Department of Health, Education and Welfare, Social Security Administration, Bureau of Hearings and Appeals, Region II, San Juan, Puerto Rico 

 1 FLRA No. 50
                                            JUNE 11, 1979
 
 MR. PETER B. BROIDA
 STAFF COUNSEL
 OFFICE OF THE GENERAL COUNSEL
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 1325 MASSACHUSETTS AVENUE, N.W.
 WASHINGTON, D.C.  20005
 
                       RE:  DEPARTMENT OF HEALTH, EDUCATION AND 
                            WELFARE, SOCIAL SECURITY ADMINISTRATION, 
                            BUREAU OF HEARINGS AND APPEALS, REGION II,
                            SAN JUAN, PUERTO RICO, A/SLMR Nos. 1127 AND
                            1154, Case No. 0-AS-1
 
 DEAR MR. BROIDA:
 
    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 3534 (THE UNION) FILED AN UNFAIR LABOR PRACTICE COMPLAINT
 ALLEGING THAT THE SOCIAL SECURITY ADMINISTRATION, BUREAU OF HEARINGS AND
 APPEALS, REGION II, SAN JUAN, PUERTO RICO (THE ACTIVITY) VIOLATED
 SECTION 19(A)(1) AND (2) OF THE ORDER BY ASSIGNING A "SATISFACTORY"
 RATHER THAN THE RECOMMENDED "OUTSTANDING" PERFORMANCE RATING TO AN
 EMPLOYEE IN ONE CATEGORY ("GETTING ALONG WITH OTHERS") BECAUSE OF HER
 ACTIVITIES AS A UNION SHOP STEWARD.  THE ADMINISTRATIVE LAW JUDGE (ALJ)
 CONCLUDED THAT THE CHANGE IN THE EMPLOYEE'S PERFORMANCE APPRAISAL WAS
 NOT MOTIVATED, EVEN IN PART, BY CONSIDERATIONS OF HER UNION ACTIVITIES.
 CONSEQUENTLY, HE RECOMMENDED THAT THE COMPLAINT BE DISMISSED.  ON
 REVIEW, THE ASSISTANT SECRETARY NOTED THAT THE ALJ HAD MADE NO FINDING
 OF FACT CONCERNING WHETHER THE EMPLOYEE'S SUPERVISOR HAD BEEN TOLD BY
 THE OFFICIAL WHO REVISED THE RECOMMENDED RATING THAT THE CHANGE WAS
 MOTIVATED, IN PART, BY THE EMPLOYEE'S UNION ACTIVITIES.  THE ASSISTANT
 SECRETARY CONCLUDED THAT "SUCH A FINDING MAY WELL BE DETERMINATIVE OF
 WHETHER A VIOLATION OCCURRED HEREIN." ACCORDINGLY, HE REMANDED THE
 SUBJECT CASE TO THE ALJ "FOR THE PURPOSE OF MAKING AN APPROPRIATE
 RESOLUTION AS TO THE STATEMENT IN QUESTION" (A/SLMR NO. 1127).
 
    ON REMAND, THE ALJ CONSTRUED THE ASSISTANT SECRETARY'S INSTRUCTIONS
 TO MEAN THAT " . . . I SHOULD MAKE A FINDING, NOT WHETHER UNION
 CONSIDERATIONS IN FACT PLAYED ANY PART IN THE RATING BUT WHETHER (THE
 RATER) INDICATED TO (THE SUPERVISOR) THAT THE RATING WAS BASED IN PART
 ON UNION ACTIVITIES." THE ALJ FOUND THAT THE RATING OFFICIAL DID NOT
 MAKE SUCH A STATEMENT.  IN THIS CONNECTION, HE NOTED THAT THE SUPERVISOR
 APPEARED TO BE "CONFUSED ABOUT A NUMBER OF THINGS PERTAINING TO (THE
 EMPLOYEE'S) RATING" WHILE THE RATING OFFICIAL "DID NOT APPEAR TO BE
 CONFUSED ABOUT ANYTHING." THEREFORE, THE ALJ AGAIN RECOMMENDED THAT THE
 COMPLAINT BE DISMISSED.  THE ASSISTANT SECRETARY, NOTING THE ALJ'S
 FINDING OF FACT THAT THE RATING OFFICIAL DID NOT MAKE THE STATEMENT
 ATTRIBUTED TO HIM, CONCLUDED "THAT THE EVIDENCE HEREIN IS INSUFFICIENT
 TO ESTABLISH THAT THE (ACTIVITY'S) CONDUCT IN THIS MATTER WAS BASED, IN
 WHOLE OR IN PART, ON THE UNION ACTIVITY OF THE (EMPLOYEE)." HE
 ACCORDINGLY ORDERED DISMISSAL OF THE COMPLAINT IN ITS ENTIRETY (A/SLMR
 NO. 1154).
 
    IN THE UNION'S PETITION FOR REVIEW, IT IS CONTENDED THAT "THE
 DECISION OF THE ASSISTANT SECRETARY IS WITHOUT RATIONAL FOUNDATION AND
 IS THEREFORE ARBITRARY" IN THAT HE FAILED TO MAKE AN INDEPENDENT
 CREDIBILITY FINDING AS TO WHETHER THE RATING OFFICIAL IN FACT MADE THE
 STATEMENT ATTRIBUTED TO HIM.  IT IS ASSERTED, IN THIS REGARD, THAT THE
 ALJ FAILED TO EXPLAIN THE BASIS FOR HIS CREDIBILITY DETERMINATION, AND
 THAT THE ASSISTANT SECRETARY THEREFORE SHOULD HAVE MADE HIS OWN FINDINGS
 UPON THE WEIGHT OF THE EVIDENCE IN THE RECORD.
 
    IN THE AUTHORITY'S OPINION, THE 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, AND IT IS NEITHER
 ALLEGED, NOR DOES IT OTHERWISE APPEAR, THAT HIS DECISION PRESENTS ANY
 MAJOR POLICY ISSUES.
 
    WITH RESPECT TO THE ALLEGATION THAT THE ASSISTANT SECRETARY'S
 DECISION IS "ARBITRARY," IT DOES NOT APPEAR THAT THE ASSISTANT SECRETARY
 ACTED WITHOUT REASONABLE JUSTIFICATION IN REACHING HIS DECISION THAT THE
 COMPLAINT SHOULD BE DISMISSED.  RATHER, THE CONTENTIONS IN THIS REGARD
 CONSTITUTE, IN ESSENCE, MERE DISAGREEMENT WITH THE ASSISTANT SECRETARY'S
 DETERMINATION, BASED UPON THE ALJ'S CREDIBILITY FINDINGS, THAT THE
 EVIDENCE WAS INSUFFICIENT TO ESTABLISH A VIOLATION OF THE ORDER AS
 ALLEGED, AND THEREFORE DO NOT PROVIDE A BASIS FOR AUTHORITY REVIEW.
 MOREOVER, IT IS NEITHER ALLEGED, NOR DOES IT APPEAR, THAT THE ASSISTANT
 SECRETARY'S DECISION RAISES A MAJOR POLICY ISSUE WARRANTING AUTHORITY
 REVIEW.
 
    SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
 AND CAPRICIOUS, AND IT IS NEITHER ALLEGED, NOR DOES IT OTHERWISE APPEAR,
 THAT HIS DECISION PRESENTS A MAJOR POLICY ISSUE, THE 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, THE
 PETITION FOR REVIEW IS HEREBY DENIED.  /1/
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
    CC:  I. L. 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 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.