Federal Aviation Administration, National Aviation Facilities Experimental Center, Atlantic City, New Jersey, Assistant Secretary Case No. 32-5255 (CA), FLRC No. 78A-140

 1 FLRA No. 10
                                            MARCH 28, 1979
 
 MR. ROBERT J. ENGLEHART
 STAFF ATTORNEY
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES
 1016 16TH STREET, N.W.
 WASHINGTON, D.C.  20036
 
                      RE:  FEDERAL AVIATION ADMINISTRATION, NATIONAL 
                           AVIATION FACILITIES EXPERIMENTAL CENTER, 
                           ATLANTIC CITY, NEW JERSEY, ASSISTANT 
                           SECRETARY Case No. 32-5255(CA), FLRC
                           No. 78A-140
 
 DEAR MR. ENGLEHART:
 
    THE AUTHORITY 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 FEDERATION OF
 FEDERAL EMPLOYEES, LOCAL 1340 (THE UNION) FILED AN UNFAIR LABOR PRACTICE
 COMPLAINT AGAINST THE FEDERAL AVIATION ADMINISTRATION, NATIONAL AVIATION
 FACILITIES EXPERIMENTAL CENTER, ATLANTIC CITY, NEW JERSEY (THE ACTIVITY)
 ALLEGING A VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER.
 SPECIFICALLY, THE COMPLAINT ALLEGED THAT THE UNION HAD A RIGHT TO
 MEMBERSHIP ON THE "POSITION MANAGEMENT COMMITTEE," AND THAT THE ACTIVITY
 FAILED TO MEET AND CONFER IN GOOD FAITH BY REFUSING TO NOTIFY THE UNION
 OF ITS DECISION TO IMPLEMENT A DIRECTIVE ESTABLISHING THE COMMITTEE
 AFTER PROMISING AT A MEETING THAT IT WOULD "GET BACK" TO THE UNION.
 
    THE REGIONAL ADMINISTRATOR (RA) FOUND THAT A REASONABLE BASIS FOR THE
 COMPLAINT HAD NOT BEEN ESTABLISHED AND THEREFORE DISMISSED IT.  IN SO
 FINDING, HE STATED:
 
    NO EVIDENCE EXISTS TO CONTRAVENE THE (A)CTIVITY'S POSITION THAT THE
 COMMITTEE IS AN ARM OF
 
    MANAGEMENT, AND THAT ON ANY RECOMMENDATIONS MADE BY THE COMMITTEE
 AFFECTING PERSONNEL POLICIES
 
    AND PRACTICES OR OTHER MATTERS AFFECTING WORKING CONDITIONS THE UNION
 WOULD BE CONSULTED PRIOR
 
    TO IMPLEMENTING DECISIONS AFFECTING BARGAINING UNIT EMPLOYEES.
 ACCORDINGLY, YOUR CONTENTION
 
    THAT THERE SHOULD BE UNION MEMBERSHIP ON THE MANAGEMENT COMMITTEE, IS
 REJECTED.
 
    THE ASSISTANT SECRETARY DENIED THE UNION'S REQUEST FOR REVIEW SEEKING
 REVERSAL OF THE RA'S DISMISSAL OF THE COMPLAINT.  IN SO RULING, HE
 STATED:
 
    IN AGREEMENT WITH THE (RA), AND BASED ON HIS REASONING, I FIND THAT
 THE (UNION) HAS NO
 
    RIGHT UNDER THE ORDER TO MEMBERSHIP ON THE (POSITION) MANAGEMENT
 COMMITTEE OF THE
 
    (ACTIVITY).  I FURTHER FIND IN REGARD TO THE OTHER ISSUES RAISED IN
 THE COMPLAINT BUT NOT
 
    SPECIFICALLY ADDRESSED BY THE (RA), THAT THERE IS INSUFFICIENT
 EVIDENCE OF ANY REFUSAL BY THE
 
    (ACTIVITY) TO NEGOTIATE OVER ANY NEGOTIABLE MATTERS, OR THAT THE
 (POSITION) MANAGEMENT
 
    COMMITTEE, IN FACT, EFFECTUATES ANY DECISIONS WHICH AFFECTED EMPLOYEE
 TERMS AND CONDITIONS OF
 
    EMPLOYMENT.  . . .
 
    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 DETERMINATION HEREIN THAT THE UNION HAD NO RIGHT UNDER THE ORDER TO
 MEMBERSHIP ON THE POSITION MANAGEMENT COMMITTEE WAS BASED ON A
 "MISREADING OF THE COMPLAINT." IN THIS REGARD YOU CONTEND THAT THE UNION
 DID NOT INTEND TO SEEK MEMBERSHIP ON THE COMMITTEE THROUGH ITS PROPOSED
 NEGOTIATIONS, BUT RATHER SOUGHT TO NEGOTIATE OVER THE ESTABLISHMENT OF A
 PROCESS TO ENSURE THAT THE UNION WOULD BE CONSULTED WITH RESPECT TO
 COMMITTEE DECISIONS AFFECTING PERSONNEL POLICIES AND PRACTICES OF
 BARGAINING UNIT EMPLOYEES.  YOU FURTHER ASSERT THAT THE ASSISTANT
 SECRETARY ERRED IN FINDING THAT THERE WAS INSUFFICIENT EVIDENCE TO
 ESTABLISH THAT THE COMMITTEE WOULD EFFECTUATE ANY DECISION AFFECTING
 EMPLOYEE TERMS AND CONDITIONS OF EMPLOYMENT.  FINALLY, YOU CONTEND THAT
 THE "ASSISTANT SECRETARY SHOULD HAVE FOUND A BASIS FOR A 19(A)(1) AND
 (6) VIOLATION (OF THE ORDER) SOLELY ON THE FAILURE OF MANAGEMENT TO GIVE
 THE UNION ADVANCE NOTIFICATION OF THE CREATION OF THE COMMITTEE,"
 CONTENDING THAT SUCH ACTION IS A "PRIMA FACIE UNFAIR LABOR PRACTICE."
 
    IN THE AUTHORITY'S OPINION, YOUR 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 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 IS ARBITRARY AND CAPRICIOUS, IT DOES NOT APPEAR THAT THE
 ASSISTANT SECRETARY ACTED WITHOUT REASONABLE JUSTIFICATION IN REACHING
 HIS DECISION IN THE INSTANT CASE.  RATHER, YOUR ASSERTIONS TO THE
 CONTRARY ALL APPEAR TO CONSTITUTE ESSENTIALLY MERE DISAGREEMENT WITH THE
 ASSISTANT SECRETARY'S DETERMINATION, PURSUANT TO HIS REGULATIONS, THAT
 THE UNION HAD PRESENTED INSUFFICIENT EVIDENCE TO ESTABLISH ANY REFUSAL
 BY THE ACTIVITY TO NEGOTIATE OVER ANY NEGOTIABLE MATTERS, OR THAT THE
 COMMITTEE, IN FACT, EFFECTUATES ANY DECISIONS WHICH AFFECTED EMPLOYEE
 TERMS AND CONDITIONS OF EMPLOYMENT.  MOREOVER, YOU DO NOT ALLEGE AND IT
 DOES NOT OTHERWISE APPEAR THAT THE ASSISTANT SECRETARY'S DECISION RAISES
 A MAJOR POLICY ISSUE WARRANTING AUTHORITY 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 A MAJOR POLICY ISSUE, YOUR APPEAL FAILS TO MEET THE
 REQUIREMENTS FOR REVIEW AS SET FORTH IN SECTION 2400.2 OF THE
 AUTHORITY'S TRANSITION RULES AND REGULATIONS WHICH INCORPORATES BY
 REFERENCE SECTION 2411.12 OF THE COUNCIL'S RULES.  ACCORDINGLY, YOUR
 PETITION FOR REVIEW IS HEREBY DENIED.  /1/
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
    CC:  R. L. FAITH
 
    FAA
 
    /1/ 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 OF 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.