Air Force Logistics Command, Department of the Air Force, Wright-Patterson Air Force Base, Ohio

 1 FLRA No. 52
 
 MS. MARY LYNN WALKER
 ACTING DIRECTOR
 CONTRACT AND APPEALS DIVISION
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 1325 MASSACHUSETTS AVENUE, N.W.
 WASHINGTON, D.C.  20005
 
                      RE:  AIR FORCE LOGISTICS COMMAND, DEPARTMENT 
                           OF THE AIR FORCE, WRIGHT-PATTERSON AIR 
                           FORCE BASE, OHIO, ASSISTANT SECRETARY 
                           Case No. 53-10541(CA), FLRC No. 78A-167
 
 DEAR MS. WALKER:
 
    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 (THE UNION) FILED AN UNFAIR LABOR PRACTICE COMPLAINT AGAINST AIR
 FORCE LOGISTICS COMMAND, DEPARTMENT OF THE AIR FORCE, WRIGHT-PATTERSON
 AIR FORCE BASE, OHIO (AFLC).  THE COMPLAINT ALLEGED THAT AFLC VIOLATED
 SECTION 19(A)(1) AND (6) OF THE ORDER BY ISSUING A MEMORANDUM, ON THE
 DAY FOLLOWING THE UNION'S CERTIFICATION AS THE EXCLUSIVE BARGAINING
 REPRESENTATIVE OF A CONSOLIDATED COMMAND-WIDE UNIT, WHICH SET FORTH
 "UNILATERALLY ESTABLISHED PROCEDURES FOR NEGOTIATING CHANGES IN
 PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING
 CONDITIONS WITHOUT GIVING DUE REGARD TO THE OBLIGATION TO NEGOTIATE WITH
 THE CERTIFIED BARGAINING AGENT."
 
    THE REGIONAL ADMINISTRATOR (RA) FOUND, IN PERTINENT PART, THAT THE
 UNION HAD FAILED TO MEET ITS BURDEN OF PROOF THAT A REASONABLE BASIS FOR
 THE COMPLAINT HAD BEEN ESTABLISHED.  ACCORDINGLY, HE DISMISSED THE
 UNION'S COMPLAINT.  THE ASSISTANT SECRETARY, IN AGREEMENT WITH THE RA,
 FOUND THAT FURTHER PROCEEDINGS WERE UNWARRANTED AS A REASONABLE BASIS
 FOR THE ALLEGATIONS CONTAINED IN THE COMPLAINT HAD NOT BEEN ESTABLISHED.
  THE ASSISTANT SECRETARY NOTED PARTICULARLY " . . . THAT THE (UNION) HAS
 NOT SHOWN HOW THE (AFLC), IN FACT, CHANGED ANY WORKING CONDITIONS, AND
 DID NOT ALLEGE THAT IT FAILED TO MEET ANY SPECIFIC CONTRACTUAL
 OBLIGATIONS." ACCORDINGLY, HE DENIED THE UNION'S REQUEST FOR REVIEW
 SEEKING REVERSAL OF THE RA'S DISMISSAL OF THE COMPLAINT.
 
    IN THE UNION'S PETITION FOR REVIEW, IT IS CONTENDED, IN ESSENCE, THAT
 THE ASSISTANT SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS IN THAT:
 (1) THE AFLC MEMO UNILATERALLY ESTABLISHED NEW PERSONNEL POLICIES AND
 PRACTICES, THEREBY ESTABLISHING A REASONABLE BASIS FOR THE UNION'S
 COMPLAINT;  (2) THE ASSISTANT SECRETARY IMPROPERLY RELIED ON THE FACT
 THAT THE UNION DID NOT ALLEGE THAT AFLC FAILED TO MEET ANY SPECIFIC
 CONTRACTUAL OBLIGATIONS, SINCE THE BARGAINING RIGHTS IN ISSUE WERE
 PROTECTED BY THE ORDER ITSELF AND DID NOT REQUIRE THE EXISTENCE OF AN
 AGREEMENT COVERING THE NEWLY CERTIFIED CONSOLIDATED UNIT;  AND (3) THE
 ASSISTANT SECRETARY'S INVESTIGATIVE EFFORT TO DETERMINE THE VALIDITY OF
 THE UNION'S COMPLAINT WAS "MINIMAL AND FAULTY."
 
    IN THE AUTHORITY'S OPINION, THE PETITION FOR REVIEW 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, IT DOES NOT APPEAR THAT THE DECISION OF THE ASSISTANT SECRETARY WAS
 ARBITRARY AND CAPRICIOUS AND IT NEITHER IS ALLEGED, NOR DOES IT
 OTHERWISE APPEAR, THAT HIS DECISION RAISES A MAJOR POLICY ISSUE.
 
    AS TO THE CONTENTION 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.  RATHER, THE FOREGOING ASSERTIONS CONSTITUTE ESSENTIALLY MERE
 DISAGREEMENT WITH THE ASSISTANT SECRETARY'S FINDING, PURSUANT TO HIS
 REGULATIONS, THAT NO REASONABLE BASIS FOR THE ALLEGATIONS CONTAINED IN
 THE COMPLAINT HAD BEEN ESTABLISHED.  IN THIS REGARD THE AUTHORITY NOTES
 PARTICULARLY THE ASSISTANT SECRETARY'S FINDING " . .  . THAT THE (UNION)
 HAS NOT SHOWN HOW THE (AFLC), IN FACT, CHANGED ANY WORKING CONDITIONS
 (OR) FAILED TO MEET ANY SPECIFIC CONTRACTUAL OBLIGATIONS." ACCORDINGLY,
 NO BASIS FOR REVIEW IS THEREBY PRESENTED.
 
    SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
 AND CARICIOUS AND IT NEITHER IS ALLEGED, NOR DOES IT 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 WHICH INCORPORATES BY REFERENCE SECTION
 2411.12 OF THE COUNCIL'S RULES OF PROCEDURE.  ACCORDINGLY, THE PETITION
 FOR REVIEW IS HEREBY DENIED.  /1/
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
    CC:  R. T. MCLEAN
 
    AIR FORCE
 
    /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.