Department of Defense Dependents Schools, Europe, London Central High School, High Wycombe, England

 1 FLRA No. 15
                                             APRIL 9, 1979
 
 MR. EDWARD H. PASSMAN
 PASSMAN AND PRICE
 SUITE 210
 1730 RHODE ISLAND AVENUE, N.W.
 WASHINGTON,D.C.  20036
 
                       RE:  DEPARTMENT OF DEFENSE DEPENDENTS 
                            SCHOOLS, EUROPE, LONDON CENTRAL HIGH 
                            SCHOOL, HIGH WYCOMBE, ENGLAND,
                            Assistant Secretary Case No. 
                            22-08769(CA), FLRC No. 78A-148
 
 DEAR MR. PASSMAN:
 
    THE AUTHORITY HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF
 THE ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
 
    THIS CASE, INSOFAR AS RELEVANT HEREIN, AROSE OUT OF AN INCIDENT
 INVOLVING THE QUESTIONING AND SUSPENSION OF THE PRESIDENT OF LOCAL 1834
 OF THE OVERSEAS FEDERATION OF TEACHERS, OFT, AFL-CIO (OFT) BY THE
 DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS, EUROPE, LONDON CENTRAL HIGH
 SCHOOL, HIGH WYCOMBE, ENGLAND (THE ACTIVITY).  THE LOCAL OFT PRESIDENT,
 A MEMBER OF THE UNIT EXCLUSIVELY REPRESENTED NOT BY OFT BUT BY THE
 OVERSEAS EDUCATION ASSOCIATION (OEA), FILED A GRIEVANCE AS TO WHICH
 ARBITRATION WAS ULTIMATELY INVOKED UNDER THE GRIEVANCE PROCEDURE
 NEGOTIATED BETWEEN THE ACTIVITY AND OEA.  THE LOCAL OFT PRESIDENT ALSO
 FILED AN UNFAIR LABOR PRACTICE COMPLAINT WHICH WAS DISMISSED PURSUANT TO
 SECTION 19(D) OF THE ORDER ON THE BASIS THAT THE ISSUE OF HIS SUSPENSION
 HAD PREVIOUSLY BEEN RAISED UNDER THE NEGOTIATED GRIEVANCE PROCEDURE.
 /1/ OFT THEREAFTER FILED AN UNFAIR LABOR PRACTICE COMPLAINT ALLEGING
 THAT THE ACTIVITY'S QUESTIONING AND SUSPENSION OF THE LOCAL OFT
 PRESIDENT VIOLATED SECTION 19(A)(1), (2) AND (3) OF THE ORDER.
 
    THE REGIONAL ADMINISTRATOR (RA) FOUND THAT, PRIOR TO THE FILING OF
 OFT'S COMPLAINT, THE LOCAL OFT PRESIDENT HAD INVOKED THE NEGOTIATED
 GRIEVANCE PROCEDURE APPLICABLE TO EMPLOYEES IN THE UNIT AND HAD RAISED
 UNDER THAT PROCEDURE THE ISSUE OF HIS QUESTIONING AND SUSPENSION.  AS A
 RESULT, THE RA DETERMINED THAT, INSOFAR AS OFT'S COMPLAINT ALLEGED THAT
 THE QUESTIONING AND SUSPENSION VIOLATED SECTION 19(A)(1) AND (2) OF THE
 ORDER, IT "MUST BE DISMISSED AS BEING PRECLUDED FROM CONSIDERATION UNDER
 THE UNFAIR LABOR PRACTICE PROCEDURE BY (S)ECTION 19(D) OF THE ORDER
 BECAUSE THE SAME ISSUE HAS PREVIOUSLY BEEN RAISED UNDER THE NEGOTIATED
 GRIEVANCE PROCEDURE . . ." ACCORDINGLY, THE RA DISMISSED THAT PORTION OF
 THE COMPLAINT.  /2/
 
    THE ASSISTANT SECRETARY FOUND, IN AGREEMENT WITH THE RA AND BASED ON
 HIS REASONING, THAT, "INASMUCH AS THE PRECISE ALLEGATIONS RAISED IN THE
 COMPLAINT WERE PREVIOUSLY RAISED UNDER A NEGOTIATED GRIEVANCE
 PROCEDURE," THOSE ALLEGATIONS WERE PRECLUDED BY SECTION 19(D) FROM
 CONSIDERATION UNDER THE UNFAIR LABOR PRACTICE PROCEDURES OF THE ORDER.
 CONSEQUENTLY, HE FOUND THAT FURTHER PROCEEDINGS WITH REGARD TO OFT'S
 COMPLAINT WERE UNWARRANTED AND DENIED OFT'S REQUEST FOR REVIEW SEEKING
 REVERSAL OF THE RA'S DISMISSAL OF ITS COMPLAINT.
 
    IN YOUR PETITION FOR REVIEW ON BEHALF OF OFT, YOU ALLEGE THAT A MAJOR
 POLICY ISSUE EXISTS AS TO THE INTERPRETATION AND APPLICATION OF SECTION
 19(D) OF THE ORDER, SINCE THE ASSISTANT SECRETARY MADE AN ARBITRARY AND
 CAPRICIOUS DECISION INCONSISTENT WITH HIS PREVIOUS RULINGS AND A
 DECISION OF THE FEDERAL LABOR RELATIONS COUNCIL /3/ AS WELL AS THE
 PURPOSES AND POLICIES OF THE ORDER.  MORE SPECIFICALLY, YOU ALLEGE THAT
 THE ISSUE PRESENTED IS "WHETHER A LABOR ORGANIZATION WHICH IS NOT A
 PARTY TO THE NEGOTIATED AGREEMENT IS BARRED FROM FILING AN UNFAIR LABOR
 PRACTICE COMPLAINT ALLEGING VIOLATIONS OF SECTION 19(A)(1) AND 19(A)(2)
 OF THE ORDER BECAUSE AN EMPLOYEE WHO WAS A MEMBER OF THE BARGAINING UNIT
 FILED A GRIEVANCE ON A RELATED MATTER."
 
    AS TO YOUR ALLEGATION 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 THAT FURTHER PROCESSING OF OFT'S
 COMPLAINT WAS UNWARRANTED.  IN THIS REGARD, YOUR APPEAL FAILS TO REVEAL
 ANY CLEAR, UNEXPLAINED INCONSISTENCY BETWEEN THE INSTANT DECISION AND
 PREVIOUSLY PUBLISHED DECISIONS OF THE ASSISTANT SECRETARY.  LIKEWISE,
 YOUR APPEAL FAILS TO SUPPORT YOUR CLAIM THAT THE ASSISTANT SECRETARY'S
 DECISION IS INCONSISTENT EITHER WITH APPLICABLE COUNCIL PRECEDENT OR THE
 PURPOSES AND POLICIES OF THE ORDER.  /4/ FURTHERMORE, IT DOES NOT APPEAR
 THAT ANY MAJOR POLICY ISSUE IS PRESENTED BY THE ASSISTANT SECRETARY'S
 DECISION.  IN THIS REGARD, YOUR ALLEGATION THAT THE ASSISTANT
 SECRETARY'S DECISION IS, IN EFFECT, INCONSISTENT WITH SECTION 19(D) OF
 THE ORDER CONSTITUTES ESSENTIALLY MERE DISAGREEMENT WITH THE ASSISTANT
 SECRETARY'S FINDING THAT THE PRECISE ALLEGATIONS RAISED BY OFT'S UNFAIR
 LABOR PRACTICE COMPLAINT WERE PREVIOUSLY RAISED UNDER THE NEGOTIATED
 GRIEVANCE PROCEDURE AND THEREFORE PRESENTS NO MAJOR POLICY ISSUE
 WARRANTING AUTHORITY REVIEW.  SEE, E.G., INTERNAL REVENUE SERVICE, OGDEN
 SERVICE CENTER, ET AL., A/SLMR 806, 5 FLRC 700 (FLRC 77A-40 (AUG. 12,
 1977), REPORT NO. 133);  DEPARTMENT OF THE NAVY, PEARL HARBOR NAVAL
 SHIPYARD, ASSISTANT SECRETARY CASE NO. 73-587(CA), 3 FLRC 595 (FLRC
 75A-57 (SEPT. 18, 1975), REPORT NO.  83).
 
    SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
 AND CAPRICIOUS OR PRESENT A MAJOR POLICY ISSUE, YOUR 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, YOUR PETITION FOR REVIEW
 IS HEREBY DENIED.  /5/
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
    CC:  C. E. LITTLE
 
    DODDSEUR
 
    /1/ SECTION 19(D) OF THE ORDER PROVIDES:
 
    ISSUES WHICH CAN PROPERLY BE RAISED UNDER AN APPEALS PROCEDURE MAY
 NOT BE RAISED UNDER THIS
 
    SECTION.  ISSUES WHICH CAN BE RAISED UNDER A GRIEVANCE PROCEDURE MAY,
 IN THE DISCRETION OF THE
 
    AGGRIEVED PARTY, BE RAISED UNDER THAT PROCEDURE OR THE COMPLAINT
 PROCEDURE UNDER THIS SECTION,
 
    BUT NOT UNDER BOTH PROCEDURES.  APPEALS AND GRIEVANCE DECISIONS SHALL
 NOT BE CONSTRUED AS
 
    UNFAIR LABOR PRACTICE DECISIONS UNDER THIS ORDER NOR AS PRECEDENT FOR
 SUCH DECISIONS.  ALL
 
    COMPLAINTS UNDER THIS SECTION THAT CANNOT BE RESOLVED BY THE PARTIES
 SHALL BE FILED WITH THE
 
    ASSISTANT SECRETARY.
 
    /2/ THE RA ALSO DISMISSED THAT PORTION OF THE COMPLAINT WHICH ALLEGED
 A VIOLATION OF SECTION 19(A)(3).  NO EXCEPTIONS WERE FILED WITH THE
 ASSISTANT SECRETARY IN THIS REGARD.
 
    /3/ DEPARTMENT OF THE INTERIOR, BUREAU OF RECLAMATION, YUMA PROJECTS
 OFFICE, YUMA, ARIZONA, A/SLMR NO. 401, 4 FLRC 484 (FLRC 74A-52 (SEPT.
 17, 1976), REPORT NO.  112).
 
    /4/ IN THIS REGARD, THE COUNCIL'S DECISION IN THE YUMA CASE (SUPRA N.
 2) UPON WHICH YOU RELY IN YOUR APPEAL, IS CLEARLY DISTINGUISHABLE FROM
 THE CIRCUMSTANCES IN THE INSTANT CASE.  APART FROM OTHER CONSIDERATIONS,
 IN THE YUMA CASE THE UNION'S UNFAIR LABOR PRACTICE COMPLAINT WAS BASED
 ON ALLEGED VIOLATIONS OF THE UNION'S RIGHTS UNDER THE ORDER;  WHEREAS
 HERE THE ALLEGATIONS IN THE UNION'S COMPLAINT ARE PREDICATED ON ALLEGED
 VIOLATIONS OF THE RIGHTS OF AN EMPLOYEE, WHICH ALLEGATIONS, THE
 ASSISTANT SECRETARY FOUND, HAD PREVIOUSLY BEEN RAISED IN A NEGOTIATED
 GRIEVANCE PROCEDURE.
 
    /5/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1124), 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 IF THE CASE HAD ARISEN UNDER THE STATUTE RATHER THAN
 THE ORDER.