Department of Health, Education, and Welfare, Social Security Administration, Disability Insurance Program Staff, Chicago, Illinois, A/SLMR No. 1128

 1 FLRA No. 16
                                             APRIL 9, 1979
 
 MR. BILL LOFTIS
 PRESIDENT
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 300 SOUTH WACKER DRIVE
 CHICAGO, ILLINOIS 60606
 
                       RE:  DEPARTMENT OF HEALTH, EDUCATION, AND 
                            WELFARE, SOCIAL SECURITY ADMINISTRATION, 
                            DISABILITY INSURANCE PROGRAM STAFF, 
                            CHICAGO, ILLINOIS, A/SLMR No. 1128, 
                            FLRC No. 78A-152
 
 DEAR MR. LOFTIS:
 
    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, AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3400 (THE UNION)
 FILED AN UNFAIR LABOR PRACTICE COMPLAINT AGAINST THE DEPARTMENT OF
 HEALTH, EDUCATION, AND WELFARE, SOCIAL SECURITY ADMINISTRATION,
 DISABILITY INSURANCE PROGRAM STAFF, CHICAGO, ILLINOIS (THE ACTIVITY).
 THE COMPLAINT ALLEGED THAT THE ACTIVITY VIOLATED SECTION 19(A)(1) OF THE
 ORDER BY ENGAGING IN DILATORY TACTICS IN THE PROCESSING OF A GRIEVANCE.
 THE ADMINISTRATIVE LAW JUDGE (ALJ) CONCLUDED THAT, IN THE CIRCUMSTANCES
 OF THIS CASE, THE ACTIVITY'S REFUSAL TO PROCESS A GRIEVANCE BEYOND THE
 SECOND STEP OF THE PARTIES' NEGOTIATED GRIEVANCE PROCEDURE, PENDING
 COMPLETION OF A RELATED EQUAL EMPLOYMENT OPPORTUNITY (EEO) PROCEEDING,
 DID NOT CONSTITUTE A VIOLATION OF SECTION 19(A)(1) OF THE ORDER.
 
    THE ASSISTANT SECRETARY, IN AGREEMENT WITH THE ALJ, FOUND THAT THE
 ACTIVITY'S CONDUCT WAS NOT VIOLATIVE OF THE ORDER AND ORDERED THAT THE
 COMPLAINT BE DISMISSED.  IN SO CONCLUDING, THE ASSISTANT SECRETARY
 STATED:
 
    IN THIS REGARD, IT IS NOTED PARTICULARLY THAT AT ALL TIMES MATERIAL
 THE (ACTIVITY) HAD
 
    INDICATED ITS WILLINGNESS TO PROCEED WITH THE GRIEVANCE ONCE THE EEO
 MATTER HAD BEEN
 
    RESOLVED.  MOREOVER, UPON BECOMING AWARE THAT NO FURTHER USE OF THE
 EEO PROCEDURES WAS
 
    CONTEMPLATED, THE (ACTIVITY) INDICATED ITS WILLINGNESS TO RESUME
 CONSIDERATION OF THE MATTER
 
    UNDER THE NEGOTIATED GRIEVANCE PROCEDURE, AND TO PROCEED TO
 ARBITRATION IF THE (UNION) SO
 
    DESIRED.
 
    IN THE UNION'S PETITION FOR REVIEW, IT IS CONTENDED THAT THE
 ASSISTANT SECRETARY'S DECISION PRESENTS TWO MAJOR POLICY ISSUES:  (1)
 "WHETHER THE MEASUREMENT OF THE (A)GENCY'S BEHAVIOR IN TERMS OF
 SUBJECTIVE GOOD FAITH IN THIS PARTICULAR TYPE OF CASE IS CONSISTENT WITH
 THE INTENT AND PURPOSE OF THE EXECUTIVE ORDER";  AND (2) "THE DECISION
 PERMITS THE ASSISTANT SECRETARY TO ACT OUTSIDE OF HIS AUTHORITY BY
 REGULATING THE SUBSTANTIVE TERMS OF A (N)EGOTIATED (A)AGREEMENT." WITH
 REGARD TO THE FIRST ALLEGED MAJOR POLICY ISSUE, IT IS CONTENDED THAT A
 UNILATERAL CHANGE IN THE NEGOTIATED PROCEDURE WHERE THE INHERENT EFFECT
 IS TO INTERFERE WITH RIGHTS GRANTED BY THE ORDER WAS A PER SE VIOLATION
 OF THE ORDER REGARDLESS OF THE ACTIVITY'S GOOD FAITH.  IN CONNECTION
 WITH THE SECOND ALLEGED MAJOR POLICY ISSUE, IT IS ASSERTED THAT THE
 ASSISTANT SECRETARY IN EFFECT CHANGED THE SUBSTANTIVE TERMS OF THE
 PARTIES' AGREEMENT BY PERMITTING THE AGENCY, CONTRARY TO THE NEGOTIATED
 AGREEMENT, TO HOLD A GRIEVANCE IN ABEYANCE RATHER THAN PERMITTING A
 GRIEVANCE AND AN EEO ACTION TO PROCEED SIMULTANEOUSLY.
 
    IN THE AUTHORITY'S OPINION, YOUR PETITION FOR REVIEW DOES NOT MEET
 THE REQUIREMENTS OF SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES
 AND REGULATIONS WHICH INCORPORATES BY REFERENCE SECTION 2411.12 OF THE
 COUNCIL'S RULES.  THAT IS, IT DOES NOT APPEAR THAT THE DECISION OF THE
 ASSISTANT SECRETARY PRESENTS ANY MAJOR POLICY ISSUES, AND YOU NEITHER
 ALLEGE, NOR DOES IT APPEAR, THAT THE DECISION WAS ARBITRARY AND
 CAPRICIOUS.
 
    THUS, AS TO THE FIRST ALLEGED MAJOR POLICY ISSUE, TO THE EFFECT THAT
 THE ASSISTANT SECRETARY'S DECISION ALLOWING THE AGENCY'S BEHAVIOR TO BE
 MEASURED IN TERMS OF SUBJECTIVE GOOD FAITH IN THIS PARTICULAR TYPE OF
 CASE IS INCONSISTENT WITH THE INTENT AND PURPOSES OF THE EXECUTIVE
 ORDER, THE APPEAL FAILS TO PROVIDE ANY BASIS TO SUPPORT A CONTENTION
 THAT THE ASSISTANT SECRETARY'S DECISION IS IN ANY MANNER INCONSISTENT
 WITH THE PURPOSES AND POLICIES OF THE ORDER.  RATHER, SUCH ASSERTION
 AMOUNTS TO ESSENTIALLY A MERE DISAGREEMENT, WITH THE ASSISTANT
 ASECRETARY'S DETERMINATION THAT THE ACTIVITY'S CONDUCT DID NOT VIOLATE
 THE ORDER IN THE CIRCUMSTANCES OF THIS CASE AND THEREFORE PRESENTS NO
 BASIS FOR REVIEW.  SIMILARLY, AS TO THE SECOND ALLEGED MAJOR POLICY
 ISSUE THAT THE DECISION OF THE ASSISTANT SECRETARY PERMITS HIM TO ACT
 OUTSIDE HIS AUTHORITY BY REGULATING THE SUBSTANTIVE TERMS OF THE
 PARTIES' AGREEMENT, NO BASIS FOR AUTHORITY REVIEW IS PRESENTED.  IN THIS
 REGARD, THE APPEAL ONCE AGAIN FAILS TO PROVIDE ANY BASIS TO SUPPORT AN
 ALLEGATION THAT THE ASSISTANT SECRETARY'S DECISION IN EFFECT CHANGED THE
 SUBSTANTIVE TERMS OF THE PARTIES' AGREEMENT BY PERMITTING THE AGENCY TO
 HOLD A GRIEVANCE ABEYANCE.  RATHER, AS PREVIOUSLY NOTED, THE ASSISTANT
 SECRETARY FOUND THAT THE ACTIVITY "AT ALL TIMES . . . INDICATED ITS
 WILLINGNESS TO PROCEED WITH THE GRIEVANCE ONCE THE EEO MATTER HAD BEEN
 RESOLVED" AND, UPON DISCOVERING THAT NO FURTHER USE OF THE EEO
 PROCEDURES WAS CONTEMPLATED, "TO PROCEED TO ARBITRATION IF THE (UNION)
 SO DESIRED." SEE DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
 MILWAUKEE DISTRICT OFFICE, MILWAUKEE, WISCONSIN, ASSISTANT SECRETARY
 CASE NO. 51-3911(CA), FLRC 77A-135 (MAR. 21, 1978), REPORT NO. 148.
 
    SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT PRESENT A MAJOR
 POLICY ISSUE AND YOU NEITHER ALLEGE, NOR DOES IT APPEAR, THAT HIS
 DECISION IS ARBITRARY AND CAPRICIOUS, YOUR APPEAL FAILS TO MEET THE
 REQUIREMENTS FOR REVIEW AS SET FORTH IN SECTION 2400.2 OF THE
 AUTHORITY'S TRANSITION RULES OF PROCEDURE WHICH INCORPORATES BY
 REFERENCE SECTION 2411.12 OF THE COUNCIL'S RULES.  ACCORDINGLY, REVIEW
 OF YOUR APPEAL IS HEREBY DENIED.  /1/
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
    CC:  C.COHEN
 
    DHEW
 
    /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 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.