Department of Interior, Bureau of Indian Affairs, Phoenix Area Office, Phoenix, Arizona

 1 FLRA NO. 23
                                            APRIL 17, 1979
 
 MR. ROBERT J. ENGLEHART
 STAFF ATTORNEY
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES
 1016 16TH STREET, N.W.
 WASHINGTON, D.C.  20036
 
                           RE:  DEPARTMENT OF INTERIOR, BUREAU OF 
                                INDIAN AFFAIRS, PHOENIX AREA OFFICE, 
                                PHOENIX, ARIZONA, A/SLMR No. 1126,
                                FLRC No. 78A-150
 
 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, THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 520
 (THE UNION) FILED AN UNFAIR LABOR PRACTICE COMPLAINT AGAINST THE
 DEPARTMENT OF INTERIOR, BUREAU OF INDIAN AFFAIRS, PHOENIX AREA OFFICE,
 PHOENIX, ARIZONA (THE ACTIVITY).  THE COMPLAINT ALLEGED THAT THE
 ACTIVITY VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY IMPLEMENTING
 AN AGENCY-WIDE DIRECTIVE TO DISCONTINUE THE PRACTICE OF TRANSPORTING
 EMPLOYEES, BY GOVERNMENT OWNED VEHICLES, BETWEEN THEIR HOMES AND THEIR
 PLACE OF WORK WITHOUT AFFORDING THE UNION THE OPPORTUNITY TO NEGOTIATE
 WITH REGARD TO THE DECISION ITSELF, OR ITS IMPLEMENTATION AND IMPACT ON
 ADVERSELY AFFECTED EMPLOYEES.
 
    THE ADMINISTRATIVE LAW JUDGE (ALJ) RECOMMENDED THAT THE COMPLAINT BE
 DISMISSED IN ITS ENTIRETY, FINDING THAT ALL ISSUES RAISED IN THE INSTANT
 COMPLAINT HAD PREVIOUSLY BEEN RAISED IN A GRIEVANCE FILED UNDER THE
 NEGOTIATED AGREEMENT BETWEEN THE ACTIVITY AND THE UNION AND, THUS,
 SECTION 19(D) OF THE ORDER BARRED HIS CONSIDERATION OF THE COMPLAINT
 HEREIN.  THE ASSISTANT SECRETARY ADOPTED THE ALJ'S FINDINGS, CONCLUSIONS
 AND RECOMMENDATION THAT FURTHER PROCEEDINGS ON THE INSTANT COMPLAINT
 WERE UNWARRANTED AND, ACCORDINGLY, DISMISSED IT.  IN SO DOING, HE
 STATED:
 
    (T)HE EVIDENCE ESTABLISHES THAT THE ISSUES RAISED (HEREIN) WERE
 PREVIOUSLY RAISED AND
 
    CONSIDERED AT SEVERAL STEPS OF THE PARTIES' NEGOTIATED GRIEVANCE
 PROCEDURE.  UNDER THESE
 
    CIRCUMSTANCES, I AGREE WITH THE (ALJ'S) CONCLUSION THAT (S)ECTION
 19(D) OF THE ORDER PRECLUDES
 
    CONSIDERATION OF THE ISSUES INVOLVED UNDER THE UNFAIR LABOR PRACTICE
 PROCEDURES OF THE
 
    EXECUTIVE ORDER.
 
    IN THE UNION'S PETITION FOR REVIEW, IT IS CONTENDED THAT THE
 ASSISTANT SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS AND PRESENTS
 THE FOLLOWING MAJOR POLICY ISSUE:  "IF THE UNION'S GRIEVANCE IS
 PREVENTED, SOLELY THROUGH MANAGEMENT'S CONDUCT, FROM BEING DECIDED UNDER
 THE NEGOTIATED GRIEVANCE PROCEDURE, DOES (SECTION) 19(D) BAR PROCESSING
 OF THE ISSUE AS AN UNFAIR LABOR PRACTICE?" /1/
 
    IN THE AUTHORITY'S OPINION, THE UNION'S 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
 RAISE ANY MAJOR POLICY ISSUES.
 
    WITH RESPECT TO THE UNSUPPORTED 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 CIRCUMSTANCES OF THIS CASE.  AS TO THE
 ALLEGED MAJOR POLICY ISSUE REGARDING THE ASSISTANT SECRETARY'S FINDING
 THAT SECTION 19(D) PRECLUDED FURTHER CONSIDERATION OF THE INSTANT
 COMPLAINT, NOTING PARTICULARLY THE ASSISTANT SECRETARY'S FINDING THAT
 "THE EVIDENCE ESTABLISHE(D) THAT THE ISSUES RAISED (HEREIN) WERE
 PREVIOUSLY RAISED AND CONSIDERED AT SEVERAL STEPS OF THE PARTIES'
 NEGOTIATED GRIEVANCE PROCEDURE," IN THE AUTHORITY'S VIEW NO MAJOR POLICY
 ISSUE IS PRESENTED WARRANTING REVIEW.  RATHER, THE UNION'S ASSERTION IN
 THIS REGARD CONSTITUTES ESSENTIALLY A DISAGREEMENT WITH THE ABOVE
 FINDING BY THE ASSISTANT SECRETARY, BASED UPON THE EVIDENCE PRESENTED IN
 THE PARTICULAR CIRCUMSTANCES OF THIS CASE, AND THEREFORE DOES NOT
 PRESENT A BASIS FOR AUTHORITY REVIEW.
 
    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 SET FORTH 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.  /2/
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
    CC:  C. GEIOGRAMAH
 
    INTERIOR
 
    /1/ THE UNION FURTHER ALLEGES IN ITS APPEAL THAT, "(A)SSUMING THE
 UNDERLYING ISSUE IN THIS CASE IS PROPERLY AN UNFAIR LABOR PRACTICE," THE
 ALJ ERRONEOUSLY FOUND UNLAWFUL THE ACTIVITY'S PAST PRACTICE OF PROVIDING
 VAN TRANSPORTATION FOR ITS EMPLOYEES.  HOWEVER, THE AUTHORITY NOTES THAT
 THE ASSISTANT SECRETARY FOUND IT "UNNECESSARY TO PASS ON . . . THE
 (ALJ'S) CONCLUSION WITH RESPECT TO THE MERITS OF THE INSTANT COMPLAINT .
 . .," AND THEREFORE, APART FROM OTHER CONSIDERATIONS, NO BASIS FOR
 REVIEW IS THEREBY PRESENTED.
 
    /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
 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.