6 FLRC 1185; FLRC NO. 78A-111; DECEMBER 28, 1978.
(SYNOPSIS) FLRC NO. 78A-111
INTERNAL REVENUE SERVICE AND BROOKHAVEN SERVICE CENTER, A/SLMR NO.
1092. THE ASSISTANT SECRETARY DISMISSED THE COMPLAINT FILED BY THE
UNION (NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 99), WHICH
ALLEGED THAT THE ACTIVITY VIOLATED SECTION 19(A)(1) OF THE ORDER BY
DENYING FOUR EMPLOYEES UNION REPRESENTATION IN AGENCY GRIEVANCE
PROCEEDINGS. THE UNION APPEALED TO THE COUNCIL, CONTENDING THAT THE
ASSISTANT SECRETARY'S DECISION WAS ARBITRARY AND CAPRICIOUS AND
PRESENTED MAJOR POLICY ISSUES.
COUNCIL ACTION (DECEMBER 28, 1978). THE COUNCIL HELD THAT THE
UNION'S PETITION FOR REVIEW DID NOT MEET THE REQUIREMENTS OF SECTION
2411.12 OF THE COUNCIL'S RULES OF PROCEDURE; THAT IS, THE DECISION OF
THE ASSISTANT SECRETARY DID NOT APPEAR ARBITRARY AND CAPRICIOUS OR
PRESENT ANY MAJOR POLICY ISSUES. ACCORDINGLY, THE COUNCIL DENIED THE
UNION'S PETITION FOR REVIEW.
DECEMBER 28, 1978
MR. JOHN F. BUFE
ASSOCIATE GENERAL COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
SUITE 1101
1730 K STREET, NW.
WASHINGTON, D.C. 20006
RE: INTERNAL REVENUE SERVICE AND
BROOKHAVEN SERVICE CENTER, A/SLMR
NO. 1092, FLRC NO. 78A-111
DEAR MR. BUFE:
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.
THE CASE AROSE WHEN THE NATIONAL TREASURY EMPLOYEES UNION AND NTEU
CHAPTER 99 (THE UNION) FILED AN UNFAIR LABOR PRACTICE COMPLAINT ALLEGING
THAT THE INTERNAL REVENUE SERVICE AND ITS BROOKHAVEN SERVICE CENTER (THE
AGENCY) HAD VIOLATED SECTION 19(A)(1) OF THE ORDER BY DENYING FOUR
EMPLOYEES THEIR DESIGNATED CHOICE OF PERSONAL REPRESENTATIVES IN AGENCY
GRIEVANCE PROCEEDINGS SOLELY BECAUSE THOSE CHOSEN REPRESENTATIVES WERE
AFFILIATED WITH THE UNION. AS FOUND BY THE ASSISTANT SECRETARY, FOUR
EMPLOYEES IN A BARGAINING UNIT EXCLUSIVELY REPRESENTED BY THE UNION
APPLIED FOR PROMOTION TO SUPERVISORY POSITIONS. PURSUANT TO AGENCY
REGULATIONS, EACH APPLICANT'S SUPERVISOR PREPARED A PERFORMANCE
EVALUATION AND A REPORT OF MANAGERIAL POTENTIAL TO BE USED IN EVALUATING
THE CANDIDATES' RELATIVE MERITS FOR THE SUPERVISORY POSITIONS. AFTER
RECEIVING COPIES OF THEIR EVALUATIONS AND REPORTS, THE FOUR APPLICANTS
FILED GRIEVANCES UNDER THE AGENCY GRIEVANCE PROCEDURE CONTESTING THEIR
PROMOTION EVALUATIONS. EACH APPLICANT DESIGNATED A UNION OFFICIAL AS
HER REPRESENTATIVE IN THE AGENCY PROCEEDING. HOWEVER, THE DIRECTOR OF
THE BROOKHAVEN SERVICE CENTER INFORMED THE GRIEVANTS THAT THEIR REQUESTS
FOR UNION REPRESENTATION WOULD BE DENIED, STATING, "SINCE YOU HAVE
APPLIED FOR A SUPERVISORY POSITION, UNION REPRESENTATION ON THIS AGENCY
GRIEVANCE WOULD PRESENT A POTENTIAL CONFLICT OF INTEREST." HE FURTHER
ADVISED THE APPLICANTS THAT THEY COULD HAVE ANY REPRESENTATIVE OF THEIR
CHOICE "AS LONG AS THAT INDIVIDUAL IS NOT A STEWARD OR OFFICIAL OF
NTEU." THE UNION APPEALED THIS ACTION TO AGENCY HEADQUARTERS, WHICH,
BASED UPON CIVIL SERVICE COMMISSION REGULATIONS (5 C.F.R. 771.105(C)(2),
/1/ AFFIRMED THE DECISION TO DENY THE EMPLOYEES THEIR DESIGNATED UNION
REPRESENTATIVES.
THE ASSISTANT SECRETARY FOUND, IN THE PARTICULAR CIRCUMSTANCES OF
THIS CASE, THAT THE AGENCY'S DENIAL OF UNION REPRESENTATION TO THE FOUR
EMPLOYEES INVOLVED UNDER THE AGENCY GRIEVANCE PROCEDURE HEREIN DID NOT
VIOLATE SECTION 19(A)(1) OF THE ORDER. IN SO CONCLUDING THE ASSISTANT
SECRETARY STATED:
. . . I FIND THAT, ABSENT EVIDENCE OF ANTI-UNION MOTIVATION, THE
ENFORCEMENT OF THE RULES
GOVERNING (THE AGENCY'S) GRIEVANCE PROCEDURE, WHICH PROCEDURE IS THE
CREATION OF THE (AGENCY)
PURSUANT TO THE REQUIREMENTS OF THE CIVIL SERVICE COMMISSION, IS THE
RESPONSIBILITY OF THE
(AGENCY) AND THE CIVIL SERVICE COMMISSION. /3/ AND WHERE, AS HERE,
THE COMMISSION HAS
SPECIFICALLY REGULATED AGENCY GRIEVANCE PROCEDURES BY PROVIDING THAT
AN AGENCY HEAD MAY DENY
EMPLOYEES A PARTICULAR REPRESENTATIVE ON THE GROUNDS OF CONFLICT OF
INTEREST OR CONFLICT OF
POSITION, IN MY VIEW, THE UNFAIR LABOR PRACTICE PROCEDURES OF THE
ORDER CANNOT, IN EFFECT, BE
UTILIZED TO POLICE THE AGENCY'S APPLICATION OF THE COMMISSION'S
REGULATIONS.
IN YOUR PETITION FOR REVIEW ON BEHALF OF THE UNION, YOU ALLEGE THAT
THE ASSISTANT SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS IN THAT
HIS FINDING THAT THE AGENCY'S ACTION IN DENYING DESIGNATED UNION
REPRESENTATION IN AN AGENCY GRIEVANCE PROCEEDING DID NOT VIOLATE SECTION
19(A)(1) OF THE ORDER IS "TOTALLY UNSUPPORTABLE." YOU FURTHER ALLEGE
THAT THE ASSISTANT SECRETARY'S DECISION PRESENTS TWO MAJOR POLICY
ISSUES, AS FOLLOWS:
1. WHETHER THE (ASSISTANT SECRETARY) AND THE COUNCIL POSSESS THE
AUTHORITY TO INVOKE THE
UNFAIR LABOR PRACTICE PROCEDURES OF THE EXECUTIVE ORDER TO SAFEGUARD
EXECUTIVE ORDER RIGHTS
WHEN AN AGENCY INCORRECTLY APPLIES CIVIL SERVICE COMMISSION
REGULATIONS AND THEREBY INFRINGES
UPON RIGHTS GUARANTEED BY THE ORDER?
2. WAS THE (AGENCY) REFUSAL TO PERMIT FOUR (4) BARGAINING UNIT
EMPLOYEES UNION
REPRESENTATION IN AGENCY GRIEVANCES CONTESTING THEIR PROMOTION
EVALUATIONS FOR SUPERVISORY
POSITIONS A VIOLATION OF SECTION 19(A)(1) OF THE ORDER?
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 OR PRESENT ANY MAJOR POLICY ISSUES.
THUS, 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 THAT THE AGENCY'S DENIAL OF UNION REPRESENTATION TO THE
FOUR EMPLOYEES INVOLVED UNDER THE AGENCY GRIEVANCE PROCEDURE HEREIN DID
NOT VIOLATE SECTION 19(A)(1) OF THE ORDER IN THE PARTICULAR
CIRCUMSTANCES OF THIS CASE.
MOREOVER, IN THE COUNCIL'S VIEW, THE ASSISTANT SECRETARY'S DECISION
PRESENTS NO MAJOR POLICY ISSUE WARRANTING COUNCIL REVIEW. THUS, WITH
REGARD TO THE FIRST ALLEGED MAJOR POLICY ISSUE, YOUR APPEAL FAILS TO
CONTAIN ANY SUPPORT FOR THE ASSERTION THAT "THE AGENCY INCORRECTLY
APPLIE(D) CIVIL SERVICE COMMISSION REGULATIONS AND THEREBY INFRINGE(D)
UPON RIGHTS GUARANTEED BY THE ORDER." RATHER, SUCH ASSERTION, AND THE
RELATED SECOND ALLEGED MAJOR POLICY ISSUE AS TO WHETHER THE AGENCY'S
CONDUCT HEREIN VIOLATED SECTION 19(A)(1) OF THE ORDER, BOTH CONSTITUTE,
ESSENTIALLY, MERE DISAGREEMENT WITH THE ASSISTANT SECRETARY'S CONCLUSION
THAT THE AGENCY'S DENIAL OF UNION REPRESENTATION TO THE FOUR EMPLOYEES
INVOLVED IN THE AGENCY GRIEVANCE PROCEDURE DID NOT VIOLATE SECTION
19(A)(1) IN THE PARTICULAR CIRCUMSTANCES OF THIS CASE. FURTHER, YOUR
APPEAL DOES NOT PROVIDE ANY BASIS FOR CONCLUDING THAT THE ASSISTANT
SECRETARY'S DECISION WAS IN ANY MANNER INCONSISTENT WITH THE PURPOSES
AND POLICIES OF THE ORDER OR APPLICABLE COUNCIL PRECEDENT. IN THIS
REGARD, THE COUNCIL HAS PREVIOUSLY DENIED REVIEW OF A DECISION OF THE
ASSISTANT SECRETARY IN WHICH HE HELD THAT NO REASONABLE BASIS FOR THE
UNION'S COMPLAINT (ALLEGING THAT THE ACTIVITY HAD VIOLATED SECTION
19(A)(1) AND (2) OF THE ORDER BY FAILING TO GRANT AN EMPLOYEE AND HIS
UNION REPRESENTATIVE EITHER OFFICIAL TIME OR AN EXTENSION OF TIME TO
APPEAL THE ACTIVITY'S DENIAL OF THE EMPLOYEE'S GRIEVANCE UNDER THE
AGENCY GRIEVANCE PROCEDURE) HAD BEEN ESTABLISHED. /2/
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS OR PRESENT ANY MAJOR POLICY ISSUES, 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.
SINCERELY,
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
CC: A/SLMR
LABOR
R. F. HERMANN
IRS
/1/ 5 C.F.R.PART 771 (AGENCY GRIEVANCE SYSTEM) SEC. 771.105 PROVIDES,
IN PERTINENT PART:
SEC. 771.105 PRESENTATION OF A GRIEVANCE
(C) THE AGENCY SHALL HAVE THE RIGHT:
. . . .
(2) TO DISALLOW ANY SELECTION THE EMPLOYEE MAKES WITH REGARD TO A
REPRESENTATIVE ON THE
GROUNDS OF CONFLICT OF INTEREST OR CONFLICT OF POSITION.
(D) THE EMPLOYEE SHALL HAVE THE RIGHT TO CHALLENGE THE DECISION TO
DISALLOW HIS/HER CHOICE
OF REPRESENTATION TO THE HEAD OF THE AGENCY OR A PERSON THE HEAD OF
THE AGENCY HAS DESIGNATED
AND OBTAIN A DECISION BEFORE PROCEEDING WITH A GRIEVANCE, IN
ACCORDANCE WITH PROCEDURES
DESCRIBED IN THE AGENCY GRIEVANCE SYSTEM . . . THE DECISION (OF THE
AGENCY HEAD OR HIS/HER
DESIGNEE) WILL BE FINAL.
/2/ HEADQUARTERS, 31ST COMBAT SUPPORT GROUP (TAC), HOMESTEAD AIR
FORCE BASE, FLORIDA, ASSISTANT SECRETARY CASE NO. 42-2575, 3 FLRC 526
(FLRC NO. 75A-51 (AUG. 14, 1975), REPORT NO. 80). SEE ALSO, OFFICE OF
ECONOMIC OPPORTUNITY, REGION V. CHICAGO, ILLINOIS, A/SLMR NO. 334, 2
FLRC 119 (FLRC NO. 74A-3 (APR. 29, 1974), REPORT NO. 52).
6 FLRC 1179; FLRC NO. 78A-108; DECEMBER 28, 1978.
(SYNOPSIS) FLRC NO. 78A-108
VETERANS ADMINISTRATION, VETERANS ADMINISTRATION DATA PROCESSING
CENTER AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1969
(BOGNANNO, ARBITRATOR). THE ARBITRATOR HELD THAT THE AGENCY VIOLATED
THE PARTIES' NEGOTIATED AGREEMENT WHEN IT IMPLEMENTED A NEW STAFFING
PATTERN INVOLVING ROTATING TOURS OF DUTY, DETERMINING THAT DURING THE
TERM OF THE AGREEMENT THE ACTIVITY COULD NOT UNILATERALLY EFFECT ANY
CHANGES WHICH VIOLATED THE AGREED METHOD OF STAFFING ANY TOUR OF DUTY
PROGRAM, NEW OR OLD. THE AGENCY FILED EXCEPTIONS TO THE AWARD WITH THE
COUNCIL ALLEGING THAT THE AWARD VIOLATED SECTION 12(B)(4) AND (5) OF THE
ORDER.
COUNCIL ACTION (DECEMBER 28, 1978). THE COUNCIL HELD THAT THE
AGENCY'S PETITION DID NOT DESCRIBE FACTS AND CIRCUMSTANCES NECESSARY TO
SUPPORT ITS EXCEPTIONS. ACCORDINGLY, THE COUNCIL DENIED THE AGENCY'S
PETITION BECAUSE IT FAILED TO MEET THE REQUIREMENTS SET FORTH IN SECTION
2411.32 OF THE COUNCIL'S RULES OF PROCEDURE.
DECEMBER 28, 1978
MR. JAMES C. KLEIN
ATTORNEY
OFFICE OF THE GENERAL COUNSEL
VETERANS ADMINISTRATION
WASHINGTON, D.C. 20420
RE: VETERANS ADMINISTRATION, VETERANS ADMINISTRATION
DATA PROCESSING CENTER AND AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, LOCAL 1969 (BOGNANNO,
ARBITRATOR), FLRC NO. 78A-108
DEAR MR. KLEIN:
THE COUNCIL HAS CAREFULLY CONSIDERED THE AGENCY'S PETITION FOR REVIEW
OF THE ARBITRATOR'S AWARD IN THE ABOVE-ENTITLED CASE.
ACCORDING TO THE ARBITRATOR'S AWARD, THIS DISPUTE AROSE AS THE RESULT
OF THE UNILATERAL INAUGURATION BY THE ACTIVITY OF A NEW STAFFING CONCEPT
KNOWN AS FOUR TOUR ROTATING SHIFT SCHEDULE. THIS NEW STAFFING PATTERN
INVOLVED THE FIXED ASSIGNMENT OF FIVE EMPLOYEES TO A CREW WHICH WOULD
ROTATE THROUGH EACH OF FOUR TOURS OF DUTY EVERY 28 DAYS. THE PREVIOUS
STAFFING PATTERN INVOLVED, GENERALLY, INDIVIDUAL EMPLOYEE CHOICE BY
SENIORITY OF A SPECIFIC TOUR OF DUTY WHICH CHOICE WAS BINDING FOR A
MINIMUM OF TWELVE WEEKS. A GRIEVANCE WAS FILED AND ULTIMATELY SUBMITTED
TO ARBITRATION THAT DISPUTED THE PROPRIETY OF THE NEW STAFFING CONCEPT.
THE PARTIES STIPULATED THE ISSUE TO BE RESOLVED BY THE ARBITRATOR:
DOES THE EMPLOYER'S IMPLEMENTATION OF ROTATING TOURS OF DUTY . . .
VIOLATE ARTICLE IX,
SECTION . . . G OF THE NEGOTIATED AGREEMENT? /1/
AS FIRST OBSERVED BY THE ARBITRATOR, THE RECORD WAS UNEQUIVOCAL THAT
IN PAST PRACTICE AND PRIOR TO THE INSTITUTION OF THE NEW STAFFING
PATTERN, SCHEDULING FOR ALL "IRREGULAR" TOURS OF DUTY (I.E., ANY TOUR
OTHER THAN 8:00 A.M. TO 4:30 P.M., MONDAY THROUGH FRIDAY) WAS ARRANGED
AS PRESCRIBED BY ARTICLE IX, SECTION G. HOWEVER, THE RESULT OF THE NEW
FOUR TOUR ROTATING SHIFT SCHEDULE, THE ARBITRATOR CONCLUDED, WAS TO HAVE
EACH EMPLOYEE WORK ROTATING SHIFTS OVER THE PERIOD OF A MONTH WITH NO
EMPLOYEE WORKING A GIVEN OR PERMANENT SHIFT SECURED BY VIRTUE OF
SENIORITY THROUGH A BIDDING PROCEDURE. THE ACTIVITY HAD ARGUED TO THE
ARBITRATOR THAT THE NEGOTIATED AGREEMENT DID NOT INCLUDE ANY COMMITMENT
THAT SENIORITY WOULD PREVAIL IN STAFFING ALL SHIFT ASSIGNMENTS OR THAT
THE METHOD OF ASSIGNMENT WOULD ALWAYS REMAIN CONSTANT REGARDLESS OF
CHANGES IN STAFFING PATTERNS NEEDED TO MEET OPERATIONAL REQUIREMENTS.
TO THE CONTRARY, HOWEVER, THE ARBITRATOR FOUND THAT THE TERMS OF
ARTICLE IX, SECTION G WERE IN FULL FORCE AND EFFECT WHEN THE ACTIVITY
UNILATERALLY INTRODUCED THE NEW SCHEDULE. HE ALSO FOUND THAT THOSE
TERMS DEALT EXPLICITLY WITH THE MANNER THE ACTIVITY AGREED TO FOLLOW IN
IMPLEMENTING THE ASSIGNMENT OF INDIVIDUALS TO TOURS OF DUTY-- "A
LEGITIMATE, NEGOTIABLE CLAUSE UNDER THE ORDER." HE NOTED THAT THE
ACTIVITY IN ITS DISCRETION MAY DETERMINE THE NUMBER OF TOURS OF DUTY,
THE DURATION OF SHIFTS, AND THE POSITIONS OR GRADES REPRESENTED ON EACH
TOUR. HE CONCLUDED, HOWEVER, THAT THE WAY OR MANNER IN WHICH EMPLOYEES
ARE ASSIGNED TO A TOUR OF DUTY IS NEGOTIABLE, WAS NEGOTIATED, AND
APPEARS AS ARTICLE IX, SECTION G OF THE NEGOTIATED AGREEMENT. THUS, THE
ARBITRATOR DETERMINED THAT DURING THE TERM OF THE AGREEMENT, THE
ACTIVITY COULD NOT UNILATERALLY EFFECT ANY CHANGES WHICH VIOLATED THAT
AGREED METHOD OF STAFFING ANY TOUR OF DUTY PROGRAM, NEW OR OLD.
ACCORDINGLY, IN HIS AWARD THE ARBITRATOR HELD:
ARTICLE IX, SECTION G OF THE AGREEMENT IS BEING VIOLATED BY THE
EMPLOYER'S ACTIONS OF
SEPTEMBER 25, 1977, WHEN IT IMPLEMENTED THE FOUR TOUR ROTATING SHIFT
PROGRAM.
THE AGENCY REQUESTS THAT THE COUNCIL ACCEPT ITS PETITION FOR REVIEW
OF THE ARBITRATOR'S AWARD BASED UPON THE EXCEPTIONS DISCUSSED BELOW.
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."
IN ITS FIRST EXCEPTION TO THE AWARD, THE AGENCY CONTENDS THAT THE
AWARD VIOLATES SECTION 12(B)(5) OF THE ORDER. /2/ IN SUPPORT OF THIS
EXCEPTION, THE AGENCY NOTES THAT PURSUANT TO SECTION 12(B)(5) THERE IS
EXPRESSLY RESERVED TO MANAGEMENT THE RIGHT TO DETERMINE THE PERSONNEL BY
WHICH THE AGENCY'S OPERATIONS ARE TO BE CONDUCTED. THUS, THE AGENCY
ASSERTS THAT THE AWARD, WHICH BARS MANAGEMENT FROM ESTABLISHING AND
IMPLEMENTING THE TEAM CONCEPT, AND REQUIRES IT TO REVERT TO THE EARLIER
STAFFING PATTERN, IS A CLEAR INFRINGEMENT ON THE EXERCISE OF
MANAGEMENT'S 12(B)(5) RIGHT.
ALTHOUGH 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 THE
ORDER, THE COUNCIL IS OF THE OPINION THAT THE AGENCY'S PETITION IN THIS
CASE DOES NOT CONTAIN A DESCRIPTION OF FACTS AND CIRCUMSTANCES TO
SUPPORT ITS EXCEPTION THAT THE AWARD VIOLATES SECTION 12(B)(5) OF THE
ORDER. IN RESOLVING THE STIPULATED ISSUE SUBMITTED BY THE PARTIES OF
WHETHER THE ACTIVITY'S IMPLEMENTATION OF ROTATING TOURS OF DUTY VIOLATED
THE NEGOTIATED AGREEMENT, THE ARBITRATOR FOUND A VIOLATION OF THE
AGREEMENT ON THE BASIS OF HIS DETERMINATION THAT "THE WAY OR MANNER
INDIVIDUALS ARE ASSIGNED TO A TOUR IS NEGOTIABLE, WAS NEGOTIATED AND
APPEARS AS ARTICLE IX, SECTION G OF THE AGREEMENT." IN THE COUNCIL'S
OPINION THE AGENCY HAS FAILED TO PRESENT FACTS AND CIRCUMSTANCES TO
DEMONSTRATE IN WHAT MANNER THE ARBITRATOR'S AWARD THE "ARTICLE IX,
SECTION G OF THE AGREEMENT IS BEING VIOLATED" BY THE ACTIVITY'S
IMPLEMENTATION OF THE ROTATING SHIFT PROGRAM INFRINGES UPON ANY RIGHT
RESERVED TO MANAGEMENT BY SECTION 12(B)(5) OF THE ORDER.
IN THIS REGARD THE COUNCIL HAS PREVIOUSLY HELD THAT NEGOTIATED
AGREEMENT PROVISIONS WHICH ESTABLISH SPECIFIC PROCEDURES AND CRITERIA TO
BE APPLIED BY MANAGEMENT IN SELECTING INDIVIDUAL PERSONNEL FOR
ASSIGNMENT TO PARTICULAR SHIFTS AND TOURS OF DUTY DO NOT INFRINGE ON AN
AGENCY'S RIGHT TO ESTABLISH EITHER THE "METHODS," "MEANS," OR
"PERSONNEL" BY WHICH ITS OPERATIONS ARE TO BE CONDUCTED WITHIN THE
RECOGNIZED MEANING OF THOSE TERMS AS USED IN SECTION 12(B)(5) OF THE
ORDER. MOREOVER, THE COUNCIL HAS FURTHER CONSISTENTLY HELD THAT THE
ORDER NEITHER BARS THE NEGOTIATION OF, NOR EXCEPTS FROM THE AGENCY'S
OBLIGATION TO NEGOTIATE, MATTERS RELATED SOLELY TO PROCEDURES, INCLUDING
CRITERIA SUCH AS SENIORITY, FOR THE SELECTION OF INDIVIDUAL PERSONNEL TO
BE ASSIGNED TO PARTICULAR SHIFTS OR TOURS OF DUTY. /3/ AS THE COUNCIL
HAS FURTHER HELD, WHEN SUCH PROCEDURES ARE NEGOTIATED, AND WHEN THEY
OTHERWISE CONFORM TO LAW, REGULATION AND THE ORDER, THEY MAY BE ENFORCED
THROUGH THE ARBITRAL PROCESS. /4/ THE AGENCY PRESENTS NO FACTS AND
CIRCUMSTANCES IN ITS PETITION TO DEMONSTRATE THAT THE ARBITRATOR'S AWARD
IN THIS CASE, FINDING THAT THE AGENCY HAD VIOLATED A NEGOTIATED
AGREEMENT PROVISION WHICH THE AGENCY ITSELF CHARACTERIZES AS DEALING
WITH THE "ARRANGEMENT OF ASSIGNING EMPLOYEES ON A SENIORITY BASIS TO
TOURS OF DUTY WHICH THEY HAVE REQUESTED," VIOLATES ANY RIGHTS RESERVED
TO MANAGEMENT UNDER SECTION 12(B)(5) OF THE ORDER.
FURTHER, THE AGENCY PRESENTS NO FACTS AND CIRCUMSTANCES TO SUPPORT
ITS ASSERTIONS THAT THE AWARD BARS "MANAGEMENT FROM IMPLEMENTING THE
TEAM CONCEPT, AND REQUIRES IT TO REVERT TO THE EARLIER PATTERN." ON ITS
FACE THE AWARD ONLY STATES THAT "ARTICLE XI, SECTION G OF THE AGREEMENT
IS BEING VIOLATED . . . WHEN (THE ACTIVITY) IMPLEMENTED THE FOUR TOUR
ROTATING SHIFT PROGRAM," IN EFFECT APPARENTLY DIRECTING THE ACTIVITY TO
COMPLY WITH THE PROCEDURES FOR SELECTING INDIVIDUAL PERSONNEL FOR
ASSIGNMENT TO PARTICULAR TOURS OF DUTY, "NEW OR OLD," TO WHICH IT HAD
AGREED IN THE COLLECTIVE BARGAINING PROCESS. WHILE THE AWARD FINDS THE
INSTITUTION OF ROTATING SHIFTS TO BE IN VIOLATION OF THE AGREEMENT,
NOWHERE DOES IT APPEAR THAT THE AWARD PROHIBITS THE INSTITUTION OF THE
TEAM CONCEPT ENCOMPASSING POSITIONS REPRESENTING A SKILLS MIX AS
DETERMINED BY MANAGEMENT. THUS, IT DOES NOT APPEAR THAT THE ARBITRATOR
ORDERED A RESTORATION OF THE STATUS QUO ANTE, NOR DOES THE AGENCY
PRESENT FACTS AND CIRCUMSTANCES WHICH DEMONSTRATE WHY SUCH AN ORDER MUST
BE INFERRED FOR IT TO COMPLY WITH THE AGREEMENT PROVISION FOUND TO HAVE
BEEN VIOLATED. ACCORDINGLY, THE AGENCY'S FIRST EXCEPTION PROVIDES NO
BASIS FOR ACCEPTANCE OF ITS PETITION UNDER THE COUNCIL'S RULES OF
PROCEDURE.
IN ITS SECOND EXCEPTION TO THE AWARD, THE AGENCY CONTENDS THAT THE
AWARD VIOLATES SECTION 12(B)(4) OF THE ORDER. /5/ IN SUPPORT OF THIS
EXCEPTION, THE AGENCY NOTES THAT SECTION 12(B)(4) GRANTS IT THE RIGHT TO
MAINTAIN THE EFFICIENCY OF GOVERNMENT OPERATIONS AND ASSERTS THAT ITS
DETERMINATION TO INSTITUTE THE NEW STAFFING PATTERN WAS BASED SOLELY ON
CONSIDERATIONS OF EFFICIENCY. THUS, THE AGENCY ASSERTS THAT THE AWARD
MUST BE SET ASIDE AS VIOLATIVE OF SECTION 12(B)(4) OF THE ORDER.
ALTHOUGH 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 THE
ORDER, THE COUNCIL IS OF THE OPINION THAT THE AGENCY'S PETITION DOES NOT
CONTAIN A DESCRIPTION OF FACTS AND CIRCUMSTANCES NECESSARY TO SUPPORT
ITS EXCEPTION THAT THE AWARD VIOLATES SECTION 12(B)(4). IN THIS REGARD,
THE AGENCY'S PETITION FAILS TO PRESENT FACTS AND CIRCUMSTANCES TO
DEMONSTRATE THAT THE ARBITRATOR'S AWARD REQUIRES THE AGENCY TO TAKE ANY
ACTION FROM WHICH "INCREASED COSTS OR REDUCED EFFECTIVENESS IN
OPERATIONS ARE INESCAPABLE AND SIGNIFICANT AND ARE NOT OFFSET BY
COMPENSATING BENEFITS." SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 3488 AND FEDERAL DEPOSIT INSURANCE CORPORATION, NEW YORK REGION,
FLRC NO. 77A-76 (MAR. 13, 1978), REPORT NO. 147 AT 5-6 OF THE COUNCIL'S
DECISION; LOCAL UNION 2219, INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, AFL-CIO AND DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS, LITTLE
ROCK DISTRICT, LITTLE ROCK, ARK., 1 FLRC 219, 225 (FLRC NO. 71A-46 (NOV.
20, 1972), REPORT NO. 30). MOREOVER, TO THE EXTENT THAT THE AGENCY'S
CONTENTIONS ARE PREMISED UPON A BELIEF THAT THE AWARD WOULD PREVENT IT
FROM IMPLEMENTING THE TEAM CONCEPT, AS PREVIOUSLY INDICATED NOTHING IN
THE ARBITRATOR'S AWARD ORDERS A RESTORATION OF THE STATUS QUO ANTE.
ACCORDINGLY, THE AGENCY'S SECOND EXCEPTION PROVIDES NO BASIS FOR
ACCEPTANCE OF ITS PETITION UNDER THE COUNCIL'S RULES OF PROCEDURE.
ACCORDINGLY, THE AGENCY'S PETITION FOR REVIEW IS DENIED BECAUSE IT
FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS SET FORTH IN SECTION
2411.32 OF THE COUNCIL'S RULES OF PROCEDURE. LIKEWISE, THE AGENCY'S
REQUEST FOR A STAY OF THE AWARD IS DENIED.
BY THE COUNCIL.
SINCERELY,
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
CC: F. X. HELGESEN
AFGE
/1/ ACCORDING TO THE ARBITRATOR'S AWARD, ARTICLE IX PERTAINS TO HOURS
OF WORK AND SECTION G PROVIDES:
TOURS OF DUTY OTHER THAN THE NORMAL TOUR DEFINED IN SECTION A WILL BE
ASSIGNED TO EMPLOYEES
OF THE APPROPRIATE SECTION OR UNIT IN THE FOLLOWING MANNER:
FIRST: BY QUALIFIED EMPLOYEES WHO HAVE VOLUNTEERED IN WRITING AND
ARE SELECTED FOR THE
SPECIFIC TOUR OF DUTY. IF THERE IS AN EXCESS OF VOLUNTEERS FOR A
PARTICULAR TOUR, SENIORITY
(BASED ON SERVICE COMPUTATION DATA) WILL GOVERN. VOLUNTEER STATUS
WILL BE BINDING FOR A
MINIMUM OF TWELVE (12) WEEKS.
SECOND: IF INSUFFICIENT VOLUNTEERS ARE RECEIVED, BY EQUITABLE
DISTRIBUTION TO ALL
EMPLOYEES WITHIN THE APPROPRIATE SECTION OR UNIT ON A ROTATING BASIS.
/2/ SECTION 12(B)(5) OF THE ORDER PROVIDES:
(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(.)
/3/ E.G., LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 1056
AND VETERANS ADMINISTRATION HOSPITAL, PROVIDENCE, RHODE ISLAND, 5 FLRC
279, 284-85 (FLRC NO. 75A-113 (APR. 21, 1977), REPORT NO. 124);
NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY, U.S.
CUSTOMS SERVICE, REGION VII, 5 FLRC 249, 257-58 (FLRC NO. 76A-28 (APR.
7, 1977), REPORT NO. 123).
/4/ SEE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO,
LOCAL 640 AND PARKER-DAVIS PROJECT OFFICE, BUREAU OF RECLAMATION, UNITED
STATES DEPARTMENT OF THE INTERIOR (IRWIN, ARBITRATOR), 5 FLRC 562 (FLRC
NO. 76A-44 (JULY 12, 1977), REPORT NO. 130).
/5/ SECTION 12(B)(4) OF THE ORDER PROVIDES:
(B) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN
ACCORDANCE WITH APPLICABLE LAWS
AND REGULATIONS--
(4) TO MAINTAIN THE EFFICIENCY OF THE GOVERNMENT OPERATIONS ENTRUSTED
TO THEM(.)
6 FLRC 1174; FLRC NO. 78A-101; DECEMBER 28, 1978.
DEPARTMENT OF THE ARMY,
ST. LOUIS DISTRICT,
CORPS OF ENGINEERS
AND
INTERNATIONAL UNION OF OPERATING ENGINEERS,
LOCAL 149B (LOCAL 2)
FLRC NO. 78A-101
DECISION ON APPEAL FROM ARBITRATION AWARD
(SYNOPSIS) FLRC NO. 78A-101
DEPARTMENT OF THE ARMY, ST. LOUIS DISTRICT, CORPS OF ENGINEERS AND
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 149B (LOCAL 2)
(BERNSTEIN, ARBITRATOR). THE ARBITRATOR DETERMINED THAT THE SELECTION
FOR A PARTICULAR POSITION WAS MADE IN VIOLATION OF THE PARTIES'
AGREEMENT, AND, AS A REMEDY, DIRECTED THE ACTIVITY TO VACATE THE
POSITION BY A DATE CERTAIN AND RERUN THE PROMOTION ACTION. THE COUNCIL
ACCEPTED THE AGENCY'S PETITION FOR REVIEW INSOFAR AS IT RELATED TO THE
EXCEPTION ALLEGING THAT THE PORTION OF THE AWARD DIRECTING THAT THE
POSITION BE VACATED PRIOR TO RERUNNING THE PROMOTION ACTION VIOLATED
APPROPRIATE REGULATION, NAMELY, THE FEDERAL PERSONNEL MANUAL. THE
COUNCIL ALSO GRANTED THE AGENCY'S REQUEST FOR A STAY.
COUNCIL ACTION (DECEMBER 28, 1978). THE COUNCIL HELD THAT THE
PORTION OF THE AWARD DIRECTING THE AGENCY TO VACATE THE POSITION PRIOR
TO RERUNNING THE PROMOTION ACTION WAS, IN THE CIRCUMSTANCES OF THE CASE,
VIOLATIVE OF THE FEDERAL PERSONNEL MANUAL. ACCORDINGLY, PURSUANT TO
SECTION 2411.37(B) OF ITS RULES OF PROCEDURE, THE COUNCIL MODIFIED THE
ARBITRATOR'S AWARD BY STRIKING THE PORTION THEREOF FOUND VIOLATIVE OF
THE FEDERAL PERSONNEL MANUAL, AND, AS SO MODIFIED, SUSTAINED THE AWARD
AND VACATED THE STAY.
BACKGROUND OF CASE
INSOFAR AS IS PERTINENT HEREIN, THE FACTS IN THIS CASE AS SET FORTH
IN THE ARBITRATOR'S AWARD ARE AS FOLLOWS: THIS MATTER CONCERNED THE
FILLING OF AN ANNOUNCED VACANCY FOR THE POSITION OF HEAD LOCK OPERATOR
AT LOCKS 27, ST. LOUIS DISTRICT, ARMY CORPS OF ENGINEERS. FOUR
APPLICANTS HAD BEEN RATED AS "BEST QUALIFIED" FOR THE POSITION,
INCLUDING THE GRIEVANT AND THE EMPLOYEE EVENTUALLY SELECTED. AFTER THE
SELECTION WAS MADE AND ANNOUNCED, THE GRIEVANT FILED A GRIEVANCE
CONTENDING THAT HE HAD NOT BEEN INTERVIEWED BY THE LOCKMASTER PRIOR TO
THE SELECTION AS REQUIRED UNDER THE TERMS OF THE ACTIVITY'S MERIT
PROMOTION PLAN. /1/ THE ACTIVITY THEN ATTEMPTED TO SETTLE THE GRIEVANCE
BY DIRECTING THE LOCKMASTER TO CONDUCT AN INTERVIEW WITH THE GRIEVANT.
AFTER THE INTERVIEW, THE GRIEVANT WAS NOTIFIED THAT "(HIS) INTERVIEW HAD
REVEALED NO NEW INFORMATION AND THAT THE SELECTION OF (THE SELECTED
EMPLOYEE) WOULD STAND." THE GRIEVANT CONTINUED TO PURSUE HIS GRIEVANCE
AND THE MATTER WAS ULTIMATELY SUBMITTED TO ARBITRATION.
THE ARBITRATOR DETERMINED THAT THE ACTIVITY HAD VIOLATED THE
COLLECTIVE BARGAINING AGREEMENT WITH RESPECT TO THE SELECTION INVOLVED
IN THIS CASE. HE FOUND THAT THE LOCKMASTER HAD NOT INTERVIEWED THE
GRIEVANT OR OTHER "BEST QUALIFIED" CANDIDATES PRIOR TO MAKING A
SELECTION. THE ACTIVITY'S ARGUMENT THAT THE POST-SELECTION INTERVIEW
HAD CURED THE VIOLATION WAS REJECTED ON THE GROUND THAT IT WAS AN
"INADEQUATE SUBSTITUTE FOR THE INTERVIEW (THE GRIEVANT) SHOULD HAVE BEEN
AFFORDED."
IN CONSIDERING A REMEDY FOR THE GRIEVANT, THE ARBITRATOR REFUSED TO
AWARD THE POSITION TO THE GRIEVANT. THE ARBITRATOR STATED:
THE DIFFICULTY WITH THAT REMEDY IS THAT THERE IS NO SHOWING THAT THE
GRIEVANT WOULD HAVE
BEEN GIVEN THAT POSITION IN THE FIRST INSTANCE IF THE PROPER
PROCEDURES HAD BEEN
FOLLOWED. THE JOB WAS AWARDED TO (THE SELECTED EMPLOYEE) BECAUSE (1)
ALL CANDIDATES WERE
CONSIDERED EQUALLY CAPABLE WITH REGARD TO NECESSARY SKILLS, AND (2)
(THE SELECTED EMPLOYEE)
HAD SPECIFIC KNOWLEDGE OF LOCKS NO. 27.
THE GRIEVANT DID NOT ALLEGE THAT HE COULD OR WOULD HAVE DISPROVED
EITHER OF THESE POINTS IF
HE HAD BEEN GIVEN AN INTERVIEW BEFORE THE SELECTION WAS MADE.
PERHAPS HE COULD HAVE, BUT IT
IS EQUALLY POSSIBLE THAT HE COULD NOT HAVE. THERE IS NO WAY OF
KNOWING WHICH WAY THE PROCESS
WOULD HAVE LED IF IT HAD BEEN FOLLOWED.
THE ARBITRATOR THEN MADE THE FOLLOWING AWARD:
THEREFORE, THE ARBITRATOR CONCLUDES THAT THE ONLY SUITABLE REMEDY HE
CAN DISCOVER IS TO
DIRECT THE EMPLOYER TO DECLARE THE POSITION OF HEAD LOCK OPERATOR AT
LOCKS NO. 27 CURRENTLY
OCCUPIED BY (THE SELECTED EMPLOYEE) TO BE VACATED AS OF SEPTEMBER 1,
1978 AND TO REQUIRE THAT
THE ORIGINAL APPLICANTS FOR THAT POSITION BE GIVEN PRIORITY
CONSIDERATION FOR THE
POSITION. (THE SELECTED EMPLOYEE) WILL BE ELIGIBLE FOR PRIORITY
CONSIDERATION, BUT NO WEIGHT
MAY BE GIVEN TO THE FACT THAT HE HAS HELD THE POSITION SINCE 1974,
NOR MAY HE DERIVE ANY
PREFERENCE THEREFROM.
AGENCY'S APPEAL TO THE COUNCIL
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 WHICH TOOK EXCEPTION TO THE
AWARD ON THE GROUND THAT, INSOFAR AS IT WOULD REQUIRE THE ACTIVITY TO
VACATE THE POSITION IN ADVANCE OF THE RERUNNING OF THE PROMOTION ACTION,
THE AWARD VIOLATES APPROPRIATE REGULATION, NAMELY THE FEDERAL PERSONNEL
MANUAL. /2/ NEITHER PARTY FILED A BRIEF. /3/
OPINION
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 WHICH TOOK EXCEPTION TO THE AWARD ON THE GROUND THAT THE AWARD,
INSOFAR AS IT DIRECTS THE ACTIVITY TO REMOVE THE SELECTED EMPLOYEE FROM
THE POSITION PRIOR TO RERUNNING THE PROMOTION ACTION, VIOLATES
APPLICABLE CIVIL SERVICE COMMISSION REGULATIONS.
THE COUNCIL HAS PREVIOUSLY SOUGHT AND RECEIVED FROM THE CIVIL SERVICE
COMMISSION INTERPRETATIONS OF APPLICABLE COMMISSION REGULATIONS
PERTAINING TO ARBITRATION AWARDS WHICH, AS HERE, DIRECT AN AGENCY TO
REMOVE AN EMPLOYEE FROM A POSITION PRIOR TO RERUNNING A PROMOTION
ACTION. THE CIVIL SERVICE COMMISSION HAS ADVISED THE COUNCIL, AMONG
OTHER THINGS, THAT:
UNDER COMMISSION POLICY AN ERRONEOUSLY PROMOTED EMPLOYEE MAY BE
RETAINED IN THE POSITION
ONLY "IF THE PROMOTION ACTION CAN BE CORRECTED TO CONFORM ESSENTIALLY
TO ALL COMMISSION AND
AGENCY REQUIREMENTS AS OF THE DATE THE ACTION WAS TAKEN" (FPM CHAPTER
335, 6-4(B)). THE
EMPLOYEE SHOULD NOT BE REMOVED FROM THE POSITION IN ADVANCE OF THE
CORRECTIVE ACTION (IN THIS
CASE THE RERUNNING OF THE PROMOTION), HOWEVER, UNLESS IT HAS BEEN
DETERMINED BY AN ARBITRATOR
OR OTHER COMPETENT AUTHORITY THAT HE COULD NOT PROPERLY HAVE BEEN
CONSIDERED FOR THE POSITION
IN THE FIRST PLACE AND HENCE, SHOULD NOT BE ALLOWED TO COMPETE IN THE
SECOND ROUND. IN THE
ABSENCE OF SUCH A DETERMINATION, NO ACTION SHOULD BE TAKEN WITH
REGARD TO THE EMPLOYEE PENDING
THE OUTCOME OF THE RECONSTRUCTED PROMOTION. /4/
IN THE INSTANT CASE, HOWEVER, THERE HAS BEEN NO FINDING BY THE
ARBITRATOR THAT THE EMPLOYEE ORIGINALLY SELECTED COULD NOT PROPERLY HAVE
BEEN CONSIDERED IN THE FIRST PLACE, AND THUS SHOULD NOT BE ALLOWED TO
COMPETE IN THE SECOND ROUND. IN FACT, THE ARBITRATOR APPARENTLY REACHED
JUST THE OPPOSITE CONCLUSION. THUS, THE ARBITRATOR SPECIFICALLY FOUND
THAT "ALL" OF THE ORIGINAL CANDIDATES WERE EQUALLY CAPABLE AND THAT THE
SELECTED EMPLOYEE HAD SPECIFIC KNOWLEDGE OF LOCKS NO. 27. FURTHER, THE
ARBITRATOR'S AWARD SPECIFICALLY STATES THAT THE SELECTED EMPLOYEE IS TO
BE GIVEN PRIORITY CONSIDERATION ALONG WITH THE NONSELECTED CANDIDATES IN
THE RERUNNING OF THE PROMOTION.
ACCORDINGLY, WE CONCLUDE THAT THE PORTION OF THE ARBITRATOR'S AWARD
WHICH DIRECTS THE AGENCY TO VACATE THE POSITION PRIOR TO RERUNNING THE
PROMOTION ACTION IS, UNDER THE CIRCUMSTANCES OF THIS CASE, VIOLATIVE OF
THE FEDERAL PERSONNEL MANUAL AND CANNOT BE SUSTAINED.
CONCLUSION
FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2411.37(B) OF THE
COUNCIL'S RULES OF PROCEDURE, WE MODIFY THE ARBITRATOR'S AWARD BY
STRIKING THAT PORTION WHICH DIRECTS THE ACTIVITY TO VACATE THE POSITION
IN ADVANCE OF RERUNNING THE PROMOTION ACTION.
AS SO MODIFIED, THE AWARD IS SUSTAINED AND THE STAY OF THE AWARD IS
VACATED.
BY THE COUNCIL.
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
ISSUED: DECEMBER 28, 1978
/1/ ACCORDING TO THE ARBITRATOR'S AWARD, THE APPLICABLE PROVISION OF
THE MERIT PROMOTION AND INTERNAL PLACEMENT PLAN READS AS FOLLOWS:
THE IMMEDIATE SUPERVISOR OF THE POSITION TO BE FILLED NORMALLY WILL
MAKE THE SELECTION
DECISION. INTERVIEWING OF ALL "BEST QUALIFIED" CANDIDATES FOR
SELECTION PURPOSES, INCLUDING
OUTSIDE CANDIDATES WITHIN COMMUTING DISTANCE, WILL BE MANDATORY WITH
SUPERVISOR . . .
/2/ THE AGENCY REQUESTED AND THE COUNCIL GRANTED, PURSUANT TO SECTION
2411.47(F) OF THE COUNCIL'S RULES OF PROCEDURE, A STAY OF THE AWARD
PENDING THE DETERMINATION OF THE APPEAL.
/3/ AFTER ACCEPTANCE OF THE PETITION FOR REVIEW, THE UNION NOTIFIED
THE COUNCIL THAT IT NO LONGER REPRESENTS THE BARGAINING UNIT. IN VIEW
OF OUR DISPOSITION OF THIS APPEAL, THIS FACT IS WITHOUT CONTROLLING
SIGNIFICANCE.
/4/ DEFENSE MAPPING AGENCY, HYDROGRAPHIC CENTER, DEPARTMENT OF
DEFENSE AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (ABLES,
ARBITRATOR), 4 FLRC 289 AT 294-5 (FLRC NO. 75A-33 (APR. 27, 1976),
REPORT NO. 104).
6 FLRC 1168; FLRC NO. 78A-87; DECEMBER 28, 1978.
MARINE CORPS AIR STATION
CHERRY POINT, NORTH CAROLINA
AND
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS,
AFL-CIO, LOCAL LODGE NO. 2296
FLRC NO. 78A-87
DECISION ON APPEAL FROM ARBITRATION AWARD
(SYNOPSIS) FLRC NO. 78A-87
MARINE CORPS AIR STATION, CHERRY POINT, NORTH CAROLINA AND
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO,
LOCAL LODGE NO. 2296 (CARSON, ARBITRATOR). ON A GRIEVANCE ARISING FROM
THE UNION'S LONG-STANDING DISSATISFACTION WITH VARIOUS MANAGEMENT
PERSONNEL ASSIGNMENTS TO THE POSITION OF OUTSIDE BOILER PLANT OPERATOR,
THE ARBITRATOR, AS PART OF HIS AWARD, RULED THAT SUCH ASSIGNMENTS COULD
BE MADE FROM WITHIN THE BOILER PLANT OPERATOR TRADE, "BUT NOT FROM
INDIVIDUALS IN OTHER TRADES." THE COUNCIL ACCEPTED THE AGENCY'S PETITION
FOR REVIEW WHICH EXCEPTED TO THAT PART (PART 3) OF THE ARBITRATOR'S
AWARD ON THE GROUND THAT IT VIOLATED SECTION 12(B)(5) OF THE ORDER. THE
COUNCIL ALSO GRANTED THE AGENCY'S REQUEST FOR A STAY. (REPORT NO. 160)
COUNCIL ACTION (DECEMBER 28, 1978). THE COUNCIL HELD THAT THE
PORTION OF PART 3 OF THE AWARD LIMITING MANAGEMENT'S USE OF "INDIVIDUALS
IN OTHER TRADES" TO CONDUCT OUTSIDE BOILER PLANT OPERATIONS VIOLATED
SECTION 12(B)(5) OF THE ORDER. ACCORDINGLY, PURSUANT TO SECTION
2411.37(B) OF ITS RULES OF PROCEDURE, THE COUNCIL MODIFIED PART 3 OF THE
ARBITRATOR'S AWARD CONSISTENT WITH ITS HOLDING. AS SO MODIFIED, THE
COUNCIL SUSTAINED THE AWARD AND VACATED THE STAY WHICH IT HAD PREVIOUSLY
GRANTED.
BACKGROUND OF CASE
BASED UPON THE FINDINGS OF THE ARBITRATOR AND THE RECORD BEFORE THE
COUNCIL, IT APPEARS THAT THE MARINE CORPS AIR STATION, CHERRY POINT,
NORTH CAROLINA (ACTIVITY) HAD A NUMBER OF "OUTSIDE" BOILERS WHICH WERE
GENERALLY MAINTAINED BY WG-9 BOILER PLANT OPERATORS. ON JUNE 13, 1977,
AN OUTSIDE BOILER PLANT OPERATOR WAS UNABLE TO REPORT TO WORK AND HIS
PLACE WAS TAKEN BY A WG-7 OPERATOR WHO WAS A REGULARLY ASSIGNED MEMBER
OF THE RELIEF CREW. THIS ACTION RESULTED IN A GRIEVANCE BEING FILED
ALLEGING VIOLATIONS OF SEVERAL PROVISIONS OF THE PARTIES' NEGOTIATED
AGREEMENT. /1/ THE GRIEVANCE WAS NOT RESOLVED AND IT WAS ULTIMATELY
SUBMITTED TO THE ARBITRATOR. IT APPEARS THAT THE SPECIFIC GRIEVANCE
WHICH WAS PROCESSED TO ARBITRATION SERVED TO EXPRESS THE UNION'S
LONG-STANDING DISSATISFACTION WITH VARIOUS MANAGEMENT PERSONNEL
ASSIGNMENTS, TO THE OUTSIDE BOILER PLANT POSITION AND THUS THE
ARBITRATION CONCERNED, APPARENTLY WITHOUT OBJECTION, MATTERS BEYOND THE
CONFINES OF THE GRIEVANCE.
IN PARTICULAR, THE UNION NOTED THAT ON OCCASION, MANAGEMENT ASSIGNED
AN ELECTRICIAN TO FILL IN FOR AN ABSENT OUTSIDE BOILER PLANT OPERATOR ON
THE WORK SHIFT BEGINNING AT 8:00 A.M.
THUS, AS THE PARTIES DID NOT RESTRICT THE SCOPE OF THE ARBITRATION,
THE FOLLOWING ISSUES, ACCORDING TO THE ARBITRATOR, EMERGED DURING THE
ARBITRATION HEARING:
1. WAS THE ASSIGNMENT OF A RELIEF CREW MEMBER TO THE 0800-1600
WATCH, WITH LESS THAN 72
HOURS NOTICE, MADE IN ORDER TO AVOID THE PAYMENT OF OVERTIME?
2. DID THE ASSIGNMENT OF A RELIEF CREW MEMBER TO THE 0800-1600 WATCH
CONSTITUTE A CHANGE
OF SCHEDULE OR WORK WEEK WITHOUT 72 HOURS NOTICE?
3. MUST AN ASSIGNMENT TO REPLACE AN OUTSIDE BOILER OPERATOR BE MADE
FROM WITHIN THE SAME
TRADE GROUP AND FROM THE SAME RATING LEVEL?
IN RESPONDING TO THESE ISSUES, THE ARBITRATOR ISSUED A THREE-PART
AWARD (ONLY THE THIRD PART OF WHICH IS AT ISSUE HEREIN) WHICH PROVIDED:
1. ASSIGNMENTS OF RELIEF OPERATORS TO COVER FOR ABSENT OUTSIDE
BOILER PLANT OPERATOR WG-9
ON THE DAY WATCH HAVE NOT BEEN MADE TO AVOID OVERTIME.
2. THE ASSIGNMENT OF AN INDIVIDUAL NORMALLY SCHEDULED TO WORK FROM
0730 TO 1615 TO WORK A
SHIFT FROM 0800 TO 1600 DOES NOT CONSTITUTE A SIGNIFICANT CHANGE OF
SCHEDULE WITHIN THE
MEANING OF THE CONTRACT.
3. ASSIGNMENTS TO COVER FOR THE OUTSIDE BOILER OPERATOR WG-9 MAY BE
MADE FROM WITHIN THE
BOILER PLANT OPERATOR TRADE, BUT NOT FROM INDIVIDUALS IN OTHER
TRADES.
AGENCY'S APPEAL TO THE COUNCIL
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 WHICH EXCEPTED TO THE
ARBITRATOR'S AWARD ON THE GROUND THAT PART 3 OF THE AWARD VIOLATES
SECTION 12(B)(5) OF THE ORDER. /2/
OPINION
SECTION 2411.37(A) OF THE COUNCIL'S RULES OF PROCEDURE PROVIDES:
(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 WHICH EXCEPTED TO THE ARBITRATOR'S AWARD ON THE GROUND THAT PART
3 OF THE AWARD VIOLATES SECTION 12(B)(5) OF THE ORDER. /3/ PART 3 OF
THE AWARD, AS SET FORTH ABOVE, PROVIDES THAT "(A)SSIGNMENTS TO COVER FOR
THE OUTSIDE BOILER OPERATOR WG-9 MAY BE MADE FROM WITHIN THE BOILER
PLANT OPERATOR TRADE, BUT NOT FROM INDIVIDUALS IN OTHER TRADES." IN THE
AGENCY'S VIEW, THE PORTION OF THE AWARD STATING "BUT NOT FROM
INDIVIDUALS IN OTHER TRADES" RESTRICTS THE ACTIVITY'S 12(B)(5) RIGHT TO
DETERMINE WHICH PERSONNEL WILL CONDUCT ITS OPERATIONS, THUS, IN THIS
INSTANCE, LIMITING THE ACTIVITY "TO THE USE OF ONE OCCUPATION AMONG THE
TOTAL PERSONNEL ENGAGED IN THE OPERATION IN QUESTION."
IN THE COUNCIL'S OPINION, THE DISPOSITION OF THE ISSUE IN THIS CASE
IS CONTROLLED BY THE COUNCIL'S DECISION IN TIDEWATER. /4/ IN TIDEWATER,
THE COUNCIL POINTED OUT THAT, UNDER SECTION 12(B)(5), THE "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). IN SHORT, PERSONNEL
MEANS WHO WILL CONDUCT AGENCY OPERATIONS.
THE COUNCIL HAS CONSISTENTLY HELD THAT RIGHTS RESERVED TO MANAGEMENT
UNDER SECTION 12(B) OF THE ORDER MAY NOT BE INFRINGED BY AN ARBITRATOR'S
AWARD UNDER A NEGOTIATION AGREEMENT. /5/ IT IS MANIFEST IN THE
CIRCUMSTANCES OF THE INSTANT CASE THAT THE PROVISION OF THE PARTIES'
NEGOTIATED AGREEMENT (QUOTED IN NOTE 1, SUPRA) ON WHICH THE ARBITRATOR
RELIED IN FASHIONING HIS AWARD IS A WORK PRESERVATION CLAUSE. THE
COUNCIL HAS CONSISTENTLY HELD THAT SUCH WORK PRESERVATION PROVISIONS
VIOLATE SECTION 12(B)(5) OF THE ORDER. /6/ THUS, THE ARBITRATOR'S AWARD
HEREIN ENFORCING THIS CONTRACT PROVISION BY LIMITING MANAGEMENT IN THE
EXERCISE OF ITS RIGHT TO DETERMINE WHICH PERSONNEL WILL CONDUCT AGENCY
OPERATIONS, I.E., IN THE CIRCUMSTANCES OF THIS CASE LIMITING
MANAGEMENT'S RIGHT TO USE PERSONNEL IN "OTHER TRADES" TO CONDUCT
"OUTSIDE" BOILER PLANT OPERATIONS, LIKEWISE VIOLATES SECTION 12(B)(5) OF
THE ORDER. WERE THE ACTIVITY TO BE SO LIMITED, IT WOULD BE DEPRIVED OF
ITS 12(B)(5) RIGHT TO DETERMINE THE "PERSONNEL" TO CONDUCT ITS
OPERATIONS. THUS, THE DISPUTED PORTION OF THE AWARD VIOLATES SECTION
12(B)(5) OF THE ORDER.
CONCLUSION
FOR THE FOREGOING REASONS, WE FIND THAT THE PORTION OF PART 3 OF THE
AWARD WHICH STATES "BUT NOT FROM INDIVIDUALS IN OTHER TRADES" VIOLATES
SECTION 12(B)(5) OF THE ORDER. ACCORDINGLY, PURSUANT TO SECTION
2411.37(B) OF THE COUNCIL'S RULES OF PROCEDURE, WE HEREBY MODIFY PART 3
OF THE AWARD TO PROVIDE IN ITS ENTIRETY, AS FOLLOWS: "ASSIGNMENTS TO
COVER FOR THE OUTSIDE BOILER OPERATOR WG-9 MAY BE MADE FROM WITHIN, BUT
NOT LIMITED TO, THE BOILER PLANT OPERATOR TRADE." AS SO MODIFIED, PART 3
OF THE AWARD IS SUSTAINED AND THE STAY IS VACATED.
BY THE COUNCIL.
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
ISSUED: DECEMBER 28, 1978
/1/ THE PROVISION OF THE PARTIES' NEGOTIATED AGREEMENT WHICH IS
PERTINENT TO THE AGENCY'S APPEAL TO THE COUNCIL IS ARTICLE XVIII,
SECTION 6, ENTITLED, "CHANGES IN JOB DESCRIPTIONS AND REQUIREMENTS." IT
PROVIDES IN RELEVANT PART:
SECTION 6. THE EMPLOYER AGREES TO ASSIGN WORK WITHIN THE PROPER
RATING JURISDICTION OF
RESPECTIVE EMPLOYEES WITHIN THE UNIT, AS DEFINED BY ESTABLISHED NAVY
RATING
GUIDES. EXCEPTIONS TO THE ABOVE POLICY WILL BE MADE UNDER THE
FOLLOWING CIRCUMSTANCES:
(A) LACK OF WORKLOAD FOR EMPLOYEES IN THEIR RESPECTIVE RATING AND
EMPLOYEES WHO DO NOT WANT
TO TAKE ANNUAL LEAVE.
(B) TO MEET A SHORT TERM WORK SITUATION OF THE EMPLOYER WHERE IT IS
IMPOSSIBLE TO ASSIGN
SUCH WORK TO EMPLOYEES IN THE PROPER RATING.
(C) TO OCCASIONALLY PERFORM MISCELLANEOUS DUTIES INCIDENTAL TO THE
JOB REQUIREMENT NOT
COVERED IN THE JOB DESCRIPTION.
/2/ PURSUANT TO SECTION 2411.47(F) OF THE COUNCIL'S RULES OF
PROCEDURE, THE COUNCIL ALSO STAYED PART 3 OF THE ARBITRATOR'S AWARD.
/3/ SECTION 12(B)(5) OF THE ORDER 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--
. . . .
(5) TO DETERMINE THE METHODS, MEANS, AND PERSONNEL BY WHICH SUCH
OPERATIONS ARE TO BE
CONDUCTED(.)
/4/ TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL AND
NAVAL PUBLIC WORKS CENTER, NORFOLK, VIRGINIA, 1 FLRC 431, 437 (FLRC NO.
71A-56 (JUNE 29, 1973), REPORT NO. 41); SEE ALSO, FEDERAL AVIATION
ADMINISTRATION AND PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION
(SABELLA, ARBITRATOR), FLRC NO. 77A-101 (OCT. 4, 1978), REPORT NO. 156;
AND U.S. IMMIGRATION AND NATURALIZATION SERVICE, BURLINGTON, VERMONT AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL NO. 2538, AFL-CIO
(PURCELL, ARBITRATOR), 5 FLRC 625 (FLRC NO. 76A-131 (JULY 13, 1977),
REPORT NO. 131).
/5/ E.G., NATIONAL COUNCIL OF OEO LOCALS, AFGE, AFL-CIO AND OFFICE OF
ECONOMIC OPPORTUNITY (HARKLESS, ARBITRATOR), 2 FLRC 293 (FLRC NO. 73A-67
(DEC. 6, 1974), REPORT NO. 61).
/6/ TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL AND
NAVAL PUBLIC WORKS CENTER, NORFOLK, VIRGINIA, 1 FLRC 431 (FLRC NO.
71A-56 (JUNE 29, 1973), REPORT NO. 41); SEE ALSO FEDERAL EMPLOYEES
METAL TRADES COUNCIL OF CHARLESTON, AFL-CIO AND CHARLESTON NAVAL
SHIPYARD, CHARLESTON, SOUTH CAROLINA, 1 FLRC 444 (FLRC NO. 72A-33 (JUNE
29, 1973), REPORT NO. 41); AND NAGE, LOCAL R12-58 AND MCCLELLAN AIR
FORCE BASE, 4 FLRC 523 (FLRC NO. 75A-90 (OCT. 22, 1976), REPORT NO.
114).
6 FLRC 1164; FLRC NO. 78A-83; DECEMBER 28, 1978.
(SYNOPSIS) FLRC NO. 78A-83
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 12 AND DEPARTMENT
OF LABOR, LABOR-MANAGEMENT SERVICES ADMINISTRATION. THE DISPUTE,
INVOLVING THE NEGOTIABILITY OF PROPOSALS RELATING TO A TRANSFER OF
OFFICE SPACE AND CONTAINING CERTAIN "NEW MATTERS" ALLEGEDLY UNRELATED TO
THE PARTICULAR SPACE RECONSTRUCTION BEING UNDERTAKEN BY THE AGENCY,
RAISED QUESTIONS AS TO WHETHER THE AGENCY WAS OBLIGATED TO BARGAIN WITH
THE UNION IN THE CIRCUMSTANCES OF THE CASE AND, IF SO, WHETHER THE
AGENCY HAD MET THAT OBLIGATION.
COUNCIL ACTION /1/ (DECEMBER 28, 1978). THE COUNCIL HELD THAT THE
UNION'S PETITION FOR REVIEW OF NEGOTIABILITY ISSUES WAS PREMATURELY
FILED AND FAILED TO MEET THE CONDITIONS FOR REVIEW PRESCRIBED BY SECTION
11(C)(4) OF THE ORDER AND SECTION 2411.22 OF THE COUNCIL'S RULES OF
PROCEDURE; THAT IS, THE UNION'S APPEAL PRESENTED UNFAIR LABOR PRACTICE
QUESTIONS WHICH SHOULD FIRST BE RESOLVED UNDER THE PROCEDURES OF THE
VICE CHAIRMAN OF THE CIVIL SERVICE COMMISSION. ACCORDINGLY, THE COUNCIL
DENIED THE UNION'S PETITION FOR REVIEW.
DECEMBER 28, 1978
MR. JEFFREY D. SALZMAN
3RD VICE PRESIDENT
LOCAL 12, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO
P.O. BOX 865
WASHINGTON, D.C. 20044
RE: AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 12 AND DEPARTMENT
OF LABOR, LABOR-MANAGEMENT SERVICES
ADMINISTRATION, FLRC NO. 78A-83
DEAR MR. SALZMAN:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW, AND
THE AGENCY'S STATEMENT OF POSITION, IN THE ABOVE-ENTITLED CASE. FOR THE
REASONS INDICATED BELOW, THE COUNCIL HAS DETERMINED THAT YOUR APPEAL
MUST BE DENIED.
THE BASIC FACTS, AS SET FORTH IN THE RECORD, ARE AS FOLLOWS: DURING
THE TERM OF AN AGREEMENT BETWEEN THE DEPARTMENT OF LABOR (DOL) AND THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 12 (THE UNION), DOL
NOTIFIED THE UNION OF A PROPOSED TRANSFER OF OFFICE SPACE INVOLVING THE
LABOR-MANAGEMENT SERVICES ADMINISTRATION (LMSA) AND REQUESTED
CONSULTATION REGARDING THE IMPACT OF THIS DECISION ON THE EMPLOYEES
AFFECTED. SUBSEQUENTLY, LMSA SUPPLIED THE UNION WITH RENOVATION AND
LAYOUT DRAWINGS, AS WELL AS A TENTATIVE RENOVATION AND OFFICE MOVE
SEQUENCE, AND THE UNION SUBMITTED PROPOSALS WHICH LMSA INDICATED WERE
NONNEGOTIABLE. DURING THIS PERIOD, AT THE REQUEST OF THE UNION,
CONSTRUCTION OF THE PROPOSED OFFICES, WHICH HAD ALREADY BEGUN, WAS
HALTED TO PERMIT CONSULTATION BETWEEN THE PARTIES. HOWEVER, THE
CONSTRUCTION WAS SUBSEQUENTLY RESUMED AND, ACCORDING TO THE UNION'S
UNCONTRADICTED ASSERTION, WAS SCHEDULED FOR COMPLETION SOME EIGHT MONTHS
LATER. FURTHER, THE AGENCY STATES, AND THE UNION DOES NOT DISAGREE,
THAT THE UNION MADE NO OTHER REQUESTS FOR CONSTRUCTION TO BE HALTED, BUT
DISCUSSED WITH LMSA THE CHANGES TO BE MADE IN EACH OFFICE BEFORE
CONSTRUCTION BEGAN ON THAT OFFICE.
SOON AFTER CONSTRUCTION RESUMED, THE UNION SUBMITTED REVISED
PROPOSALS TO LMSA AND LMSA STATED THAT THOSE PROPOSALS ALSO WERE
NONNEGOTIABLE. IN THE FOLLOWING MONTH, LMSA FORMALLY NOTIFIED THE UNION
IN WRITING OF ITS "FINAL DECISION" IN THE MATTER, I.E., THAT THE UNION'S
PROPOSALS ARE NONNEGOTIABLE UNDER THE ORDER. THE UNION SUBSEQUENTLY
APPEALED THIS "FINAL DECISION" OF LMSA TO THE COUNCIL. DOL TIMELY FILED
A STATEMENT OF POSITION, IN EFFECT, ADOPTING THE "FINAL DECISION" OF
LMSA AS THE AGENCY DETERMINATION, AND THE UNION REQUESTED, AND WAS
GRANTED, AN OPPORTUNITY TO FILE A SUPPLEMENT TO ITS APPEAL.
IN YOUR APPEAL TO THE COUNCIL, YOU CONTEND THAT THE PROPOSALS ARE
NEGOTIABLE, AND REQUEST THAT THE COUNCIL GIVE "EXPEDITIOUS
CONSIDERATION" TO YOUR PETITION, "SINCE NEGOTIATIONS, NOW STALLED, COULD
RE-CONVENE PRIOR TO COMPLETION OF THIS SPACE TRANSFER." IN ADDITION, YOU
REQUEST THE COUNCIL "TO RESTORE THE STATUS QUO ANTE SO THAT APPROPRIATE
NEGOTIATIONS MAY PROCEED," OR, IN THE ALTERNATIVE, TO "ESTABLISH THE
NEGOTIABILITY OF THESE PROPOSALS IN ANY SPACE TRANSFER THAT THE
DEPARTMENT SHALL UNDERTAKE." IN THIS CONNECTION, YOU STATE THAT "(T)HE
PROPOSALS WERE BROUGHT UP DURING THE PRESENT MOVE SO AS TO BE LESS
DISRUPTIVE TO EMPLOYEES AND THE FUNCTIONS OF THE DEPARTMENT," AND,
FURTHER, CONTEND THAT IF THE PROPOSALS ARE "NEGOTIABLE ON THEIR MERITS,
(THEY) WOULD BE SUBJECT TO COLLECTIVE BARGAINING AT ANY TIME." FURTHER
IN THIS REGARD, YOU NOTE THAT SECTION 11(A) OF THE ORDER REQUIRES AN
AGENCY AND A LABOR ORGANIZATION TO MEET AT "REASONABLE TIMES" TO CONFER
IN GOOD FAITH WITH RESPECT TO EMPLOYEE WORKING CONDITIONS, AND CONTEND
THAT THERE IS "NO MORE REASONABLE TIME TO DEAL WITH MATTERS THAT MIGHT
REQUIRE CONSTRUCTION (THAN) WHEN THE AGENCY HAS ALREADY MADE ITS
DECISION TO RECONSTRUCT ITS SPACE." DOL, ON THE OTHER HAND, CONTENDS
THAT THE PROPOSALS ARE NONNEGOTIABLE UNDER THE ORDER AND, FURTHER, THAT
THE UNION IS USING MID-CONTRACT NEGOTIATIONS REGARDING THE IMPACT ON
UNIT EMPLOYEES OF THE PROPOSED CHANGES IN AGENCY WORKSPACE AS AN
"OPPORTUNITY TO NEGOTIATE CHANGES IN WORKING CONDITIONS WHICH (ARE) NOT
RELATED TO THE SPACE REALLOCATION MATTER AT ISSUE." IN THIS REGARD, THE
AGENCY STATES THAT SINCE IT "HAD NOT AGREED TO MID-TERM NEGOTIATIONS
WITH THE UNION OVER THIS SUBJECT MATTER, IT WAS INAPPROPRIATE FOR (THE
UNION) TO BRING SUCH MATTERS UP AT THIS TIME."
THE COUNCIL IS OF THE OPINION THAT THE NEGOTIABILITY ISSUES ATTEMPTED
TO BE RAISED BY THE UNION IN ITS APPEAL ARE PREMATURE. AS PREVIOUSLY
INDICATED, THE PARTIES' SUBMISSIONS TO THE COUNCIL IN THIS CASE RAISE
QUESTIONS AS TO WHETHER DOL WAS OBLIGATED TO BARGAIN WITH THE UNION IN
THE CIRCUMSTANCES OF THIS CASE AND, IF SO, WHETHER DOL HAS MET THAT
OBLIGATION. THAT IS, THE CONTENTIONS OF THE PARTIES RAISE QUESTIONS AS
TO WHETHER DOL IS OBLIGATED TO BARGAIN WITH RESPECT TO CERTAIN "NEW
MATTERS" IN THE UNION'S PROPOSALS WHICH ALLEGEDLY ARE UNRELATED TO THE
PARTICULAR SPACE RECONSTRUCTION BEING UNDERTAKEN BY DOL IN THE INSTANT
CASE.
THE COUNCIL CONSIDERED SIMILAR CONTENTIONS REGARDING THE SCOPE OF AN
AGENCY'S OBLIGATION UNDER SECTION 11(A) OF THE ORDER TO NEGOTIATE IN
CIRCUMSTANCES INVOLVING MID-CONTRACT, UNILATERAL CHANGES IN EMPLOYEE
WORKING CONDITIONS IN THE IMMIGRATION AND NATURALIZATION SERVICE CASE.
/2/ IN THAT CASE, THE COUNCIL DETERMINED THAT THE ESSENCE OF SUCH
CONTENTIONS "PRINCIPALLY RELATES TO WHETHER . . . (THE AGENCY) HAS MET
ITS OBLIGATION TO BARGAIN OVER THE UNION'S PROPOSALS, IN CONTRAST TO A
QUESTION OF WHETHER THE UNION'S PROPOSALS ARE THEMSELVES NEGOTIABLE,"
CONCLUDING THAT, INSOFAR AS THE APPEAL RAISED NEGOTIABILITY ISSUES, IT
WAS PREMATURE, AND, FURTHER THAT THE PROPER FORUM IN WHICH TO RAISE SUCH
ISSUES WAS NOT THROUGH A NEGOTIABILITY APPEAL BUT AN UNFAIR LABOR
PRACTICE PROCEEDING BEFORE THE ASSISTANT SECRETARY. /3/ SIMILARLY, IN
THE INSTANT CASE, WE FIND THAT THE CONTENTIONS OF THE PARTIES AS TO THE
EXTENT OF THE AGENCY'S OBLIGATION TO BARGAIN RAISE UNFAIR LABOR PRACTICE
ISSUES, AND RELATED FACTUAL QUESTIONS WHICH ARE APPROPRIATELY RESOLVED,
IN THE PARTICULAR CIRCUMSTANCES OF THIS CASE, THROUGH THE UNFAIR LABOR
PRACTICE PROCEDURES OF THE VICE CHAIRMAN OF THE CIVIL SERVICE
COMMISSION. /4/
THEREFORE, FOR THE REASONS MORE FULLY STATED IN IMMIGRATION AND
NATURALIZATION SERVICE, WE FIND THAT THE INSTANT APPEAL, ATTEMPTING TO
RAISE ISSUES AS TO THE NEGOTIABILITY OF THE DISPUTED PROPOSALS UNDER THE
ORDER, IS PREMATURELY FILED AND THE CONDITIONS FOR COUNCIL REVIEW OF
SUCH ISSUES, AS PRESCRIBED IN SECTION 11(C)(4) OF THE ORDER AND SECTION
2411.22 OF THE COUNCIL'S RULES (5 C.F.R. 2411.22) HAVE NOT BEEN MET.
ACCORDINGLY, BECAUSE YOUR PETITION FOR REVIEW FAILS TO MEET THE
CONDITIONS FOR REVIEW PRESCRIBED BY SECTION 11(C)(4) OF THE ORDER AND
SECTION 2411.22 OF THE COUNCIL'S RULES OF PROCEDURE (5 C.F.R. 2411.22),
YOUR APPEAL IS HEREBY DENIED.
BY THE COUNCIL. /5/
SINCERELY,
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
CC: S. K. CRONAN
DOL
/1/ THE SECRETARY OF LABOR DID NOT PARTICIPATE IN THIS DECISION.
/2/ NATIONAL OFFICE, NATIONAL BORDER PATROL COUNCIL, NATIONAL I & NS
COUNCIL, AFGE AND IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF
JUSTICE, 4 FLRC 500 (FLRC NO. 76A-47 (SEPT. 29, 1976), REPORT NO. 114).
/3/ ID. AT 504.
/4/ AS TO THE ASSUMPTION BY THE VICE CHAIRMAN OF THE CIVIL SERVICE
COMMISSION OF THE RESPONSIBILITIES OF THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS UNDER SECTION 6(A)(4) OF THE ORDER IN
CASES WHICH INVOLVE THE DEPARTMENT OF LABOR, SECTION 6(E) OF THE ORDER
PROVIDES AS FOLLOWS:
SEC. 6. ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS.
. . . .
(E) IF ANY MATTERS ARISING UNDER PARAGRAPH (A) OF THIS SECTION
INVOLVE THE DEPARTMENT OF
LABOR, THE DUTIES OF THE ASSISTANT SECRETARY DESCRIBED IN PARAGRAPHS
(A) AND (B) OF THIS
SECTION SHALL BE PERFORMED BY A MEMBER OF THE CIVIL SERVICE
COMMISSION DESIGNATED BY THE
CHAIRMAN OF THE COMMISSION.
SEE, E.G., LABOR-MANAGEMENT SERVICES ADMINISTRATION, DEPARTMENT OF
LABOR, 5 FLRC 747 (DECISION AND ORDER OF VICE CHAIRMAN OF U.S. CIVIL
SERVICE COMMISSION NO. 34), FLRC NO. 77A-43 (AUG. 23, 1977), REPORT NO.
135).
/5/ THE SECRETARY OF LABOR DID NOT PARTICIPATE IN THIS DECISION.
6 FLRC 1162; FLRC NO. 78A-82; DECEMBER 28, 1978.
(SYNOPSIS) FLRC NO. 78A-82
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 1245, AFL-CIO
AND DEPARTMENT OF THE INTERIOR, BUREAU OF RECLAMATION, MID-PACIFIC
REGION. THE UNION APPEALED TO THE COUNCIL FROM THE AGENCY'S DISAPPROVAL
OF A NUMBER OF PROVISIONS IN THE LOCAL PARTIES' AGREEMENT DURING REVIEW
OF THE AGREEMENT UNDER SECTION 15 OF THE ORDER. HOWEVER, SUBSEQUENT TO
THE UNION'S APPEAL THE AGENCY WITHDREW ITS OBJECTIONS TO THE SUBJECT
PROVISIONS.
COUNCIL ACTION (DECEMBER 28, 1978). THE COUNCIL HELD THAT THE
AGENCY'S ACTION SUBSEQUENT TO THE UNION'S APPEAL IN EFFECT RESCINDED ITS
INITIAL DISAPPROVAL OF THE DISPUTED PROVISIONS AND THEREBY RENDERED MOOT
THE DISPUTE INVOLVED IN THE APPEAL. ACCORDINGLY, THE COUNCIL DISMISSED
THE UNION'S APPEAL.
DECEMBER 28, 1978
MR. ALAN NICHOLAS KOPKE
NEYHART, ANDERSON AND NUSSBAUM
ATTORNEYS AT LAW
100 BUSH STREET, SUITE 2600
SAN FRANCISCO, CALIFORNIA 94104
RE: INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 1245,
AFL-CIO AND DEPARTMENT OF THE
INTERIOR, BUREAU OF RECLAMATION,
MID-PACIFIC REGION, FLRC NO. 78A-82
DEAR MR. KOPKE:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF A
NEGOTIABILITY DISPUTE FILED WITH THE COUNCIL ON BEHALF OF IBEW LOCAL
1245 ON JULY 17, 1978; YOUR SUPPLEMENTAL SUBMISSION FILED ON SEPTEMBER
29, 1978; THE AGENCY'S LETTER TO YOU OF OCTOBER 27, 1978; AND YOUR
TELEGRAM TO THE COUNCIL FILED ON NOVEMBER 13, 1978, IN THE
ABOVE-ENTITLED CASE.
THE RECORD IN THIS CASE INDICATES THAT THE AGENCY INITIALLY
DISAPPROVED THE DISPUTED PROVISIONS INVOLVED IN YOUR APPEAL DURING ITS
REVIEW OF THE LOCAL PARTIES' AGREEMENT UNDER SECTION 15 OF THE ORDER.
HOWEVER, IN ITS LETTER TO YOU OF OCTOBER 27, 1978, THE AGENCY WITHDREW
ITS OBJECTIONS TO THE SUBJECT PROVISIONS.
IN THE COUNCIL'S OPINION, THE AGENCY'S ACTION OF OCTOBER 27, 1978, IN
EFFECT RESCINDED ITS INITIAL DISAPPROVAL OF THE DISPUTED PROVISIONS AND
THEREBY RENDERED MOOT THE DISPUTE INVOLVED IN YOUR APPEAL. SEE, E.G.,
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1641 AND VETERANS
ADMINISTRATION HOSPITAL, SPOKANE, WASHINGTON, 5 FLRC 878 (FLRC NO.
77A-74 (AUG. 31, 1977), REPORT NO. 137).
ACCORDINGLY, YOUR PETITION FOR REVIEW IS HEREBY DISMISSED.
BY THE COUNCIL.
SINCERELY,
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
CC: H. JASCOURT
INTERIOR
6 FLRC 1156; FLRC NO. 78A-79; DECEMBER 28, 1978.
INTERNATIONAL ASSOCIATION
OF SIDEROGRAPHERS, AFL-CIO
WASHINGTON ASSOCIATION
(UNION)
AND
DEPARTMENT OF THE TREASURY,
BUREAU OF ENGRAVING AND PRINTING
(AGENCY)
FLRC NO. 78A-79
DECISION ON NEGOTIABILITY ISSUE
(SYNOPSIS) FLRC NO. 78A-79
INTERNATIONAL ASSOCIATION OF SIDEROGRAPHERS, AFL-CIO, WASHINGTON
ASSOCIATION AND DEPARTMENT OF THE TREASURY, BUREAU OF ENGRAVING AND
PRINTING. THE DISPUTE INVOLVED A UNION PROPOSAL RELATED TO PAY FOR
PARTICULAR CRAFT EMPLOYEES.
COUNCIL ACTION (DECEMBER 28, 1978). THE COUNCIL HELD THAT THE
PROPOSAL VIOLATED THE PREVAILING RATE EQUALIZATION ADJUSTMENT ACT OF
1972. ACCORDINGLY, PURSUANT TO SECTION 2411.28 OF ITS RULES OF
PROCEDURE, THE COUNCIL SUSTAINED THE AGENCY'S DETERMINATION THAT THE
PROPOSAL WAS NONNEGOTIABLE.
UNION PROPOSAL
WAGES
OF
SIDEROGRAPHERS-- CYLINDER ENGRAVERS /1/
WAGES-- SIDEROGRAPHERS-- CYLINDER ENGRAVERS AT THE BUREAU OF
ENGRAVING AND PRINTING SHALL
HAVE THEIR WAGES ADJUSTED FROM TIME TO TIME AS IS CONSISTENT WITH
RATES PREVAILING AT THE
AMERICAN BANK NOTE COMPANY, PLUS A DIFFERENTIAL OF 25% FOR THE
ADDITIONAL SKILLS, COMPLEXITY
AND RESPONSIBILITY.
IN ANY EVENT, THE WAGES PAID TO THE CYLINDER SIDEROGRAPHERS SHALL BE
NO LESS THAN THOSE
PAID TO THE ENGRAVERS AT THE BUREAU WHO POSSESS COMPARABLE SKILLS.
AGENCY DETERMINATION
THE AGENCY DETERMINED THAT THE PROPOSAL VIOLATES THE PREVAILING RATE
EQUALIZATION ADJUSTMENT ACT OF 1972 (HEREINAFTER THE PREVAILING RATE
ACT) /2/ AND CONSEQUENTLY IS NOT NEGOTIABLE UNDER SECTION 11(A) OF THE
ORDER.
QUESTION HERE BEFORE THE COUNCIL
WHETHER THE PROPOSAL VIOLATES THE PREVAILING RATE ACT AND IS THEREBY
RENDERED NONNEGOTIABLE UNDER SECTION 11(A) OF THE ORDER. /3/
OPINION
CONCLUSION: THE PROPOSAL VIOLATES THE PREVAILING RATE ACT.
ACCORDINGLY, THE AGENCY'S DETERMINATION THAT THE PROPOSAL IS
NONNEGOTIABLE WAS PROPER AND, PURSUANT TO SECTION 2411.28 OF THE
COUNCIL'S RULES, IS SUSTAINED.
REASONS: THE AGENCY CONTENDS THAT THE UNION'S PROPOSAL VIOLATES THE
PREVAILING RATE ACT BECAUSE THE PROPOSAL WOULD ESTABLISH A STANDARD FOR
THE PAY OF SIDEROGRAPHERS DIFFERENT FROM THE STANDARD MANDATED IN THE
ACT. WE FIND MERIT IN THE AGENCY'S CONTENTION.
SECTION 5349(A) OF TITLE 5, WHICH MANDATES THE STANDARD FOR SETTING
THE PAY OF SIDEROGRAPHERS (AND CERTAIN OTHER EMPLOYEES AT THE BUREAU OF
ENGRAVING AND PRINTING), PROVIDES IN RELEVANT PART: /4/
SEC. 5349. PREVAILING RATE EMPLOYEES; LEGISLATIVE, JUDICIAL, BUREAU
OF ENGRAVING AND
PRINTING, AND GOVERNMENT OF THE DISTRICT OF COLUMBIA.
(A) THE PAY OF EMPLOYEES, DESCRIBED UNDER SECTION 5102(C)() OF THIS
TITLE, IN . . . THE
BUREAU OF ENGRAVING AND PRINTING . . . SHALL BE FIXED AND ADJUSTED
FROM TIME TO TIME AS NEARLY
AS IS CONSISTENT WITH THE PUBLIC INTEREST IN ACCORDANCE WITH
PREVAILING RATES . . . AS THE
PAY-FIXING AUTHORITY OF EACH SUCH AGENCY MAY DETERMINE.
THE UNION'S PROPOSAL, ON THE OTHER HAND, PROVIDES THAT THE RATE OF
PAY FOR SIDEROGRAPHERS AT THE BUREAU OF ENGRAVING AND PRINTING WILL BE
ADJUSTED FROM TIME TO TIME AS IS CONSISTENT WITH THE PREVAILING RATE OF
PAY OF THEIR COUNTERPART SIDEROGRAPHERS AT THE AMERICAN BANK NOTE
COMPANY PLUS A DIFFERENTIAL OF 25%. /5/ THE PROPOSAL FURTHER PROVIDES
THAT IN ANY EVENT, THE WAGES PAID TO THE SIDEROGRAPHERS AT THE BUREAU
SHALL BE NO LESS THAN THOSE WAGES PAID TO THE ENGRAVERS AT THE BUREAU.
IN OTHER WORDS, THIS PROPOSAL WOULD ESTABLISH, IN THE FIRST INSTANCE, A
STANDARD FOR FIXING THE RATE OF PAY FOR SIDEROGRAPHERS, I.E., THE
PREVAILING RATE AT THE AMERICAN BANK NOTE COMPANY PLUS A DIFFERENTIAL OF
25 PERCENT. SECONDLY, THE PROPOSAL WOULD REQUIRE THAT THE WAGES OF THE
SIDEROGRAPHERS MEET A MINIMUM STANDARD, I.E., THEIR WAGES MAY NOT BE
LESS THAN THOSE OF THE ENGRAVERS (A WHOLLY DISCRETE CRAFT) AT THE
BUREAU.
IT IS CLEAR THAT THE STANDARDS PROPOSED FOR NEGOTIATION BY THE UNION
DO NOT REQUIRE, AS DOES THE PREVAILING RATE ACT, THAT THE PAY OF
SIDEROGRAPHERS SHALL BE "AS NEARLY AS IS CONSISTENT WITH THE PUBLIC
INTEREST IN ACCORDANCE WITH PREVAILING RATES . . . " THE UNION'S
PROPOSAL WOULD ESTABLISH DIFFERENT STANDARDS FOR FIXING THE RATE OF PAY
FOR SIDEROGRAPHERS (THE PREVAILING RATE PLUS 25 PERCENT OR IN ANY EVENT,
NOT LESS THAN THAT PAID TO ENGRAVERS AT THE BUREAU) AND WOULD SUPPLANT
THE STANDARD PRESCRIBED BY THE STATUTE.
IN THIS REGARD, CONTRARY TO THE UNION'S CONTENTION, THE DISPUTED
PROPOSAL IS DISTINGUISHABLE FROM THE THREE PROPOSALS CONCERNING
COMPENSATION WHICH THE COUNCIL FOUND NEGOTIABLE IN THE OFFICE OF
DEPENDENTS SCHOOLS CASE. /6/ IN THAT CASE, THE UNION'S PROPOSALS
CONCERNING COMPENSATION FOR TEACHERS SOUGHT ONLY TO IMPLEMENT PROVISIONS
OF THE OVERSEAS TEACHERS PAY AND PERSONNEL PRACTICES ACT. /7/ THAT IS,
THE PROPOSALS CONTAINED MECHANISMS DESIGNED MERELY TO EFFECTUATE THE
STANDARDS FOR THE RATE OF COMPENSATION PRESCRIBED BY THE ACT; THOSE
PROPOSALS DID NOT, BY THEIR LANGUAGE OR BY THE UNION'S INTENT AS TO
THEIR AS TO THEIR EFFECT AS REFLECTED IN THE RECORD BEFORE THE COUNCIL,
REQUIRE REPLACEMENT OF THE STATUTORY STANDARD FOR THE RATE OF
COMPENSATION WITH ANOTHER CONFLICTING STANDARD, AS THE PROPOSAL IN THIS
CASE WOULD DO. /8/ CONSEQUENTLY, HERE, UNLIKE THE OFFICE OF DEPENDENTS
SCHOOLS CASE, WE MUST FIND THAT THE UNION'S PROPOSAL VIOLATES THE
STATUTE AND, CONSEQUENTLY, IS NONNEGOTIABLE.
ACCORDINGLY, FOR THE REASONS STATED ABOVE, WE SUSTAIN THE AGENCY'S
DETERMINATION THAT THIS PROPOSAL IS NONNEGOTIABLE.
BY THE COUNCIL.
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
ISSUED: DECEMBER 28, 1978
/1/ SIDEROGRAPHERS ARE MEMBERS OF A DISCRETE CRAFT ENGAGED IN THE
INTEGRATED WORK PROCESS OF THE INTAGLIO METHOD OF PRINTING USED BY THE
BUREAU OF ENGRAVING AND PRINTING IN THE PRODUCTION OF BANK NOTES,
POSTAGE STAMPS AND OTHER SIMILAR PRODUCTS ISSUED BY THE U.S.
GOVERNMENT. SPECIFICALLY, SIDEROGRAPHERS ARE IN THAT SERIES OF JOBS
THAT "INCLUDES ALL CLASSES OF POSITIONS THE DUTIES OF WHICH ARE TO
SUPERVISE AND/OR PERFORM WORK INVOLVED IN REPRODUCING ENGRAVINGS ON
STEEL PLATES AND ROLLS FROM ORIGINAL DIES MAKING IT POSSIBLE TO PRODUCE
A SINGLE DESIGN FROM INDIVIDUAL ENGRAVINGS (LETTERING, ORNAMENTAL
SCROLLS, PORTRAITS, VIGNETTES) AND GEOMETRIC LATHE WORK ACCORDING TO
MODELS AND LAYOUTS AND REPRODUCING MULTIPLE SUBJECT PLATES FROM SINGLE
SUBJECT DIES." CSC, HANDBOOK OF BLUE COLLAR OCCUPATIONAL FAMILIES AND
SERIES, SECTION 5621, REPRINTED 1967.
/2/ PREVAILING RATE EQUALIZATION ADJUSTMENT ACT OF 1972, 5 U.S.C.
5349(1976).
/3/ SECTION 11(A) OF THE ORDER PROVIDES IN RELEVANT 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 . . .
/4/ THE PREVAILING RATE EQUALIZATION ADJUSTMENT ACT OF 1972 WAS
PASSED BY THE CONGRESS WITH THE PURPOSE OF "ESTABLISH(ING) BY LAW AN
EQUITABLE SYSTEM FOR FIXING AND ADJUSTING FROM TIME TO TIME, THE RATES
OF PAY FOR PREVAILING RATE EMPLOYEES OF THE GOVERNMENT OF THE UNITED
STATES, AND OF PREVAILING RATE EMPLOYEES PAID FROM NONAPPROPRIATED FUNDS
OF THE ARMED FORCES." H.R. REP. NO. 92-339, 92D CONG., 1ST SESS. 5
(1971). TO THAT END, THE CONGRESS ESTABLISHED, BY THAT ACT, A PROCESS
TO BE ADMINISTERED BY THE U.S. CIVIL SERVICE COMMISSION TO DETERMINE
THE RATE OF PAY FOR SUCH PREVAILING RATE EMPLOYEES. SEE 5 U.S.C. 5341
ET SEQ. (1976). EMPLOYEES OF THE BUREAU OF ENGRAVING AND PRINTING ARE
EXCLUDED FROM THE PROVISIONS OF THE PREVAILING SECTION 5349. 5 U.S.C.
5342(A)(1)(I)(1976); H.R. REP. NO. 92-339, 92D CONG., 1ST SESS. 9
(1971).
/5/ WAGE RATES FOR SIDEROGRAPHERS AND OTHER INTAGLIO CRAFT EMPLOYEES
AT THE BUREAU OF ENGRAVING AND PRINTING ARE ESTABLISHED THROUGH
JOB-TO-JOB COMPARISONS WITH THE AMERICAN BANK NOTE COMPANY IN NEW YORK,
WHICH HAS THE ONLY COMPARABLE POSITIONS AVAILABLE IN THE UNITED STATES.
THE POLICY ESTABLISHING THIS PRACTICE WAS SET FORTH BY THE DEPARTMENT OF
THE TREASURY IN TREASURY PERSONNEL MANUAL, CHAP. 532, PARA. 2-2D (MAY
12, 1969), AND WAS SUBSEQUENTLY ENDORSED BY THE CONGRESS IN EXEMPTING
THESE EMPLOYEES FROM THE GENERAL PROVISIONS OF THE PREVAILING RATE
EQUALIZATION ADJUSTMENT ACT OF 1972. SEE H.R. REP. NO. 92-339, 92D
CONG., 1ST SESS. 9-10, 19 (1971).
/6/ OVERSEAS EDUCATION ASSOCIATION, INC. AND DEPARTMENT OF DEFENSE,
OFFICE OF DEPENDENTS SCHOOLS, FLRC NO. 76A-142 (FEB. 28, 1978), REPORT
NO. 143 AT 1-4 OF COUNCIL DECISION.
/7/ DEPARTMENT OF DEFENSE OVERSEAS TEACHERS PAY AND PERSONNEL
PRACTICES ACT OF 1959, AS AMENDED, 20 U.S.C. 901, ET SEQ. (1976).
/8/ AS INDICATED EARLIER (NOTE 5, SUPRA), WHEN CONGRESS SET THE
STANDARD FOR PAY RATES FOR EMPLOYEES AT THE BUREAU OF ENGRAVING AND
PRINTING IN SECTION 5349 OF THE PREVAILING RATE ACT, IT APPROVED THE PAY
PRACTICES OF THE AGENCY WITH REGARD TO THESE EMPLOYEES AS MEETING SUCH
STANDARD. SEE H.R. REP. NO. 92-339, 92D CONG., 1ST SESS. 10, 19 (1971).
AT THE SAME TIME, THE CONGRESS ALSO INDICATED THAT THE PAY-FIXING
AUTHORITY IN THE AGENCY COULD CHANGE SUCH PRACTICES IF A "VALID BASIS"
EXISTED FOR SUCH CHANGES. H.R. REP. NO. 92-339, 92D CONG., 1ST SESS. 19
(1971). ALTHOUGH NOT A CONTROLLING CONSIDERATION HEREIN, WE NOTE THAT
THE UNION, THOUGH IT CONTENDS, IN PART, THAT ITS PROPOSAL IS CONSISTENT
WITH CONGRESS'S INTENTION AS EXPRESSED IN THE LEGISLATIVE HISTORY OF THE
PREVAILING RATE ACT, HAS MADE NO SHOWING THAT A "VALID BASIS" EXISTS, IN
FACT, FOR CHANGES IN THE AGENCY'S PAY PRACTICES, NOR HAS IT MADE ANY
SHOWING AT ALL THAT SUCH CHANGED PRACTICES WOULD RESULT IN RATES OF PAY
WHICH WOULD MEET THE STANDARD SET OUT IN 5 U.S.C. 5349.
6 FLRC 1149; FLRC NO. 78A-74; DECEMBER 28, 1978.
U.S. MARINE CORPS LOGISTICS SUPPORT
BASE, ATLANTIC, ALBANY, GEORGIA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2317, AFL-CIO
FLRC NO. 78A-74
DECISION ON APPEAL FROM ARBITRATION AWARD
(SYNOPSIS) FLRC NO. 78A-74
U.S. MARINE CORPS LOGISTICS SUPPORT BASE, ATLANTIC, ALBANY, GEORGIA
AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2317, AFL-CIO
(GRIFFIN, ARBITRATOR). THE ARBITRATOR DETERMINED THAT THE ACTIVITY
VIOLATED THE PARTIES' AGREEMENT BY REORGANIZING ONE OF ITS SHOPS WITHOUT
PRIOR NEGOTIATION WITH THE UNION, AND HE DIRECTED THAT THE
REORGANIZATION BE RESCINDED AND THAT THE PARTIES UNDERTAKE NEGOTIATIONS.
THE COUNCIL ACCEPTED THE AGENCY'S PETITION FOR REVIEW OF THE AWARD
INSOFAR AS IT RELATED TO THE AGENCY'S EXCEPTIONS WHICH ALLEGED THAT THE
AWARD VIOLATED SECTIONS 11(B) AND 12(B)(5) OF THE ORDER. THE COUNCIL
ALSO GRANTED THE AGENCY'S REQUEST FOR A STAY. (REPORT NO. 160)
COUNCIL ACTION (DECEMBER 28, 1978). THE COUNCIL HELD THAT THE
PORTION OF THE AWARD DIRECTING THAT THE REORGANIZATION BE RESCINDED
VIOLATED SECTION 12(B)(5) OF THE ORDER, BUT THAT THE PORTION OF THE
AWARD DIRECTING THAT THE PARTIES UNDERTAKE NEGOTIATIONS VIOLATED NEITHER
SECTION 11(B) NOR 12(B)(5) OF THE ORDER. ACCORDINGLY, PURSUANT TO
SECTION 2411.37(B) OF ITS RULES OF PROCEDURE, THE COUNCIL MODIFIED THE
ARBITRATOR'S AWARD BY STRIKING THE PORTION THEREOF FOUND VIOLATIVE OF
SECTION 12(B)(5) OF THE ORDER. AS SO MODIFIED, THE COUNCIL SUSTAINED
THE AWARD AND VACATED THE STAY WHICH IT HAD PREVIOUSLY GRANTED.
BACKGROUND OF CASE
BASED ON THE FINDINGS OF THE ARBITRATOR AND THE RECORD BEFORE THE
COUNCIL, IT APPEARS THAT THIS DISPUTE AROSE WHEN THE ACTIVITY
REORGANIZED ONE OF ITS SHOPS. PREVIOUSLY, THE WORK IN THIS SHOP HAD
BEEN DIVIDED AMONG THREE UNITS-- AN ELECTRICAL UNIT, A VEHICLE UNIT, AND
AN ORDNANCE UNIT-- ORGANIZED UNDER ONE FOREMAN. THE ACTIVITY
REORGANIZED THE SHOP BY ESTABLISHING TWO SUPERVISORY POSITIONS. THE
ACTIVITY PLACED THE ORDNANCE AND VEHICLE UNITS UNDER ONE OF THE NEW
SUPERVISORS AND THE ELECTRICAL UNIT UNDER THE OTHER SUPERVISOR. A
MILITARY PERSON WAS MADE SUPERVISOR OF THE ORDNANCE AND VEHICLE UNITS.
A GRIEVANCE WAS FILED BY A NUMBER OF CIVILIAN EMPLOYEES IN THE ORDNANCE
AND VEHICLE UNITS MAINTAINING THAT THEIR PROMOTIONAL OPPORTUNITIES HAD
BEEN INHIBITED BY MAKING A MILITARY PERSON THEIR SUPERVISOR AND THAT THE
ACTIVITY WAS OBLIGATED TO DISCUSS THESE CHANGES WITH THE UNION PRIOR TO
PUTTING THEM INTO EFFECT. THE GRIEVANCE WAS ULTIMATELY SUBMITTED TO
ARBITRATION.
THE ARBITRATOR'S AWARD
THE ARBITRATOR STATED THE ISSUE BEFORE HIM AS WHETHER THE ACTIVITY
VIOLATED ARTICLE IV OF THE PARTIES' NEGOTIATED AGREEMENT /1/ AND THE
ORDER WHEN IT DID NOT CONSULT WITH THE UNION PRIOR TO THE SHOP
REORGANIZATION. NOTING THAT BOTH THE PARTIES' AGREEMENT AND THE ORDER
"CALL FOR CONSULTATION, NEGOTIATION, OR DISCUSSION WHEN MANAGEMENT
UNDERTAKES TO MAKE CERTAIN CHANGES," THE ARBITRATOR QUESTIONED WHETHER
THE CHANGES IN THIS CASE WERE AMONG THOSE THAT ARE REQUIRED "TO BE
NEGOTIATED AND DISCUSSED WITH THE UNION." FINDING THAT THE ACTIVITY
"FAILED TO PROVE THAT (THE REORGANIZATION INVOLVED IN THIS CASE) IS
EXCLUDED FROM NEGOTIATION" AND THAT IT FAILED "TO SHOW THAT PRIOR
NEGOTIATION EVER TOOK PLACE," THE ARBITRATOR SUSTAINED THE GRIEVANCE.
HIS AWARD WAS THAT "MANAGEMENT DID VIOLATE THE TERMS OF THE AGREEMENT AS
WELL AS THE EXECUTIVE ORDER. THE REORGANIZATION . . . SHOULD NOW BE
RESCINDED, AND THE PARTIES SHOULD UNDERTAKE NEGOTIATIONS."
AGENCY'S APPEAL TO THE COUNCIL
THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD WITH
THE COUNCIL. THE COUNCIL ACCEPTED THE AGENCY'S PETITION FOR REVIEW
INSOFAR AS IT RELATED TO THE AGENCY'S EXCEPTION WHICH ALLEGES THAT THE
AWARD VIOLATES SECTION 11(B) OF THE ORDER AND THE AGENCY'S EXCEPTION
WHICH ALLEGES THAT THE AWARD VIOLATES SECTION 12(B)(5) OF THE ORDER.
/2/
OPINION
SECTION 2411.37(A) OF THE COUNCIL'S RULES OF PROCEDURE PROVIDES:
(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 AGENCY'S EXCEPTIONS WHICH ALLEGED
THAT THE AWARD VIOLATES SECTIONS 11(B) AND 12(B)(5) OF THE ORDER.
TURNING FIRST TO THE AGENCY'S EXCEPTION THAT THE AWARD VIOLATES
SECTION 12(B)(5), /3/ THE AGENCY ASSERTS THAT THE AWARD CONTRAVENES THE
RIGHT RESERVED TO MANAGEMENT BY SECTION 12(B)(5) TO DETERMINE THE
METHODS, MEANS, AND PERSONNEL FOR ACCOMPLISHING ITS WORK BY ORDERING
RESCISSION OF THE SHOP REORGANIZATION, AN ASSERTEDLY IMPROPER STATUS QUO
ANTE REMEDY, AND BY ORDERING NEGOTIATION OVER WHETHER THE SUPERVISORY
POSITION ESTABLISHED FOR THE ORDNANCE AND VEHICLE UNITS SHOULD BE FILLED
BY CIVILIAN OR MILITARY PERSONNEL. AS ALREADY MENTIONED, PROMPTED BY AN
INCREASE IN WORKLOAD, THE ACTIVITY REORGANIZED ONE OF ITS SHOPS BY
ESTABLISHING TWO SUPERVISORY POSITIONS. THE ACTIVITY CHOSE TO ESTABLISH
THE SUPERVISORY POSITION FOR THE ORDNANCE AND VEHICLE UNITS AS A
MILITARY BILLET. IN RESOLVING THE RESULTING GRIEVANCE, THE ARBITRATOR
FOUND A VIOLATION OF THE AGREEMENT BECAUSE THE ACTIVITY FAILED TO
CONSULT WITH THE UNION PRIOR TO EFFECTING THIS REORGANIZATION. AS A
REMEDY THE ARBITRATOR ORDERED THE REORGANIZATION RESCINDED AND ORDERED
THE PARTIES TO UNDERTAKE NEGOTIATIONS. IN THE COUNCIL'S OPINION, TO THE
EXTENT THAT THE AWARD DIRECTS THAT THE REORGANIZATION BE RESCINDED, SUCH
AWARD INTERFERES WITH RIGHTS RESERVED EXCLUSIVELY TO AGENCY MANAGEMENT
BY SECTION 12(B)(5) AND THEREFORE VIOLATES THAT SECTION OF THE ORDER.
THE COUNCIL HAS FREQUENTLY STATED THAT AGENCY MANAGEMENT HAS THE
RESERVED RIGHT TO DETERMINE THE TYPE OF PERSONNEL THAT WILL CONDUCT
AGENCY OPERATIONS, IN SHORT, "WHO" WILL CONDUCT ITS OPERATIONS.
SPECIFICALLY, THE COUNCIL HAS HELD THAT SECTION 12(B)(5) RESERVES TO
AGENCY MANAGEMENT THE EXCLUSIVE RIGHT TO DETERMINE THE PARTICULAR GROUP
OF PERSONS, SUCH AS MILITARY PERSONNEL RATHER THAN CIVILIAN PERSONNEL,
TO BE ENGAGED IN THE PERFORMANCE OF AGENCY OPERATIONS. /4/ THUS, IN
TERMS OF THIS CASE IT IS CLEAR THAT THE ACTIVITY'S REORGANIZATION OF THE
SHOP, PARTICULARLY THE DETERMINATION TO MAKE THE ORDNANCE AND VEHICLE
UNIT SUPERVISORY POSITION A MILITARY BILLET, RELATED TO THE EXERCISE BY
AGENCY MANAGEMENT OF ITS SUBSTANTIVE RIGHT UNDER SECTION 12(B)(5) TO
DETERMINE THE TYPE OF PERSONNEL WHO WILL CONDUCT SPECIFIC AGENCY
OPERATIONS. MOREOVER, IT IS LIKEWISE CLEAR THAT THIS RIGHT MAY NEITHER
BE RELINQUISHED NOR DILUTED BY A NEGOTIATED AGREEMENT OR BY AN AWARD OF
AN ARBITRATOR. /5/ IN THIS CASE THE ARBITRATOR'S AWARD DIRECTS THAT THE
REORGANIZATION BE RESCINDED. SINCE SUCH A STATUS QUO ANTE REMEDY IN
THIS CASE SO INTERFERES WITH THE EXERCISE BY AGENCY MANAGEMENT OF RIGHTS
RESERVED EXCLUSIVELY TO IT BY SECTION 12(B) OF THE ORDER AS TO
EFFECTIVELY DENY THE EXERCISE OF THE RIGHT ITSELF, THE AWARD'S ORDERED
RESCISSION OF THE REORGANIZATION VIOLATES SECTION 12(B)(5) OF THE ORDER
AND MAY NOT BE SUSTAINED. /6/
AT THE SAME TIME, HOWEVER, THE COUNCIL IS OF THE OPINION THAT THE
AGENCY HAS MISINTERPRETED THAT PORTION OF THE AWARD ORDERING THAT "THE
PARTIES SHOULD UNDERTAKE NEGOTIATIONS." AS PREVIOUSLY NOTED, THE AGENCY
ASSERTS THAT THE AWARD HAS ORDERED NEGOTIATION OVER WHETHER THE
SUPERVISORY POSITION ESTABLISHED FOR THE ORDNANCE AND VEHICLE UNITS
SHOULD BE FILLED BY CIVILIAN OR MILITARY PERSONNEL. BASED ON THE
ARBITRATOR'S AWARD AS A WHOLE, THE COUNCIL UNDERSTANDS THIS PART OF THE
AWARD AS SIMPLY DIRECTING THE ACTIVITY TO NEGOTIATE OVER THE IMPACT AND
IMPLEMENTATION OF THE SHOP REORGANIZATION. NOWHERE DOES THE ARBITRATOR
DIRECT SUCH SUBSTANTIVE NEGOTIATIONS AS ASSERTED BY THE AGENCY.
FURTHERMORE, THE AGENCY PRESENTS NO REASON WHY SUCH A DIRECTIVE MUST BE
INFERRED. IN OUR OPINION, THEREFORE, THE ONLY CLEAR REQUIREMENT OF THE
AWARD IS THAT THE AGENCY NOW UNDERTAKE NEGOTIATION OVER THE IMPACT AND
IMPLEMENTATION OF THE REORGANIZATION, A MATTER THE AGENCY CONCEDES THAT
IT WAS OBLIGATED, BUT FAILED, TO DO. THUS, THERE IS NO BASIS FOR
FINDING THAT PORTION OF THE AWARD ORDERING THAT "THE PARTIES SHOULD
UNDERTAKE NEGOTIATIONS" CONTRARY TO SECTION 12(B)(5) OF THE ORDER.
THE AGENCY ALSO TAKES EXCEPTION TO THE NEGOTIATIONS DIRECTED BY THE
AWARD AS VIOLATIVE OF SECTION 11(B) OF THE ORDER. HOWEVER, THIS
OBJECTION PROCEEDS FROM THE IDENTICAL INTERPRETATION OF THIS PORTION OF
THE AWARD AS PREMISED THE AGENCY'S ASSERTIONS RESPECTING SECTION
12(B)(5). AS STATED ABOVE, THE COUNCIL IS OF THE OPINION THAT THE AWARD
ONLY REQUIRES THAT THE AGENCY UNDERTAKE THAT WHICH IT CONCEDEDLY FAILED
TO DO ORIGINALLY, I.E., NEGOTIATE OVER THE IMPACT AND IMPLEMENTATION OF
THE REORGANIZATION. THUS, THERE IS LIKEWISE NO BASIS FOR FINDING THIS
PART OF THE AWARD CONTRARY TO SECTION 11(B) OF THE ORDER.
ACCORDINGLY, THE COUNCIL HOLDS THAT THIS PORTION OF THE AWARD
ORDERING THAT "THE PARTIES SHOULD UNDERTAKE NEGOTIATIONS" DOES NOT
CONFLICT WITH EITHER SECTION 12(B)(5) OR SECTION 11(B) OF THE ORDER AND
MUST THEREFORE BE SUSTAINED.
CONCLUSION
FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2411.37(B) OF THE
COUNCIL'S RULES OF PROCEDURE, WE MODIFY THE ARBITRATOR'S AWARD BY
STRIKING THAT PART OF THE AWARD WHICH DIRECTS THAT THE REORGANIZATION
SHOULD BE RESCINDED. AS SO MODIFIED, THE AWARD IS SUSTAINED AND THE
STAY OF THE AWARD IS VACATED.
BY THE COUNCIL.
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
ATTACHMENTS:
APPENDIX
ISSUED: DECEMBER 28, 1978
APPENDIX
ARTICLE IV, MATTERS SUBJECT TO CONSULTATION AND NEGOTIATION,
PROVIDES:
SECTION 1. IT IS AGREED AND UNDERSTOOD THAT MATTERS APPROPRIATE FOR
CONSULTATION AND
NEGOTIATION BETWEEN THE EMPLOYER AND THE UNION ARE PERSONNEL POLICIES
AND PRACTICES AND
MATTERS AFFECTING WORKING CONDITIONS WHICH ARE WITHIN THE DISCRETION
OF THE EMPLOYER
INCLUDING, BUT NOT LIMITED TO, SUCH MATTERS AS SAFETY, TRAINING,
LABOR-MANAGEMENT RELATIONS,
EMPLOYEE SERVICES, METHODS OF ADJUSTING GRIEVANCES, APPEALS, LEAVE,
PROMOTION PLANS, DEMOTION
PRACTICES, PAY PRACTICES, REDUCTION-IN-FORCE PRACTICES, AND HOURS OF
WORK.
SECTION 2. THE EMPLOYER AGREES TO ISSUE NO REGULATION OR DIRECTIVE
WHICH EFFECTS CHANGES
TO EXISTING PERSONNEL POLICIES AND PRACTICES OR WORKING CONDITIONS
WITHOUT PRIOR CONSULTATION
WITH THE UNION, AND AN OPPORTUNITY TO NEGOTIATE, UNLESS THE PARTIES
HAVE MUTUALLY AGREED TO
LIMIT THIS OBLIGATION IN ANY WAY. FOR PURPOSES OF THIS AGREEMENT,
CONSULTATION IS DEFINED AS
DIALOGUE, EITHER ORAL OR WRITTEN ON SPECIFIC ISSUES. THE EMPLOYER
FURTHER AGREES TO PROVIDE
THE UNION WITH A COPY OF ANY PROPOSED REGULATION OR DIRECTIVE WHICH
EFFECTS SUCH CHANGES FOR
COMMENTS AND RECOMMENDATIONS. THE EMPLOYER AGREES TO GIVE OBJECTIVE
AND SPECIFIC
CONSIDERATION TO THE UNION'S VIEWS AND SUGGESTIONS THEREON. IF THE
UNION DESIRES TO MEET AND
CONSULT OR NEGOTIATE WITH THE EMPLOYER ON THE PROPOSED CHANGE A
MEETING FOR THIS PURPOSE WILL
BE HELD, PROVIDING A REQUEST FOR SUCH MEETINGS IS SUBMITTED BY THE
UNION WITHIN FIVE (5)
WORKING DAYS AFTER RECEIPT OF THE COPY OF THE PROPOSED REGULATION.
IN CONSULTATION, A SERIOUS
ATTEMPT WILL BE MADE BY THE EMPLOYER TO ACCOMODATE THE VIEWPOINTS OF
THE UNION. IF THE
UNION'S VIEWPOINTS ARE NOT ACCEPTED AT CONSULTATION, THE UNION WILL
BE ADVISED FULLY OF THE
REASONS FOR NOT BEING ABLE TO ACCOMMODATE THE VIEWPOINTS PRIOR TO
IMPLEMENTATION OF THE
REGULATION OR DIRECTIVE.
SECTION 3. THE EMPLOYER AND THE UNION ARE AGREED ON THE NECESSITY OF
MEETING AT REASONABLE
TIMES AND CONSULTING 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. CONSULTATION WITH THE UNION OR ITS REPRESENTATIVES,
WILL NORMALLY BE CONDUCTED
DURING THE REGULAR WORK DAY, WITH REASONABLE TIME BEING GRANTED THE
EMPLOYEE REPRESENTATIVES,
WITHOUT CHARGE TO LEAVE, IN CONNECTION WITH OFFICIALLY REQUESTED OR
APPROVED CONSULTATIONS OR
MEETINGS WITH THE EMPLOYER. IT IS UNDERSTOOD THAT THE PAYMENT OF
OVERTIME WILL NOT BE
OBLIGATED FOR THIS PURPOSE.
SECTION 4. IT IS AGREED AND UNDERSTOOD THAT THE EMPLOYER WILL GIVE
THE UNION ADEQUATE
NOTICE AND WILL CONSULT WITH THE UNION (AS DESCRIBED IN SECTION 2
ABOVE) BEFORE MAKING CHANGES
OF EXISTING BENEFITS, PRACTICES AND UNDERSTANDINGS WHICH HAVE BEEN
MUTUALLY ACCEPTABLE TO THE
EMPLOYER AND THE UNION BUT WHICH ARE NOT COVERED BY THIS AGREEMENT.
THESE EXISTING BENEFITS, PRACTICES AND UNDERSTANDINGS MUST HAVE BEEN
OF LONG DURATION,
GENERALLY OVER A PERIOD OF YEARS IN WHICH THE EMPLOYER AND THE UNION
HAVE RECOGNIZED A
CONTINUED AND CONSISTENT RESPONSE TO A SIMILAR SET OF RECURRING
CIRCUMSTANCES WHEREIN THE
RESPONSE IS CONSISTENTLY THE SAME TO THE DEGREE THAT THE PARTIES
FOUND NO NEED IN THE PAST TO
FORMALIZE THESE INTO THIS AGREEMENT. THESE BENEFITS, PRACTICES AND
UNDERSTANDINGS CANNOT BE
INCONSISTENT WITH THIS AGREEMENT NOR CAN THEY VIOLATE ANY EXISTING
LAW OR REGULATION.
/1/ ARTICLE IV OF THE PARTIES' NEGOTIATED AGREEMENT SETS FORTH THE
MATTERS SUBJECT TO CONSULTATION AND NEGOTIATION. THE TEXT OF ARTICLE IV
IS ATTACHED AS AN APPENDIX.
/2/ THE AGENCY NOTED WITH RESPECT TO BOTH OF THESE EXCEPTIONS TO THE
AWARD THAT IT DOES NOT SEEK TO HAVE THE AWARD SET ASIDE IN ITS ENTIRETY.
THE AGENCY CONCEDES THAT THE ARBITRATOR WAS CORRECT IN CONCLUDING THAT
THE UNION WAS NOT GIVEN SUCH SPECIFIC AND TIMELY NOTICE OF THE
REORGANIZATION SO AS TO PROVIDE THE UNION WITH AN OPPORTUNITY TO REQUEST
NEGOTIATION ABOUT THE IMPACT AND IMPLEMENTATION OF THE REORGANIZATION.
IN ACCEPTING THE AGENCY'S PETITION FOR REVIEW, THE COUNCIL ALSO GRANTED,
PURSUANT TO SECTION 2411.47(F) OF ITS RULES, THE AGENCY'S REQUEST FOR A
STAY.
/3/ SECTION 12(B)(5) PROVIDES:
(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(.)
/4/ TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL AND
NAVAL PUBLIC WORKS CENTER, NORFOLK, VIRGINIA, 1 FLRC 431, 437 (FLRC NO.
71A-56 (JUNE 29, 1973), REPORT NO. 41).
/5/ FEDERAL AVIATION ADMINISTRATION AND PROFESSIONAL AIR TRAFFIC
CONTROLLERS ORGANIZATION (SABELLA, ARBITRATOR), FLRC NO. 77A-101 (OCT.
4, 1978), REPORT NO. 156.
/6/ IN VIEW OF THIS DECISION, FURTHER CONSIDERATION OF WHETHER THIS
PART OF THE AWARD VIOLATES SECTION 11(B) OF THE ORDER IS UNNECESSARY.
6 FLRC 1142; FLRC NO. 78A-65; DECEMBER 28, 1978.
SERVICE EMPLOYEES' INTERNATIONAL UNION,
LOCAL 556, AFL-CIO
(UNION)
AND
SUBMARINE FORCE, U.S. PACIFIC FLEET
AND NAVAL SUBMARINE BASE, PEARL HARBOR,
HAWAII
(ACTIVITY)
FLRC NO. 78A-65
DECISION ON NEGOTIABILITY ISSUES
(SYNOPSIS) FLRC NO. 78A-65
SERVICE EMPLOYEES' INTERNATIONAL UNION, LOCAL 556, AFL-CIO AND
SUBMARINE FORCE, U.S. PACIFIC FLEET AND NAVAL SUBMARINE BASE, PEARL
HARBOR, HAWAII. THE DISPUTE INVOLVED THE NEGOTIABILITY OF UNION
PROPOSALS CONCERNING (1) TEMPORARY ASSIGNMENTS AND TEMPORARY PROMOTIONS
TO HIGHER LEVEL POSITIONS AND (2) THE ASSIGNMENT OF QUALIFIED EMPLOYEES,
WHEN AVAILABLE, TO HIGHER LEVEL POSITIONS.
COUNCIL ACTION (DECEMBER 28, 1978). AS TO (1), THE COUNCIL HELD THAT
THE PROPOSAL WAS OUTSIDE THE AGENCY'S OBLIGATION TO BARGAIN UNDER
SECTION 11(A) OF THE ORDER TO THE EXTENT THAT IT WOULD APPLY TO THE
FILLING OF SUPERVISORY POSITIONS OUTSIDE THE BARGAINING UNIT. AS TO
(2), THE COUNCIL HELD THAT THE PROPOSAL VIOLATED SECTION 12(B)(2) OF THE
ORDER. ACCORDINGLY, PURSUANT TO SECTION 2411.28 OF ITS RULES, THE
COUNCIL SUSTAINED THE AGENCY'S DETERMINATION AS TO THE NONNEGOTIABILITY
OF (1), TO THE EXTENT THAT THE COUNCIL FOUND THE PROPOSAL NONNEGOTIABLE,
AND SUSTAINED THE AGENCY'S DETERMINATION AS TO THE NONNEGOTIABILITY OF
(2).
UNION PROPOSAL I
TEMPORARY ASSIGNMENTS
1. WHEN AN EMPLOYEE IS DETAILED TO A HIGHER LEVEL POSITION IN EXCESS
OF 20 WORK DAYS
WITHIN A CALENDAR YEAR, THE EMPLOYEE WILL BE TEMPORARILY PROMOTED TO
THE HIGHER LEVEL POSITION
COMMENCING WITH THE 21ST DAY IF HE/SHE IS ELIGIBLE AND OTHERWISE
QUALIFIED FOR A TEMPORARY
PROMOTION.
AGENCY DETERMINATION
THE AGENCY DETERMINED THAT THE PROPOSAL IS NONNEGOTIABLE UNDER
SECTION 11(A) TO THE EXTENT THAT, AS INTENDED BY THE UNION, IT WOULD
APPLY TO THE FILLING OF SUPERVISORY POSITIONS OUTSIDE THE BARGAINING
UNIT.
QUESTION HERE BEFORE THE COUNCIL
THE QUESTION IS WHETHER THE PROPOSAL, TO THE EXTENT THAT IT WOULD
APPLY TO THE FILLING OF SUPERVISORY POSITIONS, IS OUTSIDE THE AGENCY'S
OBLIGATION TO BARGAIN UNDER SECTION 11(A) OF THE ORDER.
OPINION
CONCLUSION: THE PROPOSAL IS OUTSIDE THE AGENCY'S OBLIGATION TO
BARGAIN UNDER SECTION 11(A) OF THE ORDER TO THE EXTENT THAT IT WOULD
APPLY TO THE FILLING OF SUPERVISORY POSITIONS OUTSIDE THE BARGAINING
UNIT. ACCORDINGLY, THE AGENCY'S DETERMINATION THAT THE PROPOSAL IS, TO
THAT EXTENT, NONNEGOTIABLE WAS PROPER AND, PURSUANT TO SECTION 2411.28
OF THE COUNCIL'S RULES AND REGULATIONS, IS SUSTAINED.
REASONS: THE UNION PROPOSAL PROVIDES THAT BARGAINING UNIT EMPLOYEES
DETAILED TO HIGHER GRADE LEVEL POSITIONS WILL BE TEMPORARILY PROMOTED TO
THOSE POSITIONS UNDER SPECIFIED CIRCUMSTANCES, NAMELY, WHEN AN EMPLOYEE
IS DETAILED TO A "HIGHER LEVEL POSITION" IN EXCESS OF 20 WORKDAYS AND
THE EMPLOYEE IS ELIGIBLE AND OTHERWISE QUALIFIED FOR THAT POSITION. THE
UNION INDICATES IN ITS APPEAL THAT THE PROPOSAL IS INTENDED TO COVER
DETAILS TO SUPERVISORY POSITIONS OUTSIDE THE BARGAINING UNIT. THE UNION
CONTENDS, IN THIS REGARD, THAT AN EMPLOYEE WHO IS DETAILED OR
TEMPORARILY PROMOTED TO SUCH A POSITION REMAINS THE INCUMBENT OF THE
POSITION FROM WHICH HE OR SHE IS DETAILED OR TEMPORARILY PROMOTED AND A
MEMBER OF THE BARGAINING UNIT. /1/ THUS, THE UNION ARGUES, THE PROPOSAL
DOES NOT RELATE TO A MATTER WHICH IS OUTSIDE THE AGENCY'S OBLIGATION TO
BARGAIN UNDER SECTION 11(A) OF THE ORDER. THE AGENCY, ON THE OTHER
HAND, TAKES THE CONTRARY POSITION THAT THE INTENDED APPLICATION OF THE
PROPOSAL TO SUPERVISORY POSITIONS OUTSIDE THE UNIT RENDERS THE PROPOSAL,
IN THAT RESPECT, OUTSIDE THE AGENCY'S OBLIGATION TO BARGAIN UNDER
SECTION 11(A). IN THE CIRCUMSTANCES OF THIS CASE, WE AGREE WITH THE
AGENCY.
THE COUNCIL HAS CONSISTENTLY HELD THAT PROPOSALS CONCERNING THE
FILLING OF SUPERVISORY POSITIONS OUTSIDE THE BARGAINING UNIT ARE OUTSIDE
THE BARGAINING OBLIGATION ESTABLISHED BY SECTION 11(A) OF THE ORDER.
/2/ MOREOVER, THIS PRINCIPLE APPLIES BOTH TO TEMPORARY AND TO PERMANENT
PROMOTIONS. FOR EXAMPLE, THE COUNCIL HELD, IN THE MARINE CORPS AIR
STATION CASE, THAT A PROPOSAL RELATING TO TEMPORARY PROMOTIONS OF UNIT
EMPLOYEES TO SUPERVISORY POSITIONS, AS IS INVOLVED IN THE PRESENT CASE,
(AS WELL AS TO PERMANENT PROMOTIONS), WAS OUTSIDE THE AGENCY'S
BARGAINING OBLIGATION UNDER SECTION 11(A). /3/ IN THE SAME CASE, THE
COUNCIL LIKEWISE HELD NONNEGOTIABLE UNDER SECTION 11(A) A PROPOSAL
RELATING TO THE FILLING OF VACANT POSITIONS AT, AMONG OTHERS, AN AGENCY
INSTRUMENTALITY LOCATED ON THE SAME BASE BUT NOT INCLUDED IN THE
BARGAINING UNIT. /4/ THUS, UNDER COUNCIL PRECEDENT, IT IS CLEAR THAT
THE DECISIVE FACTOR IN DETERMINING WHETHER A PROPOSAL RELATING TO THE
FILLING OF VACANT POSITIONS IS OUTSIDE THE OBLIGATION TO BARGAIN UNDER
SECTION 11(A) IS WHETHER THE POSITIONS COVERED BY THE PROPOSAL ARE
OUTSIDE THE BARGAINING UNIT (AND NOT, AS THE UNION CONTENDS, THE
TEMPORARY NATURE OR DURATION OF THE PERSONNEL ACTION INVOLVED IN THE
PROPOSAL). /5/ ACCORDINGLY, WE FIND THAT THE UNION PROPOSAL, TO THE
EXTENT THAT IT WOULD APPLY TO DETAILS AND TEMPORARY PROMOTIONS TO
SUPERVISORY POSITIONS OUTSIDE THE BARGAINING UNIT, IS OUTSIDE THE
AGENCY'S OBLIGATION TO BARGAIN UNDER SECTION 11(A) AND, HENCE, TO THAT
EXTENT, IS NONNEGOTIABLE. /6/
UNION PROPOSAL II
TEMPORARY ASSIGNMENTS
. . . .
3. WHEN AVAILABLE, QUALIFIED EMPLOYEES ONLY WILL BE ASSIGNED TO
HIGHER LEVEL POSITIONS.
AGENCY DETERMINATION
THE AGENCY DETERMINED THAT SECTION 3 OF THE PROPOSAL IS NONNEGOTIABLE
UNDER SECTION 12(B)(2) OF THE ORDER.
QUESTION HERE BEFORE THE COUNCIL
THE QUESTION IS WHETHER THE PROPOSAL IS EXCLUDED FROM BARGAINING
UNDER SECTION 12(B)(2) OF THE ORDER.
OPINION
CONCLUSION: THE PROPOSAL VIOLATES SECTION 12(B)(2) OF THE ORDER.
THUS, THE AGENCY DETERMINATION THAT THE PROPOSAL IS NONNEGOTIABLE WAS
PROPER AND, PURSUANT TO SECTION 2411.28 OF THE COUNCIL'S RULES AND
REGULATIONS, IS HEREBY SUSTAINED.
REASONS: SECTION 12(B)(2) 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
. . .
SECTION 12(B) OF THE ORDER ENUMERATES THE RIGHTS RESERVED TO
MANAGEMENT UNDER ANY COLLECTIVE BARGAINING AGREEMENT. SPECIFICALLY, IN
THE VA RESEARCH HOSPITAL CASE THE COUNCIL STATED: /7/
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.
FURTHER, THE COUNCIL RULED IN ITS LONG BEACH NAVAL SHIPYARD DECISION
/8/ THAT:
"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.
THEREFORE, UNDER SECTION 12(B)(2) OF THE ORDER, THE RIGHT TO ASSIGN
EMPLOYEES INCLUDES THE RIGHT TO TEMPORARILY ASSIGN OR TO DETAIL
EMPLOYEES. MOREOVER, AS TO THE USE OF DETAILS BY AGENCY MANAGEMENT,
WITHIN THE FEDERAL SECTOR, GENERALLY, SUCH TEMPORARY ASSIGNMENTS ARE
INTENDED FOR MEETING THE TEMPORARY NEEDS OF THE AGENCY WHEN, FOR
EXAMPLE, NECESSARY SERVICES CANNOT BE OBTAINED THROUGH OTHER PRACTICABLE
MEANS DUE TO EMERGENCIES OCCASIONED BY ABNORMAL WORKLOAD AND SIMILAR
EXIGENCIES; AND FOR OTHER INTERIM SITUATIONS, FOR EXAMPLE, TO
ACCOMPLISH CERTAIN TRAINING PURPOSES, OR PENDING OFFICIAL ASSIGNMENT OR
DESCRIPTION AND CLASSIFICATION OF A NEW POSITION. /9/ THUS, IN THE
FEDERAL SECTOR, MANAGEMENT IS PERMITTED TO DETAIL AN EMPLOYEE TO A
HIGHER GRADED POSITION FOR LESS THAN 60 DAYS WITHOUT DETERMINING THAT
THE EMPLOYEE MEETS THE MINIMUM QUALIFICATIONS STANDARDS FOR SUCH HIGHER
GRADED POSITION AS ESTABLISHED BY THE CIVIL SERVICE COMMISSION. /10/
SECTION 3 OF THE UNION'S PROPOSAL WOULD REQUIRE THAT, WHEN THE AGENCY
DECIDES TO FILL A VACANT "HIGHER LEVEL POSITION" BY TEMPORARILY
ASSIGNING OR DETAILING AN EMPLOYEE TO THAT POSITION, IT MUST ASSIGN ONLY
AN EMPLOYEE IT HAS DETERMINED IS QUALIFIED TO FILL THAT POSITION, IF
SUCH AN EMPLOYEE IS AVAILABLE. THAT IS, THE AGENCY WOULD BE PRECLUDED
FROM DETAILING AN EMPLOYEE WHO MAY NOT BE QUALIFIED TO FILL THE VACANT
POSITION UNTIL IT HAS DETERMINED IF THERE ARE UNIT EMPLOYEES WHO ARE
QUALIFIED TO FILL THAT POSITION AND IF ANY OF THOSE EMPLOYEES ARE
AVAILABLE. IN OUR OPINION, SECTION 3, BY THUS REQUIRING THE AGENCY TO
DETERMINE THE QUALIFICATIONS AND AVAILABILITY OF ITS EMPLOYEES AS A
PRECONDITION OF ITS DECISION MUST BE EXPEDITIOUSLY MADE, WOULD IMPOSE
CONSTRAINTS UPON AGENCY MANAGEMENT'S EXERCISE OF ITS AUTHORITY UNDER
SECTION 12(B)(2) TO TEMPORARILY ASSIGN OR DETAIL EMPLOYEES SO AS, IN
EFFECT, TO NEGATE THAT AUTHORITY. /11/ MOREOVER, IN OTHER RESPECTS,
SECTION 3 AT ISSUE HEREIN IS ANALOGOUS TO THOSE PROPOSALS WHICH
ESTABLISH A "PREFERENCE" FOR A CERTAIN CLASS OF EMPLOYEES AND WHICH THE
COUNCIL HAS HELD NONNEGOTIABLE UNDER SECTION 12(B)(2) ON THE GROUND THAT
THEY DEPRIVE AGENCY MANAGEMENT OF THE REQUIRED DISCRETION INHERENT IN
THE EXERCISE OF ITS RESERVED RIGHTS UNDER THE ORDER. /12/
ACCORDINGLY, BASED ON THE FOREGOING REASONS, WE FIND SECTION 3 OF THE
UNION'S PROPOSAL TO BE VIOLATIVE OF SECTION 12(B)(2) OF THE ORDER, AND,
CONSEQUENTLY, NONNEGOTIABLE.
BY THE COUNCIL.
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
ISSUED: DECEMBER 28, 1978
/1/ THE UNION CITES, INTER ALIA, FEDERAL PERSONNEL MANUAL, CHAP.
300, SUBCHAP. 3-1; CHAP. 335, SUBCHAP. 4-4.
/2/ TEXAS ANG COUNCIL OF LOCALS, AFGE AND STATE OF TEXAS NATIONAL
GUARD, 4 FLRC 153 (FLRC NO. 74A-71 (MAR. 3, 1976), REPORT NO. 100);
AFGE (NATIONAL BORDER PATROL COUNCIL AND NATIONAL INS COUNCIL) AND
IMMIGRATION AND NATURALIZATION SERVICE, U.S. DEPARTMENT OF JUSTICE, 5
FLRC 808 (FLRC NO. 76A-68 (AUG. 31, 1977), REPORT NO. 136);
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, LOCAL
LODGE 1859 AND MARINE CORPS AIR STATION AND NAVAL AIR REWORK FACILITY,
CHERRY POINT, NORTH CAROLINA, FLRC NO. 77A-28 (FEB. 28, 1978), REPORT
NO. 145.
/3/ INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS,
LOCAL LODGE 1859 AND MARINE CORPS AIR STATION AND NAVAL AIR REWORK
FACILITY, CHERRY POINT, NORTH CAROLINA, FLRC NO. 77A-28 (FEB. 28, 1978),
REPORT NO. 145 AT 2-3 OF COUNCIL DECISION.
/4/ ID. AT 6-7 OF COUNCIL DECISION.
/5/ CF. UNITED STATES FOREST SERVICE, SALMON NATIONAL FOREST, SALMON,
IDAHO, A/SLMR NO. 556, 4 FLRC 89 (FLRC NO. 75A-107 (JAN. 22, 1976),
REPORT NO. 96) (SEASONAL SUPERVISORS).
/6/ OF COURSE, THERE IS NO DISPUTE IN THIS CASE AS TO WHETHER THE
PROPOSAL AS IT APPLIES TO POSITIONS IN THE BARGAINING UNIT IS NEGOTIABLE
UNDER THE ORDER. CF. NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL
122 AND VETERANS ADMINISTRATION, ATLANTA REGIONAL OFFICE, ATLANTA,
GEORGIA, FLRC NO. 77A-94 (NOV. 8, 1978), REPORT NO. 159 AT 8-11 OF
COUNCIL DECISION.
/7/ VETERANS ADMINISTRATION INDEPENDENT SERVICE EMPLOYEES UNION AND
VETERANS ADMINISTRATION RESEARCH HOSPITAL, CHICAGO, ILLINOIS, 1 FLRC
227, 230 (FLRC NO. 71A-31 (NOV. 22, 1972), REPORT NO. 31).
/8/ LOCAL 174 INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL
ENGINEERS, AFL-CIO, CLC, AND LONG BEACH NAVAL SHIPYARD, LONG BEACH,
CALIFORNIA, 2 FLRC 158, 161, AT N. 5 (FLRC NO. 73A-16 (JULY 31, 1974),
REPORT NO. 55).
/9/ SEE FEDERAL PERSONNEL MANUAL, CHAP. 300, SUBCHAP. 8-3.
/10/ SEE FEDERAL PERSONNEL MANUAL, CHAP. 300, SUBCHAP. 8-4(E). CF.
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, LOCAL
LODGE 1859 AND MARINE CORPS AIR STATION AND NAVAL AIR REWORK FACILITY,
CHERRY POINT, NORTH CAROLINA, FLRC NO. 77A-28 (FEB. 28, 1978), REPORT
NO. 145 AT 3-6 OF COUNCIL DECISION.
/11/ SEE LOCAL 174 INTERNATIONAL FEDERATION OF PROFESSIONAL AND
TECHNICAL ENGINEERS, AFL-CIO, CLC, AND LONG BEACH NAVAL SHIPYARD, LONG
BEACH, CALIFORNIA, 2 FLRC 158, 162 (FLRC NO. 73A-16 (JULY 31, 1974),
REPORT NO. 55).
/12/ SEE, E.G., INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
WORKERS, LOCAL LODGE 1859 AND MARINE CORPS AIR STATION AND NAVAL AIR
REWORK FACILITY, CHERRY POINT, NORTH CAROLINA, FLRC NO. 77A-28 (FEB. 28,
1978), REPORT NO. 145 AT 9-10 OF COUNCIL DECISION; OVERSEAS EDUCATION
ASSOCIATION, INC. AND DEPARTMENT OF DEFENSE, OFFICE OF DEPENDENTS
SCHOOLS, FLRC NO. 76A-142 (FEB. 28, 1978). REPORT NO. 143 AT 19-20 OF
COUNCIL DECISION; AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
1778 AND MCGUIRE AIR FORCE BASE, NEW JERSEY, FLRC NOS. 77A-18 AND 77A-21
(JAN. 27, 1978), REPORT NO. 142 AT 18-20; AFGE (NATIONAL BORDER PATROL
COUNCIL AND NATIONAL INS COUNCIL) AND IMMIGRATION AND NATURALIZATION
SERVICE, U.S. DEPARTMENT OF JUSTICE, 5 FLRC 808, 823-824 (FLRC NO.
76A-68 (AUG. 31, 1977), REPORT NO. 136); AND NATIONAL MARITIME UNION OF
AMERICA, AFL-CIO AND NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, 5
FLRC 497 (FLRC NO. 76A-79 (JUNE 21, 1977), REPORT NO. 128).
6 FLRC 1136; FLRC NO. 78A-46; DECEMBER 28, 1978.
(SYNOPSIS) FLRC NO. 78A-46
VETERANS ADMINISTRATION HOSPITAL, HOUSTON, TEXAS AND AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1633 (MARLATT, ARBITRATOR).
THE ARBITRATOR FOUND THAT GRIEVANCES FILED BY TWO NONSELECTED EMPLOYEE
APPLICANTS FOR A VACANCY WERE NONARBITRABLE FOR LACK OF ANY ENFORCEABLE
REMEDY. THE ARBITRATOR THEREFORE DISMISSED THE GRIEVANCES. THE UNION
APPEALED TO THE COUNCIL, REQUESTING THAT THE COUNCIL ACCEPT ITS PETITION
FOR REVIEW BASED ON EXCEPTIONS ALLEGING (1) THAT THE ARBITRATOR EXCEEDED
HIS AUTHORITY, AND (2) THAT THE AWARD VIOLATED AN APPROPRIATE
REGULATION.
COUNCIL ACTION (DECEMBER 28, 1978). THE COUNCIL HELD THAT THE
UNION'S PETITION FOR REVIEW FAILED TO DESCRIBE FACTS AND CIRCUMSTANCES
TO SUPPORT ITS EXCEPTIONS. ACCORDINGLY, THE COUNCIL DENIED 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.
DECEMBER 28, 1978
MR. RONALD D. KING, DIRECTOR
CONTRACT AND APPEALS DIVISION
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
1325 MASSACHUSETTS AVENUE, NW.
WASHINGTON, D.C. 20005
RE: VETERANS ADMINISTRATION HOSPITAL, HOUSTON,
TEXAS AND AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL NO. 1633 (MARLATT, ARBITRATOR),
FLRC NO. 78A-46
DEAR MR. KING:
THE COUNCIL HAS CAREFULLY CONSIDERED THE UNION'S PETITION FOR REVIEW
(AS SUPPLEMENTED) /1/ OF THE ARBITRATOR'S AWARD, AND THE AGENCY'S
OPPOSITION THERETO, IN THE ABOVE-ENTITLED CASE.
ACCORDING TO THE ARBITRATOR'S AWARD, THE DISPUTE IN THIS MATTER AROSE
WHEN THE HOUSTON VETERANS ADMINISTRATION HOSPITAL (THE ACTIVITY) POSTED
A VACANCY ANNOUNCEMENT FOR THE POSITION OF MAINTENANCE FOREMAN. A
NUMBER OF EMPLOYEES APPLIED FOR THE JOB AND WERE CONSIDERED BY A
PROMOTION PANEL WHICH, AFTER REVIEWING THE APPLICANTS' PERSONNEL FILES,
CERTIFIED THE FOURTH TOP-RANKING APPLICANTS AS "QUALIFIED" TO THE
SELECTING OFFICIAL. INTERVIEWS WERE THEN CONDUCTED OF THE TOP FOUR
CANDIDATES, ONE OF WHOM WAS SELECTED TO FILL THE VACANCY. TWO OF THE
NONSELECTED EMPLOYEES FILED GRIEVANCES. THE MATTER ULTIMATELY WENT TO
ARBITRATION.
THE ARBITRATOR DID NOT SPECIFICALLY SET FORTH THE ISSUE BEFORE HIM,
BUT IN CONNECTION WITH THE GRIEVANCE HE REFERRED TO ARTICLE XXVI,
SECTION 1 OF THE PARTIES' NEGOTIATED AGREEMENT /2/ CITED TO HIM BY THE
UNION.
IN THE DISCUSSION ACCOMPANYING HIS AWARD THE ARBITRATOR STATED:
THE REAL PROBLEM FOR THE ARBITRATOR IN THIS CASE IS NOT WHETHER THE
MERIT PROMOTION SYSTEM
WAS MANIPULATED, NOR EVEN WHETHER OR NOT (THE SELECTING OFFICIAL) AND
THE OTHER SUPERVISORS
ACTED IN GOOD FAITH. THE REAL PROBLEM, TO WHICH NEITHER PARTY
ADDRESSED ITSELF AT ALL, IS
SIMPLY THIS: ASSUMING THAT THE MERIT PROMOTION SYSTEM PERMITS
PRE-SELECTION OF MANAGEMENT'S
FAVORITES, WHAT CAN AN ARBITRATOR POSSIBLY DO ABOUT IT?
THE ARBITRATOR ALSO STATED THAT "(THE SUCCESSFUL CANDIDATE) WAS DULY
AND LEGALLY APPOINTED TO HIS POSITION UNDER EXISTING LAWS AND
PROCEDURES, AND HAS ACQUIRED A VESTED RIGHT TO HIS JOB UNTIL LAWFULLY
REMOVED, WHETHER OR NOT HE IS QUALIFIED FOR IT." HE CONCLUDED BY SAYING:
I DO NOT WISH TO LEAVE THE IMPRESSION WITH THE UNION THAT ARTICLE
XXVI OF THE AGREEMENT
DEALING WITH MERIT PROMOTIONS IS A DEAD LETTER. MERIT PROMOTIONS
CONSTITUTE A NEGOTIABLE
SUBJECT UNDER EXECUTIVE ORDER 11491, AND THE UNION MAY BE ABLE TO
CORRECT WHAT IT REGARDS AS
ABUSES IN THE PROGRAM BY NEGOTIATING WITH THE HOSPITAL FOR THE FUTURE
PARTICIPATION BY THE
UNION IN THE PROMOTION PROCESS. HOWEVER, THE ARBITRATOR HAS NO POWER
TO MODIFY OR EXPAND THE
LABOR AGREEMENT AS IT IS NOW WRITTEN, EVEN IF SUCH CHANGES WOULD BE
MUTUALLY BENEFICIAL TO
BOTH PARTIES.
THE ARBITRATOR'S AWARD WAS "THAT THE GRIEVANCES IN THIS DISPUTE ARE
NONARBITRABLE FOR LACK OF ANY ENFORCEABLE REMEDY; AND THEY ARE
THEREFORE DISMISSED WITHOUT PREJUDICE TO FURTHER ACTION IN ANY OTHER
APPROPRIATE FORUM."
THE UNION REQUESTS THAT THE COUNCIL ACCEPT ITS PETITION FOR REVIEW OF
THE ARBITRATOR'S AWARD ON THE BASIS OF THE 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 ALLEGES THAT THE ARBITRATOR
EXCEEDED THE SCOPE OF HIS AUTHORITY. IN SUPPORT OF THIS EXCEPTION, THE
UNION REFERS TO THE ARBITRATOR'S "AWARD" THAT "THE GRIEVANCES IN THIS
DISPUTE ARE NON-ARBITRABLE FOR LACK OF ANY ENFORCEABLE REMEDY . . . "
THE UNION STATES IN ITS PETITION FOR REVIEW:
(I)T IS OUR POSITION THAT THE ARBITRATOR EXCEEDED THE SCOPE OF HIS
AUTHORITY IN DECLARING
THE ISSUE TO BE NON-ARBITRABLE. THE ARBITRATOR WAS PRESENTED WITH AN
ISSUE AND REMEDIES BY
THE PARTIES DEALING ONLY WITH THE MERITS OF THE CASE. NO QUESTION OF
ARBITRABILITY WAS RAISED
BY EITHER PARTY. THEREFORE, THE QUESTION OF ARBITRABILITY WAS NOT
BEFORE THE ARBITRATOR. FOR
THE ARBITRATOR TO RULE OUTSIDE THE RANGE OF REMEDIES PRESENTED, WAS
TO EXCEED THE SCOPE OF HIS
AUTHORITY.
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 ARBITRATOR EXCEEDED HIS AUTHORITY. THUS, THE
COUNCIL WILL GRANT A PETITION FOR REVIEW WHERE IT APPEARS THAT THE
EXCEPTION PRESENTS GROUNDS THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY
BY, FOR EXAMPLE, DETERMINING AN ISSUE NOT INCLUDED IN THE QUESTION
SUBMITTED TO ARBITRATION. FEDERAL AVIATION ADMINISTRATION AND
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION (SINCLITICO,
ARBITRATOR), FLRC NO. 77A-52 (JAN. 27, 1978), REPORT NO. 142.
IN THIS CASE, HOWEVER, THE COUNCIL IS OF THE OPINION THAT THE UNION'S
PETITION FAILS TO DESCRIBE FACTS AND CIRCUMSTANCES TO SUPPORT ITS
EXCEPTION. IN THIS REGARD, THE COUNCIL IS OF THE OPINION THAT, CONTRARY
TO THE ASSERTIONS OF THE UNION, THE ARBITRATOR DID, IN FACT, REACH THE
MERITS OF THE DISPUTE BEFORE HIM. THE COUNCIL NOTES THAT THE ARBITRATOR
STATED THAT THE SUCCESSFUL CANDIDATE "WAS DULY AND LEGALLY APPOINTED TO
HIS POSITION UNDER EXISTING LAWS AND PROCEDURES" AND THAT, WITH RESPECT
TO THE NEGOTIATED AGREEMENT PROVISION BEFORE HIM, "THE UNION MAY BE ABLE
TO CORRECT WHAT IT REGARDS AS ABUSES IN THE PROGRAM BY NEGOTIATING WITH
THE HOSPITAL . . . (T)HE ARBITRATOR HAS NO POWER TO MODIFY OR EXPAND
THE LABOR AGREEMENT AS IT IS NOW WRITTEN . . . " THUS, THE ARBITRATOR
SPECIFICALLY ADDRESSED THE SUCCESSFUL CANDIDATE'S APPOINTMENT, FINDING
THAT HE WAS "LEGALLY APPOINTED . . . UNDER EXISTING LAWS AND
PROCEDURES," AND THE AGREEMENT PROVISION INVOLVED, FINDING, IN EFFECT,
NO VIOLATION OF IT SINCE "CHANGES" TO IT WOULD HAVE TO COME THROUGH
"NEGOTIATING WITH THE HOSPITAL." THEREFORE, THE COUNCIL IS OF THE
OPINION THAT THE UNION HAS FAILED TO PRESENT FACTS AND CIRCUMSTANCES TO
SHOW THAT THE ARBITRATOR USED THE TERM "NON-ARBITRABLE" AS A TERM OF ART
RELATING TO THE ARBITRABILITY OF THE GRIEVANCE AND THUS EXCEEDED HIS
AUTHORITY BY ANSWERING A QUESTION NOT SUBMITTED TO HIM AND THEREBY
FAILING TO REACH THE MERITS OF THE GRIEVANCE. /3/ THEREFORE, THE
UNION'S FIRST EXCEPTION PROVIDES NO BASIS FOR ACCEPTANCE OF ITS PETITION
UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE.
IN ITS SECOND EXCEPTION, THE UNION ASSERTS THAT THE AWARD VIOLATES AN
APPROPRIATE REGULATION. IN SUPPORT OF THIS EXCEPTION, THE UNION REFERS
TO A STATEMENT BY THE ARBITRATOR IN THE OPINION ACCOMPANYING HIS AWARD
THAT THERE WAS EVIDENCE THAT THE SUCCESSFUL CANDIDATE HAD BEEN
"PRE-SELECTED" FOR THE PROMOTION. THE UNION ASSERTS THAT THE AWARD
VIOLATES FEDERAL PERSONNEL MANUAL (FPM) CHAPTER 335, SECTION 6-4A(1) /4/
SINCE, IN LIGHT OF THIS "FINDING," THE ARBITRATOR FAILED TO AWARD
APPROPRIATE AFFIRMATIVE REMEDIES.
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 AWARD VIOLATES AN APPROPRIATE REGULATION.
HOWEVER, IN THIS CASE, THE COUNCIL IS OF THE OPINION THAT THE UNION'S
PETITION FAILS TO DESCRIBE FACTS AND CIRCUMSTANCES TO SUPPORT ITS
EXCEPTION. IN THIS REGARD, THE UNION'S ASSERTIONS ARE DIRECTED ONLY TO
THE ARBITRATOR'S STATEMENT REGARDING "PRE-SELECTION" AND ARE PREMISED ON
THE ASSUMPTION THAT THE ARBITRATOR FOUND THAT AN ACTION REQUIRING
"CORRECTIVE ACTION" WITHIN THE MEANING OF FPM CHAPTER 335 HAD OCCURRED.
HOWEVER, AS PREVIOUSLY INDICATED, THE ARBITRATOR DID NOT MAKE SUCH A
DETERMINATION, FINDING INSTEAD THAT THE SUCCESSFUL CANDIDATE WAS "DULY
AND LEGALLY APPOINTED TO HIS POSITION" AND, IN EFFECT, THAT THERE HAD
BEEN NO VIOLATION OF THE COLLECTIVE BARGAINING AGREEMENT. THEREFORE,
THE UNION'S SECOND EXCEPTION PROVIDES NO BASIS FOR ACCEPTANCE OF ITS
PETITION UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE.
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 THE COUNCIL'S RULES OF PROCEDURE.
BY THE COUNCIL.
SINCERELY,
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
CC: J. ADAMS
VA
/1/ THE UNION'S REQUEST TO SUPPLEMENT ITS PETITION FOR REVIEW,
OPPOSED BY THE AGENCY, HAS BEEN GRANTED PURSUANT TO SECTION 2411.52 OF
THE COUNCIL'S RULES OF PROCEDURE.
/2/ ACCORDING TO THE ARBITRATOR, ARTICLE XXVI, SECTION 1 OF THE LABOR
AGREEMENT PROVIDES IN PART:
THE PRINCIPLES OF THE MERIT PROMOTION PROGRAM WILL BE FOLLOWED AT
THIS HOSPITAL
. . . MANAGEMENT AT ALL LEVELS IS RESPONSIBLE FOR HELPING EMPLOYEES
TO IMPROVE PERFORMANCE AND
THEREBY IMPROVE THEIR PROMOTION OPPORTUNITIES. THE OBJECTIVE OF THE
PROMOTION PLAN WILL BE TO
FILL POSITIONS IN THE UNIT FROM AMONG THE BEST QUALIFIED EMPLOYEES
WITHOUT REGARD TO RACE,
COLOR, RELIGION, SEX, OR NATIONAL ORIGIN OR AGE.
/3/ IT WOULD APPEAR THAT, DESPITE FINDING THE SUCCESSFUL CANDIDATE
LEGALLY APPOINTED, THE ARBITRATOR WAS CONCERNED WITH THE SCOPE OF AN
ARBITRATOR'S AUTHORITY TO FASHION APPROPRIATE REMEDIES IN THE FEDERAL
SECTOR. THIS IS FURTHER SUPPORTED BY A LETTER FROM THE ARBITRATOR DATED
APPROXIMATELY 6 MONTHS AFTER THE ISSUANCE OF HIS AWARD AND SUBMITTED TO
THE COUNCIL IN THE UNION'S SUPPLEMENT TO ITS PETITION FOR REVIEW. IN
HIS LETTER THE ARBITRATOR STATES THAT HE HAD "COME ACROSS" TWO COUNCIL
DECISIONS REGARDING REMEDIES IN THE FEDERAL SECTOR PERTAINING TO
PROMOTION ACTIONS, AND THAT "(N)EITHER OF THESE DECISIONS WERE CALLED TO
MY ATTENTION AT THE TIME THE CASE WAS SUBMITTED." HOWEVER, FAILURE OF
THE PARTIES TO SUBMIT TO AN ARBITRATOR, DURING AN ARBITRATION HEARING,
REMEDIES AVAILABLE TO THE ARBITRATOR IF THERE WERE A FINDING IN FAVOR OF
THE AGGRIEVED PARTY, OR AN ARBITRATOR'S UNAWARENESS OF AVAILABLE
REMEDIES, DOES NOT CONSTITUTE A BASIS FOR COUNCIL ACCEPTANCE OF A
PETITION FOR REVIEW OF AN ARBITRATOR'S AWARD. FURTHER, IT DOES NOT
PROVIDE A BASIS FOR THE COUNCIL TO DIRECT, AS REQUESTED BY THE UNION IN
ITS SUPPLEMENT, THE RESUBMISSION OF THE AWARD TO THE ARBITRATOR. SEE,
AS TO THE COUNCIL DIRECTING THE RESUBMISSION OF AN ARBITRATION AWARD,
MARE ISLAND NAVAL SHIPYARD AND MARE ISLAND NAVY YARD METAL TRADES
COUNCIL, AFL-CIO (DURHAM, ARBITRATOR), 4 FLRC 143 (FLRC NO. 74A-64 (MAR.
3, 1976), REPORT NO. 100).
/4/ THE UNION CITES THE FOLLOWING PART OF FPM CHAPTER 335, SECTION
6-4A(1):
FAILURE TO ADHERE STRICTLY TO LAWS, COMMISSION REGULATIONS AND
INSTRUCTIONS, AGENCY
POLICIES AND GUIDELINES, AND AGENCY PROMOTION PLANS IS TO BE
RECTIFIED PROMPTLY BY THE
COMMISSION OR THE AGENCY INVOLVED.
6 FLRC 1128; FLRC NO. 78A-30; DECEMBER 28, 1978.
U.S. CUSTOMS SERVICE, REGION VII,
OFFICE OF THE REGIONAL COMMISSIONER
AND
NATIONAL TREASURY EMPLOYEES UNION
AND NTEU CHAPTER 123
FLRC NO. 78A-30
DECISION ON APPEAL FROM ARBITRATION AWARD
(SYNOPSIS) FLRC NO. 78A-30
U.S. CUSTOMS SERVICE, REGION VII, OFFICE OF THE REGIONAL COMMISSIONER
AND NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 123 (GENTILE,
ARBITRATOR). THE ARBITRATOR FOUND THAT THE ACTIVITY VIOLATED THE
PARTIES' AGREEMENT BY DENYING REGULAR OVERTIME PAY UNDER THE FEDERAL
EMPLOYEES PAY ACT TO CUSTOMS PATROL OFFICERS (CPOS) ON TEMPORARY
ASSIGNMENT TO U.S. COAST GUARD CUTTERS FOR A PORTION OF THE TIME SPENT
ON SUCH ASSIGNMENTS. AS A REMEDY, THE ARBITRATOR AWARDED THE AFFECTED
CPOS APPROPRIATE COMPENSATION. THE COUNCIL ACCEPTED THE AGENCY'S
PETITION FOR REVIEW WHICH TOOK EXCEPTION TO THE AWARD ON THE GROUNDS
THAT THE AWARD VIOLATED APPLICABLE LAW AND APPROPRIATE REGULATION. THE
COUNCIL ALSO GRANTED THE AGENCY'S REQUEST FOR A STAY. (REPORT NO. 151)
COUNCIL ACTION (DECEMBER 28, 1978). BASED UPON A DECISION OF THE
COMPTROLLER GENERAL, RENDERED IN RESPONSE TO THE COUNCIL'S REQUEST, THE
COUNCIL HELD THAT THE AWARD DID NOT VIOLATE APPLICABLE LAW AND
APPROPRIATE REGULATION. ACCORDINGLY, PURSUANT TO SECTION 2411.37(B) OF
ITS RULES OF PROCEDURE, THE COUNCIL SUSTAINED THE AWARD AND VACATED THE
STAY.
BACKGROUND OF CASE
BASED UPON THE FINDINGS OF THE ARBITRATOR AND THE RECORD BEFORE THE
COUNCIL, IT APPEARS THAT THE ACTIVITY ASSIGNED A NUMBER OF CUSTOMS
PATROL OFFICERS TO PERFORM CERTAIN DUTIES ABOARD U.S. COAST GUARD
CUTTERS FOR PERIODS OF TIME UP TO 3 DAYS. THE CUSTOMS PATROL OFFICERS
WERE ASSIGNED TO 8-HOUR WORK SHIFTS WHILE SERVING ON THEIR TOURS OF DUTY
AND, IN ADDITION, THEY PERFORMED WORK ASSIGNMENTS ON OVERTIME. THE
ACTIVITY TREATED THIS OVERTIME AS ADMINISTRATIVELY UNCONTROLLABLE
OVERTIME AND COMPENSATED THE CUSTOMS PATROL OFFICERS, WHO WERE ELIGIBLE
TO RECEIVE COMPENSATION FOR OVERTIME UNDER THE LAW GOVERNING
ADMINISTRATIVELY UNCONTROLLABLE OVERTIME, /1/ ACCORDINGLY.
A GRIEVANCE WAS FILED CHALLENGING THE VALIDITY OF THE ACTIVITY'S
DETERMINATION THAT THE CUSTOMS PATROL OFFICERS WOULD BE COMPENSATED FOR
THEIR CUTTER DUTY OVERTIME UNDER THE ADMINISTRATIVELY UNCONTROLLABLE
OVERTIME PROVISIONS. THE GRIEVANTS CLAIMED THAT THEY WERE ENTITLED TO
OVERTIME COMPENSATION AT THE RATE OF ONE AND ONE-HALF TIMES THEIR BASIC
HOURLY RATE OF PAY. THE GRIEVANCE WAS NOT RESOLVED AND THE MATTER WENT
TO ARBITRATION.
ACCORDING TO THE ARBITRATOR, THE PARTIES STIPULATED TO THE FOLLOWING
ISSUE:
DID MANAGEMENT VIOLATE ARTICLE 23, SECTION 1 /2/ OF THE NEGOTIATED
AGREEMENT BY DENYING
REGULAR OVERTIME PAY UNDER THE FEDERAL EMPLOYEES PAY ACT /3/ TO
CUSTOMS PATROL OFFICERS ON
TEMPORARY ASSIGNMENT TO U.S. COAST GUARD CUTTERS?
IN FINDING THAT THE ACTIVITY VIOLATED ARTICLE 23, SECTION 1 OF THE
NEGOTIATED AGREEMENT, THE ARBITRATOR NOTED, AMONG OTHER THINGS, THAT THE
WORK ASSIGNMENT "WAS REASONABLY SUBJECT TO ADVANCE SCHEDULING, AT LEAST
IN PART, BECAUSE IT WAS KNOWN THAT IT WOULD RECUR ON SUCCESSIVE DAYS."
IN THE ARBITRATOR'S VIEW, AT LEAST SOME OF THE WORK IN QUESTION WAS
"REGULARLY SCHEDULED OVERTIME" AND COMPENSABLE THERE UNDER 5 U.S.C.
5542. AS HIS AWARD, THE ARBITRATOR PROVIDED:
MANAGEMENT VIOLATED ARTICLE 23, SECTION 1 OF THE NEGOTIATED AGREEMENT
BY DENYING REGULAR
OVERTIME PAY UNDER THE FEDERAL EMPLOYEES PAY ACT TO CUSTOMS PATROL
OFFICERS ON TEMPORARY
ASSIGNMENT TO U.S. COAST GUARD CUTTERS FOR FOUR HOURS OUT OF EACH
TWENTY-FOUR HOUR PERIOD OF
TIME SPENT IN SUCH AN ACTIVITY.
THE AFFECTED CPOS SHOULD BE APPROPRIATELY COMPENSATED IN KEEPING WITH
THE ABOVE AWARD.
AGENCY'S APPEAL TO THE COUNCIL
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 WHICH TOOK EXCEPTION TO THE
ARBITRATOR'S AWARD ON THE GROUNDS THAT THE AWARD VIOLATES APPLICABLE LAW
AND APPROPRIATE REGULATION. /4/ ONLY THE AGENCY FILED A BRIEF.
OPINION
SECTION 2411.37(A) OF THE COUNCIL'S RULES OF PROCEDURE PROVIDES:
(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 WHICH TOOK EXCEPTION TO THE ARBITRATOR'S AWARD ON THE GROUNDS
THAT THE AWARD VIOLATES APPLICABLE LAW AND APPROPRIATE REGULATION.
BECAUSE THIS CASE INVOLVES AN ISSUE WITHIN THE JURISDICTION OF THE
COMPTROLLER GENERAL'S OFFICE, THE COUNCIL REQUESTED FROM HIM A DECISION
AS TO WHETHER THE ARBITRATOR'S AWARD VIOLATES APPLICABLE LAW AND
APPROPRIATE REGULATION. THE COMPTROLLER GENERAL'S DECISION IN THE
MATTER, B-192727, DECEMBER 19, 1978, IS SET FORTH BELOW:
THIS IS IN RESPONSE TO A REQUEST FROM THE FEDERAL LABOR RELATIONS
COUNCIL (FLRC) FOR OUR
OPINION CONCERNING AN ARBITRATOR'S AWARD OF OVERTIME PAY RENDERED IN
A GRIEVANCE-ARBITRATION
HEARING BETWEEN THE U.S. CUSTOMS SERVICE, REGION VII, AND THE
NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 123 (GENTILE, ARBITRATOR), FLRC NO. 78A-30.
THE DISPUTE WHICH WAS THE SUBJECT OF THAT ARBITRATION CONCERNED THE
PROPER RATE OF OVERTIME
PAY FOR CUSTOMS PATROL OFFICERS (CPOS) IN SAN DIEGO, CALIFORNIA, WHO,
DURING MAY AND JUNE
1976, WERE ASSIGNED TO ACCOMPANY THE CREWS OF U.S. COAST GUARD
CUTTERS ON BOARD AND SEARCH
MISSIONS. THE OFFICERS' SUPERVISOR ASSIGNED THEM TO 8-HOUR SHIFTS
PER DAY, BUT THE
UNREBUTTED TESTIMONY WAS THAT THE OFFICERS ACTUALLY WORKED 18-20
HOURS PER DAY WHILE ON
BOARD. THE ASSIGNED DUTIES OF THE CPOS WERE TO ASSIST IN ALL
BOARDINGS, AND THEY WERE ALSO
DIRECTED BY THE COMMANDER OF THE CUTTER TO ACT AS OBSERVERS AND AS
HELMSMEN. THE CPOS
RECEIVED ADMINISTRATIVELY UNCONTROLLABLE OVERTIME PAY (AUO) ON AN
ANNUAL BASIS AS PROVIDED FOR
BY 5 U.S.C. 5545(C)(2)(1976). THE CPOS ALLEGED THAT FOR THE DUTY ON
BOARD THE CUTTERS THEY
WERE ENTITLED TO REGULAR OVERTIME PAY (TIME-AND-ONE-HALF) PURSUANT TO
THE FEDERAL EMPLOYEES
PAY ACT, 5 U.S.C. 5542(1976). A GRIEVANCE WAS FILED, IN WHICH UNION
REPRESENTATIVES CLAIMED
THAT BY DENYING CPOS TIME-AND-ONE-HALF, MANAGEMENT VIOLATED ARTICLE
23, SECTION 1 OF THE
NEGOTIATED AGREEMENT WHICH PROVIDES IN FULL THAT "(E)MPLOYEES WHEN
ASSIGNED OVERTIME WILL BE
COMPENSATED IN ACCORDANCE WITH APPLICABLE LAWS AND REGULATIONS."
SECTION 5542 OF TITLE 5, UNITED STATES CODE (1976), REQUIRES THAT A
GENERAL SCHEDULE
EMPLOYEE'S HOURS OF WORK IN EXCESS OF THE STANDARD 8-HOUR DAY OR
40-HOUR WORKWEEK, WHICH HAVE
BEEN OFFICIALLY ORDERED OR APPROVED, MUST BE COMPENSATED AT AN HOURLY
RATE EQUAL TO ONE AND
ONE-HALF TIMES THE EMPLOYEE'S BASIC HOURLY COMPENSATION, OR OF THE
MINIMUM RATE OF GS-10 IF
HIS BASIC RATE EXCEEDS THAT RATE. HOWEVER, ACCORDING TO 5 U.S.C.
5545(C)(2), WHEN A GENERAL
SCHEDULE EMPLOYEE'S HOURS OF DUTY EXCEED THE BASIC WORKWEEK AND
CANNOT BE CONTROLLED
ADMINISTRATIVELY, AN AGENCY MAY PROVIDE FOR THE PAYMENT OF PREMIUM
PAY NOT TO EXCEED 25
PERCENT OF HIS BASIC ANNUAL RATE OF COMPENSATION. WHERE, AS IN THIS
CASE, SUCH A
DETERMINATION IS MADE, THE PREMIUM PAY FOR SUCH ADMINISTRATIVELY
UNCONTROLLABLE OVERTIME IS IN
LIEU OF ALL OTHER PREMIUM COMPENSATION EXCEPT THAT PAYABLE FOR
REGULARLY SCHEDULED OVERTIME,
NIGHT, AND SUNDAY DUTY, AND FOR HOLIDAY DUTY.
THE ARBITRATOR FOUND: (1) THAT THE AGENCY WAS NOTIFIED AHEAD OF TIME
TO SCHEDULE THIS TYPE
OF DUTY ASSIGNMENT; (2) THAT THESE ASSIGNMENTS TO CUTTERS WERE
REGULARLY SCHEDULED IN ADVANCE
FOR DUTY LASTING 2 TO 3 DAYS; (3) THAT THE AGENCY KNEW THE NATURE OF
THE DUTIES AND TASKS TO
BE PERFORMED, THAT MANY OF THESE ACTIVITIES WOULD INVOLVE A
SUBSTANTIAL AMOUNT OF OVERTIME,
AND THAT THIS OVERTIME WOULD RECUR ON SUBSEQUENT DAYS; AND (4) THAT
THE AGENCY KNEW OR SHOULD
HAVE KNOWN THAT THE BOARDING ACTIVITIES WOULD TAKE PLACE OUTSIDE THE
ASSIGNED 8-HOUR SHIFT AND
THAT THE CPOS WOULD BE REQUIRED TO TAKE PART IN THESE BOARDINGS.
AS TO WHETHER THE QUESTIONED OVERTIME WAS AUTHORIZED, THE ARBITRATOR,
RELYING ON THE
RATIONALE OF FOX V. UNITED STATES, 416 F.SUPP. 593 (E.D. VA. 1976),
STATED THAT OVERTIME
PERFORMED WITH THE KNOWLEDGE AND INDUCEMENT OF SUPERVISORS IS DEEMED
TO OFFICIALLY ORDERED OR
APPROVED, AND HE CONCLUDED THAT THE SUPERVISORS HERE "HAD FULL
KNOWLEDGE AT THE TIME OF THE
ADVANCE ASSIGNMENT THAT AN 8-HOUR SHIFT WOULD NOT COVER THE INTENDED
ACTIVITIES."
THE ARBITRATOR FOUND THAT THE CPOS WERE ENTITLED TO BE PAID TIME AND
A HALF FOR 4 HOURS
STATING:
"THE SCHEDULING OF PERSONNEL MUST BE ACCOMPLISHED TO MAXIMIZE
EFFICIENCY AND MEET THE KNOWN
NEEDS OF THE PARTICULAR OPERATION. TO KNOWINGLY SCHEDULE A SHIFT
ASSIGNMENT, WHICH IS THE
EXCLUSIVE RESPONSIBILITY OF THE AGENCY'S SUPERVISION, THAT CLEARLY
WILL NOT APPROACH THE
MEETING OF THE TIME DEMANDS OF THE ASSIGNMENT AND THEN TO CLAIM ALL
TIME OUTSIDE THIS
ESTABLISHED SCHEDULE AS AUO TIME IS MOST INAPPROPRIATE AND NOT IN
KEEPING WITH THE APPLICABLE
LAWS AND REGULATIONS. THE APPLICATION OF LAWS AND REGULATIONS
PRESUMES THE USE OF SCHEDULING
IN KEEPING WITH THE KNOWN NEEDS OF AN ACTIVITY AND NOT BE (SIC)
UTILIZED TO CIRCUMVENT OTHER
PAY REQUIREMENTS AND THE PROPER COMPENSATION OF EMPLOYEES. THE
ASSIGNMENT IN QUESTION WAS
REASONABLY SUBJECT TO ADVANCE SCHEDULING, AT LEAST IN PART, BECAUSE
IT WAS KNOWN THAT IT WOULD
RECUR ON SUCCESSIVE DAYS. BASED ON THE ABOVE, IT APPEARED THAT IN
THIS RATHER PARTICULAR
SITUATION AN ADDITIONAL FOUR HOURS PER DAY WOULD MEET THE COMPTROLLER
GENERAL'S DEFINITION OF
REGULARLY SCHEDULED OVERTIME; THUS, A VIOLATION OF ARTICLE 23,
SECTION 1, MUST BE FOUND."
ACCORDINGLY, THE ARBITRATOR AWARDED THE CPOS REGULAR OVERTIME PAY FOR
4 HOURS EACH DAY OF
THEIR ASSIGNMENTS TO THE COAST GUARD CUTTERS.
THE CUSTOMS SERVICE CONTENDS THAT THE ARBITRATOR'S AWARD VIOLATES 5
U.S.C. 5545(C)(2) AND
THE IMPLEMENTING CIVIL SERVICE COMMISSION REGULATIONS BECAUSE THE 4
HOURS DOES NOT FALL WITHIN
THE COMPTROLLER GENERAL'S DEFINITION OF REGULARLY SCHEDULED OVERTIME,
AS OVERTIME DULY
AUTHORIZED IN ADVANCE AND SCHEDULED TO RECUR ON SUCCESSIVE DAYS OR
AFTER SPECIFIED
INTERVALS. SEE 48 COMP.GEN. 334.
IN DECIDING CASES ARISING UNDER THE FEDERAL LABOR RELATIONS PROGRAM
WE HAVE STATED, ON
SEVERAL OCCASIONS THAT WE WILL OVERTURN AN ARBITRATOR'S AWARD ONLY IF
THE AGENCY HEAD'S OWN
DECISION TO TAKE THE SAME ACTION WOULD BE DISALLOWED BY THIS OFFICE,
PROVIDED THAT THE AWARD
IS NOT CONTRARY TO APPLICABLE LAWS AND REGULATIONS. SEE NATIONAL
LABOR RELATIONS BOARD, 54
COMP.GEN. 312, 316(1974). IN ROSS AND SQUIRE, B-191266, JUNE 12,
1978, (57 COMP.GEN. 536,
541), WE SAID THAT, IN RULING ON ARBITRATION AWARDS, "WE GENERALLY
WILL NOT RULE UPON ANY
EXCEPTIONS TO THE ARBITRATOR'S AWARD RELATING TO THE FACTS, AND THUS
* * * WE SHALL LIMIT OUR
CONSIDERATION TO THE LEGALITY OF IMPLEMENTING THE AWARD BASED ON THE
FACTS AS FOUND BY THE
ARBITRATOR * * * ."
IN THE PRESENT CASE THE ARBITRATOR SPECIFICALLY FOUND, BASED ON THE
TESTIMONY BEFORE HIM,
THAT THE CUSTOMS SERVICE HAD SCHEDULED THE VESSEL ASSIGNMENTS IN
ADVANCE WITH KNOWLEDGE THAT
THE REQUIRED DUTIES ON BOARD WOULD INVOLVE A SUBSTANTIAL AMOUNT OF
OVERTIME AND THAT THE
SUPERVISORS MAKING THE SCHEDULES "HAD FULL KNOWLEDGE AT THE TIME OF
ADVANCE ASSIGNMENT THAT AN
EIGHT HOUR SHIFT WOULD NOT COVER THE INTENDED ACTIVITIES." HE THEN
CONCLUDED, THAT TO
KNOWINGLY SCHEDULE A SHIFT THAT CLEARLY WILL NOT MEET THE TIME
DEMANDS OF THE ASSIGNMENT WAS
NOT IN KEEPING WITH APPLICABLE LAWS AND REGULATIONS. TO REMEDY THIS
VIOLATION HE ORDERED THAT
THE GRIEVANTS BE COMPENSATED FOR AN EXTRA 4 HOURS PER DAY OF
REGULARLY SCHEDULED OVERTIME.
APPLYING THE STANDARDS STATED ABOVE FOR JUDGING ARBITRATOR'S AWARDS,
WE MUST UPHOLD THE
LEGALITY OF THE AWARD BASED ON THE FACTS AS FOUND BY THE ARBITRATOR,
PROVIDED THAT IT IS NOT
CONTRARY TO APPLICABLE LAWS OR REGULATIONS. UNDER THE GOVERNING
STATUTE, 5 U.S.C. 5545(C)(2),
THE GRIEVANTS MAY BE PAID FOR THE 4 HOURS OF REGULAR OVERTIME IN
ADDITION TO THEIR AUO PREMIUM
PAY ONLY IF THE 4 HOURS CONSTITUTES "REGULARLY SCHEDULED OVERTIME"
DUTY.
WE CONCLUDE THAT THE OVERTIME IN QUESTION DOES MEET THE TEST OF
"REGULARLY SCHEDULED." OUR
DECISIONS ESTABLISH THAT A 12-HOUR SHIFT AUTHORIZED IN ADVANCE AND
SCHEDULED TO RECUR ON
SUCCESSIVE DAYS OR AFTER SPECIFIED INTERVALS IS REGULARLY SCHEDULED
OVERTIME. 48
COMP.GEN. 334(1968). HERE IT WAS KNOWN THAT THE ADDITIONAL TIME
WOULD BE REQUIRED DURING EACH
DAY OF VESSEL DUTY AND THE AGENCY COULD HAVE SCHEDULED IT IN ADVANCE.
THESE FACTS PLACE THE
PRESENT CASE IN LINE WITH AVILES V. UNITED STATES, 151 CT.CL. 1,
8(1960). THERE THE COURT OF
CLAIMS ADDRESSED A SIMILAR SITUATION WHERE THE EMPLOYEES HAD NO
CHOICE BUT TO WORK OVERTIME ON
A REGULAR BASIS. THE COURT FOUND THAT THE AGENCY COULD HAVE FORMALLY
SCHEDULED TOURS OF DUTY
WHICH INCLUDED THE OVERTIME WHICH IT KNEW WOULD BE REQUIRED AND THAT
THE MERE FACT OF OMITTING
OVERTIME FROM THE SCHEDULED TOURS OF DUTY DID NOT MAKE IT OCCASIONAL
OR IRREGULAR. ALTHOUGH
AVILES INVOLVED NIGHT DIFFERENTIAL PAYMENTS RATHER THAN OVERTIME PAY,
WE THINK THE PRINCIPLE
STATED THEREIN APPLIES EQUALLY TO THE CASE AT BAR.
WE ALSO FIND SUPPORT FOR THE ARBITRATOR'S AWARD IN OUR "SKY MARSHAL"
CASES. IN B-151168,
MAY 25, 1976, SECRET SERVICE AGENTS WERE TEMPORARILY ASSIGNED TO
SECURITY DUTY ABOARD
COMMERCIAL AIRPLANES TO DETER AIRPLANE HIJACKING. WHILE THE TREASURY
DEPARTMENT DID NOT
PREPARE DEFINITE SCHEDULES FOR OVERTIME, THAT FACT WAS FOUND NOT TO
BE CONCLUSIVE SINCE THE
AGENTS RECEIVED ADVANCE SCHEDULES OF FLIGHTS WHICH FREQUENTLY
REQUIRED OVERTIME
DUTY. ACCORDINGLY, BASED ON THE FACTS OF THAT CASE WE FOLLOWED THE
DECISION OF THE
U.S. DISTRICT COURT (SOUTHERN DISTRICT OF OHIO, CIVIL NO. 4082,
FEBRUARY 23, 1973), IN ROTHGEB
V. STAATS, AND HELD THAT THE "INFLIGHT" OVERTIME CLAIMED BY THE
AGENTS WAS REGULARLY SCHEDULED
AND COMPENSABLE AT TIME AND ONE-HALF RATES UNDER 5 U.S.C. 5542. SEE
ALSO, B-178261, JULY 7,
1977.
AS SHOWN BY THE FOREGOING CASES, THE MATTER OF "UNCONTROLLABLE"
VERSUS "REGULARLY
SCHEDULED" OVERTIME IS ALWAYS A DIFFICULT DETERMINATION. IN SEVERAL
OTHER COURT CASES THE
RESULT HAS DEPENDED ON THE PARTICULAR FACTS BEFORE THE COURT. SEE
ANDERSON V. UNITED STATES,
201 CT.CL. 660(1973) AND FOX V. UNITED STATES, 416 F.SUPP. 593 (E.D.
VA. 1976). COMPARE
BURICH V. UNITED STATES, 366 F.2D 984 (CT. CL. 1966).
IN THE INSTANT CASE, THE ARBITRATOR WAS CAREFUL TO LIMIT THE HOLDING
TO THE PARTICULAR
FACTS BEFORE HIM AND TO TAILOR HIS AWARD TO THOSE FACTS. WHILE WE
RECOGNIZE THAT THERE IS A
BASIS FOR THE VIEW THAT THE EXTRA WORK PERFORMED BY THE CUSTOMS
PATROL OFFICERS WAS
UNCONTROLLABLE AND NOT REGULARLY SCHEDULED, WE BELIEVE THAT THE
ARBITRATOR'S CONCLUSION TO THE
CONTRARY IS SUPPORTED BY THE CASES CITED ABOVE.
WE, THEREFORE, CONCLUDE THAT THE ARBITRATOR'S AWARD OF 4 HOURS PER
DAY REGULAR OVERTIME PAY
TO THE CUSTOMS PATROL OFFICERS IN THIS CASE IS NOT CONTRARY TO THE
APPLICABLE LAWS AND
REGULATIONS AND MAY BE IMPLEMENTED.
BASED UPON THE FOREGOING DECISION OF THE COMPTROLLER GENERAL, THE
COUNCIL CONCLUDES THAT THE ARBITRATOR'S AWARD IN THIS CASE DOES NOT
VIOLATE APPLICABLE LAW AND APPROPRIATE REGULATION.
CONCLUSION
FOR THE FOREGOING REASONS, AND 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.
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
ISSUED: DECEMBER 28, 1978
/1/ THE APPLICABLE LAW, 5 U.S.C. 5545(C)(2)(1976) PROVIDES, IN
PERTINENT PART:
(C) THE HEAD OF AN AGENCY, WITH THE APPROVAL OF THE CIVIL SERVICE
COMMISSION, MAY PROVIDE
THAT--
. . . .
(2) AN EMPLOYEE IN A POSITION IN WHICH THE HOURS OF DUTY CANNOT BE
CONTROLLED
ADMINISTRATIVELY, AND WHICH REQUIRES SUBSTANTIAL AMOUNTS OF
IRREGULAR, UNSCHEDULED, OVERTIME
DUTY WITH THE EMPLOYEE GENERALLY BEING RESPONSIBLE FOR RECOGNIZING,
WITHOUT SUPERVISION,
CIRCUMSTANCES WHICH REQUIRE HIM TO REMAIN ON DUTY, SHALL RECEIVE
PREMIUM PAY FOR THIS DUTY ON
AN ANNUAL BASIS INSTEAD OF PREMIUM PAY PROVIDED BY OTHER PROVISIONS
OF THIS SUBCHAPTER, EXCEPT
FOR REGULARLY SCHEDULED OVERTIME, NIGHT, AND SUNDAY DUTY, AND FOR
HOLIDAY DUTY.
/2/ ACCORDING TO THE ARBITRATOR, ARTICLE 23, SECTION 1 PROVIDES:
"EMPLOYEES WHEN ASSIGNED OVERTIME WILL BE COMPENSATED IN ACCORDANCE WITH
APPLICABLE LAWS AND REGULATIONS."
/3/ THE APPLICABLE LAW, 5 U.S.C. 5542(A)(1976), PROVIDES IN PERTINENT
PART:
(H)OURS 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
AND SHALL BE PAID FOR, EXCEPT AS OTHERWISE PROVIDED BY THIS
SUBCHAPTER, AT (ONE AND ONE-HALF
TIMES THE HOURLY RATE OF APPROPRIATE PAY) . . .
/4/ PURSUANT TO SECTION 2411.47(F) OF THE COUNCIL'S RULES OF
PROCEDURE, THE COUNCIL GRANTED THE AGENCY'S REQUEST FOR A STAY OF THE
AWARD PENDING DETERMINATION OF THE APPEAL.
6 FLRC 1119; FLRC NO. 78A-21; DECEMBER 28, 1978.
ANTILLES CONSOLIDATED EDUCATION ASSOCIATION
AND
ANTILLES CONSOLIDATED EDUCATION ASSOCIATION
FLRC NO. 78A-21
DECISION ON APPEAL FROM ARBITRATION AWARD
(SYNOPSIS) FLRC NO. 78A-21
ANTILLES CONSOLIDATED SCHOOL SYSTEM AND ANTILLES CONSOLIDATED
EDUCATION ASSOCIATION (KANZER, ARBITRATOR). THE ARBITRATOR DETERMINED
THAT UNDER THE RELEVANT PROVISION OF THE PARTIES' AGREEMENT, THE
TEACHER-GRIEVANT, AT THE TIME OF HIS TERMINATION IN CONNECTION WITH A
REDUCTION-IN-FORCE, POSSESSED THE BASIC QUALIFICATIONS TO TEACH A
PARTICULAR SUBJECT, WHICH WAS BEING TAUGHT BY A MORE RECENTLY HIRED
TEACHER. THE ARBITRATOR THEREFORE SUSTAINED THE GRIEVANCE AND DIRECTED,
AMONG OTHER THINGS, THAT THE GRIEVANT BE REINSTATED RETROACTIVELY TO A
PARTICULAR DATE WITH BACKPAY, CONTINGENT UPON THE GRIEVANT'S COMPLETION
OF CERTAIN REQUIRED COURSE WORK. THE COUNCIL ACCEPTED THE AGENCY'S
PETITION FOR REVIEW INSOFAR AS IT RELATED TO THE AGENCY'S EXCEPTION
WHICH ALLEGED THAT THE AWARD VIOLATED THE BACK PAY ACT OF 1966. THE
COUNCIL ALSO GRANTED THE AGENCY'S REQUEST FOR A STAY. (REPORT NO. 151)
COUNCIL ACTION (DECEMBER 28, 1978). BASED UPON A DECISION OF THE
COMPTROLLER GENERAL, RENDERED IN RESPONSE TO THE COUNCIL'S REQUEST, THE
COUNCIL HELD THAT THE PORTION OF THE ARBITRATOR'S AWARD WHICH DIRECTED
THE PAYMENT OF BACKPAY IN CONNECTION WITH A RETROACTIVE REINSTATEMENT
WAS VIOLATIVE OF THE BACK PAY ACT. ACCORDINGLY, PURSUANT TO SECTION
2411.37(B) ITS RULES OF PROCEDURE, THE COUNCIL MODIFIED THE AWARD BY
STRIKING THE PORTION THEREOF FOUND VIOLATIVE OF THE BACK PAY ACT. AS SO
MODIFIED, THE COUNCIL SUSTAINED THE AWARD AND VACATED THE STAY WHICH IT
HAD PREVIOUSLY GRANTED.
BACKGROUND OF CASE
ACCORDING TO THE ARBITRATOR'S AWARD AND THE ENTIRE RECORD, THE
GRIEVANT WAS EMPLOYED FOR ABOUT 6 YEARS BY THE ANTILLES CONSOLIDATED
SCHOOL SYSTEM (THE ACTIVITY) AS A GENERAL INDUSTRIAL ARTS TEACHER AND
WAS TEACHING SUCH SUBJECTS AT THE ACTIVITY'S MIDDLE SCHOOL PRIOR TO HIS
TERMINATION. THE NORTH CENTRAL ASSOCIATION OF COLLEGES AND SECONDARY
SCHOOLS (NORTH CENTRAL) IS THE ACCREDITING AGENCY FOR THE ACTIVITY
ESTABLISHING PROGRAM STANDARDS FOR THE OPERATION OF SCHOOLS, AS WELL AS
MINIMUM EDUCATIONAL AND EXPERIENCE REQUIREMENTS FOR TEACHERS. NORTH
CENTRAL REQUIRES A TEACHER OF INDUSTRIAL ARTS TO HAVE TAKEN A MINIMUM OF
ONE COURSE IN EACH SUBJECT TAUGHT. THE ARBITRATOR FOUND THAT THE ONLY
FORMAL COURSE IN THE AUTO MECHANICS AREA COMPLETED BY THE GRIEVANT DID
NOT SATISFY THE REQUIREMENT. HOWEVER, THE ARBITRATOR NOTED THAT IF THE
ACTIVITY WERE CITED BY NORTH CENTRAL FOR A DEFICIENCY IN TEACHER
COURSEWORK, NORTH CENTRAL WOULD NORMALLY ALLOW ONE YEAR WITHIN WHICH THE
TEACHER COULD REMEDY THE SITUATION BY COMPLETION OF THE NEEDED COURSE.
PRIOR TO THE START OF THE 1976-77 SCHOOL YEAR, NORTH CENTRAL ADVISED
THE ACTIVITY TO OFFER A COURSE IN AUTO MECHANICS AT THE HIGH SCHOOL. A
QUALIFIED TEACHER WAS HIRED, AND HE BEGAN TEACHING THE COURSE IN JANUARY
1977. IN FEBRUARY AND MARCH OF 1977, THE GRIEVANT WAS ADVISED OF A
PROBABLE REDUCTION-IN-FORCE AT THE MIDDLE SCHOOL WHICH COULD TERMINATE
HIS JOB. ON MAY 10, 1977, THE GRIEVANT WAS GIVEN A FORMAL
REDUCTION-IN-FORCE LETTER. THE GRIEVANT THEN APPLIED FOR THE TEACHING
POSITION WHICH INCLUDED TEACHING THE COURSE IN AUTO MECHANICS IN THE
HIGH SCHOOL, AND HE OFFERED TO TAKE THE NEEDED COURSEWORK IN AUTO
MECHANICS IN THE SPRING OR SUMMER OF 1977. HOWEVER, THE ACTIVITY
REFUSED TO RECONSIDER ITS DECISION THAT THE GRIEVANT WAS NOT QUALIFIED
TO COMPETE WITH THE OTHER TEACHER IN THE TEACHING OF AUTO MECHANICS.
NEITHER DID IT OFFER TO PERMIT THE GRIEVANT A TRIAL PERIOD TO
DEMONSTRATE ON THE JOB WHETHER HE KNEW THE WORK, PENDING COMPLETION OF
THE DEFICIT IN COURSEWORK, WHICH COULD HAVE BEEN COMPLETED IN LESS THAN
THE ONE YEAR CITATION PERIOD PERMITTED BY NORTH CENTRAL.
THE UNION FILED A GRIEVANCE RESULTING IN THE INSTANT ARBITRATION,
CONTENDING THAT THE TERMINATION ACTION VIOLATED ARTICLE 3(1) /1/ AND/OR
ARTICLE 21 /2/ OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT.
THE ARBITRATOR'S AWARD
THE STATEMENT OF ISSUE BY THE ARBITRATOR WAS AS FOLLOWS:
WAS (GRIEVANT QUALIFIED TO PERFORM THE DUTIES OF (THE OTHER TEACHER)
AS A TEACHER OF AUTO
MECHANICS IN THE ANTILLES SENIOR HIGH SCHOOL AT THE TIME OF THE
TERMINATION OF (GRIEVANT) ON
JULY 10, 1977?
IT WAS STIPULATED BY THE ACTIVITY BEFORE THE ARBITRATOR THAT IF THE
ARBITRATOR RESOLVED THE ISSUE IN THE AFFIRMATIVE, PURSUANT TO ARTICLE 21
OF THE AGREEMENT, THE GRIEVANT WOULD AUTOMATICALLY HAVE SUFFICIENT
RETENTION POINTS TO BUMP OR REPLACE THE OTHER TEACHER IN HIS JOB.
THE ARBITRATOR STATED THAT THE SOLE ISSUE BEFORE HIM WAS WHETHER THE
GRIEVANT POSSESSED THOSE "BASIC QUALIFICATIONS" CALLED FOR UNDER ARTICLE
21, SECTION E(3) OF THE NEGOTIATED AGREEMENT. THEREFORE, WHILE HE FOUND
THAT THE ONE COURSE TAKEN BY THE GRIEVANT IN THE AUTO MECHANICS AREA DID
NOT MEET THE NORTH CENTRAL REQUIREMENT FOR CERTIFICATION, HE ALSO
DETERMINED THAT THE GRIEVANT HAD THE "OVERALL 'BASIC QUALIFICATIONS' TO
TEACH SUCH COURSE IN ALL OTHER RESPECTS, PURSUANT TO ART. 21, SEC.
E(3)." HE THUS CONCLUDED THAT THE ACTIVITY FAILED TO SUPPORT ITS BURDEN
OF PROVING THAT THE GRIEVANT WAS NOT BASICALLY QUALIFIED TO PERFORM THE
OTHER TEACHER'S JOB AT THE TIME OF THE GRIEVANT'S TERMINATION.
ACCORDINGLY, THE ARBITRATOR GRANTED THE GRIEVANCE AND AWARDED THE
GRIEVANT THE TEACHING POSITION AT ISSUE "RETROACTIVE TO JULY 10, 1977,"
WITH BACKPAY, CONTINGENT UPON THE GRIEVANT'S COMPLETION OF THE REQUIRED
COURSEWORK.
AGENCY'S APPEAL TO THE COUNCIL
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 EXCEPTION WHICH ALLEGED THAT THE AWARD VIOLATES THE BACK
PAY ACT OF 1966. /3/
OPINION
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 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 NOTED, THE COUNCIL ACCEPTED THE AGENCY'S PETITION FOR
REVIEW INSOFAR AS IT RELATED TO ITS EXCEPTION WHICH ALLEGED THAT THE
AWARD VIOLATES THE BACK PAY ACT. BECAUSE THIS CASE CONCERNS ISSUES
WITHIN THE JURISDICTION OF THE COMPTROLLER GENERAL'S OFFICE, ESPECIALLY
THE APPLICABILITY OF PRIOR COMPTROLLER GENERAL DECISIONS TO THE FACTS OF
THIS CASE, THE COUNCIL REQUESTED FROM HIM A DECISION AS TO WHETHER THE
ARBITRATOR'S AWARD VIOLATES THE BACK PAY ACT. THE COMPTROLLER GENERAL'S
DECISION IN THE MATTER, B-192568, DECEMBER 8, 1978, IS SET FORTH BELOW.
THE FEDERAL LABOR RELATIONS COUNCIL HAS REQUESTED A DECISION ON THE
LEGALITY OF BACKPAY
ORDERED BY AN ARBITRATOR IN THE MATTER OF ANTILLES CONSOLIDATED
SCHOOL SYSTEM AND ANTILLES
CONSOLIDATED EDUCATION ASSOCIATION (KANZER, ARBITRATOR), FLRC NO.
78A-21. THIS CASE IS BEFORE
THE FEDERAL LABOR RELATIONS COUNCIL AS THE RESULT OF A PETITION FOR
REVIEW FILED BY THE
DEPARTMENT OF THE NAVY ALLEGING THAT THE AWARD VIOLATES APPLICABLE
LAWS AND REGULATIONS. THE
COUNCIL ACCEPTED THE PETITION INSOFAR AS IT RELATED TO THE AGENCY'S
EXCEPTION WHICH ALLEGED
THAT THE AWARD VIOLATES THE BACK PAY ACT OF 1966. THE SOLE ISSUE
PRESENTED FOR CONSIDERATION
BY US IS WHETHER OR NOT THE ARBITRATOR'S AWARD OF BACKPAY TO THE
AGGRIEVED EMPLOYEE VIOLATES
THE BACK PAY ACT, 5 U.S.C. 5596(1976).
THE ARBITRATOR MADE A CONDITIONAL AWARD OF BACKPAY TO MR. CLIFTON F.
RUSH, A TEACHER WHOSE
EMPLOYEMENT AT THE ANTILLES MIDDLE SCHOOL, ANTILLES CONSOLIDATED
SCHOOL SYSTEM, FORT BUCHANAN,
PUERTO RICO, WAS TERMINATED ON THE BASIS OF A REDUCTION-IN-FORCE.
MR. RUSH'S EMPLOYMENT WAS
TERMINATED EFFECTIVE JULY 10, 1977. FROM MAY 1971, THROUGH THAT
DATE, HE HAD BEEN EMPLOYED AS
A TEACHER OF INDUSTRIAL ARTS IN THE SCHOOL SYSTEM. THE NAVY OPERATED
THE SCHOOL SYSTEM UNDER
THE AUTHORITY OF 20 U.S.CODE 241(A), AS A "SECTION 6 SCHOOL" FOR THE
COMMISSIONER OF
EDUCATION, DEPARTMENT OF HEALTH, EDUCATION AND WELFARE.
THE ISSUE AS FORMULATED BY THE ARBITRATOR FOR HIS CONSIDERATION IS AS
FOLLOWS: "WAS
MR. CLIFTON RUSH QUALIFIED TO PERFORM THE DUTIES OF MR. CARL PACHUCKI
AS A TEACHER OF AUTO
MECHANICS IN THE ANTILLES SENIOR HIGH SCHOOL AT THE TIME OF THE
TERMINATION OF RUSH ON JULY
10, 1977?"
THE FACTS IN THE MATTER AS STATED IN THE ARBITRATOR'S DECISION ARE
SUMMARIZED AS FOLLOWS. MR. RUSH RECEIVED BOTH B.S. AND M.S. DEGREES AND
POSSESSES A TEACHER CERTIFICATE ISSUED BY THE KANSAS DEPARTMENT OF
EDUCATION WHICH LIST THE FOLLOWING SUBJECTS: GENERAL SHOP, DRAFTING,
METALS, AND WOOD. RUSH COMPLETED ONE FORMAL COLLEGE COURSE IN THE AUTO
MECHANICS AREA; HOWEVER, TO EARN CERTIFICATION IN KANSAS HE WOULD HAVE
TO COMPLETE TWO MORE ADVANCED COURSES IN AUTO MECHANICS. HE NEVER
TAUGHT A CLASS IN AUTO MECHANICS, BUT REPAIRED ENGINES IN THE NAVY FROM
1962-1967, AND WORKED FOUR MONTHS AS AN AUTO MECHANIC WHILE AT COLLEGE.
THE ACCREDITING AGENCY FOR ANTILLES CONSOLIDATED SCHOOL SYSTEM
(HEREAFTER "ANTILLES") REQUIRES A TEACHER OF INDUSTRIAL ARTS TO HAVE A
MINIMUM OF ONE COURSE IN EACH SUBJECT TAUGHT. ALTHOUGH THE ARBITRATOR
FOUND THAT THE COURSE PASSED BY RUSH DID NOT SATISFY THAT REQUIREMENT,
HE NOTED THAT IF ANTILLES WERE CITED BY THE ACCREDITING AGENCY FOR A
DEFICIENCY IN SUCH COURSEWORK, THE ACCREDITING AGENCY NORMALLY WOULD
ALLOW ANTILLES ONE YEAR UNDER CITATION WITHIN WHICH TIME THE TEACHER
COULD COMPLETE THE NEEDED COURSE.
THE ACCREDITING AGENCY ADVISED ANTILLES PRIOR TO THE START OF
1976-1977 SCHOOL YEAR TO OFFER A COURSE IN AUTO MECHANICS AT THE HIGH
SCHOOL WITH THE START OF THE LATTER YEAR. ACCORDINGLY, ANTILLES HIRED A
TEACHER WHO WAS FOUND BY THE ARBITRATOR TO BE FULLY QUALIFIED TO TEACH A
COURSE IN AUTO MECHANICS.
IT WAS NOT UNTIL ABOUT MAY 1977, THAT THE NEW TEACHER OF AUTO
MECHANICS PROVIDED SHOP WORK FOR THE AUTO MECHANICS CLASS. THE
ARBITRATOR FOUND THAT, ALTHOUGH THE COLLEGE COURSE COMPLETED BY RUSH WAS
NOT COMPREHENSIVE ENOUGH TO MEET THE STANDARDS OF THE ACCREDITING
AGENCY, HIS COURSE DID COVER MOST OF THE AREAS COVERED BY THE TEXT BOOK
USED BY THE NEW CLASS FOR THE AUTO MECHANICS COURSE.
IN FEBRUARY 1977, RUSH WAS ADVISED THAT THE INDUSTRIAL ARTS CLASSES
AT THE MIDDLE SCHOOL WERE TO BE PHASED OUT FOR ECONOMIC REASONS WHICH
COULD RESULT IN RUSH LOSING HIS JOB. THE ARBITRATOR FOUND THAT RUSH DID
NOT RECEIVE A WRITTEN ROSTER OF COMPETITIVE RATING WITHIN 30 DAYS OF
MARCH 31, 1977, AS REQUIRED BY THE NEGOTIATED LABOR AGREEMENT. ON MAY
10, 1977, RUSH RECEIVED A FORMAL REDUCTION-IN-FORCE LETTER. RUSH THEN
APPLIED FOR THE TEACHING POSITION IN AUTO MECHANICS AT ANTILLES HIGH
SCHOOL, OFFERING TO COMPLETE THE NEEDED COURSEWORK THAT HE LACKED FOR
CERTIFICATION. HOWEVER, ANTILLES REFUSED TO RECONSIDER. NEITHER DID IT
OFFER TO PERMIT RUSH A BRIEF TRIAL OR TRAINING PERIOD TO DEMONSTRATE ON
THE JOB WHETHER HE KNEW THE WORK, PENDING COMPLETION OF THE DEFICIT IN
COURSEWORK, WHICH THE ARBITRATOR FOUND COULD HAVE BEEN COMPLETED IN MUCH
LESS TIME THAN THE ONE YEAR CITATION PERIOD PERMITTED BY THE ACCREDITING
AGENCY.
ON THE BASIS OF THE FACTS DEVELOPED AT THE HEARING, THE ARBITRATOR
FOUND THAT THE SINGLE 2-CREDIT COURSE TAKEN BY RUSH DID NOT MEET THE
ACCREDITING AGENCY'S REQUIREMENT FOR CERTIFICATION TO TEACH AUTO
MECHANICS AT ANTILLES HIGH SCHOOL. BUT HE ALSO FOUND THAT RUSH HAD THE
"BASIC QUALIFICATIONS" TO TEACH THE COURSE IN ALL OTHER RESPECTS
PURSUANT TO ARTICLE 21 OF THE AGREEMENT. HE BASED THIS ON RUSH'S
EMPLOYMENT EXPERIENCE AS A MECHANIC, HIS KNOWLEDGE OF THE SUBJECTS
COVERED AND HIS SIX YEARS OF GENERAL TEACHING EXPERIENCE IN INDUSTRIAL
ARTS.
HOWEVER, BECAUSE HE FOUND THAT THE SOLE COURSE IN SMALL GAS ENGINES
COMPLETED BY RUSH DID NOT SUFFICE, THE ARBITRATOR CONDITIONED THE
REMEDIES AWARDED TO RUSH IN GRANTING HIS GRIEVANCE DIRECTLY UPON A
PROMPT COMPLETION OF THE NEXT COURSE NEEDED.
THE ARBITRATOR'S AWARD READS AS FOLLOWS:
"I, THEREFORE, CONCLUDE THAT RUSH POSSESSED THE BASIC QUALIFICATIONS
TO PERFORM THE JOB AS
AUTO MECHANICS TEACHER IN ANTILLES H.S. WHICH WAS HELD BY PACHUCKI,
AND HIS GRIEVANCE IS
HEREBY GRANTED, VESTING HIM IN PACHUCKI'S POSITION AS OF JULY 10,
1977, HOWEVER WITHIN THE
FRAMEWORK OF THE REMEDIES FASHIONED BY THE ARBITRATOR BELOW:
"1. RUSH IS AWARDED PACHUCKI'S POSITION RETROACTIVE TO JULY 10,
1977, WITHOUT ANY BREAK IN
SENIORITY OR EMPLOYEE RIGHTS OR BENEFITS.
"2. RUSH IS HEREBY DIRECTED TO IMMEDIATELY ENROLL IN AND PASS THE
NEXT AUTO MECHANICS
COURSE NEEDED TO SECURE HIS CERTIFICATION. THIS MUST BE DONE AND AN
APPROPRIATE TRANSCRIPT
AND CERTIFICATE FILED WITH THE ANTILLES SCHOOL SYSTEM NO LATER THAN
THE END OF THE 1977-78
SCHOOL YEAR (ON OR ABOUT JULY 10, 1978). IF RUSH FAILS TO PERFORM
THE LATTER CONTINGENCY BY
THE END OF THE 1977-78 SCHOOL, THEN HIS CONTRACT SHALL BE TERMINATED
BY ANTILLES AND HE SHALL
BE DISMISSED FROM SERVICE AT THE ANTILLES H.S.
"3. WHILE RUSH TAKES AND COMPLETES HIS COURSE, ANTILLES SHALL HONOR
PACHUCKI'S CONTRACT,
AND ALLOW HIM TO COMPLETE HIS DUTIES ON HIS CURRENT JOB UNTIL THE END
OF THE 1977-78 SCHOOL
YEAR. ALTHOUGH THIS ARBITRATOR HAS NO JURISDICTION REGARDING THE
DESTINY OF PACHUCKI, AS FAR
AS HIS RE-EMPLOYMENT IS CONCERNED, IT IS HOPED ALL PARTIES WILL JOIN
HANDS TO FIND HIM A NEW
POSITION IN THE FT. BUCHANAN AREA AS WORTHY AS THE ONE HE NOW HAS.
AS AN INNOCENT VICTIM OF
THE REDUCTION IN FORCE, HE DESERVES THE HELP OF BOTH LABOR AND
MANAGEMENT.
"4. IF RUSH COMPLETES HIS COURSE BY THE END OF THE 1977-78 YEAR, HE
IS TO BE REIMBURSED BY
ANTILLES BY PAYMENT OF THE DIFFERENCE BETWEEN HIS GROSS ANNUAL SALARY
AND THE SUMS RECEIVED IN
THE FORM OF SEVERANCE PAY OF $1,950.40 AND WEEKLY CHECKS OF $100 IN
UNEMPLOYMENT COMPENSATION
BENEFITS.
"5. IN SUM, RUSH IS NOT TO PERFORM ANY SERVICES OR RECEIVE ANY BACK
PAY (SEE, NO. 4 SUPRA)
UNLESS AND UNTIL HE COMPLIES FULLY WITH MY DIRECTIVE OF COMPLETION OF
THE COURSE SET OUT IN
PARAGRAPH 2, ABOVE."
PERSONNEL EMPLOYED AT SO CALLED "SECTION 6 SCHOOLS," SUCH AS THE
ANTILLES CONSOLIDATED SCHOOL SYSTEM, CREATED UNDER AUTHORITY OF SECTION
6 OF PUBLIC LAW 81-874, 64 STAT. 1100, SEPTEMBER 30, 1950, AS AMENDED 20
U.S.C. 241, ARE EMPLOYEES OF THE UNITED STATES, AND AS SUCH FALL WITHIN
THE PURVIEW OF THE BACK PAY ACT, 5 U.S.C. 5596(1976). SEE 52 COMP.GEN.
291(1972); B-187881, OCTOBER 3, 1977; B-183804, NOVEMBER 14, 1975.
HOWEVER, SECTION 6 SPECIFICALLY EXEMPTS SUCH EMPLOYEES FROM THE CIVIL
SERVICE ACT AND RULES (5 U.S.C. 3301 ET SEQ.); ACCORDINGLY, THEY HAVE
NO STATUTORY APPEAL FROM A REDUCTION-IN-FORCE ACTION, BUT THE PARTIES IN
THEIR NEGOTIATED AGREEMENT HAVE ESTABLISHED REDUCTION-IN-FORCE POLICIES
AND PROCEDURES (ARTICLE 21).
OUR RECENT DECISIONS CONSIDERING THE LEGALITY OF IMPLEMENTING BINDING
ARBITRATION AWARDS, WHICH RELATE TO FEDERAL EMPLOYEES COVERED BY
COLLECTIVE BARGAINING AGREEMENTS, HAVE HELD THAT THE PROVISIONS OF SUCH
AGREEMENTS MAY CONSTITUTE NONDISCRETIONARY AGENCY POLICIES IF CONSISTENT
WITH APPLICABLE LAWS AND REGULATIONS, INCLUDING EXECUTIVE ORDER 11491,
AS AMENDED. THEREFORE, WHEN AN ARBITRATOR ACTING WITHIN PROPER
AUTHORITY AND CONSISTENT WITH APPLICABLE LAWS AND DECISIONS DECIDES THAT
AN AGENCY HAS VIOLATED AN AGREEMENT, THAT SUCH VIOLATION DIRECTLY
RESULTS IN A LOSS OF PAY, AND AWARDS BACKPAY TO REMEDY THAT LOSS, THE
AGENCY HEAD CAN LAWFULLY IMPLEMENT A BACKPAY AWARD FOR THE PERIOD DURING
WHICH THE EMPLOYEE WOULD HAVE RECEIVED THE PAY BUT FOR THE VIOLATION, SO
LONG AS THE RELEVANT PROVISION IS PROPERLY INCLUDABLE IN THE AGREEMENT.
SEE 54 COMP.GEN. 312(1974), AND 54 COMP.GEN. 435(1974).
THE BACK PAY ACT, CODIFIED IN 5 U.S.C. 5596, IS THE STATUTORY
AUTHORITY UNDER WHICH AN AGENCY MAY RETROACTIVELY ADJUST AN EMPLOYEE'S
COMPENSATION, AND IT 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; * * * ."
HOWEVER, BEFORE RETROACTIVE PAYMENT MAY BE MADE UNDER THE PROVISIONS
OF 5 U.S.C. 5596, 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. 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, 763(1975).
IN THE LIGHT OF THE FOREGOING, IN ORDER TO MAKE A VALID AWARD OF
BACKPAY, IT IS NECESSARY FOR THE ARBITRATOR NOT ONLY TO FIND THAT THE
NEGOTIATED AGREEMENT HAS BEEN VIOLATED BY THE AGENCY, BUT ALSO TO FIND
THAT SUCH IMPROPER ACTION DIRECTLY CAUSED THE GRIEVANT TO SUFFER A LOSS
OR REDUCTION IN PAY, ALLOWANCES, OR DIFFERENTIALS. 55 COMP.GEN. 629,
633(1976).
HERE, THE ARBITRATOR FOUND THAT THE ANTILLES CONSOLIDATED SCHOOL
SYSTEM VIOLATED THE AGREEMENT BECAUSE THE SCHOOL SYSTEM FAILED TO MEET
ITS BURDEN OF SHOWING BY CONVINCING PROOF THAT THE GRIEVANT WAS NOT
BASICALLY QUALIFIED TO PERFORM PACHUCKI'S JOB. HOWEVER, THE ARBITRATOR
ALSO FOUND THAT RUSH DID NOT MEET THE CERTIFICATION REQUIREMENT TO TEACH
AUTO MECHANICS AT THE HIGH SCHOOL AND, THEREFORE, WOULD HAVE TO TAKE
ANOTHER COURSE BEFORE HE COULD TEACH AUTO MECHANICS. ACCORDINGLY, THE
ARBITRATOR DIRECTED RUSH TO ENROLL IN AND PASS THE NEXT AVAILABLE COURSE
AND SPECIFIED THAT RUSH WAS NOT ENTITLED TO PERFORM ANY SERVICES OR
RECEIVE ANY BACKPAY UNLESS AND UNTIL HE COMPLIED WITH THE DIRECTIVE TO
COMPLETE THE NEXT AUTO MECHANICS COURSE NEEDED TO SECURE HIS
CERTIFICATION. ONLY IF HE COMPLETED THE COURSE WOULD RUSH BE ENTITLED
TO RECEIVE RETROACTIVE PAY.
WE DO NOT BELIEVE THAT THE ARBITRATOR'S CONDITIONAL AWARD OF BACKPAY
MEETS THE REQUIREMENT OF THE BACK PAY ACT THAT THE UNJUSTIFIED ACTION
MUST HAVE DIRECTLY CAUSED THE EMPLOYEE TO SUFFER A LOSS OR REDUCTION IN
PAY. THE DIRECT CAUSE OF THE LOSS OF PAY WAS THAT THE GRIEVANT DID NOT
HAVE THE REQUIRED COURSE CREDITS TO TEACH AUTO MECHANICS AT THE ANTILLES
HIGH SCHOOL. SINCE THE ARBITRATOR FOUND THAT THE GRIEVANT LACKED THE
FORMAL QUALIFICATIONS TO FILL THE POSITION IN QUESTION AT THE TIME OF
HIS TERMINATION, HE DID NOT AND COULD NOT FIND THAT BUT FOR THE WRONGFUL
ACTION THE LOSS OF PAY WOULD NOT HAVE OCCURRED.
ACCORDINGLY, THERE IS NO AUTHORITY UNDER THE BACK PAY ACT FOR THE
CONDITIONAL BACKPAY AWARDED BY THE ARBITRATOR, AND THAT PART OF THE
AWARD MAY NOT BE IMPLEMENTED.
BASED UPON THE FOREGOING DECISION OF THE COMPTROLLER GENERAL, IT IS
CLEAR THAT THE ARBITRATOR'S AWARD IN THIS CASE, TO THE EXTENT THAT IT
DIRECTS THE PAYMENT OF BACKPAY IN CONNECTION WITH THE RETROACTIVE
REINSTATEMENT, IS VIOLATIVE OF THE BACK PAY ACT AND CANNOT BE SUSTAINED.
CONCLUSION
FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2411.37(B) OF THE
COUNCIL'S RULES OF PROCEDURE, WE MODIFY THE ARBITRATOR'S AWARD BY
STRIKING THAT PORTION WHICH DIRECTS THE PAYMENT OF BACKPAY IN CONNECTION
WITH A RETROACTIVE REINSTATEMENT.
AS SO MODIFIED, THE AWARD IS SUSTAINED AND THE STAY OF THE AWARD IS
VACATED.
BY THE COUNCIL.
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
ISSUED: DECEMBER 28, 1978
/1/ AS SET FORTH IN THE ARBITRATOR'S AWARD, ARTICLE 3(1) OF THE
NEGOTIATED AGREEMENT CONTAINS THE SECTION 12(A) LANGUAGE OF EXECUTIVE
ORDER 11491.
/2/ ACCORDING TO THE ARBITRATOR'S AWARD, ARTICLE 21 (REDUCTION IN
FORCE) PROVIDES, IN PERTINENT PART, AS FOLLOWS:
SECTION E: RETENTION PROCEDURES
(3) IN THE EVENT OF A REDUCTION IN FORCE, RETENTION OF TEACHERS
WITHIN THE AFFECTED
COMPETITIVE AREA WILL BE BASED ON TEACHER QUALIFICATIONS,
PERFORMANCE, AND EXPERIENCE IN
ACCORDANCE WITH THE FOLLOWING RANKING SYSTEM. TEACHERS WITH THE
BASIC QUALIFICATIONS AND
HIGHEST NUMBER OF ACCUMULATED POINTS WILL PREEMPT THOSE WITH A LESSER
NUMBER OF POINTS . . .
/3/ THE AGENCY REQUESTED AND THE COUNCIL GRANTED, PURSUANT TO SECTION
2411.47(F) OF THE COUNCIL'S RULES OF PROCEDURE, A STAY OF THE AWARD
PENDING DETERMINATION OF THE APPEAL.
6 FLRC 1113; FLRC NO. 77A-148; DECEMBER 28, 1978.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1802
(UNION)
AND
FLRC NO. 77A-148
DEPARTMENT OF HEALTH, EDUCATION, AND
WELFARE, SOCIAL SECURITY ADMINISTRATION,
DENVER DISTRICT
(ACTIVITY)
DECISION ON NEGOTIABILITY ISSUE
(SYNOPSIS) FLRC NO. 77A-148
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1802 AND
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, SOCIAL SECURITY
ADMINISTRATION, DENVER DISTRICT. THE DISPUTE INVOLVED THE NEGOTIABILITY
OF PROVISIONS OF THE PARTIES' AGREEMENT WHICH WERE DISAPPROVED BY THE
AGENCY DURING REVIEW OF THE AGREEMENT UNDER SECTION 15 OF THE ORDER.
THE DISPUTED PROVISIONS RELATED TO PROMOTIONS OF EMPLOYEES IN CAREER
LADDER POSITIONS AND TRAINING PROGRAMS.
COUNCIL ACTION (DECEMBER 28, 1978). THE COUNCIL HELD THAT THE
DISPUTED PROVISIONS WERE NOT VIOLATIVE OF SECTION 12(B) OF THE ORDER,
BUT WERE EXCEPTED FROM THE OBLIGATION TO BARGAIN BY SECTION 11(B) OF THE
ORDER. HOWEVER, SINCE THE LOCAL PARTIES HAD AGREED TO THE PROVISIONS,
THE AGENCY COULD NOT, AFTER THE AGREEMENT, CHANGE ITS POSITION DURING
THE SECTION 15 REVIEW PROCESS. ACCORDINGLY, PURSUANT TO SECTION 2411.28
OF ITS RULES, THE COUNCIL SET ASIDE THE AGENCY'S DETERMINATION THAT THE
PROVISIONS WERE NONNEGOTIABLE.
PROVISIONS /1/
(ARTICLE 18, SECTION 4. "PERFORMANCE EVALUATIONS")
A. ALL EMPLOYEES IN CAREER LADDER POSITIONS WILL BE PROMOTED WHEN
THE EMPLOYER HAS
CERTIFIED THAT THE EMPLOYEE IS CAPABLE OF SATISFACTORILY PERFORMING
ALL ASPECTS OF CURRENT
LEVEL AND DEMONSTRATED ABILITY TO PERFORM AT THE NEXT HIGHER LEVEL,
PROVIDED TIME-IN-GRADE
REQUIREMENTS HAVE BEEN MET.
B. TRAINEES' PROMOTIONS, UPON SATISFACTORY PERFORMANCE AND
COMPLETION OF TIME-IN-GRADE
REQUIREMENTS, ARE TO TAKE EFFECT AT THE BEGINNING OF THE FIRST FULL
PAY PERIOD
THEREAFTER. SUPERVISOR ERROR OR WORKLOAD IN THE PERSONNEL OFFICE
WILL NOT ABSOLVE THE
EMPLOYER FROM CONTRACTUAL OBLIGATION.
AGENCY DETERMINATION
DURING THE SECTION 15 REVIEW PROCESS, /2/ THE AGENCY DETERMINED THAT
ARTICLE 18, SECTION 4.A AND B OF THE NEGOTIATED AGREEMENT CONFLICTS WITH
RIGHTS RESERVED TO MANAGEMENT BY SECTION 12(B) OF THE ORDER, /3/ AND,
HENCE, IS NONNEGOTIABLE. /4/
QUESTION HERE BEFORE THE COUNCIL
THE QUESTION IS WHETHER THE DISPUTED PROVISION VIOLATE THE ORDER.
OPINION
CONCLUSION: THE PROVISIONS ARE NOT VIOLATIVE OF SECTION 12(B) OF THE
ORDER. RATHER, THEY ARE EXCEPTED FROM THE OBLIGATION TO BARGAIN UNDER
SECTION 11(B) OF THE ORDER. /5/ HOWEVER, SINCE THE LOCAL PARTIES AGREED
TO THE PROVISIONS, AS PERMITTED BY THE ORDER, THE AGENCY CANNOT, AFTER
THAT AGREEMENT, CHANGE ITS POSITION DURING THE SECTION 15 REVIEW
PROCESS. ACCORDINGLY, THE AGENCY'S DETERMINATION THAT THE PROVISIONS
ARE NONNEGOTIABLE WAS IMPROPER AND, PURSUANT TO SECTION 2411.28 OF THE
COUNCIL'S RULES, IS SET ASIDE. /6/
REASONS: THE AGENCY PRINCIPALLY CLAIMS THAT THE DISPUTED PROVISIONS
VIOLATE SECTION 12(B) OF THE ORDER, IN ESSENCE, BECAUSE THEY DEAL WITH A
MATTER WHICH IS OUTSIDE THE DELEGATED ADMINISTRATIVE DISCRETION OF THE
DENVER DISTRICT MANAGER AND, DERIVATIVELY, BECAUSE THE PROVISIONS ARE
OUTSIDE THAT OFFICIAL'S AUTHORITY TO CONDUCT NEGOTIATIONS. MORE
SPECIFICALLY, THE AGENCY TAKES THE POSITION THAT THE PROVISIONS VIOLATE
SECTION 12(B)(4) AND (5) OF THE ORDER BY PERMITTING THE DENVER DISTRICT
MANAGER TO EFFECT PROMOTIONS OF UNIT EMPLOYEES IN CAREER LADDER AND
TRAINEE POSITIONS, IN CONFLICT WITH THE AGENCY'S PUBLISHED DIRECTIVES,
ONE OF WHICH DELEGATES THE ADMINISTRATIVE AUTHORITY TO EFFECT SUCH
PROMOTIONS IN THE BARGAINING UNIT TO THE PERSONNEL OFFICER OF HEW REGION
VIII /7/ AND ANOTHER OF WHICH LIMITS THE AUTHORITY OF A LOCAL OFFICIAL
TO CONDUCT NEGOTIATIONS TO THOSE MATTERS SUBJECT TO HIS ADMINISTRATIVE
DISCRETION. /8/
THAT IS, THE AGENCY CONTENDS THAT THE PROVISIONS VIOLATE SECTION
12(B) OF THE ORDER BECAUSE THAT SECTION RESERVES TO MANAGEMENT THE RIGHT
TO DETERMINE THE OFFICIAL TO WHOM SUCH ADMINISTRATIVE AUTHORITY WILL BE
ASSIGNED. WE FIND THE AGENCY'S POSITION THAT SECTION 12(B) RENDERS THE
PROVISIONS NONNEGOTIABLE TO BE WITHOUT MERIT.
THE COUNCIL HAS PREVIOUSLY HELD THAT SUCH ASSIGNMENT OF A FUNCTION
FALLS NOT WITHIN THE AMBIT OF SECTION 12(B), BUT RATHER IS EXCEPTED FROM
THE OBLIGATION TO BARGAIN BY SECTION 11(B) OF THE ORDER. FOR EXAMPLE,
IN KIRK ARMY HOSPITAL /9/ THE QUESTION BEFORE THE COUNCIL WAS WHETHER A
UNION PROPOSAL ANALAGOUS TO THE PROVISIONS IN DISPUTE IN THE PRESENT
CASE WAS NONNEGOTIABLE UNDER THE ORDER. THAT PROPOSAL PROVIDED AS
FOLLOWS:
THE SCREENING OF (PROMOTION) CANDIDATES TO DETERMINE BASIC
ELIGIBILITY SHALL BE A FUNCTION
OF THE CIVILIAN PERSONNEL DIVISION AND THE RATING PANEL.
THE COUNCIL FOUND THAT THE QUOTED PROPOSAL WAS CONCERNED WITH THE
AGENCY'S "ORGANIZATION" WITHIN THE MEANING OF SECTION 11(B) OF THE
ORDER, SINCE IT PURPORTED TO ASSIGN THE RESPONSIBILITY FOR PERFORMING AN
AGENCY FUNCTION. CONSEQUENTLY, THE COUNCIL HELD THE PROPOSAL WAS
EXCEPTED FROM THE AGENCY'S OBLIGATION TO BARGAIN UNDER SECTION 11(B),
EXPLAINING ITS DECISION, AS FOLLOWS:
SECTION 11(B) OF THE ORDER EXCEPTS FROM THE AGENCY'S OBLIGATION TO
BARGAIN MATTERS WITH
RESPECT TO " . . . ITS ORGANIZATION . . . " AS THE COUNCIL EXPLAINED
IN THE GRIFFISS AIR FORCE
BASE CASE, THE ADMINISTRATIVE AND FUNCTIONAL STRUCTURE OF AN AGENCY,
I.E., THE SYSTEMATIC
GROUPING OF THE AGENCY'S WORK, COMPRISES THE AGENCY'S "ORGANIZATION"
AS THAT TERM IS USED IN
SECTION 11(B).
TURNING TO THE PROVISIONS DISPUTED IN THE PRESENT CASE, IN OUR VIEW
THESE PROVISIONS SIMILARLY PURPORT TO ASSIGN A PARTICULAR AGENCY
FUNCTION, (THE EFFECTING OF CERTAIN PROMOTIONS WITHIN THE BARGAINING
UNIT), TO THE DENVER DISTRICT MANAGER. HENCE, AS THESE CONTRACT
PROVISIONS ARE MATERIALLY INDISTINGUISHABLE FROM THE PROPOSAL BEFORE THE
COUNCIL IN FLRC NO. 72A-18, FOR THE REASONS STATED IN THAT DECISION WE
FIND THE INSTANT PROVISIONS CONCERN A MATTER WITH RESPECT TO THE
ADMINISTRATIVE AND FUNCTIONAL STRUCTURE OF THE AGENCY, AND, THUS, THE
AGENCY'S "ORGANIZATION" WITHIN THE MEANING OF SECTION 11(B) OF THE
ORDER. ACCORDINGLY, WE FIND THEY ARE, THEREFORE, EXCEPTED FROM THE
AGENCY'S OBLIGATION TO BARGAIN UNDER THAT SECTION OF THE ORDER.
HOWEVER, WHILE UNDER SECTION 11(B), THE AGENCY MAY BUT IS NOT REQUIRED
TO BARGAIN ON "ORGANIZATION," HERE THE AGENCY'S LOCAL BARGAINING
REPRESENTATIVE EXERCISED SUCH OPTION BY NEGOTIATING AND ENTERING INTO AN
AGREEMENT ON THE DISPUTED PROVISIONS. ACCORDINGLY, CONSISTENT WITH
ESTABLISHED COUNCIL PRECEDENT, THE AGENCY WAS WITHOUT AUTHORITY DURING
THE SECTION 15 REVIEW PROCESS TO DETERMINE THESE PROVISIONS
NONNEGOTIABLE ON THE BASIS OF SECTION 11(B) OF THE ORDER. /10/
FOR THE FOREGOING REASONS, WE FIND IN THE CIRCUMSTANCES OF THE
PRESENT CASE THE PROVISIONS ARE NEGOTIABLE UNDER THE ORDER. /11/ THE
AGENCY DETERMINATION TO THE CONTRARY IS SET ASIDE.
BY THE COUNCIL.
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
ISSUED: DECEMBER 28, 1978
/1/ THROUGHOUT THE RECORD BEFORE THE COUNCIL, THE PARTIES HAVE
CONSTRUED THE PROVISIONS AS A WHOLE, APPLICABLE IN LIKE MANNER TO
EMPLOYEES IN CAREER LADDER POSITIONS AND TO EMPLOYEES IN TRAINING
POSITIONS. THEREFORE, FOR THE PURPOSES OF THIS DECISION, THE COUNCIL
WILL ALSO CONSIDER THAT THE PROVISIONS APPLY ALIKE TO EMPLOYEES IN THE
TWO TYPES OF POSITIONS.
/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 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. AN
AGREEMENT WHICH HAS NOT BEEN
APPROVED OR DISAPPROVED WITHIN FORTY-FIVE DAYS FROM THE DATE OF ITS
EXECUTION SHALL GO INTO
EFFECT WITHOUT THE REQUIRED APPROVAL OF THE AGENCY HEAD AND SHALL BE
BINDING ON THE PARTIES
SUBJECT TO THE PROVISIONS OF LAW, THE ORDER AND THE REGULATIONS OF
APPROPRIATE AUTHORITIES
OUTSIDE THE AGENCY. 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.
/3/ SECTION 12(B) OF THE ORDER PROVIDES, IN 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--
. . . .
(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(.)
/4/ WHILE THE AGENCY ADVERTED TO ITS REGULATIONS ISSUED PURSUANT TO
SECTION 12(B) OF THE ORDER, IT APPEARS THAT THE AGENCY ESSENTIALLY
RELIED ON RIGHTS RESERVED TO IT UNDER SECTION 12(B) OF THE ORDER. IN
THIS REGARD, THE AGENCY STATED IN ITS DETERMINATION THAT:
(THE REGULATIONS) ARE PROTECTED BY E.O. 11491, SECTION 12(B)(4) AND
(5), AND THUS ARE
DEEMED NON-NEGOTIABLE UNDER SECTION 11(A) OF THE ORDER. SINCE THESE
ISSUANCES ARE THUS NOT
SUBJECT TO THE SECTION 11(A) OBLIGATION TO MEET AND CONFER, THERE IS
NO REQUIREMENT TO MAKE A
COMPELLING NEED DETERMINATION.
/5/ SECTION 11(B) OF THE ORDER PROVIDES, IN RELEVANT PART:
(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.
/6/ THIS DECISION SHOULD NOT BE CONSTRUED AS EXPRESSING OR IMPLYING
ANY OPINION OF THE COUNCIL AS TO THE MERITS OF THE PROVISIONS. WE
DECIDE ONLY THAT, AS AGREED UPON BY THE PARTIES AND BASED UPON THE
RECORD BEFORE THE COUNCIL, THE PROVISIONS ARE PROPERLY SUBJECT TO
NEGOTIATION BY THE PARTIES CONCERNED UNDER SECTION 11(A) OF THE ORDER.
/7/ HEW PERSONNEL INSTRUCTION 250-5-50C.
/8/ HEW PERSONNEL INSTRUCTION 711-1-110A.
/9/ IAM-AW LODGE 2424 AND KIRK ARMY HOSPITAL AND ABERDEEN RESEARCH
AND DEVELOPMENT CENTER, ABERDEEN, MD., 1 FLRC 525, 533 (FLRC NO. 72A-18
(SEPT. 17, 1973), REPORT NO. 44).
/10/ E.G., AFGE COUNCIL OF LOCALS 1497 AND 2165 AND REGION 3, GENERAL
SERVICES ADMINISTRATION, BALTIMORE, MARYLAND, 3 FLRC 396 (FLRC NO.
74A-48 (JUNE 26, 1975) REPORT NO. 75).
/11/ WE NOTE THAT THE PROVISIONS WOULD NOT PREVENT THE AGENCY FROM
ESTABLISHING SUCH INTERNAL PROCEDURES AS MAY BE APPROPRIATE TO ASSURE
THAT ALL LEGAL AND REGULATORY REQUIREMENTS NECESSARY TO THE PROPER
EFFECTUATION OF A PROMOTION ARE MET PRIOR TO THE DENVER DISTRICT
MANAGER'S TAKING THE ACTION SET FORTH IN THE PROVISIONS OF THE
NEGOTIATED AGREEMENT.
6 FLRC 1103; FLRC NO. 77A-141; DECEMBER 28, 1978.
DEPARTMENT OF DEFENSE,
U.S. NAVY,
NORFOLK NAVAL SHIPYARD
AND
TIDEWATER VIRGINIA FEDERAL
EMPLOYEES METAL TRADES
COUNCIL, AFL-CIO
A/SLMR NO. 908
FLRC NO. 77A-141
DECISION ON APPEAL FROM
ASSISTANT SECRETARY'S DECISION
(SYNOPSIS) FLRC NO. 77A-141
DEPARTMENT OF DEFENSE, U.S. NAVY, NORFOLD NAVAL SHIPYARD, A/SLMR NO.
908. THIS APPEAL AROSE FROM A DECISION AND ORDER OF THE ASSISTANT
SECRETARY, UPON A COMPLAINT FILED BY THE UNION (TIDEWATER VIRGINIA
FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO). THE ASSISTANT
SECRETARY FOUND, IN PERTINENT PART, THAT THE ACTIVITY VIOLATED SECTION
19(A)(1) AND (6) OF THE ORDER BY DENYING UNION REPRESENTATION TO FOUR
PROBATIONARY EMPLOYEES, WHO HAD REQUESTED SUCH REPRESENTATION, AT
MEETINGS WITH MANAGEMENT WHERE DISCIPLINARY ACTION WAS DISCUSSED AND
IMPOSED. THE COUNCIL ACCEPTED THE AGENCY'S PETITION FOR REVIEW,
CONCLUDING THAT THE ASSISTANT SECRETARY'S DECISION RAISED A MAJOR POLICY
ISSUE AS TO WHETHER THE ASSISTANT SECRETARY'S INTERPRETATION AND
APPLICATION OF SECTION 10(E) OF THE ORDER IN THE CIRCUMSTANCES OF THE
CASE WAS CONSISTENT WITH THE PURPOSES AND POLICIES OF THE ORDER, THE
COUNCIL ALSO GRANTED THE AGENCY'S REQUEST FOR A STAY. (REPORT NO. 149)
COUNCIL ACTION (DECEMBER 28, 1978). FOR THE REASONS FULLY DETAILED
IN ITS DECISON, THE COUNCIL CONCLUDED THAT THE ASSISTANT SECRETARY'S
FINDING OF A VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER, BASED
UPON HIS INTERPRETATION OF THE REQUIREMENTS OF SECTION 10(E), WAS
INCONSISTENT WITH THE PURPOSES AND POLICIES 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 ORDER AND REMANDED THE
CASE FOR ACTION CONSISTENT WITH ITS DECISION.
BACKGROUND OF CASE
THIS APPEAL AROSE FROM A DECISION AND ORDER OF THE ASSISTANT
SECRETARY, INVOLVING AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO (THE
UNION) AGAINST THE DEPARTMENT OF DEFENSE, U.S. NAVY, NORFOLK NAVAL
SHIPYARD, NORFOLK, VIRGINIA (THE ACTIVITY). THE ASSISTANT SECRETARY
FOUND, IN PERTINENT PART, THAT THE ACTIVITY VIOLATED SECTION 19(A)(6)
AND-- BASED ON THE SAME CONDUCT-- SECTION 19(A)(1) OF THE ORDER /1/ BY
DENYING UNION REPRESENTATION TO FOUR PROBATIONARY EMPLOYEES, WHO HAD
REQUESTED SUCH REPRESENTATION, AT MEETINGS WITH MANAGEMENT WHERE
DISCIPLINARY ACTION WAS IMPOSED.
THE PERTINENT FACTUAL BACKGROUND OF THIS CASE, AS FOUND BY THE
ASSISTANT SECRETARY, IS AS FOLLOWS: FOUR PROBATIONARY EMPLOYEES,
MEMBERS OF THE BARGAINING UNIT EXCLUSIVELY REPRESENTED BY THE UNION,
WERE DISCOVERED SLEEPING ON THE JOB BY A SUPERVISOR AT THE ACTIVITY.
THE ACTIVITY THEREAFTER SCHEDULED INDIVIDUAL MEETINGS WITH EACH OF THE
PROBATIONERS FOR THE PURPOSE OF TERMINATING THEIR EMPLOYMENT, AND GAVE
THE UNION ADVANCE NOTICE OF THE MEETINGS. THE ACTIVITY FURTHER ADVISED
THE UNION THAT, BECAUSE THE MEN WERE PROBATIONARY EMPLOYEES, THEY WERE
NOT ENTITLED TO UNION REPRESENTATION AS THEY HAD REQUESTED, BUT THAT A
UNION STEWARD COULD ATTEND THE MEETING AS AN OBSERVER. /2/ A MANAGEMENT
REPRESENTATIVE MET WITH EACH EMPLOYEE INDIVIDUALLY AND IN EACH CASE
INFORMED THE EMPLOYEE THAT HE WAS NOT ENTITLED TO REPRESENTATION BUT
THAT THE UNION WAS ENTITLED TO HAVE AN OBSERVER PRESENT. DURING THE
COURSE OF THE MEETINGS, THE UNION STEWARD TRIED TO SPEAK ON SEVERAL
OCCASIONS, BUT THE MANAGEMENT REPRESENTATIVE STOPPED HIM EACH TIME AND
TOLD HIM THAT HE WAS ONLY AN OBSERVER AND COULD MAKE A STATEMENT ON
BEHALF OF THE UNION AT THE END OF THE MEETING. EACH OF THE FOUR
MEETINGS LASTED APPROXIMATELY 5 MINUTES AND RESULTED IN THE TERMINATION
OF THE EMPLOYEE INVOLVED FOR FAILURE TO MEET THE STANDARDS FOR
SATISFACTORY PERFORMANCE. THE UNION SUBSEQUENTLY FILED AN UNFAIR LABOR
PRACTICE COMPLAINT ALLEGING, IN PERTINENT PART, THAT THE ACTIVITY HAD
VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER.
THE ASSISTANT SECRETARY FOUND THAT THE MEETINGS, CONVENED BY
MANAGEMENT FOR THE EXPLICIT PURPOSE OF NOTIFYING THE PROBATIONARY
EMPLOYEES OF THEIR TERMINATION, WERE "FORMAL DISCUSSIONS" WITHIN THE
MEANING OF SECTION 10(E) OF THE ORDER. /3/ IN THIS REGARD, HE NOTED
THAT "THE MEETINGS WHICH WERE HELD HEREIN WERE CALLED SPECIFICALLY FOR
THE PURPOSE OF TERMINATING THE PROBATIONARY EMPLOYEES AND NOT FOR
INVESTIGATORY PURPOSES," AND THAT THEY INVOLVED THE TERMINATION OF
PROBATIONARY EMPLOYEES "WHO, EXCEPT IN A LIMITED NUMBER OF INSTANCES NOT
RELEVANT HERE, HAVE NO STATUTORY APPEAL RIGHTS AND, THEREFORE, NO RIGHT
OF REPRESENTATION UPON APPEAL FROM AN AGENCY ACTION." THE ASSISTANT
SECRETARY FURTHER STATED:
SUCH MEETINGS NOT ONLY SUBSTANTIALLY AFFECTED PERSONNEL POLICIES AND
PRACTICES AS THEY
RELATED TO THE SPECIFIC EMPLOYEES' JOB SECURITY, BUT THEY ALSO
SUBSTANTIALLY AFFECT PERSONNEL
POLICIES AND PRACTICES AS THEY PERTAIN TO OTHER EMPLOYEES IN THE
BARGAINING UNIT. THUS, THE
UNION REPRESENTATIVE WHOSE REPRESENTATION THE PROBATIONARY EMPLOYEES
WERE SEEKING WOULD, IN
EFFECT, BE SAFEGUARDING NOT ONLY INTERESTS OF THE PARTICULAR
EMPLOYEES INVOLVED, BUT ALSO THE
INTERESTS OF OTHERS IN THE BARGAINING UNIT BY EXERCISING VIGILANCE TO
MAKE CERTAIN THAT THE
AGENCY DOES NOT INITIATE OR CONTINUE A PRACTICE OF IMPOSING
PUNISHMENT UNJUSTLY. THE
REPRESENTATIVE'S PRESENCE IS AN ASSURANCE TO OTHER PROBATIONARY
EMPLOYEES IN THE BARGAINING
UNIT THAT THEY TOO CAN OBTAIN HIS AID AND PROTECTION IF CALLED UPON
TO ATTEND A LIKE MEETING
WHERE SUCH DISCIPLINE IS IMPOSED.
FURTHER, IN MY VIEW, SUCH RIGHT OF UNION REPRESENTATION WILL
EFFECTUATE THE PURPOSES AND
POLICIES OF THE ORDER BY ALLOWING THE INDIVIDUAL EMPLOYEE WHO MAY BE
TOO FEARFUL OR
INARTICULATE TO RELATE ACCURATELY WHAT OCCURRED, OR TOO IGNORANT OF
THE LAW OF THE SHOP TO
RAISE EXTENUATING FACTORS, THE BENEFIT OF A KNOWLEDGEABLE UNION
REPRESENTATIVE. IN VIEW OF
THE PROBATIONARY STATUS OF THE EMPLOYEES IN THIS CASE AND THEIR LACK
OF APPEAL RIGHTS, THIS,
INDEED, MAY BE THEIR ONLY OPPORTUNITY FOR KNOWLEDGEABLE UNION
REPRESENTATION.
BASED UPON THE FOREGOING, THE ASSISTANT SECRETARY CONCLUDED THAT THE
ACTIVITY'S REFUSAL TO ALLOW THE UNION, AS EXCLUSIVE REPRESENTATIVE OF
THE UNIT EMPLOYEES INVOLVED, THE RIGHT TO PARTICIPATE FULLY IN SUCH
DISCUSSIONS VIOLATED SECTION 19(A)(6). FURTHER, NOTING "THE VESTED
DERIVATIVE RIGHT OF REPRESENTATION AT FORMAL MEETINGS UNDER SECTION
10(E) WHEN THE EMPLOYEE DEEMS SUCH REPRESENTATION IMPERATIVE FOR THE
PROTECTION OF HIS OWN EMPLOYMENT INTERESTS," THE ASSISTANT SECRETARY
FOUND THAT THE ACTIVITY'S DENIAL OF THE EMPLOYEES' REQUEST FOR UNION
REPRESENTATION WAS VIOLATIVE OF SECTION 19(A)(1) OF THE ORDER.
THE AGENCY APPEALED THE ASSISTANT SECRETARY'S DECISION TO THE
COUNCIL. THE COUNCIL ACCEPTED THE AGENCY'S PETITION FOR REVIEW,
CONCLUDING THAT THE ASSISTANT SECRETARY'S DECISION RAISES A MAJOR POLICY
ISSUE, NAMELY: "WHETHER THE ASSISTANT SECRETARY'S INTERPRETATION AND
APPLICATION OF SECTION 10(E) OF THE ORDER IN THE CIRCUMSTANCES OF THIS
CASE ARE CONSISTENT WITH THE PURPOSES AND POLICIES OF THE ORDER." THE
COUNCIL ALSO GRANTED THE AGENCY'S REQUEST FOR A STAY, HAVING CONCLUDED
THAT THE REQUEST MET THE CRITERIA SET FORTH IN SECTION 2411.47(E)(2) OF
ITS RULES. THE UNION FILED A BRIEF ON THE MERITS WITH THE COUNCIL AS
PROVIDED IN SECTION 2411.16 OF THE COUNCIL'S RULES. THE INTERNATIONAL
ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, FILED AN
AMICUS CURIAE BRIEF, AS PROVIDED IN SECTION 2411.49 OF THE COUNCIL'S
RULES.
OPINION
AS NOTED ABOVE, THE COUNCIL CONCLUDED THAT THE DECISION OF THE
ASSISTANT SECRETARY HEREIN RAISED A MAJOR POLICY ISSUE AS TO WHETHER HIS
INTERPRETATION AND APPLICATION OF SECTION 10(E) OF THE ORDER IN THE
CIRCUMSTANCES OF THIS CASE WERE CONSISTENT WITH THE PURPOSES AND
POLICIES OF THE ORDER. MORE PARTICULARLY, THE ISSUE PRESENTED CONCERNS
THE PROPRIETY OF THE ASSISTANT SECRETARY'S INTERPRETATION AND
APPLICATION OF THE LAST SENTENCE OF SECTION 10(E) IN FINDING "THAT THE
MEETINGS . . . , CALLED FOR THE EXPLICIT PURPOSE OF TERMINATING
PROBATIONARY EMPLOYEES, WERE FORMAL DISCUSSIONS WITHIN THE MEANING OF
(S)ECTION 10(E) OF THE ORDER" WHICH "SUBSTANTIALLY AFFECTED PERSONNEL
POLICIES AND PRACTICES AS THEY RELATED TO THE SPECIFIC EMPLOYEES' JOB
SECURITY . . . (AS WELL AS) OTHER EMPLOYEES IN THE BARGAINING UNIT,"
AND THAT THE ACTIVITY'S REFUSAL TO PERMIT FULL PARTICIPATION AT THOSE
MEETINGS BY THE EXCLUSIVE REPRESENTATIVE WAS IN VIOLATION OF SECTION
19(A)(1) AND (6) OF THE ORDER.
THE LAST SENTENCE OF SECTION 10(E) PROVIDES:
THE (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.
WITH REGARD TO THIS SENTENCE, THE COUNCIL HAS PREVIOUSLY STATED IN
ITS LYNDON B. JOHNSON SPACE CENTER (NASA) DECISION: /4/
THE LANGUAGE OF THE PERTINENT PORTION OF SECTION 10(E) . . . MAKES
CLEAR THAT IT IS NOT THE
INTENT 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.
THUS, BY DISCUSSION OR MEETING FOR WHICH REPRESENTATION IS SOUGHT
MUST BE "FORMAL" IN NATURE AND THE TOPIC OF THE MEETING MUST BE ONE OR
MORE OF THE MATTERS ENUMERATED IN THE LAST SENTENCE OF SECTION 10(E),
I.E., "GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS
AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT." BOTH
ELEMENTS MUST EXIST FOR THE RIGHT OF REPRESENTATION UNDER SECTION 10(E)
TO ACCRUE EITHER TO THE EXCLUSIVE REPRESENTATIVE OR, DERIVATIVELY, TO
THE EMPLOYEE INVOLVED. /5/
AS TO THE FIRST ELEMENT, THE QUESTION OF WHETHER A MEETING IS
"FORMAL" OR INFORMAL IS ESSENTIALLY A FACTUAL DETERMINATION WHICH, IN
OUR VIEW, IS A MATTER BEST RESOLVED ON A CASE-BY-CASE BASIS BY THE
ASSISTANT SECRETARY AS FINDER OF FACT, TAKING INTO CONSIDERATION AND
WEIGHING A VARIETY OF FACTORS SUCH AS: WHO CALLED THE MEETING AND FOR
WHAT PURPOSE; WHETHER WRITTEN NOTICE WAS GIVEN; WHERE THE MEETING WAS
HELD; WHO ATTENDED; WHETHER A RECORD OR NOTES OF THE MEETING WERE
KEPT; AND WHAT WAS ACTUALLY DISCUSSED. /6/ IN THE INSTANT CASE, THE
ASSISTANT SECRETARY FOUND THE MEETINGS TO BE FORMAL BECAUSE, INTER ALIA,
THEY "WERE CALLED SPECIFICALLY FOR THE PURPOSE OF TERMINATING THE
PROBATIONARY EMPLOYEES AND NOT FOR INVESTIGATORY PURPOSES." AS
PREVIOUSLY NOTED, THE FINDER OF FACT MAY APPROPRIATELY RELY UPON THE
PURPOSE(S) FOR WHICH A MEETING WAS CALLED IN DECIDING WHETHER IT
CONSTITUTES A "FORMAL DISCUSSION." THE COUNCIL, THEREFORE, IN ACCORDANCE
WITH ITS CONSISTENT POLICY, WILL NOT PASS UPON THE ASSISTANT SECRETARY'S
ADEQUATELY SUPPORTED FACTUAL DETERMINATION IN THIS REGARD. /7/
WE NEXT TURN TO THE SECOND ELEMENT REQUIRED TO BE MET BY THE LAST
SENTENCE OF SECTION 10(E), I.E., WHETHER THE FORMAL DISCUSSION CONCERNS
"GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS
AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT." CLEARLY,
THE SUBJECT OF THE INSTANT DISCUSSIONS DID NOT CONCERN A GRIEVANCE.
THUS, THE ASSISTANT SECRETARY DID NOT FIND, AND IT HAS NOT BEEN ALLEGED,
EITHER THAT A GRIEVANCE WAS FILED BY OR ON BEHALF OF THE FOUR
PROBATIONARY EMPLOYEES CONCERNING THE TERMINATION OF THEIR EMPLOYMENT AT
ANY TIME PRIOR TO THE MEETINGS AT ISSUE HEREIN, OR THAT THE SUBJECT OF
SUCH MEETINGS WAS GRIEVANCES. /8/ NOR DO WE FIND THAT THE DISCUSSIONS
HEREIN CONCERNED "PERSONNEL POLICIES" AS THAT TERM IS USED IN SECTION
10(E) OF THE ORDER. /9/
THUS, THE ISSUE HERE IS ULTIMATELY NARROWED TO WHETHER THE SUBJECT
MEETINGS CONCERNED "OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS
OF EMPLOYEES IN THE UNIT." AS PREVIOUSLY INDICATED, THE MEETINGS WERE
CALLED FOR THE SPECIFIC PURPOSE OF NOTIFYING THE FOUR PROBATIONERS THAT
AGENCY MANAGEMENT HAD DECIDED TO TERMINATE THEIR EMPLOYMENT. IN THIS
REGARD, THE INSTANT APPEAL BEARS A SIMILARITY TO THE COUNCIL'S
LOUISVILLE DECISION, /10/ WHEREIN THE TERMINATION OF AN EMPLOYEE
EXCLUSIVELY REPRESENTED BY A LABOR ORGANIZATION ALSO WAS INVOLVED. IN
LOUISVILLE, AFTER A UNIT EMPLOYEE WAS NOTIFIED OF HIS PROPOSED REMOVAL,
THE EMPLOYEE'S EXCLUSIVE REPRESENTATIVE SOUGHT AN EXTENSION OF THE TIME
LIMIT SPECIFIED FOR REPLY TO THE NOTICE ON THE GROUND THAT THE EMPLOYEE
HAD BEEN HOSPITALIZED, BUT THE REQUEST WAS DENIED. THE COUNCIL,
INTERPRETING THE FIRST SENTENCE OF SECTION 10(E), CONCLUDED 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 DESIGNATES ANOTHER REPRESENTATIVE, DOES NOT CONSTITUTE AN
UNFAIR LABOR PRACTICE. IN ITS DECISION (3 FLRC 686 AT 691), THE COUNCIL
RULED THAT ADVERSE ACTION PROCEEDINGS, "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."
SIMILARLY, IN THE INSTANT CASE, WHILE THE EMPLOYEES INVOLVED ARE
PROBATIONARY EMPLOYEES POSSESSING LIMITED STATUTORY APPEAL RIGHTS
(RATHER THAN THE CAREER EMPLOYEE IN LOUISVILLE), THE SUBJECT OF THE
MEETINGS IN BOTH CASES WAS NEVERTHELESS "FUNDAMENTALLY PERSONAL TO THE
INDIVIDUAL(S) AND ONLY REMOTELY RELATED TO THE RIGHTS OF THE OTHER UNIT
EMPLOYEES." AS SUCH, IN THE COUNCIL'S OPINION, THE MEETINGS MAY NOT
PROPERLY BE FOUND TO CONCERN "OTHER MATTERS AFFECTING GENERAL WORKING
CONDITIONS OF EMPLOYEES IN THE UNIT" WITHIN THE MEANING OF SECTION 10(E)
OF THE ORDER.
ACCORDINGLY, AS THE "FORMAL DISCUSSIONS" HEREIN DID NOT CONCERN
"GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS
AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT" UNDER THE
LAST SENTENCE OF SECTION 10(E), THE EXCLUSIVE REPRESENTATIVE HAD NO
RIGHT GUARANTEED BY THE ORDER TO BE REPRESENTED AT THE MEETINGS IN
QUESTION, AND THE INDIVIDUAL PROBATIONARY EMPLOYEES THEREFORE HAD NO
DERIVATIVE RIGHT TO UNION REPRESENTATION IN THE CIRCUMSTANCES OF THIS
CASE. CONSEQUENTLY, THE ASSISTANT SECRETARY'S CONCLUSION THAT THE
ACTIVITY VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER HEREIN BY
DENYING UNION REPRESENTATION TO FOUR PROBATIONARY EMPLOYEES, BASED UPON
HIS INTERPRETATION OF THE REQUIREMENTS OF SECTION 10(E), IS INCONSISTENT
WITH THE PURPOSES AND POLICIES OF THE ORDER AND MUST BE SET ASIDE.
THIS IS NOT TO SAY, HOWEVER, THAT UNIONS AND PROBATIONARY EMPLOYEES
ARE WITHOUT RECOURSE IN THESE AND SIMILAR CIRCUMSTANCES. THUS, WHILE THE
COUNCIL HAS CONCLUDED THAT THE ASSISTANT SECRETARY'S 19(A)(1) AND (6)
FINDING IN THE INSTANT CASE MUST BE SET ASIDE, THE COUNCIL ALSO
RECOGNIZED IN LOUISVILLE (3 FLRC 686 AT 691) THAT " . . . 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 LAWS AND
REGULATIONS." FURTHER, THE COUNCIL RULED IN VANDENBERG AIR FORCE BASE
/11/ THAT "(T)HE RELIEF FOR ALLEGED VIOLATIONS OF NEGOTIATED RIGHTS . .
. WOULD BE AVAILABLE THROUGH THE NEGOTIATED GRIEVANCE PROCEDURE WHICH
SECTION 13 OF THE ORDER REQUIRES THE PARTIES TO INCLUDE IN THEIR
AGREEMENT." (FOOTNOTE OMITTED.) THUS, TO THE EXTENT CONSISTENT WITH LAW
AND REGULATION, THE PARTIES COULD AGREE TO NEGOTIATE A PROCEDURE
PERMITTING UNION REPRESENTATION OF PROBATIONARY EMPLOYEES PRIOR TO THEIR
TERMINATION. /12/ IN THE INSTANT CASE, THE UNION HAS NOT CONTENDED THAT
IT HAD ANY RIGHT, ARISING FROM THE AGREEMENT, TO REPRESENT PROBATIONARY
EMPLOYEES DURING TERMINATION PROCEEDINGS. FURTHERMORE, AS PREVIOUSLY
NOTED, THE PARTIES' NEGOTIATED AGREEMENT EXPRESSLY BARRED GRIEVANCES AND
ARBITRATION OVER THE TERMINATION OF PROBATIONARY EMPLOYEES.
IN SUMMARY, FOR THE REASONS SET FORTH ABOVE, THE COUNCIL CONCLUDES
THAT THE ASSISTANT SECRETARY'S INTERPRETATION AND APPLICATION OF SECTION
10(E) OF THE ORDER IN THE CIRCUMSTANCES OF THIS CASE WERE NOT CONSISTENT
WITH THE PURPOSES AND POLICIES OF THE ORDER.
CONCLUSION
THEREFORE, PURSUANT TO SECTION 2411.18(B) OF THE COUNCIL'S RULES OF
PROCEDURE, WE SET ASIDE THE DECISION AND ORDER OF THE ASSISTANT
SECRETARY AND REMAND THIS MATTER FOR APPROPRIATE ACTION CONSISTENT WITH
THIS DECISION.
BY THE COUNCIL
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
ISSUED: DECEMBER 28, 1978
/1/ SECTION 19(A) OF THE ORDER PROVIDES IN PERTINENT PART:
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.
/2/ IN THIS CONNECTION, THE ACTIVITY TOOK THE POSITION THAT THE
GOVERNING REGULATION WHICH CONTAINED THE PROCEDURE FOR TERMINATING
TEMPORARY AND PROBATIONARY EMPLOYEES, NAVSHIPDNOR/SURSHIPFIVE
INSTRUCTION 12300.1, DID NOT ENTITLE THE PROBATIONARY EMPLOYEES TO SUCH
REPRESENTATION. AS FOUND BY THE ASSISTANT SECRETARY, INSTRUCTION
12300.1 MADE NO MENTION OF ANY "PRE-ACTION INVESTIGATION" FOR
PROBATIONARY EMPLOYEES SUCH AS DESCRIBED IN ARTICLE 31 (DISCIPLINARY AND
ADVERSE ACTIONS), SECTION 2 OF THE PARTIES' NEGOTIATED AGREEMENT, WHICH
PROVIDES IN PERTINENT PART:
WHEN IT IS DETERMINED BY THE SUPERVISOR HAVING AUTHORITY THAT FORMAL
DISCIPLINARY OR
ADVERSE ACTION MAY BE NECESSARY, AN INVESTIGATOR WILL NORMALLY BE
APPOINTED WITHIN 5 WORKDAYS
TO CONDUCT A PRE-ACTION INVESTIGATION OF THE INCIDENT OR KNOWLEDGE OF
THE INCIDENT BY THE
SUPERVISOR. . . . THE INVESTIGATOR ASSIGNED WILL CONDUCT WHATEVER
INQUIRY IS NECESSARY TO
DETERMINE AND DOCUMENT THE FACTS. IN ALL CASES . . . A DISCUSSION
WILL BE HELD WITH THE
EMPLOYEE AS PART OF THE PRE-ACTION INVESTIGATION. IT IS AGREED THAT
DURING ANY DISCUSSION
HELD WITH THE EMPLOYEE AS PART OF THE PRE-ACTION INVESTIGATION THE
EMPLOYEE SHALL BE ADVISED
OF HIS RIGHT TO BE REPRESENTED BY THE COGNIZANT (UNION) STEWARD. IF
THE EMPLOYEE DECLINES
REPRESENTATION, THE COGNIZANT (UNION) STEWARD OR APPROPRIATE CHIEF
STEWARD IN HIS ABSENCE
SHALL BE GIVEN THE OPPORTUNITY TO PRESENT TO REPRESENT THE COUNCIL.
. . .
IN THIS REGARD, AS REFLECTED IN THE DOCUMENTS ACCOMPANYING THE
AGENCY'S APPEAL IN THIS CASE, APPENDIX 2 OF THE PARTIES' NEGOTIATED
AGREEMENT FURTHER PROVIDED, IN PART, AS FOLLOWS:
APPENDIX 2: EXCLUSIONS FROM GRIEVANCE AND ARBITRATION
1. MATTERS FOR WHICH STATUTORY APPEALS PROCEDURES EXIST OR WHICH ARE
SUBJECT TO FINAL
ADMINISTRATIVE REVIEW OR REGULATIONS OF THE CIVIL SERVICE COMMISSION
(CSC) SUCH AS:
. . . .
O. SEPARATION FOR FAILURE TO SATISFACTORILY COMPLETE A TRAIL OR
PROBATIONARY PERIOD
APPEALABLE UNDER PART 315 OF CSC REGULATIONS.
/3/ SECTION 1(E) PROVIDES AS FOLLOWS:
(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.
/4/ NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA), WASHINGTON,
D.C. AND LYNDON B. JOHNSON SPACE CENTER (NASA), HOUSTON, TEXAS, A/SLMR
NO. 457, 3 FLRC 617 (FLRC NO. 74A-95 (SEPT. 26, 1975), REPORT NO. 84),
AT 621.
/5/ STATEMENT ON MAJOR POLICY ISSUE, 4 FLRC 709 (FLRC NO. 75P-2 (DEC.
2, 1976),REPORT NO. 116), AT 711.
/6/ THE ASSISTANT SECRETARY HAS IDENTIFIED AND APPLIED THESE AND
OTHER FACTORS IN A NUMBER OF PREVIOUS DECISIONS. SEE, E.G., U.S. ARMY
TRAINING CENTER, INFANTRY, FORT JACKSON LAUNDRY FACILITY, FORT JACKSON,
SOUTH CAROLINA, A/SLMR NO. 242 (JAN. 17, 1973); U.S. DEPARTMENT OF THE
ARMY, TRANSPORTATION MOTOR POOL, FORT WAINWRIGHT, ALASKA, A/SLMR NO. 278
(JUNE 25, 1973); FEDERAL AVIATION ADMINISTRATION, NATIONAL AVIATION
FACILITIES EXPERIMENTAL CENTER, ATLANTIC CITY, NEW JERSEY, A/SLMR NO.
438 (SEPT. 30, 1974); SOCIAL SECURITY ADMINISTRATION, GREAT LAKES
PROGRAM CENTER, CHICAGO, ILLINOIS, A/SLMR NO. 804 (FEB. 18, 1977); AND
DEPARTMENT OF THE TREASURY, U.S. CUSTOMS SERVICE, REGION VII, LOS
ANGELES, CALIFORNIA, A/SLMR NO.926 (NOV. 23, 1977). WITH REGARD TO WHAT
WAS ACTUALLY DISCUSSED AT SUCH MEETING(S), THE ASSISTANT SECRETARY HAS
FOUND DISCUSSIONS TO BE "FORMAL" WHEN THEY HAVE RAMIFICATIONS FOR ALL
UNIT EMPLOYEES (A/SLMR NO. 242) OR WHEN THEY ARE INTEGRALLY RELATED TO
THE FORMAL GRIEVANCE PROCESS (A/SLMR NO. 926), BUT HAS FOUND DISCUSSIONS
TO BE INFORMAL WHEN THEY ARE MERE "COUNSELLING" SESSIONS INVOLVING
INDIVIDUAL EMPLOYEES' CONDUCT (SEE, E.G., INTERNAL REVENUE SERVICE,
MID-ATLANTIC SERVICE CENTER, A/SLMR NO. 421 (AUG. 26, 1974)) OR CONCERN
CONVERSATIONS BETWEEN INDIVIDUAL EMPLOYEES AND THEIR SUPERVISORS IN THE
COURSE OF DAY-TO-DAY OPERATIONS (SEE, GREAT LAKES CASE, A/SLMR NO. 804).
/7/ HOWEVER, TO THE EXTENT THAT THE ASSISTANT SECRETARY ALSO MAY HAVE
RELIED UPON THE PROBATIONARY STATUS OF THE EMPLOYEES IN QUESTION AND
THEIR LACK OF STATUTORY APPEAL OR REPRESENTATION RIGHTS FOLLOWING
MANAGEMENT'S TERMINATION OF THEIR EMPLOYMENT IN FINDING THAT THE
MEETINGS WERE FORMAL, SUCH RELIANCE IS INCONSISTENT WITH THE CSC'S
INTERPRETATION AND APPLICATION OF THE RELEVANT PROVISIONS IN THE FEDERAL
PERSONNEL MANUAL REGARDING THE STATUS AND RIGHTS OF PROBATIONARY
EMPLOYEES AND THEREFORE MUST BE SET ASIDE AS INCONSISTENT WITH THE
PURPOSES AND POLICIES OF THE ORDER. SEE FPM CHAPTER 315, SUBCHAPTER 8-1
("PURPOSE OF PROBATIONARY PERIOD") WHICH STATES THAT " . . . THE
PROBATIONARY PERIOD DESCRIBED IN THIS SUBCHAPTER (IS) A FINAL AND HIGHLY
SIGNIFICANT STEP IN THE EXAMINING PROCESS" DURING WHICH A PROBATIONARY
EMPLOYEE "MAY BE SEPARATED FROM THE SERVICE WITHOUT UNDUE FORMALITY IF
CIRCUMSTANCES WARRANT," AND SUBCHAPTER 8-4 PERTAINING TO THE SEPARATION
OF PROBATIONERS FOR UNSATISFACTORY PERFORMANCE OR CONDUCT.
/8/ MOREOVER, AS PREVIOUSLY NOTED, APPENDIX 2 OF THE PARTIES'
NEGOTIATED AGREEMENT (N. 2, SUPRA) EXPLICITLY BARRED SEPARATION OF
PROBATIONERS FROM THE GRIEVANCE AND ARBITRATION PROCESS, AND THE
COGNIZANT INTERNAL REGULATION DID NOT PROVIDE FOR GRIEVANCES OVER SUCH
ACTION.
/9/ IN THIS REGARD WE NOTE THE UNDISPUTED FACTUAL DETERMINATION
(RECOMMENDED DECISION AND ORDER OF THE ADMINISTRATIVE LAW JUDGE AT 15),
TACITLY ADOPTED BY THE ASSISTANT SECRETARY, THAT THE EMPLOYEES'
SUPERVISOR "WAS NOT A PERSONNEL OFFICER NOR WAS HE SHOWN TO HAVE HAD
AUTHORITY TO ESTABLISH PERSONNEL POLICIES OR PRACTICES." RATHER, IT WAS
FOUND THAT THE SUPERVISOR "WAS THE HEAD OF . . . ONLY ONE OF NUMEROUS
COMPONENTS OF THE . . . (A)CTIVITY, . . . DID NOT ESTABLISH A POLICY OR
PRACTICE EVEN FOR (THAT COMPONENT BUT) SIMPLY REACHED A CONCLUSION AND
ACTED IN EACH CASE (AND) . . . (I)N ANY FUTURE CASE . . . (HE) OR ANY
ONE ELSE WOULD NOT BE BOUND TO REACH THE SAME RESULT BECAUSE OF WHAT WAS
DONE IN THIS CASE."
/10/ UNITED STATES DEPARTMENT OF THE NAVY, NAVAL ORDNANCE STATION,
LOUISVILLE, KENTUCKY, A/SLMR NO. 400, 3 FLRC 686 (FLRC NO. 74A-54 (OCT.
23, 1975), REPORT NO. 87).
/11/ DEPARTMENT OF THE AIR FORCE, BASE PROCUREMENT OFFICE, VANDENBERG
AIR FORCE BASE, CALIFORNIA, A/SLMR NO. 485, 4 FLRC 586 (FLRC NO. 75A-25
(NOV. 19, 1976), REPORT NO. 118), AT 595.
/12/ SEE ALSO PUGET SOUND NAVAL SHIPYARD, BREMERTON, WASHINGTON,
ASSISTANT SECRETARY CASE NO. 71-3492, 4 FLRC 620 (FLRC NO. 76A-57 (DEC.
7, 1976), REPORT NO. 118), WHEREIN THE COUNCIL DENIED REVIEW OF THE
ASSISTANT SECRETARY'S FINDING THAT A GRIEVANCE CONCERNING THE
TERMINATION OF A PROBATIONARY EMPLOYEE FOR ALLEGED MISUSE OF ANNUAL AND
SICK LEAVE WAS ON A MATTER SUBJECT TO THE PARTIES' NEGOTIATED GRIEVANCE
PROCEDURE IN THE CIRCUMSTANCES OF THAT CASE.
6 FLRC 1071; FLRC NO. 77A-140; DECEMBER 28, 1978.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3632
(UNION)
AND
CORPUS CHRISTI ARMY DEPOT
(ACTIVITY)
FLRC NO. 77A-140
DECISION ON NEGOTIABILITY ISSUES
(SYNOPSIS) FLRC NO. 77A-140
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3632 AND CORPUS
CHRISTI ARMY DEPOT. THE DISPUTE INVOLVED UNION PROPOSALS RELATING TO
(1) UNION RECOGNITION; (2) STAGGERED WORK SHIFTS; (3) WORK TO BE
PERFORMED ON INVOLUNTARY SPLIT SHIFTS; (4) DIRECTION OF EMPLOYEES IN
CERTAIN CIRCUMSTANCES; (5) SCHEDULING OF TRAVEL AND COMPENSATORY TIME;
(6) INTERNAL SECURITY PRACTICES; (7) AND (8) TRAINING; (9) AND (10)
DETAILS TO SUPERVISORY POSITIONS; (11) ASSIGNMENT OF WORK; (12) UNION
PARTICIPATION IN MANPOWER SURVEY; (13) DEMONSTRATIONS OF NEW PRODUCTS
AND METHODS BY PRIVATE CONTRACTORS; (14) EXPERIMENTATION BY EMPLOYEES;
(15) ASSIGNMENT OF DUTIES TO DEMOTED EMPLOYEES; (16) DELAY OF DEMOTION
ACTIONS; (17) RECOGNITION OF AND AWARDS FOR PROFESSIONAL EMPLOYEES;
(18) PROVISION OF FACILITIES, EQUIPMENT AND SUPPORT PERSONNEL FOR
PROFESSIONAL EMPLOYEES; (19) INVESTIGATION OF STAFFING REQUIREMENTS;
(10), (21) AND (22) UNION PARTICIPATION ON SELECTION PANELS, IN THE
DEVELOPMENT OF QUALIFICATION CRITERIA, AND IN DETERMINING CRITERIA FOR
HIGHLY QUALIFIED CANDIDATES, RESPECTIVELY; (23) DELAY OF POSITION
DISSOLUTIONS OR DOWNGRADINGS; AND (24) INCENTIVE AWARDS.
COUNCIL ACTION (DECEMBER 28, 1978). AS FULLY DETAILED IN ITS
DECISION, THE COUNCIL, PURSUANT TO SECTION 2411.28 OF ITS RULES, SET
ASIDE THE AGENCY'S DETERMINATIONS OF NONNEGOTIABILITY AS TO A PORTION OF
(2), INSOFAR AS IT CONTEMPLATED MERELY CHANGING THE STARTING AND ENDING
TIME OF AN EXISTING WORK SHIFT, AND (15) AND (19); AND SUSTAINED THE
DETERMINATIONS OF NONNEGOTIABILITY AS TO (2), EXCEPT AS NOTED ABOVE, AND
AS TO THE REMAINING 21 PROPOSALS.
UNION PROPOSAL I
ARTICLE 7, SECTION 5.
BOTH PARTIES WILL BE GOVERNED BY THE (APPLICABLE) REGULATION OF THE
CIVIL SERVICE
COMMISSION, DEPARTMENT OF DEFENSE AND THE ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT
RELATIONS WHEN DEALING WITH LABOR ORGANIZATIONS REQUESTING A
DETERMINATION OF THE UNION'S
RECOGNITION.
AGENCY DETERMINATION /1/
THE AGENCY DETERMINED THAT INSOFAR AS THE PROPOSAL ADDRESSES THE
METHODS AND MEANS BY WHICH THE EXCLUSIVE REPRESENTATIVE OF BARGAINING
UNIT EMPLOYEES WILL BE CHOSEN AND CERTIFIED, A MATTER WITHIN THE
EXCLUSIVE AUTHORITY OF THE ASSISTANT SECRETARY UNDER SECTION 6(A)(1) OF
THE ORDER, RATHER THAN PERSONNEL POLICIES, PRACTICES AND MATTERS
AFFECTING WORKING CONDITIONS OF UNIT EMPLOYEES, IT CONCERNS A MATTER
OUTSIDE THE BARGAINING OBLIGATION ESTABLISHED BY SECTION 11(A) OF THE
ORDER AND IS, THEREFORE, NONNEGOTIABLE.
QUESTION HERE BEFORE THE COUNCIL
THE QUESTION IS WHETHER THE PROPOSAL CONFLICTS WITH SECTION 6(A)(1)
AND (2) OF THE ORDER. /2/
OPINION
CONCLUSION: THE PROPOSAL CONFLICTS WITH SECTION 6(A)(1) AND (2) OF
THE ORDER. THUS, THE AGENCY DETERMINATION THAT THE PROPOSAL IS
NONNEGOTIABLE WAS PROPER AND, PURSUANT TO SECTION 2411.28 OF THE
COUNCIL'S RULES, IS SUSTAINED. /3/
REASONS: SECTION 6(A) OF EXECUTIVE ORDER 11491 /4/ ASSIGNS TO THE
ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS (A/SLMR) THE
AUTHORITY TO RESOLVE REPRESENTATION QUESTIONS. THE "LEGISLATIVE
HISTORY" OF THIS SECTION ESTABLISHES THAT THIS AUTHORITY WAS TO BE
EXCLUSIVELY EXERCISED BY THE A/SLMR SUBJECT ONLY TO A LIMITED APPEAL TO
THE FEDERAL LABOR RELATIONS COUNCIL. /5/ ACCORDING TO THE UNION, THE
INTENT OF THE PROPOSAL IS TO "PROVIDE A BASIS FOR CONTRACTUAL
ENFORCEMENT OF THE CITED REGULATORY PROVISIONS UNDER THE NEGOTIATED
PROCEDURE." THUS THE UNION'S PROPOSAL, AS INTENDED TO BE APPLIED, WOULD
ESTABLISH A CONTRACTUAL BASIS FOR THE RESOLUTION OF CERTAIN
REPRESENTATION QUESTIONS. IN THIS REGARD, THE PROPOSAL CONFLICTS WITH
THE EXCLUSIVE AUTHORITY OF THE A/SLMR TO RESOLVE SUCH REPRESENTATION
QUESTIONS UNDER SECTION 6(A)(1) AND (2) OF THE ORDER AND THUS, IS
NONNEGOTIABLE.
UNION PROPOSAL II
ARTICLE 9, SECTION 1.A.
WORKING HOURS ON EIGHT HOUR SHIFTS WILL BE ESTABLISHED BY MANAGEMENT.
WHEN FEASIBLE,
STAGGERED SHIFTS WILL BE USED TO ASSURE THAT PROFESSIONAL EXPERTISE
IS AVAILABLE FOR AT LEAST
A PORTION OF ALL THE WORKING SHIFTS IN THE SHOPS SUPPORTED.
AGENCY DETERMINATION
THE AGENCY DETERMINED THAT THE PROPOSAL CONCERNS A MATTER INTEGRALLY
RELATED TO THE STAFFING PATTERNS OF THE ACTIVITY SINCE THE
IMPLEMENTATION OF STAGGERED SHIFTS WOULD IMPACT ON THE NUMBERS, TYPES
AND GRADES OR EMPLOYEES ASSIGNED TO A SHIFT OR TOUR OF DUTY AND, HENCE,
IS EXCEPTED FROM THE OBLIGATION TO BARGAIN UNDER SECTION 11(B).
QUESTION HERE BEFORE THE COUNCIL
THE QUESTION IS WHETHER THE PROPOSAL IS EXCEPTED FROM THE OBLIGATION
TO BARGAIN BY SECTION 11(B) OF THE ORDER.
OPINION
CONCLUSION: THE PROPOSAL IS NOT EXCEPTED FROM THE OBLIGATION TO
BARGAIN BY SECTION 11(B) OF THE ORDER BUT IS WITHIN THE OBLIGATION TO
BARGAIN UNDER SECTION 11(A) OF THE ORDER. ACCORDINGLY, THE AGENCY
DETERMINATION THAT THE PROPOSAL IS NONNEGOTIABLE WAS IMPROPER AND,
PURSUANT TO SECTION 2411.28 OF THE COUNCIL'S RULES, IS SET ASIDE. /6/
REASONS: THE AGENCY ASSERTS THAT THE UNION'S PROPOSAL IS EXCEPTED
FROM THE OBLIGATION TO BARGAIN BY SECTION 11(B) OF THE ORDER SINCE "THE
IMPLEMENTATION OF STAGGERED SHIFTS OBVIOUSLY IMPACTS ON (STAFFING
PATTERNS) (INDEED THE REQUIREMENT FOR 'PROFESSIONAL EXPERTISE' MAY EVEN
MANDATE THAT A SPECIFIC TYPE OF EMPLOYEE BE ASSIGNED TO A STAGGERED
SHIFT)." WE DISAGREE.
IN OUR OPINION, THE AGENCY HAS MISINTERPRETED THE UNION'S PROPOSAL.
IN THIS REGARD, THERE IS NOTHING IN THE LANGUAGE OF THE PROPOSAL OR IN
THE EXPRESSED INTENT OF THE UNION AS TO THE MEANING OF THAT LANGUAGE
WHICH INDICATES THAT THE PROPOSAL WOULD REQUIRE ANYTHING MORE THAN
ADJUSTMENT OF THE STARTING AND ENDING TIMES OF VARIOUS EXISTING SHIFTS
SO THAT TWO OR MORE SHIFTS OVERLAP. IN OTHER WORDS, WE DO NOT PERCEIVE
THIS PROPOSAL AS REQUIRING THE CREATION OF SHIFTS WHERE NONE CURRENTLY
EXISTS OR THE MOVEMENT OF POSITIONS OR PERSONNEL AMONG SHIFTS IN ORDER
TO MAINTAIN "PROFESSIONAL EXPERTISE." RATHER, THE PROPOSAL CONCERNS
MERELY THE STARTING AND ENDING TIMES OF THE SHIFTS OF PROFESSIONAL
EMPLOYEES AND WE SO INTERPRET THE PROPOSAL FOR PURPOSES OF THIS
DECISION. OF COURSE ANY REQUIREMENTS TO CREATE SHIFTS OR TO MOVE
PERSONNEL AMONG SHIFTS WOULD, PERFORCE BE DETERMINATIVE OF AGENCY
STAFFING PATTERNS AND THEREFORE BE EXCLUDED FROM THE OBLIGATION TO
BARGAIN BY SECTION 11(B) OF THE ORDER.
HENCE, SINCE, IN OUR VIEW, THE UNION'S PROPOSAL DOES NOT CONCERN THE
AGENCY'S STAFFING PATTERNS IT IS NOT EXCEPTED FROM THE OBLIGATION TO
BARGAIN BY SECTION 11(B) OF THE ORDER. /7/
UNION PROPOSAL III
ARTICLE 9, SECTION 1.B.
A PROFESSIONAL EMPLOYEE'S EIGHT WORKING HOURS MAY BE SPLIT AND
DIVIDED OVER A 24-HOUR
PERIOD BY MANAGEMENT PROVIDED SUCH SPLITTING AND DIVIDING IS AGREED
TO BY THE EMPLOYEE
AFFECTED; NO SPECIAL COMPENSATION WILL BE GIVEN TO THE EMPLOYEE FOR
SUCH AGREEMENTS. HOWEVER,
A PROFESSIONAL EMPLOYEE WILL NOT BE FORCED AGAINST HIS WILL BY
MANAGEMENT TO ACCEPT SUCH A
SPLIT AND DIVIDED WORK DAY WITHOUT SPECIAL COMPENSATION; WORK
PERFORMED ON AN INVOLUNTARY
SPLIT OR DIVIDED WORK SHIFT WILL BE NEGOTIATED BY MANAGEMENT, THE
UNION, AND AFFECTED
EMPLOYEE.
AGENCY DETERMINATION
THE AGENCY DETERMINED THAT THE PORTION OF THE PROPOSAL IN DISPUTE
CONCERNS JOB CONTENT OR TASKS TO BE ASSIGNED TO EMPLOYEES AND, THUS, IS
EXCEPTED FROM THE OBLIGATION TO BARGAIN BY SECTION 11(B) OF THE ORDER.
QUESTION HERE BEFORE THE COUNCIL
THE QUESTION IS WHETHER THE DISPUTED PORTION OF THE PROPOSAL IS
EXCEPTED FROM THE OBLIGATION TO BARGAIN BY SECTION 11(B) OF THE ORDER.
OPINION
CONCLUSION: THE DISPUTED PORTION OF THE PROPOSAL CONCERNS THE JOB
CONTENT OF UNIT EMPLOYEES AND THEREFORE IS EXCEPTED FROM THE OBLIGATION
TO NEGOTIATE BY SECTION 11(B) OF THE ORDER. ACCORDINGLY, THE AGENCY
DETERMINATION OF NONNEGOTIABILITY WAS PROPER AND, PURSUANT TO SECTION
2411.28 OF THE COUNCIL'S RULES, IS SUSTAINED.
REASONS: ACCORDING TO THE AGENCY'S UNCONTRADICTED ASSERTION, THE
DISPUTED PORTION OF THE PROPOSAL " . . . REFERS TO NEGOTIATIONS OVER THE
'JOB CONTENT' OR TASKS TO BE ASSIGNED TO EMPLOYEES WORKING AN
INVOLUNTARY SPLIT OR DIVIDED WORK SHIFT, REQUIRING THAT THE SPECIFIC
TASKS BE ARRIVED AT BY DISCUSSIONS BETWEEN THE ACTIVITY, THE UNION AND
THE EMPLOYEE." IN THIS REGARD, THE COUNCIL CONSISTENTLY HAS INDICATED
/8/ THAT, SINCE PROPOSALS CONCERNING "JOB CONTENT" OF UNIT EMPLOYEES
FALL WITHIN THE MEANING OF THE PHRASES AGENCY "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 PROPOSALS ARE EXCEPTED FROM THE AGENCY'S BARGAINING
OBLIGATION UNDER SECTION 11(A). ACCORDINGLY, CONSISTENT WITH
ESTABLISHED PRECEDENT WE FIND THE DISPUTED PORTION OF THE PROPOSAL IS
EXCEPTED FROM THE OBLIGATION TO BARGAIN BY SECTION 11(B) OF THE ORDER
AND IS, THEREFORE, NONNEGOTIABLE.
UNION PROPOSAL IV
ARTICLE 9, SECTION 2.C.
MANAGEMENT RESERVES THE RIGHT TO DECIDE WHETHER OR NOT FULL WORKFORCE
REQUIREMENT IS MET BY
THE QUALIFIED AVAILABLE EMPLOYEES. HOWEVER, IN THE EVENT OF A
DISPUTE AS TO WHETHER FULL
WORKFORCE REQUIREMENTS ARE MET, THE EMPLOYEE AND THE AREA STEWARD MAY
ASK FOR CONSULTATION
WITH THE SUPERVISOR BEFORE A FINAL DECISION IS MADE. IN THE EVENT
THE SUPERVISOR DETERMINES
FULL WORKFORCE REQUIREMENTS ARE NOT MET, HE WILL DIRECT INDIVIDUAL
EMPLOYEES TO WORK AS
REQUIRED.
AGENCY DETERMINATION
THE AGENCY DETERMINED THAT THE PORTION OF THE PROPOSAL IN DISPUTE IS
NONNEGOTIABLE BECAUSE IT VIOLATES THE RIGHTS RESERVED TO MANAGEMENT BY
SECTION 12(B) OF THE ORDER.
QUESTION HERE BEFORE THE COUNCIL
THE QUESTION IS WHETHER THE DISPUTED PORTION OF THE PROPOSAL VIOLATES
SECTION 12(B) OF THE ORDER.
OPINION
CONCLUSION: THE DISPUTED PORTION OF THE PROPOSAL WOULD LIMIT
SUPERVISORY DISCRETION TO DIRECT EMPLOYEES OF THE AGENCY UNDER SECTION
12(B)(1) OF THE ORDER. ACCORDINGLY, THE AGENCY DETERMINATION OF
NONNEGOTIABILITY WAS PROPER AND, PURSUANT TO SECTION 2411.28 OF THE
COUNCIL'S RULES, IS SUSTAINED.
REASONS: SECTION 12(B)(1) OF THE ORDER PROVIDES THAT MANAGEMENT
RETAINS THE RIGHT TO "DIRECT EMPLOYEES OF THE AGENCY."
THE MANDATORY NATURE OF THE RESERVATION OF 12(B) RIGHTS WAS
UNDERSCORED IN THE VA RESEARCH HOSPITAL CASE /9/ WHERE, IN INTERPRETING
AND APPLYING SECTION 12(B)(2), 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.
ALTHOUGH THE DECISION IN THE VA RESEARCH HOSPITAL CASE DEALT ONLY
WITH THE INTERPRETATION AND APPLICATION OF SECTION 12(B)(2), THE
REASONING OF THAT DECISION AS REFLECTED IN THE QUOTED LANGUAGE ABOVE IS
EQUALLY APPLICABLE TO SECTION 12(B)(1).
TURNING TO THE DISPUTED LANGUAGE OF THE PROPOSAL HERE INVOLVED, SUCH
LANGUAGE EXPRESSLY WOULD REQUIRE A SUPERVISOR TO TAKE A PARTICULAR
ACTION IF THE SUPERVISOR HAS DETERMINED THAT FULL WORKFORCE REQUIREMENTS
ARE NOT MET. THAT IS, ONCE THE SUPERVISOR DETERMINES THAT FULL
WORKFORCE REQUIREMENTS ARE NOT MET, HE HAS NO DISCRETION TO ACT OTHER
THAN "TO DIRECT INDIVIDUAL EMPLOYEES TO WORK AS REQUIRED." THUS, THE
SUPERVISOR WOULD, FOR EXAMPLE, BE BARRED FROM TAKING ALTERNATIVE ACTION
TO THE ONE SPECIFIED; FROM DECIDING NOT TO TAKE ANY ACTION; OR FROM
CHANGING A DECISION, ONCE MADE, WHETHER OR NOT TO TAKE SUCH ACTION.
/10/ ACCORDINGLY, SINCE THE DISPUTED PORTION OF THE PROPOSAL WOULD
INTERFERE WITH MANAGEMENT'S RESERVED AUTHORITY TO DIRECT EMPLOYEES UNDER
SECTION 12(B)(1) OF THE ORDER, IT IS NONNEGOTIABLE.
UNION PROPOSAL V
ARTICLE 12, SECTION 1.A AND B.
ALL TRAVEL SHALL BE AS PRESCRIBED BY DOD JOINT TRAVEL REGULATIONS.
THE EMPLOYER AGREES TO
THE FOLLOWING:
A. TRAVEL SHALL BE SCHEDULED DURING NORMAL WORK DAYS.
B. IF TRAVEL IS REQUIRED ON NON-WORKDAYS, COMPENSATORY TIME SHALL BE
GRANTED TO THE
EMPLOYEE.
AGENCY DETERMINATION
THE AGENCY DETERMINED THAT THE PROPOSAL IS NONNEGOTIABLE BECAUSE IT
VIOLATES 5 U.S.C. 5542(B).
QUESTION HERE BEFORE THE COUNCIL
THE QUESTION IS WHETHER THE PROPOSAL VIOLATES 5 U.S.C. 5542(B).
OPINION
CONCLUSION: THE PROPOSAL VIOLATES 5 U.S.C. 5542(B). ACCORDINGLY,
THE AGENCY DETERMINATION OF NONNEGOTIABILITY WAS PROPER AND, PURSUANT TO
SECTION 2411.28 OF THE COUNCIL'S RULES, IS SUSTAINED.
REASONS: THE UNION'S PROPOSAL, AS HERE RELEVANT, REQUIRES THAT
COMPENSATORY TIME OFF BE GRANTED TO EMPLOYEES REQUIRED TO TRAVEL ON
NON-WORKDAYS. WITH REGARD TO THE QUESTION OF WHETHER TIME SPENT IN A
TRAVEL STATUS IS CONSIDERED HOURS OF WORK FOR THE PURPOSE OF CALCULATING
AN EMPLOYEE'S OVERTIME ENTITLEMENT 5 U.S.C. 5542 PROVIDES, IN PERTINENT
PART:
SEC. 5542. OVERTIME RATES; COMPUTATION
. . . .
(B) FOR THE PURPOSES OF THIS SUBCHAPTER
. . . .
(2) TIME SPENT IN A TRAVEL STATUS AWAY FROM THE OFFICIAL DUTY STATION
OF AN EMPLOYEE IS NOT
HOURS OF EMPLOYMENT UNLESS--
(B) THE TRAVEL (I) INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING
(II) IS INCIDENT TO
TRAVEL THAT INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING, (III)
IS CARRIED OUT UNDER
ARDUOUS CONDITIONS, OR (IV) RESULTS FROM AN EVENT WHICH COULD NOT BE
SCHEDULED OR CONTROLLED
ADMINISTRATIVELY.
THE SAME REQUIREMENTS APPLY IN CALCULATING AN EMPLOYEE'S COMPENSATORY
TIME OFF ENTITLEMENT UNDER SECTION 5 U.S.C. 5543. /11/ THE UNION'S
PROPOSAL HOWEVER, CONTAINS NO REFERENCE TO ANY OF THE FOUR REQUIREMENTS
SET OUT IN THE STATUTE WHICH MUST BE MET BEFORE TIME SPENT IN A TRAVEL
STATUS IS CONSIDERED HOURS OF WORK. FURTHER, THE UNION MAKES NO
ALLUSION TO SUCH REQUIREMENTS IN ITS PETITION FOR REVIEW. THUS, SINCE
THE UNION'S PROPOSAL WOULD MANDATE THE GRANTING OF COMPENSATORY TIME OFF
TO EMPLOYEES REQUIRED TO TRAVEL ON NON-WORK DAYS WITHOUT REGARD TO THE
APPLICABLE STATUTORY REQUIREMENTS NOTED ABOVE, THE PROPOSAL CLEARLY IS
INCONSISTENT WITH 5 U.S.C. 5542 AND HENCE, NONNEGOTIABLE.
UNION PROPOSAL VI
ARTICLE 13, SECTION 10.
THE EMPLOYER WILL PROVIDE REASONABLE SECURITY FOR THE PROTECTION OF
THE PROFESSIONAL
EMPLOYEE BOOKS, TOOLS, EQUIPMENT AND SUPPLIES WITHOUT REGARD TO
PRIVATE OR GOVERNMENT
OWNERSHIP.
AGENCY DETERMINATION
THE AGENCY DETERMINED THAT THE PROPOSAL CONCERNS THE AGENCY'S
INTERNAL SECURITY PRACTICES, THE TECHNOLOGY OF PERFORMING ITS WORK, AND
ITS STAFFING PATTERNS AND, THUS, IS EXCEPTED FROM THE OBLIGATION TO
BARGAIN BY SECTION 11(B) OF THE ORDER.
QUESTION HERE BEFORE THE COUNCIL
THE QUESTION IS WHETHER THE PROPOSAL IS EXCEPTED FROM THE OBLIGATION
TO BARGAIN BY SECTION 11(B) OF THE ORDER BECAUSE IT CONCERNS MATTERS
WITH RESPECT TO THE AGENCY'S INTERNAL SECURITY PRACTICES.
OPINION
CONCLUSION: THE PROPOSAL CONCERNS MATTERS WITH RESPECT TO THE
INTERNAL SECURITY PRACTICES OF THE AGENCY AND THUS, IS EXCEPTED FROM THE
AGENCY'S OBLIGATION TO NEGOTIATE UNDER SECTION 11(B) OF THE ORDER.
ACCORDINGLY, THE AGENCY'S DETERMINATION THAT THE PROPOSAL IS
NONNEGOTIABLE WAS PROPER AND, PURSUANT TO SECTION 2411.28 OF THE
COUNCIL'S RULES, IS SUSTAINED. /12/
REASONS: SECTION 11(B) OF THE ORDER PROVIDES IN RELEVANT PART THAT
"THE OBLIGATION TO MEET AND CONFER DOES NOT INCLUDE MATTERS WITH RESPECT
TO . . . INTERNAL SECURITY PRACTICES."
THE COUNCIL INTERPRETED AND APPLIED THE PHRASE "INTERNAL SECURITY
PRACTICES" IN ITS DECISION IN THE ARMY AIR FORCE EXCHANGE SERVICE CASE.
/13/ IN THAT DECISION THE COUNCIL STATED, IN PERTINENT PART:
. . . AS USED IN THE ORDER . . . THE TERM "SECURITY" PRACTICES
INCLUDES, INTER ALIA, THOSE
POLICIES, PROCEDURES AND ACTIONS THAT ARE ESTABLISHED AND UNDERTAKEN
TO DEFEND, PROTECT, MAKE
SAFE OR SECURE (I.E., TO RENDER RELATIVELY LESS SUBJECT TO DANGER,
RISK OR APPREHENSION) THE
PROPERTY OF AN ORGANIZATION.
CLEARLY, THE SPECIFIC NATURE OF THE "INTERNAL SECURITY" PRACTICES
WHICH WOULD BEST
ACCOMPLISH THESE OBJECTIVES FOR A PARTICULAR ORGANIZATION GENERALLY
WILL DEPEND UPON THE
FUNCTIONS OF THAT ORGANIZATION AND ITS DERIVATIVE GOALS, ACTIVITIES
AND PROCESSES; THE
CHARACTER AND VULNERABILITY OF WHAT IS BEING PROTECTED; AND WHETHER
SECURITY IS SOUGHT AGAINST
A RISK OR DANGER FROM WITHIN OR FROM OUTSIDE THE ORGANIZATION.
HENCE, SUCH PRACTICES MIGHT
INCLUDE ANY OF A WIDE RANGE OF MEASURES INTENDED TO RENDER SECURE THE
PHYSICAL PROPERTY OF AN
ORGANIZATION. AS A CONSEQUENCE OF THE VARIETY OF RISKS WHICH MIGHT
BE INVOLVED, THE SPECIFIC
METHODS EMPLOYED, I.E., THE SECURITY PRACTICES THEMSELVES, WILL OF
NECESSITY DIFFER ACCORDING
TO THE PARTICULAR CIRCUMSTANCES. THUS, DEPENDING UPON THE
CIRCUMSTANCES, THEY MAY INVOLVE ONE
OR A COMBINATION OF PRACTICES, FOR EXAMPLE, GUARD FORCES, BARRIERS,
ALARMS AND SPECIAL
LIGHTING. FURTHER, THEY MAY INVOLVE PROCEDURES TO BE FOLLOWED BY
EMPLOYEES, WHICH PROCEDURES
ARE DESIGNED TO ELIMINATE OR MINIMIZE PARTICULAR RISKS TO THE
PROPERTY OF AN ORGANIZATION FROM
SUCH EMPLOYEES.
WHILE THE UNION'S PROPOSAL HERE INVOLVED DOES NOT SPECIFICALLY
MANDATE THE INTERNAL SECURITY METHODS TO BE EMPLOYED BY THE AGENCY, IT
IS CLEAR, HOWEVER, THAT THE PROPOSAL WOULD REQUIRE THE AGENCY TO TAKE
ONE OR A COMBINATION OF POSSIBLE MEASURES DESIGNED TO PROVIDE
"REASONABLE" SECURITY.
THUS, BY ITS EXPRESS TERMS, THE UNION'S PROPOSAL WOULD HAVE A DIRECT
IMPACT ON THE INTERNAL SECURITY PRACTICES OF THE AGENCY AND SINCE SUCH
MATTERS ARE EXCLUDED FROM THE OBLIGATION TO BARGAIN BY SECTION 11(B) OF
THE ORDER, THE PROPOSAL IS NONNEGOTIABLE.
UNION PROPOSAL VII
ARTICLE 15, SECTION 3.
THE EMPLOYER SHALL REVIEW WITH THE UNION ON A QUARTERLY BASIS THE
NAMES OF UNION MEMBERS
WHO HAVE APPLIED AND/OR HAVE BEEN SELECTED FOR TRAINING, THE GENERAL
CONDUCT OF TRAINING FOR
UNION MEMBERS, NUMBER OF EMPLOYEES SELECTED, AND OTHER RELEVANT DATA
OF JOINT INTEREST AND
CONCERN. THOSE MEMBERS WHO ARE DENIED REQUESTED TRAINING SHALL
RECEIVE WRITTEN NOTIFICATION
OF SUCH DENIAL AND THE REASON FOR DENIAL OF REQUESTS OVER THE
SIGNATURE OF THE PERSON OR
PERSONS DENYING THE REQUESTED TRAINING.
AGENCY DETERMINATION
THE AGENCY DETERMINED THAT THE PROPOSAL IS NONNEGOTIABLE TO THE
EXTENT IT IS INTENDED TO BE LIMITED TO UNION MEMBERS SINCE IT WOULD
AMOUNT TO A REQUEST FOR A "MEMBERS ONLY" AGREEMENT IN VIOLATION OF
SECTIONS 10(E) AND 19(B)(1) AND (2) OF THE ORDER.
QUESTION HERE BEFORE THE COUNCIL
THE QUESTION IS WHETHER THE PROPOSAL VIOLATES SECTION 10(E) OF THE
ORDER.
OPINION
CONCLUSION: INSOFAR AS THE APPLICATION OF THE PROPOSAL IS LIMITED ON
THE BASIS OF UNION MEMBERSHIP IT VIOLATES SECTION 10(E) OF THE ORDER.
/14/ ACCORDINGLY, THE AGENCY'S DETERMINATION THAT THE PROPOSAL IS
NONNEGOTIABLE WAS PROPER AND, PURSUANT TO SECTION 2411.28 OF THE
COUNCIL'S RULES, IS SUSTAINED.
REASONS: SECTION 10(E) OF THE ORDER PROVIDES, IN PERTINENT PART:
(E) WHEN A LABOR ORGANIZATION HAS BEEN ACCORDED EXCLUSIVE
RECOGNITION, IT IS THE EXCLUSIVE
REPRESENTATIVE OF ALL EMPLOYEES IN THE UNIT AND . . . IS RESPONSIBLE
FOR REPRESENTING THE
INTERESTS OF ALL EMPLOYEES IN THE UNIT WITHOUT DISCRIMINATION AND
WITHOUT REGARD TO LABOR
ORGANIZATION MEMBERSHIP.
WHILE THE UNION ARGUES THAT THE PROPOSAL IS MERELY INTENDED TO ASSIST
THE UNION IN POLICING THE NONDISCRIMINATION GUARANTEES OF THE ORDER AND
THE CONTRACT WITH REGARD TO PARTICIPATION IN A LABOR ORGANIZATION, THE
EXPRESS LANGUAGE OF THE PROPOSAL REQUIRES THE AGENCY TO REVIEW THE NAMES
OF UNION MEMBERS WHO HAVE APPLIED FOR TRAINING AND THE GENERAL CONDUCT
OF TRAINING FOR UNION MEMBERS. FURTHER, THE PROPOSAL REQUIRES THAT
WRITTEN JUSTIFICATION FOR DENIALS OF TRAINING REQUESTS BE FURNISHED TO
MEMBERS. THUS, SINCE THE EXPRESS LANGUAGE OF THE PROPOSAL CONTRAVENES
THE MANDATE OF SECTION 10(E) OF THE ORDER THAT AN EXCLUSIVE
REPRESENTATIVE REPRESENT THE INTERESTS OF ALL EMPLOYEES IN THE UNIT
WITHOUT REGARD TO UNION MEMBERSHIP THE PROPOSAL IS NONNEGOTIABLE.
UNION PROPOSAL VIII
ARTICLE 15, SECTION 4.
THE EMPLOYER SHALL ENCOURAGE AND SUPPORT TO THE EXTENT POSSIBLE UNDER
APPLICABLE
REGULATIONS, BUDGETARY LIMITATIONS, AND MISSION ACCOMPLISHMENT
FACTORS, UNION MEMBER'S
APPLICATION FOR TRAINING RELEVANT TO DEVELOPMENT AND/OR ADVANCEMENT.
THE EMPLOYER WILL
PROVIDE THE UNION WITH A REPORT OF TRAINING EXPENDITURES FOR THE MOST
RECENT FISCAL YEAR AND A
BUDGET FOR THE FORTHCOMING YEAR. THE THE EXTENT POSSIBLE, THE
EMPLOYER WILL MAINTAIN THE
FUTURE TRAINING EXPENDITURE LEVEL AT NO LESS THAN THAT OF THE
PREVIOUS FISCAL YEAR. ON AN
ANNUAL BASIS THE UNION WILL BE ALLOWED TO BARGAIN FOR THE NUMBER OF
WORKING HOURS AND THE
AMOUNT OF FEDERAL MONEY TO BE ALLOCATED TO THE UNION FOR TRAINING.
AGENCY DETERMINATION
THE AGENCY DETERMINED THAT SINCE THE FIRST SENTENCE OF THE PROPOSAL
CONCERNS ONLY UNION MEMBERS, IT VIOLATES SECTION 10(E) OF THE ORDER AND
IS NONNEGOTIABLE. THE AGENCY FURTHER DETERMINED THAT SINCE THE THIRD
AND LAST SENTENCES OF THE PROPOSAL CONCERN THE AGENCY'S BUDGET THEY ARE
EXCLUDED FROM THE OBLIGATION TO BARGAIN BY SECTION 11(B) OF THE ORDER
AND ARE THUS, ALSO NONNEGOTIABLE.
QUESTIONS HERE BEFORE THE COUNCIL
I. WHETHER THE FIRST SENTENCE OF THE PROPOSAL VIOLATES SECTION 10(E)
OF THE ORDER.
II. WHETHER THE THIRD AND LAST SENTENCES OF THE PROPOSAL ARE
EXCEPTED FROM THE AGENCY'S OBLIGATION TO BARGAIN BY SECTION 11(B) OF THE
ORDER OR ARE OUTSIDE THE MANDATORY SCOPE OF BARGAINING UNDER SECTION
11(A) OF THE ORDER.
OPINION
A. CONCLUSION AS TO QUESTION I: THE FIRST SENTENCE OF THE PROPOSAL
VIOLATES SECTION 10(E) OF THE ORDER SINCE ITS APPLICATION IS LIMITED ON
THE BASIS OF UNION MEMBERSHIP. /15/ ACCORDINGLY, THE AGENCY'S
DETERMINATION THAT THE FIRST SENTENCE OF THE PROPOSAL IS NONNEGOTIABLE
WAS PROPER AND, PURSUANT TO SECTION 2411.28 OF THE COUNCIL'S RULES, IS
SUSTAINED.
REASONS: SECTION 10(E) OF THE ORDER, AS PREVIOUSLY SET OUT WITH
REGARD TO PROPOSAL VII, MANDATES THAT THE EXCLUSIVE REPRESENTATIVE OF
EMPLOYEES IN A BARGAINING UNIT REPRESENT THE INTERESTS OF ALL EMPLOYEES
AND NOT JUST UNION MEMBERS. THE FIRST SENTENCE OF THE UNION'S PROPOSAL
HOWEVER, WOULD REQUIRE THE AGENCY TO ENCOURAGE AND SUPPORT TRAINING ONLY
FOR EMPLOYEES WHO ARE UNION MEMBERS. THUS, FOR THE REASONS MORE FULLY
SET FORTH WITH REGARD TO PROPOSAL VII THE FIRST SENTENCE OF THE PROPOSAL
CLEARLY CONFLICTS WITH THE MANDATE OF SECTION 10(E) AND, HENCE, IS
NONNEGOTIABLE.
B. CONCLUSION AS TO QUESTION II: THE THIRD AND LAST SENTENCES OF
THE PROPOSAL CONCERN MATTERS WITH RESPECT TO THE AGENCY'S BUDGET, AND
THUS ARE EXCEPTED FROM THE AGENCY'S OBLIGATION TO BARGAIN BY SECTION
11(B) OF THE ORDER. /16/ ACCORDINGLY, THE AGENCY'S DETERMINATION TO
THAT EFFECT WAS PROPER AND, PURSUANT TO SECTION 2411.28 OF THE COUNCIL'S
RULES, IS SUSTAINED.
REASONS: SECTION 11(B) PROVIDES IN RELEVANT PART THAT "THE
OBLIGATION TO MEET AND CONFER DOES NOT INCLUDE MATTERS WITH RESPECT TO .
. . (THE AGENCY'S) BUDGET." THE MEANING OF "BUDGET" IS NOT DEFINED IN
THE ORDER. THUS, CONSISTENT WITH THE GENERAL RULES OF STATUTORY
CONSTRUCTION, /17/ WORDS IN THE ORDER ARE GIVEN THEIR COMMON MEANING IN
THE ABSENCE OF A "LEGISLATIVE INTENT" TO THE CONTRARY. /18/
NO INTENT IS EVIDENT IN THE ORDER, OR IN THE VARIOUS REPORTS AND
RECOMMENDATIONS WHICH ACCOMPANIED THE ORDER AND ITS SUBSEQUENT
AMENDMENTS, THAT THE WORD "BUDGET" IS TO BE ACCORDED ANY MEANING OTHER
THAN THE COMMON MEANING ASCRIBED TO IT. THE COMMON MEANING OF WORD AS
INDICATED BY THE DICTIONARY DEFINITION IS AS FOLLOWS: /19/ "BUDGET"
DENOTES A STATEMENT OF THE FINANCIAL POSITION OF A BODY FOR A DEFINITE
PERIOD OF TIME BASED ON DETAILED ESTIMATES OF PLANNED OR EXPECTED
EXPENDITURES DURING THAT PERIOD AND PROPOSALS FOR FINANCING THEM.
HENCE, AS USED IN THE ORDER WITH RESPECT TO AN AGENCY AND ITS
SUBORDINATE ORGANIZATIONS, THE TERM "BUDGET" INCLUDES, INTER ALIA, THE
DETERMINATION OF WHAT ITEMS WILL BE INCLUDED IN THE ESTIMATE OF PLANNED
OR EXPECTED EXPENDITURES FOR A PARTICULAR PERIOD OF TIME AND FURTHER,
THE DETERMINATION OF THE MONETARY AMOUNT OF EACH OF THE ITEMS SO
INCLUDED.
TURNING TO THE PRESENT CASE, THE THIRD AND LAST SENTENCES OF THE
UNION'S PROPOSAL, BY THEIR EXPRESS LANGUAGE, CONCERN THE MONETARY AMOUNT
OF A PARTICULAR ITEM IN THE BUDGET, I.E., THE AGENCY'S TRAINING
EXPENDITURE FOR A FUTURE FISCAL YEAR AND THE AMOUNT OF MONEY TO BE
ALLOCATED TO THE UNION FOR TRAINING. ACCORDINGLY, SINCE THESE TWO
SENTENCES DIRECTLY CONCERN THE BUDGET OF THE AGENCY, HERE THE TRAINING
BUDGET, WE FIND THAT THESE TWO SENTENCES ARE EXCEPTED FROM THE
OBLIGATION TO BARGAIN BY SECTION 11(B) OF THE ORDER.
UNION PROPOSALS IX, X /20/
PROPOSAL IX, ARTICLE 16, SECTION 1.J.
THE EMPLOYER AGREES TO ROTATE ACTING SUPERVISOR DETAILS AND TEMPORARY
ASSIGNMENTS AMONG THE
HIGHEST LEVEL PROFESSIONAL NON-SUPERVISORY PERSONNEL IN THE OFFICE OR
SHOP ORGANIZATION. AS
NEAR AS PRACTICABLE, EACH HIGHEST LEVEL PROFESSIONAL NON-SUPERVISORY
EMPLOYEE IN THE OFFICE OR
SHOP ORGANIZATION WILL BE THE ACTING SUPERVISOR FOR THE SAME NUMBER
OF WORKDAYS PER YEAR.
PROPOSAL X, ARTICLE 16, SECTION 1.K.
AT NO TIME WILL A LOWER LEVEL PROFESSIONAL EMPLOYEE BE THE ACTING
SUPERVISOR OVER A SENIOR
(OR HIGHER) GRADE PROFESSIONAL. AT NO TIME WILL A NON-PROFESSIONAL
NON-SUPERVISORY EMPLOYEE
BE THE ACTING SUPERVISORY OVER A PROFESSIONAL EMPLOYEE.
AGENCY DETERMINATION
THE AGENCY DETERMINED, INTER ALIA, THAT PROPOSAL IX CONCERNS THE
FILLING OF SUPERVISORY POSITIONS AND IS, THEREFORE, OUTSIDE THE
OBLIGATION TO BARGAIN UNDER SECTION 11(A) OF THE ORDER AND THAT PROPOSAL
X IS NONNEGOTIABLE BECAUSE IT INFRINGES ON MANAGEMENT'S RESERVED RIGHT
TO ASSIGN EMPLOYEES UNDER SECTION 12(B)(2) OF THE ORDER.
QUESTION HERE BEFORE THE COUNCIL
THE QUESTION IS WHETHER THE PROPOSALS ARE OUTSIDE THE SCOPE OF
MANDATORY BARGAINING UNDER SECTION 11(A) OF THE ORDER.
OPINION
CONCLUSION: THE PROPOSALS CONCERN THE FILLING OF SUPERVISORY
POSITIONS OUTSIDE THE BARGAINING UNIT AND, THUS, ARE OUTSIDE THE
BARGAINING OBLIGATION ESTABLISHED BY SECTION 11(A) OF THE ORDER. /21/
ACCORDINGLY, THE AGENCY'S DETERMINATIONS THAT THE PROPOSALS ARE
NONNEGOTIABLE WERE PROPER AND, PURSUANT TO SECTION 2411.28 OF THE
COUNCIL'S RULES, ARE SUSTAINED.
REASONS: THE UNION'S PROPOSALS CONCERN THE PROCEDURES TO BE USED BY
THE AGENCY IN TEMPORARILY ASSIGNING OR DETAILING UNIT EMPLOYEES TO
SUPERVISORY POSITIONS OUTSIDE THE BARGAINING UNIT. IN THIS REGARD, THE
COUNCIL HAS DETERMINED THAT PROPOSALS CONCERNING THE FILLING OF
SUPERVISORY POSITIONS OUTSIDE THE BARGAINING UNIT ARE OUTSIDE THE
OBLIGATION TO BARGAIN UNDER SECTION 11(A) OF THE ORDER. /22/ WHILE THE
PROPOSALS HERE INVOLVED CONCERN ONLY THE TEMPORARY FILLING OF SUCH
SUPERVISORY POSITIONS, THE INTENDED DURATION OF THE PERSONNEL ACTION
CONTEMPLATED IS WITHOUT CONTROLLING SIGNIFICANCE. THE ESSENTIAL FACT IS
THAT SUCH SUPERVISORY POSITIONS ARE OUTSIDE THE BARGAINING UNIT. THUS,
THE UNION'S PROPOSALS WHICH ARE CONCERNED SOLELY WITH PROCEDURES FOR
FILLING NONBARGAINING UNIT POSITIONS, CLEARLY DO NOT RELATE TO PERSONNEL
POLICIES AND PRACTICES AFFECTING THE BARGAINING UNIT WHICH ARE
ENCOMPASSED WITHIN THE BARGAINING OBLIGATION UNDER SECTION 11(A).
ACCORDINGLY, CONSISTENT WITH ESTABLISHED PRECEDENT, THE UNION'S
PROPOSALS HERE INVOLVED ARE OUTSIDE THE OBLIGATION TO BARGAIN UNDER
SECTION 11(A) AND ARE NONNEGOTIABLE.
UNION PROPOSAL XI
ARTICLE 16, SECTION J.
THE EMPLOYER AGREES TO THE MAXIMUM EXTENT CONSISTENT WITH WORK
REQUIREMENTS TO ASSIGN
EMPLOYEES WORK APPROPRIATE TO THEIR CLASSIFICATION.
AGENCY DETERMINATION
THE AGENCY DETERMINED, IN PART, THAT THE UNION'S PROPOSAL IS
NONNEGOTIABLE BECAUSE IT CONCERNS JOB CONTENT AND THUS IS EXCEPTED FROM
THE OBLIGATION TO BARGAIN BY SECTION 11(B) OF THE ORDER.
QUESTION HERE BEFORE THE COUNCIL
THE QUESTION IS WHETHER THE PROPOSAL IS EXCEPTED FROM THE OBLIGATION
TO BARGAIN BY SECTION 11(B) OF THE ORDER.
OPINION
CONCLUSION: THE PROPOSAL CONCERNS THE JOB CONTENT OF UNIT EMPLOYEES
AND THEREFORE IS EXCEPTED FROM THE OBLIGATION TO BARGAIN BY SECTION
11(B) OF THE ORDER. /23/ ACCORDINGLY, THE AGENCY DETERMINATION OF
NONNEGOTIABILITY WAS PROPER AND, PURSUANT TO SECTION 2411.28 OF THE
COUNCIL'S RULES, IS SUSTAINED.
REASONS: THE UNION'S PROPOSAL HERE IN DISPUTE WOULD REQUIRE THE
AGENCY TO ASSIGN TO UNIT EMPLOYEES WORK APPROPRIATE TO THEIR
CLASSIFICATION. IN THIS REGARD, THE PROPOSAL HERE INVOLVED BEARS NO
MATERIAL DIFFERENCE FROM THE UNION'S PROPOSAL CONDITIONING THE
ASSIGNMENT OF DUTIES TO EMPLOYEES ON THE "'SCOPE OF THE CLASSIFICATION
ASSIGNED' TO THE RESPECTIVE UNIT EMPLOYEES AS DEFINED IN 'APPROPRIATE
CLASSIFICATION STANDARDS,'" WHICH WAS BEFORE THE COUNCIL AND HELD TO BE
EXCEPTED FROM THE OBLIGATION TO NEGOTIATE BY SECTION 11(B) IN THE
WRIGHT-PATTERSON DECISION. /24/ THEREFORE, FOR THE REASONS MORE FULLY
EXPLICATED IN THE WRIGHT-PATTERSON DECISION, THE PROPOSAL HERE IN
DISPUTE MUST ALSO BE HELD TO BE EXCEPTED FROM THE OBLIGATION TO BARGAIN
BY SECTION 11(B) OF THE ORDER.
UNION PROPOSAL XII
ARTICLE 16, SECTION 3.
MANPOWER SURVEY. THE UNION SHALL PARTICIPATE AND HAVE AN INPUT ON
ALL MANPOWER SURVEYS AT
CCAD IF PROFESSIONAL EMPLOYEES OR POSITIONS ARE AFFECTED, OR UNDER
STUDY. BEFORE SUCH A STUDY
BEGINS THE UNION SHALL MEET WITH THE MANPOWER STUDY TEAM TO DETERMINE
THE EXTENT OF
PARTICIPATION DESIRED BY THE UNION.
AGENCY DETERMINATION
THE AGENCY DETERMINED THAT THE UNION'S PROPOSAL IS NONNEGOTIABLE
BECAUSE IT CONCERNS MATTERS OUTSIDE THE OBLIGATION TO BARGAIN UNDER
SECTION 11(A) OF THE ORDER.
QUESTION HERE BEFORE THE COUNCIL
THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS OUTSIDE THE AGENCY'S
OBLIGATION TO BARGAIN UNDER SECTION 11(A) OF THE ORDER.
OPINION
CONCLUSION: THE PROPOSAL DOES NOT DIRECTLY RELATE TO PERSONNEL
POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS AND,
THEREFORE, IS OUTSIDE THE AGENCY'S OBLIGATION TO BARGAIN UNDER SECTION
11(A) OF THE ORDER. ACCORDINGLY, THE AGENCY DETERMINATION OF
NONNEGOTIABILITY WAS PROPER AND, PURSUANT TO SECTION 2411.28 OF THE
COUNCIL'S RULES, IS SUSTAINED.
REASONS: SECTION 11(A) OF THE ORDER /25/ ESTABLISHES, WITHIN
SPECIFIED LIMITS NOT HERE IN DISPUTE, AN OBLIGATION TO BARGAIN
CONCERNING PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING
WORKING CONDITIONS OF BARGAINING UNIT EMPLOYEES. THE MANPOWER SURVEYS
TO WHICH THE DISPUTED PROPOSAL RELATES ARE CHARACTERIZED IN THE RECORD
AS BEING INITIATED AND CONDUCTED BY THE ARMY MATERIEL DEVELOPMENT AND
READINESS COMMAND, THE ACTIVITY'S PARENT COMMAND IN THE ORGANIZATIONAL
HIERARCHY. FURTHER, SUCH MANPOWER SURVEYS ARE CONDUCTED BY THE PARENT
COMMAND'S OWN PERSONNEL AND FOR THE PURPOSE OF ENABLING THE PARENT
COMMAND TO MEASURE THE EFFECTIVENESS OF MANPOWER UTILIZATION BY VARIOUS
ACTIVITIES WITHIN THE COMMAND, OR IN THE COMMAND AS A WHOLE.
THE PROPOSAL IN DISPUTE, BY ITS EXPRESS TERMS AND AS EXPLAINED BY THE
UNION IN THE RECORD BEFORE THE COUNCIL, IS CONCERNED WITH SECURING
REPRESENTATION FOR THE UNION ON SUCH MANPOWER SURVEY TEAMS.
IN OUR OPINION, THE PROPOSAL IN DISPUTE IS OUTSIDE THE AGENCY'S
OBLIGATION TO BARGAIN BECAUSE IT DOES NOT DIRECTLY RELATE TO PERSONNEL
POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS WITHIN
THE MEANING OF SECTION 11(A) OF THE ORDER. CLEARLY, UNION
REPRESENTATION ON SUCH MANPOWER SURVEY TEAMS DOES NOT, OF ITSELF,
INVOLVE SUCH PERSONNEL POLICIES OR PRACTICES OR MATTERS AFFECTING
WORKING CONDITIONS OF BARGAINING UNIT EMPLOYEES. /26/ FURTHERMORE,
WHILE THE RECOMMENDATIONS OF A MANPOWER SURVEY MAY ULTIMATELY AFFECT
BARGAINING UNIT EMPLOYEES, NEITHER THE METHOD EMPLOYED BY THE SURVEY
TEAM IN CONDUCTING THE SURVEY, INCLUDING TEAM MEMBERSHIP, NOR THE
PREPARATION OF THE SURVEY RESULTS AND RECOMMENDATIONS THEMSELVES INVOLVE
SUCH PERSONNEL POLICIES AND PRACTICES, OR MATTERS AFFECTING WORKING
CONDITIONS. ACCORDINGLY, SINCE THE UNION'S PROPOSAL FALLS OUTSIDE THE
SCOPE OF REQUIRED BARGAINING UNDER SECTION 11(A) OF THE ORDER, WE MUST
HOLD THAT THE PROPOSAL IS NOT ONE ON WHICH THE AGENCY IS OBLIGATED TO
NEGOTIATE. /27
UNION PROPOSAL XIII
ARTICLE 21, SECTION 5.
PROFESSIONAL EMPLOYEES WORKING IN THE ENGINEERING AND SCIENTIFIC
FIELDS WILL BE PERMITTED
TO HAVE CONTRACTORS COME TO CCAD TO DEMONSTRATE NEW INDUSTRIAL
METHODS, PRODUCTS, EQUIPMENT,
ETC., AT NO COST TO THE GOVERNMENT, WITHOUT APPROVAL OF THE
PURCHASING AND CONTRACTING
DIVISION OR ANY OTHER ELEMENT OF CCAD. HOWEVER, THE PURCHASING AND
CONTRACTING DIVISION WILL
BE NOTIFIED OF SUCH VISITS.
AGENCY DETERMINATION
THE AGENCY DETERMINED, IN ESSENCE, THAT THE PROPOSAL DOES NOT CONCERN
A MATTER WITHIN THE OBLIGATION TO BARGAIN UNDER THE ORDER.
QUESTION HERE BEFORE THE COUNCIL
THE QUESTION IS WHETHER THE PROPOSAL IS EXCEPTED FROM THE OBLIGATION
TO BARGAIN BY SECTION 11(B) OF THE ORDER.
OPINION
CONCLUSION: THE PROPOSAL CONCERNS THE TECHNOLOGY OF PERFORMING WORK
AND, THEREFORE, IS EXCEPTED FROM THE OBLIGATION TO BARGAIN BY SECTION
11(B) OF THE ORDER. /28/ ACCORDINGLY, THE AGENCY DETERMINATION OF
NONNEGOTIABILITY WAS PROPER AND, PURSUANT TO SECTION 2411.28 OF THE
COUNCIL'S RULES, IS SUSTAINED.
REASONS: SECTION 11(B) PROVIDES IN RELEVANT PART THAT "THE
OBLIGATION TO MEET AND CONFER DOES NOT INCLUDE MATTERS WITH RESPECT TO .
. . THE TECHNOLOGY OF PERFORMING (THE AGENCY'S) WORK." IN THIS REGARD,
THE COUNCIL HAS INDICATED THAT PROPOSALS CONCERNING THE PARTICULAR
EQUIPMENT TO BE UTILIZED BY AN AGENCY ARE EXCEPTED FROM THE OBLIGATION
TO BARGAIN BY SECTION 11(B) BECAUSE THEY RELATE TO THE TECHNOLOGY OF
PERFORMING WORK. /29/ HOWEVER, THE RIGHT TO DETERMINE THE TECHNOLOGY OF
PERFORMING WORK IS NOT LIMITED TO THE CURRENT METHODS OR EQUIPMENT TO BE
UTILIZED BUT LOGICALLY EXTENDS TO THE CHOICE OF WHAT NEW METHOD OR
EQUIPMENT WILL BE UTILIZED IN THE FUTURE. IMPLICIT AND COEXTENSIVE WITH
THE ACTUAL CHOICE OF TECHNOLOGY TO BE ADOPTED FOR FUTURE USE ARE THE
DECISIONS AS TO WHEN AND HOW POTENTIAL CHOICES WILL BE SELECTED FOR
EVALUATION AND, FURTHER, HOW SUCH EVALUATIONS WILL BE CONDUCTED.
THE UNION'S PROPOSAL HERE INVOLVED, BY ITS EXPRESS TERMS, WOULD
REQUIRE MANAGEMENT TO BARGAIN OVER WHETHER UNIT EMPLOYEES WILL MAKE SUCH
DETERMINATION AS TO WHEN AND HOW NEW INDUSTRIAL METHODS AND EQUIPMENT
WILL BE EVALUATED FOR POSSIBLE FUTURE APPLICATION BY THE AGENCY. THUS,
SINCE THIS PROPOSAL REQUIRES BARGAINING OVER WHETHER UNIT EMPLOYEES WILL
BE DIRECTLY INVOLVED IN THE ASSESSMENT OF THE TECHNOLOGY OF AGENCY
OPERATIONS, IT IS EXCEPTED FROM THE AGENCY'S OBLIGATION TO BARGAIN BY
SECTION 11(B) AND, HENCE, IN THE CIRCUMSTANCES OF THIS CASE IS
NONNEGOTIABLE.
UNION PROPOSAL XIV
ARTICLE 21, SECTION 8.
THE POLICY OF MANAGEMENT WILL BE TO ENCOURAGE EXPERIMENTATION BY
PROFESSIONAL EMPLOYEES
PROVIDED THE FOLLOWING CRITERIA EXIST:
A. THERE IS NO SIGNIFICANT COST TO THE GOVERNMENT OR THE COST IS
PROPERLY FUNDED.
B. THE EXPERIMENTATION HAS THE POTENTIAL OF PRODUCING A COST SAVINGS
FOR CCAD.
AGENCY DETERMINATION
THE AGENCY DETERMINED THAT THE PROPOSAL CONCERNS THE JOB CONTENT OF
UNIT EMPLOYEES, A MATTER WHICH IS EXCEPTED FROM THE OBLIGATION TO
BARGAIN BY SECTION 11(B) OF THE ORDER.
QUESTION HERE BEFORE THE COUNCIL
THE QUESTION IS WHETHER THE PROPOSAL IS EXCEPTED FROM THE OBLIGATION
TO BARGAIN BY SECTION 11(B) OF THE ORDER.
OPINION
CONCLUSION: THE PROPOSAL CONCERNS A MATTER WITH RESPECT TO THE JOB
CONTENT OF UNIT EMPLOYEES AND, THEREFORE, IS EXCLUDED FROM THE
OBLIGATION TO BARGAIN BY SECTION 11(B) OF THE ORDER. ACCORDINGLY, THE
AGENCY DETERMINATION OF NONNEGOTIABILITY WAS PROPER AND, PURSUANT TO
SECTION 2411.28 OF THE COUNCIL'S RULES, IS SUSTAINED.
REASONS: UNION PROPOSALS PROSCRIBING /30/ OR CONDITIONING /31/ THE
ASSIGNMENT OF DUTIES TO UNIT EMPLOYEES ARE EXCEPTED FROM THE AGENCY'S
OBLIGATION TO BARGAIN BY SECTION 11(B).
THE AGENCY ASSERTS WITHOUT CONTRADICTION THAT UNIT EMPLOYEES
CURRENTLY PERFORM EXPERIMENTS AS PART OF THEIR REGULAR ASSIGNED DUTIES.
THE UNION'S PROPOSAL, HOWEVER, WOULD CONDITION THE AGENCY'S DISCRETION
WITH RESPECT TO ASSIGNING DUTIES INVOLVING THE PERFORMANCE OF
EXPERIMENTS UPON THE COST AND FUNDING FACTORS SET FORTH IN THE PROPOSAL.
ACCORDINGLY, CONSISTENT WITH ESTABLISHED COUNCIL PRECEDENT AND APART
FROM OTHER CONSIDERATIONS, WE FIND THE UNION'S PROPOSAL CONCERNS A
MATTER WITH RESPECT TO JOB CONTENT AND, HENCE, IS EXCEPTED FROM THE
AGENCY'S OBLIGATION TO BARGAIN BY SECTION 11(B) OF THE ORDER.
UNION PROPOSAL XV
UNNUMBERED ARTICLE.
WHEN AN EMPLOYEE HAS BEEN DEMOTED, HE WILL BE ASSIGNED TO PERFORM THE
DUTIES OF THE LOWER
POSITION EXCEPT WHEN SERVING ON A FORMAL DETAIL ASSIGNMENT.
AGENCY DETERMINATION
THE AGENCY DETERMINED THAT THE UNION'S PROPOSAL IS NONNEGOTIABLE
BECAUSE IT VIOLATES THE AGENCY'S RIGHTS TO ASSIGN EMPLOYEES UNDER
SECTION 12(B)(2) AND TO DETERMINE THE METHODS, MEANS AND PERSONNEL BY
WHICH AGENCY OPERATIONS ARE CONDUCTED UNDER SECTION 12(B)(5); AND IS
EXCEPTED FROM THE OBLIGATION TO BARGAIN BY SECTION 11(B) BECAUSE IT
CONCERNS JOB CONTENT.
QUESTIONS HERE BEFORE THE COUNCIL
THE QUESTIONS ARE WHETHER THE PROPOSAL VIOLATES SECTIONS 12(B)(2) AND
12(B)(5) OR IS EXCEPTED FROM THE OBLIGATION TO BARGAIN BY SECTION 11(B).
OPINION
CONCLUSION: THE UNION'S PROPOSAL DOES NOT VIOLATE THE AGENCY'S 12(B)
RIGHTS AND IS NOT EXCEPTED FROM THE OBLIGATION TO BARGAIN UNDER SECTION
11(B). ACCORDINGLY, THE AGENCY DETERMINATION THAT THE PROPOSAL IS
NONNEGOTIABLE WAS IMPROPER AND, PURSUANT TO SECTION 2411.28 OF THE
COUNCIL'S RULES, IS SET ASIDE. /32/
REASONS: THE AGENCY ASSERTS THAT THE UNION'S PROPOSAL INFRINGES ON
THE RIGHTS RESERVED TO MANAGEMENT BY SECTIONS 12(B)(2) AND (5) OF THE
ORDER AND FURTHER, THAT THE PROPOSAL IS EXCEPTED FORM THE OBLIGATION TO
BARGAIN BY SECTION 11(B) OF THE ORDER. WE DISAGREE.
IN OUR OPINION, THE AGENCY HAS FAILED TO SUPPORT ITS CONTENTIONS. IN
THIS REGARD, THE UNION'S PROPOSAL MERELY PROVIDES THAT WHEN AN EMPLOYEE
IS DEMOTED TO A POSITION, THE EMPLOYEE SO DEMOTED WILL PERFORM THE
DUTIES WHICH COMPRISE OR ARE ASSIGNED TO THAT POSITION UNLESS THE
EMPLOYEE HAS BEEN DETAILED TO A DIFFERENT POSITION. THERE IS NOTHING IN
THE LANGUAGE OF THE PROPOSAL OR IN THE EXPRESSED INTENT OF THE UNION AS
TO THE MEANING OF THAT LANGUAGE WHICH PRECLUDES THE AGENCY FROM
EXERCISING ITS 12(B)(2) RIGHT "TO . . . ASSIGN . . . EMPLOYEES IN
POSITIONS WITHIN THE AGENCY . . ." /33/ OR FROM EXERCISING- ITS SECTION
12(B)(5) RIGHT "TO DETERMINE THE METHODS, MEANS, AND PERSONNEL BY WHICH
(AGENCY) OPERATIONS ARE TO BE CONDUCTED. . . . " NOR DOES THE PROPOSAL
IN ANY RESTRICT THE AGENCY IN DETERMINING WHAT DUTIES WILL COMPRISE A
GIVEN POSITION OR IN CHANGING THE DUTIES ALREADY ASSIGNED TO A
PARTICULAR POSITION. INSTEAD, THE PROPOSAL MERELY REQUIRES THAT AN
EMPLOYEE PERFORM WHATEVER DUTIES MANAGEMENT HAS ASSIGNED TO THE POSITION
THE EMPLOYEE OCCUPIES UNLESS THE EMPLOYEE IS DETAILED TO ANOTHER
POSITION. THUS, IN OUR VIEW, THE PROPOSAL IS NOT RENDERED NONNEGOTIABLE
BY SECTION 12(B) OR 11(B) OF THE ORDER. /34/
UNION PROPOSAL XVI
ARTICLE 22, SECTION 6.
EMPLOYEES NOT PERFORMING THE FULL SCOPE OF THEIR POSITIONS AND WHO
THEREBY LOSE SKILL IN
THE PERFORMANCE OF CERTAIN ASPECTS OF THEIR PROFESSION SHALL BE GIVEN
A REASONABLE AMOUNT OF
TIME AND/OR TRAINING TO BRING THEIR SKILLS AND PERFORMANCE UP TO AN
ACCEPTABLE LEVEL PRIOR TO
THE INITIATION OF ACTIONS TO DEMOTE SUCH EMPLOYEE.
AGENCY DETERMINATION
THE AGENCY DETERMINED THAT THE UNION'S PROPOSAL IS NONNEGOTIABLE
BECAUSE IT WOULD SO DELAY AND IMPEDE MANAGEMENT'S RESERVED RIGHT UNDER
SECTION 12(B)(2) OF THE ORDER TO DEMOTE EMPLOYEES AS TO NEGATE THAT
RIGHT.
QUESTION HERE BEFORE THE COUNCIL
THE QUESTION IS WHETHER THE UNION'S PROPOSAL VIOLATES SECTION
12(B)(2) OF THE ORDER.
OPINION
CONCLUSION: THE PROPOSAL WOULD NEGATE MANAGEMENT'S RIGHT TO DEMOTE
EMPLOYEES UNDER SECTION 12(B)(2) OF THE ORDER. ACCORDINGLY, THE AGENCY
DETERMINATION OF NONNEGOTIABILITY WAS PROPER AND, PURSUANT TO SECTION
2411.28 OF THE COUNCIL'S RULES, IS SUSTAINED.
REASONS: SECTION 12(B)(2) OF THE ORDER RESERVES TO MANAGEMENT THE
RIGHT, AMONG OTHER THINGS, "TO SUSPEND, DEMOTE, (AND) DISCHARGE . . .
EMPLOYEES." IN INTERPRETING AND APPLYING THIS SECTION OF THE ORDER, THE
COUNCIL, IN ITS VA RESEARCH HOSPITAL DECISION, /35/ STATED THAT THE
SECTION 12(B)(2) OF THE ORDER DOES NOT PRECLUDE THE NEGOTIATION OF
PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN REACHING THE DECISION OR
TAKING THE ACTION INVOLVED, AS LONG AS THOSE PROCEDURES DO NOT HAVE THE
EFFECT OF NEGATING MANAGEMENT'S RESERVED AUTHORITY. SUBSEQUENTLY, IN
THE BLAINE DECISION, /36/ THE COUNCIL FOUND A UNION PROPOSAL FOR A
PROMOTION PROCEDURE NONNEGOTIABLE BECAUSE THE PROCEDURE, BY FAILING TO
ESTABLISH ANY "PRECISE AND READILY DEFINABLE LIMITATION" BEFORE THE
PERSONNEL ACTIONS WERE TAKEN BY THE AGENCY, WOULD CREATE THE POTENTIAL
FOR SIGNIFICANT DELAYS IN FILLING VACANCIES. /37/ THE COUNCIL
DETERMINED THAT THESE DELAYS WOULD BE SO UNREASONABLE AS TO NEGATE
MANAGEMENT'S RESERVED AUTHORITY UNDER SECTION 12(B)(2) OF THE ORDER,
THEREBY VIOLATING THAT SECTION OF THE ORDER. MORE RECENTLY, IN ITS
BUREAU OF ALCOHOL, TOBACCO AND FIREARMS DECISION, /38/ THE COUNCIL, IN
APPLYING THE GENERAL PRINCIPLE ESTABLISHED IN VA RESEARCH HOSPITAL,
FOUND NONNEGOTIABLE A UNION PROPOSAL REQUIRING THE STAYING OF EMPLOYEE
SUSPENSIONS PENDING THE OUTCOME OF AN EXPEDITED ARBITRATION PROCEDURE TO
DETERMINE IF THE PROPOSED SUSPENSIONS WERE FOR JUST CAUSE. THE COUNCIL
FOUND THAT THE PROPOSAL DID NOT "PRECISELY DEFINE AND LIMIT THE TIME TO
PROCESS CASES THROUGH ARBITRATION BEFORE MANAGEMENT (COULD) ACT TO
IMPLEMENT ITS DECISION TO TAKE DISCIPLINARY ACTIONS." /39/ THEREFORE,
THE COUNCIL CONCLUDED, THE PROPOSAL WOULD CREATE THE POTENTIAL FOR
DELAYS OF INDEFINITE DURATION BEFORE A DISCIPLINARY DECISION COULD BE
IMPLEMENTED AND WOULD HAVE THE EFFECT OF NEGATING MANAGEMENT'S RESERVED
RIGHT.
TURNING TO THE PROPOSAL HERE INVOLVED, SUCH PROPOSAL, BY ITS EXPRESS
TERMS, WOULD REQUIRE THE AGENCY TO "SUSPEND" INITIATION OF ACTION TO
DEMOTE EMPLOYEES UNTIL SUCH EMPLOYEES WERE GIVEN A "REASONABLE" TIME AND
OR TRAINING TO BRING THEIR SKILL AND PERFORMANCE UP TO ACCEPTABLE
LEVELS. HOWEVER, NOWHERE IN THE PROPOSAL ITSELF OR IN THE EXPRESSED
INTENT OF THE UNION AS TO THE MEANING OF THE PROPOSAL, IS THE TERM
"REASONABLE" DEFINED SO AS TO PLACE A DEFINITE LIMIT ON THE TIME
EMPLOYEES WILL BE GRANTED TO BRING THEIR SKILL AND PERFORMANCE UP TO
ACCEPTABLE LEVELS. UNDER THE PROPOSAL, THEREFORE, THE "REASONABLE" TIME
FOR AN EMPLOYEE TO IMPROVE HIS OR HER SKILL AND PERFORMANCE WOULD DEPEND
ON THE PARTICULAR LEVEL OF SKILL THEN POSSESSED BY THE PARTICULAR
EMPLOYEE INVOLVED AND, THUS, RESULT IN POTENTIAL DELAYS OF INDEFINITE
AND UNCERTAIN DURATION IN THE EXERCISE BY MANAGEMENT OF ITS RIGHT TO
DEMOTE SUCH EMPLOYEES. IN OUR OPINION, SUCH DELAYS OF INDEFINITE AND
UNCERTAIN DURATION IN THE CIRCUMSTANCES OF THIS CASE INTERFERE WITH
MANAGEMENT'S RIGHT TO TAKE PROMPT, TIMELY ACTION IN A MATTER
SPECIFICALLY RESERVED TO IT UNDER THE ORDER, NAMELY, THE RIGHT TO TAKE
PROMPT, TIMELY DEMOTION ACTIONS. /40/ STATED OTHERWISE, THE UNION'S
PROPOSAL HERE WOULD SO DELAY AND IMPEDE THE EXERCISE OF THE RESERVED
RIGHT TO DEMOTE EMPLOYEES AS TO NEGATE THAT RIGHT AND, HENCE, VIOLATES
SECTION 12(B)(2) OF THE ORDER.
UNION PROPOSAL XVII
ARTICLE 24, SECTION 2.
THE EMPLOYER HAS A RESPONSIBILITY TO TREAT ITS PROFESSIONAL EMPLOYEES
AS PROFESSIONAL
INDIVIDUALS. THE EMPLOYER WILL ENSURE THAT PROFESSIONAL EMPLOYEES
RECEIVE APPROPRIATE
RECOGNITION IN THE ORGANIZATIONAL STRUCTURE AND THAT HIS ECONOMIC
REWARDS MUST BE COMPATIBLE
WITH OTHER GROUPS IN OUR SOCIETY.
AGENCY DETERMINATION
THE AGENCY DETERMINED THAT THE UNION'S PROPOSAL IS NONNEGOTIABLE
BECAUSE (1) IT CONCERNS PAY AND FRINGE BENEFITS FOR EMPLOYEES WHICH ARE
MATTERS WHICH ARISE IN STATUTE AND NOT IN THE ORDER; (2) IT CONCERNS AN
EMPLOYEE'S STATUS IN THE ORGANIZATION WHICH IS NOT A PERSONNEL POLICY,
PRACTICE OR MATTER AFFECTING WORKING CONDITIONS; AND (3) IT CONTAINS
TERMS WHICH ARE CONTRARY TO 5 U.S.C. 4503.
QUESTION HERE BEFORE THE COUNCIL
THE QUESTION IS WHETHER THE PROPOSAL IS CONTRARY TO LAW, NAMELY, 5
U.S.C. 4503 WHICH CONCERNS THE GRANTING OF INCENTIVE AWARDS.
OPINION
CONCLUSION: THE PROPOSAL VIOLATES LAW, NAMELY 5 U.S.C. 4503.
ACCORDINGLY, THE AGENCY DETERMINATION OF NONNEGOTIABILITY WAS PROPER
AND, PURSUANT TO SECTION 2411.28 OF THE COUNCIL'S RULES, IS SUSTAINED.
/41/
REASONS: 5 U.S.C. 4503, WHICH CONCERNS THE CRITERIA PURSUANT TO
WHICH INVENTIVE AWARDS MAY BE GRANTED, PROVIDES:
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.
IT IS CLEAR THAT THIS SECTION OF LAW REQUIRES THAT INCENTIVE AWARDS
BE GRANTED SOLELY ON THE BASIS OF MERIT. /42/ THE UNION'S PROPOSAL HERE
INVOLVED, HOWEVER, BASED ON THE LANGUAGE OF THE PROPOSAL, WOULD REQUIRE
THE GRANTING OF INCENTIVE AWARDS TO BARGAINING UNIT EMPLOYEES ON THE
BASIS OF COMPATIBILITY WITH OTHER GROUPS IN THE SOCIETY. THUS, THE
PROPOSAL WOULD INTRODUCE CRITERIA INTO THE GRANTING OF INCENTIVE AWARDS
THAT ARE WHOLLY EXTRANEOUS TO THE MERIT OF THE EMPLOYEE'S CONTRIBUTION
OR PERFORMANCE. ACCORDINGLY, SINCE THE PROPOSAL IS CLEARLY INCOMPATIBLE
WITH THE LAW GOVERNING THE GRANTING OF INCENTIVE AWARDS, IT IS
NONNEGOTIABLE.
UNION PROPOSAL XVIII
ARTICLE 24, SECTION 9.
THE EMPLOYER AGREES TO CREATE A PROFESSIONAL-TYPE CONDITION FOR THE
CREATION AND
MAINTENANCE OF A PROFESSIONAL SPIRIT. THIS INCLUDES SUCH MATTERS AS
OFFICE FACILITIES,
PROFESSIONAL TOOLS AND EQUIPMENT, WORKING SPACE, HELPERS (IN THE FORM
OF TECHNICIANS,
EQUIPMENT SPECIALISTS, AIDES, ETC.), CLERICAL HELP, REFERENCE
MATERIALS, AVAILABILITY OF
MECHANICAL OFFICE EQUIPMENT AND PLEASANT SURROUNDINGS.
AGENCY DETERMINATION
THE AGENCY DETERMINED THAT THE UNION'S PROPOSAL IS EXCEPTED FROM THE
OBLIGATION TO BARGAIN BY SECTION 11(B) OF THE ORDER BECAUSE THE PROPOSAL
CONCERNS THE AGENCY'S STAFFING PATTERNS AND THE TECHNOLOGY OF PERFORMING
THE AGENCY'S WORK.
QUESTION HERE BEFORE THE COUNCIL
THE QUESTION IS WHETHER THE PROPOSAL IS EXCEPTED FROM THE OBLIGATION
TO BARGAIN BY SECTION 11(B) OF THE ORDER.
OPINION
CONCLUSION: THE PROPOSAL IS EXCEPTED FROM THE OBLIGATION TO BARGAIN
BY SECTION 11(B) OF THE ORDER. ACCORDINGLY, THE AGENCY DETERMINATION OF
NONNEGOTIABILITY WAS PROPER AND, PURSUANT TO SECTION 2411.28 OF THE
COUNCIL'S RULES, IS SUSTAINED.
REASONS: SECTION 11(B) PROVIDES, IN RELEVANT PART, THAT "THE
OBLIGATION TO MEET AND CONFER DOES NOT INCLUDE MATTERS WITH RESPECT TO .
. . 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 (I.E., THE STAFFING PATTERNS OF THE AGENCY) (AND) THE
TECHNOLOGY OF PERFORMING (THE AGENCY'S) WORK."
WITH REGARD TO THE EXCLUSION OF MATTERS CONCERNING THE AGENCY'S
STAFFING PATTERNS FROM THE BARGAINING OBLIGATION, THE UNION'S PROPOSAL
WOULD, BY ITS EXPRESS TERMS, REQUIRE THE AGENCY TO PROVIDE BARGAINING
UNIT EMPLOYEES WITH THE ASSISTANCE OF "PARTICULAR TYPES OF POSITIONS OR
EMPLOYEES," E.G., TECHNICIANS, EQUIPMENT SPECIALISTS, AIDES, ETC. THUS,
SINCE THE PROPOSAL WOULD REQUIRE THE AGENCY TO NEGOTIATE OVER ITS
STAFFING PATTERNS IT IS TO THAT EXTENT EXCEPTED FROM THE OBLIGATION TO
BARGAIN BY SECTION 11(B).
THE UNION'S PROPOSAL IS ALSO EXCEPTED FROM THE OBLIGATION TO BARGAIN
BECAUSE IT WOULD REQUIRE THE AGENCY TO NEGOTIATE WITH RESPECT TO THE
TECHNOLOGY OF PERFORMING THE AGENCY'S WORK. IN THIS REGARD, THE COUNCIL
HAS INDICATED THAT PROPOSALS CONCERNING THE PARTICULAR EQUIPMENT TO BE
UTILIZED BY THE AGENCY IN CARRYING OUT ITS MISSION AND PROPOSALS
CONCERNING THE PARTICULAR DESIGN AND USE OF AGENCY WORKSPACE ARE
EXCEPTED FROM THE OBLIGATION TO BARGAIN BECAUSE THEY CONCERN THE
TECHNOLOGY OF PERFORMING THE AGENCY'S WORK. /43/ WHILE THE UNION
PROPOSAL HERE INVOLVED DOES NOT REQUIRE THE AGENCY TO UTILIZE A SPECIFIC
PIECE OF EQUIPMENT OR PARTICULAR WORKPLACE DESIGN, IT WOULD SUBJECT
AGENCY DECISIONS ON THESE MATTERS TO UNION CHALLENGE AND CONSTRAINTS
UNDER THE CONTRACT. THUS, SINCE THE PROPOSAL INVOLVES MATTERS WITH
RESPECT TO THE TECHNOLOGY OF PERFORMING THE AGENCY'S WORK IT IS EXCEPTED
FROM THE OBLIGATION TO BARGAIN BY SECTION 11(B) OF THE ORDER.
UNION PROPOSAL XIX
ARTICLE 24, SECTION 13.
IF THE SUPERVISOR BEGINS TO PERFORM PROFESSIONAL EMPLOYEE'S DUTIES BY
USING THE
PROFESSIONAL'S HELPERS AS AIDES, THE EMPLOYER AGREES TO INVESTIGATE
THE NEED OF ADDITIONAL
PROFESSIONAL EMPLOYEE POSITIONS. THE DATA AND CONCLUSIONS FROM SUCH
AN INVESTIGATION SHALL BE
FURNISHED THE UNION FOR COMMENT AND PROSPECTIVE (SIC).
AGENCY DETERMINATION
THE AGENCY DETERMINED THAT BECAUSE THE PROPOSAL WOULD, IN EFFECT,
PREVENT THE AGENCY FROM ASSIGNING BARGAINING UNIT WORK TO SUPERVISORS IT
VIOLATES SECTION 12(B)(5) OF THE ORDER. THE AGENCY ALSO DETERMINED THAT
INSOFAR AS THE PROPOSAL CONCERNS THE POSSIBILITY OF INCREASING THE
NUMBERS OF EMPLOYEES IT CONCERNS THE AGENCY'S STAFFING PATTERNS AND IS
EXCEPTED FROM THE OBLIGATION TO BARGAIN BY SECTION 11(B) OF THE ORDER.
QUESTIONS HERE BEFORE THE COUNCIL
THE QUESTIONS ARE WHETHER THE PROPOSAL VIOLATES SECTION 12(B)(5) OF
THE ORDER OR IS EXCEPTED FROM THE OBLIGATION TO BARGAIN BY SECTION
11(B).
OPINION
CONCLUSION: CONTRARY TO THE AGENCY DETERMINATION, THE UNION'S
PROPOSAL DOES NOT VIOLATE THE AGENCY'S 12(B)(5) RIGHT TO DETERMINE THE
METHODS, MEANS OR PERSONNEL BY WHICH AGENCY OPERATIONS ARE CONDUCTED.
FURTHER, THE PROPOSAL DOES NOT CONCERN THE AGENCY'S STAFFING PATTERNS
UNDER SECTION 11(B) BUT IS WITHIN THE OBLIGATION TO BARGAIN UNDER
SECTION 11(A) OF THE ORDER. ACCORDINGLY, THE AGENCY DETERMINATION THAT
THE PROPOSAL IS NONNEGOTIABLE WAS IMPROPER AND, PURSUANT TO SECTION
2411.28 OF THE COUNCIL'S RULES, IS SET ASIDE. /44/
REASONS: THE AGENCY ASSERTS THAT BY MAKING THE PERFORMANCE OF
BARGAINING UNIT DUTIES BY SUPERVISORS AN ACT WHICH AUTOMATICALLY
INITIATES AN INVESTIGATION OF THE ACTIVITY'S STAFFING REQUIREMENTS, THE
INTENT OF THE PROPOSAL IS TO PRECLUDE THE ACTIVITY FROM ASSIGNING SUCH
BARGAINING UNIT DUTIES TO SUPERVISORS IN VIOLATION OF SECTION 12(B)(5)
OF THE ORDER. THE AGENCY ALSO ASSERTS THAT BECAUSE THE STUDY
CONTEMPLATED BY THE PROPOSAL WOULD LOOK TOWARD THE POSSIBILITY OF
INCREASING THE NUMBERS OF PROFESSIONAL EMPLOYEES WITHIN THE ACTIVITY,
THE PROPOSAL CONCERNS THE AGENCY'S STAFFING PATTERNS AND IS THEREFORE,
EXCEPTED FROM THE AGENCY'S OBLIGATION TO BARGAIN BY SECTION 11(B) OF THE
ORDER.
IN OUR OPINION, THE AGENCY'S ARGUMENTS ARE WITHOUT MERIT. THERE IS
NOTHING IN THE LANGUAGE OF THE PROPOSAL OR IN THE EXPRESSED INTENT OF
THE UNION AS TO THE MEANING OF THE PROPOSAL WHICH WOULD PRECLUDE THE
AGENCY FROM EXERCISING ITS 12(B)(5) RIGHT TO DETERMINE THE PERSONNEL BY
WHICH AGENCY OPERATIONS ARE CONDUCTED, I.E., IN THE CIRCUMSTANCES OF
THIS CASE, TO ASSIGN SUPERVISORS TO PERFORM BARGAINING UNIT WORK. IN
THIS REGARD, EVEN THOUGH THE PERFORMANCE OF BARGAINING UNIT WORK BY
SUPERVISORS WOULD TRIGGER AN INVESTIGATION OF THE NEED FOR ADDITIONAL
PROFESSIONAL PERSONNEL, IT DOES NOT PRESCRIBE ANY PARTICULAR AGENCY
ACTION AS THE RESULT OF SUCH INVESTIGATION. HENCE, THE PROPOSAL WOULD
NOT VIOLATE MANAGEMENT'S RIGHT TO CONTINUE TO HAVE SUPERVISORS PERFORM
BARGAINING UNIT WORK OR TO ASSIGN BARGAINING UNIT WORK TO SUPERVISORS IN
THE FUTURE. THUS, THE PROPOSAL DOES NOT VIOLATE SECTION 12(B)(5) OF THE
ORDER.
WITH REGARD TO THE AGENCY'S CLAIM THAT THE PROPOSAL CONCERNS THE
STAFFING PATTERNS OF THE ACTIVITY AND IS, THUS, EXCEPTED FROM THE
OBLIGATION TO BARGAIN BY SECTION 11(B) OF THE ORDER, THERE IS NOTHING IN
THE LANGUAGE OF THE PROPOSAL OR IN THE UNION'S EXPRESSED INTENT AS TO
THE MEANING OF THE PROPOSAL WHICH WOULD REQUIRE THE AGENCY TO DO
ANYTHING MORE THAN INVESTIGATE THE NEED FOR ADDITIONAL PERSONNEL. THUS,
EVEN IF SUCH INVESTIGATION DOCUMENTED A "NEED" FOR ADDITIONAL PERSONNEL,
THE AGENCY WOULD BE UNDER NO OBLIGATION TO ACTUALLY OBTAIN ANY
ADDITIONAL PERSONNEL. THEREFORE, SINCE THE PROPOSAL IS NOT
DETERMINATIVE OF THE AGENCY'S STAFFING PATTERNS, IT IS NOT EXCEPTED FROM
THE OBLIGATION TO BARGAIN BY SECTION 11(B) OF THE ORDER.
UNION PROPOSALS XX, XXI, XXII /45/
PROPOSAL XX, ARTICLE 25, SECTION 1.
PROMOTIONAL SELECTION PANELS. THE EMPLOYER AGREES TO GRANT UNION
PARTICIPATION ON ALL JOB
PROMOTION SELECTION PANELS FOR ALL POSITIONS CLASSIFIED AS
PROFESSIONAL BY THE CIVIL SERVICE
COMMISSION. THE EMPLOYER ALSO AGREES TO PERMIT THE UNION TO
PARTICIPATE IN SELECTION PANELS
FOR POSITIONS ON WHICH A PROFESSIONAL EMPLOYEE HAS APPLIED FOR. THE
UNION AGREES TO PROVIDE A
PANEL MEMBER FROM ITS MEMBERSHIP TO PARTICIPATE IN SUCH PROMOTIONAL
PANELS OR IF IT SO DESIRES
TO DECLINE TO PARTICIPATE.
PROPOSAL XXI, ARTICLE 25, SECTION 2.
POSITION QUALIFICATION CREDITING PLAN. THE UNION WILL BE ALLOWED TO
PARTICIPATE AS A FULL
PARTNER IN THE PROCESS OF DETERMINING THE QUALIFICATION CREDITING
PLAN FOR THE QUALIFICATION
CRITERIA OF ANY POSITION TO BE FILLED FOR WHICH PROFESSIONAL
EMPLOYEES ARE QUALIFIED.
PROPOSAL XXII, ARTICLE 25, SECTION 3.
CRITERIA FOR HIGHLY QUALIFIED CANDIDATES. THE UNION WILL BE ALLOWED
TO PARTICIPATE AS A
FULL PARTNER IN THE PROCESS OF DETERMINING THE CRITERIA FOR HIGHLY
QUALIFIED CANDIDATES FOR
ANY POSITION TO BE FILLED FOR WHICH PROFESSIONAL EMPLOYEES ARE
QUALIFIED.
AGENCY DETERMINATION
THE AGENCY DETERMINED THAT THESE THREE PROPOSALS ARE OUTSIDE THE
SCOPE OF BARGAINING ESTABLISHED BY SECTION 11(A) OF THE ORDER BECAUSE
THEY WOULD APPLY TO POSITIONS OUTSIDE THE BARGAINING UNIT.
QUESTION HERE BEFORE THE COUNCIL
THE QUESTION IS WHETHER THE PROPOSALS ARE OUTSIDE THE OBLIGATION TO
BARGAIN ESTABLISHED BY SECTION 11(A) OF THE ORDER.
OPINION
CONCLUSION: THE PROPOSALS ARE OUTSIDE THE REQUIRED SCOPE OF
BARGAINING UNDER SECTION 11(A) OF THE ORDER. ACCORDINGLY, THE AGENCY
DETERMINATIONS OF NONNEGOTIABILITY WERE PROPER AND, PURSUANT TO SECTION
2411.28 OF THE COUNCIL'S RULES, ARE SUSTAINED.
REASONS: SECTION 11(A) OF THE ORDER ESTABLISHES AN OBLIGATION TO
BARGAIN ON PERSONNEL POLICIES AFFECTING BARGAINING UNIT EMPLOYEES. /46/
THE THREE UNION PROPOSALS HERE INVOLVED, HOWEVER, WOULD BY THEIR EXPRESS
TERMS RESULT IN PROCEDURES APPLICABLE TO BARGAINING UNIT POSITIONS BEING
APPLIED TO POSITIONS OUTSIDE THE BARGAINING UNIT. FOR EXAMPLE, PROPOSAL
XX WOULD PERMIT THE UNION TO PARTICIPATE IN SELECTION PANELS FOR
"POSITIONS ON WHICH A PROFESSIONAL EMPLOYEE HAS APPLIED FOR." PROPOSAL
XXI WOULD PERMIT THE UNION TO PARTICIPATE IN DETERMINING THE CRITERIA
FOR HIGHLY QUALIFIED CANDIDATES FOR "ANY POSITION TO BE FILLED FOR WHICH
PROFESSIONAL EMPLOYEES ARE QUALIFIED."
ACCORDINGLY, SINCE THESE PROPOSED PROCEDURES ARE NOT LIMITED TO
BARGAINING UNIT POSITIONS THEY DO NOT DIRECTLY RELATE TO PERSONNEL
POLICIES AND PRACTICES AND MATTERS AFFECTING BARGAINING UNIT WORKING
CONDITIONS WHICH ARE ENCOMPASSED WITHIN THE BARGAINING OBLIGATION OF
SECTION 11(A) OF THE ORDER. THUS, THEY ARE NONNEGOTIABLE. /47/
UNION PROPOSAL XXIII
ARTICLE 25, SECTION 4.
THE EMPLOYER AGREES TO NOTIFY THE UNION ON ANY ACTION WHICH WILL
CREATE, DISSOLVE OR
DOWNGRADE ANY PROFESSIONAL POSITIONS. THE UNION WILL BE GIVEN A
REASONABLE TIME TO PREPARE
COMMENTS TO PROPOSED ACTIONS.
AGENCY DETERMINATION
THE AGENCY DETERMINED THAT THE UNION'S PROPOSAL IS NONNEGOTIABLE
BECAUSE IT WOULD SO DELAY AND IMPEDE MANAGEMENT'S RESERVED RIGHT UNDER
SECTION 12(B)(2) TO TAKE PROMPT, TIMELY PERSONNEL ACTIONS AS TO NEGATE
THAT RIGHT.
QUESTION HERE BEFORE THE COUNCIL
THE QUESTION IS WHETHER THE UNION'S PROPOSAL VIOLATES SECTION
12(B)(2) OF THE ORDER.
OPINION
CONCLUSION: THE PROPOSAL WOULD NEGATE MANAGEMENT'S RIGHT TO TAKE
ACTIONS UNDER SECTION 12(B)(2). ACCORDINGLY, THE AGENCY DETERMINATION
OF NONNEGOTIABILITY WAS PROPER AND, PURSUANT TO SECTION 2411.28 OF THE
COUNCIL'S RULES, IS SUSTAINED.
REASONS: AS WE PREVIOUSLY INDICATED IN THIS DECISION, /48/ AGENCY
MANAGEMENT HAS THE RIGHT TO EFFECT THE PERSONNEL ACTIONS LISTED IN
SECTION 12(B)(2) IN A PROMPT, TIMELY MANNER. THUS, WE DETERMINED THAT
UNION PROPOSAL XVI, HEREIN, WHICH WOULD RESULT IN DELAYS OF INDEFINITE
AND UNCERTAIN DURATION, VIOLATED SECTION 12(B)(2) OF THE ORDER. THE
PROPOSAL HERE INVOLVED WOULD REQUIRE MANAGEMENT TO DELAY ANY ACTION "TO
CREATE, DISSOLVE OR DOWNGRADE ANY PROFESSIONAL POSITION" UNTIL THE UNION
IS GRANTED A "REASONABLE" TIME TO PREPARE COMMENTS ON THE PROPOSED
ACTION. AS WITH PROPOSAL XVI, NEITHER THE PROPOSAL ITSELF, NOR THE
UNION'S SUBMISSION IN SUPPORT OF THE PROPOSAL, DEFINES THE TERM
"REASONABLE." THUS, THIS PROPOSAL ALSO WOULD RESULT IN DELAYS OF
INDEFINITE AND UNCERTAIN DURATION IN THE EXERCISE BY MANAGEMENT OF ITS
RIGHTS TO CREATE, DISSOLVE OR DOWNGRADE ANY POSITION. IN OUR OPINION,
SUCH DELAYS OF INDEFINITE AND UNCERTAIN DURATION, IN THE CIRCUMSTANCES
OF THIS CASE, INTERFERE WITH MANAGEMENT'S RIGHT TO TAKE PROMPT TIMELY
ACTIONS IN MATTERS RESERVED TO IT UNDER SECTION 12(B)(2) OF THE ORDER.
STATED OTHERWISE, THE UNION'S PROPOSAL HERE WOULD SO DELAY AND IMPEDE
THE EXERCISE OF THE RESERVED RIGHTS UNDER SECTION 12(B)(2) AS TO NEGATE
THOSE RIGHTS AND, HENCE, VIOLATES SECTION 12(B)(2) OF THE ORDER.
UNION PROPOSAL XXIV
ARTICLE 26, SECTION 4.
ALSO, THE EMPLOYER AGREES, WHEN ISSUING AWARDS OF RECOGNITION TO
OTHER EMPLOYEES FOR PARTICIPATION IN A PROJECT, CONCEIVING AN IDEA,
ETC., TO VERIFY IF AN ENGINEER OR OTHER PROFESSIONAL EMPLOYEE
PARTICIPATED IN AND WAS ASSIGNED SIGNIFICANT RESPONSIBILITY IN THE
PROJECT. IF SUCH IS VERIFIED, THE EMPLOYER AGREES TO GIVE THAT ENGINEER
OR OTHER PROFESSIONAL EMPLOYEE JUST RECOGNITION.
AGENCY DETERMINATION
THE AGENCY DETERMINED THAT THE UNION'S PROPOSAL IS NONNEGOTIABLE
BECAUSE IT IS CONTRARY TO LAW, NAMELY, 5 U.S.C. 4503, WHICH SECTION
CONCERNS THE GRANTING OF INCENTIVE AWARDS.
QUESTION HERE BEFORE THE COUNCIL
THE QUESTION IS WHETHER THE PROPOSAL VIOLATES LAW.
OPINION
CONCLUSION: THE PROPOSAL VIOLATES 5 U.S.C. 4503. ACCORDINGLY, THE
AGENCY DETERMINATION OF NONNEGOTIABILITY WAS PROPER AND, PURSUANT TO
SECTION 2411.28 OF THE COUNCIL'S RULES, IS SUSTAINED.
REASONS: 5 U.S.C. 4503 AS PREVIOUSLY SET FORTH IN THIS DECISION,
/49/ ESTABLISHES THAT INCENTIVE AWARDS ARE TO BE GRANTED SOLELY ON THE
BASIS OF THE MERIT OF THE EMPLOYEE'S CONTRIBUTION OR PERFORMANCE. /50/
THE UNION'S PROPOSAL HERE INVOLVED, HOWEVER, BY ITS EXPRESS LANGUAGE,
WOULD RESULT IN AN EMPLOYEE BEING GRANTED AN AWARD ON THE BASIS OF
ASSIGNING THAT EMPLOYEE "SIGNIFICANT RESPONSIBILITY IN THE PROJECT"
RATHER THAN ON THE MERIT OF THE EMPLOYEE'S PERFORMANCE. THUS, SINCE THE
UNION'S PROPOSAL IS WHOLLY EXTRANEOUS TO THE MERIT OF THE EMPLOYEE'S
CONTRIBUTION OR PERFORMANCE, THE UNION'S PROPOSAL IS CLEARLY
INCOMPATIBLE WITH 5 U.S.C. 4503 AND IS NONNEGOTIABLE.
BY THE COUNCIL.
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
ISSUED: DECEMBER 28, 1978
/1/ THIS APPEAL WAS TIMELY FILED UNDER SECTION 2411.24(C)(1) OF THE
COUNCIL'S RULES AFTER THE AGENCY HEAD DECLINED TO RENDER A NEGOTIABILITY
DETERMINATION. IN ITS STATEMENT OF POSITION TO THE COUNCIL, THE AGENCY
REQUESTED THAT THE UNION'S APPEAL BE DISMISSED ON THE GROUNDS THAT THE
LOCAL PARTIES HAD NOT EXTENDED SUFFICIENT EFFORT IN SEEKING ACCEPTABLE
ALTERNATIVES TO PROPOSALS PRESENTING NEGOTIABILITY PROBLEMS. THIS
REQUEST WAS DENIED BASED ON THE COUNCIL'S DECISION IN 77P-3 (MAR. 15,
1978), REPORT NO. 146, IN WHICH THE COUNCIL RULED THAT THE ORDER IMPOSES
AN AFFIRMATIVE OBLIGATION UPON AN AGENCY HEAD TO RENDER A DETERMINATION
ON THE NEGOTIABILITY OF BARGAINING PROPOSALS WHEN REQUESTED BY A LABOR
ORGANIZATION PROVIDED THAT THE NEGOTIABILITY ISSUE AROSE IN CONNECTION
WITH NEGOTIATIONS. THE AGENCY WAS GRANTED ADDITIONAL TIME TO ADDRESS THE
NEGOTIABILITY OF EACH OF THE PROPOSALS CONTAINED IN THE UNION'S APPEAL
UPON WHICH LOCAL AGREEMENT HAD NOT BEEN REACHED. ADDITIONALLY, THE
UNION WAS GRANTED TIME TO FILE A RESPONSE TO THE AGENCY'S SUBMISSION.
THE AGENCY RESPONDED TO THE COUNCIL'S REQUEST AND ITS POSITION WITH
REGARD TO EACH OF THE UNION'S PROPOSALS IS INCLUDED HEREIN. THE UNION
DID NOT FILE ANY RESPONSE.
/2/ SECTION 6(A) OF THE ORDER PROVIDES IN PERTINENT PART AS FOLLOWS:
SEC. 6. ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS.
(A) THE ASSISTANT
SECRETARY SHALL--
(1) DECIDE QUESTIONS AS TO THE APPROPRIATE UNIT FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION
AND RELATED ISSUES SUBMITTED FOR HIS CONSIDERATION;
(2) SUPERVISE ELECTIONS TO DETERMINE WHETHER A LABOR ORGANIZATION IS
THE CHOICE OF A
MAJORITY OF EMPLOYEES IN AN APPROPRIATE UNIT AS THE EXCLUSIVE
REPRESENTATIVE, AND CERTIFY THE
RESULTS;. . . .
/3/ IN VIEW OF OUR DECISION THAT THE PROPOSAL VIOLATES SECTION
6(A)(1) AND (2) OF THE ORDER, IT IS UNNECESSARY TO FURTHER CONSIDER THE
REMAINING CONTENTION OF THE AGENCY AS TO THE NEGOTIABILITY OF THE
PROPOSAL.
/4/ NOTE 2 SUPRA.
/5/ LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1975) AT
68-69.
/6/ THIS DECISION SHOULD NOT BE CONSTRUED AS EXPRESSING OR IMPLYING
ANY OPINION OF THE COUNCIL AS TO THE MERITS OF THE PROPOSAL. WE DECIDE
ONLY THAT, IN THE CIRCUMSTANCES PRESENTED, THE PROPOSAL IS PROPERLY
SUBJECT TO NEGOTIATION BY THE PARTIES CONCERNED UNDER SECTION 11(A) OF
THE ORDER.
/7/ SEE, E.G., 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, 3 FLRC NO. 73A-36, SUPPLEMENTAL DECISION (JUNE 10, 1975),
REPORT NO. 73, AFF'D SUB NOM. NATIONAL BROILER COUNCIL V. FLRC, CIVIL
ACTION NO. 147-- 74-A (E.D. VA. OCT. 16, 1975)).
/8/ E.G., AFGE LOCAL 1738 AND VA HOSPITAL, SALISBURY, NORTH CAROLINA
4 FLRC 376 (FLRC NO. 75A-103 (JULY 8, 1976), REPORT NO. 107).
/9/ VETERANS ADMINISTRATION INDEPENDENT SERVICE EMPLOYEES UNION AND
VETERANS ADMINISTRATION RESEARCH HOSPITAL, CHICAGO, ILLINOIS, 1 FLRC
227, 230 (FLRC NO. 71A-31 (NOV. 22, 1972), REPORT NO. 31).
/10/ IN NATIONAL COUNCIL OF OEO LOCALS, AFGE, AFL-CIO, AND OFFICE OF
ECONOMIC OPPORTUNITY (HARKLESS, ARBITRATOR), 2 FLRC 293 (FLRC NO. 73A-67
(DEC. 6, 1974), REPORT NO. 61), THE COUNCIL INDICATED, IN INTERPRETING
AND APPLYING SECTION 12(B)(2), 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.
WHILE SUCH DECISION CONCERNED ONLY SECTION 12(B)(2), ITS REASONING IS
ALSO APPLICABLE TO SECTION 12(B)(1).
/11/ SEE 5 C.F.R. 550.112-- 550/114.
/12/ IN VIEW OF OUR DECISION THAT THE PROPOSAL IS EXCEPTED FROM THE
OBLIGATION TO BARGAIN BY SECTION 11(B) BECAUSE IT CONCERNS MATTERS WITH
RESPECT TO THE AGENCY'S INTERNAL SECURITY PRACTICES, IT IS UNNECESSARY
TO FURTHER CONSIDER THE REMAINING CONTENTIONS OF THE AGENCY AS TO THE
NEGOTIABILITY OF THE PROPOSAL.
/13/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1592
AND ARMY-AIR FORCE EXCHANGE SERVICE, HILL AIR FORCE BASE, UTAH, FLRC NO.
77A-123 (AUG. 14, 1978), REPORT NO. 153.
/14/ IN VIEW OF OUR DECISION THAT THE PROPOSAL VIOLATES SECTION 10(E)
OF THE ORDER, IT IS UNNECESSARY TO FURTHER CONSIDER THE REMAINING
CONTENTION OF THE AGENCY THAT THE PROPOSAL VIOLATES SECTIONS 19(B)(1)
AND (2) OF THE ORDER.
/15/ IN VIEW OF OUR DECISION THAT THE FIRST SENTENCE OF THE PROPOSAL
VIOLATES SECTION 10(E) OF THE ORDER, IT IS UNNECESSARY TO FURTHER
CONSIDER THE REMAINING CONTENTION OF THE AGENCY AS TO THE NEGOTIABILITY
OF THE FIRST SENTENCE OF THE PROPOSAL.
/16/ IN VIEW OF OUR DECISION THAT THE THIRD AND LAST SENTENCES OF THE
PROPOSAL ARE EXCEPTED FROM THE OBLIGATION TO BARGAIN BY SECTION 11(B) OF
THE ORDER, IT IS UNNECESSARY TO FURTHER CONSIDER THE REMAINING
CONTENTION OF THE AGENCY AS TO THE NEGOTIABILITY OF THOSE SENTENCES.
/17/ 73 AM. JUR. STATUTES 206(1974).
/18/ TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL AND
NAVAL PUBLIC WORKS CENTER, NORFOLK, VIRGINIA, 1 FLRC 431, 436 (FLRC NO.
71A-56 (JUNE 29, 1973), REPORT NO. 41).
/19/ WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1966).
/20/ THESE TWO PROPOSALS INVOLVE SIMILAR CONSIDERATIONS AND ARE
TREATED TOGETHER, HEREIN, FOR CONVENIENCE OF DECISION.
/21/ IN VIEW OF OUR DECISION THAT THE PROPOSALS ARE OUTSIDE THE
MANDATORY OBLIGATION TO BARGAIN UNDER SECTION 11(A) OF THE ORDER, IT IS
NECESSARY TO FURTHER CONSIDER THE REMAINING CONTENTIONS OF THE AGENCY AS
TO THE NEGOTIABILITY OF EACH PROPOSAL.
/22/ TEXAS ANG COUNCIL OF LOCALS, AFGE AND STATE OF TEXAS NATIONAL
GUARD, 4 FLRC 153 (FLRC NO. 74A-71 (MAR. 3, 1976), REPORT NO. 100). SEE
ALSO INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS,
LOCAL LODGE 1859 AND MARINE CORPS AIR STATION AND NAVAL AIR REWORK
FACILITY, CHERRY POINT, NORTH CAROLINE, FLRC NO. 78A-28 (FEB. 28, 1978),
REPORT NO. 145 AT 3 OF DECISION.
/23/ IN VIEW OF OUR DECISION HEREIN, IT IS UNNECESSARY TO FURTHER
CONSIDER THE REMAINING CONTENTION OF THE AGENCY AS TO THE NEGOTIABILITY
OF THE PROPOSAL
/24/ LOCAL LODGE 2333, INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS AND WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRC 280
(FLRC NO. 74A-2 (DEC. 5, 1974), REPORT NO. 60).
/25/ SECTION 11(A) OF THE ORDER PROVIDES, IN RELEVANT PART, AS
FOLLOWS:
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 . . . THIS ORDER.
/26/ CF. NATIONAL TREASURY EMPLOYEES UNION AND U.S. CUSTOMS SERVICE,
REGION VII, LOS ANGELES, CALIFORNIA, 5 FLRC 609 (FLRC NO. 76A-111 (JULY
13, 1977), REPORT NO. 131) AND CASES CITED THEREIN.
/27/ THE IMPACT ON PERSONNEL POLICIES AND PRACTICES CONCERNING
BARGAINING UNIT MEMBERS AND ON BARGAINING UNIT WORKING CONDITIONS OF A
DECISION OF THE ACTIVITY COMMANDER, BASED ON A SURVEY RECOMMENDATION OR
REQUIREMENT, WOULD, OF COURSE, BE A PROPER MATTER FOR NEGOTIATION UNDER
SECTION 11(A) OF THE ORDER.
/28/ IN VIEW OF OUR DECISION HEREIN, IT IS UNNECESSARY TO FURTHER
CONSIDER THE REMAINING CONTENTION OF THE AGENCY AS TO THE NEGOTIABILITY
OF THE PROPOSAL.
/29/ E.G., NATIONAL TREASURY EMPLOYEES UNION CHAPTER NO. 010 AND
INTERNAL REVENUE SERVICE, CHICAGO DISTRICT, 4 FLRC 125 (FLRC NO. 74A-93
(FEB 24, 1976), REPORT NO. 98).
/30/ SEE COUNCIL OPINION CONCERNING PROPOSAL III, P. 4 SUPRA AND
COUNCIL OPINION CONCERNING PROPOSAL XI, P. 15 SUPRA.
/31/ E.G., NAGE, LOCAL R12-58 AND MCCLELLAN AIR FORCE BASE, 4 FLRC
523 (FLRC NO. 75A-90 (OCT. 22, 1976), REPORT NO. 114).
/32/ THIS DECISION SHOULD NOT BE CONSTRUED AS EXPRESSING OR IMPLYING
ANY OPINION OF THE COUNCIL AS TO THE MERITS OF THE PROPOSAL. WE DECIDE
ONLY THAT, IN THE CIRCUMSTANCES PRESENTED, THE PROPOSAL IS PROPERLY
SUBJECT TO NEGOTIATION BY THE PARTIES CONCERNED UNDER SECTION 11(A) OF
THE ORDER.
/33/ INCLUDED IN THE 12(B)(2) RIGHT TO ASSIGN ARE THE RIGHTS TO
"TEMPORARILY ASSIGN" AND TO "DETAIL." LOCAL 174 INTERNATIONAL FEDERATION
OF PROFESSIONAL AND TECHNICAL ENGINEERS, AFL-CIO, CLC AND LONG BEACH
NAVAL SHIPYARD, LONG BEACH, CALIFORNIA, 2 FLRC 157, 161 N. 5. (FLRC NO.
73A-16 (JULY 31, 1974), REPORT NO. 55).
/34/ WE NOTE THAT THIS PROPOSAL WOULD NOT AFFORD EMPLOYEES A MEANS OF
CHALLENGING JOB CLASSIFICATIONS WHICH CLASSIFICATIONS APPEALS ARE
SUBJECT EXCLUSIVELY TO STATUTORY APPEALS PROCEDURES UNDER 5 U.S.C. 5112
AND 5 U.S.C. 5346. CF. COMMUNITY SERVICES ADMINISTRATION, DALLAS,
TEXAS, ASSISTANT SECRETARY CASE NO. 63-5997 (GA) (JULY 6, 1978) AT 2 OF
ATTACHMENT.
/35/ VETERANS ADMINISTRATION INDEPENDENT SERVICE EMPLOYEES UNION AND
VETERANS ADMINISTRATION RESEARCH HOSPITAL, CHICAGO, ILLINOIS, 1 FLRC 227
(FLRC NO. 71A-31 (NOV. 22, 1972), REPORT NO. 31).
/36/ LOCAL 63, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
AND BLAINE AIR FORCE STATION, BLAINE, WASHINGTON, 3 FLRC 75 (FLRC NO.
74A-33 (JAN. 8, 1975), REPORT NO. 61). IN THAT CASE, THE UNION PROPOSAL
WOULD HAVE PREVENTED MANAGEMENT FROM FILLING ANY VACANCY ON A PERMANENT
BASIS, WHEN A FORMAL GRIEVANCE IS FILED UNDER THE AGENCY GRIEVANCE
PROCEDURE, UNTIL THE GRIEVANCE IS FINALLY RESOLVED OR UNTIL AN EMPLOYEE
HAS EXERCISED ANY OF HIS STATUTORY OR MANDATORY PLACEMENT RIGHTS,
WHICHEVER OCCURS FIRST.
/37/ ID. AT 79.
/38/ NATIONAL TREASURY EMPLOYEES UNION AND BUREAU OF ALCOHOL, TOBACCO
AND FIREARMS, DEPARTMENT OF THE TREASURY, FLRC NO. 77A-58 (JAN. 27,
1978), REPORT NO. 142.
/39/ ID. AT 4 OF DECISION.
/40/ WE MAKE NO DETERMINATION AS TO THE PRECISE LENGTH OF TIME WHICH
MIGHT BE PROVIDED TO EMPLOYEES FOR THE PURPOSES SET FORTH IN THE
PROPOSAL WITHOUT BEING VIOLATIVE OF SECTION 12(B).
/41/ IN VIEW OF OUR DECISION THAT THE PROPOSAL VIOLATES 5 U.S.C.
4503, IT IS UNNECESSARY TO FURTHER CONSIDER THE REMAINING CONTENTIONS OF
THE AGENCY AS TO THE NEGOTIABILITY OF THE PROPOSAL.
/42/ NFFE LOCAL 1555 AND TOBACCO DIVISION, AMS, USDA, 3 FLRC 242
(FLRC NO. 74A-31 (MAY 9, 1975), REPORT NO. 69).
/43/ E.G., NATIONAL TREASURY EMPLOYEES UNION CHAPTER NO. 010 AND
INTERNAL REVENUE SERVICE, CHICAGO, DISTRICT, 4 FLRC 125 (FLRC NO. 74A-93
(FEB. 24, 1976), REPORT NO. 98).
/44/ THIS DECISION SHOULD NOT BE CONSTRUED AS EXPRESSING OR IMPLYING
ANY OPINION OF THE COUNCIL AS TO THE MERITS OF THE PROPOSAL. WE DECIDE
ONLY THAT, IN THE CIRCUMSTANCES PRESENTED, THE PROPOSAL IS PROPERLY
SUBJECT TO NEGOTIATION BY THE PARTIES CONCERNED UNDER SECTION 11(A) OF
THE ORDER.
/45/ THESE THREE PROPOSALS INVOLVE SIMILAR CONSIDERATIONS AND ARE
TREATED TOGETHER, HEREIN, FOR CONVENIENCE OF DECISION.
/46/ SECTION 11(A) OF THE ORDER PROVIDES, IN RELEVANT PART, AS
FOLLOWS:
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 . . . THIS ORDER.
/47/ SEE INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
WORKERS, LOCAL LODGE 1859 AND MARINE CORPS AIR STATION AND NAVAL AIR
REWORK FACILITY, CHERRY POINT, NORTH CAROLINA, FLRC NO. 77A-28 (FEB. 28,
1978), REPORT NO. 145 AT 7 OF COUNCIL DECISION.
/48/ SEE COUNCIL OPINION CONCERNING PROPOSAL XVI, P. 21 SUPRA.
/49/ SEE COUNCIL'S OPINION PROPOSAL XVII, P. 24 SUPRA.
/50/ NFFE LOCAL 1552 AND TOBACCO DIVISION, AMS, USDA, 3 FLRC 242
(FLRC NO. 74A-31 (MAY 9, 1975), REPORT NO. 69).
6 FLRC 1063; FLRC NO. 77A-31; DECEMBER 28, 1978.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 1760
AND
NORTHEASTERN PROGRAM SERVICE CENTER
FLRC NO. 77A-31
DECISION ON APPEAL FROM ARBITRATION AWARD
(SYNOPSIS) FLRC NO. 77A-31
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1760 AND
NORTHEASTERN PROGRAM SERVICE CENTER (WOLFF, ARBITRATOR). THE ARBITRATOR
FOUND THAT THE AGENCY WAS NOT JUSTIFIED IN DELAYING THE GRIEVANT'S
CAREER-LADDER PROMOTION, AND, AS A REMEDY, ORDERED THAT THE GRIEVANT'S
PROMOTION BE MADE RETROACTIVE TO AN EARLIER DATE WITH BACKPAY. THE
COUNCIL INITIALLY DENIED THE AGENCY'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 (5 FLRC 792), BUT SUBSEQUENTLY
GRANTED THE AGENCY'S REQUEST FOR RECONSIDERATION OF THAT DECISION, IN
LIGHT OF THE COMPTROLLER GENERAL'S DECISION IN MATTER OF: JANICE LEVY--
ARBITRATION AWARD OF RETROACTIVE PROMOTION AND BACKPAY, B-190408,
DECEMBER 21, 1977. THEREAFTER, THE COUNCIL ACCEPTED THE AGENCY'S
PETITION FOR REVIEW INSOFAR AS IT RELATED TO THE EXCEPTION ALLEGING THAT
THE AWARD VIOLATED APPLICABLE LAW AND APPROPRIATE REGULATION. THE
COUNCIL ALSO GRANTED THE AGENCY'S REQUEST FOR A STAY. (REPORT NO. 149)
COUNCIL ACTION (DECEMBER 28, 1978). BASED UPON A DECISION OF THE
COMPTROLLER GENERAL, RENDERED IN RESPONSE TO THE COUNCIL'S REQUEST, THE
COUNCIL FOUND THAT THE ARBITRATOR'S AWARD OF RETROACTIVE PROMOTION AND
BACKPAY VIOLATED APPLICABLE LAW AND APPROPRIATE REGULATION.
ACCORDINGLY, PURSUANT TO SECTION 2411.37(B) OF ITS RULES OF PROCEDURE,
THE COUNCIL MODIFIED THE ARBITRATOR'S AWARD BY STRIKING THE PORTION
THEREOF FOUND VIOLATIVE OF APPLICABLE LAW AND APPROPRIATE REGULATION.
AS SO MODIFIED, THE COUNCIL SUSTAINED THE AWARD AND VACATED THE STAY
WHICH IT HAD PREVIOUSLY GRANTED.
BACKGROUND OF CASE
ACCORDING TO THE ARBITRATOR'S AWARD AND THE RECORD BEFORE THE
COUNCIL, THE GRIEVANT WAS HIRED BY THE SOCIAL SECURITY ADMINISTRATION IN
SEPTEMBER 1974 UNDER A TEMPORARY APPOINTMENT AS A GS-5 CLAIMS
REPRESENTATIVE TRAINEE. AFTER 3 WEEKS OF TRAINING, HE WAS ASSIGNED TO A
BRANCH OFFICE OF THE AGENCY. BECAUSE OF THE TEMPORARY NATURE OF HIS
APPOINTMENT, HE DID NOT RECEIVE THE NORMAL 12 WEEKS OF TRAINING. IN MAY
1975 HE WAS TRANSFERRED TO THE ACTIVITY WHERE HE WAS GIVEN A TERM
APPOINTMENT AS A GS-5 BENEFIT AUTHORIZER TRAINEE. HE RECEIVED, ALONG
WITH OTHERS HIRED IN MAY 1975 FOR THE SAME POSITION, 7 WEEKS OF TRAINING
IN A PARTICULAR AREA OF OPERATIONS. THEY DID NOT RECEIVE THE FULL RANGE
OF 16 WEEKS OF FORMAL TRAINING BECAUSE OF A BACKLOG OF CASES THE
ACTIVITY WANTED TO REDUCE. IN SEPTEMBER 1975 THE GRIEVANT RECEIVED A
WITHIN-GRADE INCREASE BECAUSE HE HAD PERFORMED AT AN ACCEPTABLE LEVEL OF
COMPETENCE AT THE GS-5 LEVEL FOR 1 YEAR.
THE DISPUTE IN THIS MATTER AROSE WHEN IN RESPONSE TO AN INQUIRY FROM
THE GRIEVANT, THE ACTIVITY NOTIFIED HIM IN DECEMBER 1975 THAT HE WAS
INELIGIBLE FOR PROMOTION TO GS-7 UNTIL HE COMPLETED THE FULL RANGE OF
FORMAL TRAINING. HE THEN FILED A GRIEVANCE CONTENDING THAT THE ACTIVITY
HAD VIOLATED THE PARTIES' NEGOTIATED AGREEMENT BY REFUSING TO PROMOTE
HIM. ON JUNE 6, 1976, THE GRIEVANT AND THE REST OF THIS CLASS OF
TRAINEES WERE PROMOTED TO GS-7 WITHOUT HAVING RECEIVED ANY ADDITIONAL
DOCUMENTED TRAINING. DESPITE THIS PROMOTION, THE GRIEVANT CONTENDED
THAT HE WAS ENTITLED TO THE PROMOTION AS OF OCTOBER 12, 1975, ON THE
BASIS OF A PERSONNEL POLICY WHICH ASSERTEDLY GIVES EMPLOYEES THEIR
CAREER LADDER PROMOTIONS ON THE COMMENCEMENT OF THE PAY PERIOD FOLLOWING
A WITHIN-GRADE INCREASE IF THE EMPLOYEES ARE QUALIFIED. THE MATTER WAS
ULTIMATELY SUBMITTED TO ARBITRATION.
THE ARBITRATOR FOUND THAT THE GRIEVANT'S FAILURE TO COMPLETE THE FULL
RANGE OF TRAINING WAS THE RESPONSIBILITY OF THE ACTIVITY. THE
ARBITRATOR ALSO OBSERVED THAT THE GRIEVANT AND THE OTHER TRAINEES HAD
BEEN PROMOTED IN JUNE 1976 WITHOUT FURTHER TRAINING AND THAT IT WAS
UNCONTROVERTED THAT THE GRIEVANT WAS DOING THE SAME WORK IN SEPTEMBER
AND OCTOBER OF 1975 AS HE WAS IN JUNE 1976 WHEN HE WAS PROMOTED. ON
THIS BASIS THE ARBITRATOR DETERMINED THAT THE GRIEVANT WAS QUALIFIED FOR
PROMOTION TO GS-7 IN OCTOBER 1975. HE ALSO DETERMINED THAT THE ACTIVITY
WAS NOT JUSTIFIED IN DELAYING THE GRIEVANT'S PROMOTION UNTIL THE OTHER
TRAINEES WERE ELIGIBLE FOR PROMOTION. IN THE ARBITRATOR'S OPINION "TO
PERMIT THIS WOULD, IN EFFECT, BE DENYING GRIEVANT THE CONTRACTUAL 'EQUAL
OPPORTUNITY' IN THE PROMOTION PROGRAM (ART. 14B)." /1/ THE ARBITRATOR
THEREFORE SUSTAINED THE GRIEVANCE AND ORDERED THAT THE GRIEVANT BE
RETROACTIVELY PROMOTED EFFECTIVE OCTOBER 12, 1975, WITH BACKPAY.
AGENCY'S APPEAL TO THE COUNCIL
THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD WITH
THE COUNCIL. THE COUNCIL INITIALLY DENIED THE AGENCY'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. 5 FLRC 792
(FLRC NO. 77A-31 (AUG. 26, 1977), REPORT NO. 136). HOWEVER, SUBSEQUENT
TO THE COUNCIL'S DECISION DENYING THE PETITION FOR REVIEW, THE
COMPTROLLER GENERAL ISSUED HIS DECISION IN MATTER OF: JANICE LEVY--
ARBITRATION AWARD OF RETROACTIVE PROMOTION AND BACKPAY, B-190408,
DECEMBER 21, 1977. BECAUSE THE COMPTROLLER GENERAL'S DECISION WAS OF
PRECEDENTIAL SIGNIFICANCE WITH REGARD TO THE AGENCY'S PETITION FOR
REVIEW, THE COUNCIL GRANTED THE AGENCY'S REQUEST FOR RECONSIDERATION OF
THE COUNCIL'S DECISION OF AUGUST 26, 1977, IN WHICH, AS NOTED, THE
COUNCIL HAD DENIED THE AGENCY'S PETITION FOR REVIEW. UPON
RECONSIDERATION IN LIGHT OF THE COMPTROLLER GENERAL'S DECISION IN JANICE
LEVY, THE COUNCIL ACCEPTED THE AGENCY'S PETITION FOR REVIEW INSOFAR AS
IT RELATED TO THE AGENCY'S EXCEPTION WHICH ALLEGES THAT THE AWARD
VIOLATES APPLICABLE LAW AND APPROPRIATE REGULATION. ALSO UPON
RECONSIDERATION, THE COUNCIL DETERMINED THAT AN ISSUANCE OF A STAY OF
THE AWARD WAS WARRANTED AND THE AGENCY'S REQUEST FOR A STAY WAS
THEREFORE GRANTED.
OPINION
SECTION 2411.37(A) OF THE COUNCIL'S RULES OF PROCEDURE PROVIDES:
(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 NOTED, THE COUNCIL ACCEPTED THE AGENCY'S PETITION FOR
REVIEW INSOFAR AS IT RELATED TO ITS EXCEPTION WHICH ALLEGES THAT THE
AWARD VIOLATES APPLICABLE LAW AND APPROPRIATE REGULATION.
BECAUSE THIS CASE INVOLVES AN ISSUE WITHIN THE JURISDICTION OF THE
COMPTROLLER GENERAL'S OFFICE AND BECAUSE THE COUNCIL WAS UNCERTAIN IN
VIEW OF JANICE LEVY AS TO THE APPLICABILITY OF PRIOR COMPTROLLER GENERAL
DECISIONS TO THE FACTS OF THIS CASE, THE COUNCIL REQUESTED FROM THE
COMPTROLLER GENERAL A DECISION AS TO WHETHER THE ARBITRATOR'S AWARD IN
THIS CASE VIOLATES APPLICABLE LAW OR APPROPRIATE REGULATION. THE
COMPTROLLER GENERAL'S DECISION IN THE MATTER, B-192556, DECEMBER 4,
1978, IS SET FORTH BELOW.
THIS ACTION IS IN RESPONSE TO A REQUEST FROM THE FEDERAL LABOR
RELATIONS COUNCIL, DATED
JULY 26, 1978, FOR AN ADVANCE DECISION CONCERNING THE LEGALITY OF
IMPLEMENTING THE BACKPAY
AWARD OF AN ARBITRATOR IN THE MATTER OF AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL
1760 AND NORTHEASTERN PROGRAM SERVICE CENTER (WOLFF, ARBITRATOR),
FLRC NO. 77A-31. THE
ARBITRATOR FOUND THAT THE AGENCY, THE SOCIAL SECURITY ADMINISTRATION
(SSA), WAS NOT JUSTIFIED
IN DELAYING THE CAREER-LADDER PROMOTION OF AN EMPLOYEE, MR. WILLIAM
WILDER, AND THE ARBITRATOR
AWARDED HIM A RETROACTIVE PROMOTION WITH BACKPAY.
THE FLRC HAD INITIALLY, ON AUGUST 26, 1977, DENIED THE AGENCY'S
PETITION FOR REVIEW OF THE
AWARD BECAUSE IT FAILED TO MEET THE FLRC'S REQUIREMENTS FOR REVIEW
SET FORTH IN 5
C.F.R. 2411.32. SUBSEQUENT TO THE FLRC'S DENIAL OF REVIEW, WE ISSUED
A DECISION IN JANICE
LEVY, B-190408, DECEMBER 21, 1977, IN WHICH WE INVALIDATED AN
ARBITRATOR'S AWARD OF A
RETROACTIVE PROMOTION MADE UNDER SIMILAR CIRCUMSTANCES. BASED ON
THAT DECISION, THE SSA ASKED
THE FLRC TO RECONSIDER ITS DENIAL OF REVIEW IN THE PRESENT CASE. THE
FLRC GRANTED THE
AGENCY'S REQUEST FOR RECONSIDERATION AND ACCEPTED ITS PETITION FOR
REVIEW OF THE ARBITRATOR'S
AWARD. THE FLRC REQUESTS OUR DECISION AS TO WHETHER, IN LIGHT OF THE
DECISION IN JANICE LEVY,
SUPRA, THE ARBITRATOR'S AWARD IN THIS CASE VIOLATES APPLICABLE LAW OR
APPROPRIATE REGULATION.
THE FACTS IN THIS CASE ARE THAT THE GRIEVANT, MR. WILDER, WAS HIRED
BY SSA IN SEPTEMBER
1974, UNDER A TEMPORARY APPOINTMENT AS A CLAIMS REPRESENTATIVE
TRAINEE, GRADE GS-5. BECAUSE
MR. WILDER WAS A TEMPORARY EMPLOYEE, HE RECEIVED ONLY 3 WEEKS OF
TRAINING INSTEAD OF THE
NORMAL 12 WEEKS OF TRAINING, AND HE WAS THEN ASSIGNED TO A SSA BRANCH
OFFICE. ON MAY 27, 1975,
THE GRIEVANT WAS TRANSFERRED TO SSA'S NORTHEASTERN PROGRAM SERVICE
CENTER WHEN HE WAS GIVEN A
TERM APPOINTMENT AS A BENEFIT AUTHORIZER TRAINEE, GRADE GS-5. MR.
WILDER, ALONG WITH 13 OTHER
TRAINEES WHO WERE HIRED IN MAY 1975, THEN RECEIVED 7 WEEKS OF
SPECIALIZED TRAINING IN LIEU OF
THE 16-WEEK FORMALIZED TRAINING PROGRAM SINCE THE AGENCY WANTED TO
REDUCE THE BACKLOG OF CASES
IN A CERTAIN AREA.
IN SEPTEMBER 1975, MR. WILDER RECEIVED A WITHIN-GRADE INCREASE IN
GRADE GS-5 BUT HIS SUBSEQUENT REQUEST FOR A PROMOTION TO GRADE GS-7 WAS
DENIED BY THE AGENCY IN DECEMBER 1975 ON THE GROUND THAT HE HAD NOT
COMPLETED THE FULL RANGE OF FORMAL TRAINING NECESSARY FOR A
CAREER-LADDER PROMOTION. THE GRIEVANT AND THE OTHER TRAINEES WERE LATER
PROMOTED TO GRADE GS-7 IN JUNE 1976, BUT MR. WILDER FILED A GRIEVANCE
CONTENDING THAT HE WAS ENTITLED UNDER THE NEGOTIATED AGREEMENT TO A
CAREER-LADDER PROMOTION ON OCTOBER 12, 1975, THE PAY PERIOD FOLLOWING A
WITHIN-GRADE INCREASE.
THE ARBITRATOR FOUND THAT THE GRIEVANT AND THE OTHER TRAINEES HAD
BEEN PROMOTED IN JUNE 1976, WITHOUT RECEIVING FURTHER TRAINING, AND THAT
THE GRIEVANT WAS PERFORMING THE SAME WORK IN SEPTEMBER AND OCTOBER 1975,
AS HE WAS WHEN HE WAS PROMOTED IN JUNE 1976. BASED UPON THE EVIDENCE
BEFORE HIM, THE ARBITRATOR CONCLUDED THAT THE GRIEVANT WAS ELIGIBLE AND
QUALIFIED FOR PROMOTION TO GRADE GS-7 IN OCTOBER 1975. FURTHERMORE, THE
ARBITRATOR HELD THAT THE AGENCY WAS NOT JUSTIFIED IN DELAYING THE
GRIEVANT'S PROMOTION UNTIL THE OTHER TRAINEES WERE ELIGIBLE FOR
PROMOTION SINCE THE AGENCY'S FAILURE TO PROVIDE "THE FULL RANGE OF
TRAINING" VIOLATED ARTICLE 16 OF THE NEGOTIATED AGREEMENT WHICH
PROVIDES, IN PERTINENT PART, AS FOLLOWS:
"SECTION B. THE BUREAU SHALL CONTINUE TO PROVIDE EQUAL OPPORTUNITY
IN ITS PROMOTION
PROGRAM FOR ALL QUALIFIED EMPLOYEES AND WILL MAKE PROMOTIONS WITHOUT
DISCRIMINATION FOR ANY
NONMERIT REASON. * * * ."
THEREFORE, THE ARBITRATOR AWARDED THE GRIEVANT A PROMOTION
RETROACTIVE TO OCTOBER 12, 1975, WITH BACKPAY.
OUR OFFICE HAS HELD THAT AS A GENERAL RULE PERSONNEL ACTIONS MAY NOT
BE MADE RETROACTIVELY EFFECTIVE UNLESS CLERICAL OR ADMINISTRATIVE ERRORS
OCCURRED THAT (1) PREVENTED A PERSONNEL ACTIONS FROM TAKING EFFECT AS
ORIGINALLY INTENDED, (2) DEPRIVED AN EMPLOYEE OF A RIGHT GRANTED BY
STATUTE OR REGULATION, OR (3) WOULD RESULT IN THE FAILURE TO CARRY OUT A
NONDISCRETIONARY ADMINISTRATIVE REGULATION OR POLICY IF NOT ADJUSTED
RETROACTIVELY. 55 COMP.GEN. 42(1975); AND 54 ID. 888(1975). WE HAVE
ALSO RECOGNIZED THAT THESE EXCEPTIONS TO THE GENERAL RULE PROHIBITING
RETROACTIVELY EFFECTIVE PERSONNEL ACTIONS MAY CONSTITUTE UNJUSTIFIED OR
UNWARRANTED PERSONNEL ACTIONS UNDER THE BACK PAY ACT, 5 U.S.C. 5596, AND
MAY BE REMEDIED THROUGH AN AWARD OF BACKPAY.
IN CONSIDERING THE LEGALITY OF IMPLEMENTING ARBITRATION AWARDS
RELATING TO FEDERAL EMPLOYEES WHO ARE COVERED UNDER NEGOTIATED
LABOR-MANAGEMENT AGREEMENTS, WE HAVE HELD THAT THE PROVISIONS OF SUCH
AGREEMENTS MAY CONSTITUTE NONDISCRETIONARY AGENCY POLICIES IF CONSISTENT
WITH APPLICABLE LAWS AND REGULATIONS. 55 COMP.GEN. 42, SUPRA.
THEREFORE, WHERE AN ARBITRATOR FINDS THAT AN EMPLOYEE HAS BEEN DENIED OR
HAS LOST PAY OR ALLOWANCE WHICH IS THE RESULT OF AND WOULD NOT HAVE
OCCURRED BUT FOR THE VIOLATION OF THE NEGOTIATED AGREEMENT, THE BACK PAY
ACT AND THE IMPLEMENTING CIVIL SERVICE COMMISSION REGULATIONS CONTAINED
IN 5 C.F.R.PART 550, SUBPART H (1978), ARE THE APPROPRIATE AUTHORITIES
FOR COMPENSATING THE EMPLOYEE.
IN THE PRESENT CASE, THE QUESTION PRESENTED IS WHETHER THIS PROVISION
OF THE NEGOTIATED AGREEMENT CONSTITUTES A NONDISCRETIONARY AGENCY POLICY
SO AS TO SUPPORT AN AWARD OF A RETROACTIVE PROMOTION WITH BACKPAY. THE
ARBITRATOR HELD THAT THE AGENCY, BY DELAYING THE GRIEVANT'S PROMOTION
UNTIL THE OTHER TRAINEE EMPLOYEES WERE ELIGIBLE FOR PROMOTION, VIOLATED
"THE CONTRACTUAL 'EQUAL OPPORTUNITY' IN THE PROMOTION PROGRAM".
HOWEVER, THERE APPEARS TO BE NO AGENCY REGULATION NOR PROVISION IN THE
NEGOTIATED AGREEMENT WHICH MANDATES THAT EMPLOYEES RECEIVE CAREER-LADDER
PROMOTIONS WITHIN A CERTAIN TIME FRAME. IN FACT, THE AGENCY REGULATIONS
CLEARLY LEAVE PROMOTIONS TO THE NEXT HIGHEST LEVEL WITHIN THE DISCRETION
OF THE AGENCY AS EVIDENCED BY THE FOLLOWING EXCERPTS FROM THE SSA
REGULATIONS ON CAREER LADDER PROMOTIONS:
"TIMING AND INTENT
"ADVANCEMENT TO THE JOURNEYMAN LEVEL IS THE INTENT AND EXPECTATION IN
THE CAREER LADDER
SYSTEM. HOWEVER, PROMOTIONS WITHIN CAREER LADDERS ARE NEITHER
AUTOMATIC NOR MANDATORY. THERE
IS NO GUARANTEE THAT AN EMPLOYEE IN A CAREER LADDER WILL BE PROMOTED,
NOR A COMMITMENT THAT A
PROMOTION WILL BE MADE AT ANY SET TIME. PROMOTIONS WILL BE EFFECTED
AS THE EMPLOYEE'S
PERFORMANCE DEMONSTRATES READINESS TO ASSUME MORE DIFFICULT DUTIES AT
THE NEXT HIGHER LEVEL
AND AS OTHER LEGAL REQUIREMENTS (E.G., TIME-IN-GRADE) ARE MET.
"BASIS FOR PROMOTION
"TIME-IN-GRADE REQUIREMENTS ESTABLISH THE MINIMUM TIME WITHIN WHICH
CAREER PROMOTIONS MAY
BE MADE. THEY DO NOT, HOWEVER, CONSTITUTE A BASIS FOR PROMOTION.
PROMOTIONS WITHIN CAREER
LADDERS ARE TO BE MADE ONLY WHEN (1) THE EMPLOYEE HAS PERFORMED
SUCCESSFULLY AT THIS CURRENT
GRADE LEVEL AND (2) HIS PERFORMANCE INDICATES THAT HE IS READY FOR
ASSIGNMENTS AT A HIGHER
LEVEL AND ULTIMATELY CAN BE EXPECTED TO PERFORM AT THE JOURNEYMAN
LEVEL.
"MINIMUM TIME
"EMPLOYEES IN CAREER LADDERS WILL BE CONSIDERED FOR PROMOTION WHEN
THEY MEET TIME-IN-GRADE
REQUIREMENTS; THEY WILL BE PROMOTED ONLY AS THEY MEET ESTABLISHED
PROMOTION CRITERIA."
THE PROVISION IN THE NEGOTIATED AGREEMENT WHICH THE ARBITRATOR RELIED
UPON REQUIRES "EQUAL
OPPORTUNITY" IN THE PROMOTION PROGRAM, BUT THAT PROVISION DOES NOT
REQUIRE THE AGENCY TO MAKE
PROMOTIONS WITHIN ANY SPECIFIED TIME FRAME UNDER ANY STATED
CONDITIONS. THEREFORE, WE ARE
UNABLE TO CONCLUDE THAT THERE HAS BEEN A VIOLATION OF A
NONDISCRETIONARY AGENCY POLICY OR
REGULATION WHICH CONSTITUTES AN UNJUSTIFIED OR UNWARRANTED PERSONNEL
ACTION UNDER THE BACK PAY
ACT AND THUS ENTITLES THE GRIEVANT TO A RETROACTIVE PROMOTION WITH
BACKPAY.
THIS CASE IS CLEARLY DISTINGUISHABLE FROM PRIOR CASES WHICH HAVE BEEN
CONSIDERED BY OUR
OFFICE WHERE THE AGENCY AND THE UNION HAD AGREED UPON A SPECIFIC TIME
FRAME FOR PROMOTIONS
UNDER STATED CONDITIONS. SEE, FOR EXAMPLE 55 COMP.GEN. 427(1975);
55 ID. 42, SUPRA; 55
ID. 388, SUPRA; AND 54 ID. 403(1974). ON THE OTHER HAND, THIS CASE
IS QUITE SIMILAR TO OUR
RECENT DECISIONS IN JANICE LEVY, SUPRA, AND JOHN CAHILL, B-192455,
NOVEMBER 1, 1978, WHERE WE
HELD THAT NEGOTIATED AGREEMENT PROVISIONS REQUIRING CONSISTENT AND
EQUITABLE APPLICATION OF
MERIT PROMOTION PRINCIPLES OR EQUAL PAY FOR SUBSTANTIALLY EQUAL WORK
DO NOT CONSTITUTE
NONDISCRETIONARY AGENCY POLICIES WHICH REQUIRE AN AGENCY TO MAKE
PROMOTIONS AT ANY SPECIFIED
TIME OR UNDER SPECIFIED CRITERIA.
ACCORDINGLY, SINCE WE CONCLUDE THAT THERE HAS BEEN NO VIOLATION OF A
NONDISCRETIONARY
AGENCY POLICY OR REGULATION, WE HOLD THAT THE AWARD OF A RETROACTIVE
PROMOTION AND BACKPAY WAS
IMPROPER AND MAY NOT BE IMPLEMENTED.
WE HAVE BEEN INFORMALLY ADVISED THAT PAYMENT OF BACKPAY HAS BEEN MADE
TO MR. WILDER IN
SATISFACTION OF THE ARBITRATION AWARD. UNDER THE CIRCUMSTANCES OF
THIS CASE, WE BELIEVE THAT
THE OVERPAYMENTS OF BACKPAY WOULD BE SUBJECT TO WAIVER UNDER THE
PROVISIONS OF 5
U.S.C. 5584(1976) AND 4 C.F.R.PART 91(1978).
BASED ON THE FOREGOING DECISION OF THE COMPTROLLER GENERAL, WE FIND
THAT THE ARBITRATOR'S AWARD OF RETROACTIVE PROMOTION AND BACKPAY
VIOLATES APPLICABLE LAW AND APPROPRIATE REGULATION.
CONCLUSION
FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2411.37(B) OF THE
COUNCIL'S RULES OF PROCEDURE, WE MODIFY THE ARBITRATOR'S AWARD BY
STRIKING THAT PORTION OF THE AWARD WHICH DIRECTS THAT THE GRIEVANT BE
PROMOTED RETROACTIVELY AND BE MADE WHOLE FOR ANY LOSSES. /2/ AS SO
MODIFIED, THE AWARD IS SUSTAINED AND THE STAY IS VACATED.
BY THE COUNCIL.
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
ISSUED: DECEMBER 28, 1978
/1/ ACCORDING TO THE ARBITRATOR, ARTICLE 14, SECTION B OF THE
PARTIES' NEGOTIATED AGREEMENT PROVIDES:
THE PARTIES AGREE TO COOPERATE ACTIVELY AND POSITIVELY IN THEIR
EFFORTS TO CARRY OUT A PLAN
OF AFFIRMATIVE ACTION TO ACCOMPLISH EQUAL OPPORTUNITY FOR ALL
EMPLOYEES AND TO SEEK AND
ACHIEVE THE HIGHEST POTENTIAL AND PRODUCTIVITY IN EMPLOYMENT
SITUATIONS. THE BUREAU AGREES TO
PROVIDE ENCOURAGEMENT, ASSISTANCE, AND APPROPRIATE TRAINING
OPPORTUNITIES SO THAT ALL
EMPLOYEES MAY UTILIZE THEIR ABILITIES TO THE FULLEST EXTENT.
/2/ AS NOTED IN THE COMPTROLLER GENERAL'S DECISION, BACKPAY
OVERPAYMENTS MADE TO THE GRIEVANT IN THIS CASE WOULD APPEAR TO BE
SUBJECT TO WAIVER.
6 FLRC 1054; FLRC NO. 76A-147; DECEMBER 28, 1978.
DEPARTMENT OF STATE
PASSPORT OFFICE
CHICAGO PASSPORT AGENCY
CHICAGO, ILLINOIS
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3671
A/SLMR NO. 697, AS SUPPLEMENTED
BY A/SLMR NOS.929 AND 1108, FLRC
NO. 76A-147
DECISION ON APPEAL FROM
ASSISTANT SECRETARY'S DECISION AS SUPPLEMENTED
(SYNOPSIS) FLRC NO. 76A-147
DEPARTMENT OF STATE, PASSPORT OFFICE, CHICAGO PASSPORT AGENCY,
CHICAGO, ILLINOIS, A/SLMR NO. 697, AS SUPPLEMENTED BY A/SLMR NOS. 929
AND 1108. THIS APPEAL AROSE FROM A DECISION BY THE ASSISTANT SECRETARY,
SUBSEQUENTLY REAFFIRMED FOLLOWING THE COUNCIL'S REQUEST FOR FURTHER
CONSIDERATION AND CLARIFICATION, FINDING THAT A UNIT OF APPROXIMATELY 45
EMPLOYEES OF THE ACTIVITY SOUGHT BY THE UNION (AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3671) WAS APPROPRIATE FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION. THE COUNCIL ACCEPTED THE AGENCY'S
PETITION FOR REVIEW, CONCLUDING THAT THE ASSISTANT SECRETARY'S DECISION,
AS SUPPLEMENTED, PRESENTED A MAJOR POLICY ISSUE AS TO WHETHER THE
DECISION WAS CONSISTENT WITH AND PROMOTED THE PURPOSES AND POLICIES OF
THE ORDER, ESPECIALLY THOSE REFLECTED IN SECTION 10(B). (REPORT NO.
159)
COUNCIL ACTION (DECEMBER 28, 1978). FOR REASONS FULLY DETAILED IN
ITS DECISION, THE COUNCIL CONCLUDED THAT THE ASSISTANT SECRETARY'S
DECISION, AS SUPPLEMENTED, WAS INCONSISTENT WITH AND FAILED TO PROMOTE
THE PURPOSES AND POLICIES OF THE ORDER, PARTICULARLY THOSE REFLECTED IN
SECTION 10(B), AND FURTHER, THAT THE UNIT SOUGHT WAS NOT APPROPRIATE FOR
PURPOSES OF EXCLUSIVE RECOGNITION UNDER THE ORDER. ACCORDINGLY,
PURSUANT TO SECTION 2411.18(B) OF THE COUNCIL'S RULES OF PROCEDURE, THE
COUNCIL SET ASIDE THE ASSISTANT SECRETARY'S DECISION, AS SUPPLEMENTED,
AND REMANDED THE CASE FOR ACTION CONSISTENT WITH ITS DECISION.
BACKGROUND OF CASE
THIS CASE IS BEFORE THE COUNCIL ON THE AGENCY'S PETITION FOR REVIEW
OF THE ASSISTANT SECRETARY'S DECISION IN A/SLMR NO. 697, AS SUPPLEMENTED
IN A/SLMR NOS. 929 AND 1108 PURSUANT TO THE COUNCIL'S REQUEST FOR
FURTHER CONSIDERATION AND CLARIFICATION OF HIS INITIAL DECISION. IN HIS
DECISION, AS SUPPLEMENTED, THE ASSISTANT SECRETARY FOUND APPROPRIATE A
UNIT OF ALL (APPROXIMATELY 45) NONPROFESSIONAL PERMANENT, TEMPORARY AND
SEASONAL EMPLOYEES AT THE DEPARTMENT OF STATE, PASSPORT OFFICE, CHICAGO
PASSPORT AGENCY, CHICAGO, ILLINOIS (THE ACTIVITY).
MORE PARTICULARLY, THE ASSISTANT SECRETARY, IN HIS INITIAL DECISION,
FOUND THAT THE UNIT SOUGHT BY THE UNION (AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3671) IS APPROPRIATE FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE THREE CRITERIA SET FORTH IN
SECTION 10(B) OF THE ORDER, AND DIRECTED AN ELECTION IN SUCH UNIT. THE
ELECTION RESULTED IN THE UNION'S CERTIFICATION AS EXCLUSIVE
REPRESENTATIVE OF THE UNIT. THE AGENCY, ON BEHALF OF THE ACTIVITY,
PETITIONED THE COUNCIL FOR REVIEW OF THE ASSISTANT SECRETARY'S DECISION
AND REQUESTED A STAY. THE COUNCIL, BEFORE DETERMINING WHETHER TO ACCEPT
OR DENY THE AGENCY'S PETITION FOR REVIEW, DECIDED TO REQUEST
CLARIFICATION BY THE ASSISTANT SECRETARY OF THE DECISION IN A/SLMR NO.
697, IN LIGHT OF THE COUNCIL'S CONSOLIDATED DCASR DECISION WHICH HAD
BEEN ISSUED SUBSEQUENT TO A/SLMR NO. 697. /1/
THE ASSISTANT SECRETARY, FINDING THAT "THE RECORD DID NOT PROVIDE AN
ADEQUATE BASIS UPON WHICH TO MAKE AFFIRMATIVE DETERMINATIONS REGARDING
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS AS REQUIRED BY
THE COUNCIL," REMANDED THE CASE TO THE APPROPRIATE REGIONAL
ADMINISTRATOR FOR THE PURPOSE OF REOPENING THE RECORD TO SECURE
ADDITIONAL EVIDENCE RELATING TO THESE CRITERIA (A/SLMR NO. 929). IN HIS
SECOND SUPPLEMENTAL DECISION (A/SLMR NO. 1108), THE ASSISTANT SECRETARY,
UPON THE ENTIRE RECORD IN THIS CASE, REAFFIRMED THE PREVIOUS FINDING
THAT THE UNIT SOUGHT IS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION UNDER THE ORDER.
THE PERTINENT FACTUAL BACKGROUND HEREIN, BASED UPON THE FINDINGS OF
THE ASSISTANT SECRETARY, IS AS FOLLOWS: THE OVERALL MISSION OF THE
DEPARTMENT OF STATE PASSPORT OFFICE (PASSPORT OFFICE) IS TO ADMINISTER
LAWS RELATING TO NATIONALITY AND TO CONDUCT ALL PASSPORT ACTIVITIES.
THE SPECIFIC MISSION OF ITS FIELD AGENCIES IS TO PROVIDE PASSPORT
SERVICES TO PERSONS WITHIN THEIR ASSIGNED GEOGRAPHICAL AREAS. THE
PASSPORT OFFICE IS PART OF THE BUREAU OF SECURITY AND COUNSELOR AFFAIRS
IN THE DEPARTMENT OF STATE. IT HAS A NATIONAL OFFICE IN WASHINGTON,
D.C. AND TEN FIELD AGENCIES LOCATED THROUGHOUT THE UNITED STATES, ONE
OF WHICH IS THE ACTIVITY INVOLVED HEREIN. EACH FIELD AGENCY IS UNDER
THE DIRECTION OF AN AGENT-IN-CHARGE (AIC) WHO REPORTS DIRECTLY TO THE
DIRECTOR OF THE PASSPORT OFFICE.
THE PASSPORT OFFICE FIELD AGENCIES AND THE NATIONAL OFFICE ARE LINKED
TOGETHER BY A TELETYPE NETWORK AND CONTACT EACH OTHER AS NEEDED. WHILE
THERE IS NO EVIDENCE OF REGULAR TEMPORARY INTERCHANGE OF PERSONNEL AMONG
THE VARIOUS FIELD AGENCIES, DURING THE PAST NINE YEARS LATERAL TRANSFERS
INTO THE ACTIVITY INVOLVED HEREIN OCCURRED FREQUENTLY.
THE CLAIMED UNIT WITHIN THE ACTIVITY CONSISTS OF APPROXIMATELY 45
EMPLOYEES. /2/ THE SKILLS REQUIRED AND THE DUTIES PERFORMED BY THESE
EMPLOYEES ARE ESSENTIALLY THE SAME AS THOSE AT THE OTHER FIELD AGENCIES.
THESE PERSONNEL POLICIES ARE ESTABLISHED FOR ALL EMPLOYEES OF THE
AGENCY BY THE BUREAU OF PERSONNEL FOR THE DEPARTMENT OF STATE LOCATED AT
AGENCY HEADQUARTERS IN WASHINGTON, D.C. THE AGENCY'S BUREAU OF
PERSONNEL ALSO HAS FINAL ADMINISTRATIVE AUTHORITY OVER LABOR RELATIONS
MATTERS AND PERSONNEL ACTIONS INVOLVING PASSPORT OFFICE EMPLOYEES.
THUS, FINAL APPROVAL FOR PERSONNEL ACTIONS IS VESTED SOLELY WITHIN THE
BUREAU OF PERSONNEL IN WASHINGTON, D.C., WHILE AT THE ACTIVITY LEVEL THE
AIC IMPLEMENTS PERSONNEL POLICIES AND MAKES RECOMMENDATIONS ON PERSONNEL
ACTIONS WHICH ARE FORWARDED TO THE AGENCY'S BUREAU OF PERSONNEL FOR
APPROVAL. ON PERSONNEL MATTERS SUCH AS PROMOTIONS, OVERTIME, TRAVEL,
AWARDS, HIRING AT THE GS-7 LEVEL AND BELOW, FORMAL DISCIPLINE, LAYOFFS,
TRAINING, AND POSITION DESCRIPTIONS, THE ACTIVITY'S AIC FORWARDS HIS
RECOMMENDATIONS TO THE BUREAU OF PERSONNEL FOR APPROVAL AND THESE
RECOMMENDATIONS ARE GENERALLY ADOPTED.
WITH REGARD TO LABOR RELATIONS, SUCH POLICY IS ESTABLISHED FOR THE
ENTIRE PASSPORT OFFICE BY THE AGENCY'S DEPUTY UNDER-SECRETARY OF STATE
FOR MANAGEMENT. LABOR RELATIONS PERSONNEL, LOCATED IN THE BUREAU OF
PERSONNEL IN WASHINGTON, D.C., ARE AUTHORIZED TO HANDLE ALL LABOR
RELATIONS MATTERS FOR THE AGENCY'S PASSPORT OFFICE. NO LABOR RELATIONS
PERSONNEL ARE ASSIGNED TO, OR LOCATED AT, THE ACTIVITY.
FINALLY, WHILE LOCAL PERSONNEL PROBLEMS (SUCH AS WORK BREAKS, LUNCH
PERIODS, STARTING AND QUITTING TIMES AND PROCEDURES FOR ROTATING THE
DUTY OFFICER ASSIGNMENT) CAN BE RESOLVED AT THE ACTIVITY LEVEL, A
NATIONWIDE UNIT, AS INDICATED BY THE ASSISTANT SECRETARY, "WOULD RESULT
IN A UNIFORM POLICY NATIONALLY, AND THE POTENTIAL FOR INCONSISTENCIES
AMONG THE (A)CTIVITY LEVEL OFFICES WOULD BE LESS IN A UNIT STRUCTURE
WHICH FOLLOWED THE CENTRALIZED OPERATIONAL AND ORGANIZATIONAL STRUCTURE
OF THE (A)GENCY." /3/
AS ALREADY STATED, THE ASSISTANT SECRETARY, IN HIS DECISION AS
SUPPLEMENTED, FOUND THAT THE UNIT LIMITED TO THE 45 EMPLOYEES OF THE
CHICAGO FIELD AGENCY MET THE THREE CRITERIA OF SECTION 10(B) OF THE
ORDER AND THEREFORE WAS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION UNDER THE ORDER.
UPON CONSIDERATION OF THE AGENCY'S PETITION FOR REVIEW AND THE
SUPPLEMENT THERETO, THE COUNCIL DETERMINED THAT A MAJOR POLICY ISSUE IS
PRESENTED BY THE DECISION OF THE ASSISTANT SECRETARY AS SUPPLEMENTED,
NAMELY: WHETHER THE ASSISTANT SECRETARY'S DECISION IN THIS CASE IS
CONSISTENT WITH AND PROMOTES THE PURPOSES AND POLICIES OF THE ORDER,
ESPECIALLY THOSE REFLECTED IN SECTION 10(B). THE COUNCIL ALSO GRANTED
THE AGENCY'S REQUEST FOR A STAY. NEITHER OF THE PARTIES FILED A
SEPARATE BRIEF ON THE MERITS. INSTEAD, THE AGENCY RELIED UPON EARLIER
SUBMISSIONS TO THE COUNCIL IN SUPPORT OF ITS APPEAL, AND THE UNION
INCORPORATED BY REFERENCE AN EARLIER SUBMISSIONS TO THE COUNCIL IN
SUPPORT OF ITS APPEAL, AND THE UNION INCORPORATED BY REFERENCE AN
EARLIER SUBMISSION TO THE ASSISTANT SECRETARY AS ITS BRIEF BEFORE THE
COUNCIL. THE COUNCIL HAS CAREFULLY CONSIDERED THESE DOCUMENTS AS WELL AS
THE ENTIRE RECORD IN THE CASE IN READING ITS DECISION HEREIN.
OPINION
AS PREVIOUSLY INDICATED, THE ASSISTANT SECRETARY, UPON FURTHER
CONSIDERATION AND CLARIFICATION OF HIS INITIAL DECISION (A/SLMR NO. 697)
IN LIGHT OF THE CONSOLIDATED DCASR DECISION PURSUANT TO THE COUNCIL'S
REQUEST, FOUND THAT A UNIT OF ALL (APPROXIMATELY 45) NONPROFESSIONAL
PERMANENT, TEMPORARY, AND SEASONAL EMPLOYEES AT THE ACTIVITY WAS
APPROPRIATE FOR EXCLUSIVE RECOGNITION (A/SLMR NO. 1108). THE MAJOR
POLICY ISSUE RAISED HEREIN IS WHETHER THE INSTANT DECISION AS
SUPPLEMENTED IS CONSISTENT WITH AND PROMOTES THE PURPOSES AND POLICIES
OF THE ORDER, ESPECIALLY THOSE REFLECTED IN SECTION 10(B).
IN ITS CONSOLIDATED DCASR DECISION, THE COUNCIL SET FORTH AND
EXPLICATED CERTAIN PRINCIPLES WHICH FLOW FROM SECTION 10(B) OF THE
ORDER, AND, IN SO DOING, FURTHER EMPHASIZED THE DUAL OBJECTIVES OF
PREVENTING FURTHER FRAGMENTATION OF BARGAINING UNITS AS WELL AS REDUCING
EXISTING FRAGMENTATION, AS FOLLOWS (SUPRA N. 1, 4 FLRC 668 AT 677):
BEFORE THE ASSISTANT SECRETARY MAY FIND THAT A PROPOSED UNIT IS
APPROPRIATE FOR PURPOSES OF
EXCLUSIVE RECOGNITION UNDER THE ORDER, HE MUST MAKE AN AFFIRMATIVE
DETERMINATION THAT THE
PROPOSED UNIT SATISFIES EQUALLY EACH OF THE THREE CRITERIA CONTAINED
IN SECTION 10(B). THAT
IS, HE MUST CONSIDER EQUALLY THE EVIDENCE GOING TO EACH OF THE THREE
CRITERIA AND, AS REQUIRED
BY SECTION 10(B), FIND APPROPRIATE ONLY UNITS WHICH NOT ONLY ENSURE A
CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST BUT ALSO PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY
OPERATIONS. IN MAKING THE AFFIRMATIVE DETERMINATION THAT A PROPOSED
BARGAINING UNIT SATISFIES
EACH OF THE THREE CRITERIA, THE ASSISTANT SECRETARY MUST FIRST
DEVELOP AS COMPLETE A RECORD AS
POSSIBLE, SOLICITING EVIDENCE FROM THE PARTIES AS NECESSARY, AND THEN
GROUND HIS DECISION UPON
A CAREFUL, THOROUGH ANALYSIS OF SUBSIDIARY FACTORS OR EVIDENTIARY
CONSIDERATIONS WHICH PROVIDE
A SHARP DEGREE OF DEFINITION AND PRECISION TO EACH OF THE THREE
CRITERIA. FINALLY, AND MOST
IMPORTANTLY, THE ASSISTANT SECRETARY MUST MAKE THE NECESSARY
AFFIRMATIVE DETERMINATIONS THAT A
UNIT CLEARLY, CONVINCINGLY AND EQUALLY SATISFIES EACH OF THE 10(B)
CRITERIA IN RECOGNITION OF
AN IN A MANNER FULLY CONSISTENT WITH THE PURPOSES OF THE ORDER,
INCLUDING THE DUAL OBJECTIVES
OF PREVENTING FURTHER FRAGMENTATION OF BARGAINING UNITS AS WELL AS
REDUCING EXISTING
FRAGMENTATION, THEREBY PROMOTING A MORE COMPREHENSIVE BARGAINING UNIT
STRUCTURE.
MOREOVER, IN ITS LETTER REQUESTING CLARIFICATION OF THE ASSISTANT
SECRETARY'S INITIAL DECISION HEREIN, THE COUNCIL QUOTED AND DISCUSSED AT
LENGTH ITS CONSOLIDATED DCASR DECISION, THEREBY DIRECTING HIS ATTENTION
TO THE DETAILED PRINCIPLES SET FORTH THEREIN.
THE COUNCIL, REAFFIRMING THE PRINCIPLES ENUNCIATED IN THE
CONSOLIDATED DCASR DECISION FOR THE REASONS FULLY EXPLICATED BY THE
COUNCIL IN THAT DECISION, WHICH ARE EQUALLY APPLICABLE HEREIN, FINDS,
UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD IN THE INSTANT CASE,
THAT THE ASSISTANT SECRETARY'S DECISION AS SUPPLEMENTED IN THE INSTANT
CASE IS INCONSISTENT WITH AND FAILS TO PROMOTE THE PURPOSES AND POLICIES
OF THE ORDER, ESPECIALLY THOSE REFLECTED IN SECTION 10(B). THEREFORE,
THE COUNCIL FINDS THAT THE UNIT SOUGHT BY THE UNION IS NOT APPROPRIATE
FOR THE PURPOSES OF EXCLUSIVE RECOGNITION UNDER THE ORDER.
IN MORE DETAIL, THE COUNCIL IS OF THE OPINION THAT, WHILE THE
ASSISTANT SECRETARY MADE AN AFFIRMATIVE DETERMINATION THAT THE PROPOSED
UNIT SATISFIED EACH OF THE THREE APPROPRIATE UNIT CRITERIA CONTAINED IN
SECTION 10(B), HE DID NOT, "MOST IMPORTANTLY," MAKE HIS DETERMINATION
"IN RECOGNITION OF AND IN A MANNER FULLY CONSISTENT WITH THE PURPOSES OF
THE ORDER," SPECIFICALLY THE OBJECTIVE "OF PREVENTING FURTHER
FRAGMENTATION OF BARGAINING UNITS . . . , THEREBY PROMOTING A MORE
COMPREHENSIVE BARGAINING UNIT STRUCTURE."
THUS, THE ASSISTANT SECRETARY BASED HIS FINDING THAT THE 45 EMPLOYEES
IN THE UNIT SOUGHT "SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST
SEPARATE AND DISTINCT FROM ALL OTHER EMPLOYEES OF THE (A)GENCY" ON A
NUMBER OF SPECIFIC FACTORS, I.E., THAT "THE EMPLOYEES IN THE UNIT SOUGHT
SHARE A COMMON MISSION, COMMON SUPERVISION, COMMON WORKING CONDITIONS,
UNIFORM PERSONNEL AND LABOR RELATIONS POLICIES, ESSENTIALLY SIMILAR JOB
CLASSIFICATIONS AND, GENERALLY, DO NOT EXPERIENCE SIGNIFICANT
INTERCHANGE OR TRANSFER AMONG OTHER ORGANIZATIONAL COMPONENTS OF THE
(A)GENCY". HOWEVER, THE DECISION OF THE ASSISTANT SECRETARY FAILS
ADEQUATELY TO RECOGNIZE AND PROPERLY TO WEIGH THE FACTORS WHICH CLEARLY
DEMONSTRATE THE COMMUNITY OF INTEREST SHARED BY ALL EMPLOYEES IN THE
PASSPORT OFFICE. THUS, FOR EXAMPLE, AS TO THE ABOVE CONSIDERATIONS
EXPRESSLY RELIED UPON IN THE ASSISTANT SECRETARY'S DECISION, THE
SPECIFIC MISSION OF ALL THE FIELD AGENCIES WITHIN THE PASSPORT OFFICE IS
TO PROVIDE THE SAME PASSPORT SERVICES TO PERSONS WITHIN THEIR ASSIGNED
AREAS; THE SKILLS REQUIRED AND THE DUTIES PERFORMED BY THE 45 EMPLOYEES
IN THE UNIT SOUGHT AT THE ACTIVITY WERE ESSENTIALLY THE SAME AS THOSE AT
THE OTHER FIELD AGENCIES; PERSONNEL POLICIES AND PRACTICES ARE
CENTRALLY ESTABLISHED AND ADMINISTERED AT AGENCY HEADQUARTERS IN
WASHINGTON, D.C. AND APPLY UNIFORMLY TO ALL EMPLOYEES OF THE AGENCY, NOT
JUST TO THE 45 EMPLOYEES IN THE UNIT SOUGHT; LABOR RELATIONS POLICY
ALSO IS CENTRALLY ESTABLISHED FOR THE ENTIRE PASSPORT OFFICE AT
HEADQUARTERS IN WASHINGTON, D.C., WHERE ALL LABOR RELATIONS PERSONNEL
FOR THE AGENCY ARE LOCATED AND ARE AUTHORIZED TO HANDLE ALL LABOR
RELATIONS MATTERS FOR THE PASSPORT OFFICE; WHILE LOCAL PERSONNEL
PROBLEMS CAN BE RESOLVED AT THE ACTIVITY LEVEL, FINAL APPROVAL FOR
PERSONNEL ACTIONS IS VESTED SOLELY WITHIN THE AGENCY'S BUREAU OF
PERSONNEL IN WASHINGTON, D.C.; LATERAL TRANSFERS INTO THE ACTIVITY HAVE
OCCURRED REGULARLY OVER THE PAST NINE YEARS; AND A NATIONWIDE UNIT OF
ALL PASSPORT OFFICE EMPLOYEES, RATHER THAN THE UNIT SOUGHT, WOULD REDUCE
POTENTIAL INCONSISTENCIES AMONG THE ACTIVITY LEVEL OFFICES BY FOLLOWING
"THE CENTRALIZED OPERATIONAL AND ORGANIZATIONAL STRUCTURE OF THE
(A)GENCY." UNDER ALL OF THESE CIRCUMSTANCES, WE CONCLUDE THAT THE
FINDING OF A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST AMONG THE 45
ACTIVITY EMPLOYEES, SEPARATE AND DISTINCT FROM ALL OTHER AGENCY
EMPLOYEES, IS INCONSISTENT WITH THE PURPOSES AND POLICIES OF THE ORDER,
SPECIFICALLY THE POLICY IN SECTION 10(B) OF "PREVENTING FURTHER
FRAGMENTATION OF BARGAINING UNITS . . . , THEREBY PROMOTING A MORE
COMPREHENSIVE BARGAINING UNIT STRUCTURE."
SIMILARLY, THE ASSISTANT SECRETARY FOUND THAT THE PROPOSED UNIT
"WOULD PROMOTE EFFECTIVE DEALINGS WITHIN THE (A)GENCY" NOTWITHSTANDING
AN EXPRESSED RECOGNITION THAT A NUMBER OF FACTORS CONSIDERED IN THIS
REGARD (SUCH AS "THE LOCUS AND SCOPE OF PERSONNEL AUTHORITY, LIMITATIONS
ON THE NEGOTIATION OF MATTERS OF CRITICAL CONCERN TO EMPLOYEES AT THE
LEVEL OF THE PETITIONED FOR UNIT, THE AVAILABILITY OF NEGOTIATION
EXPERTISE, EXPERIENCE OF THIS (A)GENCY IN OTHER BARGAINING UNITS, AND
THE LEVEL AT WHICH LABOR RELATIONS POLICY IS SET IN THE (A)GENCY") WOULD
DEROGATE FROM A CONCLUSION AS TO THE APPROPRIATENESS OF A UNIT AT THE
ACTIVITY LEVEL. THUS, AS PREVIOUSLY STATED, THE ASSISTANT SECRETARY
FOUND, CONCERNING THE LOCUS AND SCOPE OF PERSONNEL AUTHORITY WITHIN THE
AGENCY, THAT THE BUREAU OF PERSONNEL LOCATED AT AGENCY HEADQUARTERS IN
WASHINGTON, D.C., ESTABLISHES AND ADMINISTERS COMMON PERSONNEL POLICIES
AND PRACTICES FOR ALL EMPLOYEES OF THE AGENCY AND ALSO RETAINS FINAL
APPROVAL AUTHORITY FOR PERSONNEL ACTIONS, THEREBY PLACING LIMITATIONS ON
THE NEGOTIATION OF MATTERS AT THE LOCAL LEVEL; THAT NEGOTIATING
EXPERTISE IS CONCENTRATED AT THE AGENCY HEADQUARTERS LEVEL, (WHERE LABOR
RELATIONS POLICY IS ESTABLISHED FOR THE ENTIRE PASSPORT OFFICE) AND
COMPLETELY LACKING AT THE ACTIVITY LEVEL, WHERE THERE ARE NO LABOR
RELATIONS PERSONNEL AND THERE HAS BEEN NO HISTORY OF COLLECTIVE
BARGAINING WITHIN THE PASSPORT OFFICE. IN LIGHT OF THESE FACTUAL
DETERMINATIONS, AND FOR THE REASONS PREVIOUSLY STATED, WE CONCLUDE THAT
THE FINDING THAT THE PROPOSED UNIT "WOULD PROMOTE EFFECTIVE DEALINGS
WITHIN THE AGENCY" IS INCONSISTENT WITH THE PURPOSES AND POLICIES OF THE
ORDER, FRAGMENTATION OF BARGAINING UNITS . . . , THEREBY PROMOTING A
MORE COMPREHENSIVE BARGAINING UNIT STRUCTURE."
FINALLY, "(W)ITH RESPECT TO EFFICIENCY OF AGENCY OPERATIONS . . . IF
THE PETITIONED FOR UNIT (WERE) FOUND APPROPRIATE," THE ASSISTANT
SECRETARY SPECIFICALLY RELIED UPON SUCH FACTORS AS: (1) TRAVEL COSTS
FOR THE AGENCY'S NEGOTIATING TEAM "COULD BE" LESS THAN FOR A NATIONWIDE
UNIT; (2) NO UNUSUAL LABOR RELATIONS TRAINING COSTS WOULD BE INCURRED;
(3) NO ADDITIONAL LABOR RELATIONS PERSONNEL WOULD BE REQUIRED; AND (4)
NO ALLEGATION WAS MADE BY THE AGENCY THAT TWO EXCLUSIVELY RECOGNIZED
BARGAINING UNITS LOCATED ELSEWHERE IN THE DEPARTMENT OF STATE "HAVE
FAILED TO PROMOTE THE EFFICIENCY OF ITS OPERATIONS." HOWEVER, IN
REACHING HIS FINAL CONCLUSION WITH RESPECT TO THE EFFICIENCY OF AGENCY
OPERATIONS, THE ASSISTANT SECRETARY FAILED TO ACCORD PROPER WEIGHT TO
HIS OWN ADDITIONAL FACTUAL DETERMINATIONS THAT (A) THE EMPLOYEES IN THE
UNIT SOUGHT ENJOY A COMMONALITY OF MISSION, PERSONNEL POLICIES AND
PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS WITH ALL EMPLOYEES OF
THE PASSPORT OFFICE, AND (B) "(A) NATIONWIDE UNIT . . . WHICH FOLLOWED
THE CENTRALIZED OPERATIONAL AND ORGANIZATIONAL STRUCTURE OF THE
(A)GENCY" WOULD "RESULT IN A UNIFORM POLICY NATIONALLY AND (REDUCE) THE
POTENTIAL FOR INCONSISTENCIES AMONG THE ACTIVITY LEVEL OFFICES. . . . "
AS THE COUNCIL STATED IN ITS CONSOLIDATED DCASR DECISION (SUPRA N. 1, 4
FLRC 668 AT 681):
AS TO "EFFICIENCY OF AGENCY OPERATIONS" AMONG THOSE FACTORS WHICH
SHOULD BE CONSIDERED
WOULD BE THE BENEFITS TO BE DERIVED FROM A UNIT STRUCTURE WHICH BEARS
SOME RATIONAL
RELATIONSHIP TO THE OPERATIONAL AND ORGANIZATIONAL STRUCTURE OF THE
AGENCY. . . . (T)HE
RELATIONSHIP BETWEEN THE PROPOSED BARGAINING UNIT AND THE OPERATIONAL
AND ORGANIZATIONAL
STRUCTURE OF THE AGENCY SHOULD BE GIVEN SUBSTANTIAL WEIGHT IN
ASCERTAINING WHETHER THE UNIT
WILL PROMOTE EFFICIENCY OF AGENCY OPERATIONS.
MOREOVER, THE ASSISTANT SECRETARY'S RELIANCE UPON THE ABSENCE OF AN
ALLEGATION BY THE AGENCY THAT EXISTING BARGAINING UNITS ELSEWHERE IN THE
AGENCY "HAVE FAILED TO PROMOTE THE EFFICIENCY OF ITS OPERATIONS" IS ALSO
INCONSISTENT WITH THE PRINCIPLES ENUNCIATED IN THE COUNCIL'S
CONSOLIDATED DCASR DECISION. THUS, AS THE COUNCIL STATED THEREIN (4
FLRC 668 AT 690):
(T)HE ASSISTANT SECRETARY MAY NOT RELY UPON "THE ABSENCE OF ANY
SPECIFIC COUNTERVAILING
EVIDENCE . . . AS TO A LACK OF EFFECTIVE DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS" IN
OTHER EXISTING BARGAINING UNITS TO MAKE AN AFFIRMATIVE FINDING
REGARDING THESE CRITERIA IN A
PROPOSED UNIT.
FINALLY, WITH REGARD TO THE OTHER FACTORS RELIED UPON BY THE
ASSISTANT SECRETARY IN CONNECTION WITH "EFFICIENCY OF AGENCY
OPERATIONS," ALL RELATING ESSENTIALLY TO THE IMPACT OF THE CLAIMED UNIT
ON AGENCY OPERATIONS IN TERMS OF COSTS, AS COMPARED TO THE IMPACT OF A
MORE COMPREHENSIVE UNIT, THE COUNCIL ALSO STATED IN ITS CONSOLIDATED
DCASR DECISION (4 FLRC 668 AT 686) THAT "MORE THAN COST FACTORS ARE
INVOLVED IN A DETERMINATION OF THE PROMOTION OF EFFICIENCY OF AGENCY
OPERATIONS. . . . " THUS, FOR EXAMPLE, AS PREVIOUSLY INDICATED (SUPRA
AT 6), THE ASSISTANT SECRETARY SHOULD HAVE GIVEN SUBSTANTIAL WEIGHT TO
THE ORGANIZATIONAL AND OPERATIONAL STRUCTURE OF THE AGENCY IN THIS
REGARD, BUT FAILED TO DO SO. ACCORDINGLY, IN LIGHT OF THESE
CONSIDERATIONS, AND FOR THE REASONS PREVIOUSLY STATED, WE CONCLUDE THAT
THE FINDING THAT THE PROPOSED UNIT WOULD PROMOTE THE EFFICIENCY OF THE
AGENCY'S OPERATIONS IS INCONSISTENT WITH THE PURPOSES AND POLICIES OF
THE ORDER, SPECIFICALLY THE POLICY REFLECTED IN SECTION 10(B) OF
"PREVENTING FURTHER FRAGMENTATION OF BARGAINING UNITS . . . , THEREBY
PROMOTING A MORE COMPREHENSIVE BARGAINING UNIT STRUCTURE."
IN CONCLUSION, UNDER ALL OF THE CIRCUMSTANCES IN THIS CASE, IT IS THE
COUNCIL'S OPINION THAT THE INSTANT DECISION OF THE ASSISTANT SECRETARY
AS SUPPLEMENTED IN INCONSISTENT WITH AND FAILS TO PROMOTE THE PURPOSES
AND POLICIES OF THE ORDER, PARTICULARLY THOSE REFLECTED IN SECTION
10(B), AND FURTHER, THAT THE UNIT SOUGHT IS NOT APPROPRIATE FOR PURPOSES
OF EXCLUSIVE RECOGNITION UNDER THE ORDER. /4/
CONCLUSION
FOR THE REASONS SET FORTH ABOVE, AND PURSUANT TO SECTION 2411.18(B)
OF THE COUNCIL'S RULES OF PROCEDURE, WE SET ASIDE THE ASSISTANT
SECRETARY'S DECISION AS SUPPLEMENTED AND REMAND THE CASE FOR ACTION
CONSISTENT WITH OUR DECISION HEREIN.
BY THE COUNCIL.
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
ISSUED: DECEMBER 28, 1978
/1/ DEFENSE SUPPLY AGENCY, DEFENSE CONTRACT ADMINISTRATION SERVICES
REGION (DCASR), SAN FRANCISCO, CALIFORNIA, DEFENSE CONTRACT
ADMINISTRATION SERVICES DISTRICT (DCASD), SALT LAKE CITY, UTAH, A/SLMR
NO. 461, FLRC NO. 75A-14; DEFENSE SUPPLY AGENCY, DEFENSE CONTRACT
ADMINISTRATION SERVICES REGION, SAN FRANCISCO, A/SLMR NO. 559, FLRC NO.
75A-128; AND DEFENSE SUPPLY AGENCY, DEFENSE CONTRACT ADMINISTRATION
SERVICES REGION (DCASR), SAN FRANCISCO, DEFENSE CONTRACT ADMINISTRATION
SERVICES DISTRICT (DCASD), SEATTLE, WASHINGTON, A/SLMR NO. 564, FLRC NO.
76A-4 (4 FLRC 668 (DEC. 30, 1976), REPORT NO. 119).
/2/ ACCORDING TO THE RECORD, AS OF JANUARY 1978, THE TOTAL STRENGTH
OF THE FIELD AGENCIES AND THE NATIONAL HEADQUARTERS WAS 868 ON-BOARD
PERMANENT AND TEMPORARY EMPLOYEES.
/3/ THE RECORD IS UNCLEAR AS TO THE IMPACT OF THE CLAIMED UNIT ON
AGENCY OPERATIONS IN TERMS OF COST, PRODUCTIVITY AND USE OF RESOURCES,
AS COMPARED TO THE IMPACT OF A MORE COMPREHENSIVE UNIT.
/4/ SEE ALSO 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. 687, 5 FLRC 631 (FLRC NO. 76A-97 (JULY 20, 1977),
REPORT NO. 131).
6 FLRC 1049; FLRC NO. 78A-132; DECEMBER 22, 1978.
(SYNOPSIS) FLRC NO. 78A-132
MARSHALL SPACE FLIGHT CENTER, MARSHALL SPACE FLIGHT CENTER, ALABAMA,
A/SLMR NO. 1060. THE ASSISTANT SECRETARY, UPON AN APPLICATION FOR
DECISION ON GRIEVABILITY OR ARBITRABILITY FILED BY THE UNION (LOCAL 27,
MARSHALL ENGINEERS AND SCIENTISTS ASSOCIATION, IFPTE), FOUND, BY
DECISION OF JUNE 8, 1978, THAT THE MATTER IN DISPUTE WAS GRIEVABLE AND
ARBITRABLE. SUBSEQUENTLY, IN RESPONSE TO A REQUEST FROM THE UNION FOR
ASSISTANCE REGARDING COMPLIANCE, THE ASSISTANT SECRETARY, BY DECISION OF
AUGUST 25, 1978, CONCLUDED THAT FULL COMPLIANCE WITH HIS EARLIER
DECISION COULD BE ACHIEVED ONLY BY SUBMITTING ALL UNRESOLVED ARBITRABLE
ISSUES RAISED BY THE SUBJECT GRIEVANCE TO AN ARBITRATOR IN A SINGLE
PROCEEDING. THE AGENCY (NASA) FILED AN APPEAL WITH THE COUNCIL ON
SEPTEMBER 26, 1978, SEEKING REVIEW OF THE ASSISTANT SECRETARY'S
DECISIONS OF JUNE 8 AND AUGUST 25, 1978. THE AGENCY ALSO REQUESTED A
STAY.
COUNCIL ACTION (DECEMBER 22, 1978). THE COUNCIL HELD THAT TO THE
EXTENT THE AGENCY'S PETITION SOUGHT REVIEW OF THE ASSISTANT SECRETARY'S
DECISION OF JUNE 8, 1978, THE PETITION WAS UNTIMELY FILED; AND TO THE
EXTENT THAT IT SOUGHT REVIEW OF HIS DECISION OF AUGUST 25, 1978,
REGARDING COMPLIANCE, IT DID NOT MEET THE REQUIREMENTS OF SECTION
2411.12 OF THE COUNCIL'S RULES OF PROCEDURE. ACCORDINGLY, THE COUNCIL
DENIED THE AGENCY'S PETITION FOR REVIEW. THE COUNCIL LIKEWISE DENIED
THE AGENCY'S REQUEST FOR A STAY.
DECEMBER 22, 1978
MR. S. NEIL HOSENBALL
GENERAL COUNSEL
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
400 MARYLAND AVENUE, SW.
WASHINGTON, D.C. 20546
RE: MARSHALL SPACE FLIGHT CENTER, MARSHALL
SPACE FLIGHT CENTER, ALABAMA, A/SLMR
NO. 1060, FLRC NO. 78A-132
DEAR MR. HOSENBALL:
THE COUNCIL HAS CAREFULLY CONSIDERED THE AGENCY'S PETITION FOR REVIEW
AND REQUEST FOR A STAY IN THE ABOVE-ENTITLED CASE, WHICH YOU FILED WITH
THE COUNCIL ON SEPTEMBER 26, 1978.
IN THIS CASE, AS FOUND BY THE ASSISTANT SECRETARY, THE ACTIVITY
(MARSHALL SPACE FLIGHT CENTER) AND THE UNION (MARSHALL ENGINEERS AND
SCIENTISTS ASSOCIATION, LOCAL 27, INTERNATIONAL FEDERATION OF
PROFESSIONAL AND TECHNICAL ENGINEERS) ARE PARTIES TO A COLLECTIVE
BARGAINING AGREEMENT CONTAINING A NEGOTIATED GRIEVANCE PROCEDURE.
PURSUANT TO THAT PROCEDURE, THE UNION FILED A GRIEVANCE ALLEGING
VIOLATIONS OF VARIOUS PROVISIONS OF THE PARTIES' AGREEMENT IN THE
FILLING OF TWO SUPERVISORY POSITIONS BY THE ACTIVITY. THE ACTIVITY
REJECTED THE UNION'S GRIEVANCE ON THE GROUND THAT THE POSITIONS IN
QUESTION WERE OUTSIDE THE BARGAINING UNIT. THE UNION THEN FILED AN
APPLICATION FOR DECISION ON GRIEVABILITY OR ARBITRABILITY WITH THE
ASSISTANT SECRETARY.
THE ASSISTANT SECRETARY, BY DECISION OF JUNE 8, 1978; ADOPTING THE
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW
JUDGE, FOUND "THAT THE ISSUE RAISED BY THE GRIEVANCE HEREIN CONCERNING
WHETHER CERTAIN PROVISIONS OF THE NEGOTIATED AGREEMENT ARE APPLICABLE TO
SUPERVISORY POSITIONS INVOLVES A QUESTION OF INTERPRETATION AND
APPLICATION OF THE NEGOTIATED AGREEMENT AND, THEREFORE, IS GRIEVABLE AND
ARBITRABLE." THE ASSISTANT SECRETARY THEN FOUND THAT THE UNION'S
GRIEVANCE WAS "SUBJECT TO THE GRIEVANCE AND ARBITRATION PROCEDURES UNDER
THE TERMS OF THE PARTIES' NEGOTIATED AGREEMENT," AND ORDERED THE
ACTIVITY TO COMPLY WITH THAT FINDING.
IT APPEARS THAT THEREAFTER A DISAGREEMENT AROSE BETWEEN THE PARTIES
AS TO WHAT CONSTITUTED FULL COMPLIANCE WITH THE ASSISTANT SECRETARY'S
DECISION. BY LETTER OF JUNE 15, 1978, THE ACTIVITY ADVISED THE UNION
THAT IT WAS AT THAT TIME PREPARED TO SUBMIT TO ARBITRATION ONLY THE
ISSUE OF "WHETHER CERTAIN PROVISIONS OF THE NEGOTIATED AGREEMENT ARE
APPLICABLE TO SUPERVISORY POSITIONS"; AND THAT IN THE EVENT THAT THE
ARBITRATOR RESOLVED THAT THRESHOLD ISSUE IN FAVOR OF THE UNION, THE
UNION'S GRIEVANCE WOULD BE REMANDED TO THE PARTIES FOR SEPARATE
PROCESSING ON ITS MERITS UNDER THE TERMS OF THEIR AGREEMENT. THE
UNION'S POSITION WAS THAT THE THRESHOLD ISSUE HAD ALREADY BEEN DECIDED
BY THE ASSISTANT SECRETARY IN FAVOR OF THE UNION AND THAT FULL
COMPLIANCE WITH THE ASSISTANT SECRETARY'S DECISION REQUIRED SUBMISSION
OF THE GRIEVANCE TO ARBITRATION FOR RESOLUTION ON ITS MERITS.
SUBSEQUENTLY, THE UNION SOUGHT THE ASSISTANCE OF THE ASSISTANT
SECRETARY WITH RESPECT TO THE COMPLIANCE MATTER. THE ASSISTANT
SECRETARY RESPONDED BY LETTER OF AUGUST 25, 1978, REITERATING THE
FINDINGS SET FORTH IN HIS JUNE 8, 1978, DECISION, AND STATING:
IN MY OPINION, WHERE, AS HERE, A THRESHOLD ISSUE HAS BEEN FOUND TO BE
ARBITRABLE AS WELL AS
THE MERITS OF A PARTICULAR GRIEVANCE, IT WILL EFFECTUATE THE PURPOSES
AND POLICIES OF THE
EXECUTIVE ORDER TO SUBMIT ALL UNRESOLVED ARBITRABLE ISSUES (BOTH
THRESHOLD ISSUES AND THE
MERITS OF THE GRIEVANCE) TO AN ARBITRATOR IN A SINGLE PROCEEDING.
THIS WILL PROMOTE THE
EXPEDITIOUS RESOLUTION OF THE GRIEVANCE INVOLVED BY PERMITTING THE
ARBITRATOR TO RESOLVE THE
MERITS OF THE GRIEVANCE IF HE CONCLUDES WITH RESPECT TO THE THRESHOLD
ISSUE THAT THE
NEGOTIATED AGREEMENT COVERS SUCH GRIEVANCE. IN MY VIEW, THE
PROMOTION OF THE EXPEDITIOUS
RESOLUTION OF AN ENTIRE GRIEVANCE IN ONE PROCEEDING IS CONSISTENT
WITH THE POLICY OF THE ORDER
TO ENCOURAGE THE SPEEDY RESOLUTION OF LABOR-MANAGEMENT RELATIONS
DISPUTES AND TO AVOID THE
PROLIFERATION OF ISSUES IN MULTIPLE PROCEEDINGS.
THE ASSISTANT SECRETARY CONCLUDED BY FINDING THAT "FULL COMPLIANCE IN
THIS MATTER CAN BE ACHIEVED ONLY BY SUBMITTING ALL UNRESOLVED ARBITRABLE
ISSUES RAISED BY THE INSTANT GRIEVANCE TO AN ARBITRATOR IN A SINGLE
PROCEEDING."
IN YOUR APPEAL TO THE COUNCIL ON BEHALF OF THE AGENCY; YOU SEEK
"REVIEW OF THE FINDING AND ORDER RENDERED . . . JUNE 8, 1978, AND AUGUST
25, 1978, BY THE ASSISTANT SECRETARY." YOU THEN CONTEND THAT SUCH
DECISION WAS "ARBITRARY AND CAPRICIOUS IN HOLDING THAT THE MERITS OF THE
SUBJECT GRIEVANCE ARE ARBITRABLE," AND THAT THE DECISION "PRESENTS A
MAJOR POLICY ISSUE IN THAT THE ASSISTANT SECRETARY HAS EXPANDED HIS
RESPONSIBILITIES IN GRIEVABILITY/ARBITRABILITY DETERMINATIONS UNDER (THE
ORDER). . . . "
AS TO YOUR APPEAL FROM THE JUNE 8, 1978, DECISION OF THE ASSISTANT
SECRETARY, YOU ASSERT THAT THE ASSISTANT SECRETARY MODIFIED HIS DECISION
OF JUNE 8, 1978, BY HIS ACTION OF AUGUST 25, 1978, AND, IN EFFECT,
THEREFORE, THAT YOUR APPEAL IS TIMELY WITH RESPECT TO THE EARLIER
DECISION. WE CANNOT AGREE WITH YOUR ASSERTION. IN HIS ACTION OF AUGUST
25, 1978, THE ASSISTANT SECRETARY MERELY REITERATED THE FINDINGS SET
FORTH IN HIS DECISION OF JUNE 8, 1978, AND PROVIDED INFORMATION, ALONG
WITH RATIONALE, AS TO THE MANNER IN WHICH FULL COMPLIANCE WITH THAT
DECISION SHOULD BE ACHIEVED. THUS, THE ASSISTANT SECRETARY'S
POST-DECISION ACTION OF AUGUST 25, 1978, DID NOT MATERIALLY CHANGE HIS
DECISION OF JUNE 8, 1978, BUT, RATHER, CONSTITUTED A SEPARATE AND
DISTINCT ACTION CONFINED TO THE ISSUE OF COMPLIANCE.
THEREFORE, TO THE EXTENT THAT YOUR PETITION SEEKS REVIEW OF THE
ASSISTANT SECRETARY'S DECISION OF JUNE 8, 1978, SUCH PETITION WAS
UNTIMELY FILED UNDER THE COUNCIL'S RULES OF PROCEDURE AND CANNOT BE
ACCEPTED FOR REVIEW. THE ASSISTANT SECRETARY'S DECISION OF JUNE 8,
1978, WAS SERVED UPON THE PARTIES BY MAIL ON THAT SAME DATE.
CONSEQUENTLY, UNDER SECTIONS 2411.13(B) AND 2411.45(A) AND (C) OF THE
COUNCIL'S RULES OF PROCEDURE, ANY APPEAL FROM THAT DECISION WAS DUE IN
THE OFFICE OF THE COUNCIL ON JULY 13, 1978. HOWEVER, AS STATED ABOVE,
THE AGENCY'S APPEAL WAS NOT FILED WITH THE COUNCIL UNTIL SEPTEMBER 26,
1978, OR MORE THAN 2 MONTHS LATE, AND NO EXTENSION OF TIME FOR SUCH
FILING WAS REQUESTED BY THE AGENCY OR GRANTED BY THE COUNCIL.
ACCORDINGLY, TO THE EXTENT THAT THE AGENCY'S PETITION SEEKS COUNCIL
REVIEW OF THE ASSISTANT SECRETARY'S DECISION OF JUNE 8, 1978, THE
PETITION IS HEREBY DENIED AS UNTIMELY FILED.
TO THE EXTENT THAT YOUR PETITION SEEKS REVIEW OF THE ASSISTANT
SECRETARY'S SEPARATE DECISION OF AUGUST 25, 1978, REGARDING COMPLIANCE,
THE PETITION DOES NOT MEET THE REQUIREMENTS FOR REVIEW SET FORTH IN
SECTION 2411.12 OF THE COUNCIL'S RULES OF PROCEDURE; THAT IS, THE
DECISION OF THE ASSISTANT SECRETARY REGARDING COMPLIANCE DOES NOT APPEAR
ARBITRARY AND CAPRICIOUS OR PRESENT A MAJOR POLICY ISSUE.
SECTION 6(B) OF THE ORDER CONFERS CONSIDERABLE DISCRETION ON THE
ASSISTANT SECRETARY, WHO "MAY REQUIRE AN AGENCY OR A LABOR ORGANIZATION
. . . TO TAKE SUCH AFFIRMATIVE ACTION AS HE CONSIDERS APPROPRIATE TO
EFFECTUATE THE POLICIES OF (THE) ORDER." THE COUNCIL HAS PREVIOUSLY HELD
THAT THE AUTHORITY OF THE ASSISTANT SECRETARY TO ISSUE ORDERS INCLUDES
THE AUTHORITY TO INTERPRET THOSE ORDERS. SEE, DEPARTMENT OF THE NAVY,
NAVAL PLANT REPRESENTATIVE OFFICE, BALTIMORE, MARYLAND, 3 FLRC 529 (FLRC
NO. 75A-59 (AUG. 14, 1975), REPORT NO. 80). IN THE COUNCIL'S OPINION,
IT DOES NOT APPEAR THAT THE ASSISTANT SECRETARY ACTED WITHOUT REASONABLE
JUSTIFICATION IN THE CIRCUMSTANCES OF THIS CASE WHEN, IN RESPONSE TO THE
UNION'S REQUEST, HE RULED THAT FULL COMPLIANCE WITH HIS JUNE 8, 1978,
DECISION MEANT THAT THE ISSUES HE HAD FOUND ARBITRABLE SHOULD BE
SUBMITTED TOGETHER TO ARBITRATION FOR RESOLUTION IN A SINGLE PROCEEDING.
MOREOVER, AS TO THE ALLEGED MAJOR POLICY ISSUE, IT DOES NOT APPEAR THAT
THE ASSISTANT SECRETARY THEREBY EXCEEDED THE SCOPE OF HIS AUTHORITY
UNDER SECTION 6(B) OF THE ORDER OR THAT HIS COMPLIANCE RULING OTHERWISE
PRESENTS A MAJOR POLICY ISSUE WARRANTING COUNCIL REVIEW.
SINCE THE ASSISTANT SECRETARY'S DECISION OF AUGUST 25, 1978,
REGARDING COMPLIANCE DOES NOT APPEAR ARBITRARY AND CAPRICIOUS AND DOES
NOT PRESENT ANY MAJOR POLICY ISSUE, TO THE EXTENT THAT THE AGENCY'S
PETITION SEEKS COUNCIL REVIEW OF THAT DECISION, THE PETITION FAILS TO
MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED UNDER SECTION 2411.12 OF
THE COUNCIL'S RULES OF PROCEDURE, AND IS HEREBY DENIED. THE AGENCY'S
REQUEST FOR A STAY IS LIKEWISE DENIED.
BY THE COUNCIL.
SINCERELY,
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
CC: A/SLMR
LABOR
J. E. LYONS
MESA/IFPTE
6 FLRC 1043; FLRC NO. 78A-78; DECEMBER 22, 1978
(SYNOPSIS) FLRC NO. 78A-78
INTERNAL REVENUE SERVICE, ATLANTA SERVICE CENTER AND NATIONAL
TREASURY EMPLOYEES UNION, CHAPTER 70 (FORSYTHE, ARBITRATOR). THE
ARBITRATOR FOUND THAT A WARNING LETTER OF INEFFICIENCY GIVEN THE
GRIEVANT WAS GRIEVABLE UNDER THE NEGOTIATED AGREEMENT, AND THAT, IN THE
FACTS OF THE CASE, THE LETTER SHOULD NOT BE PERMANENTLY CONTAINED IN THE
GRIEVANT'S PERSONNEL FILE. AS AN AWARD, THE ARBITRATOR DIRECTED THAT
THE LETTER BE REMOVED FROM THE GRIEVANT'S PERSONNEL FILE. THE AGENCY
APPEALED TO THE COUNCIL, REQUESTING THAT THE COUNCIL ACCEPT ITS PETITION
FOR REVIEW OF THE ARBITRATOR'S AWARD BASED ON TWO EXCEPTIONS, CONTENDING
(1) THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY, AND (2) THAT THE AWARD
DID NOT DRAW ITS ESSENCE FROM THE AGREEMENT. THE AGENCY ALSO REQUESTED
A STAY OF THE ARBITRATOR'S AWARD.
COUNCIL ACTION (DECEMBER 22, 1978). THE COUNCIL HELD THAT THE
AGENCY'S PETITION FOR REVIEW FAILED TO DESCRIBE FACTS AND CIRCUMSTANCES
TO SUPPORT ITS EXCEPTIONS. 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
ALSO DENIED THE AGENCY'S REQUEST FOR A STAY.
DECEMBER 22, 1978
MR. MORRIS A. SIMMS
DIRECTOR OF PERSONNEL
DEPARTMENT OF THE TREASURY
WASHINGTON, D.C. 20220
RE: INTERNAL REVENUE SERVICE, ATLANTA
SERVICE CENTER AND NATIONAL TREASURY
EMPLOYEES UNION, CHAPTER 70 (FORSYTHE,
ARBITRATOR), FLRC NO. 78A-78
DEAR MR. SIMMS:
THE COUNCIL HAS CAREFULLY CONSIDERED THE AGENCY'S PETITION FOR REVIEW
AND REQUEST FOR STAY OF THE ARBITRATOR'S AWARD, AND THE UNION'S
OPPOSITION THERETO, FILED IN THE ABOVE-ENTITLED CASE.
ACCORDING TO THE ARBITRATOR'S AWARD AND THE RECORD BEFORE THE
COUNCIL, THE DISPUTE IN THIS MATTER AROSE WHEN THE GRIEVANT, A WAE (WHEN
ACTUALLY EMPLOYED) DATA TRANSCRIBER AT THE IRS ATLANTA SERVICE CENTER
(THE ACTIVITY), WAS GIVEN A WARNING LETTER OF INEFFICIENCY WHICH GAVE
HER SIXTY DAYS TO IMPROVE HER WORK PERFORMANCE. THE GRIEVANCE RESULTING
IN THE INSTANT ARBITRATION AROSE AS A RESULT OF THE GRIEVANT'S
ALLEGATION THAT THE WARNING LETTER WAS NOT ISSUED PURSUANT TO THE PROPER
PROCEDURES.
THE ISSUES BEFORE THE ARBITRATOR AS STIPULATED BY THE PARTIES WERE AS
FOLLOWS:
(1) WHETHER THE WARNING LETTER OF INEFFICIENCY GIVEN THE GRIEVANT IS
GRIEVABLE UNDER THE
AGREEMENT PURSUANT TO ARTICLE 8, SECTION 1(A)(.) /1/
(2) IF THE WARNING LETTER OF INEFFICIENCY IS GRIEVABLE AS AN
EVALUATION OF PERFORMANCE
PURSUANT TO ARTICLE 8, SECTION 1(A) WHETHER IT WAS WARRANTED UNDER
THE CIRCUMSTANCES OF THIS
CASE.
WITH RESPECT TO THE FIRST ISSUE OF WHETHER THE WARNING LETTER OF
INEFFICIENCY WAS GRIEVABLE UNDER THE AGREEMENT, THE UNION TOOK THE
POSITION BEFORE THE ARBITRATOR THAT A LETTER OF INEFFICIENCY IS AN
EVALUATION OF PERFORMANCE PURSUANT TO ARTICLE 8, SECTION 1(A) OF THE
AGREEMENT AND, THEREFORE, AN EMPLOYEE HAS A RIGHT TO GRIEVE SUCH A
LETTER AS AN EVALUATION WHEN SUCH EVALUATION IS COMPLETED. THE AGENCY'S
POSITION ESSENTIALLY WAS THAT THE WARNING LETTER WAS A "NARRATIVE
RECORDATION" RESULTING FROM COUNSELING RATHER THAN AN EVALUATION OF
PERFORMANCE, AND, AS SUCH, WAS NOT SUBJECT TO THE NEGOTIATED GRIEVANCE
PROCEDURE IN ACCORDANCE WITH ARTICLE 8, SECTION 1(C) OF THE NEGOTIATED
AGREEMENT.
THE ARBITRATOR, IN ADDRESSING THE FIRST ISSUE AND FINDING THE MATTER
TO BE GRIEVABLE, STATED IN PART AS FOLLOWS:
. . . THERE ARE DIFFERENCES BETWEEN A NARRATIVE RECORDATION AND A
WARNING LETTER OF
INEFFICIENCY. . . .
THE SIXTY DAY LETTER THEN IS ONE WHICH IN INDUSTRIAL RELATIONS IS
REGARDED AS A PART OF
"PROGRESSIVE DISCIPLINE" AND AN OPPORTUNITY TO GIVE AN EMPLOYEE AN
OPPORTUNITY TO CORRECT HIS
OR HER BEHAVIOR OR TO QUESTION THE CONTENTS THEREOF. THIS ARBITRATOR
IS MINDFUL THAT HE IS
DEALING ONLY WITH THE AGREEMENT BETWEEN THIS AGENCY AND THE NTEU BUT
MAKES THE ABOVE
OBSERVATION AS A PART OF INTENT WHICH MUST BE REALIZED FOR ANY
SUCCESSFUL INVOLVEMENT IN
EMPLOYER-EMPLOYEE RELATIONS, AND THIS THEN IS A GRIEVABLE MATTER.
THE ARBITRATOR WENT ON TO FIND THAT, IN THE FACTS OF THIS CASE, THE
LETTER SHOULD NOT BE PERMANENTLY CONTAINED IN THE GRIEVANT'S PERSONNEL
FILE AND AWARDED AS FOLLOWS:
THE UNION'S REQUEST IN THE CASE OF (THE GRIEVANT) IS GRANTED, TO THE
EXTENT THAT THE LETTER
OF INEFFICIENCY SHOULD BE REMOVED FROM HER PERSONNEL FILE.
THE AGENCY'S PETITION SEEKS COUNCIL REVIEW OF THE AWARD ON THE BASIS
OF THE TWO EXCEPTIONS DISCUSSED BELOW. THE UNION 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."
IN ITS FIRST EXCEPTION, THE AGENCY CONTENDS THAT THE ARBITRATOR
EXCEEDED HIS AUTHORITY. IN SUPPORT OF THIS EXCEPTION, THE AGENCY ASSERTS
THAT THE ARBITRATOR'S REFERENCE TO DISCIPLINE IN THE DISCUSSION
ACCOMPANYING HIS AWARD INDICATES THAT THE ARBITRATOR FAILED TO ADDRESS
THE ISSUE SUBMITTED BY THE PARTIES WHICH INVOLVED PERFORMANCE EVALUATION
AND THAT, IN FACT, THE ARBITRATOR BASED HIS AWARD ON DISCIPLINE, AN
ISSUE NOT SUBMITTED TO HIM. THE AGENCY CONCLUDES THAT, BY SO BASING HIS
DECISION, THE ARBITRATOR EXCEEDED HIS AUTHORITY BY DETERMINING AN ISSUE
NOT SUBMITTED TO ARBITRATION, AND BY FAILING TO DECIDE THE ISSUE
SUBMITTED; AND, FURTHER, BY VIOLATING THE RESTRICTION ON HIS AUTHORITY
AS SET FORTH IN THE SUBMISSION AGREEMENT AND THE PARTIES' NEGOTIATED
AGREEMENT; AND FINALLY, BY ADDING TO AND MODIFYING THE AGREEMENT BY
INCLUDING AN EVALUATION OF PERFORMANCE AS A FORM OF DISCIPLINARY ACTION.
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 ARBITRATOR EXCEEDED HIS AUTHORITY. THUS, THE
COUNCIL WILL GRANT A PETITION FOR REVIEW WHERE IT APPEARS THAT THE
EXCEPTION PRESENTS GROUNDS THAT AN ARBITRATOR EXCEEDED HIS AUTHORITY BY
DETERMINING AN ISSUE NOT INCLUDED IN THE QUESTION(S) SUBMITTED TO
ARBITRATION, LONG BEACH NAVAL SHIPYARD AND FEDERAL EMPLOYEES METAL
TRADES COUNCIL (STEESE, ARBITRATOR), 3 FLRC 83 (FLRC NO. 74A-40 (JAN.
15, 1975), REPORT NO. 62); OR BY GOING BEYOND THE SCOPE OF THE
SUBMISSION AGREEMENT, PACIFIC SOUTHWEST FOREST AND RANGE EXPERIMENT
STATION, FOREST SERVICE, DEPARTMENT OF AGRICULTURE AND AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3217 (MYERS, ARBITRATOR), 4
FLRC 198 (FLRC NO. 75A-4 (MAR. 18, 1976), REPORT NO. 101); OR BY
VIOLATING A SPECIFIC LIMITATION OR RESTRICTION ON HIS AUTHORITY WHICH IS
CONTAINED IN THE NEGOTIATED AGREEMENT,DEPARTMENT OF THE AIR FORCE,
NEWARK AIR FORCE STATION AND AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2221 (ATWOOD, ARBITRATOR), 5 FLRC 230 (FLRC NO. 76A-116
(MAR. 31, 1977), REPORT NO. 123); OR BY ADDING TO, OR MODIFYING ANY OF
THE TERMS OF THE AGREEMENT, CHARLESTON NAVAL SHIPYARD AND FEDERAL
EMPLOYEES METAL TRADES COUNCIL OF CHARLESTON (WILLIAMS, ARBITRATOR), 3
FLRC 415 (FLRC NO. 75A-7 (JUNE 26, 1975), REPORT NO. 76).
IN THE INSTANT CASE, HOWEVER, THE COUNCIL IS OF THE OPINION THAT THE
AGENCY'S PETITION DOES NOT DESCRIBE FACTS AND CIRCUMSTANCES TO SUPPORT
ITS EXCEPTION THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY IN ANY MANNER.
IN THIS REGARD, THE COUNCIL NOTES THAT THE ARBITRATOR, IN HIS OPINION
ACCOMPANYING HIS AWARD, ADDRESSED BOTH ISSUES SUBMITTED TO HIM WITH
CITATION TO AND BASED UPON THE DISPUTED AGREEMENT PROVISION, AND MADE
HIS AWARD ACCORDINGLY. THE AGENCY PRESENTS NO FACTS AND CIRCUMSTANCES
TO SUPPORT ITS ASSERTION THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY IN
ANY OF THE WAYS ALLEGED BY HIS REFERENCE TO DISCIPLINE IN HIS OPINION
ACCOMPANYING HIS AWARD. ACCORDINGLY, THE AGENCY'S FIRST EXCEPTION
PROVIDES NO BASIS FOR ACCEPTANCE OF THE AGENCY'S PETITION UNDER SECTION
2411.32 OF THE COUNCIL'S RULES.
THE AGENCY'S SECOND EXCEPTION ALLEGES THAT THE ARBITRATOR'S AWARD
DOES NOT DRAW ITS ESSENCE FROM THE AGREEMENT. THE AGENCY CONTENDS IN
THIS REGARD THAT THE ARBITRATOR WENT OUTSIDE THE PARTIES' AGREEMENT WHEN
HE FOUND THAT THE WARNING LETTER WAS A PART OF PROGRESSIVE DISCIPLINE IN
INDUSTRIAL RELATIONS AND THUS GRIEVABLE. ACCORDING TO THE AGENCY, THE
ARBITRATOR FAILED TO CONFINE HIMSELF TO THE AGREEMENT WHEN MAKING HIS
AWARD SINCE NOWHERE IN THE LABOR AGREEMENT IS SUCH A LETTER DEFINED OR
MENTIONED AS A FORM OF DISCIPLINE.
THE COUNCIL WILL GRANT A PETITION FOR REVIEW OF AN ARBITRATION AWARD
IN CASES 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 R3-14 AND FEDERAL
AVIATION ADMINISTRATION, OKLAHOMA CITY, OKLAHOMA (STRATTON, ARBITRATOR),
3 FLRC 475 (FLRC NO. 74A-38 (JULY 30, 1975), REPORT NO. 79). HOWEVER,
THE COUNCIL IS OF THE OPINION THAT THE AGENCY'S SECOND EXCEPTION IS NOT
SUPPORTED BY THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION. IN
THIS REGARD, THE AGENCY HAS PRESENTED NO FACTS AND CIRCUMSTANCES TO
DEMONSTRATE THAT THE ARBITRATOR'S AWARD, BASED UPON HIS INTERPRETATION
AND APPLICATION OF THE PARTIES' AGREEMENT, IS SO PALPABLY FAULTY THAT NO
JUDGE, OR GROUP OF JUDGES, COULD EVER CONCEIVABLY HAVE MADE SUCH A
RULING; OR THAT THE AWARD COULD NOT IN ANY RATIONAL WAY BE DERIVED FROM
THE AGREEMENT; OR THAT IT EVIDENCES A MANIFEST DISREGARD OF THE
AGREEMENT; OR ON ITS FACE REPRESENTS AN IMPLAUSIBLE INTERPRETATION
THEREOF, NAGE LOCAL R3-14 AND FEDERAL AVIATION ADMINISTRATION, OKLAHOMA
CITY, OKLAHOMA, SUPRA. FURTHERMORE, TO THE EXTENT THAT THE AGENCY'S
EXCEPTION IS BASED UPON THE ARBITRATOR'S DISCUSSION, THE COUNCIL HAS
CONSISTENTLY HELD THAT IT IS THE AWARD RATHER THAN THE CONCLUSION OR
SPECIFIC REASONING EMPLOYED BY AN ARBITRATOR THAT IS SUBJECT TO
CHALLENGE. E.G., FEDERAL EMPLOYEES METAL TRADES COUNCIL AND PORTSMOUTH
NAVAL SHIPYARD (HELLER, ARBITRATOR), 4 FLRC 444 (FLRC NO. 76A-36 (AUG.
31, 1976), REPORT NO. 111). THEREFORE THIS EXCEPTION PROVIDES NO BASIS
FOR ACCEPTANCE OF THE AGENCY'S PETITION UNDER SECTION 2411.32 OF THE
COUNCIL'S RULES.
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. THE AGENCY'S REQUEST FOR A STAY IS
LIKEWISE DENIED.
BY THE COUNCIL.
SINCERELY,
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
CC: S. FLIG
NTEU
/1/ ARTICLE 8 (EVALUATIONS OF PERFORMANCE), SECTION 1, OF THE
PARTIES' NEGOTIATED AGREEMENT PROVIDES AS FOLLOWS:
A. ALL EVALUATIONS OF PERFORMANCE PROVIDED FOR UNDER THE TERMS OF
THIS AGREEMENT WILL BE
MADE IN A FAIR AND OBJECTIVE MANNER. EVALUATIONS WILL BE MADE ONLY
BY THE EMPLOYEE'S
IMMEDIATE SUPERVISOR WHO IS IMMEDIATELY RESPONSIBLE FOR THE
EMPLOYEE'S WORK AND WHO ASSIGNS,
REVIEWS, AND EVALUATES THE EMPLOYEE'S WORK; PROVIDED HOWEVER THAT IF
THE IMMEDIATE SUPERVISOR
IS TO BE CONSIDERED FOR A VACANT POSITION FOR WHICH THE EMPLOYEE IS
ALSO BEING CONSIDERED, THE
EVALUATION WILL BE MADE BY THE NEXT HIGHER LEVEL MANAGER.
B. A COPY OF EACH EVALUATION AS PROVIDED IN A ABOVE WILL BE
FURNISHED TO THE EMPLOYEE, AND
WILL BE DISCUSSED WITH THE EMPLOYEE AT LEAST TWO WORK DAYS PRIOR TO
ITS FILING. AN EMPLOYEE'S
INITIALS ON AN EVALUATION, WHERE INITIALING IS PROVIDED FOR,
INDICATES ONLY THAT THE
EVALUATION HAS BEEN RECEIVED, AND DOES NOT NECESSARILY INDICATE AN
EMPLOYEE'S AGREEMENT WITH
THE EVALUATION.
C. THE EMPLOYER WILL COUNSEL EMPLOYEES IN RELATION TO THEIR OVERALL
PERFORMANCE ON AN
AS-NEEDED BASIS. WHEN A NARRATIVE RECORDATION RESULTS FROM SUCH
COUNSELING, THE AFFECTED
EMPLOYEE WILL BE GIVEN A COPY OF THE RECORDATION AND WILL HAVE THE
RIGHT TO MAKE WRITTEN
COMMENTS CONCERNING ANY DISAGREEMENT WITH THE RECORDATION. THESE
WRITTEN COMMENTS WILL BE
ATTACHED TO AND BECOME A PART OF THE RECORDATION. THE EMPLOYER SHALL
HAVE THE RIGHT TO USE
SUCH RECORDATION WHEN EVALUATIONS PROVIDED FOR IN A ABOVE ARE BEING
COMPLETED AND THE CONTENT
THEREOF (I.E., THE RECORDATION) MAY NOT BE GRIEVED EXCEPT IN RELATION
TO A GRIEVANCE RELATED
TO THE COMPLETED EVALUATIONS IN A ABOVE.
6 FLRC 1036; FLRC NO. 78A-68; DECEMBER 22, 1978.
INTERNAL REVENUE SERVICE,
BROOKHAVEN SERVICE CENTER
AND
NATIONAL TREASURY EMPLOYEES
UNION
FLRC NO. 78A-68
DECISION ON APPEAL FROM ARBITRATION AWARD
(SYNOPSIS) FLRC NO. 78A-68
INTERNAL REVENUE SERVICE, BROOKHAVEN SERVICE CENTER AND NATIONAL
TREASURY EMPLOYEES UNION (MORRIS, ARBITRATOR). THE ARBITRATOR FOUND
THAT UNDER THE RELEVANT PROVISION OF THE PARTIES' AGREEMENT THE GRIEVANT
WAS ENTITLED TO 16 HOURS OF ADMINISTRATIVE LEAVE FOR THE 2-DAY PERIOD
SHE WAS UNABLE TO RETURN TO WORK FROM ANNUAL LEAVE DUE TO SEVERE SNOW
CONDITIONS AT A VACATION SITE. THE ARBITRATOR THEREFORE SUSTAINED THE
GRIEVANCE CONCERNING THE ACTIVITY'S DENIAL OF THE GRIEVANT'S REQUEST FOR
ADMINISTRATIVE LEAVE FOR THE PERIOD OF TIME IN QUESTION, AND DIRECTED
THAT SHE BE GRANTED THE LEAVE CLAIMED. THE COUNCIL ACCEPTED THE
AGENCY'S PETITION FOR REVIEW INSOFAR AS IT RELATED TO THE EXCEPTION
ALLEGING THAT THE AWARD VIOLATED APPLICABLE LAW AND APPROPRIATE
REGULATION. THE COUNCIL ALSO GRANTED THE AGENCY'S REQUEST FOR A STAY OF
THE AWARD. (REPORT NO. 155)
COUNCIL ACTION (DECEMBER 22, 1978). BASED UPON A DECISION OF THE
COMPTROLLER GENERAL, RENDERED IN RESPONSE TO THE COUNCIL'S REQUEST, THE
COUNCIL HELD THAT THE ARBITRATOR'S AWARD VIOLATED APPLICABLE LAW AND
REGULATIONS. ACCORDINGLY, PURSUANT TO SECTION 2411.37(B) OF ITS RULES
OF PROCEDURE, THE COUNCIL SET ASIDE THE AWARD.
BACKGROUND OF CASE
ACCORDING TO THE ARBITRATOR, THE GRIEVANT, A GS-7 TAX EXAMINER
ASSIGNED TO THE INTERNAL REVENUE SERVICE, BROOKHAVEN SERVICE CENTER (THE
ACTIVITY), WAS SCHEDULED TO RETURN TO WORK FROM ANNUAL LEAVE ON MARCH
23, 1977. SHE DID NOT REPORT TO WORK UNTIL MARCH 25, 1977, DUE TO
INCLEMENT WEATHER IN DECATUR, OTSEGO COUNTY, NEW YORK, WHERE SHE HAD
BEEN VACATIONING, ALTHOUGH SHE MADE REASONABLE, CONTINUING EFFORTS TO DO
SO, AND NOTIFIED HER SUPERVISOR OF HER DIFFICULTIES. THEREAFTER, SHE
REQUESTED 16 HOURS ADMINISTRATIVE LEAVE FOR MARCH 23 AND 24, PURSUANT TO
THE PARTIES' NEGOTIATED AGREEMENT. /1/ THE AGENCY DENIED HER REQUEST
FOR ADMINISTRATIVE LEAVE, GIVING RISE TO A GRIEVANCE WHICH ULTIMATELY
WENT TO ARBITRATION.
THE ARBITRATOR'S AWARD
THE ARBITRATOR FRAMED THE ISSUE AS WHETHER THE ACTIVITY VIOLATED THE
PARTIES' AGREEMENT BY DENYING THE GRIEVANT THE 16 HOURS ADMINISTRATIVE
LEAVE SHE HAD REQUESTED. HE SUSTAINED THE GRIEVANCE, FINDING THAT THE
GRIEVANT WAS ENTITLED TO ADMINISTRATIVE LEAVE BECAUSE THE PROVISION OF
THE AGREEMENT CONCERNING EMERGENCY WEATHER CONDITIONS WHICH PREVENT AN
EMPLOYEE FROM REPORTING TO WORK WERE NOT SPECIFICALLY LIMITED TO WEATHER
CONDITIONS WITHIN THE COMMUTING AREA OF THE WORK SITE.
AGENCY'S APPEAL TO THE COUNCIL
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 EXCEPTION WHICH ALLEGED THAT THE AWARD VIOLATES APPLICABLE
LAW AND APPROPRIATE REGULATION. /2/
OPINION
SECTION 2411.37(A) OF THE COUNCIL'S RULES OF PROCEDURE PROVIDES:
(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 NOTED, THE COUNCIL ACCEPTED THE AGENCY'S PETITION FOR
REVIEW INSOFAR AS IT RELATED TO ITS EXCEPTION WHICH ALLEGED THAT THE
AWARD VIOLATES APPLICABLE LAW AND APPROPRIATE REGULATION. BECAUSE THIS
CASE INVOLVES AN ISSUE WITHIN THE JURISDICTION OF THE COMPTROLLER
GENERAL'S OFFICE, THE COUNCIL REQUESTED FROM HIM A DECISION AS TO
WHETHER THE ARBITRATOR'S AWARD VIOLATES APPLICABLE LAW AND REGULATIONS.
THE COMPTROLLER GENERAL'S DECISION IN THE MATTER, B-193389, NOVEMBER 29,
1978, IS SET FORTH BELOW:
THIS ACTION RESPONDS TO THE FEDERAL LABOR RELATIONS COUNCIL'S REQUEST
OF OCTOBER 30, 1978,
FOR AN ADVANCE DECISION ON IMPLEMENTING THE AWARD OF ADMINISTRATIVE
LEAVE GRANTED BY THE
ARBITRATOR IN INTERNAL REVENUE SERVICE, BROOKHAVEN SERVICE CENTER AND
NATIONAL TREASURY
EMPLOYEES UNION (JAMES A. MORRIS, ARBITRATOR), FLRC NO. 78A-68. THIS
CASE IS BEFORE THE
FEDERAL LABOR RELATIONS COUNCIL AS A RESULT OF A PETITION FOR REVIEW
FILED BY THE AGENCY
ALLEGING THAT THE AWARD VIOLATES APPLICABLE LAWS AND REGULATIONS.
OUR JURISDICTION IS BASED
UPON THE AUTHORITY OF THE COMPTROLLER GENERAL UNDER 31 U.S.C. 74 AND
82D TO MAKE DECISIONS
INVOLVING THE EXPENDITURE OF APPROPRIATED FUNDS AND IS EXERCISED
UNDER THE RULES PUBLISHED IN
43 FED.REG. 32,395, JULY 27, 1978, (4 C.F.R.CHAPTER I, PART 21).
THE ISSUE IS WHETHER 2 DAYS OF PAID ADMINISTRATIVE LEAVE MAY LAWFULLY
BE GRANTED BECAUSE
SEVERE SNOW CONDITIONS AT THE EMPLOYEE'S PLACE OF VACATION PREVENTED
THE EMPLOYEE'S SCHEDULED
RETURN TO WORK AT HER PERMANENT DUTY STATION LOCATED OVER 200 MILES
AWAY. FOR THE PURPOSE OF
DECIDING THIS ISSUE, WE ASSUME ADMINISTRATIVE LEAVE TO MEAN AN
EXCUSED ABSENCE WITH PAY
WITHOUT THE AGENCY CHARGING THE EMPLOYEE'S ACCUMULATED ANNUAL LEAVE.
MRS. PEGGY ANN MISTLER, THE GRIEVANT IN THE ARBITRATION CASE, IS AN
EMPLOYEE OF THE
INTERNAL REVENUE SERVICE (IRS) AT ITS BROOKHAVEN SERVICE CENTER,
HOLTSVILLE, NEW YORK, ON LONG
ISLAND. SHE WAS AUTHORIZED ANNUAL LEAVE FOR HER VACATION AND WAS DUE
TO REPORT BACK AT THE
BROOKHAVEN SERVICE CENTER ON MARCH 23, 1977. HOWEVER, SEVERE SNOW
CONDITIONS HAD DEVELOPED
WHERE SHE WAS VACATIONING AT DECATUR, OTSEGO COUNTY, NEW YORK,
LOCATED OVER 200 MILES FROM THE
BROOKHAVEN SERVICE CENTER. MRS. MISTLER MADE REASONABLE CONTINUING
EFFORTS TO RETURN TO LONG
ISLAND ON MARCH 22, 23 AND 24, 1977, BUT WAS UNABLE TO DO SO UNTIL
MARCH 25, 1977, BECAUSE OF
THE SNOW AT DECATUR. THIS EMERGENCY CONDITION DID NOT EXIST IN THE
VICINITY OF THE BROOKHAVEN
SERVICE CENTER. SHE NOTIFIED HER SUPERVISOR ON MARCH 22 AND 23 OF
HER INABILITY TO REPORT FOR
WORK AS SCHEDULED ON MARCH 23 AND 24, AND SHE LATER PROVIDED
DOCUMENTATION OF HER EFFORTS TO
RETURN.
SEVERAL DAYS LATER, MRS. MISTLER REQUESTED 16 HOURS OF ADMINISTRATIVE
LEAVE FOR HER ABSENCE
ON MARCH 23 AND 24 DUE TO INCLEMENT WEATHER CONDITIONS, PURSUANT TO
ARTICLE 18, SECTION 2(B),
OF THE COLLECTIVE BARGAINING AGREEMENT BETWEEN THE BROOKHAVEN SERVICE
CENTER AND THE NATIONAL
TREASURY EMPLOYEES UNION, CHAPTER NO. 99. THE REQUEST WAS DENIED BY
BROOKHAVEN, LEADING TO
THE FILING OF A GRIEVANCE AND AN ARBITRATION HEARING.
THE ARBITRATOR'S OPINION AWARDING THE ADMINISTRATIVE LEAVE WAS BASED
ON BARGAINING HISTORY,
PAST PRACTICE, AND THE INTENT OF THE PARTIES CONCERNING SECTION 2(B)
OF ARTICLE 18. THE FULL
TEXT OF ARTICLE 18, SECTION 2 OF THE AGREEMENT READS AS FOLLOWS:
"ARTICLE 18 ADMINISTRATIVE LEAVE, SECTION 2.
"A. THE EMPLOYER AGREES THAT WHENEVER IT BECOMES NECESSARY TO CLOSE
AN OFFICE BECAUSE OF
INCLEMENT WEATHER OR ANY OTHER EMERGENCY SITUATION AND TO GRANT
ADMINISTRATIVE LEAVE TO THOSE
WHO ARE EXCUSED BECAUSE OF THE EMERGENCY, REASONABLE EFFORTS WILL BE
MADE TO INFORM ALL
EMPLOYEES BY PRIVATE OR PUBLIC MEDIA.
"B. IF EMERGENCY CONDITIONS DESCRIBED ABOVE EXIST AND PREVENT AN
EMPLOYEE FROM GETTING TO
WORK, AND THE CENTER IS NOT CLOSED, THE EMPLOYEE MAY BE GRANTED
ADMINISTRATIVE LEAVE FOR
ABSENCE FROM WORK FOR A PART OR ALL OF HIS/HER WORKDAY IF HE/SHE
PROVIDES THE EMPLOYER WITH
REASONABLY ACCEPTABLE DOCUMENTATION THAT HE/SHE MADE A REASONABLE,
CONTINUING EFFORT TO REACH
WORK BUT THAT THE EMERGENCY CONDITIONS PREVENTED HIM/HER FROM DOING
SO. THE EMPLOYER AT HIS
OPTION, MAY WAIVE THE ABOVE REQUIREMENT FOR DOCUMENTATION FOR
ABSENCES OF ONE (1) HOUR OR
LESS."
THE ARBITRATOR STATED THAT THERE WAS AN HONEST DIFFERENCE OF OPINION
BETWEEN MANAGEMENT AND THE UNION OVER THE INTENDED MEANING OF SECTION
2(B). HE NOTED THAT THERE WAS NO SPECIFICATION THAT THE EMERGENCY
WEATHER CONDITIONS MUST BE THOSE PREVAILING IN THE COMMUTING AREA. HE
CONCLUDED THAT, SINCE THE PARTIES DID NOT RESTRICT THE EMERGENCY
CONDITIONS PROVISION TO THE COMMUTING AREA OF THE BROOKHAVEN SERVICE
CENTER, IT APPLIED TO A SITUATION WHERE THE EMERGENCY SNOW CONDITIONS
OCCURRED AT THE PLACE OF VACATION OUTSIDE THE COMMUTING AREA.
THEREFORE, HE FOUND THAT THE GRIEVANT WAS ENTITLED TO ADMINISTRATIVE
LEAVE UNDER SECTION 2(B), ARTICLE 18.
THE IRS IN ITS PETITION FOR REVIEW BEFORE THE FEDERAL LABOR RELATIONS
COUNCIL ARGUES THAT THE ARBITRATOR'S INTERPRETATION OF SECTION 2(B)
COULD NOT LEGALLY HAVE BEEN WITHIN THE CONTEMPLATION OF THE PARTIES.
THE IRS CHARACTERIZES A VACATION EMERGENCY PREVENTING AN EMPLOYEE'S
RETURN TO DUTY AS PURELY PERSONAL TO THE EMPLOYEE IF THE EMERGENCY
OCCURS AT A PLACE OF VACATION DISTANT FROM THE COMMUTING AREA. IT
BELIEVES THAT A FEDERAL AGENCY MAY NOT LAWFULLY GRANT ADMINISTRATIVE
LEAVE FOR A PURELY PERSONAL EMERGENCY OF THIS KIND.
THE UNION IN ITS RESPONSE AGREES WITH THE ARBITRATOR'S REASONING. IT
POINTS OUT THAT AN ARBITRATOR'S AWARD SHOULD NOT BE INTERFERED WITH
SOLELY BECAUSE A REVIEWING AUTHORITY INTERPRETS A COLLECTIVE BARGAINING
AGREEMENT DIFFERENTLY THAN THE ARBITRATOR.
OUR REVIEW OF AN ARBITRATOR'S AWARD IS CONDUCTED TO DETERMINE WHETHER
THE AWARD IS CONSISTENT WITH LAWS, REGULATIONS, AND APPLICABLE
DECISIONS, AS THEY APPLY TO THE EXPENDITURE OF APPROPRIATED FUNDS. WE
ACCEPT AN ARBITRATOR'S REASONABLE INTERPRETATION OF A NEGOTIATED
AGREEMENT EVEN THOUGH WE MIGHT HAVE INTERPRETED IT DIFFERENTLY IN THE
FIRST INSTANCE. ROY F. ROSS AND EVERETT A. SQUIRE, B-191266, JUNE 12,
1978. HOWEVER, WE CANNOT ACCEPT AN INTERPRETATION WHICH RESULTS IN AN
AWARD THAT CONTRAVENES APPLICABLE LAWS AND REGULATIONS.
OUR DECISION IN 56 COMP.GEN. 865, 868(1977), FOLLOWED OUR CONSISTENT
HOLDINGS THAT ABSENCE SHOULD BE CHARGED TO ANNUAL LEAVE IF EXCESS
TRAVELTIME IS:
" * * * ATTRIBUTABLE TO THE EMPLOYEE'S DELAY OR DEVIATION FROM THE
DIRECT ROUTE OF TRAVEL
FOR PERSONAL REASONS OR WHERE THE EXCESS TRAVELTIME IS OTHERWISE A
MATTER OF PERSONAL
CONVENIENCE TO THE EMPLOYEE * * * ."
THE GUIDELINES IN FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-2, BOOK
610, APPENDIX A, PARA. A-2, SIMILARLY EXCLUDE PERSONAL REASONS FOR
GRANTING ADMINISTRATIVE LEAVE DURING EMERGENCY SITUATIONS. THERE, AN
EMERGENCY IS DEFINED AS "ONE WHICH MAY PREVENT EMPLOYEES IN SIGNIFICANT
NUMBERS FROM REPORTING FOR WORK * * * ." FURTHER, PARA. A-2 SAYS THE
EMERGENCY "MUST BE GENERAL RATHER THAN PERSONAL IN SCOPE AND IMPACT."
THE ONLY STATUTORY PROVISION WE ARE AWARE OF WHICH SPECIFICALLY
RECOGNIZES THE GENERAL AUTHORITY OF AN EXECUTIVE AGENCY TO GRANT
ADMINISTRATIVE LEAVE IS 5 U.S.C. 6326, ENACTED BY PUBLIC LAW 90-588,
OCTOBER 17, 1968, 82 STAT. 1151. IT AUTHORIZES UP TO 3 DAYS' ABSENCE
WITH PAY AND WITHOUT CHARGE TO LEAVE FOR FUNERALS OF IMMEDIATE RELATIVES
WHO DIE AS A RESULT OF SERVING IN THE ARMED FORCES IN A COMBAT ZONE.
SUBSECTION (C) OF THIS PROVISION PROVIDES:
"THIS SECTION SHALL NOT BE CONSIDERED AS AFFECTING THE AUTHORITY OF
AN EXECUTIVE AGENCY,
EXCEPT TO THE EXTENT AND UNDER THE CONDITIONS COVERED UNDER THIS
SECTION, TO GRANT
ADMINISTRATIVE LEAVE EXCUSING AN EMPLOYEE FROM WORK WHEN IT IS IN THE
PUBLIC INTEREST."
IN OUR VIEW THIS PROVISION MERELY SANCTIONS PREVIOUSLY ISSUED
DECISIONS, REGULATIONS, AND INSTRUCTIONS REGARDING SUCH LEAVE. ITS
SIGNIFICANCE TO THE PRESENT CASE, MOREOVER, IS THAT IT RECOGNIZES THAT
THE ADMINISTRATIVE LEAVE AUTHORIZED IS TO FURTHER THE "PUBLIC INTEREST,"
AS DISTINCT FROM THE PURELY PERSONAL INTEREST OF THE EMPLOYEE.
THE PRESENT CASE INVOLVES THE TYPICAL SITUATION WHERE A FEDERAL
AGENCY HAS NO CONTROL OVER SELECTING THE PLACE OF VACATION, WHICH CAN BE
AS FAR DISTANT, REMOTE, AND SUSCEPTIBLE TO EMERGENCY SITUATIONS AS THE
EMPLOYEE ELECTS. BY PICKING A VACATION SPOT AWAY FROM HIS PERMANENT
DUTY STATION, THE EMPLOYEE ESTABLISHES THE DEGREE OF RISK THAT HIS
RETURN TO DUTY WILL BE DELAYED. IT HAS ALWAYS BEEN THE RESPONSIBILITY
OF THE EMPLOYEE TO RETURN TO DUTY AFTER A VACATION. IN THIS SENSE, AN
EMERGENCY AT THE VACATION SITE AND ANY RESULTING DELAY ARE ESSENTIALLY
PERSONAL TO THE EMPLOYEE. AS DISCUSSED ABOVE UNDER OUR DECISION IN 56
COMP.GEN. 865(1977), ADMINISTRATIVE LEAVE IS NOT PERMITTED FOR SUCH
PERSONAL REASONS. THIS KIND OF EMERGENCY CONCERNS THE EMPLOYEE'S
PRIVATE INTEREST, RATHER THAN THE PUBLIC INTEREST RECOGNIZED AS
APPROPRIATE FOR ADMINISTRATIVE LEAVE UNDER 5 U.S.C. 6326(C).
THE ARBITRATOR'S AWARD VIOLATES APPLICABLE LAW AND REGULATIONS
GOVERNING THE AUTHORITY OF THE IRS TO GRANT ADMINISTRATIVE LEAVE.
CONSEQUENTLY THE AWARD OF ADMINISTRATIVE LEAVE TO MRS. MISTLER MAY NOT
BE IMPLEMENTED.
BASED UPON THE FOREGOING DECISION OF THE COMPTROLLER GENERAL, IT IS
CLEAR THAT THE ARBITRATOR'S AWARD, GRANTING THE GRIEVANT ADMINISTRATIVE
LEAVE FOR THE 2 DAYS SHE WAS UNABLE TO RETURN TO WORK BECAUSE OF
INCLEMENT WEATHER CONDITIONS WHERE SHE WAS VACATIONING, VIOLATES
APPLICABLE LAW AND REGULATIONS AND MUST BE SET ASIDE.
CONCLUSION
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
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
ISSUED: DECEMBER 22, 1978
/1/ ACCORDING TO THE ARBITRATOR, THE PARTIES' NEGOTIATED AGREEMENT
PROVIDES, IN RELEVANT PART:
ARTICLE 18 ADMINISTRATIVE LEAVE, SECTION 2.
A. THE EMPLOYER AGREES THAT WHENEVER IT BECOMES NECESSARY TO CLOSE
AN OFFICE BECAUSE OF
INCLEMENT WEATHER OR ANY OTHER EMERGENCY SITUATION AND TO GRANT
ADMINISTRATIVE LEAVE TO THOSE
WHO ARE EXCUSED BECAUSE OF THE EMERGENCY, REASONABLE EFFORTS WILL BE
MADE TO INFORM ALL
EMPLOYEES BY PRIVATE OR PUBLIC MEDIA.
B. IF EMERGENCY CONDITIONS DESCRIBED ABOVE EXIST AND PREVENT AN
EMPLOYEE FROM GETTING TO
WORK, AND THE CENTER IS NOT CLOSED, THE EMPLOYEE MAY BE GRANTED
ADMINISTRATIVE LEAVE FOR
ABSENCE FROM WORK FOR A PART OR ALL OF HIS/HER WORKDAY IF HE/SHE
PROVIDES THE EMPLOYER WITH
REASONABLY ACCEPTABLE DOCUMENTATION THAT HE/SHE MADE A REASONABLE,
CONTINUING EFFORT TO REACH
WORK BUT THAT THE EMERGENCY CONDITIONS PREVENTED HIM/HER FROM DOING
SO. THE EMPLOYER AT HIS
OPTION, MAY WAIVE THE ABOVE REQUIREMENT FOR DOCUMENTATION FOR
ABSENCES OF ONE (1) HOUR OR
LESS.
/2/ THE AGENCY REQUESTED AND THE COUNCIL GRANTED, PURSUANT TO SECTION
2411.47(F) OF THE COUNCIL'S RULES OF PROCEDURE, A STAY OF THE AWARD
PENDING DETERMINATION OF THE APPEAL.
6 FLRC 1031; FLRC NO. 78A-62; DECEMBER 22, 1978.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
NATIONAL COUNCIL OF SOCIAL SECURITY
PAYMENT CENTER LOCALS
(UNION)
AND
SOCIAL SECURITY ADMINISTRATION, BUREAU
OF RETIREMENT AND SURVIVORS INSURANCE
(AGENCY)
FLRC NO. 78A-62
DECISION ON NEGOTIABILITY ISSUES
(SYNOPSIS) FLRC NO. 78A-62
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, NATIONAL COUNCIL OF
SOCIAL SECURITY PAYMENT CENTER LOCALS AND SOCIAL SECURITY
ADMINISTRATION, BUREAU OF RETIREMENT AND SURVIVORS INSURANCE. THE
DISPUTE INVOLVED TWO PROPOSALS OF THE AGENCY FOR INCLUSION IN THE
PARTIES' MASTER AGREEMENT, WHICH PROPOSALS RELATED TO THE FRAMEWORK OF
THE PARTIES' RELATIONSHIP DURING THE TERM OF THAT AGREEMENT.
COUNCIL ACTION (DECEMBER 22, 1978). THE COUNCIL HELD THAT THE
AGENCY'S PROPOSALS WERE WITHIN THE BARGAINING OBLIGATION ESTABLISHED BY
SECTION 11(A) OF THE ORDER, AND DID NOT APPEAR OTHERWISE NONNEGOTIABLE.
ACCORDINGLY, PURSUANT TO SECTION 2411.28 OF ITS RULES, THE COUNCIL
SUSTAINED THE AGENCY'S DETERMINATION THAT THE PROPOSALS WERE NEGOTIABLE.
AGENCY PROPOSALS I AND II /1/
SECTION C. THE PROGRAM SERVICE CENTER AND RESPECTIVE LOCAL WILL
CONTINUE TO FOLLOW THE
TRADITIONAL CONSULTATION PROCESS RELATING TO PERSONNEL POLICIES,
PRACTICES, AND WORKING
CONDITIONS. LOCAL ISSUES WILL NOT BE ESCALATED TO THE BUREAU/COUNCIL
LEVEL FOR MEETING AND
CONFERRING.
SECTION D. THE BUREAU AND THE COUNCIL AGREE THAT LABOR-MANAGEMENT
MEETINGS IN THE PROGRAM
SERVICE CENTER TO DISCUSS LOCAL PERSONNEL POLICIES AND PRACTICES AND
OTHER GENERAL WORKING
CONDITIONS SHOULD BE HELD ON A MONTHLY BASIS UNLESS DEFERRED BY
MUTUAL CONSENT OF THE PROGRAM
SERVICE CENTER AND THE LOCAL.
AGENCY DETERMINATION
THE AGENCY DETERMINED THAT THE PROPOSALS ARE NEGOTIABLE UNDER THE
ORDER.
QUESTION HERE FORE THE COUNCIL
THE QUESTION IS WHETHER THE AGENCY'S PROPOSALS ARE NEGOTIABLE UNDER
THE ORDER. /2/
OPINION
CONCLUSION: THE PROPOSALS ARE WITHIN THE BARGAINING OBLIGATION
ESTABLISHED BY SECTION 11(A) OF THE ORDER, AND DO NOT APPEAR OTHERWISE
NONNEGOTIABLE. ACCORDINGLY, THE AGENCY'S DETERMINATION THAT THE
PROPOSALS ARE NEGOTIABLE WAS PROPER AND, PURSUANT TO SECTION 2411.28 OF
THE COUNCIL'S RULES, IS SUSTAINED. /3/
REASONS: THE AGENCY'S PROPOSALS AT ISSUE HERE AROSE IN CONNECTION
WITH THE PARTIES' NEGOTIATION OF A MASTER AGREEMENT COVERING AN
EXCLUSIVE BARGAINING UNIT REPRESENTED BY A NATIONAL COUNCIL, AND
CONSISTING OF SIX AFFILIATED LOCAL UNIONS, NONE OF WHICH IS SEPARATELY
CERTIFIED AS A COLLECTIVE BARGAINING REPRESENTATIVE. ACCORDING TO THE
LANGUAGE OF THE AGENCY'S PROPOSALS AND THE RELATED EXPLANATIONS OF THE
PARTIES IN THEIR SUBMISSIONS TO THE COUNCIL, THE PROPOSALS ESSENTIALLY
CONCERN THE RELATIONSHIP EXISTING BETWEEN THE PARTIES AT THE LOCAL
LEVEL, I.E., BETWEEN EACH PROGRAM SERVICE CENTER AND THE LOCAL UNION AT
THAT CENTER. MORE PARTICULARLY, AS APPEARS FROM THE RECORD BEFORE THE
COUNCIL, THE PROPOSALS DESCRIBE THE NATURE OF THE RELATIONSHIP AT THE
LOCAL LEVEL RELATING TO CHANGES IN ESTABLISHED PERSONNEL POLICIES,
PRACTICES, AND WORKING CONDITIONS DURING THE LIFE OF THE MASTER
AGREEMENT. UNDER THE PROPOSALS, AS RELEVANT HERE, THAT RELATIONSHIP AT
THE LOCAL LEVEL WOULD INCLUDE "CONSULTATIONS" AND "DISCUSSIONS" AS TO
SUCH MIDCONTRACT CHANGES, BUT WOULD NOT INCLUDE "NEGOTIATIONS."
CONVERSELY, IT APPEARS FROM THE RECORD BEFORE US THAT THE PROPOSALS DO
NOT PERTAIN TO THE NATURE OF THE RELATIONSHIP OR THE NATURE OF THE
RIGHTS AND OBLIGATIONS OF THE PARTIES AT THE LEVEL OF RECOGNITION
CONCERNING SUCH MIDCONTRACT CHANGES; THAT IS, THE PROPOSALS IN NO WAY
ATTEMPT TO DEFINE OR DESCRIBE THE RELATIONSHIP BETWEEN THE BUREAU AND
THE NATIONAL COUNCIL OF SOCIAL SECURITY PAYMENT CENTER LOCALS CONCERNING
CHANGES IN ESTABLISHED PERSONNEL POLICIES, PRACTICES, AND WORKING
CONDITIONS DURING THE LIFE OF THE MASTER AGREEMENT.
IN THE AFGE COUNCIL OF PRISON LOCALS CASE, /4/ THE DISPUTED UNION
PROPOSAL CONCERNED THE NEGOTIATION OF LOCAL SUPPLEMENTS TO THE PARTIES'
MASTER AGREEMENT. IN RESOLVING THE DISPUTE, THE COUNCIL NOTED THAT
PARTIES TO NEGOTIATIONS ARE FREE TO DETERMINE BOTH THE FORM AND THE
SUBSTANCE OF THEIR AGREEMENT, AND THUS, A PROPOSAL AFFECTING THE FORM OR
STRUCTURE OF THE PARTIES' MASTER AGREEMENT WOULD FALL WITHIN THE
OBLIGATION TO BARGAIN ESTABLISHED BY SECTION 11(A) OF THE ORDER, SO LONG
AS SUCH PROPOSAL DID NOT CONFLICT WITH EXPLICIT LIMITATIONS ON
NEGOTIATIONS CONTAINED IN THAT SECTION OF THE ORDER. CONSEQUENTLY, THE
COUNCIL FOUND, INTER ALIA, "THAT THERE IS AN OBLIGATION UNDER SECTION
11(A), IF REQUESTED, TO NEGOTIATE AT THE LEVEL OF RECOGNITION ON
PROPOSALS FOR THE MASTER AGREEMENT CONCERNING WHETHER OR NOT
SUPPLEMENTAL LOCAL NEGOTIATION WILL BE REQUIRED UNDER THE CONTROLLING
AGREEMENT. . . . " /5/
ANALOGOUS REASONING APPLIES IN THIS CASE TO THE AGENCY'S PROPOSALS
OFFERED IN BARGAINING AT THE LEVEL OF RECOGNITION, PROPOSED FOR
INCLUSION IN THE PARTIES' MASTER AGREEMENT, AND RELATING TO THE
FRAMEWORK OF THE PARTIES' RELATIONSHIP DURING THE TERM OF THAT MASTER
AGREEMENT. THAT IS, THE PARTIES ARE FREE TO DETERMINE BOTH THE FORM AND
THE SUBSTANCE OF THEIR AGREEMENTS AT THE LEVEL OF RECOGNITION. THUS,
PROPOSALS DESCRIBING THE NATURE OF THE PARTIES' RELATIONSHIP BELOW THE
LEVEL OF RECOGNITION CONCERNING MIDCONTRACT CHANGES IN ESTABLISHED
PERSONNEL POLICIES, PRACTICES, AND MATTERS AFFECTING WORKING CONDITIONS
FALL WITHIN THE OBLIGATION TO BARGAIN ESTABLISHED BY SECTION 11(A) OF
THE ORDER. HENCE, WE FIND THAT THE SECTION 11(A) OBLIGATION TO BARGAIN
COMPREHENDS AN OBLIGATION TO NEGOTIATE, AT THE LEVEL OF RECOGNITION, ON
THE PROPOSALS AT ISSUE HERE, WHICH RELATE TO THE NATURE OF THE
RELATIONSHIP TO BE ESTABLISHED BELOW THE LEVEL OF RECOGNITION, I.E., AT
THE LOCAL LEVEL, AS TO SUCH MIDCONTRACT CHANGES.
THE UNION CONTENDS THAT THE AGENCY'S PROPOSALS ARE NONNEGOTIABLE,
BASED ON THE MISTAKEN ASSERTION THAT THE AGENCY HAS AN OBLIGATION TO
BARGAIN BELOW THE LEVEL OF RECOGNITION, I.E., AT THE LOCAL LEVEL WITHIN
THE NATIONAL COUNCIL'S UNIT OF EXCLUSIVE RECOGNITION. HOWEVER, AS THE
COUNCIL STATED IN THE AFGE COUNCIL OF PRISON LOCALS CASE: "WE MUST
EMPHASIZE THAT UNDER SECTION 11(A) OF THE ORDER THE OBLIGATION TO
NEGOTIATE AGREEMENTS APPLIES ONLY AT THE LEVEL OF RECOGNITION." /6/ THIS
IS AS TRUE OF AGREEMENTS RESULTING FROM MIDCONTRACT CHANGES AS OF
AGREEMENTS CONSTITUTING THE BASIC CONTRACT BETWEEN AN AGENCY AND A LABOR
ORGANIZATION; THAT IS, UNDER SECTION 11(A) OF THE ORDER THE OBLIGATION
TO NEGOTIATE WITH RESPECT TO MIDCONTRACT CHANGES APPLIES ONLY AT THE
LEVEL OF RECOGNITION. /7/ WHETHER THAT OBLIGATION IS TO BE EXTENDED TO
LEVELS BELOW THE LEVEL OF RECOGNITION IS TO BE DETERMINED BY THE PARTIES
TO THE BARGAINING RELATIONSHIP AT THE LEVEL OF RECOGNITION. THEREFORE,
AND APART FROM OTHER CONSIDERATIONS, WE REJECT THE UNION'S ARGUMENT THAT
THE AGENCY'S PROPOSALS ARE NONNEGOTIABLE.
ACCORDINGLY, WE FIND THE AGENCY'S PROPOSALS NEGOTIABLE.
BY THE COUNCIL.
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
ISSUED: DECEMBER 22, 1978
/1/ THE PROPOSALS ARE CONSIDERED TOGETHER FOR CONVENIENCE SINCE
ESSENTIALLY THE SAME ISSUES AND CONTENTIONS ARE INVOLVED.
/2/ IN ITS STATEMENT OF POSITION, THE AGENCY CONTENDED THAT THE
UNION'S PETITION FOR REVIEW WAS UNTIMELY FILED. HOWEVER, IN VIEW OF OUR
DECISION HEREIN WE FIND IT UNNECESSARY TO REACH OR PASS UPON THIS
CONTENTION.
/3/ THIS DECISION SHOULD NOT BE CONSTRUED AS EXPRESSING OR IMPLYING
ANY OPINION OF THE COUNCIL AS TO THE MERITS OF THE PROPOSALS. WE DECIDE
ONLY THAT, IN THE CIRCUMSTANCES PRESENTED, THE PROPOSALS ARE PROPERLY
SUBJECT TO NEGOTIATION BY THE PARTIES CONCERNED UNDER SECTION 11(A) OF
THE ORDER.
/4/ AFGE COUNCIL OF PRISON LOCALS AND DEPARTMENT OF JUSTICE, BUREAU
OF PRISONS AND FEDERAL PRISON INDUSTRIES, 5 FLRC 516 (FLRC NO. 76A-38
(JUNE 22, 1977), REPORT NO. 129).
/5/ ID., 520.
/6/ ID.
/7/ REGARDING THE OBLIGATION TO NEGOTIATE WITH RESPECT TO MIDCONTRACT
CHANGES, SEE LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1975),
41-42.
6 FLRC 1012; FLRC NO. 77A-13; DECEMBER 22, 1978.
NEW YORK REGIONAL OFFICE, BUREAU OF DISTRICT
OFFICE OPERATIONS, SOCIAL SECURITY ADMINISTRATION,
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE
AND
LOCAL NO. 3369, NEW YORK-NEW JERSEY COUNCIL
OF SOCIAL SECURITY ADMINISTRATION DISTRICT OFFICE
LOCALS, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
FLRC NO. 77A-13
DECISION ON APPEAL FROM ARBITRATION AWARD
(SYNOPSIS) FLRC NO. 77A-13
NEW YORK REGIONAL OFFICE, BUREAU OF DISTRICT OFFICE OPERATIONS,
SOCIAL SECURITY ADMINISTRATION, DEPARTMENT OF HEALTH, EDUCATION, AND
WELFARE AND LOCAL NO. 3369, NEW YORK-NEW JERSEY COUNCIL OF SOCIAL
SECURITY ADMINISTRATION DISTRICT OFFICE LOCALS, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO (ROBINS, ARBITRATOR). THE ARBITRATOR
FOUND THAT THE AGENCY VIOLATED THE NEGOTIATED AGREEMENT BY FAILING TO
PROMOTE THE GRIEVANT ON A PARTICULAR DATE BECAUSE OF AN ERROR IN
PROCESSING THE RECOMMENDATION FOR THE PROMOTION, AND, AS A REMEDY,
ORDERED THAT THE GRIEVANT'S PROMOTION BE MADE RETROACTIVE TO THAT DATE,
WITH BACKPAY. THE COUNCIL INITIALLY DENIED THE AGENCY'S PETITION FOR
REVIEW OF THE ARBITRATOR'S AWARD BECAUSE IT FAILED TO MEET THE
REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.32 OF THE COUNCIL'S
RULES OF PROCEDURE (5 FLRC 678). SUBSEQUENTLY, THE AGENCY REQUESTED THE
COMPTROLLER GENERAL'S DECISION AS TO THE AGENCY'S AUTHORITY TO IMPLEMENT
THE AWARD, AND ON THE BASIS OF THAT DECISION, MATTER OF: JANICE LEVY--
ARBITRATION AWARD OF RETROACTIVE PROMOTION AND BACKPAY, B-190408,
DECEMBER 21, 1977, REQUESTED THE COUNCIL TO RECONSIDER ITS DECISION
DENYING REVIEW OF THE AWARD. THE COUNCIL GRANTED THE REQUEST FOR
RECONSIDERATION, AND THEREAFTER ACCEPTED THE AGENCY'S PETITION FOR
REVIEW INSOFAR AS IT RELATED TO THE EXCEPTION ALLEGING THAT THE AWARD
VIOLATED APPLICABLE LAW AND APPROPRIATE REGULATION. THE COUNCIL ALSO
GRANTED THE AGENCY'S REQUEST FOR A STAY. (REPORT NO. 149)
COUNCIL ACTION (DECEMBER 22, 1978). BASED ON THE DECISION OF THE
COMPTROLLER GENERAL IN JANICE LEVY, AND RECOGNIZING THE COMPTROLLER
GENERAL'S REAFFIRMATION OF THAT DECISION IN MATTER OF: JOHN CAHILL--
ARBITRATION AWARD OF RETROACTIVE PROMOTION AND BACKPAY, B-192455,
NOVEMBER 1, 1978, THE COUNCIL FOUND THAT THE ARBITRATOR'S AWARD OF
RETROACTIVE PROMOTION AND BACKPAY VIOLATED APPLICABLE LAW AND
APPROPRIATE REGULATION. ACCORDINGLY, PURSUANT TO SECTION 2411.37(B) OF
ITS RULES OF PROCEDURE, THE COUNCIL MODIFIED THE ARBITRATOR'S AWARD BY
STRIKING THE PORTION THEREOF FOUND VIOLATIVE OF APPLICABLE LAW AND
APPROPRIATE REGULATION. AS SO MODIFIED, THE COUNCIL SUSTAINED THE AWARD
AND VACATED THE STAY WHICH IT HAD PREVIOUSLY GRANTED.
BACKGROUND OF CASE
BASED ON THE ARBITRATOR'S AWARD AND THE RECORD BEFORE THE COUNCIL, IT
APPEARS THAT THE DISPUTE IN THIS CASE AROSE WHEN THE GRIEVING EMPLOYEE,
ALONG WITH OTHER ELIGIBLE EMPLOYEES UNDER THE SAME TRAINING AGREEMENT,
WAS RECOMMENDED FOR A CAREER LADDER, NONCOMPETITIVE PROMOTION TO BE
EFFECTIVE MARCH 28, 1976. ALL RECOMMENDATIONS WERE FORWARDED, IN
ACCORDANCE WITH AGENCY PROCEDURE, TO THE REGIONAL PERSONNEL OFFICER OF
THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW) FOR APPROVAL AND
AUTHORIZATION. ALL RECOMMENDATIONS WERE MAILED TOGETHER ON THE SAME DATE
AND ALL OF THE GRIEVANT'S ELIGIBLE COWORKERS WERE PROMOTED ON MARCH 28,
1976. HOWEVER, THE GRIEVANT WAS NOT PROMOTED ON THAT DATE BECAUSE THE
RECOMMENDATION FOR THE GRIEVANT'S PROMOTION APPARENTLY NEVER REACHED THE
REGIONAL PERSONNEL OFFICER. WHEN THE ERROR WAS DISCOVERED, THE ACTIVITY
RESUBMITTED THE RECOMMENDATION AND REQUESTED THAT THE PROMOTION BE MADE
RETROACTIVELY EFFECTIVE AS OF MARCH 28, THE REQUEST FOR RETROACTIVITY
WAS DENIED BY HEW BECAUSE THE REGIONAL PERSONNEL OFFICER HAD NO RECORD
OF RECEIPT OF THE RECOMMENDATION AND, ACCORDING TO HEW, CIVIL SERVICE
COMMISSION REGULATIONS PRECLUDED MAKING RETROACTIVE PROMOTIONS IN SUCH
CIRCUMSTANCES. THE GRIEVANT WAS PROMOTED ON MAY 9, 1976. THEREAFTER,
THE GRIEVANT FILED A GRIEVANCE BECAUSE OF THE DELAY IN HER PROMOTION AND
IT WAS ULTIMATELY SUBMITTED TO ARBITRATION.
THE PARTIES STIPULATED THE ISSUE TO BE RESOLVED BY THE ARBITRATOR:
DID THE EMPLOYER VIOLATE ARTICLE XXV, SECTION 12 OF THE AGREEMENT /1/
BY NOT GIVING THE
GRIEVANT A CAREER LADDER PROMOTION AS OF MARCH 28, 1976 AND, IF SO,
WHAT SHALL BE THE
APPROPRIATE REMEDY?
THE ARBITRATOR OBSERVED THAT IT WAS STIPULATED THAT BUT FOR THE
ERROR, THE GRIEVANT WOULD HAVE BEEN PROMOTED ON MARCH 28, 1976. IN
RESOLVING THE GRIEVANCE, THE ARBITRATOR MADE SEVERAL FINDINGS: THE
AGENCY'S APPLICATION OF A "NO-RETROACTIVITY" RULE IN THIS CASE WOULD
RESULT IN A "LASTING INEQUITY"; THE AGENCY'S ACTIONS CONSTITUTED A
VIOLATION OF ARTICLE XXV, SECTION 12 OF THE NEGOTIATED AGREEMENT; AND
DECISIONS OF THE COMPTROLLER GENERAL DID NOT INDICATE A CONTRARY RESULT
INASMUCH AS THE "CLEAR INTENT OF THE AGENCY TO PROMOTE HAS BEEN
ESTABLISHED." ACCORDINGLY, THE ARBITRATOR ANSWERED THE STIPULATED ISSUE
IN THE AFFIRMATIVE AND ORDERED THE GRIEVANT'S PROMOTION TO BE MADE
EFFECTIVE AS OF MARCH 28, 1976, WITH BACKPAY TO THAT DATE.
THE AGENCY PETITIONED THE COUNCIL FOR REVIEW OF THE ARBITRATOR'S
AWARD AND REQUESTED THAT THE COUNCIL ACCEPT ITS PETITION ON THE BASIS OF
ITS EXCEPTION, AMONG OTHERS, WHICH ASSERTED THAT THE AWARD VIOLATED
APPLICABLE LAW AND APPROPRIATE REGULATION. IN SUPPORT OF THIS
EXCEPTION, THE AGENCY CONTENDED THAT THE AWARD VIOLATED "THE GENERAL
RULE PROHIBITING RETROACTIVE PROMOTION"; THAT THE TYPE OF
"ADMINISTRATIVE ERROR" PERMITTING AN EXCEPTION TO THE GENERAL RULE HAD
NOT OCCURRED; AND THAT THE "NONDISCRETIONARY AGENCY REQUIREMENT" WHICH
WOULD PERMIT RETROACTIVE PROMOTION AND BACKPAY WAS NOT PRESENT IN THIS
CASE.
THE COUNCIL WAS OF THE OPINION THAT THE AGENCY'S PETITION DID NOT
PRESENT THE FACTS AND CIRCUMSTANCES NECESSARY TO SUPPORT ITS EXCEPTION.
IN REACHING THIS CONCLUSION, THE COUNCIL OBSERVED THAT IT HAD PREVIOUSLY
INDICATED THAT, CONSISTENT WITH CIVIL SERVICE COMMISSION INSTRUCTIONS
AND COMPTROLLER GENERAL DECISIONS, IT HAS BEEN ESTABLISHED THAT AN
AGENCY MAY BE REQUIRED TO PROMOTE A PARTICULAR INDIVIDUAL AND ACCORD
THAT INDIVIDUAL BACKPAY WHEN A FINDING HAS BEEN MADE BY AN ARBITRATOR
THAT SUCH INDIVIDUAL WOULD DEFINITELY, AND IN ACCORDANCE WITH LAW,
REGULATION, AND THE NEGOTIATED AGREEMENT, HAVE BEEN PROMOTED AT A
PARTICULAR POINT IN TIME BUT FOR AN AGENCY VIOLATION OF ITS NEGOTIATED
AGREEMENT. THE COUNCIL FURTHER OBSERVED THAT THE ARBITRATOR
SPECIFICALLY FOUND IN THIS CASE THAT THE AGENCY ERROR CONSTITUTED A
VIOLATION OF THE NEGOTIATED AGREEMENT. SINCE IT WAS STIPULATED THAT BUT
FOR THE ERROR, THE GRIEVANT WOULD HAVE BEEN PROMOTED ON MARCH 28, 1976,
THE COUNCIL WAS THEREFORE OF THE OPINION THAT THIS EXCEPTION TO THE
AWARD PROVIDED NO BASIS FOR ACCEPTANCE OF THE AGENCY'S PETITION UNDER
THE COUNCIL'S RULES.
THE COUNCIL WAS ALSO OF THE OPINION THAT THE AGENCY'S OTHER
EXCEPTIONS TO THE AWARD LIKEWISE PROVIDED NO BASIS FOR ACCEPTANCE OF THE
AGENCY'S PETITION. ACCORDINGLY, ON AUGUST 2, 1977, THE COUNCIL DENIED
THE AGENCY'S PETITION FOR REVIEW. THE COUNCIL ALSO DENIED ITS REQUEST
FOR A STAY OF THE AWARD.
ON OCTOBER 12, 1977, HEW REQUESTED OF THE COMPTROLLER GENERAL HIS
DECISION AS TO ITS AUTHORITY TO IMPLEMENT THIS AWARD. THEREAFTER, IN
ANSWER TO THIS REQUEST THE COMPTROLLER GENERAL ISSUED HIS DECISION IN
MATTER OF: JANICE LEVY-- ARBITRATION AWARD OF RETROACTIVE PROMOTION AND
BACKPAY, B-190408, DECEMBER 21, 1977. /2/ SUBSEQUENTLY, ON THE BASIS OF
THE COMPTROLLER GENERAL'S DECISION IN JANICE LEVY, THE AGENCY REQUESTED
THE COUNCIL TO RECONSIDER AND REOPEN ITS DECISION DENYING THE PETITION
FOR REVIEW OF THE ARBITRATOR'S AWARD AND DENYING THE REQUEST FOR A STAY
OF THE AWARD. FINDING THAT THE COMPTROLLER GENERAL'S DECISION IN JANICE
LEVY WAS OF PRECEDENTIAL SIGNIFICANCE WITH REGARD TO THE AGENCY'S
PETITION FOR REVIEW OF THE AWARD, THE COUNCIL GRANTED THE REQUEST FOR
RECONSIDERATION OF ITS DECISION OF AUGUST 2, 1977. UPON RECONSIDERATION
OF THE AGENCY'S PETITION FOR REVIEW IN LIGHT OF JANICE LEVY THE COUNCIL
ACCEPTED THE AGENCY'S PETITION FOR REVIEW INSOFAR AS IT RELATED TO THE
AGENCY'S EXCEPTION WHICH ALLEGES THAT THE AWARD VIOLATES APPLICABLE LAW
AND APPROPRIATE REGULATION. ALSO UPON RECONSIDERATION, THE COUNCIL
DETERMINED THAT AN ISSUANCE OF A STAY OF THE AWARD WAS WARRANTED AND THE
AGENCY'S REQUEST FOR A STAY WAS THEREFORE GRANTED.
OPINION.
SECTION 2411.37(A) OF THE COUNCIL'S RULES OF PROCEDURE PROVIDES:
(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 NOTED, THE COUNCIL UPON RECONSIDERATION ACCEPTED THE
AGENCY'S PETITION FOR REVIEW INSOFAR AS IT RELATED TO ITS EXCEPTION
WHICH ALLEGES THAT THE AWARD VIOLATES APPLICABLE LAW AND APPROPRIATE
REGULATION. AS ALSO PREVIOUSLY NOTED, HEW REQUESTED AND RECEIVED OF THE
COMPTROLLER GENERAL HIS DECISION AS TO ITS AUTHORITY TO IMPLEMENT THIS
ARBITRATION AWARD OF RETROACTIVE PROMOTION AND BACKPAY. IN THAT
DECISION THE COMPTROLLER GENERAL OBSERVED THAT THERE IS AN EXCEPTION TO
THE RULE PROHIBITING RETROACTIVE PROMOTION WHEN THE FAILURE TO PROMOTE
CONSTITUTES A VIOLATION OF A NONDISCRETIONARY REGULATION OR POLICY.
ALTHOUGH RECOGNIZING THAT PROVISIONS OF NEGOTIATED AGREEMENTS MAY
CONSTITUTE NONDISCRETIONARY AGENCY POLICIES, THE COMPTROLLER GENERAL WAS
UNABLE TO FIND THAT THE ARBITRATOR IN THIS CASE SPECIFICALLY CONSTRUED
THE PERTINENT NEGOTIATED AGREEMENT PROVISION AS MANDATING PROMOTION OF
CAREER LADDER EMPLOYEES AT ANY SPECIFIC TIME. MOREOVER, THE COMPTROLLER
GENERAL DID NOT BELIEVE THAT THE ARBITRATOR COULD HAVE FOUND THAT THE
LANGUAGE OF THIS NEGOTIATED AGREEMENT PROVISION CONSTITUTED A
NONDISCRETIONARY AGENCY POLICY MANDATING PROMOTION OF CAREER LADDER
EMPLOYEES WITHIN ANY SPECIFIC TIMEFRAME. THE COMPTROLLER GENERAL
DECLARED THAT WHEN A PARTICULAR PROVISION DOES NOTHING MORE THAN
INCORPORATE CONTROLLING LAWS AND REGULATIONS INTO THE NEGOTIATED
AGREEMENT, AN ARBITRATOR IS NOT FREE TO DISREGARD ADMINISTRATIVE AND
JUDICIAL CONSTRUCTION OF SUCH PROVISION. CONCLUDING THAT THE NEGOTIATED
AGREEMENT LANGUAGE IN THIS CASE WAS IN SUBSTANCE MERELY A RESTATEMENT OF
A PROVISION OF THE CLASSIFICATION ACT OF 1949 /3/ AND THAT
ADMINISTRATIVE AND JUDICIAL DECISIONS OF THE ACT PRECLUDED ANY
INTERPRETATION OF THAT LANGUAGE AS VESTING IN EMPLOYEES, PARTICULARLY
CAREER LADDER EMPLOYEES, ANY RIGHT TO PROMOTION, THE COMPTROLLER GENERAL
HELD THAT HEW COULD NOT COMPLY WITH THE ARBITRATOR'S AWARD OF
RETROACTIVE PROMOTION AND BACKPAY.
ON THE BASIS OF THIS DECISION OF THE COMPTROLLER GENERAL AND
RECOGNIZING THAT THE COMPTROLLER GENERAL HAS RECENTLY REAFFIRMED THE
HOLDING AND PRINCIPLES ENUNCIATED IN JANICE LEVY, /4/ WE FIND THAT THE
ARBITRATOR'S AWARD OF RETROACTIVE PROMOTION AND BACKPAY VIOLATES
APPLICABLE LAW AND APPROPRIATE REGULATION.
CONCLUSION
ON THE BASIS OF THE COMPTROLLER GENERAL'S DECISION IN JANICE LEVY,
HIS SUBSEQUENT REAFFIRMATION OF THE PRINCIPLES ENUNCIATED THEREIN IN
JOHN CAHILL, AND PURSUANT TO SECTION 2411.37(B) OF THE COUNCIL'S RULES
OF PROCEDURE, WE MODIFY THE ARBITRATOR'S AWARD BY STRIKING THAT PORTION
OF THE AWARD WHICH DIRECTS THAT THE GRIEVANT BE GIVEN A RETROACTIVE
PROMOTION WITH BACKPAY. AS SO MODIFIED, THE AWARD IS SUSTAINED AND THE
STAY IS VACATED.
BY THE COUNCIL.
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
ATTACHMENT:
APPENDIX
ISSUED: DECEMBER 22, 1978
APPENDIX
FILE: B-190408 DATE: DECEMBER 21, 1977
MATTER OF: JANICE LEVY - ARBITRATION AWARD OF RETROACTIVE
PROMOTION AND BACKPAY
DIGEST: 1. WHERE PROMOTION OF EMPLOYEE IN CAREER LADDER POSITION
WAS
DELAYED BECAUSE ORIGINAL PROMOTION REQUEST SUBMITTED BY SUPERVISOR
WAS LOST IN MAILS, AGENCY
MAY NOT COMPLY WITH ARBITRATION AWARD OF RETROACTIVE PROMOTION AND
BACKPAY. ORIGINAL
PROMOTION REQUEST WAS LOST PRIOR TO APPROVAL OF PROMOTION BY
AUTHORIZED OFFICIAL AND HENCE THE
DELAY IN PROCESSING DOES NOT CONSTITUTE SUCH ADMINISTRATIVE ERROR AS
WILL SUPPORT RETROACTIVE
PROMOTION. FURTHER, EMPLOYEE HAD NO VESTED RIGHT TO PROMOTION
EFFECTIVE THE SAME DATE AS
OTHER EMPLOYEES IN SAME CAREER LADDER PROGRAM.
2. AWARD OF RETROACTIVE PROMOTION AND BACKPAY MAY NOT BE SUSTAINED
BASED ON ARBITRATOR'S
FINDING THAT EMPLOYEE WOULD HAVE BEEN PROMOTED MARCH 28 BUT FOR LOSS
OF PROMOTION REQUEST AND
THAT SUCH LOSS CONSTITUTED VIOLATION OF COLLECTIVE BARGAINING
AGREEMENT PROVISION
INCORPORATING PRINCIPLE OF EQUAL PAY FOR EQUAL WORK. RETROACTIVE
PROMOTION IS APPROPRIATE
WHERE DELAY OR FAILURE TO PROMOTE VIOLATES NONDISCRETIONARY AGENCY
REGULATION, POLICY OR
COLLECTIVE BARGAINING AGREEMENT PROVISION, OR A RIGHT GRANTED BY
STATUTE. ARBITRATOR DID NOT
AND, IN FACT, COULD NOT, FIND THAT PRINCIPLE OF EQUAL PAY FOR EQUAL
WORK MANDATES CAREER
LADDER PROMOTION AT A SPECIFIC DATE.
THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW) HAS REQUESTED
A DECISION CONCERNING ITS AUTHORITY TO IMPLEMENT AN ARBITRATION AWARD OF
RETROACTIVE PROMOTION AND BACKPAY TO MS. JANICE LEVY. THE AWARD WAS
GRANTED BY THE ARBITRATOR AS A REMEDY FOR HEW'S FAILURE TO PROCESS MS.
LEVY'S PROMOTION SIMULTANEOUSLY WITH THE PROMOTIONS OF OTHER SIMILARLY
SITUATED CAREER LADDER EMPLOYEES. THE DEPARTMENT BELIEVES THAT OUR
DECISIONS DOE NOT PERMIT IT TO COMPLY WITH THE AWARD.
THE FACTS ARE NOT IN DISPUTE AND MAY BE SUMMARIZED AS FOLLOWS.
JANICE LEVY IS A CLAIMS REPRESENTATIVE IN THE SOCIAL SECURITY
ADMINISTRATION (SSA). SHE WAS HIRED AT GRADE GS-5 AND, UPON 1 YEAR'S
SATISFACTORY SERVICE, WAS PROMOTED TO GS-7, EFFECTIVE MARCH 16, 1975.
SHE BECAME ELIGIBLE FOR A CAREER LADDER PROMOTION TO GS-9 AFTER 1 YEAR
OF SERVICE IN THE LOWER GRADE. PROMOTION REQUESTS WERE INITIATED BY THE
DISTRICT MANAGER FOR A GROUP OF ELIGIBLE EMPLOYEES IN THE BROOKLYN
OFFICE OF THE SSA, INCLUDING MS. LEVY. THOSE REQUESTS WERE FORWARDED IN
A COMMON ENVELOPE TO THE NEW YORK REGIONAL PERSONNEL OFFICER OF HEW,
TOGETHER WITH THE SUPERVISOR'S RECOMMENDATION THAT THE PROMOTIONS BE
MADE EFFECTIVE MARCH 28, 1976. ALL OF THE GRIEVANT'S ELIGIBLE COWORKERS
WERE PROMOTED ON MARCH 28, 1976. HOWEVER, FOR REASONS THAT REMAIN
UNEXPLAINED, THE PROMOTION REQUEST MADE ON MS. LEVY'S BEHALF APPARENTLY
NEVER REACHED THE REGIONAL PERSONNEL OFFICER WHO WAS AUTHORIZED TO
APPROVE PROMOTION ACTIONS. AS A RESULT, MS. LEVY WAS NOT PROMOTED ALONG
WITH THE OTHER EMPLOYEES ON MARCH 28, 1976. WHEN THE ERROR WAS
DISCOVERED, THE DISTRICT MANAGER, ON MAY 7, RESUBMITTED THE PROMOTION
REQUEST, RECOMMENDING THAT HER PROMOTION BE MADE RETROACTIVE TO MARCH
28, 1976. THE REGIONAL PERSONNEL OFFICER APPROVED MS. LEVY'S PROMOTION
EFFECTIVE MAY 9, 1976, BUT DECLINED TO MAKE IT RETROACTIVE ON THE GROUND
THAT HE HAD NO AUTHORITY TO DO SO.
MS. LEVY FILED A GRIEVANCE AS A RESULT OF THE REFUSAL TO PROMOTE HER
ON A RETROACTIVE BASIS. THE MATTER WAS ULTIMATELY SUBMITTED TO
ARBITRATION UNDER THE AGENCY'S LABOR-MANAGEMENT AGREEMENT. ON DECEMBER
21, 1976, EVA ROBINS, THE ARBITRATOR, AWARDED MS. LEVY A PROMOTION
RETROACTIVE TO MARCH 28, 1976, TOGETHER WITH BACKPAY FROM THAT DATE
THROUGH MAY 8, 1976. THE AWARD WAS PREDICATED ON THE ARBITRATOR'S
FINDING THAT THE EMPLOYER VIOLATED THE FOLLOWING PROVISION AT ARTICLE
XXV, SECTION 12 OF THE GENERAL AGREEMENT BETWEEN THE BUREAU OF DISTRICT
OFFICE OPERATIONS, SSA, NEW YORK REGION, AND THE NEW YORK-NEW JERSEY
COUNCIL OF DISTRICT OFFICE LOCALS OF THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO:
"THE EMPLOYER AND THE UNION AGREE TO THE PRINCIPLE OF EQUAL PAY FOR
SUBSTANTIALLY EQUAL
WORK AS WELL AS PROVIDING DISTINCTIONS IN PAY THAT ARE CONSISTENT
WITH DISTINCTIONS IN WORK
AND WORK PERFORMANCE."
IN AWARDING A RETROACTIVE PROMOTION WITH BACKPAY, THE ARBITRATOR
CONSIDERED THE COMPTROLLER GENERAL'S HOLDING IN B-180046, APRIL 11,
1974, THAT WHERE AN ORIGINAL PROMOTION REQUEST WAS LOST IN THE MAILS THE
EMPLOYEE COULD NOT BE PROMOTED RETROACTIVELY INASMUCH AS THE LOSS
OCCURRED PRIOR TO APPROVAL BY THE PARTICULAR OFFICIAL HAVING DELEGATED
AUTHORITY TO APPROVE PROMOTIONS. THAT DECISION SUMMARIZES PERTINENT
RULINGS WITH RESPECT TO RETROACTIVITY OF PROMOTIONS AS FOLLOWS:
" * * * IN CASES INVOLVING APPROVAL OF RETROACTIVE PROMOTIONS ON THE
GROUND OF
ADMINISTRATIVE OR CLERICAL ERROR IT IS NECESSARY THAT THE OFFICIAL
HAVING DELEGATED AUTHORITY
TO APPROVE THE PROMOTION HAS DONE SO. IF SUBSEQUENT TO SUCH APPROVAL
FORMAL ACTION TO EFFECT
THE PROMOTION IS NOT TAKEN ON A TIMELY BASIS AS INTENDED BY THE
APPROVING OFFICER
CONSIDERATION MAY BE GIVEN TO AUTHORIZING A RETROACTIVE EFFECTIVE
DATE. HOWEVER, WHEN, AS IN
THIS CASE, THE DELAY OR 'ERROR' OCCURRED PRIOR TO APPROVAL BY SUCH
RESPONSIBLE OFFICIAL THE
INTENT OF THE AGENCY TO PROMOTE HAS NOT BEEN ESTABLISHED AND THERE IS
NO BASIS FOR HOLDING
THAT A PROPERLY APPROVED PROMOTION WAS DELAYED DUE TO AN
ADMINISTRATIVE OR CLERICAL ERROR. *
* * "
THE ARBITRATOR DISTINGUISHED THE SITUATION ADDRESSED IN B-180046,
SUPRA, BASED FIRST ON THE FACT THAT MS. LEVY'S PROMOTION WAS PART OF A
CAREER LADDER PROGRAM, AND BASED SECONDLY ON THE FACT THAT LOSS OF THE
INITIAL PROMOTION REQUEST HAD BEEN ESTABLISHED BY CLEAR AND COMPELLING
EVIDENCE:
"IT WAS ACKNOWLEDGED AT THE HEARING THAT THERE IS NO QUESTION
WHATEVER ABOUT MS. LEVY'S
PERFORMANCE AND ELIGIBILITY FOR PROMOTION AS A CAREER LADDER
PROMOTION. IT WAS STIPULATED
THAT, BUT FOR THE ERROR, MS. LEVY WOULD HAVE HAD THE PROMOTIONAL
INCREASE AS OF MARCH 28,
1976. IT APPEARS TO THE ARBITRATOR TO BE COLD COMFORT TO THE
GRIEVANT THAT RETROACTIVITY WAS
REQUESTED BY THE OPERATING MANAGEMENT BUT DECLINED ONLY BECAUSE
REGIONAL PERSONNEL MANAGEMENT
HAD NO RECORD OF RECEIPT OF THE ORIGINAL FORM PREPARED AND APPROVED
BY THAT SAME OPERATING
MANAGEMENT. WHERE, AS HERE, IT IS CLEAR THAT THIS WAS NOT AN
OPTIONAL PROMOTION BUT WAS A
PART OF A CAREER LADDER PROGRAM IN WHICH HER COLLEAGUES AS WELL AS
MS. LEVY WERE TO BE
PROMOTED AS OF A DATE CERTAIN, THE IMPROPER RETROACTIVITY WHICH THE
CIVIL SERVICE AND
COMPTROLLER GENERAL RULES APPEARS TO BE AIMED AT PREVENTING WOULD NOT
SEEM TO HAVE THE SAME
CHARACTERISTICS. IN THE OPINION OF THIS ARBITRATOR, A LASTING
INEQUITY RESULTS FROM THE
APPLICATION OF THE NO-RETROACTIVITY PROVISION IN EXACTLY THE SAME
MANNER FOR CAREER LADDER
PROMOTIONS AS FOR OTHER PROMOTIONS WHICH MIGHT REQUIRE THE ADDED
PROTECTIONS. THERE DOES NOT
APPEAR TO BE ANY DOUBT THAT THE INTERPRETATION GIVEN BY THE EMPLOYER
CONSTITUTES A CONTINUING
VIOLATION OF ARTICLE XXV, SECTION 12 OF THE AGREEMENT."
THE ARBITRATOR STATED THAT SHE BELIEVED THIS GRIEVANCE TO BE
DISTINGUISHABLE FROM THE COMPTROLLER GENERAL'S DECISION IN B-180046,
SUPRA, NOT ONLY BECAUSE OF THE DIFFERENCE IN THE KIND OF PROMOTION
INVOLVED, BUT FOR OTHER REASONS AS WELL. THE ARBITRATOR'S OPINION
CONTINUED AS FOLLOWS:
" * * * THERE IS HERE CLEAR AND COMPELLING EVIDENCE OF CLERICAL OR
ADMINISTRATIVE
ERROR. MS. LEVY HAD INQUIRED IN ADVANCE ABOUT HER PROMOTION, WAS
TOLD IT WAS IN PROCESS. THE
ASSISTANT DISTRICT MANAGER TESTIFIED TO ITS PREPARATION AND ITS
TRANSMITTAL AS REQUIRED. THE
PERFORMANCE APPRAISAL SUPPORTING STATEMENTS ARE GLOWING, AND CONTAIN
NO NEGATIVE COMMENT. AS
A CAREER LADDER PROMOTION, THERE CAN BE NO DOUBT THAT MS. LEVY WOULD
HAVE RECEIVED THE
PROMOTION AS OF MARCH 28, 1976 BUT FOR THE ADMINISTRATIVE ERROR. IT
WAS STIPULATED AT THE
HEARING THAT ERROR OCCURRED. THERE IS NO BASIS UPON WHICH ONE CAN
DECIDE WHICH OF TWO
CONJECTURES IS VALID; BUT EITHER THE ORIGINAL FORM 52 WAS LOST
BEFORE IT REACHED THE REGIONAL
PERSONNEL OFFICE, OR IT WAS LOST AFTER IT REACHED THAT OFFICE AND
BEFORE IT WAS ACTED ON
THERE.
"FINALLY, IT SHOULD BE NOTED THAT THE ARBITRATOR READS THE
COMPTROLLER GENERAL'S DECISION
SUBMITTED AS EMPLOYER EXHIBIT 4 (B-180046, APRIL 11, 1974) AS
INDICATING THAT SOME RETROACTIVE
CORRECTION IS PERMISSIBLE. THUS, IN DISCUSSING THE GENERAL 'RULE',
THE DECISION STATES THAT
WHERE A PERSONNEL ACTION WAS NOT EFFECTED AS ORIGINALLY INTENDED, THE
ERROR MAY BE CORRECTED
RETROACTIVELY TO COMPLY WITH THE ORIGINAL INTENT, WITHOUT VIOLATING
THE RULE PROHIBITING
RETROACTIVE PROMOTIONS. SUBSEQUENT LANGUAGE APPEARS TO RAISE OTHER
QUESTIONS AS TO THE TIME
WHEN THE ERROR OCCURS, BUT DOES SO ON THE BASIS OF THE ESTABLISHMENT
OF THE INTENT OF THE
AGENCY. IT APPEARS TO THE ARBITRATOR THAT, FOR THE REASONS STATED
ABOVE, THE CLEAR INTENT OF
THE AGENCY TO PROMOTE HAS BEEN ESTABLISHED. WHETHER THE CORRECTION
OF ERROR MUST BE MADE BY
ONE DEPARTMENT OR ANOTHER OF THE AGENCY, SINCE THE ERROR IS FOUND TO
RESULT IN CONTRACT
VIOLATION IT APPEARS TO THE ARBITRATOR, AND SHE SO FINDS, THAT IT
MUST BE CORRECTED BY THE
AGENCY."
THE SOCIAL SECURITY ADMINISTRATION FILED A PETITION FOR REVIEW AND
STAY OF THE ARBITRATION AWARD WITH THE FEDERAL LABOR RELATIONS COUNCIL
(FLRC). IN DENYING THE PETITION FOR REVIEW AND FOR STAY OF THE AWARD,
THE COUNCIL SPECIFICALLY REJECTED THE AGENCY'S CONTENTION THAT THE AWARD
VIOLATES THE GENERAL RULE PROHIBITING RETROACTIVE PROMOTION, STATING:
"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
EXCEPTION TO THE AWARD
PRESENTS GROUNDS THAT THE AWARD VIOLATED APPLICABLE LAW AND
APPROPRIATE REGULATION. IN THIS
CASE, HOWEVER, THE COUNCIL IS OF THE OPINION THAT THE AGENCY'S
PETITION DOES NOT PRESENT FACTS
AND CIRCUMSTANCES NECESSARY TO SUPPORT ITS EXCEPTION THAT THE
ARBITRATOR'S AWARD VIOLATES
APPLICABLE LAW AND APPROPRIATE REGULATION. IN THIS REGARD, THE
COUNCIL HAS PREVIOUSLY NOTED
THAT, CONSISTENT WITH CIVIL SERVICE COMMISSION INSTRUCTIONS AND
COMPTROLLER GENERAL DECISION,
IT HAS BEEN ESTABLISHED THAT AN AGENCY MAY BE REQUIRED TO PROMOTE A
PARTICULAR INDIVIDUAL,
CONSISTENT WITH THE FEDERAL PERSONNEL MANUAL, AND ACCORD THAT
INDIVIDUAL BACKPAY, WHEN A
FINDING HAS BEEN MADE BY AN ARBITRATOR, OR OTHER COMPETENT AUTHORITY,
THAT SUCH INDIVIDUAL
WOULD DEFINITELY (AND IN ACCORDANCE WITH THE LAW, REGULATION AND/OR
THE NEGOTIATED AGREEMENT)
HAVE BEEN PROMOTED AS A PARTICULAR POINT IN TIME BUT FOR, AMONG OTHER
THINGS, AN AGENCY
VIOLATION OF ITS NEGOTIATED AGREEMENT. * * * AS NOTED PREVIOUSLY THE
ARBITRATOR SPECIFICALLY
FOUND THAT THE ERROR BY THE AGENCY CONSTITUTED A VIOLATION OF ARTICLE
XXV, SECTION 12 OF THE
NEGOTIATED AGREEMENT. MOREOVER, AS NOTED BY THE ARBITRATOR, IT WAS
STIPULATED THAT, BUT FOR
THE ERROR, THE GRIEVANT WOULD HAVE BEEN PROMOTED ON MARCH 28. THE
AGENCY'S ARGUMENT THAT THE
PROVISION FOUND TO BE VIOLATED, BECAUSE OF ITS LACK OF SPECIFICITY,
DOES NOT CONSTITUTE A
NONDISCRETIONARY AGENCY REQUIREMENT APPEARS TO CONSTITUTE NOTHING
MORE THAN DISAGREEMENT WITH
THE ARBITRATOR'S INTERPRETATION OF ARTICLE XXV, SECTION 12 OF THE
PARTIES' COLLECTIVE
BARGAINING AGREEMENT. IN THIS RESPECT, COUNCIL PRECEDENT IS CLEAR
THAT A CHALLENGE TO AN
ARBITRATOR'S INTERPRETATION OF A COLLECTIVE BARGAINING AGREEMENT IS
NOT A GROUND UPON WHICH
THE COUNCIL WILL GRANT REVIEW OF AN ARBITRATION AWARD. * * * "
THE ABOVE DISCUSSION IS AMPLIFIED BY THE FOLLOWING FOOTNOTE
SUGGESTING THAT DECISIONS OF THE OFFICE HAVE PERMITTED RETROACTIVE
PROMOTIONS UNDER SIMILAR CIRCUMSTANCES WHERE PROMOTION REQUESTS HAD NOT
BEEN APPROVED BY THE PROPERLY DELEGATED AGENCY OFFICIAL:
"IN SUPPORT OF ITS EXCEPTION THE AGENCY CITES DECISIONS OF THE
COMPTROLLER GENERAL
PROHIBITING RETROACTIVE PROMOTIONS WHEN THE OFFICIAL HAVING AUTHORITY
TO APPROVE THE PROMOTION
HAS NOT DONE SO. THE AGENCY ALLEGES THAT IN THE FACTS AND
CIRCUMSTANCES OF THE INSTANT CASE
THE OFFICIAL WITH THE APPROPRIATE DELEGATED AUTHORITY WAS THE
REGIONAL PERSONNEL OFFICER AND
THAT OFFICIAL HAD NOT APPROVED THE PROMOTION. HOWEVER, THE COUNCIL
NOTES THAT IN AT LEAST TWO
DECISIONS THE COMPTROLLER GENERAL HAS PERMITTED RETROACTIVE
PROMOTIONS IN CASES INVOLVING
VIOLATIONS OF COLLECTIVE BARGAINING AGREEMENT PROVISIONS EVEN THOUGH
THE APPROPRIATE AGENCY
OFFICIAL HAS NOT APPROVED THE PROMOTIONS. 55 COMP.GEN. 42(1975);
B-180010, AUGUST 30,
1976. THUS IN B-180010, AUGUST 30, 1976, INVOLVING A QUESTION OF
WHETHER AN EMPLOYEE WHOSE
PROMOTION WAS DELAYED COULD BE GIVEN A RETROACTIVE PROMOTION, AND IN
WHICH THE AGENCY INVOLVED
MADE ARGUMENTS BEFORE THE COMPTROLLER GENERAL SIMILAR TO THOSE MADE
BY THE AGENCY IN THE
INSTANT CASE, THE COMPTROLLER GENERAL CONCLUDED THAT '(S)INCE THE
ARBITRATOR HAS DETERMINED
THAT BUT FOR THE AGENCY'S UNDUE DELAY THE GRIEVANT WOULD HAVE BEEN
PROMOTED EARLIER, WE WOULD
HAVE NO OBJECTION TO PROCESSING A RETROACTIVE PROMOTION * * * AND
PAYING THE APPROPRIATE
BACKPAY."
REGARDING THE FLRC, WE STATED IN 54 COMP.GEN. 312, 317(1974):
" * * * WHEN AN AGENCY DOES CHOOSE TO FIRST FILE AN EXCEPTION WITH
THE COUNCIL, IF THE
COUNCIL IS UNSURE AS TO WHETHER THE ARBITRATION AWARD MAY PROPERLY BE
IMPLEMENTED IN
ACCORDANCE WITH THE DECISIONS OF THIS OFFICE, IT SHOULD EITHER SUBMIT
THE MATTER DIRECTLY TO
THIS OFFICE FOR DECISION OR, AFTER RULING ON ANY OTHER ISSUES
INVOLVED IN THE EXCEPTION WHICH
INVOLVE MATTERS NOT WITHIN THE JURISDICTION OF THIS OFFICE, IT SHOULD
INSTRUCT THE AGENCY
INVOLVED TO REQUEST A RULING FROM THIS OFFICE AS TO THE LEGALITY OF
IMPLEMENTATION OF THE
AWARD."
THAT DECISION CONCEDES THE FLRC'S AUTHORITY TO RULE ON QUESTIONS OF
THE LEGALITY OF IMPLEMENTATION OF AN AWARD IN THE FIRST INSTANCE WHILE
AT THE SAME TIME REAFFIRMING THE COMPTROLLER GENERAL'S STATUTORY
RESPONSIBILITY AS THE FINAL ADMINISTRATIVE AUTHORITY TO RULE ON
QUESTIONS OF THE PROPRIETY OF EXPENDITURES OF APPROPRIATED FUNDS.
UPON AN AGENCY'S REQUEST FOR DECISION OR REFERRAL OF THE MATTER BY
THE FLRC, WHERE WE HAVE FOUND THAT AN ARBITRATION AWARD VIOLATES
APPLICABLE LAW OR REGULATIONS WE HAVE HELD THAT THE AWARD MAY NOT BE
IMPLEMENTED. SEE 54 COMP.GEN. 921(1975); 55 ID. 183, 564, 1062(1975);
AND 56 ID. 57, 131(1976). ALTHOUGH IN THE INSTANT CASE, THE FLRC HAS
OPINED THAT THE AWARD DOES NOT VIOLATE APPLICABLE LAWS AND REGULATIONS,
HEW QUESTIONS THE CORRECTNESS OF THAT DETERMINATION. THEREFORE, THIS
OFFICE WILL GIVE FURTHER CONSIDERATION TO THE QUESTION OF WHETHER THE
AWARD CONTRAVENES THE RULE AGAINST RETROACTIVE PROMOTIONS.
AS A GENERAL RULE A PERSONNEL ACTION MAY NOT BE MADE RETROACTIVE SO
AS TO INCREASE THE RIGHT OF AN EMPLOYEE TO COMPENSATION. WE HAVE MADE
EXCEPTIONS TO THIS RULE WHERE ADMINISTRATIVE OR CLERICAL ERROR (1)
PREVENTED A PERSONNEL ACTION FROM BEING EFFECTED AS ORIGINALLY INTENDED,
(2) RESULTED IN NONDISCRETIONARY ADMINISTRATIVE REGULATIONS OR POLICIES
NOT BEING CARRIED OUT, OR (3) HAS DEPRIVED THE EMPLOYEE OF A RIGHT
GRANTED BY STATUTE OR REGULATION. SEE 55 COMP.GEN. 42(1975), 54 ID.
888(1975), AND DECISIONS CITED THEREIN.
WITH RESPECT TO DELAYS OR OMISSIONS IN PROCESSING OF PROMOTION
REQUESTS THAT WILL BE REGARDED AS ADMINISTRATIVE OR CLERICAL ERRORS THAT
WILL SUPPORT RETROACTIVE PROMOTION, APPLICABLE DECISIONS HAVE DRAWN A
DISTINCTION BETWEEN THOSE ERRORS THAT OCCUR PRIOR TO APPROVAL OF THE
PROMOTION BY THE PROPERLY AUTHORIZED OFFICIAL AND THOSE THAT OCCUR AFTER
SUCH APPROVAL BUT BEFORE THE ACTS NECESSARY TO EFFECTIVE PROMOTION HAVE
BEEN FULLY CARRIED OUT. THE RULE IS AS STATED IN B-180046, QUOTED
ABOVE. SEE ALSO 54 COMP. GEN. 539(1974); B-1833969, JULY 2, 1975; AND
B-184817, NOVEMBER 28, 1975. THE RATIONALE FOR DRAWING THIS DISTINCTION
IS THAT THE INDIVIDUAL WITH AUTHORITY TO APPROVE PROMOTION REQUESTS ALSO
HAS THE AUTHORITY NOT TO APPROVE ANY SUCH REQUEST UNLESS HIS EXERCISE OF
DISAPPROVAL AUTHORITY IS OTHERWISE CONSTRAINED BY STATUTE,
ADMINISTRATIVE POLICY OR REGULATION. THUS, WHERE THE DELAY OR OMISSION
OCCURS BEFORE THAT OFFICIAL HAS HAD THE OPPORTUNITY TO EXERCISE HIS
DISCRETION WITH RESPECT TO APPROVAL OR DISAPPROVAL, ADMINISTRATIVE
INTENT TO PROMOTE AT ANY PARTICULAR TIME CANNOT BE ESTABLISHED OTHER
THAN BY AFTER-THE-FACT STATEMENTS AS TO WHAT THAT OFFICIAL STATES WOULD
HAVE BEEN HIS DETERMINATION. AFTER THE AUTHORIZED OFFICIAL HAS
EXERCISED HIS AUTHORITY BY APPROVING THE PROMOTION REQUEST, ALL THAT
REMAINS TO EFFECTUATE THAT PROMOTION IS A SERIES OF MINISTERIAL ACTS
WHICH COULD BE COMPELLED BY WRIT OF MANDAMUS. IN THAT CATEGORY OF CASE,
ADMINISTRATIVE INTENT CAN BE ASCERTAINED WITH CERTAINTY AND RETROACTIVE
PROMOTION AS A REMEDY FOR FAILURE TO ACCOMPLISH THOSE MINISTERIAL ACTS
IS APPROPRIATE.
THE ARBITRATOR IS OF THE OPINION THAT THE PERSUASIVENESS OF THE
SHOWING OF ERROR IS ONE FACTOR THAT MILITATES TOWARD AN EXCEPTION TO
THIS RULE. WE NOTE THAT IN B-183969, SUPRA, HEW ITSELF REQUESTED
AUTHORIZATION TO RETROACTIVELY EFFECT 300 PROMOTIONS, MOSTLY CAREER
LADDER PROMOTIONS, BASED ON A BREAKDOWN IN PROCEDURES WHICH RESULTED IN
A FAILURE TO PROCESS PROMOTION REQUESTS. IN MOST CASES OF RETROACTIVE
PROMOTION REQUESTS, AS IN B-183969, THE SHOWING OF ERROR IS CLEAR AND
CERTAINLY CAN BE NO MORE CONVINCING THAN WHERE THE DEPARTMENT OR AGENCY
ITSELF CONCEDES THE ERROR AND INITIATES ACTION TO EFFECT CORRECTION.
THUS, WE DO NOT CONCUR IN THE ARBITRATOR'S RELIANCE ON THIS FACTOR.
THE OTHER FACTOR WHICH THE ARBITRATOR FINDS DISTINGUISHES MS. LEVY'S
CASE AND PERMITS RETROACTIVE PROMOTION IS THE FACT THAT HERS WAS A
CAREER LADDER POSITION. THE ARBITRATOR STATES THAT HERS WAS NOT AN
"OPTIONAL PROMOTION BUT PART OF A CAREER LADDER PROGRAM IN WHICH HER
COLLEAGUES AS WELL AS MS. LEVY WERE TO BE PROMOTED AS OF A DATE
CERTAIN." THE ARBITRATOR SPECIFICALLY FINDS THAT THIS DIFFERENCE IN THE
KIND OF PROMOTION "HAS MEANING" AND, FROM A CAREFUL READING OF THE
ARBITRATOR'S OPINION, IT APPEARS THAT THIS PERCEIVED DISTINCTION IS THE
TOUCHSTONE FOR THE AWARD.
WE NOTE THAT THE OPINION DOES NOT SPECIFICALLY REFER TO ANY
REGULATION, INSTRUCTION OR POLICY OF EITHER HEW OR THE SSA MAKING CAREER
LADDER PROMOTIONS OBLIGATORY AND, IN FACT, THE PARTIES' AGREEMENT
APPEARS TO CONFIRM THE NONEXISTENCE OF ANY SUCH REQUIREMENT BY ITS
RESERVATION FOR FURTHER NEGOTIATIONS OF THE MATTER OF CAREER LADDER
PROMOTIONS. ARTICLE XXXVI, SECTION 14, OF THE AGREEMENT PROVIDES:
"IN THE EVENT THE EMPLOYER OBTAINS AUTHORITY TO NEGOTIATE THE
EFFECTIVE DATE OF CAREER
LADDER PROMOTIONS, THE PARTIES AGREE TO NEGOTIATE A SUPPLEMENT TO THE
GENERAL AGREEMENT."
IN THE ABSENCE OF ANY SUCH ADMINISTRATIVE REGULATION, INSTRUCTION, OR
POLICY, CAREER LADDER PROMOTIONS ARE NOT MANDATORY. SUBCHAPTER 4-2B(2)
OF CHAPTER 335 OF THE FEDERAL PERSONNEL MANUAL SPECIFICALLY PROVIDES
THAT AN AGENCY MAY MAKE SUCCESSIVE CAREER LADDER PROMOTIONS:
"(2) CAREER LADDER POSITION. AN AGENCY MAY MAKE SUCCESSIVE CAREER
PROMOTIONS OF AN
EMPLOYEE UNTIL HE REACHES THE FULL PERFORMANCE LEVEL IN A CAREER
LADDER IF HE IS ONE OF A
GROUP IN WHICH ALL EMPLOYEES ARE GIVEN GRADE-BUILDING EXPERIENCE AND
ARE PROMOTED AS THEY
DEMONSTRATE ABILITY TO PERFORM AT THE NEXT HIGHER LEVEL, AND IF THERE
IS ENOUGH WORK AT THE
FULL PERFORMANCE LEVEL FOR ALL EMPLOYEES IN THE GROUP. * * * "
IN B-168715, JANUARY 22, 1970,WE HELD THAT EMPLOYEES IN SUCH
POSITIONS HAVE NO VESTED RIGHT TO BE PROMOTED AT ANY SPECIFIC TIME AND
THAT THE DATES OF SUCH PROMOTIONS WERE WITHIN THE DISCRETIONARY
AUTHORITY OF THE OFFICIAL HAVING PROMOTION APPROVAL AUTHORITY. THE FACT
THAT CAREER LADDER EMPLOYEES HAVE NO VESTED RIGHT TO PROMOTION IN THE
ABSENCE OF A MANDATORY ADMINISTRATIVE REGULATION, INSTRUCTION OR POLICY
OR PROVISION IN A COLLECTIVE BARGAINING AGREEMENT WAS RECENTLY
REAFFIRMED IN MATTER OF ADRIENNE AHEARN, B-186649, JANUARY 3, 1977.
COMPARE MATTER OF JOSEPH POMPEO, B-186916, APRIL 25, 1977, WHERE
RETROACTIVE PROMOTIONS WERE UPHELD BASED ON THE EXISTENCE OF AN AGENCY
POLICY MANDATING PROMOTION WHERE THERE HAD BEEN CERTIFICATION THAT A
CAREER LADDER EMPLOYEE WAS PERFORMING AT AN ACCEPTABLE LEVEL OF
COMPETENCE.
THUS, WE DISAGREE WITH THE ARBITRATOR'S CONCLUSION THAT UNDER
PERTINENT REGULATIONS AND DECISIONS INITIATION OF A PROMOTION REQUEST
WITHOUT APPROVAL BY THE AUTHORIZED OFFICIAL ESTABLISHES AGENCY INTENT TO
PROMOTE WITHIN THE CONTEXT OF THE ADMINISTRATIVE ERROR RULE DISCUSSED
ABOVE AND THAT THOSE AUTHORITIES DO NOT APPLY TO CAREER LADDER
PROMOTIONS WHERE ERROR IS ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE.
THE FLRC, IN DENYING THE SSA'S REQUEST FOR REVIEW SUGGESTS THAT THERE
IS AN ALTERNATIVE BASIS UPON WHICH THE ARBITRATION AWARD CAN BE UPHELD.
AS INDICATED BY THE ABOVE-QUOTED LANGUAGE FROM ITS DECISION, THE FLRC IS
OF THE OPINION THAT DECISIONS OF THIS OFFICE, SPECIFICALLY 55 COMP.GEN.
42(1975), AND B-180010, AUGUST 3, 1976, PERMIT RETROACTIVE PROMOTION
WHERE THERE HAS BEEN A DETERMINATION OF ERROR ON THE AGENCY'S PART
AMOUNTING TO A VIOLATION OF A NEGOTIATED AGREEMENT AND WHERE, BUT FOR
THAT ERROR, THE EMPLOYEE WOULD HAVE BEEN PROMOTED ON A SPECIFIC DATE.
NOTING THAT THE ARBITRATOR SPECIFICALLY FOUND THAT BUT FOR LOSS OF THE
PROMOTION REQUEST MS. LEVY WOULD HAVE BEEN PROMOTED ON MARCH 28 AND THAT
SUCH LOSS CONSTITUTED A VIOLATION OF ARTICLE XXV, SECTION 12, OF THE
AGREEMENT, THE FLRC FINDS A BASIS FOR SUSTAINING THE AWARD.
AS INDICATED ABOVE, ONE EXCEPTION TO THE RULE PROHIBITING RETROACTIVE
PROMOTION IS WHERE THE FAILURE TO PROMOTE CONSTITUTES VIOLATION OF A
NONDISCRETIONARY REGULATION OR POLICY. WE HAVE RECOGNIZED THAT AN
AGENCY, BY AGREEING TO A PROVISION OF A COLLECTIVE BARGAINING AGREEMENT
MAY, AS WELL AS BY ITS OWN PROMULGATION OF REGULATIONS AND INSTRUCTIONS,
LIMIT ITS DISCRETION TO SUCH A DEGREE THAT IT BECOMES MANDATORY UNDER
CERTAIN CONDITIONS TO PROMOTE CLASSES OF EMPLOYEES. IN BOTH 55
COMP.GEN. 42, SUPRA, AND B-180010, SUPRA, THE COLLECTIVE BARGAINING
AGREEMENTS CONTAINED PROVISIONS MANDATING PROMOTION OF CAREER LADDER
EMPLOYEES. IN 55 COMP.GEN. 42, SUPRA, THE AGREEMENT INCLUDED THE
FOLLOWING SPECIFIC PROVISION:
"ALL EMPLOYEES IN CAREER LADDER POSITIONS WILL BE PROMOTED ON THE
FIRST PAY PERIOD AFTER A
PERIOD OF ONE YEAR OR WHATEVER LESSER PERIOD MAY BE APPLICABLE
PROVIDED THE EMPLOYER HAS
CERTIFIED THAT THE EMPLOYEE IS CAPABLE OF SATISFACTORILY PERFORMING
AT THE NEXT HIGHER LEVEL."
THE ARBITRATOR IN THAT CASE FOUND THAT THE INTERNAL REVENUE SERVICE
HAD VIOLATED THAT PROVISION IN DELAYING PROMOTIONS OF SEVEN EMPLOYEES
FOR UP TO 2 MONTHS. IN UPHOLDING THE ARBITRATION AWARD, WE STATED:
" * * * OUR RECENT DECISIONS CONSIDERING THE LEGALITY OF IMPLEMENTING
BINDING ARBITRATION
AWARDS, WHICH RELATE TO FEDERAL EMPLOYEES COVERED BY
COLLECTIVE-BARGAINING AGREEMENTS, HAVE
HELD THAT THE PROVISIONS OF SUCH AGREEMENTS MAY CONSTITUTE
NONDISCRETIONARY AGENCY POLICIES IF
CONSISTENT WITH APPLICABLE LAWS AND REGULATIONS, INCLUDING EXECUTIVE
ORDER 11491, AS
AMENDED. THEREFORE, WHEN AN ARBITRATOR ACTING WITHIN PROPER
AUTHORITY AND CONSISTENT WITH
APPLICABLE LAWS AND COMPTROLLER GENERAL DECISIONS, DECIDES THAT AN
AGENCY HAS VIOLATED AN
AGREEMENT, THAT SUCH VIOLATION DIRECTLY RESULTS IN A LOSS OF PAY, AND
AWARDS BACKPAY TO REMEDY
THAT LOSS, THE AGENCY HEAD CAN LAWFULLY IMPLEMENT A BACKPAY AWARD FOR
THE PERIOD DURING WHICH
THE EMPLOYEE WOULD HAVE RECEIVED THE PAY BUT FOR THE VIOLATION, SO
LONG AS THE RELEVANT
PROVISION IS PROPERLY INCLUDABLE IN THE AGREEMENT. * * * "
THERE, RETROACTIVE PROMOTIONS WERE PROPERLY AWARDED BASED UPON THE
ARBITRATOR'S FINDING THAT THE DELAYS IN THE PROMOTIONS VIOLATED A
NONDISCRETIONARY AGENCY POLICY. SEE ALSO 54 COMP.GEN. 888(1975). IN
B-180010, SUPRA, THE AWARD OF RETROACTIVE PROMOTION WAS PARTIALLY UPHELD
BASED ON THE ARBITRATOR'S FINDING THAT THE AGENCY HAD VIOLATED THE
NONDISCRETIONARY POLICY TO WHICH IT HAD SUBSCRIBED IN THE COLLECTIVE
BARGAINING AGREEMENT MANDATING, RATHER THAN PERMITTING, PROMOTION OF
CERTAIN CAREER LADDER EMPLOYEES WHEN THEY HAD MET THE QUALIFICATIONS OF
THE POSITION, DEMONSTRATED ABILITY TO PERFORM AT THE HIGHER LEVEL AND
PROVIDED THERE WAS ENOUGH WORK AT THE FULL PERFORMANCE LEVEL FOR ALL
EMPLOYEES IN THE CAREER LADDER GROUP. THUS, NOT EVERY VIOLATION OF A
COLLECTIVE BARGAINING AGREEMENT WILL SUPPORT THE AWARD OF A RETROACTIVE
PROMOTION, BUT ONLY VIOLATION OF A NONDISCRETIONARY AGENCY POLICY. SEE
55 COMP.GEN. 427(1975), AND 54 COMP.GEN. 403(1974).
THE FLRC SUGGESTS THAT THE ARBITRATOR'S FINDING THAT SSA VIOLATED
ARTICLE XXV, SECTION 12, OF THE AGREEMENT AMOUNTS TO A FINDING OF
VIOLATION OF SUCH A MANDATORY AGENCY REQUIREMENT. HAVING REVIEWED THE
ARBITRATOR'S OPINION WE ARE UNABLE TO FIND THAT SHE SPECIFICALLY
CONSTRUED ARTICLE XXV, SECTION 12, AS MANDATING PROMOTION OF CAREER
LADDER EMPLOYEES AT ANY SPECIFIC TIME. RATHER, SHE APPEARS TO HAVE
CONCLUDED THAT THE INEQUITY THAT WOULD RESULT FROM FAILURE TO
RETROACTIVELY PROMOTE THE EMPLOYEE VIOLATES THE GENERAL CONCEPT OF EQUAL
PAY FOR EQUAL WORK AS INCORPORATED IN THE AGREEMENT. MOREOVER, WE DO
NOT BELIEVE THAT THE ARBITRATOR COULD SPECIFICALLY FIND THAT THE
LANGUAGE OF THAT SECTION CONSTITUTES A NONDISCRETIONARY AGENCY POLICY
MANDATING PROMOTION OF CAREER LADDER EMPLOYEES WITHIN ANY SPECIFIC
TIMEFRAME.
IN INTERPRETING THE LANGUAGE OF A COLLECTIVE BARGAINING AGREEMENT,
THE ARBITRATOR IS BOUND BY APPLICABLE LAWS AND REGULATIONS. WHERE A
PARTICULAR PROVISION DOES NOTHING MORE THAN INCORPORATE CONTROLLING LAWS
AND REGULATIONS INTO THE AGREEMENT, THE ARBITRATOR IS NOT FREE TO
DISREGARD ADMINISTRATIVE AND JUDICIAL CONSTRUCTION OF SUCH PROVISION AND
THE OBLIGATION OF THIS OFFICE TO DETERMINE WHETHER THE AGREEMENT, AS
CONSTRUED BY THE ARBITRATOR, VIOLATES APPLICABLE LAWS AND REGULATIONS
EXTENDS TO A CONSIDERATION OF THE ARBITRATOR'S INTERPRETATION OF SUCH
SPECIFIC PROVISION.
THE LANGUAGE OF ARTICLE XXV, SECTION 12, IN SUBSTANCE, IS MERELY A
RESTATEMENT OF THE FOLLOWING PROVISION OF THE CLASSIFICATION ACT AS
CODIFIED AT 5 U.S.C. 5101(1970):
"SEC. 5101. PURPOSE
"IT IS THE PURPOSE OF THIS CHAPTER TO PROVIDE A PLAN FOR
CLASSIFICATION OF POSITIONS
WHEREBY--
"(1) IN DETERMINING THE RATE OF BASIC PAY WHICH AN EMPLOYEE WILL
RECEIVE--
"(A) THE PRINCIPLE OF EQUAL PAY FOR SUBSTANTIALLY EQUAL WORK WILL BE
FOLLOWED; AND
"(B) VARIATIONS IN RATES OF BASIC PAY PAID TO DIFFERENT EMPLOYEES
WILL BE IN PROPORTION TO
SUBSTANTIAL DIFFERENCES IN THE DIFFICULTY, RESPONSIBILITY, AND
QUALIFICATION REQUIREMENTS OF
THE WORK PERFORMED AND TO THE CONTRIBUTIONS OF EMPLOYEES TO
EFFICIENCY AND ECONOMY IN THE
SERVICE * * * ."
THAT LANGUAGE SETS FORTH A BASIC PRECEPT OF THE POSITION
CLASSIFICATION SYSTEM ESTABLISHED IN 1949. ODIAN V. UNITED STATES, 203
CT.CL. 321(1973). EVEN WITH RESPECT TO CLASSIFICATION ACTIONS, THE
ARGUMENT HAS BEEN JUDICIALLY REJECTED THAT THE PRINCIPLE OF EQUAL PAY
FOR EQUAL WORK MANDATES THE UPGRADING OF POSITIONS AT ANY SPECIFIC DATE,
BRECH V. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, 362
F.SUPP. 914(1973), MUCH LESS THAT IT PERMITS PAYMENT OF BACKPAY AS A
REMEDY FOR FAILURES TO TIMELY RECLASSIFY, HANEKE V. SECRETARY OF HEALTH,
EDUCATION AND WELFARE, 535 F.2D 1291(1976). THE FACT THAT SUBSTANTIALLY
SIMILAR LANGUAGE IS INCORPORATED INTO A COLLECTIVE BARGAINING AGREEMENT
DOES NOT, IN OUR OPINION, GIVE THE ARBITRATOR AUTHORITY TO NOW FIND THAT
LANGUAGE OF A LAW THAT HAS BEEN IN EXISTENCE SINCE 1949 MANDATES CAREER
LADDER PROMOTIONS, GIVEN THE ABOVE COURT DECISIONS AND THE FACT THAT
DECISIONS OF THIS OFFICE POSTDATING 1949 HAVE REPEATEDLY HELD THAT
EMPLOYEES, AND IN PARTICULAR CAREER LADDER EMPLOYEES, HAVE NO VESTED
RIGHT TO PROMOTION.
ACCORDINGLY, WE HOLD THAT HEW MAY NOT COMPLY WITH THE ARBITRATOR'S
AWARD OF RETROACTIVE PROMOTION AND BACKPAY TO MS. LEVY.
DEPUTY COMPTROLLER GENERAL
OF THE UNITED STATES
/1/ ARTICLE XXV (EQUAL EMPLOYMENT OPPORTUNITY), SECTION 12 PROVIDES:
THE EMPLOYER AND THE UNION AGREE TO THE PRINCIPLE OF EQUAL PAY FOR
SUBSTANTIALLY EQUAL WORK
AS WELL AS PROVIDING DISTINCTIONS IN PAY THAT ARE CONSISTENT WITH
DISTINCTIONS IN WORK AND
WORK PERFORMANCE.
/2/ THE COMPTROLLER GENERAL'S DECISION IS ATTACHED AS AN APPENDIX.
/3/ THE PERTINENT PROVISION OF THE ACT IS CODIFIED AT 5 U.S.C.
5101(1976).
/4/ MATTER OF: JOHN CAHILL-- ARBITRATION AWARD OF RETROACTIVE
PROMOTION AND BACKPAY, B-192455, NOVEMBER 1, 1978.
6 FLRC 1002; FLRC NO. 76A-144; DECEMBER 22, 1978.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2327
AND
SOCIAL SECURITY ADMINISTRATION,
PHILADELPHIA DISTRICT
FLRC NO. 76A-144
DECISION ON APPEAL FROM ARBITRATION AWARD
(SYNOPSIS) FLRC NO. 76A-144
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2327 AND SOCIAL
SECURITY ADMINISTRATION, PHILADELPHIA DISTRICT (QUINN, ARBITRATOR). THE
ARBITRATOR FOUND THAT THE AGENCY VIOLATED THE NEGOTIATED AGREEMENT BY
FAILING TO TIMELY PROMOTE THE GRIEVANT BECAUSE OF AN ADMINISTRATIVE
MISTAKE, AND, AS A REMEDY, ORDERED THAT THE GRIEVANT'S PROMOTION BE MADE
RETROACTIVE TO AN EARLIER DATE, WITH BACKPAY. THE COUNCIL INITIALLY
DENIED THE AGENCY'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 (5 FLRC 474), BUT SUBSEQUENTLY GRANTED THE AGENCY'S
REQUEST FOR RECONSIDERATION OF THAT DECISION, IN LIGHT OF THE
COMPTROLLER GENERAL'S DECISION IN MATTER OF: JANICE LEVY-- ARBITRATION
AWARD OF RETROACTIVE PROMOTION AND BACKPAY, B-190408, DECEMBER 21, 1977.
THEREAFTER, THE COUNCIL ACCEPTED THE AGENCY'S PETITION FOR REVIEW
INSOFAR AS IT RELATED TO THE EXCEPTION ALLEGING THAT THE AWARD VIOLATED
APPLICABLE LAW AND APPROPRIATE REGULATION. THE COUNCIL ALSO GRANTED THE
AGENCY'S REQUEST FOR A STAY. (REPORT NO. 149)
COUNCIL ACTION (DECEMBER 22, 1978). BASED UPON A DECISION OF THE
COMPTROLLER GENERAL RENDERED IN RESPONSE TO THE COUNCIL'S REQUEST, THE
COUNCIL FOUND THAT THE ARBITRATOR'S AWARD OF RETROACTIVE PROMOTION AND
BACKPAY VIOLATED APPLICABLE LAW AND APPROPRIATE REGULATION.
ACCORDINGLY, PURSUANT TO SECTION 2411.37(B) OF ITS RULES OF PROCEDURE,
THE COUNCIL MODIFIED THE ARBITRATOR'S AWARD BY STRIKING THE PORTION
THEREOF FOUND VIOLATIVE OF APPLICABLE LAW AND APPROPRIATE REGULATION.
AS SO MODIFIED, THE COUNCIL SUSTAINED THE AWARD AND VACATED THE STAY
WHICH IT HAD PREVIOUSLY GRANTED.
BACKGROUND OF CASE
ACCORDING TO THE ARBITRATOR'S AWARD AND THE RECORD BEFORE THE
COUNCIL, THIS DISPUTE INVOLVES A CAREER LADDER PROMOTION FROM GS-7 TO
GS-9. THE GRIEVANT MET THE REQUIREMENTS FOR A CAREER LADDER PROMOTION
AS OF NOVEMBER 23, 1975. IN SEPTEMBER 1975 HE WAS RECOMMENDED FOR THE
PROMOTION BY HIS BRANCH MANAGER AND THE REQUIRED REQUEST FOR PROMOTION
ACTION WAS PREPARED AND FORWARDED TO THE SOCIAL SECURITY ADMINISTRATION
(SSA) REGIONAL STAFF FOR FURTHER PROCESSING TO THE DEPARTMENT OF HEALTH,
EDUCATION, AND WELFARE (HEW) REGIONAL PERSONNEL OFFICE WHERE FINAL
AUTHORITY TO APPROVE PROMOTION REQUESTS RESTS. HOWEVER, HE WAS NOT
PROMOTED AT THIS TIME BECAUSE NEITHER THE SSA REGIONAL STAFF NOR THE HEW
REGIONAL PERSONNEL OFFICE HAD A RECORD OF RECEIVING THE PROMOTION
REQUEST. AFTER AN INVESTIGATION INTO THE MATTER, THE GRIEVANT'S
PROMOTION WAS AGAIN RECOMMENDED AND HE WAS PROMOTED EFFECTIVE FEBRUARY
1, 1976. THE ACTIVITY'S REQUEST THAT THE GRIEVANT'S PROMOTION BE MADE
RETROACTIVE TO NOVEMBER 23 DUE TO ADMINISTRATIVE ERROR WAS REJECTED ON
THE BASIS THAT THERE WAS NO AUTHORITY FOR A RETROACTIVE PROMOTION
WITHOUT A RECORD OF RECEIPT BY THE APPOINTING AUTHORITY OF THE PROMOTION
REQUEST. THE GRIEVANT FILED A GRIEVANCE BECAUSE OF THE DELAY IN HIS
PROMOTION AND IT WAS ULTIMATELY SUBMITTED TO ARBITRATION.
THE ARBITRATOR STATED THE "QUESTION-AT-ISSUE" AS FOLLOWS:
DID THE EMPLOYER VIOLATE THE COLLECTIVE BARGAINING AGREEMENT . . . BY
FAILURE TO TIMELY
PROMOTE (THE GRIEVANT) ON THE DATE HE WOULD HAVE BEEN PROMOTED EXCEPT
FOR ADMINISTRATIVE
FAILURE TO TIMELY PROCESS THE PROMOTION ACTION?
THE ARBITRATOR CONCLUDED THAT ALL THE FACTS IN THE CASE INDICATED AN
ADMINISTRATIVE MISTAKE AT THE REGIONAL PERSONNEL OFFICE AND THAT SUCH A
MISTAKE CONSTITUTED A VIOLATION OF THE MERIT PROMOTION PROVISION OF THE
NEGOTIATED AGREEMENT /1/ IN THAT "MERIT PROMOTION PRINCIPLES WERE NOT
APPLIED IN A CONSISTENT MANNER AND THE GRIEVANT WAS NOT TREATED WITH
EQUITY BECAUSE SOMEONE MISPLACED THE PROPER AND TIMELY REQUEST FOR
PERSONNEL ACTION." ACCORDINGLY, THE ARBITRATOR ANSWERED THE
"QUESTION-AT-ISSUE" AFFIRMATIVELY AND SUSTAINED THE GRIEVANCE. AS A
REMEDY THE ARBITRATOR ORDERED THAT THE GRIEVANT'S PROMOTION BE MADE
RETROACTIVE TO NOVEMBER 23, 1975, WITH BACKPAY.
AGENCY'S APPEAL TO THE COUNCIL
THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD WITH
THE COUNCIL. THE COUNCIL INITIALLY DENIED THE AGENCY'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. 5 FLRC 474
(FLRC NO. 76A-144 (JUNE 7, 1977), REPORT NO. 128). HOWEVER, SUBSEQUENT
TO THE COUNCIL'S DECISION DENYING THE PETITION FOR REVIEW, THE
COMPTROLLER GENERAL ISSUED HIS DECISION IN MATTER OF: JANICE LEVY--
ARBITRATION AWARD OF RETROACTIVE PROMOTION AND BACKPAY, B-190408,
DECEMBER 21, 1977. BECAUSE THE COMPTROLLER GENERAL'S DECISION WAS OF
PRECEDENTIAL SIGNIFICANCE WITH REGARD TO THE AGENCY'S PETITION FOR
REVIEW, THE COUNCIL GRANTED THE AGENCY'S REQUEST FOR RECONSIDERATION OF
THE COUNCIL'S DECISION OF JUNE 7, 1977, DENYING REVIEW AND, UPON
RECONSIDERATION, IN LIGHT OF THE COMPTROLLER GENERAL'S DECISION IN
JANICE LEVY, ACCEPTED THE AGENCY'S PETITION FOR REVIEW INSOFAR AS IT
RELATED TO THE AGENCY'S EXCEPTION WHICH ALLEGES THAT THE AWARD VIOLATES
APPLICABLE LAW AND APPROPRIATE REGULATION. THE COUNCIL ALSO GRANTED THE
AGENCY'S REQUEST FOR A STAY OF THE AWARD. THE UNION FILED A BRIEF ON
THE MERITS.
OPINION
SECTION 2411.37(A) OF THE COUNCIL'S RULES OF PROCEDURE PROVIDES:
(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 NOTED, THE COUNCIL ACCEPTED THE AGENCY'S PETITION FOR
REVIEW INSOFAR AS IT RELATED TO THE AGENCY'S EXCEPTION WHICH ALLEGES
THAT THE AWARD VIOLATES APPLICABLE LAW AND APPROPRIATE REGULATION.
BECAUSE THIS CASE INVOLVES AN ISSUE WITHIN THE JURISDICTION OF THE
COMPTROLLER GENERAL'S OFFICE AND BECAUSE THE COUNCIL WAS UNCERTAIN IN
VIEW OF JANICE LEVY AS TO THE APPLICABILITY OF PRIOR COMPTROLLER GENERAL
DECISIONS TO THE FACTS OF THIS CASE, THE COUNCIL REQUESTED FROM THE
COMPTROLLER GENERAL A DECISION AS TO WHETHER THE ARBITRATOR'S AWARD IN
THIS CASE VIOLATES APPLICABLE LAW OR APPROPRIATE REGULATION. THE
COMPTROLLER GENERAL'S DECISION IN THE MATTER, B-192455, NOVEMBER 1,
1978, IS SET FORTH BELOW.
BY LETTER DATED JULY 18, 1978, THE FEDERAL LABOR RELATIONS COUNCIL
(FLRC) REQUESTED A
DECISION AS TO THE LEGALITY OF THE ARBITRATION AWARD RENDERED
SEPTEMBER 16, 1976, IN AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2327 AND SOCIAL SECURITY
ADMINISTRATION,
PHILADELPHIA DISTRICT (QUINN, ARBITRATOR), FLRC NO. 76A-144. THE
AWARD OF RETROACTIVE
PROMOTION AND BACKPAY WAS GRANTED BY THE ARBITRATOR AS A REMEDY FOR
THE FAILURE OF THE SOCIAL
SECURITY ADMINISTRATION (SSA) TO TIMELY PROCESS MR. JOHN CAHILL'S
PROMOTION REQUEST.
THE FLRC HAD INITIALLY, ON JUNE 7, 1977, DENIED THE AGENCY'S PETITION
FOR REVIEW OF THE
AWARD BECAUSE IT FAILED TO MEET THE COUNCIL'S REQUIREMENTS FOR REVIEW
SET FORTH IN 5
C.F.R. 2411.32. SUBSEQUENT TO THE COUNCIL'S DENIAL OF REVIEW, WE
ISSUED A DECISION IN MATTER
OF JANICE LEVY, B-190408, DECEMBER 21, 1977, WHICH INVALIDATED AN
ARBITRATOR'S AWARD ISSUED
UNDER SIMILAR CIRCUMSTANCES. BASED ON THAT DECISION, THE SSA ASKED
THE FLRC TO RECONSIDER ITS
DENIAL OF REVIEW IN THE PRESENT CASE.
THE COUNCIL GRANTED THE AGENCY'S REQUEST FOR RECONSIDERATION AND
ACCEPTED ITS PETITION FOR
REVIEW OF THE ARBITRATOR'S AWARD. IN ITS LETTER OF JULY 18, 1978,
THE COUNCIL STATED:
" * * * THE COUNCIL DETERMINED THAT THE AGENCY'S REQUEST FOR
RECONSIDERATION SHOULD BE
GRANTED AND ITS PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD
ACCEPTED BECAUSE OF THE APPARENT
PRECEDENTIAL SIGNIFICANCE OF YOUR DECISION IN JANICE LEVY TO THE
FACTS OF THIS CASE AND
BECAUSE OF THE APPARENT DEPARTURE IN JANICE LEVY FROM THE GENERAL
PRINCIPLE ESTABLISHED IN
PREVIOUS DECISIONS OF YOUR OFFICE THAT A PROVISION IN A NEGOTIATED
AGREEMENT, IF OTHERWISE
PROPER, BECOMES A NONDISCRETIONARY AGENCY POLICY FOR PURPOSES OF
APPLYING THE PROVISIONS OF
THE BACK PAY ACT OF 1966.
"BECAUSE, AS INDICATED, THIS CASE INVOLVES AN ISSUE WITHIN THE
JURISDICTION OF YOUR OFFICE
AND SINCE THE COUNCIL IS UNCERTAIN, IN LIGHT OF THE DECISION IN
JANICE LEVY, AS TO THE
APPLICABILITY OF PRIOR COMPTROLLER GENERAL DECISIONS TO THE FACTS OF
THIS CASE, WE REQUEST
YOUR DECISION AS TO WHETHER THE ARBITRATOR'S AWARD IN THIS CASE
VIOLATES APPLICABLE LAW OR
APPROPRIATE REGULATION. * * * "
THE FACTS IN MR. CAHILL'S CASE ARE NOT IN DISPUTE. THE ARBITRATOR
FOUND THAT THE GRIEVANT MET THE REQUIREMENTS FOR A CAREER-LADDER
PROMOTION FROM GS-7 TO GS-9 AS OF NOVEMBER 23, 1975. HE WAS RECOMMENDED
FOR PROMOTION BY HIS BRANCH MANAGER AND THE REQUIRED REQUEST FOR
PROMOTION ACTION WAS PREPARED IN SEPTEMBER 1975 IN THE SSA DISTRICT
OFFICE IN PHILADELPHIA. THE REQUEST WAS FORWARDED TO THE SSA REGIONAL
STAFF FOR PROCESSING AND FORWARDING TO THE REGIONAL PERSONNEL OFFICE OF
THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW) WHERE FINAL
AUTHORITY TO APPROVE PROMOTION REQUESTS RESTS. HOWEVER, NEITHER THE SSA
REGIONAL STAFF NOR THE HEW REGIONAL PERSONNEL OFFICE HAVE ANY RECORD OF
RECEIVING MR. CAHILL'S PROMOTION REQUEST. AFTER AN INVESTIGATION INTO
THE PROCESSING DELAY AND AN ADMINISTRATIVE DETERMINATION THAT THERE WAS
NO AUTHORITY TO EFFECT MR. CAHILL'S PROMOTION ON A RETROACTIVE BASIS, HE
WAS PROSPECTIVELY PROMOTED TO GS-9 EFFECTIVE FEBRUARY 1, 1976.
MR. CAHILL GRIEVED HIS FAILURE TO BE TIMELY PROMOTED AND THE MATTER
WAS SUBMITTED TO ARBITRATION. BY AWARD DATED SEPTEMBER 16, 1976, THE
ARBITRATOR AWARDED MR. CAHILL A RETROACTIVE PROMOTION TO GS-9 WITH
BACKPAY, EFFECTIVE NOVEMBER 23, 1975, HAVING SPECIFICALLY FOUND:
" * * * ALL THE FACTS IN THIS CASE LEAD TO AN ADMINISTRATIVE MISTAKE
AT THE RECEIVING
DEPARTMENT OF THE REGIONAL PERSONNEL OFFICE (RPO). THE GRIEVANT MET
THE CONTRACTUAL AND
REGULATORY REQUIREMENTS FOR A MERIT PROMOTION. THE PROPERLY
COMPLETED AND TIMELY-FILED
REQUEST FOR PERSONNEL ACTION 'FELL THROUGH A BUREAUCRATIC CRACK' THAT
IS, WAS PROBABLY
CLERICALLY MISPLACED. WHEN THE MISTAKE WAS NOTED THE GRIEVANT WAS
PROMOTED-- BUT NO ONE WAS
ABLE TO PINPOINT THE ADMINISTRATIVE CAUSE(S) ('BUREAUCRATIC CRACK')
AND NO RETROACTIVITY WAS
AWARDED.
"THE FACTS BEFORE US, THE TESTIMONY AND EXHIBITS INTRODUCED INDICATE
A VIOLATION OF ARTICLE
6 (MERIT PROMOTION), SECTION 1. THE MERIT PROMOTION PRINCIPLES WERE
NOT APPLIED IN A
CONSISTENT MANNER AND THE GRIEVANT WAS NOT TREATED WITH EQUITY
BECAUSE SOMEONE MISPLACED THE
PROPER AND TIMELY REQUEST FOR PERSONNEL ACTION. * * * "
SECTION 1 OF ARTICLE 6 OF THE LABOR-MANAGEMENT AGREEMENT FOUND TO BE
VIOLATED BY THE ARBITRATOR IS AS FOLLOWS:
"SECTION 1. THE EMPLOYER AND THE UNION MUTUALLY AGREE THAT THE
PURPOSE AND INTENT OF THE
PROVISIONS CONTAINED HEREIN IS TO IMPLEMENT THE REGION'S MERIT
PROMOTION PLAN, WHICH WILL HELP
INSURE THAT MERIT PROMOTION PRINCIPLES ARE APPLIED IN A CONSISTENT
MANNER, WITH EQUITY TO ALL
EMPLOYEES."
AS NOTED ABOVE, THE ARBITRATOR IN THE INSTANT CASE FOUND THAT AN
ADMINISTRATIVE ERROR HAD RESULTED IN THE GRIEVANT'S NOT BEING PROMOTED
EFFECTIVE NOVEMBER 23, 1975; THAT THE MERIT PROMOTION PRINCIPLES WERE
NOT APPLIED IN A CONSISTENT MANNER AND THE GRIEVANT WAS NOT TREATED WITH
EQUITY; AND, THEREFORE, THAT ARTICLE 6, SECTION 1 OF THE
COLLECTIVE-BARGAINING AGREEMENT HAD BEEN VIOLATED. IN MR. CAHILL'S
CASE, AS IN THE JANICE LEVY CASE, THE MISPLACING OF THE GRIEVANT'S
PROMOTION REQUEST OCCURRED BEFORE THE AUTHORIZED OFFICIAL HAD EXERCISED
HIS AUTHORITY TO APPROVE OR DISAPPROVE THE PROMOTION. WITH RESPECT TO
DELAYS OR OMISSIONS IN PROCESSING A PROMOTION REQUEST THAT WILL SUPPORT
A RETROACTIVE PROMOTION AND AN AWARD OF BACKPAY UNDER 5 U.S.C. 5596, WE
EXPLAINED IN JANICE LEVY, SUPRA, PAGE 8:
"WITH RESPECT TO DELAYS OR OMISSIONS IN PROCESSING OF PROMOTION
REQUESTS THAT WILL BE
REGARDED AS ADMINISTRATIVE OR CLERICAL ERRORS THAT WILL SUPPORT
RETROACTIVE PROMOTION,
APPLICABLE DECISIONS HAVE DRAWN A DISTINCTION BETWEEN THOSE ERRORS
THAT OCCUR PRIOR TO
APPROVAL OF THE PROMOTION BY THE PROPERLY AUTHORIZED OFFICIAL AND
THOSE THAT OCCUR AFTER SUCH
APPROVAL BUT BEFORE THE ACTS NECESSARY TO EFFECTIVE PROMOTION HAVE
BEEN FULLY CARRIED
OUT. THE RULE IS AS STATED IN B-180046, QUOTED ABOVE. SEE ALSO 54
COMP.GEN. 538(1974); B-183969, JULY 2, 1975; AND B-184817, NOVEMBER
18, 1975. THE RATIONALE
FOR DRAWING THIS DISTINCTION IS THAT THE INDIVIDUAL WITH AUTHORITY TO
APPROVE PROMOTION
REQUESTS ALSO HAS THE AUTHORITY NOT TO APPROVE ANY SUCH REQUEST
UNLESS HIS EXERCISE OF
DISAPPROVAL AUTHORITY IS OTHERWISE CONSTRAINED BY STATUTE,
ADMINISTRATIVE POLICY OR
REGULATION. THUS, WHERE THE DELAY OR OMISSION OCCURS BEFORE THAT
OFFICIAL HAS HAD THE
OPPORTUNITY TO EXERCISE HIS DISCRETION WITH RESPECT TO APPROVAL OR
DISAPPROVAL, ADMINISTRATIVE
INTENT TO PROMOTE AT ANY PARTICULAR TIME CANNOT BE ESTABLISHED OTHER
THAN BY AFTER-THE-FACT
STATEMENTS AS TO WHAT THAT OFFICIAL STATES WOULD HAVE BEEN HIS
DETERMINATION. AFTER THE
AUTHORIZED OFFICIAL HAS EXERCISED HIS AUTHORITY BY APPROVING THE
PROMOTION REQUEST, ALL THAT
REMAINS TO EFFECTUATE THAT PROMOTION IS A SERIES OF MINISTERIAL ACTS
WHICH COULD BE COMPELLED
BY WRIT OF MANDAMUS. IN THAT CATEGORY OF CASE, ADMINISTRATIVE INTENT
CAN BE ASCERTAINED WITH
CERTAINTY AND RETROACTIVE PROMOTION AS A REMEDY FOR FAILURE TO
ACCOMPLISH THOSE MINISTERIAL
ACTS IS APPROPRIATE."
WE BELIEVE THAT THE REASONING OF THE LEVY DECISION IS EQUALLY
APPLICABLE TO THE CASE NOW BEFORE US. SINCE THE ARBITRATOR'S AWARD HERE
IS PREDICATED UPON CLERICAL OR ADMINISTRATIVE ERROR PRIOR TO ACTION BY
THE AUTHORIZED OFFICIAL, IT IS CONTRARY TO APPLICABLE AUTHORITIES,
EXCEPT TO THE EXTENT THAT THE AUTHORIZED OFFICIAL'S EXERCISE OF
DISCRETION TO APPROVE OR DISAPPROVE THE GRIEVANT'S PROMOTION REQUEST IS
LIMITED BY STATUTE, REGULATION OR COLLECTIVE-BARGAINING AGREEMENT. AS
WE RECOGNIZED IN JANICE LEVY, WHILE EMPLOYEES HAVE NO VESTED RIGHT TO
PROMOTION AT ANY SPECIFIC TIME, AN AGENCY, BY NEGOTIATION OF A
COLLECTIVE-BARGAINING AGREEMENT OR BY PROMULGATION OF A REGULATION MAY
LIMIT ITS DISCRETION SO THAT UNDER SPECIFIED CONDITIONS IT BECOMES
MANDATORY TO MAKE A PROMOTION ON AN ASCERTAINABLE DATE. SEE, FOR
EXAMPLE, 54 COMP.GEN. 403(1974); 54 ID. 538(1974); 54 ID. 888(1975);
55 ID. 42(1975); AND B-180010, AUGUST 30, 1976. IN THOSE CASES,
HOWEVER, IN CONTRAST TO THE PRESENT CASE, THE NEGOTIATED AGREEMENTS
CONTAINED SPECIFIC PROVISIONS REQUIRING PROMOTIONS TO BE MADE UNDER
SPECIFIED CONDITIONS.
SINCE THE ARBITRATOR FOUND THAT THE MISPLACING OF MR. CAHILL'S
PROMOTION REQUEST RESULTED IN A VIOLATION OF ARTICLE 6, SECTION 1 OF THE
NEGOTIATED AGREEMENT, THE QUESTION REMAINING FOR DECISION IS WHETHER
THAT PROVISION CONSTITUTED A NONDISCRETIONARY PROVISION SO AS TO SUPPORT
AN AWARD OF A RETROACTIVE PROMOTION WITH BACKPAY BASED ON THE VIOLATION.
THE FLRC ORIGINALLY REFUSED TO REVIEW THE CAHILL AWARD BASED ON ITS
UNDERSTANDING THAT, UNDER 54 COMP.GEN. 312(1974) AND LATER DECISIONS OF
THE COMPTROLLER GENERAL, A VIOLATION OF A COLLECTIVE-BARGAINING
AGREEMENT COUPLED WITH A DETERMINATION THAT BUT FOR THAT VIOLATION THE
GRIEVANT WOULD HAVE BEEN PROMOTED AT AN EARLIER DATE PROVIDES A PROPER
BASIS FOR RETROACTIVE PROMOTION AND AWARD OF BACKPAY. WE NOTE THAT THIS
WAS ESSENTIALLY THE BASIS FOR THE COUNCIL'S REFUSAL TO REVIEW THE AWARD
IN THE JANICE LEVY CASE. NOTWITHSTANDING OUR DECISION IN THE LEVY CASE,
IT APPEARS FROM THE ABOVE-QUOTED LANGUAGE OF THE COUNCIL'S JULY 18,
1978, LETTER TO THIS OFFICE THAT THERE IS STILL SOME QUESTION AS TO THE
EFFECT UNDER THE BACK PAY ACT, 5 U.S.C. 5596 OF AN ARBITRATOR'S
DETERMINATION THAT AN AGENCY HAS VIOLATED A PROVISION OF A NEGOTIATED
AGREEMENT. SPECIFICALLY, WE REFER TO THE COUNCIL'S STATEMENT THAT THE
LEVY DECISION IS AN "APPARENT DEPARTURE * * * FROM THE GENERAL PRINCIPLE
ESTABLISHED IN PREVIOUS DECISIONS OF YOUR OFFICE THAT A PROVISION IN A
NEGOTIATED AGREEMENT, IF OTHERWISE PROPER, BECOMES A NONDISCRETIONARY
AGENCY POLICY FOR PURPOSES OF APPLYING THE PROVISIONS OF THE BACK PAY
ACT OF 1966."
WE HAVE HELD THAT AN AGENCY MAY BARGAIN AWAY ITS DISCRETION AND
THEREBY MAKE A PROVISION OF A COLLECTIVE-BARGAINING AGREEMENT A
NONDISCRETIONARY AGENCY POLICY, IF THE PROVISION IS CONSISTENT WITH
APPLICABLE LAWS AND REGULATIONS. THE VIOLATION OF SUCH A MANDATORY
PROVISION IN A NEGOTIATED AGREEMENT WHICH CAUSES AN EMPLOYEE TO LOSE
PAY, ALLOWANCES OR DIFFERENTIALS MAY BE FOUND TO BE AN UNJUSTIFIED OR
UNWARRANTED PERSONNEL ACTION UNDER THE BACK PAY ACT, 5 U.S.C. 5596, THUS
ENTITLING THE AGGRIEVED EMPLOYEES TO RETROACTIVE COMPENSATION FOR SUCH
VIOLATION OF A NEGOTIATED AGREEMENT. 54 COMP.GEN. 1071, 1073(1975); 55
ID. 171, 173(1975); 55 ID. 405, 407(1975) 55 ID. 427, 429(1975).
THUS, WE ARE FULLY COMMITTED TO UPHOLDING AWARDS OF BACKPAY FOR
VIOLATIONS OF MANDATORY PROVISIONS IN NEGOTIATED AGREEMENTS. HOWEVER,
AS WE STRESSED IN THE LEVY CASE, NOT EVERY VIOLATION OF A
COLLECTIVE-BARGAINING AGREEMENT WILL SUPPORT A RETROACTIVE PROMOTION AND
AWARD OF BACKPAY. THE VIOLATION MUST BE OF A PROVISION IN A
COLLECTIVE-BARGAINING AGREEMENT AMOUNTING TO A NONDISCRETIONARY AGENCY
POLICY. OUR PRIOR DECISIONS IN THIS AREA HAVE NOT HELD THAT ANY
PROVISION, BY THE MERE FACT OF ITS INCLUSION IN A COLLECTIVE-BARGAINING
AGREEMENT, BECOMES A NONDISCRETIONARY POLICY FOR PURPOSES OF AWARDING
BACKPAY.
IN JOHN H. BROWN, 56 COMP.GEN. 57(1976) WE SPECIFICALLY ADDRESSED THE
SUGGESTION THAT ANY PROVISION IN A COLLECTIVE-BARGAINING AGREEMENT
BECOMES A NONDISCRETIONARY AGENCY POLICY. THE ARBITRATOR IN THAT CASE
HAD DIRECTED THAT A SPECIAL ACHIEVEMENT AWARD BE GIVEN THE GRIEVANT AS A
REMEDY FOR THE AGENCY'S VIOLATION OF A CLAUSE IN THE AGREEMENT PROVIDING
THE AWARDS SHALL BE USED EXCLUSIVELY FOR REWARDING EMPLOYEES FOR THE
PERFORMANCE OF ASSIGNED DUTIES AND THAT THE AWARDS PROGRAM SHALL NOT BE
USED TO DISCRIMINATE OR EFFECT FAVORITISM. IN HOLDING THAT THE
AGREEMENT DID NOT CHANGE THE GRANTING OF AWARDS INTO A MANDATORY AGENCY
POLICY, WE STATED AT 56 ID. 59:
"IN RECENT DECISIONS THIS OFFICE HAS ATTEMPTED TO GIVE MEANINGFUL
EFFECT TO THE
LABOR-MANAGEMENT PROGRAM ESTABLISHED UNDER EXECUTIVE ORDER 11491 AND
TO ARBITRATION AWARDS
RENDERED THEREUNDER IF SUCH AWARDS ARE CONSISTENT WITH LAWS,
REGULATIONS AND OUR
DECISIONS. 54 COMP.GEN. 312, 320(1974). WE HAVE HELD THAT
PROVISIONS IN COLLECTIVE
BARGAINING AGREEMENTS UNDER THE EXECUTIVE ORDER MAY BECOME
NONDISCRETIONARY AGENCY POLICIES
AND, IF THE AGENCY HAS AGREED TO BINDING ARBITRATION, THAT THE AGENCY
HEAD'S DECISION WOULD BE
GIVEN. ID. AT 316. BUT WE FURTHER STATED THEREIN THAT OUR DECISION
'SHOULD NOT BE CONSTRUED
TO MEAN THAT ANY PROVISION IN A COLLECTIVE BARGAINING AGREEMENT
AUTOMATICALLY BECOMES A
NONDISCRETIONARY AGENCY POLICY,' AND WE ADDED THAT '(W)HEN THERE IS
DOUBT AS TO WHETHER AN
AWARD MAY BE PROPERLY IMPLEMENTED, A DECISION FROM THE COUNCIL OR
FROM THIS OFFICE SHOULD BE
SOUGHT.' ID. AT 319, 320."
ANY DOUBT AS TO THE NATURE OF CONTRACTUAL VIOLATIONS THAT WILL
SUPPORT AWARDS OF BACKPAY IS RESOLVED BY THE CIVIL SERVICE COMMISSION'S
AMENDED BACKPAY REGULATIONS FOUND IN TITLE 5, CODE OF FEDERAL
REGULATIONS, PART 550, SUBPART H (1978). AT 5 C.F.R. 550.802(D), THE
TERM "NONDISCRETIONARY PROVISION" IS DEFINED TO MEAN:
" * * * ANY PROVISION OF LAW, EXECUTIVE ORDER, REGULATION, PERSONNEL
POLICY ISSUED BY AN
AGENCY, OR COLLECTIVE BARGAINING AGREEMENT THAT REQUIRES AN AGENCY TO
TAKE A PRESCRIBED ACTION
UNDER STATED CONDITIONS OR CRITERIA."
ALTHOUGH THAT REGULATION WAS NOT ADOPTED BY THE COMMISSION UNTIL
MARCH 25, 1977, WELL AFTER THE CAHILL AWARD WAS RENDERED, IT PRIMARILY
RESTATES THE STANDARDS OF SPECIFICITY APPLIED IN OUR DECISIONS RENDERED
UNDER THE BACK PAY ACT. UNDER THAT DEFINITION, ACTION WHICH SHOULD OR
SHOULD NOT BE TAKEN, AS WELL AS THE CONDITIONS AND CRITERIA UNDER WHICH
THAT ACTION SHOULD OR SHOULD NOT BE TAKEN MUST BE PRESCRIBED IN THE
COLLECTIVE-BARGAINING AGREEMENT OR IN AGENCY REGULATIONS OR POLICIES.
THUS, WHILE AN ARBITRATOR MAY APPROPRIATELY FIND THAT AN AGENCY'S
ACTIONS WERE "INEQUITABLE" AND HENCE CONTRAVENED GENERAL LANGUAGE OF A
NEGOTIATED AGREEMENT CALLING FOR EQUITABLE TREATMENT OF ALL EMPLOYEES,
THAT VIOLATION DOES NOT ITSELF PROVIDE A BASIS FOR AWARD OF BACKPAY,
EVEN WHEN THE ARBITRATOR FINDS THAT THE INEQUITABLE ACTIONS RESULTED IN
A LOSS OF PAY.
IN THE INSTANT CASE, ALTHOUGH THE ARBITRATOR FOUND THAT CLERICAL
ERROR IN FAILING TO
PROCESS THE GRIEVANT'S PROMOTION REQUEST IN TIMELY FASHION RESULTED
IN A VIOLATION OF ARTICLE
6, SECTION 1 OF THE NEGOTIATED AGREEMENT, HE DID NOT FIND, NOR DO WE
BELIEVE HE PROPERLY COULD
FIND, THAT ARTICLE 6, SECTION 1, SPECIFICALLY REQUIRED PROMOTIONS TO
BE MADE WITHIN ANY
PRESCRIBED TIME FRAME OR IN ACCORDANCE WITH ANY STATED CONDITIONS OR
CRITERIA. NOTHING IN
THAT PROVISION LIMITS OR QUALIFIES THE DISCRETION OF THE HEW REGIONAL
PERSONNEL OFFICE TO
APPROVE OR DISAPPROVE PROMOTIONS OR REQUIRES THE AGENCY TO MAKE
PROMOTIONS WITHIN ANY
SPECIFIED TIME PERIOD. HENCE, THIS CASE IS CLEARLY DISTINGUISHABLE
FROM THOSE CASES, SUCH AS
55 COMP.GEN. 42, SUPRA, WHERE THE AGENCY AND THE UNION HAD AGREED
UPON A SPECIFIED TIME FRAME
FOR PROMOTIONS UNDER STATED CONDITIONS.
ACCORDINGLY, SINCE ARTICLE 6, SECTION 1, DOES NOT CONSTITUTE A
NONDISCRETIONARY AGENCY
POLICY, THE AWARD OF A RETROACTIVE PROMOTION AND BACKPAY TO MR.
CAHILL WAS IMPROPER.
UNDER THE CIRCUMSTANCES OF THIS CASE, WE BELIEVE THAT COLLECTION OF
OVERPAYMENTS OF BACKPAY
MADE TO MR. CAHILL IN SATISFACTION OF THE ARBITRATION AWARD WOULD BE
AGAINST EQUITY AND GOOD
CONSCIENCE AND NOT IN THE BEST INTERESTS OF THE UNITED STATES. IN
PARTICULAR, WE REFER TO THE
FACTS THAT THE ISSUE OF MR. CAHILL'S ENTITLEMENT WAS APPEALED THROUGH
PROPER ADMINISTRATIVE
CHANNELS AND WAS DEEMED FINALLY SETTLED AS OF JULY 7, 1977, THAT
PAYMENT WAS MADE TO
MR. CAHILL AND RECEIVED BY HIM IN GOOD FAITH SATISFACTION OF THE
AWARD, AND THAT THE COUNCIL'S
DETERMINATION DENYING THE SSA'S PETITION FOR REVIEW OF THE AWARD
APPARENTLY WAS BASED IN PART
ON ITS UNCERTAINTY AS TO THE IMPORT OF OUR PRIOR DECISIONS UNDER THE
BACK PAY
ACT. ACCORDINGLY, MR. CAHILL'S INDEBTEDNESS TO THE UNITED STATES AS
A RESULT OF OVERPAYMENTS
RECEIVED PURSUANT TO THE ARBITRATION AWARD IS WAIVED PURSUANT TO THE
PROVISIONS OF 5
U.S.C. 5584 AND 4 C.F.R.PART 91.
BASED ON THE FOREGOING DECISION OF THE COMPTROLLER GENERAL, WE FIND
THAT THE ARBITRATOR'S AWARD OF RETROACTIVE PROMOTION AND BACKPAY
VIOLATES APPLICABLE LAW AND APPROPRIATE REGULATION.
CONCLUSION
FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2411.37(B) OF THE
COUNCIL'S RULES OF PROCEDURE, WE MODIFY THE ARBITRATOR'S AWARD BY
STRIKING THAT PORTION OF THE AWARD WHICH DIRECTS THAT THE GRIEVANT BE
GIVEN A RETROACTIVE PROMOTION WITH BACKPAY. AS SO MODIFIED, THE AWARD
IS SUSTAINED AND THE STAY IS VACATED.
BY THE COUNCIL.
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
ISSUED: DECEMBER 22, 1978
/1/ THE PROVISION THAT THE ARBITRATOR FOUND VIOLATED WAS ARTICLE 6,
MERIT PROMOTION, SECTION 1 WHICH PROVIDES:
THE EMPLOYER AND THE UNION MUTUALLY AGREE THAT THE PURPOSE AND INTENT
OF THE PROVISIONS
CONTAINED HEREIN IS TO IMPLEMENT THE REGION'S MERIT PROMOTION PLAN,
WHICH WILL HELP TO INSURE
THAT MERIT PROMOTION PRINCIPLES ARE APPLIED IN A CONSISTENT MANNER,
WITH EQUITY TO ALL
EMPLOYEES.
6 FLRC 995; FLRC NO. 78A-105; DECEMBER 20, 1978.
DEPARTMENT OF JUSTICE,
U.S. MARSHALS SERVICE
(ACTIVITY)
AND
INTERNATIONAL COUNCIL OF
USMS LOCALS, AFGE
(UNION)
78 FSIP 43
FLRC NO. 78A-105
DECISION ON NEGOTIABILITY ISSUE REFERRED
BY FEDERAL SERVICE IMPASSES PANEL /1/
(SYNOPSIS) FLRC NO. 78A-105
DEPARTMENT OF JUSTICE, U.S. MARSHALS SERVICE, WASHINGTON, D.C. AND
INTERNATIONAL COUNCIL OF USMS LOCALS, AFGE, 78 FSIP 43. THE DISPUTE
INVOLVED THE NEGOTIABILITY OF A UNION PROPOSAL RELATING TO PREMIUM PAY
FOR OVERTIME WORK.
COUNCIL ACTION (DECEMBER 20, 1978). BASED UPON AN INTERPRETATION OF
APPLICABLE LAW AND CIVIL SERVICE COMMISSION DIRECTIVES RENDERED BY THE
CIVIL SERVICE COMMISSION IN RESPONSE TO THE COUNCIL'S REQUEST, THE
COUNCIL FOUND THAT THE UNION'S PROPOSAL CONFLICTED WITH SUCH APPLICABLE
LAW AND REGULATIONS. ACCORDINGLY, PURSUANT TO SECTION 2411.28 OF ITS
RULES, THE COUNCIL SUSTAINED THE AGENCY'S DETERMINATION THAT THE
PROPOSAL WAS NONNEGOTIABLE.
UNION PROPOSAL
ARTICLE XXII - OVERTIME AND STANDBY
SECTION 3. ALL HOURS OF WORK PERFORMED IN EXCESS OF EIGHT HOURS IN
ANY ONE DAY AND ALL
HOURS OF WORK PERFORMED IN EXCESS OF FORTY HOURS IN ONE
ADMINISTRATIVE WORKWEEK BY AN EMPLOYEE
SHALL BE OVERTIME.
A. EMPLOYEES WILL BE COMPENSATED UNDER THE PROVISIONS OF 5 U.S.C.
5545(C) WHERE THE HOURS
OF WORK IN EXCESS OF EIGHT HOURS PER DAY OR 40 HOURS PER WEEK CANNOT
BE CONTROLLED
ADMINISTRATIVELY. THIS MAY INCLUDE COURTROOM DUTY, PRISONER PICKUPS
AND RETURN AND SPECIAL
ASSIGNMENT WHERE OVERTIME FOR THESE ASSIGNMENTS CANNOT BE
ANTICIPATED. TO QUALIFY FOR AUO
OVERTIME WORK WOULD NOT BE PREDICTABLE IN TERMS OF WHEN IT WOULD
OCCUR AND HOW LONG IT WOULD
LAST AND IS ADMINISTRATIVELY UNCONTROLLABLE.
B. EMPLOYEES WILL BE COMPENSATED UNDER THE PROVISIONS OF 5 U.S.C.
AND 5542 FOR OVERTIME
WORK THAT CAN BE CONTROLLED ADMINISTRATIVELY. THIS INCLUDES SERVING
OF PAPERS, PRISONER
COORDINATION TRIPS AND ALL OTHER OVERTIME INCLUDING THOSE DUTIES
DESCRIBED IN SECTION A. WHERE
THE OVERTIME WORK IS PREDICTABLE IN TERMS OF WHEN IT WOULD OCCUR AND
HOW LONG IT WOULD LAST
AND IS ADMINISTRATIVELY CONTROLLABLE. ALL OVERTIME UNDER PARAGRAPH
B. SHALL BE DEFINED
REGULARLY SCHEDULED OVERTIME REGARDLESS OF ITS DURATION IN ACCORDANCE
WITH TITLE 5 U.S.C. AND
5542.
PREMIUM COMPENSATION FOR AUO DEFINED IN SECTION A. AND FOR REGULARLY
SCHEDULED OVERTIME
DEFINED IN SECTION B. RELATE TO INDEPENDENT MUTUALLY EXCLUSIVE
METHODS FOR COMPENSATING TWO
DISTINCT FORMS OF OVERTIME WORK. EMPLOYEES ARE NOT PRECLUDED FROM
RECEIVING REGULAR (HOURLY)
OVERTIME PAY IN ADDITION TO AUO PREMIUM PAY. HOWEVER, EMPLOYEES
CANNOT CLAIM BOTH FOR THE
SAME HOURS WORKED.
AGENCY DETERMINATION
THE AGENCY DETERMINED THAT THE UNION'S PROPOSED ARTICLE XXII, SECTION
3 IS NONNEGOTIABLE BECAUSE IT VIOLATES 5 U.S.C. 5545 AND IMPLEMENTING
REGULATIONS OF THE CIVIL SERVICE COMMISSION. /2/
QUESTION HERE BEFORE THE COUNCIL
THE QUESTION IS WHETHER THE UNION'S PROPOSED ARTICLE XXII, SECTION 3
VIOLATES 5 U.S.C. 5545 AND IMPLEMENTING REGULATIONS OF THE CIVIL SERVICE
COMMISSION.
OPINION
CONCLUSION: THE UNION'S PROPOSED ARTICLE XXII, SECTION 3 VIOLATES 5
U.S.C. 5545 AND IMPLEMENTING REGULATIONS OF THE CIVIL SERVICE
COMMISSION. ACCORDINGLY, THE AGENCY DETERMINATION THAT THE PROPOSAL IS
NONNEGOTIABLE WAS PROPER AND, PURSUANT TO SECTION 2411.28 OF THE
COUNCIL'S RULES, IS SUSTAINED.
REASONS: SINCE THE CIVIL SERVICE COMMISSION HAS PRIMARY
RESPONSIBILITY FOR ISSUANCE AND INTERPRETATION OF ITS OWN DIRECTIVES,
INCLUDING THOSE WHICH IMPLEMENT TITLE 5, UNITED STATES CODE, PERTAINING
TO PREMIUM PAY, THAT AGENCY WAS REQUESTED, IN ACCORDANCE WITH
ESTABLISHED PRACTICE, TO INTERPRET COMMISSION DIRECTIVES AS THEY PERTAIN
TO THIS PROPOSAL.
THE COMMISSION RESPONDED, IN PERTINENT PART, AS FOLLOWS:
THIS IS IN RESPONSE TO YOUR AUGUST 30, 1978, LETTER REQUESTING AN
INTERPRETATION OF CIVIL
SERVICE COMMISSION REGULATIONS AS THEY APPLY TO THE NEGOTIABILITY
ISSUE IN THE
ABOVE-REFERENCED CASE.
AS SECTION 3 OF ARTICLE XXII OF THE NEGOTIATED AGREEMENT, THE UNION
HAS PROPOSED THE FOLLOWING
ALL HOURS OF WORK PERFORMED IN EXCESS OF EIGHT HOURS IN ANY ONE DAY
AND ALL HOURS OF WORK
PERFORMED IN EXCESS OF FORTY HOURS IN ONE ADMINISTRATIVE WORKWEEK BY
AN EMPLOYEE SHALL BE
OVERTIME. ALL OVERTIME SHALL BE PAID AT THE APPROPRIATE RATE OF PAY.
A. EMPLOYEES WILL BE COMPENSATED UNDER THE PROVISIONS OF 5 USC
5545(C) WHERE THE HOURS OF
WORK IN EXCESS OF EIGHT HOURS PER DAY OR 40 HOURS PER WEEK CANNOT BE
CONTROLLED
ADMINISTRATIVELY. THIS MAY INCLUDE COURTROOM DUTY, PRISONER PICKUPS
AND RETURN AND SPECIAL
ASSIGNMENTS CANNOT BE ANTICIPATED. TO QUALIFY FOR AUO, OVERTIME WORK
WOULD NOT BE PREDICTABLE
IN TERMS OF WHEN IT WOULD OCCUR AND HOW LONG IT WOULD LAST AND IS
ADMINISTRATIVELY
UNCONTROLLABLE.
B. EMPLOYEES WILL BE COMPENSATED UNDER THE PROVISIONS OF 5 USC AND
5542 FOR OVERTIME WORK
THAT CAN BE CONTROLLED ADMINISTRATIVELY. THIS INCLUDES SERVING OF
PAPERS, PRISONER
COORDINATION TRIPS AND ALL OTHER OVERTIME INCLUDING THOSE DUTIES
DESCRIBED IN SECTION A. WHERE
THE OVERTIME WORK IS PREDICTABLE IN TERMS OF WHEN IT WOULD OCCUR AND
HOW LONG IT WOULD LAST
AND IS ADMINISTRATIVELY CONTROLLABLE. ALL OVERTIME UNDER PARAGRAPH
B. SHALL BE DEFINED
REGULARLY SCHEDULED OVERTIME REGARDLESS OF ITS DURATION IN ACCORDANCE
WITH TITLE 5 U.S.C. AND
5542.
PREMIUM COMPENSATION FOR AUO DEFINED IN SECTION A. AND FOR REGULARLY
SCHEDULED OVERTIME
DEFINED IN SECTION B. RELATE TO INDEPENDENT MUTUALLY EXCLUSIVE
METHODS FOR COMPENSATING TWO
DISTINCT FORMS OF OVERTIME WORK. EMPLOYEES ARE NOT PRECLUDED FROM
RECEIVING REGULAR (HOURLY)
OVERTIME PAY IN ADDITION TO AUO PREMIUM PAY. HOWEVER, EMPLOYEES
CANNOT CLAIM BOTH FOR THE
SAME HOURS WORKED.
YOU ASKED WHETHER THE ABOVE-QUOTED SECTION OF THE PROPOSED AGREEMENT
CONFLICTS WITH CIVIL SERVICE COMMISSION REGULATIONS, IN PARTICULAR,
THOSE IMPLEMENTING SECTION 5545 OF TITLE 5 UNITED STATES CODE, WHICH
PERTAINS TO PREMIUM PAY.
PREMIUM PAY FOR OVERTIME WORK IS PROVIDED BY SECTION 5542 OF TITLE 5,
UNITED STATES CODE, AS FOLLOWS:
(A) FOR FULL-TIME, PART-TIME AND INTERMITTENT TOURS OF DUTY, 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 AND
SHALL BE PAID FOR, EXCEPT AS
OTHERWISE PROVIDED BY THIS SUBCHAPTER, AT THE FOLLOWING RATES;
THE RATES OF OVERTIME PROVIDED ARE ONE AND ONE-HALF TIMES THE REGULAR
HOURLY RATE EXCEPT FOR EMPLOYEES WHOSE BASIC RATE OF PAY EXCEEDS THE
MINIMUM FOR GS-10, IN WHICH CASE THE OVERTIME RATE IS ONE AND ONE-HALF
TIMES THE MINIMUM RATE OF BASIC PAY FOR GS-10. THE CIVIL SERVICE
REGULATIONS IMPLEMENTING THIS SECTION OF LAW ARE FOUND IN 5 CFR 550.111
- 550.131.
COMPENSATION FOR ADMINISTRATIVELY UNCONTROLLABLE OVERTIME (AUO) WORK
IS PROVIDED FOR IN SECTION 5545(C)(2) OF TITLE 5, UNITED STATES CODE:
(C) THE HEAD OF AN AGENCY, WITH THE APPROVAL OF THE CIVIL SERVICE
COMMISSION, MAY PROVIDE
THAT-- . . . (2) AN EMPLOYEE IN A POSITION IN WHICH THE HOURS OF DUTY
CANNOT BE CONTROLLED
ADMINISTRATIVELY, AND WHICH REQUIRES SUBSTANTIAL AMOUNTS OF IRREGULAR
UNSCHEDULED, OVERTIME
DUTY WITH THE EMPLOYEE GENERALLY BEING RESPONSIBLE FOR RECOGNIZING,
WITHOUT SUPERVISION,
CIRCUMSTANCES WHICH REQUIRE HIM TO REMAIN ON DUTY, SHALL RECEIVE
PREMIUM PAY FOR THIS DUTY ON
AN ANNUAL BASIS INSTEAD OF PREMIUM PAY PROVIDED BY OTHER PROVISIONS
OF THIS SUBCHAPTER, EXCEPT
FOR REGULARLY SCHEDULED OVERTIME, NIGHT, AND SUNDAY DUTY, AND FOR
HOLIDAY DUTY. PREMIUM PAY
UNDER THIS PARAGRAPH IS DETERMINED AS AN APPROPRIATE PERCENTAGE, NOT
LESS THAN 10 PER CENTUM
NOR MORE THAN 25 PER CENTUM, OF SUCH PART OF THE RATE OF BASIC PAY
FOR THE POSITION AS DOES
NOT EXCEED THE MINIMUM RATE OF BASIC PAY FOR GS-10, BY TAKING INTO
CONSIDERATION THE FREQUENCY
AND DURATION OF IRREGULAR UNSCHEDULED OVERTIME DUTY REQUIRED IN THE
POSITION.
THE IMPLEMENTING CIVIL SERVICE REGULATIONS APPEAR IN 5 CFR
550.151-550.164 AND PROVIDE, SPECIFICALLY IN SECTION 550.163(B) THAT:
AN EMPLOYEE RECEIVING PREMIUM PAY ON AN ANNUAL BASIS UNDER 550.151
(FOR AUO) MAY NOT
RECEIVE PREMIUM PAY FOR IRREGULAR OR OCCASIONAL OVERTIME WORK UNDER
ANY OTHER SECTION OF THIS
SUBPART. AN AGENCY SHALL PAY THE EMPLOYEE IN ACCORDANCE WITH OTHER
SECTIONS OF THIS SUBPART
FOR REGULAR OVERTIME WORK AND WORK AT NIGHT, ON SUNDAYS, AND ON
HOLIDAYS.
TWO FUNDAMENTAL DEFECTS RENDER THE PROPOSAL INCONSISTENT WITH
EXISTING LAW GOVERNING
ENTITLEMENT TO PREMIUM PAY. FIRST, CONTRARY TO THE EXPLICIT LANGUAGE
SET FORTH IN LAW AND
REGULATIONS, THE UNION PROPOSAL FAILS TO SPECIFY THAT IN ORDER TO
QUALIFY FOR AUO PREMIUM PAY,
AN EMPLOYEE MUST OCCUPY A POSITION WHICH HAS BEEN DETERMINED TO
REQUIRE SUBSTANTIAL AMOUNTS OF
IRREGULAR, UNSCHEDULED, OVERTIME DUTY WITH THE EMPLOYEE GENERALLY
BEING RESPONSIBLE FOR
RECOGNIZING, WITHOUT SUPERVISION, CIRCUMSTANCES WHICH REQUIRE HIM TO
REMAIN ON DUTY, WITHIN
THE MEANING OF 5 USC 5545(C)(2) AND 5 CFR 550.153-550.161.
SECOND, CONTRARY TO EXPLICIT STATUTORY AND REGULATORY PROHIBITION,
THE UNION PROPOSAL WOULD
REQUIRE PAYING EMPLOYEES FOR UNCONTROLLABLE OVERTIME WORK UNDER THE
ANNUAL PREMIUM PAY
PROVISION OF 5 USC 5545(C)(2) IN ADDITION TO OVERTIME PAY FOR
CONTROLLABLE OVERTIME WORK UNDER
5 USC 5542. THE STATUTE AND RELATED CSC REGULATIONS PROVIDE THAT
EMPLOYEES SHALL BE PAID
ANNUAL PREMIUM PAY (AUO) FOR "IRREGULAR, UNSCHEDULED OVERTIME" DUTY,
AND ONLY AS AN EXCEPTION
MAY THEY BE PAID FOR ADDITIONAL "REGULARLY SCHEDULED OVERTIME" WORK
UNDER 5 USC 5542.
THE PHRASES USED IN THE PROPOSAL, "CANNOT BE CONTROLLED
ADMINISTRATIVELY" AND "CAN BE
CONTROLLED ADMINISTRATIVELY" ARE NOT SYNONYMOUS WITH THE STATUTORY
PHRASES "IRREGULAR,
UNSCHEDULED OVERTIME" DUTY AND "REGULARLY SCHEDULED OVERTIME" WORK
USED FOR DETERMINING
ENTITLEMENT TO PREMIUM PAY UNDER TITLE 5.
TWO TYPES OF "IRREGULAR, UNSCHEDULED OVERTIME" DUTY ARE COMPENSABLE
AS ADMINISTRATIVELY
UNCONTROLLABLE OVERTIME (AUO) UNDER 5 USC 5545(C)(2): ONE IS THAT
GENERALLY AT THE RECOGNITION
OF THE EMPLOYEE, THE OTHER IS AT THE DIRECTION OF THE AGENCY. IN
CONTRAST, THE UNION PROPOSAL
WOULD EFFECTIVELY REDEFINE ALL OVERTIME WHICH "CAN BE CONTROLLED
ADMINISTRATIVELY" TO MEAN
"REGULARLY SCHEDULED OVERTIME." SUCH A REDEFINITION COULD INCLUDE
SOME "IRREGULAR,
UNSCHEDULED OVERTIME" WORKED BY AN EMPLOYEE AT HIS OWN RECOGNITION
AND, NO DOUBT, A
CONSIDERABLE AMOUNT OF WORK WHICH IS DIRECTED BY THE AGENCY BUT NOT
ASSIGNED ON A REGULARLY
SCHEDULED BASIS.
IT IS OUR OPINION THAT THE PROPOSAL IS BARRED FROM NEGOTIATION ON THE
BASIS THAT THE
PROVISIONS OF 5 USC 5545(C)(2) AND CSC REGULATIONS WOULD BE VIOLATED
IF "IRREGULAR,
UNSCHEDULED OVERTIME" DUTY WOULD BE CONSIDERED "CONTROLLABLE" BY THE
NEGOTIATED AGREEMENT, AND
THEREFORE REQUIRE COMPENSATION AS "REGULARLY SCHEDULED OVERTIME" WORK
UNDER 5 USC 5542.
BASED ON THE FOREGOING INTERPRETATION OF ITS OWN DIRECTIVES AND
RELATED STATUTES BY THE CIVIL SERVICE COMMISSION, WE FIND THAT THE
UNION'S PROPOSAL CONCERNING PREMIUM PAY CONFLICTS WITH APPLICABLE LAW
AND REGULATION OF APPROPRIATE AUTHORITY OUTSIDE THE AGENCY.
ACCORDINGLY, THE AGENCY DETERMINATION THAT THE PROPOSAL IS NONNEGOTIABLE
BECAUSE IT CONTRAVENES CIVIL SERVICE COMMISSION DIRECTIVES IMPLEMENTING
TITLE 5, UNITED STATES CODE, WAS PROPER AND IS SUSTAINED.
BY THE COUNCIL.
HAROLD D. KESSLER
ACTING EXECUTIVE DIRECTOR
ISSUED: DECEMBER 20, 1978
/1/ PURSUANT TO SECTION 2471.7 OF THE RULES AND REGULATIONS OF THE
FEDERAL SERVICE IMPASSES PANEL (PANEL) (5 C.F.R. 2471.7) AND SECTION
2411.27 OF THE RULES AND REGULATIONS OF THE COUNCIL (5 C.F.R. 2411.27),
THE PANEL REFERRED TO THE COUNCIL THE INSTANT NEGOTIABILITY DISPUTE
WHICH AROSE IN CONNECTION WITH AN IMPASSE IN NEGOTIATIONS BETWEEN THE
PARTIES.
/2/ THE AGENCY CITES, IN PARTICULAR, 5 C.F.R. 550.151 - .164.
6 FLRC 991; FLRC NO. 78A-97; DECEMBER 20, 1978.
(SYNOPSIS) FLRC NO. 78A-97
SOCIAL SECURITY ADMINISTRATION, BUREAU OF HEARINGS AND APPEALS,
WASHINGTON, D.C., ASSISTANT SECRETARY CASE NO. 22-08671(CA). THE
ASSISTANT SECRETARY DENIED THE REQUEST FOR REVIEW FILED BY THE UNION
(LOCAL 3615, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
SEEKING REVERSAL OF THE REGIONAL ADMINISTRATOR'S DISMISSAL OF THE
UNION'S COMPLAINT, WHICH ALLEGED THAT THE ACTIVITY VIOLATED SECTION
19(A)(1), (2) AND (6) OF THE ORDER BY DENYING OFFICIAL TIME TO UNION
OFFICIALS WHO WERE TO ACT AS TECHNICAL ADVISORS AT AN EEO HEARING. THE
UNION APPEALED TO THE COUNCIL, CONTENDING, IN ESSENCE, THAT THE
ASSISTANT SECRETARY'S DECISION WAS ARBITRARY AND CAPRICIOUS.
COUNCIL ACTION (DECEMBER 20, 1978). THE COUNCIL HELD THAT THE
UNION'S PETITION FOR REVIEW DID NOT MEET THE REQUIREMENTS OF SECTION
2411.12 OF THE COUNCIL'S RULES OF PROCEDURE; THAT IS, THE DECISION OF
THE ASSISTANT SECRETARY DID NOT APPEAR ARBITRARY AND CAPRICIOUS AND THE
UNION NEITHER ALLEGED, NOR DID IT APPEAR, THAT THE DECISION PRESENTED A
MAJOR POLICY ISSUE. ACCORDINGLY, THE COUNCIL DENIED THE UNION'S
PETITION FOR REVIEW.
DECEMBER 20, 1978
MR. WILLIAM J. STONE
STAFF COUNSEL
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
1325 MASSACHUSETTS AVENUE, NW.
WASHINGTON, D.C. 20005
RE: SOCIAL SECURITY ADMINISTRATION, BUREAU
OF HEARINGS AND APPEALS, WASHINGTON, D.C.
ASSISTANT SECRETARY CASE NO. 22-08671(CA),
FLRC NO. 78A-97
DEAR MR. STONE:
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, AS FOUND BY THE ASSISTANT SECRETARY, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3615, AFL-CIO (THE UNION)
FILED AN UNFAIR LABOR PRACTICE COMPLAINT AGAINST THE SOCIAL SECURITY
ADMINISTRATION, BUREAU OF HEARINGS AND APPEALS, WASHINGTON, D.C. (THE
ACTIVITY). THE COMPLAINT ALLEGED, IN ESSENCE, THAT THE ACTIVITY
VIOLATED SECTION 19(A)(1), (2) AND (6) OF THE ORDER BY DENYING OFFICIAL
TIME TO UNION OFFICIALS WHO WERE TO ACT AS TECHNICAL ADVISORS AT AN
EQUAL EMPLOYMENT OPPORTUNITY (EEO) HEARING. SUCH DENIAL OF OFFICIAL
TIME WAS ALLEGED TO CONSTITUTE A CHANGE IN THE PAST PRACTICE OF THE
ACTIVITY.
THE ASSISTANT SECRETARY, IN AGREEMENT WITH THE REGIONAL ADMINISTRATOR
(RA), FOUND THAT A REASONABLE BASIS FOR THE COMPLAINT HAD NOT BEEN
ESTABLISHED, AND THAT, CONSEQUENTLY, FURTHER PROCEEDINGS IN THE MATTER
WERE NOT UNWARRANTED. IN SO CONCLUDING, HE FOUND THAT "THE EVIDENCE
SUBMITTED WAS INSUFFICIENT TO ESTABLISH THAT A PAST PRACTICE HAD BEEN
ESTABLISHED OF GRANTING OFFICIAL TIME TO UNION REPRESENTATIVES TO SERVE
IN A CAPACITY OTHER THAN AS THE DESIGNATED REPRESENTATIVE OF
COMPLAINANTS AT (EEO) COMPLAINT HEARINGS," AND FURTHER THAT "THE
PARTIES' NEGOTIATED AGREEMENT IS SILENT IN THIS REGARD. ACCORDINGLY, HE
DENIED THE UNION'S REQUEST FOR REVIEW SEEKING REVERSAL OF THE RA'S
DISMISSAL OF THE INSTANT COMPLAINT.
IN YOUR PETITION FOR REVIEW ON BEHALF OF THE UNION, YOU ALLEGE AS
GROUNDS FOR REVIEW THAT (1) "(T)HE ASSISTANT SECRETARY ACTED ARBITRARILY
AND CAPRICIOUSLY IN FAILING TO REMAND THIS UNFAIR LABOR PRACTICE AS IT
INVOLVED THE UNION'S REPRESENTATIONAL RIGHTS AT (EEO) HEARINGS . . .
CONDUCTED BY THE CIVIL SERVICE COMMISSION"; (2) "THE (UNION) SUFFERED A
VIOLATION OF ITS RIGHTS AS THE (A)CTIVITY REFUSED TO FOLLOW PAST
PRACTICES (IN DENYING) THE UNION OFFICERS OFFICIAL TIME TO PARTICIPATE
AS UNION OBSERVERS AT THE EEO HEARING"; AND (3) "(T)HIS (UNFAIR LABOR
PRACTICE) INVOLVED UNIQUE (F)EDERAL LABOR RELATIONS ISSUES AS (ITS
RESOLUTION) WILL DEFINE THE RIGHTS OF THE UNION AT EEO HEARINGS AND
WHETHER . . . THE (A)CTIVITY MUST GRANT OFFICIAL TIME TO THE DESIGNATED
UNION OBSERVERS."
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 AND YOU NEITHER ALLEGE NOR DOES IT APPEAR THAT HIS DECISION
PRESENTS A MAJOR POLICY ISSUE.
AS TO YOUR ALLEGATION 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 THE CIRCUMSTANCES OF THIS CASE. THUS, YOUR CONTENTIONS IN
THIS REGARD ESSENTIALLY AMOUNT TO MERE DISAGREEMENT WITH THE ASSISTANT
SECRETARY'S DETERMINATION THAT NO REASONABLE BASIS FOR THE COMPLAINT HAD
BEEN ESTABLISHED, AND THEREFORE PRESENT NO BASIS FOR COUNCIL REVIEW.
WITH REGARD TO YOUR FURTHER ALLEGATION THAT THE ACTIVITY REFUSED TO
FOLLOW PAST PRACTICE IN DENYING UNION OFFICERS OFFICIAL TIME TO
PARTICIPATE AS OBSERVERS AT AN EEO HEARING, IN THE COUNCIL'S VIEW SUCH
CONTENTION CONSTITUTES NOTHING MORE THAN DISAGREEMENT WITH THE ASSISTANT
SECRETARY'S FINDING THAT "THE EVIDENCE SUBMITTED WAS INSUFFICIENT TO
ESTABLISH . . . A PAST PRACTICE . . . OF GRANTING OFFICIAL TIME TO UNION
REPRESENTATIVES TO SERVE IN A CAPACITY OTHER THAN AS THE DESIGNATED
REPRESENTATIVE OF COMPLAINANTS AT (EEO) COMPLAINT HEARINGS." MOREOVER,
NO BASIS FOR COUNCIL REVIEW IS PRESENTED BY YOUR RELATED ASSERTION THAT
THE INSTANT CASE WILL DEFINE THE RIGHTS OF A UNION AT EEO HEARINGS AND
WHETHER AN ACTIVITY MUST GRANT OFFICIAL TIME FOR DESIGNATED UNION
OBSERVERS, AGAIN NOTING THE ASSISTANT SECRETARY'S FINDING THAT THERE WAS
INSUFFICIENT EVIDENCE TO ESTABLISH A PAST PRACTICE OF PERMITTING UNION
REPRESENTATIVES TO ATTEND EEO HEARINGS AS OBSERVERS (AS OPPOSED TO
DESIGNATED REPRESENTATIVES OF EEO COMPLAINANTS) ON OFFICIAL TIME, AND
NOTING FURTHER HIS FINDING THAT "THE PARTIES' NEGOTIATED AGREEMENT IS
SILENT IN THIS REGARD." MOREOVER, YOUR APPEAL NEITHER ALLEGES, NOR DOES
IT OTHERWISE APPEAR, THAT THE ASSISTANT SECRETARY'S DECISION RAISES A
MAJOR POLICY ISSUE. /1/
SINCE THE ASSISTANT-SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS OR PRESENT A MAJOR POLICY ISSUE, YOUR APPEAL FAILS TO
MEET THE STANDARDS FOR REVIEW AS SET FORTH IN SECTION 2411.12 OF THE
COUNCIL'S RULES AND REGULATIONS. ACCORDINGLY, YOUR PETITION FOR REVIEW
IS HEREBY DENIED.
BY THE COUNCIL.
SINCERELY,
HAROLD D. KESSLER
ACTING EXECUTIVE DIRECTOR
CC: A/SLMR
LABOR
I. L. BECKER
SSA
/1/ SEE DEPARTMENT OF THE NAVY AND U.S. CIVIL SERVICE COMMISSION,
A/SLMR NO. 529, 3 FLRC 763 (FLRC NO. 75A-88 (NOV. 26, 1975), REPORT NO.
93).
6 FLRC 986; FLRC NO. 78A-88; DECEMBER 20, 1978.
NATIONAL TREASURY EMPLOYEES UNION,
CHAPTER 101
(UNION)
AND
U.S. CUSTOMS SERVICE,
OFFICE OF REGULATIONS AND RULINGS
(ACTIVITY)
FLRC NO. 78A-88
DECISION ON NEGOTIABILITY ISSUE
(SYNOPSIS) FLRC NO. 78A-88
NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 101 AND U.S. CUSTOMS
SERVICE, OFFICE OF REGULATIONS AND RULINGS. THE DISPUTE INVOLVED THE
NEGOTIABILITY OF A UNION PROPOSAL WHICH WOULD PROVIDE FOR THE STAYING OF
EMPLOYEE SUSPENSIONS PENDING REVIEW OF THE SUSPENSION DECISION UNDER AN
"EXPEDITED" ARBITRATION PROCEDURE.
COUNCIL ACTION (DECEMBER 20, 1978). THE COUNCIL HELD THAT THE
UNION'S PROPOSAL VIOLATED SECTION 12(B)(2) OF THE ORDER. ACCORDINGLY,
PURSUANT TO SECTION 2411.28 OF ITS RULES, THE COUNCIL SUSTAINED THE
AGENCY'S DETERMINATION THAT THE PROPOSAL WAS NONNEGOTIABLE.
UNION PROPOSAL
ARTICLE 34, SECTION 5
A. (1). IF THE EMPLOYER'S FINAL DECISION IS THAT AN EMPLOYEE WILL
BE SUSPENDED FOR A PERIOD OF FOUR (4) DAYS OR MORE BUT NOT MORE THAN
THIRTY (30), THE UNION WILL HAVE THREE (3) DAYS FROM THE EMPLOYEE'S
RECEIPT OF THE FINAL DECISION TO GIVE NOTICE THAT IT ELECTS TO APPEAL
THE FINAL DECISION TO ARBITRATION. FOR ALL OTHER ACTIONS COVERED BY
THIS ARTICLE THE UNION WILL HAVE FIFTEEN (15) DAYS FROM THE EMPLOYEE'S
RECEIPT OF THE FINAL DECISION TO GIVE NOTICE THAT IT ELECTS TO APPEAL
THE FINAL DECISION TO ARBITRATION. (2) THE ARBITRATION OF ANY
SUSPENSION ACTION COVERED BY THIS ARTICLE SHALL BE HELD WITHIN THIRTY
(30) DAYS OF THE EMPLOYER'S RECEIPT OF THE UNION'S NOTICE OF APPEAL.
(3) THE ARBITRATOR SHALL ISSUE HIS/HER DECISION WITHIN THREE (3)
WORKING DAYS AFTER COMPLETION OF THE HEARING.
(4) IN THE EVENT THAT AN ARBITRATION IS UNABLE TO BE HELD WITHIN THE
TIME LIMITS OF SUBSECTION A.(2) ABOVE, THE AFFECTED EMPLOYEE SHALL SERVE
THE SUSPENSION. IT IS UNDERSTOOD BY THE PARTIES THAT THE ARBITRATOR MAY
AWARD BACK PAY, IF APPROPRIATE, IN SUCH A CASE. (5) THE FOLLOWING THREE
PERSONS SHALL SERVE AS ARBITRATORS FOR CASES ARBITRATED UNDER THIS
SUBSECTION:
. . .
. . .
. . .
THEY SHALL SERVE ON A ROTATING BASIS, AND, IF THE ARBITRATOR WHO
WOULD BE SELECTED UNDER THE ROTATION SYSTEM FOR A PARTICULAR CASE, IS
UNABLE TO HOLD THE ARBITRATION WITHIN THE TIME LIMITS OF SUBSECTION
A.(2) ABOVE, THE NEXT ARBITRATOR ON THE LIST WILL BE CONTACTED, IN TURN,
UNTIL THE LIST IS EXHAUSTED.
(6) ANY ARBITRATION HELD PURSUANT TO SUBSECTION A. OF THIS ARTICLE
SHALL BE CONDUCTED IN ACCORDANCE WITH THE REQUIREMENTS OF SUBSECTION G
BELOW, EXCEPT THAT A VERBATIM TRANSCRIPT OF THE PROCEEDINGS SHALL NOT BE
REQUIRED UNLESS REQUESTED BY THE ARBITRATOR.
AGENCY DETERMINATION
THE AGENCY DETERMINED THAT THE PROPOSAL VIOLATES SECTION 12(B)(2) OF
THE ORDER AND IS THEREFORE NONNEGOTIABLE.
QUESTION HERE BEFORE THE COUNCIL
THE QUESTION IS WHETHER THE PROPOSAL IS NONNEGOTIABLE UNDER SECTION
12(B)(2) OF THE ORDER. /1/
OPINION
CONCLUSION: THE PROPOSAL WOULD NEGATE MANAGEMENT'S RIGHT TO
DISCIPLINE EMPLOYEES UNDER SECTION 12(B)(2) OF THE ORDER. THEREFORE,
THE AGENCY'S DETERMINATION OF NONNEGOTIABILITY WAS PROPER AND, PURSUANT
TO SECTION 2411.28 OF THE COUNCIL'S RULES AND REGULATIONS, IS SUSTAINED.
REASONS: THE AGENCY PRINCIPALLY CONTENDS THAT THE UNION PROPOSAL IN
THIS CASE, WHICH PROVIDES FOR THE STAYING OF EMPLOYEE SUSPENSIONS
PENDING REVIEW OF THE SUSPENSION DECISION UNDER AN "EXPEDITED"
ARBITRATION PROCEDURE, WOULD RESULT IN STAYING EMPLOYEE SUSPENSIONS
INDEFINITELY SINCE THE PROPOSED PROCEDURE DOES NOT ESTABLISH ANY READILY
DEFINABLE LIMITATIONS BEYOND WHICH THE ARBITRATION PROCESS MAY NOT
EXTEND. THUS, THE AGENCY ARGUES, THE PROPOSED PROCEDURE WOULD HAVE THE
EFFECT OF NEGATING MANAGEMENT'S RIGHTS UNDER SECTION 12(B)(2) OF THE
ORDER TO TAKE TIMELY DISCIPLINARY ACTION IN SUSPENSION CASES INVOLVING
UNIT EMPLOYEES, THEREBY RENDERING THE PROPOSAL NONNEGOTIABLE. THE UNION
ARGUES TO THE CONTRARY THAT THE PROPOSED PROCEDURE WOULD NOT PERMIT
DELAYS OF INDEFINITE DURATION IN IMPLEMENTING EMPLOYEE SUSPENSION
ACTIONS, AND WOULD NOT RESULT IN THE NEGATION OF MANAGEMENT'S SECTION
12(B)(2) RIGHTS. /2/ WE DISAGREE WITH THE UNION'S POSITION.
ARTICLE 34, SECTION 5 AS PROPOSED BY THE UNION SETS FORTH SPECIFIC
REQUIREMENTS DESIGNED TO EXPEDITE CASES APPEALED TO ARBITRATION UNDER
ITS PROVISIONS. THE PROPOSAL DOES NOT, HOWEVER, ESTABLISH DEFINITE
LIMITS BEYOND WHICH THE ARBITRATION PROCESS MAY NOT EXTEND. MORE
SPECIFICALLY, ARTICLE 34, SECTION 5, SUBSECTION A.(2), PROVIDING THAT AN
ARBITRATION HEARING SHALL BE HELD WITHIN 30 DAYS OF THE AGENCY'S RECEIPT
OF THE UNION'S NOTICE OF APPEAL, AS INTERPRETED BY THE AGENCY IN THE
RECORD BEFORE US WITHOUT CONTRAVENTION BY THE UNION, REQUIRES ONLY THAT
THE HEARING WILL BE SCHEDULED AND CONVENED WITHIN 30 DAYS BUT DOES NOT
REQUIRE THAT THE HEARING ACTUALLY BE COMPLETED WITHIN A DEFINITE PERIOD
AFTER IT IS CONVENED. IN THIS REGARD, THE UNION SPECIFICALLY INDICATES
THAT SUBSECTION A.(2) OF THE PROPOSAL REQUIRES THE SCHEDULING OF THE
ARBITRATION HEARING WITHIN A DEFINITE PERIOD FROM THE DATE OF INVOCATION
OF THE HEARING, BUT IT DOES NOT ARGUE THAT SUBSECTION A.(2) REQUIRES THE
ARBITRATION HEARING BE COMPLETED WITHIN ANY DEFINITE TIME LIMITS
WHATSOEVER. THUS, THE RECORD BEFORE THE COUNCIL IN THIS CASE SUPPORTS
AN INTERPRETATION OF THE PROPOSAL WHICH WOULD PERMIT DELAYS OF
INDEFINITE DURATION IN IMPLEMENTING EMPLOYEE SUSPENSION ACTIONS IN CASES
THAT ACTUALLY PROCEED TO ARBITRATION.
AS SO CONSTRUED, THE PROPOSAL UNDER CONSIDERATION HEAR BEARS NO
MATERIAL DIFFERENCE FROM THE PROPOSAL IN NATIONAL TREASURY EMPLOYEES
UNION AND BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, DEPARTMENT OF THE
TREASURY REQUIRING THAT, WHEN THE AGENCY DECIDES TO SUSPEND AN EMPLOYEE
FOR 30 DAYS OR LESS AND IF THE UNION INVOKES AN ARBITRATION PROCEDURE TO
DETERMINE WHETHER THE SUSPENSION IS IMPOSED FOR JUST CAUSE, THE
SUSPENSION WILL BE STAYED PENDING THE OUTCOME OF THE ARBITRATION
PROCEDURE. /3/ IN THAT CASE THE COUNCIL, RELYING ON ITS DECISIONS IN VA
RESEARCH HOSPITAL /4/ AND BLAINE, /5/ FOUND THE DISPUTED PROPOSAL
VIOLATIVE OF SECTION 12(B)(2) OF THE ORDER AND, HENCE, NONNEGOTIABLE,
STATING AT 4 OF THE COUNCIL'S DECISION:
THE COUNCIL'S DECISIONS, IN BOTH VA RESEARCH HOSPITAL AND BLAINE MAKE
CLEAR THAT
MANAGEMENT'S AUTHORITY UNDER SECTION 12(B)(2) INCLUDES THE RIGHT TO
ACT IN THE MATTERS
RESERVED UNDER THAT SECTION WITHOUT UNREASONABLE DELAY. . . . (T)HE
UNION'S PROPOSED
ARBITRATION PROCEDURE UNDER CONSIDERATION IN THIS CASE WOULD RESULT
IN POTENTIAL DELAYS OF
INDEFINITE DURATION SINCE THE PROCEDURE DOES NOT PRECISELY DEFINE AND
LIMIT THE TIME TO
PROCESS CASES THROUGH ARBITRATION BEFORE MANAGEMENT CAN ACT TO
IMPLEMENT ITS DECISION TO TAKE
DISCIPLINARY ACTION. DELAY OF INDEFINITE DURATION IS, UNDER THE
CIRCUMSTANCES OF THIS CASE,
UNREASONABLE AND INTERFERES WITH MANAGEMENT'S RIGHT TO TAKE PROMPT,
TIMELY ACTION IN A MATTER
SPECIFICALLY RESERVED TO IT UNDER THE ORDER, NAMELY THE RIGHT TO TAKE
PROMPT, TIMELY
DISCIPLINARY ACTION. STATED OTHERWISE, THE UNION'S PROPOSED
PROCEDURE HERE WOULD SO
UNREASONABLY DELAY AND IMPEDE THE EXERCISE OF THE RESERVED RIGHT TO
SUSPEND EMPLOYEES AS TO
NEGATE THAT RIGHT AND, HENCE, VIOLATES SECTION 12(B)(2) OF THE ORDER.
SINCE, AS INDICATED ABOVE, THE UNION PROPOSAL UNDER CONSIDERATION
HERE ESTABLISHES AN ARBITRATION PROCEDURE WITH POTENTIAL DELAYS OF
INDEFINITE DURATION, THE COUNCIL DECISION IN THE NATIONAL TREASURY
EMPLOYEES UNION AND BUREAU OF ALCOHOL, TOBACCO AND FIREARMS CASE IS
DISPOSITIVE OF THE DISPUTE IN THE PRESENT CASE. ACCORDINGLY, FOR THE
REASONS MORE FULLY SET OUT IN THAT CASE, WE FIND THAT THE UNION'S
PROPOSED PROCEDURE UNDER CONSIDERATION HERE WOULD SO UNREASONABLY DELAY
AND IMPEDE THE EXERCISE OF THE RESERVED RIGHT TO SUSPEND EMPLOYEES AS TO
NEGATE THAT RIGHT AND, HENCE, VIOLATES SECTION 12(B)(2) OF THE ORDER AND
IS NONNEGOTIABLE. /6/
BY THE COUNCIL.
HAROLD D. KESSLER
ACTING EXECUTIVE DIRECTOR
ISSUED: DECEMBER 20, 1978
/1/ SECTION 12(B)(2) OF THE ORDER PROVIDES IN 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--
. . . .
(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. . . .
/2/ THE SPECIFIC REQUIREMENTS OF ARTICLE 34, SECTION 5 RELIED UPON BY
THE UNION IN SUPPORT OF ITS ARGUMENT ARE: SUBSECTION A.(2) (REQUIRING
THAT AN ARBITRATION HEARING SHALL BE HELD WITHIN 30 DAYS OF THE AGENCY'S
RECEIPT OF THE UNION'S NOTICE OF APPEAL); SUBSECTION A.(3) (MANDATING
THE ISSUANCE OF AN ARBITRATOR'S DECISION WITHIN 3 WORKING DAYS AFTER
COMPLETION OF THE ARBITRATION HEARING); AND, SUBSECTION A.(4)
(PROVIDING THAT, IF AN ARBITRATION HEARING IS UNABLE TO BE HELD WITHIN
THE TIME LIMITS ESTABLISHED BY SUBSECTION A.(2) OF THE PROPOSAL, THE
AFFECTED EMPLOYEE WILL SERVE THE SUSPENSION).
/3/ NATIONAL TREASURY EMPLOYEES UNION AND BUREAU OF ALCOHOL, TOBACCO
AND FIREARMS, DEPARTMENT OF THE TREASURY, FLRC NO. 77A-58 (JAN. 27,
1978), REPORT NO. 142.
/4/ VETERANS ADMINISTRATION INDEPENDENT SERVICE EMPLOYEES UNION AND
VETERANS ADMINISTRATION RESEARCH HOSPITAL, CHICAGO, ILLINOIS, 1 FLRC
227, 230 (FLRC NO. 71A-31 (NOV. 22, 1972), REPORT NO. 31).
/5/ LOCAL 63, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
AND BLAINE AIR FORCE STATION, BLAINE, WASHINGTON, 3 FLRC 75 (FLRC NO.
74A-33 (JAN. 8, 1975), REPORT NO. 61).
/6/ THIS DECISION SHOULD NOT BE CONSTRUED AS RULING THAT A PROPOSAL
PROVIDING FOR A MAXIMUM DELAY OF 30 DAYS DURATION, WHICH PROPOSAL IS NOT
BEFORE US IN THE PRESENT CASE, WOULD BE CONSISTENT WITH SECTION 12(B)(2)
OF THE ORDER.
6 FLRC 981; FLRC NO. 78A-129; DECEMBER 19, 1978.
(SYNOPSIS) FLRC NO. 78A-129
THE COUNCIL OF AFGE LOCALS IN THE BOARD AND THE UNITED STATES
RAILROAD RETIREMENT BOARD (SEMBOWER, ARBITRATOR). THE ARBITRATOR DENIED
THE UNION'S GRIEVANCE CONCERNING THE CANCELLATION OF A VACANCY
ANNOUNCEMENT BY THE ACTIVITY. THE UNION APPEALED TO THE COUNCIL,
REQUESTING THAT THE COUNCIL ACCEPT ITS PETITION FOR REVIEW OF THE
ARBITRATOR'S AWARD BASED ON FOUR EXCEPTIONS ALLEGING (1) THAT THE AWARD
WAS BASED ON NON-FACTS; (2) AND (3),THAT THE ARBITRATOR FAILED TO
CONSIDER CERTAIN PERTINENT EVIDENCE; AND (4) THAT THE ARBITRATOR
MISINTERPRETED AND MISAPPLIED THE PRECEDENTS CITED IN HIS POSITION.
COUNCIL ACTION (DECEMBER 19, 1978). THE COUNCIL HELD THAT THE
UNION'S PETITION DID NOT DESCRIBE FACTS AND CIRCUMSTANCES NECESSARY TO
SUPPORT ITS EXCEPTIONS. 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.
DECEMBER 19, 1978
MR. ROBERT C. NELSON, PRESIDENT
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 375
844 RUSH STREET
CHICAGO, ILLINOIS 60611
RE: THE COUNCIL OF AFGE LOCALS IN THE
BOARD AND UNITED STATES RAILROAD
RETIREMENT BOARD (SEMBOWER,
ARBITRATOR), FLRC NO. 78A-129
DEAR MR. NELSON:
THE COUNCIL HAS CAREFULLY CONSIDERED THE UNION'S PETITION FOR REVIEW
OF THE ARBITRATOR'S AWARD IN THE ABOVE-ENTITLED CASE.
ACCORDING TO THE ARBITRATOR'S AWARD, THE DISPUTE IN THIS MATTER AROSE
WHEN THE AGENCY CANCELLED A JOB POSTING FOR A VACANCY IN A PARTICULAR
POSITION. INITIALLY, THE AGENCY HAD DECIDED TO FILL THE POSITION
VACANCY BY PROMOTION PURSUANT TO THE MERIT PROMOTION PLAN.
SUBSEQUENTLY, HOWEVER, AND BEFORE THE SELECTION PANEL WHICH WAS CONVENED
PURSUANT TO THE MERIT PROMOTION PLAN HAD COMPLETED ITS RESPONSIBILITIES,
THE AGENCY RECONSIDERED THIS DECISION AND CANCELLED THE VACANCY POSTING.
THEREAFTER, THE AGENCY FILLED THE POSITION NONCOMPETITIVELY BY
REASSIGNMENT. A GRIEVANCE WAS FILED WHICH CLAIMED THAT THE CANCELLATION
OF THE VACANCY POSTING BEFORE THE SELECTION BOARD COMPLETED ITS WORK
VIOLATED MERIT PROMOTION POLICY. THE GRIEVANCE WAS ULTIMATELY SUBMITTED
TO ARBITRATION.
ALTHOUGH THE ARBITRATOR SPECIFICALLY RECOGNIZED A NUMBER OF
DEFICIENCIES IN THE PERFORMANCE OF THE SELECTION PANEL, HE FORMULATED
THE "ONLY REAL QUESTION BEFORE (HIM)" TO BE:
(W)HETHER OR NOT A POSTED VACANCY MAY BE WITHDRAWN AND ANOTHER
PROMOTION METHOD USED BEFORE
A PANEL HAS COMPLETED ITS WORK. . . .
REFERRING TO A PRIOR DECISION OF THE COUNCIL, /1/ THE ARBITRATOR
CONCLUDED:
(T)HE RULE APPEARS TO BE THAT AN AGENCY IN THE EXERCISE OF ITS
MANAGERIAL FUNCTIONS MAY
CANCEL A POSTING, AND INDEED THE REFERENCE TO "CANCELLATION OF
POSTING" IN SECTION VII OF THE
MERIT PROMOTION PROGRAM CLEARLY SO IMPLIES.
HOWEVER, AT THE SAME TIME, THE ARBITRATOR RECOGNIZED "THAT IF AN
AGENCY HAS A CLEAR AND UNQUESTIONED CONTINUING INTENTION TO FILL THE
POSITION,' THE MERIT PROMOTION PROGRAM MUST BE ALLOWED TO RUN ITS
COURSE." THUS, THE ARBITRATOR FOUND IT NECESSARY TO FURTHER CONSIDER
WHETHER THE FILLING OF THE POSITION BY REASSIGNMENT "MORE THAN A MONTH
AFTER THE POSTING WAS CANCELLED WAS AN ENTIRELY INDEPENDENT ACT NOT
CONNECTED WITH THE ORIGINAL POSTING AT ALL." IN THIS REGARD, HE FOUND
THE TESTIMONY UNCONTROVERTED THAT THE REASSIGNMENT OF THE EMPLOYEE TO
THE POSITION IN DISPUTE WAS NOT CONSIDERED BY THE AGENCY "UNTIL AFTER
THE POSING WAS CANCELLED." ACCORDINGLY, THE ARBITRATOR HELD THAT "THE
CANCELLATION OF THE POSTING MUST BE SUSTAINED." THUS, IN HIS AWARD THE
ARBITRATOR DENIED THE UNION'S GRIEVANCE.
THE UNION REQUESTS THAT THE COUNCIL ACCEPT ITS PETITION FOR REVIEW OF
THE ARBITRATOR'S AWARD ON THE BASIS OF ITS EXCEPTIONS DISCUSSED BELOW.
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."
IN ITS FIRST EXCEPTION TO THE AWARD, THE UNION CONTENDS THAT THE
ARBITRATOR'S AWARD IS BASED ON "NON-FACTS." IN SUPPORT OF THIS
EXCEPTION, THE UNION ARGUES THAT THE AWARD TURNS ALMOST SOLELY ON
MANAGEMENT NOT HAVING A CLEAR AND UNQUESTIONED INTENTION TO FILL THE
POSITION. HOWEVER, THIS CONCLUSION IS ASSERTED TO BE TOTALLY
UNSUPPORTED BY THE FACTS. THE UNION ALSO MAINTAINS THAT THE
ARBITRATOR'S "LOGIC" WAS FAULTY IN THAT HE WRONGLY FOCUSED HIS ATTENTION
ON THE EMPLOYEE ULTIMATELY REASSIGNED TO THE POSITION. THIS ATTENTION
IS ASSERTED TO BE "FAULTY BECAUSE THE CRUCIAL POINT IS NOT WHO WOULD BE
REASSIGNED BUT WHETHER OR NOT REASSIGNMENT WAS CONTEMPLATED BEFORE THE
VACANCY ANNOUNCEMENT WAS CANCELLED." CONTENDING THAT THE "EVIDENCE
CLEARLY SHOWS THAT . . . REASSIGNMENT . . . WAS CONTEMPLATED BEFORE THE
VACANCY ANNOUNCEMENT WAS CANCELLED" AND THAT "IT WAS THE INTENT TO
SWITCH SELECTION METHODS . . . WHICH IS THE OFFENSE IN THIS CASE," THE
UNION MAINTAINS THAT THEREFORE THE CANCELLATION VIOLATED THE MERIT
PROBLEM POLICY AND CANNOT BE SUSTAINED.
THE COUNCIL HAS PREVIOUSLY STATED THAT IT WILL ACCEPT A PETITION FOR
REVIEW OF AN ARBITRATION AWARD WHERE IT APPEARS, BASED UPON THE FACTS
AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE EXCEPTION PRESENTS
A GROUND THAT "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." OFFICE OF ECONOMIC
OPPORTUNITY, KANSAS CITY REGIONAL OFFICE, REGION VII AND NATIONAL
COUNCIL OF OEO LOCALS, LOCAL 2691, AFL-CIO (YAROWSKY, ARBITRATOR), 3
FLRC 533, 536 (FLRC NO. 74A-102 (AUG. 15, 1975), REPORT NO. 81).
HOWEVER, THE COUNCIL IS OF THE OPINION THAT THE PETITION DOES NOT
DESCRIBE THE FACTS AND CIRCUMSTANCES NECESSARY TO SUPPORT THIS
EXCEPTION. THAT IS, THE PETITION FOR REVIEW DOES NOT PRESENT FACTS AND
CIRCUMSTANCES TO DEMONSTRATE THAT THE CENTRAL FACT UNDERLYING THE AWARD
IS CONCEDEDLY ERRONEOUS AND IN EFFECT A GROSS MISTAKE OF FACT. INSTEAD,
BY ARGUING THAT THE ARBITRATOR'S CONCLUSION IS "TOTALLY UNSUPPORTED BY
THE FACTS," THAT HIS "LOGIC IS FAULTY," AND THAT "THE EVIDENCE CLEARLY
SHOWS" SOMETHING CONTRARY TO WHAT THE ARBITRATOR FOUND, THE UNION'S
ASSERTIONS PERTAIN IN SUBSTANCE TO NOTHING MORE THAN DISAGREEMENT WITH
THE ARBITRATOR'S FINDINGS AS TO THE FACTS AND WITH THE SPECIFIC
REASONING AND CONCLUSIONS EMPLOYED BY THE ARBITRATOR IN REACHING HIS
AWARD. THE COUNCIL HAS CONSISTENTLY HELD THAT IT IS THE AWARD RATHER
THAN THE SPECIFIC REASONING AND CONCLUSIONS EMPLOYED BY THE ARBITRATOR
THAT IS SUBJECT TO CHALLENGE AND THE ARBITRATOR'S FINDINGS AS TO THE
FACTS ARE NOT TO BE QUESTIONED UPON APPEAL. THE NATIONAL LABOR
RELATIONS BOARD UNION (NLRBU) AND THE NATIONAL LABOR RELATIONS BOARD
(NLRB) (SINICROPI, ARBITRATOR), 5 FLRC 764 (FLRC NO. 77A-23 (AUG. 25,
1977), REPORT NO. 135) AND CASES CITED THEREIN. ACCORDINGLY, THE
UNION'S FIRST EXCEPTION PROVIDES NO BASIS FOR ACCEPTANCE OF ITS PETITION
FOR REVIEW UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE.
IN ITS SECOND AND THIRD EXCEPTIONS THE UNION CONTENDS THAT THE
ARBITRATOR FAILED TO CONSIDER PERTINENT EVIDENCE "REGARDING VIOLATIONS
OF THE PROMOTION PROCEDURES BY THE MANAGEMENT PANEL MEMBERS AND THE
SELECTION OFFICER," AND HE FAILED TO CONSIDER PERTINENT EVIDENCE SINCE
HE DID NOT RESOLVE THE CONFLICT IN TESTIMONY AS TO THE REASON FOR THE
CANCELLATION OF THE VACANCY POSTING. IN SUPPORT OF THESE EXCEPTIONS,
THE UNION CITES THE BRIEF WHICH IT SUBMITTED TO THE ARBITRATOR AND
TESTIMONY FROM THE ARBITRATION HEARING PERTAINING TO SUCH VIOLATIONS.
THE UNION THUS MAINTAINS THAT THE "ARBITRATOR FAILED TOTALLY TO COME TO
GRIPS WITH THIS MATTER."
THE COUNCIL HAS PREVIOUSLY 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 DURING THE COURSE OF
THE ARBITRATION HEARING, THE ARBITRATOR REFUSED TO HEAR EVIDENCE
PERTINENT AND MATERIAL TO THE CONTROVERSY BEFORE HIM OR HER AND, HENCE,
DENIED A PARTY A FAIR HEARING. E.G., AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2677 AND COMMUNITY SERVICES ADMINISTRATION
(LUNDQUIST, ARBITRATOR), 4 FLRC 106 (FLRC NO. 75A-105 (JAN. 30, 1976),
REPORT NO. 96). HOWEVER, THE COUNCIL IS OF THE OPINION THAT THE
PETITION DOES NOT DESCRIBE FACTS AND CIRCUMSTANCES NECESSARY TO SUPPORT
THESE EXCEPTIONS. THAT IS, THE PETITION FOR REVIEW DOES NOT PRESENT
FACTS AND CIRCUMSTANCES TO DEMONSTRATE THAT THE ARBITRATOR REFUSED TO
HEAR CERTAIN TESTIMONY, OR THAT HE REFUSED TO ACCEPT CERTAIN EVIDENCE.
INSTEAD, THE UNION'S EXCEPTIONS ABOUT THE ARBITRATOR'S "CONSIDERATION"
OF EVIDENCE GOES TO EVIDENCE WHICH WAS ACTUALLY ACCEPTED AND TESTIMONY
ACTUALLY HEARD. THE SUBSTANCE OF THE UNION'S SECOND AND THIRD
EXCEPTIONS APPEARS TO AGAIN CONSTITUTE DISAGREEMENT WITH THE
ARBITRATOR'S FINDINGS AS TO THE FACTS AND HIS REASONING AND CONCLUSIONS
EMPLOYED IN REACHING HIS AWARD. SUCH ASSERTIONS DO NOT PRESENT FACTS
AND CIRCUMSTANCES TO SUPPORT AN EXCEPTION THAT THE ARBITRATOR REFUSED TO
HEAR PERTINENT AND MATERIAL EVIDENCE AND, HENCE, DENIED A PARTY A FAIR
HEARING. ACCORDINGLY, THE SECOND AND THIRD EXCEPTIONS PROVIDE NO BASIS
FOR ACCEPTANCE OF THE UNION'S PETITION UNDER THE COUNCIL'S RULES.
IN ITS FINAL EXCEPTION THE UNION CONTENDS "THAT THE ARBITRATOR
MISINTERPRETED AND MISAPPLIED THE PRECEDENTS CITED IN THE CASE." IN
SUPPORT THE UNION ARGUES THAT NATIONAL COUNCIL OF OEO LOCALS, AFGE,
AFL-CIO AND OFFICE OF ECONOMIC OPPORTUNITY (HARKLESS, ARBITRATOR) 2,
FLRC 293 (FLRC NO. 73A-67 (DEC. 6, 1974), REPORT NO. 61), DOES NOT APPLY
TO THIS CASE SINCE THE OEO CASE CONCERNED A DECISION TO FILL OR NOT TO
FILL A POSITION RATHER THAN A DECISION TO SWITCH SELECTION METHODS. IN
THE COUNCIL'S OPINION THE UNION'S CONTENTIONS DO NOT PRESENT FACTS AND
CIRCUMSTANCES TO SUPPORT A CONTENTION THAT THE AWARD IS CONTRARY TO THE
ORDER AS INTERPRETED AND APPLIED BY THE COUNCIL, BUT INSTEAD CONSTITUTE
NOTHING MORE THAN MERE DISAGREEMENT WITH THE ARBITRATOR'S REASONING IN
REACHING HIS AWARD. THUS, THIS EXCEPTION AND SUCH CONTENTIONS DO NOT
ASSERT ANY GROUND FOR REVIEW UNDER SECTION 2411.32 OF THE COUNCIL'S
RULES. ACCORDINGLY, THIS EXCEPTION PROVIDES.NO BASIS FOR ACCEPTANCE OF
THE UNION'S PETITION.
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 THE COUNCIL'S RULES OF PROCEDURE.
BY THE COUNCIL.
SINCERELY,
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
CC: W. ADAMS
USRRB
/1/ THE ARBITRATOR SPECIFICALLY NOTED THE COUNCIL'S DECISION IN
NATIONAL COUNCIL OF OEO LOCALS, AFGE, AFL-CIO AND OFFICE OF ECONOMIC
OPPORTUNITY (HARKLESS, ARBITRATOR), 2 FLRC 293 (FLRC NO. 73A-67 (DEC. 6,
1974), REPORT NO. 61).
6 FLRC 977; FLRC NO. 78A-126; DECEMBER 19, 1978.
(SYNOPSIS) FLRC NO. 78A-126
DEPARTMENT OF THE NAVY, NAVAL AIR REWORK FACILITY, NAVAL AIR STATION,
NORTH ISLAND, SAN DIEGO, CALIFORNIA, ASSISTANT SECRETARY CASE NO.
72-7390(CA). THE ASSISTANT SECRETARY DENIED THE REQUEST FOR REVIEW
FILED BY THE UNION (NATIONAL ASSOCIATION OF GOVERNMENT INSPECTORS AND
QUALITY ASSURANCE PERSONNEL), SEEKING REVERSAL OF THE REGIONAL
ADMINISTRATOR'S DISMISSAL OF THE UNION'S SECTION 19(A) COMPLAINT AGAINST
THE ACTIVITY. THE UNION APPEALED TO THE COUNCIL, ALLEGING THAT THE
ASSISTANT SECRETARY'S DECISION WAS ARBITRARY AND CAPRICIOUS AND RAISED
MAJOR POLICY ISSUES.
COUNCIL ACTION (DECEMBER 19, 1978). THE COUNCIL HELD THAT THE
UNION'S PETITION FOR REVIEW DID NOT MEET THE REQUIREMENTS OF SECTION
2411.12 OF THE COUNCIL'S RULES OF PROCEDURE; THAT IS, THE DECISION OF
THE ASSISTANT SECRETARY DID NOT APPEAR ARBITRARY AND CAPRICIOUS OR RAISE
ANY M MAJOR POLICY ISSUES. ACCORDINGLY, THE COUNCIL DENIED THE UNION'S
PETITION FOR REVIEW.
DECEMBER 19, 1978
MR. LESLIE I. MAYER
NATIONAL PRESIDENT AND PRESIDENT
OF UNIT 8
NATIONAL ASSOCIATION OF GOVERNMENT
INSPECTORS AND QUALITY ASSURANCE PERSONNEL
2662 HARCOURT DRIVE
SAN DIEGO, CALIFORNIA 92123
RE: DEPARTMENT OF THE NAVY, NAVAL AIR
REWORK FACILITY, NAVAL AIR STATION,
NORTH ISLAND, SAN DIEGO, CALIFORNIA,
ASSISTANT SECRETARY CASE NO. 72-7390(CA),
FLRC NO. 78A-126
DEAR MR. MAYER:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
AS FOUND BY THE ASSISTANT SECRETARY, THE NATIONAL ASSOCIATION OF
GOVERNMENT INSPECTORS AND QUALITY ASSURANCE PERSONNEL (THE UNION) FILED
AN UNFAIR LABOR PRACTICE COMPLAINT CONTAINING FIVE SEPARATE ALLEGATIONS
THAT THE NAVAL AIR REWORK FACILITY, NAVAL AIR STATION, NORTH ISLAND, SAN
DIEGO, CALIFORNIA (THE ACTIVITY) VIOLATED SECTION 19(A) OF THE ORDER AND
VARIOUS PROVISIONS OF THE PARTIES' NEGOTIATED AGREEMENT. MORE
SPECIFICALLY, THE COMPLAINT ALLEGED THAT THE ACTIVITY VIOLATED THE ORDER
AND THE PARTIES' NEGOTIATED AGREEMENT WHEN: (1) A UNION OFFICER
RECEIVED A LETTER OF CAUTION FOR ALLEGEDLY LEAVING HIS WORK SITE,
WITHOUT PERMISSION, TO ATTEND TO UNION BUSINESS; (2) A UNION OFFICER
WAS NOT ALLOWED TO SERVE SIMULTANEOUSLY AS ACTING SUPERVISOR AND
SECRETARY OF THE UNION; (3) A UNION OFFICER WAS TRANSFERRED FROM ONE
WORK SITE TO ANOTHER WITHOUT PRIOR CONSULTATION WITH THE UNION; (4) AN
EMPLOYEE RECEIVED A LETTER OF CAUTION WITHOUT PRIOR NOTICE TO THE UNION;
AND (5) TWO EMPLOYEES WERE REQUIRED TO SIGN WAIVERS OF THEIR RIGHTS TO
OVERTIME PAY FOR TRAVELING DURING NON-WORK TIME.
THE ASSISTANT SECRETARY FOUND THAT NO REASONABLE BASIS HAD BEEN
ESTABLISHED FOR ANY OF THE ALLEGATIONS CONTAINED IN THE COMPLAINT, AND
THAT, CONSEQUENTLY, FURTHER PROCEEDINGS WERE UNWARRANTED. IN SO
CONCLUDING, THE ASSISTANT SECRETARY STATED AS TO ALLEGATION (1) THAT
ISSUANCE OF A LETTER OF CAUTION TO THE UNION OFFICER, "STANDING ALONE,
DOES NOT ESTABLISH A REASONABLE BASIS FOR THIS PORTION OF THE
COMPLAINT." WITH REGARD TO ALLEGATION (2), THE ASSISTANT SECRETARY,
FINDING THAT NO BASIS FOR THIS ALLEGATION HAD BEEN ESTABLISHED, ADOPTED
THE REGIONAL ADMINISTRATOR'S CONCLUSION THAT "THE (ACTIVITY'S) ACTIONS
IN RESTRICTING (THE UNION VICE PRESIDENT'S) UNION ACTIVITY, WHILE
SERVING AS AN ACTING SUPERVISOR, WERE NOT UNREASONABLE IN LIGHT OF THE
POTENTIAL CONFLICT OF INTEREST CREATED BY HAVING A SUPERVISOR PERFORM
UNION DUTIES." THE ASSISTANT SECRETARY FOUND ALLEGATION (3) TO BE
UNSUPPORTED BY THE EVIDENCE, NOTING THAT THE TRANSFERRED UNION OFFICER,
"AS A TRAINEE INSPECTOR, WAS PART OF AN ESTABLISHED PROGRAM WHICH
INVOLVED REQUIRED ROTATION AMONG ASSIGNMENTS AND, HENCE, AMONG THE
DIFFERENT BUILDINGS OF THE FACILITY." THE ASSISTANT SECRETARY FURTHER
NOTED THE ACTIVITY'S UNCONTROVERTED STATEMENT THAT THE UNION WAS
CONSULTED PRIOR TO THE INITIAL TRANSFER OF THE UNION OFFICER WHICH BEGAN
THE ROTATION. AS TO ALLEGATION (4), THE ASSISTANT SECRETARY FOUND NO
BASIS IN THE ORDER FOR CONCLUDING THAT THE UNION MUST BE NOTIFIED WHEN
THE ACTIVITY DISCIPLINES AN EMPLOYEE. /1/ FINALLY, WITH REGARD TO
ALLEGATION (5), THE ASSISTANT SECRETARY FOUND THAT NO EVIDENCE WAS
SUBMITTED TO SHOW THAT THE ACTIVITY'S CONDUCT WAS MOTIVATED BY AN INTENT
TO DISCREDIT THE UNION OR TO DISCOURAGE UNION MEMBERSHIP OR ACTIVITY,
AND THAT THE UNION'S RELATED ALLEGATIONS WERE SIMILARLY UNSUPPORTED.
ACCORDINGLY, THE ASSISTANT SECRETARY DENIED THE UNION'S REQUEST FOR
REVIEW SEEKING REVERSAL OF THE REGIONAL ADMINISTRATOR'S DISMISSAL OF THE
COMPLAINT.
IN YOUR PETITION FOR REVIEW ON BEHALF OF THE UNION, YOU ALLEGE THAT
THE ASSISTANT SECRETARY'S DECISION WAS ARBITRARY AND CAPRICIOUS BECAUSE,
IN ESSENCE, THE UNREFUTED TESTIMONY AND DOCUMENTS PRODUCED BY THE UNION,
"TOGETHER WITH THE REASONABLE INFERENCES THEREFROM, ALL SUPPORT THE
ALLEGATIONS OF UNFAIR LABOR PRACTICES IN VIOLATION OF THE ORDER." YOU
FURTHER ALLEGE THAT THE ASSISTANT SECRETARY'S DECISION RAISES MAJOR
POLICY ISSUES, AS FOLLOWS:
THE (FOUR) INCIDENTS, ALTHOUGH SEPARATE, SHOW A COURSE OF UNILATERAL
AGENCY ACTION TO
BYPASS THE (UNION) AND TO UNJUSTLY PENALIZE AND HARASS ITS OFFICERS
SO AS TO INTERFERE WITH,
COERCE, RESTRAIN, AND DISCRIMINATE AGAINST ITS MEMBERS TO DISCOURAGE
MEMBERSHIP THEREIN, IN
VIOLATION OF EXECUTIVE ORDER 11491, AS AMENDED.
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 OR RAISE ANY MAJOR POLICY ISSUES.
WITH RESPECT TO YOUR CONTENTIONS 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 THE CIRCUMSTANCES OF THIS CASE. IN THIS REGARD, YOUR
ASSERTION THAT THE STATEMENTS AND DOCUMENTS FURNISHED BY THE UNION "ALL
SUPPORT THE ALLEGATIONS OF UNFAIR LABOR PRACTICES" CONSTITUTES, IN
ESSENCE, NOTHING MORE THAN DISAGREEMENT WITH THE ASSISTANT S5ECRETARY'S
CONTRARY DETERMINATION AND, THEREFORE, PROVIDES NO BASIS FOR COUNCIL
REVIEW. AS TO YOUR ALLEGATION THAT THE ASSISTANT SECRETARY'S DECISION
PRESENTS MAJOR POLICY ISSUES, YOUR PETITION FOR REVIEW FAILS TO ALLEGE
OR SHOW THAT THE DECISION HEREIN IS INCONSISTENT WITH THE PURPOSES AND
POLICIES OF THE ORDER. RATHER, YOUR ASSERTION THAT THE FOUR INCIDENTS
"SHOW A COURSE OF UNILATERAL AGENCY ACTION TO BYPASS THE (UNION) AND
UNJUSTLY PENALIZE AND HARASS ITS OFFICERS SO AS TO INTERFERE WITH,
COERCE, RESTRAIN, AND DISCRIMINATE AGAINST ITS MEMBERS TO DISCOURAGE
MEMBERSHIP THEREIN," ESSENTIALLY REFLECTS YOUR DISAGREEMENT WITH THE
ASSISTANT SECRETARY'S CONCLUSION" . . . THAT NO REASONABLE BASIS HAS
BEEN ESTABLISHED FOR ANY OF THE ALLEGATIONS CONTAINED IN THE COMPLAINT,
AND THAT, CONSEQUENTLY, FURTHER PROCEEDINGS IN THESE MATTERS ARE
UNWARRANTED." ACCORDINGLY, IN THE COUNCIL'S OPINION, NO MAJOR POLICY
ISSUE WARRANTING COUNCIL REVIEW IS THEREBY PRESENTED.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS OR PRESENT ANY MAJOR POLICY ISSUES, YOUR APPEAL FAILS TO
MEET THE REQUIREMENTS FOR REVIEW AS SET FORTH IN SECTION 2411.12 OF THE
COUNCIL'S RULES AND REGULATIONS. ACCORDINGLY, YOUR PETITION FOR REVIEW
IS HEREBY DENIED.
BY THE COUNCIL.
SINCERELY,
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
CC: A/SLMR
LABOR
R. SCHULTZ
NAVY
/1/ THE ASSISTANT SECRETARY'S FINDING ON THIS ALLEGATION IS EXPRESSLY
NOT RELIED UPON BY THE UNION IN ITS APPEAL TO THE COUNCIL HEREIN.
6 FLRC 974; FLRC NO. 78A-125; DECEMBER 19, 1978.
(SYNOPSIS) FLRC NO. 78A-125
U.S. ARMY TROOP SUPPORT AND AVIATION MATERIAL READINESS COMMAND
(TSARCOM), ST. LOUIS, MISSOURI, ASSISTANT SECRETARY CASE NO.
62-5837(CA). THE ASSISTANT SECRETARY DENIED THE REQUEST FOR REVIEW
FILED BY THE UNION (LOCAL 405, NATIONAL FEDERATION OF FEDERAL
EMPLOYEES), SEEKING REVERSAL OF THE REGIONAL ADMINISTRATOR'S DISMISSAL
OF THE UNION'S SECTION 19(A)(1) AND (6) COMPLAINT RELATED TO A PROPOSED
DISCIPLINARY ACTION AGAINST AN EMPLOYEE. THE UNION APPEALED TO THE
COUNCIL, ALLEGING THAT THE ASSISTANT SECRETARY'S DECISION WAS ARBITRARY
AND CAPRICIOUS.
COUNCIL ACTION (DECEMBER 19, 1978). THE COUNCIL HELD THAT THE
UNION'S PETITION FOR REVIEW DID NOT MEET THE REQUIREMENTS OF SECTION
2411.12 OF THE COUNCIL'S RULES OF PROCEDURE; THAT IS, THE DECISION OF
THE ASSISTANT SECRETARY DID NOT APPEAR ARBITRARY AND CAPRICIOUS AND THE
UNION NEITHER ALLEGED, NOR DID IT APPEAR, THAT THE DECISION RAISED A
MAJOR POLICY ISSUE. ACCORDINGLY, THE COUNCIL DENIED THE UNION'S
PETITION FOR REVIEW.
DECEMBER 19, 1978
MR. RICHARD J. KAISER
PRESIDENT, LOCAL 405
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES
BUILDING 107, ROOM 237
4300 GOOD FELLOW BOULEVARD
ST. LOUIS, MISSOURI 63120
RE: U.S. ARMY TROOP SUPPORT AND AVIATION
MATERIAL READINESS COMMAND (TSARCOM),
ST. LOUIS, MISSOURI, ASSISTANT SECRETARY
CASE NO. 62-5837(CA), FLRC NO. 78A-125
DEAR MR. KAISER:
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, AS FOUND BY THE ASSISTANT SECRETARY, NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCAL 405 (THE UNION) FILED AN UNFAIR
LABOR PRACTICE COMPLAINT AGAINST THE U.S. ARMY TROOP SUPPORT AND
AVIATION MATERIAL READINESS COMMAND (TSARCOM), ST. LOUIS, MISSOURI (THE
ACTIVITY) ALLEGING THAT THE ACTIVITY VIOLATED SECTION 19(A)(1) AND (6)
OF THE ORDER. THE COMPLAINT APPEARS TO HAVE CONCERNED AN ALLEGED
FAILURE TO NOTIFY AN EMPLOYEE OF PROPOSED DISCIPLINARY ACTION AGAINST
HER WITHIN 15 CALENDAR DAYS OF THE INCIDENT WHICH PROMPTED THE
DISCIPLINARY ACTION, THEREBY ALLEGEDLY BREACHING THE PARTIES' NEGOTIATED
AGREEMENT.
THE ASSISTANT SECRETARY, IN AGREEMENT WITH THE REGIONAL ADMINISTRATOR
(RA), FOUND THAT A REASONABLE BASIS FOR THE COMPLAINT HAD NOT BEEN
ESTABLISHED INASMUCH AS THE INSTANT DISPUTE CONCERNED ESSENTIALLY A
DISPUTE OVER CONTRACT INTERPRETATION AS DISTINGUISHED FROM A CLEAR
UNILATERAL BREACH OF A NEGOTIATED AGREEMENT, AND, CONSEQUENTLY, THE
REMEDY FOR SUCH MATTERS WOULD BE WITHIN THE GRIEVANCE-ARBITRATION
MACHINERY OF THE PARTIES' NEGOTIATED AGREEMENT. ACCORDINGLY, HE DENIED
THE UNION'S REQUEST FOR REVIEW SEEKING REVERSAL OF THE RA'S DISMISSAL OF
THE INSTANT COMPLAINT.
IN YOUR PETITION FOR REVIEW ON BEHALF OF THE UNION, YOU ALLEGE THAT
THE ASSISTANT SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS IN THAT
THE ASSISTANT SECRETARY AND THE RA FAILED TO ADEQUATELY FAMILIARIZE
THEMSELVES WITH THE PARTIES' COLLECTIVE BARGAINING AGREEMENT. YOU
FURTHER CONTEND THAT BOTH THE RA AND THE ASSISTANT SECRETARY WERE
FURNISHED COPIES OF THE PARTIES' AGREEMENT AND THAT, IN ACCORDANCE WITH
THAT AGREEMENT AS WELL AS SECTION 19(D) OF THE ORDER, THE UNION "HAD THE
OPTION OF SEEKING REDRESS UNDER THE PROCEDURE OF THE UNFAIR LABOR
PRACTICE."
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 ARBITRARY AND CAPRICIOUS
AND YOU NEITHER ALLEGE, NOR DOES IT APPEAR, THAT THE DECISION RAISES A
MAJOR POLICY ISSUE.
THUS, WITH REGARD TO YOUR ALLEGATION THAT THE ASSISTANT SECRETARY'S
DECISION IS ARBITRARY AND CAPRICIOUS, IT DOES NOT APPEAR THAT THE
ASSISTANT SECRETARY ACTED WITHOUT REASONABLE JUSTIFICATION IN REACHING
HIS DECISION IN THE CIRCUMSTANCES OF THIS CASE. RATHER, YOUR ASSERTIONS
CONSTITUTE, IN ESSENCE, NOTHING MORE THAN MERE DISAGREEMENT WITH THE
ASSISTANT SECRETARY'S DETERMINATION THAT NO REASONABLE BASIS FOR THE
COMPLAINT HAD BEEN ESTABLISHED AS THE INSTANT DISPUTE CONCERNS
ESSENTIALLY A DISPUTE OVER CONTRACT INTERPRETATION AS DISTINGUISHED FROM
A CLEAR UNILATERAL BREACH OF A NEGOTIATED AGREEMENT. MOREOVER, YOUR
APPEAL NEITHER ALLEGES NOR CONTAINS SUPPORT FOR A FINDING THAT THERE IS
A CLEAR, UNEXPLAINED INCONSISTENCY BETWEEN THE ASSISTANT SECRETARY'S
DECISION HEREIN AND HIS PREVIOUSLY PUBLISHED DECISIONS, OR THAT SUCH
DECISION IS INCONSISTENT WITH THE PURPOSES AND POLICIES OF THE ORDER.
/1/
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS AND YOU NEITHER ALLEGE, NOR DOES IT APPEAR, THAT THE
DECISION RAISES A MAJOR POLICY ISSUE, YOUR APPEAL FAILS TO MEET THE
REQUIREMENTS FOR REVIEW AS SET FORTH IN SECTION 2411.12 OF THE COUNCIL'S
RULES. ACCORDINGLY, YOUR PETITION FOR REVIEW IS HEREBY DENIED.
BY THE COUNCIL.
SINCERELY,
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
CC: A/SLMR
LABOR
ARMY
/1/ SEE, E.G., DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
CHICAGO DISTRICT, ILLINOIS, ASSISTANT SECRETARY CASE NO. 50-13155(CA), 5
FLRC 895 (FLRC NO. 77A-79 (OCT. 20, 1977), REPORT NO. 138).
6 FLRC 968; FLRC NO. 78A-118; DECEMBER 19, 1978.
(SYNOPSIS) FLRC NO. 78A-118
FEDERAL AVIATION ADMINISTRATION, EASTERN REGION AND NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R2-73 (FOSTER, ARBITRATOR).
THE ARBITRATOR CONCLUDED THAT THE ACTIVITY DID NOT VIOLATE THE PARTIES'
AGREEMENT IN THE PROMOTION ACTION AT ISSUE, AND DENIED THE GRIEVANCE.
THE UNION FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD WITH THE COUNCIL,
ALLEGING THAT THE AWARD VIOLATED AGENCY REGULATIONS AND THE FEDERAL
PERSONNEL MANUAL.
COUNCIL ACTION (DECEMBER 19, 1978). THE COUNCIL HELD THAT THE
UNION'S PETITION DID NOT PROVIDE THE NECESSARY FACTS AND CIRCUMSTANCES
TO SUPPORT ITS EXCEPTIONS. 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.
DECEMBER 19, 1978
MR. RICHARD G. REMMES
ATTORNEY
NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES
285 DORCHESTER AVENUE
BOSTON, MASSACHUSETTS 02127
RE: FEDERAL AVIATION ADMINISTRATION,
EASTERN REGION AND NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES,
LOCAL R2-73 (FOSTER, ARBITRATOR),
FLRC NO. 78A-118
DEAR MR. REMMES:
THE COUNCIL HAS CAREFULLY CONSIDERED THE UNION'S PETITION FOR REVIEW
OF THE ARBITRATOR'S AWARD FILED IN THE ABOVE-ENTITLED CASE.
ACCORDING TO THE ARBITRATOR'S AWARD, THE DISPUTE IN THIS MATTER
CONCERNED THE PROCEDURES THE FEDERAL AVIATION ADMINISTRATION, EASTERN
REGION (THE ACTIVITY), FOLLOWED IN ANNOUNCING AND FILLING A CERTAIN
VACANCY UNDER ITS MERIT PROMOTION PLAN. ON NOVEMBER 21, 1977 THE
ACTIVITY POSTED AN ANNOUNCEMENT FOR A POSITION OF ELECTRONIC TECHNICIAN,
GS-856-13. A FEW DAYS LATER, THE PROMOTION ANNOUNCEMENT WAS AMENDED TO
DESCRIBE THE VACANCY AS "ELECTRONIC TECHNICIAN OR ELECTRONIC ENGINEER."
THE ORIGINAL AND AMENDED ANNOUNCEMENTS BOTH HAD OPENING DATES OF
NOVEMBER 21, 1977, AND CLOSING DATES OF DECEMBER 12, 1977. THE
FOLLOWING STATEMENTS WERE INCLUDED:
NO APPLICATION WILL BE ACCEPTED AFTER THE CLOSING DATE.
CANDIDATES WHO FAIL TO SUBMIT THE REQUIRED FORMS WILL NOT BE
CONSIDERED.
ON DECEMBER 23, 1977, A LIST OF SIX ELIGIBLE CANDIDATES (INCLUDING
THE THREE GRIEVANTS IN THIS CASE) WAS FORWARDED TO THE SELECTING
OFFICIAL. IN EARLY JANUARY 1978, MR. OTIS TURNEY, AN ELECTRONIC
ENGINEER, REQUESTED THAT HE BE CONSIDERED FOR THE POSITION, STATING THAT
HE HAD NOT BEEN AWAY FROM HIS DESK IN THE REGIONAL OFFICE ON DETAIL AND
ALSO HAD BEEN ON VACATION. THE PERSONNEL OFFICIAL HANDLING THE MATTER
ASCERTAINED THAT NO SELECTION HAD YET BEEN MADE FOR THE POSITION, THAT
MR. TURNEY MET THE QUALIFICATIONS FOR THE POSITION, AND THAT, IN HIS
ESTIMATION, IT APPEARED THAT MR. TURNEY CAME WITHIN THE PROCEDURES FOR
DEALING WITH EMPLOYEES WHO ARE ABSENT WHEN PROMOTION ANNOUNCEMENTS ARE
ISSUED. HE THEREFORE ACCEPTED MR. TURNEY'S APPLICATION AND ADDED MR.
TURNEY'S NAME TO AN AMENDED PROMOTION CERTIFICATE WHICH HE FORWARDED TO
THE SELECTING OFFICIAL. NONE OF THE SIX CANDIDATES ON THE ORIGINAL
CERTIFICATE OF ELIGIBLES WAS REMOVED FROM THE LIST.
THE SELECTING OFFICIAL TESTIFIED AT THE ARBITRATION THAT HE
CONSIDERED ALL THE NAMES ON THE LIST AND CONSULTED ALL THE CANDIDATES'
RECORDS, AND DETERMINED THAT MR. TURNEY WAS THE BEST QUALIFIED FOR THE
JOB. MR. TURNEY WAS SELECTED AND THE OTHER CANDIDATES WERE ADVISED OF
THEIR NONSELECTION.
THREE OF THE NONSELECTED CANDIDATES FILED GRIEVANCES, CHARGING THE
ACTIVITY WITH VIOLATION OF MERIT PROMOTION PLAN PROCEDURES IN THE
SELECTION OF MR. TURNEY. THE MATTER WAS ULTIMATELY SUBMITTED TO
ARBITRATION.
THE ARBITRATOR STATED THAT THE PARTIES AGREED TO THE FOLLOWING
STATEMENT OF THE ISSUE:
WHETHER THE EMPLOYER VIOLATED ARTICLE XII, SECTIONS 1 AND 5 OF THE
AGREEMENT /1/ REGARDING
PROMOTION NUMBER FPP-AEA-78-60(AF-10)? IF SO, WHAT SHOULD THE REMEDY
BE?
THE ARBITRATOR DENIED THE GRIEVANCE, CONCLUDING THAT THE ACTIVITY DID
NOT VIOLATE THE ABOVE-CITED AGREEMENT PROVISION IN THE PROMOTION ACTION
AT ISSUE. THE ARBITRATOR STATED THAT THE EVIDENCE FAILED TO ESTABLISH
THAT MR. TURNEY'S SELECTION WAS BASED ON PERSONAL BIAS OR
DISCRIMINATION. HE FOUND THAT MR. TURNEY'S NAME WAS ADDED TO THE
PROMOTION LIST AFTER THE CLOSE OF THE ANNOUNCEMENT AND BEFORE A
SELECTION WAS MADE IN PROPER APPLICATION OF THE ABSENT EMPLOYEE
CRITERIA. HE ALSO FOUND THAT THE EVIDENCE DID NOT SUPPORT THE
ALLEGATIONS OF PRESELECTION OR ALLEGATIONS THAT ALL OTHER EMPLOYEES WERE
NOT PROPERLY CONSIDERED FOR THE POSITION.
THE UNION REQUESTS THAT THE COUNCIL ACCEPT ITS PETITION FOR REVIEW OF
THE ARBITRATOR'S AWARD BASED UPON THE EXCEPTIONS DISCUSSED BELOW. THE
ACTIVITY DID NOT FILE AN OPPOSITION TO THE PETITION.
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."
IN ITS FIRST EXCEPTION TO THE AWARD, THE UNION CONTENDS THAT THE
AWARD "VIOLATES REGULATIONS OF THE FEDERAL ADMINISTRATION EASTERN REGION
MERIT PROMOTION PLAN." IN SUPPORT OF THIS EXCEPTION THE UNION STATES
THAT "THE ARBITRATOR FAILED TO MAKE A FINDING OF FACT THAT THE SELECTED
EMPLOYEE WAS TEMPORARILY ABSENT ON DETAIL, OR LEAVE, OR ATTENDING
TRAINING COURSES SO THAT THE SELECTED EMPLOYEE'S NAME COULD BE ADDED TO
THE MERIT PROMOTION CERTIFICATE" AND "(T)HE VIOLATION OF THE FAA
REGULATION WAS A VIOLATION OF THE NEGOTIATED AGREEMENT."
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 AWARD VIOLATES APPROPRIATE REGULATIONS. IN THIS
CASE, HOWEVER, THE COUNCIL IS OF THE OPINION THAT THE UNION'S PETITION
DOES NOT CONTAIN A SUFFICIENT DESCRIPTION OF FACTS AND CIRCUMSTANCES TO
SUPPORT ITS EXCEPTION. IN THIS REGARD THE COUNCIL NOTES THAT THE
PARTIES SUBMITTED TO THE ARBITRATOR THE QUESTION OF WHETHER THE ACTIVITY
HAD VIOLATED ARTICLE XII, SECTION 1, OF THE AGREEMENT WHICH INCORPORATES
BY REFERENCE "THE FAA MERIT PROMOTION PLAN" AND THAT THE ARBITRATOR HAD
BEFORE HIM, CONSIDERED, AND IN EFFECT APPLIED THE RELEVANT PROVISIONS OF
THAT PLAN IN ARRIVING AT HIS AWARD. THE COUNCIL HAS PREVIOUSLY HELD
THAT UNDER SUCH CIRCUMSTANCES THE INTERPRETATION AND APPLICATION OF AN
AGENCY REGULATION BY THE ARBITRATOR MAY NOT BE CHALLENGED IN AN APPEAL
OF THE AWARD TO THE COUNCIL. FEDERAL AVIATION ADMINISTRATION,
DEPARTMENT OF TRANSPORTATION AND PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION (SCHEDLER, ARBITRATOR), 3 FLRC 451 (FLRC NO. 74A-88 (JULY
24, 1975), REPORT NO. 78). FURTHER, IN ASSERTING "THAT THE ARBITRATOR
FAILED TO MAKE A FINDING OF FACT THAT THE SELECTED EMPLOYEE WAS
TEMPORARILY ABSENT ON DETAIL, ON LEAVE, OR ATTENDING TRAINING COURSES,"
THEREBY CONSTITUTING A VIOLATION OF FAA REGULATIONS, THE UNION IS IN
EFFECT MERELY DISAGREEING WITH THE ARBITRATOR'S REASONING AND CONCLUSION
IN ARRIVING AT THE AWARD. THE COUNCIL HAS CONSISTENTLY HELD THAT IT IS
THE AWARD RATHER THAN THE SPECIFIC REASONING AND CONCLUSIONS EMPLOYED BY
THE ARBITRATOR THAT IS SUBJECT TO CHALLENGE. FEDERAL EMPLOYEES METAL
TRADES COUNCIL AND PORTSMOUTH NAVAL SHIPYARD (HELLER, ARBITRATOR), 4
FLRC 444, 447 (FLRC NO. 76A-36 (AUG. 31, 1976), REPORT NO. 111); THE
NATIONAL LABOR RELATIONS BOARD UNION (NLRBU) AND THE NATIONAL LABOR
RELATIONS BOARD (NLRB) (SINICROPI, ARBITRATOR), 5 FLRC 764, 769 (FLRC
NO. 77A-23 (AUG. 25, 1977), REPORT NO. 135. ACCORDINGLY, THE UNION'S
FIRST EXCEPTION DOES NOT PROVIDE A BASIS FOR ACCEPTANCE OF ITS PETITION
UNDER SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE.
IN ITS SECOND EXCEPTION, THE UNION CONTENDS THAT THE ARBITRATOR'S
AWARD VIOLATES PROVISIONS OF THE FEDERAL PERSONNEL MANUAL (FPM). IN
SUPPORT OF THIS EXCEPTION, THE UNION ASSERTS THAT THE ARBITRATOR
MISINTERPRETED THE WORD "DETAIL" AS DEFINED IN FPM CHAPTER 300,
SUBCHAPTER 8-1. /2/
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 AWARD VIOLATES THE FEDERAL PERSONNEL MANUAL.
FEDERAL AVIATION ADMINISTRATION, STANDIFORD AIR TRAFFIC CONTROL TOWER,
LOUISVILLE, KENTUCKY AND PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION (WITNEY, ARBITRATOR), 5 FLRC 455 (FLRC NO. 76A-6 (JUNE 7,
1977), REPORT NO. 128). IN THIS CASE, HOWEVER, THE UNION'S PETITION
DOES NOT ESTABLISH A NEXUS BETWEEN THE FPM PROVISION DEFINING A "DETAIL"
AND THE ARBITRATOR'S AWARD DENYING THE GRIEVANCE, HOLDING THAT, BASED
UPON THE EVIDENCE BEFORE HIM, THE ACTIVITY DID NOT VIOLATE ARTICLE XII
OF THE PARTIES' AGREEMENT IN THE PROMOTION ACTION AT ISSUE. IN EFFECT,
THE UNION APPEARS TO BE MERELY DISAGREEING WITH THE ARBITRATOR'S
REASONING IN ARRIVING AT HIS AWARD. AS PREVIOUSLY INDICATED, THIS DOES
NOT PROVIDE A BASIS FOR COUNCIL ACCEPTANCE OF A PETITION FOR REVIEW.
PORTSMOUTH NAVAL SHIPYARD, SUPRA. THEREFORE, THE UNION'S PETITION FAILS
TO PRESENT THE NECESSARY FACTS AND CIRCUMSTANCES IN SUPPORT OF THIS
EXCEPTION THAT THE AWARD VIOLATES THE FPM AND NO BASIS IS THUS
ESTABLISHED 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.
SINCERELY,
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
CC: A. RUDYK
FAA
/1/ ACCORDING TO THE ARBITRATOR, THE AGREEMENT PROVIDES, IN PART:
ARTICLE XII - PROMOTIONS
SECTION 1
THE EMPLOYER AND THE UNION AGREE THAT PROMOTIONS WILL BE MADE IN FULL
CONFORMANCE WITH THE
FAA MERIT PROMOTION PLAN.
SECTION 5
THE EMPLOYER AGREES THAT SELECTION FOR PROMOTION TO A POSITION WITHIN
THE UNIT SHALL BE
AMONG THE BEST QUALIFIED PERSONS AVAILABLE, WITHOUT DISCRIMINATION OR
PERSONAL BIAS.
/2/ FPM CHAPTER 300, SUBCHAPTER 8-1 PROVIDES:
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
DETAIL. TECHNICALLY, A POSITION IS NOT FILLED BY A DETAIL, AS THE
EMPLOYEE CONTINUES TO BE
THE INCUMBENT OF THE POSITION FROM WHICH DETAILED.
6 FLRC 964; FLRC NO. 78A-112; DECEMBER 19, 1978.
(SYNOPSIS) FLRC NO. 78A-112
DEPARTMENT OF THE NAVY, NAVAL ORDNANCE STATION, LOUISVILLE, KENTUCKY,
ASSISTANT SECRETARY CASE NO. 41-5681(CA). THE ASSISTANT SECRETARY
DENIED THE REQUEST FOR REVIEW FILED BY THE UNION (LOCAL 830,
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS), SEEKING
REVERSAL OF THE REGIONAL ADMINISTRATOR'S DISMISSAL OF THE UNION'S
SECTION 19(A)(1) AND (6) COMPLAINT WHICH ALLEGED THAT THE ACTIVITY HAD
REFUSED TO IMPLEMENT AN ARBITRATION AWARD. THE UNION APPEALED TO THE
COUNCIL, CONTENDING THAT THE ASSISTANT SECRETARY'S DECISION WAS
ARBITRARY AND CAPRICIOUS AND RAISED A MAJOR POLICY ISSUE.
COUNCIL ACTION (DECEMBER 19, 1978). THE COUNCIL HELD THAT THE
UNION'S PETITION FOR REVIEW DID NOT MEET THE REQUIREMENTS OF SECTION
2411.12 OF THE COUNCIL'S RULES OF PROCEDURE; THAT IS, THE DECISION OF
THE ASSISTANT SECRETARY DID NOT APPEAR ARBITRARY AND CAPRICIOUS OR
PRESENT A MAJOR POLICY ISSUE. ACCORDINGLY, THE COUNCIL DENIED THE
UNION'S PETITION FOR REVIEW.
DECEMBER 19, 1978
MR. JAMES W. SEIDL
BUSINESS REPRESENTATIVE
DISTRICT LODGE 21
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, AFL-CIO
IROQUOIS OFFICE BUILDING, ROOM 138
5330 SOUTH THIRD STREET
LOUISVILLE, KENTUCKY 40214
RE: DEPARTMENT OF THE NAVY, NAVAL ORDNANCE
STATION, LOUISVILLE, KENTUCKY, ASSISTANT
SECRETARY CASE NO. 41-5681(CA), FLRC
NO. 78A-112
DEAR MR. SEIDL:
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 MACHINISTS AND
AEROSPACE WORKERS, LOCAL LODGE 830 (THE UNION) FILED AN UNFAIR LABOR
PRACTICE COMPLAINT AGAINST THE DEPARTMENT OF THE NAVY, NAVAL ORDNANCE
STATION, LOUISVILLE, KENTUCKY (THE ACTIVITY). THE COMPLAINT ALLEGED
THAT THE ACTIVITY VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER. AT
ISSUE WAS AN ALLEGED REFUSAL TO IMPLEMENT AN ARBITRATION AWARD WHEREIN
THE ARBITRATOR HAD UPHELD THE UNION'S GRIEVANCE THAT THE ACTIVITY HAD
VIOLATED THE PARTIES' NEGOTIATED AGREEMENT BY ESTABLISHING A WG-5
REGISTER FOR A PARTICULAR POSITION WHILE SEVEN PREVIOUSLY QUALIFIED AND
EVALUATED EMPLOYEES REMAINED ON AN EXISTING WG-6 REGISTER.
THE REGIONAL ADMINISTRATOR (RA), FOLLOWING AN INVESTIGATION OF SUCH
ALLEGATION, FOUND THAT A REASONABLE BASIS FOR THE COMPLAINT HAD NOT BEEN
ESTABLISHED. THUS, HE FOUND THAT THE UNION'S REQUEST FOR A MEETING WITH
THE ACTIVITY TO IMPLEMENT THE ARBITRATOR'S AWARD WAS HELD A FEW DAYS
LATER; THAT THE PARTIES WERE IN DISAGREEMENT AS TO THE INTERPRETATION
OF THE AWARD; THAT THE ACTIVITY PROPOSED A JOINT SUBMISSION TO THE
ARBITRATOR FOR CLARIFICATION AND MADE THE SAME REQUEST TO THE UNION BY
LETTER THE FOLLOWING DAY; THAT THE UNION FILED AN UNFAIR LABOR PRACTICE
CHARGE AGAINST THE ACTIVITY AND THEN REJECTED THE ACTIVITY'S REQUEST FOR
JOINT SUBMISSION TO THE ARBITRATOR AS "UNTIMELY" IN LIGHT OF THE PENDING
UNFAIR LABOR PRACTICE CHARGE; THAT THE ACTIVITY THEREAFTER SUBMITTED A
UNILATERAL REQUEST FOR CLARIFICATION TO THE ARBITRATOR, WHO ADVISED THE
ACTIVITY THAT ABSENT BOTH PARTIES' CONSENT, NO CLARIFICATION OF THE
AWARD COULD BE RENDERED; AND THAT THE UNION THEN FILED THE INSTANT
COMPLAINT. ON THE BASIS OF THE FOREGOING, THE RA CONCLUDED:
(THE ACTIVITY'S) CONDUCT WITH RESPECT TO THE AWARD DOES NOT
CONSTITUTE A REFUSAL TO
IMPLEMENT THAT AWARD. IN THIS REGARD I NOTE THAT FOLLOWING THE
ISSUANCE OF THE AWARD
. . . (THE ACTIVITY) PROMPTLY ACCEDED TO (THE UNION'S) REQUEST FOR A
MEETING TO IMPLEMENT THE
AWARD. THERE IS NO EVIDENCE THAT (THE UNION) REQUESTED OR (THE
ACTIVITY) REFUSED TO MEET ON
ANY PRIOR DATE TO IMPLEMENT THE AWARD. MOREOVER, NEITHER THE AWARD
NOR THE COLLECTIVE
BARGAINING AGREEMENT SPECIFIES A TIME LIMIT FOR IMPLEMENTATION OF AN
ARBITRATION
AWARD. INVESTIGATION DISCLOSES THAT DURING THE MEETING (TO DISCUSS
THE AWARD AND ITS
IMPLEMENTATION) THE PARTIES WERE UNABLE TO AGREE ON A PLAN TO
IMPLEMENT THE AWARD BECAUSE OF
DIFFERING INTERPRETATIONS OVER THE INTENT OF THE AWARD.
DURING THE MEETING AND IN A SUBSEQUENT LETTER (THE ACTIVITY) SOUGHT
(THE UNION'S)
COOPERATION IN EFFORTS TO CLARIFY THE AWARD. (THE UNION'S) REFUSAL
TO JOIN (THE ACTIVITY) IN
THE REQUEST TO THE ARBITRATOR FOR CLARIFICATION OF THE AWARD RESULTED
IN THE ARBITRATOR'S
REFUSAL TO CLARIFY. UNDER THE CIRCUMSTANCES, I CONCLUDE THAT A
REASONABLE BASIS FOR COMPLAINT
HAS NOT BEEN ESTABLISHED. I AM, THEREFORE, DISMISSING THE COMPLAINT
IN ITS ENTIRETY.
THE ASSISTANT SECRETARY, IN AGREEMENT WITH THE RA, AND BASED ON HIS
REASONING, FOUND THAT A REASONABLE BASIS FOR THE COMPLAINT HAD NOT BEEN
ESTABLISHED, AND THAT FURTHER PROCEEDINGS WERE UNWARRANTED.
ACCORDINGLY, HE DENIED THE UNION'S REQUEST FOR REVIEW SEEKING REVERSAL
OF THE RA'S DISMISSAL OF THE INSTANT COMPLAINT.
IN YOUR PETITION FOR REVIEW ON BEHALF OF THE UNION, YOU ALLEGE THAT
THE ASSISTANT SECRETARY'S DECISION IS "BOTH ARBITRARY AND CAPRICIOUS AND
REPRESENTS MAJOR POLICY." WITH REGARD TO THE ARBITRARY AND CAPRICIOUS
ALLEGATION, YOU ASSERT THAT "THE (RA'S) DECISION TO DISMISS (THE
COMPLAINT) WAS BASED ON ERRONEOUS CONCLUSIONS OF FACT," IN THAT THE
UNION "RAISED SERIOUS QUESTIONS CONCERNING THE FACTS ESTABLISHED BY THE
AREA ADMINISTRATOR DURING THE INDEPENDENT INVESTIGATION BY THE
COMPLIANCE OFFICER," AND "THESE QUESTIONS OF FACT WERE NEVER RESOLVED BY
THE (RA) NOR THE ASSISTANT SECRETARY'S OFFICE." YOU FURTHER ALLEGE THAT
THE ASSISTANT SECRETARY'S DETERMINATION HEREIN THAT NEITHER THE
ARBITRATOR'S AWARD NOR THE COLLECTIVE BARGAINING AGREEMENT SPECIFIED A
TIME LIMIT FOR IMPLEMENTING THE AWARD RAISES A MAJOR POLICY ISSUE IN
THAT SUCH DETERMINATION IS "INCONSISTENT AND NOT IN LINE WITH THE COMMON
LAW ESTABLISHED BY THE COUNCIL." IN THIS REGARD YOU ASSERT THAT THE
COUNCIL, IN DEPARTMENT OF THE ARMY, ABERDEEN PROVING GROUND, A/SLMR NO.
412, 3 FLRC 188 (FLRC NO. 74A-46 (MAR. 20, 1975), REPORT NO. 67), AND
DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, A/SLMR
NO. 517, 3 FLRC 613 (FLRC NO. 75A-66 (SEPT. 23, 1975), REPORT NO. 84),
"HELD IT TO BE AN UNFAIR LABOR PRACTICE . . . (IF) THE PARTY FAILED TO
FILE AN APPEAL TO THE COUNCIL OR TO REQUEST A STAY PENDING AN APPEAL."
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, THE ASSISTANT SECRETARY'S DECISION
DOES NOT APPEAR ARBITRARY AND CAPRICIOUS OR PRESENT A MAJOR POLICY
ISSUE.
WITH RESPECT TO YOUR ALLEGATION THAT THE ASSISTANT SECRETARY'S
DECISION IS ARBITRARY AND CAPRICIOUS, IT DOES NOT APPEAR THAT THE
ASSISTANT SECRETARY ACTED WITHOUT REASONABLE JUSTIFICATION IN REACHING
HIS DECISION IN THE CIRCUMSTANCES OF THIS CASE. RATHER, YOUR ASSERTION
THAT THE ASSISTANT SECRETARY'S DISMISSAL OF THE COMPLAINT WAS BASED ON
ERRONEOUS CONCLUSIONS OF FACT WHICH WERE NEVER RESOLVED BY THE RA OR THE
ASSISTANT SECRETARY IS, IN ESSENCE, NOTHING MORE THAN DISAGREEMENT WITH
THE ASSISTANT SECRETARY'S DETERMINATION, PURSUANT TO HIS REGULATIONS,
THAT NO REASONABLE BASIS FOR THE COMPLAINT HAD BEEN ESTABLISHED, AND
THEREFORE PROVIDES NO BASIS FOR COUNCIL REVIEW. SIMILARLY, AS TO YOUR
FURTHER ALLEGATION THAT THE ASSISTANT SECRETARY'S DECISION HEREIN WAS
INCONSISTENT WITH THE COUNCIL'S PRIOR DECISIONS IN ABERDEEN AND FEDERAL
AVIATION ADMINISTRATION (SUPRA P. 2), IN THE COUNCIL'S OPINION NO MAJOR
POLICY ISSUE IS PRESENTED WARRANTING REVIEW. YOUR CONTENTIONS IN THIS
REGARD ARE, IN ESSENCE, A DISAGREEMENT WITH THE ASSISTANT SECRETARY'S
FINDING THAT THERE WAS NOT A REFUSAL TO IMPLEMENT AN AWARD BUT, RATHER,
DIFFERING INTERPRETATIONS OVER THE INTENT OF THE AWARD. /1/
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS OR PRESENT A MAJOR POLICY ISSUE, YOUR APPEAL FAILS TO
MEET THE REQUIREMENTS FOR REVIEW AS SET FORTH IN SECTION 2411.12 OF THE
COUNCIL'S RULES. ACCORDINGLY, YOUR PETITION FOR REVIEW IS HEREBY
DENIED.
BY THE COUNCIL.
SINCERELY,
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
CC: A/SLMR
LABOR
M. ARKIN
NAVY
/1/ IN THIS CONNECTION, THE COUNCIL NOTES THAT AN ATTEMPT TO OBTAIN
CLARIFICATION OF AN ARBITRATOR'S AWARD THROUGH JOINT SUBMISSION BY THE
PARTIES IS CONSISTENT WITH THE COUNCIL'S DISPOSITION OF CASES WHERE THE
ARBITRATOR'S AWARD IN QUESTION WAS AMBIGUOUS. IN SUCH CASES, THE
COUNCIL HAS DIRECTED THE PARTIES TO JOINTLY SUBMIT SUCH AWARD TO THE
ARBITRATOR FOR CLARIFICATION. SEE, E.G., MARE ISLAND NAVAL SHIPYARD AND
MARE ISLAND NAVY YARD METAL TRADES COUNCIL, AFL-CIO (DURHAM,
ARBITRATOR), 4 FLRC 143 (74A-64 (MAR. 3, 1976), REPORT NO. 100);
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2532 AND SMALL
BUSINESS ADMINISTRATION (DORSEY, ARBITRATOR), 2 FLRC CHICAGO DISTRICT
OFFICE AND NATIONAL TREASURY EMPLOYEES UNION CHAPTER 10 (MUELLER,
ARBITRATOR), 5 FLRC 485 (FLRC NO. 76A-150 (JUNE 7, 1977), REPORT NO.
128).
6 FLRC 961; FLRC NO. 78A-109; DECEMBER 19, 1978.
(SYNOPSIS) FLRC NO. 78A-109
DIVISION OF MILITARY AND NAVAL AFFAIRS, STATE OF NEW YORK, NEW YORK
STATE NATIONAL GUARD, ASSISTANT SECRETARY CASE NO. 30-7896(GA). THE
ASSISTANT SECRETARY, UPON AN APPLICATION FOR DECISION ON GRIEVABILITY
FILED BY THE UNION (ASSOCIATION OF CIVILIAN TECHNICIANS, INC., NEW YORK
STATE COUNCIL), CONCLUDED, CONTRARY TO THE ACTING REGIONAL ADMINISTRATOR
(ARA), THAT AS TO ONE OF FOUR EMPLOYEE GRIEVANTS, THE GRIEVANCE AT ISSUE
(CONCERNING THE FILLING OF A VACANCY) WAS GRIEVABLE UNDER THE PARTIES'
AGREEMENT. ACCORDINGLY, THE ASSISTANT SECRETARY GRANTED THE UNION'S
REQUEST FOR REVIEW SEEKING REVERSAL OF THE ARA'S REPORT AND FINDINGS ON
GRIEVABILITY AS TO THAT EMPLOYEE. THE ACTIVITY APPEALED TO THE COUNCIL
CONTENDING THAT THE ASSISTANT SECRETARY'S DECISION WAS ARBITRARY AND
CAPRICIOUS. HOWEVER, THE ACTIVITY THEREAFTER INFORMED THE COUNCIL THAT,
ALTHOUGH IT MAINTAINED THAT THE EMPLOYEE'S GRIEVANCE "SHOULD NOT BE
VIABLE," HE WOULD BE PROVIDED WITH THE SPECIFIC REMEDY HE SOUGHT.
COUNCIL ACTION (DECEMBER 19, 1978). THE COUNCIL HELD THAT BY
PROVIDING THE EMPLOYEE WITH THE SPECIFIC REMEDY HE SOUGHT, THE ACTIVITY
HAD IN EFFECT RENDERED MOOT THE DISPUTE INVOLVED IN THE APPEAL.
ACCORDINGLY, THE COUNCIL DENIED THE ACTIVITY'S PETITION FOR REVIEW.
DECEMBER 19, 1978
COLONEL CLARENCE C. WALLACE
TECHNICIAN PERSONNEL OFFICER
STATE OF NEW YORK
DIVISION OF MILITARY AND
NAVAL AFFAIRS
PUBLIC SECURITY BUILDING, STATE CAMPUS
ALBANY, NEW YORK 12226
RE: DIVISION OF MILITARY AND NAVAL AFFAIRS, STATE
OF NEW YORK, NEW YORK STATE NATIONAL GUARD,
ASSISTANT SECRETARY CASE NO. 30-7896(GA),
FLRC NO. 78A-109
DEAR COLONEL WALLACE:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION, AND YOUR SUBSEQUENT LETTER TO THE
COUNCIL, IN THE ABOVE-ENTITLED CASE.
IN THIS CASE, ACCORDING TO THE ACTING REGIONAL ADMINISTRATOR'S
(ARA'S) REPORT AND FINDINGS ON GRIEVABILITY, FOUR EMPLOYEES IN A UNIT OF
TECHNICIANS EXCLUSIVELY REPRESENTED BY THE ASSOCIATION OF CIVILIAN
TECHNICIANS, INC., NEW YORK STATE COUNCIL (THE UNION) FILED GRIEVANCES
CONCERNING THE FILLING OF AN ANNOUNCED VACANCY. WHEN THE DIVISION OF
MILITARY AND NAVAL AFFAIRS, STATE OF NEW YORK, NEW YORK STATE NATIONAL
GUARD (THE ACTIVITY) REJECTED THE GRIEVANCES AS NONGRIEVABLE, THE
EMPLOYEES FILED AN APPLICATION FOR DECISION ON GRIEVABILITY TO DETERMINE
WHETHER THEIR GRIEVANCES WERE ON A MATTER SUBJECT TO THE PARTIES
NEGOTIATED GRIEVANCE PROCEDURE. THE ARA CONCLUDED THAT THREE OF THE
GRIEVANCES WERE COVERED UNDER THE NEGOTIATED GRIEVANCE PROCEDURE BUT
THAT THE FOURTH WAS NONGRIEVABLE. THE ASSISTANT SECRETARY THEREAFTER
GRANTED THE UNION'S REQUEST FOR REVIEW SEEKING REVERSAL OF THE ARA'S
REPORT AND FINDINGS ON GRIEVABILITY AS TO THE FOURTH EMPLOYEE,
CONCLUDING, CONTRARY TO THE ARA, THAT THE GRIEVANCE, AS TO THAT
EMPLOYEE, "INVOLVES A MATTER THAT IS GRIEVABLE UNDER THE TERMS OF THE
PARTIES' NEGOTIATED GRIEVANCE PROCEDURE" IN THE PARTICULAR CIRCUMSTANCES
OF THE CASE.
IN YOUR PETITION FOR REVIEW ON BEHALF OF THE ACTIVITY, YOU CONTEND
THAT THE ASSISTANT SECRETARY'S REVERSAL OF THE ARA'S REPORT AND FINDINGS
ON GRIEVABILITY ON THE GRIEVANCE OF THE FOURTH EMPLOYEE WAS ARBITRARY
AND CAPRICIOUS. THEREAFTER, YOU INFORMED THE COUNCIL AS FOLLOWS:
THE REMEDY SOUGHT BY (THE FOURTH EMPLOYEE) IS BEING MADE AVAILABLE BY
THE ALL ENCOMPASSING
RESOLUTION RENDERED TO OTHER GRIEVANTS IN THE INSTANT CASE. UPON
EXECUTION, THIS RESOLUTION
WILL PROVIDE (THE FOURTH EMPLOYEE) WITH THE SPECIFIC REMEDY HE SOUGHT
AND SHOULD CONCLUDE THE
MATTER.
ALTHOUGH YOUR LETTER FURTHER STATES THAT THE ACTIVITY "STILL
MAINTAINS THAT (THE FOURTH EMPLOYEE'S) GRIEVANCE SHOULD NOT BE VIABLE,"
THE COUNCIL IS OF THE OPINION THAT, BY PROVIDING THAT EMPLOYEE WITH "THE
SPECIFIC REMEDY BE SOUGHT," THE ACTIVITY HAS IN EFFECT RENDERED MOOT THE
DISPUTE INVOLVED IN YOUR APPEAL FROM THE ASSISTANT SECRETARY'S DECISION.
CF. NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1641 AND VETERANS
ADMINISTRATION HOSPITAL, SPOKANE, WASHINGTON, 5 FLRC 878 (FLRC NO.
77A-74 (AUG. 31, 1977),REPORT NO. 137).
ACCORDINGLY, FOR THE FOREGOING REASON, AND WITHOUT PASSING UPON THE
DECISION OF THE ASSISTANT SECRETARY, YOUR PETITION FOR REVIEW IS HEREBY
DENIED.
BY THE COUNCIL.
SINCERELY,
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
CC: A/SLMR
LABOR
J. F. BURT
ACT
D. BRENAMAN
NGB
6 FLRC 955; FLRC NO. 78A-98; DECEMBER 19, 1978.
(SYNOPSIS) FLRC NO. 78A-98
GENERAL SERVICES ADMINISTRATION, NATIONAL ARCHIVES AND RECORDS
SERVICE, A/SLMR NO. 1075. THE ASSISTANT SECRETARY, UPON A CU PETITION
FILED BY THE ACTIVITY SEEKING TO EXCLUDE THE EMPLOYEES OF THE NATIONAL
ARCHIVES TRUST FUND BOARD (THE BOARD) FROM A UNIT OF ALL ACTIVITY
EMPLOYEES REPRESENTED BY LOCAL 2578, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, FOUND, IN PERTINENT PART, THAT THE BOARD WAS "AN
AGENCY" WITHIN THE MEANING OF SECTION 2(A) OF THE ORDER; THAT THE
EMPLOYEES OF THE BOARD WERE "EMPLOYEES" WITHIN THE MEANING OF SECTION
2(B) OF THE ORDER; AND THAT THE UNIT INVOLVED SHOULD BE CLARIFIED TO
REFLECT THAT THE EMPLOYEES OF THE BOARD HAD BEEN AND REMAINED WITHIN
SUCH UNIT. THE AGENCY APPEALED TO THE COUNCIL, CONTENDING THAT THE
ASSISTANT SECRETARY'S DECISION WAS ARBITRARY AND CAPRICIOUS AND
PRESENTED MAJOR POLICY ISSUES. THE AGENCY ALSO REQUESTED A STAY OF THE
ASSISTANT SECRETARY'S DECISION.
COUNCIL ACTION (DECEMBER 19, 1978). THE COUNCIL HELD THAT THE
AGENCY'S PETITION FOR REVIEW DID NOT MEET THE REQUIREMENTS OF SECTION
2411.12 OF THE COUNCIL'S RULES OF PROCEDURE; THAT IS, THE DECISION OF
THE ASSISTANT SECRETARY DID NOT APPEAR ARBITRARY AND CAPRICIOUS OR
PRESENT ANY MAJOR POLICY ISSUES. ACCORDINGLY, THE COUNCIL DENIED THE
AGENCY'S PETITION FOR REVIEW. THE COUNCIL ALSO DENIED THE AGENCY'S
REQUEST FOR A STAY.
DECEMBER 19, 1978
MS. JANICE K. MENDENHALL
DIRECTOR OF ADMINISTRATION
GENERAL SERVICES ADMINISTRATION
WASHINGTON, D.C. 20405
RE: GENERAL SERVICES ADMINISTRATION
NATIONAL ARCHIVES AND RECORDS SERVICE,
A/SLMR NO. 1075, FLRC NO. 78A-98
DEAR MS. MENDENHALL:
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 ASSISTANT SECRETARY'S DECISION, THE GENERAL SERVICES
ADMINISTRATION, NATIONAL ARCHIVES AND RECORDS SERVICE (THE ACTIVITY)
FILED A UNIT-CLARIFICATION (CU) PETITION SEEKING TO EXCLUDE EMPLOYEES OF
THE NATIONAL ARCHIVES TRUST FUND BOARD (THE BOARD) FROM A UNIT OF ALL
ACTIVITY EMPLOYEES REPRESENTED BY THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2578, AFL-CIO (THE UNION). IN ITS PETITION THE
ACTIVITY ASSERTED THAT THE ASSISTANT SECRETARY HAD NO JURISDICTION OVER
THE BOARD BECAUSE IT WAS NOT AN "AGENCY" WITHIN THE MEANING OF SECTION
2(A) OF THE ORDER /1/ AND BECAUSE EMPLOYEES OF THE BOARD WERE NOT
COVERED BY THE DEFINITION OF "EMPLOYEE" SET FORTH IN SECTION 2(B) OF THE
ORDER. /2/ HOWEVER, THE ACTIVITY AND THE UNION STIPULATED THAT IF THE
ASSISTANT SECRETARY DID ASSERT JURISDICTION OVER THE BOARD AND ITS
EMPLOYEES THOSE EMPLOYEES SHOULD BE INCLUDED IN THE UNIT FOUND
APPROPRIATE IN THIS CASE, SINCE THEY SHARED A COMMUNITY OF INTEREST WITH
THE ACTIVITY'S EMPLOYEES AND THEIR INCLUSION WOULD PROMOTE EFFECTIVE
DEALINGS AND THE EFFICIENCY OF AGENCY OPERATIONS.
AFTER CONSIDERING AT LENGTH THE HISTORY, ORGANIZATION AND FUNCTION OF
THE BOARD, AS WELL AS THE WORKING CONDITIONS OF BOARD EMPLOYEES, THE
ASSISTANT SECRETARY CONCLUDED AS FOLLOWS:
UNDER ALL THE FOREGOING CIRCUMSTANCES, I CONCLUDE THAT THE NATIONAL
ARCHIVES TRUST FUND
BOARD IS AN INDEPENDENT ESTABLISHMENT WITHIN THE MEANING OF SECTION
104 OF TITLE 5 OF THE
UNITED STATES CODE. ACCORDINGLY, I FIND IT TO BE AN "AGENCY" WITHIN
THE MEANING OF SECTION
2(A) OF THE ORDER WHOSE MISSION AND BUSINESS ACTIVITIES ARE
FUNCTIONALLY RELATED TO THE
(ACTIVITY). IN THIS REGARD, IT IS NOTED PARTICULARLY THAT THE
STATUTORY CHAIRMAN OF THE BOARD
IS THE ARCHIVIST OF THE UNITED STATES, AN OFFICIAL APPOINTED BY THE
ADMINISTRATOR OF THE GSA,
AND, FURTHER, THAT THE SECRETARY OF THE BOARD, WHO IS ITS CHIEF
ADMINISTRATIVE OFFICER, IS THE
EXECUTIVE DIRECTOR OF THE (ACTIVITY). MOREOVER, IN MY JUDGMENT, A
FINDING THAT THE BOARD IS
AN "AGENCY" WITHIN THE MEANING OF SECTION 2(A) OF THE ORDER FOR THE
PURPOSE OF COLLECTIVE
BARGAINING IN NO WAY CONFLICTS WITH THE CONGRESSIONAL CONCERN THAT
THE BOARD ACCEPT AND
ADMINISTER GIFTS, OR BEQUESTS OF MONEY, SECURITIES OR OTHER PERSONAL
PROPERTY FOR THE BENEFIT
OF THE (ACTIVITY), OR INTERFERES WITH THE BOARD'S ABILITY TO COLLECT
AND ADMINISTER FUNDS FROM
THE NATIONAL ARCHIVES ESTABLISHMENT OR VARIOUS PRESIDENTIAL LIBRARIES
AS PART OF THE NATIONAL
ARCHIVES TRUST FUND.
I FIND ALSO THAT BOARD EMPLOYEES ARE "EMPLOYEES" WITHIN THE MEANING
OF SECTION 2(B) OF THE
ORDER AS THEY ARE EMPLOYEES OF AN "AGENCY" AS DEFINED IN THE ORDER.
IN THIS REGARD, IT IS
NOTED THAT THE DETERMINATION OF WHETHER EMPLOYEES, SUCH AS THOSE
INVOLVED HEREIN, ARE SUBJECT
TO THE JURISDICTION OF THE ORDER, IS DEPENDENT ON WHETHER THEY ARE
EMPLOYEES OF AN "AGENCY",
RATHER THAN ON THEIR METHOD OF APPOINTMENT, PAY, OR COVERAGE UNDER
CIVIL SERVICE LAWS AND
REGULATIONS. /2A/
I FIND FURTHER THAT THE UNIT HEREIN SHOULD BE CLARIFIED TO REFLECT
THAT THE EMPLOYEES OF
THE BOARD HAVE BEEN AND REMAIN WITHIN THE EXCLUSIVELY RECOGNIZED
UNIT.
IN YOUR PETITION FOR REVIEW ON BEHALF OF THE AGENCY, YOU ALLEGE THAT
THE ASSISTANT SECRETARY'S DECISION IS ARBITRARY BECAUSE, IN SUMMARY,
THERE IS NO LEGAL RATIONALE OR CASE PRECEDENT FOR THE DECISION AND THE
ASSISTANT SECRETARY HAS SUBSTITUTED HIS JUDGMENT FOR THAT OF CONGRESS--
WHOSE INTENT IT WAS TO ESTABLISH THE BOARD AS AN ENTITY OUTSIDE THE
CONTROL OF THE EXECUTIVE BRANCH. YOU ADDITIONALLY ALLEGE THAT THE
DECISION PRESENTS THE FOLLOWING MAJOR POLICY ISSUES:
1. DOES THE ASSISTANT SECRETARY POSSESS THE AUTHORITY UNDER
EXECUTIVE ORDER 11491, AS
AMENDED, TO SUBJECT TO HIS JURISDICTION THE MANAGEMENT OFFICIALS OF A
FEDERAL ENTITY THAT WAS
NOT ESTABLISHED BY CONGRESS IN THE EXECUTIVE BRANCH OF THE FEDERAL
GOVERNMENT-- AS INDICATED
BY THE CONTROL OVER SUCH ENTITY THAT THE CONGRESS EVIDENTLY SOUGHT TO
PRESERVE FOR ITSELF, AND WITHHOLD
FROM OFFICIALS OF BOTH (THE ACTIVITY) AND ITS PARENT AGENCY, GSA(?)
2. (IS THERE) ANY JUSTIFICATION FOR THE ASSISTANT SECRETARY TO
EXTEND THE COVERAGE OF THE
EXECUTIVE ORDER TO THE EMPLOYEES OF SUCH AN ENTITY, WHEN THE VERY
AUTHORITY UNDER WHICH THE
PRESIDENT ISSUED SUCH ORDER DERIVED EXPRESSLY FROM THE CIVIL SERVICE
LAWS IN TITLE 5 OF THE
U.S. CODE (SEE PREAMBLE OF THE ORDER), AND THE EMPLOYEES IN QUESTION
ARE APPOINTED WITHOUT
REGARD TO ALL CIVIL SERVICE LAWS (44 U.S.C. SECTION 2301)(?)
3. (IS IT) COMPATIBLE WITH THE USUAL POWERS OF A TRUSTEE FOR THESE
BOARD MEMBERS TO BE
DIRECTED BY THE ASSISTANT SECRETARY THAT HENCEFORTH THE PERSONNEL
POLICIES AND PRACTICES AND
MATTERS AFFECTING WORKING CONDITIONS OF BOARD EMPLOYEES-- FOR WHOM
THE BOARD IS THE EXCLUSIVE
EMPLOYER-- MUST BE FIXED BY THE PROCESS OF COLLECTIVE BARGAINING,
REGARDLESS OF ANY
STIPULATIONS APPERTAINING THERETO THAT MAY BE INCORPORATED IN THE
TRUST INSTRUMENTS TO WHICH
THE TRUSTEES ARE OBLIGATED TO ADHERE?
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 OR RAISE ANY MAJOR POLICY ISSUES.
AS TO YOUR ALLEGATION THAT THE ASSISTANT SECRETARY'S DECISION IS
ARBITRARY, IT DOES NOT APPEAR IN THE CIRCUMSTANCES OF THIS CASE THAT THE
ASSISTANT SECRETARY ACTED WITHOUT REASONABLE JUSTIFICATION IN REACHING
HIS DECISION THAT THE EXISTING EXCLUSIVELY RECOGNIZED UNIT HEREIN SHOULD
BE CLARIFIED TO REFLECT THE INCLUSION OF BOARD EMPLOYEES. RATHER, YOUR
CONTENTIONS THAT HE ACTED WITHOUT A REASONABLE BASIS AND CONTRARY TO THE
INTENT OF CONGRESS CONSTITUTE, IN ESSENCE, MERE DISAGREEMENT WITH THE
ASSISTANT SECRETARY'S FINDINGS THAT THE BOARD AND ITS EMPLOYEES ARE
PROPERLY SUBJECT TO THE PROVISIONS OF THE ORDER AND THAT EMPLOYEES OF
THE BOARD "HAVE BEEN AND REMAIN WITHIN THE EXCLUSIVELY RECOGNIZED UNIT."
FURTHER, IT DOES NOT APPEAR THAT ANY MAJOR POLICY ISSUES IS PRESENTED
BY THE ASSISTANT SECRETARY'S DECISION. THUS, WITH PARTICULAR REGARD TO
YOUR FIRST ALLEGED MAJOR POLICY ISSUE CONCERNING CONGRESSIONAL CONTROL
OF THE BOARD, THE COUNCIL NOTES THAT THE CONGRESS RECENTLY ENACTED AND
THE PRESIDENT SIGNED INTO LAW A PROVISION SETTING THE MEMBERSHIP OF THE
BOARD AS FOLLOWS: /3/
(T)HE FIRST SENTENCE OF SECTION 2301 OF TITLE 44, UNITED STATES CODE,
IS AMENDED TO READ AS
FOLLOWS: "THE NATIONAL ARCHIVES TRUST FUND BOARD SHALL CONSIST OF
THE ARCHIVIST OF THE UNITED
STATES, AS CHAIRMAN, AND THE SECRETARY OF THE TREASURY AND THE
CHAIRMAN OF THE NATIONAL
ENDOWMENT FOR THE HUMANITIES.".
WHILE RETAINING THE ARCHIVIST OF THE UNITED STATES (THE HEAD OF THE
ACTIVITY) AS CHAIRMAN, THIS AMENDMENT SERVES TO MODIFY THE REMAINING
MEMBERSHIP OF THE BOARD BY REPLACING THE CHAIRMEN OF THE HOUSE COMMITTEE
ON GOVERNMENT OPERATIONS AND THE FORMER SENATE COMMITTEE ON POST OFFICE
AND CIVIL SERVICE WITH OFFICIALS APPOINTED BY THE PRESIDENT. IN THIS
RESPECT, THE COUNCIL NOTES THAT THE ACCOMPANYING REPORT OF THE HOUSE
COMMITTEE ON GOVERNMENT OPERATIONS STATES THAT "(T)HE PURPOSE OF THIS
BILL IS TO MODIFY THE MEMBERSHIP OF THE NATIONAL ARCHIVES TRUST FUND
BOARD, REPLACING CONGRESSIONAL MEMBERS WITH EXECUTIVE BRANCH OFFICIALS,"
AND THAT "(T)HE COMMITTEE CONCLUDES THAT THE APPROPRIATIONS OF
CONGRESSIONAL PARTICIPATION ON SUCH A BOARD IS HIGHLY QUESTIONABLE UNDER
THE CONSTITUTIONAL DOCTRINE OF SEPARATION OF POWERS." /4/ THE
ACCOMPANYING REPORT OF THE SENATE COMMITTEE ON GOVERNMENTAL AFFAIRS
STATES THAT "(T)HESE REPLACEMENTS ARE DESIGNED TO REMOVE ANY POSSIBLE
CONFLICT OF INTEREST WHICH MIGHT ARISE BY HAVING CONGRESSIONAL
REPRESENTATIVES SERVE ON EXECUTIVE BRANCH BOARDS AND/OR COMMITTEES." /5/
AS TO YOUR SECOND ALLEGED MAJOR POLICY ISSUE RELATING TO YOUR
CONTENTION, IN EFFECT, THAT BOARD EMPLOYEES ARE EXCLUDED FROM COVERAGE
UNDER THE ORDER BECAUSE THEY ARE APPOINTED WITHOUT REGARD TO CIVIL
SERVICE LAWS, THE COUNCIL IS OF THE OPINION THAT YOUR APPEAL PRESENTS NO
BASIS FOR REVIEW. IN THIS REGARD, YOUR APPEAL PROVIDES NO BASIS TO
SUPPORT A CONCLUSION THAT THE ASSISTANT SECRETARY'S DETERMINATION THAT
THE BOARD EMPLOYEES ARE NOT EXCLUDED IS INCONSISTENT WITH THE PURPOSES
AND POLICIES OF THE ORDER. THAT IS, YOUR APPEAL DOES NOT SHOW HOW THE
ASSISTANT SECRETARY'S DETERMINATION THAT THE COVERAGE OF BOARD EMPLOYEES
UNDER THE ORDER "IS DEPENDENT ON WHETHER THEY ARE EMPLOYEES OF AN
'AGENCY', RATHER THAN ON THEIR METHOD OF APPOINTMENT, PAY, OR COVERAGE
UNDER CIVIL SERVICE LAWS AND REGULATIONS" IS INCONSISTENT WITH EITHER
SECTION 2(B) OR ANY OTHER PROVISION OF THE ORDER.
FINALLY, NO BASIS FOR COUNCIL REVIEW IS PRESENTED BY YOUR THIRD
ALLEGED MAJOR POLICY ISSUE REGARDING ALLEGED CONFLICTS BETWEEN THE
ASSISTANT SECRETARY'S DECISION AND THE BOARD'S FIDUCIARY OBLIGATIONS AS
A TRUSTEE. IN THIS REGARD THE COUNCIL NOTES THAT THE ASSISTANT
SECRETARY EXPRESSLY CONSIDERED THIS ISSUE AND DETERMINED THAT THE
DESIGNATION OF THE BOARD AS AN "AGENCY" FOR THE PURPOSE OF COLLECTIVE
BARGAINING UNDER THE ORDER IN NO WAY CONFLICTS WITH THE POWERS AND
OBLIGATIONS OF THE BOARD AS ESTABLISHED BY CONGRESS. FURTHER, YOUR
APPEAL NEITHER DEMONSTRATES THAT SUCH CONFLICT WOULD OCCUR IN THE FUTURE
NOR, DESPITE THE ASSISTANT SECRETARY'S FINDING THAT BOARD EMPLOYEES HAVE
PREVIOUSLY BEEN INCLUDED IN THE APPROPRIATE UNIT IN THIS CASE, DOES IT
DEMONSTRATE OR EVEN ASSERT THAT ANY SUCH CONFLICT HAS OCCURRED IN THE
PAST. YOUR CONTENTION AS TO THE EFFECT OF THE ASSISTANT SECRETARY'S
DECISION IN THIS REGARD THUS CONSTITUTES MERELY SPECULATIVE DISAGREEMENT
WITH THE CONCLUSION REACHED BY THE ASSISTANT SECRETARY AND THUS DOES NOT
PRESENT A MAJOR POLICY ISSUE WARRANTING COUNCIL REVIEW.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS OR PRESENT A MAJOR POLICY ISSUE, YOUR APPEAL FAILS TO
MEET THE REQUIREMENTS FOR REVIEW AS SET FORTH IN SECTION 2411.12 OF THE
COUNCIL'S RULES AND REGULATIONS. ACCORDINGLY, YOUR PETITION FOR REVIEW
IS HEREBY DENIED. LIKEWISE, YOUR REQUEST FOR A STAY OF THE ASSISTANT
SECRETARY'S DECISION IS DENIED.
BY THE COUNCIL.
SINCERELY,
HAROLD D. KESSLER
ACTING EXECUTIVE DIRECTOR
CC: A/SLMR
LABOR
W. J. STONE
AFGE
/1/ SECTION 2(A) PROVIDES:
"AGENCY" MEANS AN EXECUTIVE DEPARTMENT, A GOVERNMENT CORPORATION, AND
AN INDEPENDENT
ESTABLISHMENT AS DEFINED IN SECTION 104 OF TITLE 5, UNITED STATES
CODE, EXCEPT THE GENERAL
ACCOUNTING OFFICE(.)
5 U.S.C. 104 PROVIDES:
FOR THE PURPOSE OF THIS TITLE, "INDEPENDENT ESTABLISHMENT" MEANS--
(1) AN ESTABLISHMENT IN THE EXECUTIVE BRANCH (OTHER THAN THE UNITED
STATES POSTAL SERVICE
OR THE POSTAL RATE COMMISSION) WHICH IS NOT AN EXECUTIVE DEPARTMENT,
MILITARY DEPARTMENT,
GOVERNMENT CORPORATION, OR PART THEREOF, OR PART OF AN INDEPENDENT
ESTABLISHMENT; AND
(2) THE GENERAL ACCOUNTING OFFICE.
/2/ SECTION 2(B) PROVIDES:
"EMPLOYEE" MEANS AN EMPLOYEE OF AN AGENCY AND AN EMPLOYEE OF A
NON-APPROPRIATED FUND
INSTRUMENTALITY OF THE UNITED STATES BUT DOES NOT INCLUDE, FOR THE
PURPOSE OF EXCLUSIVE
RECOGNITION OR NATIONAL CONSULTATION RIGHTS, A SUPERVISOR, EXCEPT AS
PROVIDED IN SECTION 24 OF
THIS ORDER(.)
/2A/ SEE ACTION, 2 A/SLMR 495, A/SLMR NO. 207 (1972), AND NATIONAL
SCIENCE FOUNDATION, 3 A/SLMR 564, A/SLMR NO. 316 (1973).
/3/ ACT OF SEPT. 22, 1978, PUB. L. NO. 95-379, 92 STAT. 724. WHILE
THIS ACT WAS APPROVED AFTER THE SUBMISSIONS OF THE AGENCY AND THE UNION
IN THIS CASE HAD BEEN FILED WITH THE COUNCIL, NEITHER PARTY SUBSEQUENTLY
BROUGHT THE ACT TO THE ATTENTION OF THE COUNCIL.
/4/ H.R. REP. NO. 1408, 95TH CONG., 2ND SESS. (1978).
/5/ S. REP. NO. 1161, 95TH CONG., 2ND SESS. (1978), REPRINTED IN
(1978) U.S. CODE CONG. & AD. NEWS 3216. THE SENATE REPORT ADDITIONALLY
NOTES THAT "(T)HE LEGISLATION WAS INTRODUCED AT THE REQUEST OF THE
ADMINISTRATOR OF GENERAL SERVICES ADMINISTRATION (SIC) AND HAS THE
SUPPORT OF THE ADMINISTRATION." ID. AT 2, (1978) U.S. CODE CONG. & AD.
NEWS AT 3217.
6 FLRC 950; FLRC NO. 78A-95; DECEMBER 19, 1978.
(SYNOPSIS) FLRC NO. 78A-95
DEPARTMENT OF COMMERCE, PATENT AND TRADEMARK OFFICE AND POPA (DALY,
ARBITRATOR). THE ARBITRATOR CONCLUDED THAT THE ACTIVITY DID NOT VIOLATE
THE PARTIES' AGREEMENT BY ISSUING A MEMORANDUM CONTAINING INSTRUCTIONS
CONCERNING QUALITY STEP INCREASES AND SPECIAL ACHIEVEMENT AWARDS; AND
THEREFORE DISMISSED THE GRIEVANCE. THE UNION APPEALED TO THE COUNCIL,
REQUESTING THAT THE COUNCIL ACCEPT ITS PETITION FOR REVIEW OF THE AWARD
DID NOT DRAW ITS ESSENCE FROM THE PARTIES' AGREEMENT AND (2) THAT THE
AWARD VIOLATED THE FEDERAL PERSONNEL MANUAL AND THE PERFORMANCE RATING
ACT OF 1950.
COUNCIL ACTION (DECEMBER 19, 1978). THE COUNCIL HELD THAT THE
UNION'S EXCEPTIONS WERE NOT SUPPORTED BY THE FACTS AND CIRCUMSTANCES
DESCRIBED IN THE PETITION. ACCORDINGLY, THE COUNCIL DENIED THE UNION'S
PETITION FOR REVIEW BECAUSE IT FAILED TO MEET THE REQUIREMENTS OF
SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE.
DECEMBER 19, 1978
MR. ALAN P. DOUGLAS, PRESIDENT
PATENT OFFICE PROFESSIONAL ASSOCIATION
6506 ELNIDO STREET
MCLEAN, VIRGINIA 22101
RE: DEPARTMENT OF COMMERCE, PATENT AND TRADEMARK
OFFICE AND POPA (DALY, ARBITRATOR), FLRC NO. 78A-95
DEAR MR. DOUGLAS:
THE COUNCIL HAS CAREFULLY CONSIDERED THE UNION'S PETITION FOR REVIEW
OF THE ARBITRATOR'S AWARD IN THE ABOVE-ENTITLED CASE.
ACCORDING TO THE ARBITRATOR, THE PATENT AND TRADEMARK OFFICE (THE
ACTIVITY) AND THE PATENT OFFICE PROFESSIONAL ASSOCIATION (THE UNION)
ENTERED INTO THEIR PRESENT LABOR AGREEMENT ON DECEMBER 13, 1972, WHICH
INCLUDED THE FOLLOWING PROVISION:
ARTICLE VII, SECTION 2:
THE PARTIES AGREE THAT A FULL EVALUATION OF THE PERFORMANCE OF A
MEMBER OF THE UNIT MAY
INCLUDE, BUT NOT IN ANY WAY BE SOLELY LIMITED TO, QUANTITATIVE
CRITERIA. THE QUANTITATIVE
CRITERIA FOR ANY EMPLOYEE MUST BE EQUITABLE, REASONABLY ATTAINABLE
AND TAKE INTO CONSIDERATION
WORK-RELATED PROBLEMS SUCH AS THE TECHNOLOGY AND SEARCH PROBLEMS
ENCOUNTERED, AS WELL AS
RECOGNITIONS AND QUALIFICATIONS OF THE EMPLOYEES INVOLVED. THE
EMPLOYEE SHALL BE CONSULTED
BEFORE THE QUANTITATIVE CRITERIA ARE ESTABLISHED OR CHANGED.
ON JULY 9, 1976, THE PARTIES AGREED TO AMEND THEIR AGREEMENT BY
ADDING, IN PART, THE FOLLOWING PROVISIONS TO ARTICLE VII, SECTION 2:
INSOFAR AS PURELY QUANTITATIVE CRITERIA ARE CONCERNED, AN
INDIVIDUAL'S GOAL SHALL HAVE THE
FOLLOWING MEANING AND EFFECT:
1. AN ACHIEVEMENT OF 110% OF A GOAL OVER A PERIOD OF TWELVE
CONSECUTIVE MONTHS SHALL BE
DEEMED PRIMA FACIE EVIDENCE OF SUFFICIENTLY OUTSTANDING PERFORMANCE
OF THE FACTOR OF
PRODUCTION TO WARRANT THE GRANT OF A QUALITY STEP INCREASE, EXCEPT
WHERE THE INDIVIDUAL HAS
BEEN PROMOTED DURING THE TWELVE MONTH PERIOD, IN WHICH CASE THE
TWELVE MONTH PERIOD RUNS FROM
THE DATE OF PROMOTION.
2. AN ACHIEVEMENT OF 110% OF A GOAL OVER A PERIOD OF SIX CONSECUTIVE
MONTHS SHALL BE
DEEMED PRIMA FACIE EVIDENCE OF SUFFICIENTLY EXCEPTIONAL PERFORMANCE
ON THE FACTOR OF
PRODUCTION TO WARRANT THE GRANT OF A SPECIAL ACHIEVEMENT AWARD,
EXCEPT WHERE THE INDIVIDUAL
HAS BEEN PROMOTED DURING THE SIX MONTH PERIOD, IN WHICH CASE THE SIX
MONTH PERIOD RUNS FROM
THE DATE OF THE PROMOTION.
ON JULY 14, 1976, THE DEPUTY ASSISTANT COMMISSIONER FOR PATENTS
ISSUED A MEMORANDUM CONTAINING INSTRUCTIONS FOR IMPLEMENTATION OF THE
AMENDMENT TO THE AGREEMENT. THE MEMORANDUM STATED, WITH RESPECT TO THE
AMENDMENT PROVISIONS AT ISSUE, THAT "PRIMA FACIE EVIDENCE" ON THE FACTOR
OF PRODUCTION TO WARRANT THE GRANT OF 'A QUALITY STEP INCREASE' IS 110%
ACHIEVEMENT FOR TWELVE MONTHS." THE MEMORANDUM THEN STATED THAT THE
AWARDING OF ANY ADDITIONAL QUALITY STEP INCREASES (QSI'S) AFTER THE
FIRST ONE IN ANY GRADE WOULD CONTINUE TO BE GOVERNED BY A 1972
MEMORANDUM WHICH HAD ESTABLISHED STANDARDS OF 117.5% ACHIEVEMENT FOR THE
SECOND QSI, 112.5% ACHIEVEMENT FOR THE THIRD QSI, AND PROGRESSIVELY
HIGHER ACHIEVEMENT FOR QSI'S THEREAFTER.
THE UNION FILED A GRIEVANCE, CONTENDING THAT THE MEMORANDUM OF
INSTRUCTIONS VIOLATED THE NEGOTIATED AGREEMENT BY APPLYING ASCENDING
STANDARDS OF QSI'S AND SPECIAL ACHIEVEMENT AWARDS (SAA'S), RATHER THAN
USING THE SINGLE STANDARD OF 110% SET FORTH IN THE AMENDMENT.
THE ARBITRATOR STATED THAT THE ISSUE IN THE CASE, THOUGH DIFFERENTLY
WORDED BY THE TWO PARTIES, PRIMARILY CONCERNED WHETHER OR NOT THE
ACTIVITY'S REQUIREMENTS FOR THE GRANTING OF QSI OR SAA AWARDS SUBSEQUENT
TO THE FIRST AWARD ARE IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE VII,
SECTION 2, OF THE LABOR AGREEMENT, THE AMENDMENT THERETO, AND OTHER
PERTINENT DOCUMENTS AND REGULATIONS.
THE ARBITRATOR CONCLUDED:
(S)INCE THE LANGUAGE OF THE LABOR AGREEMENT AMENDMENT LACKS
SPECIFICITY RE THE
IMPLEMENTATION OF ITS PROVISIONS AND SINCE THE . . . TESTIMONY (AT
THE ARBITRATION HEARING)
OFFER(ED) NO EVIDENCE THAT A CHANGE IN THE EXISTING POLICY OF
IMPLEMENTATION WAS CONSIDERED,
DISCUSSED OR NEGOTIATED, IT MUST NECESSARILY BE CONCLUDED THAT THE
ACTIVITY) HAS NOT VIOLATED
ARTICLE VII, SECTION 2 OF THE LABOR AGREEMENT, THE AMENDMENT THERETO,
OR OTHER PERTINENT
DOCUMENTS. ACCORDINGLY, THE ARBITRATOR MUST RULE IN FAVOR OF THE
(ACTIVITY) AND DISMISS THE
(UNION'S) GRIEVANCE.
THE UNION REQUESTS THAT THE COUNCIL ACCEPT ITS PETITION FOR REVIEW OF
THE ARBITRATOR'S AWARD ON THE BASIS OF THE EXCEPTIONS DISCUSSED BELOW.
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."
IN ITS FIRST EXCEPTION, THE UNION CONTENDS THAT THE AWARD DOES NOT
DRAW ITS ESSENCE FROM THE COLLECTIVE BARGAINING AGREEMENT. IN SUPPORT
OF THIS EXCEPTION, THE UNION ASSERTS THAT THE ARBITRATOR'S AWARD
"TOTALLY FAILS TO GIVE ANY EFFECT TO THE AGREED-UPON, SIGNED CONTRACT
LANGUAGE."
THE COUNCIL WILL GRANT A PETITION FOR REVIEW OF AN ARBITRATOR'S AWARD
WHERE IT APPEARS, BASED ON THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE
PETITION, THAT THE AWARD DOES NOT DRAW ITS ESSENCE FROM THE NEGOTIATED
AGREEMENT. NAGE LOCAL R8-14 AND FEDERAL AVIATION ADMINISTRATION,
OKLAHOMA CITY, OKLAHOMA (STRATTON, ARBITRATOR), 3 FLRC 475 (FLRC NO.
74A-38 (JULY 30, 1975), REPORT NO. 79). HOWEVER, THE COUNCIL IS OF THE
OPINION THAT THE UNION'S EXCEPTION IS NOT SUPPORTED BY THE FACTS AND
CIRCUMSTANCES DESCRIBED IN THE PETITION. THUS, THE UNION HAS PRESENTED
NO FACTS AND CIRCUMSTANCES TO DEMONSTRATE THAT THE ARBITRATOR'S AWARD,
BASED UPON THE ARBITRATOR'S INTERPRETATION AND APPLICATION OF THE
PARTIES' AGREEMENT, "IS SO PALPABLY FAULTY THAT NO JUDGE, OR GROUP OF
JUDGES, COULD EVER CONCEIVABLY HAVE MADE SUCH A RULING," OR THAT THE
AWARD "COULD NOP IN ANY RATIONAL WAY BE DERIVED FROM THE AGREEMENT," OR
THAT IT "EVIDENCES A MANIFEST DISREGARD OF THE AGREEMENT," OR "ON ITS
FACE REPRESENTS AN IMPLAUSIBLE INTERPRETATION THEREOF." DEPARTMENT OF
THE AIR FORCE, NEWARK AIR FORCE STATION AND AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2221 (ATWOOD, ARBITRATOR), 5 FLRC 230 (FLRC
NO. 76A-116 (MAR. 31, 1977), REPORT NO. 123). RATHER, THE UNION, BY
ARGUING THAT THE ARBITRATOR'S AWARD IGNORES THE EXPRESS LANGUAGE OF THE
PARTIES' AGREEMENT, APPEARS TO BE DISAGREEING WITH THE ARBITRATOR'S
INTERPRETATION AND APPLICATION OF THE AGREEMENT PROVISION AT ISSUE AND
HIS REASONING IN CONNECTION THEREWITH. THE COUNCIL HAS CONSISTENTLY
HELD THAT THE INTERPRETATION OF CONTRACT PROVISIONS AND, HENCE,
RESOLUTION OF THE GRIEVANCE, IS A MATTER TO BE LEFT TO THE ARBITRATOR'S
JUDGMENT. E.G., DEPARTMENT OF THE AIR FORCE, SCOTT AIR FORCE BASE AND
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R7-27 (HARRISON,
ARBITRATOR), 4 FLRC 93 (FLRC NO. 75A-101 (JAN. 30, 1976), REPORT NO.
96). FURTHERMORE, IT IS THE ARBITRATOR'S AWARD RATHER THAN HIS
CONCLUSION OR SPECIFIC REASONING THAT IS SUBJECT TO CHALLENGE. FRANCES
N. KENNY AND NATIONAL WEATHER SERVICE (LUBOW, ARBITRATOR), 3 FLRC 713
(FLRC NO. 75A-30 (NOV. 14, 1975), REPORT NO. 89). THEREFORE, THE
UNION'S FIRST EXCEPTION PROVIDES NO BASIS FOR ACCEPTANCE OF ITS PETITION
UNDER SECTION 2411.32 OF THE COUNCIL'S RULES.
IN ITS SECOND EXCEPTION, THE UNION CONTENDS THAT THE AWARD VIOLATES
THE REQUIREMENTS OF THE FEDERAL PERSONNEL MANUAL (FPM) AND THE
PERFORMANCE RATING ACT OF 1950. IN SUPPORT OF THIS EXCEPTION, THE UNION
QUOTES FPM CHAPTER 451, SUBCHAPTER 3, SECTION 3-3(B)(9) AS PROVIDING:
. . . NORMALLY, WHEN AN OUTSTANDING RATING IS APPROVED, A QUALITY
STEP INCREASE WILL BE
GRANTED IN ALL CASES. . . .
THE UNION CONTENDS THAT THE EFFECT OF THE ABOVE-CITED FPM PROVISION
IS TO ESTABLISH THAT AN OUTSTANDING PERFORMANCE RATING IS, AS A FORM OF
RECOGNITION, SUPERIOR TO A QUALITY STEP INCREASE, AND THAT SINCE
ASCENDING STANDARDS OF PERFORMANCE MAY NOT BE APPLIED TO AN OUTSTANDING
RATING, THEN "IT FOLLOWS THAT THOSE SAME ASCENDING STANDARDS OF
PERFORMANCE MAY NOT BE APPLIED TO . . . THE QUALITY STEP INCREASE.
THE COUNCIL WILL GRANT A PETITION FOR REVIEW OF AN ARBITRATOR'S AWARD
ON THE GROUND THAT THE AWARD VIOLATES APPROPRIATE REGULATION, INCLUDING
THE FEDERAL PERSONNEL MANUAL. HOWEVER, IN THIS CASE, THE COUNCIL IS OF
THE OPINION THAT THE UNION HAS FAILED TO PROVIDE SUFFICIENT FACTS AND
CIRCUMSTANCES TO SUPPORT ITS EXCEPTION. IN THIS REGARD, THE COUNCIL
NOTES THAT THE FPM PROVISION CITED BY THE UNION IN SUPPORT OF ITS
EXCEPTION HAS BEEN SUPERSEDED AND THAT SECTION 3-3(B)(9), AS REVISED
APRIL 1, 1977, NOW READS, IN RELEVANT PART:
(T)HE GRANTING OF A QUALITY INCREASE AND THE ASSIGNING OF AN
OUTSTANDING RATING ARE TWO
SEPARATE ACTIONS, AND AN EMPLOYEE MAY MEET THE CRITERIA FOR A QUALITY
INCREASE, BUT NOT FOR AN
OUTSTANDING RATING. A QUALITY INCREASE IS NOT AUTOMATICALLY GRANTED
WHEN AN OUTSTANDING
RATING IS ASSIGNED; HOWEVER, BECAUSE AN EMPLOYEE WHO RECEIVES AN
OUTSTANDING RATING HAS MET A
HIGHER CRITERION IN TOTAL PERFORMANCE THAN IS REQUIRED FOR A QUALITY
INCREASE, IT IS IMPORTANT
FOR THE EMPLOYEE'S SUPERVISOR TO CONSIDER THE APPROPRIATENESS OF
GRANTING A QUALITY INCREASE
WHEN AN OUTSTANDING RATING IS GIVEN.
THUS, THE REVISED LANGUAGE OF SECTION 3-3(B)(9) ON ITS FACE DOES NOT
PROVIDE SUPPORT FOR THE UNION'S SECOND EXCEPTION. MOREOVER, NOTHING IN
THE CITED FPM PROVISION DEALS WITH THE APPLICATION OF ASCENDING
STANDARDS OF PERFORMANCE TO QUALITY STEP INCREASES AS CONTENDED BY THE
UNION IN ITS PETITION. THEREFORE, THE UNION HAS FAILED TO PROVIDE FACTS
AND CIRCUMSTANCES TO WARRANT COUNCIL REVIEW ON THE GROUND THAT THE
ARBITRATOR'S AWARD VIOLATES THE FPM. AS TO THE UNION'S RELATED
ASSERTION THAT THE AWARD VIOLATES THE PERFORMANCE RATING ACT OF 1950,
THE UNION MAKES ONLY A BARE ASSERTION IN THIS REGARD AND PRESENTS NO
FACTS AND CIRCUMSTANCES IN SUPPORT THEREOF. THEREFORE, THE UNION'S
SECOND EXCEPTION PROVIDES NO BASIS FOR ACCEPTANCE OF ITS 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 AS SET FORTH IN
SECTION 2411.32 OF THE COUNCIL'S RULES OF PROCEDURE.
BY THE COUNCIL.
SINCERELY,
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
CC: G. WAHLERT
PTO
6 FLRC 944; FLRC NO. 78A-93; DECEMBER 19, 1978.
(SYNOPSIS) FLRC NO. 78A-93
WILLIAMS AIR FORCE BASE AND AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES (AFL-CIO, LOCAL 1776 (DAUGHTON, ARBITRATOR). THE ARBITRATOR
FOUND THAT THE ACTIVITY DID NOT VIOLATE THE COLLECTIVE BARGAINING
AGREEMENT WHEN IT REVISED THE POSITION DESCRIPTION OF CERTAIN OF ITS
EMPLOYEES, RESULTING IN THE RECLASSIFICATION OF THE POSITIONS OF THOSE
EMPLOYEES AS WG-8 RATHER THAN WG-10. THEREFORE, THE ARBITRATOR DENIED
THE GRIEVANCE. THE UNION FILED EXCEPTIONS TO THE AWARD WITH THE COUNCIL
ALLEGING THAT (1) THE AWARD VIOLATED THE INTENT OF THE ORDER; (2) THE
AWARD VIOLATED THE AGREEMENT; AND (3) THE AWARD WAS INCONSISTENT WITH
THE AWARD OF ANOTHER ARBITRATOR IN AN EARLIER CASE.
COUNCIL ACTION (DECEMBER 19, 1978). AS TO (1), THE COUNCIL HELD THAT
THE UNION'S PETITION DID NOT CONTAIN SUFFICIENT FACTS AND CIRCUMSTANCES
TO SUPPORT ITS ALLEGATION. AS TO (2) AND (3), THE COUNCIL HELD THAT THE
EXCEPTIONS PROVIDED 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.
DECEMBER 19, 1978
MR. STANLEY LUBIN
MCKENDREE AND LUBIN
SUITE 1410, FINANCIAL CENTER
3343 N. CENTRAL AVENUE
PHOENIX, ARIZONA 85012
RE: WILLIAMS AIR FORCE BASE AND AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES
(AFL-CIO, LOCAL 1776 (DAUGHTON, ARBITRATOR),
FLRC NO. 78A-93
DEAR MR. LUBIN:
THE COUNCIL HAS CAREFULLY CONSIDERED THE UNION'S PETITION FOR REVIEW
OF THE ARBITRATOR'S AWARD IN THE ABOVE-ENTITLED CASE.
ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER AROSE IN
JANUARY 1977 WHEN AIRCRAFT MECHANICS EMPLOYED IN THE TRANSIENT ALERT
BRANCH AT WILLIAMS AIR FORCE BASE WERE ASSIGNED DUTIES RELATING TO BASE
AIRCRAFT. PRIOR TO THIS TIME, THE DUTIES OF THESE AIRCRAFT MECHANICS
WERE LIMITED TO TRANSIENT AIRCRAFT. A GRIEVANCE WAS FILED CHALLENGING
MANAGEMENT'S AUTHORITY TO ASSIGN DUTIES NOT INCLUDED IN THE POSITION
DESCRIPTION. THE UNION WITHDREW THE GRIEVANCE AFTER A POSITION
CLASSIFICATION SPECIALIST WAS ASSIGNED TO REVIEW THE EXISTING POSITION
DESCRIPTION COVERING THE EMPLOYEES IN QUESTION.
AS A RESULT OF THE REVIEW, A MEETING WAS HELD WITH THE UNION IN APRIL
1977, AT WHICH TIME THE PRESIDENT OF THE UNION LOCAL BECAME AWARE OF A
POSSIBLE DOWNGRADING OF THE EMPLOYEES FROM THEIR CURRENT WG-10
CLASSIFICATION TO WG-8. IN JUNE 1977 A REVISED POSITION DESCRIPTION WAS
ISSUED AT THE WG-8 LEVEL, AND IN JULY 1977 THE EMPLOYEES WERE NOTIFIED
OF THEIR RECLASSIFICATION. THE UNION THEN FILED THE GRIEVANCE IN THIS
CASE AND IT WAS ULTIMATELY SUBMITTED TO ARBITRATION.
THE ISSUE, AS STATED BY THE ARBITRATOR, WAS:
DID THE EMPLOYER VIOLATE THE COLLECTIVE BARGAINING AGREEMENT BETWEEN
THE PARTIES WHEN IT
REVISED THE POSITION DESCRIPTION OF CERTAIN EMPLOYEES IN THE
TRANSIENT ALERT BRANCH, WHICH
REVISION, WHEN APPROVED BY HEADQUARTERS, AIR TRAINING COMMAND, ON
JUNE 29, 1977, RESULTED IN
THE RECLASSIFICATION OF SUCH EMPLOYEES AS WG-8 RATHER THAN THEIR
PREVIOUS CLASSIFICATION OF
WG-10? IF SO, WHAT IS THE APPROPRIATE REMEDY FOR SUCH EMPLOYEES?
THE ARBITRATOR WENT ON TO STATE:
THE CENTRAL ISSUE BEFORE THE ARBITRATOR IS WHETHER THE EMPLOYER WAS
REQUIRED UNDER THE
COLLECTIVE BARGAINING AGREEMENT TO CONSULT WITH THE UNION PRIOR TO
THE REVISION OF THE
POSITION DESCRIPTION WHICH RESULTED IN A RECLASSIFICATION OF THE
POSITION FROM WG-10 TO
WG-8. THE RESOLUTION OF THIS ISSUE DEPENDS ON THE INTERPRETATION OF
ARTICLE 16 SECTION B OF
THE COLLECTIVE BARGAINING AGREEMENT WHICH READS:
MANAGEMENT ACTIONS WHICH RESULT IN POSITION CLASSIFICATION CHANGES
AFFECTING WORKING
CONDITIONS OF EMPLOYEES WILL BE SUBJECT TO CONSULTATION WITH LOCAL
REPRESENTATIVES PRIOR TO
IMPLEMENTATION.
THE ARBITRATOR DENIED THE GRIEVANCE. IN DOING SO, HE REFERRED TO THE
AGREEMENT PROVISION AT ISSUE AND CONCLUDED:
IN THE OPINION OF THE ARBITRATOR, THE KEY WORDS INSOFAR AS THIS
PARTICULAR FACT SITUATION
IS CONCERNED ARE "AFFECTING WORKING CONDITIONS OF EMPLOYEES." THERE
IS NO QUESTION THAT
MANAGEMENT ACTIONS RESULTED IN A POSITION CLASSIFICATION CHANGE.
WHETHER THAT CHANGE AFFECTED
WORKING CONDITIONS OF EMPLOYEES IS ANOTHER MATTER, AND ALTHOUGH THE
UNION CONTENDS THAT ANY
CHANGE IN POSITION DESCRIPTION NECESSARILY INCLUDES A CHANGE IN
WORKING CONDITIONS, THE
TESTIMONY IN THIS CASE INDICATES THAT NO CHANGE IN WORKING CONDITIONS
OCCURRED. ESSENTIALLY,
THE RESULT OF THE POSITION DESCRIPTION CHANGE WAS A REDUCTION IN
DUTIES OF THE AFFECTED
EMPLOYEES WITHOUT ANY CHANGE IN THE CONDITIONS UNDER WHICH THE WORK
WAS PERFORMED. UNDER
THESE CIRCUMSTANCES THE ARBITRATOR CANNOT ACCEPT THE ARGUMENT THAT
ANY POSITION DESCRIPTION
CHANGES NECESSARILY AFFECTS WORKING CONDITIONS.
ALTHOUGH A FULLER EXCHANGE BETWEEN THE EMPLOYER AND THE UNION DURING
THE PROCESS OF THE
CHANGE IN THE POSITION CLASSIFICATION MIGHT HAVE ENHANCED LABOR
RELATIONS AT WILLIAMS AIR
FORCE BASE, THE ARBITRATOR CANNOT CONCLUDE UNDER THE FACTS PRESENTED
ON THIS GRIEVANCE THAT
THE EMPLOYER FAILED TO FULFILL A DUTY OWNED (SIC) THE UNION UNDER THE
COLLECTIVE BARGAINING AGREEMENT.
THE UNION SEEKS COUNCIL REVIEW OF THE AWARD ON THE BASIS OF THE THREE
EXCEPTIONS DISCUSSED BELOW. THE AGENCY DID NOT FILE 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."
IN ITS FIRST EXCEPTION, THE UNION REFERS TO THE ARBITRATOR'S
INTERPRETATION OF THE WORDS "WORKING CONDITIONS" IN ARTICLE 16, SECTION
B, AND ASSERTS THAT HIS AWARD VIOLATES THE INTENT OF THE ORDER,
PARTICULARLY SECTION 19(A)(2) AND (6). /1/
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 THE ORDER. HOWEVER, THE COUNCIL
IS OF THE OPINION THAT THE PETITION IN THIS CASE DOES NOT CONTAIN
SUFFICIENT FACTS AND CIRCUMSTANCES TO SUPPORT THE ALLEGATION THAT THE
AWARD VIOLATES THE ORDER. THE UNION'S FIRST EXCEPTION IS SIMILAR TO AN
EXCEPTION MADE IN INDIANA ARMY AMMUNITION PLANT, CHARLESTON, INDIANA AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES LOCAL 1581 (RENDER,
ARBITRATOR), 3 FLRC 777, 782 (FLRC NO. 75A-84 (NOV. 28, 1975), REPORT
NO. 92). IN THAT CASE THE COUNCIL, IN FINDING THAT SUCH AN EXCEPTION
DOES NOT PROVIDE A BASIS FOR ACCEPTANCE OF A PETITION FOR REVIEW,
STATED:
IN ITS FIRST EXCEPTION, THE UNION CONTENDS THAT THE ARBITRATOR'S
AWARD VIOLATES SECTION
19(A)(1) AND (6) OF 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 (AUG. 14,
1975), REPORT NO. 81 AND OFFICE OF ECONOMIC OPPORTUNITY AND AMERICAN
FEDERATION OF GOVERNMENT
EMPLOYEES LOCAL 2677 (MATTHEWS, ARBITRATOR), FLRC NO. 74A-76 (JUNE
26, 1975), REPORT NO. 76.
SIMILARLY, THE UNION'S FIRST EXCEPTION IN THE INSTANT CASE PROVIDES
NO BASIS FOR ACCEPTANCE OF THE UNION'S PETITION UNDER SECTION 2411.12 OF
THE COUNCIL'S RULES.
THE UNION'S SECOND EXCEPTION IS THAT THE ARBITRATOR'S AWARD VIOLATES
THE AGREEMENT. THE COUNCIL HAS CONSISTENTLY HELD THAT THIS EXCEPTION
DOES NOT PROVIDE A BASIS FOR ACCEPTANCE OF A PETITION FOR REVIEW,
BECAUSE THE INTERPRETATION OF CONTRACT PROVISIONS IS A MATTER TO BE LEFT
TO THE ARBITRATOR'S JUDGMENT. E.G., AIRWAY FACILITIES DIVISION, FEDERAL
AVIATION ADMINISTRATION, EASTERN REGION AND NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R2-10R (KRONISH,>ARBITRATOR), 3 FLRC 547
(FLRC NO. 75A-50 (AUG. 15, 1975), REPORT NO. 82); LABOR LOCAL 12, AFGE
(AFL-CIO) AND U.S. DEPARTMENT OF LABOR (MALLET-PREVOST, ARBITRATOR), 3
FLRC 569 (FLRC NO. 75A-36 (SEPT. 9, 1975), REPORT NO. 82). THUS, THE
UNION'S SECOND EXCEPTION ALSO PROVIDES NO BASIS FOR ACCEPTANCE OF THE
UNION'S PETITION FOR REVIEW.
THE UNION'S THIRD EXCEPTION IS THAT THE ARBITRATOR'S AWARDS IS
INCONSISTENT WITH THE AWARD OF ANOTHER ARBITRATOR IN AN EARLIER CASE.
THUS, THE UNION CONTENDS THAT THE AWARD MUST BE VACATED BECAUSE THE
ARBITRATOR, CONTRARY TO ANOTHER ARBITRATOR IN AN EARLIER CASE, FOUND
THAT A CLASSIFICATION ACTION RESULTING IN DEMOTION WITHOUT CHANGES IN
DUTIES DOES NOT CONSTITUTE A CHANGE IN WORKING CONDITIONS.
THIS EXCEPTION DOES NOT STATE A GROUND UPON WHICH THE COUNCIL HAS
PREVIOUSLY GRANTED REVIEW OF AN ARBITRATION AWARD. MOREOVER, THE UNION
FAILS TO CITE, AND OUR OWN RESEARCH HAS FAILED TO DISCLOSE, ANY PRIVATE
SECTOR PRECEDENT WHICH WOULD INDICATE THAT THIS IS A GROUND UPON WHICH
CHALLENGES TO ARBITRATION AWARDS ARE SUSTAINED BY COURTS IN THE PRIVATE
SECTOR. THUS, THE UNION'S THIRD EXCEPTION ESTABLISHES NO BASIS FOR
ACCEPTANCE OF ITS PETITION UNDER SECTION 2411.32 OF THE COUNCIL'S RULES.
MOREOVER, THE EXCEPTION IS, IN ESSENCE, PREMISED ON THE UNION'S
AGREEMENT WITH AN ARBITRATOR'S REASONING LEADING TO AN AWARD IN AN
EARLIER CASE AND DISAGREEMENT WITH THE ARBITRATOR'S REASONING LEADING TO
THE AWARD IN THE INSTANT CASE. THE COUNCIL HAS PREVIOUSLY HELD THAT "IT
IS THE AWARD RATHER THAN THE CONCLUSION OR SPECIFIC REASONING EMPLOYED
BY THE ARBITRATOR THAT IS SUBJECT TO CHALLENGE." FEDERAL AVIATION
ADMINISTRATION, ST. LOUIS AIR TRAFFIC CONTROL TOWER AND PROFESSIONAL AIR
TRAFFIC CONTROLLERS ORGANIZATION (MOORE, ARBITRATOR), 5 FLRC 940, 942
(FLRC NO. 77A-95 (NOV. 30, 1977), REPORT NO. 139). THUS, THIS EXCEPTION
PROVIDES NO BASIS FOR ACCEPTANCE OF THE UNION'S PETITION FOR REVIEW.
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.
SINCERELY,
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
CC: J. W. CLARK
USAF
/1/ SECTION 19(A) OF THE ORDER PROVIDES IN PERTINENT PART:
SEC. 19. UNFAIR LABOR PRACTICES. (A) AGENCY MANAGEMENT SHALL NOT--
. . . .
(2) ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION BY
DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION, OR OTHER
CONDITIONS OF EMPLOYMENT;
. . . .
(6) REFUSE TO CONSULT, CONFER, OR NEGOTIATE WITH A LABOR ORGANIZATION
AS REQUIRED BY THIS
ORDER.
6 FLRC 941; FLRC NO. 78A-91; DECEMBER 19, 1978.
(SYNOPSIS) FLRC NO. 78A-91
ARMY AND AIR FORCE EXCHANGE SERVICE, SHEPPARD AIR FORCE BASE, TEXAS,
A/SLMR NO. 1063. THE ASSISTANT SECRETARY, UPON A REPRESENTATION
PETITION FILED BY THE UNION (LOCAL 3718, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO), FOUND THAT A UNIT OF 13 EMPLOYEES
ASSIGNED TO TWO MOTION PICTURE THEATERS AT THE ACTIVITY WAS NOT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. THE UNION
APPEALED TO THE COUNCIL, CONTENDING, IN EFFECT, THAT THE ASSISTANT
SECRETARY'S DECISION WAS ARBITRARY AND CAPRICIOUS OR PRESENTED A MAJOR
POLICY ISSUE.
COUNCIL ACTION (DECEMBER 19, 1978). THE COUNCIL HELD THAT THE
UNION'S PETITION FOR REVIEW DID NOT MEET THE REQUIREMENTS OF SECTION
2411.12 OF THE COUNCIL'S RULES OF PROCEDURE; THAT IS, THE DECISION OF
THE ASSISTANT SECRETARY DID NOT APPEAR ARBITRARY AND CAPRICIOUS OR
PRESENT ANY MAJOR POLICY ISSUE. ACCORDINGLY, THE COUNCIL DENIED THE
UNION'S PETITION FOR REVIEW.
DECEMBER 19, 1978
MS. JIMMIE F. GRIFFITH
NATIONAL REPRESENTATIVE
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
3141 CLIFFOAK DRIVE
DALLAS, TEXAS 75233
RE: ARMY AND AIR FORCE EXCHANGE SERVICE,
SHEPPARD AIR FORCE BASE, TEXAS, A/SLMR
NO. 1063, FLRC NO. 78A-91
DEAR MS. GRIFFITH:
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, AS FOUND BY THE ASSISTANT SECRETARY, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3718 (THE UNION),
WHICH REPRESENTS A UNIT OF CERTAIN EMPLOYEES OF THE ARMY AND AIR FORCE
EXCHANGE SERVICE, SHEPPARD AIR FORCE BASE, TEXAS (THE ACTIVITY), FILED A
PETITION (RO) SEEKING AN ELECTION IN A UNIT OF 13 EMPLOYEES ASSIGNED TO
THE 2 MOTION PICTURE THEATERS AT THE ACTIVITY.
THE ASSISTANT SECRETARY FOUND THAT THE UNIT SOUGHT BY THE UNION WAS
NOT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION, AS "THE
CLAIMED EMPLOYEES DO NOT SHARE A COMMUNITY OF INTEREST WHICH IS SEPARATE
AND APART FROM OTHER REPRESENTED AND CERTAIN OTHER UNREPRESENTED
EMPLOYEES OF THE (A)CTIVITY." IN SO FINDING, THE ASSISTANT SECRETARY
STATED:
(T)HE EVIDENCE ESTABLISHES THAT THE CLAIMED EMPLOYEES HAVE CERTAIN
COMMON SKILLS WHICH ARE
INTERCHANGEABLE AND ARE INTERMINGLED IN VARIOUS DEGREES WITH
EMPLOYEES THROUGHOUT THE
(A)CTIVITY, WHO ARE BOTH REPRESENTED AND UNREPRESENTED. FURTHER, ALL
PERSONNEL POLICIES AND
PRACTICES ARE ADMINISTERED BY THE (A)CTIVITY'S PERSONNEL SECTION AND
THE (ACTIVITY) MANAGER IS
AUTHORIZED TO APPROVE ALL PERSONNEL ACTIONS. MOREOVER, IN MY VIEW,
THE PROPOSED UNIT, WHICH
CONTAINS CERTAIN EMPLOYEES AT TWO MOTION PICTURE THEATERS ON THE
BASE, COULD NOT REASONABLY BE
EXPECTED TO PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS BUT, RATHER, WOULD
LEAD TO THE ARTIFICIAL FRAGMENTATION OF THE (A)CTIVITY'S
UNREPRESENTED EMPLOYEES.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT THE UNION'S RO
PETITION BE DISMISSED.
IN YOUR PETITION FOR REVIEW FILED ON BEHALF OF THE UNION, YOU
CONTEND, IN EFFECT, THAT THE ASSISTANT SECRETARY'S DECISION APPEARS
ARBITRARY AND CAPRICIOUS OR PRESENTS A MAJOR POLICY ISSUE INASMUCH AS
YOU "FAIL TO UNDERSTAND THE BASIS FOR THE DECISION." IN THIS REGARD YOU
ASSERT ESSENTIALLY THAT THE ASSISTANT SECRETARY SHOULD HAVE INCLUDED THE
THEATER EMPLOYEES IN THE ESTABLISHED UNIT INASMUCH AS THE EVIDENCE SHOWS
THAT "THERE IS A COMMUNITY OF INTEREST," "THERE IS NO FRAGMENTATION,"
AND "THERE ARE NO UNREPRESENTED EMPLOYEES EMPLOYED AT (THE ACTIVITY)
OTHER THAN THE (T)HEATER EMPLOYEES."
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, IT
DOES NOT APPEAR THAT THE DECISION OF THE ASSISTANT SECRETARY IS
ARBITRARY AND CAPRICIOUS OR PRESENTS ANY MAJOR POLICY ISSUES. THUS,
YOUR CONTENTIONS AS SET FORTH ABOVE ALL CONSTITUTE, IN ESSENCE, MERE
DISAGREEMENT WITH THE ASSISTANT SECRETARY'S FACTUAL DETERMINATIONS,
BASED UPON "THE ENTIRE RECORD IN THE SUBJECT CASE," THAT THE THEATER
EMPLOYEES INTERCHANGE WITH EMPLOYEES THROUGHOUT THE ACTIVITY WHO ARE
BOTH REPRESENTED AND UNREPRESENTED, AND THAT THE PROPOSED UNIT "WOULD
LEAD TO THE ARTIFICIAL FRAGMENTATION OF THE ACTIVITY'S UNREPRESENTED
EMPLOYEES."
ACCORDINGLY, SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR
ARBITRARY AND CAPRICIOUS OR PRESENT A MAJOR POLICY ISSUE, YOUR APPEAL
FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS SET FORTH IN SECTION
2411.12 OF THE COUNCIL'S RULES OF PROCEDURE, AND THEREFORE YOUR PETITION
FOR REVIEW IS HEREBY DENIED.
BY THE COUNCIL.
SINCERELY,
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
CC: A/SLMR
LABOR
J. W. DEMIK
AAFES
6 FLRC 937; FLRC NO. 78A-86; DECEMBER 15, 1978.
(SYNOPSIS) FLRC NO. 78A-86
DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, A/SLMR
NO. 1073. THE ASSISTANT SECRETARY FOUND, IN PERTINENT PART, THAT
SECTION 19(D) OF THE ORDER PRECLUDED FURTHER PROCESSING OF THE SECTION
19(A)(1) AND (6) COMPLAINT FILED BY THE UNION (NATIONAL ASSOCIATION OF
AIR TRAFFIC SPECIALISTS), AND ORDERED THAT THE COMPLAINT BE DISMISSED.
THE UNION APPEALED TO THE COUNCIL, CONTENDING THAT THE ASSISTANT
SECRETARY'S DECISION RAISED A MAJOR POLICY ISSUE.
COUNCIL ACTION (DECEMBER 15, 1978). THE COUNCIL HELD THAT THE
UNION'S PETITION FOR REVIEW DID NOT MEET THE REQUIREMENTS OF SECTION
2411.12 OF THE COUNCIL'S RULES OF PROCEDURE; THAT IS, THE DECISION OF
THE UNION NEITHER ALLEGED, NOR DID IT APPEAR, THAT THE DECISION WAS
ARBITRARY AND CAPRICIOUS. ACCORDINGLY, THE COUNCIL DENIED THE UNION'S
PETITION FOR REVIEW.
DECEMBER 15, 1978
MR. LAWRENCE C. CUSHING
PRESIDENT AND EXECUTIVE DIRECTOR
NATIONAL ASSOCIATION OF AIR TRAFFIC
SPECIALISTS
SUITE 415, WHEATON PLAZA NORTH
WHEATON, MARYLAND 20902
RE: DEPARTMENT OF TRANSPORTATION, FEDERAL
AVIATION ADMINISTRATION, A/SLMR NO. 1073
FLRC NO. 78A-86
DEAR MR. CUSHING:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
IN THIS CASE, AS FOUND BY THE ASSISTANT SECRETARY, THE NATIONAL
ASSOCIATION OF AIR TRAFFIC SPECIALISTS (THE UNION) HOLDS NATIONAL
EXCLUSIVE RECOGNITION FOR A UNIT OF AIR TRAFFIC CONTROL SPECIALISTS
EMPLOYED IN OVER 300 FLIGHT SERVICE STATIONS OF THE DEPARTMENT OF
TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION (THE AGENCY). THE UNION
FILED AN UNFAIR LABOR PRACTICE COMPLAINT ALLEGING THAT THE AGENCY
VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY FAILING TO CONSULT,
CONFER OR NEGOTIATE WITH CERTAIN UNION-DESIGNATED FACILITY
REPRESENTATIVES (FACREPS). IN THIS REGARD, THE UNION CONTENDED THAT,
UNDER THE TERMS OF THE PARTIES' NEGOTIATED AGREEMENT, IT HAD THE RIGHT
TO DESIGNATE A FACILITY REPRESENTATIVE AT EACH FLIGHT SERVICE STATION.
THE AGENCY TOOK THE POSITION, HOWEVER, THAT IT HAD NO CONTRACTUAL
OBLIGATION TO CONSULT WITH FACREPS WHO WERE NOT EMPLOYED AT THE
PARTICULAR FACILITY TO WHICH THEY HAD BEEN DESIGNATED. THE ASSISTANT
SECRETARY FOUND, IN PERTINENT PART, THAT SECTION 19(D) OF THE ORDER
PRECLUDED FURTHER PROCESSING OF THE INSTANT COMPLAINT AND ORDERED THAT
IT BE DISMISSED. IN SO CONCLUDING, THE ASSISTANT SECRETARY STATED:
THE RECORD REVEALS THAT SEVERAL DAYS PRIOR TO THE FILING OF THE
PRE-COMPLAINT CHARGE IN
THIS MATTER THE (UNION'S) CENTRAL REGION DIRECTOR FILED A CONTRACTUAL
GRIEVANCE WITH THE
(AGENCY'S) CENTRAL REGION DIRECTOR REGARDING THE LATTER'S REFUSAL TO
CONSULT WITH A UNIT
EMPLOYEE WHO HAD BEEN DESIGNATED AS THE FACILITY REPRESENTATIVE AT
FLIGHT SERVICE STATIONS AT
WHICH HE WAS NOT EMPLOYED. THE GRIEVANCE WAS DENIED ON BOTH
PROCEDURAL GROUNDS AND ON ITS
MERITS. THEREAFTER, THE (UNION) REQUESTED ARBITRATION. THE (AGENCY)
REPLIED THAT AS THE
PRE-COMPLAINT CHARGE RAISED THE SAME ISSUE, THE (UNION) SHOULD
INDICATE WHICH PROCEDURE IT
WISHED TO PURSUE. THE (UNION) TOOK THE POSITION THAT AS THE
GRIEVANCE PRESENTED A "REGIONAL
ISSUE" WHILE THE UNFAIR LABOR PRACTICE CHARGE RAISED A "NATIONAL
ISSUE," IT WAS NOT ESTOPPED
FROM PURSUING BOTH ACTIONS. HOWEVER, IT DECIDED TO DEFER ITS
ARBITRATION REQUEST PENDING THE
DISPOSITION OF THE UNFAIR LABOR PRACTICE CHARGE.
IN MY VIEW, AS THE ISSUE RAISED IN THE GRIEVANCE WAS THE SAME AS THAT
RAISED IN THE UNFAIR
LABOR PRACTICE CHARGE, I.E., THE ALLEGED FAILURE TO CONSULT, CONFER
OR NEGOTIATE WITH CERTAIN
OF THE (UNION'S) FACILITY REPRESENTATIVES, AND AS THE (UNION'S)
ACTIONS INDICATED THAT IT
ACTIVELY PURSUED THE GRIEVANCE, EVEN TO THE POINT OF REQUESTING
ARBITRATION, I FIND THAT
(S)ECTION 19(D) OF THE ORDER PRECLUDES FURTHER PROCESSING OF THE
COMPLAINT AND SHALL ORDER
THAT IT BE DISMISSED ON THIS BASIS. WITH RESPECT TO THE (UNION'S)
CONTENTION THAT THE
GRIEVANCE RAISED A "REGIONAL ISSUE" WHILE THE CHARGE DEALT WITH A
"NATIONAL ISSUE," IT WAS
NOTED THAT THE ISSUES RAISED IN BOTH FORUMS ARE IDENTICAL AND, AS THE
PARTIES ARE OPERATING
UNDER A NATIONWIDE AGREEMENT, ANY RESOLUTION OF THE GRIEVANCE WOULD
BE APPLICABLE TO THE
NATIONWIDE UNIT.
IN YOUR PETITION FOR REVIEW ON BEHALF OF THE UNION, YOU ALLEGE THAT
THE ASSISTANT SECRETARY'S DECISION PRESENTS A MAJOR POLICY ISSUE IN THAT
IT IS INCONSISTENT WITH THE PURPOSES AND POLICIES OF THE ORDER. IN THIS
REGARD, YOU CONTEND, IN SUMMARY, THAT THE "ISSUE IN THE INSTANT CASE HAD
NEITHER BEEN RAISED UNDER ANY RECOGNIZED GRIEVANCE PROCEDURE AGREED TO
BY THE PARTIES NOR TREATED ON ITS MERITS." YOU FURTHER CONTEND THAT THE
UNION ORIGINALLY MAY HAVE HAD TWO AVENUES (A FACILITY OR NATIONAL
GRIEVANCE ON ONE HAND AND AN UNFAIR LABOR PRACTICE COMPLAINT ON THE
OTHER), BUT THE UNION ONLY AVAILED ITSELF OF ONE. THEREFORE, YOU ASSERT
THAT THE ASSISTANT SECRETARY HAS DISMISSED THE COMPLAINT IN A MANNER
INCONSISTENT WITH THE PURPOSES OF THE ORDER.
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 NEITHER ALLEGE, NOR DOES IT APPEAR, THAT HIS DECISION IS
ARBITRARY AND CAPRICIOUS.
AS TO YOUR ALLEGATIONS THAT THE ASSISTANT SECRETARY'S DECISION
PRESENTS A MAJOR POLICY ISSUE, IN THE COUNCIL'S VIEW, NO BASIS FOR
REVIEW IS PRESENTED. THUS, YOUR ASSERTIONS CONSTITUTE MERE DISAGREEMENT
WITH THE ASSISTANT SECRETARY'S FINDING THAT THE ISSUES RAISED IN THE
GRIEVANCE WERE THE SAME AS THOSE RAISED IN THE UNFAIR LABOR PRACTICE
CHARGE, AND THAT THE UNION'S ACTIONS INDICATED THAT IT ACTIVELY PURSUED
THE GRIEVANCE; THEREFORE YOUR ASSERTIONS PRESENT NO MAJOR POLICY ISSUE
WARRANTING COUNCIL REVIEW. MOREOVER, YOUR APPEAL NEITHER ALLEGES NOR
DOES IT APPEAR THAT THE ASSISTANT SECRETARY ACTED WITHOUT REASONABLE
JUSTIFICATION IN REACHING HIS DECISION.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT PRESENT ANY MAJOR
POLICY ISSUES AND YOU NEITHER ALLEGE, NOR DOES IT APPEAR, THAT HIS
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. ACCORDINGLY, YOUR PETITION FOR REVIEW IS HEREBY DENIED.
BY THE COUNCIL.
SINCERELY,
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
CC: A/SLMR
LABOR
R. B. THOMAN
FAA
6 FLRC 932; FLRC NO. 78A-89; DECEMBER 13, 1978.
(SYNOPSIS) FLRC NO. 78A-89
LAKE CENTRAL REGION, BUREAU OF OUTDOOR RECREATION, DEPARTMENT OF THE
INTERIOR, FEDERAL BUILDING, ANN ARBOR, MICHIGAN, A/SLMR NO. 1032. THE
ASSISTANT SECRETARY, UPON A REPRESENTATION PETITION FILED BY THE UNION
(AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO), CONCLUDED THAT
THE SECRETARIES TO TWO OF THE ACTIVITY'S ASSISTANT REGIONAL DIRECTORS
AND AN ADMINISTRATIVE TECHNICIAN SHOULD BE INCLUDED IN THE UNIT FOUND
APPROPRIATE. THE AGENCY APPEALED TO THE COUNCIL, CONTENDING THAT THE
ASSISTANT SECRETARY'S DECISION WAS ARBITRARY AND CAPRICIOUS AND
PRESENTED MAJOR POLICY ISSUES.
COUNCIL ACTION (DECEMBER 13, 1978). THE COUNCIL HELD THAT THE
UNION'S PETITION FOR REVIEW DID NOT MEET THE REQUIREMENTS OF SECTION
2411.12 OF THE COUNCIL'S RULES OF PROCEDURE; THAT IS, THE DECISION OF
THE ASSISTANT SECRETARY DID NOT APPEAR ARBITRARY AND CAPRICIOUS OR
PRESENT ANY MAJOR POLICY ISSUE. ACCORDINGLY, THE COUNCIL DENIED THE
UNION'S PETITION FOR REVIEW.
DECEMBER 13, 1978
MR. GERALD J. RACHELSON
LABOR RELATION SPECIALIST
PERSONNEL MANAGEMENT DIVISION
DEPARTMENT OF THE INTERIOR
WASHINGTON, D.C. 20240
RE: LAKE CENTRAL REGION, BUREAU OF OUTDOOR
RECREATION, DEPARTMENT OF THE INTERIOR,
FEDERAL BUILDING, ANN ARBOR, MICHIGAN
A/SLMR NO. 1032, FLRC NO. 78A-89
DEAR MR. RACHELSON:
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.
IN THIS CASE, THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO (THE UNION) SOUGHT AN ELECTION IN A SUIT OF ALL EMPLOYEES OF THE
LAKE CENTRAL REGION, BUREAU OF OUTDOOR RECREATION, DEPARTMENT OF THE
INTERIOR (THE ACTIVITY), WHICH THE PARTIES STIPULATED AND THE ASSISTANT
SECRETARY FOUND WAS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION. HOWEVER, AS RELEVANT HEREIN, THE ACTIVITY AND THE UNION
WERE IN DISPUTE AS TO WHETHER THE SECRETARIES TO THE TWO ASSISTANT
REGIONAL DIRECTORS AND AN ADMINISTRATIVE TECHNICIAN SHOULD BE EXCLUDED
FROM THE UNIT, THE ACTIVITY CONTENDING THAT THEY SHOULD BE EXCLUDED AND
THE UNION CONTENDING THAT THEY SHOULD BE INCLUDED. THE ASSISTANT
SECRETARY CONCLUDED THAT THE SECRETARIES TO THE TWO ASSISTANT REGIONAL
DIRECTORS SHOULD BE INCLUDED IN THE UNIT. IN THIS REGARD HE STATED:
UNDER THE PARTICULAR CIRCUMSTANCES OF THIS CASE, I FIND THAT THE
EVIDENCE REGARDING THE
CURRENT DUTIES OF THE SECRETARIES IN QUESTION IS INSUFFICIENT TO
ESTABLISH THAT THEY PRESENTLY
ACT IN A CONFIDENTIAL CAPACITY TO PERSONS WHO FORMULATE AND
EFFECTUATE MANAGEMENT POLICIES FOR
THE ACTIVITY IN THE FIELD OF LABOR RELATIONS. IN MY VIEW, THEIR
DESIGNATION AS PART OF THE
MANAGEMENT TEAM ON THE DAY BEFORE THE HEARING AND THE AMENDMENT OF
THEIR POSITION DESCRIPTION
BY THE ACTIVITY (ON THE DAY OF THE HEARING) AMOUNTS ONLY TO
SPECULATION AS TO THE SCOPE OF
THEIR FUTURE DUTIES. MOREOVER, THE EVIDENCE IS INSUFFICIENT TO
ESTABLISH THAT THEIR INCLUSION
IN THE UNIT WOULD WORK A HARDSHIP ON THE ACTIVITY WITH RESPECT TO THE
TYPING AND COORDINATION
OF LABOR RELATIONS MATTERS, GIVEN THE PARTIES' AGREEMENT AS TO THE
EXCLUSION OF THE REGIONAL
DIRECTOR'S SECRETARY FROM THE UNIT AS A CONFIDENTIAL EMPLOYEE.
HE FURTHER CONCLUDED, CONTRARY TO THE ACTIVITY'S CONTENTIONS, THAT
THE ADMINISTRATIVE TECHNICIAN SHOULD NOT BE EXCLUDED FROM THE UNIT
EITHER AS A CONFIDENTIAL EMPLOYEE OR AS AN EMPLOYEE ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY. THUS, IN THIS
REGARD HE STATED:
(I) FIND THAT THE EVIDENCE REGARDING THE CURRENT DUTIES OF THE
EMPLOYEE IN QUESTION IS
INSUFFICIENT TO ESTABLISH THAT SHE SERVES IN A CONFIDENTIAL CAPACITY
TO A PERSON ENGAGED IN
THE FIELD OF LABOR RELATIONS. IN THIS REGARD, . . . I VIEW HER
RECENT DESIGNATION AS PART OF
THE "MANAGEMENT TEAM" (ON THE DAY BEFORE THE HEARING) AND THE
AMENDMENT TO HER POSITION
DESCRIPTION (ON THE DAY OF THE HEARING) TO BE SPECULATIVE RATHER THAN
PROBATIVE WITH RESPECT
TO AN APPRAISAL OF HER CURRENT DUTIES. ALSO, THE RECORD DOES NOT
ESTABLISH THAT THE EMPLOYEE
IN QUESTION IS ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL
CAPACITY. THUS, THE RECORD REVEALS THAT IN MAINTAINING THE LOCAL
PERSONNEL AND ADMINISTRATIVE
FILES AND IN TYPING PERSONNEL ACTIONS, THE PERFORMANCE OF HER DUTIES
IS CLERICAL IN NATURE AND
REQUIRES LITTLE INDEPENDENT JUDGMENT ON HER PART.
ACCORDINGLY, THE ASSISTANT SECRETARY INCLUDED THE DISPUTED EMPLOYEES
IN THE UNIT FOUND APPROPRIATE AND DIRECTED AN ELECTION THEREIN. (THE
UNION WAS THEREAFTER CERTIFIED AS EXCLUSIVE REPRESENTATIVE FOLLOWING A
SECRET BALLOT ELECTION.)
IN YOUR PETITION FOR REVIEW ON BEHALF OF THE ACTIVITY, YOU ALLEGE
THAT THE ASSISTANT SECRETARY ACTED ARBITRARILY AND CAPRICIOUSLY BY
IGNORING, MISSTATING, AND FAILING TO UNDERSTAND EVIDENCE IN THE RECORD;
BY "FAILING TO REALIZE A CONFLICT OF POSITION"; AND BY "PREJUDICIALLY
PRECLUDING THE ACTIVITY FROM PRESENTING EVIDENCE AS TO A CONFLICT OF
POSITION." YOU FURTHER ALLEGE, IN SUMMARY, THAT THE ASSISTANT
SECRETARY'S DECISION RAISES MAJOR POLICY ISSUES AS TO (1) "WHAT
CONSTITUTES (MANAGEMENT'S) LABOR RELATIONS RESPONSIBILITIES AS IT
PERTAINS TO A CONFIDENTIAL EMPLOYEE WHEN THE UNION IS ORGANIZING BUT NOT
PRESENTLY RECOGNIZED," CONTENDING IN ESSENCE THAT IT IS IMPROPERLY
RESTRICTIVE TO REQUIRE THE EXISTENCE OF AN INCUMBENT UNION AND A
NEGOTIATED AGREEMENT BEFORE AN INDIVIDUAL MAY QUALIFY AS A CONFIDENTIAL
EMPLOYEE; (2) "WHAT CONSTITUTES . . . PERFORMING (F)EDERAL PERSONNEL
WORK IN OTHER THAN A PURELY CLERICAL CAPACITY"; (3) "(D)OES THE
ASSISTANT SECRETARY (HAVE THE AUTHORITY TO) DETERMINE HOW OPERATIONS
WILL BE CONDUCTED OR (TO) MAKE DECISIONS WITHIN THE FRAMEWORK OF
MANAGEMENT OPERATIONAL DECISIONS," CONTENDING IN EFFECT THAT THE
ASSISTANT SECRETARY FOR THE ENTIRE REGION, THUS REQUIRING THE ACTIVITY
TO ASSIGN ALL CONFIDENTIAL DUTIES TO THE REGIONAL DIRECTOR'S SECRETARY;
AND (4) "WHETHER MANAGEMENT HAS THE RIGHT TO DEVELOP A MANAGEMENT TEAM
AND HAVE SUCH TEAM ASSIGNMENTS RECOGNIZED BY THE ASSISTANT SECRETARY IN
A UNIT DETERMINATION CASE," CONTENDING THAT THE ASSISTANT SECRETARY
REFUSED TO RECOGNIZE MANAGEMENT'S LAWFUL RIGHT TO ORGANIZE ITSELF TO
DEAL WITH THE EXECUTIVE ORDER OBLIGATIONS.
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, THE DECISION OF THE ASSISTANT
SECRETARY DOES NOT APPEAR ARBITRARY AND CAPRICIOUS OR PRESENT ANY MAJOR
POLICY ISSUES.
WITH RESPECT TO YOUR CONTENTION THAT THE ASSISTANT SECRETARY'S
DECISION WAS ARBITRARY AND CAPRICIOUS IN HIS CONSIDERATION AND TREATMENT
OF THE EVIDENCE IN THIS CASE, IT DOES NOT APPEAR THAT THE ASSISTANT
SECRETARY ACTED WITHOUT REASONABLE JUSTIFICATION IN REACHING HIS
DECISION IN THE PARTICULAR CIRCUMSTANCES PRESENTED. RATHER, YOUR
CONTENTIONS TO THE CONTRARY CONSTITUTE NOTHING MORE THAN DISAGREEMENT
WITH THE ASSISTANT SECRETARY'S FACTUAL DETERMINATION, THAT THE
SECRETARIES AND THE ADMINISTRATIVE TECHNICIAN SHOULD BE INCLUDED IN THE
UNIT BECAUSE THE EVIDENCE WAS INSUFFICIENT TO SHOW THAT THEY MET THE
RESPECTIVE TESTS FOR EXCLUSION AS ESTABLISHED IN PREVIOUSLY PUBLISHED
DECISIONS OF THE ASSISTANT SECRETARY, AND THEREFORE PRESENT NO BASIS FOR
COUNCIL REVIEW. MOREOVER, AS TO YOUR ASSERTION THAT THE ASSISTANT
SECRETARY PREJUDICIALLY PRECLUDED THE ACTIVITY FROM PRESENTING CERTAIN
EVIDENCE, YOUR APPEAL FAILS TO SET FORTH ANY RELEVANT EVIDENCE WHICH THE
ASSISTANT SECRETARY DID NOT CONSIDER IN REACHING HIS DECISION.
AS TO YOUR FIRST ALLEGED MAJOR POLICY ISSUE, AS THE COUNCIL HAS
PREVIOUSLY STATED IN DENYING REVIEW OF SIMILAR CONTENTIONS, /1/ THE
ASSISTANT SECRETARY RELIED UPON HIS PREVIOUSLY ESTABLISHED TEST FOR
DETERMINING CONFIDENTIALLY 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, AND YOU DO NOT CONTEND THAT SUCH DEFINITION OF
"CONFIDENTIAL EMPLOYEE" IS INCONSISTENT EITHER WITH THE PURPOSE OF THE
ORDER OR WITH OTHER APPLICABLE AUTHORITY. (SEE LABOR-MANAGEMENT
RELATIONS IN THE FEDERAL SERVICE (1975), AT 30.) RATHER, YOUR APPEAL
HEREIN ESSENTIALLY TAKES ISSUE ONLY WITH THE MANNER IN WHICH THE
ASSISTANT SECRETARY APPLIED THE DEFINITION TO THE FACTS OF THIS CASE,
AND THEREFORE DOES NOT RAISE A MAJOR POLICY ISSUE WARRANTING REVIEW.
WITH RESPECT TO YOUR ALLEGED MAJOR POLICY ISSUE AS TO WHAT
CONSTITUTES PERFORMING FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, IN THE COUNCIL'S VIEW NO BASIS FOR REVIEW IS THEREBY
PRESENTED. THUS, YOUR CONTENTIONS IN THIS REGARD CONSTITUTE ESSENTIALLY
MERE DISAGREEMENT WITH THE ASSISTANT SECRETARY'S CONCLUSION, BASED UPON
THE RECORD EVIDENCE, THAT "IN MAINTAINING THE LOCAL PERSONNEL AND
ADMINISTRATIVE FILES AND TYPING PERSONNEL ACTIONS, THE PERFORMANCE OF
(THE ADMINISTRATIVE TECHNICIAN'S) DUTIES IS CLERICAL IN NATURE AND
REQUIRES LITTLE INDEPENDENT JUDGMENT ON HER PART." NOR ARE MAJOR POLICY
ISSUES PRESENTED, AS ALLEGED, CONCERNING THE ASSISTANT SECRETARY'S
AUTHORITY TO DETERMINE HOW MANAGEMENT'S OPERATIONS WILL BE CONDUCTED OR
WHETHER MANAGEMENT HAS THE RIGHT TO DEVELOP ITS OWN TEAM AND HAVE THE
ASSISTANT SECRETARY RECOGNIZE IT AS SUCH IN A UNIT DETERMINATION CASE.
AGAIN, BOTH OF THE FOREGOING ALLEGATIONS CONSTITUTE NO MORE THAN
DISAGREEMENT WITH THE ASSISTANT SECRETARY'S FACTUAL DETERMINATION THAT
THE ACTIVITY DESIGNATED THE EMPLOYEES IN QUESTION AS PART OF THE
MANAGEMENT TEAM AND AMENDED THEIR POSITION DESCRIPTIONS JUST BEFORE THE
HEARING HEREIN, AS WELL AS DISAGREEMENT WITH HIS CONCLUSION, BASED UPON
THE RECORD EVIDENCE, THAT THE EMPLOYEES SHOULD BE INCLUDED IN THE UNIT
FOUND APPROPRIATE.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS OR 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. ACCORDINGLY, REVIEW OF YOUR APPEAL IS HEREBY
DENIED.
BY THE COUNCIL.
SINCERELY,
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
CC: A/SLMR
LABOR
W. J. MAHANNAH
AFGE
/1/ DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY
ADMINISTRATION, BUREAU OF FIELD OPERATIONS, BOSTON REGION, DISTRICT AND
BRANCH OFFICES, A/SLMR NO. 562, 4 FLRC 209 (FLRC NO. 75A-108 (MAR. 22,
1976), REPORT NO. 101); U.S. DEPARTMENT OF AGRICULTURE RESEARCH
SERVICE, PLUM ISLAND ANIMAL DISEASE CENTER, A/SLMR NO. 428, 3 FLRC 270
(FLRC NO. 74A-73 (MAY 21, 1975), REPORT NO. 70).
6 FLRC 928; FLRC NO. 78A-127; DECEMBER 6, 1978.
(SYNOPSIS) FLRC NO. 78A-127
SOCIAL SECURITY ADMINISTRATION, BUREAU OF HEARINGS AND APPEALS,
WASHINGTON, D.C., ASSISTANT SECRETARY CASE NO. 22-08856(CA). THE
ASSISTANT SECRETARY DENIED THE REQUEST FOR REVIEW FILED BY THE UNION
(AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3615, AFL-CIO)
SEEKING REVERSAL OF THE REGIONAL ADMINISTRATOR'S DISMISSAL OF THE
UNION'S SECTION 19(A)(1) AND (6) COMPLAINT. THE UNION APPEALED TO THE
COUNCIL, CONTENDING, IN SUBSTANCE, THAT THE ASSISTANT SECRETARY'S
DECISION WAS ARBITRARY AND CAPRICIOUS.
COUNCIL ACTION (DECEMBER 6, 1978). THE COUNCIL HELD THAT THE UNION'S
PETITION FOR REVIEW DID NOT MEET THE REQUIREMENTS OF SECTION 2411.12 OF
THE COUNCIL'S RULES OF PROCEDURE; THAT IS, THE DECISION OF THE
ASSISTANT SECRETARY DID NOT APPEAR ARBITRARY AND CAPRICIOUS AND THE
UNION NEITHER ALLEGED, NOR DID IT APPEAR, THAT THE DECISION PRESENTED A
MAJOR POLICY ISSUE. ACCORDINGLY, THE COUNCIL DENIED THE UNION'S
PETITION FOR REVIEW.
DECEMBER 6, 1978
MR. RONALD D. KING, DIRECTOR
CONTRACT AND APPEALS DIVISION
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
1325 MASSACHUSETTS AVENUE, NW.
WASHINGTON, D.C. 20005
RE: SOCIAL SECURITY ADMINISTRATION, BUREAU
OF HEARINGS AND APPEALS, WASHINGTON, D.C.,
ASSISTANT SECRETARY CASE NO. 22-08856(CA),
FLRC NO. 78A-127
DEAR MR. KING:
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 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
3615, AFL-CIO (THE UNION) FILED A COMPLAINT AGAINST THE SOCIAL SECURITY
ADMINISTRATION, BUREAU OF HEARINGS AND APPEALS, WASHINGTON, D.C. (THE
ACTIVITY) ALLEGING THAT THE ACTIVITY VIOLATED SECTION 19(A)(1) AND (6)
OF THE ORDER BY REFUSING TO NOTIFY THE UNION OF A CONFERENCE HELD BY AN
AGENCY GRIEVANCE EXAMINER TO DISCUSS THE GRIEVANCE OF AN EMPLOYEE.
ADDITIONALLY, IT WAS CLAIMED THAT THE ACTIVITY UNILATERALLY CHANGED A
PAST PRACTICE OF GRANTING OFFICIAL TIME TO UNION OBSERVERS WHO ATTEND
FORMAL MEETINGS HELD PURSUANT TO THE ACTIVITY GRIEVANCE PROCEDURE.
THE ASSISTANT SECRETARY, IN AGREEMENT WITH THE REGIONAL ADMINISTRATOR
(RA), FOUND THAT THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH A REASONABLE
BASIS FOR THE INSTANT COMPLAINT AND THAT, CONSEQUENTLY, FURTHER
PROCEEDINGS IN THE MATTER WERE UNWARRANTED. IN SO CONCLUDING, THE
ASSISTANT SECRETARY STATED:
(C)ONTRARY TO YOUR CONTENTION THAT THE (UNION) WAS NOT GIVEN NOTICE
OF THE GRIEVANCE
MEETING IN QUESTION, THE EVIDENCE INDICATES THAT NOTICE WAS INDEED
GIVEN THE (UNION'S) CHIEF
STEWARD, WHO WAS DESIGNATED BY AND REPRESENTED THE GRIEVANT HEREIN
THROUGHOUT. MOREOVER, THE
EVIDENCE ESTABLISHES THAT THE PROCEDURE WHICH GAVE RISE TO THE
MEETING IN QUESTION WAS AN
AGENCY GRIEVANCE PROCEDURE, NOT ESTABLISHED PURSUANT TO A NEGOTIATED
AGREEMENT. THUS EVEN IF
THE RESPONDENT AGENCY IMPROPERLY FAILED TO APPLY ITS OWN GRIEVANCE
PROCEDURE, SUCH A FAILURE,
STANDING ALONE, WOULD NOT AUTOMATICALLY BE VIOLATIVE OF THE ORDER.
IN THIS REGARD, IT HAS
BEEN HELD PREVIOUSLY THAT THE POLICING AND ENFORCING OF AGENCY
GRIEVANCE PROCEDURES ARE
ESSENTIALLY THE RESPONSIBILITY OF THE AGENCY INVOLVED AND OF THE U.S.
CIVIL SERVICE
COMMISSION.
ACCORDINGLY, AND "NOTING ALSO THE ABSENCE OF ANY EVIDENCE OF
DISCRIMINATORY MOTIVATION OR DISPARITY OF TREATMENT BASED ON THE
GRIEVANT'S UNION MEMBERSHIP," THE ASSISTANT SECRETARY DENIED THE UNION'S
REQUEST FOR REVIEW SEEKING REVERSAL OF THE RA'S DISMISSAL OF THE
COMPLAINT.
IN YOUR PETITION FOR REVIEW ON BEHALF OF THE UNION, YOU ALLEGE THAT:
(1) THE ASSISTANT SECRETARY ACTED ARBITRARILY AND CAPRICIOUSLY IN
REFUSING TO REMAND THIS UNFAIR LABOR PRACTICE FOR A HEARING AS IT
INVOLVED DISPUTED MATERIAL FACTS AND CONCERNED THE ACTIVITY'S FLAGRANT
AND PERSISTENT FAILURE TO GRANT OFFICIAL TIME TO A UNION OFFICER TO
ATTEND AN AGENCY GRIEVANCE AS AN OBSERVER; (2) THE ACTIVITY
INTENTIONALLY AND WILFULLY REFUSED TO FOLLOW PAST PRACTICE IN GRANTING
OFFICIAL TIME TO ELECTED UNION OFFICIALS, AND THERE WAS AN ADEQUATE
SHOWING OF ANTI-UNION ANIMUS IN THE CASE; AND (3) THERE IS A PATTERN OF
INTENTIONALLY INTERFERING WITH THE RIGHTS OF UNION OFFICERS, AND THIS
INTERFERENCE TENDS TO DISCOURAGE PARTICIPATION IN UNION ACTIVITIES.
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 ARBITRARY
AND CAPRICIOUS AND YOU NEITHER ALLEGE, NOR DOES IT APPEAR, THAT HIS
DECISION PRESENTS ANY MAJOR POLICY ISSUES.
AS TO YOUR ALLEGATION THAT THE ASSISTANT SECRETARY'S DECISION IS
ARBITRARY AND CAPRICIOUS, IT DOES NOT APPEAR THAT THE ASSISTANT
SECRETARY ACTED WITHOUT REASONABLE JUSTIFICATION IN REACHING HIS
DECISION IN THE INSTANT CASE. IN THIS REGARD, YOUR CONTENTION THAT THE
ASSISTANT SECRETARY SHOULD HAVE "REMAND(ED) THIS UNFAIR LABOR PRACTICE
FOR A HEARING AS IT INVOLVED DISPUTED MATERIAL FACTS" CONSTITUTES
ESSENTIALLY MERE DISAGREEMENT WITH THE ASSISTANT SECRETARY'S
DETERMINATION, PURSUANT TO HIS REGULATIONS, THAT NO REASONABLE BASIS FOR
THE UNION'S COMPLAINT HAS BEEN ESTABLISHED. SIMILARLY, YOUR RELATED
CONTENTIONS REGARDING THE ACTIVITY'S ANTI-UNION ANIMUS AND INTERFERENCE
WITH THE RIGHTS OF UNION OFFICERS ALSO CONSTITUTE MERE DISAGREEMENT WITH
THE ASSISTANT SECRETARY'S FINDING THAT THE EVIDENCE IS INSUFFICIENT TO
ESTABLISH A REASONABLE BASIS FOR THE COMPLAINT. IN THIS REGARD, THE
COUNCIL NOTES THAT THE ASSISTANT SECRETARY, IN DENYING THE UNION'S
REQUEST FOR REVIEW SEEKING REVERSAL OF THE RA'S DISMISSAL OF THE
COMPLAINT, ALSO FOUND "THE ABSENCE OF ANY EVIDENCE OF DISCRIMINATORY
MOTIVATION OR DISPARITY OF TREATMENT BASED ON THE GRIEVANT'S UNION
MEMBERSHIP." THUS, IN THE COUNCIL'S VIEW, YOUR CONTENTIONS IN THIS
REGARD PRESENT NO BASIS FOR COUNCIL REVIEW.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS AND YOU NEITHER ALLEGE, NOR DOES IT APPEAR, THAT HIS
DECISION PRESENTS ANY MAJOR POLICY ISSUES, 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.
SINCERELY,
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
CC: A/SLMR
LABOR
J. TONER
SSA
6 FLRC 924; FLRC NO. 78A-99; DECEMBER 6, 1978.
(SYNOPSIS) FLRC NO. 78A-99
DEPARTMENT OF THE NAVY, NAVY ACCOUNTING AND FINANCE CENTER,
WASHINGTON, D.C., ASSISTANT SECRETARY CASE NO. 22-08545(CA). THE
ASSISTANT SECRETARY, IN AGREEMENT WITH THE REGIONAL ADMINISTRATOR (RA)
AND BASED UPON THE RA'S REASONING, FOUND THAT FURTHER PROCEEDINGS WERE
UNWARRANTED ON THE SECTION 19(A)(1), (2), (4) AND (6) COMPLAINT FILED BY
THE INDIVIDUAL COMPLAINANT (CLEVELAND B. SPARROW, SR.), INASMUCH AS A
REASONABLE BASIS FOR THE COMPLAINT HAD NOT BEEN ESTABLISHED. THE
ASSISTANT SECRETARY THEREFORE DENIED MR. SPARROW'S REQUEST FOR REVIEW
SEEKING REVERSAL OF THE RA'S DISMISSAL OF THE COMPLAINT. MR. SPARROW
APPEALED TO THE COUNCIL, ALLEGING THAT THE ASSISTANT SECRETARY'S
DECISION WAS ARBITRARY AND CAPRICIOUS.
COUNCIL ACTION (DECEMBER 6, 1978). THE COUNCIL HELD THAT MR.
SPARROW'S PETITION FOR REVIEW DID NOT MEET THE REQUIREMENTS OF SECTION
2411.12 OF THE COUNCIL'S RULES OF PROCEDURE; THAT IS, THE DECISION OF
THE ASSISTANT SECRETARY DID NOT APPEAR ARBITRARY AND CAPRICIOUS, AND MR.
SPARROW NEITHER ALLEGED, NOR DID IT APPEAR, THAT THE DECISION PRESENTED
A MAJOR POLICY ISSUE. ACCORDINGLY, THE COUNCIL DENIED MR. SPARROW'S
PETITION FOR REVIEW.
DECEMBER 6, 1978
MR. CLEVELAND B. SPARROW, SR.
845 52ND STREET, NE.
WASHINGTON, D.C. 20019
RE: DEPARTMENT OF THE NAVY, NAVY ACCOUNTING
AND FINANCE CENTER, WASHINGTON, D.C.
ASSISTANT SECRETARY CASE NO. 22-08545(CA),
FLRC NO. 78A-99
DEAR MR. SPARROW:
THE COUNCIL HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION, AS SUPPLEMENTED, IN THE ABOVE-ENTITLED
CASE.
THIS CASE AROSE WHEN YOU FILED AN UNFAIR LABOR PRACTICE COMPLAINT
AGAINST THE DEPARTMENT OF THE NAVY, NAVY ACCOUNTING AND FINANCE CENTER
(THE ACTIVITY). THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT THE ACTIVITY
VIOLATED SECTION 19(A)(1), (2), (4), AND (6) OF THE ORDER (1) BY
REMOVING YOU FROM YOUR POSITION AT THE ACTIVITY BECAUSE YOU ENGAGED IN
ACTIVITY PROTECTED BY THE ORDER AND BY FAILING TO PROMPTLY AND
IMPARTIALLY DEAL WITH FIVE PRIOR UNFAIR LABOR PRACTICE CHARGES THAT YOU
FILED; (2) BY INTERFERING WITH AN ORGANIZING AND MEMBERSHIP DRIVE
CONDUCTED BY A LABOR ORGANIZATION IN WHICH YOU WERE AN OFFICER; (3) BY
FAILING TO RESPOND TO AN UNFAIR LABOR PRACTICE CHARGE; AND (4) BY
FAILING TO PROVIDE GUIDELINES FOR IMPLEMENTING THE ORDER AS REQUIRED BY
SECTION 23 OF THE ORDER.
THE REGIONAL ADMINISTRATOR (RA), FOLLOWING AN INVESTIGATION OF SUCH
ALLEGATIONS, FOUND, IN PERTINENT PART, AS TO (1) THAT THE ASSISTANT
SECRETARY WAS PRECLUDED BY SECTION 19(D) OF THE ORDER FROM CONSIDERING
WHETHER YOUR REMOVAL WAS PREDICATED ON IMPROPER CONSIDERATION OF YOUR
HAVING ENGAGED IN ACTIVITY PROTECTED BY THE ORDER, BECAUSE ISSUES
RELATED TO YOUR REMOVAL COULD PROPERLY BE RAISED UNDER AN APPEALS
PROCEDURE. WITH RESPECT TO ALLEGATION (2), THE RA FOUND THIS PORTION OF
THE COMPLAINT PROCEDURALLY DEFECTIVE UNDER SECTION 203.2 OF THE
ASSISTANT SECRETARY'S REGULATIONS BECAUSE BOTH THE PRECOMPLAINT CHARGE
AND THE INSTANT COMPLAINT WERE FILED MORE THAN 6 AND 9 MONTHS,
RESPECTIVELY, AFTER THE OCCURRENCE OF THE ALLEGED UNFAIR LABOR PRACTICE.
AS TO (3), THE RA CONCLUDED THAT A REASONABLE BASIS FOR THIS PORTION OF
THE COMPLAINT HAD NOT BEEN ESTABLISHED. FINALLY, HE CONCLUDED AS TO (4)
THAT FAILURE TO COMPLY WITH THE REQUIREMENTS OF SECTION 23 OF THE ORDER
DID NOT CONSTITUTE AN UNFAIR LABOR PRACTICE COGNIZABLE UNDER SECTION 19
OF THE ORDER.
THE ASSISTANT SECRETARY, IN AGREEMENT WITH THE RA, AND BASED ON HIS
REASONING, FOUND THAT FURTHER PROCEEDINGS WERE UNWARRANTED INASMUCH AS A
REASONABLE BASIS FOR THE COMPLAINT HAD NOT BEEN ESTABLISHED.
ACCORDINGLY, AND NOTING THAT "(A)NY REQUEST FOR DOCUMENTS WITHIN THE
EXCLUSIVE CONTROL OF THE DEPARTMENT OF THE NAVY SHOULD BE DIRECTED TO
THE PROPER MANAGEMENT OFFICIAL WITHIN THAT DEPARTMENT," HE DENIED YOUR
REQUEST FOR REVIEW SEEKING REVERSAL OF THE RA'S DISMISSAL OF THE
COMPLAINT.
IN YOUR PETITION FOR REVIEW AND SUPPLEMENT THERETO WHICH YOU FILED
WITH THE COUNCIL, YOU ALLEGE THAT THE ASSISTANT SECRETARY'S DECISION
"WAS ARBITRARY, CAPRICIOUS AND OBVIOUSLY INCONSISTENT WITH THE PURPOSE
OF (THE ORDER). IN THIS REGARD, YOU CONTEND THAT THE ASSISTANT
SECRETARY KNEW THAT THE NAVY VIOLATED THE FREEDOM OF INFORMATION ACT
(FOIA) BUT FAILED TO CORRECT THE VIOLATIONS, AND WAS "IN FLAGRANT
VIOLATIONS OF STATUTE 5. U.S.C., 556" IN THAT THE WHOLE RECORD HAS NOT
BEEN CONSIDERED. /1/ YOU FURTHER ASSERT, IN ESSENCE, THAT THE ASSISTANT
SECRETARY'S DECISION VIOLATES YOUR CONSTITUTIONAL RIGHT TO DUE PROCESS
AND TO A FULL AND FAIR HEARING. YOU ALSO CONTEND THAT THE ACTIVITY
REPEATEDLY HARASSED AND INTIMIDATED YOU IN REPRISAL FOR YOUR HAVING
"FILED A DISCRIMINATION COMPLAINT," SERVED AS "VICE-PRESIDENT OF AFGE
LOCAL #1," AND "INITIATED AN EXCLUSIVE RECOGNITION DRIVE." /2/
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, THE DECISION OF THE ASSISTANT
SECRETARY DOES NOT APPEAR ARBITRARY AND CAPRICIOUS, AND YOU NEITHER
ALLEGE, NOR DOES IT APPEAR, THAT HIS DECISION PRESENTS A MAJOR POLICY
ISSUE.
WITH RESPECT TO YOUR ALLEGATION THAT THE ASSISTANT SECRETARY'S
DECISION WAS ARBITRARY AND CAPRICIOUS, IT DOES NOT APPEAR THAT THE
ASSISTANT SECRETARY ACTED WITHOUT REASONABLE JUSTIFICATION IN FINDING
THAT NO REASONABLE BASIS HAD BEEN ESTABLISHED FOR THE COMPLAINT HEREIN.
MORE PARTICULARLY, YOUR APPEAL FAILS TO CONTAIN ANY BASIS TO SUPPORT THE
ASSERTION THAT THE ASSISTANT SECRETARY'S DECISION WAS CONTRARY TO LAW OR
DENIED YOU DUE PROCESS AND A FAIR HEARING IN THE CIRCUMSTANCES OF THIS
CASE. RATHER, SUCH CONTENTIONS CONSTITUTE ESSENTIALLY MERE DISAGREEMENT
WITH THE ASSISTANT SECRETARY'S FINDINGS, PURSUANT TO HIS REGULATIONS,
THAT FURTHER PROCEEDINGS WERE UNWARRANTED INASMUCH AS NO REASONABLE
BASIS FOR YOUR COMPLAINT HAD BEEN ESTABLISHED. SIMILARLY, YOUR
ASSERTION THAT THE ACTIVITY HARASSED AND INTIMIDATED YOU FOR EXERCISING
RIGHTS PROTECTED BY THE ORDER AGAIN CONSTITUTES NO MORE THAN
DISAGREEMENT WITH THE ASSISTANT SECRETARY'S FINDING THAT NO REASONABLE
BASIS FOR YOUR COMPLAINT HAD BEEN ESTABLISHED. FINALLY, YOU NEITHER
ASSERT, NOR DOES IT APPEAR, THAT THE ASSISTANT SECRETARY'S DECISION
PRESENTS ANY MAJOR POLICY ISSUES WARRANTING COUNCIL REVIEW.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS, AND YOU NEITHER ALLEGE, NOR DOES IT APPEAR, THAT THE
DECISION RAISES A MAJOR POLICY ISSUE, YOUR APPEAL FAILS TO MEET THE
REQUIREMENTS FOR REVIEW AS SET FORTH IN SECTION 2411.12 OF THE COUNCIL'S
RULES. ACCORDINGLY, YOUR PETITION FOR REVIEW IS HEREBY DENIED.
BY THE COUNCIL.
SINCERELY,
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
CC: A/SLMR
LABOR
H. L. ZIPPERIAN
NAVY
/1/ IN YOUR APPEAL, YOU ALSO REQUEST THAT THE SECRETARY OF DEFENSE
AND THE SECRETARY OF THE NAVY PROVIDE YOU WITH ALL DOCUMENTS CONTAINING
INFORMATION MATERIAL TO YOU IN ACCORDANCE WITH THE FOIA AND THE PRIVACY
ACT. HOWEVER, AS THE ASSISTANT SECRETARY NOTED IN HIS DENIAL OF YOUR
REQUEST FOR REVIEW OF THE RA'S DISMISSAL OF YOUR COMPLAINT, A REQUEST
FOR DOCUMENTS WITHIN THE EXCLUSIVE CONTROL OF THE DEPARTMENT OF DEFENSE
OR NAVY SHOULD BE DIRECTED TO THE PROPER MANAGEMENT OFFICIAL THEREIN.
SUCH PROCEDURES ARE PROVIDED FOR UNDER THE APPROPRIATE ACTS.
/2/ YOU ALSO ASSERT IN YOUR APPEAL THAT THE FAILURE OF AFGE'S
NATIONAL OFFICE TO PROVIDE YOU WITH EFFECTIVE UNION REPRESENTATION,
ALTHOUGH THE LOCAL APPROVED AND REQUESTED IT, CONSTITUTED FRAUD.
HOWEVER, IT DOES NOT APPEAR FROM THE DOCUMENTS FILED WITH YOUR APPEAL TO
THE COUNCIL HEREIN EITHER THAT AFGE WAS A CHARGED PARTY OR THAT SUCH
ISSUE WAS PRESENTED AS PART OF THE UNFAIR LABOR PRACTICE COMPLAINT IN
THE PROCEEDINGS BEFORE THE ASSISTANT SECRETARY. ACCORDINGLY, THIS ISSUE
PROVIDES NO BASIS FOR COUNCIL REVIEW. IN THIS REGARD, SECTION 2411.51
OF THE COUNCIL'S RULES PROVIDES, IN PERTINENT PART:
CONSISTENT WITH THE SCOPE OF REVIEW SET FORTH IN THIS PART, THE
COUNCIL WILL NOT CONSIDER
EVIDENCE OFFERED BY A PARTY, OR ANY ISSUE, WHICH WAS NOT PRESENTED IN
THE PROCEEDINGS BEFORE
THE ASSISTANT SECRETARY. . . .
6 FLRC 920; FLRC NO. 78A-90; DECEMBER 6, 1978.
(SYNOPSIS) FLRC NO. 78A-90
DEPARTMENT OF THE TREASURY, BUREAU OF ALCOHOL, TOBACCO AND FIREARMS,
MIDWEST REGION, CHICAGO, ILLINOIS, A/SLMR NO. 1070. THE ASSISTANT
SECRETARY FOUND THAT THE ACTIVITY VIOLATED SECTION 19(A)(1) AND (6) OF
THE ORDER BY FAILING TO AFFORD THE UNION AN OPPORTUNITY TO BE
REPRESENTED AT A PARTICULAR MEETING WITH A GROUP OF EMPLOYEES AT THE
REGIONAL OFFICE; AND ORDERED THAT A REMEDIAL NOTICE BE POSTED IN ALL OF
THE ACTIVITY'S FACILITIES. THE AGENCY APPEALED TO THE COUNCIL,
CONTENDING THAT THE ASSISTANT SECRETARY'S DECISION WITH RESPECT TO THE
POSTING REMEDY WAS ARBITRARY AND CAPRICIOUS AND PRESENTED A MAJOR POLICY
ISSUE. THE AGENCY ALSO REQUESTED A STAY.
COUNCIL ACTION (DECEMBER 6, 1978). THE COUNCIL HELD THAT THE
AGENCY'S PETITION FOR REVIEW DID NOT MEET THE REQUIREMENTS OF SECTION
2411.12 OF THE COUNCIL'S RULES OF PROCEDURE; THAT IS, THE DECISION OF
THE ASSISTANT SECRETARY DID NOT APPEAR ARBITRARY AND CAPRICIOUS OR
PRESENT ANY MAJOR POLICY ISSUE. ACCORDINGLY, THE COUNCIL DENIED THE
AGENCY'S PETITION FOR REVIEW. THE COUNCIL LIKEWISE DENIED THE AGENCY'S
REQUEST FOR A STAY.
DECEMBER 6, 1978
MR. MORRIS A. SIMMS
DIRECTOR OF PERSONNEL
DEPARTMENT OF THE TREASURY
WASHINGTON, D.C. 20220
RE: DEPARTMENT OF THE TREASURY, BUREAU
OF ALCOHOL, TOBACCO AND FIREARMS,
MIDWEST REGION, CHICAGO, ILLINOIS,
A/SLMR NO. 1070, FLRC NO. 78A-90
DEAR MR. SIMMS:
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, AS FOUND BY THE ASSISTANT SECRETARY, NATIONAL TREASURY
EMPLOYEES UNION AND NTEU CHAPTER 94 (THE UNION) FILED AN UNFAIR LABOR
PRACTICE COMPLAINT ALLEGING THAT THE DEPARTMENT OF THE TREASURY, BUREAU
OF ALCOHOL, TOBACCO AND FIREARMS, MIDWEST REGION, CHICAGO, ILLINOIS (THE
ACTIVITY) HAD VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY HOLDING
MEETINGS WITH A GROUP OF EMPLOYEES AT WHICH CONTEMPLATED CH CHANGES IN
PERSONNEL POLICIES AND PRACTICES AND OTHER MATTERS AFFECTING WORKING
CONDITIONS WERE DISCUSSED, THEREBY BYPASSING THE UNION. THE
ADMINISTRATIVE LAW JUDGE (ALJ) FOUND THAT AT ONE MEETING AT THE MIDWEST
REGIONAL OFFICE IN CHICAGO THE MATTER OF THE IMPACT OF THE PROPOSED
CHANGES ON WORKING CONDITIONS OR PERSONNEL PRACTICES AND POLICIES DID
ARISE, AND THE ACTIVITY'S FAILURE TO GIVE THE UNION AN OPPORTUNITY TO BE
REPRESENTED VIOLATED THE UNION'S RIGHT UNDER SECTION 10(E) OF THE ORDER
IN VIOLATION OF SECTION 19(A)(6) AND, DERIVATIVELY, OF THE EMPLOYEES'
RIGHT UNDER SECTION 19(A)(1). WITH RESPECT TO THE POSTING OF A REMEDIAL
NOTICE TO EMPLOYEES, THE ALJ RECOMMENDED THAT THE POSTING BE ORDERED AT
THE MIDWEST REGIONAL OFFICE OF THE BUREAU IN CHICAGO. THE ASSISTANT
SECRETARY ADOPTED THE ALJ'S FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS,
BUT STATED THE FOLLOWING WITH RESPECT TO POSTING:
UNDER THE CIRCUMSTANCES HEREIN, I HAVE ORDERED THAT THE REMEDIAL
NOTICES TO EMPLOYEES BE
POSTED AT ALL OF THE (ACTIVITY'S) FACILITIES IN THE MIDWEST REGION.
THE VIOLATION TO BE
REMEDIED IN THIS MATTER INVOLVES AN IMPROPER FAILURE BY THE
(ACTIVITY) TO NOTIFY THE CHAPTER
PRESIDENT OF THE (UNION), NTEU CHAPTER 94, OF A FORMAL DISCUSSION AND
AFFORD THE LATTER AN
OPPORTUNITY TO BE REPRESENTED AT SUCH DISCUSSION. IN VIEW OF THE
NATURE OF THE VIOLATION AND
THE ADMINISTRATIVE LAW JUDGE'S UNDISPUTED FINDING THAT NTEU CHAPTER
94 ACTS FOR THE NTEU IN
THE MIDWEST REGION OF THE BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, I
FIND THAT A POSTING
COEXTENSIVE WITH NTEU CHAPTER 94'S JURISDICTION IN THE MIDWEST REGION
IS WARRANTED.
IN YOUR PETITION FOR REVIEW ON BEHALF OF THE AGENCY, YOU DO NOT TAKE
EXCEPTION TO THE ASSISTANT SECRETARY'S FINDING THAT THE AGENCY COMMITTED
AN UNFAIR LABOR PRACTICE, BUT RATHER YOU ASSERT THAT THE POSTING REMEDY
ORDERED BY THE ASSISTANT SECRETARY IS ARBITRARY AND CAPRICIOUS AND
RAISES A MAJOR POLICY ISSUE. SPECIFICALLY, YOU ALLEGE THAT THE
ASSISTANT SECRETARY'S DECISION WITH RESPECT TO POSTING WAS ARBITRARY AND
CAPRICIOUS BECAUSE IT CONTRADICTED, WITHOUT REASON, PRIOR DETERMINATIONS
RENDERED BY THE ASSISTANT SECRETARY UNDER SIMILAR CIRCUMSTANCES AND
BECAUSE IT LACKED A RATIONAL CONNECTION TO THE FACTS. YOU FURTHER
ALLEGE THAT THE DECISION RAISES A MAJOR POLICY ISSUE AS TO "(W)HETHER
THE SCOPE OF THE REMEDIAL POSTING IN AN UNFAIR LABOR PRACTICE SHOULD BE
DEFINED BY THE INTERNAL ORGANIZATION OF THE COMPLAINANT OR THE SITUS OF
THE WRONG."
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 CAPRICIOUS
OR RAISE ANY MAJOR POLICY ISSUES.
WITH RESPECT TO YOUR ALLEGATION THAT THE ASSISTANT SECRETARY'S
DECISION IS ARBITRARY AND CAPRICIOUS, IT DOES NOT APPEAR THAT THE
ASSISTANT SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS, IT DOES NOT
APPEAR THAT THE ASSISTANT SECRETARY ACTED WITHOUT REASONABLE
JUSTIFICATION IN HIS FORMULATION OF A REMEDIAL ORDER IN THE
CIRCUMSTANCES OF THIS CASE. IN THIS REGARD, YOUR APPEAL FAILS TO
ESTABLISH THAT THERE IS ANY CLEAR, UNEXPLAINED INCONSISTENCY BETWEEN
THIS DECISION AND PREVIOUSLY PUBLISHED DECISIONS OF THE ASSISTANT
SECRETARY. MOREOVER, YOUR ASSERTION CONSTITUTES, IN ESSENCE, MERE
DISAGREEMENT WITH THE ASSISTANT SECRETARY'S DETERMINATION THAT "(I)N
VIEW OF THE NATURE OF THE VIOLATION AND THE ADMINISTRATIVE LAW JUDGE'S
UNDISPUTED FINDING THAT NTEU CHAPTER 94 ACTS FOR THE NTEU IN THE MIDWEST
REGION OF THE BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, I FIND THAT A
POSTING COEXTENSIVE WITH NTEU CHAPTER 94'S JURISDICTION IN THE MIDWEST
REGION IS WARRANTED." AS TO THE ALLEGED MAJOR POLICY ISSUE REGARDING THE
SCOPE OF A REMEDIAL POSTING IN AN UNFAIR LABOR PRACTICE, IN THE
COUNCIL'S OPINION NO MAJOR POLICY ISSUE IS PRESENTED WARRANTING REVIEW.
IN THIS REGARD, AS THE COUNCIL HAS CONSISTENTLY STATED, SECTION 6(B) OF
THE ORDER CONFERS CONSIDERABLE DISCRETION ON THE ASSISTANT SECRETARY,
AND HIS REMEDIAL DIRECTIVES THEREFORE WILL NOT BE REVIEWED BY THE
COUNCIL UNLESS IT APPEARS THAT THE ASSISTANT SECRETARY HAS EXCEEDED THE
SCOPE OF HIS AUTHORITY UNDER SECTION 6(B) OR HAS ACTED ARBITRARILY AND
CAPRICIOUSLY OR IN A MANNER INCONSISTENT WITH THE PURPOSES AND POLICIES
OF THE ORDER. /1/ YOUR APPEAL HEREIN FAILS TO CONTAIN ANY SUPPORT FOR
THE FOREGOING CONTENTIONS BUT RATHER, AS PREVIOUSLY STATED, CONSTITUTES
MERE DISAGREEMENT WITH THE ASSISTANT SECRETARY'S DETERMINATION THAT, IN
VIEW OF THE NATURE OF THE VIOLATION HEREIN, A POSTING COEXTENSIVE WITH
NTEU CHAPTER 94'S JURISDICTION WAS WARRANTED.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS OR 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. YOUR REQUEST FOR A STAY OF THE ASSISTANT SECRETARY'S
DECISION AND ORDER IS LIKEWISE DENIED.
BY THE COUNCIL.
SINCERELY,
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
CC: A/SLMR
LABOR
A. HERSH
NTEU
/1/ SEE, E.G., DEPARTMENT OF THE AIR FORCE, OFFUTT AIR FORCE BASE,
A/SLMR NO. 784, FLRC NO. 77A-22 (JULY 29, 1977), REPORT NO. 132; U.S.
ARMY CORPS OF ENGINEERS, PHILADELPHIA DISTRICT, A/SLMR NO. 673, FLRC NO.
76A-94 (FEB. 25, 1977), REPORT NO. 122, AND CASES CITED THEREIN.
6 FLRC 916; FLRC NO. 78A-84; DECEMBER 6, 1978.
(SYNOPSIS) FLRC NO. 78A-84
DEPARTMENT OF THE ARMY, UNITED STATES ARMY HEALTH SERVICES COMMAND,
KENNER ARMY HOSPITAL, DGSC HEALTH CLINIC, RICHMOND, VIRGINIA, A/SLMR NO.
1058. THE ASSISTANT SECRETARY DISMISSED THE REPRESENTATION PETITION
FILED BY THE UNION (LOCAL 2047, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO), HAVING FOUND THAT THE PROPOSED UNIT OF THREE
UNREPRESENTED EMPLOYEES AT THE ACTIVITY WAS NOT APPROPRIATE FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION. THE UNION APPEALED TO THE COUNCIL,
CONTENDING, IN SUBSTANCE, THAT THE ASSISTANT SECRETARY'S DECISION WAS
ARBITRARY AND CAPRICIOUS AND PRESENTED A MAJOR POLICY ISSUE.
COUNCIL ACTION (DECEMBER 6, 1978). THE COUNCIL HELD THAT THE UNION'S
PETITION FOR REVIEW DID NOT MEET THE REQUIREMENTS OF SECTION 2411.12 OF
THE COUNCIL'S RULES OF PROCEDURE; THAT IS, THE DECISION OF THE
ASSISTANT SECRETARY DID NOT APPEAR ARBITRARY AND CAPRICIOUS OR PRESENT
ANY MAJOR POLICY ISSUE. ACCORDINGLY, THE COUNCIL DENIED THE UNION'S
PETITION FOR REVIEW.
DECEMBER 6, 1978
MR. SEATON B. NEAL, JR.
PRESIDENT, LOCAL 2047
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
P.O. BOX 3742
RICHMOND, VIRGINIA 23234
RE: DEPARTMENT OF THE ARMY, UNITED STATES
ARMY HEALTH SERVICES COMMAND, KENNER
ARMY HOSPITAL, DGSC HEALTH CLINIC,
RICHMOND, VIRGINIA, A/SLMR NO. 1058,
FLRC NO. 78A-84
DEAR MR. NEAL:
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, AS FOUND BY THE ASSISTANT SECRETARY, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2047 (THE UNION) FILED A
PETITION (RO) SEEKING AN ELECTION IN A UNIT OF THREE (3) NONPROFESSIONAL
EMPLOYEES ASSIGNED TO THE U.S. ARMY HEALTH CLINIC, DEFENSE GENERAL
SUPPLY CENTER (DGSC CLINIC), LOCATED IN RICHMOND, VIRGINIA. IN THE
PROCEEDINGS BEFORE THE ASSISTANT SECRETARY, THE ACTIVITY CONTENDED THAT
THE UNIT SOUGHT WAS NOT APPROPRIATE AND WOULD RESULT IN NEEDLESS
FRAGMENTATION. IT FURTHER ASSERTED THAT, BECAUSE THE DGSC CLINIC IS
SERVICED BY THE FORT LEE RESERVATION (VIRGINIA) AND IS A SATELLITE
INSTALLATION OF THE KENNER ARMY HOSPITAL WHERE ACTUAL BARGAINING
AUTHORITY RESIDES, THE EMPLOYEES IN THE PETITIONED FOR UNIT SHOULD BE
INCLUDED IN THE ESTABLISHED UNIT OF ALL NONPROFESSIONAL EMPLOYEES AT
FORT LEE, EXCLUSIVELY REPRESENTED BY AFGE LOCAL 1178. THE ASSISTANT
SECRETARY FOUND THAT SINCE 1970 AFGE LOCAL 1178 HAS REPRESENTED CERTAIN
EMPLOYEES PHYSICALLY OR ADMINISTRATIVELY ASSIGNED TO FOR LEE INCLUDING
THE MEDICAL DEPARTMENT ACTIVITY AT FORT LEE (MEDDAC), ONE DEPARTMENT OF
WHICH IS THE KENNER ARMY HOSPITAL. HE FURTHER FOUND THAT KENNER
PROVIDES MEDICAL CARE FOR ALL PERSONNEL LOCATED ON THE FORT LEE
RESERVATION AND AT CERTAIN OTHER LOCATIONS BY OPERATING NINE CLINICS,
ONE OF WHICH IS THE DGSC CLINIC LOCATED 23 MILES FROM FORT LEE; AND
THAT THE THREE EMPLOYEES IN THE PROPOSED UNIT AT THE DGSC CLINIC ARE
DIRECTED BY KENNER, RECEIVE PERSONNEL SERVICES FROM THE SAME PERSONNEL
DEPARTMENT AS ALL OTHER KENNER EMPLOYEES, AND ARE TREATED AS KENNER
EMPLOYEES IN ALL RESPECTS EXCEPT THAT THEY ARE INCLUDED IN A DIFFERENT
COMPETITIVE AREA FOR REDUCTION-IN-FORCE PURPOSES.
BASED UPON THE FOREGOING CIRCUMSTANCES, THE ASSISTANT SECRETARY
DISMISSED THE UNION'S RO PETITION, FINDING THAT THE PROPOSED UNIT WAS
NOT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. IN THIS
REGARD, HE STATED:
(I)T IS NOTED THAT WHILE THE PETITIONED FOR UNIT MAY CONTAIN ALL THE
UNREPRESENTED
NONPROFESSIONAL EMPLOYEES ADMINISTRATIVELY ASSIGNED TO KENNER, THE
RECORD DOES NOT ESTABLISH
THAT THE CLAIMED EMPLOYEES WOULD CONSTITUTE A RESIDUAL UNIT OF ALL
THE UNREPRESENTED EMPLOYEES
OF THE COMPONENTS OF THE EXCLUSIVELY RECOGNIZED UNIT CURRENTLY
REPRESENTED BY AFGE LOCAL 1178,
. . . OR THAT IT IS A RESIDUAL UNIT OF MEDDAC, FORT LEE, WHICH IS ONE
OF THE COMPONENTS OF THE
EXCLUSIVELY RECOGNIZED UNIT THAT INCLUDES KENNER. AS THE EMPLOYEES IN
THE CLAIMED UNIT SHARE
SIMILAR JOB CLASSIFICATIONS, SKILLS AND DUTIES WITH THE EMPLOYEES IN
THE EXCLUSIVELY
RECOGNIZED UNIT AT FORT LEE, AND ARE SUBJECT TO THE SAME PERSONNEL
POLICIES, PERSONNEL
PRACTICES AND LABOR RELATIONS POLICIES AS THE EMPLOYEES IN AFGE LOCAL
1178'S UNIT, ESTABLISHED
BY THE FORT LEE CIVILIAN PERSONNEL OFFICE, I FIND THAT THE PETITIONED
FOR UNIT WOULD NOT
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS BUT,
RATHER, WOULD LEAD TO
ARTIFICIAL FRAGMENTATION, AND THAT THE ESTABLISHMENT OF SUCH A UNIT
WOULD BE INCONSISTENT WITH
THE OBJECTIVE AS EXPRESSED BY THE FEDERAL LABOR RELATIONS COUNCIL OF
PROMOTING MORE
COMPREHENSIVE BARGAINING UNIT STRUCTURES IN THE FEDERAL SECTOR.
IN YOUR PETITION FOR REVIEW ON BEHALF OF THE UNION, YOU ALLEGE AS TO
THE ASSISTANT SECRETARY'S DECISION THAT ALL ELEMENTS OF THE CASE WERE
NOT CONSIDERED, THAT THE DECISION WAS ARBITRARY AND CAPRICIOUS AND THAT
THE UNION IS RAISING AS A MAJOR POLICY ISSUE:
CAN MANAGEMENT (AGENCY) OBTAIN AN ALREADY EXISTING UNIT, ESPECIALLY A
UNIT PLACED IN ITS
PRESENT POSITION DUE TO DELIBERATE ACTIONS MERELY BY FILING A
POSITION STATEMENT AFTER THE
UNION HAD FILED A PETITION AND MANAGEMENT HAD MADE NO EFFORT, PRIOR
TO THAT TIME, TO INCLUDE
THE UNIT IN QUESTION IN ITS BARGAINING UNIT?
IN THIS LATTER REGARD, YOU APPEAR TO ASSERT THAT SINCE AGENCY
MANAGEMENT HAD AT ONE TIME DELIBERATELY AGREED TO EXCLUDE ALL ACTIVITIES
OUTSIDE THE CONFINES OF THE FORT LEE RESERVATION FROM THE UNIT
EXCLUSIVELY REPRESENTED BY AFGE LOCAL 1178 AND THEREAFTER HAD NEVER
SOUGHT TO INCLUDE THE DGSC CLINIC EMPLOYEES THEREIN, IT SHOULD NOT NOW
BE PERMITTED TO OPPOSE THE INSTANT PETITION AND PREVENT SUCH EMPLOYEES
FROM BEING SEPARATELY REPRESENTED BY 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 OF PROCEDURE.
THAT IS, THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS OR PRESENT ANY MAJOR POLICY ISSUES.
THUS, AS TO YOUR ALLEGATION 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. YOUR CONTENTIONS IN THIS REGARD, INCLUDING THE CONTENTION
REGARDING THE ELEMENTS CONSIDERED, CONSTITUTE ESSENTIALLY MERE
DISAGREEMENT WITH THE ASSISTANT SECRETARY'S CONCLUSION, BASED UPON THE
ENTIRE RECORD IN THE SUBJECT CASE, THAT THE PETITIONED FOR UNIT OF THREE
EMPLOYEES IS NOT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
UNDER SECTION 10(B) OF THE ORDER, AND THEREFORE PROVIDE NO BASIS FOR
COUNCIL REVIEW. NOR, IN THE COUNCIL'S OPINION, IS A MAJOR POLICY ISSUE
PRESENTED WARRANTING REVIEW. IN THIS REGARD, YOUR APPEAL FAILS TO
CONTAIN ANY EVIDENCE THAT THE ASSISTANT SECRETARY'S DECISION WAS IN ANY
MANNER INCONSISTENT WITH APPLICABLE COUNCIL PRECEDENT FOR THE PURPOSES
AND POLICIES OF THE ORDER. /1/
ACCORDINGLY, SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR
ARBITRARY AND CAPRICIOUS OR 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.
BY THE COUNCIL.
SINCERELY,
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
CC: A/SLMR
LABOR
C. E. THOMAS
ARMY
/1/ SEE, E.G., 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. 687, 5 FLRC 631 (FLRC NO. 76A-97 (JULY 20, 1977),
REPORT NO. 131), WHEREIN THE COUNCIL STATED:
. . . IT IS IMPORTANT TO REMEMBER THAT THE ORDER REFLECTS A DUAL
POLICY: NOT ONLY TO
REDUCE EXISTING FRAGMENTATION THROUGH UNIT CONSOLIDATIONS BUT ALSO TO
PREVENT FURTHER
FRAGMENTATION THROUGH NEW APPROPRIATE UNIT DETERMINATIONS, THEREBY
PROMOTING A MORE
COMPREHENSIVE BARGAINING UNIT STRUCTURE. THE COUNCIL ACKNOWLEDGES
THAT THIS DUAL POLICY MAY
HAVE THE EFFECT IN SOME SITUATIONS OF FORESTALLING THE REPRESENTATION
OF SOME
EMPLOYEES; HOWEVER, THESE EMPLOYEES NEED NOT BE DENIED THE
OPPORTUNITY FOR REPRESENTATION
ALTOGETHER. RATHER, AS IS CUSTOMARY IN CASES SUCH AS HERE INVOLVED,
REPRESENTATION CAN BE
ACHIEVED BY EXPANDING ORGANIZATIONAL EFFORTS TO INCLUDE THOSE
EMPLOYEES WHO WOULD CONSTITUTE
AN APPROPRIATE UNIT.
6 FLRC 911; FLRC NO. 78A-20; DECEMBER 6, 1978.
OFFICE OF THE SECRETARY,
HEADQUARTERS, DEPARTMENT OF
HEALTH, EDUCATION, AND WELFARE
AND
LOCAL 41, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO
FLRC NO. 78A-20
DECISION ON APPEAL FROM ARBITRATION AWARD
(SYNOPSIS) FLRC NO. 78A-20
OFFICE OF THE SECRETARY, HEADQUARTERS, DEPARTMENT OF HEALTH,
EDUCATION, AND WELFARE AND LOCAL 41, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO (MAGGIOLO, ARBITRATOR). THE ARBITRATOR, AS PART OF
HIS AWARD, DIRECTED THE AGENCY TO GRANT THE GRIEVANT RELEASED TIME FOR
THREE TRAINING COURSES TO BE SELECTED BY HER. THE COUNCIL ACCEPTED THE
AGENCY'S PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD INSOFAR AS IT
RELATED TO THE AGENCY'S EXCEPTIONS WHICH ALLEGED THAT THE DISPUTED PART
OF THE AWARD VIOLATED APPLICABLE LAW AND APPROPRIATE REGULATION. THE
COUNCIL ALSO GRANTED THE AGENCY'S REQUEST FOR A STAY. (REPORT NO. 150)
COUNCIL ACTION (DECEMBER 6, 1978). BASED UPON AN INTERPRETATION
RENDERED BY THE CIVIL SERVICE COMMISSION IN RESPONSE TO THE COUNCIL'S
REQUEST, THE COUNCIL CONCLUDED THAT THE PORTION OF THE ARBITRATOR'S
AWARD WHICH DIRECTED THAT THE GRIEVANT BE GRANTED RELEASED TIME FOR
THREE COURSES TO BE SELECTED BY THE GRIEVANT VIOLATED APPLICABLE LAW AND
APPROPRIATE REGULATION. ACCORDINGLY, PURSUANT TO SECTION 2411.37(B) OF
ITS RULES OF PROCEDURE, THE COUNCIL MODIFIED THE ARBITRATOR'S AWARD BY
STRIKING THE PORTION THEREOF FOUND VIOLATIVE OF APPLICABLE LAW AND
APPROPRIATE REGULATION. AS SO MODIFIED, THE COUNCIL SUSTAINED THE AWARD
AND VACATED THE STAY WHICH IT HAD PREVIOUSLY GRANTED.
BACKGROUND OF CASE
ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER AROSE WHEN
THE OFFICE OF THE SECRETARY, HEADQUARTERS, DEPARTMENT OF HEALTH,
EDUCATION, AND WELFARE (THE AGENCY) REFUSED TO PERMIT THE GRIEVANT TO
TAKE FURTHER TRAINING COURSES ON AGENCY TIME BECAUSE IT DETERMINED THAT
AS A RESULT OF COURSES AND TRAINING TAKEN UNDER THE AGENCY'S UPWARD
MOBILITY PROGRAM, THE GRIEVANT HAD MET CIVIL SERVICE COMMISSION
QUALIFICATION STANDARDS FOR HER TARGETED POSITION OF OPERATING
ACCOUNTANT GS-510-7. THEREAFTER THE UNION FILED A GRIEVANCE ON BEHALF
OF THE GRIEVANT ALLEGING THAT THE AGENCY HAD VIOLATED AGENCY
"REGULATIONS AND (THE) NEGOTIATED AGREEMENT CONCERNING CAREER
DEVELOPMENT AND TRAINING AND LEAVE AUTHORIZATION." THE GRIEVANCE
ULTIMATELY WENT TO ARBITRATION, WHERE THE GRIEVANT ALLEGED THAT THE
AGENCY'S DETERMINATION THAT SHE WAS QUALIFIED FOR HER TARGETED POSITION
WAS ERRONEOUS AS EVIDENCED BY THE FACT THAT HER APPLICATION FOR THE
POSITION HAD BEEN REJECTED BY OTHER AGENCIES ON THE BASIS THAT SHE WAS
NOT QUALIFIED.
THE ARBITRATOR'S AWARD
THE ARBITRATOR, INSOFAR AS IS PERTINENT HEREIN, MADE THE FOLLOWING
AWARD: /1/
4. INSOFAR AS THE GRIEVANCE RELATES TO THE DENIAL OF THE BENEFITS OF
THE UP(WARD) MOBILITY
PROGRAM:
A. THE AGENCY SHOULD SEEK A WRITTEN OPINION FROM THE CIVIL SERVICE
COMMISSION AS TO
WHETHER THE GRIEVANT IS QUALIFIED FOR THE 5.10-5.25 ACCOUNTING
POSITIONS.
B. PENDING SUCH OPINION, THE GRIEVANT SHOULD BE RESTORED TO THE
UP(WARD) MOBILITY PROGRAM
AND BE GRANTED RELEASED TIME FOR THREE COURSES SELECTED BY HER FOR
THE UPCOMING SEMESTER.
AGENCY'S APPEAL TO THE COUNCIL
THE AGENCY FILED A PETITION FOR REVIEW OF PART 4B 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 OF THE
ARBITRATOR'S AWARD INSOFAR AS IT RELATED TO THE AGENCY'S EXCEPTIONS
WHICH ALLEGED THAT PART 4B OF THE AWARD VIOLATIONS APPLICABLE LAW AND
APPROPRIATE REGULATION. /2/ THE PARTIES FILED BRIEFS ON THE MERITS.
/3/
OPINION
SECTION 2411.37(A) OF THE COUNCIL'S RULES OF PROCEDURE PROVIDES:
(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 AGENCY'S EXCEPTIONS WHICH ALLEGED
THAT PART 4B OF THE AWARD VIOLATES APPLICABLE LAW AND APPROPRIATE
REGULATION. SINCE THE CIVIL SERVICE COMMISSION IS AUTHORIZED TO ISSUE
REGULATIONS PERTAINING TO THE MATTERS INVOLVED IN THIS APPEAL, THE
COUNCIL REQUESTED FROM THE COMMISSION AN INTERPRETATION OF THE RELEVANT
COMMISSION REGULATIONS AS THEY RELATE TO PART 4B OF THE ARBITRATOR'S
AWARD IN THIS CASE.
THE COMMISSION REPLIED IN RELEVANT PART AS FOLLOWS:
IN THIS CASE, THE AGENCY MADE A DETERMINATION THAT AS A RESULT OF JOB
TRAINING AND COURSES
TAKEN UNDER THE AGENCY'S UPWARD MOBILITY PROGRAM, THE GRIEVANT HAD
MET THE QUALIFICATION
REQUIREMENTS OF HER TARGETED POSITION OF ACCOUNTANT, GS-510-7.
CONSEQUENTLY, THE AGENCY
REFUSED THE GRIEVANT'S REQUEST TO TAKE FURTHER COURSES ON OFFICIAL
GOVERNMENT TIME. THE
GRIEVANT CONTESTED THE AGENCY'S DETERMINATION THAT SHE MET
QUALIFICATION STANDARDS, CITING AS
PROOF THE FINDINGS OF TWO AGENCIES THAT SHE WAS NOT QUALIFIED FOR
SPECIFIC POSITIONS. IN PART
OF HIS AWARD THAT RELATES TO THE DENIAL OF THE BENEFITS OF THE UPWARD
MOBILITY PROGRAM THE
ARBITRATOR CONCLUDED THAT:
A. THE AGENCY SHOULD SEEK A WRITTEN OPINION FROM THE CIVIL SERVICE
COMMISSION AS TO
WHETHER THE GRIEVANT IS QUALIFIED FOR THE 5.10-5.25 (SIC) ACCOUNTING
POSITIONS, AND THAT
B. PENDING SUCH OPINION, THE GRIEVANT SHOULD BE RESTORED TO THE
UPWARD MOBILITY PROGRAM
AND BE GRANTED RELEASED TIME FOR THREE COURSES SELECTED BY HER FOR
THE UPCOMING SEMESTER.
IN RESPONSE TO THE AGENCY'S REQUEST FOR AN OPINION, THE CIVIL SERVICE
COMMISSION DETERMINED
ON FEBRUARY 16, 1978, THAT AS OF JULY 28, 2977, THE GRIEVANT FULLY
MET THE QUALIFICATIONS
STANDARDS FOR THE POSITION OF ACCOUNTANT, GS-510-7. YOU ASKED US
WHETHER THAT PORTION OF THE
ARBITRATOR'S WARD WHICH DIRECTS THE ACTIVITY TO RESTORE THE GRIEVANT
TO THE UPWARD MOBILITY
PROGRAM CONFLICTS WITH APPLICABLE LAW AND REGULATIONS, AS ALLEGED BY
THE AGENCY IN FILING
EXCEPTIONS TO THE AWARD.
TRAINING OF GOVERNMENT EMPLOYEES IS AUTHORIZED BY STATUTE. CHAPTER
41 OF TITLE 5, UNITED
STATES CODE, WHICH EMBODIES THE GOVERNMENT EMPLOYEES TRAINING ACT OF
1958 (72 STAT. 327), IS
THE BASIC AUTHORIZATION FOR EMPLOYEE TRAINING THROUGHOUT MOST OF THE
GOVERNMENT. EQUAL
EMPLOYMENT OPPORTUNITY ACT OF 1972 (86 STAT. 103; PUBLIC LAW
92-261), REQUIRES THE
ESTABLISHMENT OF TRAINING AND EDUCATION PROGRAMS (SUCH AS THE ONE IN
WHICH THE GRIEVANT
PARTICIPATED) DESIGNED TO PROVIDE OPPORTUNITY FOR EMPLOYEES TO
ADVANCE SO AS TO PERFORM TO
THEIR HIGHEST POTENTIAL. THIS PROVISION OF LAW DOES NOT CHANGE
EXISTING, OR PROVIDE ANY NEW,
TRAINING AUTHORITY FOR ORGANIZATIONS COVERED BY CHAPTER 41. THE
CIVIL SERVICE COMMISSION IS
AUTHORIZED BY CHAPTER 41 TO ISSUE REGULATIONS GOVERNING VARIOUS
ASPECTS OF THE LAW.
TRAINING MUST BE RELATED TO THE PERFORMANCE OF AN EMPLOYEE'S CURRENT
OR PROJECTED OFFICIAL
DUTIES IN ORDER TO BE LAWFULLY PAID FOR BY AN AGENCY AND/OR
UNDERTAKEN ON OFFICIAL
TIME. CHAPTER 41 ALSO REQUIRES (5 USC 4101(4), 4103, 4107(C), 4118)
THAT A DETERMINATION BE
MADE BY COMPETENT AUTHORITY THAT TRAINING COURSES ARE RELATED TO
CURRENT OR FUTURE DUTIES
WITHIN THE EMPLOYING AGENCY. (TRAINING FOR POSSIBLE VACANCIES IN
OTHER AGENCIES IS NOT
AUTHORIZED BY CHAPTER 41.)
IN THE INSTANT CASE, THE EMPLOYEE HAD RECEIVED AGENCY AUTHORIZED
TRAINING UNDER THE UPWARD
MOBILITY PROGRAM, TARGETED TOWARD A GS-510-7 POSITION. HER
CONTINUING IN THE UPWARD MOBILITY
PROGRAM WAS CONDITIONAL ON HER NOT MEETING THE CSC HANDBOOK X-118
QUALIFICATION STANDARDS OF
HER TARGETED POSITION. THE ARBITRATOR DETERMINED THAT SUFFICIENT
QUESTION EXISTED AS TO THE
GRIEVANT'S QUALIFICATIONS THAT HE DIRECTED THE AGENCY TO SEEK
CLARIFICATION FROM THE
COMMISSION. PENDING RESOLUTION OF THAT QUESTION, THE ARBITRATOR--
COMPETENT AUTHORITY--
ORDERED THE GRIEVANT RESTORED TO THE UPWARD MOBILITY PROGRAM. THERE
IS NOTHING IN THE LAW OR
COMMISSION REGULATIONS TO PROHIBIT SUCH ACTION BY THE ARBITRATOR.
THE ARBITRATOR SIMULTANEOUSLY ORDERED THAT (PENDING RESOLUTION OF THE
QUESTION OF
QUALIFICATIONS) THE GRIEVANT BE ALLOWED RELEASED TIME FOR THREE
COURSES TO BE SELECTED BY
HER. AS STATED ABOVE, AUTHORIZATION OF TRAINING ON GOVERNMENT TIME
OR AT GOVERNMENT EXPENSE
MUST INCLUDE A DETERMINATION THAT THE TRAINING COURSES ARE RELATED TO
CURRENT OR FUTURE DUTIES
WITHIN THE EMPLOYING AGENCY. UNLESS THE ARBITRATOR (OR THE AGENCY)
MADE SUCH A DETERMINATION,
THE PORTION OF THE AWARD GRANTING RELEASED TIME IS IN VIOLATION OF
APPLICABLE LAW AND
REGULATION.
BASED UPON THE FOREGOING INTERPRETATION OF THE CIVIL SERVICE
COMMISSION, THAT THERE IS NOTHING IN LAW OR REGULATION TO PROHIBIT THE
ARBITRATOR FROM ORDERING THAT THE GRIEVANT BE RESTORED TO THE UPWARD
MOBILITY PROGRAM PENDING RESOLUTION BY THE CIVIL SERVICE COMMISSION OF
THE QUESTION PERTAINING TO HER QUALIFICATIONS, THE AGENCY'S EXCEPTIONS
IN THIS REGARD MUST BE DENIED. HOWEVER AS TO THAT PART OF 4B WHICH
DIRECTS THAT THE GRIEVANT BE ALLOWED RELEASED TIME FOR THREE COURSES
SELECTED BY HER, THE COMMISSION'S INTERPRETATION INDICATES THAT
AUTHORIZATION OF TRAINING ON GOVERNMENT TIME OR AT GOVERNMENT EXPENSE
MUST INCLUDE A DETERMINATION BY COMPETENT AUTHORITY THAT THE TRAINING
COURSES ARE RELATED TO CURRENT OR FUTURE DUTIES WITHIN THE EMPLOYING
AGENCY. IN THIS CASE NO DETERMINATION WAS MADE BY EITHER THE ARBITRATOR
OR THE AGENCY (INDEED, THE AGENCY SPECIFICALLY CHALLENGED THE RELEVANCE
OF THE COURSES SELECTED BY THE GRIEVANT TO HER TARGETED POSITION THAT
THE TRAINING COURSES ARE RELATED TO CURRENT OR FUTURE DUTIES WITHIN THE
AGENCY. THEREFORE, WE CONCLUDE THAT THE PORTION OF PART 4B OF THE
ARBITRATOR'S AWARD WHICH DIRECTS THAT THE GRIEVANT BE GRANTED RELEASED
TIME FOR THREE COURSES SELECTED BY HER VIOLATES APPLICABLE LAW AND
REGULATION. HENCE, THE AGENCY'S EXCEPTION IN THIS REGARD MUST BE
SUSTAINED.
CONCLUSION
FOR THE FOREGOING REASONS, WE CONCLUDE THAT THE PORTION OF PART 4B OF
THE ARBITRATOR'S AWARD WHICH DIRECTS THAT THE GRIEVANT BE GRANTED
RELEASED TIME FOR THREE COURSES TO BE SELECTED BY HER VIOLATES
APPLICABLE LAW AND REGULATION. ACCORDINGLY, PURSUANT TO SECTION
2411.37(B) OF THE COUNCIL'S RULES OF PROCEDURE, WE MODIFY THE
ARBITRATOR'S AWARD BY STRIKING THAT PORTION OF PART 4 B OF THE AWARD.
AS SO MODIFIED, THE AWARD IS SUSTAINED AND THE STAY OF THE AWARD IS
VACATED.
BY THE COUNCIL.
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
ISSUED: DECEMBER 6, 1978
/1/ PARTS 1-3 OF THE AWARD ARE NOT AT ISSUE BEFORE THE COUNCIL.
/2/ THE AGENCY REQUESTED AND THE COUNCIL GRANTED, PURSUANT TO SECTION
2411.47(F) OF THE COUNCIL'S RULES OF PROCEDURE, A STAY OF THE AWARD
PENDING DETERMINATION OF THE APPEAL.
/3/ THE UNION FILED ITS BRIEF BEYOND THE APPLICABLE TIME LIMITS
PROVIDED FOR IN THE COUNCIL'S RULES OF PROCEDURE, AND REQUESTED A WAIVER
OF THE EXPIRED TIME LIMITS IN ACCORDANCE WITH SECTION 2411.45(F) OF THE
RULES. WITHOUT PASSING UPON THE QUESTION OF WHETHER THE GROUND ADVERTED
TO BY THE UNION IN SUPPORT OF ITS WAIVER REQUEST CONSTITUTED
EXTRAORDINARY CIRCUMSTANCES WITHIN THE MEANING OF SECTION 2411.45(F) OF
THE RULES IN THE CIRCUMSTANCES OF THIS CASE, THE COUNCIL CONSIDERED THE
UNION'S BRIEF IN REACHING ITS DECISION HEREIN.
6 FLRC 908; FLRC NO. 78A-106; DECEMBER 1, 1978.
(SYNOPSIS) FLRC NO. 78A-106
DEPARTMENT OF THE AIR FORCE, 35TH COMBAT SUPPORT GROUP, GEORGE AIR
FORCE BASE, CALIFORNIA, ASSISTANT SECRETARY CASE NO. 72-7397(CA). THE
ASSISTANT SECRETARY, IN AGREEMENT WITH THE REGIONAL ADMINISTRATOR (RA),
FOUND THAT A REASONABLE BASIS HAD NOT BEEN ESTABLISHED FOR THE SECTION
19(A)(1) AND (6) COMPLAINT OF THE UNION (NATIONAL FEDERATION OF FEDERAL
EMPLOYEES), INASMUCH AS THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE
UNION'S ALLEGATION THAT THE ACTIVITY HAD UNILATERALLY CHANGED A PAST
PRACTICE WITH REGARD TO THE PROCEDURES FOLLOWED BY THE INCENTIVE AWARDS
COMMITTEE. THE ASSISTANT SECRETARY THEREFORE DENIED THE UNION'S REQUEST
FOR REVIEW SEEKING REVERSAL OF THE RA'S DISMISSAL OF THE UNION'S
COMPLAINT. THE UNION APPEALED TO THE COUNCIL, ASSERTING, IN SUBSTANCE,
THAT THE ASSISTANT SECRETARY'S CONCLUSION REGARDING THE ACTIVITY'S
ALLEGED UNILATERAL CHANGE IN THE PAST PRACTICE OF ITS INCENTIVE AWARDS
COMMITTEE WAS, IN EFFECT, CONTRARY TO THE EVIDENCE.
COUNCIL ACTION (DECEMBER 1, 1978). THE COUNCIL HELD THAT THE UNION'S
PETITION FOR REVIEW DID NOT MEET THE REQUIREMENTS OF SECTION 2411.12 OF
THE COUNCIL'S RULES OF PROCEDURE; THAT IS, THE UNION NEITHER ALLEGED,
NOR DID IT APPEAR, THAT THE DECISION OF THE ASSISTANT SECRETARY WAS
EITHER ARBITRARY AND CAPRICIOUS OR PRESENTED A MAJOR POLICY ISSUE, AND
THE UNION'S ASSERTIONS OTHERWISE PRESENTED NO BASIS FOR COUNCIL REVIEW.
ACCORDINGLY, THE COUNCIL DENIED THE UNION'S PETITION FOR REVIEW.
DECEMBER 1, 1978
MR. ROBERT J. ENGLEHART
STAFF ATTORNEY
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES
1016 16TH STREET, NW.
WASHINGTON, D.C. 20036
RE: DEPARTMENT OF THE AIR FORCE 35TH COMBAT
SUPPORT GROUP, GEORGE AIR FORCE BASE,
CALIFORNIA, ASSISTANT SECRETARY CASE NO.
72-7397(CA), FLRC NO. 78A-106
DEAR MR. ENGLEHART:
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 THE ASSISTANT SECRETARY'S DECISION, THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES (THE UNION) FILED AN UNFAIR LABOR
PRACTICE COMPLAINT ALLEGING THAT THE DEPARTMENT OF THE AIR FORCE, 35TH
COMBAT SUPPORT GROUP, GEORGE AIR FORCE BASE, CALIFORNIA (THE ACTIVITY)
VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER WHEN IT UNILATERALLY
CHANGED AN EXISTING PRACTICE BY FAILING TO REQUIRE THAT EACH MEMBER OF
THE ACTIVITY'S INCENTIVE AWARDS COMMITTEE REVIEW THE FILE OF EACH
EMPLOYEE NOMINATED FOR AN AWARD PRIOR TO FORWARDING THE COMMITTEE'S
RECOMMENDATIONS TO THE AWARDS APPROVAL AUTHORITY. UPON INVESTIGATION OF
THE COMPLAINT, THE REGIONAL ADMINISTRATOR (RA) DETERMINED THAT AT THE
COMMITTEE MEETING IN QUESTION THE UNION HAD TWO REPRESENTATIVES IN
ATTENDANCE PURSUANT TO A NEGOTIATED AGREEMENT PROVISION, THAT AT THIS
MEETING NEITHER THE UNION REPRESENTATIVE NOR ANY OTHER MEMBER OF THE
COMMITTEE OBJECTED TO THE PROCEDURE WHICH WAS FOLLOWED AT ANY TIME, AND
THAT THE UNION REPRESENTATIVES VOTED TO RECOMMEND APPROVAL OF ALL THE
AWARD CANDIDATES AS A GROUP. FINDING THAT THE UNION REPRESENTATIVES
THUS "GAVE TACIT APPROVAL TO THE PROCEDURE USED IN IDENTIFYING THE
PERSONS TO BE RECOMMENDED FOR OUTSTANDING AWARDS," THE RA CONCLUDED THAT
THE ACTIVITY HAD NOT UNILATERALLY CHANGED AN ESTABLISHED PRACTICE AND,
ACCORDINGLY, DISMISSED THE UNION'S COMPLAINT. THE ASSISTANT SECRETARY,
IN AGREEMENT WITH THE RA, FOUND THAT NO REASONABLE BASIS FOR THE
COMPLAINT HAD BEEN ESTABLISHED INASMUCH AS THE EVIDENCE SUBMITTED WAS
INSUFFICIENT, IN THE ASSISTANT SECRETARY'S VIEW, TO SUPPORT THE UNION'S
ALLEGATION THAT THE ACTIVITY HAD CHANGED A PAST PRACTICE WITH REGARD TO
THE COMMITTEE'S RECOMMENDATION PROCEDURES. ACCORDINGLY, AND NOTING IN
ADDITION THAT "NO MEMBER OF THE COMMITTEE WAS PREVENTED FROM REVIEWING
ANY FILE REQUESTED BEFORE A VOTE WAS TAKEN," THE ASSISTANT SECRETARY
DENIED THE UNION'S REQUEST FOR REVIEW SEEKING REVERSAL OF THE RA'S
DISMISSAL OF THE COMPLAINT.
IN YOUR PETITION TO THE COUNCIL ON BEHALF OF THE UNION, YOU "ASK THAT
THE ASSISTANT SECRETARY'S DECISION IN THIS CASE BE REVERSED." IN SUPPORT
OF YOUR PETITION YOU ASSERT THAT THE ASSISTANT SECRETARY'S CONCLUSION
REGARDING THE ACTIVITY'S ALLEGED UNILATERAL CHANGE IN THE PAST PRACTICE
OF ITS INCENTIVE AWARDS COMMITTEE IS, IN EFFECT, CONTRARY TO THE
EVIDENCE AND THAT HIS FINDING THAT NO COMMITTEE MEMBER WAS PREVENTED
FROM REVIEWING ANY FILE BEFORE A VOTE WAS TAKEN "MISSES THE POINT."
IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW DOES NOT MEET THE
REQUIREMENTS OF THE COUNCIL'S RULES. THAT IS, YOU DO NOT ALLEGE, AND IT
DOES NOT APPEAR, THAT THE DECISION OF THE ASSISTANT SECRETARY IS EITHER
ARBITRARY AND CAPRICIOUS OR PRESENTS A MAJOR POLICY ISSUE. RATHER, YOUR
ALLEGATIONS AS SET FORTH ABOVE CONSTITUTE, IN ESSENCE, NOTHING MORE THAN
DISAGREEMENT WITH THE ASSISTANT SECRETARY'S DETERMINATION THAT NO
REASONABLE BASIS FOR THE COMPLAINT WAS ESTABLISHED IN THE CIRCUMSTANCES
OF THIS CASE, AND THEREFORE PRESENT NO BASIS FOR COUNCIL REVIEW.
SINCE YOU NEITHER ALLEGE, NOR DOES IT APPEAR, THAT THE ASSISTANT
SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS OR RAISES 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 HEREBY DENIED.
BY THE COUNCIL.
SINCERELY,
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
CC: A/SLMR
LABOR
CAPT. D. FRANCK
AIR FORCE
6 FLRC 904; FLRC NO. 78A-102; DECEMBER 1, 1978.
(SYNOPSIS) FLRC NO. 78A-102
BUREAU OF HEARINGS AND APPEALS, SOCIAL SECURITY ADMINISTRATION,
WASHINGTON, D.C., ASSISTANT SECRETARY CASE NO. 22-08587(CA). THE
ASSISTANT SECRETARY, IN AGREEMENT WITH THE REGIONAL ADMINISTRATOR (RA),
FOUND THAT A REASONABLE BASIS HAD NOT BEEN ESTABLISHED FOR THE SECTION
19(A)(1), (2), (4) AND (6) COMPLAINT FILED BY THE UNION (LOCAL 3615,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO) RELATED TO A MEMO
FROM THE ACTIVITY TO THE UNION'S CHIEF STEWARD. THE ASSISTANT SECRETARY
THEREUPON DENIED THE UNION'S REQUEST FOR REVIEW SEEKING REVERSAL OF THE
RA'S DISMISSAL OF THE UNION'S COMPLAINT. THE UNION APPEALED TO THE
COUNCIL, CONTENDING, IN SUBSTANCE, THAT THE ASSISTANT SECRETARY'S
DECISION WAS ARBITRARY AND CAPRICIOUS.
COUNCIL ACTION (DECEMBER 1, 1978). THE COUNCIL HELD THAT THE UNION'S
PETITION FOR REVIEW DID NOT MEET THE REQUIREMENTS OF SECTION 2411.12 OF
THE COUNCIL'S RULES OF PROCEDURE; THAT IS, THE DECISION OF THE
ASSISTANT SECRETARY DID NOT APPEAR ARBITRARY AND CAPRICIOUS AND THE
UNION NEITHER ALLEGED, NOR DID IT APPEAR, THAT THE DECISION PRESENTED A
MAJOR POLICY ISSUE. ACCORDINGLY, THE COUNCIL DENIED THE UNION'S
PETITION FOR REVIEW.
DECEMBER 1, 1978
MR. ALBERT B. CARROZZA
LOCAL 3615, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
BUREAU OF HEARINGS AND APPEALS
SOCIAL SECURITY ADMINISTRATION
P.O. BOX 147
ARLINGTON, VIRGINIA 22210
RE: BUREAU OF HEARINGS AND APPEALS, SOCIAL
SECURITY ADMINISTRATION, WASHINGTON,
D.C., ASSISTANT SECRETARY CASE NO.
22-08587(CA), FLRC NO. 78A-102
DEAR MR. CARROZZA:
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, AS FOUND BY THE ASSISTANT SECRETARY, LOCAL 3615,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (THE UNION) FILED
AN UNFAIR LABOR PRACTICE COMPLAINT AGAINST THE BUREAU OF HEARINGS AND
APPEALS. SOCIAL SECURITY ADMINISTRATION, WASHINGTON, D.C. (THE
ACTIVITY). THE COMPLAINT ALLEGED THAT THE ACTIVITY VIOLATED SECTION
19(A)(1), (2), (4) AND (6) OF THE ORDER BY WRITING A "CAUSTIC AND
HOSTILE MEMO TO THE (UNION'S) CHIEF STEWARD" AFTER THE ACTIVITY REFUSED
TO GRANT HIM OFFICIAL TIME TO DISCUSS A GRIEVANCE; THAT THE MEMO
CONTAINED SEVERAL DEFAMING REMARKS ABOUT THE STEWARD AND WAS WRITTEN
CLEARLY TO INTIMIDATE AND DISCOURAGE HIM FROM PARTICIPATING IN UNION
ACTIVITIES; THAT THE ACTIVITY INTENTIONALLY BELITTLED THE STEWARD
BECAUSE HE HAD PREVIOUSLY TESTIFIED AT SEVERAL UNFAIR LABOR PRACTICE
HEARINGS AND MADE ADVERSE COMMENTS ABOUT CERTAIN MANAGEMENT OFFICIALS;
AND THAT THE ACTIVITY CONTINUALLY REFUSED TO MEET WITH THE STEWARD ON
MATTERS CONCERNING UNFAIR LABOR PRACTICES AND GRIEVANCES.
THE ASSISTANT SECRETARY, IN AGREEMENT WITH THE REGIONAL ADMINISTRATOR
(RA), FOUND THAT A REASONABLE BASIS FOR THE COMPLAINT HAD NOT BEEN
ESTABLISHED AND THAT, CONSEQUENTLY, FURTHER PROCEEDINGS IN THE MATTER
WERE UNWARRANTED. THUS, IN HIS VIEW, THERE WAS INSUFFICIENT EVIDENCE TO
SUPPORT THE ALLEGATION THAT THE ACTIVITY'S MEMORANDUM VIOLATED SECTION
19(A)(1), (2) AND (4) OF THE ORDER. FURTHER, AS TO THE ALLEGATION THAT
THE ACTIVITY'S PURPORTED REFUSAL TO GRANT THE STEWARD OFFICIAL TIME TO
DISCUSS A GRIEVANCE VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER, THE
ASSISTANT SECRETARY STATED:
(I)T HAS BEEN HELD PREVIOUSLY THAT WHERE, AS HERE, THE GRAVAMEN OF
THE COMPLAINT INVOLVES
THE INTERPRETATION AND APPLICATION OF THE PARTIES' NEGOTIATED
AGREEMENT, ABSENT EVIDENCE OF A
FLAGRANT AND DELIBERATE BREACH OF THAT AGREEMENT, THE PROPER FORUM
FOR RESOLUTION OF THE ISSUE
IS THE PARTIES' NEGOTIATED GRIEVANCE PROCEDURE. . . .
UNDER THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY DENIED THE UNION'S
REQUEST FOR REVIEW SEEKING REVERSAL OF THE RA'S DISMISSAL OF THE INSTANT
COMPLAINT.
IN YOUR PETITION FOR REVIEW ON BEHALF OF THE UNION, YOU ALLEGE AS
"GROUNDS FOR REVIEW" THAT (1) "(T)HE ASSISTANT SECRETARY ACTED
ARBITRARILY AND CAPRICIOUSLY IN FAILING TO REMAND THIS UNFAIR LABOR
PRACTICE AS IT INVOLVED A FLAGRANT DISREGARD FOR THE RIGHTS OF A UNION
REPRESENTATIVE"; (2) "(T)HE (UNION) WAS NOT PERMITTED TO PARTICIPATE IN
AN ARBITRATION MATTER BECAUSE OF THE DENIAL OF OFFICIAL TIME"; AND (3)
THE "EVIDENCE IN THIS AND OTHER PROCEEDINGS . . . SHOW THAT THE ACTIVITY
HAD DEVELOPED A FLAGRANT AND PERSISTENT PATTERN OF DENYING OFFICIAL TIME
TO THE UNION AND ITS REPRESENTATIVES."
IN THE COUNCIL'S OPINION, 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 AND YOU NEITHER
ALLEGE NOR DOES IT APPEAR THAT THE DECISION PRESENTS ANY MAJOR POLICY
ISSUES.
AS TO YOUR ALLEGATION 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 THE CIRCUMSTANCES OF THIS CASE. THUS, YOUR CONTENTIONS IN
THIS REGARD AMOUNT TO ESSENTIALLY NOTHING MORE THAN MERE DISAGREEMENT
WITH THE ASSISTANT SECRETARY'S DETERMINATION THAT NO REASONABLE BASIS
FOR THE COMPLAINT HAD BEEN ESTABLISHED, AND THEREFORE PRESENT NO BASIS
FOR COUNCIL REVIEW. WITH REGARD TO YOUR FURTHER ALLEGATIONS CONCERNING
THE ACTIVITY'S DENIAL OF OFFICIAL TIME FOR THE UNION TO PARTICIPATE IN
ARBITRATION MATTERS, IN THE COUNCIL'S VIEW SUCH CONTENTIONS CONSTITUTE
ESSENTIALLY MERE DISAGREEMENT WITH THE ASSISTANT SECRETARY'S FINDING
THAT WHERE, AS HERE, THE GRAVAMEN OF THE COMPLAINT INVOLVES THE
INTERPRETATION AND APPLICATION OF THE PARTIES' AGREEMENT, THE PROPER
FORUM FOR RESOLVING THE ISSUE IS THE PARTIES' NEGOTIATED GRIEVANCE
PROCEDURE ABSENT EVIDENCE OF A FLAGRANT AND DELIBERATE BREACH OF THAT
AGREEMENT. /1/ MOREOVER, YOUR APPEAL NEITHER ALLEGES, NOR DOES IT
OTHERWISE APPEAR, THAT THE ASSISTANT SECRETARY'S DECISION RAISES A MAJOR
POLICY ISSUE.
SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS AND YOU NEITHER ALLEGE NOR DOES IT APPEAR THAT THE
DECISION PRESENTS ANY MAJOR POLICY ISSUES, YOUR APPEAL FAILS TO MEET THE
REQUIREMENTS FOR REVIEW AS SET FORTH IN SECTION 2411.12 OF THE COUNCIL'S
RULES OF PROCEDURE. ACCORDINGLY, REVIEW OF YOUR APPEAL IS HEREBY
DENIED.
BY THE COUNCIL.
SINCERELY,
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
CC: A/SLMR
LABOR
I. L. BECKER
SSA
/1/ IN THIS REGARD, SEE THE COUNCIL'S COMMENTS IN REQUEST FOR
INTERPRETATIONS AND POLICY STATEMENTS, 3 FLRC 874, 878-879 (FLRC NO.
75P-1 (MAY 23, 1975), REPORT NO. 90); AND THE COUNCIL'S DECISION IN
DEPARTMENT OF THE AIR FORCE, BASE PROCUREMENT OFFICE, VANDENBERG AIR
FORCE BASE, CALIFORNIA, A/SLMR NO. 485, 4 FLRC 586, 592 (FLRC NO. 75A
NO. 75A-25 (NOV. 19, 1976), REPORT NO. 118), TO THE EFFECT THAT WHILE
NOTHING IN THE ORDER PROHIBITS AN AGENCY AND A LABOR ORGANIZATION FROM
NEGOTIATING PROVISIONS FOR THE USE OF OFFICIAL TIME BY UNION
REPRESENTATIVES FOR CONTRACT ADMINISTRATION AND OTHER REPRESENTATIONAL
ACTIVITIES, THE NEGOTIATION OF SUCH PROVISIONS INTO AN AGREEMENT DOES
NOT THEREBY CONVERT A CONTRACTUAL RIGHT INTO A RIGHT GUARANTEED BY THE
ORDER AND REMEDIABLE UNDER SECTION 19 OF THE ORDER.
6 FLRC 900; FLRC NO. 78A-71; DECEMBER 1, 1978.
(SYNOPSIS) FLRC NO. 78A-71
U.S. DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, NEW
ORLEANS DISTRICT, NEW ORLEANS, LOUISIANA, A/SLMR NO. 1034. THE
ASSISTANT SECRETARY ADOPTED THE FINDINGS AND CONCLUSIONS OF THE
ADMINISTRATIVE LAW JUDGE (ALJ) THAT THE ACTIVITY VIOLATED SECTION
19(A)(1) AND (6) OF THE ORDER IN THE CIRCUMSTANCES OF THIS CASE, THAT
IS, BY UNILATERALLY CHANGING AN ESTABLISHED PRACTICE OF PERMITTING THE
UNION TO UTILIZE ACTIVITY EQUIPMENT AND PERSONNEL TO TYPE GRIEVANCE AND
OTHER UNION COMMUNICATIONS. THE ASSISTANT SECRETARY THEREUPON ISSUED A
REMEDIAL ORDER EXPRESSLY LIMITED TO ONLY THOSE PAST PRACTICES WHICH
WOULD NOT BE INCONSISTENT WITH SECTION 20 OF THE ORDER. THE AGENCY
APPEALED TO THE COUNCIL, CONTENDING THAT THE ASSISTANT SECRETARY'S
DECISION RAISED MAJOR POLICY ISSUES. THE AGENCY ALSO REQUESTED A STAY.
COUNCIL ACTION (DECEMBER 1, 1978). THE COUNCIL HELD THAT THE
AGENCY'S PETITION FOR REVIEW DID NOT MEET THE REQUIREMENTS OF SECTION
2411.12 OF THE COUNCIL'S RULES OF PROCEDURE; THAT IS, THE DECISION OF
THE ASSISTANT SECRETARY DID NOT PRESENT ANY MAJOR POLICY ISSUES AND THE
AGENCY NEITHER ALLEGED, NOR DID IT APPEAR, THAT THE DECISION WAS
ARBITRARY AND CAPRICIOUS. ACCORDINGLY, THE COUNCIL DENIED THE AGENCY'S
PETITION FOR REVIEW. THE COUNCIL LIKEWISE DENIED THE AGENCY'S REQUEST
FOR A STAY.
DECEMBER 1, 1978
MR. DAVID N. REDA
STAFF ASSISTANT TO THE
REGIONAL COUNSEL
INTERNAL REVENUE SERVICE
SOUTHWEST REGION
FEDERAL OFFICE BUILDING
1100 COMMERCE STREET, ROOM 12D27
DALLAS, TEXAS 75242
RE: U.S. DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, NEW ORLEANS
DISTRICT, NEW ORLEANS, LOUISIANA,
A/SLMR NO. 1034, FLRC NO. 78A-71
DEAR MR. REDA:
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 NATIONAL TREASURY EMPLOYEES UNION (THE UNION) FILED
AN UNFAIR LABOR PRACTICE COMPLAINT AGAINST THE U.S. DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE, NEW ORLEANS DISTRICT, NEW ORLEANS,
LOUISIANA (THE ACTIVITY). THE COMPLAINT ALLEGED THAT THE ACTIVITY
VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY UNILATERALLY DENYING
THE UNION, CONTRARY TO PAST PRACTICE, THE USE OF GOVERNMENT-OWNED
TYPEWRITERS AND THE ASSISTANCE OF ACTIVITY CLERICAL PERSONNEL IN THE
PREPARATION OF GRIEVANCES AND OTHER UNION PAPERS "REGARDLESS OF WHETHER
OR NOT THE EMPLOYEE UTILIZES THE FACILITIES WHILE ON ANNUAL LEAVE OR
LEAVE WITHOUT PAY OR BEFORE THE START OF THE WORKDAY OR AFTER THE END OF
THE WORKDAY OR WHILE ON MEAL BREAK OR FREE TIME."
THE ASSISTANT SECRETARY ADOPTED THE FINDINGS AND CONCLUSIONS OF THE
ADMINISTRATIVE LAW JUDGE (ALJ) THAT THE ACTIVITY VIOLATED SECTION
19(A)(1) AND (6) OF THE ORDER IN THE CIRCUMSTANCES OF THIS CASE. THUS,
IT WAS FOUND THAT THE RECORD ESTABLISHED THAT THE UTILIZATION BY THE
UNION OF TYPEWRITERS AND/OR SECRETARIES TO TYPE GRIEVANCES AND OTHER
UNION COMMUNICATIONS WAS PERMITTED AND IN FACT SANCTIONED BY AGENCY
MANAGERS. WITHOUT ANY PRIOR NEGOTIATIONS OR CONSULTATION WITH THE UNION,
THE AGENCY UNILATERALLY TERMINATED THE PRACTICE. IT WAS CONCLUDED THAT,
HAVING GRANTED THE UNION THE PRIVILEGE OF USING ACTIVITY EQUIPMENT AND
PERSONNEL, THE ACTIVITY VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER
BY UNILATERALLY CHANGING THIS ESTABLISHED PRACTICE. IN SO CONCLUDING,
THE ASSISTANT SECRETARY EXPRESSLY LIMITED HIS REMEDIAL ORDER TO ONLY
THOSE PAST PRACTICES WHICH WOULD NOT BE INCONSISTENT WITH SECTION 20 OF
THE ORDER. /1/ THUS HIS ORDER DIRECTED THE ACTIVITY TO CEASE AND DESIST
FROM "(U)NILATERALLY ALTERING OR CHANGING THE ESTABLISHED PAST PRACTICE
OF ALLOWING . . . THE EXCLUSIVE REPRESENTATIVE . . . THE USE OF ACTIVITY
TYPEWRITERS, AND THE NONDUTY-TIME ASSISTANCE OF CERTAIN ACTIVITY
PERSONNEL, FOR THE PURPOSES OF TYPING GRIEVANCES OR OTHER UNION
COMMUNICATIONS INCIDENT TO ITS REPRESENTATIONAL OBLIGATIONS, AND
CONSONANT WITH THE PROVISIONS OF SECTION 20 OF EXECUTIVE ORDER 11491, AS
AMENDED, AND THE REGULATIONS OF APPROPRIATE AUTHORITIES. . . . "
IN YOUR PETITION FOR REVIEW ON BEHALF OF THE ACTIVITY, YOU ALLEGE
THAT THE ASSISTANT SECRETARY'S DECISION RAISES MAJOR POLICY ISSUES AS TO
(1) "(W)HETHER AN AGENCY SUPERVISOR WITHOUT ACTUAL AUTHORITY WHO ALLOWS
THE USE OF GOVERNMENT PROPERTY OR EQUIPMENT BY UNION OFFICIALS CAN
CREATE A PAST PRACTICE BINDING UPON THE AGENCY," AND (2) "(W)HETHER A
PAST PRACTICE TRANSFORMS NON-MANDATORY SUBJECTS OF BARGAINING INTO
MANDATORY SUBJECTS WHICH CAN ONLY BE ALTERED THROUGH NEGOTIATIONS."
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
ISSUES, AND YOU NEITHER ALLEGE, NOR DOES IT APPEAR, THAT HIS DECISION
WAS ARBITRARY AND CAPRICIOUS.
WITH RESPECT TO YOUR ALLEGATION THAT THE ASSISTANT SECRETARY'S
DECISION RAISES A MAJOR POLICY ISSUE CONCERNING THE EXTENT TO WHICH A
SUPERVISOR WITHOUT ACTUAL AUTHORITY CAN CREATE A PAST PRACTICE BINDING
UPON AGENCY MANAGEMENT, IN THE COUNCIL'S VIEW NO MAJOR POLICY ISSUE IS
PRESENTED WARRANTING REVIEW. THUS, YOUR ASSERTION IN THIS REGARD
CONSTITUTES, IN EFFECT, NOTHING MORE THAN DISAGREEMENT WITH THE
ASSISTANT SECRETARY'S FACTUAL DETERMINATION THAT SUCH PRACTICE "WAS
PERMITTED AND IN FACT SANCTIONED BY AGENCY MANAGERS." /2/ NOR IS A MAJOR
POLICY ISSUE PRESENTED, AS ALLEGED, CONCERNING WHETHER A PAST PRACTICE
CAN TRANSFORM A NONMANDATORY SUBJECT OF BARGAINING INTO A MANDATORY
SUBJECT. THUS, YOUR APPEAL IN THIS REGARD MERELY CONSTITUTES A
DISAGREEMENT WITH THE ASSISTANT SECRETARY'S CONCLUSION THAT THE
UNILATERAL TERMINATION OF A PAST PRACTICE VIOLATED SECTION 9(A)(1) AND
(6) OF THE ORDER.
SINCE THE ASSISTANT SECRETARY'S DECISION PRESENTS NO MAJOR POLICY
ISSUES, AND YOU NEITHER ALLEGE, NOR DOES IT APPEAR, THAT HIS DECISION
WAS ARBITRARY AND CAPRICIOUS, YOUR APPEAL FAILS TO MEET THE REQUIREMENTS
FOR REVIEW AS SET FORTH IN SECTION 2411.12 OF THE COUNCIL'S RULES.
ACCORDINGLY, YOUR PETITION FOR REVIEW IS HEREBY DENIED. YOUR REQUEST
FOR A STAY OF THE ASSISTANT SECRETARY'S DECISION IS ALSO DENIED.
BY THE COUNCIL.
SINCERELY,
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
CC: A/SLMR
R. V. ROBERTSON
NTEU
/1/ SECTION 20 PROVIDES, IN PERTINENT PART:
SEC. 20. USE OF OFFICIAL TIME. 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.
/2/ SIMILARLY, NO BASIS FOR COUNCIL REVIEW IS PRESENTED BY YOUR
RELATED ASSERTION THAT PROVISIONS OF LAW (E.O. 11222) AND AGENCY
REGULATION (31 C.F.R. 0.735.50) PROHIBITING THE USE OF FEDERAL PROPERTY
"FOR OTHER THAN OFFICIALLY APPROVED ACTIVITIES" RENDERED THE PRACTICE IN
QUESTION UNLAWFUL, AGAIN NOTING THE ASSISTANT SECRETARY'S FINDING THAT
SUCH PRACTICE HAD BEEN PERMITTED AND IN FACT SANCTIONED BY AGENCY
MANAGERS. IN THIS CONNECTION, THE COUNCIL NOTES THAT SECTION 23 OF THE
ORDER PROVIDES, IN PERTINENT PART:
(E)ACH AGENCY SHALL ISSUE APPROPRIATE POLICIES AND REGULATIONS
CONSISTENT WITH THIS ORDER
FOR ITS IMPLEMENTATION. THIS INCLUDES . . . POLICIES WITH RESPECT TO
THE USE OF AGENCY
FACILITIES BY LABOR ORGANIZATIONS. . . .
6 FLRC 896; FLRC NO. 78A-16; NOVEMBER 14, 1978.
(SYNOPSIS) FLRC NO. 78A-16
DEPARTMENT OF THE INTERIOR, BUREAU OF RECLAMATION, GRAND COULEE
PROJECT OFFICE, GRAND COULEE, WASHINGTON, ASSISTANT SECRETARY CASE NO.
71-4234(GA). BEFORE DECIDING WHETHER TO ACCEPT OR DENY THE PETITION
FILED BY THE UNION (COLUMBIA BASIN TRADES COUNCIL), SEEKING REVIEW OF
THE ASSISTANT SECRETARY'S DISMISSAL OF THE UNION'S APPLICATION FOR
DECISION ON GRIEVABILITY AS UNTIMELY, THE COUNCIL, ON JUNE 28, 1978,
REQUESTED THE ASSISTANT SECRETARY TO REVIEW AND CLARIFY HIS DECISION.
ON SEPTEMBER 20, 1978, THE ASSISTANT SECRETARY ISSUED A SUPPLEMENTAL
DECISION, IN EFFECT REVERSING HIS INITIAL DECISION BY WAIVING THE
APPLICABLE TIME LIMITS IN HIS REGULATIONS FOR THE FILING OF THE SUBJECT
APPLICATION AND FINDING THE MATTER IN DISPUTE TO BE GRIEVABLE.
COUNCIL ACTION (NOVEMBER 14, 1978). SINCE THE UNION'S PETITION FOR
REVIEW OF THE ASSISTANT SECRETARY'S INITIAL DECISION HAD BEEN RENDERED
MOOT BY HIS SUPPLEMENTAL DECISION, THE COUNCIL DENIED THE PETITION.
NOVEMBER 14, 1978
MR. LOUIS P. POULTON
ASSOCIATE GENERAL COUNSEL
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS
1300 CONNECTICUT AVENUE, NW.
WASHINGTON, D.C. 20036
MR. JOHN F. MCKUNE
DIRECTOR OF PERSONNEL
OFFICE OF THE SECRETARY
DEPARTMENT OF THE INTERIOR
WASHINGTON, D.C. 20240
RE: DEPARTMENT OF THE INTERIOR, BUREAU OF
RECLAMATION, GRAND COULEE PROJECT OFFICE,
GRAND COULEE, WASHINGTON, ASSISTANT
SECRETARY CASE NO. 71-4234(GA), FLRC
NO. 78A-16
GENTLEMEN:
REFERENCE IS MADE TO THE PETITION FOR REVIEW FILED WITH THE COUNCIL
BY THE UNION, AND THE OPPOSITION FILED BY THE AGENCY, IN THE
ABOVE-ENTITLED CASE.
IN THE INSTANT MATTER, THE UNION, THE COLUMBIA BASIN TRADES COUNCIL,
INITIALLY FILED SUIT IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA AGAINST THE SECRETARY OF THE INTERIOR SEEKING TO
REQUIRE THE AGENCY TO ARBITRATE A GRIEVANCE PURSUANT TO THE PARTIES'
COLLECTIVE BARGAINING AGREEMENT. THE COURT DISMISSED THE SUIT, /1/ UPON
MOTION BY THE GOVERNMENT, FOR THE UNION'S FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES-- SPECIFICALLY, THE UNION'S FAILURE TO REFER THE
MATTER TO THE ASSISTANT SECRETARY FOR A GRIEVABILITY OR ARBITRABILITY
DECISION AS PROVIDED IN SECTION 6(A)(5) OF THE ORDER AND TO APPEAL ANY
DECISION OF THE ASSISTANT SECRETARY TO THE COUNCIL UNDER SECTION 4(C)(1)
OF THE ORDER.
FOLLOWING THE COURT'S DISMISSAL OF THE SUIT, THE UNION FILED AN
APPLICATION FOR DECISION ON GRIEVABILITY WITH THE ASSISTANT SECRETARY,
WHO FOUND THE APPLICATION TO BE PROCEDURALLY DEFECTIVE SINCE IT WAS
UNTIMELY FILED. CONSEQUENTLY, THE APPLICATION WAS DISMISSED. THE UNION
THEN FILED A PETITION FOR REVIEW OF THE ASSISTANT SECRETARY'S DECISION
WITH THE COUNCIL CONTENDING, AMONG OTHER THINGS, THAT THE APPLICATION
WAS TIMELY FILED WHEN TAKING INTO CONSIDERATION THAT THE UNION'S REQUEST
WAS MADE AFTER THE COURT ISSUED ITS DECISION DISMISSING THE SUIT FOR
FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES, IN PARTICULAR, THE FAILURE
TO REFER THE MATTER TO THE ASSISTANT SECRETARY. BEFORE DETERMINING
WHETHER TO ACCEPT OR DENY THE PETITION FOR REVIEW, THE COUNCIL, ON JUNE
28, 1978, REQUESTED THE ASSISTANT SECRETARY TO REVIEW AND CLARIFY HIS
DECISION, STATING:
OF SIGNIFICANCE, IT APPEARS FROM AN EXAMINATION OF THE RECORD IN THE
COURT PROCEEDINGS THAT
THE GOVERNMENT, IN RAISING THE DEFENSE OF FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES, FAILED
TO INFORM THE COURT THAT A TIMELY APPEAL COULD HAVE BEEN FILED WITH
THE ASSISTANT SECRETARY
PRIOR TO THE FILING OF THE SUIT. THAT IS, THE GOVERNMENT DID NOT
INFORM THE COURT THAT THE
TIME LIMITS ESTABLISHED IN THE ASSISTANT SECRETARY'S REGULATIONS FOR
SEEKING AN ADMINISTRATIVE
REMEDY PURSUANT TO SECTION 6(A)(5) OF THE ORDER HAD EXPIRED EVEN
BEFORE THE UNION FILED THE
SUIT AND, CONSEQUENTLY, NO SUCH ADMINISTRATIVE REMEDY WAS AVAILABLE
TO THE UNION.
. . . .
IN VIEW OF THE VERY SPECIAL AND UNIQUE CIRCUMSTANCES IN THIS CASE,
NAMELY THE GOVERNMENT'S
FAILURE TO INFORM THE COURT THAT THE TIME LIMITS FOR FILING AN APPEAL
PURSUANT TO YOUR
REGULATIONS HAD EXPIRED PRIOR TO THE INITIATION OF JUDICIAL
PROCEEDINGS, THE COUNCIL HAS
DECIDED, PRIOR TO DETERMINING WHETHER TO ACCEPT OR DENY THE INSTANT
PETITION FOR REVIEW, TO
REQUEST REVIEW AND CLARIFICATION OF YOUR DECISION. YOU ARE REQUESTED
TO MAKE THIS REVIEW AND
CLARIFICATION IN LIGHT OF THE ENTIRE RECORD BEFORE THE COURT,
INCLUDING CONSIDERATION OF
WHETHER THE TIME LIMITS IN YOUR REGULATIONS SHOULD BE WAIVED IN LIGHT
OF THE ENTIRE RECORD
BEFORE THE COURT, MOST PARTICULARLY, IN LIGHT OF THE GOVERNMENT'S
FAILURE TO INFORM THE COURT
FULLY AS TO THE NATURE AND IMPACT OF YOUR PROCEDURAL REQUIREMENTS.
THE COUNCIL ALSO STATED IN ITS REQUEST (COPIES OF WHICH WERE SERVED
UPON THE PARTIES) THAT FOLLOWING THE ASSISTANT SECRETARY'S "REVIEW AND
THE ISSUANCE OF SUCH CLARIFICATION, THE PARTIES ARE GRANTED THIRTY (30)
DAYS FROM THE DATE OF SERVICE THEREOF TO FILE SUPPLEMENTAL SUBMISSIONS
WITH THE COUNCIL, AND TWENTY (20) DAYS FROM THE DATE OF SERVICE OF SUCH
SUPPLEMENTAL SUBMISSIONS TO FILE RESPECTIVE RESPONSES THERETO."
ON SEPTEMBER 20, 1978, THE ASSISTANT SECRETARY ISSUED HIS
SUPPLEMENTAL DECISION HEREIN, IN WHICH HE STATED THAT "(I)N VIEW OF THE
TOTAL CIRCUMSTANCES IN THIS CASE AS DESCRIBED BY THE COUNCIL, AND
PURSUANT TO SECTION 206.9(B) OF THE ASSISTANT SECRETARY'S REGULATIONS, I
AM WAIVING THE TIME LIMITS ESTABLISHED IN SECTION 205.2(A) OF THE
REGULATIONS, AND WILL ADDRESS THE MERITS OF THIS CASE." THE ASSISTANT
SECRETARY WENT ON TO FIND THAT "THE MATTER IN DISPUTE IS GRIEVABLE, AS
THE SUBJECT MATTER OF THE GRIEVANCE APPEARS CLEARLY TO FALL WITHIN . . .
THE PARTIES' NEGOTIATED AGREEMENT. . . . CONSEQUENTLY, I DIRECT THE
PARTIES TO PROCEED UNDER THE TERMS OF THEIR NEGOTIATED GRIEVANCE
PROCEDURE, AND REFER THE DISPUTE TO THEIR JOINT BOARD OF ADJUSTMENT."
NEITHER PARTY HAS FILED A SUPPLEMENTAL SUBMISSION WITH THE COUNCIL
FOLLOWING THE ISSUANCE OF THE ASSISTANT SECRETARY'S DECISION AS
CLARIFIED. SINCE THE ASSISTANT SECRETARY HAS IN EFFECT REVERSED HIS
INITIAL DECISION IN THIS CASE BY WAIVING THE TIME LIMITS ESTABLISHED IN
HIS REGULATIONS AND FINDING THE MATTER IN DISPUTE GRIEVABLE, IT IS CLEAR
THAT THE UNION'S PETITION FOR REVIEW OF THE ASSISTANT SECRETARY'S
INITIAL DISMISSAL OF THE CASE HAS BEEN RENDERED MOOT. ACCORDINGLY, THE
COUNCIL DENIES THE UNION'S PETITION FOR REVIEW.
BY THE COUNCIL.
SINCERELY,
HAROLD D. KESSLER
ACTING EXECUTIVE DIRECTOR
CC: A/SLMR
LABOR
/1/ COLUMBIA BASIN TRADES COUNCIL V. KLEPPE, C.A. NO. 76-1377 (D.D.C.
FEB. 25, 1977).
6 FLRC 893; FLRC NO. 78A-73; NOVEMBER 13, 1978.