Social Security Administration, Bureau of Hearings and Appeals, Washington, D.C.

 1 FLRA No. 18
                                             APRIL 9, 1979
 
 MR. ALBERT B. CORROZZA
 LOCAL 3615, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO
 BUREAU OF HEARINGS AND APPEALS
 SOCIAL SECURITY ADMINISTRATION
 P. O. BOX 147
 ARLINGTON, VIRGINIA 22210
 
                     RE:  SOCIAL SECURITY ADMINISTRATION, BUREAU 
                          OF HEARINGS AND APPEALS, WASHINGTON, D.C., 
                          ASSISTANT SECRETARY Case No. 22-08859(CA), 
                          FLRC No. 78A-158
 
 DEAR MR. CORROZZA:
 
    THE AUTHORITY HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF
 THE ASSISTANT SECRETARY'S DECISION, AND THE AGENCY'S OPPOSITION THERETO,
 IN THE ABOVE-ENTITLED CASE.
 
    IN THIS CASE, THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 3615 (THE UNION) FILED AN UNFAIR LABOR PRACTICE COMPLAINT
 ALLEGING THAT THE SOCIAL SECURITY ADMINISTRATION, BUREAU OF HEARINGS AND
 APPEALS, WASHINGTON, D.C. (THE ACTIVITY) HAD VIOLATED SECTION 19(A)(1)
 AND (6) OF THE ORDER BY DENYING A UNION REQUEST THAT A RECENTLY-ELECTED
 UNION OFFICER BE GRANTED AN EXEMPTION FROM SERVING AS AN ACTING
 SUPERVISOR DURING HIS TERM OF OFFICE.  THE UNION ASSERTED THAT THIS
 DENIAL VIOLATED A SETTLEMENT AGREEMENT REACHED IN A PRIOR UNFAIR LABOR
 PRACTICE PROCEEDING AND CONSTITUTED A UNILATERAL CHANGE IN PERSONNEL
 POLICIES AND PROCEDURES WHICH WERE ESTABLISHED PURSUANT TO THE
 SETTLEMENT AGREEMENT.
 
    AS FOUND BY THE REGIONAL ADMINISTRATOR (RA), IN ACCORDANCE WITH THE
 SETTLEMENT AGREEMENT IN A PREVIOUS UNFAIR LABOR PRACTICE PROCEEDING, THE
 ACTIVITY ISSUED A POLICY GUIDELINE WHICH PROVIDED:
 
    IF, IN THE NORMAL COURSE OF BUSINESS, A UNION OFFICIAL OR BARGAINING
 UNIT MEMBER IS IN A
 
    POSITION TO BE PROPERLY DESIGNATED ACTING SUPERVISOR, THAT INDIVIDUAL
 MAY NOT BE DENIED THE
 
    OPPORTUNITY ON THE GROUNDS OF HIS OR HER UNION ACTIVITIES.  AT THE
 SAME TIME, THE EXECUTIVE
 
    ORDER REQUIRES THAT THE INDIVIDUAL CEASE TO PERFORM OFFICIAL UNION
 DUTIES WHILE ACTING AS
 
    SUPERVISOR.  WHETHER THIS IS FOR A BRIEF OR EXTENDED PERIOD, THE
 EMPLOYEE IN THIS SITUATION
 
    MUST CHOOSE BETWEEN ONE SET OF RESPONSIBILITIES OR THE OTHER.  IF HE
 OR SHE ACCEPTS THE
 
    DESIGNATION OF ACTING SUPERVISOR, THEN HE/SHE MUST REFRAIN FROM ALL
 ACTIVITIES ON BEHALF OF
 
    THE UNION.
 
    AFTER THE GUIDELINE HAD BEEN ISSUED, A SUPERVISOR DESIGNATED A
 NEWLY-ELECTED UNION OFFICER AS AN ACTING SUPERVISOR FOR A THREE-DAY
 PERIOD.  THE UNION OFFICER REQUESTED THAT HE BE EXCUSED FROM THE
 ASSIGNMENT, BUT THE SUPERVISOR ORALLY DENIED THE REQUEST.  THE UNION
 PRESIDENT ADDRESSED A MEMORANDUM TO THE SUPERVISOR REQUESTING THAT THE
 UNION OFFICER BE GRANTED A CONTINUING EXEMPTION FROM ACTING AS A
 SUPERVISOR DURING HIS TENURE AS A UNION OFFICER.  IN RESPONSE, THE
 SUPERVISOR RESCINDED THE DESIGNATION, BUT STATED THAT GRANTING THE
 BLANKET EXEMPTION SOUGHT BY THE UNION WOULD BE CONTRARY TO THE
 SETTLEMENT AGREEMENT.  NEVERTHELESS, THE UNION OFFICER WAS NEITHER ASKED
 NOR COMPELLED TO SERVE AS AN ACTING SUPERVISOR DURING HIS TERM OF
 OFFICE.
 
    THE RA CONCLUDED THAT NO REASONABLE BASIS FOR THE COMPLAINT HAD BEEN
 ESTABLISHED.  IN SO CONCLUDING HE STATED:
 
    SINCE THERE IS NO EVIDENCE THAT (THE ACTIVITY) EVER AGREED TO GRANT
 THE TYPE OF BLANKET
 
    WAIVER SOUGHT BY (THE UNION) . . . IT CAN HARDLY BE CONCLUDED THAT
 (THE ACTIVITY) VIOLATED THE
 
    SETTLEMENT AGREEMENT BY DENYING THE REQUEST.
 
    MOREOVER, THE RA FOUND NO EVIDENCE THAT A PAST PRACTICE EVER EVER
 EXISTED WHEREBY UNION OFFICERS COULD OBTAIN A CONTINUING EXEMPTION FROM
 ACTING SUPERVISORY DUTIES FOR THEIR ENTIRE TERM OF UNION OFFICE.
 THEREFORE, HE CONCLUDED THAT THE ACTIVITY'S DENIAL OF THE REQUEST FOR A
 BLANKET EXEMPTION DID NOT CONSTITUTE A UNILATERAL CHANGE IN AN
 ESTABLISHED PERSONNEL POLICY OR PRACTICE.
 
    THE ASSISTANT SECRETARY DENIED THE UNION'S REQUEST FOR REVIEW SEEKING
 REVERSAL OF THE RA'S DISMISSAL OF THE COMPLAINT, STATING IN PERTINENT
 PART:
 
    IN AGREEMENT WITH THE (RA), I FIND THAT THE EVIDENCE HEREIN IS
 INSUFFICIENT TO ESTABLISH A
 
    REASONABLE BASIS FOR THE INSTANT COMPLAINT AND THAT, CONSEQUENTLY,
 FURTHER PROCEEDINGS IN THIS
 
    MATTER ARE UNWARRANTED, THUS, IN THE CIRCUMSTANCES OF THIS CASE, I
 FIND THAT THE (ACTIVITY'S)
 
    ACTIONS DID NOT CONSTITUTE A PATENT BREACH OF THE PARTIES' PRIOR
 SETTLEMENT AGREEMENT, AS THE
 
    LANGUAGE OF THE AGREEMENT ARGUABLY WAS SUSCEPTIBLE OF VARYING
 INTERPRETATIONS.
 
    IN YOUR PETITION FOR REVIEW ON BEHALF OF THE UNION, YOU ALLEGE THAT
 THE ASSISTANT SECRETARY WAS ARBITRARY AND CAPRICIOUS IN DENYING A
 HEARING ". . . BECAUSE THERE WAS SUBSTANTIAL EVIDENCE THAT THE
 (A)CTIVITY INTENTIONALLY BREACHED A FORMER UNFAIR LABOR PRACTICE (ULP)
 SETTLEMENT TO THE DETRIMENT OF (A) UNION OFFICER." YOU FURTHER ALLEGE
 THAT A MAJOR POLICY ISSUE IS PRESENTED IN THAT "THE ASSISTANT
 SECRETARY'S CAPRICIOUS DENIAL WILL PERMIT FEDERAL AGENCIES TO BREACH ULP
 SETTLEMENTS AND DEFEAT THE PURPOSE OF THE ORDER."
 
    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 OR PRESENT ANY MAJOR
 POLICY ISSUES.
 
    AS TO YOUR ALLEGATION THAT THE ASSISTANT SECRETARY'S DENIAL OF A
 HEARING WAS ARBITRARY AND CAPRICIOUS, IT DOES NOT APPEAR THAT THE
 ASSISTANT SECRETARY ACTED WITHOUT REASONABLE JUSTIFICATION IN REACHING
 HIS DECISION IN THE CIRCUMSTANCES OF THIS CASE.  RATHER, YOUR ASSERTION
 THAT THERE WAS SUBSTANTIAL EVIDENCE THAT THE ACTIVITY INTENTIONALLY
 BREACHED A PRIOR UNFAIR LABOR PRACTICE SETTLEMENT CONSTITUTES, IN
 ESSENCE, NOTHING MORE THAN MERE DISAGREEMENT WITH THE ASSISTANT
 SECRETARY'S DETERMINATION, PURSUANT TO HIS REGULATIONS, THAT THERE WAS
 INSUFFICIENT EVIDENCE TO ESTABLISH A REASONABLE BASIS FOR THE COMPLAINT,
 AND THEREFORE PROVIDES NO BASIS FOR REVIEW.  NOR IS A MAJOR POLICY ISSUE
 PRESENTED, AS ALLEGED, WITH REGARD TO WHETHER THE ASSISTANT SECRETARY'S
 DECISION WILL PERMIT FEDERAL AGENCIES TO BREACH UNFAIR LABOR PRACTICE
 SETTLEMENT AGREEMENTS.  THUS, IN OUR VIEW, SUCH ALLEGED MAJOR POLICY
 ISSUE AGAIN CONSTITUTES NOTHING MORE THAN MERE DISAGREEMENT WITH THE
 ASSISTANT SECRETARY'S FINDING THAT NO REASONABLE BASIS FOR THE COMPLAINT
 HAD BEEN ESTABLISHED IN THE CIRCUMSTANCES OF THIS CASE, BUT RATHER THAT
 THE ACTIVITY'S CONDUCT "DID NOT CONSTITUTE A PATENT BREACH OF THE
 PARTIES' PRIOR SETTLEMENT AGREEMENT, AS THE LANGUAGE OF THE AGREEMENT
 ARGUABLY WAS SUSCEPTIBLE OF VARYING INTERPRETATIONS."
 
    SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
 AND CAPRICIOUS OR PRESENT ANY MAJOR POLICY ISSUES, 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, YOUR
 PETITION FOR REVIEW IS HEREBY DENIED.  /1/
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
    CC:  I. BECKER
 
    SSA
 
    /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
 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.