOLLOWING
PROCEDURAL CLEARANCE BY THE REGIONAL PERSONNEL OFFICE, TO THE DIRECTOR
OF REGION VI OF THE COMMUNITY SERVICES ADMINISTRATION (THE AGENCY). /1/
WHEN THE REGIONAL DIRECTOR TOOK NO FURTHER ACTION ON THE
RECOMMENDATIONS, THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
NO. 2649 (THE UNION), ON SEPTEMBER 27, 1973, FILED A GRIEVANCE. ON
OCTOBER 28, 1973, WHILE THIS GRIEVANCE WAS PENDING, REGION VI WAS
REORGANIZED. SIMULTANEOUSLY, THE TWO GRIEVANTS, WHOSE POSITIONS AND
DUTIES WERE ABOLISHED IN THE REORGANIZATION, WERE REASSIGNED TO OTHER
POSITIONS AT THEIR SAME GRADE LEVELS AND THE RECOMMENDATIONS FOR THEIR
PROMOTIONS WERE WITHDRAWN. THE GRIEVANCE ITSELF PROCEEDED TO
ARBITRATION.
THE ARBITRATOR CONCLUDED THAT THE REGIONAL DIRECTOR'S FAILURE TO ACT
ON THE PROMOTION RECOMMENDATIONS DURING THE 45 DAYS PRIOR TO THE
REORGANIZATION CONTRAVENED THE REQUIREMENTS OF THE AGENCY'S OWN
REGULATIONS /2/ (INCORPORATED BY REFERENCE IN THE NEGOTIATED AGREEMENT)
AND, THEREFORE, CONSTITUTED A VIOLATION OF ARTICLE 2, SECTION 2, OF THE
PARTIES' NEGOTIATED AGREEMENT, WHICH PROVIDES AS FOLLOWS:
THE PARTIES AGREE THAT THEY WILL PROCEED IN ACCORDANCE WITH AND ABIDE
BY ALL FEDERAL LAWS,
APPLICABLE STATE LAWS, REGULATIONS OF THE EMPLOYER, AND THIS
AGREEMENT, IN MATTERS RELATING TO
THE EMPLOYMENT OF EMPLOYEES COVERED BY THIS AGREEMENT.
THE ARBITRATOR SUSTAINED THE GRIEVANCE AND, IN SO DOING, APPEARS TO
HAVE ADOPTED THE REMEDY SOUGHT BY THE UNION: I.E., THE PROMOTION OF
BOTH GRIEVANTS TO GS-13 WITH BACKPAY RETROACTIVE TO SEPTEMBER 23, 1973.
THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD WITH
THE COUNCIL, ALLEGING, AMONG OTHER GROUNDS, THAT THE AWARD IN EFFECT
VIOLATES THE BACK PAY ACT (5 U.S.C. 5596) AND IMPLEMENTING REGULATIONS.
THE COUNCIL ACCEPTED THE AGENCY'S PETITION FOR REVIEW AND GRANTED THE
AGENCY'S REQUEST FOR A STAY PENDING DETERMINATION OF THE APPEAL.
NEITHER PARTY FILED A BRIEF.
SECTION 2411.37(A) OF THE COUNCIL'S RULES OF PROCEDURE PROVIDES, IN
PERTINENT PART, THAT "(A)N AWARD OF AN ARBITRATOR SHALL BE MODIFIED, SET
ASIDE IN WHOLE OR IN PART, OR REMANDED . . . ON GROUNDS THAT THE AWARD
VIOLATES APPLICABLE LAW (OR) APPROPRIATE REGULATION . . . "
AS PREVIOUSLY NOTED, THE AGENCY CONTENDS THAT THE ARBITRATOR'S AWARD
OF RETROACTIVE PROMOTION AND BACKPAY IN EFFECT VIOLATES THE BACK PAY ACT
AND IMPLEMENTING REGULATIONS. SINCE THIS CASE CONCERNS ISSUES WITHIN
THE JURISDICTION OF THE COMPTROLLER GENERAL'S OFFICE, THE COUNCIL
REQUESTED FROM HIM A DECISION AS TO THE APPLICABILITY OF PRIOR
COMPTROLLER GENERAL DECISIONS TO THE FACTS OF THIS CASE, ESPECIALLY AS
TO WHETHER THE ARBITRATOR'S AWARD OF BACKPAY MAY LEGALLY BE IMPLEMENTED.
THE COMPTROLLER GENERAL'S DECISION IN THE MATTER, B-180010, NOVEMBER 4,
1975, IS SET FORTH IN RELEVANT PART AS FOLLOWS:
THIS ACTION INVOLVES A REQUEST FOR AN ADVANCE DECISION FROM THE
FEDERAL LABOR RELATIONS
COUNCIL FLRC) AS TO THE LEGALITY OF TWO RETROACTIVE PROMOTIONS WITH
BACKPAY AWARDED BY AN
ARBITRATOR IN THE MATTER OF COMMUNITY SERVICES ADMINISTRATION AND
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL UNION NO. 2649 (ROHMAN, ARBITRATOR), FLRC
NO. 74A-29. THE CASE IS
BEFORE THE COUNCIL AS A RESULT OF A PETITION FOR REVIEW FILED BY THE
AGENCY ALLEGING THAT THE
AWARD VIOLATES APPLICABLE LAWS AND REGULATIONS. THE NAME OF THE
AGENCY WAS OFFICIALLY CHANGED
FROM THE OFFICE OF ECONOMIC OPPORTUNITY (OEO) TO THE COMMUNITY
SERVICES ADMINISTRATION DURING
THE PENDENCY OF THE PROCEEDINGS IN THIS CASE.
ON SEPTEMBER 12, 1973, RECOMMENDATIONS FOR PROMOTION TO GRADE GS-13
OF MR. FRANK GALLARDO
AND MR. ROY BROOKS, THE GRIEVANTS IN THIS CASE, WERE SUBMITTED BY
PROPER AUTHORITY TO THE
REGIONAL PERSONNEL OFFICE OF THE AGENCY. THAT OFFICE REVIEWED THE
RECOMMENDATIONS TO DISCOVER
WHETHER THE GRIEVANTS SATISFIED THE CRITERIA FOR PROMOTION TO THE
HIGHER GRADE AND DETERMINED
THAT BOTH MEN FULFILLED THE ELIGIBILITY REQUIREMENTS. THE
RECOMMENDATIONS WERE THEN FORWARDED
TO THE REGIONAL DIRECTOR FOR APPROVAL. NO ACTION WAS TAKEN BY THE
REGIONAL DIRECTOR AND THE
TWO GRIEVANTS WERE NOT PROMOTED. ON SEPTEMBER 27, 1973, THE UNION
FILED A GRIEVANCE ON BEHALF
OF NUMEROUS EMPLOYEES ALLEGING THAT THE AGENCY HAD VIOLATED VARIOUS
SECTIONS OF THE
COLLECTIVE-BARGAINING AGREEMENT. MANY OF THE DIFFERENCES WERE
SETTLED BY THE PARTIES, BUT THE
GRIEVANCES OF MESSRS. GALLARDO AND BROOKS PROCEEDED TO ARBITRATION.
THE ARBITRATOR, ON APRIL 3, 1974, FOUND THAT THE AGENCY'S FAILURE TO
COMPLY WITH ITS OWN
REGULATION (INCORPORATED BY REFERENCE INTO THE NEGOTIATED AGREEMENT)
REQUIRING AN 8-DAY TIME
FRAME FOR PROCESSING PROMOTION RECOMMENDATIONS, WAS A VIOLATION OF
THE NEGOTIATED
AGREEMENT. HE, THEREFORE, SUSTAINED THE GRIEVANCE AND ORDERED
RETROACTIVE PROMOTIONS AND
RETROACTIVE PAY FOR BOTH GRIEVANTS FROM SEPTEMBER 23, 1973.
IN 54 COMP.GEN. 403 (1974) THIS OFFICE CONSIDERED A REQUEST FROM THE
OFFICE OF ECONOMIC
OPPORTUNITY INVOLVING THE SAME AGREEMENT, AND THE SAME REGULATION.
WE THERE STATED OUR VIEW
THAT THE ARBITRATOR'S AUTHORITY TO INTERPRET THE PROVISIONS OF A
COLLECTIVE-BARGAINING
AGREEMENT UNDER SECTION 13 OF EXECUTIVE ORDER NO. 11491, 3 C.F.R.P.
254, EXTENDS TO THE
INTERPRETATION OF THE AGENCY'S REGULATIONS WHEN THEY HAVE BEEN
INCORPORATED BY REFERENCE INTO
THE AGREEMENT. WE ADDED, HOWEVER, THAT THE ARBITRATOR'S VIEWS DID
NOT NECESSARILY TAKE
PRECEDENCE OVER THE AGENCY'S OWN INTERPRETATION WHICH GENERALLY
SHOULD BE ACCORDED GREAT
DEFERENCE. NEVERTHELESS, SINCE OEO HAD NOT TAKEN AN EXCEPTION TO THE
ARBITRATOR'S
INTERPRETATION TO THE FEDERAL LABOR RELATIONS COUNCIL UNDER EXECUTIVE
ORDER NO. 11491, WE
PRESUMED ITS ACQUIESCENCE WITH THE ARBITRATOR'S FINDINGS AND
INTERPRETATIONS. AND FOR THE
THREE EMPLOYEES INVOLVED THEREIN, WE HELD THAT OEO COULD LEGALLY
IMPLEMENT THE ARBITRATOR'S
AWARD OF BACKPAY.
IN THE PRESENT CASE, THE OEO, NOW THE COMMUNITY SERVICES
ADMINISTRATION, FILED A TIMELY
PETITION WITH THE FEDERAL LABOR RELATIONS COUNCIL FOR REVIEW OF THE
ARBITRATOR'S AWARD. THE
COUNCIL HAS ACCEPTED THE PETITION AND IS CONSIDERING THE ISSUE RAISED
PRIOR TO RENDERING A
DECISION ON THE AWARD.
ARTICLE 2, SECTION 2, OF THE COLLECTIVE BARGAINING AGREEMENT PROVIDES
THAT THE PARTIES WILL
ABIDE BY: "ALL FEDERAL LAWS, APPLICABLE STATE LAWS, REGULATIONS OF
THE EMPLOYER, AND THIS
AGREEMENT, IN MATTERS RELATING TO THE EMPLOYMENT OF EMPLOYEES COVERED
BY THIS
AGREEMENT." HENCE, THE NEGOTIATED AGREEMENT INCORPORATED BY REFERENCE
THE EXISTING AGENCY
REGULATIONS, INCLUDING OEO STAFF MANUAL 250-2, WHICH SET FORTH THE
TIME FRAMES FOR PERSONNEL
ACTIONS AS FOLLOWS:
"TO EXPEDITE THE PROCESSING OF STANDARD FORM 52 THROUGH THE VARIOUS
STEPS, THE FOLLOWING
TIME FRAMES HAVE BEEN ESTABLISHED. THEY ARE APPLICABLE ONLY IF THE
REQUEST FOLLOWS A ROUTINE
SCHEDULE. THIS MEANS THAT ALL NECESSARY FORMS, DOCUMENTS AND
ADDITIONAL MEMORANDA ARE
PROPERLY SIGNED AND RECEIVED IN PERSONNEL WITH THE REQUEST AND THAT
NO CHANGES BE MADE BY THE
REQUESTING OFFICE."
THE VARIOUS KINDS OF ROUTINE PERSONNEL ACTIONS ARE ALLOTTED SPECIFIC
TIME FRAMES IN WHICH
THEY ARE TO BE PROCESSED. RECOMMENDATIONS FOR PROMOTIONS ARE TO BE
PROCESSED IN 8 DAYS. THE
UNION'S GRIEVANCE IS PREDICATED UPON THE FAILURE OF THE AGENCY TO
ABIDE BY THE AFOREMENTIONED
TIME FRAME.
THE AGENCY CONTENDED AT THE ARBITRATION PROCEEDING AND IN ITS REVIEW
PETITION THAT THE
ABOVE-QUOTED REGULATION BY ITS TERMS APPLIED ONLY TO ROUTINE
PERSONNEL ACTIONS. IT ARGUED
THAT THE OCTOBER 1973 REORGANIZATION AND THE STUDY THAT PRECEDED IT
SERVED TO REMOVE THE
PROMOTION ACTIONS HERE IN QUESTION FROM THE ROUTINE CATEGORY.
THE ISSUE INVOLVED IN THIS CASE, THEN, IS WHETHER THESE PROMOTION
ACTIONS WERE ROUTINE
WITHIN THE MEANING OF THE REGULATION.
IT IS A GENERAL PRINCIPLE OF ADMINISTRATIVE LAW THAT AN AGENCY'S
CONSTRUCTION AND
INTERPRETATION OF ITS OWN REGULATIONS WILL GENERALLY BE ACCORDED
GREAT DEFERENCE BY A COURT OR
REVIEWING AUTHORITY. UDALL V. TALLMAN, 380 U.S. 1 (1964); BOWLES V.
SEMINOLE ROCK CO., 325
U.S. 410 (1944). ACCORDINGLY, WE THINK THAT ARBITRATORS MUST ACCORD
GREAT WEIGHT TO AN
AGENCY'S INTERPRETATION OF ITS OWN REGULATIONS, NOTWITHSTANDING THE
FACT THAT SUCH REGULATIONS
HAVE BEEN INCORPORATED BY REFERENCE IN A NEGOTIATED AGREEMENT.
HOWEVER, IT IS ALSO A GENERAL
PRINCIPLE OF LAW THAT WHERE THE LANGUAGE OF A STATUTE OR A REGULATION
IS PLAIN ON ITS FACE AND
ITS MEANING IS CLEAR, THERE IS NO ROOM FOR INTERPRETATION OR
CONSTRUCTION BY THE REVIEWING
AUTHORITY. SHEA V. VIALPANDO, 416 U.S. 251 (1974); LEWIS, TRUSTEE
V. UNITED STATES, 92
U.S. 618 (1875); UNITED STATES V. TURNER, 246 F.2D 228 (1957).
IN THE PRESENT CASE, THE ARBITRATOR FOUND THAT THE ABOVE-QUOTED
REGULATION REGARDING TIME
FRAMES FOR PERSONNEL ACTIONS WAS PLAIN ON ITS FACE. HE POINTS OUT
THAT THE SENTENCE, "(T)HEY
ARE APPLICABLE ONLY IF THE REQUEST FOLLOWS A ROUTINE SCHEDULE" IS
FOLLOWED BY A CLEAR AND
EXPLICIT DEFINITION OF WHAT "ROUTINE SCHEDULE" MEANS, TO WIT: "THAT
ALL NECESSARY FORMS,
DOCUMENTS AND ADDITIONAL MEMORANDA ARE PROPERLY SIGNED AND RECEIVED
IN PERSONNEL WITH THE
REQUEST." WE AGREE WITH THE ARBITRATOR THAT THE REGULATION IN
QUESTION IS PLAIN ON ITS FACE
AND DOES NOT REQUIRE INTERPRETATION OR CONSTRUCTION AS TO THE MEANING
OF "ROUTINE
SCHEDULE"; SUCH MEANING HAVING BEEN ALREADY SUPPLIED BY THE
SELF-CONTAINED DEFINITION. THUS,
THE AGENCY'S ATTEMPT TO GIVE THE TERM "ROUTINE SCHEDULE" A MEANING AT
VARIANCE WITH THE
DEFINITION IN THE REGULATION MUST NECESSARILY FAIL.
IN OUR RECENT CASES WE HAVE HELD THAT A VIOLATION OF A MANDATORY
PROVISION IN A NEGOTIATED
AGREEMENT WHICH CAUSES AN EMPLOYEE TO LOSE PAY, ALLOWANCES, OR
DIFFERENTIALS IS AS MUCH AN
UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION AS IS AN IMPROPER
SUSPENSION, FURLOUGH WITHOUT
PAY, DEMOTION OR REDUCTION IN PAY, PROVIDED THE PROVISION WAS
PROPERLY INCLUDED IN THE
AGREEMENT. 54 COMP.GEN. 312 (1974), 54 ID. 403 (1974), 54 ID. 435
(1974), AND 54 ID. 538
(1974). THUS THE BACK PAY ACT OF 1966, 5 U.S.C. 5596 (1970), IS THE
APPROPRIATE STATUTORY
AUTHORITY FOR COMPENSATING THE EMPLOYEE FOR PAY, ALLOWANCES, OR
DIFFERENTIALS HE WOULD HAVE
RECEIVED, BUT FOR THE VIOLATION OF THE NEGOTIATED AGREEMENT.
BEFORE ANY MONETARY PAYMENT MAY BE MADE UNDER THE PROVISIONS OF 5
U.S.C. 5596 (1970), THERE
MUST BE A DETERMINATION NOT ONLY THAT AN EMPLOYEE HAS UNDERGONE AN
UNJUSTIFIED OR UNWARRANTED
PERSONNEL ACTION, BUT ALSO THAT SUCH ACTION DIRECTLY RESULTED IN A
WITHDRAWAL OF PAY,
ALLOWANCES, OR DIFFERENTIALS, AS DEFINED IN APPLICABLE CIVIL SERVICE
REGULATIONS. ALTHOUGH
EVERY PERSONNEL ACTION WHICH DIRECTLY AFFECTS AN EMPLOYEE AND IS
DETERMINED TO BE A VIOLATION
OF THE NEGOTIATED AGREEMENT MAY ALSO BE CONSIDERED TO BE AN
UNJUSTIFIED OR UNWARRANTED
PERSONNEL ACTION, THE REMEDIES UNDER THE BACK PAY ACT ARE NOT
AVAILABLE UNLESS IT IS ALSO
ESTABLISHED THAT, BUT FOR THE WRONGFUL ACTION, THE WITHDRAWAL OF PAY,
ALLOWANCES, OR
DIFFERENTIALS WOULD NOT HAVE OCCURRED. 54 COMP.GEN. 760 (1975).
IN LIGHT OF THE FOREGOING, IT IS THE OBLIGATION OF THE ARBITRATOR NOT
ONLY TO FIND THAT THE
NEGOTIATED AGREEMENT HAS BEEN VIOLATED BY AGENCY ACTION OR INACTION
AND THAT THEREBY THE
GRIEVANTS UNDERWENT AN UNJUSTIFIED PERSONNEL ACTION, BUT ALSO TO FIND
THAT SUCH IMPROPER
ACTION DIRECTLY CAUSED THE GRIEVANTS TO SUFFER A LOSS OR REDUCTION IN
PAY, ALLOWANCES, OR
DIFFERENTIALS.
IN THE PRESENT CASE, THE ARBITRATOR HAS FOUND THAT THE GRIEVANT'S
PROMOTION RECOMMENDATIONS
WERE NOT PROCESSED WITHIN THE REQUIRED TIME FRAME. THE ARBITRATOR
STATED ON THE RECORD THAT
"(T)HE EMPLOYER CONCEDES THAT THE PROMOTIONS WOULD HAVE TAKEN EFFECT
* * * ." ALSO, THE
ARBITRATOR FOUND THAT THIS IMPROPER PERSONNEL ACTION VIOLATED THE
NEGOTIATED
COLLECTIVE-BARGAINING AGREEMENT.
ALTHOUGH THE AWARD STATES ONLY THAT THE GRIEVANCE IS SUSTAINED, WE
ASSUME THAT THE
ARBITRATOR INTENDED TO INCORPORATE BY REFERENCE IN HIS AWARD THE
SECOND PARAGRAPH OF PAGE 2 OF
HIS DECISION, WHICH READS AS FOLLOWS:
"IN THE EVENT THE GRIEVANCE IS SUSTAINED, THE REMEDY AS REQUESTED BY
THE UNION SHOULD
PROVIDE FOR RETROACTIVE PROMOTION FOR BOTH GRIEVANTS, AS WELL AS
RETROACTIVE PAY FROM
SEPTEMBER 23, 1973."
FROM THE FOREGOING IT APPEARS THAT THE ARBITRATOR INTENDED TO AWARD
THE GRIEVANTS RETROACTIVE PROMOTIONS TO GRADE GS-13 WITH AN EFFECTIVE
DATE OF SEPTEMBER 23, 1973. IN THE USUAL CASE SUCH AN AWARD WOULD BE
SUFFICIENTLY DEFINITE TO PERMIT ITS IMPLEMENTATION, INASMUCH AS THE
ENTITLEMENT TO A PROMOTION IS DEEMED TO CONTINUE IN THE ABSENCE OF
EVIDENCE TO THE CONTRARY. HOWEVER, IN THE PRESENT CASE WE FIND
SUBSTANTIAL EVIDENCE TO SHOW THAT THE TWO EMPLOYEES' ENTITLEMENT TO
THEIR GRADE GS-13 PROMOTIONS WOULD HAVE BEEN TERMINATED SHORTLY AFTER
THEY WERE RECEIVED AS A RESULT OF A REORGANIZATION IN THE REGIONAL
OFFICE. THE ARBITRATOR EXPRESSED RECOGNITION OF THIS FACT ON PAGE 10 OF
HIS DECISION WHEN HE STATED:
"THE FACT THAT THE REORGANIZATION DETERMINED THAT VACANCIES NO LONGER
EXISTED AT THE HIGHER
GRADE LEVEL IS A CONDITION SUBSEQUENT WHICH DID NOT AFFECT THE
PROCESSING OF THE
RECOMMENDATIONS WITHIN THE EIGHT DAY TIME FRAME."
THE AGENCY'S PETITION TO THE FEDERAL LABOR RELATIONS COUNCIL FOR
REVIEW OF THE ARBITRATION
AWARD STATES, AT PAGE 4, THAT THE REORGANIZATION BECAME EFFECTIVE
OCTOBER 28, 1973, AND THE
POSITIONS HELD BY THE TWO GRIEVANTS WERE ABOLISHED. ACCORDINGLY, THE
AGENCY CONCLUDES THAT IF
THE ARBITRATOR'S AWARD IS ALLOWED TO STAND AND THE AGENCY IS REQUIRED
TO EFFECT PROMOTIONS AS
OF SEPTEMBER 23, 1973, IT WOULD ALSO BE REQUIRED BY THE POSITION
CLASSIFICATION ACT TO TAKE
SIMULTANEOUS ACTION DEMOTING THEM AS OF OCTOBER 27, 1973.
THE RECORD BEFORE US DOES NOT CONTAIN EVIDENCE AS TO WHAT RIGHTS, IF
ANY, THESE TWO
EMPLOYEES MAY HAVE HAD TO RETAIN THEIR HIGHER GRADES BEYOND THE DATE
ON WHICH THE POSITIONS TO
WHICH THEY SHOULD HAVE BEEN PROMOTED WERE ABOLISHED AS A RESULT OF
THE
REORGANIZATION. REDUCTION-IN-FORCE PROCEDURES CONTAINED IN 5 C.F.R.,
PART 351 (1972), ARE
APPLICABLE TO DEMOTIONS THAT ARE REQUIRED BECAUSE OF REORGANIZATIONS.
THE APPLICATION OF
THESE PROCEDURES TO THE EMPLOYEES HERE INVOLVED MIGHT HAVE PERMITTED
THEM TO HAVE RETAINED
THEIR HIGHER GRADES BEYOND THE OCTOBER 27, 1973 DATE AND MIGHT HAVE
ALLOWED THEM TO AVOID
DEMOTION ALTOGETHER. THEREFORE, THE EVIDENCE IN THE PRESENT RECORD
IS INSUFFICIENT TO SHOW IF
AND WHEN SUCH DEMOTIONS WOULD HAVE OCCURRED.
HENCE, WE ARE OF THE OPINION THAT THE ARBITRATOR'S AWARD IS TOO
INDEFINITE TO PERMIT
IMPLEMENTATION, INASMUCH AS THE RECORD CONTAINS SUBSTANTIAL EVIDENCE
THAT THE GRIEVANTS MAY
HAVE BEEN DEMOTED. WHERE AN AWARD IS TOO INDEFINITE TO IMPLEMENT,
SUCH AS HERE, THE REVIEWING
AUTHORITY SHOULD, IF FEASIBLE, RESUBMIT THE DEFECTIVE AWARD TO THE
ARBITRATOR FOR APPROPRIATE
CORRECTIVE ACTION. ENTERPRIZE WHEEL AND CAR CORP. V. UNITED
STEELWORKERS, 269 F.2D 327 (4TH
CIR. 1959), APPROVED IN PART 363 U.S. 593 (1960), NATIONAL
BROTHERHOOD PACKINGHOUSE AND DAIRY
WORKERS LOCAL NO. 52 V. WESTERN IOWA PORK COMPANY INC., 247 F.SUPP.
663 (1965), AFFIRMED 366
F.2D 275 (8TH CIR. 1966).
IN VIEW OF THESE FACTS, THE ARBITRATOR HAS AN OBLIGATION TO ESTABLISH
A TERMINATION DATE,
AS WELL AS AN EFFECTIVE DATE, OF THE GRIEVANTS' ENTITLEMENT TO GRADE
GS-13 PAY. WE ARE OF THE
OPINION THAT THE ARBITRATOR'S AWARD MUST CONFORM TO THE EVIDENCE IN
THE RECORD AS TO WHAT THE
GRIEVANTS' ENTITLEMENTS SHOULD HAVE BEEN, BUT FOR THE UNJUSTIFIED AND
UNWARRANTED PERSONNEL
ACTIONS. THEREFORE, THE AWARD SHOULD BE REMANDED TO THE ARBITRATOR
FOR FURTHER PROCEEDINGS
WITH INSTRUCTIONS THAT HE HEAR EVIDENCE ON WHETHER THE GRIEVANTS
WOULD HAVE BEEN DEMOTED AND
IF SO, TO FASHION AN AWARD SETTING A DEFINITE DATE OF DEMOTION.
BASED UPON THE FOREGOING DECISION BY THE COMPTROLLER GENERAL, WE
SUSTAIN THE ARBITRATOR'S AWARD, FINDING THAT THE GRIEVANTS WERE ENTITLED
TO RETROACTIVE PROMOTION TO GS-13 EFFECTIVE SEPTEMBER 23, 1973.
HOWEVER, IMPLEMENTATION OF THE AWARD, WHICH PROVIDES FOR BACKPAY ON AND
AFTER THAT DATE, MAY BE VIOLATIVE OF APPLICABLE LAW AND REGULATIONS
CONTINGENT ON WHETHER AND WHEN THE GRIEVANTS WOULD HAVE BEEN DEMOTED BY
REASON OF SUBSEQUENT EVENTS, PARTICULARLY THE REORGANIZATION OF THE
AGENCY ON OCTOBER 28, 1973. ACCORDINGLY, WE SHALL ORDER THAT THE
SUBJECT AWARD BE SUSTAINED IN PART AND MODIFIED IN PART.
FOR THE REASONS DISCUSSED ABOVE, AND PURSUANT TO SECTION 2411.37(B)
OF THE COUNCIL'S RULES OF PROCEDURE, WE FIND THAT THE ARBITRATOR'S
AWARD, INSOFAR AS IT DETERMINED THAT THE GRIEVANTS IN THIS CASE WERE
ENTITLED TO RETROACTIVE PROMOTION TO GS-13, EFFECTIVE ON SEPTEMBER 23,
1973, DOES NOT ITSELF VIOLATE APPLICABLE LAW OR APPROPRIATE REGULATION,
AND IS HEREBY SUSTAINED.
HOWEVER, WE FURTHER FIND THAT THE ARBITRATOR'S AWARD OF BACKPAY TO
THE GRIEVANTS FROM SEPTEMBER 23, 1973, MAY BE VIOLATIVE OF APPLICABLE
LAW OR APPROPRIATE REGULATION DEPENDING UPON WHETHER AND WHEN THE
GRIEVANTS WOULD HAVE BEEN PROPERLY DEMOTED BY THE AGENCY. /3/
ACCORDINGLY, THE AWARD IS MODIFIED BY ADDING TO IT THE FOLLOWING
SENTENCE:
HOWEVER, THIS AWARD CANNOT BE IMPLEMENTED UNLESS AND UNTIL THE
TERMINATION DATES, IF ANY,
OF THE GRIEVANTS' ENTITLEMENTS TO THE GS-13 PAY WHICH THEY WOULD HAVE
RECEIVED BUT FOR THE
AGENCY'S UNJUSTIFIED AND UNWARRANTED PERSONNEL ACTIONS FIRST BE
DETERMINED.
AS SO MODIFIED, THE AWARD IS SUSTAINED AND THE STAY OF THE AWARD IS
VACATED.
BY THE COUNCIL.
ISSUED: NOVEMBER 18, 1975
/1/ THE NAME OF THE AGENCY APPEARS AS OFFICIALLY CHANGED DURING THE
PENDENCY OF THIS PROCEEDING.
/2/ IN HIS OPINION, THE ARBITRATOR IDENTIFIES THE SPECIFIC REGULATION
INVOLVED AS "OEO STAFF MANUAL 250-2," AND FINDS THAT THIS REGULATION
IMPOSED UPON THE REGIONAL DIRECTOR A TIME LIMIT OF 8 DAYS WITHIN WHICH
TO PROCESS THE GRIEVANTS' RECOMMENDATIONS FOR PROMOTION.
/3/ IF THE PARTIES CANNOT AGREE ON THE TERMINATION DATES, IF ANY, OF
THE GRIEVANTS' ENTITLEMENTS, THEY ARE DIRECTED TO RESUBMIT THE MATTER TO
THE ARBITRATOR FOR DISPOSITION CONSISTENT WITH THIS DECISION. IT IS
UNDERSTOOD, HOWEVER, THAT IF IN THE PROCESS OF RECONSTRUCTING THE IMPACT
OF THE 1973 REORGANIZATION ON THE GRIEVANTS' ENTITLEMENTS TO GS-13 PAY,
IT IS DETERMINED THAT THEY WERE AFFECTED BY A REDUCTION-IN-FORCE ACTION,
THEIR RIGHTS, IF ANY, TO RETAIN THEIR HIGHER GRADES WOULD BE SUBJECT TO
DETERMINATION THROUGH THE APPEALS PROCEDURES CONTAINED IN 5 CFR 351.901
AND WOULD NOT BE SUBJECT TO RESUBMISSION TO THE ARBITRATOR, FOR SECTION
13(A) OF THE ORDER PROVIDES, IN EFFECT, THAT THE NEGOTIATED GRIEVANCE
PROCEDURE, INCLUDING ARBITRATION THEREUNDER, "MAY NOT COVER MATTERS FOR
WHICH A STATUTORY APPEALS PROCEDURE EXISTS."
3 FLRC 713; FLRC NO. 75A-30; NOVEMBER 14, 1975.
MR. PHILIP COLLINS, COUNSEL
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES
285 DORCHESTER AVENUE
BOSTON, MASSACHUSETTS 02127
(SYNOPSIS) FLRC NO. 75A-30
FRANCES N. KENNY AND NATIONAL WEATHER SERVICE (LUBOW, ARBITRATOR).
THE ARBITRATOR, IN HIS AWARD, DETERMINED THAT THE AGENCY DID NOT VIOLATE
ITS COLLECTIVE BARGAINING AGREEMENT WITH THE NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES IN THE HOLIDAY SCHEDULING OF THE INDIVIDUAL
GRIEVANT. THE UNION FILED EXCEPTIONS TO THE AWARD, CONTENDING, IN
EFFECT, THAT (1) THE ARBITRATOR DEPRIVED THE UNION OF DUE PROCESS; AND
(2) THE ARBITRATOR'S AWARD FAILS TO DRAW ITS ESSENCE FROM THE PARTIES'
AGREEMENT AND THE ARBITRATOR EXCEEDED THE SCOPE OF HIS AUTHORITY.
COUNCIL ACTION (NOVEMBER 14, 1975). THE COUNCIL HELD THAT THE
UNION'S PETITION DID NOT PRESENT FACTS AND CIRCUMSTANCES NECESSARY TO
SUPPORT ITS EXCEPTIONS. ACCORDINGLY, THE COUNCIL DENIED REVIEW OF THE
UNION'S PETITION BECAUSE IT FAILED TO MEET THE REQUIREMENTS FOR REVIEW
SET FORTH IN SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE.
DEAR MR. COLLINS:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF AN
ARBITRATOR'S AWARD IN THE ABOVE-ENTITLED CASE.
THE AWARD SHOWS THAT IN THE PITTSBURGH OFFICE OF THE EASTERN REGION
OF THE NATIONAL WEATHER SERVICE, THE OFFICER IN CHARGE ("OIC") ARRANGES
THE EMPLOYEE WORK SCHEDULES PURSUANT TO ARTICLE XV OF THE PARTIES'
AGREEMENT /1/ BY FIRST PREPARING A LONG-TERM GUIDANCE SCHEDULE, FROM
WHICH A SHORT-TERM WORK SCHEDULE IS THEN ARRANGED. AS CIRCUMSTANCES
CHANGE, HOWEVER, VARIANCES MIGHT OCCUR BETWEEN THE LONG-TERM GUIDANCE
SCHEDULE AND THE SHORT-TERM WORK SCHEDULE.
TWO DISPUTES OVER HOLIDAY SCHEDULING FOR MS. KENNY, THE GRIEVANT, LED
TO THE INSTANT ARBITRATION PROCEEDING. SINCE THE GRIEVANT WAS SCHEDULED
TO WORK BOTH THANKSGIVING AND CHRISTMAS 1972, THE OIC SUGGESTED AN
"EMPLOYEE SWAP" BY WHICH ANOTHER EMPLOYEE WHO WAS SCHEDULED TO BE OFF
BOTH HOLIDAYS MIGHT AGREE TO REPLACE THE GRIEVANT ON CHRISTMAS. WHEN
THE SCHEDULE APPEARED, HOWEVER, THE GRIEVANT NOTED THAT SHE WAS TO WORK
CHRISTMAS AND TO BE OFF ON THANKSGIVING. AFTER THE OTHER EMPLOYEE
REFUSED TO WORK CHRISTMAS AND THE "EMPLOYEE SWAP" COULD NOT BE
ACCOMPLISHED, THE OIC HELD TO THE POSTED SCHEDULE. THE SECOND DISPUTE
CONCERNED WHETHER THE GRIEVANT WAS SCHEDULED TO BE OFF ON OCTOBER 8,
1973, OR OCTOBER 22, 1973.
SINCE THE PARTIES DID NOT SUBMIT A PRECISELY WORDED ISSUE, THE
ARBITRATOR FRAMED SIX ISSUES AND ANSWERED THEM AS FOLLOWS: /2/
1. ARTICLE XV, SECTION 3.B. AND C. OF THE BASIC AGREEMENT AND THE
SUPPLEMENT THERETO
MANDATE NO SUBMISSION OF THE GUIDANCE SCHEDULE FOR UNION APPROVAL OR
VETO.
2. PURSUANT TO THE APPLICABLE PROVISIONS OF THE PARTIES' AGREEMENT
(ARTICLE XV, SECTION
3.A.), NO REQUIREMENT EXISTS FOR UNION APPROVAL OR VETO OF THE WORK
SCHEDULE.
3. SINCE ARTICLE XV LEAVES BASICALLY INTACT THE RIGHT OF MANAGEMENT
TO SCHEDULE, THE OIC
WAS NOT PRECLUDED FROM CHANGING A GUIDANCE SCHEDULE ADOPTED IN MAY
1971 WHICH PROVIDED FOR THE
PLACING OF SUPERNUMERARY OR H SHIFT EMPLOYEES ON HOLIDAYS.
FURTHERMORE, ONLY IF ALL AFFECTED
EMPLOYEES PROTEST A CHANGE IN THE POLICY OF EQUITABLE SHARING OF
HOLIDAYS OVER LONG PERIODS OF
TIME CAN THE MATTER BE SUBJECT TO LOCAL CONSULTATION UNDER THE
SUPPLEMENT TO ARTICLE XV.
4. THE OIC MUST SEEK HOLIDAY EQUITABILITY OVER EXTENDED PERIODS OF
TIME, BUT NO
REQUIREMENT EXISTS THAT THE NUMBER OF DAYS OF HOLIDAY BE IDENTICAL
AMONG ALL EMPLOYEES IN ANY
GIVEN CALENDAR YEAR.
5. THE OIC DID NOT VIOLATE ANY CONTRACTUAL REQUIREMENT BY REVERTING
TO HIS ORIGINAL
SCHEDULE WHEN THE 1972 CHRISTMAS-THANKSGIVING SWAP DID NOT WORK OUT.
THE GRATUITOUS
SUGGESTION BY THE OIC ABOUT EXCHANGING HOLIDAYS WAS NOT, AS ALLEGED
BY THE UNION, AN AGREEMENT
IN ANY LEGAL SENSE.
6. NO CONTRACTUAL VIOLATION OCCURRED WHEN THE OIC FAILED TO AGREE
WITH THE GRIEVANT'S
REQUEST CONCERNING THE OCTOBER 8, 1973 HOLIDAY.
THE UNION REQUESTS THAT THE COUNCIL ACCEPT ITS PETITION FOR REVIEW OF
THE ARBITRATOR'S AWARD ON THE BASIS OF TWO EXCEPTIONS DISCUSSED BELOW.
UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE, REVIEW OF
AN ARBITRATION AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON
THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE
EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES
APPLICABLE LAW, APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS
SIMILAR TO THOSE UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE
SUSTAINED BY COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS."
IN ITS FIRST EXCEPTION, THE UNION CONTENDS THAT THE ARBITRATOR IN HIS
AWARD CONTRAVENED THE FUNDAMENTAL REQUIREMENT OF DUE PROCESS THAT "HE
WHO DECIDES MUST HEAR" AND DID NOT ACCORD THE UNION PROPER CONSIDERATION
BY RENDERING HIS DECISION WITHIN A FEW DAYS OF RECEIVING THE UNION'S
BRIEF. THE FAILURE OF AN ARBITRATOR TO ACCORD A PARTY THE FUNDAMENTAL
REQUIREMENTS OF "DUE PROCESS" (SUCH AS WHERE THE AWARD WAS PROCURED BY
CORRUPTION, FRAUD, OR UNDUE MEANS; WHERE THE ARBITRATOR EXHIBITED
PARTIALITY OR CORRUPTION; OR WHERE THE ARBITRATOR REFUSED TO POSTPONE
THE HEARING UPON SUFFICIENT CAUSE OR TO HEAR EVIDENCE PERTINENT AND
MATERIAL) IS A GROUND UPON WHICH COURTS IN THE PRIVATE SECTOR WILL
SUSTAIN CHALLENGES TO ARBITRATION AWARDS. /3/ THE COUNCIL WILL GRANT A
PETITION FOR REVIEW OF AN ARBITRATION AWARD ON SIMILAR GROUNDS UNDER
SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE. /4/ HOWEVER, THE
UNION'S PETITION DOES NOT PRESENT FACTS AND CIRCUMSTANCES NECESSARY TO
SUPPORT ITS ASSERTION OF VIOLATION OF DUE PROCESS BY THE ARBITRATOR.
THE UNION'S UNSUPPORTED ALLEGATIONS THAT THE ARBITRATOR PAID "LITTLE OR
NO ATTENTION TO THE UNION'S BRIEF, EITHER IN FASHIONING OR RESOLVING THE
ISSUES PRESENTED" AND ITS CHARGE THAT THE ARBITRATOR REFERRED BUT ONCE
TO THE "UNION'S COMPREHENSIVE MEMORANDUM" IN HIS DECISION DO NOT
ESTABLISH THAT HE DEPRIVED THE UNION OF DUE PROCESS. THEREFORE, THIS
EXCEPTION PROVIDES NO BASIS FOR ACCEPTANCE OF THE UNION'S PETITION UNDER
SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE.
IN ITS SECOND EXCEPTION, THE UNION CONTENDS THAT THE ARBITRATOR
UNREASONABLY CONSTRUED AND EXCEEDED THE SCOPE OF HIS POWERS AND
AUTHORITY TO DECIDE THE ISSUES PRESENTED AND, THEREFORE, HIS AWARD DOES
NOT DRAW ITS ESSENCE FROM THE COLLECTIVE BARGAINING AGREEMENT. THE
UNION FURTHER ALLEGES THAT THE ARBITRATOR SEARCHED "FOR ISSUES NEVER
RAISED BY THE GRIEVANT OR THE AGENCY" AND THAT SINCE HE FAILED TO REFER
TO THE KEY CONTRACTUAL LANGUAGE RELIED UPON BY THE UNION, THE AWARD
DRAWS ITS ESSENCE FROM HIS FEARS OF MANAGERIAL CHAOS, NOT THE COLLECTIVE
BARGAINING AGREEMENT.
THE COUNCIL WILL GRANT A PETITION FOR REVIEW OF AN ARBITRATION AWARD
WHERE IT APPEARS, BASED UPON THE FACTS AND CIRCUMSTANCES DESCRIBED IN
THE PETITION, THAT THE AWARD FAILS TO DRAW ITS ESSENCE FROM THE
COLLECTIVE BARGAINING AGREEMENT (NAGE LOCAL R8-14 AND FEDERAL AVIATION
ADMINISTRATION, OKLAHOMA CITY, OKLAHOMA (STRATTON, ARBITRATOR), FLRC NO.
74A-38 (JULY 30, 1975), REPORT NO. 79) OR THAT THE ARBITRATOR EXCEEDED
HIS AUTHORITY BY DETERMINING ISSUES NOT INCLUDED IN THE QUESTIONS
SUBMITTED TO ARBITRATION (LONG BEACH NAVAL SHIPYARD AND FEDERAL
EMPLOYEES METAL TRADES COUNCIL (STEESE, ARBITRATOR), FLRC NO. 74A-40
(JANUARY 15, 1975), REPORT NO. 62).
THE COUNCIL, HOWEVER, HAS CONCLUDED THAT THE UNION'S PETITION DOES
NOT PRESENT FACTS AND CIRCUMSTANCES NECESSARY TO SUPPORT ITS ASSERTION
THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY BY DETERMINING ISSUES NOT
INCLUDED IN THE GRIEVANCE SUBMITTED TO ARBITRATION. AS PREVIOUSLY
NOTED, IN THE ABSENCE OF A SUBMISSION AGREEMENT BY THE PARTIES, THE
ARBITRATOR'S UNCHALLENGED FORMULATION OF THE ISSUES MAY BE REGARDED AS
AN EQUIVALENT. IN THE PRESENT CASE, THE COUNCIL FINDS THAT THE
ARBITRATOR OF NECESSITY FORMULATED, CONSIDERED, AND DECIDED ALL SIX
ISSUES. THE FINAL TWO ISSUES ANSWERED BY THE ARBITRATOR WERE
SPECIFICALLY THE TWO HOLIDAY SCHEDULING DISPUTES WHICH THE GRIEVANT
RAISED; THE ISSUES OF PLACING SUPERNUMERARY EMPLOYEES ON HOLIDAYS AND
THE HOLIDAY EQUITABILITY OVER EXTENDED PERIODS OF TIME APPEAR TO HAVE
ARISEN FROM THE TWO DISPUTES AND WERE INDEED RAISED BY THE UNION IN ITS
MEMORANDUM WHICH WAS SUBMITTED TO THE ARBITRATOR AND THAT WAS
INCORPORATED BY REFERENCE IN ITS PETITION FOR REVIEW; AND THE ISSUES OF
THE SUBMISSION OF THE WORK AND GUIDANCE SCHEDULES TO THE UNION FOR
APPROVAL OR VETO NOT ONLY WHERE ALSO RAISED BY THE UNION ITSELF IN ITS
MEMORANDUM, BUT APPEAR TO BE CLEARLY RELATED TO THE RESOLUTION OF THE
TWO DISPUTES.
IN REGARD TO THE UNION'S ALLEGATION THAT THE ARBITRATOR FAILED TO
REFER TO THE "KEY LANGUAGE RELIED UPON BY THE UNION," THE COUNCIL IS OF
THE OPINION THAT THE ARBITRATOR, AS NOTED IN A PRIOR COUNCIL CASE, IS
NOT REQUIRED TO DISCUSS THE SPECIFIC AGREEMENT PROVISION INVOLVED; NOR
DOES THE FACT THAT HE DID NOT MENTION THE PROVISION ESTABLISH THAT HE
DID NOT RULE UPON IT. MOREOVER, AS LIKEWISE NOTED IN THE PRIOR CASE, IT
IS THE AWARD RATHER THAN THE CONCLUSION OR THE SPECIFIC REASONING
EMPLOYED THAT IS SUBJECT TO CHALLENGE. SMALL BUSINESS ADMINISTRATION
AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2532 (KLEEB,
ARBITRATOR), FLRC NO. 73A-44 (NOVEMBER 6, 1974), REPORT NO. 60.
THUS, NO FACTS AND CIRCUMSTANCES ARE PRESENTED THAT THE ARBITRATOR'S
AWARD FAILS TO DRAW ITS ESSENCE FROM THE COLLECTIVE BARGAINING AGREEMENT
OR THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY BY DETERMINING ISSUES NOT
INCLUDED IN THE QUESTIONS SUBMITTED TO ARBITRATION. THEREFORE, THE
UNION'S SECOND EXCEPTION LIKEWISE PROVIDES NO BASIS FOR ACCEPTANCE OF
THE UNION'S PETITION UNDER SECTION 2411.32 OF THE COUNCIL'S RULES.
ACCORDINGLY, THE COUNCIL HAS DENIED REVIEW OF THE UNION'S PETITION
BECAUSE IT FAILS TO MEET THE REQUIREMENTS FOR REVIEW SET FORTH IN
SECTION 2411.32 OF ITS RULES OF PROCEDURE.
BY THE COUNCIL.
CC: N. E. RIZZO
NWS
/1/ ARTICLE XV PROVIDES IN PERTINENT PART:
SECTION 3. WORK SCHEDULES AND OVERTIME:
A. AN OFFICIAL WORK SCHEDULE SHALL BE DEVELOPED AND POSTED AFTER
REVIEW BY THE UNION NO
LATER THAN THE END OF EACH PAY PERIOD TO COVER NO MORE THAN THE
FOLLOWING TWO (2) PAY PERIODS
(FOUR WEEK PERIOD). THE TIME OF POSTING SHALL BE DETERMINED BY A
MAJORITY VOTE OF THE
EMPLOYEES AT THE LOCAL FACILITY. THE UNEXPIRED PORTIONS OF THESE
SCHEDULES WILL REMAIN
UNCHANGED IN SUBSEQUENT OFFICIAL SCHEDULES.
B. GUIDANCE SCHEDULES FOR LONG TERM PLANNING PURPOSES EACH COVERING
A MAXIMUM OF SIX (6)
MONTHS SHALL BE PREPARED AND POSTED QUARTERLY AND WILL BE USED AS A
BASIS FOR PREPARING THE
OFFICIAL SCHEDULE.
C. PREPARATION OF WORK SCHEDULES AND PAYMENT OF OVERTIME WILL
CONFORM TO THE FOLLOWING
GENERAL PROVISIONS:
1. THE GUIDANCE SCHEDULE WILL SHOW THE HOURS OF DUTY AND THE CYCLING
SEQUENCES ANTICIPATED
FOR EACH 6-MONTH PERIOD. IT WILL ASSURE THE PROPER UTILIZATION OF
AVAILABLE PERSONNEL,
EQUITABLE SCHEDULING OF ANNUAL LEAVE, AND A REASONABLY BALANCED
DISTRIBUTION OF HOLIDAY AND
SUNDAY WORK AS WELL AS EQUITABLE ROTATION OF SHIFTS AND SCHEDULED
DAYS OFF. EVERY EFFORT WILL
BE MADE TO LEAVE UNCHANGED THE UNEXPIRED PORTION OF THE GUIDANCE
SCHEDULE. NORMALLY, THE
REASONS FOR ANY CHANGE WILL BE LIMITED TO IN-HOUSE TRAINING, FORMAL
SCHOOLING, UNSCHEDULED
LEAVE (CIVIL DISTURBANCES REQUIRING MILITARY LEAVE, COURT LEAVE), THE
OCCURRENCE AND FILLING
OF BONA FIDE VACANCIES, AND THE CONSOLIDATION OR RESTORATION OF
SHIFTS. SECTION 4. HOLIDAYS
WHEN A HOLIDAY OR A DAY OBSERVED AS A HOLIDAY FALLS ON A REGULARLY
SCHEDULED NON-WORKDAY OF
EMPLOYEES WHOSE BASIC WORKWEEK IS OTHER THAN MONDAY THROUGH FRIDAY,
HIS HOLIDAYS WILL BE
DETERMINED IN ACCORDANCE WITH APPLICABLE LAWS AND REGULATIONS. IF
THE EMPLOYEE IS REQUIRED TO
WORK ON A DAY DESIGNATED AS HIS HOLIDAY, HE SHALL BE PAID IN
ACCORDANCE WITH HOLIDAY PAY
PROVISIONS.
SUPPLEMENT TO ARTICLE XV OF THE BASIC AGREEMENT PROVIDES IN PERTINENT
PART:
SECTION 3. WORK SCHEDULES AND OVERTIME-- PARAGRAPH A. ADD:
1. AN OFFICIAL WORK SCHEDULE SHALL BE DEVELOPED AND SUBMITTED TO A
LOCAL UNION
REPRESENTATIVE FOR REVIEW PRIOR TO POSTING. IF COMMENTS ARE NOT
RECEIVED WITHIN THREE (3)
CALENDAR DAYS, THE WORK SCHEDULE WILL BE CONSIDERED ACCEPTABLE AND
POSTED BY THE STATION
OFFICIAL IN ACCORDANCE WITH ARTICLE XV, SECTION 3 OF THE MULTI-UNIT
AGREEMENT. COMMENTS
RECEIVED WILL BE CONSIDERED PRIOR TO POSTING. COMPLAINTS WHICH ARISE
LATER WILL NOT BE
CONSIDERED GRIEVABLE MATTERS.
SECTION 3. WORK SCHEDULES AND OVERTIME-- PARAGRAPH B. ADD:
1. IN MULTI-SHIFT OPERATIONS, SHIFT TYPES, SCHEDULED DAYS OFF,
HOLIDAYS, SUNDAY AND NIGHT
WORK SHOULD BE EQUITABLY SHARED BY EMPLOYEES OVER LONG PERIODS OF
TIME. TO ACHIEVE THIS A
ROTATION WILL BE DEVELOPED FOR LOCAL CONSULTATION. THE GUIDANCE
SCHEDULE WILL SHOW, IN
GENERAL TERMS, THE HOURS OF DUTY AND CYCLING SEQUENCIES (SIC)
ANTICIPATED FOR THE GUIDANCE
PERIOD. EXCEPTION TO THIS POLICY CAN BE A SUBJECT FOR LOCAL
CONSULTATION ONLY WHERE THERE IS
UNANIMOUS AGREEMENT OF AFFECTED EMPLOYEES . . .
/2/ THE COUNCIL HAS PREVIOUSLY STATED THAT, IN THE ABSENCE OF A
SUBMISSION AGREEMENT, THE ARBITRATOR'S UNCHALLENGED FORMULATION OF THE
QUESTIONS MAY BE REGARDED AS THE EQUIVALENT OF A SUBMISSION AGREEMENT.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 12 (AFGE) AND U.S.
DEPARTMENT OF LABOR (JAFFEE, ARBITRATOR), FLRC NO. 72A-3 (JULY 31,
1973), REPORT NO. 42.
/3/ E.G., COMMONWEALTH COATINGS CORP. V. CONTINENTAL CAS. CO., 393
U.S. 145 (1968) AND BIESKI V. EASTERN AUTO. FORWARDING CO., 396 F.2D 32
(3D CIR. 1968) (PARTIALITY OF DECISION MAKERS OR ARBITRATOR); HARVEY
ALUMINUM, INC. V. UNITED STEELWORKERS, 263 F.SUPP. 488 (C.D. CAL. 1967)
(EXCLUSION OF PERTINENT AND MATERIAL EVIDENCE). SEE ALSO DUNAU, "SCOPE
OF JUDICIAL REVIEW OF LABOR ARBITRATION AWARDS," N.Y.U. CONFERENCE ON
LABOR (1971) AND WIRTZ, "DUE PROCESS OF ARBITRATION," PROCEEDINGS OF THE
ELEVENTH ANNUAL MEETING, NATIONAL ACADEMY OF ARBITRATORS (1958).
/4/ OFFICE OF ECONOMIC OPPORTUNITY, KANSAS CITY REGIONAL OFFICE,
REGION VII AND NATIONAL COUNCIL OF OEO LOCALS, LOCAL 2691, AFL-CIO
(YAROWSKY, ARBITRATOR), FLRC NO. 74A-102 (AUGUST 15, 1975), REPORT NO.
81 (ALLEGED FAILURE OF ARBITRATOR TO HEAR PERTINENT AND MATERIAL
EVIDENCE).
3 FLRC 710; FLRC NO. 75A-92; NOVEMBER 12, 1975.
MR. GERALD C. TOBIN, STAFF ATTORNEY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
1737 H STREET NW.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 75A-92
VETERANS ADMINISTRATION CENTER, BATH, NEW YORK, ASSISTANT SECRETARY
CASE NO. 35-3253. THE ASSISTANT SECRETARY, IN AGREEMENT WITH THE
ASSISTANT REGIONAL DIRECTOR (ARD), FOUND THAT A REASONABLE BASIS HAD NOT
BEEN ESTABLISHED FOR THE COMPLAINT OF THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES (NFFE), WHICH ALLEGED THAT THE ACTIVITY HAD VIOLATED SECTION
19(A)(3) AND (6) OF THE ORDER; AND THE ASSISTANT SECRETARY DENIED
NFFE'S REQUEST FOR REVERSAL OF THE ARD'S DISMISSAL OF THE COMPLAINT.
NFFE APPEALED TO THE COUNCIL, CONTENDING THAT THE DECISION OF THE
ASSISTANT SECRETARY IS ARBITRARY AND CAPRICIOUS AND PRESENTS A MAJOR
POLICY ISSUE.
COUNCIL ACTION (NOVEMBER 12, 1975). THE COUNCIL HELD THAT THE
ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY AND CAPRICIOUS
AND, UNDER THE CIRCUMSTANCES OF THIS CASE, DOES NOT PRESENT A MAJOR
POLICY ISSUE WARRANTING COUNCIL REVIEW. ACCORDINGLY, SINCE NFFE'S
APPEAL FAILED TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED IN SECTION
2411.12 OF THE COUNCIL'S RULES OF PROCEDURE, THE COUNCIL DENIED REVIEW
OF THE APPEAL.
DEAR MR. TOBIN:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
IN THIS CASE, THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES (NFFE)
FILED A COMPLAINT ALLEGING THAT THE VETERANS ADMINISTRATION CENTER,
BATH, NEW YORK (THE ACTIVITY) VIOLATED SECTION 19(A)(3) AND (6) OF THE
ORDER. NFFE ALLEGED THAT THE ACTIVITY HAD VIOLATED THE ORDER BY
UNILATERALLY ALTERING THE COMPOSITION OF THE CERTIFIED BARGAINING UNIT
BY ADDING TWO POSITIONS OF ADMINISTRATIVE COORDINATOR FOR NURSING TO A
LIST OF SUPERVISORY POSITIONS EXCLUDED FROM THE UNIT, AND IN SO DOING
DEMEANED NFFE AND PROVIDED SUPPORT FOR A CHALLENGING LABOR ORGANIZATION.
THE ASSISTANT REGIONAL DIRECTOR (ARD) DISMISSED THE COMPLAINT, FINDING
THAT NFFE HAD FAILED TO SUBMIT EVIDENCE IN SUPPORT OF EITHER ALLEGATION.
THE ASSISTANT SECRETARY IN AGREEMENT WITH THE ARD, FOUND THAT UNDER THE
CIRCUMSTANCES OF THE CASE, A REASONABLE BASIS FOR THE COMPLAINT HAD NOT
BEEN ESTABLISHED, SINCE "THE PRIMARY ISSUE INVOLVED HEREIN IS WHETHER OR
NOT THE POSITION OF ADMINISTRATIVE COORDINATOR FOR NURSING IS
SUPERVISORY WITHIN THE MEANING OF THE ORDER," A DISPUTE WHICH "SHOULD BE
RESOLVED THROUGH THE PROCESSING OF A PETITION FOR CLARIFICATION OF UNIT
RATHER THAN UNDER THE UNFAIR LABOR PRACTICE PROCEDURES." ACCORDINGLY,
THE ASSISTANT SECRETARY DENIED NFFE'S REQUEST FOR REVERSAL OF THE ARD'S
DISMISSAL OF THE COMPLAINT.
IN YOUR PETITION FOR REVIEW, YOU CONTEND THAT THE DECISION OF THE
ASSISTANT SECRETARY IS ARBITRARY AND CAPRICIOUS SINCE THE ASSISTANT
SECRETARY CONSIDERED ONLY THE ACTIVITY'S FACTUAL ALLEGATIONS AND IGNORED
THE EVIDENCE SUBMITTED BY NFFE. IN THIS REGARD, YOU ASSERT THAT NFFE
PRESENTED SUFFICIENT EVIDENCE TO SUPPORT ITS ALLEGATIONS THAT THE
ACTIVITY UNILATERALLY EXCLUDED THE PREVIOUSLY INCLUDED POSITION OF
ADMINISTRATIVE COORDINATOR FOR NURSING FROM THE BARGAINING UNIT. YOU
FURTHER CONTEND THAT THE ASSISTANT SECRETARY'S DECISION PRESENTS A MAJOR
POLICY ISSUE AS TO "WHETHER THE ACTION BY AN ACTIVITY OF UNILATERALLY .
. . REVISING, BY CREATING ADDITIONAL SUPERVISORS WHERE THERE WAS NO
PREVIOUS NOTICE THAT SUCH POSITIONS WERE SUPERVISORY, THE NUMBER OF
PERSONS TO BE INCLUDED AND EXCLUDED FROM A REPRESENTATIONAL UNIT, CAN BE
THE PROPER SUBJECT OF AN UNFAIR LABOR PRACTICE PROCEEDING IN LIEU OF A
CLARIFICATION OF UNIT PETITION." IN THIS CONNECTION, YOU ALLEGE THAT THE
FAILURE OF THE ACTIVITY TO CONSULT, CONFER, OR NEGOTIATE ON THE
INCLUSION OR EXCLUSION FROM THE UNIT OF CERTAIN POSITIONS MAY BE GROUNDS
FOR AN UNFAIR LABOR PRACTICE WHERE, AS HERE, EVIDENCE OF ANTI-UNION
ANIMUS IS PRESENTED.
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW OF THE ASSISTANT
SECRETARY'S DECISION DOES NOT MEET THE REQUIREMENTS OF SECTION 2411.12
OF THE COUNCIL'S RULES. THAT IS, HIS DECISION DOES NOT APPEAR TO BE
ARBITRARY AND CAPRICIOUS OR TO PRESENT A MAJOR POLICY ISSUE. WITH
RESPECT TO YOUR CONTENTION THAT THE ASSISTANT SECRETARY'S DECISION WAS
ARBITRARY AND CAPRICIOUS, IT DOES NOT APPEAR THAT THE ASSISTANT
SECRETARY ACTED WITHOUT REASONABLE JUSTIFICATION IN REACHING HIS
DECISION. IN THIS REGARD, YOUR APPEAL DOES NOT DISCLOSE ANY EVIDENCE
WITH THE ASSISTANT SECRETARY FAILED TO CONSIDER. RATHER, YOU ACTUALLY
ONLY CONTEST HIS CONCLUSION THAT THE PROPER VEHICLE TO RESOLVE THE
EXCLUSION ISSUE IS A UNIT CLARIFICATION PETITION.
AS TO THE ALLEGED MAJOR POLICY ISSUE, THE COUNCIL IS OF THE OPINION
THAT, UNDER THE CIRCUMSTANCES OF THIS CASE, THE ASSISTANT SECRETARY'S
DETERMINATION THAT "THE PRIMARY ISSUE INVOLVED HEREIN IS WHETHER OR NOT
THE POSITION . . . IS SUPERVISORY WITHIN THE MEANING OF THE ORDER," A
DISPUTE WHICH "SHOULD BE RESOLVED THROUGH THE PROCESSING OF A PETITION
FOR CLARIFICATION OF UNIT RATHER THAN UNDER THE UNFAIR LABOR PRACTICE
PROCEDURES," DOES NOT RAISE A MAJOR POLICY ISSUE WARRANTING COUNCIL
REVIEW. /1/
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS AND DOES NOT PRESENT ANY MAJOR POLICY ISSUE, YOUR APPEAL
FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED UNDER SECTION
2411.12 OF THE COUNCIL'S RULES OF PROCEDURE. ACCORDINGLY, REVIEW OF
YOUR APPEAL IS HEREBY DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
S. SHOCHET
VA
/1/ IN SO RULING, HOWEVER, WE DO NOT INTERPRET THE ASSISTANT
SECRETARY'S DISMISSAL OF NFFE'S COMPLAINT HEREIN AS FORECLOSING THE
RESOLUTION OF DISPUTES INVOLVING THE INCLUSION OR EXCLUSION OF POSITIONS
FROM A BARGAINING UNIT THROUGH THE USE OF UNFAIR LABOR PRACTICE
PROCEDURES UNDER ALL CIRCUMSTANCES. RATHER, WE DECIDE ONLY THAT HIS
DETERMINATION IN THIS REGARD, BASED UPON THE PARTICULAR FACTS AND
CIRCUMSTANCES OF THIS CASE, RAISES NO MAJOR POLICY ISSUE.
3 FLRC 703; FLRC NO. 74A-15; NOVEMBER 7, 1975.
PROFESSIONAL AIR TRAFFIC
CONTROLLERS ORGANIZATION
AND
FEDERAL AVIATION ADMINISTRATION
PORTLAND, MAINE, AIR TRAFFIC
CONTROL TOWER
(SYNOPSIS) FLRC NO. 74A-15
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION AND FEDERAL
AVIATION ADMINISTRATION, PORTLAND, MAINE, AIR TRAFFIC CONTROL TOWER
(GREGORY, ARBITRATOR). THE ARBITRATOR DETERMINED THAT THE PARTIES'
AGREEMENT GUARANTEED 2 HOURS OF PRODUCTIVE WORK TO ANY EMPLOYEE HELD
BEYOND HIS REGULAR SHIFT AND THAT THIS GUARANTEE WAS TANTAMOUNT TO A
GUARANTEE OF 2 HOURS OF ADDITIONAL PAY AT THE APPROPRIATE OVERTIME RATE
UNDER THE CIRCUMSTANCES GIVING RISE TO THIS GRIEVANCE. AS A REMEDY, THE
ARBITRATOR AWARDED THE GRIEVANT, WHO HAD BEEN HELD ON DUTY BEYOND HIS
REGULAR SHIFT BUT WAS PAID ONLY 1 HOUR OF OVERTIME, AN ADDITIONAL HOUR
OF PAY AT THE APPROPRIATE OVERTIME RATE. THE COUNCIL ACCEPTED THE
AGENCY'S PETITION FOR REVIEW INSOFAR AS IT ALLEGED THAT THE ARBITRATOR'S
AWARD CONFLICTED WITH APPLICABLE LAW AND APPROPRIATE REGULATIONS (REPORT
NO. 53).
COUNCIL ACTION (NOVEMBER 7, 1975). BASED UPON A DECISION OF THE
COMPTROLLER GENERAL, THE COUNCIL FOUND THAT THE ARBITRATOR'S AWARD DOES
NOT VIOLATE APPLICABLE LAW AND APPROPRIATE IMPLEMENTING REGULATIONS.
ACCORDINGLY, PURSUANT TO SECTION 2411.37(B) OF ITS RULES OF PROCEDURE,
THE COUNCIL SUSTAINED THE ARBITRATOR'S AWARD.
BASED ON THE ENTIRE RECORD IN THE CASE, THE CIRCUMSTANCES OF THE CASE
APPEAR AS FOLLOWS:
NORMAL OPERATING HOURS OF THE AIR TRAFFIC CONTROL TOWER AT THE
PORTLAND INTERNATIONAL JETPORT IN PORTLAND, MAINE, ARE FROM 7 A.M. TO 11
P.M. DAILY. HOWEVER, WHEN A FLIGHT ARRIVES AFTER 11 P.M., THE AIR
TRAFFIC CONTROLLER IS REQUIRED TO REMAIN ON DUTY PAST HIS NORMAL
QUITTING TIME TO SERVICE THE FLIGHT. THE NEGOTIATED AGREEMENT BETWEEN
THE PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION (PATCO) AND THE
FEDERAL AVIATION ADMINISTRATION (FAA) PROVIDES IN ARTICLE 40, SECTION 5:
WHENEVER AN EMPLOYEE IS HELD ON DUTY BEYOND HIS REGULAR SHIFT, HE
SHALL BE GUARANTEED A
MINIMUM OF TWO HOURS PRODUCTIVE WORK.
NOTWITHSTANDING THE ABOVE PROVISION, A MEMORANDUM ISSUED BY THE CHIEF
CONTROLLER AT PORTLAND PROVIDED THAT THE CONTROL TOWER WOULD BE CLOSED
ONCE IT HAS SERVICED THE LATE NIGHT FLIGHT; IF THIS OCCURRED BEFORE
MIDNIGHT, 1 HOURS OF OVERTIME WOULD BE CREDITED; IF AFTER MIDNIGHT, 2
OVERTIME HOURS WOULD BE ALLOWED.
THE INSTANT GRIEVANCE AROSE WHEN A FLIGHT DEPARTED PORTLAND BETWEEN
11 P.M. AND 12 MIDNIGHT, AND THE GRIEVANT AIR CONTROLLER WHO WAS IN
CHARGE OF THE CONTROL TOWER CLOSED THE TOWER AT MIDNIGHT. HE WAS
CREDITED WITH 1 HOUR OF OVERTIME PURSUANT TO THE CHIEF CONTROLLER'S
MEMORANDUM. THE GRIEVANCE ALLEGED THAT THE POLICY MEMORANDUM WAS A
VIOLATION OF THE PATCO/FAA AGREEMENT AND REQUESTED (1) RECISION OF THE
MEMORANDUM, (2) PAYMENT FOR AN EXTRA HOUR OF OVERTIME, (3) A GUARANTEE
OF 2 HOURS' PRODUCTIVE WORK TO A CONTROLLER WHEN HELD OVER IN THE
FUTURE, AND, IF NO SUCH WORK IS AVAILABLE, A PAYMENT FOR 2 HOURS OF
OVERTIME IN ANY EVENT, AND (4) A REQUIREMENT THAT THE AIRLINE REIMBURSE
FAA FOR SUCH OVERTIME PAY. THE GRIEVANCE WAS ULTIMATELY SUBMITTED TO
ARBITRATION.
THE ARBITRATOR DETERMINED THAT ARTICLE 40, SECTION 5, GUARANTEES 2
HOURS OF PRODUCTIVE WORK TO ANY EMPLOYEE HELD BEYOND HIS REGULAR SHIFT
AND THAT THIS GUARANTEE IS TANTAMOUNT TO A GUARANTEE OF 2 HOURS OF
ADDITIONAL PAY AT THE APPROPRIATE OVERTIME RATE UNDER THE CIRCUMSTANCES
GIVING RISE TO THIS GRIEVANCE. SINCE THE GRIEVANT HAD RECEIVED 1 HOUR
OF OVERTIME PAY FOR PRODUCTIVE WORK, THE ARBITRATOR AWARDED HIM AN
ADDITIONAL HOUR'S PAY AT THE APPROPRIATE OVERTIME RATE AS THE REMEDY IN
THIS CASE.
THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD WITH
THE COUNCIL, ALLEGING, AMONG OTHER GROUNDS, THAT THE AWARD, IN EFFECT,
CONFLICTS WITH CIVIL SERVICE COMMISSION DIRECTIVES, AND APPLICABLE LAW
AS INTERPRETED BY THE COMPTROLLER GENERAL. THE COUNCIL ACCEPTED THE
AGENCY'S PETITION FOR REVIEW AND GRANTED THE AGENCY'S REQUEST FOR A STAY
PENDING THE DETERMINATION OF THE INSTANT APPEAL. BRIEFS WERE SUBMITTED
BY BOTH PARTIES.
SECTION 2411.37(A) OF THE COUNCIL'S RULES OF PROCEDURE PROVIDES, IN
PERTINENT PART, THAT "AN AWARD OF AN ARBITRATOR SHALL BE MODIFIED, SET
ASIDE IN WHOLE OR IN PART, OR REMANDED . . . ON THE GROUNDS THAT THE
AWARD VIOLATES APPLICABLE LAW, APPROPRIATE REGULATION . . . "
AS PREVIOUSLY STATED, THE AGENCY CONTENDS THAT THE ARBITRATOR'S AWARD
OF ADDITIONAL OVERTIME PAY WOULD VIOLATE CIVIL SERVICE COMMISSION
DIRECTIVES AND APPLICABLE LAW AS INTERPRETED BY THE COMPTROLLER GENERAL.
SINCE THE CASE INVOLVES ISSUES WITHIN THE JURISDICTION OF THE
COMPTROLLER GENERAL'S OFFICE, THE COUNCIL REQUESTED FROM HIM A DECISION
AS TO THE APPLICABILITY OF PRIOR DECISIONS OF HIS OFFICE TO THE FACTS OF
THIS CASE, ESPECIALLY AS TO WHETHER PAYMENT OF THE ADDITIONAL HOUR'S PAY
AT THE APPROPRIATE OVERTIME RATE ORDERED BY THE ARBITRATOR IN THIS CASE
MAY NOW LEGALLY BE MADE. THE COMPTROLLER GENERAL'S DECISION IN THE
MATTER, B-180010, OCTOBER 29, 1975, IS SET FORTH IN RELEVANT PART AS
FOLLOWS:
THE PORTLAND, MAINE, AIR TRAFFIC CONTROL TOWER IS OPERATED BY AIR
TRAFFIC CONTROLLERS
EMPLOYED BY THE FEDERAL AVIATION ADMINISTRATION (FAA). THE CONTROL
TOWER NORMALLY OPERATES
BETWEEN 7 A.M. AND 11 P.M. DAILY; HOWEVER, OCCASIONALLY AN EVENING
FLIGHT OF DELTA AIRLINES
ARRIVES IN PORTLAND CONSIDERABLY LATER THAN ITS SCHEDULED TIME.
WHENEVER THIS FLIGHT ARRIVES
LATE, THE AIR TRAFFIC CONTROLLER ON DUTY IS REQUIRED TO REMAIN AT
WORK AFTER HIS REGULAR
QUITTING TIME OF 11 P.M. THE CHIEF CONTROLLER HAD ESTABLISHED WORK
GUIDELINES FOR CONTROLLERS
REQUIRED TO STAY BEYOND THEIR NORMAL QUITTING TIME THAT ALLOWED 1
HOURS OF OVERTIME PAY FOR
ANY TIME WORKED AFTER 11 P.M. AND TERMINATED BEFORE MIDNIGHT AND 2
HOURS OF OVERTIME PAY IF
THE WORK TIME EXTENDED BEYOND MIDNIGHT.
ON JUNE 21, 1973, THE EVENING DELTA FLIGHT ARRIVED LATE AT THE
PORTLAND AIRPORT AND DID NOT
DEPART UNTIL 11:26 P.M. MR. RICHARD A. FOURNIER WAS THE AIR
CONTROLLER ON DUTY AT THE
TIME. HE REMAINED BEYOND HIS NORMAL QUITTING TIME AND CLOSED THE
CONTROL TOWER AT
MIDNIGHT. HE WAS PAID FOR 1 HOUR OF OVERTIME AT THE APPROPRIATE RATE
PURSUANT TO THE WORK
GUIDES ESTABLISHED BY THE CHIEF CONTROLLER.
MR. FOURNIER AND HIS LABOR ORGANIZATION, THE PROFESSIONAL AIR TRAFFIC
CONTROLLERS
ORGANIZATION (PATCO), FILED A GRIEVANCE ON JUNE 22, 1973, ALLEGING
THAT THE WORK GUIDELINES
ESTABLISHED BY THE CHIEF CONTROLLER VIOLATED ARTICLE 40, SECTION 5,
OF THE NEGOTIATED
AGREEMENT THEN IN FORCE, WHICH READS AS FOLLOWS:
SECTION 5. WHENEVER AN EMPLOYEE IS HELD ON DUTY BEYOND HIS REGULAR
SHIFT, HE SHALL BE
GUARANTEED A MINIMUM OF TWO HOURS OF PRODUCTIVE WORK. THE EMPLOYEE'S
GRIEVANCE WAS DENIED BY
THE AGENCY ON THE BASIS THAT THE FACILITY COULD NOT PROVIDE
PRODUCTIVE WORK AFTER ASSISTANCE
TO DELTA AIRLINES HAD BEEN COMPLETED. THE DISPUTED MATTER WAS
SUBMITTED TO ARBITRATION. THE
ARBITRATOR MADE THE FOLLOWING FINDING AND CONCLUSIONS: . . . IT IS
MY OPINION THAT THE
GRIEVANT'S AND PATCO'S INTERPRETATION OF ARTICLE 40, SECTION 5, WITH
REFERENCE TO THE PRESENT
CASE, IS CORRECT. MY CONCLUSION, THEREFORE, IS THAT UNDER ARTICLE
40, SECTION 5 OF THE
AGREEMENT THE GRIEVANT WAS ENTITLED TO TWO HOURS OF OVERTIME PAY AT
THE APPROPRIATE OVERTIME
RATE WHEN HE WAS HELD OVER ON THE EVENING OF JUNE 21, 1973.
ACCORDINGLY, THE ARBITRATOR ALLOWED THE GRIEVANCE OF RICHARD A.
FOURNIER AND AWARDED HIM
ANOTHER HOUR'S PAY AT THE APPROPRIATE OVERTIME RATE, IN ADDITION TO
WHAT HE HAS ALREADY
RECEIVED, FOR HAVING BEEN HELD OVER BEYOND HIS REGULAR SHIFT ON JUNE
21, 1973.
THE FAA PETITIONED THE FLRC FOR REVIEW OF THE ABOVE-QUOTED AWARD
ALLEGING THAT THE AWARD
DIRECTING PAYMENT FOR AN ADDITIONAL HOUR OF OVERTIME CONFLICTS WITH
APPLICABLE LAW,
REGULATIONS, AND DECISIONS OF OUR OFFICE. UNDER THE PROVISIONS OF 5
U.S.C. 5542(A) (1970) AND
THE REGULATIONS IMPLEMENTING THE STATUTE CONTAINED IN 5 C.F.R.
550.111, AN AGENCY HAS
AUTHORITY TO ORDER OR APPROVE OVERTIME WORK WHICH IS DEFINED AS EACH
HOUR OF WORK IN EXCESS OF
8 HOURS IN A DAY. THE STATUTE AND REGULATION ALSO REQUIRE THAT SUCH
WORK MUST BE PERFORMED BY
THE EMPLOYEE IN ORDER FOR HIM TO RECEIVE OVERTIME PAY. THE FAA, IN
ITS AGREEMENT WITH PATCO,
EXERCISED ITS STATUTORY AUTHORITY AND, IN EFFECT, AUTHORIZED OVERTIME
WORK OF AT LEAST 2 HOURS
FOR EMPLOYEES HELD OVER BEYOND THEIR REGULAR SHIFTS SINCE IT AGREED
TO PROVIDE PRODUCTIVE WORK
FOR SUCH OVERTIME PERIOD. DURING THE PROCEEDINGS, THE AGENCY ARGUED
THAT NO WORK WAS
AVAILABLE FOR THE OVERTIME ADDED TO THE TOUR; HOWEVER, THIS WAS
EFFECTIVELY COUNTERED BY THE
UNION IN POINTING OUT THAT MANY ADMINISTRATIVE, OPERATIONAL, AND
TRAINING TASKS COULD HAVE
BEEN ASSIGNED TO A CONTROLLER WHO WAS HELD OVER ON DUTY BEYOND HIS
REGULAR TOUR. SUCH TASKS
INCLUDE RESETTING RUNWAY LIGHTS, SECURING THE RECORDING EQUIPMENT,
SECURING THE FACILITY LOGS,
DETERMINING THE TRAFFIC COUNT FOR THE DAILY OPERATIONS SURVEY FOR THE
TOWER, SECURING THE
TOWER UPON HIS DEPARTURE, TRAINING WITH OPERATIONAL MANUALS, AND
FAMILIARIZATION WITH
OPERATING PROCEDURES.
THE ARBITRATOR FOUND THAT THE FAA VIOLATED THE TERMS OF THE
NEGOTIATED AGREEMENT BY FAILING
TO FULFILL ITS COMMITMENT OF PROVIDING THE REQUIRED 2 HOURS OF
PRODUCTIVE OVERTIME WORK FOR
THE EMPLOYEE. WE HAVE HELD THAT WHERE AN ARBITRATOR HAS MADE A
FINDING THAT AN AGENCY HAS
VIOLATED A MANDATORY PROVISION OF A NEGOTIATED AGREEMENT WHICH CAUSES
THE EMPLOYEE TO LOSE
PAY, ALLOWANCES OR DIFFERENTIALS, SUCH VIOLATION IS AS MUCH AN
UNJUSTIFIED OR UNWARRANTED
PERSONNEL ACTION AS IS AN IMPROPER SEPARATION, SUSPENSION, FURLOUGH
WITHOUT PAY, DEMOTION OR
REDUCTION IN PAY, AS LONG AS THE PROVISION WAS PROPERLY INCLUDED IN
THE
AGREEMENT. ACCORDINGLY, THE BACK PAY ACT, 5 U.S.C. 5596 (1970), IS
THE APPROPRIATE STATUTORY
AUTHORITY FOR COMPENSATING THE EMPLOYEE FOR PAY, ALLOWANCES OR
DIFFERENTIALS HE WOULD HAVE
RECEIVED BUT FOR THE VIOLATION OF THE NEGOTIATED AGREEMENT. 54
COMP.GEN. 312 (1974), 54
ID. 403 (1974), 54 ID. 435 (1974), AND 54 ID. 538 (1974).
SECTION 5596 OF TITLE 5, UNITED STATES CODE, THE AUTHORITY UNDER
WHICH AN AGENCY MAY
RETROACTIVELY ADJUST AN EMPLOYEE'S COMPENSATION, PROVIDES, IN PART,
AS FOLLOWS:
(B) AN EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF AN ADMINISTRATIVE
DETERMINATION OR A
TIMELY APPEAL, IS FOUND BY APPROPRIATE AUTHORITY UNDER APPLICABLE LAW
OR REGULATION TO HAVE
UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION THAT HAS
RESULTED IN THE WITHDRAWAL
OR REDUCTION OF ALL OR A PART OF THE PAY, ALLOWANCES, OR
DIFFERENTIALS OF THE EMPLOYEE--
(1) IS ENTITLED, ON CORRECTION OF THE PERSONNEL ACTION, TO RECEIVE
FOR THE PERIOD FOR WHICH
THE PERSONNEL ACTION WAS IN EFFECT AN AMOUNT EQUAL TO ALL OR ANY PART
OF THE PAY, ALLOWANCES,
OR DIFFERENTIALS, AS APPLICABLE, THAT THE EMPLOYEE NORMALLY WOULD
HAVE EARNED DURING THAT
PERIOD IF THE PERSONNEL ACTION HAD NOT OCCURRED, LESS ANY AMOUNTS
EARNED BY HIM THROUGH OTHER
EMPLOYMENT DURING THAT PERIOD; AND
(2) FOR ALL PURPOSES, IS DEEMED TO HAVE PERFORMED SERVICE FOR THE
AGENCY DURING THAT PERIOD
. . . THE IMPLEMENTING REGULATIONS FOR THE ABOVE-QUOTED STATUTE
CONCERNING THE RECOMPUTATION
OF PAY FOR EMPLOYEES WHO HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED
PERSONNEL ACTION
SPECIFICALLY PROVIDE FOR THE PAYMENT OF PREMIUM PAY. IN THIS REGARD
SECTION 550.804 OF TITLE
5, CODE OF FEDERAL REGULATIONS, PROVIDES AS FOLLOWS:
(B) IN RECOMPUTING THE PAY, ALLOWANCES, DIFFERENTIALS, AND LEAVE
ACCOUNT OF AN EMPLOYEE
UNDER PARAGRAPH (A) OF THIS SECTION, THE AGENCY SHALL INCLUDE THE
FOLLOWING:
(1) PREMIUM PAY WHICH THE EMPLOYEE WOULD HAVE RECEIVED HAT IT NOT
BEEN FOR THE UNJUSTIFIED
OR UNWARRANTED PERSONNEL ACTION . . . IN B-175275.14, JUNE 20, 1975,
54 COMP.GEN. . . ., WE
HELD THAT WHERE AN EMPLOYEE WAS DEPRIVED OF OVERTIME WORK IN
VIOLATION OF A NEGOTIATED
AGREEMENT, THE EMPLOYEE MAY BE AWARDED BACKPAY FOR THE OVERTIME LOST
UNDER THE PROVISIONS OF
THE BACK PAY ACT. ACCORDINGLY, WE HAVE NO OBJECTION TO THE
IMPLEMENTATION OF THE ARBITRATION
AWARD REQUIRING THE PAYMENT OF AN ADDITIONAL HOUR OF OVERTIME TO THE
GRIEVANT FOR OVERTIME
WORK THAT THE FAA AUTHORIZED AND FAILED TO PROVIDE AS IT HAD
OBLIGATED ITSELF TO DO UNDER THE
AGREEMENT. THE AMOUNT OF THE PAYMENT MUST BE DETERMINED BY THE FAA
AND MADE IN ACCORDANCE
WITH THE PROVISIONS OF 5 U.S.C. 5596 AND IMPLEMENTING REGULATIONS.
BASED UPON THE FOREGOING DECISION BY THE COMPTROLLER GENERAL, WE MUST
CONCLUDE THAT THE ARBITRATOR'S AWARD DOES NOT VIOLATE APPLICABLE LAW AND
APPROPRIATE IMPLEMENTING REGULATIONS.
FOR THE FOREGOING REASONS, WE FIND THAT THE AWARD OF AN ADDITIONAL
HOUR'S OVERTIME COMPENSATION DOES NOT VIOLATE APPLICABLE LAW AND
APPROPRIATE REGULATION. ACCORDINGLY, PURSUANT TO SECTION 2411.37(B) OF
THE COUNCIL'S RULES OF PROCEDURE, WE SUSTAIN THE ARBITRATOR'S AWARD.
BY THE COUNCIL.
ISSUED: NOVEMBER 7, 1975
3 FLRC 697; FLRC NO. 74A-80; OCTOBER 24, 1975.
DEPARTMENT OF THE NAVY, NAVAL
AIR STATION, FALLON, NEVADA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1841
(SYNOPSIS) FLRC NO. 74A-80
DEPARTMENT OF THE NAVY, NAVAL AIR STATION, FALLON, NEVADA, A/SLMR NO.
432. THIS APPEAL AROSE FROM A DECISION AND ORDER OF THE ASSISTANT
SECRETARY WHO, UPON A COMPLAINT FILED BY AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 1841, FOUND THAT THE ACTIVITY VIOLATED
SECTION 19(A)(1) AND (6) OF THE ORDER. THE COUNCIL ACCEPTED THE
AGENCY'S PETITION FOR REVIEW OF THIS DECISION, HOLDING THAT A MAJOR
POLICY ISSUE WAS PRESENTED CONCERNING THE PROPRIETY OF THE ASSISTANT
SECRETARY'S FINDING THAT, ABSENT MUTUAL AGREEMENT BETWEEN AN EXCLUSIVE
BARGAINING REPRESENTATIVE AND AN AGENCY OR ACTIVITY CONCERNING THE
LATTER'S RIGHT TO COMMUNICATE DIRECTLY WITH UNIT EMPLOYEES OVER MATTERS
RELATING TO THE COLLECTIVE BARGAINING RELATIONSHIP, DIRECT
COMMUNICATIONS (SUCH AS THOSE HERE INVOLVED) NECESSARILY TEND TO
UNDERMINE THE STATUS OF THE EXCLUSIVE REPRESENTATIVE, IN VIOLATION OF
THE ORDER. (REPORT NO. 62.)
COUNCIL ACTION (OCTOBER 24, 1975). THE COUNCIL HELD THAT IN
DETERMINING WHETHER A SPECIFIC COMMUNICATION IS VIOLATIVE OF THE ORDER,
THAT COMMUNICATION MUST BE JUDGED INDEPENDENTLY AND A DETERMINATION MADE
AS TO WHETHER IT CONSTITUTES, FOR EXAMPLE, AN ATTEMPT BY AGENCY
MANAGEMENT TO DEAL OR NEGOTIATE DIRECTLY WITH UNIT EMPLOYEES, OR TO
THREATEN, OR PROMISE BENEFITS TO EMPLOYEES, WHICH WOULD BE VIOLATIVE OF
THE ORDER. IN OTHER WORDS, ALL COMMUNICATIONS BETWEEN AGENCY MANAGEMENT
AND UNIT EMPLOYEES OVER MATTERS RELATING TO THE COLLECTIVE BARGAINING
RELATIONSHIP ARE NOT VIOLATIVE OF THE ORDER, AND TO THE EXTENT THAT
COMMUNICATION IS PERMISSIBLE, IT IS IMMATERIAL WHETHER SUCH
COMMUNICATION WAS PREVIOUSLY AGREED UPON BY THE EXCLUSIVE REPRESENTATIVE
AND THE AGENCY OR ACTIVITY CONCERNING THE LATTER'S RIGHT TO ENGAGE IN
SUCH COMMUNICATION. TURNING TO THE SPECIFIC COMMUNICATIONS HERE
INVOLVED, THE COUNCIL FURTHER HELD THAT SUCH COMMUNICATIONS (WHICH CAN
BE EQUATED WITH AN ATTEMPT TO BARGAIN DIRECTLY WITH EMPLOYEES, AND TO
URGE THEM TO PUT PRESSURE ON THE UNION TO TAKE CERTAIN ACTIONS) WERE IN
VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER AND UPHELD THE
ASSISTANT SECRETARY'S FINDING IN THIS REGARD AS CONSISTENT WITH THE
PURPOSES OF THE ORDER. ACCORDINGLY, PURSUANT TO SECTION 2411.18(B) OF
ITS RULES AND REGULATIONS, THE COUNCIL SUSTAINED THE ASSISTANT
SECRETARY'S DECISION AND VACATED ITS EARLIER STAY OF THAT DECISION.
THIS APPEAL FROM A DECISION AND ORDER OF THE ASSISTANT SECRETARY
ORIGINATES FROM AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1841 (UNION), CONTENDING, IN
PERTINENT PART, THAT THE DEPARTMENT OF THE NAVY, NAVAL AIR STATION,
FALLON, NEVADA (ACTIVITY), HAD VIOLATED SECTION 19(A)(1) AND (6) OF THE
ORDER BY POSTING A LETTER, WITHOUT PRIOR UNION APPROVAL, ALLEGEDLY
CONTAINING THREATS AND DEMONSTRATING THAT THE ACTIVITY HELD THE UNION IN
DISDAIN. THE LETTER WAS A COMMUNICATION FROM THE ACTIVITY'S COMMANDING
OFFICER TO THE UNION'S PRESIDENT WHICH REFLECTED EVENTS OCCURRING AT A
SPECIAL MEETING BETWEEN THE UNION'S PRESIDENT AND THE ACTIVITY'S
EXECUTIVE OFFICER HELD TO SOLVE A NEGOTIATING PROBLEM AND AN UNFAIR
LABOR PRACTICE CHARGE. THE LETTER STATED THAT: (1) IT HAD BEEN BROUGHT
TO THE ATTENTION OF THE ACTIVITY'S COMMANDING OFFICER THAT THE UNION'S
PRESIDENT HAD BEEN INVOLVED IN "HIGHLY IRREGULAR TACTICS AND PROCEDURES"
AND HAD BEEN "QUOTED AS MAKING HIGHLY SUSPICIOUS STATEMENTS, CONCERNING
MANAGEMENT, WHICH . . . (PROMPTED QUESTIONING OF) CERTAIN LOYALTIES AND
INTEGRITIES . . . IN EXERCISING THE CALLING OF . . . (HER UNION)
OFFICE"; (2) THE EXECUTIVE OFFICER "WOULD NOT BE INTIMIDATED BY ANY
'BLACKMAIL' TACTICS ON THE PART OF THE UNION"; AND (3) "ANY FURTHER
TACTICS . . . TO CONVEY THREATS, INTIMIDATIONS OR OTHERWISE SEEK TO
HAMPER THE COLLECTIVE BARGAINING PROCESS (WOULD RESULT IN THE ACTIVITY'S
CHARGING THE UNION WITH) . . . FAILING TO NEGOTIATE IN GOOD FAITH,"
SINCE SUCH ACTIONS "ARE CLEARLY RECOGNIZABLE AS VIOLATIONS UNDER THE
EXECUTIVE ORDER 11491, AS AMENDED, AND IF CONTINUED WILL RESULT IN
FORMAL CHARGES."
THE ASSISTANT SECRETARY FOUND FIRST,
. . . ABSENT MUTUAL AGREEMENT BETWEEN AN EXCLUSIVE BARGAINING
REPRESENTATIVE AND AN AGENCY
OR ACTIVITY CONCERNING THE LATTERS' RIGHT TO COMMUNICATE DIRECTLY
WITH UNIT EMPLOYEES OVER
MATTERS RELATING TO THE COLLECTIVE BARGAINING RELATIONSHIP, DIRECT
COMMUNICATIONS SUCH AS THAT
INVOLVED IN THIS SITUATION NECESSARILY TEND TO UNDERMINE THE STATUS
OF THE EXCLUSIVE
BARGAINING REPRESENTATIVE.
THE ASSISTANT SECRETARY REASONED THAT,
. . . BY DIRECTLY REPORTING TO UNIT EMPLOYEES MATTERS WHICH HAVE
ARISEN IN THE CONTEXT OF
THE COLLECTIVE BARGAINING RELATIONSHIP, AN AGENCY OR ACTIVITY
NECESSARILY UNDERMINES AN
EXCLUSIVE REPRESENTATIVE'S RIGHTS SET FORTH IN SECTION 10(E) TO BE
DEALT WITH EXCLUSIVELY IN
MATTERS AFFECTING THE TERMS AND CONDITIONS OF EMPLOYMENT OF THE UNIT
EMPLOYEES IT
REPRESENTS. ANY LESSER STANDARD CLEARLY WOULD BE IN DEROGATION OF
THE COLLECTIVE BARGAINING
RELATIONSHIP.
THE ASSISTANT SECRETARY, AFTER CONCLUDING THAT THE NEED FOR SUCH A
POLICY WAS CLEARLY DEMONSTRATED IN THIS CASE WHERE THE ACTIVITY'S
"COMMUNICATION TO UNIT EMPLOYEES CREATED AN UNFAVORABLE IMPRESSION WITH
RESPECT TO THE ACTIONS OF THE COMPLAINANT'S (UNION'S) PRESIDENT," AND,
IN HIS VIEW "NECESSARILY TENDED TO UNDERMINE THE COMPLAINANT'S EXCLUSIVE
BARGAINING STATUS," FOUND THAT THE AGENCY'S POSTING OF THE LETTER AT
ISSUE WAS "INCONSISTENT WITH ITS OBLIGATION UNDER THE ORDER TO DEAL
EXCLUSIVELY WITH THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES IN
VIOLATION OF SECTION 19(A)(6)" AND MOREOVER, "SUCH CONDUCT NECESSARILY
INTERFERED WITH THE RIGHTS OF UNIT EMPLOYEES IN VIOLATION OF SECTION
19(A)(1)."
AS A REMEDY, THE ASSISTANT SECRETARY ORDERED THE ACTIVITY TO CEASE
AND DESIST FROM SUCH POSTING OF LETTERS AND TO POST A NOTICE TO THAT
EFFECT.
THEREAFTER, THE ASSISTANT SECRETARY'S DECISION WAS APPEALED TO THE
COUNCIL BY THE AGENCY. UPON CONSIDERATION OF THE PETITION FOR REVIEW,
AND THE OPPOSITION FOR REVIEW FILED BY THE UNION, THE COUNCIL DETERMINED
THAT A MAJOR POLICY ISSUE WAS PRESENTED BY THE DECISION OF THE ASSISTANT
SECRETARY, NAMELY:
THE PROPRIETY OF THE FINDING OF THE ASSISTANT SECRETARY THAT, ABSENT
MUTUAL AGREEMENT
BETWEEN AN EXCLUSIVE BARGAINING REPRESENTATIVE AND AN AGENCY OR
ACTIVITY CONCERNING THE
LATTER'S RIGHT TO COMMUNICATE DIRECTLY WITH UNIT EMPLOYEES OVER
MATTERS RELATING TO THE
COLLECTIVE BARGAINING RELATIONSHIP, DIRECT COMMUNICATIONS (SUCH AS
THOSE INVOLVED IN THE
INSTANT CASE) NECESSARILY TEND TO UNDERMINE THE STATUS OF THE
EXCLUSIVE REPRESENTATIVE, IN
VIOLATION OF THE ORDER.
THE COUNCIL ALSO DETERMINED THAT THE AGENCY'S REQUEST FOR A STAY MET
THE CRITERIA FOR GRANTING SUCH A REQUEST AS SET FORTH IN SECTION
2411.47(C) OF ITS RULES, AND GRANTED THE REQUEST. ONLY THE UNION FILED
A BRIEF ON THE MERITS AS PROVIDED FOR IN SECTION 2411.16 OF THE
COUNCIL'S RULES.
SECTION 10(E) OF THE ORDER PROVIDES, IN PERTINENT PART, THAT:
WHEN A LABOR ORGANIZATION HAS BEEN ACCORDED EXCLUSIVE RECOGNITION, IT
IS THE EXCLUSIVE
REPRESENTATIVE OF EMPLOYEES IN THE UNIT AND IS ENTITLED TO ACT FOR
AND TO NEGOTIATE AGREEMENTS
COVERING ALL EMPLOYEES IN THE UNIT . . .
THIS CONCEPT OF "EXCLUSIVE RECOGNITION" IN THE FEDERAL SERVICE, FIRST
PROVIDED FOR UNDER EXECUTIVE ORDER 10988, WAS CARRIED OVER AND
STRENGTHENED UNDER EXECUTIVE ORDER 11491, AS AMENDED. IN DESCRIBING THE
OBLIGATION OWED TO AN EXCLUSIVE REPRESENTATIVE, THE REPORT OF THE
PRESIDENT'S TASK FORCE ON EMPLOYEE-MANAGEMENT RELATIONS IN THE FEDERAL
SERVICE, WHICH LED TO THE ISSUANCE OF E.O. 10988, STATED:
. . . IF AN EMPLOYEE ORGANIZATION IS CHOSEN BY THE MAJORITY OF THE
EMPLOYEES IN AN
APPROPRIATE UNIT IT BECOMES THE ONLY FORMAL RECOGNIZED REPRESENTATIVE
FOR THE UNIT. IN ITS
DEALINGS WITH MANAGEMENT OFFICIALS IT IS CONSIDERED TO SPEAK FOR ALL
OF THE EMPLOYEES OF THE
UNIT, A RESPONSIBILITY WHICH IT MUST, OF COURSE, MEET. /1/
THUS, WHEN A LABOR ORGANIZATION HAS BEEN SELECTED AS THE EXCLUSIVE
REPRESENTATIVE OF EMPLOYEES IN AN APPROPRIATE UNIT, AGENCY MANAGEMENT
MUST DEAL WITH IT ONLY, TO THE EXCLUSION OF OTHER LABOR ORGANIZATIONS
AND WITHOUT ENGAGING IN DIRECT NEGOTIATIONS WITH UNIT EMPLOYEES OVER
MATTERS WITHIN THE SCOPE OF THE COLLECTIVE BARGAINING RELATIONSHIP. TO
PERMIT OTHERWISE WOULD ALLOW AGENCY MANAGEMENT TO AVOID THE
RESPONSIBILITY OWED TO THE EXCLUSIVE REPRESENTATIVE TO TREAT IT AS THE
ONLY FORMAL REPRESENTATIVE WHO SPEAKS FOR ALL UNIT EMPLOYEES.
WHILE THE OBLIGATION TO DEAL ONLY WITH THE EXCLUSIVE REPRESENTATIVE
OVER MATTERS RELATING TO THE COLLECTIVE BARGAINING RELATIONSHIP IS
CLEAR, THIS DOES NOT MEAN THAT ALL COMMUNICATION WITH UNIT EMPLOYEES
OVER SUCH MATTERS IS PROHIBITED. INDEED, UNDER CERTAIN CIRCUMSTANCES
AGENCY MANAGEMENT IS OBLIGATED TO ENGAGE IN COMMUNICATIONS WITH
BARGAINING UNIT EMPLOYEES REGARDING THE COLLECTIVE BARGAINING
RELATIONSHIP. FOR EXAMPLE, SECTION 1(A) OF THE ORDER REQUIRES THAT "THE
HEAD OF EACH AGENCY SHALL TAKE THE ACTION REQUIRED TO ASSURE THAT
EMPLOYEES IN THE AGENCY ARE APPRISED OF THEIR RIGHTS UNDER THIS SECTION
. . . " IN DETERMINING WHETHER A COMMUNICATION IS VIOLATIVE OF THE
ORDER, IT MUST BE JUDGED INDEPENDENTLY AND A DETERMINATION MADE AS TO
WHETHER THAT COMMUNICATION CONSTITUTES, FOR EXAMPLE, AN ATTEMPT BY
AGENCY MANAGEMENT TO DEAL OR NEGOTIATE DIRECTLY WITH UNIT EMPLOYEES OR
TO THREATEN OR PROMISE BENEFITS TO EMPLOYEES. IN REACHING THIS
DETERMINATION, BOTH THE CONTENT OF THE COMMUNICATION AND THE
CIRCUMSTANCES SURROUNDING IT MUST BE CONSIDERED. /2/ MORE SPECIFICALLY,
ALL COMMUNICATIONS BETWEEN AGENCY MANAGEMENT AND UNIT EMPLOYEES OVER
MATTERS RELATING TO THE COLLECTIVE BARGAINING RELATIONSHIP ARE NOT
VIOLATIVE. RATHER COMMUNICATIONS WHICH, FOR EXAMPLE, AMOUNT TO AN
ATTEMPT TO BYPASS THE EXCLUSIVE REPRESENTATIVE AND BARGAIN DIRECTLY WITH
EMPLOYEES, OR WHICH URGE EMPLOYEES TO PUT PRESSURE ON THE REPRESENTATIVE
TO TAKE A CERTAIN COURSE OF ACTION, OR WHICH THREATEN OR PROMISE
BENEFITS TO EMPLOYEES ARE VIOLATIVE OF THE ORDER. TO THE EXTENT THAT
COMMUNICATION IS PERMISSIBLE, IT IS IMMATERIAL WHETHER SUCH
COMMUNICATION WAS PREVIOUSLY AGREED UPON BY THE EXCLUSIVE REPRESENTATIVE
AND THE AGENCY OR ACTIVITY CONCERNING THE LATTER'S RIGHT TO ENGAGE IN
SUCH COMMUNICATION.
REGARDING THE INSTANT CASE, THE ASSISTANT SECRETARY FOUND THAT AGENCY
MANAGEMENT POSTED THE CONTENTS OF A LETTER TO THE UNION PRESIDENT
REFLECTING THE EVENTS WHICH OCCURRED AT A SPECIAL MEETING BETWEEN THE
EXECUTIVE OFFICER AND THE UNION PRESIDENT HELD TO SOLVE A NEGOTIATING
PROBLEM AND AN UNFAIR LABOR PRACTICE CHARGE. THIS, THEN, POSES THE
QUESTION WHETHER, IN THE CIRCUMSTANCES OF THE CASE, AGENCY MANAGEMENT'S
ACTIONS CONSTITUTED AN EFFORT TO IMPAIR THE STATUS OF THE EXCLUSIVE
REPRESENTATIVE BY ATTEMPTING TO CONVEY TO EMPLOYEES THAT THEY SHOULD
BYPASS THE UNION AND DEAL DIRECTLY WITH MANAGEMENT OR TO SOLICIT
EMPLOYEES TO CAUSE THEIR REPRESENTATIVE TO TAKE SOME PARTICULAR COURSE
OF ACTION. THE ASSISTANT SECRETARY, STATING " . . . IT IS IMPROPER FOR
AGENCIES OR ACTIVITIES TO COMMUNICATE DIRECTLY WITH UNIT EMPLOYEES WITH
RESPECT TO MATTERS RELATING TO THE COLLECTIVE BARGAINING RELATIONSHIP,"
FOUND THAT MANAGEMENT HAD VIOLATED THE ORDER. APPLYING OUR VIEWS ON THE
DIFFERENCES BETWEEN PERMISSIBLE AND PROHIBITED COMMUNICATIONS, WE FIND
NO BASIS FOR OVERTURNING THE ASSISTANT SECRETARY'S FINDINGS INSOFAR AS
THE SPECIFIC COMMUNICATIONS HERE INVOLVED. THAT IS, THE CONTENT, INTENT
AND EFFECT OF THE LETTER CAN REASONABLY BE EQUATED WITH AN ATTEMPT TO
BARGAIN DIRECTLY WITH EMPLOYEES AND TO URGE THEM TO PUT PRESSURE ON THE
UNION TO TAKE CERTAIN ACTIONS.
FOR THE FOREGOING REASONS, WHILE DETERMINING THAT THE ORDER DOES NOT
PROVIDE THAT, ABSENT MUTUAL AGREEMENT BETWEEN AN EXCLUSIVE BARGAINING
REPRESENTATIVE AND AN AGENCY OR ACTIVITY CONCERNING THE LATTER'S RIGHT
TO COMMUNICATE DIRECTLY WITH UNIT EMPLOYEES OVER MATTERS RELATING TO THE
COLLECTIVE BARGAINING RELATIONSHIP, DIRECT COMMUNICATIONS NECESSARILY
TEND TO UNDERMINE THE STATUS OF THE EXCLUSIVE REPRESENTATIVE IN
VIOLATION OF THE ORDER, WE FIND THAT THE ASSISTANT SECRETARY'S DECISION
THAT THE COMMUNICATIONS INVOLVED IN THE INSTANT CASE VIOLATED SECTION
19(A)(1) AND (6) IS CONSISTENT WITH THE PURPOSES OF THE ORDER.
ACCORDINGLY, PURSUANT TO SECTION 2411.18(B) OF THE COUNCIL'S RULES
AND REGULATIONS, WE SUSTAIN THE ASSISTANT SECRETARY'S DECISION AND
VACATE OUR EARLIER STAY OF THAT DECISION.
BY THE COUNCIL.
ISSUED: OCTOBER 24, 1975
/1/ REPORT OF THE PRESIDENT'S TASK FORCE ON EMPLOYEE-MANAGEMENT
RELATIONS IN THE FEDERAL SERVICE, A POLICY FOR EMPLOYEE-MANAGEMENT
COOPERATION IN THE FEDERAL SERVICE (1961), AT 14.
/2/ AN ANALOGOUS DISTINCTION IS THAT DRAWN IN THE COUNCIL'S RECENT
DECISION IN NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA),
WASHINGTON, D.C. AND LYNDON B. JOHNSON SPACE CENTER (NASA), HOUSTON,
TEXAS, A/SLMR NO. 457, FLRC NO. 74A-95 (SEPTEMBER 26, 1975), REPORT NO.
84, WHEREIN CERTAIN "INFORMATION GATHERING" MEETINGS BETWEEN MANAGEMENT
AND UNIT EMPLOYEES WERE FOUND NOT TO BE "FORMAL DISCUSSIONS CONCERNING
GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING
GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT," AND, ACCORDINGLY,
MANAGEMENT WAS NOT REQUIRED TO PERMIT THE UNION TO BE PRESENT AT SUCH
MEETINGS.
3 FLRC 694; FLRC NO. 75A-75; OCTOBER 23, 1975.
MS. LISA RENEE STRAX, LEGAL DEPARTMENT
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
1737 H STREET, NW.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 75A-75
U.S. DEPARTMENT OF THE INTERIOR, U.S. GEOLOGICAL SURVEY,
MID-CONTINENT MAPPING CENTER, A/SLMR NO. 495. IN A PRIOR APPEAL
INVOLVING THIS REPRESENTATION CASE, AND BEFORE AN ELECTION WAS
CONDUCTED, THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES (NFFE) FILED A
PETITION FOR REVIEW AND REQUEST FOR A STAY OF THE ASSISTANT SECRETARY'S
DECISION AND DIRECTION OF ELECTION. NOTING THAT NO FINAL DISPOSITION OF
THE CASE HAD BEEN RENDERED, THE COUNCIL DENIED THE PETITION AND STAY
REQUEST UNDER SECTION 2411.41 OF ITS RULES OF PROCEDURE WHICH PROHIBITS
INTERLOCUTORY APPEALS (MAY 22, 1975, REPORT NO. 72). SUBSEQUENTLY, THE
ASSISTANT REGIONAL DIRECTOR DISMISSED NFFE'S PETITION FOR AN ELECTION
BECAUSE OF NFFE'S FAILURE TO COOPERATE WITH THE ASSISTANT SECRETARY'S
PROCESSES AND INFORMED NFFE OF ITS RIGHT TO APPEAL HIS ACTION TO THE
ASSISTANT SECRETARY. NFFE TOOK NO APPEAL TO THE ASSISTANT SECRETARY,
BUT RESUBMITTED TO THE COUNCIL ITS PREVIOUSLY DENIED APPEAL FROM THE
ASSISTANT SECRETARY'S ORIGINAL DECISION AND DIRECTION OF ELECTION.
COUNCIL ACTION (OCTOBER 23, 1975). THE COUNCIL HELD THAT WHEN THERE
HAS BEEN A FAILURE TO COOPERATE, AS IN THIS CASE, AND WHEN BECAUSE OF
THAT FAILURE THE ASSISTANT REGIONAL DIRECTOR HAS DISMISSED A PETITION
FOR ELECTION, THE INTENT OF THE COUNCIL'S RULES PRECLUDES THE
NON-COOPERATING PARTY FROM RELYING UPON THAT DISMISSAL TO OBTAIN COUNCIL
REVIEW OF THE ASSISTANT SECRETARY'S ORIGINAL DECISION. ACCORDINGLY, AS
NFEE'S APPEAL FAILED TO MEET THE REQUIREMENTS OF THE COUNCIL'S RULES,
THE COUNCIL DENIED NFFE'S PETITION FOR REVIEW.
DEAR MS. STRAX:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
YOUR APPEAL IS BASED UPON EVENTS WHICH AROSE WHEN THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES (THE UNION) SOUGHT AN ELECTION IN A UNIT
OF ALL NONSUPERVISORY, FIELD-BASED CARTOGRAPHIC TECHNICIANS AND SURVEY
TECHNICIANS ASSIGNED TO THE BRANCH OF FIELD SURVEYS OF THE U.S.
GEOLOGICAL SURVEY'S MID-CONTINENT MAPPING CENTER (THE ACTIVITY). THE
ASSISTANT SECRETARY DETERMINED, IN PERTINENT PART THAT, WITH THE
EXCEPTION OF CARTOGRAPHIC TECHNICIANS ENGAGED PRIMARILY IN "ELEVATION
METER OPERATIONS," ALL OTHER TECHNICIANS IN THE UNION'S PROPOSED UNIT
WERE SUPERVISORS UNDER SECTION 2(C) OF THE ORDER. ACCORDINGLY, THE
ASSISTANT SECRETARY FOUND APPROPRIATE A UNIT COMPRISING ONLY FIELD-BASED
CARTOGRAPHIC TECHNICIANS ENGAGED IN ELEVATION METER OPERATIONS AND
DIRECTED THAT, IF WARRANTED BY THE UNION'S SHOWING OF INTEREST, AN
ELECTION BE HELD WITHIN THAT UNIT.
PRIOR TO ELECTION, THE UNION FILED WITH THE COUNCIL A PETITION FOR
REVIEW OF THE ASSISTANT SECRETARY'S DECISION AND A REQUEST FOR A STAY
THEREOF. /1/ NOTING THAT NO FINAL DISPOSITION OF THE CASE HAD BEEN
RENDERED, THE COUNCIL DENIED THAT PETITION AND REQUEST UNDER SECTION
2411.41 OF ITS RULES. IN SO DOING, THE COUNCIL STATED:
SECTION 2411.41 OF THE COUNCIL'S RULES OF PROCEDURE PROHIBITS
INTERLOCUTORY APPEALS. THAT
IS, THE COUNCIL WILL NOT CONSIDER A PETITION FOR REVIEW OF AN
ASSISTANT SECRETARY'S DECISION
UNTIL A FINAL DECISION HAS BEEN RENDERED ON THE ENTIRE PROCEEDING
BEFORE HIM. MORE
PARTICULARLY, IN A CASE SUCH AS HERE INVOLVED, THE COUNCIL WILL
ENTERTAIN AN APPEAL ONLY AFTER
A CERTIFICATION OF REPRESENTATIVE OR OF THE RESULTS OF THE ELECTION
HAS ISSUED, OR AFTER OTHER
FINAL DISPOSITION HAS BEEN MADE OF THE ENTIRE REPRESENTATION MATTER
BY THE ASSISTANT
SECRETARY. (EMPHASIS SUPPLIED.)
SUBSEQUENTLY, THE ASSISTANT REGIONAL DIRECTOR (ARD), FINDING THAT THE
UNION HAD "FAILED TO COOPERATE WITH THE ASSISTANT SECRETARY IN ARRANGING
A PRE-ELECTION CONFERENCE TO OBTAIN A DIRECTED ELECTION AGREEMENT,"
DISMISSED THE UNION'S PETITION FOR ELECTION. IN HIS LETTER OF
DISMISSAL, THE ARD INFORMED THE UNION OF ITS RIGHT, PURSUANT TO SECTION
202.6(D) OF THE ASSISTANT SECRETARY'S REGULATIONS, TO "APPEAL THIS
ACTION BY FILING A REQUEST FOR REVIEW WITH THE ASSISTANT SECRETARY . . .
" NO SUCH REQUEST FOR REVIEW WAS FILED. INSTEAD, THE UNION RESUBMITTED
TO THE COUNCIL ITS PREVIOUSLY DENIED APPEAL FROM THE ASSISTANT
SECRETARY'S ORIGINAL DECISION AND DIRECTION OF ELECTION-- ASSERTING IN
EFFECT THAT ITS APPEAL THEREFROM WAS NO LONGER INTERLOCUTORY IN VIEW OF
THE ARD'S DISMISSAL OF THE UNION'S PETITION FOR ELECTION BECAUSE OF ITS
FAILURE TO COOPERATE.
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW FAILS TO MEET THE
REQUIREMENTS OF THE COUNCIL'S RULES AS APPLIED IN A CASE SUCH AS HERE
INVOLVED. THAT IS, BECAUSE OF THE UNION'S FAILURE TO COOPERATE WITH THE
PROCESSES OF THE ASSISTANT SECRETARY, NO ELECTION HAS BEEN HELD AS
PROVIDED FOR IN THE CIRCUMSTANCES OF THIS CASE AND, ACCORDINGLY, NO
"CERTIFICATION OF REPRESENTATION OR OF THE RESULTS OF THE ELECTION HAS
ISSUED." LIKEWISE, WHEN THE ASSISTANT SECRETARY HAS DETERMINED THAT AN
ELECTION IS APPROPRIATE TO RESOLVE A GIVEN QUESTION CONCERNING
REPRESENTATION AND HAS MADE AVAILABLE TO THE PARTIES PROCEDURES FOR
OBTAINING THAT ELECTION, THE PHRASE "FINAL DISPOSITION . . . OF THE
ENTIRE REPRESENTATION MATTER" CLEARLY CONTEMPLATES THAT THE ELECTION BE
HELD OR, AS A MINIMUM, THAT IT NOT BE FORECLOSED MERELY BECAUSE THE
PARTY SEEKING TO CHALLENGE THE ASSISTANT SECRETARY'S DECISION HAS FAILED
TO COOPERATE IN PERMITTING IT TO BE HELD. WHEN THERE HAS BEEN SUCH A
FAILURE TO COOPERATE, AS IN THIS CASE, AND WHEN BECAUSE OF THAT FAILURE
THE ASSISTANT REGIONAL DIRECTOR HAS DISMISSED THE PETITION FOR ELECTION,
THE INTENT OF THE COUNCIL'S RULES PRECLUDES THE NONCOOPERATING PARTY
FROM RELYING UPON THAT DISMISSAL TO OBTAIN COUNCIL REVIEW OF THE
ASSISTANT SECRETARY'S ORIGINAL DECISION. CF. VETERANS ADMINISTRATION
HOSPITAL, BROCKTON, MASSACHUSETTS, A/SLMR NO. 21, FLRC NO. 71A-17 (JUNE
11, 1971), REPORT NO. 11.
ACCORDINGLY, AS YOUR APPEAL FAILS TO MEET THE REQUIREMENTS OF THE
COUNCIL'S RULES, YOUR PETITION FOR REVIEW IS DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
H. D. JASCOURT
DEPT. OF INTERIOR
/1/ U.S. DEPARTMENT OF THE INTERIOR, U.S. GEOLOGICAL SURVEY,
MID-CONTINENT MAPPING CENTER, A/SLMR NO. 495, FLRC NO. 75A-49 (MAY 22,
1975), REPORT NO. 72.
3 FLRC 686; FLRC NO. 74A-54; OCTOBER 23, 1975.
UNITED STATES DEPARTMENT OF THE NAVY,
NAVAL ORDNANCE STATION,
LOUISVILLE, KENTUCKY
AND
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS,
AFL-CIO, LOCAL LODGE 830
(SYNOPSIS) FLRC NO. 74A-54
UNITED STATES DEPARTMENT OF THE NAVY, NAVAL ORDNANCE STATION,
LOUISVILLE, KENTUCKY, A/SLMR NO. 400. THIS APPEAL AROSE FROM A DECISION
AND ORDER OF THE ASSISTANT SECRETARY WHO FOUND, AMONG OTHER THINGS, THAT
THE ACTIVITY WAS IN VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER
BY REFUSING TO ALLOW THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, LOCAL LODGE 830, AFL-CIO TO REPRESENT THE INTERESTS
OF AN EMPLOYEE IN THE BARGAINING UNIT IN AN ADVERSE ACTION PROCEEDING
UNTIL THE EMPLOYEE HAS CHOSEN A REPRESENTATIVE. UPON APPEAL BY THE
AGENCY, THE COUNCIL ACCEPTED THE CASE FOR REVIEW ON TWO MAJOR POLICY
ISSUES PRESENTED BY THE ASSISTANT SECRETARY'S DECISION, NAMELY:
1. WHETHER SECTION 10(E) OF THE ORDER IMPOSES UPON A LABOR
ORGANIZATION HOLDING EXCLUSIVE
RECOGNITION AN OBLIGATION TO REPRESENT A BARGAINING UNIT EMPLOYEE IN
AN ADVERSE ACTION
PROCEEDING UNTIL SUCH TIME AS THE EMPLOYEE INDICATES A DESIRE TO
CHOOSE HIS OWN
REPRESENTATIVE.
2. WHETHER AN AGENCY'S FAILURE TO RECOGNIZE A LABOR ORGANIZATION'S
STATUS AS AN EMPLOYEE'S
REPRESENTATIVE IN AN ADVERSE ACTION PROCEEDING, UNTIL THE EMPLOYEE
ELECTS TO CHOOSE A
DIFFERENT REPRESENTATIVE, CONSTITUTES AN UNFAIR LABOR PRACTICE UNDER
THE ORDER.
COUNCIL ACTION (OCTOBER 23, 1975). THE COUNCIL CONCLUDED THAT:
1. SECTION 10(E) DOES NOT IMPOSE UPON A LABOR ORGANIZATION HOLDING
EXCLUSIVE RECOGNITION
AN OBLIGATION TO REPRESENT A BARGAINING UNIT EMPLOYEE IN AN ADVERSE
ACTION PROCEEDING UNTIL
SUCH TIME AS THE EMPLOYEE INDICATES A DESIRE TO CHOOSE HIS OWN
REPRESENTATIVE.
2. AN AGENCY'S FAILURE TO RECOGNIZE A LABOR ORGANIZATION'S STATUS AS
AN EMPLOYEE'S
REPRESENTATIVE IN AN ADVERSE ACTION PROCEEDING, UNTIL THE EMPLOYEE
DESIGNATES ANOTHER
REPRESENTATIVE, DOES NOT CONSTITUTE AN UNFAIR LABOR PRACTICE.
THEREFORE, PURSUANT TO SECTION 2411.18(B) OF ITS RULES OF PROCEDURE,
THE COUNCIL SET ASIDE THE ASSISTANT SECRETARY'S UNFAIR LABOR PRACTICE
FINDING AND REMANDED THE MATTER TO THE ASSISTANT SECRETARY FOR
APPROPRIATE ACTION CONSISTENT WITH THE COUNCIL'S DECISION.
THIS APPEAL AROSE FROM A DECISION AND ORDER OF THE ASSISTANT
SECRETARY WHO FOUND, AMONG OTHER THINGS, THAT THE NAVAL ORDNANCE
STATION, LOUISVILLE, KENTUCKY (THE ACTIVITY) WAS IN VIOLATION OF SECTION
19(A)(1) AND (6) OF THE ORDER BY FAILING TO RECOGNIZE LOCAL LODGE 830,
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS (THE
UNION) AS THE REPRESENTATIVE OF A UNIT EMPLOYEE WHO WAS INVOLVED IN AN
ADVERSE ACTION PROCEEDING.
THE RELEVANT FACTS, AS FOUND BY THE ADMINISTRATIVE LAW JUDGE (ALJ)
AND ADOPTED BY THE ASSISTANT SECRETARY, ARE AS FOLLOWS: THE ACTIVITY
SERVED UPON AN EMPLOYEE WHO WAS A MEMBER OF THE UNION'S EXCLUSIVE
BARGAINING UNIT A NOTICE OF PROPOSED REMOVAL, WHICH PROVIDED, IN
PERTINENT PART, THAT:
YOU MAY REPLY TO THIS NOTICE PERSONALLY OR IN WRITING, OR BOTH . . .
YOU WILL BE ALLOWED
TEN (10) CALENDAR DAYS FROM RECEIPT OF THIS NOTICE TO REPLY . . .
CONSIDERATION WILL BE GIVEN
TO EXTENDING THIS PERIOD IF YOU SUBMIT A REQUEST STATING YOUR REASONS
FOR NEEDING MORE
TIME. IF YOU REPLY PERSONALLY, YOU MAY BE ACCOMPANIED BY ANY ONE
PERSON OF YOUR CHOICE WHO IS
WILLING TO REPRESENT YOU . . .
NEAR THE END OF THE PERIOD PROVIDED FOR RESPONSE IN THE NOTICE, THE
EMPLOYEE BECAME ILL AND WAS HOSPITALIZED. UPON HEARING OF THE
EMPLOYEE'S CONDITION, THE UNION'S CHIEF STEWARD, PURPORTING TO ACT FOR
THE EMPLOYEE, SOUGHT AN EXTENSION OF THE TIME LIMIT SPECIFIED FOR REPLY
TO THE NOTICE OF PROPOSED REMOVAL. THE REQUEST WAS DENIED BY THE
ACTIVITY ON THE GROUND THAT THE EMPLOYEE INVOLVED HAD NOT DESIGNATED THE
CHIEF STEWARD AS HIS REPRESENTATIVE AS REQUIRED BY THE NOTICE OF
PROPOSED REMOVAL AND BY PERTINENT NAVY REGULATIONS. /1/ AFTER
EXPIRATION OF THE ORIGINALLY SPECIFIED NOTICE PERIOD, THE ACTIVITY
ADVISED THE EMPLOYEE OF ITS DECISION TO REMOVE HIM. THE EMPLOYEE
SUBSEQUENTLY APPEALED THE DECISION TO REMOVE HIM TO THE CIVIL SERVICE
COMMISSION UNDER THE APPROPRIATE ADVERSE ACTION APPEALS PROCEDURES, AND
THE ACTIVITY'S ACTION WAS SUSTAINED BY BOTH THE COMMISSION'S ATLANTA
REGIONAL OFFICE AND THE BOARD OF APPEALS AND REVIEW. DURING THE
PENDENCY OF THE PROCEEDINGS BEFORE THE CIVIL SERVICE COMMISSION, THE
UNION INITIATED THE UNFAIR LABOR PRACTICE PROCEEDINGS WHICH ARE THE
SUBJECT OF THIS APPEAL.
IN DECIDING THAT THE ACTIVITY HAD VIOLATED SECTION 19(A)(1) AND (6)
OF THE ORDER, /2/ THE ASSISTANT SECRETARY FOUND, IN PERTINENT PART:
SECTION 10(E) OF THE ORDER CLEARLY IMPOSES UPON EXCLUSIVE
REPRESENTATIVES AN AFFIRMATIVE
OBLIGATION TO REPRESENT THE INTERESTS OF ALL UNIT EMPLOYEES. UNDER
THE PARTICULAR
CIRCUMSTANCES OF THIS CASE INVOLVING A UNIT EMPLOYEE WHO IS SUBJECT
TO AN ADVERSE ACTION
PROCEEDING, I FIND THAT THE COMPLAINANT (THE EMPLOYEE'S EXCLUSIVE
REPRESENTATIVE) HAD AN
ONGOING OBLIGATION UNDER SECTION 10(E) OF THE ORDER TO REPRESENT THE
INTERESTS OF THE EMPLOYEE
UNTIL SUCH TIME AS HE INDICATED HIS DESIRE TO CHOOSE HIS OWN
REPRESENTATIVE PURSUANT TO
SECTION 7(D)(1) OF THE ORDER. (FOOTNOTES OMITTED.)
HE FURTHER FOUND THAT:
. . . THE RESPONDENT'S FAILURE TO RECOGNIZE THE COMPLAINANT AS THE
REPRESENTATIVE OF THE
UNIT EMPLOYEE INVOLVED IN THE ADVERSE ACTION PROCEEDING WAS IN
DEROGATION OF THE COMPLAINANT'S
EXCLUSIVE REPRESENTATIVE STATUS AND, THEREBY, VIOLATED SECTION
19(A)(6) OF THE
ORDER. MOREOVER, IN MY VIEW, SUCH CONDUCT HAD A CONCOMITANT COERCIVE
EFFECT UPON THE RIGHTS
OF UNIT EMPLOYEES ASSURED BY THE ORDER IN VIOLATION OF SECTION
19(A)(1) OF THE ORDER.
THE COUNCIL, IN RESPONSE TO THE AGENCY'S PETITION FOR REVIEW, GRANTED
A STAY OF PERTINENT PORTIONS OF THE ASSISTANT SECRETARY'S DECISION AND
ORDER AND ACCEPTED THE CASE FOR REVIEW ON TWO MAJOR POLICY ISSUES AS SET
FORTH BELOW. THE AGENCY CHOSE TO STAND ON THE VIEWS SET FORTH IN ITS
PETITION FOR REVIEW. THE UNION FILED A BRIEF ON THE MERITS.
THE TWO MAJOR POLICY ISSUES PRESENTED IN THIS CASE ARE AS FOLLOWS:
1. WHETHER SECTION 10(E) OF THE ORDER IMPOSES UPON A LABOR
ORGANIZATION HOLDING EXCLUSIVE
RECOGNITION AN OBLIGATION TO REPRESENT A BARGAINING UNIT EMPLOYEE IN
AN ADVERSE ACTION
PROCEEDING UNTIL SUCH TIME AS THE EMPLOYEE INDICATES A DESIRE TO
CHOOSE HIS OWN
REPRESENTATIVE.
2. WHETHER AN AGENCY'S FAILURE TO RECOGNIZE A LABOR ORGANIZATION'S
STATUS AS AN EMPLOYEE'S
REPRESENTATIVE IN AN ADVERSE ACTION PROCEEDING, UNTIL THE EMPLOYEE
ELECTS TO CHOOSE A
DIFFERENT REPRESENTATIVE, CONSTITUTES AN UNFAIR LABOR PRACTICE UNDER
THE ORDER.
EACH OF THESE ISSUES WILL BE CONSIDERED SEPARATELY BELOW.
ISSUE 1. THE ASSISTANT SECRETARY FOUND THAT SECTION 10(E) OF THE
ORDER "CLEARLY IMPOSES UPON EXCLUSIVE REPRESENTATIVES AN AFFIRMATIVE
OBLIGATION TO REPRESENT THE INTERESTS OF ALL UNIT EMPLOYEES" AND HENCE,
IMPOSES UPON THE UNION IN THE CIRCUMSTANCES OF THIS CASE "AN ONGOING
OBLIGATION UNDER SECTION 10(E) OF THE ORDER TO REPRESENT THE INTERESTS
OF THE EMPLOYEE UNTIL SUCH TIME AS HE INDICATED HIS DESIRE TO CHOOSE HIS
OWN REPRESENTATIVE PURSUANT TO SECTION 7(D)(1) OF THE ORDER."
IN SO FINDING, THE ASSISTANT SECRETARY CITED, WITH EMPHASIS, CERTAIN
PORTIONS OF SECTION 10(E) OF THE ORDER, AS FOLLOWS:
WHEN A LABOR ORGANIZATION HAS BEEN ACCORDED EXCLUSIVE RECOGNITION, IT
IS THE EXCLUSIVE
REPRESENTATIVE OF EMPLOYEES IN THE UNIT AND IS ENTITLED TO ACT FOR
AND TO NEGOTIATE AGREEMENTS
COVERING ALL EMPLOYEES IN THE UNIT. IT IS RESPONSIBLE FOR
REPRESENTING THE INTERESTS OF ALL
EMPLOYEES IN THE UNIT WITHOUT DISCRIMINATION AND WITHOUT REGARD TO
LABOR ORGANIZATION
MEMBERSHIP . . .
THE COUNCIL HAS CONCLUDED THAT THIS RELIANCE UPON THE FIRST AND
SECOND SENTENCES OF SECTION 10(E) IS MISPLACED AND CONSTITUTES A
MISINTERPRETATION OF SECTION 10(E). THE FIRST SENTENCE OF SECTION 10(E)
IS A STATEMENT OF CERTAIN RIGHTS OF REPRESENTATION WHICH MUST BE
ACCORDED A LABOR ORGANIZATION WHICH HAS ACQUIRED EXCLUSIVE RECOGNITION
IN A BARGAINING UNIT. THAT IS, THE FIRST SENTENCE PROVIDES THAT AN
EXCLUSIVE REPRESENTATIVE IS ENTITLED TO ACT FOR AND TO NEGOTIATE
AGREEMENTS COVERING ALL EMPLOYEES IN THE UNIT. THE SECOND SENTENCE
IMPOSES CERTAIN OBLIGATIONS UPON A LABOR ORGANIZATION WHEN IT ACQUIRES
THE RIGHTS OF AN EXCLUSIVE REPRESENTATIVE. THAT IS: "IT (THE EXCLUSIVE
REPRESENTATIVE) IS RESPONSIBLE FOR REPRESENTING THE INTERESTS OF ALL
EMPLOYEES IN THE UNIT WITHOUT DISCRIMINATION AND WITHOUT REGARD TO LABOR
ORGANIZATION MEMBERSHIP." IN RELYING UPON ONLY THAT PORTION OF THE
SECOND SENTENCE WHICH IS NOT UNDERSCORED HERE, THE ASSISTANT SECRETARY
ERRONEOUSLY FOUND AN OBLIGATION IMPOSED ON THE EXCLUSIVE REPRESENTATIVE
BEYOND THAT WHICH WAS INTENDED BY THE ORDER. TAKEN AS A WHOLE, THIS
SECOND SENTENCE DOES NOT OBLIGATE THE EXCLUSIVE BARGAINING AGENT TO
REPRESENT THE INTERESTS OF UNIT EMPLOYEES IN ALL CIRCUMSTANCES. RATHER,
AS MAY BE SEEN FROM THAT PART OF THE SECOND SENTENCE WHICH WE HAVE
UNDERSCORED, THE EXCLUSIVE REPRESENTATIVE IS ENJOINED TO ACT WITHOUT
DISCRIMINATION AND WITHOUT REGARD TO UNION MEMBERSHIP WHEN REPRESENTING
OR NEGOTIATING AN AGREEMENT ON BEHALF OF UNIT EMPLOYEES WITHIN THE SCOPE
OF ITS AUTHORITY UNDER THE ORDER. IN SUMMARY, THE SECOND SENTENCE OF
SECTION 10(E) DOES NOT IMPOSE AN AFFIRMATIVE DUTY ON THE EXCLUSIVE
REPRESENTATIVE TO ACT FOR UNIT EMPLOYEES WHENEVER IT IS EMPOWERED TO DO
SO UNDER THE ORDER, BUT ONLY PRESCRIBES THE MANNER IN WHICH THE
EXCLUSIVE REPRESENTATIVE MUST PROVIDE ITS SERVICES TO UNIT EMPLOYEES
WHEN ACTING WITHIN ITS SCOPE OF AUTHORITY ESTABLISHED BY OTHER
PROVISIONS OF THE ORDER.
IN CONCLUSION, WITH RESPECT TO THE FIRST ISSUE RAISED, SECTION 10(E)
OF THE ORDER DOES NOT IMPOSE UPON A LABOR ORGANIZATION HOLDING EXCLUSIVE
RECOGNITION AN OBLIGATION TO REPRESENT A BARGAINING UNIT EMPLOYEE IN AN
ADVERSE ACTION PROCEEDING UNTIL SUCH TIME AS THE EMPLOYEE INDICATES A
DESIRE TO CHOOSE HIS OWN REPRESENTATIVE. /3/
ISSUE 2. WE HAVE CONCLUDED ABOVE THAT AN EXCLUSIVE REPRESENTATIVE
HAS NO OBLIGATION UNDER THE ORDER TO REPRESENT UNIT EMPLOYEES IN AN
ADVERSE ACTION PROCEEDING. HOWEVER, WE ALSO NOTED THAT THE FIRST
SENTENCE OF SECTION 10(E) ACCORDS SUCH EXCLUSIVE REPRESENTATIVE THE
RIGHT TO ACT FOR AND TO NEGOTIATE AGREEMENTS COVERING ALL EMPLOYEES IN
THE UNIT. WE NEXT CONSIDER WHETHER THOSE RIGHTS MAY EXTEND TO THE
REPRESENTATION OF AN INDIVIDUAL BARGAINING UNIT EMPLOYEE IN AN ADVERSE
ACTION PROCEEDING, AND IF SO, WHETHER THE UNION HAD SUCH RIGHTS IN THE
CIRCUMSTANCES OF THIS CASE. ONLY IF WE ARE ABLE TO ANSWER BOTH
QUESTIONS IN THE AFFIRMATIVE MAY WE CONCLUDE THAT AN AGENCY'S FAILURE TO
RECOGNIZE A LABOR ORGANIZATION'S STATUS AS AN EMPLOYEE'S REPRESENTATIVE
IN AN ADVERSE ACTION PROCEEDING, UNTIL THE EMPLOYEE ELECTS TO CHOOSE A
DIFFERENT REPRESENTATIVE, CONSTITUTES AN UNFAIR LABOR PRACTICE UNDER THE
ORDER AND, HENCE, SUSTAIN THE ASSISTANT SECRETARY'S FINDING THAT THE
AGENCY VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER.
CLEARLY, THE EXPRESS LANGUAGE OF THE FIRST SENTENCE OF SECTION 10(E)
ACCORDS THE EXCLUSIVE REPRESENTATIVE THE RIGHT TO NEGOTIATE AN AGREEMENT
COVERING ALL UNIT EMPLOYEES, WHICH RIGHT TO NEGOTIATE MAY NOT BE
PRECONDITIONED UPON THE DESIRES OF ANY INDIVIDUAL MEMBER OF THE
BARGAINING UNIT. BY NEGOTIATING SUCH AN AGREEMENT, THE EXCLUSIVE
REPRESENTATIVE IS EXERCISING ITS RIGHT "TO ACT FOR . . . ALL EMPLOYEES
IN THE UNIT." SIMILARLY, AN EXCLUSIVE REPRESENTATIVE, IN THE
ADMINISTRATION OF A NEGOTIATED AGREEMENT, MUST BE ABLE TO ACT FOR ALL
UNIT EMPLOYEES WHERE NECESSARY TO PRESERVE AND EFFECTUATE RIGHTS SECURED
FOR ALL UNIT EMPLOYEES THROUGH THE COLLECTIVE BARGAINING PROCESS. IN
SHORT, WHENEVER AN EXCLUSIVE REPRESENTATIVE IS REPRESENTING ALL UNIT
EMPLOYEES WITHIN THE SCOPE OF ITS AUTHORITY UNDER THE AGREEMENT AND/OR
THE ORDER, ITS RIGHT TO ACT FOR SUCH UNIT EMPLOYEES IS NOT CONTINGENT
UPON THE PRIOR DESIGNATION OF ONE OR MORE INDIVIDUAL EMPLOYEES IN THE
UNIT.
IN OUR OPINION, THE FIRST SENTENCE OF SECTION 10(E) WHICH EMPOWERS AN
EXCLUSIVE REPRESENTATIVE TO ACT FOR ALL UNIT EMPLOYEES AS NOTED ABOVE
ALSO AUTHORIZES IT TO ACT FOR OR ON BEHALF OF AN INDIVIDUAL UNIT
EMPLOYEE. HOWEVER, AS WE INTERPRET THE FIRST SENTENCE OF SECTION 10(E),
THE EXCLUSIVE REPRESENTATIVE'S RIGHT TO ACT FOR OR REPRESENT AN
INDIVIDUAL UNIT EMPLOYEE, AS DISTINGUISHED FROM ITS RIGHT TO ACT FOR ALL
UNIT EMPLOYEES, IS NOT WITHOUT LIMITATION. THAT IS, WHILE A LABOR
ORGANIZATION MAY ON ITS OWN INITIATIVE ACT ON BEHALF OF A UNIT EMPLOYEE
PURSUANT TO ITS AUTHORITY UNDER CONTRACT OR THE ORDER, SUCH A RIGHT IS
NOT INHERENT WHERE, AS HERE, IT CONCERNS AN EMPLOYEE'S ADVERSE ACTION
PROCEEDING, WHICH IS A PROCEDURE ESTABLISHED PURSUANT TO LAW AND
REGULATION RATHER THAN BY AGREEMENT OR THE ORDER. SUCH MATTERS, WHICH
ARE FUNDAMENTALLY PERSONAL TO THE INDIVIDUAL AND ONLY REMOTELY RELATED
TO THE RIGHTS OF THE OTHER UNIT EMPLOYEES, ARE NOT AUTOMATICALLY WITHIN
THE SCOPE OF THE EXCLUSIVE REPRESENTATIVE'S 10(E) RIGHTS, WHICH ARE
PROTECTED BY THE ORDER. THIS IS NOT TO SAY, HOWEVER, THAT A RIGHT COULD
NOT BE ACCORDED TO THE EXCLUSIVE REPRESENTATIVE TO ACT ON BEHALF OF
INDIVIDUAL UNIT EMPLOYEES. CERTAINLY THE PARTIES TO AN EXCLUSIVE
RELATIONSHIP COULD NEGOTIATE RIGHTS TO BE ACCORDED THE EXCLUSIVE
REPRESENTATIVE RELATED TO INDIVIDUAL EMPLOYEE ADVERSE ACTIONS SO LONG AS
THEY WERE OTHERWISE CONSISTENT WITH APPLICABLE LAW AND REGULATIONS.
HOWEVER, IT SHOULD BE NOTED HERE THAT THE PARTIES, IN NEGOTIATING THE
AGREEMENT WHICH WAS EFFECTIVE WHEN THE EVENTS INVOLVED HEREIN AROSE HAD
PROVIDED ONLY THAT "THE EMPLOYEE MAY BE REPRESENTED BY HIS UNION
REPRESENTATIVE OR ANY PERSON OF HIS CHOICE WHO IS WILLING TO REPRESENT
HIM . . . " /4/ THIS, IT WAS RECOGNIZED THAT BEFORE THE EXCLUSIVE
REPRESENTATIVE HAD THE RIGHT TO ACT FOR THE INDIVIDUAL, THERE HAD TO BE
A PRIOR CHOICE BY THE EMPLOYEE TO THAT EFFECT.
IN THE INSTANT CASE THE UNION HAD NO CONTRACTUAL RIGHT TO ACT UPON
ITS OWN INITIATIVE AND ATTEMPT TO SERVE AS THE EMPLOYEE'S REPRESENTATIVE
IN AN ADVERSE ACTION PROCEEDING. /5/ MOREOVER, AS FOUND BY THE
ASSISTANT SECRETARY, THE INDIVIDUAL EMPLOYEE HAD NOT SELECTED THE UNION
AS HIS REPRESENTATIVE AND SO ADVISED AGENCY MANAGEMENT.
THEREFORE, WITH RESPECT TO THE SECOND ISSUE RAISED, THE AGENCY'S
FAILURE TO RECOGNIZE THE LABOR ORGANIZATION'S STATUS AS AN EMPLOYEE'S
REPRESENTATIVE IN AN ADVERSE ACTION PROCEEDING, DID NOT CONSTITUTE AN
UNFAIR LABOR PRACTICE UNDER THE ORDER. /6/
IN SUMMARY, FOR THE REASONS DISCUSSED ABOVE, THE COUNCIL'S
CONCLUSIONS ARE:
1. SECTION 10(E) DOES NOT IMPOSE UPON A LABOR ORGANIZATION HOLDING
EXCLUSIVE RECOGNITION
AN OBLIGATION TO REPRESENT A BARGAINING UNIT EMPLOYEE IN AN ADVERSE
ACTION PROCEEDING UNTIL
SUCH TIME AS THE EMPLOYEE INDICATES A DESIRE TO CHOOSE HIS OWN
REPRESENTATIVE.
2. AN AGENCY'S FAILURE TO RECOGNIZE A LABOR ORGANIZATION'S STATUS AS
AN EMPLOYEE'S
REPRESENTATIVE IN AN ADVERSE ACTION PROCEEDING, UNTIL THE EMPLOYEE
DESIGNATES ANOTHER
REPRESENTATIVE, DOES NOT CONSTITUTE AN UNFAIR LABOR PRACTICE.
THEREFORE, PURSUANT TO SECTION 2411.18(B) OF THE COUNCIL'S RULES OF
PROCEDURE, WE SET ASIDE THE ASSISTANT SECRETARY'S FINDING THAT THE
UNITED STATES DEPARTMENT OF THE NAVY, NAVAL ORDNANCE STATION,
LOUISVILLE, KENTUCKY, VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY
REFUSING TO ALLOW THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, LOCAL LODGE 830, AFL-CIO, THE COMPLAINANT, TO
REPRESENT THE INTERESTS OF AN EMPLOYEE IN THE BARGAINING UNIT IN AN
ADVERSE ACTION PROCEEDING UNTIL THE EMPLOYEE HAS CHOSEN A
REPRESENTATIVE.
PURSUANT TO SECTION 2411.18(C) OF THE COUNCIL'S RULES OF PROCEDURE,
WE HEREBY REMAND THIS MATTER TO THE ASSISTANT SECRETARY FOR APPROPRIATE
ACTION CONSISTENT WITH THIS DECISION.
BY THE COUNCIL.
ISSUED: OCTOBER 23, 1975
/1/ THE NAVY REGULATION, CMMI 752, PARAGRAPH 2-5(B)(3) PROVIDES THAT
" . . . IN MAKING AN ORAL REPLY, AN EMPLOYEE MAY ELECT TO BE ACCOMPANIED
BY A REPRESENTATIVE. SINCE THE OPPORTUNITY FOR A HEARING IS ACCORDED
ONLY IN THE APPELLATE PROCESS UNDER NAVY PROCEDURE, A FORMAL HEARING
WILL NOT BE HELD." IT IS ALSO APPARENTLY NAVY POLICY (ACCORDING TO THE
AGENCY'S PETITION FOR REVIEW) TO EXTEND THE RIGHT OF REPRESENTATION TO
EMPLOYEES WISHING TO MAKE A WRITTEN RESPONSE TO THE NOTICE OF PROPOSED
ADVERSE ACTION.
FURTHER, ARTICLE 14 (ADVERSE ACTIONS AND DISCIPLINARY ACTIONS) OF THE
NEGOTIATED AGREEMENT BETWEEN THE PARTIES PROVIDES, IN RELEVANT PART:
SECTION 2. WHEN THE EMPLOYER CONTEMPLATES DISCIPLINARY OR ADVERSE
ACTION AGAINST AN
EMPLOYEE, THE EMPLOYEE WILL BE NOTIFIED IN WRITING, OF THE PROPOSED
ACTION AND THE REASONS
THEREFOR. SUCH ACTIONS MUST BE FOR JUST CAUSE AND THE EMPLOYEE SHALL
HAVE THE OPPORTUNITY TO
REPLY TO THE CHARGES, PERSONALLY AND/OR IN WRITING, TO THE
APPROPRIATE MANAGEMENT
OFFICIAL. IN MAKING HIS REPLY, THE EMPLOYEE MAY BE REPRESENTED BY
HIS UNION REPRESENTATIVE OR
ANY PERSON OF HIS CHOICE WHO IS WILLING TO REPRESENT HIM . . .
SECTION 3. WHEN A NOTICE OF DECISION TO EFFECT A DISCIPLINARY OR
ADVERSE ACTION IS ISSUED
TO THE EMPLOYEE, AND THE EMPLOYEE APPEALS THE ACTION, BUT DOES NOT
SELECT A UNION
REPRESENTATIVE, THE UNION SHALL HAVE THE RIGHT TO HAVE AN OBSERVER
PRESENT AT THE HEARING AND
TO MAKE THE VIEWS OF THE UNION KNOWN UNDER THE CONDITIONS SET FORTH
IN APPLICABLE REGULATIONS.
/2/ SEC. 19. UNFAIR LABOR PRACTICES. (A) AGENCY MANAGEMENT SHALL
NOT--
(1) INTERFERE WITH, RESTRAIN, OR COERCE AN EMPLOYEE IN THE EXERCISE
OF THE RIGHTS ASSURED
BY THIS ORDER;
(6) REFUSE TO CONSULT, CONFER, OR NEGOTIATE WITH A LABOR ORGANIZATION
AS REQUIRED BY THIS
ORDER.
/3/ HAVING DETERMINED THAT SECTION 10(E) OF THE ORDER DOES NOT IMPOSE
UPON AN EXCLUSIVE REPRESENTATIVE AN OBLIGATION TO REPRESENT UNIT
EMPLOYEES IN AN ADVERSE ACTION PROCEEDING, IT IS UNNECESSARY TO PASS ON
THE ASSISTANT SECRETARY'S FURTHER CONCLUSION THAT SUCH OBLIGATION
CONTINUES UNTIL THE EMPLOYEE CHOOSES HIS OWN REPRESENTATIVE IN A
GRIEVANCE OR APPELLATE ACTION PURSUANT TO SECTION 7(D)(1).
/4/ SEE FOOTNOTE 1, SUPRA.
/5/ WE DO NOT HERE FIND THAT SUCH A RIGHT COULD BE NEGOTIATED IN
CONFORMITY WITH LAW AND REGULATION.
/6/ IN REACHING THE ABOVE CONCLUSION, WE HAVE ADDRESSED ONLY THE
QUESTION OF THE UNION'S RIGHTS UNDER THE ORDER TO REPRESENT A UNIT
EMPLOYEE IN AN ADVERSE ACTION PROCEEDING PRIOR TO THE AGENCY'S
IMPOSITION OF DISCIPLINARY ACTION. NO ISSUE WAS PRESENTED CONCERNING
THE INDIVIDUAL EMPLOYEE'S RIGHTS UNDER THE ORDER, AND THAT QUESTION HAS
NOT BEEN CONSIDERED BY THE COUNCIL.
AS PREVIOUSLY NOTED, HOWEVER, AFTER THE AGENCY TOOK ADVERSE ACTION
AGAINST THE INDIVIDUAL EMPLOYEE HEREIN, HE APPEALED SUCH ACTION PURSUANT
TO PART 772 OF THE CIVIL SERVICE COMMISSION RULES AND REGULATIONS,
WHEREIN THE EMPLOYEE DULY REQUESTED AND WAS ACCORDED THE RIGHT TO BE
REPRESENTED BY HIS UNION REPRESENTATIVE, AND WHEREIN THE COMMISSION'S
ATLANTA REGIONAL OFFICE AND THE BOARD OF APPEALS AND REVIEW BOTH
ADDRESSED THE ISSUE OF WHETHER THE EMPLOYEE'S RIGHT TO REPRESENTATION IN
THE EARLIER STAGE OF THE ADVERSE ACTION PROCEEDING WAS DENIED. IN THIS
REGARD, THE ALJ'S REPORT AND RECOMMENDATION ON PAGES 22, 23 AND 24
QUOTES DIRECTLY FROM THE COMMISSION DECISIONS TO SHOW THAT THE
EMPLOYEE'S CLAIM OF DENIAL OF REPRESENTATION HAD BEEN REVIEWED AND
CONSIDERED, WITH PARTICULAR REFERENCE TO THE FPM AND THE PROVISIONS OF
THE NEGOTIATED AGREEMENT APPLICABLE TO THE EMPLOYEE. THE COMMISSION
DECISION FOUND THAT THERE WAS NO EVIDENCE TO SHOW THE EMPLOYEE'S RIGHTS
HAD BEEN VIOLATED, THAT HE HAD BEEN EXTENDED HIS RIGHTS, AND THAT HIS
REMOVAL WAS NOT PROCEDURALLY DEFECTIVE. OF COURSE, THE UNION'S UNFAIR
LABOR PRACTICE CLAIMS AGAINST THE AGENCY UNDER THE ORDER WERE DECLARED
"NOT AT ISSUE" IN THE FOREGOING PROCEEDING, WHICH CONCERNED ONLY THE
EMPLOYEE'S RIGHTS UNDER THE ADVERSE ACTION APPEALS PROCEDURE.
3 FLRC 679; FLRC NO. 75A-74; OCTOBER 10, 1975.
MR. G. C. GARDNER
ASSISTANT ADMINISTRATOR FOR ADMINISTRATION
GENERAL SERVICES ADMINISTRATION
1800 F STREET, NW.
WASHINGTON, D.C. 20405
(SYNOPSIS) FLRC NO. 75A-74
NATIONAL ARCHIVES AND RECORDS SERVICE AND AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2578 (STRONGIN, ARBITRATOR). THE ARBITRATOR
FOUND, AMONG OTHER THINGS, THAT THE GRIEVANT'S TERMINATION BY THE
ACTIVITY WAS NOT EFFECTUATED IN ACCORDANCE WITH THE PROVISION IN THE
PARTIES' NEGOTIATED AGREEMENT PERTAINING TO TERMINATION OF PROBATIONARY
EMPLOYEES AND DIRECTED THE GRIEVANT'S REINSTATEMENT WITH BACK PAY. THE
ARBITRATOR ALSO ASSESSED 60 PERCENT OF THE COSTS OF THE ARBITRATION TO
THE ACTIVITY PURSUANT TO THE COLLECTIVE BARGAINING AGREEMENT WHICH
PROVIDED THAT THE COSTS OF ARBITRATION WERE TO BE ASSESSED INVERSELY TO
THE MERITS OF EACH PARTY'S POSITION. THE AGENCY FILED EXCEPTIONS TO THE
ARBITRATOR'S AWARD WITH THE COUNCIL CONTENDING THAT (1) THE ARBITRATOR'S
FINDING REGARDING THE TERMINATION ACTION WAS CONTRARY TO LAW; (2) THE
AWARD OF BACK PAY WAS VIOLATIVE OF APPLICABLE LAW AND APPROPRIATE
REGULATION; AND (3) THE ARBITRATOR'S ASSESSMENT OF THE COSTS OF THE
ARBITRATION REQUIRED PAYMENT OUTSIDE THE AUTHORITY OF THE ACTIVITY TO
MAKE AND WAS CONTRARY TO LAW. THE AGENCY ALSO REQUESTED A STAY OF THE
ARBITRATOR'S AWARD.
COUNCIL ACTION (OCTOBER 10, 1975). THE COUNCIL HELD THAT THE
AGENCY'S PETITION DID NOT PRESENT FACTS AND CIRCUMSTANCES NECESSARY TO
SUPPORT ITS EXCEPTIONS. ACCORDINGLY, THE COUNCIL DENIED THE AGENCY'S
PETITION SINCE IT FAILED TO MEET THE REQUIREMENTS FOR REVIEW SET FORTH
IN SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE. LIKEWISE, UNDER
SECTION 2411.47(D) OF ITS RULES, THE COUNCIL DENIED THE AGENCY'S REQUEST
FOR A STAY.
DEAR MR. GARDNER:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF AN
ARBITRATOR'S AWARD FILED IN THE ABOVE-ENTITLED CASE.
AS STATED IN THE ARBITRATION AWARD, THE GRIEVANCE INVOLVED THE
TERMINATION OF GRIEVANT'S EMPLOYMENT WITH THE ACTIVITY. GRIEVANT
COMMENCED EMPLOYMENT WITH THE ACTIVITY AS A SUMMER AID ON JUNE 25, 1973,
AND WAS LATER APPOINTED AS A STUDENT AID ON OCTOBER 1, 1973. ON
DECEMBER 23, 1973, GRIEVANT RECEIVED A CAREER CONDITIONAL APPOINTMENT.
ON JULY 5, 1974, THE ACTIVITY TERMINATED HIM FOR POOR ATTENDANCE. AFTER
GRIEVANT'S TERMINATION BUT PRIOR TO THE ARBITRATION HEARING, THE CIVIL
SERVICE COMMISSION RULED THAT GRIEVANT'S PROBATIONARY PERIOD COMMENCED
OCTOBER 1, 1973, OVERRULING THE ACTIVITY'S PROBATIONARY PERIOD
COMMENCEMENT DATE OF DECEMBER 23, 1973.
THE ARBITRATOR FOUND, NOTWITHSTANDING HIS ACCEPTANCE OF THE
ACTIVITY'S POSITION THAT THE APPRAISAL REPORT NEED NOT BE PROVIDED TO
EMPLOYEES EMPLOYED LESS THAN EIGHT MONTHS, THAT GRIEVANT'S TERMINATION
WAS NOT EFFECTUATED IN ACCORDANCE WITH THE NEGOTIATED AGREEMENT IN THAT
THE ACTIVITY HAD FAILED TO ACCORD GRIEVANT THE PROTECTION TO WHICH HE
WAS ENTITLED UNDER ARTICLE XI, SECTION 2 OF THE AGREEMENT. /1/ IN THIS
REGARD, THE ARBITRATOR CONCLUSIVELY FOUND THAT THERE HAD BEEN NO ATTEMPT
TO PREPARE OR FURNISH GRIEVANT WITH FORM 496, AS REQUIRED BY ARTICLE XI,
SECTION 2 OF THE AGREEMENT, EVEN THOUGH OVER EIGHT MONTHS OF GRIEVANT'S
PROBATIONARY PERIOD HAD ELAPSED ACCORDING TO THE CIVIL SERVICE
COMMISSION'S DETERMINATION RESPECTING THE COMMENCEMENT DATE OF THAT
PERIOD. CONSEQUENTLY, THE ARBITRATOR DIRECTED GRIEVANT'S REINSTATEMENT
WITH BACKPAY.
PURSUANT TO THE COLLECTIVE BARGAINING AGREEMENT WHICH DIRECTED THAT
THE COSTS OF ARBITRATION WERE TO BE ASSESSED INVERSELY TO THE MERITS OF
EACH PARTY'S POSITION, THE ARBITRATOR ASSESSED 60 PERCENT OF THE COSTS
TO THE ACTIVITY.
THE AGENCY REQUESTS THAT THE COUNCIL ACCEPT ITS PETITION FOR REVIEW
OF THE ARBITRATOR'S AWARD BASED ON ITS THREE EXCEPTIONS DISCUSSED BELOW.
/2/
UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE, REVIEW OF
AN ARBITRATION AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON
THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE
EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES
APPLICABLE LAW, APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS
SIMILAR TO THOSE UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE
SUSTAINED BY COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS."
IN ITS FIRST EXCEPTION, THE AGENCY CONTENDS THAT THE DETERMINATION BY
THE ARBITRATOR THAT THE ACTIVITY VIOLATED ARTICLE XI, SECTION 2 OF THE
COLLECTIVE BARGAINING AGREEMENT VIOLATES APPLICABLE LAW. THE COUNCIL
WILL GRANT REVIEW OF AN ARBITRATION AWARD IN CASES WHERE IT APPEARS,
BASED UPON THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT
THE EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES
APPLICABLE LAW. HERE, HOWEVER, THE AGENCY CITES NO "APPLICABLE LAW" TO
SUPPORT ITS EXCEPTION. IT MERELY ASSERTS THAT THE ACTIVITY'S
INTERPRETATION AND APPLICATION OF THE AGENCY'S REGULATIONS SHOULD HAVE
BEEN DEEMED CONTROLLING AS A MATTER OF LAW BY THE ARBITRATOR. AGAIN,
THE AGENCY FAILS TO BE SPECIFIC. IT DOES NOT IDENTIFY EITHER THE
REGULATIONS OR THE ACTIVITY INTERPRETATION AND APPLICATION THEREOF WHICH
IT CONTENDS SHOULD HAVE BEEN DEEMED CONTROLLING. THE AGENCY IS
APPARENTLY MAINTAINING THAT SINCE THE ACTIVITY WAS OF THE OPINION THAT
GRIEVANT HAD BEEN EMPLOYED LESS THAN EIGHT MONTHS WHEN HE WAS
TERMINATED, THAT HIS TERMINATION WAS IN CONFORMANCE WITH THE ACTIVITY'S
CONSISTENT INTERPRETATION AND APPLICATION OF GSA ADMINISTRATIVE MANUAL,
OAD 5410.1, CHAPTER 3-28 WHICH IS INCORPORATED BY REFERENCE IN ARTICLE
XI, SECTION 2 OF THE COLLECTIVE BARGAINING AGREEMENT.
HOWEVER, AS THE COUNCIL HELD IN FEDERAL AVIATION ADMINISTRATION,
DEPARTMENT OF TRANSPORTATION AND PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION (SCHEDLER, ARBITRATOR) FLRC NO. 74A-88 (JULY 24, 1975),
REPORT NO. 78:
(WHEN) AN AGENCY VALIDLY AGREES DURING NEGOTIATIONS . . . TO
INCORPORATE . . . (A)
REGULATION ON A MATTER WITHIN AGENCY DISCRETION IN A COLLECTIVE
BARGAINING AGREEMENT, WHICH
AGREEMENT INCLUDES A GRIEVANCE AND ARBITRATION PROCEDURE, THE AGENCY
HAS THEREBY AGREED THAT
THE UNION MAY FILE A GRIEVANCE IN WHICH IT DISPUTES THE AGENCY'S
INTERPRETATION AND
APPLICATION OF THE AGREEMENT, INCLUDING SUCH AGENCY . . .
REGULATION, AND THAT, IF THE DISPUTE
IS SUBMITTED TO ARBITRATION, AN ARBITRATOR HAS AUTHORITY UNDER THE
AGREEMENT TO INTERPRET AND
APPLY ITS PROVISIONS, INCLUDING SUCH AGENCY . . . REGULATION, TO THE
FACTS IN A PARTICULAR
GRIEVANCE IN ORDER TO RESOLVE THE DISPUTE. (FOOTNOTE OMITTED.)
IN THE INSTANT CASE THE AGENCY GOES FURTHER, HOWEVER, AND DISPUTES
THE ARBITRATOR'S COGNIZANCE OF THE CIVIL SERVICE COMMISSION RULING AND
HIS RETROACTIVE APPLICATION THEREOF. THE AGENCY ESSENTIALLY ASSERTS
THAT THE ACTIVITY'S OWN DETERMINATION OF THE DATE GRIEVANT'S
PROBATIONARY PERIOD COMMENCED, MADE CONTEMPORANEOUSLY WITH HIS
TERMINATION, SHOULD BE CONTROLLING AND THAT THE ARBITRATOR, ACCORDINGLY,
UNREASONABLY ASSESSED RESPONSIBILITY FOR THE ERROR IN COMPUTING THE DATE
UPON THE ACTIVITY. THE COUNCIL, HOWEVER, WILL NOT REVIEW THE MERITS OF
AN ARBITRATION AWARD. INDEED, THE COUNCIL HAS CONSISTENTLY HELD THAT
THE INTERPRETATION OF CONTRACT PROVISIONS IS A MATTER TO BE LEFT TO THE
ARBITRATOR'S JUDGMENT IN RESOLVING THE GRIEVANCE. AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2649 AND OFFICE OF ECONOMIC
OPPORTUNITY (SISK, ARBITRATOR), FLRC NO. 74A-17 (DECEMBER 5, 1974),
REPORT NO. 61. FURTHERMORE, THE COUNCIL HAS INDICATED THAT IT IS THE
AWARD RATHER THAN THE CONCLUSION OR THE SPECIFIC REASONING EMPLOYED THAT
IS REVIEWED. OFFICE OF ECONOMIC OPPORTUNITY AND AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2677 (MATTHEWS, ARBITRATOR), FLRC NO. 74A-76
(JUNE 26, 1975), REPORT NO. 76. IT DOES NOT THUS APPEAR THAT THE
ARBITRATOR'S FINDING IN THIS REGARD VIOLATES APPLICABLE LAW. MOREOVER,
THE AGENCY READILY CONCEDED THAT THE ACTIVITY WAS BOUND BY THE RULING OF
THE CIVIL SERVICE COMMISSION. THEREFORE, THE AGENCY'S PETITION DOES NOT
PRESENT FACTS AND CIRCUMSTANCES NECESSARY TO SUPPORT THIS EXCEPTION THAT
THE ARBITRATOR'S AWARD VIOLATES APPLICABLE LAW.
IN ITS SECOND EXCEPTION, THE AGENCY CONTENDS THAT THE ARBITRATOR'S
AWARD OF BACKPAY VIOLATES APPLICABLE LAW AND APPROPRIATE REGULATION.
WHILE THIS EXCEPTION ALSO STATES A GROUND UPON WHICH THE COUNCIL WILL
GRANT REVIEW OF AN ARBITRATION AWARD, THE AGENCY FAILS TO SPECIFY THE
APPLICABLE LAW AND APPROPRIATE REGULATION VIOLATED BY THE AWARD OF
BACKPAY. THE COUNCIL ASSUMES THAT THE AGENCY CONTENDS THAT THE BACKPAY
AWARD IS CONTRARY TO THE BACK PAY ACT OF 1966 /3/ AND ITS IMPLEMENTING
REGULATIONS /4/ SINCE THESE CONSTITUTE THE CONTROLLING STATUTE AND
REGULATIONS IN MATTERS OF BACKPAY.
WITH RESPECT TO THE AUTHORITY OF AN AGENCY TO COMPLY WITH A BINDING
ARBITRATION AWARD INVOLVING PAYMENTS TO BE MADE BY THE AGENCY, THE
COMPTROLLER GENERAL ANNOUNCED IN 54 COMP.GEN. 312 (1974):
(O)NCE AN AGREEMENT WITH A LABOR ORGANIZATION IS APPROVED UNDER
SECTION 15 OF EXECUTIVE
ORDER 11491, AND THE PROVISIONS OF THE AGREEMENT ARE CONSISTENT WITH
LAWS AND REGULATIONS AND
WITHIN THE GUIDELINES OF SECTIONS 11, 12 AND 13 OF THE EXECUTIVE
ORDER, THEN, UNLESS OTHERWISE
SPECIFICALLY PROVIDED IN THE AGREEMENT, SUCH PROVISIONS BECOME
NONDISCRETIONARY AGENCY
POLICIES. FURTHER, WE BELIEVE THAT WHEN AN AGENCY, IN ITS
DISCRETION, CHOOSES TO AGREE TO
BINDING ARBITRATION, THAN A DECISION OF AN ARBITRATOR, IF OTHERWISE
PROPER, BECOMES, IN
EFFECT, THE DECISION OF THE HEAD OF THE AGENCY INVOLVED. THEREFORE,
REGARDING THE WEIGHT
WHICH THIS OFFICE SHOULD GIVE TO BINDING ARBITRATION AWARDS, ABSENT A
FINDING THAT AN
ARBITRATION AWARD IS CONTRARY TO APPLICABLE LAW, APPROPRIATE
REGULATION, EXECUTIVE ORDER
11491, OR DECISIONS OF THIS OFFICE IF THE AWARD INVOLVES PAYMENTS TO
BE MADE BY THE AGENCY
INVOLVED, WE BELIEVE THAT A BINDING ARBITRATION AWARD MUST BE GIVEN
THE SAME WEIGHT AS ANY
OTHER EXERCISE OF ADMINISTRATIVE DISCRETION, I.E., THE AUTHORITY TO
IMPLEMENT THE AWARD SHOULD
BE REFUSED ONLY IF THE AGENCY HEAD'S OWN DECISION TO TAKE THE SAME
ACTION WOULD BE DISALLOWED
BY THIS OFFICE. 54 COMP.GEN.AT 316.
WITH RESPECT TO THE STATUS OF AN ARBITRATION AWARD FINDING OF A
VIOLATION OF A COLLECTIVE BARGAINING AGREEMENT, THE COMPTROLLER GENERAL
FURTHER DECLARED THAT:
(A) VIOLATION OF A PROVISION IN A COLLECTIVE BARGAINING AGREEMENT, SO
LONG AS THAT A
PROVISION IS PROPERLY INCLUDABLE IN THE AGREEMENT, WHICH CAUSES AN
EMPLOYEE TO LOSE PAY,
ALLOWANCES OR DIFFERENTIALS, IS AS MUCH AN UNJUSTIFIED OR UNWARRANTED
PERSONNEL ACTION AS IS
AN IMPROPER SUSPENSION, FURLOUGH WITHOUT PAY, DEMOTION OR REDUCTION
IN PAY AND THAT THEREFORE
THE BACK PAY ACT IS THE APPROPRIATE STATUTORY AUTHORITY FOR
COMPENSATING THE EMPLOYEE FOR THE
PAY, ALLOWANCES OR DIFFERENTIALS HE WOULD HAVE RECEIVED BUT FOR THE
VIOLATION OF THE
AGREEMENT. ID. AT 318.
THE COMPTROLLER GENERAL CONCLUDED THAT AN ARBITRATION AWARD OF
BACKPAY PREDICATED ON A VIOLATION OF A COLLECTIVE BARGAINING AGREEMENT
WHICH RESULTED IN AN UNJUSTIFIED PERSONNEL ACTION MAY BE PROPERLY
IMPLEMENTED IF CONSISTENT WITH LAW, REGULATION AND THE DECISIONS OF THE
COMPTROLLER GENERAL. ACCORD, 54 COMP.GEN. 435 (1974) AND B-175275 (JUNE
20, 1975).
IN THE PRESENT CASE, THE ARBITRATOR FOUND THAT THE ACTIVITY FAILED TO
AFFORD GRIEVANT THE PROTECTION EXTENDED TO HIM BY THE COLLECTIVE
BARGAINING AGREEMENT. THE AGENCY HAS PROVIDED NO FACTS OR CIRCUMSTANCES
TO DEMONSTRATE THAT THE AWARD IS INCONSISTENT WITH LAW, REGULATION OR
THE DECISIONS OF THE COMPTROLLER GENERAL. SINCE THE AGENCY'S PETITION
FAILS TO PRESENT ANY FACTS AND CIRCUMSTANCES TO SUPPORT THIS EXCEPTION
THAT THE ARBITRATOR'S AWARD OF BACKPAY VIOLATES APPLICABLE LAW AND
APPROPRIATE REGULATION, NO BASIS IS PROVIDED BY THIS EXCEPTION FOR
ACCEPTANCE OF THE AGENCY'S PETITION UNDER SECTION 2411.32 OF THE
COUNCIL'S RULES.
IN ITS THIRD EXCEPTION, THE AGENCY CONTENDS THAT THE ARBITRATOR'S
ASSESSMENT OF ARBITRATION COSTS REQUIRES PAYMENTS OUTSIDE THE AUTHORITY
OF THE ACTIVITY TO MAKE AND IS CONTRARY TO LAW. THIS EXCEPTION STATES A
GROUND UPON WHICH THE COUNCIL WILL GRANT REVIEW OF AN ARBITRATOR'S
AWARD, BUT THE AGENCY AGAIN FAILS TO SPECIFY THE APPLICABLE LAW VIOLATED
BY THE ASSESSMENT OF THE ARBITRATION COSTS PURSUANT TO THE DIRECTION OF
THE COLLECTIVE BARGAINING AGREEMENT. THE AGENCY DOES MAINTAIN THAT THE
COST ASSESSMENT WAS BASED ON THE PURPORTED LACK OF MERIT OF THE
ACTIVITY'S POSITION WHICH IT BELIEVES HAS BEEN VINDICATED BY ITS
PETITION FOR REVIEW, HENCE THIS PORTION OF THE ARBITRATOR'S AWARD MUST
BE REVERSED.
IN NATIONAL COUNCIL OF OEO LOCALS, AFGE, AFL-CIO AND OFFICE OF
ECONOMIC OPPORTUNITY (HARKLESS, ARBITRATOR), FLRC NO. 73A-67 (DECEMBER
6, 1974), REPORT NO. 61, THE ARBITRATOR SUSTAINED THE UNION GRIEVANCE
AND PURSUANT TO THE COLLECTIVE BARGAINING AGREEMENT ASSESSED ALL COSTS
TO THE AGENCY AS THE LOSING PARTY. BEFORE THE COUNCIL, THE AGENCY
SUCCESSFULLY EXCEPTED TO PART OF THE ARBITRATOR'S AWARD, YET THE COST
ASSESSMENT WAS LEFT UNDISTURBED. THE COUNCIL CONCLUDED IN THIS REGARD
THAT:
(N)O INDEPENDENT GROUNDS ARE ESTABLISHED BY THE AGENCY OR OTHERWISE
APPARENT WHICH WOULD
WARRANT THE COUNCIL'S DISTURBING IN ANY WAY THE ARBITRATOR'S
ASSESSMENT OF COSTS . . .
THE GROUNDS NOW ASSERTED BY THE AGENCY WERE IMPLICITLY REJECTED IN
NATIONAL COUNCIL OF OEO LOCALS AS UNAPPARENT AND UNSUBSTANTIATED AND WE
NOW EXPLICITLY REJECT THEM HERE AS UNSUPPORTED. THEREFORE, THE AGENCY'S
PETITION DOES NOT PRESENT FACTS AND CIRCUMSTANCES NECESSARY TO SUPPORT
THIS EXCEPTION THAT THE ARBITRATOR'S ASSESSMENT OF ARBITRATION COSTS IS
BEYOND THE PAYMENT AUTHORITY OF THE AGENCY AND IS CONTRARY TO LAW.
ACCORDINGLY, THE AGENCY'S PETITION IS DENIED BECAUSE IT FAILS TO MEET
THE REQUIREMENTS FOR REVIEW, SET FORTH IN SECTION 2411.32 OF THE
COUNCIL'S RULES OF PROCEDURE. LIKEWISE, THE AGENCY'S REQUEST FOR A STAY
IS DENIED UNDER SECTION 2411.47(D) OF THE COUNCIL'S RULES.
BY THE COUNCIL.
CC: C. M. WEBBER
AFGE
/1/ ACCORDING TO THE AWARD, ARTICLE XI, SECTION 2 OF THE COLLECTIVE
BARGAINING AGREEMENT PROVIDES IN PERTINENT PART:
PRIOR TO TERMINATING A PROBATIONARY EMPLOYEE, MANAGEMENT WILL ENSURE
THAT EVERY REASONABLE
EFFORT HAS BEEN MADE ADEQUATELY TO COUNSEL AND/OR TRAIN THE EMPLOYEE
AND TO DEVISE A PLAN FOR
REMEDYING ANY PERFORMANCE DEFICIENCIES, IN ACCORD WITH GSA
ADMINISTRATIVE MANUAL, DOA (SIC)
5410.1, CHAP. 3-28, EXCEPT THAT THE APPRAISAL BY CHAP. 3-28(A) SHALL
BE MADE NOT LATER THAN
THE END OF THE EIGHTH MONTH OF SUCH PERIOD. THE EMPLOYEE SHALL BE
GIVEN THE OPPORTUNITY TO
READ AND INITIAL THE GSA FORM 496, PROBATIONARY OR TRIAL PERIOD
APPRAISAL REPORT.
/2/ THE PETITION FOR REVIEW ALSO INCLUDED A REQUEST PURSUANT TO
SECTION 2410.4(A) OF THE COUNCIL'S RULES OF PROCEDURE FOR A STATEMENT ON
MAJOR POLICY ISSUES ASSERTEDLY PRESENTED BY THE ARBITRATION AWARD. THE
COUNCIL IS OF THE OPINION THAT THIS REQUEST IS WITHOUT MERIT. ALL
ALLEGED MAJOR POLICY ISSUES ARE SIMULTANEOUSLY ASSERTED AS GROUNDS, OR
IN SUPPORT OF GROUNDS, FOR REVIEW OF THE ARBITRATION AWARD. THE COUNCIL
HAS CAREFULLY CONSIDERED THE REQUEST PURSUANT TO THE PROVISIONS OF
SECTION 2410.3 OF ITS RULES AND, NOTING PARTICULARLY THAT ALL ALLEGED
MAJOR POLICY ISSUES ARE BEFORE THE COUNCIL FOR RESOLUTION PURSUANT TO
ITS AUTHORITY TO REVIEW ARBITRATION AWARDS, CONCLUDES THAT THE ISSUANCE
OF AN INTERPRETATION OF THE ORDER AND STATEMENT ON MAJOR POLICY ISSUE
WOULD NOT BE APPROPRIATE. MOREOVER, THE ALLEGATION OR EXISTENCE OF A
MAJOR POLICY ISSUE IS NOT A GROUND FOR REVIEW OF AN ARBITRATION AWARD
UNDER THE COUNCIL'S RULES.
/3/ 5 U.S.C. 5596 (1970) WHICH PERTINENTLY PROVIDES:
(B) AN EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF AN ADMINISTRATIVE
DETERMINATION OR A
TIMELY APPEAL, IS FOUND BY APPROPRIATE AUTHORITY UNDER APPLICABLE LAW
OR REGULATION TO HAVE
UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION THAT HAS
RESULTED IN THE WITHDRAWAL
OR REDUCTION OF ALL OR A PART OF THE PAY, ALLOWANCES, OR
DIFFERENTIALS OF THE EMPLOYEE--
(1) IS ENTITLED, ON CORRECTION OF THE PERSONNEL ACTION, TO RECEIVE
FOR THE PERIOD FOR WHICH
THE PERSONNEL ACTION WAS IN EFFECT AN AMOUNT EQUAL TO ALL OR ANY PART
OF THE PAY, ALLOWANCES,
OR DIFFERENTIALS, AS APPLICABLE, THAT THE EMPLOYEE NORMALLY WOULD
HAVE EARNED DURING THAT
PERIOD IF THE PERSONNEL ACTION HAD NOT OCCURRED, LESS ANY AMOUNTS
EARNED BY HIM THROUGH OTHER
EMPLOYMENT DURING THAT PERIOD . . .
/4/ 5 C.F.R. CHAPTER I, PART 550, SUBPART H. THE CRITERIA FOR AN
UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION ARE SET FORTH IN 5 C.F.R.
550.803(D)-(E) (1974) WHICH PROVIDE:
(D) TO BE UNJUSTIFIED OR UNWARRANTED, A PERSONNEL ACTION MUST BE
DETERMINED TO BE IMPROPER
OR ERRONEOUS ON THE BASIS OF EITHER SUBSTANTIVE OR PROCEDURAL DEFECTS
AFTER CONSIDERATION OF
THE EQUITABLE, LEGAL, AND PROCEDURAL ELEMENTS INVOLVED IN THE
PERSONNEL ACTION.
(E) A PERSONNEL ACTION REFERRED TO IN SECTION 5596 OF TITLE 5, UNITED
STATES CODE, AND THIS
SUBPART IS ANY ACTION BY AN AUTHORIZED OFFICIAL OF ANY AGENCY WHICH
RESULTS IN THE WITHDRAWAL
OR REDUCTION OF ALL OR ANY PART OF THE PAY, ALLOWANCES, OR
DIFFERENTIALS OF AN EMPLOYEE AND
INCLUDES, BUT IS NOT LIMITED TO, SEPARATIONS FOR ANY REASON
(INCLUDING RETIREMENT),
SUSPENSIONS, FURLOUGHS WITHOUT PAY, DEMOTIONS, REDUCTIONS IN PAY, AND
PERIODS OF ENFORCED PAID
LEAVE WHETHER OR NOT CONNECTED WITH AN ADVERSE ACTION COVERED BY PART
752 OF THIS CHAPTER.
3 FLRC 676; FLRC NO. 75A-72; OCTOBER 8, 1975.
MS. JANET COOPER
STAFF ATTORNEY, NATIONAL FEDERATION
OF FEDERAL EMPLOYEES
1737 H STREET, NW.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 75A-72
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, DETROIT AREA OFFICE,
DETROIT, MICHIGAN, ASSISTANT SECRETARY CASE NO. 52-5817 (CA). THE
ASSISTANT SECRETARY DENIED THE REQUEST OF THE NATIONAL FEDERATION OF
FEDERAL EMPLOYEES (NFFE) FOR REVIEW OF THE ACTING ASSISTANT REGIONAL
DIRECTOR'S DISMISSAL OF NFFE'S UNFAIR LABOR PRACTICE COMPLAINT, WHICH
ALLEGED THAT THE ACTIVITY VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER
BY FAILING TO PROPERLY CONSULT, CONFER OR NEGOTIATE WITH THE UNION OVER
THE REVOCATION OF PARKING PERMITS ISSUED TO CERTAIN ACTIVITY EMPLOYEES.
THE UNION APPEALED TO THE COUNCIL, CONTENDING THAT THE ASSISTANT
SECRETARY'S DECISION PRESENTS MAJOR POLICY ISSUES.
COUNCIL ACTION (OCTOBER 8, 1975). THE COUNCIL HELD THAT THE UNION'S
PETITION FOR REVIEW DOES NOT MEET THE REQUIREMENTS OF SECTION 2411.12 OF
THE COUNCIL'S RULES; THAT IS, THE DECISION OF THE ASSISTANT SECRETARY
DOES NOT PRESENT A MAJOR POLICY ISSUE, AND THE UNION DOES NOT ALLEGE,
NOR DOES IT APPEAR, THAT HIS DECISION WAS ARBITRARY AND CAPRICIOUS.
ACCORDINGLY, THE COUNCIL DENIED REVIEW OF THE UNION'S PETITION.
DEAR MS. COOPER:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
IN THIS CASE LOCAL 1804, NATIONAL FEDERATION OF FEDERAL EMPLOYEES
(NFFE), FILED A COMPLAINT AGAINST THE DETROIT AREA OFFICE OF THE
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (THE ACTIVITY). THE
COMPLAINT ALLEGED THAT THE ACTIVITY VIOLATED SECTION 19(A)(1) AND (6) OF
THE ORDER BY FAILING TO PROPERLY CONSULT, CONFER, OR NEGOTIATE WITH NFFE
OVER THE REVOCATION OF PARKING PERMITS ISSUED TO CERTAIN ACTIVITY
EMPLOYEES.
THE ASSISTANT SECRETARY DENIED THE REQUEST FOR REVIEW OF THE ACTING
ASSISTANT REGIONAL DIRECTOR'S DISMISSAL OF THE COMPLAINT. THE ASSISTANT
SECRETARY FOUND THAT AS THE PARKING PERMITS WERE ISSUED AND SUBSEQUENTLY
REVOKED BY THE GENERAL SERVICES ADMINISTRATION AND AS THE ACTIVITY HAD
NO CONTROL OVER THE PARKING PERMITS OR INVOLVEMENT IN THE DECISION TO
REVOKE THEM, IT HAD NO OBLIGATION TO MEET AND CONFER WITH NFFE IN THIS
REGARD. THE ASSISTANT SECRETARY NOTED THAT "NFFE DID NOT REQUEST TO
MEET AND CONFER CONCERNING THE REVOCATION" AND THAT THE ACTIVITY
"OFFERED TO MEET AND CONFER WITH NFFE WITH REGARD TO THE IMPACT OF THE
REVOCATION OF THE PARKING PERMITS ON ADVERSELY AFFECTED EMPLOYEES."
IN YOUR PETITION FOR REVIEW YOU CONTEND THAT THE ASSISTANT
SECRETARY'S DECISION PRESENTS SEVERAL MAJOR POLICY ISSUES:
1. WHETHER AN OFFER TO MEET AND CONFER MADE AFTER THE FILING OF A
PRE-COMPLAINT CHARGE
LETTER FOR FAILING TO DO SO CAN BE THE BASIS FOR DISMISSING A
COMPLAINT ON THE SAME SUBJECT?
2. WHETHER DETERMINATIONS AS TO WHAT THE BARGAINING DUTIES IN A
PARTICULAR SITUATION ARE
CAN BE MADE BY AN ASSISTANT REGIONAL DIRECTOR OR MUST BE RESERVED FOR
AN ADMINISTRATIVE LAW
JUDGE TO DECIDE?
3. WHETHER THE DUTY OF A UNION TO REQUEST BARGAINING ON THE IMPACT
OF A CHANGE IN WORKING
CONDITIONS EXISTS IF THE UNION HAS NO PROPER NOTICE THAT THE CHANGE
IS ABOUT TO TAKE PLACE?
4. WHETHER (THE ACTIVITY) MUST NOTIFY THE UNION OF CANCELLATION OF
PARKING PERMITS IF
PERMITS WERE ISSUED DIRECTLY TO UNIT EMPLOYEES RATHER THAN TO THE
UNION?
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW DOES NOT MEET THE
REQUIREMENTS OF SECTION 2411.12 OF THE COUNCIL'S RULES; THAT IS, THE
DECISION OF THE ASSISTANT SECRETARY DOES NOT PRESENT A MAJOR POLICY
ISSUE, AND YOU DO NOT ALLEGE, NOR DOES IT APPEAR, THAT HIS DECISION WAS
ARBITRARY AND CAPRICIOUS.
AS TO YOUR CONTENTION CONCERNING WHAT EVIDENCE THE ASSISTANT
SECRETARY MAY CONSIDER AS A BASIS FOR DISMISSING A COMPLAINT, IN THE
COUNCIL'S VIEW THE ASSISTANT SECRETARY MAY CONSIDER EVIDENCE OF ALL
RELEVANT EVENTS WHETHER THEY OCCURRED PRIOR TO THE FILING OF THE
PRECOMPLAINT CHARGE, AFTER THE CHARGE BUT PRIOR TO THE COMPLAINT, OR
SUBSEQUENT TO THE COMPLAINT. SEE, IN THIS REGARD, THE COUNCIL'S
DECISION IN VANDENBERG AIR FORCE BASE, 4392D AEROSPACE SUPPORT GROUP,
VANDENBERG AIR FORCE BASE, CALIFORNIA, A/SLMR NO. 435, FLRC NO. 74A-77
(AUGUST 8, 1975), REPORT NO. 79. AS TO YOUR SECOND ALLEGED MAJOR POLICY
ISSUE, CONCERNING THE NEED FOR A FORMAL HEARING BEFORE AN ADMINISTRATIVE
LAW JUDGE, NOTHING IN YOUR APPEAL INDICATES THAT SUBSTANTIAL FACTUAL
ISSUES EXIST WHICH WOULD REQUIRE A HEARING. WITH RESPECT TO YOUR THIRD
AND FOURTH ALLEGED MAJOR POLICY ISSUES, RATHER THAN CONSTITUTING POLICY
QUESTIONS, THEY APPEAR TO BE ESSENTIALLY A DISAGREEMENT WITH THE
ASSISTANT SECRETARY OVER WHETHER THE ALLEGED FACTS WARRANT THE ISSUANCE
OF A NOTICE OF HEARING.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT PRESENT A MAJOR
POLICY ISSUE, AND SINCE YOU DO NOT ALLEGE, NOR DOES IT APPEAR, THAT THE
ASSISTANT SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS, YOUR APPEAL
FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED IN SECTION 2411.12
OF THE COUNCIL'S RULES OF PROCEDURE. ACCORDINGLY, YOUR PETITION FOR
REVIEW IS HEREBY DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
E. BINFORD
HUD
3 FLRC 668; FLRC NO. 75A-28; OCTOBER 8, 1975.
AFGE LOCAL 2151
AND
GENERAL SERVICES ADMINISTRATION,
REGION 3
(SYNOPSIS) FLRC NO. 75A-28
AFGE LOCAL 2151 AND GENERAL SERVICES ADMINISTRATION, REGION 3. THE:
DISPUTE INVOLVED THE NEGOTIABILITY OF THREE UNION PROPOSALS CONCERNING
(1) THE PROVISION OF OFFICE SPACE AND FURNISHINGS TO THE UNION IN THE
AGENCY'S REGIONAL HEADQUARTERS; (2) UNIFORM ALLOWANCES; AND (3)
ISSUANCE OF RAINWEAR-- EACH OF WHICH THE AGENCY DETERMINED TO BE
NONNEGOTIABLE UNDER INTERNAL AGENCY REGULATIONS. IN ITS APPEAL TO THE
COUNCIL, THE UNION CONTENDED AS TO (1) THAT THE AGENCY REGULATIONS WERE
CONTRARY TO THE ORDER AND COUNCIL DECISIONS. AS TO (2) AND (3), THE
UNION PRESENTED FOR THE FIRST TIME REVISED PROPOSALS AND MOVED THAT THE
COUNCIL REMAND THE REVISED PROPOSALS TO THE AGENCY FOR NEGOTIABILITY
DETERMINATIONS.
COUNCIL ACTION (OCTOBER 8, 1975). AS TO (1), THE COUNCIL FOUND THAT
THE AGENCY'S REGULATIONS WERE NOT INCONSISTENT WITH THE ORDER AND THE
COUNCIL'S DECISIONS, AND SUSTAINED THE AGENCY'S DETERMINATION OF
NONNEGOTIABILITY. WITH RESPECT TO (2) AND (3), THE COUNCIL CONCLUDED
THAT THE CONDITIONS FOR COUNCIL REVIEW PRESCRIBED IN SECTION 11(C) OF
THE ORDER AND SECTION 2411.22 OF THE COUNCIL'S RULES OF PROCEDURE HAD
NOT BEEN MET AS TO THESE PROPOSALS. ACCORDINGLY, WITHOUT PASSING ON
THEIR NEGOTIABILITY, THE COUNCIL HELD THAT THE UNION'S APPEAL WITH
RESPECT TO THE REVISED PROPOSALS WAS PREMATURELY FILED AND MUST
THEREFORE BE DENIED. IN THIS REGARD, THE COUNCIL FURTHER HELD THAT THE
UNION'S MOTION REQUESTING THE: COUNCIL TO "REMAND" SUCH REVISED
PROPOSALS TO THE AGENCY HEAD IS WITHOUT BASIS IN THE ORDER OR THE
COUNCIL'S RULES AND MUST ALSO BE DENIED.
AFGE LOCAL 2151 IS THE EXCLUSIVE BARGAINING AGENT FOR FOUR UNITS
WITHIN GENERAL SERVICES ADMINISTRATION, REGION 3. DURING NEGOTIATIONS
BETWEEN THE PARTIES, DISPUTES AROSE AS TO THE NEGOTIABILITY OF THREE
UNION PROPOSALS CONCERNING THE PROVISION OF OFFICE SPACE AND FURNISHINGS
TO THE UNION IN THE AGENCY'S REGIONAL HEADQUARTERS; UNIFORM ALLOWANCES;
AND ISSUANCE OF RAINWEAR.
UPON REFERRAL UNDER THE PROVISIONS OF SECTION 11(C)(2) OF THE ORDER,
THE GENERAL SERVICES ADMINISTRATION DETERMINED THAT AGENCY-WIDE
REGULATIONS BAR NEGOTIATIONS ON THE THREE PROPOSALS UNDER SECTION 11(A)
OF THE ORDER.
THE UNION APPEALED TO THE COUNCIL UNDER SECTION 11(C)(4) OF THE ORDER
FROM THE AGENCY'S DETERMINATION THAT THE OFFICE SPACE AND EQUIPMENT
PROPOSAL IS NONNEGOTIABLE. HOWEVER, WITH RESPECT TO THE UNIFORM
ALLOWANCES AND THE ISSUANCE OF RAINWEAR PROPOSALS, THE UNION'S PETITION
PRESENTS REVISED PROPOSALS TO REPLACE THOSE WHICH HAD BEEN DETERMINED TO
BE NONNEGOTIABLE BY THE AGENCY. THE UNION, IN ITS PETITION, "MOVES"
THAT THE COUNCIL "REMAND" THESE TWO REVISED PROPOSALS TO THE AGENCY FOR
NEW NEGOTIABILITY DETERMINATIONS.
1. AS TO THE UNION'S MOTION FOR "REMAND" OF THE TWO REVISED
PROPOSALS TO THE AGENCY FOR NEGOTIABILITY DETERMINATIONS, THE COUNCIL IS
OF THE OPINION THAT SUCH REQUEST MUST BE DENIED. WHILE THE UNION
CONTENDS THAT ITS REQUEST IS BASED UPON SECTION 2411.23 OF THE COUNCIL'S
RULES OF PROCEDURE, WE THINK RELIANCE ON THAT SECTION IS MISPLACED.
SECTION 2411.23, IN EFFECT WHEN THIS APPEAL WAS FILED PROVIDED AS
FOLLOWS (SUBSEQUENT CHANGES IN THE COUNCIL'S RULES ARE NOT MATERIAL TO
THE INSTANT CASE):
(A) A PETITION FOR REVIEW OF A NEGOTIABILITY ISSUE MAY BE FILED BY A
LABOR ORGANIZATION
WHICH IS A PARTY TO THE NEGOTIATIONS.
(B) THE TIME LIMIT FOR FILING IS 20 DAYS FROM THE DATE THE AGENCY
HEAD'S DETERMINATION WAS
SERVED ON THE LABOR ORGANIZATION. HOWEVER, REVIEW OF A NEGOTIABILITY
ISSUE MAY BE REQUESTED
BY A LABOR ORGANIZATION UNDER THIS SUBPART WITHOUT A PRIOR
DETERMINATION BY THE AGENCY HEAD,
IF THE AGENCY HEAD HAS NOT MADE A DECISION--
(1) WITHIN 45 DAYS AFTER A PARTY TO THE NEGOTIATIONS INITIATES
REFERRAL OF THE ISSUE FOR
DETERMINATION, IN WRITING, THROUGH PRESCRIBED AGENCY CHANNELS; OR
(2) WITHIN 15 DAYS AFTER RECEIPT BY THE AGENCY HEAD OF A WRITTEN
REQUEST FOR SUCH
DETERMINATION FOLLOWING REFERRAL THROUGH PRESCRIBED AGENCY CHANNELS,
OR FOLLOWING DIRECT
SUBMISSION IF NO AGENCY CHANNELS ARE PRESCRIBED.
(C) A COPY OF THE PETITION SHALL BE SERVED SIMULTANEOUSLY ON THE
OTHER PARTY.
PLAINLY, THE COUNCIL'S RULES DO NOT PROVIDE IN ANY MANNER FOR THE
COUNCIL TO "REMAND" REVISED PROPOSALS WHICH HAVE NEVER BEEN REFERRED BY
A PARTY TO THE AGENCY FOR NEGOTIABILITY DETERMINATIONS, AS THE UNION
REQUESTS HERE. THE CITED SECTION ONLY INDICATES WHO MAY FILE A
NEGOTIABILITY APPEAL, THE TIME LIMITS FOR SUCH APPEAL, AND THE
REQUIREMENT OF SERVICE. MOREOVER, IT IMPLICITLY REQUIRES, AS A
CONDITION PRECEDENT TO APPEAL TO THE COUNCIL, THAT A PARTY TO THE
NEGOTIATIONS REFER THE ISSUE TO THE AGENCY HEAD FOR A DETERMINATION.
FURTHERMORE, SECTION 4(C)(2) OF THE ORDER EMPOWERS THE COUNCIL,
SUBJECT TO ITS REGULATIONS, TO CONSIDER "APPEALS ON NEGOTIABILITY ISSUES
AS PROVIDED IN SECTION 11(C)" OF THE ORDER. SECTION 11(C) PROVIDES AS
FOLLOWS:
(C) IF, IN CONNECTION WITH NEGOTIATIONS, AN ISSUE DEVELOPS AS TO
WHETHER A PROPOSAL IS
CONTRARY TO LAW, REGULATION, CONTROLLING AGREEMENT, OR THIS ORDER AND
THEREFORE NOT
NEGOTIABLE, IT SHALL BE RESOLVED AS FOLLOWS:
(2) AN ISSUE OTHER THAN AS DESCRIBED IN SUBPARAGRAPH (1) OF THIS
PARAGRAPH WHICH ARISES AT
A LOCAL LEVEL MAY BE REFERRED BY EITHER PARTY TO THE HEAD OF THE
AGENCY FOR DETERMINATION;
(4) A LABOR ORGANIZATION MAY APPEAL TO THE COUNCIL FOR A DECISION
WHEN--
(I) IT DISAGREES WITH AN AGENCY HEAD'S DETERMINATION THAT A PROPOSAL
WOULD VIOLATE
APPLICABLE LAW, REGULATION OF APPROPRIATE AUTHORITY OUTSIDE THE
AGENCY, OR THIS ORDER, OR
(II) IT BELIEVES THAT AN AGENCY'S REGULATIONS, AS INTERPRETED BY THE
AGENCY HEAD, VIOLATE
APPLICABLE LAW, REGULATION OF APPROPRIATE AUTHORITY OUTSIDE THE
AGENCY, OR THIS ORDER.
THUS, BY ITS LANGUAGE, SECTION 11(C) OF THE ORDER, INCORPORATED IN
SECTION 2411.22 OF THE COUNCIL'S RULES OF PROCEDURE, PROVIDES EXPRESSLY
FOR THE COUNCIL TO RESOLVE ONLY ISSUES CONCERNING THE PROPRIETY OF AN
AGENCY HEAD'S DETERMINATION THAT A PROPOSAL, DEVELOPED IN CONNECTION
WITH NEGOTIATIONS, IS NOT NEGOTIABLE BECAUSE IT VIOLATES APPLICABLE LAW,
REGULATION, OR THE ORDER. IT IS LIKEWISE CLEAR THAT SECTION 11(C)(4)(I)
AND (II) PROVIDE THE ONLY BASES UPON WHICH A UNION MAY INVOKE THE
COUNCIL'S JURISDICTION IN A NEGOTIABILITY DISPUTE (OTHER THAN THOSE
INVOLVING A DETERMINATION OF NEGOTIABILITY BY THE ASSISTANT SECRETARY
UNDER SECTIONS 6(A)(4) AND 11(D) OF THE ORDER), AND THAT SUCH BASES ARE
PREDICATED UPON THE PROPOSAL'S FIRST HAVING BEEN REFERRED TO THE AGENCY
HEAD FOR A DETERMINATION.
SIMILARLY, AS REGARDS THE "LEGISLATIVE HISTORY" OF THE PROCEDURES
GOVERNING RESOLUTION OF NEGOTIABILITY DISPUTES, THE 1969 STUDY COMMITTEE
REPORT AND RECOMMENDATIONS, WHICH LED TO THE ISSUANCE OF E.O. 11491, /1/
STATES AN INTENT THAT: /2/
WHERE DISPUTES DEVELOP IN CONNECTION WITH NEGOTIATIONS AT THE LOCAL
LEVEL AS TO WHETHER A
LABOR ORGANIZATION PROPOSAL IS CONTRARY TO LAW OR AGENCY REGULATIONS
OR REGULATIONS OF OTHER
APPROPRIATE AUTHORITIES AND THEREFORE NOT NEGOTIABLE, THE LABOR
ORGANIZATION SHOULD HAVE THE
RIGHT TO REFER SUCH DISPUTES IMMEDIATELY TO AGENCY HEADQUARTERS FOR
AN EXPEDITIOUS
DETERMINATION. ISSUES AS TO WHETHER A PROPOSAL ADVANCED DURING
NEGOTIATIONS, EITHER AT THE
LOCAL OR NATIONAL LEVEL, IS NOT NEGOTIABLE, BECAUSE THE AGENCY HEAD
HAS DETERMINED THAT IT
WOULD VIOLATE ANY LAW, REGULATION OR RULE ESTABLISHED BY APPROPRIATE
AUTHORITY OUTSIDE THE
AGENCY MAY BE REFERRED TO THE FEDERAL LABOR RELATIONS COUNCIL FOR
DECISION. SIMILARLY, ISSUES
AS TO WHETHER AN AGENCY'S REGULATIONS ARE CONTRARY TO THE NEW ORDER,
TO INTERPRETATIONS OF THE
ORDER ISSUED BY THE COUNCIL, OR TO APPLICABLE LAW OR REGULATIONS OF
APPROPRIATE AUTHORITIES,
SHOULD BE REFERRED TO THE COUNCIL FOR DECISION.
. . . THE PROCEDURES RECOMMENDED WOULD GIVE EXCLUSIVELY RECOGNIZED
ORGANIZATIONS A WAY OF
RESOLVING, DURING NEGOTIATIONS, QUESTIONS AS TO WHETHER A MATTER
PROPOSED FOR NEGOTIATION IS
IN CONFLICT WITH LAW, APPLICABLE REGULATIONS OR A CONTROLLING
AGREEMENT.
IN THE INSTANT CASE, THE UNION'S PETITION TO THE COUNCIL CLEARLY
REVEALS THAT THE REVISED PROPOSALS, WHICH ARE THE SUBJECT OF THIS APPEAL
AND WHICH THE UNION REQUESTS THE COUNCIL TO REMAND TO THE AGENCY HEAD,
ARE NOT THE PRODUCT OF, AND WERE NOT CONSIDERED IN, LOCAL NEGOTIATIONS
AS REQUIRED BY THE ORDER. IN FACT, THE UNION EXPRESSLY STATES THAT IT
HAS NOT PRESENTED THE PROPOSALS TO REGION 3 MANAGEMENT BECAUSE OF A
DESIRE TO AVOID "MEANINGLESS NEGOTIATIONS." SIMILARLY, THE UNION HAS
CHOSEN NOT TO SUBMIT THE REVISIONS TO THE AGENCY HEAD FOR
DETERMINATIONS.
UNDER THESE CIRCUMSTANCES, WE MUST CONCLUDE THAT THE CONDITIONS FOR
COUNCIL REVIEW PRESCRIBED IN SECTION 11(C) OF THE ORDER AND SECTION
2411.22 OF THE COUNCIL'S RULES OF PROCEDURE HAVE NOT BEEN MET.
ACCORDINGLY, WITHOUT PASSING ON THE NEGOTIABILITY OF THE REVISED
PROPOSALS, THE COUNCIL FINDS THAT: THE UNION'S APPEAL WITH RESPECT TO
ITS REVISED PROPOSALS CONCERNING UNIFORM ALLOWANCES AND ISSUANCE OF
RAINWEAR IS PREMATURELY FILED AND MUST THEREFORE BE DENIED; AND, THE
UNION'S MOTION THAT THE COUNCIL "REMAND" SUCH REVISED PROPOSALS TO THE
AGENCY HEAD IS WITHOUT BASIS IN THE ORDER OR THE COUNCIL'S RULES AND,
LIKEWISE, MUST BE DENIED.
2. THE UNION'S PROPOSAL CONCERNING OFFICE SPACE AND EQUIPMENT READS
AS FOLLOWS:
ARTICLE XVI-- FOR THE CONVENIENCE AND EFFICIENT SERVING OF EMPLOYEES
IN THE UNITS, THE
EMPLOYER AGREES TO FURNISH OFFICE SPACE AND OFFICE FURNITURE FOR USE
OF THE UNION IN THE
REGIONAL OFFICE BUILDING.
AS PREVIOUSLY INDICATED, THE AGENCY DETERMINED THAT THE PROPOSAL IS
NONNEGOTIABLE UNDER SECTION 11(A) OF THE ORDER BECAUSE OF ITS CONFLICT
WITH GENERAL SERVICES ADMINISTRATION INTERNAL REGULATIONS. THE
REGULATION RELIED UPON BY THE AGENCY IS OAD 6250.1A, "LABOR-MANAGEMENT
RELATIONS IN GSA," APRIL 21, 1972, WHICH PROVIDES:
ON THE PREMISES. SUBJECT TO SAFETY AND SECURITY REGULATIONS AND
WHERE APPROPRIATE
FACILITIES ARE AVAILABLE ON GSA PREMISES, LABOR ORGANIZATIONS WILL BE
GRANTED PERMISSION TO
USE SUCH FACILITIES FOR BUSINESS MEETINGS PROVIDED THAT MEETINGS DO
NOT INTERFERE WITH THE
REGULAR FUNCTIONING OF GSA ACTIVITIES. THE USE OF GSA PREMISES,
OFFICE SPACE, OR OTHER
FACILITIES WILL NOT BE ASSIGNED ON A CONTINUING BASIS. ORDINARILY,
MEETINGS HELD ON GSA
PREMISES MAY BE ATTENDED AND CONDUCTED BY NON-EMPLOYEES AS WELL AS
GSA EMPLOYEES; HOWEVER,
WHEN GSA OFFICIALS DETERMINE THAT SECURITY CONSIDERATIONS ARE
INVOLVED, PERMISSION TO ATTEND
AND CONDUCT MEETINGS ON GSA PREMISES MAY BE RESTRICTED TO GSA
EMPLOYEES.
THE UNION CONTENDS THAT THIS AGENCY REGULATION IS INCONSISTENT WITH
THE ORDER AND COUNCIL PRECEDENT. IN PARTICULAR, IT ASSERTS PRINCIPALLY
THAT THE REGULATION VIOLATES SECTIONS 19(A)(3) AND 23 OF THE ORDER; AND
IS INCONSISTENT WITH PRIOR COUNCIL DECISIONS.
THE MATTER OF UNION USE OF AGENCY FACILITIES IS SPECIFICALLY
MENTIONED ONLY IN SECTIONS 19(A)(3) AND 23 OF THE ORDER. SECTION 23,
WHICH REQUIRES THAT AGENCIES PROMULGATE REGULATIONS AND POLICIES
IMPLEMENTING THE ORDER, EXPRESSLY INCLUDES, AMONG THE MATTERS TO BE
ADDRESSED IN SUCH ISSUANCES, " . . . POLICIES WITH RESPECT TO THE USE OF
AGENCY FACILITIES BY LABOR ORGANIZATIONS . . . " WHILE SECTION 23
MANDATES THE ISSUANCE OF REGULATIONS, IT DOES NOT GRANT ANY RIGHTS OR
SET FORTH ANY LIMITATIONS ON THE SUBSTANCE OF THE ISSUANCES REQUIRED BY
IT, EXCEPT THAT SUCH REGULATIONS AND POLICIES MUST BE CLEAR AND MUST BE
CONSISTENT WITH THE ORDER. HENCE, WHILE SECTION 23 DOES NOT PRECLUDE AN
AGENCY FROM NEGOTIATING WITH RESPECT TO THE USE OF AGENCY FACILITIES BY
LABOR ORGANIZATIONS, IT SIMILARLY DOES NOT BAR THE ISSUANCE OF AN AGENCY
REGULATION WHICH MAY RESTRICT THE SCOPE OF NEGOTIATION UNDER SECTION
11(A) OF THE ORDER.
SECTION 19(A)(3), WHICH CONCERNS MANAGEMENT UNFAIR LABOR PRACTICES,
PROVIDES AS FOLLOWS:
SEC. 19. UNFAIR LABOR PRACTICES. (A) AGENCY MANAGEMENT SHALL NOT--
(3) SPONSOR, CONTROL, OR OTHERWISE ASSIST A LABOR ORGANIZATION,
EXCEPT THAT AN AGENCY MAY
FURNISH CUSTOMARY AND ROUTINE SERVICES AND FACILITIES UNDER SECTION
23 OF THIS ORDER WHEN
CONSISTENT WITH THE BEST INTERESTS OF THE AGENCY, ITS EMPLOYEES, AND
THE ORGANIZATION, AND
WHEN THE SERVICES AND FACILITIES ARE FURNISHED, IF REQUESTED, ON AN
IMPARTIAL BASIS TO
ORGANIZATIONS HAVING EQUIVALENT STATUS . . .
THE UNION ARGUES THAT "THE SPECIFIC EXCEPTION IN SECTION 19(A)(3)
SHOWS A CLEAR INTENT TO PERMIT AGENCIES TO AGREE TO FURNISH OFFICE SPACE
WHERE CIRCUMSTANCES WARRANT IT." THUS, THE UNION CONCEDES, CORRECTLY IN
OUR VIEW, THAT THIS SECTION OF THE ORDER IS MERELY PERMISSIVE. THAT IS,
IT GRANTS NO RIGHTS TO THE UNION AND IMPOSES NO OBLIGATION UPON THE
AGENCY WITH RESPECT TO WHETHER OR NOT AGENCY SERVICES AND FACILITIES
WILL BE FURNISHED TO THE EXCLUSIVE REPRESENTATIVE. THE SECTION MERELY
STATES THAT, AS AN EXCEPTION TO THE GENERAL REQUIREMENT THAT AN AGENCY
REFRAIN FROM ASSISTING A LABOR ORGANIZATION, MANAGEMENT "MAY FURNISH"
SUCH SERVICES AND FACILITIES UPON REQUEST, WITHOUT COMMITTING AN UNFAIR
LABOR PRACTICE, IF THEY ARE FURNISHED IMPARTIALLY TO ORGANIZATIONS
HAVING EQUIVALENT STATUS.
THUS, IN OUR VIEW, THE UNION'S CONTENTION THAT THE AGENCY REGULATION
IN QUESTION VIOLATES SECTIONS 19(A)(3) AND 23 OF THE ORDER IS WITHOUT
MERIT. NEITHER SECTION REQUIRES THE AGENCY TO FURNISH FACILITIES AND/OR
SERVICES FOR UNION USE; NOR DOES EITHER SECTION MANDATE THAT WHETHER
THEY WILL BE FURNISHED IS A QUESTION TO BE RESOLVED BY THE PARTIES AT
THE BARGAINING TABLE. ACCORDINGLY, A REGULATION WHICH PLACES A
RESTRICTION ON THE EXTENT TO WHICH PARTIES MAY NEGOTIATE OVER THE
FURNISHING OF FACILITIES DOES NOT VIOLATE THESE PROVISIONS OF THE ORDER.
AS PREVIOUSLY STATED, THE UNION ALSO CONTENDS THAT THE REGULATION IN
QUESTION MAY NOT PROPERLY BAR NEGOTIATIONS UNDER THE PRINCIPLES
ENUNCIATED IN OUR FT. MONMOUTH /3/ AND ELMENDORF /4/ DECISIONS. /5/
AGAIN, WE MUST DISAGREE. IN BOTH OF THOSE CASES THE COUNCIL SET ASIDE
AGENCY DETERMINATIONS THAT AGENCY REGULATIONS BARRED NEGOTIATIONS ON
PROPOSALS FORMULATED BY THE UNIONS INVOLVED. THE COUNCIL BASED ITS
RULING IN FT. MONMOUTH ON A FINDING THAT, UNDER SECTION 21 OF THE ORDER
"THE SUBSTANCE AND THE FORM OF DUES WITHHOLDING ARRANGEMENTS WERE TO BE
LEFT TO DETERMINATION BY THE PARTIES AT THE BARGAINING TABLE." IN
ELMENDORF THE DECISION WAS BASED ON A FINDING THAT, UNDER SECTION 13 OF
THE ORDER, "THE NATURE AND SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE
WERE TO BE NEGOTIATED BY THE PARTIES SUBJECT ONLY TO THE EXPLICIT
LIMITATIONS PRESCRIBED BY THE ORDER ITSELF." IN BOTH CASES THE
REGULATION RELIED UPON BY THE AGENCY TO RESTRICT NEGOTIATIONS WAS
DETERMINED TO BE INCONSISTENT WITH THE ORDER, THEREBY ELIMINATING IT AS
AN APPLICABLE REGULATION UNDER SECTION 11(A). IN THE INSTANT CASE,
HOWEVER, THE MATTER WHICH IS THE SUBJECT OF THE UNION'S PROPOSAL AND THE
AGENCY'S REGULATION IS, AS WE HAVE INDICATED, ONE CONCERNING WHICH THE
ORDER DOES NOT BAR THE ISSUANCE OF AGENCY REGULATIONS WHICH MAY RESTRICT
THE SCOPE OF NEGOTIATION UNDER SECTION 11(A). ACCORDINGLY, OUR HOLDINGS
IN THE TWO EARLIER CASES ARE INAPPLICABLE AND LEND NO SUPPORT TO THIS
APPEAL.
BASED ON THE FOREGOING, WE FIND THAT THE AGENCY REGULATIONS IN
QUESTION ARE NOT INCONSISTENT WITH THE ORDER. ACCORDINGLY, WE MUST
SUSTAIN THE AGENCY HEAD'S DETERMINATION THAT ARTICLE XVI IS
NONNEGOTIABLE IN THE CIRCUMSTANCES OF THIS CASE.
FOR THE REASONS DISCUSSED ABOVE, AND PURSUANT TO SECTIONS 2411.22 AND
2411.28 OF THE COUNCIL'S RULES AND REGULATIONS, WE FIND THAT:
1. THE UNION'S APPEAL WITH RESPECT TO ITS REVISED PROPOSALS
CONCERNING UNIFORM ALLOWANCES
AND THE ISSUANCE OF RAINWEAR FAILS TO MEET THE CONDITIONS FOR REVIEW
PRESCRIBED IN SECTION
11(C) OF THE ORDER AND MUST BE DENIED; AND
2. THE AGENCY'S DETERMINATION AS TO THE NONNEGOTIABILITY OF THE
PROPOSAL REGARDING THE
FURNISHING OF OFFICE SPACE AND FURNITURE, ARTICLE XVI, WAS VALID AND
MUST BE SUSTAINED.
BY THE COUNCIL.
ISSUED: OCTOBER 8, 1975
/1/ SUBSEQUENT AMENDMENTS HAVE NOT MODIFIED PROVISIONS OF THE ORDER
IN ANY RESPECT MATERIAL TO THIS CASE.
/2/ LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1975), AT 71.
/3/ NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 476 AND JOINT
TACTICAL COMMUNICATIONS OFFICE, FT. MONMOUTH, NEW JERSEY, FLRC NO.
72A-42 (AUGUST 31, 1973), REPORT NO. 43.
/4/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1668 AND
ELMENDORF AIR FORCE BASE (WILDWOOD AIR FORCE STATION), ALASKA, FLRC NO.
72A-10 (MAY 12, 1973), REPORT NO. 38.
/5/ THE UNION ALSO ASSERTS THAT THE REGULATION (1) VIOLATES THE
PREAMBLE AND SECTIONS 1, 11(B), AND 19(A)(1) OF THE ORDER; AND (2) IS
"DISCRIMINATORY ON ITS FACE AND IN ITS APPLICATION." BUT, AS TO (1), THE
UNION ADVANCES NO PERSUASIVE REASONS TO SUPPORT ITS ASSERTIONS. HENCE,
WE FIND THESE UNSUPPORTED CLAIMS TO BE WITHOUT MERIT. AS TO (2), THIS
BARE ASSERTION DOES NOT STATE A GROUND FOR SETTING ASIDE AN AGENCY
DETERMINATION OF NONNEGOTIABILITY. RATHER, IT APPEARS TO CONJECTURE AN
UNFAIR LABOR PRACTICE BY AGENCY MANAGEMENT. THE PROPER VEHICLE FOR
RAISING SUCH AN ISSUE IS NOT A NEGOTIABILITY APPEAL TO THE COUNCIL BUT
AN UNFAIR LABOR PRACTICE PROCEEDING BEFORE THE ASSISTANT SECRETARY.
ACCORDINGLY, WE DO NOT PASS UPON THIS CLAIM IN THE INSTANT CASE.
3 FLRC 665; FLRC NO. 75A-6; OCTOBER 8, 1975.
MR. CLYDE M. WEBBER, NATIONAL PRESIDENT
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
1325 MASSACHUSETTS AVENUE, NW.
WASHINGTON, D.C. 20005
(SYNOPSIS) FLRC NO. 75A-6
AFGE LOCAL 3157 AND SUPERVISOR, NEW ORLEANS, LA., COMMODITY
INSPECTION AND GRAIN INSPECTION BRANCHES, GRAIN DIVISION, UNITED STATES
DEPARTMENT OF AGRICULTURE. THE AGENCY DETERMINED THAT CERTAIN UNION
PROPOSALS WERE NONNEGOTIABLE BECAUSE THEY VIOLATE THE ORDER. THE UNION
APPEALED TO THE COUNCIL AND SOUGHT TO INTRODUCE REVISED PROPOSALS "AS
THE PROPOSALS IN DISPUTE."
COUNCIL ACTION (OCTOBER 8, 1975). SINCE THE REVISED PROPOSALS SOUGHT
TO BE INTRODUCED BEFORE THE COUNCIL BY THE UNION HAD NOT BEEN ADVANCED
IN NEGOTIATIONS AND, MOREOVER, HAD NOT BEEN REFERRED TO THE AGENCY HEAD
FOR A NEGOTIABILITY DETERMINATION PURSUANT TO SECTION 11(C) OF THE
ORDER, THE COUNCIL RULED THAT THE CONDITIONS PRESCRIBED FOR REVIEW IN
SECTION 11(C)(4) OF THE ORDER AND SECTION 2411.22 OF THE COUNCIL'S RULES
OF PROCEDURE HAD NOT BEEN MET. ACCORDINGLY, THE COUNCIL DENIED REVIEW
OF THE UNION'S APPEAL.
DEAR MR. WEBBER:
REFERENCE IS MADE TO YOUR APPEAL TO THE COUNCIL FOR REVIEW OF A
NEGOTIABILITY DETERMINATION BY THE DEPARTMENT OF AGRICULTURE IN THE
ABOVE-ENTITLED CASE.
THE COUNCIL CAREFULLY CONSIDERED YOUR APPEAL, THE STATEMENT OF
POSITION FILED BY THE AGENCY, THE SUPPLEMENTAL SUBMISSIONS FILED BY EACH
PARTY AND THE COMMENTS THEREON FILED BY THE OTHER PARTY AND HAS DECIDED
THAT REVIEW OF YOUR APPEAL MUST BE DENIED FOR THE FOLLOWING REASONS.
SECTION 11(C) OF THE ORDER, WHICH IS INCORPORATED BY REFERENCE IN
SECTION 2411.22 OF THE COUNCIL'S RULES OF PROCEDURE, PROVIDES IN
RELEVANT PART:
(C) IF, IN CONNECTION WITH NEGOTIATIONS, AN ISSUE DEVELOPS AS TO
WHETHER A PROPOSAL IS
CONTRARY TO LAW, REGULATION, CONTROLLING AGREEMENT, OR THIS ORDER AND
THEREFORE NOT
NEGOTIABLE, IT SHALL BE RESOLVED AS FOLLOWS:
(2) AN ISSUE OTHER THAN AS DESCRIBED IN SUBPARAGRAPH (1) OF THIS
PARAGRAPH
WHICH ARISES AT A LOCAL LEVEL MAY BE REFERRED BY EITHER PARTY TO THE
HEAD OF
THE AGENCY FOR DETERMINATION;
(4) A LABOR ORGANIZATION MAY APPEAL TO THE COUNCIL FOR A DECISION
WHEN--
(I) IT DISAGREES WITH AN AGENCY HEAD'S DETERMINATION THAT A PROPOSAL
WOULD VIOLATE
APPLICABLE LAW, REGULATION OF APPROPRIATE AUTHORITY OUTSIDE THE
AGENCY, OR THIS ORDER . . .
IN THE PRESENT CASE, THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
APPEALED FROM A DETERMINATION BY THE DEPARTMENT OF AGRICULTURE THAT
CERTAIN PROPOSALS PRESENTED IN NEGOTIATIONS BETWEEN AFGE LOCAL 3157 AND
THE SUPERVISOR, NEW ORLEANS, LA., COMMODITY INSPECTION AND GRAIN
INSPECTION BRANCHES, GRAIN DIVISION, UNITED STATES DEPARTMENT OF
AGRICULTURE ARE NONNEGOTIABLE BECAUSE THEY VIOLATE THE ORDER.
SUBSEQUENTLY, AFGE SOUGHT TO INTRODUCE BEFORE THE COUNCIL REVISED
PROPOSALS "AS THE PROPOSALS IN DISPUTE." IN THIS REGARD, AFGE STATES
THAT ITS REVISIONS WERE SUBMITTED IN VIEW OF "THE DISCOVERY OF
ADDITIONAL INFORMATION DIRECTLY RELEVANT TO OUR POSITION IN THIS CASE."
HOWEVER, SINCE THE REVISED PROPOSALS CONCERNING WHICH A COUNCIL
RULING IS SOUGHT HAVE NOT BEEN ADVANCED IN NEGOTIATIONS AND, MOREOVER,
HAVE NOT BEEN REFERRED TO THE AGENCY HEAD FOR A NEGOTIABILITY
DETERMINATION PURSUANT TO SECTION 11(C) OF THE ORDER, THE CONDITIONS FOR
COUNCIL REVIEW PRESCRIBED IN SECTION 11(C)(4) OF THE ORDER, AND SECTION
2411.22 OF THE COUNCIL'S RULES OF PROCEDURE, HAVE NOT BEEN MET. /1/
ACCORDINGLY, WITHOUT PASSING ON THE MERITS, SINCE YOUR APPEAL FAILS
TO MEET THE CONDITIONS PRESCRIBED FOR REVIEW IN SECTION 11(C)(4) OF THE
ORDER, IN ACCORDANCE WITH SECTION 2411.22 OF THECOUNCIL'S RULES, REVIEW
OF YOUR APPEAL IS HEREBY DENIED. /2/
BY THE COUNCIL.
CC: M. A. SIMMS
AGRICULTURE DEPT.
/1/ CF. AFGE LOCAL 2151 AND GENERAL SERVICES ADMINISTRATION, REGION
3, FLRC NO. 75A-28 (OCTOBER 8, 1975), REPORT NO. 86; AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, NATIONAL JOINT COUNCIL OF FOOD
INSPECTION LOCALS AND OFFICE OF THE ADMINISTRATOR, ANIMAL AND PLANT
HEALTH INSPECTION SERVICE, U.S. DEPARTMENT OF AGRICULTURE, FLRC NO.
73A-36 (JUNE 10, 1975), REPORT NO. 73 AT NN. 11 AND 12, AFF'D, NATIONAL
BROILER COUNCIL, INC. V. FEDERAL LABOR RELATIONS COUNCIL, CIVIL ACTION
NO. 147-47-A (E.D. VA., SEPTEMBER 5, 1975).
/2/ IN VIEW OF OUR DECISION HEREIN, AFGE'S "MOTION FOR FACTFINDING"
IS ALSO PREMATURE AND IS, THEREFORE, DENIED.
3 FLRC 657; FLRC NO. 73A-46; OCTOBER 8, 1975.
NAVAL REWORK FACILITY, NAVAL AIR STATION,
JACKSONVILLE, FLORIDA
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R5-82
(SYNOPSIS) FLRC NO. 73A-46
NAVAL REWORK FACILITY, NAVAL AIR STATION, JACKSONVILLE, FLORIDA AND
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R5-82 (GOODMAN,
ARBITRATOR). THE ARBITRATOR DETERMINED THAT THE AGENCY VIOLATED THE
PARTIES' AGREEMENT BY THE MANNER IN WHICH IT SCHEDULED WORK TO AVOID
OVERTIME, AND DIRECTED THE AGENCY TO COMPENSATE THE GRIEVANTS FOR THE
FOUR HOURS ADDITIONAL OVERTIME THEY WOULD HAVE RECEIVED IF THEY HAD
WORKED SUCH OVERTIME. UPON APPEAL BY THE UNION AND BASED ON THE ADVICE
OF THE CIVIL SERVICE COMMISSION WHICH, RELYING ON THEN APPLICABLE
DECISIONS OF THE COMPTROLLER GENERAL, CONCLUDED THAT THE REMEDY PORTION
OF THE AWARD VIOLATED APPLICABLE LAW AND APPROPRIATE REGULATION, THE
COUNCIL ISSUED ITS INITIAL DECISION STRIKING SO MUCH OF THE AWARD AS
DIRECTED THE PAYMENT OF ADDITIONAL COMPENSATION TO THE GRIEVANTS
(SEPTEMBER 24, 1974, REPORT NO. 56). SUBSEQUENTLY, THE UNION REQUESTED
THAT THE COUNCIL REOPEN, RECONSIDER AND MODIFY THE DECISION IN LIGHT OF
COMPTROLLER GENERAL DECISIONS ISSUED AFTER SEPTEMBER 24, 1974. BECAUSE
THE UNION MADE ITS REQUEST FOR RECONSIDERATION AND MODIFICATION ON THE
BASIS OF A DECISION OF THE COMPTROLLER GENERAL, THE COUNCIL REQUESTED
FROM HIM A DECISION AS TO THE APPLICATION OF THAT DECISION, AND
SUBSEQUENT DECISIONS OF HIS OFFICE, TO THE FACTS OF THIS CASE,
ESPECIALLY AS TO WHETHER PAYMENT OF THE ARBITRATOR'S AWARD OF OVERTIME
PAY MAY NOW LEGALLY BE MADE.
COUNCIL ACTION (OCTOBER 8, 1975). BASED UPON A DECISION OF THE
COMPTROLLER GENERAL IN RESPONSE TO THE COUNCIL'S REQUEST, THE COUNCIL
ISSUED A REVISED DECISION FINDING THAT THE ARBITRATOR'S AWARD DOES NOT
VIOLATE THE RELEVANT STATUTE AND IMPLEMENTING REGULATIONS. ACCORDINGLY,
PURSUANT TO SECTION 2411.37(B) OF THE COUNCIL'S RULES OF PROCEDURE, THE
COUNCIL REVERSED ITS PRIOR DECISION IN THE CASE AND SUSTAINED THE
ARBITRATOR'S AWARD.
THIS APPEAL AROSE BY REASON OF THE REMEDY AWARDED BY THE ARBITRATOR
AS A RESULT OF HIS FINDING THAT THE AGENCY HAD VIOLATED ARTICLE XII,
SECTION 4, OF THE PARTIES' NEGOTIATED AGREEMENT.
ARTICLE XII, SECTION 4, PROVIDES:
EMPLOYEES WILL BE REQUIRED TO WORK ON A HOLIDAY IF NECESSARY IN ORDER
TO EFFECTIVELY
ACCOMPLISH THE MISSION OF THE FACILITY; HOWEVER, SUCH HOLIDAY WORK
WILL NOT BE SCHEDULED TO
AVOID OVERTIME.
THE ARBITRATOR FOUND THAT EMPLOYEES OF CERTAIN REPAIR SHOPS AT THE
NAVAL AIR REWORK FACILITY HAD BEEN SCHEDULED TO WORK ON AN OVERTIME
BASIS ON SATURDAY, JANUARY 27, 1973, IN ADDITION TO THE NORMAL MONDAY
THROUGH FRIDAY WORKWEEK. DUE TO THE DEATH OF FORMER PRESIDENT LYNDON B.
JOHNSON, THE PRESIDENT DECLARED THURSDAY, JANUARY 25, A NATIONAL
HOLIDAY. /1/
FOLLOWING THE DESIGNATION OF THE NATIONAL HOLIDAY, 56 EMPLOYEES WERE
ORDERED TO WORK ON THE HOLIDAY (JANUARY 25) AND ONLY 28 ON THE FOLLOWING
SATURDAY (JANUARY 27).
THE UNION GRIEVED, CONTENDING THAT MANAGEMENT'S ACTION BY WORKING
CERTAIN EMPLOYEES ON THE HOLIDAY BUT NOT ON THE FOLLOWING SATURDAY WAS
IN VIOLATION OF ARTICLE XII, SECTION 4, OF THE AGREEMENT, WHICH, AS
ALREADY INDICATED, PROVIDES THAT "HOLIDAY WORK WILL NOT BE SCHEDULED TO
AVOID OVERTIME." THE ACTIVITY RESPONDED THAT 56 EMPLOYEES HAD BEEN
SCHEDULED TO WORK ON BOTH DATES, THAT ALL 56 WORKED ON THURSDAY AS
SCHEDULED, BUT THAT SATURDAY OVERTIME WORK FOR 28 OF THESE EMPLOYEES WAS
CANCELLED ON FRIDAY, JANUARY 26, BECAUSE OF MATERIAL SHORTAGES.
THE DISPUTE ULTIMATELY WENT TO ARBITRATION. THE ARBITRATOR FOUND
THAT WHILE "THERE DOES NOT APPEAR TO BE AN ABSOLUTELY CLEAR INDICATION
OF NAVY INTENT ON THIS MATTER . . . THE ACTS OF THE NAVY DID, IN FACT,
AVOID OVERTIME PAY." CONSEQUENTLY, HE SUSTAINED THE UNION'S GRIEVANCE.
AS A REMEDY, HE DIRECTED THAT, AS REQUESTED BY THE UNION, "ALL PERSONNEL
WHO WORKED ON THURSDAY, JANUARY 25, 1973, AND WERE NOT ALLOWED TO WORK
ON SATURDAY, JANUARY 27, 1973, ARE TO BE PAID FOR FOUR ADDITIONAL
HOURS." /2/
THE AGENCY FILED A PETITION FOR REVIEW OF THE REMEDY PORTION OF THE
ARBITRATOR'S AWARD. /3/ UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF
PROCEDURE, THE COUNCIL ACCEPTED THE PETITION FOR REVIEW OF ONE OF THE
AGENCY'S EXCEPTIONS, NAMELY, THAT THE ARBITRATOR'S AWARD, WHICH DIRECTS
COMPENSATION BE PAID TO EMPLOYEES FOR OVERTIME WHICH THEY HAD NOT
ACTUALLY WORKED, WOULD BE UNLAWFUL UNDER APPLICABLE PAY STATUTES AS
INTERPRETED (AND CITED) BY THE COMPTROLLER GENERAL. /4/ THE COUNCIL
ALSO GRANTED THE AGENCY'S REQUEST FOR A STAY PENDING THE COUNCIL'S
DETERMINATION OF THE INSTANT APPEAL.
THE UNION FILED A BRIEF; THE AGENCY RELIED ON THE REASONING SET
FORTH IN ITS PETITION FOR REVIEW.
SECTION 2411.37(A) OF THE COUNCIL'S RULES OF PROCEDURE PROVIDES, IN
PERTINENT PART, THAT "AN AWARD OF AN ARBITRATOR SHALL BE MODIFIED, SET
ASIDE IN WHOLE OR IN PART, OR REMANDED ONLY ON GROUNDS THAT THE AWARD
VIOLATES APPLICABLE LAW, APPROPRIATE REGULATION . . . "
THE QUESTION BEFORE THE COUNCIL IS WHETHER THE REMEDY PORTION OF THE
ARBITRATOR'S AWARD, WHICH GRANTS 4 HOURS' PAY TO PERSONNEL WHO WORKED ON
THURSDAY AND WERE NOT ALLOWED TO WORK ON SATURDAY, TO COMPENSATE FOR THE
DIFFERENCE BETWEEN THE 48 HOURS' PAY THEY RECEIVED FOR 40 HOURS OF WORK
(I.E., 5 DAYS OF WORK PLUS 8 HOURS' HOLIDAY PAY AT STRAIGHT TIME) AND 52
HOURS' PAY THEY WOULD HAVE RECEIVED FOR 40 HOURS OF WORK UNDER THE
CANCELLED SCHEDULE (I.E., 4 DAYS OF WORK AND 8 HOURS' HOLIDAY PAY AT
STRAIGHT TIME, PLUS 8 HOURS OF WORK ON SATURDAY AT THE OVERTIME RATE OF
TIME AND ONE-HALF), VIOLATES APPLICABLE LAW OR IMPLEMENTING REGULATIONS.
SINCE THE UNITED STATES CIVIL SERVICE COMMISSION IS AUTHORIZED, UNDER
5 U.S.C. 5548 TO PRESCRIBE REGULATIONS TO IMPLEMENT STATUTORY PROVISIONS
RELATING TO PREMIUM PAY, INCLUDING HOLIDAY AND OVERTIME PAY, THAT AGENCY
WAS REQUESTED FOR AN INTERPRETATION OF THE RELEVANT STATUTES AND
IMPLEMENTING CSC REGULATIONS AS THEY PERTAIN TO THE ARBITRATOR'S AWARD
OF OVERTIME PAY IN THIS CASE. RELYING ON APPLICABLE DECISIONS OF THE
COMPTROLLER GENERAL, THE CIVIL SERVICE COMMISSION CONCLUDED THAT THE
REMEDY PORTION OF THE ARBITRATOR'S AWARD WAS IN VIOLATION OF APPLICABLE
LAW AND APPROPRIATE REGULATIONS, AND, ACCORDINGLY, THE COUNCIL MODIFIED
THE AWARD OF THE ARBITRATOR BY STRIKING THAT PORTION WHICH AWARDED 4
ADDITIONAL HOURS' PAY TO CERTAIN PERSONNEL. /5/
THE MATTER IS NOW BEFORE THE COUNCIL ON A MOTION FILED BY THE UNION
TO REOPEN, RECONSIDER AND MODIFY THE DECISION IN LIGHT OF SUBSEQUENT
COMPTROLLER GENERAL DECISIONS. BECAUSE THE UNION MADE ITS REQUEST FOR
RECONSIDERATION AND MODIFICATION ON THE BASIS OF A DECISION OF THE
COMPTROLLER GENERAL, THE COUNCIL REQUESTED FROM HIM A DECISION AS TO THE
APPLICATION OF THAT DECISION, AND SUBSEQUENT DECISIONS OF HIS OFFICE, TO
THE FACTS OF THIS CASE, ESPECIALLY AS TO WHETHER PAYMENT OF THE
ARBITRATOR'S AWARD OF OVERTIME PAY MAY NOW LEGALLY BE MADE. THE
COMPTROLLER GENERAL'S DECISION IN THE MATTER, B-180018, AUGUST 25, 1975,
IS SET FORTH IN RELEVANT PART AS FOLLOWS:
THE ARBITRATION AWARD RESULTED FROM A GRIEVANCE FILED BY THE
EMPLOYEES OF CERTAIN REPAIR
SHOPS AT THE NAVAL REWORK FACILITY CONCERNING THE NUMBER OF EMPLOYEES
SCHEDULED TO WORK ON
THURSDAY, JANUARY 25, 1973, AND ON SATURDAY, JANUARY 27, 1973. IT
HAD APPARENTLY BEEN THE
PRACTICE OF CERTAIN REPAIR SHOPS AT THE FACILITY TO SCHEDULE OVERTIME
ON SATURDAY IN ADDITION
TO THE NORMAL MONDAY THROUGH FRIDAY ADMINISTRATIVE WORKWEEK.
THURSDAY, JANUARY 25, 1973, WAS
A NATIONAL HOLIDAY DECLARED BY PRESIDENT NIXON TO MOURN THE DEATH OF
FORMER PRESIDENT LYNDON
B. JOHNSON.
THE ARBITRATOR FOUND THAT THE AGENCY, IN SCHEDULING WORK DURING THE
DAYS IN QUESTION, HAD
VIOLATED ARTICLE XII, SECTION 4, OF THE PARTIES' NEGOTIATED
AGREEMENT. THE AFOREMENTIONED
SECTION PROVIDES: "EMPLOYEES WILL BE REQUIRED TO WORK ON A HOLIDAY
IF NECESSARY IN ORDER TO
EFFECTIVELY ACCOMPLISH THE MISSION OF THE FACILITY; HOWEVER, SUCH
HOLIDAY WORK WILL NOT BE
SCHEDULED TO AVOID OVERTIME."
THE ARBITRATOR DETERMINED THAT 56 EMPLOYEES WERE ORDERED TO WORK ON
THE NATIONAL HOLIDAY,
JANUARY 25, 1973, AND THAT ONLY 28 EMPLOYEES WERE ORDERED TO WORK ON
THE FOLLOWING SATURDAY,
JANUARY 27, 1973. HE FOUND THAT, ALTHOUGH THERE WAS NO INDICATION IN
THE EVIDENCE AS TO THE
AGENCY'S INTENT ON THE MATTER OF SCHEDULING, THE ACTS OF THE AGENCY
DID, IN FACT, AVOID
OVERTIME PAY. HENCE, THE ARBITRATOR SUSTAINED THE UNION'S GRIEVANCE
AND ORDERED THAT "ALL
PERSONNEL WHO WORKED ON THURSDAY, JANUARY 25, 1973, AND WERE NOT
ALLOWED TO WORK ON SATURDAY,
JANUARY 27, 1973, ARE TO BE PAID FOR FOUR ADDITIONAL HOURS." THE
RATIONALE FOR THIS AWARD WAS
THAT THE EMPLOYEES WHO WORKED ON THE HOLIDAY BUT NOT ON SATURDAY HAD
RECEIVED 48 HOURS OF PAY,
CONSISTING OF COMPENSATION FOR THE BASIC 40-HOUR WEEK PLUS 8 HOURS OF
HOLIDAY PAY, AS COMPARED
TO THE 52 HOURS OF PAY RECEIVED BY THE EMPLOYEES WHO WORKED ON
SATURDAY, CONSISTING OF
COMPENSATION FOR THE BASIC 40-HOUR WEEK PLUS 8 HOURS OF SATURDAY WORK
AT THE OVERTIME RATE OF
TIME AND ONE-HALF. THE AGENCY APPARENTLY AGREED WITH THE FINDINGS AND
CONCLUSIONS OF THE
ARBITRATOR, BUT BELIEVED THAT THE PAYMENTS AWARDED WOULD BE IMPROPER
UNDER THE DECISIONS OF
OUR OFFICE. THEREFORE, THE AGENCY FILED AN EXCEPTION TO THE PAYMENT
PORTION OF THE AWARD,
RELYING ON THE RULE STATED IN SEVERAL OF OUR DECISIONS THAT EMPLOYEES
MAY NOT BE COMPENSATED
FOR OVERTIME WORK WHEN THEY DO NOT ACTUALLY PERFORM WORK DURING THE
OVERTIME PERIOD. SEE, FOR
EXAMPLE, 42 COMP.GEN. 195 (1962); 45 ID. 710 (1966); 46 ID. 217
(1966); AND B-275867, JUNE 19,
1972. THE FEDERAL LABOR RELATIONS COUNCIL UPHELD THE EXCEPTION IN
ITS DECISION OF SEPTEMBER
24, 1974, ON THE BASIS OF THE COMPTROLLER GENERAL'S DECISIONS.
WITH RESPECT TO THE "NO WORK, NO PAY" POLICY, WE HAD HELD IN THOSE
DECISIONS THAT THE "WITHDRAWAL OR REDUCTION" IN PAY REFERRED TO IN THE
BACK PAY ACT, NOW CODIFIED IN 5 U.S.C. 5596 (1970), MEANT ONLY THE
ACTUAL WITHDRAWAL OR REDUCTION OF PAY OR ALLOWANCES WHICH THE EMPLOYEE
HAD PREVIOUSLY RECEIVED OR WAS ENTITLED TO. THESE HOLDINGS WERE
FOLLOWED IN B-175867, JUNE 19, 1972, WHERE AN EMPLOYEE WAS DEPRIVED OF
THE OPPORTUNITY TO WORK OVERTIME BY THE AGENCY'S FAILURE TO COMPLY WITH
ITS AGREEMENT WITH THE UNION. WE STATED THEREIN THAT THE IMPROPER
DENIAL OF THE OPPORTUNITY TO PERFORM OVERTIME TO THE AGGRIEVED EMPLOYEE
WAS NOT AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION UNDER THE BACK
PAY ACT, 5 U.S.C. 5596, AND THE IMPLEMENTING CIVIL SERVICE COMMISSION
REGULATION, 5 C.F.R. 550.803. WE ALSO HELD THAT THE STATUTE AUTHORIZING
OVERTIME, 5 U.S.C. 5542(A), CLEARLY CONTEMPLATED THE ACTUAL PERFORMANCE
OF OVERTIME DUTY, CITING THE ABOVE-MENTIONED DECISIONS. ACCORDINGLY, WE
CONCLUDED THAT, ALTHOUGH THE UNION-MANAGEMENT AGREEMENT HAD BEEN
VIOLATED, THERE WAS NO AUTHORITY FOR OVERTIME PAY SINCE NO OVERTIME WORK
HAD BEEN PERFORMED.
IN OUR EARLIER DECISIONS, WE HAD ALSO CONSTRUED THE BACK PAY ACT OF
1966 AS REQUIRING POSITIVE OR AFFIRMATIVE ACTION BY AN AGENCY OFFICIAL,
RATHER THAN AN OMISSION OR FAILURE TO TAKE ACTION FOR AN IMPROPER
REASON, IN ORDER TO PROVIDE A REMEDY IN THE FORM OF BACKPAY. FOR
EXAMPLE, WE HELD AN EMPLOYEE WAS NOT ENTITLED TO BACKPAY, WHERE HIS
AGENCY HAD IMPROPERLY FAILED TO PROMOTE HIM. SEE 48 COMP.GEN. 502
(1969).
IN OUR MORE RECENT DECISIONS, HOWEVER, WE HAVE HELD THAT THE
VIOLATION OF A MANDATORY PROVISION OF A NEGOTIATED AGREEMENT RESULTING
IN THE LOSS OR REDUCTION OF AN EMPLOYEE'S PAY, ALLOWANCES OR
DIFFERENTIALS, IS AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION,
PROVIDED THAT THE MANDATORY PROVISION WAS PROPERLY INCLUDED IN THE
AGREEMENT. HENCE, WE NOW BELIEVE THAT SUCH VIOLATIONS ARE SUBJECT TO
THE BACK PAY ACT, 5 U.S.C. 5596, AND THAT THE ACT IS THE APPROPRIATE
STATUTORY AUTHORITY TO COMPENSATE AN EMPLOYEE FOR PAY, ALLOWANCES, AND
DIFFERENTIALS HE WOULD HAVE RECEIVED BUT FOR THE VIOLATION OF THE
MANDATORY PROVISION IN THE NEGOTIATED AGREEMENT. 54 COMP.GEN. 312
(1974), AND 54 ID. 403 )1974). OUR PRESENT POSITION IS STATED AT 54
COMP.GEN. 312, 318 AS FOLLOWS:
"WE BELIEVE THAT A VIOLATION OF A PROVISION IN A COLLECTIVE
BARGAINING AGREEMENT, SO LONG
AS THAT PROVISION IS PROPERLY INCLUDABLE IN THE AGREEMENT, WHICH
CAUSES AN EMPLOYEE TO LOSE
PAY, ALLOWANCES OR DIFFERENTIALS, IS AS MUCH AN IMPROPER SUSPENSION,
FURLOUGH WITHOUT PAY,
DEMOTION OR REDUCTION IN PAY AND THAT THEREFORE THE BACK PAY ACT IS
THE APPROPRIATE STATUTORY
AUTHORITY FOR COMPENSATING THE EMPLOYEE FOR THE PAY, ALLOWANCES OR
DIFFERENTIALS HE WOULD HAVE
RECEIVED BUT FOR THE VIOLATION OF THE AGREEMENT. IN THAT REGARD, TO
THE EXTENT THAT PREVIOUS
DECISIONS OF THIS OFFICE MAY HAVE BEEN INTERPRETED AS HOLDING TO THE
CONTRARY, SUCH DECISIONS
WILL NO LONGER BE FOLLOWED."
WE HAVE ALSO RECENTLY HELD THAT A FINDING BY AN APPROPRIATE
AUTHORITY, SUCH AS THE
ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS, THAT AN
EMPLOYEE HAS UNDERGONE AN
UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION AS A RESULT OF AN UNFAIR
LABOR PRACTICE WHICH
DIRECTLY CAUSED THE EMPLOYEE TO BE DEPRIVED OF PAY, ALLOWANCES OR
DIFFERENTIALS HE WOULD
OTHERWISE HAVE RECEIVED BUT FOR SUCH ACTION, WOULD ENTITLE THE
EMPLOYEE TO BACKPAY. 54
COMP.GEN. 760 (1975).
FINALLY, WE RULED IN B-175275, JUNE 20, 1975, 54 COMP.GEN. . . . ,
THAT AN EMPLOYEE
DEPRIVED OF OVERTIME PAY IN VIOLATION OF A LABOR-MANAGEMENT AGREEMENT
MAY BE AWARDED BACKPAY
UNDER THE BACK PAY ACT FOR THE OVERTIME LOST. IN THAT DECISION, WE
EXPRESSLY SET ASIDE THE
DISTINCTION BETWEEN COMMISSION AND OMISSION IN CONNECTION WITH
IMPROPER PERSONNEL ACTIONS. IN
VIEW OF THE FOREGOING, OUR PRESENT POSITION IS THAT AN UNJUSTIFIED OR
UNWARRANTED PERSONNEL
ACTION MAY INVOLVE ACTS OF OMISSION AS WELL AS ACTS OF COMMISSION.
SUCH IMPROPER ACTION MAY
INVOLVE THE FAILURE TO PROMOTE AN EMPLOYEE IN A TIMELY MANNER WHEN
THERE IS A MANDATORY
REQUIREMENT TO DO SO OR THE FAILURE TO AFFORD AN EMPLOYEE AN
OPPORTUNITY FOR OVERTIME WORK IN
ACCORDANCE WITH MANDATORY REQUIREMENTS OF AGENCY REGULATIONS OR A
NEGOTIATED AGREEMENT. THUS,
AN AGENCY MAY RETROACTIVELY GRANT BACKPAY, ALLOWANCES AND
DIFFERENTIALS UNDER THE PROVISIONS
OF THE BACK PAY ACT TO AN EMPLOYEE WHO HAS UNDERGONE AN UNJUSTIFIED
OR UNWARRANTED PERSONNEL
ACTION, WITHOUT REGARD FOR WHETHER SUCH ACTION WAS ONE OF OMISSION OR
COMMISSION.
THE ARBITRATOR CONCLUDED IN THE PRESENT CASE THAT 28 EMPLOYEES HAD
BEEN DEPRIVED OF
OVERTIME WORK IN VIOLATION OF A PROVISION OF THE NEGOTIATED
AGREEMENT. THE ARBITRATOR ALSO
CONCLUDED, AND THE AGENCY ADMITTED, THAT HAD THE 28 EMPLOYEES BEEN
PROPERLY SCHEDULED, THEY
WOULD HAVE RECEIVED 52 HOURS OF PAY FOR 40 HOURS OF WORK INSTEAD OF
48 HOURS OF PAY FOR THE 40
HOURS ACTUALLY WORKED. THEREFORE, IN ACCORDANCE WITH B-175275, JUNE
20, 1975, 54
COMP.GEN. . . . , SUPRA, WE HOLD THAT THE ARBITRATOR'S AWARD OF
BACKPAY FOR EMPLOYEES DEPRIVED
OF OVERTIME WORK IN THIS CASE MAY BE IMPLEMENTED BY THE AGENCY IN
ACCORDANCE WITH THE
PROVISIONS OF 5 U.S.C. 5596 AND IMPLEMENTING REGULATIONS.
BASED UPON THE FOREGOING DECISION BY THE COMPTROLLER GENERAL, WE MUST
CONCLUDE THAT THE ARBITRATOR'S AWARD DOES NOT VIOLATE THE BACK PAY ACT
(5 U.S.C. 5596) AND IMPLEMENTING REGULATIONS.
FOR THE FOREGOING REASONS, WE FIND THAT THE AWARD DOES NOT VIOLATE
THE BACK PAY ACT (5 U.S.C. 5596) AND IMPLEMENTING REGULATIONS.
ACCORDINGLY, PURSUANT TO SECTION 2411.37(B) OF THE COUNCIL'S RULES OF
PROCEDURE, WE REVERSE OUR PRIOR DECISION IN THIS CASE DATED SEPTEMBER
24, 1974, AND SUSTAIN THE ARBITRATOR'S AWARD.
BY THE COUNCIL.
ISSUED: OCTOBER 8, 1975
/1/ ARTICLE XII, SECTION 1, OF THE NEGOTIATED AGREEMENT PROVIDES:
EMPLOYEES SHALL BE ENTITLED TO HOLIDAY BENEFITS CONSISTENT WITH
APPLICABLE REGULATIONS, IN
CONNECTION WITH ALL FEDERAL HOLIDAYS NOW PRESCRIBED BY LAW AND ANY
THAT MAY BE ADDED BY
LAW. HOLIDAYS DESIGNATED BY EXECUTIVE ORDER SHALL BE OBSERVED AS
LEGAL HOLIDAYS.
/2/ THE 28 EMPLOYEES WHO WORKED ON THE HOLIDAY BUT NOT ON SATURDAY
HAD RECEIVED 48 HOURS PAY (I.E., 5 DAYS OF WORK PLUS 8 HOURS OF HOLIDAY
PAY AT STRAIGHT TIME) AS COMPARED WITH THE 52 HOURS PAY THEY WOULD HAVE
RECEIVED UNDER THE CANCELLED SCHEDULE (I.E., 4 DAYS OF WORK AND 8 HOURS
OF HOLIDAY PAY AT STRAIGHT TIME PLUS 8 HOURS OF SATURDAY WORK AT THE
OVERTIME RATE OF TIME AND ONE-HALF.)
/3/ THE AGENCY INDICATED THAT IT ACCEPTED THE ARBITRATOR'S CONCLUSION
THAT IT HAD, IN FACT, ACTED TO AVOID OVERTIME PAY. IT ALSO ADMITTED
THAT HAD THE 28 EMPLOYEES BEEN PROPERLY SCHEDULED, THEY WOULD HAVE
RECEIVED 52 HOURS PAY FOR 40 HOURS OF WORK INSTEAD OF 48 HOURS PAY FOR
THE 40 HOURS ACTUALLY WORKED.
/4/ THE AGENCY RELIED UPON THE FOLLOWING DECISIONS OF THE COMPTROLLER
GENERAL AS STANDING FOR THE PROPOSITION THAT EMPLOYEES MAY NOT BE
COMPENSATED FOR OVERTIME WORK WHERE THEY DO NOT ACTUALLY PERFORM THE
WORK DURING THE OVERTIME PERIOD: 42 COMP.GEN. 195; 45 COMP.GEN. 710;
46 COMP.GEN. 217; AND B-175867 OF JUNE 19, 1972.
/5/ NAVAL REWORK FACILITY, NAVAL AIR STATION, JACKSONVILLE, FLORIDA,
AND NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R5-82 (GOODMAN,
ARBITRATOR), FLRC NO. 73A-46 (SEPTEMBER 24, 1974), REPORT NO. 56.
3 FLRC 650; FLRC NO. 75A-56; OCTOBER 3, 1975.
MR. THOMAS J. O'ROURKE
STAFF ASSISTANT TO THE
REGIONAL COUNSEL
OFFICE OF THE REGIONAL COUNSEL
219 SOUTH DEARBORN STREET
CHICAGO, ILLINOIS 60604
(SYNOPSIS) FLRC NO. 75A-56
INTERNAL REVENUE SERVICE (OGDEN SERVICE CENTER) AND NATIONAL
ASSOCIATION OF INTERNAL REVENUE SERVICE EMPLOYEES, CHAPTER 67 (GORSUCH,
ARBITRATOR). THE ARBITRATOR DETERMINED, AS HERE RELEVANT, THAT THE USE
OF SELECTION TECHNIQUES, INCLUDING INTERVIEWS, WHICH HAD NOT BEEN
ANNOUNCED IN THE VACANCY ANNOUNCEMENT WAS VIOLATIVE OF THE PARTIES'
AGREEMENT. THE AGENCY FILED EXCEPTIONS TO THIS ASPECT OF THE
ARBITRATOR'S AWARD WITH THE COUNCIL, CONTENDING THAT (1) THE AWARD
VIOLATES CIVIL SERVICE COMMISSION REGULATIONS; AND (2) THE ARBITRATOR
IMPOSED AN OBLIGATION ON MANAGEMENT WHICH IS NOT FOUND IN THE PARTIES'
AGREEMENT AND THEREBY, IN EFFECT, EXCEEDED THE SCOPE OF HIS AUTHORITY.
COUNCIL ACTION (OCTOBER 3, 1975). THE COUNCIL FOUND THAT THE
AGENCY'S PETITION DID NOT PROVIDE SUFFICIENT FACTS AND CIRCUMSTANCES TO
SUPPORT ITS CONTENTIONS. ACCORDINGLY, THE COUNCIL DENIED THE AGENCY'S
PETITION BECAUSE IT FAILED TO MEET THE REQUIREMENTS FOR REVIEW AS SET
FORTH IN SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE.
DEAR MR. O'ROURKE:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ARBITRATOR'S AWARD, AND THE UNION'S OPPOSITION THERETO, IN THE
ABOVE-ENTITLED CASE.
ACCORDING TO THE ARBITRATOR'S AWARD, THE PARTIES SUBMITTED FOUR
ISSUES /1/ TO ARBITRATION INCLUDING THE FOLLOWING:
CAN THE SELECTION OFFICIAL USE SELECTION TECHNIQUES, INCLUDING
INTERVIEWS WHICH HAVE NOT
BEEN ANNOUNCED ON THE VACANCY ANNOUNCEMENT?
THE ARBITRATOR'S ANSWER TO THIS QUESTION WAS "NO." IN SETTING FORTH
HIS REASONING, THE ARBITRATOR STATED IN PERTINENT PART:
WHAT IS REALLY AT ISSUE HERE IS JUST WHAT MATERIALS THE SELECTING
OFFICIAL IS ENTITLED TO
USE WHEN MAKING HIS CHOICE OF THE PERSON ULTIMATELY SELECTED BY HIM .
. .
TO THE ARBITRATOR IT WOULD SEEM THAT WHEN THE UNDERLYING LANGUAGE OF
F.P.M., 335, 3-4(B)
/2/ MAKES IT CLEAR THAT THE VACANCY ANNOUNCEMENT MUST CONTAIN "THE
EVALUATION METHODS TO BE
USED" AND THEN THE PARTIES BY M.C.A., ARTICLE 6, 4.A.9 /3/ REITERATED
THIS, ANY EMPLOYEE
WOULD BE ENTITLED TO KNOW WHAT METHODS ARE TO BE USED IN EVALUATING
ALL CANDIDATES . . .
THE BASIC QUESTION IS WHETHER THE SELECTING OFFICIAL MAY USE
INFORMATION OR DATA NOT
DISCLOSED IN THE VACANCY ANNOUNCEMENT IN MAKING HIS ULTIMATE CHOICE .
. .
IT IS THEREFORE INCUMBENT UPON THE AGENCY TO SEE TO IT THAT THERE IS
DESCRIBED IN THE
VACANCY ANNOUNCEMENT ANY EVALUATION METHODS AS WELL AS ANY SELECTIVE
PLACEMENT FACTORS WHICH
ARE TO BE USED IN THE ULTIMATE SELECTION OF WHO IS TO GET THE VACANCY
AND TO SEE TO IT THAT
THE SELECTION OFFICIAL IS FURNISHED WITH ENOUGH INFORMATION ABOUT THE
VARIOUS APPLICANTS TO
MAKE A SOUND CHOICE . . . CERTAINLY NOTHING HEREIN AS THE UNION
AGREES, LIMITS THE RIGHT FOR
THE SUPERVISORY OFFICIAL TO MAKE HIS SELECTION AS PROVIDED IN F.P.M.
335-3-7-C. /4/
THE AGENCY REQUESTS THAT THE COUNCIL ACCEPT ITS PETITION FOR REVIEW
OF THE ARBITRATOR'S AWARD ON THE BASIS OF TWO EXCEPTIONS DISCUSSED
BELOW.
UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE, REVIEW OF
AN ARBITRATION AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON
THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE
EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES
APPLICABLE LAW, APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS
SIMILAR TO THOSE UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE
SUSTAINED BY COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS."
IN ITS FIRST EXCEPTION, THE AGENCY CONTENDS THAT THE ARBITRATOR'S
AWARD VIOLATED THE REGULATIONS OF THE CIVIL SERVICE COMMISSION AS STATED
IN CHAPTER 335, SUBCHAPTERS 5-1D(3), 5-3A, AND 3-7C OF THE FEDERAL
PERSONNEL MANUAL (FPM). /5/
IN SUPPORT OF ITS FIRST EXCEPTION, THE AGENCY CONTENDS THAT THE
ARBITRATOR "ERRONEOUSLY EQUATED THE TERMS 'EVALUATION METHODS TO BE
USED' AND 'SELECTIVE PLACEMENT FACTORS' WITH THE TERM 'SELECTION
TECHNIQUES.'" THE AGENCY ARGUED TO THE ARBITRATOR, AND ASSERTS IN ITS
PETITION FOR REVIEW TO THE COUNCIL, THAT THE TERM "SELECTION TECHNIQUES"
MEANS SOMETHING QUITE DIFFERENT FROM "SELECTIVE PLACEMENT FACTORS" AND
"EVALUATION METHODS." THUS, THE ESSENCE OF THE AGENCY'S CONTENTION IS
THAT THIS ERRONEOUS EQUATION OF TERMS BY THE ARBITRATOR, WHICH, IN
EFFECT, RESULTS IN THE REQUIREMENT THAT "SELECTION TECHNIQUES" BE
CONTAINED IN VACANCY ANNOUNCEMENTS, "PLACES A LIMITATION ON THE
DISCRETION OF THE SELECTING OFFICIAL WHICH IS EXPRESSLY CONTRARY TO THE
PROVISIONS OF CHAPTER 335 OF THE FEDERAL PERSONNEL MANUAL." IN THE
COUNCIL'S OPINION, WHILE THIS EXCEPTION WHICH ALLEGES THAT THE AWARD
VIOLATES THE FPM DOES STATE A GROUND FOR REVIEW, IT DOES NOT APPEAR TO
BE SUPPORTED BY FACTS AND CIRCUMSTANCES DESCRIBED IN THE AGENCY'S
PETITION, AS REQUIRED BY SECTION 2411.32 OF THE COUNCIL'S RULES.
IN RESPONSE TO THE QUESTION SUBMITTED BY THE PARTIES, THE ARBITRATOR
DECIDED THAT ARTICLE 6, SECTION 4A9 OF THE M.C.A., REITERATING FPM,
CHAPTER 335, SUBCHAPTER 3-4B, MAKES IT "INCUMBENT UPON THE AGENCY TO SEE
TO IT THAT THERE IS DESCRIBED IN THE VACANCY ANNOUNCEMENT ANY EVALUATION
METHODS AS WELL AS ANY SELECTIVE PLACEMENT FACTORS WHICH ARE TO BE USED
IN THE ULTIMATE SELECTION OF WHO IS TO GET THE VACANCY . . . " HENCE,
THE ARBITRATOR DID NOT DEFINE "SELECTION TECHNIQUES" TO INCLUDE ANYTHING
MORE THAN "EVALUATION METHODS" AND "SELECTIVE PLACEMENT FACTORS."
INDEED, AS INDICATED ABOVE, THE AGENCY CONCEDES IN ITS FIRST EXCEPTION
THAT THE ARBITRATOR "EQUATED THE TERMS 'EVALUATION METHODS TO BE USED'
AND 'SELECTIVE PLACEMENT FACTORS' WITH THE TERM 'SELECTION TECHNIQUES.'"
THE UNION ALSO CONCEDES THAT THE "ESSENCE OF THE ARBITRATOR'S DECISION
IS THAT, PURSUANT TO F.P.M. 335.3-4(B) AND ARTICLE 6, SECTION 4(A)(9) OF
THE M.C.A., THE VACANCY ANNOUNCEMENT MUST CONTAIN THE EVALUATION METHODS
TO BE USED. IN ADDITION, THE ARBITRATOR CONCLUDED THAT SELECTIVE
PLACEMENT FACTORS SHOULD ALSO BE INCLUDED IN THE VACANCY ANNOUNCEMENT."
(FOOTNOTES ELIMINATED.) THE TERM "SELECTION TECHNIQUES" WHICH IS USED IN
THE SUBMISSION AGREEMENT IS NOT DEFINED THEREIN; FURTHER, THE TERM
APPARENTLY IS NOT USED IN THE M.C.A. OR RELEVANT PORTIONS OF THE FPM.
THUS, THE ARBITRATOR, IN RESOLVING THE GRIEVANCE, HAD TO DETERMINE WHAT
THE TERM MEANT. IN SO DOING HE DID NOT ADOPT THE AGENCY'S DEFINITION OF
THE TERM WHICH, ACCORDING TO THE DECISION AND AWARD OF THE ARBITRATOR,
APPEARS TO BE "'METHODS USED BY THE SELECTING OFFICIAL TO CHOOSE A
CANDIDATE TO FILL A VACANCY (SIC) POSITION, . . . " "INSTEAD, THE
ARBITRATOR EQUATED THE TERM TO "EVALUATION METHODS" AND "SELECTIVE
PLACEMENT FACTORS" AND THEREBY CONCLUDED THAT SUCH METHODS AND FACTORS
MUST BE INCLUDED IN THE VACANCY ANNOUNCEMENT. AS NOTED ABOVE, ARTICLE
6, SECTION 4A OF THE MULTI-CENTER AGREEMENT (SET FORTH IN FOOTNOTE 3,
SUPRA) EXPRESSLY REQUIRES "SELECTIVE PLACEMENT FACTORS" AND "EVALUATION
METHODS" TO BE INCLUDED IN VACANCY ANNOUNCEMENTS. FURTHER, AS THE UNION
POINTS OUT IN ITS OPPOSITION TO THE AGENCY'S PETITION FOR REVIEW: THE
PARTIES STIPULATED IN THE SUBMISSION AGREEMENT THAT AN INTERVIEW IS A
"SELECTION TECHNIQUE." FPM SUPPLEMENT 335, SUBCHAPTER S4-1 /6/
ESTABLISHES THAT AN INTERVIEW IS AN "EVALUATION METHOD." THEREFORE, IT
WOULD APPEAR TO FOLLOW THAT "EVALUATION METHODS" COULD BE EQUATED WITH
"SELECTION TECHNIQUES" FOR THE PURPOSES OF RESOLVING THIS GRIEVANCE.
FINALLY, THE ARBITRATOR REASSURED THE PARTIES THAT HIS AWARD WAS ONLY
INTENDED TO ENFORCE THE PROVISIONS OF THE M.C.A. AS AGREED TO BY THE
PARTIES, WAS CONSISTENT WITH THE FPM, AND DID NOT LIMIT "THE RIGHT FOR
THE SUPERVISORY OFFICIAL TO MAKE HIS SELECTION . . . " ACCORDINGLY,
BASED ON THE FOREGOING, THE AGENCY'S PETITION FOR REVIEW DOES NOT
FURNISH SUFFICIENT FACTS AND CIRCUMSTANCES TO SUPPORT THE ASSERTION IN
ITS FIRST EXCEPTION, AS REQUIRED BY SECTION 2411.32 OF THE COUNCIL'S
RULES OF PROCEDURE. /7/
IN ITS SECOND EXCEPTION, THE AGENCY CONTENDS THAT "BY REQUIRING THE
ANNOUNCEMENT OF SELECTION TECHNIQUES IN THE VACANCY ANNOUNCEMENT, . . .
(THE ARBITRATOR) HAS IMPOSED AN ADDITIONAL OBLIGATION ON MANAGEMENT
WHICH IS NOT FOUND IN THE AGREEMENT." THE COUNCIL WILL GRANT A PETITION
FOR REVIEW OF AN ARBITRATION AWARD WHERE IT APPEARS, BASED UPON THE
FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE ARBITRATOR
EXCEEDED THE SCOPE OF HIS AUTHORITY BY FASHIONING AN AWARD WHICH DOES
NOT DRAW ITS ESSENCE FROM THE AGREEMENT. SEE NAGE LOCAL R8-14 AND
FEDERAL AVIATION ADMINISTRATION, OKLAHOMA CITY, OKLAHOMA (STRATTON,
ARBITRATOR), FLRC NO. 74A-38 (JULY 30, 1975), REPORT NO. 79. HOWEVER,
THIS EXCEPTION APPEARS TO BE BASED UPON AN IMPLICIT ASSUMPTION THAT THE
AWARD REQUIRES THE AGENCY TO INCLUDE IN THE VACANCY ANNOUNCEMENT
SOMETHING MORE THAN "EVALUATION METHODS" AND "SELECTIVE PLACEMENT
FACTORS." AS WE POINTED OUT WITH RESPECT TO THE FIRST EXCEPTION, THERE
IS NO BASIS IN THE AWARD FOR THE AGENCY'S APPARENT ASSUMPTION IN THIS
REGARD. THEREFORE IT APPEARS TO THE COUNCIL THAT THE AGENCY HAS NOT
PROVIDED SUFFICIENT FACTS AND CIRCUMSTANCES TO SUPPORT ITS SECOND
EXCEPTION THAT THE AWARD IS, IN EFFECT, "'SO PALPABLY FAULTY THAT NO
JUDGE, OR GROUP OF JUDGES, COULD EVER CONCEIVABLY HAVE MADE SUCH A
RULING' OR COULD NOT 'IN ANY RATIONAL WAY BE DERIVED FROM THE AGREEMENT'
OR EVIDENCES 'A MANIFEST DISREGARD OF THE AGREEMENT' OR ON ITS FACE
REPRESENTS AN IMPLAUSIBLE INTERPRETATION THEREOF."
ACCORDINGLY THE COUNCIL HAS DENIED REVIEW OF THE AGENCY'S PETITION
BECAUSE IT FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS SET FORTH IN
SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE.
BY THE COUNCIL.
CC: F. D'ORAZIO
NTEU
/1/ NO EXCEPTIONS WERE FILED WITH RESPECT TO THE OTHER THREE ISSUES.
/2/ FPM, CHAPTER 335, SUBCHAPTER 3-4B(2), PROVIDES IN PERTINENT PART:
B. VACANCY ANNOUNCEMENTS.
(2) VACANCY ANNOUNCEMENTS ARE TO BE CLEARLY WRITTEN, WITH SUFFICIENT
INFORMATION FOR THE
EMPLOYEE TO UNDERSTAND WHAT THE AREA OF CONSIDERATION IS, WHAT THE
DUTIES OF THE JOB ARE, WHAT
QUALIFICATIONS (INCLUDING SELECTIVE PLACEMENT FACTORS) ARE REQUIRED,
WHAT EVALUATION METHODS
ARE TO BE USED, AND WHAT THE EMPLOYEE HAS TO DO IN ORDER TO APPLY . .
.
/3/ ARTICLE 6, SECTION 4A OF THE PARTIES' MULTI-CENTER AGREEMENT
(M.C.A.), PROVIDES IN PERTINENT PART:
A. VACANCY ANNOUNCEMENTS WILL BE PUBLISHED PRIOR TO FILLING ANY
POSITION COVERED BY THIS
ARTICLE. THE VACANCY ANNOUNCEMENT WILL BE POSTED FOR A MINIMUM OF
TEN (10) WORKING DAYS ON
ALL OFFICIAL BULLETIN BOARDS AND WILL CONTAIN, AT A MINIMUM, THE
FOLLOWING:
8. SELECTIVE PLACEMENT FACTORS, IF ANY;
9. EVALUATION METHODS TO BE USED;
/4/ FPM, CHAPTER 335, SUBCHAPTER 3-7C, PROVIDES IN PERTINENT PART:
C. ACTION BY THE SELECTING OFFICIAL.
THE SELECTING OFFICIAL IS ENTITLED TO MAKE HIS SELECTION FROM ANY OF
THE CANDIDATES ON A
PROMOTION CERTIFICATE, WHETHER OR NOT THE CANDIDATES ARE PRESENTED IN
RANK ORDER, BASED ON HIS
JUDGMENT OF HOW WELL THE CANDIDATES WILL PERFORM IN THE PARTICULAR
JOB BEING FILLED AND, WHEN
RELEVANT, WHAT THEIR POTENTIAL IS FOR FUTURE ADVANCEMENT . . .
/5/ FPM, CHAPTER 335, SUBCHAPTER 5-1D(3), PROVIDES IN PERTINENT PART:
D. MATTERS NOT APPROPRIATE FOR CONSULTATION OR NEGOTIATION. THERE
ARE THREE BROAD
CATEGORIES OF MATTERS THAT ARE NOT WITHIN THE SCOPE OF CONSULTATION
OR NEGOTIATION:
(3) RESERVED MANAGEMENT RIGHTS IDENTIFIED IN EXECUTIVE ORDER 10988.
FOR EXAMPLE, HOW
AGENCY WORK IS ORGANIZED; WHAT DUTIES ARE ASSIGNED TO INDIVIDUAL
POSITIONS; AND WHICH
CANDIDATE AMONG THE BEST-QUALIFIED IS SELECTED FOR PROMOTION.
FPM, CHAPTER 335, SUBCHAPTER 5-3A, PROVIDES IN PERTINENT PART:
A. AGENCY HANDLING OR COMPLAINTS.
. . . THE ONLY MATTERS NOT A BASIS FOR A FORMAL COMPLAINT ARE (1)
FAILURE TO
BE SELECTED FOR PROMOTION WHEN PROPER PROMOTION PROCEDURES ARE USED,
THAT IS, NONSELECTION
FROM A GROUP OF PROPERLY RANKED AND CERTIFIED CANDIDATES, . . .
FPM, CHAPTER 335, SUBCHAPTER 3-7C, IS SET FORTH IN FOOTNOTE 4, SUPRA.
/6/ FPM SUPPLEMENT 335, SUBCHAPTER S4-1, PROVIDES IN PERTINENT PART:
A VARIETY OF METHODS ARE AVAILABLE FOR EVALUATING QUALIFICATIONS.
AMONG THESE ARE
EVALUATION OF TRAINING AND EXPERIENCE, TESTS, INTERVIEWS, AND
PERFORMANCE APPRAISALS. WITHIN
EACH OF THESE BROAD TYPES OF EVALUATION METHODS, THERE ARE VARIOUS
SPECIFIC MEASURING
INSTRUMENTS AND PROCEDURES THAT MAY BE APPLIED. THE PRINCIPLES FOR
SELECTING ANY OF THE
FOLLOWING TYPES OF METHODS ARE DISCUSSED IN SUBCHAPTER S5.
/7/ CF. NAVAL AIR REWORK FACILITY, PENSACOLA, FLORIDA AND AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LODGE NO. 1960 (GOODMAN,
ARBITRATOR), FLRC NO. 74A-12 (SEPTEMBER 9, 1974), REPORT NO. 56.
3 FLRC 635; FLRC NO. 75A-13; OCTOBER 3, 1975.
PATENT OFFICE PROFESSIONAL ASSOCIATION
AND
U.S. PATENT OFFICE, WASHINGTON, D.C.
(SYNOPSIS) FLRC NO. 75A-13
PATENT OFFICE PROFESSIONAL ASSOCIATION AND U.S. PATENT OFFICE,
WASHINGTON, D.C., 74 FSIP 20. THE DISPUTE CONCERNED THE NEGOTIABILITY
UNDER THE ORDER OF A UNION PROPOSAL RELATED TO PRODUCTION GOALS FOR
PATENT EXAMINERS. THE NEGOTIABILITY ISSUE WAS REFERRED TO THE COUNCIL
BY THE FEDERAL SERVICE IMPASSES PANEL UNDER SECTION 2411.26 OF THE THEN
CURRENT RULES OF PROCEDURE OF THE COUNCIL AND THE RELATED SECTION OF THE
PANEL'S RULES OF PROCEDURE.
COUNCIL ACTION (OCTOBER 3, 1975). THE COUNCIL HELD, CONTRARY TO THE
AGENCY HEAD'S DETERMINATION, THAT NEGOTIATION OF THE UNION'S PROPOSAL
WAS NOT PRECLUDED BY THE ORDER OR VARIOUS REGULATIONS OF THE AGENCY OR
OF APPROPRIATE AUTHORITIES OUTSIDE THE AGENCY, AND WAS, THEREFORE,
PROPERLY SUBJECT TO NEGOTIATION BY THE PARTIES CONCERNED UNDER SECTION
11(A) OF THE ORDER. ACCORDINGLY, THE COUNCIL SET ASIDE THE AGENCY
HEAD'S DETERMINATION OF NONNEGOTIABILITY.
DURING CONSIDERATION BY THE FEDERAL SERVICE IMPASSES PANEL OF A
NEGOTIATION IMPASSE BETWEEN THE U.S. PATENT OFFICE (THE AGENCY) AND THE
PATENT OFFICE PROFESSIONAL ASSOCIATION (THE UNION), THE UNION REQUESTED
THAT THE PANEL REFER A NEGOTIABILITY ISSUE TO THE COUNCIL FOR DECISION.
THE ISSUE AROSE FROM A MULTIPART PROPOSAL BY THE UNION (REPRODUCED AS AN
APPENDIX TO THIS DECISION) RELATING TO PRODUCTION GOALS FOR PATENT
EXAMINERS. A DISAGREEMENT AROSE BETWEEN THE AGENCY AND THE UNION AS TO
THE NEGOTIABILITY OF THE UNION'S PROPOSAL AND THE UNION REFERRED THE
ISSUE FOR DETERMINATION TO THE AGENCY HEAD. THE DEPARTMENT OF COMMERCE
RULED THAT THE UNION'S PROPOSAL (WITH THE EXCEPTION OF PART "I" WHICH IS
NOT IN DISPUTE) IS NONNEGOTIABLE ON THE GROUNDS THAT IT WOULD VIOLATE
SECTION 12(B) OF E.O. 11491 AS AMENDED BY E.O. 11616, AND APPLICABLE
REGULATIONS OF THE AGENCY AND OF APPROPRIATE AUTHORITY OUTSIDE THE
AGENCY. /1/
UNDER THESE CIRCUMSTANCES, THE PANEL REFERRED THE NEGOTIABILITY ISSUE
TO THE COUNCIL FOR DECISION PURSUANT TO SECTION 2411.26 OF THE COUNCIL'S
RULES OF PROCEDURE /2/ AND THE RELATED SECTION OF THE PANEL'S RULES OF
PROCEDURE. THE UNION FILED A SUPPLEMENTAL SUBMISSION WITH THE COUNCIL.
THE BASIC CIRCUMSTANCES SURROUNDING THE NEGOTIABILITY DISPUTE,
SUBSTANTIALLY AS STATED BY THE UNION IN ITS APPEAL AND, EXCEPT WHERE
INDICATED, WITHOUT CONTRADICTION BY THE AGENCY, ARE AS FOLLOWS. THE
UNION REPRESENTS PATENT EXAMINERS AT THE U.S. PATENT OFFICE. PATENT
EXAMINERS RESEARCH PREVIOUSLY ISSUED PATENTS AND OTHER SOURCES TO
DETERMINE WHETHER INVENTIONS WHICH ARE THE SUBJECT OF PENDING PATENT
APPLICATIONS ARE PATENTABLE AND, IF SO, TO WHAT EXTENT PATENT PROTECTION
CAN BE GRANTED.
EXAMINERS ARE ASSIGNED TO WORK IN VARIOUS "EXAMINING GROUPS" OR "ART
UNITS," EACH OF WHICH IS CONCERNED WITH PARTICULAR RELATED AREAS OF
TECHNOLOGY OR "ARTS." EXAMINERS IN EACH OF THE RESPECTIVE GROUPS EXAMINE
PATENT APPLICATIONS INVOLVING THE ARTS WITH WHICH THEIR ASSIGNED GROUP
IS CONCERNED.
CURRENTLY, EXAMINING GROUPS ARE SUBJECT TO PRODUCTION "GOALS" OR
"EXPECTANCIES," ASSIGNED BY THE PATENT OFFICE, WHICH ESTABLISH THE
AVERAGE TIMES WHICH EXAMINERS SHOULD TAKE TO PROCESS A PATENT
APPLICATION IN EACH OF THE VARIOUS ARTS. INDIVIDUAL GOALS ARE ALSO
ASSIGNED TO THE EXAMINERS WITHIN EACH GROUP BASED UPON EXPERIENCE, GRADE
LEVEL AND OTHER FACTORS REFLECTING INDIVIDUAL CAPABILITIES.
IN THIS REGARD, WHILE THE UNION AND THE AGENCY APPARENTLY AGREE THAT
ARTS VARY AS TO THEIR RELATIVE COMPLEXITY AND THAT THE GOALS ASSIGNED
SHOULD THEREFORE ALSO VARY FROM ART TO ART, THEY DISAGREE WITH RESPECT
TO THE ACCURACY AND EQUITY OF THE PARTICULAR GOALS WHICH ARE ASSIGNED TO
GROUPS AND INDIVIDUALS AS A RESULT OF THE APPLICATION OF THE CURRENTLY
EFFECTIVE GOAL ASSIGNMENT PROCESS. FURTHER, IN THIS REGARD, THE UNION
CLAIMS IN EFFECT THAT, WHILE THE EXISTING SYSTEM FOR ALLOCATING GOALS TO
EXAMINING GROUPS IS BASED UPON MANAGEMENT'S DETERMINATION OF RELATIVE
COMPEXITY AMONG THE VARIOUS ARTS, THIS DETERMINATION IS "INACCURATE" AND
RESULTS IN "SEVERE INEQUITIES"; AND THAT "WIDELY DIFFERENT GOALS ARE
ASSIGNED TO EXAMINERS WHO WORK IN CLOSELY RELATED ARTS YET ARE ASSIGNED
TO DIFFERENT GROUPS."
THUS, THE STATED OBJECTIVE OF THE UNION IN PROPOSING THE PROVISIONS
HERE IN DISPUTE IS TO BRING "EQUITY AND REASONABLENESS" TO THE PROCESS
OF SETTING AND APPLYING GROUP AND INDIVIDUAL PRODUCTION GOALS BECAUSE,
IN ITS VIEW, "THE ACHIEVED PRODUCTION OF AN EXAMINER IN RELATION TO
(HIS) ASSIGNED GOAL IS THE ALL-PERVASIVE DETERMINANT THAT IS USED (BY
MANAGEMENT) FOR MAKING ALL JUDGMENTS RELATING TO THE MERITS OF AN
EXAMINER."
THIS CASE INVOLVES, IN ESSENCE, THE EXTENT OF THE AGENCY'S OBLIGATION
TO BARGAIN WITH THE UNION CONCERNING (1) THE METHOD OF SETTING
PRODUCTION GOALS TO BE USED IN CONNECTION WITH EVALUATING THE
PERFORMANCE OF THE AGENCY'S PATENT EXAMINERS AND, (2) THE DESIGNATION OF
VARIOUS PARTICULAR LEVELS OF INDIVIDUAL PRODUCTION ACHIEVED IN RELATION
TO SUCH GOALS AS PRIMA FACIE EVIDENCE THAT AN INDIVIDUAL PATENT EXAMINER
HAS MET A STANDARD OF PRODUCTIVITY SUFFICIENT, IN REGARD TO THAT ASPECT
OF PERFORMANCE, TO WARRANT, RESPECTIVELY; A PROMOTION, A WITHIN-GRADE
INCREASE, RETENTION IN GRADE OR THE GRANT OF A SPECIAL ACHIEVEMENT AWARD
OR QUALITY STEP INCREASE.
AS TO (1) ABOVE, THE AGENCY DETERMINED PRINCIPALLY THAT PARTS "A"
THROUGH "H" OF THE UNION'S PROPOSAL SET OUT A FORMULA FOR DETERMINING
GROUP AND INDIVIDUAL EXAMINER PRODUCTION GOALS WHICH, IF GIVEN EFFECT,
WOULD VIOLATE SECTION 12(B)(1), (2), (4) AND (5) OF THE ORDER; AND THAT
PART "K" WOULD VIOLATE SECTION 12(B)(2).
AS TO (2), THE AGENCY DETERMINED, IN EFFECT, THAT PART "J.1-4" OF THE
PROPOSAL "EQUATES ACHIEVEMENT" OF THE PARTICULAR LEVELS OF PRODUCTION
THEREIN SPECIFIED WITH "SATISFACTORY," "SUFFICIENTLY EXCEPTIONAL" OR
"OUTSTANDING" PERFORMANCE FOR PURPOSES OF PROMOTIONS, WITHIN-GRADE
SALARY INCREASES, JOB RETENTION, SPECIAL ACHIEVEMENT AWARDS AND QUALITY
SALARY INCREASES, AND THEREBY CONFLICTS WITH VARIOUS PUBLISHED AGENCY
REGULATIONS AND A PROVISION OF THE FEDERAL PERSONNEL MANUAL.
THE GROUNDS UPON WHICH THE AGENCY BASED ITS DETERMINATION OF
NONNEGOTIABILITY WILL BE CONSIDERED SEPARATELY BELOW.
1. ARE PARTS "A" THROUGH "H" OR PART "K" OF THE UNION'S PROPOSAL
NONNEGOTIABLE UNDER SECTION 12(B) OF THE ORDER? /3/ AS ALREADY
INDICATED, THE AGENCY HEAD DETERMINED THAT PARTS "A" THROUGH "H" OF THE
PROPOSAL CONFLICT WITH RIGHTS EXPRESSLY RESERVED TO MANAGEMENT UNDER
SECTION 12(B)(1), (2), (4) AND (5) OF THE ORDER. WITH RESPECT TO THESE
PROVISIONS OF SECTION 12(B) UPON WHICH IT RELIES THE AGENCY CLAIMS THAT
AN "INHERENT AND NECESSARY PART OF EACH OF THESE RIGHTS RESPECTIVELY AND
ALL OF THEM COLLECTIVELY IS TO DETERMINE HOW MUCH WORK IS TO BE ASSIGNED
TO AND EXPECTED OF EMPLOYEES."
IN THIS REGARD, THE AGENCY PRINCIPALLY ARGUES THAT PARTS "A" THROUGH
"H" OF THE PROPOSAL ARE CONCERNED WITH AND WOULD IMPROPERLY LIMIT
MANAGEMENT'S DISCRETION AS TO "WHAT WORK WILL BE DONE, HOW IT WILL BE
DONE, AND BY WHOM IT WILL BE DONE . . . "; AND, WOULD "EFFECTIVELY
PREVENT MANAGEMENT FROM MAKING MEANINGFUL CHANGES IN WORK ASSIGNMENT
PROCEDURES AND PROCESSES," AS WELL AS CHANGES IN EXAMINING PRACTICES TO
INCREASE PRODUCTIVITY. FURTHER IN THIS REGARD, THE AGENCY ARGUES THAT
APPLICATION OF THE PROPOSED FORMULA WOULD SET AN "ABSOLUTE LIMIT OR
CEILING ON PRODUCTIVITY WITHIN THE EXAMINING GROUP," THEREBY, IN EFFECT,
IMPROPERLY NEGATING MANAGEMENT'S DISCRETION IN THE EXERCISE OF ITS
"RIGHT TO ASSIGN WORK TO EMPLOYEES."
THE UNION, ON THE OTHER HAND, CONTENDS PRINCIPALLY THAT PARTS "A"
THROUGH "H" OF ITS PROPOSAL MERELY PROVIDE A "UNIFORM PROCEDURE FOR
ASSIGNING GOALS" THROUGHOUT THE EXAMINING CORPS; AND, ARE NOT INTENDED
TO LIMIT IN ANY MANNER THE "TYPE OR AMOUNT OF WORK WHICH WILL BE
ASSIGNED" TO EMPLOYEES; "WHAT WORK WILL BE DONE, HOW IT WILL BE OR BY
WHOM IT WILL BE DONE"; OR THE "PROCEDURES AND PROCESSES THAT MAY BE
USED IN DISTRIBUTING WORK AMONG THOSE AVAILABLE TO PERFORM IT."
SECTION 12(B) OF THE ORDER PROVIDES IN RELEVANT PART THAT:
SEC. 12. BASIC PROVISIONS OF AGREEMENTS. EACH AGREEMENT BETWEEN AN
AGENCY AND A LABOR
ORGANIZATION IS SUBJECT TO THE FOLLOWING REQUIREMENTS--
(B) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN
ACCORDANCE WITH APPLICABLE LAWS
AND REGULATIONS--
(1) TO DIRECT EMPLOYEES OF THE AGENCY:
(2) TO HIRE, PROMOTE, TRANSFER, ASSIGN, AND RETAIN EMPLOYEES IN
POSITIONS WITHIN THE
AGENCY, AND TO SUSPEND, DEMOTE, DISCHARGE, OR TAKE OTHER DISCIPLINARY
ACTION AGAINST
EMPLOYEES;
(4) TO MAINTAIN THE EFFICIENCY OF THE GOVERNMENT OPERATIONS ENTRUSTED
TO THEM;
(5) TO DETERMINE THE METHODS, MEANS, AND PERSONNEL BY WHICH SUCH
OPERATIONS ARE TO BE
CONDUCTED . . .
THE RIGHTS ESTABLISHED BY SECTION 12(B) EXPRESSLY ARE RESERVED TO
MANAGEMENT OFFICIALS UNDER ANY BARGAINING AGREEMENT. WITH REGARD TO
PARTS "A" THROUGH "H" OF THE UNION'S PROPOSALS, THEN, THE QUESTION
BEFORE US IS WHETHER THEY VIOLATE RIGHTS RESERVED TO MANAGEMENT
OFFICIALS UNDER SECTION 12(B) AS CONTENDED BY THE AGENCY AND ARE
THEREFORE NONNEGOTIABLE. IN OUR OPINION THE PROVISIONS IN QUESTION DO
NOT VIOLATE MANAGEMENT'S RESERVED AUTHORITY TO DECIDE AND ACT WITH
RESPECT TO MATTERS COVERED UNDER SECTION 12(B) OF THE ORDER.
PARTS "A" THROUGH "H" OF THE UNION'S PROPOSAL SET OUT A FORMULA USING
HISTORICAL AND CURRENT DATA WITH REGARD TO ASSIGNED "SUPERVISORY
FACTORS," /4/ BALANCED CASE DISPOSALS, THE TOTAL NUMBER OF EXAMINING
HOURS ACTUALLY WORKED BY EACH EXAMINING GROUP AND ASSIGNED GOALS
(INDIVIDUAL AND GROUP EXPRESSED AS HOURS PER BALANCED CASE DISPOSAL) TO
ARRIVE AN AN "AVERAGE HISTORICAL COMPLEXITY FACTOR" /5/ AND AN "AVERAGE
INDIVIDUAL (CURRENT) COMPLEXITY FACTOR" /6/ FOR EACH EXAMINING GROUP.
PART "H" THEN DIRECTS THAT ADJUSTMENTS BE MADE IN EACH EXAMINER'S
CURRENTLY ASSIGNED GOALS SO THAT THE RECOMPUTED "AVERAGE INDIVIDUAL
COMPLEXITY FACTOR" FOR EACH EXAMINING GROUP WILL EQUAL OR EXCEED THE
"AVERAGE HISTORICAL COMPLEXITY FACTOR" FOR EACH SUCH GROUP; OR, IN
OTHER WORDS, SO THAT THE EXAMINERS IN THE GROUP WILL NOT BE ASSIGNED (ON
THE AVERAGE) HOUR GOALS WHICH WOULD REQUIRE THEM TO COMPLETE THE
EXAMINATION OF A TYPICAL PATENT APPLICATION IN FEWER HOURS THAN WERE
TAKEN TO COMPLETE SIMILAR APPLICATIONS IN THE BASE PERIOD.
THE PURPOSE OF THESE PROPOSED PROVISIONS ACCORDING TO THE UNION, AS
ALREADY INDICATED, IS TO REMEDY ALLEGED UNREASONABLENESS AND INEQUITIES
UNDER THE PRESENTLY EXISTING GOAL ASSIGNMENT PROCESS, IN CONNECTION WITH
THE USE OF THESE GOALS BY MANAGEMENT TO EVALUATE INDIVIDUAL EXAMINERS
FOR PURPOSES OF DECIDING WHICH EMPLOYEES TO RETAIN, PROMOTE, DETAIL,
REWARD, ETC.
IN OUR VIEW, THE LANGUAGE OF THE PROPOSED PROVISIONS "A" THROUGH "H",
AS WELL AS THE UNION'S ;INDICATION AS TO THE INTENT AND PURPOSE OF THOSE
PROVISIONS, DO NOT SUPPORT THE AGENCY'S CONTENTIONS THAT THE PROVISIONS
VIOLATE MANAGEMENT'S RESERVED RIGHTS UNDER SECTION 12(B) OF THE ORDER.
THAT IS TO SAY, BASED UPON THE RECORD IN THIS CASE, THE ESSENCE OF THE
PROPOSED PARTS "A" THROUGH "H" MERELY IS TO ENSURE THAT THE PRODUCTION
GOALS AGAINST WHICH MANAGEMENT WILL EVALUATE INDIVIDUAL PRODUCTIVITY (AS
ONE FACTOR IN ASSESSING OVERALL PERFORMANCE OF PATENT EXAMINERS) WILL BE
ASSIGNED IN A MANNER CONSISTENT WITH WHAT IS, IN THE UNION'S VIEW, A
STATISTICALLY RELIABLE CALCULATION (BASED UPON HISTORICAL PRODUCTION
DATA ADJUSTED FOR CHANGED CURRENT CONDITIONS) WHICH INDICATES HOW MUCH
PRODUCTION CAN REASONABLY AND EQUITABLY BE EXPECTED TO BE ACHIEVED. ON
THE OTHER HAND, IT IS CLEAR THAT THESE PROPOSED PROVISIONS DO NOT
REQUIRE AND ARE NOT INTENDED TO REQUIRE THE AGENCY TO BARGAIN WITH
RESPECT TO DIRECTING ITS EMPLOYEES, ASSIGNING THEM TO POSITIONS WITHIN
THE AGENCY, MAINTAINING THE EFFICIENCY OF ITS OPERATIONS, OR DETERMINING
THE METHODS, MEANS AND PERSONNEL BY WHICH SUCH OPERATIONS ARE TO BE
CONDUCTED, WITHIN THE MEANING OF SECTION 12(B) OF THE ORDER.
THUS, THE COUNCIL FINDS THAT THE PROVISIONS OF THE PROPOSAL IN
QUESTION NEITHER PURPORT BY THEIR LANGUAGE TO LIMIT, NOR ARE INTENDED TO
LIMIT, THE AMOUNT OR TYPE OF WORK WHICH MANAGEMENT MIGHT ASSIGN TO
INDIVIDUAL EXAMINERS OR EXAMINING GROUPS. LIKEWISE, NEITHER THE
LANGUAGE NOR INTENT OF THE PROVISIONS PRESCRIBE HOW SUCH WORK WILL BE
DISTRIBUTED BY MANAGEMENT AMONG THOSE INDIVIDUALS OR GROUPS WHICH
MANAGEMENT DETERMINES ARE AVAILABLE TO PERFORM IT. FURTHER, THE
PROVISIONS DO NOT BY THEIR LANGUAGE OR INTENT RELATE IN ANY WAY TO
MANAGEMENT'S DETERMINATION OF THE METHODS OR MEANS BY WHICH ITS
DIRECTIONS AND THE OPERATIONS OF THE AGENCY WILL BE CARRIED OUT.
RATHER, THE PROVISIONS ARE CONCERNED WITH PRODUCTION EXPECTATIONS
INSOFAR AS THEY MAY ULTIMATELY RELATE TO THE PERFORMANCE EVALUATION OF
INDIVIDUAL EXAMINERS, I.E., THE INDIVIDUAL'S PROSPECTS FOR BEING
FAVORABLY EVALUATED IN RELATION TO HIS ASSIGNED PRODUCTION GOAL.
MOREOVER, IN OUR OPINION, THE AGENCY HAS FAILED TO DEMONSTRATE THAT
THESE PROPOSED PROVISIONS WOULD NECESSARILY PREVENT MANAGEMENT, AS IT
ALLEGES, FROM MAKING "MEANINGFUL CHANGES IN WORK ASSIGNMENT PROCEDURES
AND PROCESSES" TO INCREASE EFFICIENCY OR, AS A GENERAL MATTER, TO
MAINTAIN THE EFFICIENCY OF ITS OPERATIONS UNDER SECTION 12(B)(4) OF THE
ORDER. IN THIS REGARD, MANAGEMENT'S CONCERN THAT PRODUCTIVITY GOALS
WHICH WOULD BE ESTABLISHED BY THE PROPOSED PROVISIONS WOULD TEND TO
LIMIT THE EFFECTIVE IMPLEMENTATION OF HYPOTHETICAL, PROSPECTIVE CHANGES
IN PATENT EXAMINATION PROCEDURES AND PROCESSES, WHILE CONCEIVABLY A
VALID CONCERN, IS NOT A REASON WHICH WOULD PREVENT NEGOTIATION OF THE
PROVISIONS UNDER THE ORDER. THE OBLIGATION TO NEGOTIATE DOES NOT IMPLY
A CONCOMITANT OBLIGATION TO AGREE TO A PROPOSAL. FURTHERMORE, IF THE
AGENCY ANTICIPATES A SITUATION ARISING WHERE FUTURE CHANGES IN
CIRCUMSTANCES DURING THE TERM OF THE AGREEMENT MAY RENDER INAPPROPRIATE
ANY OF THE PROVISIONS THEREOF, IT CAN SEEK, FOR EXAMPLE, TO NEGOTIATE
THE RIGHT TO MAKE ADJUSTMENTS DURING THE TERM OF THE AGREEMENT OR TO
NEGOTIATE A REOPENER CLAUSE WITH RESPECT TO SUCH PROVISIONS. HOWEVER,
AS WE STATED IN OUR LITTLE ROCK DECISION, /7/ "SECTION 12(B)(4) MAY NOT
BE INVOKED TO DENY NEGOTIATIONS UNLESS THERE IS A SUBSTANTIAL
DEMONSTRATION BY THE AGENCY THAT INCREASED COSTS OR REDUCED
EFFECTIVENESS IN OPERATIONS ARE INESCAPABLE AND SIGNIFICANT AND ARE NOT
OFFSET BY COMPENSATING BENEFITS."
FINALLY, WE FIND NO MERIT IN THE AGENCY'S ARGUMENT EQUATING THE
PRODUCTION GOALS WHICH ARE THE SUBJECT OF PARTS "A" THROUGH "H" OF THE
PROPOSAL WITH "AN ABSOLUTE LIMIT OR CEILING ON PRODUCTIVITY . . . " IN
OUR VIEW IT IS QUITE CLEAR THAT SUCH A MEANING CANNOT FAIRLY BE ASCRIBED
EITHER TO THE LITERAL MEANING OF THE LANGUAGE OF THE PROPOSED PROVISIONS
OR TO THE STATED INTENT OF THE UNION AS TO THEIR MEANING (WHICH, AS
PREVIOUSLY INDICATED IS TO PROVIDE IN EFFECT A "YARD STICK" FOR WORK
MEASUREMENT, NOT A LIMITATION ON PRODUCTION).
ACCORDINGLY, BASED ON THE FOREGOING, THE COUNCIL CONCLUDES, CONTRARY
TO THE AGENCY DETERMINATION, THAT SECTION 12(B) DOES NOT BAR NEGOTIATION
OF PARTS "A" THROUGH "H" OF THE PROPOSAL.
AS TO PART "K" OF THE PROPOSAL, IT PROVIDES THAT, "NO EXAMINER SHALL
BE ASSIGNED A GOAL THAT IS UNRELATED TO HIS ACTUAL EXAMINING TIME." AS
ALREADY INDICATED, THE AGENCY DETERMINED THAT PART "K" VIOLATES SECTION
12(B)(2) OF THE ORDER BY, IN EFFECT, REMOVING MANAGEMENT'S RIGHT TO
ASSIGN DUTIES AND WORK TO EMPLOYEES TO ACCOMPLISH THESE DUTIES." THE
UNION CONTENDS THAT THE PROPOSED PROVISION, ITSELF, CONTAINS NO
LIMITATION ON WHAT DUTIES OR WORK MAY BE ASSIGNED TO AN EXAMINER; AND
THAT THE INTENDED EFFECT OF THE PROVISION MERELY IS THAT "AN EXAMINER
WILL NOT BE RATED UNSATISFACTORY FOR FAILING TO ACHIEVE AN EXAMINING
GOAL WHEN THE EXAMINER IS DIRECTED OR AUTHORIZED TO SPEND HIS TIME
PERFORMING NONEXAMINING DUTIES."
WITHOUT PASSING ON WHETHER SECTION 12(B)(2) RESERVES TO MANAGEMENT A
RIGHT "TO ASSIGN DUTIES AND WORK TO EMPLOYEES" AS CLAIMED BY THE AGENCY,
IN OUR VIEW, PART "K" OF THE UNION'S PROPOSAL DOES NOT IN ANY WAY LIMIT
THE ASSIGNMENT OF DUTIES OR OF WORK. ON ITS FACE, IT CONCERNS ONLY THE
RELATIONSHIP BETWEEN THE ASSIGNMENT OF GOALS (NOT OF DUTIES OR WORK) AND
AS EXPLAINED BY THE UNION, IT SIMPLY WOULD PRECLUDE MANAGEMENT FROM
RATING AN EXAMINER'S PRODUCTIVITY IN CONNECTION WITH THE EXAMINATION OF
PATENT APPLICATIONS WITHOUT TAKING INTO CONSIDERATION THE AMOUNT OF TIME
AFFORDED TO THE EXAMINER BY MANAGEMENT, OUT OF HIS TOTAL WORK TIME, IN
WHICH TO ENGAGE IN SUCH PRODUCTION. THUS, UNDER PART "K" MANAGEMENT
WOULD NOT BE PREVENTED FROM ASSIGNING EXAMINATION, OR ANY OTHER, DUTIES
OR WORK TO PATENT EXAMINERS. PART "K" WOULD ONLY REQUIRE THAT, E.G., IF
MANAGEMENT SHOULD DIRECT OR AUTHORIZE AN EXAMINER TO SPEND LESS THAN
FULL-TIME EXAMINING PATENT APPLICATIONS, THE EXAMINER'S PRODUCTION IN
THIS REGARD WILL NOT BE EVALUATED IN RELATION TO A GOAL WHICH
PRESUPPOSES FULL-TIME PERFORMANCE OF PATENT EXAMINATION DUTIES.
ACCORDINGLY, WE FIND THE AGENCY CONTENTION THAT SECTION 12(B)(2) BARS
NEGOTIATION ON PART "K" OF THE UNION'S PROPOSAL TO BE WITHOUT MERIT.
2. IS PART "J" OF THE UNION'S PROPOSAL RENDERED NONNEGOTIABLE UNDER
SECTION 11(A) OF THE ORDER BY APPLICABLE REGULATIONS? AS PREVIOUSLY
INDICATED THE AGENCY DETERMINED THAT PART "J" OF THE PROPOSAL IS
NONNEGOTIABLE BECAUSE IT CONFLICTS WITH APPLICABLE REGULATIONS, IN
PARTICULAR, VARIOUS PUBLISHED DEPARTMENT OF COMMERCE DIRECTIVES /8/ AND
A PROVISION OF THE FEDERAL PERSONNEL MANUAL (FPM). /9/
IN DETERMINING THAT PART "J" VIOLATES AGENCY REGULATIONS AND THE FPM,
THE AGENCY HEAD STATED THAT THE PROPOSAL:
. . . EQUATES ACHIEVEMENT OF THE STATISTICALLY ARRIVED AT GOAL WITH
"SATISFACTORY
PERFORMANCE" FOR PURPOSES OF PROMOTION . . . THE GRANT OF A
WITHIN-GRADE SALARY INCREASE
. . . JOB RETENTION . . . (AND) EQUATES 110 PERCENT OF GOAL
ACHIEVEMENT FOR A SIX (6) MONTHS
PERIOD WITH "SUFFICIENTLY EXCEPTIONAL PERFORMANCE" TO JUSTIFY A
SPECIAL ACHIEVEMENT AWARD, AND
FOR 12 MONTHS . . . OF OUTSTANDING PERFORMANCE WARRANTING THE AWARD
OF A QUALITY STEP
INCREASE. (EMPHASIS SUPPLIED.)
IN HIS DETERMINATION, QUOTED IN PART ABOVE, THE AGENCY HEAD STATES IN
SUBSTANCE THAT PART "J" OF THE UNION'S PROPOSAL DEFINES "PERFORMANCE"
SOLELY IN TERMS OF PRODUCTIVITY AND THUS MAKES PRODUCTIVITY THE SOLE,
DETERMINATIVE FACTOR WITH REGARD TO PROMOTIONS, WITHIN GRADE SALARY
INCREASES, JOB RETENTION, SPECIAL ACHIEVEMENT AWARDS AND QUALITY SALARY
INCREASES. THIS CHARACTERIZATION IS AMPLIFIED BY SUCH ADDITIONAL
STATEMENTS IN THE DETERMINATION WITH REGARD TO PART "J" AS THAT IT:
"(I)GNORES THOSE FACTORS, OTHER THAN PRODUCTIVITY" WHICH ARE
CONTEMPLATED IN AGENCY REGULATIONS CONCERNING PROMOTION ACTIONS;
"EQUATES PRODUCTIVITY WITH THE TOTALITY OF EVALUATING CANDIDATES FOR
PROMOTION" IN CONFLICT WITH THE FPM; CONFLICTS WITH AGENCY REGULATIONS
WHICH DEFINE PERFORMANCE "TO INCLUDE NOT ONLY REQUIREMENTS RELATING TO
PERFORMANCE OF SPECIFIC OPERATIONAL DUTIES AND RESPONSIBILITIES OF THE
POSITION BUT ALSO REQUIREMENTS AS TO JOB RELATED CONDUCT AND CHARACTER";
CONFLICTS WITH AGENCY REGULATIONS "WHEREIN QUALITY OF WORK IS AN
ELEMENT TO BE CONSIDERED IN DETERMINING ACCEPTANCE LEVEL OF COMPETENCE";
AND CONFLICTS WITH AGENCY REGULATIONS MAKING THE SUPERVISOR OF AN
EMPLOYEE RESPONSIBLE FOR DETERMINING THE "PERTINENT AND IMPORTANT
ELEMENTS FOR EACH KIND AND FACTOR OF WORK UNDER HIS JURISDICTION"
BECAUSE THE PROPOSAL WOULD NEGATE THIS AUTHORITY BY "DEFINING
'SATISFACTORY PERFORMANCE' AS NOTHING MORE NOR LESS THAN ACHIEVING THE
STATISTICAL GOAL ARRIVED AT BY APPLICATION OF THE PROPOSED FORMULA."
SECTION 11(C)(3) OF THE ORDER PROVIDES THAT, "AN AGENCY HEAD'S
DETERMINATION AS TO THE INTERPRETATION OF THE AGENCY'S REGULATIONS WITH
RESPECT TO A PROPOSAL IS FINAL . . . " HENCE, THE COUNCIL MAY NOT
SUBSTITUTE ITS INTERPRETATION OF SUCH REGULATIONS FOR THE INTERPRETATION
OF THE AGENCY HEAD. HOWEVER, THE UNION IN EFFECT ARGUES, AMONG OTHER
THINGS, THAT THE AGENCY MISINTERPRETED THE PROPOSAL AND, THEREFORE, THAT
THE AGENCY REGULATIONS, AS INTERPRETED BY THE AGENCY HEAD, DO NOT BAR
NEGOTIATIONS UNDER SECTION 11(A) OF THE ORDER. /10/ IN THE
CIRCUMSTANCES OF THIS CASE, WE FIND THIS UNION ARGUMENT TO BE
PERSUASIVE.
HENCE, FROM THE ABOVE-QUOTED LANGUAGE OF THE AGENCY DETERMINATION
THAT PART "J" VIOLATES AGENCY REGULATIONS AND THE FPM, IT IS CLEAR THAT
THE AGENCY HEAD RELIED ON A CHARACTERIZATION OF PART "J" WHICH WOULD
REQUIRE MANAGEMENT, WHEN EVALUATING THE PERFORMANCE OF PATENT EXAMINERS,
TO IGNORE FACTORS OTHER THAN "PRODUCTIVITY" OR "ACHIEVING THE
STATISTICAL GOAL." FURTHER, UNDER THE AGENCY'S CHARACTERIZATION OF PART
"J", MANAGEMENT EVIDENTLY WOULD BE REQUIRED TO CARRY OUT THE PERSONNEL
ACTIONS MENTIONED IN THE PROPOSAL SOLELY BASED UPON AN EXAMINER'S HAVING
ACHIEVED THE QUANTITATIVE LEVEL OF PRODUCTION SPECIFIED IN THE PROPOSAL.
HOWEVER, WE DO NOT FIND THESE CHARACTERISTICS TO BE PRESENT IN PART
"J". THE RECORD ESTABLISHES IN THIS REGARD THAT PART "J" MERELY RELATES
TO THE QUANTITATIVE ASPECT OF OVERALL PERFORMANCE. THAT IS, AS
EXPRESSLY INDICATED BY THE UNION, THE PROPOSAL IS CONCERNED ONLY WITH
"HOW MUCH PRODUCTION IS SUFFICIENT FOR VARIOUS PURPOSES . . . NOT . . .
WITH ANY OTHER ASPECTS OF PERFORMANCE SUCH AS THE QUALITY OF WORK
PRODUCED OR THE PERSONAL CONDUCT OF EMPLOYEES." MOREOVER, PART "J" WOULD
REQUIRE ONLY THAT ATTAINMENT OF THE PARTICULAR LEVELS OF PRODUCTION
SPECIFIED IN THE PROPOSAL PROVISIONS, RELATIVE TO THE ASSIGNED GOAL, BE
DEEMED "PRIMA FACIE EVIDENCE," I.E., EVIDENCE SUFFICIENT UNLESS
REBUTTED, OF "SATISFACTORY," "SUFFICIENTLY EXCEPTIONAL," OR
"OUTSTANDING" PERFORMANCE WITH RESPECT TO THE "PRODUCTION" ASPECT OF
OVERALL PERFORMANCE FOR PURPOSES OF THE PERSONNEL ACTION INVOLVED.
THUS, NOTHING IN THE LANGUAGE OF PART "J", OR IN THE INTERPRETATION
OF THAT LANGUAGE BY THE UNION, WOULD REQUIRE MANAGEMENT TO PROMOTE OR
GRANT A WITHIN-GRADE INCREASE TO AN EXAMINER, OR TO RETAIN HIM ON THE
JOB SIMPLY BECAUSE THE EXAMINER ACHIEVES THE LEVELS OF PRODUCTION WHICH
PART "J" DESIGNATES AS "PRIMA FACIE EVIDENCE OF SATISFACTORY PERFORMANCE
FOR THE PURPOSES" OF SUCH ACTIONS. LIKEWISE, ACHIEVEMENT BY AN EXAMINER
OF THE LEVELS OF PRODUCTION WHICH PART "J" DESIGNATES AS "PRIMA FACIE
EVIDENCE OF SUFFICIENTLY EXCEPTIONAL PERFORMANCE TO WARRANT THE GRANT OF
A SPECIAL ACHIEVEMENT AWARD," OR "SUFFICIENTLY OUTSTANDING PERFORMANCE
TO WARRANT THE GRANT OF A QUALITY STEP INCREASE" WOULD NOT, IN ITSELF,
MANDATE THE GRANTING OF SUCH AWARDS BY MANAGEMENT. ON THE CONTRARY,
MANAGEMENT WOULD RETAIN FULL DISCRETION WITH REGARD TO ITS EVALUATION OF
ALL FACETS OF EXAMINER PERFORMANCE OTHER THAN QUANTITY PRODUCED, AS WELL
AS TO REBUT, WHERE APPROPRIATE, WHAT THE PROPOSAL WOULD REQUIRE TO BE
DEEMED "PRIMA FACIE EVIDENCE" BASED ON QUANTITY. /11/
ACCORDINGLY, IN VIEW OF THE ERRONEOUS CHARACTERIZATION BY THE AGENCY
OF PART "J" OF THE UNION'S PROPOSAL, AND UNDER THE PARTICULAR
CIRCUMSTANCES OF THIS CASE, THE AGENCY IN OUR OPINION HAS FAILED TO
ESTABLISH THAT ITS REGULATIONS OR THE FPM ARE APPLICABLE SO AS TO
PRECLUDE NEGOTIATION OF PART "J" UNDER SECTION 11(A) OF THE ORDER. /12/
FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2411.27 OF THE
COUNCIL'S RULES AND REGULATIONS, WE FIND THAT THE AGENCY HEAD'S
DETERMINATION THAT THE UNION PROPOSAL HERE INVOLVED IS NONNEGOTIABLE WAS
IMPROPER AND MUST BE SET ASIDE. THIS DECISION SHALL NOT BE CONSTRUED AS
EXPRESSING OR IMPLYING ANY OPINION OF THE COUNCIL AS TO THE MERITS OF
THE UNION PROPOSAL. WE DECIDE ONLY THAT, AS SUBMITTED BY THE UNION AND
BASED ON THE RECORD BEFORE THE COUNCIL, THE PROPOSAL IS PROPERLY SUBJECT
TO NEGOTIATION BY THE PARTIES CONCERNED UNDER SECTION 11(A) OF THE
ORDER.
BY THE COUNCIL.
ATTACHMENT:
APPENDIX
ISSUED: OCTOBER 3, 1975
ADD THE FOLLOWING TO ARTICLE XII, SECTION 2 OF OUR AGREEMENT:
INDIVIDUAL GOALS SHALL BE DETERMINED BY THE FOLLOWING METHOD
A. DEFINE A SUPERVISORY FACTOR S IN ACCORDANCE WITH THE CHART IN THE
OCTOBER 11, 1972 MEMORANDUM OF WILLIAM FELDMAN ENTITLED "INDIVIDUAL
EXAMINER EXPECTANCIES."
B. DETERMINE THE INDIVIDUAL SUPERVISORY FACTOR SI FOR EACH
INDIVIDUAL THAT WAS ON BOARD IN EACH EXAMINING GROUP AS OF THE LAST DAY
OF EACH OF THE FORTY QUARTERS FOR FISCAL YEARS 1963 THROUGH 1972.
C. CALCULATE AN AVERAGE HISTORICAL SUPERVISORY FACTOR SJ FOR EACH
GROUP FOR EACH QUARTER J BY SUMMING THE INDIVIDUAL SUPERVISORY FACTORS
SIJ DURING THE QUARTER J AND DIVIDING BY THE NUMBER NJ OF NONSUPERVISORY
EXAMINERS IN THE GROUP DURING THE QUARTER J, I.E. (EQUATION OMITTED)
IN THOSE GROUPS THAT HAVE UNDERGONE REORGANIZATION SINCE THE
BEGINNING OF FISCAL YEAR 1963, THE DETERMINATIONS TO BE MADE FOR THIS
SECTION AND THE FOLLOWING SECTIONS SHOULD BE MADE ON AN ART UNIT BASIS
WITH THE SUPERVISORY FACTORS DETERMINED FOR EACH ART UNIT OVER THE FORTY
QUARTER PERIOD BEING ASCRIBED TO THE GROUP IN WHICH THE ART UNIT WAS
ASSIGNED AT THE END OF FISCAL YEAR 1972.
D. DETERMINE THE TOTAL NUMBER OF BALANCED DISPOSALS DJ AND THE TOTAL
NUMBER OF EXAMINING HOURS HJ ACTUALLY ACHIEVED FOR EACH GROUP DURING
EACH QUARTER J DURING SAID FORTY QUARTER PERIOD.
E. CALCULATE FOR EACH GROUP THE AVERAGE HISTORICAL COMPLEXITY FACTOR
K WHICH IS THE ACTUALLY ACHIEVED HOURS PER BALANCED DISPOSAL ADJUSTED BY
THE SUPERVISORY FACTOR AND ADJUSTED BY THE FACTOR 0.9: (EQUATION
OMITTED)
F. DETERMINE THE ASSIGNED GOAL GI AND THE SUPERVISORY FACTOR SI FOR
EACH OF THE N EXAMINERS IN EACH GROUP AS OF A DATE ONE MONTH FROM THE
EFFECTIVE DATE OF THIS AGREEMENT.
G. DEFINE AN INDIVIDUAL'S COMPLEXITY FACTOR CI TO BE THE PRODUCT OF
HIS ASSIGNED GOAL AND HIS SUPERVISORY FACTOR (EQUATION OMITTED) AND
DEFINE THE AVERAGE INDIVIDUAL COMPLEXITY FACTOR CG FOR A GROUP OF N
EXAMINERS TO BE (EQUATION OMITTED)
H. IN ANY GROUP WHERE THE AVERAGE INDIVIDUAL COMPLEXITY FACTOR CG IS
NOT GREATER THAN OR EQUAL TO THE GROUP'S AVERAGE HISTORICAL COMPLEXITY
FACTOR K, THE ASSIGNED GOALS OF INDIVIDUAL EXAMINERS ARE TO BE ADJUSTED
UNTIL (EQUATION OMITTED)
THESE GOAL ADJUSTMENTS ARE TO BE MADE BY THE SUPERVISORY PRIMARY
EXAMINERS IN THE GROUP IN CONSULTATION WITH THE GROUP'S DIRECTOR AND THE
INDIVIDUAL EXAMINERS INVOLVED. THE OBJECTIVE OF THE GOAL ADJUSTMENTS
SHOULD BE TO MAKE THE GOAL DISTRIBUTION WITHIN THE GROUP MORE EQUITABLE
BY PROVIDING MORE TIME FOR THE EXAMINATION OF PATENT APPLICATIONS IN THE
MORE COMPLEX ARTS. THE AMOUNT OF TIME IN WHICH IT IS DESIRED THAT AN
EXAMINER COMPLETE THE EXAMINATION OF AN AVERAGE APPLICATION IN HIS
DOCKET SHALL NOT BE DECREASED AS A RESULT OF THIS AGREEMENT.
I. THE RAW DATA THAT HAS BEEN USED, THE INTERMEDIATE AND FINAL
RESULTS OF THE CALCULATIONS THAT HAVE BEEN MADE, AND THE RESULTS OF THE
GOAL DETERMINATIONS MADE IN ACCORDANCE WITH THIS SECTION ARE TO BE
REPORTED TO THE ASSOCIATION WITHIN TWO MONTHS OF THE DATE OF THIS
AGREEMENT.
J. A GOAL SHALL HAVE THE FOLLOWING MEANING AND EFFECT:
1. AN ACHIEVEMENT OF APPROXIMATELY 100% OF A GOAL SHALL BE DEEMED
PRIMA FACIE EVIDENCE OF
SATISFACTORY PERFORMANCE FOR THE PURPOSES OF PROMOTION AND THE
SIGNATORY AUTHORITY PROGRAM;
2. AN ACHIEVEMENT OF APPROXIMATELY 75% OF A GOAL SHALL BE DEEMED
PRIMA FACIE EVIDENCE OF
SATISFACTORY PERFORMANCE FOR THE GRANT OF A WITHIN GRADE INCREASE;
3. AN ACHIEVEMENT OF APPROXIMATELY 50% OF A GOAL SHALL BE DEEMED
PRIMA FACIE EVIDENCE OF
SUFFICIENTLY SATISFACTORY PERFORMANCE FOR THE PURPOSES OF RETENTION
ON THE JOB AT THE SAME
GRADE LEVEL;
4. AN ACHIEVEMENT OF APPROXIMATELY 110% OF A GOAL FOR SIX MONTHS
SHALL BE DEEMED PRIMA
FACIE EVIDENCE OF SUFFICIENTLY EXCEPTIONAL PERFORMANCE TO WARRANT THE
GRANT OF A SPECIAL
ACHIEVEMENT AWARD AND FOR TWELVE MONTHS SHALL BE DEEMED PRIMA FACIE
EVIDENCE OF SUFFICIENTLY
OUTSTANDING PERFORMANCE TO WARRANT THE GRANT OF A QUALITY STEP
INCREASE.
K. NO EXAMINER SHALL BE ASSIGNED A GOAL THAT IS UNRELATED TO HIS
ACTUAL EXAMINING TIME.
/1/ WHILE THE AGENCY HEAD'S DETERMINATION IN THIS CASE WAS MADE UNDER
E.O. 11491, AS AMENDED BY E.O. 11616 AND PRIOR TO THE RECENT AMENDMENT
BY E.O. 11838, THE ORDER WAS NOT CHANGED IN RESPECTS WHICH ARE MATERIAL
TO THE PRESENT CASE.
/2/ SECTION 2411.26 OF THE COUNCIL'S RULES OF PROCEDURE THEN IN
EFFECT PROVIDED (SUBSEQUENT CHANGES ARE NOT MATERIAL IN THE PRESENT
CASE):
SEC. 2411.26 REFERRAL BY THE FEDERAL SERVICE IMPASSES PANEL.
(A) NOTWITHSTANDING THE PROCEDURES OF THIS SUBPART, EXCEPT SEC.
2411.22, WHEN THE PANEL
FINDS THAT A NEGOTIABILITY ISSUE IS IMPEDING THE RESOLUTION OF A
NEGOTIATED IMPASSE, THE PANEL
MAY REFER THE NEGOTIABILITY ISSUE TO THE COUNCIL FOR DECISION.
(B) A REFERRAL BY THE PANEL SHALL CONTAIN:
(1) THE MATTER PROPOSED TO BE NEGOTIATED AS SUBMITTED TO THE AGENCY
HEAD FOR DETERMINATION;
(2) THE AGENCY HEAD'S DETERMINATION THEREON;
(3) STATEMENTS OF POSITION FROM EACH PARTY WITH SUPPORTING EVIDENCE
AND ARGUMENT; AND
(4) ANY OTHER APPROPRIATE DOCUMENTS OF RECORD.
(C) THE PANEL MAY REFER A NEGOTIABILITY ISSUE FOR DECISION BY THE
COUNCIL AT ANY TIME
DURING ITS CONSIDERATION OF A NEGOTIATION IMPASSE.
(D) THE COUNCIL WILL GIVE SUCH REFERRALS PRIORITY CONSIDERATION.
/3/ IN ITS STATEMENT OF POSITION, THE AGENCY ALSO CONTENDED THAT THE
PROPOSAL WOULD IN EFFECT REQUIRE THE AGENCY TO NEGOTIATE "APPROPRIATE
ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE IMPACT OF . . .
TECHNOLOGICAL CHANGE," A MATTER CLAIMED BY THE AGENCY TO BE EXCEPTED
FROM ITS BARGAINING OBLIGATION BY SECTION 11(B) OF THE ORDER. HOWEVER,
THE PROVISION OF SECTION 11(B) IN QUESTION DOES NOT EXCEPT SUCH
"APPROPRIATE ARRANGEMENTS" FROM THE OBLIGATION TO BARGAIN; SEE
TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL AND NAVAL
PUBLIC WORKS CENTER, NORFOLK, VIRGINIA, FLRC NO. 71A-56 (JUNE 29, 1973),
REPORT NO. 37. MOREOVER, THE AGENCY HEAD DID NOT RELY ON THESE GROUNDS
IN HIS DETERMINATION.
/4/ "SUPERVISORY FACTORS" ARE NUMERICAL RATINGS ASSIGNED TO EACH
PATENT EXAMINER WHICH REFLECT THE PERCENTAGE OF THE AGENCY'S NORM OF
PRODUCTION WHICH THE EXAMINER IS EXPECTED TO REACH GIVEN HIS EXPERIENCE
AND GRADE LEVEL. THEY RANGE FROM .55 FOR A GS-5 TO 1.50 FOR A GS-15
(WHO HAS BEEN ASSIGNED "PERSONAL SIGNATORY AUTHORITY" AND CATEGORIZED AS
AN EXPERT). THUS THE GS-15 ASSIGNED THE 1.50 SUPERVISORY FACTOR WOULD
BE EXPECTED TO DISPOSE OF PATENT APPLICATIONS AT A RATE ALMOST THREE
TIMES THAT OF A NEWLY HIRED GS-5 EXAMINER. THE FACTORS ARE CONSIDERED
SUPERVISORY GUIDES ONLY AND MAY BE ADJUSTED UPWARD OR DOWNWARD FOR
PARTICULAR EXAMINERS DEPENDING ON SUCH FACTORS AS THE DIFFICULTY LEVEL
OF HIS APPLICATION DOCKET, CHANGES IN EXAMINING TECHNIQUES, ETC.
/5/ THE "AVERAGE HISTORICAL COMPLEXITY FACTOR" ("K") FOR EACH
EXAMINING GROUP IS THE AVERAGE NUMBER OF HOURS ACTUALLY TAKEN BY THE
EXAMINERS ASSIGNED TO THE GROUP TO DISPOSE OF A TYPICAL PATENT
APPLICATION, ADJUSTED FOR THE AVERAGE LEVEL OF EXPERIENCE AND EXPERTISE
OF THE EXAMINERS ASSIGNED TO THE GROUP DURING THE BASE PERIOD CONCERNED
(AS REFLECTED BY THE AVERAGE OF THEIR ASSIGNED "SUPERVISORY FACTORS"
DURING THE SAME PERIOD) AND FOR AN ASSERTED INCREASE IN COMPLEXITY OF
CURRENT PATENT APPLICATIONS COMPARED TO APPLICATIONS PROCESSED DURING
THE BASE PERIOD.
/6/ THE "INDIVIDUAL COMPLEXITY FACTOR" ("C") REFLECTS THE AVERAGE
NUMBER OF HOURS THAT AN EXAMINER IN THE GROUP IS CURRENTLY EXPECTED TO
TAKE TO DISPOSE OF A TYPICAL PATENT APPLICATION, ADJUSTED FOR HIS LEVEL
OF EXPERIENCE AND EXPERTISE (AS REFLECTED IN HIS CURRENTLY ASSIGNED
"SUPERVISORY FACTOR"). THE "AVERAGE INDIVIDUAL COMPLEXITY FACTOR" ("C")
FOR AN EXAMINING GROUP IS MERELY THE SUM OF THE "INDIVIDUAL COMPLEXITY
FACTORS" IN THAT GROUP DIVIDED BY THE NUMBER OF PATENT EXAMINERS
ASSIGNED TO IT.
/7/ LOCAL UNION 2219, INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, AFL-CIO AND DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS, LITTLE
ROCK DISTRICT, LITTLE ROCK, ARK., FLRC NO. 71A-46 (NOVEMBER 20, 1973),
REPORT NO. 30.
/8/ DAO 202-250, APPENDIX A; DAO 202-335 SECTION 3.02.D.3; DAO
202-531 SECTIONS 7.02.B.1.(C)(1), 7.02.B.2(A)(1) AND (3),
7.02.B.2.(B)(1), AND 7.02.C.; DAO 220-430 SECTION 5.02.
/9/ FPM CHAPTER 335, SUBCHAPTER 2, REQUIREMENT 4 AND SUBCHAPTER
3-6.D.,F. AND G.
/10/ SECTION 11(A) PROVIDES IN PERTINENT PART THAT THE BARGAINING
OBLIGATION WITH RESPECT TO PERSONNEL POLICIES AND PRACTICES AND MATTERS
AFFECTING WORKING CONDITIONS IS LIMITED TO "SO FAR AS MAY BE APPROPRIATE
UNDER APPLICABLE LAWS AND REGULATIONS, INCLUDING POLICIES SET FORTH IN
THE FEDERAL PERSONNEL MANUAL; (AND) PUBLISHED AGENCY POLICIES AND
REGULATIONS . . . "
/11/ IN ITS STATEMENT OF POSITION THE AGENCY CONTENDED THAT THE
PROPOSAL IN EFFECT MAKES THE UNION "A PARTNER WITH MANAGEMENT IN
EVALUATING EMPLOYEE PERFORMANCE" AND, THEREBY, VIOLATES CERTAIN RIGHTS
CLAIMED TO BE RESERVED TO MANAGEMENT UNDER SECTION 12(B) OF THE ORDER.
HOWEVER, IN VIEW OF THE AGENCY'S ERRONEOUS INTERPRETATION OF THE
PROPOSAL AND OUR FINDING HEREIN TO THE EFFECT THAT THE PROPOSAL,
PROPERLY CHARACTERIZED, MERELY RELATES IN AN ESSENTIALLY NONCONTROLLING
MANNER TO ONE ASPECT OF THE OVERALL PROCESS BY WHICH MANAGEMENT
EVALUATES EMPLOYEE PERFORMANCE, WE FIND THIS CONTENTION TO BE WITHOUT
MERIT. CF. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 997 AND
VETERANS ADMINISTRATION HOSPITAL, MONTGOMERY, ALABAMA, FLRC NO. 73A-22
(JANUARY 31, 1974), REPORT NO. 48.
/12/ CF. VETERANS ADMINISTRATION INDEPENDENT SERVICE EMPLOYEES UNION
AND VETERANS ADMINISTRATION RESEARCH HOSPITAL, CHICAGO, ILLINOIS, FLRC
NO. 71A-31 (NOVEMBER 27, 1972), REPORT NO. 31.
3 FLRC 632; FLRC NO. 75A-83; SEPTEMBER 30, 1975.
MR. JOHN P. HELM, STAFF ATTORNEY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
1737 H STREET, NW.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 75A-83
VETERANS ADMINISTRATION HOSPITAL, NEW ORLEANS, LOUISIANA, ASSISTANT
SECRETARY CASE NO. 64-2464 (CA). THE ASSISTANT SECRETARY, IN AGREEMENT
WITH THE ASSISTANT REGIONAL DIRECTOR, FOUND THAT THERE WAS INSUFFICIENT
EVIDENCE TO ESTABLISH A REASONABLE BASIS FOR THE UNFAIR LABOR PRACTICE
COMPLAINT OF THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES (NFFE) WHICH
ALLEGED THAT THE ACTIVITY VIOLATED SECTION 19(A)(1), (2), (3) AND (5) OF
THE ORDER IN PERMITTING OR ALLOWING NONEMPLOYEE REPRESENTATIVES OF THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES TO CONDUCT ORGANIZATIONAL
DRIVES ON THE PREMISES OF THE ACTIVITY AMONG EMPLOYEES EXCLUSIVELY
REPRESENTED BY NFFE. NFFE APPEALED TO THE COUNCIL, CONTENDING THAT THE
DECISION OF THE ASSISTANT SECRETARY PRESENTS A MAJOR POLICY ISSUE.
COUNCIL ACTION (SEPTEMBER 30, 1975). THE COUNCIL HELD THAT NFFE'S
PETITION FAILED TO MEET THE REQUIREMENTS OF SECTION 2411.12 OF THE
COUNCIL'S RULES; THAT IS, THE DECISION DOES NOT PRESENT ANY MAJOR
POLICY ISSUE AND NFFE NEITHER ALLEGES, NOR DOES IT OTHERWISE APPEAR,
THAT THE DECISION IS IN ANY MANNER ARBITRARY AND CAPRICIOUS.
ACCORDINGLY, THE COUNCIL DENIED REVIEW OF NFFE'S APPEAL.
DEAR MR. HELM:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
IN THIS CASE, THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES (NFFE)
FILED AN UNFAIR LABOR PRACTICE COMPLAINT ALLEGING THAT THE VETERANS
ADMINISTRATION HOSPITAL, NEW ORLEANS, LOUISIANA (THE ACTIVITY) VIOLATED
SECTION 19(A)(1), (2), (3) AND (5) OF THE ORDER BY PERMITTING OR
ALLOWING NONEMPLOYEE REPRESENTATIVES OF THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES (AFGE) TO CONDUCT ORGANIZATIONAL DRIVES ON THE
PREMISES OF THE HOSPITAL AMONG EMPLOYEES EXCLUSIVELY REPRESENTED BY
LOCAL 169, NATIONAL FEDERATION OF FEDERAL EMPLOYEES. THE ASSISTANT
SECRETARY, IN AGREEMENT WITH THE ASSISTANT REGIONAL DIRECTOR (ARD),
NOTING THAT THERE WAS INSUFFICIENT EVIDENCE TO ESTABLISH A REASONABLE
BASIS FOR THE ALLEGATION THAT THE ACTIVITY ASSISTED OR ENCOURAGED AFGE
IN ITS ORGANIZING EFFORTS OR THAT THE ACTIVITY ACQUIESCED IN OR APPROVED
AFGE'S ALLEGED IMPROPER CONDUCT, DENIED NFFE'S REQUEST FOR REVIEW,
SEEKING REVERSAL OF THE ARD'S DISMISSAL OF THE COMPLAINT.
IN YOUR PETITION FOR REVIEW, YOU CONTEND THAT THE DECISION OF THE
ASSISTANT SECRETARY PRESENTS AS A MAJOR POLICY ISSUE: "WHETHER THE
FAILURE OF MANAGEMENT TO TAKE FORCEFUL AFFIRMATIVE ACTION TO PROHIBIT
THE ORGANIZING ACTIVITIES OF NONEMPLOYEE REPRESENTATIVES OF A
NONINCUMBENT LABOR ORGANIZATION ON THE ACTIVITY PREMISES DURING DUTY
HOURS WHERE THERE IS A RECOGNIZED EXCLUSIVE REPRESENTATIVE AND THE TWO
UNIONS ARE NOT IN EQUIVALENT STATUS CONSTITUTES A VIOLATION OF SECTION
19(A)(1), (2), (3) AND (5) OF EXECUTIVE ORDER 11491, AS AMENDED." IN
THIS CONNECTION, YOU ASSERT THAT THE ASSISTANT SECRETARY'S DECISION IS
INCONSISTENT WITH HIS DECISIONS IN PRIOR CASES WHEREIN AN AGENCY HAD
GRANTED "SERVICES AND FACILITIES" TO A LABOR ORGANIZATION WHICH HAD NOT
RAISED A QUESTION CONCERNING REPRESENTATION AND WHICH DID NOT HAVE
EQUIVALENT STATUS WITH AN INCUMBENT EXCLUSIVELY RECOGNIZED
REPRESENTATIVE.
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW DOES NOT MEET THE
REQUIREMENTS OF SECTION 2411.12 OF THE COUNCIL'S RULES. THAT IS, THE
DECISION OF THE ASSISTANT SECRETARY DOES NOT PRESENT ANY MAJOR POLICY
ISSUE AND YOU DO NOT ALLEGE, NOR DOES IT OTHERWISE APPEAR, THAT THE
DECISION IS IN ANY MANNER ARBITRARY AND CAPRICIOUS. WITH REGARD TO THE
ALLEGED MAJOR POLICY ISSUE, THE COUNCIL IS OF THE OPINION THAT IN THE
CIRCUMSTANCES PRESENTED, NOTING PARTICULARLY THE DETERMINATION THAT A
REASONABLE BASIS FOR THE ALLEGATION THAT THE ACTIVITY ASSISTED OR
ENCOURAGED AFGE IN ITS ORGANIZING EFFORTS HAD NOT BEEN ESTABLISHED, THE
DECISION OF THE ASSISTANT SECRETARY DOES NOT APPEAR INCONSISTENT WITH
PRIOR DECISIONS AND DOES NOT RAISE A MAJOR POLICY ISSUE WARRANTING
REVIEW.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS AND DOES NOT PRESENT ANY MAJOR POLICY ISSUE, YOUR APPEAL
FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED IN SECTION 2411.12
OF THE COUNCIL'S RULES. ACCORDINGLY, YOUR PETITION FOR REVIEW IS HEREBY
DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
S. SHOCHET
VA
3 FLRC 628; FLRC NO. 75A-76; SEPTEMBER 30, 1975.
MR. LEO M. PELLERZI, GENERAL COUNSEL
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
1325 MASSACHUSETTS AVENUE, NW.
WASHINGTON, D.C. 20005
(SYNOPSIS) FLRC NO. 75A-76
ARIZONA NATIONAL GUARD, AIR NATIONAL GUARD, SKY HARBOR AIRPORT,
PHOENIX, ARIZONA, ASSISTANT SECRETARY CASE NO. 72-4777. THE ASSISTANT
SECRETARY UPHELD THE ASSISTANT REGIONAL DIRECTOR'S APPROVAL OF A
SETTLEMENT OF AN UNFAIR LABOR PRACTICE COMPLAINT FILED AGAINST THE
ACTIVITY BY THE UNION (AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO), WHICH SETTLEMENT WAS OPPOSED BY THE UNION. THE UNION APPEALED
TO THE COUNCIL, CONTENDING THAT THE ASSISTANT SECRETARY'S DECISION IS
ARBITRARY AND CAPRICIOUS AND RAISES A MAJOR POLICY ISSUE.
COUNCIL ACTION (SEPTEMBER 30, 1975). THE COUNCIL HELD THAT THE
ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY AND CAPRICIOUS
AND DOES NOT PRESENT ANY MAJOR POLICY ISSUES. ACCORDINGLY, SINCE THE
UNION'S APPEAL FAILED TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED
UNDER SECTION 2411.12 OF THE COUNCIL'S RULES OF PROCEDURE, THE COUNCIL
DENIED REVIEW.
DEAR MR. PELLERZI:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
IN YOUR COMPLAINT YOU ALLEGED, IN SUBSTANCE, THAT THE ARIZONA
NATIONAL GUARD, AIR NATIONAL GUARD, SKY HARBOR AIRPORT, PHOENIX, ARIZONA
(THE ACTIVITY), VIOLATED THE ORDER BY REFUSING TO RECOGNIZE MR. ROBERT
DEYERBERG AS UNION PRESENT ON THE GROUND THAT HE WAS A SUPERVISOR.
AFTER THE COMPLAINT WAS FILED, THE ASSISTANT SECRETARY DID CONCLUDE, IN
A SEPARATE UNIT CLARIFICATION PROCEEDING, THAT MR. DEYERBERG WAS NOT A
SUPERVISOR WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER (ARIZONA,
NATIONAL GUARD, AIR NATIONAL GUARD, SKY HARBOR AIRPORT, A/SLMR NO. 436
(SEPTEMBER 30, 1974)), AND THE COUNCIL DENIED REVIEW OF THAT DECISION
(FLRC NO. 74A-78 (FEBRUARY 21, 1975), REPORT NO. 64). THE ACTIVITY
SUBSEQUENTLY PROPOSED TO SETTLE THE OUTSTANDING UNFAIR LABOR PRACTICE
COMPLAINT AGAINST IT BY AGREEING TO CONFER AND NEGOTIATE IN GOOD FAITH
WITH THE UNION AND ITS REPRESENTATIVE, ROBERT DEYERBERG, AND NOT
RESTRAIN, COERCE OR INTERFERE WITH ITS EMPLOYEES' RIGHTS. THEREAFTER,
THE ASSISTANT REGIONAL DIRECTOR DECLINES TO ISSUE A NOTICE OF HEARING
AND APPROVED A SETTLEMENT AGREEMENT WHICH INCLUDED THE POSTING OF A
NOTICE INDICATING THAT THE ACTIVITY WOULD RECOGNIZE MR. DEYERBERG AS THE
LOCAL UNION'S DESIGNATED REPRESENTATIVE. THE ASSISTANT SECRETARY UPHELD
THE ACTING REGIONAL DIRECTOR'S APPROVAL OF THAT SETTLEMENT "(I)N VIEW OF
THE RESOLUTION OF THE SUPERVISORY STATUS OF DEYERBERG, AND THE
RESPONDENT'S AGREEMENT TO POST A NOTICE INDICATING ITS RECOGNITION OF
HIS STATUS AS THE UNION'S DESIGNATED REPRESENTATIVE . . . "
IN YOUR PETITION FOR REVIEW, YOU CONTEND THAT THE ASSISTANT
SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS AND RAISES A MAJOR
POLICY ISSUE AS TO " . . . WHETHER OR NOT THE SETTLEMENT AGREEMENT
IMPOSED BY THE ASSISTANT REGIONAL DIRECTOR AND AFFIRMED BY THE ASSISTANT
SECRETARY IS REASONABLE AND WHETHER THAT SETTLEMENT AGREEMENT IS
GERMAINE TO THE ISSUES RAISED IN THE UNFAIR LABOR PRACTICE COMPLAINT."
YOU CONTEND, IN ADDITION, THAT " . . . AN ISSUE IS PRESENTED HERE WHICH
ASKS THE QUESTION WHETHER OR NOT THE DEPARTMENT OF LABOR CAN IMPOSE A
SETTLEMENT UPON A COMPLAINING LABOR ORGANIZATION WHERE THE LANGUAGE IN
THE SETTLEMENT AGREEMENT CONTAINS NOTHING MORE THAN THOSE RIGHTS WHICH
THE LABOR ORGANIZATION ALREADY ENJOYS UNDER THE EXECUTIVE ORDER AND
WHICH HAVE BEEN ADMITTEDLY VIOLATED BY MANAGEMENT."
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW OF THE ASSISTANT
SECRETARY'S DECISION DOES NOT MEET THE REQUIREMENTS OF SECTION 2411.12
OF THE COUNCIL'S RULES; THAT IS, HIS FINDINGS AND DECISION DO NOT
APPEAR IN ANY MANNER ARBITRARY AND CAPRICIOUS, NOR DO THEY REPRESENT A
MAJOR POLICY ISSUE.
THE ASSISTANT SECRETARY HAS, PURSUANT TO HIS AUTHORITY UNDER SECTION
6(D) OF THE ORDER, PRESCRIBED REGULATIONS NEEDED TO ADMINISTER HIS
FUNCTIONS UNDER THE ORDER. CONSISTENT WITH THE STUDY COMMITTEE REPORT
AND RECOMMENDATIONS, WHICH PROVIDES THAT "(I)F THE ASSISTANT SECRETARY
FINDS . . . THAT A SATISFACTORY OFFER OF SETTLEMENT HAS BEEN MADE, HE
MAY DISMISS THE COMPLAINT," THE ASSISTANT SECRETARY PROVIDES IN SECTION
203.6(A)(3) OF HIS REGULATIONS (NOW REDESIGNATED AND REWORDED IN SECTION
203.7(A)(3) OF THE REGULATIONS AS OF MAY 7, 1975):
THE ASSISTANT REGIONAL DIRECTOR SHALL TAKE ACTION WHICH MAY CONSIST
OF THE FOLLOWING, AS
APPROPRIATE:
(3) APPROVE A WRITTEN SETTLEMENT AGREEMENT BETWEEN THE PARTIES OR A
WRITTEN OFFER OF
SETTLEMENT BY THE RESPONDENT, MADE ANY TIME PRIOR TO THE CLOSE OF A
HEARING, IF ANY . . .
FURTHER, SECTION 203.7(A) OF THE REGULATIONS IN EFFECT AT THE TIME
THE COMPLAINT WAS FILED (NOW REDESIGNATED AND ENLARGED IN SECTION
203.8(D) ON MAY 7, 1975), STATES:
IF THE ASSISTANT REGIONAL DIRECTOR DETERMINES . . . THAT A
SATISFACTORY WRITTEN SETTLEMENT
AGREEMENT OR WRITTEN OFFER OF SETTLEMENT BY THE RESPONDENT HAS BEEN
MADE . . . HE MAY DISMISS
THE COMPLAINT.
THE ASSISTANT SECRETARY'S DECISION IN YOUR CASE WAS BASED ON THE
APPLICATION OF THESE REGULATIONS, AND YOUR PETITION PRESENTS NO
PERSUASIVE REASON TO SHOW THAT HE WAS WITHOUT AUTHORITY TO ESTABLISH
SUCH REGULATORY REQUIREMENTS OR THAT HE WRONGLY APPLIED THESE
REGULATIONS TO THE FACTS AND CIRCUMSTANCES OF THIS CASE. THE ASSISTANT
SECRETARY HAS WIDE DISCRETION TO APPROVE SETTLEMENT AGREEMENTS WHICH, IN
HIS VIEW, EFFECTUATE THE POLICY OF THE ORDER, AND YOUR PETITION FOR
REVIEW MAKES NO SHOWING THAT HIS REFUSAL TO SET ASIDE THE ASSISTANT
REGIONAL DIRECTOR'S APPROVAL OF THE SETTLEMENT AGREEMENT WAS WITHOUT
REASONABLE JUSTIFICATION IN THE FACTS OF THE CASE.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS, AND DOES NOT PRESENT ANY MAJOR POLICY ISSUES, YOUR
APPEAL FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED UNDER
SECTION 2411.12 OF THE COUNCIL'S RULES OF PROCEDURE. ACCORDINGLY, YOUR
PETITION FOR REVIEW IS HEREBY DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
COL. E. M. FENDER
AIR NATIONAL GUARD
3 FLRC 625; FLRC NO. 75A-64; SEPTEMBER 30, 1975.
MR. JOHN P. HELM, STAFF ATTORNEY
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES
1737 H STREET, NW.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 75A-64
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (VETERANS
ADMINISTRATION HOSPITAL, NEW ORLEANS, LOUISIANA), ASSISTANT SECRETARY
CASE NO. 64-2513 (CO). THE ASSISTANT SECRETARY, IN AGREEMENT WITH THE
ASSISTANT REGIONAL DIRECTOR AND BASED UPON THE ARD'S REASONING, FOUND
THAT DISMISSAL OF THE UNFAIR LABOR PRACTICE COMPLAINT OF THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES (NFFE), WHICH ALLEGED THAT THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES HAD VIOLATED SECTION 19(B)(1) AND (2)
OF THE ORDER, WAS WARRANTED IN THAT A REASONABLE BASIS FOR THE COMPLAINT
HAD NOT BEEN ESTABLISHED. ACCORDINGLY, THE ASSISTANT SECRETARY DENIED
NFFE'S REQUEST FOR REVERSAL OF THE ARD'S DISMISSAL OF THE COMPLAINT.
NFFE APPEALED TO THE COUNCIL, CONTENDING THAT THE DECISION OF THE
ASSISTANT SECRETARY IS ARBITRARY AND CAPRICIOUS AND PRESENTS A MAJOR
POLICY ISSUE.
COUNCIL ACTION (SEPTEMBER 30, 1975). THE COUNCIL HELD THAT THE
ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY AND CAPRICIOUS
AND DOES NOT PRESENT ANY MAJOR POLICY ISSUE. ACCORDINGLY, SINCE NFFE'S
APPEAL FAILED TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED UNDER
SECTION 2411.12 OF THE COUNCIL'S RULES OF PROCEDURE, THE COUNCIL DENIED
REVIEW.
DEAR MR. HELM:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION, AND THE OPPOSITION THERETO FILED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (AFGE), IN THE
ABOVE-ENTITLED CASE.
IN THIS CASE, THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES (NFFE)
FILED A COMPLAINT ALLEGING THAT AFGE VIOLATED SECTION 19(B)(1) AND (2)
OF THE ORDER. NFFE ALLEGED THAT AFGE HAD VIOLATED THE ORDER BY
AUTHORIZING ITS NONEMPLOYEE REPRESENTATIVES TO CONDUCT AN ORGANIZATIONAL
DRIVE AMONG EMPLOYEES OF THE VETERANS ADMINISTRATION HOSPITAL, NEW
ORLEANS, LOUISIANA (THE ACTIVITY), AT A TIME WHEN THE EMPLOYEES'
EXCLUSIVE REPRESENTATIVE, NFFE LOCAL 169, HAD A CONTRACT WITH THE
ACTIVITY AND NO QUESTION CONCERNING REPRESENTATION HAD BEEN RAISED. IT
WAS ALSO ALLEGED THAT THE ORGANIZATIONAL DRIVE WAS CONDUCTED ON THE
ACTIVITY PREMISES CONTRARY TO THE EXPRESS INSTRUCTION OF MANAGEMENT.
THE ASSISTANT REGIONAL DIRECTOR (ARD), FOUND THAT, ASSUMING THE ABOVE
ALLEGATIONS TO BE TRUE, THERE COULD BE NO VIOLATION OF SECTION 19(B)(1)
AND (2) OF THE ORDER. HE, THEREFORE, DISMISSED THE COMPLAINT. THE
ASSISTANT SECRETARY, IN AGREEMENT WITH THE ARD AND BASED ON HIS
REASONING, FOUND THAT DISMISSAL OF THE COMPLAINT WAS WARRANTED IN THAT A
REASONABLE BASIS FOR THE COMPLAINT HAD NOT BEEN ESTABLISHED.
ACCORDINGLY, THE ASSISTANT SECRETARY DENIED NFFE'S REQUEST FOR REVERSAL
OF THE ARD'S DISMISSAL OF THE COMPLAINT.
IN YOUR PETITION FOR REVIEW, YOU CONTEND THAT THE DECISION OF THE
ASSISTANT SECRETARY IS ARBITRARY AND CAPRICIOUS SINCE IT DOES NOT
CONTAIN A REASONED DISCUSSION OF THE BASIS FOR THE DISMISSAL OF THE
COMPLAINT. YOU FURTHER CONTEND THAT THE ASSISTANT SECRETARY'S DECISION
PRESENTS A MAJOR POLICY ISSUE OF WHETHER A CONTRACT BAR EXCLUDES
NONEMPLOYEE REPRESENTATIVES OF A UNION OTHER THAN THE INCUMBENT FROM
CONDUCTING AN ORGANIZATIONAL DRIVE ON ACTIVITY PREMISES DURING WORKING
HOURS. IN THIS CONNECTION, YOU CONTEND THAT THE ASSISTANT SECRETARY'S
DECISION IS INCONSISTENT WITH PRIOR DECISIONS CONCERNING REPRESENTATION
AND WHICH DOES NOT HAVE EQUIVALENT STATUS WITH AN INCUMBENT EXCLUSIVELY
RECOGNIZED REPRESENTATIVE.
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW OF THE ASSISTANT
SECRETARY'S DECISION DOES NOT MEET THE REQUIREMENTS OF SECTION 2411.12
OF THE COUNCIL'S RULES. THAT IS, HIS DECISION DOES NOT APPEAR TO BE
ARBITRARY AND CAPRICIOUS OR TO PRESENT A MAJOR POLICY ISSUE. WITH
RESPECT TO YOUR CONTENTION THAT THE ASSISTANT SECRETARY'S DECISION DID
NOT CONTAIN A REASONED DISCUSSION OF THE BASIS FOR THE DISMISSAL OF THE
COMPLAINT, IT DOES NOT APPEAR THAT THE ASSISTANT SECRETARY ACTED WITHOUT
REASONABLE JUSTIFICATION IN HIS DECISION, WHEREIN HE AGREED WITH THE ARD
AND BASED HIS DECISION ON THE ARD'S REASONING. AS TO THE ALLEGED MAJOR
POLICY ISSUE, THE COUNCIL IS OF THE OPINION THAT IN THE CIRCUMSTANCES
PRESENTED, NOTING PARTICULARLY THAT THE CITED ASSISTANT SECRETARY'S
DECISIONS ALL INVOLVED AN ALLEGATION AND A FINDING THAT AN AGENCY HAD
VIOLATED SECTION 19(A) WHEN IT GRANTED ORGANIZATIONAL RIGHTS TO A LABOR
ORGANIZATION (WHICH WERE NOT PRESENT IN THE INSTANT CASE), THE DECISION
OF THE ASSISTANT SECRETARY DOES NOT APPEAR INCONSISTENT WITH PRIOR
DECISIONS AND DOES NOT RAISE A MAJOR POLICY ISSUE WARRANTING REVIEW.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS AND DOES NOT PRESENT ANY MAJOR POLICY ISSUE, YOUR APPEAL
FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED UNDER SECTION
2411.12 OF THE COUNCIL'S RULES OF PROCEDURE. ACCORDINGLY, REVIEW OF
YOUR APPEAL IS HEREBY DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
R. J. MALLOY
AFGE
3 FLRC 617; FLRC NO. 74A-95; SEPTEMBER 26, 1975.
NATIONAL AERONAUTICS AND SPACE
ADMINISTRATION (NASA),
WASHINGTON, D.C.
AND
LYNDON B. JOHNSON SPACE CENTER
(NASA), HOUSTON, TEXAS
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL UNION 2284,
AFL-CIO
(SYNOPSIS) FLRC NO. 74A-95
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA), WASHINGTON,
D.C. AND LYNDON B. JOHNSON SPACE CENTER (NASA), HOUSTON, TEXAS, A/SLMR
NO. 457. THIS APPEAL AROSE FROM A DECISION OF THE ASSISTANT SECRETARY
WHO, UPON A COMPLAINT BY THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2284, AFL-CIO, FOUND THAT THE AGENCY VIOLATED SECTION
19(A)(1) OF THE ORDER. THE COUNCIL ACCEPTED THE PETITION FOR REVIEW ON
THE GROUND, AMONG OTHERS, THAT A MAJOR POLICY ISSUE WAS PRESENTED BY THE
DECISION OF THE ASSISTANT SECRETARY AS TO WHETHER AGENCY
HEADQUARTERS-LEVEL REPRESENTATIVES CONDUCTING MEETINGS OR INTERVIEWS
WITH ACTIVITY-LEVEL EMPLOYEES FOR THE PURPOSE OF SOLICITING OPINIONS
WITH RESPECT TO SUCH MATTERS AS THE EEO PROGRAM OF THE AGENCY ARE
REQUIRED BY THE ORDER TO PERMIT THE EXCLUSIVE REPRESENTATIVE OF SUCH
EMPLOYEES, UPON REQUEST, TO PARTICIPATE IN SUCH DISCUSSIONS OR
INTERVIEWS (REPORT NO. 65).
COUNCIL ACTION (SEPTEMBER 26, 1975). THE COUNCIL CONCLUDED THAT
AGENCY HEADQUARTERS-LEVEL REPRESENTATIVES CONDUCTING MEETINGS OR
INTERVIEWS WITH ACTIVITY-LEVEL EMPLOYEES MERELY FOR THE PURPOSE OF
SOLICITING OPINIONS WITH RESPECT TO SUCH MATTERS AS THE EEO PROGRAM OF
THE AGENCY ARE NOT REQUIRED BY THE ORDER TO PERMIT THE EXCLUSIVE
REPRESENTATIVE OF SUCH EMPLOYEES, EITHER ON THE AGENCY'S OWN INITIATIVE
OR UPON REQUEST, TO PARTICIPATE IN SUCH DISCUSSIONS OR INTERVIEWS. MORE
PARTICULARLY IN THIS CASE, THE COUNCIL FOUND THAT THE CONDUCT OF THE
AGENCY IN EVALUATING THE EFFECTIVENESS OF AN AGENCY-WIDE PROGRAM WHICH
EXISTED TOTALLY APART FROM THE COLLECTIVE BARGAINING RELATIONSHIP DID
NOT VIOLATE SECTION 19(A)(1) OF THE ORDER. ACCORDINGLY, PURSUANT TO
SECTION 2411.18(B) OF ITS RULES OF PROCEDURE, THE COUNCIL SET ASIDE THE
ASSISTANT SECRETARY'S DECISION AND REMANDED THE CASE TO HIM FOR
APPROPRIATE ACTION CONSISTENT WITH THE COUNCIL'S DECISION.
THIS APPEAL AROSE FROM A DECISION OF THE ASSISTANT SECRETARY WHO,
UPON COMPLAINT BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
UNION 2284, AFL-CIO (UNION), AGAINST THE NATIONAL AERONAUTICS AND SPACE
ADMINISTRATION (NASA), WASHINGTON, D.C. (AGENCY), AND THE LYNDON B.
JOHNSON SPACE CENTER (NASA), HOUSTON, TEXAS (ACTIVITY), ALLEGING
VIOLATIONS OF SECTION 19(A)(1) AND (6) OF THE ORDER, FOUND THAT THE
ACTIVITY DID NOT VIOLATE SECTION 19(A)(1) AND (6), AND THAT WHILE THE
AGENCY DID NOT VIOLATE SECTION 19(A)(6) OF THE ORDER, IT DID COMMIT A
19(A)(1) VIOLATION.
THE PERTINENT FACTS IN THE CASE, AS STIPULATED BY THE PARTIES AND
FOUND BY THE ASSISTANT SECRETARY, ARE AS FOLLOWS: /1/ SHORTLY AFTER
APPOINTMENT TO HIS POSITION, THE ASSISTANT ADMINISTRATOR FOR EQUAL
OPPORTUNITY PROGRAMS OF THE AGENCY DECIDED THAT IT WAS NECESSARY TO
VISIT VARIOUS NASA CENTERS, INCLUDING THE ACTIVITY HEREIN CONCERNED, IN
ORDER TO ASSESS THE STATE OF THE AGENCY'S EQUAL EMPLOYMENT OPPORTUNITY
(EEO) PROGRAM.
AT HIS REQUEST, THE ACTIVITY ARRANGED THREE MEETINGS OR INTERVIEWS
BETWEEN THE ASSISTANT ADMINISTRATOR AND VARIOUS EMPLOYEES OR EMPLOYEE
GROUPS WITHOUT REGARD AS TO WHETHER THEY WERE MEMBERS OF BARGAINING
UNITS. THESE MEETINGS OR INTERVIEWS WERE HELD WITH BLACK, SPANISH
SURNAME AND WOMEN EMPLOYEES OF THE ACTIVITY. ALL THE EMPLOYEES WITH
WHOM MEETINGS OR INTERVIEWS WERE ARRANGED WERE IN ONE OF THE BARGAINING
UNITS FOR WHICH THE UNION HAD BEEN ACCORDED EXCLUSIVE RECOGNITION. IN
ADDITION TO THE ABOVE MEETINGS, SEPARATE MEETINGS OR INTERVIEWS WERE
HELD WITH MEMBERS OF COMMUNITY GROUPS AND REPRESENTATIVES OF THE UNION.
NO MANAGEMENT OFFICIAL OF THE ACTIVITY ATTENDED THESE MEETINGS, NOR DID
THE ACTIVITY EXERCISE ANY SUPERVISION OR CONTROL OVER THE ASSISTANT
ADMINISTRATOR. AT THESE MEETINGS, THE ASSISTANT ADMINISTRATOR SOLICITED
THE OPINIONS OF THE EMPLOYEES WITH RESPECT TO THE EEO PROGRAM OF THE
AGENCY AND LISTENED TO THEIR SUGGESTIONS FOR EEO PROGRAM ADDITIONS AND
MODIFICATIONS. NO COMMITMENTS WERE MADE TO THE EMPLOYEES.
UPON LEARNING OF THE SCHEDULED MEETINGS, THE UNION REQUESTED THAT IT
BE ALLOWED TO HAVE AN OBSERVER PRESENT AT EACH OF THE MEETINGS OF
EMPLOYEE GROUPS AND THAT IT BE GRANTED A SEPARATE MEETING WITH THE
ADMINISTRATOR IN ORDER TO GIVE ITS "THOUGHTS" RELATIVE TO THE EEO
PROGRAM. THE ACTIVITY'S PERSONNEL OFFICER, PURSUANT TO DIRECTIONS FROM
THE AGENCY, GRANTED THE UNION'S REQUEST TO MEET SEPARATELY, BUT DENIED
THE SPECIFIC REQUEST FOR UNION PARTICIPATION IN THE MEETINGS WITH THE-
EMPLOYEES.
AS A RESULT OF THIS ACTION A COMPLAINT WAS FILED BY THE UNION AGAINST
THE AGENCY AND THE ACTIVITY ALLEGING THAT THEY VIOLATED SECTION 19(A)(1)
AND (6) BY HOLDING "OFFICIAL MEETINGS" WITH SEVERAL GROUPS OF EMPLOYEES
REPRESENTED BY THE UNION WITHOUT GIVING NOTIFICATION TO THEIR EXCLUSIVE
REPRESENTATIVE AND DENYING THE UNION THE RIGHT TO HAVE OBSERVERS PRESENT
AT THESE MEETINGS.
THE ASSISTANT SECRETARY FOUND THAT THE UNION'S RIGHTS AS EXCLUSIVE
REPRESENTATIVE WERE BASED ON THE EXCLUSIVE RECOGNITION ACCORDED IT BY
THE ACTIVITY, AND THAT UNDER THESE CIRCUMSTANCES, THE AGENCY WAS NOT
OBLIGATED TO MEET AND CONFER WITH THE UNION PURSUANT TO SECTION 11(A) OF
THE ORDER. THUS, ACCORDING TO THE ASSISTANT SECRETARY, THE OBLIGATION
TO MEET AND CONFER UNDER THE ORDER APPLIES ONLY IN THE CONTEXT OF THE
EXCLUSIVE BARGAINING RELATIONSHIP BETWEEN THE EXCLUSIVE REPRESENTATIVE
AND THE ACTIVITY OR AGENCY WHICH HAS ACCORDED EXCLUSIVE RECOGNITION.
FURTHER, HE CONCLUDED THAT THE ACTIVITY DID NOT ACT IN DEROGATION OF ITS
BARGAINING OBLIGATIONS UNDER THE ORDER. IN THIS REGARD, HE NOTED THAT
THE EVIDENCE ESTABLISHED THAT NO MANAGEMENT OFFICIAL OF THE ACTIVITY
EXERCISED ANY SUPERVISION OR CONTROL OVER THE AGENCY'S REPRESENTATIVE
WHO CONDUCTED THE MEETINGS IN QUESTION AND, FURTHER, THAT THERE WAS NO
EVIDENCE THAT THE ACTIVITY HAD REFUSED TO MEET AND CONFER WITH THE UNION
CONCERNING ANY MATTERS INVOLVING PERSONNEL POLICIES OR PRACTICES UNDER
ITS CONTROL OR DIRECTION INCLUDING MATTERS RELATING TO THE EEO PROGRAM.
BASED ON THESE CONSIDERATIONS, THE ASSISTANT SECRETARY FOUND THAT THE
ACTIVITY DID NOT VIOLATE SECTION 19(A)(1) AND (6) OF THE ORDER.
MOREOVER, HE FOUND THAT, BECAUSE THE AGENCY WAS NOT A PARTY TO A
BARGAINING RELATIONSHIP WITH THE UNION, IT COULD NOT BE IN VIOLATION OF
SECTION 19(A)(6) OF THE ORDER, BASED UPON THE ASSISTANT ADMINISTRATOR'S
MEETINGS WITH EMPLOYEES.
HOWEVER, THE ASSISTANT SECRETARY CONCLUDED THAT WHILE THE AGENCY
COULD NOT BE FOUND TO BE IN VIOLATION OF SECTION 19(A)(6), THIS
CIRCUMSTANCE DID NOT PRECLUDE HIS FINDING OF AN INDEPENDENT 19(A)(1)
VIOLATION BY THE AGENCY WHICH WAS NOT PREMISED ON THE EXISTENCE OF A
BARGAINING RELATIONSHIP BETWEEN THE AGENCY AND THE UNION. THUS, THE
ASSISTANT SECRETARY FOUND THAT THE AGENCY'S ACTION IN CONDUCTING
MEETINGS OR INTERVIEWS WITH UNIT EMPLOYEES IN WHICH THEIR "TERMS AND
CONDITIONS OF EMPLOYMENT" WERE DISCUSSED, WHILE REFUSING THE REQUEST OF
THE EXCLUSIVE REPRESENTATIVE OF THESE EMPLOYEES TO PARTICIPATE IN SUCH
"DISCUSSIONS," RAN COUNTER TO THE PURPOSES AND POLICIES OF THE ORDER
WITH REGARD TO THE: OBLIGATION OWED TO AN EXCLUSIVE REPRESENTATIVE AS
THE SPOKESMAN OF THE EMPLOYEES IT REPRESENTS. FURTHER, THE ASSISTANT
SECRETARY FOUND SUCH CONDUCT TO BE INCONSISTENT WITH THE POLICY SET
FORTH IN SECTION 1(A) OF THE ORDER CONCERNING AN AGENCY HEAD'S
OBLIGATION TO ASSURE THAT EMPLOYEES' RIGHTS ARE PROTECTED.
UNDER ALL THE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THAT THE
AGENCY'S CONDUCT CONSTITUTED AN UNDERMINING OF THE STATUS OF THE
EXCLUSIVE REPRESENTATIVE SELECTED BY THE EMPLOYEES OF THE ACTIVITY.
ACCORDINGLY, HE CONCLUDED THAT THE AGENCY'S CONDUCT RESULTED IN IMPROPER
INTERFERENCE WITH, RESTRAINT, OR COERCION OF UNIT EMPLOYEES IN THE
EXERCISE OF RIGHTS ASSURED BY THE ORDER IN VIOLATION OF SECTION
19(A)(1).
THEREAFTER, THE ASSISTANT SECRETARY'S DECISION WAS APPEALED TO THE
COUNCIL BOTH BY THE AGENCY AND THE UNION. UPON CONSIDERATION OF THE
PETITIONS FOR REVIEW, THE COUNCIL DETERMINED THAT MAJOR POLICY ISSUES
WERE PRESENTED BY THE DECISION OF THE ASSISTANT SECRETARY, /2/ NAMELY:
I. WHETHER AGENCY HEADQUARTERS-LEVEL REPRESENTATIVES CONDUCTING
MEETINGS OR INTERVIEWS
WITH ACTIVITY-LEVEL EMPLOYEES FOR THE PURPOSE OF SOLICITING OPINIONS
WITH RESPECT TO SUCH
MATTERS AS THE EEO PROGRAM OF THE AGENCY ARE REQUIRED BY THE ORDER TO
PERMIT THE EXCLUSIVE
REPRESENTATIVE OF SUCH EMPLOYEES, UPON REQUEST, TO PARTICIPATE IN
SUCH DISCUSSIONS OR
INTERVIEWS; AND
II. WHETHER THE ACTS AND CONDUCT OF AGENCY MANAGEMENT AT A HIGHER
LEVEL OF AN AGENCY'S
ORGANIZATION MAY PROVIDE THE BASIS FOR FINDING A VIOLATION OF SECTION
19(A) OF THE ORDER BY
LOWER LEVEL MANAGEMENT IN THE SAME AGENCY WHO HAVE A BARGAINING
RELATIONSHIP WITH AN EXCLUSIVE
REPRESENTATIVE.
BRIEFS WERE FILED BY THE AGENCY (ON BEHALF OF THE ACTIVITY, AS WELL
AS ITSELF) AND BY THE UNION. ADDITIONALLY, THE DEPARTMENT OF THE
TREASURY AND THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE WERE
PERMITTED TO FILE BRIEFS AS AMICI CURIAE.
ISSUE I
THE NATURE AND SCOPE OF MANAGEMENT'S OBLIGATION WITH REGARD TO THE
PARTICIPATION OF AN EXCLUSIVE REPRESENTATIVE IN MANAGEMENT'S DISCUSSIONS
OR INTERVIEWS WITH UNIT EMPLOYEES ARE SET OUT IN SECTION 10(E) OF THE
ORDER. THAT IS, AN EXCLUSIVE REPRESENTATIVE--
. . . SHALL BE GIVEN THE OPPORTUNITY TO BE REPRESENTED AT FORMAL
DISCUSSIONS BETWEEN
MANAGEMENT AND EMPLOYEES OR EMPLOYEE REPRESENTATIVES CONCERNING
GRIEVANCES, PERSONNEL POLICIES
AND PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS
OF EMPLOYEES IN THE
UNIT. (EMPHASIS SUPPLIED.)
THE QUESTION, THEREFORE, AS TO THE RIGHT OF THE EXCLUSIVE
REPRESENTATIVE TO HAVE AN OPPORTUNITY TO PARTICIPATE IN DISCUSSIONS OR
INTERVIEWS BETWEEN AGENCY HEADQUARTERS-LEVEL REPRESENTATIVES CONDUCTING
MEETINGS OR INTERVIEWS WITH ACTIVITY-LEVEL EMPLOYEES FOR THE PURPOSE OF
SOLICITING OPINIONS WITH RESPECT TO SUCH MATTERS AS THE EEO PROGRAM OF
THE AGENCY NECESSARILY TURNS ON WHETHER SUCH DISCUSSIONS OR INTERVIEWS
ARE "FORMAL DISCUSSIONS BETWEEN MANAGEMENT AND EMPLOYEES . . .
CONCERNING GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER
MATTERS AFFECTING GENERAL WORKING CONDITIONS . . . " IN THE COUNCIL'S
VIEW, THE MEETINGS AT ISSUE IN THE INSTANT CASE WERE NOT "FORMAL
DISCUSSIONS" BETWEEN MANAGEMENT AND EMPLOYEES AS THAT PHRASE IS USED IN
SECTION 10(E). THEREFORE, MANAGEMENT WAS NOT REQUIRED TO GIVE THE
EXCLUSIVE REPRESENTATIVE AN OPPORTUNITY TO PARTICIPATE IN THE MEETINGS
OR INTERVIEWS INVOLVED HEREIN.
THE LANGUAGE OF THE PERTINENT PORTION OF SECTION 10(E) QUOTED ABOVE
MAKES CLEAR THAT IT IS NOT THE INTEND OF THE ORDER TO GRANT TO AN
EXCLUSIVE REPRESENTATIVE A RIGHT TO BE REPRESENTED IN EVERY DISCUSSION
BETWEEN AGENCY MANAGEMENT AND EMPLOYEES. RATHER, SUCH A RIGHT EXISTS
ONLY WHEN THE DISCUSSIONS ARE DETERMINED TO BE FORMAL DISCUSSIONS AND
CONCERN GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS
AFFECTING THE GENERAL WORKING CONDITIONS OF UNIT EMPLOYEES. /3/ IN THE
SITUATION AT ISSUE IN THE INSTANT CASE, AGENCY HEADQUARTERS-LEVEL
REPRESENTATIVES MET WITH ACTIVITY-LEVEL EMPLOYEES FOR THE PURPOSE OF
SOLICITING OPINIONS WITH RESPECT TO THE EEO PROGRAM OF THE AGENCY. MORE
PARTICULARLY, AS STIPULATED BY THE PARTIES, THE ASSISTANT ADMINISTRATOR
MERELY:
. . . SOLICITED THE OPINIONS OF THE EMPLOYEES WITH RESPECT TO THE EEO
PROGRAM OF THE
. . . AGENCY AND LISTENED TO THEIR SUGGESTIONS FOR EEO PROGRAM
ADDITIONS AND
MODIFICATIONS. NO COMMITMENTS WERE MADE TO THE EMPLOYEES.
FURTHER, THE STIPULATED RECORD CONTAINS NO INDICATION THAT THE
ASSISTANT ADMINISTRATOR ATTEMPTED TO RESOLVE THE ISSUES RAISED AT THE
MEETINGS THROUGH AGREEMENT WITH ASSEMBLED EMPLOYEES, INDIVIDUALLY OR
COLLECTIVELY, NOR DID HE MAKE "COUNTERPROPOSALS" TO THE SUGGESTIONS
OFFERED. THERE IS NO INDICATION THAT THE ASSISTANT ADMINISTRATOR EITHER
EXPRESSLY OR IMPLIEDLY SUGGESTED TO THE EMPLOYEES DURING SUCH
SOLICITATIONS THAT THEIR OPINIONS AND CRITICISMS WOULD GOVERN FUTURE
MODIFICATIONS OF THE AGENCY'S (OR THE ACTIVITY'S) CONDUCT AND/OR
REGULATIONS CONCERNING THE OPERATION OF ITS EEO PROGRAM, OR THAT HE
INDICATED THAT THEIR ANSWERS WOULD HAVE AN EFFECT ON THE EMPLOYEES'
STATUS. SIMILARLY, THERE WAS NO EVIDENCE ADDUCED THAT THE DISCUSSIONS
DEALT WITH SPECIFIC EMPLOYEE GRIEVANCES OR OTHER MATTERS COGNIZABLE
UNDER AN EXISTING AGREEMENT BETWEEN THE ACTIVITY AND THE LOCAL UNION, OR
THAT THE ASSISTANT ADMINISTRATOR WAS GATHERING THE INFORMATION FOR THE
PURPOSE OF USING IT SUBSEQUENTLY TO PERSUADE THE UNION TO ABANDON A
POSITION TAKEN DURING NEGOTIATIONS REGARDING THE OPERATION OF THE EEO
PROGRAM.
IN OUR VIEW, DISCUSSIONS SUCH AS THOSE DESCRIBED HEREIN WERE NOT
"FORMAL DISCUSSIONS CONCERNING GRIEVANCES, PERSONNEL POLICIES AND
PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF
EMPLOYEES IN THE UNIT." RATHER, THEY WERE A MECHANISM WHEREBY AGENCY
HEADQUARTERS-LEVEL MANAGEMENT SOUGHT TO EVALUATE THE EFFECTIVENESS OF AN
AGENCYWIDE PROGRAM WHICH EXISTED TOTALLY APART FROM THE COLLECTIVE
BARGAINING RELATIONSHIP AT THE LEVEL OF THE EXCLUSIVE RECOGNITION.
INDEED, WITHOUT THE BENEFIT OF SUCH INFORMATION-GATHERING MECHANISMS,
AGENCY MANAGEMENT WOULD BE SERIOUSLY IMPEDED IN EFFECTIVELY CARRYING OUT
ITS RESPONSIBILITY-- OFTEN MANDATED BY STATUTE, AS IN THE INSTANT CASE--
TO CONDUCT PERIOD EVALUATIONS OF THE EFFECTIVENESS OF SUCH AGENCYWIDE
PROGRAMS. (WHILE MECHANISMS OF THIS SORT ARE NOT DISCUSSIONS WHEREIN
MANAGEMENT IS OBLIGATED TO GIVE THE EXCLUSIVE REPRESENTATIVE THE
OPPORTUNITY TO BE REPRESENTED, MANAGEMENT MAY WELL CONSIDER IT DESIRABLE
TO GIVE THE EXCLUSIVE REPRESENTATIVE THE OPPORTUNITY TO BE PRESENT AT
MEETINGS SUCH AS THOSE CONDUCTED BY THE AGENCY IN THE INSTANT CASE.
CLEARLY SUCH REPRESENTATION IS NOT PROHIBITED BY THE ORDER.)
WE MUST EMPHASIZE THAT OUR VIEWS, AS EXPRESSED ABOVE, PERTAIN ONLY TO
INFORMATION-GATHERING DEVICES SUCH AS THE MEETINGS INVOLVED IN THIS
CASE. THAT IS, THEY APPLY ONLY IN CIRCUMSTANCES SUCH AS THOSE MENTIONED
ABOVE WHERE MANAGEMENT DOES NOT, IN THE COURSE OF INFORMATION GATHERING:
SEEK TO MAKE COMMITMENTS OR COUNTERPROPOSALS REGARDING EMPLOYEE
OPINIONS OR COMPLAINTS SOLICITED BY MEANS OF SUCH DEVICES; INDICATE
THAT THE EMPLOYEES' COMMENTS ON SUCH MATTERS MIGHT HAVE AN EFFECT OF THE
EMPLOYEES' STATUS; DEAL WITH SPECIFIC EMPLOYEE GRIEVANCES OR OTHER
MATTERS COGNIZABLE UNDER AN EXISTING AGREEMENT; OR GATHER INFORMATION
REGARDING EMPLOYEE SENTIMENTS FOR THE PURPOSE OF USING IT SUBSEQUENTLY
TO PERSUADE THE UNION TO ABANDON A POSITION TAKEN DURING NEGOTIATIONS
REGARDING THE PERSONNEL POLICIES OR PRACTICES CONCERNED.
TURNING TO THE REASONING OF THE ASSISTANT SECRETARY, HIS FINDING OF A
VIOLATION IN THE INSTANT CASE WAS BASED ON THE CONCLUSION THAT THE
AGENCY'S CONDUCT UNDERMINED THE STATUS OF THE EXCLUSIVE REPRESENTATIVE
SELECTED BY THE EMPLOYEES AND THAT SUCH CONDUCT RESULTED IN IMPROPER
INTERFERENCE WITH, RESTRAINT, OR COERCION OF UNIT EMPLOYEES BY THE
AGENCY IN THE EXERCISE OF THEIR RIGHTS ASSURED UNDER THE ORDER IN
VIOLATION OF SECTION 19(A)(1). IF THE COUNCIL WERE TO SUSTAIN THE
ASSISTANT SECRETARY'S CONCLUSIONS IN THIS REGARD, WE WOULD, IN EFFECT,
BE CONSTRUING THE ORDER SO AS TO FIND THAT ANY MEETING BETWEEN AGENCY
MANAGEMENT AND UNIT EMPLOYEES WHEREIN DISCUSSIONS OF PERSONNEL POLICIES
AND PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS
TOOK PLACE WOULD BE A PER SE VIOLATION OF THE ORDER, REGARDLESS OF THE
CIRCUMSTANCES INVOLVED, THE CONTENT OF THE DISCUSSION, OR THE ACTUAL
CONDUCT OF AGENCY MANAGEMENT. WE DO NOT BELIEVE THAT THE ORDER REQUIRES
SUCH A RESULT. AS STATED ABOVE, THE CRITICAL ISSUE WAS THE RIGHT OF THE
EXCLUSIVE REPRESENTATIVE TO BE REPRESENTED AT THE MEETING PURSUANT TO
THE PROVISIONS OF SECTION 10(E). SINCE, AS WE HAVE CONCLUDED, THE UNION
HAD NO RIGHT TO BE REPRESENTED AT THE MEETING, THE UNION'S STATUS AS
BARGAINING REPRESENTATIVE COULD NOT BE UNDERMINED BY DENYING ITS REQUEST
TO PARTICIPATE AT SUCH MEETINGS. /4/
WE CONCLUDE, THEREFORE, AS TO ISSUE I, THAT AGENCY HEADQUARTERS-LEVEL
REPRESENTATIVES CONDUCTING MEETINGS OR INTERVIEWS WITH ACTIVITY-LEVEL
EMPLOYEES MERELY FOR THE PURPOSE OF SOLICITING OPINIONS WITH RESPECT TO
SUCH MATTERS AS THE EEO PROGRAM OF THE AGENCY ARE NOT REQUIRED BY THE
ORDER TO PERMIT THE EXCLUSIVE REPRESENTATIVE OF SUCH EMPLOYEES, EITHER
ON THE AGENCY'S OWN INITIATIVE OR UPON REQUEST, TO PARTICIPATE IN SUCH
DISCUSSIONS OR INTERVIEWS. MORE PARTICULARLY IN THIS CASE, WE FIND THAT
THE CONDUCT OF THE AGENCY IN EVALUATING THE EFFECTIVENESS OF AN
AGENCY-WIDE PROGRAM WHICH EXISTED TOTALLY APART FROM THE COLLECTIVE
BARGAINING RELATIONSHIP DID NOT VIOLATE SECTION 19(A)(1) OF THE ORDER.
/5/
ISSUE II
HAVING CONCLUDED ABOVE THAT THE ACTS AND CONDUCT OF AGENCY MANAGEMENT
WERE NOT VIOLATIVE OF THE ORDER, IT IS UNNECESSARY FOR THE RESOLUTION OF
THIS CASE TO DETERMINE WHETHER ACTS AND CONDUCT OF AGENCY MANAGEMENT AT
A HIGHER LEVEL OF AN AGENCY'S ORGANIZATION (THE ASSISTANT ADMINISTRATOR
IN THIS CASE), IF VIOLATIVE OF THE ORDER, WOULD HAVE BEEN A BASIS FOR
FINDING A VIOLATION OF SECTION 19(A) OF THE ORDER BY LOWER-LEVEL
MANAGEMENT WHO HAD A BARGAINING RELATIONSHIP WITH THE UNION.
ACCORDINGLY, WE DO NOT PASS UPON THAT ISSUE.
FOR THE FOREGOING REASONS, WE FIND THAT THE ASSISTANT SECRETARY'S
DECISION THAT THE AGENCY VIOLATED SECTION 19(A)(1) IS INCONSISTENT WITH
THE PURPOSES OF THE ORDER. ACCORDINGLY, PURSUANT TO SECTION 2411.18(B)
OF THE COUNCIL'S RULES OF PROCEDURE, WE SET ASIDE THE ASSISTANT
SECRETARY'S DECISION AND REMAND THE CASE TO HIM FOR APPROPRIATE ACTION
CONSISTENT WITH OUR DECISION.
BY THE COUNCIL.
ISSUED: SEPTEMBER 26, 1975
/1/ THE CASE WAS TRANSFERRED TO THE ASSISTANT SECRETARY PURSUANT TO
SECTION 206.5(A) OF HIS REGULATIONS AFTER THE PARTIES SUBMITTED A
STIPULATION OF FACTS AND EXHIBITS TO THE ASSISTANT REGIONAL DIRECTOR.
/2/ THE COUNCIL EARLIER APPROVED THE AGENCY'S REQUEST FOR A STAY OF
THE ASSISTANT SECRETARY'S DECISION.
/3/ SEE, FOR EXAMPLE, DEPARTMENT OF DEFENSE, NATIONAL GUARD BUREAU,
TEXAS AIR NATIONAL GUARD, A/SLMR NO. 336, FLRC NO. 74A-11 (JUNE 18,
1974), REPORT NO. 54, AND INTERNAL REVENUE SERVICE, WASHINGTON, D.C.,
ASSISTANT SECRETARY CASE NO. 22-4056 (CA), FLRC NO. 74A-23 (OCTOBER 22,
1974), REPORT NO. 58, WHEREIN THE COUNCIL DENIED REVIEW OF THE ASSISTANT
SECRETARY'S DETERMINATIONS THAT CERTAIN DISCUSSIONS BETWEEN MANAGEMENT
AND EMPLOYEES WERE NOT "FORMAL DISCUSSIONS" WITHIN THE MEANING OF
SECTION 10(E) OF THE ORDER.
/4/ THE RIGHT OF THE UNION TO BE REPRESENTED AT A MEETING WITH
EMPLOYEES MUST, OF COURSE, BE DISTINGUISHED FROM THE RIGHT OF EMPLOYEES
TO UNION REPRESENTATION UNDER CERTAIN CIRCUMSTANCES. THE COUNCIL IS
CURRENTLY CONSIDERING, PURSUANT TO SECTION 4(B) OF THE ORDER AND SECTION
2410.3 OF ITS RULES, AS A MAJOR POLICY ISSUE WHICH HAS GENERAL
APPLICATION TO THE FEDERAL LABOR-MANAGEMENT RELATIONS PROGRAM, THE
FOLLOWING QUESTION:
DOES AN EMPLOYEE IN A UNIT OF EXCLUSIVE RECOGNITION HAVE A PROTECTED
RIGHT UNDER THE ORDER
TO ASSISTANCE (POSSIBLY INCLUDING PERSONNEL REPRESENTATION) BY THE
EXCLUSIVE REPRESENTATIVE
WHEN HE IS SUMMONED TO A MEETING OR INTERVIEW WITH AGENCY MANAGEMENT,
AND, IF SO, UNDER WHAT
CIRCUMSTANCES MAY SUCH A RIGHT BE EXERCISED?
/5/ AS WE HAVE CONCLUDED THAT THE ACTS AND CONDUCT AT ISSUE DO NOT
VIOLATE THE ORDER, IT IS UNNECESSARY TO PASS UPON THE ASSISTANT
SECRETARY'S FINDING THAT:
. . . THE RESPONDENT AGENCY, WHICH WAS NOT A PARTY TO A BARGAINING
RELATIONSHIP WITH THE
(UNION), COULD NOT BE IN VIOLATION OF SECTION 19(A)(6) OF THE ORDER
BASED ON DR. MCCONNELL'S
MEETING WITH SUCH EMPLOYEES.
3 FLRC 613; FLRC NO. 75A-66; SEPTEMBER 23, 1975.
MR. R. J. ALFULTIS
DIRECTOR OF PERSONNEL AND TRAINING
OFFICE OF THE SECRETARY
DEPARTMENT OF TRANSPORTATION
WASHINGTON, D.C. 20590
(SYNOPSIS) FLRC NO. 75A-66
DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, A/SLMR
NO. 517. THE ASSISTANT SECRETARY, UPON A COMPLAINT FILED BY THE
NATIONAL ASSOCIATION OF AIR TRAFFIC SPECIALISTS, FOUND THAT THE AGENCY'S
REFUSAL TO COMPLY WITH AN ARBITRATION AWARD VIOLATED SECTION 19(A)(1)
AND (6) OF THE ORDER. (THE COUNCIL HAD PREVIOUSLY DENIED THE AGENCY'S
PETITION FOR REVIEW OF THE SUBJECT ARBITRATION AWARD. FEDERAL AVIATION
ADMINISTRATION, U.S. DEPARTMENT OF TRANSPORTATION AND NATIONAL
ASSOCIATION OF AIR TRAFFIC SPECIALISTS, DES MOINES, IOWA, FLIGHT SERVICE
STATION (HATCHER, ARBITRATOR), FLRC NO. 73A-50 (MARCH 29, 1974), REPORT
NO. 52.) THE AGENCY APPEALED TO THE COUNCIL CONTENDING THAT THE DECISION
OF THE ASSISTANT SECRETARY PRESENTS MAJOR POLICY ISSUES AND IS ARBITRARY
AND CAPRICIOUS. THE AGENCY ALSO REQUESTED A STAY OF THE ASSISTANT
SECRETARY'S DECISION.
COUNCIL ACTION (SEPTEMBER 23, 1975). THE COUNCIL HELD THAT THE
AGENCY'S PETITION FOR REVIEW FAILED TO MEET THE REQUIREMENTS OF SECTION
2411.12 OF THE COUNCIL'S RULES; THAT IS, THE ASSISTANT SECRETARY'S
DECISION DOES NOT APPEAR IN ANY MANNER ARBITRARY AND CAPRICIOUS, NOR
DOES IT PRESENT A MAJOR POLICY ISSUE. ACCORDINGLY, THE COUNCIL DENIED
REVIEW OF THE AGENCY'S PETITION. THE COUNCIL ALSO DENIED THE AGENCY'S
REQUEST FOR A STAY UNDER SECTION 2411.47(C)(2) OF THE COUNCIL'S THEN
CURRENT RULES.
DEAR MR. ALFULTIS:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW AND
REQUEST FOR A STAY OF THE ASSISTANT SECRETARY'S DECISION, AND THE
OPPOSITION THERETO FILED BY THE UNION, IN THE ABOVE-ENTITLED CASE.
THE CASE AROSE AS A RESULT OF A COMPLAINT FILED BY THE NATIONAL
ASSOCIATION OF AIR TRAFFIC SPECIALISTS (NAATS) ALLEGING THAT THE
DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION (FAA) HAD
VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY FAILING AND REFUSING
TO COMPLY WITH AN ARBITRATION AWARD WHEREIN THE ARBITRATOR DETERMINED
THAT THE AGENCY HAD FAILED TO PROVIDE "ADEQUATE" PARKING BECAUSE THE NEW
PARKING AREA DID NOT MEET THE ADEQUACY REQUIREMENTS IN THE FAA ORDER AND
HAD THUS VIOLATED ARTICLE VIII OF THE AGREEMENT AND FAA ORDER 4665.3A.
/1/
THE NAATS CONTENDED THAT THE AWARD BECAME FINAL AND BINDING WHEN THE
FAA'S PETITION FOR REVIEW OF THE AWARD WAS DENIED BY THE COUNCIL.
FEDERAL AVIATION ADMINISTRATION, U.S. DEPARTMENT OF TRANSPORTATION AND
NATIONAL ASSOCIATION OF AIR TRAFFIC SPECIALISTS, DES MOINES, IOWA,
FLIGHT SERVICE STATION (HATCHER, ARBITRATOR), FLRC NO. 73A-50 (MARCH 29,
1974), REPORT NO. 52. THE ASSISTANT SECRETARY, RELYING ON THE COUNCIL'S
DECISION IN DEPARTMENT OF THE ARMY, ABERDEEN PROVING GROUND, A/SLMR NO.
412, FLRC NO. 74A-46 (MARCH 20, 1975), REPORT NO. 67, REJECTED THE
AGENCY'S CONTENTION THAT QUESTIONS ARISING FROM AN ARBITRATION AWARD ARE
NOT APPROPRIATE MATTERS FOR ENFORCEMENT BY HIM WITHIN THE FRAMEWORK OF
THE UNFAIR LABOR PRACTICE PROCEDURES AND FOUND THAT FAA'S REFUSAL TO
COMPLY WITH THE ARBITRATION AWARD VIOLATED SECTION 19(A)(1) AND (6) OF
THE ORDER. IN RESPONSE TO THE FAA'S CONTENTION THAT BECAUSE A NEW
AGREEMENT EXECUTED BY THE PARTIES SUBSEQUENT TO THE DISPUTED AWARD WAS
SILENT ON ALL SUBJECTS OF PARKING, "THE INSTANT GRIEVANCE WAS RENDERED
MOOT AND ALL CONTRACTUAL OBLIGATIONS TO EFFECT THIS AWARD WERE LIKEWISE
NULLIFIED," THE ASSISTANT SECRETARY FOUND, IN PERTINENT PART, "THE
ARBITRATION AWARD ESTABLISHED A TERM AND CONDITION OF EMPLOYMENT FOR
UNIT EMPLOYEES" UPON WHICH THE PARTIES "WERE OBLIGATED TO MEET AND
CONFER IF EITHER DESIRED A MODIFICATION." THE ASSISTANT SECRETARY
CONCLUDED, HOWEVER, THAT THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH THAT
THE UNION WAIVED THE ARBITRATION AWARD,
AS A RESULT OF THE EXECUTION OF THE PARTIES' MOST RECENT NEGOTIATED
AGREEMENT. NOR, UNDER
THE CIRCUMSTANCES HEREIN, DO I BELIEVE THAT THE RESPONDENT CAN NOW
ACHIEVE, BY MERELY
DECLARING THAT THE ISSUE IS MOOT AS A RESULT OF A NEW NEGOTIATED
BARGAINING AGREEMENT, WHICH
IS SILENT ON THE SUBJECT OF PARKING, WHAT IT FAILED TO ACHIEVE
THROUGH THE
GRIEVANCE-ARBITRATION MACHINERY AND REVIEW BY THE COUNCIL.
IN YOUR PETITION FOR REVIEW YOU CONTEND, IN SUMMARY, THAT THE
DECISION OF THE ASSISTANT SECRETARY RAISES MAJOR POLICY ISSUES IN THAT
THE NET EFFECT OF THE ASSISTANT SECRETARY'S DECISION IS THAT ALL
ARBITRATORS' AWARDS CONTINUE INDEFINITELY AND THIS RESULT HAS THE EFFECT
OF HAVING THE PROVISION UPON WHICH THE AWARD WAS BASED SURVIVE THE
AGREEMENT ABSENT A FINDING BY THE ARBITRATOR THAT SUCH SURVIVABILITY IS
BASED ON HIS CONSTRUCTION OF THE AGREEMENT. YOU ALSO CONTEND THAT IT
WAS ARBITRARY AND CAPRICIOUS FOR THE ASSISTANT SECRETARY TO PLACE ON FAA
THE BURDEN OF PROOF THAT THERE WAS NO AFFIRMATIVE EVIDENCE THAT THE
PARTIES MUTUALLY AGREED NOT TO BE BOUND BY THE ARBITRATOR'S AWARD.
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW DOES NOT MEET THE
REQUIREMENTS OF SECTION 2411.12 OF THE COUNCIL'S RULES; THAT IS, THE
ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR IN ANY MANNER ARBITRARY
AND CAPRICIOUS, NOR DOES IT PRESENT A MAJOR POLICY ISSUE. AS TO YOUR
CONTENTIONS WITH RESPECT TO MAJOR POLICY ISSUES, THE COUNCIL IS OF THE
OPINION THAT IN THE CIRCUMSTANCES OF THE CASE THE ASSISTANT SECRETARY'S
DETERMINATION AS TO THE CONTINUING EFFECT OF THE ARBITRATOR'S AWARD DOES
NOT WARRANT REVIEW, NOTING PARTICULARLY THE ASSISTANT SECRETARY'S
FINDING THAT THERE WAS NO AFFIRMATIVE EVIDENCE THAT THE PARTIES MUTUALLY
AGREED NOT TO BE BOUND BY THE ARBITRATION AWARD WHEN THEY RENEGOTIATED
THEIR AGREEMENT. FURTHERMORE, THE COUNCIL CONCLUDES THAT THE ASSISTANT
SECRETARY, IN DETERMINING THAT THE AWARD WAS STILL VIABLE, WAS SIMPLY
CARRYING OUT HIS FUNCTION OF DETERMINING WHETHER THE FAA HAD FAILED TO
ABIDE BY THE ARBITRATOR'S AWARD, AS REQUIRED BY THE COUNCIL IN ABERDEEN
PROVING GROUND, SUPRA. /2/ AS TO YOUR CONTENTION THAT THE ASSISTANT
SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS, IT DOES NOT APPEAR
THAT THE ASSISTANT SECRETARY'S DETERMINATION AS TO THE SUBMISSION OF
EVIDENCE WAS WITHOUT REASONABLE JUSTIFICATION.
ACCORDINGLY, YOUR PETITION FOR REVIEW IS DENIED, SINCE IT DOES NOT
MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED IN SECTION 2411.12 OF THE
COUNCIL'S RULES OF PROCEDURE. LIKEWISE, THE COUNCIL HAS DIRECTED THAT
YOUR REQUEST FOR A STAY BE DENIED UNDER SECTION 2411.47(C)(2) OF THE
COUNCIL'S RULES OF PROCEDURE.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
R. E. NAGLE
/1/ FEDERAL AVIATION ADMINISTRATION, INFRA, FLRC NO. 73A-50.
/2/ IN SO CONCLUDING, WE DO NOT INTERPRET THE DECISION OF THE
ASSISTANT SECRETARY AS ESTABLISHING AN OBLIGATION ON A PARTY TO
NEGOTIATE PRIOR TO MAKING CHANGES IN PERSONNEL POLICIES AND PRACTICES
AND MATTERS AFFECTING WORKING CONDITIONS ESTABLISHED IN A PRIOR
AGREEMENT BUT NOT CONTAINED IN A SUBSEQUENT AGREEMENT.
3 FLRC 610; FLRC NO. 75A-70; SEPTEMBER 18, 1975.
MS. JANET COOPER, STAFF ATTORNEY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
1737 H STREET, NW.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 75A-70
VETERANS ADMINISTRATION, VETERANS ADMINISTRATION DATA PROCESSING
CENTER, AUSTIN, TEXAS, ASSISTANT SECRETARY CASE NO. 63-5277 (CA). THE
ASSISTANT SECRETARY, IN AGREEMENT WITH THE ASSISTANT REGIONAL DIRECTOR,
FOUND THAT A REASONABLE BASIS HAD NOT BEEN ESTABLISHED FOR THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES' UNFAIR LABOR PRACTICE COMPLAINT, WHICH
ALLEGED THAT THE ACTIVITY VIOLATED SECTION 19(A)(1), (2) AND (6) OF THE
ORDER, AND UPHELD THE ARD'S DISMISSAL OF THE COMPLAINT. THE UNION
APPEALED TO THE COUNCIL, CONTENDING THAT MAJOR POLICY ISSUES ARE
PRESENTED BY THE DECISION OF THE ASSISTANT SECRETARY.
COUNCIL ACTION (SEPTEMBER 18, 1975). THE COUNCIL HELD THAT BECAUSE
THE ASSISTANT SECRETARY'S DECISION DOES NOT PRESENT A MAJOR POLICY
ISSUE, AND SINCE THE UNION NEITHER ALLEGES NOR DOES IT APPEAR, THAT THE
DECISION IS ARBITRARY AND CAPRICIOUS, THE UNION'S APPEAL FAILED TO MEET
THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.12 OF THE
COUNCIL'S RULES AND REGULATIONS (5 CFR 2411.12). ACCORDINGLY, THE
COUNCIL DENIED THE UNION'S PETITION FOR REVIEW.
DEAR MS. COOPER:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
IN THIS CASE, NFFE'S COMPLAINT ALLEGED THAT THE VETERANS
ADMINISTRATION, VETERANS ADMINISTRATION DATA PROCESSING CENTER, AUSTIN,
TEXAS (THE ACTIVITY) VIOLATED SECTION 19(A)(1) AND (2) OF THE ORDER BY
INTERFERING WITH A UNIT EMPLOYEE'S RIGHT TO DISCUSS A PROBLEM WITH THE
UNION PRESIDENT DURING THE EMPLOYEE'S COFFEE BREAK, AND BY REFERRING THE
EMPLOYEE TO HER AREA UNION STEWARD INSTEAD. NFFE'S COMPLAINT FURTHER
ALLEGED THAT THE ACTIVITY'S DIVISION CHIEF REFUSED TO MEET AND CONFER
WITH THE UNION STEWARD CONCERNING 39-HOUR POSITIONS AND HAD GIVEN
ERRONEOUS INFORMATION ON THESE POSITIONS TO THE UNION AT PREVIOUS
MEETINGS, IN VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER. THE
ASSISTANT SECRETARY, IN AGREEMENT WITH THE ASSISTANT REGIONAL DIRECTOR,
FOUND THAT A REASONABLE BASIS HAD NOT BEEN ESTABLISHED FOR NFFE'S
COMPLAINT. IN REJECTING NFFE'S ASSERTION THAT THE ALLEGATIONS CONTAINED
IN THE COMPLAINT ESTABLISHED PRIMA FACIE VIOLATIONS OF THE ORDER, AND
THAT THE ACTIVITY'S DENIALS CREATED CREDIBILITY ISSUES WARRANTING A
HEARING, THE ASSISTANT SECRETARY STATED:
(T)HE BARE ALLEGATIONS CONTAINED IN THE INSTANT COMPLAINT ARE DEVOID
OF ANY SUPPORTING
EVIDENCE SUCH AS SIGNED STATEMENTS BY ALLEGED DISCRIMINATEES OR BY
WITNESSES . . . IT HAS
LONG BEEN ESTABLISHED POLICY THAT TO WARRANT FURTHER PROCEEDINGS A
COMPLAINT MUST BE SUPPORTED
BY EVIDENCE, AND THAT THE BURDEN OF PROOF IS BORNE BY THE COMPLAINANT
AT ALL STAGES OF THE
UNFAIR LABOR PRACTICE PROCEEDING. IN THIS LATTER REGARD, SEE SECTION
203.6(E) OF THE
ASSISTANT SECRETARY'S REGULATIONS.
IN YOUR PETITION FOR REVIEW YOU CONTEND THAT FOUR MAJOR POLICY ISSUES
ARE PRESENTED BY THE DECISION OF THE ASSISTANT SECRETARY: (1) WHETHER
THE INTERFERENCE OF A SUPERVISOR IN AN EMPLOYEE'S SEEKING OF HELP FROM
THE UNION VIOLATED SECTION 19(A)(1) AND 19(A)(2) OF THE ORDER AND
WHETHER A SUPERVISOR MAY FORBID AN EMPLOYEE TO SPEAK WITH A PARTICULAR
UNION OFFICER DURING THE EMPLOYEE'S COFFEE BREAK; (2) WHETHER GIVING
THE UNION INCORRECT INFORMATION ON 39-HOUR EMPLOYEES VIOLATES THE ORDER
AND WHETHER REFUSING TO MEET AND CORRECT THIS INFORMATION AT A LATER
DATE VIOLATES THE ORDER; (3) WHETHER A REASONABLE BASIS WAS ESTABLISHED
FOR THE COMPLAINT; AND (4) WHETHER THE AREA OFFICE AND/OR REGIONAL
OFFICE OF THE DEPARTMENT OF LABOR MUST ALLOW TIME FOR AMENDMENT OR
WITHDRAWAL OF A COMPLAINT BEFORE IT IS DISMISSED BY THE ASSISTANT
SECRETARY.
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW DOES NOT MEET THE
REQUIREMENTS OF SECTION 2411.12 OF THE COUNCIL'S RULES; THAT IS, THE
DECISION OF THE ASSISTANT SECRETARY DOES NOT APPEAR TO PRESENT A MAJOR
POLICY ISSUE, AND YOU DO NOT ALLEGE, NOR DOES IT OTHERWISE APPEAR, THAT
HIS DECISION WAS ARBITRARY AND CAPRICIOUS.
SECTION 6(D) OF THE ORDER PROVIDES: "THE ASSISTANT SECRETARY SHALL
PRESCRIBE REGULATIONS NEEDED TO ADMINISTER HIS FUNCTIONS UNDER THIS
ORDER," ONE OF WHICH IS TO "DECIDE UNFAIR LABOR PRACTICE COMPLAINTS . .
. " PURSUANT TO SECTION 6(A)(4) OF THE ORDER. SECTION 203.8(A) OF THE
ASSISTANT SECRETARY'S REGULATIONS PROVIDES:
IF THE ASSISTANT REGIONAL DIRECTOR DETERMINES THAT . . . A REASONABLE
BASIS FOR THE
COMPLAINT HAS NOT BEEN ESTABLISHED, . . . HE MAY DISMISS THE
COMPLAINT.
FURTHER, SECTION 203.6(E) STATES:
THE COMPLAINANT SHALL BEAR THE BURDEN OF PROOF AT ALL STAGES OF THE
PROCEEDINGS, REGARDING
MATTERS ALLEGED IN ITS COMPLAINT . . .
AS THE COUNCIL PREVIOUSLY NOTED IN DEPARTMENT OF THE ARMY, INDIANA
ARMY AMMUNITION PLANT, CHARLESTOWN, INDIANA, FLRC NO. 74A-90 (MAY 9,
1975), REPORT NO. 69, THE FOREGOING REGULATIONS WERE PROMULGATED BY THE
ASSISTANT SECRETARY PURSUANT TO THE ORDER AND CONSISTENT WITH THE STUDY
COMMITTEE REPORT AND RECOMMENDATIONS, WHICH PROVIDES THAT "(I)F THE
ASSISTANT SECRETARY FINDS THAT . . . A REASONABLE BASIS FOR THE
COMPLAINT HAS NOT BEEN ESTABLISHED, . . . HE MAY DISMISS THE COMPLAINT."
HIS DECISION IN THE INSTANT CASE WAS BASED UPON THE APPLICATION OF THESE
REGULATIONS, AND YOUR PETITION PRESENTS NO PERSUASIVE REASONS TO SHOW
THAT THE ASSISTANT SECRETARY WAS WITHOUT AUTHORITY TO ESTABLISH THE
ABOVE REGULATIONS, OR THAT HE WRONGLY APPLIED THESE REGULATIONS TO THE
FACTS AND CIRCUMSTANCES OF THIS CASE. RATHER, YOUR CONTENTIONS ARE
ESSENTIALLY NOTHING MORE THAN DISAGREEMENT WITH THE ASSISTANT SECRETARY
OVER WHETHER THE ALLEGED FACTS WARRANT THE ISSUANCE OF A HEARING ORDER.
BECAUSE THE ASSISTANT SECRETARY'S DECISION DOES NOT PRESENT A MAJOR
POLICY ISSUE, AND YOU NEITHER ALLEGE, NOR DOES IT APPEAR, THAT HIS
DECISION IS ARBITRARY AND CAPRICIOUS, YOUR APPEAL FAILS TO MEET THE
REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.12 OF THE COUNCIL'S
RULES AND REGULATIONS. ACCORDINGLY, YOUR PETITION FOR REVIEW IS HEREBY
DENIED.
CC: A/SLMR
DEPT. OF LABOR
S. L. SHOCHET
VA
3 FLRC 607; FLRC NO. 75A-69; SEPTEMBER 18, 1975.
MS. JANET COOPER, STAFF ATTORNEY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
1737 H STREET, NW.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 75A-69
VETERANS ADMINISTRATION, VETERANS ADMINISTRATION DATA PROCESSING
CENTER, AUSTIN, TEXAS, ASSISTANT SECRETARY CASE NO. 63-5278 (CA). THE
ASSISTANT SECRETARY, IN AGREEMENT WITH THE ASSISTANT REGIONAL DIRECTOR,
FOUND THAT A REASONABLE BASIS HAD NOT BEEN ESTABLISHED FOR THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES' UNFAIR LABOR PRACTICE COMPLAINT, WHICH
ALLEGED THAT THE ACTIVITY VIOLATED SECTION 19(A)(1) AND (2) OF THE
ORDER, AND UPHELD THE ARD'S DISMISSAL OF THE COMPLAINT. THE UNION
APPEALED TO THE COUNCIL, CONTENDING THAT MAJOR POLICY ISSUES ARE
PRESENTED BY THE DECISION OF THE ASSISTANT SECRETARY.
COUNCIL ACTION (SEPTEMBER 18, 1975). THE COUNCIL HELD THAT BECAUSE
THE ASSISTANT SECRETARY'S DECISION DOES NOT PRESENT A MAJOR POLICY
ISSUE, AND SINCE THE UNION NEITHER ALLEGES, NOR DOES IT APPEAR, THAT THE
DECISION IS ARBITRARY AND CAPRICIOUS, THE UNION'S APPEAL FAILED TO MEET
THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.12 OF THE
COUNCIL'S RULES OF PROCEDURE (5 CFR 2411.12). ACCORDINGLY, THE COUNCIL
DENIED THE UNION'S PETITION FOR REVIEW.
DEAR MS. COOPER:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
THE ASSISTANT SECRETARY, IN AGREEMENT WITH THE ASSISTANT REGIONAL
DIRECTOR, FOUND THAT A REASONABLE BASIS HAD NOT BEEN ESTABLISHED FOR
NFFE'S COMPLAINT WHICH ALLEGED THAT THE VETERANS ADMINISTRATION,
VETERANS ADMINISTRATION DATA PROCESSING CENTER, AUSTIN, TEXAS (THE
ACTIVITY) VIOLATED SECTION 19(A)(1) AND (2) OF THE ORDER. NFFE'S
COMPLAINT WAS BASED UPON ITS ALLEGATIONS THAT MANAGEMENT HAD ENGAGED IN
SELECTIVE TREATMENT OF A UNIT EMPLOYEE BECAUSE OF HIS UNION ACTIVITIES,
SUCH TREATMENT CONSISTING OF VERBAL REPRIMANDS CONCERNING THE EMPLOYEE'S
USE OF THE TELEPHONE, AND BY ITS INTERFERENCE WITH THE EMPLOYEE'S
ATTEMPT TO DISCUSS THE MATTER WITH HIS UNION REPRESENTATIVE. IN
REJECTING NFFE'S ASSERTION THAT THE ALLEGATIONS CONTAINED IN THE
COMPLAINT ESTABLISHED PRIMA FACIE VIOLATIONS OF THE ORDER, AND THAT THE
ACTIVITY'S DENIALS CREATED CREDIBILITY ISSUES WARRANTING A HEARING, THE
ASSISTANT SECRETARY STATED:
(T)HE BARE ALLEGATIONS CONTAINED IN THE INSTANT COMPLAINT ARE DEVOID
OF ANY SUPPORTING
EVIDENCE SUCH AS SIGNED STATEMENTS BY ALLEGED DISCRIMINATEES OR BY
WITNESSES . . . IT HAS
LONG BEEN ESTABLISHED POLICY THAT TO WARRANT FURTHER PROCEEDINGS A
COMPLAINT MUST BE SUPPORTED
BY EVIDENCE, AND THAT THE BURDEN OF PROOF IS BORNE BY THE COMPLAINANT
AT ALL STAGES OF THE
UNFAIR LABOR PRACTICE PROCEEDING. IN THIS LATTER REGARD, SEE SECTION
203.6(E) OF THE
ASSISTANT SECRETARY'S REGULATIONS.
IN YOUR PETITION FOR REVIEW, YOU CONTEND THAT TWO MAJOR POLICY ISSUES
ARE PRESENTED BY THE DECISION OF THE ASSISTANT SECRETARY: (1) WHETHER
IN THE ABSENCE OF AGENCY EVIDENCE TO PROVE SIMILAR TREATMENT AN
ALLEGATION OF DISPARATE TREATMENT IS SUFFICIENT AS A REASONABLE BASIS
FOR THE COMPLAINT; AND (2) WHETHER THE SUPERVISOR'S STATEMENT ABOUT AN
EMPLOYEE AND HIMSELF "BEING SMART ENOUGH TO HANDLE THIS WITHOUT GOING TO
THE UNION" CONSTITUTES INTERFERENCE AND PROVIDES A REASONABLE BASIS FOR
A COMPLAINT.
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW DOES NOT MEET THE
REQUIREMENTS OF SECTION 2411.12 OF THE COUNCIL'S RULES; THAT IS, THE
DECISION OF THE ASSISTANT SECRETARY DOES NOT APPEAR TO PRESENT A MAJOR
POLICY ISSUE, AND YOU DO NOT ALLEGE, NOR DOES IT OTHERWISE APPEAR, THAT
HIS DECISION WAS ARBITRARY AND CAPRICIOUS.
SECTION 6(D) OF THE ORDER PROVIDES: "THE ASSISTANT SECRETARY SHALL
PRESCRIBE REGULATIONS NEEDED TO ADMINISTER HIS FUNCTIONS UNDER THIS
ORDER," ONE OF WHICH IS TO "DECIDE UNFAIR LABOR PRACTICE COMPLAINTS . .
. " PURSUANT TO SECTION 6(A)(4) OF THE ORDER. SECTION 203.8(A) OF THE
ASSISTANT SECRETARY'S REGULATIONS PROVIDES:
IF THE ASSISTANT REGIONAL DIRECTOR DETERMINES THAT . . . A REASONABLE
BASIS FOR THE
COMPLAINT HAS NOT BEEN ESTABLISHED, . . . HE MAY DISMISS THE
COMPLAINT.
FURTHER, SECTION 203.6(E) STATES:
THE COMPLAINANT SHALL BEAR THE BURDEN OF PROOF AT ALL STAGES OF THE
PROCEEDINGS, REGARDING
MATTERS ALLEGED IN ITS COMPLAINT . . .
AS THE COUNCIL PREVIOUSLY NOTED IN DEPARTMENT OF THE ARMY, INDIANA
ARMY AMMUNITION PLANT, CHARLESTOWN, INDIANA, FLRC NO. 74A-90 (MAY 9,
1975), REPORT NO. 69, THE FOREGOING REGULATIONS WERE PROMULGATED BY THE
ASSISTANT SECRETARY PURSUANT TO THE ORDER AND CONSISTENT WITH THE STUDY
COMMITTEE REPORT AND RECOMMENDATIONS, WHICH PROVIDES THAT "(I)F THE
ASSISTANT SECRETARY FINDS THAT . . . A REASONABLE BASIS FOR THE
COMPLAINT HAS NOT BEEN ESTABLISHED, . . . HE MAY DISMISS THE COMPLAINT."
HIS DECISION IN THE INSTANT CASE WAS BASED UPON THE APPLICATION OF THESE
REGULATIONS, AND YOUR PETITION PRESENTS NO PERSUASIVE REASONS TO SHOW
THAT THE ASSISTANT SECRETARY WAS WITHOUT AUTHORITY TO ESTABLISH THE
ABOVE REGULATIONS, OR THAT HE WRONGLY APPLIED THESE REGULATIONS TO THE
FACTS AND CIRCUMSTANCES OF THIS CASE. RATHER, YOUR CONTENTIONS ARE
ESSENTIALLY NOTHING MORE THAN DISAGREEMENT WITH THE ASSISTANT SECRETARY
OVER WHETHER THE ALLEGED FACTS WARRANT THE ISSUANCE OF A HEARING ORDER.
BECAUSE THE ASSISTANT SECRETARY'S DECISION DOES NOT PRESENT A MAJOR
POLICY ISSUE, AND YOU NEITHER ALLEGE, NOR DOES IT APPEAR, THAT HIS
DECISION IS ARBITRARY AND CAPRICIOUS, YOUR APPEAL FAILS TO MEET THE
REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.12 OF THE COUNCIL'S
RULES AND REGULATIONS. ACCORDINGLY, YOUR PETITION FOR REVIEW IS HEREBY
DENIED.
CC: A/SLMR
DEPT. OF LABOR
S. L. SHOCHET
VA
3 FLRC 604; FLRC NO. 75A-68; SEPTEMBER 18, 1975.
MS. JANET COOPER, STAFF ATTORNEY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
1737 H STREET, NW.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 75A-68
VETERANS ADMINISTRATION, VETERANS ADMINISTRATION DATA PROCESSING
CENTER, AUSTIN, TEXAS, ASSISTANT SECRETARY CASE NO. 63-5276 (CA). THE
ASSISTANT SECRETARY, IN AGREEMENT WITH THE ASSISTANT REGIONAL DIRECTOR,
FOUND THAT A REASONABLE BASIS HAD NOT BEEN ESTABLISHED FOR THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES' UNFAIR LABOR PRACTICE COMPLAINT, WHICH
ALLEGED THAT THE ACTIVITY VIOLATED SECTION 19(A)(1) AND (2) OF THE
ORDER, AND UPHELD THE ARD'S DISMISSAL OF THE COMPLAINT. THE UNION
APPEALED TO THE COUNCIL, CONTENDING THAT THE DECISION OF THE ASSISTANT
SECRETARY PRESENTS A MAJOR POLICY ISSUE.
COUNCIL ACTION (SEPTEMBER 18, 1975). THE COUNCIL HELD THAT BECAUSE
THE ASSISTANT SECRETARY'S DECISION DOES NOT PRESENT A MAJOR POLICY
ISSUE, AND SINCE THE UNION NEITHER ALLEGES, NOR DOES IT APPEAR, THAT THE
DECISION IS ARBITRARY AND CAPRICIOUS, THE UNION'S APPEAL FAILED TO MEET
THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.12 OF THE
COUNCIL'S RULES AND REGULATIONS (5 CFR 2411.12).
DEAR MS. COOPER:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
THE ASSISTANT SECRETARY, IN AGREEMENT WITH THE ASSISTANT REGIONAL
DIRECTOR, FOUND THAT A REASONABLE BASIS HAD NOT BEEN ESTABLISHED FOR
NFFE'S COMPLAINT WHICH ALLEGED THAT THE VETERANS ADMINISTRATION,
VETERANS ADMINISTRATION DATA PROCESSING CENTER, AUSTIN, TEXAS (THE
ACTIVITY) VIOLATED SECTION 19(A)(1) AND (2) OF THE ORDER. NFFE'S
COMPLAINT WAS BASED UPON ITS ALLEGATIONS THAT A DIVISION SUPERVISOR
HARASSED A UNION STEWARD BY ENGAGING IN DISPARATE TREATMENT CONSISTING
OF "COLD SHOULDER" TREATMENT AND THE KEEPING OF RECORDS AS TO WHAT TIME
THE UNION OFFICIAL CAME TO WORK, AND THE AMOUNT OF TIME SPENT AT LUNCH
AND ON THE TELEPHONE, WHEN NO SUCH RECORDS WERE KEPT FOR OTHER DIVISION
EMPLOYEES. IN REJECTING NFFE'S ASSERTION THAT THE ALLEGATIONS CONTAINED
IN THE COMPLAINT ESTABLISHED PRIMA FACIE VIOLATIONS OF THE ORDER, AND
THAT THE ACTIVITY'S DENIALS CREATED CREDITIBILITY ISSUES WARRANTING A
HEARING, THE ASSISTANT SECRETARY STATED:
(T)HE BARE ALLEGATIONS CONTAINED IN THE INSTANT COMPLAINT ARE DEVOID
OF ANY SUPPORTING
EVIDENCE SUCH AS SIGNED STATEMENTS BY ALLEGED DISCRIMINATEES OR BY
WITNESSES . . . IT HAS
LONG BEEN ESTABLISHED POLICY THAT TO WARRANT FURTHER PROCEEDINGS A
COMPLAINT MUST BE SUPPORTED
BY EVIDENCE, AND THAT THE BURDEN OF PROOF IS BORNE BY THE COMPLAINANT
AT ALL STAGES OF THE
UNFAIR LABOR PRACTICE PROCEEDING. IN THIS LATTER REGARD, SEE SECTION
203.6(E) OF THE
ASSISTANT SECRETARY'S REGULATIONS.
IN YOUR PETITION FOR REVIEW YOU CONTEND THAT THE DISMISSAL OF NFFE'S
COMPLAINT PRESENTS A MAJOR POLICY ISSUE AS TO, "WHETHER IN THE ABSENCE
OF AGENCY EVIDENCE THAT OTHER EMPLOYEES WERE TREATED IN THE SAME MANNER
AS THE DIVISION (UNION) STEWARD, UNION ALLEGATIONS THAT THE TREATMENT
WAS DISPARATE FOR HER ARE A SUFFICIENT BASIS FOR THE COMPLAINT?" IN
SUPPORT FOR THIS CONTENTION, YOU ASSERT THAT THE VERY SPECIFIC
ALLEGATIONS OF THE COMPLAINT REQUIRED MANAGEMENT TO COME FORWARD WITH
EVIDENCE FROM ITS RECORDS TO PROVE THAT OTHER EMPLOYEES WERE TREATED IN
THE SAME MANNER AS THE UNION STEWARD, AND THAT A SIMPLE DENIAL OF
WRONGDOING IS NOT "A SUFFICIENT BASIS FOR THE DISMISSAL OF THE
COMPLAINT."
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW DOES NOT MEET THE
REQUIREMENTS OF SECTION 2411.12 OF THE COUNCIL'S RULES; THAT IS, THE
DECISION OF THE ASSISTANT SECRETARY DOES NOT APPEAR TO PRESENT A MAJOR
POLICY ISSUE, AND YOU DO NOT ALLEGE, NOR DOES IT OTHERWISE APPEAR, THAT
HIS DECISION WAS ARBITRARY AND CAPRICIOUS.
SECTION 6(D) OF THE ORDER PROVIDES: "THE ASSISTANT SECRETARY SHALL
PRESCRIBE REGULATIONS NEEDED TO ADMINISTER HIS FUNCTIONS UNDER THIS
ORDER," ONE OF WHICH IS TO "DECIDE UNFAIR LABOR PRACTICE COMPLAINTS . .
. " PURSUANT TO SECTION 6(A)(4) OF THE ORDER. SECTION 203.8(A) OF THE
ASSISTANT SECRETARY'S REGULATIONS PROVIDES:
IF THE ASSISTANT REGIONAL DIRECTOR DETERMINED THAT . . . A REASONABLE
BASIS FOR THE
COMPLAINT HAS NOT BEEN ESTABLISHED, . . . HE MAY DISMISS THE
COMPLAINT.
FURTHER, SECTION 203.6(E) STATES:
THE COMPLAINANT SHALL BEAR THE BURDEN OF PROOF AT ALL STAGES OF THE
PROCEEDINGS, REGARDING
MATTERS ALLEGED IN ITS COMPLAINT . . .
AS THE COUNCIL PREVIOUSLY NOTED IN DEPARTMENT OF THE ARMY, INDIANA
ARMY AMMUNITION PLANT, CHARLESTOWN, INDIANA, FLRC NO. 74A-90 (MAY 9,
1975), REPORT NO. 69, THE FOREGOING REGULATIONS WERE PROMULGATED BY THE
ASSISTANT SECRETARY PURSUANT TO THE ORDER AND CONSISTENT WITH THE STUDY
COMMITTEE REPORT AND RECOMMENDATIONS, WHICH PROVIDES THAT "(I)F THE
ASSISTANT SECRETARY FINDS THAT . . . A REASONABLE BASIS FOR THE
COMPLAINT HAS NOT BEEN ESTABLISHED, . . . HE MAY DISMISS THE COMPLAINT."
HIS DECISION IN THE INSTANT CASE WAS BASED UPON THE APPLICATION OF THESE
REGULATIONS, AND YOUR PETITION PRESENTS NO PERSUASIVE REASONS TO SHOW
THAT THE ASSISTANT SECRETARY WAS WITHOUT AUTHORITY TO ESTABLISH THE
ABOVE REGULATIONS, OR THAT HE WRONGLY APPLIED THESE REGULATIONS TO THE
FACTS AND CIRCUMSTANCES OF THIS CASE. RATHER, YOUR CONTENTIONS ARE
ESSENTIALLY NOTHING MORE THAN DISAGREEMENT WITH THE ASSISTANT SECRETARY
OVER WHETHER THE ALLEGED FACTS WARRANT THE ISSUANCE OF A HEARING ORDER.
BECAUSE THE ASSISTANT SECRETARY'S DECISION DOES NOT PRESENT A MAJOR
POLICY ISSUE, AND YOU NEITHER ALLEGE, NOR DOES IT APPEAR, THAT HIS
DECISION IS ARBITRARY AND CAPRICIOUS, YOUR APPEAL FAILS TO MEET THE
REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.12 OF THE COUNCIL'S
RULES AND REGULATIONS. ACCORDINGLY, YOUR PETITION FOR REVIEW IS HEREBY
DENIED.
CC: A/SLMR
DEPT. OF LABOR
S. L. SHOCHET
VA
3 FLRC 601; FLRC NO. 75A-67; SEPTEMBER 18, 1975.
MS. JANET COOPER, STAFF ATTORNEY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
1737 H STREET, NW.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 75A-67
VETERANS ADMINISTRATION, VETERANS ADMINISTRATION DATA PROCESSING
CENTER, AUSTIN, TEXAS, ASSISTANT SECRETARY CASE NO. 63-5288 (CA). IN
AGREEMENT WITH THE ASSISTANT REGIONAL DIRECTOR, THE ASSISTANT SECRETARY
FOUND THAT A REASONABLE BASIS HAD NOT BEEN ESTABLISHED FOR THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES' UNFAIR LABOR PRACTICE COMPLAINT, WHICH
ALLEGED THAT THE ACTIVITY VIOLATED SECTION 19(A)(6) OF THE ORDER, AND
UPHELD THE ARD'S DISMISSAL OF THE COMPLAINT. THE UNION APPEALED TO THE
COUNCIL, CONTENDING THAT THE ASSISTANT SECRETARY'S DECISION PRESENTS
MAJOR POLICY ISSUES.
COUNCIL ACTION (SEPTEMBER 18, 1975). THE COUNCIL HELD THAT BECAUSE
THE ASSISTANT SECRETARY'S DECISION DOES NOT PRESENT A MAJOR POLICY
ISSUE, AND THE UNION NEITHER ALLEGES, NOR DOES IT APPEAR, THAT THE
DECISION IS ARBITRARY AND CAPRICIOUS, THE UNION'S APPEAL FAILED TO MEET
THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.12 OF THE
COUNCIL'S RULES AND REGULATIONS (5 CFR 2411.12). ACCORDINGLY, THE
COUNCIL DENIED THE UNION'S PETITION FOR REVIEW.
DEAR MS. COOPER:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
IN AGREEMENT WITH THE ASSISTANT REGIONAL DIRECTOR, THE ASSISTANT
SECRETARY FOUND THAT A REASONABLE BASIS HAD NOT BEEN ESTABLISHED FOR
NFFE'S COMPLAINT WHICH ALLEGED THAT THE VETERANS ADMINISTRATION,
VETERANS ADMINISTRATION DATA PROCESSING CENTER, AUSTIN, TEXAS (THE
ACTIVITY) VIOLATED SECTION 19(A)(6) OF THE ORDER. NFFE'S COMPLAINT WAS
BASED UPON ITS ALLEGATIONS THAT A MANAGER AT THE ACTIVITY POSTED A
UNILATERAL COMMUNICATION CONCERNING "39-HOUR EMPLOYEES" DESPITE A
PREVIOUS ORAL AGREEMENT WITH NFFE THAT THERE WOULD BE A JOINT
COMMUNICATION; UNILATERALLY CHANGED A PREVIOUSLY PREPARED JOINT
COMMUNICATION BEFORE POSTING IT; AND FALSELY STATED PUBLICLY TO THE
EMPLOYEES THAT NFFE HAD AGREED TO THE MANAGER'S "NEWLY CONCEIVED" POLICY
CONCERNING THE METHOD OF FILLING NEW POSITIONS AT THE ACTIVITY. IN
REJECTING NFFE'S ASSERTION THAT THE ALLEGATIONS CONTAINED IN THE
COMPLAINT ESTABLISHED PRIMA FACIE VIOLATIONS OF THE ORDER, AND THAT THE
ACTIVITY'S DENIALS CREATED CREDIBILITY ISSUES WARRANTING A HEARING, THE
ASSISTANT SECRETARY STATED:
(T)HE BARE ALLEGATIONS CONTAINED IN THE INSTANT COMPLAINT ARE DEVOID
OF ANY SUPPORTING
EVIDENCE SUCH AS SIGNED STATEMENTS BY ALLEGED DISCRIMINATEES OR BY
WITNESSES . . . IT HAS
LONG BEEN ESTABLISHED POLICY THAT TO WARRANT FURTHER PROCEEDINGS A
COMPLAINT MUST BE SUPPORTED
BY EVIDENCE, AND THAT THE BURDEN OF PROOF IS BORNE BY THE COMPLAINANT
AT ALL STAGES OF THE
UNFAIR LABOR PRACTICE PROCEEDING. IN THIS LATTER REGARD, SEE SECTION
203.6(E) OF THE
ASSISTANT SECRETARY'S REGULATIONS.
IN YOUR PETITION FOR REVIEW, YOU CONTEND THAT THE DISMISSAL OF NFFE'S
COMPLAINT RAISES THREE MAJOR POLICY ISSUES: (1) MUST AGREEMENTS ARRIVED
AT DURING DAILY UNION-MANAGEMENT CONSULTATION SESSIONS BE REDUCED TO
WRITING TO BE ENFORCEABLE UNDER THE ORDER? (2) ARE UNILATERAL
COMMUNICATIONS WITH EMPLOYEES ON PERSONNEL POLICIES VIOLATIVE OF THE
ORDER? (3) DOES A MANAGER HAVE THE DUTY TO ACT EXPEDITIOUSLY AND TO
MAKE CONSISTENT STATEMENTS DURING HIS DEALINGS WITH THE UNION?
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW DOES NOT MEET THE
REQUIREMENTS OF SECTION 2411.12 OF THE COUNCIL'S RULES; THAT IS, THE
DECISION OF THE ASSISTANT SECRETARY DOES NOT APPEAR TO PRESENT A MAJOR
POLICY ISSUE, AND YOU DO NOT ALLEGE, NOR DOES IT OTHERWISE APPEAR, THAT
HIS DECISION WAS ARBITRARY AND CAPRICIOUS.
SECTION 6(D) OF THE ORDER PROVIDES: "THE ASSISTANT SECRETARY SHALL
PRESCRIBE REGULATIONS NEEDED TO ADMINISTER HIS FUNCTIONS UNDER THIS
ORDER," ONE OF WHICH IS TO "DECIDE UNFAIR LABOR PRACTICE COMPLAINTS . .
. " PURSUANT TO SECTION 6(A)(4) OF THE ORDER. SECTION 203.8(A) OF THE
ASSISTANT SECRETARY'S REGULATIONS PROVIDES:
IF THE ASSISTANT REGIONAL DIRECTOR DETERMINES THAT . . . A REASONABLE
BASIS FOR THE
COMPLAINT HAS NOT BEEN ESTABLISHED, . . . HE MAY DISMISS THE
COMPLAINT.
FURTHER, SECTION 203.6(E) STATES:
THE COMPLAINANT SHALL BEAR THE BURDEN OF PROOF AT ALL STAGES OF THE
PROCEEDINGS, REGARDING
MATTERS ALLEGED IN ITS COMPLAINT . . .
AS THE COUNCIL PREVIOUSLY NOTED IN DEPARTMENT OF THE ARMY, INDIANA
ARMY AMMUNITION PLANT, CHARLESTON, INDIANA, FLRC NO. 74A-90 (MAY 9,
1975), REPORT NO. 69, THE FOREGOING REGULATIONS WERE PROMULGATED BY THE
ASSISTANT SECRETARY PURSUANT TO THE ORDER AND CONSISTENT WITH THE STUDY
COMMITTEE REPORT AND RECOMMENDATIONS, WHICH PROVIDES THAT "(I)F THE
ASSISTANT SECRETARY FINDS THAT . . . A REASONABLE BASIS FOR THE
COMPLAINT HAS NOT BEEN ESTABLISHED, . . . HE MAY DISMISS THE COMPLAINT."
HIS DECISION IN THE INSTANT CASE WAS BASED UPON THE APPLICATION OF THESE
REGULATIONS, AND YOUR PETITION PRESENTS NO PERSUASIVE REASONS TO SHOW
THAT THE ASSISTANT SECRETARY WAS WITHOUT AUTHORITY TO ESTABLISH THE
ABOVE REGULATIONS, OR THAT HE WRONGLY APPLIED THESE REGULATIONS TO THE
FACTS AND CIRCUMSTANCES OF THIS CASE. RATHER, YOUR CONTENTIONS ARE
ESSENTIALLY NOTHING MORE THAN DISAGREEMENT WITH THE ASSISTANT SECRETARY
OVER WHETHER THE ALLEGED FACTS WARRANT THE ISSUANCE OF A HEARING ORDER.
BECAUSE THE ASSISTANT SECRETARY'S DECISION DOES NOT PRESENT A MAJOR
POLICY ISSUE, AND YOU NEITHER ALLEGE, NOR DOES IT APPEAR, THAT HIS
DECISION IS ARBITRARY AND CAPRICIOUS, YOUR APPEAL FAILS TO MEET THE
REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.12 OF THE COUNCIL'S
RULES AND REGULATIONS. ACCORDINGLY, YOUR PETITION FOR REVIEW IS HEREBY
DENIED.
CC: A/SLMR
DEPT. OF LABOR
S. L. SHOCHET
VA
3 FLRC 598; FLRC NO. 75A-60; SEPTEMBER 18, 1975.
MR. DONALD R. PAQUETTE
9 FLO DRIVE
SYOSSET, NEW YORK 11791
(SYNOPSIS) FLRC NO. 75A-60
DEPARTMENT OF COMMERCE, U.S. MERCHANT MARINE ACADEMY, ASSISTANT
SECRETARY CASE NO. 30-5585 (CA). THE ASSISTANT SECRETARY DENIED THE
REQUEST OF THE INDIVIDUAL COMPLAINANT (DONALD R. PAQUETTE) FOR REVERSAL
OF THE ACTING ASSISTANT REGIONAL DIRECTOR'S DISMISSAL OF THE UNFAIR
LABOR PRACTICE COMPLAINT, WHICH ALLEGED THAT THE ACTIVITY VIOLATED
SECTION 19(A)(1) AND (6) OF THE ORDER IN UNILATERALLY PROMULGATING
REVISED QUALIFICATION STANDARDS FOR FACULTY PROMOTION IN 1969 TO
SUPERSEDE 1966 QUALIFICATION STANDARDS. THE COMPLAINANT APPEALED TO THE
COUNCIL, CONTENDING THAT THE ASSISTANT SECRETARY'S DECISION PRESENTS A
MAJOR POLICY ISSUE AND IS ARBITRARY AND CAPRICIOUS.
COUNCIL ACTION (SEPTEMBER 18, 1975). THE COUNCIL HELD THAT THE
COMPLAINANT'S PETITION FOR REVIEW DOES NOT MEET THE REQUIREMENTS OF THE
COUNCIL'S RULES GOVERNING REVIEW; THAT IS, IN THE CIRCUMSTANCES
PRESENTED, THE DECISION OF THE ASSISTANT SECRETARY DOES NOT PRESENT A
MAJOR POLICY ISSUE NOR DOES IT APPEAR ARBITRARY AND CAPRICIOUS.
ACCORDINGLY, THE COUNCIL DENIED REVIEW OF THE COMPLAINANT'S APPEAL SINCE
IT FAILED TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED UNDER SECTION
2411.12 OF THE COUNCIL'S RULES OF PROCEDURE (5 CFR 2411.12).
DEAR MR. PAQUETTE:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION, AND THE AGENCY'S OPPOSITION THERETO, IN
THE ABOVE-ENTITLED CASE.
ACCORDING TO YOUR PETITION FOR REVIEW FILED WITH THE COUNCIL, YOUR
COMPLAINT IN THIS CASE ALLEGED THAT THE U.S. MERCHANT MARINE ACADEMY
(THE ACTIVITY) VIOLATED SECTION 19(A)(1) AND (6) OF EXECUTIVE ORDER
11491. SPECIFICALLY, YOU ALLEGE THAT THE ACTIVITY UNILATERALLY
PROMULGATED REVISED QUALIFICATION STANDARDS FOR FACULTY PROMOTION IN
1969 TO SUPERSEDE 1966 QUALIFICATION STANDARDS. YOU CONTEND THAT THE
1966 STANDARDS WERE IN EFFECT AND REFERRED TO "BY INFERENCE" IN THE
NEGOTIATED AGREEMENT EXECUTED IN 1968 BETWEEN THE ACTIVITY AND USMA
CHAPTER, UNITED FEDERATION OF COLLEGE TEACHERS, LOCAL 1460, AFT, AFL-CIO
(THE UNION) AND THAT THE REVISED STANDARDS WERE APPLIED TO REJECT YOUR
"APPLICATION FOR PROMOTION" IN 1974 ON THE GROUNDS THAT YOU WERE
INELIGIBLE FOR CONSIDERATION THEREUNDER. ACCORDING TO THE FINDINGS OF
THE ASSISTANT SECRETARY, HAD THE 1966 STANDARDS BEEN APPLIED, YOU WOULD
HAVE QUALIFIED FOR PROMOTION TO PROFESSOR.
THE ASSISTANT SECRETARY DENIED YOUR REQUEST FOR REVERSAL OF THE
ACTING ASSISTANT REGIONAL DIRECTOR'S DISMISSAL OF YOUR COMPLAINT. IN SO
DOING, HE FOUND THAT THE 1969 QUALIFICATION STANDARDS WERE FORMULATED IN
ACCORDANCE WITH MARITIME ADMINISTRATOR'S ORDER NO. 181(A) AND
SUPERSEDED THE 1966 QUALIFICATION STANDARDS. THE ASSISTANT SECRETARY
FURTHER STATED THAT, EVEN ASSUMING THE 1969 REVISIONS WERE ADOPTED
UNILATERALLY, NO FINDING OF A VIOLATION COULD BE MADE SINCE YOUR CHARGE
AND COMPLAINT WERE UNTIMELY FILED IN RELATION TO SUCH CONDUCT UNDER
SECTION 203.2 OF HIS REGULATIONS.
IN YOUR PETITION FOR REVIEW, YOU CONTEND THAT THE ASSISTANT
SECRETARY'S DECISION PRESENTS A MAJOR POLICY ISSUE AS TO WHAT
CONSTITUTES "TERMS OF A NEGOTIATED AGREEMENT," AND THAT IT WAS
ERRONEOUSLY CONCLUDED THAT THE 1966 QUALIFICATION STANDARDS WERE NOT
PART OF THE 1968 NEGOTIATED AGREEMENT BETWEEN THE ACTIVITY AND THE
UNION. YOU ALSO CONTEND, IN ESSENCE, THAT THE DECISION OF THE ASSISTANT
SECRETARY THAT THE 1969 QUALIFICATION STANDARDS WERE PROPERLY ADOPTED IS
ARBITRARY AND INCONSISTENT WITH THE PURPOSES OF SECTIONS 11 AND 12 OF
THE ORDER. FINALLY YOU ALLEGE THAT THE FINDING OF THE ASSISTANT
SECRETARY THAT THE COMPLAINT WAS UNTIMELY FILED IS ARBITRARY AND
CAPRICIOUS SINCE THE UNFAIR LABOR PRACTICE OCCURRED IN 1974 WHEN YOUR
RIGHTS WERE VIOLATED BY THE ACTIVITY'S REFUSAL TO APPLY THE 1966
QUALIFICATION STANDARDS TO YOUR APPLICATION FOR PROMOTION.
IN THE COUNCIL'S VIEW, YOUR PETITION FOR REVIEW OF THE ASSISTANT
SECRETARY'S DECISION DOES NOT MEET THE REQUIREMENTS OF THE COUNCIL'S
RULES GOVERNING REVIEW; THAT IS, THE DECISION OF THE ASSISTANT
SECRETARY DOES NOT PRESENT A MAJOR POLICY ISSUE NOR DOES IT APPEAR
ARBITRARY AND CAPRICIOUS. WITH RESPECT TO THE ALLEGED MAJOR POLICY
ISSUE, THE COUNCIL IS OF THE OPINION THAT IN THE CIRCUMSTANCES
PRESENTED, NOTING YOUR STATEMENT THAT THE QUALIFICATION STANDARDS AT
ISSUE HERE ARE ONLY REFERRED TO (BY INFERENCE) IN THE NEGOTIATED
PROCEDURES FOR PROMOTION, AND THE ASSISTANT SECRETARY'S FINDING THAT
THESE STANDARDS HAD NOT BEEN MADE PART OF THE AGREED UPON PROMOTION
PROCEDURES WHEN THE PARTIES EXECUTED THE CONTRACT AND THEREFORE HAD NOT
BECOME A SUBJECT FOR NEGOTIATION OR PART OF THE LABOR AGREEMENT AT THAT
TIME, THE SUBJECT DECISION DOES NOT RAISE A MAJOR POLICY ISSUE
WARRANTING COUNCIL REVIEW. MOREOVER, WITH RESPECT TO YOUR CONTENTION
THAT THE ASSISTANT SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS, IT
DOES NOT APPEAR THAT HIS CONCLUSION THAT THE 1969 STANDARDS WERE
PROPERLY ADOPTED WAS WITHOUT REASONABLE JUSTIFICATION, PARTICULARLY IN
LIGHT OF HIS FINDINGS THAT THERE IS NO EVIDENCE THAT THE UNION EVER
SOUGHT TO NEGOTIATE THE PROCEDURE BY WHICH QUALIFICATION STANDARDS ARE
FORMULATED; THAT ALL THAT THE UNION EVER REQUESTED WAS "APPROPRIATE
CONSULTATION AND DISCUSSION" OF THE PROPOSED CHANGES; AND THAT THERE IS
EVIDENCE THAT UNION PROPOSALS WERE SOLICITED AND CONSIDERED AT VARIOUS
TIMES BEFORE THE REVISED STANDARDS WERE ISSUED.
ACCORDINGLY, WITHOUT CONSIDERING WHETHER THE 1969 QUALIFICATION
STANDARDS WERE PROMULGATED PURSUANT TO EXECUTIVE ORDER 10988, WHICH WAS
IN EFFECT AT THAT TIME, AND WITHOUT REACHING OR PASSING UPON THE
ASSISTANT SECRETARY'S FINDING CONCERNING THE TIMELINESS OF YOUR CHARGE
AND COMPLAINT, REVIEW OF YOUR APPEAL IS HEREBY DENIED SINCE IT FAILS TO
MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED UNDER SECTION 2411.12 OF
THE COUNCIL'S RULES OF PROCEDURE.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
E. BEE
COMMERCE
3 FLRC 595; FLRC NO. 75A-57; SEPTEMBER 18, 1975.
MR. JACK L. COPESS
HAWAII FEDERAL EMPLOYEES METAL
TRADES COUNCIL
925 BETHEL STREET, ROOM 210
HONOLULU, HAWAII 96813
(SYNOPSIS) FLRC NO. 75A-57
DEPARTMENT OF THE NAVY, PEARL HARBOR NAVAL SHIPYARD, ASSISTANT
SECRETARY CASE NO. 73-587 (CA). THE ASSISTANT SECRETARY, NOTING THAT
SECTION 19(D) OF THE ORDER PROHIBITS CONSIDERATION OF THE ALLEGATIONS
RAISED IN THE HAWAII FEDERAL EMPLOYEES METAL TRADES COUNCIL'S 19(A)(1)
AND (2) UNFAIR LABOR PRACTICE COMPLAINT, SINCE THE EVIDENCE ESTABLISHED
THAT THE ALLEGATIONS HAD BEEN RAISED PREVIOUSLY UNDER A NEGOTIATED
GRIEVANCE PROCEDURE, AND THAT MATTERS RAISED FOR THE FIRST TIME IN A
REQUEST FOR REVIEW CANNOT BE CONSIDERED BY THE ASSISTANT SECRETARY,
DENIED THE UNION'S REQUEST FOR REVIEW SEEKING REVERSAL OF THE ASSISTANT
REGIONAL DIRECTOR'S DISMISSAL OF THE COMPLAINT. THE UNION APPEALED TO
THE COUNCIL, CONTENDING THAT THE ASSISTANT SECRETARY'S DECISION IS
ARBITRARY AND CAPRICIOUS.
COUNCIL ACTION (SEPTEMBER 18, 1975). THE COUNCIL FOUND THAT THE
UNION'S PETITION FOR REVIEW DOES NOT MEET THE REQUIREMENTS FOR REVIEW
SET FORTH IN SECTION 2411.12 OF THE COUNCIL'S RULES (5 CFR 2411.12);
THAT IS, THE DECISION OF THE ASSISTANT SECRETARY DOES NOT APPEAR IN ANY
MANNER ARBITRARY AND CAPRICIOUS, AND THE UNION DOES NOT ALLEGE, NOR DOES
IT OTHERWISE APPEAR, THAT A MAJOR POLICY ISSUE IS PRESENTED.
ACCORDINGLY, SINCE THE UNION'S APPEAL FAILED TO MEET THE REQUIREMENTS
FOR REVIEW IN THE COUNCIL'S RULES OF PROCEDURE, THE COUNCIL DENIED
REVIEW OF THE APPEAL.
DEAR MR. COPESS:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW IN THE
ABOVE-ENTITLED CASE.
IN THIS CASE, THE CHIEF STEWARD OF THE HAWAII FEDERAL EMPLOYEES METAL
TRADES COUNCIL, AFL-CIO (THE UNION) FILED A GRIEVANCE PROTESTING A 5-DAY
SUSPENSION THAT HE HAD RECEIVED FOR ALLEGEDLY REFUSING TO OBEY A
SUPERVISOR'S ORDER. THEREAFTER, THE UNION FILED AN UNFAIR LABOR
PRACTICE COMPLAINT ALLEGING THAT THE DEPARTMENT OF THE NAVY, PEARL
HARBOR NAVAL SHIPYARD (THE ACTIVITY) VIOLATED SECTION 19(A)(1) AND (2)
OF THE ORDER BY ITS SUSPENSION OF THE CHIEF STEWARD. THE ASSISTANT
SECRETARY, IN AGREEMENT WITH THE ASSISTANT REGIONAL DIRECTOR ARD), FOUND
THAT FURTHER PROCEEDINGS IN THE MATTER WERE NOT WARRANTED. THE
ASSISTANT SECRETARY NOTING THE CONCLUSION THAT SECTION 19(D) OF THE
ORDER PROHIBITS THE CONSIDERATION OF THE ALLEGATIONS RAISED IN THE
COMPLAINT AS THE EVIDENCE ESTABLISHES THAT SUCH ALLEGATIONS HAVE BEEN
RAISED PREVIOUSLY UNDER A NEGOTIATED GRIEVANCE PROCEDURE, AND THAT
MATTERS RAISED FOR THE FIRST TIME IN A REQUEST FOR REVIEW CANNOT BE
CONSIDERED BY THE ASSISTANT SECRETARY, DENIED YOUR REQUEST FOR REVIEW
SEEKING REVERSAL OF THE ASSISTANT REGIONAL DIRECTOR'S DISMISSAL OF THE
COMPLAINT.
IN YOUR PETITION FOR REVIEW, YOU CONTEND THAT THE ASSISTANT
SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS BECAUSE THE ASSISTANT
SECRETARY "IMPROPERLY AND ILLOGICALLY" CONCLUDED, ON THE BASIS OF THE
EVIDENCE PRESENTED, THAT FURTHER CONSIDERATION OF THE COMPLAINT WAS
PROHIBITED BY SECTION 19(D). IN THIS CONNECTION, YOU ALLEGE THAT THE
GRIEVANCE FILED BY THE CHIEF STEWARD NEITHER MENTIONED NOR SOUGHT
REDRESS FOR THE DENIAL OF HIS RIGHTS UNDER THE ORDER, AND THAT THE
DISCUSSIONS WHICH OCCURRED AT THE THIRD STEP OF THE GRIEVANCE PROCEDURE
THEREFORE DID NOT INVOLVE THE SAME ISSUES RAISED IN THE UNFAIR LABOR
PRACTICE COMPLAINT. YOU FURTHER CONTEND THAT THE ASSISTANT SECRETARY'S
DECISION HEREIN IS INCONSISTENT WITH HIS RULING IN A PRIOR CASE
INVOLVING THE SAME PARTIES. FINALLY, YOU ASSERT THAT THE ASSISTANT
SECRETARY WAS ARBITRARY AND CAPRICIOUS IN AMBIGUOUSLY STATING THAT HE
COULD NOT CONSIDER MATTERS RAISED FOR THE FIRST TIME IN A REQUEST FOR
REVIEW WITHOUT SPECIFYING THE MATTERS TO WHICH HE REFERRED.
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW DOES NOT MEET THE
REQUIREMENTS OF SECTION 2411.12 OF THE COUNCIL'S RULES. THAT IS, THE
DECISION OF THE ASSISTANT SECRETARY DOES NOT APPEAR IN ANY MANNER
ARBITRARY AND CAPRICIOUS, AND YOU DO NOT ALLEGE, NOR DOES IT OTHERWISE
APPEAR, THAT A MAJOR POLICY ISSUE IS PRESENTED. WITH RESPECT TO YOUR
CONTENTION THAT THE ASSISTANT SECRETARY'S DECISION WAS ARBITRARY AND
CAPRICIOUS, IT DOES NOT APPEAR IN THE CIRCUMSTANCES OF THIS CASE THAT
THE ASSISTANT SECRETARY ACTED WITHOUT REASONABLE JUSTIFICATION IN
REACHING THE CONCLUSION THAT FURTHER CONSIDERATION OF THE UNION'S
COMPLAINT WAS BARRED BY SECTION 19(D) OF THE ORDER, NOR IS SUCH
DETERMINATION INCONSISTENT WITH HIS PREVIOUS DECISIONS. FURTHERMORE,
YOUR CONTENTION THAT THE ASSISTANT SECRETARY "IMPROPERLY AND
ILLOGICALLY" CONCLUDED THAT SECTION 19(D) OF THE ORDER PRECLUDED FURTHER
CONSIDERATION OF THE COMPLAINT CONSTITUTES, IN EFFECT, NOTHING MORE THAN
DISAGREEMENT WITH THE ASSISTANT SECRETARY'S FACTUAL FINDINGS MADE IN
CONNECTION WITH HIS APPLICATION OF SECTION 19(D) HEREIN, AND THEREFORE
DOES NOT PRESENT A BASIS FOR COUNCIL REVIEW. FURTHER, THE ASSISTANT
SECRETARY'S DETERMINATION WITH RESPECT TO MATTERS RAISED FOR THE FIRST
TIME IN YOUR REQUEST FOR REVIEW IS CONSISTENT WITH HIS REGULATIONS AND
PAST DECISIONS.
ACCORDINGLY, YOUR APPEAL FAILS TO MEET THE REQUIREMENTS FOR REVIEW
SET FORTH IN SECTION 2411.12 OF THE COUNCIL'S RULES OF PROCEDURE, AND
REVIEW OF YOUR APPEAL IS HEREBY DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
S. M. FOSS
NAVY
3 FLRC 591; FLRC NO. 75A-43; SEPTEMBER 18, 1975.
MR. THOMAS J. O'ROURKE, STAFF ASSISTANT
OFFICE OF THE REGIONAL COUNSEL
INTERNAL REVENUE SERVICE
ROOM 1682
35 EAST WACKER DRIVE
CHICAGO, ILLINOIS 60601
(SYNOPSIS) FLRC NO. 75A-43
INTERNAL REVENUE SERVICE, OMAHA DISTRICT OFFICE, ASSISTANT SECRETARY
CASE NO. 60-3722 (G&A). THE ASSISTANT SECRETARY, IN AGREEMENT WITH THE
ASSISTANT REGIONAL DIRECTOR, FOUND THAT THE NATIONAL TREASURY EMPLOYEES
UNION'S GRIEVANCES INVOLVED MATTERS CONCERNING THE INTERPRETATION AND
APPLICATION OF THE PARTIES' AGREEMENT AND WERE THEREFORE ARBITRABLE. IN
THIS REGARD, THE ASSISTANT SECRETARY REJECTED THE CONTENTION OF THE
AGENCY THAT THE: BUDGET AND ACCOUNTING ACT CONSTITUTED A STATUTORY
APPEALS PROCEDURE WITHIN THE MEANING OF SECTION 13(A) OF THE ORDER WHICH
WOULD PRECLUDE A FINDING OF ARBITRABILITY IN THE MATTER. THE AGENCY
APPEALED TO THE COUNCIL, CONTENDING THAT THE ASSISTANT SECRETARY'S
DECISION IS ARBITRARY AND CAPRICIOUS AND PRESENTS MAJOR POLICY ISSUES,
AND REQUESTED A STAY OF THAT DECISION.
COUNCIL ACTION (SEPTEMBER 18, 1975). THE COUNCIL HELD THAT THE
ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY AND CAPRICIOUS
AND DOES NOT PRESENT ANY MAJOR POLICY ISSUES. ACCORDINGLY, SINCE THE
AGENCY'S APPEAL FAILED TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED
UNDER SECTION 2411.12 OF THE COUNCIL'S RULES OF PROCEDURE (5 CFR
2411.12), THE COUNCIL DENIED REVIEW OF THE APPEAL. LIKEWISE, THE
COUNCIL DENIED THE AGENCY'S REQUEST FOR A STAY OF THE ASSISTANT
SECRETARY'S DECISION.
DEAR MR. O'ROURKE:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW AND
REQUEST FOR A STAY OF THE ASSISTANT SECRETARY'S DECISION, AND THE
UNION'S OPPOSITION THERETO, IN THE ABOVE-ENTITLED CASE.
ACCORDING TO THE REPORT AND FINDINGS OF THE ASSISTANT REGIONAL
DIRECTOR, THE INTERNAL REVENUE SERVICE, OMAHA DISTRICT OFFICE, OMAHA,
NEBRASKA (THE ACTIVITY), DENIED CLAIMS FOR PAYMENT OF PER DIEM AND
TRAVEL EXPENSES SUBMITTED BY TWO NEWLY HIRED EMPLOYEES FOR THE PERIOD OF
SEVERAL MONTHS PRECEDING THEIR ASSIGNMENT TO A PERMANENT DUTY POST.
THEREAFTER, THE EMPLOYEES INITIATED GRIEVANCES REQUESTING REIMBURSEMENT
IN ACCORDANCE WITH THE TRAVEL VOUCHERS PREVIOUSLY SUBMITTED, CITING
ARTICLE 27, SECTION 3 OF THE PARTIES' MULTI-DISTRICT AGREEMENT (THE
AGREEMENT) /1/ AS THE BASIS FOR THEIR CLAIMS. AFTER THE DISPUTE HAD
BEEN PROCESSED THROUGH THE INITIAL STEPS OF THE GRIEVANCE PROCEDURE
WITHOUT RESOLUTION AND ARBITRATION WAS REQUESTED BY THE UNION, THE
ACTIVITY MAINTAINED THAT THE GRIEVANCES WERE NOT ARBITRABLE BECAUSE
SECTION 305 OF THE BUDGET AND ACCOUNTING ACT (31 U.S.C. 71) /2/ AND
IMPLEMENTING REGULATIONS OF THE GENERAL ACCOUNT OFFICE (GAO) PROVIDE A
STATUTORY APPEALS PROCEDURE WHICH WOULD PRECLUDE ARBITRATION BY VIRTUE
OF SECTION 13(A) OF THE ORDER. SUBSEQUENTLY, THE NATIONAL TREASURY
EMPLOYEES UNION (THE UNION) REQUESTED A DETERMINATION AS TO THE
ARBITRABILITY OF THE GRIEVANCES AT ISSUE.
IN AGREEMENT WITH THE ASSISTANT REGIONAL DIRECTOR, THE ASSISTANT
SECRETARY FOUND THAT THE GRIEVANCES INVOLVED MATTERS CONCERNING THE
INTERPRETATION AND APPLICATION OF THE AGREEMENT AND, THEREFORE, WERE
ARBITRABLE. IN THIS REGARD, THE ASSISTANT SECRETARY REJECTED THE
CONTENTION THAT THE BUDGET AND ACCOUNTING ACT CONSTITUTED A STATUTORY
APPEALS PROCEDURE WITHIN THE MEANING OF SECTION 13(A) OF THE ORDER WHICH
WOULD PRECLUDE A FINDING OF ARBITRABILITY IN THE MATTER.
IN YOUR PETITION FOR REVIEW, YOU CONTEND THAT THE ASSISTANT
SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS AND PRESENTS MAJOR
POLICY ISSUES, BECAUSE, IN SUMMARY: (1) THE BUDGET AND ACCOUNTING ACT
PROVIDES AN EXCLUSIVE STATUTORY APPEALS PROCEDURE WITHIN THE MEANING OF
SECTION 13(A) OF THE ORDER FOR RESOLVING DISPUTES INVOLVING TRAVEL AND
PER DIEM CLAIMS, AND THUS PRECLUDES THE ARBITRATION OF SUCH DISPUTES;
(2) THE ASSISTANT SECRETARY'S INTERPRETATION AND APPLICATION OF THE TERM
STATUTORY APPEALS PROCEDURE IS NOT SUPPORTED BY THE LANGUAGE OR THE
"LEGISLATIVE HISTORY" OF THE ORDER, OR THE RULES AND REGULATIONS OF THE
COUNCIL AND THE ASSISTANT SECRETARY; AND (3) THE ASSISTANT SECRETARY
ERRONEOUSLY RELIED ON THE COMPTROLLER GENERAL'S RULING IN 54 COMP.GEN.
312, SUPRA, IN REACHING HIS DECISION, SINCE THE FACTS AND LEGAL
PRINCIPLES SET FORTH IN THAT CASE ARE IRRELEVANT TO THE DISPOSITION OF
THE PRESENT CASE.
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW DOES NOT MEET THE
REQUIREMENTS OF SECTION 2411.12 OF THE COUNCIL'S RULES; THAT IS, THE
DECISION OF THE ASSISTANT SECRETARY DOES NOT APPEAR ARBITRARY AND
CAPRICIOUS NOR DOES IT PRESENT ANY MAJOR POLICY ISSUES. WITH RESPECT TO
YOUR CONTENTION THAT THE ASSISTANT SECRETARY'S DECISION WAS ARBITRARY
AND CAPRICIOUS, IT DOES NOT APPEAR THAT HIS FINDINGS AND DECISION WERE
WITHOUT REASONABLE JUSTIFICATION IN THE PARTICULAR CIRCUMSTANCES OF THIS
CASE. WITH RESPECT TO YOUR CONTENTION THAT THE ASSISTANT SECRETARY'S
DECISION PRESENTS A MAJOR POLICY ISSUE, WITHOUT PASSING UPON THE
ASSISTANT SECRETARY'S REASONING, THE COUNCIL IS OF THE OPINION THAT IN
THE CIRCUMSTANCES OF THE CASE THE ASSISTANT SECRETARY'S DETERMINATION
THAT THE BUDGET AND ACCOUNTING ACT DOES NOT CONSTITUTE A STATUTORY
APPEALS PROCEDURE WITHIN THE MEANING OF SECTION 13(A) OF THE ORDER DOES
NOT WARRANT REVIEW. MOREOVER, THERE IS NO INDICATION THAT THE
NEGOTIATED PROCEDURE HEREIN WOULD PREVENT THE AGENCY FROM SEEKING A
RULING FROM THE COMPTROLLER GENERAL UNDER THE BUDGET AND ACCOUNTING ACT.
FURTHERMORE, AS THE COUNCIL STATED IN ITS REPORT AND RECOMMENDATIONS ON
THE AMENDMENT OF EXECUTIVE ORDER 11491, AS AMENDED, /3/ " . . . WHERE IT
APPEARS, BASED UPON THE FACTS AND CIRCUMSTANCES DESCRIBED IN A PETITION
BEFORE THE COUNCIL, THAT THERE IS SUPPORT FOR A CONTENTION THAT AN
ARBITRATOR HAS ISSUED AN AWARD WHICH VIOLATES APPLICABLE LAW,
APPROPRIATE REGULATIONS OR THE ORDER, THE COUNCIL, UNDER ITS RULES, WILL
GRANT REVIEW OF THE AWARD." /4/ AS TO THE ALLEGATION CONCERNING A RULING
OF THE COMPTROLLER GENERAL, AS THE ASSISTANT SECRETARY MERELY NOTED THE
DECISION, RATHER THAN RELIED UPON IT AS ALLEGED, NO MAJOR POLICY ISSUE
IS PRESENTED WARRANTING REVIEW.
ACCORDINGLY, SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR
ARBITRARY AND CAPRICIOUS AND DOES NOT PRESENT ANY MAJOR POLICY ISSUES,
YOUR APPEAL FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED UNDER
SECTION 2411.12 OF THE COUNCIL'S RULES OF PROCEDURE, AND REVIEW OF YOUR
APPEAL IS HEREBY DENIED. YOUR REQUEST FOR A STAY OF THE ASSISTANT
SECRETARY'S DECISION IS LIKEWISE DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
R. J. BUCHOLTZ
NTEU
/1/ ARTICLE 27, SECTION 3 PROVIDES, IN PERTINENT PART:
THE EMPLOYER AGREES TO REIMBURSE EMPLOYEES WHEN IN A TRAVEL STATUS
FOR PER DIEM AND MILEAGE
EXPENSES INCURRED BY THEM IN THE DISCHARGE OF THEIR OFFICIAL DUTIES .
. .
/2/ 31 U.S.C. 71 (1970 ED.) PROVIDES:
ALL CLAIMS AND DEMANDS WHATEVER BY THE GOVERNMENT OF THE UNITED
STATES OR AGAINST IT, AND
ALL ACCOUNTS WHATEVER IN WHICH THE GOVERNMENT OF THE UNITED STATES IS
CONCERNED, EITHER AS
DEBTOR OR CREDITOR, SHALL, BE SETTLED AND ADJUSTED IN THE GENERAL
ACCOUNTING OFFICE.
/3/ LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1975), SECTION
VI, P. 44.
/4/ IT SHOULD BE NOTED, AS THE COUNCIL POINTED OUT IN ITS DECISION IN
DEPARTMENT OF THE ARMY, ABERDEEN PROVING GROUND, FLRC NO. 74A-46 (APRIL
23, 1975), REPORT NO. 67, "THE FACT THAT AN AGENCY HAS SOUGHT A RULING
DIRECTLY FROM THE COMPTROLLER GENERAL DOES NOT RELIEVE THE AGENCY OF ITS
OBLIGATIONS UNDER THE ORDER AND, HENCE, IS NOT A DEFENSE TO AN UNFAIR
LABOR PRACTICE COMPLAINT." THUS, IF AN AGENCY CHOOSES NOT TO IMPLEMENT
AN AWARD AND INSTEAD, TO SEEK A RULING FROM THE COMPTROLLER GENERAL
CONCERNING THAT AWARD, IT CAN MEET ITS OBLIGATIONS UNDER THE ORDER AND
THEREBY PROTECT ITSELF FROM AN UNFAIR LABOR PRACTICE BY FILING AN
EXCEPTION WITH THE COUNCIL.
3 FLRC 587; FLRC NO. 75A-40; SEPTEMBER 18, 1975.
MR. WILLIAM C. VALDES
STAFF DIRECTOR
OFFICE OF CIVILIAN PERSONNEL
POLICY - OASD (M&RA)
THE PENTAGON, ROOM 3D281
WASHINGTON, D.C. 20301
MR. FLOYD E. SMITH, INTERNATIONAL
PRESIDENT
INTERNATIONAL ASSOCIATION OF
MACHINISTS & AEROSPACE WORKERS
MACHINISTS BUILDING
1300 CONNECTICUT AVENUE, NW.
WASHINGTON, D.C. 20036
(SYNOPSIS) FLRC NO. 75A-40
LOCAL LODGE 2331, IAM&AW AND 2750TH AIR BASE WING, WRIGHT-PATTERSON
AIR FORCE BASE. THE DISPUTE INVOLVED TWO UNION PROPOSALS CONCERNING (1)
OVERTIME ASSIGNMENTS AND (2) REDUCTION IN BARGAINING UNIT STAFFING.
COUNCIL ACTION (SEPTEMBER 18, 1975). AS TO (1), THE COUNCIL HELD
THAT FURTHER CLARIFICATION OF THE UNION'S PROPOSAL IS INDICATED SO AS TO
REFLECT MORE SPECIFICALLY ITS STATED OBJECTIVE (WHICH OBJECTIVE THE
AGENCY INDICATED IS NEGOTIABLE), AND THAT UNLESS AND UNTIL THE AGENCY
HEAD THEN DETERMINES THAT SUCH CLARIFIED PROPOSAL IS NOT NEGOTIABLE, THE
CONDITIONS FOR COUNCIL REVIEW HAVE NOT BEEN MET. ACCORDINGLY, WITHOUT
PASSING ON THE MERITS, THE COUNCIL DENIED THE UNION'S APPEAL WITH
RESPECT TO THIS PROPOSAL. AS TO (2), THE COUNCIL HELD THAT SINCE THE
UNION DID NOT ASSERT, NOR CAN IT BE INFERRED FROM THE APPEAL, THAT THE
AGENCY REGULATIONS, AS INTERPRETED BY THE AGENCY HEAD (UPON WHICH THE
DETERMINATION OF NONNEGOTIABILITY WAS BASED), VIOLATE ANY APPLICABLE
LAW, OUTSIDE REGULATION, OR THE ORDER, THE APPEAL IS NOT REVIEWABLE
UNDER SECTION 11(C)(4)(II) OF THE ORDER. ACCORDINGLY, THE COUNCIL ALSO
DENIED THE UNION'S APPEAL AS TO THIS PROPOSAL.
GENTLEMEN:
REFERENCE IS MADE TO THE UNION'S PETITION FOR REVIEW AND THE AGENCY'S
STATEMENT OF POSITION IN THE ABOVE-ENTITLED CASE. THE NEGOTIABILITY
DISPUTE INVOLVES TWO UNION PROPOSALS WHICH ARE DISCUSSED, SEPARATELY,
BELOW.
THE FIRST PROPOSAL (ARTICLE 10, SECTION 7) READS AS FOLLOWS:
NO EMPLOYEE IN ONE CLASSIFICATION SHALL BE ASSIGNED TO WORK ON A
SCHEDULED OVERTIME BASIS
IN ANOTHER CLASSIFICATION AS LONG AS EMPLOYEES IN THE CLASSIFICATION
WHICH NORMALLY PERFORM
THE WORK ARE AVAILABLE.
IN ITS REQUEST FOR AN AGENCY HEAD DETERMINATION AND, BY REFERENCE, IN
ITS APPEAL TO THE COUNCIL, THE UNION EXPRESSLY INDICATED THAT ITS SOLE
OBJECTIVE IN PROPOSING THE QUOTED LANGUAGE IS TO NEGOTIATE A PROPOSAL
"CONCERNED WITH THE WAY WHICH OVERTIME ASSIGNMENTS ARE MADE," SIMILAR TO
THE PROPOSAL WHICH THE COUNCIL HELD TO BE NEGOTIABLE IN PHILADELPHIA
METAL TRADES COUNCIL, AFL-CIO AND PHILADELPHIA NAVAL SHIPYARD,
PHILADELPHIA, PENNSYLVANIA, FLRC NO. 72A-2B40 (JUNE 29, 1973), REPORT
NO. 41. /1/
MORE PARTICULARLY, THE UNION STATED THAT:
THE RATIONALE ADVANCED BY FLRC IN FLRC NO. 72A-40, 29 JUNE 73,
APPEARS TO US TO APPLY
DIRECTLY TO THIS DISPUTE. AS IN THE INSTANT CASE, THERE, ALSO, THE
SOLE OBJECT IS TO CONTROL
THE CONDITIONS UNDER WHICH OVERTIME IS ASSIGNED. MANAGEMENT HAS
ALREADY MADE THE DECISION
THAT OVERTIME WORK IS NECESSARY TO ACCOMPLISH CERTAIN TASKS THAT ARE
NORMALLY PERFORMED BY
UNIT EMPLOYEES. THE INTENT OF THE LANGUAGE THERE, AND IN THE INSTANT
CASE, IS TO ASSURE THAT
THE EMPLOYEES NORMALLY ASSIGNED SUCH WORK WILL NOT BE DENIED THE
OPPORTUNITY TO WORK BASED ON
THE MERE FACT OF THEIR STATUS AS EMPLOYEES IN THE EXCLUSIVE
BARGAINING UNIT.
THE AGENCY TAKES ISSUE WITH THE NEGOTIABILITY OF PARTICULAR LANGUAGE
USED BY THE UNION IN SEEKING TO ACCOMPLISH THIS PURPOSE. HOWEVER, THE
AGENCY DOES NOT DISPUTE THE NEGOTIABILITY OF THE UNION'S OBJECTIVE. IN
THIS REGARD THE AGENCY NOTED, IN ITS DETERMINATION OF NONNEGOTIABILITY,
THAT, WHILE LOCAL MANAGEMENT IS WILLING TO NEGOTIATE A PROVISION
"PREDICATED ON THE PHILADELPHIA (NOTE 1, SUPRA) PROPOSAL," THE UNION'S
PROPOSAL, AS SUBMITTED FOR DETERMINATION "DOES NOT RELATE SOLELY TO
NONDENIAL OF OVERTIME ON THE MERE FACT OF AN EMPLOYEE'S STATUS IN THE
UNIT."
THUS, IT IS CLEAR FROM THE DOCUMENTS SUBMITTED TO THE COUNCIL IN THIS
CASE THAT THE UNION WISHES TO NEGOTIATE A PROPOSAL WITH THE OBJECTIVE
THAT UNIT EMPLOYEES WILL NOT BE DENIED OVERTIME SOLELY BECAUSE OF THEIR
STATUS AS MEMBERS OF THE BARGAINING UNIT, AND THAT THE AGENCY DOES NOT
DISPUTE THE NEGOTIABILITY OF SUCH OBJECTIVE. UNDER THESE CIRCUMSTANCES
WE BELIEVE THAT FURTHER CLARIFICATION OF ITS PROPOSAL BY THE UNION IS
INDICATED SO AS TO REFLECT MORE SPECIFICALLY ITS INTENT. UNLESS AND
UNTIL THE AGENCY HEAD THEN DETERMINES THAT SUCH CLARIFIED PROPOSAL IS
NOT NEGOTIABLE, THE CONDITIONS FOR COUNCIL REVIEW, AS PRESCRIBED IN
SECTION 11(C)(4) OF THE ORDER AND SECTION 2411.22 OF THE COUNCIL'S RULES
OF PROCEDURE, HAVE NOT BEEN MET.
ACCORDINGLY, WITHOUT PASSING ON THE MERITS, THE COUNCIL IS OF THE
VIEW THAT THE UNION'S APPEAL WITH RESPECT TO ITS PROPOSAL CONCERNING
OVERTIME ASSIGNMENTS IS PREMATURELY FILED, AND THE PETITION FOR REVIEW,
INSOFAR AS IT ADVERTS TO THAT PROPOSAL IS DENIED ON THAT GROUND. /2/
AS TO THE SECOND PROPOSAL (ARTICLE 30, SECTION 5), WHICH CONCERNS
REDUCTION IN BARGAINING UNIT STAFFING, AFTER CAREFUL CONSIDERATION OF
THE UNION'S APPEAL AND THE AGENCY'S STATEMENT OF POSITION, THE COUNCIL
HAS CONCLUDED THAT REVIEW OF THE APPEAL MUST BE DENIED.
SECTION 11(C)(4) OF THE ORDER, INCORPORATED BY REFERENCE IN SECTION
2411.22 OF THE COUNCIL'S RULES, PROVIDES:
(4) A LABOR ORGANIZATION MAY APPEAL TO THE COUNCIL FOR A DECISION
WHEN--
(I) IT DISAGREES WITH AN AGENCY HEAD'S DETERMINATION THAT A PROPOSAL
WOULD VIOLATE
APPLICABLE LAW, REGULATION OF APPROPRIATE AUTHORITY OUTSIDE THE
AGENCY, OR THIS ORDER, OR
(II) IT BELIEVES THAT AN AGENCY'S REGULATIONS, AS INTERPRETED BY THE
AGENCY HEAD, VIOLATE
APPLICABLE LAW, REGULATION OF APPROPRIATE AUTHORITY OUTSIDE THE
AGENCY, OR THIS ORDER.
THE DEPARTMENT OF DEFENSE DETERMINED THAT THE UNION'S PROPOSAL WAS
NOT NEGOTIABLE PRINCIPALLY BECAUSE IT CONTRAVENES PUBLISHED AGENCY
REGULATIONS, SPECIFICALLY PARAGRAPHS 1-8F(3) AND (4) AND 4-7H OF AIR
FORCE REGULATION 40-7, "NONAPPROPRIATED FUNDS PERSONNEL MANAGEMENT AND
ADMINISTRATION," JULY 1, 1974. THE UNION, IN ITS APPEAL, CONTENDED THAT
ITS PROPOSAL IS CONSISTENT WITH THE ORDER AND THEREFORE NEGOTIABLE.
HOWEVER, SINCE THE AGENCY'S DETERMINATION OR NONNEGOTIABILITY WAS
BASED PRIMARILY ON AN ASSERTION THAT THE PROPOSAL VIOLATES AGENCY
REGULATIONS, SECTION 11(C)(4)(I) IS NOT THE SOLE OR DETERMINATIVE
CONDITION FOR REVIEW APPLICABLE IN THIS APPEAL. MOREOVER, THE UNION
DOES NOT ASSERT, NOR CAN IT BE INFERRED FROM THE APPEAL, THAT THE
AGENCY'S REGULATIONS, AS INTERPRETED BY THE AGENCY HEAD, VIOLATE ANY
APPLICABLE LAW, OUTSIDE REGULATION, OR THE ORDER. HENCE, THE APPEAL IS
NOT REVIEWABLE BY THE COUNCIL UNDER THE PROVISIONS OF SECTION
11(C)(4)(II) OF THE ORDER.
ACCORDINGLY, SINCE THE UNION'S APPEAL WITH RESPECT TO ARTICLE 10,
SECTION 7 AND ARTICLE 30, SECTION 5 FAILS TO MEET THE CONDITIONS FOR
REVIEW SET FORTH IN SECTION 11(C)(4) OF THE ORDER, PURSUANT TO SECTION
2411.22 OF THE COUNCIL'S RULES, THE UNION'S APPEAL IS HEREBY DENIED.
BY THE COUNCIL.
/1/ IN THAT CASE THE PROPOSAL IN QUESTION PROVIDED THAT:
SUPERVISORS, SHOP PLANNERS, PLANNERS AND ESTIMATORS OR EMPLOYEES NOT
COVERED BY THIS
AGREEMENT SHALL NOT BE ASSIGNED TO PERFORM THE DUTIES OF EMPLOYEES IN
THE UNIT ON OVERTIME
ASSIGNMENTS FOR THE SOLE PURPOSE OF ELIMINATING THE NEED FOR SUCH
EMPLOYEES ON OVERTIME.
/2/ SEE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL NO. 75, AND
DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT, CINCINNATI, OHIO,
FLRC NO. 72A-51 (AUGUST 7, 1973), REPORT NO. 42; NFFE LOCAL 997 AND
AMES RESEARCH CENTER, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION,
FLRC NO. 73A-12 (AUGUST 7, 1973), REPORT NO. 42.
3 FLRC 584; FLRC NO. 75A-73; SEPTEMBER 17, 1975.
MS. JANET COOPER, STAFF ATTORNEY
NATIONAL FEDERATION
OF FEDERAL EMPLOYEES
1737 H STREET, NW.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 75A-73
VETERANS ADMINISTRATION, VETERANS ADMINISTRATION DATA PROCESSING
CENTER, AUSTIN, TEXAS, ASSISTANT SECRETARY CASE NOS. 63-5349 (CA) AND
63-5357 (CA). THE ASSISTANT SECRETARY, IN AGREEMENT WITH THE ASSISTANT
REGIONAL DIRECTOR, FOUND THAT THERE WERE INSUFFICIENT GROUNDS TO
ESTABLISH A REASONABLE BASIS FOR THE TWO RELATED UNFAIR LABOR PRACTICE
COMPLAINTS OF THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, WHICH
ALLEGED THAT THE ACTIVITY VIOLATED SECTION 19(A)(2) OF THE ORDER. THE
UNION APPEALED TO THE COUNCIL, CONTENDING THAT THE DECISION OF THE
ASSISTANT SECRETARY PRESENTS A MAJOR POLICY ISSUE.
COUNCIL ACTION (SEPTEMBER 17, 1975). THE COUNCIL HELD THAT BECAUSE
THE ASSISTANT SECRETARY'S DECISION DOES NOT PRESENT A MAJOR POLICY
ISSUE, AND SINCE THE UNION NEITHER ALLEGES, NOR DOES IT APPEAR, THAT THE
DECISION IS ARBITRARY AND CAPRICIOUS, THE UNION'S APPEAL FAILED TO MEET
THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.12 OF THE
COUNCIL'S RULES AND REGULATIONS. ACCORDINGLY, THE COUNCIL DENIED THE
UNION'S PETITION FOR REVIEW.
DEAR MS. COOPER:
THE COUNCIL AS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
IN TWO RELATED COMPLAINTS, NFFE ALLEGED THAT THE VETERANS
ADMINISTRATION, VETERANS ADMINISTRATION DATA PROCESSING CENTER, AUSTIN,
TEXAS, HAD VIOLATED SECTION 19(A)(2) OF THE ORDER BY PROMOTING,
UPGRADING OR OTHERWISE REWARDING CERTAIN MANAGERS AND EMPLOYEES WHO
EITHER HAD UNFAIR LABOR PRACTICE CHARGES OR EQUAL EMPLOYMENT OPPORTUNITY
CHARGES FILED AGAINST THEM OR WHO HAD ENGAGED IN ANTI-UNION CONDUCT,
INCLUDING DECERTIFICATION ACTIVITIES. THE ASSISTANT SECRETARY, IN
AGREEMENT WITH THE ASSISTANT REGIONAL DIRECTOR, FOUND THAT THERE WAS
INSUFFICIENT EVIDENCE TO ESTABLISH A REASONABLE BASIS FOR THE
COMPLAINTS. RELYING ON SECTION 203.6(E) OF HIS REGULATIONS, WHICH
PLACES THE BURDEN OF PROOF AT ALL STAGES OF THE PROCEEDING REGARDING
MATTERS ALLEGED IN THE COMPLAINT UPON THE COMPLAINANT, THE ASSISTANT
SECRETARY CONCLUDED THAT NO EVIDENCE WAS PRESENTED TO SUPPORT THE
COMPLAINTS OTHER THAN UNDOCUMENTED ALLEGATIONS OF A CAUSE-AND-EFFECT
RELATIONSHIP LEADING TO THE PROMOTION OF A NUMBER OF INDIVIDUALS AS A
RESULT OF THEIR ALLEGED ACTIVITIES ON BEHALF OF A DECERTIFICATION
EFFORT.
IN YOUR PETITION FOR REVIEW YOU CONTEND A MAJOR POLICY ISSUE IS
PRESENTED, NAMELY, WHETHER WHEN ALLEGATIONS OF A REWARD SYSTEM OF
PROMOTIONS FOR ANTI-UNION ATTITUDES AND CONDUCT BY MANAGEMENT OFFICIALS
AND FOR UNIT EMPLOYEES' DECERTIFICATION EFFORTS ARE MADE AGAINST AN
ACTIVITY, THE ACTIVITY MUST SHOW FROM ITS PERSONNEL FILES THAT SUCH IS
NOT TRUE BEFORE A COMPLAINT IS DISMISSED.
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW DOES NOT MEET THE
REQUIREMENTS OF SECTION 2411.12 OF THE COUNCIL'S RULES; THAT IS, THE
DECISION OF THE ASSISTANT SECRETARY DOES NOT APPEAR TO PRESENT A MAJOR
POLICY ISSUE, AND YOU DO NOT ALLEGE, NOR DOES IT OTHERWISE APPEAR, THAT
HIS DECISION WAS ARBITRARY AND CAPRICIOUS.
SECTION 6(D) OF THE ORDER PROVIDES: "THE ASSISTANT SECRETARY SHALL
PRESCRIBE REGULATIONS NEEDED TO ADMINISTER HIS FUNCTIONS UNDER THIS
ORDER," ONE OF WHICH IS TO "DECIDE UNFAIR LABOR PRACTICE COMPLAINTS . .
. " PURSUANT TO SECTION 6(A)(4) OF THE ORDER. SECTION 203.8(A) OF THE
ASSISTANT SECRETARY'S REGULATIONS PROVIDES:
IF THE ASSISTANT REGIONAL DIRECTOR DETERMINES THAT . . . A REASONABLE
BASIS FOR THE
COMPLAINT HAS NOT BEEN ESTABLISHED, . . . HE MAY DISMISS THE
COMPLAINT.
FURTHER, SECTION 203.6(E) STATES:
THE COMPLAINANT SHALL BEAR THE BURDEN OF PROOF AT ALL STAGES OF THE
PROCEEDINGS, REGARDING
MATTERS ALLEGED IN ITS COMPLAINT . . .
AS THE COUNCIL PREVIOUSLY NOTED IN DEPARTMENT OF THE ARMY, INDIANA
ARMY AMMUNITION PLANT, CHARLESTOWN, INDIANA, FLRC NO. 74A-90 (MAY 9,
1975), REPORT NO. 69, THE FOREGOING REGULATIONS WERE PROMULGATED BY THE
ASSISTANT SECRETARY PURSUANT TO THE ORDER AND CONSISTENT WITH THE STUDY
COMMITTEE REPORT AND RECOMMENDATIONS, WHICH PROVIDES THAT "(I)F THE
ASSISTANT SECRETARY FINDS THAT . . . A REASONABLE BASIS FOR THE
COMPLAINT HAS NOT BEEN ESTABLISHED, . . . HE MAY DISMISS THE COMPLAINT."
HIS DECISION IN THE INSTANT CASE WAS BASED UPON THE APPLICATION OF THESE
REGULATIONS, AND YOUR PETITION PRESENTS NO PERSUASIVE REASONS TO SHOW
THAT THE ASSISTANT SECRETARY WAS WITHOUT AUTHORITY TO ESTABLISH THE
ABOVE REGULATIONS, OR THAT HE WRONGLY APPLIED THESE REGULATIONS TO THE
FACTS AND CIRCUMSTANCES OF THIS CASE. RATHER, YOUR CONTENTIONS ARE
ESSENTIALLY NOTHING MORE THAN DISAGREEMENT WITH THE ASSISTANT SECRETARY
OVER WHETHER THE ALLEGED FACTS WARRANT THE ISSUANCE OF A HEARING ORDER.
BECAUSE THE ASSISTANT SECRETARY'S DECISION DOES NOT PRESENT A MAJOR
POLICY ISSUE, AND YOU NEITHER ALLEGE, NOR DOES IT APPEAR, THAT HIS
DECISION IS ARBITRARY AND CAPRICIOUS, YOUR APPEAL FAILS TO MEET THE
REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.12 OF THE COUNCIL'S
RULES AND REGULATIONS. ACCORDINGLY, YOUR PETITION FOR REVIEW IS HEREBY
DENIED.
CC: A/SLMR
DEPT. OF LABOR
S. L. SHOCHET
VA
3 FLRC 578; FLRC NO. 75A-26; SEPTEMBER 17, 1975.
OFFICE OF ECONOMIC OPPORTUNITY
AND
LOCAL 2677, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO
(SYNOPSIS) FLRC NO. 75A-26
OFFICE OF ECONOMIC OPPORTUNITY AND LOCAL 2677, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO (MAGGIOLO, ARBITRATOR). THE ARBITRATOR
DETERMINED, AMONG OTHER THINGS, THAT THE AGENCY HAD NOT COMPLIED WITH
CERTAIN PARTS OF A STIPULATION (TO WHICH THE PARTIES HAD AGREED DURING
THE ARBITRATION HEARING) CONCERNING AGENCY RECRUITMENT OF MINORITY GROUP
PEOPLE AND WOMEN FOR NONCOMPETITIVE POSITIONS AND THE ACCOUNTING TO THE
UNION OF THE PROCEDURES ADOPTED BY THE AGENCY FOR SUCH RECRUITMENT. THE
COUNCIL ACCEPTED THE AGENCY'S PETITION FOR REVIEW BECAUSE IT APPEARED,
BASED UPON THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT
THE EXCEPTIONS TO TWO PARAGRAPHS OF THE AWARD PRESENTED GROUNDS THAT
THOSE PARAGRAPHS OF THE AWARD VIOLATE APPLICABLE LAW AND APPROPRIATE
REGULATION, INCLUDING THE FEDERAL PERSONNEL MANUAL (REPORT NO. 70). THE
AGENCY'S REQUEST FOR A STAY OF THE AWARD WAS PREVIOUSLY GRANTED BY THE
COUNCIL AS TO THE TWO PARAGRAPHS OF THE AWARD IN QUESTION.
COUNCIL ACTION (SEPTEMBER 17, 1975). BASED ON AN INTERPRETATION BY
THE CIVIL SERVICE COMMISSION, THE COUNCIL FOUND THAT CERTAIN PORTIONS OF
THE ARBITRATOR'S AWARD WERE IN VIOLATION OF APPLICABLE LAW AND
APPROPRIATE REGULATION. ACCORDINGLY, PURSUANT TO SECTION 2411.37(B) OF
THE COUNCIL'S RULES OF PROCEDURE (5 CFR 2411.37(B)), THE COUNCIL
MODIFIED THE AWARD BY STRIKING THE VIOLATIVE PORTIONS. AS SO MODIFIED,
THE COUNCIL SUSTAINED THE ARBITRATOR'S AWARD AND VACATED THE STAY WHICH
IT HAD PREVIOUSLY GRANTED.
THIS APPEAL AROSE FROM THE AWARD ISSUED BY THE ARBITRATOR, WHEREIN HE
DETERMINED THAT THE OFFICE OF ECONOMIC OPPORTUNITY (THE AGENCY) HAD
FAILED TO COMPLY WITH CERTAIN PARAGRAPHS OF A STIPULATION TO WHICH THE
AGENCY AND LOCAL 2677, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO (THE UNION) HAD AGREED. BASED ON THE FINDINGS OF THE ARBITRATOR
AND THE ENTIRE RECORD, IT APPEARS THAT THE UNION HAD FILED A GRIEVANCE
ALLEGING, AMONG OTHER THINGS, THAT THE AGENCY HAD FAILED TO ESTABLISH AN
AFFIRMATIVE ACTION PLAN FOR EQUAL OPPORTUNITY AND HAD DISCRIMINATED
AGAINST WOMEN AND MINORITY GROUP MEMBERS IN FILLING EXCEPTED SERVICE
POSITIONS. ARBITRATION WAS INVOKED BY THE UNION. DURING THE
ARBITRATION HEARING, THE PARTIES AGREED UPON A STIPULATION AS A MEANS OF
RESOLVING THE ISSUES IN DISPUTE. THE ARBITRATOR RETAINED JURISDICTION
TO ENSURE COMPLIANCE WITH THE STIPULATION. THE ARBITRATION HEARING WAS
ADJOURNED SUBJECT TO CALL BY EITHER PARTY. IN THE FOLLOWING YEAR THE
ARBITRATOR REOPENED THE HEARING AT THE REQUEST OF THE UNION, WHICH
ALLEGED THAT THE AGENCY HAD FAILED TO COMPLY WITH THE TERMS OF THE
STIPULATION.
THE ARBITRATOR DETERMINED, AMONG OTHER THINGS, THAT THE AGENCY HAD
NOT COMPLIED WITH THE PORTIONS OF THE STIPULATION CONCERNING AGENCY
RECRUITMENT OF MINORITY GROUP PEOPLE AND WOMEN FOR NONCOMPETITIVE
POSITIONS AND THE ACCOUNTING TO THE UNION OF THE PROCEDURES ADOPTED BY
THE AGENCY FOR SUCH RECRUITMENT. AS A REMEDY, THE ARBITRATOR ORDERED
THE AGENCY TO TAKE, AMONG OTHER ACTIONS, THOSE SET FORTH IN PARAGRAPHS 4
AND 5 OF HIS AWARD:
4. THE AGENCY SHALL ACTIVELY RECRUIT FROM MINORITY GROUP PEOPLE AND
WOMEN FOR
NON-COMPETITIVE POSITIONS AS SUCH POSITIONS BECOME AVAILABLE. IF TWO
OR MORE APPLICANTS ARE
EQUALLY QUALIFIED, THE AGENCY SHALL GIVE PRIORITY TREATMENT TO
MINORITY GROUP AND WOMEN
APPLICANTS UNTIL THE PERCENTAGE OF EACH GRADE CATEGORY REACHES THE
GOAL ESTABLISHED PURSUANT
TO ARTICLE VII OF THE CONTRACT IN THE DIRECTOR'S MEMORANDUM OF AUGUST
9, 1972. AFTER EACH
GOAL IS REACHED, HIRING DURING EACH MONTH SHALL BE CONSISTENT WITH
MAINTAINING THIS
PERCENTAGE.
5. THE AGENCY SHALL PRESENT TO THE UNION AT THE END OF EACH 60-DAY
PERIOD AN ACCOUNTING OF
THE PROCEDURES, FORMAL OR INFORMAL, IT HAS FOLLOWED FOR THE
RECRUITMENT OF MINORITY EMPLOYEES
AND WOMEN IN NON-COMPETITIVE POSITIONS AND THE PERCENTAGE OF SUCH
EMPLOYEES HIRED DURING THAT
PERIOD. IN ADDITION, THE AGENCY SHALL FURNISH THE UNION WITH THE
NAMES AND ADDRESSES OF
APPLICANTS INTERVIEWED FOR SUCH POSITIONS. IN NO EVENT SHALL THE
AGENCY INDICATE THE SEX,
RACE, CREED OR NATIONAL ORIGIN OF SUCH APPLICANTS.
THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD WITH
THE COUNCIL. UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE,
THE COUNCIL ACCEPTED THE PETITION FOR REVIEW BECAUSE IT APPEARED THAT
THE EXCEPTIONS TO PARAGRAPHS 4 AND 5 OF THE AWARD PRESENT GROUNDS THAT
THOSE PARAGRAPHS OF THE AWARD VIOLATE APPLICABLE LAW AND APPROPRIATE
REGULATION, INCLUDING THE FEDERAL PERSONNEL MANUAL. /1/ THE UNION FILED
A BRIEF. /2/
SECTION 2411.37(A) OF THE COUNCIL'S RULES OF PROCEDURE PROVIDES THAT:
(A) AN AWARD OF AN ARBITRATOR SHALL BE MODIFIED, SET ASIDE IN WHOLE
OR IN PART, OR REMANDED
ONLY ON GROUNDS THAT THE AWARD VIOLATES APPLICABLE LAW, APPROPRIATE
REGULATION, OR THE ORDER,
OR OTHER GROUNDS SIMILAR TO THOSE APPLIED BY THE COURTS IN PRIVATE
SECTOR LABOR-MANAGEMENT
RELATIONS.
AS PREVIOUSLY STATED, THE COUNCIL ACCEPTED THE AGENCY'S PETITION FOR
REVIEW BECAUSE IT APPEARED THAT THE EXCEPTIONS TO PARAGRAPHS 4 AND 5 OF
THE AWARD PRESENT GROUNDS THAT THOSE PARAGRAPHS OF THE AWARD VIOLATE
APPLICABLE LAW AND APPROPRIATE REGULATION, INCLUDING THE FEDERAL
PERSONNEL MANUAL. IN ACCORDANCE WITH ESTABLISHED COUNCIL PRACTICE, THE
CIVIL SERVICE COMMISSION WAS REQUESTED FOR AN INTERPRETATION OF THE
STATUTES AND THE IMPLEMENTING REGULATIONS OF THE COMMISSION AS THEY
PERTAIN TO THE QUESTIONS RAISED IN THE PRESENT CASE. THE COMMISSION
REPLIED IN RELEVANT PART AS FOLLOWS:
WITH REGARD TO (PARAGRAPH 4 OF THE ARBITRATOR'S AWARD) . . . WE
VIGOROUSLY SUPPORT THE
RECRUITMENT OF MINORITY GROUP AND WOMEN APPLICANTS FOR FEDERAL
EMPLOYMENT. WE BELIEVE THAT
IMPLEMENTATION OF THE REMAINDER OF THIS PROVISION, HOWEVER, WOULD
INVOLVE A VIOLATION NOT ONLY
OF COMMISSION REGULATIONS (PART 713, CODE OF FEDERAL REGULATIONS),
BUT OF THE EEO ACT OF
1972. BOTH THE LAW AND THE REGULATIONS PROHIBIT DISCRIMINATION IN
PERSONNEL ACTIONS BASED ON
RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN, AND THIS PROHIBITION
APPLIES EQUALLY TO
COMPETITIVE AND NON-COMPETITIVE APPOINTMENTS. THE AWARD WOULD HAVE
THE EFFECT OF REQUIRING
THE AGENCY TO CONSIDER RACE, ETHNIC ORIGIN OR SEX AS A POSITIVE
SELECTION FACTOR. IT WOULD BE
NECESSARY TO SCREEN OUT (I.E., DISCRIMINATE AGAINST) "EQUALLY
WELL-QUALIFIED" NON-MINORITY
MALE CANDIDATES IN FAVOR OF FEMALE AND MINORITY APPLICANTS IN ORDER
TO REACH CERTAIN MINORITY
AND FEMALE EMPLOYMENT GOALS OR LEVELS AND THEREAFTER, PERHAPS, TO
DISCRIMINATE AGAINST EQUALLY
QUALIFIED FEMALE AND MINORITY APPLICANTS IN ORDER TO MAINTAIN THOSE
LEVELS. IN THIS CONTEXT
THE GOALS ARE NO MORE THAN QUOTAS, AND THE PRESCRIBED MEANS OF
ATTAINING THE "GOALS" AMOUNT TO
PREFERENTIAL TREATMENT BECAUSE OF RACE, ETHNIC ORIGIN, OR SEX.
THE SUBJECTS OF "QUOTAS" "PREFERENCE" HAVE BEEN ADDRESSED IN A NUMBER
OF WIDELY CIRCULATED
POLICY DIRECTIVES TO FEDERAL AGENCIES. THE COMMISSION'S MEMORANDUM
FOR HEADS OF DEPARTMENTS
AND AGENCIES OF MAY 11, 1971 . . . POINTS OUT CLEARLY THE
INCOMPATIBILITY OF QUOTAS WITH MERIT
PRINCIPLES. THE 4-AGENCY AGREEMENT OF MARCH 23, 1973 . . . SIGNED
BY FOUR OF THE MEMBERS OF
THE EEO COORDINATING COUNCIL, DISTINGUISHES BETWEEN LEGITIMATE,
REALISTIC TARGETS OR GOALS,
BASED ON ANTICIPATED VACANCIES AND THE AVAILABILITY OF SKILLS IN THE
MARKET PLACE, AND QUOTA
SYSTEMS WHICH REQUIRE THAT A POSITIVE PREFERENCE BE GIVEN TO WOMEN
AND MINORITY GROUP MEMBERS
IN ORDER TO ACHIEVE AND MAINTAIN CERTAIN PRE-ESTABLISHED, INFLEXIBLE
EMPLOYMENT
LEVELS. FINALLY, PRESIDENT FORD'S MEMORANDUM FOR HEADS OF
DEPARTMENTS AND AGENCIES OF MARCH
6, 19Y5 . . . REITERATES THAT "DECISIONS MOTIVATED BY FACTORS NOT
RELATED TO THE REQUIREMENTS
OF A JOB HAVE NO PLACE IN THE EMPLOYMENT SYSTEM OF ANY EMPLOYER AND
PARTICULARLY THE FEDERAL
GOVERNMENT." WE CONCLUDE, THEREFORE, THAT THAT PORTION OF THE
ARBITRATOR'S AWARD WHICH WOULD
GIVE PRIORITY TREATMENT TO MINORITY GROUPS AND WOMEN UNTIL THEY
CONSTITUTE A CERTAIN
PERCENTAGE OF EACH GRADE CATEGORY WOULD VIOLATE LAW, COMMISSION
REGULATIONS, AND
WELL-ESTABLISHED ADMINISTRATION POLICY.
THAT PART OF (PARAGRAPH 5 OF THE ARBITRATOR'S AWARD) . . . THAT
REQUIRES THE AGENCY TO
REPORT TO THE UNION EVERY 60 DAYS ON THE PROCEDURES IT HAS USED TO
RECRUIT MINORITY GROUP MEMBERS AND WOMEN AND THE PERCENTAGES OF SUCH
PERSONS HIRED DOES NOT CONFLICT WITH COMMISSION REGULATIONS OR
DIRECTIVES. THE REQUIREMENT THAT THE AGENCY FURNISH THE UNION WITH
THE NAMES AND ADDRESSES OF
APPLICANTS INTERVIEWED, HOWEVER, WOULD INVOLVE A BREACH OF COMMISSION
POLICY AND INSTRUCTIONS.
TWO PROVISIONS OF THE FEDERAL PERSONNEL MANUAL ARE RELEVANT HERE,
SUBCHAPTER 5-1(B) OF
CHAPTER 294 AND APPENDIX C OF THE SAME CHAPTER. SUBCHAPTER 5-1(B)
PROVIDES THAT "THE NAMES OF
APPLICANTS FOR CIVIL SERVICE POSITIONS OR ELIGIBLES ON CIVIL SERVICE
REGISTERS, CERTIFICATES,
EMPLOYMENT LISTS, OR OTHER LISTS OF ELIGIBLES, OR THEIR RATINGS OR
RELATIVE STANDINGS ON
REGISTERS ARE NOT INFORMATION AVAILABLE TO THE PUBLIC." WITH SPECIFIC
REFERENCE TO
INFORMATION WHICH MAY BE RELEASED TO UNIONS, APPENDIX C PERMITS THE
DISCLOSURE OF NAMES,
POSITION TITLES, GRADES, SALARIES, AND DUTY STATIONS OF FEDERAL
EMPLOYEES FOR THE PURPOSE OF
MEMBERSHIP SOLICITATION. BEYOND THIS, THE RELEASE OF INFORMATION TO
UNIONS IS NOT AUTHORIZED.
IN SUMMARY, WE FIND THAT THE TWO PROVISIONS OF THE ARBITRATOR'S AWARD
YOU ASKED US TO
REVIEW BOTH CONTAIN ELEMENTS WHICH, IF IMPLEMENTED, WOULD VIOLATE
APPLICABLE LAW AND
COMMISSION REGULATIONS AND POLICY.
BASED UPON THE FOREGOING INTERPRETATION BY THE CIVIL SERVICE
COMMISSION, WE MUST CONCLUDE THAT CERTAIN PORTIONS OF THE ARBITRATOR'S
AWARD ARE IN VIOLATION OF APPLICABLE LAW AND APPROPRIATE REGULATION. WE
BELIEVE THAT THE AWARD MUST THEREFORE BE MODIFIED AS DESCRIBED BELOW.
FOR THE FOREGOING REASONS, WE FIND THAT CERTAIN PORTIONS OF THE
ARBITRATOR'S AWARD ARE IN VIOLATION OF APPLICABLE LAW AND APPROPRIATE
REGULATION. ACCORDINGLY, PURSUANT TO SECTION 2411.37(B) OF THE
COUNCIL'S RULES OF PROCEDURE, WE MODIFY THE AWARD OF THE ARBITRATOR BY
STRIKING THE FOLLOWING SENTENCES FROM PARAGRAPHS 4 AND 5 OF THE AWARD:
4. . . . IF TWO OR MORE APPLICANTS ARE EQUALLY QUALIFIED, THE AGENCY
SHALL GIVE PRIORITY
TREATMENT TO MINORITY GROUP AND WOMEN APPLICANTS UNTIL THE PERCENTAGE
OF EACH GRADE CATEGORY
REACHES THE GOAL ESTABLISHED PURSUANT TO ARTICLE VII OF THE CONTRACT
IN THE DIRECTOR'S
MEMORANDUM OF AUGUST 9, 1972. AFTER EACH GOAL IS REACHED, HIRING
DURING EACH MONTH SHALL BE
CONSISTENT WITH MAINTAINING THIS PERCENTAGE.
5. . . . IN ADDITION, THE AGENCY SHALL FURNISH THE UNION WITH THE
NAMES AND ADDRESSES OF
APPLICANTS INTERVIEWED FOR SUCH POSITIONS. IN NO EVENT SHALL THE
AGENCY INDICATE THE SEX,
RACE, CREED OR NATIONAL ORIGIN OF SUCH APPLICANTS.
AS SO MODIFIED, THE AWARD IS SUSTAINED AND THE STAY OF PARAGRAPHS 4
AND 5 OF THE AWARD IS VACATED.
BY THE COUNCIL.
ISSUED: SEPTEMBER 17, 1975
/1/ THE AGENCY REQUESTED AND THE COUNCIL GRANTED, PURSUANT TO SECTION
2411.47(D) OF THE COUNCIL'S RULES OF PROCEDURE, A STAY OF PARAGRAPHS 4
AND 5 OF THE AWARD PENDING THE DETERMINATION OF THE APPEAL.
/2/ THE UNION REQUESTED THAT THE COUNCIL HOLD PUBLIC HEARINGS IN THIS
CASE. PURSUANT TO SECTION 2411.48 OF THE COUNCIL'S RULES (5 CFR
2411.48), THE UNION'S REQUEST IS DENIED BECAUSE THE ISSUES AND THE
POSITIONS OF THE PARTIES IN THIS CASE ARE ADEQUATELY REFLECTED IN THE
ENTIRE RECORD NOW BEFORE THE COUNCIL.
3 FLRC 573; FLRC NO. 75A-21; SEPTEMBER 12, 1975.
MR. ROBERT E. COY
ASSISTANT GENERAL COUNSEL
OFFICE OF GENERAL COUNSEL
VETERANS ADMINISTRATION
WASHINGTON, D.C. 20420
(SYNOPSIS) FLRC NO. 75A-21
AFGE LOCAL 2028 (PROFESSIONAL STAFF NURSES UNIT "PNSU") AND VETERANS
ADMINISTRATION HOSPITAL, UNIVERSITY DRIVE, PITTSBURGH, PENNSYLVANIA
(OAKLAND) (TIVE, ARBITRATOR). THE AGENCY EXCEPTED TO THAT PART OF THE
ARBITRATOR'S AWARD ORDERING THE AGENCY TO RETURN THE GRIEVANT TO THE
CORONARY CARE UNIT, CONTENDING (1) THAT THE ARBITRATOR'S DETERMINATION
THAT THE GRIEVANT'S TRANSFER OUT OF THE CORONARY CARE UNIT WAS GRIEVABLE
AND ARBITRABLE, VIOLATED SECTION 13(A) AND (B) OF THE ORDER, AND (2)
THAT THE ARBITRATOR VIOLATED SECTION 12(B) OF THE ORDER BY ORDERING THE
HOSPITAL TO RETURN THE GRIEVANT TO DUTY IN THE CORONARY CARE UNIT. THE
AGENCY ALSO REQUESTED A STAY OF THE ABRITRATOR'S AWARD.
COUNCIL ACTION (SEPTEMBER 12, 1975). THE COUNCIL FOUND THAT THE
AGENCY'S PETITION DOES NOT PRESENT FACTS AND CIRCUMSTANCES NECESSARY TO
SUPPORT ITS CONTENTIONS. ACCORDINGLY, THE COUNCIL DENIED REVIEW OF THE
AGENCY'S PETITION BECAUSE IT FAILED TO MEET THE REQUIREMENTS FOR REVIEW
AS SET FORTH IN SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE (5
CFR 2411.32), AND THEREFORE VACATED THE STAY OF THE ARBITRATOR'S AWARD
WHICH IT HAD PREVIOUSLY GRANTED.
DEAR MR. COY:
THE COUNCIL HAS CAREFULLY CONSIDERED THE AGENCY'S PETITION FOR REVIEW
OF AN ARBITRATOR'S AWARD, AND THE UNION'S OPPOSITION THERETO, IN THE
ABOVE-ENTITLED CASE.
ACCORDING TO THE ARBITRATOR'S AWARD, THE HOSPITAL NOTIFIED THE
GRIEVANT, A NURSE ON THE DAY SHIFT IN THE CORONARY CARE UNIT, THAT SHE
WAS BEING TRANSFERRED TO ITS EVENING SHIFT. THE GRIEVANT ACCEPTED THE
TRANSFER, APPARENTLY CONCLUDING, ON THE BASIS OF THE HOSPITAL'S
EXPLANATION, THAT THE REASON FOR HER TRANSFER WAS THE ILLNESS OF ANOTHER
NURSE WHOM SHE WAS REPLACING. ACTUALLY, THE HOSPITAL HAD TRANSFERRED
THE OTHER NURSE FROM THE EVENING SHIFT TO THE DAY SHIFT OF THE CORONARY
CARE UNIT IN ORDER TO GIVE HER MORE SUPERVISION. UPON THE GRIEVANT'S
DISCOVERY THAT THE OTHER NURSE WAS NOT ILL BUT HAD REPLACED HER ON THE
DAY SHIFT, THE GRIEVANT INDICATED TO A SUPERVISOR HER DISSATISFACTION
WITH THE PRIOR EXPLANATION, FAILED TO REPORT TO WORK THE NEXT 2 DAYS,
AND UPON HER RETURN, REPORTED TO THE DAY INSTEAD OF THE EVENING SHIFT.
THE HOSPITAL THEN TOLD THE GRIEVANT THAT SHE WAS TRANSFERRED OUT OF THE
CORONARY CARE UNIT TO THE UROLOGICAL SECTION. THE HOSPITAL ISSUED A
REPRIMAND FOR THE GRIEVANT'S 2-DAY AWOL THAT WAS TO BE PLACED IN HER
PERSONNEL FILE FOR 2 YEARS. A GRIEVANCE WAS FILED, WHICH ULTIMATELY WAS
SUBMITTED TO ARBITRATION.
THE PARTIES DID NOT SUBMIT AN AGREED-UPON STATEMENT OF THE ISSUES TO
BE DECIDED BY THE ARBITRATOR. HOWEVER, THE UNION AND THE HOSPITAL
SUBMITTED THEIR RESPECTIVE VERSIONS OF THE ISSUES, AND THE ARBITRATOR
CONCLUDED THEREFROM THAT THE PARTIES "SEEMED TO BE IN SUBSTANTIAL
AGREEMENT AS TO WHAT THE ISSUES ARE." THE ARBITRATOR ACCEPTED AND
CONSIDERED, INTER ALIA, THE FOLLOWING ISSUES SUBSTANTIALLY AS FRAMED BY
THE HOSPITAL:
(W)HETHER THE REASSIGNMENT OF THE GRIEVANT FROM THE CORONARY CARE
UNIT IS GRIEVABLE OR
ARBITRABLE? IF SO, WAS IT CARRIED OUT FOR GOOD REASON? /1/
THE ARBITRATOR DETERMINED THAT THE REASSIGNMENT OF THE GRIEVANT WAS
GRIEVABLE AND ARBITRABLE. THE ARBITRATOR FURTHER DETERMINED THAT, BASED
ON HIS CONCLUSION THAT THERE WAS AN ELEMENT OF PUNISHMENT PRESENT, THE
GRIEVANT'S REASSIGNMENT FROM THE CORONARY CARE UNIT WAS NOT PROPER. AS
A REMEDY, HE ORDERED THE HOSPITAL TO RETURN THE GRIEVANT TO THE CORONARY
CARE UNIT, BUT DENIED THE GRIEVANT'S REQUEST TO BE MADE WHOLE FOR ANY
LOSS OF PAY. /2/
THE AGENCY APPEALS TO THE COUNCIL FROM THAT PART OF THE ARBITRATOR'S
AWARD ORDERING THE AGENCY TO RETURN THE GRIEVANT TO THE CORONARY CARE
UNIT, ON THE BASIS OF THE TWO EXCEPTIONS DISCUSSED BELOW.
SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE PROVIDES IN
PERTINENT PART, THAT REVIEW OF AN ARB'TRATION AWARD WILL BE GRANTED
"WHERE IT APPEARS, BASED UPON THE FACTS AND CIRCUMSTANCES DESCRIBED IN
THE PETITION THAT THE EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE
AWARD VIOLATES . . . THE ORDER . . . "
THE AGENCY'S FIRST EXCEPTION CONTENDS THAT THE ARBITRATOR'S
DETERMINATION THAT THE GRIEVENT'S TRANSFER OUT OF THE CORONARY CARE UNIT
WAS GRIEVABLE AND ARBITRABLE, VIOLATED SECTION 13(A) AND (B) OF THE
ORDER. IN SUPPORT OF THIS EXCEPTION, THE AGENCY RELIES ON THE
REQUIREMENT IN SECTION 13(A) AND (B) OF THE ORDER, /3/ IN EFFECT PRIOR
TO THE AMENDMENTS MADE BY E.O. 11838, WHICH LIMITED THE SCOPE OF THE
NEGOTIATED GRIEVANCE AND ARBITRATION PROCEDURES TO "THE CONSIDERATION OF
GRIEVANCES OVER THE INTERPRETATION OR APPLICATION OF THE AGREEMENT." THE
AGENCY POINTS OUT THAT THE ARBITRATOR DID NOT CITE ANY CONTRACTUAL
PROVISIONS IN CONCLUDING THAT THE REASSIGNMENT WAS IMPROPER. THUS, THE
AGENCY CONCLUDES THAT "(I)N VIEW OF THE LIMITS OF SECTION 13(A) AND (B),
THE ARBITRATOR'S FAILURE TO CITE ANY CONTRACTUAL PROVISIONS IN SUPPORT
OF HIS RULING EVIDENCES THE LACK OF CONTRACTUAL SUPPORT FOR HIS
CONCLUSION." IN EFFECT, THE AGENCY ALLEGES THAT BECAUSE THE ARBITRATOR
DID NOT CITE A SPECIFIC CONTRACT PROVISION IN THE REASONING WHICH HE
EMPLOYED, IT MUST NECESSARILY FOLLOW THAT HE WAS NOT RELYING UPON ANY
SPECIFIC CONTRACT PROVISION AND HENCE THE AWARD IS CONTRARY TO SECTION
13 OF THE ORDER. HOWEVER, IT DOES NOT NECESSARILY FOLLOW THAT BECAUSE
THE ARBITRATOR DID NOT CITE A CONTRACT PROVISION, HIS AWARD WAS NOT
BASED UPON THE PROVISIONS OF THE NEGOTIATED AGREEMENT. INDEED, THE
COUNCIL HAS INDICATED THAT THE "ARBITRATOR IS NOT REQUIRED TO DISCUSS
THE SPECIFIC AGREEMENT PROVISION INVOLVED." SMALL BUSINESS
ADMINISTRATION AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
2532 (KLEEB, ARBITRATOR), FLRC NO. 73A-44 (NOVEMBER 6, 1974), REPORT NO.
60. THEREFORE, THE COUNCIL IS OF THE OPINION THAT THE AGENCY'S FIRST
EXCEPTION DOES NOT APPEAR TO BE SUPPORTED BY FACTS AND CIRCUMSTANCES
DESCRIBED IN THE PETITION AS REQUIRED BY SECTION 2411.32 OF THE
COUNCIL'S RULES. /4/
AS ITS SECOND EXCEPTION, THE AGENCY CONTENDS THAT THE ARBITRATOR
VIOLATED SECTION 12(B) OF THE ORDER BY ORDERING THE HOSPITAL TO RETURN
THE GRIEVANT TO DUTY IN THE CORONARY CARE UNIT. IN THE PRESENT CASE,
THE COUNCIL FINDS THAT THE AGENCY'S PETITION DOES NOT PRESENT FACTS AND
CIRCUMSTANCES NECESSARY TO SUPPORT ITS CONTENTION THAT THE AWARD
VIOLATES SECTION 12(B) OF THE ORDER. IN ALLEGING THAT THE ARBITRATOR
SUBSTITUTED "HIS JUDGMENT IN OVERRULING; MANAGEMENT'S RESERVED RIGHT TO
DETERMINE THE BEST WAY IN WHICH TO ENSURE QUALITY AND RELIABLE PATIENT
CARE, AS PROTECTED BY SECTION 12(B)," THE AGENCY HAS MISINTERPRETED THE
ARBITRATOR'S AWARD. THE ISSUE-- WHETHER OR NOT THE REASSIGNMENT WAS
"CARRIED OUT FOR GOOD REASON"-- WAS FRAMED BY THE HOSPITAL ITSELF AND
MAKES IT CLEAR THAT THE PARTIES, AS WELL AS THE ARBITRATOR, VIEWED THE
CASE AS A DISCIPLINARY MATTER. THE PARTIES AUTHORIZED THE ARBITRATOR TO
DECIDE THE PROPRIETY OF THE DISCIPLINARY TRANSFER, AND THE ARBITRATOR
DECIDED THAT GOOD REASON DID NOT EXIST FOR THE HOSPITAL'S DISCIPLINE AND
MERELY ORDERED A RETURN TO THE STATUS QUO. THUS, THE RESOLUTION OF THE
GRIEVANCE BY THE ARBITRATOR WAS NOT A JUDGMENT CONCERNING THE BEST WAY
TO ENSURE QUALITY AND RELIABLE PATIENT CARE AND DOES NOT SERVE TO
INDICATE ANY LIMITATIONS ON MANAGEMENT'S RETAINED RIGHTS TO TRANSFER OR
ASSIGN EMPLOYEES OR TO SET ANY POLICY ON THE ASSIGNMENT OR TRANSFER OF
EMPLOYEES UNDER SECTION 12(B) OF THE ORDER. RATHER, IT REPRESENTS A
DETERMINATION ON A DISCIPLINARY MATTER.
ACCORDINGLY, THE COUNCIL HAS DENIED REVIEW OF THE AGENCY'S PETITION
BECAUSE IT FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS SET FORTH IN
SECTION 2411.32 OF ITS RULES OF PROCEDURE AND THEREFORE VACATES ITS
EARLIER STAY OF THE ARBITRATOR'S AWARD.
BY THE COUNCIL.
CC: J. MULHOLLAND
AFGE
/1/ SPECIFICALLY, THE ISSUE PROPOSED BY THE HOSPITAL STATED IN
PERTINENT PART:
IS THE REASSIGNMENT OF . . . (THE GRIEVANT) FROM THE CORONARY CARE
UNIT GRIEVABLE OR
ARBITRABLE? IF SO, WAS IT CARRIED OUT FOR GOOD REASON?
/2/ THE ARBITRATOR ALSO DECIDED THREE OTHER ISSUES. HE DETERMINED
(1) THAT THE HOSPITAL'S ACTION IN CHANGE; THE GRIEVANT'S TOUR OF DUTY
WAS NOT IN VIOLATION OF THE COLLECTIVE BARGAINING AGREEMENT; (2) THAT
THE GRIEVANT WAS PROPERLY REPRESENTED BY AN EMPLOYEE (A NON-NURSE)
ELECTED AS THE CHIEF UNION STEWARD; AND (3) THAT THE REPRIMAND REMAIN
IN HER FILE FOR ONLY 1 YEAR. NO PARTY TAKES EXCEPTION TO THESE PORTIONS
OF THE ARBITRATOR'S AWARD.
/3/ SECTION 13(A) AND (B) OF E.O. 11491 STATED, IN PERTINENT PART, AS
FOLLOWS:
(A) AN AGREEMENT BETWEEN AN AGENCY AND A LABOR ORGANIZATION SHALL
PROVIDE A PROCEDURE,
APPLICABLE ONLY TO THE UNIT, FOR THE CONSIDERATION OF GRIEVANCES OVER
THE INTERPRETATION OR
APPLICATION OF THE AGREEMENT. A NEGOTIATED GRIEVANCE PROCEDURE MAY
NOT COVER ANY OTHER
MATTERS, INCLUDING MATTERS FOR WHICH STATUTORY APPEALS PROCEDURES
EXIST, AND SHALL BE THE
EXCLUSIVE PROCEDURE AVAILABLE TO THE PARTIES AND THE EMPLOYEES IN THE
UNIT FOR RESOLVING SUCH
GRIEVANCES. HOWEVER, ANY EMPLOYEE . . .
(B) A NEGOTIATED PROCEDURE MAY PROVIDE FOR THE ARBITRATION OF
GRIEVANCES OVER THE
INTERPRETATION OR APPLICATION OF THE AGREEMENT, BUT NOT OVER ANY
OTHER MATTERS. ARBITRATION
MAY BE INVOKED . . .
/4/ IT SHOULD BE NOTED THAT AFTER THE AGENCY'S PETITION WAS FILED,
THE PRESIDENT AMENDED E.O. 11491 TO ELIMINATE THE REQUIREMENT IN SECTION
13(A) THAT THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE MUST BE
LIMITED TO GRIEVANCES OVER THE INTERPRETATION OR APPLICATION OF THE
AGREEMENT. THE AMENDMENTS MADE BY E.O. 11838 (40 FR 5743, FEBRUARY 7,
1975) BECAME EFFECTIVE ON MAY 7, 1975. SECTION 13(A) AND (B) OF THE
ORDER, AS AMENDED, STATES IN PERTINENT PART:
(A) AN AGREEMENT BETWEEN AN AGENCY AND A LABOR ORGANIZATION SHALL
PROVIDE A PROCEDURE,
APPLICABLE ONLY TO THE UNIT, FOR THE CONSIDERATION OF GRIEVANCES.
THE COVERAGE AND SCOPE OF
THE PROCEDURE SHALL BE NEGOTIATED BY THE PARTIES TO THE AGREEMENT
WITH THE EXCEPTION THAT IT
MAY NOT COVER MATTERS FOR WHICH A STATUTORY APPEAL PROCEDURE EXISTS
AND SO LONG AS IT DOES NOT
OTHERWISE CONFLICT WITH STATUTE OR THIS ORDER. IT SHALL BE THE
EXCLUSIVE PROCEDURE AVAILABLE
TO THE PARTIES AND THE EMPLOYEES IN THE UNIT FOR RESOLVING GRIEVANCES
WHICH FALL WITHIN ITS
COVERAGE. HOWEVER, ANY EMPLOYEE . . .
(B) A NEGOTIATED PROCEDURE MAY PROVIDE FOR ARBITRATION OF GRIEVANCES.
ARBITRATION MAY BE
INVOKED . . .
3 FLRC 569; FLRC NO. 75A-36; SEPTEMBER 9, 1975.
MR. DOUGLAS COOK
8122 PATRICK HENRY BUILDING
601 D STREET, NW.
WASHINGTON, D.C. 20013
(SYNOPSIS) FLRC NO. 75A-36
LABOR LOCAL 12, AFGE (AFL-CIO) AND U.S. DEPARTMENT OF LABOR
(MALLET-PREVOST, ARBITRATOR). THE UNION FILED EXCEPTIONS TO THE
ARBITRATOR'S AWARD WITH THE COUNCIL, CONTENDING, IN ESSENCE, (1) THAT
THE ARBITRATOR'S AWARD CONTAINS A NUMBER OF ERRONEOUS FINDINGS OF FACT;
AND (2) THE ARBITRATOR REACHED AN INCORRECT RESULT IN HIS INTERPRETATION
OF THE AGREEMENT.
COUNCIL ACTION /1/ (SEPTEMBER 9, 1975). AS TO (1), THE COUNCIL HELD
THAT THIS EXCEPTION DOES NOT ASSERT A GROUND UPON WHICH THE COUNCIL WILL
GRANT A PETITION FOR REVIEW OF AN ARBITRATION AWARD. AS TO (2), THE
COUNCIL HELD THAT THIS EXCEPTION PROVIDES NO BASIS FOR ACCEPTANCE OF THE
UNION'S PETITION. ACCORDINGLY, THE COUNCIL DENIED THE UNION'S PETITION
BECAUSE IT FAILED TO MEET THE REQUIREMENTS FOR REVIEW SET FORTH IN
SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE (5 CFR 2411.32).
DEAR MR. COOK:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF AN
ARBITRATOR'S AWARD, AND THE AGENCY'S OPPOSITION THERETO, FILED IN THE:
ABOVE-ENTITLED CASE.
BASED ON THE FACTS DESCRIBED IN THE AWARD, IT APPEARS THAT THE
GRIEVANT, EARL M. SIZEMORE, WAS A GS-12 SUPERVISORY OCCUPATIONAL ANALYST
IN THE DIVISION OF OCCUPATIONAL ANALYSIS, U.S. EMPLOYMENT SERVICE (A
UNIT OF THE DEPARTMENT OF LABOR). AS A RESULT OF A REORGANIZATION,
CERTAIN POSITION CLASSIFICATION CHANGES WERE MADE, INCLUDING THE
DELETION OF THE TITLE "SUPERVISORY" FROM THE GS-12 AND GS-13 SUPERVISORY
OCCUPATIONAL ANALYST POSITIONS SO THAT THESE POSITIONS BECAME
OCCUPATIONAL ANALYSTS, AND SIZEMORE WAS RECLASSIFIED AS A GS-12
OCCUPATIONAL ANALYST. (LATER, FOR BUDGETARY REASONS, AN EMPLOYMENT
CEILING WAS IMPOSED ON THE DIVISION WHICH PREVENTED MANAGEMENT FROM
ACTIVATING TWO ADDITIONAL GS-13 OCCUPATIONAL ANALYST POSITIONS WHICH HAD
BEEN PLANNED.) ALSO, AS A RESULT OF THE REORGANIZATION, A GS-13
TECHNICAL INFORMATION OFFICER JOB WAS ANNOUNCED AS A VACANCY FOR WHICH
QUALIFIED CANDIDATES MIGHT APPLY. SIZEMORE, PATRICIA KING (AN EMPLOYEE
IN THE DIVISION), AND A THIRD CANDIDATE WHO APPLIED WERE RATED "HIGHLY
QUALIFIED" FOR A VACANCY IN THE NEWLY APPROVED POSITION OF GS-13
TECHNICAL INFORMATION OFFICER. LEON LEWIS, THE SELECTING OFFICIAL,
SELECTED KING FOR THE POSITION. SIZEMORE FILED A GRIEVANCE WHICH
PRESENTED TWO QUESTIONS:
(1) WHETHER THE APPLICATION OF SIZEMORE FOR THE POSITION OF TECHNICAL
INFORMATION OFFICER
GS-13, WAS IMPROPERLY DENIED BECAUSE ANOTHER EMPLOYEE APPLICANT HAD
BEEN PRESELECTED FOR THE
POSITION.
(2) WHETHER SIZEMORE WAS IMPROPERLY DENIED A RECOMMENDED PROMOTION TO
GS-13 OCCUPATIONAL
ANALYST, AND ALSO IMPROPERLY DEPRIVED OF HIS CLASSIFICATION AS A
"SUPERVISORY" OCCUPATIONAL
ANALYST.
AS TO (1), THE ARBITRATOR DETERMINED THAT LEWIS DID NOT ENGAGE IN
FAVORITISM AND DID NOT PRESELECT KING. THE ARBITRATOR FOUND THAT THE
UNDERLYING FACTS DID NOT SUPPORT THE "POINT MOST CONSISTENTLY STRESSED
BY THE UNION . . . THAT . . . THE STAFF IN GENERAL HAD THE 'FEELING'
THAT KING WOULD BE THE ONE TO GET (THE JOB), NO MATTER WHO APPLIED." AS
TO (2), THE ARBITRATOR, NOTING THE "CONFLICT IN THE TESTIMONY,"
DETERMINED THAT THE "RECORD DOES NOT SUSTAIN THE CLAIM THAT SIZEMORE WAS
PROMISED A PROMOTION TO GS-13, OR UNFAIRLY DENIED ONE." THE ARBITRATOR
ALSO FOUND THAT SIZEMORE'S CLAIM THAT HE WAS IMPROPERLY DEPRIVED OF HIS
CLASSIFICATION AS A SUPERVISOR IS WITHOUT MERIT. THE ARBITRATOR
ACCORDINGLY DENIED BOTH GRIEVANCES.
THE UNION REQUESTS THAT THE COUNCIL ACCEPT ITS PETITION FOR REVIEW OF
THE ARBITRATOR'S AWARD ON THE BASIS OF TWO EXCEPTIONS DISCUSSED BELOW.
UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE, REVIEW OF
AN ARBITRATION AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON
THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE
EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES
APPLICABLE LAW, APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS
SIMILAR TO THOSE UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE
SUSTAINED BY COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS."
THE UNION'S FIRST EXCEPTION ALLEGES THAT THE ARBITRATOR MADE
INCORRECT DETERMINATIONS UNFAVORABLE TO THE UNION'S POSITION BY
ACCEPTING FALSE AND MISLEADING TESTIMONY GIVEN BY A PRINCIPAL WITNESS
FOR THE AGENCY. THE UNION CITES SEVERAL INSTANCES WHICH IT FEELS
DEMONSTRATE THAT THE CONCLUSIONS OF THE ARBITRATOR WERE BASED UPON FALSE
TESTIMONY. HOWEVER, IT IS FOR THE ARBITRATOR TO DETERMINE THE
CREDIBILITY OF WITNESSES AND THE WEIGHT TO BE GIVEN THEIR TESTIMONY, AND
SUCH DETERMINATIONS ARE NOT TO BE REVIEWED BY THE COURTS. INTERNATIONAL
BROTHERHOOD OF PULP, SULPHITE AND PAPER MILL WORKERS, LOCAL UNION NO.
874 V. ST. REGIS PAPER COMPANY, 362 F.2D 711, 714 (5TH CIR. 1966).
SIMILARLY, THE COUNCIL WILL NOT REVIEW SUCH DETERMINATIONS UNDER SECTION
2411.32 OF ITS RULES OF PROCEDURE. IN ESSENCE, THE UNION APPEARS TO BE
CONTENDING THAT THE ARBITRATOR'S AWARD CONTAINS A NUMBER OF ERRONEOUS
FINDINGS OF FACT. BUT, THE COUNCIL HAS CONSISTENTLY APPLIED THE
PRINCIPLE THAT AN ARBITRATOR'S FINDINGS AS TO THE FACTS ARE NOT TO BE
QUESTIONED BY THE COUNCIL. LOCAL 1164, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO AND BUREAU OF DISTRICT OFFICE OPERATIONS,
BOSTON REGION, SOCIAL SECURITY ADMINISTRATION (SANTER, ARBITRATOR), FLRC
NO. 74A-49 (DECEMBER 20, 1974), REPORT NO. 61; FEDERAL EMPLOYEES METAL
TRADES COUNCIL, VALLEJO, CALIFORNIA AND MARE ISLAND NAVAL SHIPYARD,
VALLEJO, CALIFORNIA (HUGHES, ARBITRATOR), FLRC NO. 73A-20 (SEPTEMBER 17,
1973), REPORT NO. 44. THEREFORE, THE UNION'S FIRST EXCEPTION DOES NOT
ASSERT A GROUND UPON WHICH THE COUNCIL WILL GRANT A PETITION FOR REVIEW
OF AN ARBITRATION AWARD.
THE UNION'S SECOND EXCEPTION ALLEGES THAT "APPLICATION OF THE AWARD
MADE IS IMPROPER ACCORDING TO THE CONTRACT BETWEEN THE PARTIES UNDER
WHICH THE GRIEVANCES WERE FILED." THE UNION PROVIDES NO FURTHER
EXPLANATION REGARDING THIS EXCEPTION NOR DOES IT OFFER FACTS AND
CIRCUMSTANCES IN SUPPORT THEREOF. IT APPEARS THAT THE UNION IS, IN
SUBSTANCE, CONTENDING THAT THE ARBITRATOR REACHED AN INCORRECT RESULT IN
HIS INTERPRETATION OF THE AGREEMENT. THE COUNCIL HAS CONSISTENTLY HELD
THAT THE INTERPRETATION OF CONTRACT PROVISIONS IS A MATTER TO BE LEFT TO
THE ARBITRATOR'S JUDGMENT. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 2649 AND OFFICE OF ECONOMIC OPPORTUNITY (SISK,
ARBITRATOR), FLRC NO. 74A-17 (DECEMBER 5, 1974), REPORT NO. 61.
THEREFORE, THIS EXCEPTION PROVIDES NO BASIS FOR ACCEPTANCE OF THE
UNION'S PETITION .UNDER 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE.
ACCORDINGLY, THE UNION'S PETITION IS DENIED BECAUSE IT FAILS TO MEET
THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.32 OF THE
COUNCIL'S RULES OF PROCEDURE.
BY THE COUNCIL. /1/
CC: L. B. FORT
DEPT. OF LABOR
/1/ THE SECRETARY OF LABOR DID NOT PARTICIPATE IN THIS DECISION.
3 FLRC 565; FLRC NO. 75A-62; SEPTEMBER 2, 1975.
MR. LYNN AGEE
YOUNGDAHL AND LARRISON
100 NORTH MAIN BUILDING
MEMPHIS, TENNESSEE 38103
(SYNOPSIS) FLRC NO. 74A-62
FARMERS HOME ADMINISTRATION, UNITED STATES DEPARTMENT OF AGRICULTURE,
LITTLE ROCK, ARKANSAS, A/SLMR NO. 506. THE ARKANSAS ASSOCIATION OF FMHA
CLERKS REQUESTED RECONSIDERATION OF THE COUNCIL'S DECISION OF JULY 21,
1975, DENYING AS UNTIMELY FILED THE UNION'S PETITION FOR REVIEW OF THE
SUBJECT DECISION OF THE ASSISTANT SECRETARY (REPORT NO. 77).
COUNCIL ACTION (SEPTEMBER 2, 1975). THE COUNCIL FOUND THAT THE
CONDITIONS ADVERTED TO IN THE REQUEST FOR RECONSIDERATION FAILED TO
CONSTITUTE "MOST EXTRAORDINARY CIRCUMSTANCES" SUCH AS TO WARRANT WAIVER
BY THE COUNCIL OF THE TIMELINESS REQUIREMENTS ESTABLISHED IN ITS RULES.
ACCORDINGLY, AS NO PERSUASIVE REASON WAS ADVANCED IN SUPPORT OF THE
REQUEST FOR RECONSIDERATION OF THE COUNCIL DECISION, THE COUNCIL DENIED
THE REQUEST.
DEAR MR. AGEE:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR LETTER OF JULY 28, 1975,
REQUESTING RECONSIDERATION OF THE COUNCIL'S DECISION OF JULY 21, 1975,
DENYING AS UNTIMELY FILED THE PETITION FOR REVIEW WHICH YOU SUBMITTED ON
BEHALF OF THE ARKANSAS ASSOCIATION OF FMHA CLERKS IN THE ABOVE-ENTITLED
CASE.
IN THIS CASE, THE SUBJECT DECISION OF THE ASSISTANT SECRETARY WAS
DATED APRIL 29, 1975, AND, UNDER THE COUNCIL'S RULES OF PROCEDURE
(SECTIONS 2411.13(B), 2411.45 AND 2411.46(C)), YOUR APPEAL WAS DUE IN
THE OFFICE OF THE COUNCIL BY THE CLOSE OF BUSINESS ON MAY 22, 1975.
HOWEVER, BY LETTER OF MAY 12, 1975, YOU REQUESTED AN EXTENSION OF TIME
UP TO AND INCLUDING JUNE 16, 1975, IN WHICH TO FILE YOUR APPEAL.
ON MAY 22, 1975, THE EXECUTIVE DIRECTOR OF THE COUNCIL, PURSUANT TO
SECTION 2411.45(D) OF THE COUNCIL'S RULES, INFORMED YOU IN WRITING, AS
YOU WERE PREVIOUSLY ORALLY ADVISED, THAT "AN EXTENSION OF TIME FOR
FILING AN APPEAL . . . HAS BEEN GRANTED UNTIL THE CLOSE OF BUSINESS ON
JUNE 16, 1975." FURTHER, AS YOU HAD ALSO REQUESTED, A COPY OF THE
COUNCIL'S RULES AND REGULATIONS WAS ENCLOSED WITH THIS WRITTEN
NOTIFICATION.
SECTION 2411.45(A) OF THE COUNCIL'S RULES PROVIDES THAT:
WHEN A TIME LIMIT FOR FILING IS ESTABLISHED UNDER THIS PART, THE
DOCUMENT MUST BE RECEIVED
IN THE OFFICE OF THE COUNCIL BEFORE THE CLOSE OF BUSINESS OF THE LAST
DAY OF THE TIME LIMIT.
ADDITIONALLY, SECTION 2411.45(C) OF THE COUNCIL'S RULES STATES:
WHENEVER A PARTY HAS THE RIGHT OR IS REQUIRED TO DO SOME ACT PURSUANT
TO THIS PART WITHIN A
PRESCRIBED PERIOD AFTER SERVICE OF A NOTICE OR OTHER PAPER UPON HIM
AND THE NOTICE OR PAPER IS
SERVED ON HIM BY MAIL, 3 DAYS SHALL BE ADDED TO THE PRESCRIBED
PERIOD: PROVIDED, HOWEVER,
THAT 3 DAYS SHALL NOT BE ADDED IF ANY EXTENSION OF TIME MAY HAVE BEEN
GRANTED. (EMPHASIS
ADDED.)
ACCORDINGLY, UNDER SECTION 2411.45(A) AND (C) OF THE COUNCIL'S RULES,
AND AS YOU WERE EXPRESSLY INFORMED IN THE ABOVE-MENTIONED COUNCIL LETTER
OF MAY 22, 1975, YOUR APPEAL WAS DUE IN THE COUNCIL'S OFFICE NO LATER
THAN THE CLOSE OF BUSINESS ON JUNE 16, 1975. HOWEVER, YOUR APPEAL WAS
NOT FILED IN THE OFFICE OF THE COUNCIL UNTIL JUNE 17, 1975, OR ONE DAY
LATE, AND NO FURTHER EXTENSION OF THE TIME LIMITS FOR FILING HAD EITHER
BEEN REQUESTED BY YOU OR GRANTED BY THE COUNCIL UNDER SECTION 2411.45(D)
OF THE COUNCIL RULES.
THEREFORE ON JULY 21, 1975, THE COUNCIL, CONSISTENT WITH ESTABLISHED
COUNCIL PRACTICE IN LIKE CIRCUMSTANCES, DENIED YOUR PETITION FOR REVIEW
AS UNTIMELY FILED. SEE, E.G., AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES LOCAL 2677 AND OFFICE OF ECONOMIC OPPORTUNITY (DOUGHERTY,
ARBITRATOR), FLRC NO. 74A-4 (APRIL 29, 1974), REPORT NO. 52; AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2677, AND OFFICE OF
ECONOMIC OPPORTUNITY (KLEEB, ARBITRATOR), FLRC NO. 74A-57 (SEPTEMBER
20, 1974), REPORT NO. 56.
IN YOUR REQUEST FOR RECONSIDERATION, YOU ARGUE, IN EFFECT, THAT THE
TIME LIMITS PROVIDED IN THE COUNCIL'S RULES SHOULD BE WAIVED BECAUSE,
AMONG OTHER THINGS, THE UNTIMELY FILING RESULTED FROM A DELAY OF THE
POSTAL SERVICE.
IN ITS INFORMATION ANNOUNCEMENT OF SEPTEMBER 27, 1972, THE COUNCIL
STATED, WITH REGARD TO UNTIMELY PETITIONS THAT: " . . . SINCE THE
COUNCIL'S RULES PROVIDE A METHOD FOR REQUESTING AN EXTENSION OF TIME
LIMITS BEFORE SUCH TIME LIMITS EXPIRE, COUNCIL POLICY IS NOT TO WAIVE
UNTIMELY FILING EXCEPT IN THE MOST EXTRAORDINARY CIRCUMSTANCES." THE
COUNCIL HAS UNIFORMLY HELD THAT THE LATE FILING OF AN APPEAL AS THE
RESULT OF A POSTAL SERVICE DELAY IS NOT SUCH A "MOST EXTRAORDINARY
CIRCUMSTANCE" AS TO WARRANT THE WAIVER OF THE COUNCIL'S TIMELINESS
REQUIREMENTS. SEE E.G. DEPARTMENT OF THE NAVY, PEARL HARBOR NAVAL
SHIPYARD, ASSISTANT SECRETARY CASE NO. 73-573, FLRC NO. 75A-11 (APRIL
17, 1975), DENYING REQUEST FOR RECONSIDERATION OF DENIAL OF APPEAL
(FEBRUARY 14, 1975), REPORT NO. 63. LIKEWISE IN THE CONTEXT OF THE
PRESENT CASE, THE COUNCIL FINDS THAT THE CONDITIONS ADVERTED TO IN YOUR
REQUEST FOR RECONSIDERATION FAIL TO CONSTITUTE "MOST EXTRAORDINARY
CIRCUMSTANCES" SUCH AS TO WARRANT WAIVER BY THE COUNCIL OF THE
TIMELINESS REQUIREMENTS ESTABLISHED IN ITS RULES.
ACCORDINGLY, AS YOUR LETTER OF JULY 28, 1975, ADVANCES NO PERSUASIVE
REASON IN SUPPORT OF YOUR REQUEST FOR RECONSIDERATION OF THE COUNCIL
DECISION IN THE INSTANT CASE, YOUR REQUEST IS DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
D. L. SPRADLIN
AGRICULTURE DEPT.
3 FLRC 562; FLRC NO. 74A-57; AUGUST 29, 1975.
MR. JAMES R. ROSA, STAFF COUNSEL
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
1325 MASSACHUSETTS AVENUE, NW.
WASHINGTON, D.C. 20005
(SYNOPSIS) FLRC NO. 74A-57
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2677, AND OFFICE
OF ECONOMIC OPPORTUNITY (KLEEB, ARBITRATOR). THE UNION FILED A "MOTION
FOR ENFORCEMENT OF COMPLIANCE" WITH THE ARBITRATOR'S AWARD. (THE
COUNCIL PREVIOUSLY DENIED THE AGENCY'S PETITION FOR REVIEW OF THE
ARBITRATOR'S AWARD AS HAVING BEEN UNTIMELY FILED (REPORT NO. 56)). UPON
OPPOSITION TO THE MOTION BY THE AGENCY ASSERTING THAT IT HAD COMPLIED
WITH CERTAIN PARTS OF THE AWARD, THE UNION REQUESTED THAT THE COUNCIL
REMAND THE CASE TO THE ARBITRATOR FOR CLARIFICATION OF THE AWARD WHILE
RETAINING JURISDICTION ON THE MOTION.
COUNCIL ACTION (AUGUST 29, 1975). RELYING IN PART ON ITS DECISION IN
DEPARTMENT OF THE ARMY, ABERDEEN PROVING GROUND, A/SLMR NO. 412, FLRC
NO. 74A-46 (MARCH 20, 1975), REPORT NO. 67, WHEREIN THE COUNCIL
ADDRESSED THE ISSUE OF THE ENFORCEMENT OF ARBITRATION AWARDS, THE
COUNCIL HELD THAT THE ASSISTANT SECRETARY MAY CONSIDER, IN PROCESSING A
CASE OF ENFORCEMENT OF AN ARBITRATION AWARD THROUGH HIS UNFAIR LABOR
PRACTICE PROCEDURES, A CONTENTION THAT AN AWARD REQUIRES CLARIFICATION;
AND HE MAY DIRECT THE PARTIES TO RESUBMIT THE AWARD TO THE ARBITRATOR
FOR CLARIFICATION AND INTERPRETATION. ACCORDINGLY, THE COUNCIL DENIED
THE UNION'S "MOTION FOR ENFORCEMENT OF COMPLIANCE" AND ITS REQUEST TO
REMAND THE CASE TO THE ARBITRATOR FOR CLARIFICATION.
DEAR MR. ROSA:
REFERENCE IS MADE TO YOUR "MOTION FOR ENFORCEMENT OF COMPLIANCE" WITH
THE ARBITRATOR'S AWARD IN THE ABOVE-ENTITLED CASE. IN THIS CASE, THE
AGENCY'S PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD WAS DENIED BY THE
COUNCIL AS HAVING BEEN UNTIMELY FILED. AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2677, AND OFFICE OF ECONOMIC OPPORTUNITY
(KLEEB, ARBITRATOR), FLRC NO. 74A-57 (SEPTEMBER 20, 1974), REPORT NO.
56.
THE AGENCY, IN OPPOSITION TO YOUR MOTION FOR ENFORCEMENT, ASSERTS
THAT THE AGENCY HAS COMPLIED WITH PARTS 1 THROUGH 3 OF THE ARBITRATOR'S
AWARD. IN RESPONSE, YOU CONTEND THAT THE AGENCY'S OPPOSITION REVEALS AN
AMBIGUITY IN THE ARBITRATOR'S AWARD LEADING TO A CONTESTED ISSUE OF FACT
AS TO WHETHER THE AGENCY HAS COMPLIED WITH PARTS 1-3 OF THE AWARD;
THAT, WITHOUT CLARIFICATION BY THE ARBITRATOR, WHERE APPEARS TO BE AN
INSUFFICIENT BASIS UPON WHICH TO DETERMINE WHETHER THE AGENCY'S ACTIONS
CONSTITUTE COMPLIANCE; AND, THEREFORE, YOU REQUEST THAT THE COUNCIL
REMAND THIS CASE TO THE ARBITRATOR FOR CLARIFICATION WHILE RETAINING
JURISDICTION ON YOUR MOTION FOR ENFORCEMENT.
THE COUNCIL HAS ISSUED ITS DECISION IN DEPARTMENT OF THE ARMY,
ABERDEEN PROVING GROUND AND INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, LOCAL LODGE 2424, A/SLMR NO. 412, FLRC NO. 74A-46
(MARCH 20, 1975), REPORT NO. 67. IN THAT CASE, THE COUNCIL ADDRESSED
THE ISSUE OF THE ENFORCEMENT OF ARBITRATION AWARDS AND STATED, IN
PERTINENT PART:
. . . (T)HE ENFORCEMENT OF ARBITRATION AWARDS WAS NOT A ROLE
CONTEMPLATED FOR THE COUNCIL IN
CARRYING OUT ITS FUNCTION OF CONSIDERING "EXCEPTIONS TO ARBITRATION
AWARDS" UNDER SECTION
4(C)(3) OF THE ORDER AND AS AMPLIFIED IN THE STUDY COMMITTEE REPORT
WHICH LED TO THE ISSUANCE
OF THE ORDER . . . INSTEAD, THE RESOLUTION OF ENFORCEMENT QUESTIONS
UNDER THE UNFAIR LABOR
PRACTICE PROCEDURES OF THE ASSISTANT SECRETARY IS REQUIRED TO ASSURE
THE EFFECTUATION OF THE
PURPOSES OF THE ORDER.
THEREFORE, THE COUNCIL HOLDS THAT THE ASSISTANT SECRETARY OF LABOR
HAS THE AUTHORITY UNDER
SECTIONS 6(A)(4) AND 19 OF THE ORDER TO DECIDE UNFAIR LABOR PRACTICE
COMPLAINTS WHICH ALLEGE
THAT A PARTY HAS REFUSED TO COMPLY WITH AN ARBITRATION AWARD ISSUED
UNDER A GRIEVANCE
PROCEDURE CONTAINED IN AN AGREEMENT NEGOTIATED UNDER THE ORDER. SUCH
AUTHORITY OBTAINS: (1)
IF THE PARTY HAS FAILED TO FILE WITH THE COUNCIL A PETITION FOR
REVIEW OF THE AWARD UNDER THE
COUNCIL'S RULES OF PROCEDURE, OR (2) IF SUCH APPEAL WAS FILED BUT THE
COUNCIL REJECTED
ACCEPTANCE OF THE APPEAL OR ISSUED A DECISION UPHOLDING THE AWARD . .
.
THE ASSISTANT SECRETARY MAY CONSIDER, IN PROCESSING A CASE OF
ENFORCEMENT OF AN ARBITRATION AWARD THROUGH HIS UNFAIR LABOR PRACTICE
PROCEDURES, A CONTENTION THAT AN AWARD REQUIRES CLARIFICATION. SHOULD
THE ASSISTANT SECRETARY DETERMINE UNDER THOSE CIRCUMSTANCES THAT A
DISPUTE EXISTS BETWEEN THE PARTIES OVER THE MEANING OF AN AWARD AND THAT
CLARIFICATION AND INTERPRETATION OF THE AWARD IS NECESSARY TO RESOLVE
THE DISPUTE, HE MAY DIRECT THE PARTIES TO RESUBMIT THE AWARD TO THE
ARBITRATOR FOR SUCH CLARIFICATION AND INTERPRETATION AS DOES THE COUNCIL
WHEN CONSIDERING PETITIONS FOR REVIEW OF AN ARBITRATOR'S AWARD.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2532 AND SMALL
BUSINESS ADMINISTRATION (DORSEY, ARBITRATOR), FLRC NO. 73A-4 (FEBRUARY
12, 1974), REPORT NO. 49.
ACCORDINGLY, THE COUNCIL MUST DENY YOUR "MOTION FOR ENFORCEMENT OF
COMPLIANCE" WITH THE ARBITRATOR'S AWARD IN THE ABOVE-ENTITLED CASE AND
YOUR REQUEST TO REMAND THIS CASE TO THE ARBITRATOR FOR CLARIFICATION.
BY THE COUNCIL.
CC: R. G. JOHNSON
CSA
3 FLRC 559; FLRC NO. 74A-4; AUGUST 29, 1975.
MR. JAMES R. ROSA, STAFF COUNSEL
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
1325 MASSACHUSETTS AVENUE, NW.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 74A-4
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 2677 AND OFFICE OF
ECONOMIC OPPORTUNITY (DOUGHERTY, ARBITRATOR). THE UNION FILED A "MOTION
FOR ENFORCEMENT OF COMPLIANCE" WITH THE ARBITRATOR'S AWARD. (THE
COUNCIL PREVIOUSLY DENIED THE AGENCY'S PETITION FOR REVIEW OF THE
SUBJECT AWARD (REPORT NO. 52)).
COUNCIL ACTION (AUGUST 29, 1975). RELYING ON ITS DECISION IN
DEPARTMENT OF THE ARMY, ABERDEEN PROVING GROUND, A/SLMR NO. 412, FLRC
NO. 74A-46 (MARCH 20, 1975), REPORT NO. 67, WHEREIN THE COUNCIL
ADDRESSED THE ISSUE OF ENFORCEMENT OF ARBITRATION AWARDS, THE COUNCIL
DENIED THE UNION'S "MOTION FOR ENFORCEMENT OF COMPLIANCE" WITH THE
ARBITRATOR'S AWARD.
DEAR MR. ROSA:
REFERENCE IS MADE TO YOUR "MOTION FOR ENFORCEMENT OF COMPLIANCE" WITH
THE ARBITRATOR'S AWARD IN THE ABOVE-ENTITLED CASE. IN THIS CASE, THE
AGENCY'S PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD WAS DENIED BY THE
COUNCIL AS HAVING BEEN UNTIMELY FILED. AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES LOCAL 2677 AND OFFICE OF ECONOMIC OPPORTUNITY
(DOUGHERTY, ARBITRATOR), FLRC NO. 74A-4 (APRIL 29, 1974), REPORT NO. 52
.
THE COUNCIL HAS ISSUED ITS DECISION IN DEPARTMENT OF THE ARMY,
ABERDEEN PROVING GROUND AND INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, LOCAL LODGE 2424, A/SLMR NO. 412, FLRC NO. 74A-46
(MARCH 20, 1975), REPORT NO. 67. IN THAT CASE, THE COUNCIL ADDRESSED
THE ISSUE OF THE ENFORCEMENT OF ARBITRATION AWARDS AND STATED, IN
PERTINENT PART:
. . . (T)HE ENFORCEMENT OF ARBITRATION AWARDS WAS NOT A ROLE
CONTEMPLATED FOR THE COUNCIL
IN CARRYING OUT ITS FUNCTION OF CONSIDERING "EXCEPTIONS TO
ARBITRATION AWARDS" UNDER SECTION
4(C)(3) OF THE ORDER AND AS AMPLIFIED IN THE STUDY COMMITTEE REPORT
WHICH LED TO THE ISSUANCE
OF THE ORDER . . . INSTEAD, THE RESOLUTION OF ENFORCEMENT QUESTIONS
UNDER THE UNFAIR LABOR
PRACTICE PROCEDURES OF THE ASSISTANT SECRETARY IS REQUIRED TO ASSURE
THE EFFECTUATION OF THE
PURPOSES OF THE ORDER.
THEREFORE, THE COUNCIL HOLDS THAT THE ASSISTANT SECRETARY OF LABOR
HAS THE AUTHORITY UNDER
SECTIONS 6(A)(4) AND 19 OF THE ORDER TO DECIDE UNFAIR LABOR PRACTICE
COMPLAINTS WHICH ALLEGE
THAT A PARTY HAS REFUSED TO COMPLY WITH AN ARBITRATION AWARD ISSUED
UNDER A GRIEVANCE
PROCEDURE CONTAINED IN AN AGREEMENT NEGOTIATED UNDER THE ORDER. SUCH
AUTHORITY OBTAINS: (1)
IF THE PARTY HAS FAILED TO FILE WITH THE COUNCIL A PETITION FOR
REVIEW OF THE AWARD UNDER THE
COUNCIL'S RULES OF PROCEDURE, OR (2) IF SUCH APPEAL WAS FILED BUT THE
COUNCIL REJECTED
ACCEPTANCE OF THE APPEAL OR ISSUED A DECISION UPHOLDING THE AWARD . .
. (EMPHASES ADDED.)
ACCORDINGLY, THE COUNCIL MUST DENY YOUR "MOTION FOR ENFORCEMENT OF
COMPLIANCE" WITH THE ARBITRATOR'S AWARD IN THE ABOVE-ENTITLED CASE.
BY THE COUNCIL.
CC: R. G. JOHNSON
CSA
3 FLRC 555; FLRC NO. 75A-63; AUGUST 15, 1975.
MR. RALPH C. REEDER
CHIEF, PERSONNEL DIVISION
NATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION
U.S. DEPARTMENT OF COMMERCE
ROCKVILLE, MARYLAND 20852
(SYNOPSIS) FLRC NO. 75A-63
NATIONAL WEATHER SERVICE, N.O.A.A., U.S. DEPARTMENT OF COMMERCE AND
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES (STRONGIN, ARBITRATOR).
THE AGENCY FILED AN EXCEPTION TO THE ARBITRATOR'S AWARD, WHICH AWARD
DECIDED A GENERAL QUESTION OF INTERPRETATION OF A PROVISION IN THE
PARTIES' AGREEMENT, CONTENDING THAT THE AGENCY IS UNABLE "TO CLEARLY
UNDERSTAND THE (ARBITRATOR'S) DECISION AND SO PROVIDE A MEANINGFUL
RESPONSE TO FUTURE UNION REQUESTS ON THE SAME MATTER."
COUNCIL ACTION (AUGUST 15, 1975). THE COUNCIL DETERMINED THAT VIEWED
LITERALLY, THE AGENCY'S EXCEPTION DOES NOT STATE A GROUND UPON WHICH THE
COUNCIL WILL GRANT REVIEW OF AN ARBITRATION AWARD; HOWEVER, VIEWED AS A
CONTENTION THAT THE ARBITRATOR'S AWARD IS INCOMPLETE, AMBIGUOUS OR
CONTRADICTORY SO AS TO MAKE IMPLEMENTATION OF THE AWARD IMPOSSIBLE, THE
EXCEPTION DOES STATE A GROUND UPON WHICH REVIEW WILL BE GRANTED. THE
COUNCIL FOUND, NEVERTHELESS, THAT EVEN IF VIEWED IN THE LATTER MANNER,
THE EXCEPTION IS NOT SUPPORTED BY FACTS AND CIRCUMSTANCES IN THE
AGENCY'S PETITION. ACCORDINGLY, THE COUNCIL DENIED THE AGENCY'S
PETITION FOR REVIEW SINCE IT FAILED TO MEET THE STANDARDS FOR REVIEW SET
FORTH IN SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE (5 CFR
2411.32).
DEAR MR. REEDER.
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF AN
ARBITRATOR'S AWARD, AND THE UNION'S OPPOSITION THERETO, IN THE
ABOVE-ENTITLED CASE.
THE ARBITRATOR IN HIS DECISION STATED THAT THE PARTIES PRESENTED "A
QUESTION OF INTERPRETATION" OF ARTICLE 17, SECTION 10 /1/ OF THEIR 1974
COLLECTIVE BARGAINING AGREEMENT, WHICH PROVIDES:
ANY EMPLOYEE WHO HAS APPLIED FOR PROMOTION AND WHO WAS NOT SELECTED
WILL HAVE THE RIGHT TO
REVIEW ALL THE DATA, PERMISSIBLE UNDER EXISTING REGULATIONS RELIED
UPON IN MAKING THE
SELECTION FOR THE POSITION. THE EMPLOYEE MAY DELEGATE THIS RIGHT TO
THE UNION OR HIS
REPRESENTATIVE.
THE UNION CONSTRUED THIS SECTION "AS ENTITLING THE NON-PROMOTED
EMPLOYEE TO ALL DATA EXCEPT THAT WHICH IS NOT PERMISSIBLE UNDER EXISTING
REGULATIONS." THE AGENCY, ON THE OTHER HAND, CONSTRUED THE LANGUAGE "AS
LIMITING THE EMPLOYEE TO THE DATA SPECIFICALLY REQUIRED BY EXISTING
REGULATIONS." THE ARBITRATOR, SPEAKING IN "BROAD, GENERAL TERMS,"
CONCLUDED THAT HE TENDED TO AGREE WITH THE UNION. THE ARBITRATOR
DETERMINED THAT "(T)HE GRIEVANCE IS SUSTAINED TO THE EXTENT THAT THE
UNION IS HELD ENTITLED TO RELEVANT DATA NOT PRECLUDED BY APPLICABLE
CONTROLLING REGULATIONS." HOWEVER, THE ARBITRATOR NOTED THAT THE CASE
DID NOT COME BEFORE HIM "IN TERMS OF A SPECIFIC REQUEST FOR, AND DENIAL
OF, PARTICULAR DATA WITH RESPECT TO A PARTICULAR PROMOTION," AND THAT
"NO 'SPECIFICS' . . . (WERE) EITHER PRESENTED OR DECIDED" BY HIM.
THE AGENCY REQUESTS THAT THE COUNCIL ACCEPT ITS PETITION FOR REVIEW
OF THE ARBITRATOR'S AWARD AND SEEKS A "CLARIFIED, UNDERSTANDABLE AND
APPLICABLE AWARD" ON THE BASIS OF ONE EXCEPTION DISCUSSED BELOW.
UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE, REVIEW OF
AN ARBITRATION AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON
THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE
EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES
APPLICABLE LAW, APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS
SIMILAR TO THOSE UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE
SUSTAINED BY COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS."
THE AGENCY'S EXCEPTION CONTENDS THAT THE AGENCY IS UNABLE "TO CLEARLY
UNDERSTAND THE (ARBITRATOR'S) DECISION AND SO PROVIDE A MEANINGFUL
RESPONSE TO FUTURE UNION REQUESTS ON THE SAME MATTER." VIEWED LITERALLY,
THIS EXCEPTION DOES NOT STATE A GROUND UPON WHICH THE COUNCIL WILL GRANT
REVIEW OF AN ARBITRATION AWARD UNDER SECTION 2411.32. THAT IS, THE
COUNCIL HAS NEVER GRANTED REVIEW BASED UPON SUCH AN EXCEPTION NOR DOES
THE EXCEPT ASSERT A GROUND SIMILAR TO THOSE UPON WHICH CHALLENGES TO
LABOR ARBITRATION AWARDS ARE SUSTAINED BY COURTS IN PRIVATE SECTOR
CASES.
THE AGENCY'S EXCEPTION, HOWEVER, MAY BE VIEWED AS A CONTENTION THAT
THE ARBITRATOR'S AWARD IS INCOMPLETE, AMBIGUOUS OR CONTRADICTORY SO AS
TO MAKE IMPLEMENTATION OF THE AWARD IMPOSSIBLE. THIS IS A GROUND FOR
REVIEW OF AN AWARD BY COURTS IN PRIVATE SECTOR CASES WHICH, IF
SUPPORTED, NECESSITATES REMANDING THE AWARD TO THE ARBITRATOR FOR
CLARIFICATION AND INTERPRETATION. SEE, E.G., TEXTRON, INC. V. AUTO
WORKERS, LOCAL 516, 500 F.2D 921, 86 LRRM 3240 (2D CIR. 1974);
MACHINISTS, LODGE 917 V. AIR PRODUCTS & CHEMICALS, INC., 341 F.SUPP.
874, 80 LRRM 3204 (E.D. PA. 1972). THE FEDERAL LABOR RELATIONS COUNCIL
WILL GRANT A PETITION FOR REVIEW OF ARBITRATION AWARDS ON SIMILAR
GROUNDS UNDER SECTION 2411.32 OF ITS RULES. CF., AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2532 AND SMALL BUSINESS ADMINISTRATION
(DORSEY, ARBITRATOR), FLRC NO. 73A-4 (FEBRUARY 23, 1974), REPORT NO.
49. THUS, AN EXCEPTION TO AN ARBITRATION AWARD WHICH CONTENDS THAT THE
AWARD IS INCOMPLETE, AMBIGUOUS OR CONTRADICTORY SO AS TO MAKE
IMPLEMENTATION OF THE AWARD IMPOSSIBLE IS A GROUND FOR REVIEW OF THE
AWARD UNDER SECTION 2411.32 OF THE COUNCIL'S RULES. NEVERTHELESS, SO
VIEWED, THIS EXCEPTION IS NOT SUPPORTED BY FACTS AND CIRCUMSTANCES IN
THE AGENCY'S PETITION AS REQUIRED BY SECTION 2411.32 OF THE COUNCIL'S
RULES. AS INDICATED PREVIOUSLY, THE PARTIES REQUESTED THE ARBITRATOR TO
RENDER, IN EFFECT, AN ADVISORY OPINION ON A GENERAL QUESTION WITHOUT
REGARD TO A SPECIFIC INDIVIDUAL GRIEVANCE, AND IT WAS THIS GENERAL
QUESTION WHICH THE ARBITRATOR DECIDED. THE AGENCY'S EXCEPTION DOES NOT
CONTEND THAT IMPLEMENTATION OF THE AWARD IN THE PRESENT CASE IS
IMPOSSIBLE. RATHER, THE EXCEPTION IS SIMPLY A PREDICTION THAT THE AWARD
WILL NOT PROVIDE THE AGENCY WITH A MEANINGFUL RESPONSE TO UNION REQUESTS
FOR DATA IN FUTURE CASES. DISAGREEMENTS WHICH MAY ARISE WITH RESPECT TO
AGENCY RESPONSES TO SUCH UNION REQUESTS ARE MATTERS TO BE RESOLVED AT
THE TIME THEY ARISE UNDER THE PROCEDURES NEGOTIATED BY THE PARTIES. OF
COURSE, THE PARTIES MAY JOINTLY RESUBMIT THE AWARD IN THIS CASE TO THE
ARBITRATOR IF THEY DESIRE ITS CLARIFICATION OR INTERPRETATION.
ACCORDINGLY, THE AGENCY'S PETITION FOR REVIEW IS DENIED BECAUSE IT
FAILS TO MEET THE STANDARDS FOR REVIEW SET FORTH IN SECTION 2411.32 OF
THE COUNCIL'S RULES OF PROCEDURE.
BY THE COUNCIL.
CC: P. COLLINS
NAGE
/1/ THE ARBITRATOR INADVERTENTLY REFERRED TO SECTION 10 AS PARAGRAPH
10.
3 FLRC 552; FLRC NO. 75A-55; AUGUST 15, 1975.
MS. LISA RENEE STRAX
STAFF ATTORNEY, NATIONAL FEDERATION
OF FEDERAL EMPLOYEES
1737 H STREET, NW.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 75A-55
DEPARTMENT OF THE AIR FORCE, K. I. SAWYER AIR FORCE BASE, MICHIGAN,
ASSISTANT SECRETARY CASE NO. 52-5862 (CA). THE ASSISTANT SECRETARY, IN
AGREEMENT WITH THE ASSISTANT REGIONAL DIRECTOR, FOUND THAT A REASONABLE
BASIS HAD NOT BEEN ESTABLISHED FOR THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES' UNFAIR LABOR PRACTICE COMPLAINT, WHICH ALLEGED A VIOLATION OF
SECTION 19(A)(6) OF THE ORDER. THE UNION APPEALED TO THE COUNCIL,
CONTENDING THAT THE ASSISTANT SECRETARY'S DECISION WAS ARBITRARY AND
CAPRICIOUS AND PRESENTS MAJOR POLICY ISSUES.
COUNCIL ACTION (AUGUST 15, 1975). THE COUNCIL HELD THAT THE
ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR TO BE ARBITRARY AND
CAPRICIOUS AND DOES NOT PRESENT A MAJOR POLICY ISSUE. ACCORDINGLY,
SINCE THE UNION'S APPEAL FAILED TO MEET THE REQUIREMENTS FOR REVIEW SET
FORTH IN SECTION 2411.12 OF THE COUNCIL'S RULES AND REGULATIONS (5 CFR
2411.12), THE COUNCIL DENIED THE PETITION FOR REVIEW.
DEAR MS. STRAX:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
THE ASSISTANT SECRETARY, IN AGREEMENT WITH THE ASSISTANT REGIONAL
DIRECTOR, FOUND THAT A REASONABLE BASIS HAD NOT BEEN ESTABLISHED FOR
NFFE'S COMPLAINT WHICH ALLEGED A VIOLATION OF SECTION 19(A)(6) OF THE
ORDER. ON MAY 9, 1974, THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1256 (NFFE) WAS NOTIFIED BY A LETTER FROM THE ACTIVITY THAT THE
ENVIRONMENTAL PAY DIFFERENTIAL FOR EMPLOYEES IN THE BARGAINING UNIT
WOULD BE REDUCED FROM HIGH DEGREE HAZARD (8 PERCENT) TO LOW DEGREE
HAZARD (4 PERCENT) EFFECTIVE ON MAY 19, 1974. THE COMPLAINT ALLEGED
THAT THE ACTIVITY HAD FAILED TO CONSULT, CONFER, OR NEGOTIATE WITH NFFE
BEFORE REACHING A "FINAL DECISION" TO REDUCE ENVIRONMENTAL PAY
DIFFERENTIAL, AND WITHOUT AFFORDING NFFE AN OPPORTUNITY TO DISCUSS THE
ADVERSE IMPACT OF THAT DECISION ON UNIT EMPLOYEES BEFORE IMPLEMENTING
THE ENVIRONMENTAL PAY REDUCTION. IN CONCLUDING THAT A REASONABLE BASIS
HAD NOT BEEN ESTABLISHED FOR THE COMPLAINT, THE ASSISTANT SECRETARY
NOTED THAT "AT NO TIME BEFORE MAY 9, 1974, DID THE NFFE REQUEST TO MEET
AND CONFER CONCERNING THE IMPACT SUCH PAY REDUCTIONS WOULD HAVE ON UNIT
EMPLOYEES, ALTHOUGH IT IS UNDISPUTED THAT THE NFFE WAS NOTIFIED OF THE
PLANNED REDUCTIONS PRIOR TO THAT TIME."
IN YOUR PETITION FOR REVIEW YOU CONTEND THAT THE ASSISTANT
SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS BECAUSE (1) HE FAILED
TO ACKNOWLEDGE AND CONSIDER THE PRESENCE OF UNRESOLVED QUESTIONS OF FACT
CONCERNING THE NATURE AND EXTENT OF PRIOR DISCUSSIONS BETWEEN THE
PARTIES ON THE ISSUE OF ENVIRONMENTAL PAY REDUCTIONS, AND (2) HE FAILED
TO RECOGNIZE NFFE'S RIGHT TO A HEARING TO RESOLVE THE CONTESTED FACTUAL
ISSUES RAISED BY THE UNSUBSTANTIATED ALLEGATIONS IN ITS COMPLAINT. YOU
FURTHER CONTEND THAT SEVERAL MAJOR POLICY ISSUES ARE PRESENTED AS TO (1)
WHETHER THE RULING OF U.S. DEPARTMENT OF AIR FORCE, NORTON AIR FORCE
BASE, A/SLMR NO. 261 OUGHT TO GOVERN THIS CASE PRIOR TO A HEARING ON THE
ISSUES OF FACT RAISED; (2) WHETHER DEPARTMENT OF THE NAVY, NAVAL PLANT
REPRESENTATIVE OFFICE, BALTIMORE, MARYLAND, A/SLMR NO. 486 IS
DETERMINATIVE OF THIS CASE; AND (3) WHAT GUIDELINES SHOULD BE FOLLOWED
IN DETERMINING WHETHER TO DISMISS A COMPLAINT OR PETITION PRIOR TO A
HEARING.
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW DOES NOT MEET THE
REQUIREMENTS OF SECTION 2411.12 OF THE COUNCIL'S RULES; THAT IS, THE
DECISION OF THE ASSISTANT SECRETARY DOES NOT APPEAR TO BE ARBITRARY AND
CAPRICIOUS OR TO PRESENT A MAJOR POLICY ISSUE.
SECTION 6(D) OF THE ORDER PROVIDES: "THE ASSISTANT SECRETARY SHALL
PRESCRIBE REGULATIONS NEEDED TO ADMINISTER HIS FUNCTIONS UNDER THIS
ORDER," ONE OF WHICH IS TO "DECIDE UNFAIR LABOR PRACTICE COMPLAINTS . .
. " PURSUANT TO SECTION 6(A)(4) OF THE ORDER. SECTION 203.7(A) OF THE
ASSISTANT SECRETARY'S REGULATIONS (REDESIGNATED SECTION 203.8(A) AS OF
MAY 7, 1975) PROVIDES:
IF THE ASSISTANT REGIONAL DIRECTOR DETERMINES THAT . . . A REASONABLE
BASIS FOR THE
COMPLAINT HAS NOT BEEN ESTABLISHED . . . HE MAY DISMISS THE
COMPLAINT.
FURTHER, SECTION 203.5(C) (REDESIGNATED SECTION 203.6(E) AS OF MAY 7,
1975) STATES:
THE COMPLAINANT SHALL BEAR THE BURDEN OF PROOF AT ALL STAGES OF THE
PROCEEDINGS, REGARDING
MATTERS ALLEGED IN ITS COMPLAINT . . .
AS THE COUNCIL PREVIOUSLY NOTED IN DEPARTMENT OF THE ARMY, INDIANA
ARMY AMMUNITION PLANT, CHARLESTOWN, INDIANA, FLRC NO. 74A-90 (MAY 9,
1975), REPORT NO. 69, THE FOREGOING REGULATIONS WERE PROMULGATED BY THE
ASSISTANT SECRETARY PURSUANT TO THE ORDER AND CONSISTENT WITH THE STUDY
COMMITTEE REPORT AND RECOMMENDATIONS, WHICH PROVIDES THAT "(I)F THE
ASSISTANT SECRETARY FINDS THAT . . . A REASONABLE BASIS FOR THE
COMPLAINT HAS NOT BEEN ESTABLISHED, . . . HE MAY DISMISS THE COMPLAINT."
HIS DECISION IN THIS INSTANT CASE WAS BASED UPON THE APPLICATION OF
THESE REGULATIONS, AND YOUR PETITION PRESENTS NO PERSUASIVE REASONS TO
SHOW THAT THE ASSISTANT SECRETARY WAS WITHOUT AUTHORITY TO ESTABLISH THE
ABOVE REGULATIONS, OR THAT HE WRONGLY APPLIED THESE REGULATIONS TO THE
FACTS AND CIRCUMSTANCES OF THIS CASE.
BECAUSE THE ASSISTANT SECRETARY'S DECISION DOES NOT PRESENT A MAJOR
POLICY ISSUE, AND DOES NOT APPEAR TO BE ARBITRARY AND CAPRICIOUS, YOUR
APPEAL FAILS TO MEET THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION
2411.12 OF THE COUNCIL'S RULES AND REGULATIONS. ACCORDINGLY, YOUR
PETITION FOR REVIEW IS HEREBY DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
COL. D. R. JAMES
AIR FORCE
3 FLRC 547; FLRC NO. 75A-50; AUGUST 15, 1975.
MR. MICHAEL J. RISELLI
GENERAL COUNSEL
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
2139 WISCONSIN AVENUE, NW.
WASHINGTON, D.C. 20007
(SYNOPSIS) FLRC NO. 75A-50
AIRWAY FACILITIES DIVISION, FEDERAL AVIATION ADMINISTRATION, EASTERN
REGION AND NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R2-10R
(KRONISH, ARBITRATOR). THE ARBITRATOR CONCLUDED THAT THE AGENCY HAD NOT
VIOLATED THE PARTIES' AGREEMENT IN THE DETAILING OF FIVE EMPLOYEES. THE
UNION FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD WITH THE COUNCIL,
CONTENDING THAT (1) IN EFFECT, THE AWARD VIOLATES APPROPRIATE
REGULATIONS; (2) THE AWARD VIOLATES SECTION 12 OF THE ORDER; AND (3)
IN SUBSTANCE, THE ARBITRATOR REACHED AN INCORRECT RESULT IN HIS
INTERPRETATION OF THE PARTIES' AGREEMENT.
COUNCIL ACTION (AUGUST 15, 1975). WITH REGARD TO (1) AND (2), THE
COUNCIL HELD THAT ALTHOUGH THE EXCEPTIONS STATE GROUNDS UPON WHICH THE
COUNCIL WILL GRANT REVIEW OF AN ARBITRATOR'S AWARD, THEY PROVIDE NO
BASIS FOR ACCEPTANCE OF THE UNION'S PETITION IN THIS CASE, PRINCIPALLY
BECAUSE THE UNION DID NOT DESCRIBE FACTS AND CIRCUMSTANCES SUFFICIENT TO
SUPPORT THE EXCEPTIONS IN ITS PETITION. AS TO (3), THE COUNCIL HELD
THAT, LIKE THE OTHER EXCEPTIONS, THIS EXCEPTION PROVIDES NO BASIS FOR
ACCEPTANCE OF THE UNION'S PETITION. ACCORDINGLY, THE COUNCIL DENIED
REVIEW OF THE UNION'S PETITION BECAUSE IT FAILED TO MEET THE
REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.32 OF THE COUNCIL'S
RULES OF PROCEDURE (5 CFR 2411.32).
DEAR MR. RISELLI:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF AN
ARBITRATOR'S AWARD FILED IN THE ABOVE-ENTITLED CASE.
BASED ON THE FACTS DESCRIBED IN THE ARBITRATOR'S AWARD, IT APPEARS
THAT TWO GS-12 TECHNICIANS AT THE AGENCY'S WHITE PLAINS, NEW YORK,
FACILITY WERE TEMPORARILY RELEASED TO ATTEND THE FAA ACADEMY FOR
TRAINING. TO SERVE WHITE PLAINS DURING THE TWO EMPLOYEES' ABSENCE, THE
AGENCY INITIALLY ASSIGNED FIVE GS-11 TECHNICIANS FROM WILKES BARRE,
PENNSYLVANIA, TO WORK AT WHITE PLAINS FOR APPROXIMATELY 4 WEEKS EACH.
TWO WEEKS AFTER THESE TEMPORARY ASSIGNMENTS WERE MADE, THE AGENCY
ESTABLISHED A GS-12 TEMPORARY RELIEF POSITION AT WHITE PLAINS. NONE OF
THE FIVE WILKES BARRE EMPLOYEES CHOSE TO ACCEPT A TEMPORARY PROMOTION TO
THIS POSITION, HOWEVER, AND THEIR ASSIGNMENTS CONTINUED AS ORIGINALLY
SCHEDULED. SHORTLY BEFORE THESE ASSIGNMENTS WERE TO END, THE AGENCY
ANNOUNCED THAT THE TRAINING OF THE TWO WHITE PLAINS EMPLOYEES HAD BEEN
EXTENDED AND THAT EACH OF THE FIVE WILKES BARRE EMPLOYEES WOULD RETURN
TO WHITE PLAINS FOR AN ADDITIONAL 2 WEEKS.
THE UNION FILED A GRIEVANCE, ALLEGING THAT THE ASSIGNMENTS OF THE
FIVE WILKES BARRE EMPLOYEES VIOLATED ARTICLE XVI OF THE PARTIES'
NEGOTIATED AGREEMENT. /1/ SUBMITTING THE GRIEVANCE TO ARBITRATION, THE
PARTIES STIPULATED THAT THE ISSUE TO BE RESOLVED WAS AS FOLLOWS:
DID THE AGENCY AND ITS REPRESENTATIVES VIOLATE ARTICLE XVI OF THE
COLLECTIVE BARGAINING
AGREEMENT WITH THE DETAIL OF FIVE EMPLOYEES TO WHITE PLAINS FROM
WILKES BARRE BETWEEN APRIL
AND NOVEMBER, 1974? IF SO, WHAT SHOULD THE REMEDY BE?
THE ARBITRATOR, FINDING THAT "THE FIVE EMPLOYEES SERVED AT LEAST TEN
DETAILS, NO ONE OF WHICH WAS MORE THAN THIRTY DAYS IN DURATION,"
CONCLUDED THAT THE AGENCY HAD NOT VIOLATED ARTICLE XVI.
THE UNION REQUESTS THAT THE COUNCIL ACCEPT ITS PETITION FOR REVIEW OF
THE ARBITRATOR'S AWARD ON THE BASIS OF THREE EXCEPTIONS DISCUSSED BELOW.
UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE, REVIEW OF
AN ARBITRATION AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON
THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE
EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES
APPLICABLE LAW, APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS
SIMILAR TO THOSE UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE
SUSTAINED BY COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS."
IN ITS FIRST EXCEPTION, THE UNION CONTENDS, IN EFFECT, THAT THE
ARBITRATOR'S AWARD VIOLATES APPROPRIATE REGULATIONS-- SPECIFICALLY,
FEDERAL PERSONNEL MANUAL CHAPTER 300, SUBCHAPTER 8, "DETAIL OF
EMPLOYEES," AND FEDERAL AVIATION ADMINISTRATION ORDER 3330.9, CHAPTER 5,
"DETAILS." THE COUNCIL WILL GRANT REVIEW OF AN ARBITRATION AWARD IN
CASES WHERE IT APPEARS, BASED UPON THE FACTS AND CIRCUMSTANCES DESCRIBED
IN THE PETITION, THAT THE EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT
THE AWARD VIOLATES APPROPRIATE REGULATIONS. HERE, HOWEVER, THE UNION
SIMPLY QUOTES AT LENGTH FROM THE CITED DIRECTIVES, ADVANCING NO
PERSUASIVE ARGUMENT IN SUPPORT OF ITS EXCEPTION AND DESCRIBING NO FACTS
OR CIRCUMSTANCES SUFFICIENT TO SHOW THAT ANY BASIS EXISTS FOR FINDING
THE AWARD VIOLATIVE OF APPROPRIATE REGULATIONS. THE COUNCIL HAS
CONSISTENTLY DECLINED TO REVIEW ARBITRATION AWARDS WHERE THE PETITION
FOR REVIEW FAILS TO SET FORTH ANY SUPPORT FOR THE EXCEPTIONS PRESENTED.
SEE, E.G., NAVAL AIR REWORK FACILITY, PENSACOLA, FLORIDA AND AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LODGE NO. 1960 (GOODWIN,
ARBITRATOR), FLRC NO. 74A-12 (SEPTEMBER 9, 1974), REPORT NO. 56;
PICATINNY ARSENAL, DEPARTMENT OF THE ARMY, AND LOCAL 225, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES (FALCONE, ARBITRATOR), FLRC NO.
72A-44 (MAY 2, 1973), REPORT NO. 37. THEREFORE, THIS EXCEPTION PROVIDES
NO BASIS FOR ACCEPTANCE OF THE UNION'S PETITION UNDER SECTION 2411.32 OF
THE COUNCIL'S RULES. /2/
IN ITS SECOND EXCEPTION, THE UNION CONTENDS THAT THE AWARD VIOLATES
SECTION 12 OF THE ORDER. WHILE THIS EXCEPTION ALSO STATES A GROUND UPON
WHICH THE COUNCIL WILL GRANT REVIEW OF AN ARBITRATOR'S AWARD, THE UNION
PROVIDES NO EXPLANATION AS TO WHY IT CONSIDERS THE AWARD VIOLATIVE OF
SECTION 12, NOR DOES IT DESCRIBE ANY FACTS OR CIRCUMSTANCES WHICH MIGHT
TEND TO SUPPORT ITS EXCEPTION. AGAIN, A PETITION FOR REVIEW OF AN
ARBITRATOR'S AWARD WILL NOT BE ACCEPTED WHERE THERE APPEARS IN THE
PETITION NO SUPPORT FOR THE STATED EXCEPTION TO THE AWARD. SEE, E.G.,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2532 AND SMALL
BUSINESS ADMINISTRATION (DORSEY, ARBITRATOR), FLRC NO. 73A-4 (APRIL 18,
1973), REPORT NO. 36. THEREFORE, THIS EXCEPTION LIKEWISE PROVIDES NO
BASIS FOR ACCEPTANCE OF THE UNION'S PETITION UNDER SECTION 2411.32 OF
THE COUNCIL'S RULES.
IN ITS THIRD EXCEPTION, THE UNION CONTENDS THAT THE AWARD VIOLATES
"THE PERTINENT PROVISIONS OF THE CONTROLLING COLLECTIVE BARGAINING
AGREEMENT IN QUESTION." THUS, IT APPEARS THAT THE UNION IS, IN
SUBSTANCE, CONTENDING THAT THE ARBITRATOR REACHED AN INCORRECT RESULT IN
HIS INTERPRETATION OF ARTICLE XVI OF THE AGREEMENT. THE COUNCIL HAS
CONSISTENTLY HELD, AS HAVE THE COURTS WITH RESPECT TO ARBITRATION IN THE
PRIVATE SECTOR, THAT THE INTERPRETATION OF CONTRACT PROVISIONS IS A
MATTER TO BE LEFT TO THE ARBITRATOR'S JUDGMENT. SOCIAL SECURITY
ADMINISTRATION, BUREAU OF RETIREMENT AND SURVIVORS INSURANCE, CHICAGO,
ILLINOIS AND AFGE, NATIONAL COUNCIL OF SOCIAL SECURITY PAYMENT CENTER
LOCALS, LOCAL 1395 (DAVIS, ARBITRATOR), FLRC NO. 75A-17 (JUNE 26, 1975),
REPORT NO. 76. THEREFORE, THIS EXCEPTION, LIKE THE OTHER EXCEPTIONS,
PROVIDES NO BASIS FOR ACCEPTANCE OF THE UNION'S PETITION UNDER SECTION
2411.32 OF THE COUNCIL'S RULES.
ACCORDINGLY, THE UNION'S PETITION IS DENIED BECAUSE IT FAILS TO MEET
THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.32 OF THE
COUNCIL'S RULES OF PROCEDURE.
BY THE COUNCIL.
CC: J. EGAN
FAA
/1/ ACCORDING TO THE UNION'S PETITION, ARTICLE XVI PROVIDES AS
FOLLOWS:
DETAILS AND TEMPORARY PROMOTIONS
SECTION 1
WHEN IT IS KNOWN IN ADVANCE THAT A DETAIL TO A HIGHER GRADE POSITION
WILL EXTEND 60 DAYS,
THE DETAILED EMPLOYEE WILL BE TEMPORARILY PROMOTED, SUBJECT TO AGENCY
PROMOTION
RESTRICTIONS. COMPETITIVE PROMOTION PROCEDURES MUST BE USED WHEN A
TEMPORARY PROMOTION WILL
EXCEED 120 DAYS.
SECTION 2
DETAILS FOR MORE THAN 30 DAYS SHALL BE RECORDED ON STANDARD FORM 52.
THE EMPLOYER WILL
NOTIFY EMPLOYEES IN WRITING, OF TEMPORARY DUTY ASSIGNMENTS WHEN SUCH
ASSIGNMENTS ARE NORMALLY
PERFORMED AT A DIFFERENT OR HIGHER GRADE AND THIS TEMPORARY DUTY IS
MORE THAN EIGHT HOURS
DURATION. INDIVIDUAL EMPLOYEES MAY MAINTAIN RECORDS OF TEMPORARY
ASSIGNMENTS OF EIGHT HOURS
OR LESS AND HAVE SUCH RECORDS INITIALED BY THEIR SUPERVISOR WHEN
APPROPRIATE.
SECTION 3
DETAILS IN EXCESS OF 120 DAYS MUST BE APPROVED BY THE CIVIL SERVICE
COMMISSION.
/2/ IN SO HOLDING, WE DO NOT PASS UPON THE QUESTION WHETHER FAA ORDER
3330.9 CONSTITUTES AN "APPROPRIATE REGULATION" WITHIN THE MEANING OF
SECTION 2411.32 OF THE COUNCIL'S RULES. CF. AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2649 AND OFFICE OF ECONOMIC
OPPORTUNITY (SISK, ARBITRATOR, FLRC NO. 74A-17 (DECEMBER 5, 1974),
REPORT NO. 61.
3 FLRC 542; FLRC NO. 75A-48; AUGUST 15, 1975.
MR. PHILIP M. WEIGHTMAN
CHIEF, LABOR-MANAGEMENT RELATIONS
COMMUNITY SERVICES ADMINISTRATION
WASHINGTON, D.C. 20506
(SYNOPSIS) FLRC NO. 75A-48
COMMUNITY SERVICES ADMINISTRATION AND NATIONAL COUNCIL OF CSA LOCALS
(AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES) (EDGETT, ARBITRATOR). THE
AGENCY FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD WITH THE COUNCIL,
ALLEGING, AMONG OTHER THINGS, THAT (1) THE ARBITRATOR, IN DETERMINING
THAT THE AGENCY VIOLATED THE PARTIES' AGREEMENT WHEN IT FAILED TO
CONSULT WITH THE UNION PRIOR TO APPOINTING AN INDIVIDUAL AS REGIONAL
DIRECTOR, SUBSTITUTED HIS JUDGMENT FOR THAT OF RESPONSIBLE AGENCY
OFFICIALS AND THEREFORE ACTED ARBITRARILY AND CAPRICIOUSLY; AND (2) THE
ARBITRATOR VIOLATED SECTION 12(B)(2) OF THE ORDER IN DETERMINING THAT
THE AGENCY'S FAILURE TO POST THE VACANCY WAS ALSO VIOLATIVE OF THE
AGREEMENT. IN THIS LATTER REGARD, THE AGENCY REQUESTED THAT THE COUNCIL
REVIEW THE PARTICULAR AGREEMENT PROVISION INVOLVED AND MAKE A POLICY
DETERMINATION AS TO ITS SCOPE, EFFECT AND ENFORCEABILITY VIS-A-VIS THE
AGENCY'S RESERVED RIGHTS UNDER SECTION 12(B)(2) OF THE ORDER.
COUNCIL ACTION (AUGUST 15, 1975). AS TO (1), THE COUNCIL HELD THAT
THIS EXCEPTION, IN THE CIRCUMSTANCES OF THIS CASE, DOES NOT ASSERT A
GROUND UPON WHICH THE COUNCIL WILL GRANT REVIEW OF AN ARBITRATION AWARD.
AS TO (2), THE COUNCIL HELD THAT THE AGENCY FAILED TO PROVIDE FACTS AND
CIRCUMSTANCES SUFFICIENT TO SUPPORT THE EXCEPTION; AND, WITH REGARD TO
THE AGENCY'S RELATED REQUEST, WHICH APPEARS TO BE A REQUEST FOR AN
ADVISORY OPINION AS TO THE VALIDITY OF THE PARTICULAR AGREEMENT
PROVISION INVOLVED, THE COUNCIL RULES THAT THIS REQUEST DOES NOT MEET
THE REQUIREMENTS FOR REVIEW UNDER SECTION 2411.32 OF THE COUNCIL'S RULES
AND, FURTHER, THAT THE COUNCIL DOES NOT ISSUE ADVISORY OPINIONS.
ACCORDINGLY, THE COUNCIL DENIED REVIEW OF THE AGENCY'S PETITION BECAUSE
IT FAILED TO MEET THE REQUIREMENTS FOR REVIEW AS SET FORTH IN SECTION
2411.32 OF THE COUNCIL'S RULES OF PROCEDURE (5 CFR 2411.32).
DEAR MR. WEIGHTMAN:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ARBITRATOR'S AWARD, AND THE UNION'S OPPOSITION THERETO, IN THE
ABOVE-ENTITLED CASE.
AS STATED IN THE ARBITRATOR'S DECISION, THE THEN REGIONAL DIRECTOR OF
THE AGENCY'S DENVER REGION REQUESTED REASSIGNMENT. ON THE FOLLOWING
DAY, ANOTHER INDIVIDUAL WAS GIVEN A 30-DAY EMERGENCY APPOINTMENT AS
REGIONAL DIRECTOR. A REQUEST BY THE AGENCY TO THE CIVIL SERVICE
COMMISSION (CSC) FOR A 30-DAY EXTENSION OF THE APPOINTMENT WAS
SUBSEQUENTLY REJECTED BY THE CSC WHICH FOUND THAT THE APPOINTMENT WAS
NOT PROPERLY MADE UNDER ITS REGULATIONS. AS A RESULT, THE APPOINTMENT
WAS RESCINDED. THE UNION FILED A GRIEVANCE ALLEGING, IN RELEVANT PART,
THAT THE AGENCY'S ACTION VIOLATED SECTIONS 3 /1/ AND 11 /2/ OF THE
AMENDATORY AGREEMENT BETWEEN THE AGENCY AND THE UNION, DATED SEPTEMBER
11, 1973. THE GRIEVANCE WAS ULTIMATELY SUBMITTED TO ARBITRATION.
AS TO THE ALLEGED VIOLATION OF SECTION 3, THE ARBITRATOR IN HIS
DECISION CONCLUDED THAT THE AGENCY "HAD THE BURDEN OF GOING FORWARD WITH
EVIDENCE THAT CONSULTATION WAS NOT POSSIBLE AND IT FAILED TO DO SO." HE
DETERMINED THAT THE AGENCY VIOLATED SECTION 3 OF THE AMENDATORY
AGREEMENT WHEN IT FAILED TO CONSULT WITH THE UNION PRIOR TO APPOINTING
THE INDIVIDUAL AS REGIONAL DIRECTOR. HE ALSO DETERMINED THAT THE AGENCY
HAD FAILED TO MAKE THAT APPOINTMENT IN ACCORDANCE WITH CSC REGULATIONS
"INASMUCH AS THE CSC FOUND THAT . . . (THE) APPOINTMENT WAS NOT PROPER
UNDER ITS REGULATIONS." HOWEVER, THE ARBITRATOR DETERMINED THAT THE
CONTRACTUAL FAILURE WAS RENDERED MOOT BY THE CSC'S ACTION REJECTING THE
APPOINTMENT AND, THEREFORE, HE AWARDED NO REMEDY. THE ARBITRATOR
FURTHER DETERMINED THAT THE AGENCY VIOLATED SECTION 11 OF THE AMENDATORY
AGREEMENT WHEN IT FAILED TO POST THE VACANCY, BUT AWARDED NO REMEDY FOR
THE VIOLATION. /3/ THE ARBITRATOR DETERMINED THAT THE UNION, ON
BALANCE, WAS THE WINNING PARTY, AND THEREFORE ASSESSED THE COST OF THE
ARBITRATION TO THE AGENCY.
THE AGENCY REQUESTS THAT THE COUNCIL ACCEPT ITS PETITION FOR REVIEW
OF THE ARBITRATOR'S AWARD ON THE BASIS OF TWO EXCEPTIONS DISCUSSED
BELOW. /4/
UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE, REVIEW OF
AN ARBITRATION AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON
THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE
EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES
APPLICABLE LAW, APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS
SIMILAR TO THOSE UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE
SUSTAINED BY COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS."
IN ITS FIRST EXCEPTION, THE AGENCY CONTENDS THAT THE ARBITRATOR, IN
DETERMINING THAT THE AGENCY FAILED TO CONSULT WITH THE UNION IN
VIOLATION OF SECTION 3 OF THE AMENDATORY AGREEMENT, SUBSTITUTED HIS
JUDGMENT FOR THAT OF RESPONSIBLE AGENCY OFFICIALS AND THEREFORE ACTED
ARBITRARILY AND CAPRICIOUSLY. WHEN THE SUBSTANCE OF THIS EXCEPTION IS
CONSIDERED, THE COUNCIL IS OF THE OPINION THAT THE AGENCY DISAGREES WITH
THE ARBITRATOR'S INTERPRETATION OF THE AGREEMENT. HOWEVER, THE COUNCIL
HAS CONSISTENTLY APPLIED THE PRINCIPLE, /5/ THAT WHEN, AS HERE, AN
ARBITRATOR IS EMPOWERED TO INTERPRET THE TERMS OF AN AGREEMENT, THE
COUNCIL WILL NOT SET ASIDE THE ARBITRATOR'S AWARD MERELY BECAUSE THE
COUNCIL'S OWN INTERPRETATION OF THE AGREEMENT MAY DIFFER. THUS, THIS
EXCEPTION, UNDER THE CIRCUMSTANCES OF THIS CASE, DOES NOT ASSERT A
GROUND UPON WHICH THE COUNCIL WILL GRANT REVIEW OF AN ARBITRATION AWARD
UNDER SECTION 2411.32 OF ITS RULES.
AS ITS SECOND EXCEPTION, THE AGENCY CONTENDS THAT THE ARBITRATOR, IN
DETERMINING THAT THE AGENCY'S FAILURE TO POST THE VACANCY WAS A
VIOLATION OF SECTION 11, VIOLATED SECTION 12(B)(2) OF THE ORDER. IN
SUPPORT OF THIS EXCEPTION THE AGENCY ASSERTS IN EFFECT (1) THAT SECTION
11 DOES NOT APPLY TO THE POSITION IN QUESTION, AND (2) THAT THE FINDING
OF THE VIOLATION OF SECTION 11, WHICH SECTION REQUIRES "THAT ALL
VACANCIES WILL BE POSTED," VIOLATES SECTION 12(B)(2). AS TO THE FIRST
ASSERTION, THE AGENCY AGAIN APPEARS TO BE DISAGREEING WITH THE
ARBITRATOR'S INTERPRETATION OF THE AGREEMENT. BUT, AS INDICATED, THIS
ASSERTION DOES NOT STATE A GROUND UPON WHICH THE COUNCIL WILL GRANT
REVIEW OF AN ARBITRATION AWARD UNDER SECTION 2411.32 OF ITS RULES. AS
TO THE SECOND ASSERTION, THE COUNCIL WILL GRANT REVIEW OF AN AWARD WHERE
IT APPEARS, BASED ON THE FACTS AND CIRCUMSTANCES PRESENTED, THAT THE
EXCEPTION PRESENTS GROUNDS THAT THE AWARD VIOLATES SECTION 12(B)(2) OF
THE ORDER. HOWEVER, THE AGENCY HAS FAILED TO PROVIDE FACTS AND
CIRCUMSTANCES SUFFICIENT TO SUPPORT THIS EXCEPTION. TO THE CONTRARY, AS
STATED IN NOTE 3, SUPRA, THE ARBITRATOR DENIED, AS BEYOND HIS AUTHORITY,
THE UNION'S REQUEST THAT HE ORDER THE AGENCY TO POST THE NOTICE AS A
REMEDY FOR THE VIOLATION OF SECTION 11. IN SO CONCLUDING, THE
ARBITRATOR'S DECISION WAS CONSISTENT WITH THE COUNCIL'S DECISION IN
NATIONAL COUNCIL OF OEO LOCALS, AFGE, AFL-CIO, AND OFFICE OF ECONOMIC
OPPORTUNITY (HARKLESS, ARBITRATOR), FLRC NO. 73A-67 (DECEMBER 6, 1974),
REPORT NO. 61. MOREOVER, THE AGENCY APPEARS TO BE SEEKING AN ADVISORY
OPINION ON THE VALIDITY OF SECTION 11 UNDER THE ORDER. SPECIFICALLY,
THE AGENCY REQUESTS THE COUNCIL TO REVIEW SECTION 11 OF THE AMENDATORY
AGREEMENT AND TO MAKE A POLICY DETERMINATION ON THE SCOPE, EFFECT, AND
ENFORCEABILITY OF SECTION 11 ON THE AGENCY'S RESERVED RIGHTS UNDER
SECTION 12(B)(2) OF THE ORDER. THIS REQUEST DOES NOT MEET THE
REQUIREMENTS FOR REVIEW UNDER SECTION 2411.32 OF THE COUNCIL'S RULES;
FURTHER, THE COUNCIL DOES NOT ISSUE ADVISORY OPINIONS (SEE SECTION
2411.52 OF THE COUNCIL'S RULES).
ACCORDINGLY, THE COUNCIL HAS DENIED REVIEW OF THE AGENCY'S PETITION
BECAUSE IT FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS SET FORTH IN
SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE.
BY THE COUNCIL.
CC: R. FRANK
AFGE LOCAL 2677
/1/ SECTION 3 (KEY OFFICIALS) PROVIDES:
BOTH PARTIES AGREE THAT ALL APPOINTMENTS MADE TO TOPE LEVEL
MANAGEMENT POSITIONS (OFFICE
HEADS, DIRECTORS OF REGIONAL LEGAL SERVICES, PERSONNEL DIRECTORS,
REGIONAL DIRECTORS AND OEO
OFFICERS) NOT SUBJECT TO HIGHER AUTHORITY, WILL BE PROFESSIONALLY
QUALIFIED, APPOINTED IN
ACCORDANCE WITH CIVIL SERVICE REGULATIONS AND, WHEN POSSIBLE, AFTER
CONSULTATION WITH THE
UNION.
/2/ SECTION 11 (FILLING VACANCIES) PROVIDES:
THE PARTIES AGREE THAT ALL VACANCIES WILL BE POSTED, AND THAT ALL
VACANCIES IN THE
COMPETITIVE SERVICE ABOVE THE ENTRY LEVEL WILL BE FILLED WITH
IN-HOUSE CANDIDATES, WHERE
POSSIBLE WITH THE EXCEPTION OF POLICY AND SUPERVISORY POSITIONS OR
WHEN THERE IS AN EMERGENCY
WHICH PRECLUDES USE OF THE MERIT PROMOTION SYSTEM. WHENEVER
MANAGEMENT DETERMINES SUCH AN
EMERGENCY EXISTS, IT WILL NOTIFY THE UNION OF THE REASONS IN ADVANCE.
DURING FY'74 EMPLOYEES
TRANSFERRED FROM OEO WILL BE CONSIDERED IN-HOUSE CANDIDATES FOR THIS
PURPOSE. ARTICLE 12
SECTION 4A OF THE CONTRACT IS HEREBY AMENDED.
/3/ THE ARBITRATOR DENIED THE UNION'S REQUESTED REMEDY FOR THE
VIOLATION OF SECTION 11, AN ORDER TO POST THE POSITION, AS BEYOND HIS
AUTHORITY. NEITHER PARTY TAKES EXCEPTION TO THE ARBITRATOR'S DENIAL OF
THE UNION'S REQUESTED REMEDY.
/4/ THE AGENCY ALSO REQUESTS THAT THE COUNCIL ASSESS COST OF THE
ARBITRATION TO THE UNION AS PER ARTICLE 17, SECTION 4, OF THE AGREEMENT.
/5/ SEE, E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
LOCAL 2649 AND OFFICE OF ECONOMIC OPPORTUNITY (SISK, ARBITRATOR), FLRC
NO. 74A-17 (DECEMBER 5, 1974), REPORT NO. 61.
3 FLRC 538; FLRC NO. 75A-29; AUGUST 15, 1975.
MR. BRUCE CARROLL
COMMUNITY SERVICES ADMINISTRATION
300 SOUTH WACKER DRIVE, 26TH FLOOR
CHICAGO, ILLINOIS 60606
(SYNOPSIS) FLRC NO. 75A-29
OFFICE OF ECONOMIC OPPORTUNITY, REGION V, CHICAGO, ILLINOIS, A/SLMR
NO. 477. THE ASSISTANT SECRETARY FOUND THAT THE ACTIVITY VIOLATED
SECTION 19(A)(1) OF THE ORDER BY COERCIVELY INTERROGATING AN EMPLOYEE
CONCERNING THE DISTRIBUTION OF A UNION LEAFLET. THE AGENCY APPEALED TO
THE COUNCIL, CONTENDING THAT THE ASSISTANT SECRETARY'S DECISION IS
ARBITRARY AND CAPRICIOUS AND PRESENTS A MAJOR POLICY ISSUE.
COUNCIL ACTION (AUGUST 15, 1975). THE COUNCIL HELD THAT THE AGENCY'S
PETITION FOR REVIEW DOES NOT MEET THE REQUIREMENTS GOVERNING REVIEW;
THAT IS, THE DECISION OF THE ASSISTANT SECRETARY DOES NOT APPEAR
ARBITRARY AND CAPRICIOUS NOR DOES IT PRESENT A MAJOR POLICY ISSUE.
ACCORDINGLY, SINCE THE AGENCY'S APPEAL FAILED TO MEET THE REQUIREMENTS
FOR REVIEW PROVIDED BY SECTION 2411.12 OF THE COUNCIL'S RULES OF
PROCEDURE (5 CFR 2411.12), THE COUNCIL DENIED THE PETITION FOR REVIEW.
DEAR MR. CARROLL:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION, AND THE UNION'S OPPOSITION THERETO, IN
THE ABOVE-ENTITLED CASE.
THE COMPLAINT IN THIS CASE ALLEGED, AMONG OTHER THINGS, THAT
MANAGEMENT AT THE OFFICE OF ECONOMIC OPPORTUNITY, /1/ REGION V (THE
ACTIVITY), COMMITTED AN UNFAIR LABOR PRACTICE WHEN IT INTERROGATED AN
EMPLOYEE REGARDING HER INVOLVEMENT IN THE PREPARATION AND DISTRIBUTION
OF AN UNSIGNED UNION LEAFLET WHICH CRITICIZED MANAGEMENT FOR ADOPTING A
RULE PROHIBITING AFGE LOCAL 2816 (THE UNION) FROM POSTING OR
DISTRIBUTING LITERATURE.
ACCORDING TO THE ASSISTANT SECRETARY'S DECISION, OEO INSTRUCTION
711-1, DATED APRIL 1, 1970, SETS FORTH THE CONDITIONS ESTABLISHED FOR
THE USE OF BULLETIN BOARDS AND FOR THE DISTRIBUTION OF MATERIALS BY
UNIONS. THE INSTRUCTION RESTRICTS THE MATERIAL POSTED OR CIRCULATED TO
REPORTS OF UNION MEETINGS AND OTHER SPECIFIED UNION ACTIVITIES, AND IT
DECLARES THAT SUCH MATERIAL MAY NOT CONTAIN ATTACKS UPON ANY PERSON,
GROUP, OR ORGANIZATION. COMMENCING IN LATE 1970, THE POSTING OF THE
MINUTES OF THE UNION MEETINGS BECAME A SOURCE OF CONSIDERABLE IRRITATION
TO MANAGEMENT BECAUSE THE MINUTES CONTAINED ATTACKS ON CERTAIN
MANAGEMENT REPRESENTATIVES.
ON FEBRUARY 1, 1972, BY MEMORANDUM, THE ACTIVITY PROHIBITED AFGE
LOCAL 2816 FROM DISTRIBUTING, PLACING OR POSTING LITERATURE BECAUSE OF
THE PREVIOUS PERSONAL ATTACKS UPON MANAGEMENT WHICH CONDUCT, ALLEGEDLY,
WAS CONTRARY TO OEO INSTRUCTION 711-1. ON FEBRUARY 23, 1972, AN
UNSIGNED LEAFLET ON UNION LETTERHEAD WAS CIRCULATED IN THE REGIONAL
OFFICE ATTACKING THE ACTIVITY'S FEBRUARY 1 MEMORANDUM AND ACCUSING
MANAGEMENT OF HOSTILITY TOWARD UNIONS AND MINORITIES AS WELL AS
DEPRIVING EMPLOYEES OF FREE SPEECH. ON FEBRUARY 24, 1972, A MANAGEMENT
REPRESENTATIVE QUESTIONED THE EMPLOYEE IN THE PRESENCE OF A UNION
REPRESENTATIVE AS TO HER POSSIBLE INVOLVEMENT IN THE PREPARATION OF THE
FEBRUARY 23 LEAFLET. THE EMPLOYEE ADVISED THAT MANAGEMENT SHOULD
INQUIRE OF THE UNION AS TO THE PREPARATION OF THE LEAFLET, NOT OF
HERSELF, BECAUSE IT BORE THE UNION LETTERHEAD. THE MANAGEMENT
REPRESENTATIVE, HOWEVER, CONTINUED TO INTERROGATE THE EMPLOYEE AS TO HER
POSSIBLE INVOLVEMENT IN THE DISTRIBUTION OR DEVELOPMENT OF THE LEAFLET
AND THREATENED HER WITH DISCIPLINE IF SHE REFUSED TO ANSWER. UNDER
PROTEST, SHE ANSWERED NEGATIVELY TO ALL OF HIS QUESTIONS. IN MARCH
1972, THE RIGHT OF THE UNION TO POST MATERIALS WAS REINSTATED.
WITH RESPECT TO THE ISSUES RAISED IN YOUR PETITION, THE ASSISTANT
SECRETARY FOUND THAT THE ACTIVITY VIOLATED SECTION 19(A)(1) OF THE ORDER
BY COERCIVELY INTERROGATING AN EMPLOYEE CONCERNING THE DISTRIBUTION OF A
UNION LEAFLET. ADOPTING THE FINDINGS OF THE ADMINISTRATIVE LAW JUDGE,
THE ASSISTANT SECRETARY CONCLUDED THAT SUCH INTERROGATION "IN THIS
INSTANCE CONSTITUTED AN INQUIRY BY MANAGEMENT INTO ROCKWELL'S UNION
ACTIVITIES WHICH . . . INTERFERED WITH, RESTRAINED, OR COERCED HER IN
THE EXERCISE OF HER RIGHT TO JOIN AND ASSIST A LABOR ORGANIZATION."
IN YOUR PETITION FOR REVIEW, YOU CONTEND, IN ESSENCE, THAT THE
ASSISTANT SECRETARY'S DECISION IN THIS CASE IS TANTAMOUNT TO A HOLDING
THAT INTERROGATION OF AN EMPLOYEE ABOUT ANYTHING WHICH INVOLVES UNION
ACTIVITY IS PER SE VIOLATIVE OF THE ORDER, AND, AS SUCH, IS ARBITRARY
AND CAPRICIOUS. YOU ALSO CONTEND THAT THE DECISION PRESENTS A MAJOR
POLICY ISSUE AS TO WHETHER AN AGENCY MAY INQUIRE INTO MISCONDUCT EVEN IF
SUCH INQUIRY TOUCHES UPON UNION ACTIVITY.
IN THE COUNCIL'S VIEW, YOUR PETITION FOR REVIEW OF THE ASSISTANT
SECRETARY'S DECISION DOES NOT MEET THE REQUIREMENTS OF THE COUNCIL'S
RULES GOVERNING REVIEW; THAT IS, THE DECISION OF THE ASSISTANT
SECRETARY DOES NOT APPEAR ARBITRARY AND CAPRICIOUS NOR DOES IT PRESENT A
MAJOR POLICY ISSUE. WITH RESPECT TO YOUR CONTENTION THAT THE ASSISTANT
SECRETARY'S DECISION WAS ARBITRARY AND CAPRICIOUS, IT DOES NOT APPEAR
THAT HIS FINDINGS AND DECISION WERE WITHOUT REASONABLE JUSTIFICATION IN
THE PARTICULAR CIRCUMSTANCES OF THIS CASE. IN SO RULING, HOWEVER, WE DO
NOT CONSTRUE THE ASSISTANT SECRETARY'S DECISION AS ESTABLISHING A RULE
THAT ANY INQUIRY BY MANAGEMENT INTO MATTERS WHICH MAY INVOLVE
UNION-RELATED ACTIVITY IS PER SE VIOLATIVE OF THE ORDER. RATHER, WE
SIMPLY HOLD THAT THE ASSISTANT SECRETARY'S FINDING OF A 19(A)(1)
VIOLATION IN THIS CASE WAS NOT UNREASONABLE UNDER THE FACTS AND
CIRCUMSTANCES PRESENTED HEREIN. MOREOVER, WITH RESPECT TO THE ALLEGED
MAJOR POLICY ISSUE, THE COUNCIL IS OF THE OPINION THAT IN THE
CIRCUMSTANCES PRESENTED, NOTING PARTICULARLY, AS STATED ABOVE, THAT THE
ASSISTANT SECRETARY'S DECISION DOES NOT ESTABLISH A PER SE RULE THAT ANY
INQUIRY TOUCHING UPON UNION ACTIVITY IS VIOLATIVE OF THE ORDER, AND THAT
THE ASSISTANT SECRETARY FOUND THAT THE ACTIVITY COERCIVELY INTERROGATED
THE EMPLOYEE IN VIOLATION OF THE ORDER, THE SUBJECT DECISION DOES NOT
RAISE A MAJOR POLICY ISSUE WARRANTING COUNCIL REVIEW.
ACCORDINGLY, SINCE YOUR PETITION FAILS TO MEET THE REQUIREMENTS FOR
REVIEW PROVIDED BY SECTION 2411.12 OF THE COUNCIL'S RULES OF PROCEDURE,
REVIEW OF THE PETITION IS HEREBY DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
G. GALLAND, JR.
/1/ THE NAME OF THE AGENCY WAS OFFICIALLY CHANGED DURING THE PENDENCY
OF THIS PROCEEDING TO COMMUNITY SERVICES ADMINISTRATION.
3 FLRC 533; FLRC NO. 74A-102; AUGUST 15, 1975.
MR. PHILLIP R. KETE, PRESIDENT
NATIONAL COUNCIL OF CSA LOCALS
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
1200 19TH STREET, NW.
WASHINGTON, D.C. 20506
(SYNOPSIS) FLRC NO. 74A-102
OFFICE OF ECONOMIC OPPORTUNITY, KANSAS CITY REGIONAL OFFICE, REGION
VII AND NATIONAL COUNCIL OF OEO LOCALS, LOCAL 2961, AFL-CIO (YAROWSKY,
ARBITRATOR). THE ARBITRATOR DENIED THE UNION'S GRIEVANCE AND THE UNION
FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD WITH THE COUNCIL, ASSERTING
THAT THE ARBITRATOR'S REFUSAL TO HEAR EVIDENCE ON THE QUESTION OF
REFORMATION OF THE PARTIES' AGREEMENT WAS BASED ON A NONFACT (THE BELIEF
THAT THE UNION HAD NOT RAISED THE ISSUE OF REFORMATION PRIOR TO THE
ARBITRATION HEARING), AND WAS A REFUSAL TO HEAR PERTINENT AND MATERIAL
EVIDENCE.
COUNCIL ACTION (AUGUST 15, 1975). THE COUNCIL HELD THAT THE UNION'S
PETITION DOES NOT PRESENT THE FACTS AND CIRCUMSTANCES NECESSARY TO
SUPPORT ITS ASSERTIONS. ACCORDINGLY, WITHOUT PASSING ON THE
RESPONSIBILITIES OF ARBITRATORS IN THE FEDERAL SECTOR TO CONSIDER
QUESTIONS OF REFORMATION WHERE SUCH QUESTIONS ARE PROPERLY AND TIMELY
RAISED, THE COUNCIL DENIED REVIEW OF THE UNION'S PETITION BECAUSE IT
FAILED TO MEET THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.32
OF THE COUNCIL'S RULES OF PROCEDURE (5 CFR 2411.32).
DEAR MR. KETE:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ARBITRATOR'S AWARD FILED IN THE ABOVE-ENTITLED CASE.
THE AWARD INDICATES THAT THE AGENCY MADE AN AGENCYWIDE ANNOUNCEMENT
OF A VACANCY IN THE POSITION OF HUMAN RIGHTS OFFICER, GS-14, AT ITS
KANSAS CITY REGIONAL OFFICE. FOUR INDIVIDUALS WERE CERTIFIED AS HIGHLY
QUALIFIED FOR THE POSITION, INCLUDING THREE CANDIDATES FROM WITHIN THE
AGENCY AND ONE OUTSIDE CANDIDATE-- A FORMER AGENCY EMPLOYEE. THE FORMER
EMPLOYEE WAS SELECTED FOR THE POSITION AND THE UNION FILED A GRIEVANCE
ALLEGING THAT THE AGENCY'S SELECTION OF AN OUTSIDE CANDIDATE VIOLATED
THE COLLECTIVE BARGAINING AGREEMENT, AS AMENDED, BETWEEN THE PARTIES.
THE GRIEVANCE WAS SUBMITTED TO ARBITRATION UNDER THE AGREEMENT.
ACCORDING TO THE AWARD, THE AGENCY CONTENDED THAT THE POSITION OF
HUMAN RIGHTS OFFICER IS A TOP LEVEL MANAGEMENT SLOT EXCLUDED FROM THE
BARGAINING UNIT BY SECTION 3 OF THE AMENDMENT TO THE AGREEMENT, /1/ OR
THAT THE POSITION FALLS WITHIN THE EXCEPTION FOR POLICY AND SUPERVISORY
POSITIONS INCORPORATED IN SECTION 11 OF THE AMENDMENT, /2/ AND THAT
THEREFORE IT DID NOT VIOLATE THE AGREEMENT BY SELECTING THE OUTSIDE
CANDIDATE. THE UNION, ON THE OTHER HAND, CONTENDED THAT THE POSITION IS
NOT EXCLUDED FROM THE UNIT AND THAT A VERSION OF SECTION 11 OF THE
AMENDMENT DIFFERENT FROM THAT BEING RELIED UPON BY THE AGENCY WAS
APPLICABLE TO THE SITUATION.
REGARDING THE DIFFERENT VERSIONS OF SECTION 11 PUT FORTH BY THE
PARTIES, THE ARBITRATOR POINTED OUT THAT THE AGENCY WAS RELYING ON
SECTION 11 AS IT APPEARED IN THE FINAL AMENDMENT TO THE AGREEMENT
EXECUTED BY THE PARTIES (QUOTED IN FOOTNOTE 2), WHILE THE UNION WAS
RELYING UPON A VERSION WHICH THE UNION MEMBERS HAD BEEN REQUESTED TO
RATIFY AND WHICH OMITTED THE WORDS "WHERE POSSIBLE" AND HAD THE ADDED
PHRASE "AT THE DIVISION LEVEL - OR EQUIVALENT" FOLLOWING THE WORDS "WITH
THE EXCEPTION OF POLICY AND SUPERVISORY POSITIONS." ACCORDING TO THE
AWARD, THE UNION ASKED THE ARBITRATOR FOR REFORMATION OF SECTION 11 OF
THE AMENDMENT TO CONFORM ITS LANGUAGE WITH THE "ACTUAL" AGREEMENT
REACHED BETWEEN THE PARTIES. HOWEVER, THE ARBITRATOR CONCLUDED THAT HE
COULD NOT REFORM SECTION 11. FURTHER, HE DENIED THE UNION'S GRIEVANCE
ON THE BASIS THAT THE HIRING OF THE CANDIDATE FROM OUTSIDE THE AGENCY
WAS NOT VIOLATIVE OF THE AGREEMENT AND THE AMENDMENT THERETO BECAUSE THE
CANDIDATE WAS HIRED FOR A MANAGEMENT AND POLICYMAKING POSITION WITHIN
THE MEANING OF THE AGREEMENT, AS AMENDED, AND WAS THUS EXCLUDED FROM THE
BARGAINING UNIT.
THEREAFTER, THE UNION FILED A MOTION WITH THE ARBITRATOR FOR AN
ADDITIONAL HEARING AND RECONSIDERATION OF HIS AWARD, REQUESTING THAT HE
HOLD A HEARING SOLELY ON THE QUESTION OF WHAT THE PARTIES AGREED TO IN
THEIR 1973 AMENDMENT WITH RESPECT TO THE RESTRICTION ON HIRING FROM
OUTSIDE, AND THAT HE THEN RECONSIDER HIS AWARD IN LIGHT OF THE FACTS
THERE DEVELOPED. THE ARBITRATOR, IN A POST-AWARD RULING, CONCLUDED THAT
HIS AUTHORITY WAS CONFINED TO THE AMENDMENTS PRESENTED TO HIM FOR
CONSTRUCTION, AND FOUND THAT THE REMEDY OF REFORMATION WAS NOT PROPERLY
BEFORE HIM IN THE "PRESENT FRAMING OF THE ISSUES" AND THEREFORE DENIED
THE UNION'S MOTION FOR ADDITIONAL HEARING AND RECONSIDERATION OF THE
AWARD.
THE UNION TAKES EXCEPTION TO THE ARBITRATOR'S AWARD ON THE GROUNDS
DISCUSSED BELOW AND REQUESTS THE COUNCIL TO REMAND THE CASE TO AN
ARBITRATOR TO BE SELECTED BY THE PARTIES FOR A HEARING ON THE QUESTION
OF REFORMATION OF THE CONTRACT AND MODIFICATION OF THE ORIGINAL AWARD IN
LIGHT OF THE FACTS THERE ADDUCED.
UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE, REVIEW OF
AN ARBITRATION AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON
THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE
EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES
APPLICABLE LAW, APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS
SIMILAR TO THOSE UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE
SUSTAINED BY COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS."
IN ITS FIRST EXCEPTION TO THE AWARD, THE UNION CONTENDS THAT THE
ARBITRATOR'S REFUSAL TO HEAR EVIDENCE ON THE QUESTION OF REFORMATION WAS
BASED ON A NONFACT (THE BELIEF THAT THE UNION HAD NOT RAISED THE ISSUE
OF REFORMATION PRIOR TO THE ARBITRATION HEARING) AND CITES, AS A BASIS
FOR REMANDING THE CASE FOR A FURTHER HEARING, A PRIVATE SECTOR CASE,
ELECTRONICS CORPORATION OF AMERICA V. INTERNATIONAL UNION OF ELECTRICAL,
RADIO AND MACHINE WORKERS, AFL-CIO LOCAL 272, 492 F.2D 1255 (1ST CIR.
1974). THAT CASE STANDS FOR THE PROPOSITION THAT WHERE THE CENTRAL FACT
UNDERLYING AN ARBITRATOR'S AWARD IS CONCEDEDLY ERRONEOUS, AND IN EFFECT
IS A GROSS MISTAKE OF FACT BUT FOR WHICH A DIFFERENT RESULT WOULD HAVE
BEEN REACHED, COURTS IN THE PRIVATE SECTOR WILL OVERTURN THE AWARD. THE
FEDERAL LABOR RELATIONS COUNCIL WILL GRANT A PETITION FOR REVIEW OF
ARBITRATION AWARDS ON SIMILAR GROUNDS UNDER SECTION 2411.32 OF THE
COUNCIL'S RULES OF PROCEDURE. HOWEVER, THE UNION IN THE INSTANT CASE
DOES NOT TAKE EXCEPTION TO THE AWARD ON THE GROUNDS THAT THE CENTRAL
FACT UNDERLYING THE AWARD ITSELF WAS A NONFACT, BUT TAKES EXCEPTION TO
THE AWARD ONLY ON THE GROUNDS THAT THE ARBITRATOR'S REFUSAL TO HEAR
EVIDENCE AND RULE ON THE ISSUE OF REFORMATION WAS BASED ON A NONFACT
(THE BELIEF THAT THE ISSUE OF REFORMATION HAD NOT BEEN RAISED BY THE
UNION PRIOR TO THE ARBITRATION HEARING). THUS, THE COUNCIL IS OF THE
OPINION THAT THE UNION'S RELIANCE ON ELECTRONICS CORPORATION IS
MISPLACED AND THAT THE UNION'S PETITION DOES NOT PRESENT FACTS AND
CIRCUMSTANCES NECESSARY TO SUPPORT AN ASSERTION THAT THE ARBITRATOR
BASED HIS AWARD ON A NONFACT BUT FOR WHICH A DIFFERENT RESULT WOULD HAVE
BEEN REACHED. THE ARBITRATOR IN THE INSTANT CASE HAS SET FORTH THE
BASIS OF HIS AWARD AS BEING THE NATURE OF THE POSITION UNDER THE
PUBLISHED AGREEMENT AND AMENDMENT. THUS, HE CONCLUDED THAT THE "CENTRAL
FACT UNDERLYING THE AWARD IS THE EXISTENCE OF THE AGREEMENT AND
AMENDMENTS AS PUBLISHED." /3/
THE UNION ALSO CONTENDS THAT THE CASE SHOULD BE REMANDED BECAUSE THE
ARBITRATOR'S REFUSAL TO HEAR EVIDENCE ON THE QUESTION OF REFORMATION WAS
A REFUSAL TO HEAR PERTINENT AND MATERIAL EVIDENCE. A REFUSAL OF AN
ARBITRATOR TO HEAR EVIDENCE PERTINENT AND MATERIAL TO THE CONTROVERSY
BEFORE HIM IS A GROUND UPON WHICH COURTS IN THE PRIVATE SECTOR WILL
SUSTAIN CHALLENGES TO ARBITRATION AWARDS. SHOPPING CART, INC. V.
AMALGAMATED FOOD EMPLOYEES LOCAL 196, 350 F.SUPP. 1221 (E.D. PA. 1972);
HARVEY ALUMINUM V. UNITED STEELWORKERS OF AMERICA, AFL-CIO, 263 F.SUPP.
488 (C.D. CAL. 1967). THE FEDERAL LABOR RELATIONS COUNCIL WILL GRANT A
PETITION FOR REVIEW OF ARBITRATION AWARDS ON SIMILAR GROUNDS UNDER
SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE. HOWEVER, IN THE
INSTANT CASE THE ARBITRATOR CONCLUDED THAT REFORMATION WAS NOT PART OF
THE GRIEVANCE AND THUS NOT PART OF THE CONTROVERSY BEFORE HIM. /4/ WE
CONCLUDE, THEREFORE, THAT THE UNION'S PETITION DOES NOT PRESENT THE
FACTS AND CIRCUMSTANCES NECESSARY TO SUPPORT ITS ASSERTION THAT THE
ARBITRATOR FAILED TO HEAR EVIDENCE PERTINENT AND MATERIAL TO THE
CONTROVERSY BEFORE HIM.
ACCORDINGLY, AND WITHOUT PASSING UPON THE RESPONSIBILITIES OF
ARBITRATORS IN THE FEDERAL SECTOR TO CONSIDER QUESTIONS OF REFORMATION
WHERE SUCH QUESTIONS ARE PROPERLY AND TIMELY RAISED, THE COUNCIL HAS
DENIED REVIEW OF THE UNION'S PETITION BECAUSE IT FAILS TO MEET THE
REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.32 OF ITS RULES OF
PROCEDURE.
BY THE COUNCIL.
CC: P. WEIGHTMAN
CSA
/1/ SECTION 3 OF THE AMENDMENT TO THE AGREEMENT, DATED SEPTEMBER 11,
1973, READS AS FOLLOWS:
BOTH PARTIES AGREE THAT ALL APPOINTMENTS MADE TO TOP LEVEL MANAGEMENT
POSITIONS (OFFICE
HEADS, DIRECTORS OF REGIONAL LEGAL SERVICES, PERSONNEL DIRECTORS,
REGIONAL DIRECTORS, AND EEO
OFFICERS), NOT SUBJECT TO HIGHER AUTHORITY, WILL BE PROFESSIONALLY
QUALIFIED, APPOINTED IN
ACCORDANCE WITH CIVIL SERVICE REGULATIONS AND, WHEN POSSIBLE, AFTER
CONSULTATION WITH THE
UNION.
/2/ SECTION 11 OF THE SAME AMENDMENT PROVIDES AS FOLLOWS:
THE PARTIES AGREE THAT ALL VACANCIES WILL BE POSTED, AND THAT ALL
VACANCIES IN THE
COMPETITIVE SERVICE ABOVE THE ENTRY LEVEL WILL BE FILLED WITH
IN-HOUSE CANDIDATES, WHERE
POSSIBLE WITH THE EXCEPTION OF POLICY AND SUPERVISORY POSITIONS OR
WHEN THERE IS AN EMERGENCY
WHICH PRECLUDES USE OF THE MERIT PROMOTION SYSTEM. WHENEVER
MANAGEMENT DETERMINES SUCH AN
EMERGENCY EXISTS, IT WILL NOTIFY THE UNION OF THE REASONS IN ADVANCE.
DURING FY'74 EMPLOYEES
TRANSFERRED FROM OEO WILL BE CONSIDERED IN-HOUSE CANDIDATES FOR THIS
PURPOSE. ARTICLE 12,
SECTION 4A OF THE CONTRACT IS HEREBY AMENDED.
/3/ THE ARBITRATOR CONCEDES THAT "IF THIS IS ERRONEOUS, OR A
NON-FACT, ADMITTEDLY THE AWARD CANNOT STAND."
/4/ THE UNION, IN EFFECT, DISAGREES WITH THE ARBITRATOR'S CONCLUSION
THAT REFORMATION WAS NOT PART OF THE ISSUE BEFORE HIM. HOWEVER THERE IS
NO INDICATION THAT THE PARTIES ENTERED INTO A SUBMISSION AGREEMENT AND,
AS THE COUNCIL HAS PREVIOUSLY STATED, IN THE ABSENCE OF A SUBMISSION
AGREEMENT THE ARBITRATOR'S UNCHALLENGED FORMULATION OF THE QUESTION MAY
BE REGARDED AS THE EQUIVALENT OF A SUBMISSION AGREEMENT AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 12 (AFGE) AND U.S. DEPARTMENT
OF LABOR (JAFFEE, ARBITRATOR), FLRC NO. 72A-3 (JULY 31, 1973), REPORT
NO. 42.
3 FLRC 529; FLRC NO. 75A-59; AUGUST 14, 1975.
MR. JANET COOPER, STAFF ATTORNEY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
1737 H STREET, NW.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 75A-59
DEPARTMENT OF THE NAVY, NAVAL PLANT REPRESENTATIVE OFFICE, BALTIMORE,
MARYLAND, A/SLMR NO. 486. THE ASSISTANT SECRETARY FOUND THAT THE
ACTIVITY VIOLATED SECTION 19(A)(6) OF THE ORDER BY FAILING TO MEET AND
CONFER WITH LOCAL 1624, NATIONAL FEDERATION OF FEDERAL EMPLOYEES
REGARDING THE PROCEDURES TO BE FOLLOWED IN IMPLEMENTING A DECISION TO
REASSIGN EMPLOYEES TO A DIFFERENT WORK SHIFT, AND THE IMPACT THEREON ON
ADVERSELY AFFECTED EMPLOYEES; AND ISSUED A REMEDIAL ORDER. THE UNION
SUBSEQUENTLY REQUESTED THAT THE ASSISTANT SECRETARY CLARIFY HIS REMEDIAL
ORDER BY REQUIRING THE ACTIVITY TO TERMINATE THE REASSIGNMENT UNTIL THE
PARTIES HAD AN OPPORTUNITY TO BARGAIN CONCERNING IMPLEMENTATION AND
IMPACT. THE ASSISTANT SECRETARY DETERMINED, AMONG OTHER THINGS, THAT
THE UNION HAD MISCONSTRUED HIS REMEDIAL ORDER AND THAT THE ORDER
REQUESTED BY THE UNION WOULD NOT BE WARRANTED IN THIS CASE. IN THE
ABSENCE OF ANY EVIDENCE OF NONCOMPLIANCE, THE ASSISTANT SECRETARY
THEREFORE DIRECTED THAT THE CASE BE CLOSED. THE UNION APPEALED TO THE
COUNCIL, CONTENDING THAT THE DECISION OF THE ASSISTANT SECRETARY
PRESENTS A MAJOR POLICY ISSUE.
COUNCIL ACTION (AUGUST 14, 1975). THE COUNCIL HELD THAT THE DECISION
OF THE ASSISTANT SECRETARY DOES NOT APPEAR ARBITRARY AND CAPRICIOUS AND
DOES NOT PRESENT A MAJOR POLICY ISSUE. ACCORDINGLY, THE COUNCIL DENIED
THE UNION'S PETITION FOR REVIEW SINCE IT FAILED TO MEET THE REQUIREMENTS
FOR REVIEW SET FORTH IN SECTION 2411.12 OF THE COUNCIL'S RULES (5 CFR
2411.12).
DEAR MS. COOPER:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR REQUEST FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
IN THIS CASE, THE ASSISTANT SECRETARY FOUND THAT THE NAVAL PLANT
REPRESENTATIVE OFFICE, BALTIMORE, MARYLAND (ACTIVITY), THOUGH IT HAD NO
OBLIGATION TO BARGAIN REGARDING ITS DECISION TO REASSIGN EMPLOYEES TO A
DIFFERENT WORK SHIFT, VIOLATED SECTION 19(A)(6) OF THE ORDER BY FAILING
TO MEET AND CONFER WITH LOCAL 1624, NATIONAL FEDERATION OF FEDERAL
EMPLOYEES (UNION), REGARDING THE PROCEDURES TO BE FOLLOWED IN
IMPLEMENTING THAT REASSIGNMENT AND THE IMPACT THEREOF ON ADVERSELY
AFFECTED EMPLOYEES. THE ASSISTANT SECRETARY'S REMEDIAL ORDER DIRECTED
THE ACTIVITY TO CEASE AND DESIST FROM:
INSTITUTING A REASSIGNMENT TO DIFFERENT WORK SHIFTS OF EMPLOYEES . .
. WITHOUT NOTIFYING
. . . (THE UNION) . . . AND AFFORDING (IT) THE OPPORTUNITY TO MEET
AND CONFER . . . ON THE
PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN IMPLEMENTING SUCH
REASSIGNMENT, AND ON THE IMPACT
THE REASSIGNMENT WILL HAVE ON THE EMPLOYEES ADVERSELY AFFECTED BY
SUCH ACTION.
HE ALSO ORDERED THE ACTIVITY TO TAKE CERTAIN AFFIRMATIVE ACTIONS,
INCLUDING THE FOLLOWING:
NOTIFY (THE UNION) . . . OF ANY INTENDED REASSIGNMENT OF EMPLOYEES TO
DIFFERENT WORK SHIFTS
AND, UPON REQUEST, MEET AND CONFER IN GOOD FAITH . . . ON THE
PROCEDURES WHICH MANAGEMENT WILL
OBSERVE IN IMPLEMENTING SUCH REASSIGNMENT AND ON THE IMPACT THE
REASSIGNMENT WILL HAVE ON THE
EMPLOYEES ADVERSELY AFFECTED BY SUCH ACTION.
SUBSEQUENTLY, IN A LETTER TO THE ASSISTANT SECRETARY, THE UNION
ALLEGED THAT THE EMPLOYEES WERE STILL WORKING ON THE REASSIGNED WORK
SHIFTS AND REQUESTED THAT THE ASSISTANT SECRETARY CLARIFY HIS REMEDIAL
ORDER BY REQUIRING THE ACTIVITY TO TERMINATE THE REASSIGNMENT UNTIL THE
PARTIES HAD AN OPPORTUNITY TO BARGAIN CONCERNING IMPLEMENTATION AND
IMPACT. IN RESPONSE, THE ASSISTANT SECRETARY STATED THAT THE UNION HAS
MISCONSTRUED HIS REMEDIAL ORDER, WHICH "DID NOT REQUIRE A RETURN TO THE
STATUS QUO ANTE." HE FURTHER STATED THAT SUCH AN ORDER WOULD NOT BE
WARRANTED IN THIS CASE, WHICH INVOLVED CONDUCT OCCURRING IN 1973, SINCE
THE ACTIVITY WAS ENTITLED UNDER THE ORDER TO MAKE SUCH A REASSIGNMENT,
AND "A STATUS QUO ANTE REMEDIAL ORDER WOULD NOT, AFTER REINSTITUTION OF
THE OLD SHIFTS, PROHIBIT THE (ACTIVITY) FROM AGAIN CHANGING THE SHIFTS
AFTER APPROPRIATE NOTIFICATION AND BARGAINING ONLY WITH RESPECT TO
IMPLEMENTATION AND IMPACT." IN THE ASSISTANT SECRETARY'S VIEW THIS WOULD
BE MORE DISRUPTIVE THAN CONSTRUCTIVE, AND, ACCORDINGLY, HE STATED THAT
THE REMEDIAL ORDER HEREIN, REQUIRING THE ACTIVITY TO BARGAIN OVER
IMPLEMENTATION AND IMPACT AFTER AN APPROPRIATE REQUEST AND PROHIBITING A
CHANGE IN EMPLOYEE SHIFTS IN THE FUTURE WITHOUT APPROPRIATE NOTIFICATION
AND BARGAINING, WAS "THE MOST SATISFACTORY RESOLUTION OF THE ISSUES" IN
THE CASE. IN THE ABSENCE OF ANY EVIDENCE OF NONCOMPLIANCE WITH THE
REMEDIAL ORDER HEREIN, THE ASSISTANT SECRETARY THEREFORE DIRECTED THAT
THE CASE BE CLOSED.
IN YOUR APPEAL TO THE COUNCIL, YOU CONTEND THAT THE DECISION OF THE
ASSISTANT SECRETARY PRESENTS A MAJOR POLICY ISSUE REGARDING THE
EFFECTIVENESS OF REMEDIES IN UNFAIR LABOR PRACTICE CASES UNDER THE
FEDERAL LABOR-MANAGEMENT RELATIONS PROGRAM. IN ESSENCE, YOU CONTEND
THAT BY NOT REQUIRING THE ACTIVITY TO CEASE AND DESIST FROM ITS PREVIOUS
REASSIGNMENT OF EMPLOYEES TO A DIFFERENT WORK SHIFT WITHOUT PRIOR
BARGAINING, THE ASSISTANT SECRETARY HAS SHOWN THAT CEASE AND DESIST
ORDERS ARE MEANINGLESS AND HAS IN EFFECT ENCOURAGED AGENCIES TO MAKE
SUCH CHANGES WITHOUT BARGAINING; AND THAT SINCE YOU LOST THE
OPPORTUNITY TO NEGOTIATE REGARDING THE PROBLEMS CAUSED BY THE
REASSIGNMENT BEFORE THE DECISION TO REASSIGN WAS MADE HEREIN, THE ONLY
APPROPRIATE REMEDY IS ACTUALLY TO BE AFFORDED THAT OPPORTUNITY
RETROACTIVELY.
IN THE COUNCIL'S VIEW, YOUR PETITION FOR REVIEW DOES NOT MEET THE
REQUIREMENTS OF SECTION 2411.12 OF THE COUNCIL'S RULES. THAT IS, YOU
HAVE NOT ALLEGED AND IT DOES NOT APPEAR THAT THE DECISION OF THE
ASSISTANT SECRETARY IS ARBITRARY AND CAPRICIOUS, NOR DOES IT APPEAR THAT
A MAJOR POLICY ISSUE IS PRESENTED. WITH RESPECT TO YOUR CONTENTION THAT
THE ASSISTANT SECRETARY'S CLARIFICATION OF HIS OWN REMEDIAL ORDER HAS
RENDERED THAT ORDER MEANINGLESS, SECTION 6(B) OF THE ORDER CONFERS
CONSIDERABLE DISCRETION ON THE ASSISTANT SECRETARY, WHO "MAY REQUIRE AN
AGENCY OR A LABOR ORGANIZATION TO CEASE AND DESIST FROM VIOLATIONS OF
THIS ORDER AND REQUIRE IT TO TAKE SUCH AFFIRMATIVE ACTION AS HE
CONSIDERS APPROPRIATE TO EFFECTUATE THE POLICIES OF THIS ORDER." THE
AUTHORITY OF THE ASSISTANT SECRETARY TO ISSUE REMEDIAL ORDERS INCLUDES
THE AUTHORITY TO INTERPRET THOSE ORDERS. IN THE COUNCIL'S OPINION, THE
ASSISTANT SECRETARY'S CLARIFICATION OF HIS REMEDIAL ORDER IS NOT WITHOUT
REASONABLE JUSTIFICATION IN THE CIRCUMSTANCES OF THIS CASE. MOREOVER,
IT DOES NOT APPEAR THAT THE ASSISTANT SECRETARY HAS EITHER EXCEEDED THE
SCOPE OF HIS AUTHORITY UNDER SECTION 6(B) OF THE ORDER OR THAT HIS
CLARIFICATION OF THE REMEDIAL ORDER HEREIN IS INCONSISTENT WITH THE
POLICIES OF THE ORDER, AND THEREFORE NO MAJOR POLICY ISSUE IS PRESENTED
WARRANTING COUNCIL REVIEW. SIMILARLY, NO MAJOR POLICY ISSUE IS
PRESENTED WITH RESPECT TO YOUR CONTENTION THAT THE ASSISTANT SECRETARY
FAILED TO REQUIRE THE ACTIVITY TO COMPLY WITH HIS REMEDIAL ORDER, SINCE
THE ASSISTANT SECRETARY FOUND NO EVIDENCE OF NONCOMPLIANCE WITH HIS
ORDER AS INTERPRETED, AND THE COUNCIL WILL NOT REVIEW SUCH A FINDING
UNLESS IT IS ARBITRARY AND CAPRICIOUS OR PRESENTS AN INDEPENDENT MAJOR
POLICY ISSUE.
SINCE THE DECISION OF THE ASSISTANT SECRETARY DOES NOT APPEAR
ARBITRARY AND CAPRICIOUS AND DOES NOT PRESENT A MAJOR POLICY ISSUE, YOUR
APPEAL FAILS TO MEET THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION
2411.12 OF THE COUNCIL'S RULES. ACCORDINGLY, YOUR PETITION FOR REVIEW
IS DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
E. BORDA
DEPT. OF NAVY
3 FLRC 526; FLRC NO. 75A-51; AUGUST 14, 1975.
MS. LISA RENEE STRAX, STAFF ATTORNEY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
1737 H STREET, NW.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 75A-51
HEADQUARTERS, 31ST COMBAT SUPPORT GROUP (TAC,) HOMESTEAD AIR FORCE
BASE, FLORIDA, ASSISTANT SECRETARY CASE NO. 42-2575. THE ASSISTANT
SECRETARY, IN AGREEMENT WITH THE ACTING ASSISTANT REGIONAL DIRECTOR,
FOUND THAT THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES (NFFE) DID NOT
PRESENT SUFFICIENT EVIDENCE TO ESTABLISH A REASONABLE BASIS FOR ITS
COMPLAINT, WHICH ALLEGED THAT THE ACTIVITY VIOLATED SECTION 19(A)(1) AND
(2) OF THE ORDER BY FAILING TO GRANT AN EMPLOYEE AND HIS REPRESENTATIVE,
THE PRESIDENT OF NFFE LOCAL 1167, EITHER OFFICIAL TIME OR AN EXTENSION
OF TIME TO APPEAL THE ACTIVITY'S DENIAL OF THE EMPLOYEE'S GRIEVANCE
UNDER THE AGENCY GRIEVANCE PROCEDURE. ACCORDINGLY, THE ASSISTANT
SECRETARY DENIED NFFE'S REQUEST FOR REVIEW OF THE ACTING ARD'S DISMISSAL
OF THE COMPLAINT. THE UNION APPEALED TO THE COUNCIL, CONTENDING THAT
THE ASSISTANT SECRETARY'S DECISION PRESENTS A MAJOR POLICY ISSUE AND WAS
ARBITRARY AND CAPRICIOUS.
COUNCIL ACTION (AUGUST 14, 1975). THE COUNCIL HELD THAT THE
ASSISTANT SECRETARY'S DECISION DOES NOT PRESENT A MAJOR POLICY ISSUE AND
DOES NOT APPEAR ARBITRARY AND CAPRICIOUS. ACCORDINGLY, SINCE THE
UNION'S APPEAL FAILED TO MEET THE REQUIREMENTS FOR REVIEW SET FORTH IN
SECTION 2411.12 OF THE COUNCIL'S RULES (5 CFR 2411.12), THE COUNCIL
DENIED THE PETITION FOR REVIEW.
DEAR MS. STRAX:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
THE ASSISTANT SECRETARY DENIED NFFE'S REQUEST FOR REVIEW SEEKING
REVERSAL OF THE ACTING ASSISTANT REGIONAL DIRECTOR'S DISMISSAL OF NFFE'S
COMPLAINT WHICH ALLEGED THAT HEADQUARTERS, 31ST COMBAT SUPPORT GROUP
(TAC), HOMESTEAD AIR FORCE BASE, FLORIDA (THE ACTIVITY) VIOLATED SECTION
19(A)(1) AND (2) OF THE ORDER BY FAILING TO GRANT AN EMPLOYEE AND HIS
REPRESENTATIVE, THE PRESIDENT OF NFFE LOCAL 1167, EITHER OFFICIAL TIME
OR AN EXTENSION OF TIME TO APPEAL THE ACTIVITY'S DENIAL OF THE
EMPLOYEE'S GRIEVANCE UNDER THE AGENCY GRIEVANCE PROCEDURE.
THE ASSISTANT SECRETARY, IN AGREEMENT WITH THE ACTING ASSISTANT
REGIONAL DIRECTOR, FOUND THAT NFFE DID NOT PRESENT SUFFICIENT EVIDENCE
TO ESTABLISH A REASONABLE BASIS FOR THE COMPLAINT; SPECIFICALLY, NFFE
FAILED TO SHOW IN THE PARTICULAR CIRCUMSTANCES OF THIS CASE INVOLVING
THE PROCESSING OF A GRIEVANCE UNDER AN AGENCY GRIEVANCE PROCEDURE, THAT
THE ACTIVITY'S REFUSAL TO GRANT OFFICIAL TIME OR AN EXTENSION OF TIME
WAS MOTIVATED BY ANTIUNION CONSIDERATIONS. THE ASSISTANT SECRETARY ALSO
NOTED, AS DID THE ACTING ASSISTANT REGIONAL DIRECTOR, THAT "A VIOLATION
OF THE AGENCY GRIEVANCE PROCEDURE WOULD NOT, BY ITSELF, CONSTITUTE A
VIOLATION OF SECTION 19 OF THE ORDER" IN ANY EVENT.
IN YOUR APPEAL TO THE COUNCIL, YOU CONTEND THAT THE ASSISTANT
SECRETARY'S DECISION PRESENTS A MAJOR POLICY ISSUE AS TO WHETHER THE
CIRCUMSTANCES OF THE CASE SUPPORT A VIOLATION OF SECTION 19(A)(1) AND
(2) OF THE ORDER. SUCH CONTENTION CONSTITUTES, IN EFFECT, NOTHING MORE
THAN DISAGREEMENT WITH THE ASSISTANT SECRETARY'S FINDING THAT NFFE HAD
NOT PRESENTED SUFFICIENT EVIDENCE TO ESTABLISH A REASONABLE BASIS FOR
THE COMPLAINT. IT DOES NOT, THEREFORE, PRESENT A MAJOR POLICY ISSUE
WARRANTING COUNCIL REVIEW. SEE DEPARTMENT OF THE ARMY, INDIANA ARMY
AMMUNITION PLANT, CHARLESTON, INDIANA, ASSISTANT SECRETARY CASE NO.
50-11018 (CA), FLRC NO. 74A-90.
YOU ALSO CONTEND THAT THE ASSISTANT SECRETARY WAS ARBITRARY AND
CAPRICIOUS IN THAT HE MISTAKENLY ADDRESSED HIMSELF TO INAPPLICABLE
ISSUES. SPECIFICALLY, YOU ARGUE THAT THE ASSISTANT SECRETARY IMPROPERLY
RELIED UPON HIS DECISION IN OFFICE OF ECONOMIC OPPORTUNITY, REGION V,
CHICAGO, ILLINOIS, A/SLMR NO. 334, WHICH YOU VIEW AS CLEARLY
DISTINGUISHABLE FROM THE PRESENT CASE. IN THAT CASE, THE ASSISTANT
SECRETARY FOUND THAT THE AGENCY'S FAILURE TO PROCESS GRIEVANCES UNDER
THE AGENCY GRIEVANCE PROCEDURE, IN WHICH THE GRIEVANT WAS REPRESENTED BY
THE UNION, DID NOT VIOLATE SECTION 19(A)(1) EVEN ASSUMING THAT THE
AGENCY IMPROPERLY FAILED TO APPLY THE PROVISIONS OF ITS OWN GRIEVANCE
PROCEDURE, BECAUSE SUCH A FAILURE, STANDING ALONE, DOES NOT INTERFERE
WITH RIGHTS ASSURED BY THE ORDER. FURTHER, HE FOUND THAT THE EVIDENCE
DID NOT ESTABLISH THAT THE AGENCY'S CONDUCT WAS MOTIVATED BY ANTIUNION
CONSIDERATIONS. THE COUNCIL DENIED REVIEW OF HIS DECISION IN FLRC NO.
74A-3 (APRIL -9, 1974), REPORT NO. 52, STATING IN PERTINENT PART, "(I)T
IS CLEAR . . . THAT THE AGENCY'S FAILURE TO FOLLOW ITS OWN GRIEVANCE
PROCEDURE, STANDING ALONE, IS NOT VIOLATIVE OF . . . THE ORDER.
MOREOVER, SUCH A FAILURE ON THE PART OF AN AGENCY . . . DOES NOT BECOME
A VIOLATION . . . MERELY BY REASON OF THE REPRESENTATION OF A PARTICULAR
GRIEVANT BY A LABOR ORGANIZATION." IN THE COUNCIL'S OPINION, THE
ASSISTANT SECRETARY'S REFERENCE HEREIN TO THE ANALOGOUS CASE, OFFICE OF
ECONOMIC OPPORTUNITY, REGION V, THEREFORE WAS NOT WITHOUT REASONABLE
JUSTIFICATION PARTICULARLY WHERE, AS NOTED ABOVE, THE ASSISTANT
SECRETARY FOUND THAT NFFE HAD PRESENTED INSUFFICIENT EVIDENCE TO
ESTABLISH ANY OTHER BASIS FOR THE COMPLAINT.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT PRESENT A MAJOR
POLICY ISSUE AND DOES NOT APPEAR ARBITRARY AND CAPRICIOUS, YOUR APPEAL
FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED IN SECTION 2411.12
OF THE COUNCIL'S RULES. ACCORDINGLY, YOUR PETITION FOR REVIEW IS
DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
M. O. DINGFIELD
AIR FORCE
3 FLRC 522; FLRC NO. 75A-47; AUGUST 14, 1975.
MR. RICHARD L. ROBERTSON
CHIEF STEWARD, INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, LOCAL 574
632 FIFTH STREET
BREMERTON, WASHINGTON 98310
(SYNOPSIS) FLRC NO. 75A-47
PUGET SOUND NAVAL SHIPYARD, BREMERTON, WASHINGTON, ASSISTANT
SECRETARY CASE NO. 71-3246. THE ASSISTANT SECRETARY, IN AGREEMENT WITH
THE ASSISTANT REGIONAL DIRECTOR, DISMISSED THE UNFAIR LABOR PRACTICE
COMPLAINT OF THE INDIVIDUAL COMPLAINANT IN THIS CASE AS UNTIMELY FILED.
THE COMPLAINANT APPEALED TO THE COUNCIL, CONTENDING THAT THE ASSISTANT
SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS AND PRESENTS MAJOR
POLICY ISSUES; AND REQUESTED A STAY OF THE ASSISTANT SECRETARY'S
DECISION.
COUNCIL ACTION (AUGUST 14, 1975). THE COUNCIL HELD THAT THE
ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY AND CAPRICIOUS
AND DOES NOT PRESENT ANY MAJOR POLICY ISSUE. ACCORDINGLY, SINCE THE
COMPLAINANT'S PETITION FAILED TO MEET THE REQUIREMENTS FOR REVIEW UNDER
SECTION 2411.12 OF THE COUNCIL'S RULES OF PROCEDURE (5 CFR 2411.12), THE
COUNCIL DENIED REVIEW OF THE APPEAL. THE COUNCIL LIKEWISE DENIED THE
COMPLAINANT'S REQUEST FOR A STAY.
DEAR MR. ROBERTSON:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW AND
REQUEST FOR A STAY OF THE ASSISTANT SECRETARY'S DECISION IN THE
ABOVE-ENTITLED CASE.
IN THIS CASE, YOU FILED A PRE-COMPLAINT UNFAIR LABOR PRACTICE CHARGE
AND SUBSEQUENT COMPLAINT AGAINST PUGET SOUND NAVAL SHIPYARD, BREMERTON,
WASHINGTON (THE ACTIVITY), ON BEHALF OF AN EMPLOYEE WHO HAD RECEIVED AN
ALLEGEDLY IMPROPER "REPRIMAND NOTICE." IN AGREEMENT WITH THE ASSISTANT
REGIONAL DIRECTOR (ARD), THE ASSISTANT SECRETARY DISMISSED YOUR
COMPLAINT AS UNTIMELY FILED, SINCE THE ALLEGED UNFAIR LABOR PRACTICE
OCCURRED MORE THAN SIX MONTHS PRIOR TO THE DATE ON WHICH THE
PRE-COMPLAINT CHARGE WAS FILED AND MORE THAN NINE MONTHS PRIOR TO THE
DATE ON WHICH THE COMPLAINT WAS FILED, AND THEREFORE DID NOT MEET THE
TIMELINESS REQUIREMENTS CONTAINED IN SECTION 203.2(A)(2) /1/ AND
203.2(B)(3) /2/ OF HIS REGULATIONS.
IN YOUR PETITION FOR REVIEW YOU CONTEND THAT THE ASSISTANT
SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS AND PRESENTS MAJOR
POLICY ISSUES BECAUSE, IN SUMMARY, THE DECISION DEVIATES FROM
ESTABLISHED PRINCIPLES SET FORTH IN FEDERAL COURT DECISIONS; SECTION
206.8 /3/ OF THE ASSISTANT SECRETARY'S REGULATIONS SHOULD PREVAIL OVER
THE REQUIREMENTS FOR TIMELY FILING SET FORTH IN SECTION 203.2 OF HIS
REGULATIONS WHEN A VALID CLAIM OR DEFENSE HAS BEEN ASSERTED AND THERE IS
NO SHOWING TO THE CONTRARY; AND, FURTHER, THE ASSISTANT SECRETARY
ABUSED HIS DISCRETION UNDER SECTION 206.8 OF HIS REGULATIONS BY
DISMISSING THE COMPLAINT WITHOUT ADDRESSING THE MITIGATING CIRCUMSTANCES
SET FORTH IN THE REQUEST FOR REVIEW OF THE ARD'S DETERMINATION FILED
WITH THE ASSISTANT SECRETARY.
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW OF THE ASSISTANT
SECRETARY'S DECISION DOES NOT MEET THE REQUIREMENTS OF SECTION 2411.12
OF THE COUNCIL'S RULES; THAT IS, HIS FINDINGS AND DECISION DO NOT
APPEAR ARBITRARY AND CAPRICIOUS NOR DO THEY PRESENT ANY MAJOR POLICY
ISSUES. WITH REGARD TO YOUR CONTENTION THAT THE ASSISTANT SECRETARY'S
DECISION IS ARBITRARY AND CAPRICIOUS, IT DOES NOT APPEAR THAT THE
ASSISTANT SECRETARY ACTED WITHOUT REASONABLE JUSTIFICATION IN HIS
DECISION. FURTHER, AS TO YOUR CONTENTION THAT HIS DECISION IS ARBITRARY
AND CAPRICIOUS AND PRESENTS MAJOR POLICY ISSUES, PURSUANT TO THE
AUTHORITY OF THE ASSISTANT SECRETARY UNDER SECTION 6(D) OF THE ORDER TO
PRESCRIBE REGULATIONS NEEDED TO ADMINISTER HIS FUNCTIONS UNDER THE
ORDER, THE ASSISTANT SECRETARY HAS PROMULGATED REGULATIONS WHICH
PROVIDE, IN PERTINENT PART, THAT A PRE-COMPLAINT CHARGE AND A COMPLAINT
MUST BE FILED WITHIN SIX AND NINE MONTHS, RESPECTIVELY, OF THE
OCCURRENCE OF THE ALLEGED UNFAIR LABOR PRACTICE. HIS DECISION IN YOUR
CASE WAS BASED ON THE APPLICATION OF THESE REGULATIONS, AND YOUR
PETITION PRESENTS NO PERSUASIVE REASONS TO SHOW THAT THE ASSISTANT
SECRETARY WAS WITHOUT AUTHORITY TO ESTABLISH SUCH A REGULATORY
REQUIREMENT OR THAT HE WRONGLY APPLIED THESE REGULATIONS TO THE FACTS
AND CIRCUMSTANCES OF THIS CASE. IN THIS REGARD, WE NOTE THAT WHILE YOU
ALLEGE THAT THE ASSISTANT SECRETARY ABUSED HIS DISCRETION UNDER SECTION
206.8 OF HIS REGULATIONS BY DISMISSING THE COMPLAINT AS UNTIMELY FILED
WITHOUT ADDRESSING THE MITIGATING CIRCUMSTANCES SET FORTH IN YOUR
REQUEST TO HIM FOR REVIEW OF THE ARD'S DETERMINATION, YOUR PETITION FOR
REVIEW TO THE COUNCIL FAILS TO SET FORTH ANY CIRCUMSTANCES TO SUPPORT
THIS ALLEGATION OR TO DEMONSTRATE THAT HIS DISMISSAL IS INCONSISTENT
EITHER WITH THE PURPOSES OF THE ORDER OR WITH OTHER APPLICABLE
AUTHORITY.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS AND DOES NOT PRESENT ANY MAJOR POLICY ISSUES, YOUR APPEAL
FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED UNDER SECTION
2411.12 OF THE COUNCIL'S RULES OF PROCEDURE. ACCORDINGLY, REVIEW OF
YOUR APPEAL IS HEREBY DENIED, AND YOUR REQUEST FOR A STAY OF THE
ASSISTANT SECRETARY'S DECISION IS LIKEWISE DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
A. L. MCFALL
J. C. CAUSEY
NAVY
/1/ SECTION 203.2(A)(2) PROVIDES, IN PERTINENT PART:
(A) ACTION TO BE TAKEN BEFORE FILING A COMPLAINT. A PARTY DESIRING
TO FILE A COMPLAINT
ALLEGING AN UNFAIR LABOR PRACTICE UNDER SECTION 19 OF THE ORDER,
OTHER THAN SECTION 19(B)(4),
MUST TAKE THE FOLLOWING ACTION FIRST:
(2) THE CHARGE MUST BE FILED WITHIN SIX (6) MONTHS OF THE OCCURRENCE
OF THE ALLEGED UNFAIR
LABOR PRACTICE;
/2/ SECTION 203.2(B)(3) PROVIDES, IN PERTINENT PART:
(B) TIMELINESS OF A COMPLAINT.
(3) A COMPLAINT MUST BE FILED WITHIN NINE (9) MONTHS OF THE
OCCURRENCE OF THE ALLEGED
UNFAIR LABOR PRACTICE OR WITHIN SIXTY (60) DAYS OF THE SERVICE OF A
RESPONDENT'S WRITTEN FINAL
DECISION ON THE CHARGING PARTY, WHICHEVER IS THE SHORTER PERIOD OF
TIME.
/3/ SECTION 206.8 OF THE ASSISTANT SECRETARY'S REGULATIONS
(DESIGNATED AS SECTION 206.9 AS OF MAY 7, 1975), PROVIDES, IN PERTINENT
PART:
(A) THE REGULATIONS IN THIS CHAPTER MAY BE CONSTRUED LIBERALLY TO
EFFECTUATE THE PURPOSES
AND PROVISIONS OF THE ORDER.
(B) WHEN AN ACT IS REQUIRED OR ALLOWED TO BE DONE AT OR WITHIN A
SPECIFIED TIME, THE
ASSISTANT SECRETARY MAY AT ANY TIME ORDER THE PERIOD ALTERED WHERE IT
SHALL BE MANIFEST THAT
STRICT ADHERENCE WILL WORK SURPRISE OR INJUSTICE OR INTERFERE WITH
THE PROPER EFFECTUATION OF
THE ORDER.
3 FLRC 518; FLRC NO. 75A-39; AUGUST 14, 1975.
MR. JOHN F. BETAR
ADMINISTRATIVE COUNSEL
OFFICE OF THE GENERAL COUNSEL
FEDERAL DEPOSIT INSURANCE CORPORATION
WASHINGTON, D.C. 20429
(SYNOPSIS) FLRC NO. 85A-39
FEDERAL DEPOSIT INSURANCE CORPORATION, A/SLMR NO. 459. THE ASSISTANT
SECRETARY, UPON A REPRESENTATION PETITION FILED BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3488, AFL-CIO, DETERMINED, IN
PERTINENT PART, THAT COMMISSIONED BANK EXAMINERS ARE NOT SUPERVISORS
WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER. THE AGENCY APPEALED TO
THE COUNCIL, CONTENDING THAT THE ASSISTANT SECRETARY'S DECISION IS
ARBITRARY AND CAPRICIOUS AND PRESENTS MAJOR POLICY ISSUES. THE AGENCY
ALSO REQUESTED A STAY OF THE ASSISTANT SECRETARY'S DECISION.
COUNCIL ACTION (AUGUST 14, 1975). THE COUNCIL HELD THAT THE AGENCY'S
PETITION DOES NOT MEET THE REQUIREMENTS FOR REVIEW UNDER SECTION 2411.12
OF THE COUNCIL'S RULES (5 CFR 2411.12); THAT IS, THE FINDINGS AND
DECISION OF THE ASSISTANT SECRETARY DO NOT APPEAR IN ANY MANNER
ARBITRARY AND CAPRICIOUS, NOR DO THEY PRESENT ANY MAJOR POLICY ISSUES.
ACCORDINGLY, THE COUNCIL DENIED REVIEW OF THE AGENCY'S APPEAL. THE
COUNCIL LIKEWISE DENIED THE AGENCY'S REQUEST FOR A STAY.
DEAR MR. BETAR:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW AND
REQUEST FOR A STAY OF THE ASSISTANT SECRETARY'S DECISION, AND THE
UNION'S OPPOSITION THERETO, IN THE ABOVE-ENTITLED CASE.
IN THIS CASE, THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
3488, AFL-CIO (AFGE), SOUGHT AN ELECTION IN A UNIT OF ALL FULL-TIME
EMPLOYEES, INCLUDING COMMISSIONED BANK EXAMINERS, OF THE FEDERAL DEPOSIT
INSURANCE CORPORATION, NEW YORK REGION (THE ACTIVITY). /1/ THE
ASSISTANT SECRETARY DETERMINED, IN PERTINENT PART, THAT COMMISSIONED
BANK EXAMINERS ARE NOT SUPERVISORS WITHIN THE MEANING OF SECTION 2(C) OF
THE ORDER, BECAUSE:
(T)HE EVIDENCE IS INSUFFICIENT TO ESTABLISH THAT SUPERVISORY
AUTHORITY HAS BEEN VESTED IN
THE ACTIVITY'S COMMISSIONED BANK EXAMINERS, INASMUCH AS THEY DO NOT
HIRE, DISCHARGE, OR
REASSIGN EMPLOYEES AND WHEN THEY ACT AS EXAMINERS-IN-CHARGE, WHICH IS
NOT REQUIRED ON A
REGULAR AND CONTINUING BASIS, SUCH DIRECTION AS THEY GIVE TO OTHER
EMPLOYEES IS ROUTINE IN
NATURE, IS WITHIN ESTABLISHED GUIDELINES AND IS DICTATED BY
ESTABLISHED PROCEDURES. NOR DOES
THE EVIDENCE ESTABLISH THAT THEY PROMOTE OR EFFECTIVELY EVALUATE
OTHER EMPLOYEES.
IN YOUR PETITION FOR REVIEW, YOU CONTEND THAT THE ASSISTANT
SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS BECAUSE, IN ESSENCE, IT
TOTALLY REJECTS THE AGENCY'S TESTIMONY AND EVIDENCE PRESENTED, AND FAILS
TO ANSWER ANY OF THE AGENCY'S ARGUMENTS ESTABLISHING THAT COMMISSIONED
BANK EXAMINERS PERFORM ONE OR MORE OF THE FUNCTIONS ENUMERATED IN
SECTION 2(C) OF THE ORDER WHEN PERFORMING AS EXAMINERS-IN-CHARGE OF BANK
EXAMINATIONS, WHEN DIRECTING SUBORDINATE EMPLOYEES IN THE EXAMINATION OF
A BRANCH OR DEPARTMENT OF A BANK, OR WHEN ACTING AS TRAINING/EVALUATION
TEAM LEADERS. YOU FURTHER CONTEND THAT THE ASSISTANT SECRETARY'S
DECISION PRESENTS MAJOR POLICY ISSUES IN THAT IT: (1) FAILS TO
RECOGNIZE THAT SEVERAL OF THE FUNCTIONS PERFORMED BY THE COMMISSIONED
BANK EXAMINERS, WHEN ACTING AS EXAMINERS-IN-CHARGE, QUALIFY THEM AS
SUPERVISORS WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER; AND (2)
APPEARS TO HOLD THAT AN EMPLOYEE MUST PERFORM SUPERVISORY FUNCTIONS 100
PERCENT OF THE WORK YEAR TO QUALIFY AS A SUPERVISOR WITHIN THE MEANING
OF SECTION 2(C), WHICH WOULD BE A QUALIFICATION OF THE LANGUAGE OF THAT
SECTION, CONTRARY TO THE DECISIONS IN CHINA LAKE /2/ AND MARE ISLAND,
/3/ AND WOULD BE INCONSISTENT WITH OTHER ASSISTANT SECRETARY PRECEDENTS.
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW OF THE ASSISTANT
SECRETARY'S DECISION DOES NOT MEET THE REQUIREMENTS OF SECTION 2411.12
OF THE COUNCIL'S RULES; THAT IS, HIS FINDINGS AND DECISION DO NOT
APPEAR IN ANY MANNER ARBITRARY AND CAPRICIOUS, NOR DO THEY PRESENT ANY
MAJOR POLICY ISSUES. WITH REGARD TO YOUR CONTENTION CONCERNING EVIDENCE
CONSIDERED AND RELIED UPON, IT DOES NOT APPEAR THAT THE ASSISTANT
SECRETARY ACTED WITHOUT REASONABLE JUSTIFICATION IN REACHING HIS
DECISION THAT COMMISSIONED BANK EXAMINERS ARE NOT SUPERVISORS WITHIN THE
MEANING OF SECTION 2(C), IN THAT SUCH DECISION IS BASED UPON ESTABLISHED
PRINCIPLES REFLECTED IN HIS PREVIOUS PUBLISHED DECISIONS AND UPON THE
RECORD IN THE CASE. SEE ARIZONA NATIONAL GUARD, AIR NATIONAL GUARD, SKY
HARBOR AIRPORT, FLRC NO. 74A-78 (FEBRUARY 21, 1975), REPORT NO. 64.
WITH REGARD TO YOUR CONTENTION THAT THE ASSISTANT SECRETARY'S
DETERMINATION HEREIN THAT COMMISSIONED BANK EXAMINERS ARE NOT
SUPERVISORS WHEN PERFORMING AS EXAMINERS-IN-CHARGE IS INCONSISTENT WITH
THE COUNCIL'S DECISIONS IN CHINA LAKE AND MARE ISLAND, SUPRA, IN THAT
THE RECORD ESTABLISHES THAT EXAMINERS-IN-CHARGE EXERCISE SEVERAL OF THE
SUPERVISORY FUNCTIONS ENUMERATED IN SECTION 2(C), THE COUNCIL IS OF THE
OPINION THAT NO MAJOR POLICY ISSUE IS PRESENTED, NOTING PARTICULARLY
THAT THE ASSISTANT SECRETARY FOUND THAT EXAMINERS-IN-CHARGE DO NOT
EXERCISE INDEPENDENT JUDGMENT IN PERFORMING ANY FUNCTIONS ENUMERATED IN
SECTION 2(C) AND ONLY PERFORM SUCH FUNCTIONS IN ISOLATED INSTANCES.
WITH RESPECT TO YOUR RELATED CONTENTION THAT THE ASSISTANT
SECRETARY'S DECISION APPEARS TO HOLD THAT AN EMPLOYEE MUST PERFORM
SUPERVISORY FUNCTIONS 100 PERCENT OF THE WORK YEAR TO QUALIFY AS A
SUPERVISOR, IN THE COUNCIL'S VIEW NO MAJOR POLICY ISSUE IS PRESENTED BY
THE DECISION HEREIN, SINCE THE ASSISTANT SECRETARY DID NOT MAKE SUCH A
DETERMINATION BUT, RATHER, MERELY FOUND THAT COMMISSIONED BANK EXAMINERS
PERFORM EXAMINER-IN-CHARGE FUNCTIONS ON AN IRREGULAR AND NON-CONTINUING
BASIS AND EXERCISE SUPERVISORY FUNCTIONS IN THAT CAPACITY ONLY IN
ISOLATED INSTANCES. AS NOTED BY THE COUNCIL IN LABOR-MANAGEMENT
RELATIONS IN THE FEDERAL SERVICE (1975), P. 32:
(T)HE ASSISTANT SECRETARY HAS HELD, IN EFFECT, THAT MERE INTERMITTENT
AND INFREQUENT
POSSESSION OR ASSIGNMENT OF SUPERVISORY FUNCTIONS IS NOT A SUFFICIENT
BASIS FOR A
SUPERVISORY.DETERMINATION. THUS, THE FREQUENCY AND REGULARITY WITH
WHICH SUPERVISORY
AUTHORITY IS EXERCISED HAS BEEN MADE AN ELEMENT IN THE APPLICATION OF
THE DEFINITION.
THE COUNCIL AGREES WITH THE VIEW EXPRESSED IN THE REVIEW THAT ONLY
GENUINE SUPERVISORY
POSITIONS SHOULD BE EXCLUDED FROM BARGAINING UNITS. THE COUNCIL
WISHES TO NOTE THAT THE
DEFINITION IN THE ORDER WAS DESIGNED TO DO THIS AND CONTAINS A NUMBER
OF QUALIFICATIONS TO
THIS END. FOR EXAMPLE-- "IN THE INTEREST OF AN AGENCY", "RESPONSIBLY
TO DIRECT (EMPLOYEES)",
"EFFECTIVELY TO RECOMMEND", AND "EXERCISE OF AUTHORITY . . . NOT OF A
MERELY ROUTINE OR
CLERICAL NATURE, BUT (REQUIRING) THE USE OF INDEPENDENT JUDGMENT"--
ARE LIMITATIONS WHICH WERE
DESIGNED TO ASSURE THAT PERSONS DETERMINED TO BE SUPERVISORS WOULD
POSSESS ACTUAL AUTHORITY,
AS DISTINCT FROM WORK LEADERS, AND WOULD BE FOUND TO BE IN BONA FIDE
CONFLICT OF INTEREST
SITUATIONS IF NOT EXCLUDED FROM BARGAINING UNITS. THE COUNCIL
BELIEVES THAT THE CONTINUED
CAREFUL APPLICATION BY THE ASSISTANT SECRETARY OF THESE
QUALIFICATIONS IN THE MAKING OF
SUPERVISORY DETERMINATIONS WILL AID IN IDENTIFYING GENUINE
SUPERVISORY POSITIONS.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS AND DOES NOT PRESENT ANY MAJOR POLICY ISSUES, YOUR APPEAL
FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED UNDER SECTION
2411.12 OF THE COUNCIL'S RULES OF PROCEDURE. ACCORDINGLY, REVIEW OF
YOUR APPEAL IS HEREBY DENIED, AND YOUR REQUEST FOR A STAY OF THE
ASSISTANT SECRETARY'S DECISION IS LIKEWISE DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
H. L. ERDWEIN
AFGE
/1/ OF THE APPROXIMATELY 160 BANK EXAMINERS IN THE 180-EMPLOYEE UNIT
SOUGHT, 70-75 ARE COMMISSIONED BANK EXAMINERS RANGING IN GRADE FROM
GS-11 THROUGH GS-14.
/2/ U.S. NAVAL WEAPONS CENTER, CHINA LAKE, CALIFORNIA, FLRC NO.
72A-11 (MAY 25, 1973), REPORT NO. 40.
/3/ MARE ISLAND NAVAL SHIPYARD, VALLEJO, CALIFORNIA, FLRC NO. 72A-12
(MAY 25, 1973), REPORT NO. 40.
3 FLRC 514; FLRC NO. 75A-35; AUGUST 14, 1975.
MR. JAMES R. ROSA, STAFF COUNSEL
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
1325 MASSACHUSETTS AVENUE, NW.
WASHINGTON, D.C. 20005
(SYNOPSIS) FLRC NO. 75A-35
HEADQUARTERS, ARMY AND AIR FORCE EXCHANGE SERVICE, OHIO VALLEY
EXCHANGE REGION, ASSISTANT SECRETARY CASE NO. 50-11136 (CA). THE
ASSISTANT SECRETARY, IN AGREEMENT WITH THE ASSISTANT REGIONAL DIRECTOR,
FOUND THAT THERE WAS INSUFFICIENT EVIDENCE TO ESTABLISH A REASONABLE
BASIS FOR THE COMPLAINT FILED BY THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, WHICH ALLEGED THAT THE ACTIVITY VIOLATED SECTION
19(A)(1) AND (6) OF THE ORDER BY ITS REFUSAL TO SIGN A PREVIOUSLY
NEGOTIATED AGREEMENT BECAUSE A DECERTIFICATION PETITION HAD BEEN FILED
BY UNIT EMPLOYEES IN THE PERIOD BETWEEN "FINAL NEGOTIATIONS" AND FORMAL
EXECUTION OF THE CONTRACT. THE UNION APPEALED TO THE COUNCIL,
CONTENDING THAT THE ASSISTANT SECRETARY'S DECISION IS ARBITRARY AND
CAPRICIOUS AND RAISES MAJOR POLICY ISSUES.
COUNCIL ACTION (AUGUST 14, 1975). THE COUNCIL HELD THAT THE
ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY AND CAPRICIOUS
AND DOES NOT PRESENT A MAJOR POLICY ISSUE. THEREFORE, SINCE THE UNION'S
APPEAL FAILED TO MEET THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION
2411.12 OF THE COUNCIL'S RULES (5 CFR 2411.12), THE COUNCIL DENIED
REVIEW OF THE APPEAL.
DEAR MR. ROSA:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION, AND THE OPPOSITION THERETO FILED BY THE
AGENCY, IN THE ABOVE-ENTITLED CASE.
IN YOUR COMPLAINT YOU ALLEGED THAT THE ARMY AND AIR FORCE EXCHANGE
SERVICE, OHIO VALLEY EXCHANGE REGION, CHARLESTOWN, INDIANA (THE
ACTIVITY) VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY ITS REFUSAL
TO SIGN A PREVIOUSLY NEGOTIATED AGREEMENT BECAUSE A DECERTIFICATION
PETITION HAD BEEN FILED BY UNIT EMPLOYEES IN THE PERIOD BETWEEN "FINAL
NEGOTIATIONS" AND FORMAL EXECUTION OF THE CONTRACT. IN AGREEMENT WITH
THE ASSISTANT REGIONAL DIRECTOR (ARD), THE ASSISTANT SECRETARY FOUND
THAT THERE WAS INSUFFICIENT EVIDENCE TO ESTABLISH A REASONABLE BASIS FOR
THE COMPLAINT, INASMUCH AS AFGE HAD PRESENTED NO EVIDENCE THAT THE
AGREEMENT "WAS SIGNED, OR WAS REQUESTED TO BE SIGNED, PRIOR TO THE
FILING OF THE DECERTIFICATION PETITION," OR THAT THE ACTIVITY "REFUSED
TO SIGN THE AGREEMENT PRIOR TO THE FILING OF SUCH PETITION." RATHER,
AFGE MERELY ALLEGED THAT AN INITIALLED COPY OF THE AGREEMENT EXISTED
WHICH IT WOULD PRESENT AT A LATER DATE, WHICH THE ASSISTANT SECRETARY
FOUND DID NOT SATISFY THE BURDEN OF PROOF IMPOSED UPON COMPLAINANTS BY
SECTION 203.5(C) OF HIS REGULATIONS. THE ASSISTANT SECRETARY CONCLUDED,
THEREFORE, THAT THE ACTIVITY WAS NOT OBLIGATED TO COMPLY WITH THE
UNION'S REQUEST TO SIGN THE AGREEMENT DURING THE PENDENCY OF THE
DECERTIFICATION PETITION. NOTING ALSO THAT THE NEGOTIATED AGREEMENT WAS
NOT RATIFIED BY THE LOCAL UNION MEMBERSHIP UNTIL AFTER THE FILING OF THE
DECERTIFICATION PETITION, THE ASSISTANT SECRETARY DENIED THE REQUEST FOR
REVERSAL OF THE ARD'S DISMISSAL OF THE COMPLAINT.
IN YOUR PETITION FOR REVIEW, YOU CONTEND THAT THE ASSISTANT
SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS AND RAISES MAJOR POLICY
ISSUES, BECAUSE: (1) IT IS BASED UPON A MISUNDERSTANDING OF THE FACTS
AND EVIDENCE; AND (2) IT IS BASED UPON IMPROPERLY CONSIDERED
"EVIDENCE," AND THE ASSISTANT SECRETARY'S DECISION NOTES MATTERS NOT
RELEVANT TO THE CASE. YOU FURTHER ALLEGE THAT ADDITIONAL MAJOR POLICY
ISSUES ARE PRESENTED IN THAT: (1) THE ASSISTANT SECRETARY IMPROPERLY
DISMISSED AFGE'S COMPLAINT ON THE GROUNDS THAT A REASONABLE BASIS FOR
THE COMPLAINT HAD NOT BEEN ESTABLISHED, SINCE IT IS SUFFICIENT FOR A
CLAIMANT AT THE INVESTIGATIONAL STAGE OF AN UNFAIR LABOR PRACTICE
PROCEEDING TO ALLEGE FACTS WHICH, IF PROVED AT A HEARING, WOULD ENTITLE
THE CLAIMANT TO RELIEF; AND (2) THE ASSISTANT SECRETARY DEVIATED FROM
ESTABLISHED PRIVATE SECTOR LAW RELATING TO MANAGEMENT'S DUTY TO EXECUTE
A CONTRACT PREVIOUSLY AGREED UPON BY THE PARTIES, AND DEVIATED FROM
ESTABLISHED PUBLIC AND PRIVATE SECTOR LAW RELATING TO THE EFFECT OF A
DECERTIFICATION PETITION UPON MANAGEMENT'S DUTY TO EXECUTE A CONTRACT
PREVIOUSLY REACHED BY THE PARTIES.
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW OF THE ASSISTANT
SECRETARY'S DECISION DOES NOT MEET THE REQUIREMENTS OF SECTION 2411.12
OF THE COUNCIL'S RULES; THAT IS, HIS FINDINGS AND DECISION DO NOT
APPEAR IN ANY MANNER ARBITRARY AND CAPRICIOUS, NOR DO THEY PRESENT A
MAJOR POLICY ISSUE.
YOU ALLEGE THAT THE ASSISTANT SECRETARY'S DECISION PRESENTS MAJOR
POLICY ISSUES CONCERNING A CLAIMANT'S BURDEN OF PROOF AT THE
INVESTIGATIONAL STAGE OF AN UNFAIR LABOR PRACTICE PROCEEDING, AND
CONCERNING EVIDENCE CONSIDERED AND RELIED UPON BY THE ASSISTANT
SECRETARY HEREIN. THE ASSISTANT SECRETARY, PURSUANT TO HIS AUTHORITY
UNDER SECTION 6(D) OF THE ORDER TO PRESCRIBE REGULATIONS NEEDED TO
ADMINISTER HIS FUNCTIONS UNDER THE ORDER, HAS PROVIDED IN SECTION
203.7(A) OF HIS REGULATIONS (REDESIGNATED SECTION 203.8(A) AS OF MAY 7,
1975):
IF THE ASSISTANT REGIONAL DIRECTOR DETERMINES THAT . . . A REASONABLE
BASIS FOR THE COMPLAINT
HAS NOT BEEN ESTABLISHED . . . HE MAY DISMISS THE COMPLAINT.
FURTHER, SECTION 203.5(C) (REDESIGNATED SECTION 203.6(E) AS OF MAY 7,
1975) STATES:
THE COMPLAINANT SHALL BEAR THE BURDEN OF PROOF AT ALL STAGES OF THE
PROCEEDINGS, REGARDING
MATTERS ALLEGED IN ITS COMPLAINT . . .
AS THE COUNCIL PREVIOUSLY NOTED IN DEPARTMENT OF THE ARMY, INDIANA
ARMY AMMUNITION PLANT, CHARLESTOWN, INDIANA, FLRC NO. 74A-90 (MAY 9,
1975), REPORT NO. 69, THE FOREGOING REGULATIONS WERE PROMULGATED BY THE
ASSISTANT SECRETARY PURSUANT TO THE ORDER AND CONSISTENT WITH THE STUDY
COMMITTEE REPORT AND RECOMMENDATIONS, WHICH PROVIDES THAT "(I)F THE
ASSISTANT SECRETARY FINDS THAT . . . A REASONABLE BASIS FOR THE
COMPLAINT HAS NOT BEEN ESTABLISHED, HE MAY DISMISS THE COMPLAINT." HIS
DECISION IN YOUR CASE WAS BASED ON THE APPLICATION OF THESE REGULATIONS,
AND YOUR PETITION PRESENTS NO PERSUASIVE REASONS TO SHOW THAT THE
ASSISTANT SECRETARY WAS WITHOUT AUTHORITY TO ESTABLISH SUCH A REGULATORY
REQUIREMENT OR THAT HE WRONGLY APPLIED THESE REGULATIONS TO THE FACTS
AND CIRCUMSTANCES OF THIS CASE.
WITH RESPECT TO YOUR CONTENTION THAT THE ASSISTANT SECRETARY'S
DECISION PRESENTS MAJOR POLICY ISSUES IN THAT IT DEVIATES FROM
ESTABLISHED PRIVATE AND PUBLIC SECTOR LAW RELATING TO MANAGEMENT'S DUTY
TO EXECUTE A CONTRACT PREVIOUSLY AGREED UPON BY THE PARTIES,
NOTWITHSTANDING THE EXISTENCE OF A DECERTIFICATION PETITION RAISING A
VALID QUESTION CONCERNING REPRESENTATION, THE COUNCIL IS OF THE OPINION
THAT NO MAJOR POLICY ISSUE EXISTS WARRANTING REVIEW, NOTING PARTICULARLY
THAT THE DECISION OF THE ASSISTANT SECRETARY DOES NOT APPEAR TO BE
INCONSISTENT WITH APPLICABLE PRECEDENT. SEE HEADQUARTERS, U.S. ARMY
AVIATION SYSTEMS COMMAND, FLRC NO. 72A-30 (JULY 25, 1973), REPORT NO.
42.
FINALLY, WITH REGARD TO YOUR CONTENTION THAT THE ASSISTANT
SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS IN THAT IT NOTES
MATTERS NOT RELEVANT TO THE CASE, SPECIFICALLY THAT THE AGREEMENT WAS
NOT RATIFIED BY LOCAL UNION MEMBERSHIP PRIOR TO THE FILING OF THE
DECERTIFICATION PETITION, IN THE COUNCIL'S VIEW THE ASSISTANT SECRETARY
MERELY NOTED THIS FACT WITHOUT RELYING ON IT IN REACHING HIS DECISION,
AND THEREFORE WE NEED NOT CONSIDER WHETHER IT WOULD HAVE BEEN PROPER FOR
HIM TO HAVE DONE SO. ACCORDINGLY, NO BASIS FOR REVIEW IS PRESENTED BY
THIS CONTENTION.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS AND DOES NOT PRESENT ANY MAJOR POLICY ISSUES, YOUR APPEAL
FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED UNDER SECTION
2411.12 OF THE COUNCIL'S RULES OF PROCEDURE. ACCORDINGLY, REVIEW OF
YOUR APPEAL IS HEREBY DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
W. C. VALDES
DEPT. OF DEFENSE
3 FLRC 508; FLRC NO. 74A-85; AUGUST 14, 1975.
MR. STEPHEN L. WHITEHEAD, PRESIDENT
TIDEWATER VIRGINIA FEDERAL EMPLOYEES
METAL TRADES COUNCIL, AFL-CIO
BUILDING 234, NORFOLK NAVAL SHIPYARD
PORTSMOUTH, VIRGINIA 23709
(SYNOPSIS) FLRC NO. 74A-85
NORFOLK NAVAL SHIPYARD AND TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL
TRADES COUNCIL, AFL-CIO (STRONGIN, ARBITRATOR). THE ARBITRATOR DENIED
THE UNION'S GRIEVANCE BASED ON A DETERMINATION THAT THE PARTIES'
AGREEMENT HAD EXPIRED AT THE TIME OF THE ALLEGED VIOLATION BY THE
SHIPYARD. THE UNION FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD WITH THE
COUNCIL ALLEGING THAT (1) THE ARBITRATOR, IN EFFECT, BASED HIS AWARD ON
A MEMORANDUM OF UNDERSTANDING BETWEEN THE PARTIES WHICH VIOLATED SECTION
13(E) OF THE ORDER; (2) IN EFFECT, THE ARBITRATOR MADE FINDINGS OF FACT
NOT SUPPORTED BY THE RECORD; AND (4) IN EFFECT, THE ARBITRATOR FAILED
TO FIND THAT AN UNFAIR LABOR PRACTICE HAD BEEN COMMITTED BY THE
SHIPYARD.
COUNCIL ACTION (AUGUST 14, 1975). AS TO (1), THE COUNCIL HELD THAT
THIS EXCEPTION PROVIDES NO BASIS FOR ACCEPTANCE OF THE PETITION UNDER
SECTION 2411.32 OF THE COUNCIL'S RULES (5 CFR 2411.32), AND, MOREOVER,
THAT THERE IS A FUNDAMENTAL INCONSISTENCY BETWEEN THIS EXCEPTION AND THE
UNION'S BASIC POSITION THAT THE AGREEMENT HAD BEEN PROPERLY RENEWED FOR
A 2-YEAR PERIOD. AS TO (2), (3) AND (4), THE COUNCIL HELD THAT THESE
EXCEPTIONS DID NOT ASSERT A GROUND UPON WHICH THE COUNCIL WILL GRANT A
PETITION FOR REVIEW OF AN ARBITRATION AWARD UNDER ITS RULES.
ACCORDINGLY, THE COUNCIL DENIED REVIEW OF THE UNION'S PETITION BECAUSE
IT FAILED TO MEET THE REQUIREMENTS FOR REVIEW AS SET FORTH IN SECTION
2411.32 OF THE COUNCIL'S RULES OF PROCEDURE (5 CFR 2411.32).
DEAR MR. WHITEHEAD:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ARBITRATOR'S AWARD FILED IN THE ABOVE-ENTITLED CASE, AND THE AGENCY'S
OPPOSITION THERETO.
AS STATED IN THE AWARD, THE SHIPYARD AND THE UNION ENTERED INTO A
COLLECTIVE BARGAINING AGREEMENT FOR A 2-YEAR PERIOD FROM OCTOBER 1,
1971, WITH RENEWAL AND TERMINATION SUBJECT TO THE PROVISIONS OF ARTICLE
XXVII, SECTION 1 OF THE AGREEMENT. /1/ ON AUGUST 20, 1973, THE UNION
GAVE APPROPRIATE AND TIMELY NOTICE OF ITS DESIRE TO RENEW THE AGREEMENT.
THE PARTIES THEREAFTER EXTENDED THE AGREEMENT UNTIL DECEMBER 31, 1973,
BY A MEMORANDUM OF UNDERSTANDING OF SEPTEMBER 17, 1973. /2/ A DISPUTE
AROSE WHEN, AFTER DECEMBER 31, 1973, THE SHIPYARD, TAKING THE POSITION
THAT THE AGREEMENT HAD TERMINATED, INSTITUTED A CHANGE IN THE HOURS OF
WORK. THE UNION ADHERED TO THE POSITION PREVIOUSLY TAKEN THAT THE
AGREEMENT WAS STILL IN EFFECT BECAUSE IT HAD BEEN AUTOMATICALLY EXTENDED
FOR 2 YEARS. THE DISPUTE ULTIMATELY WENT TO ARBITRATION WITHOUT A
WAIVER BY THE AGENCY OF ITS POSITION THAT THE AGREEMENT, INCLUDING ITS
ARBITRATION PROVISIONS, HAD EXPIRED.
THE ARBITRATOR FORMULATED THE BASIC ISSUE SUBMITTED TO ARBITRATION AS
WHETHER THE OCTOBER 1, 1971, AGREEMENT "HAD EXPIRED (AS THE SHIPYARD
CONTENDS) OR HAD BEEN RENEWED AND WAS IN EFFECT (AS THE UNION CONTENDS)
IN JANUARY, 1974 WHEN THE SHIPYARD CHANGED THE WORK HOURS OF THE . . .
UNIT, IN CONTRAVENTION OF THE AGREEMENT, IF IT WAS STILL IN EXISTENCE."
THE ARBITRATOR IN HIS DECISION STATED THAT SECTION 1 OF ARTICLE XXVII
OF THE AGREEMENT "CONTAINS CERTAIN OBVIOUS AMBIGUITIES WHICH HAVE
CONTRIBUTED TO, IF INDEED THEY HAVE NOT CAUSED" THE DISPUTE BEFORE HIM.
AFTER REVIEWING THE BARGAINING HISTORY OF SECTION 1, THE ARBITRATOR
CONCLUDED THAT THE PARTIES HAD "DELIBERATELY REJECTED AN AUTOMATIC
ANNUAL RENEWAL IN THE ABSENCE OF TIMELY NOTICE, AND SUBSTITUTED A
PROVISION CALLING FOR REPEATED TWO-YEAR TERMS IF, BUT ONLY IF, THE
PARTIES REEXECUTED THE AGREEMENT." THE ARBITRATOR DETERMINED THAT THE
AGREEMENT, "NOT HAVING BEEN REEXECUTED OR FURTHER EXTENDED, EXPIRED
AFTER THE EXTENSION TO DECEMBER 31. CONSEQUENTLY, ARTICLE XII OF THE
AGREEMENT SPECIFYING HOURS OF WORK WAS NOT IN EFFECT, AND HENCE WAS NOT
VIOLATED WHEN THE SHIPYARD CHANGED THE HOURS OF WORK IN JANUARY, 1974."
ACCORDINGLY, THE ARBITRATOR DENIED THE GRIEVANCE.
THE UNION REQUESTS THAT THE COUNCIL ACCEPT ITS PETITION FOR REVIEW OF
THE ARBITRATOR'S AWARD. IN ITS PETITION FOR REVIEW, THE UNION APPEARS
TO ADVANCE FOUR EXCEPTIONS TO THE AWARD.
UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE, REVIEW OF
AN ARBITRATION AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON
THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE
EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES
APPLICABLE LAW, APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS
SIMILAR TO THOSE UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE
SUSTAINED BY COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS."
ONE OF THE UNION'S EXCEPTIONS CONTENDS THAT THE ARBITRATOR, IN
EFFECT, BASED HIS AWARD ON A MEMORANDUM OF UNDERSTANDING WHICH VIOLATED
SECTION 13(E) OF THE ORDER. /3/ THE UNION ASSERTS THAT THE MEMORANDUM
OF UNDERSTANDING EXTENDED FOR 90 DAYS THE PROVISIONS OF THE AGREEMENT
AND, NOTWITHSTANDING SECTION 13(A) OF THE ORDER, /4/ LEFT INTACT THE
OPTIONAL GRIEVANCE PROCEDURE SPECIFIED IN ARTICLE XXVI, SECTION 7 OF THE
AGREEMENT. /5/ THE COUNCIL WILL GRANT REVIEW OF AN ARBITRATION AWARD
WHERE IT APPEARS, BASED UPON THE FACTS AND CIRCUMSTANCES DESCRIBED IN
THE PETITION, THAT THE AWARD VIOLATES THE ORDER. HOWEVER, THE UNION HAS
SHOWN NO NEXUS BETWEEN THE ALLEGEDLY ILLEGAL PROVISION IN THE AGREEMENT
AND THE AWARD. THAT IS TO SAY, THERE IS NO INDICATION THAT THE AWARD
GIVES EFFECT TO THE ALLEGED NONCONFORMING PROVISION. THEREFORE, THIS
EXCEPTION PROVIDES NO BASIS FOR ACCEPTANCE OF YOUR PETITION UNDER
SECTION 2411.32 OF THE COUNCIL'S RULES. MOREOVER, THERE IS A
FUNDAMENTAL INCONSISTENCY BETWEEN THIS EXCEPTION AND THE UNION'S BASIC
POSITION THAT THE AGREEMENT HAD BEEN PROPERLY RENEWED FOR A 2-YEAR
PERIOD. IN ASSERTING THAT THE ARBITRATOR BASED HIS AWARD ON A
MEMORANDUM OF UNDERSTANDING WHICH, IN EFFECT, EXTENDED FOR 90 DAYS AN
AGREEMENT WHICH CONTAINED AN OPTIONAL GRIEVANCE PROCEDURE ALLEGEDLY IN
VIOLATION OF THE ORDER, THE UNION IS TAKING THE POSITION THAT THE
EXTENSION WAS IMPROPER. YET THIS IS DIRECTLY CONTRARY TO THE UNION'S
UNDERLYING POSITION THAT THE AGREEMENT HAD BEEN PROPERLY EXTENDED AND
REMAINED VALID FOR 2 YEARS AFTER THE ORIGINAL TERMINATION DATE. THUS,
THE UNION IS CONTENDING, IN EFFECT, THAT A 90-DAY EXTENSION OF THE
AGREEMENT WAS ILLEGAL, BUT THAT A 2-YEAR EXTENSION OF THAT SAME
AGREEMENT WAS LEGAL.
AS A SECOND EXCEPTION THE UNION CONTENDS, IN EFFECT, THAT THE
ARBITRATOR, IN DETERMINING THAT THE AGREEMENT EXPIRED, ERRONEOUSLY
INTERPRETED THE AGREEMENT. HOWEVER, THE COUNCIL WAS HELD THAT THE
INTERPRETATION OF CONTRACT PROVISIONS IS A MATTER TO BE LEFT TO THE
ARBITRATOR'S JUDGMENT. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 12 AND U.S. DEPARTMENT OF LABOR (DALY, ARBITRATOR), FLRC NO.
72A-55 (SEPTEMBER 17, 1973), REPORT NO. 44. THEREFORE, THIS EXCEPTION
DOES NOT ASSERT A GROUND UPON WHICH THE COUNCIL WILL GRANT A PETITION
FOR REVIEW OF AN ARBITRATION AWARD UNDER ITS RULES.
AS A THIRD EXCEPTION, THE UNION CONTENDS THAT THE ARBITRATOR MADE
FINDINGS OF FACT NOT SUPPORTED BY THE RECORD. HOWEVER, THE COUNCIL HAS
CONSISTENTLY APPLIED THE PRINCIPLE THAT AN ARBITRATOR'S FINDINGS AS TO
THE FACTS ARE NOT TO BE QUESTIONED ON APPEAL. LOCAL 1164, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND BUREAU OF DISTRICT
OFFICE OPERATIONS, BOSTON REGION, SOCIAL SECURITY ADMINISTRATION
(SANTER, ARBITRATOR), FLRC NO. 74A-49 (DECEMBER 20, 1974), REPORT NO.
61. THUS, THIS EXCEPTION DOES NOT ASSERT A GROUND UPON WHICH THE
COUNCIL WILL GRANT A PETITION FOR REVIEW OF AN ARBITRATION AWARD UNDER
ITS RULES.
AS A FOURTH EXCEPTION THE UNION CONTENDS, IN EFFECT, THAT THE
ARBITRATOR, ALTHOUGH RECOGNIZING THAT THE SHIPYARD MISLED THE UNION ON
MATTERS TO BE NEGOTIATED, FAILED TO FIND THAT THE SHIPYARD ENGAGED IN
BAD FAITH CONSULTATION IN VIOLATION OF SECTION 11(A) OF THE ORDER /6/
AND, THEREFORE, THE AWARD VIOLATES THE ORDER. THIS CONTENTION IN
ESSENCE ALLEGES THAT THE ARBITRATOR FAILED TO FIND THAT AN UNFAIR LABOR
PRACTICE HAD BEEN COMMITTED. HOWEVER, A CONTENTION THAT AN ARBITRATOR
HAS FAILED TO DECIDE, DURING THE COURSE OF A GRIEVANCE ARBITRATION
HEARING, WHETHER AN UNFAIR LABOR PRACTICE HAS BEEN COMMITTED UNDER
SECTION 19 OF THE ORDER DOES NOT STATE A GROUND UPON WHICH THE COUNCIL
WILL ACCEPT A PETITION FOR REVIEW OF AN ARBITRATION AWARD. /7/
ACCORDINGLY, THE UNION'S PETITION IS DENIED BECAUSE IT FAILS TO MEET
THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.32 OF THE
COUNCIL'S RULES OF PROCEDURE.
BY THE COUNCIL.
CC: A. DE PASQUALE
NAVY
/1/ ACCORDING TO THE ARBITRATOR'S AWARD, ARTICLE XXVII, SECTION 1, OF
THE AGREEMENT PROVIDES:
THIS AGREEMENT SHALL BE BINDING UPON THE EMPLOYER AND THE COUNCIL FOR
A PERIOD OF TWO (2)
YEARS FROM THE DATE OF APPROVAL BY THE OFFICE OF CIVILIAN MANPOWER
MANAGEMENT UNLESS EITHER
PARTY SHALL NOTIFY THE OTHER PARTY IN WRITING AT LEAST SIXTY (60)
CALENDAR DAYS BUT NOT MORE
THAN NINETY (90) CALENDAR DAYS PRIOR TO SUCH DATE OR TO ANY
SUBSEQUENT ANNIVERSARY DATE OF ITS
DESIRE TO TERMINATE THIS AGREEMENT. IF EITHER PARTY GIVES NOTICE AS
AFORESAID TO THE OTHER
PARTY, THEN WITHIN THIRTY DAYS FROM RECEIPT OF SAID NOTICE,
REPRESENTATIVES OF THE EMPLOYER
AND THE COUNCIL SHALL MEET AND CONSULT AS TO FURTHER NEGOTIATIONS OR
OTHER COURSES OF
ACTION. IT IS FURTHER PROVIDED THAT THIS AGREEMENT SHALL
AUTOMATICALLY TERMINATE AT ANY TIME
IT IS DETERMINED BY THE APPROPRIATE AUTHORITY UNDER THE STANDARDS OF
CONDUCT AND CODE OF FAIR
LABOR PRACTICES THAT THE COUNCIL IS NO LONGER ENTITLED TO EXCLUSIVE
RECOGNITION UNDER
EXECUTIVE ORDER 11491. THIS AGREEMENT MAY BE AUTOMATICALLY RENEWED
FOR PERIODS OF TWO (2)
YEARS PROVIDED THAT THE AGREEMENT IS BROUGHT INTO CONFORMANCE WITH
PUBLISHED POLICIES AND
REGULATIONS, IS REEXECUTED BY THE PARTIES, AND APPROVED BY THE OFFICE
OF CIVILIAN MANPOWER
MANAGEMENT.
/2/ ACCORDING TO THE ARBITRATOR'S AWARD, THE SEPTEMBER 17, 1973,
MEMORANDUM OF UNDERSTANDING PROVIDES, IN PERTINENT PART:
IT IS AGREED AND UNDERSTOOD BETWEEN THE PARTIES THAT THE PROVISIONS
OF THE NEGOTIATED
AGREEMENT . . . INITIALLY APPROVED ON 1 OCTOBER 1971 WILL REMAIN IN
FULL FORCE AND EFFECT
UNTIL 31 DECEMBER UNLESS TERMINATED EARLIER BY THE APPROVAL OF A NEW
AGREEMENT . . . (AND)
. . . THAT FURTHER CONTINUATION OF THE AGREEMENT WILL BE MADE IF IT
IS MUTUALLY AGREED THAT
NEGOTIATIONS ARE PROCEEDING SATISFACTORILY.
/3/ SECTION 13(E) OF THE ORDER, IN EFFECT AT THE TIME THE UNION FILED
ITS PETITION FOR REVIEW, STATED IN PERTINENT PART:
NO AGREEMENT MAY BE ESTABLISHED, EXTENDED OR RENEWED AFTER THE
EFFECTIVE DATE OF THIS ORDER
WHICH DOES NOT CONFORM TO THIS SECTION . . .
SECTION 13(E) WAS REVOKED BY E.O. 11838. HOWEVER, IN VIEW OF THE
COUNCIL'S DISPOSITION OF THE CASE, THERE IS NO NEED TO DETERMINE THE
EFFECT OF THE SECTION'S REVOCATION ON THIS CASE.
/4/ SECTION 13(A) OF THE ORDER, IN EFFECT AT THE TIME THE UNION FILED
ITS PETITION FOR REVIEW, STATED IN PERTINENT PART:
. . . A NEGOTIATED GRIEVANCE PROCEDURE . . . SHALL BE THE EXCLUSIVE
PROCEDURE AVAILABLE TO
THE PARTIES AND THE EMPLOYEES IN THE UNIT FOR RESOLVING SUCH
GRIEVANCES.
WHILE THE SUBJECT AWARD OF THE ARBITRATOR WAS MADE PRIOR TO THE
ISSUANCE OF E.O. 11838, SECTION 13(A) OF THE ORDER WAS NOT CHANGED BY
E.O. 11838 IN RESPECTS WHICH ARE MATERIAL IN THE PRESENT CASE.
/5/ ACCORDING TO THE UNION'S PETITION, SECTION 7 OF ARTICLE XXVI
(GRIEVANCE PROCEDURE) OF THE AGREEMENT STATES:
THE EMPLOYEE MUST STATE IN HIS WRITTEN APPEAL HIS IRREVOCABLE CHOICE
OF EITHER THE SHIPYARD
GRIEVANCE PROCEDURE OR THE NEGOTIATED GRIEVANCE PROCEDURE CONTAINED
IN THIS ARTICLE.
/6/ SECTION 11(A) OF THE ORDER STATES IN PERTINENT PART:
AN AGENCY AND A LABOR ORGANIZATION THAT HAS BEEN ACCORDED EXCLUSIVE
RECOGNITION, THROUGH
APPROPRIATE REPRESENTATIVES, SHALL MEET AT REASONABLE TIMES AND
CONFER IN GOOD FAITH WITH
RESPECT TO PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING
WORKING CONDITIONS . . .
/7/ SECTION 6(A)(4) OF THE ORDER PROVIDES:
THE ASSISTANT SECRETARY SHALL DECIDE UNFAIR LABOR PRACTICE COMPLAINTS
. . .
SECTION 19(D) OF THE ORDER STATES IN PERTINENT PART:
ALL COMPLAINTS UNDER THIS SECTION (SEC. 19, UNFAIR LABOR PRACTICES.)
THAT CANNOT BE
RESOLVED BY THE PARTIES SHALL BE FILED WITH THE ASSISTANT SECRETARY.
SEE OFFICE OF ECONOMIC OPPORTUNITY AND AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES LOCAL 2677 (MATTHEWS, ARBITRATOR), FLRC NO. 74A-76
(JUNE 26, 1975), REPORT NO. 76.
3 FLRC 501; FLRC NO. 74A-41; AUGUST 13, 1975.
DEFENSE SUPPLY AGENCY, DEFENSE
CONTRACT ADMINISTRATION SERVICES
REGION (DCASR), CLEVELAND, OHIO,
DEFENSE CONTRACT ADMINISTRATION
SERVICES OFFICES (DCASO'S),
AKRON, OHIO, AND COLUMBUS, OHIO
AND
LOCAL 3426, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO
AND
LOCAL 73, NATIONAL FEDERATION
OF FEDERAL EMPLOYEES
(SYNOPSIS) FLRC NO. 74A-41
DEFENSE SUPPLY AGENCY, DEFENSE CONTRACT ADMINISTRATION SERVICES
REGION (DCASR), CLEVELAND, OHIO, DEFENSE CONTRACT ADMINISTRATION
SERVICES OFFICES (DCASO'S), AKRON, OHIO, AND COLUMBUS, OHIO, A/SLMR NO.
372. THIS APPEAL AROSE FROM A DECISION AND DIRECTION OF ELECTIONS OF
THE ASSISTANT SECRETARY FINDING APPROPRIATE, AND DIRECTING ELECTIONS IN,
TWO UNITS IN THE CLEVELAND, OHIO, DEFENSE CONTRACT ADMINISTRATION
SERVICES REGION (DCASR), WHEREIN THE UNIONS HERE INVOLVED-- LOCAL 3426,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND LOCAL 73,
NATIONAL FEDERATION OF FEDERAL EMPLOYEES-- HAD FILED SEPARATE PETITIONS
FOR RECOGNITION. UPON APPEAL BY THE AGENCY, THE COUNCIL DETERMINED THAT
A MAJOR POLICY ISSUE WAS PRESENTED BY THE DECISION OF THE ASSISTANT
SECRETARY, NAMELY: WHETHER THE ASSISTANT SECRETARY CORRECTLY
INTERPRETED THE COUNCIL'S DECISION IN MERCHANT MARINE (FLRC NO. 71A-15,
REPORT NO. 30) TO REQUIRE THAT "WHERE CERTAIN LABOR RELATIONS AND
PERSONNEL POLICIES ARE ESTABLISHED BY THE DCASR HEADQUARTERS . . . IT IS
THE OBLIGATION OF THE DCASR TO PROVIDE REPRESENTATIVES WITH RESPECT TO
THE UNITS FOUND APPROPRIATE (IN THIS CASE) 'WHO ARE EMPOWERED TO
NEGOTIATE AND ENTER INTO AN AGREEMENT ON ALL MATTERS WITHIN THE SCOPE OF
NEGOTIATIONS IN THE BARGAINING UNIT.'" (REPORT NO. 60))
COUNCIL ACTION (AUGUST 13, 1975). THE COUNCIL CONCLUDED THAT THE
ASSISTANT SECRETARY MISINTERPRETED AND MISAPPLIED THE MERCHANT MARINE
DECISION. ACCORDINGLY, SINCE THE ASSISTANT SECRETARY RELIED IN PART ON
AN ERRONEOUS INTERPRETATION AND APPLICATION OF MERCHANT MARINE IN
FINDING THE SEPARATE UNITS APPROPRIATE IN THE PRESENT CASE, THE COUNCIL,
PURSUANT TO SECTION 2411.17(B) OF ITS RULES AND REGULATIONS (5 CFR
2411.12(B)), SET ASIDE THE ASSISTANT SECRETARY'S DECISION AND REMANDED
THE CASE TO HIM FOR RECONSIDERATION AND DISPOSITION CONSISTENT WITH THE
PRINCIPLES DISCUSSED IN THE COUNCIL'S OPINION.
THIS APPEAL AROSE FROM A DECISION AND DIRECTION OF ELECTIONS OF THE
ASSISTANT SECRETARY FINDING APPROPRIATE, AND DIRECTING ELECTIONS IN, TWO
UNITS IN THE CLEVELAND, OHIO, DEFENSE CONTRACT ADMINISTRATION SERVICES
REGION (DCASR).
THE CLEVELAND DCASR, A PRIMARY LEVEL FIELD ACTIVITY OF THE DEFENSE
SUPPLY AGENCY, CONSISTS, IN PART, OF SEVERAL SUBORDINATE DEFENSE
CONTRACT ADMINISTRATION SERVICES OFFICES (DCASO'S) THROUGHOUT OHIO. IN
TWO OF THE DCASO'S THE UNIONS HERE INVOLVED FILED SEPARATE PETITIONS FOR
RECOGNITION: LOCAL 3426, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
(AFGE), SEEKING AN OFFICEWIDE UNIT IN THE AKRON DCASO, AND LOCAL 73,
NATIONAL FEDERATION OF FEDERAL EMPLOYEES (NFFE), SEEKING A SIMILAR UNIT
IN THE COLUMBUS DCASO. BOTH THE AKRON AND COLUMBUS DCASO'S CONTENDED,
IN OPPOSITION TO THE PETITIONS, THAT ONLY A SINGLE, DCASR-WIDE UNIT
WOULD BE APPROPRIATE.
THE ASSISTANT SECRETARY DETERMINED THAT EACH OF THE TWO UNITS SOUGHT
BY THE UNIONS WAS APPROPRIATE FOR THE PURPOSES OF EXCLUSIVE RECOGNITION
UNDER THE ORDER. IN REACHING THIS DETERMINATION, THE ASSISTANT
SECRETARY CONCLUDED THAT THE EMPLOYEES IN EACH UNIT SHARED A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM OTHER
EMPLOYEES OF THE DCASR, CLEVELAND, AND THAT THE UNITS SOUGHT WOULD
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
WITH SPECIAL REGARD TO EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS, THE ASSISTANT SECRETARY NOTED THAT THERE WERE CURRENTLY FOUR
EXCLUSIVE UNITS WITHIN DCASR, CLEVELAND, TWO OF WHICH WERE THEN COVERED
BY A NEGOTIATED AGREEMENT. FURTHER, HE REJECTED AN AGENCY ARGUMENT THAT
CERTIFICATION OF LESS THAN A REGIONWIDE UNIT WOULD LIMIT THE SCOPE OF
NEGOTIATION SOLELY TO THOSE MATTERS WITHIN THE DELEGATED DISCRETIONARY
AUTHORITY OF THE PARTICULAR CHIEF OF THE PARTICULAR INDIVIDUAL
SUBORDINATE UNIT INVOLVED. IN THE LATTER CONNECTION, THE ASSISTANT
SECRETARY REASONED:
AS STATED BY THE FEDERAL LABOR RELATIONS COUNCIL (COUNCIL) IN UNITED
FEDERATION OF COLLEGE
TEACHERS, LOCAL 1460 AND U.S. MERCHANT MARINE ACADEMY, FLRC NO.
71A-15 ((NOVEMBER 20, 1972),
REPORT NO. 30), "CLEARLY, THE ORDER REQUIRES THE PARTIES TO PROVIDE
REPRESENTATIVES WHO ARE
EMPOWERED TO NEGOTIATE AND TO ENTER INTO AGREEMENTS ON ALL MATTERS
WITHIN THE SCOPE OF
NEGOTIATIONS IN THE BARGAINING UNIT." APPLYING THE COUNCIL'S
RATIONALE TO THE INSTANT
SITUATION, WHERE CERTAIN LABOR RELATIONS AND PERSONNEL POLICIES ARE
ESTABLISHED BY THE DCASR
HEADQUARTERS, IN MY VIEW, IT IS THE OBLIGATION OF THE DCASR TO
PROVIDE REPRESENTATIVES WITH
RESPECT TO THE UNITS FOUND APPROPRIATE HEREIN "WHO ARE EMPOWERED TO
NEGOTIATE AND ENTER INTO
AGREEMENTS ON ALL MATTERS WITHIN THE SCOPE OF NEGOTIATIONS IN THE
BARGAINING UNIT."
FOLLOWING THE ASSISTANT SECRETARY'S DECISION, ELECTIONS WERE
CONDUCTED AND CERTIFICATIONS ISSUED. THEREAFTER, THE ASSISTANT
SECRETARY'S DECISION WAS APPEALED TO THE COUNCIL BY THE DEFENSE SUPPLY
AGENCY (DSA) AND THE DEPARTMENT OF DEFENSE. UPON CONSIDERATION OF THE
PETITION FOR REVIEW, AND THE OPPOSITION FOR REVIEW FILED BY NFFE, THE
COUNCIL DETERMINED THAT A MAJOR POLICY ISSUE WAS PRESENTED BY THE
DECISION OF THE ASSISTANT SECRETARY, NAMELY: WHETHER THE ASSISTANT
SECRETARY CORRECTLY INTERPRETED THE COUNCIL'S DECISION IN MERCHANT
MARINE TO REQUIRE THAT "WHERE CERTAIN LABOR RELATIONS AND PERSONNEL
POLICIES ARE ESTABLISHED BY THE DCASR HEADQUARTERS . . . IT IS THE
OBLIGATION OF THE DCASR TO PROVIDE REPRESENTATIVES WITH RESPECT TO THE
UNITS FOUND APPROPRIATE (IN THIS CASE) 'WHO ARE EMPOWERED TO NEGOTIATE
AND ENTER INTO AN AGREEMENT ON ALL MATTERS WITHIN THE SCOPE OF
NEGOTIATIONS IN THE BARGAINING UNIT.'"
BRIEFS WERE FILED BY DSA, NFFE, AND AFGE. ADDITIONALLY, THE
DEPARTMENT OF TREASURY AND THE DEPARTMENT OF HEALTH, EDUCATION, AND
WELFARE WERE PERMITTED TO FILE BRIEFS AS AMICUS CURIAE.
AS PREVIOUSLY INDICATED, THE ASSISTANT SECRETARY IN CONCLUDING THAT
SEPARATE DCASO UNITS WOULD PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS, RELIED IN PART ON HIS INTERPRETATION OF THE COUNCIL'S
DECISION IN THE MERCHANT MARINE CASE. MORE PARTICULARLY, THE ASSISTANT
SECRETARY INTERPRETED MERCHANT MARINE AS, IN EFFECT, REQUIRING THAT EVEN
WHERE LABOR RELATIONS AND PERSONNEL POLICIES ARE PROPERLY ESTABLISHED ON
MATTERS AT THE HIGHER AGENCY LEVEL OF DCASR HEADQUARTERS, DCASR MUST
NEVERTHELESS PROVIDE REPRESENTATIVES AT THE LOCAL LEVEL TO NEGOTIATE AND
ENTER INTO AGREEMENTS ON THOSE MATTERS, PROVIDED THEY ARE NOT OTHER
EXCLUDED FROM THE SCOPE OF BARGAINING AT THE LOCAL LEVEL. THE QUESTION
ACCEPTED FOR REVIEW IS WHETHER SUCH INTERPRETATION OF MERCHANT MARINE
WAS PROPER.
IN THE MERCHANT MARINE CASE, THE AGENCY CONTENDED THAT THE UNION'S
PROPOSALS ON FACULTY SALARY AT THE MERCHANT MARINE ACADEMY WERE
NONNEGOTIABLE BECAUSE THEY WERE OUTSIDE THE SCOPE OF BARGAINING BY
REASON OF VARIOUS LAWS, OUTSIDE REGULATIONS, AND SUBSTANTIVE AGENCY
DIRECTIVES, AND BECAUSE THEY WERE "OUTSIDE THE DELEGATED BARGAINING
AUTHORITY OF THE SUPERINTENDENT OF THE ACADEMY" UNDER CITED HIGHER LEVEL
AGENCY ISSUANCES. THE COUNCIL RULED FIRST THAT THE PROPOSALS WERE
WITHIN THE SCOPE OF BARGAINING AT THE ACADEMY LEVEL AND THEN REJECTED
THE AGENCY'S CLAIM THAT LIMITATIONS ON THE DELEGATED BARGAINING
AUTHORITY RENDERED THE PROPOSALS NONNEGOTIABLE. THE COUNCIL STATED IN
THE LATTER REGARD (AT P. 7 OF COUNCIL DECISION):
THERE REMAINS FOR CONSIDERATION THE AGENCY'S DETERMINATION THAT THE
UNION'S PROPOSALS ARE
NON-NEGOTIABLE BY VIRTUE OF DEPARTMENT OF COMMERCE ADMINISTRATIVE
ORDERS 202-250 AND
202-711. ACCORDING TO THE AGENCY, COMMERCE'S A.O. 202-711 ASSIGNS TO
THE SUPERINTENDENT OF
THE ACADEMY, AS THE OFFICIAL WHO ACCORDED RECOGNITION TO THE UNION,
THE RESPONSIBILITY FOR
FULFILLING THE BARGAINING OBLIGATION OF THE ORDER IN THE ACADEMY
UNIT. HOWEVER, AUTHORITY TO
ALTER THE FACULTY SALARY PLAN OR SCHEDULE IS RESERVED BY COMMERCE'S
A.O. 202-250 TO THE
DIRECTOR OF PERSONNEL (OR APPROPRIATE MEMBER OF HIS STAFF). THE
AGENCY REASONS THAT THE
EFFECT OF THESE TWO REGULATIONS IS TO BAR NEGOTIATIONS ON THE SALARY
PLAN OR SCHEDULE FOR
ACADEMY FACULTY SINCE THESE MATTERS ARE NOT WITHIN THE
SUPERINTENDENT'S DELEGATED AUTHORITY.
WE DO NOT AGREE. THE OBLIGATION IN SECTION 11(A) OF THE ORDER READS:
AN AGENCY AND A LABOR ORGANIZATION . . . THROUGH APPROPRIATE
REPRESENTATIVES, SHALL MEET
. . . AND CONFER . . .
CLEARLY, THE ORDER REQUIRES THE PARTIES TO PROVIDE REPRESENTATIVES
WHO ARE EMPOWERED TO
NEGOTIATE AND ENTER INTO AGREEMENTS ON ALL MATTERS WITHIN THE SCOPE
OF NEGOTIATIONS IN THE
BARGAINING UNIT. SINCE WE HAVE HELD THAT THE UNION'S PROPOSALS IN
THIS CASE ARE WITHIN THE SCOPE OF NEGOTIATIONS, THEN TO THE EXTENT
COMMERCE'S A.O. 202-711
BARS SUCH NEGOTIATIONS IN THE ACADEMY UNIT, IT IS INCONSISTENT WITH
THE ORDER AND MAY NOT
STAND AS A BAR. AGENCY REGULATIONS, SUCH AS A.O. 202-711, WHICH ARE
ISSUED TO IMPLEMENT THE
ORDER MUST; BE CONSISTENT THEREWITH, AS REQUIRED BY SECTION 23 OF
THE ORDER.
FURTHER, SINCE THE AUTHORITY TO TAKE ACTION ON THE MATTERS COVERED BY
THE UNION'S PROPOSALS
IS RESERVED BY COMMERCE'S A.O. 202-250 TO THE DIRECTOR OF PERSONNEL,
IT IS APPARENT THAT HE
BECOMES THE "APPROPRIATE" OFFICIAL RESPONSIBLE FOR FULFILLING THE
AGENCY'S SECTION 11(A)
OBLIGATION ON THOSE MATTERS.
IN ESSENCE, THE COUNCIL THUS DECIDED IN THE MERCHANT MARINE CASE
THAT, WHERE A MATTER IS FOUND TO BE NEGOTIABLE AT THE LOCAL LEVEL OF
EXCLUSIVE RECOGNITION, THEN THE AGENCY MUST PROVIDE REPRESENTATIVES WHO
ARE EMPOWERED TO NEGOTIATE ON THAT MATTER AT THE LOCAL LEVEL, SO AS TO
FULFILL ITS BARGAINING OBLIGATION UNDER SECTION 11(A) OF THE ORDER.
TURNING TO THE INSTANT CASE, IT IS CLEAR THAT THE ASSISTANT SECRETARY
HAS MISINTERPRETED AND MISAPPLIED THE MERCHANT MARINE DECISION. FOR
UNDER THE ORDER, AS PRESENTLY EFFECTIVE, LABOR RELATIONS AND PERSONNEL
POLICIES AS ESTABLISHED (AND, OF COURSE, PUBLISHED) BY THE DCASR
HEADQUARTERS MAY PROPERLY SERVE TO BAR THE MATTER CONCERNED FROM THE
SCOPE OF BARGAINING UNDER SECTION 11(A) OF THE ORDER. /1/ SINCE THESE
MATTERS WOULD THUS BE OUTSIDE THE SCOPE OF BARGAINING AT THE DCASO
LEVEL, DCASR, UNDER THE MERCHANT MARINE DECISION, WOULD BE UNDER NO
OBLIGATION TO PROVIDE REPRESENTATIVES TO NEGOTIATE AND ENTER INTO
AGREEMENT ON SUCH MATTERS AT THE DCASO LEVEL.
THUS, AS THE ASSISTANT SECRETARY, IN FINDING THE SEPARATE DCASO UNITS
APPROPRIATE IN THE PRESENT CASE, RELIED IN PART ON AN ERRONEOUS
INTERPRETATION AND APPLICATION OF THE MERCHANT MARINE DECISION, WE SHALL
REMAND THE CASE TO HIM FOR RECONSIDERATION AND DISPOSITION CONSISTENT
WITH OUR OPINION.
WE ARE MINDFUL IN THE ABOVE REGARD THAT UNDER THE AMENDMENTS TO
SECTION 11(A), ADOPTED IN E.O. 11838 AND TO BECOME EFFECTIVE 90 DAYS
AFTER THE COUNCIL ISSUES THE CRITERIA FOR DETERMINING "COMPELLING NEED,"
/2/ DCASR DIRECTIVES AS SUCH WOULD NOT THEREAFTER SERVE TO LIMIT THE
SCOPE OF BARGAINING AT THE DCASO LEVEL-- BECAUSE DCASR APPEARS TO BE A
SUBDIVISION BELOW THE LEVEL OF "AGENCY HEADQUARTERS" OR "THE LEVEL OF A
PRIMARY NATIONAL SUBDIVISION." /3/ HOWEVER, THE ASSISTANT SECRETARY
SHOULD CAREFULLY EXAMINE THE REGULATORY FRAMEWORK OF DSA, INCLUDING THE
DCASR'S, WHICH PREVAILS AT THE TIME OF HIS RECONSIDERATION AND THEN
WEIGH THE IMPACT THEREON OF MERCHANT MARINE AS PROPERLY INTERPRETED AND
APPLIED TO THE EXISTING CIRCUMSTANCES IN ORDER THAT THE THREE CRITERIA
IN SECTION 10(B) CAN BE PROPERLY APPLIED. MOREOVER, IN SO APPLYING
MERCHANT MARINE, THE ASSISTANT SECRETARY SHOULD CAREFULLY CONSIDER THAT
THE AMENDMENTS TO SECTION 11(A) AS ADOPTED IN E.O. 11838 WERE NOT
DESIGNED TO RENDER FRAGMENTED UNITS APPROPRIATE.
IN THE ABOVE REGARD, AS INDICATED IN SECTION V.1. OF THE REPORT
ACCOMPANYING E.O. 11838, THE CHANGES IN SECTION 11(A) OF THE ORDER WERE
INTENDED TO "COMPLEMENT" THE RECOMMENDATIONS OF THE COUNCIL RELATING TO
THE CONSOLIDATION OF BARGAINING UNITS. /4/ THE PURPOSE OF THOSE
RECOMMENDATIONS (WHICH WERE ADOPTED BY THE PRESIDENT) WAS PRINCIPALLY TO
REDUCE THE UNIT FRAGMENTATION THAT HAD PREVIOUSLY DEVELOPED AND TO
ENCOURAGE THE CREATION OF MORE COMPREHENSIVE BARGAINING UNITS IN THE
INTEREST OF THE ENTIRE PROGRAM. IN MORE DETAIL, AS STATED IN SECTION
IV. OF THE REPORT ACCOMPANYING E.O. 11838: /5/
ALMOST ALL AGENCIES AND LABOR ORGANIZATIONS WHICH PARTICIPATED IN THE
GENERAL REVIEW
EXPRESSED STRONG SUPPORT FOR A POLICY WHICH WOULD FACILITATE THE
CONSOLIDATION OF EXISTING
EXCLUSIVE RECOGNITIONS. MOREOVER, WE ARE CONVINCED FROM OUR
EXPERIENCE AND ANALYSIS THAT THE
FEDERAL LABOR-MANAGEMENT RELATIONS PROGRAM WILL BE IMPROVED BY A
REDUCTION IN THE UNIT
FRAGMENTATION WHICH HAS DEVELOPED OVER THE 12 YEARS OF
LABOR-MANAGEMENT RELATIONS UNDER
EXECUTIVE ORDERS. THE CONSOLIDATION OF UNITS WILL SUBSTANTIALLY
EXPAND THE SCOPE OF
NEGOTIATIONS AS EXCLUSIVE REPRESENTATIVES NEGOTIATE AT HIGHER
AUTHORITY LEVELS IN FEDERAL
AGENCIES. THE IMPACT OF COUNCIL DECISIONS HOLDING PROPOSALS
NEGOTIABLE WILL BE EXPANDED. IN
OUR VIEW, THE CREATION OF MORE COMPREHENSIVE UNITS IS A NECESSARY
EVOLUTIONARY STEP IN THE
DEVELOPMENT OF A PROGRAM WHICH BEST MEETS THE NEEDS OF THE PARTIES IN
THE FEDERAL
LABOR-MANAGEMENT RELATIONS PROGRAM AND BEST SERVES THE PUBLIC
INTEREST.
WE BELIEVE THAT THE POLICY OF PROMOTING MORE COMPREHENSIVE BARGAINING
UNITS AND HENCE OF
REDUCING FRAGMENTATION IN THE BARGAINING UNIT STRUCTURE WILL FOSTER
THE DEVELOPMENT OF A SOUND
FEDERAL LABOR-MANAGEMENT RELATIONS PROGRAM. WE BELIEVE THAT THE
PROPOSED MODIFICATIONS OF THE
ORDER AND SUBSEQUENT ACTIONS OF THE ASSISTANT SECRETARY WILL
FACILITATE THE CONSOLIDATION OF
EXISTING UNITS, WHICH WILL DO MUCH TO ACCOMPLISH THE POLICY OF
CREATING MORE COMPREHENSIVE
UNITS. WE FURTHER FEEL THAT THE ASSISTANT SECRETARY CAN DO MUCH TO
FOSTER THIS POLICY IN
CARRYING OUT HIS FUNCTIONS OF DECIDING OTHER REPRESENTATION QUESTIONS
INCLUDING THE
APPROPRIATENESS OF NEWLY SOUGHT UNITS. ACCORDINGLY, IN ALL
REPRESENTATION QUESTIONS, EQUAL
WEIGHT MUST BE GIVEN TO EACH OF THE THREE CRITERIA IN SECTION 10(B)
OF THE ORDER. BY DOING
SO, THE RESULT SHOULD BE BROADER, MORE COMPREHENSIVE BARGAINING
UNITS.
ACCORDINGLY, PURSUANT TO SECTION 2411.17(B) OF THE COUNCIL'S RULES
AND REGULATIONS, WE HEREBY SET ASIDE THE ASSISTANT SECRETARY'S DECISION
AND REMAND THE CASE TO HIM FOR RECONSIDERATION AND DISPOSITION
CONSISTENT WITH THE PRINCIPLES DISCUSSED HEREIN.
BY THE COUNCIL.
ISSUED: AUGUST 13, 1975
/1/ SECTION 11(A) OF THE ORDER, AS PRESENTLY EFFECTIVE, PROVIDES:
SEC. 11. NEGOTIATION OF AGREEMENTS. (A) AN AGENCY AND A LABOR
ORGANIZATION THAT HAS BEEN
ACCORDED EXCLUSIVE RECOGNITION, THROUGH APPROPRIATE REPRESENTATIVES,
SHALL MEET AT REASONABLE
TIMES AND CONFER IN GOOD FAITH WITH RESPECT TO PERSONNEL POLICIES AND
PRACTICES AND MATTERS
AFFECTING WORKING CONDITIONS, SO FAR AS MAY BE APPROPRIATE UNDER
APPLICABLE LAWS AND
REGULATIONS, INCLUDING POLICIES SET FORTH IN THE FEDERAL PERSONNEL
MANUAL, PUBLISHED AGENCY
POLICIES AND REGULATIONS, A NATIONAL OR OTHER CONTROLLING AGREEMENT
AT A HIGHER LEVEL IN THE
AGENCY, AND THIS ORDER . . .
/2/ UNDER E.O. 11838, SECTION 11(A) IS AMENDED TO READ, IN PERTINENT
PART, AS FOLLOWS (UNDERSCORING SUPPLIED):
SEC. 11. NEGOTIATION OF AGREEMENTS. (A) AN AGENCY AND A LABOR
ORGANIZATION THAT HAS BEEN
ACCORDED EXCLUSIVE RECOGNITION, THROUGH APPROPRIATE REPRESENTATIVES,
SHALL MEET AT REASONABLE
TIMES AND CONFER IN GOOD FAITH WITH RESPECT TO PERSONNEL POLICIES AND
PRACTICES AND MATTERS
AFFECTING WORKING CONDITIONS, SO FAR AS MAY BE APPROPRIATE UNDER
APPLICABLE LAWS AND
REGULATIONS, INCLUDING POLICIES SET FORTH IN THE FEDERAL PERSONNEL
MANUAL; PUBLISHED AGENCY
POLICIES AND REGULATIONS FOR WHICH A COMPELLING NEED EXISTS UNDER
CRITERIA ESTABLISHED BY THE
FEDERAL LABOR RELATIONS COUNCIL AND WHICH ARE ISSUED AT THE AGENCY
HEADQUARTERS LEVEL OR AT
THE LEVEL OF A PRIMARY NATIONAL SUBDIVISION; A NATIONAL OR OTHER
CONTROLLING AGREEMENT AT A
HIGHER LEVEL IN THE AGENCY; AND THIS ORDER . . .
THESE AMENDMENTS TO SECTION 11(A) ARE TO BECOME EFFECTIVE 90 DAYS
AFTER ISSUANCE BY THE COUNCIL OF THE CRITERIA FOR DETERMINING COMPELLING
NEED.
/3/ SEE SECTION V.1.(B). OF REPORT ACCOMPANYING E.O. 11838,
LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1975), AT P. 39.
/4/ LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1975), AT P.
38.
/5/ ID. AT PP. 35-37.
3 FLRC 491; FLRC NO. 74A-77; AUGUST 8, 1975.
VANDENBERG AIR FORCE BASE,
4392D AEROSPACE SUPPORT GROUP,
VANDENBERG AIR FORCE BASE,
CALIFORNIA
AND
LOCAL UNION 1001, NATIONAL
FEDERATION OF FEDERAL EMPLOYEES,
VANDENBERG AIR FORCE BASE,
CALIFORNIA
(SYNOPSIS) FLRC NO. 74A-77
VANDENBERG AIR FORCE BASE, 4392D AEROSPACE SUPPORT GROUP, VANDENBERG
AIR FORCE BASE, CALIFORNIA, A/SLMR NO. 435. THIS APPEAL AROSE FROM A
DECISION AND ORDER OF THE ASSISTANT SECRETARY, WHO UPON A COMPLAINT
FILED BY LOCAL UNION 1001, NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
HELD THAT THE ACTIVITY HAD VIOLATED SECTION 19(A)(1) AND (6) OF THE
ORDER BY UNILATERALLY TERMINATING THE PARTIES' REGULARLY SCHEDULED
NEGOTIATION SESSION. UPON APPEAL BY THE ACTIVITY, THE COUNCIL
DETERMINED THAT THE ASSISTANT SECRETARY'S DECISION PRESENTED A MAJOR
POLICY ISSUE CONCERNING THE FINDING OF A VIOLATION OF SECTION 19(A)(1)
AND (6) AND THE ISSUANCE OF A REMEDIAL ORDER IN THE CIRCUMSTANCES OF
THIS CASE, AND ACCEPTED THE ACTIVITY'S PETITION FOR REVIEW (REPORT NO.
64).
COUNCIL ACTION (AUGUST 8, 1975). THE COUNCIL CONCLUDED THAT IN THE
INSTANT CASE, WHERE THE REPRESENTATIVES OF THE ACTIVITY CEASED TO ENGAGE
IN THE ALLEGED IMPROPER CONDUCT IMMEDIATELY AFTER IT OCCURRED, AND WHERE
THE ACTIVITY AT ALL TIMES SOUGHT TO CONTINUE THE NEGOTIATIONS IN GOOD
FAITH, A FINDING THAT THE ACTIVITY VIOLATED THE ORDER WAS NOT WARRANTED.
MOREOVER, THE COUNCIL CONCLUDED THAT LITIGATION OF THIS CASE WAS ITSELF
INCONSISTENT WITH THE PURPOSES OF THE ORDER. ACCORDINGLY, THE COUNCIL
HELD THAT THE FINDING BY THE ASSISTANT SECRETARY OF A VIOLATION OF
SECTION 19(A)(1) AND (6) IN THIS CASE WAS INCONSISTENT WITH THE PURPOSES
OF THE ORDER. THE COUNCIL, PURSUANT TO SECTION 2411.17(B) OF ITS RULES
(5 CFR 2411.17(B)), THEREFORE SET ASIDE THE ASSISTANT SECRETARY'S
DECISION AND REMANDED THE CASE TO HIM FOR APPROPRIATE ACTION.
THIS APPEAL AROSE FROM A DECISION AND ORDER OF THE ASSISTANT
SECRETARY WHO, UPON A COMPLAINT FILED BY LOCAL UNION 1001, NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, VANDENBERG AIR FORCE BASE, CALIFORNIA
(HEREIN CALLED THE UNION), HELD THAT THE 4392D AEROSPACE GROUP,
VANDENBERG AIR FORCE BASE, CALIFORNIA (HEREIN REFERRED TO AS THE
ACTIVITY), HAD VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY
UNILATERALLY TERMINATING THE PARTIES' REGULARLY SCHEDULED NEGOTIATING
SESSION BASED ON AN ALLEGED IMPASSE WITH RESPECT TO ONE SUBJECT OF
BARGAINING AND REFUSING TO MEET AND CONFER ON OTHER SUBJECTS OF
BARGAINING.
THE FACTUAL BACKGROUND OF THIS CASE, AS FOUND BY THE ADMINISTRATIVE
LAW JUDGE AND ADOPTED BY THE ASSISTANT SECRETARY, IS AS FOLLOWS: THE
UNION IS THE CERTIFIED REPRESENTATIVE OF SEPARATE UNITS OF PROFESSIONAL
AND NONPROFESSIONAL EMPLOYEES AT THE ACTIVITY. DURING THE NEGOTIATION
OF THE INITIAL CONTRACT FOR THE PROFESSIONAL UNIT, THE UNION PROPOSED
THAT THE PARTIES JOINTLY NEGOTIATE A SINGLE AGREEMENT COVERING BOTH
UNITS, SINCE THE CONTRACT COVERING THE NONPROFESSIONAL UNIT WAS ABOUT TO
TERMINATE, BUT THE FIRST SESSION IN THIS FORMAT BROKE DOWN.
SUBSEQUENTLY, THE ACTIVITY PROPOSED A DIFFERENT NEGOTIATING PROCEDURE--
JOINT BARGAINING OF SEPARATE CONTRACTS-- AND THE UNION ACCEPTED THE
PROPOSAL AS THE FIRST AGENDA ITEM FOR THE NEXT REGULARLY SCHEDULED
BARGAINING SESSION. HOWEVER, WHEN THE ACTIVITY ATTEMPTED TO DISCUSS THE
PROPOSAL AT THAT SESSION, THE UNION REFUSED TO DISCUSS THE PROPOSAL AND
REFUSED TO LET THE ACTIVITY EXPLAIN ITS POSITION. THE ACTIVITY'S CHIEF
NEGOTIATOR THEN STATED THAT HE CONSIDERED THE NEGOTIATIONS TO BE AT AN
IMPASSE, AND WHEN THE UNION NEGOTIATOR ATTEMPTED TO BEGIN DISCUSSION OF
THE NEXT AGENDA ITEM, THE ACTIVITY'S NEGOTIATOR STATED FURTHER THAT HE
DID NOT INTEND TO CONTINUE THE NEGOTIATIONS UNTIL THE IMPASSE WAS
RESOLVED. /1/ IN RESPONSE, THE UNION NEGOTIATOR STATED THAT HE WOULD
FILE AN UNFAIR LABOR PRACTICE CHARGE CITING THE ACTIVITY'S REFUSAL TO
BARGAIN. THEREUPON, THE ACTIVITY NEGOTIATING TEAM LEFT THE SESSION.
HOWEVER, ON THE NEXT DAY, THE ACTIVITY'S CHIEF NEGOTIATOR COMMUNICATED
TO HIS UNION COUNTERPART AN OFFER TO RESUME NEGOTIATIONS AND, IN AN
INFORMAL CONTACT WITH A MEMBER OF THE ACTIVITY NEGOTIATING TEAM, THE
UNION'S CHIEF NEGOTIATOR WAS INFORMED THAT THE ACTIVITY WOULD NOT INSIST
ON DISCUSSING THE FIRST AGENDA ITEM. THIS OFFER WAS REAFFIRMED IN
RESPONSE TO THE UNFAIR LABOR PRACTICE CHARGE WHICH THE UNION FILED 2
DAYS LATER WITH THE ACTIVITY, BUT THE UNION SUSPENDED NEGOTIATIONS
PENDING RESOLUTION OF ITS COMPLAINT. SUBSEQUENTLY, EFFORTS BY THE
FEDERAL MEDIATION AND CONCILIATION SERVICE TO FACILITATE THE RESUMPTION
OF NEGOTIATIONS PROVED TO BE WITHOUT EFFECT. /2/
THE ADMINISTRATIVE LAW JUDGE FOUND THAT WHEN THE ACTIVITY WALKED OUT
OF THE MEETING, IT HAD COMMITTED A TECHNICAL VIOLATION OF SECTION
19(A)(6) OF THE ORDER IN THAT IT DID NOT HAVE A RIGHT TO INSIST, TO THE
POINT OF IMPASSE, THAT THE UNION DISCUSS ITS PROPOSAL FOR
DUAL-SIMULTANEOUS NEGOTIATIONS. THE ADMINISTRATIVE LAW JUDGE THEN,
HOWEVER, REVIEWED THE SUBSEQUENT EVENTS AND CONCLUDED:
HOWEVER, I FURTHER FIND THAT THIS VIOLATION WAS RENDERED MOOT THE
FOLLOWING DAY WHEN THE
UNION WAS ADVISED TWICE . . . THAT THE ACTIVITY HAD RECEDED FROM ITS
POSITION AND WAS WILLING
TO RETURN TO THE BARGAINING TABLE. IN THESE CIRCUMSTANCES, I CANNOT
UNDERSTAND WHY THE UNION
REFUSED TO ACCEPT THIS OFFER BY THE ACTIVITY. EVEN IF THE UNION HAD
SOME DOUBT ABOUT THE
ACTIVITY'S GOOD FAITH, IT COULD QUICKLY TEST THIS GOOD FAITH BY
RETURNING TO THE BARGAINING
TABLE. INSTEAD, THE UNION INSISTED UPON FILING AN UNFAIR LABOR
PRACTICE CHARGE TO WHICH THE
ACTIVITY PROMPTLY RESPONDED . . . THAT THE ACTIVITY'S DECISION WITH
RESPECT TO THE CHARGE WAS
TO "NEGOTIATE SERIOUSLY ON ANY APPROPRIATE MATTER." THERE IS NO
EVIDENCE IN THE RECORD TO
SUGGEST THAT THE ACTIVITY HAD IN MIND ANYTHING BUT TO DO PRECISELY
WHAT AN ASSISTANT
SECRETARY'S ORDER WOULD ACCOMPLISH IF A VIOLATION WERE FOUND, I.E.,
TO ORDER THE ACTIVITY BACK
TO THE BARGAINING TABLE. I CONCLUDE THAT AS OF THE DATE THAT THE
UNFAIR LABOR PRACTICE CHARGE
WAS FILED, THE ACTIVITY WAS NOT INSISTING TO IMPASSE UPON MULTI-UNIT
BARGAINING AS A CONDITION
PRECEDENT TO BARGAINING. THEREFORE, I RECOMMEND THAT NO VIOLATION OF
SECTION 19(A)(6), (1),
AND (2) OF THE EXECUTIVE ORDER BE FOUND. IN LIGHT OF THE FOREGOING, I
FURTHER CONCLUDE THAT
THE UNION'S CONDUCT IN THIS ENTIRE MATTER, BOTH AT THE (REGULARLY
SCHEDULED BARGAINING
SESSION) AND THEREAFTER, RAISES A SERIOUS QUESTION AS TO ITS OWN
GENUINE WILLINGNESS TO
BARGAIN IN GOOD FAITH. IT IS NOTED, HOWEVER, THAT APPARENTLY THE
ACTIVITY DID NOT FILE AN
UNFAIR LABOR PRACTICE CHARGE AGAINST THE UNION. INSTEAD, THE
ACTIVITY HAS ATTEMPTED TO
BARGAIN WITH THE UNION, DESPITE THE UNION'S APPARENT UNWILLINGNESS TO
DO SO, AT THE SAME TIME
THAT IT IS BARGAINING IN GOOD FAITH WITH THE SAME UNION FOR A
CONTRACT COVERING A DIFFERENT
UNIT AT THE SAME LOCATION. (EMPHASIS IN ORIGINAL.)
ON REVIEW, THE ASSISTANT SECRETARY AGREED WITH THE ADMINISTRATIVE LAW
JUDGE THAT, IN THE PARTICULAR CIRCUMSTANCES OF THE CASE, THE ACTIVITY
VIOLATED SECTION 19(A)(6) OF THE ORDER BY UNILATERALLY TERMINATING THE
PARTIES' NEGOTIATION SESSION BASED ON THE ALLEGED IMPASSE WITH RESPECT
TO ONE SUBJECT OF BARGAINING AND REFUSING TO MEET AND CONFER ON OTHER
SUBJECTS OF BARGAINING. THE ASSISTANT SECRETARY ALSO FOUND THAT SUCH
CONDUCT CONSTITUTED AN IMPROPER INTERFERENCE WITH EMPLOYEE RIGHTS IN
VIOLATION OF SECTION 19(A)(1) OF THE ORDER. THE ASSISTANT SECRETARY
THEN CONCLUDED:
HOWEVER, I DISAGREE WITH THE ADMINISTRATIVE LAW JUDGE'S CONCLUSION
THAT, UNDER THE
CIRCUMSTANCES OF THIS CASE, THE RESPONDENT'S IMPROPER CONDUCT
CONSTITUTED MERELY A "TECHNICAL
VIOLATION" OF THE ORDER WHICH DID NOT REQUIRE A REMEDIAL ORDER.
ACCORDINGLY, I SHALL ORDER
THAT THE RESPONDENT REMEDY ITS VIOLATION OF SECTION 19(A)(1) AND (6)
OF THE ORDER.
THE ACTIVITY APPEALED THE ASSISTANT SECRETARY'S DECISION TO THE
COUNCIL, ALLEGING THAT THE DECISION WAS ARBITRARY AND CAPRICIOUS AND
PRESENTED MAJOR POLICY ISSUES. THE COUNCIL ACCEPTED THE ACTIVITY'S
PETITION FOR REVIEW, CONCLUDING THAT A MAJOR POLICY ISSUE WAS PRESENT
CONCERNING THE FINDING OF A VIOLATION OF SECTION 19(A)(1) AND (6) AND
THE ISSUANCE OF A REMEDIAL ORDER IN THE CIRCUMSTANCES OF THIS CASE. THE
COUNCIL ALSO DETERMINED THAT THE ACTIVITY'S REQUEST FOR A STAY MET THE
CRITERIA FOR GRANTING SUCH A REQUEST AS SET FORTH IN SECTION
2411.47(C)(2) OF ITS RULES AND GRANTED THE REQUEST. THE ACTIVITY AND
THE UNION FILED BRIEFS WITH THE COUNCIL AS PROVIDED IN SECTION 2411.16
OF THE COUNCIL'S RULES.
AS INDICATED ABOVE, THE ASSISTANT SECRETARY FOUND THAT THE ACTIVITY
VIOLATED SECTION 19(A)(1) AND (6) BY UNILATERALLY TERMINATING THE
PARTIES' REGULARLY SCHEDULED BARGAINING SESSION. IN THE OPINION OF THE
COUNCIL, THE FINDING OF A VIOLATION OF SECTION 19(A)(1) AND (6), BASED
ON THE ACTIVITY'S CONDUCT IN THE CIRCUMSTANCES OF THIS CASE, IS
INCONSISTENT WITH THE PURPOSES OF THE ORDER.
SECTION 11(A) /3/ OF THE ORDER IMPOSES ON AN AGENCY (OR ACTIVITY) AND
A LABOR ORGANIZATION ENGAGED IN THE PROCESS OF NEGOTIATING A COLLECTIVE
BARGAINING AGREEMENT THE DUTY TO NEGOTIATE IN GOOD FAITH. SECTION
19(A)(6) /4/ PROVIDES THAT AGENCY MANAGEMENT SHALL NOT REFUSE TO
NEGOTIATE AS REQUIRED BY THE ORDER. THUS, THE ISSUE BEFORE THE
ASSISTANT SECRETARY IN THIS CASE WAS WHETHER, BASED WHOLLY ON THE SERIES
OF EVENTS COMPLAINED OF HEREIN, THE ACTIVITY VIOLATED THE ORDER BY
FAILING TO NEGOTIATE IN GOOD FAITH WITH THE UNION.
WHILE AN IMPASSE IN NEGOTIATIONS WHICH RESULTS FROM A DEMAND THAT
CERTAIN IMPROPER CONDITIONS BE MET BEFORE NEGOTIATIONS CAN CONTINUE MAY,
UNDER CERTAIN CIRCUMSTANCES, CONSTITUTE A REFUSAL TO NEGOTIATE IN GOOD
FAITH, IT IS DIFFICULT TO CONCLUDE THAT THE CIRCUMSTANCES OF THIS CASE
ARE AN APPROPRIATE BASIS FOR THE FINDING OF SUCH A REFUSAL TO NEGOTIATE.
THOUGH THE ACTIVITY'S CHIEF NEGOTIATOR DID REFUSE TO NEGOTIATE
REGARDING THE SECOND AGENDA ITEM PENDING THE MEDIATION OF THE IMPASSE
OVER THE FIRST ITEM ON THE AGENDA, ALMOST AS SOON AS THAT REFUSAL WAS
MADE, THE ACTIVITY RETRACTED IT AND OFFERED TO RESUME NEGOTIATIONS.
SUBSEQUENTLY AND CONSISTENTLY, BOTH IN ITS RESPONSE TO THE UNION'S
UNFAIR LABOR PRACTICE CHARGE AND IN INFORMAL CONTACTS WITH THE UNION,
THE ACTIVITY REITERATED ITS WILLINGNESS TO RESUME NEGOTIATIONS AND TO
WITHDRAW ITS INSISTENCE ON NEGOTIATION OF THE FIRST AGENDA ITEM.
HOWEVER, THE LABOR ORGANIZATION HAS CONSISTENTLY REFUSED TO RETURN TO
THE NEGOTIATING TABLE UNTIL ITS COMPLAINT WAS RESOLVED.
WHAT IS AT ISSUE IN THIS CASE IS WHETHER A VIOLATION OF THE ORDER
SHOULD HAVE BEEN FOUND ON THE BASIS OF SO BRIEF AN INTERRUPTION IN THE
NEGOTIATIONS. IN OUR VIEW, WHEN ALL OF THE CIRCUMSTANCES OF THE
SITUATION ARE TAKEN INTO ACCOUNT, IT IS EVIDENT THAT THE ACTIVITY'S
CONDUCT IN THIS ONE INSTANCE WAS OF A DE MINIMIS NATURE AND THUS IS NOT
SUFFICIENT TO CONSTITUTE A FAILURE TO NEGOTIATE IN GOOD FAITH IN
VIOLATION OF THE ORDER. EXPERIENCE IN LABOR RELATIONS, WHETHER IN THE
FEDERAL LABOR-MANAGEMENT RELATIONS PROGRAM, ON THE STATE AND LOCAL
GOVERNMENT LEVEL, OR IN THE PRIVATE SECTOR, INDICATES THAT THERE ARE
OCCASIONS WHEN, DURING THE COURSE OF NEGOTIATING AN AGREEMENT,
REPRESENTATIVES OF EITHER PARTY, MANAGEMENT OR LABOR ORGANIZATION,
ENGAGE IN CONDUCT WHICH MIGHT, STANDING ALONE, CONSTITUTE THE BASIS FOR
AN UNFAIR LABOR PRACTICE COMPLAINT. HOWEVER, THAT EXPERIENCE ALSO
INDICATES THAT IT IS NOT UNCOMMON FOR THE PARTY QUICKLY TO CEASE
ENGAGING IN SUCH CONDUCT AND TO CONTINUE NEGOTIATIONS IN GOOD FAITH.
/5/ THE COUNCIL FEELS STRONGLY THAT IN APPROPRIATE FACTUAL SITUATIONS,
SUCH AS THAT IN THIS CASE, SIMILARLY BRIEF INTERRUPTIONS OF NEGOTIATIONS
WITH A DE MINIMIS EFFECT SHOULD NOT WARRANT THE FINDING OF A VIOLATION.
RATHER, AN ISOLATED INCIDENT WHICH RESULTS IN SUCH A BRIEF INTERRUPTION
SHOULD BE EXAMINED IN THE CONTEXT OF THE TOTALITY OF THE RESPONDENT'S
BARGAINING CONDUCT FOR A DETERMINATION AS TO WHETHER IT WOULD EFFECTUATE
THE PURPOSES OF THE ORDER TO FIND A VIOLATION WHEN NO FURTHER BENEFIT
WOULD ACCRUE FROM THAT FINDING AND FROM THE RESULTANT REMEDIAL ORDER.
THUS, WE CONCLUDE THAT IN THE INSTANT CASE, WHERE THE REPRESENTATIVES OF
THE ACTIVITY CEASED TO ENGAGE IN THE ALLEGED IMPROPER CONDUCT
IMMEDIATELY AFTER IT OCCURRED, AND WHERE THE ACTIVITY AT ALL TIMES
SOUGHT TO CONTINUE THE NEGOTIATIONS IN GOOD FAITH, A FINDING THAT THE
ACTIVITY VIOLATED THE ORDER IS NOT WARRANTED. /6/
MOREOVER, IN ADDITION TO OUR CONCLUSION THAT THE CONDUCT OF THE
ACTIVITY IN THE CIRCUMSTANCES HEREIN DID NOT CONSTITUTE A VIOLATION OF
THE ORDER, IT IS ALSO THE OPINION OF THE COUNCIL THAT LITIGATION OF THIS
CASE IS ITSELF INCONSISTENT WITH THE PURPOSES OF THE ORDER. THE
NEGOTIATIONS BETWEEN THE PARTIES TO THIS CASE HAVE BEEN SUSPENDED SINCE
THE UNFAIR LABOR PRACTICE CHARGE WAS ORIGINALLY FILED. THIS HAS
OCCURRED IN THE FACE OF THE EXPRESS OFFER AND THE CONTINUED WILLINGNESS
OF THE ACTIVITY TO RESUME BARGAINING. THIS HAS MEANT, IN ITS MOST
SERIOUS ASPECT, THAT THE EMPLOYEES IN THE PROFESSIONAL UNIT HAVE BEEN
WITHOUT THE PROTECTION AFFORDED BY A COLLECTIVE BARGAINING AGREEMENT
DURING THE ENTIRE PERIOD IN WHICH THE COMPLAINT WAS PROCESSED. IN THE
OPINION OF THE COUNCIL, LITIGATION OF THIS SORT DOES NOT EFFECTUATE THE
LONG-TERM ESTABLISHMENT OF COLLECTIVE BARGAINING IN THE FEDERAL PROGRAM.
THE PREAMBLE OF EXECUTIVE ORDER 11491, AS AMENDED, STATES ONE OF THE
PURPOSES OF THE FEDERAL LABOR RELATIONS PROGRAM AS "THE MAINTENANCE OF
CONSTRUCTIVE AND COOPERATIVE RELATIONSHIPS BETWEEN LABOR ORGANIZATIONS
AND MANAGEMENT OFFICIALS . . . " /7/ TO THAT END, THE ORDER PROVIDES THE
MEANS FOR THE ESTABLISHMENT AND MAINTENANCE OF SUCH RELATIONSHIPS.
NEVERTHELESS, THE PRIMARY RESPONSIBILITY FOR MAINTAINING COOPERATION
BETWEEN LABOR ORGANIZATIONS AND MANAGEMENT LIES WITH THOSE PARTIES
THEMSELVES. /8/ THUS, IT DOES NOT SERVE THE PURPOSES OF THE ORDER WHEN
THE PARTIES USE THE SANCTIONS PROVIDED THEREIN AS THE FIRST, AND NOT THE
LAST, RESORT FOR THE SETTLEMENT OF THEIR DISPUTES. COOPERATIVE LABOR
RELATIONS ARE NOT ESTABLISHED OR MAINTAINED WHEN A LABOR ORGANIZATION OR
THE MANAGEMENT OF AN AGENCY ESTABLISHES AS ITS FIRST PRIORITY. NOT THE
NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT, BUT THE VINDICATION OF
ITS POSITION IN AN UNFAIR LABOR PRACTICE PROCEEDING.
THE PURPOSES OF THE ORDER WILL BEST BE SERVED IF CASES SUCH AS THE
ONE HEREIN ARE SCREENED FROM THE UNFAIR LABOR PRACTICE PROCEDURES OF THE
ASSISTANT SECRETARY. IN ITS RECENT REVIEW OF THE FEDERAL LABOR
RELATIONS PROGRAM UNDER THE EXECUTIVE ORDER, THE COUNCIL CONCLUDED "THAT
THE PROCESSING OF UNFAIR LABOR PRACTICE CASES CAN BE IMPROVED GREATLY IF
THE ASSISTANT SECRETARY, PURSUANT TO HIS AUTHORITY TO PRESCRIBE
REGULATIONS NEEDED TO ADMINISTER HIS FUNCTIONS UNDER THE ORDER, MODIFIES
HIS PROCEDURE TO PERMIT MEMBERS OF HIS STAFF TO CONDUCT SUCH INDEPENDENT
INVESTIGATION IN THESE CASES AS HE DEEMS NECESSARY IN ORDER TO DETERMINE
WHETHER THERE IS A REASONABLE BASIS FOR THE COMPLAINT . . . THIS
PROCEDURE WILL, IN OUR VIEW, FACILITATE THE INFORMAL RESOLUTION OF
UNFAIR LABOR PRACTICE ISSUES." /9/ CONSISTENT WITH THIS RECOMMENDATION,
THE ASSISTANT SECRETARY HAS PROMULGATED AND PUBLISHED REGULATIONS WHICH
ESTABLISH HIS AUTHORITY TO INVESTIGATE UNFAIR LABOR PRACTICE COMPLAINTS.
/10/ IN THE OPINION OF THE COUNCIL, THIS INVESTIGATIVE AUTHORITY OF THE
ASSISTANT SECRETARY PROVIDES A MECHANISM BY WHICH UNNECESSARY LITIGATION
OF THIS SORT MAY BE DIVERTED FROM THE UNFAIR LABOR PRACTICE PROCEDURES.
THROUGH INVESTIGATION INTO THE CIRCUMSTANCES OF CASES IN WHICH CONTRACT
NEGOTIATIONS HAVE BROKEN DOWN DUE TO CONDUCT ALLEGED TO CONSTITUTE AN
UNFAIR LABOR PRACTICE, THE ASSISTANT SECRETARY WILL BE ABLE TO IDENTIFY
THOSE IN WHICH A CONTINUED WILLINGNESS TO BARGAIN EXISTS AND THE EFFECTS
OF THE ALLEGED IMPROPRIETY, IF ANY IMPROPER CONDUCT OCCURRED, HAVE BEEN
REMOVED. WHERE SUCH CIRCUMSTANCES ARE FOUND TO EXIST, AND IT IS CLEAR
THAT NOTHING MORE IS TO BE GAINED BY THE PARTIES, THE EMPLOYEES, OR THE
FEDERAL PROGRAM IN THE FURTHER PROCESSING OF THE COMPLAINT, THE
ASSISTANT SECRETARY MAY PROPERLY DISMISS THAT COMPLAINT, THEREBY
REMOVING IT FROM THE LITIGATION PROCESS. /11/
FOR THE FOREGOING REASONS, WE FIND THAT THE ASSISTANT SECRETARY'S
DECISION THAT THE ACTIVITY VIOLATED SECTION 19(A)(1) AND (6) IN THE
CIRCUMSTANCES OF THIS CASE IS INCONSISTENT WITH THE PURPOSES OF THE
ORDER. ACCORDINGLY, PURSUANT TO SECTION 2411.17(B) OF THE COUNCIL'S
RULES OF PROCEDURE, WE SET ASIDE THE ASSISTANT SECRETARY'S DECISION AND
REMAND THE CASE TO HIM FOR APPROPRIATE ACTION CONSISTENT WITH OUR
DECISION.
BY THE COUNCIL.
ISSUED: AUGUST 8, 1975
/1/ THE RECORD INDICATES THAT THE UNION, DURING THE DISCUSSION OF THE
GROUND RULES FOR NEGOTIATION, HAD DECLARED AN IMPASSE AND REFUSED TO
PROCEED WITH THE AGENDA, AND THAT THE PARTIES AT THAT TIME REQUESTED THE
INTERVENTION OF THE FEDERAL MEDIATION AND CONCILIATION SERVICE.
FURTHER, THE RECORD INDICATES THAT, UPON DECLARING THE IMPASSE AT THE
NEGOTIATION SESSION HEREIN, THE ACTIVITY'S CHIEF NEGOTIATOR STATED HIS
INTENTION TO REQUEST THE INTERVENTION OF THE FEDERAL MEDIATION AND
CONCILIATION SERVICE. OFFICIAL REPORT OF PROCEEDINGS, PP. 134-160.
/2/ THE RECORD INDICATES THAT THE ACTIVITY'S CHIEF NEGOTIATOR AND THE
UNION'S CHIEF NEGOTIATOR FOR THE PROFESSIONAL UNIT HAD A SMALL NUMBER OF
MEETINGS REGARDING THE PROFESSIONAL UNIT CONTRACT SUBSEQUENT TO THE
MEETING WITH THE FEDERAL MEDIATION AND CONCILIATION SERVICE, ALTHOUGH NO
FORMAL NEGOTIATIONS WERE HELD. OFFICIAL REPORT OF PROCEEDINGS, PP.
152-160.
/3/ SECTION 11(A) PROVIDES, IN PERTINENT PART, AS FOLLOWS:
SEC. 11. NEGOTIATION OF AGREEMENTS. (A) AN AGENCY AND A LABOR
ORGANIZATION THAT HAS BEEN
ACCORDED EXCLUSIVE RECOGNITION, THROUGH APPROPRIATE REPRESENTATIVES,
SHALL MEET AT REASONABLE
TIMES AND CONFER IN GOOD FAITH WITH RESPECT TO PERSONNEL POLICIES AND
PRACTICES AND MATTERS
AFFECTING WORKING CONDITIONS . . .
/4/ SECTION 19(A)(6) PROVIDES, IN PERTINENT PART, AS FOLLOWS:
SEC. 19. UNFAIR LABOR PRACTICES. (A) AGENCY MANAGEMENT SHALL NOT--
(6) REFUSE TO CONSULT,
CONFER, OR NEGOTIATE WITH A LABOR ORGANIZATION AS REQUIRED BY THIS
ORDER.
/5/ WHILE PRIVATE SECTOR PRECEDENTS ARE NOT CONTROLLING IN THE
FEDERAL LABOR-MANAGEMENT RELATIONS PROGRAM, VARIOUS DECISIONS OF THE
NATIONAL LABOR RELATIONS BOARD ILLUSTRATE THIS OBSERVATION. SEE, FOR
EXAMPLE, FRED F. KNIPSCHILD, ET AL., D/B/A/ GENERAL DEHYDRATED FOODS, 45
NLRB NO. 145 (1942), NOCONA BOOT COMPANY, 116 NLRB NO. 273 (1956), AND
WHITING MILK COMPANY, 145 NLRB NO. 137 (1964).
/6/ THE ASSISTANT SECRETARY'S FINDING THAT THE ACTIVITY VIOLATED
SECTION 19(A)(1) IS BASED ON THE SAME CONDUCT AS THAT WHICH HE FOUND TO
CONSTITUTE A VIOLATION OF SECTION 19(A)(6). ACCORDINGLY, AS THERE IS NO
BASIS IN THAT CONDUCT FOR THE FINDING OF A VIOLATION OF SECTION
19(A)(6), THERE IS ALSO, AND FOR THE SAME REASONS, NO BASIS FOR THE
FINDING OF A VIOLATION OF SECTION 19(A)(1).
/7/ THE PREAMBLE OF EXECUTIVE ORDER 11491, AS AMENDED, READS AS
FOLLOWS:
WHEREAS THE PUBLIC INTEREST REQUIRES HIGH STANDARDS OF EMPLOYEE
PERFORMANCE AND THE
CONTINUAL DEVELOPMENT AND IMPLEMENTATION OF MODERN AND PROGRESSIVE
WORK PRACTICES TO
FACILITATE IMPROVED EMPLOYEE PERFORMANCE( AND EFFICIENCY; AND
WHEREAS THE WELL-BEING OF EMPLOYEES AND EFFICIENT ADMINISTRATION OF
THE GOVERNMENT ARE
BENEFITED BY PROVIDING EMPLOYEES AN OPPORTUNITY TO PARTICIPATE IN THE
FORMULATION AND
IMPLEMENTATION OF PERSONNEL POLICIES AND PRACTICES AFFECTING THE
CONDITIONS OF THEIR
EMPLOYMENT; AND
WHEREAS THE PARTICIPATION OF EMPLOYEES SHOULD BE IMPROVED THROUGH THE
MAINTENANCE OF
CONSTRUCTIVE AND COOPERATIVE RELATIONSHIPS BETWEEN LABOR
ORGANIZATIONS AND MANAGEMENT
OFFICIALS; AND
WHEREAS SUBJECT TO LAW AND THE PARAMOUNT REQUIREMENTS OF PUBLIC
SERVICE, EFFECTIVE
LABOR-MANAGEMENT RELATIONS WITHIN THE FEDERAL SERVICE REQUIRE A CLEAR
STATEMENT OF THE
RESPECTIVE RIGHTS AND OBLIGATIONS OF LABOR ORGANIZATIONS AND AGENCY
MANAGEMENT:
NOW, THEREFORE, BY VIRTUE OF THE AUTHORITY VESTED IN ME BY THE
CONSTITUTION AND STATUTES OF
THE UNITED STATES, INCLUDING SECTIONS 3301 AND 7301 OF TITLE 5 OF THE
UNITED STATES CODE, AND
AS PRESIDENT OF THE UNITED STATES, I HEREBY DIRECT THAT THE FOLLOWING
POLICIES SHALL GOVERN
OFFICERS AND AGENCIES OF THE EXECUTIVE BRANCH OF THE GOVERNMENT IN
ALL DEALINGS WITH FEDERAL
EMPLOYEES AND ORGANIZATIONS REPRESENTING SUCH EMPLOYEES. (EXECUTIVE
ORDER 11491, AS AMENDED,
LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1975), P. 7.)
/8/ IN THE REPORT ACCOMPANYING EXECUTIVE ORDER 11491, EMPHASIS WAS
PLACED ON THE INFORMAL RESOLUTION BY THE PARTIES OF ALLEGED UNFAIR LABOR
PRACTICES PRIOR TO THE FILING OF A COMPLAINT WITH THE ASSISTANT
SECRETARY: "ALLEGED UNFAIR LABOR PRACTICES OTHER THAN THOSE SUBJECT TO
AN APPLICABLE GRIEVANCE OR APPEALS PROCEDURE SHOULD BE INVESTIGATED BY
THE AGENCY AND LABOR ORGANIZATION INVOLVED AND INFORMAL ATTEMPTS TO
RESOLVE THE COMPLAINTS SHOULD BE MADE BY THE PARTIES. IF INFORMAL
ATTEMPTS ARE UNSUCCESSFUL IN DISPOSING OF THE COMPLAINTS WITHIN A
REASONABLE PERIOD OF TIME, BOTH PARTIES MAY AGREE TO STIPULATE THE FACTS
TO THE ASSISTANT SECRETARY AND REQUEST A DECISION. IN LIEU OF A JOINT
REQUEST, EITHER PARTY MAY REQUEST THE ASSISTANT SECRETARY TO ISSUE A
DECISION ON THE MATTER." STUDY COMMITTEE REPORT AND RECOMMENDATIONS,
AUGUST 1969, LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1975),
SECTION D.3., P. 69. THE ASSISTANT SECRETARY'S REGULATIONS, AS A
CONDITION PRECEDENT TO THE FILING OF A COMPLAINT, REQUIRE THAT AN
ATTEMPT BE MADE BY THE PARTIES TO RESOLVE INFORMALLY THE ALLEGED UNFAIR
LABOR PRACTICE. RULES AND REGULATIONS OF THE ASSISTANT SECRETARY,
SECTION 203.2.
MOREOVER, BY WAY OF ANALOGY, WHAT WAS SAID IN THAT SAME REPORT
PERTAINING TO THE RESOLUTION OF NEGOTIATION IMPASSES IS EQUALLY
APPLICABLE TO THE RESOLUTION OF DISPUTES BETWEEN PARTIES OVER UNFAIR
LABOR PRACTICES: "THE READY AVAILABILITY OF THIRD-PARTY PROCEDURES FOR
RESOLUTION OF NEGOTIATION IMPASSES COULD CAUSE THE UNDESIRED ESCALATION
EFFECT WHEREBY THE PARTIES, INSTEAD OF WORKING OUT THEIR DIFFERENCES BY
HARD, EARNEST AND SERIOUS NEGOTIATION, CONTINUALLY WOULD TAKE THEIR
PROBLEMS TO A THIRD PARTY FOR SETTLEMENT . . . IT IS GENERALLY
RECOGNIZED THAT AGREEMENTS VOLUNTARILY ARRIVED AT BY THE PARTIES ARE THE
HALLMARK OF THE INDUSTRIAL DEMOCRACY ENJOYED IN THIS COUNTRY." STUDY
COMMITTEE REPORT AND RECOMMENDATIONS, AUGUST 1969, LABOR-MANAGEMENT
RELATIONS IN THE FEDERAL SERVICE (1975), SECTION F, PP. 72-73.
/9/ REPORT AND RECOMMENDATIONS OF THE FEDERAL LABOR RELATIONS COUNCIL
ON THE AMENDMENT OF EXECUTIVE ORDER 11491, AS AMENDED, LABOR-MANAGEMENT
RELATIONS IN THE FEDERAL SERVICE (1975), SECTION VIII.2., P. 49.
/10/ THE RULES AND REGULATIONS OF THE ASSISTANT SECRETARY, SECTION
203.6 PROVIDE AS FOLLOWS:
SECTION 203.6 INVESTIGATION OF COMPLAINTS; COOPERATION BY
ACTIVITIES, AGENCIES AND LABOR
ORGANIZATIONS; OFFICIAL TIME FOR WITNESSES; BURDEN OF PROOF; AND
AVAILABILITY OF EVIDENCE. THE
AREA DIRECTOR SHALL CONDUCT SUCH INDEPENDENT INVESTIGATION OF THE
COMPLAINT AS HE DEEMS
NECESSARY.
(A) A PARTY MAY REQUEST THE AREA DIRECTOR TO CONDUCT AN INDEPENDENT
INVESTIGATION UPON A
SHOWING:
(1) THAT THERE IS SUFFICIENT INFORMATION TO WARRANT FURTHER
PROCESSING OF THE
COMPLAINT; AND
(2) THAT THERE ARE PROSPECTIVE INDIVIDUAL WITNESSES FROM WHOM HE HAS
BEEN UNABLE TO OBTAIN
A SIGNED STATEMENT BECAUSE OF GEOGRAPHIC DISPERSION OF THE WITNESSES
OR BECAUSE OF THEIR
RELUCTANCE TO PROVIDE INFORMATION TO A PARTY; THE REQUEST MUST
CLEARLY IDENTIFY ANY SUCH
WITNESSES AND INDICATE THE NATURE OF THEIR EXPECTED TESTIMONY; OR
(3) THAT THE REQUESTING PARTY LACKS ACCESS TO PERTINENT DOCUMENTS OR
DATA; THE REQUEST
SHOULD CLEARLY IDENTIFY SUCH DOCUMENTS OR DATA, ESTABLISH THEIR
RELEVANCE, AND INDICATE THE
REASON WHY THE REQUESTING PARTY HAS BEEN UNABLE TO OBTAIN THEM.
(B) AT THE CONCLUSION OF ANY INDEPENDENT INVESTIGATION CONDUCTED AT
THE REQUEST OF A PARTY,
TO THE EXTENT LEGALLY PERMISSIBLE, THE ASSISTANT REGIONAL DIRECTOR
SHALL:
(1) TRANSMIT TO THE REQUESTING PARTY ANY DATA OR COPIES OF ANY
DOCUMENTS OBTAINED AS A
RESULT OF SUCH INVESTIGATION, NOTIFYING ALL OTHER PARTIES SO THAT
THEY MAY BE SUPPLIED COPIES
OF THE SAME UPON REQUEST;
(2) TRANSMIT TO ALL PARTIES COPIES OF SIGNED STATEMENTS OBTAINED FROM
ANY WITNESS
INTERVIEWED;
(3) NOTIFY THE REQUESTING PARTY OF THE NAMES OF ALL PROSPECTIVE
WITNESSES IDENTIFIED BY HIM
WHO HAVE BEEN CONTACTED AND WHO HAVE NOT SIGNED STATEMENTS.
(C) IN CONNECTION WITH THE INDEPENDENT INVESTIGATION OF COMPLAINTS,
ACTIVITIES, AGENCIES
AND LABOR ORGANIZATIONS ARE EXPECTED TO COOPERATE FULLY IN SUCH
INVESTIGATIONS WITH THE AREA
DIRECTOR.
(D) WHEN, DURING THE COURSE OF AN INDEPENDENT INVESTIGATION BY THE
AREA DIRECTOR, IT IS
DETERMINED THAT A CERTAIN EMPLOYEE OR CERTAIN EMPLOYEES SHOULD BE
INTERVIEWED, SUCH EMPLOYEE
OR EMPLOYEES SHALL BE GRANTED OFFICIAL TIME FOR THE PERIOD OF SUCH
INTERVIEW(S) ONLY INSOFAR
AS SUCH INTERVIEW(S) OCCUR(S) DURING REGULAR WORK HOURS AND WHEN THE
EMPLOYEE(S) WOULD
OTHERWISE BE IN A WORK OR PAID LEAVE STATUS.
(E) THE COMPLAINANT SHALL BEAR THE BURDEN OF PROOF AT ALL STAGES OF
THE PROCEEDING
REGARDING MATTERS ALLEGED IN ITS COMPLAINT, EXCEPT AS OTHERWISE
PROVIDED IN SECTION 203.7(B).
(F) A COMPLAINT ALLEGING A VIOLATION OF SECTION 19(B)(4) OF THE ORDER
SHALL RECEIVE THE
HIGHEST PRIORITY INVESTIGATION.
(G) A COMPLAINT ALLEGING A VIOLATION OF SECTION 19(A)(2) OF THE ORDER
SHALL BE GIVEN
PRIORITY OVER ALL OTHER COMPLAINTS UNDER SECTION 19 EXCEPT THOSE
INVOLVING SECTION 19(B)(4) OF
THE ORDER.
/11/ IT SHOULD BE NOTED THAT THIS IS NOT THE ONLY MEANS OPEN TO THE
ASSISTANT SECRETARY FOR SCREENING UNNECESSARY LITIGATION FROM THE UNFAIR
LABOR PRACTICE PROCEDURES. IN THE REPORT AND RECOMMENDATIONS
ACCOMPANYING EXECUTIVE ORDER 11491, IT WAS STATED: "IF THE ASSISTANT
SECRETARY FINDS . . . THAT A SATISFACTORY OFFER OF SETTLEMENT HAS BEEN
MADE, HE MAY DISMISS THE COMPLAINT." STUDY COMMITTEE REPORT AND
RECOMMENDATIONS, AUGUST 1969, LABOR-MANAGEMENT RELATIONS IN THE FEDERAL
SERVICE (1975), SECTION D.3., P. 69. PURSUANT TO THIS RECOMMENDATION,
THE ASSISTANT SECRETARY HAS PROVIDED IN HIS REGULATIONS FOR SUCH
SETTLEMENTS. RULES AND REGULATIONS OF THE ASSISTANT SECRETARY, SECTION
203.7(A)(3). SEE ALSO SECTION 203.7(B)(4).
3 FLRC 488; FLRC NO. 75A-38; JULY 30, 1975.
MR. JAMES R. ROSA, STAFF COUNSEL
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
1325 MASSACHUSETTS AVENUE, NW.
WASHINGTON, D.C. 20005
(SYNOPSIS) FLRC NO. 75A-38
INTERNAL REVENUE SERVICE, LOS ANGELES DISTRICT, LOS ANGELES,
CALIFORNIA, ASSISTANT SECRETARY CASE NO. 72-4736. THE ASSISTANT
SECRETARY, IN CONSONANCE WITH THE ASSISTANT REGIONAL DIRECTOR, FOUND
THAT DISMISSAL OF OBJECTIONS FILED BY THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2202 (AFGE) TO CONDUCT ALLEGED TO HAVE
IMPROPERLY AFFECTED THE RESULTS OF AN ELECTION WAS WARRANTED.
ACCORDINGLY, THE ASSISTANT SECRETARY DENIED AFGE'S REQUEST FOR REVIEW OF
THE ASSISTANT REGIONAL DIRECTOR'S REPORT AND FINDINGS ON OBJECTIONS.
AFGE APPEALED TO THE COUNCIL, CONTENDING THAT THE ASSISTANT SECRETARY'S
DECISION WAS ARBITRARY AND CAPRICIOUS AND PRESENTED MAJOR POLICY ISSUES.
COUNCIL ACTION (JULY 30, 1975). THE COUNCIL DETERMINED THAT THE
DECISION OF THE ASSISTANT SECRETARY DID NOT APPEAR ARBITRARY AND
CAPRICIOUS AND DID NOT PRESENT A MAJOR POLICY ISSUE. ACCORDINGLY, SINCE
AFGE'S APPEAL FAILED TO MEET THE REQUIREMENTS FOR REVIEW SET FORTH IN
SECTION 2411.12 OF THE COUNCIL'S RULES (5 CFR 2411.12), THE COUNCIL
DENIED THE PETITION FOR REVIEW.
DEAR MR. ROSA:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR REQUEST FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
THE CASE AROSE WHEN LOCAL 2202, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES (AFGE) FILED OBJECTIONS TO CONDUCT ALLEGED TO HAVE IMPROPERLY
AFFECTED THE RESULTS OF AN ELECTION, CONTENDING, IN PERTINENT PART, THAT
A BUS STRIKE IN LOS ANGELES ON THE DAY OF THE ELECTION PREVENTED A
REPRESENTATIVE TURNOUT OF VOTERS; THAT THE NATIONAL PRESIDENT OF A
RIVAL UNION MADE ERRONEOUS STATEMENTS TO UNIT EMPLOYEES CONCERNING
AFGE'S POSITION REGARDING THE NATION'S 1972 PRESIDENTIAL ELECTION, WHICH
STATEMENT IMPROPERLY AFFECTED THE OUTCOME OF THE ELECTION; AND THAT A
LUNCHEON SPONSORED BY THE RIVAL UNION WAS PARTLY HELD ON OFFICIAL TIME,
A FACT WHICH THE ACTIVITY CONDONED BY ALLOWING IT TO OCCUR. THE
ASSISTANT REGIONAL DIRECTOR, IN HIS REPORT AND FINDINGS ON OBJECTIONS,
FOUND THAT "NO OBJECTIONABLE CONDUCT OCCURRED IMPROPERLY AFFECTING THE
OUTCOME OF THE ELECTION." THE ASSISTANT SECRETARY, IN AGREEMENT WITH THE
ASSISTANT REGIONAL DIRECTOR, AND BASED ON HIS REASONING, FOUND THAT
DISMISSAL OF THE OBJECTIONS IN THIS CASE WAS WARRANTED AND DENIED YOUR
REQUEST FOR REVIEW OF THE ASSISTANT REGIONAL DIRECTOR'S REPORT AND
FINDINGS.
IN YOUR APPEAL TO THE COUNCIL, YOU CONTEND THAT THE ASSISTANT
SECRETARY'S DECISION PRESENTS A MAJOR POLICY ISSUE IN THAT IT REFLECTS A
DEVIATION FROM ESTABLISHED PUBLIC AND PRIVATE SECTOR LAW CONCERNING
ELECTION PROTESTS INVOLVING CAMPAIGN PROPAGANDA AND MISREPRESENTATIONS.
YOU ALSO CONTEND THAT THE DECISION OF THE ASSISTANT SECRETARY IS
ARBITRARY AND CAPRICIOUS AND PRESENTS A MAJOR POLICY ISSUE AS TO WHETHER
THE ASSISTANT SECRETARY MAY DISMISS AN ELECTION OBJECTION ONCE HE HAS
FOUND THE OBJECTION SUPPORTED BY SOME EVIDENCE, WITHOUT MAKING A FINDING
THAT THE OBJECTIONABLE CONDUCT DID NOT MATERIALLY AFFECT THE OUTCOME OF
THE ELECTION.
IN THE COUNCIL'S VIEW, YOUR PETITION FOR REVIEW DOES NOT MEET THE
REQUIREMENTS OF SECTION 2411.12 OF THE COUNCIL'S RULES; THAT IS, THE
DECISION OF THE ASSISTANT SECRETARY DOES NOT APPEAR ARBITRARY AND
CAPRICIOUS NOR DOES IT PRESENT A MAJOR POLICY ISSUE. WITH RESPECT TO
THE ALLEGED MAJOR POLICY ISSUE REGARDING A PURPORTED DEVIATION FROM
APPLICABLE PRECEDENTS CONCERNING CAMPAIGN PROPAGANDA AND
MISREPRESENTATIONS, THERE IS NO INDICATION HEREIN THAT THE ASSISTANT
SECRETARY IN ANY WAY DEPARTED FROM HIS PREVIOUSLY ESTABLISHED PRECEDENT
WHEN HE RULED THAT FIVE DAYS WAS AN ADEQUATE OPPORTUNITY FOR AFGE TO
RESPOND TO THE ALLEGED MISREPRESENTATION. AS TO YOUR CONTENTION THAT
THE ASSISTANT SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS AND
PRESENTS A MAJOR POLICY ISSUE IN THAT HE DISMISSED ELECTION OBJECTIONS
ALLEGEDLY FOUND TO BE SUPPORTED BY SOME EVIDENCE WITHOUT SPECIFICALLY
FINDING THAT THE OBJECTIONABLE CONDUCT DID NOT MATERIALLY AFFECT THE
OUTCOME OF THE ELECTION, IT DOES NOT APPEAR THAT THE ASSISTANT SECRETARY
ACTED WITHOUT REASONABLE JUSTIFICATION IN CONCLUDING THAT AFGE FAILED TO
SUSTAIN ITS REQUIRED BURDEN OF PROOF WITH RESPECT TO SUCH OBJECTIONS.
MOREOVER, THE ASSISTANT REGIONAL DIRECTOR, UPON WHOSE REPORT AND
FINDINGS THE DECISION OF THE ASSISTANT SECRETARY IS BASED, FOUND WITH
RESPECT TO THE OBJECTIONS AS A WHOLE "THAT NO OBJECTIONABLE CONDUCT
OCCURRED IMPROPERLY AFFECTING THE OUTCOME OF THE ELECTION."
SINCE THE DECISION OF THE ASSISTANT SECRETARY DOES NOT APPEAR
ARBITRARY AND CAPRICIOUS AND DOES NOT PRESENT A MAJOR POLICY ISSUE, YOUR
APPEAL FAILS TO MEET THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION
2411.12 OF THE COUNCIL'S RULES. ACCORDINGLY, YOUR PETITION FOR REVIEW
IS DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
R. TOBIAS
NTEU
J. STANSBARGER
IRS
3 FLRC 483; FLRC NO. 74A-104; JULY 30, 1975.
NAGE LOCAL 5-65
AND
MEMPHIS NAVAL AIR STATION,
MILLINGTON, TENNESSEE
(SYNOPSIS) FLRC NO. 74A-104
NAGE LOCAL 5-65 AND MEMPHIS NAVAL AIR STATION, MILLINGTON, TENNESSEE.
THE DISPUTE INVOLVED THE NEGOTIABILITY UNDER THE ORDER OF A UNION
PROPOSAL CONCERNING THE COMPUTATION OF PAY FOR NONAPPROPRIATED FUND
EMPLOYEES OF THE ACTIVITY WHO ARE PAID BY COMMISSION ON A PERCENTAGE OF
SALES BASIS.
COUNCIL ACTION (JULY 30, 1975). BASED ON AN INTERPRETATION BY THE
CIVIL SERVICE COMMISSION OF PUBLIC LAW 92-392 AND THE COMMISSION'S OWN
IMPLEMENTING ISSUANCES PROMULGATED PURSUANT TO THAT LAW, THE COUNCIL
HELD THAT THE UNION'S PROPOSAL VIOLATES SUCH LAW AND COMMISSION
DIRECTIVES. ACCORDINGLY, THE COUNCIL SUSTAINED THE AGENCY HEAD'S
DETERMINATION OF NONNEGOTIABILITY.
NAGE LOCAL 5-65 REPRESENTS A UNIT OF NAVY EXCHANGE EMPLOYEES AT
MEMPHIS NAVAL AIR STATION. DURING THE COURSE OF NEGOTIATIONS WITH THE
AIR STATION, A DISPUTE AROSE CONCERNING THE NEGOTIABILITY OF THE
FOLLOWING UNION PROPOSAL:
EMPLOYEES PAID BY COMMISSION ON A PERCENTAGE OF SALES BASIS WILL BE
PAID AT LEAST 85
PERCENT OR NO LESS THAN THE PERCENTAGE PAID TO PIECEWORKER EMPLOYEES
OF OTHER NONAPPROPRIATED
FUND ESTABLISHMENTS IN THE WAGE AREA.
UPON REFERRAL, THE AGENCY PRINCIPALLY DETERMINED THAT THE UNION'S
PROPOSAL IS NONNEGOTIABLE BECAUSE IT CONFLICTS WITH PUBLIC LAW 92-392 (5
U.S.C. 5341 ET SEQ.) AND IMPLEMENTING CIVIL SERVICE COMMISSION
DIRECTIVES (PARTICULARLY FEDERAL PERSONNEL MANUAL SUPPLEMENT 532-2).
/1/ THE UNION PETITIONED THE COUNCIL FOR REVIEW OF THIS DETERMINATION
UNDER SECTION 11(C)(4) OF THE ORDER, CONTENDING THAT PUBLIC LAW 92-392
IS NOT APPLICABLE IN THE CIRCUMSTANCES OF THIS CASE AND THAT THE
PERCENTAGE TO BE PAID TO THE EMPLOYEES COVERED BY THE PROPOSAL IS
NEGOTIABLE. THE AGENCY FILED A STATEMENT OF ITS POSITION.
THE QUESTION DISPOSITIVE OF THE NEGOTIABILITY ISSUE BEFORE THE
COUNCIL IN THIS CASE IS WHETHER THE UNION'S PROPOSAL CONFLICTS WITH
PUBLIC LAW 92-392 AND IMPLEMENTING CIVIL SERVICE COMMISSION DIRECTIVES.
SINCE THE CIVIL SERVICE COMMISSION HAS PRIMARY RESPONSIBILITY FOR THE
ISSUANCE AND INTERPRETATION OF ITS OWN DIRECTIVES, INCLUDING THE FEDERAL
PERSONNEL MANUAL, THAT AGENCY WAS REQUESTED, IN ACCORDANCE WITH COUNCIL
PRACTICE, FOR AN INTERPRETATION OF COMMISSION DIRECTIVES AS THEY PERTAIN
TO THE QUESTIONS RAISED IN THE PRESENT CASE. THE COMMISSION REPLIED IN
RELEVANT PART AS FOLLOWS:
IN OUR OPINION, THE PROPOSAL ADVANCED BY NAGE LOCAL 5-65 DOES
CONFLICT WITH PUBLIC LAW
92-392 AND THE PRESCRIBED REGULATIONS OF THE COMMISSION. WE VIEW THE
EMPLOYEES INVOLVED AS
PREVAILING RATE EMPLOYEES SUBJECT TO THE FEDERAL WAGE SYSTEM AND,
THEREFORE, SUBJECT TO THE
PROVISIONS OF P.L. 92-392. UNDER THAT LAW, THE CIVIL SERVICE
COMMISSION IS RESPONSIBLE FOR
PRESCRIBING THE PRACTICES AND PROCEDURES GOVERNING THE IMPLEMENTATION
AND ADMINISTRATION OF
THE FEDERAL WAGE SYSTEM. THE ORGANIZATIONAL AND FUNCTIONAL
RESPONSIBILITIES OF THE
COMMISSION, RELATIVE TO THE SYSTEM, ARE PROVIDED UNDER SUBCHAPTER S3
OF FEDERAL PERSONNEL
MANUAL SUPPLEMENT 532-2.
WE FIND THAT PAY FOR BARBERS EMPLOYED BY THE ACTIVITY HAS BEEN FIXED
IN ACCORDANCE WITH AN
AGENCY PRACTICE WHICH IS USED TO ESTABLISH SPECIAL WAGE RATES. THE
FACT THAT THE APPLICABLE
NAF REGULAR WAGE RATE SCHEDULE DOES NOT LIST THE OCCUPATION OF THE
EMPLOYEES INVOLVED DOES NOT
ALSO MEAN THAT THEY ARE EXCLUDED FROM THE FEDERAL WAGE SYSTEM, NOR
DOES IT ALTER THEIR STATUS
AS PREVAILING RATE EMPLOYEES. COMMISSION REGULATIONS DO NOT REQUIRE
AGENCIES TO LIST
OCCUPATIONS PAID SPECIAL RATES ON REGULAR WAGE RATE SCHEDULES.
THE (CASE) PAPERS SUBMITTED WITH YOUR LETTER INCLUDE EVIDENCE THAT
THE SPECIAL PAY PRACTICE
EXISTED AND WAS USED BY THE ACTIVITY PRIOR TO IMPLEMENTATION OF THE
PROVISIONS OF
P.L. 92-392. THERE IS NO EVIDENCE THAT A HISTORY OF BARGAINING WAGES
EXISTED WITH RESPECT TO
THE EMPLOYEES INVOLVED. IF IT CAN BE DETERMINED THAT PAY HAS BEEN
NEGOTIATED IN THE PAST,
SECTION 9(B)(1) OF P.L. 920392 COULD HAVE AN EFFECT ON THIS CASE.
/2/ IN OUR REVIEW FOR
DOCUMENTED PRECEDENT AND INTERPRETATION OF P.L. 92-392, WE REFERRED
TO THE HOUSE OF
REPRESENTATIVES' REPORT ON THE PAY SYSTEM FOR GOVERNMENT PREVAILING
RATE EMPLOYEES. A COPY OF
THE REPORT IS PROVIDED FOR YOUR INFORMATION. AN ANALYSIS OF
PARAGRAPH (3) OF SECTION 5343(C)
OF THE BILL, WHICH COVERS SUPERVISORY AND SPECIAL SCHEDULES, IS
INCLUDED ON PAGE 14 OF THE
REPORT. /3/ THE ANALYSIS INDICATES THAT IT WAS THE INTENT OF
CONGRESS THAT THE COMMISSION IS
TO PROVIDE THE REGULATIONS FOR THE DEVELOPMENT OF WAGE SCHEDULES AND
RATES FOR PREVAILING RATE
EMPLOYEES PAID UNDER REGULAR AND SPECIAL WAGE SCHEDULES.
PURSUANT TO THE LAW, INSTRUCTIONS ISSUED BY THE COMMISSION IN
SUBCHAPTER S10-2, FPM
SUPPLEMENT 532-2, CONCERN CONVERSION OF NAF WAGE EMPLOYEES FROM
AGENCY NAF SYSTEMS TO THE
FEDERAL NAF SYSTEM. PARAGRAPH B(2) OF THE SUBCHAPTER REFERS TO
APPENDIX V OF THE FPM
SUPPLEMENT WHICH, UNDER PARAGRAPH A(4), INCLUDES BARBERS EMPLOYED BY
THE NAVY RESALE SYSTEM
OFFICE EXCHANGES AS ONE OF THE NAF SPECIAL SCHEDULE CATEGORIES UNDER
COVERAGE OF THE FEDERAL
WAGE SYSTEM. INSTRUCTIONS UNDER PARAGRAPH B(2) OF THE SUBCHAPTER
FURTHER STATE THAT NAF
SPECIAL SCHEDULE EMPLOYEES PAID ON OTHER THAN A TIME-RATE BASIS, FOR
EXAMPLE, ON THE BASIS OF
COMMISSION, WILL CONTINUE TO HAVE THEIR PAY DETERMINED IN ACCORDANCE
WITH EXISTING AGENCY
PRACTICE PENDING FURTHER INSTRUCTIONS TO BE ISSUED BY THE COMMISSION.
HOWEVER, THE SPECIAL
SCHEDULES DESCRIBED IN THE AFOREMENTIONED APPENDIX V HAVE BEEN PLACED
IN A SET-ASIDE CATEGORY
AS PROVIDED UNDER SUBCHAPTER S2-2 OF THE FPM SUPPLEMENT. SUBCHAPTER
S2-2 PROVIDES THAT, AS AN
INTERIM MEASURE, THE SPECIAL SCHEDULES ARE CONTINUED UNDER THE
FEDERAL NAF WAGE SYSTEM UNTIL
THEY HAVE BEEN REVIEWED AND DECISIONS HAVE BEEN MADE ON THE
RECOMMENDATIONS OF THE FEDERAL
PREVAILING RATE ADVISORY COMMITTEE. IT IS ALSO PERTINENT TO NOTE
THAT PARAGRAPH B(2) OF
SUBCHAPTER S10-2 STATES THAT WHEN THE APPROPRIATE AGENCY WAGE FIXING
AUTHORITY DETERMINES,
AFTER APPROPRIATE CONSULTATION WITH LABOR ORGANIZATION
REPRESENTATIVES, THAT AN EARLIER CHANGE
IN PAY PRACTICES IS REQUIRED, SUCH A CHANGE MAY BE MADE EARLIER. IT
IS THE OPINION OF THE
COMMISSION THAT WAGES AND COMMISSIONS OF BARBERS EMPLOYED BY THE
MEMPHIS NAVAL AIR STATION NAF
ACTIVITY ARE PROPERLY FIXED IN ACCORDANCE WITH THE WAGE FIXING
PROCEDURES AUTHORIZED FOR
SPECIAL SCHEDULE CATEGORIES IN FPM SUPPLEMENT 532-2. (FOOTNOTES
SUPPLIED.)
BASED ON THE FOREGOING INTERPRETATION BY THE CIVIL SERVICE COMMISSION
OF PUBLIC LAW 92-392 AND ITS OWN IMPLEMENTING ISSUANCES PROMULGATED
PURSUANT TO THAT LAW, WE FIND THAT THE UNION'S PROPOSAL VIOLATES SUCH
LAW AND COMMISSION DIRECTIVES. ACCORDINGLY, WE MUST SUSTAIN THE AGENCY
HEAD'S DETERMINATION THAT THE UNION'S PROPOSAL VIOLATES APPLICABLE LAW
AND REGULATIONS OF APPROPRIATE AUTHORITY OUTSIDE THE AGENCY.
BASED UPON THE REASONS SET FORTH ABOVE, AND PURSUANT TO SECTION
2411.27 OF THE COUNCIL'S RULES AND REGULATIONS, WE FIND THAT THE AGENCY
HEAD'S DETERMINATION THAT THE UNION PROPOSAL HERE INVOLVED IS
NONNEGOTIABLE WAS PROPER AND MUST, THEREFORE, BE SUSTAINED.
BY THE COUNCIL.
ISSUED: JULY 30, 1975
/1/ THE AGENCY ALSO CONTENDS THAT THE PROPOSAL VIOLATES SECTION 11(B)
OF THE ORDER AND AGENCY REGULATIONS. HOWEVER, IN VIEW OF OUR DECISION
HEREIN, IT IS UNNECESSARY TO REACH, AND WE THEREFORE MAKE NO RULING UPON
THESE CONTENTIONS.
/2/ IN THIS REGARD, THE CASE RECORD BEFORE THE COUNCIL CONTAINS NO
CONTENTION NOR IS IT OTHERWISE APPARENT THAT PAY FOR THE EMPLOYEES
SOUGHT TO BE COVERED BY THE UNION'S PROPOSAL HAS BEEN NEGOTIATED IN THE
PAST.
/3/ THE REFERENCED ANALYSIS IN THE HOUSE OF REPRESENTATIVES REPORT
PROVIDES AS FOLLOWS:
PARAGRAPH (3) OF SECTION 5343(C) PROVIDES THAT THE REGULATIONS OF THE
COMMISSION SHALL
INCLUDE INSTRUCTIONS GOVERNING THE ACCOMPLISHMENT OF THE REGULAR AND
SPECIAL SCHEDULE SURVEYS
WHICH WILL BE CONDUCTED BY THE LEAD AGENCIES IN ACCORDANCE WITH THE
PROVISIONS OF SECTION
5343(A)(3). THE REGULATIONS ALSO SHALL CONTAIN INSTRUCTIONS FOR THE
DEVELOPMENT OF WAGE
SCHEDULES AND RATES FOR PREVAILING RATE EMPLOYEES, INCLUDING (1)
NONSUPERVISORY AND
SUPERVISORY PREVAILING RATE EMPLOYEES PAID UNDER REGULAR OR SPECIAL
WAGE SCHEDULES AND (2)
NONSUPERVISORY AND SUPERVISORY PREVAILING RATE EMPLOYEES DESCRIBED
UNDER PARAGRAPHS (B) AND
(C) OF THE NEW SECTION 5342(A)(2).
THE "NEW" SECTION 5342(A)(2) OF 5 U.S.C. CITED IN THE QUOTED ANALYSIS
PROVIDES IN PERTINENT PART:
(2) "PREVAILING RATE EMPLOYEE" MEANS--
(B) AN EMPLOYEE OF A NONAPPROPRIATED FUND INSTRUMENTALITY DESCRIBED
BY SECTION 2105(C) OF
THIS TITLE WHO IS EMPLOYED IN A RECOGNIZED TRADE OR CRAFT, OR OTHER
SKILLED MECHANICAL CRAFT,
OR IN AN UNSKILLED, SEMISKILLED, OR SKILLED MANUAL LABOR OCCUPATION,
AND ANY OTHER INDIVIDUAL,
INCLUDING A FOREMAN AND A SUPERVISOR, IN A POSITION HAVING TRADE,
CRAFT, OR LABORING
EXPERIENCE AND KNOWLEDGE AS THE PARAMOUNT REQUIREMENT; . . .
3 FLRC 475; FLRC NO. 74A-38; JULY 30, 1975.
NAGE LOCAL R8-14
AND
FEDERAL AVIATION ADMINISTRATION,
OKLAHOMA CITY, OKLAHOMA
(SYNOPSIS) FLRC NO. 74A-38
NAGE LOCAL R8-14 AND FEDERAL AVIATION ADMINISTRATION, OKLAHOMA CITY,
OKLAHOMA (STRATTON, ARBITRATOR). THE ARBITRATOR DETERMINED THAT THE
AGENCY UNREASONABLY REQUIRED CERTAIN EMPLOYEES TO ROTATE BETWEEN DAY AND
NIGHT SHIFT ASSIGNMENTS IN VIOLATION OF THE PARTIES' AGREEMENT. THE
COUNCIL ACCEPTED THE AGENCY'S PETITION FOR REVIEW INSOFAR AS IT RELATED
TO THE AGENCY'S EXCEPTION WHICH ALLEGED THAT THE ARBITRATOR EXCEEDED HIS
AUTHORITY. FURTHER, THE COUNCIL GRANTED THE AGENCY'S REQUEST FOR A STAY
(REPORT NO. 56).
COUNCIL ACTION (JULY 30, 1975). THE COUNCIL CONCLUDED THAT THE
ARBITRATOR'S INTERPRETATION OF THE AGREEMENT PROVISION IN DISPUTE DRAWS
ITS ESSENCE FROM THE NEGOTIATED AGREEMENT, AND HELD THAT THE ARBITRATOR
DID NOT EXCEED HIS AUTHORITY IN DETERMINING THAT THE AGENCY ACTED
UNREASONABLY. ACCORDINGLY, PURSUANT TO SECTION 2411.37(B) OF ITS RULES
OF PROCEDURE (5 CFR 2411.37(B)), THE COUNCIL SUSTAINED THE ARBITRATOR'S
AWARD. LIKEWISE, THE COUNCIL VACATED THE STAY WHICH IT HAD PREVIOUSLY
GRANTED.
THIS APPEAL AROSE FROM THE ARBITRATOR'S DETERMINATION THAT THE AGENCY
UNREASONABLY REQUIRED CERTAIN EMPLOYEES TO ROTATE BETWEEN DAY AND NIGHT
SHIFT ASSIGNMENTS.
BASED ON THE FINDINGS OF THE ARBITRATOR AND THE ENTIRE RECORD, THE
CIRCUMSTANCES OF THE CASE APPEAR AS FOLLOWS:
PRIOR TO FEBRUARY, 1974, THE EMPLOYEES IN THE SHEET METAL SHOP AT THE
AGENCY'S OKLAHOMA CITY AIRCRAFT SERVICES BASE HAD BEEN ASSIGNED TO
EITHER THE DAY SHIFT (6:45 A.M. TO 3:15 P.M.) OR THE NIGHT SHIFT (3:00
P.M. TO 11:30 P.M.). IN FEBRUARY THE AGENCY, FOLLOWING DISCUSSIONS WITH
THE UNION, INSTITUTED A NEW POLICY OF ROTATIONAL SHIFT ASSIGNMENTS
REQUIRING THAT EACH SHOP EMPLOYEE ALTERNATE BETWEEN THE DAY AND NIGHT
SHIFTS EVERY 4 WEEKS. /1/
SHORTLY BEFORE THIS POLICY BECAME EFFECTIVE, THE UNION FILED A
GRIEVANCE ALLEGING THAT THE CHANGE IN SHIFT ASSIGNMENTS WOULD VIOLATE
SECTION 2 OF ARTICLE XXI OF THE NEGOTIATED AGREEMENT. THAT SECTION,
INSOFAR AS PERTINENT TO THIS CASE, PROVIDES AS FOLLOWS:
THE EMPLOYER WILL SHOW PROPER REGARD FOR THE DIGNITY OF EMPLOYEES AND
PROVIDE A WORK
ENVIRONMENT THAT IS CONDUCIVE TO GOOD WORKER MORALE.
UNABLE TO RESOLVE THE GRIEVANCE, THE PARTIES PROCEEDED TO ARBITRATION
UNDER THE TERMS OF THE NEGOTIATED AGREEMENT.
THE RECORD DOES NOT SHOW WHETHER THE PARTIES ENTERED INTO A SEPARATE
SUBMISSION AGREEMENT OR OTHERWISE FORMALLY IDENTIFIED THE ISSUE
PRESENTED FOR ARBITRATION. IN HIS WRITTEN OPINION, HOWEVER, THE
ARBITRATOR FIRST CHARACTERIZED THE ISSUE BEFORE HIM AS WHETHER THE
AGENCY HAD "VIOLATED THE CONTRACT BY REQUIRING UNREASONABLE SHIFT
ROTATION." SUBSEQUENTLY HE NARROWED THIS QUESTION TO:
WHETHER OR NOT THE EMPLOYER ACTED UNREASONABLY IN REQUIRING ALL OF
THE EMPLOYEES TO ROTATE
RATHER THAN ALLOWING THOSE EMPLOYEES WHO PREFER A NIGHT SHIFT TO
REMAIN ON A PERMANENT NIGHT
SHIFT AND HAVING THE REMAINING EMPLOYEES ROTATE WITH WHATEVER
FREQUENCY THE EMPLOYER
DETERMINED WAS PROPER TO PERFORM THE MISSION.
THE ARBITRATOR FOUND THAT "BY FAR THE MAJORITY OF EMPLOYEES DESIRED A
PERMANENT DAY SHIFT AND THAT ONLY SIX (6) EMPLOYEES HAD REQUESTED THAT
THEY BE RETAINED ON A PERMANENT NIGHT SHIFT." REJECTING AS UNPERSUASIVE
THE AGENCY'S ARGUMENTS FOR "NOT GIVING CONSIDERATION" TO THE WISHES OF
THE SIX EMPLOYEES SEEKING TO REMAIN ON THE NIGHT SHIFT, THE ARBITRATOR
DETERMINED TO BE UNREASONABLE THE AGENCY'S REQUIREMENT THAT THESE SIX
EMPLOYEES ROTATE SHIFTS ALONG WITH THE OTHER EMPLOYEES IN THE SHOP. THE
ARBITRATOR THEREUPON FOUND SPECIFICALLY AS FOLLOWS:
(A) THAT THE EMPLOYER HAS THE RIGHT TO DETERMINE THE NUMBER OF
EMPLOYEES WHO WILL WORK ON
THE DAY SHIFT AND THE NUMBER OF EMPLOYEES WHO WILL WORK ON THE NIGHT
SHIFT;
(B) THAT BECAUSE OF THE OBVIOUS SUPERIORITY IN NUMBERS OF THOSE
EMPLOYEES WHO DESIRE TO
WORK ON THE DAY SHIFT THAT (SIC) THE EMPLOYER MUST FIRST ALLOW THOSE
EMPLOYEES WHO WISH TO
WORK ON A NIGHT SHIFT ON A PERMANENT BASIS TO CONTINUE TO DO SO AS
LONG AS THERE ARE NOT MORE
EMPLOYEES WHO DESIRE TO WORK ON A NIGHT SHIFT PERMANENTLY THAN THE
EMPLOYER DETERMINES ARE
NECESSARY TO ACCOMPLISH THE MISSION OF THE UNIT; AND
(C) THE EMPLOYER HAS THE RIGHT TO CONTINUE ROTATING THE REMAINING
EMPLOYEES BETWEEN THE DAY
SHIFT AND THE NIGHT SHIFT WITH WHATEVER FREQUENCY IS NECESSARY TO
MAINTAIN THE NUMERICAL
COMPLEMENT BALANCE BETWEEN THE DAY SHIFT AND NIGHT SHIFT AS
DETERMINED SOLELY BY THE EMPLOYER.
THE ARBITRATOR FURTHER FOUND THAT "THIS PARTICULAR AWARD SHOULD NOT
BE CONSIDERED BINDING UPON THE EMPLOYER EXCEPT UNDER THE CONDITIONS
PREVAILING AT THE PRESENT TIME," AND THAT IN THE EVENT CONDITIONS
"SHOULD CHANGE TO THE EXTENT THAT THERE WOULD BE A VALID REASON FOR
COMPLETE ROTATION OF BOTH DAY AND NIGHT SHIFT(S) THIS OPINION WOULD NO
LONGER CONTROL THE SITUATION."
THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD WITH
THE COUNCIL, ALLEGING THAT THE ARBITRATOR HAD EXCEEDED HIS AUTHORITY.
PURSUANT TO SECTION 2411.32 OF ITS RULES AND REGULATIONS THE COUNCIL
ACCEPTED THE PETITION ON THIS GROUND. /2/ THE AGENCY PRESENTED NO
FURTHER ARGUMENT ON THE MERITS OF THE CASE, WHILE THE UNION FILED A
BRIEF.
SECTION 2411.37(A) OF THE COUNCIL'S RULES AND REGULATIONS PROVIDES,
IN PERTINENT PART, THAT "(A)N AWARD OF AN ARBITRATOR SHALL BE MODIFIED,
SET ASIDE IN WHOLE OR IN PART, OR REMANDED ONLY ON GROUNDS . . . SIMILAR
TO THOSE APPLIED BY THE COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT
RELATIONS." IT IS WELL ESTABLISHED IN THE PRIVATE SECTOR THAT WHEN AN
ARBITRATOR IS EMPOWERED TO INTERPRET THE TERMS OF AN AGREEMENT A
REVIEWING COURT MAY NOT SET ASIDE THE ARBITRATOR'S AWARD MERELY BECAUSE
THE COURT'S OWN INTERPRETATION OF THE AGREEMENT MAY DIFFER. AS THE
SUPREME COURT HAS SAID: /3/
(T)HE QUESTION OF INTERPRETATION OF THE COLLECTIVE BARGAINING
AGREEMENT IS A QUESTION FOR
THE ARBITRATOR. IT IS THE ARBITRATOR'S CONSTRUCTION WHICH WAS
BARGAINED FOR; AND SO FAR AS
THE ARBITRATOR'S DECISION CONCERNS CONSTRUCTION OF THE CONTRACT, THE
COURTS HAVE NO BUSINESS
OVERRULING HIM BECAUSE THEIR INTERPRETATION OF THE CONTRACT IS
DIFFERENT FROM HIS.
THE COUNCIL, CONSISTENT WITH SECTION 2411.37(A) OF ITS RULES AND
REGULATIONS, ADHERES TO THIS PRINCIPLE. /4/
IT IS EQUALLY WELL ESTABLISHED IN THE PRIVATE SECTOR THAT AN
ARBITRATOR MAY NOT EXCEED THE AUTHORITY GRANTED HIM BY THE PARTIES TO
THE ARBITRATION, AND THAT A REVIEWING COURT WILL NOT ENFORCE AN
ARBITRATION AWARD WHICH FAILS TO DRAW "ITS ESSENCE" FROM THE COLLECTIVE
BARGAINING AGREEMENT. AS THE SUPREME COURT ALSO SAID IN ENTERPRISE:
/5/
NEVERTHELESS, AN ARBITRATOR IS CONFINED TO INTERPRETATION AND
APPLICATION OF THE COLLECTIVE
BARGAINING AGREEMENT; HE DOES NOT SIT TO DISPENSE HIS OWN BRAND OF
INDUSTRIAL JUSTICE. HE MAY
OF COURSE LOOK FOR GUIDANCE FROM MANY SOURCES, YET HIS AWARD IS
LEGITIMATE ONLY SO LONG AS IT
DRAWS ITS ESSENCE FROM THE COLLECTIVE BARGAINING AGREEMENT. WHEN THE
ARBITRATOR'S WORDS
MANIFEST AN INFIDELITY TO THIS OBLIGATION, COURTS HAVE NO CHOICE BUT
TO REFUSE ENFORCEMENT OF
THE AWARD.
THUS, WHILE COURTS IN THE PRIVATE SECTOR WILL REVIEW AN ARBITRATION
AWARD ON THE GROUND THAT THE AWARD DOES NOT DRAW ITS ESSENCE FROM THE
COLLECTIVE BARGAINING AGREEMENT, THAT REVIEW IS NECESSARILY A VERY
LIMITED ONE. AS THE FIFTH CIRCUIT HAS SAID: /6/
WHAT IS THE STANDARD OF JUDICIAL REVIEW AT THAT STAGE? OBVIOUSLY, IT
CANNOT BE THE
ORDINARY ONE OF ASCERTAINING THE CORRECTNESS ON USUAL PRINCIPLES OF
LAW INCLUDING CONTRACT
CONSTRUCTION. FOR IF THIS WERE PERMISSIBLE, ARBITRATION AS THE
STRUCTURE FOR INDUSTRIAL PEACE
SUPPLANTING THE USUAL PROCESSES FOR COURT ADJUDICATION WOULD ITSELF
BE SUPPLANTED BY THE
JUDICIAL MACHINE AT THE TIME IT WOULD COUNT THE MOST-- THAT IS, AT
THE MOMENT AN ARBITER'S
AWARD WAS SOUGHT TO BE ENFORCED. ON THE OTHER HAND, MERELY BECAUSE
THE SPECIFIC CONTROVERSY
FORMING THE SUBJECT OF THE FORMAL GRIEVANCE IS WITHIN THE SCOPE OF
THE AGREEMENT TO ARBITRATE
OR THE REMEDY FASHIONED IS LIKEWISE WITHIN THE CONTRACTUAL POWERS OF
THE ARBITER DOES NOT
INSULATE THE AWARD FROM JUDICIAL SCRUTINY ALTOGETHER. ON ITS FACE
THE AWARD SHOULD ORDINARILY
REVEAL THAT IT FINDS ITS SOURCE IN THE CONTRACT AND THOSE
CIRCUMSTANCES OUT OF WHICH COMES THE
"COMMON LAW OF THE SHOP." BUT WHEN IT REASONABLY SATISFIES THESE
REQUIREMENTS WE THINK IT IS
NOT OPEN TO THE COURT TO ASSAY THE LEGAL CORRECTNESS OF THE REASONING
PURSUED . . . WE MAY
ASSUME, WITHOUT HERE DECIDING, THAT IF THE REASONING IS SO PALPABLY
FAULTY THAT NO JUDGE, OR
GROUP OF JUDGES, COULD EVER CONCEIVABLY HAVE MADE SUCH A RULING THEN
THE COURT CAN STRIKE DOWN
THE AWARD. BUT WHERE IT IS NOT THAT GROSS THE ARBITER'S ERROR-- EVEN
THOUGH ON AN ISSUE ON
WHICH THE REVIEWING COURT WOULD HAVE ARRIVED AT A DIFFERENT DECISION
DOES NOT IPSO FACTO MAKE
THE ARBITER AN OUTLAW OR HIS ERRONEOUS ACTION A MATTER OUTSIDE THE
SCOPE OF THE AGREEMENT TO
ARBITRATE, IN EXCESS OF THE TERMS OF THE SUBMISSION OR BEYOND HIS
POWERS AS AN
ARBITER. (CITATIONS AND FOOTNOTES OMITTED.)
OR, AS THE THIRD CIRCUIT HAS PUT IT: /7/
ACCORDINGLY, WE HOLD THAT A LABOR ARBITRATOR'S AWARD DOES "DRAW ITS
ESSENCE FROM THE
COLLECTIVE BARGAINING AGREEMENT" IF THE INTERPRETATION CAN IN ANY
RATIONAL WAY BE DERIVED FROM
THE AGREEMENT, VIEWED IN THE LIGHT OF ITS LANGUAGE, ITS CONTEST, AND
ANY OTHER INDICIA OF THE
PARTIES' INTENTION; ONLY WHERE THERE IS A MANIFEST DISREGARD OF THE
AGREEMENT, TOTALLY
UNSUPPORTED BY PRINCIPLES OF CONTRACT CONSTRUCTION AND THE LAW OF THE
SHOP, MAY A REVIEWING
COURT DISTURB THE AWARD. (FOOTNOTE OMITTED.)
OR, AS THE NINTH CIRCUIT HAS STATED: /8/
THEREFORE, IF, ON ITS FACE, THE AWARD REPRESENTS A PLAUSIBLE
INTERPRETATION OF THE CONTRACT
IN THE CONTEXT OF THE PARTIES' CONDUCT, JUDICIAL INQUIRY CEASES AND
THE AWARD MUST BE
AFFIRMED.
THESE PRINCIPLES ARE LIKEWISE APPLICABLE IN THE FEDERAL SECTOR UNDER
SECTION 2411.37(A) OF THE COUNCIL'S RULES AND REGULATIONS. /9/
IN ASSERTING THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY IN THIS CASE
BY HOLDING UNREASONABLE THE REQUIREMENT THAT CERTAIN EMPLOYEES ROTATE
BETWEEN THE DAY AND NIGHT SHIFTS, THE AGENCY RELIES PRINCIPALLY UPON ITS
VIEW THAT THE ARBITRATOR'S DETERMINATION CONFLICTS WITH THE COLLECTIVE
BARGAINING AGREEMENT BECAUSE, IN THE AGENCY'S WORDS, "(T)HERE IS NO TEST
OF 'REASONABLENESS' IN THE CONTRACT." IN OUR OPINION, HOWEVER, SINCE THE
ARBITRATOR CLEARLY FOUND THAT THERE IS SUCH A TEST OF REASONABLENESS IN
THE PARTIES' AGREEMENT, THE AGENCY, BY CONTENDING TO THE CONTRARY, IN
EFFECT SEEKS ONLY TO DISPUTE THE ARBITRATOR'S INTERPRETATION OF THAT
AGREEMENT. FOR THE REASONS WHICH FOLLOW, WE BELIEVE THE ARBITRATOR'S
INTERPRETATION MUST BE SUSTAINED.
THE GRIEVANCE HERE CENTERED UPON THE AGENCY'S DUTY UNDER SECTION 2 OF
ARTICLE XXI OF THE NEGOTIATED AGREEMENT TO "SHOW PROPER REGARD FOR THE
DIGNITY OF EMPLOYEES AND PROVIDE A WORK ENVIRONMENT THAT IS CONDUCIVE TO
GOOD WORKER MORALE." THE ARBITRATOR INTERPRETED THIS LANGUAGE TO
REQUIRE, WHEN APPLIED TO THE FACTS OF THIS CASE, THAT THE AGENCY ACT
REASONABLY IN ASSIGNING EMPLOYEES TO ROTATING SHIFTS-- A REQUIREMENT
WHICH IN THE ARBITRATOR'S JUDGMENT THE AGENCY FAILED TO MEET. ALTHOUGH
THE ARBITRATOR DID NOT DETAIL IN HIS OPINION THE REASONING UPON WHICH HE
RELIED IN ARRIVING AT THIS INTERPRETATION OF THE AGREEMENT, NOTHING
COMPELLED HIM TO DO SO. /10/ IT IS THE AWARD RATHER THAN THE CONCLUSION
OR THE SPECIFIC REASONING THAT IS SUBJECT TO CHALLENGE BEFORE THE
COUNCIL. /11/ WE CANNOT SAY FROM THE RECORD BEFORE US THAT THE
ARBITRATOR'S AWARD, BASED UPON HIS INTERPRETATION AND APPLICATION OF
THIS PARTICULAR PROVISION OF THE PARTIES' AGREEMENT, "IS SO PALPABLY
FAULTY THAT NO JUDGE, OR GROUP OF JUDGES, COULD EVER CONCEIVABLY HAVE
MADE SUCH A RULING" OR COULD NOT "IN ANY RATIONAL WAY BE DERIVED FROM
THE AGREEMENT" OR EVIDENCES "A MANIFEST DISREGARD OF THE AGREEMENT" OR
ON ITS FACE REPRESENTS AN IMPLAUSIBLE INTERPRETATION THEREOF.
THE PARTIES TO THIS CASE HAVE ADOPTED ARBITRATION AS THE FINAL STAGE
OF A NEGOTIATED PROCEDURE FOR RESOLVING GRIEVANCES OVER THE
INTERPRETATION OF THEIR AGREEMENT. THAT ONE OF THE PARTIES MAY
SUBSEQUENTLY DISAGREE WITH THE INTERPRETATION REACHED BY THE ARBITRATOR
IS BESIDE THE POINT; IT IS THE ARBITRATOR'S INTERPRETATION OF THE
AGREEMENT, AND NO ONE ELSE'S, FOR WHICH THE PARTIES HAVE BARGAINED AND
BY WHICH THEY HAVE AGREED TO BE BOUND. AND SO LONG AS IT APPEARS, AS
HERE, THAT THE PARTIES HAVE OBTAINED SUBSTANTIALLY THAT WHICH THEY
BARGAINED FOR, THE COUNCIL, CONSISTENT WITH THE CLEAR PRACTICE FOLLOWED
BY THE COURTS IN REVIEWING PRIVATE SECTOR ARBITRATION AWARDS, WILL NOT
INTERFERE WITH THE ARBITRATOR'S AWARD SOLELY BECAUSE OUR OWN
INTERPRETATION OF THE AGREEMENT MIGHT HAVE BEEN DIFFERENT. AS THE FIFTH
CIRCUIT HAS PUT IT SO WELL: /12/ "THE ARBITER WAS CHOSEN TO BE THE
JUDGE. THAT JUDGE HAS SPOKEN. THERE IT ENDS."
WE CONCLUDE, ACCORDINGLY, THAT THE ARBITRATOR'S INTERPRETATION OF THE
PROVISION IN DISPUTE DRAWS ITS ESSENCE FROM THE NEGOTIATED AGREEMENT,
AND WE HOLD THAT THE ARBITRATOR DID NOT EXCEED HIS AUTHORITY IN
DETERMINING THAT THE AGENCY ACTED UNREASONABLY.
FOR THE REASONS DISCUSSED ABOVE, WE FIND THAT THE ARBITRATOR DID NOT
EXCEED HIS AUTHORITY. PURSUANT TO SECTION 2411.37(B) OF THE COUNCIL'S
RULES AND REGULATIONS, WE THEREFORE SUSTAIN THE ARBITRATOR'S AWARD AND
VACATE THE STAY.
BY THE COUNCIL.
ISSUED: JULY 30, 1975
/1/ FOR REASONS NOT SIGNIFICANT TO THIS APPEAL, 3 OF THE 21 EMPLOYEES
THEN IN THE SHEET METAL SHOP WERE ALLOWED TO CONTINUE WORKING ON FIXED
SHIFTS.
/2/ THE AGENCY ALSO REQUESTED AND THE COUNCIL GRANTED, UNDER SECTION
2411.47(D) OF THE COUNCIL'S RULES AND REGULATIONS, A STAY PENDING THE
DETERMINATION OF THE APPEAL.
/3/ UNITED STEELWORKERS OF AMERICA V. ENTERPRISE WHEEL AND CAR CORP.,
363 U.S. 539 AT 599 (1960).
/4/ SEE, E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 2649 AND OFFICE OF ECONOMIC OPPORTUNITY (SISK, ARBITRATOR), FLRC
NO. 74A-17 (DECEMBER 5, 1974), REPORT NO. 61; AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 12 AND U.S. DEPARTMENT OF LABOR (DALY,
ARBITRATOR), FLRC NO. 72A-55 (SEPTEMBER 17, 1973), REPORT NO. 44.
/5/ 363 U.S. AT 597 (1960).
/6/ SAFEWAY STORES V. BAKERY WORKERS, LOCAL 111, 390 F.2D 79 AT 82
(5TH CIR. 1968). SEE ALSO IAM-AW, DISTRICT 145 V. MODERN AIR TRANSPORT,
INC., 495 F.2D 1241 (5TH CIR. 1974), CERT. DENIED, 419 U.S. 1050 (1974);
INTERNATIONAL UNION OF ELECTRICAL WORKERS V. PEERLESS PRESSED METAL
CORP., 489 F.2D 768 (1ST CIR. 1973); AMALGAMATED MEAT CUTTERS, LOCAL
540 V. NEUHOFF BROTHERS PACKERS, INC., 481 F.2D 817 (5TH CIR. 1973);
TEXTILE WORKERS UNION V. TEXTILE PAPER PRODUCTS, INC., 405 F.2D 397 (5TH
CIR. 1968); DALLAS TYPOGRAPHICAL UNION V. A. H. BELO CORP., 372 F.2D
577 (5TH CIR. 1967).
/7/ LUDWIG HONOLD MFG. CO. V. FLETCHER, 405 F.2D 1134 AT 1128 (3RD
CIR. 1969).
/8/ HOLLY SUGAR CORP. V. DISTILLERY WORKERS UNION, 412 F.2E 899 AT
903 (9TH CIR. 1969). SEE ALSO ROSSI V. TRANS WORLD AIRLINES, INC., 507
F.2D 404 (9TH CIR. 1974); SAN FRANCISCO-OAKLAND NEWSPAPER GUILD V.
TRIBUNE PUBLISHING CO., 407 F.2D 1327 (9TH CIR. 1969); ANACONDA CO. V.
GREAT FALLS MILL AND SMELTERMEN'S UNION 16, 402 F.2D 749 (9TH CIR.
1968).
/9/ CHARLESTON NAVAL SHIPYARD AND FEDERAL EMPLOYEES METAL TRADES
COUNCIL OF CHARLESTON (WILLIAMS, ARBITRATOR), FLRC NO. 75A-7 (JUNE 26,
1975), REPORT NO. 76.
/10/ SEE SMALL BUSINESS ADMINISTRATION AND AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2532 (KLEEB, ARBITRATOR), FLRC NO. 73A-44
(NOVEMBER 6, 1974), REPORT NO. 60.
/11/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 12 AND
U.S. DEPARTMENT OF LABOR (DALY, ARBITRATOR), FLRC NO. 72A-55 (SEPTEMBER
17, 1973), REPORT NO. 44.
/12/ SAFEWAY STORES V. BAKERY WORKERS, LOCAL 111, 390 F.2D 79 AT 84
(5TH CIR. 1968). SEE GENERALLY DUNAU, THREE PROBLEMS IN LABOR
ARBITRATION, 55 VA.L.REV. 427, 454 (1969).
3 FLRC 470; FLRC NO. 75A-54; JULY 24, 1975.
MR. R. J. ALFULTIS
DIRECTOR OF PERSONNEL
AND TRAINING
OFFICE OF THE SECRETARY OF
TRANSPORTATION
WASHINGTON, D.C. 20590
(SYNOPSIS) FLRC NO. 75A-54
FEDERAL AVIATION ADMINISTRATION, KANSAS CITY, MISSOURI AND
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION (YAROWSKY,
ARBITRATOR). THE ARBITRATOR DETERMINED THAT THE AGENCY VIOLATED THE
PARTIES' NEGOTIATED AGREEMENT, AS AMENDED BY THE AGENCY ORDER
INCORPORATED BY REFERENCE IN THE AGREEMENT, WITH RESPECT TO THE ADEQUACY
OF EMPLOYEE PARKING ACCOMODATIONS AND DIRECTED VARIOUS REMEDIAL ACTIONS.
THE AGENCY FILED EXCEPTIONS TO THE AWARD WITH THE COUNCIL, ALLEGING
THAT (1) THE ARBITRATOR EXCEEDED HIS AUTHORITY BY DETERMINING THE
ADEQUACY OF EMPLOYEE PARKING; AND (2) THE REMEDY FASHIONED BY THE
ARBITRATOR WOULD REQUIRE THE IMPROPER USE OF APPROPRIATED FUNDS.
COUNCIL ACTION (JULY 24, 1975). AS TO (1), THE COUNCIL DETERMINED
THAT THE SAME CIRCUMSTANCES EXIST IN THE INSTANT CASE AS WERE PRESENT IN
FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION AND
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION (SCHEDLER,
ARBITRATOR), FLRC NO. 74A-88, (REPORT NO. 78), AND, BASED ON ITS
DECISION IN THAT CASE WITH RESPECT TO A SIMILAR EXCEPTION, HELD THAT
THIS EXCEPTION DOES NOT PRESENT A GROUND UPON WHICH THE COUNCIL WILL
GRANT A PETITION FOR REVIEW OF AN ARBITRATION AWARD. AS TO (2), FOR THE
REASONS SET FORTH IN FEDERAL AVIATION ADMINISTRATION AND PROFESSIONAL
AIR TRAFFIC CONTROLLERS ORGANIZATION (MEBA, AFL-CIO) (HANLON,
ARBITRATOR), FLRC NO. 75A-9, (IN REPORT NO. 78), WITH REGARD TO A
SIMILAR EXCEPTION, THE COUNCIL HELD THAT THE AGENCY HAS NOT PROVIDED
SUFFICIENT FACTS AND CIRCUMSTANCES TO SUPPORT THIS EXCEPTION.
ACCORDINGLY, THE COUNCIL DENIED REVIEW OF THE AGENCY'S PETITION SINCE IT
FAILED TO MEET THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.32
OF THE COUNCIL'S RULES OF PROCEDURE (5 CFR 2411.32). THE COUNCIL ALSO
DENIED THE AGENCY'S REQUEST FOR A STAY UNDER SECTION 2411.47(D) OF THE
COUNCIL'S RULES (5 CFR 2411.47(D)).
DEAR MR. ALFULTIS:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF AN
ARBITRATOR'S AWARD, AND THE UNION'S OPPOSITION THERETO, FILED IN THE
ABOVE-ENTITLED CASE.
AS STATED IN THE AWARD, AIR TRAFFIC CONTROLLERS WERE PROVIDED WITH
FREE PARKING FOR THEIR PRIVATELY OWNED VEHICLES AT THE SHORT-AND
LONG-TERM PARKING LOTS IMMEDIATELY EAST OF THE DES MOINES AIR TERMINAL,
ALONG WITH REGULAR AIRLINE CUSTOMERS, UNTIL THE AIRPORT AUTHORITY
"PEREMPTORILY RELOCATED EMPLOYEE PARKING TO A MORE REMOTE AREA . . .
THAT WAS UNUSUALLY MAKESHIFT . . . RESERVED FOR FUTURE CONSTRUCTION OF A
CARGO AREA." THE DISTANCE FROM THE RELOCATED PARKING LOT TO THE TERMINAL
VARIES BETWEEN 1350 AND 1850 FEET, DEPENDING ON WHICH TERMINAL ENTRANCE
THE AIR TRAFFIC CONTROLLER USES. THE AGENCY DELAYED THE ACTUAL MOVE FOR
SEVERAL MONTHS "BY REMONSTRATING WITH THE AUTHORITY, WRITING NUMEROUS
LETTERS AND ATTENDING CONFERENCES BUT ALL TO NO AVAIL." THE AGENCY'S
REGIONAL DIRECTOR MADE A DETERMINATION THAT THE RELOCATED PARKING WAS
"INADEQUATE BECAUSE OF ITS POOR CONDITION AND CONSIDERABLE DISTANCE."
VARIOUS IMPROVEMENTS WERE UNDERTAKEN IN RESPECT TO LIGHTS, FENCING,
PATROLLING, CONSTRUCTING A WALKWAY, SURFACING AND SNOW REMOVAL. ALSO,
EMPLOYEES ON SHIFTS BEGINNING OR ENDING BETWEEN 10 P.M. AND 9 A.M. WERE
PERMITTED TO PARK THEIR PRIVATELY OWNED VEHICLES ON THE REGULAR AIRLINE
CUSTOMER PARKING LOTS WITHOUT CHARGE. THE UNION FILED A GRIEVANCE
ALLEGING THAT THE PARKING FACILITIES CONTINUED TO BE "INADEQUATE" ON THE
BASIS THAT "ARTICLE 47 /1/ OF THE CURRENT AGREEMENT PROVIDES THIS
WORKING CONDITION AS A PERQUISITE OF THE AIR TRAFFIC CONTROLLER'S
CLASSIFICATION WHICH ARTICLE IS ADMINISTRATIVELY IMPLEMENTED BY AGENCY
POLICY ORDER 4665.3A." /2/ IN RESPONSE TO THE GRIEVANCE, THE REGIONAL
DIRECTOR MADE A DETERMINATION THAT THE PARKING FACILITIES, AS IMPROVED,
WERE "ADEQUATE" AND MEASURED UP TO THE REQUIREMENTS OF THE AGREEMENT AND
FAA ORDER 4665.3A. THE PARTIES ULTIMATELY SUBMITTED THE GRIEVANCE TO
ARBITRATION. THE SPECIFIC RELIEF REQUESTED FROM THE ARBITRATOR BY THE
UNION WAS "AUTHORIZATION OF THE EXPENDITURE OF AGENCY FUNDS TO PAY FOR
PRIVATE VEHICLE PARKING AT THE REGULAR TERMINAL LOTS 'UNTIL SUCH TIME AS
ADEQUATE PARKING ACCOMMODATIONS CAN BE OBTAINED AT THE NEW TOWER
PRESENTLY UNDER CONSTRUCTION,'" ESTIMATED TO BE JULY 1, 1976.
THE ARBITRATOR DETERMINED THAT "THE PARKING ACCOMMODATION AT THE DES
MOINES TERMINAL IS NOT IN ACCORD WITH THE EXPLICIT CONTRACTUAL
PROVISIONS OF THE AGREEMENT AS AMENDED BY FAA ORDER 4665.3A," AND
SUSTAINED THE GRIEVANCE. AS A REMEDY, THE ARBITRATOR DIRECTED THAT HIS
AWARD BE IMPLEMENTED AS FOLLOWS:
AIR CONTROLLERS WORKING DURING PERIODS WHEN FREE PARKING AT THE
REGULAR AIRPORT PARKING
LOTS IS NOT AVAILABLE, ARE TO BE PERMITTED ON A VOLUNTARY BASIS, TO
PARK AT THE REGULAR
PASSENGER PARKING LOTS EAST OF THE TERMINAL. IF AN EMPLOYEE ELECTS
TO AVAIL HIMSELF OF THIS
AWARD, HE SHALL NOTIFY THE AGENCY OF HIS ELECTION IN ADVANCE OF HIS
USE OF THE FACILITY AND HE
SHALL BE REQUIRED TO PAY AN AMOUNT NOT TO EXCEED $10.00 PER MONTH FOR
PARKING HIS PRIVATE
VEHICLE AT THE REGULAR CUSTOMER PARKING LOTS. THE AGENCY IS REQUESTED
TO SUPPLEMENT THIS
PAYMENT IN WHATEVER AMOUNT MAY BE REQUIRED TO PAY THE OPERATOR OF THE
PARKING LOTS FOR PARKING
THE EMPLOYEE'S PRIVATE VEHICLE.
THIS ARRANGEMENT IS TO CONTINUE FROM MONTH TO MONTH DURING THE TERM
OF THE CURRENT
AGREEMENT AND IS TO CEASE UPON THE COMPLETION OF THE NEW TOWER
PRESENTLY BEING BUILT AT THE
DES MOINES AIR TERMINAL WHEN FREE EMPLOYEE PARKING WILL BE MADE
AVAILABLE TO GRIEVANTS. SHOULD
EITHER PARTY OBJECT TO THE SUGGESTED REASONABLE COST OF $10.00 PER
MONTH FOR PARKING OF
PRIVATE VEHICLES, THE ARBITRATOR HEREBY RETAINS POST-AWARD
JURISDICTION TO RECEIVE EVIDENCE ON
THIS ISSUE AND TO RENDER AN AWARD ON THIS ASPECT OF IMPLEMENTATION.
(EMPHASIS ADDED BY
ARBITRATOR.)
THE AGENCY REQUESTS THAT THE COUNCIL ACCEPT ITS PETITION FOR REVIEW
OF THE ARBITRATOR'S AWARD ON THE BASIS OF ITS TWO EXCEPTIONS DISCUSSED
BELOW.
UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE, REVIEW OF
AN ARBITRATION AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON
THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE
EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES
APPLICABLE LAW, APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS
SIMILAR TO THOSE UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE
SUSTAINED BY COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS."
THE AGENCY'S FIRST EXCEPTION CONTENDS THAT THE ARBITRATOR EXCEEDED
HIS AUTHORITY UNDER ARTICLE 47 OF THE NEGOTIATED AGREEMENT. THE AGENCY
MAINTAINS THAT ONCE THE REGIONAL DIRECTOR MADE A DETERMINATION THAT
PARKING WAS ADEQUATE, AFTER CONSIDERING FACTORS CONTAINED IN PARAGRAPH
5.B. OF THE AGENCY ORDER, THEN THE ORDER AND SECTION 3 OF ARTICLE 47 OF
THE NEGOTIATED AGREEMENT HAD BEEN COMPLIED WITH AND THE ADEQUACY
QUESTION WAS DISPOSED OF AND NOT BEFORE THE ARBITRATOR. FURTHER,
ACCORDING TO THE AGENCY, THE UNION, IN AGREEING THAT THE AGENCY ORDER
WOULD GOVERN PARKING ACCOMMODATIONS, THEREBY AGREED TO ALL ELEMENTS OF
THAT ORDER WHICH INCLUDED THE STIPULATION THAT THE REGIONAL DIRECTOR
WOULD BE THE SOLE DETERMINER OF ADEQUACY. HENCE, THE AGENCY ASSERTS,
THE ARBITRATOR WENT OUTSIDE THE PROVISIONS OF THE AGREEMENT BY TAKING
UNTO HIMSELF THE DETERMINATION OF ADEQUACY WHEN, IN FACT, THE PARTIES
HAD AGREED THAT THIS RESPONSIBILITY RESTED WITH THE REGIONAL DIRECTOR.
ON THIS DATE, THE COUNCIL HAS DENIED REVIEW OF THE AGENCY'S PETITION
IN FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION AND
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION (SCHEDLER,
ARBITRATOR), FLRC NO. 74A-88. THERE, AS HERE, THE ARBITRATOR DETERMINED
THAT THE AGENCY HAD VIOLATED THE SAME NEGOTIATED AGREEMENT AND AGENCY
ORDER WITH RESPECT TO THE ADEQUACY OF EMPLOYEE PARKING. UNDER THE
CIRCUMSTANCES OF THAT CASE, THE COUNCIL DETERMINED THAT THE ARBITRATOR
HAS THE AUTHORITY TO INTERPRET AND APPLY THE PROVISIONS OF THE FAA ORDER
AS IF THE PROVISIONS OF THE AGENCY ORDER WERE PROVISIONS OF THE
NEGOTIATED AGREEMENT ITSELF. AS INDICATED, THE SAME CIRCUMSTANCES EXIST
IN THE INSTANT CASE. THUS, THE AGENCY'S FIRST EXCEPTION DOES NOT
PRESENT A GROUND UPON WHICH THE COUNCIL WILL GRANT A PETITION FOR REVIEW
OF AN ARBITRATION AWARD.
THE AGENCY'S SECOND EXCEPTION CONTENDS THAT THE REMEDY FASHIONED BY
THE ARBITRATOR WOULD REQUIRE THE IMPROPER USE OF APPROPRIATED FUNDS. IN
SUPPORT OF THIS EXCEPTION, THE AGENCY ALLEGES THAT THE CRITERIA SET
FORTH IN TWO COMPTROLLER GENERAL DECISIONS (43 COMP.GEN. 131 AND 49
COMP.GEN. 476) AND GSA ORDER 7030.2C HAVE NOT BEEN MET IN THE INSTANT
CASE. FOR REASONS SET FORTH IN FEDERAL AVIATION ADMINISTRATION AND
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION (MEBA, AFL-CIO)
(HANLON, ARBITRATOR), FLRC NO. 75A-9, ALSO DECIDED THIS DATE, IT IS THE
COUNCIL'S OPINION THAT THE APPLICABILITY OF THE GSA ORDER AND THE TWO
CITED COMPTROLLER GENERAL DECISIONS HAS NOT BEEN DEMONSTRATED BY THE
AGENCY IN ITS PETITION FOR REVIEW. THE COUNCIL IS THEREFORE OF THE
OPINION THAT THE AGENCY HAS NOT PROVIDED SUFFICIENT FACTS AND
CIRCUMSTANCES TO SUPPORT THIS EXCEPTION, AS REQUIRED BY SECTION 2411.32
OF THE COUNCIL'S RULES OF PROCEDURE.
ACCORDINGLY, THE COUNCIL HAS DENIED REVIEW OF THE AGENCY'S PETITION
BECAUSE IT FAILS TO MEET THE REQUIREMENTS FOR REVIEW SET FORTH IN
SECTION 2411.32 OF ITS RULES OF PROCEDURE. LIKEWISE, THE AGENCY'S
REQUEST FOR A STAY IS DENIED UNDER SECTION 2411.47(D) OF THE COUNCIL'S
RULES.
BY THE COUNCIL.
CC: W. B. PEER
PATCO
/1/ ARTICLE 47 OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT READS
IN FULL AS FOLLOWS:
SECTION 1. THE EMPLOYER WILL PROVIDE ADEQUATE EMPLOYEE PARKING
ACCOMMODATIONS AT FAA OWNED
OR LEASED AIR TRAFFIC FACILITIES WHERE FAA CONTROLS THE PARKING
FACILITIES. THIS SPACE WILL
BE EQUITABLY ADMINISTERED AMONG EMPLOYEES IN THE BARGAINING UNIT,
EXCLUDING SPACES RESERVED
FOR GOVERNMENT CARS AND VISITORS. THERE MAY BE A MAXIMUM OF THREE
RESERVED SPACES AT EACH
FACILITY WHERE SUCH SPACES ARE AVAILABLE EXCEPT AT FACILITIES WHERE
THERE ARE EMPLOYEES WITH
BONAFIDE PHYSICAL HANDICAPS. AT OTHER AIR TRAFFIC FACILITIES, THE
EMPLOYER WILL ENDEAVOR TO
OBTAIN PARKING ACCOMMODATIONS AT LEAST EQUAL TO THOSE PROVIDED THE
EMPLOYEES OF THE AIRPORT
OWNER OR OPERATOR.
SECTION 2. AT PARKING FACILITIES UNDER THE CONTROL OF FAA, THE
EMPLOYER WILL INSURE THAT
EMPLOYEES HAVE PROMPT ACCESS TO AND FROM THE PARKING FACILITIES.
SECTION 3. PARKING ACCOMMODATIONS AT FAA OCCUPIED BUILDINGS AND
FACILITIES WILL BE
GOVERNED BY LAW, REGULATION AND AGENCY ORDER 4665.3A.
/2/ FAA ORDER 4665.3A WHICH IS INCORPORATED BY REFERENCE IN ARTICLE
47, SECTION 3 OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT WAS
ENCLOSED AS AN APPENDIX TO THE COUNCIL'S DECISION LETTER IN FEDERAL
AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION AND PROFESSIONAL
AIR TRAFFIC CONTROLLERS ORGANIZATION (SCHEDLER, ARBITRATOR), FLRC NO.
74A-88, WHICH WAS ISSUED ON THIS DATE.
3 FLRC 466; FLRC NO. 75A-15; JULY 24, 1975.
MR. R. J. ALFULTIS
DIRECTOR OF PERSONNEL
AND TRAINING
OFFICE OF THE SECRETARY OF
TRANSPORTATION
WASHINGTON, D.C. 20590
(SYNOPSIS) FLRC NO. 75A-15
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION AND FEDERAL
AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION (EIGENBROD,
ARBITRATOR). THE ARBITRATOR DETERMINED THAT THE AGENCY VIOLATED AN
AGENCY ORDER INCORPORATED BY REFERENCE IN THE PARTIES' NEGOTIATED
AGREEMENT, WITH RESPECT TO THE ADEQUACY OF EMPLOYEE PARKING
ACCOMODATIONS, AND PROVIDED FOR REMEDIAL STEPS TO BE TAKEN BY THE
AGENCY. THE AGENCY EXCEPTED TO THE AWARD, ALLEGING THAT THE ARBITRATOR
EXCEEDED HIS AUTHORITY BY SUBSTITUTING HIS JUDGMENT FOR THAT OF THE
AGENCY.
COUNCIL ACTION (JULY 24, 1975). THE COUNCIL DETERMINED THAT THE SAME
CIRCUMSTANCES EXIST IN THIS CASE AS WERE PRESENT IN FEDERAL AVIATION
ADMINISTRATION, DEPARTMENT OF TRANSPORTATION AND PROFESSIONAL AIR
TRAFFIC CONTROLLERS ORGANIZATION (SCHEDLER, ARBITRATOR), FLRC NO.
74A-88, (REPORT NO. 78), AND, BASED ON ITS DECISION IN THAT CASE WITH
REGARD TO A SIMILAR EXCEPTION, HELD THAT THE AGENCY'S EXCEPTION DOES NOT
PRESENT A GROUND UPON WHICH THE COUNCIL WILL GRANT A PETITION FOR REVIEW
OF AN ARBITRATION AWARD. ACCORDINGLY, THE COUNCIL DENIED THE AGECY'S
PETITION FOR REVIEW SINCE IT FAILED TO MEET THE REQUIREMENTS FOR REVIEW
SET FORTH IN SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE (5 CFR
2411.32). THE COUNCIL ALSO DENIED THE AGENCY'S REQUEST FOR A STAY UNDER
SECTION 2411.47(D) OF THE COUNCIL'S RULES (5 CFR 2411.47(D)).
DEAR MR. ALFULTIS:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF AN
ARBITRATOR'S AWARD, AND THE UNION'S OPPOSITION THERETO, FILED IN THE
ABOVE-ENTITLED CASE.
ACCORDING TO THE AWARD, THE PARTIES SUBMITTED TO ARBITRATION A
GRIEVANCE WHICH ALLEGED THAT, "(A)DEQUATE PARKING AS DEFINED IN FAA
ORDER 4665.3A AND PATCO/FAA AGREEMENT IS NOT PROVIDED FOR EMPLOYEES
PARKING AT BIRMINGHAM MUNICIPAL AIRPORT . . . "
THE ARBITRATOR FORMULATED THE ISSUE, AS SUGGESTED BY THE AGENCY, IN
TWO PARTS:
A) IS BIRMINGHAM TOWER REQUIRED BY THE PATCO/FAA AGREEMENT AND/OR FAA
ORDER 4665.3A /1/ TO
GUARANTEE ANY SPECIFIC PARKING ACCOMMODATIONS TO ITS EMPLOYEES?
B) WHAT OBLIGATIONS ARE IMPOSED ON THE AGENCY WITH REGARD TO PARKING
ACCOMMODATIONS AT
BIRMINGHAM TOWER BY ARTICLE 47 /2/ OF THE FAA/PATCO AGREEMENT AND FAA
ORDER 4665.3A, AND HAVE
THESE OBLIGATIONS BEEN MET?
THE ARBITRATOR DETERMINED THAT, "(T)HE ANSWER MUST BE THAT THOSE
PROVISIONS OF ORDER 4665.3A BE COMPLIED WITH INSOFAR AS REASONABLY
POSSIBLE BY THE AGENCY AND THAT THE AGENCY TAKE ANY AND ALL REMEDIAL
STEPS AFFORDED TO IT BY LAW TO ENABLE IT TO SO COMPLY." AS A REMEDY, THE
ARBITRATOR ORDERED THAT:
(1) THE AGENCY PROVIDE "ADEQUATE PARKING WITHIN 500 FEET OF THE WORK
AREA. (ADEQUATE
PARKING DEFINED AS A PAVED AREA WITH PAVED OR DRY WALKWAYS.)"
(2) (S)OME MEANS OF PROTECTION TO THOSE CROSSING THE STREETS BE
AFFORDED AS CAN BE AGREED
ON BY THE AGENCY AND THE CITY OF BIRMINGHAM.
(3) (T)HE AGENCY TAKE THOSE STEPS AFFORDED BY LAW TO CARRY OUT ITS
ORDER NO. 4665.3A AND
THAT AGREEMENT BETWEEN THE AGENCY AND THE PROFESSIONAL AIR TRAFFIC
CONTROL (CIS) ORGANIZATION.
THE AGENCY REQUESTS THAT THE COUNCIL ACCEPT ITS PETITION FOR REVIEW
OF THE ARBITRATOR'S AWARD ON THE BASIS OF ONE EXCEPTION DISCUSSED BELOW.
UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE, REVIEW OF
AN ARBITRATION AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON
THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE
EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES
APPLICABLE LAW, APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS
SIMILAR TO THOSE UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE
SUSTAINED BY COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS."
THE AGENCY'S EXCEPTION CONTENDS THE ARBITRATOR EXCEEDED HIS AUTHORITY
UNDER ARTICLE 47, SECTION 3 OF THE NEGOTIATED AGREEMENT IN THAT HE
"SUBSTITUTED HIS JUDGMENT FOR THAT OF THE REGIONAL DIRECTOR, IN BOTH HIS
DECISION AND HIS REMEDY." THE AGENCY MAINTAINS THAT ONCE THE REGIONAL
DIRECTOR HAD, PURSUANT TO THE RESPONSIBILITY RESERVED TO HIM BY
PARAGRAPH 5 OF THE AGENCY ORDER 4665.3A, DETERMINED THAT THE PARKING
ACCOMMODATIONS AT THE BIRMINGHAM AIRPORT WERE ADEQUATE, THE REQUIREMENTS
OF THE AGENCY ORDER AND ARTICLE 47, SECTION 3 OF THE NEGOTIATED
AGREEMENT HAD BEEN MET, AND THE QUESTION OF ADEQUACY WAS THUS DISPOSED
OF AND NOT BEFORE THE ARBITRATOR. THAT IS, THE UNION AGREED THAT
PARKING ACCOMMODATIONS WOULD BE GOVERNED BY FAA ORDER 4665.3A, THEREBY
AGREEING TO "ALL ELEMENTS OF THAT ORDER WHICH INCLUDED THE STIPULATION
THAT THE REGIONAL DIRECTOR WOULD BE THE SOLE DETERMINER OF ADEQUACY."
ON THIS DATE, THE COUNCIL HAS DENIED REVIEW OF THE AGENCY'S PETITION
IN FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION AND
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION (SCHEDLER,
ARBITRATOR), FLRC NO. 74A-88. THERE, AS HERE, THE ARBITRATOR DETERMINED
THAT THE AGENCY HAD VIOLATED THE SAME NEGOTIATED AGREEMENT AND AGENCY
ORDER WITH RESPECT TO THE ADEQUACY OF EMPLOYEE PARKING. UNDER THE
CIRCUMSTANCES OF THAT CASE, THE COUNCIL DETERMINED THAT THE ARBITRATOR
HAS THE AUTHORITY TO INTERPRET AND APPLY THE PROVISIONS OF FAA ORDER
4665.3A AS IF THE PROVISIONS OF THE AGENCY ORDER WERE PROVISIONS OF THE
NEGOTIATED AGREEMENT ITSELF. AS INDICATED, THE SAME CIRCUMSTANCES EXIST
IN THE INSTANT CASE. THUS, THE AGENCY'S EXCEPTION DOES NOT PRESENT A
GROUND UPON WHICH THE COUNCIL WILL GRANT A PETITION FOR REVIEW OF AN
ARBITRATION AWARD.
ACCORDINGLY, THE COUNCIL HAS DENIED REVIEW OF THE AGENCY'S PETITION
BECAUSE IT FAILS TO MEET THE REQUIREMENTS FOR REVIEW SET FORTH IN
SECTION 2411.32 OF ITS RULES OF PROCEDURE. LIKEWISE, THE AGENCY'S
REQUEST FOR A STAY IS DENIED UNDER SECTION 2411.47(D) OF THE COUNCIL'S
RULES.
BY THE COUNCIL.
CC: W. B. PEER
PATCO
/1/ FAA ORDER 4665.3A WHICH IS INCORPORATED BY REFERENCE IN ARTICLE
47, SECTION 3 OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT WAS
ENCLOSED AS AN APPENDIX TO THE COUNCIL'S DECISION LETTER IN FEDERAL
AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION AND PROFESSIONAL
AIR TRAFFIC CONTROLLERS ORGANIZATION (SCHEDLER, ARBITRATOR), FLRC NO.
74A-88, WHICH WAS ISSUED ON THIS DATE.
/2/ ARTICLE 47 OF THE AGREEMENT READS IN FULL AS FOLLOWS:
SECTION 1. THE EMPLOYER WILL PROVIDE ADEQUATE EMPLOYEE PARKING
ACCOMMODATIONS AT FAA OWNED
OR LEASED AIR TRAFFIC FACILITIES WHERE FAA CONTROLS THE PARKING
FACILITIES. THIS SPACE WILL
BE EQUITABLY ADMINISTERED AMONG EMPLOYEES IN THE BARGAINING UNIT
EXCLUDING SPACES RESERVED FOR
GOVERNMENT CARS AND VISITORS. THERE MAY BE A MAXIMUM OF THREE
RESERVED SPACES AT EACH
FACILITY WHERE SUCH SPACES ARE AVAILABLE EXCEPT AT FACILITIES WHERE
THERE ARE EMPLOYEES WITH
BONAFIDE PHYSICAL HANDICAPS. AT OTHER AIR TRAFFIC FACILITIES, THE
EMPLOYER WILL ENDEAVOR TO
OBTAIN PARKING ACCOMMODATIONS AT LEAST EQUAL TO THOSE PROVIDED THE
EMPLOYEES OF THE AIRPORT
OWNER OR OPERATOR.
SECTION 2. AT PARKING FACILITIES UNDER THE CONTROL OF FAA, THE
EMPLOYER WILL INSURE THAT
EMPLOYEES HAVE PROMPT ACCESS TO AND FROM THE PARKING FACILITIES.
SECTION 3. PARKING ACCOMMODATIONS AT FAA OCCUPIED BUILDINGS AND
FACILITIES WILL BE
GOVERNED BY LAW, REGULATION AND AGENCY ORDER 4665.3A.
3 FLRC 461; FLRC NO. 75A-9; JULY 24, 1975.
MR. R. J. ALFULTIS
DIRECTOR OF PERSONNEL
AND TRAINING
OFFICE OF THE SECRETARY OF
TRANSPORTATION
WASHINGTON, D.C. 20590
(SYNOPSIS) FLRC NO. 75A-9
FEDERAL AVIATION ADMINISTRATION AND PROFESSIONAL AIR TRAFFIC
CONTROLLERS ORGANIZATION (MEBA, AFL-CIO) (HANLON, ARBITRATOR). THE
ARBITRATOR DETERMINED THAT THE AGENCY VIOLATED THE PARTIES' AGREEMENT,
AND AN AGENCY ORDER INCORPORATED BY REFERENCE IN THE AGREEMENT, WITH
RESPECT TO THE ADEQUACY OF EMPLOYEE PARKING ACCOMODATIONS. AS A REMEDY,
THE ARBITRATOR DIRECTED THAT THE AGENCY OBTAIN AND PROVIDE FREE PARKING
ACCOMODATIONS FOR ALL EMPLOYEES UNDER THE AGREEMENT AT EITHER OF TWO
LOCATIONS AT THE FACILITY INVOLVED. THE AGENCY FILED EXCEPTIONS TO THE
AWARD WITH THE COUNCIL, ALLEGING (1) THE ARBITRATOR EXCEEDED HIS
AUTHORITY IN DETERMINING THE ADEQUACY OF PARKING ACCOMODATIONS PROVIDED
FOR EMPLOYEES; AND (2) THE REMEDY FASHIONED BY THE ARBITRATOR WOULD
REQUIRE THE IMPROPER USE OF APPROPRIATED FUNDS.
COUNCIL ACTION (JULY 24, 1975). AS TO (1), THE COUNCIL DETERMINED
THAT THE SAME CIRCUMSTANCES EXIST IN THE INSTANT CASE AS WERE PRESENT IN
FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION AND
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION (SCHEDLER,
ARBITRATOR), FLRC NO. 74A-88, (REPORT NO. 78), AND, BASED ON ITS
DECISION IN THAT CASE WITH REGARD TO A SIMILAR EXCEPTION, HELD THAT THIS
EXCEPTION DOES NOT PRESENT A GROUND UPON WHICH THE COUNCIL WILL GRANT A
PETITION FOR REVIEW OF AN ARBITRATION AWARD. AS TO (2), BASED ON ITS
DECISION IN FEDERAL AVIATION ADMINISTRATION, U.S. DEPARTMENT OF
TRANSPORTATION, AND NATIONAL ASSOCIATION OF AIR TRAFFIC SPECIALISTS, DES
MOINES, IOWA, FLIGHT SERVICE STATION (HATCHER, ARBITRATOR), FLRC NO.
73A-50 (REPORT NO. 52), THE COUNCIL HELD THAT THE AGENCY DID NOT PROVIDE
SUFFICIENT FACTS AND CIRCUMSTANCES TO SUPPORT THIS EXCEPTION.
ACCORDINGLY, THE COUNCIL DENIED THE AGENCY'S PETITION FOR REVIEW SINCE
IT FAILED TO MEET THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION
2411.32 OF THE COUNCIL'S RULES OF PROCEDURE (5 CFR 2411.32). THE
COUNCIL ALSO DENIED THE AGENCY'S REQUEST FOR A STAY UNDER SECTION
2411.47(D) OF ITS RULES (5 CFR 2411.47(D)).
DEAR MR. ALFULTIS:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF AN
ARBITRATOR'S AWARD, AND THE UNION'S OPPOSITION THERETO, FILED IN THE
ABOVE-ENTITLED CASE.
THE ARBITRATOR IN HIS DECISION STATED THAT, WHILE THE PARTIES DID NOT
SUBMIT A FORMALIZED STATEMENT OF THE ISSUE TO BE DECIDED, BASED UPON THE
EVIDENCE SUBMITTED, THE ISSUE COULD FAIRLY BE STATED AS FOLLOWS:
ARE THE PARKING ACCOMMODATIONS PRESENTLY PROVIDED FOR THE EMPLOYEES
AT THE PORTLAND, OREGON
AIRPORT IN COMPLIANCE WITH THE REQUIREMENTS OF THE APPLICABLE
COLLECTIVE BARGAINING
AGREEMENT? IF THE QUESTION IS ANSWERED IN THE NEGATIVE, WHAT IS THE
APPROPRIATE REMEDY?
ACCORDING TO THE ARBITRATOR, APPROXIMATELY 18 PARKING SPACES
IMMEDIATELY ADJACENT TO THE TERMINAL BUILDING AT THE PORTLAND AIRPORT
PRESENTLY ARE RESERVED FOR FAA OFFICIAL PARKING OR AIRPORT MANAGEMENT
PARKING. THE EMPLOYEES INVOLVED IN THIS DISPUTE ARE PRESENTLY FURNISHED
PARKING FACILITIES FREE OF CHARGE IN A PARKING LOT KNOWN AS THE
"EMPLOYEE PARKING LOT." THESE FACILITIES MAY REQUIRE AN EMPLOYEE TO WALK
FROM THE LOT TO THE TERMINAL BUILDING, DISTANCES BETWEEN A MINIMUM OF
APPROXIMATELY 1465 FEET TO A MAXIMUM OF APPROXIMATELY 2065 FEET,
DEPENDING UPON WHETHER THE EMPLOYEE IS ABLE TO OBTAIN A PARKING SPACE AT
THE MOST FAVORABLE END OR THE LEAST ADVANTAGEOUS END OF THE LOT.
BETWEEN 420 AND 1020 FEET OF THESE DISTANCES IS COMPLETELY EXPOSED TO
THE WEATHER.
THE ARBITRATOR FOUND THAT, "(T)HE IMPORTANT (AGREEMENT) PROVISIONS TO
BE CONSIDERED ARE THE LAST SENTENCE OF SECTION 1 OF ARTICLE 47 /1/
PROVIDING THAT 'THE EMPLOYER WILL ENDEAVOR TO OBTAIN PARKING
ACCOMMODATIONS AT LEAST EQUAL TO THOSE PROVIDED THE EMPLOYEES OF THE
AIRPORT OWNER OR OPERATOR' AND SECTION 3 WHICH INCORPORATES BY REFERENCE
AGENCY ORDER 4665.3A." /2/ (FOOTNOTES SUPPLIED.) THE ARBITRATOR FURTHER
FOUND THAT, "(T)HE IMPORTANT PROVISIONS OF THE (FAA) ORDER IN TURN
APPEAR IN PARAGRAPH 5 DEALING WITH FACTORS TO BE CONSIDERED IN
DETERMINING ADEQUACY OF PARKING."
THE FIRST QUESTION CONSIDERED BY THE ARBITRATOR WAS "WHETHER THE
PARKING ACCOMMODATIONS FURNISHED TO THESE EMPLOYEES ARE 'AT LEAST EQUAL
TO THOSE PROVIDED THE EMPLOYEES OF THE AIRPORT OWNER/OPERATOR.'" THE
ARBITRATOR DETERMINED THAT, "THE ADMINISTRATION HAS NOT MET THE STANDARD
REQUIRED IN SECTION 1 OF ARTICLE 47 AND IN PARAGRAPH 5(B)(1) OF THE
AGENCY ORDER." TURNING TO PARAGRAPH 5.B.(2) OF THE AGENCY ORDER, THE
ARBITRATOR DETERMINED THAT THE AGENCY HAD EXCEEDED BY FOUR TIMES THE
GENERAL STANDARD ESTABLISHED BY PARAGRAPH 5.B.(2) THAT A REASONABLE
DISTANCE TO WALK IS 500 FEET. AS A REMEDY, THE ARBITRATOR ORDERED THE
AGENCY TO "PROMPTLY TAKE STEPS TO OBTAIN AND PROVIDE FREE PARKING
ACCOMMODATIONS TO ALL EMPLOYEES WORKING UNDER THIS AGREEMENT AT THE
PORTLAND AIRPORT IN EITHER THE SHORT TERM PARKING LOCATION OR THE
PROPOSED RENTAL CAR PARKING LOT."
THE AGENCY REQUESTS THAT THE COUNCIL ACCEPT ITS PETITION FOR REVIEW
OF THE ARBITRATOR'S AWARD ON THE BASIS OF ITS TWO EXCEPTIONS DISCUSSED
BELOW.
UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE, REVIEW OF
AN ARBITRATION AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON
THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE
EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES
APPLICABLE LAW, APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS
SIMILAR TO THOSE UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE
SUSTAINED BY COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS."
THE AGENCY'S FIRST EXCEPTION CONTENDS THAT THE ARBITRATOR EXCEEDED
HIS AUTHORITY UNDER ARTICLE 47 OF THE PARTIES' NEGOTIATED AGREEMENT.
THE AGENCY CONTENDS THAT, "(T)HE ARBITRATOR WENT OUTSIDE THE FOUR
CORNERS OF THE PROVISIONS OF THE AGREEMENT BY TAKING UNTO HIMSELF THE
DETERMINATION OF ADEQUACY WHEN, IN FACT, THE PARTIES HAD AGREED THAT
THIS RESPONSIBILITY RESTED WITH THE REGIONAL DIRECTOR." THAT IS,
ALTHOUGH THE ARBITRATOR MAY DISAGREE WITH THE REGIONAL DIRECTOR'S
DETERMINATION OF ADEQUACY, HE MUST NEVERTHELESS RECOGNIZE THAT THE
AGENCY ORDER RESERVES TO THE REGIONAL DIRECTOR THE RIGHT TO MAKE THAT
DETERMINATION. TO DO OTHERWISE, THE AGENCY ALLEGES, WOULD VIOLATE THE
TERMS OF THE AGREEMENT.
ON THIS DATE, THE COUNCIL HAS DENIED REVIEW OF THE AGENCY'S PETITION
IN FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION AND
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION (SCHEDLER,
ARBITRATOR), FLRC NO. 74A-88. THERE, AS HERE, THE ARBITRATOR DETERMINED
THAT THE AGENCY VIOLATED THE SAME NEGOTIATED AGREEMENT AND AGENCY ORDER
WITH RESPECT TO THE ADEQUACY OF EMPLOYEE PARKING. UNDER THE
CIRCUMSTANCES OF THAT CASE, THE COUNCIL DETERMINED THAT THE ARBITRATOR
HAS THE AUTHORITY TO INTERPRET AND APPLY THE PROVISIONS OF FAA ORDER
4665.3A AS IF THE PROVISIONS OF THE AGENCY ORDER WERE PROVISIONS OF THE
NEGOTIATED AGREEMENT ITSELF. AS INDICATED, THE SAME CIRCUMSTANCES EXIST
IN THE INSTANT CASE. THUS, THE AGENCY'S EXCEPTION DOES NOT PRESENT A
GROUND UPON WHICH THE COUNCIL WILL GRANT A PETITION FOR REVIEW OF AN
ARBITRATION AWARD.
THE AGENCY'S SECOND EXCEPTION CONTENDS THAT, "(T)HE REMEDY FASHIONED
BY THE ARBITRATOR WOULD REQUIRE THE IMPROPER USE OF APPROPRIATED FUNDS."
IN SUPPORT OF THIS EXCEPTION, THE AGENCY ALLEGES THAT THE CRITERIA SET
FORTH IN GSA ORDER 7030.2C AND IN TWO DECISIONS OF THE COMPTROLLER
GENERAL (43 COMP.GEN. 131 (1963) AND 49 COMP.GEN. 476 (1970) HAVE NOT
BEEN MET IN THE INSTANT CASE. IN AN EARLIER CASE, FEDERAL AVIATION
ADMINISTRATION, U.S. DEPARTMENT OF TRANSPORTATION, AND NATIONAL
ASSOCIATION OF AIR TRAFFIC SPECIALISTS, DES MOINES, IOWA, FLIGHT SERVICE
STATION (HATCHER, ARBITRATOR), FLRC NO. 73A-50 (MARCH 29, 1974), REPORT
NO. 52, THE AGENCY FILED EXCEPTIONS TO THE AWARD WITH THE COUNCIL,
ALLEGING IN PART, THAT, IN EFFECT, THE REMEDY WOULD REQUIRE THE IMPROPER
USE OF APPROPRIATED FUNDS IN VIOLATION OF THE SAME COMPTROLLER GENERAL
DECISIONS AND GSA ORDER. IN THE COUNCIL'S VIEW, THE APPLICABILITY OF
THE GSA ORDER AND THE VARIOUS COMPTROLLER GENERAL'S DECISIONS HAD NOT
BEEN SHOWN BY THE AGENCY IN THAT CASE. THE COUNCIL, THEREFORE,
DETERMINED THAT THE EXCEPTION IN THE EARLIER CASE HAD NOT BEEN SUPPORTED
BY SUFFICIENT FACTS AND CIRCUMSTANCES TO WARRANT REVIEW AS REQUIRED BY
SECTION 2411.32 OF THE COUNCIL'S RULES. SIMILARLY, IN THE INSTANT CASE,
IT IS THE COUNCIL'S OPINION THAT THE APPLICABILITY OF THE SAME GSA ORDER
AND COMPTROLLER GENERAL DECISIONS HAS ONCE AGAIN NOT BEEN DEMONSTRATED
BY THE AGENCY IN ITS PETITION FOR REVIEW. THE COUNCIL IS THEREFORE OF
THE OPINION THAT THE AGENCY HAS NOT PROVIDED SUFFICIENT FACTS AND
CIRCUMSTANCES TO SUPPORT THIS EXCEPTION, AS REQUIRED BY SECTION 2411.32
OF THE COUNCIL'S RULES OF PROCEDURE.
ACCORDINGLY, THE AGENCY'S PETITION FOR REVIEW IS DENIED BECAUSE IT
FAILS TO MEET THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.32
OF THE COUNCIL'S RULES OF PROCEDURE. LIKEWISE, THE AGENCY'S REQUEST FOR
A STAY IS DENIED UNDER SECTION 2411.47(D) OF THE COUNCIL'S RULES.
BY THE COUNCIL.
CC: W. B. PEER
PATCO
/1/ ARTICLE 47 OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT READS
IN FULL AS FOLLOWS:
SECTION 1. THE EMPLOYER WILL PROVIDE ADEQUATE EMPLOYEE PARKING
ACCOMMODATIONS AT FAA OWNED
OR LEASED AIR TRAFFIC FACILITIES WHERE FAA CONTROLS THE PARKING
FACILITIES. THIS SPACE WILL
BE EQUITABLY ADMINISTERED AMONG EMPLOYEES IN THE BARGAINING UNIT,
EXCLUDING SPACES RESERVED
FOR GOVERNMENT CARS AND VISITORS. THERE MAY BE A MAXIMUM OF THREE
RESERVED SPACES AT EACH
FACILITY WHERE SUCH SPACES ARE AVAILABLE EXCEPT AT FACILITIES WHERE
THERE ARE EMPLOYEES WITH
BONAFIDE PHYSICAL HANDICAPS. AT OTHER AIR TRAFFIC FACILITIES, THE
EMPLOYER WILL ENDEAVOR TO
OBTAIN PARKING ACCOMMODATIONS AT LEAST EQUAL TO THOSE PROVIDED THE
EMPLOYEES OF THE AIRPORT
OWNER OR OPERATOR.
SECTION 2. AT PARKING FACILITIES UNDER THE CONTROL OF FAA, THE
EMPLOYER WILL INSURE THAT
EMPLOYEES HAVE PROMPT ACCESS TO AND FROM THE PARKING FACILITIES.
SECTION 3. PARKING ACCOMMODATIONS AT FAA OCCUPIED BUILDINGS AND
FACILITIES WILL BE
GOVERNED BY LAW, REGULATION AND AGENCY ORDER 4665.3A.
/2/ FAA ORDER 4665.3A IN ITS ENTIRETY WAS ENCLOSED AS AN APPENDIX TO
THE COUNCIL'S DECISION LETTER IN FEDERAL AVIATION ADMINISTRATION,
DEPARTMENT OF TRANSPORTATION AND PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION (SCHEDLER, ARBITRATOR), FLRC NO. 74A-88, WHICH WAS ISSUED
ON THIS DATE.
3 FLRC 451; FLRC NO. 74A-88; JULY 24, 1975.
MR. R. J. ALFULTIS
DIRECTOR OF PERSONNEL
AND TRAINING
OFFICE OF THE SECRETARY OF
TRANSPORTATION
WASHINGTON, D.C. 20590
(SYNOPSIS) FLRC NO. 74A-88
FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION AND
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION (SCHEDLER,
ARBITRATOR). THE ARBITRATOR DETERMINED THAT THE AGENCY VIOLATED THE
PARTIES' NEGOTIATED AGREEMENT IN THE IMPLEMENTATION OF AN AGENCY ORDER,
WHICH ORDER WAS INCORPORATED BY REFERENCE IN THE AGREEMENT, WITH RESPECT
TO PARKING ACCOMODATIONS PROVIDED FOR EMPLOYEES. AS A REMEDY, THE
ARBITRATOR DIRECTED THAT THE AGENCY OFFER TO RESERVE A NUMBER OF PARKING
SPACES FOR USE BY THE EMPLOYEES. THE AGENCY FILED EXCEPTIONS TO THE
AWARD WITH THE COUNCIL, ALLEGING THAT (1) THE ARBITRATOR EXCEEDED HIS
AUTHORITY UNDER THE AGREEMENT BY THE REMEDY WHICH HE FASHIONED; AND (2)
THE ARBITRATOR EXCEEDED HIS AUTHORITY BY SUBSTITUTING HIS JUDGMENT FOR
THAT DELEGATED TO THE AGENCY'S REGIONAL DIRECTOR UNDER THE REFERENCED
AGENCY ORDER, IN DETERMINING THE ADEQUACY OF PARKING ACCOMODATIONS.
COUNCIL ACTION (JULY 24, 1975). AS TO (1), THE COUNCIL HELD
PRINCIPALLY THAT THE AGENCY PETITION DOES NOT PRESENT FACTS AND
CIRCUMSTANCES TO SUPPORT THE EXCEPTION. AS TO (2), THE COUNCIL HELD
THAT THE EXCEPTION DOES NOT PRESENT A GROUND UPON WHICH THE COUNCIL WILL
GRANT A PETITION FOR REVIEW OF AN ARBITRATION AWARD. ACCORDINGLY, THE
COUNCIL DENIED THE AGENCY'S PETITION FOR REVIEW SINCE IT FAILED TO MEET
THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.32 OF THE
COUNCIL'S RULES OF PROCEDURE (5 CFR 2411.32). THE COUNCIL ALSO VACATED
THE STAY OF THE ARBITRATOR'S AWARD WHICH IT HAD PREVIOUSLY GRANTED.
DEAR MR. ALFULTIS:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF AN
ARBITRATOR'S AWARD, AND THE UNION'S OPPOSITION THERETO, FILED IN THE
ABOVE-ENTITLED CASE.
AS STATED IN THE AWARD, THE AGENCY OPERATES THE CONTROL TOWER AT THE
DALLAS-FORT WORTH REGIONAL AIRPORT AND HAS 20 PARKING SPACES AT THE
TOWER. THE AIR TRAFFIC CONTROLLERS (EXCEPT THOSE ON THE MIDNIGHT SHIFT
WHO WERE ALLOWED TO PARK THEIR PRIVATELY OWNED VEHICLES IN THE SPACES AT
THE TOWER) PARKED THEIR PRIVATELY OWNED VEHICLES AT A REMOTE PARKING LOT
ON THE AIRPORT AND USED VARIOUS OTHER FORMS OF GROUND TRANSPORTATION
FROM THERE TO THE TOWER. THE PARTIES SUBMITTED TO ARBITRATION A
GRIEVANCE FILED BY THE UNION ALLEGING THAT PARKING ACCOMMODATIONS FOR
THE CONTROLLERS DID NOT MEET THE REQUIREMENTS FOR EMPLOYEE PARKING SET
FORTH IN THE PARTIES' COLLECTING BARGAINING AGREEMENT /1/ AND FAA ORDER
4665.3A, /2/ WHICH IS INCORPORATED BY REFERENCE IN ARTICLE 47, SECTION 3
OF THE COLLECTIVE BARGAINING AGREEMENT.
THE ARBITRATOR, NOTING THAT THE PARTIES DID NOT FURNISH A PRECISE
STATEMENT OF THE ISSUE SUBMITTED FOR ARBITRATION, FRAMED THE ISSUE FROM
THE UNION'S GRIEVANCE FORM, AS FOLLOWS:
DID THE AGENCY VIOLATE THE AGREEMENT OR AGENCY ORDER 4665.3A WITH THE
PRESENT PARKING
FACILITIES FURNISHED TO CONTROLLERS AT THE DALLAS-FORT WORTH REGIONAL
AIRPORT? IF THE ANSWER
IS "YES" WHAT WILL THE REMEDY BE?
THE ARBITRATOR DETERMINED THAT THE AGENCY HAD "VIOLATED ARTICLE 47
SECTION 3 IN THE IMPLEMENTATION OF AGENCY ORDER 4665.3A, TO WIT:
(1) UNDER ITEM 5B. SUBSECTION (1) THE PARKING ACCOMMODATIONS OF THE
EMPLOYEES ARE NOT EQUAL
TO THOSE PROVIDED TO THE AIRPORT OWNER/OPERATOR; AND
(2) UNDER ITEM 5B. SUBSECTION (2) THE DISTANCE FROM THE EMPLOYEES
WORK STATION TO THE
PARKING LOT IS OVER ONE MILE AND THIS VIOLATES THE REQUIREMENT OF A
REASONABLE DISTANCE OF 500
FEET."
AS A REMEDY, THE ARBITRATOR ORDERED THE AGENCY TO "IMMEDIATELY OFFER
TO RESERVE 14 PARKING SPACES FOR CONTROLLERS AT THE D-FW GROUND CONTROL
TOWER."
THE AGENCY REQUESTS THAT THE COUNCIL ACCEPT ITS PETITION FOR REVIEW
OF THE ARBITRATOR'S AWARD ON THE BASIS OF ITS TWO EXCEPTIONS DISCUSSED
BELOW.
UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE, REVIEW OF
AN ARBITRATION AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON
THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE
EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES
APPLICABLE LAW, APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS
SIMILAR TO THOSE UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE
SUSTAINED BY COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS."
THE AGENCY'S FIRST EXCEPTION CONTENDS THAT THE ARBITRATOR "EXCEEDED
HIS AUTHORITY UNDER ARTICLE 7, SECTION 6 /3/ OF THE NEGOTIATED AGREEMENT
. . . IN THAT HE DIRECTED THAT PARKING SPACES DESIGNATED SPECIFICALLY
FOR PARKING GOVERNMENT VEHICLES BE USED TO PARK EMPLOYEES' PRIVATELY
OWNED VEHICLES." THUS, THE AGENCY'S EXCEPTION, READ LITERALLY, STATES
THAT THE ARBITRATOR FAILED TO CONFINE HIMSELF TO THE PRECISE ISSUE
SUBMITTED FOR ARBITRATION AND DETERMINED ISSUES NOT SO SUBMITTED TO HIM.
THE COUNCIL WILL GRANT A PETITION FOR REVIEW OF AN ARBITRATION AWARD
WHERE IT APPEARS, BASED UPON THE FACTS AND CIRCUMSTANCES DESCRIBED IN
THE PETITION, THAT THE ARBITRATOR DID NOT DECIDE THE QUESTION SUBMITTED
TO ARBITRATION AND DETERMINED ISSUES NOT INCLUDED IN THE QUESTION
SUBMITTED TO ARBITRATION. SMALL BUSINESS ADMINISTRATION AND AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2532 (KLEEB, ARBITRATOR), FLRC
NO. 73A-44 (NOVEMBER 6, 1974), REPORT NO. 60. WE ARE OF THE OPINION,
HOWEVER, THAT THE AGENCY'S PETITION DOES NOT PRESENT FACTS AND
CIRCUMSTANCES TO SUPPORT ITS ASSERTION THAT THE ARBITRATOR FAILED TO
CONFINE HIMSELF TO THE PRECISE ISSUE SUBMITTED TO ARBITRATION AND
DETERMINED ISSUES OTHER THAN THOSE SUBMITTED TO ARBITRATION. THE ISSUE,
AS FORMULATED BY THE ARBITRATOR, WAS WHETHER OR NOT THE AGENCY HAD
VIOLATED THE AGREEMENT OR AGENCY ORDER 4665.3A BY THE PARKING FACILITIES
FURNISHED TO THE CONTROLLERS. /4/ CLEARLY, THE ARBITRATOR ANSWERED THAT
ISSUE; AND THE AGENCY'S PETITION FURNISHES NO SUPPORT FOR ITS
ALLEGATION THAT THE ARBITRATOR DETERMINED OTHER ISSUES NOT SUBMITTED TO
HIM.
IN SUPPORT OF ITS FIRST EXCEPTION, THE AGENCY ALSO CONTENDS THAT THE
ARBITRATOR EXCEEDED HIS AUTHORITY BY HIS AWARD WHICH ASSIGNED SPACES
ALLEGEDLY RESERVED FOR GOVERNMENT CARS FOR THE USE OF INDIVIDUAL
EMPLOYEE PARKING BECAUSE "(T)HE COMPTROLLER GENERAL WOULD HAVE TO DECIDE
WHETHER FAA, HAVING USED ITS AUTHORITY TO OBTAIN GOVERNMENT PARKING,
COULD THEN CONVERT ITS USE TO PARKING PRIVATE EMPLOYEE OWNED
AUTOMOBILES." HOWEVER, THE AGENCY'S PETITION FAILS TO CITE ANY
COMPTROLLER GENERAL DECISION OR AUTHORITY IN SUPPORT OF THIS EXCEPTION.
IT IS, THEREFORE, THE OPINION OF THE COUNCIL THAT THE AGENCY HAS NOT
PROVIDED SUFFICIENT FACTS AND CIRCUMSTANCES TO SUPPORT THIS EXCEPTION AS
REQUIRED BY SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE. IN THE
ABSENCE OF ANY CITED LEGAL AUTHORITY TO SUPPORT THE AGENCY'S FIRST
EXCEPTION, IT APPEARS THAT THE AGENCY IS SIMPLY CHALLENGING THE REMEDY
AS FASHIONED BY THE ARBITRATOR. HOWEVER, ABSENT AN APPLICABLE LEGAL
PROHIBITION, THE COUNCIL FOLLOWS A POLICY, AS DO COURTS IN THE PRIVATE
SECTOR, IN FAVOR OF ALLOWING ARBITRATORS DISCRETION IN FASHIONING
REMEDIES. SEE NAVAL AIR REWORK FACILITY, PENSACOLA, FLORIDA AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LODGE NO. 1960 (GOODMAN,
ARBITRATOR), FLRC NO. 74A-12 (SEPTEMBER 9, 1974), REPORT NO. 56.
IN ITS SECOND EXCEPTION, THE AGENCY CONTENDS THAT, "(T)HE ARBITRATOR
EXCEEDED HIS AUTHORITY BY SUBSTITUTING HIS JUDGMENT FOR THE JUDGMENT
DELEGATED TO THE FEDERAL AVIATION ADMINISTRATION'S REGIONAL DIRECTOR."
THE AGENCY MAINTAINS THAT THE REGIONAL DIRECTOR MADE, PURSUANT TO THE
AGENCY ORDER, A DETERMINATION THAT PARKING FOR THE CONTROLLERS WAS
ADEQUATE AND THAT THERE IS NO BASIS BY WHICH THE ARBITRATOR COULD
SUBSTITUTE HIS JUDGMENT FOR THAT OF THE REGIONAL DIRECTOR. FURTHERMORE,
THE AGENCY ALLEGES THAT (1) FAA ORDER 4665.3A CLEARLY DELEGATES THE
AUTHORITY TO DETERMINE PARKING ADEQUACY FROM THE AGENCY ADMINISTRATOR TO
THE REGIONAL DIRECTOR, NOT TO THE ARBITRATOR, AND (2) SINCE THE AGENCY
ORDER DOES NOT CONVEY AUTHORITY TO THE ARBITRATOR TO MAKE SUCH A
DETERMINATION, THE AGENCY DID NOT AGREE THAT THE ARBITRATOR WAS TO JUDGE
THE ADEQUACY OF PARKING. THE ARBITRATOR, THE AGENCY ALLEGES, WAS
LIMITED TO THE INTERPRETATION AND APPLICATION OF THE AGREEMENT AND,
SINCE THE AGENCY ORDER IS REFERRED TO IN THE AGREEMENT, THE REGIONAL
DIRECTOR'S DETERMINATION WAS BINDING AS TO THE UNION.
WE CANNOT AGREE WITH THE AGENCY'S CONTENTIONS. IN THIS CASE, THE
AGENCY ORDER DELEGATES DISCRETIONARY AUTHORITY TO AGENCY MANAGEMENT TO
DETERMINE THE ADEQUACY OF EMPLOYEE PARKING IN FACILITIES CONTROLLED BY
THE AGENCY. THE NEGOTIATED AGREEMENT PROVIDES, IN PERTINENT PART, THAT,
"(P)ARKING ACCOMMODATIONS AT FAA OCCUPIED BUILDINGS AND FACILITIES WILL
BE GOVERNED BY . . . AGENCY ORDER 4665.3A." WHERE, AS HERE, AN AGENCY
VALIDLY AGREES DURING NEGOTIATIONS, IN EFFECT, TO INCORPORATE SUCH AN
AGENCY POLICY OR REGULATION ON A MATTER WITHIN AGENCY DISCRETION IN A
COLLECTIVE BARGAINING AGREEMENT, WHICH AGREEMENT INCLUDES A GRIEVANCE
AND ARBITRATION PROCEDURE, /5/ THE AGENCY HAS THEREBY AGREED THAT THE
UNION MAY FILE A GRIEVANCE IN WHICH IT DISPUTES THE AGENCY'S
INTERPRETATION AND APPLICATION OF THE AGREEMENT, INCLUDING SUCH AGENCY
POLICY OR REGULATION, AND THAT, IF THE DISPUTE IS SUBMITTED TO
ARBITRATION, AN ARBITRATOR HAS AUTHORITY UNDER THE AGREEMENT TO
INTERPRET AND APPLY ITS PROVISIONS, INCLUDING SUCH AGENCY POLICY OR
REGULATION, TO THE FACTS IN A PARTICULAR GRIEVANCE IN ORDER TO RESOLVE
THE DISPUTE. IN OTHER WORDS, IN THE CIRCUMSTANCES OF THIS CASE, THE
ARBITRATOR HAD THE AUTHORITY TO INTERPRET AND APPLY THE PROVISIONS OF
THE FAA ORDER JUST AS IF THE PROVISIONS OF THE ORDER WERE PROVISIONS OF
THE NEGOTIATED AGREEMENT ITSELF. THE COUNCIL HAS HELD, AS COURTS HAVE
CONSISTENTLY HELD WITH RESPECT TO ARBITRATION IN THE PRIVATE SECTOR,
THAT INTERPRETATION OF CONTRACT PROVISIONS IS A MATTER TO BE LEFT TO THE
JUDGMENT OF THE ARBITRATOR. SEE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2649 AND OFFICE OF ECONOMIC OPPORTUNITY (SISK,
ARBITRATOR), FLRC NO. 74A-17 (DECEMBER 5, 1974), REPORT NO. 61. THIS
PRINCIPLE IS LIKEWISE APPLICABLE TO THE INTERPRETATION OF AGENCY
POLICIES AND REGULATIONS ON MATTERS WITHIN AGENCY DISCRETION WHERE, AS
HERE, THOSE POLICIES OR REGULATIONS ARE INCORPORATED IN A NEGOTIATED
AGREEMENT. THUS, THE AGENCY'S SECOND EXCEPTION DOES NOT PRESENT A
GROUND UPON WHICH THE COUNCIL WILL GRANT A PETITION FOR REVIEW OF AN
ARBITRATION AWARD.
ACCORDINGLY, THE AGENCY'S PETITION FOR REVIEW IS DENIED BECAUSE IT
FAILS TO MEET THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.32
OF THE COUNCIL'S RULES OF PROCEDURE. /6/ LIKEWISE, THE STAY PREVIOUSLY
GRANTED IS VACATED.
BY THE COUNCIL.
ENCLOSURE:
APPENDIX
CC: W. B. PEER
PATCO
ORDER
SUBJ: POLICY ON PARKING ACCOMMODATIONS AT FAA OCCUPIED BUILDINGS AND
FACILITIES
1. PURPOSE. THIS ORDER ANNOUNCES POLICY ON PROVIDING ACCOMMODATIONS
FOR OFFICIAL AND EMPLOYEE PARKING IN FAA OCCUPIED BUILDINGS AND
FACILITIES.
2. CANCELLATION. ORDER 4665.3, POLICY ON PARKING ACCOMMODATIONS AT
FAA OCCUPIED BUILDINGS AND FACILITIES, IS CANCELED.
3. DISTRIBUTION. WASHINGTON HEADQUARTERS TO OFFICE LEVEL (MINUS
SYSTEMS MAINTENANCE, AIR TRAFFIC, AIRPORTS SERVICE, LOGISTICS SERVICE,
AND FLIGHT STANDARDS); SYSTEMS MAINTENANCE, AIR TRAFFIC, AIRPORTS
SERVICE, LOGISTICS SERVICE AND FLIGHT STANDARDS TO DIVISION LEVEL; TO
DIVISION LEVEL IN THE REGIONS, AERONAUTICAL CENTER, AND NATIONAL
AVIATION FACILITIES EXPERIMENTAL CENTER; AND, ALL FIELD OFFICES AND
FACILITIES.
4. POLICY.
A. AT FAA TECHNICAL FACILITIES (AIR NAVIGATION AND AIR TRAFFIC
CONTROL FACILITIES).
(1) OFFICIAL PARKING.
(A) ON AIRPORTS. NEW LEASES, AIRPORT DEVELOPMENT AID PROGRAM (ADAP)
AGREEMENTS, OR ANY
OTHER INSTRUMENT NEGOTIATED WITH A NON-FEDERALLY OWNED AIRPORT
SPONSOR OR AIRPORT
OWNER/OPERATOR SHALL INCLUDE THE PROVISION THAT ADEQUATE LAND SHALL
BE PROVIDED, WITHOUT COST,
FOR THE PURPOSE OF PARKING ALL OFFICIAL VEHICLES (FAA VEHICLES, AND
PRIVATELY OWNED VEHICLES
WHEN USED FOR FAA BUSINESS) NECESSARY FOR THE MAINTENANCE AND
OPERATION OF THE
FACILITY(S). THE LAND SO PROVIDED SHALL BE ADJACENT TO THE
FACILITY(S) SERVED.
(B) OFF AIRPORTS. SUFFICIENT LAND OR SPACE SHALL BE OBTAINED FOR
OFFICIAL PARKING AT ALL
FAA TECHNICAL FACILITIES AT THE TIME THE FACILITY IS ACQUIRED.
(2) EMPLOYEE PARKING. ADEQUATE PARKING ACCOMMODATIONS SHALL BE
PROVIDED FOR THE PRIVATELY
OWNED VEHICLES OF FAA EMPLOYEES ENGAGED IN THE MAINTENANCE AND
OPERATION OF AGENCY TECHNICAL
FACILITIES.
DISTRIBUTION: W-1 (MINUS SM, AT, AS, LG & FS);
SM/AT/AS/LG/FS-2; RNCM-2; FOF-O (NORMAL)
(A) ON AIRPORTS. ADEQUATE PARKING ACCOMMODATIONS FOR FAA EMPLOYEES
IN CLOSE PROXIMITY TO
FAA TECHNICAL FACILITIES IS CONSIDERED TO BE AN INTEGRAL PART OF EACH
FACILITY.
1 PROJECT APPROVALS FOR NEW FACILITIES SHALL BE WITHHELD AND START OF
CONSTRUCTION OF NEW
FACILITIES SHALL BE DELAYED UNTIL ADEQUATE EMPLOYEE PARKING
ARRANGEMENTS ARE MADE FOR ALL FAA
TECHNICAL FACILITIES LOCATED ON THE AIRPORT.
2 NO NEW LEASES, PERMITS OR OTHER INSTRUMENTS ARE TO BE EXECUTED OR
EXISTING ONES MODIFIED
WITHOUT THE INCLUSION OF SPECIFIC STATEMENTS ASSURING ADEQUATE
EMPLOYEE PARKING ACCOMMODATIONS
AT ALL TECHNICAL FACILITIES LOCATED ON THE AIRPORT. NO NEW ADAP
AGREEMENTS WILL BE ENTERED
INTO WITHOUT OBTAINING ASSURANCES FROM THE SPONSOR OF ADEQUATE
PARKING ACCOMMODATIONS FOR
EMPLOYEES AT ALL FAA TECHNICAL FACILITIES ON THE AIRPORT.
(B) OFF AIRPORTS. SUFFICIENT LAND OR SPACE SHALL BE OBTAINED FOR
EMPLOYEE PARKING AT ALL
FAA TECHNICAL FACILITIES AT THE TIME THE FACILITY OR LAND FOR THE
FACILITY IS ACQUIRED.
B. AT FAA OWNED OR LEASED BUILDINGS AND FACILITIES, EXCEPT FOR
TECHNICAL FACILITIES.
(1) FAA OWNED. ADEQUATE OFFICIAL AND EMPLOYEE PARKING ACCOMMODATIONS
SHALL BE OBTAINED AT
THE TIME THE BUILDING OR FACILITY IS ACQUIRED.
(2) FAA LEASED. ADEQUATE OFFICIAL AND EMPLOYEE PARKING
ACCOMMODATIONS SHALL BE OBTAINED
EITHER AS PART OF, OR SEPARATE FROM, THE LEASE. WHEN JUSTIFIED, FAA
FUNDS MAY BE UTILIZED TO
OBTAIN PARKING ACCOMMODATIONS.
C. AT GSA CONTROLLED BUILDINGS AND FACILITIES. FAA SHALL FOLLOW GSA
POLICIES WITH RESPECT
TO PROVIDING PARKING ACCOMMODATIONS FOR FAA PARKING NEEDS IN GSA
CONTROLLED BUILDINGS AND
FACILITIES.
5. DETERMINING ADEQUACY OF PARKING.
A. RESPONSIBILITY. REGIONAL AND CENTER DIRECTORS ARE RESPONSIBLE
FOR DETERMINING THE
ADEQUACY OF PARKING ACCOMMODATIONS FOR OFFICIAL AND EMPLOYEE PARKING
ON A SITE-BY-SITE BASIS.
B. FACTORS TO BE CONSIDERED. IN PURSUING THE OBJECTIVE OF PROVIDING
PARKING
ACCOMMODATIONS CLOSE TO A FACILITY AT NO OR VERY MINIMAL COST TO THE
EMPLOYEES, A FIRM BUT
REASONABLE AND RESPONSIBLE POSITION MUST BE TAKEN. SOME
CONSIDERATIONS ARE:
(1) PARKING ACCOMMODATIONS SHOULD BE AT LEAST EQUAL TO THOSE PROVIDED
THE EMPLOYEES OF THE
AIRPORT OWNER/OPERATOR.
(2) THE DISTANCE BETWEEN THE PARKING AREA AND FACILITY SHOULD TAKE
INTO ACCOUNT WEATHER
CONDITIONS AND PERSONNEL SAFETY FACTORS. A REASONABLE DISTANCE MAY
BE 500 FEET DEPENDING ON
THE SPECIFIC CIRCUMSTANCES AT A GIVEN LOCATION. GENERALLY, AN
EMPLOYEE SHOULD NOT HAVE TO
RESORT TO ANOTHER MEANS OF TRANSPORTATION (E.G., SHUTTLE BUSES) TO
REACH THE FACILITY FROM THE
PARKING AREA. BUT THE AVAILABILITY OF THIS TYPE TRANSPORTATION MUST
BE CONSIDERED IN ARRIVING
AT A FINAL DECISION ON THE ADEQUACY QUESTION.
(3) FREE PARKING FOR EMPLOYEES IS A DESIRABLE OBJECTIVE. A
REASONABLE COST TO EMPLOYEES AS
DETERMINED BY REGIONAL AND CENTER DIRECTORS, MAY BE APPROPRIATE
DEPENDING ON SPECIFIC
SITUATIONS.
6. CORRECTION OF DEFICIENCIES.
A. AT EXISTING BUILDINGS AND FACILITIES.
(1) GSA CONTROLLED SPACE. NEGOTIATE WITH LOCAL GSA OFFICIALS FOR
EARLY IMPROVEMENT OF
PARKING ACCOMMODATIONS.
(2) FAA CONTROLLED SPACE.
(A) OFFICIAL PARKING. A MAXIMUM EFFORT SHALL BE MADE TO NEGOTIATE
FOR ADEQUATE OFFICIAL
PARKING. IN THE EVENT THESE EFFORTS FAIL, THE REGIONAL DIRECTOR MAY
APPROVE THE EXPENDITURE
OF FAA FUNDS TO OBTAIN TEMPORARY RELIEF FOR THE PROBLEM UNTIL SUCH
TIME AS PARKING
ACCOMMODATIONS CAN BE OBTAINED THROUGH ADAP AGREEMENTS OR LEASE
ARRANGEMENTS (AS SPECIFIED IN
PARAGRAPH 4) OR IN THE CASE OF OFF AIRPORT SITES, UNTIL PARKING
ACCOMMODATIONS CAN BE
ACQUIRED.
(B) EMPLOYEE PARKING AT TECHNICAL FACILITIES. A MAXIMUM EFFORT SHALL
BE MADE TO NEGOTIATE
FOR ADEQUATE EMPLOYEE PARKING. IN THE EVENT THESE EFFORTS FAIL, THE
REGIONAL DIRECTOR MAY
APPROVE THE EXPENDITURE OF FAA FUNDS TO OBTAIN TEMPORARY RELIEF FOR
THE PROBLEM UNTIL SUCH
TIME AS PARKING ACCOMMODATIONS CAN BE OBTAINED FROM THE AIRPORT
OWNER/SPONSOR, OR, IN THE CASE
OF OFF AIRPORT SITES, UNTIL PARKING ACCOMMODATIONS CAN BE ACQUIRED.
(C) OTHER EMPLOYEE PARKING. INITIATE APPROPRIATE ACTION TO OBTAIN
ADEQUATE PARKING
ACCOMMODATIONS:
1 ON EXISTING GOVERNMENT-OWNED LAND OR IN EXISTING GOVERNMENT-OWNED
BUILDINGS;
2 THROUGH GSA AT NO COST TO FAA;
3 THROUGH LEASE REVISIONS AT NO ADDITIONAL COSTS; AND,
4 AT FAA EXPENSE WHEN JUSTIFIED.
7. RESPONSIBILITIES.
A. THE REGION AND CENTER DIRECTORS SHALL IMMEDIATELY IMPLEMENT THE
POLICY CONTAINED IN
PARAGRAPH 4, AND INITIATE ACTIONS LEADING TO CORRECTION OF EXISTING
DEFICIENCIES TO INSURE
THAT ADEQUATE PARKING ACCOMMODATIONS ARE PROVIDED FOR FAA OFFICIAL
AND EMPLOYEE VEHICLES.
B. THE LOGISTICS SERVICE WILL PROVIDE PROGRAM MANAGEMENT AND
DIRECTION AND ADDITIONAL
PROCEDURAL GUIDANCE AS REQUIRED.
J. H. SHAFFER
ADMINISTRATOR
/1/ ARTICLE 47 - "PARKING" - OF THE COLLECTIVE BARGAINING AGREEMENT
PROVIDES AS FOLLOWS:
SECTION 1. THE EMPLOYER WILL PROVIDE ADEQUATE EMPLOYEE PARKING
ACCOMMODATIONS AT FAA OWNED OR
LEASED AIR TRAFFIC FACILITIES WHERE FAA CONTROLS THE PARKING
FACILITIES. THIS SPACE WILL BE
EQUITABLY ADMINISTERED AMONG EMPLOYEES IN THE BARGAINING UNIT,
EXCLUDING SPACES RESERVED FOR
GOVERNMENT CARS AND VISITORS. THERE MAY BE A MAXIMUM OF THREE
RESERVED SPACES AT EACH
FACILITY WHERE SUCH SPACES ARE AVAILABLE EXCEPT AT FACILITIES WHERE
THERE ARE EMPLOYEES WITH
BONAFIDE PHYSICAL HANDICAPS. AT OTHER AIR TRAFFIC FACILITIES, THE
EMPLOYER WILL ENDEAVOR TO
OBTAIN PARKING ACCOMMODATIONS AT LEAST EQUAL TO THOSE PROVIDED THE
EMPLOYEES OF THE AIRPORT
OWNER OR OPERATOR. SECTION 2. AT PARKING FACILITIES UNDER THE
CONTROL OF FAA, THE EMPLOYER
WILL INSURE THAT EMPLOYEES HAVE PROMPT ACCESS TO AND FROM THE PARKING
FACILITIES. SECTION
3. PARKING ACCOMMODATIONS AT FAA OCCUPIED BUILDINGS AND FACILITIES
WILL BE GOVERNED BY LAW,
REGULATION AND AGENCY ORDER 4665.3A.
/2/ FAA ORDER 4665.3A IS ENCLOSED AS AN APPENDIX TO THIS DECISION
LETTER.
/3/ SECTION 6 OF ARTICLE 7 - "DISPUTE SETTLEMENT PROCEDURES" -
PROVIDES:
SECTION 6. THE ARBITRATOR SHALL CONFINE HIMSELF TO THE PRECISE ISSUE
SUBMITTED FOR
ARBITRATION AND SHALL HAVE NO AUTHORITY TO DETERMINE ANY OTHER ISSUES
NOT SO SUBMITTED TO
HIM. IN DISCIPLINARY CASES THE ARBITRATOR MAY VARY THE PENALTY TO
CONFORM TO HIS DECISION.
/4/ IN THE ABSENCE OF A SUBMISSION AGREEMENT, AS IN THE INSTANT CASE,
THE ARBITRATOR'S UNCHALLENGED FORMULATION OF THE QUESTION MAY BE
REGARDED AS THE EQUIVALENT OF A SUBMISSION AGREEMENT. SEE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 12 (AFGE) AND U.S. DEPARTMENT
OF LABOR (JAFFEE, ARBITRATOR), FLRC NO. 72A-3 (JULY 31, 1973), REPORT
NO. 42.
/5/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1668 AND
ELMENDORF AIR FORCE BASE (WILDWOOD AIR FORCE STATION), ALASKA, FLRC NO.
72A-10 (MAY 15, 1973), REPORT NO. 38. SEE ALSO SECTION 13 OF E.O.
11491, AS AMENDED; THE "REPORT AND RECOMMENDATIONS OF THE FEDERAL LABOR
RELATIONS COUNCIL ON THE AMENDMENT OF EXECUTIVE ORDER 11491, AS
AMENDED," LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1975),
SECTION VI, PP. 44-53; AND BUREAU OF PRISONS AND FEDERAL PRISON
INDUSTRIES, INC., WASHINGTON, DC AND COUNCIL OF PRISON LOCALS, AFGE, 73
FSIP 27, FLRC NO. 74A-24 (JUNE 10, 1975), REPORT NO. 74.
/6/ CF. FEDERAL AVIATION ADMINISTRATION, U.S. DEPARTMENT OF
TRANSPORTATION, AND NATIONAL ASSOCIATION OF AIR TRAFFIC SPECIALISTS, DES
MOINES, IOWA, FLIGHT SERVICE STATION (HATCHER, ARBITRATOR), FLRC NO.
73A-50 (MARCH 29, 1974), REPORT NO. 52.
3 FLRC 449; FLRC NO. 75A-62; JULY 21, 1975.
MR. LYNN AGEE
YOUNGDAHL & LARRISON
100 NORTH MAIN BUILDING
MEMPHIS, TENNESSEE 38103
(SYNOPSIS) FLRC NO. 75'A-62
FARMERS HOME ADMINISTRATION, UNITED STATES DEPARTMENT OF AGRICULTURE,
LITTLE ROCK, ARKANSAS, A/SLMR NO. 506. ON MAY 22, 1975, THE COUNCIL
GRANTED THE UNION'S (ARKANSAS ASSOCIATION OF FMHA CLERKS) REQUEST FOR AN
EXTENSION OF TIME UNTIL JUNE 16, 1975, TO FILE AN APPEAL IN THE PRESENT
CASE. HOWEVER, THE UNION DID NOT FILE ITS APPEALS UNTIL JUNE 17, 1975,
AND NO FURTHER EXTENSION OF TIME FOR FILING WAS EITHER REQUESTED BY THE
UNION OR GRANTED BY THE COUNCIL.
COUNCIL ACTION (JULY 21, 1975). BECAUSE THE UNION'S APPEAL WAS
UNTIMELY FILED, AND APART FROM OTHER CONSIDERATIONS, THE COUNCIL DENIED
THE PETITION FOR REVIEW.
DEAR MR. AGEE:
THIS REFERS TO YOUR PETITION FOR REVIEW OF THE ASSISTANT SECRETARY'S
DECISION IN THE ABOVE-ENTITLED CASE. FOR THE REASONS INDICATED BELOW,
THE COUNCIL HAS DETERMINED THAT YOUR PETITION WAS UNTIMELY FILED UNDER
THE COUNCIL'S RULES OF PROCEDURE AND CANNOT BE ACCEPTED FOR REVIEW.
BY LETTER DATED MAY 22, 1975, CONFIRMING ORAL ADVICE, THE COUNCIL
GRANTED AN EXTENSION OF TIME FOR FILING AN APPEAL IN THE ABOVE-ENTITLED
CASE UNTIL THE CLOSE OF BUSINESS ON JUNE 16, 1975. THEREFORE, UNDER
SECTION 2411.45(A) AND (C) OF THE COUNCIL'S RULES, YOUR APPEAL WAS DUE
IN THE OFFICE OF THE COUNCIL ON OR BEFORE THE CLOSE OF BUSINESS ON JUNE
16, 1975. HOWEVER, YOUR APPEAL WAS NOT RECEIVED BY THE COUNCIL UNTIL
JUNE 17, 1975, AND NO FURTHER EXTENSION OF TIME FOR FILING WAS EITHER
REQUESTED BY YOU OR GRANTED BY THE COUNCIL.
ACCORDINGLY, AS YOUR APPEAL WAS UNTIMELY FILED, AND APART FROM OTHER
CONSIDERATIONS, YOUR PETITION FOR REVIEW IS DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
D. L. SPRADLIN
AGRICULTURE
3 FLRC 445; FLRC NO. 75A-20; JULY 21, 1975.
MR. S. B. PRANGER
DIRECTOR OF PERSONNEL
OFFICE OF PERSONNEL
OFFICE OF THE SECRETARY
U.S. DEPARTMENT OF AGRICULTURE
WASHINGTON, D.C. 20250
(SYNOPSIS) FLRC NO. 75A-20
U.S. DEPARTMENT OF AGRICULTURE, AGRICULTURAL RESEARCH SERVICE,
EASTERN REGIONAL RESEARCH CENTER (ERRC), PHILADELPHIA, PENNSYLVANIA,
A/SLMR NO. 479. THE ASSISTANT SECRETARY, UPON A UNIT CLARIFICATION
PETITION FILED BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 1331, DETERMINED, AMONG OTHER THINGS, THAT EMPLOYEES DESIGNATED AS
NON-PROJECT LEADERS WERE NOT SUPERVISORS WITHIN THE MEANING OF SECTION
2(C) OF THE ORDER. THE AGENCY APPEALED TO THE COUNCIL, CONTENDING THAT
THIS DECISION BY THE ASSISTANT SECRETARY IS ARBITRARY AND CAPRICIOUS AND
PRESENTS A MAJOR POLICY ISSUE.
COUNCIL ACTION (JULY 21, 1975). THE COUNCIL HELD THAT THE AGENCY'S
PETITION DOES NOT MEET THE REQUIREMENTS FOR REVIEW UNDER SECTION 2411.12
OF THE COUNCIL'S RULES (5 CFR 2411.12); THAT IS, THE FINDINGS AND
DECISION OF THE ASSISTANT SECRETARY DO NOT APPEAR IN ANY MANNER
ARBITRARY AND CAPRICIOUS NOR DO THEY PRESENT A MAJOR POLICY ISSUE.
ACCORDINGLY, THE COUNCIL DENIED THE AGENCY'S PETITION FOR REVIEW.
DEAR MR. PRANGER:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1331, AFL-CIO
(AFGE), THE EXCLUSIVE REPRESENTATIVE OF EMPLOYEES OF THE EASTERN
REGIONAL RESEARCH CENTER (THE ACTIVITY), SOUGHT TO CLARIFY THE EXISTING
UNIT TO REFLECT A CHANGE IN THE DESIGNATION OF THE ACTIVITY RESULTING
FROM A REORGANIZATION, AND TO CLARIFY THE STATUS OF CERTAIN EMPLOYEES
DESIGNATED AS PROJECT LEADERS, CERTAIN NAMED NON-PROJECT LEADERS, AND
CERTAIN NAMED EMPLOYEES CLASSIFIED AS MILLWRIGHT, STOCKHANDLER, AND
PHYSICAL SCIENCE ADMINISTRATOR. THE ASSISTANT SECRETARY DETERMINED, IN
PERTINENT PART, THAT THE PROJECT LEADERS ARE SUPERVISORS WITHIN THE
MEANING OF SECTION 2(C) OF THE ORDER, RELYING PRIMARILY ON THE FACT THAT
UNDER THE PARTIES' NEGOTIATED AGREEMENT, THE PROJECT LEADERS PARTICIPATE
IN THE FIRST STEP OF THE FORMAL GRIEVANCE PROCEDURE AND POSSESS THE
AUTHORITY TO ADJUST GRIEVANCES AT THAT LEVEL.
HOWEVER, THE ASSISTANT SECRETARY DETERMINED THAT THE EMPLOYEES
DESIGNATED AS NON-PROJECT LEADERS ARE NOT SUPERVISORS, BECAUSE THEY
FUNCTION MERELY AS TEAM LEADERS AND HAVE A SENIOR-TO-JUNIOR EMPLOYEE
RELATIONSHIP WITH THOSE EMPLOYEES ASSIGNED TO THEM. FURTHER, ALTHOUGH
SOME OF THE NON-PROJECT LEADERS HAVE EVALUATED THE PERFORMANCE OF
EMPLOYEES ASSIGNED TO THEM, THERE WAS NO EVIDENCE INDICATING THAT THE
EVALUATIONS WERE EFFECTIVE OR REQUIRED THE USE OF INDEPENDENT JUDGMENT.
IN THIS REGARD, THE ASSISTANT SECRETARY NOTED THAT ALTHOUGH SOME OF THE
NON-PROJECT LEADERS HAVE EVALUATED THE PERFORMANCE OF STUDENT EMPLOYEES
ASSIGNED TO THEM, THESE EVALUATIONS WERE UTILIZED SOLELY FOR THE PURPOSE
OF GRADING THE STUDENT EMPLOYEES FOR SCHOLASTIC PURPOSES AND WERE NOT
RELATED TO THEIR EMPLOYMENT. THE ASSISTANT SECRETARY FURTHER DETERMINED
THAT THE MILLWRIGHT AND THE STOCKHANDLER ARE WORK LEADERS RATHER THAN
SUPERVISORS, AND THAT THE PHYSICAL SCIENCE ADMINISTRATOR IS NOT A
MANAGEMENT OFFICIAL WITHIN THE MEANING OF THE ORDER.
IN YOUR PETITION FOR REVIEW, YOU CONTEND THAT THE ASSISTANT
SECRETARY'S DECISION THAT THE NON-PROJECT LEADERS ARE NOT SUPERVISORS IS
ARBITRARY AND CAPRICIOUS, SINCE: (1) ARTICLE XIX, SECTION 4 OF THE
AGREEMENT PROVIDES THAT A GRIEVANCE OVER THE INTERPRETATION OR
APPLICATION OF THE AGREEMENT MAY BE PRESENTED VERBALLY "TO THE IMMEDIATE
SUPERVISOR" AT AN INFORMAL STEP IN THE GRIEVANCE PROCEDURE PRIOR TO
CONSIDERATION OF THE GRIEVANCE BY THE PROJECT LEADER AT LEVEL 1 OF THE
FORMAL PROCEDURE, THUS IMPLYING THE EXISTENCE OF A LEVEL OF SUPERVISION
BELOW PROJECT LEADER CAPABLE OF RESOLVING AND ADJUSTING EMPLOYEE
GRIEVANCES WHICH CAN ONLY BE COMPOSED OF NON-PROJECT LEADERS; AND (2)
THE ASSISTANT SECRETARY DID NOT CONSIDER ALL APPROPRIATE EVIDENCE AND
TESTIMONY IN DETERMINING THAT NON-PROJECT LEADERS DO NOT RENDER
EFFECTIVE PERFORMANCE EVALUATIONS OF EMPLOYEES ASSIGNED TO THEM
REQUIRING THE USE OF INDEPENDENT JUDGMENT, SINCE THE RECORD ESTABLISHES
THAT SUCH PERFORMANCE EVALUATIONS CANNOT BE CHANGED BY ;HIGHER LEVEL
SUPERVISION AND ARE BASED ON THE NON-PROJECT LEADER'S DAY-TO-DAY
DIRECTION OF WORK ASSIGNMENTS. FURTHER, YOU CONTEND THAT THE ASSISTANT
SECRETARY'S DECISION PRESENTS A MAJOR POLICY ISSUE AS TO "WHETHER A
PERFORMANCE EVALUATION WHICH CANNOT BE CHANGED BY HIGHER LEVEL
SUPERVISION NO LONGER CONSTITUTES AN EFFECTIVE PERFORMANCE EVALUATION
REQUIRING THE USE OF INDEPENDENT JUDGMENT, CONTRARY TO PRIOR FINDINGS OF
THE ASSISTANT SECRETARY THAT SUCH FACTORS WOULD BE A SUFFICIENT INDICIA
OF SUPERVISORY STATUS."
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW OF THE ASSISTANT
SECRETARY'S DECISION DOES NOT MEET THE REQUIREMENTS OF SECTION 2411.12
OF THE COUNCIL'S RULES; THAT IS, HIS FINDINGS AND DECISION DO NOT
APPEAR IN ANY MANNER ARBITRARY AND CAPRICIOUS NOR DO THEY PRESENT A
MAJOR POLICY ISSUE. WITH REGARD TO YOUR CONTENTION THAT NON-PROJECT
LEADERS CONSTITUTE A LEVEL OF SUPERVISION BELOW THAT OF PROJECT LEADERS
FOR THE PURPOSE OF ADJUSTING CERTAIN GRIEVANCES UNDER THE NEGOTIATED
GRIEVANCE PROCEDURE, IT DOES NOT APPEAR THAT THE ASSISTANT SECRETARY
ACTED WITHOUT REASONABLE JUSTIFICATION IN DETERMINING THAT SUCH
INDIVIDUALS WERE NOT SUPERVISORS WITHIN THE MEANING OF SECTION 2(C) OF
THE ORDER.
WITH RESPECT TO YOUR CONTENTIONS THAT NON-PROJECT LEADERS RENDER
EFFECTIVE PERFORMANCE EVALUATIONS AND THE ALLEGED MAJOR POLICY ISSUE
CONCERNING WHETHER A PERFORMANCE EVALUATION WHICH CANNOT BE CHANGED BY
HIGHER LEVEL SUPERVISION CONSTITUTES AN EFFECTIVE PERFORMANCE
EVALUATION, SUBSEQUENT TO THE ASSISTANT SECRETARY'S DECISION HEREIN,
SECTION 2(C) OF THE ORDER WAS AMENDED BY E.O. 11838, SO AS TO DELETE
PERFORMANCE EVALUATION AS A SOLE DETERMINANT OF SUPERVISORY STATUS. IN
RECOMMENDING THIS CHANGE, THE COUNCIL CONCLUDED THAT " . . . PERSONS WHO
EVALUATE THE PERFORMANCE OF OTHER EMPLOYEES WILL NOT BE CONSIDERED
SUPERVISORS UNLESS THEY OTHERWISE QUALIFY AS SUPERVISORS UNDER THE
DEFINITION." UNDER THE CIRCUMSTANCES, AS THE BASIS FOR ASSISTANT
SECRETARY DECISIONS WHICH DEAL WITH PERFORMANCE EVALUATIONS AS A SOLE
DETERMINANT OF SUPERVISORY STATUS HAS BEEN REMOVED FROM THE ORDER, THERE
IS NO MAJOR POLICY ISSUE PRESENT WARRANTING COUNCIL CONSIDERATION.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY OR
CAPRICIOUS AND DOES NOT PRESENT ANY MAJOR POLICY ISSUE, YOUR APPEAL
FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED UNDER SECTION
2411.12 OF THE COUNCIL'S RULES OF PROCEDURE. ACCORDINGLY, REVIEW OF
YOUR APPEAL IS HEREBY DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
R. L. STABILE
AFGE
3 FLRC 439; FLRC NO. 74A-63; JULY 21, 1975.
AFGE LOCAL 2456
AND
REGION 3, GENERAL SERVICES ADMINISTRATION,
BALTIMORE, MARYLAND
(SYNOPSIS) FLRC NO. 74A-63
AFGE LOCAL 2456 AND REGION 3, GENERAL SERVICES ADMINISTRATION,
BALTIMORE, MARYLAND. THE DISPUTE INVOLVED THE NEGOTIABILITY UNDER THE
ORDER OF A PROVISION IN AN AGREEMENT NEGOTIATED AT THE LOCAL LEVEL
RELATED TO HEALTH AND SAFETY STANDARDS IN WORK AREAS AND IN THE
OPERATION OF EQUIPMENT.
COUNCIL ACTION (JULY 21, 1975). BASED PRINCIPALLY ON ITS DECISION
WITH REGARD TO AN ANALOGOUS PROPOSAL IN AFGE COUNCIL OF LOCALS 1497 AND
2165 AND REGION 3, GENERAL SERVICES ADMINISTRATION, BALTIMORE, MARYLAND,
FLRC NO. 74A-48, REPORT NO. 75, THE COUNCIL HELD THAT THE PROVISION HERE
INVOLVED DID NOT VIOLATE APPLICABLE LAW OR THE ORDER, AS CONTENDED BY
THE AGENCY. ACCORDINGLY, THE COUNCIL HELD THAT THE PROVISION WAS
PROPERLY SUBJECT TO NEGOTIATION BY THE PARTIES UNDER SECTION 11(A) OF
THE ORDER, AND SET ASIDE THE AGENCY HEAD'S DETERMINATION OF
NONNEGOTIABILITY.
AFGE LOCAL 2456 (HEREINAFTER, THE UNION) AND GENERAL SERVICES
ADMINISTRATION, REGION 3, NEGOTIATED AN AGREEMENT SUBJECT TO AGENCY
APPROVAL PURSUANT TO SECTION 15 OF THE ORDER. THE GENERAL SERVICES
ADMINISTRATION DETERMINED THAT THE PROVISION IN THE AGREEMENT ENTITLED
ARTICLE 22, SECTION 4 CONFLICTS WITH SECTION 12(B)(1), (2), (5) AND (6)
OF THE ORDER, /1/ SECTIONS 2(E)(2) /2/ AND 19(B)(4) /3/ OF THE ORDER,
AND 5 U.S.C. 7311, /4/ AND DECLINED TO APPROVE THE AGREEMENT.
THE TEXT OF THE DISPUTED PROVISION IS SET FORTH BELOW:
AN EMPLOYEE SHALL NOT BE REQUIRED TO WORK IN AREAS WHERE CONDITIONS
EXIST DETRIMENTAL TO
HEALTH UNTIL SUCH CONDITIONS HAVE BEEN REMOVED OR REMEDIED. THE
EMPLOYER AGREES THAT AN
EMPLOYEE WILL NOT BE REQUIRED TO OPERATE EQUIPMENT THAT HE IS NOT
QUALIFIED TO OPERATE, WHICH
BY SO DOING, MIGHT ENDANGER HIMSELF OR OTHER EMPLOYEES. THE
PROCEDURE IN SECTION 2, OF THIS
ARTICLE SHALL BE THE ONLY PROCEDURE FOLLOWED TO RESOLVE QUESTIONS
UNDER THIS
SECTION. /5/ (FOOTNOTE SUPPLIED.)
THE UNION APPEALED THE AGENCY DETERMINATION TO THE COUNCIL UNDER
SECTION 11(C)(4) OF THE ORDER, AND THE AGENCY FILED A STATEMENT OF
POSITION IN SUPPORT OF ITS DETERMINATION.
THE ISSUE PRESENTED TO THE COUNCIL IS WHETHER THE PROPOSAL IS
RENDERED NONNEGOTIABLE UNDER THE SECTIONS OF THE ORDER AND THE UNITED
STATES CODE CITED ABOVE.
IN OUR VIEW, THE PROVISION HERE IN DISPUTE BEARS NO MATERIAL
DIFFERENCE FROM THE ONE ENTITLED ARTICLE XX (SAFETY), SECTION 3, WHICH
WAS BEFORE THE COUNCIL IN AFGE COUNCIL OF LOCALS 1497 AND 2165 AND
REGION 3, GENERAL SERVICES ADMINISTRATION, BALTIMORE, MARYLAND, FLRC NO.
74A-48 (JUNE 26, 1975), REPORT NO. 75. IN THAT CASE, THE COUNCIL SET
ASIDE THE AGENCY'S DETERMINATION THAT THE PROVISION THERE AT ISSUE /6/
WAS RENDERED NONNEGOTIABLE UNDER SECTION 12(B)(1), (2), (5), AND (6) OF
THE ORDER AND BY 5 U.S.C. 7311.
ACCORDINGLY, BASED ON THE APPLICABLE DISCUSSION AND ANALYSIS IN
GENERAL SERVICES ADMINISTRATION, FLRC NO. 74A-48, THE PROPOSAL IN THE
INSTANT CASE 0UST ALSO BE HELD NOT TO VIOLATE SECTION 12 OF THE ORDER OR
5 U.S.C. 7311. /7/
WE NOTE THAT ARTICLE XX (SAFETY), SECTION 3, HELD TO BE NEGOTIABLE IN
GENERAL SERVICES ADMINISTRATION, FLRC NO. 74A-48, CONTAINED NO EXPRESS
COUNTERPART TO THE SECOND SENTENCE OF THE INSTANT PROVISION-- THAT "AN
EMPLOYEE WILL NOT BE REQUIRED TO OPERATE EQUIPMENT THAT HE IS NOT
QUALIFIED TO OPERATE, WHICH BY SO DOING, MIGHT ENDANGER HIMSELF OR OTHER
EMPLOYEES." WE DO NOT, HOWEVER, FIND SUCH DIFFERENCE BETWEEN THE
PROVISIONS TO BE MATERIAL OR CONTROLLING IN THE RESOLUTION OF THIS CASE.
IN OUR OPINION, SUCH ASSURANCE IS ENCOMPASSED WITHIN THE GENERAL HEALTH
AND SAFETY STANDARD IMPLICIT IN BOTH THE INSTANT PROVISION AND THE ONE
INVOLVED IN GENERAL SERVICES ADMINISTRATION, FLRC NO. 74A-48-- THAT
MANAGEMENT WILL PROVIDE WORKING CONDITIONS WHICH ARE NOT DETRIMENTAL TO
EMPLOYEE HEALTH AND SAFETY. MOREOVER, THE COUNCIL FINDS THAT SUCH
REFERENCE TO EMPLOYEE QUALIFICATION TO OPERATE EQUIPMENT WAS NOT
INTENDED BY THE UNION TO MAKE QUESTIONS AS TO THOSE QUALIFICATIONS
NEGOTIABLE, OR SUBJECT TO THE GRIEVANCE PROCEDURE. AS THE UNION STATES
IN ITS APPEAL IN PERTINENT REGARD, THE PROVISION RECOGNIZES THE
RESERVATION TO MANAGEMENT OF:
. . . THE RIGHT TO DETERMINE WHETHER A CONDITION IS DETRIMENTAL AND
THEN TO REMOVE OR
REMEDY IT; AS A RESULT CONTROL NEVER LEAVES MANAGEMENT . . .
(M)ANAGEMENT RETAINS ALL
AUTHORITY GIVEN TO THEM UNDER THE ORDER. SINCE THE EMPLOYEE IS THE
PERSON WHO INITIALLY WOULD
DISCOVER A CONDITION DETRIMENTAL TO HIS HEALTH, LOGIC DICTATES THAT
HE OR SHE WOULD THEN
NOTIFY MANAGEMENT WHO WOULD THEN DETERMINE WHETHER OR NOT SUCH
CONDITION DID IN FACT EXIST AND
IF SO, WOULD CORRECT THE CONDITION.
ACCORDINGLY, WE MUST SET ASIDE THE AGENCY'S DETERMINATION THAT
ARTICLE 22, SECTION 4 IS NONNEGOTIABLE.
FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2411.27 OF THE
COUNCIL'S RULES AND REGULATIONS, WE FIND THAT THE AGENCY HEAD'S
DETERMINATION AS TO THE NONNEGOTIABILITY OF ARTICLE 22, SECTION 4 OF THE
AGREEMENT NEGOTIATED AT THE LOCAL LEVEL WAS IMPROPER AND MUST BE SET
ASIDE. THIS DECISION SHOULD NOT BE CONSTRUED AS EXPRESSING OR IMPLYING
ANY OPINION OF THE COUNCIL AS TO THE MERITS OF THE PROVISION. WE DECIDE
ONLY THAT, AS SUBMITTED BY THE UNION AND BASED ON THE RECORD BEFORE THE
COUNCIL, THE PROVISION WAS PROPERLY SUBJECT TO NEGOTIATION BY THE
PARTIES CONCERNED UNDER SECTION 11(A) OF THE ORDER.
BY THE COUNCIL.
ISSUED: JULY 21, 1975
/1/ SECTION 12 OF THE ORDER PROVIDES, IN PERTINENT PART:
SEC. 12. BASIC PROVISIONS OF AGREEMENTS. EACH AGREEMENT BETWEEN AN
AGENCY AND A LABOR
ORGANIZATION IS SUBJECT TO THE FOLLOWING REQUIREMENTS--
(B) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN
ACCORDANCE WITH APPLICABLE LAWS
AND REGULATIONS--
(1) TO DIRECT EMPLOYEES OF THE AGENCY;
(2) TO HIRE, PROMOTE, TRANSFER, ASSIGN, AND RETAIN EMPLOYEES IN
POSITIONS WITHIN THE
AGENCY, AND TO SUSPEND, DEMOTE, DISCHARGE, OR TAKE OTHER DISCIPLINARY
ACTION AGAINST
EMPLOYEES;
(5) TO DETERMINE THE METHODS, MEANS, AND PERSONNEL BY WHICH SUCH
OPERATIONS ARE TO BE
CONDUCTED; AND
(6) TO TAKE WHATEVER ACTIONS MAY BE NECESSARY TO CARRY OUT THE
MISSION OF THE AGENCY IN
SITUATIONS OF EMERGENCY . . .
/2/ SECTION 2 OF THE ORDER PROVIDES, IN RELEVANT PART:
SEC. 2. DEFINITIONS. WHEN USED IN THIS ORDER, THE TERM--
(E) "LABOR ORGANIZATION" MEANS A LAWFUL ORGANIZATION OF ANY KIND IN
WHICH EMPLOYEES
PARTICIPATE AND WHICH EXISTS FOR THE PURPOSE, IN WHOLE OR IN PART, OF
DEALING WITH AGENCIES
CONCERNING GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER
MATTERS AFFECTING THE
WORKING CONDITIONS OF THEIR EMPLOYEES; BUT DOES NOT INCLUDE AN
ORGANIZATION WHICH--
(2) ASSISTS OR PARTICIPATES IN A STRIKE AGAINST THE GOVERNMENT OF THE
UNITED STATES OR ANY
AGENCY THEREOF OR IMPOSES A DUTY OR OBLIGATION TO CONDUCT, ASSIST, OR
PARTICIPATE IN SUCH A
STRIKE . . .
/3/ SECTION 19 OF THE ORDER PROVIDES, IN PERTINENT PART:
SEC. 19. UNFAIR LABOR PRACTICES.
(B) A LABOR ORGANIZATION SHALL NOT-- (4) CALL OR ENGAGE IN A STRIKE,
WORK STOPPAGE, OR
SLOWDOWN; PICKET AN AGENCY IN A LABOR-MANAGEMENT DISPUTE; OR
CONDONE ANY SUCH ACTIVITY BY
FAILING TO TAKE AFFIRMATIVE ACTION TO PREVENT OR STOP IT . . .
/4/ 5 U.S.C. 7311 PROVIDES, IN PERTINENT PART:
AN INDIVIDUAL MAY NOT ACCEPT OR HOLD A POSITION IN THE GOVERNMENT OF
THE UNITED STATES OR
THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IF HE--
(3) PARTICIPATES IN A STRIKE, OR ASSERTS THE RIGHT TO STRIKE, AGAINST
THE GOVERNMENT OF THE
UNITED STATES OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA . . .
/5/ SECTION 2, ESTABLISHING, IN EFFECT, AN INITIAL INFORMAL STEP IN
THE GRIEVANCE PROCEDURE TO RESOLVE DIFFERENCES WHICH ARISE UNDER THE
INSTANT CLAUSE, IS NOT IN DISPUTE. IT PROVIDES AS FOLLOWS:
IN THE COURSE OF PERFORMING THEIR NORMALLY ASSIGNED WORK, EMPLOYEES
WILL BE ALERT TO
OBSERVE UNSAFE PRACTICES, EQUIPMENT AND CONDITIONS AS WELL AS
ENVIRONMENTAL CONDITIONS WHICH
REPRESENT INDUSTRIAL HEALTH HAZARDS. IF AN UNSAFE OR UNHEALTHY
CONDITION IS OBSERVED, THE
EMPLOYEE SHOULD REPORT IT TO HIS IMMEDIATE SUPERVISOR AND, IF THE
EMPLOYEE SO DESIRES, MAY BE
REPRESENTED BY THE SHOP STEWARD. IF THE SAFETY QUESTION IS NOT
SETTLED BY THE EMPLOYEE (AND
THE SHOP STEWARD) AND THE IMMEDIATE SUPERVISOR, THE MATTER WILL BE
REFERRED PROMPTLY TO THE
BUILDINGS MANAGER FOR RESOLUTION. IF THE SAFETY QUESTION IS STILL
NOT SETTLED, IT WILL BE
PROMPTLY REFERRED TO THE CHIEF, ACCIDENT AND FIRE PREVENTION BRANCH,
AND BY THE SHOP STEWARD
TO THE UNION PRESIDENT FOR RESOLUTION. IF STILL UNRESOLVED, THE
SAFETY QUESTION MAY BE
PROCESSED UNDER THE FORMAL GRIEVANCE PROCEDURES OUTLINED IN ARTICLE
14. RECORDS CONCERNING
THE SAFETY QUESTION WILL BE MAINTAINED BY THE CHIEF, ACCIDENT AND
FIRE PREVENTION BRANCH AND
AVAILABLE FOR REVIEW BY THE UNION.
/6/ THE PROVISION INVOLVED IN GENERAL SERVICES ADMINISTRATION, FLRC
NO. 74A-48 PROVIDED THAT:
IT IS AGREED THAT NO EMPLOYEE SHALL BE REQUIRED TO PERFORM WORK ON OR
ABOUT MOVING OR
OPERATING MACHINES WITHOUT PROPER PRECAUTION, PROTECTIVE EQUIPMENT
AND SAFETY DEVICES, NOR
SHALL ANY EMPLOYEE BE REQUIRED TO WORK IN AREAS WHERE CONDITIONS ARE
DETRIMENTAL TO HEALTH
WITHOUT PROPER PROTECTIVE EQUIPMENT AND SAFETY DEVICES.
/7/ THE AGENCY'S ADDITIONAL CONTENTIONS IN THE INSTANT CASE WITH
REGARD TO SECTIONS 2(E)(2) AND 19(B)(4) OF THE ORDER WERE NOT BEFORE THE
COUNCIL IN GENERAL SERVICES ADMINISTRATION, FLRC NO. 74A-48. HOWEVER,
IN VIEW OF OUR DETERMINATION WITH REGARD TO THE INSTANT PROVISION THAT,
AS WE STATED IN FLRC NO. 74A-48, "WE DO NOT VIEW THE PROVISION INVOLVED
HERE AS, IN ANY WAY, GRANTING TO THE EMPLOYEES IN THE BARGAINING UNIT
THE RIGHT TO REFUSE TO WORK," SUCH CONTENTIONS ARE CLEARLY INAPPLICABLE
AND LEND NO SUPPORT TO THE AGENCY'S POSITION.
3 FLRC 433; FLRC NO. 74A-16; JULY 21, 1975.
DEPARTMENT OF COMMERCE, NATIONAL OCEANIC
AND ATMOSPHERIC ADMINISTRATION, NATIONAL
WEATHER SERVICE, CENTRAL REGION AND
WEATHER SERVICE OFFICES (BISMARCK, NORTH
DAKOTA; FARGO, NORTH DAKOTA; ST. CLOUD,
MINNESOTA; AND INTERNATIONAL FALLS,
MINNESOTA)
AND
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
COUNCIL OF NWS CENTRAL REGION LOCALS
AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
AFL-CIO, LOCAL 2476
(SYNOPSIS) FLRC NO. 74A-16
DEPARTMENT OF COMMERCE, NATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION, NATIONAL WEATHER SERVICE, CENTRAL REGION AND WEATHER
SERVICE OFFICES (BISMARCK, NORTH DAKOTA; FARGO, NORTH DAKOTA; ST.
CLOUD, MINNESOTA; AND INTERNATIONAL FALLS, MINNESOTA), A/SLMR NO. 331.
THIS APPEAL AROSE FROM A DECISION AND DIRECTION OF ELECTIONS ISSUED BY
THE ASSISTANT SECRETARY AFTER A CONSOLIDATED HEARING HELD UPON SEPARATE
REPRESENTATION PETITIONS FILED BY THE NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES COUNCIL OF NWS CENTRAL REGION LOCALS (NAGE) AND THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2476 (AFGE). UPON
APPEAL BY THE AGENCY, THE COUNCIL DETERMINED THAT THE ASSISTANT
SECRETARY'S DECISION PRESENTED MAJOR POLICY ISSUES AND ACCEPTED THE
AGENCY'S PETITION FOR REVIEW (REPORT NO. 53).
COUNCIL ACTION (JULY 21, 1975). THE COUNCIL HELD THAT THE MAJOR
POLICY ISSUES POSED BY THE INSTANT CASE, WHICH CONCERN THE PROPRIETY OF
THE ASSISTANT SECRETARY'S INTERPRETATION AND APPLICATION OF THE
APPROPRIATE UNIT CRITERIA SET FORTH IN SECTION 10(B) OF THE ORDER IN
FINDING SEPARATE UNITS APPROPRIATE, WERE ESSENTIALLY THE SAME AS THOSE
WHICH THE COUNCIL CONSIDERED IN THE TULSA AIR FACILITIES SECTOR CASE,
FLRC NO. 74A-28 (REPORT NO. 69). APPLYING THE PRINCIPLES ESTABLISHED IN
THAT CASE, THE COUNCIL FOUND THAT IN THE INSTANT CASE THE ASSISTANT
SECRETARY'S DETERMINATION SATISFIED THE ESSENTIAL REQUIREMENTS OF
SECTION 10(B). ACCORDINGLY, PURSUANT TO SECTION 2411.17(B) OF ITS RULES
OF PROCEDURE (5 CFR 2411.17(B)), THE COUNCIL SUSTAINED THE DECISION OF
THE ASSISTANT SECRETARY.
THIS APPEAL ARISES FROM A DECISION AND DIRECTION OF ELECTIONS ISSUED
BY THE ASSISTANT SECRETARY AFTER A CONSOLIDATED HEARING HELD UPON
SEPARATE REPRESENTATION PETITIONS FILED BY THE NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, COUNCIL OF NWS CENTRAL REGION LOCALS (NAGE) AND
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2476
(AFGE). /1/
THE PERTINENT FACTS IN THE CASE AS FOUND BY THE ASSISTANT SECRETARY
ARE AS FOLLOWS: THE NAGE REQUESTED A UNIT OF ALL NONSUPERVISORY
PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES ASSIGNED TO THE CENTRAL
REGION, /2/ NATIONAL WEATHER SERVICE, DEPARTMENT OF COMMERCE, INCLUDING
EMPLOYEES ASSIGNED TO CENTRAL REGION HEADQUARTERS, BUT EXCLUDING THOSE
EMPLOYEES IN UNITS SUBJECT TO CERTIFICATION BARS AND GRANTS OF EXCLUSIVE
RECOGNITION HELD BY OTHER LABOR ORGANIZATIONS. THE AFGE REQUESTED FOUR
SEPARATE UNITS OF ALL NONPROFESSIONAL GENERAL SCHEDULE EMPLOYEES
ASSIGNED TO THE CENTRAL REGION AND STATIONED RESPECTIVELY AT THE WSO'S
AT BISMARCK AND FARGO, NORTH DAKOTA, AND ST. CLOUD AND INTERNATIONAL
FALLS, MINNESOTA.
THE ASSISTANT SECRETARY FOUND THAT THE UNIT PETITIONED FOR BY THE
NAGE, AND SUBSTANTIALLY AGREED TO BY THE AGENCY, MAY BE APPROPRIATE FOR
THE PURPOSE OF EXCLUSIVE RECOGNITION PARTICULARLY BECAUSE THE EMPLOYEES
OF THE REGIONAL OFFICE AND THE FIELD OFFICES WORKED TOGETHER TO
ACCOMPLISH THE BASIC MISSIONS OF THE NATIONAL WEATHER SERVICE, ARE
SUBJECT TO THE SAME PROMOTIONAL AREAS OF CONSIDERATION, ENJOY THE SAME
FRINGE AND OTHER JOB BENEFITS, AND ARE IN FREQUENT CONTACT WITH EACH
OTHER. HE ALSO NOTED THAT THE REGIONAL DIRECTOR, WHO IS RESPONSIBLE FOR
THE ACCOMPLISHMENT OF THE OVERALL REGIONAL PROGRAM, EXERCISES ULTIMATE
AUTHORITY AND CONTROL OVER THE OPERATIONS OF THE REGION, INCLUDING THE
ULTIMATE RESPONSIBILITY WITH RESPECT TO PERSONNEL MATTERS, SUCH AS THE
HIRING AND DISCHARGING OF EMPLOYEES, THE HANDLING OF GRIEVANCES, THE
DISCIPLINING AND TRANSFER OF EMPLOYEES, AND THAT THE REGIONAL DIRECTOR
HAS THE AUTHORITY TO EXECUTE NEGOTIATED AGREEMENTS WITHIN HIS PARTICULAR
REGION.
THE ASSISTANT SECRETARY FURTHER FOUND, CONTRARY TO THE AGENCY'S
POSITION, THAT THE SEPARATE UNITS OF EMPLOYEES IN THE INDIVIDUAL WSO'S
PETITIONED FOR BY THE AFGE ALSO MAY BE APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION. IN THIS CONNECTION, PARTICULAR NOTE WAS TAKEN OF
THE FACTS THAT THE EMPLOYEES IN EACH SUCH STATION ARE ENGAGED IN
PERFORMING A PARTICULAR WEATHER FUNCTION MISSION; THAT THEY ARE UNDER
THE IMMEDIATE SUPERVISION OF A METEOROLOGIST-IN-CHARGE OR AN
OFFICIAL-IN-CHARGE LOCATED AT THE PARTICULAR WSO INVOLVED; THAT THESE
OFFICES ARE PHYSICALLY SEPARATED FROM OTHER WEATHER STATIONS IN THE
CENTRAL REGION; AND THAT THERE HAS BEEN LITTLE OR NO EMPLOYEE
INTERCHANGE. IN ADDITION, HE NOTED THAT ALTHOUGH ALL NATIONAL WEATHER
SERVICE EMPLOYEES ARE COVERED BY A CENTRALIZED PERSONNEL PROGRAM AND ALL
SHARE CERTAIN WORKING CONDITIONS, THERE IS MINIMAL DAY-TO-DAY CONTACT
BETWEEN THE EMPLOYEES OF THE PROPOSED AFGE UNITS AND OTHER NATIONAL
WEATHER SERVICE FIELD OFFICE EMPLOYEES IN THE CENTRAL REGION. FINALLY,
THE ASSISTANT SECRETARY STATED:
UNDER THESE CIRCUMSTANCES, AND NOTING ALSO THE FACT THAT CURRENTLY
THERE ARE A NUMBER OF
EXCLUSIVELY RECOGNIZED UNITS IN THE CENTRAL REGION, MOST OF WHICH ARE
COVERED BY NEGOTIATED
AGREEMENTS, AND THE ABSENCE OF ANY SPECIFIC COUNTERVAILING EVIDENCE
THAT UNITS PROPOSED BY THE
AFGE WOULD NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS, I REJECT THE
ACTIVITY'S CONTENTION THAT ESTABLISHING SUCH UNITS WILL NOT PROMOTE
EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS.
ACCORDINGLY, THE ASSISTANT SECRETARY DIRECTED AN ELECTION IN THE
REGIONWIDE UNIT SOUGHT BY THE NAGE AND SELF-DETERMINATION ELECTIONS IN
EACH OF THE WSO'S SOUGHT BY THE AFGE. /3/
THE AGENCY THEREUPON PETITIONED THE COUNCIL FOR REVIEW OF THE
DECISION, CONTENDING THAT IT RAISED MAJOR POLICY ISSUES. THE COUNCIL
FOUND THAT MAJOR POLICY ISSUES WERE PRESENTED BY THE CASE AND ACCEPTED
THE AGENCY'S PETITION FOR REVIEW (REPORT NO. 53, JUNE 24, 1974). /4/
THE MAJOR POLICY ISSUES POSED BY THE INSTANT CASE CONCERN THE
PROPRIETY OF THE ASSISTANT SECRETARY'S INTERPRETATION AND APPLICATION OF
THE CRITERIA FOR AN APPROPRIATE UNIT AS ESTABLISHED IN SECTION 10(B) OF
THE ORDER, /5/ IN FINDING SEPARATE WSO UNITS APPROPRIATE. THESE ISSUES
ARE ESSENTIALLY THE SAME AS THOSE WHICH THE COUNCIL RECENTLY CONSIDERED
IN DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION,
SOUTHWEST REGION, TULSA AIRWAYS FACILITIES SECTOR, A/SLMR NO. 364, FLRC
NO. 74A-28 (MAY 9, 1975), REPORT NO. 69, WHEREIN WE FOUND, IN PERTINENT
PART, AS FOLLOWS (AT P. 5 OF THE COUNCIL'S DECISION): /6/
IT IS CLEAR THAT THE EXPRESS LANGUAGE OF SECTION 10(B) REQUIRES THAT
ANY PROPOSED UNIT OF
EXCLUSIVE RECOGNITION MUST SATISFY EACH OF THE THREE CRITERIA SET
FORTH THEREIN, AND THAT THE
ASSISTANT SECRETARY MUST AFFIRMATIVELY SO DETERMINE, BEFORE THAT UNIT
PROPERLY CAN BE FOUND TO
BE APPROPRIATE.
ADDITIONALLY, WE FOUND IN CONNECTION WITH THIS OBLIGATION THAT (AT P.
6 OF THE COUNCIL'S DECISION):
. . . THE ASSISTANT SECRETARY MUST NOT ONLY AFFIRMATIVELY DETERMINE
THAT A UNIT WILL ENSURE
A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST AMONG THE EMPLOYEES
CONCERNED AND WILL PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS, BUT MUST GIVE
EQUAL WEIGHT TO EACH OF
THE THREE CRITERIA BEFORE THE PARTICULAR UNIT CAN BE FOUND TO BE
APPROPRIATE.
WE ALSO FOUND THAT (AT P. 7 OF THE COUNCIL'S DECISION):
OUR HOLDING WITH REGARD TO THE FIRST MAJOR POLICY ISSUE PRESENTED BY
THIS CASE TO THE
EFFECT THAT THE ASSISTANT SECRETARY CANNOT PROPERLY FIND ANY UNIT
APPROPRIATE UNLESS HE
AFFIRMATIVELY DETERMINES THAT IT SATISFIES EACH OF THE CRITERIA SET
FORTH IN SECTION 10(B) OF
THE ORDER, IMPELS US TO CONCLUDE AS TO THIS ISSUE THAT THE ASSISTANT
SECRETARY MUST FIRST
DEVELOP AS COMPLETE A RECORD AS POSSIBLE WITH REGARD TO EACH OF THE
THREE CRITERIA UPON WHICH
HE CAN BASE HIS DETERMINATIONS, AND, MOREOVER, THAT HE MUST GIVE FULL
AND CAREFUL
CONSIDERATION TO ALL RELEVANT EVIDENCE IN THE RECORD IN REACHING HIS
DECISION.
WE REAFFIRM THE PRINCIPLES THERE ESTABLISHED. APPLYING THESE
PRINCIPLES TO THE CASE BEFORE US, HOWEVER, WE FIND THAT HERE, IN
CONTRAST TO HIS DECISION IN TULSA AFS, THE ASSISTANT SECRETARY'S
DETERMINATION THAT SEPARATE WSO UNITS WERE APPROPRIATE SATISFIED THE
ESSENTIAL REQUIREMENTS OF SECTION 10(B).
MORE PARTICULARLY, THE ASSISTANT SECRETARY PLAINLY DETAILED FACTS
ESTABLISHING THAT THE EMPLOYEES IN THE RESPECTIVE WSO'S POSSESSED A
CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST. FURTHER, WHILE HIS
FINDINGS AS TO WHETHER THESE UNITS WOULD PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS WERE NOT COUCHED IN THE PRECISE LANGUAGE
OF THE ORDER, THE SUBSTANCE OF HIS DECISION REFLECTS, IN CONTRAST TO HIS
DECISION IN TULSA AFS, AN AFFIRMATIVE DETERMINATION IN THIS REGARD AND
THE REQUIRED ACCORDING OF EQUAL WEIGHT TO THESE CRITERIA. THAT IS, THE
ASSISTANT SECRETARY EXPRESSLY RELIED IN THIS REGARD: ON THE
CIRCUMSTANCES PREVIOUSLY DETAILED IN HIS DECISION; THE ADDITIONAL FACT
THAT CURRENTLY THERE ARE A NUMBER OF EXCLUSIVELY RECOGNIZED UNITS IN THE
CENTRAL REGION, MOST OF WHICH ARE COVERED BY NEGOTIATED AGREEMENTS; /7/
AND THE LACK OF ANY SPECIFIC COUNTERVAILING EVIDENCE.
LIKEWISE, WE ARE SATISFIED FROM OUR EXAMINATION OF THE ENTIRE RECORD
BEFORE US THAT THE ASSISTANT SECRETARY DEVELOPED AN ADEQUATE RECORD UPON
WHICH TO BASE HIS DETERMINATION, AND THAT HE GAVE FULL AND CAREFUL
CONSIDERATION TO ALL RELEVANT EVIDENCE IN THE RECORD IN RENDERING HIS
DECISION.
ACCORDINGLY, HAVING FOUND THAT THE ASSISTANT SECRETARY'S DECISION MET
THE REQUIREMENTS PROVIDED IN SECTION 10(B) OF THE ORDER, THE COUNCIL,
PURSUANT TO SECTION 2411.17(B) OF ITS RULES, SUSTAINS THE DECISION OF
THE ASSISTANT SECRETARY IN THE PRESENT CASE.
BY THE COUNCIL.
ISSUED: JULY 21, 1975
/1/ THE SEPARATE PETITIONS WERE FILED IN ASSISTANT SECRETARY CASE NO.
60-3261 (RO) IN WHICH THE NAGE SOUGHT AN ELECTION IN A REGIONWIDE UNIT
AND IN CASE NOS. 60-3262 (RO), 60-3263 (RO), 51-2501(25) AND 51-2502(25)
WHEREIN AFGE RESPECTIVELY PETITIONED FOR SEPARATE UNITS AT THE FOUR
WEATHER SERVICE OFFICES IDENTIFIED IN THE CAPTION.
/2/ THE CENTRAL REGION OF THE NWS CONSISTS OF A REGIONAL HEADQUARTERS
OFFICE AND 77 FIELD OFFICES LOCATED THROUGHOUT THE 14 STATES COMPRISING
THE CENTRAL REGION.
/3/ THAT IS, THE EMPLOYEES IN EACH OF THE FOUR WSO'S PETITIONED FOR
BY THE AFGE WERE PERMITTED TO VOTE FOR THE AFGE, THE NAGE OR "NO UNION"
WHILE THOSE IN THE REMAINING WSO'S IN THE REGION WERE TO VOTE ONLY ON
THE NAGE OR "NO UNION." (THE PROFESSIONAL EMPLOYEES IN THE REGIONWIDE
UNIT PETITIONED FOR BY THE NAGE WERE GIVEN THE USUAL BALLOT CHOICES
DICTATED BY SECTION 10(B)(4) OF THE ORDER.) IN THE ELECTIONS HELD
PURSUANT TO THE ASSISTANT SECRETARY'S DECISION THE EMPLOYEES OF THREE OF
THE FOUR WSO'S CONCERNED CHOSE THE AFGE AS THEIR REPRESENTATIVE AND THE
AFGE WAS SO CERTIFIED. THE EMPLOYEES AT THE REMAINING WSO SELECTED THE
NAGE AS THEIR REPRESENTATIVE AND WERE INCLUDED IN THE REGIONWIDE UNIT IN
WHICH NAGE WAS CERTIFIED.
/4/ THE COUNCIL ALSO DETERMINED, UPON THE FACTS AND CIRCUMSTANCES
PRESENTED, THAT THE AGENCY'S FURTHER REQUEST THAT THE ASSISTANT
SECRETARY'S DECISION BE HELD IN ABEYANCE DID NOT MEET THE CRITERIA FOR
GRANTING A STAY OF A REPRESENTATION DECISION AS SET FORTH IN SECTION
2411.47(C) OF THE COUNCIL'S RULES.
/5/ SECTION 10(B) READS IN PERTINENT PART, AS FOLLOWS:
(B) A UNIT MAY BE ESTABLISHED ON A PLANT OR INSTALLATION, CRAFT,
FUNCTIONAL, OR OTHER BASIS
WHICH WILL ENSURE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST
AMONG THE EMPLOYEES CONCERNED
AND WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS. A UNIT SHALL NOT BE
ESTABLISHED SOLELY ON THE BASIS OF THE EXTENT TO WHICH EMPLOYEES IN
THE PROPOSED UNIT HAVE
ORGANIZED, NOR SHALL A UNIT BE ESTABLISHED IF IT INCLUDES . . .
/6/ TULSA AFS INVOLVED A QUESTION OF REPRESENTATION WHEREIN THE
ASSISTANT SECRETARY DISMISSED AN AGENCY PETITION SEEKING AN ELECTION IN
A SECTORWIDE UNIT CONSISTING OF ALL THE ACTIVITY'S ELIGIBLE EMPLOYEES IN
ITS TULSA AIRWAYS FACILITIES SECTOR, BOTH THOSE CURRENTLY REPRESENTED BY
THE UNION AND THOSE PLACED UNDER THE ACTIVITY'S JURISDICTION AS A RESULT
OF REORGANIZATION.
/7/ THE AGREEMENTS ADVERTED TO BY THE ASSISTANT SECRETARY CONSIST, AS
INDICATED IN THE RECORD, OF A SINGLE UNIT AGREEMENT COVERING A WSO UNIT
REPRESENTED BY NFFE AND MULTI-UNIT AGREEMENTS COVERING SEPARATELY
RECOGNIZED WSO UNITS REPRESENTED BY NAGE AND AFGE RESPECTIVELY.
FURTHER, AN AFGE REPRESENTATIVE TESTIFIED AT THE HEARING IN THE PRESENT
CASE THAT THE SEPARATE WSO UNITS REQUESTED WOULD, IF THE AFGE WERE
CERTIFIED, FALL UNDER ITS MULTI-UNIT AGREEMENT.
3 FLRC 430; FLRC NO. 75A-18; JUNE 26, 1975.
MS. LISA RENEE STRAX
STAFF ATTORNEY
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES
1737 H STREET, NW.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 75A-18
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, SOCIAL SECURITY
ADMINISTRATION, ALBUQUERQUE DATA OPERATIONS CENTER, ALBUQUERQUE, NEW
MEXICO, ASSISTANT SECRETARY CASE NO. 63-4833 (RO). THE ASSISTANT
SECRETARY, IN CONSONANCE WITH THE ASSISTANT REGIONAL DIRECTOR, FOUND NO
MERIT TO THE OBJECTIONS FILED BY THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES TO CONDUCT ALLEGED TO HAVE IMPROPERLY AFFECTED THE RESULTS OF
A RUNOFF ELECTION. ACCORDINGLY, THE ASSISTANT SECRETARY DENIED THE
UNION'S REQUEST FOR REVIEW OF THE ASSISTANT REGIONAL DIRECTOR'S REPORT
AND FINDINGS. THE UNION APPEALED TO THE COUNCIL, CONTENDING THAT THE
ASSISTANT SECRETARY'S DECISION WAS ARBITRARY AND CAPRICIOUS AND PRESENTS
MAJOR POLICY ISSUES.
COUNCIL ACTION (JUNE 26, 1975). THE COUNCIL HELD THAT THE ASSISTANT
SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY AND CAPRICIOUS AND DOES
NOT PRESENT A MAJOR POLICY ISSUE. THEREFORE, SINCE THE UNION'S APPEAL
FAILED TO MEET THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.12
OF THE COUNCIL'S RULES (5 CFR 2411.12), THE COUNCIL DENIED THE UNION'S
PETITION FOR REVIEW.
DEAR MS. STRAX:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR REQUEST FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-CAPTIONED CASE.
THE CASE AROSE WHEN THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES
FILED OBJECTIONS TO CONDUCT ALLEGED TO HAVE IMPROPERLY AFFECTED THE
RESULTS OF A RUN-OFF ELECTION, CONTENDING, IN PERTINENT PART, THAT THE
CENTER DIRECTOR'S PRESENCE IN THE CAFETERIA AT LUNCH TIME DURING THE
CAMPAIGN PERIOD IMPROPERLY INTERFERED WITH THE EMPLOYEES' ORGANIZING
ACTIVITIES; THAT THE DISTRIBUTION OF ONE "NO UNION" HANDBILL TO ONE
EMPLOYEE IN A WORK AREA DURING DUTY HOURS WITHOUT MANAGEMENT'S KNOWLEDGE
OR CONSENT NEVERTHELESS IMPROPERLY AFFECTED THE OUTCOME OF THE ELECTION;
THAT A MANAGEMENT REPRESENTATIVE'S CUSTOMARY SALUTATION, "HOW IS IT
GOING?" TO "NO UNION" CAMPAIGNERS CONSTITUTED IMPROPER CONDUCT; AND
THAT A LEAFLET DISTRIBUTED BY "NO UNION" CAMPAIGNERS 4 DAYS PRIOR TO THE
ELECTION IMPROPERLY AFFECTED THE RESULTS THEREOF, AND COULD NOT HAVE
BEEN ADEQUATELY REBUTTED, EXPLAINED OR CLARIFIED. IN THE ASSISTANT
REGIONAL DIRECTOR'S REPORT AND FINDINGS ON OBJECTIONS, HE FOUND THAT
EACH OF THE FOUR OBJECTIONS TAKEN INDIVIDUALLY OR CONSIDERED IN THEIR
TOTALITY COULD NOT HAVE AFFECTED THE OUTCOME OF THE ELECTION. THE
ASSISTANT SECRETARY, IN AGREEMENT WITH THE ASSISTANT REGIONAL DIRECTOR,
AND BASED ON HIS REASONING, FOUND NO MERIT TO THE OBJECTIONS AND DENIED
YOUR REQUEST FOR REVIEW OF THE ASSISTANT REGIONAL DIRECTOR'S REPORT AND
FINDINGS.
IN YOUR APPEAL TO THE COUNCIL, YOU CONTEND THAT THE ASSISTANT
SECRETARY'S DECISION PRESENTS A MAJOR POLICY ISSUE AS TO THE STANDARD OF
CONDUCT WHICH MUST BE FOLLOWED BY MANAGEMENT REPRESENTATIVES DURING AN
ELECTION CAMPAIGN. YOU ALSO ALLEGE THAT THE DECISION OF THE ASSISTANT
SECRETARY WAS ARBITRARY AND CAPRICIOUS IN THAT HE FAILED TO ADEQUATELY
INVESTIGATE AND CONSIDER NFFE'S CONTENTIONS, AND TO ORDER A HEARING IN
THIS CASE, AND THAT HIS FAILURE TO ORDER A HEARING ALSO RAISES A MAJOR
POLICY ISSUE AS TO WHAT BURDEN A COMPLAINANT MUST MEET IN ORDER TO
OBTAIN A HEARING ON THE MATTERS CHARGED.
IN THE COUNCIL'S VIEW, YOUR PETITION FOR REVIEW DOES NOT MEET THE
REQUIREMENTS OF SECTION 2411.12 OF THE COUNCIL'S RULES; THAT IS, THE
DECISION OF THE ASSISTANT SECRETARY NEITHER APPEARS TO BE ARBITRARY AND
CAPRICIOUS NOR DOES IT PRESENT A MAJOR POLICY ISSUE. WITH RESPECT TO
THE ALLEGED MAJOR POLICY ISSUE REGARDING THE STANDARD OF CONDUCT WHICH
MANAGEMENT REPRESENTATIVES SHOULD FOLLOW DURING AN ELECTION CAMPAIGN,
THE COUNCIL IS OF THE OPINION THAT, IN THE CIRCUMSTANCES PRESENTED, THE
ASSISTANT SECRETARY'S CONCLUSION THAT NO IMPROPER CONDUCT OCCURRED WHICH
MAY HAVE AFFECTED THE OUTCOME OF THE ELECTION OR WHICH WOULD OTHERWISE
WARRANT SETTING ASIDE THE ELECTION, DOES NOT RAISE A MAJOR POLICY ISSUE
WARRANTING COUNCIL REVIEW. AS TO YOUR CONTENTION THAT THE ASSISTANT
SECRETARY'S DECISION WAS ARBITRARY AND CAPRICIOUS IN THAT HE FAILED TO
CONSIDER YOUR OBJECTIONS AND TO ORDER A HEARING THEREON, IT DOES NOT
APPEAR THAT THE ASSISTANT SECRETARY ACTED WITHOUT REASONABLE
JUSTIFICATION, SINCE YOUR APPEAL DOES NOT DISCLOSE ANY OBJECTION WHICH
THE ASSISTANT SECRETARY FAILED TO CONSIDER FULLY, NOR DOES IT IDENTIFY
ANY SUBSTANTIAL FACTUAL ISSUES WHICH WOULD REQUIRE A HEARING UNDER THE
ASSISTANT SECRETARY'S RULES. SIMILARLY, THE ASSISTANT SECRETARY'S
FAILURE TO ORDER A HEARING DOES NOT PRESENT A MAJOR POLICY ISSUE.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS AND DOES NOT PRESENT A MAJOR POLICY ISSUE, YOUR APPEAL
FAILS TO MEET THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.12
OF THE COUNCIL'S RULES. ACCORDINGLY, YOUR PETITION FOR REVIEW IS
DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
I. L. BECKER
SSA
D. W. RICE
AFGE
3 FLRC 421; FLRC NO. 75A-17; JUNE 26, 1975.
MR. LEE V. LANGSTER
EXECUTIVE VICE PRESIDENT
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1395
165 NORTH CANAL STREET
CHICAGO, ILLINOIS 60606
(SYNOPSIS) FLRC NO. 75A-17
SOCIAL SECURITY ADMINISTRATION, BUREAU OF RETIREMENT AND SURVIVORS
INSURANCE, CHICAGO, ILLINOIS AND AFGE, NATIONAL COUNCIL OF SOCIAL
SECURITY PAYMENT CENTER LOCALS, LOCAL 1395 (DAVIS, ARBITRATOR). THE
ARBITRATOR DETERMINED THAT THE UNION'S GRIEVANCE CONCERNING A TERMINATED
PROBATIONARY EMPLOYEE WAS NOT ARBITRABLE. THE UNION EXCEPTED TO THE
ARBITRATOR'S AWARD ON VARIOUS GROUNDS, INCLUDING (1) IN EFFECT, THAT THE
ARBITRATOR'S OPINION AND AWARD DO NOT DRAW THEIR ESSENCE FROM THE
AGREEMENT; (2) THAT THE ARBITRATOR'S OPINION AND AWARD VIOLATE THE
ORDER; AND (3) THAT THE ARBITRATOR FAILED TO ANSWER ALL THE ISSUES
PRESENTED. SEPARATELY, THE GRIEVANT, COLERIDGE D. MILLER, ALSO FILED A
PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD.
COUNCIL ACTIONS (JUNE 26, 1975). THE COUNCIL HELD THAT THE UNION'S
EXCEPTIONS PROVIDE NO BASIS FOR ACCEPTANCE OF A PETITION FOR REVIEW OF
AN ARBITRATION AWARD, PRINCIPALLY BECAUSE THE EXCEPTIONS DO NOT APPEAR
TO BE SUPPORTED BY FACTS AND CIRCUMSTANCES IN THE UNION'S PETITION.
ACCORDINGLY, THE COUNCIL DENIED THE UNION'S PETITION FOR REVIEW SINCE IT
FAILED TO MEET THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.32
OF THE COUNCIL'S RULES OF PROCEDURE (5 CFR 2411.32).
AS TO THE GRIEVANT'S SEPARATE APPEAL, THE COUNCIL RULED THAT, SINCE
IT DOES NOT APPEAR THAT THE GRIEVANT PARTICIPATED AS A "PARTY" IN THE
PROCEEDING BEFORE THE ARBITRATOR, THE GRIEVANT IS NOT A "PARTY" TO THE
INSTANT CASE BEFORE THE COUNCIL, UNDER SECTION 2411.3(C)(3) OF ITS RULES
(5 CFR 2411.3(C)(3)) AND IS NOT ENTITLED TO FILE A PETITION FOR REVIEW
UNDER SECTION 2411.33(A) (5 CFR 2411.33(A)). HOWEVER, UNDER THE
CIRCUMSTANCES, THE COUNCIL CONSIDERED THE GRIEVANT'S CONTENTIONS AS A
SUPPLEMENT TO THE UNION'S PETITION.
DEAR MR. LANGSTER:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF AN
ARBITRATION AWARD AND THE SUPPLEMENTS TO YOUR APPEAL MADE BY AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES AND COLERIDGE D. MILLER, AND THE
AGENCY'S OPPOSITION THERETO, IN THE ABOVE-ENTITLED CASE.
BASED ON THE FACTS DESCRIBED IN THE AWARD, IT APPEARS THAT COLERIDGE
D. MILLER, A PROBATIONARY EMPLOYEE, WAS TOLD THAT HE WAS RESPONSIBLE FOR
SSA CLAIMS MATERIAL THAT HAD FALLEN OR BEEN THROWN FROM A WINDOW OF THE
PAYMENT CENTER. MILLER DENIED THIS CHARGE, AND, WHEN ASKED TO RESIGN,
DECLINED TO DO SO. THE FOLLOWING DAY MILLER WAS TOLD THAT, BECAUSE OF
THE INCIDENT, HIS TERMINATION WAS BEING RECOMMENDED. THE NEXT MORNING
MILLER FILED A GRIEVANCE (WHICH, ACCORDING TO THE UNION, WAS A TYPE A
(EMPLOYEE) GRIEVANCE /1/ AS DISTINGUISHED FROM A TYPE B (UNION)
GRIEVANCE), /2/ REQUESTING "CONTINUOUS EMPLOYMENT AND RELIEF FROM THE
CHARGES THAT I IMPROPERLY HANDLED SSA CLAIMS MATERIAL OR OTHER
GOVERNMENT PROPERTY." LATER THAT DAY MILLER AND THE UNION RECEIVED
COPIES OF A NOTICE TERMINATING MILLER'S EMPLOYMENT AS OF THE NEXT DAY
FOR "FAILURE TO CARRY OUT HIS WORK ASSIGNMENT, FAILURE TO MAKE AN
ACCURATE REPORT OF WORK ACCOMPLISHED, AND FAILURE TO REPORT THE POSSIBLE
LOSS OR DESTRUCTION OF OFFICIAL DOCUMENTS FOR WHICH HE HAD BEEN ASSIGNED
RESPONSIBILITY FOR FILING."
THE AGENCY SUBSEQUENTLY DENIED MILLER'S TYPE A GRIEVANCE ON THE
GROUND THAT, BEFORE ITS RECEIPT, A REQUEST TO SEPARATE MILLER HAD BEEN
MADE, AND HIS TERMINATION DURING HIS PROBATIONARY PERIOD WAS A
DISCIPLINARY ACTION PRECLUDED FROM COVERAGE UNDER THE NEGOTIATED
GRIEVANCE PROCEDURE. IN RESPONSE, THE UNION STATED THAT MILLER'S
GRIEVANCE WAS BASED NOT ON THE SEPARATE ACTION, BUT SOLELY ON THE
CHARGE, WHICH MILLER DENIED, THAT HE IMPROPERLY HANDLED MATERIALS. THE
UNION LATER CONTENDED THAT MILLER WAS FURTHER AGGRIEVED BY THE AGENCY'S
FAILURE TO GIVE HIM 2 WEEKS ADVANCE NOTICE OF HIS TERMINATION. /3/ THE
UNION FILED A TYPE B GRIEVANCE ON THE ISSUE OF WHETHER A PROBATIONARY
EMPLOYEE WHO HAS BEEN TERMINATED FROM THE FEDERAL SERVICE IS ENTITLED TO
HAVE A GRIEVANCE REVIEWED UNDER THE MASTER AGREEMENT WHEN THAT GRIEVANCE
PRECEDED THE TERMINATION ACTION AND AROSE AS A RESULT OF THE CHARGE ON
WHICH THE TERMINATION ACTION WAS BASED.
THE UNION AND THE AGENCY THEREAFTER TOOK THE MATTER TO ARBITRATION,
AND STIPULATED THAT THE ARBITRATOR WAS TO DECIDE TWO ISSUES: (1) A
THRESHOLD ISSUE OF ARBITRABILITY, AND (2) THE MERITS OF THE GRIEVANT'S
CASE ONLY IF THE GRIEVANCE WERE FOUND ARBITRABLE. SPECIFICALLY, THE
PARTIES' FIRST STIPULATED ISSUE ASKED THE ARBITRATOR TO DECIDE:
WHETHER A PROBATIONARY EMPLOYEE WHO HAS BEEN TERMINATED FROM THE
FEDERAL SERVICE IS
ENTITLED TO HAVE A GRIEVANCE REVIEWED UNDER THE MASTER AGREEMENT WHEN
THAT GRIEVANCE PRECEDED
THE TERMINATION AND AROSE AS A RESULT OF A CHARGE ON WHICH THE
TERMINATION ACTION WAS BASED,
AND WHETHER COLERIDGE D. MILLER WAS SO ENTITLED BASED ON THE
GRIEVANCE HE FILED PRIOR TO
RECEIVING NOTICE OF HIS TERMINATION?
AS HIS AWARD, THE ARBITRATOR DETERMINED THAT:
THE ANSWER TO THE QUESTIONS POSED IN THE FOREGOING STIPULATION OF
ISSUE IS "NO" IN BOTH
INSTANCES.
(AS TO THE SECOND STIPULATED ISSUE, THE ARBITRATOR NOTED IN THE
OPINION ACCOMPANYING HIS AWARD THAT "BECAUSE OF THE FINDING OF
NONARBITRABILITY, THE MILLER GRIEVANCE HAS NOT BEEN CONSIDERED ON ITS
MERITS.") THE ARBITRATOR STATED THAT "THE EVIDENCE CONTAINED IN CONTRACT
ARTICLE XXVII, SECTION D AND ADMINISTRATION EXHIBITS 1, 4-10 IS
CONCLUSIVE" THAT A PROBATIONARY EMPLOYEE HAS NO "CONTRACTUAL RIGHT" TO
GRIEVE A TERMINATION. HE FURTHER STATED THAT THE ISSUE HERE WAS "NOT
MILLER'S DISCHARGE BUT WHETHER A GRIEVANCE CONCERNING THE ALLEGED
OFFENSE THAT LED TO MILLER'S TERMINATION, BEING GRIEVED JUST PRIOR TO
THE DISCHARGE, CAN BE ARBITRATED." THE ARBITRATOR CONCLUDED THAT, FOR
VARIOUS REASONS, THE MILLER GRIEVANCE WAS NOT ARBITRABLE. THE
ARBITRATOR NOTED THAT HAD MILLER NOT BEEN TERMINATED, AND HAD HE FILED
THE GRIEVANCE HERE PRESENTED, THE GRIEVANCE PRESUMABLY COULD HAVE BEEN
CARRIED TO ARBITRATION. HE STATED THAT "IT WAS THE TERMINATION OF
MILLER THAT BARS FROM ARBITRATION THE GRIEVANCE HERE AT ISSUE."
THE UNION REQUESTS THAT THE COUNCIL ACCEPT ITS PETITION FOR REVIEW OF
THE ARBITRATOR'S AWARD ON THE BASIS OF THE THREE EXCEPTIONS DISCUSSED
BELOW.
UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE, REVIEW OF
AN ARBITRATION AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON
THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE
EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES
APPLICABLE LAW, APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS
SIMILAR TO THOSE UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE
SUSTAINED BY COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS."
THE UNION'S FIRST EXCEPTION ALLEGES, IN EFFECT, THAT THE ARBITRATOR'S
OPINION AND AWARD DO NOT DRAW THEIR ESSENCE FROM THE PARTIES' COLLECTIVE
BARGAINING AGREEMENT. THE UNION CONTENDS THAT, EXCEPT FOR THE
MISCONSTRUCTION BY THE ARBITRATOR OF ONE SECTION (ARTICLE XXVII, SECTION
D) OF THE AGREEMENT, THE ARBITRATOR DOES NOT REFER TO SPECIFIC ARTICLES
OF THE AGREEMENT. THE UNION ALSO ASSERTS THAT THE ARBITRATOR'S OPINION
AND AWARD REFLECT A FUNDAMENTAL MISUNDERSTANDING OF THE RELATIONSHIP
BETWEEN THE AGREEMENT AND THE AGENCY EXHIBITS REFERRED TO THEREIN.
COURTS SUSTAIN CHALLENGES TO ARBITRATION AWARDS IN THE PRIVATE SECTOR
ON THE GROUND THAT THE AWARD DOES NOT DRAW ITS ESSENCE FROM THE PARTIES'
COLLECTIVE BARGAINING AGREEMENT. SEE, E.G., UNITED STEELWORKERS OF
AMERICA V. ENTERPRISE WHEEL & CAR CORP., 363 U.S. 593, 597 (1960),
WHEREIN THE COURT STATED THAT "AN ARBITRATOR IS CONFINED TO
INTERPRETATION AND APPLICATION OF THE COLLECTIVE BARGAINING AGREEMENT;
HE DOES NOT SIT TO DISPENSE HIS OWN BRAND OF INDUSTRIAL JUSTICE. HE MAY
OF COURSE LOOK FOR GUIDANCE FROM MANY SOURCES, YET HIS AWARD IS
LEGITIMATE ONLY SO LONG AS IT DRAWS ITS ESSENCE FROM THE COLLECTIVE
BARGAINING AGREEMENT." SEE ALSO THE COUNCIL'S DECISION IN PICATINNY
ARSENAL, DEPT. OF THE ARMY, AND LOCAL 225, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES (FALCONE, ARBITRATOR), FLRC NO. 72A-44 (MAY 2,
1973), REPORT NO. 37.
IN THE COUNCIL'S VIEW, THE UNION'S FIRST EXCEPTION, WHILE IT DOES
STATE A GROUND UPON WHICH THE COUNCIL WILL GRANT REVIEW OF AN AWARD,
DOES NOT APPEAR TO BE SUPPORTED BY FACTS AND CIRCUMSTANCES DESCRIBED IN
THE UNION'S PETITION, AS REQUIRED BY SECTION 2411.32. MOREOVER, IT
APPEARS THAT THE UNION IS, IN SUBSTANCE, CONTENDING THAT THE ARBITRATOR
REACHED AN INCORRECT RESULT IN HIS INTERPRETATION OF ARTICLE XXVII,
SECTION D OF THE AGREEMENT. THE COUNCIL HAS CONSISTENTLY HELD, AS HAVE
THE COURTS WITH RESPECT TO ARBITRATION IN THE PRIVATE SECTOR, THAT THE
INTERPRETATION OF CONTRACT PROVISIONS IS A MATTER TO BE LEFT TO THE
ARBITRATOR'S JUDGMENT. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 2649 AND OFFICE OF ECONOMIC OPPORTUNITY (SISK,
ARBITRATOR), FLRC NO. 74A-17 (DECEMBER 5, 1974), REPORT NO. 61.
FURTHER, THE FACT THAT THE ARBITRATOR DID NOT MENTION A SPECIFIC
AGREEMENT PROVISION DOES NOT ESTABLISH THAT THE ARBITRATOR DID NOT RULE
UPON IT. SMALL BUSINESS ADMINISTRATION AND AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2532 (KLEEB, ARBITRATOR), FLRC NO. 73A-44
(NOVEMBER 6, 1974), REPORT NO. 60. THEREFORE, THIS EXCEPTION PROVIDES
NO BASIS FOR ACCEPTANCE OF YOUR PETITION UNDER SECTION 2411.32 OF THE
COUNCIL'S RULES.
THE UNION'S SECOND EXCEPTION ALLEGES THAT THE ARBITRATOR'S OPINION
AND AWARD VIOLATE SECTIONS 10(E) /4/ AND 11(A) /5/ OF THE ORDER. THE
UNION ASSERTS THAT IT HAD THE RIGHT, UNDER SECTIONS 10(E) AND 11(A), TO
NEGOTIATE THE SCOPE OF THE GRIEVANCE PROCEDURE FOR ALL EMPLOYEES IN THE
UNIT, INCLUDING PROBATIONARY EMPLOYEES AND THEIR TERMINATION. THE UNION
FURTHER CONTENDS THAT THE ARBITRATOR'S OPINION AND AWARD DENIED
PROBATIONARY EMPLOYEES THESE RIGHTS.
IN THE COUNCIL'S OPINION, WHILE THIS EXCEPTION WHICH ALLEGES THAT THE
AWARD VIOLATES THE ORDER DOES STATES A GROUND FOR REVIEW, IT DOES NOT
APPEAR TO BE SUPPORTED BY FACTS AND CIRCUMSTANCES DESCRIBED IN THE
UNION'S PETITION, AS REQUIRED BY SECTION 2411.32. THE QUESTION IN THIS
CASE FOR THE ARBITRATOR WAS WHETHER THE GRIEVANCE PROCEDURE IN FACT DID
COVER MILLER'S GRIEVANCE, NOT WHETHER A NEGOTIATED GRIEVANCE PROCEDURE
MAY EXTEND TO PROBATIONARY EMPLOYEES AND THEIR TERMINATION. THE
ARBITRATOR INTERPRETED THE AGREEMENT AND DETERMINED THAT THE GRIEVANCE
PROCEDURE DID NOT COVER MILLER'S GRIEVANCE, AND THAT MILLER WAS NOT
ENTITLED TO HAVE A GRIEVANCE REVIEWED UNDER THE AGREEMENT WHEN THAT
GRIEVANCE PRECEDED HIS TERMINATION AND AROSE AS A RESULT OF A CHARGE ON
WHICH THE TERMINATION ACTION WAS BASED. THEREFORE, THIS EXCEPTION
PROVIDES NO BASIS FOR ACCEPTANCE OF YOUR PETITION UNDER SECTION 2411.32
OF THE COUNCIL'S RULES.
THE UNION'S THIRD EXCEPTION ALLEGES THAT THE ARBITRATOR FAILED TO
ANSWER ALL OF THE ISSUES PRESENTED. THE COUNCIL HAS STATED THAT IT WILL
GRANT A PETITION FOR REVIEW OF AN ARBITRATION AWARD WHERE IT APPEARS,
BASED UPON THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT
THE ARBITRATOR DID NOT DECIDE THE QUESTION SUBMITTED TO ARBITRATION.
LONG BEACH NAVAL SHIPYARD AND FEDERAL EMPLOYEES METAL TRADES COUNCIL
(STEESE, ARBITRATOR), FLRC NO. 74A-40 (JANUARY 15, 1975), REPORT NO.
62. IN THE COUNCIL'S VIEW, WHILE THIS EXCEPTION DOES STATE A GROUND FOR
REVIEW, IT DOES NOT APPEAR TO BE SUPPORTED BY FACTS AND CIRCUMSTANCES
DESCRIBED IN THE UNION'S PETITION, AS REQUIRED BY SECTION 2411.32. THE
UNION CONTENDS THAT THE ARBITRATOR'S OPINION AND AWARD FAILED TO EXAMINE
THE ISSUE OF WHETHER THE PARTIES HAD NEGOTIATED PROVISIONS ALLOWING
PROBATIONARY EMPLOYEES TO FILE GRIEVANCES REGARDING TERMINATION OR A
CIRCUMSTANCE WHICH DIRECTLY LED TO A DISCHARGE OF THE PROBATIONARY
EMPLOYEE. HOWEVER, AS INDICATED IN THE PRECEDING PARAGRAPH, THIS IS THE
ISSUE TO WHICH THE ARBITRATOR ADDRESSED HIMSELF. AS HIS AWARD, HE
STATED THE ISSUE AS STIPULATED BY THE PARTIES AND ANSWERED IT.
THEREFORE, THIS EXCEPTION PROVIDES NO BASIS FOR ACCEPTANCE OF YOUR
PETITION UNDER SECTION 2411.32 OF THE COUNCIL'S RULES.
ACCORDINGLY, THE UNION'S PETITION IS DENIED BECAUSE IT FAILS TO MEET
THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.32 OF THE
COUNCIL'S RULES OF PROCEDURE.
BY THE COUNCIL.
CC: I. L. BECKER
SSA
A. M. FREEDMAN
C. M. WEBBER
AFGE
MR. ALAN M. FREEDMAN
WOODLAWN LAW OFFICE
1105 EAST 63RD STREET
CHICAGO, ILLINOIS 60637
DEAR MR. FREEDMAN:
REFERENCE IS MADE TO YOUR PETITION FOR REVIEW OF THE ARBITRATOR'S
AWARD FILED IN THE ABOVE-ENTITLED CASE.
UNDER SECTION 2411.33(A) OF THE COUNCIL'S RULES OF PROCEDURE, A
PETITION FOR REVIEW OF AN ARBITRATOR'S AWARD MAY BE FILED ONLY BY THE
RESPECTIVE "PARTIES" TO THE CASE BEFORE THE COUNCIL. THE TERM "PARTY"
IS DEFINED IN SECTION 2411.3(C)(3) OF THE COUNCIL'S RULES, AS FOLLOWS:
(C) "PARTY" MEANS ANY PERSON, EMPLOYEE, LABOR ORGANIZATION, OR AGENCY
THAT PARTICIPATED AS
A PARTY--
(3) IN A MATTER WHERE THE AWARD OF AN ARBITRATOR WAS ISSUED UNDER THE
ORDER.
IN THIS CASE, THE ARBITRATOR'S OPINION AND AWARD CLEARLY INDICATE
THAT TWO PARTIES (THE UNION AND THE AGENCY) PARTICIPATED IN THE
ARBITRATION PROCEEDING. CONSEQUENTLY, IT DOES NOT APPEAR FROM THE
ARBITRATOR'S OPINION AND AWARD THAT THE GRIEVANT, COLERIDGE D. MILLER,
PARTICIPATED AS A "PARTY" IN THE PROCEEDING BEFORE THE ARBITRATOR.
ACCORDINGLY, THE GRIEVANT IS NOT A "PARTY" TO THE INSTANT CASE BEFORE
THE COUNCIL, UNDER SECTION 2411.3(C)(3) OF THE COUNCIL'S RULES, AND IS
NOT ENTITLED TO FILE A PETITION FOR REVIEW UNDER SECTION 2411.33(A).
HOWEVER, IN VIEW OF THE FACT THAT YOUR SUBMISSION WAS SUPPORTED BY
BOTH LOCAL NO. 1395 AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES SO
THAT, IN EFFECT, IT SUPPLEMENTED THE UNION'S PETITION, THE COUNCIL HAS
CAREFULLY CONSIDERED THE CONTENTIONS CONTAINED THEREIN AS A SUPPLEMENT
TO THE UNION'S PETITION.
IN THIS REGARD, ON THIS SAME DATE, THE PARTIES TO THE ABOVE-ENTITLED
CASE ARE BEING NOTIFIED THAT THE COUNCIL HAS DENIED THE UNION'S PETITION
FOR REVIEW. (A COPY OF THE COUNCIL'S LETTER IN THIS REGARD IS ENCLOSED
FOR YOUR INFORMATION.)
BY THE COUNCIL.
ENCLOSURE
CC: I. L. BECHER
SSA
C. M. WEBBER
L. V. LANGSTER
AFGE
/1/ SECTION D OF ARTICLE XXVIII (GRIEVANCE PROCEDURE) OF THE
AGREEMENT PROVIDES, IN PERTINENT PART:
UNDER THIS AGREEMENT, GRIEVANCES SHALL BE DIVIDED IN TWO CATEGORIES:
TYPE A-- GRIEVANCES INITIATED BY INDIVIDUAL EMPLOYEES OR GROUPS OF
EMPLOYEES.
TYPE B-- DISPUTES INITIATED BY THE LOCAL AS TYPE B GRIEVANCES ARE NOT
GRIEVANCES WITHIN THE
MEANING OF THE CSC STANDARDS AND SUCH STANDARDS DO NOT APPLY TO THEM.
A TYPE A GRIEVANCE SHALL BE CONSIDERED AS ANY MATTER OF CONCERN OR
DISSATISFACTION TO AN
EMPLOYEE OR GROUP OF EMPLOYEES WHICH IS WITHIN THE CONTROL OF BUREAU
MANAGEMENT. THIS
INCLUDES, BUT IS NOT LIMITED TO, GRIEVANCES RELATED TO THE
INTERPRETATION OR APPLICATION OF
BUREAU, SSA, OR HEW POLICIES OR THIS AGREEMENT, BUT DOES NOT INCLUDE
MATTERS; 1) OVER WHICH
THE BUREAU, SSA, OR HEW DOES NOT HAVE AUTHORITY TO MAKE FINAL
DECISIONS AS PROVIDED BY LAW OR
THE REGULATIONS OF THE CIVIL SERVICE COMMISSION . . . TYPE A
GRIEVANCES . . . MAY NOT BE
INITIATED BY THE LOCAL.
/2/ ARTICLE XXVIII, SECTION H OF THE AGREEMENT PROVIDES, IN PERTINENT
PART:
A TYPE B GRIEVANCE IS A DISPUTE INITIATED BY THE LOCAL OVER THE
INTERPRETATION OR
APPLICATION OF THIS AGREEMENT. TYPE B GRIEVANCE PROCEDURES SHALL NOT
BE USED IN THE
ADJUSTMENT OF INDIVIDUAL GRIEVANCES. HOWEVER, ARBITRATION DECISIONS
SHALL BE APPLIED TO
APPROPRIATE INDIVIDUAL CASES . . .
/3/ SECTION D OF ARTICLE XXVII (DISCIPLINARY ACTION) OF THE AGREEMENT
STATES:
ALTHOUGH TERMINATION OF A PROBATIONARY EMPLOYEE IS NOT AN ADVERSE
ACTION, THE PAYMENT
CENTER AGREES THAT, TO THE EXTENT POSSIBLE, SUCH EMPLOYEE WILL BE
GIVEN 2 WEEKS ADVANCE NOTICE
PRIOR TO THE EFFECTIVE DATE OF SUCH ACTION.
/4/ SECTION 10(E) STATES IN PERTINENT PART:
WHEN A LABOR ORGANIZATION HAS BEEN ACCORDED EXCLUSIVE RECOGNITION, IT
IS THE EXCLUSIVE
REPRESENTATIVE OF EMPLOYEES IN THE UNIT AND IS ENTITLED TO ACT FOR
AND TO NEGOTIATE AGREEMENTS
COVERING ALL EMPLOYEES IN THE UNIT . . .
/5/ SECTION 11(A), IN EFFECT AT THE TIME THE PETITION WAS FILED,
STATED:
AN AGENCY AND A LABOR ORGANIZATION THAT HAS BEEN ACCORDED EXCLUSIVE
RECOGNITION, THROUGH
APPROPRIATE REPRESENTATIVES, SHALL MEET AT REASONABLE TIMES AND
CONFER IN GOOD FAITH WITH
RESPECT TO PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING
WORKING CONDITIONS, SO FAR
AS THEY MAY BE APPROPRIATE UNDER APPLICABLE LAWS AND REGULATIONS,
INCLUDING POLICIES SET FORTH
IN THE FEDERAL PERSONNEL MANUAL, PUBLISHED AGENCY POLICIES AND
REGULATIONS, A NATIONAL OR
OTHER CONTROLLING AGREEMENT AT A HIGHER LEVEL IN THE AGENCY, AND THIS
ORDER. THEY MAY
NEGOTIATE AN AGREEMENT, OR ANY QUESTION ARISING THEREUNDER;
DETERMINE APPROPRIATE TECHNIQUES,
CONSISTENT WITH SECTION 17 OF THIS ORDER, TO ASSIST IN SUCH
NEGOTIATION; AND EXECUTE A WRITTEN
AGREEMENT OR MEMORANDUM OF UNDERSTANDING.
WHILE THE SUBJECT AWARD OF THE ARBITRATOR WAS MADE PRIOR TO THE
ISSUANCE OF E.O. 11838, SECTION 11(A) OF THE ORDER WAS NOT CHANGED BY
E.O. 11838 IN RESPECTS WHICH ARE MATERIAL IN THE PRESENT CASE.
3 FLRC 415; FLRC NO. 75A-7; JUNE 26, 1975.
MR. DAVID G. JENNINGS
GOODSTEIN & JENNINGS, PA
2124 DORCHESTER ROAD
NORTH CHARLESTON, SOUTH CAROLINA 29405
(SYNOPSIS) FLRC NO. 74A-7
CHARLESTON NAVAL SHIPYARD AND FEDERAL EMPLOYEES METAL TRADES COUNCIL
OF CHARLESTON (WILLIAMS, ARBITRATOR). THE ARBITRATOR UPHELD THE
AGENCY'S DISCIPLINARY ACTION AGAINST FOUR GRIEVANTS (ALTHOUGH REDUCING
THE 2-DAY SUSPENSION OF ONE GRIEVANT TO A REPRIMAND WITH BACKPAY FOR ANY
LOSS OF COMPENSATION DUE TO THE SUSPENSION). THE UNION EXCEPTED TO THE
ARBITRATOR'S AWARD, ALLEGING THAT THE ARBITRATOR ESSENTIALLY REWROTE THE
PARTIES' AGREEMENT BY DEVISING AN AGREEMENT PROVISION THAT DOES NOT
EXIST.
COUNCIL ACTION (JUNE 26, 1975). THE COUNCIL FOUND THAT THE UNION'S
PETITION DOES NOT PRESENT FACTS AND CIRCUMSTANCES NECESSARY TO SUPPORT
ITS ASSERTION THAT THE ARBITRATOR ATTEMPTED TO ADD TO OR REWRITE THE
NEGOTIATED AGREEMENT, THEREBY EXCEEDING HIS AUTHORITY. ACCORDINGLY, THE
COUNCIL DENIED REVIEW OF THE UNION'S PETITION SINCE IT FAILED TO MEET
THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.32 OF THE
COUNCIL'S RULES OF PROCEDURE (5 CFR 2411.32).
DEAR MR. JENNINGS:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF AN
ARBITRATOR'S AWARD FILED IN THE ABOVE-ENTITLED CASE.
THE AWARD SHOWS THAT WHEN JOB RATINGS AND PAY RATES AT THE ACTIVITY
WERE CONVERTED TO THOSE ESTABLISHED BY THE FEDERAL WAGE SYSTEM, THE
NON-DESTRUCTIVE TEST DIVISION (NDT) INSPECTORS ("INSPECTORS") WERE
DIRECTLY AFFECTED SINCE THEIR NEW RATES WERE COMPARABLE TO MECHANICS'
RATES WHEREAS THE OLD RATES WERE COMPARABLE TO FOREMEN'S RATES. THE
RULES FOR CONVERSION DID NOT PROVIDE FOR A REDUCTION IN PAY, BUT THE
RULES LIMITED PAY INCREASES UNTIL THE OLD AND NEW PAY RATES WERE
EVENTUALLY EQUALIZED. THE FIRST DAY OF WORK UNDER THE NEW RATES WAS
INFORMALLY IDENTIFIED BY THE INSPECTORS AS "DROP DEAD DAY: ("D" DAY),
AND AN UNIDENTIFIED GROUP OF THEM CONTRIBUTED MONEY TO PUBLICIZE IT.
WHEN "D" DAY ARRIVED, 28 OF THE 34 INSPECTORS DID NOT REPORT FOR WORK
COMPARED WITH AN AVERAGE ABSENCE OF 8 OR 9 UNDER NORMAL CIRCUMSTANCES.
ON THE BASIS OF AN INVESTIGATION, INCLUDING VISITS BY SUPERVISORS TO THE
HOMES OF SOME ABSENT INSPECTORS, THE ACTIVITY CHARGED SEVEN OF THE
ABSENT INSPECTORS WITH A VIOLATION OF RULE 5 OF THE "STANDARD SCHEDULE
OF DISCIPLINARY OFFENSES FOR CIVIL EMPLOYEES IN THE NAVAL
ESTABLISHMENT," /1/ AND ISSUED LETTERS OF REPRIMAND TO SIX EMPLOYEES AND
A 2-DAY SUSPENSION TO ANOTHER. OF THE FOUR GRIEVANTS IN THIS CASE, EACH
OF WHOSE HOME WAS VISITED BY SUPERVISORS, ONE WAS GIVEN THE 2-DAY
SUSPENSION WHILE THE OTHER THREE RECEIVED LETTERS OF REPRIMAND.
THE ISSUE SUBMITTED TO ARBITRATION WAS:
WERE THE GRIEVANTS DISCIPLINED FOR JUST CASE? 2/ IF NOT, WHAT SHALL
BE THE REMEDY?
THE ARBITRATOR FOUND THAT THE "EXCESSIVE ABSENCES . . . CREATE THE
REASONABLE INFERENCE THAT CONCERTED ACTIVITY WAS INVOLVED," AND THAT THE
ACTIVITY PROCEEDED WITH A FAIR INVESTIGATION TO DETERMINE THE LEGITIMACY
OF THE ABSENCES. /3/ HE FURTHER FOUND THAT, GIVEN THE CONTEXT OF THE
GRIEVANTS' GENERAL AND MEDICALLY UNSUPPORTED ASSERTIONS OF ILLNESS, THE
EVIDENCE ESTABLISHED VIOLATIONS OF RULE 5. HE DETERMINED THAT THESE
PROVEN OFFENSES WARRANTED DISCIPLINARY ACTION, AND THAT THE REPRIMANDS
ISSUED TO THE THREE GRIEVANTS WERE APPROPRIATE DISCIPLINARY ACTION.
HOWEVER, THE 2-DAY SUSPENSION OF THE FOURTH GRIEVANT WAS REDUCED TO A
REPRIMAND WITH BACKPAY FOR ANY LOST EARNINGS DUE TO THE SUSPENSION. THE
UNION THEN FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD WITH
THE COUNCIL.
UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE, REVIEW OF
AN ARBITRATION AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON
THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE
EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES
APPLICABLE LAW, APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS
SIMILAR TO THOSE UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE
SUSTAINED BY COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS."
IN ITS PETITION FOR REVIEW, THE UNION ALLEGES THAT THE ARBITRATOR'S
AWARD VIOLATED ARTICLE XIII, SECTION 4 OF THE COLLECTIVE BARGAINING
AGREEMENT. /4/ SINCE THE AGREEMENT DOES NOT REQUIRE A MEDICAL
CERTIFICATE FOR LESS THAN A 3-DAY ABSENCE NOR WERE ANY OF THE EMPLOYEES
INVOLVED REQUESTED TO FURNISH SUCH, THE UNION CONTENDS THAT THE
ARBITRATOR ESSENTIALLY REWROTE THE NEGOTIATED AGREEMENT AND ATTEMPTED TO
CREATE A BASIS FOR THE DISCIPLINARY ACTION BY DEVISING A CONTRACT
PROVISION THAT DOES NOT EXIST.
THE COUNCIL WILL GRANT A PETITION FOR REVIEW OF AN ARBITRATOR'S AWARD
WHERE IT APPEARS, BASED UPON THE FACTS AND CIRCUMSTANCES DESCRIBED IN
THE PETITION, THAT THE EXCEPTIONS TO THE AWARD PRESENT GROUNDS SIMILAR
TO THOSE UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE SUSTAINED BY
COURTS IN THE PRIVATE SECTOR. THE LAW IS WELL-SETTLED IN THE PRIVATE
SECTOR THAT A COURT WILL NOT SUBSTITUTE ITS INTERPRETATION OF A
COLLECTIVE BARGAINING AGREEMENT FOR THAT OF AN ARBITRATOR. THUS, THE
FACT THAT A COURT MIGHT HAVE APPLIED A DIFFERENT INTERPRETATION TO THE
PROVISIONS IN DISPUTE IS NO REASON TO SET ASIDE AN ARBITRATOR'S AWARD.
AS THE SUPREME COURT SAID IN UNITED STEELWORKERS OF AMERICA V.
ENTERPRISE WHEEL & CAR CORP., 363 U.S. 593, 599 (1960):
(T)HE QUESTION OF INTERPRETATION OF THE COLLECTIVE BARGAINING
AGREEMENT IS A QUESTION FOR
THE ARBITRATOR. IT IS THE ARBITRATOR'S CONSTRUCTION WHICH WAS
BARGAINED FOR; AND SO FAR AS
THE ARBITRATOR'S DECISION CONCERNS CONSTRUCTION OF THE CONTRACT, THE
COURTS HAVE NO BUSINESS
OVERRULING HIM BECAUSE THEIR INTERPRETATION OF THE CONTRACT IS
DIFFERENT FROM HIS.
THIS PRINCIPLE IS LIKEWISE APPLICABLE IN THE FEDERAL SECTOR UNDER
SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE. SEE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 12 AND U.S. DEPARTMENT OF
LABOR (DALY, ARBITRATOR), FLRC NO. 72A-55 (SEPTEMBER 17, 1973), REPORT
NO. 44 AND PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION AND FEDERAL
AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION (BRITTON,
ARBITRATOR), FLRC NO. 74A-1 (JUNE 21, 1974), REPORT NO. 53.
THE LAW IS EQUALLY WELL-SETTLED IN THE PRIVATE SECTOR THAT COURTS
SUSTAIN CHALLENGES TO ARBITRATION AWARDS ON THE GROUNDS THAT THE
ARBITRATOR EXCEEDED THE SCOPE OF HIS AUTHORITY BY ADDING TO OR MODIFYING
ANY OF THE TERMS OF THE AGREEMENT.
AS THE SUPREME COURT ALSO SAID IN ENTERPRISE (AT 597):
(A)N ARBITRATOR IS CONFINED TO INTERPRETATION AND APPLICATION OF THE
COLLECTIVE BARGAINING
AGREEMENT; HE DOES NOT SIT TO DISPENSE HIS OWN BRAND OF INDUSTRIAL
JUSTICE. HE MAY OF COURSE
LOOK FOR GUIDANCE FROM MANY SOURCES, YET HIS AWARD IS LEGITIMATE ONLY
SO LONG AS IT DRAWS ITS
ESSENCE FROM THE COLLECTIVE BARGAINING AGREEMENT. WHEN AN
ARBITRATOR'S WORDS MANIFEST AN
INFIDELITY TO THIS OBLIGATION, COURTS HAVE NO CHOICE BUT TO REFUSE
ENFORCEMENT OF THE AWARD.
THUS, COURTS WILL VACATE OR WILL REFUSE TO ENFORCE AN ARBITRATION
AWARD WHERE THE "AWARD IS CONTRARY TO THE EXPRESS LANGUAGE OF THE
COLLECTIVE BARGAINING AGREEMENT" OR WHERE "THE ARBITRATOR, INSTEAD OF
MERELY INTERPRETING THE COLLECTIVE BARGAINING AGREEMENT, ADDED TERMS TO
THE AGREEMENT." AMERADA HESS CORP. V. LOCAL 22026, FEDERAL LABOR UNION,
AFL-CIO, 385 F.SUPP. 279 (D.N.J. 1974). /5/ THESE PRINCIPLES ARE
LIKEWISE APPLICABLE IN THE FEDERAL SECTOR UNDER SECTION 2411.32 OF THE
COUNCIL'S RULES OF PROCEDURE. /6/
IN THE INSTANT CASE, HOWEVER, THE COUNCIL FINDS THAT THE UNION'S
PETITION DOES NOT PRESENT FACTS AND CIRCUMSTANCES NECESSARY TO SUPPORT
ITS ASSERTION THAT THE ARBITRATOR ATTEMPTED TO ADD TO OR REWRITE THE
NEGOTIATED AGREEMENT, THEREBY EXCEEDING HIS AUTHORITY. IN ALLEGING THAT
THE ARBITRATOR REQUIRED A DOCTOR'S CERTIFICATE IN VIOLATION OF THE
NEGOTIATED AGREEMENT AND, HENCE, REWROTE THE NEGOTIATED AGREEMENT, THE
UNION HAS MISINTERPRETED THE ARBITRATOR'S AWARD. CONTRARY TO THE
UNION'S ALLEGATION, THE ARBITRATOR, IN FINDING THAT THE GRIEVANTS WERE
DISCIPLINED FOR JUST CAUSE (I.E., FOR UNEXCUSED OR UNAUTHORIZED
ABSENCES), SIMPLY NOTED THAT THE ACTIVITY HAD ACCEPTED EXCUSES FOR
ABSENCES BY OTHER EMPLOYEES WHERE THOSE EXCUSES WERE CORROBORATED BY
EVIDENCE FROM A SOURCE INDEPENDENT OF THE EMPLOYEES' OWN SELF-SERVING
STATEMENTS. THE ARBITRATOR POINTED OUT THAT THE GRIEVANTS HEREIN "MADE
NO ATTEMPT TO PROVIDE EVIDENCE OF MEDICALLY DETERMINABLE SYMPTOMS OF
ILLNESS" AND "DID NOT PROVIDE ANY EVIDENCE FROM AN INDEPENDENT SOURCE TO
CORROBORATE THEIR ALLEGED SICKNESS." SINCE THE RESOLUTION OF THE
GRIEVANCE BY THE ARBITRATOR TURNED UPON WHETHER THE ABSENCES WERE
UNEXCUSED OR UNAUTHORIZED, EVIDENCE CONCERNING THE ALLEGED SICKNESS OF
THE GRIEVANTS WAS CLEARLY RELEVANT. HOWEVER, THERE ARE NOT FACTS AND
CIRCUMSTANCES TO SUPPORT THE UNION'S CONTENTION THAT THE ARBITRATOR
REQUIRED A MEDICAL CERTIFICATE TO SUBSTANTIATE THE GRIEVANTS' ALLEGED
ILLNESSES, THEREBY REWRITING ARTICLE XIII, SECTION 4, OF THE NEGOTIATED
AGREEMENT. HENCE, THE FACTS AND CIRCUMSTANCES DO NOT SUPPORT THE
UNION'S CONTENTION THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY BY
REWRITING THE AGREEMENT.
ACCORDINGLY, THE COUNCIL HAS DENIED REVIEW OF THE UNION'S PETITION
BECAUSE IT FAILS TO MEET THE REQUIREMENTS FOR REVIEW SET FORTH IN
SECTION 2411.32 OF ITS RULES OF PROCEDURE.
BY THE COUNCIL.
CC: COMMANDING OFFICER
CHARLESTON NAVAL SHIPYARD
CHARLESTON, S.C.
/1/ RULE 5 OF THIS SCHEDULE PROVIDES:
UNEXCUSED OR UNAUTHORIZED ABSENCE ON ONE OR MORE SCHEDULED DAYS OF
WORK
NUMBER OF OFFENSES . . . MINIMUM . . . MAXIMUM FIRST . . . REPRIMAND
. . . 5 DAYS SECOND
. . . 3 DAYS . . . 10 DAYS THIRD . . . 10 DAYS . . . REMOVAL
/2/ ARTICLE XVI, SECTION 2 OF THE PARTIES' COLLECTIVE BARGAINING
AGREEMENT PROVIDES THAT DISCIPLINARY ACTIONS SHALL BE TAKEN ONLY FOR
"JUST CAUSE." ACCORDING TO THE ARBITRATOR, "JUST CAUSE" IS FURTHER
DEFINED IN RULE 5 OF THE "STANDARD SCHEDULE."
/3/ THE ARBITRATOR, NOTING THAT EMPLOYEES MUST SEEK RESOLUTION OF
DISPUTES THROUGH ESTABLISHED DISPUTE SETTLEMENT SYSTEMS, POINTED OUT
THAT NEW RATING CLASSIFICATIONS UNDER THE FEDERAL WAGE SYSTEM COULD BE
APPEALED UNDER NAVY AND THE CIVIL SERVICE COMMISSION APPEAL PROCEDURES.
/4/ SECTION 4 OF ARTICLE XIII PROVIDES AS FOLLOWS:
EXCEPT AS HEREINAFTER PROVIDED, EMPLOYEES SHALL NOT BE REQUIRED TO
FURNISH A MEDICAL
CERTIFICATE TO SUBSTANTIATE REQUESTS FOR SICK LEAVE UNLESS SUCH LEAVE
EXCEED THREE (3) WORK
DAYS CONTINUOUS DURATION. IT IS AGREED AND UNDERSTOOD THAT
MANAGEMENT HAS THE RIGHT TO
REQUIRE THAT AN EMPLOYEE FURNISH A MEDICAL CERTIFICATE FOR EACH
ABSENCE WHICH HE CLAIMS WAS
DUE TO ILLNESS, ON THE FOLLOWING BASIS:
(A) THERE IS SUFFICIENT REASON TO SUSPECT THAT THE EMPLOYEE HAS
ABUSED SICK LEAVE
PRIVILEGES DURING THE PREVIOUS TWELVE (12) MONTH PERIOD:
(B) MANAGEMENT HAS COUNSELLED THE EMPLOYEE IN RESPECT TO THE USE OF
HIS SICK LEAVE, A
RECORD OF SUCH COUNSELLING IS ON FILE, AND THE SICK LEAVE RECORD OF
THE EMPLOYEE SUBSEQUENT TO
THE COUNSELLING DOES NOT INDICATE IMPROVEMENT;
(C) AND THE EMPLOYEE HAS BEEN FURNISHED WRITTEN NOTICE THAT HE MUST
FURNISH A MEDICAL
CERTIFICATE FOR EACH ABSENCE WHICH HE CLAIMS WAS DUE TO ILLNESS.
SUCH WRITTEN NOTICES WILL
NOT BE FILED IN THE EMPLOYEE'S OFFICIAL PERSONNEL FILE. IT IS
FURTHER AGREED THAT MANAGEMENT
WILL REVIEW THE SICK LEAVE RECORD OF EACH EMPLOYEE REQUIRED TO
FURNISH A MEDICAL CERTIFICATE
FOR EACH ABSENCE WHICH HE CLAIMS WAS DUE TO ILLNESS AT LEAST
ANNUALLY, AND UPON REQUEST OF THE
EMPLOYEE SEMI-ANNUALLY, AND WHERE SUCH REVIEW REVEALS NO SUFFICIENT
REASON TO SUSPECT THAT THE
EMPLOYEE HAS ABUSED SICK LEAVE PRIVILEGES DURING THE REVIEW PERIOD,
THE EMPLOYEE WILL BE
NOTIFIED IN WRITING THAT A MEDICAL CERTIFICATE WILL NOT LONGER BE
REQUIRED FOR EACH ABSENCE
WHICH IS CLAIMED AS DUE TO ILLNESS FOR PERIODS OF THREE (3) WORK DAYS
OR LESS.
/5/ SEE ALSO, BROTHERHOOD OF R.R. TRAINMEN V. CENTRAL OF GA. RY., 415
F.2D 403 (5TH CIR. 1969), CERT. DENIED, 396 U.S. 1008 (1970); LOCAL
342, UAW V. T.R.W., INC., 402 F.2D 727 (6TH CIR. 1968), CERT. DENIED,
395 U.S. 910 (1969); TORRINGTON CO. V. METAL PROD. WORKERS UNION LOCAL
1645, UAW, 362 F.2D 677 (2D CIR. 1966); GRAHAM V. ACME MKTS., INC., 299
F.SUPP. 1304 (E.D. PA. 1969).
/6/ OF COURSE, IN THE FEDERAL SECTOR, THE NEGOTIATED GRIEVANCE
PROCEDURE IS NOT NECESSARILY LIMITED TO GRIEVANCES OVER THE
INTERPRETATION AND APPLICATION OF THE AGREEMENT BECAUSE THE PARTIES MAY,
FOR EXAMPLE, AGREE TO EXTEND THE PROCEDURE TO GRIEVANCES ARISING UNDER
AGENCY REGULATIONS. (SEE SECTION 13 OF E.O. 11491, AS AMENDED, AND
SECTION VI OF THE COUNCIL'S 1975 REPORT AND RECOMMENDATIONS ON THE
AMENDMENT OF THE ORDER.)
3 FLRC 409; FLRC NO. 74A-76; JUNE 26, 1975.
MR. RUDY FRANK, CHIEF STEWARD
NATIONAL COUNCIL OF OEO
LOCALS, LOCAL 2677
1200 19TH STREET, NW.
WASHINGTON, D.C. 20506
(SYNOPSIS) FLRC NO. 74A-76
OFFICE OF ECONOMIC OPPORTUNITY AND AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES LOCAL 2677 (MATTHEWS, ARBITRATOR). THE ARBITRATOR UPHELD THE
UNION'S GRIEVANCE THAT AN EMPLOYEE HAD BEEN PRESELECTED FOR A POSITION
(SINCE ABOLISHED) IN VIOLATION OF THE COLLECTIVE BARGAINING AGREEMENT
AND, AS A REMEDY, DIRECTED THE AGENCY TO REVIEW THE ABOLITION OF THE
SUBJECT POSITION AND MAKE A NEW DETERMINATION WITH RESPECT THERETO;
SELECT THE GRIEVANT TO FILL THE VACANCY SHOULD THE POSITION BE
REESTABLISHED; AND GIVE PRIORITY CONSIDERATION FOR PROMOTION TO THE
GRIEVANT IF THE POSITION IS NOT REESTABLISHED. THE UNION FILED AN
EXCEPTION TO THE ARBITRATOR'S AWARD, IN EFFECT CHALLENGING THE
ARBITRATOR'S REASONING IN ARRIVING AT THE REMEDY WHICH FAILED TO DIRECT
THAT THE POSITION BE REESTABLISHED.
COUNCIL ACTION (JUNE 26, 1975). THE COUNCIL, RELYING IN PART ON ITS
DECISION IN THE DEPARTMENT OF LABOR CASE, FLRC NO. 72A-55 (REPORT NO.
44), DETERMINED THAT THE UNION'S EXCEPTION FAILED TO STATE A GROUND UPON
WHICH THE COUNCIL WILL ACCEPT A PETITION FOR REVIEW OF AN ARBITRATION
AWARD. ACCORDINGLY, THE COUNCIL DENIED REVIEW OF THE UNION'S PETITION
UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE (5 CFR
2411.32).
DEAR MR. FRANK:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF AN
ARBITRATOR'S AWARD, AND THE AGENCY'S OPPOSITION THERETO, FILED IN THE
ABOVE-ENTITLED CASE.
THE AWARD SHOWS THAT MR. O. MARION JONES, AN EQUAL OPPORTUNITY
SPECIALIST WITH THE OFFICE OF ECONOMIC OPPORTUNITY (OEO), APPLIED FOR
THE VACANT POSITION OF DEPUTY ASSOCIATE DIRECTOR FOR HUMAN RIGHTS IN
OEO. MR. JONES WAS DETERMINED TO BE ELIGIBLE FOR THE POSITION,
EVALUATED AS ONE OF THE FIVE BEST CANDIDATES, AND CERTIFIED FOR
CONSIDERATION. SUBSEQUENTLY, ANOTHER EMPLOYEE WAS SELECTED FOR THE
POSITION AND THE UNION FILED A GRIEVANCE ON MR. JONES' BEHALF, ALLEGING,
AMONG OTHER THINGS, THAT THE SELECTED EMPLOYEE HAD BEEN PRESELECTED IN
VIOLATION OF THE MERIT PROMOTION PLAN CONTAINED IN THE COLLECTIVE
BARGAINING AGREEMENT BETWEEN THE PARTIES. THE GRIEVANCE WAS ULTIMATELY
SUBMITTED TO ARBITRATION UNDER THE AGREEMENT.
THE ISSUES BEFORE THE ARBITRATOR, AS INDICATED IN HIS DECISION, WERE:
1. WAS THERE PRESELECTION AND CONVERSION OF A SCHEDULE C
NONBARGAINING UNIT EMPLOYEE FOR
THE DEPUTY ASSOCIATE DIRECTOR VACANCY IN THE OFFICE OF HUMAN RIGHTS
IN VIOLATION OF ARTICLE
12, SECTIONS 1 AND 3?
2. WAS MR. JONES DENIED CAREER OPPORTUNITIES, CAREER DEVELOPMENT
OPPORTUNITIES AND/OR
APPROPRIATE SUPERVISION WHEN A SERIES OF ACTING ASSOCIATE DIRECTORS
WERE APPOINTED TO THE
OFFICE OF HUMAN RIGHTS IN VIOLATION OF THE CONTRACT; AND
SPECIFICALLY IN VIOLATION OF ARTICLES
10, SECTIONS 1, 3, AND 4; ARTICLE 12, SECTIONS 1, 2, 3, AND 5; AND
ARTICLE 2, SECTION 14?
THE ARBITRATOR DETERMINED, CONCERNING THE ISSUE OF PRESELECTION, /1/
THAT A SCHEDULE C NONBARGAINING UNIT EMPLOYEE HAD BEEN PRESELECTED AND
CONVERTED TO THE POSITION OF DEPUTY ASSOCIATE DIRECTOR FOR HUMAN RIGHTS
IN VIOLATION OF ARTICLE 12, SECTION 1 OF THE AGREEMENT. /2/ HOWEVER,
THE ARBITRATOR NOTED THAT THE POSITION IN QUESTION HAD BEEN ABOLISHED BY
THE AGENCY AND HE CONCLUDED THAT HE WAS INHIBITED IN THE SELECTION OF A
REMEDY, STATING THAT HE WAS PRECLUDED BY A DECISION OF THE ASSISTANT
SECRETARY /3/ FROM DIRECTING THE AGENCY TO REESTABLISH THE POSITION THAT
HAD BEEN ABOLISHED. THEREFORE, HE DIRECTED THE AGENCY TO:
1. REVIEW THE ABOLITION OF THE POSITION OF DEPUTY ASSOCIATE DIRECTOR
FOR HUMAN RIGHTS,
USING STANDARD AGENCY PROCEDURE AND CRITERIA, AND MAKE A NEW
DETERMINATION AS TO WHETHER THE
JOB SHOULD REMAIN ABOLISHED OR BE REESTABLISHED.
2. SELECT THE GRIEVANT, O. MARION JONES TO FILL THE VACANCY WITHOUT
REGARD TO THE
PROVISIONS OF ARTICLE 12, SHOULD THE POSITION BE REESTABLISHED. /4/
3. GIVE PRIORITY CONSIDERATION FOR PROMOTION TO O. MARION JONES IN
ACCORDANCE WITH ARTICLE
2, SECTION 4C.(5) OF THE CONTRACT, IF THE POSITION IS NOT
REESTABLISHED.
THE UNION EXCEPTS TO THE REMEDY FASHIONED BY THE ARBITRATOR AND
REQUESTS THE COUNCIL TO MODIFY THE ARBITRATOR'S AWARD TO READ:
OEO WILL SELECT THE GRIEVANT, MR. O. MARION JONES, TO FILL THE
POSITION OF DEPUTY ASSOCIATE
DIRECTOR FOR HUMAN RIGHTS (GS-15).
UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE, REVIEW OF
AN ARBITRATION AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON
THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE
EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES
APPLICABLE LAW, APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS
SIMILAR TO THOSE UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE
SUSTAINED BY COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS."
THE UNION IN ITS EXCEPTION, IN EFFECT, CONTENDS THAT THE ARBITRATOR,
IN FASHIONING A REMEDY IN THIS CASE AND IN EXPLAINING HIS REASONING IN
ARRIVING AT THAT REMEDY IN LIEU OF ANOTHER REMEDY, SHOULD HAVE
CONSIDERED NOT ONLY SECTION 12(B) OF THE ORDER BUT THE ENTIRETY OF THE
ORDER AND MORE SPECIFICALLY SECTIONS 12(B) AND 19 IN THEIR RELATIONSHIP
TO EACH OTHER. IN SUPPORT OF ITS EXCEPTION, THE UNION ARGUES THAT WHAT
CLEARLY EMERGES FROM MANAGEMENT TESTIMONY AT THE ARBITRATION HEARING IS
THAT THE DECISION TO ABOLISH THE POSITION IN QUESTION WAS DIRECTLY
RELATED TO THE GRIEVANCE AND WAS, THEREFORE, DISCRIMINATORY AND
RETALIATORY WITHIN THE MEANING OF SECTION 19 OF THE ORDER. /5/
SPECIFICALLY, THE UNION STATES:
TO ASCERTAIN WHETHER MANAGEMENT'S INTENT WAS DISCRIMINATORY OR
RETALIATORY WITHIN THE
MEANING OF SECTION 19, A REASONABLE MAN HAS ONLY TO CONSIDER THE
EFFECT OF MANAGEMENT'S
DECISION.
1. IN VIOLATION OF EXECUTIVE ORDER 11491, SECTION 19(A)(1) IT
INTERFERED WITH
MR. JONES' RIGHTS UNDER SECTION 13(B) OF THE ORDER. THE ARBITRATOR,
AS HIS ORDER STATES WOULD
AWARD THE PROMOTION TO JONES, IF THE JOB WERE NOT ABOLISHED.
2. BY ABOLISHING THE POSITION AND THUS DENYING THE PROMOTION TO
JONES, AND BY WRITING
JONES AND FALSELY ASSERTING THAT THE POSITION WAS ABOLISHED AT THE
REQUEST OF THE UNION
(I.E. "THE UNION SOLD YOU OUT") MANAGEMENT DISCOURAGED JONES'
MEMBERSHIP IN THE UNION, IN
VIOLATION OF SECTION 19(A)(2) OF THE EXECUTIVE ORDER.
3. FINALLY, THE COMBINATION OF A PRE-SELECTION, OR MORE CANDIDLY THE
RIGGING OF A MERIT
COMPETITION BY MANAGEMENT, AND THE SNATCHING AWAY OF A MEANINGFUL
REMEDY EIGHT YEARS AFTER THE
POSITION WAS ESTABLISHED, THREE MONTHS AFTER IT WAS LAST ADVERTISED,
AND A WEEK BEFORE THE
ARBITRATION HEARING ON THE PENDING GRIEVANCE, CONSTITUTE A
DISCRIMINATORY ACT DIRECTED AGAINST
MR. JONES AND THE UNION IN RETALIATION FOR FILING THE GRIEVANCE, IN
VIOLATION OF EXECUTIVE
ORDER SECTION 19(A)(4). UNFORTUNATELY, THE ARBITRATOR DID NOT GIVE
CONSIDERATION TO THESE
SECTIONS OF THE ORDER, WHICH MUST BE WEIGHED ALONG WITH SECTION
12(B).
IN SUBSTANCE, THE UNION IS CONTENDING THAT THE ARBITRATOR'S AWARD
SHOULD BE SET ASIDE ON THE GROUND THAT, IN FASHIONING THE REMEDY IN THIS
CASE AND IN EXPLAINING HIS REASONING IN ARRIVING AT THAT REMEDY, HE
FAILED TO CONSIDER WHETHER THE AGENCY HAD VIOLATED SECTION 19(A) OF THE
ORDER, I.E., WHETHER THE AGENCY HAD COMMITTED AN UNFAIR LABOR PRACTICE,
BY ABOLISHING THE POSITION IN QUESTION. A CONTENTION THAT AN ARBITRATOR
HAS FAILED TO CONSIDER AND DECIDE, IN THE COURSE OF FASHIONING A REMEDY
IN A GRIEVANCE ARBITRATION, WHETHER AN UNFAIR LABOR PRACTICE HAS BEEN
COMMITTED UNDER SECTION 19 OF THE ORDER DOES NOT STATE A GROUND UPON
WHICH THE COUNCIL WILL ACCEPT A PETITION FOR REVIEW OF AN ARBITRATION
AWARD. /6/ THE UNION DOES NOT ASSERT THAT THE REMEDY VIOLATES THE ORDER
BUT, IN EFFECT, IS CHALLENGING THE ARBITRATOR'S REASONING IN ARRIVING AT
THE REMEDY. AS THE COUNCIL STATED IN AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 12 AND U.S. DEPARTMENT OF LABOR (DALY, ARBITRATOR),
FLRC NO. 72A-55 (SEPTEMBER 17, 1973), REPORT NO. 44 AT P. 3:
YOUR FINAL CONTENTION . . . IS BASED ON THE ASSERTED CONFUSION IN THE
ARBITRATOR'S
RATIONALE IN HIS OPINION. HOWEVER, AS THE COURTS HAVE INDICATED, IT
IS THE AWARD RATHER THAN
THE CONCLUSION OR THE SPECIFIC REASONING EMPLOYED THAT A COURT MUST
REVIEW. SEE E.G.,
AMERICAN CAN CO. V. UNITED PAPERWORKERS, AFL-CIO, LOCAL 412, --
F.SUPP.-- , 82 LRRM 3055, 3058
(E.D. PA. 1973).
ACCORDINGLY, THE COUNCIL HAS DENIED REVIEW OF THE UNION'S PETITION
BECAUSE IT FAILS TO MEET THE REQUIREMENTS FOR REVIEW SET FORTH IN
SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE.
BY THE COUNCIL.
CC: H. TOY
OEO
/1/ AS TO THE SECOND ISSUE THE ARBITRATOR DETERMINED THAT THE
GRIEVANT WAS DENIED CAREER DEVELOPMENT OPPORTUNITIES AND APPROPRIATE
SUPERVISION IN VIOLATION OF ARTICLE 10 AND ARTICLE 2, SECTION 14 OF THE
AGREEMENT AND DIRECTED THE AGENCY TO ISSUE NECESSARY INSTRUCTIONS TO
APPROPRIATE OFFICIALS TO COMPLY WITH THE REQUIREMENTS OF THOSE
PROVISIONS OF THE AGREEMENT. NEITHER PARTY TAKES EXCEPTION TO THAT
PORTION OF THE AWARD.
/2/ SECTION 1 OF ARTICLE 12 (MERIT PROMOTION) PROVIDES IN PERTINENT
PART AS FOLLOWS:
THE OBJECTIVE OF THIS ARTICLE IS TO ASSURE THAT OEO IS STAFFED BY THE
BEST-QUALIFIED
CANDIDATES AVAILABLE AND TO ASSURE THAT EMPLOYEES HAVE AN OPPORTUNITY
TO DEVELOP AND ADVANCE
TO THEIR FULL POTENTIAL ACCORDING TO THEIR CAPABILITIES. TO THIS END
THIS ARTICLE IS
DESIGNED: F. TO AVOID FAVORITISM AND PRE-SELECTION OR THE
APPEARANCE OF THEM; AND G. TO
ENSURE THAT VIOLATIONS OF THIS ARTICLE DO NOT OCCUR EITHER BY ERROR
OR DESIGN.
/3/ ASSISTANT SECRETARY CASE NOS. 22-5178 (AP) AND 22-5189 (AP). THE
ASSISTANT SECRETARY FOUND THAT THE GRAVAMEN OF THE GRIEVANCES THERE
INVOLVED THE AGENCY'S FAILURE TO POST AND FILL CERTAIN VACANCIES. HE
FURTHER FOUND THAT THE FILLING OF VACANCIES IS A RIGHT CLEARLY RESERVED
TO MANAGEMENT UNDER SECTION 12(B) OF THE ORDER AND THAT SUCH RIGHT IS
NOT SUBJECT TO WAIVER THROUGH THE NEGOTIATION PROCESS. ACCORDINGLY, HE
CONCLUDED THAT THOSE GRIEVANCES, WHICH SOUGHT TO REQUIRE THE AGENCY TO
FILL CERTAIN VACANCIES, WERE OUTSIDE THE SCOPE OF THE CONTRACTUAL
ARBITRATION PROCEDURE, CITING SEVERAL COUNCIL DECISIONS IN SUPPORT OF
THIS CONCLUSION. SUBSEQUENTLY, THE COUNCIL DENIED THE UNION'S PETITION
FOR REVIEW OF THE ASSISTANT SECRETARY'S DECISION. LOCAL 2677, NATIONAL
COUNCIL OF OEO LOCALS, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO AND OFFICE OF ECONOMIC OPPORTUNITY, ASSISTANT SECRETARY CASE
NOS. 22-5178 (AP), 22-5189 (AP), FLRC NO. 74A-50 (JANUARY 15, 1975),
REPORT NO. 62.
/4/ NEITHER THE AGENCY NOR THE UNION ADDRESSED THE QUESTION OF
WHETHER THIS PART OF THE ARBITRATOR'S AWARD MIGHT CONFLICT WITH RETAINED
MANAGEMENT RIGHTS UNDER SECTION 12(B)(2) OF THE ORDER. THE COUNCIL DOES
NOT PASS ON THE QUESTION.
/5/ THE UNION ALSO ASSERTS THAT A MAJOR POLICY QUESTION IS PRESENTED
FOR COUNCIL REVIEW SINCE IF THE ACTION OF OEO IN ABOLISHING THE POSITION
IS SHIELDED BY SECTION 12(B) OF THE ORDER, THEN EVERY AGENCY MANAGEMENT
HAS A WEAPON OF ENORMOUS SIGNIFICANCE IN DISCOURAGING GRIEVANCES BECAUSE
MANAGEMENT CAN WITHHOLD A MEANINGFUL REMEDY. HOWEVER, THE ASSERTION
THAT THE AWARD PRESENTS A MAJOR POLICY ISSUE IS NOT A GROUND UPON WHICH
THE COUNCIL WILL GRANT A PETITION FOR REVIEW OF AN ARBITRATION AWARD.
(SEE SECTION 2411.32 OF THE COUNCIL'S RULES.)
/6/ SECTION 6(A)(4) OF THE ORDER PROVIDES:
THE ASSISTANT SECRETARY SHALL DECIDE UNFAIR LABOR PRACTICE COMPLAINTS
. . .
SECTION 19(D) OF THE ORDER PROVIDES, IN PART:
ALL COMPLAINTS UNDER THIS SECTION (SEC. 19. UNFAIR LABOR PRACTICES)
THAT CANNOT BE RESOLVED BY
THE PARTIES SHALL BE FILED WITH THE ASSISTANT SECRETARY.
3 FLRC 405; FLRC NO. 74A-75; JUNE 26, 1975.
MR. CLYDE M. WEBBER
NATIONAL PRESIDENT
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
1325 MASSACHUSETTS AVENUE, NW.
WASHINGTON, D.C. 20005
(SYNOPSIS) FLRC NO. 74A-75
THE SUPERVISOR, NEW ORLEANS, LOUISIANA COMMODITY INSPECTION AND GRAIN
INSPECTION BRANCHES, GRAIN DIVISION, UNITED STATES DEPARTMENT OF
AGRICULTURE AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 3157 (MOORE, ARBITRATOR). THE ARBITRATOR DETERMINED THAT THE
AGENCY DID NOT VIOLATE THE PARTIES' AGREEMENT AND THEREFORE DENIED THE
UNION'S GRIEVANCE. THE UNION FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD
WITH THE COUNCIL, ALLEGING THAT (1) THE ARBITRATOR FAILED TO DETERMINE
ALL OF THE ISSUES SUBMITTED TO ARBITRATION; AND (2) THE ARBITRATOR, IN
EFFECT, REACHED AN INCORRECT RESULT IN HIS RESOLUTION OF THE GRIEVANCE
INVOLVED.
COUNCIL ACTION (JUNE 26, 1975). AS TO (1), THE COUNCIL CONCLUDED
THAT THE UNION'S PETITION DOES NOT PRESENT THE FACTS AND CIRCUMSTANCES
NECESSARY TO SUPPORT ITS CONTENTION. AS TO (2), THE COUNCIL DECIDED
THAT THE UNION'S SECOND EXCEPTION DOES NOT STATE A GROUND UPON WHICH THE
COUNCIL WILL GRANT A PETITION FOR REVIEW OF AN ARBITRATION AWARD.
ACCORDINGLY, THE COUNCIL DENIED REVIEW OF THE UNION'S PETITION BECAUSE
IT FAILED TO MEET THE REQUIREMENTS FOR REVIEW AS SET FORTH IN SECTION
2411.32 OF THE COUNCIL'S RULES OF PROCEDURE (5 CFR 2411.32).
DEAR MR. WEBBER:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF AN
ARBITRATOR'S AWARD, AND THE AGENCY'S OPPOSITION THERETO, FILED IN THE
ABOVE-ENTITLED CASE.
ACCORDING TO THE AWARD, THE AGENCY PROPOSED THE ISSUANCE OF AN
INSTRUCTION (GR INSTRUCTION 306-1 TITLED "FIRST-EIGHT-HOUR INDEFINITE
TOUR OF DUTY") ESTABLISHING ON A NATIONWIDE BASIS A NEW TOUR OF DUTY FOR
FIELD OFFICES, INCLUDING THE NEW ORLEANS FIELD OFFICE WHERE THE
EMPLOYEES ARE COVERED BY A COLLECTIVE BARGAINING AGREEMENT WITH THE
UNION. IN RESPONSE TO THE AGENCY'S REQUEST FOR THE UNION'S COMMENTS AND
RECOMMENDATIONS ON THE PROPOSED INSTRUCTION, THE UNION VOICED ITS
OPPOSITION. ABOUT 3 MONTHS LATER, THE AGENCY TRANSMITTED THE
INSTRUCTION TO FIELD OFFICE SUPERVISORS AND REGIONAL DIRECTORS. THE NEW
INDEFINITE TOUR OF DUTY THEREAFTER BECAME EFFECTIVE, AND, FURTHER, THE
AGENCY THEREAFTER REFUSED TO PAY OVERTIME FOR ANY HOURS WORKED LESS THAN
8 IN A DAY OR 40 IN A WEEK. AS A RESULT OF THE NEW INDEFINITE TOUR OF
DUTY, THE WORKING SCHEDULE OF SOME EMPLOYEES AT THE NEW ORLEANS FIELD
OFFICE WAS CHANGED FROM A REGULAR TO AN IRREGULAR STARTING TIME.
MOREOVER, SOME EMPLOYEES EARNED LESS OVERTIME. THE UNION FILED A
GRIEVANCE WHICH WAS SUBMITTED TO ARBITRATION.
THERE IS NO INDICATION IN THE RECORD BEFORE THE COUNCIL THAT THE
PARTIES ENTERED INTO AN AGREEMENT AS TO THE QUESTION OR QUESTIONS TO BE
DECIDED BY THE ARBITRATOR. THE ARBITRATOR IN HIS DECISION FORMULATED
THE QUESTION AT ISSUE AS FOLLOWS:
DID THE EMPLOYER VIOLATE SECTION 13.2 OR 13.3 OF THE AGREEMENT /1/
WHEN IT IMPLEMENTED THE
"FIRST 8-HOUR INDEFINITE TOUR OF DUTY AND RELATED WORK RULES?" IF SO,
WHAT IS THE PROPER
REMEDY?
THE ARBITRATOR DETERMINED THAT THE AGENCY DID NOT VIOLATE SECTION
13.2 OR 13.3 OF THE AGREEMENT WHEN IT IMPLEMENTED THE "FIRST 8-HOUR
INDEFINITE TOUR OF DUTY AND RELATED WORK RULES" AND THEREFORE DENIED THE
GRIEVANCE. THE ARBITRATOR NOTED THAT HE DID "NOT PASS JUDGMENT ON
WHETHER THE MATTER OF A TOUR OF DUTY IS NEGOTIABLE BETWEEN THE PARTIES,
ONLY THAT THE TERMS OF THE CURRENT AGREEMENT DO NOT PRECLUDE THE
PROMULGATION OF A NEW TOUR OF DUTY FROM A HIGHER MANAGEMENT LEVEL AS WAS
THE CASE HERE."
THE UNION REQUESTS THAT THE COUNCIL ACCEPT THE PETITION FOR REVIEW OF
THE ARBITRATOR'S AWARD ON THE BASIS OF TWO EXCEPTIONS DISCUSSED BELOW.
UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE, REVIEW OF
AN ARBITRATION AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON
THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE
EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES
APPLICABLE LAW, APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS
SIMILAR TO THOSE UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE
SUSTAINED BY COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS."
IN ITS FIRST EXCEPTION, THE UNION CONTENDS THAT THE ARBITRATOR DID
NOT DECIDE A "THRESHOLD QUESTION OF NEGOTIABILITY" AND THEREBY FAILED TO
DETERMINE ALL THE ISSUES SUBMITTED TO ARBITRATION. THE COUNCIL WILL
GRANT A PETITION FOR REVIEW OF AN ARBITRATION AWARD WHERE IT APPEARS,
BASED UPON THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT
THE ARBITRATOR DID NOT DECIDE THE QUESTION SUBMITTED TO ARBITRATION AND
DETERMINED ISSUES NOT INCLUDED IN THE QUESTION, THEREBY EXCEEDING HIS
AUTHORITY. LONG BEACH NAVAL SHIPYARD AND FEDERAL EMPLOYEES METAL TRADES
COUNCIL (STEESE, ARBITRATOR), FLRC NO. 74A-40 (JANUARY 15, 1975), REPORT
NO. 62.
SINCE THERE IS NO QUESTION THAT THE ARBITRATOR ANSWERED THE SPECIFIC
ISSUE IN THE QUESTION FORMULATED BY THE ARBITRATOR /2/ IN THE PRESENT
CASE BEFORE US, WE CONCLUDE THAT THE UNION'S PETITION DOES NOT PRESENT
THE FACTS AND CIRCUMSTANCES NECESSARY TO SUPPORT ITS CONTENTION THAT THE
ARBITRATOR FAILED TO DETERMINE ALL THE ISSUES SUBMITTED TO ARBITRATION.
THE UNION'S SECOND EXCEPTION CONTENDS THAT THE AWARD "IGNORES PAST
PRACTICE OF REGULAR HOURS OF WORK, IS IN DEROGATION OF THEIR FUNDAMENTAL
BARGAINING RIGHTS AND TOTALLY DISREGARDS PREVIOUS FLRC DECISIONS." IN
SUPPORT OF THIS EXCEPTION, THE UNION ASSERTS THAT THE AGENCY'S ACTIONS
WHICH GAVE RISE TO THE GRIEVANCE VIOLATED THE BASIC TERMS OF THE
CONTRACT (AN ARGUMENT WHICH THE UNION, ACCORDING TO THE AWARD, MADE TO
THE ARBITRATOR) AND APPLICABLE COUNCIL CASE LAW ON NEGOTIABILITY ISSUES.
THUS, WHEN THE SUBSTANCE OF THIS EXCEPTION IS CONSIDERED, THE UNION IS,
IN EFFECT, CONTENDING THAT THE ARBITRATOR REACHED AN INCORRECT RESULT IN
HIS RESOLUTION OF THE GRIEVANCE. HOWEVER, THE COUNCIL HAS HELD, AS
COURTS CONSISTENTLY HAVE WITH RESPECT TO ARBITRATION IN THE PRIVATE
SECTOR, THAT THE INTERPRETATION OF CONTRACT PROVISIONS AND HENCE
RESOLUTION OF THE GRIEVANCE IS A MATTER TO BE LEFT TO THE ARBITRATOR'S
JUDGMENT. SEE, E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 2649 AND OFFICE OF ECONOMIC OPPORTUNITY (SISK,
ARBITRATOR), FLRC NO. 74A-17 (DECEMBER 5, 1974), REPORT NO. 61.
THEREFORE, WE CONCLUDE THAT THE UNION'S SECOND EXCEPTION DOES NOT, UNDER
THE CIRCUMSTANCES OF THIS CASE, STATE A GROUND UPON WHICH THE COUNCIL
WILL GRANT A PETITION FOR REVIEW OF AN ARBITRATION AWARD.
ACCORDINGLY, THE COUNCIL HAS DENIED REVIEW OF THE UNION'S PETITION
BECAUSE IT FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS SET FORTH IN
SECTION 2411.32 OF ITS RULES OF PROCEDURE.
BY THE COUNCIL.
CC: A. M. SEEGER
USDA
/1/ SECTIONS 13.2 AND 13.3 OF THE AGREEMENT PROVIDE IN RELEVANT PART:
13.2 WEEKDAY OVERTIME: WEEKDAY OVERTIME SHALL BE TIME WORKED OUTSIDE
THE REGULAR TOUR OF DUTY
WHICH IS ORDERED AND APPROVED BETWEEN 0600 HOURS ON MONDAY AND 1900
HOURS ON FRIDAY . . . 13.3
WEEKEND OVERTIME: WEEKEND OVERTIME SHALL BE THAT ORDERED AND
APPROVED BETWEEN 1900 HOURS ON
FRIDAY AND 0600 HOURS ON MONDAY . . .
/2/ AS THE COUNCIL HAS INDICATED, WHERE THE PARTIES DO NOT ENTER INTO
A SUBMISSION AGREEMENT, THE ARBITRATOR'S UNCHALLENGED FORMULATION OF THE
QUESTION MAY BE REGARDED AS THE EQUIVALENT OF A SUBMISSION AGREEMENT.
SMALL BUSINESS ADMINISTRATION AND AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2532 (KLEEB, ARBITRATOR), FLRC NO. 73A-44 (NOVEMBER 6,
1974), REPORT NO. 60.
3 FLRC 396; FLRC NO. 74A-48; JUNE 26, 1975.
AFGE COUNCIL OF LOCALS 1497 AND 2165
AND
REGION 3, GENERAL SERVICES ADMINISTRATION,
BALTIMORE, MARYLAND
(SYNOPSIS) FLRC NO. 74A-48
AFGE COUNCIL OF LOCALS 1497 AND 2165 AND REGION 3, GENERAL SERVICES
ADMINISTRATION, BALTIMORE, MARYLAND. THE DISPUTE INVOLVED THE
NEGOTIABILITY UNDER THE ORDER OF UNION PROPOSALS RELATED TO (1)
JURISDICTIONAL BOUNDARIES BETWEEN CRAFTS; (2) SAFETY PRECAUTIONS IN
PERFORMING WORK; AND (3) ADVANCE NOTICE OF TEMPORARY CHANGES IN DUTY
STATIONS.
COUNCIL ACTION (JUNE 26, 1975). AS TO (1), THE COUNCIL HELD THAT THE
PROPOSAL WAS EXCEPTED FROM THE AGENCY'S OBLIGATION TO BARGAIN UNDER
SECTION 11(B) OF THE ORDER; HOWEVER, SINCE THE AGENCY, THROUGH ITS
LOCAL BARGAINING REPRESENTATIVE, HAD NEGOTIATED AND REACHED AGREEMENT ON
THE PROPOSAL IN DISPUTE AS PERMITTED BY THE ORDER, THE COUNCIL RULED
THAT THE AGENCY CANNOT, AFTER THAT FACT, CHANGE ITS POSITION DURING THE
SECTION 15 REVIEW PROCESS, AND THE AGREED UPON PROPOSAL MUST BE
APPROVED. ACCORDINGLY, THE COUNCIL HELD THAT THE AGENCY'S DETERMINATION
THAT THE PROPOSAL IS NONNEGOTIABLE WAS IMPROPER AND MUST BE SET ASIDE.
AS TO (2) AND (3), THE COUNCIL HELD THAT (2) DID NOT VIOLATE SECTION
12(B) OF THE ORDER OR 5 U.S.C. 7311, AND (3) DID NOT VIOLATE SECTION
12(B) OF THE ORDER, AS CONTENDED BY THE AGENCY; AND THAT THE PROPOSALS
WERE NEGOTIABLE UNDER SECTION 11(A) OF THE ORDER. ACCORDINGLY, THE
COUNCIL SET ASIDE THE AGENCY HEAD'S DETERMINATION OF NONNEGOTIABILITY.
THE AFGE COUNCIL OF LOCALS 1497 AND 2165 (REFERRED TO HEREINAFTER AS
THE UNION) IS THE EXCLUSIVE BARGAINING REPRESENTATIVE FOR A UNIT OF ALL
WAGE EMPLOYEES, EXCEPT CUSTODIAL, OF THE GENERAL SERVICES
ADMINISTRATION, REGION 3, PUBLIC BUILDING SERVICES, BALTIMORE, MARYLAND.
REGION 3 AND THE UNION REACHED AGREEMENT AT THE LOCAL LEVEL ON THE
TERMS OF AN AGREEMENT, SUBJECT TO AGENCY APPROVAL PURSUANT TO SECTION 15
OF THE ORDER. /1/
THE GENERAL SERVICES ADMINISTRATION DISAPPROVED CERTAIN PORTIONS OF
THE AGREEMENT, NAMELY ARTICLE VII (ASSIGNMENTS), SECTION 3; ARTICLE XX
(SAFETY), SECTION 3; AND ARTICLE XXXI (NORMAL DUTY STATION), SECTION 1.
THE AGENCY DETERMINED THAT THESE PROVISIONS VIOLATE THE ORDER AND THAT
ARTICLE XX (SAFETY), SECTION 3 ALSO VIOLATES APPLICABLE LAW AND
THEREFORE WERE NONNEGOTIABLE.
THE UNION APPEALED FROM THIS DETERMINATION TO THE COUNCIL UNDER
SECTION 11(C)(4) OF THE ORDER AND THE AGENCY FILED A STATEMENT OF
POSITION IN SUPPORT OF ITS DETERMINATION.
THE PROVISIONS IN DISPUTE ARE CONSIDERED SEPARATELY BELOW.
1. ARTICLE VII (ASSIGNMENTS), SECTION 3.
THE PROVISION READS AS FOLLOWS:
THE EMPLOYER AGREES THAT JURISDICTIONAL BOUNDARIES BETWEEN AND AMONG
CRAFTS FOR THE PURPOSE
OF ESTABLISHING A CLAIM TO THE WORK IS RECOGNIZED AS AN APPROPRIATE
SUBJECT FOR DISCUSSION
WITH THE CONSIDERATION OF THE VIEWS OF THE UNION.
THE AGENCY CONTENDS THAT TO AGREE THAT JURISDICTIONAL BOUNDARIES
BETWEEN CRAFTS FOR THE PURPOSE OF ESTABLISHING A CLAIM TO THE WORK IS AN
APPROPRIATE SUBJECT FOR DISCUSSION WOULD, IN EFFECT, BE TO AGREE THAT
THE ASSIGNMENT OF DUTIES TO INDIVIDUAL EMPLOYEES AND GROUPS OF EMPLOYEES
IS AN APPROPRIATE SUBJECT FOR DISCUSSION; AND SUCH ASSIGNMENT OF DUTIES
RELATES TO THE AGENCY'S "ORGANIZATION," A MATTER EXCEPTED FROM THE
AGENCY'S OBLIGATION TO NEGOTIATE UNDER SECTION 11(B) OF THE ORDER. THE
AGENCY CITES THE COUNCIL'S DECISIONS IN GRIFFISS /2/ AND CHARLESTON
NAVAL SHIPYARD /3/ TO SUPPORT THIS CONTENTION AND WE FIND MERIT IN IT.
/4/
THE PURPOSE OF THE PROPOSAL, AS EXPRESSLY STATED THEREIN, IS TO
ESTABLISH "A CLAIM TO THE WORK" ON THE BASIS OF "JURISDICTIONAL
BOUNDARIES BETWEEN AND AMONG CRAFTS." THEREFORE, THE PROPOSAL CLEARLY
RELATES TO THE ESTABLISHMENT OF RESTRICTIONS ON THE ALLOCATION OF
SPECIFIC DUTIES TO PARTICULAR POSITIONS OR EMPLOYEES. IN ITS RECENT
DECISION IN THE WRIGHT-PATTERSON AIR FORCE BASE CASE, /5/ THE COUNCIL
CONSIDERED A PROPOSAL WHICH SIMILARLY WOULD HAVE RESTRICTED THE
ASSIGNMENT OF SPECIFIC DUTIES BY THE AGENCY TO PARTICULAR POSITIONS OR
EMPLOYEES. IN THAT CASE, THE UNION PROPOSAL /6/ WOULD HAVE CONDITIONED
THE ASSIGNMENT OF DUTIES BY THE AGENCY ON THE "SCOPE OF THE
CLASSIFICATION ASSIGNED" TO THE RESPECTIVE UNIT EMPLOYEES AS DEFINED IN
"APPROPRIATE CLASSIFICATION STANDARDS." THE COUNCIL FOUND THAT THE
UNION'S PROPOSAL WAS EXCEPTED FROM THE AGENCY'S OBLIGATION TO NEGOTIATE
UNDER SECTION 11(B), BECAUSE IT WOULD LIMIT THE AGENCY IN THE ASSIGNMENT
OF DUTIES TO UNIT EMPLOYEES UNLESS CONDITIONS PRESCRIBED IN THE
AGREEMENT EXIST-- THERE, THE CONFORMITY OF THE DUTIES WITH THE SCOPE OF
THE JOB GRADING STANDARDS. IN SO FINDING, THE COUNCIL RELIED UPON ITS
EARLIER IMMIGRATION AND NATURALIZATION SERVICE DECISION IN WHICH IT
CONSIDERED A PROPOSAL WHICH SIMILARLY WOULD HAVE PREVENTED THE AGENCY
FROM ASSIGNING SPECIFIC DUTIES TO UNIT EMPLOYEES UNLESS CONDITIONS
PRESCRIBED IN THE AGREEMENT EXISTED. /7/
IN THE IMMIGRATION AND NATURALIZATION SERVICE CASE THE COUNCIL
STATED:
AS THE COUNCIL HELD IN THE GRIFFISS CASE, THE SPECIFIC DUTIES
ASSIGNED TO PARTICULAR
POSITIONS OR EMPLOYEES, I.E. THE JOB CONTENT, ARE "EXCLUDED FROM THE
OBLIGATION TO BARGAIN
UNDER THE WORDS 'ORGANIZATION' AND 'NUMBERS, TYPES, AND GRADES OF
POSITIONS OR EMPLOYEES
ASSIGNED TO AN ORGANIZATIONAL UNIT, WORK PROJECT OR TOUR OF DUTY' IN
SECTION 11(B) OF THE
ORDER." SUCH EXCEPTION FROM THE OBLIGATION TO BARGAIN UNDER SECTION
11(B) APPLIES NOT ONLY TO
A PROPOSAL WHICH WOULD TOTALLY PROSCRIBE THE ASSIGNMENT OF SPECIFIC
DUTIES TO PARTICULAR TYPES
OF EMPLOYEES, BUT ALSO TO A PROPOSAL WHICH, AS HERE, WOULD PREVENT
THE AGENCY FROM ASSIGNING
SUCH DUTIES UNLESS CERTAIN CONDITIONS EXIST.
WHILE . . . THE UNION CLAIMS THAT THE CONDITION ATTACHED TO THE
ASSIGNMENT OF ALIEN BUS
DUTIES TO BORDER PATROL AGENTS IS MERELY A "PROCEDURE" WHICH IS
NEGOTIABLE, THE SUBJECT
CONDITION (NAMELY, WHEN DETENTION GUARDS ARE UNAVAILABLE) PLAINLY
IMPOSES LIMITATIONS ON WHICH
TYPES OF POSITIONS OR EMPLOYEES WILL ACTUALLY PERFORM THE DUTIES
INVOLVED. SUCH A LIMITATION
ON THE AGENCY'S RESERVED AUTHORITY TO ASSIGN DUTIES FALLS OUTSIDE THE
AGENCY'S OBLIGATION TO
BARGAIN UNDER SECTION 11(B) . . . (FOOTNOTES OMITTED.)
IN THE PRESENT CASE, THE EXPRESS PURPOSE OF THE UNION PROPOSAL IS TO
ESTABLISH "A CLAIM TO THE WORK" WHICH WOULD BE BASED ON "JURISDICTIONAL
BOUNDARIES BETWEEN AND AMONG CRAFTS." IMPLICIT WITHIN THIS PURPOSE AND
ESSENTIAL TO ITS ATTAINMENT IS RESTRICTION OF AGENCY DISCRETION IN THE
ASSIGNMENT OF DUTIES TO UNIT EMPLOYEES THROUGH THE ESTABLISHMENT OF SUCH
CLAIMS TO THE WORK. THEREFORE, THE PROPOSAL HERE IS CLOSELY AKIN TO THE
PROPOSALS IN WRIGHT-PATTERSON AND IMMIGRATION AND NATURALIZATION SERVICE
IN THAT ITS EXPRESSED PURPOSE IS TO SEEK TO ESTABLISH LIMITATIONS ON
MANAGEMENT'S ASSIGNMENT OF DUTIES. IN OUR OPINION, TO REQUIRE THE
AGENCY TO BARGAIN ON A PROPOSAL, THE PURPOSE OF WHICH IS ULTIMATELY TO
ESTABLISH RESTRICTIONS ON MANAGEMENT'S DISCRETION TO DETERMINE JOB
CONTENT, WOULD BE EFFECTIVELY TO REQUIRE THE AGENCY TO NEGOTIATE ON JOB
CONTENT, ITSELF. ACCORDINGLY, WE FIND THAT THE UNION'S PROPOSAL IS
EXCEPTED FROM THE AGENCY'S OBLIGATION TO BARGAIN UNDER SECTION 11(B) OF
THE ORDER.
THE CASE BEFORE US DIFFERS, HOWEVER, IN AN IMPORTANT RESPECT FROM
OTHER CASES INVOLVING THE ASSIGNMENT OF DUTIES SUCH AS GRIFFISS,
WRIGHT-PATTERSON, IMMIGRATION AND NATURALIZATION SERVICE, AND CHARLESTON
IN WHICH THE COUNCIL SUSTAINED THE AGENCY HEAD DETERMINATION OF
NONNEGOTIABILITY UNDER SECTION 11(B). MOREOVER, THIS DIFFERENCE
REQUIRES US TO FIND THAT, WITH REGARD TO THE INSTANT PROPOSAL, THE
AGENCY DETERMINATION, THAT THE PROPOSAL IS NONNEGOTIABLE, WAS IMPROPER.
HERE, AS DISTINGUISHED FROM THE CIRCUMSTANCES IN THE CITED CASES, THE
LOCAL PARTIES AGREED TO THE PROPOSAL IN DISPUTE AND THE AGENCY
DISAPPROVED THE PROPOSAL ONLY SUBSEQUENTLY, DURING THE REVIEW OF THE
AGREEMENT UNDER SECTION 15 OF THE ORDER. AS PREVIOUSLY NOTED, SECTION
15 PROVIDES, IN PART, "AN AGREEMENT SHALL BE APPROVED . . . IF IT
CONFORMS TO APPLICABLE LAWS, THE ORDER, EXISTING PUBLISHED AGENCY
POLICIES AND REGULATIONS . . . AND REGULATIONS OF OTHER APPROPRIATE
AUTHORITIES." IN THIS CONNECTION, THE COUNCIL EXPRESSLY STATED, IN ITS
GRIFFISS /8/ AND CHARLESTON /9/ DECISIONS, THAT MATTERS WHICH ARE WITHIN
THE AMBIT OF SECTION 11(B), ALTHOUGH EXCEPTED FROM THE OBLIGATION TO
NEGOTIATE, MAY BE NEGOTIATED IF MANAGEMENT CHOOSES TO NEGOTIATE OVER
THEM. IN OTHER WORDS, WHILE THERE IS NO REQUIREMENT THAT MATTERS WITHIN
THE AMBIT OF SECTION 11(B) BE NEGOTIATED, THE ORDER DOES PERMIT THEIR
NEGOTIATION SO THAT AN AGREEMENT WHICH RESULTS FROM THE NEGOTIATION OF
SUCH MATTERS DOES NOT, THEREBY, FAIL TO CONFORM TO THE ORDER.
THEREFORE, SINCE THE AGENCY IN THE INSTANT CASE, THROUGH ITS LOCAL
BARGAINING REPRESENTATIVE, NEGOTIATED AND REACHED AGREEMENT ON THE
PROPOSAL IN DISPUTE AS PERMITTED BY THE ORDER, THE AGENCY CANNOT, AFTER
THAT FACT, CHANGE ITS POSITION DURING THE SECTION 15 REVIEW PROCESS.
SUCH AGREEMENT CONFORMS TO THE ORDER AND UNDER SECTION 15 IT MUST BE
APPROVED.
ACCORDINGLY, WE FIND THE AGENCY'S DETERMINATION-- THAT ARTICLE VII
(ASSIGNMENTS), SECTION 3, WHICH WAS AGREED UPON AT THE LOCAL LEVEL, IS
NONNEGOTIABLE-- WAS IMPROPER AND MUST BE SET ASIDE.
2. ARTICLE XX (SAFETY), SECTION 3.
THE PROVISION READS AS FOLLOWS:
IT IS AGREED THAT NO EMPLOYEE SHALL BE REQUIRED TO PERFORM WORK ON OR
ABOUT MOVING OR
OPERATING MACHINES WITHOUT PROPER PRECAUTION, PROTECTIVE EQUIPMENT
AND SAFETY DEVICES, NOR
SHALL ANY EMPLOYEE BE REQUIRED TO WORK IN AREAS WHERE CONDITIONS ARE
DETRIMENTAL TO HEALTH
WITHOUT PROPER PROTECTIVE EQUIPMENT AND SAFETY DEVICES.
THE AGENCY CONTENDS THAT THE PROVISIONS WOULD ALLOW EMPLOYEES TO
REFUSE TO WORK IF THE EMPLOYEES FEEL THAT UNSAFE WORKING CONDITIONS ARE
PRESENT; AND, THUS, VIOLATES SECTION 12(B)(1), (2), (5), AND (6) OF THE
ORDER. /10/ THE AGENCY FURTHER CONTENDS THAT THE REFUSAL TO WORK (IF IT
OCCURRED) COULD CONSTITUTE A VIOLATION OF 5 U.S.C. 7311. /11/
THE UNION ASSERTS, HOWEVER, THAT THE PROPOSAL'S " . . . SOLE INTENT
IS TO PROTECT AND REDUCE THE CHANCE OF INJURY TO THE EMPLOYEES" AND THAT
THE NEGOTIABILITY OF SUCH A PROPOSAL, RELATING AS IT DOES TO SAFETY, WAS
CLARIFIED BY THE COUNCIL IN ITS BORDER PATROL DECISION. /12/
CONTRARY TO THE AGENCY'S CONTENTIONS, WE DO NOT VIEW THE PROVISION
INVOLVED HERE AS, IN ANY WAY, GRANTING TO THE EMPLOYEES IN THE
BARGAINING UNIT THE RIGHT TO REFUSE TO WORK. THERE IS NOTHING IN THE
PROVISION WHICH WOULD SANCTION ANY ACTION WHICH WOULD CONSTITUTE A
VIOLATION OF 5 U.S.C. 7311. RATHER AS THE COUNCIL FOUND IN ITS BORDER
PATROL DECISION: /13/
. . . THE UNION'S PROPOSAL SPECIFIES ONLY WHAT HEALTH AND SAFETY
STANDARDS SHALL BE
OPERATIVE . . . THIS PROPOSAL DOES NOT SPECIFY IN ANY MANNER HOW
THESE STANDARDS ARE TO BE
ACHIEVED BY THE AGENCY AND, THEREFORE, DOES NOT CONFLICT WITH THE
AGENCY'S RIGHT TO ORDER ITS
EMPLOYEES AND TO DETERMINE THE METHODS AND MEANS BY WHICH ITS
OPERATIONS ARE TO BE CONDUCTED,
AS RESERVED TO MANAGEMENT UNDER SECTION 12(B)(1) AND (5) OF THE
ORDER.
MOREOVER, IN OUR VIEW, THE SAME RATIONALE IS DISPOSITIVE OF THE
AGENCY'S CONTENTION WITH RESPECT TO SECTION 12(B)(2) AND (6) OF THE
ORDER RELATING TO THE ASSIGNMENT OF EMPLOYEES AND TAKING ACTIONS TO
ACCOMPLISH THE MISSION OF THE AGENCY IN EMERGENCIES.
AS TO THE AGENCY'S CONTENTION WITH RESPECT TO THE POSSIBLE VIOLATION
OF 5 U.S.C. 7311, WE HAVE ALREADY INDICATED THAT WE DO NOT VIEW THE
PROPOSAL AS GRANTING EMPLOYEES THE RIGHT TO REFUSE TO WORK, AND WE
REJECT THE AGENCY'S CONTENTION ON THAT BASIS.
ACCORDINGLY, WE FIND THAT THE PROPOSAL DOES NOT VIOLATE SECTION 12(B)
OF THE ORDER. THUS, WE OVERRULE THE AGENCY'S DETERMINATION THAT ARTICLE
XX (SAFETY), SECTION 3, WHICH WAS AGREED UPON AT THE LOCAL LEVEL, IS
NONNEGOTIABLE.
3. ARTICLE XXXI (NORMAL DUTY STATION), SECTION 1.
THE PROVISION READS AS FOLLOWS:
THE EMPLOYER AGREES TO POST TEMPORARY CHANGES IN THE DUTY STATIONS OF
EMPLOYEES AT LEAST 72
HOURS IN ADVANCE. IN THE EVENT THAT THE REQUIRED NOTICE IS NOT
GIVEN, AN EMPLOYEE MAY REPORT
TO HIS NORMAL DUTY STATION. IN SUCH CASES, HE WILL BE TRANSPORTED TO
AND FROM THE TEMPORARY
DUTY STATION BY THE EMPLOYER WITHIN THE NORMAL DAILY TOUR OF DUTY,
FOR A TOTAL NUMBER OF DAYS
CONSISTENT WITH THE NUMBER OF DAYS' NOTICE NOT GIVEN, NOT TO EXCEED
THREE (3) DAYS. (E.G., IF
THE EMPLOYEE IS GIVEN TWO (2) DAYS' NOTICE HE WOULD BE SUPPLIED
TRANSPORTATION FOR ONE (1)
DAY).
THE AGENCY CONTENDS THAT THE PROVISION IS NONNEGOTIABLE UNDER SECTION
12(B)(1), (2), (4), (5) AND (6) OF THE ORDER BECAUSE IT SO CLOSELY
PRESCRIBES THE STEPS MANAGEMENT MUST TAKE IN EXERCISING ITS RIGHTS UNDER
SECTION 12(B) THAT IT INVADES THOSE RIGHTS. IN THE AGENCY'S VIEW, IT
GOES BEYOND THE INDICATION IN PLUM ISLAND /14/ THAT ADVANCE NOTICE IN
CHANGES IN TOURS OF DUTY WOULD BE NEGOTIABLE. HERE THE AGENCY ASSERTS
THE CIRCUMSTANCES ARE DIFFERENT FROM PLUM ISLAND BECAUSE THE INSTANT
PROVISION CONTAINS A SPECIFIC REQUIREMENT FOR 72 HOURS ADVANCE NOTICE;
IT WOULD, IN EFFECT, PENALIZE THE AGENCY FOR FAILURE TO GIVE TIMELY
NOTICE; AND THE AGENCY MIGHT BE PRECLUDED FROM ASSIGNING EMPLOYEES TO A
DIFFERENT DUTY STATION IN A SITUATION WHERE SUCH ASSIGNMENT IS NECESSARY
IN AN EMERGENCY OR TO MAINTAIN OPERATIONAL EFFICIENCY.
HOWEVER, THE UNION ASSERTS THAT THE PROVISION MERELY ESTABLISHES
PROCEDURES MANAGEMENT WILL FOLLOW AFTER MAKING ITS DECISION TO CHANGE
THE DUTY STATION AND IS THEREFORE NEGOTIABLE, CITING VA RESEARCH
HOSPITAL /15/ IN WHICH THE COUNCIL DETERMINED:
SECTION 12(B)(2) DICTATES THAT IN EVERY LABOR AGREEMENT MANAGEMENT
OFFICIALS RETAIN THEIR
EXISTING AUTHORITY TO TAKE CERTAIN PERSONNEL ACTIONS, I.E., TO HIRE,
PROMOTE, ETC. THE
EMPHASIS IS ON THE RESERVATION OF MANAGEMENT AUTHORITY TO DECIDE AND
ACT ON THESE MATTERS, AND
THE CLEAR IMPORT IS THAT NO RIGHT ACCORDED TO UNIONS UNDER THE ORDER
MAY BE PERMITTED TO
INTERFERE WITH THAT AUTHORITY. HOWEVER, THERE IS NO IMPLICATION THAT
SUCH RESERVATION OF
DECISION MAKING AND ACTION AUTHORITY IS INTENDED TO BAR NEGOTIATIONS
OF PROCEDURES, TO THE
EXTENT CONSONANT WITH LAW AND REGULATIONS, WHICH MANAGEMENT WILL
OBSERVE IN REACHING THE
DECISION OR TAKING THE ACTION INVOLVED, PROVIDED THAT SUCH PROCEDURES
DO NOT HAVE THE EFFECT
OF NEGATING THE AUTHORITY RESERVED.
IN OUR OPINION, THE OBLIGATION WHICH THE PROPOSAL WOULD IMPOSE UPON
MANAGEMENT-- TO PROVIDE 72 HOURS OF ADVANCE NOTICE OF CHANGES IN DUTY
STATION OR, IN THE ALTERNATIVE, TO PROVIDE TRANSPORTATION TO SUCH
CHANGED DUTY STATION FROM THE EMPLOYEE'S NORMAL DUTY STATION-- WOULD NOT
PREVENT MANAGEMENT FROM DECIDING AND ACTING WITH RESPECT TO CHANGING
EMPLOYEES' DUTY STATIONS. FURTHERMORE, THERE IS NO SHOWING THAT THE
PROCEDURES WHICH THE PROPOSAL WOULD REQUIRE MANAGEMENT TO FOLLOW IN
EXERCISING ITS RETAINED RIGHTS UNDER SECTION 12(B) OF THE ORDER WOULD
HAVE THE EFFECT OF NEGATING OR INTERFERING WITH SUCH RESERVED AUTHORITY
EITHER BY CAUSING UNREASONABLE DELAY IN REASSIGNING EMPLOYEES UNDER
EMERGENCY OR NONEMERGENCY SITUATIONS, OR BY IMPOSING SIGNIFICANT AND
UNAVOIDABLE COSTS UPON THE AGENCY.
ACCORDINGLY, WE OVERRULE THE AGENCY'S DETERMINATION THAT ARTICLE XXXI
(NORMAL DUTY STATION), SECTION 1, WHICH WAS AGREED UPON AT THE LOCAL
LEVEL, IS NONNEGOTIABLE.
FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2411.27 OF THE
COUNCIL'S RULES AND REGULATIONS, WE FIND THAT THE AGENCY HEAD'S
DETERMINATION AS TO THE NONNEGOTIABILITY OF ARTICLE VII (ASSIGNMENTS),
SECTION 3; ARTICLE XX (SAFETY), SECTION 3; AND ARTICLE XXXI (NORMAL
DUTY STATION), SECTION 1, OF THE AGREEMENT NEGOTIATED AT THE LOCAL
LEVEL, WAS IMPROPER AND MUST BE SET ASIDE. THIS DECISION SHOULD NOT BE
CONSTRUED AS EXPRESSING OR IMPLYING ANY OPINION OF THE COUNCIL AS TO THE
MERITS OF THE PROVISIONS HERE INVOLVED. WE DECIDE ONLY THAT, AS
SUBMITTED BY THE UNION AND BASED ON THE RECORD BEFORE THE COUNCIL, THE
PROVISIONS WERE PROPERLY SUBJECT TO NEGOTIATION BY THE PARTIES CONCERNED
UNDER SECTION 11(A) OF THE ORDER.
BY THE COUNCIL.
ISSUED: JUNE 26, 1975
/1/ SECTION 15 OF THE ORDER PROVIDES, IN RELEVANT PART:
APPROVAL OF AGREEMENTS. AN AGREEMENT WITH A LABOR ORGANIZATION AS
THE EXCLUSIVE
REPRESENTATIVE OF EMPLOYEES IN A UNIT IS SUBJECT TO THE APPROVAL OF
THE HEAD OF THE AGENCY OR
AN OFFICIAL DESIGNATED BY HIM. AN AGREEMENT SHALL BE APPROVED WITHIN
FORTY-FIVE DAYS FROM THE
DATE OF ITS EXECUTION IF IT CONFORMS TO APPLICABLE LAWS, THE ORDER,
EXISTING PUBLISHED AGENCY
POLICIES AND REGULATIONS (UNLESS THE AGENCY HAS GRANTED AN EXCEPTION
TO A POLICY OR
REGULATION) AND REGULATIONS OF OTHER APPROPRIATE AUTHORITIES . . .
THE QUOTED LANGUAGE OF SECTION 15 APPEARS AS SET FORTH IN E.O. 11491
AS AMENDED BY E.O. 11616 AND E.O. 11838. WHILE THE LOCAL AGREEMENT
CONTAINING THE SUBJECT PROVISION WAS REVIEWED BY THE AGENCY UNDER
SECTION 15 OF THE ORDER PRIOR TO ITS RECENT AMENDMENT BY E.O. 11838,
THE ORDER WAS NOT CHANGED IN RESPECTS WHICH ARE MATERIAL IN THE PRESENT
CASE.
/2/ INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL F-111, AND
GRIFFISS AIR FORCE BASE, ROME, NEW YORK, FLRC NO. 71A-30 (APRIL 19,
1973), REPORT NO. 36. IN THAT CASE, THE UNION'S PROPOSALS WOULD HAVE
PROHIBITED THE ASSIGNMENT OF ALLEGEDLY UNRELATED DUTIES TO POSITIONS IN
THE UNIT. THE COUNCIL SUSTAINED THE AGENCY'S DETERMINATION OF
NONNEGOTIABILITY, BECAUSE THE SPECIFIC DUTIES ASSIGNED TO PARTICULAR
JOBS, INCLUDING DUTIES ALLEGEDLY UNRELATED TO THE PRINCIPAL FUNCTIONS OF
THE EMPLOYEES CONCERNED, I.E. JOB CONTENT, ARE EXCEPTED FROM THE
AGENCY'S OBLIGATION TO BARGAIN UNDER SECTION 11(B).
/3/ FEDERAL EMPLOYEES METAL TRADES COUNCIL OF CHARLESTON AND
CHARLESTON NAVAL SHIPYARD, CHARLESTON, SOUTH CAROLINA, FLRC NO. 72A-46
(DECEMBER 27, 1973), REPORT NO. 47. IN THAT CASE, THE UNION'S PROPOSAL
WOULD HAVE LIMITED THE AGENCY'S DISCRETION IN ASSIGNING JOURNEYMAN LEVEL
WORK TO APPRENTICES. THE COUNCIL, RELYING ON THE PRINCIPLES ENUNCIATED
IN GRIFFISS, SUSTAINED THE AGENCY'S DETERMINATION OF NONNEGOTIABILITY
UNDER SECTION 11(B) BECAUSE THE PROPOSAL DEALT WITH THE JOB CONTENT OF
APPRENTICES.
/4/ THE AGENCY ALSO CONTENDS THAT THE PROPOSAL VIOLATES SECTIONS
12(B)(1) AND 12(B)(5) OF THE ORDER. IN OUR VIEW, AS SET FORTH
HEREINAFTER, THE PROPOSAL AT ISSUE IS PRINCIPALLY CONCERNED WITH JOB
CONTENT AND SECTION 12(B) IS INAPPLICABLE.
/5/ LOCAL LODGE 2333, INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS AND WRIGHT-PATTERSON AIR FORCE BASE, OHIO, FLRC NO.
74A-2 (DECEMBER 5, 1974), REPORT NO. 60.
/6/ THE DISPUTED SECTIONS CONCERNING WORK ASSIGNMENTS IN THE
WRIGHT-PATTERSON CASE PROVIDED AS FOLLOWS:
SECTION 7. IN THE INTERESTS OF MAINTAINING MORALE IN A GOOD
EMPLOYER-EMPLOYEE RELATIONSHIP,
THE EMPLOYER AGREES THAT, TO THE FULLEST EXTENT POSSIBLE IN
MAINTAINING THE EFFICIENCY OF THE
GOVERNMENT OPERATIONS, EVERY EFFORT WILL BE MADE TO ASSIGN WORK
WITHIN THE SCOPE OF THE
CLASSIFICATION ASSIGNED AS DEFINED BY APPROPRIATE CLASSIFICATION
STANDARDS. SECTION 10. THE
EMPLOYER AGREES THAT TO THE MAXIMUM EXTENT POSSIBLE, EFFORTS WILL BE
MADE TO ASSIGN WORK
WITHIN THE SCOPE OF THE CLASSIFICATION ASSIGNED TO BARGAINING UNIT
EMPLOYEES, AS DEFINED IN
APPROPRIATE CLASSIFICATION STANDARDS . . .
/7/ AFGE (NATIONAL BORDER PATROL COUNCIL AND NATIONAL COUNCIL OF
IMMIGRATION AND NATURALIZATION SERVICE LOCALS) AND IMMIGRATION AND
NATURALIZATION SERVICE, FLRC NO. 73A-25 (SEPTEMBER 30, 1974), REPORT
NO. 57. THE PROPOSAL IN THAT CASE READ AS FOLLOWS:
THE AGENCY AGREES TO CONTINUE ITS CURRENT POLICY OF NOT USING BORDER
PATROL AGENTS ON ALIEN
BUS MOVEMENTS WHEN DETENTION GUARDS ARE READILY AVAILABLE.
/8/ SUPRA NOTE 2.
/9/ SUPRA NOTE 3.
/10/ SECTION 12(B) READS AS FOLLOWS:
(B) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN
ACCORDANCE WITH APPLICABLE LAWS
AND REGULATIONS--
(1) TO DIRECT EMPLOYEES OF THE AGENCY:
(2) TO HIRE, PROMOTE, TRANSFER, ASSIGN, AND RETAIN EMPLOYEES IN
POSITIONS WITHIN THE
AGENCY, AND TO SUSPEND, DEMOTE, DISCHARGE, OR TAKE OTHER DISCIPLINARY
ACTION AGAINST
EMPLOYEES;
(3) TO RELIEVE EMPLOYEES FROM DUTIES BECAUSE OF LACK OF WORK OR FOR
OTHER LEGITIMATE
REASONS;
(4) TO MAINTAIN THE EFFICIENCY OF THE GOVERNMENT OPERATIONS ENTRUSTED
TO THEM;
(5) TO DETERMINE THE METHODS, MEANS, AND PERSONNEL BY WHICH SUCH
OPERATIONS ARE TO BE
CONDUCTED; AND
(6) TO TAKE WHATEVER ACTIONS MAY BE NECESSARY TO CARRY OUT THE
MISSION OF THE AGENCY IN
SITUATIONS OF EMERGENCY . . .
/11/ 5 U.S.C. 7311 PROVIDES, IN PERTINENT PART:
AN INDIVIDUAL MAY NOT ACCEPT OR HOLD A POSITION IN THE GOVERNMENT OF
THE UNITED STATES OR THE
GOVERNMENT OF THE DISTRICT OF COLUMBIA IF HE-- (3) PARTICIPATES IN A
STRIKE, OR ASSERTS THE
RIGHT TO STRIKE, AGAINST THE GOVERNMENT OF THE UNITED STATES OR THE
GOVERNMENT OF THE DISTRICT
OF COLUMBIA . . .
/12/ AFGE LOCAL 2595 AND IMMIGRATION AND NATURALIZATION SERVICE, U.S.
BORDER PATROL, YUMA SECTOR, FLRC NO. 70A-10 (APRIL 15, 1971), REPORT NO.
6.
/13/ ID. AT P. 3 OF DECISION.
/14/ AFGE LOCAL 1940 AND PLUM ISLAND ANIMAL DISEASE LABORATORY,
DEPARTMENT OF AGRICULTURE, GREENPORT, N.Y., FLRC NO. 71A-11 (JULY 9,
1971), REPORT NO. 11, AT P. 4 OF DECISION.
/15/ VETERANS ADMINISTRATION INDEPENDENT SERVICE EMPLOYEES UNION AND
VETERANS ADMINISTRATION RESEARCH HOSPITAL, CHICAGO, ILLINOIS, FLRC NO.
71A-31 (NOVEMBER 22, 1972), REPORT NO. 31, AT P. 3 OF DECISION.
3 FLRC 380; FLRC NO. 74A-13; JUNE 26, 1975.
IMMIGRATION AND
NATURALIZATION SERVICE
AND
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
(SYNOPSIS) FLRC NO. 74A-13
IMMIGRATION AND NATURALIZATION SERVICE AND AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES. THE DISPUTE INVOLVED THE NEGOTIABILITY UNDER THE
ORDER OF UNION PROPOSALS CONCERNING (1) THE ROTATION OF IMMIGRATION
OFFICERS TO VEHICULAR INSPECTION ON A FAIR AND EQUITABLE BASIS; (2) THE
ROTATION OF EMPLOYEES THROUGH WORK AVAILABLE WITHIN JOB TITLE; (3) THE
ROTATION OF EMPLOYEES THROUGH DETAILS AWAY FROM DUTY STATIONS; (4) THE
STARTING OF THE OFFICIAL DAY WHEN EMPLOYEE REPORTS DEPARTURE FROM HOME;
(5) THE WORKING HOURS IN EACH DAY OF BASIC WORKWEEK TO BE THE SAME; (6)
AND (7) APPROPRIATE COMMUNICATION EQUIPMENT; (8) THE ASSIGNMENT OF
IMMIGRATION OFFICERS IN PAIRS; AND (9) THE APPROPRIATE NUMBER OF AGENTS
AND VEHICLES TO BE ASSIGNED TO CHECKPOINTS.
COUNCIL ACTION (JUNE 26, 1975). WITH REGARD TO PROPOSALS (1), (2)
AND (5), THE COUNCIL HELD THAT THE PROPOSALS ARE NEGOTIABLE UNDER
SECTION 11(A) OF THE ORDER AND THAT THE AGENCY HEAD'S CONTRARY
DETERMINATION MUST BE SET ASIDE. AS TO PROPOSALS (3), (6), (7), (8) AND
(9), THE COUNCIL HELD THAT THE PROPOSALS WERE EXCLUDED BY SECTION 11(B)
FROM THE AGENCY'S OBLIGATION TO BARGAIN, AND THAT THE AGENCY HEAD'S
DETERMINATION OF NONNEGOTIABILITY MUST THEREFORE BE SUSTAINED. FINALLY,
AS TO PROPOSAL (4), THE COUNCIL HELD THAT THE UNION'S APPEAL FAILED TO
MEET THE CONDITIONS FOR REVIEW PRESCRIBED IN SECTION 11(C)(4) OF THE
ORDER AND MUST BE DENIED.
DURING NATIONAL NEGOTIATIONS OF A MULTIUNIT AGREEMENT BETWEEN THE
IMMIGRATION AND NATURALIZATION SERVICE (INS) AND THE AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES (AFGE), DISPUTES AROSE AS TO THE NEGOTIABILITY
OF NINE UNION PROPOSALS (SET FORTH HEREINAFTER). UPON REFERRAL THE
DEPARTMENT OF JUSTICE (HEREINAFTER THE "AGENCY") DETERMINED THAT THE
PROPOSALS WERE NONNEGOTIABLE PRINCIPALLY UNDER SECTIONS 11(B) AND 12(B)
OF THE ORDER THE PUBLISHED AGENCY REGULATIONS. THE UNION PETITIONED THE
COUNCIL FOR REVIEW UNDER SECTION 11(C)(4) OF THE ORDER, /1/ AND THE
AGENCY SUBMITTED A STATEMENT OF ITS POSITION.
THE PROPOSALS WILL BE DISCUSSED SEPARATELY BELOW.
1. ROTATION TO VEHICULAR INSPECTION ON A FAIR AND EQUITABLE BASIS.
THE FIRST CONTESTED PROPOSAL READS AS FOLLOWS:
ARTICLE 18, SECTION A(1):
IMMIGRATION OFFICERS SHALL ROTATE TO VEHICULAR INSPECTION ON A FAIR
AND EQUITABLE
BASIS. IMMIGRATION OFFICERS SHALL NOT BE PROHIBITED FROM USING
INSPECTION BOOTHS AND/OR OTHER
AVAILABLE SHELTER DURING INCLEMENT WEATHER CONDITIONS WHILE NOT
ACTUALLY ENGAGED IN THE
INSPECTION. (ONLY THE UNDERSCORED PORTION IS IN DISPUTE.)
THE AGENCY ASSERTS THAT THE UNDERSCORED LANGUAGE OF THIS PROPOSAL
INTERFERES WITH MANAGEMENT'S RIGHTS TO "ASSIGN AND DIRECT EMPLOYEES IN
THE PERFORMANCE OF THEIR DUTIES," AND IS THUS NONNEGOTIABLE BECAUSE SUCH
MATTERS ARE EITHER EXCEPTED FROM MANAGEMENT'S OBLIGATION TO BARGAIN
UNDER SECTION 11(B) OF THE ORDER OR ARE PROHIBITED FROM NEGOTIATION
UNDER SECTIONS 12(B)(1) AND 12(B)(2). THE UNION DISAGREES, ARGUING IN
EFFECT THAT THE PROPOSAL MERELY ESTABLISHES A NEGOTIABLE PROCEDURE
(I.E., "FAIR AND EQUITABLE ROTATION") WHICH MANAGEMENT WILL FOLLOW IN
REQUIRING EMPLOYEES TO PERFORM INSPECTIONS.
WE CONSIDER FIRST THE EFFECT OF SECTION 12(B). THE RELEVANT PORTIONS
OF THAT SECTION PROVIDE AS FOLLOW:
SEC. 12. BASIC PROVISIONS OF AGREEMENTS. EACH AGREEMENT BETWEEN AN
AGENCY AND A LABOR
ORGANIZATION IS SUBJECT TO THE FOLLOWING REQUIREMENTS-- (B)
MANAGEMENT OFFICIALS OF THE AGENCY
RETAIN THE RIGHT, IN ACCORDANCE WITH APPLICABLE LAWS AND
REGULATIONS-- (1) TO DIRECT EMPLOYEES
OF THE AGENCY; (2) TO HIRE, PROMOTE, TRANSFER, ASSIGN, AND RETAIN
EMPLOYEES IN POSITIONS
WITHIN THE AGENCY . . .
SECTION 12(B) ESTABLISHES RIGHTS EXPRESSLY RESERVED TO MANAGEMENT
OFFICIALS UNDER ANY BARGAINING AGREEMENT. HOWEVER, AS THE COUNCIL
STATED IN THE VA RESEARCH HOSPITAL CASE, AND HAS REPEATEDLY EMPHASIZED
IN ITS SUBSEQUENT DECISIONS: /2/
(T)HERE IS NO IMPLICATION THAT SUCH RESERVATION OF DECISION MAKING
AND ACTION AUTHORITY IS
INTENDED TO BAR NEGOTIATIONS OF PROCEDURES, TO THE EXTENT CONSONANT
WITH LAW AND REGULATION,
WHICH MANAGEMENT WILL OBSERVE IN REACHING THE DECISION OR TAKING THE
ACTION INVOLVED, PROVIDED
THAT SUCH PROCEDURES DO NOT HAVE THE EFFECT OF NEGATING THE AUTHORITY
RESERVED.
ALTHOUGH THE VA RESEARCH HOSPITAL DECISION DEALT ONLY WITH THE
INTERPRETATION AND APPLICATION OF SECTION 12(B)(2), THIS REASONING IS
EQUALLY APPLICABLE TO SECTION 12(B)(1). IN TERMS OF THE INSTANT CASE,
THEN, THE QUESTION BEFORE THE COUNCIL IS WHETHER THIS PROPOSAL WOULD (AS
THE AGENCY CONTENDS) VIOLATE SECTIONS 12(B)(1) AND (2), OR WHETHER (AS
THE UNION CONTENDS) THE PROPOSAL WOULD MERELY ESTABLISH A PROCEDURE
WHICH THE AGENCY WOULD FOLLOW IN EXERCISING THE AUTHORITY RESERVED TO IT
BY THOSE SECTIONS.
IN OUR VIEW, THE UNION'S POSITION IS THE CORRECT ONE. THAT IS TO
SAY, BASED UPON THE RECORD IN THIS CASE, THE ESSENCE OF THE UNION'S
PROPOSAL IS TO ENSURE FAIRNESS AND EQUITY IN THE ROTATION OF VEHICULAR
INSPECTION ASSIGNMENTS-- NOT TO OBLIGATE THE AGENCY TO BARGAIN ABOUT
WHETHER IMMIGRATION OFFICERS, INDIVIDUALLY OR COLLECTIVELY, WILL OR WILL
NOT PERFORM VEHICLE INSPECTIONS. THE PROPOSAL MERELY REQUIRES THAT
AMONG THOSE IMMIGRATION OFFICERS WHO MANAGEMENT HAS DETERMINED WILL
PERFORM DUTIES ASSOCIATED WITH VEHICULAR INSPECTION, MANAGEMENT WILL
DISTRIBUTE SPECIFIC ASSIGNMENTS TO SUCH DUTIES ON A FAIR AND EQUITABLE
BASIS. AS THE UNION IN ITS BRIEF POINTS OUT, "(M)ANAGEMENT UNILATERALLY
DETERMINES WHEN INSPECTIONS ARE NECESSARY," AND WILL THEN UNDER THIS
PROPOSAL, "IMPLEMENT THIS PROCEDURE IN THE TERMS OF THE LABOR AGREEMENT
WHICH REQUIRES A FAIR AND EQUITABLE ROTATION." THUS, THE PROPOSAL WOULD
NOT PREVENT AGENCY MANAGEMENT FROM DETERMINING THAT SOME OR ALL
IMMIGRATION OFFICERS WILL NOT PERFORM VEHICULAR INSPECTION DUTIES OR
THAT ONLY IMMIGRATION OFFICERS OF A CERTAIN GRADE LEVEL OR OF A CERTAIN
ORGANIZATIONAL UNIT, FOR EXAMPLE, WILL PERFORM SUCH INSPECTIONS.
WE THEREFORE REGARD THE PROPOSAL, AS WE HAVE INDICATED, TO REQUIRE
ONLY THAT SUCH IMMIGRATION OFFICERS AS THE AGENCY IN ITS DISCRETION
ASSIGNS TO CONDUCT VEHICLE INSPECTIONS SHALL ROTATE THROUGH THOSE
ASSIGNMENTS ON A FAIR AND EQUITABLE BASIS. AND, AS THE AGENCY MAKES NO
SHOWING THAT THE REQUIREMENT FOR FAIR AND EQUITABLE ROTATION OF THESE
ASSIGNMENTS WILL TO ANY DEGREE RESTRICT ITS ABILITY TO ASSIGN AND DIRECT
EMPLOYEES UNDER THE RIGHTS RESERVED TO IT BY SECTION 12(B) OF THE ORDER,
WE MUST FIND THAT THE AGENCY IS NOT RELIEVED UNDER SECTION 12(B) FROM
ITS OBLIGATION TO BARGAIN ON THE UNION'S PROPOSAL.
AS PREVIOUSLY INDICATED, THE AGENCY ALSO ASSERTS THAT THE PROPOSAL,
EVEN IF NOT PROHIBITED BY SECTION 12(B) OF THE ORDER, IS NEVERTHELESS
EXCEPTED FROM THE AGENCY'S DUTY TO NEGOTIATE UNDER SECTION 11(B) BECAUSE
"SECTION 11(B) RESERVES TO MANAGEMENT THE RIGHT TO ASSIGN EMPLOYEES TO
DUTIES WITHOUT AN OBLIGATION TO BARGAIN." /3/
SECTION 11(B) PROVIDES, IN RELEVANT PART, THAT:
(T)HE OBLIGATION TO MEET AND CONFER DOES NOT INCLUDE MATTERS WITH
RESPECT TO . . . THE
NUMBERS, TYPES, AND GRADES OF POSITIONS OR EMPLOYEES ASSIGNED TO AN
ORGANIZATIONAL UNIT, WORK
PROJECT OR TOUR OF DUTY . . .
IN OUR VIEW, THE PROPOSAL WOULD LEAVE AS MATTERS FOR THE AGENCY TO
DECIDE THE "NUMBERS, TYPES, AND GRADES" OF EMPLOYEES ASSIGNED TO VEHICLE
INSPECTIONS-- REQUIRING, AS WE HAVE INDICATED, ONLY THAT SUCH EMPLOYEES
AS THE AGENCY DECIDES TO ASSIGN WILL BE PERMITTED TO ROTATE, FAIRLY AND
EQUITABLY, THROUGH THOSE ASSIGNMENTS. CONTRARY TO THE AGENCY'S
ASSERTION, NOTHING IN THIS PROPOSAL WOULD REQUIRE THE AGENCY TO
NEGOTIATE ABOUT THE NATURE OF DUTIES TO WHICH EMPLOYEES WILL BE
ASSIGNED, AND WE THEREFORE MUST FIND THAT THE PROPOSAL IS NOT EXCLUDED
FROM THE BARGAINING OBLIGATION BY SECTION 11(B).
ACCORDINGLY, WE HOLD THAT THE UNION'S PROPOSAL IS NOT RENDERED
NONNEGOTIABLE UNDER SECTIONS 11(B) OR 12(B) OF THE ORDER, AND THE AGENCY
HEAD DETERMINATION TO THE CONTRARY WAS IMPROPER AND MUST BE SET ASIDE.
2. ROTATION OF EMPLOYEES THROUGH WORK AVAILABLE WITHIN JOB TITLE.
THE UNION'S SECOND PROPOSAL PROVIDES AS FOLLOWS:
ARTICLE 25, SECTION A
TO PROVIDE FOR EMPLOYEE DEVELOPMENT THE SERVICE AGREES TO ROTATE
EMPLOYEES THROUGH THE
VARIOUS PHASES OF WORK WITHIN THEIR JOB TITLE THAT IS AVAILABLE.
THIS TRAINING WILL BE GIVEN
CONSIDERATION AT APPRAISAL TIME. (ONLY THE UNDERSCORED PORTION IS IN
DISPUTE.)
THE AGENCY MAINTAINS THAT THE DISPUTED PORTION OF THIS PROPOSAL IS
EITHER NONNEGOTIABLE UNDER SECTION 12(B)(2) OF THE ORDER OR IS EXCEPTED
FROM THE OBLIGATION TO NEGOTIATE BY SECTION 11(B).
IN PARTICULAR, AS TO SECTION 12(B)(2) THE AGENCY CONTENDS THAT THE
PROPOSAL WOULD INFRINGE UPON RIGHTS RESERVED TO MANAGEMENT UNDER THAT
SECTION "BY ESTABLISHING ROTATION AS THE EXCLUSIVE MEANS OF ASSIGNING
SERVICE EMPLOYEES." ACCORDING TO THE AGENCY, CERTAIN JOB TITLES, SUCH AS
IMMIGRATION INSPECTOR, APPLY TO EMPLOYEES IN DIFFERENT POSITIONS,
PERFORMING DIFFERENT COMBINATIONS OF DUTIES AT A NUMBER OF DIFFERENT
PORTS OF ENTRY. THESE EMPLOYEES, "AS A MATTER OF PRACTICE," DO NOT NOW
ROTATE FROM ONE PORT OF ENTRY TO ANOTHER, AND THE AGENCY OBJECTS TO THE
INSTANT PROPOSAL CHIEFLY BECAUSE OF ITS VIEW THAT THE PROPOSAL WOULD
REQUIRE SUCH ROTATION.
IN THIS REGARD, THE AGENCY'S INTERPRETATION OF THE INTENDED MEANING
OF THE PROPOSAL IS AT VARIANCE WITH THE UNION'S EXPLANATION THEREOF IN
ITS PETITION FOR COUNCIL REVIEW, WHEREIN THE UNION STATED AS FOLLOWS:
ONCE THE AGENCY HAS DETERMINED THAT CERTAIN WORK MUST BE PERFORMED BY
SPECIFIC EMPLOYEES,
THEN THE PROPOSAL WOULD IMPLY THAT EMPLOYEES WOULD ROTATE THROUGH
VARIOUS PHASES OF SUCH WORK
WITHIN THEIR JOB TITLES WHEN SUCH WORK IS AVAILABLE. (EMPHASIS BY
UNION.)
CLEARLY, IN DETERMINING THAT "CERTAIN WORK MUST BE PERFORMED BY
SPECIFIC EMPLOYEES," THE AGENCY WOULD BE DETERMINING WHICH EMPLOYEES
WOULD PERFORM THE DISTINCTIVE COMBINATIONS OF DUTIES REQUIRED OF A
POSITION AT PARTICULAR PORTS OF ENTRY. FROM THIS IT FOLLOWS THAT THE
PHRASE "VARIOUS PHASES OF WORK WITHIN THEIR JOB TITLES" AS USED IN THIS
PROPOSAL REFERS ONLY TO THE DISTINCTIVE COMBINATIONS OF DUTIES
COMPRISING SUCH INDIVIDUAL POSITIONS, RATHER THAN TO GENERIC
CLASSIFICATIONS SUCH AS IMMIGRATION INSPECTOR WHICH WOULD EMBRACE THE
DISTINCTIVE GROUPS OF DUTIES OF A NUMBER OF POSITIONS. AS A RESULT, THE
PROPOSAL WOULD REQUIRE ONLY THAT AN EMPLOYEE ROTATE THROUGH THE VARIETY
OF DUTIES CONTAINED IN HIS OR HER OWN POSITION DESCRIPTION IF WORK
REQUIRING THE PERFORMANCE OF SUCH DUTIES IS AVAILABLE.
THUS, THE PROPOSAL WOULD NOT, CONTRARY TO THE AGENCY'S CONTENTIONS,
ESTABLISH ROTATION AS AN EXCLUSIVE "MEANS OF ASSIGNMENT," OR REQUIRE
THAT EMPLOYEES BE ASSIGNED TO POSITIONS OTHER THAN THEIR OWN BUT, AS
ALREADY INDICATED, WOULD PERTAIN SIMPLY TO THE ROTATION OF EMPLOYEES TO
PERFORM DUTIES PREVIOUSLY ASSIGNED TO THEM BY MANAGEMENT. FURTHERMORE,
NOTHING IN THE PROPOSAL RESTRICTS AGENCY MANAGEMENT IN MAKING NEW
ASSIGNMENTS OR MODIFYING OR TERMINATING EXISTING ONES WHEN AND IF IT
FINDS NECESSARY OR DESIRABLE. THEREFORE, WE MUST FIND THAT NEGOTIATION
OF THE PROPOSAL DOES NOT CONFLICT WITH RIGHTS RESERVED TO THE AGENCY BY
SECTION 12(B)(2) OF THE ORDER.
AS PREVIOUSLY INDICATED, THE AGENCY ALSO ASSERTS THAT THE PROPOSAL
CONCERNS MATTERS RELATING TO THE AGENCY'S STAFFING PATTERNS AND THUS
FALLS OUTSIDE THE OBLIGATION TO BARGAIN UNDER SECTION 11(B) OF THE
ORDER. THIS ASSERTION, HOWEVER, RESTS PRIMARILY UPON THE SAME ERRONEOUS
INTERPRETATION OF THE PROPOSAL UPON WHICH THE AGENCY RELIED IN
CONNECTION WITH ITS CONTENTIONS UNDER SECTION 12(B)(2): THAT IS, THE
AGENCY IN EFFECT VIEWS THE PROPOSAL AS REQUIRING THE ROTATION OF
EMPLOYEES FROM ONE POSITION, OR ONE COMBINATION OF DUTIES, TO ANOTHER.
HOWEVER, IT IS OUR OPINION, AS DISCUSSED PREVIOUSLY, THAT THE MEANING OF
THE PROPOSAL HERE IS QUITE DIFFERENT. AS WE HAVE STATED, THE PROPOSAL
DOES NOT LIMIT MANAGEMENT'S AUTHORITY TO DETERMINE WHICH DUTIES WILL BE
ASSIGNED TO ANY GIVEN POSITION OR EMPLOYEE AND, IN LIKE MANNER, NEITHER
THE PROPOSAL ITSELF NOR THE UNION'S EXPLANATION THEREOF CONTAINS
LANGUAGE WHICH WOULD LIMIT MANAGEMENT'S DETERMINATIONS AS TO THE
NUMBERS, TYPES, AND GRADES OF THOSE POSITIONS OR EMPLOYEES.
THIS BEING THE CASE, WE MUST FIND THAT THE PROPOSAL IS NOT EXCEPTED
BY SECTION 11(B) FROM THE AGENCY'S OBLIGATION TO NEGOTIATE.
ACCORDINGLY, WE HOLD THAT THE PROPOSAL IS NOT RENDERED NONNEGOTIABLE
BY SECTION 11(B) OR 12(B) OF THE ORDER AND THE AGENCY HEAD DETERMINATION
TO THE CONTRARY WAS IMPROPER AND MUST BE SET ASIDE.
3. ROTATION OF EMPLOYEES THROUGH DETAILS AWAY FROM DUTY STATIONS.
THE THIRD PROPOSAL PROVIDES AS FOLLOWS:
ARTICLE 25, SECTION B:
PATROL AGENTS WILL ROTATE THROUGH BORDER PATROL DETAILS AWAY FROM THE
DUTY STATION UNLESS
THE UNION AND THE EMPLOYER AGREE TO A DIFFERENT PROCEDURE AT THE
SECTOR LEVEL.
THE AGENCY CONTENDS THAT THIS PROPOSAL WOULD, CONTRARY TO SECTION
11(B) OF THE ORDER, "INFRINGE UPON MANAGEMENT'S RIGHT NOT TO BARGAIN ON
THE NUMBERS, TYPES, AND GRADES OF POSITIONS OR EMPLOYEES ASSIGNED TO A
WORK PROJECT OR TOUR OF DUTY." THE UNION ARGUES THAT THE PROPOSAL "DOES
NOT INFRINGE UPON THE EMPLOYER'S RIGHT TO ESTABLISH DETAILS" BUT "MERELY
ESTABLISHES THE PROCEDURE THE EMPLOYER WILL USE WHEN IMPLEMENTING (ITS)
DECISION TO DETAIL EMPLOYEES AWAY FROM THE DUTY STATION."
THE TERM "DETAIL," AS IT RELATES TO FEDERAL EMPLOYMENT, MEANS THE
TEMPORARY ASSIGNMENT OF AN EMPLOYEE TO A POSITION OTHER THAN THE ONE TO
WHICH HE OR SHE IS REGULARLY ASSIGNED. /4/ SINCE DIFFERENT POSITIONS
USUALLY WILL ENTAIL DIFFERENT DUTIES, IT IS CLEAR THAT GENERALLY THE
DETAIL OF AN EMPLOYEE CONTEMPLATES THE EMPLOYEE'S PERFORMING AT LEAST
SOME DUTIES UNLIKE THOSE WHICH HE OR SHE REGULARLY PERFORMS.
THE UNION DOES NOT CONTEND THAT THE TERM "DETAIL" AS USED IN THE
INSTANT PROPOSAL HAS ANY DIFFERENT MEANING OR THAT DETAILS WITH WHICH
THE PROPOSAL IS CONCERNED WOULD NOT ALSO RESULT IN THE PERFORMANCE BY
EMPLOYEES OF DUTIES DIFFERENT FROM THOSE REGULARLY ASSIGNED. THE EFFECT
OF THIS PROPOSAL, THEN, WOULD BE TO REQUIRE THE AGENCY TO NEGOTIATE
ABOUT MATTERS RELATING TO THE PERFORMANCE OF THOSE DIFFERENT DUTIES FOR
THE DURATION OF THE DETAIL. WE AGREE WITH THE AGENCY THAT SUCH A
REQUIREMENT IS EXCEPTED FROM THE BARGAINING OBLIGATION BY THE PHRASE
"THE NUMBERS, TYPES, AND GRADES OF POSITIONS OR EMPLOYEES ASSIGNED TO AN
ORGANIZATIONAL UNIT, WORK PROJECT OR TOUR OF DUTY" IN SECTION 11(B) OF
THE ORDER. /5/
TO ILLUSTRATE, THIS PROPOSAL MAY BE COMPARED WITH THE SECOND PROPOSAL
PREVIOUSLY DISCUSSED HEREIN, ARTICLE 25, SECTION A, WHICH REQUIRED THE
AGENCY "TO ROTATE EMPLOYEES THROUGH THE VARIOUS PHASES OF WORK WITHIN
THEIR JOB TITLE THAT IS AVAILABLE." WE FOUND THAT THE ROTATION REQUIRED
UNDER THAT PROPOSAL, AS EXPLAINED BY THE UNION IN ITS PETITION, WAS
LIMITED TO THE DUTIES OF EACH EMPLOYEE'S OWN POSITION. WE CONCLUDED ON
THAT BASIS THAT NEGOTIATION OF THE PROPOSAL WOULD NOT REQUIRE THE AGENCY
TO BARGAIN ON MATTERS WITH RESPECT TO STAFFING PATTERNS AND, THUS, WAS
NOT EXCLUDED FROM THE BARGAINING OBLIGATION BY SECTION 11(B). IN
CONTRAST, THE INSTANT PROPOSAL, THROUGH ITS APPLICATION TO "DETAILS,"
CLEARLY ENCOMPASSES THE ROTATION OF EMPLOYEES FROM THE DUTIES OF ONE
POSITION TO THOSE OF ANOTHER. WE CONCLUDE, ACCORDINGLY, THAT THE
PROPOSAL IS OUTSIDE THE BARGAINING OBLIGATION UNDER SECTION 11(B).
THIS IS NOT TO SAY THAT A PROPOSAL LIMITED TO THE ROTATION OF
EMPLOYEES INTO DETAILS OR OTHER ASSIGNMENTS COMPRISING ONLY THOSE DUTIES
REGULARLY ASSIGNED AND MERELY REQUIRING THEIR PERFORMANCE IN, FOR
EXAMPLE, A DIFFERENT ORGANIZATIONAL OR GEOGRAPHIC LOCATION WOULD
NECESSARILY LEAD TO THE SAME RESULT. WE HOLD ONLY THAT THE INSTANT
PROPOSAL, WHICH CONTAINS NO SUCH LIMITATION, WOULD SO INFLUENCE THE
AGENCY'S ABILITY TO EXERCISE CONTROL OVER ITS STAFFING PATTERNS AS TO
REQUIRE EXCLUSION FROM THE OBLIGATION TO BARGAIN UNDER SECTION 11(B).
4. OFFICIAL DAY TO START WHEN EMPLOYEE REPORTS DEPARTURE FROM HOME.
THE FOURTH PROPOSAL IS AS FOLLOWS:
ARTICLE 22, SECTION C:
IN THOSE INSTANCES WHERE IT IS DETERMINED BY HIS SUPERVISOR THAT IT
IS IN THE BEST INTEREST
OF THE GOVERNMENT FOR THE EMPLOYEE TO LEAVE HIS HOME TO REPORT TO A
DISTANT POINT OF DUTY, HIS
OFFICIAL DAY WILL START WHEN HE CALLS HIS NORMAL DUTY STATION AND
REPORTS THE FACT THAT HE HAS
DEPARTED.
THE AGENCY DETERMINED THAT THIS PROPOSAL IS NONNEGOTIABLE BECAUSE IT
CONFLICTS WITH PUBLISHED AGENCY REGULATIONS, NAMELY DEPARTMENT OF
JUSTICE ORDER 2200.4A, /6/ SETTING FORTH VARIOUS CONDITIONS FOR
DETERMINING HOURS OF EMPLOYMENT.
THE UNION, IN TURN, ASSERTS THAT THE PROPOSAL IS NEGOTIABLE BOTH
BECAUSE "(I)T LEAVES TO MANAGEMENT SOLE AUTHORITY TO DECIDE WHEN THE
CLAUSE WOULD BE APPLICABLE," AS WELL AS BECAUSE THE "EMPLOYEE'S OFFICIAL
DAY WOULD START ONLY IF HE RECEIVES THE APPROVAL OF HIS SUPERVISOR. . .
"
SECTION 11(C)(4)(II) OF THE ORDER STATES, WITH RESPECT TO AGENCY
REGULATIONS ASSERTED TO BAR NEGOTIATION, THAT A UNION MAY APPEAL TO THE
COUNCIL FOR A DECISION WHEN IT BELIEVES THAT AN AGENCY'S REGULATIONS, AS
INTERPRETED BY THE AGENCY HEAD, "VIOLATE APPLICABLE LAW, REGULATION OF
APPROPRIATE AUTHORITY OUTSIDE THE AGENCY, OR THIS ORDER . . . " HOWEVER,
IN THE INSTANT CASE, THE UNION ONLY DISPUTES THE PROPRIETY OF THE AGENCY
DETERMINATION BASED ON THE UNION'S INTERPRETATION, IN EFFECT, THAT THE
PROPOSAL IS NOT INCONSISTENT WITH AGENCY REGULATIONS. /7/
THEREFORE, BECAUSE THE UNION DOES NOT CONTEND, NOR DOES IT OTHERWISE
APPEAR, THAT THE AGENCY REGULATION AS INTERPRETED AND RELIED UPON BY THE
AGENCY HEAD IN ANY MANNER VIOLATES APPLICABLE LAW, REGULATION OF
APPROPRIATE AUTHORITY OUTSIDE THE AGENCY, OR THE ORDER, THE UNION'S
APPEAL AS TO THIS PROPOSAL FAILS TO MEET THE CONDITIONS FOR REVIEW
PRESCRIBED IN SECTION 11(C)(4) OF THE ORDER AND, ACCORDINGLY, MUST BE
DENIED.
5. WORKING HOURS IN EACH DAY OF BASIC WORKWEEK TO BE THE SAME.
THE FIFTH PROPOSAL READS AS FOLLOWS:
ARTICLE 23, SECTION A(3):
THE WORKING HOURS IN EACH DAY IN THE BASIC WORKWEEK SHALL BE THE
SAME.
THE AGENCY ARGUES THAT THIS PROPOSAL IS NONNEGOTIABLE UNDER SECTION
12(B)(4) OF THE ORDER, CLAIMING THAT IT WOULD ELIMINATE "SCHEDULING
FLEXIBILITIES" PRESENTLY UTILIZED, REQUIRING MANAGEMENT TO RELY UPON
SCHEDULED OVERTIME IN INSTANCES WHERE PEAK IMMIGRATION INSPECTION
PERIODS EXTEND BEYOND 8 HOURS DAILY, AND WOULD THEREBY IMPOSE UPON THE
AGENCY "PROHIBITIVE" INCREASED COSTS.
THE UNION INDICATES THAT THE PROPOSAL MERELY IS "AN EXCERPT FROM 5
U.S.C. 6101(A)(3)," /8/ WHICH CONCERNS THE ESTABLISHMENT OF WORK
SCHEDULES. THE UNION FURTHER INDICATES THAT, TOGETHER WITH PREFATORY
QUALIFYING LANGUAGE UPON WHICH, IT ALLEGES WITHOUT CONTRADICTION, THE
PARTIES HAVE ALREADY AGREED, THE PROPOSAL WOULD APPEAR IN THE AGREEMENT
IN CONTEXT AS FOLLOWS:
SECTION A. IT IS AGREED THAT EXCEPT WHERE THE AGENCY DETERMINES THAT
IT WOULD BE SERIOUSLY
HANDICAPPED IN CARRYING OUT ITS FUNCTIONS OR THAT THE COST WOULD BE
SUBSTANTIALLY INCREASED,
TO PROVIDE THE FOLLOWING:
(3) THE WORKING HOURS IN EACH DAY IN THE BASIC WORKWEEK SHALL BE THE
SAME.
SECTION 12(B)(4) OF THE ORDER RESERVES TO AGENCY MANAGEMENT OFFICIALS
THE RIGHT, IN ACCORDANCE WITH APPLICABLE LAW AND REGULATIONS, "TO
MAINTAIN THE EFFICIENCY OF THE GOVERNMENT OPERATIONS ENTRUSTED TO THEM."
THE PROPER INVOCATION OF THIS RIGHT TO PRECLUDE NEGOTIATIONS WAS
CAREFULLY EXAMINED BY THE COUNCIL IN THE LITTLE ROCK CASE. /9/ IN THAT
CASE, THE AGENCY ASSERTED THAT UNION PROPOSALS LIMITING THE AGENCY'S
PRACTICE OF ASSIGNING "SWING" OPERATORS IN SUCH A WAY AS TO AVOID
OVERTIME AND HOLIDAY PAY WOULD CONSTRAIN AGENCY ATTEMPTS TO REDUCE
PREMIUM PAY COSTS AND WOULD THEREBY INTERFERE WITH THE AGENCY'S RIGHT TO
MAINTAIN THE EFFICIENCY OF ITS OPERATIONS UNDER SECTION 12(B)(4). THE
COUNCIL, IN THE COURSE OF FINDING THE PROPOSAL TO BE NEGOTIABLE,
EXPLAINED AS FOLLOWS:
IN GENERAL, AGENCY DETERMINATIONS AS TO NEGOTIABILITY MADE IN
RELATION TO THE CONCEPT OF
EFFICIENCY AND ECONOMY IN SECTION 12(B)(4) OF THE ORDER AND SIMILAR
LANGUAGE IN THE STATUTES
REQUIRE CONSIDERATION AND BALANCING OF ALL THE FACTORS INVOLVED,
INCLUDING THE WELL-BEING OF
EMPLOYEES, RATHER THAN AN ARBITRARY DETERMINATION BASED ONLY ON THE
ANTICIPATION OF INCREASED
COSTS. OTHER FACTORS SUCH AS THE POTENTIAL FOR IMPROVED PERFORMANCE,
INCREASED PRODUCTIVITY,
RESPONSIVENESS TO DIRECTION, REDUCED TURNOVER, FEWER GRIEVANCES,
CONTRIBUTION OF MONEYSAVING
IDEAS, IMPROVED HEALTH AND SAFETY, AND THE LIKE, ARE VALID
CONSIDERATIONS. WE BELIEVE THAT
WHERE OTHERWISE NEGOTIABLE PROPOSALS ARE INVOLVED THE MANAGEMENT
RIGHT IN SECTION 12(B)(4) MAY
NOT PROPERLY BE INVOKED TO DENY NEGOTIATIONS UNLESS THERE IS A
SUBSTANTIAL DEMONSTRATION BY
THE AGENCY THAT INCREASED COSTS OR REDUCED EFFECTIVENESS IN
OPERATIONS ARE INESCAPABLE AND
SIGNIFICANT AND ARE NOT OFFSET BY COMPENSATING BENEFITS.
IN THE INSTANT CASE, AS IN LITTLE ROCK, THE AGENCY BASES ITS
DETERMINATION THAT THE PROPOSAL IS NONNEGOTIABLE SOLELY UPON THE
ANTICIPATION OF INCREASED COSTS FOR PREMIUM PAY. AND, AS IN LITTLE
ROCK, THE AGENCY HERE FAILS TO MAKE ANY SHOWING THAT (AMONG OTHER
FACTORS, NOTED IN THE QUOTED EXCERPT FROM LITTLE ROCK, TO BE CONSIDERED,
BALANCED, AND DEMONSTRATED BEFORE SECTION 12(B)(4) MAY PROPERLY BE
INVOKED TO BAR NEGOTIATIONS) THE INCREASED COSTS WHICH IT CLAIMS WOULD
RESULT FROM THE PROPOSAL ARE INESCAPABLE. MOREOVER, IN OUR OPINION,
NEITHER CAN SUCH A FINDING BE INFERRED FROM THE RECORD BEFORE US. IN
THIS REGARD, THE AGENCY DOES NOT SEEK TO CONTROVERT AND THEREBY TACITLY
ACCEDES TO THE UNION'S ASSERTION THAT THE PARTIES HAVE AGREED TO
LANGUAGE WHICH QUALIFIES THE MEANING OF THE DISPUTED PROPOSAL SO AS TO
RENDER IT INAPPLICABLE IN THE EVENT THE AGENCY ITSELF "DETERMINES THAT
IT WOULD BE SERIOUSLY HANDICAPPED IN CARRYING OUT ITS FUNCTIONS OR THAT
COST WOULD BE SUBSTANTIALLY INCREASED." (EMPHASIS SUPPLIED). FURTHER,
IN THIS REGARD, THE LITERAL LANGUAGE OF THE DISPUTED PROPOSAL IN NO WAY
PURPORTS TO LIMIT MANAGEMENT'S AUTHORITY TO ESTABLISH, FOR EXAMPLE,
VARIOUS WORK SHIFTS TO COPE WITH PEAK WORKLOAD PERIODS, IN LIEU OF
RELYING SOLELY ON OVERTIME WORK REQUIRING PREMIUM PAY. THUS, BASED ON
THE RECORD BEFORE US SHOWING THE QUALIFYING CONTEXT IN WHICH THE
DISPUTED PROPOSAL WOULD APPEAR IN THE PARTIES' AGREEMENT, AS WELL AS THE
LITERAL MEANING OF THE PROPOSAL ITSELF, NO BASIS IS APPARENT UPON WHICH
THE AGENCY MIGHT PERSUASIVELY ARGUE THAT IT COULD NOT AVOID ANY
SUBSTANTIAL INCREASED COSTS SUCH AS IT ALLEGES MIGHT RESULT FROM
IMPLEMENTATION OF THE PROPOSAL IN QUESTION.
ACCORDINGLY, WE FIND THAT THE AGENCY HAS NOT MET ITS BURDEN OF
SHOWING THE APPLICABILITY OF SECTION 12(B)(4), AND HOLD THAT THE AGENCY
HEAD'S DETERMINATION THAT THE PROPOSAL IS RENDERED NONNEGOTIABLE UNDER
THAT SECTION OF THE ORDER WAS IMPROPER AND MUST BE SET ASIDE.
6. & 7. APPROPRIATE COMMUNICATIONS EQUIPMENT.
THE SIXTH AND SEVENTH UNION PROPOSALS ARE AS FOLLOWS:
ARTICLE 18, SECTION L:
APPROPRIATE COMMUNICATION EQUIPMENT WILL BE INSTALLED IN ALL
IMMIGRATION VEHICLES IN THOSE
PLACES WHERE OFFICERS ARE REQUIRED TO WORK IN REMOTE AREAS. THE
EQUIPMENT WILL PROVIDE FOR
PROMPT CONTACT WITH LOCAL LAW ENFORCEMENT AUTHORITIES.
ARTICLE 18, SECTION O:
FOR SAFETY CONSIDERATIONS APPROPRIATE COMMUNICATION EQUIPMENT WILL BE
PROVIDED FOR
COMMUNICATIONS BETWEEN ALL AGENCY VEHICLES AND THEIR ASSIGNED
OFFICES.
THESE TWO PROPOSALS SHARE A COMMON THEME-- THE PROVISION OF
"APPROPRIATE COMMUNICATION EQUIPMENT"-- FOR USE BETWEEN AGENCY VEHICLES
AND LOCAL LAW ENFORCEMENT AUTHORITIES IN THE FIRST INSTANCE, AND BETWEEN
THE VEHICLES AND THEIR ASSIGNED OFFICES IN THE SECOND. AS TO EACH
PROPOSAL, THE PARTIES' POSITIONS ARE THE SAME. THE AGENCY HEAD
DETERMINED THAT BOTH PROPOSALS ARE CONCERNED WITH THE TECHNOLOGY OF
PERFORMING THE AGENCY'S WORK AND ARE THUS EXCLUDED FROM THE BARGAINING
OBLIGATION BY SECTION 11(B) OF THE ORDER, /10/ WHILE THE UNION CONTENDS
THAT THE PROPOSALS SEEK ONLY TO ESTABLISH STANDARDS OF HEALTH AND SAFETY
WHICH IT CLAIMS ARE NEGOTIABLE UNDER THE COUNCIL'S BORDER PATROL, YUMA
DECISION. /11/
IN BORDER PATROL, YUMA, THE UNION'S PROPOSAL DEALT WITH THE
MAINTENANCE OF BORDER PATROL "DRAG ROADS" (SURVEILLANCE DEVICES),
REQUIRING THE "REGULAR" MAINTENANCE OF SUCH ROADS BY THE AGENCY SO THAT
THEY WOULD BE IN A "REASONABLY" LEVEL CONDITION AND FREE OF "EXCESSIVE"
DUST.
THE COUNCIL HELD THE PROPOSAL WAS NOT EXCEPTED FROM THE DUTY TO
BARGAIN AS A MATTER OF "TECHNOLOGY" UNDER SECTION 11(B) BECAUSE THE
PROPOSAL DID NOT REQUIRE THE AGENCY TO BARGAIN ON THE "TECHNOLOGY" OF
THE DRAG ROADS. RATHER, IT MERELY REQUIRED THAT THIS "TECHNOLOGY," AS
ADOPTED BY THE AGENCY, BE IMPLEMENTED IN A MANNER CONSISTENT WITH THE
HEALTH AND SAFETY OF BORDER PATROL OFFICERS. IN OTHER WORDS, THE
UNION'S PROPOSAL IN THAT CASE DID NOT PURPORT TO DECIDE WHETHER OR NOT,
OR TO WHAT EXTENT, DRAG ROADS WOULD BE USED. THE PROPOSAL ONLY REQUIRED
THAT, IF DRAG ROADS WERE USED, THEY WOULD BE MAINTAINED BY THE AGENCY TO
A GENERAL STANDARD, WHICH STANDARD THE AGENCY DID NOT ASSERT WOULD
REDUCE THE ROADS' EFFECTIVENESS AS SURVEILLANCE DEVICES.
IN SHARP CONTRAST, THE PROPOSALS IN THE INSTANT CASE BOTH WOULD
REQUIRE THE AGENCY TO NEGOTIATE NOT WITH RESPECT TO THE MAINTENANCE OF A
GENERAL STANDARD OF HEALTH OR SAFETY AS WAS PROPOSED IN BORDER PATROL,
YUMA, BUT, RATHER, WITH RESPECT TO THE INSTALLATION OR PROVISION FOR USE
IN ITS VEHICLES OF COMMUNICATIONS EQUIPMENT. IN OUR OPINION, THE
QUESTIONS WHETHER TO ADOPT FOR "ALL IMMIGRATION VEHICLES" AND FOR ALL
"AGENCY" VEHICLES THE USE OF VEHICLE-BASED COMMUNICATIONS EQUIPMENT, AS
THE PROPOSALS WOULD REQUIRE, ARE CLEARLY QUESTIONS CONCERNING THE
ADOPTION OF A PARTICULAR "TECHNOLOGY" OF PERFORMING THE AGENCY'S WORK.
AS SUCH, THEY ARE MATTERS EXCEPTED FROM THE BARGAINING OBLIGATION UNDER
SECTION 11(B) OF THE ORDER.
THUS, AS THE UNION'S PROPOSALS WOULD REQUIRE THE ADOPTION BY THE
AGENCY OF A PARTICULAR TECHNOLOGY FOR PERFORMING ITS WORK, WE MUST FIND,
AS DETERMINED BY THE AGENCY HEAD, THAT SUCH PROPOSALS ARE EXCLUDED BY
SECTION 11(B) FROM THE AGENCY'S OBLIGATION TO BARGAIN. ACCORDINGLY, THE
AGENCY HEAD'S DETERMINATION THAT THE PROPOSALS ARE NONNEGOTIABLE WAS
PROPER AND MUST BE SUSTAINED.
8. ASSIGNMENT OF OFFICERS IN PAIRS.
THE EIGHTH PROPOSAL PROVIDES:
ARTICLE 18, SECTION K:
OFFICERS ASSIGNED TO DUTIES INVOLVING THE APPREHENSION AND/OR
DETENTION OF VIOLATORS
INCLUDING CONVEYANCE BY SERVICE VEHICLES OTHER THAN BUSES SHALL BE
ASSIGNED TO WORK IN PAIRS
AT ALL TIMES. EXCEPTIONS TO THIS MAY BE MADE WHEN DUTIES REQUIRE
ADDITIONAL OFFICERS WHO WILL
BE ASSIGNED TOGETHER.
THE AGENCY ARGUES THAT THIS PROPOSAL "CLEARLY ATTEMPTS TO DICTATE
STAFFING PATTERNS" AND THUS IS EXCEPTED FROM THE DUTY TO BARGAIN BY
SECTION 11(B). THE UNION CONTENDS THAT THE PROPOSAL SEEKS TO IMPROVE
THE SAFETY AND HEALTH OF IMMIGRATION OFFICERS, CONSISTENT WITH THE
PROPOSAL WHICH THE COUNCIL FOUND NEGOTIABLE IN BORDER PATROL, YUMA, AND
DOES NOT REQUIRE BARGAINING ON THE NUMBERS, TYPES, AND GRADES OF THE
AGENCY'S PERSONNEL.
SECTION 11(B) OF THE ORDER PROVIDES THAT THE OBLIGATION TO BARGAIN
"DOES NOT INCLUDE MATTERS WITH RESPECT TO . . . THE NUMBER OF (THE
AGENCY'S) EMPLOYEES; OR THE NUMBERS, TYPES, AND GRADES OF POSITIONS OR
EMPLOYEES ASSIGNED TO AN ORGANIZATIONAL UNIT, WORK PROJECT, OR TOUR OF
DUTY . . . " THE UNION'S PROPOSAL WOULD REQUIRE THAT THE AGENCY ASSIGN
NO LESS THAN TWO OFFICERS, TOGETHER, "AT ALL TIMES," TO THE PERFORMANCE
OF CERTAIN, SPECIFIED DUTIES. THUS, IN OUR OPINION, IT IS CLEAR AND
UNDENIABLE THAT THIS PROPOSAL WOULD REQUIRE THE AGENCY TO NEGOTIATE WITH
RESPECT TO A PARTICULAR, NUMERICAL PATTERN OF EMPLOYEE ASSIGNMENT-- THE
SPECIFIC NUMBER OF EMPLOYEES TO BE ASSIGNED TO PERFORM SPECIFIC DUTIES.
IT SETS FORTH A STRICT RULE REGARDING THE MINIMUM NUMBER OF EMPLOYEES
WHICH THE AGENCY MUST ASSIGN TO PARTICULAR WORK PROJECTS OR TOURS OF
DUTY, AND WOULD THEREBY DIRECTLY IMPOSE UPON THE AGENCY A PARTICULAR
STAFFING PATTERN.
THEREFORE, WE FIND THAT THE PROPOSAL FALLS SQUARELY WITHIN THE AMBIT
OF SECTION 11(B) OF THE ORDER, WHICH EXPRESSLY EXCEPTS FROM THE AGENCY'S
BARGAINING OBLIGATION THE "NUMBERS, TYPES, AND GRADES OF POSITIONS OR
EMPLOYEES ASSIGNED TO AN ORGANIZATIONAL UNIT, WORK PROJECT OR TOUR OF
DUTY . . . " ACCORDINGLY, THE AGENCY DETERMINATION THAT THE PROPOSAL IS
NONNEGOTIABLE MUST BE SUSTAINED.
9. APPROPRIATE NUMBER OF AGENTS AND VEHICLES ASSIGNED TO
CHECKPOINTS.
THE NINTH UNION PROPOSAL READS AS FOLLOWS:
ARTICLE 18, SECTION M:
AN APPROPRIATE NUMBER OF BORDER PATROL AGENTS AND PATROL VEHICLES
EQUIPPED WITH FLASHING
EMERGENCY LIGHTS WILL BE ASSIGNED TO TRAFFIC CHECKPOINTS. THE NUMBER
OF EMPLOYEES AND
VEHICLES WILL BE SUFFICIENT TO PROVIDE ADEQUATE SAFETY PROTECTION.
(ONLY THE UNDERSCORED
PORTIONS ARE IN DISPUTE.)
THIS PROPOSAL IS ALSO CHARACTERIZED BY THE UNION AS A STANDARD OF
SAFETY, AND IN SUPPORT OF ITS NEGOTIABILITY THE UNION AGAIN RELIES UPON
THE BORDER PATROL, YUMA DECISION. THE AGENCY DETERMINED THAT THE
PROPOSAL IS EXCEPTED FROM THE DUTY TO BARGAIN BY SECTION 11(B) OF THE
ORDER. FOR THE REASONS WHICH FOLLOW, WE AGREE WITH THE AGENCY, WITH
RESPECT TO BOTH THE REQUIREMENTS AS TO "BORDER PATROL AGENTS" AND AS TO
"PATROL VEHICLES."
AS TO THE "AGENTS," WE ARE FACED ONCE AGAIN, AS IN REGARD TO THE
PREVIOUS PROPOSAL CONCERNING THE ASSIGNMENT OF OFFICERS IN PAIRS, WITH A
PROPOSAL WHICH, IN OUR VIEW, CONTEMPLATES THE NEGOTIATION OF A
LIMITATION ON THE AGENCY'S DISCRETION IN ALLOCATING THE NUMBER OF
EMPLOYEES ASSIGNED TO WORK PROJECTS OR TOURS OF DUTY, HERE, TRAFFIC
CHECKPOINTS. IN THIS REGARD, THE INSTANT PROPOSAL DOES NOT PRESCRIBE
THE EXACT NUMBER OF EMPLOYEES WHICH THE AGENCY MUST ASSIGN TO TRAFFIC
CHECKPOINTS BUT REQUIRES AN "APPROPRIATE" AND "SUFFICIENT" NUMBER.
HOWEVER, IN TERMS OF THE EXCLUSION FROM THE BARGAINING OBLIGATION OF THE
AGENCY'S STAFFING PATTERNS BY SECTION 11(B), NO DIFFERENCE EXISTS
BETWEEN A PROPOSAL REQUIRING THE AGENCY TO ASSIGN AN "APPROPRIATE"
NUMBER OF EMPLOYEES TO A GIVEN WORK PROJECT OR TOUR OF DUTY AND ONE
REQUIRING IT TO ASSIGN A SPECIFIC NUMBER OF EMPLOYEES. IN EITHER
INSTANCE, THE PROPOSAL AFFECTS THE NUMBERS OF EMPLOYEES THAT THE AGENCY
MIGHT ASSIGN TO PARTICULAR WORK PROJECTS OR TOURS OF DUTY AND,
THEREFORE, CONCERNS A MATTER EXCEPTED FROM THE BARGAINING OBLIGATION BY
SECTION 11(B). /12/
AS TO THE REQUIREMENT IN THE PROPOSAL FOR "PATROL VEHICLES," SECTION
11(B) ALSO EXCEPTS FROM THE AGENCY'S OBLIGATION TO BARGAIN MATTERS WITH
RESPECT TO "THE TECHNOLOGY OF PERFORMING ITS WORK . . . " IN THIS
REGARD, AS SIMILARLY INDICATED HEREIN IN CONNECTION WITH THE UNION'S
PROPOSALS CONCERNING COMMUNICATIONS EQUIPMENT, THE INSTANT PROPOSAL
WOULD REQUIRE THE AGENCY TO NEGOTIATE ABOUT THE USE OF PARTICULAR
EQUIPMENT TO PERFORM THE AGENCY'S WORK AT TRAFFIC CHECKPOINTS. WHILE
THE AGENCY MAY NEGOTIATE WITH RESPECT TO SUCH MATTERS IF IT CHOOSES,
/13/ SECTION 11(B) EXCEPTS SUCH MATTERS FROM ITS OBLIGATION TO DO SO.
IN SUMMARY, WHILE THE PROPOSAL SETS FORTH A GENERAL SAFETY STANDARD,
I.E., "ADEQUATE SAFETY PROTECTION," WHICH, STANDING ALONE, DOES NOT
APPEAR TO CONFLICT WITH THE ORDER, THE PROPOSAL ALSO MANDATES THE
SPECIFIC MANNER IN WHICH SUCH STANDARD WILL BE REQUIRED TO BE ACHIEVED
BY THE AGENCY: THE AGENCY MUST ASSIGN "AN APPROPRIATE NUMBER OF BORDER
PATROL AGENTS AND PATROL VEHICLES" TO TRAFFIC CHECKPOINTS. AS
INDICATED, SUCH MATTERS ARE EXCEPTED FROM THE OBLIGATION TO BARGAIN BY
SECTION 11(B) OF THE ORDER.
FOR THE REASONS DISCUSSED ABOVE, AND PURSUANT TO SECTIONS 2411.22 AND
2411.27 OF THE COUNCIL'S RULES AND REGULATIONS, WE FIND THAT:
1. THE UNION'S APPEAL FOR REVIEW OF THE AGENCY HEAD'S DETERMINATION
AS TO THE
NONNEGOTIABILITY OF ARTICLE 22, SECTION C, FAILS TO MEET THE
CONDITIONS PRESCRIBED IN SECTION
11(C)(4) OF THE ORDER AND MUST BE DENIED; AND
2. THE AGENCY'S DETERMINATION AS TO THE NONNEGOTIABILITY OF ARTICLE
18, SECTIONS K, L, M,
AND O, AND OF ARTICLE 25, SECTION B, WAS VALID AND MUST BE SUSTAINED;
AND
3. THE AGENCY'S DETERMINATION AS TO THE NONNEGOTIABILITY OF ARTICLE
18, SECTION A(1); OF
ARTICLE 23, SECTION A(3); AND OF ARTICLE 25, SECTION (A), WAS
IMPROPER AND MUST BE SET
ASIDE. THIS DECISION SHALL NOT BE CONSTRUED AS EXPRESSING OR
IMPLYING ANY OPINION OF THE
COUNCIL AS TO THE MERITS OF THE UNION'S PROPOSALS. WE DECIDE ONLY
THAT, AS SUBMITTED BY THE
UNION AND BASED ON THE RECORD BEFORE THE COUNCIL, THE PROPOSALS ARE
PROPERLY SUBJECT TO
NEGOTIATION BY THE PARTIES CONCERNED UNDER SECTION 11(A) OF THE
ORDER.
BY THE COUNCIL.
ISSUED: JUNE 26, 1975
/1/ IN ITS PETITION THE UNION ALSO REQUESTED THAT THE COUNCIL: (1)
"DIRECT FACTFINDING BY THE FEDERAL SERVICE IMPASSES PANEL"; OR (2)
"PERMIT ORAL ARGUMENT" ON THE ISSUES PRESENTED BY THIS APPEAL. AS TO
(1), SECTION 17 OF E.O. 11491, AS AMENDED, PROVIDES, IN PERTINENT PART,
THAT "(W)HEN VOLUNTARY ARRANGEMENTS, INCLUDING THE SERVICES OF THE
FEDERAL MEDIATION AND CONCILIATION SERVICE OR OTHER THIRD-PARTY
MEDIATION, FAIL TO RESOLVE A NEGOTIATION IMPASSE, EITHER PARTY MAY
REQUEST THE FEDERAL SERVICES IMPASSES PANEL TO CONSIDER THE MATTER." THE
UNION DOES NOT ALLEGE, NOR DOES IT OTHERWISE APPEAR, THAT AN IMPASSE HAS
BEEN REACHED WITH RESPECT TO ANY OF THE ISSUES IN THIS CASE AND
CONSEQUENTLY, APART FROM OTHER CONSIDERATIONS, THIS UNION REQUEST MUST
BE DENIED. AS CONCERNS (2), THE REQUEST FOR ORAL ARGUMENT, THE COUNCIL
IS OF THE OPINION THAT THE RECORD BEFORE IT ADEQUATELY PRESENTS THE
POSITIONS OF THE PARTIES, AND HENCE, PURSUANT TO SECTION 2411.48 OF THE
COUNCIL'S REGULATIONS, THE UNION'S REQUEST FOR ORAL ARGUMENT IS LIKEWISE
DENIED.
/2/ VETERANS ADMINISTRATION INDEPENDENT SERVICE EMPLOYEES UNION AND
VETERANS ADMINISTRATION RESEARCH HOSPITAL, CHICAGO, ILLINOIS, FLRC NO.
71A-31 (NOVEMBER 22, 1972), REPORT NO. 31; ACCORD, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES LOCAL 977 AND VETERANS ADMINISTRATION HOSPITAL,
MONTGOMERY, ALABAMA, FLRC NO. 73A-22 (JANUARY 31, 1974), REPORT NO. 48;
LODGE 2424, IAM-AW AND KIRK ARMY HOSPITAL AND ABERDEEN RESEARCH AND
DEVELOPMENT CENTER, FLRC NO. 72A-18 (SEPTEMBER 17, 1973), REPORT NO.
44.
/3/ THE AGENCY CONTENDS, WITHOUT SUPPORTING ARGUMENT, THAT ITS
POSITION IS SUPPORTED BY THE COUNCIL'S DECISIONS IN INTERNATIONAL
ASSOCIATION OF FIREFIGHTERS, LOCAL F-111, AND GRIFFISS AIR FORCE BASE,
ROME, NEW YORK, FLRC NO. 71A-30 (APRIL 19, 1973), REPORT NO. 36, AND IN
FEDERAL EMPLOYEES METAL TRADES COUNCIL OF CHARLESTON, AND CHARLESTON
NAVAL SHIPYARD, CHARLESTON, SOUTH CAROLINA, FLRC NO. 72A-46 (DECEMBER
27, 1973), REPORT NO. 47. IN GRIFFISS WE HELD THAT THE SPECIFIC DUTIES
ASSIGNED TO PARTICULAR POSITIONS OR EMPLOYEES, I.E. THE JOB CONTENT, ARE
"EXCLUDED FROM THE OBLIGATION TO BARGAIN UNDER THE WORDS 'ORGANIZATION'
AND 'NUMBERS, TYPES, AND GRADES OF POSITIONS OR EMPLOYEES ASSIGNED TO AN
ORGANIZATIONAL UNIT, WORK PROJECT OR TOUR OF DUTY' IN SECTION 11(B) OF
THE ORDER." WE SUBSEQUENTLY APPLIED THE PRINCIPLES ENUNCIATED IN
GRIFFISS IN THE CHARLESTON CASE. BOTH CASES INVOLVED PROPOSALS
CONCERNING MATTERS RELATED TO THE JOB CONTENT OF POSITIONS OR EMPLOYEES
ASSIGNED TO A WORK PROJECT OR TOUR OF DUTY. THUS, IN VIEW OF OUR
FINDING THAT THE INSTANT PROPOSAL DOES NOT OBLIGATE MANAGEMENT TO
BARGAIN OVER JOB CONTENT, THE CITED CASES ARE INAPPOSITE HERE.
/4/ FEDERAL PERSONNEL MANUAL CHAPTER 300, SUBCHAPTER 8-1, PROVIDES IN
PERTINENT PART THAT:
A DETAIL IS THE TEMPORARY ASSIGNMENT OF AN EMPLOYEE TO A DIFFERENT
POSITION FOR A SPECIFIED
PERIOD, WITH THE EMPLOYEE RETURNING TO HIS REGULAR DUTIES AT THE END
OF THE PERIOD.
/5/ CF. INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL F-111, AND
GRIFFISS AIR FORCE BASE, ROME, NEW YORK, FLRC NO. 71A-30 (APRIL 19,
1973), REPORT NO. 36.
/6/ PARAGRAPH 8B ("HOURS OF EMPLOYMENT") OF THE CITED REGULATION
PROVIDES:
TIME SPENT IN OFFICIAL TRAVEL IS DEEMED HOURS OF EMPLOYMENT WHEN:
(1) IT IS WITHIN THE EMPLOYEE'S REGULARLY SCHEDULED ADMINISTRATIVE
WORKWEEK, INCLUDING REGULAR
OVERTIME WORKED; OR (2) THE TRAVEL (1) INVOLVES THE PERFORMANCE OF
ACTUAL WORK WHILE
TRAVELING, (2) IS INCIDENT TO TRAVEL THAT INVOLVES THE PERFORMANCE OF
WORK WHILE TRAVELING,
(3) IS CARRIED OUT UNDER SUCH ARDUOUS AND UNUSUAL CONDITIONS THAT THE
TRAVEL IS INSEPARABLE
FROM WORK, OR (4) RESULTS FROM AN EVENT WHICH COULD NOT BE SCHEDULED
OR CONTROLLED
ADMINISTRATIVELY.
/7/ CF. NAGE LOCAL R1-34 AND U.S. ARMY, NATICK LABORATORIES,
MASSACHUSETTS, FLRC NO. 74A-69 (FEBRUARY 21, 1975), REPORT NO. 64.
/8/ 5 U.S.C. 6101(A)(3) PROVIDES IN RELEVANT PART:
EXCEPT WHEN THE HEAD OF AN EXECUTIVE AGENCY, A MILITARY DEPARTMENT,
OR OF THE GOVERNMENT OF
THE DISTRICT OF COLUMBIA DETERMINES THAT HIS ORGANIZATION WOULD BE
SERIOUSLY HANDICAPPED IN
CARRYING OUT ITS FUNCTIONS OR THAT COSTS WOULD BE SUBSTANTIALLY
INCREASED, HE SHALL PROVIDE,
WITH RESPECT TO EACH EMPLOYEE IN HIS ORGANIZATION, THAT-- (C) THE
WORKING HOURS IN EACH DAY IN
THE BASIC WORKWEEK ARE THE SAME . . .
/9/ LOCAL UNION 2219, INTERNATION BROTHERHOOD OF ELECTRICAL WORKERS,
AFL-CIO, AND DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS, LITTLE ROCK
DISTRICT, LITTLE ROCK, ARKANSAS, FLRC NO. 71A-46 (NOVEMBER 20, 1972),
REPORT NO. 30.
/10/ SECTION 11(B) PROVIDES, IN PERTINENT PART, THAT AN AGENCY'S
OBLIGATION TO NEGOTIATE "DOES NOT INCLUDE MATTERS WITH RESPECT TO . . .
THE TECHNOLOGY OF PERFORMING ITS WORK . . . "
/11/ AFGE LOCAL 2595 AND IMMIGRATION AND NATURALIZATION SERVICE, U.S.
BORDER PATROL, YUMA SECTOR (YUMA, ARIZONA), FLRC NO. 70A-10 (APRIL 15,
1971), REPORT NO. 6.
/12/ CF. FEDERAL EMPLOYEES METAL TRADES COUNCIL OF CHARLESTON,
AFL-CIO AND CHARLESTON NAVAL SHIPYARD, CHARLESTON, SOUTH CAROLINA, FLRC
NO. 72A-35 (JUNE 29, 1973), REPORT NO. 41.
/13/ FOR EXAMPLE, IN REGARD TO THE INSTANT PROPOSAL, THE AGENCY IS
APPARENTLY WILLING TO NEGOTIATE CONCERNING THE USE OF "FLASHING
EMERGENCY LIGHTS" AS PROPOSED BY THE UNION.
3 FLRC 377; FLRC NO. 75A-58; JUNE 25, 1975.
MR. STEVEN J. ZUBACK
ASSISTANT EXECUTIVE DIRECTOR
PENNSYLVANIA NURSES ASSOCIATION
2515 N. FRONT STREET
HARRISBURG, PENNSYLVANIA 17110
(SYNOPSIS) FLRC NO. 75A-58
PENNSYLVANIA NURSES ASSOCIATION AND VETERANS ADMINISTRATION HOSPITAL,
LEECH FARM ROAD, PITTSBURGH, PENNSYLVANIA. THE UNION FILED A PETITION
FOR REVIEW OF AN AGENCY HEAD'S DETERMINATION ON NEGOTIABILITY ISSUES,
WHICH DETERMINATION WAS DATED APRIL 28, 1975. UNDER THE COUNCIL'S RULES
OF PROCEDURE, THE UNION'S APPEAL WAS DUE IN THE COUNCIL'S OFFICE ON OR
ABOUT MAY 21, 1975. THE APPEAL WAS NOT RECEIVED BY THE COUNCIL,
HOWEVER, UNTIL JUNE 3, 1975, AND NO EXTENSION OF TIME FOR FILING WAS
EITHER REQUESTED BY THE UNION OR GRANTED BY THE COUNCIL UNDER SECTION
2411.45(D) OF THE COUNCIL'S RULES (5 CFR 2411.45(D)).
COUNCIL ACTION (JUNE 25, 1975). THE COUNCIL HELD THAT THE UNION'S
APPEAL WAS UNTIMELY FILED. ACCORDINGLY, APART FROM OTHER
CONSIDERATIONS, THE COUNCIL DENIED THE PETITION FOR REVIEW.
DEAR MR. ZUBACK:
REFERENCE IS MADE TO YOUR PETITION FOR REVIEW OF AN AGENCY HEAD'S
DETERMINATION ON NEGOTIABILITY ISSUES, FILED WITH THE COUNCIL IN THE
ABOVE-ENTITLED CASE. FOR THE REASONS INDICATED BELOW, THE COUNCIL HAS
DECIDED THAT YOUR PETITION WAS UNTIMELY FILED AND CANNOT BE ACCEPTED FOR
REVIEW.
SECTION 2411.23(B) OF THE COUNCIL'S RULES (A COPY OF WHICH IS
ENCLOSED FOR YOUR CONVENIENCE) SPECIFICALLY PROVIDES THAT AN APPEAL MUST
BE FILED WITHIN 20 DAYS FROM THE DATE THE AGENCY HEAD'S DETERMINATION
WAS SERVED ON THE LABOR ORGANIZATION. UNDER SECTION 2411.45(C) OF THE
RULES, THREE ADDITIONAL DAYS ARE ALLOWED WHEN SERVICE IS BY MAIL; AND,
UNDER SECTION 2411.45(A), SUCH APPEAL MUST BE RECEIVED IN THE COUNCIL'S
OFFICE BEFORE THE CLOSE OF BUSINESS ON THE LAST DAY OF THE PRESCRIBED
TIME LIMIT.
THE AGENCY HEAD'S DETERMINATION HERE INVOLVED IS DATED APRIL 28, 1975
AND, SO FAR AS YOUR APPEAL INDICATES, WAS MAILED ON OR ABOUT THE SAME
DATE. THEREFORE, UNDER THE ABOVE MENTIONED RULES, YOUR APPEAL WAS DUE
IN THE OFFICE OF THE COUNCIL ON OR ABOUT MAY 21, 1975. HOWEVER, YOUR
APPEAL WAS NOT FILED UNTIL JUNE 3, 1975, AND NO EXTENSION OF THE TIME
FOR FILING WAS EITHER REQUESTED BY YOUR ORGANIZATION OR GRANTED BY THE
COUNCIL UNDER SECTION 2411.45(D) OF THE COUNCIL'S RULES.
ACCORDINGLY, AS YOUR APPEAL WAS UNTIMELY FILED, AND APART FROM OTHER
CONSIDERATIONS, THE COUNCIL HAS DIRECTED THAT YOUR PETITION FOR REVIEW
BE DENIED.
BY THE COUNCIL.
ENCLOSURE
CC: R. L. ROUDEBUSH
VA
3 FLRC 375; FLRC NO. 75A-12; JUNE 25, 1975.
MR. JACK L. COPESS
HAWAII FEDERAL EMPLOYEES METAL
TRADES COUNCIL
925 BETHEL STREET, ROOM 210
HONOLULU, HAWAII 96813
(SYNOPSIS) FLRC NO. 75A-12
DEPARTMENT OF NAVY, PEARL HARBOR NAVAL SHIPYARD, ASSISTANT SECRETARY
CASE NO. 73-574. THE ASSISTANT SECRETARY AFFIRMED THE ASSISTANT
REGIONAL DIRECTOR'S DISMISSAL OF THE HAWAII FEDERAL EMPLOYEES METAL
TRADES COUNCIL'S UNFAIR LABOR PRACTICE COMPLAINT, WHICH ALLEGED A
VIOLATION OF SECTION 19(A)(1) OF THE ORDER BY THE AGENCY. THE UNION
APPEALED TO THE COUNCIL, CONTENDING THAT THE ASSISTANT SECRETARY'S
DECISION WAS ARBITRARY AND CAPRICIOUS.
COUNCIL ACTION (JUNE 25, 1975). THE COUNCIL HELD THAT THE ASSISTANT
SECRETARY'S DETERMINATION DID NOT APPEAR TO BE WITHOUT REASONABLE
JUSTIFICATION OR IN ANY OTHER MANNER ARBITRARY AND CAPRICIOUS. IN
ADDITION, THE COUNCIL RULED THAT THE UNION DOES NOT ALLEGE, NOR DOES IT
OTHERWISE APPEAR, THAT A MAJOR POLICY ISSUE IS PRESENTED. CONSEQUENTLY,
SINCE THE UNION'S PETITION FOR REVIEW FAILED TO MEET THE REQUIREMENTS
FOR REVIEW SET FORTH IN SECTION 2411.12 OF THE COUNCIL'S RULES (5 CFR
2411.12), THE COUNCIL DENIED REVIEW OF THE UNION'S APPEAL.
DEAR MR. COPESS:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR REQUEST FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-CAPTIONED CASE.
IN THIS CASE, THE ASSISTANT SECRETARY AFFIRMED THE ASSISTANT REGIONAL
DIRECTOR'S DISMISSAL OF YOUR UNFAIR LABOR PRACTICE COMPLAINT, WHICH
ALLEGED A VIOLATION OF SECTION 19(A)(1) OF THE ORDER. THE ASSISTANT
SECRETARY FOUND THAT DURING A GENERAL MEETING HELD TO DISCUSS A PENDING
WAGE SCHEDULE CONVERSION, AND AFTER AN EMPLOYEE HAD EXPRESSED HIS
DISSATISFACTION WITH THE NEW WAGE SCHEDULE, A REPRESENTATIVE OF THE
ACTIVITY RESPONDED THAT THE EMPLOYEE COULD QUIT IF HE DID NOT LIKE HIS
JOB. THE ASSISTANT SECRETARY FOUND THAT THIS ISOLATED STATEMENT DID NOT
CONSTITUTE A VIOLATION OF ANY EMPLOYEE RIGHTS ASSURED BY THE ORDER.
IN YOUR PETITION FOR REVIEW, YOU CONTEND THAT THE DECISION OF THE
ASSISTANT SECRETARY WAS ARBITRARY AND CAPRICIOUS IN THAT HE DISREGARDED
THE "COERCIVE, RESTRAINING AND INTERFERING EFFECT" OF THE REMARK ON THE
EMPLOYEES, AND ITS "CORROSIVE EFFECT" ON THE RELATIONSHIP BETWEEN THE
EMPLOYEES AND THEIR LABOR ORGANIZATION AS WELL.
IN THE OPINION OF THE COUNCIL, THE ASSISTANT SECRETARY'S
DETERMINATION IN THE INSTANT CASE DOES NOT APPEAR TO BE WITHOUT
REASONABLE JUSTIFICATION OR IN ANY OTHER MANNER ARBITRARY AND
CAPRICIOUS. IN ADDITION, YOU HAVE NEITHER ALLEGED NOR DOES IT OTHERWISE
APPEAR THAT A MAJOR POLICY ISSUE IS PRESENTED. CONSEQUENTLY, YOUR
APPEAL FAILS TO MEET THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION
2411.12 OF THE COUNCIL'S RULES OF PROCEDURE, AND REVIEW OF YOUR APPEAL
IS HEREBY DENIED.
BY THE COUNCIL.
CC: A/SLMR, DEPT. OF LABOR
P. J. BURNSKY, MTD, AFL-CIO
A. DI PASQUALE, NAVY
3 FLRC 371; FLRC NO. 74A-96; JUNE 10, 1975.
MS. JANET COOPER, STAFF ATTORNEY
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES
1737 H STREET, NW.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 74A-96
DEPARTMENT OF AGRICULTURE, OFFICE OF AUTOMATED DATA SYSTEMS, ST.
LOUIS, MISSOURI AND KANSAS CITY, MISSOURI, A/SLMR NO. 458. THE
ASSISTANT SECRETARY DENIED THE RESPECTIVE REPRESENTATION PETITIONS FILED
BY NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1633 (NFFE) AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3354. NFFE
APPEALED TO THE COUNCIL, CONTENDING THAT THE ASSISTANT SECRETARY'S
DECISION IS ARBITRARY AND CAPRICIOUS AND PRESENTS MAJOR POLICY ISSUES.
COUNCIL ACTION (JUNE 10, 1975). THE COUNCIL HELD THAT THE ASSISTANT
SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY AND CAPRICIOUS AND DOES
NOT PRESENT A MAJOR POLICY ISSUE. ACCORDINGLY, THE COUNCIL DENIED
REVIEW OF THE UNION'S APPEAL SINCE IT FAILED TO MEET THE REQUIREMENTS
PROVIDED UNDER SECTION 2411.12 OF THE COUNCIL'S RULES OF PROCEDURE (5
CFR 2411.12).
DEAR MS. COOPER:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1633 (NFFE)
SOUGHT AN ELECTION IN A UNIT OF ALL EMPLOYEES EMPLOYED BY THE DEPARTMENT
OF AGRICULTURE, OFFICE OF AUTOMATED DATA SYSTEMS (ADS), KANSAS CITY,
MISSOURI. THE ASSISTANT SECRETARY FOUND THAT THE EVIDENCE ADDUCED
DURING THE FIRST HEARING DID NOT PROVIDE A SUFFICIENT BASIS UPON WHICH A
DECISION COULD BE MADE REGARDING THE APPROPRIATENESS OF THE CLAIMED UNIT
AND THEREFORE REMANDED THE CASE TO THE ASSISTANT REGIONAL DIRECTOR TO
SECURE ADDITIONAL EVIDENCE. /1/ A SUBSEQUENT HEARING TO OBTAIN EVIDENCE
WAS HELD, IN WHICH NFFE'S CASE WAS CONSOLIDATED WITH THAT OF AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3354, WHICH SOUGHT AN
ELECTION IN A UNIT OF ALL EMPLOYEES EMPLOYED BY THE DEPARTMENT OF
AGRICULTURE, OFFICE OF AUTOMATED DATA SYSTEMS, ST. LOUIS, MISSOURI. THE
ACTIVITIES CONTEND THAT THE PETITIONED-FOR UNITS ARE INAPPROPRIATE AND
THAT THE ONLY APPROPRIATE UNIT WOULD BE ONE WHICH INCLUDES ALL ELIGIBLE
EMPLOYEES OF ALL OF THE ADS COMPUTER CENTERS THROUGHOUT THE COUNTRY.
THE ASSISTANT SECRETARY DETERMINED THAT: (1) ALL OF THE CENTERS OPERATE
UNDER THE CENTRALIZED CONTROL OF THE ADS DIRECTOR AND ASSISTANT
DIRECTOR; (2) THE OPERATIONS OF THE COMPUTER CENTERS ARE HIGHLY
INTEGRATED, AND THERE IS SUBSTANTIAL INTERCHANGE AND CONTACT BETWEEN THE
EMPLOYEES OF THE CENTERS; (3) THE WORK, SKILLS, TRAINING AND EDUCATION
OF THE ADS EMPLOYEES IN ALL OF THE COMPUTER CENTERS ARE SIMILAR; AND
(4) ALL CENTER EMPLOYEES OPERATE UNDER THE SAME UNIFORM PERSONNEL
PROCEDURES SET UP BY THE ADS PERSONNEL OFFICE WHICH HAS FINAL AUTHORITY
IN ALL PERSONNEL MATTERS. THEREFORE, HE CONCLUDED, NEITHER OF THE UNIS
IS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BECAUSE IN EACH
CENTER THE CLAIMED EMPLOYEES DO NOT POSSESS A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST SEPARATE AND APART FROM THE OTHER EMPLOYEES OF THE
ADS COMPUTER CENTERS. MOREOVER, SUCH UNITS, IF ESTABLISHED, WOULD
ARTIFICIALLY FRAGMENT THE ADS AND WOULD NOT PROMOTE EFFECTIVE DEALINGS
AND EFFICIENCY OF AGENCY OPERATIONS. THEREFORE, THE ASSISTANT SECRETARY
DISMISSED THE PETITIONS.
IN YOUR PETITION FOR REVIEW, YOU ALLEGE THAT THE ASSISTANT
SECRETARY'S FINDINGS ARE ARBITRARY AND CAPRICIOUS BECAUSE, IN SUMMARY,
THEY ARE CONTRARY TO THE WEIGHT OF THE EVIDENCE PRESENTED AND CONTRARY
TO PAST PRECEDENTS; AND THAT THE DECISION TO REMAND THE CASE AFTER THE
FIRST HEARING WAS UNWARRANTED. FURTHER, YOU CONTEND THAT THE DECISION
PRESENTS MAJOR POLICY ISSUES CONCERNING WHETHER THE ASSISTANT SECRETARY
IS REQUIRED TO: FOLLOW HIS PREVIOUS DECISIONS; ENFORCE 18 U.S.C. 1001
/2/ IN CONNECTION WITH HEARINGS HELD UNDER HIS AUSPICES; CONSIDER
PROCEDURAL MOTIONS TO DISMISS; DECIDE WHETHER THE PETITIONED-FOR UNIT
IS APPROPRIATE AND NOT WHICH OF SEVERAL POSSIBLE UNITS IS APPROPRIATE;
DECLARE APPROPRIATENESS BASED ON EVIDENCE PRESENTED AT THE TIME OF THE
PETITION, NOT ON EVIDENCE PRESENTED AT A SUBSEQUENT HEARING.
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW OF THE ASSISTANT
SECRETARY'S DECISION DOES NOT MEET THE REQUIREMENTS OF SECTION 2411.12
OF THE COUNCIL'S RULES; THAT IS, HIS FINDINGS AND DECISION DO NOT
APPEAR IN ANY MANNER ARBITRARY AND CAPRICIOUS NOR DO THEY PRESENT A
MAJOR POLICY ISSUE. WITH REGARD TO YOUR CONTENTIONS CONCERNING THE
EVIDENCE AND PAST PRECEDENTS CONSIDERED AND RELIED ON, IT DOES NOT
APPEAR THAT THE ASSISTANT SECRETARY ACTED WITHOUT REASONABLE
JUSTIFICATION IN REACHING HIS DECISION THAT THE PETITIONED-FOR UNITS ARE
INAPPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION, IN THAT THE
DECISION IS BASED UPON ESTABLISHED PRINCIPLES REFLECTED IN HIS PREVIOUS
PUBLISHED DECISIONS AND UPON THE RECORD IN THE CASE.
WITH REGARD TO YOUR CONTENTION CONCERNING THE ASSISTANT SECRETARY'S
OBLIGATION TO ADDRESS HIMSELF TO THE UNION'S MOTION THAT ALLEGED A
VIOLATION OF 18 U.S.C. 1001 BY A WITNESS, AND TO CONSIDER THE UNION'S
PROCEDURAL MOTIONS TO DISMISS BEFORE CONSIDERING THE MERITS OF THE CASE,
AS THE ASSISTANT SECRETARY DID CONSIDER SUCH MOTIONS BY DENYING THEM
"NOTING THE DISPOSITION" OF THE CASE AND AS YOUR PETITION DOES NOT
SUPPORT THE CONTENTION THAT THE ASSISTANT SECRETARY FAILED TO CARRY OUT
ANY OF THE DUTIES WHICH HE MAY HAVE WITH RESPECT TO 18 U.S.C. 1001, NO
MAJOR POLICY ISSUE IS PRESENT WITH RESPECT TO THESE CONTENTIONS. AS TO
THE ALLEGED MAJOR POLICY ISSUE CONCERNING THE RESPONSIBILITY OF THE
ASSISTANT SECRETARY IN A UNIT DETERMINATION CASE, SUCH ISSUE IS NOT
PRESENTED BY THIS DECISION HEREIN, BECAUSE HE DID NOT DETERMINE WHICH
ONE OF SEVERAL POSSIBLE UNITS WAS APPROPRIATE FOR SUCH RECOGNITION BUT,
PURSUANT TO HIS AUTHORITY UNDER SECTION 6(A) OF THE ORDER TO DECIDE
QUESTIONS AS TO THE APPROPRIATE UNIT FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION, HE DECIDED THAT THE PETITIONED-FOR UNITS WERE
INAPPROPRIATE. FINALLY, AS TO YOUR CONTENTIONS CONCERNING WHAT EVIDENCE
THE ASSISTANT SECRETARY MAY CONSIDER IN DETERMINING APPROPRIATE UNIT
QUESTIONS, IN THE COUNCIL'S VIEW THE ASSISTANT SECRETARY'S CONSIDERATION
OF EVIDENCE SUBMITTED DURING THE COURSE OF INVESTIGATION OF A
REPRESENTATION PETITION, AT A HEARING, OR A REMANDED HEARING, PURSUANT
TO REGULATIONS ISSUED BY HIM TO IMPLEMENT HIS FUNCTIONS UNDER THE ORDER
DOES NOT RAISE A MAJOR POLICY ISSUE WARRANTING REVIEW.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS AND DOES NOT PRESENT A MAJOR POLICY ISSUE, YOUR APPEAL
FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED UNDER SECTION
2411.12 OF THE COUNCIL'S RULES OF PROCEDURE. ACCORDINGLY, REVIEW OF
YOUR APPEAL IS HEREBY DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
J. TACCINO
AGRICULTURE
P. KOLLENBERG
AFGE
/1/ DEPARTMENT OF AGRICULTURE, OFFICE OF INFORMATION SYSTEMS, KANSAS
CITY, MISSOURI, A/SLMR NO. 387 (MAY 10, 1974).
/2/ 18 U.S.C. 1001 (1970 ED.) PROVIDES:
WHOEVER, IN ANY MATTER WITHIN THE JURISDICTION OF ANY DEPARTMENT OR
AGENCY OF THE UNITED
STATES KNOWINGLY AND WILLFULLY FALSIFIES, CONCEALS OR COVERS UP BY
ANY TRICK, SCHEME, OR
DEVICE A MATERIAL FACT, OR MAKES ANY FALSE, FICTITIOUS OR FRAUDULENT
STATEMENTS OR
REPRESENTATIONS, OR MAKES OR USES ANY FALSE WRITING OR DOCUMENT
KNOWING THE SAME TO CONTAIN
ANY FALSE, FICTITIOUS OR FRAUDULENT STATEMENT OR ENTRY, SHALL BE
FINED NO MORE THAN $10,000 OR
IMPRISONED NOT MORE THAN FIVE YEARS, OR BOTH.
3 FLRC 367; FLRC NO. 74A-94; JUNE 10, 1975.
MR. PHILLIP R. KETE, PRESIDENT
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2677,
NATIONAL COUNCIL OF OEO LOCALS
1200 19TH STREET, NW.
WASHINGTON, D.C. 20506
(SYNOPSIS) FLRC NO. 74A-94
OFFICE OF ECONOMIC OPPORTUNITY, WASHINGTON, D.C. AND AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2677, NATIONAL
COUNCIL OF OEO LOCALS, ASSISTANT SECRETARY CASE NO. 22-5368 (AP). THE
ASSISTANT SECRETARY UPHELD THE DISMISSAL BY THE ASSISTANT REGIONAL
DIRECTOR OF THE AGENCY'S APPLICATION FOR A DECISION ON GRIEVABILITY OR
ARBITRABILITY, BECAUSE THE ISSUE INVOLVED WENT TO THE ENFORCEMENT OF A
PRIOR ARBITRATION AWARD, WHICH WAS A MATTER OUTSIDE THE ASSISTANT
SECRETARY'S AUTHORITY UNDER SECTION 13 OF THE ORDER. THE UNION APPEALED
TO THE COUNCIL, CONTENDING THAT THE ASSISTANT SECRETARY'S DECISION IS
ARBITRARY AND CAPRICIOUS AND PRESENTS A MAJOR POLICY ISSUE.
COUNCIL ACTION (JUNE 10, 1975). THE COUNCIL HELD THAT THE ASSISTANT
SECRETARY'S DECISION DOES NOT PRESENT A MAJOR POLICY ISSUE AND DOES NOT
APPEAR TO BE ARBITRARY AND CAPRICIOUS, AND THAT THE UNION'S APPEAL
THEREFORE FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS SET FORTH IN
SECTION 2411.12 OF THE COUNCIL'S RULES OF PROCEDURE (5 CFR 2411.12).
ACCORDINGLY, THE COUNCIL DENIED THE UNION'S PETITION FOR REVIEW. (THE
UNION'S REQUEST FOR A STAY OF THE ASSISTANT SECRETARY'S DECISION WAS
PREVIOUSLY DENIED BY THE COUNCIL UNDER SECTION 2411.47(C) OF THE
COUNCIL'S RULES (5 CFR 2411.47(C)).
DEAR MR. KETE:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
THIS CASE AROSE WHEN THE OFFICE OF ECONOMIC OPPORTUNITY FILED AN
APPLICATION FOR A DECISION ON GRIEVABILITY OR ARBITRABILITY. ACCORDING
TO THE FINDINGS OF THE ASSISTANT REGIONAL DIRECTOR, THE QUESTION SOUGHT
TO BE ARBITRATED WAS: "MAY THE AGENCY IMPLEMENT AN ARBITRATOR'S AWARD
WHICH IT QUESTIONS AS TO ITS LEGALITY?" THE ASSISTANT REGIONAL DIRECTOR
FOUND THAT THE UNION, IN FILING THE GRIEVANCE WHICH GAVE RISE TO THIS
ARBITRABILITY DISPUTE, ALLEGED THAT THE AGENCY HAD FAILED TO COMPLY WITH
A PRIOR ARBITRATION AWARD. THE AGENCY RESPONDED THAT IT WOULD BE
"INAPPROPRIATE" TO ADDRESS THE ISSUE PRESENTED BY THE GRIEVANCE UNTIL A
RULING ON THE LEGALITY OF IMPLEMENTING THE PRIOR AWARD HAD BEEN RECEIVED
FROM THE COMPTROLLER GENERAL OF THE UNITED STATES.
THE ASSISTANT SECRETARY FOUND THAT THE ISSUE RAISED BY THE AGENCY'S
APPLICATION FOR DECISION ON GRIEVABILITY OR ARBITRABILITY "IS NOT
WHETHER A GRIEVANCE IS ARBITRABLE UNDER A NEGOTIATED AGREEMENT, BUT,
RATHER, GOES TO THE ENFORCEMENT OF A PRIOR ARBITRATION AWARD." HAVING SO
FOUND, THE ASSISTANT SECRETARY STATED, " . . . (I)N MY VIEW, THE
ENFORCEMENT OF A PRIOR ARBITRATION AWARD DOES NOT COME WITHIN THE
ASSISTANT SECRETARY'S AUTHORITY UNDER SECTION 13 OF THE ORDER.
SIMILARLY, THERE IS NO AUTHORITY GRANTED IN SECTION 13 WHICH WOULD
ENABLE THE ASSISTANT SECRETARY TO ENFORCE DISCIPLINARY ACTION FOR
NONCOMPLIANCE WITH AN ARBITRATOR'S AWARD." ACCORDINGLY, THE ASSISTANT
SECRETARY DENIED THE UNION'S REQUEST FOR REVIEW OF THE ASSISTANT
REGIONAL DIRECTOR'S REPORT AND FINDINGS ON GRIEVABILITY OR
ARBITRABILITY.
IN YOUR PETITION FOR REVIEW, YOU CONTEND, IN ESSENCE, THAT THE
RELIANCE OF THE ASSISTANT SECRETARY " . . . ON A QUESTION OF HIS OWN
AUTHORITY TO ENFORCE ARBITRATION AWARDS OR ENFORCE DISCIPLINARY ACTION
FOR NONCOMPLIANCE WITH AN ARBITRATOR'S AWARD RAISES A MAJOR POLICY ISSUE
AND IS ARBITRARY AND CAPRICIOUS." YOU ALLEGE THAT THE ASSISTANT
SECRETARY MISPERCEIVED BOTH THE ISSUE AND HIS OWN ROLE BY CONCERNING
HIMSELF WITH HIS AUTHORITY TO ENFORCE ARBITRATION AWARDS OR TO ORDER
DISCIPLINARY ACTION FOR NON-COMPLIANCE THEREWITH. MOREOVER, YOU CONTEND
THAT "(T)HE FINDING BY THE ASSISTANT SECRETARY THAT A DISPUTE OVER
COMPLIANCE WITH AN ARBITRATION AWARD IS NOT A DISPUTE OVER THE
INTERPRETATION OR APPLICATION OF THE NATIONAL AFGE-OEO CONTRACT WITHIN
THE MEANING OF SECTION 13(B) OF EXECUTIVE ORDER 11491 RAISES A MAJOR
POLICY ISSUE . . . "
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW DOES NOT MEET THE
COUNCIL'S RULES GOVERNING REVIEW. THAT IS, BASED UPON THE CONTENTIONS
DESCRIBED ABOVE, THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR
ARBITRARY AND CAPRICIOUS AND DOES NOT PRESENT MAJOR POLICY ISSUES. WITH
REGARD TO YOUR CONTENTION THAT THE DECISION OF THE ASSISTANT SECRETARY
IS ARBITRARY AND CAPRICIOUS, THE FINDINGS AND DECISION OF THE ASSISTANT
SECRETARY, NAMELY, THAT THE ISSUE RAISED BY THIS CASE IS NOT ONE OF
ARBITRABILITY BUT GOES INSTEAD TO THE ENFORCEMENT OF A PRIOR ARBITRATION
AWARD, DO NOT APPEAR TO BE WITHOUT REASONABLE JUSTIFICATION IN THE
CIRCUMSTANCES OF THIS CASE. WITH REGARD TO THE ALLEGED MAJOR POLICY
ISSUES CONCERNING "COMPLIANCE WITH AN ARBITRATION AWARD," IN DEPARTMENT
OF THE ARMY, ABERDEEN PROVING GROUND AND INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS, LOCAL 2424, A/SLMR NO. 412, FLRC NO.
74A-46 (MARCH 20, 1975), REPORT NO. 67, THE COUNCIL STATED:
. . . (W)HERE DISPUTES ARISE CONCERNING THE ALLEGED FAILURE OF A
PARTY TO ABIDE BY AN
ARBITRATION AWARD, SUCH DISPUTES MAY INVOLVE FACTUAL QUESTIONS WHICH
MUST BE RESOLVED IN ORDER
TO DETERMINE WHETHER OR NOT AN AWARD HAS BEEN IMPLEMENTED. SUCH
DISPUTED ISSUES OF FACT,
FREQUENTLY ENTAILING CREDIBILITY DETERMINATIONS, ARE BEST RESOLVED
THROUGH A HEARING AS
PROVIDED UNDER THE UNFAIR LABOR PRACTICE PROCEDURES OF THE ASSISTANT
SECRETARY. FOR THIS
REASON COMPLAINTS CONCERNING THE ALLEGED FAILURE OF A PARTY TO ABIDE
BY AN ARBITRATION AWARD,
WHERE THAT PARTY HAS NOT FILED WITH THE COUNCIL A PETITION FOR REVIEW
OF THE AWARD UNDER THE
COUNCIL'S RULES OF PROCEDURE, CAN AND SHOULD BE RESOLVED BY THE
ASSISTANT SECRETARY UNDER HIS
AUTHORITY IN SECTION 6(A)(4) TO DECIDE THE UNFAIR LABOR PRACTICE
COMPLAINTS SPECIFIED IN
SECTION 19 OF THE ORDER. THE COUNCIL IS OF THE OPINION THAT THESE
PROCEDURES, AS REFLECTED IN
THE RULES, ARE CONSISTENT WITH AN IMPLEMENTIVE OF THE LANGUAGE AND
PURPOSES OF THE ORDER.
THEREFORE, THE COUNCIL HOLDS THAT THE ASSISTANT SECRETARY OF LABOR
HAS THE AUTHORITY UNDER
SECTIONS 6(A)(4) AND 19 OF THE ORDER TO DECIDE UNFAIR LABOR PRACTICE
COMPLAINTS WHICH ALLEGE
THAT A PARTY HAS REFUSED TO COMPLY WITH AN ARBITRATION AWARD ISSUED
UNDER A GRIEVANCE
PROCEDURE CONTAINED IN AN AGREEMENT NEGOTIATED UNDER THE ORDER. SUCH
AUTHORITY OBTAINS: (1)
IF THE PARTY HAS FAILED TO FILE WITH THE COUNCIL A PETITION FOR
REVIEW OF THE AWARD UNDER THE
COUNCIL'S RULES OF PROCEDURE, OR (2) IF SUCH APPEAL WAS FILED BY THE
COUNCIL REJECTED
ACCEPTANCE OF THE APPEAL OR ISSUED A DECISION UPHOLDING THE AWARD.
THE COUNCIL RECOGNIZES
THAT THIS METHOD FOR SEEKING ENFORCEMENT OF ARBITRATION AWARDS MAY
REQUIRE THE INITIATION OF
SEPARATE PROCEEDINGS UNDER THE ORDER. THEREFORE, THE COUNCIL
BELIEVES IT WOULD BE APPROPRIATE
FOR THE ASSISTANT SECRETARY TO EXPEDITE THE PROCESSING OF UNFAIR
LABOR PRACTICE CASES WHICH
PERTAIN TO THE ENFORCEMENT OF ARBITRATION AWARDS. FURTHERMORE, THE
COUNCIL ITSELF WILL
EXPEDITE THE PROCESSING OF ANY APPEALS WHICH IT MIGHT RECEIVE FROM
DECISIONS OF THE ASSISTANT
SECRETARY IN SUCH CASES. (FOOTNOTE OMITTED.)
BASED ON THESE CONSIDERATIONS, THE COUNCIL IS OF THE OPINION THAT THE
DECISION OF THE ASSISTANT SECRETARY, FINDING, IN ESSENCE, THAT MATTERS
REGARDING COMPLIANCE WITH AN ARBITRATION AWARD ARE NOT WITHIN HIS
AUTHORITY UNDER SECTION 13 OF THE ORDER, DOES NOT RAISE A MAJOR POLICY
ISSUE WARRANTING REVIEW.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT PRESENT A MAJOR
POLICY ISSUE AND DOES NOT APPEAR TO BE ARBITRARY AND CAPRICIOUS, YOUR
APPEAL FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS SET FORTH IN SECTION
2411.12 OF THE COUNCIL'S RULES OF PROCEDURE. ACCORDINGLY, YOUR PETITION
FOR REVIEW OF THIS DECISION IS HEREBY DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
P. M. WEIGHTMAN
OEO
3 FLRC 352; FLRC NO. 74A-24; JUNE 10, 1975.
BUREAU OF PRISONS AND FEDERAL PRISON
INDUSTRIES, INC., WASHINGTON, DC
AND
COUNCIL OF PRISON LOCALS, AFGE
(SYNOPSIS) FLRC NO. 74A-24
BUREAU OF PRISONS AND FEDERAL PRISON INDUSTRIES, INC., WASHINGTON, DC
AND COUNCIL OF PRISON LOCALS, AFGE, 73 FSIP 27. THE DISPUTE IN THIS
CASE CONCERNED THE NEGOTIABILITY UNDER THE ORDER OF A PROPOSAL MADE BY
THE UNION THAT: "THE EMPLOYER AGREES THAT THOSE POLICIES AND
REGULATIONS IN SECTION A OF THE ARTICLE (ESSENTIALLY INCORPORATING
SECTION 12(A) OF THE ORDER), WHICH AFFECT WORKING CONDITIONS OF
EMPLOYEES IN THE UNIT, SHALL BE APPLIED FAIRLY AND EQUITABLY INSOFAR AS
THEY ARE WITHIN THE EMPLOYER'S DISCRETION." THE NEGOTIABILITY ISSUE WAS
REFERRED TO THE COUNCIL BY THE FEDERAL SERVICE IMPASSES PANEL, PURSUANT
TO SECTION 2411.26 OF THE COUNCIL'S RULES OF PROCEDURE (5 CFR 2411.26)
AND THE RELATED SECTION OF THE PANEL'S RULES OF PROCEDURE.
COUNCIL ACTION (JUNE 10, 1975). THE COUNCIL HELD THAT THE UNION'S
PROPOSAL IS NEGOTIABLE UNDER SECTION 11(A) OF THE ORDER. ACCORDINGLY,
THE COUNCIL SET ASIDE THE AGENCY HEAD'S DETERMINATION OF
NONNEGOTIABILITY.
DURING CONSIDERATION BY THE FEDERAL SERVICE IMPASSES PANEL OF A
NEGOTIATION IMPASSE BETWEEN THE BUREAU OF PRISONS AND FEDERAL PRISON
INDUSTRIES, INC., OF THE DEPARTMENT OF JUSTICE (THE AGENCY) AND THE
COUNCIL OF PRISON LOCALS OF THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES (THE UNION), THE UNION REQUESTED THAT THE PANEL REFER A
NEGOTIABILITY ISSUE TO THE COUNCIL FOR DECISION. THE NEGOTIABILITY
ISSUE INVOLVED A PROPOSAL MADE BY THE UNION THAT SECTION B OF ARTICLE 4
(GOVERNING REGULATIONS) WOULD PROVIDE:
THE EMPLOYER AGREES THAT THOSE POLICIES AND REGULATIONS IN SECTION A
OF THE ARTICLE, WHICH
AFFECT WORKING CONDITIONS OF EMPLOYEES IN THE UNIT, SHALL BE APPLIED
FAIRLY AND EQUITABLY
INSOFAR AS THEY ARE WITHIN THE EMPLOYER'S DISCRETION.
THE REFERENCED SECTION A /1/ STATES:
IN THE ADMINISTRATION OF ALL MATTERS COVERED BY THIS AGREEMENT AND
SUBSEQUENT SUPPLEMENTARY
AGREEMENTS, OFFICIALS AND EMPLOYEES ARE GOVERNED BY EXISTING OR
FUTURE LAWS AND THE
REGULATIONS OF APPROPRIATE AUTHORITIES, INCLUDING POLICIES SET FORTH
IN THE FEDERAL PERSONNEL
MANUAL; BY PUBLISHED AGENCY POLICIES AND REGULATIONS IN EXISTENCE AT
THE TIME THE AGREEMENT
WAS APPROVED; AND BY SUBSEQUENTLY PUBLISHED AGENCY POLICIES AND
REGULATIONS REQUIRED BY LAW
OR BY THE REGULATIONS OF APPROPRIATE AUTHORITIES, OR AUTHORIZED BY
THE TERMS OF A CONTROLLING
AGREEMENT AT A HIGHER AGENCY LEVEL.
A DISAGREEMENT AROSE BETWEEN THE AGENCY AND THE UNION AS TO THE
NEGOTIABILITY OF THE UNION'S PROPOSAL AND THE UNION REFERRED THE ISSUE
FOR DETERMINATION TO THE AGENCY HEAD. THE AGENCY HEAD RULED THAT THE
UNION'S PROPOSAL WAS NONNEGOTIABLE /2/ ON THE GROUNDS THAT IT WOULD
VIOLATE SECTION 13(A) /3/ AND VIOLATE SECTIONS 11(B) AND 12(B) OF E.O.
11491, AS AMENDED BY E.O. 11616.
UNDER THESE CIRCUMSTANCES, THE PANEL REFERRED THE NEGOTIABILITY ISSUE
TO THE COUNCIL FOR DECISION PURSUANT TO SECTION 2411.26 OF THE COUNCIL'S
RULES OF PROCEDURE /4/ AND THE RELATED SECTION OF THE PANEL'S RULES OF
PROCEDURE.
GENERAL REVIEW OF THE FEDERAL LABOR-MANAGEMENT RELATIONS PROGRAM
AT THE TIME OF THE PANEL'S REFERRAL OF THE NEGOTIABILITY ISSUE, THE
COUNCIL WAS CONDUCTING, PURSUANT TO SECTION 4(B) OF THE ORDER, A GENERAL
REVIEW OF THE FEDERAL LABOR-MANAGEMENT RELATIONS PROGRAM. IN CONNECTION
WITH THE GENERAL REVIEW, THE COUNCIL WAS CONSIDERING, INTER ALIA, THE
FOLLOWING QUESTIONS WHICH HAD DIRECT APPLICATION TO THE NEGOTIABILITY
ISSUE HEREIN:
-- DOES THE MEANING AND SCOPE OF SECTION 13 NEED AMPLIFICATION?
-- SHOULD SECTION 13 BE REVISED TO:
A. EXCLUDE FROM THE NEGOTIATED GRIEVANCE PROCEDURE GRIEVANCES OVER
AGENCY REGULATIONS--
EVEN IF REGULATIONS ARE REFERENCED OR CITED IN THE AGREEMENT?-- OR
B. PROVIDE THAT THE NEGOTIATED GRIEVANCE PROCEDURE IS THE SOLE
PROCEDURE AVAILABLE FOR ALL
GRIEVANCES FILED BY OR ON BEHALF OF UNIT EMPLOYEES THEREBY INCLUDING
GRIEVANCES OVER AGENCY
REGULATIONS AND POLICIES NOT CONTAINED IN THE AGREEMENT AND EXCLUDING
ONLY THOSE ISSUES
SUBJECT TO STATUTORY APPEAL PROCEDURES?-- OR
C. PERMIT NEGOTIATION ON SCOPE OF GRIEVANCE PROCEDURE, WITH
STATUTORY APPEAL PROCEDURES AS
THE SOLE MANDATORY EXCLUSION? /5/
THE COUNCIL DETERMINED THAT FINAL DISPOSITION OF THIS CASE SHOULD BE
DEFERRED PENDING COMPLETION OF THE GENERAL REVIEW.
ON FEBRUARY 6, 1975, E.O. 11838 WAS ISSUED (40 F.R. 5743, FEBRUARY 7,
1975) AMENDING E.O. 11491. SECTION 13(A) AND (B) OF THE ORDER NOW
PROVIDES:
SEC. 13. GRIEVANCE AND ARBITRATION PROCEDURES.
(A) AN AGREEMENT BETWEEN AN AGENCY AND A LABOR ORGANIZATION SHALL
PROVIDE A PROCEDURE,
APPLICABLE ONLY TO THE UNIT, FOR THE CONSIDERATION OF GRIEVANCES.
THE COVERAGE AND SCOPE OF
THE PROCEDURE SHALL BE NEGOTIATED BY THE PARTIES TO THE AGREEMENT
WITH THE EXCEPTION THAT IT
MAY NOT COVER MATTERS FOR WHICH A STATUTORY APPEAL PROCEDURE EXISTS
AND SO LONG AS IT DOES NOT
OTHERWISE CONFLICT WITH STATUTE OR THIS ORDER. IT SHALL BE THE
EXCLUSIVE PROCEDURE AVAILABLE
TO THE PARTIES AND THE EMPLOYEES IN THE UNIT FOR RESOLVING GRIEVANCES
WHICH FALL WITHIN ITS
COVERAGE. HOWEVER, ANY EMPLOYEE OR GROUP OF EMPLOYEES IN THE UNIT
MAY PRESENT SUCH GRIEVANCES
TO THE AGENCY AND HAVE THEM ADJUSTED, WITHOUT THE INTERVENTION OF THE
EXCLUSIVE
REPRESENTATIVE, AS LONG AS THE ADJUSTMENT IS NOT INCONSISTENT WITH
THE TERMS OF THE AGREEMENT
AND THE EXCLUSIVE REPRESENTATIVE HAS BEEN GIVEN OPPORTUNITY TO BE
PRESENT AT THE ADJUSTMENT.
(B) A NEGOTIATED PROCEDURE MAY PROVIDE FOR ARBITRATION OF GRIEVANCES.
ARBITRATION MAY BE
INVOKED ONLY BY THE AGENCY OR THE EXCLUSIVE REPRESENTATIVE. EITHER
PARTY MAY FILE EXCEPTIONS
TO AN ARBITRATOR'S AWARD WITH THE COUNCIL, UNDER REGULATIONS
PRESCRIBED BY THE COUNCIL.
IN EXPLANATION OF THE RECOMMENDATION WHICH LED TO THIS AMENDMENT, THE
COUNCIL STATED IN PERTINENT PART: /6/
THE COUNCIL CONSIDERED (DURING ITS GENERAL REVIEW) THREE MAJOR
PROPOSALS REGARDING THE
NATURE AND SCOPE OF NEGOTIATED GRIEVANCE PROCEDURES: (1) REVISE
SECTION 13 TO EXCLUDE FROM
THE NEGOTIATED GRIEVANCE PROCEDURE GRIEVANCES OVER AGENCY REGULATIONS
EVEN IF THOSE
REGULATIONS ARE REFERENCED OR CITED IN THE AGREEMENT. (2) REVISE
SECTION 13 TO REQUIRE THE
NEGOTIATED GRIEVANCE PROCEDURE TO BE THE SOLE PROCEDURE AVAILABLE FOR
ALL GRIEVANCES,
INCLUDING GRIEVANCES OVER AGENCY POLICIES AND REGULATIONS NOT
CONTAINED IN THE AGREEMENT, AND
EXCLUDING ONLY THOSE ISSUES SUBJECT TO STATUTORY APPEAL PROCEDURES.
(3) REVISE SECTION 13 TO
PERMIT NEGOTIATION ON THE SCOPE OF THE GRIEVANCE PROCEDURE WITH
STATUTORY APPEAL PROCEDURES AS
THE SOLE MANDATORY EXCLUSION. WE CONCLUDED THAT THE FIRST PROPOSAL
WOULD BE A REVERSAL OF THE
BASIC POLICY REFLECTED IN THE CURRENT PROVISIONS OF THE ORDER THAT
THE SCOPE OF THE GRIEVANCE
PROCEDURE WAS TO BE NEGOTIATED RATHER THAN PRESCRIBED BY LAW,
REGULATION, OR THE ORDER. WHILE
THE SECOND PROPOSAL HAS DESIRABLE GOALS, WE CONSIDERED THAT IT WOULD
INTERFERE WITH THE
FREEDOM AND VOLUNTARINESS OF THE BILATERAL PROCESS. WE FOUND MERIT
IN THE THIRD PROPOSAL.
THE COUNCIL HAS CONCLUDED THAT THE COVERAGE AND SCOPE OF THE
NEGOTIATED GRIEVANCE PROCEDURE
SHOULD BE DETERMINED BY THE PARTIES THEMSELVES, EXCLUDING ONLY
MATTERS SUBJECT TO STATUTORY
APPEAL PROCEDURES. THIS WOULD PERMIT THE PARTIES TO NEGOTIATE A
GRIEVANCE PROCEDURE WITH
COVERAGE AND SCOPE AS NARROW AS THAT WHICH WOULD BE REQUIRED BY THE
FIRST PROPOSAL, OR AS
BROAD AS THAT WHICH WOULD BE REQUIRED BY THE SECOND PROPOSAL, TO
REVISE SECTION 13. THE
PARTIES COULD AGREE THAT THE NEGOTIATED GRIEVANCE PROCEDURE WOULD BE
THE ONLY PROCEDURE
AVAILABLE FOR ALL GRIEVANCES, INCLUDING GRIEVANCES OVER AGENCY
POLICIES AND REGULATIONS NOT
CONTAINED IN THE AGREEMENT, SUBJECT ONLY TO THE EXPLICIT LIMITATIONS
OF THE ORDER. THE
PARTIES WOULD BE FREE TO EXPAND THE NEGOTIATED GRIEVANCE PROCEDURE TO
COVER ANY MATTERS EXCEPT
THOSE WHICH ARE SUBJECT TO RESOLUTION UNDER STATUTORY APPEAL
PROCEDURES.
AS A RESULT OF ITS FIRST REVIEW OF THE ORDER, THE COUNCIL CONCLUDED
THAT EMPLOYEES WERE
FACED WITH COMPLICATED CHOICES IN SEEKING RELIEF, THE ROLE OF THE
EXCLUSIVE LABOR ORGANIZATION
WAS DIMINISHED AND DISTORTED BY PERMITTING A RIVAL ORGANIZATION TO
REPRESENT A GRIEVANT WITH
RESPECT TO THE INTERPRETATION AND APPLICATION OF THE AGREEMENT
NEGOTIATED BY THE EXCLUSIVE
REPRESENTATIVE, AND THE SCOPE OF NEGOTIATION FOR AGENCIES AND LABOR
ORGANIZATIONS WAS
UNNECESSARILY LIMITED. IN ORDER TO REMEDY THOSE FAULTS, THE ORDER
WAS AMENDED TO REQUIRE THAT
THE NEGOTIATED AGREEMENT FOR AN EXCLUSIVE UNIT MUST INCLUDE A
GRIEVANCE PROCEDURE AND TO
PROVIDE THAT THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE AND
ARBITRATION WOULD BE
RESTRICTED TO GRIEVANCES OVER THE INTERPRETATION OR APPLICATION OF
THE AGREEMENT . . .
HOWEVER, THAT PROVISION IN SECTION 13 OF THE ORDER WHICH ESTABLISHES
LIMITATIONS UPON THE
SCOPE AND COVERAGE OF THE NEGOTIATED GRIEVANCE PROCEDURE BY PROVIDING
THAT A "NEGOTIATED
GRIEVANCE PROCEDURE MAY NOT COVER ANY OTHER MATTERS, INCLUDING
MATTERS FOR WHICH STATUTORY
APPEALS PROCEDURES EXIST . . . " HAS CREATED SOME PROBLEMS IN THE
IMPLEMENTATION OF SECTION
13. THOSE MATTERS FOR WHICH STATUTORY APPEAL PROCEDURES EXIST, WHILE
COMPLEX, ARE SUSCEPTIBLE
TO IDENTIFICATION AND DESCRIPTION.
THE MAJOR PROBLEMS WHICH HAVE ARISEN CONCERNING THE IMPLEMENTATION OF
SECTION 13 HAVE
CENTERED ON THE MEANING OF THE PHRASE "ANY OTHER MATTERS." SOME
AGENCIES AND LABOR
ORGANIZATIONS HAVE SOUGHT A PRECISE DELINEATION OF SUCH "MATTERS."
THIS HAS NOT BEEN
POSSIBLE. ONCE MATTERS COVERED BY STATUTORY APPEAL PROCEDURES HAVE
BEEN EXCLUDED FROM THE
COVERAGE OF ALL NEGOTIATED GRIEVANCE PROCEDURES, THOSE REMAINING
"OTHER MATTERS" WHICH ARE
ALSO EXCLUDED VARY FROM UNIT TO UNIT DEPENDING UPON THE SCOPE OF THE
GRIEVANCE PROCEDURE
NEGOTIATED IN EACH UNIT AND BY THE NATURE AND SCOPE OF THE REMAINING
PROVISIONS IN THE
NEGOTIATED AGREEMENT ITSELF. THEREFORE, A GENERAL DEFINITION OF "ANY
OTHER MATTERS" WHICH
WOULD BE UNIFORMLY APPLICABLE THROUGHOUT THE PROGRAM IS NOT POSSIBLE.
THE COUNCIL HAS CAREFULLY CONSIDERED WHETHER THE ORDER SHOULD CONTAIN
ANY SPECIFIC
LIMITATIONS UPON THE SCOPE AND COVERAGE OF NEGOTIATED GRIEVANCE
PROCEDURES OTHER THAN THE
EXCLUSION OF MATTERS COVERED BY STATUTORY APPEAL PROCEDURES. IT HAS
CONCLUDED THAT THE ORDER
SHOULD NOT CONTAIN ANY OTHER SPECIFIC LIMITATIONS. INSTEAD, THE
COVERAGE AND SCOPE OF THE
NEGOTIATED GRIEVANCE PROCEDURE SHOULD BE NEGOTIATED BY THE PARTIES,
SO LONG AS IT DOES NOT
OTHERWISE CONFLICT WITH STATUTE OR THE ORDER, AND MATTERS FOR WHICH
STATUTORY APPEAL
PROCEDURES EXIST SHOULD BE THE SOLE MANDATORY EXCLUSION PRESCRIBED BY
THE ORDER. THIS WILL
GIVE THE PARTIES GREATER FLEXIBILITY AT THE NEGOTIATING TABLE TO
FASHION A NEGOTIATED
GRIEVANCE PROCEDURE WHICH SUITS THEIR PARTICULAR NEEDS. FOR EXAMPLE,
IT WILL PERMIT THEM TO
INCLUDE GRIEVANCES OVER AGENCY REGULATIONS AND POLICIES, WHETHER OR
NOT THE REGULATIONS AND
POLICIES ARE CONTAINED IN THE AGREEMENT, PROVIDED THE GRIEVANCES ARE
NOT OVER MATTERS
OTHERWISE EXCLUDED FROM NEGOTIATIONS BY SECTIONS 11(B) AND 12(B) OF
THE ORDER OR SUBJECT TO
STATUTORY APPEAL PROCEDURES. MOREOVER, IT WILL ELIMINATE THE
PROBLEMS WHICH HAVE ARISEN
CONCERNING THE MEANING OF THE TERM "ANY OTHER MATTERS."
THUS, WITH THIS RECOMMENDED CHANGE IN SECTION 13 OF THE ORDER, THE
PARTIES MAY, THROUGH
PROVISIONS IN THEIR NEGOTIATED AGREEMENT, AGREE TO RESOLVE GRIEVANCES
OVER MATTERS COVERED BY
AGENCY REGULATIONS AND WITHIN THE DISCRETION OF AGENCY MANAGEMENT
THROUGH THEIR NEGOTIATED
GRIEVANCE PROCEDURE. IN FACT, WITH THIS CHANGE, THE PARTIES MAY MAKE
THEIR NEGOTIATED
GRIEVANCE PROCEDURE THE EXCLUSIVE PROCEDURE FOR RESOLVING GRIEVANCE
OF EMPLOYEES IN THE
BARGAINING UNIT OVER AGENCY POLICIES AND REGULATIONS NOT CONTAINED IN
THE AGREEMENT. IF THE
PARTIES SHOULD AGREE TO MAKE THE NEGOTIATED PROCEDURE THE EXCLUSIVE
PROCEDURE, GRIEVANCES OVER
AGENCY POLICY AND REGULATION, TO THE EXTENT COVERED THEREBY, WOULD NO
LONGER BE SUBJECT TO
GRIEVANCE PROCEDURES ESTABLISHED BY AGENCY REGULATIONS. IN THIS
CONNECTION, WE ALSO RECOMMEND
THAT SECTION 7(D)(1) OF THE ORDER BE AMENDED TO REFLECT THE
POSSIBILITY THAT THE NEGOTIATED
GRIEVANCE PROCEDURE MAY REPLACE THE AGENCY GRIEVANCE PROCEDURE TO THE
EXTENT AGREED UPON BY
THE PARTIES.
IN THE COURSE OF THE REVIEW SOME QUESTION WAS RAISED BY AGENCIES
CONCERNING THE
INTERPRETATION AND APPLICATION OF REGULATIONS BY ARBITRATORS IN THE
RESOLUTION OF GRIEVANCES
THROUGH NEGOTIATED GRIEVANCE PROCEDURES. UNDER THE PRESENT SECTION
13 ARBITRATORS OF
NECESSITY NOW CONSIDER THE MEANING OF LAWS AND REGULATIONS, INCLUDING
AGENCY REGULATIONS, IN
RESOLVING GRIEVANCES ARISING UNDER NEGOTIATED AGREEMENTS BECAUSE
PROVISIONS IN SUCH AGREEMENTS
OFTEN DEAL WITH SUBSTANTIVE MATTERS WHICH ARE ALSO DEALT WITH IN LAW
OR REGULATION AND BECAUSE
SECTION 12(A) OF THE ORDER REQUIRES THAT THE ADMINISTRATION OF EACH
NEGOTIATED AGREEMENT BE
SUBJECT TO SUCH LAW AND REGULATION.
UNDER THE PROPOSED AMENDMENTS, THE SCOPE AND COVERAGE OF THE
NEGOTIATED GRIEVANCE PROCEDURE
WOULD BE FULLY NEGOTIABLE SO LONG AS IT DOES NOT OTHERWISE CONFLICT
WITH STATUTE OR THE ORDER,
AND MATTERS FOR WHICH STATUTORY APPEAL PROCEDURES EXIST SHOULD BE THE
SOLE MANDATORY EXCLUSION
PRESCRIBED BY THE ORDER. HOWEVER, NOTHING IN THE PROPOSED AMENDMENTS
OF SECTION 13 WOULD
PREVENT THE PARTIES FROM AGREEING THAT THE AGENCY'S INTERPRETATION OF
ITS REGULATIONS WOULD BE
BINDING.
OF COURSE, FINAL DECISIONS UNDER NEGOTIATED GRIEVANCE PROCEDURES,
INCLUDING FINAL AND
BINDING AWARDS BY ARBITRATORS WHERE THE NEGOTIATED PROCEDURE MAKES
PROVISION FOR SUCH
ARBITRATION, MUST BE CONSISTENT WITH APPLICABLE LAW, APPROPRIATE
REGULATION OR THE
ORDER. THUS, WHERE IT APPEARS, BASED UPON THE FACTS AND
CIRCUMSTANCES DESCRIBED IN A PETITION
BEFORE THE COUNCIL, THAT THERE IS SUPPORT FOR A CONTENTION THAT AN
ARBITRATOR HAS ISSUED AN
AWARD WHICH VIOLATES APPLICABLE LAW, APPROPRIATE REGULATION, OR THE
ORDER, THE COUNCIL, UNDER
ITS RULES, WILL GRANT REVIEW OF THE AWARD. FOR EXAMPLE, SHOULD BE
COUNCIL FIND THAT AN AWARD
VIOLATES THE PROVISIONS OF TITLE 5, UNITED STATES CODE, OR THAT AN
AWARD VIOLATES THE
REGULATIONS OF THE CIVIL SERVICE COMMISSION, OR THAT AN AWARD
VIOLATES SECTION 12(B) OF THE
ORDER, THE COUNCIL WOULD MODIFY OR SET ASIDE THAT AWARD.
THE UNION'S PROPOSAL IN THIS CASE PROVIDES:
ARTICLE 4, SECTION B. THE EMPLOYER AGREES THAT THOSE POLICIES AND
REGULATIONS IN SECTION
(A) OF THE ARTICLE, WHICH AFFECT WORKING CONDITIONS OF EMPLOYEES IN
THE UNIT, SHALL BE APPLIED
FAIRLY AND EQUITABLY INSOFAR AS THEY ARE WITHIN THE EMPLOYER'S
DISCRETION.
THE AGENCY HEAD DETERMINED THAT THE PROPOSAL WAS NONNEGOTIABLE
BECAUSE IT "WOULD PLACE POLICIES, RULES AND REGULATIONS OF THE CIVIL
SERVICE COMMISSION AND THE DEPARTMENT OF JUSTICE UNDER THE NEGOTIATED
GRIEVANCE PROCEDURE EVEN THOUGH THE SUBSTANCE OF SUCH MATTERS IS NOT
EMBODIED IN THE AGREEMENT," THEREBY, "EXTENDING THE SCOPE OF THE
NEGOTIATED GRIEVANCE PROCEDURE TO INCLUDE MATTERS NOT INCORPORATED IN
THE AGREEMENT" AND, HENCE, VIOLATING SECTION 13(A) OF THE ORDER.
FURTHER, THE AGENCY DETERMINED THAT THE PROPOSAL WOULD ALSO VIOLATE
SECTIONS 11(B) AND 12(B) OF THE ORDER BECAUSE IT WOULD SUBJECT CERTAIN
MATTERS WHICH ARE BEYOND THE SCOPE OF COLLECTIVE BARGAINING "TO REVIEW
IN A GRIEVANCE AND ARBITRATION PROCEEDING."
1. SECTION 13(A):
THE AGENCY DETERMINED THAT THE PROPOSAL VIOLATED SECTION 13(A) OF THE
ORDER BECAUSE IT WOULD EXTEND THE SCOPE OF THE NEGOTIATED GRIEVANCE
PROCEDURE TO POLICIES, RULES AND REGULATIONS OF THE CIVIL SERVICE
COMMISSION AND THE DEPARTMENT OF JUSTICE EVEN THOUGH THE SUBSTANCE OF
SUCH MATTERS WAS NOT INCORPORATED IN THE AGREEMENT. WE DO NOT AGREE
WITH THIS DETERMINATION.
AT THE TIME THE AGENCY MADE ITS DETERMINATION, SECTION 13(A)
PROVIDED, IN RELEVANT PART, THAT: "AN AGREEMENT BETWEEN AN AGENCY AND A
LABOR ORGANIZATION SHALL PROVIDE A PROCEDURE, APPLICABLE ONLY TO THE
UNIT, FOR THE CONSIDERATION OF GRIEVANCES OVER THE INTERPRETATION OR
APPLICATION OF THE AGREEMENT." WHILE IT MIGHT PROPERLY HAVE BEEN
CONTENDED THAT A PROPOSAL WHICH WOULD SUBJECT THE INTERPRETATION OR
APPLICATION OF POLICIES AND REGULATIONS TO A NEGOTIATED GRIEVANCE
PROCEDURE EVEN THOUGH THE SUBSTANCE OF SUCH POLICIES AND REGULATIONS IS
NOT INCORPORATED IN THE AGREEMENT WAS NONNEGOTIABLE UNDER THIS PROVISION
OF SECTION 13(A), THE RECENT AMENDMENTS TO THE ORDER RENDER SUCH
ARGUMENT MOOT.
SECTION 13(A) NOW PROVIDES, IN PERTINENT PART, THAT THE "COVERAGE AND
SCOPE OF THE (GRIEVANCE) PROCEDURE SHALL BE NEGOTIATED BY THE PARTIES TO
THE AGREEMENT WITH THE EXCEPTION THAT IT MAY NOT COVER MATTERS FOR WHICH
A STATUTORY APPEAL PROCEDURE EXISTS AND SO LONG AS IT DOES NOT OTHERWISE
CONFLICT WITH STATUTE OR THIS ORDER." THUS, WITH THE RECENT AMENDMENTS
TO SECTION 13(A), THE REQUIREMENT THAT THE SCOPE OF THE NEGOTIATED
GRIEVANCE PROCEDURE BE LIMITED TO GRIEVANCES OVER THE INTERPRETATION OR
APPLICATION OF THE AGREEMENT HAS BEEN ELIMINATED. BASED UPON THIS
CHANGE, AS EXPLICATED IN THE ABOVE-QUOTED PASSAGE FROM THE COUNCIL'S
REPORT AND RECOMMENDATIONS, IT IS CLEAR THAT THE PARTIES CAN AGREE TO
PROVISIONS WHICH WOULD, IN EFFECT, EXTEND THE NEGOTIATED GRIEVANCE
PROCEDURE TO MATTERS SUCH AS THE APPLICATION OF POLICIES AND REGULATIONS
WHICH ARE NOT EMBODIED OR INCORPORATED IN THE AGREEMENT SO LONG AS THE
PROCEDURE DOES NOT EXTEND TO MATTERS FOR WHICH A STATUTORY APPEAL
PROCEDURE EXISTS AND SO LONG AS IT DOES NOT OTHERWISE CONFLICT WITH
STATUTE OR THE ORDER. THE AGENCY DOES NOT CONTEND THAT THE PROPOSAL
WOULD EXTEND THE NEGOTIATED GRIEVANCE PROCEDURE TO MATTERS FOR WHICH A
STATUTORY APPEAL PROCEDURE EXISTS OR OTHERWISE CONFLICTS WITH STATUTE,
AND WE DO NOT INTERPRET THE PROPOSAL TO DO SO.
SECOND, AS TO THE AGENCY'S CONTENTION THAT THE PROPOSAL WOULD PUT
"POLICIES, RULES AND REGULATIONS OF THE CIVIL SERVICE COMMISSION AND THE
DEPARTMENT OF JUSTICE UNDER THE NEGOTIATED GRIEVANCE PROCEDURE," WE
BELIEVE THAT THE AGENCY HAS, TO SOME EXTENT, MISINTERPRETED THE UNION'S
PROPOSAL.
THE PROPOSAL, BY ITS TERMS, IS LIMITED TO:
(1) THE APPLICATION OF THOSE POLICIES AND REGULATIONS WHICH ARE
REFERRED TO IN SECTION A OF
ARTICLE 4 OF THE AGREEMENT, AND HENCE, IN EFFECT, THOSE REFERRED TO
IN SECTION 12(A) OF THE
ORDER; /7/
(2) INSOFAR AS THEY ARE WITHIN THE EMPLOYER'S DISCRETION; AND
(3) WHICH AFFECT WORKING CONDITIONS OF EMPLOYEES IN THE UNIT.
SECTION 12(A) OF THE ORDER AND, HENCE, SECTION A OF ARTICLE 4 OF THE
AGREEMENT REQUIRE THAT SUCH POLICIES AND REGULATIONS REFERRED TO THEREIN
GOVERN "THE ADMINISTRATION OF ALL MATTERS COVERED BY THE AGREEMENT."
HENCE, THE PROPOSAL HEREIN DEALS ONLY WITH THE APPLICATION OF THOSE
POLICIES AND REGULATIONS WHICH GOVERN THE ADMINISTRATION OF MATTERS
COVERED BY THE AGREEMENT. THAT IS TO SAY, ONLY THOSE POLICIES AND
REGULATIONS WHICH PERTAIN TO OR DEAL WITH MATTERS OTHERWISE COVERED IN
THE NEGOTIATED AGREEMENT FALL WITHIN THE AMBIT OF THIS PROPOSAL.
MOREOVER, THE PROPOSAL DEALS ONLY WITH POLICIES AND REGULATIONS WHICH
AFFECT CERTAIN MATTERS (I.E., "WORKING CONDITIONS") THAT FALL WITHIN THE
SCOPE OF BARGAINING DESCRIBED IN SECTION 11(A) OF THE ORDER. /8/
FINALLY, THE PROPOSAL CALLS FOR THE EMPLOYER TO APPLY SUCH POLICIES AND
REGULATIONS FAIRLY AND EQUITABLY TO THE EXTENT THAT SUCH APPLICATION IS
WITHIN THE EMPLOYER'S DISCRETION. CONSEQUENTLY, THE PROPOSAL COULD
SUBJECT ONLY THE EMPLOYER'S DISCRETIONARY APPLICATION OF SUCH POLICIES
AND REGULATIONS THAT AFFECT WORKING CONDITIONS AND DEAL WITH MATTERS
OTHERWISE COVERED IN THE NEGOTIATED AGREEMENT TO THE NEGOTIATED
GRIEVANCE PROCEDURE. THOSE ASPECTS OF SUCH POLICIES AND REGULATIONS
REFERRED TO IN SECTION A OF ARTICLE 4 WHICH ARE NOT WITHIN THE
EMPLOYER'S DISCRETION, E.G., MANDATORY REQUIREMENTS REFLECTED IN SUCH
POLICIES AND REGULATIONS ESTABLISHED AT LEVELS ABOVE THE EMPLOYER, AS
WELL AS THOSE WHICH DO NOT AFFECT WORKING CONDITIONS OR THOSE WHICH DO
NOT PERTAIN TO MATTERS OTHERWISE COVERED IN THE NEGOTIATED AGREEMENT,
WOULD NOT BE COVERED BY THE PROPOSAL AND HENCE COULD NOT, AS A RESULT OF
THIS PARTICULAR PROVISION, BE SUBJECTED TO THE NEGOTIATED GRIEVANCE
PROCEDURE.
IN SUMMARY, NOTHING IN SECTION 13(A) OF THE ORDER RENDERS
NONNEGOTIABLE A PROPOSAL WHICH CALLS FOR THE FAIR AND EQUITABLE
APPLICATION OF THOSE POLICIES AND REGULATIONS THAT GOVERN MATTERS
OTHERWISE COVERED IN THE NEGOTIATED AGREEMENT AND AFFECT WORKING
CONDITIONS OF EMPLOYEES IN THE UNIT TO THE EXTENT THAT SUCH POLICIES AND
REGULATIONS ARE WITHIN THE DISCRETION OF THE EMPLOYER, AS PROPOSED BY
THE UNION. THEREFORE, THE AGENCY'S DETERMINATION THAT THE PROPOSAL
VIOLATES SECTION 13(A) MUST BE REJECTED.
2. SECTIONS 11(B) AND 12(B):
WE TURN NEXT TO THE AGENCY'S DETERMINATION THAT THE PROPOSAL VIOLATES
SECTIONS 11(B) /9/ AND 12 (B) /10/ OF THE ORDER BECAUSE IT WOULD SUBJECT
MATTERS WHICH ARE BEYOND THE SCOPE OF COLLECTIVE BARGAINING "TO REVIEW
IN A GRIEVANCE AND ARBITRATION PROCEEDING." IN ITS STATEMENT OF
POSITION, THE AGENCY FURTHER EXPLAINS THAT THE PROPOSAL WOULD VIOLATE
SECTIONS 11(B) AND 12(B) BY CONTENDING THAT THE PROPOSAL WOULD SUBJECT
THESE BASIC MANAGEMENT RIGHTS TO THE NEGOTIATED GRIEVANCE PROCEDURE BY
ITS "BLANKET REFERENCE TO A WIDE RANGE OF LAWS, RULES AND REGULATIONS."
WE CANNOT AGREE WITH THE AGENCY. AS WE INDICATED ABOVE, WE BELIEVE
THAT THE AGENCY HAS, TO SOME EXTENT, MISINTERPRETED THE UNION'S
PROPOSAL. IN OUR VIEW, THE PROPOSAL DOES NOT MAKE A BLANKET REFERENCE
TO A WIDE RANGE OF LAWS, RULES AND REGULATIONS, THEREBY SUBJECTING
MATTERS WHICH ARE BEYOND THE SCOPE OF BARGAINING TO THE NEGOTIATED
GRIEVANCE PROCEDURE. AS WE NOTED ABOVE, THE PROPOSAL DEALS ONLY WITH
THE APPLICATION OF THOSE POLICIES AND REGULATIONS WHICH PERTAIN TO
MATTERS OTHERWISE COVERED IN THE NEGOTIATED AGREEMENT INSOFAR AS THEY
ARE WITHIN THE EMPLOYER'S DISCRETION AND WHICH AFFECT WORKING CONDITIONS
OF EMPLOYEES IN THE UNIT. THUS, MATTERS COVERED IN THOSE POLICIES AND
REGULATIONS WHICH ARE BEYOND THE EMPLOYER'S DISCRETION ARE NOT COVERED.
FURTHER, CONTRARY TO THE AGENCY'S CONCLUSIONS, THE LANGUAGE OF THE
PROPOSAL ITSELF DOES NOT EXPLICITLY PURPORT TO SUBJECT THE MATTERS
COVERED BY SECTIONS 11(B) AND 12(B) OF THE ORDER TO THE NEGOTIATED
GRIEVANCE PROCEDURE. MOREOVER, WE DO NOT INTERPRET IT AS IN ANY WAY
EXTENDING THE SCOPE AND COVERAGE OF THE NEGOTIATED GRIEVANCE PROCEDURE
TO SUCH MATTERS.
AS WE NOTED ABOVE, SECTION 13(A) OF THE ORDER PERMITS THE PARTIES TO
NEGOTIATE THE COVERAGE AND SCOPE OF THE GRIEVANCE PROCEDURE "WITH THE
EXCEPTION THAT IT MAY NOT COVER MATTERS FOR WHICH A STATUTORY APPEAL
PROCEDURE EXISTS AND SO LONG AS IT DOES NOT OTHERWISE CONFLICT WITH
STATUTE OR THIS ORDER." (EMPHASIS ADDED.) CLEARLY, THEREFORE, NO
NEGOTIATED GRIEVANCE PROCEDURE MAY CONFLICT WITH SECTION 11(B) OR 12(B)
OR WITH ANY OTHER PROVISION OF THE ORDER. THUS, AS WE INDICATED IN THE
ABOVE-QUOTED PASSAGE FROM THE REPORT, SECTION 13(A) "WILL PERMIT THEM
(THE PARTIES) TO INCLUDE GRIEVANCES OVER AGENCY REGULATIONS AND
POLICIES, WHETHER OR NOT THE REGULATIONS AND POLICIES ARE CONTAINED IN
THE AGREEMENT, PROVIDED THE GRIEVANCES ARE NOT OVER MATTERS OTHERWISE
EXCLUDED FROM NEGOTIATIONS BY SECTIONS 11(B) AND 12(B) OF THE ORDER OR
SUBJECT TO STATUTORY APPEAL PROCEDURES."
WE HAVE CONCLUDED THAT THE PROVISION ITSELF DOES NOT EXTEND THE SCOPE
OF THE NEGOTIATED GRIEVANCE PROCEDURE TO MATTERS COVERED BY SECTIONS
11(B) AND 12(B). THEREFORE, SHOULD THE AGENCY AGREE TO THIS PROPOSAL,
SUCH AGREEMENT, STANDING ALONE, COULD NOT EXTEND THE SCOPE OF THE
NEGOTIATED GRIEVANCE PROCEDURE TO MATTERS OTHERWISE EXCLUDED FROM THE
AGENCY'S OBLIGATION TO NEGOTIATE BY SECTION 11(B). MOREOVER, AS TO
SECTION 12(B) OF THE ORDER, THE COUNCIL, IN ITS DECISIONS, CONSISTENTLY
HAS EMPHASIZED THAT THE RIGHTS RESERVED TO MANAGEMENT OFFICIALS UNDER
THAT SECTION OF THE ORDER ARE MANDATORY AND CANNOT BE BARGAINED AWAY.
THUS, FOR EXAMPLE, IN ITS VA RESEARCH HOSPITAL DECISION, THE COUNCIL
STATED THAT THE "EMPHASIS IS ON THE RESERVATION OF MANAGEMENT AUTHORITY
TO DECIDE AND ACT ON THESE MATTERS, AND THE CLEAR IMPORT IS THAT NO
RIGHT ACCORDED TO UNIONS UNDER THE ORDER MAY BE PERMITTED TO INTERFERE
WITH THAT AUTHORITY." /11/ FURTHER, AS WE HAVE ALSO INDICATED,
"MANAGEMENT'S RESERVED RIGHTS UNDER SECTION 12(B) MAY NOT BE INFRINGED
BY AN ARBITRATOR'S AWARD UNDER A NEGOTIATED GRIEVANCE PROCEDURE." /12/
THE PROVISIONS OF THE NEGOTIATED AGREEMENT WHICH ESTABLISH THE
GRIEVANCE PROCEDURE REQUIRED BY SECTION 13(A) OF THE ORDER ARE NOT
BEFORE US IN THIS CASE. HOWEVER, SHOULD MANAGEMENT AGREE TO THE SUBJECT
PROPOSAL, IT IS CONCEIVABLE THAT GRIEVANCES COULD ARISE THEREUNDER IN
WHICH IT IS ALLEGED THAT THE EMPLOYER HAS NOT APPLIED FAIRLY AND
EQUITABLY A POLICY OR REGULATION WHICH AFFECTS WORKING CONDITIONS OF
EMPLOYEES IN THE UNIT AND WHICH IS WITHIN THE EMPLOYER'S DISCRETION.
SHOULD THE EMPLOYER BELIEVE THAT THE APPLICATION OF SUCH POLICY OR
REGULATION UNDER THE SUBJECT PROPOSAL INVOLVES A MATTER EXCLUDED BY
SECTION 11(B) OR SECTION 12(B), HE CAN CHALLENGE THE GRIEVABILITY OR
ARBITRABILITY OF THE GRIEVANCE. HOWEVER, THE MERE POSSIBILITY THAT SUCH
A GRIEVABILITY OR ARBITRABILITY ISSUE REGARDING THE PROPOSED PROVISION
MIGHT ARISE UNDER SECTION 11(B) OR SECTION 12(B) OF THE ORDER-- OR UNDER
A STATUTE-- IS NOT SUFFICIENT REASON TO WARRANT HOLDING THE PROVISION
ITSELF NONNEGOTIABLE.
MOREOVER, SHOULD THE NEGOTIATED GRIEVANCE PROCEDURE PROVIDE FOR
ARBITRATION, ANY ARBITRATOR CONSIDERING A GRIEVANCE THEREUNDER,
INCLUDING A GRIEVANCE ALLEGING A VIOLATION OF THE PROPOSED PROVISION,
COULD NOT CONSIDER SUCH A PROVISION IN A VACUUM. /13/ AS THE
ABOVE-QUOTED PASSAGE FROM THE REPORT NOTED, "ARBITRATORS OF NECESSITY
NOW CONSIDER THE MEANING OF LAWS AND REGULATIONS, INCLUDING AGENCY
REGULATIONS, IN RESOLVING GRIEVANCES ARISING UNDER NEGOTIATED AGREEMENTS
BECAUSE PROVISIONS IN SUCH AGREEMENTS OFTEN DEAL WITH SUBSTANTIVE
MATTERS WHICH ARE ALSO DEALT WITH IN LAW OR REGULATION AND BECAUSE
SECTION 12(A) OF THE ORDER REQUIRES THAT THE ADMINISTRATION OF EACH
NEGOTIATED AGREEMENT BE SUBJECT TO SUCH LAW AND REGULATION." CLEARLY,
AMONG THE "LAWS" THAT THE ARBITRATOR WOULD CONSIDER MUST BE THE ORDER,
INCLUDING SECTIONS 11(B) AND 12(B), TO ENSURE THAT ANY FINDING THAT HE
MIGHT MAKE OR ANY AWARD THAT HE MIGHT FASHION IS CONSISTENT THEREWITH.
FINALLY, ARBITRATION AWARDS ARE SUBJECT TO REVIEW BY THE COUNCIL.
/14/ AS THE REPORT ALSO NOTED: "OF COURSE, FINAL DECISIONS UNDER
NEGOTIATED GRIEVANCE PROCEDURES, INCLUDING FINAL AND BINDING AWARDS BY
ARBITRATORS WHERE THE NEGOTIATED PROCEDURE MAKES PROVISION FOR SUCH
ARBITRATION, MUST BE CONSISTENT WITH APPLICABLE LAW, APPROPRIATE
REGULATION OR THE ORDER. . . FOR EXAMPLE, SHOULD THE COUNCIL FIND THAT
AN AWARD VIOLATES THE PROVISIONS OF TITLE 5, UNITED STATES CODE, OR THAT
AN AWARD VIOLATES THE REGULATIONS OF THE CIVIL SERVICE COMMISSION, OR
THAT AN AWARD VIOLATES SECTION 12(B) OF THE ORDER, THE COUNCIL WOULD
MODIFY OR SET ASIDE THAT AWARD."
IN SUMMARY, THEREFORE, CONTRARY TO THE AGENCY HEAD'S DETERMINATION,
WE MUST CONCLUDE THAT THE PROPOSAL DOES NOT VIOLATE SECTIONS 11(B) AND
12(B) OF THE ORDER.
FOR THE REASONS DISCUSSED ABOVE, AND PURSUANT TO SECTION 2411.27 OF
THE COUNCIL'S RULES AND REGULATIONS, WE FIND THAT THE AGENCY HEAD'S
DETERMINATION THAT THE UNION'S PROPOSAL IN THE INSTANT CASE WAS NOT
NEGOTIABLE, WAS IMPROPER AND MUST BE SET ASIDE. THIS DECISION SHOULD
NOT BE CONSTRUED AS EXPRESSING OR IMPLYING ANY OPINION OF THE COUNCIL AS
TO THE MERITS OF THE UNION'S PROPOSAL. WE DECIDE ONLY THAT, AS
SUBMITTED BY THE UNION AND BASED UPON THE RECORD BEFORE THE COUNCIL, THE
PROPOSAL IS PROPERLY SUBJECT TO NEGOTIATION BY THE PARTIES UNDER SECTION
11(A) OF THE ORDER.
BY THE COUNCIL.
ISSUED: JUNE 10, 1975
/1/ SECTION A OF ARTICLE 4 ESSENTIALLY INCORPORATES, AS REQUIRED BY
THE ORDER, SECTION 12(A) OF THE ORDER IN THE NEGOTIATED AGREEMENT.
/2/ THE DETERMINATION BY THE AGENCY HEAD REGARDING THE NEGOTIABILITY
OF THE UNION'S PROPOSAL IN THIS CASE WAS MADE UNDER E.O. 11491, AS
AMENDED BY E.O. 11616, AND PRIOR TO AMENDMENT BY E.O. 11838.
/3/ SECTION 13(A) OF THE ORDER THEN PROVIDED IN PERTINENT PART:
SEC. 13. GRIEVANCE AND ARBITRATION PROCEDURES. (A) AN AGREEMENT
BETWEEN AN AGENCY AND A LABOR
ORGANIZATION SHALL PROVIDE A PROCEDURE, APPLICABLE ONLY TO THE UNIT,
FOR THE CONSIDERATION OF
GRIEVANCES OVER THE INTERPRETATION OR APPLICATION OF THE AGREEMENT.
A NEGOTIATED GRIEVANCE
PROCEDURE MAY NOT COVER ANY OTHER MATTERS, INCLUDING MATTERS FOR
WHICH STATUTORY APPEALS
PROCEDURES EXIST, AND SHALL BE THE EXCLUSIVE PROCEDURE AVAILABLE TO
THE PARTIES AND THE
EMPLOYEES IN THE UNIT FOR RESOLVING SUCH GRIEVANCES . . .
/4/ SECTION 2411.26 OF THE COUNCIL'S RULES OF PROCEDURE PROVIDES:
SEC. 2411.26 REFERRAL BY THE FEDERAL SERVICE IMPASSES PANEL. (A)
NOTWITHSTANDING THE
PROCEDURES OF THIS SUBPART, EXCEPT SEC. 2411.22, WHEN THE PANEL FINDS
THAT A NEGOTIABILITY
ISSUE IS IMPEDING THE RESOLUTION OF A NEGOTIATION IMPASSE, THE PANEL
MAY REFER THE
NEGOTIABILITY ISSUE TO THE COUNCIL FOR DECISION. (B) A REFERRAL BY
THE PANEL SHALL
CONTAIN: (1) THE MATTER PROPOSED TO BE NEGOTIATED AS SUBMITTED TO
THE AGENCY HEAD FOR
DETERMINATION; (2) THE AGENCY HEAD'S DETERMINATION THEREON; (3)
STATEMENTS OF POSITION FROM
EACH PARTY WITH SUPPORTING EVIDENCE AND ARGUMENT; AND (4) ANY OTHER
APPROPRIATE DOCUMENTS OF
RECORD. (C) THE PANEL MAY REFER A NEGOTIABILITY ISSUE FOR DECISION BY
THE COUNCIL AT ANY TIME
DURING ITS CONSIDERATION OF A NEGOTIATION IMPASSE. (D) THE COUNCIL
WILL GIVE SUCH REFERRALS
PRIORITY CONSIDERATION.
/5/ SEE COUNCIL'S INFORMATION ANNOUNCEMENT OF DECEMBER 18, 1973,
ENTITLED "AREAS TO BE FOCUSED UPON DURING THE COUNCIL'S GENERAL REVIEW
OF THE FEDERAL LABOR-MANAGEMENT RELATIONS PROGRAM," AREA VI.
/6/ LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1975), PP.
45-51.
/7/ SECTION 12 PROVIDES IN PERTINENT PART:
SEC. 12. BASIC PROVISIONS OF AGREEMENTS. EACH AGREEMENT BETWEEN AN
AGENCY AND A LABOR
ORGANIZATION IS SUBJECT TO THE FOLLOWING REQUIREMENTS-- (A) IN THE
ADMINISTRATION OF ALL
MATTERS COVERED BY THE AGREEMENT, OFFICIALS AND EMPLOYEES ARE
GOVERNED BY EXISTING OR FUTURE
LAWS AND THE REGULATIONS OF APPROPRIATE AUTHORITIES, INCLUDING
POLICIES SET FORTH IN THE
FEDERAL PERSONNEL MANUAL; BY PUBLISHED AGENCY POLICIES AND
REGULATIONS IN EXISTENCE AT THE
TIME THE AGREEMENT WAS APPROVED; AND BY SUBSEQUENTLY PUBLISHED
AGENCY POLICIES AND REGULATIONS
REQUIRED BY LAW OR BY THE REGULATIONS OF APPROPRIATE AUTHORITIES, OR
AUTHORIZED BY THE TERMS
OF A CONTROLLING AGREEMENT AT A HIGHER AGENCY LEVEL; THE
REQUIREMENTS OF THIS SECTION SHALL BE
EXPRESSLY STATED IN THE INITIAL OR BASIC AGREEMENT AND APPLY TO ALL
SUPPLEMENTAL,
IMPLEMENTING, SUBSIDIARY, OR INFORMAL AGREEMENTS BETWEEN THE AGENCY
AND THE ORGANIZATION.
/8/ SECTION 11(A) PROVIDES:
SEC. 11. NEGOTIATION OF AGREEMENTS. (A) AN AGENCY AND A LABOR
ORGANIZATION THAT HAS BEEN
ACCORDED EXCLUSIVE RECOGNITION, THROUGH APPROPRIATE REPRESENTATIVES,
SHALL MEET AT REASONABLE
TIMES AND CONFER IN GOOD FAITH WITH RESPECT TO PERSONNEL POLICIES AND
PRACTICES AND MATTERS
AFFECTING WORKING CONDITIONS, SO FAR AS MAY BE APPROPRIATE UNDER
APPLICABLE LAWS AND
REGULATIONS, INCLUDING POLICIES SET FORTH IN THE FEDERAL PERSONNEL
MANUAL; PUBLISHED AGENCY
POLICIES AND REGULATIONS FOR WHICH A COMPELLING NEED EXISTS UNDER
CRITERIA ESTABLISHED BY THE
FEDERAL LABOR RELATIONS COUNCIL AND WHICH ARE ISSUED AT THE AGENCY
HEADQUARTERS LEVEL OR AT
THE LEVEL OF A PRIMARY NATIONAL SUBDIVISION; A NATIONAL OR OTHER
CONTROLLING AGREEMENT AT A
HIGHER LEVEL IN THE AGENCY; AND THIS ORDER. THEY MAY NEGOTIATE AN
AGREEMENT, OR ANY QUESTION
ARISING THEREUNDER; DETERMINE APPROPRIATE TECHNIQUES, CONSISTENT
WITH SECTION 17 OF THIS
ORDER, TO ASSIST IN SUCH NEGOTIATION; AND EXECUTE A WRITTEN
AGREEMENT OR MEMORANDUM OF
UNDERSTANDING. (EMPHASIS ADDED.)
/9/ SECTION 11(B) PROVIDES:
SEC. 11. NEGOTIATION OF AGREEMENTS. (B) IN PRESCRIBING REGULATIONS
RELATING TO PERSONNEL
POLICIES AND PRACTICES AND WORKING CONDITIONS, AN AGENCY SHALL HAVE
DUE REGARD FOR THE
OBLIGATION IMPOSED BY PARAGRAPH (A) OF THIS SECTION. HOWEVER, THE
OBLIGATION TO MEET AND
CONFER DOES NOT INCLUDE MATTERS WITH RESPECT TO THE MISSION OF AN
AGENCY; ITS BUDGET; ITS
ORGANIZATION; THE NUMBER OF EMPLOYEES; AND THE NUMBERS, TYPES, AND
GRADES OF POSITIONS OR
EMPLOYEES ASSIGNED TO AN ORGANIZATIONAL UNIT, WORK PROJECT OR TOUR OF
DUTY; THE TECHNOLOGY OF
PERFORMING ITS WORK; OR ITS INTERNAL SECURITY PRACTICES. THIS DOES
NOT PRECLUDE THE PARTIES
FROM NEGOTIATING AGREEMENTS PROVIDING APPROPRIATE ARRANGEMENTS FOR
EMPLOYEES ADVERSELY
AFFECTED BY THE IMPACT OF REALIGNMENT OF WORK FORCES OR TECHNOLOGICAL
CHANGE.
/10/ SECTION 12(B) PROVIDES:
SEC. 12. BASIC PROVISIONS OF AGREEMENTS. EACH AGREEMENT BETWEEN AN
AGENCY AND A LABOR
ORGANIZATION IS SUBJECT TO THE FOLLOWING REQUIREMENTS-- (B)
MANAGEMENT OFFICIALS OF THE AGENCY
RETAIN THE RIGHT, IN ACCORDANCE WITH APPLICABLE LAWS AND
REGULATIONS-- (1) TO DIRECT EMPLOYEES
OF THE AGENCY; (2) TO HIRE, PROMOTE, TRANSFER, ASSIGN, AND RETAIN
EMPLOYEES IN POSITIONS
WITHIN THE AGENCY, AND TO SUSPEND, DEMOTE, DISCHARGE, OR TAKE OTHER
DISCIPLINARY ACTION
AGAINST EMPLOYEES; (3) TO RELIEVE EMPLOYEES FROM DUTIES BECAUSE OF
LACK OF WORK OR FOR OTHER
LEGITIMATE REASONS; (4) TO MAINTAIN THE EFFICIENCY OF THE GOVERNMENT
OPERATIONS ENTRUSTED TO
THEM; (5) TO DETERMINE THE METHODS, MEANS, AND PERSONNEL BY WHICH
SUCH OPERATIONS ARE TO BE
CONDUCTED; AND (6) TO TAKE WHATEVER ACTIONS MAY BE NECESSARY TO
CARRY OUT THE MISSION OF THE
AGENCY IN SITUATIONS OF EMERGENCY; . . .
/11/ VETERANS ADMINISTRATION INDEPENDENT SERVICE EMPLOYEES UNION AND
VETERANS ADMINISTRATION RESEARCH HOSPITAL, CHICAGO, ILLINOIS, FLRC NO.
71A-31 (NOVEMBER 22, 1972), REPORT NO. 31, AT P. 3; ACCORD, NATIONAL
COUNCIL OF OEO LOCALS, AFGE, AFL-CIO AND OFFICE OF ECONOMIC OPPORTUNITY,
FLRC NO. 73A-67 (DECEMBER 6, 1974), REPORT NO. 61, AT P. 3; VETERANS
ADMINISTRATION HOSPITAL, CANANDAIGUA, NEW YORK AND LOCAL 227, SERVICE
EMPLOYEES INTERNATIONAL UNION, BUFFALO, NEW YORK (MILLER, ARBITRATOR),
FLRC NO. 73A-42 (JULY 31, 1974), REPORT NO. 55, AT PP. 8-9; AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1966 AND VETERANS
ADMINISTRATION HOSPITAL, LEBANON, PENNSYLVANIA, FLRC NO. 73A-41
(DECEMBER 12, 1973), REPORT NO. 46, AT PP. 5-7; TIDEWATER VIRGINIA
FEDERAL EMPLOYEES METAL TRADES COUNCIL AND NAVAL PUBLIC WORKS CENTER,
NORFOLK, VIRGINIA, FLRC NO. 71A-56 (JUNE 29, 1973), REPORT NO. 41, AT
PP. 4-7.
/12/ PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION AND FEDERAL
AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION (BUTTON,
ARBITRATOR), FLRC NO. 74A-1 (JUNE 24, 1974), REPORT NO. 53, AT P. 4;
VETERANS ADMINISTRATION HOSPITAL, CANANDAIGUA, NEW YORK AND LOCAL 227,
SERVICE EMPLOYEES INTERNATIONAL UNION, BUFFALO, NEW YORK, FLRC NO.
73A-42 (JULY 31, 1974), REPORT NO. 55, AT P. 9; NATIONAL COUNCIL OF OEO
LOCALS, AFGE, AFL-CIO AND OFFICE OF ECONOMIC OPPORTUNITY, FLRC NO.
73A-67 (DECEMBER 6, 1974), REPORT NO. 61, AT P. 5.
/13/ CF. LOCAL LODGE 830, IAM AND LOUISVILLE NAVAL ORDNANCE STATION,
DEPARTMENT OF THE NAVY, FLRC NO. 73A-21 (JANUARY 31, 1974), REPORT NO.
48, AT PP. 6-7.
/14/ SEE SECTION 4(C)(3) OF THE ORDERAND PART 2411, SUBPART D OF THE
COUNCIL'S RULES (5 CFR 2411.31-- 2411.37).
3 FLRC 324; FLRC NO. 73A-36; JUNE 10, 1975.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, NATIONAL JOINT COUNCIL
OF FOOD INSPECTION LOCALS
AND
OFFICE OF THE ADMINISTRATOR, ANIMAL
AND PLANT HEALTH INSPECTION SERVICE,
U.S. DEPARTMENT OF AGRICULTURE
(SYNOPSIS) FLRC NO. 73A-36
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, NATIONAL JOINT COUNCIL
OF FOOD INSPECTION LOCALS AND OFFICE OF THE ADMINISTRATOR, ANIMAL AND
PLANT HEALTH INSPECTION SERVICE, U.S. DEPARTMENT OF AGRICULTURE. THE
COUNCIL PREVIOUSLY RULED THAT THE SUBJECT UNION PROPOSAL, CONCERNING THE
DAYS OF THE WORKWEEK, AND THE STARTING TIMES OF THE WORKWEEK, FOR THE
AGENCY'S MEAT AND POULTRY INSPECTORS, WAS NEGOTIABLE (REPORT NO. 47).
THEREAFTER, IN AN ACTION CONTESTING THE COUNCIL'S DISPOSITION OF THE
MATTER, INITIATED BY A NUMBER OF INDUSTRY ASSOCIATIONS, THE COURT
REMANDED THE CASE TO THE COUNCIL FOR RECONSIDERATION PRIOR TO FINAL
COURT DECISION (NATIONAL BROILER COUNCIL, INC. V. FEDERAL LABOR
RELATIONS COUNCIL, 382 F.SUPP. 322 (E.D. VA. 1974)).
COUNCIL ACTION (JUNE 10, 1975). THE COUNCIL, FOR THE REASONS FULLY
SET FORTH IN ITS SUPPLEMENTAL DECISION AND UPON CAREFUL RECONSIDERATION
CONSISTENT WITH THE MANDATE OF THE COURT, REAFFIRMED ITS EARLIER
DECISION THAT THE UNION PROPOSAL, AS SUBMITTED TO THE COUNCIL, IS VALID
AND CONSEQUENTLY NEGOTIABLE UNDER SECTION 11(A) OF THE ORDER.
THE PARTIES TO THE CASE BEFORE THE COUNCIL ARE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, NATIONAL JOINT COUNCIL OF FOOD INSPECTION LOCALS
(UNION) AND OFFICE OF THE ADMINISTRATOR, ANIMAL AND PLANT HEALTH
INSPECTION SERVICE, U.S. DEPARTMENT OF AGRICULTURE (AGENCY).
THIS CASE WAS INITIALLY DECIDED BY THE COUNCIL ON DECEMBER 27, 1973
(REPORT NO. 47). IT IS NOW BEFORE THE COUNCIL FOR RECONSIDERATION
PURSUANT TO REMAND BY THE COURT, PRIOR TO FINAL COURT DECISION, IN THE
ACTION CONTESTING THE COUNCIL'S DISPOSITION OF THIS MATTER (NATIONAL
BROILER COUNCIL, INC. V. FEDERAL LABOR RELATIONS COUNCIL, 382 F.SUPP.
322 (E.D. VA. 1974)).
THE BACKGROUND OF THE CASE, INCLUDING THE COUNCIL'S INITIAL DECISION,
THE SUBSEQUENT AGREEMENT OF THE PARTIES, THE COURT OPINION AND ORDER,
AND THE INSTANT REMAND PROCEEDINGS, ARE SUMMARIZED BELOW.
A. INITIAL DECISION BY THE COUNCIL. THE NEGOTIABILITY DISPUTE
BETWEEN THE PARTIES INVOLVED THE UNION'S PROPOSAL CONCERNING THE DAYS OF
THE WORKWEEK, AND THE STARTING TIMES OF THE WORKWEEK, FOR THE AGENCY'S
MEAT AND POULTRY INSPECTORS REPRESENTED BY THE UNION IN A NATIONWIDE
BARGAINING UNIT. MORE PARTICULARLY, THE PROPOSAL IN QUESTION PROVIDED:
WORKWEEK: IT IS AGREED THAT THE BASIC WORKWEEK IS FORTY (40) HOURS
AND THE BASIC WORKDAY
IS EIGHT (8) HOURS. THE WORKWEEK SHALL COMMENCE AT 6:00 A.M. AND
SHALL NOT COMMENCE AFTER
6:00 P.M. ON EACH MONDAY. IT SHALL CONSIST OF FIVE (5) CONSECUTIVE
EIGHT (8) HOUR DAYS,
MONDAY THROUGH FRIDAY.
(A) A WORKDAY SHALL CONSIST OF EIGHT (8) CONSECUTIVE HOURS EXCLUDING
THE LUNCH MEALTIME.
(B) THE LUNCH PERIOD SHALL BE NO LESS THAN THIRTY (30) MINUTES OR
MORE THAN SIXTY (60)
MINUTES AND SHALL OCCUR NOT LESS THAN FOUR (4) HOURS OR MORE THAN
FIVE (5) HOURS AFTER THE
START OF THE DAY. (UNDERSCORING REFLECTS PROVISIONS IN DISPUTE.)
UPON APPEAL FROM THE AGENCY'S DETERMINATION OF NONNEGOTIABILITY,
FILED BY THE UNION UNDER SECTION 11(C)(4) OF THE ORDER, THE COUNCIL SET
ASIDE THE DETERMINATION, FINDING UNSUPPORTED THE AGENCY'S POSITION THAT
THE PROPOSAL WOULD VIOLATE APPLICABLE STATUTES (POULTRY PRODUCTS
INSPECTION ACT, 21 U.S.C. 451 ET SEQ; FEDERAL MEAT INSPECTION ACT, 21
U.S.C. 601 ET SEQ; AND THE OVERTIME PAY CODE, 5 U.S.C. 5542(A)), AND
THAT BARGAINING ON THE PROPOSAL WAS NOT REQUIRED BY REASON OF SECTIONS
11(B) AND 12(B)(4) AND (5) OF THE ORDER.
IN MORE DETAIL, AS TO THE STATUTES RELIED UPON BY THE AGENCY, THE
COUNCIL FOUND THAT THE PROPOSAL DID NOT VIOLATE THE POULTRY AND MEAT
INSPECTION ACTS SINCE, CONTRARY TO THE AGENCY'S CONTENTIONS, THE
AGENCY'S AUTHORITY TO SPECIFY THE BASIC WORKWEEK AND HOURS OF WORK FOR
INSPECTORS WAS NOT SHOWN TO HAVE BEEN RESERVED SOLELY AND EXCLUSIVELY TO
AGENCY MANAGEMENT. FURTHER, WHILE THE AGENCY CONTENDED THAT THE
PROPOSAL WOULD RESTRICT THE OPERATIONAL FLEXIBILITY OF THE INDUSTRY IN
CONFLICT WITH THOSE STATUTES, /1/ THE COUNCIL HELD THAT THE AGENCY HAD
NOT ESTABLISHED THAT ANY SUCH OPERATIONAL RESTRICTION WOULD DERIVE FROM
THE PROPOSAL; AND, IN ANY EVENT, THE AGENCY HAD NOT ONLY FAILED TO SHOW
ANY AFFIRMATIVE INTENT BY CONGRESS TO PREVENT SUCH A RESTRICTION, BUT
RATHER BOTH ACTS EXPRESSLY PROVIDED FOR THE PAYMENT OF OVERTIME COSTS BY
THE INDUSTRY, THUS COUNTENANCING SUCH A RESTRICTION ON OPERATIONAL
FLEXIBILITY. /2/ THEREFORE, THE COUNCIL CONCLUDED THAT NEITHER
INSPECTION ACT CONSTITUTED A BAR TO NEGOTIABILITY.
LIKEWISE, THE COUNCIL FOUND THAT THE SUBJECT PROPOSAL WOULD NOT
VIOLATE STATUTORY RESTRICTIONS ON THE PAYMENT OF OVERTIME (5 U.S.C.
5542(A)), AS CLAIMED BY THE AGENCY, SINCE NOTHING IN THE PROPOSAL AS
SUBMITTED TO THE COUNCIL WOULD REQUIRE THE PAYMENT OF OVERTIME TO THE
INSPECTORS BEFORE THE STATUTORY MINIMUMS WERE SATISFIED (I.E., WORK "IN
EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK," OR "IN EXCESS OF 8
HOURS IN A DAY").
AS TO THE PROVISIONS OF THE ORDER RELIED UPON BY THE AGENCY, THE
COUNCIL REJECTED THE AGENCY'S CONTENTIONS RELATING TO SECTION 11(B),
NAMELY THAT THE PROPOSAL INCLUDED MATTERS WITH RESPECT TO THE AGENCY'S
"MISSION" AND "BUDGET." THE COUNCIL RULED IN THIS REGARD THAT THE AGENCY
HAD FAILED TO SHOW ANY CONNECTION BETWEEN THE PROPOSAL AND THE MISSION
OR BUDGET OF THE AGENCY AS WOULD EXCEPT THE PROPOSAL FROM THE AGENCY'S
OBLIGATION TO BARGAIN UNDER THIS SECTION.
FURTHER, THE COUNCIL FOUND WITHOUT MERIT THE AGENCY'S ARGUMENT THAT
THE PROPOSAL WOULD RESULT IN OVERTIME EXPENSES WHICH WOULD CONFLICT WITH
THE AGENCY'S RIGHT TO MAINTAIN EFFICIENT AGENCY OPERATIONS UNDER SECTION
12(B)(4). THE COUNCIL ADOPTED (AND QUOTED AT LENGTH FROM) THE REASONING
FULLY SET FORTH IN ITS EARLIER DECISIONS IN THE LITTLE ROCK AND
CHARLESTON CASES, /3/ NAMELY, THAT SECTION 12(B)(4) REQUIRES A BALANCING
OF ALL THE FACTORS INVOLVED, INCLUDING NOT ONLY THE ANTICIPATION OF
INCREASED COSTS, BUT ALSO SUCH FACTORS AS THE WELL-BEING OF EMPLOYEES,
AND THE POTENTIAL FOR IMPROVED PERFORMANCE, INCREASED PRODUCTIVITY,
RESPONSIVENESS TO DIRECTION, REDUCED TURNOVER, FEWER GRIEVANCES,
CONTRIBUTION OF MONEY-SAVING IDEAS, IMPROVED HEALTH AND SAFETY, AND THE
LIKE; AND THAT, TO INVOKE SECTION 12(B)(4), THERE MUST BE A SUBSTANTIAL
DEMONSTRATION BY THE AGENCY THAT INCREASED COSTS OR REDUCED
EFFECTIVENESS IN OPERATIONS ARE INESCAPABLE AND SIGNIFICANT AND ARE NOT
OFFSET BY COMPENSATING BENEFITS. THE COUNCIL ALSO HELD THAT THESE
REQUIREMENTS UNDER SECTION 12(B)(4) WERE NOT RENDERED INAPPLICABLE HERE,
AS CLAIMED BY THE AGENCY, MERELY BY REASON OF THE SOURCE OF FUNDS
INVOLVED (THE PAYMENT OF OVERTIME COSTS BY INDUSTRY RATHER THAN BY
GOVERNMENT), OR THE TYPE OF SERVICE RENDERED (THE DIRECT SERVICING OF A
REGULATED INDUSTRY RATHER THAN A GOVERNMENT FACILITY). THE COUNCIL THEN
FOUND THAT, AS THE AGENCY HAD FAILED TO DEMONSTRATE THAT THE PROPOSAL
WOULD RESULT IN INCREASED COSTS NOT OFFSET BY COMPENSATING FACTORS, THE
PROPOSAL WAS NOT PROPERLY DETERMINED BY THE AGENCY TO BE PROSCRIBED
UNDER SECTION 12(B)(4).
FINALLY, THE COUNCIL FOUND THE AGENCY'S RELIANCE ON SECTION 12(B)(5)
TO BE MISPLACED. THE COUNCIL EXPLAINED IN THIS REGARD THAT THE PROPOSAL
NEITHER ADDRESSED, NOR SOUGHT TO LIMIT, MANAGEMENT'S RIGHT TO CHOOSE THE
METHODS AND MEANS BY WHICH AGENCY OPERATIONS WERE TO BE CONDUCTED, AND
DID NOT CONSTRICT MANAGEMENT IN ITS SELECTION OF PERSONNEL FOR OVERTIME
WORK, WHICH WORK WAS AT THE CRUX OF THE DISPUTE BETWEEN THE PARTIES.
IN CONCLUSION, THE COUNCIL SET ASIDE THE AGENCY'S DETERMINATION AS TO
THE NONNEGOTIABILITY OF THE SUBJECT UNION PROPOSAL. HOWEVER, THE
COUNCIL CAUTIONED, IN CONFORMITY WITH ITS USUAL PRACTICE IN LIKE CASES,
THAT ITS DECISION SHOULD NOT BE CONSTRUED AS EXPRESSING OR IMPLYING ANY
OPINION AS TO THE MERITS OF THE PROPOSAL, BUT WAS ONLY A DECISION THAT
THIS PROPOSAL, AS SUBMITTED BY THE UNION AND BASED ON THE RECORD THEN
BEFORE THE COUNCIL, WAS NEGOTIABLE BY THE PARTIES UNDER SECTION 11(A) OF
THE ORDER.
IN OTHER WORDS, THE COUNCIL DECIDED, IN ACCORDANCE WITH THE AUTHORITY
GRANTED UNDER SECTION 11(C)(4), THAT THE SUBJECT PROPOSAL OF THE UNION
WAS NOT VIOLATIVE OF APPLICABLE LAW, REGULATION OF APPROPRIATE AUTHORITY
OUTSIDE THE AGENCY, OR THE ORDER AND SET ASIDE THE CONTRARY
DETERMINATION OF THE AGENCY THAT THE PROPOSAL WAS VIOLATIVE OF
APPLICABLE LAW OR THE ORDER.
B. SUBSEQUENT NEGOTIATED AGREEMENT OF PARTIES. AFTER THE FOREGOING
DECISION WAS ISSUED BY THE COUNCIL THE LOCAL PARTIES RESUMED
NEGOTIATIONS AND, IN MARCH 1974, ENTERED INTO A WORKWEEK AGREEMENT.
WHILE PROVIDING FOR A BASIC WORKWEEK OF MONDAY THROUGH FRIDAY, THE
AGREEMENT OTHERWISE DIFFERED EXTENSIVELY FROM THE PROPOSAL FOUND TO BE
NEGOTIABLE BY THE COUNCIL.
MORE PARTICULARLY, THE LOCAL PARTIES AGREED THAT THE BASIC WORKWEEK
FOR ALL FOOD INSPECTORS SHALL CONSIST OF FIVE CONSECUTIVE 8-HOUR DAYS,
MONDAY THROUGH FRIDAY. HOWEVER, THE AGREEMENT WAS SUBJECT TO VARIOUS
EXCEPTIONS FOR PLANTS THEN WORKING AN APPROVED TUESDAY THROUGH SATURDAY
SCHEDULE AND FOR STATE INSPECTED PLANTS.
AS TO HOURS, THE AGREEMENT WAS CONFINED TO SINGLE SHIFT AND MULTIPLE
SHIFT SLAUGHTER PLANTS AND DID NOT EXTEND TO FURTHER PROCESSING
OPERATIONS. IN SINGLE SHIFT PLANTS, THE PLANT OPERATING SCHEDULES WERE
TO BEGIN NOT EARLIER THAN 4:00 A.M. AND TERMINATE NOT LATER THAN 6:00
P.M. DEVIATIONS WERE PERMITTED UNDER LIMITED CONDITIONS, BUT NO
DEVIATION WAS TO RESULT IN A STARTING TIME BEFORE 4:00 A.M. IN MULTIPLE
SHIFT PLANTS, THE FIRST SHIFT WAS TO CONFORM TO THE REQUIREMENTS FOR A
SINGLE SHIFT PLANT AND THE SECOND SHIFT WAS TO START NOT LATER THAN 6:00
P.M. A BREAK OF NOT MORE THAN THREE HOURS WAS PERMITTED BETWEEN THE
FIRST AND SECOND SHIFTS.
ADDITIONALLY, THE AGREEMENT PROVIDED THAT ASSIGNMENTS FROM ONE PLANT
TO ANOTHER INVOLVING A CHANGE FROM A NIGHT SHIFT TO A DAY OR SINGLE
SHIFT, OR VICE VERSA FOR RELIEF PURPOSES, WAS TO BE EFFECTED ONLY IN
EMERGENCIES AND THEN ONLY WITH THE APPROVAL OF THE REGIONAL DIRECTOR OR
HIS SUBSTITUTE.
FINALLY, AS STATED BY AN AGENCY REPRESENTATIVE IN AN AFFIDAVIT
SUBMITTED TO THE COURT WITH RESPECT TO THE INTENT OF THE AGREEMENT
REACHED BETWEEN THE LOCAL PARTIES: /4/
THE AGREEMENT DOES NOT PRECLUDE PLANTS FROM SUBMITTING OTHER
SCHEDULES FOR APPROVAL. IF A
WORK SCHEDULE IS APPROVED, HOWEVER, WHICH IS OUTSIDE THE PERAMETERS
(SIC) ESTABLISHED IN THE
AGREEMENT, THE PLANT MUST REIMBURSE THE GOVERNMENT FOR THE TIME
INVOLVED AT OVERTIME
RATES. ANY TIME WORKED BY THE INSPECTOR WHICH EXCEEDS 8 HOURS PER
DAY, 40 HOURS PER WEEK, OR
IS OUTSIDE THE DAYS AND TIMES AGREED UPON, CONSTITUTES OVERTIME WORK
AND THE INSPECTOR IS
COMPENSATED AT PREMIUM PAY RATES.
ALSO ACCORDING TO THE AGENCY AFFIDAVIT, THE FOREGOING AGREEMENT WAS
PENDING APPROVAL BY THE PERSONNEL OFFICE OF THE DEPARTMENT OF
AGRICULTURE AT THE TIME OF THE COURT ACTION DISCUSSED BELOW.
C. OPINION AND ORDER RENDERED BY COURT. ON MARCH 22, 1974, A NUMBER
OF INDUSTRY ASSOCIATIONS, INCLUDING PRINCIPALLY THE NATIONAL BROILER
COUNCIL, INC. AND THE NATIONAL INDEPENDENT MEAT PACKERS ASSOCIATION
FILED A COMPLAINT IN THE U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF
VIRGINIA, ALEXANDRIA DIVISION, IN EFFECT SEEKING THE REVIEW AND REVERSAL
OF THE COUNCIL'S DECISION. /5/ ON APRIL 24, 1974, THE COURT ISSUED ITS
MEMORANDUM OPINION AND ORDER, REVERSING THE COUNCIL'S DECISION, BUT
REMANDING THE CASE TO THE COUNCIL FOR RECONSIDERATION, CONSISTENT WITH
THE COURT'S OPINION, BEFORE RENDERING ITS FINAL DECISION ON THE
ASSOCIATIONS' COMPLAINT.
IN ITS OPINION ON THE MERITS, /6/ THE COURT HELD, CONTRARY TO THE
CONTENTIONS OF THE ASSOCIATIONS, THAT NEITHER THE POULTRY INSPECTION
ACT, NOR THE MEAT INSPECTION ACT, PRECLUDED THE COUNCIL FROM RULING ON
THE NEGOTIABILITY OF THE UNION'S PROPOSAL.
THE COURT LIKEWISE REJECTED AN ASSOCIATION ARGUMENT THAT THE
NEGOTIATIONS ON THE UNION'S PROPOSAL, AS SUBMITTED TO THE COUNCIL, WOULD
BE INCONSISTENT WITH THE STATUTORY PROVISIONS RELATING TO WORKWEEK AND
WORK SCHEDULES IN 5 U.S.C. 6101 (WHICH AUTHORIZES DEPARTMENT HEADS TO
ESTABLISH BASIC WORKWEEKS AND WORK SCHEDULES SUBJECT TO CERTAIN
GUIDELINES). THE COURT ALSO NOTED THAT THE SPECIFIC PROPOSAL WAS
CONSISTENT WITH SUBSECTION 6101(A)(3)(B). HOWEVER, THE COURT ADDED THAT
THIS DOES NOT MEAN THAT NEGOTIABILITY COULD NOT RESULT IN AN
INCONSISTENT PROPOSAL. AND, WHILE THE COURT CONSTRUED THE COUNCIL'S
DECISION AS ALLOWING NEGOTIABILITY ONLY WITHIN THE OUTER LIMITS OF THAT
STATUTE, IT DIRECTED THE COUNCIL, ON REMAND, TO CLARIFY WHETHER THE
COUNCIL CONSIDERED 5 U.S.C. 6101 AND WHETHER THIS CONSTRUCTION BY THE
COURT WAS THAT INTENDED BY THE COUNCIL.
WITH RESPECT TO E.L. 11491, THE COURT AGREED WITH THE COUNCIL'S
DECISION THAT THE UNION'S PROPOSAL WAS NOT VIOLATIVE OF SECTION 12(B)(4)
OR 12(B)(5). THE COURT ALSO REJECTED THE ASSOCIATION ARGUMENT THAT
NEGOTIABILITY HERE CONSTITUTES NEGOTIATIONS WITH RESPECT TO THE
"MISSION" OR "BUDGET" OF THE AGENCY, WHICH ARE EXCEPTED FROM THE
AGENCY'S BARGAINING OBLIGATION UNDER SECTION 11(B). HOWEVER, THE COURT
QUESTIONED WHETHER NEGOTIABILITY WOULD NOT CONSTITUTE NEGOTIATING WITH
RESPECT TO MATTERS CONCERNING "TOURS OF DUTY" UNDER 11(B), IN THE LIGHT
OF THE COUNCIL'S PLUM ISLAND DECISION, /7/ AND WHILE THE COURT DID NOT
FIND THAT THE UNION'S PROPOSAL WAS SO EXCEPTED UNDER 11(B), IT
CONSIDERED THE COUNCIL'S DECISION IN THE PRESENT CASE TO BE A DEPARTURE
FROM ITS DECISION IN PLUM ISLAND AND, AS DISCUSSED BELOW, SUBJECT TO
REMAND FOR THIS REASON AMONG OTHERS.
THE COURT THEN TURNED TO THE FINAL ARGUMENT OF THE ASSOCIATIONS,
NAMELY THAT THE COUNCIL'S DECISION WAS ARBITRARY AND CAPRICIOUS, AND
FOUND MERIT IN THIS POSITION.
ACCORDING TO THE COURT, THE COUNCIL'S FINDING THAT THE UNION PROPOSAL
WOULD NOT VIOLATE THE STATUTORY RESTRICTIONS ON THE PAYMENT OF OVERTIME
IN 5 U.S.C. 5542(A), BECAUSE NOTHING IN THAT PROPOSAL WOULD REQUIRE THE
PAYMENT OF OVERTIME BEFORE THE STATUTORY MINIMUMS WERE MET, REFLECTS AN
INADEQUATE ANALYSIS BY THE COUNCIL. THE COURT REASONED THAT THE COUNCIL
WAS CONFUSING THE ISSUE OF "NEGOTIABILITY PER SE" WITH THE SPECIFIC
PROPOSAL SUBMITTED BY THE UNION FOR NEGOTIATION; AND THAT THE COUNCIL'S
FINDING CONFLICTS WITH AND FAILS TO TAKE INTO ACCOUNT THE AGENCY
AFFIDAVIT IN THE STIPULATED RECORD BEFORE THE COURT, WHICH INDICATES
THAT OVERTIME WOULD BE PAYABLE TO INSPECTORS (UNDER THE AGREEMENT
ENTERED INTO BY THE UNION AND AGENCY AFTER THE COUNCIL'S DECISION) EVEN
IF STATUTORY MINIMUMS WERE NOT MET, AND WHICH STATEMENT ACCORDS WITH
TYPICAL PRACTICE.
LIKEWISE, IN CONNECTION WITH THE COUNCIL'S RULING THAT THE UNION'S
PROPOSAL WAS NOT OUTSIDE THE AGENCY'S BARGAINING OBLIGATION UNDER
SECTION 11(B) OF THE ORDER, THE COURT FOUND THAT THE COUNCIL HAD
"INEXPLICABLY" DEPARTED FROM ITS PREVIOUS POLICIES AS EXEMPLIFIED IN THE
PLUM ISLAND DECISION, WHICH WAS SEEMINGLY A WEAKER CASE FOR
NONNEGOTIABILITY THAN THE PRESENT CASE AND WAS NOT EVEN CITED BY THE
COUNCIL IN THE DECISION HERE INVOLVED.
FINALLY, AND OF CENTRAL IMPORTANCE IN THE COURT'S JUDGMENT, CONGRESS,
IN ADOPTING THE INSPECTION ACTS, INTENDED THAT INSPECTION COSTS BE BORNE
PRIMARILY BY THE GOVERNMENT, WITH PROCESSORS BEARING A MINIMUM BURDEN;
AND YET THE COUNCIL HAD FAILED TO CONSIDER THE ECONOMIC IMPACT OF
NEGOTIABILITY AS EXEMPLIFIED BY THE EFFECT OF THE SUBSEQUENT AGREEMENT
BETWEEN THE UNION AND THE AGENCY, WHICH, ACCORDING TO UNCONTRADICTED
EVIDENCE BEFORE THE COURT, WOULD INCREASE THE OVERTIME COSTS TO BE PAID
BY INSPECTED ESTABLISHMENTS. /8/
IN MORE DETAIL, THE COURT REASONED THAT, IN THE CIRCUMSTANCES HERE
INVOLVED WHERE THE INDUSTRY IS DEPENDENT UPON THE PRESENCE OF THE
INSPECTORS, THE EXIGENCIES OF THE INDUSTRY SHOULD BE CONSIDERED IN
DETERMINING NEGOTIABILITY SINCE THE FACT OF NEGOTIABILITY OF THE UNION'S
PROPOSAL, AS HERE CONFIRMED, MAKES IT PROBABLE THAT THERE WILL BE AN
IMPACT ON SOME PROCESSORS. FURTHER, IN APPLYING THE BALANCING
REQUIREMENTS UNDER SECTION 12(B)(4), THE COUNCIL ERRED IN FAILING TO
CONSIDER THAT INDUSTRY, THOUGH NOT A PARTY TO THE NEGOTIATIONS, WILL
HAVE TO BEAR PART OF THE COSTS, AND IN FAILING PROPERLY TO CONSIDER EVEN
THE MEAGER STATISTICAL DATA SUBMITTED BY THE AGENCY. WHILE THE COURT
RECOGNIZED THAT THE COUNCIL, LACKING THE SURVEY IN EVIDENCE BEFORE THE
COURT, REALLY HAD NO IDEA OF THE POSSIBLE IMPACT OF ITS DECISION, AND
WHILE RELATIVELY FEW PROCESSORS MAY BE ADVERSELY AFFECTED, THE COURT WAS
OF THE OPINION THAT IT IS THE SMALL OPERATORS WHO MAY BE INJURED, AND
THAT SUCH IMPACT IS SIGNIFICANT IN DETERMINING WHETHER AS A MATTER OF
POLICY THE ISSUES SHOULD BE NEGOTIABLE.
IN ESSENCE, AS THE COURT STATED (382 F.SUPP.AT P. 328):
THIS IS NOT TO SAY THAT THE TIME ISSUES CANNOT BE HELD NEGOTIABLE,
BUT ONLY THAT THE FLRC
SHOULD SERIOUSLY WEIGH THE IMPACT OF NEGOTIABILITY ON THE INTERESTS
MOST LIKELY TO SUFFER
DIRECT ADVERSE EFFECTS BEFORE REACHING ITS DECISION.
IN CONCLUSION, AS ALREADY INDICATED, THE COURT REVERSED THE COUNCIL'S
DECISION. HOWEVER, BEFORE RENDERING A FINAL DECISION IN THE CASE, THE
COURT RULED THAT THE COUNCIL SHOULD FIRST RECONSIDER ITS OWN DECISION,
APPLYING ITS SPECIAL EXPERTISE IN THESE MATTERS, AND THE COURT REMANDED
THE CASE TO THE COUNCIL FOR CONSIDERATION IN A MANNER CONSISTENT WITH
THE COURT'S OPINION.
D. SUPPLEMENTAL PROCEEDINGS BEFORE COUNCIL ON REMAND. ON JUNE 17,
1974, THE COUNCIL NOTIFIED THE PARTIES TO THE CASE BEFORE THE COUNCIL
(I.E., THE AGENCY AND THE UNION) THAT, CONSISTENT WITH THE OPINION AND
ORDER OF THE COURT, THE RECORD WAS REOPENED, AND THAT THE RECORD BEFORE
THE COURT, SO FAR AS PERTINENT, WAS INCORPORATED HEREIN BY REFERENCE.
ADDITIONALLY, THE COUNCIL PROVIDED THE PARTIES AN OPPORTUNITY TO FILE
ANY ADDITIONAL DATA AND ARGUMENTS WHICH THEY DESIRED WITH RESPECT TO
THOSE MATTERS DIRECTED BY THE COURT TO BE FURTHER CONSIDERED BY THE
COUNCIL.
THE AGENCY THEREAFTER FILED A STATEMENT, INDICATING THAT IT WAS
RESTING ON ITS PREVIOUS SUBMISSIONS. THE UNION FILED A SUPPLEMENTAL
STATEMENT, IN THE NATURE OF A BRIEF, ON VARIOUS LEGAL ISSUES.
ALSO ON JUNE 17, 1974, THE COUNCIL FORWARDED TO THE COMPLAINANT
ASSOCIATIONS IN THE COURT ACTION A COPY OF THE ABOVE-MENTIONED LETTER TO
THE PARTIES; INVITED THE ATTENTION OF THE ASSOCIATIONS TO SECTION
2411.49 OF THE COUNCIL'S RULES OF PROCEDURE (5 CFR 2411.49) RELATING TO
AMICUS CURIAE SUBMISSIONS; /9/ ADVISED THE ASSOCIATIONS THAT THE
COUNCIL WOULD ENTERTAIN THEIR PETITION TO SUBMIT A BRIEF AS AMICI CURIAE
ON THOSE MATTERS DIRECTED BY THE COURT TO BE FURTHER CONSIDERED IN THE
REOPENED PROCEEDINGS; AND PROVIDED TIME FOR THE FILING OF SUCH PETITION
AND BRIEF.
NIMPA FILED A PETITION TO FILE A BRIEF AS AMICUS CURIAE (WHICH WAS
GRANTED BY THE COUNCIL), ALONG WITH A BRIEF AND SUPPORTING AFFIDAVITS,
AND LATER FILED A SUPPLEMENTAL BRIEF IN RESPONSE TO THE SUPPLEMENTAL
SUBMISSION OF THE UNION.
NBC SUBMITTED A MOTION, SEPARATELY CONCURRED IN BY NIMPA, SEEKING
INTERVENTION OF THE ASSOCIATIONS AS "PARTIES" IN THE RECONSIDERATION
PROCEEDINGS, ALONG WITH SUPPORTING DOCUMENTS. ON NOVEMBER 12, 1974, THE
COUNCIL DENIED THE ASSOCIATIONS' MOTION; AND, ON JANUARY 15, 1975, THE
COUNCIL DENIED A REQUEST FILED BY NBC FOR RECONSIDERATION AND REVERSAL
OF THIS RULING. COPIES OF THESE RULINGS BY THE COUNCIL, FULLY SETTING
FORTH THE REASONS FOR THE ACTIONS TAKEN, ARE ATTACHED HERETO AS APPENDIX
I AND APPENDIX II, RESPECTIVELY.
IN ITS RULING OF NOVEMBER 12, 1974, THE COUNCIL EXTENDED THE TIME FOR
NBC TO FILE A BRIEF AS AMICUS CURIAE, INCLUDING ANY DATA AND ARGUMENTS
WHICH NBC WISHED THE COUNCIL TO CONSIDER ON THE MATTERS DIRECTED BY THE
COURT TO BE FURTHER CONSIDERED BY THE COUNCIL. THEREAFTER, NBC FILED AN
"ECONOMIC IMPACT STUDY" AS AMICUS CURIAE IN THE CASE.
PURSUANT TO THE MANDATE OF THE COURT, THE COUNCIL HAS CAREFULLY
RECONSIDERED THIS CASE ON THE ENTIRE RECORD, INCLUDING THE SUBMISSIONS
BY THE PARTIES IN THE INITIAL PROCEEDING, THE PERTINENT RECORD IN THE
COURT ACTION, THE SUPPLEMENTAL STATEMENTS BY THE PARTIES, AND THE
ARGUMENTS, AFFIDAVITS, AND DATA SUBMITTED BY THE AMICI CURIAE, IN THE
REOPENED PROCEEDINGS. BASED THEREON, /10/ AND APPLYING ITS SPECIAL
KNOWLEDGE IN THESE MATTERS AS DIRECTED BY THE COURT, THE COUNCIL HAS
REACHED THE SUPPLEMENTAL CONCLUSIONS SET FORTH BELOW.
AS PREVIOUSLY INDICATED, THE COURT DIRECTED THAT THE COUNCIL CLARIFY
OR RECONSIDER ITS EARLIER DECISION PRINCIPALLY WITH REGARD TO: (1) THE
APPLICABILITY OF 5 U.S.C. 6101 AND 5542(A) TO THE NEGOTIABILITY DISPUTE;
(2) THE APPARENT CONFLICT OF THE INITIAL COUNCIL DECISION WITH THAT IN
THE PLUM ISLAND CASE, CONCERNING SECTION 11(B) OF THE ORDER; AND (3)
THE PROPRIETY OF A FINDING OF NEGOTIABILITY ON THE MATTER HERE INVOLVED,
PARTICULARLY UNDER SECTION 12(B)(4) OF THE ORDER, IN THE LIGHT OF
CONGRESSIONAL INTENT AND THE ECONOMIC IMPACT OF SUCH NEGOTIABILITY ON
THE INSPECTED ESTABLISHMENTS.
BEFORE DISCUSSING THESE QUESTIONS, IT WOULD SEEM ESSENTIAL, AND
IMPLEMENTAL OF THE COURT'S OPINION, FIRST TO CLARIFY THE PRECISE NATURE
OF THE NEGOTIABILITY DISPUTE PROCEEDING INVOKED BY THE UNION IN THE
INSTANT CASE, AND THE CONSTRAINTS IMPOSED ON THE COUNCIL IN SUCH A
PROCEEDING UNDER THE ORDER.
SECTION 11(A) OF THE ORDER PROVIDES IN PERTINENT PART:
SEC. 11. NEGOTIATION OF AGREEMENTS. (A) AN AGENCY AND A LABOR
ORGANIZATION THAT HAS BEEN
ACCORDED EXCLUSIVE RECOGNITION, THROUGH APPROPRIATE REPRESENTATIVES,
SHALL MEET AT REASONABLE
TIMES AND CONFER IN GOOD FAITH WITH RESPECT TO PERSONNEL POLICIES AND
PRACTICES AND MATTERS
AFFECTING WORKING CONDITIONS, SO FAR AS MAY BE APPROPRIATE UNDER
APPLICABLE LAWS AND
REGULATIONS . . . AND THIS ORDER . . .
SECTION 11(C) OF THE ORDER ESTABLISHES THE PROCEDURES AVAILABLE TO
THE PARTIES FOR RESOLVING DISPUTES AS TO THE NEGOTIABILITY OF ANY
SPECIFIC PROPOSALS UNDER THESE PROVISIONS IN SECTION 11(A). IN MORE
DETAIL, SECTION 11(C) READS IN RELEVANT PART:
(C) IF, IN CONNECTION WITH NEGOTIATIONS, AN ISSUE DEVELOPS AS TO
WHETHER A PROPOSAL IS
CONTRARY TO LAW, REGULATION, CONTROLLING AGREEMENT, OR THIS ORDER AND
THEREFORE NOT
NEGOTIABLE, IT SHALL BE RESOLVED AS FOLLOWS:
(1) AN ISSUE WHICH INVOLVES INTERPRETATION OF A CONTROLLING AGREEMENT
AT A HIGHER AGENCY
LEVEL IS RESOLVED UNDER THE PROCEDURES OF THE CONTROLLING AGREEMENT,
OR, IF NONE, UNDER AGENCY
REGULATIONS;
(4) A LABOR ORGANIZATION MAY APPEAL TO THE COUNCIL FOR A DECISION
WHEN--
(I) IT DISAGREES WITH AN AGENCY HEAD'S DETERMINATION THAT A PROPOSAL
WOULD VIOLATE
APPLICABLE LAW, REGULATION OF APPROPRIATE AUTHORITY OUTSIDE THE
AGENCY, OR THIS ORDER . . .
THE NATURE OF THESE PROCEEDINGS UNDER SECTION 11(C) IS FURTHER
EXPLICATED IN SECTION E.2. OF THE REPORT WHICH ACCOMPANIED E.O. 11491,
AS FOLLOWS: /11/
. . . WHERE DISPUTES DEVELOP IN CONNECTION WITH NEGOTIATIONS AT THE
LOCAL LEVEL AS TO
WHETHER A LABOR ORGANIZATION PROPOSAL IS CONTRARY TO LAW OR TO AGENCY
REGULATIONS OR
REGULATIONS OF OTHER APPROPRIATE AUTHORITIES AND THEREFORE NOT
NEGOTIABLE, THE LABOR
ORGANIZATION SHOULD HAVE THE RIGHT TO REFER SUCH DISPUTES IMMEDIATELY
TO AGENCY HEADQUARTERS
FOR AN EXPEDITIOUS DETERMINATION . . .
ISSUES AS TO WHETHER A PROPOSAL ADVANCED DURING NEGOTIATIONS, EITHER
AT THE LOCAL OR
NATIONAL LEVEL, IS NOT NEGOTIABLE, BECAUSE THE AGENCY HEAD HAS
DETERMINED THAT IT WOULD
VIOLATE ANY LAW, REGULATION OR RULE ESTABLISHED BY APPROPRIATE
AUTHORITY OUTSIDE THE AGENCY
MAY BE REFERRED TO THE FEDERAL LABOR RELATIONS COUNCIL FOR DECISION .
. .
THIS AUTHORITY OF THE COUNCIL TO RESOLVE NEGOTIABILITY DISPUTES IS
LIKEWISE ADVERTED TO IN SECTION 4(C)(2) OF THE ORDER, WHICH EMPOWERS THE
COUNCIL TO CONSIDER, "SUBJECT TO ITS REGULATIONS . . . APPEALS ON
NEGOTIABILITY ISSUES AS PROVIDED IN SECTION 11(C) OF THIS ORDER."
CONSISTENT WITH THIS AUTHORITY, THE COUNCIL HAS ISSUED DETAILED RULES OF
PROCEDURE GOVERNING THE CONDUCT OF A NEGOTIABILITY DISPUTE PROCEEDING (5
CFR PART 2411, SUBPART C, SECS. 2411.21 TO 2411.27), WHICH RULES
INCORPORATE AND IMPLEMENT THE PRECISE LANGUAGE OF SECTION 11(C).
WHILE THE PRESIDENT HAS AMENDED THE ORDER IN SUBSTANTIAL RESPECTS ON
A NUMBER OF OCCASIONS (E.G., E.O. 11616 OF AUGUST 26, 1971, AND E.O.
11838 OF FEBRUARY 6, 1975), THE RELEVANT PROVISIONS OF SECTION 11(C)
HAVE REMAINED UNCHANGED.
FROM THE OUTSET UNDER THESE PROVISIONS OF THE ORDER, THE COUNCIL HAS
REJECTED APPEALS ON NEGOTIABILITY DISPUTES WHICH DID NOT ARISE DURING
THE COURSE OF NEGOTIATIONS AND DID NOT IDENTIFY A CONTRACT PROPOSAL AND
THE REQUEST FOR, OR RENDERING OF, AN AGENCY DETERMINATION ON THAT
PROPOSAL. /12/ FURTHER, IN CASES SUCH AS HERE INVOLVED, THE COUNCIL HAS
LIMITED ITS DECISION TO SUSTAINING, SETTING ASIDE, OR REMANDING THE
AGENCY HEAD'S DETERMINATION ON THE SUBJECT PROPOSAL. /13/ AND, WHERE
THE COUNCIL HAS FOUND A PROPOSAL TO BE NEGOTIABLE, THE COUNCIL HAS,
SINCE ITS INCEPTION, UNIFORMLY CAUTIONED AS IT DID IN THE INSTANT CASE:
THIS DECISION SHALL NOT BE CONSTRUED AS EXPRESSING OR IMPLYING ANY
OPINION OF THE COUNCIL
AS TO THE MERITS OF THE UNION'S PROPOSAL. WE DECIDE ONLY THAT, AS
SUBMITTED BY THE UNION AND
BASED ON THE RECORD BEFORE US, THE PROPOSALS ARE PROPERLY SUBJECT TO
NEGOTIATION BY THE
PARTIES CONCERNED UNDER SECTION 11(A) OF EXECUTIVE ORDER 11491.
OF FURTHER SIGNIFICANCE, THE COUNCIL UNDER SECTION 2411.27 OF ITS
RULES (NOTE 13, SUPRA) DOES NOT "ENFORCE" ITS DECISION FINDING A
PROPOSAL TO BE NEGOTIABLE. INSTEAD, IF A PARTY FAILS TO NEGOTIATE ON
THE PROPOSAL FOUND TO BE NEGOTIABLE BY THE COUNCIL, SUCH FAILURE MAY BE
SUBJECT TO AN UNFAIR LABOR PRACTICE PROCEEDING INITIATED BY A PARTY
BEFORE THE ASSISTANT SECRETARY UNDER SECTION 6 OF THE ORDER; /14/ OR,
IF AN IMPASSE DEVELOPS AND THE PROPONENT IS UNWILLING TO ABANDON THE
PROPOSAL, THE MEDIATION AND IMPASSE PROCEDURES AVAILABLE UNDER SECTIONS
16 AND 17 OF THE ORDER MAY BE INVOKED BY A PARTY.
MOREOVER, THE COUNCIL DOES NOT RETAIN JURISDICTION IN A NEGOTIABILITY
CASE TO MONITOR THE SUBSEQUENT NEGOTIATIONS OF THE PARTIES, IN ORDER TO
ASSESS THE NEGOTIABILITY UNDER SECTION 11(A) OF THE ORDER OF ANY REVISED
PROPOSAL OR ANY AGREEMENT REACHED BY THE PARTIES. RATHER, IF A
NEGOTIABILITY DISPUTE ARISES AS TO ANY REVISED PROPOSAL, SUCH DISPUTE
MAY BE APPEALED TO THE COUNCIL UNDER SECTION 11(C)(4), AFTER AN AGENCY
HEAD DETERMINATION ON SUCH REVISED PROPOSAL. OR, IF AN AGREEMENT IS
REACHED ON A REVISED PROPOSAL, THE COUNCIL MAY BE CALLED UPON TO PASS
UPON THE VALIDITY OF THAT AGREEMENT IN A SEPARATE PROCEEDING, SUCH AS
FOLLOWING A GRIEVABILITY OR ARBITRABILITY DECISION BY THE ASSISTANT
SECRETARY, OR AFTER AN ARBITRATOR'S AWARD, UNDER SECTION 13 OF THE
ORDER.
TO REPEAT, THE COUNCIL'S AUTHORITY, IN A CASE SUCH AS HERE INVOLVED,
IS LIMITED UNDER SECTION 11(C)(4) TO A DECISION AS TO THE NEGOTIABILITY
OF A SPECIFIC PROPOSAL UPON WHICH AN AGENCY HEAD DETERMINATION HAS BEEN
RENDERED, I.E., A DECISION ON WHETHER THE "PROPOSAL WOULD VIOLATE
APPLICABLE LAW, REGULATION OF APPROPRIATE AUTHORITY OUTSIDE THE AGENCY,
OR THIS ORDER. THE COUNCIL, IN SUCH A CASE, IS NOT EMPOWERED EITHER TO
ENFORCE ITS DECISION OF NEGOTIABILITY OR TO MAINTAIN JURISDICTION TO
MONITOR ANY REVISED PROPOSAL SUBMITTED OR AGREED TO BY THE PARTIES.
WE TURN THEN TO CONSIDERATION OF THE PRECISE QUESTIONS REMANDED BY
THE COURT FOR CLARIFICATION OR REEXAMINATION.
1. APPLICABILITY OF 5 U.S.C. 6101 AND 5542(A) TO NEGOTIABILITY
DISPUTE.
(A) 5 U.S.C. 6101. AS ALREADY INDICATED, THE COURT REJECTED THE
ARGUMENT OF THE ASSOCIATIONS THAT NEGOTIATION ON THE UNION'S PROPOSAL
WOULD VIOLATE THE AUTHORITY OF THE SECRETARY OF AGRICULTURE TO SET THE
BASIC WORKWEEK AND WORK SCHEDULES UNDER 5 U.S.C. 6101, /15/ AND THE
COURT OBSERVED THAT THE SPECIFIC PROPOSAL WAS CONSISTENT WITH SUBSECTION
6101(A)(3)(B). HOWEVER, THE COURT DIRECTED THE COUNCIL TO CLARIFY
WHETHER THE COUNCIL HAD CONSIDERED THIS STATUTE, AND WHETHER THE COUNCIL
INTENDED TO ALLOW NEGOTIABILITY ONLY WITHIN THE OUTER LIMITS OF 5 U.S.C.
6101.
AS TO WHETHER THE COUNCIL CONSIDERED THE SUBJECT STATUTE, THE AGENCY
DID NOT RELY ON THIS STATUTE AS A GROUND FOR ITS DETERMINATION OF
NONNEGOTIABILITY AND THEREFORE NO SPECIFIC REFERENCE WAS MADE THERETO IN
THE COUNCIL'S DECISION. NEVERTHELESS THE COUNCIL WAS WELL AWARE OF 5
U.S.C. 6101 (INDEED, THE STATUTE WAS REFERRED TO BY THE UNION IN SUPPORT
OF ITS APPEAL) AND THE COUNCIL, LIKE THE COURT, CONSIDERED THE UNION'S
PROPOSAL MANIFESTLY CONSISTENT WITH THE PROVISIONS OF THAT STATUTE. THE
COUNCIL'S DECISION IS HEREBY CLARIFIED TO REFLECT SUCH FINDING.
AS TO WHETHER THE COUNCIL INTENDED TO ALLOW NEGOTIABILITY ONLY WITHIN
THE OUTER LIMITS OF THE SUBJECT STATUTE, SECTION 11(A) OF THE ORDER
LIMITS THE SCOPE OF NEGOTIATIONS, IN PART, TO "PERSONNEL POLICIES AND
PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS, SO FAR AS MAY BE
APPROPRIATE UNDER APPLICABLE LAWS. . . " THE COUNCIL DID NOT PRESUME TO
GRANT AN EXCEPTION FROM THIS BASIC REQUIREMENT OF THE ORDER IN ITS
DECISION IN THE INSTANT CASE. HENCE, IF A NEGOTIABILITY DISPUTE BETWEEN
THESE PARTIES CONCERNING A REVISED PROPOSAL WERE PRESENTED TO THE
COUNCIL IN A NEW PROCEEDING UNDER SECTION 11(C), OR IF THE PARTIES
REACHED AGREEMENT ON A REVISED PROPOSAL AND ITS VALIDITY BECAME AN ISSUE
BEFORE THE COUNCIL IN A SEPARATE PROCEEDING SUCH AS UNDER SECTION 13 OF
THE ORDER, THE COUNCIL WOULD AGAIN ASSESS NEGOTIABILITY OR VALIDITY IN
THE LIGHT OF APPLICABLE LAWS, INCLUDING 5 U.S.C. 6101, AS REQUIRED BY
THE ORDER.
THEREFORE, TO THE EXTENT THAT THE COUNCIL INTENDED ITS DECISION TO BE
FULLY CONSONANT WITH THE CONTINUING OPERATIVE REQUIREMENTS OF SECTION
11(A), THE COUNCIL WAS "ALLOWING NEGOTIABILITY ONLY WITHIN THE OUTER
LIMITS OF 5 U.S.C. 6101, AND THE COUNCIL'S DECISION IS SO CLARIFIED.
(B) 5 U.S.C. 5542(A). THE COUNCIL HELD THAT THE UNION'S PROPOSAL, AS
SUBMITTED TO THE COUNCIL, WAS NOT VIOLATIVE OF 5 U.S.C. 5542(A), SINCE
NOTHING IN THE PROPOSAL WOULD REQUIRE OVERTIME PAY BEFORE THE STATUTORY
MINIMUMS HAD BEEN MET. /16/ THE COURT REMANDED THIS RULING FOR
RECONSIDERATION BECAUSE (1) THE COUNCIL APPEARED TO BE CONFUSING
"NEGOTIABILITY PER SE" WITH NEGOTIABILITY OF THE UNION'S SPECIFIC
PROPOSAL BEFORE THE COUNCIL; AND (2) THE COUNCIL FAILED TO TAKE INTO
ACCOUNT THE AGENCY'S STIPULATED STATEMENT BEFORE THE COURT, WITH RESPECT
TO THE SUBSEQUENT AGREEMENT OF THE LOCAL PARTIES, WHICH STATEMENT
INDICATED THAT THE INSPECTORS WOULD BE ENTITLED TO OVERTIME EVEN IF THE
STATUTORY MINIMUMS WERE NOT MET AND WHICH STATEMENT, ACCORDING TO THE
COURT, IS IN ACCORD WITH TYPICAL PRACTICE.
AS TO (1), THE COUNCIL, FOR REASONS ALREADY FULLY SET FORTH, WAS
CONFINED IN ITS AUTHORITY UNDER SECTION 11(C)(4), IN PERTINENT PART, TO
DECIDING WHETHER THE UNION'S "PROPOSAL WOULD VIOLATE APPLICABLE LAW."
CONSISTENT WITH THESE LIMITATIONS ON ITS AUTHORITY, AND ITS PAST
PRACTICE IN LIKE CASES, THE COUNCIL DECIDED ONLY THAT THE UNION'S
SPECIFIC PROPOSAL, AS SUBMITTED TO THE COUNCIL AND ON THE RECORD THEN
BEFORE THE COUNCIL, WAS NOT VIOLATIVE OF 5 U.S.C. 5542(A).
AS TO (2), THE STATEMENT OF THE AGENCY BEFORE THE COURT AS TO THE
INTENT OF THE PARTIES WAS LIMITED TO THE REVISED PROPOSAL ON WHICH
TENTATIVE AGREEMENT WAS REACHED AFTER THE COUNCIL'S DECISION. THE
LANGUAGE OF THE UNION'S PROPOSAL BEFORE THE COUNCIL DID NOT REFLECT ANY
REQUIRED PAYMENT OF OVERTIME BEFORE THE STATUTORY MINIMUMS WERE MET;
AND NEITHER THE UNION'S APPEAL NOR THE AGENCY'S SUBMISSION TO THE
COUNCIL REFLECTED ANY SUCH INTENT BY THE UNION IN ITS PROPOSAL.
LIKEWISE, THE COUNCIL WAS NOT INFORMED OF ANY ESTABLISHED PRACTICE OF
VIOLATING THE SUBJECT STATUTE OR OF THE UNION'S INTENT TO MAINTAIN ANY
SUCH UNLAWFUL PRACTICE UNDER THE PROPOSAL SUBMITTED TO THE COUNCIL.
THEREFORE, THE COUNCIL WAS COMPELLED TO FIND THAT THE SUBJECT STATUTE
WAS NOT A BAR TO NEGOTIATION ON THE UNION'S PROPOSAL. NOTHING IN THE
REOPENED RECORD NOW BEFORE THE COUNCIL REQUIRES A CONTRARY DECISION WITH
RESPECT TO THE VALIDITY OF THAT PROPOSAL UNDER 5 U.S.C. 5542(A). /17/
IN SO CONCLUDING, THE COUNCIL MUST EMPHASIZE THAT IT IS NOT HERE
PASSING UPON THE VALIDITY OF THE REVISED PROPOSAL WHICH WAS NOT DISPUTED
BY THE AGENCY AND IS PART OF THE SUBSEQUENT AGREEMENT OF THE LOCAL
PARTIES DESCRIBED AT PP. 3-4, SUPRA. SINCE THE AGENCY HEAD DID NOT
DETERMINE THAT THE REVISED PROPOSAL WAS INVALID, AND SINCE THERE HAS
BEEN NO APPEAL BY THE UNION FROM SUCH A DETERMINATION, THE COUNCIL IS
WITHOUT AUTHORITY TO RESOLVE THE VALIDITY OF THE REVISED PROPOSAL IN A
PROCEEDING UNDER SECTION 11(C)(4) OF THE ORDER. HOWEVER, IF THAT ISSUE
IS SUBSEQUENTLY RAISED BEFORE THE COUNCIL IN AN APPROPRIATE PROCEEDING,
THE COUNCIL WILL STRICTLY APPLY THE SUBJECT STATUTE IN A MANNER
CONSISTENT WITH THE LAW AND WITH THE COUNCIL'S OBLIGATIONS UNDER THE
ORDER. /18/
ACCORDINGLY, UPON CAREFUL RECONSIDERATION AS DIRECTED BY THE COURT,
THE COUNCIL REAFFIRMS ITS EARLIER RULING THAT THE UNION'S PROPOSAL, AS
SUBMITTED TO THE COUNCIL IN THE INSTANT CASE, WAS NOT SHOWN TO BE
VIOLATIVE OF 5 U.S.C. 5542(A).
2. APPLICABILITY OF PLUM ISLAND DECISION TO PRESENT CASE. THE COURT
AGREED WITH THE COUNCIL THAT THE UNION'S PROPOSAL DID NOT CONCERN THE
AGENCY'S "MISSION" OR "BUDGET," WHICH ARE OUTSIDE THE AGENCY'S
OBLIGATION TO NEGOTIATE UNDER SECTION 11(B) OF THE ORDER. HOWEVER, THE
COURT NOTED OTHER MATTERS EXCEPTED FROM THE AGENCY'S BARGAINING
OBLIGATION UNDER SECTION 11(B), NAMELY: "THE NUMBERS, TYPES, AND GRADES
OF POSITIONS OR EMPLOYEES ASSIGNED TO AN ORGANIZATIONAL UNIT, WORK
PROJECT OR TOUR OF DUTY." THE COURT IN EFFECT THEN DIRECTED THE COUNCIL
TO EXPLAIN (A) WHY THE PLUM ISLAND DECISION (NOTE 7, SUPRA) ON THESE
PROVISIONS WAS NOT EVEN CITED BY THE COUNCIL; AND (B) WHY THE COUNCIL
HAD DEPARTED FROM THE POLICIES EXEMPLIFIED IN PLUM ISLAND IN RESOLVING
THE NEGOTIABILITY DISPUTE INVOLVED IN THE PRESENT CASE.
WITH RESPECT TO (A), THE COUNCIL DID NOT ADVERT TO PLUM ISLAND IN ITS
DECISION IN THE INSTANT CASE BECAUSE THE AGENCY HERE (WHICH, AS IN PLUM
ISLAND, IS PART OF THE DEPARTMENT OF AGRICULTURE) RELIED SOLELY ON THE
"MISSION" AND "BUDGET" PROVISIONS OF 11(B) IN ITS POSITION BEFORE THE
COUNCIL. THE AGENCY DID NOT RELY ON THE "STAFFING PATTERN" PROVISIONS
OF SECTION 11(B), NOTED BY THE COURT, WHICH WERE CENTRAL TO THE
DISPOSITION OF THE NEGOTIABILITY DISPUTE IN THE PLUM ISLAND CASE. IN
OTHER WORDS, THE AGENCY ITSELF TACITLY RECOGNIZED THAT THE PLUM ISLAND
DECISION, AS EXPLICATED BY THE COUNCIL IN THE CHARLESTON CASE, FLRC NO.
71A-52, (NOTE 3, SUPRA) AND RELATED DECISIONS, /19/ WAS WITHOUT
CONTROLLING SIGNIFICANCE IN THE PRESENT CASE. THE COUNCIL AGREED WITH
THAT CONCLUSION AND BELIEVED THAT NO USEFUL PURPOSE WOULD BE SERVED BY
RAISING, SUA SPONTE, THE "STRAW MAN" OF PLUM ISLAND IN THE PRESENT
DECISION. THEREFORE, THE PLUM ISLAND CASE WAS NOT CITED, AND WAS NOT
DISCUSSED, IN THIS CASE.
WITH RESPECT TO (B), THE COUNCIL IS OF THE OPINION THAT ITS DECISION
HERE WAS FULLY CONSISTENT WITH ITS INTERPRETATION AND APPLICATION OF THE
PROVISIONS OF SECTION 11(B) IN THE PLUM ISLAND CASE.
AS WILL BE RECALLED, THE AGENCY IN PLUM ISLAND OPERATED A RESEARCH
FACILITY AND, IN ORDER TO PROVIDE FOR ROUND-THE-CLOCK OPERATION AND
MAINTENANCE, IT EMPLOYED FOUR CREWS OF 11 MEN EACH, WHO WORKED ON THREE
ROTATING, WEEKLY SHIFTS AND WHO SUPPLEMENTED A REGULAR, ONE-SHIFT CREW
OF MAINTENANCE EMPLOYEES. THE AGENCY HAD DECIDED TO ELIMINATE THE
ENTIRE THIRD SHIFT IN ONE OF ITS TWO LABORATORY BUILDINGS AND TO
ESTABLISH TWO NEW FIXED SHIFTS WORKING ON A FIVE DAY BASIS. WHILE THE
TOTAL NUMBER OF WORKERS EMPLOYED BY THE AGENCY WOULD NOT BE REDUCED
THEREBY, THE CHANGES IN THE STAFFING ON THE FIRST AND SECOND SHIFT
RESULTING FROM THE TERMINATION OF THE ROTATING THIRD SHIFT WERE INTENDED
BY THE AGENCY TO RESULT IN IMPROVED STAFFING OF THOSE TWO SHIFTS.
HOWEVER, THE UNION PROPOSED THAT ANY SUCH CHANGES IN TOURS OF DUTY (AND
HENCE THE STAFFING OF THE NEW FIXED FIRST AND SECOND SHIFTS AND THE
RESTAFFING OF THE ROTATING SHIFTS) BE PROSCRIBED UNLESS NEGOTIATED WITH
THE UNION.
THE COUNCIL HELD THAT THE UNION'S PROPOSAL WAS EXCEPTED FROM THE
AGENCY'S OBLIGATION TO BARGAIN UNDER SECTION 11(B), AND, MORE
PARTICULARLY UNDER THE EXCLUSION IN THAT SECTION RELATING TO "THE
NUMBERS, TYPES, AND GRADES OF POSITIONS OR EMPLOYEES ASSIGNED TO AN
ORGANIZATIONAL UNIT, WORK PROJECT OR TOUR OF DUTY." AS OBSERVED BY THE
COUNCIL, THIS LANGUAGE OF THE ORDER, ACCORDING TO SECTION E.1. OF THE
REPORT ACCOMPANYING E.O. 11491, CLARIFIED THE RIGHT OF AN AGENCY TO
DETERMINE THE "STAFFING PATTERNS" FOR ITS ORGANIZATION AND FOR
ACCOMPLISHING ITS MISSION. THE COUNCIL FOUND IN SUBSTANCE THAT THE
NUMBER AND DURATION OF THE WORK SHIFTS, OR TOURS OF DUTY, AS INTENDED TO
BE CHANGED BY THE AGENCY IN THAT CASE, WERE INTEGRALLY RELATED TO AND
DETERMINATIVE OF THE NUMBERS AND TYPES OF EMPLOYEES ASSIGNED TO THOSE
TOURS OF DUTY OF THE AGENCY; AND THEREFORE THAT, UNDER THE FACTS OF
THAT CASE, THE UNION'S PROPOSAL TO BARGAIN ON SUCH CHANGES WAS
NONNEGOTIABLE UNDER SECTION 11(B).
THE PLUM ISLAND DECISION WAS SUBSEQUENTLY EXPLAINED AND DISTINGUISHED
IN THE CHARLESTON CASE, FLRC NO. 71A-52 (NOTE 3, SUPRA). THERE, THE
FACILITY PROVIDED ROUND-THE-CLOCK SERVICE TO THE FLEET, SEVEN DAYS A
WEEK. THE UNION PROPOSED TO ESTABLISH A BASIC WORKWEEK OF FIVE (5)
EIGHT (8) HOUR DAYS, MONDAY THROUGH FRIDAY FOR EMPLOYEES (OTHER THAN
THOSE HAVING JOBS REQUIRED TO BE PERFORMED ON A CONTINUOUS BASIS OR
DIRECTLY RELATED TO CERTAIN FUNCTIONS PERFORMED AT AN ACTIVITY OPERATING
ON A CONTINUOUS BASIS). THE AGENCY, IN ADDITION TO ITS CONTENTIONS THAT
THE PROPOSAL WOULD REQUIRE THE AGENCY TO PAY AVOIDABLE OVERTIME FOR
SATURDAY AND SUNDAY WORK, ARGUED THAT NEGOTIATION WAS NOT REQUIRED UNDER
SECTION 11(B), BASED ON THE PLUM ISLAND CASE. THE COUNCIL REJECTED THIS
CONTENTION, STATING (AT PP. 4-5 OF COUNCIL DECISION):
2. SECTION 11(B). THE AGENCY MISTAKENLY RELIES ON THE COUNCIL'S
PLUM ISLAND DECISION AS A
BASIS FOR DECLARING THE PROPOSAL NON-NEGOTIABLE UNDER THIS SECTION OF
THE ORDER. IN PLUM
ISLAND, WE POINTED OUT THAT THE PROVISION OF SECTION 11(B) IN
QUESTION WAS INTENDED TO APPLY
TO AN AGENCY'S RIGHT TO ESTABLISH STAFFING PATTERNS FOR ITS
ORGANIZATION AND THE
ACCOMPLISHMENT OF ITS WORK, AS EXPLAINED IN THE REPORT ACCOMPANYING
EXECUTIVE ORDER 11491. IN
THE FACTS OF THAT CASE, WHICH DEAL WITH A SITUATION OF
ROUND-THE-CLOCK OPERATIONS AND A WORK
SCHEDULE OF ROTATING TOURS OF DUTY, THE NUMBER AND DURATION OF THE
TOURS WERE INTEGRALLY
RELATED TO THE NUMBERS AND TYPES OF WORKERS ASSIGNED TO THOSE TOURS.
TOGETHER THEY DETERMINED
THE AGENCY'S STAFFING PATTERN FOR ACCOMPLISHING THE WORK. THUS, THE
UNION'S PROPOSAL IN THAT
CASE, WHICH WOULD REQUIRE BARGAINING ON ANY CHANGES IN EXISTING TOURS
OF DUTY, WOULD ALSO HAVE
ESTABLISHED AN OBLIGATION TO BARGAIN ON ANY CHANGES IN THE NUMBERS
AND TYPES OF WORKERS
ASSIGNED, MATTERS WHICH SECTION 11(B) EXPRESSLY EXCLUDED FROM SUCH
OBLIGATION.
IN THE INSTANT CASE, THE CIRCUMSTANCES IN THE BARGAINING UNIT AND THE
UNION'S PROPOSAL ARE
MATERIALLY DIFFERENT FROM THOSE IN PLUM ISLAND. THERE IS NO
INDICATION THAT THE PROPOSAL TO
AFFIRM MONDAY THROUGH FRIDAY AS THE BASIC WORKWEEK FOR UNIT EMPLOYEES
(OTHER THAN THOSE WHOSE
JOBS ARE DIRECTLY RELATED TO CONTINUOUS OPERATIONS AND CERTAIN NAMED
FUNCTIONS OF THE
ACTIVITY) WOULD REQUIRE BARGAINING ON THE 'NUMBERS, TYPES, AND GRADES
OF POSITIONS OR
EMPLOYEES ASSIGNED TO AN ORGANIZATIONAL UNIT, WORK PROJECT OR TOUR OF
DUTY.' FOR IT DOES NOT
APPEAR THAT THE BASIC WORKWEEK FOR EMPLOYEES HERE PROPOSED IS
INTEGRALLY RELATED IN ANY MANNER
TO THE NUMBERS AND TYPES OF EMPLOYEES INVOLVED. ABSENT THIS INTEGRAL
RELATIONSHIP TO STAFFING
PATTERN, THE PROPOSAL DOES NOT CONFLICT WITH SECTION 11(B), AND PLUM
ISLAND IS
INAPPOSITE. (FOOTNOTE OMITTED.)
THE APPLICATION OF SECTION 11(B), AS INTERPRETED AND APPLIED IN PLUM
ISLAND AND CHARLESTON, FLRC NO. 71A-52, WAS AGAIN CONSIDERED BY THE
COUNCIL WITH REGARD TO A BASIC WORKWEEK AND WORK SCHEDULE PROPOSAL IN
ANOTHER CHARLES CASE, FLRC NO. 72A-35 (NOTE 19, SUPRA). THERE, THE
UNION'S PROPOSAL, COVERING THE AGENCY'S WAGE SYSTEM EMPLOYEES, READ AS
FOLLOWS:
BASIC WORK WEEKS OTHER THAN MONDAY THROUGH FRIDAY MAY BE ESTABLISHED
FOR EMPLOYEES WHOSE
JOBS ARE DIRECTLY RELATED TO SERVICE-TYPE FUNCTIONS WHICH MUST BE
PERFORMED MORE THAN FIVE
DAYS A WEEK AND CANNOT BE PERFORMED DURING THE NORMAL WORKING HOURS
OR DAYS (MONDAY THROUGH
FRIDAY) OF THE UNIT AS SET FORTH IN SECTIONS 2. AND 6. OF THIS
ARTICLE. THE EMPLOYER AGREES
THAT THE NUMBER OF SUCH EMPLOYEES ASSIGNED TO A WORK WEEK OF OTHER
THAN MONDAY THROUGH FRIDAY
WILL BE THE MINIMUM NECESSARY TO PERFORM THE SERVICE-TYPE FUNCTIONS
AND SUCH ASSIGNMENTS WILL
NOT BE UTILIZED TO MEET TEMPORARY PEAK WORKLOADS . . . THE EMPLOYER
AGREES TO SCHEDULE THE
NONWORK DAYS OF EMPLOYEES SO ASSIGNED SUCH THAT WHENEVER PRACTICABLE
THEY WILL BE
CONSECUTIVE. . .
ONCE MORE, THE AGENCY CLAIMED THAT BARGAINING WAS NOT REQUIRED UNDER
SECTION 11(B) AND, IN THIS INSTANCE, THE COUNCIL UPHELD THE CONTENTION
IN PART AND REJECTED IT IN PART, BASED ON AN APPLICATION OF BOTH THE
PLUM ISLAND AND CHARLESTON, FLRC NO. 71A-52 DECISIONS. AFTER QUOTING AT
LENGTH FROM THE EARLIER CHARLESTON CASE, THE COUNCIL SAID (AT PP. 4-5 OF
COUNCIL DECISION):
APPLYING THE PRINCIPLES ENUNCIATED IN (THE CHARLESTON CASE, FLRC NO.
71A-52) TO THE UNION'S
BASIC WORKWEEK PROPOSAL IN THIS CASE, WE CONCLUDE THAT THE PROPOSAL
IS NEGOTIABLE WITH THE
EXCEPTION OF THAT SENTENCE IN THE PROPOSAL WHICH READS:
THE EMPLOYER AGREES THAT THE NUMBER OF SUCH EMPLOYEES ASSIGNED TO A
WORK WEEK OF OTHER THAN
MONDAY THROUGH FRIDAY WILL BE THE MINIMUM NECESSARY TO PERFORM THE
SERVICE-TYPE FUNCTIONS AND
SUCH ASSIGNMENTS WILL NOT BE UTILIZED TO MEET TEMPORARY PEAK
WORKLOADS.
THIS EXCEPTED SENTENCE IS INTEGRALLY RELATED TO THE NUMBERS OF
EMPLOYEES THAT THE ACTIVITY
MIGHT ASSIGN TO PARTICULAR TOURS OF DUTY. THEREFORE, UNDER SECTION
11(B) OF THE ORDER, THIS
SENTENCE OF THE PROPOSAL IS ONE ABOUT WHICH THE AGENCY IS NOT UNDER
AN OBLIGATION TO
BARGAIN. THE REMAINDER OF THE PROPOSAL, HOWEVER, IS NOT INTEGRALLY
RELATED TO STAFFING
PATTERNS AND HENCE IS NOT EXCLUDED FROM THE ACTIVITY'S BARGAINING
OBLIGATION.
SHORTLY AFTER THE ISSUANCE OF ITS DECISION IN CHARLESTON, FLRC NO.
72A-35, THE COUNCIL CONSIDERED THE NEGOTIABILITY OF PROPOSALS CONCERNING
THE BASIC WORKWEEK AND HOURS OF DUTY FOR A UNIT OF PHYSICIANS IN THE
LEBANON VA HOSPITAL CASE, FLRC NO. 72A-41 (NOTE 19, SUPRA). WHILE THE
COUNCIL FOUND THAT THE SUBJECT TOUR OF DUTY PROPOSALS WERE NONNEGOTIABLE
UNDER SECTION 11(A) BY REASON OF THE CONFLICT OF THE PROPOSALS WITH
HIGHER LEVEL AGENCY REGULATIONS, THE COUNCIL TOOK THE OCCASION TO
REAFFIRM CHARLESTON, FLRC NO. 71A-52, STATING (AT P. 3 OF COUNCIL
DECISION):
AT THE OUTSET, THE CIRCUMSTANCES IN THE PRESENT CASE MUST BE
CAREFULLY DISTINGUISHED FROM
THOSE IN (CHARLESTON, FLRC NO. 71A-52), WHERE THE COUNCIL HELD THAT
THE AGENCY WAS OBLIGATED
TO NEGOTIATE WITH THE UNION CONCERNING A UNION PROPOSAL ON THE BASIC
WORKWEEK AND HOURS OF
WORK OF UNIT EMPLOYEES. IN THAT CASE THERE WAS NO SHOWING BY THE
AGENCY THAT THE BASIC
WORKWEEK FOR THE EMPLOYEES INVOLVED WAS INTEGRALLY RELATED TO THE
NUMBERS AND TYPES OF
EMPLOYEES IN QUESTION, WHICH WOULD HAVE EXCEPTED THE PROPOSAL FROM
THE AGENCY'S BARGAINING
OBLIGATION UNDER SECTION 11(B) OF THE ORDER . . . WE ADHERE TO THAT
DECISION.
IN SUMMARY, THEREFORE, AS DECIDED BY THE COUNCIL IN PLUM ISLAND,
CHARLESTON, FLRC NO. 71A-52, AND RELATED CASES, A PROPOSAL RELATING TO
THE BASIC WORKWEEK AND HOURS OF DUTY OF EMPLOYEES IS NOT EXCEPTED FROM
AN AGENCY'S BARGAINING OBLIGATION UNDER SECTION 11(B) UNLESS, BASED ON
THE SPECIAL CIRCUMSTANCES OF A PARTICULAR CASE (AS IN PLUM ISLAND), THE
PROPOSAL IS INTEGRALLY RELATED TO AND CONSEQUENTLY DETERMINATIVE OF THE
STAFFING PATTERNS OF THE AGENCY, I.E., THE NUMBERS, TYPES, AND GRADES OF
POSITIONS OR EMPLOYEES ASSIGNED TO AN ORGANIZATIONAL UNIT, WORK PROJECT
OR TOUR OF DUTY OF THE AGENCY.
APPLYING THESE PRINCIPLES TO THE UNION'S PROPOSAL CONCERNING THE
BASIC WORKWEEK AND THE STARTING TIMES OF THAT WORKWEEK FOR THE AGENCY'S
FOOD INSPECTORS, AS SUBMITTED TO THE COUNCIL FOR RESOLUTION IN THIS
CASE, THE PROPOSAL IS CLEARLY NOT EXCLUDED FROM THE AGENCY'S OBLIGATION
TO NEGOTIATE UNDER THE "STAFFING PATTERN" PROVISIONS OF SECTION 11(B).
FOR UNLIKE IN PLUM ISLAND, THE UNION'S PROPOSAL HERE IS NOT SHOWN TO BE
INTEGRALLY RELATED TO AND DETERMINATIVE OF THE TYPES OF EMPLOYEES
ASSIGNED TO THE PROPOSED TOURS OF DUTY OF THE AGENCY: ALL EMPLOYEES ON
EACH TOUR IN THE PRESENT CASE WOULD CONTINUE TO BE FOOD INSPECTORS;
WHEREAS IN PLUM ISLAND THE UNION PROPOSAL EXTENDED TO CHANGES IN THE
TYPES OF THE EMPLOYEES TO BE ASSIGNED TO THE NEW FIXED SHIFTS AND THE
ROTATING SHIFTS, WHICH THE AGENCY INTENDED TO RESULT IN IMPROVED
STAFFING. ALSO UNLIKE IN PLUM ISLAND, THE SUBJECT PROPOSAL, SO FAR AS
APPEARS IN THE RECORD, WOULD NOT BE INTEGRALLY RELATED TO AND
DETERMINATIVE OF THE NUMBERS OF EMPLOYEES ASSIGNED TO THE PROPOSED
TOURS: THE PROPOSED CHANGES HERE RELATE ONLY TO THE DAYS OF THE BASIC
WORKWEEK AND THE RANGE OF STARTING TIMES OF THAT WORKWEEK, WHICH WOULD
IMPACT ON OVERTIME, BUT NOT ON THE NUMBERS OF EMPLOYEES ASSIGNED TO
TOURS; WHEREAS IN PLUM ISLAND THE UNION'S PROPOSAL WOULD HAVE REQUIRED
BARGAINING ON THE ELIMINATION OF THE ROTATING THIRD SHIFT IN ONE
LABORATORY, AND THE REASSIGNMENT OF EMPLOYEES TO TWO NEW FIXED SHIFTS
AND TO THE ROTATING SHIFTS, WHICH OF NECESSITY INVOLVED THE NUMBERS OF
EMPLOYEES ASSIGNED TO PARTICULAR TOURS OF DUTY. /20/
TO REPEAT, THE COUNCIL IS OF THE VIEW THAT ITS DECISION IN THE
PRESENT CASE IS FULLY CONSISTENT WITH THE POLICIES EXEMPLIFIED IN PLUM
ISLAND AND, UPON RECONSIDERATION, THE COUNCIL REAFFIRMS ITS HOLDING THAT
THE PROPOSAL HERE INVOLVED IS NOT EXCEPTED FROM THE AGENCY'S OBLIGATION
TO BARGAIN UNDER SECTION 11(B) OF THE ORDER.
3. NEGOTIABILITY OF UNION PROPOSAL IN LIGHT OF CONGRESSIONAL INTENT
AND THE ECONOMIC IMPACT OF SUCH NEGOTIABILITY ON INSPECTED
ESTABLISHMENTS. THE COURT UPHELD THE FINDING OF THE COUNCIL THAT THE
UNION'S PROPOSAL BEFORE THE COUNCIL WAS NOT RENDERED NONNEGOTIABLE AS
VIOLATIVE OF THE MEAT AND POULTRY INSPECTION ACTS WHICH ACTS REQUIRE THE
INSPECTED ESTABLISHMENTS TO REIMBURSE THE GOVERNMENT FOR OVERTIME PAY OF
THE INSPECTORS.
LIKEWISE, THE COURT AGREED WITH THE COUNCIL THAT THE PROPOSAL WAS NOT
VIOLATIVE OF THE LITERAL LANGUAGE OF SECTION 12(B)(4) WHICH PROVIDES
THAT THE AGENCY RETAINS THE RIGHT, IN CONFORMITY WITH APPLICABLE LAWS
AND REGULATIONS, "TO MAINTAIN THE EFFICIENCY OF THE GOVERNMENT
OPERATIONS ENTRUSTED TO THEM." IN THE LATTER REGARD, AS THE COURT
STATED, "THE PLAINTIFFS' (INDUSTRY'S) EFFICIENCY OR ECONOMY MAY WELL BE
AFFECTED BY OVERTIME EXPENSES RESULTING FROM NEGOTIABILITY, BUT IT IS
HARD TO CONCEIVE OF THIS AFFECTING THE EFFICIENCY OF THE USDA."
(UNDERSCORING IN ORIGINAL.)
NEVERTHELESS, AS ALREADY INDICATED, THE COURT DIRECTED THAT THE
COUNCIL RECONSIDER, AS A MATTER OF POLICY, THE NEGOTIABILITY OF THE
BASIC WORKWEEK AND STARTING TIMES OF THE INSPECTORS, IN VIEW OF THE
CONGRESSIONAL INTENT TO MINIMIZE THE BURDEN OF INSPECTION COSTS ON THE
INDUSTRY, AND THE ECONOMIC IMPACT OF NEGOTIABILITY PARTICULARLY ON SMALL
OPERATORS AS EXEMPLIFIED BY INCREASED OVERTIME COSTS WHICH WOULD BE
REQUIRED UNDER THE SUBSEQUENT AGREEMENT OF THE PARTIES. STATED
OTHERWISE, IN TERMS OF THE ORDER, THE COURT DIRECTED THE COUNCIL
SERIOUSLY TO WEIGH SUCH CIRCUMSTANCES AMONG THE FACTORS TO BE BALANCED
UNDER THE CHARLESTON DECISION, FLRC NO. 71A-52 (NOTE 3, SUPRA), IN
DETERMINING THE APPLICABILITY OF SECTION 12(B)(4) TO THE NEGOTIABILITY
ISSUE, AND IN WEIGHING OTHER POLICY CONSIDERATIONS AS TO NEGOTIABILITY
UNDER THE ORDER.
IN CHARLESTON, FLRC NO. 71A-52, THE COUNCIL, QUOTING WITH APPROVAL
FROM THE EARLIER LITTLE ROCK CASE (NOTE 2, SUPRA), STATED (AT PP. 3-4 OF
COUNCIL DECISION):
IN OUR OPINION, THE AGENCY'S POSITION EQUATING REDUCED PREMIUM PAY
COSTS WITH EFFICIENT AND
ECONOMICAL OPERATIONS IMPROPERLY IGNORES THE TOTAL COMPLEX OF FACTORS
ENCOMPASSED WITHIN THE
CONCEPT OF 'EFFICIENCY AND ECONOMY.' IT FAILS TO TAKE INTO ACCOUNT,
FOR EXAMPLE, THE ADVERSE
EFFECTS OF EMPLOYEE DISSATISFACTION WITH EXISTING ASSIGNMENT
PRACTICES, AND THE VERY REAL
POSSIBILITY THAT REVISED PRACTICES ALONG THE LINES PROPOSED, BY
REASON OF THEIR ACTUAL IMPACT
ON THE EMPLOYEES, MIGHT WELL INCREASE, RATHER THAN REDUCE, OVERALL
EFFICIENCY AND ECONOMY OF
OPERATIONS.
IN GENERAL, AGENCY DETERMINATIONS AS TO NEGOTIABILITY MADE IN
RELATION TO THE CONCEPT OF
EFFICIENCY AND ECONOMY IN SECTION 12(B)(4) OF THE ORDER AND SIMILAR
LANGUAGE IN THE STATUTES
REQUIRE CONSIDERATION AND BALANCING OF ALL THE FACTORS INVOLVED,
INCLUDING THE WELL-BEING OF
EMPLOYEES, RATHER THAN AN ARBITRARY DETERMINATION BASED ONLY ON THE
ANTICIPATION OF INCREASED
COSTS. OTHER FACTORS SUCH AS THE POTENTIAL FOR IMPROVED PERFORMANCE,
INCREASED PRODUCTIVITY,
RESPONSIVENESS TO DIRECTION, REDUCED TURNOVER, FEWER GRIEVANCES,
CONTRIBUTION OF MONEY-SAVING
IDEAS, IMPROVED HEALTH AND SAFETY, AND THE LIKE, ARE VALID
CONSIDERATIONS. WE BELIEVE THAT
WHERE OTHERWISE NEGOTIABLE PROPOSALS ARE INVOLVED THE MANAGEMENT
RIGHT IN SECTION 12(B))4) MAY
NOT PROPERLY BE INVOKED TO DENY NEGOTIATIONS UNLESS THERE IS A
SUBSTANTIAL DEMONSTRATION BY
THE AGENCY THAT INCREASED COSTS OR REDUCED EFFECTIVENESS IN
OPERATIONS ARE INESCAPABLE AND
SIGNIFICANT AND ARE NOT OFFSET BY COMPENSATING BENEFITS. (FOOTNOTE
OMITTED.)
IN WEIGHING ECONOMIC IMPACT, AS WELL AS CONGRESSIONAL INTENT TO
MINIMIZE THE BURDEN OF INSPECTION COSTS, IN THE BALANCE OF FACTORS UNDER
SECTION 12(B)(4), /21/ WE NOTE, AT THE OUTSET, THAT NOTHING IN THE
UNION'S PROPOSAL BEFORE THE COUNCIL WOULD PRECLUDE PLANT OPERATORS FROM
ESTABLISHING THEIR OWN WORKING SCHEDULES DURING WHICH INSPECTORS WOULD
BE PROVIDED BY THE AGENCY AND UPON WHICH SCHEDULING THE COSTS OF
REIMBURSABLE OVERTIME WOULD BE DETERMINED. /22/ MOREOVER, WHILE
EVIDENCE WAS ADDUCED BEFORE THE COURT AND IN THE REMAND PROCEEDING
BEFORE THE COUNCIL WITH REGARD TO THE ECONOMIC IMPACT OF THE REVISED
PROPOSAL UPON THE INDUSTRY, SUCH EVIDENCE GENERALLY WAS NOT DIRECTED
TOWARD, NOR EXPLORATIVE OF, THE IMPACT OF THE PROPOSAL WHICH WAS BEFORE
THE COUNCIL FOR DECISION. HOWEVER, CONSISTENT WITH THE MANDATE OF THE
COURT, THE COUNCIL HAS CONSIDERED THIS EVIDENCE AS AT LEAST INDICATIVE
OF THE ECONOMIC IMPACT OF THE PROPOSAL BEFORE THE COUNCIL UPON THE
INDUSTRY.
AS PREVIOUSLY SET FORTH, THE AGENCY CONDUCTED AN IMPACT SURVEY
RELATING TO THE NEGOTIATED AGREEMENT AND, IN SUMMARY, STATED THAT NINE
PLANTS OUT OF A TOTAL OF 5519 COULD POSSIBLY BE AFFECTED TO SOME DEGREE;
THAT IN FISCAL YEAR 1973, THE INDUSTRY REIMBURSED THE AGENCY ABOUT
$21,000,000 FOR INSPECTION OVERTIME COSTS INCURRED; AND THAT THE TOTAL
FISCAL IMPACT ON THE INDUSTRY OF THE CONTRACT LANGUAGE WAS ESTIMATED AT
ABOUT $530,000. NEITHER THE AGENCY'S SUMMARY OR ITS SUPPORTING EXHIBITS
REVEALED THE SIZES OF THE AFFECTED ESTABLISHMENTS.
AS TO THE MEAT PACKERS, IN WHICH THE BASIC WORKWEEK OF THE INSPECTORS
CURRENTLY IS MONDAY THROUGH FRIDAY, NIMPA DID NOT ESTIMATE THE AMOUNT OF
ADDITIONAL OVERTIME COSTS NOR THE TOTAL NUMBER AND SIZES OF AFFECTED
ESTABLISHMENTS WHICH WOULD DERIVE FROM EITHER THE PROPOSAL BEFORE THE
COUNCIL OR THE AGREED UPON PROVISIONS IN THE NEGOTIATED AGREEMENT.
HOWEVER, THE BRIEF SUBMITTED BY NIMPA ASSERTS, AMONG OTHER THINGS, THAT
"SUBSTANTIAL OVERTIME EXPENSE" WOULD BE INCURRED, AND A NUMBER OF
AFFIDAVITS WERE FILED TO LIKE EFFECT.
AS TO THE POULTRY INDUSTRY, IN WHICH THE BASIC WORKWEEK FOR
INSPECTORS IS NOW MONDAY THROUGH SATURDAY, NBC PRINCIPALLY RELIED ON TWO
BROILER INDUSTRY IMPACT STUDIES, ONE FILED WITH THE COUNCIL IN JULY, AND
THE OTHER, IN NOVEMBER, 1974. THESE STUDIES REPORT, AMONG OTHER DATA,
THAT IN 1973 OVER 3 BILLION BROILERS, OR 11.2 BILLION POUNDS OF YOUNG
POULTRY MEAT, WERE PRODUCED BY 175 FIRMS OPERATING MORE THAN 200
PROCESSING PLANTS. FURTHER, ACCORDING TO THESE STUDIES, 55 FIRMS
RESPONDED TO AN NBC SURVEY, WHICH FIRMS ACCOUNTED FOR SLIGHTLY OVER
ONE-HALF OF THE INSPECTED SLAUGHTER AND THE AVERAGE FIRM RESPONDING
SLAUGHTERED AND PROCESSED FROM 300,000 TO 400,000 BROILERS PER WEEK,
WITH INDIVIDUAL OUTPUTS RANGING FROM 60,000 TO 3 MILLION BIRDS PER WEEK.
THE RESPONDING FIRMS, AS REPORTED IN THE STUDIES, EXPENDED ABOUT
$1,184,000 FOR OVERTIME INSPECTION SERVICES IN 1973, WHICH, PROJECTED ON
AN INDUSTRY-WIDE BASIS, WOULD AMOUNT TO ABOUT $4.4 MILLION FOR THAT
YEAR. AND, BASED ON THE NBC SURVEY, FIRMS PRODUCING OVER ONE-FIFTH OF
THE TOTAL BROILER OUTPUT "AT SOME TIME" DURING THE YEAR AND "AT ONE OR
MORE OF THEIR PLANTS" OPERATE A 5-DAY WEEK THAT INCLUDES SATURDAY OR A
TOUR STARTING BEFORE 4 A.M. OR AFTER 6 P.M. /22/ HOWEVER, THERE IS NO
SPECIFIC INDICATION IN THESE STUDIES AS TO THE TOTAL AMOUNT OF
ADDITIONAL OVERTIME COSTS WHICH WOULD RESULT EITHER FROM THE SUBJECT
PROPOSAL BEFORE THE COUNCIL OR FROM THE PROVISIONS IN THE SUBSEQUENT
AGREEMENT BETWEEN THE PARTIES. MOREOVER, WHILE THE TOTAL GROSS
PRODUCTION FIGURES OF RESPONDING AFFECTED ESTABLISHMENTS ARE SHOWN IN
THE NBC STUDIES, THE SIZE RANGE OF THE INDIVIDUAL AFFECTED
ESTABLISHMENTS AND THE ESTIMATED COST IMPACT ON EACH SUCH ESTABLISHMENT
ARE NOT SPECIFIED.
FROM THE FOREGOING, AND THE ENTIRE RECORD, IT MAY BE CONCLUDED
GENERALLY THAT SOME ADDITIONAL OVERTIME COSTS REIMBURSABLE BY THE
INDUSTRY WOULD PROBABLY RESULT FROM THE SUBJECT UNION PROPOSAL BEFORE
THE COUNCIL, AND THAT, ALTHOUGH THE ADDITIONAL OVERTIME COSTS WOULD
APPEAR TO BE RELATIVELY LIMITED IN AMOUNT, THE INDUSTRY WOULD BE
ADVERSELY AFFECTED TO THAT EXTENT BY ADOPTION OF THE PROPOSAL.
HOWEVER, EVEN FULLY WEIGHING SUCH ECONOMIC IMPACT AND THE
CONGRESSIONAL INTENT TO MINIMIZE THE BURDEN OF INSPECTION COSTS ON THE
INDUSTRY IN THE BALANCE, AS DIRECTED BY THE COURT, THE COUNCIL IS OF THE
OPINION THAT SUCH CIRCUMSTANCES DO NOT RENDER THE UNION'S PROPOSAL
NONNEGOTIABLE UNDER SECTION 12(B)(4) OF THE ORDER.
IT IS COMMON KNOWLEDGE IN THE FIELD OF LABOR RELATIONS THAT THE
ADOPTION OF A BASIC WORKWEEK, THE DEFINING OF THE STARTING HOURS OF THAT
WORKWEEK, AND THE LAWFUL PAYMENT OF OVERTIME FOR WORK PERFORMED IN
ADDITION TO ESTABLISHED HOURS, AS PROVIDED BY STATUTE, ARE REGARDED BY
EMPLOYEES AS SUBSTANTIAL IMPROVEMENTS IN THEIR WORKING CONDITIONS, AND,
FOR THE REASONS FULLY SET FORTH IN THE CHARLESTON AND LITTLE ROCK CASES,
THESE BENEFITS BY REASON OF THEIR DERIVATIVE EFFECTS MAY WELL ENHANCE
THE EFFICIENCY OF THE EMPLOYING AGENCY IN PERFORMING THE GOVERNMENT
OPERATIONS ENTRUSTED TO THAT AGENCY. CERTAINLY THE AGENCY HAS NOT
ESTABLISHED AS REQUIRED BY SECTION 12(B)(4), NOR DOES IT OTHERWISE
APPEAR, THAT ANY CONTRARY RESULT WOULD OBTAIN WITH RESPECT TO THE
PERFORMANCE OF THE INSPECTION OPERATIONS OF THE AGENCY IN THE PRESENT
CASE.
WHILE WE RECOGNIZE THE UNIQUE CIRCUMSTANCES HERE THAT THE INDUSTRY
MUST PAY ANY RESULTANT INCREASE IN OVERTIME COSTS AND YET IS NOT A
DIRECT PARTICIPANT IN THE NEGOTIATING PROCESS, SUCH CIRCUMSTANCES ARE
NOT DISPOSITIVE WITH RESPECT TO THE IMPACT OF THE PROPOSAL ON THE
AGENCY'S EFFICIENCY IN PERFORMING ITS OPERATIONS, WHICH IS ALONE
CONTROLLING UNDER SECTION 12(B)(4). MOREOVER, THE AGENCY RETAINS ITS
OBLIGATION AS A RESPONSIBLE GOVERNMENT ORGANIZATION TO PROTECT THE
INTERESTS OF ALL THE PERSONS CONCERNED, IN THE BARGAINING PROCESS, AND
NOTHING IN THE RECORD SHOWS ANY LACK OF AWARENESS OF THE INDUSTRY'S
INTERESTS BY THE AGENCY IN THIS CASE.
LIKEWISE, AS TO THE CONGRESSIONAL INTENT TO MINIMIZE THE BURDEN OF
INSPECTION COSTS ON INDUSTRY, SUCH STATUTORY PURPOSE, AS DISCUSSED
BELOW, IS CLEARLY OF MAJOR SIGNIFICANCE AT THE BARGAINING TABLE.
HOWEVER, SECTION 12(B)(4) IS CONCERNED WITH THE COST EFFECTIVENESS OF
THE AGENCY IN PERFORMING ITS OPERATIONS, THAT IS ITS EFFICIENCY, AND NOT
THE POLICIES SOUGHT TO BE SERVED BY THOSE OPERATIONS. AND, AS THE COURT
INDICATED, THE UNION'S PROPOSAL IS NOT SHOWN TO IMPAIR THE EFFICIENCY OF
THE AGENCY'S OPERATIONS.
ACCORDINGLY, WE REAFFIRM OUR DECISION THAT THE UNION'S PROPOSAL IS
NOT VIOLATIVE OF SECTION 12(B)(4) OF THE ORDER.
AS TO WHETHER THE UNIQUE CIRCUMSTANCES HERE INVOLVED RENDER THE
UNION'S PROPOSAL OTHERWISE NONNEGOTIABLE UNDER THE ORDER, WE CAN FIND NO
UNDERLYING POLICY OF THE ORDER WHICH IS VIOLATED BY THE SUBJECT
PROPOSAL. RATHER, SUCH MATTERS AS THE EXIGENCIES OF THE INDUSTRY, THE
INTENT OF CONGRESS TO MINIMIZE THE INSPECTION BURDEN ON INDUSTRY, AND
THE ECONOMIC IMPACT OF THE PROPOSAL, PARTICULARLY ON SMALL OPERATORS,
DIRECTED BY THE COURT TO BE RECONSIDERED BY THE COUNCIL, GO TO THE
WISDOM AND ADVISABILITY, NOT THE NEGOTIABILITY, OF THE UNION'S PROPOSAL,
WHICH ARE WHOLLY OUTSIDE THE COUNCIL'S AUTHORITY TO RESOLVE UNDER
SECTION 11(C) OF THE ORDER. IT IS FOR THE AGENCY FULLY TO PREPARE
ITSELF ON THESE MATTERS BEFORE UNDERTAKING NEGOTIATIONS, TO BARGAIN
ASSIDUOUSLY AND IN GOOD FAITH ON THE PROPOSAL IN LIGHT OF THESE HIGHLY
SIGNIFICANT CONSIDERATIONS, AND TO AGREE ON THE PROPOSAL OR ANY LAWFUL
REVISION THEREOF ONLY IF IT DEEMS SUCH AGREEMENT WILL BEST COMPORT WITH
THE OVERRIDING NEEDS OF ITS PROGRAM. FAILING AGREEMENT, MEDIATION AND
IMPASSE PROCEDURES ARE MADE AVAILABLE TO THE PARTIES UNDER SECTIONS 16
AND 17 OF THE ORDER.
TO REPEAT, THE COUNCIL'S AUTHORITY IN THIS PROCEEDING IS LIMITED TO
DECIDING WHETHER THE UNION'S PROPOSAL, AS SUBMITTED TO THE COUNCIL, IS
NEGOTIABLE, I.E., WHETHER THE PROPOSAL IS CONTRARY TO APPLICABLE LAW,
REGULATION OF APPROPRIATE AUTHORITY OUTSIDE THE AGENCY, OR THE ORDER.
FOR THE REASONS ALREADY FULLY SET FORTH AND UPON CAREFUL RECONSIDERATION
CONSISTENT WITH THE MANDATE OF THE COURT, THE COUNCIL REAFFIRMS ITS
DECISION THAT THE UNION PROPOSAL, AS SUBMITTED TO THE COUNCIL, IS VALID
AND CONSEQUENTLY IS NEGOTIABLE UNDER SECTION 11(A) OF THE ORDER.
THE COURT IS RESPECTFULLY SO ADVISED.
BY THE COUNCIL.
ATTACHMENTS:
APPENDIX I
APPENDIX II
ISSUED: JUNE 10, 1975.
MR. JOHN H. YOUNG
COLLIER, SHANNON, RILL
& EDWARDS
1666 K STREET, NW., SUITE 701
WASHINGTON, D.C. 20006
MR. JAMES M. KEFAUVER
GLASSIE, PEWETT, BEEBE
& SHANKS
FEDERAL BAR BUILDING WEST
1819 H STREET, NW.
WASHINGTON, D.C. 20006
GENTLEMEN:
REFERENCE IS MADE TO (1) THE REQUEST BY THE NATIONAL BROILER COUNCIL,
INC., NATIONAL TURKEY FEDERATION, POULTRY AND EGG INSTITUTE OF AMERICA
AND SOUTHEASTERN POULTRY ASSOCIATION (COLLECTIVELY REFERRED TO HEREIN AS
NBC), CONCURRED IN BY THE NATIONAL INDEPENDENT MEAT PACKERS ASSOCIATION
(NIMPA), THAT THE RESPECTIVE ASSOCIATIONS BE PERMITTED TO INTERVENE AS
"PARTIES" IN THE INSTANT RECONSIDERATION PROCEEDINGS; AND (2) THE
REQUESTS OF NBC AND NIMPA FOR ORAL HEARING OR ORAL ARGUMENT ON NBC'S
REQUEST TO INTERVENE AND ON OTHER ISSUES IN THE CASE.
UPON CAREFUL CONSIDERATION OF THE SUBMISSIONS BY NBC AND NIMPA, AND
THE RESPONSES THERETO FILED BY THE AGENCY AND THE UNION, THE COUNCIL HAS
RULED AS SET FORTH BELOW.
(1) WITH RESPECT T0 NBC'S REQUEST THAT THE ASSOCIATIONS BE PERMITTED
TO INTERVENE AS "PARTIES," SECTION 2411.3(C)(2) OF THE COUNCIL'S RULES
OF PROCEDURE DEFINES THE TERM "PARTY" FOR PURPOSES OF A NEGOTIABILITY
APPEAL AS FOLLOWS:
(C) 'PARTY' MEANS ANY PERSON, EMPLOYEE, LABOR ORGANIZATION, OR AGENCY
THAT PARTICIPATED AS
A PARTY--
(2) IN A MATTER THAT WAS DECIDED BY AN AGENCY HEAD UNDER SECTION
11(C) OF THE ORDER . . .
AS RECOGNIZED BY THE DISTRICT COURT IN THE PRESENT CASE, ONLY THE
UNION AND THE AGENCY ARE "PARTIES" HEREIN UNDER THE COUNCIL'S RULES OF
PROCEDURE. NO PERSUASIVE REASON HAS BEEN ADDUCED BY NBC FOR WAIVING THE
LIMITATIONS IN THE COUNCIL'S RULES FOR PURPOSES OF THIS RECONSIDERATION
PROCEEDING SINCE, AMONG OTHER THINGS, (A) THE ISSUES TO BE CONSIDERED ON
REMAND HAVE BEEN DEFINED BY THE COURT IN ITS MEMORANDUM OPINION AND
ORDER; (B) THE ASSOCIATIONS WERE INVITED TO SUBMIT AMICI CURIAE BRIEFS
ON THESE ISSUES (WHICH SUBMISSION BY NIMPA HAS BEEN ACCEPTED BY THE
COUNCIL); (C) THE SCOPE OF DATA AND ARGUMENTS WHICH MAY BE SUBMITTED IS
THIS PROCEEDING BY AMICI CURIAE IS THE SAME AS THAT FOR THE "PARTIES";
AND (D) NO RELEVANT FACTS ARE SHOWN TO BE IN DISPUTE.
THEREFORE, IN ACCORDANCE WITH SECTION 2411.3(C)(2) OF THE COUNCIL'S
RULES, THE REQUEST OF NBC, CONCURRED IN BY NIMPA, TO BE PERMITTED TO
INTERVENE AS "PARTIES" IN THE REMAND PROCEEDING IS DENIED. /23/
HOWEVER, PURSUANT TO SECTION 2411.45(D) OF THE COUNCIL'S RULES, NBC IS
GRANTED UNTIL NOVEMBER 29, 1974, TO FILE A BRIEF AS AMICUS CURIAE,
INCLUDING ANY DATA AND ARGUMENTS WHICH NBC WISHES THE COUNCIL TO
CONSIDER ON THE MATTERS DIRECTED BY THE COURT TO BE FURTHER CONSIDERED
BY THE COUNCIL.
(2) AS TO THE REQUESTS OF NBC AND NIMPA FOR ORAL HEARING OR ORAL
ARGUMENT ON OTHER ISSUES IN THE CASE, RULING IS DEFERRED PENDING THE
COMPLETION OF WRITTEN SUBMISSIONS AS PROVIDED ABOVE.
BY THE COUNCIL.
CC: C. M. WEBBER
AFGE
S. B. PRANGER
AGRICULTURE
L. A. DENSLOW
MR. JOHN H. YOUNG
COLLIER, SHANNON, RILL & EDWARDS
1666 K STREET, NW., SUITE 701
WASHINGTON, D.C. 20006
DEAR MR. YOUNG:
REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 19, 1974, REQUESTING
THAT THE COUNCIL RECONSIDER AND REVERSE ITS DECISION OF NOVEMBER 12,
1974, INSOFAR AS THE COUNCIL DENIED THE REQUEST OF NBC FOR PERMISSION TO
INTERVENE AS A "PARTY" IN THE INSTANT REMAND PROCEEDING.
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR REQUEST OF NOVEMBER 19 AND
IS OF THE OPINION THAT NO PERSUASIVE REASON HAS BEEN ADVANCED FOR
RECONSIDERING AND REVERSING THE SUBJECT RULING OF THE COUNCIL.
CONTRARY TO YOUR SPECIFIC CONTENTIONS, THE COUNCIL, IN DENYING NBC'S
REQUEST FOR INTERVENTION AS A "PARTY," THOROUGHLY CONSIDERED THE
DECISION BY JUDGE BRYAN IN THE PRESENT CASE AND THE COURT DECISION IN
NATIONAL WELFARE RIGHTS ORGANIZATION V. FINCH, 429 F.2D 725 (D.C. CIR.
1970).
IN THE COUNCIL'S VIEW, ITS ACTION WAS FULLY CONSISTENT WITH, AND
IMPLEMENTIVE OF, THE DECISION OF JUDGE BRYAN IN THE INSTANT CASE. MORE
PARTICULARLY, AS THE COUNCIL STATED IN ITS RULING:
AS RECOGNIZED BY THE DISTRICT COURT IN THE PRESENT CASE, ONLY THE
UNION AND THE AGENCY ARE
"PARTIES" HEREIN UNDER THE COUNCIL'S RULES OF PROCEDURE. NO
PERSUASIVE REASON HAS BEEN
ADDUCED BY NBC FOR WAIVING THE LIMITATIONS IN THE COUNCIL'S RULES FOR
PURPOSES OF THIS
RECONSIDERATION PROCEEDING SINCE, AMONG OTHER THINGS, (A) THE ISSUES
TO BE CONSIDERED ON
REMAND HAVE BEEN DEFINED BY THE COURT IN ITS MEMORANDUM OPINION AND
ORDER; (B) THE
ASSOCIATIONS WERE INVITED TO SUBMIT AMICI CURIAE BRIEFS ON THESE
ISSUES (WHICH SUBMISSION BY
NIMPA HAS BEEN ACCEPTED BY THE COUNCIL); (C) THE SCOPE OF DATA AND
ARGUMENTS WHICH MAY BE
SUBMITTED IN THIS PROCEEDING BY AMICI CURIAE IS THE SAME AS THAT FOR
THE "PARTIES"; AND (D) NO
RELEVANT FACTS ARE SHOWN TO BE IN DISPUTE.
FOR LIKE REASONS, THE COURT DECISION IN THE NATIONAL WELFARE RIGHTS
ORGANIZATION CASE, IN THE COUNCIL'S OPINION, DID NOT COMPEL A DIFFERENT
RESULT. IN THAT CASE, UNLIKE HERE, THE STATUTE AND AGENCY REGULATIONS
PROVIDED FOR A FORMAL, ADJUDICATIVE-TYPE HEARING, WITH THE PRESENTATION
OF WITNESSES, EXAMINATION AND CROSS-EXAMINATION BY THE PARTIES, ETC.;
SUCH HEARINGS WERE ALREADY IN PREPARATION BY THE AGENCY; THE STATUS OF
AMICUS CURIAE WOULD NOT HAVE AFFORDED THE SAME SCOPE OF PRESENTATION AND
PARTICIPATION BY THE INDIVIDUALS AND ORGANIZATIONS SEEKING INTERVENTION
AS BY THE EXISTING "PARTIES" TO THE HEARINGS; AND IT DID NOT APPEAR
THAT THE POTENTIAL FACTS TO BE ADDUCED AT THE HEARINGS WERE WITHOUT
DISPUTE. FURTHER, THE COURT IN THE NATIONAL WELFARE RIGHTS ORGANIZATION
CASE STRICTLY LIMITED THE ADDITIONAL RIGHTS GRANTED TO THE INTERVENORS
AS "PARTIES", TO PARTICIPATION AND PRESENTATION IN ANY SUCH FORMAL
HEARING WHICH WAS CONDUCTED BY THE AGENCY IN THAT CASE-- A TYPE OF
HEARING WHICH IS NEITHER PROVIDED FOR NOR INDICATED IN NEGOTIABILITY
DISPUTES SUCH AS HERE INVOLVED UNDER E.O. 11491, AS AMENDED, AND THE
COUNCIL'S RULES AND REGULATIONS ISSUED THEREUNDER.
ACCORDINGLY, AS YOUR REQUEST FOR RECONSIDERATION AND REVERSAL FAILS
TO ADVERT TO ANY MATTER NOT PREVIOUSLY CONSIDERED AND CORRECTLY DECIDED
BY THE COUNCIL, YOUR REQUEST IS DENIED.
WITH FURTHER REFERENCE TO YOUR SUBMISSION AS AMICUS CURIAE, SUCH
SUBMISSION, AS YOU WERE ADVISED ON DECEMBER 5, 1974, WAS TIMELY RECEIVED
BY THE COUNCIL. YOU MAY BE ASSURED THAT THE COUNCIL WILL CAREFULLY
CONSIDER YOUR SUBMISSION IN THE COUNCIL'S FURTHER DELIBERATIONS IN THE
PRESENT CASE.
BY THE COUNCIL.
CC: (W/C LTR OF 11/19/74)
C. M. WEBBER
AFGE
S. B. PRANGER
AGRICULTURE
L. A. DENSLOW
E. H. PEWETT
/1/ THE AGENCY ARGUED MAINLY THAT THE PROPOSAL WOULD CHANGE EXISTING
PRACTICES, UNDER WHICH THE POULTRY INSPECTORS HAD A MONDAY THROUGH
SATURDAY WORKWEEK, THE MEAT INSPECTORS HAD A MONDAY THROUGH FRIDAY
WORKWEEK, AND STARTING TIMES WERE ADJUSTED TO CONFORM TO THE SCHEDULES
OF THE VARIOUS PLANT OPERATORS, AND THAT THE PROPOSAL WOULD THEREBY
INCREASE OVERTIME COSTS WHICH, AS NOTED HEREINAFTER, MUST BE BORNE BY
THE INDUSTRY.
/2/ 21 U.S.C. 468, 695; SEE ALSO 7 U.S.C. 394.
/3/ LOCAL UNION NO. 2219, INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, AFL-CIO AND DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS, LITTLE
ROCK DISTRICT, LITTLE ROCK, ARK., FLRC NO. 71A-46 (NOVEMBER 20, 1972),
REPORT NO. 30, AT PP. 4-6 OF COUNCIL DECISION; AND FEDERAL EMPLOYEES
METAL TRADES COUNCIL OF CHARLESTON AND U.S. NAVAL SUPPLY CENTER,
CHARLESTON, SOUTH CAROLINA, FLRC NO. 71A-52 (NOVEMBER 24, 1974), REPORT
NO. 31, AT PP. 3-4 OF COUNCIL DECISION.
/4/ AFFIDAVIT DATED APRIL 10, 1974, OF MICHAEL L. HUGGINS, ASSISTANT
TO DIRECTOR FOR LABOR-MANAGEMENT RELATIONS, PERSONNEL DIVISION, ANIMAL
AND PLANT HEALTH INSPECTION SERVICE, U.S. DEPARTMENT OF AGRICULTURE, AT
P. 5.
/5/ THE NATIONAL TURKEY FEDERATION AND OTHER POULTRY ASSOCIATIONS
LATER JOINED IN THE LAWSUIT. FOR CONVENIENCE, ALL THE INTERESTED
POULTRY ASSOCIATIONS WILL BE REFERRED TO HEREIN COLLECTIVELY AS NBC, AND
THE MEAT PACKERS ASSOCIATIONS, AS NIMPA.
/6/ THE OPINION OF THE COURT ON JURISDICTIONAL MATTERS APPEARS
OUTSIDE THE SCOPE OF THE REMAND AND, EXCEPT AS INCORPORATED BY THE COURT
IN ITS OPINION ON THE MERITS, WILL NOT BE FURTHER ADVERTED TO HEREIN.
/7/ AFGE LOCAL 1940 AND PLUM ISLAND ANIMAL DISEASE LABORATORY, DEPT.
OF AGRICULTURE, GREENPORT, N.Y., FLRC NO. 71A-11 (JULY 9, 1971), REPORT
NO. 11.
/8/ IN THE AGENCY AFFIDAVIT SUBMITTED TO THE COURT (NOTE 4, SUPRA),
THE AGENCY STATED (AT P. 6 OF AFFIDAVIT):
PRIOR TO NEGOTIATIONS AND SUBSEQUENT TO AGREEMENT AN IMPACT SURVEY
WAS CONDUCTED NATIONWIDE
TO ASCERTAIN THE IMPLICATIONS THAT VARIOUS CONTRACT PROPOSALS WOULD
HAVE ON THE INDUSTRY. THE
SURVEY WAS CONDUCTED BY MEAT AND POULTRY INSPECTION PROGRAM OFFICIALS
STATIONED IN THE FIELD
WHO HAVE FIRST HAND KNOWLEDGE OF THE OPERATING PRACTICES OF THE
INDUSTRY. THEIR REPORTED
RESULTS INDICATE THAT NINE PLANTS OUT OF A TOTAL OF 5519 COULD
POSSIBLY BE AFFECTED TO SOME
DEGREE. SOME 257 PLANTS CURRENTLY UNDER INSPECTION PURSUANT TO THE
TALMADGE-AIKEN ACT (7
U.S.C. 450), ARE NOT AFFECTED SINCE STATE INSPECTORS ARE CONDUCTING
THE INSPECTION. THE
NEGOTIATED AGREEMENT IS APPLICABLE TO FEDERAL MEAT AND POULTRY
INSPECTORS ONLY. IN FISCAL
YEAR 1973 THE INDUSTRY REIMBURSED APHIS APPROXIMATELY $21,000,000 FOR
INSPECTION OVERTIME
COSTS INCURRED. THE TOTAL FISCAL IMPACT ON THE INDUSTRY AS THE
RESULT OF NEGOTIATIONS HAS
BEEN ESTIMATED AT LESS THAN $530,000. COPIES OF THE IMPACT SURVEY,
THE COST INVOLVED, AND A
BREAKDOWN OF THE CATEGORIES OF PLANTS UNDER FEDERAL INSPECTION ARE
ATTACHED . . .
/9/ SECTION 4211.49 OF THE COUNCIL'S RULES (5 CFR 2411.49) PROVIDES:
THE COUNCIL, UPON PETITION OF AN INTERESTED PERSON AND AS IT DEEMS
APPROPRIATE, MAY GRANT
PERMISSION FOR THE FILING OF A BRIEF AND ORAL ARGUMENT BY AN AMICUS
CURIAE AND THE PARTIES
SHALL BE NOTIFIED OF SUCH ACTION BY THE COUNCIL.
/10/ AS INDICATED IN THE COUNCIL'S ATTACHED RULING OF NOVEMBER 12,
1974, NBC AND NIMPA ALSO REQUESTED ORAL HEARING OR ORAL ARGUMENT ON
OTHER ISSUES IN THE CASE. RULING ON THESE REQUESTS WAS DEFERRED PENDING
COMPLETION OF THE WRITTEN SUBMISSIONS. PURSUANT TO SECTION 2411.49 OF
THE COUNCIL'S RULES (5 CFR 2411.49), THE REQUESTS BY NBC AND NIMPA ARE
DENIED, BECAUSE THE ISSUES AND THE POSITIONS OF THE PARTICIPANTS IN THIS
CASE ARE ADEQUATELY REFLECTED IN THE ENTIRE RECORD NOW BEFORE THE
COUNCIL.
/11/ LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1971), AT P.
43.
/12/ SEE, E.G., IAM-AW AND DEPARTMENT OF THE NAVY, FLRC NO. 71A-6
(FEBRUARY 12, 1971), REPORT NO. 4; NFFE LOCAL 476 AND DEPARTMENT OF THE
ARMY, FLRC NO. 71A-50 (JANUARY 21, 1972), REPORT NO. 18.
/13/ SECTION 2411.27 OF THE COUNCIL'S RULES (5 CFR 2411.27) PROVIDES:
SEC. 2411.27 COUNCIL DECISION.
SUBJECT TO THE REQUIREMENTS OF THIS PART, THE COUNCIL SHALL ISSUE ITS
DECISION SUSTAINING
OR SETTING ASIDE IN WHOLE OR IN PART, OR REMANDING THE AGENCY HEAD'S
DETERMINATION.
/14/ SEE SECTION E.2. OF REPORT ACCOMPANYING E.O. 11491,
LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1971), AT P. 43.
/15/ 5 U.S.C. 6101 READS IN PERTINENT PART:
SEC. 6101. BASIC 40-HOUR WORKWEEK; WORK SCHEDULES; REGULATIONS.
(A)(1) THE HEAD OF EACH EXECUTIVE AGENCY . . . SHALL--
(A) ESTABLISH A BASIC ADMINISTRATIVE WORKWEEK OF 40 HOURS FOR EACH
FULL-TIME EMPLOYEE IN
HIS ORGANIZATION; AND
(B) REQUIRE THAT THE HOURS OF WORK WITHIN THAT WORKWEEK BE PERFORMED
WITHIN A PERIOD OF NOT
MORE THAN 6 OF ANY 7 CONSECUTIVE DAYS.
(3) EXCEPT WHEN THE HEAD OF AN EXECUTIVE AGENCY . . . DETERMINES
THAT HIS ORGANIZATION
WOULD BE SERIOUSLY HANDICAPPED IN CARRYING OUT ITS FUNCTIONS OR THAT
COSTS WOULD BE
SUBSTANTIALLY INCREASED, HE SHALL PROVIDE, WITH RESPECT TO EACH
EMPLOYEE IN HIS ORGANIZATION,
THAT--
(A) ASSIGNMENTS TO TOURS OF DUTY ARE SCHEDULED IN ADVANCE OVER
PERIODS OF NOT LESS THAN 1
WEEK;
(B) THE BASIC 40-HOUR WORKWEEK IS SCHEDULED ON 5 DAYS, MONDAY THROUGH
FRIDAY WHEN POSSIBLE,
AND THE 2 DAYS OUTSIDE THE BASIC WORKWEEK ARE CONSECUTIVE;
(C) THE WORKING HOURS IN EACH DAY IN THE BASIC WORKWEEK ARE THE SAME;
(D) THE BASIC NONOVERTIME WORKDAY MAY NOT EXCEED 8 HOURS;
(E) THE OCCURRENCE OF HOLIDAYS MAY NOT AFFECT THE DESIGNATION OF THE
BASIC WORKWEEK; AND
(F) BREAKS IN WORKING HOURS OF MORE THAN 1 HOURS MAY NOT BE SCHEDULED
IN A BASIC WORKDAY.
(C) THE CIVIL SERVICE COMMISSION MAY PRESCRIBE REGULATIONS, SUBJECT
TO THE APPROVAL OF THE
PRESIDENT, NECESSARY FOR THE ADMINISTRATION OF THIS SECTION INSOFAR
AS THIS SECTION AFFECTS
EMPLOYEES IN OR UNDER AN EXECUTIVE AGENCY.
/16/ 5 U.S.C. 5542(A) PROVIDES IN RELEVANT PART:
SEC. 5542. OVERTIME RATES; COMPUTATION.
(A) HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF 40
HOURS IN AN ADMINISTRATIVE
WORKWEEK, OR . . . IN EXCESS OF 8 HOURS IN A DAY, PERFORMED BY AN
EMPLOYEE ARE OVERTIME WORK
. . .
/17/ IF THE PROPOSAL BEFORE THE COUNCIL WERE AGREED TO BY THE
PARTIES, THEN OF COURSE ITS ADMINISTRATION WOULD ALSO BE REQUIRED TO BE
CONSISTENT WITH LAW. SECTION 12(A) OF THE ORDER PROVIDES IN THIS
REGARD:
SEC. 12. BASIC PROVISIONS OF AGREEMENTS. EACH AGREEMENT BETWEEN AN
AGENCY AND A LABOR
ORGANIZATION IS SUBJECT TO THE FOLLOWING REQUIREMENTS--
(A) IN THE ADMINISTRATION OF ALL MATTERS COVERED BY THE AGREEMENT,
OFFICIALS AND EMPLOYEES
ARE GOVERNED BY EXISTING OR FUTURE LAWS AND THE REGULATIONS OF
APPROPRIATE AUTHORITIES,
INCLUDING POLICIES SET FORTH IN THE FEDERAL PERSONNEL MANUAL; BY
PUBLISHED AGENCY POLICIES AND
REGULATIONS IN EXISTENCE AT THE TIME THE AGREEMENT WAS APPROVED; AND
BY SUBSEQUENTLY PUBLISHED
AGENCY POLICIES AND REGULATIONS REQUIRED BY LAW OR BY THE REGULATIONS
OF APPROPRIATE
AUTHORITIES, OR AUTHORIZED BY THE TERMS OF A CONTROLLING AGREEMENT AT
A HIGHER AGENCY LEVEL
. . .
/18/ SEE, E.G., REPORTS AND RECOMMENDATIONS ACCOMPANYING E.O. 11838,
LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1975), IN WHICH IT IS
STATED WITH RESPECT TO SECTION 13(A) OF THE ORDER (AT P. 51):
OF COURSE, FINAL DECISIONS UNDER NEGOTIATED GRIEVANCE PROCEDURES,
INCLUDING FINAL AND
BINDING AWARDS BY ARBITRATORS WHERE THE NEGOTIATED PROCEDURE MAKES
PROVISION FOR SUCH
ARBITRATION, MUST BE CONSISTENT WITH APPLICABLE LAW, APPROPRIATE
REGULATION OR THE
ORDER. THUS, WHERE IT APPEARS, BASED UPON THE FACTS AND
CIRCUMSTANCES DESCRIBED IN A PETITION
BEFORE THE COUNCIL, THAT THERE IS SUPPORT FOR A CONTENTION THAT AN
ARBITRATOR HAS ISSUED AN
AWARD WHICH VIOLATES APPLICABLE LAW, APPROPRIATE REGULATION OR THE
ORDER, THE COUNCIL, UNDER
ITS RULES, WILL GRANT REVIEW OF THE AWARD. FOR EXAMPLE, SHOULD THE
COUNCIL FIND THAT AN AWARD
VIOLATES THE PROVISIONS OF TITLE 5, UNITED STATES CODE, OR THAT AN
AWARD VIOLATES THE
REGULATIONS OF THE CIVIL SERVICE COMMISSION, OR THAT AN AWARD
VIOLATES SECTION 12(B) OF THE
ORDER, THE COUNCIL WOULD MODIFY OR SET ASIDE THAT AWARD.
/19/ SEE, E.G., FEDERAL EMPLOYEES METAL TRADES COUNCIL OF CHARLESTON,
AFL-CIO AND CHARLESTON NAVAL SHIPYARD, CHARLESTON, SOUTH CAROLINA, FLRC
NO. 72A-35 (JUNE 29, 1973), REPORT NO. 41; AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES LOCAL 1966 AND VETERANS ADMINISTRATION HOSPITAL,
LEBANON, PENNSYLVANIA, FLRC NO. 72A-41 (DECEMBER 12, 1973), REPORT NO.
46.
/20/ THE PROPOSAL IN THE INSTANT CASE IS ALSO CLEARLY DISTINGUISHABLE
FROM THAT PART OF THE PROPOSAL IN CHARLESTON, FLRC NO. 72A-35, FOUND TO
BE NONNEGOTIABLE, IN WHICH THE UNION SOUGHT TO LIMIT THE ACTUAL NUMBER
OF EMPLOYEES ASSIGNED TO PARTICULAR TOURS OF DUTY.
/21/ WE REJECT THE UNION'S CONTENTIONS IN THE REMAND PROCEEDINGS,
WHICH DISPUTE THE PROPRIETY OF THE COUNCIL'S INTERPRETATION OF SECTION
12(B)(4) IN THE LITTLE ROCK AND CHARLESTON DECISIONS. IN OUR OPINION,
THOSE DECISIONS PROPERLY REFLECT THE INTENT AND PURPOSE OF SECTION
12(B)(4). MOREOVER, IN THE RECENT GENERAL REVIEW OF THE ORDER, THE
COUNCIL, AFTER CAREFULLY REEXAMINING ITS DECISIONS AND ISSUANCES WHICH
INTERPRETED SECTIONS 11(B) AND 12(B), RECOMMENDED NO CHANGES IN "THE
SUBSTANTIVE LIMITS ON NEGOTIATION, AS CURRENTLY EXPRESSED IN THESE
SECTIONS," AND THE PRESIDENT ADOPTED THAT RECOMMENDATION IN ISSUING E.O.
11838 OF FEBRUARY 6, 1975. SEE LABOR-MANAGEMENT RELATIONS IN THE
FEDERAL SERVICE (1975), AT PP. 40-41.
/22/ SEE RAY BRYANT CATTLE CO. V. UNITED STATES, 463 F.2D 418 (5TH
CIR. 1972).
/22/ MORE SPECIFICALLY, THE JULY STUDY ALSO STATES THAT 9 RESPONDING
FIRMS REPRESENTING ALMOST 9 MILLION BROILERS WEEKLY WOULD BE AFFECTED BY
SECOND SHIFTS STARTING AFTER 6 P.M., AND THAT 5 RESPONDING FIRMS
(INCLUDING SOME OF THE SAME 9 FIRMS), REPRESENTING OVER 2.25 MILLION
BROILERS WEEKLY, WORK TUESDAY THROUGH SATURDAY.
/23/ THE FURTHER REQUEST OF NBC, IN EFFECT JOINED BY NIMPA, FOR ORAL
HEARING ON THE MOTION TO INTERVENE IS LIKEWISE DENIED, SINCE THE ISSUES
AND THE POSITIONS OF THE MOVANTS ARE ADEQUATELY REFLECTED IN THE
SUBMISSIONS ALREADY BEFORE THE COUNCIL.
3 FLRC 321; FLRC NO. 75A-52; JUNE 4, 1975.
MR. SHELTON M. ESTES
5325 HIAWATHA LANE
MINNEAPOLIS, MINNESOTA 55417
(SYNOPSIS) FLRC NO. 75'A-52
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, DECISION (UNNUMBERED) OF
ACTING DIRECTOR, LMSE. THE INDIVIDUAL COMPLAINANT (SHELTON M. ESTES)
APPEALED TO THE COUNCIL FROM A DECISION OF THE ACTING DIRECTOR, OFFICE
OF LABOR-MANAGEMENT ENFORCEMENT STANDARDS (LMSE). THE DECISION, ASSUMED
TO BE "A FINAL DECISION OF THE ASSISTANT SECRETARY," WAS DATED APRIL 23,
1975, AND, SO FAR AS THE APPEAL INDICATES, WAS MAILED ON OR ABOUT THAT
DATE. THEREFORE, UNDER THE COUNCIL'S RULES OF PROCEDURE, THE
COMPLAINANT'S APPEAL WAS DUE IN THE COUNCIL'S OFFICE ON OR ABOUT MAY 16,
1975. HOWEVER, THE APPEAL WAS NOT RECEIVED BY THE COUNCIL UNTIL MAY 20,
1975, AND NO EXTENSION OF TIME FOR FILING WAS EITHER REQUESTED BY THE
COMPLAINANT OR GRANTED BY THE COUNCIL UNDER SECTION 2411.45(D) OF THE
COUNCIL'S RULES (5 CFR 2411.45(D)).
COUNCIL ACTION (JUNE 4, 1975). THE COUNCIL HELD THAT THE
COMPLAINANT'S APPEAL WAS UNTIMELY FILED. ACCORDINGLY, APART FROM OTHER
CONSIDERATIONS, THE COUNCIL DENIED THE PETITION FOR REVIEW.
DEAR MR. ESTES:
RECEIPT ON MAY 20, 1975, IS ACKNOWLEDGED OF YOUR PETITION FOR REVIEW
OF THE DECISION OF THE ACTING DIRECTOR, OFFICE OF LABOR-MANAGEMENT
STANDARDS ENFORCEMENT (LMSE) IN THE ABOVE-MENTIONED CASE. ACCORDING TO
YOUR APPEAL, THE FINAL DECISION IN YOUR CASE CONCERNING SECTION 18 OF
THE ORDER WAS ISSUED BY THE ACTING DIRECTOR, LMSE, AS PROVIDED FOR IN
SECTION 204.64(B) OF THE RULES OF THE ASSISTANT SECRETARY (29 CFR
204.64(B)). ASSUMING FOR THE PURPOSES OF THIS CASE THAT SUCH DECISION
IS "A FINAL DECISION OF THE ASSISTANT SECRETARY," SUBJECT TO COUNCIL
REVIEW WITHIN THE MEANING OF SECTION 2411.13(A) OF THE COUNCIL'S RULES
OF PROCEDURE, (5 CFR 2411.13(A)), THE COUNCIL HAS DETERMINED, FOR THE
REASONS INDICATED BELOW, THAT YOUR PETITION WAS UNTIMELY FILED UNDER THE
COUNCIL'S RULES OF PROCEDURE AND CANNOT BE ACCEPTED FOR REVIEW.
SECTION 2411.13(B) OF THE COUNCIL'S RULES (5 CFR 2411.13(B)) PROVIDES
THAT AN APPEAL MUST BE FILED WITHIN 20 DAYS FROM THE DATE OF SERVICE OF
THE ASSISTANT SECRETARY'S DECISION ON THE PARTY SEEKING REVIEW; UNDER
SECTION 2411.45(C) OF THE RULES (5 CFR 2411.45(C)), THREE ADDITIONAL
DAYS ARE ALLOWED WHEN SERVICE IS BY MAIL; AND UNDER SECTION 2411.45(A)
OF THE RULES (5 CFR 2411.45(A)), SUCH APPEAL MUST BE RECEIVED IN THE
COUNCIL'S OFFICE BEFORE THE CLOSE OF BUSINESS OF THE LAST DAY OF THE
PRESCRIBED TIME LIMIT.
THE DECISION OF THE ACTING DIRECTOR, LMSE, WAS DATED APRIL 23, 1975,
AND, SO FAR AS YOUR APPEAL INDICATES, WAS MAILED ON OR ABOUT THAT DATE.
THEREFORE, UNDER SECTION 2411.45(A) AND (C) OF THE COUNCIL'S RULES, YOU
APPEAL WAS DUE IN THE COUNCIL'S OFFICE ON OR ABOUT MAY 16, 1975.
HOWEVER, YOUR APPEAL WAS NOT RECEIVED BY THE COUNCIL UNTIL MAY 20, 1975,
AND NO EXTENSION OF TIME WAS EITHER REQUESTED BY YOU OR GRANTED BY THE
COUNCIL UNDER SECTION 2411.45(D) OF THE COUNCIL'S RULES (5 CFR
2411.45(D)).
ACCORDINGLY, AS YOUR APPEAL WAS UNTIMELY FILED, AND APART FROM OTHER
CONSIDERATIONS, YOUR PETITION FOR REVIEW IS DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
N. T. WOLKOMIR
NFFE
3 FLRC 318; FLRC NO. 75A-49; MAY 22, 1975.
MS. LISA RENEE STRAX
STAFF ATTORNEY, NATIONAL
FEDERATION OF FEDERAL EMPLOYEES
1737 H STREET, NW.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 75A-49
U.S. DEPARTMENT OF THE INTERIOR, U.S. GEOLOGICAL SURVEY,
MID-CONTINENT MAPPING CENTER, A/SLMR NO. 495. THE UNION (NATIONAL
FEDERATION OF FEDERAL EMPLOYEES) APPEALED TO THE COUNCIL FROM A DECISION
AND DIRECTION OF ELECTION ISSUED BY THE ASSISTANT SECRETARY, WHEREIN HE
MADE CERTAIN ELIGIBILITY DETERMINATIONS AND DIRECTED THE AREA DIRECTOR
TO REEVALUATE THE SHOWING OF INTEREST INVOLVED IN VIEW OF SUCH FINDING,
AND, IF THE SHOWING OF INTEREST REMAINED ADEQUATE, TO CONDUCT AN
ELECTION IN THE UNIT FOUND APPROPRIATE. HOWEVER, NO FINAL DISPOSITION
IN THE CASE HAS BEEN RENDERED BY THE ASSISTANT SECRETARY. THE UNION IN
ITS APPEAL TO THE COUNCIL ALSO REQUESTED A STAY OF THE ASSISTANT
SECRETARY'S ACTION PENDING COUNCIL DECISION ON ITS APPEAL.
COUNCIL ACTION (MAY 22, 1975). THE COUNCIL, PURSUANT TO SECTION
2411.41 OF ITS RULES OF PROCEDURE (5 CFR 2411.41), DENIED REVIEW OF THE
UNION'S INTERLOCUTORY APPEAL, WITHOUT PREJUDICE TO THE UNION'S RENEWAL
OF ITS CONTENTIONS IN A PETITION DULY FILED WITH THE COUNCIL AFTER A
FINAL DECISION ON THE ENTIRE CASE BY THE ASSISTANT SECRETARY. THE
COUNCIL LIKEWISE DENIED THE UNION'S REQUEST FOR A STAY.
DEAR MS. STRAX:
REFERENCE IS MADE TO YOUR PETITION FOR REVIEW AND STAY REQUEST IN THE
ABOVE-ENTITLED CASE.
IN HIS DECISION AND DIRECTION OF ELECTION, THE ASSISTANT SECRETARY
MADE CERTAIN ELIGIBILITY DETERMINATIONS AND DIRECTED THAT THE AREA
DIRECTOR REEVALUATE THE SHOWING OF INTEREST IN VIEW OF SUCH FINDING,
AND, IF SUCH SHOWING REMAINS ADEQUATE, THAT AN ELECTION BE CONDUCTED IN
THE UNIT FOUND APPROPRIATE. HOWEVER, NO FINAL DISPOSITION IN THE CASE
HAS BEEN RENDERED.
SECTION 2411.41 OF THE COUNCIL'S RULES OF PROCEDURE PROHIBITS
INTERLOCUTORY APPEALS. THAT IS, THE COUNCIL WILL NOT CONSIDER A
PETITION FOR REVIEW OF AN ASSISTANT SECRETARY'S DECISION UNTIL A FINAL
DECISION HAS BEEN RENDERED ON THE ENTIRE PROCEEDING BEFORE HIM. MORE
PARTICULARLY, IN A CASE SUCH AS HERE INVOLVED, THE COUNCIL WILL
ENTERTAIN AN APPEAL ONLY AFTER A CERTIFICATION OF REPRESENTATIVE OR OF
THE RESULTS OF THE ELECTION HAS ISSUED, OR AFTER OTHER FINAL DISPOSITION
HAS BEEN MADE OF THE ENTIRE REPRESENTATION MATTER BY THE ASSISTANT
SECRETARY. (SEE U.S. ARMY ELECTRONICS COMMAND, ARMY AVIATION
DETACHMENT, FORT MONMOUTH, NEW JERSEY, FLRC NO. 72A-21 (MAY 2, 1972),
REPORT NO. 22; U.S. ARMY ENGINEER DISTRICT, MOBILE, ALABAMA, AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 561, FLRC NO. 72A-43
(NOVEMBER 10, 1972), REPORT NO. 30; DEPARTMENT OF AGRICULTURE, OFFICE
OF INFORMATION SYSTEMS, KANSAS CITY, MISSOURI, FLRC NO. 74A-37 (JUNE 24,
1974), REPORT NO. 54; FEDERAL DEPOSIT INSURANCE CORPORATION, FLRC NO.
74A-97 (JANUARY 14, 1975), REPORT NO. 61; AND NATIONAL SCIENCE
FOUNDATION, FLRC NO. 75A-37 (APRIL 4, 1975), REPORT NO. 67.)
SINCE A FINAL DECISION HAS NOT BEEN SO RENDERED IN THE PRESENT CASE,
THE COUNCIL HAS DIRECTED THAT YOUR APPEAL BE DENIED, WITHOUT PREJUDICE
TO THE RENEWAL OF YOUR CONTENTIONS IN A PETITION DULY FILED WITH THE
COUNCIL AFTER A FINAL DECISION ON THE ENTIRE CASE BY THE ASSISTANT
SECRETARY. LIKEWISE, YOUR FURTHER REQUEST FOR A STAY PENDING DECISION
ON YOUR APPEAL IS THEREFORE DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
H. O. GIVENS, JR.
INTERIOR
3 FLRC 315; FLRC NO. 75A-24; MAY 22, 1975.
MR. WILLIAM B. PEER
BARR & PEER
SUITE 1002
1101 17TH STREET, NW.
WASHINGTON, D.C. 20036
(SYNOPSIS) FLRC NO. 75A-24
U.S. DEPARTMENT OF THE AIR FORCE, WESTOVER, MASSACHUSETTS, AIR FORCE
BASE, ASSISTANT SECRETARY CASE NO. 31-8619 (RO). THE ASSISTANT
SECRETARY DENIED A REQUEST FOR REVIEW, FILED BY THE INTERNATIONAL
ASSOCIATION OF FIRE FIGHTERS, LOCAL UNION F-185, SEEKING REVERSAL OF THE
ASSISTANT REGIONAL DIRECTOR'S DISMISSAL OF A REPRESENTATION PETITION
FILED BY THE UNION. THE UNION APPEALED TO THE COUNCIL, CONTENDING THAT
THE ASSISTANT SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS AND
PRESENTS MAJOR POLICY ISSUES.
COUNCIL ACTION (MAY 22, 1975). BASED PRINCIPALLY ON THE REASONS
FULLY SET FORTH IN ITS DAVIS-MONTHAN AIR FORCE BASE DECISION, FLRC NO.
74A-92 (REPORT NO. 71), THE COUNCIL HELD THAT THE ASSISTANT SECRETARY'S
DECISION DOES NOT APPEAR ARBITRARY AND CAPRICIOUS AND DOES NOT PRESENT
ANY MAJOR POLICY ISSUES. ACCORDINGLY, SINCE THE UNION'S PETITION FAILED
TO MEET THE REQUIREMENTS FOR REVIEW PROVIDED BY SECTION 2411.12 OF THE
COUNCIL'S RULES OF PROCEDURE, THE COUNCIL DENIED REVIEW OF THE UNION'S
PETITION (5 CFR 2411.12).
DEAR MR. PEER:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
IN THIS CASE, THE INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL
UNION F-185 FILED A PETITION SEEKING A REPRESENTATION ELECTION IN A UNIT
CONSISTING OF ALL NONSUPERVISORY, NONPROFESSIONAL GS FIREFIGHTERS, CREW
CHIEFS AND FIRE INSPECTORS EMPLOYED AT WESTOVER AIR FORCE BASE,
MASSACHUSETTS. THE ASSISTANT SECRETARY FOUND THAT THE CLAIMED EMPLOYEES
HAVE AT ALL TIMES MATERIAL BEEN COVERED BY THE CERTIFICATION OF THE
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R1-31, AND ARE NOW
COVERED BY A NEGOTIATED AGREEMENT WHICH RENDERS THE SUBJECT PETITION
UNTIMELY. ACCORDINGLY, HE DENIED YOUR REQUEST FOR REVIEW SEEKING
REVERSAL OF THE ASSISTANT REGIONAL DIRECTOR'S DISMISSAL OF THE PETITION.
IN YOUR PETITION FOR REVIEW YOU CONTEND THAT THE DECISION OF THE
ASSISTANT SECRETARY IS ARBITRARY AND CAPRICIOUS AND THAT THE DECISION
PRESENTS MAJOR POLICY ISSUES. SPECIFICALLY, YOU ALLEGE THE SAME
CONTENTIONS WHICH YOU MADE IN YOUR APPEAL IN UNITED STATES DEPARTMENT OF
THE AIR FORCE, DAVIS-MONTHAN AIR FORCE BASE, ARIZONA, FLRC NO. 74A-92.
MOREOVER, YOU ALLEGE IN THE INSTANT CASE THAT THE ASSISTANT SECRETARY
SHOULD HAVE FOLLOWED THE PRECEDENT OF ANOTHER CASE AND ORDERED THAT A
HEARING BE HELD.
THE COUNCIL HAS ON THIS DATE ISSUED ITS DECISION IN UNITED STATES
DEPARTMENT OF THE AIR FORCE, DAVIS-MONTHAN AIR FORCE BASE, ARIZONA, FLRC
NO. 74A-92, A COPY OF WHICH IS ENCLOSED, WHEREIN WE DENIED REVIEW OF THE
ASSISTANT SECRETARY'S DECISIONS. FOR THE REASONS FULLY SET FORTH IN
THAT DECISION, IT DOES NOT APPEAR THAT THE ASSISTANT SECRETARY ACTED
WITHOUT REASONABLE JUSTIFICATION IN THE INSTANT CASE OR THAT THE
ASSISTANT SECRETARY'S DECISION PRESENTS MAJOR POLICY ISSUES. MOREOVER,
YOUR APPEAL DOES NOT DEMONSTRATE THAT SUBSTANTIAL FACTUAL ISSUES EXIST
REQUIRING A HEARING.
ACCORDINGLY, SINCE YOUR PETITION FAILS TO MEET THE REQUIREMENTS FOR
REVIEW PROVIDED BY SECTION 2411.12 OF THE COUNCIL'S RULES OF PROCEDURE,
REVIEW OF THE PETITION IS HEREBY DENIED.
BY THE COUNCIL.
ENCLOSURE
CC: A/SLMR
DEPT. OF LABOR
J. T. MITCHELL
AIR FORCE
S. Q. LYMAN
NAGE
3 FLRC 312; FLRC NO. 75A-3; MAY 22, 1975.
MS. LISA RENEE STRAX, STAFF ATTORNEY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
1737 H STREET, NW.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 75A-3
DEPARTMENT OF TRANSPORTATION, FEDERAL HIGHWAY ADMINISTRATION AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1348, ASSISTANT
SECRETARY CASE NO. 71-3009. THE ASSISTANT SECRETARY, IN AGREEMENT WITH
THE ASSISTANT REGIONAL DIRECTOR, DISMISSED THE UNFAIR LABOR PRACTICE
COMPLAINT FILED BY THE UNION WHICH ALLEGED VIOLATION OF SECTION 19(A)(1)
OF THE ORDER BY THE AGENCY BASED UPON THE AGENCY'S ACTION TERMINATING
DUES WITHHOLDING. THE UNION APPEALED TO THE COUNCIL CONTENDING THAT THE
ASSISTANT SECRETARY'S DECISION PRESENTS MAJOR POLICY ISSUES.
COUNCIL ACTION (MAY 22, 1975). THE COUNCIL HELD THAT THE ASSISTANT
SECRETARY'S DECISION DOES NOT PRESENT A MAJOR POLICY ISSUE AND DOES NOT
APPEAR ARBITRARY AND CAPRICIOUS. ACCORDINGLY, THE COUNCIL DENIED THE
UNION'S PETITION FOR REVIEW SINCE IT FAILED TO MEET THE REQUIREMENTS FOR
REVIEW AS PROVIDED IN SECTION 2411.12 OF THE COUNCIL'S RULES OF
PROCEDURE (5 CFR 2411.12).
DEAR MS. STRAX:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
THE ASSISTANT SECRETARY DENIED YOUR REQUEST FOR REVIEW SEEKING
REVERSAL OF THE ASSISTANT REGIONAL DIRECTOR'S DISMISSAL OF YOUR
COMPLAINT. IN THAT COMPLAINT YOU ALLEGED A VIOLATION OF SECTION
19(A)(1) OF THE ORDER BY THE FEDERAL HIGHWAY ADMINISTRATION OF THE
DEPARTMENT OF TRANSPORTATION (AGENCY) BASED UPON THE AGENCY'S ACTION
TERMINATING DUES WITHHOLDING.
THE ASSISTANT SECRETARY, IN AGREEMENT WITH THE ASSISTANT REGIONAL
DIRECTOR, CONCLUDED THAT FURTHER PROCEEDINGS WERE UNWARRANTED INASMUCH
AS A REASONABLE BASIS FOR THE COMPLAINT HAD NOT BEEN ESTABLISHED. HE
FOUND, IN THIS REGARD, THAT THE PARTIES HAD EXTENDED THEIR NEGOTIATED
AGREEMENT UNTIL THE TERMINATION OF THE MEDIATION PHASE OF THEIR
NEGOTIATIONS HELD UNDER THE AUSPICES OF THE FEDERAL MEDIATION AND
CONCILIATION SERVICE (FMCS) AND, FURTHER, THAT THIS PHASE, IN FACT,
TERMINATED WITH THE CLOSE OF A NEGOTIATION SESSION HELD ON APRIL 17,
1974. IN THESE CIRCUMSTANCES, AND AS SECTION 21(A) OF THE ORDER
PROVIDES THAT DUES WITHHOLDING IS BASED ON THE EXISTENCE OF A
WITHHOLDING AGREEMENT, THE ASSISTANT SECRETARY FOUND FURTHER THAT THE
EXPIRATION OF THE PARTIES' BASIC AGREEMENT-- WHICH CONTAINED THE
PARTIES' DUES WITHHOLDING AGREEMENT-- TERMINATED THE AGENCY'S OBLIGATION
TO CONTINUE DUES WITHHOLDING.
IN YOUR PETITION FOR REVIEW YOU CONTEND THAT THE ASSISTANT
SECRETARY'S DECISION PRESENTS MAJOR POLICY ISSUES WITH REGARD TO WHETHER
(1) THE ASSISTANT REGIONAL DIRECTOR CORRECTLY APPLIED AND INTERPRETED
NAVAL AIR REWORK FACILITY, JACKSONVILLE, FLORIDA, A/SLMR NO. 155, TO THE
INSTANT CASE, (2) THE MEDIATION STEP OF NEGOTIATIONS ON THE RENEWAL
AGREEMENT WAS COMPLETED SO AS TO TERMINATE THE EXTENSION OF THE
NEGOTIATED AGREEMENT AND, (3) THE WITHHOLDING PROVISION HAD A LIFE OF
ITS OWN, SEPARATE AND DISTINCT FROM THE BASIC BARGAINING AGREEMENT.
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW DOES NOT MEET THE
REQUIREMENTS OF SECTION 2411.12 OF THE COUNCIL'S RULES, THAT IS, THE
DECISION OF THE ASSISTANT SECRETARY DOES NOT PRESENT A MAJOR POLICY
ISSUE, AND YOU DO NOT ALLEGE, NOR DOES IT APPEAR, THAT HIS DECISION WAS
ARBITRARY AND CAPRICIOUS.
THUS, AS TO THE FIRST MAJOR POLICY ISSUE WHICH YOU ASSERT, THE
COUNCIL FINDS THAT THE ASSISTANT SECRETARY'S CONCLUSIONS IN THE INSTANT
CASE, CONCERNING THE EFFECT OF THE TERMINATION OF THE AGREEMENT ON THE
DUES WITHHOLDING PROVISION, DO NOT APPEAR TO DEPART IN ANY RESPECT FROM
INTERPRETATIONS OF THE ORDER IN THIS REGARD CONTAINED IN HIS EARLIER
DECISIONS.
AS TO THE SECOND AND THIRD ALLEGED MAJOR POLICY ISSUES, THEY
CONSTITUTE, IN EFFECT, NOTHING MORE THAN DISAGREEMENT WITH THE ASSISTANT
SECRETARY'S FINDINGS "THAT THE MEDIATION PHASE OF NEGOTIATIONS
TERMINATED WITH THE CLOSE OF THE NEGOTIATIONS SESSION HELD ON APRIL 17,
1974 . . . (AND) THAT THE EXPIRATION OF THE BASIC AGREEMENT, WHICH
CONTAINED THE PARTIES' DUES WITHHOLDING AGREEMENT, TERMINATED THE
ACTIVITY'S OBLIGATION TO CONTINUE THE DUES WITHHOLDING PRIVILEGE." THEY
DO NOT, THEREFORE, IN THE CIRCUMSTANCES OF THE CASE, PRESENT A MAJOR
POLICY ISSUE WARRANTING COUNCIL REVIEW.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT PRESENT A MAJOR
POLICY ISSUE, AND SINCE YOU NEITHER ALLEGE, NOR DOES IT APPEAR, THAT THE
DECISION IS ARBITRARY AND CAPRICIOUS, YOUR APPEAL FAILS TO MEET THE
REQUIREMENTS FOR REVIEW AS PROVIDED IN SECTION 2411.12 OF THE COUNCIL'S
RULES OF PROCEDURE. ACCORDINGLY, YOUR PETITION FOR REVIEW IS DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
JOHN E. MORS
OFHP, FHA
DEPT. OF TRANSPORTATION
3 FLRC 308; FLRC NO. 74A-99; MAY 22, 1975.
MR. G. F. BRENNAN
STAFF DIRECTOR
CIVILIAN PERSONNEL
DEFENSE SUPPLY AGENCY
HQ CAMERON STATION
ALEXANDRIA, VIRGINIA 22314
MR. ADAM WENCKUS, PRESIDENT
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2047
P.O. BOX 3742
RICHMOND, VIRGINIA 23234
(SYNOPSIS) FLRC NO. 74A-99
DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA AND AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2047, AFL-CIO (DI STEFANO,
ARBITRATOR). THE AGENCY EXCEPTED TO THE ARBITRATOR'S AWARD ON GROUNDS,
AMONG OTHERS, RELATING TO: (1) THE ALLEGATION THAT THE AWARD VIOLATES
APPLICABLE LAW AND APPROPRIATE REGULATIONS; AND (2) THE QUESTION OF
WHETHER, UNDER LAW, REGULATIONS AND THE ORDER, THE ARBITRATOR HAD THE
AUTHORITY TO RULE ON THE QUALIFICATIONS OF THE INCUMBENT EMPLOYEE FOR
THE POSITION AND, IF SO, WHETHER SUCH RULING CONFORMED WITH APPLICABLE
LAW AND REGULATIONS.
THE UNION OPPOSED THE AGENCY'S PETITION, IN PART ON GROUNDS OF
UNTIMELINESS (THE AGENCY HAD REQUESTED CLARIFICATION OF THE ARBITRATOR'S
AWARD, AND ITS APPEAL TO THE COUNCIL, WHILE FILED WITHIN 20 DAYS AFTER
THE ARBITRATOR'S ACTION ON ITS CLARIFICATION REQUEST, WAS FILED MORE
THAN 20 DAYS AFTER SERVICE OF THE AWARD). THE UNION ALSO OPPOSED
COUNCIL CONSIDERATION OF A LETTER FROM A REGIONAL OFFICE OF THE CIVIL
SERVICE COMMISSION INCLUDED WITH THE AGENCY'S APPEAL, WHICH LETTER WAS
NOT PRESENTED IN THE PROCEEDING BEFORE THE ARBITRATOR.
COUNCIL ACTION (MAY 22, 1975). THE COUNCIL DETERMINED THAT THE
AGENCY'S PETITION FOR REVIEW, INSOFAR AS IT RELATED TO THE EXCEPTIONS
NOTED ABOVE, MET THE REQUIREMENTS FOR REVIEW UNDER SECTION 2411.32 OF
THE COUNCIL'S RULES (5 CFR 2411.32), AND NOTIFIED THE PARTIES OF
ACCEPTANCE OF THE PETITION IN THOSE RESPECTS.
AS TO THE QUESTION OF TIMELINESS, THE COUNCIL DETERMINED THAT WHEN A
PARTY (OR THE PARTIES JOINTLY) SEEK A CLARIFICATION OR INTERPRETATION OF
AN AWARD FROM AN ARBITRATOR FOLLOWING SERVICE OF THE AWARD, SUCH ACTION
DOES NOT TOLL THE RUNNING OF THE TIME LIMITS IN THE COUNCIL'S RULES FOR
FILING A PETITION FOR REVIEW OF THE AWARD. THEREFORE, SHOULD A PARTY
WHICH SEEKS CLARIFICATION OR INTERPRETATION OF AN AWARD WISH TO PRESERVE
ITS RIGHT TO SEEK REVIEW OF THE AWARD, IT SHOULD REQUEST AN EXTENSION OF
TIME FROM THE COUNCIL UNDER SECTION 2411.45(D) OF THE COUNCIL'S RULES (5
CFR 2411.45(D)) UNTIL SUCH TIME AS THE ARBITRATOR ACTS ON THE REQUEST
FOR CLARIFICATION OR INTERPRETATION. HOWEVER, SINCE SECTION 2411.33(B)
OF THE COUNCIL'S RULES (5 CFR 2411.33(B)) IS AMBIGUOUS TO THE EXTENT
THAT IT DOES NOT EXPLICITLY SPECIFY THAT THE TIME LIMITS THEREIN SHALL
APPLY EVEN THOUGH A PARTY MAY DEEM IT APPROPRIATE TO SEEK CLARIFICATION
AND INTERPRETATION OF THE AWARD, THE COUNCIL RULED THAT, IN ACCORDANCE
WITH THE INITIAL WARNER ROBINS DECISION, FLRC NO. 74A-8, REPORT NO. 53,
RETROACTIVE APPLICATION OF THIS DETERMINATION WOULD NOT BE MADE IN THIS
CASE. INSTEAD, THIS DETERMINATION WILL APPLY PROSPECTIVELY.
FINALLY, AS TO THE LETTER INCLUDED WITH THE AGENCY'S APPEAL, THE
COUNCIL, IN ACCORDANCE WITH SECTION 2411.51 OF ITS RULES (5 CFR
2411.51), DECLINED TO CONSIDER THE LETTER IN MAKING ITS DECISION ON
ACCEPTANCE AND RULED THAT THE LETTER OR REFERENCE THERETO WILL NOT BE
CONSIDERED WHEN THE CASE IS DECIDED ON ITS MERITS.
GENTLEMEN:
THE COUNCIL HAS CAREFULLY CONSIDERED THE AGENCY'S PETITION FOR
REVIEW, AND THE OPPOSITION THERETO, OF AN ARBITRATOR'S AWARD FILED IN
THE ABOVE-ENTITLED CASE.
IN ACCORDANCE WITH SECTION 2411.32 OF THE COUNCIL'S RULES OF
PROCEDURE, YOU ARE HEREBY NOTIFIED THAT THE COUNCIL HAS ACCEPTED THE
PETITION FOR REVIEW WITH RESPECT TO: (1) THE ALLEGATION THAT THE AWARD
VIOLATES APPLICABLE LAW AND APPROPRIATE REGULATIONS BECAUSE IT, IN
EFFECT, DENIES THE INCUMBENT OF THE POSITION IN QUESTION THE RIGHT TO
COMPETE FOR THAT POSITION WHEN IT IS REFILLED; AND (2) THE QUESTION OF
WHETHER, UNDER LAW, REGULATIONS AND THE ORDER, THE ARBITRATOR HAD THE
AUTHORITY TO RULE ON THE QUALIFICATIONS OF THE INCUMBENT EMPLOYEE FOR
THE POSITION AND, IF SO, WHETHER SUCH RULING CONFORMED WITH APPLICABLE
LAW AND REGULATIONS. YOU ARE REMINDED THAT BRIEFS MAY BE FILED, AS
PROVIDED IN SECTION 2411.36 OF THE COUNCIL'S RULES.
THE COUNCIL CAREFULLY CONSIDERED THE UNION'S CONTENTION THAT THE
AGENCY'S PETITION FOR REVIEW, WHICH WAS FILED WITH THE COUNCIL ON
DECEMBER 23, 1974, WAS NOT FILED WITHIN THE TIME LIMITS PRESCRIBED BY
SECTION 2411.33(B) OF THE COUNCIL'S RULES (5 CFR 2411.33(B)). UNDER
THAT SECTION THE TIME LIMIT FOR FILING A PETITION FOR REVIEW OF AN
ARBITRATION AWARD IS 20 DAYS FROM THE DATE THE AWARD WAS SERVED ON THE
PARTY SEEKING REVIEW. IN THIS CASE IT IS NOT CLEAR PRECISELY WHAT DAY
THE ARBITRATOR'S AWARD WAS SERVED ON THE AGENCY, BUT EVEN ASSUMING THAT
THE AWARD (WHICH WAS DATED NOVEMBER 14, 1974) WAS NOT SERVED ON THE
AGENCY UNTIL NOVEMBER 18, 1974 (THE DATE THE AGENCY ACTUALLY RECEIVED
THE AWARD), THE PETITION FOR REVIEW SHOULD HAVE BEEN FILED WITH THE
COUNCIL NO LATER THAN DECEMBER 9, 1974, IN ORDER TO MEET THE TIME LIMITS
PRESCRIBED BY SECTION 2411.33(B).
HOWEVER, THE RECORD INDICATES THAT, FOLLOWING RECEIPT OF THE
ARBITRATOR'S AWARD, THE AGENCY SOUGHT CLARIFICATION OF THE AWARD FROM
THE ARBITRATOR. (SUBSEQUENTLY, THE ARBITRATOR REFUSED TO CLARIFY THE
AWARD WITHOUT A SIMILAR REQUEST FROM THE UNION.) BOTH THE AGENCY, IN ITS
PETITION FOR REVIEW, AND THE UNION, IN ITS OPPOSITION THERETO, ADDRESSED
THE QUESTION OF TIMELINESS IN TERMS OF WHEN THE AWARD BECAME "FINAL"
FOLLOWING THE AGENCY'S REQUEST TO THE ARBITRATOR TO CLARIFY HIS AWARD.
THE COUNCIL HAS DETERMINED THAT WHEN A PARTY (OR THE PARTIES JOINTLY)
SEEK A CLARIFICATION OR INTERPRETATION OF AN AWARD FROM AN ARBITRATOR
FOLLOWING SERVICE OF THE AWARD ON THE PARTIES, SUCH ACTION DOES NOT TOLL
THE RUNNING OF THE TIME LIMITS IN THE COUNCIL'S RULES FOR FILING A
PETITION FOR REVIEW OF THE AWARD. THEREFORE, SHOULD A PARTY WHICH SEEKS
CLARIFICATION OR INTERPRETATION OF AN AWARD WISH TO PRESERVE ITS RIGHT
TO SEEK REVIEW OF THE AWARD, IT SHOULD REQUEST AN EXTENSION OF TIME FROM
THE COUNCIL UNDER SECTION 2411.45(D) OF THE COUNCIL'S RULES UNTIL SUCH
TIME AS THE ARBITRATOR ACTS ON THE REQUEST FOR CLARIFICATION OR
INTERPRETATION OF THE AWARD. HOWEVER, SINCE SECTION 2411.33(B) OF THE
COUNCIL'S RULES IS AMBIGUOUS TO THE EXTENT THAT IT DOES NOT EXPLICITLY
SPECIFY THAT THE TIME LIMITS THEREIN SHALL APPLY EVEN THOUGH A PARTY MAY
DEEM IT APPROPRIATE TO SEEK CLARIFICATION AND INTERPRETATION OF THE
AWARD, IT IS THE COUNCIL'S VIEW THAT, IN ACCORDANCE WITH PRECEDENT
ESTABLISHED IN WARNER ROBINS AIR MATERIEL AREA, ROBINS AIR FORCE BASE,
GEORGIA, ASSISTANT SECRETARY CASE NO. 40-4939 (GA), FLRC NO. 74A-8 (MAY
23, 1974), REPORT NO. 53, RETROACTIVE APPLICATION OF THIS DETERMINATION
SHOULD NOT BE MADE IN THIS CASE. INSTEAD, THIS DETERMINATION WILL APPLY
PROSPECTIVELY.
THE COUNCIL HAS DETERMINED THAT IT WAS NOT APPROPRIATE FOR THE AGENCY
TO SUBMIT WITH ITS PETITION A LETTER FROM THE PHILADELPHIA REGION OF THE
CIVIL SERVICE COMMISSION RESPONDING TO THE AGENCY'S REQUEST FOR AN
EVALUATION OF THE QUALIFICATIONS OF THE INCUMBENT OF THE POSITION IN
QUESTION IN THIS CASE SINCE THE ARBITRATOR DID NOT HAVE THE BENEFIT OF
THE LETTER AND THE ADVICE OF THE CIVIL SERVICE COMMISSION CONTAINED
THEREIN WHEN THE MATTER WAS BEFORE HIM, NOR DOES IT APPEAR FROM THE
RECORD THAT THE CIVIL SERVICE COMMISSION WAS ASKED TO EVALUATE ANYTHING
OTHER THAN THE INCUMBENT'S CLAIMED WORK EXPERIENCE. THE UNION HAS
OBJECTED TO THE INCLUSION OF THE LETTER IN THE AGENCY'S SUBMISSION TO
THE COUNCIL, STATING THAT IT CONSIDERS THE INTRODUCTION OF SUCH EVIDENCE
TO BE "HIGHLY IMPROPER SINCE IT WAS NOT A PART OF THE ARBITRATION."
THEREFORE, IN ACCORDANCE WITH SECTION 2411.51 OF THE COUNCIL'S RULES (5
CFR 2411.51), THE COUNCIL DID NOT CONSIDER THE LETTER IN MAKING ITS
DECISION ON ACCEPTANCE IN THIS CASE AND THE LETTER OR REFERENCES TO IT
WILL NOT BE CONSIDERED WHEN THE CASE IS DECIDED ON THE MERITS.
BY THE COUNCIL.
3 FLRC 305; FLRC NO. 74A-92; MAY 22, 1975.
MR. WILLIAM B. PEER
BARR & PEER
SUITE 1002
1101 17TH STREET, NW.
WASHINGTON, D.C. 20036
(SYNOPSIS) FLRC NO. 74A-92
UNITED STATES DEPARTMENT OF THE AIR FORCE, DAVIS-MONTHAN AIR FORCE
BASE, ARIZONA, A/SLMR NO. 462. IN THIS CASE, THE ASSISTANT SECRETARY
DISMISSED A REPRESENTATION PETITION FILED BY INTERNATIONAL ASSOCIATION
OF FIRE FIGHTERS, LOCAL UNION F-176, WASHINGTON, D.C. (IAFF). IAFF
APPEALED TO THE COUNCIL FROM THE ASSISTANT SECRETARY'S DECISION,
CONTENDING THAT THE DECISION IS ARBITRARY AND CAPRICIOUS AND PRESENTS
MAJOR POLICY ISSUES.
COUNCIL ACTION (MAY 22, 1975). THE COUNCIL HELD THAT THE DECISION OF
THE ASSISTANT SECRETARY DOES NOT APPEAR ARBITRARY AND CAPRICIOUS AND
DOES NOT PRESENT ANY MAJOR POLICY ISSUE. ACCORDINGLY, SINCE IAFF'S
PETITION FAILED TO MEET THE REQUIREMENTS FOR REVIEW PROVIDED BY SECTION
2411.12 OF THE COUNCIL'S RULES (5 CFR 2411.12), THE COUNCIL DENIED THE
PETITION FOR REVIEW.
DEAR MR. PEER:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE, AND THE
DEPARTMENT OF THE AIR FORCE'S AND THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES' OPPOSITIONS THERETO.
IN THIS CASE, YOU SOUGHT A REPRESENTATION ELECTION FOR A UNIT OF
CIVILIAN FIREFIGHTERS EMPLOYED AT DAVIS-MONTHAN AIR FORCE BASE. AN
AGREEMENT BETWEEN THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES (NFFE)
AND THE ACTIVITY, WHICH WAS IN EFFECT AT THE TIME YOU FILED YOUR
REPRESENTATION PETITION, DESCRIBED, IN PERTINENT PART, THE UNIT
REPRESENTED BY NFFE AS " . . . ALL ELIGIBLE UNITED STATES AIR FORCE
CLASSIFICATION ACT EMPLOYEES SERVICED BY THE CENTRAL CIVILIAN PERSONNEL
OFFICE (CCPO), DAVIS-MONTHAN AIR FORCE BASE (DMAFB) . . . " YOU ASSERTED
THAT THE CIVILIAN FIREFIGHTER CLASSIFICATION WAS NOT PART OF THE
EXISTING UNIT BUT WAS, IN EFFECT, A NEW, UNREPRESENTED EMPLOYEE
CLASSIFICATION, ESPECIALLY IN VIEW OF THE FACT THAT THE FIRE DEPARTMENT
RECENTLY HAD UNDERGONE A CONVERSION FROM ESSENTIALLY A MILITARY
ORGANIZATION TO A CIVILIAN ORGANIZATION. THE ASSISTANT SECRETARY FOUND
THAT THE REQUESTED EMPLOYEES ARE PART OF THE EXISTING UNIT AT THE
ACTIVITY COVERED BY A NEGOTIATED AGREEMENT WHICH CONSTITUTES A BAR TO
THE REPRESENTATION PETITION, AS SUCH PETITION DID NOT MEET THE
TIMELINESS REQUIREMENTS SET FORTH IN SECTION 202.3(C) OF THE ASSISTANT
SECRETARY'S REGULATIONS. ACCORDINGLY, HE DISMISSED YOUR PETITION AS
UNTIMELY FILED.
IN YOUR PETITION FOR REVIEW YOU CONTEND, IN SUMMARY, THAT THE
DECISION OF THE ASSISTANT SECRETARY IS ARBITRARY AND CAPRICIOUS BECAUSE
(1) IT DID NOT ADDRESS THE "EXPANDING UNIT" ISSUE; (2) IT GIVES THE
INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS NO REALISTIC OPEN PERIODS IN
WHICH TO FILE A PETITION FOR A REPRESENTATION ELECTION; AND (3) IT IS
NOT A REASONED JUDGMENT. ADDITIONALLY, IN EFFECT, YOU CONTEND THAT THE
ASSISTANT SECRETARY'S DECISION PRESENTS MAJOR POLICY ISSUES BECAUSE (1)
IT VIRTUALLY IGNORES THE ISSUE OF CONVERSION OF A MILITARY ORGANIZATION
TO A CIVILIAN ORGANIZATION, THUS FAILING TO PROVIDE A GUIDE TO AGENCIES
AND LABOR ORGANIZATIONS IN DETERMINING THEIR RESPECTIVE POSITIONS IN
CASES PRESENTING THE CONVERSION ISSUE; AND (2) IT IS IN DIRECT CONFLICT
WITH THE LEADING CASE OF THE ASSISTANT SECRETARY ON ACCRETION, THUS THE
COUNCIL SHOULD RESOLVE THIS CONFLICT AND ENUNCIATE A SINGLE RULE FOR
ACCRETION CASES.
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW OF THE ASSISTANT
SECRETARY'S DECISION DOES NOT MEET THE REQUIREMENTS OF SECTION 2411.12
OF THE COUNCIL'S RULES; HIS FINDINGS DO NOT APPEAR ARBITRARY AND
CAPRICIOUS NOR DO THEY PRESENT A MAJOR POLICY ISSUE. AS TO YOUR
CONTENTION THAT HIS DECISION IS ARBITRARY AND CAPRICIOUS, IT DOES NOT
APPEAR THAT THE ASSISTANT SECRETARY ACTED WITHOUT REASONABLE
JUSTIFICATION IN HIS DECISION. THE DECISION IS BASED UPON THE EVIDENCE
IN THE RECORD BEFORE THE ASSISTANT SECRETARY, ESTABLISHED PRINCIPLES
REFLECTED IN PREVIOUSLY PUBLISHED DECISIONS OF THE ASSISTANT SECRETARY,
AND THE APPLICATION OF HIS REGULATIONS. THE FACTS AND CIRCUMSTANCES
PRESENTED OFFER NO EVIDENCE TO SUPPORT THE VIEW THAT AN "EXPANDING UNIT"
ISSUE IS INVOLVED.
ALSO, WITH RESPECT TO YOUR CONTENTION THAT HIS DECISION PRESENTS
MAJOR POLICY ISSUES, THE FACTS AND CIRCUMSTANCES PRESENTED DO NOT OFFER
EVIDENCE TO SUPPORT EITHER THE VIEW THAT THE ASSISTANT SECRETARY'S
DECISION IS INCONSISTENT WITH HIS APPLICABLE PRIOR DECISIONS OR WITH
OTHER APPLICABLE AUTHORITY, OR THE VIEW THAT ACCRETION IS INVOLVED AS AN
ISSUE IN THE CASE. AS TO THE NEED FOR GUIDANCE TO AGENCIES AND LABOR
ORGANIZATIONS REGARDING THE CONVERSION OF A MILITARY ORGANIZATION TO A
CIVILIAN ORGANIZATION, THERE IS NO INDICATION, IN THE CIRCUMSTANCES
HEREIN, THAT THE ASSISTANT SECRETARY'S DECISION PRESENTS SUCH A MAJOR
POLICY ISSUE.
ACCORDINGLY, SINCE YOUR PETITION FAILS TO MEET THE REQUIREMENTS FOR
REVIEW PROVIDED BY SECTION 2411.12 OF THE COUNCIL'S RULES OF PROCEDURE,
REVIEW OF THE PETITION IS HEREBY DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
C. L. WEIST, JR.
CAPTAIN, USAF
J. EMMERLING
NFFE
3 FLRC 296; FLRC NO. 74A-30; MAY 22, 1975.
AFGE LOCAL 2118
AND
LOS ALAMOS AREA OFFICE, ERDA
(SYNOPSIS) FLRC NO. 74A-30
AFGE LOCAL 2118 AND LOS ALAMOS AREA OFFICE, ERDA. THE DISPUTE IN
THIS CASE CONCERNED THE NEGOTIABILITY UNDER THE ORDER OF UNION PROPOSALS
WHICH WOULD: (1) ESTABLISH TIME LIMITS FOR DECIDING WHETHER TO FILL AND
FOR FILLING CERTAIN VACANT POSITIONS, AND REQUIRE THE TEMPORARY
PROMOTION OF UNIT EMPLOYEES INTO SUCH POSITIONS UNDER CERTAIN
CONDITIONS; (2) REQUIRE THE AGENCY TO ADHERE TO SPECIFIED FIRE COMPANY
MANNING LEVELS; AND (3) REQUIRE THE AGENCY TO COMPLY WITH VARIOUS
REFERENCED SAFETY STANDARDS.
COUNCIL ACTION (MAY 22, 1975). AS TO (1), THE COUNCIL RULED THAT THE
PROPOSAL IS NONNEGOTIABLE UNDER SECTION 12(B)(2). WITH RESPECT TO (2),
THE COUNCIL HELD THAT THE PROPOSAL IS EXCLUDED FROM THE AGENCY'S
OBLIGATION TO BARGAIN BY SECTION 11(B). AS TO (3), THE COUNCIL HELD
THAT THE PROPOSAL IS NEGOTIABLE UNDER SECTION 11(A) OF THE ORDER.
ACCORDINGLY, THE AGENCY HEAD'S DETERMINATION OF NONNEGOTIABILITY WAS
SUSTAINED IN PART AND SET ASIDE IN PART.
AFGE LOCAL 2118 REPRESENTS A UNIT OF FIREFIGHTERS AT THE ENERGY
RESEARCH AND DEVELOPMENT ADMINISTRATION'S /1/ LOS ALAMOS, NEW MEXICO,
AREA OFFICE. DURING NEGOTIATIONS WITH THE AREA OFFICE, DISPUTES AROSE
AS TO THE NEGOTIABILITY OF UNION PROPOSALS (1) TO ESTABLISH CERTAIN TIME
LIMITS FOR DECIDING WHETHER TO FILL AND FOR FILLING VACANT POSITIONS AND
TO REQUIRE TEMPORARY PROMOTIONS INTO SUCH POSITIONS UNDER CERTAIN
CONDITIONS, (2) TO REQUIRE ADHERENCE BY THE AREA OFFICE TO SPECIFIED
FIRE COMPANY MANNING LEVELS, AND (3) TO REQUIRE AREA OFFICE COMPLIANCE
WITH VARIOUS REFERENCED SAFETY STANDARDS. UPON REFERRAL, THE AGENCY
DETERMINED THE PROPOSALS TO BE NONNEGOTIABLE UNDER THE ORDER. THE UNION
PETITIONED THE COUNCIL FOR REVIEW OF THAT DETERMINATION UNDER SECTION
11(C) OF THE ORDER, /2/ AND THE AGENCY FILED A STATEMENT OF POSITION.
EACH OF THE THREE PROPOSALS WILL BE CONSIDERED SEPARATELY BELOW.
1. ESTABLISHMENT OF TIME LIMITS FOR DECIDING WHETHER TO FILL AND FOR
FILLING VACANT POSITIONS, AND REQUIREMENT OF TEMPORARY PROMOTIONS.
THE FIRST PROPOSAL IN DISPUTE READS AS FOLLOWS:
THE AGENCY AGREES THAT WHEN A VACANCY OCCURS IN THE POSITION OF
CAPTAIN, MOTOR PUMP
OPERATOR, OR FIRE ALARM BOARD OPERATOR, THE AGENCY SHALL MAKE A
DETERMINATION WITHIN 15
CALENDAR DAYS OF SUCH OCCURRENCE WHETHER OR NOT TO FILL THE VACANCY.
IF THE AGENCY DETERMINES
TO FILL THE VACANCY, NOTICE THEREOF SHALL BE POSTED ON OFFICIAL
BULLETIN BOARDS AT EACH FIRE
STATION WITHIN 5 CALENDAR DAYS OF SUCH DETERMINATION, AND THE VACANCY
SHALL BE FILLED WITHIN
30 CALENDAR DAYS OF SUCH POSTING.
WHEN THE AGENCY ANTICIPATES THAT A POSITION OF CAPTAIN, MOTOR PUMP
OPERATOR, OR FIRE ALARM
BOARD OPERATOR WILL BE VACANT FOR 5 OR MORE WORKDAYS, AN EMPLOYEE
WITHIN THE UNIT SHALL BE
TEMPORARILY PROMOTED TO THE VACANT POSITION UNTIL IT IS PERMANENTLY
FILLED.
THE AGENCY ARGUES THAT THIS PROPOSAL CONFLICTS WITH SECTION 12(B)(2)
OF THE ORDER BECAUSE ITS REQUIREMENT THAT MANAGEMENT DECIDE WITHIN A
SPECIFIED TIME PERIOD WHETHER OR NOT TO FILL A VACANCY IN ONE OF THE
REFERENCED POSITIONS INFRINGES UPON THE SUBSTANCE OF MANAGEMENT'S
RESERVED RIGHTS. /3/ THE UNION MAINTAINS THAT THE PROPOSAL SETS FORTH
ONLY THE "PROCEDURAL FRAMEWORK WITHIN WHICH SUCH A DECISION IS TO BE
MADE," AND IN NO WAY INTERFERES WITH MANAGEMENT'S RESERVED AUTHORITY TO
FILL OR NOT TO FILL A VACANT POSITION UNDER SECTION 12(B)(2).
SECTION 12 OF THE ORDER PROVIDES, IN RELEVANT PART, AS FOLLOWS:
SEC. 12 BASIC PROVISIONS OF AGREEMENTS. EACH AGREEMENT BETWEEN AN
AGENCY AND A LABOR
ORGANIZATION IS SUBJECT TO THE FOLLOWING REQUIREMENTS--
(B) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN
ACCORDANCE WITH APPLICABLE LAWS
AND REGULATIONS--
(2) TO HIRE, PROMOTE, TRANSFER, ASSIGN, AND RETAIN EMPLOYEES IN
POSITIONS WITHIN THE AGENCY
. . .
THE LANGUAGE OF SECTION 12(B)(2) MANIFESTS AN INTENT TO BAR FROM
AGREEMENTS PROVISIONS WHICH INFRINGE UPON MANAGEMENT OFFICIALS' EXERCISE
OF THEIR EXISTING AUTHORITY TO TAKE THE PERSONNEL ACTIONS SPECIFIED
THEREIN. THE SECTION DOES NOT, HOWEVER, PRECLUDE NEGOTIATION OF THE
PROCEDURES WHICH MANAGEMENT WILL FOLLOW IN EXERCISING THAT RESERVED
AUTHORITY, SO LONG AS SUCH PROCEDURES DO NOT HAVE THE EFFECT OF NEGATING
THE AUTHORITY ITSELF. THUS, IN ITS VA RESEARCH HOSPITAL DECISION, /4/
THE COUNCIL STATED:
SECTION 12(B)(2) DICTATES THAT IN EVERY LABOR AGREEMENT MANAGEMENT
OFFICIALS RETAIN THEIR
EXISTING AUTHORITY TO TAKE CERTAIN PERSONNEL ACTIONS, I.E., TO HIRE,
PROMOTE, ETC. THE
EMPHASIS IS ON THE RESERVATION OF MANAGEMENT AUTHORITY TO DECIDE AND
ACT ON THESE MATTERS, AND
THE CLEAR IMPORT IS THAT NO RIGHT ACCORDED TO UNIONS UNDER THE ORDER
MAY BE PERMITTED TO
INTERFERE WITH THAT AUTHORITY. HOWEVER, THERE IS NO IMPLICATION THAT
SUCH RESERVATION OF
DECISION MAKING AND ACTION AUTHORITY IS INTENDED TO BAR NEGOTIATIONS
OF PROCEDURES, TO THE
EXTENT CONSONANT WITH LAW AND REGULATIONS, WHICH MANAGEMENT WILL
OBSERVE IN REACHING THE
DECISION OR TAKING THE ACTION INVOLVED, PROVIDED THAT SUCH PROCEDURES
DO NOT HAVE THE EFFECT
OF NEGATING THE AUTHORITY RESERVED.
THE PROPOSAL IN THE VA RESEARCH HOSPITAL CASE WOULD HAVE ENABLED THE
UNION TO OBTAIN HIGHER LEVEL MANAGEMENT REVIEW OF A SELECTION FOR
PROMOTION BEFORE THAT PROMOTION COULD BE EFFECTED. THE COUNCIL HELD
THAT THE PROPOSAL DID NOT VIOLATE SECTION 12(B)(2), BECAUSE IT NEITHER
DIRECTLY LIMITED MANAGEMENT'S FINAL AUTHORITY TO SELECT EMPLOYEES FOR
PROMOTION, NOR INFRINGED UPON SUCH AUTHORITY BY UNREASONABLY DELAYING OR
IMPEDING MANAGEMENT'S SELECTION. THE PROPOSAL DEALT, INSTEAD, WITH THE
PROCEDURES WHICH MANAGEMENT WOULD OBSERVE IN DECIDING AND ACTING WITH
REGARD TO FINAL PROMOTION SELECTIONS-- WHICH PROCEDURES DID NOT HAVE THE
EFFECT OF NEGATING THE AUTHORITY RESERVED TO MANAGEMENT BY SECTION
12(B)(2) AND WERE THEREFORE NEGOTIABLE.
THE QUESTION BEFORE THE COUNCIL HEREIN IS, IN LIKE MANNER, WHETHER
THE INSTANT PROPOSAL WOULD, AS THE AGENCY CONTENDS, INTERFERE WITH THE
AGENCY'S RESERVED AUTHORITY UNDER SECTION 12(B)(2), OR WHETHER, AS THE
UNION CONTENDS, THE PROPOSAL MERELY WOULD ESTABLISH THE PROCEDURES WHICH
THE AGENCY WOULD OBSERVE IN EXERCISING THAT RESERVED AUTHORITY.
AS PREVIOUSLY SET FORTH HEREIN, THE FIRST SENTENCE OF THE FIRST
PARAGRAPH OF THE PROPOSAL IN QUESTION WOULD REQUIRE THAT THE AGENCY
COMMIT ITSELF TO DECIDE WHETHER OR NOT TO FILL CERTAIN VACANT POSITIONS
WITHIN A 15-DAY TIME LIMIT. APART FROM ANY OTHER RESULTS OF THE
PROPOSAL, SUCH A REQUIREMENT WOULD, IN EFFECT, DENY THE AGENCY ANY RIGHT
TO CHANGE ITS DECISION AFTER THE SPECIFIED TIME LIMIT HAD PASSED. IN
THIS RESPECT, THE PROPOSAL IS MANIFESTLY INCONSISTENT WITH THE MEANING
OF SECTION 12(B)(2) AS RECENTLY EXPLAINED BY THE COUNCIL: /5/
(I)MPLICIT AND COEXTENSIVE WITH MANAGEMENT'S CONCEDED AUTHORITY TO
DECIDE TO TAKE AN ACTION
UNDER SECTION 12(B)(2) IS THE AUTHORITY TO . . . CHANGE ITS DECISION,
ONCE MADE, WHETHER OR
NOT TO TAKE SUCH ACTION.
THUS, THE PORTION OF THE PROPOSAL WHICH WOULD PREVENT MANAGEMENT FROM
CHANGING ITS DECISION, ONCE MADE, WHETHER OR NOT TO FILL POSITIONS
CONFLICTS
SIMILARLY, AS REGARDS THE REQUIREMENT IN THE SECOND SENTENCE OF THE
FIRST PARAGRAPH OF THE PROPOSAL THAT VACANT POSITIONS WHICH MANAGEMENT
DETERMINES TO FILL MUST BE FILLED WITHIN 30 DAYS OF POSTING, SUCH A
PROVISION IS ALSO INCONSISTENT WITH MANAGEMENT'S RIGHT UNDER SECTION
12(B)(2) TO DECIDE NOT TO FILL A VACANT POSITION WHICH, IN THE
SUBSEQUENT EXERCISE OF ITS DISCRETION, IT DETERMINES CANNOT OR SHOULD
NOT BE FILLED WITHIN SUCH, OR ANY, PERIOD.
IN OUR OPINION, THEN, THE FIRST PARAGRAPH OF THIS PROPOSAL, UNLIKE
THE PROPOSAL IN THE VA RESEARCH HOSPITAL CASE, SO RESTRICTS THE AGENCY'S
AUTHORITY TO DECIDE AND ACT WITH RESPECT TO THE FILLING OF VACANT
POSITIONS AS TO NEGATE THE AUTHORITY RESERVED TO MANAGEMENT BY SECTION
12(B)(2). ACCORDINGLY, WE MUST FIND THE FIRST PARAGRAPH OF THE PROPOSAL
TO BE NONNEGOTIABLE. /6/
AS CONCERNS THE SECOND PARAGRAPH OF THE PROPOSAL, IT WOULD REQUIRE
THE AGENCY TO FILL, BY TEMPORARY PROMOTION, POSITIONS EXPECTED TO REMAIN
VACANT FOR 5 OR MORE WORKDAYS. IN THE COUNCIL'S VIEW, THIS REQUIREMENT
LIKEWISE CONFLICTS WITH RIGHTS EXPRESSLY RESERVED TO MANAGEMENT BY
SECTION 12(B)(2) TO PROMOTE OR ASSIGN EMPLOYEES TO POSITIONS WITHIN THE
AGENCY. IN THIS REGARD, WHETHER THE PROMOTION INVOLVED IS TEMPORARY OR
PERMANENT MAKES NO DIFFERENCE IN TERMS OF THE RESERVATION OF DECISION
AND ACTION AUTHORITY TO MANAGEMENT UNDER SECTION 12(B)(2). /7/ IN
EITHER CASE, EXCEPT AS MAY BE PROVIDED BY APPLICABLE LAWS OR
REGULATIONS, THE AUTHORITY TO DECIDE AND ACT WITH RESPECT TO THE
PROMOTION RESIDES, BY VIRTUE OF SECTION 12(B)(2), SOLELY WITH MANAGEMENT
AND MAY IN NO FASHION BE BARGAINED AWAY. /8/ SINCE THE SECOND PARAGRAPH
OF THE PROPOSAL WOULD NEGATE MANAGEMENT'S RESERVED AUTHORITY TO FILL
VACANT POSITIONS BY MEANS OTHER THAN THE TEMPORARY PROMOTION OF UNIT
EMPLOYEES, OR TO REFRAIN FROM FILLING SUCH POSITIONS AS ITS JUDGMENT
MIGHT DICTATE, WE MUST FIND THAT THE SECOND PARAGRAPH OF THE PROPOSAL IS
ALSO NONNEGOTIABLE.
THEREFORE, FOR THE REASONS GIVEN ABOVE, WE HOLD THAT THE AGENCY HEAD
DETERMINATION, THAT THE UNION'S FIRST PROPOSAL IS NONNEGOTIABLE UNDER
SECTION 12(B)(2) OF THE ORDER, WAS PROPER AND MUST BE SUSTAINED.
2. MANDATORY COMPLIANCE WITH FIRE COMPANY MANNING LEVELS.
THE UNION'S SECOND PROPOSAL PROVIDES AS FOLLOWS (EMPHASIS BY UNION):
SECTION 5: THE AGENCY SHALL, AS A MATTER OF SAFETY, FOLLOW AS
MANDATORY FOR FIRE COMPANY
MANNING PURPOSES THE FOLLOWING:
1. NFPA NO. 4-1971, SECTION 22.12, NATIONAL FIRE CODES, WHICH READS,
"THE RESPONSE MANNING
OF A FIRE COMPANY SHOULD NOT BE LESS THAN 5 MEN."
2. NFPA NO. 4-1971, SECTION 22.15, WHICH READS, "EACH COMPANY SHOULD
BE PROVIDED WITH
ENOUGH OFFICERS TO PROVIDE A LEADER OF THE COMPANY AT TIME OF
RESPONSE." OFFICERS SHALL BE
CAPTAIN OR MPO ACTING AS CAPTAIN.
3. NFPA NO. 4-1971, SECTION 51.23, WHICH READS IN PART, "ABSENCES
REQUIRE ABOUT 10%
ADDITIONAL TO THE THEORETICAL NUMBER OF MEN AVAILABLE UNDER NORMAL
WORKWEEKS IN EFFECT."
THE AGENCY ASSERTS THAT THE PROPOSAL WOULD REQUIRE IT TO MAINTAIN
CERTAIN MANNING LEVELS AND POLICIES AND THEREBY RELATES TO "PATTERNS OF
STAFFING" WHICH FALL OUTSIDE THE AGENCY'S OBLIGATION TO BARGAIN UNDER
SECTION 11(B) OF THE ORDER. /9/ THE UNION CONTENDS THAT THE PROPOSAL IS
NEGOTIABLE "AS A MATTER OF SAFETY," AND, IN EFFECT, TO THE EXTENT IT MAY
BE CONCERNED WITH STAFFING, MERELY SEEKS TO INCORPORATE INTO THE
PARTIES' AGREEMENT STANDARDS WHICH THE UNION CLAIMS THE AGENCY ITSELF
HAS ESTABLISHED AS MANDATORY UNDER AGENCY REGULATIONS (AEC MANUAL
APPENDIX 0550, PART III).
SECTION 11(B) OF THE ORDER EXCEPTS FROM AN AGENCY'S OBLIGATION TO
NEGOTIATE MATTERS WITH RESPECT TO, AMONG OTHER THINGS:
THE NUMBERS OF EMPLOYEES; AND THE NUMBERS, TYPES, AND GRADES OF
POSITIONS OR EMPLOYEES
ASSIGNED TO AN ORGANIZATIONAL UNIT, WORK PROJECT OR TOUR OF DUTY . .
.
IN ITS REPORT AND RECOMMENDATIONS TO THE PRESIDENT WHICH ACCOMPANIED
E.O. 11491, THE STUDY COMMITTEE STATED THAT THIS PORTION OF SECTION
11(B) APPLIES "TO AN AGENCY'S RIGHT TO ESTABLISH STAFFING PATTERNS FOR
ITS ORGANIZATION AND THE ACCOMPLISHMENT OF ITS WORK. . . " /10/
SIGNIFICANTLY, ALL THREE SECTIONS OF THE INSTANT PROPOSAL SET
EXPRESSLY MANDATORY STANDARDS, IN THE PROPOSAL'S OWN TERMS, "FOR FIRE
COMPANY MANNING PURPOSES." THAT IS, THE PROPOSAL AS DRAWN CLEARLY WOULD
ESTABLISH MANNING LEVELS WHICH THE AGENCY WOULD BE REQUIRED TO MAINTAIN.
VERY PLAINLY, SUCH A REQUIREMENT AS TO THE NUMBERS, TYPES AND/OR GRADES
OF EMPLOYEES ASSIGNED TO THE LOS ALAMOS FIRE COMPANY OR TO ITS WORK
PROJECTS OR TOURS OF DUTY BEARS DIRECTLY UPON THE STAFFING PATTERNS OF
THE AGENCY AND THEREBY CONCERNS MATTERS EXCLUDED FROM THE BARGAINING
OBLIGATION BY SECTION 11(B) OF THE ORDER. FURTHER, IN THIS REGARD
WHETHER OR NOT THE AGENCY HAS BY INTERNAL REGULATIONS UNILATERALLY
ADOPTED THE MANNING STANDARDS CONTAINED IN THE PROPOSAL, AS THE UNION
CONTENDS, DOES NOT ALTER THE EXPRESS EXCLUSION OF SUCH MATTERS WITH
RESPECT TO STAFFING PATTERNS FROM THE AGENCY'S OBLIGATION TO NEGOTIATE
UNDER SECTION 11(B). AS A RESULT, WE MUST SUSTAIN THE AGENCY HEAD'S
DETERMINATION THAT THE PROPOSAL IS OUTSIDE THE AGENCY'S OBLIGATION TO
BARGAIN UNDER SECTION 11(B). /11/
3. COMPLIANCE WITH MANDATORY SAFETY STANDARDS.
THE THIRD PROPOSAL PROVIDES AS FOLLOWS:
THE AGENCY AGREES, AS A MATTER OF SAFETY AND AS A MEASURE OF
PROTECTION TO FIREFIGHTING
FORCES OF THE UNIT, TO COMPLY WITH PRESCRIBED AND MANDATORY
OPERATIONAL SAFETY STANDARDS SET
FORTH IN AEC MANUAL CHAPTER 0550 AND AEC APPENDIX 0550, AND ANY OTHER
SAFETY STANDARDS
PRESCRIBED BY THE DIRECTOR, DIVISION OF OPERATIONAL SAFETY,
HEADQUARTERS; PROVIDING, HOWEVER,
THAT SUCH STANDARDS SHALL NOT INCLUDE (1) ANY WHICH ARE INAPPLICABLE
TO THE UNIT'S OPERATIONS
OR (2) ANY FROM WHICH EXCEPTIONS HAVE BEEN OR MAY BE GRANTED BY THE
DIRECTOR, DIVISION OF
OPERATIONAL SAFETY, HEADQUARTERS.
THE AGENCY TAKES THE POSITION THAT WHILE IT IS PREPARED TO ENTER UPON
NEGOTIATIONS "DIRECTLY RELATED TO HEALTH AND SAFETY FACTORS," SUCH
NEGOTIATIONS "MUST BE ADDRESSED TO SPECIFIC PROBLEMS . . . " HENCE, IN
THE AGENCY'S VIEW, THE UNION'S PROPOSAL IS NONNEGOTIABLE BECAUSE IT
"DOES NOT SPEAK TO ANY SPECIFIC PERSONNEL POLICY, PRACTICE OR WORKING
CONDITION." THE AGENCY DOES NOT, HOWEVER, CONTEND THAT THE PROPOSAL
WOULD VIOLATE APPLICABLE LAW, REGULATION OF EITHER THE AGENCY ITSELF OR
OF APPROPRIATE AUTHORITY OUTSIDE THE AGENCY, OR THE ORDER.
IN OUR OPINION, THE AGENCY'S POSITION WITH RESPECT TO THIS PROPOSAL
FINDS NO SUPPORT IN THE ORDER. NOTHING IN THE ORDER DICTATES THAT
PROPOSALS MUST ACHIEVE ANY PARTICULAR DEGREE OF SPECIFICITY TO BE
NEGOTIABLE. PARTIES TO NEGOTIATIONS REMAIN FREE TO ADOPT WHATEVER
LANGUAGE THEY CHOOSE-- GENERAL OR SPECIFIC-- WITH RESPECT TO OTHERWISE
NEGOTIABLE MATTERS SO LONG AS THAT LANGUAGE DOES NOT CONFLICT WITH
APPLICABLE LAW, REGULATIONS, OR THE ORDER. THE PROPOSAL HERE IN DISPUTE
EXPRESSLY ADDRESSES ITSELF TO MATTERS OF THE SAFETY OF FIREFIGHTING
FORCES OF THE UNIT, REQUIRING ONLY THAT THE AGENCY AGREE TO COMPLY WITH
"PRESCRIBED AND MANDATORY OPERATIONAL SAFETY STANDARDS" CONTAINED IN
CERTAIN AGENCY DIRECTIVES, AND PRESCRIBED BY THE AGENCY DIRECTOR,
DIVISION OF OPERATIONAL SAFETY. NOTHING DEMANDS THAT THE SUBJECT
STANDARDS THEMSELVES BE EXPRESSLY STATED IN THE PARTIES' AGREEMENT:
THEY MAY BE IDENTIFIED BY REFERENCE. MOREOVER, AS ALREADY INDICATED THE
AGENCY MAKES NO SHOWING THAT ITS AGREEMENT TO THIS PROPOSAL, I.E., TO
COMPLY WITH ANY PARTICULAR SAFETY STANDARDS WHICH THIS PROPOSAL WOULD BY
REFERENCE INCORPORATE IN THE AGREEMENT, WOULD IN ANY WAY CONFLICT WITH
APPROPRIATE LAW, REGULATION, OR THE ORDER. /12/ ACCORDINGLY, WE MUST
HOLD THAT THE PROPOSAL IS NEGOTIABLE.
FOR THE REASONS DISCUSSED ABOVE, AND PURSUANT TO SECTION 2411.27 OF
THE COUNCIL'S RULES AND REGULATIONS, WE FIND THAT:
1. THE AGENCY HEAD'S DETERMINATION AS TO THE NONNEGOTIABILITY OF THE
FIRST AND SECOND UNION PROPOSALS WAS VALID AND MUST BE SUSTAINED; AND
2. THE AGENCY HEAD'S DETERMINATION AS TO THE NONNEGOTIABILITY OF THE
THIRD UNION PROPOSAL WAS IMPROPER AND MUST BE SET ASIDE. THIS DECISION
SHOULD NOT BE CONSTRUED AS EXPRESSING OR IMPLYING ANY OPINION OF THE
COUNCIL AS TO THE MERITS OF THE UNION'S PROPOSAL. WE DECIDE ONLY THAT,
AS SUBMITTED BY THE UNION AND BASED UPON THE RECORD BEFORE THE COUNCIL,
THE PROPOSAL IS PROPERLY SUBJECT TO NEGOTIATION BY THE PARTIES CONCERNED
UNDER SECTION 11(A) OF THE ORDER.
BY THE COUNCIL.
ISSUED: MAY 22, 1975
/1/ THE NAME OF THE AGENCY APPEARS AS OFFICIALLY CHANGED DURING THE
PENDENCY OF THIS PROCEEDING.
/2/ IN ITS APPEAL THE UNION ALSO REQUESTED THAT THE COUNCIL EITHER
"ESTABLISH FACTFINDING PROCEEDINGS" FOR USE IN THIS CASE OR PERMIT ORAL
ARGUMENT BY THE PARTIES, AND MOVED TO STRIKE CERTAIN PORTIONS OF THE
AGENCY HEAD DETERMINATION, THE AGENCY STATEMENT OF POSITION, AND THE
UNION'S PETITION FOR REVIEW. AS TO THE REQUEST FOR FACTFINDING OR ORAL
ARGUMENT, THE COUNCIL IS OF THE OPINION THAT NO PERSUASIVE REASONS HAVE
BEEN ADVANCED IN SUPPORT OF SUCH REQUEST. AS TO THE MOTION TO STRIKE,
THOSE PORTIONS OF THE RECORD SOUGHT TO BE STRICKEN WERE NOT RELIED UPON
BY THE COUNCIL IN REACHING ITS DECISION IN THIS CASE. FOR THESE
REASONS, AND APART FROM OTHER CONSIDERATIONS, THE UNION'S REQUEST AND
MOTION ARE DENIED.
/3/ THE AGENCY ALSO CONTENDS THAT IT IS UNDER NO DUTY TO NEGOTIATE
ABOUT SELECTION PROCEDURES AND TIME LIMITS FOR THE FILLING OF CAPTAIN
POSITIONS (AS IT MAINTAINS THE PROPOSAL WOULD REQUIRE IT TO DO) BECAUSE
SUCH POSITIONS ARE SUPERVISORY AND ARE EXCLUDED FROM THE BARGAINING UNIT
BY SECTION 10(B)(1) OF THE ORDER. SECTION 10(B), HOWEVER, CONCERNS ONLY
THE MAKEUP OF UNITS OF RECOGNITION; IT DOES NOT DEAL WITH THE SCOPE OF
NEGOTIATIONS OR THE OBLIGATION TO BARGAIN. BECAUSE UNIT MAKEUP IS NOT
AT ISSUE HERE, AND IN VIEW OF OUR DECISION WITH RESPECT TO THE
NEGOTIABILITY OF THE PROPOSAL UNDER SECTION 12(B)(2), WE FIND IT
UNNECESSARY TO REACH AND DO NOT RULE UPON THE AGENCY'S CONTENTIONS
RELATIVE TO SECTION 10(B).
/4/ VETERANS ADMINISTRATION INDEPENDENT SERVICE EMPLOYEES UNION AND
VETERANS ADMINISTRATION RESEARCH HOSPITAL, CHICAGO, ILLINOIS, FLRC NO.
71A-31 (NOVEMBER 22, 1972), REPORT NO. 31.
/5/ NATIONAL COUNCIL OF OEO LOCALS, AFGE, AFL-CIO, AND OFFICE OF
ECONOMIC OPPORTUNITY (HARKLESS, ARBITRATOR), FLRC NO. 73A-67 (DECEMBER
6, 1974), REPORT NO. 61.
/6/ IN THIS REGARD, THE PORTION OF THE FIRST PARAGRAPH REQUIRING THAT
NOTICE OF VACANT POSITIONS BE POSTED ON OFFICIAL BULLETIN BOARDS WITHIN
5 DAYS WAS NOT SPECIFICALLY ADDRESSED BY THE PARTIES AND, STANDING
ALONE, DOES NOT CONFLICT WITH THE ORDER.
/7/ LOCAL 174, INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL
ENGINEERS, AFL-CIO, CLC, AND LONG BEACH NAVAL SHIPYARD, FLRC NO. 73A-16,
NOTE 5 (JULY 31, 1974), REPORT NO. 55.
/8/ NATIONAL COUNCIL OF OEO LOCALS, AFGE, AFL-CIO, AND OFFICE OF
ECONOMIC OPPORTUNITY (HARKLESS, ARBITRATOR), FLRC NO. 73A-67 (DECEMBER
6, 1974), REPORT NO. 61.
/9/ THE AGENCY'S ADDITIONAL CLAIM THAT THE PROPOSAL WOULD RESTRICT
MANAGEMENT RIGHTS UNDER VARIOUS PROVISIONS OF SECTION 12(B) IS NOT
ADEQUATELY SUPPORTED IN ITS APPEAL AND, IN VIEW OF OUR DECISION, DOES
NOT WARRANT CONSIDERATION HEREIN.
/10/ LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE, PART IV,
SECTION E.1, AT 42 (1971).
/11/ CF. AFGE (NATIONAL BORDER PATROL COUNCIL AND NATIONAL COUNCIL
OF IMMIGRATION AND NATURALIZATION SERVICE LOCALS) AND IMMIGRATION AND
NATURALIZATION SERVICE, FLRC NO. 73A-25 (SEPTEMBER 30, 1974), REPORT NO.
57, IN WHICH WE HELD, INTER ALIA, THAT A PROPOSAL TO ESTABLISH CERTAIN
STAFFING RATIOS BETWEEN THE NUMBER OF IMMIGRATION INSPECTORS AND THE
NUMBER OF AIR AND SEA PASSENGERS ENTERING THE COUNTRY WAS SIMILARLY
EXCLUDED FROM THE OBLIGATION TO NEGOTIATE BY SECTION 11(B).
/12/ AS WOULD BE THE CASE, FOR INSTANCE, IF SUCH STANDARDS INVOLVED
MATTERS EXCLUDED FROM THE OBLIGATION TO BARGAIN UNDER SECTIONS 11(B) OR
12(B) OF THE ORDER.
3 FLRC 284; FLRC NO. 73A-59; MAY 22, 1975.
DEPARTMENT OF DEFENSE,
STATE OF NEW JERSEY
AND
NATIONAL ARMY AND AIR TECHNICIANS
ASSOCIATION, I.U.E., AFL-CIO
(SYNOPSIS) FLRC NO. 73A-59
DEPARTMENT OF DEFENSE, STATE OF NEW JERSEY, A/SLMR NO. 323. PURSUANT
TO SECTION 2411.4 OF THE COUNCIL'S RULES AND SECTION 203.25(D) OF THE
ASSISTANT SECRETARY'S THEN CURRENT REGULATIONS, THE ASSISTANT SECRETARY
REFERRED THE FOLLOWING MAJOR POLICY ISSUE TO THE COUNCIL FOR DECISION:
WHETHER APPLICABLE LAWS AND REGULATIONS, INCLUDING POLICIES SET FORTH IN
THE FEDERAL PERSONNEL MANUAL, PRECLUDE THE RESPONDENT (DEPARTMENT OF
DEFENSE, STATE OF NEW JERSEY) FROM DISCLOSING TO THE COMPLAINANT
(NATIONAL ARMY AND AIR TECHNICIANS ASSOCIATION, I.U.E., AFL-CIO), IN THE
CONTEXT OF A GRIEVANCE PROCEEDING, CERTAIN RELEVANT AND NECESSARY
DOCUMENTS USED BY THE EVALUATION PANEL IN ASSESSING THE QUALIFICATIONS
OF THE SIX "BEST QUALIFIED" CANDIDATES FOR APPOINTMENT, INCLUDING THE
GRIEVANT.
COUNCIL ACTION (MAY 22, 1975). BASED ON THE CIVIL SERVICE
COMMISSION'S INTERPRETATION OF ITS OWN DIRECTIVES AND RELATED LAWS
PERTAINING TO THE MAJOR POLICY ISSUE, THE COUNCIL HELD THAT APPLICABLE
LAWS AND REGULATIONS, INCLUDING POLICIES SET FORTH IN THE FEDERAL
PERSONNEL MANUAL, DO NOT SPECIFICALLY PRECLUDE THE RESPONDENT FROM
DISCLOSING TO THE GRIEVANT (OR HIS REPRESENTATIVE), IN THE CONTEXT OF A
GRIEVANCE PROCEEDING, CERTAIN RELEVANT AND NECESSARY INFORMATION USED BY
THE EVALUATION PANEL IN ASSESSING THE QUALIFICATIONS OF THE SIX "BEST
QUALIFIED" CANDIDATES FOR APPOINTMENT. THUS, THE COUNCIL RULED, THE
AGENCY CAN MAKE SUCH RELEVANT INFORMATION AVAILABLE TO THE GRIEVANT (OR
HIS REPRESENTATIVE) WITHOUT ANY VIOLATION OF LAW, RULES, OR COMMISSION
DIRECTIVE PROVIDED THE MANNER IN WHICH THE INFORMATION IS MADE AVAILABLE
PROTECTS THE PRIVACY OF THE EMPLOYEES INVOLVED BY MAINTAINING THE
CONFIDENTIALITY OF THE RECORDS CONTAINING SUCH RELEVANT INFORMATION.
FURTHER, THE COUNCIL NOTED, DISCLOSURE TO THE GRIEVANT OF SUCH RELEVANT
MATERIALS (AFTER MEASURES ARE TAKEN TO PROTECT THE PRIVACY OF THE
EMPLOYEES INVOLVED BY PROCEDURES SUCH AS THOSE DESCRIBED IN THE ATTACHED
NLRB DECISION, FLRC NO. 73A-53, REPORT NO. 59) EFFECTUATES THE PURPOSES
OF THE ORDER; I.E., DISCLOSURE MAY ENABLE THE GRIEVANT TO DECIDE
WHETHER OR NOT TO PROCEED WITH HIS GRIEVANCE, WHILE THE REQUISITE
ANONYMITY PROTECTS THE PRIVACY OF THE FEDERAL EMPLOYEE, AS REQUIRED BY
LAW AND REGULATION.
THIS CASE ROSE AS A RESULT OF A COMPLAINT FILED BY THE LABOR
ORGANIZATION (COMPLAINANT) ALLEGING A VIOLATION OF SECTION 19(A)(1) AND
(6) OF THE EXECUTIVE ORDER BASED ON THE ACTIVITY'S (RESPONDENT) REFUSAL
TO PERMIT THE LABOR ORGANIZATION, IN CONNECTION WITH THE PROCESSING OF
AN EMPLOYEE GRIEVANCE, ACCESS TO DOCUMENTS WHICH REFLECTED AN EVALUATION
PANEL'S ASSESSMENT OF "BEST QUALIFIED" CANDIDATES. THE ASSISTANT
SECRETARY CONCLUDED THAT ABSENT THE RESPONDENT'S DEFENSE THAT THE
FEDERAL PERSONNEL MANUAL PROHIBITS THE DISCLOSURE OF SUCH INFORMATION,
HE WOULD ADOPT THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDATION THAT A
VIOLATION OF SECTION 19(A)(1) AND (6) BE FOUND. HOWEVER, THE ASSISTANT
SECRETARY FOUND THAT THE RESPONDENT'S DEFENSE RAISED A MAJOR POLICY ISSE
WHICH REQUIRED RESOLUTION BY THE FEDERAL LABOR RELATIONS COUNCIL.
THEREFORE, PURSUANT TO SECTION 2411.4 OF THE COUNCIL'S RULES AND SECTION
203.25(D) OF HIS REGULATIONS, THE ASSISTANT SECRETARY REFERRED THE
FOLLOWING MAJOR POLICY ISSUE TO THE COUNCIL FOR DECISION: "(W)HETHER
APPLICABLE LAWS AND REGULATIONS, INCLUDING POLICIES SET FORTH IN THE
FEDERAL PERSONNEL MANUAL, PRECLUDE THE RESPONDENT FROM DISCLOSING TO THE
COMPLAINANT, IN THE CONTEXT OF A GRIEVANCE PROCEEDING, CERTAIN RELEVANT
AND NECESSARY DOCUMENTS USED BY THE EVALUATION PANEL IN ASSESSING THE
QUALIFICATIONS OF THE SIX 'BEST QUALIFIED' CANDIDATES FOR APPOINTMENT,
INCLUDING THE GRIEVANT."
SINCE THE ISSUE POSED BY THE ASSISTANT SECRETARY'S REFERRAL RAISED A
QUESTION AS TO THE EFFECT OF "APPLICABLE LAW AND REGULATIONS, INCLUDING
POLICIES SET FORTH IN THE FEDERAL PERSONNEL MANUAL," AND COUNCIL, IN
ACCORDANCE WITH ESTABLISHED PRACTICE, ASKED THE CIVIL SERVICE COMMISSION
FOR AN INTERPRETATION OF ITS DIRECTIVES IN RELATION TO THE MAJOR POLICY
ISSUE.
THE COMMISSION REPLIED, IN PERTINENT PART, AS FOLLOWS: /1/
(O)N AUGUST 29, 1974, WE ISSUED OUR ADVICE ON THE MATTER OF THE
AVAILABILITY OF PERFORMANCE
APPRAISALS OF EMPLOYEES TO OTHER EMPLOYEES AND TO ADJUDICATING
OFFICIALS, IN UNFAIR LABOR
PRACTICE AND SIMILAR PROCEEDINGS. IN SUMMARY, THAT ADVICE WAS THAT
AN EMPLOYEE OR HIS
REPRESENTATIVE WAS PROHIBITED BY COMMISSION DIRECTIVE FROM SEEING THE
APPRAISAL OF ANOTHER
EMPLOYEE UNDER MOST CIRCUMSTANCES, INCLUDING THE CIRCUMSTANCES OF
CASUAL INTEREST OR THE
PURSUIT OF A COMPLAINT THROUGH GRIEVANCE, UNFAIR LABOR PRACTICE, OR
OTHER FORMAL OR INFORMAL
MACHINERY. AN EMPLOYEE MAY SEE HIS OWN APPRAISAL, OF COURSE, AND AN
ADJUDICATING OFFICIAL IS
ENTITLED TO SEE APPRAISALS OF EMPLOYEES' PERFORMANCE WHEN REQUIRED IN
THE CARRYING OUT OF
OFFICIAL DUTIES.
OUR AUGUST 29 ADVICE HAS DIRECT APPLICABILITY TO THE INSTANT
QUESTION, IN THAT IT IS
APPARENT FROM THE REPORT AND RECOMMENDATIONS OF THE ADMINISTRATIVE
LAW JUDGE THAT SUPERVISORY
APPRAISALS OF PERFORMANCE FOR THE SIX CANDIDATES UNDER DISCUSSION
WERE AMONG THE PRINCIPAL
DOCUMENTS USED BY THE EVALUATION PANEL IN ASSESSING QUALIFICATIONS.
THE INSTANT CASE,
HOWEVER, RAISES ISSUES THAT GO BEYOND THOSE PRESENT IN THE EARLIER
CASE, IN THAT DOCUMENTS
OTHER THAN SUPERVISORY PERFORMANCE APPRAISALS ARE INVOLVED. FROM THE
ALJ REPORT AND
RECOMMENDATIONS, IT SEEMS LIKELY THAT AT ISSUE ARE EXPERIENCE,
TRAINING, AND RELATED RECORDS
OF THE SIX CANDIDATES, PLUS WORK SHEETS OR OTHER FILES CREATED BY THE
PROMOTION EVALUATION
PANEL. THE FORMER PRESUMABLY ARE IN SPECIAL PROMOTION FILES
MAINTAINED BY THE AGENCY, OR THEY
COULD TAKE THE FORM OF DOCUMENTS FOUND IN THE OFFICIAL PERSONNEL
FOLDERS MAINTAINED BY THE
AGENCY UNDER INSTRUCTIONS FROM THE CIVIL SERVICE COMMISSION. THE
LATTER REFLECT VARIOUS
ASPECTS OF THE DELIBERATIONS OF THE PANEL, INCLUDING THE
TRANSFORMATION OF THE TOTALITY OF
APPLICANTS' QUALIFICATIONS INTO POINT SCORES WHICH ARE DETERMINATIVE
OF INCLUSION OR
NONINCLUSION ON A LIST OF "BEST QUALIFIED" CANDIDATES, FROM WHICH
SELECTION FOR PROMOTION IS
MADE.
FIRST, WITH RESPECT TO ACCESS TO AN EMPLOYEE'S OFFICIAL PERSONNEL
FOLDER, THE CIVIL SERVICE
COMMISSION HAS DEALT SPECIFICALLY WITH THE QUESTION OF ENTITLEMENT TO
SUCH MATERIAL IN PART
294 OF THE CIVIL SERVICE REGULATIONS. THE APPLICABLE FEDERAL
PERSONNEL MANUAL INSTRUCTIONS,
EXTRACTED FROM SUBCHAPTER 7 OF FPM CHAPTER 294, STATE:
"A. ACTION BEFORE DISCLOSURE OF THE OFFICIAL PERSONNEL FOLDER.
EXCEPT AS PROVIDED IN
PARAGRAPH B(2) OF THIS SECTION, BEFORE THE COMMISSION OR OTHER
GOVERNMENT AGENCY DISCLOSES THE
CONTENTS OF THE OFFICIAL PERSONNEL FOLDER, IT SHALL REMOVE THE
FOLLOWING INFORMATION FROM THE
FOLDER:
(1) MEDICAL INFORMATION IN ACCORDANCE WITH SUBCHAPTER 4 OF THIS
CHAPTER.
(2) TEST MATERIAL AND COPIES OF CERTIFICATES AND OTHER LISTS OF
ELIGIBLES IN ACCORDANCE
WITH SUBCHAPTER 5.
(3) INVESTIGATIVE REPORTS IN ACCORDANCE WITH SUBCHAPTER 6.
(4) LOYALTY AND SECURITY INVESTIGATIVE INFORMATION IN ACCORDANCE WITH
SUBCHAPTER 6 OF THIS
CHAPTER AND SUBCHAPTER 2 OF CHAPTER 293.
(5) CONFIDENTIAL QUESTIONNAIRES AND EMPLOYMENT INQUIRIES OBTAINED IN
CONFIDENCE IN
ACCORDANCE WITH CHAPTER 731.
B. PERSONS AUTHORIZED ACCESS TO ACTIVE FOLDERS. THE OFFICIAL
PERSONNEL FOLDER IS TO BE
DISCLOSED BY THE COMMISSION OR OTHER GOVERNMENT AGENCY TO TO THE
FOLLOWING PERSONS:
(1) EMPLOYEE OR FORMER EMPLOYEE. SUBJECT TO PARAGRAPH A OF THIS
SECTION, THE OFFICIAL
PERSONNEL FOLDER OF A GOVERNMENT EMPLOYEE OR FORMER GOVERNMENT
EMPLOYEE SHALL BE DISCLOSED TO
HIM, OR TO HIS REPRESENTATIVE DESIGNATED IN WRITING, OR TO ANY OTHER
PERSON WHO HAS THE
WRITTEN CONSENT OF THE EMPLOYEE OR FORMER EMPLOYEE . . . . HOWEVER,
THE DISCLOSURE MUST BE IN
THE PRESENCE OF A REPRESENTATIVE OF THE AGENCY HAVING CUSTODY OF THE
FOLDER. WHEN POSSIBLE,
THE REPRESENTATIVE SHOULD BE FROM THE PERSONNEL OFFICE . . . .
(2) OFFICIALS OF THE EXECUTIVE BRANCH. AN OFFICIAL PERSONNEL FOLDER
SHALL BE DISCLOSED TO
AN OFFICIAL OF THE EXECUTIVE BRANCH OF THE GOVERNMENT WHO HAS A NEED
FOR THE INFORMATION IN
THE PERFORMANCE OF HIS OFFICIAL DUTIES WITHOUT RESTRICTION.
(3) OTHER FEDERAL OFFICIALS." (THIS PROVISION DEALS WITH DISCLOSURE
OF FILES TO MEMBERS OF
CONGRESS, OFFICIALS OF THE LEGISLATIVE AND JUDICIAL BRANCHES, AND THE
DISTRICT OF COLUMBIA.)
BY WAY OF AN INTERPRETIVE NOTE, WE WOULD COMMENT THAT THE PHRASE
"PERFORMANCE OF HIS OFFICIAL DUTIES" (PARAGRAPH B(2), ABOVE) HAS
APPROXIMATELY THE SAME MEANING AS THE PHRASE "HIS OFFICIAL
RESPONSIBILITIES" IN SUBCHAPTER 5 OF FPM CHAPTER 335, DISCUSSED IN OUR
LETTER OF AUGUST 29. THAT IS, IT REFERS TO THOSE RESPONSIBILITIES
OFFICIALLY ASSIGNED, SUPERVISED, ETC., BY OR THROUGH APPROPRIATE AGENCY
AUTHORITY. WE WOULD ALSO COMMENT THAT, WHILE THE COMMISSION'S
INSTRUCTIONS AS QUOTED ABOVE DEAL EXPLICITLY WITH AN OFFICIAL PERSONNEL
FOLDER ESTABLISHED UNDER PART 293 OF THE COMMISS;ON'S REGULATIONS, IT IS
THE INTENT OF THE INSTRUCTION TO COVER WITH EQUAL FORCE PERSONNEL
RECORDS AND FILES WHICH ARE IDENTICAL OR TANTAMOUNT TO RECORDS IN AN
OFFICIAL PERSONNEL FOLDER, BUT WHICH ARE MAINTAINED SEPARATELY OR AS A
DUPLICATE SET FOR THE CONVENIENCE OF EASY REFERENCE IN ADMINISTERING A
SPECIFIC PERSONNEL PROGRAM, SUCH AS MERIT PROMOTION.
BEFORE ANALYZING THE ABOVE-QUOTED INSTRUCTION IN TERMS OF THE CASE AT
HAND, IT IS APPROPRIATE TO SPEAK TO ANY COMMISSION DIRECTIVES THAT
PERTAIN TO THE OTHER MATERIALS IN QUESTION-- RATING SHEETS, POINT
SCORES, THE PROMOTION CERTIFICATE ITSELF, AND ANY OTHER DOCUMENTS
PRODUCED BY THE EVALUATION PANEL.
SUBCHAPTER 6 OF FPM CHAPTER 335 SPECIFIES RECORDS THAT MUST BE
MAINTAINED IN ORDER TO ASSIST CIVIL SERVICE COMMISSION INSPECTORS IN
AUDITING ADHERENCE TO COMMISSION REQUIREMENTS. THESE RECORDS ARE TO
INCLUDE:
"A TEMPORARY RECORD OF EACH PROMOTION MADE UNDER EACH PLAN . . . .
IT MUST CONTAIN
SUFFICIENT INFORMATION TO ALLOW RECONSTRUCTION OF THE PROMOTION
ACTION. AT A MINIMUM, THE
RECORD MUST INCLUDE . . .
(E) EVALUATION METHODS AND SYSTEM FOR COMBINING EVALUATIONS TO OBTAIN
FINAL RATINGS;
(F) EVALUATIONS OF THE CANDIDATES (INCLUDING SUPERVISORY APPRAISALS,
TEST SCORES, ETC.);
(G) NAMES OF CANDIDATES AS THEY APPEARED IN THE FINAL RANKING; . . .
"
THE INSTRUCTIONS IN SUBCHAPTER 6, HOWEVER, DO NOT DEAL EXPLICITLY
WITH THE QUESTION OF ACCESS TO THESE RECORDS BY EMPLOYEES OR THEIR
REPRESENTATIVES. SUBCHAPTER 5 OF FPM CHAPTER 335 DOES, ALBEIT
INDIRECTLY, BY SPECIFYING WHAT INFORMATION AN EMPLOYEE IS ENTITLED TO
HAVE ABOUT MERIT PROMOTION. SECTION 5-2 OF THIS SUBCHAPTER SPECIFIES IN
CONSIDERABLE DETAIL THE INFORMATION THAT MUST BE MADE AVAILABLE TO AN
EMPLOYEE ABOUT PROMOTION PLANS, ABOUT OPPORTUNITIES, ABOUT QUALIFICATION
REQUIREMENTS, EVALUATION TECHNIQUES, AND RANKING METHODS, ABOUT HOW
VACANCIES MAY BE FILLED, AND ABOUT HOW QUESTIONS MAY BE SURFACED AND
COMPLAINTS RESOLVED. WITH RESPECT TO SPECIFIC PROMOTION ACTIONS, THIS
SECTION PROVIDES THAT:
"THE FOLLOWING INFORMATION ABOUT SPECIFIC PROMOTION ACTIONS IS
AVAILABLE TO AN EMPLOYEE
UPON HIS REQUEST, AND AN AGENCY IS REQUIRED TO INFORM EMPLOYEES
PERIODICALLY OF THEIR RIGHT TO
THIS INFORMATION:
(1) WHETHER THE EMPLOYEE WAS CONSIDERED FOR PROMOTION AND, IF SO,
WHETHER HE WAS FOUND
ELIGIBLE ON THE BASIS OF THE MINIMUM QUALIFICATION REQUIREMENTS FOR
THE POSITION;
(2) WHETHER THE EMPLOYEE WAS ONE OF THOSE IN THE GROUP FROM WHICH
SELECTION WAS MADE;
(3) WHO WAS SELECTED FOR PROMOTION; AND
(4) IN WHAT AREAS, IF ANY, THE EMPLOYEE SHOULD IMPROVE HIMSELF TO
INCREASE HIS CHANCES OF
FUTURE PROMOTION."
IT IS CLEAR FROM THE FOREGOING THAT THE COMMISSION INSTRUCTIONS, AS
SET FORTH IN THE FEDERAL PERSONNEL MANUAL, DO NOT SPECIFICALLY PROHIBIT
ACCESS ON THE PART OF THE GRIEVANT OR HIS REPRESENTATIVE TO THE
MATERIALS AT ISSUE IN THIS CASE. NEITHER DO THEY AUTHORIZE SUCH ACCESS.
IN THE ABSENCE OF A CLEAR PROHIBITION OR A CLEAR ENTITLEMENT, WE MUST
BE GUIDED BY THE PRINCIPLES UNDERLYING THE COMMISSION'S INSTRUCTIONS ON
ACCESS TO PERSONNEL RECORDS, AS THEY APPLY TO THIS PARTICULAR CASE.
THE COMMISSION'S PRIMARY INTEREST, AS CAN BE SEEN IN THE FPM'S
PROHIBITION ON CASUAL ACCESS AND IN THE DISTINCTION BETWEEN AN
EMPLOYEE'S ACCESS TO HIS OWN RECORDS AND TO THOSE OF OTHERS, IS TO
SAFEGUARD THE PRIVACY OF FEDERAL EMPLOYEES. IT HAS NEVER BEEN THE
COMMISSION'S INTENTION THAT INFORMATION NECESSARY TO THE PROCESSING OF
AN EMPLOYEE GRIEVANCE BE WITHHELD ABSOLUTELY FROM THE GRIEVANT OR HIS
REPRESENTATIVE. THE AGENCIES' RESPONSIBILITY TO PROTECT EMPLOYEES FROM
INVASION OF PRIVACY BY LIMITING ACCESS TO THEIR PERSONNEL RECORDS IS A
VERY SERIOUS ONE. IN THE GREAT MAJORITY OF CASES, HOWEVER, WE BELIEVE
THIS RESPONSIBILITY IS FULLY COMPATIBLE WITH DISCLOSURE OF SUFFICIENT
INFORMATION TO THE GRIEVANT OR HIS REPRESENTATIVE TO ENABLE HIM TO
DECIDE WHETHER TO PROCEED WITH HIS GRIEVANCE AND TO DEVELOP HIS CASE.
THE METHODS OF "SANITIZING" RECORDS, SUCH AS BLOCKING OUT IDENTIFYING
MARKS, AND ABSTRACTING OR SUMMARIZING THE CONTENTS OF DOCUMENTS,
DISCUSSED IN CONNECTION WITH THE PREPARATION OF AN OFFICIAL GRIEVANCE
FILE IN OUR AUGUST 29 LETTER, ARE EQUALLY RELEVANT TO THE CASE AT HAND.
IN SUMMARY, SINCE WE FIND NO SPECIFIC PROHIBITION IN LAW OR
COMMISSION INSTRUCTIONS CONCERNING ACCESS TO THE MATERIALS IN QUESTION
ON THE PART OF THE GRIEVANT OR HIS REPRESENTATIVE, AND IN VIEW OF THE
AVAILABILITY OF METHODS FOR PROTECTING THE PRIVACY OF EMPLOYEES WHILE
DIVULGING RELEVANT INFORMATION FROM THEIR RECORDS, WE BELIEVE THE AGENCY
CAN MAKE AVAILABLE THE REQUESTED MATERIALS (INCLUDING "SANITIZED"
PERFORMANCE APPRAISALS) TO THE GRIEVANT OR HIS REPRESENTATIVE WITHOUT
ANY VIOLATION OF LAW, RULE, OR COMMISSION DIRECTIVE.
THEREFORE, IN RESPONSE TO THE ASSISTANT SECRETARY'S QUESTION,
APPLICABLE LAWS AND REGULATIONS, INCLUDING POLICIES SET FORTH IN THE
FEDERAL PERSONNEL MANUAL, DO NOT SPECIFICALLY PRECLUDE THE RESPONDENT
FROM DISCLOSING TO THE GRIEVANT (OR HIS REPRESENTATIVE), IN THE CONTEXT
OF A GRIEVANCE PROCEEDING, CERTAIN RELEVANT AND NECESSARY INFORMATION
USED BY THE EVALUATION PANEL IN ASSESSING THE QUALIFICATIONS OF THE SIX
"BEST QUALIFIED" CANDIDATES FOR APPOINTMENT. THUS, THE AGENCY CAN MAKE
SUCH RELEVANT INFORMATION AVAILABLE TO THE GRIEVANT (OR HIS
REPRESENTATIVE) WITHOUT ANY VIOLATION OF LAW, RULES, OR COMMISSION
DIRECTIVE PROVIDED THE MANNER IN WHICH THE INFORMATION IS MADE AVAILABLE
PROTECTS THE PRIVACY OF THE EMPLOYEES INVOLVED BY MAINTAINING THE
CONFIDENTIALITY OF THE RECORDS CONTAINING SUCH RELEVANT INFORMATION.
IN THE COUNCIL'S VIEW, DISCLOSURE TO THE GRIEVANT OF SUCH RELEVANT
MATERIALS (AFTER MEASURES ARE TAKEN TO PROTECT THE PRIVACY OF THE
EMPLOYEES INVOLVED BY PROCEDURES SUCH AS THOSE DESCRIBED IN THE
APPENDIX) EFFECTUATES THE PURPOSES OF THE ORDER. THAT IS, DISCLOSURE OF
THE MATERIALS MAY ENABLE THE GRIEVANT TO DECIDE WHETHER OR NOT TO
PROCEED WITH HIS GRIEVANCE, WHILE THE REQUISITE ANONYMITY PROTECTS THE
PRIVACY OF THE FEDERAL EMPLOYEE, AS REQUIRED BY LAW AND REGULATION.
BY THE COUNCIL.
ATTACHMENT
ISSUED: MAY 22, 1975
NATIONAL LABOR RELATIONS
BOARD, REGION 17, AND
NATIONAL LABOR RELATIONS BOARD
AND
DAVID A. NIXON
DURING HIS CONSIDERATION OF A MOTION AND A CROSS MOTION FILED BY THE
PARTIES IN CONNECTION WITH HIS DECISION AND REMAND IN A/SLMR NO. 295,
THE ASSISTANT SECRETARY FOUND THAT CERTAIN MAJOR POLICY ISSUES HAD BEEN
RAISED WHICH REQUIRED RESOLUTION BY THE FEDERAL LABOR RELATIONS COUNCIL.
THEREFORE, PURSUANT TO SECTION 2411.4 OF THE COUNCIL'S RULES AND
SECTION 203.25(D) OF THE ASSISTANT SECRETARY'S REGULATIONS, HE REFERRED
THE FOLLOWING MAJOR POLICY ISSUES TO THE COUNCIL FOR DECISION: (1)
"WHETHER APPLICABLE LAWS AND REGULATIONS, INCLUDING POLICIES SET FORTH
IN THE FEDERAL PERSONNEL MANUAL, PRECLUDE AN EMPLOYEE OR HIS
REPRESENTATIVE FROM SEEING AND ADDUCING EVIDENCE WITH RESPECT TO THS
APPRAISAL OF ANOTHER EMPLOYEE IN THE CONTEXT OF AN UNFAIR LABOR PRACTICE
PROCEEDING HELD PURSUANT TO SECTION 6(A)(4) OF EXECUTIVE ORDER 11491, AS
AMENDED, AND (2), IF AN EMPLOYEE OR HIS REPRESENTATIVE IS SO PRECLUDED
FROM SEEING AND ADDUCING EVIDENCE WITH RESPECT TO THE APPRAISAL OF
ANOTHER EMPLOYEE, DOES SUCH PROHIBITION APPLY ALSO TO THE ASSISTANT
SECRETARY, HIS REPRESENTATIVES AND/OR ADMINISTRATIVE LAW JUDGES ACTING
PURSUANT TO THEIR RESPONSIBILITIES UNDER THE ORDER?"
SINCE THE ISSUES POSED BY THE ASSISTANT SECRETARY'S REFERRAL RAISED A
QUESTION AS TO THE EFFECT OF "APPLICABLE LAW AND REGULATIONS, INCLUDING
POLICIES SET FORTH IN THE FEDERAL PERSONNEL MANUAL," THE COUNCIL ASKED
THE CIVIL SERVICE COMMISSION FOR AN INTERPRETATION OF ITS DIRECTIVES IN
RELATION TO THE TWO MAJOR POLICY ISSUES.
THE COMMISSION REPLIED AS FOLLOWS:
THE APPLICABLE COMMISSION POLICY DIRECTIVE IS FOUND IN SUBCHAPTER 5,
CHAPTER 335 OF THE
FEDERAL PERSONNEL MANUAL, WHICH STATES IN PART THAT
" . . . AN EMPLOYEE IS NOT ENTITLED TO SEE AN APPRAISAL OF ANOTHER
EMPLOYEE. NEVERTHELESS,
THE REPRESENTATIVE OF AN EMPLOYEE (EVEN THOUGH AN EMPLOYEE HIMSELF)
MAY SEE THE EMPLOYEE'S
APPRAISAL, AND AN EMPLOYEE MAY SEE THE APPRAISAL OF OTHER EMPLOYEES
WHEN DICTATED BY HIS
OFFICIAL RESPONSIBILITIES, FOR EXAMPLE, AS MEMBER OF A PROMOTION
BOARD."
THIS DIRECTIVE PROHIBITS AN EMPLOYEE OR HIS REPRESENTATIVE FROM
SEEING THE APPRAISAL OF
ANOTHER EMPLOYEE UNDER MOST CIRCUMSTANCES, INCLUDING THE
CIRCUMSTANCES OF CASUAL INTEREST OR
THE PURSUIT OF A COMPLAINT THROUGH GRIEVANCE, UNFAIR LABOR PRACTICE,
OR OTHER FORMAL OR
INFORMAL MACHINERY. IT, ON THE OTHER HAND, BY ITS OWN TERMS CLEARLY
PERMITS THE ASSISTANT
SECRETARY, HIS REPRESENTATIVE, AN ADMINISTRATIVE LAW JUDGE, OR ANY
OTHER PERSON HAVING
OFFICIAL RESPONSIBILITY IN CONNECTION WITH THE INVESTIGATION,
EXAMINATION, OR DECISION ON
MATTERS AT ISSUE IN A PROCEEDING TO SEE THE APPRAISAL OF ANOTHER
EMPLOYEE IF REVIEW OF THE
APPRAISAL IS NECESSARY FOR THE EXECUTION OF THAT RESPONSIBILITY.
HOWEVER, SUCH PERSON, UPON
GAINING ACCESS TO THE APPRAISAL, MUST CARRY OUT HIS RESPONSIBILITY
(INCLUDING ANY
RESPONSIBILITY HE MAY HAVE TO DEVELOP AND MAKE AVAILABLE A COMPLETE
RECORD OR FILE CONTAINING
ALL DOCUMENTS RELATED TO THE PROCEEDING) IN SUCH A FASHION AS TO NOT
COMPROMISE THE
FUNDAMENTAL REQUIREMENT THAT, EXCEPT UNDER LIMITED CIRCUMSTANCES NOT
GERMANE HERE, "AN
EMPLOYEE IS NOT ENTITLED TO SEE AN APPRAISAL OF ANOTHER EMPLOYEE."
BASIC TO THE ABOVE POLICY IS THE RECOGNITION THAT DISCLOSURE TO
EMPLOYEES (OR THEIR
REPRESENTATIVES) OF SUPERVISORY APPRAISALS OF PERFORMANCE OF OTHER
EMPLOYEES, OR THE INCLUSION
OF SUCH APPRAISALS IN AN OPEN FILE, IS POTENTIALLY CLEARLY INVASIVE
OF THEIR PERSONAL
PRIVACY. THE ABOVE POLICY, AND THIS INTERPRETATIO;, ALSO RECOGNIZES
THAT "OFFICIAL
RESPONSIBILITIES" IN THE CONTEXT OF THE ABOVE CITED DIRECTIVE REFERS
TO THOSE
RESPONSIBILITIES OFFICIALLY ASSIGNED, SUPERVISED, ETC., BY OR THROUGH
APPROPRIATE AGENCY
AUTHORITY. THE FACT THAT A FUNCTION MAY APPROPRIATELY BE PERFORMED
ON OFFICIAL TIME DOES NOT
ALONE SERVE TO BRING IT WITHIN THE EMBRACE OF THE TERM, "OFFICIAL
RESPONSIBILITIES." REASONABLE AMOUNTS OF OFFICIAL TIME MAY BE
PERMITTED FOR A NUMBER OF
ACTIVITIES THAT ARE NOT APPROPRIATELY DIRECTED OR SUPERVISED BY
PROPER AGENCY AUTHORITY AND
WHICH SIMPLY COULD NOT BE REASONABLY CONSTRUED AS OFFICIAL
RESPONSIBILITIES OF THE EMPLOYEE
INVOLVED. EXAMPLES INCLUDE OFFICIAL TIME FOR AN EMPLOYEE TO PREPARE
AN ADVERSE ACTION
DEFENSE, OR OFFICIAL TIME TO SERVE AS A MEMBER OF A UNION NEGOTIATING
TEAM.
THE ABOVE POLICY OF COURSE RAISES THE SECONDARY QUESTION OF HOW AN
EMPLOYEE WHO HAS ACCESS TO AN APPRAISAL BY VIRTUE OF HIS OFFICIAL
RESPONSIBILITY FOR INVESTIGATING, EXAMINING, OR ADJUDICATING A COMPLAINT
CAN PROTECT THE PRIVACY OF EMPLOYEES BY MAINTAINING THE CONFIDENTIALLY
OF THAT APPRAISAL UNDER CIRCUMSTANCES WHERE THAT OFFICIAL IS REQUIRED TO
DEVELOP AND MAKE AVAILABLE A COMPLETE RECORD OR FILE CONTAINING ALL
DOCUMENTS RELATING TO THE PROCEEDING.
ILLUSTRATIONS OF HOW THIS MAY BE ACCOMPLISHED ARE FOUND IN A NUMBER
OF PROCEEDINGS FOR WHICH THE COMMISSION HAS RESPONSIBILITY. FOR
EXAMPLE, THE GRIEVANCE SYSTEM ESTABLISHED UNDER THE AUTHORITY OF PART
771 OF THE CIVIL SERVICE REGULATIONS REQUIRES, AS A MATTER OF GRIEVANCE
POLICY, THAT AN AGENCY GRIEVANCE EXAMINER "MUST ESTABLISH AN EMPLOYEE
GRIEVANCE FILE. THIS IS AN INDEPENDENT FILE, SEPARATE AND DISTINCT FROM
THE OFFICIAL PERSONNEL FOLDER. THE GRIEVANCE FILE IS THE OFFICIAL
RECORD OF THE GRIEVANCE PROCEEDINGS AND MUST CONTAIN ALL DOCUMENTS
RELATED TO THE GRIEVANCE . . . " (SUBCHAPTER 3 OF FEDERAL PERSONNEL
MANUAL CHAPTER 771)
HOWEVER, WITH RESPECT TO MATTERS THAT CANNOT BE DISCLOSED TO THE
GRIEVANT, SUBCHAPTER 1 OF THAT CHAPTER PROVIDES, IN PERTINENT PART, THAT
"INFORMATION TO WHICH THE EXAMINER IS EXPOSED WHICH CANNOT BE MADE
AVAILABLE TO THE EMPLOYEE IN THE FORM IN WHICH IT WAS RECEIVED MUST BE
INCLUDED IN THE FILE IN A FORM WHICH THE EMPLOYEE CAN REVIEW OR MUST NOT
BE USED." THUS, UNDER THAT GRIEVANCE SYSTEM, AN EXAMINER MAY CONCLUDE
THAT THE CONTENTS OF A SUPERVISORY APPRAISAL ARE EITHER NOT RELEVANT OR
NOT NECESSARY FOR THE RESOLUTION OF THE MATTER AND THUS NEED NOT BE MADE
A PART OF THE FILE OR, IF ITS CONTENTS ARE RELEVANT AND NECESSARY, THEN
HE MUST INCLUDE IT IN THE FILE "IN A FORM WHICH THE EMPLOYEE CAN
REVIEW."
FOR AN ILLUSTRATION OF HOW THIS CAN BE DONE, WE DRAW FROM ANOTHER
PROCEEDING-- COMPLAINTS OF DISCRIMINATION PROCESSED UNDER PART 713 OF
THE CIVIL SERVICE REGULATIONS. THE HANDBOOK FOR DISCRIMINATION
COMPLAINTS EXAMINERS PUBLISHED BY THE COMMISSION IN APRIL, 1973, GIVES
SPECIFIC INSTRUCTIONS IN THIS AREA AND DOES SO WITH SPECIFIC REFERENCE
TO SUPERVISORY APPRAISALS OF PERFORMANCE. THAT HANDBOOK PROVIDES AS
FOLLOWS:
"SUPERVISORY APPRAISALS
1. DISCLOSURE-- AN INVASION OF PRIVACY
THE DISCLOSURE OF SUPERVISORY APPRAISALS OF PERFORMANCE AND POTENTIAL
OF EMPLOYEES OTHER
THAN THE COMPLAINANT, TO THE COMPLAINANT, CONSTITUTES AN UNWARRANTED
INVASION OF THE PERSONAL
PRIVACY OF THE EMPLOYEES CONCERNED. HOWEVER, THIS DOES NOT PRECLUDE
THE INVESTIGATOR OR
COMPLAINTS EXAMINER FROM REVIEWING THE SUPERVISORY APPRAISALS OF
OTHER EMPLOYEES AND INCLUDING
INFORMATION FROM THEM IN THE RECORD TO THE EXTENT THAT THIS CAN BE
DONE WITHOUT IDENTIFYING A
PARTICULAR EMPLOYEE AS BEING THE SUBJECT OF A PARTICULAR APPRAISAL.
WITNESSES MAY TESTIFY AT
A HEARING TO MATTERS RELEVANT TO SUPERVISORY APPRAISALS OF
PERFORMANCE AND POTENTIAL OF
EMPLOYEES.
2. CONCEALING NAME OF PERSON APPRAISED
WHEN THE SUPERVISORY APPRAISALS OF SEVERAL OTHER EMPLOYEES ARE
INVOLVED IN A COMPLAINT, IT
MIGHT BE POSSIBLE TO MAKE THEM ANONYMOUS BY TAPING OVER OR OTHERWISE
CONCEALING THE
EMPLOYEES' NAMES AND OTHER IDENTIFYING INFORMATION. COPIES OF THE
TAPED-OVER APPRAISALS CAN
THEN BE MADE AND INCLUDED IN THE FILE. IF THE FORM AND CONTENT OF
THE APPRAISALS DO NOT LEND
THEMSELVES TO THIS KIND OF TREATMENT TO ASSURE CONFIDENTIALITY, IT
MAY BE POSSIBLE TO INCLUDE
PERTINENT EXTRACTS AND, IF SO, THIS SHOULD BE DONE.
3. NARRATIVE STATEMENT OF
IF THERE IS NO WAY THAT THE APPRAISALS OR EXTRACTS THEREFROM CAN BE
INCLUDED WITHOUT
IDENTIFYING THE SUBJECT OF EACH APPRAISAL, THE ONLY ALTERNATIVE IS
FOR THE INVESTIGATOR OF
COMPLAINTS EXAMINER TO INCLUDE IN THE RECORD A NARRATIVE STATEMENT OF
THE RESULTS OF HIS
REVIEW OF THE APPRAISALS. THIS CAN CONSIST OF SOMETHING AS SIMPLE AS
A STATEMENT THAT THE
INVESTIGATOR OR EXAMINER HAD FOUND THE APPRAISALS NOT MATERIAL TO THE
COMPLAINT, OR SOMETHING
AS EXTENSIVE AS A PARAPHRASE OF EACH APPRAISAL.
4. CHALLENGE TO ACCURACY OF NARRATIVE STATEMENTS
IF THE COMPLAINANT CHALLENGES THE ACCURACY OF THE MATERIAL INCLUDED
BY THE INVESTIGATOR
CONCERNING OTHER EMPLOYEES' APPRAISALS, THE EXAMINER MAY VERIFY THE
ACCURACY OF THAT MATERIAL
BY REVIEWING THE APPRAISALS HIMSELF. SIMILARLY, THE DECIDING
OFFICIAL CAN MAKE AN INDEPENDENT
VERIFICATION IF HE FEELS THE NEED TO DO SO. THIS WOULD NOT BE IN
CONFLICT WITH THE
INSTRUCTIONS IN APPENDIX B OF FPM CHAPTER 713 BECAUSE THE PURPOSE OF
ANY REVIEW OF THE
APPRAISALS BY THE EXAMINER OR THE DECIDING OFFICIAL WOULD BE TO
ASSURE THE ACCURACY OF THE
INFORMATION IN THE RECORD, NOT TO ACQUIRE AND CONSIDER INFORMATION
NOT IN THE RECORD."
THE ABOVE ILLUSTRATIONS ARE CITED NOT TO SUGGEST THEIR SPECIFIC
APPLICABILITY IN THE CASE AT HAND BUT RATHER TO ILLUSTRATE HOW THE
POLICY OF NONDISCLOSURE OF SUPERVISORY APPRAISALS CITED IN CHAPTER 335
OF THE FEDERAL PERSONNEL MANUAL MAY BE ACCOMMODATED IN OPEN PROCEEDINGS
WHERE A FORMAL FILE OR RECORD IS REQUIRED TO BE ESTABLISHED.
THEREFORE, IN RESPONSE TO THE ASSISTANT SECRETARY'S QUESTIONS, THE
FEDERAL PERSONNEL MANUAL: (1) PROHIBITS AN EMPLOYEE OR HIS
REPRESENTATIVE FROM SEEING AND ADDUCING EVIDENCE WITH RESPECT TO THE
APPRAISAL OF ANOTHER EMPLOYEE IN THE CONTEXT OF AN UNFAIR LABOR PRACTICE
PROCEEDING, BUT (2) PERMITS THE ASSISTANT SECRETARY, HIS REPRESENTATIVE
AND/OR THE ADMINISTRATIVE LAW JUDGE, ACTING PURSUANT TO THEIR
RESPONSIBILITIES IN A PROCEEDING UNDER THE ORDER, TO SEE THE APPRAISAL
OF ANOTHER EMPLOYEE IF REVIEW OF SUCH APPRAISAL IS NECESSARY FOR THE
EXECUTION OF OFFICIAL RESPONSIBILITY, BUT ONLY IF DONE IN A MANNER THAT
MAINTAINS THE CONFIDENTIALITY OF THAT APPRAISAL, WHILE ACCOMMODATING THE
NEED FOR ESTABLISHMENT OF A FORMAL FILE IN OPEN PROCEEDING BY ADHERING
TO THE GUIDELINES SET FORTH IN THE CIVIL SERVICE COMMISSION RESPONSE.
WHILE THE COUNCIL NOTES THAT THE CIVIL SERVICE REGULATIONS SET FORTH
BY WAY OF EXAMPLE ARE NOT BY THEIR OWN TERMS APPLICABLE TO THE SITUATION
HERE PRESENTED, ADOPTION OF SUBSTANTIALLY SIMILAR PROCEDURES BY THE
ASSISTANT SECRETARY WOULD BE CONSISTENT WITH THE PURPOSES OF THE ORDER
WHILE STILL PROTECTING THE PRIVACY OF THE FEDERAL EMPLOYEES, AS REQUIRED
BY APPLICABLE LAW AND REGULATION. THAT IS, SUCH PROCEDURES WOULD ENABLE
THE ASSISTANT SECRETARY TO CARRY OUT HIS RESPONSIBILITY OF DECIDING
UNFAIR LABOR PRACTICE COMPLAINTS BASED UPON ALL NECESSARY AND RELEVANT
FACTS, AND STILL PROTECT THE PRIVACY OF FEDERAL EMPLOYEES.
BY THE COUNCIL.
ISSUED: OCTOBER 31, 1974
/1/ IT WILL BE NOTED THAT, IN ITS REPLY, THE CIVIL SERVICE COMMISSION
REFERS TO AN EARLIER REPLY IN ANOTHER CASE WHICH WAS DATED AUGUST 29,
1974. THE FULL SUBSTANCE OF THE CIVIL SERVICE COMMISSION'S EARLIER
ADVICE AS CONTAINED IN THAT LETTER OF AUGUST 29, 1974, WAS INCORPORATED
IN THE COUNCIL'S DECISION IN NATIONAL LABOR RELATIONS BOARD, REGION 17,
AND NATIONAL LABOR RELATIONS BOARD AND DAVID A. NIXON, FLRC NO. 73A-53
(OCTOBER 31, 1974), REPORT NO. 59, WHICH IS REPRODUCED AS AN APPENDIX TO
THIS OPINION.
3 FLRC 279; FLRC NO. 73A-56; MAY 22, 1975.
MR. TERRY R. YELLIG
OFFICE OF THE SOLICITOR
U.S. DEPARTMENT OF LABOR
ROOM N-2414 - 200 CONSTITUTION AVENUE, NW.
WASHINGTON, D.C. 20210
MR. HERBERT KELLY
DEPARTMENT OF LABOR LOCAL 12
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
ROOM N-2101 - 200 CONSTITUTION AVENUE, NW.
WASHINGTON, D.C. 20210
(SYNOPSIS) FLRC NO. 73A-56
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, DEPARTMENT OF
LABOR LOCAL 12 AND U.S. DEPARTMENT OF LABOR (HARKLESS, ARBITRATOR). THE
COUNCIL ACCEPTED THE AGENCY'S PETITION FOR REVIEW OF THE ARBITRATOR'S
AWARD IN THIS CASE, WHICH AWARD ORDERED THAT THE GRIEVANT BE GRANTED A
RETROACTIVE PROMOTION (REPORT NO. 49). CONSISTENT WITH ITS USUAL
PRACTICE, THE COUNCIL THEREAFTER REQUESTED THE CIVIL SERVICE COMMISSION,
WHICH IS AUTHORIZED TO PRESCRIBE REGULATIONS TO IMPLEMENT THE STATUTES
HERE APPLICABLE, TO FURNISH AN INTERPRETATION OF THESE STATUTES AND
IMPLEMENTING CSC REGULATIONS AS THEY PERTAIN TO THE ARBITRATOR'S AWARD.
THE CIVIL SERVICE COMMISSION REPLIED THAT ANSWERS TO THREE STATED
QUESTIONS WERE REQUIRED, IN ORDER TO RENDER A DEFINITIVE RESPONSE TO THE
COUNCIL'S REQUEST.
COUNCIL ACTION /1/ (MAY 22, 1975). THE COUNCIL HELD THAT IT IS
NECESSARY FOR THE PARTIES TO FURNISH THE COUNCIL WITH ANSWERS TO THE
QUESTIONS POSED BY THE COMMISSION. ACCORDINGLY, THE COUNCIL DIRECTED
THE PARTIES: (1) TO FURNISH THE COUNCIL, ON OR BEFORE JUNE 9, 1975,
WITH SUCH ANSWERS BY A STIPULATION BETWEEN THE PARTIES; OR (2) TO
RESUBMIT THE CASE TO THE ARBITRATOR FOR HIS ANSWERS TO SUCH QUESTIONS,
AND, WITHIN 15 DAYS AFTER THE ARBITRATOR'S ACTION, FILE WITH THE COUNCIL
THE ARBITRATOR'S SUPPLEMENTAL AWARD; AND (3) TO SUBMIT WITH SUCH
ANSWERS ANY STATEMENTS OF POSITION WHICH THE RESPECTIVE PARTIES WISH TO
BE CONSIDERED BY THE COUNCIL.
GENTLEMEN:
REFERENCE IS MADE TO THE AGENCY'S PETITION FOR REVIEW OF THE
ARBITRATOR'S AWARD IN THE ABOVE-ENTITLED CASE. THE ARBITRATOR
DETERMINED THAT THE AGENCY'S ACTION DID NOT VIOLATE THE COLLECTIVE
BARGAINING AGREEMENT OR THE FEDERAL PERSONNEL MANUAL NOR DID IT
IMPROPERLY DELAY THE GRIEVANT'S PROMOTION TO CLERK-TYPIST, GS-4 (ON OR
ABOUT FEBRUARY 1, 1973) OR IMPAIR HER CAREER DEVELOPMENT. AS HIS AWARD,
THE ARBITRATOR (1) DENIED THE GRIEVANCE, AND (2) ORDERED THE AGENCY TO
MAKE THE GRIEVANT'S PROMOTION TO CLERK-TYPIST, GS-4, EFFECTIVE AS OF
JULY 31, 1972, BECAUSE "THE GRIEVANT'S PROPOSED PROMOTION WAS STAYED
UNDER ARTICLE VI, SECTION L OF THE AGREEMENT PENDING FINAL DETERMINATION
OF THE GRIEVANCE."
IN ITS PETITION FOR REVIEW, THE AGENCY TOOK EXCEPTION TO THE REMEDY
PROVIDED BY THE ARBITRATOR IN THE AWARD ON THE GROUND THAT IT VIOLATED
APPLICABLE LAW AS INTERPRETED (AND CITED) BY THE COMPTROLLER GENERAL.
THE COUNCIL ACCEPTED THE AGENCY'S PETITION FOR REVIEW ON THAT GROUND;
THE COUNCIL ALSO GRANTED THE AGENCY'S REQUEST FOR A STAY OF THE
ARBITRATOR'S AWARD PENDING COUNCIL DETERMINATION OF THE AGENCY'S APPEAL
(FLRC REPORT OF CASE DECISIONS NO. 49, FEBRUARY 28, 1974).
THE AGENCY, IN SUPPORT OF ITS EXCEPTION, CITED, INTER ALIA, SECTION
S2-5B(1) OF FPM SUPPLEMENT 990-2 WHICH DEALS WITH THE EFFECTIVE DATE OF
PROMOTION UNDER 5 U.S.C. 5334(B); THE BACK PAY ACT OF 1966; AND THE
CIVIL RIGHTS ACT OF 1964. SINCE THE CIVIL SERVICE COMMISSION IS
AUTHORIZED TO PRESCRIBE REGULATIONS TO IMPLEMENT THE ABOVE-CITED
STATUTES, THAT AGENCY WAS REQUESTED, IN ACCORDANCE WITH COUNCIL
PRACTICE, TO FURNISH AN INTERPRETATION OF THESE STATUTES AND
IMPLEMENTING CSC REGULATIONS AS THEY PERTAIN TO THE ARBITRATOR'S AWARD
IN THIS CASE. THE CIVIL SERVICE COMMISSION REPLIED IN PERTINENT PART AS
FOLLOWS:
OUR EXAMINATION AND VIEW OF THE FILE OF THE WRITTEN OPINION AND
FINDINGS OF THE ARBITRATOR
UPON WHICH THE ORDER WAS BASED LEAVES UNANSWERED SUBSTANTIAL FACTUAL
DETERMINATIONS WHICH MUST
BE MADE PRIOR TO ANY FINDING THAT THE ARBITRATORS ORDER IS, OR IS
NOT, LEGALLY CAPABLE OF
IMPLEMENTATION. IT HAS BEEN CONSISTENTLY DEEMED THAT AFTER ALL
DISCRETIONARY ACTS THAT ARE
REQUIRED TO EFFECT A PERSONNEL ACTION HAVE BEEN TAKEN BY AN OFFICER
HAVING THE AUTHORITY TO
TAKE THE ACTION, AND NOTHING REMAINS TO BE DONE EXCEPT MINISTERIAL
ACTS, THE PERSONNEL ACTION
IS COMPLETED, REGARDLESS OF THE FACT THAT MINISTERIAL AND
NONDISCRETIONARY ACTS REMAIN TO BE
DONE. COURT DECISIONS UNIFORMLY HOLD THAT THE APPOINTING ACTION IS
COMPLETED WHEN THE LAST
ACT IN THE EXERCISE OF THE APPOINTING POWER IS PERFORMED (MARBURY V.
MADISON, (1803), 1 CRANCH
137; U.S. V. LE BARON, (1856), 19 HOW. 73; STATE EX REL COOGAN V.
BARBOUR (1885), 22
A. 686; WITHERSPOON V. STATE (1925), 103 SO. 134; BOARD OF
EDUCATION V. MCCHESNEY (1930), 32
SW2D 26). THE APPOINTING POWER IS EXHAUSTED WHEN THE LAST
DISCRETIONARY ACT IS
COMPLETED. THE APPOINTMENT IS THEN IRREVOCABLE, AND NOT SUBJECT TO
RECONSIDERATION. (U.S. V. SMITH, 1932), 286 U.S. 6; STATE EX REL
CALDERWOOD V. MILLER,
(1900), 57 NE 227; STATE EX REL JEWETT V. SATTI (1947), 54 A.2D
272).
IN OUR OPINION THEN THE FOLLOWING FACTS WOULD HAVE TO BE ESTABLISHED
BEFORE WE COULD
DETERMINE IF THE ORDER IS IN ACTUALITY A RETROACTIVE PROMOTION:
1. IN THE STANDARD PROCEDURE FOR PROMOTIONS IN THE DEPARTMENT OF
LABOR, HAD THE REQUISITE
DISCRETIONARY AUTHORITY FOR THE PROMOTION OF DEBORAH J. GWYNNE BEEN
EXERCISED SO THAT ALL
REMAINING ACTIONS IN THE PROMOTION PROCESS WERE CLASSIFIABLE AS
MINISTERIAL AND
ADMINISTRATIVE?
2. IF THE DISCRETIONARY AUTHORITY FOR PROMOTION HAD IN FACT BEEN
EXERCISED WAS THE
PROMOTION CONDITIONED UPON THE PRIOR RECLASSIFICATION OF THE
GRIEVANT'S POSITION?
3. IF THE PROMOTION WAS CONDITIONAL UPON RECLASSIFICATION WAS IT
NECESSARY FOR SOMEONE TO
EXERCISE DISCRETIONARY AUTHORITY TO EFFECT THE RECLASSIFICATION?
THESE QUESTIONS ARE ALL AIMED AT ESTABLISHING WHETHER OR NOT THE
REQUIRED DISCRETIONARY
AUTHORITY HAD BEEN EXERCISED.
ASSUMING THAT THESE QUESTIONS ARE ANSWERED IN A MANNER WHICH SHOWS
THAT ALL DISCRETIONARY
AUTHORITY HAD NOT BEEN EXERCISED TO EFFECT THE PROMOTION, THEN THE
CITED AUTHORITIES ARE CLEAR
IN STATING THAT THE PROMOTION ACTION MAY NOT BE BACK-DATED SINCE TO
DO SO WOULD CREATE A
PROHIBITED RETROACTIVE PROMOTION. IF, HOWEVER, THE ANSWERS TO THESE
QUESTIONS INDICATE THAT
THE REQUISITE DISCRETIONARY AUTHORITY HAD BEEN EXERTED, THEN THE
PROPOSED AWARD IS NOT
RECOMMENDING A RETROACTIVE PROMOTION, BUT MERELY ACKNOWLEDGING AN
ACCOMPLISHED FACT, AND THE
ORDER MAY BE IMPLEMENTED.
IN THE MEANTIME, THE COMPTROLLER GENERAL HAD RULED IN DECISION
B-180010 (OCTOBER 31, 1974) THAT THE AGENCY IN THAT CASE COULD PROCESS A
RETROACTIVE PROMOTION AND PAY THE APPROPRIATE BACKPAY AS DIRECTED BY AN
ARBITRATOR'S AWARD, STATING THAT HIS PREVIOUS DECISIONS TO THE CONTRARY
WOULD NO LONGER BE FOLLOWED. IN VIEW OF THAT DECISION, AS WELL AS THE
COMPTROLLER GENERAL'S DECISIONS B-179711 (JUNE 25, 1974) AND B-180311
(OCTOBER 4, 1974), THE COUNCIL REQUESTED THE CIVIL SERVICE COMMISSION TO
RECONSIDER THE INTERPRETATION FURNISHED IN, AMONG OTHER CASES, THE
INSTANT CASE. THE COMMISSION REPLIED IN PERTINENT PART AS FOLLOWS:
THE NEW LINE OF COMPTROLLER GENERAL DECISIONS WOULD NOT NECESSARILY
ALTER OUR CONCLUSIONS
IN THIS CASE. THE NEW DECISIONS DO NOT GO SO FAR AS TO ALLOW THE
COMPLETE SUBSTITUTION OF AN
ARBITRATOR'S JUDGMENT FOR THAT OF THE PROPER AGENCY OFFICIAL WHEN
THERE ARE REMAINING
DISCRETIONARY ACTIONS REQUIRED BY THE MERIT PROMOTION PROCEDURES.
THEREFORE, IN ORDER TO COME
TO ANY CONCLUSION AS TO THE AGENCY'S AUTHORITY TO IMPLEMENT THE AWARD
WE MUST HAVE THE ANSWERS
TO THE QUESTIONS WHICH WERE POSED IN OUR ORIGINAL REPLY TO THE
COUNCIL. WHEN WE HAVE THAT
INFORMATION WE WILL ALSO BE ABLE TO PROCEED WITH A REVIEW OF THIS
CASE IN LIGHT OF THE NEW
COMPTROLLER GENERAL DECISIONS.
IN THE COUNCIL'S OPINION, IT IS NECESSARY THAT THE PARTIES FURNISH
THE COUNCIL WITH ANSWERS TO QUESTIONS 1-3 POSED IN THE CIVIL SERVICE
COMMISSION'S ORIGINAL REPLY, AND QUOTED ABOVE. ACCORDINGLY, THE PARTIES
ARE DIRECTED: (1) TO FURNISH THE COUNCIL, ON OR BEFORE JUNE 9, 1975,
WITH SUCH ANSWERS BY A STIPULATION BETWEEN THE PARTIES; OR (2) TO
RESUBMIT THE CASE TO THE ARBITRATOR FOR HIS ANSWERS TO SUCH QUESTIONS,
AND, WITHIN 15 DAYS AFTER THE ARBITRATOR'S ACTION, FILE WITH THE COUNCIL
THE ARBITRATOR'S SUPPLEMENTAL AWARD LIMITED TO HIS ANSWERS TO THOSE
QUESTIONS; AND (3) TO SUBMIT WITH SUCH ANSWERS ANY STATEMENTS OF
POSITION WHICH THE RESPECTIVE PARTIES WISH TO BE CONSIDERED BY THE
COUNCIL.
PENDING RECEIPT OF ANSWERS TO THOSE QUESTIONS EITHER BY STIPULATION
OR BY SUPPLEMENTAL AWARD AND ANY STATEMENTS OF POSITION THEREON BY THE
PARTIES, THE COUNCIL WILL HOLD THE INSTANT APPEAL, AND THE COUNCIL'S
DECISION ON ITS MERITS, IN ABEYANCE.
BY THE COUNCIL. /2/
/1/ THE SECRETARY OF LABOR DID NOT PARTICIPATE IN THIS DECISION.
/2/ THE SECRETARY OF LABOR DID NOT PARTICIPATE IN THIS DECISION.
3 FLRC 276; FLRC NO. 75A-8; MAY 21, 1975.
MR. JAMES R. ROSA, STAFF COUNSEL
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
1325 MASSACHUSETTS AVENUE, NW.
WASHINGTON, D.C. 20005
(SYNOPSIS) FLRC NO. 75A-8
SOCIAL SECURITY ADMINISTRATION, MID-AMERICA PROGRAM CENTER, BRSI,
KANSAS CITY, MISSOURI, ASSISTANT SECRETARY CASE NO. 60-3836 (CA). THE
ASSISTANT SECRETARY DISMISSED THE UNFAIR LABOR PRACTICE COMPLAINT FILED
BY THE UNION (SOCIAL SECURITY LOCAL 1336, AFGE, AFL-CIO), WHICH ALLEGED
THAT THE AGENCY VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER. THE
UNION APPEALED TO THE COUNCIL, ASSERTING THAT THE ASSISTANT SECRETARY'S
DECISION IS ARBITRARY AND CAPRICIOUS AND PRESENTS MAJOR POLICY ISSUES.
COUNCIL ACTION (MAY 21, 1975). THE COUNCIL HELD THAT THE ASSISTANT
SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY AND CAPRICIOUS AND DOES
NOT PRESENT ANY MAJOR POLICY ISSUE. ACCORDINGLY, THE COUNCIL DENIED THE
UNION'S PETITION, SINCE IT FAILED TO MEET THE REQUIREMENTS FOR REVIEW AS
PROVIDED IN SECTION 2411.12 OF THE COUNCIL'S RULES (5 CFR 2411.12).
DEAR MR. ROSA:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION, AND THE AGENCY'S OPPOSITION THERETO, IN
THE ABOVE-ENTITLED CASE.
IN THIS CASE, THE UNION (SOCIAL SECURITY LOCAL 1336, AFGE, AFL-CIO)
FILED A COMPLAINT, ALLEGING THAT THE AGENCY INDEPENDENTLY VIOLATED
SECTION 19(A)(1) AND (6) OF THE ORDER BY ITS FAILURE TO POST A REMEDIAL
NOTICE IN A SEPARATE UNFAIR LABOR PRACTICE CASE (A/SLMR NO. 411),
INVOLVING THE SAME PARTIES. AT THE TIME OF THE UNION'S COMPLAINT AND
THE ASSISTANT SECRETARY'S DECISION HEREIN, THAT CASE WAS PENDING BEFORE
THE COUNCIL ON A TIMELY PETITION FOR REVIEW AND REQUEST FOR STAY WHICH
HAD BEEN FILED BY THE AGENCY (FLRC NO. 74A-53). /1/
THE ASSISTANT SECRETARY, IN SUBSTANCE, DISMISSED THE UNION'S
COMPLAINT IN THE PRESENT CASE, BECAUSE, AS STATED IN HIS DECISION AS
CLARIFIED, "THE MATTERS OR CIRCUMSTANCES RAISED IN THE SUBJECT COMPLAINT
(CONCERN) COMPLIANCE WITH A REMEDIAL ORDER OF THE ASSISTANT SECRETARY
AND DO NOT INVOLVE ISSUES WHICH MAY BE RAISED UNDER SECTION 19 OF THE
EXECUTIVE ORDER." IN YOUR PETITION FOR REVIEW, YOU CONTEND THAT THE
ASSISTANT SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS AND PRESENTS
MAJOR POLICY ISSUES.
IN THE COUNCIL'S OPINION, YOUR PETITION DOES NOT MEET THE CRITERIA
FOR REVIEW SET FORTH IN SECTION 2411.12 OF THE COUNCIL'S RULES OF
PROCEDURE. THAT IS, IN OUR VIEW, THE ASSISTANT SECRETARY'S DECISION
DOES NOT APPEAR ARBITRARY AND CAPRICIOUS, NOR DOES IT PRESENT A MAJOR
POLICY ISSUE.
AS TO YOUR CONTENTION THAT THE DECISION IS ARBITRARY AND CAPRICIOUS,
IT DOES NOT APPEAR THAT THE ASSISTANT SECRETARY ACTED WITHOUT REASONABLE
JUSTIFICATION IN RULING THAT YOUR COMPLAINT IN THIS CASE CONCERNED
COMPLIANCE WITH A REMEDIAL ORDER AND DID NOT INVOLVE ISSUES WHICH MAY
PROPERLY BE RAISED IN A SEPARATE COMPLAINT FILED UNDER SECTION 19 OF THE
ORDER.
AS TO YOUR CLAIM THAT THE ASSISTANT SECRETARY'S DECISION PRESENTS
MAJOR POLICY ISSUES, THE COUNCIL IS OF THE OPINION THAT NO MAJOR POLICY
ISSUE IS PRESENTED WARRANTING REVIEW IN THIS CASE. WE CALL YOUR
ATTENTION IN THIS REGARD TO THE PROPOSED CHANGES IN THE COUNCIL'S RULES
OF PROCEDURE, PUBLISHED ON MAY 16, 1975, (40 F.R. 21488), WHICH IN PART
RELATE TO REQUESTS FOR STAYS AND THE EFFECT OF SUCH A REQUEST ON THE
DECISION FROM WHICH AN APPEAL IS TAKEN (2411.47(D)). THE COUNCIL WILL
ENTERTAIN YOUR ORGANIZATION'S TIMELY SUBMISSION OF VIEWS AS TO THESE
PROPOSED CHANGES.
ACCORDINGLY, SINCE YOUR PETITION IN THIS CASE FAILS TO MEET THE
REQUIREMENTS FOR REVIEW AS PROVIDED IN SECTION 2411.12 OF THE COUNCIL'S
RULES, REVIEW OF YOUR APPEAL IS HEREBY DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
I. L. BECKER
SSA
/1/ THE COUNCIL HAS SINCE ISSUED ITS DECISION IN FLRC NO. 74A-53,
DENYING THE AGENCY'S PETITION FOR REVIEW AND REQUEST FOR STAY (REPORT
NO.64), AND THE COUNCIL IS ADMINISTRATIVELY ADVISED THAT THE AGENCY HAS
INITIATED COMPLIANCE WITH THE ASSISTANT SECRETARY'S ORDER IN THAT CASE.
3 FLRC 270; FLRC NO. 74A-73; MAY 21, 1975.
MR. AUGUST SEEGER
ASSISTANT DIRECTOR
OFFICE OF PERSONNEL
U.S. DEPARTMENT OF AGRICULTURE
WASHINGTON, D.C. 20250
(SYNOPSIS) FLRC NO. 74A-73
U.S. DEPARTMENT OF AGRICULTURE, AGRICULTURAL RESEARCH SERVICE, PLUM
ISLAND ANIMAL DISEASE CENTER, A/SLMR NO. 428. UPON A CLARIFICATION OF
UNIT PETITION FILED BY THE AGENCY, THE ASSISTANT SECRETARY ISSUED A
DECISION, AS SUBSEQUENTLY CLARIFIED, RELATING TO THE AGENCY'S REQUEST
FOR AMENDMENTS OF THE UNIT DEFINITION AND FOR EXCLUSION OF THREE
SECRETARIAL OR CLERICAL EMPLOYEES AS CONFIDENTIAL EMPLOYEES. THE AGENCY
APPEALED TO THE COUNCIL FROM SUCH DECISION INSOFAR AS IT CONCERNED THE
AMENDMENTS OF THE UNIT DEFINITION AND THE UNIT PLACEMENT OF ONE
EMPLOYEE, CONTENDING THAT THE DECISION IS ARBITRARY AND CAPRICIOUS AND
PRESENTS MAJOR POLICY ISSUES.
COUNCIL ACTION (MAY 21, 1975). THE COUNCIL HELD THAT THE ASSISTANT
SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY OR CAPRICIOUS AND DOES
NOT PRESENT A MAJOR POLICY ISSUE. ACCORDINGLY, THE COUNCIL DENIED THE
AGENCY'S PETITION FOR REVIEW, SINCE IT FAILED TO MEET THE REQUIREMENTS
FOR REVIEW AS PROVIDED UNDER SECTION 2411.12 OF THE COUNCIL'S RULES OF
PROCEDURE (5 CFR 2411.12).
DEAR MR. SEEGER:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION, AND THE ADDITIONAL COMMENTS AND
ARGUMENTS FILED BY YOU FOLLOWING RECEIPT OF THE ASSISTANT SECRETARY'S
CLARIFICATION OF HIS DECISION IN THE ABOVE-ENTITLED CASE.
THE U.S. DEPARTMENT OF AGRICULTURE, AGRICULTURAL RESEARCH SERVICE,
PLUM ISLAND ANIMAL DISEASE CENTER ("THE ACTIVITY") FILED A CLARIFICATION
OF UNIT PETITION SEEKING TO CLARIFY THE EXISTING UNIT BY EXCLUDING THREE
SECRETARIAL OR CLERICAL EMPLOYEES AS CONFIDENTIAL EMPLOYEES. MOREOVER,
THE ACTIVITY SOUGHT AN AMENDMENT OF UNIT DEFINITION TO REFLECT THE
NONSUBSTANTIVE CHANGE OF THE NAME OF THE ACTIVITY AND TO REFLECT THE
MANDATORY EXCLUSIONS REQUIRED BY EXECUTIVE ORDER 11491. THE ASSISTANT
SECRETARY FOUND THAT TWO OF THE EMPLOYEES ACT IN CONFIDENTIAL CAPACITIES
WITH RESPECT TO OFFICIALS WHO FORMULATE OR EFFECTUATE GENERAL LABOR
RELATIONS POLICIES AND THAT THEY HAVE REGULAR ACCESS TO CONFIDENTIAL
LABOR RELATION MATERIALS AND TO OFFICE AND PERSONNEL FILES NOT AVAILABLE
TO OTHER EMPLOYEES IN THE UNIT, AND ACCORDINGLY, EXCLUDED THEM FROM THE
BARGAINING UNIT. THE ASSISTANT SECRETARY FURTHER FOUND THAT THE THIRD
IS NOT AN EMPLOYEE WHO ASSISTS OR ACTS IN A CONFIDENTIAL CAPACITY TO
PERSONS WHO FORMULATE AND EFFECTUATE POLICIES IN THE FIELD OF LABOR
RELATIONS, HOLDING NEITHER THE INCUMBENT'S MERE ACCESS TO PERSONNEL OR
STATISTICAL INFORMATION NOR THE INCUMBENT'S HANDLING OF CORRESPONDENCE
WHICH ULTIMATELY MAY BE UTILIZED IN CONTRACT NEGOTIATIONS WARRANTS HER
EXCLUSION FROM THE UNIT. THE ASSISTANT SECRETARY DID NOT MAKE ANY
EXPRESS DISPOSITION OF THE ACTIVITY'S REQUEST FOR THE AMENDMENT OF THE
UNIT DEFINITION TO REFLECT THE NONSUBSTANTIVE CHANGE OF THE NAME OF THE
ACTIVITY (OTHER THAN THE NAME OF THE ACTIVITY AS SHOWN IN THE CASE
CAPTION IN THE ASSISTANT SECRETARY'S DECISION AND IN HIS ORDER) AND TO
REFLECT THE MANDATORY EXCLUSIONS REQUIRED BY THE ORDER.
FOLLOWING RECEIPT OF YOUR APPEAL, THE COUNCIL REQUESTED CLARIFICATION
OF THE ASSISTANT SECRETARY'S DECISION, AS TO WHAT DISPOSITION HE HAD
MADE OF THE ACTIVITY'S REQUEST FOR THE AMENDMENT OF THE UNIT DEFINITION
TO REFLECT THE NONSUBSTANTIVE CHANGE OF THE NAME OF THE ACTIVITY AND TO
REFLECT THE MANDATORY EXCLUSIONS REQUIRED BY THE ORDER. IN RESPONSE,
WITH REGARD TO THE ACTIVITY'S REQUEST FOR AMENDMENT OF THE UNIT
DEFINITION TO REFLECT THE NONSUBSTANTIVE CHANGE OF THE NAME OF THE
ACTIVITY, THE ASSISTANT SECRETARY STATED THAT:
" . . . IN (HEADQUARTERS, U.S. ARMY AVIATION SYSTEMS COMMAND, ST.
LOUIS, MISSOURI,) A/SLMR
NO. 160 (MAY 18, 1972)), IT WAS ESTABLISHED, IN EFFECT, THAT A
PETITION FOR AMENDMENT OF
RECOGNITION OR CERTIFICATION IS THE APPROPRIATE VEHICLE WHEN PARTIES
SEEK TO CONFORM THE
RECOGNITION INVOLVED TO EXISTING CIRCUMSTANCES RESULTING FROM SUCH
NOMINAL OR TECHNICAL
CHANGES AS A CHANGE IN THE NAME OF THE EXCLUSIVE REPRESENTATIVE OR A
CHANGE IN THE NAME OR
LOCATION OF THE AGENCY OR ACTIVITY. THEREFORE, CLEARLY, THE
(A)CTIVITY'S PETITION HEREIN
SEEKING CLARIFICATION OF AN EXISTING UNIT WAS AN INAPPROPRIATE
VEHICLE TO CHANGE FORMALLY ITS
DESIGNATION. HOWEVER, NOTWITHSTANDING THE INAPPROPRIATENESS OF THE
(A)CTIVITY'S PETITION IN
THIS REGARD, THE SUBJECT DECISION AND ORDER CLARIFYING UNIT, IN ITS
CAPTION, IN THE
DESCRIPTION OF THE PETITIONER AT PAGE 1, AND IN THE ORDER ON PAGE 3,
REFLECTED THE CHANGE IN
DESIGNATION SOUGHT BY THE (A)CTIVITY. UNDER THESE CIRCUMSTANCES, NO
FURTHER EXPRESS COMMENT
ON SUCH A "NONSUBSTANTIVE CHANGE" WAS CONSIDERED NECESSARY.
FURTHER, WITH REGARD TO THE ACTIVITY'S REQUEST FOR AMENDMENT OF THE
UNIT DEFINITION TO REFLECT THE MANDATORY EXCLUSIONS REQUIRED BY
EXECUTIVE ORDER 11491, HE STATED THAT:
. . . IT WAS NOTED THAT THE ONLY ISSUE IN DISPUTE BETWEEN THE PARTIES
IN THIS MATTER
CONCERNED THE ALLEGED CONFIDENTIAL STATUS OF THREE EMPLOYEE JOB
CLASSIFICATIONS. THIS ISSUE
WAS LITIGATED AT THE HEARING IN THIS MATTER AND WAS ADDRESSED AND
DECIDED BY VIRTUE OF THE
DECISION AND ORDER CLARIFYING UNIT IN THE SUBJECT CASE WHICH RESULTED
IN THE INCLUSION IN THE
EXISTING EXCLUSIVELY RECOGNIZED UNIT OF ONE EMPLOYEE JOB
CLASSIFICATION AND THE EXCLUSION FROM
THE EXISTING EXCLUSIVELY RECOGNIZED UNIT OF TWO EMPLOYEE JOB
CLASSIFICATIONS ON THE BASIS THAT
THE EMPLOYEES IN SUCH CLASSIFICATION WERE "CONFIDENTIAL" EMPLOYEES.
AS NO OTHER ELIGIBILITY
QUESTIONS WERE RAISED, IT WAS NOT CONSIDERED NECESSARY TO CLARIFY
ADDITIONALLY THE EXISTING
BARGAINING UNIT TO THE EXTENT THAT EXCLUDED THEREFROM ARE THE
MANDATORY EXCLUSIONS CONTAINED
IN SECTION 10(B) OF THE ORDER SINCE, BY OPERATION OF THE ORDER
ITSELF, THESE GENERAL
CATEGORIES OF EMPLOYEES-- I.E., MANAGEMENT OFFICIALS, SUPERVISORS AND
EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY-- ARE
EXCLUDED FROM BARGAINING
UNITS IN THE FEDERAL SECTOR. IN THIS REGARD, IT SHOULD BE NOTED
ADDITIONALLY THAT THE
EXISTING UNIT DESCRIPTION EXCLUDES EMPLOYEES HOLDING PROFESSIONAL AND
MANAGERIAL POSITIONS AND
SUPERVISORS WHO ARE RESPONSIBLE FOR DETERMINING AND MAKING
PERFORMANCE RATINGS FOR
SUBORDINATES. FURTHER, NEITHER THE EXISTING UNIT DESCRIPTION, NOR
THE PROPOSED DESCRIPTION,
INCLUDED OR EXCLUDED GUARDS AND THERE WAS NO INDICATION BY THE
(A)CTIVITY AS TO THIS OMISSION
IN BOTH ITS EXISTING AND PROPOSED UNIT DESCRIPTIONS. NOR WAS THERE
AN INDICATION AS TO
WHETHER THERE WERE OR ARE GUARDS EMPLOYED BY THE (A)CTIVITY.
UNDER ALL THESE CIRCUMSTANCES, IT WAS NOT CONSIDERED NECESSARY TO
SPECIFY IN THE DECISION
AND ORDER IN THIS CASE, OR IN ANY CASE OF THIS NATURE, THE MANDATORY
EXCLUSIONS REQUIRED BY
SECTION 10(B).
IN YOUR PETITION FOR REVIEW, YOU CONTEND THAT THE ASSISTANT
SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS, AND PRESENTS MAJOR
POLICY ISSUES, PRIMARILY BECAUSE, AS YOU ALLEGE, IT DOES NOT ADDRESS
ITSELF OR REFER IN ANY WAY TO THE ACTIVITY'S REQUEST FOR THE AMENDMENT
OF THE UNIT DEFINITION TO REFLECT THE NONSUBSTANTIVE CHANGE OF THE NAME
OF THE ACTIVITY AND TO REFLECT THE MANDATORY EXCLUSIONS REQUIRED BY THE
ORDER. IN RESPONSE TO THE ASSISTANT SECRETARY'S CLARIFICATION OF HIS
DECISION, YOU FURTHER CONTEND, IN RELIANCE UPON HEADQUARTERS, U.S. ARMY
AVIATION SYSTEMS COMMAND, ST. LOUIS, MISSOURI, /1/ THAT ALTHOUGH AN
AMENDMENT OF CERTIFICATION (AC) PETITION IS NORMALLY THE APPROPRIATE
VEHICLE FOR SEEKING NOMINAL CHANGES IN THE NAME OF THE ACTIVITY OR
AGENCY, SUCH A CONSTRICTIVE FINDING IN THE INSTANT CASE OR SIMILAR CASES
WILL NOT EFFECTUATE THE PURPOSE AND PROVISIONS OF THE ORDER; IN
RELIANCE UPON THE ADVICE OF THE NEW YORK REGIONAL OFFICE, LMSA, YOU
FILED A PETITION FOR CLARIFICATION OF UNIT (CU) TO ACCOMPLISH BOTH
CLARIFICATION OF UNIT AND AMENDMENT OF CERTIFICATION; ALTHOUGH THE NAME
OF THE ACTIVITY WAS CORRECTLY STATED IN THE SUBJECT DECISION AND ORDER,
IN ITS CAPTION, IN THE DESCRIPTION OF THE PETITIONER, AND IN THE ORDER,
THIS DOES NOT CONSTITUTE A FORMAL AMENDMENT OF CERTIFICATION IN
ACCORDANCE WITH THE ASSISTANT SECRETARY'S RULES AND REGULATIONS AND THE
ASSISTANT SECRETARY'S REPORT NO. 54 (JUNE 22, 1973); /2/ AND, FURTHER,
SINCE THE UNIT DESCRIPTION WAS INACCURATE AND THE ACTIVITY SOUGHT,
WITHOUT OBJECTION FROM THE UNION, TO AMEND IT TO REFLECT THE MANDATORY
EXCLUSIONS UNDER THE ORDER, SUCH AMENDMENT OF THE UNIT DESCRIPTION
SHOULD HAVE BEEN MADE BY THE ASSISTANT SECRETARY. YOU ALSO CONTEND THAT
THE DECISION FAILED TO APPLY CONSISTENTLY THE DETERMINATIVE CRITERIA FOR
CONFIDENTIAL EMPLOYEES TO THE THREE DISPUTED EMPLOYEE POSITIONS, SINCE
THE RECORD ESTABLISHES THAT THESE POSITIONS ARE SIMILAR WITH RESPECT TO
JOB CONTENT RELATING TO ACCESS TO, AND HANDLING AND PROCESSING OF,
CONFIDENTIAL LABOR RELATIONS MATERIAL. MOREOVER, YOU CONTEND THAT
ACCESS TO, AND THE HANDLING AND PROCESSING OF, CONFIDENTIAL FISCAL DATA
WHICH SUBSTANTIALLY AFFECTS THE LABOR-MANAGEMENT RELATIONSHIP IS AN
AFFIRMATIVE DETERMINATIVE OF AN EMPLOYEE'S STATUS AS A CONFIDENTIAL
EMPLOYEE WITHIN THE MEANING OF THE ORDER.
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW OF THE ASSISTANT
SECRETARY'S DECISION DOES NOT MEET THE REQUIREMENTS OF SECTION 2411.12
OF THE COUNCIL'S RULES; THAT IS, HIS FINDINGS AND DECISION DO NOT
APPEAR IN ANY MANNER ARBITRARY AND CAPRICIOUS NOR DO THEY PRESENT A
MAJOR POLICY ISSUE. WITH REGARD TO YOUR CONTENTION THAT THE ASSISTANT
SECRETARY DID NOT ADDRESS HIMSELF OR REFER IN ANY WAY TO THE ACTIVITY'S
REQUEST FOR THE AMENDMENT OF THE UNIT DEFINITION TO REFLECT THE
NONSUBSTANTIVE CHANGE OF THE NAME OF THE ACTIVITY, NOTING THAT THE
SUBJECT DECISION AND ORDER CLARIFYING UNIT, IN ITS CAPTION, IN THE
DESCRIPTION OF THE PETITIONER AT PAGE 1, AND IN THE ORDER ON PAGE 3,
REFLECTED THE CHANGE IN DESIGNATION SOUGHT BY THE ACTIVITY, IT DOES NOT
APPEAR THAT THE ASSISTANT SECRETARY ACTED WITHOUT REASONABLE
JUSTIFICATION OR THAT THE DECISION PRESENTS ANY MAJOR POLICY ISSUES.
WITH REGARD TO YOUR CONTENTION THAT THE ASSISTANT SECRETARY'S
DECISION DID NOT ADDRESS ITSELF OR REFER IN ANY WAY TO THE ACTIVITY'S
REQUEST FOR THE AMENDMENT OF THE UNIT DEFINITION TO REFLECT THE
MANDATORY EXCLUSIONS REQUIRED BY THE ORDER, HE STATES IN HIS
CLARIFICATION THAT "THE ONLY ISSUE IN DISPUTE BETWEEN THE PARTIES IN
THIS MATTER CONCERNED THE ALLEGED CONFIDENTIAL STATUS OF THREE EMPLOYEE
JOB CLASSIFICATIONS . . . AS NO OTHER ELIGIBILITY QUESTIONS WERE
RAISED, IT WAS NOT CONSIDERED NECESSARY TO CLARIFY ADDITIONALLY THE
EXISTING BARGAINING UNIT TO THE EXTENT THAT EXCLUDED THEREFROM ARE THE
MANDATORY EXCLUSIONS CONTAINED IN SECTION 10(B) OF THE ORDER SINCE, BY
OPERATION OF THE ORDER ITSELF, THESE GENERAL CATEGORIES OF EMPLOYEES--
I.E., MANAGEMENT OFFICIALS, SUPERVISORS AND EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY-- ARE EXCLUDED
FROM BARGAINING UNITS IN THE FEDERAL SECTOR." IT DOES NOT APPEAR FROM
YOUR PETITION THAT SUCH A DETERMINATION BY THE ASSISTANT SECRETARY IS
WITHOUT REASONABLE JUSTIFICATION OR PRESENTS ANY MAJOR POLICY ISSUE
WARRANTING REVIEW.
WITH RESPECT TO YOUR CONTENTION THAT THE ASSISTANT SECRETARY'S
DECISION IS ARBITRARY AND CAPRICIOUS AND PRESENTS MAJOR POLICY ISSUES
BECAUSE HE DID NOT CONSISTENTLY APPLY THE DETERMINATIVE CRITERIA FOR
CONFIDENTIAL EMPLOYEES TO DISPUTED POSITIONS, IT DOES NOT APPEAR THAT
THE ASSISTANT SECRETARY ACTED WITHOUT REASONABLE JUSTIFICATION.
INSTEAD, THE ASSISTANT SECRETARY RELIED UPON HIS PREVIOUSLY ESTABLISHED
TEST FOR DETERMINING CONFIDENTIALITY OF EMPLOYEES AS REFLECTED IN HIS
CASE PRECEDENTS-- I.E., THOSE WHO ASSIST AND ACT IN CONFIDENTIAL
CAPACITIES TO PERSONS WHO FORMULATE AND EFFECTUATE MANAGEMENT POLICIES
IN THE FIELD OF LABOR RELATIONS.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY OR
CAPRICIOUS AND DOES NOT PRESENT A MAJOR POLICY ISSUE, YOUR APPEAL FAILS
TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED UNDER SECTION 2411.12 OF
THE COUNCIL'S RULES OF PROCEDURE. ACCORDINGLY, REVIEW OF YOUR APPEAL IS
HEREBY DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
P. ROSE
AFGE
/1/ SUPRA.
/2/ ASSISTANT SECRETARY'S REPORT NO. 54 (JUNE 22, 1973) PROVIDES, IN
PERTINENT PART:
WHILE UNITS FOR WHICH EXCLUSIVE RECOGNITION WAS GRANTED UNDER
EXECUTIVE ORDER 10988
CONTINUE TO EXIST UNDER EXECUTIVE ORDER 11491, THE ONLY MEANS BY
WHICH SUCH RECOGNITION NOW
CAN BE CLARIFIED OR AMENDED IN A MANNER WHICH WOULD BE BINDING ON THE
ASSISTANT SECRETARY OR
ANY OTHER PARTIES IN ANOTHER PROCEEDING, IS BY THE FILING OF AN
APPROPRIATE PETITION PURSUANT
TO PART 202 OF THE ASSISTANT SECRETARY'S REGULATIONS.
THE AGENCY HEREIN CONTENDS THAT AS THE UNIT OF REPRESENTATION HAS NOT
BEEN PREVIOUSLY CERTIFIED BY THE ASSISTANT SECRETARY, BUT WAS GRANTED BY
THE AGENCY UNDER EXECUTIVE ORDER 10988, IT IS ESSENTIAL THAT THE
ASSISTANT SECRETARY ISSUE A FORMAL CERTIFICATION OF REPRESENTATION AND
THAT SUCH CERTIFICATION ACCURATELY REFLECT THE CORRECT NAME OF THE
ACTIVITY AND THE MANDATORY EXCLUSIONS REQUIRED BY THE ORDER.
3 FLRC 267; FLRC NO. 73A-4; MAY 21, 1975.
MR. CARL E. GRANT
DIRECTOR OF PERSONNEL
U.S. GOVERNMENT
SMALL BUSINESS ADMINISTRATION
WASHINGTON, D.C. 20416
MR. CLYDE M. WEBBER, NATIONAL PRESIDENT
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES
1325 MASSACHUSETTS AVENUE, NW.
WASHINGTON, D.C. 20005
(SYNOPSIS) FLRC NO. 73A-4
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL NO. 2532, AND
SMALL BUSINESS ADMINISTRATION (DORSEY, ARBITRATOR). UPON THE UNION'S
MOTION FOR A SHOW-CAUSE HEARING, THE COUNCIL PREVIOUSLY DIRECTED THE
PARTIES IN THIS CASE: (1) TO RESUBMIT THE AWARD TO THE ARBITRATOR FOR
ITS CLARIFICATION AND INTERPRETATION WITH RESPECT TO ONE GRIEVANT
(ROBERT H. MORGAN); AND (2) TO FILE WITH THE COUNCIL, WITHIN 15 DAYS
AFTER THE ARBITRATOR'S ACTION, THE AWARD AS CLARIFIED AND INTERPRETED
AND ANY EXCEPTIONS THERETO WHICH THE RESPECTIVE PARTIES WISHED TO BE
CONSIDERED BY THE COUNCIL (REPORT NO. 49). THEREAFTER, THE PARTIES
FILED WITH THE COUNCIL THE ARBITRATOR'S INTERPRETATION OF HIS AWARD WITH
RESPECT TO THE NAMED GRIEVANT, AND NEITHER PARTY TOOK EXCEPTION TO THE
AWARD AS INTERPRETED BY THE ARBITRATOR.
COUNCIL ACTION (MAY 21, 1975). THE COUNCIL RULED THAT, SINCE THE
DISPUTE WHICH GAVE RISE TO THE UNION'S MOTION FOR A SHOW-CAUSE HEARING
HAS BEEN RESOLVED, THE UNION'S MOTION HAS BEEN RENDERED MOOT.
ACCORDINGLY, THE COUNCIL, APART FROM OTHER CONSIDERATIONS, DENIED THE
UNION'S MOTION.
GENTLEMEN:
REFERENCE IS MADE TO THE UNION'S MOTION THAT THE COUNCIL ORDER A
SHOW-CAUSE HEARING AS TO WHY THE COUNCIL SHOULD NOT DIRECT
IMPLEMENTATION OF THE ARBITRATION AWARD IN THE ABOVE-ENTITLED CASE WITH
RESPECT TO ROBERT H. MORGAN. THE ARBITRATOR DETERMINED THAT THE AGENCY
HAD, IN VIOLATION OF THE COLLECTIVE BARGAINING AGREEMENT, IMPLEMENTED A
REORGANIZATION BY REASSIGNING THE GRIEVANTS (INCLUDING MORGAN) TO A NEW
FUNCTION WITHOUT PRIOR NOTICE TO OR CONSULTATION WITH THE UNION. AS A
REMEDY FOR THE AGENCY'S VIOLATIONS OF THE AGREEMENT, THE ARBITRATOR
DIRECTED THE AGENCY WITHIN 30 DAYS TO INFORM ALL EMPLOYEES WHO WERE
REASSIGNED TO THE DISASTER CADRE STAFF THAT EACH OF THEM MIGHT ELECT
EITHER TO REMAIN ON, OR TO WITHDRAW FROM, SUCH ASSIGNMENT. FURTHER, HIS
AWARD PROVIDED THAT IF AN EMPLOYEE ELECTS TO WITHDRAW FROM SUCH
ASSIGNMENT, THE EMPLOYEE MAY EXERCISE AND THE "AGENCY SHALL HONOR THE
EMPLOYEE'S VESTED RIGHTS OF ASSIGNMENT TO A POSITION AS SUCH RIGHTS
EXISTED RELATIVE TO A REDUCTION-IN-FORCE ON APRIL 10, 1972." IN ITS
OPPOSITION TO THE UNION'S MOTION, THE AGENCY CONTENDED, IN EFFECT, THAT
MORGAN, RETIRED PRIOR TO THE ARBITRATION HEARING AND WAS NOT COVERED BY
THE ARBITRATION AWARD.
THE COUNCIL, WITHOUT PASSING UPON THE APPROPRIATE METHOD FOR THE
ENFORCEMENT OF ARBITRATION AWARDS UNDER THE ORDER, /1/ CONCLUDED THAT A
DISPUTE EXISTED BETWEEN THE PARTIES AS TO THE MEANING OF THE
ARBITRATOR'S AWARD WITH RESPECT TO MORGAN. ACCORDINGLY, THE COUNCIL
DIRECTED THAT THE PARTIES: (1) RESUBMIT THE AWARD TO THE ARBITRATOR FOR
ITS CLARIFICATION AND INTERPRETATION WITH RESPECT TO MORGAN; AND (2)
FILE WITH THE COUNCIL, WITHIN 15 DAYS AFTER THE ARBITRATOR'S ACTION, THE
AWARD AS CLARIFIED AND INTERPRETED AND ANY EXCEPTIONS THERETO WHICH THE
RESPECTIVE PARTIES WISHED TO BE CONSIDERED BY THE COUNCIL (FLRC REPORT
OF CASE DECISIONS NO. 49, FEBRUARY 28, 1974).
THE PARTIES HAVE FILED WITH THE COUNCIL THE ARBITRATOR'S
INTERPRETATION OF HIS AWARD WITH RESPECT TO MORGAN. THE ARBITRATOR
FOUND THE WORDING OF THE AWARD CONFINES ITS APPLICABILITY TO INVOLVED
AGENCY EMPLOYEES ON THE EFFECTIVE DATE OF THE AWARD; THAT MORGAN HAD
VOLUNTARILY TERMINATED HIS EMPLOYER-EMPLOYEE RELATIONSHIP WITH THE
AGENCY AND, THEREFORE, WAS NOT AN AGENCY EMPLOYEE ON THAT DATE; AND
THAT MORGAN DID NOT COME WITHIN THE AMBIT OF THE AWARD. NEITHER PARTY
TOOK EXCEPTION TO THE AWARD AS INTERPRETED BY THE ARBITRATOR.
SINCE THE DISPUTE WHICH GAVE RISE TO THE UNION'S MOTION HAS BEEN
RESOLVED, IT IS CLEAR THAT THE UNION'S MOTION HAS BEEN RENDERED MOOT.
ACCORDINGLY, THE COUNCIL, APART FROM OTHER CONSIDERATIONS, DENIES THE
UNION'S MOTION.
BY THE COUNCIL.
/1/ SEE THE COUNCIL'S SUBSEQUENTLY ISSUED DECISION IN DEPARTMENT OF
THE ARMY, ABERDEEN PROVING GROUND AND INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS, LOCAL LODGE 2424, A/SLMR NO. 412, FLRC
NO. 74A-46 (APRIL 23, 1975), REPORT NO. 67.
3 FLRC 264; FLRC NO. 75A-1; MAY 20, 1975.
MR. THOMAS ANGELO, ASSISTANT COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
SUITE 1101, 1730 K STREET, NW.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC 3NO. 75A-1
INTERNAL REVENUE SERVICE, SOUTHEAST SERVICE CENTER, CHAMBLEE,
GEORGIA, A/SLMR NO. 448. UPON A COMPLAINT FILED BY THE UNION (NATIONAL
TREASURY EMPLOYEES UNION AND CHAPTER 070, NATIONAL TREASURY EMPLOYEES
UNION), THE ASSISTANT SECRETARY DECIDED, IN PERTINENT PART, THAT CONDUCT
COMPLAINED OF, ARISING OUT OF EVENTS SURROUNDING THE ACTIVITY'S MEETING
WITH A GROUP OF ITS EMPLOYEES, DID NOT CONSTITUTE AN UNFAIR LABOR
PRACTICE. THE UNION APPEALED TO THE COUNCIL, CONTENDING IN ESSENCE THAT
THE ASSISTANT SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS AND
PRESENTS A MAJOR POLICY ISSUE.
COUNCIL ACTION (MAY 20, 1975). THE COUNCIL HELD THAT THE ASSISTANT
SECRETARY'S DECISION NEITHER APPEARS ARBITRARY AND CAPRICIOUS NOR
PRESENTS A MAJOR POLICY ISSUE. ACCORDINGLY, THE COUNCIL DENIED THE
UNION'S PETITION FOR REVIEW, SINCE IT FAILED TO MEET THE REQUIREMENTS
FOR REVIEW AS PROVIDED BY SECTION 2411.12 OF THE COUNCIL'S RULES OF
PROCEDURE (5 CFR 2411.12).
DEAR MR. ANGELO:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE, AND THE
DEPARTMENT OF THE TREASURY'S OPPOSITION THERETO.
WITH RESPECT TO THE ISSUES RAISED IN YOUR PETITION, THE ASSISTANT
SECRETARY, ADOPTING THE FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE
ADMINISTRATIVE LAW JUDGE WITHOUT COMMENT, FOUND THAT THE CONDUCT
COMPLAINED OF, ARISING OUT OF THE EVENTS SURROUNDING THE ACTIVITY'S
MEETING WITH A GROUP OF ITS EMPLOYEES, DID NOT CONSTITUTE AN UNFAIR
LABOR PRACTICE. THE ASSISTANT SECRETARY FOUND THAT AT SUCH MEETINGS,
SCHEDULED MONTHLY, ACTIVITY REPRESENTATIVES MET WITH A RANDOM CROSS
SECTION OF EMPLOYEES, AND THAT BOTH PARTIES RECOGNIZED THE RIGHT OF THE
UNION TO HAVE A REPRESENTATIVE PRESENT AND PARTICIPATING.
THE UNION PRESIDENT, WHO HAD BEEN THE UNION REPRESENTATIVE AT SUCH
MEETINGS FOR THE PREVIOUS SEVERAL MONTHS, RECEIVED NOTICE OF THE MEETING
SCHEDULED FOR THE FOLLOWING MONTH, AND ALSO WAS SELECTED TO ATTEND A
TRAINING CLASS TO BE HELD ON THE SAME DAY. WHEN THE CONFLICT WAS
DISCOVERED ON THE AFTERNOON PRIOR TO THE SCHEDULED DATE OF THE MEETING,
THE UNION PRESIDENT REQUESTED THAT HER SPECIAL ASSISTANT ATTEND THE
MEETING AS HER REPLACEMENT. THE SPECIAL ASSISTANT'S SHIFT MANAGER
DETERMINED THAT THE SPECIAL ASSISTANT COULD NOT BE SPARED TO ATTEND THE
MEETING, AN OPINION WITH WHICH THE UNION PRESIDENT AND HER SPECIAL
ASSISTANT DISAGREED. THE MEETING ON THE FOLLOWING DAY WAS DELAYED
ALMOST AN HOUR WHILE THE PROBLEM WAS PRESENTED TO THE DIRECTOR OF THE
INSTALLATION, WHO NOTICED THAT ONE OF THE EMPLOYEES RANDOMLY SELECTED TO
ATTEND THE MEETING WAS AN ELECTED OFFICIAL OF THE UNION, AND SUGGESTED
THAT THIS EMPLOYEE MIGHT BE A SUITABLE SUBSTITUTE. THE ASSISTANT
SECRETARY ADOPTED THE ADMINISTRATIVE LAW JUDGE'S FINDING THAT, ALTHOUGH
THERE WAS NO AGREEMENT ON THE PART OF THE UNION PRESIDENT TO THIS
SUBSTITUTION, "THERE WAS SOME ACQUIESCENCE, ALBEIT BORN OF RESIGNATION
AND FRUSTRATION." THE MEETING THEN PROCEEDED, WITH THE SUBSTITUTE
ACTIVELY PARTICIPATING AS THE UNION REPRESENTATIVE.
THE ASSISTANT SECRETARY ADOPTED THE ADMINISTRATIVE LAW JUDGE'S
CONCLUSION THAT "THE RIGHT OF THE LABOR ORGANIZATION TO 'BE GIVEN THE
OPPORTUNITY TO BE REPRESENTED AT FORMAL DISCUSSIONS BETWEEN MANAGEMENT
AND EMPLOYEES' (IS NOT) . . . SO ABSOLUTE AS TO COMPEL MANAGEMENT TO
ADJUST TO LAST MINUTE SUBSTITUTIONS REGARDLESS OF PROBLEMS RELATING TO
THE MISSION OF THE AGENCY," AND THAT "THE RULE OF REASON MUST PREVAIL"
IN THESE CIRCUMSTANCES. THIS FINDING WAS BASED ESSENTIALLY ON THE LAST
MINUTE NATURE OF THE UNION PRESIDENT'S REQUEST, THE SINCERE EFFORT ON
THE PART OF THE ACTIVITY TO ACCOMMODATE TO THE SITUATION, AND THE LACK
OF ANTI-UNION ANIMUS ON THE PART OF THE ACTIVITY WHICH HAS ALWAYS
RECOGNIZED THE UNION'S RIGHT TO BE REPRESENTED AT SUCH MEETINGS.
IN YOUR PETITION FOR REVIEW, YOU CONTEND, IN ESSENCE, THAT THE
DECISION OF THE ASSISTANT SECRETARY IS ARBITRARY AND CAPRICIOUS BECAUSE
IT REPRESENTS A DEPARTURE FROM PRECEDENT WITHOUT EXPLANATION. YOU ALSO
CONTEND THAT THE DECISION PRESENTS A MAJOR POLICY ISSUE AS TO WHEN, IF
EVER, AGENCY MANAGEMENT MAY EXERCISE A "RETAINED" RIGHT UNDER SECTION
12(B) IN SUCH A MANNER AS TO VITIATE RIGHTS WHICH THE ORDER GRANTS TO
LABOR ORGANIZATIONS.
IN THE COUNCIL'S VIEW, YOUR PETITION FOR REVIEW DOES NOT MEET THE
REQUIREMENTS OF SECTION 2411.12 OF THE COUNCIL'S RULES; THAT IS, THE
DECISION OF THE ASSISTANT SECRETARY DOES NOT APPEAR ARBITRARY AND
CAPRICIOUS NOR DOES IT PRESENT A MAJOR POLICY ISSUE. WITH RESPECT TO
YOUR CONTENTION THAT HIS DECISION WAS ARBITRARY AND CAPRICIOUS, IT DOES
NOT APPEAR THAT THE FINDINGS AND DECISION OF THE ASSISTANT SECRETARY
WERE WITHOUT REASONABLE JUSTIFICATION IN THE PARTICULAR CIRCUMSTANCES OF
THIS CASE. MOREOVER, WITH RESPECT TO THE ALLEGED MAJOR POLICY ISSUE,
THE COUNCIL IS OF THE OPINION THAT IN THE UNIQUE CIRCUMSTANCES
PRESENTED, NOTING PARTICULARLY THAT THE AGENCY ATTEMPTED TO ACCOMMODATE
THE UNION'S LAST MINUTE REQUEST FOR A SUBSTITUTE AND THE FACT THAT A
UNION OFFICIAL WAS PRESENT AND DID PARTICIPATE IN THE MEETING, THE
ASSISTANT SECRETARY'S DECISION DOES NOT RAISE A MAJOR POLICY ISSUE
WARRANTING COUNCIL REVIEW.
ACCORDINGLY, SINCE YOUR PETITION FAILS TO MEET THE REQUIREMENTS FOR
REVIEW PROVIDED BY SECTION 2411.12 OF THE COUNCIL'S RULES OF PROCEDURE,
REVIEW OF THE PETITION IS HEREBY DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
W. LONG
IRS
3 FLRC 262; FLRC NO. 75A-34; MAY 16, 1975.
MR. J. M. HOPPERSTAD, PRESIDENT
LOCAL 1857, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
5802 WATT AVENUE
NORTH HIGHLANDS, CALIFORNIA 95660
(SYNOPSIS) FLRC NO. 75A-34
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1857, AFL-CIO AND
HEADQUARTERS, SACRAMENTO AIR LOGISTICS CENTER, MCCLELLAN AIR FORCE BASE,
CALIFORNIA (SHEPARD, ARBITRATOR). UPON APPEAL FROM THE ARBITRATION
AWARD FILED BY THE UNION, THE COUNCIL ADVISED THE UNION THAT ITS APPEAL
FAILED TO COMPLY WITH CITED REQUIREMENTS OF THE COUNCIL'S RULES AND
PROVIDED THE UNION WITH TIME TO EFFECT SUCH COMPLIANCE. HOWEVER, THE
UNION MADE NO SUBMISSION IN COMPLIANCE WITH THESE REQUIREMENTS WITHIN
THE TIME LIMIT PROVIDED THEREFOR.
COUNCIL ACTION (MAY 16, 1975). THE COUNCIL DISMISSED THE UNION'S
APPEAL FOR FAILURE TO COMPLY WITH THE COUNCIL'S RULES OF PROCEDURE.
DEAR MR. HOPPERSTAD:
BY COUNCIL LETTER OF MARCH 31, 1975, YOU WERE ADVISED THAT YOUR
PETITION FOR REVIEW OF THE ARBITRATION AWARD IN THE ABOVE-MENTIONED CASE
FAILED TO INCLUDE THE APPROVAL OF THE NATIONAL PRESIDENT OF THE LABOR
ORGANIZATION, AS REQUIRED BY SECTION 2411.42 OF THE COUNCIL'S RULES.
YOU WERE ALSO ADVISED IN THE COUNCIL'S LETTER:
FURTHER PROCESSING OF YOUR APPEAL IS CONTINGENT UPON YOUR IMMEDIATE
COMPLIANCE WITH THE
ABOVE-DESIGNATED PROVISION(S) OF THE COUNCIL'S RULES. ACCORDINGLY,
YOU ARE HEREBY GRANTED
UNTIL THE CLOSE OF BUSINESS ON APRIL 14, 1975, TO TAKE ACTION AND
FILE ADDITIONAL MATERIALS IN
COMPLIANCE WITH THE ABOVE PROVISION(S), ALONG WITH A STATEMENT OF
SERVICE OF YOUR ADDITIONAL
SUBMISSION AS PROVIDED IN SECTION 2411.46(B) OF THE RULES. FAILURE
TO DO SO WILL RESULT IN
THE DISMISSAL OF YOUR APPEAL.
YOU HAVE MADE NO SUBMISSION IN COMPLIANCE WITH THE ABOVE
REQUIREMENTS, WITHIN THE TIME LIMIT PROVIDED THEREFOR. ACCORDINGLY,
YOUR APPEAL IS HEREBY DISMISSED FOR FAILURE TO COMPLY WITH THE COUNCIL'S
RULES OF PROCEDURE.
BY THE COUNCIL.
CC: LT. COL. J. J. FRANCO, JR.
G. M. LOUTSCH
AIR FORCE
3 FLRC 259; FLRC NO. 75A-5; MAY 9, 1975.
MR. JOHN P. HELM
STAFF ATTORNEY, NATIONAL FEDERATION
OF FEDERAL EMPLOYEES
1737 H STREET, NW.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 75A-5
VETERANS ADMINISTRATION HOSPITAL, MONTROSE, NEW YORK, A/SLMR NO.
470. THE ASSISTANT SECRETARY DISMISSED THE PETITION FOR AMENDMENT OF
RECOGNITION, FILED BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
2440, AFL-CIO (AFGE), IN THIS CASE. IN VIEW OF THIS ACTION, THE
ASSISTANT SECRETARY FOUND IT UNNECESSARY TO RULE UPON EITHER THE
PROPRIETY OF THE ASSISTANT REGIONAL DIRECTOR'S DENIAL OF AN INTERVENTION
REQUEST FILED BY NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 119,
IND. (NFFE), OR UPON NFFE'S OBJECTIONS MADE AT THE HEARING CONCERNING
ITS STATUS AS A "PARTY-IN-INTEREST." NFFE APPEALED TO THE COUNCIL,
CONTENDING THAT THE ASSISTANT SECRETARY'S DECISION PRESENTS MAJOR POLICY
ISSUES. NFFE ALSO REQUESTED A STAY OF THE ASSISTANT SECRETARY'S
DECISION.
COUNCIL ACTION (MAY 9, 1975). THE COUNCIL HELD THAT THE MAJOR POLICY
ISSUES ALLEGED BY NFFE WERE IN EFFECT RENDERED MOOT BY THE ASSISTANT
SECRETARY'S DISMISSAL OF AFG'S PETITION. FURTHER, THE COUNCIL RULED
THAT NFFE DID NOT ALLEGE, NOR DOES IT APPEAR, THAT THE ASSISTANT
SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS. ACCORDINGLY, WITHOUT
PASSING UPON THE MERITS OF THE STANDARDS PROMULGATED BY THE ASSISTANT
SECRETARY IN THIS CASE CONCERNING PROCEDURES FOR EFFECTUATING A CHANGE
IN AFFILIATION AND AN AMENDMENT OF CERTIFICATION OR RECOGNITION, THE
COUNCIL DENIED NFFE'S PETITION FOR REVIEW, SINCE IT DOES NOT MEET THE
REQUIREMENTS FOR REVIEW UNDER SECTION 2411.12 OF THE COUNCIL'S RULES (5
CFR 2411.12). THE COUNCIL LIKEWISE DENIED NFFE'S REQUEST FOR A STAY,
UNDER SECTION 2411.47 OF THE COUNCIL'S RULES (5 CFR 2411.47).
DEAR MR. HELM:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
IN THIS CASE, THE ASSISTANT SECRETARY DISMISSED AN AC PETITION FILED
BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2440, AFL-CIO
(AFGE), FINDING THAT THE EVIDENCE FAILED TO ESTABLISH THAT A CHANGE IN
AFFILIATION FROM UNITED BROTHERHOOD OF CARPENTERS AND JOINERS, LOCAL
2440, AFL-CIO, TO AFGE TOOK PLACE IN A MANNER WHICH ASSURED THAT
STANDARDS PROMULGATED BY THE ASSISTANT SECRETARY IN THE CASE WERE MET.
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 119, IND. (NFFE) HAD
SOUGHT TO INTERVENE IN THE PROCEEDING FOR THE PURPOSE OF ARGUING FOR THE
DISMISSAL OF AFGE'S PETITION. THE ASSISTANT REGIONAL DIRECTOR, IN
EFFECT, DENIED NFFE'S REQUEST, DESIGNATING NFFE AS A
"PARTY-IN-INTEREST," THUS PERMITTING NFFE ONLY TO STATE ITS POSITION
WITH REGARD TO THE ISSUES RAISED BY THE AC PETITION, THE ASSISTANT
SECRETARY FOUND IT UNNECESSARY TO RULE UPON THE PROPRIETY OF THE
ASSISTANT REGIONAL DIRECTOR'S DENIAL OF NFFE'S INTERVENTION REQUEST, OR
UPON NFFE'S OBJECTIONS MADE AT THE HEARING THAT THE LIMITATIONS IMPOSED
BY ITS DESIGNATION AS A "PARTY-IN-INTEREST" PREJUDICED ITS POSITION.
IN YOUR PETITION FOR REVIEW, YOU CONTEND THAT THE DECISION OF THE
ASSISTANT SECRETARY PRESENTS TWO MAJOR POLICY ISSUES: THE FIRST,
CONCERNING THE FAILURE OF THE ASSISTANT SECRETARY TO CORRECT THE
DESIGNATION OF NFFE AS A PARTY-IN-INTEREST; AND THE SECOND, REGARDING
THE ASSISTANT SECRETARY'S AUTHORITY TO REINVEST A LOCAL UNION (UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS, LOCAL 2440, HEREIN) WITH
RECOGNITION FOR THE PURPOSE OF SEEKING AN AMENDMENT OF CERTIFICATION
AFTER THAT UNION HAS ABANDONED ITS RECOGNITION.
IN THE COUNCIL'S VIEW, YOUR PETITION FOR REVIEW OF THE ASSISTANT
SECRETARY'S DECISION DOES NOT MEET THE REQUIREMENTS OF SECTION 2411.12
OF THE COUNCIL'S RULES; THAT IS, YOU HAVE NOT ALLEGED AND IT DOES NOT
APPEAR THAT THE DECISION OF THE ASSISTANT SECRETARY IS ARBITRARY AND
CAPRICIOUS, NOR DOES IT APPEAR THAT A MAJOR POLICY ISSUE IS PRESENTED.
UNDER THE CIRCUMSTANCES PRESENTED HEREIN, WHERE THE AC PETITION AT ISSUE
HAS BEEN DISMISSED, SUCH DISMISSAL HAS NOT BEEN CHALLENGED BY ANY
INTERESTED PARTY, AND NFFE'S POSITION HAS NOT BEEN PREJUDICED IN ANY
MANNER, FURTHER COUNCIL CONSIDERATION IS UNWARRANTED. THE MAJOR POLICY
ISSUES WHICH YOU ALLEGE ARE PRESENTED BY THE ASSISTANT SECRETARY'S
DECISION WERE, IN EFFECT, RENDERED MOOT BY HIS DISMISSAL OF THE
PETITION.
ACCORDINGLY, WITHOUT PASSING UPON THE MERITS OF THE STANDARDS
PROMULGATED BY THE ASSISTANT SECRETARY IN THIS CASE CONCERNING
PROCEDURES FOR EFFECTUATING A CHANGE IN AFFILIATION AND AN AMENDMENT OF
CERTIFICATION OR RECOGNITION, YOUR PETITION FOR REVIEW IS DENIED, SINCE
IT DOES NOT MEET THE REQUIREMENTS OF SECTION 2411.12 OF THE COUNCIL'S
RULES. LIKEWISE, THE COUNCIL HAS DIRECTED THAT YOUR REQUEST FOR A STAY
BE DENIED UNDER SECTION 2411.47 OF THE COUNCIL'S RULES OF PROCEDURE.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
W. MASSARO
VA
J. D. GLEASON
AFGE
3 FLRC 256; FLRC NO. 74A-90; MAY 9, 1975.
MS. JANET COOPER
STAFF ATTORNEY
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES
1737 H STREET, NW.
WASHINGTON, D.C. 20006
(SYNOPSIS) FLRC NO. 74A-90
DEPARTMENT OF THE ARMY, INDIANA ARMY AMMUNITION PLANT, CHARLESTOWN,
INDIANA, ASSISTANT SECRETARY CASE NO. 50-11018 (CA). THE ASSISTANT
SECRETARY, IN AGREEMENT WITH THE ASSISTANT REGIONAL DIRECTOR, FOUND
INSUFFICIENT EVIDENCE TO ESTABLISH A REASONABLE BASIS FOR THE 19(A)(1)
AND (2) COMPLAINT FILED BY THE UNION (NATIONAL FEDERATION OF FEDERAL
EMPLOYEES). THE UNION APPEALED TO THE COUNCIL, CONTENDING THAT MAJOR
POLICY ISSUES ARE INVOLVED IN THIS CASE.
COUNCIL ACTION (MAY 9, 1975). THE COUNCIL HELD THAT THE ASSISTANT
SECRETARY'S DECISION DOES NOT PRESENT ANY MAJOR POLICY ISSUE. FURTHER,
THE COUNCIL RULED THAT THE UNION DOES NOT ALLEGE, NOR DOES IT OTHERWISE
APPEAR, THAT THE ACTION OF THE ASSISTANT SECRETARY WAS ARBITRARY AND
CAPRICIOUS. ACCORDINGLY, SINCE THE UNION'S PETITION FOR REVIEW FAILED
TO MEET THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.12 OF THE
COUNCIL'S RULES (5 CFR 2411.12), THE COUNCIL DENIED THE UNION'S
PETITION.
DEAR MS. COOPER:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE, AND THE
AGENCY'S OPPOSITION THERETO.
IN AGREEMENT WITH THE ASSISTANT REGIONAL DIRECTOR, THE ASSISTANT
SECRETARY FOUND, IN PERTINENT PART, THAT THERE WAS INSUFFICIENT EVIDENCE
TO ESTABLISH A REASONABLE BASIS TO SUPPORT YOUR COMPLAINT IN WHICH YOU
ALLEGED THAT THE AGENCY SINGLED OUT A UNIT EMPLOYEE (THE PRESIDENT OF
NFFE LOCAL 1581) FOR JOB AUDIT PURPOSES BECAUSE OF HER UNION ACTIVITY IN
VIOLATION OF SUBSECTIONS 19(A)(1) AND (2) OF THE ORDER. THESE ALLEGED
VIOLATIONS OF THE ORDER WERE BASED ON A SERIES OF FIVE AUDITS OF THE
EMPLOYEE'S JOB CONDUCTED BY THE AGENCY DURING THE PERIOD 19701973 WHICH
CULMINATED IN A COMPLETE REWRITING OF HER POSITION DESCRIPTION AND
CHANGE IN HER JOB CLASSIFICATION BUT WITHOUT A CHANGE IN GRADE.
IN YOUR PETITION FOR REVIEW YOU CONTEND THAT THERE ARE SEVERAL MAJOR
POLICY ISSUES INVOLVED IN THE CASE, ARGUING IN SUMMARY: (1) THAT THE
ESTABLISHMENT OF A PRIMA FACIE CASE SHOULD BE SUFFICIENT TO REQUIRE THE
ASSISTANT REGIONAL DIRECTOR TO ISSUE A NOTICE OF HEARING, AND THAT THE
FACTS WHICH YOU ALLEGED WERE SUFFICIENT TO ESTABLISH SUCH A CASE OR
"CAUSE OF ACTION" UNDER SUBSECTIONS 19(A)(1) AND (2) OF THE ORDER; (2)
THAT QUESTIONS CONCERNING CREDIBILITY SHOULD BE RESOLVED BY
ADMINISTRATIVE LAW JUDGES, AND NOT BY THE AREA OR REGIONAL OFFICES OF
THE LABOR-MANAGEMENT SERVICES ADMINISTRATION, AND; (3) THAT THE
ASSISTANT SECRETARY ERRED IN RULING THAT THE AUDITS DID NOT DISCOURAGE
UNION MEMBERSHIP BECAUSE THE EMPLOYEE WAS NOT DOWNGRADED AS THEIR
RESULT.
IN THE COUNCIL'S VIEW, YOUR PETITION FOR REVIEW DOES NOT MEET THE
REQUIREMENTS OF SECTION 2411.12 OF THE COUNCIL'S RULES; THAT IS, THE
DECISION OF THE ASSISTANT SECRETARY DOES NOT APPEAR TO PRESENT A MAJOR
POLICY ISSUE, AND YOU DO NOT ALLEGE, NOR DOES IT APPEAR, THAT HIS ACTION
WAS ARBITRARY AND CAPRICIOUS. SPECIFICALLY, WITH REGARD TO THE ALLEGED
MAJOR POLICY ISSUES, PURSUANT TO THE AUTHORITY OF THE ASSISTANT
SECRETARY UNDER SECTION 6(D) OF THE ORDER TO PRESCRIBE REGULATIONS
NEEDED TO ADMINISTER HIS FUNCTIONS UNDER THE ORDER, AND CONSISTENT WITH
THE STUDY COMMITTEE REPORT AND RECOMMENDATIONS, WHICH PROVIDES THAT
"(I)F THE ASSISTANT SECRETARY FINDS THAT . . . A REASONABLE BASIS FOR
THE COMPLAINT HAS NOT BEEN ESTABLISHED, . . . HE MAY DISMISS THE
COMPLAINT," THE ASSISTANT SECRETARY HAS PROMULGATED REGULATIONS WHICH
PROVIDED, IN PERTINENT PART, THAT HE MAY CAUSE A NOTICE OF HEARING TO BE
ISSUED IF HE FINDS THAT THERE IS A "REASONABLE BASIS" FOR THE COMPLAINT.
HIS DECISION IN YOUR CASE WAS BASED ON THE APPLICATION OF THESE
REGULATIONS, AND YOUR PETITION PRESENTS NO PERSUASIVE REASONS TO SHOW
THAT THE ASSISTANT SECRETARY WAS WITHOUT AUTHORITY TO ESTABLISH SUCH A
REGULATORY REQUIREMENT OR THAT HE WRONGLY APPLIED THESE REGULATIONS TO
THE FACTS AND CIRCUMSTANCES OF THIS CASE. MOREOVER, YOUR APPEAL DOES
NOT DEMONSTRATE THAT SUBSTANTIAL FACTUAL ISSUES EXIST REQUIRING A
HEARING.
BECAUSE THE ASSISTANT SECRETARY'S DECISION DOES NOT PRESENT A MAJOR
POLICY ISSUE, AND YOU NEITHER ALLEGE, NOR DOES IT APPEAR, THAT HIS
DECISION IS ARBITRARY AND CAPRICIOUS, YOUR APPEAL FAILS TO MEET THE
REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.12 OF THE COUNCIL'S
RULES AND REGULATIONS. ACCORDINGLY, YOUR PETITION FOR REVIEW IS HEREBY
DENIED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
W. S. SCHRADER
DEPT. OF THE ARMY
3 FLRC 247; FLRC NO. 74A-31; MAY 9, 1975.
NFFE LOCAL 1555
AND
TOBACCO DIVISION, AMS, USDA
(SYNOPSIS) FLRC NO. 74A-31
NFFE LOCAL 1555 AND TOBACCO DIVISION, AMS, USDA. THE NEGOTIABILITY
DISPUTE CONCERNED UNION PROPOSALS RELATING TO: (1) UNION PARTICIPATION
IN INCENTIVE AWARDS COMMITTEE ACTIVITIES; AND (2) ALLOCATION OF A
CERTAIN PERCENTAGE OF ALL INCENTIVE AWARDS WITHIN THE AGENCY TO
EMPLOYEES REPRESENTED BY THE UNION.
COUNCIL ACTION (MAY 9, 1975). AS TO PROPOSAL (1), THE COUNCIL UPHELD
THE AGENCY DETERMINATION OF NONNEGOTIABILITY BY REASON OF HIGHER LEVEL
AGENCY REGULATION. IN THIS REGARD, THE COUNCIL, BASED ON AN
INTERPRETATION BY THE CIVIL SERVICE COMMISSION OF ITS OWN DIRECTIVES,
REJECTED THE UNION CONTENTION THAT THE SUBJECT AGENCY REGULATION
VIOLATED THE FEDERAL PERSONNEL MANUAL. LIKEWISE, THE COUNCIL FOUND,
CONTRARY TO THE UNION'S POSITION, THAT THE AGENCY REGULATION IS NOT
VIOLATIVE OF SECTION 10(E) OR 11(A) OF THE ORDER. WITH REGARD TO
PROPOSAL (2), THE COUNCIL, BASED ON AN INTERPRETATION BY THE CIVIL
SERVICE COMMISSION OF THE LAW GOVERNING INCENTIVE AWARDS WHICH IT IS
AUTHORIZED TO IMPLEMENT, HELD THAT THE UNION'S PROPOSAL VIOLATES THIS
LAW. THEREFORE, THE COUNCIL SUSTAINED THE AGENCY'S DETERMINATION AS TO
THE NONNEGOTIABILITY OF THE SUBJECT PROPOSAL.
NFFE LOCAL 1555 REPRESENTS ALL TOBACCO INSPECTORS IN THE TOBACCO
DIVISION, AGRICULTURAL MARKETING SERVICE (AMS), DEPARTMENT OF
AGRICULTURE. DURING RECENT CONTRACT NEGOTIATIONS WITH THE DIVISION, THE
UNION OFFERED TWO PROPOSALS ON INCENTIVE AWARDS (DETAILED HEREINAFTER)
WHICH THE DIVISION ASSERTED WERE NONNEGOTIABLE. UPON REFERRAL, AMS
DETERMINED THAT THE PROPOSALS WERE NONNEGOTIABLE BECAUSE THEY, IN
EFFECT, VIOLATED AMS REGULATIONS. THE UNION PETITIONED THE COUNCIL,
UNDER SECTION 11(C)(4) OF THE ORDER, FOR REVIEW OF THIS DETERMINATION.
THE DEPARTMENT OF AGRICULTURE FILED A STATEMENT OF POSITION.
THE NEGOTIABILITY QUESTIONS RELATING TO THE RESPECTIVE UNION
PROPOSALS WILL BE CONSIDERED SEPARATELY BELOW.
1. UNION PARTICIPATION IN INCENTIVE AWARDS COMMITTEE ACTIVITIES.
THIS PROPOSAL BY THE UNION READS AS FOLLOWS:
THE EMPLOYER AGREES THAT THE UNION SHALL HAVE REPRESENTATIVES AT
MEETINGS OF THE INCENTIVE
AWARDS COMMITTEE. SAID REPRESENTATIVES WILL PARTICIPATE IN
DELIBERATIONS AND DISCUSSIONS WITH
RESPECT TO PLANNING THE SUGGESTION PROGRAM, STIMULATING
PARTICIPATION, ESTABLISHING GOALS AND
TARGETS, EVALUATING PROGRESS AND APPRAISING EMPLOYEE, SUPERVISOR, AND
MANAGEMENT
REACTIONS. SAID REPRESENTATIVES SHALL ALSO PARTICIPATE IN
EVALUATIONS AND VOTING FOR NOMINEES
FOR INCENTIVE AWARDS.
AMS DETERMINED THAT THE PROPOSAL WOULD VIOLATE THE FOLLOWING PORTION
OF AMS INSTRUCTION 392-1 AND WAS THEREFORE NONNEGOTIABLE:
A C&MS (AMS) INCENTIVE AWARDS COMMITTEE SHALL BE NAMED ANNUALLY BY
THE ADMINISTRATOR TO
ADVISE AND ASSIST HIM IN THE ADMINISTRATION OF THE AGENCY'S INCENTIVE
AWARDS PROGRAM. THE
COMMITTEE SHALL CONSIST OF A CHAIRMAN, VICE CHAIRMAN, EXECUTIVE
SECRETARY, AND OTHER MEMBERS
AS MAY BE DEEMED NECESSARY BY THE ADMINISTRATOR TO PROVIDE
REPRESENTATION FROM THE MAJOR
PROGRAM AREAS.
THE UNION PRINCIPALLY CONTENDS THAT THIS PORTION OF AMS INSTRUCTION
392-1, ASSERTED AS A BAR TO THE NEGOTIABILITY OF ITS PROPOSAL, VIOLATES
PROVISIONS OF THE FEDERAL PERSONNEL MANUAL AND THE ORDER.
THE UNION'S ARGUMENTS WITH RESPECT TO THESE PROVISIONS WILL BE
DISCUSSED SEPARATELY BELOW.
A. FEDERAL PERSONNEL MANUAL: THE UNION ALLEGES THAT THE AMS
INSTRUCTION VIOLATES CHAPTER
451 OF THE FEDERAL PERSONNEL MANUAL, CITING PARTICULARLY SUBCHAPTERS
1-2, 2-1.B(2) AND
2-3. THE AGENCY IN ITS STATEMENT OF POSITION CONTENDS THAT THE
INSTRUCTION DOES NOT VIOLATE
THE FEDERAL PERSONNEL MANUAL.
SINCE THE CIVIL SERVICE COMMISSION HAS PRIMARY RESPONSIBILITY FOR THE
ISSUANCE AND
INTERPRETATION OF ITS OWN DIRECTIVES, INCLUDING THE FEDERAL PERSONNEL
MANUAL, THAT AGENCY WAS
REQUESTED, IN ACCORDANCE WITH COUNCIL PRACTICE, FOR AN INTERPRETATION
OF COMMISSION DIRECTIVES
AS THEY PERTAIN TO THE QUESTIONS RAISED IN THE PRESENT CASE. THE
COMMISSION REPLIED IN
RELEVANT PART AS FOLLOWS:
WITH REGARD TO THE UNION'S CONTENTION THAT THE AGENCY'S INSTRUCTION
392-1 CONFLICTS WITH
COMMISSION DIRECTIVES, THE MAIN ISSUE WOULD APPEAR TO BE WHETHER THE
ADMINISTRATION OF THE
INCENTIVE AWARDS PROGRAM MAY BE RETAINED AT THE LEVEL OF THE
AGRICULTURAL MARKETING SERVICE,
PER 392-1, OR WHETHER IT MUST BE DELEGATED TO SUBORDINATE UNITS
WITHIN AMS-- IN THIS INSTANCE,
THE TOBACCO DIVISION. FPM CHAPTER 451 REQUIRES THAT THE HEAD OF EACH
AGENCY ESTABLISH AND
OPERATE A PLAN FOR THE USE OF INCENTIVE AWARDS AND DELEGATE AUTHORITY
AND RESPONSIBILITY IN
THIS AREA TO BUREAUS, OFFICES, OR FIELD UNITS "TO THE DEPTH
CONSISTENT WITH SOUND
ADMINISTRATION AND EFFECTIVE PROGRAM LEADERSHIP" (UNDERSCORING
SUPPLIED). IN THE CASE UNDER
CONSIDERATION, THE OPERATING CHARACTERISTICS OF THE AMS ARE CITED AS
THE REASON FOR
ESTABLISHING THE INCENTIVE AWARDS COMMITTEE AND RETAINING PROGRAM
ADMINISTRATION AT THAT
LEVEL. WE FIND NO CONFLICT BETWEEN THIS DECISION OR THE INSTRUCTION
IMPLEMENTING IT AND
COMMISSION DIRECTIVES.
WHILE THE COMMISSION BELIEVES (FPM CHAPTER 451, 2-3) THAT TO DERIVE
MAXIMUM VALUE FROM THE
INCENTIVE AWARDS PROGRAM, EMPLOYEES AND SUPERVISORS MUST BE
ENCOURAGED TO PARTICIPATE IN
IMPROVING GOVERNMENT OPERATIONS, THIS SHOULD NOT BE READ TO REQUIRE
THE DELEGATION OF
AUTHORITY AND THE ESTABLISHMENT OF COMMITTEES AT THE LOWEST
ORGANIZATIONAL ENTITIES NOR TO
REQUIRE THE PARTICIPATION OF EMPLOYEE REPRESENTATIVES IN INCENTIVE
AWARD COMMITTEE
ACTIVITIES. SUCH PARTICIPATION IS PERMISSIBLE AND ENCOURAGED UNDER
COMMISSION DIRECTIVES, BUT
IT IS NOT MANDATORY.
BASED ON THE FOREGOING INTERPRETATION BY THE CIVIL SERVICE COMMISSION
OF ITS OWN ISSUANCES,
WE FIND THAT THE AMS INSTRUCTION IS NOT IN CONFLICT WITH COMMISSION
DIRECTIVES.
B. THE ORDER: THE UNION ALSO ARGUES THAT THE AMS INSTRUCTION, AS
INTERPRETED BY THE
AGENCY HEAD, VIOLATES SECTIONS 10(E) AND 11(A) OF THE ORDER.
FIRST, AS TO SECTION 10(E), THE UNION ARGUES THAT THE INSTRUCTION
DENIES IT THE RIGHT
GUARANTEED BY SECTION 10(E) OF THE ORDER TO BE REPRESENTED AT FORMAL
DISCUSSIONS BETWEEN
MANAGEMENT AND EMPLOYEES OR EMPLOYEE REPRESENTATIVES CONCERNING
MATTERS AFFECTING GENERAL
WORKING CONDITIONS OF THE EMPLOYEES IN THE UNIT. IT ASSERTS THAT
INCENTIVE AWARDS COMMITTEE
ACTIVITIES ARE OF CONCERN TO ALL EMPLOYEES IN THE UNIT.
SECTION 10(E) STATES, IN PERTINENT PART:
. . . THE LABOR ORGANIZATION (THAT HAS BEEN ACCORDED EXCLUSIVE
RECOGNITION) SHALL BE GIVEN
THE OPPORTUNITY TO BE REPRESENTED AT FORMAL DISCUSSIONS BETWEEN
MANAGEMENT AND EMPLOYEES OR
EMPLOYEE REPRESENTATIVES CONCERNING GRIEVANCES, PERSONNEL POLICIES
AND PRACTICES, OR OTHER
MATTERS AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE
UNIT.
IN NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES AND U.S. DEPARTMENT
OF COMMERCE, NATIONAL
OCEANIC AND ATMOSPHERIC ADMINISTRATION, NATIONAL WEATHER SERVICE,
FLRC NO. 74A-20 (JANUARY 27,
1975), REPORT NO. 62, WE CONSIDERED A SIMILAR ARGUMENT CONCERNING THE
MEANING AND INTENT OF
SECTION 10(E). ON PAGE 8 OF THE DECISION WE STATED:
THUS, THE PLAIN LANGUAGE OF SECTION 10(E) GRANTS LABOR ORGANIZATIONS
THE RIGHT TO BE
REPRESENTED AT FORMAL DISCUSSIONS BETWEEN MANAGEMENT AND EMPLOYEES OR
BETWEEN MANAGEMENT AND
EMPLOYEE REPRESENTATIVES CONCERNING MATTERS DESCRIBED IN THE
PROVISION. HOWEVER, SUCH
DISCUSSIONS AS MAY OCCUR UNDER THE REGULATION IN QUESTION HERE ARE
EXPRESSLY LIMITED TO
MANAGEMENT OFFICIALS. IN THIS REGARD, NOTHING IN THE "LEGISLATIVE
HISTORY" OF SECTION 10(E)
SUGGESTS THAT THE RIGHT TO BE REPRESENTED, GRANTED THEREIN TO LABOR
ORGANIZATIONS, WAS
INTENDED TO EXTEND TO DISCUSSIONS AMONG MANAGEMENT OFFICIALS, WHETHER
SUCH DISCUSSIONS ARE
FORMAL OR INFORMAL, AND REGARDLESS OF THEIR SUBJECT MATTER.
HENCE, IN THE COUNCIL'S VIEW, CONTRARY TO THE UNION'S CONTENTION,
SECTION 10(E) DOES NOT
EXTEND ANY RIGHT TO LABOR ORGANIZATIONS TO BE PRESENT AT
INTRA-MANAGEMENT DISCUSSIONS, EVEN IF
SUCH DISCUSSIONS MAY BE FORMAL AND PERTAIN TO GRIEVANCES, PERSONNEL
POLICIES AND PRACTICES, OR
OTHER MATTERS AFFECTING THE GENERAL WORKING CONDITIONS OF THE
EMPLOYEES IN THE
UNIT. (EMPHASIS IN ORIGINAL.)
THE REASONING CONTAINED IN THE ABOVE-QUOTED PORTION OF THE NATIONAL
WEATHER SERVICE
DECISION IS DISPOSITIVE OF THE ARGUMENTS MADE BY THE UNION WITH
RESPECT TO SECTION 10(E) IN
THE INSTANT CASE BECAUSE PARTICIPATION IN INCENTIVE AWARDS COMMITTEE
ACTIVITIES IS, AS IS
REFLECTED IN THE MEMBERSHIP OF THE AMS INCENTIVE AWARDS COMMITTEE AS
DESIGNATED BY THE AMS
ADMINISTRATOR AND BY REASON OF THE MANNER IN WHICH THE LANGUAGE OF
THE AMS INSTRUCTION HAS
BEEN INTERPRETED BY THE AGENCY HEAD, LIMITED TO MANAGEMENT OFFICIALS
OF THE VARIOUS PROGRAM
AREAS WITHIN AMS.
FURTHER, THE UNION ARGUES THAT THE AMS INSTRUCTION VIOLATES SECTION
11(A) OF THE ORDER,
CITING LANGUAGE IN THE 1969 STUDY COMMITTEE REPORT AND
RECOMMENDATIONS WHICH LED TO THE
ISSUANCE OF E.O. 11491, AND THE COUNCIL'S DECISION IN UNITED
FEDERATION OF COLLEGE TEACHERS
LOCAL 1460 AND U.S. MERCHANT MARINE ACADEMY, FLRC NO. 71-A15
(NOVEMBER 20, 1972), REPORT
NO. 30. WITH RESPECT TO ITS RELIANCE UPON THE MERCHANT MARINE
DECISION, THE UNION ASSERTS
THAT THE GRANTING OF INCENTIVE AWARDS WITHIN THE TOBACCO DIVISION IS
A PERSONNEL POLICY WHICH
IS UNIQUE TO THAT ACTIVITY, AND THAT THE AGENCY INSTRUCTION, IN
EFFECT, DENIES TO EMPLOYEES IN
THE UNIT " . . . THE RIGHT TO MAKE THIS DECISION AT THIS LEVEL . . .
"
THE AGENCY IN ITS STATEMENT OF POSITION FINDS NO VIOLATION OF THE
ORDER AND IT
DISTINGUISHES THE APPLICABILITY OF THE COUNCIL'S DECISION IN MERCHANT
MARINE AS AUTHORITY FOR
DETERMINING THAT THE AMS INSTRUCTION IS NOT A BAR TO THE
NEGOTIABILITY OF THE UNION'S PROPOSAL
BECAUSE "(I)N MERCHANT MARINE THE HIGHER LEVEL REGULATIONS WERE
APPLICABLE AND SPECIFIC ONLY
TO THE ACTIVITY WITH WHICH THE UNION WAS NEGOTIATING."
SECTION 11(A), WHICH PRESCRIBES THE BARGAINING OBLIGATION BETWEEN AN
AGENCY AND A LABOR
ORGANIZATION THAT HAS BEEN ACCORDED EXCLUSIVE RECOGNITION IS
EXPRESSLY LIMITED, AMONG OTHER
WAYS, BY THE PHRASE "APPLICABLE LAWS AND REGULATIONS, INCLUDING . . .
PUBLISHED AGENCY
POLICIES AND REGULATIONS." /1/
AS TO THE MEANING OF THIS PHRASE OF SECTION 11(A), THE COUNCIL HELD
IN MERCHANT MARINE THAT
HIGHER LEVEL AGENCY REGULATIONS ISSUED TO ACHIEVE A DESIRABLE DEGREE
OF UNIFORMITY AND
EQUALITY IN THE ADMINISTRATION OF MATTERS COMMON TO MORE THAN ONE
ACTIVITY WITHIN THE AGENCY
WERE COMPLETELY CONSISTENT WITH THE OBLIGATION IMPOSED BY SECTION
11(A) AND COULD PROPERLY
LIMIT THE SCOPE OF NEGOTIATIONS AT SUBORDINATE ACTIVITIES OF THE
AGENCY.
THE RECORD IN THE INSTANT CASE DISCLOSES THAT THE AMS INSTRUCTION
ESTABLISHES AN INCENTIVE
AWARDS COMMITTEE AND OUTLINES THE COMMITTEE'S RESPONSIBILITIES. IT
WAS ISSUED BY AMS, AN
OPERATIONAL SUBDIVISION WITHIN THE DEPARTMENT OF AGRICULTURE, AND IS
APPLICABLE UNIFORMLY TO
THE 14 SUBORDINATE ELEMENTS INTO WHICH AMS HAS BEEN ORGANIZED. ONE
OF THESE ELEMENTS IS THE
TOBACCO DIVISION WHERE THE UNION HAS BEEN GRANTED EXCLUSIVE
RECOGNITION. THUS, THE
INSTRUCTION GOVERNING INCENTIVE AWARDS ESTABLISHES PERSONNEL POLICIES
WHICH ARE APPLICABLE TO
ALL SUBORDINATE ELEMENTS OF AMS, INCLUDING THE TOBACCO DIVISION. THE
REGULATION DOES NOT
ESTABLISH PERSONNEL POLICIES WHICH ARE APPLICABLE ONLY TO THE TOBACCO
DIVISION.
THE REASON FOR THE ISSUANCE OF THE REGULATION AT THE AMS LEVEL,
ACCORDING TO THE AGENCY'S
STATEMENT OF POSITION, IS "TO ASSURE THAT THE CONDUCT AND APPLICATION
OF THE (INCENTIVE
AWARDS) PROGRAM IS CARRIED OUT IN A UNIFORM AND EQUITABLE MANNER
THROUGHOUT THE AGRICULTURAL
MARKETING SERVICE."
BASED ON THE NATURE OF THE REGULATION AND THE CIRCUMSTANCES
SURROUNDING ITS ISSUANCE, WE
FIND THAT IT WAS ISSUED TO ACHIEVE A DEGREE OF UNIFORMITY AND
EQUALITY IN THE ADMINISTRATION
OF A MATTER COMMON TO ALL SUBORDINATE LEVELS OF AMS, I.E., THE
INCENTIVE AWARDS PROGRAM, TO
ACCOMPLISH EFFECTIVE DIRECTION AND CONTROL AND MAINTAIN EFFICIENCY IN
THE ADMINISTRATION OF
THE INCENTIVE AWARDS PROGRAM AT THESE SUBORDINATE LEVELS. HENCE, IT
IS THE TYPE OF HIGHER
LEVEL PUBLISHED POLICY OR REGULATION THAT MAY PROPERLY BAR
NEGOTIATIONS AT SUBORDINATE LEVELS,
INCLUDING THE TOBACCO DIVISION, UNDER SECTION 11(A) OF THE ORDER.
/2/
WITH REGARD TO THE UNION'S RELIANCE UPON THE LANGUAGE IN THE 1969
STUDY COMMITTEE REPORT
AND RECOMMENDATIONS WHICH LED TO THE ISSUANCE OF E.O. 11491, THE
UNION REFERS TO SUCH
STATEMENTS AS "AGENCIES SHOULD INCREASE, WHERE PRACTICABLE,
DELEGATIONS OF AUTHORITY ON
PERSONNEL POLICY MATTERS TO LOCAL MANAGERS TO PERMIT A WIDER SCOPE
FOR NEGOTIATION (AND)
AGENCIES SHOULD NOT ISSUE OVER-PRESCRIPTIVE REGULATIONS . . . " THE
COUNCIL HAS PREVIOUSLY
CONSIDERED THIS LANGUAGE IN SEATTLE CENTER CONTROLLER'S UNION AND
FEDERAL AVIATION
ADMINISTRATION, FLRC NO. 71A-57 (MAY 9, 1973), REPORT NO. 37 AND
FOUND, NOTWITHSTANDING SUCH
EXHORTATIVE LANGUAGE, THE REPORT AS WELL AS THE ORDER, FULLY SUPPORTS
THE AUTHORITY OF AN
AGENCY HEAD TO ISSUE REGULATIONS FOR THE OPERATION OF THE AGENCY. AS
THE COUNCIL EMPHASIZED
IN MERCHANT MARINE:
(W)E ARE FULLY AWARE OF, AND ENDORSE, THE POLICY OF THE ORDER TO
SUPPORT SUCH REGULATORY
AUTHORITY, IN ORDER TO PROTECT THE PUBLIC INTEREST AND MAINTAIN
EFFICIENCY OF GOVERNMENT
OPERATIONS. THIS POLICY IS INCORPORATED IN SECTION 11(A) BY EXPRESS
REFERENCE TO "PUBLISHED
AGENCY POLICIES AND REGULATIONS" AS AN APPROPRIATE LIMITATION ON THE
SCOPE OF
NEGOTIATIONS. (FOOTNOTE OMITTED.)
ACCORDINGLY, WE FIND THAT AMS INSTRUCTION 392-1 DOES NOT VIOLATE
SECTIONS 10(E) AND 11(A)
OF THE ORDER AND IS A BAR UNDER SECTION 11(A) TO THE NEGOTIABILITY OF
THE UNION'S PROPOSAL.
2. ALLOCATION OF A CERTAIN PERCENTAGE OF ALL INCENTIVE AWARDS WITHIN
THE AGENCY TO EMPLOYEES REPRESENTED BY THE UNION.
THIS PROPOSAL BY THE UNION READS AS FOLLOWS:
THE NUMBER OF INCENTIVE AWARDS GIVEN TO EMPLOYEES OF THE TOBACCO
DIVISION OF THE
AGRICULTURAL MARKETING SERVICE SHALL NOT VARY BY MORE THAN ONE
PERCENT LESS THAN THOSE FOR
EMPLOYEES OF THE OTHER DEPARTMENT DIVISIONS. THIS PROVISION SHALL IN
NO WAY PREVENT THE
VARIATION IN THE NUMBER OF AWARDS IN AN UPWARD DIRECTION, PROVIDED
SUCH INCREASE IS JUSTIFIED
BY THE QUALITY OF THE EMPLOYEE PERFORMANCE IN THE TOBACCO DIVISION.
THE AGENCY IN ITS STATEMENT OF POSITION PRINCIPALLY CONTENDS THAT THE
UNION'S PROPOSAL IS NONNEGOTIABLE BECAUSE IT VIOLATES CHAPTER 451 OF THE
FEDERAL PERSONNEL MANUAL, PARTICULARLY SUBCHAPTER 1-2(A)(1)-(3) AND
SIMILAR PROVISIONS CONTAINED IN AMS INSTRUCTION 390-1. THE UNION, IN
EFFECT, CONTENDS THAT THE POSITION TAKEN BY THE AGENCY VIOLATES SECTION
11(A) AND 11(B) OF THE ORDER BECAUSE THE "AGENCY HAS FAILED TO QUOTE A
REGULATION WHICH FORBIDS NEGOTIATION ON PERCENTAGES OF INCENTIVE AWARDS
FOR UNIT EMPLOYEES."
BECAUSE OF THE AGENCY'S RELIANCE ON PROVISIONS OF THE FEDERAL
PERSONNEL MANUAL, AN INTERPRETATION WAS SOUGHT FROM THE CIVIL SERVICE
COMMISSION. THE COMMISSION REPLIED IN RELEVANT PART AS FOLLOWS:
WITH REGARD TO THE UNION'S SECOND PROPOSAL AND ITS COMPATIBILITY WITH
TITLE 5, U.S. CODE,
WE DIRECT YOUR ATTENTION TO SECTION 4503:
"THE HEAD OF AN AGENCY MAY PAY A CASH AWARD TO, AND INCUR NECESSARY
EXPENSE FOR THE
HONORARY RECOGNITION OF AN EMPLOYEE WHO (1) BY HIS SUGGESTION,
INVENTION, SUPERIOR
ACCOMPLISHMENT OR OTHER PERSONAL EFFORT CONTRIBUTES TO THE
EFFICIENCY, ECONOMY OR OTHER
IMPROVEMENT OF GOVERNMENT OPERATIONS; OR (2) PERFORMS A SPECIAL ACT
OR SERVICE IN THE PUBLIC
INTEREST IN CONNECTION WITH OR RELATED TO HIS OFFICIAL EMPLOYMENT."
(UNDERSCORING SUPPLIED.)
WE BELIEVE THIS SECTION CLEARLY REQUIRES THAT AWARDS BE GRANTED
SOLELY ON THE BASIS OF
MERIT. THE UNION'S PROPOSAL-- THAT AWARDS GIVEN TO EMPLOYEES IN THE
TOBACCO DIVISION MAY NOT
VARY BY MORE THAN ONE PERCENT LESS THAN AWARDS FOR EMPLOYEES IN OTHER
DEPARTMENT DIVISIONS--
WOULD INTRODUCE CRITERIA INTO THE GRANTING OF AWARDS THAT ARE WHOLLY
EXTRANEOUS TO THE MERIT
OF THE EMPLOYEE'S CONTRIBUTION OR PERFORMANCE. THAT THIS RESULT IS
INTENDED IS APPARENT FROM
A READING OF THE SECOND SENTENCE OF THE PROPOSAL: "THIS PROVISION
SHALL IN NO WAY PREVENT THE
VARIATION IN THE NUMBER OF AWARDS IN AN UPWARD DIRECTION, PROVIDED
SUCH INCREASE IS JUSTIFIED
BY THE QUALITY OF THE EMPLOYEE'S PERFORMANCE IN THE TOBACCO
DIVISION." SUCH A PROVISION
CLEARLY INDICATES THAT AWARDS REQUIRED TO MEET THE PROPOSED MINIMUM
NEED NOT BE JUSTIFIED BY
THE QUALITY OF THE EMPLOYEE'S PERFORMANCE. THUS, THE PROPOSAL WOULD
BE INCOMPATIBLE WITH THE
LAW.
BASED ON THE FOREGOING INTERPRETATION BY THE CIVIL SERVICE COMMISSION
OF THE LAW IT IS AUTHORIZED TO IMPLEMENT, /3/ WE FIND THAT THE UNION'S
PROPOSAL VIOLATES THE LAW GOVERNING INCENTIVE AWARDS. IN VIEW OF OUR
FINDING THAT THE UNION'S PROPOSAL VIOLATES LAW, IT IS NOT DEEMED
NECESSARY TO CONSIDER THE UNION'S CONTENTION CONCERNING SECTION 11(A)
AND 11(B) OF THE ORDER. ACCORDINGLY, WE SUSTAIN THE AGENCY'S
DETERMINATION AS TO THE NONNEGOTIABILITY OF THE UNION'S PROPOSAL.
BASED UPON THE REASONS SET FORTH ABOVE, AND PURSUANT TO SECTION
2411.27 OF THE COUNCIL'S RULES AND REGULATIONS, WE FIND THAT THE AGENCY
HEAD'S DETERMINATION THAT THE UNION PROPOSALS HERE INVOLVED ARE
NONNEGOTIABLE WAS PROPER AND MUST, THEREFORE, BE SUSTAINED.
BY THE COUNCIL
ISSUED: MAY 9, 1975
/1/ SECTION 11(A) PROVIDES IN RELEVANT PART:
RECOGNITION, THROUGH APPROPRIATE REPRESENTATIVES, SHALL MEET AT
REASONABLE TIMES AND CONFER IN
GOOD FAITH WITH RESPECT TO PERSONNEL POLICIES AND PRACTICES AND
MATTERS AFFECTING WORKING
CONDITIONS, SO FAR AS MAY BE APPROPRIATE UNDER APPLICABLE LAWS AND
REGULATIONS, INCLUDING
POLICIES SET FORTH IN THE FEDERAL PERSONNEL MANUAL, PUBLISHED AGENCY
POLICIES AND REGULATIONS
. . . AND THIS ORDER . . .
ALTHOUGH THIS PROVISION OF THE ORDER WAS RECENTLY AMENDED BY E.O.
11838, THE AMENDMENT WILL NOT GO INTO EFFECT UNTIL 90 DAYS AFTER
ISSUANCE BY THE COUNCIL OF THE CRITERIA FOR DETERMINING COMPELLING NEED;
HENCE, THE AMENDMENT IS NOT MATERIAL TO THE COUNCIL'S DECISION HEREIN.
/2/ ACCORD, NATIONAL FEDERATION OF FEDERAL EMPLOYEES LOCAL 779 AND
DEPARTMENT OF THE AIR FORCE, SHEPPARD AIR FORCE BASE, TEXAS, FLRC NO.
71A-60 (APRIL 3, 1973), REPORT NO. 36; SEATTLE CENTER CONTROLLER'S
UNION AND FEDERAL AVIATION ADMINISTRATION, FLRC NO. 71A-57 (MAY 9,
1973), REPORT NO. 37; NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES AND
U.S. DEPARTMENT OF COMMERCE, NATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION, NATIONAL WEATHER SERVICE, FLRC NO. 74A-70 (JANUARY 27,
1975), REPORT NO. 62; CF., DEPARTMENT OF DEFENSE, AIR FORCE DEFENSE
LANGUAGE INSTITUTE, ENGLISH LANGUAGE BRANCH, LACKLAND AIR FORCE BASE,
TEXAS AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL UNION 1367,
A/SLMR NO. 322, FLRC NO. 73A-64 (OCTOBER 25, 1974), REPORT NO. 58.
/3/ THE COMMISSION IS AUTHORIZED UNDER 5 U.S.C. 4506 TO PRESCRIBE
REGULATIONS GOVERNING THE GRANTING OF INCENTIVE AWARDS TO CIVILIAN
EMPLOYEES. THESE REGULATIONS ARE SET FORTH IN CHAPTER 451 OF THE
FEDERAL PERSONNEL MANUAL.