Department of Health, Education and Welfare, Social Security Administration (Respondent) and American Federation of Government Employees, Local 1923, AFL-CIO (Complainant)

 



[ v01 p298 ]
01:0298(37)CA
The decision of the Authority follows:


 1 FLRA No. 37
 
 DEPARTMENT OF HEALTH, EDUCATION AND
 WELFARE, SOCIAL SECURITY ADMINISTRATION
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1923, AFL-CIO
 Complainant
 
                                            Assistant Secretary
                                            Case No. 22-08844(CA)
 
                            DECISION AND ORDER
 
    ON JANUARY 10, 1979, ADMINISTRATIVE LAW JUDGE LOUIS SCALZO ISSUED HIS
 RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING
 THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICES
 ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT THE COMPLAINT BE
 DISMISSED IN ITS ENTIRETY.  NO EXCEPTIONS WERE FILED TO THE
 ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
 TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
 NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
 REGULATIONS (44 F.R. 7).  THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR
 THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
 
    THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
 RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
 HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
 HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS
 ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
 JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS
 CASE, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE
 AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
 CONCLUSIONS AND RECOMMENDATION.  /1/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
 NO. 22-08844(CA) BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., MAY 9, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    MR. ALBERT T. SIEMEK, JR.
 
    LABOR RELATIONS SPECIALIST
 
    SOCIAL SECURITY ADMINISTRATION
 
    6401 SECURITY BOULEVARD
 
    ROOM G-314, WEST HIGH RISE BUILDING
 
    BALTIMORE, MARYLAND 21235
 
                            FOR THE RESPONDENT
 
    MR. ALVIN S. LEVY
 
    FOURTH VICE PRESIDENT
 
    AMERICAN FEDERATION OF GOVERNMENT
 
    EMPLOYEES LOCAL 1923, AFL-CIO
 
    ROOM 1-J-21, OPERATIONS BUILDING
 
    6401 SECURITY BOULEVARD
 
    BALTIMORE, MARYLAND 21235
 
                            FOR THE COMPLAINANT
 
    BEFORE:  LOUIS SCALZO
 
                         ADMINISTRATIVE LAW JUDGE
 
                           CASE NO. 22-08844(CA)
 
                      RECOMMENDED DECISION AND ORDER
 
    THIS CASE ARISES UNDER EXECUTIVE ORDER 11491 AS AMENDED (HEREINAFTER
 REFERRED TO AS THE ORDER), AND REGULATIONS OF THE DEPARTMENT OF LABOR,
 OFFICE OF THE ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS, TITLE
 29 C.F.R. PART 203, AS RECENTLY ADOPTED AND AMENDED BY REGULATIONS OF
 THE FEDERAL LABOR RELATIONS AUTHORITY AND FEDERAL SERVICE IMPASSES
 PANEL, TITLE 5, C.F.R. PART 2400 (FEDERAL REGISTER, VOL. 44, NO. 1,
 TUESDAY, JANUARY 2, 1979).  IT WAS INITIATED BY THE FILING OF A
 PRE-COMPLAINT CHARGE ON NOVEMBER 23, 1977 BY LOCAL 1923, AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (HEREINAFTER REFERRED TO AS
 COMPLAINANT OR UNION) AGAINST THE DEPARTMENT OF HEALTH, EDUCATION AND
 WELFARE, SOCIAL SECURITY ADMINISTRATION (HEREINAFTER REFERRED TO AS
 RESPONDENT OR MANAGEMENT).
 
    THE CHARGE ALLEGED VIOLATIONS OF SECTIONS 19(A)(1), (2), AND (6) OF
 THE ORDER BASED UPON A REFUSAL TO REASSIGN MS. BRENDA DAVENPORT, A
 BARGAINING UNIT EMPLOYEE, TO A COMPONENT ON A FLEX-TIME WORK SCHEDULE.
 (RESPONDENT'S EXHIBIT 1).  IT WAS CLAIMED THAT ON JULY 11, 1977, THE
 RESPONDENT HAD AGREED TO EFFECT SUCH A TRANSFER UPON COMPLETION OF
 CERTAIN DISCIPLINARY ACTION THEN PENDING AGAINST HER, BUT THAT
 RESPONDENT HAD FAILED TO LIVE UP TO THIS AGREEMENT.
 
    ON FEBRUARY 27, 1978, THE UNION FILED A COMPLAINT REPEATING
 ALLEGATIONS THAT RESPONDENT'S FAILURE TO ABIDE BY THE AGREEMENT TO
 REASSIGN MS. DAVENPORT TO A COMPONENT ON A FLEX-TIME WORK SCHEDULE
 VIOLATED SECTIONS 19(A)(1), (2) AND (6) OF THE ORDER.  (ASSISTANT
 SECRETARY EXHIBIT 1).  THE COMPLAINT FURTHER ALLEGED THAT AN UNWRITTEN
 MANAGEMENT POLICY NOT TO REASSIGN AN EMPLOYEE DURING PENDENCY OF
 DISCIPLINARY ACTION INITIATED AGAINST SUCH EMPLOYEE, WAS VIOLATIVE OF
 ARTICLE 17, SECTION B, SUBSECTION 5 OF THE COLLECTIVE BARGAINING
 AGREEMENT GOVERNING THE LABOR RELATIONS OF THE PARTIES;  THAT THE POLICY
 NOT TO REASSIGN REPRESENTED A UNILATERAL CHANGE IN POLICIES REFLECTED IN
 ARTICLE 17, SECTION B, SUBSECTION 5, WITHOUT AFFORDING THE COMPLAINANT
 AN OPPORTUNITY TO NEGOTIATE, CONFER THE IMPLEMENTATION OF SUCH
 UNILATERAL CHANGES CONSTITUTED VIOLATIONS OF SECTIONS 19(A)(1), (2) AND
 (6) OF THE ORDER.  THE REGIONAL ADMINISTRATOR DISMISSED THE ALLEGED
 VIOLATION OF SECTION 19(A)(2) AND ORDERED A HEARING WITH RESPECT TO
 ALLEGED VIOLATIONS OF SECTIONS 19(A)(1) AND (6).  (JOINT EXHIBIT 1).
 /2/
 
    FOLLOWING THE FORMAL HEARING AND SUBSEQUENT RECEIPT OF THE
 TRANSCRIPT, THE PARTIES FILED A JOINT MOTION TO MAKE TWENTY-THREE
 CORRECTIONS IN THE HEARING TRANSCRIPT.  THE MOTION IS HEREBY MADE A PART
 OF THE RECORD AND IS GRANTED IN ALL RESPECTS.  /3/
 
                              FINDING OF FACT
 
    THE RECORD DISCLOSED THAT MS. DAVENPORT, A GS-3 CARD PUNCH OPERATOR
 EMPLOYED BY RESPONDENT'S DIVISION OF EARNINGS OPERATIONS, BUREAU OF DATA
 PROCESSING, WAS THE SUBJECT OF A DISCIPLINARY ACTION INITIATED ON OR
 ABOUT MAY 17, 1977.  THE DISCIPLINARY ACTION INVOLVED A PROPOSED THIRTY
 DAY SUSPENSION FOR VARIOUS REASONS, INCLUDING A FAILURE TO REPORT FOR
 WORK ON TIME.  MR. ARNOLD SPIVAK A UNION STEWARD REPRESENTED MS.
 DAVENPORT.
 
    ON OR ABOUT JULY 5, 1977, MR. SPIVAK FILED A SECOND-STEP APPEAL IN
 THE DISCIPLINARY PROCEEDING.  THE SECOND STEP APPEAL FILED WITH MR.
 FRANK DENSUK, DEPUTY DIVISION DIRECTOR, DIVISION OF EARNINGS OPERATIONS,
 INCLUDED A RECOMMENDATION THAT MS. DAVENPORT BE ASSIGNED TO A JOB IN
 WHICH FELX-TIME WORK WAS PERMITTED.  (COMPLAINANT EXHIBIT 3).  THE
 RECOMMENDATION, IN THE FORM OF A REQUEST FOR REASSIGNMENT OF MS.
 DAVENPORT, WAS PRESENTED AS A MITIGATING CIRCUMSTANCE IN EXPLANATION OF
 MS. DAVENPORT'S FAILURE TO REPORT FOR WORK ON TIME.  A BASIS FOR THE
 REQUEST WAS PROVIDED BY MS. DAVENPORT'S PHYSICIAN WHO CHARACTERIZED HER
 CONDITION AS ONE INVOLVING "A GREAT AMOUNT OF ANXIETY WHICH GENERATES
 SEVERE HEADACHES." (COMPLAINANT EXHIBIT 1).  THE RECOMMENDATION WAS
 APPROVED BY THE RESPONDENT'S EMPLOYEE HEALTH SERVICE.  (COMPLAINANT
 EXHIBIT 2).  HOWEVER, THERE WAS NO INDICATION THAT MS. DAVENPORT WAS
 INCAPABLE OF PERFORMING HER JOB OR THAT THE PROPOSED REASSIGNMENT WAS
 URGENT.
 
    ON JULY 11, 1977, MR. SPIVAK MET WITH MR. DENSUK TO DISCUSS THE
 DISCIPLINARY ACTION THEN PENDING AGAINST MS. DAVENPORT.  AT THIS MEETING
 MR. SPIVAK ORALLY RAISED THE REQUEST FOR REASSIGNMENT.  IN THE COURSE OF
 DISCUSSING THE REQUEST, MR. DENSUK ADVISED MR. SPIVAK THAT IT WAS BUREAU
 POLICY NOT TO REASSIGN AN EMPLOYEE WHILE DISCIPLINARY ACTION WAS PENDING
 AGAINST THE EMPLOYEE, BUT THAT HE WOULD MAKE EVERY EFFORT TO EFFECTUATE
 A REASSIGNMENT UPON COMPLETION OF THE PENDING DISCIPLINARY ACTION.  /4/
 MR. SPIVAK WAS ADVISED THAT THE POLICY WAS DESIGNED TO PROVIDE EMPLOYEES
 WITH A FRESH START ON NEW ASSIGNMENTS.
 
    WITHIN A FEW DAYS MR. DENSUK DID ARRANGE TO REASSIGN MS. DAVENPORT
 UPON COMPLETION OF ANY DISCIPLINARY ACTION WHICH MIGHT BE IMPOSED, AND
 HE SO NOTIFIED MR.  SPIVAK.  IT WAS UNDERSTOOD THAT AFTER COMPLETION OF
 THE PENDING DISCIPLINARY ACTION, MS. DAVENPORT WOULD BE DETAILED, AND
 THEN UPON SATISFACTORY PERFORMANCE, REASSIGNED TO A FLEX-TIME POSITION.
 (RESPONDENT'S EXHIBIT 1, TR. 144 AND 182).  MR. SPIVAK ASSENTED TO MR.
 DENSUK'S OFFER AND AGREED TO WITHHOLD FURTHER PROCESSING OF MS.
 DAVENPORT'S REQUEST.  HE WAS THOROUGHLY APPRISED OF THE POLICY TO DEFER
 REASSIGNMENTS UNTIL COMPLETION OF DISCIPLINARY ACTIONS.  HE INTERPOSED
 NO OBJECTION TO THE TERMS SPECIFIED.  /5/
 
    PROCEEDINGS RELATING TO THE PROPOSED DISCIPLINARY ACTION CONTINUED
 WITHOUT INTERRUPTION FOLLOWING THE AGREEMENT OUTLINED.  MR. DENSUK
 AFFIRMED THE THIRTY DAY SUSPENSION.  THEREAFTER, MS. DAVENPORT WAS
 UNSUCCESSFUL IN A SUBSEQUENT APPEAL AND IN A LATER ARBITRATION
 PROCEEDING.  SHE WAS ORDERED TO BEGIN HER PERIOD OF SUSPENSION ON
 OCTOBER 12, 1977, AND WAS ADVISED THAT SHE COULD RETURN TO WORK ON
 NOVEMBER 11, 1977.
 
    ON AUGUST 30, 1977, BEFORE COMMENCEMENT OF THE SUSPENSION, MS.
 DAVENPORT WAS FOUND TO BE IN POSSESSION OF MARIJUANA ON RESPONDENT'S
 PREMISES, AND WAS ISSUED A NOTICE OF VIOLATION.  AN INVESTIGATION
 ENSUED, AND ON SEPTEMBER 6, 1977, MS. DAVENPORT APPRISED MR. SPIVAK OF
 DETAILS RELATING TO THE AUGUST 30TH EPISODE.  /6/ MR. SPIVAK SPOKE TO
 MR.  DENSUK ON OCTOBER 11, OR 12, 1977, AND LEARNED THAT AS OF THESE
 DATES MS. DAVENPORT'S PROPOSED ASSIGNMENT WAS STILL PENDING.  ON
 NOVEMBER 2 AND 9, 1977, MR. SPIVAK WAS INFORMED BY MR. WALTER STATHAM,
 ASSISTANT BUREAU DIRECTOR, BUREAU OF DATA PROCESSING, THAT MS. DAVENPORT
 WOULD BE REASSIGNED.  IN THESE CONVERSATIONS NEITHER MR. SPIVAK NOR
 AGENCY REPRESENTATIVES DISCUSSED THE IMPACT OF THE AUGUST 30TH MARIJUANA
 INCIDENT ON THE PLAN TO REASSIGN MS. DAVENPORT.
 
    ON NOVEMBER 9TH, MR. DENSUK LEARNED THAT A SECOND DISCIPLINARY
 PROCEEDING WOULD BE INITIATED AGAINST MS. DAVENPORT AS A RESULT OF HER
 BEING IN POSSESSION OF MARIJUANA.  /7/ HE CONTACTED HIS SUPERIORS TO
 VERIFY AGENCY POLICY REGARDING DEFERRAL OF REASSIGNMENT UNDER SUCH
 CONDITIONS.  /8/
 
    DURING THE MORNING OF NOVEMBER 10, 1977, MR. DENSUK PHONED MR.
 SPIVAK, AND NOTIFIED HIM THAT SINCE A SECOND DISCIPLINARY ACTION WAS
 PENDING AGAINST MS. DAVENPORT, AGENCY POLICY STILL PRECLUDED
 REASSIGNMENT UPON HER EXPECTED RETURN ON NOVEMBER 11TH.  /9/ THEREAFTER,
 ON NOVEMBER 23, 1977, THE PREVIOUSLY MENTIONED UNFAIR LABOR PRACTICE
 CHARGE WAS FILED, WITH MR.  SPIVAK DRAFTING MOST OF THE CHARGE.  /10/
 
    ON NOVEMBER 25, 1977, MS. DAVENPORT WAS SERVED WITH A NOTICE OF
 PROPOSED SUSPENSION ARISING OUT OF THE AUGUST 30, 1977 MARIJUANA
 POSSESSION AND PRIOR INFRACTIONS.  (RESPONDENT'S EXHIBIT 5).
 THEREAFTER, SHE WAS SUSPENDED DURING THE PERIOD MARCH 13, 1978 THROUGH
 APRIL 11, 1978.  (RESPONDENT'S EXHIBIT 6).  IN THE INTERVENING PERIOD
 FLEX-TIME HAD BEEN INTRODUCED INTO MS. DAVENPORT'S UNIT, THUS MAKING IT
 UNNECESSARY TO REASSIGN HER TO ACCOMPLISH THE OBJECTIVE OF THE ORIGINAL
 AGREEMENT TO REASSIGN.  HOWEVER, A DETAIL TO A DIFFERENT UNIT WAS IN
 FACT ARRANGED FOR MS. DAVENPORT IN RESPONSE TO A REQUEST FROM MR.
 SPIVAK.  (TR. 182-183.  187-189, RESPONDENT'S EXHIBIT 2).
 
                            CONCLUSIONS OF LAW
 
    COUNSEL FOR THE RESPONDENT ARGUES THAT THE COMPLAINANT'S
 PRE-COMPLAINT CHARGE DOES NOT ALLEGE ANY VIOLATIONS OF THE COLLECTIVE
 BARGAINING AGREEMENT OR THE ORDER BASED UPON THE EXISTENCE OF, OR
 IMPLEMENTATION OF, THE UNWRITTEN POLICY RELIED UPON BY RESPONDENTS TO
 DELAY REASSIGNMENT OF MS. DAVENPORT;  AND FURTHER THAT ISSUES RELATING
 THERETO WERE FIRST RAISED IN THE FORMAL COMPLAINT.  /11/
 
    THE PROCEDURES FOR FILING AN UNFAIR LABOR PRACTICE COMPLAINT INCLUDE
 A REQUIREMENT THAT A WRITTEN CHARGE BE FILED BEFORE A COMPLAINT MAY
 ISSUE.  THE PARTIES THE, HAVE THIRTY DAYS TO INFORMALLY RESOLVE THE
 DISPUTE, AFTER WHICH A COMPLAINT MAY BE FILED LIMITED TO THE MATTERS
 RAISED IN THE CHARGE.  SEE 29 C.F.R. 203.2(B)(1).
 
    THE CHARGE HEREIN DOES NOT ALLEGE VIOLATIONS OF THE ORDER BASED ON
 THE UNWRITTEN POLICY BEING IN CONFLICT WITH POLICIES SET OUT IN THE
 COLLECTIVE BARGAINING AGREEMENT;  /12/ OR THE MAKING OF UNILATERAL
 CHANGES IN THE AGREEMENT WITHOUT FIRST NEGOTIATING SUCH CHANGES WITH THE
 UNION;  OR FAILURE TO CARRY OUT THE POLICIES SET FORTH IN THE AGREEMENT.
  THESE ALLEGATIONS INVOLVE SEPARATE EVENTS AND SEPARATE ISSUES REQUIRING
 SEPARATE PRE-COMPLAINT CHARGES.
 
    THE CHARGE HERE MAKES NO REFERENCE TO THE COLLECTIVE BARGAINING
 AGREEMENT.  INSTEAD, THE VIOLATIONS ALLEGED IN THE CHARGE ARE TIED
 EXCLUSIVELY TO THE EXECUTION OF A VERBAL AGREEMENT MADE ON OR ABOUT JULY
 11, 1977, AND THE FAILURE OF RESPONDENT TO EXECUTE THE TERMS OF THE
 VERBAL AGREEMENT.  THEREFORE, ALLEGATIONS IN THE COMPLAINT WHICH OPERATE
 TO CONDEMN;  THE EXISTENCE OF, OR THE IMPLEMENTATION OF, THE UNWRITTEN
 POLICY, MAY NOT BE CONSIDERED PART OF THE UNFAIR LABOR PRACTICE
 COMPLAINT FILED IN THIS CASE.  VETERANS ADMINISTRATION, REGIONAL OFFICE,
 HONOLULU, HAWAII, A/SLMR ;O. 976 (FEBRUARY 2, 1978) SEE ALSO DEFENSE
 GENERAL SUPPLY CENTER A/SLMR NO. 821 (APRIL 7, 1977).
 
    ASSUMING ARGUENDO THAT VIOLATIONS CHARGED IN THE COMPLAINT HAVE BEEN
 PROPERLY PLACED IN ISSUE, SUCH VIOLATIONS WOULD BE SUBJECT TO DISMISSAL
 ON A DIFFERENT GROUND.  THE ASSISTANT SECRETARY HAS HELD THAT ALLEGED
 VIOLATIONS OF A NEGOTIATED AGREEMENT WHICH CONCERN DIFFERING AND
 ARGUABLE INTERPRETATIONS OF SUCH AGREEMENT, AS DISTINGUISHED FROM
 ALLEGED ACTIONS WHICH CONSTITUTE CLEAR, UNILATERAL BREACHES OF THE
 AGREEMENT, ARE NOT DEEMED TO BE VIOLATIVE OF THE ORDER.  IN SUCH CASES
 THE AGGRIEVED PARTY'S REMEDY LIES WITHIN THE GRIEVANCE MACHINERY OF THE
 NEGOTIATED AGREEMENT RATHER THAN THROUGH UNFAIR LABOR PRACTICE
 PROCEDURES.  DEPARTMENT OF THE ARMY, WATERVLIET ARSENAL, WATERVLIET, NEW
 YORK, A/SLMR 624 (MARCH 23, 1976);  AEROSPACE GUIDANCE AND METROLOGY
 CENTER, NEWARK AIR FORCE STATION, NEWARK, OHIO, A/SLMR NO. 677 (JULY 23,
 1976);  DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION,
 WESTERN REGION, A/SLMR NO. 930 (NOVEMBER 7, 1977).
 
    HERE, THE GRAVAMEN OF THE ENTIRE COMPLAINT IS THE CONTENTION THAT THE
 UNWRITTEN POLICY CONFLICTS WITH AND CONTRAVENES THE COLLECTIVE
 BARGAINING AGREEMENT.  ACCORDINGLY, SINCE THE ISSUES SET FORTH IN THE
 COMPLAINT INVOLVE ESSENTIALLY DIFFERING INTERPRETATIONS OF THE PARTIES'
 RIGHTS AND OBLIGATIONS UNDER THEIR NEGOTIATED AGREEMENT, AND AS
 RESPONDENT'S CONDUCT DID NOT CONSTITUTE A CLEAR UNILATERAL BREACH OF
 THAT AGREEMENT, THE COMPLAINT MUST BE DISMISSED.
 
    ALTHOUGH A BASIS FOR DISMISSAL OF THE COMPLAINT HAS BEEN SHOWN, IT
 SHOULD BE NOTED THAT THE VERBAL AGREEMENT ENTERED INTO BY THE PARTIES ON
 JULY 11, 1977, INCLUDED A SPECIFIC CONDITION WHICH NECESSARILY OPERATED
 TO PRECLUDE REASSIGNMENT DURING THE PENDENCY OF DISCIPLINARY
 PROCEEDINGS.  THE RECORD REFLECTS NO BASIS FOR A FINDING THAT THE
 RESPONDENT UNCONDITIONALLY AGREED TO REASSIGN MS. DAVENPORT UPON
 COMPLETION OF HER FIRST PERIOD OF SUSPENSION;  AND THE EXPLANATION OF
 THE POLICY, MADE TO MR. SPIVAK BY MR. DENSUK, EVIDENCES THE FACT THAT
 ANY DISCIPLINARY ACTION WOULD HAVE HAD TO BE COMPLETED BEFORE
 REASSIGNMENT, AND NOT JUST COMPLETION OF THE DISCIPLINARY ACTION PENDING
 AT THE TIME THAT THE PARTIES ENTERED INTO THE VERBAL AGREEMENT.  MR.
 SPIVAK AGREED TO THIS ARRANGEMENT AND ITS IMPLICATIONS;  THAT IS, THE
 POSSIBILITY OF DELAY IN EFFECTING REASSIGNMENT BROUGHT ABOUT BY MS.
 DAVENPORT'S PURSUIT OF HER APPEAL RIGHTS, AND THE FURTHER POSSIBILITY OF
 DELAY POSED BY ANY ADDITIONAL DISCIPLINARY ACTION WHICH MIGHT BE BROUGHT
 AGAINST HER.
 
    THE RECORD HERE SHOWS THAT AS SOON AS THE RESPONDENT BECAME AWARE OF
 THE PENDENCY OF A SECOND DISCIPLINARY PROCEEDING AND ITS IMPACT UPON
 PRIOR PLANS TO REASSIGN MS. DAVENPORT, RESPONDENT, THROUGH MR. DENSUK,
 APPRISED MR. SPIVAK.  PRIOR TO SUCH NOTIFICATION, THE MARIJUANA INCIDENT
 WAS UNDER INVESTIGATION;  AND THE RECORD REFLECTS THAT IT DID NOT APPEAR
 THAT THE INCIDENT WOULD IN FACT RESULT IN DISCIPLINARY ACTION UNTIL JUST
 PRIOR TO MS. DAVENPORT'S ANTICIPATED RETURN ON NOVEMBER 11, 1977.  /13/
 THE COMPLAINANT INTRODUCED NO EVIDENCE SHOWING THAT THE SECOND
 DISCIPLINARY ACTION WAS ACTUALLY CONTEMPLATED BY MR. DENSUK OR MR.
 STATHAM AT THE TIME THAT MR. SPIVAK WAS ADVISED IN EARLY OCTOBER AND
 EARLY NOVEMBER 1977, THAT REASSIGNMENT WOULD TAKE EFFECT AS PLANNED.
 THERE IS NO EVIDENCE THAT REPRESENTATIVES OF THE RESPONDENT MISLED
 EITHER MR.  SPIVAK OR MS. DAVENPORT WITH RESPECT TO THE REASSIGNMENT.
 IT APPEARED THAT THE DELAY IN REASSIGNMENT WAS CAUSED SOLELY BY MS.
 DAVENPORT'S INVOLVEMENT IN A DISCIPLINARY PROCEEDING BASED PRIMARILY
 UPON THE MARIJUANA POSSESSION CHARGE OCCURRING NEARLY SEVEN WEEKS AFTER
 THE VERBAL AGREEMENT.
 
    AS NOTED THE RECORD REFLECTS THAT UPON FORMULATION OF A DETERMINATION
 THAT SEPARATE DISCIPLINARY PROCEEDINGS WOULD BE BASED UPON THE AUGUST
 30TH INCIDENT, MR. SPIVAK WAS PROMPTLY INFORMED.  THERE WAS NO SHOWING
 OF DELAY, OR SUBSEQUENT AGREEMENT BY RESPONDENT TO REASSIGN DESPITE
 RESPONDENT'S KNOWLEDGE OF THE AUGUST 30TH EPISODE.  IT WAS CLEAR FROM
 THE RECORD THAT PRIOR TO TERMINATION OF PLANS TO INITIATE A SEPARATE
 DISCIPLINARY ACTION IN NOVEMBER, THE UNWRITTEN POLICY WAS NOT APPLICABLE
 TO THE CASE.  HOWEVER, THE POLICY BECAME APPLICABLE WITH THE DECISION TO
 INITIATE DISCIPLINARY ACTION BASED UPON THE POSSESSION CHARGE.  SINCE
 THE SUBSEQUENT REFUSAL TO REASSIGN WAS IN CONFORMITY WITH THE CONDITION
 INCLUDED IN THE VERBAL AGREEMENT OF THE PARTIES, THERE WAS NO OBLIGATION
 TO BARGAIN OVER THE IMPACT AND IMPLEMENTATION OF THE DECISION NOT TO
 REASSIGN.  FURTHERMORE, THIS OBLIGATION COULD NOT EXIST IN THE CONTEXT
 OF THIS CASE INASMUCH AS THE PARTIES HAD, ON OR ABOUT JULY 11, 1977,
 REACHED AGREEMENT ON THE TERMS RELATIVE TO THE REASSIGNMENT REQUESTED ON
 BEHALF OF MS. DAVENPORT.
 
    THIS IS NOT A CASE INVOLVING AN UNEQUIVOCAL AGREEMENT TO REASSIGN MS.
 DAVENPORT ON NOVEMBER 11, 1977.  IT IS NOT ONE WHERE THE RESPONDENT
 AGREED TO WAIVE THE CONDITION PRECLUDING REASSIGNMENT DURING THE
 PENDENCY OF DISCIPLINARY ACTION, NOR IS IT ONE INVOLVING AN
 UNJUSTIFIABLE EXTENSION OF THE DATE OF REASSIGNMENT.  THE RIGHTS AND
 OBLIGATIONS OF THE PARTIES WITH RESPECT TO REASSIGNMENT WERE UNDERSTOOD
 BY THE PARTIES ON OR ABOUT JULY 11, 1977 WHEN THE VERBAL AGREEMENT WAS
 REACHED, AND BUT FOR THE AUGUST 30TH INCIDENT RESPONDENT WOULD HAVE
 REASSIGNED MS.  DAVENPORT AS ORIGINALLY PLANNED. IN FACT, UPON
 COMPLETION OF THE SECOND DISCIPLINARY PROCEEDING, MS. DAVENPORT WAS
 DETAILED AS ORIGINALLY AGREED.
 
    THUS, IT IS APPARENT FROM THE FOREGOING THAT EVEN IF THE ALLEGED
 REFUSAL TO REASSIGN MS. DAVENPORT IN ACCORDANCE WITH A PRIOR VERBAL
 AGREEMENT IS DEEMED TO BE A SUFFICIENT BASIS FOR THE FILING OF A FORMAL
 COMPLAINT BASED UPON VIOLATIONS OF SECTIONS 19(A)(1) AND (6) OF THE
 ORDER, SUCH ALLEGATIONS WOULD BE SUBJECT TO DISMISSAL IN THIS CASE ON
 THE GROUND THAT THE COMPLAINANT FAILED TO PROVE BY A PREPONDERANCE OF
 THE EVIDENCE THAT SUCH REFUSAL TO REASSIGN WAS IN FACT VIOLATIVE OF
 SECTIONS 19(A)(1) AND (6) OF THE ORDER.
 
                              RECOMMENDATION
 
    HAVING FOUND THAT ALLEGATIONS IN THE COMPLAINT RELATING TO THE
 EXISTENCE OF, OR THE IMPLEMENTATION OF, THE UNWRITTEN POLICY MAY NOT BE
 CONSIDERED PART OF THE UNFAIR LABOR PRACTICE COMPLAINT FILED IN THIS
 CASE;  AND HAVING FOUND THAT THE ISSUES SET FORTH IN THE COMPLAINT
 INVOLVE ESSENTIALLY DIFFERING INTERPRETATIONS OF THE RIGHTS AND
 OBLIGATIONS OF THE PARTIES UNDER THEIR NEGOTIATED AGREEMENT, AS
 DISTINGUISHED FROM ALLEGED UNILATERAL BREACHES OF THE AGREEMENT;  AND
 HAVING FOUND THAT THE COMPLAINANT HAS NOT SHOWN BY A PREPONDERANCE OF
 THE EVIDENCE THAT THE RESPONDENT HAS ENGAGED IN CONDUCT VIOLATIVE OF
 SECTIONS 19(A)(1) AND (6) OF THE ORDER;  I RECOMMEND THAT THE COMPLAINT
 HEREIN BE DISMISSED IN ITS ENTIRETY.
 
                               LOUIS SCALZO
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  JANUARY 10, 1979
 
    WASHINGTON, DC
 
    LS:AG
 
    /1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE INSTANT CASE IS DECIDED SOLELY ON THE BASIS
 OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
 MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
 RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
 UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
 
    /2/ THE REGIONAL ADMINISTRATOR'S LETTER OF DISMISSAL DOES NOT
 SPECIFICALLY DISMISS ALLEGATIONS IN THE COMPLAINT RELATING TO THE
 UNWRITTEN POLICY.
 
    /3/ THE FOLLOWING ADDITIONAL ERRORS IN THE HEARING TRANSCRIPT ARE
 NOTED:  PAGE 7, LINE 6-- "THE" SHOULD BE "THEY";  PAGE 15, LINE 1--
 "POLICY" SHOULD BE INSERTED AFTER "UNWRITTEN";  PAGE 35, LINE 13--
 "ADJUST" SHOULD BE CHANGED TO "ADDRESS";  AND PAGE 119, LINE 18-- "ADC"
 SHOULD BE CHANGED TO "AGENCY."
 
    /4/ IT WAS ESTABLISHED THAT THE POLICY IN QUESTION WAS UNWRITTEN,
 THAT IT HAD BEEN IN EFFECT FOR TWENTY-SEVEN YEARS, AND THAT IT APPLIED
 TO ALL REASSIGNMENTS.
 
    THE REQUEST WAS GOVERNED BY ARTICLE 13, SECTION K OF A COLLECTIVE
 BARGAINING AGREEMENT WHICH BECAME EFFECTIVE ON SEPTEMBER 24, 1974.
 (JOINT EXHIBIT 2).  THE PROVISIONS OF THE AGREEMENT REQUIRED MANAGEMENT
 TO GIVE PROMPT AND THOROUGH CONSIDERATION TO SUCH REQUESTS, TAKING INTO
 ACCOUNT ANY MEDICAL OPINION.
 
    /5/ THE RECORD ALSO REFLECTS THAT MR. DENSUK ALSO OFFERED TO CHANGE
 MS. DAVENPORT'S SHIFT TO PROVIDE A LATER STARTING TIME DURING THE
 PENDENCY OF THE APPEAL RELATING TO THE PROPOSED DISCIPLINARY ACTION.
 
    /6/ MR. SPIVAK LATER REPRESENTED MS. DAVENPORT IN CONNECTION WITH
 DISCIPLINARY PROCEEDINGS BASED ON THE INCIDENT.
 
    /7/ MS. DAVENPORT'S SUSPENSION COMMENCED ON OCTOBER 12, 1977 AND
 CONTINUED THROUGH NOVEMBER 10, 1977.
 
    /8/ THE DIVISION DIRECTOR ASCERTAINED THAT THERE WERE NO MEDICAL
 FACTORS MILITATING AGAINST DEFERRING REASSIGNMENT UNTIL TERMINATION OF
 THE SECOND DISCIPLINARY PROCEEDING.
 
    /9/ AT THE TIME OF THE REFUSAL TO REASSIGN, REASSIGNMENTS FOR HEALTH
 REASONS WERE GOVERNED BY THE PROVISIONS OF ARTICLE 13, SECTION Q OF A
 LATER COLLECTIVE BARGAINING AGREEMENT WHICH BECAME EFFECTIVE ON
 SEPTEMBER 15, 1977.  (JOINT EXHIBIT 3).  HOWEVER, THE PARTIES STIPULATED
 THAT THE DIFFERENCES BETWEEN THIS AGREEMENT AND ITS PRECURSOR (JOINT
 EXHIBIT 2), WERE NOT SIGNIFICANT WITHIN THE CONTEXT OF THIS CASE.  (TR.
 103).
 
    IT WAS CLEARLY ESTABLISHED THAT THE APPLICATION OF THE UNWRITTEN
 POLICY IN A SITUATION INVOLVING A REASSIGNMENT BASED UPON MEDICAL
 CONSIDERATIONS CONSTITUTED A CASE OF FIRST IMPRESSION FOR MANAGEMENT TO
 DECIDE.
 
    /10/ MR. SPIVAK ACKNOWLEDGED THAT FAILURE TO ALLEGE IN THE
 PRE-COMPLAINT CHARGE, FACTS PERTAINING TO AN UNFAIR LABOR PRACTICE BASED
 UPON IMPLEMENTATION OF THE UNWRITTEN POLICY REGARDING REASSIGNMENTS
 "PROBABLY WAS A MISTAKE ON HIS PART." (TR. 74).  IN THIS REGARD THE
 CHARGE WAS SIGNED BY MR. HAROLD ROOT, PRESIDENT OF THE LOCAL.  MR. ROOT
 TESTIFIED THAT HE WAS, "VERY DISCOURAGED TO HEAR THAT SOME