General Services Administration, National Personnel Records Center, A/SLMR No. 1174

 



[ v01 p832 ]
01:0832(96)CA
The decision of the Authority follows:


 1 FLRA No. 96
                                            AUGUST 10, 1979
 
 MS. JANICE K. MENDENHALL
 CONTROLLER-- DIRECTOR OF
 ADMINISTRATION
 GENERAL SERVICES ADMINISTRATION
 WASHINGTON, D.C.  20405
 
                      RE:  GENERAL SERVICES ADMINISTRATION, NATIONAL 
                           PERSONNEL RECORDS CENTER, A/SLMR No. 1174, 
                           Case No. 0-AS-6
 
 DEAR MS. MENDENHALL:
 
    THE AUTHORITY HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW AND
 REQUEST FOR A STAY OF THE ASSISTANT SECRETARY'S DECISION, AND THE
 UNION'S OPPOSITION THERETO, IN THE ABOVE-ENTITLED CASE.
 
    IN THIS CASE, THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 2928 (THE UNION) FILED AN UNFAIR LABOR PRACTICE COMPLAINT
 AGAINST THE GENERAL SERVICES ADMINISTRATION, NATIONAL PERSONNEL RECORDS
 CENTER (THE ACTIVITY).  THE COMPLAINT, AS AMENDED, ALLEGED THAT THE
 ACTIVITY VIOLATED SECTION 19(A)(1) AND (2) OF THE ORDER BY PROHIBITING
 AN EMPLOYEE FROM ACTING SIMULTANEOUSLY AS AN EQUAL EMPLOYMENT
 OPPORTUNITY (EEO) COUNSELOR AND AS A UNION OFFICER.
 
    THE ASSISTANT SECRETARY ADOPTED THE FINDINGS, CONCLUSIONS AND
 RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE (ALJ), WHO CONCLUDED
 THAT THE ACTIVITY VIOLATED SECTION 19(A)(1) OF THE ORDER BY PROHIBITING
 THE EMPLOYEE FROM ACTING SIMULTANEOUSLY AS A PART-TIME EEO COUNSELOR AND
 AS A UNION OFFICER.  /1/ IN REACHING THIS DETERMINATION, THE ALJ
 REJECTED THE ACTIVITY'S ARGUMENT THAT THE HOLDING OF ANY UNION OFFICE,
 REGARDLESS OF ITS DUTIES, WOULD IN ITSELF "RESULT IN A CONFLICT OR
 APPARENT CONFLICT OF INTEREST OR OTHERWISE BE INCOMPATIBLE WITH . . .
 THE OFFICIAL DUTIES OF" AN EEO COUNSELOR WITHIN THE MEANING OF SECTION
 1(B) OF THE ORDER.  IN THIS REGARD, HE STATED:
 
    IN MY VIEW THE DUTIES OF THE PARTICULAR (U)NION OFFICE IN QUESTION
 MUST BE EXAMINED TO
 
    DETERMINE WHETHER ANY CONFLICT WOULD ARISE UNDER (S)ECTION 1(B) OF
 THE ORDER IF THE OFFICER
 
    SIMULTANEOUSLY SERVED AS EEO COUNSELOR.  IN (THE INSTANT) CASE, (THE
 EMPLOYEE'S) DUTIES AS
 
    ASSISTANT SECRETARY-TREASURER-RECORDED INVOLVED ONLY THE INTERNAL
 MANAGEMENT OF THE (U)NION--
 
    PRIMARILY KEEPING THE MINUTES AND MEMBERSHIP ROLLS.  I AM AWARE OF
 (THE ACTIVITY'S) CONTENTION
 
    THAT ALL OFFICERS IN THIS (U)NION HAD THE AUTHORITY TO HANDLE
 GRIEVANCES ON BEHALF OF
 
    EMPLOYEES.  THE EXISTING PRESIDENT OF THE (U)NION TESTIFIED THAT, IN
 HIS OPINION, IF AN
 
    EMPLOYEE DEMANDED TO BE REPRESENTED BY A PARTICULAR (U)NION OFFICER
 IN A GRIEVANCE PROCEEDING,
 
    THE OFFICER WOULD BE REQUIRED TO REPRESENT THAT EMPLOYEE.  EVEN IF I
 WERE CONVINCED THAT THIS
 
    WAS TRUE, I WOULD BE GUIDED BY THE ACTUAL POLICY AND PRACTICE OF THE
 (U)NION RATHER THAN ANY
 
    AUTHORITY TECHNICALLY VESTED IN THE OFFICERS.  THE ESTABLISHED
 PRACTICE WAS THAT ALL
 
    GRIEVANCES WERE HANDLED BY THE STEWARDS OR THE CHIEF SHOP STEWARD,
 AND ONLY ON RARE OCCASIONS
 
    WOULD THE (U)NION PRESIDENT BECOME INVOLVED.  THE OTHER OFFICERS DID
 NOT PARTICIPATE.  IN
 
    ADDITION, (THE EMPLOYEE) CLEARLY HAD NO INTENTION OF EVER HANDLING A
 GRIEVANCE.  I DO NOT
 
    THINK THAT (THE EMPLOYEE) WOULD EVER HAVE PERFORMED ANY SORT OF
 REPRESENTATIONAL DUTIES IN HER
 
    (U)NION JOB.  AT BEST, THE CHANCES OF HER DOING SO WOULD HAVE BEEN
 REMOTE.  THUS (THE
 
    ACTIVITY) HAS IMPROPERLY PORTRAYED (THE EMPLOYEE'S) POSITION WITH THE
 (U)NION AS BEING AN
 
    ADVERSARY OF MANAGEMENT AND AN ADVOCATE FOR EMPLOYEES.
 
    SINCE (THE EMPLOYEE'S) POSITION INVOLVING THE INTERNAL MANAGEMENT OF
 THE (U)NION DID NOT
 
    RESULT IN ANY CONFLICT, OR APPARENT CONFLICT OF INTEREST OR
 INCOMPATIBILITY WITHIN THE MEANING
 
    OF (S)ECTION 1(B), IT FOLLOWS THAT SHE SHOULD NOT HAVE BEEN
 PROHIBITED FROM HOLDING HER
 
    (U)NION OFFICE WHILE ACTING AS AN EEO COUNSELOR.  I MUST CONCLUDE AND
 HOLD THAT (THE
 
    ACTIVITY'S) ACTION INTERFERED WITH HER (S)ECTION 1(A) RIGHT TO
 PARTICIPATE IN THE MANAGEMENT
 
    OF THE (U)NION AND CONSTITUTED A VIOLATION OF (S)ECTION 19()(1) OF
 THE ORDER . . .  /2/
 
    ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THE ACTIVITY TO CEASE
 AND DESIST FROM PROHIBITING THE EMPLOYEE FROM SIMULTANEOUSLY HOLDING THE
 POSITIONS OF EEO COUNSELOR AND ASSISTANT SECRETARY-TREASURER-RECORDER
 FOR THE UNION, AND TO TAKE CERTAIN AFFIRMATIVE ACTIONS.
 
    IN THE ACTIVITY'S PETITION FOR REVIEW, IT IS ALLEGED THAT THE
 ASSISTANT SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS IN THAT IT
 "WAS BASED ON ERRONEOUS CONCLUSIONS (OF THE ALJ WHICH WERE) NOT
 REASONABLY SUPPORTED BY THE EVIDENCE" IN THE RECORD.  IN PARTICULAR, IT
 IS ALLEGED THAT THE ALJ'S CONCLUSION THAT THE EMPLOYEE WAS NOT A "TRUE
 ADVERSARY OF MANAGEMENT BECAUSE SHE PERFORMED ONLY INTERNAL UNION
 BUSINESS," AND HIS CONCLUSION THAT THE EMPLOYEE "WAS NOT AN ADVERSARY OF
 MANAGEMENT BECAUSE SHE HAD NO INTENTION OF REPRESENTING EMPLOYEES," WERE
 UNSUPPORTED BY THE EVIDENCE IN THE RECORD.  IT IS FURTHER ALLEGED THAT
 THE ASSISTANT SECRETARY'S DECISION "PRESENTS A MAJOR POLICY ISSUE AS TO
 THE MEANING AND APPLICATION OF SECTION 1(B) OF THE ORDER," IN THAT IT
 RAISES THE QUESTION AS TO "WHETHER AND UNDER WHAT CIRCUMSTANCES ANY
 (U)NION OFFICER IS IN AN ADVERSARY RELATIONSHIP TO (M)ANAGEMENT."
 
    IN THE AUTHORITY'S OPINION, THE AGENCY'S PETITION FOR REVIEW OF THE
 ASSISTANT SECRETARY'S DECISION DOES NOT MEET THE REQUIREMENTS OF SECTION
 2400.2 OF THE AUTHORITY'S TRANSITION RULES WHICH INCORPORATES BY
 REFERENCE 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 THE 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.  IN THIS REGARD, THE
 APPEAL FAILS TO SET FORTH ANY MATERIAL EVIDENCE THAT THE ASSISTANT
 SECRETARY DID NOT CONSIDER IN REACHING HIS DECISION, BUT INSTEAD
 CONSTITUTES ESSENTIALLY DISAGREEMENT WITH THE ASSISTANT SECRETARY'S
 CONCLUSION, BASED UPON THE ALJ'S FACTUAL DETERMINATIONS, AND THEREFORE
 PROVIDES NO BASIS FOR REVIEW.
 
    AS TO THE ALLEGATION THAT THE ASSISTANT SECRETARY'S DECISION PRESENTS
 A MAJOR POLICY ISSUE CONCERNING THE CIRCUMSTANCES UNDER WHICH A UNION
 OFFICER IS AN ADVERSARY OF MANAGEMENT, IN THE AUTHORITY'S VIEW NO BASIS
 FOR REVIEW IS THEREBY PRESENTED.  IN THIS REGARD, THE AUTHORITY NOTES
 PARTICULARLY THAT THE ASSISTANT SECRETARY ADOPTED THE ALJ'S FACTUAL
 DETERMINATION THAT THE EMPLOYEE'S UNION OFFICE IN THE INSTANT CASE
 INVOLVED ONLY THE INTERNAL MANAGEMENT OF THE UNION AND DID NOT INVOLVE
 THE HANDLING OF GRIEVANCES OR OTHER REPRESENTATIONAL DUTIES, AND
 THEREFORE, UNDER THESE CIRCUMSTANCES, DID NOT RESULT IN ANY CONFLICT OR
 APPARENT CONFLICT OF INTEREST WITHIN THE MEANING OF SECTION 1(B) OF THE
 ORDER.  ACCORDINGLY, THE ALLEGATION THAT THE EMPLOYEE, AS A UNION
 OFFICER, WAS AN ADVERSARY OF MANAGEMENT HEREIN CONSTITUTES ESSENTIALLY A
 MERE DISAGREEMENT WITH THE ASSISTANT SECRETARY'S CONCLUSION, BASED UPON
 THE ALJ'S FACTUAL DETERMINATIONS, THAT THE ACTIVITY VIOLATED SECTION
 19(A)(1) OF THE ORDER BY PROHIBITING THE EMPLOYEE HEREIN FROM ACTING
 SIMULTANEOUSLY AS A PART-TIME EEO COUNSELOR AND AS A UNION OFFICER, AND
 THUS PROVIDES NO BASIS FOR AUTHORITY REVIEW.
 
    SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
 AND CAPRICIOUS OR PRESENT A MAJOR POLICY ISSUE, THE APPEAL FAILS TO MEET
 THE REQUIREMENTS FOR REVIEW AS PROVIDED IN SECTION 2400.2 OF THE
 AUTHORITY'S TRANSITION RULES WHICH INCORPORATES BY REFERENCE SECTION
 2411.12 OF THE COUNCIL'S RULES.  ACCORDINGLY, THE PETITION FOR REVIEW IS
 HEREBY DENIED, AND THE REQUEST FOR A STAY IS ALSO DENIED.  /3/
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
    CC:  B. BRUNO
 
    AFGE
 
    REGION 7
 
    FLRA
 
    /1/ THE ASSISTANT SECRETARY, ALSO IN AGREEMENT WITH THE ALJ,
 DISMISSED THE SECTION 19(A)(2) ALLEGATION OF THE COMPLAINT.  THIS
 DETERMINATION HAS NOT BEEN APPEALED TO THE AUTHORITY AND THEREFORE IS
 NOT AT ISSUE HEREIN.
 
    /2/ THE ALJ FURTHER STATED THAT HE "NEED NOT DECIDE WHETHER A (U)NION
 OFFICER WHO COULD PROPERLY BE CONSIDERED A TRUE ADVERSARY OF MANAGEMENT
 WOULD BE PRECLUDED BY (SECTION) 1(B) FROM SIMULTANEOUSLY SERVING AS AN
 EEO COUNSELOR."
 
    /3/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS 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 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 ORDER.