Social Security Administration, Cincinnati Downtown District Office, Cincinnati, Ohio, A/SLMR No. 1124 

 1 FLRA No. 12
                                             APRIL 9, 1979
 
 MR. ROBERT J. ENGLEHART
 STAFF ATTORNEY
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES
 1016 16TH STREET, N.W.
 WASHINGTON, D.C.  20036
 
 MR. IRVING L. BECKER
 LABOR RELATIONS OFFICER
 SOCIAL SECURITY ADMINISTRATION
 6401 SECURITY BOULEVARD
 ROOM G-402, WEST HIGH RISE BUILDING
 BALTIMORE, MARYLAND 21235
 
                           RE:  SOCIAL SECURITY ADMINISTRATION, 
                                CINCINNATI DOWNTOWN DISTRICT 
                                OFFICE, CINCINNATI, OHIO, A/SLMR 
                                No. 1124, FLRC No. 78A-128
 
 GENTLEMEN:
 
    THE AUTHORITY HAS CAREFULLY CONSIDERED THE PETITIONS FOR REVIEW OF
 THE ASSISTANT SECRETARY'S DECISION FILED IN THE ABOVE-ENTITLED CASE.
 
    IN THIS CASE, THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 75
 (THE UNION) FILED AN UNFAIR LABOR PRACTICE COMPLAINT AGAINST THE SOCIAL
 SECURITY ADMINISTRATION, CINCINNATI DOWNTOWN DISTRICT OFFICE,
 CINCINNATI, OHIO (THE ACTIVITY).  THE COMPLAINT ALLEGED THAT THE
 ACTIVITY HAD VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY
 UNILATERALLY IMPLEMENTING A CHANGE IN THE ACTIVITY'S POLICY REGARDING
 THE CONSUMPTION OF FOOD AND BEVERAGES BY EMPLOYEES DURING WORKING HOURS
 WITHOUT FIRST NEGOTIATING WITH THE UNION, AND BY EFFECTING A ROTATION OF
 EMPLOYEE WORK ASSIGNMENTS WITHOUT FIRST NEGOTIATING THE IMPACT AND
 IMPLEMENTATION OF THAT ROTATION.
 
    THE ASSISTANT SECRETARY ADOPTED THE FINDINGS, CONCLUSIONS AND
 RECOMMENDATION OF THE ADMINISTRATIVE LAW JUDGE (ALJ), WHO CONCLUDED THAT
 THE ACTIVITY'S CONDUCT DID NOT VIOLATE SECTION 19()(1) AND (6) OF THE
 ORDER AND THAT THE UNION'S COMPLAINT SHOULD BE DISMISSED.  IN SO
 CONCLUDING, THE ALJ STATED WITH REGARD TO THE NEW FOOD AND DRINK POLICY:
 
    (T)HE RECORD DISCLOSES THAT THE UNION WAS PROVIDED SUFFICIENT
 NOTIFICATION OF A PROPOSED
 
    CHANGE IN THE FOOD AND DRINK POLICY TO ALLOW THE UNION OPPORTUNITY TO
 NEGOTIATE, AND FURTHER
 
    THAT MANAGEMENT DID IN FACT NEGOTIATE WITH THE UNION CONCERNING THE
 CHANGE.
 
    SIMILARLY, WITH RESPECT TO THE ASSIGNMENT ROTATION ISSUE, THE ALJ
 STATED:
 
    (T)HE UNION WAS PROVIDED FURTHER OPPORTUNITIES TO NEGOTIATE
 CONCERNING THE IMPACT OF UNIT
 
    ROTATION . . . BEFORE . . . IMPLEMENTATION.  ALTHOUGH THE POSITION OF
 THE UNION WAS SOLICITED
 
    AT THESE LATER POINTS, AND ALTHOUGH OPPORTUNITY FOR DISCUSSION OF
 DIFFERENCES WAS PRESENTED,
 
    THE UNION DID NOT TAKE ADVANTAGE OF EITHER.
 
    UNDER THE PARTICULAR CIRCUMSTANCES PRESENTED IT MUST BE CONCLUDED
 THAT THE (ACTIVITY)
 
    FULFILLED ITS OBLIGATION TO BARGAIN ON THE IMPACT AND IMPLEMENTATION
 OF ITS DECISION REGARDING
 
    THE UNIT ROTATION . . .
 
    BOTH THE UNION AND THE SOCIAL SECURITY ADMINISTRATION (THE AGENCY)
 HAVE FILED PETITIONS FOR REVIEW OF THE ASSISTANT SECRETARY'S DECISION.
 
    IN ITS PETITION THE UNION CONTENDS THAT THE DECISION OF THE ASSISTANT
 SECRETARY IS ARBITRARY AND CAPRICIOUS AND PRESENTS TWO MAJOR POLICY
 ISSUES, NAMELY:  WHETHER THE UNION WAS GIVEN SUFFICIENT ADVANCE NOTICE
 OF THE CHANGE IN THE FOOD AND DRINK POLICY AND THE ASSIGNMENT ROTATION
 PLAN, AND WHETHER THE PARTIES DID IN FACT NEGOTIATE ABOUT EITHER ISSUE.
 IN ITS PETITION FOR REVIEW, THE AGENCY ALLEGES THAT THE ASSISTANT
 SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS AND RAISES MAJOR POLICY
 ISSUES INSOFAR AS IT ADOPTS CERTAIN OF THE ALJ'S THRESHOLD FINDINGS
 CONCERNING THE ACTIVITY'S OBLIGATION TO BARGAIN.  MORE SPECIFICALLY, THE
 AGENCY CONTENDS, IN SUBSTANCE, THAT THERE WAS NO BASIS FOR THE
 DETERMINATION THAT THE ACTIVITY HAD A DUTY TO BARGAIN IN THIS CASE, OR
 THAT A VIOLATION OF THE ORDER RATHER THAN A QUESTION CONCERNING THE
 INTERPRETATION OF THE PARTIES' AGREEMENT WAS AT ISSUE.
 
    IN THE AUTHORITY'S OPINION, NEITHER PETITION FOR REVIEW MEETS 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 PARTIES' ALLEGATIONS THAT THE ASSISTANT
 SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS, IT DOES NOT APPEAR IN
 THE CIRCUMSTANCES OF THIS CASE THAT THE ASSISTANT SECRETARY ACTED
 WITHOUT REASONABLE JUSTIFICATION IN REACHING HIS DECISION.  NOR DOES IT
 APPEAR THAT THE ASSISTANT SECRETARY'S DECISION PRESENTS ANY MAJOR POLICY
 ISSUES, AS ALLEGED.
 
    THE UNION'S ALLEGATIONS THAT IT WAS NOT GIVEN SUFFICIENT NOTICE OF
 EITHER THE CHANGED FOOD AND DRINK POLICY OR THE NEW ROTATION PLAN, AND
 THAT NEGOTIATIONS WERE NOT HELD ON EITHER ISSUE, CONSTITUTE ESSENTIALLY
 MERE DISAGREEMENT WITH THE ALJ'S CONTRARY FACTUAL DETERMINATIONS, AS
 ADOPTED BY THE ASSISTANT SECRETARY, AND THEREFORE PRESENT NO MAJOR
 POLICY ISSUES WARRANTING AUTHORITY REVIEW.  LIKEWISE, THE AGENCY'S
 ALLEGATIONS CONCERNING WHETHER THE ACTIVITY WAS OBLIGATED TO NEGOTIATE
 WITH THE UNION, AND WHETHER A CONTRACTUAL ISSUE RATHER THAN AN UNFAIR
 LABOR PRACTICE ISSUE WAS INVOLVED, PRESENT NO BASIS FOR AUTHORITY
 REVIEW.  IN SO CONCLUDING, THE AUTHORITY NOTES PARTICULARLY THE
 ASSISTANT SECRETARY'S CONCLUSION THAT, IN THE CIRCUMSTANCES OF THIS
 CASE, THE ACTIVITY SATISFIED ITS OBLIGATION TO BARGAIN IN GOOD FAITH.
 /1/
 
    SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
 AND CAPRICIOUS OR PRESENT A MAJOR POLICY ISSUE, THE APPEALS OF BOTH THE
 UNION AND THE AGENCY FAIL 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 PETITIONS FOR REVIEW ARE HEREBY DENIED.  /2/
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
    /1/ IN THIS REGARD WE DO NOT REACH OR PASS UPON THE REASONING OF THE
 ALJ AS TO THE APPROPRIATE LEVEL OF NEGOTIATIONS IN THIS CASE.  RATHER,
 WE FIND ONLY THAT, IN VIEW OF THE ALJ'S DETERMINATION THAT THE ACTIVITY
 DID ENGAGE IN GOOD FAITH BARGAINING WITH THE UNION, NO MAJOR POLICY
 ISSUE IS PRESENTED BY THE ASSISTANT SECRETARY'S DECISION HEREIN.
 
    /2/ 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.