Department of Agriculture, Forest Service, Siuslaw National Forest, Corvallis, Oregon (Activity) and National Federation of Federal Employees, Local 454 (Applicant) 

 



[ v03 p272 ]
03:0272(42)GA
The decision of the Authority follows:


 3 FLRA No. 42
 
 DEPARTMENT OF AGRICULTURE
 U.S. FOREST SERVICE
 SIUSLAW NATIONAL FOREST
 CORVALLIS, OREGON
 Activity
 
 and
 
 NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
 LOCAL 454
 Applicant
 
                                            Assistant Secretary
                                            Case No. 71-5004(GA)
 
                            DECISION AND ORDER
 
    ON SEPTEMBER 10, 1979, THE ADMINISTRATIVE LAW JUDGE ISSUED HIS
 RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING
 THAT THE ISSUE RAISED IN GRIEVANCE NO. 2 WAS PREVIOUSLY RAISED IN AN
 UNFAIR LABOR PRACTICE COMPLAINT AND THUS SECTION 19(D) OF THE ORDER
 BARRED SUCH GRIEVANCE FROM CONSIDERATION UNDER THE GRIEVANCE/ARBITRATION
 PROCEDURE OF THE PARTIES NEGOTIATED AGREEMENT.  HE CONCLUDED AS WELL
 THAT ALL THE OTHER GRIEVANCES WERE ARBITRABLE UNDER THE PARTIES'
 NEGOTIATED AGREEMENT, AND THAT THE ARBITRATOR SHOULD DECIDE, AS A
 THRESHOLD QUESTION, WHETHER THESE GRIEVANCES WERE TIMELY FILED WITHIN
 THE MEANING OF THE AGREEMENT.  THUS, HE CONCLUDED THAT ALL GRIEVANCES
 EXCEPT NO. 2 BE FOUND TO BE SUBJECT TO THE ARBITRATION PROCEDURE SET
 FORTH IN THE PARTIES' NEGOTIATED AGREEMENT.  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 RULES AND REGULATIONS
 (45 F.R. 3482, JANUARY 17, 1980).  THE AUTHORITY CONTINUES TO BE
 RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN
 SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT STATUTE (92
 STAT. 1215).
 
    THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S 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 THE SUBJECT
 CASE, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S
 FINDINGS, CONCLUSIONS AND RECOMMENDATION.  /1/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT ALL GRIEVANCES EXCEPT NO. 2 ARE SUBJECT TO
 THE ARBITRATION PROCEDURE SET FORTH IN THE PARTIES NEGOTIATED AGREEMENT.
 
    ISSUED, WASHINGTON, D.C., MAY 28, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON W. APPLEWHAITE, MEMBER
 
    WILLIAM J. DUGGAN
 
    EMPLOYEE RELATIONS SPECIALIST
 
    U.S. FOREST SERVICE
 
    P. O. BOX 3623
 
    PORTLAND, OREGON 97208
 
                             FOR THE ACTIVITY
 
    P. J. HEATH
 
    PRESIDENT, LOCAL 454
 
    NATIONAL FEDERATION OF FEDERAL EMPLOYEES
 
    P. O. BOX 726
 
    CORVALLIS, OREGON 97330
 
                             FOR THE APPLICANT
 
    CATHERINE WAELDER, ESQUIRE
 
    NATIONAL FEDERATION OF FEDERAL EMPLOYEES
 
    1016 16TH STREET, N.W.
 
    WASHINGTON, D.C.  20036
 
    (ON THE BRIEF)
 
    BEFORE:  GARVIN LEE OLIVER
 
                         ADMINISTRATIVE LAW JUDGE
 
                      RECOMMENDED DECISION AND ORDER
 
    THIS IS A PROCEEDING ON AN APPLICATION FOR DECISION ON GRIEVABILITY
 OR ARBITRABILITY FILED PURSUANT TO SECTION 13(D) OF EXECUTIVE ORDER
 11491, AS AMENDED, AND 29 C.F.R.PART 205(1975) BY THE NATIONAL
 FEDERATION OF FEDERAL EMPLOYEES, LOCAL 454 (APPLICANT) CHALLENGING A
 DETERMINATION BY THE DEPARTMENT OF AGRICULTURE, U.S. FOREST SERVICE,
 SIUSLAW NATIONAL FOREST, CORVALLIS, OREGON (ACTIVITY) THAT SEVEN
 GRIEVANCES FILED BY THE APPLICANT WERE NOT ARBITRABLE UNDER THE PARTIES'
 NEGOTIATED AGREEMENT.
 
    PURSUANT TO A NOTICE OF HEARING ISSUED BY THE REGIONAL DIRECTOR,
 FEDERAL LABOR RELATIONS AUTHORITY, REGION 9, SAN FRANCISCO, CALIFORNIA,
 A HEARING ON THE APPLICATION WAS CONDUCTED AT CORVALLIS, OREGON.  THE
 PARTIES WERE REPRESENTED AND AFFORDED FULL OPPORTUNITY TO BE HEARD,
 ADDUCE RELEVANT EVIDENCE, EXAMINE AND CROSS-EXAMINE WITNESSES, AND
 PRESENT ORAL ARGUMENT, AND BRIEFS.
 
    BASED ON THE ENTIRE RECORD, INCLUDING THE EXHIBITS AND OTHER RELEVANT
 EVIDENCE ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS OF FACT,
 CONCLUSIONS, AND RECOMMENDATIONS.
 
                     FINDINGS OF FACT AND CONCLUSIONS
 
    1.  THE APPLICANT AND THE ACTIVITY WERE PARTIES TO A NEGOTIATED
 AGREEMENT, EFFECTIVE JULY 7, 1976 FOR A TERM OF TWO YEARS, WHICH WAS IN
 EFFECT AT ALL MATERIAL TIMES HEREIN.
 
    2.  ARTICLE 8.1 OF THE AGREEMENT PROVIDED THAT, "A GRIEVANCE MAY BE
 UNDERTAKEN BY THE LOCAL, AN EMPLOYEE, OR A GROUP OF EMPLOYEES OVER THE
 INTERPRETATION, APPLICATION, OR VIOLATION OF ANY MATTER WHICH IS
 CONTAINED WITHIN THIS AGREEMENT OR WITHIN PUBLISHED AGENCY PERSONNEL
 POLICY;  WORKING CONDITIONS AND WORKING ENVIRONMENT;  OR RELATIONSHIPS
 WITH AGENCY SUPERVISORS AND OFFICIALS.
 
    3.  ARTICLE 8.1(A) PROVIDED THAT THE "GRIEVANCE PROCEDURE DOES NOT
 APPLY TO CASES INVOLVING DISCRIMINATION COMPLAINTS, CLASSIFICATION
 APPEALS, ADVERSE ACTIONS, REDUCTIONS-IN-FORCE, OR OTHER SITUATIONS FOR
 WHICH ALTERNATIVE APPEALS PROCEDURES ARE ESTABLISHED BY LAW OR
 REGULATION."
 
    4.  ARTICLE 8.1(B) PROVIDED THAT "THE EMPLOYEE SHALL ATTEMPT TO
 RESOLVE THE GRIEVANCE DIRECTLY WITH HIS OR HER IMMEDIATE SUPERVISOR
 WITHIN FIFTEEN (15) WORKING DAYS OF THE ALLEGED INCIDENT OR PROBLEM ON
 WHICH THE GRIEVANCE IS BASED."
 
    5.  ARTICLE 8.2 PROVIDED THAT, "FAILURE OF THE EMPLOYEE TO MEET THE
 TIME LIMITS SPECIFIED AT EACH STEP WITHOUT REASONABLE JUSTIFICATION
 ENTITLES THE EMPLOYER TO REFUSE TO CONSIDER THE GRIEVANCE.  ALL TIME
 LIMITS MAY BE EXTENDED BY MUTUAL AGREEMENT BETWEEN THE GRIEVANT AND THE
 EMPLOYER."
 
    6.  ARTICLE 8.1(C) PROVIDED THAT, "IF NOT SATISFIED WITH THE CHIEF'S
 DECISION, THE EMPLOYEE MAY ELECT TO SUBMIT THE GRIEVANCE TO ARBITRATION
 FOLLOWING THE PROCEDURES IN ARTICLE IX."
 
    7.  ARTICLE 9.1 PROVIDED THAT, "ARBITRATION CONSISTENT WITH
 APPLICABLE REGULATIONS IS AN ACCEPTABLE CHANNEL FOR SETTLING DISPUTES
 RELATIVE TO INTERPRETATION OR APPLICATION OF THIS AGREEMENT."
 
    8.  THIS MATTER AROSE AS A RESULT OF THE TERMINATION OF UNIT EMPLOYEE
 WILLIAM FRIDAY EFFECTIVE FEBRUARY 21, 1978, AS ORDERED BY LETTER OF THE
 EMPLOYMENT OFFICER DATED FEBRUARY 15, 1978.  (COMPLAINANT'S EX. C-4).
 
    9.  AN EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT RELATING TO MR.
 FRIDAY'S DISCHARGE WAS INITIATED IN APRIL 1978.  (RESPONDENT'S EX. 14).
 A HEARING HAS BEEN REQUESTED ON THE COMPLAINT.  (RESPONDENT'S EX. 19).
 
    10.  ON MAY 10, 1978 AN APPEAL PURSUANT TO PART 752, SUBPART B OF THE
 CIVIL SERVICE REGULATIONS WAS SUBMITTED TO THE FEDERAL EMPLOYEE APPEALS
 AUTHORITY (FEAA) ON BEHALF OF MR. FRIDAY RELATING TO THE REMOVAL ACTION.
  ON JUNE 29, 1978 THE SEATTLE FIELD OFFICE OF THE FEAA DETERMINED THAT
 MR. FRIDAY, AS AN EXCEPTED SERVICE APPOINTEE WITH LESS THAN ONE YEAR OF
 CURRENT CONTINUOUS EMPLOYMENT, DID NOT HAVE A RIGHT OF APPEAL.
 (RESPONDENT'S EX. 13).
 
    11.  ON MAY 22, 1978 THE APPLICANT FILED AN UNFAIR LABOR PRACTICE
 CHARGE UPON THE ACTIVITY WHICH SUBSEQUENTLY BECAME ASSISTANT SECRETARY
 CASE NO. 71-4744(CA).  THE CHARGE ALLEGED THAT THE ACTIVITY
 "UNILATERALLY MADE A LIST OF RULES REGARDING OPERATIONS AT THE YACC CAMP
 AT GARDINER, OREGON WITHOUT CONSULTING THE LOCAL, WHICH HAS EXCLUSIVE
 RECOGNITION." (COMPLAINANT'S EXHIBIT C-14).
 
    12.  THE APPLICANT FILED SIX GRIEVANCES ON MAY 23, 1978 ON BEHALF OF
 MR. FRIDAY.  (RESPONDENT'S EXHIBIT 3).  THE GRIEVANCES ALLEGE:
 
    1.  MANAGEMENT FAILED TO FOLLOW PROPER PROCEDURES IN THE DISMISSAL OF
 THE EMPLOYEE.
 
    2.  RULES WERE CITED IN THE TERMINATION LETTER OF FEBRUARY 15, BUT
 SAID RULES WERE INVALID
 
    IN THAT THEY HAD NOT BEEN NEGOTIATED WITH THE LOCAL.  THIS GRIEVANCE
 IS CONCERNED WITH THE
 
    CITING OF INVALID RULES.
 
    3.  THE ABOVE LETTER CITED THAT HE HAD PROBLEMS WITH HIS SUPERVISOR,
 WHICH IS NOT VERIFIED
 
    BY HIS SUPERVISOR.  IN FACT, HIS SUPERVISOR WAS NOT EVEN AWARE OF MR.
 FRIDAY'S TERMINATION
 
    UNTIL AFTER THE FACT.
 
    4.  THE LETTER CITED SAID THAT MR. FRIDAY USED IMPROPER METHODS OF
 PROBLEM RESOLUTION.
 
    5.  MR. STUMP FAILED TO USE PROPER METHODS OF PROBLEM RESOLUTION, IN
 THAT HE FAILED TO
 
    CONSULT WITH MR. FRIDAY'S SUPERVISOR.
 
    6.  YOU FAILED TO NOTIFY THE LOCAL OF THE NAME, POSITION, AND DUTY
 STATION OF NEW
 
    EMPLOYEES.  ARTICLE XIII OF THE AGREEMENT.
 
    13.  ON MAY 26, 1978 THE FOREST SUPERVISOR REFUSED TO CONSIDER THE
 GRIEVANCES ON THE GROUNDS THAT THE TIME LIMITS HAD NOT BEEN MET.
 (RESPONDENT'S EXHIBIT 4).
 
    14.  ON MAY 26, 1978 THE APPELLANT, BY MR. GUMP, URGED THE FOREST
 SUPERVISOR TO CONSIDER THE GRIEVANCES, ALLEGING, IN PART, THAT THE LAST
 LETTER CONTAINING INFORMATION NEEDED TO PURSUE THESE GRIEVANCES WAS NOT
 RECEIVED UNTIL AFTER MAY 13.  (COMPLAINANT'S EXHIBIT 7).
 
    15.  ON MAY 31, 1978 THE APPLICANT FILED A SEVENTH GRIEVANCE WHICH
 ALLEGED:
 
    YOU HAVE FAILED TO INSURE THAT THE EMPLOYEES ARE APPRISED OF THEIR
 RIGHTS IN THE AGREEMENT,
 
    AS AGREED TO IN ARTICLE III, PARAGRAPH 3.3, RIGHTS OF EMPLOYEES.
 (COMPLAINANT'S EX. 8).
 
    THIS GRIEVANCE WAS CLARIFIED ON JUNE 8, 1978 AS "BASED UPON YOUR
 FAILURE TO INFORM MR. FRIDAY OF HIS RIGHTS UNDER THE AGREEMENT, ARTICLE
 III, 3.3." (RESPONDENT'S EX.  6).  THE APPLICANT ALLEGED THAT IT FIRST
 LEARNED OF THE ALLEGED FAILURE AS A RESULT OF THE ACTIVITY'S LETTER ON
 MAY 26, 1978.  (COMPLAINANT'S EXHIBIT 8).
 
    16.  THE FOREST SUPERVISOR ALSO REFUSED TO CONSIDER THE SEVENTH
 GRIEVANCE ON THE GROUNDS THAT IT WAS NOT INITIATED WITHIN 15 DAYS OF THE
 INCIDENT.  (RESPONDENT'S EXHIBIT 8).
 
    17.  IN ADVANCING THE GRIEVANCES TO THE REGIONAL FORESTER (STEP 1),
 THE APPLICANT OFFERED REASONS FOR THE DELAY IN INITIATING THE GRIEVANCES
 AND WHY THEY SHOULD BE CONSIDERED UNDER THE AGREEMENT.  (COMPLAINANT'S
 EXHIBIT 10).  ALL LEVELS OF GRIEVANCE REVIEW WERE EXHAUSTED.
 
    18.  ON OCTOBER 2, 1978 THE APPLICANT INVOKED ARBITRATION.  THE
 ACTIVITY REJECTED ARBITRATION ON THE GROUNDS THAT THE GRIEVANCES WERE
 NOT FILED IN A TIMELY MANNER AS REQUIRED BY THE NEGOTIATED GRIEVANCE
 PROCEDURE;  THE GRIEVANCES WERE NON-SPECIFIED;  AND DUPLICATED IN PART
 BY A DISCRIMINATION COMPLAINT AND AN UNFAIR LABOR PRACTICE COMPLAINT.
 (RESPONDENT'S EXHIBIT 12;  COMPLAINANT'S EXHIBIT 12).
 
    THERE IS CONSIDERABLE ADDITIONAL EVIDENCE IN THE RECORD.  HOWEVER, IN
 VIEW OF MY ANALYSIS OF THE FACTS AND THE LAW GOVERNING THE BASIS ISSUE
 IN THIS CASE, I DEEM SUCH EVIDENCE IRRELEVANT TO THE PROPER
 DETERMINATION OF THE APPLICATION.
 
               DISCUSSION, CONCLUSIONS, AND RECOMMENDATIONS
 
    THE FEDERAL LABOR RELATIONS COUNCIL HAS OUTLINED THE SCOPE OF
 RESPONSIBILITY FOR DETERMINING ARBITRABILITY DISPUTES UNDER SECTIONS
 6(A)(5) AND 13(D) OF EXECUTIVE ORDER 11491, AS AMENDED, IN DEPARTMENT OF
 THE NAVY, NAVAL AMMUNITION DEPOT, CRANE, INDIANA, FLRC NO. 74A-19(1975)
 AND COMMUNITY SERVICES ADMINISTRATION, 5 FLRC 727, FLRC NO.
 76A-149(1977).  IN CRANE THE COUNCIL STATED:
 
    IN ANY DISPUTE REFERRED TO THE ASSISTANT SECRETARY CONCERNING WHETHER
 A GRIEVANCE IS ON A
 
    MATTER SUBJECT TO THE NEGOTIATED GRIEVANCE PROCEDURE, THE ASSISTANT
 SECRETARY MUST DECIDE
 
    WHETHER THE DISPUTE IS OR IS NOT SUBJECT TO THE NEGOTIATED GRIEVANCE
 PROCEDURE, JUST AS AN
 
    ARBITRATOR WOULD IF THE QUESTION WERE REFERRED TO HIM.  IN MAKING
 SUCH A DETERMINATION, THE
 
    ASSISTANT SECRETARY MUST CONSIDER RELEVANT PROVISIONS OF THE
 NEGOTIATED AGREEMENT, INCLUDING
 
    THOSE PROVISIONS WHICH DESCRIBE THE SCOPE AND COVERAGE OF THE
 NEGOTIATED GRIEVANCE PROCEDURE,
 
    AS WELL AS ANY SUBSTANTIVE PROVISIONS OF THE AGREEMENT WHICH ARE
 BEING GRIEVED.  (COUNCIL
 
    DECISION AT 4.)
 
    IN COMMUNITY SERVICES ADMINISTRATION THE COUNCIL NOTED THAT SECTION
 13(D) OF THE ORDER DOES NOT REQUIRE THE ASSISTANT SECRETARY TO INTERPRET
 AND APPLY PROVISIONS OF THE NEGOTIATED AGREEMENT.  INDEED, SUCH ACTION
 IS INCONSISTENT WITH THE PURPOSES AND POLICIES OF THE ORDER.  IN
 CLARIFYING ITS APPARENTLY CONTRARY HOLDING IN CRANE, THE COUNCIL STATED:
 
    IN DECIDING WHETHER A DISPUTE IS OR IS NOT SUBJECT TO A PARTICULAR
 NEGOTIATED GRIEVANCE
 
    PROCEDURE, IT IS THE RESPONSIBILITY OF THE ASSISTANT SECRETARY TO
 CONSIDER THOSE "PROVISIONS
 
    WHICH DESCRIBE THE SCOPE AND COVERAGE OF THE NEGOTIATED GRIEVANCE
 PROCEDURE," I.E., THE
 
    GENERAL SCOPE OF SUCH PROCEDURE AS WELL AS ANY SPECIFIC EXCLUSIONS
 THEREIN.  THAT IS, HE MUST
 
    DECIDE, JUST AS AN ARBITRATOR WOULD DECIDE AT THE OUTSET IN THE
 FEDERAL SECTOR . . . WHETHER
 
    THE GRIEVANCE INVOLVES A DISPUTE WHICH THE PARTIES INTENDED TO BE
 RESOLVED THROUGH THEIR
 
    NEGOTIATED GRIEVANCE PROCEDURE.  THE ASSISTANT SECRETARY'S
 CONSIDERATION OF "SUBSTANTIVE
 
    PROVISIONS OF THE AGREEMENT BEING GRIEVED" WOULD BE FOR THE LIMITED
 PURPOSE OF DETERMINING
 
    WHETHER THE GRIEVANCE INVOLVES A CLAIM WHICH ON THE FACE IS COVERED
 BY THE CONTRACT, I.E.,
 
    INVOLVES A MATTER WHICH ARGUABLY CONCERNS THE MEANING OF APPLICATION
 OF THE SUBSTANTIVE
 
    PROVISION(S) BEING GRIEVED AND WHICH THE PARTIES INTENDED TO BE
 RESOLVED UNDER THE NEGOTIATED
 
    GRIEVANCE PROCEDURE.  THE COUNCIL'S STATEMENT IN CRANE THAT THE
 ASSISTANT SECRETARY MUST
 
    DECIDE WHETHER OR NOT A DISPUTE IS SUBJECT TO THE NEGOTIATED
 GRIEVANCE PROCEDURE "JUST AS AN
 
    ARBITRATOR WOULD IF THE QUESTION WERE REFERRED TO HIM," WHILE PERHAPS
 AMBIGUOUS, WAS NOT
 
    INTENDED AND SHOULD NOT BE CONSTRUED TO MEAN THAT THE ASSISTANT
 SECRETARY MAY INTERPRET THE
 
    SUBSTANTIVE PROVISIONS OF AN AGREEMENT IN RESOLVING A GRIEVABILITY OR
 ARBITRABILITY QUESTION
 
    AS AN ARBITRATOR WOULD IN DECIDING THE MERITS OF A GRIEVANCE.
 INSTEAD, THE COUNCIL'S
 
    STATEMENT WAS INTENDED TO INDICATE THAT THE ASSISTANT SECRETARY MUST
 DECIDE A QUESTION OF
 
    GRIEVABILITY OR ARBITRABILITY UNDER A NEGOTIATED GRIEVANCE PROCEDURE
 WHERE SUCH QUESTION IS
 
    REFERRED TO HIM, JUST AS AN ARBITRATOR WOULD BE REQUIRED TO DECIDE
 THE QUESTION OF
 
    GRIEVABILITY OR ARBITRABILITY WHERE THE PARTIES BILATERALLY AGREE TO
 REFER SUCH THRESHOLD
 
    ISSUE TO THE ARBITRATOR PURSUANT TO SECTION 13(D) OF THE ORDER.
 (COUNCIL DECISION AT 5-6.
 
    EXAMINING THE APPLICATION UNDER THESE STANDARDS, IT IS CONCLUDED THAT
 THE GRIEVANCES ARE NOT BARRED FROM THE GRIEVANCE/ARBITRATION PROCEDURE
 UNDER SECTION 19(D) OF THE EXECUTIVE ORDER BY VIRTUE OF MR. FRIDAY'S
 APPEAL TO THE FEDERAL EMPLOYEE APPEALS AUTHORITY.  AS AN EXCEPTED
 SERVICE APPOINTEE WITH LESS THAN ONE YEAR OF CURRENT CONTINUOUS
 EMPLOYMENT, MR. FRIDAY DID NOT HAVE A RIGHT OF APPEAL TO THE CIVIL
 SERVICE COMMISSION.  (RESPONDENT'S EXHIBIT 13;  TR.  61-62).
 
    THE GRIEVANCES ARE ALSO NOT BARRED FROM THE GRIEVANCE/ARBITRATION
 PROCEDURE UNDER SECTION 19(D) OF THE EXECUTIVE ORDER BY VIRTUE OF MR.
 FRIDAY'S EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT.  THE ISSUE IN THAT
 PROCEEDING WILL NECESSARILY BE LIMITED TO THE SEX DISCRIMINATION ISSUE
 RAISED BY MR. FRIDAY.  (RESPONDENT'S EXHIBIT 17-19).  CF. VETERANS
 ADMINISTRATION, VETERANS BENEFITS OFFICE, 3 A/SLMR 444, A/SLMR NO. 296
 (1973).
 
    GRIEVANCE NUMBER 2, HOWEVER, IS BARRED BY SECTION 19(C) OF THE
 EXECUTIVE ORDER INASMUCH AS THAT GRIEVANCE, ALLEGING THAT CERTAIN RULES
 WERE INVALID BECAUSE THEY WERE NOT NEGOTIATED WITH THE UNION, WAS
 PREVIOUSLY RAISED IN ANY UNFAIR LABOR PRACTICE COMPLAINT.
 (COMPLAINANT'S EXHIBIT C-14;  ASSISTANT SECRETARY CASE NO. 71-4744(CA).)
 
    THE REMAINING GRIEVANCES, NUMBERS 1 AND 3 THROUGH 7, ARE SUBJECT TO
 ARBITRATION UNDER THE PARTIES' NEGOTIATED AGREEMENT.  ARTICLE 8.1(C)
 PROVIDES THAT A GRIEVANCE MAY BE SUBMITTED TO ARBITRATION IF THE
 EMPLOYEE IS NOT SATISFIED WITH THE CHIEF'S DECISION.  IT IS UNCONTESTED
 THAT ALL PREVIOUS LEVELS OF GRIEVANCE REVIEW HAVE BEEN EXHAUSTED.  THE
 GRIEVANCES ALSO PRESENT THE THRESHOLD ISSUE OF WHETHER THE APPLICANT'S
 FAILURE TO MEET THE TIME LIMITS SPECIFIED FOR THE FILING OF GRIEVANCES
 WERE "WITHOUT REASONABLE JUSTIFICATION" UNDER ARTICLE 8.2 OF THE
 AGREEMENT.  THE APPLICANT FILED WITH THE GRIEVANCES REASONS WHY IT FELT
 THE GRIEVANCES SHOULD BE CONSIDERED TO BE TIMELY UNDER THE
 CIRCUMSTANCES.  THE ACTIVITY, IN EFFECT, FOUND THAT THESE REASONS DID
 NOT PROVIDE REASONABLE JUSTIFICATION FOR FAILURE TO COMPLY WITH THE TIME
 LIMITS.  ARTICLE 9.1 OF THE PARTIES' NEGOTIATED AGREEMENT PROVIDES THAT
 "ARBITRATION . . . IS AN ACCEPTABLE CHANNEL FOR SETTLING DISPUTES
 RELATIVE TO THE INTERPRETATION OR APPLICATION OF THE AGREEMENT." SINCE
 THE GRIEVANCES INVOLVE A DISPUTE AS TO THE INTERPRETATION AND
 APPLICATION OF THE "REASONABLE JUSTIFICATION" STANDARD CONTAINED IN THE
 NEGOTIATED AGREEMENT FOR DETERMINING THE TIMELINESS OF GRIEVANCES AND
 ARE OTHERWISE MATTERS WHICH THE PARTIES DETERMINED SHOULD BE RESOLVED BY
 RESORT TO ARBITRATION UNDER ARTICLE 8.1(C), I CONCLUDE THAT ALL THE
 GRIEVANCES EXCEPT NUMBER 2 ARE ARBITRABLE UNDER ARTICLE 8.1(C) AND 9.1
 OF THE LOCAL AGREEMENT, AND THE ARBITRATOR MUST DECIDE, AS A THRESHOLD
 QUESTION, WHETHER THESE GRIEVANCES WERE TIMELY FILED WITHIN THE MEANING
 OF ARTICLE 8.2 OF THE AGREEMENT.
 
    THE PARTIES PRESENTED EVIDENCE AND ASSERTED THAT THE THRESHOLD ISSUE
 OF TIMELINESS MAY BE DETERMINED IN THIS PROCEEDING.  HOWEVER, I CONCLUDE
 THAT THIS ISSUE INVOLVES AN INTERPRETATION AND APPLICATION OF THE
 AGREEMENT, AND THEREFORE MUST BE RESOLVED BY THE ARBITRATOR.  CF.
 DEPARTMENT OF THE AIR FORCE, NEWARK AIR FORCE STATION, A/SLMR NO. 1044
 (1978).
 
                              RECOMMENDATION
 
    IT IS RECOMMENDED THAT ALL GRIEVANCES EXCEPT NUMBER 2 IN CASE NO.
 71-5004(CA) BE FOUND TO BE SUBJECT TO THE ARBITRATION PROCEDURE SET
 FORTH IN THE PARTIES' NEGOTIATED AGREEMENT.
 
                             GARVIN LEE OLIVER
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  10 SEP 1979
 
    WASHINGTON, D.C.
 
                               SERVICE SHEET
 
    TODAY, SEPTEMBER 10, 1979, COPIES OF A RECOMMENDED DECISION AND ORDER
 WERE SENT TO THE FOLLOWING:
 
    CERTIFIED MAIL - RETURN RECEIPT REQUESTED
 
    WILLIAM J. DUGGAN
 
    EMPLOYEE RELATIONS SPECIALIST
 
    U.S. FOREST SERVICE
 
    P.O. BOX 3623
 
    PORTLAND, OREGON 97208
 
    #612686
 
    P. J. HEATH
 
    PRESIDENT, LOCAL 454
 
    NATIONAL FEDERATION OF FEDERAL
 
    EMPLOYEES
 
    P.O. BOX 726
 
    CORVALLIS, OREGON 97330
 
    #612687
 
    CATHERINE WAELDER, ESQUIRE
 
    NATIONAL FEDERATION OF FEDERAL
 
    EMPLOYEES
 
    1016 16TH STREET, N.W.
 
    WASHINGTON, D.C.  20036
 
    #612688
 
    MR. JAMES M. PEIRCE, PRESIDENT
 
    NATIONAL FEDERATION OF FEDERAL
 
    EMPLOYEES
 
    1016 16TH STREET, N.W.
 
    WASHINGTON, D.C.  20036
 
    #612689
 
    REGULAR MAIL
 
    ASSISTANT DIRECTOR, LMR
 
    U.S. OFFICE OF PERSONNEL MANAGEMENT
 
    1900 E STREET, N.W.
 
    WASHINGTON, D.C.  20415
 
    FLRA
 
    1900 E STREET, N.W. - ROOM 7469
 
    WASHINGTON, D.C.
 
    1 CY. EA. REGIONAL DIRECTOR
 
    /1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE PRESENT 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
 RESULTS WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
 UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.