C T '

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DECISIONS AND INTERPRETATIONS 

OF THE

FEDERAL LABOR RELATIONS COUNCIL

Including decisions on appeals, interpretations of 

Executive Order 11491, and statements on major 

policy issues.

Volume 2 

(Cite as: 2 FLRC—)

January 1, 1974 through December 31, 1974

U.S. Government Printing Office 

Washington, D.C. 1976

FLRC-76-1
MEMBERS OF THE FEDERAL LABOR RELATIONS COUNCIL

During the period January 1, 1974 through 

December 31, 1974

CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION

Honorable Robert E. Hampton 

Chairman of the Council 

Jan. 1, 1974-

SECRETARY OF LABOR

Honorable Peter J. Brennan 

Jan. 1, 1974-

DIRECTOR, OFFICE OF MANAGEMENT AND BUDGET

Honorable Roy L. Ash 

Jan. 1, 1974-

EXECUTIVE DIRECTOR

Henry B. Frazier III 

Jan. 1, 1974- 

1900 E Street, NW. 

Washington, D.C. 20415

For sale by the Superintendent of Docunnents, U.S. Government Printing Office

Washington, D.C. 20402 - Price $7.30

Stock No. 0 52 -003-00175-6
CONTENTS

Part I. Tables of Decisions and interpretations

Appeals Decisions by Docket Numbers........................................ 7

Appeals Decisions by Agencies..................................................... 15

Appeals Decisions by Labor Organizations................................... 25

Appeals Decisions by Individuals................................................. 31

Interpretations and Policy Statements

by Docket Numbers and Titles......................................................... 35

Part ii. Texts of Decisions and Interpretations

Appeals Decisions............................................................................. 41

Interpretations and Policy Statements.......................................... 305

Part 111. Subject iS/latter index

Subject Matter Index......................................................................... 315

PART I.

TABLES OF DECISIONS AND INTERPRETATIONS

January 1, 1974 through December 31, 1974

APPEALS DECISIONS BY DOCKET NUMBERS

January 1, 1974 through December 31, 1974
APPEALS WITHDRAWN

FLRC NUMBER DATE

72A-38 January 30, 197A

74A-7 March 7, 1974

74A-42 December 18, 1974

74A-43 December 9, 1974

74A-45 December 9, 1974

8
APPEALS DECISIONS BY DOCKET NUMBERS

FLRC Number Type Case Title

72A-50 A/S Internal Revenue Service, Office of the

District Director, Jacksonville District, 

Jacksonville, Florida, A/SLMR No. 214

73A-1 NEC Federal Employees Metal Trades Council of

Charleston and Charleston Naval Shipyard, 

Charleston, South Carolina

73A-4 ARB AFGE, Local 2532 and Small Business

Administration (Dorsey, Arbitrator)

Y 73A-6 NEC- Federal Employees Metal Trades Council of

Charleston and Charleston Naval Shipyard, 

Charleston, South Carolina

73A-16 NEC Local 174 International Federation of

Professional and Technical Engineers, 

AFL-CIO, CLC and Long Beach Naval Shipyard, 

Long Beach, California

73A-21 NEC Local Lodge 830, International Association

of Machinists and Aerospace Workers and 

Louisville Naval Ordnance Station, Department 

of the Navy

\l 73A-22 NEC American Federation of Government Employees

Local 997 and Veterans Administration 

Hospital, Montgomery, Alabama

73A-25 NEC AFGE (National Border Patrol Council and

National Council of Immigration and Naturalization Service Locals) and Immigration and 

Naturalization Service

73A-32 A/S Internal Revenue Service, Chicago District,

A/SLMR No. 279
73A-33 A/S Internal Revenue Service, Western Service 221

Center, Ogden, Utah, A/SLMR No. 280

73A-42 ARB Veterans Administration Hospital, Canandaigua, 164

New York and Local 227, Service Employees 

International Union, Buffalo, New York 

(Miller, Arbitrator)

73A-43 A/S American Federation of Government Employees, 232

Local 1650, Beeville, Texas (Naval Air Station,

Chase Field, Beeville, Texas) and American 

Federation of Government Employees,

Washington, D.C., A/SLMR No. 294

73A-44 ARB Small Business Administration and American 262

Federation of Government Employees, Local 

2532 (Kleeb, Arbitrator)

73A-45 A/S Department of Health, Education, and Welfare, 85

Bureau of Retirement and Survivors Insurance 

Payment Center, Birmingham, Alabama, Assistant 

Secretary Case No. 40-4708 (CA)

73A-46 ARB Naval Rework Facility, Naval Air Station, 195

Jacksonville, Florida and National Association 

of Government Employees, Local R5-82 

(Goodman, Arbitrator)

yj 73A-48 NEG American Federation of Government Employees, 88

Local 53 and Navy Regional Finance Center,

Norfolk, Virginia

73A-50 ARB Federal Aviation Administration,- U.S. Department 111

of Transportation, and National Association of 

Air Traffic Specialists, Des Moines, Iowa,

Flight Service Station (Hatcher, Arbitrator)

73A-51 ARB American Federation of Government Employees, 200

Local 2449 and Headquarters, Defense Supply 

Agency and DSA Field Activities, Cameron 

Station, Alexandria, Virginia (Jaffee, Arbitrator)

FLRC Number Type Case Title Page

10
Hi

-C.

FLRC Number Type Case Title

73A-52 A/S Military Ocean Terminal, Bayonne,

New Jersey, Assistant Secretary Case 

No. 32-3101

73A-53 A/S National Labor Relations Board, Region 17,

and National Labor Relations Board and 

David A. Nixon, Assistant Secretary Case 

No. 60-3035 (CA)

73A-54 A/S Veterans Administration Hospital,

Portland, Oregon, A/SLMR No. 308

73A-55 A/S Department of Justice, U.S. Bureau

of Prisons, U.S. Penitentiary, Lewisburg, 

Pennsylvania, Assistant Secretary Case 

No. 20-4035 (AP)

73A-58 A/s United States Air Force 321st Combat

Support Group, Grand Forks Air Force 

Base, North Dakota, A/SLMR No. 319

73A-60 A/S Department of the Air Force, Ellsworth

Air Force Base, South Dakota and National 

Federation of Federal Employees, Local No. 179, 

Assistant Secretary Case No. 60-3412 (RO)

73A-61 A/S Veterans Administration Hospital,

Tampa, Florida, A/SLMR No. 330

73A-62 A/s National Association of Government

Employees, Local R14-32 (Fort Leonard 

Wood), Fort Leonard Wood, Missouri, 

Assistant Secretary Case No. 62-3712 

(CO)

73A-63 A/S Department of the Army, United States

Army Base Command, Okinawa, A/SLMR No. 243

73A-64 A/S Department of Defense, Air Force Defense

Language Institute, English Language Branch, 

Lackland Air Force Base, Texas and American 

Federation of Government Employees, Local 

Union 1367, A/SLMR No. 322

11
FLRC Number Type Case Title Page

73A-65 A/S General Services Administration, 43

Region 9, San Francisco, California,

A/SLMR No. 333

73A-66 A/s U.S. Air Force, Andrews Air Force Base, 116

Base Fire Department, Assistant 

Secretary Case No. 22-3954 (CA)

yj 73A-67 ARB National Council of OEO Locals, AFGE, 293

AFL-CIO and Office of Economic Opportunity 

(Harkless, Arbitrator)

74A-1 ARB Professional Air Traffic Controllers 145

Organization and Federal Aviation 

Administration, Department of 

Transportation (Britton, Arbitrator)

74A-2 NEC * Local Lodge 2333, International Association 280

of Machinists and Aerospace Workers and 

Wright-Patterson Air Force Base, Ohio

74A-3 A/S Office of Economic Opportunity, 119

Region V, Chicago, Illinois,

A/SLMR No. 334

74A-4 ARB American Federation of Government 122

Employees Local 2677 and Office of 

Economic Opportunity (Dougherty,

Arbitrator)

74A-5 A/S Veterans Administration Hospital, 127

Butler, Pa., Assistant Secretary 

Case No. 21-3923 (RO)

74A-6 A/S Northwest Area Exchange (AAFES), 79

A/SLMR No. 338

74A-10 A/S Department of Health, Education, and 154

Welfare, Social Security Administration,

New York Payment Center, Flushing,

New York, Assistant Secretary Case 

No. 30-5150 (GP)

12
FLRC Number Type Case Title

7AA-11 A/S Department of Defense, National Guard

Bureau, Texas Air National Guard, 

A/SLMR No. 336

74A-12 ARB Naval Air Rework Facility, Pensacola,

Florida and American Federation of 

Government Employees, Lodge No. 1960 

(Goodman, Arbitrator)

74A-14 A/S Department of the Navy, Naval Air

Rework Facility, Jacksonville, Florida, 

A/SLMR No. 344

74A—17 ARB American Federation of Government

Employees, AFL-CIO, Local 2649 

and Office of Economic Opportunity 

(Sisk, Arbitrator)

74A-18 ARB Defense Contract Administration

Services Region, St. Louis, Missouri, 

and American Federation of Government 

Employees, Local 1711 (Madden, 

Arbitrator)

74A-21 A/S U.S. Army Electronics Command, Ft,

Monmouth, New Jersey, Assistant 

Secretary Case No. 32-3329 (CA)

74A-23 A/s Internal Revenue Service,

Washington, D.C., Assistant 

Secretary Case No. 22-4056 (CA)

74A-26 A/S Federal Aviation Administration,

Western Region, San Francisco, 

California, Assistant Secretary 

Case No. 70-4067

74A-27 A/S Federal Aviation Administration,

Western Region, San Francisco, 

California, Assistant Secretary 

Case No. 70-4068

13
74A-34 A/S Department of Health, Education, and 274

Welfare, Food and Drug Administration,

Newark District, Newark, New Jersey,

A/SLMR No. 361

74A-35 A/S U.S. Marshals Service, District of 250

Columbia, Assistant Secretary Case 

No. 22-5174 (RO)

74A-37 A/S Department of Agriculture, Office of 151

Information Systems, Kansas City,

Missouri, A/SLMR No. 387

74A-39 A/S Internal Revenue Service, Chamblee 277

Service Center, Chamblee, Georgia,

Assistant Secretary Case No. 40-5246 

(CA)

74A-49 ARB Local 1164, American Federation of

Government Employees, AFL-CIO and 

Bureau of District Office Operations,

Boston Region, Social Security 

Administration (Santer, Arbitrator)

74A-55 NEG NFFE Local 997 and Ames Research Center, 259

National Aeronautics and Space Administration,

Moffett Field, California

74A-56 A/S Air Engineering Center, Naval Air

Support Activity, Philadelphia, Pa.,

Assistant Secretary Case No. 20-4311

74A-57 ARB American Federation of Government

Employees, Local 2677, and Office of '

Economic Opportunity (Kleeb, Arbitrator)

74A-62 ARB Mid-America Program Center, Social Security

Administration and Local 1336, American 

Federation of Government Employees 

(Yarowsky, Arbitrator)

FLRC Number Type Case Title Page

14
^5^ APPEALS DECISIONS BY AGENCIES

January 1, 1974 through December 31, 1974

15

APPEALS DECISIONS BY AGENCIES 

Agency FLRC Number Page

Agriculture, Dept, of

— Office of Information Systems,

Kansas City, Missouri 74A-37 151

Air Force, Dept, of

— Air Force Defense Language 

Institute, English Language 

Branch, Lackland Air Force

Base, Texas 73A-64 238

— Army-Air Force Exchange Service,

Northwest Area Exchange 74A-6 79

— Base Fire Department, Andrews

Air Force Base, Maryland 73A-66 12.6

Ellsworth Air Force Base,

South Dakota 73A-60 246

U.S.A.F. 32lst Combat Support 

Group, Grand Forks Air Force Base,

North Dakota 73A-58 97

Wright-Patterson Air Force Base,

Ohio 74A-2 280

Ames Research Center 74A-55 259

Andrews Air Force Base,

Base Fire Department 73A-66 116

Army, Dept, of

— Fort Leonard Wood, Missouri 73A-62 100

17
Agency FLRC Number Page

— Military Ocean Terminal,

Bayonne, New Jersey 73A-52 76

— Army Electronics Command,

Fort Monmouth, New Jersey 74A-21 183

— Army Base Command,

Okinawa

Army-Air Force Exchange Service 

Army Base Command, Okinawa

— Defense Supply Agency and DSA 

Field Activities, Headquarters, 

Cameron Station, Alexandria, 

Virginia

73A-63 103

74A-6 79

73A-63 103

Army Electronics Command,

Fort Monmouth, New Jersey 74A-21

B-C

Charleston Naval Shipyard 73A-1

73A-6

Civil Service Commission 72A-50

D

Defense, Dept, of

Ellsworth Air Force Base 73A-60

48

137

106

73A-51 200

— Defense Contract Administration,

Service Region, St. Louis, Missouri 74A-18

— National Guard Bureau, Texas

Air National Guard 74A-11

246

18
Executive Branch

— Office of Economic Opportunity

— Region V,

Chicago, Illinois 74A-3

— Dallas, Texas 74A-17 ^88

— Washington, D.C. 73A-67 293

74A-57 192

74A-4 122

Agency FLRC Number Page

Federal Aviation Administration

— Flight Service Station,

Des Moines, Iowa 73A-50 H I

— Washington, D.C. 74A-1 1^5

— Western Region,

San Francisco, California 74A-26 174

74A-27 177

Food and Drug Administration,

Newark District,

Newark, New Jersey 74A-34 274

Fort Leonard Wood, Missouri 73A-62 100

Fort Monmouth, New Jersey,

Army Electronics Command 74A-21 183

General Services Administration,

Region 9,

San Francisco, California 73A-65 ^3

19
Grand Forks Air Force Base 73A-58 97

H

Health, Education, and Welfare,

Dept, of

— Public Health Service,

Food and Drug Administration,

Newark District,

Newark, New Jersey 74A-34

— Social Security Administration

— Bureau of District Office Operations, Boston Region, Massachusetts 74A-49 300

— Bureau of Retirement and Survivors 

Insurance, Payment Center,

Birmingham, Alabama 73A-45 85

— Mid-America Program Center,

Kansas City, Missouri 74A-62 271

— New York Payment Center,

Flushing, New York 74A-10 154

I

Agency FLRC Number Page

Immigration and Naturalization Service 73A-25 ^07

Internal Revenue Service

— Chamblee Service Center,

Chamblee, Georgia 74A-39 277

— Chicago District,

Chicago, Illinois 73A-22 65

— Office of the District Director,

Jacksonville District,

Jacksonville, Florida 72A-50 1^6

20
Agency FLRC Number Page

— Western Service Center, 

Ogden, Utah

— Washington, D.C.

73A-33

74A-23

221

229

J

Jacksonville Naval Air Rework Facility 

Jacksonville Naval Rework Facility

74A-14

73A-46

217

195

Justice, Dept, of

— Immigration and Naturalization Service 73A-25

— U.S. Bureau of Prisons,

U.S. Penitentiary,

Lewisburg, Pennsylvania 73A-55

— U.S. Marshals Service,

Washington, D.C. 74A-35

207

94

250

K-L

Lackland Air Force Base,

Air Force Defense Language Institute

Long Beach Naval Shipyard

Louisville Naval Ordnance Station

73A-64

73A-16

73A-21

238

157

55

Military Ocean Terminal, 

Bayonne, New Jersey 73A-52 76

National Aeronautics and Space 

Administration,

Ames Research Center,

Moffett Field, California 74A-55 259

21
Agency FLRC Number Page

National Guard Bureau, Texas 

Air National Guard

National Labor Relations Board, 

Region 17,

Kansas City, Missouri

74A-11

73A-53

130

253

Navy, Dept, of

— Charleston Naval Shipyard* 

Charleston, South Carolina

— Long Beach Naval Shipyard,

Long Beach, California

— Louisville Naval Ordnance Station, 

Louisville, Kentucky

— Naval Regional Finance Center, 

Norfolk, Virginia

— Naval Air Rework Facility, 

Jacksonville, Florida

— Naval Air Rework Facility, 

Pensacola, Florida

— Naval Rework Facility, 

Jacksonville, Florida

Norfolk Naval Regional Finance Center

73A-1

73A-6

73A-16

73A-21

73A-48

74A-14

74A-12

73A-46

73A-48

48

137

157

55

88

217

185

195

88

0-P-Q

Office of Economic Opportunity

— Region V,

Chicago, Illinois

— Dallas, Texas

74A-3

74A-17

119

288

22
— Washington, D.C. 73A-67 293

74A-4 122

74A-57 192

Pensacola Naval Rework Facility 74A-12 185

Agency FLRC Number Page

R-S

Small Business Administration

— Washington, D.C. 73A-4 82

73A-44 262

Social Security Administration

— Bureau of District Operations,

Boston Region, Massachusetts 74A-49 300

— Bureau of Retirement and Survivors 

Insurance, Payment Center,

Birmingham, Alabama 73A-45 85

— Mid-America Program Center,

Kansas City, Missouri 74A-62 271

— New York City Payment Center,

Flushing, New York 74A-10 154

T

Texas Air National Guard 74A-11 130

Treasury, Dept, of

— Internal Revenue Service

— Chamblee Service Center,

Chamblee, Georgia 74A-39 277

— Chicago District,

Chicago, Illinois 73A-22 65

23
Agency FLRC Number Page

— Office pf the District Director, 

Jacksonville District, 

Jacksonville, Florida

— Western Service Center,

Ogden, Utah

— Washington, D.C.

72A-50

73A-33

74A-23

106

221

229

Transportation, Dept, of

— Federal Aviation Administration

— Flight Service Station,

Des Moines, Iowa

— Washington, D.C.

— Western Region,

San Francisco, California

u-v

73A-50

74A-1

74A-26

74A-27

111

145

174

177

Veterans Administration Hospital

— Butler, Pennsylvania 

Canandaigua, New York

— Montgomery, Alabama

— Portland, Oregon

— Tampa, Florida

W-X-Y-Z

74A-5

73A-42

73A-22

73A-54

73A-61

127

164

65

91

45

Wright-Patterson Air Force Base 74A-2 280

24
APPEALS DECISIONS BY LABOR ORGANIZATIONS

January 1, 1974 through December 31, 1974

25

APPEAL DECISIONS BY LABOR ORGANIZATIONS

Labor Organization

A-B-C-D-E

American Federation of Government

FLRC Number Page

iployees. AFL-CIO 73A-43 232

— Local 53 73A-48 88

— Local 148 73A-55 94

— Local 997 73A-22 65

— Local 1164 74A-49 300

— Local 1336 74A-62 271

— Local 1367 73A-64 238

— Local 1650 73A-43 232

— Local 1678 73A-63 103

— Local 1711 74A-18 124

— Local 1760 74A-10 154

— Local 2449 73A-51 200

— Local 2532 73A-4 82

73A-44 262

— Local 2649 74A-17 288

— Local 2677 73A-67 293

74A-4 122

74A-57 192

— Local 2816 74A-3 119

— Local 3000 74A-11 130

— Local 3379 73A-58 97

— Local 3445 74A-34 274

27
Labor Organization FLRC Number Page

Lodge No. 1960

National Border Patrol Council

74A-12

73A-25

185

207

F-G-H

Federal Employees Metal Trades Council, 

Charleston, South Carolina

I-J-K

73A-1

73A-6

48

137

International Association of Machinists 

and Aerospace Workers, AFL-CIO

— Local Lodge No. 830

— Local Lodge No. 2333

73A-21

74A-2

55

280

International Federation of Professional 

and Technical Engineers, AFL-CIO, CLC, 

Local 174 73A-16 157

Licensed Practical Nurses Association 

of Florida

Metal Trades Council, 

Charleston, South Carolina

Marshals Association, U.S.

fi

N

National Association of Air Traffic 

Specialists, Flight Service Station, 

Des Moines, Iowa

73A-61

73A-1

73A-6

74A-35

73A-50

45

48

137

250

111

28
National Association of Government 

Employees

— Local R5-82 73A-46 195

— Local R14-32 73A-62 100

National Association of Government

Inspectors 74A-14 217

National Federation of Federal 

Employees

— Local 179 73A-60 246 

-- Local 476 74A-21 183

— Local 997 74A-55 259 

-- Local 1615 73A-66

-- Local 1633 74A-37 151

National Treasury Employees Union 74A-11 130

74A-23 229

-- Chapter No. 10 73A-32 221

— Chapter No. 67 73A-33 221 

-- Chapter No. 070 74A-39 277

— Jacksonville District Joint Council 72A-50 10^

0

Oregon Nurses Association, Inc. 73A-54

P

Labor Organization FLRC Number Page

Professional Air Traffic Controllers

Organization 74A-1 145

29
Labor Organization

Q-R-S

Service Employees International Union, 

AFL-CIO

— Local 49

— Local 92

— Local 227

— Local 227

FLRC Number

74A-6

74A-6

74A-5

73A-42

Page

79

79

127

164

T-U-V

U.S. Marshals Association 74A-35 250

W-X-Y-Z

30
APPEALS DECISIONS BY INDIVIDUALS

January 1, 1974 through December 31, 1974

31

APPEALS DECISIONS BY INDIVIDUALS

Individuals FLRC Number Page

Benedict, Frederick 74A-26

74A-27

— Bridges, Charles R. 73A-43

174

177

232

Cardiello, Gabriel P. 73A-52 76

— Medina, Arnold 73A-43 232

— Nixon, David A. 73A-53 253

— Waldrop, Mary T. 73A-45 85

33

INTERPRETATIONS AND POLICY STATEMENTS

BY DOCKET NUMBERS AND TITLES

January 1, 1974 through December 31, 1974

35

DOCKET NUMBERS AND TITLES

INTERPRETATIONS AND POLICY STATEMENTS

BY

FLRC Number Title Page

73P-2 Definition of "Agency" 307

37

PART II.

TEXTS OF DECISIONS AND INTERPRETATIONS

January 1, 1974 through December 31, 1974

39

APPEALS DECISIONS

January 1, 1974 through December 31, 1974

41

FLRC NO. 73A-65

General Services Administration, Region 9, San Francisco, California, 

A/SLMR No. 333. The agency appealed to the Council from the Assistant 

Secretary's decision and direction of elections, and requested that 

his direction of elections be held in abeyance pending Council determination of its appeal.

Council action (January 14, 1974). The Council denied review of the 

agency's interlocutory appeal, without prejudice to the renewal of its 

contentions in a petition duly filed with the Council after a final 

decision on the entire case by the Assistant Secretary. The Council 

likewise denied the agency's request that the Assistant Secretary's 

direction of elections be held in abeyance.

43
f 1 FEDERAL LABOR RELATIONS COUNCIL

4- ^ 1900 E STREET, N.W. • WASHINGTON. O.C 20415

January 14, 1974

Mr« G. C, Gardner, Jr.

Assistant Administrator for 

Administration 

General Services Administration 

18th & F Streets, NW.

Washington, D, C, 20405

Re: General Services Administration, 

Region 9» San Francisco, California, A/SLMR No. 333, FLRC 

No. 73A-65

Dear Mr. Gardner:

Reference is made to your petition for review, and your request that the 

Assistant Secretary's direction of elections be held in abeyance pending 

decision on your appeal, in the above-entitled case.

Section 2411.41 of the Council's irules of procedure prohibits interlocutory appeals. That is, the Council will not consider a petition 

for review of an Assistant Secretary's decision until a final decision 

has been rendered on the entire proceeding before him. More particularly, in a case such as here involved, the Council will entertain an 

appeal only after a certification of representative or of the results 

of the elections has been Issued, or after other final disposition has 

been made of the entire representation matter by the Assistant Secretary.

Since a final decision has not been so rendered in the present case, 

the Council has directed that your appeal be denied, without prejudice 

to the renewal of your contentions in a petition duly filed with the 

Council after a final decision on the entire case by the Assistant 

Secretary. Your further request that the Assistant Secretary's direction of elections be held in abeyance pending decision on your appeal 

is therefore likewise denied.

By direction of the Council.

Sincerely,

UNITED STATES

Henry B^^^azier III 

Executlv«/Director

cc: A/SLMR

Dept, of Labor

J. C. Garret C. Ristesund

IFFP AFGE

44
FLRC NO. 73A-61

Veterans Administration Hospital, Tampa. Florida, A/SLMR No. 330. The 

Assistant Secretary dismissed the representation petition filed by Licensed 

Practical Nurses Association of Florida, Inc. (LPNAF), finding Inappropriate the requested separate unit of licensed practical nurses employed 

at the activity. LPNAF appealed to the Council, contending that the 

Assistant Secretary's decision appears arbitrary and capricious because 

he failed properly to consider, evaluate and apply evidence presented 

at the hearing; and that a major policy Issue Is presented because of 

the absence of any dispositive precedent under the circumstances of this 

case. LPNAF also requested a stay of the Assistant Secretary's decision.

Council action (January 21, 1974). The Council held that the Assistant 

Secretary's decision does not appear arbitrary and capricious since It 

does not appear that the Assistant Secretary acted without justification In his findings. The Council also held that the subject decision 

does not present a major policy Issue, since section 10(b) of the Order 

clearly establishes the criteria to be applied In determining whether 

a unit Is appropriate for exclusive representation, and such criteria 

were properly considered and Invoked by the Assistant Secretary in this 

case. Accordingly, the Council denied review of LPNAF's appeal under 

section 2411.12 of the Council's rules of procedure. The Council likewise denied LPNAF's request for a stay.

45
UNITED STATES

Ij FEDERAL LABOR RELATIONS COUNCIL

V y iS m u l U > U l A C U m f l T n i J n <• IM O c tn te e r, n.w . • w as h in o to n . d.& 20«is

Jantiary 21, 197A

Mr. Stuart Rothnan

Kogers & Wells

1666 K Street* NW.

Hashington, D.C. 20006

Re: Veterans Administration Hospital,

Tampa, Florida, A/SLMR No. 330,

FLRC No. 73A-61

Dear Mr. Rothman:

The Council has carefully considered your petition for review of the

Assistant Secretary's decision In the above-entitled case, and the

agency's opposition thereto.

In pertinent part, the Assistant Secretary dismissed the petition of

the Licensed Practical Nurses Association of Florida, Inc. for a

separate unit of Licensed Practical Nurses (LPN's) at the Veterans

Administration Hospital, Tampa, Florida. More particularly, the

Assistant Secretary found as follows (at pp. 7-8):

Under all of the circumstances, I find that the unit of LPN*s

soxight by the LPNA Is not appropriate for the purpose of

exclusive recognition under the Order. Thus, It Is clear that

the duties of this group of the LPN's are Identical to those of

the NA's [Nursing Assistants] (who are Included In the nonprofesslonal employee unit sought by the AFGE) with the exception

of the administering of medication, assignment to the coronary

unit, and the occasional temporary filling in for the staff

nurses for short periods of time. Moreover, LPN's are subject

to the same supervision as NA's and their pay scales overlap.

Additionally, the record reveals that the LPN's share the same

benefits and are governed by the same personnel policies as

other nonprofessional employees of the Activity in the unit

sought by the AFGE. Accordingly, in my view, the LPN's do not

constitute a functionally distinct group with a clear and identifiable community of interest, and do not share commonality of

interests sufficiently distinct from the other nonprofessional

employees in the unit sought by the AFGE to warrant separate

representation. To permit such separate representation would,

in my judgment, lead to excessive fragmentation of units in the

health care service which clearly would not promote effective

dealings and efficiency of agency operations as required by

the Order. Consequently, I find that the unit sought by the

LPNA is not appropriate for the purpose of exclusive recognition, and I shall therefore order that its petition be dismissed.

(Footnote omitted]

46
In your request for revlew» you assert that the Assistant Secretary's

decision appears arbitrary and capricious because he failed to

properly consider, evaluate and apply evidence presented at the

hearing which you contend establishes that LPN's are a craft with

a separate and distinct community of interest, and therefore entitled

to a separate bargaining unit. You further contend that the Assistant

Secretary's decision presents a major policy issue in that there had

been no previous history of collective bargaining at the facility

and no prior decision has been rendered by the Assistant Secretary

as to the appropriateness under these circumstances of the unit

here sought.

In the Council's opinion the Assistant Secretary's actions do not

appear arbitrary and capricious nor does the decision present a

major policy issue. With respect to your contentions relating to

the matters relied upon by the Assistant Secretary in his determination, it does not appear that the Assistant Secretary acted

without justification in his findings. As to the alleged major

policy issue, section 10(b) of the Order clearly establishes the

criteria to be applied in determining whether a unit is appropriate

for exclusive representation, and such criteria were properly considered and invoked by the Assistant Secretary in the instant case.

Since the Assistant Secretary's decision does not appear arbitrary

and capricious and does not present a major policy issue, your

petition fails to meet the requirements for review as provided in

section 2411.12 of the Council's rules of procedure. Accordingly,

the Council has directed that review of your appeal be denied.

Likewise, the Council has directed that your request for a stay

be denied under section 2411.47(c) of the Council's rules of procedure.

By direction of the Coimcil.

Sincerely,

------. a " -

ve^i

Henry B . ^ azier III

Executlve^lrector

cc: A/SLMR

Dept, of Labor

M. Jacobs

VA

E. B. Heyers

V. C. Mudgett

AFGE

R. R. Brown

NFFE

47
FLRC NO. 73A-1

Federal Employees Metal Trades Council of Charleston and Charleston 

Naval Shipyard, Charleston, South Carolina. This negotiability dispute involved two management proposals which the agency head determined 

to be negotiable. The first proposal sets forth procedures to be 

followed where employee grievances involve the interpretation of 

published agency policy, or provisions of law, or regulation of outside authority, which have been incorporated in the agreement. The 

second proposal would establish procedures to be followed in settling 

management grievances over the interpretation or application of the 

agreement.

Council action (January 31, 1974). The Council found, contrary to 

the union's contentions, that the first proposal goes to the nature 

and scope of the negotiated grievance procedures and that, based on 

the reasoning of the Council in its Elmendorf decision, FLRC No. 72A-10, 

such proposal is consistent with section 13 of the Order and is negotiable. As to the second proposal, the Council, relying on the express 

language and purpose of section 13, ruled contrary to the position of 

the union that management grievances may be subject to the negotiated 

grievance procedure under section 13 and that the proposal is therefore 

negotiable. Accordingly, the Council sustained the agency head’s 

determinations of negotiability in this case.

48
inj

6

Svoti'

ress

l o f

ated

refote

s

UNITED STATES

FEDERAL LABOR RELATIONS COUNCIL

WASHINGTON, D.C. 20415

Federal Employees Metal Trades

Council of Charleston

and FLRC No. 73A-1

Charleston Naval Shipyard,

Charleston, South Carolina

DECISION ON NEGOTIABILITY ISSUES

Background

The Federal Employees Metal Trades Council of Charleston represents

an activity-wide unit of wage system employees of the Charleston

Naval Shipyard at Charleston, South Carolina.

During negotiation between the union and the activity, the activity

presented proposals concerning grievances of employees in the bargaining unit arising under the agreement (Article 22, Section 19),

and dealing with management grievances arising under the agreement

(Article 22, Section 20). The proposals are set forth below:

Article 22, Section 19

Should an employee or group of employees in the unit or

the Council initiate a grievance or complaint involving

the Interpretation or application of the Agreement which

also questions the interpretation of published agency

policy, provisions of law or regulations of appropriate

authority outside the agency, and such policy, law or

regulation has been made a part of the Agreement, the

following procedure will apply;

a. Processing of the grievance beyond the

informal stage, set forth in Section 4,

will be delayed until the questioned

policy, law or regulation has been interpreted. In securing this interpretation,

the Council will forward, via the Shipyard

Commander, its inquiry to the cognizant

office of issue in the Department of the

Navy for review. Requests for interpretation of matters external to the Department

of the Navy will be forwarded by the Council,

via the Shipyard Commander to the Office of

Civilian Manpower Management for review and

interpretation. No hearing will be held in

either review process.

49
b. Within fifteen (15) calendar days of the

receipt of the interpretation, the grievant

may process through the formal grievance

procedure the matter in the grievance concerning the interpretation or application of

the agreement, if the interpretation received

indicated a mis-application has taken place.

Article 22, Section 20

Management grievance[s] concerning the interpretation or

application of provisions of this Agreement shall be submitted, in writing, by the Shipyard Commander to the Council

President. Such grievances must be delivered within the

time limit outlined in Section 6, above, and must contain

the minimum information required for grievances submitted

under Step 1, Section 4, except for information concerning

Informal efforts to resolve the issue(s). The Council

President will issue a written decision on the issue(s)

raised in the Management grievance within ten (10) work days

following the consultation meeting. Any issue not resolved

by the Council decision may be referred to arbitration under

[the] provisions of Article XXIII of this Agreement, provided

the referral is made within fifteen (15) calendar days of

the Shipyard Commander's receipt of the Council decision.

The union contended that both proposals violated section 13 of the

Order and were, therefore, nonnegotiable. Upon referral, the Department of Defense determined, contrary to the union position, that both

proposals were consistent with section 13 of the Order and therefore

negotiable. The union appealed to the Council from that determination

and the agency filed a statement of position in support of the determination.!/

VThe agency initially filed a motion to dismiss the union's negotiability appeal, contending that the type of agency determination involved

was outside the scope of Council review under section 11(c)(4) of the

Order and section 2411.22 of the Council's rules. The Council, determining that review of the negotiability dispute would be consistent with

the underlying purpose of the Order and the Council's rules of procedure,

denied the agency's motion.

50
Opinion

The questions for Council resolution concern the negotiability 

under section 13 of the Order^/ of (1) Article 22, Section 19, 

and (2) Article 22, Section 20. The proposals will be considered 

separately below;

1. Article 22, Section 19.

The proposal prescribes the procedures to be followed when employees 

in the bargaining unit initiate a grievance which involves the interpretation of published agency policy or provisions of law or regulation of outside authority which have been incorporated in the agreement. 

The proposed procedures would delay processing of the grievance beyond 

the Informal stage of the negotiated grievance procedure until an

T7 Section 13, provides, in pertinent part:

Sec. 13. Grievance and arbitration procedures.

(a) An agreement between an agency and a labor 

organization shall provide a procedure, applicable 

only to the unit, for the consideration of grievances over the interpretation or application of the 

agreement. A negotiated grievance procedure may 

not cover any other matters, including matters for 

which statutory appeals procedures exist, and shall 

be the exclusive procedure available to the parties 

and the employees in the unit for resolving such 

grievances ....

(b) A negotiated procedure may provide for the arbitration of grievances over the interpretation or 

application of the agreement, but not over any other 

matters. Arbitration may be invoked only by the agency 

or the exclusive representative. Either party may file 

exceptions to an arbitrator's award with the Council, 

under regulations prescribed by the Council.

(c) Grievances intitated by an employee or group of 

employees in the unit on matters other than the interpretation or application of an existing agreement may 

be presented under any procedure available for the 

purpose.

51
interpretation of the policy, law or regulation in question was

obtained by the union from the Department of the Navy or the

Department of Defense. Then, following receipt of the interpretation, the grievance could be processed through the formal stage

of the grievance procedure if the interpretation received indicated

that a misapplication had taken place.

The union's primary contention is that the proposal is violative of

section 13 of the Order because it would, in effect, permit the -resolution of grievances over the interpretation or application of the

agreement through a procedure other than the negotiated grievance

procedure. We find that argument to be without merit.

Resolution of the issue involved in the dispute concerning this proposal is governed by the Council’s reasoning in the Elmendorf

decision.^/ In Elmendorf we stated in pertinent part;

[B]oth the amended Order and the Report and Recommendations

which led to the amendments intended that the nature and

scope of the negotiated grievance procedures were to be left

to determination by the parties at the bargaining table,

within, of course, the Order's prescription that the scope

of the procedures negotiated were to be limited to grievances

over the interpretation or application of the agreement ....

. . . [I]t was intended by the Council and by the section 13

amendments that the nature and scope of the negotiated grievance procedures were to be negotiated by the parties subject

only to the explicit limitations prescribed by the Order

itself.

V American Federation of Government Employees Local 1668 and Elmendorf

Air Force Base (Wildwood Air Force Station), Alaska, FLRC No. 72A-10

(May 15, 1973), Report of Case Decisions No. 38, dated May 21, 1973.

This case involved the question of the validity under the Order of two

provisions of an agency directive which respectively (1) required that

any agreement negotiated with a labor organization contain a statement

that questions as to the interpretation of published agency policies

or regulations, provisions of law, or regulations of appropriate

authorities outside the agency were not to be subject to the grievance

procedure negotiated by the parties, regardless of whether such policies,

laws or regulations were incorporated or referenced in the agreement;

and (2) established an alternative agency procedure for the resolution

of such questions. The Council held that the disputed provisions of the

agency directive were violative of section 13 of the Order, as amended,

and in discord with the concluding requirement in E.O. 11616 that "Each

agency shall issue appropriate policies and regulations consistent with

this Order for its implementation."

52
However, limitations on the scope of negotiated grievance procedures are not inherently inconsistent with the Order and the 

Report. Such limitations may be proper if established through 

the process of negotiations . . . .^/

Viewing this case in the light of our reasoning in Elmendorf, we must 

reject the union's contention that the proposed Article 22, Section 19 

violates section 13 of the Order. What the agency is proposing here 

goes to the nature and scope of the grievance procedure that would be 

negotiated by the parties, i.e., a means of handling disputes involving 

the Interpretation of published agency policy or provisions of-law or 

regulation of outside authority which might be incorporated in the 

collective bargaining agreement. Nothing in the Order, expressly or by 

Implication, limits the negotiability of such procedures.

Accordingly, the management proposal numbered Article 22, Section 19 

under consideration in this case must be held to be consistent with 

section 13 of the Order and therefore negotiable.

2. Article 22, Section 20.

The principal issue with regard to this proposal is whether management 

grievances concerning the interpretation or application of the agreement may be subject to the negotiated grievance procedure under 

section 13 of the Order.

The union contends that this proposal is violative of section 13(a) of 

the Order, arguing in effect that the negotiated grievance procedure is 

only available to employees in the unit (or their representative) and 

that management is excluded from brifiginga grievance concerning the 

Interpretation or application of the agreement under the negotiated 

procedure. We cannot agree.

Section 13(a) provides, in pertinent part, that the "negotiated grievance 

procedure . . . shall be the exclusive procedure available to the parties 

and the employees in the unit for resolving . . . grievances [over the 

Interpretation or application of the agreement]," [Emphasis supplied.! 

Section 13(b) further provides, in relevant part, that:

. . . Arbitration may be invoked only by the agency or the 

exclusive representative. Either party may file exceptions 

to an arbitrator's award with the Council, under regulations 

prescribed by the Council. (Emphasis supplied•]

These provisions are clear and unambiguous. The negotiated grievance 

procedure under section 13(a) is the exclusive procedure available "to 

the parties and the employees in the unit" for settling grievances

4/ Id., at pp. 5-6.

53
over the interpretation or application of the negotiated agreement.

The "parties" are of course the parties to the agreement itself, viz. 

the exclusive representative and agency management, not just the 

exclusive representative. This language of section 13(a) is consistent with the provisions that follow. Under section 13(b), either 

the agency or the exclusive representative may invoke arbitration and 

either party (i.e., the agency or the union) may file exceptions to 

the arbitration award.

Thus, by its express language, section 13 clearly reflects an intent 

that both sides to the negotiated agreement, namely agency management 

and the exclusive representative, have equal access to the negotiated 

grievance procedure under the terms and procedures incorporated 

therein by the parties themselves.

Apart from the literal provisions of section 13, the purposes of that 

section compel the conclusion that management grievances may be subject to the negotiated grievance procedure. For section 13 is designed 

to provide a procedure for resolving disputes between the parties concerning the interpretation or application of the agreement. Such 

disputes interfere with effective labor-management relations, and it is 

the resolution of such disputes, not the identity of the disputant, which 

is of overriding importance under section 13 of the Order.

Accordingly, we find that the management proposal numbered Article 22, 

Section 20 is not violative of the Order as contended by the union. On 

the contrary, we find that the proposal is consistent with the Order 

and therefore negotiable.

Conclusion

Based on the reasons set forth above, we find that the determination by 

the agency that the management proposals here involved were negotiable 

under the Order was proper and must be sustained.

The foregoing decision shall not be construed as expressing or implying 

any opinion of the Council as to the merits of the agency’s proposals in 

this case. We decide herein only the issues as to the mutual obligation 

of the parties under section 11(a) of Executive Order 11491 to negotiate 

on the proposals.

By the Council.

Issued: 3 ,

m

54
FLRC NO. 73A-21

Local Lodge 830, International Association of Machinists and Aerospace 

Workers, and Louisville Naval Ordnance Station, Department of the Navy, 

The dispute in this case concerned the negotiability under the Order 

of union proposals which would: (1) Define and clarify certain general 

terms used in job descriptions; (2) provide that, in cases submitted 

to an arbitrator under the negotiated grievance procedure, the specific 

terms of the agreement must stand alone; and (3) provide that all aspects 

of the agreement shall be subject to grievance and arbitration under 

the negotiated grievance procedure.

Council action (January 31, 1974). As to (1), the Council, distinguishing the Griffiss Air Force Base case, FLRC No. 71A-30 (which decision 

the Council expressly reaffirmed), ruled, contrary to the position 

of the agency, that the union’s proposal would not constrict the 

agency's right to assign duties and to effect changes in job descriptions to reflect such assignments, and consequently was not outside 

the agency's obligation to bargain under the Order. With respect to 

(2), the Council upheld the agency determination of nonnegotiability 

since the union’s proposal would prohibit the arbitrator from seeking access to sources necessary to implement section 1 2 (a) of the 

Order and was thereby violative of the Order. And as to (3), the 

Council, based, among other things, on its decision in the Elmendorf 

case, FLRC No. 72A-10, and relevant provisions in sections 12(a) and 

(13) of the Order, overruled the agency’s contention that the proposal was nonnegotiable. Accordingly, the agency head’s determinations 

were sustained in part and set aside in part.

55
UNITED STATES 

FEDERAL LABOR RELATIONS COUNCIL 

WASHINGTON, D.C. 20415

Local Lodge 830, International 

Association of Machinists and 

Aerospace Workers

and FLRC No . 73A-21

Louisville Naval Ordnance Station,

Department of the Navy

DECISION ON NEGOTIABILITY ISSUES 

Background of Case

The union (Local Lodge 830, lAM-AW) is the exclusive bargaining representative 

of all nonsupervisory employees at the activity (Louisville Naval Ordnance 

Station).

During negotiations between the union and the activity, the union submitted 

proposals pertaining to position descriptions (Article 18, Section 6); the 

presentation of cases before an arbitrator (Article 21, Section 4); and 

the scope of the negotiated grievance procedure (Article 21, Sections 2(b) 

and 5(a)(2)). More specifically, these respective proposals are as follows:

Article 18, Section 6

a. When the term, 'such other duties as may be assigned' or 

Its equivalent is used in a position description, the term

Is mutually understood to mean 'tasks that are normally related 

to the position and are of an Incidental nature.'

b. It Is understood that the language of (a) above does not 

preclude the Employer from assigning unrelated work to 

employees when;

(1 ) a general plant cleanup is required;

(2) work as defined in an employee's position 

description is not available.

Article 21, Section 4

[Neither party shall make use of, refer to, argue from, or 

present before an arbitrator any interpretation of any 

regulation, policy rule or law to establish the meaning of

56
this Agreement.] The specific terms of this Agreement must 

stand alone.' [The parties to this Agreement reserve the 

exclusive right to make changes thereto..

Article 2 1. Section 2(b)

The negotiated procedure covers all aspects of this Agreement, 

and all terms and conditions set forth explicitly in this 

Agreement shall unreservedly be subject to being grieved 

and arbitrated under this procedure and the provisions of 

Article 22 (Arbitration).

Article 2 K Section 5(a)(2)

If the grievance concerns any aspects of this agreement; the 

aggrieved must use this procedure ....

The activity contended that the proposals were nonnegotiable. Upon referral 

the Department of Defense determined that the proposals (with the exception 

of the bracketed sentences in Article 21, Section 4) were nonnegotiable.

The union then appealed this determination to the Council under section 

11(c)(4) of the Order, and the agency filed a statement of position in 

support of its determination.

Opinion

The union proposals in dispute will be separately considered below.

1, Position descriptions (Article 18, Section 6).

As previously set forth, the union proposed in Article 18, Section 6, that 

whenever the phrase "such other duties as may be assigned" or the like 

appears in a position description, it shall be defined to mean "tasks that 

are normally related to the position and are of an incidential nature"; 

and that such language in the position description does not prevent the 

assignment of unrelated duties to employees under circumstances referred 

to in the proposal.

The agency asserts that this proposal would restrict management in the 

assignment of duties to employees; and that, based principally on the 

Council's decision in the Griffiss case,— ^ the proposal is nonnegotiable.

\J International Association of Fire Fighters, Local F-111 and Griffiss 

Air Force Base, Rome, N.Y., FLRC No. 71A-30 (April 27, 1973), Report No. 

36.

57
In the Grifflss case, relied upon by the agency, the union submitted proposals 

expressly prohibiting the assignment of certain civil disturbance functions 

and other allegedly unrelated duties, such as barrier detail work, to firefighters in the bargaining unit.2/ That is, the union's proposal would 

have proscribed the assignment by management of particular duties to an 

individual position. The Council upheld the agency's determination of 

nonnegotiability, on the grounds that the specific duties assigned to particular jobs, including duties allegedly unrelated to the principal functions 

of the employees concerned, are excepted from an agency’s obligation to 

bargain under section 11(b) of the Order. We reaffirm that decision.

However, we cannot agree with the agency that the Griffiss decision is dispositive of the instant case. Such contention by the agency is founded, 

in our opinion, on a misinterpretation of the language and intent of the 

subject proposal of the union.

Here, unlike in Griffiss, the union's proposal is expressly directed, not 

at proscribing the assignment of particular duties to an individual 

position, but at the definition and clarification of the terms of 

the agency's position descriptions. Those descriptions do not determine 

the assignment of duties, but reflect such assignments for pay and classification purposes.2^ As the union explained in its appeal, it was 

principally to this reflection that its proposal was addressed:

The purpose of a position description is to make a listing 

of predominant skills and duties specific and peculiar to 

the job to which an employee is assigned. From this cluster 

of skills and duties, the classifier determines the pay level 

for the position. If the list of skills and duties can be

2/ Specifically, the union proposals in Griffiss provided that:

(1) Proposed Article, Civil Disturbances, Section 1: 'Unit 

Employees will not be used to quell Civil Disturbances in 

order to comply with Mutual Aid Agreement. Unit Employees 

will be used to perform Rescue, Fire Control and Extinguishment of Fires Only.'

Section 2: 'Unit Employees and Fire Equipment will remain 

in quarters on Alert Status when demonstrations are anticipated in area of Griffiss Air Force Base, as Professional 

Firefighters.'

(2) Proposed Article, Unrelated Duties, Section 1: 'Employer 

agrees not to require Unit Personnel to participate in unrelated duties, e.g.. Barrier Detail and after hour I6cE calls 

unless required due to emergency conditions on Base.'

3/ See e.g., FPM Chapter 312, Subchapter 3, Section 3-2.

58
modified by using the term ’other dutie«^ as assigned* to 

mean every skill and duty In the entire spectrum, no matter 

how grossly Inappropriate or repugnant these may be to the 

duties In the position description, then again, there is no 

need for a classification system at all. To interpret the 

phrase ’other duties as assigned' to mean any other duty 

without regard to its compatibility to the classification 

and grade and duties and responsibilities encumbered in the 

position* then the purpose of making or constructing the 

listing of position descriptions is patently defeated.

Stated otherwise, the union’s proposal in the present case is aimed at 

the precision and completeness of the description of the employee's 

position, not, as in Griffiss, at the content of the job itself.

General phrases such as "such other duties as may be assigned" are 

often Included in position descriptions, and the union's proposal would 

merely define such general phrase to mean work normally related to the 

position and of an incidental nature — with the added qualification that 

this general phrase, even as so defined, may include unrelated work when 

a general plant cleanup is required or when work specified in the 

description is unavailable.

The union’s proposal thus would not restrict the agency's right to 

prescribe specifically in the job description any duties which it wishes 

to assign to an employee or position and to change the job description 

without limitation to reflect such changes in assignments. Moreover, the 

agreement would of course be subject to section 12(b) of the Order, the 

provisions of which must be included in every agreement.^/ Under 

section 1 2 (b), for example, the agency retains the complete right, in 

accordance with applicable laws and regulations, to assign duties to 

employees or positions in such manner as to maintain the efficiency of 

Government operations, and to carry out the mission of the agency in 

emergency situations.

M Section 12 of the Order prnvides in pertinent part:

Sec. 12. Basic provisions of agreements. Each 

agreement between an agency and a labor organization is subject 

to the following requirements-

(a) in the administration of all matters covered by the 

agreement, officials and employees are governed by existing or 

future laws and the regulations of appropriate authorities, 

including policies set forth in the Federal Personnel Manual; by 

published agency policies and regulations in existence at the time 

the agreement was approved; and by subsequently published agency 

policies and regulations required by law or by the regulations of 

appropriate authorities, or authorized by the terms of a 

controlling agreement at a higher agency level;

(Continued)
In suimnairyt nothing in the Order renders the mere definition and 

clarification of general terms in job descriptions, as proposed by 

the union, outside the agency’s obligation to negotiate under section 

11(b) of the Order. Therefore, the agency's determination of nonnegotiability must be rejected .A/

(Continued)

(b) management officials of the agency retain the 

right, in accordance with applicable laws and regulations-

(1 ) to direct employees of the agency;

(2) to hire, promote, transfer, assign, and retain 

employees in positions within the agency, and to suspend, 

demote, discharge, or take other disciplinary action against 

employees;

(3) to relieve employees from duties because of lack of 

work or for other legitimate reasons;

(4) to maintain the efficiency of the Government operations 

entrusted to them;

(5) to determine the methods, means, and personnel by which 

such operations are to be conducted; and

(6) to take whatever actions may be necessary to carry out 

the mission of the agency in situations of emergency; . . •

The requirements of this section shall be expressly stated in 

the initial or basic agreement and apply to all supplemental. 

Implementing, subsidiary, or informal agreements between the 

agency and the organization.

_5/ Cf. AFGE Local 1923 and Social Security Administration Headquarters 

Bureaus and Offices, Baltimore, Maryland, FLRC No. 71A-22 (June 1, 1973), 

Report No. 39; and Veterans Administration Independent Service Employees 

Union and Veterans Administration Research Hospital, Chicago, Illinois, 

FLRC No. 71A-31 (November 27, 1972), Report No. 31.

60
The contested portion of the union's proposed Article 21, Section 4, 

provides in context that, in cases submitted to an arbitrator under the 

negotiated grievance procedure, the specific terms of the agreement must 

stand alone.

The agency determined that the proposal is nonnegotiable because under 

section 12(a) of the Order the arbitrator must resort to materials outside the agreement to determine the meaning and intent of the laws and 

regulations referred to therein, and this proposal, by denying the 

®^^itrator such access, violates the Order. However, the union argues 

that, under section 13(a) of the Order, the negotiated arbitration and 

grievance procedure is the exclusive procedure for resolving grievances 

over the Interpretation or application of the agreement; and therefore 

that "only the agreement itself may be used to establish its own meaning.' 

We find no merit in the union's position.

Section 12(a) of the Order, as previously set forth, provides that;

Sec. 12. Basic provisions of agreements. Each agreement 

between an agency and a labor organization is subject to the 

following requirements-

(a) in the administration of all matters covered by the 

agreement, officials and employees are governed by existing 

or future laws and the regulations of appropriate authorities. 

Including policies set forth in the Federal Personnel Manual; 

by published agency policies and regulations In existence at 

the time the agreement was approved; and by subsequently published agency policies and regulations required by law or by 

the regulations of appropriate authorities, or authorized by 

the terms of a controlling agreement at a higher agency level;

2* Presentation of cases before an arbitrator (Article 21. Section 4 ) .

The requirements of this section shall be expressly stated in 

the Initial or basic agreement and apply to all supplemental. 

Implementing, subsidiary, or informal agreements between the 

agency and the organization.

The provisions in section 12(a) must, as stated therein, be part of 

every agreement and an arbitrator, under that section, must consider the 

referenced laws and regulations in resolving the grievances arising 

under the agreement. Such laws and regulations obviously cannot be 

interpreted in a vacuum. They draw their intent and meaning from relevant 

history, reports, decisions, interpretations, policy rules and the like.

61
which must be derived from sources outside the four corners of the 

agreement itself. Since the union’s proposal would prohibit the 

arbitrator from seeking access to sources necessary to Implement 

section 12(a), the proposal in the context of Article 21. Section 4, 

is clearly violative of the Order. The agency's determination of 

nonnegotiability of this proposal must therefore be upheld.

3. Scope of negotiated grievance procedure (Article 21« Sections 2(b) 

and 5(a)(2)).

The last two union proposals in dispute provide that all aspects of 

the agreement shall be subject to grievance and arbitration under the 

negotiated grievance procedure.

The agency asserts, contrary to the union, that the proposals are 

nonnegotiable because: (1) they would extend grievances and arbitration 

to other than "bilaterally determined" matters which are alone Intended 

to be subject to the negotiated grievance procedure under sections 13(a) 

and 13(b) of the Order;^/ and (2) if the agreement adverts to matters 

for which statutory appeals procedures exist, the proposals violate 

the specific exclusions of such matters from the negotiated grievance 

procedure under section 13(a). We disagree with the agency's position.

_6/ Section 13 of the Order provides in pertinent part;

Sec. 13. Grievance and arbitration procedures. (a) An 

agreement between an agency and a labor organization shall provide 

a procedure, applicable only to the unit, for the consideration 

of grievances over the interpretation or application of the 

agreement. A negotiated grievance procedure may not cover any 

other matters, including matters for which statutory appeals 

procedures exist, and shall be the exclusive procedure 

available to the parties and the employees in the unit for 

resolving such grievances. However, any employee or group 

of employees in the unit may present such grievances to the 

agency and have them adjusted, without the intervention of the 

exclusive representative, as long as the adjustment is not 

inconsistent with the terms of the agreement and the exclusive 

representative has been given opportunity to be present at the 

adjustment.

(b) A negotiated procedure may provide for the arbitration 

of grievances over the interpretation or application of the 

agreement, but not over any other matters. Arbitration may be

(Continued)

62
With respect to the agency's first argument (i.e. that only "bilaterally 

determined" matters are subject to the negotiated grievance procedure), 

the Council rejected the agency's similar contention in the Elmendorf 

and held that the nature and scope of the negotiated grievance 

procedure under section 13 are to be negotiated by the parties themselves, 

subject only to the explicit limitations prescribed by the Order itself.

With respect to the agency's second contention (i.e. that the union 

proposals would subject to the negotiated grievance procedure matters 

for which a statutory appeals procedure exists and thereby violate the 

explicit limitation in section 13(a) of the Order), the agency has not 

established that the agreement would in fact cover any matter for which 

a statutory appeals procedure exists. Furthermore, under section 12(a) 

of the Order, the provisions of which must be included in every agreement, the administration of any agreement entered into by the parties 

would be subject to existing or future laws and regulations of appropriate 

authorities, which would preclude coverage under the negotiated grievance 

procedure of matters covered by present or future statutory appeals 

procedures. Additionally, as to any questions which might arise concerning 

whether a grievance is properly subject to the negotiated grievance 

procedure or is excepted by reason of a statutory appeals procedure, the 

Council indicated in the Elmendorf decision (at p. 6):

The Assistant Secretary of Labor is authorized to decide . . . 

questions of grievability subject to appellate review by the 

Council. In addition, the Council may review arbitration 

awards and set aside awards which it finds to be in violation 

of applicable law, appropriate regulation, or the Order.

[Footnotes omitted.]

(Continued)

invoked only by the agency or the exclusive representative. 

Either party may file exceptions to an arbitrator's award with 

the Council, under regulations prescribed by the Council.

(d) Questions that cannot be resolved by the parties as 

to whether or not a grievance is on a matter subject to the 

grievance procedure in an existing agreement, or is subject to 

arbitration under that agreement, may be referred to the 

Assistant Secretary for decision.

7/ American Federation of Government Employees, Local 1668 and Elmendorf 

Air Force Base (Wildwood Air Force Station), Alaska. FLRC No. 72A-10

(May 21, 1973), Report No. 38.

63
Por the foregoing reasons, we overrule the agency head determination 

that Sections 2(b) and 5(a)(2) of Article 21 are nonnegotlable.

Conclusion 

Based on the foregoing, we find that:

1. The agency head's determination as to the nonnegotiability of 

Article 21, Section 4 was valid. Accordingly, pursuant to section

2411.27 of the Council's rules of procedure, this determination of 

the agency head is sustained.

2. Article 18, Section 6 and Article 21, Sections 2(b) and 5(a)(2), 

are negotiable under the Order. Accordingly, pursuant to section

2411.27 of the Council's rules of procedure, the agency head's 

contrary determinations must be set aside. This decision, however, 

shall not be construed as expressing or implying any opinion of the 

Council as to the merits of the union's proposals. We decide only 

that, as submitted by the union and based on the record before us, 

the proposals are properly subject to negotiation by the parties 

concerned under section 11(a) of the Order.

By the Council.^

Henry &^^razler 

Executi>4 Director

64
NO. 73A-22

American Federation of Government Employees Local 997 and Veterans 

Administration Hospital, Montgomery. Alabama. The negotiability 

dispute Involved the union’s proposals concerning (1) the assignment 

of Officer of the Day duties to unit physicians; and (2) membership 

of a union-recommended unit physician on agency Professional Standards 

Boards when such boards consider whether to recommend the promotion 

of unit physicians.

Council action (January 31, 197A). With respect to (1), the Council 

held that the proposal would limit management's authority to establish staffing patterns for its organization.and the accomplishment 

of its work and that such staffing patterns are excepted from the 

agency's obligation to bargain by section 11(b) of the Order. Hence, 

the agency determination of nonnegotlablllty was sustained. As to

(2), the Council held that the union's proposal is negotiable under 

section 11(a) of the Order and, contrary to the agency determination, 

ruled that negotiation is not precluded by section 12(b)(2) of the Order, 

or by agency regulations.

65
UNITED STATES 

FEDERAL LABOR RELATIONS COUNCIL 

WASHINGTON, D.C. 20415

American Federation of Government 

Employees Local 997

and FLRC No. 73A-22

Veterans Administration Hospital* 

Montgomery, Alabama

DECISION ON NEGOTIABILITY ISSUES

Background of Case

The union represents a unit of physicians at the Veterans 

Administration (VA) Hospital, Montgomery, Alabama. During 

negotiations between the parties, the union advanced proposals 

dealing with: (1) the assignment of Officer of the Day (O.D.) 

duties to unit physicians; and, (2) membership of a union-recommended unit physician on agency Professional Standards Boards 

when such boards consider whether to recommend the promotion of 

unit physicians.

The activity asserted that the proposals are nonnegotiable.

Upon referral, the agency head upheld the activity's position on 

the grounds, principally, as to the O.D. duty proposal, that it 

conflicts with section 11(b) of the Order; and, as to the 

Professional Standards Boards proposal, that it violates section 

12(b)(2) of the Order and agency regulations.

The union appealed to the Council seeking review of these agency 

head determinations. The agency filed a statement of position in 

support of its determinations.

Opinion

The negotiability questions raised with respect to each proposal 

will be considered separately, below.

1. The O.D. Duty proposal. VA hospitals operate continuously,

24 hours a day, 7 days per week. Physicians serve as O.D. to 

provide medical supervision at night, on weekends, and on holidays. 

If physician staffing in the unit should fall and remain below the 

authorized level for 30 days, the union's proposal would require 

the hospital director to satisfy certain conditions before he could

66
•sslgn unit physicians to perform O.D. duties more often than they 

would, on a rotational basis, if the unit were fully staffed. The 

proposal provides:

Officer of the Day duties will be rotated among 

all qualified bargaining unit physicians. When 

the physician staffing falls below authorized 

staffing for 30 days or more, the bargaining 

unit physicians will not be required to perform 

Officer of the Day duties more often than when 

the current authorized staffing is up to full 

complement until all of the procedures available to the director have failed to locate 

additional qualified physicians to perform 

Officer of the Day duties.

The agency argues that utilization of "all of the procedures 

available to the director," as mandated by the proposal, would 

require the hospital director to take actions with respect to the 

numbers, types and/or grades of employees assigned to O.D. tours of 

duty, and that such matters are excepted from the bargaining obligation by section 11(b) of the Order.!./

The union disagrees, contending that, in effect, the proposal 

merely provides a procedure for management to observe in reaching 

the decision to assign unit physicians to O.D. duties more often 

than when the unit is fully staffed with physicians, that is, a 

question of personnel policies, practices and matters affecting 

working conditions which management is obligated to bargain under 

section 11(a) of the Order.

Section 11(b) of the Order provides in relevant part:

. . . the obligation to meet and confer 

[established by section 1 1 (a)] does not 

include matters with respect to the mission 

of an agency; its budget; its organization;

^/ The agency additionally contended, for the first time in its 

statement of position, that the proposal conflicts with agency 

regulations. However, the agency head did not interpret or rely 

upon agency regulations in determining this proposal to be nonnegotiable and in view of our decision herein we do not find it 

necessary to pass on this contention.

67
the number of employees; and the numbers^ 

types, and grades of positions or employees 

assigned to an organizational unit, work 

projact or tour of duty .... [Emphasis added.]

The intended meaning of the underscored language is explained 

In section E»l. of the Report and Recommendations which led to 

the issuance of E.O. 11491, as follows:^'

The words 'assignment of its personnel'^/ 

have been Interpreted by some as excluding 

from the scope of negotiations the policies 

or procedures management will apply in taking 

such actions as the assignment of employees to 

particular shifts or the assignment of overtime.

This clearly is not the intent of the language.

This language should be considered as applying 

to an agency's right to establish staffing patterns 

for its organization and the accomplishment of its 

work — the number of employees in the agency and 

the number, type, and grades of positions or employees assigned in the various segments of its 

organization and to work projects and tours of duty.

To remove any possible future misinterpretation of 

the intent of the phrase 'assignment of its personnel,' 

we recommend that there be substituted in a new order 

the phrase 'the number of employees, and the numbers, 

types, and grades of positions, or employees assigned 

to an organizational unit, work project or tour of 

duty' .... [Footnote and emphasis supplied.]

It is apparent from the foregoing that, under both E.O. 10988 

and E.O. 11491, the staffing patterns for the agency's organization 

and the accomplishment of its work were excepted from the obligation 

to bargain.

Turning to the facts in the present case, the proposal would 

restrict management's authority to determine how frequently unit

2J Labor-Management Relations in the Federal Service (1971). 

at pp. 42-43.

2/ Section 6(b) of E.O. 10988, which preceded E.O. 11491, provided 

that the bargaining obligation ’’shall not be construed to extend 

to such areas of discretion as the . . . [agency's] organization 

and the assignment of its personnel." [Emphasis added.]

68
employees will perform O.D, duties. That is, if, for whatever 

reason, unit staffing should fall below the authorized level as 

set forth in the proposal, management would be required to 

search all available avenues to locate non-unit physicians to 

assign to tours of O.D, duty before unit physicians could be 

assigned to additional tours as Officer of the Day, In this 

regard, the agency indicates that, to carry out the proposal's 

mandate, the hospital director would have to: assign supervisory and managerial physicians to tours of 0,D, duty; hire 

additional numbers of full or part-time physicians for assignment to such tours of duty; and/or secure non-VA physicians to 

staff such tours of duty under a contractual arrangement. 

Clearly, these "procedures available to the director" are 

matters with respect to the numbers and/or types of positions or 

employees assigned to tours of 0,D, duty. Hence, by requiring 

their use, the proposal would impose limiting conditions on 

management's authority to establish staffing patterns for its 

organization and the accomplishment of its work. And, since, 

as already indicated, such staffing patterns are excepted 

from the agency's obligation to bargain by section 1 1 (b) of the 

Order, we must find that, under the circumstances of this case, 

the proposal is nonnegotiable,

2, The Professional Standards Boards proposal. The union's 

pr0()08al, as submitted to the agency head for a determination 

as to its negotiability, provides as follows:it^

The employer agrees to appoint a physician of 

the Unit to Professional Standards Board, when 

the Board is considering physicians of the Unit 

for recommendation for promotion.

4/ The agency contends that the appeal with respect to this 

proposal is fatally defective because the union's petition fails 

to set forth the initial and "integral" paragraph of the proposal 

as it was submitted to the agency head, in apparent violation of 

section 2411,24 of the Council's rules of procedure which provides 

in pertinent part that:

A petition for review shall contain the following:

(a) A statement setting forth the matter proposed 

to be negotiated as submitted to the agency head 

for determination.

However, the agency does not show prejudice to have resulted 

by virtue of the omission and, under the circumstances, we do 

not find such defect to be determinative.

69
It is agreed that the Unit physician will be 

selected from a list reconunended by the Union.

The recommended physician must meet the criteria 

established for Board members. If the Administrator determines that the recommended physician(s) 

does not meet this criteria, he will then appoint 

another physician from the bargaining unit who he 

deems qualified.

Under VA Manual, MP-5 , Part II, Chapter 5, Professional Standards 

Boards periodically consider, for non-competitive promotion,

VA physicians who meet prescribed administrative requirements 

such as a current proficiency rating of "satisfactory" and 

adequate time-in-grade. Such boards, comprising a chairman, 

a secretary and one to three members, review candidates'qualifications for promotion and make recommendations based on their 

findings. With regard to board membership, the VA Department of 

Medicine and Surgery supplement to the above cited provisions of 

the VA Manual provides that no specific grade or specialty is 

required of members of boards considering physicians for promotion, 

except if a professional examination is conducted. In that case, 

each member of the board conducting such examination roust hold a 

grade at least equivalent to the one for which the candidate is 

being considered and at least one board member must be of the same 

specialty as the candidate for promotion.

In the circumstances of the instant case, the hospital director 

is the agency official authorized to assign physicians to serve 

on Professional Standards Boards as well as to approve or disapprove the recommendations of such boards. He is authorized 

to implement board recommendations which he has approved but, if 

he disapproves a board's recommendation, he must forward the case 

with his comments to higher level agency authority for final 

decision.

a. Section 12(b)(2) of the Order. The agency asserts in substance that Professional Standards Boards constitute an integral 

part of the agency's promotion process for physicians; and that 

the proposal for union membership on such boards is nonnegotiable 

because it would interfere with the right "to promote" employees 

reserved to management officials under section 12(b)(2) of the 

Order.

The union argues that its proposal does not interfere with 

management rights but, rather, would establish a procedure, 

negotiable under section 11(a) of the Order, which the agency 

would observe in recommending physicians for membership on boards.

70
Section 12(b) of the Order provides in relevant part as follows:

Sec, 12, Basic provisions of agreements. Each 

agreemenc between an agency and a labor organization 

is subject to the following requirements --

(b) management officials of the agency retain the 

right, in accordance with applicable laws and regulations

(2) to hire, promote, transfer, assign, and retain 

employees in positions within the agency . , . .

In connection with applying this provision of the Order in its 

VA Research Hospital decision, the Council stated

The emphasis is on the reservation of management 

authority to decide and act on these matters, 

and the clear import is that no right accorded 

to unions under the Order may be permitted to 

interfere with that authority. However, there 

is no implication that such reservation of decision making and action authority is intended to 

bar negotiations of procedures, to the extent 

consonant with law and regulations, which management will observe in reaching the decision or 

taking the action involved, provided that such 

procedures do not have the effect of negating 

the authority reserved.

In the VA Research Hospital case, the proposal would have enabled 

the union to obtain higher-level management review of a promotion 

selection before such action could become final. In those 

circumstances, the Council, in finding the proposal negotiable, 

held that it did . not require management to negotiate a

promotion selection or to secure union consent to the decision, , 

but that it would establish procedures to obtain higher-level 

management review before final promotion action was taken.— '

5/ Veterans Administration Independent Service Emplovees Union 

and Veterans Administration Research Hospital. Chicago, 111., 

FLRC No. 71A-31 (November 22, 1972), Report No, 31, at p.3,

See also Lodge 2424. lAM-AW and Kirk Army Hospital and Aberdeen 

Research and Development Center. Aberdeen. Md,. FLRC No. 72A-18 

(September 17, 1973), Report No, 44, at pp. 9-11,

6/ Ibid.

71
The Coiincil recently applied the same principles to the 

circumstances presented by VA Hospital^ Lebanon, PennsvlvaniaZ^ 

which dealt in part with the right "to hire" reserved to management by section 12(b)(2), There, the Council reached a different 

conclusion, holding that the hospital director's actions in 

requesting the employment of additional physicians constituted an 

Integral part of the agency's hiring process and that the union's 

proposal which would have required such actions to be taken by 

the hospital director would interfere with management's reserved 

right.

The circumstances of the present case must carefully be distinguished from those upon which the Council based its VA-Lebanon 

decision. That is, whereas in VA-Lebanon the proposal would 

have preempted the hospital director's discretion as to whether 

or not to request the employment of additional physicians, the 

proposal in the instant case merely would provide for the 

selection, by management, of a representative nominated by the 

union to serve on Professional Standards Boards considering unit 

members for recommendation for promotion. And, as previously 

indicated, before the recommendations of such boards can become 

final} they are subject to the hospital director's approval or, 

if he disapproves, to further consideration and final decision 

at a higher level of the agency.

Under these circumstances, it is clear that the proposal neither 

would limit the discretion of Professional Standards Boards 

considering whether to recommend the promotion of any particular 

candidate, nor would it require management to negotiate a promotion selection or secure union consent to the decision. To 

the contrary, the proposal plainly concerns only procedures 

which management will observe in reaching the decision, which 

would assure the union an essentially non-controlling, participatory role on boards making recommendations with respect to 

the promotion of unit employees.

In conclusion, there is no showing that the proposal would 

directly interfere with the ultimate decision and action 

authority reserved to management. Furthermore, it does not 

appear that the proposal would have the indirect effect of 

interfering with such reserved authority by causing unreasonable 

delay in the decision.

7/ American Federation of Government Employees Local 1966 

and Veterans Administration Hospital, Lebanon. Pennsylvania^ 

FLRC No. 72A-41 (December 14, 1973), Report No. 46, at pp. 5-7.

72
Accordingly, we find that section 12(b)(2) of the Order does not 

bar negotiations on the union's proposal.

b. Agency regulations as a bar to negotiation. The agency head 

determined that the proposal is nonnegotiable because it conflicts 

with published agency regulations (VA Manual, DM&S Supplement, 

MP-5, Part II, paragraph 2.05c) which provide:

Persons selected to serve on Professional Standards 

Boards will be chosen from the most capable, 

experienced and responsible personnel.

In explanation of this determination the agency asserts in its 

statement of position:

A unit physiciem cannot be included on a Professional 

Standards Board unless he meets . . . [the criteria 

established by the regulation.] Therefore, to comply 

with the union proposal might require the Hospital 

Director to violate that published agency policy 

as the appointment of a physician from the unit is 

mandated by the proposal whether or not the Director

finds the union nominee acceptable. [Additional 

emphasis supplied.]

As provided in section 11(c)(3) of the Order, "An agency head's 

determination as to the interpretation of the agency's regulations 

with respect to a proposal is final" and, therefore, the Council 

may not substitute its interpretation of such regulations in 

place of the agency head's. However, the union in effect argues, 

among other things, that the agency misinterpreted the proposal 

and, hence, that the agency regulation, as interpreted by the 

agency head is not a bar to negotiations under section 1 1 (a) of 

the Order.— ^ We find the union's argument persuasive in the 

circumstances of this case.

8/ Section 11(a) provides in pertinent part: "An agency and a 

labor organization that has been accorded exclusive recognition, 

through appropriate representatives, shall meet at reasonable 

times and confer in good faith with respect to personnel policies 

and practices and matters affecting working conditions, so far as 

may be appropriate under applicable laws and regulations, including 

policies set forth in the Federal Personnel Manual, published agency 

policies and regulations, a national or other controlling agreement 

at a higher level in the agency, and this Order. ..."

73
The agency head's determination and the explanation thereof as 

quoted above from the agency's statement of position, characterize the union's proposal as requiring the appointment of 

a unit physician to serve on Professional Standards Boards even 

though the agency might find that no unit physician meets the 

criteria for board membership established by agency regulations.

In our opinion such a characterization of the proposal is erroneous.

The proposal expressly requires, as the union points out, that 

unit physicians recommended by the union must meet the criteria 

established for board members. Further, contrary to the agency’s 

position, the union states, in the record, its intent that the 

proposal if agreed upon:

. . . merely would constitute prior agreement upon 

the Administrator's recommendation of one of the 

three (3) to five (5) Board members frooi a list 

submitted by the Union, provided they meet the 

criteria established for Board members. [Emphasis 

supplied.]

Based on the foregoing, it is our opinion that, while the 

initial paragraph of the proposal taken alone would support the 

agency's characterization of the proposal, the language of the 

proposal as a whole expressly limits the requirement to appoint 

a physician from the unit to such physicians as the agency official 

making such appointment "deems qualified" under agency regulations.

Hence, in our view, neither the language of the proposal as a 

whole nor the expressed Intent of the union as to the meaning 

of such language supports the agency's characterization of the 

proposal as requiring the appointment of a non-qualifying physician 

from the unit. Therefore, the agency has failed to establish that 

its regulation is applicable so as to preclude negotiation of the 

proposal under section 11(a) of the Order.^/

Accordingly, we find that, contrary to the agency head's deternination, the proposal is negotiable.

Cf. Veterans Administration Independent Service Employees 

Union and Veterans Administration Research Hospital. Chicago, 

111.» FLRC No. 71A-31 (November 22, 1972), Report No. 31, at 

pp. 5-6.

74
Conclusions

For the reasons discussed above and pursuant to section 2411.27 

of the Council's Rules and Regulations, we find that:

1. The agency head's determination as to the nonnegotiability 

of the O.D. duty proposal was valid and must be sustained; 

and»

2. The agency head's determination as to the nonnegotiability 

of the Professional Standards Boards proposal was improper 

and must be set aside. This decision shall not be construed 

as expressing or implying any opinion of the Council as to 

the merits of the union's proposal. We decide only that,

as submitted by the union and based on the record before us, 

the proposal is properly subject to negotiation by the parties 

coacerned under section 11(a) of Executive Order 11491.

By the Council.

ExecutWe Director

75
Military Ocean Terminal, Bayonne, New Jersey. Assistant Secretary Case 

No. 32-3101. The Assistant Secretary upheld the Regional Administrator’s 

dismissal of the complaint filed by Gabriel P. Cardiello, which complaint alleged agency violation of section 19(a)(1) and (2) of the 

Order by reason of the abolition of the complainant’s job at the 

activity. The Assistant Secretary found that Cardiello had not established a reasonable basis for his complaint. Cardiello appealed to 

the Council alleging, in essence, that the decision of the Assistant 

Secretary was arbitrary and capricious because the Assistant Secretary 

failed to attach sufficient weight to evidence submitted by the complainant and failed to provide a hearing on the complaint.

Council action (January 31, 1974). The Council held that nothing in 

Cardiello's appeal indicated any persuasive evidence which was not 

properly considered by the Assistant Secretary, or any substantial 

factual issues which required a hearing, or that the Assistant Secretary’s 

decision was in any other manner arbitrary and capricious. Moreover, 

without passing on the precise reasoning adopted by the Assistant 

Secretary, the Council determined that the Assistant Secretary’s decision presented no major policy issue. Accordingly, the Council 

denied review of Cardiello*s appeal pursuant to section 2411.12 of 

the Council’s rules of procedure.

FLRC NO. 73A-52

76
UNITED STATES

FEDERAL LABOR RELATIONS COUNCIL

MOO E STREET. N.W. • WASHINGTON. O.C. 2041S

January 31, 1974

Mr. Gabriel P. Cardlello

123 Gordon Street

Ridgefield Park, New Jersey 07660

Re; Military Ocean Terminal 

Bayonne, New Jersey, 

Assistant Secretary Case 

No. 32-3101,

FLRC No. 73A-52

Dear Mr. Cardlello:

The Council has carefully considered your petition for review of 

the Assistant Secretary’s decision in the above-entitled case.

The Assistant Secretary upheld the Regional Administrator's 

dismissal of your complaint, which complaint alleged that the 

agency violated section 19(a)(1) and (2) of the Order by reason 

of the abolishment of your job at the Military Ocean Terminal.

In this regard, the Assistant Secretary found that you had not 

established a reasonable basis for your complaint that the 

activity interfered with your rights assured by the Order and 

discriminated against you because of your union activities.

In your appeal you allege, in essence, that the decision of 

the Assistant Secretary is arbitrary and capricious because he 

failed to attach sufficient weight to the evidence which you 

submitted and failed to provide a hearing on your complaint.

In the Council's opinion, nothing in your appeal indicates that 

any persuasive evidence was adduced which was not properly considered by the Assistant Secretary; or that any substantial 

factual issues exist which required a hearing by the Assistant 

Secretary; or that the Assistant Secretary's decision was in any 

other manner arbitrary and capricious. Moreover, the Council is 

of the opinion that, without passing upon the p r e c i s e reasoning 

adopted by the Assistant Secretary, no major policy issue is 

presented by the Assistant Secretary's decision.

77
Accordingly, your petition fails to meet the requirements for 

review as provided under section 2411.12 of the Council's rules 

of procedure, and the Council has therefore directed that review 

of your appeal be denied.

By direction of the Council.

Sincerely,

Henry B. 

Executive' )i rector

cc: A/SLMR

Dept, of Labor

J. Cutrone 

Army

78
FLRC NO. 74A-6

Northwest Area Exchange (AAFES), A/SLMR No. 338. Service Employees 

International Union (SEIU) Locals 49 and 92 appealed to the Council 

from the Assistant Secretary's decision and direction of elections. 

However, no final disposition in the case had been rendered as to 

either SEIU Local 49 or Local 92.

Council action (February 7, 1974). The Council denied review of the 

SEIU locals' interlocutory appeal, without prejudice to the renewal 

of their contentions in a petition duly filed with the Council after 

a final decision on the entire case by the Assistant Secretary.

79
UNITED STATES

FEDERAL LABOR RELATIONS COUNCIL

1900 E STREET, N.W. • WASHINGTON. D.C. 20415

February 7, 1974

Mr, Stewart Weinberg 

Levy, Van Bourg St Hackler 

45 Polk Street

San Francisco, California 94102

Re: Northwest Area Exchange (AAFES)^ 

A/SLMR No. 338, FLRC No. 74A-6

Dear Mr. Weinberg:

Reference is made to your petition for review of the Assistant 

Secretary's decision and direction of elections, filed on behalf 

of Service Employees International Union (SEIU) Locals 49 and 92, 

in the above-entitled case.

In his determination, the Assistant Secretary directed an election in an activity-wide unit sought by the American Federation 

of Government Employees, Local 1504, and self-determination elections in separate units sought by SEIU Locals 49 and 92, respectively. No final disposition in the case has been rendered as 

pertains to either SEIU Local 49 or Local 92.

Section 2411.41 of the Council's rules of procedure prohibits 

interlocutory appeals. That is, the Council will not consider 

a petition for review of an Assistant Secretary's decision until 

a final decision has been rendered on the entire proceeding before him, as pertains to the appellant. More particularly, in a 

case such as here involved, the Council will entertain an appeal 

only after certifications of representatives or of the results of 

the elections have issued, or after other final disposition has 

been made of the entire representation matter, as pertains to the 

appellants, by the Assistant Secretary.

80
Since a final decision has not been so rendered in the present 

case, and apart from other considerations, the Council has 

directed that your appeal be denied, without prejudice to the 

renewal of your contentions in a petition duly filed with the 

Council after a final decision on the entire case by the 

Assistant Secretary.

By the Council,

Sincerely,

Henry ^ Frazier III 

Executive Director

cc: A/SLMR

Deptc of Labor

Northwest Area Exchange 

AAFES

J. D, Harvison 

AFGE

81
American Federation of Government Employees, Local 2532 and Small 

Business Administration (Dorsey, Arbitrator). The arbitrator determined that the agency violated the parties’ collective bargaining 

agreement by the agency’s reassignment of certain employees, in 

implementing a "reorganization," without prior notice to or consultation with the union. As a remedy, the arbitrator awarded the reassigned 

employees the right to remain on their reassignments or to withdraw 

and exercise "rights of assignment to a position as such rights 

existed relative to a reduction-in-force" on the date of the reassignments. The agency filed exceptions to the award. The Council denied 

review of the agency's petition as failing to meet the requirements 

for review under the Council’s rules (Case Report No. 36). Subsequently, the union filed a motion that the Council order a showcause hearing as to why the Council should not direct "the agency to 

implement the award with respect to Robert H. Morgan, an employee 

who was reassigned and thereafter retired.

Council action (February 12, 1974). The Council determined that a 

dispute existed between the parties as to the meaning of the award 

with respect to Morgan, and directed the parties (1) to resubmit the 

award to the arbitrator for clarification and interpretation of the 

award with respect to Morgan; and (2) within 15 days after the arbitrator’s action, to file with the Council the award as clarified and 

interpreted and any exceptions thereto which the respective parties 

wish to be considered by the Coimcil.

FLRC NO. 73A-4

82
UNITED STATES

'r

FEDERAL LABOR RELATIONS COUNCIL

TREET. N.W. • WASHINGTOI

February 12, 1974

/ 1900 E STREET. N.W. • WASHINGTON, D.C. 20415

Mr. Clyde M. Webber, National President 

American Federation of Government 

Employees (AFL-CIO)

1325 Massachusetts Avenue, NW. 

Washington, DC 20005

Mr. Carl E. Grant 

Director of Personnel 

Small Business Administration 

1441 L Street, NW.

Washington, DC 20416

Re: American Federation of Government 

Employees, Local 2532 and Small 

Business Administration (Dorsey, 

Arbitrator), FLRC No. 73A-4

Gentlemen:

Reference is made to the union’s motion that the Council order a showcause hearing as to why the Council should not direct implementation of 

the arbitration award in the above-entitled case with respect to 

Robert H. Morgan.

Upon careful consideration of the union’s motion, and the agency’s 

opposition thereto, the Council is of the opinion that there exists 

between the parties a dispute as to the meaning of the arbitrator’s 

award with respect to Morgan. Accordingly, in accordance with section 

2411.37(b) of the Council's rules, the parties are directed; (1) To 

resubmit the award to the arbitrator for clarification and interpretation of the award with respect to Morgan; and (2) within 15 days after 

the arbitrator's action, to file with the Council the award as clarified 

and interpreted and any exceptions thereto which the respective parties 

wish to be considered by the Council. The resubmission to the arbitrator 

would only be for clarification and interpretation of the award previously made, not for relitigating or modifying the award. The purpose 

of the resubmission in this case would be to ask the arbitrator to 

determine only whether or not his award applies to one of the^’^employees 

who were reassigned" and thereafter retired.

83
Pending receipt of the award as clarified and interpreted and any 

exceptions thereto, the Council will hold this case in abeyance.

By direction of the Council.

Sincerely,

Henry ^ Frazier III 

Executive Director

84
FLRC NO. 73A-45

Department of Health, Education and Welfare, Bureau of Retirement 

and Survivors Insurance Payment Center, Birmingham, Alabama, Assistant 

Secretary Case No. 40-A708 (CA). The Assistant Secretary upheld the 

Regional Administrator's dismissal of the complaint filed by employee 

Mary T. Waldrop, which alleged that the agency violated section 

19(a)(1) and (3) of the Order by inviting the exclusive bargaining 

representative to be present at the meeting to discuss her promotional 

appraisal. According to the findings of the Regional Administrator, 

the representative, upon request of Waldrop, left the subject meeting 

and Waldrop was informed of the agency’s position that the representative does not have the right to be present during the Informal stages 

of a grievance unless specifically requested by the grlevant. The 

Assistant Secretary found no evidence that the activity engaged in 

acts which constituted either interference with her rights under the 

Order or improper assistance to the union within the meaning of section 

19(a)(3) of the Order, and no evidence to support her contention that 

the Regional Administrator decided the case without fully and fairly 

considering all relevant evidence.

Waldrop appealed to the Council alleging, in effect, that the activity's 

action was an unlawful Interference with employee rights under the 

Order and that the Assistant Secretary improperly refused to order a 

hearing on her complaint.

Council action (February 28, 1974). The Council held that nothing 

in the appeal indicates that any substantial factual issues exist 

which required a hearing by the Assistant Secretary, or that the 

Assistant Secretary’s decision was in any manner arbitrary and 

capricious. Moreover, without passing upon the precise reasoning 

of the Assistant Secretary, the Council determined that no major 

policy issue is presented by the Assistant Secretary’s decision. 

Accordingly, the Council denied review of Waldrop’s appeal pursuant 

to section 2411.12 of the Council’s rules of procedure (5 CFR 2411.12).

85
UNITED STATES

FEDERAL LABOR RELATIONS COUNCIL

1900 E STREET, N.W. • WASHINGTON, D.C. 20415

February 28, 197A

Ms. Mary T. Waldrop 

Post Office Box 5761 

Birmingham, Alabama 35209

Re: Department of Health, Education and 

Welfare, Bureau of Retirement and 

Survivors Insurance Payment Center, 

Birmingham, Alabama, Assistant Secretary 

Case No. 40-4708 (CA), FLRC No. 73A-45

Dear Ms. Waldrop:

The Council has carefully considered your petition for review of the 

Assistant Secretary's decision in the above-entitled case and the 

agency's opposition thereto.

The Assistant Secretary's decision upheld the Regional Administrator's 

dismissal of your complaint which alleged that the agency had violated 

section 19(a)(1) and (3) of the Order by inviting the exclusive bargaining representative to be present at the meeting to discuss your 

promotional appraisal. The Regional Administrator found in this regard 

that you objected to the representative's presence and requested that 

she leave. Immediately after you made your request, the representative 

left and did not participate or act as an observer at the meeting. 

Additionally, you were informed that the agency takes the position that 

the exclusive representative's observer does not have the right to be 

present during the informal stages of a grievance unless specifically 

requested by the grievant.

The Assistant Secretary found no evidence that the activity engaged in 

any independent acts which constituted either interference with your 

rights under the Order or improper assistance to the union within the 

meaning of section 19(a)(3) of the Order, and no evidence to support 

your contention that the Regional Administrator decided the case without fully and fairly considering all relevant evidence.

Your petition for review alleges, in effect, that the activity's action 

was an unlawful interference with employee rights under the Order and 

that the Assistant Secretary improperly refused to order a hearing on 

your complaint.

86
In the Council's opinion, nothing in your appeal indicates that any 

substantial factual issues exist which required a hearing by the 

Assistant Secretary, or that the Assistant Secretary's decision was 

in any manner arbitrary and capricious. Moreover, the Council is of 

the opinion that, without passing upon the precise reasoning of the 

Assistant Secretary, no major policy issue is presented by the 

Assistant Secretary's decision.

Accordingly, your appeal fails to meet the requirements for review as 

provided under section 2411.12 of the Council's rules of procedure.

The Council has therefore directed that review of your appeal be denied.

By direction of the Council.

Sincerely,

lenrv B>-Frazier IIIHenry B>-Frazier III 

Executive Director

cc: A/SLMR

Dept, of Labor

E. J. Listerman 

SSA

87
FLRC No. 73A-48

American Federation of Government Employees. Local 53, and Navy 

Regional Finance Center, Norfolk, Virginia. The negotiability dispute in this case involved a proposal concerning the general phrase 

"such other duties as may be assigned" in position descriptions.

Council action (February 28, 1974). The Council, based on its decision in the Louisville Naval Ordnance Station case, FLRC No. 73A-21 

(Report No. 48), ruled that the provision is negotiable under section 

11(a) of the Order. Accordingly, the agency head's contrary determination was set aside.

88
UNITED STATES 

FEDERAL LABOR RELATIONS COUNCIL 

WASHINGTON, D.C. 20415

American Federation of Government Employees 

Local 53

and FLRC No. 73A-48

Navy Regional Finance Center 

Norfolk, Virginia

DECISION ON NEGOTIABILITY ISSUE

Background of Case

The union (American Federation of Government Employees, Local 53) 

is the exclusive bargaining representative for a unit of all 

eligible civilian employees at the Navy Regional Finance Center, 

Norfolk, Virginia,

During the agency review of a proposed agreement between the union 

£ind the activity, the Department of the Navy disapproved a portion 

of a provision in the agreement concerning use of the phrase,

"such other duties as may be assigned," in position descriptions. 

The disputed provision as underlined below reads as follows:

Article 17. Section 5

/

It is agreed that each position description shall fully 

spell out the duties of the employee. When the catchall 

phrase, "and such other duties as may be assigned" is 

included in a position description, the Employer agrees 

that it shall not, except in unusual circumstances, be used 

as a basis for assigning duties to an employee which are 

unrelated to his principal duties.

Upon referral, the Department of Defense upheld the position of 

the Navy, determining that the disputed portion of the provision 

was nonnegotiable under the Order. The union appealed this 

determination to the Council under section 11(c)(4) of the Order 

and the agency filed a statement of position.

Opinion

The question before the Council relates to the negotiability of the 

union's proposed provision concerning use of the phrase "such other 

duties as may be assigned" in position descriptions.

89
In our view the provision here in dispute bears no material 

difference from the union's proposal concerning position descriptions 

which was before the Council and held negotiable in Local Lodge 830, 

lAM and Louisville Naval Ordnance Station, Department of the Navy, 

FLRC No. 73A-21 (January 31, 1974).

Therefore, based on the applicable discussion and analysis in the 

Louisville Naval Ordnance decision, the disputed portion of Article 

17, section 5 , under consideration in the instant case, must also 

be held to be negotiable.

Conclusion

For the foregoing reasons, we find that Article 17, section 5 is 

negotiable under the Order. Accordingly, pursuant to section

2411.27 of the Council's rules of procedure, the agency head's 

contrary determination must be set aside. This decision, however, 

shall not be construed as expressing or implying any opinion of the 

Council as to the merits of the provision. We decide only that, 

as submitted, and based on the record before us, the provision is 

properly subject to negotiation by the parties under section 1 1 (a) 

of the Order.

By the Council.

Issued: FE6 2 8

90
FLRC n o . 73A-54

Veterans Administration Hospltal» Portland, Oregon, A/SLMR No. 308.

The Assistant Secretary, applying the principles enunciated In 

United States Naval Construction Battalion Center, A/SLMR No. 8, dismissed the representation petition of the Oregon Nurses Association 

(ONA) seeking to sever a segment of professionals (staff nurses) from 

an actlvlty-wlde iinlt of all professional and nonprofesslonal employees. 

The ONA appealed to the Council, contending that the Assistant 

Secretary's decision Is arbitrary and capricious based on evidence 

In the record; and In effect that a major policy Issue Is presented 

concerning the adoption by the Council of a new policy with regard 

to the representation rights of professionals.

Coimcll action (March 20, 1974). The Council held that the Assistant 

Secretary's decision does not appear arbitrary and capricious since 

It does not appear that the Assistant Secretary acted without reasonable justification In his decision. Also, the Council held that the 

Assistant Secretary's determination Is consistent with precedent decisions by the Council and, since no persuasive reasons were advanced 

by the \mlon for overturning these precedents, no major policy Issue 

Is presented. Accordingly, the Council denied review of the ONA's 

appeal pursuant to section 2411.12 of the Council's rules of procedure (5 CFR 2411.12).

91
UNITED STATES

FEDERAL LABOR RELATIONS COUNCIL

1900 E STREer, N.W. • WASHINGTON, O.C. 20415

March 20, 1974

Mr. William A. Lang 

Executive Director 

Oregon Nurses Association, Inc. 

620 Southwest 5th Avenue 

Portland, Oregon 97204

Re: Veterans Administration Hospital, 

Portland, Oregon, A/SLMR No. 308, 

FLRC No. 73A-54

Dear Mr. Lang:

The Council has carefully considered your petition for review of the 

Assistant Secretary's decision in the above-entitled case, and the 

agency's opposition thereto.

The Assistant Secretary dismissed the representation petition of the 

Oregon Nurses Association seeking to sever a segment of professionals 

(staff nurses) from an activity-wide vinit of all professional and 

nonprofessional employees at the Veterans Administration Hospital, 

Portland, Oregon. In particular, the Assistant Secretary found that 

the evidence did not establish that there had been a failure or refusal of the activity-wide unit representative to render fair and 

effective representation to the employees in the unit sought. Rather, 

in his view, the record disclosed that a harmonious relationship had 

been maintained for several years between the activity and the activitywide representative with respect to all unit employees, including those 

in the petitioned-for unit. Further, applying the principles enimciated 

in United States Naval Construction Battalion Center, A/SLMR No. 8, in 

which the Assistant Secretary concluded that ". . .where the evidence 

shows that an established, effective and fair collective bargaining 

relationship is in existence, a separate unit carved out of the existing unit will not be found appropriate except in vinusual circumstances," 

the Assistant Secretary found no such "unustial circumstances" in the 

present case.

In your petition for review you contend that the Assistant Secretary's 

decision is arbitrary and capricious, principally because he failed to 

take cognizance of evidence in the record which allegedly demonstrated 

that a fair and effective collective bargaining relationship on behalf 

of the staff nurses did not exist, and because he failed to find that 

"unusual circumstances" existed which warranted the establishment of a 

separate unit of staff nurses. Additionally, in effect, you contend

92
that the Assistant Secretary's decision presents a major policy issue 

concerning the adoption by the Council of a new policy with regard to 

the representation rights of professionals under the Order.

In our view your petition for review of the Assistant Secretary’s decision does not meet the requirements of section 2A11.12 of the Council's 

rules; his findings and decision do not appear arbitrary and capricious 

nor do they present a major policy issue. With respect to your contentions relating to matters relied upon by the Assistant Secretary in his 

determination, it does not appear that the Assistant Secretary acted 

without reasonable justification in his decision.

As to the alleged major policy issue, the principles applied by the 

Assistant Secretary in this case were specifically approved by the 

Council in Department of the Navy, Naval Air Station, Corpus Christi, 

Texas, A/SLMR No. 150, FLRC No. 72A-24 (May 22, 1973). Further, in 

Veterans Administration Center, Togus, Maine, A/SLMR No. 84, FLRC 

No. 71A-42 and Veterans Administration Center, Mountain Home, Tennessee, 

A/SLMR No. 89, FLRC No. 71A-45 (June 22, 1972), the Council held that nothing in section 10(b)(4) of the Order implies or requires that a segment 

of professionals be accorded any special right of severance from more 

comprehensive units of an activity's employees. In the instant case, no 

persuasive reasons are advanced for overturning these precedents. Therefore, we conclude that the subject decision of the Assistant Secretary 

presents no major policy issue.

Accordingly, because your appeal fails to meet the requirements for 

review as provided luider section 2411.12 of the Council's rules of 

procedure, review of your appeal is denied.

By the Council.

Sinc^ely,

O'

Henry B.^Frizier III 

ExecutiveTJirector

cc: A/SLMR

Dept, of Labor

R. E. Coy 

VA

93
Department of Justice. U.S. Bureau of Prisons» U.S. Penitentiary, 

Lewlsburg. Pennsylvania, Assistant Secretary Case No. 20-4035 (AP). 

The Assistant Secretary denied the request of the union (Lodge 148, 

American Federation of Government Employees) for an extension of 

time In which to request review of the Regional Administrator’s 

decision In the subject case which request for extension, predicated 

on the absence on vacation of the union's counsel, was received by 

the Assistant Secretary two days late under section 202.6(d) of the 

Assistant Secretary's regulations. The union appealed to the Council 

alleging that the Assistant Secretary's decision was arbitrary and 

capricious, denying the union due process under the spirit. Intent 

and letter of the Order.

Council action (March 20, 1974). The Council held that the decision 

of the Assistant Secretary applying his rules In the circumstances 

of this case does not appear In any manner arbitrary and capricious. 

Also, the appeal did not allege, nor does it appear therefrom, that 

the Assistant Secretary's decision presents a major policy issue. 

Accordingly, the Council denied review of the union's appeal under 

section 2411.12 of the Council's rules of procedure (5 CFR 2411.12).

FLRC NO. 73A-55

94
FEDERAL LABOR RELATIONS COUNCIL

1900 E STREET, N.W. • WASHINGTON, D.C. 20415

March 20, 1974

UNITED STATES

Mr. William R. Talt, Jr. 

McNerney, Page, Vanderlin & Hall 

433 Market Street 

Williamsport, Pennsylvania 17701

Re: Department of Justice, U.S. Bureau 

of Prisons, U.S. Penitentiary, 

Lewisburg, Pennsylvania, Assistant 

Secretary Case No. 20-4035 (AP), 

FLRC No. 73A-55

Dear Mr. Tait:

The Council has carefully considered your petition for review of 

the Assistant Secretary's decision in the above-entitled case, and 

the agency’s opposition thereto.

The Assistant Secretary denied your request for an extension of time 

in which to request review of the Regional Administrator's decision 

in the subject case, which request for extension (predicated on your 

absence on vacation) was received by the Assistant Secretary on the 

last day for the filing of the request for review. The Assistant 

Secretary based his decision on section 202.6(d) of his regulations 

which provides, in pertinent part, that: "Requests for an extension of time shall be in writing and received by the Assistant 

Secretary not later than three (3) days before the date the request 

for review is due." The Assistant Secretary determined that considerations of uniform and expeditious handling of cases compelled 

adherence to the timeliness requirements of his regulations.

In your petition for review you contend that the Assistant Secretary's 

decision was arbitrary and capricious, denying you due process under 

the spirit, intent and letter of the Order.

Section 2411.12 of the Council's rules provides that a "petition for 

review of a decision of the Assistant Secretary is not a matter of 

right, but of discretion, and, subject to the requirements of this 

part, will be granted only where there are major policy issues present 

or where it appears that the decision was arbitrary and capricious." 

Your petition for review fails to meet these requirements.

95
In the Council's opinion, the decision of the Assistant Secretary 

applying his rules in the circumstances of the instant case does 

not appear in any manner arbitrary and capricious. Also, you 

neither alleged in your appeal, nor does it appear therefrom, that 

the Assistant Secretary's decision presents a major policy issue.

Accordingly, as your appeal fails to meet the requirements for review 

as provided in section 2411.12 of the Council's rules of procedure, 

review of your appeal is hereby denied.

By the Council.

Sinc^ely,

Henry 8. Hrazier III 

Execut We/Director

cc: A/SLMR

Dept, of Labor

R. Alpher 

Bureau of Prisons

96
FLRC No. 73A-58

United States Air Force 321st Combat Support Group, Grand Forks Air 

Force Base, North Dakota, A/SLMR No. 319. The Assistant Secretary 

dismissed a representation petition filed by American Federation of 

Government Employees (AFGE) Local 3379 because he found it barred 

by a draft agreement between National Federation of Federal Employees 

Local 1347 and the activity. In this connection, the Assistant 

Secretary found that the agreement contained substantial and finalized 

terms and conditions of employment sufficient to stabilize the bargaining relationship, and had been timely signed by authorized 

representatives of the parties on the last day of a ninety day period 

during which they could negotiate such an agreement free from a 

rival union’s claim for representation (pursuant to section 202.3(d) 

of the Assistant Secretary's regulations). AFGE appealed to the 

Council, asserting that the Assistant Secretary's decision was 

arbitrary and capricious because it did not resolve credibility 

Issues posed by the record, and because the Assistant Secretary's 

findings of fact regarding the conclusion of the agreement by the 

parties were unsupported by substantial creditable evidence.

Council action (March 20, 1974). The Council held that the Assistant 

Secretary's decision did not appear arbitrary and capricious because 

he made dispositive findings of fact, and it did not appear from AFGE's 

appeal that the decision was without reasonable justification. Moreover, the Council ruled that AFGE's appeal did not allege, nor did 

It appear therefrom, that any major policy issue was presented by 

the Assistant Secretary's decision. Accordingly, the Council denied 

review of AFGE's appeal pursuant to section 2411.12 of the Council's 

rules of procedure (5 CFR 2411.12).

97
UNITED STATES

FEDERAL LABOR RELATIONS COUNCIL

1900 E STREET, N.W. • WASHINGTON, O.C. 2041S

March 20, 1974

Mr. L. M. Pellerzi 

General Counsel

American Federation of Government 

Employees, AFL-CIO 

1325 Massachusetts Avenue, NW. 

Washington, D.C. 20005

Re: United States Air Force 321st Combat 

Support Group, Grand Forks Air Force 

Base. North Dakota, A/SLMR No, 319, 

FLRC No. 73A-58

Dear Mr. Pellerzi:

The Council 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 his decision, the Assistant Secretary dismissed a representation 

petition filed on October 30, 1972, by American Federation of Government 

Employees (AFGE), AFL-CIO, Local 3379, because the petition was barred 

by an agreement entered into between the National Federation of Federal 

Employees (NFFE) Local 1347 and the activity. In this regard, the 

Assistant Secretary found that on October 26, 1972, the last day of a 

ninety day period during which NFFE Local 1347 and the activity could 

negotiate an agreement free from a rival union's claim for representation 

(pursuant to section 202.3(d) of the Assistant Secretary's Regulations), 

the president of NFFE Local 1347 and the Civilian Personnel Officer of 

the activity signed a draft of a collective agreement which contained 

substantial and finalized terms and conditions of enq>loyment sufficient 

to stabilize the bargaining relationship. The Assistant Secretary further 

found that the Civilian Personnel Officer had been authorized by the Base 

Commander to sign such an agreement on behalf of the activity. Based on 

these findings, the Assistant Secretary determined that this draft agreement was binding on the parties, and properly barred a subsequently 

filed representation petition.

In your petition for review, you contend that the decision of the 

Assistant Secretary was arbitrary and capricious because the Assistant 

Secretary did not resolve credibility issues posed by the record, and 

because he made findings of fact concerning the conclusion of an agreement on October 26, 1972, which are unsupported by substantial creditable 

evidence.

98
In the opinion of the Council, your appeal does not meet the 

requirement for review under section 2411.12 of the Council’s rules. 

That is, the Assistant Secretary’s actions do not appear arbitrary 

and capricious, for he made dispositive findings of fact, and it does 

not appear from your appeal that the decision was without reasonable 

justification. Moreover, your appeal neither alleges, nor does it 

appear therefrom, that any major policy issue is presented by the 

Assistant Secretary's decision. Accordingly, since your petition 

fails to meet the requirements for review as provided under section

2411.12 of the Council’s rules of procedure, review of your appeal 

is hereby denied.

By the Council.

Sincerely,

Henry B 

Executi

razier III 

Director

cc: A/SLMR

Dept, of Labor

Capt. J. E. Dumerer 

USAF

M. A. Forscey 

NFFE

99
National Association of Government Employees. Local R14-32 (Fort 

Leonard Wood), Fort Leonard Wood, Missouri. Assistant Secretary Case 

No. 62-3712 (CO). The Assistant Secretary upheld the Regional 

Administrator's dismissal of the complaint filed by the National 

Federation of Federal Employees (NFFE), which complaint alleged 

that National Association of Government Employees (NAGE) Local 

R14-32 violated section 19(b)(1) of the Order by soliciting signatures 

for a representation election petition during duty hours. The Assistant 

Secretary found that NAGE did not violate section 19(b)(1) since there 

was no evidence that such conduct Interfered with, restrained, or 

coerced the employees in the exercise of their rights under section 

1(a) of the Order. NFFE appealed to the Council alleging that the 

Assistant Secretary's decision presents a major policy issue concerning whether a union may be charged by another union with an unfair 

labor practice under section 19(b)(1) for soliciting election petition 

signatures from employees during duty hours.

Council action (March 20, 1974). The Council, without adopting the 

reasoning reflected in the precise language used by Assistant Secretary 

concerning union activities by employee supporters during duty hours, 

determined that the Assistant Secretary's decision presented no major 

policy issue. The Council further held that the petition neither 

alleged, nor did it otherwise appear, that the Assistant Secretary's 

decision was arbitrary and capricious. Accordingly, the Council 

denied review of NFFE's appeal pursuant to section 2411.12 of the 

Council's rules of procedure (5 CFR 2411.12).

FLRC NO. 73A-62

100
I 4 H # P FEDERAL LABOR RELATIONS COUNCIL

\ 'm i I Y f ^ ' /-« 1900 E STREET, N.W. • WASHINGTON, D.C. 20415

March 20, 1974

Mr. Michael Sussman 

Staff Attorney 

National Federation of 

Federal Employees 

1737 H Street, NW. 

Washington, D.C. 20006

Re: National Association of Government

Employees, Local R14-32 (Fort Leonard 

Wood), Fort Leonard Wood, Missouri, 

Assistant Secretary Case No. 62-3712 

(CO), FLRC No. 73A-62

Dear Mr. Sussman:

The Coimcil has carefully considered your petition for review of the 

Assistant Secretary's decision in the above-entitled case.

The Assistant Secretary's decision upheld the Regional Administrator's 

dismissal of your complaint that the National Association of Government 

Employees (NAGE) Local R14-32 had violated section 19(b)(1) of the 

Order by allegedly soliciting, during duty hours, signatures for a 

representation election petition. The Assistant Secretary found that 

NAGE did not violate section 19(b)(1) of the Order since there was no 

evidence that such conduct interfered with, restrained, or coerced 

the employees in the exercise of their rights under section 1 (a) of 

the Order.

You contend in your petition for review that the Assistant Secretary's 

decision presents a major policy issue concerning whether a union may 

be charged by another union with an unfair labor practice imder section 

19(b)(1) of the Order for soliciting election petition signatures from 

employees during duty hours.

In the Council's opinion, your petition for review does not meet the 

considerations governing review established by section 2411.12 of the 

Council's rules. That is, without adopting the reasoning reflected 

in the precise language used by the Assistant Secretary in his decision 

concerning union activities by employee supporters during duty hours, 

no major policy issue is presented with respect to the meaning of 

section 19(b)(1) of the Order by the Assistant Secretary's decision in 

this case. Moreover, you do not allege, nor does it otherwise appear, 

that such decision was in any manner arbitrary and capricious.

101
since the Assistant Secretary's decision does not appear arbitrary 

and capricious and does not present a major policy issue, your appeal 

fails to meet the requirements for review as provided In section

2411.12 of the Council's rules of procedure. Accordingly, your petition for review is denied.

By the Council.

Sincerely,

Henry F razler III 

Execut ivfe-Oirector

cc: A/SLMR

Dept, of Labor

G. J. Arrington 

NAGE

R. Slniboll 

Ft. Leonard Wood

102
FLRC NO. 73A-63

Department of the Army* United States Army Base Command, Okinawa, A/SLMR 

No. 243. The Assistant Secretary, In pertinent part, excluded several 

employee classifications from an actlvlty-wlde unit because they were 

vested with supervisory authority over foreign nationals, and he made 

no determination with regard to another classification because of an 

absence of Information concerning the Incumbent's duties and extent 

of direction over foreign nationals. In reaching his decision, 

the Assistant Secretary relied upon principles enunciated in his 

decision In Department of the Air Force, McConnell Air Force Base, 

Kansas, A /SLMR No. 134 [upheld by the Council, FLRC No. 72A-15 

(April 17, 1973), Report No. 36], which stated, in effect, that the 

determinative factors with regard to supervisory status are the 

duties performed by, rather than the type of personnel working under, 

the alleged supervisor. The union appealed to the Council, alleging that the Assistant Secretary's decision presents a major policy 

issue or appears arbitrary and capricious principally because: the 

agency failed to produce evidence concerning the supervisory duties 

of the Incumbents in the disputed classifications; the Assistant 

Secretary's findings were not supported by the weight of the evidence 

in the record; the Assistant Secretary failed to adhere to applicable 

precedent; and the McConnell principles are not dispositive.

Council action (March 20, 1974). The Council held that the Assistant 

Secretary's decision does not appear arbitrary and capricious because 

it does not appear that he acted without reasonable justification in 

his findings. The Council also held that the subject decision does 

not present a major policy issue, since the Assistant Secretary's 

decision is consistent with McConnell and other pertinent Council 

decisions. Accordingly, the Council denied review of the union's 

appeal under section 2411.12 of the Council's rules of procedure 

(5 CFR 2411.12).

103
UNITED STATES

FEDERAL LABOR RELATIONS COUNCIL

1900 E STRECT, N.W. • WASHINGTON, D.C. 20415

March 20, 1974

Mr. Raymond J. Malloy 

Assistant General Counsel 

American Federation of Government 

Employees, AFL-CIO 

1325 Massachusetts Avenue, NW. 

Washington, D.C, 20005

Re: Department of the Army, United

States Army Base Command, Okinawa. 

A/SLMR No. 243, FLRC No. 73A-63

Dear Mr. Malloy:

The Council has carefully considered your petition for review of the 

Assistant Secretary's decision in the above-entitled case, and the 

agency's opposition thereto.

The Assistant Secretary, in pertinent part, excluded several en^)loyee 

classifications from the activity-wide unit because they were vested 

with supervisory authority over foreign nationals. He further made no 

determination as to another category's inclusion or exclusion from the 

unit because of the absence of specific information as to the incumbent's duties and the extent to which he provides direction to foreign 

nationals. In reaching his determination, the Assistant Secretary 

relied upon the principles enunciated in his decision in Department of 

the Air Force. McConnell Air Force Base. Kansas, A/SLMR No. 134 [upheld 

by the Council, FLRC No. 72A-15 (April 17, 1973), Report No. 36] where 

he excluded from the recognized unit, as supervisors, individuals who 

exercised supervisory authority over military personnel who were not 

"employees" as defined by section 2(b) of the Order. In that case, 

the Assistant Secretary stated, in effect, that the determinative factors with regard to supervisory status are the duties performed by, 

rather than the type of personnel working under, the alleged supervisor.

In your petition for review you contend that the Assistant Secretary's 

decision appears arbitrary and capricious or that a major policy issue 

is presented principally because: the agency failed to produce evidence 

relating to the supervisory duties of the incumbents in the disputed 

classifications; the Assistant Secretary's findings are not supported 

by the weight of the evidence in the record; the Assistant Secretary 

failed to adhere to applicable precedents in reaching his determination;

104
and because the McConnell principles relied on by the Assistant 

Secretary are not dispositive of the instant case since McConnell 

was not concerned with supervision of foreign nationals as are here 

involved.

In the Cotmcil's opinion, your appeal does not meet the requirements 

for review as provided in section 2411.12 of the Council's rules of 

procedure. That is, in our view, the Assistant Secretary's decision 

does not appear arbitrary and capricious, nor does it present a major 

policy issue. With respect to your contentions that his decision 

appears arbitrary and capricious, it does not appear that the Assistant 

Secretary acted without reasonable justification. As to the alleged 

major policy Issues, the Assistant Secretary's decision clearly is 

consistent with the Council's decisions in McConnell and other pertinent 

cases.*

Since the Assistant Secretary's decision does not appear arbitrary and 

capricious and does not present a major policy issue, your appeal fails 

to meet the requirements for review as provided in section 2411.12 of 

the Coimcil's rules of procedure. Accordingly, review of your appeal 

is hereby denied.

By the Council.

Sincerely,

Henry Bs^razier III 

Executive Director

cc; A/SLMR

Dept, of Labor

G. L. Olmsted 

Army

*See, e.g. Mare Island Naval Shipyard, Vallejo, California, A/SLMR No. 

129, FLRC No. 72A-12 (May 25, 1973), Report No. 40; United States 

Naval Weapons Center, China Lake, California, A/SLMR No. 128, FLRC 

No. 72A-11 (May 25, 1973), Report No. 40; and United States Department 

of Agriculture, Northern Marketing and Nutrition Research Division, 

Peoria. Illinois, A/SLMR No. 120, FLRC No. 72A-4 (April 17, 1973), 

Report No. 36.

105
Internal Revenue Service, Office of the District Director. Jacksonville 

District, Jacksonville, Florida, A/SLMR No. 214. Upon a conq>lalnt 

filed by the National Treasury Employees Union, Jacksonville District 

Joint Council, and the National Treasury Employees Union, the Assistant 

Secretary held that the agency had not violated section 19(a)(6) of 

the Order by refusing to furnish the union with the home addresses of 

all employees in the union's exclusive bargaining unit. The Council 

accepted the case for review, having determined that a major policy 

issue was present. [Report No. 42]

Council action* (March 29, 1974). The Council agreed with the Assistant 

Secretary that an exclusive representative is entitled to and, to the 

extent necessary, must be provided with effective means of communicating with the employees in the unit. In this regard, agencies, as a 

part of their obligation to consult, confer, or negotiate with an 

exclusive representative, must where appropriate, provide an exclusive 

representative with means of communicating with unit employees and a 

failure to do so would constitute a violation of section 19(a)(6). 

Further, in this regard the Council held that a determination of whether 

an exclusive representative in fact has effective means of communicating 

with unit employees must be made on a case-by-case basis. Applying the 

foregoing in the instant case, the Cotmcil sustained the Assistant 

Secretary’s determination on the basis of the record that the union 

did in fact have effective means of communicating with the unit employees 

and, therefore, the agency had no obligation to provide the union with 

the additional means of communication here involved.

FLRC NO. 72A-50

*The Chairman of the Civil Service Commission did not participate in this 

decision.

106
UNITED STATES 

FEDERAL LABOR RELATIONS COUNCIL 

WASHINGTON, D.C. 20415

Internal Revenue Service,

Office of the District Director,

Jacksonville District, Jacksonville,

Florida

Respondent

and

A/SLMR No. 21A

National Treasury Employees Union, FLRC No. 72A-50

Jacksonville District Joint Council,

and the National Treasury Employees Union

Complainant

and

United States Civil Service Commission

Intervenor

DECISION ON APPEAL FROM ASSISTANT SECRETARY DECISION

Background of Case

This appeal arose from a Decision and Order of the Assistant Secretary 

who, upon a complaint filed by National Treasury Enqployees Union, 

Jacksonville District Joint Council, and the National Treasury Employees 

Union (herein jointly called the union) held that Internal Revenue 

Service, Office of the District Director, Jacksonville District, 

Jacksonville, Florida (herein referred to generally as the IRS), had 

not violated section 19(a)(6) of the Order by refusing to furnish the 

union with the home addresses of all employees in the union's exclusive 

bargaining unit.

The underlying facts as found by the Administrative Law Judge, whose 

findings, conclusions, and recommendations were adopted by the Assistant 

Secretary, are essentially undisputed. Briefly the facts are as follows:

"U The name of the union appears as amended during the pendency of 

the instant proceeding.

107
The union,which is the exclusive bargaining representative for a unit 

of all nonsupervisory professional and nonprofessional employees at 

the activity requested IRS to provide it with the home addresses of the 

employees in the unit. When IRS declined to provide the requested 

information, the union filed the instant complaint.

The Assistant Secretary determined, in effect, that an exclusive 

representative is entitled to and, to the extent necessary, must be 

provided with effective means of communicating with unit employees 

under the Order. In this regard, he found dispositive in the instant 

case that the union had about one steward for each 40 unit employees; 

the union receives from IRS a quarterly list of the names of unit 

employees; IRS has agreed to provide the union with meeting spaces and 

bulletin boards; the union can distribute literature in IRS offices on 

nonduty time; and IRS provides each new employee with information concerning the existence of the union, including an "announcement card" 

inviting the employee to furnish the union with his home address. Also 

noted was the union’s apparent failure to utilize existing means of 

communicating with unit employees, for example, use of IRS meeting facilities and visitation by union officials at the duty posts. The Assistant 

Secretary concluded that on the facts of this case the union had effective 

means of communicating with unit employees and dismissed the complaint.^/

The union appealed the Assistant Secretary's decision to the Council.

The Council found that a major policy issue was presented concerning the 

criteria applied by the Assistant Secretary in this case and accepted the 

petition for review on this issue. The union filed a brief and a supplemental submission.3./ iRS filed a response to the union's supplemental 

material and also relied in effect on the opposition which it had filed to 

the union's initial request for review.^/

Ij The Assistant Secretary found it unnecessary to consider the contention 

of the Civil Service Commission that he was barred by certain CSC regulations from ordering the IRS to furnish the union with the addresses of 

employees in the unit, stating that his decision should not be construed 

to mean that he necessarily agrees with the contention. The Assistant 

Secretary also specifically did not adopt the finding of the ALJ to the 

extent that he implies that where an exclusive representative has several 

different means in which to commiinicate with unit employees, each of which 

alone may be inadequate to provide effective communication, the cumulative 

effect of the various means available may nevertheless provide the union 

with an adequate means of communicating with unit employees.

The union also requested an opportunity to present oral argument before 

the Council. The request is denied as the record adequately reflects the 

issues and the respective positions of the parties.

_4/ The United States Civil Service Commission made no submission.

108
Opinion

As already Indicated, the essence of the criteria enunciated by the 

Assistant Secretary Is that an exclusive representative Is entitled to 

and, to the extent necessary, must be provided with effective means of 

communicating with the employees In the unit. The Council agrees with 

this determination.

Section 10(e) of the Order provides that a labor organization which has 

been selected as the exclusive bargaining representative Is entitled to 

act for and to negotiate agreements covering all employees in the unit 

and it is responsible for representing the Interests of all employees in 

the unit without discrimination and without regard to labor organization 

membership.V

To this end, in our opinion, the implementation of the provisions of 

section 10(e) of the Order requires that the exclusive representative 

have effective means of comnunicatlng with unit employees. Moreover, 

agencies, as a part of their obligation to consult, confer, or negotiate 

with an exclusive representative, must where appropriate, provide an exclusive representative with means of communicating with unit employees 

and a failure to do so would constitute a violation of section 19(a)(6).

A determination of whether an exclusive representative in fact has 

effective means of communicating with unit employees must be made on a 

case-by-case basis. In many instances, little or no action by the agency 

would be necessary to supplement the means of communication readily available to the union on its own initiative. On the other hand, in some 

instances where because of such factors as the size of unit, geographic 

dispersion of employees. Isolated duty locations, etc., the union may not 

have effective means of communicating with the unit employees. In such 

situations, as stated above, the proper implementation of the Order might 

require that the agency assist the exclusive representative in facilitating 

such communication, consistent with law and regulation, e.g., by providing 

the union with the periodic use of the Intraagency mailing system or addressing envelopes containing union material and depositing those envelopes 

in the U.S. mail for delivery to employees at their home addresses. A failure 

to provide the exclusive bargaining representative such access to employees 

in the unit, where required, would constitute a failure on the part of the 

agency to meet its obligation to consult, confer, or negotiate with the 

exclusive representative in violation of section 19(a)(6) of the Order.

V Moreover Section 13 requires that an agreement between an agency and 

a labor organization must contain a grievance procedure for the consideration of grievances over the interpretation or application of the agreement. Of course, the exclusive representative's interaction with unit 

employees is an integral part of such a grievance procedure.

109
In the instant case, applying the criterion that a union must have 

effective means of communicating with vinit employees, the Assistant 

Secretary determined, on the basis of the record, that the union did 

in fact have effective means of communicating with the unit employees 

and, therefore, IRS had no obligation to provide the union with additional such means of communication. Accordingly, the IRS’s actions 

did not violate section 19(a)(6) of the Order. The Assistant Secretary’s 

decision is clearly supported by the record and consistent with the 

purposes of the Order

Accordingly, pursuant to section 2411.17(b) of the Council’s rules of 

procedure, we sustain the Assistant Secretary's dismissal of the complaint.

By the Council.*

Henry B. grazier III 

Executive Director

Issued: March 29, 1974

*The Chairman of the Civil Service Commission did not participate in 

this decision.

Like the Assistant Secretary, we find it unnecessary in this case 

to consider the propriety of the CSC regulation which prohibits an 

agency from furnishing a union with the home addresses of employees.

110
Federal Aviation Administration, U.S. Department of Transportation, 

and National Association of Air Traffic Specialists, Des Moines, Iowa, 

Flight Service Station (Hatcher, Arbitrator). The arbitrator determined that the parking accommodations for FAA employees, furnished by 

the city under Its lease to the FAA of airport technical facilities, 

did not meet the adequacy requirements of FAA policy on employee parking, and thus violated the negotiated agreement which required FAA 

to provide adequate parking in compliance with agency policy on parking 

at FAA technical facilities on airports. The arbitrator also found 

that the FAA regional director had made repeated but unsuccessful 

demands of the city to provide adequate parking which would meet such 

FAA policy. As a remedy, the arbitrator directed the agency to innediately provide, by use of agency funds, tenqporary parking in substantial 

compliance with the agreement and the FAA policy, to be furnished rentfree unless the FAA regional director determines that a reasonable 

cost is appropriate, until the agency can provide other parking which 

fully meets the adequacy requirements of the agreement and the FAA 

policy. The agency filed exceptions, alleging in effect that: (1) 

the arbitrator exceeded his authority under the agreement by interpreting agency policy contrary to the agency's interpretation and erroneously 

adding his own interpretation; and (2) the remedy would require the 

Improper use of appropriated funds in violation of various Comptroller 

General decisions and a GSA order. The agency also requested a stay 

of the arbitrator's award.

Council action (March 29, 1974). The Council determined that the 

agency's exceptions were not supported by sufficient facts and circumstances to warrant review, as required by section 2411.32 of the 

Council's rules (5 CFR 2411.32). Regarding the agency's first exception, the Council held that the agency misinterpreted the arbitrator's 

award in which he merely made an application of the FAA policy to the 

partictilar facts of the grievance, and made essentially the same determination as the agency's regional director, i.e., the parking was not 

adequate imder the FAA policy. As to the agency's second exception, 

in the Council's view, the applicability of the GSA order and the 

various.Comptroller General decisions was not shown. Accordingly, 

the Council denied the agency's petition for review. Likewise, the 

Council denied the agency's request for a stay tinder section 2411.47(d) 

of the Council's rules (5 CFR 2411.47(d)).

FLRC n o . 73A-50

ill
UNITED STATES

FEDERAL LABOR RELATIONS COUNCIL

1900 E STREET, N.W. • WASHINGTON, D.C. 20415

March 29, 1974

Mr. Kenneth H. Chandler 

Acting Director of Personnel 

and Training 

Office of the Secretary 

U.S. Department of Transportation 

Washington, D.C. 20590

Re: Federal Aviation Administration, U.S. 

Department of Transportation, and 

National Association of Air Traffic 

Specialists. Des Moines. Iowa. Flight 

Service Station (Hatcher, Arbitrator), 

FLRC No. 73A-50

Dear Mr. Chandler:

The Council has carefully considered your petition for review of an 

arbitrator's award, and the union’s opposition thereto, filed in the 

above-entitled case.

As stated in the award. Article VIII of the collective bargaining 

agreement!.' requires the agency to provide "adequate" parking to its 

flight service employees and to comply with agency policy on parking 

acconmodations at FAA facilities. Such policy on parking is contained 

in FAA Order 4665.3A, which obligates the agency to provide "adequate" 

parking for FAA employees engaged in the maintenance and operation of 

its technical facilities on airports and which establishes considerations 

by which such adequacy is determined.

According to the award, the bargaining unit employees involved in this 

case are engaged in the maintenance and/or operation of FAA technical 

facilities located on the Municipal Airport at Des Moines, Iowa which 

are occupied under a lease with the City of Des Moines. As part of the

1^/ Article VIII (Parking Facilities) provides:

To the extent that FAA has control over parking, adequate 

parking accommodations shall be provided f o % the privately 

owned vehicles of on-duty Flight Service Employees. Where the 

local situation permits, parking facilities may be designated 

as reserved for employees of the facility. Regional officials 

and Facility Chiefs shall assure that the FAA policy on parking 

accommodations at FAA facilities is complied with.

112
rental consideration, the city furnishes free parking for FAA employees' 

vehicles and Government vehicles for the term of the lease. The lease 

does not contain provisions assuring adequate employee parking accommodations at the technical facilities located at the airport.— '

During the term of the lease a disagreement arose between the FAA and 

the City of Des Moines over the adequacy of the parking afforded FAA 

employees when the city relocated the parking area for employees, including the employees of FAA and the airport owner/operator and other 

non-FAA employees. The agency's regional director advised the city that 

the new parking area was not "adequate" and sought to secure "adequate" 

parking facilities for the FAA employees. In turn the city insisted 

that the increased number of airport customer-users necessitated FAA's 

use of the new parking area. The regional director's demands for 

"adequate" parking were not successful.

Bargaining unit employees complained to FAA that the new parking area 

was not adequate. These complaints culminated in the filing of a collective grievance requesting that the agency comply with its obligation to 

furnish "adequate" parking under Article VIII of the agreement and FAA 

Order 4665.3A. The agency and the union submitted the grievance to 

arbitration under the agreement . V

The arbitrator determined that the agency had failed to provide "adequate" 

parking because the new parking area did not meet the adequacy requirements in the FAA Order and had thus violated Article VIII of the agreement 

and FAA Order 4665.3A. The arbitrator determined that the FAA agents who 

executed the lease were remiss in their duties by failing to have included 

in the lease a provision that adequate free employee parking accommodations 

should be made available at the Municipal Airport for FAA employees, as

y Secticm 4 a (2)(a) of FAA Order 4665.3A provides, in relevant part;

(a) On Airports. Adequate parking accommodations for FAA employees 

in close proximity to FAA technical facilities is considered to 

be an integral part of each facility.

2 No new leases, permits or other instruments are to be executed 

or existing ones modified without the inclusion of specific 

statements assuring adequate employee parking accommodations at 

all technical facilities located on the airport. . . .

Section 7 of Article XX (Grievance Procedure) of the agreement 

provides, in relevant part:

The decision of the arbitrator is final, except that either Party 

may take exception to the award to the Federal Labor Relations 

Council in accordance with its regulations.

113
agreed with the union in Article VIII of the agreement and the employer's 

Order 4665.3A. As a remedy, the arbitrator directed the agency to imnedi' 

ately provide, by use of agency funds, temporary parking which complies 

as closely as possible with Article VIII of the agreement and FAA Order 

4665.3A, and that the temporary parking must be furnished rent free 

unless the regional director determines a reasonable cost is appropriate 

until such time as the agency can provide (either by renewing the lease 

or by prior agreement with the lessor) other parking at an area %rtiich 

fully complies with the "adequacy requirements . . . as set forth in 

Article VIII of the agreement and FAA Order 4665.3A.'—

The agency requests that the Council grant review of the arbitrator's 

award on the basis of two exceptions discussed below. The agency also 

requests that the Council grant a stay of the arbitrator's award pending such review.

Under section 2411.32 of the Council's rules of procedure, review of an 

arbitration award will be granted "only where it appears, based upon the 

facts and circumstances described in the petition, that the exceptions 

to the award present grounds that the award violates applicable law, 

appropriate regulation, or the order, or other grounds similar to those 

upon which challenges to arbitration awards are sustained by courts in 

private sector labor-management relations."

The agency's first exception contends, in effect, that the arbitrator 

exceeded his authority under Article XX, Section 10 of the agreement^/ 

by interpreting the agency's policy in FAA Order 4665.3A contrary to the 

agency's interpretation and erroneously adding his own interpretation 

to FAA Order 4665.3A. However, this exception is not supported by facts 

and circumstances, as required by section 2411.32 of the Council's rules 

of procedure. It is uncontroverted that the arbitrator was authorized by 

the parties to determine whether the FAA "has provided adequate parking

_4/ In fashioning his remedy, the arbitrator expressly relied upon 

paragraph 6a(2)(b) of FAA Order 4665.3A, which provides:

(b) Employee Parking at Technical Facilities. A maximum effort 

shall be made to negotiate for adequate employee parking.

In the event these efforts fail, the Regional Director may 

approve the expenditure of FAA funds to obtain temporary 

relief for the problem until such time as parking accommodations can be obtained from the airport owner/sponsor . . ,

_5/ Article XX, Section 10 provides:

The arbitrator shall not in any manner or form whatsoever 

directly or Indirectly add to, subtract from, or in any other 

way alter the provisions of this agreement.

114
accommodations at FAA facilities. . .at Des Moines, Iowa. . .in 

compliance with Article VIII of the Association-Employer Agreement and 

Federal Aviation Administration's Order A665.3A." Moreover, as noted 

previously. Article VIII specifically incorporates the "FAA policy on 

parking accommodations at FAA facilities.'* In the opinion of the Council, 

the agency has misinterpreted the arbitrator's award in which the arbitrator merely made an application of the provisions of FAA Order 4665.3A 

to the particular facts of the grievance and, in so doing, made essentially 

the same determination as had the agency's regional director, namely, that 

the parking afforded the agency's employees was not "adequate," as required 

by FAA Order 4665.3A.

The agency, in its second exception, contends that the remedy fashioned 

by the arbitrator would require the improper use of appropriated funds, 

in violation of various Comptroller General decisions and a GSA order.

In the Council's opinion, the applicability of the GSA order and the 

cited Comptroller General decisions has not been demonstrated. It therefore appears to the Council that the agency has not provided sufficient 

facts and circumstances to support its second exception, as required by 

section 2411.32 of the Council's rules of procedure.

Accordingly, the Cotmcil has directed that the agency's petition for 

review be denied because it fails to meet the requirements for review 

set forth in section 2411.32 of the Council's rules of procedure. Likewise, the Council has directed that the agency's request for a stay be 

denied under section 2411.47(d) of the Council's rules.

By the Coimcil.

Sincerely,

Henry B ^ F r a z i e r H r 

Executive Director

cc: W. Graham 

NAATS

115
U.S. Air Force, Andrews Air Force Base. Base Fire Department. Assistant 

Secretary Case No. 22-3954 (CA). Based on section 19(d) of the Order, 

the Assistant Secretary upheld the Assistant Regional Director's dismissal 

of the National Federation of Government Employees (NFFE) complaint 

alleging violations of section 19(a)(1), (5) and (6 ) of the Order.

NFFE appealed to the Council on the ground that the Assistant Secretary's 

decision was arbitrary and capricious because he failed adequately to 

Investigate and consider the union's contentions, and to order a hearing, in the case.

Council action (April 29, 1974). The Council held that the Assistant 

Secretary did not appear to have disregarded the union's contentions; 

the union's appeal did not demonstrate that substantial factual issues 

exist requiring a hearing; and the decision of the Assistant Secretary 

did not appear to be without reasonable justification or in any other 

manner arbitrary and capricious. The Council further held that the 

petition neither alleged, nor did it appear therefrom, that any major 

policy issue is presented by the Assistant Secretary’s decision. 

Accordingly, the Council denied review of NFFE's appeal pursuant to 

section 2411-12 of the Council's rules of procedure (5 CFR 2411.12).

FLRC NO. 73A-66

116
UNITED STATES

' *^v I FEDERAL LABOR RELATIONS COUNCIL

%, 1900 E STREET, N.W. * WA8HIN6TON, O.C. 20418

April 29, 1974 ?

M s . Janet Cooper 

Staff Attorney 

National Federation of 

Federal Employees 

1737 H Street, NW. 

Washington, D.C. 20006

R e : U.S. Air Force, Andrews Air Force B a s e .

Base Fire Department. Assistant Secretary 

Case No. 22-3954 (CA), FLRC No. 73A-66

Dear M s . Cooper:

The Council has carefully considered your petition for review of the 

Assistant Secretary's decision in the above-entitled case.

The Assistant Secretary denied your request for review, seeking 

reversal of the Assistant Regional Director's dismissal of your 

unfair labor practice complaint, alleging violations of section 

19(a)(1), (5) and (6 ) of the Order. In this regard, the Assistant 

Secretary found, in agreement with the Assistant Regional Director, 

"that your complaint cannot be processed based on section 19(d) 

of the Order as it is clear that the issues herein were raised 

previously under a grievance procedure." He further rejected your 

contention that section 19(d) is inapplicable (because your complaint 

was filed after a claimed second implementation of the alleged 

change in working conditions which had been the subject of the 

grievance) finding this contention was raised for the first time in 

your request for review and was not supported by the evidence 

presented to the Assistant Regional Director.

In your petition for review you contend that the Assistant Secretary's 

decision is arbitrary and capricious because he failed (1 ) to make 

his own investigation of your allegation that there were two separate 

implementations of the changed working conditions; (2 ) to consider 

your argument that section 19(d) of the Order does not raise a bar 

to this action because the grievance was withdrawn without settlement; 

and (3) to direct that a hearing be held to resolve the conflicting 

evidence.

117
In our view your petition for review of the Assistant Secretary's 

decision does not meet the requirements of section 2411.12 of the 

Council's rules. The Assistant Secretary does not appear to have 

disregarded your contentions; your appeal does not demonstrate that 

substantial factual issues exist requiring a hearing; and the decision 

of the Assistant Secretary does not appear to be without reasonable 

justification or in any other manner arbitrary and capricious. Moreover, your petition neither alleges, nor does it appear therefrom, 

that any major policy issue is presented by the Assistant Secretary's 

decision.

Accordingly, since your petition fails to meet the requirements for 

review as provided under section 2411.12 of the Council's rules of 

procedure, review of your appeal is denied.

By the Council.

Sincerely,

Henry B. Frazier III 

Executive Director

cc; A/SLMR

Dept, of Labor

R. E. Keller 

Andrews Air Force Base

118
Office of Economic Opportunity, Region V. Chicago, Illinois, A/SLMR 

No. 334. The Assistant Secretary dismissed complaints filed by the 

Individual grlevant and American Federation of Government Employees 

Local 2816 (AFGE), alleging agency violations of section 19(a)(1) of 

the Order In falling to follow the agency grievance procedure In several matters In which the grlevant was represented by the union. The 

Assistant Secretary found that, even assuming an agency falls to apply 

the provisions of Its own grievance procedure, such failure, standing 

alone, does not Interfere with rights assured under the Order. Further, 

he found that the evidence did not establish that the agency's conduct 

was motivated by antl-unlon considerations. The Assistant Secretary 

concluded that the agency's failure to process the grievances under 

Its grievance procedure did not violate 19(a)(1).

AFGE appealed to the Council, contending a major policy Issue Is present, 

namely whether an agency's alleged unjustified failure to process a 

grievance according to the terms of an agency grievance procedure violates 

19(a)(1) where the grievance was presented and prosecuted by the grlevant 

through his exclusively recognized union representative; and asserting 

In this regard that the agency's action discourages union membership.

Council action (April 29, 1974). The Council held that, based on the 

contentions of the union described above, the Assistant Secretary's 

decision did not present a major policy issue. In this connection 

the Cotxncil ruled, as did the Assistant Secretary, that clearly the 

failure of an agency to follow its own grievance procedure, standing 

alone, does not violate section 19(a)(1) of the Order; moreover, such 

a failure does not become a violation of 19(a)(1) merely by reason of 

the representation of a particular grlevant by a labor organization.

The Council also held that AFGE did not allege, nor did it otherwise 

appear, that the Assistant Secretary's decision was in any manner 

arbitrary and capricious. Accordingly, the Council denied review of 

AFGE's appeal pursviant to section 2411.12 of the Cotmcll's rules of 

procedure (5 CFR 2411.12).

F L R C n o . 74A-3

119
UNITED STATES

FEDERAL LABOR RELATIONS COUNCIL

1900 E STREET, N.W. • WASHINOTON, O.C 20418

April 29, 197A

Mr. Charles Barnhill, Jr.

Davis, Miner, Barnhill & Bronner 

22 East Huron Street 

Chicago, Illinois 60611

Re: Office of Economic Opportunity, 

Region V, Chicago, Illinois. 

A/SLMR No. 334, FLRC No. 74A-3

Dear Mr. Barnhill:

The Council has carefully considered your petition for review of the 

Assistant Secretary's decision in the above-entitled case.

The Assistant Secretary dismissed several unfair labor practice coiih* 

plaints filed by Mr. Bottlgllero and AFGE Local 2816 which alleged 

violations of section 19(a)(1) of the Order by reason of the agency's 

failure to follow the agency grievance procedure in several matters 

in which the grievant was represented by the union. The Assistant 

Secretary based his decision on his findings, in pertinent part, that:

. . . [T]he grievance procedure which allegedly has been violated 

by the agency Involved, is a procedure established by the agency 

itself rather than through the process of bilateral negotiations, 

.... [A]n agency grievance procedure does not result from any 

rights accorded to individual employees or to labor organizations 

under the Order. Moreover, such a procedure is applicable to all 

employees of an agency not covered by a negotiated grievance 

procedure, regardless of whether or not they are included in 

exclusively recognized bargaining units. Under these circumstances, . . . even assuming that an agency improperly falls to 

apply the provisions of its own grievance procedure, such a 

failure, standing alone, cannot be said to Interfere with rights 

assured under the Order and thereby be violative of Section 19(a) 

(1) •

Based on the foregoing, and noting the Administrative Law Judge's 

finding, which I adopt, that the evidence does not establish that 

the Respondent's conduct herein was motivated by antl-unlon 

considerations, I find that the Respondent's failure to process 

the Complainants' grievances under the former's grievance procedure did not constitute a violation of Section 19(a)(1) of the 

Order. [Footnote omitted; emphasis in original.]

120
In your petition for review, you contend that the Assistant Secretary's 

decision presents a major policy issue concerning whether an agency's 

unjustified failure to process a grievance according to the terms of 

an agency-promulgated grievance procedure violates section 19(a)(1) 

of the Order, where that grievance has been presented and prosecuted 

by the grievant through his exclusively recognized union representative, In this regard, you assert that the agency's action 

discourages membership in the union.

In the Council's opinion, your petition for review does not meet the 

considerations governing review established by section 2 4 1 1 .1 2 of 

the Council's rules. That is, based upon the contentions described 

above, no major policy issue is presented by the Assistant Secretary's 

decision, for it is clear, as held by the Assistant Secretary, that 

the agency's failure to follow its own grievance procedure, standing 

alone, is not violative of section 19(a)(1) of the Order. Moreover, 

such a failure on the part of an agency to follow its own grievance 

procedure does not become a violation of 19(a)(1) merely by reason 

of the representation of a particular grievant by a labor organization. 

Further, you do not allege, nor does it otherwise appear, that such 

decision was in any manner arbitrary and capricious.

Since the Assistant Secretary's decision does not present a major 

policy issue and does not appear arbitrary and capricious, it fails 

to meet the requirements for review as provided in section 2411.12 

of the Council's rules of procedure. Accordingly, review of your 

£^peal is hereby denied.

By the Council.

Sincerely,

lenry B. Frazier 111 

Executive Director

c c : A/SLMR

Dept, of Labor

W. Foreman 

OEO

121
FLRC NO. 74A-4

American Federation of Government Employees Local 2677 and Office of 

Economic Opportunity (Dougherty, Arbitrator). The agency appealed 

to the Council from the arbitrator’s award. The appeal was due, under 

the Council's rules, no later than January 7, 1974. However, the 

appeal was not filed with the Council until after the close of business 

on January 8 , 1974, and no extension of the time for filing this petition for review was either requested by the agency or granted by the 

Council.

Council action (April 29, 1974). Because the agency’s appeal was 

tmtimely filed, and apart from other considerations, the Council denied 

the petition for review.

122
\ UNITED STATES

^ 1 FEDERAL LABOR RELATIONS COUNCIL

1900 E STRETT. N.W. • WASHINGTON. D.C. 2041S

April 29, 1974

M r . Howard Toy 

Director of Personnel 

Office of Economic Opportunity 

Washington, D.C. 20506

Re: American Federation of Government Employees 

Local 2677 and Office of Economic Opportunity 

(Dougherty, A r b i t r a t o r F L R C No. 74A-4

Dear Mr. Toy:

The Council has carefully considered your petition for review of an 

arbitrator's award, and the union's opposition thereto, filed in the aboveentitled case. For the reasons indicated below, the Council has determined 

that your petition was untimely filed under the Council's rules of procedure and cannot be accepted for review.

Section 2411.33(b) of the Council's rules provides that an appeal must be 

filed within 2 0 days from the date of service of the arbitrator's award 

on the party seeking review; and tmder section 2411.45(a) such appeal must 

be received in the Council's office before the close of business of the 

last day of the prescribed time limit. In computing these limits, section 

2411.45(b) provides that if the last day for filing a petition falls on a 

Saturday, Sunday or Federal legal holiday, the period for filing shall run 

until the end of the next day which is not a Saturday, Sunday or Federal 

legal holiday.

According to the record before the Council, the arbitrator's award in this 

case was served on you by hand on December 17, 1973. Therefore, under the 

above rules, your appeal was due in the Council's office on or before 

January 7, 1974. However, your petition for review was not filed until 

after the close of business on January 8 , 1974, and no extension of time 

was either requested by you or granted by the Council under section 

2411.45(d) of the Council's rules.

Accordingly, as your appeal was untimely filed, and apart from other considerations, your petition for review is denied.

By the Council.

Sincerely,

lenry B. Frazier III 

Executive Director

cc: P. Kete

National Council of OEO

Locals, Local 2677 123
Defense Contract Administration Services Region, St. Louis. Missouri, 

and American Federation of Government Employees. Local 1711 (Madden, 

Arbitrator). The xmlon appealed to the Council from the arbitrator's 

award in this case. Preliminary examination of the appeal reflected 

deficiencies in meeting various procedural requirements under the 

Council's rules. The union was notified of these deficiencies and 

was provided time to effect compliance with the rules. Further, 

the union was advised that failure to effect compliance would result 

in dismissal of the appeal. The union failed to complete the necessary actions within the time limit prescribed.

Council action (May 6 , 1974). The Council dismissed the appeal 

because of the failure to comply with the Council's rules of procedure .

t

FLRC NO. 74A-18

124
UNITED STATES

FEDERAL LABOR RELATIONS COUNCIL

1900 E STROEr. N.W. • WASHINGTON, D.C. 20415

May 6 . 197A

Mrs. Stasia L. McAvoy, President 

American Federation of Government 

Employees, AFL-CIO, Local 1711 

1809 West Woodbine Avenue 

Kirkwood, Missouri 63122

Re: Defense Contract Administration

Services Region, St. Louis, Missouri, 

and American Federation of Government 

Employees, Local 1711 (Madden, Arbitrator), 

FLRC No. 7AA-18

Dear Mrs. McAvoy:

By Council letter of April 12, 1974, you were advised that 

preliminary examination of your appeal reflected deficiencies in 

meeting various requirements of the Council's rules (a copy of 

which was sent to you for your information). The pertinent sections 

of the rules were indicated, namely, sections 2411.34, 2411.42, 

2411.46(a), and 2411.46(b), and the deficiencies were explained. In 

the letter.

You were also advised in the Council's letter:

Further processing of your appeal is contingent upon 

your Immediate compliance with the above provisions 

In the Council's rules. Accordingly, you are hereby 

granted until the close of business on April 26, 1974, 

to accomplish the required actions and file the statements prescribed. Failure to do so will result in the 

dismissal of your appeal.

You have made no submission showing accomplishment of the required 

actions, and you have not filed the statements prescribed, within 

the time limit provided therefor. Accordingly, your appeal is

125
hereby dismissed for failure to comply with the Council's rules of 

procedure.

For your convenience, the papers which you Initially filed In the 

case are returned herewith.

By the Council.

Sincerely,

Henry B./SPMsler III

Executlv(

Enclosure

126
FLRC n o . 74A-5

Veterans Administration Hospital, Butler, Pa., Assistant Secretary 

Case No. 21-3923 (RO). The Assistant Secretary upheld the Assistant 

Regional Director's denial of the request by Service Employees International Union Local 227 (SEIU) to intervene in a representation 

proceeding initiated by National Association of Government Enq>loyees 

concerning the unit for which SEIU was the incumbent labor organization. Ihe Assistant Secretary found that SEIU's request was untimely 

filed and that good cause was not shown for extending the period of 

timely intervention. Further, the Assistant Secretary found that 

SEIU's intervention request was not simultaneously served on all 

other interested parties as required by the Assistant Secretary's 

rules. SEIU appealed to the Council contending that the Assistant 

Secretary's decision presented a major policy issue or appeared 

arbitrary and capricious principally because: (1) SEIU's members 

were prevented from choosing SEIU as their exclusive representative; 

and (2 ) the incumbent should have a right to appear on the ballot 

without being required to intervene under the Order.

Coxmcil action (June 18, 1974). The Council held that no major policy 

issue was presented as SEIU had failed to advance any persuasive reason 

for overturning the Assistant Secretary's well established policy that 

incumbent unions must timely intervene in representation elections 

pursuant to the requirements of the Assistant Secretary's rules. 

Further, the Council held that the Assistant Secretary's decision 

does not appear arbitrary and capricious since the Assistant Secretary, 

relying upon an established policy reflected in his rules and published 

precedent, does not appear to have acted without reasonable justification in this case. Accordingly, the Coimcil denied review of SEIU's 

appeal under section 2411.12 of the Council's rules of procedure 

(5 CFR 2411.12).

127
UNITED STATES

FEDERAL LABOR RELATIONS COUNCIL

1900 E STREET, N.W. • WASHINQTON. O.C. 20415

June 18, 1974

Mr. George Hardy 

International President 

Service Employees International 

Union, AFL-CIO 

900 17th Street, NW.

Washington, D.C. 20006

Re: Veterans Administration Hospital, Butler. 

P a. , Assistant Secretary Case No. 21-3923 

(RO), FLRC No. 74A-5

Dear Mr. Hardy:

The Council has carefully considered your petition for review of the 

Assistant Secretary's decision and the opposition thereto filed by the 

National Association of Government Eknployees (NAGE) in the aboveentitled case.

The Assistant Secretary's decision upheld the Assistant Regional Director’s denial, as untimely filed, of the request by the Service Employees 

International Union (SEIU) Local 227 to intervene in the representation 

proceeding filed by NAGE concerning the unit for which Local 227 was the 

incumbent labor organization. The Assistant Secretary found, among 

other things, that: On September 7, 1973, simultaneously with the filing of its petition, NAGE served a copy on SEIU (by certified mail with 

return receipt) ; one week later the Area Administrator sent a letter of 

notice of the petition to the activity with simultaneous service on SEIU; 

and, on September 20, 1973, the official Department of Labor Notice of 

Petition was posted at the activity indicating, in accordance with section 

202.5 of the Assistant Secretary's rules, that any incumbent union must 

file a request to intervene within ten days of such posting. The 

Assistant Secretary further found that SEIU's request to intervene was 

not filed until October 25, 1973, i.e., beyond the permissible ten day 

period, and that good cause had not been shown for extending the period 

for timely intervention. Finally, the Assistant Secretary found that, 

besides having been untimely filed under his rules, SEIU's intervention 

request was not simultaneously served on all other interested parties 

as required by section 202.5(c) of the Assistant Secretary's rules.

In your petition for review you contend that the Assistant Secretary's 

decision presents major policy issues or is arbitrary and capricious

128
principally because: The Assistant Secretary’s policy requiring an 

incumbent union to timely intervene in a representation election in 

compliance with the rules of the Assistant Secretary works an unjust 

burden on SEIU*s members who are prevented in this case from choosing 

SEIU as their exclusive representative; since the election was of the 

type mentioned in section 10(d)(2) of the Order, i.e., to determine 

whether a labor organization should replace another labor organization 

as the exclusive representative, the incumbent union should appear on 

a ballot without being required to intervene; and, the Assistant 

Secretary’s enforcement of section 202.5 of his rules in this case 

nullifies the intent of section 10(d)(2) of the Order by taking away 

the employees’ right to choose between the incumbent union and the 

challenging union, and by denying employees their right under section 1

of the Order to assist any labor organization.

In the Council’s opinion, your petition for review does not meet the 

requirements for granting review under section 2411.12 of the Council’s 

rules; the decision of the Assistant Secretary neither appears arbitrary 

and capricious nor presents a major policy issue. Your appeal presents 

no persuasive reasons for overturning the Assistant Secretary’s well 

established policy that incumbent unions must timely intervene in 

representation elections pursuant to the requirements of the rules of 

the Assistant Secretary. Therefore, we conclude that the Assistant 

Secretary's decision does not present a major policy issue. Further, 

with respect to your contentions that the decision of the Assistant 

Secretary appears arbitrary and capricious, it does not appear that he 

acted without reasonable justification in the circumstances of this 

case. Instead, the Assistant Secretary relied upon an established policy 

reflected in his rules and in a previously published Report on a Ruling. 

(Report No. 43.)

Since the Assistant Secretary’s decision does not appear arbitrary and 

capricious and does not present a major policy issue, your petition 

fails to meet the requirements for review as provided in section 2411.12 

of the Council’s rules of procedure. Accordingly, review of your appeal 

is hereby denied.

By the Council.

Sincerely,

azier l l j

Director

cc: A/SLMR

Dept, of Labor

A. J. Whitney 

NAGE

P. A. Kennedy

VA 129
Department of Defense, National Guard Bureau. Texas Air National 

Guard, A/SLMR No. 336. The Assistant Secretary dlsmlss^ed a complaint filed by Texas Air National Guard Council of Locals, American 

Federation of Government Employees, AFL-CIO (AFGE), which alleged 

that the agency’s denial of an employee's request for union representation at "counseling sessions," and its denial of the employee's 

reenlistment in the Texas Air National Guard which resulted in the 

employee's loss of civilian Guard employment, violated section 

19(a)(1), (2) and (6 ) of the Order. The Assistant Secretary found 

that the evidence did not establish the "counseling sessions" were 

"formal discussions" within the meaning of section 1 0 (e), and that 

the denial of union representation did not violate section 19(a)(6) 

or 19(a)(1). As to the alleged discriminatory denial of reenllstment, the Assistant Secretary found that the employee had used 

the Guard's appeals procedure, including the final step thereof, 

in which the employee had the opportunity to raise the issue of 

such alleged discrimination, but failed to do so; and that the 

Assistant Secretary was thereby precluded from determining the 

issue here involved in the context of an unfair labor practice proceeding under section 19(d) of the Order ("Issues which can be 

properly raised under an appeals procedure may not be raised under 

this section.").

AFGE appealed to the Council, alleging that the Assistant Secretary's 

decision presents a major policy issue and appears arbitrary and 

capricious, principally because the "counseling sessions" were in 

effect grievance or adverse action procedures at which the employee 

was entitled to union representation; no proper basis existed for 

invoking section 19(d); and the Assistant Secretary's decision is 

unsupported by facts or reason and ignores applicable precedents. 

Separately, National Treasury Employees Union (NTEU) filed a petition for review and request for stay as amicus curiae.

Council actions (June 18, 1974). As to AFGE's appeal, the Council 

found that the Assistant Secretary's decision does not appear arbitrary and capricious, since it does not appear that the Assistant 

Secretary acted without reasonable justification in his decision. 

Further, the Council held that, in the circumstances presented, 

the Assistant Secretary's determination (namely, that denial of 

representation at the particular "counseling sessions" involved, 

which were not "formal discussions" within the meaning of section 

10(e), did not interfere with any rights accorded under the Order) 

does not present a major policy issue warranting Council review.

Also, the Council ruled that the Assistant Secretary's conclusion 

under section 19(d) that he lacked jurisdiction to determine in an 

unfair labor practice proceeding the issue of discriminatory denial 

of reenlistment which could have been raised under the Guard appeals

FLRC NO. 74A-11

130
procedure clearly reflects the plain language of 19(d) and thus 

presents no major policy issue. Accordingly, the Council denied 

review of AFGE's appeal pursuant to section 2411.12 of the Council's 

rules (5 CFR 2411.12).

As to NTEU's appeal, the Council denied consideration of NTEU's petition for review and request for stay since such submissions may be 

made only by a "party" to the case as defined in section 2411.3(c)(1) 

of the Council's rules (5 CFR 2411.3(c)(1)), and NTEU failed to 

meet the requirements of that definition. Further the Council 

noted that such submissions may not be filed by an amicus curiae 

under section 2411.49 of the Council's rules (5 CFR 2411.49) which 

provides only for the filing of briefs and oral argument.

131
/ 1 FEDERAL LABOR RELATIONS COUNCIL

^>- i / 1900 E STREET, N.W. • WASHINGTON. B.C. 20415

‘y

June 18, 1974

\ UNITED STATES

Mr. Dolph David Sand 

Staff Counsel

American Federation of Government 

Employees, AFL-CIO 

1325 Massachusetts Avenue, NW.

Washington, D.C. 20005

R e : Department of Defense, National Guard 

Bureau, Texas Air National Guard,

A/SLMR No. 336, FLRC No. 74A-11

Dear Mr. Sand:

The Council has carefully considered your petition for review of the 

Assistant Secretary's decision, and the agency's opposition thereto, 

filed in the above-entitled case.

The Assistant Secretary dismissed a complaint filed by the Texas Air 

National Guard Council of Locals, American Federation of Government 

Employees, AFL-CIO, which alleged violations of sections 19(a)(1),

(2) and (6) of the Order by reason of the agency's denial of employee 

James Burgamy's requests for union representation at "counseling 

sessions"; and its denial of Burgamy's reenlistment in the Texas Air 

National Guard, assertedly because of union activities and his filing 

of grievances, thereby resulting, under applicable statutes, in 

Burgamy's loss of civilian employment in the National Guard. The 

Assistant Secretary found that the evidence did not establish that 

the "counseling sessions" in question were "formal discussions" concerning grievances, personnel policies and practices, or working 

conditions within the meaning of section 10(e) of the Order at which 

the exclusive representative was entitled to be represented by virtue 

of section 10(e). Consequently, he determined that the agency's 

denial of union representation at the "counseling sessions" did not 

constitute a violation of section 19(a)(6). He also determined that 

the agency's denial of such representation did not interfere with 

any rights accorded Burgamy under the Order and therefore did not 

constitute a violation of section 19(a)(1). With respect to the denial of Burgamy's military reenlistment, the Assistant Secretary 

found that Burgamy had utilized the Texas Air National Guard's 

appeals procedure, including utilization of the final step of such 

procedure, an appeal to the Adjutant General of the Texas Air National

132
Guard. As for Burgamy's allegation that he had been denied reenlistment for discriminatory or other improper reasons under the Order, 

the Assistant Secretary found that the evidence established that 

Burgamy had the opportunity to raise the issue of such alleged discrimination under the Texas Air National Guard's appeals procedure, but 

failed to do so. Thus, the Assistant Secretary concluded under section 

19(d), which states in pertinent part that "Issues which can be properly raised under an appeals procedure may not be raised under this 

section," that the Assistant Secretary was precluded from determining 

in the context of an unfair labor practice proceeding whether Burgamy 

was, in fact, denied reenlistment for discriminatory reasons.

In your petition for review, you contend that the Assistant Secretary's 

decision presents a major policy issue and is arbitrary and capricious, 

principally because, as you allege: The "counseling sessions" were, 

in effect, part of a grievance or an adverse action procedure and the 

Federal Personnel Manual guarantees an employee the right to present 

an appeal or grievance accompanied, represented and advised by a 

representative of his choice at any stage of the proceedings; Burgamy 

was not given an opportunity to present his arguments that he had been 

denied reenlistment for discriminatory or other improper reasons, and 

moreover, the Texas Air National Guard appeals procedure applies to 

military, and not civilian matters, thus providing no proper basis 

for invoking section 19(d) of the Order; and, the Assistant Secretary's 

decision is not supported by facts or reason and ignores his prior 

decisions.

In the Council's opinion, your appeal does not establish any basis for 

review under the Council's rules, i.e., the Assistant Secretary's 

decision does not present a major policy issue nor does it appear 

arbitrary and capricious. With regard to your contentions concerning 

matters relied upon by the Assistant Secretary in his determinations, 

it does not appear that the Assistant Secretary acted without reasonable justification in his decision. As to the alleged major policy 

issues, the Council is of the opinion that in the circumstances presented the Assistant Secretary's determination, that denial of representation at these particular "counseling sessions" which were not 

"formal discussions" within the meaning of section 10(e) of the Order 

did not interfere with any rights accorded under the Order, does not 

present a major policy issue warranting Council review in this case. 

Furthermore, the Assistant Secretary's conclusion under section 19(d) 

that he lacked jurisdiction to determine in an unfair labor practice 

proceeding, the issue of discriminatory denial of reenlistment which 

could have been raised under the Texas Air National Guard appeals procedure clearly reflects the plain language of section 19(d), as 

previously set forth. Thus no major policy issue is presented by this 

determination of the Assistant Secretary.

133
Since the Assistant Secretary's decision does not appear arbitrary 

and capricious and does not present a major policy issue, your 

appeal fails to meet the requirements for review as provided in 

section 2411.12 of the Council's rules of procedure. Accordingly, 

your petition for review is denied. Likewise, your request to 

present oral argument is denied under section 2411.48 of the Council's 

rules of procedure.

By the Council.

Sincerely,

Frazier 

E x e c u t W e Director

c c : A/SLMR

Dept, of Labor

D. W. Pace

Texas Air National Guard

134
CORRECTED COPY

UNITED STATES

FEDERAL LABOR RELATIONS COUNCIL

M ' 1900 E STREET, N.W. • WASHINGTON, D.C. 20415

June 18, 1974

*', .v ^ -> 'C .\

m S '

Mr. Robert M. Tobias

National Treasury Employees Union

1730 K Street, NW.

Washington, D.C. 20006

Re: Department of Defense. National Guard Bureau, 

Texas Air National Guard. A/SLMR No. 336,

FLRC No. 74A-11

Dear Mr. Tobias:

Reference is made to your petition for review and request for stay of 

the Assistant Secretary's decision, filed by the National Treasury 

Eiaployees Union (NTEU), as amicus curiae in the above-entitled case.

Under section 2411. 13(a) of the Council's rules of procedure, a petition 

for review of a decision of the Assistant Secretary may be filed only 

by the respective "parties" to the case before the Council. Likewise, 

under the clear intent of section 2411.47 of the rules, only the respective "parties" to the case may file a request for stay of the Assistant 

Secretary's decision.

The term "party" is defined in section 2411.3(c)(1) of the Council's 

rules, as follows:

(c) 'Party' means any person, employee, labor organization, 

or agency that participated as a party—

(1) In a matter that was decided by the Assistant Secretary 

under Section 6 of the Order. . . .

The Assistant Secretary has defined the term "party" for purposes of 

relevant matters before him, as follows (sec. 201.21 of Assistant 

Secretary rules):

'Party' means any person, employee, group of employees, labor 

organization, agency,;or activity: (a) Filing a complaint, 

petition, request, or application; (b) named in a complaint, 

petition, request, or application; or (c) whose intervention in 

a proceeding has been permitted or directed by the Assistant 

Secretary, Regional Administrator, Area Administrator, Director, 

Hearing Officer, Chief Administrative Law Judge, or Administrative 

Law Judge, as the case may be.

135
In this case AFGE was the complainant and Texas Air National Guard was 

the respondent and no intervention was permitted or directed by the 

Assistant Secretary or his representatives in the proceeding before 

him. Consequently, it does not appear from the Assistant Secretary's 

decision that your organization participated as a "party" in the matter 

before him, within the meaning of that term as defined in the Assistant 

Secretary's rules. Accordingly, your organization is not a "party" to 

the instant case before the Council, under section 2A11.3(c)(1) of the 

Council's rules, and is not entitled to file a petition for review, 

under section 2411.13(a), or a request for stay, under section 2411.47 

of the rules.

Therefore, the Council must deny consideration of your amicus curiae petition for review and request for stay. Moreover, section 2411.49 of 

the Council's rules provides only for the filing of briefs and oral 

arguments by amicus curiae.

In this regard, on this same date, the parties to the above-entitled 

case are being notified that the Council has denied AFGE's petition for 

review. (A copy of the Council's letter in this regard is enclosed for 

your information.)

By the Council.

Sincarely,

Henry B. 'Srazier III 

Executive Director

Enclosure

c c: A/SLMR

Dept, of Labor

D. W. Pace

Texas Air National Guard

D. D. Sand 

AFGE

136
Federal Employees Metal Trades Council of Charleston and Charleston 

Naval Shipyard« Charleston, South Carolina. The negotiability 

dispute involved two management proposals concerning discussions 

between management officials and individual unit employees, which 

the agency head determined to be negotiable. A question was also 

raised in the union's appeal to the Council as to the validity of 

a provision in agency regulations dealing with informal discussions 

between an employee and a supervisor (DOD Directive 1426.1, section 

Vil B,3.b.).

Council action (June 21, 1974). The Council found, contrary to the 

union’s contentions, that the management proposals are not violative 

of section 10(e) of the Order since: (1) The disputed language of 

the proposals, as tacitly conceded by the union, pertains only to 

"informal" discussions which are outside the limitations of section 

lOCe): anH (’2') the difference in treatment which would be accorded 

temnorary and probationary employees, as distinguished from career/ 

career-conditional employees, in one of the proposals, does not constitute "discrimination" within the meaning of section 1 0 (e). 

Accordingly, the Council sustained the agency h e a d’s determination 

that the proposals are negotiable.

As to the alleged invalidity of the provision in agency regulations, 

the Coxincil found that the regulations were not expressly or impliedly 

invoked by the agency head with respect to a proposal in his negotiability determination and, therefore, the validity of the regulations 

is not properly before the Council in this proceeding under section 

11(c) of the Order.

FLRC NO. 73A-6

137
UNITED STATES 

FEDERAL LABOR RELATIONS COUNCIL 

WASHINGTON, D.C. 20415

Federal Enq)loyees Metal 

Trades Council of Charleston

and FLRC No. 73A-6

Charleston Naval Shipyard 

Charleston, South Carolina

DECISION ON NEGOTIABILITY ISSUES

Background of Case

The Federal Employees Metal Trades Council of Charleston represents 

wage grade employees at the Charleston Naval Shipyard. In connection with the parties' negotiations, the activity proposed articles 

(detailed hereinafter) dealing with a management-conducted "preliminary investigation" and "informal investigative discussion" in 

regard to deciding whether to take formal disciplinary action 

against an employee (Article 16, Section 1); eind, management rights, 

including the right "to hold private, informal discussions with 

individual employees of the unit" (Article 2, Section 1).

The union asserted the activity's proposals were nonnegotiable and 

referred the question to the agency for determination, claiming, 

in addition, that a provision contained in published agency 

regulations (DOD Directive 1426.1, section VII B.3.b.) dealing 

with informal discussions between an employee and a supervisor 

violates the Order.

The Department of Defense (DOD) upheld the activity, determining 

that both management proposals are negotiable. In addition, DOD 

found no conflict between the cited provision of agency regulations 

and the Order.

The union petitioned the Council to review the agency's determination under section 11(c) of the Order. Thereafter, DOD filed 

a statement of position in support of its determination.^^

j./ DOD earlier moved to dismiss the petition on grounds that the 

petition failed to meet the requirements for review prescribed by 

the Order and the Council's rules of procedure, in that "the agency

(Continued)

138
The issues raised with respect to the management proposals and the 

agency regulation will be discussed separately, below.

1 . The management proposals. The memagement proposals provide as 

follows (underscoring in body indicates specific provisions in 

dispute):

Article 16, Section 1

Prior to initiating a formal disciplinary action 

such as letters of reprimand or suspension of 30 

calendar days or less against an employee, a preliminary investigation will be made by the immediate 

supervisor or other management official to document 

the facts and to determine whether a prima facie 

case exists. This preliminary investigation will 

normally include a private discussion with the 

employee if he is in a duty status. If the findings 

of the preliminary investigation indicate that 

formal disciplinary action may be warranted, an 

informal investigative discussion will be held with 

the employee if he is other than a temporary or 

probationary employee, prior to issuance of a proposed disciplinary action. If the employee so 

desires he may have a fellow employee present at 

this discussion.

Article 2, Section 1

The rights, functions, and authority of Management are 

vested in Management officials. Included, but not 

limited thereto, are the following:

a. To direct enq)loyees of the Shipyard.

b. To hire, promote, transfer, assign, and retain 

employees in positions within the Shipyard, 

and to suspend, demote, discharge, or take 

other disciplinary action against enq)loyees.

Opinion

(Continued)

has not made a determination that a proposal is nonnegotiable." The 

Council ruled that review of the negotiability dispute would be consistent with the underlying purpose of the Order and the Council's 

rules of procedure ajid denied DOD's motion.

139
c. To relieve enqployees from duties because of 

lack of work or other legitimate reason.

d. To maintain the efficiency of the Government 

operations entrusted to Management,

e. To determine the methods, me a ns » and personnel 

by which such operations are to be conducted.

f. To take whatever actions may be necessary to 

carry out the mission of the Shipyard in 

situations of emergency as determined by 

Management.

The foregoing shall apply to all supplemental implementing 

and subsidiary or informal gigreements between Management 

and Council. Further, to avoid possible misunderstandings 

with respect to other provisions of this agreement 

Management has the right to hold private, informal discussions with individual employees of the unit. Management 

agrees that it will not attempt to use these discussions 

to negotiate individually with employees.

The union principally contends that the language contained in both 

proposals, as set forth and underscored above, insofar as it 

provides for private discussions between management officials 

and individual unit employees, violates section 1 0 (e) of the 

Order— because:

2 / Section 1 0 (e) of the Order provides:

(e) When a labor organization has been accorded exclu'sive 

recognition, it is the exclusive representative of employees in the unit and is entitled to act for and to 

negotiate agreements covering all employees in the unit.

It is responsible for representing the interests of all 

employees in the unit without discrimination and without regard to labor organization membership. The labor 

organization shall be given the opportunity to be 

represented at formal discussions between management and 

employees or employee representatives concerning grievances, 

personnel policies and practices, or other matters affecting 

general working conditions of employees in the unit.

140
. , .L w ^ h e n Management schedules preliminary or 

Informal investigative discussions which may lead 

to disciplinary action which is grievable under 

the Negotiated Grievance Procedure against employees in the Unit, the employee has an established right to be represented by the exclusive 

representative during such discussions. Since 

the exclusive representative is clothed with 

the responsibility of 'acting for' and representing 'the interest' of all employees in the 

Unit, the exclusive representative has the right 

to be in attendance at such discussions.!/

We cannot agree with the union's contentions. Section 1 0 (e), 

as previously set forth, expressly qualifies the union's right 

to be represented by limiting it to "formal” discussions. The 

language of the proposals in dispute, as tacitly conceded by 

the union, calls only for "informal" discussions, and the union 

does not claim or seek to establish that such discussions could 

be characterized in any manner as being "formal." Hence, the 

proposals clearly are not proscribed by section 1 0 (e) of the 

Order.

The union additionally asserts in its appeal to the Council, as 

violative of section 10(e) of the Order, the provision contained 

in the proposed Article 1 6 , Section 1 , which would accord temporary and probationary enq)loyees different treatment from that 

accorded to career/career-condltlonal employees for purposes of 

informal investigative discussions.^/ More specifically, the 

union argues that section 1 0 (e) requires it to represent the

3/ The union also contends the proposals violate sections 1(a), 

12(b) and 19(a)(1) of the Order. But the union advanced no 

persuasive reasons to support its contentions. Hence, we find 

these unsupported claims to be without merit.

4/ The disputed language of Article 1 6 , Section 1 in this 

regard, as previously set forth, states:

If the findings of the preliminary Investigation indicate 

that formal disciplinary action may be warranted, an Informal investigative discussion will be held with the 

employee if he is other than a temporary or probationary 

enqployee, prior to issuance of a proposed disciplinary 

action.

141
interests ot all employees in the unit without discrimination and, 

in effect, that the proposed provision would cause the union to 

discriminate against the interests of temporary and probationary 

employees by denying the latter a right accorded to other types of 

employees.

The agency, noting that this issue was raised for the first time 

by the union in its petition for review, contends in its statement of position that no applicable authority would prohibit 

different treatment for different classes of employees, and that 

the proposed provision is negotiable.

i^art from the question of the timeliness of the union's contention,—^ we find without merit the union's assertion that the 

proposal constitutes "(Jiscrimination" within the meaning of 

section 10(e) of the Order. Section 10(e) states that a labor 

organization which has been accorded exclusive recognition is 

responsible for representing the interests of all employees in 

the unit without discrimination. In the Council's view the 

discrimination proscribed by section 1 0 (e) encompasses a union's 

according different rights within like classes of employees in 

the bargaining unit. But we cannot agree that section 10(e) 

means that every employee in the unit must be accorded precisely 

the same rights by each provision of the negotiated agreement.

For such a construction of section 10(e), as advanced by the union, 

would unrealistically prevent parties fashioning an agreement 

from taking account of the significant variations of tenure and 

status incident to different employment categories under Civil 

Service Commission regulations.

Applying the foregoing to the instant case, the provision claimed 

by the union to be Improperly discriminatory concerns employees 

in the "temporary" and "probationary" categories whose employment 

rights are essentially different under Civil Service Commission 

regulations from those of "career" and "career-conditional"

5/ Section 2411,51 of the Council's rules of procedure provides 

in pertinent part that:

Consistent with the scope of review set forth in this 

part, the Council will not consider . . . any issue, 

which was not presented in the proceedings before . . . 

an agency head ....

142
employees. For example, as a general rule, the employment of 

employees in the former categories may be terminated upon 

written notice, without benefit of the adverse action procedural protection which must be accorded to employees in the 

latter categories.

In our opinion, the parties may take such differences in the 

basic terms and conditions of particular types of employment 

into consideration when fashioning their agreements, without 

thereby engaging in proscribed discrimination under section 

10(e). Accordingly, in the circumstances presented by the 

case at hand, we find no merit in the union’s contention that 

the proposed provision violates section 10(e) of the Order.

In summary, based on the foregoing, we conclude that the management proposals are negotiable matters.

2. The agency regulation. As previously indicated, the union 

contends that DOD Directive 1426,1, Section VII B.3,b, violates 

the Order.

Section 1 1 (c) of the Order provides for appeal to the Council as 

to the validity of an agency regulation only if such regulation 

is expressly or impliedly invoked by the agency head with respect 

to a proposal. Here, the regulation in question was not so 

invoked «ind, therefore, without ruling on the substance of the 

union’s contention, we find that no issue is properly before the 

Council concerning DOD Directive 1426.1, Section VII B.3.b,, in 

this proceeding.

Conclusion

In conclusion, we find that management's proposals (Article 1 6 , 

Section 1 and Article 2 , Section 1 ) are negotiable under the 

Order. Accordingly, pursuemt to section 2411.27 of the Council's 

rules of procedure, the agency head's determination is sustained. 

This decision shall not be construed as expressing or implying

6 / See Federal Personnel Manual 315.8-4 and 316.4-2.

143
any opinion of the Council as to the merits of the proposals. We 

decide only that, as submitted and based on the record before us, 

the proposals are properly subject to negotiation by the parties 

under section 11(a) of the Order.

By the Council.

Henry B 

Executi

Issued: June 21, 1974

144
Professional Air Traffic Controllers Organization and Federal Aviation 

Administration. Department of Transportation (Britton, Arbitrator).

The question before the arbitrator was whether a letter of warning 

issued to the individual grievant, after a ’’system deviation,” 

violated the provision in the bargaining agreement that, in the 

event of ”a difference in professional opinion between the employee 

and the supervisor," the employee shall comply with the supervisor's 

instructions and the supervisor shall be responsible for his own 

decision. The arbitrator found that the "system deviation" occurred 

contemporaneously with the supervisor’s denial of several requests 

for assistance by the grievant; that there was a "difference in 

professional opinion" between the grievant and supervisor within 

the meaning of the agreement; that the grievant complied with 

the supervisor's instructions; that the requests for assistance 

were legitimate and bona fide, and the grievant was not shown to 

have acted negligently or carelessly; and that the letter of warning thereby violated the agreement. The agency excepted to the 

arbitrator's award, alleging in effect that (1 ) the opinion on which 

the award is based violates section 12(b) of the Order; and (2) the 

arbitrator misinterpreted the subject provision of the agreement, 

and as so interpreted and applied in the award, this provision 

violates section 12(b) of the Order.

Council action (June 21, 1974)- The Council determined that, with 

regard to the first exception, it did not appear from the facts and 

circumstances described in the petition that the award violates 

the Order; and as to the second exception, the petition further did 

not state a ground upon which review of an arbitrator's award will 

be granted. The Council therefore denied review of the agency's 

petition because it failed to meet the standards set forth in 

section 2411.32 of the Council's rules of procedure (5 CFR 2411.32). 

Likewise, the agency's request for a stay was denied under section 

2411.47(d) of the Council's rules (5 CFR 2411.47(d)).

F LRC n o . 74A-1

145
..-.i

i& !>"ii

UNITED STATES

FEDERAL LABOR RELATIONS COUNCIL

1900 E STREET, N.W. • WASHINGTON. D.C. 20415

June 21, 1974

Mr. R. J. Alfultis 

Director of Personnel and 

Training 

Office of the Secretary 

Department of Transportation 

Washington, D.C. 20590

Re: Professional Air Traffic Controllers 

Organization and Federal Aviation 

Administration, Department of 

Transportation (Britton, Arbitrator), 

FLRC No. 74A-1

Dear Mr. Alfultis:

The Council has carefully considered your petition for review of the 

arbitrator's award, and the union's opposition thereto, in the 

above-entitled case.

In his decision, the arbitrator found that during the tour of duty 

here involved, while the grievant air traffic controller was 

assigned to work two positions, the grievant determined that he was 

so busy that he needed assistance. Therefore, during the ensuing 

ten to fifteen minutes, he made several requests for assistance, 

but these requests were denied by the supervisor in charge. Contemporaneously, the grievant failed to take certain actions with regard 

to an aircraft in the airspace under his control which resulted in 

a "system deviation", i.e., a situation wherein the potential for a 

mid-air collision was created due to an aircraft being in a place 

where it should not have been. The agency's investigation of the 

incident resulted in a determination that the grievant's "failure 

to complete the required coordination . . . was a direct cause of 

the deviation." The grievant received a Letter of Warning from the 

facility chief and, shortly thereafter, filed a grievance alleging 

that the issuance of the Letter of Warning violated Article 55, 

Section 1 of the negotiated agreement.!/ The parties submitted the 

grievance to arbitration under the agreement.

1/ 55, Section 1 of the agreement provides as follows

Article 55 - Controller Performance

Section 1 . In the event of a difference in professional 

opinion between the employee and the supervisor, the

(Continued)

146
The arbitrator determined that, within the moaning of Article 55, 

Section 1 , there had been "a diffcronco in professional opinion*' 

between the grievant and the supervisor; the grievant had complied 

with the supervisor's instructions; and thus, the agency violated 

Article 55, Section 1 by issuing the Letter of Warning holding the 

grievant responsible for the "system deviation." The arbitrator 

therefore sustained the grievance and directed the agency to remove 

the Letter of Warning from the grievant*s file.

Under section 2411.32 of the Council's rules of procedure, review 

of an arbitrator's award will be granted "only where it appears, 

based upon the facts and circumstances described in the petition, 

that the exceptions to the award present grounds that the award 

violates applicable law, appropriate regulation, or the order, or 

other grounds similar to those upon which challenges to arbitration 

awards are sustained by courts in private sector labor-management 

relations."

The agency excepts to the award on two grounds, i.e., (1 ) the 

opinion upon which the award is based violates section 12(b)(5) 

of the Order;— and (2 ) the arbitrator misinterpreted Article 55, 

Section 1 of the agreement.

As to (1), the agency claims in substance that the decision will 

result in supervisors being "inhibited in their decisions on proper 

steifflng levels because a decision at odds with a controller's 

assessment of the work situation carries with it a grsmt of immunity;"

(Continued)

employee shall comply with the instructions of the supervisor 

and the supervisor shall assume responsibility for his own 

decisions.

2/ Section 12(b)(5) of the Order provides as follows:

(b) management officials of the agency retain the right, in 

accordance with applicable laws and regulations--

(5 ) to determine the methods, means, and personnel by which 

such operations are to be conducted. . . .

147
and, that Implementation of the decision will authorize employees to 

participate In determining the personnel who will conduct agency 

operations and directing their own work, matters reserved to management by section 12(b) of the Order.

As to (2), the agency claims that the "professional opinion" referred 

to In Article 55, Section 1 pertains only to controllers performance 

and not to personnel assignments or staffing. In this regard, the 

agency asserts. In effect, that as Interpreted and so applied by the 

Arbitrator, Article 55 conflicts with management’s retained rights 

under section 12(b)(5) of the Order.

For the reasons which follow. It Is the Council's view that the agency's 

petition does not meet the requirements for review prescribed In 

section 2411.32 of the Council's rules of procedure.

With regard to the first exception. It does not appear from the facts 

and circumstances presented that the arbitrator's findings and decision, 

as previously set forth. Infringe on rights reserved to management by 

the Order. Clearly, the arbitrator did not purport to authorize 

employees to participate In management decisions on personnel assignment and workload matters. Rather, he was concerned only with applying 

Article 55 of the parties' agreement which he interpreted as fixing 

responsibility for the consequences of such decisions once made by 

management.

As to the agency's contention that, as a result of the arbitrator's 

decision, supervisors will be inhibited in making decisions on 

proper staffing levels, such a claim is merely speculative in nature.

In any event, inhibition of supervisors would not follow simply as 

the result of a supervisor's assuming responsibility for his decision 

under Article 55. Rather, it would result from a concern by the 

supervisor as to the consequences of such responsibility, e.g., disciplinary action against him. Thus, the causal factors relating to 

the claimed inhibition are matters under the control of agency management, and do not establish a violation of section 1 2 (b)(5 ).

tforeover, the agency's claim in this regard, that a supervisor's 

decision at odds with a controller's "professional opinion" will 

confer immunity on the controller, finds no support in the arbitrator's 

decision. On the contrary, the arbitrator explicitly states in his 

decision that he does not interpret Article 55 as absolutely shielding 

a controller from discipline. Thus, the arbitrator states in his 

award as follows:

This is not to say that Article 55 creates absolute immunity,

regardless of the facts of the case, the degree of culpability.

148
or the magnitude of the error, for a controller once he 

renders a professional opinion. For example, if a controller's negligence or carelessness is the casually [sic] 

related factor in a mid-air collision. Article 55 would 

not protect a controller who has rendered a 'professional 

opinion' in the case, and who seeks to shield himself from 

discipline. Here, however, only the facts of this case 

are of concern to the Arbitrator, i.e., Mr. Kennedy's 

actions versus those of Mr. Clarke. As to this, there is 

no convincing evidence in the record that Mr. Kennedy 

acted negligently or carelessly. To the contrary, his 

'professional opinion', upon recognizing the dangers of 

his too-busy workload, and requesting assistance, is shown 

to have been legitimate and bona fide, and in the considered judgment of the Arbitrator should therefore be 

upheld.

Accordingly, the agency's first exception that the award violates the 

Order does not appear to be supported by the facts and circumstances 

described in the agency's petition, as required by section 2411.32.

The second exception, as already mentioned, alleges that the arbitrator 

misinterpreted Article 55, Section 1 of the agreement and, as interpreted and so applied in his award, this section violates section 1 2 (b) 

of the Order. In the private sector, courts have consistently held 

that the interpretation of contract provisions is a matter to be left 

to the arbitrator's judgment. See, e.g.. United Steelworkers of 

America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 599 (1960).

This principle regarding the interpretation of negotiated provisions 

is likewise applicable in the Federal sector under section 2411.32 of 

the Council's rules of procedure. American Federation of Government 

Employees Local 12 and U.S. Department of Labor (Daly, Arbitrator),

FLRC No. 72A-55 (September 17, 1973), Case Report No. 44. This does 

not mean, of course, that an arbitrator's interpretation of an agreement provision need not be consistent with applicable law, appropriate regulation or the Order. For where it appears, based upon the 

facts and circumstances described in a petition that there is support 

for a contention that an arbitrator has interpreted an agreement 

provision in a manner which results in the award violating applicable 

law, appropriate regulation or the Order, the Council, under its rules, 

will grant review of the award. Here, as previously discussed, it 

does not appear that the arbitrator's interpretation of Article 55 

has resulted in an award which violates the Order. Moreover, the 

agency does not allege and it does not appear that the award violates 

applicable law or appropriate regulation. Therefore, the agency's 

second exception does not state a ground upon which review of an 

arbitrator's award may be granted under section 2411.32 of the Council's 

rules of procedure.

149
Accordingly, the agency’s petition for review Is denied because It 

falls to meet the standards for review set forth In section 2411.32 

of the Council’s rules. Likewise, the agency's request for a stay 

Is denied under section 2411.47(d) of the Council’s rules.

By the Council.

Sincerely,

Henry Bj 

Executlt

Frfazler III /

Irector

cc: W. B. Peer 

PATCO

150
Department of Agriculture, Office of Information Systems, Kansas 

City, Missouri, A/SLMR No. 387- National Federation of Federal 

Employees (NFFE) appealed to the Council from the Assistant Secretary's 

finding that the record in the subject case is Inadequate to determine the appropriateness of the unit sought by NFFE, and his remand 

to the Assistant Regional Director to secure additional evidence in 

this regard. NFFE further requested a stay of the Assistant 

Secretary's decision and remand.

Council action (June 24, 1974). The Council denied review of NFFE’s 

Interlocutory appeal, without prejudice to the renewal of its contentions in a petition duly filed with the Council after a final 

decision on the entire case by the Assistant Secretary. The Council 

likewise denied NFFE’s request for a stay.

FLRC n o . 74A-37

151
UNrfEDSrATEI

FEDERAL LABOR RELATIONS COUNCIL

IfOO E smtcr, N.W. • W/WHINeTDN. DA 2M1S

June 24, 1974

M s . Janet Cooper 

Staff Attorney 

National Federation of 

Federal Employees 

1737 H Street, NW. 

Washington, D.C. 20006

R e : Department of Agriculture, Office of

Information Systems, Kansas City, Missouri, 

A/SLMR No. 387, FLRC No. 74A-37

Dear Ms. Cooper;

Reference is made to your petition for review, and your request for 

stay, of the Assistant Secretary's decision and remand in the aboveentitled representation case.

The Assistant Secretary found the record in the subject case does not 

provide an adequate basis to determine the appropriateness of the 

unit sought by your organization fmd remanded the case to the 

Assistant Regional Director in order to secure additional evidence in 

this regard. No final disposition was therefore rendered by the 

Assistant Secretary in the case.

Section 2411.41 of the Council's rules of procedure prohibits interlocutory appeals. That is, the Council will not consider a petition 

for review of an Assistant Secretary's decision until a final decision 

has been rendered on the entire proceeding before him, as pertains to 

the appellant. More particularly, in a case such as here involved, 

the Council will entertain an appeal only after a certification of 

representative or of the results of the election has issued, or after 

other final disposition has been made of the entire representation 

matter, by the Assistant Secretary.

Since a final decision has not been so rendered in the present case, 

and apart from other considerations, the Council has directed that 

your appeal be denied, without prejudice to the renewal of your

152
contentions in a petition duly filed with the Council after a final 

decision on the entire case by the Assistant Secretary. Your 

further request for stay pending decision on your appeal is therefore likewise denied.

By the Council.

Sincerely, __ -

Henry B.V^frazier III 

Executive Director

cc: A/SLMR

Dept, of Labor

J. Tosino 

Agriculture

153
Department of Health, Education, and Welfare, Social Security 

Administration, New York Payment Center. Flushing, New York, Assistant 

Secretary Case No. 30-5150 (GP). The Assistant Secretary, upholding 

the Regional Administrator, determined that the conduct which the 

activity sought to grieve (alleged interference by American Federation 

of Government Employees Local 1760 with the activity's right to discipline supervisors) is subject to the grievance procedure in the 

parties' existing agreement. The union appealed to the Council 

alleging that the Assistant Secretary's decision presents a major 

policy issue, principally because the decision "violates the employees 

right of free speech as guaranteed by the Constitution, the LloydLaFollette Act and section 1(a) of the Executive Order."

Council action (June 28, 1974). The Council determined that the 

Assistant Secretary's decision did not present a major policy issue 

because the union petition failed to demonstrate that the decision 

has in any manner violated the rights of employees under the Order, 

the Constitution, or the Lloyd-LaFollette Act. In this connection, 

the Council noted that the Assistant Secretary's decision is limited 

to the threshold determination that the grievance is subject to the 

negotiated grievance procedure; and that neither the Assistant 

Secretary nor the Council has considered or passed upon the merits 

of the grievance, which is left to subsequent determination under 

the negotiated grievance procedure. The Council further determined that the petition neither alleged, nor did it appear, that 

the Assistant Secretary's decision was arbitrary and capricious. 

Accordingly, the Council denied review of the union's appeal pursuant to section 2411.12 of the Council's rules of procedure 

(5 CFR 2411.12). The Cotmcil likewise denied the union's request 

for stay pursuant to section 2411.47(e) of the Council's rules 

(5 CFR 2411.47(e)).

FLRC NO. 74A-10

154
f . ^

UNITED STATES

FEDERAL LABOR RELATIONS COUNCIL

1900 E STREET. N.W. • WASHINGTON. D.C. 20415

June 28, 1974

Mr. Clyde M. Webber 

National President 

American Federation of Government 

Employees, AFL-CIO 

1325 Massachusetts Avenue, NW. 

Washington, D.C. 20005

Re: Department of Health, Education, and Welfare, 

Social Security Administration, New York 

Payment Center, Flushing, New York, Assistant 

Secretary Case No. 30-5150 (GP), FLRC No. 

74A-10

Dear Mr. Webber:

The Council has carefully considered your petition for review of the 

Assistant Secretary's decision in the above-entitled case, and the 

agency's opposition thereto.

The Assistant Secretary denied your request to set aside the Regional 

Administrator's report and finding that the matter In dispute between 

the activity and American Federation of Government Employees (AFGE) 

Local 1760 is subject to the grievance procedure In the existing agreement. The Assistant Secretary found that the conduct which the activity sought to grieve (alleged interference by AFGE Local 1760 with the 

activity's right to discipline supervisors) "is a matter which comes 

within the scope of Article 4, Section (a) of the parties' existing 

agreement as well as Article 1 and Article 3, Section (b)(2) of such 

agreement."

In your petition for review you contend that the decision of the 

Assistant Secretary presents a major policy issue, principally, that 

the decision "violates the employees right of free speech as guaranteed by the Constitution, the Lloyd-LaFollette Act and section 1(a) 

of the Executive Order."

In the Council's opinion, the Assistant Secretary’s decision does not 

present a major policy issue; your petition falls to demonstrate that 

the Assistant Secretary's decision has, in any manner, violated the 

rights of employees under the Order, the Constitution, or the LloydLaFollette Act. Section 13 of the Order provides, in pertinent part:

155
"An agreement between an agency and a labor organization shall provide 

a procedure, applicable only to the unit, for the consideration of 

grievances over the interpretation or application of the agreement"; 

and "Questions that cannot be resolved by the parties as to whether or 

not a grievance is on a matter subject to the grievance procedure in 

an existing agreement . . . may be referred to the Assistant Secretary 

for decision." Thus, the Assistant Secretary's decision in the subject 

case is limited to the threshold determination that the activity's 

grievance is subject to the negotiated grievance procedure because it 

concerns a matter of interpretation and application of the parties' 

agreement; and it is clear that such decision presents no major policy 

issue. Of course, in so deciding, the Assistant Secretary did not consider and did not pass upon the merits of the activity's grievance; that 

is left to subsequent determination under the negotiated grievance procedure. Likewise, the Council is not, in any way, considering or passing 

upon the merits of the activity's grievance.

Since the Assistant Secretary's decision does not present a major policy 

issue and since you neither allege, nor does it appear, that the decision 

is arbitrary and capricious, your appeal fails to meet the requirements 

for review as provided under section 2411.12 of the Council's rules of 

procedure.

Accordingly, review of your appeal is hereby denied. Likewise, your 

request for stay pursuant to section 2411.47(e) of the Council's rules 

is also denied.

By the Council.

cc: A/SLMR

Dept, of Labor

Sincerely,

H e n r y r

Executiv^ iA

azier III 

director

R. J. Parisi 

SSA

156
Local 174 International Federation of Professional and Technical 

Engineers, AFL-CIO, CLC, and Long Beach Naval Shipyard, Long Beach 

California. The negotiability dispute involved a union proposal 

requiring that no unit employee be assigned on a temporary basis 

to a position which he could not qualify to occupy on a permanent 

basis. A further question raised was whether, under section 15 of 

the Order, an agency properly could withhold approval of a provision 

of the local parties' negotiated agreement on the ground that it 

deemed the provision to be in conflict with the Order.

Council action (July 31, 1974). The Council held that the proposal 

would so constrict the agency's discretion as to effectively deny 

management's reserved right, under section 12(b)(2) of the Order, 

to assign unit personnel. Accordingly, the Council sustained the 

agency head determination that the proposal is nonnegotiable. 

Further, based on its decision in Local 174 American Federation 

of Technical Engineers, AFL-CIO and Supships, USN 11th Naval 

.District, San Diego, California, FLRC No. 71A-49 (June 29, 1973), 

Report No. 41, the Council rejected the union's contention in this 

case that the agency was not authorized to disapprove an agreement 

provision which it deemed to be contrary to the Order.

FLRC n o . 73A-16

157
UNITED STATES 

FEDERAL LABOR RELATIONS COUNCIL 

WASHINGTON, D.C. 20415

Local 174 International Federation of 

Professional and Technical Engineers, 

AFL-CIO, CLC

and No. 73A-16

Long Beach Naval Shipyard, Long Beach, 

California

DECISION ON NEGOTIABILITY ISSUES 

Background

Local 174 of the International Federation of Professional and Technical 

Engineers, AFL-CIO, CLC,i' is the exclusive bargaining representative 

for a unit of all graded nonprofessional technical eii5>loyees in the 

engineering sciences and related fields, excluding supervisors and oanagerial executives. The union and the activity concluded a collective 

bargaining agreement and forwarded it for approval pursuant to section 

15 of the Order

The Department of the Navy disapproved a portion of a provision in the 

agreement relating to temporary assignments, details and promotions.

The disputed provision as underlined below reads as follows:

\j The name of the union appears as officially changed during the 

pendency of this proceeding.

l! Section 15 of the Order provides:

Sec. 15. Approval of agreements. An agreement with a 

labor organization as the exclusive representative of 

employees in a unit is subject to the approval of the 

head of the agency or an official designated by him. An 

agreement shall be approved if it conforms to applicable 

laws, existing published agency policies and regulations 

(unless the agency has granted an exception to a policy 

or regulation) and regulations of other appropriate 

authorities. A local agreement subject to a national or 

other controlling agreement at a higher level shall be 

approved under the procedures of the controlling agreement, 

or, if none, vmder agency regulations.

158
When an employee in the Unit Is temporarily assigned to 

a higher level supervisory position for 30 days or more, 

such detail will be documented by the preparation of a 

Standard Form 50. If It Is necessary to continue the 

detail beyond 60 days, a temporary promotion will be 

effected If the employee meets all the qualification 

standards. No Unit employee will be temporarily assigned, 

detailed or promoted to a position for which he could not 

qualify to occupy on a permanent basis.

Upon referral, the Department of Defense determined that the disputed 

portion of the provision would serve to bar assignment or detail of an 

employee to any position within or external to the bargaining unit for 

which the enq>loyee did not fully meet applicable qualification requirements and therefore Is violative of section 12(b)(2) of the Order and 

nonnegotlable.^' The union appealed from this determination to the 

Council under section 11(c)(4) of the Order and the agency filed a statement of position .A/

Article X I I I « Section 2

Opinion

Two questions are presented for Council resolution In this case, as 

follows:

(1) Whether, under section 15 of the Order, the agency 

properly could withhold approval of a provision of the 

local parties' agreement because It deemed the provision 

to be In conflict with the Order; and

(2 ) whether the disputed provision Is nonnegotlable under 

section 12(b)(2) of the Order.

The questions will be considered separately below.

1. Section 15. The union contends. In essence, that, under section 

15 of the Order, an agency can withhold approval of a locally negotiated 

and agreed upon collective bargaining agreement provision only on the 

basis of a finding that the provision conflicts with applicable law, 

existing published agency policies and regulations, or regulations of

37 The DOD also relied on section 12(b)(5) of the Order as a basis for 

holding the provision nonnegotlable. In view of our decision herein we 

find it unnecessary to reach and, therefore, make no ruling as to the 

disputed provision vis-a-vis section 12(b)(5).

4/ There is no apparent dispute between the parties with regard to the 

temporary promotion aspect of the proposal. As indicated, temporary 

promotions were not addressed in the agency head determination. Nor 

were such promotions adverted to in the agency's statement of position.

159
other appropriate authorities. Thus> the union concludes that in this 

case the agency head exceeded his authority by withholding approval of 

the agreement provision here involved on the basis that it conflicts 

with management's rights under the Order.

Resolution of this issue is e o v e m e d bv the Cotjncil's decision in Local 

174 American Federation of Technical Engineers, AFL-CIO and Supships,

USN. 11th Naval District, San Diego, California, FLRC 71A-49 (June 29, 

1973), Report No. 41. In that case, the Council held (at p. 3 of the 

decision):

In the subject case the agency disapproved the agreement on 

the ground that the two disputed provisions Infringed upon 

reserved agency rights under the Order. Although not alluded 

to by the union, it should be noted that 'Order* is not specified in section 15 as a ground for disapproving an agreement. 

However, the absence of specific reference to the Order does 

not mean that conformity to the Order may not be considered 

by an agency head during the agreement approval process. In 

the light of the purposes of section 15, to assure conformity 

of the agreement with supervening requirements, it is clear 

that the Order is included within 'applicable laws' referred 

to in section 15. Moreover, the requirement that an agreement 

be in conformity with the Order is inherent in the section 15 

approval process by virtue of its relationship to section 1 1 (a) 

and (c) of the Order which recognize the authority of an agency 

head to determine nonnegotiability of proposals which conflict 

with the Order. Such actions by the agency during the approval 

process under section 15 are, of course, subject to review by 

the Council upon compliance by the parties with the provisions 

of section 11(c) of the Order and the Council's implementing 

regulations.

Accordingly, we must reject the union's contention in this case that the 

agency was not authorized to disapprove a contract provision which it 

deemed contrary to the Order.

2. Section 12(b)(2). In pertinent part, section 12 of the Order provides 

as follows:

Sec. 12. Basic provisions of agreements. Each agreement 

between an agency and a labor organization is subject to the 

following requirements—

(b) management officials of the agency retain the right, 

in accordance with applicable laws and regulations—

160
(2 ) to hire, promote, transfer, assign, and retain 

employees In positions within the agency, and to suspend, 

demote, discharge, or take other disciplinary action against 

employees;

The agency determined that the union’s proposed provision Is nonnegotlable 

under section 12(b)(2) of the Order because It would Interfere with the 

a gency’s reserved right to assign employees In positions within the agency. 

In more detail, the agency asserted that short-term assignments or details 

as are the subject of the provision are essential means for an agency to 

use to meet Its temporary operational needs (e.g.. In abnormal workload 

situations, when new mission requirements are established, when unanticipated absences occur, and In other situations requiring shifts of personnel 

for relatively brief periods).!/ And as stated by the agency:

Although It Is the general practice to use qualified personnel 

wherever practicable. In some situations requiring limnedlate 

action there may not be time to conduct a quallflclatlons review 

and In other situations fully qualified persons may not be 

available. Nevertheless, management must retain the ability 

to make temporary assignments as needed to get the job done.

We have previously held that section 12(b) rights are mandatory In nature 

and expressly reserved to management under any bargaining agreement.^'

And, as we stated In our VA Research HospltalZ/ decision:

Section 12(b)(2) dictates that In every labor agreement 

management officials retain their existing authority to 

take certain personnel actions, I.e., to hire, promote, 

etc. The emphasis Is on the reservation of management 

authority to decide and act on these matters, and the clear 

Import Is that no right accorded to tmlons under the Order 

may be permitted to Interfere with that authority. [Emphasis 

added.]

—/ "Temporary assignments" or "details" are. In the context of section 

12(b)(2) of the Order, the same personnel action. I.e., assignments.

Nothing In the Order Indicates that the reservation of authority by section 

1 2 (b)(2 ), except as may be provided by applicable laws or regiilatlons, Is 

In any way dependent tjpon the Intended duration of the particular personnel 

action Involved.

Tidewater Virginia Federal Employees Metal Trades Council and Naval 

Public Works Center, Norfolk, Virginia, FLRC No. 71A-56 (Jime 29, 1973), 

Report No. 41, pp. 4-5.

U Veterans Administration Independent Service Employees Union and Veterans 

A<^1l^^n^8 tration Research Hospital, Chicago, Illinois. FLRC No. 71A-31 

(November 22, 1972), Report No. 31, p. 3.

161
The union proposal Involved in the negotiability dispute in the VA Research 

Hospital case, which would have enabled the union to obtain higher level 

managanent review of a selection for promotion before the promotion could 

be effected, did not appear to the Council as one which would unreasonably 

delay or impede management's discretion with regard to selections for promotion so as to, in effect, deny the right reserved by section 12(b)(2).^/ 

Instead, it dealt with procedures which management will observe in reaching 

the decision concerning promotions.

The question before the Council, then, is whether the portion of the 

agreement provision here at issue would so constrict management's ability 

to assign employees as to, in effect, deny the right reserved by section 

12(b)(2).

The provision would deny management the right to temporarily assign, detail, 

or promote employees to positions for which they could not qualify to occupy 

on a permanent basis. Thus, the impact of the language would be that in 

the event no employees are qualified to occupy the positions on a permanent 

basis, management would be unable to assign the duties to any employee.

It is clear, therefore, we are not dealing with procedures for handling 

details or even for guaranteeing that "qualified" employees are assigned or 

detailed before "unqualified" employees, if there were time available to__^ 

determine such qualifications.

As noted in the agency's decision letter concerning the negotiability of 

the language in question, there may be situations requiring immediate action 

in which there may not be time to conduct a qualifications review, and there 

may be times when work must be done but no employee is available who would 

"qualify to occupy [the position] on a permanent basis."

Thus, in this case, unlike in VA Research Hospital, the union's proposal 

by requiring that assignment of a bargaining unit employee on a temporary 

basis could not be made unless the employee was fully qualified to fill 

the particular position in question on a permanent basis would so constrict 

management's discretion in the exercise of a right retained under section 

12(b)(2), i.e., the right to assign personnel, as to effectively deny that 

right in the circumstances here involved. Accordingly, Insofar as the 

proposal affects management's right to assign, it must be considered nonnegotiable.

Conclusion

Based on the reasons set forth above, and pursuant to section 2411.27 of 

the Council's Rules and Regulations, we find that the agency head's determination that the union proposal here involved is nonnegotiable under

87 Id,

162
section 12(b)(2) of the Order was proper as it pertains to the temporary 

assignment or detail of bargaining unit personnel and must, therefore, be 

sustained.

By the Council.

Issued: July 31, 1974 Harold D. Kessler

Acting Executive Director

163
Veterans Administration HospltaL Canandaigua. New York and Local 227. 

Service Employees International Union. Buffalo, New York (Miller, 

Arbitrator). The Council accepted the agency's petition for review 

In this case, which petition alleged that the arbitrator's award 

violated the Order by directing the hospital, before assigning all 

present licensed practical nurses (LPN's) to the midnight shift, 

to recognize the LPN's rights under the seniority clause of the 

collective bargaining agreement and consider assigning either nursing assistants (NA's) or newly employed LPN's with lesser seniority 

to that shift (Report No. A7).

Council action (July 31, 1974). The Council held that the award

compels the hospital to treat the NA's as the functional equivalent

to and Interchangeable with the LPN's and thereby violates the

Order by interpreting and applying the seniority clause of the

agreement in such a manner as to Infringe upon the right reserved

to the hospital, under section 12(b)(5) of the Ordex; to determine

the personnel by whom its nursing care services are to be performed.

Accordingly, pursuant to section 2A11.37(b) of its rules (5 CFR 2411.37(b)),

the Council set aside the arbitrator's award.

FLRC NO. 73A-42

164
UNITED STATES 

FEDERAL LABOR RELATIONS COUNCIL 

WASHINGTON, D.C. 20415

Veterans Administration Hospital,

Canandaigua, New York

and FLRC No. 73A-42

Local 227, Service Employees International 

Union, Buffalo, New York

DECISION ON APPEAL FROM ARBITRATION AWARD 

Background of Case

Several GS-6 licensed practical nurses (LPN's) filed a grievance against 

the Veterans Administration Hospital, Canandaigua, New York, alleging 

that they had been assigned to the midnight shift against their wishes 

in violation of the seniority clause (Article XVII, Section 4) of the 

collective bargaining agreement.2./

Based on the findings of the arbitrator, the agency's uncontroverted 

statements in its appeal to the Council and the entire record, the circumstances of the case appear as follows:—'

The hospital cares for predominately psychiatric patients. Its physical 

plant consists of several separate buildings which contain patient care 

areas. Most of these buildings house the more acutely ill patients and 

include "locked ward" areas; the less acutely ill patients are housed in 

three buildings referred to as "open buildings."

The hospital's nursing staff includes registered nurses (RN's), LPN's, and 

nursing assistants (NA's). Both the LPN's and the NA's are classified to 

the General Schedule Position Classification Series GS-621. The record 

shows that the officially assigned title of the LPN positions involved 

herein is: Licensed Practical Nurse; the officially assigned title of the 

NA positions involved herein is: Psychiatric Nursing Assistant. The 

GS-621 Series is defined by the U.S. Civil Service Commission as covering

positions which involve a variety of personal care, nursing care, 

or related technical procedures which do not require the full 

professional background in nursing care planning and evaluation

V Article XVII, Section 4 provides: "Senior employees will be given 

preference in the selection of shifts or tour of duty in all Services 

and Divisions."

7J The union filed no opposition to the agency's petition for review, 

nor any brief, in this case.

165
acquired in professional nurse education programs. Employees 

in these positions typically are under the supervision of 

registered nurses or physicians.

The Position-Classification Standards which the Civil Service Commission 

has issued for the GS-621 Series provide, in pertinent part:

For positions at GS-3 and above the titles are:

Licensed Practical Nurse (or Licensed Vocational Nurse)

(See discussion below.)

Psychiatric Nursing Assistant

Licensed Practical Nurse (or Licensed Vocational Nurse) 

may be used as the official title for any position at 

grade GS-3 and above that is properly classified in this 

series and is staffed by an individual who is licensed 

by a State, Territory, or the District of Columbia to use 

the title "Licensed Practical Nurse", or "Licensed 

Vocational Nurse". The title applies to positions that 

otherwise would be titled "Nursing Assistant", "Operating 

Room Nursing Assistant", "Psychiatric Nursing Assistant" 

or "Psychiatric Nursing Assistant (Drug Abuse)."

Authorization of this title does not in any way affect the 

hospital management's authority to assign duties and 

responsibilities and make staffing decisions. It does not 

require management to limit or prescribe specific assignments to Licensed Practical Nurses, nor does it limit 

management's authority to make the most effective use of 

the total nursing care staff.

Psychiatric Nursing Assistant is the title for positions 

involving care of patients in psychiatric hospitals, in 

psychiatric units in general medical and surgical hospitals, 

or in mental health clinics. . . . Psychiatric Nursing 

Assistant positions are under the supervision of registered 

nurses, psychiatrists, or psychiatric technicians of higher 

grade.

166
There are great variations In assignments of duties and 

responsibilities of nonprofesslonal nursing care positions 

among different hospitals. For example» some hospitals 

. . . depend upon the training that employees have previously 

received In "approved" licensed practical nurse training 

programs; In these hospitals only Individuals so trained are 

assigned to administer medications ....

The criteria In this standard are Intended to provide gradelevel guidance for nursing assistant and Licensed Practical 

Nurse positions regardless of the way In which management 

assigns patient care work ....

The Position Descriptions which describe the duties actually performed In 

the VA Hospital at Canandaigua assign different work responsibilities to 

the two groups of employees From the Position Descriptions and the 

record. It appears that the LPN positions were established primarily to

V The differences between the nature and purpose of position descriptions 

and the nature and purpose of position classification standards, as 

they are used within the Federal Government, are profound. The Federal 

Personnel Manual (Chapters 312 and 511) describes the nature and purposes 

of the position descriptions and position classification standards:

Agencies have the discretion in the interest of the efficiency 

of the Federal service, to assign, change, or eliminate part 

or all of the duties and responsibilities that have been 

grouped together to constitute a position.

A position in the Federal Government is a specific civilian 

office or employment consisting of all the duties and responsibilities currently assigned or delegated by competent authority 

and requiring full-time or part-time employment of one person.

A OTltten record of the basic duties and responsibilities 

assigned to a position must be prepared before an employee can 

be hired or assigned. . . .The official record of this information is usually called the position description.

(Continued)

167
operate "in charge" of the work responsibilities in one building under the 

indirect supervision of an RN in another building. LPN's are required to 

have completed a one year course of study in an approved school of licensed 

practical nursing and to have received a state license to practice their 

occupation. LPN's are permitted to administer medicine after completion of 

a special VA medication course. The NA positions» on the other hand, were 

established primarily to provide therapy to small groups of patients 

requiring intensive and continuous retraining and redirection of behavior. 

NA's are not assigned "in charge" responsibility, but, rather, work under 

the direct supervision of an RN who has charge of the building. N A’s are 

never permitted to administer medication. NA's are not required to have 

had specialized education, training, or experience to qualify initially for 

their positions; they are given on-the-job training and progress to more 

responsible duties upon successful completion of specialized training and 

selection through merit promotion. LPN's and NA's compete separately for 

promotion.

(Continued)

A position description is a statement of the duties and 

responsibilities comprising the work assigned to a civilian 

officer or employee. A group of like positions may be 

covered by a single description.

Position descriptions are the basic and official source 

documents for determining the proper class and grade of 

positions tmder the General Schedule.

The General Schedule classification system is a comprehensive, 

orderly system for classifying positions by occupational group, 

series, class, and grade according to similarities and differences in duties, responsibilities, and qualification requirements. It evolves from chapter 51 of title 5, United States 

Code.

The law requires that agencies classify positions in conformance 

with, or consistent with, standards published by the Commission.

(Continued)

168
The hospital, following a manpower utilization survey and in an attempt 

to upgrade the quality of its patient care, attempted to provide for the 

assignment of an RN to every building on every shift except the midnight 

shift. On the midnight shift, R N’s were a s s i m e d to each building with 

the exception of the three "open buildings.'—' The hospital then assigned 

all the L P N’s to "in charge" responsibility over these three "open buildings" 

during the midnight shift. The determination that the LPN's should be the 

personnel who will conduct the "in charge" operations in the "open buildings" 

when R N’s were not available (i.e., on the midnight shift) was based upon 

the hospital's decision that LPN's, because of their superior training and 

abilities, would best serve the maintenance of quality patient care by 

assuming the "in charge" responsibility when no RN was available. Prior to 

this determination, which precipitated the instant grievance, LPN's had 

exercised the same "in charge" responsibilities on other shifts, but they 

did not compete with NA's in this regard. Although the reassignments were 

effected only after notice to the union,l./the LPN's objected to the 

reassignments on the ground in effect that NA's with less seniority were

(Continued)

A position classification standard describes the duties, 

responsibilities, and qualifications required for full 

performance for a class of positions. It distinguishes 

one class of positions from another tinder the position 

classification plan.

[Thus, position classification standards are a] set of 

documents published by the Civil Service Coimnission 

which provides information for distinguishing the duties, 

responsibilities, and qualification requirements of 

positions in one class from those of positions in other 

classes, and which thus provides the criteria for placing 

each position in its proper class. These standards 

distinguish both in level of difficulty and responsibility 

and in kind of work.

V The arbitrator, in his opinion, inadvertently refers to these 

buildings as being "not open."

V Such notice was made under Article XVII, Section 5 of the agreement:

Establishment of new tours of duty or changes in existing 

tours of duty will be brought to the attention of the Union 

in advance and their views considered prior to any action 

taken or any changes made.

169
available for the assignments. The hospital offered the LPN's the alternative of accepting the reassignment or remaining on their present shifts 

taking a volvintary reduction to GS-5.^' The LPN's grieved.

The Arbitrator’s Award

The arbitrator, finding that the hospital by its action had violated the 

seniority clause (Article XVII, Section 4) of the agreement, sustained the 

grievance. As a remedy, he directed the hospital to recognize the grievants' 

r i ^ t s tinder the seniority clause of the agreement and to consider others of 

6S-6 ratings, either NA's or newly employed LPN's with lesser seniority, for 

the midnight shift before assigning the grievants to that shift and tout of 

duty.

Agency's Appeal to the Council

The agency filed a petition for review of the arbitrator's award with the 

Council alleging, in part, that the award violated section 12(b)(5) of the 

Order.—' The Council accepted the petition for review. Neither party filed 

a brief.

Opinion

Section 2411.37(a) of the Council's rules of procedure provides, in pertinent 

part, that "An award of an arbitrator shall be modified, set aside in whole 

or in part, or remanded only on the grounds that the award violates . . . 

the order . . . ."

As previously stated, the hospital, pursuant to its decision to upgrade the 

quality of its patient care, determined that the GS-6 LPN's should be the

The CSC Position Classification Standards for the GS-621 Series at 

grade GS-6 provide, inter alia;

GS-6 psychiatric nursing assistants and Licensed Practical Nurses 

serve in an "in-charge" capacity on a ward or other patient unit, 

with responsibility for ensuring that all nonprofessional personal 

and nursing care is accomplished, usually on the evening or n i ^ t 

shift. Generally, this assignment also includes responsibility 

for measuring, pouring, and administering medications required by 

patients on the ward during the shift. Assignments at the GS-5 

level do not tj^ically involve "in-charge" or equivalent responsibilities.

TJ The agency also alleged violations of section 11(b) and sections 12(b)(1),

(2) and (4) of the Order; however, it is not necessary for the Council to 

rule on these allegations in view of our decision herein.

170
personnel who conduct the "in charge" operational responsibilities in the 

"open buildings" on the midnight shift. In this connection, the hospital 

concluded that the LPN's, because of their superior training and abilities, 

were best suited to maintain quality patient care by assuming "in charge" 

responsibilities in the absence of RN's during that shift. The arbitrator, 

however, in sustaining the LPN’s grievance, determined that the hospital 

had violated the LPN’s contractual seniority rights, and directed the 

hospital to recognize the grievants’ seniority rights and to consider others 

of GS-6 ratings, either Nursing Assistants or newly employed LPN’s with 

lesser senioriry, for the m i d n i ^ t shift before assigning the grievants to 

that shift.—'

The agency contends, in substance, that the award would force management to 

assign N A’s to conduct "in charge" operational responsibilities on the midnight shift contrary to management's determination that LPN’s should be the 

personnel who conduct these operations.

In reaching this conclusion the arbitrator cites, among other things, 

the Union’s reliance "upon the GS-6 Position-Classification Description [sic] in the Civil Service Regulations whereby Nursing Assistants 

and Licensed Practical Nurses, whose salary is the same, are treated 

alike as to duties." As was noted above, those CSC Position 

Classification Standards provide:

Authorization of this title [LPN] does not in any way affect 

the hospital management’s authority to assign duties and 

responsibilities or make staffing decisions. It does not 

require management to limit or prescribe specific assignments 

to Licensed Practical Nurses, nor does it limit management's 

authority to make the most effective use of the total nursing 

care staff.

The criteria in this standard are intended to provide gradelevel guidance for nursing assistant and Licensed Practical 

Nurse positions regardless of the way in which management 

assigns patient care work ....

See also International Association of Fire Fighters, Local F-111, and 

Griffis Air Force Base, Rome, N.Y.. FLRC No. 71A-30 (April 19, 1973), 

Report No. 36 at pages 3-5 of the Cotmcil's decision for a general 

exposition by the CSC concerning position classification standards.

171
The agency's exception to the arbitrator's award specifically raises the 

issue of whether the award violates section 12(b)(5) of the Order, which 

reads as follows:

(b) management officials of the agency retain the right, 

in accordance with applicable laws and regulations---

(5 ) to determine the methods, means, and personnel by 

which such operations are to be conducted; (emphasis 

added) ....

The Council, in Tidewater^/defined the term "personnel," as used in the 

Order, as meaning

. . . the total body of persons engaged in the performance 

of agency operations (i.e., the composition of that body in 

terms of numbers, types of occupations and levels) and the 

particular groups of persons that make up the personnel 

conducting agency operations (e.g., military or civilian 

personnel; supervisory or nonsupervisory personnel; professional 

or nonprofessional personnel; Government personnel or contract 

personnel). In short, personnel means who will conduct agency 

operations.

The arbitrator's award in this case would negate management's right to 

determine whether LPN's or NA's will be the personnel responsible for 

conducting the "in charge" responsibilities in the "open buildings" when 

RN's are not available (i.e., on the midnight shift). The award clearly 

would prevent the agency from implementing its determination that the 

assignment of all its GS- 6 LPN's to the "in charge" operational responsibility on the midnight shift would best serve to upgrade the quality of 

its patient care, patient care being the basic operation of the governmental activity here involved. The award interferes with the management 

right to determine "who" will conduct the particular agency operations 

involved in that it mandates the hospital to assign other types or 

categories of personnel to conduct "in charge" operational responsibilities 

on the midnight shift. Such right to determine the types or categories of 

personnel by which the hospital's operations are to be conducted is 

reserved to management under the Order and cannot be bargained away. As 

the Council stated in this regard in Tidewater:

Section 12(b) establishes rights expressly reserved to management 

officials under any bargaining agreement. The mandatory nature of

Tidewater Virginia Federal Employees Metal Trades Council and Naval 

Public Works Center, Norfolk, Virginia, FLRC No. 71A-56 (June 29, 

1973), Report No. 41.

172
this reservation was underscored In our recent decision In the 

VA Research Hospital case where. In Interpreting and applying 

section 12(b)(2), we said:

"Section 12(b)(2) dictates that In every labor agreement 

management officials retain their existing authority to 

take certain personnel actions. I.e., to hire, promote, 

etc. The emphasis Is on the reservation of management 

authority to decide and act on these matters, and the 

clear Import Is that no right accorded to unions under 

the Order may be permitted to Interfere with that 

authority.”

Although the decision In the VA Research Hospital case dealt 

only with the Inteirpretatlon and application of section 12(b)(2), 

this reasoning Is equally applicable to section 12(b)(5). (Emphasis 

added and footnote In original omitted.)

Management's reserved rights under section 12(b)(5) of the Order may not 

Infringed by an arbitrator's award under a negotiated grievance procedure.— ' 

The award here at issue (which compels the hospital to treat the NA's as 

being the ftinctlonal equivalent to and Interchangeable with the LPN’s) Interferes with the hospital's reserved right under section 12(b)(5) of the Order 

to determine the personnel by which Its nursing care services are to be 

performed. Therefore, the award cannot be permitted to stand.

Conclusion

For the foregoing reasons, we find that the arbitrator's award violates the 

Order by Interpreting and applying the seniority clause of the collective 

bargaining agreement in such a manner as to Infringe upon the right 

reserved to management under section 12(b)(5) of the Order.

Accordingly, pursuant to section 2411.37(b) of the Council's rules of procedure, we set aside the arbitrator's award in its entirety.

By the Council.

Issued: July 31, 1974

Harold D. Kessler 

Acting Executive Director

10/ Professional Air Traffic Controllers Organization and Federal 

Aviation Administration, Department of Transportation (Britton, 

Arbitrator) FLRC No. 74A-1 (June 24, 1974), Report No. 53 at 

page 4 of the Council's decision letter.

173
Federal Aviation Administration, Western Region, San Francisco, 

California, Assistant Secretary Case No. 70-4067. The Assistant 

Secretary upheld the Assistant Regional Director's dismissal of 

Frederick Benedict's complaint which alleged that a remark made 

by a supervisor to a union official (i.e.» the FAA Flight Surgeon 

"had a strong case against Frederick Benedict (regarding separation 

attempt by FAA)") violated section 19(a)(1) and (3) of the Order by 

discouraging the union from representing Benedict. The Assistant 

Secretary found that the remark in question failed to establish a 

reasonable basis for Benedict's complaint and that Benedict failed 

to sustain his burden of proof under the Assistant Secretary's 

regulations. Benedict appealed to the Council contending, in 

effect, that the Assistant Secretary's decision appears arbitrary 

and capricious or presents a major policy issue, substantially because 

a hearing should have been conducted, and because the union had failed 

to represent him properly.

Council action (July 31, 1974). The Council held that nothing in 

Benedict's appeal indicated that substantial factual issues exist 

requiring a hearing; and the Assistant Secretary's decision did not 

appear to be without reasonable justification or in any other manner 

arbitrary and capriclbus. The Council further determined that no 

major policy issue was presented by the Assistant Secretary's decision. Accordingly, the Council denied review of Benedict's appeal 

pursuant to section 2411.12 of the Council's rules of procedure 

(5 CFR 2411.12).

FLRC NO. 74A-26

174
UNITB) STATES

FEDERAL LABOR RELATIONS COUNCIL

iMO e s m s rr. n.w. • w a sh in o io n . Ojc. smm 

July 31. 1974

Mr. Frederick Benedict 

2351 Olive Avenue 

Fremont, Calirnmla 94538

Re: Federal Aviation Adalnistratlon, Western

Region. San Francisco, California, Assistant 

Secretary Case No. 70-4067, FLRC No. 74A-26

Dear Mr. Benedict:

The Council has carefully considered your request for review of the 

Assistant Secretary's decision in the above~entitled case.

In this case the Assistant Secretary in substance affimed the Assistant 

Regional Director's dismissal of your unfair labor practice complaint. 

Your complaint had alleged that a supervisor, in a telephone conversation 

with a union official, stated the FAA Flight Surgeon "had a strong case 

against Frederick Benedict (regarding separation atteoq>t by FAA);" and 

that such statement violated section 19(a)(1) and (3) of the Order by 

discouraging the union from representing you. The Assistant Secretary 

found that such statement, standing alone, does not establish a reasonable basis for your conqplaint and that you had failed to sustain your 

burden of proof as required by Section 203.5(c) of his regulations.

In your petition for review, you contend, in effect, that the Assistant 

Secretary's decision appears arbitrary and capricious or presents a 

major policy issue, substantially because a hearing should have been 

conducted, and becatjse the union failed to represent you properly, as 

evidenced in a pending unfair labor practice complaint which you filed 

against the union.

In the Council's opinion, nothing in your appeal indicates that substantial factual issues exist requiring a hearing. Moreover, the 

Assistant Secretary's determination does not appear to be without 

reasonable justification or in any other manner arbitrary and capricious. 

Additionally, in our view, no major policy issue is presented by the 

Assistant Secretary's decision.

Since the Assistant Secretary's decision does not appear arbitrary and 

capricious and does not present a major policy issue, your appeal fails

175
to meet the requirements for review as provided under section 2411.12 

of the Council's rules of procedure. Accordingly, review of your 

appeal is hereby denied.

By the Council.

cc: A/SLMR

Dept, of Labor

R. J. Alfultis 

Transportation

Sincerely,

Harold D. Kessler 

Acting Executive Director

176
Federal Aviation Administration, Western Rfeglon, San Francisco,' 

California, Assistant Secretary Case No. 70-4068. The Assistant 

Secretary purstiant to , section 203.2(b)(3) of hl» regulations (requlrIng the filing of a complaint within nine months of the occurrence

of the alleged unfair labor practice) dismissed as untimely filed 

Frederick B e n e d i c t’s complaint which alleged that written communications sent by the activity to the Civil Service Commission between 

1967 and 1970, concerning Benedict's organizational activities, 

violated sections 1 and 19(a)(1) and (3) of the Order. Benedict 

appealed to the Council, contending, in substance, that the Assistant 

Secretary's decision appears arbitrary and capricious or presents 

a major policy issue because the time period for filing a complaint 

should rvin from the date of discovery, rather than occurrence, of 

the alleged unfair labor practice, and asserting that the alleged 

unfair labor practice was a continuing matter.

Council action (July 31, 1974). The Council held that the Assistant 

S ecre t a r y’s decision did not present a major policy issue since no 

persuasive reasons were advanced by Benedict for overturning the 

Assistant S ecretary’s regulation, as interpreted and applied, requiring that a complaint be filed within nine months of the occurrence, 

rather than the date of discovery, of the alleged unfair labor 

practice. The Council further held that the Assistant Secretary's 

decision did not appear arbitrary and capricious since it did not 

appear to be without reasonable justification in this case. In this 

regard, the Council noted that Benedict failed to show that the subject 

communication constituted a continuing unfair labor practice; nor 

were other grounds adduced, such as fraudulent concealment, that 

might warrant a "waiver" of the timeliness requirement. Accordingly, 

the Council denied review of Benedict's appeal pursuant to section 

2411.12 of the Council's rules of procedure (5 CFR 2411.12).

FLRC NO. 74A-27

177
UNITED STATES

FEDERAL LABOR RELATIONS COUNCIL

1900 E STREET, N.W. • WASHINGTON, D.C. 2<H15

July 31, 1974

t 5= . ..

Mr. Frederick Benedict 

2351 Olive Avenue 

Fremont, California 94538

Re; Federal Aviation Administration, Western Region, 

San Francisco, California, Assistant Secretary 

Case No. 70-4068, FLRC No. 74A-27

Dear Mr. Benedict:

The Council has carefully considered your petition for review of the 

Assistant Secretary's decision in the above-entitled case.

In this case, the Assistant Secretary in effect upheld the Assistant 

Regional Director's dismissal of your unfair labor practice coinplaint. 

Your complaint had alleged that written communications sent by the 

activity to the Civil Service Conmission between 1967 and 1970 link 

you to two "sickouts," and make reference to union activities on your 

part; and that such comnunications constituted violations of sections 1 

and 19(a)(1) and (3) of the Order. In this regard the Assistant Secretary found further proceedings with respect to your complaint to be 

unwarranted because the complaint was not filed within nine months of 

the occurrence of the alleged unfair labor practice as required by 

section 203.2(b)(3) of the Assistant Secretary's regulations, and he 

rejected your contention that your "discovery" of the communications 

after the expiration of the prescribed filing period warranted a "waiver" 

of the timeliness requirement.

In your petition for review, you contend in substance that the Assistant 

Secretary's decision appears arbitrary and capricious or presents a 

major policy issue, because the time period for filing your complaint 

should run from the date that you discovered the alleged unfair labor 

practice; and you assert that this unfair labor practice "has been a 

continuing matter."

In the Council's opinion, your petition for review of the Assistant 

Secretary's decision does not meet the requirements of section 2411.12 

of the Council's rules; that is, his findings and decision do not 

appear in any manner arbitrary and capricious nor do they present a 

major policy issue. As to the alleged major policy issue, your appeal

178
presents no persuasive reasons for overturning the Assistant Secretary's 

regulation, as interpreted and applied, that a complaint be filed within 

nine months of the occurrence of the alleged unfair labor practice rather 

than from the date of discovery of such unfair labor practice. With 

respect to your contention that the decision of the Assistant Secretary 

appears arbitrary and cafxriclous, it does not appear that the findings and 

decision of the Assistant Secretary were without reasonable Justification 

In the circumstances of this case. In the above regard, while you make a 

bare assertion that the unfair labor practice has been a continuing 

matter, you make no showing, for example, that the written communications 

were retained in your personnel file and thereby constituted a continuing 

unfair labor practice; nor are any other grounds adduced in your appeal, 

such as fraudulent concealment, that might warrant the granting of a 

’’waiver” of the timeliness requirement.

Since the Assistant Secretary's decision does not appear arbitrary and 

capricious and does not present a major policy issue, your appeal falls 

to meet the requirements for review as provided under section 2411.12 

of the Council’s rules of procedure. Accordingly, review of your appeal 

is hereby denied.

By the Council.

Sincerely,

cc: A/SLMR

Dept, of Labor

R. J. Alfultis 

Transportation

Harold D. Kessler 

Acting Executive Director

179
Air Engineering Center, Naval Air Support Activity. Philadelphia, Pa., 

Assistant Secretary Case No. 20-4311. The individual complainant 

(Joseph J. Chickillo) appealed to the Council from the decision of 

the Assistant Secretary which issued on July 8, 1974. The appeal 

was due, under the Co u n c i l’s rules, on or about July 31, 1974. H owever, the appeal was not filed with the Council until August 6, 1974, 

and no extension of the time for filing was either requested by the 

complainant or granted by the Council.

Coimcil action (August 15, 1974). Because the complainant's appeal 

was untimely filed, and apart from other considerations, the Council 

denied the petition for review.

FLRC NO. 74A-56

180
UNITEO STATES

FEDERAL LABOR RELATIONS COUNCIL

1900 E STREET, N.W. • WA8HINOTON, D.C. 2M1S

August 15, 1974

Mr. John J. D’Angelo 

Bank, Minehart & D'Angelo 

Suite 2409

Twelve South Twelfth Street 

Philadelphia, Pennsylvania 19107

Re: Air Engineering Center, Naval Air

Support Activity, Philadelphia, Pa., 

Assistant Secretary Case No. 20-4311, 

FLRC No. 74A-56

Dear Mr. D'Angelo:

Reference is made to your petition for review of the Assistant 

Secretary’s decision in the above-entitled case. For the reasons 

indicated below, the Council has determined that your petition was 

untimely filed under the Cotincil's rules of procedure and cannot be 

accepted for review.

Section 2411.13(b) of the Council's rules (5 CFR 2411.13(b)) provides 

that an appeal must be filed within 20 days from the date of service 

of the Assistant Secretary’s decision on the party seeking review; 

under section 2411.45(c) of the rules (5 CFR 2411.45(c)), three additional days are allowed when service is by mail; and under section 

2411.45(a) of the rules (5 CFR 2411.45(a)), such appeal must be 

received in the Council’s office before the close of business of the 

last day of the prescribed time limit.

The Assistant Secretary's decision in this case was dated July 8, 1974 

and, so far as your appeal indicates, was mailed on or about that date. 

Therefore, under the above rules, your appeal was due in the Council’s 

office on or about July 31, 1974. However, your petition for review 

was not filed until August 6, 1974, and no extension of time was 

either requested by you or granted by the Council under section 2411.45(d) 

of the Council's rules (5 CFR 2411.45(d)).

181
Accordingly, as your appeal was untimely filed, and apart from other 

considerations, your petition for review Is denied.

By the Council.

Sincerely,

Henry B/ 

Executj

razler III 

Director

cc; A/SLMR

Dept, of Labor

182
U.S. Army Electronics Command, Ft. Monmouth, New Jersey, Assistant 

Secretary Case No. 32-3329 (CA). The union (Local 476, National 

Federation of Federal Employees) appealed to the Council from the 

Assistant Secretary's decision denying the union's request for 

review of the dismissal of its unfair labor practice complaint, 

which decision was based on the untimeliness of the request for 

review. After the appeal was filed, the Assistant Secretary vacated 

his subject decision and ruled that he will consider the u n i o n’s 

request on its merits.

Council action (August 19, 1974). Since the dispute involved in 

the union's appeal to the Council was rendered moot, the Courcil 

denied review of the appeal, without prejudice to the union's 

right of appeal to the Council after a final decision on the entire 

case by the Assistant Secretary.

FLRC NO. 74A-21

183
UNITED STATES

FEDERAL LABOR RELATIONS COUNCIL

1900 E STREET, N.W. • WASHINGTON, O.C. 20415

August 19, 1974

Mr. Herbert Cahn 

President, Local 476 

National Federation of 

Federal Employees 

P. 0. Box 204

Little Silver, New Jersey 07739

Re: U.S. Army Electronics Connnand, Ft. 

Monmouth, New Jersey, Assistant 

Secretary Case No. 32-3329 (CA), 

FLRC No. 74A-21

Dear Mr. Cahn:

Reference is made to your appeal from the Assistant Secretary's denial, 

on the basis of untimeliness, of your request for review of the Assistant 

Regional Director's dismissal of your unfair labor practice complaint in 

the above-entitled case.

The Council is administratively informed that the Assistant Secretary, 

by letter dated July 22, 1974, has vacated his subject decision and has 

ruled that he will now consider your request for review on its merits.

Accordingly, since the dispute involved in your appeal to the Council has 

been rendered moot, review of your appeal is denied, without prejudice to 

your right of appeal, in a petition duly filed with the Council, after a 

final decision on the entire case by the Assistant Secretary.

By the Council.

Sincerely,

cc: A/SLMR

Dept. of Labor

H. F. Foster, Jr., Maj. Gen. 

USAECOM

Henry 1. /Frazier 

Executi^ Director

184
Naval Air Rework Facility, Pensacola, Florida and American Federation 

of Government Employees, Lodge No. 1960 (Goodman, Arbitrator). The 

Issue submitted to the arbitrator In this case was whether electroplaters were entitled to "high degree (8%)" environmental differential 

pay under the bargaining agreement which provided for "environmental 

pay differentials." The arbitrator concluded that, while he was 

unable to decide the "high degree" issue, the electroplaters were 

entitled to "low degree (4%)" environmental differential pay and 

made such award. The agency filed exceptions on the grounds that

(1) the arbitrator exceeded his authority by deciding an issue not 

submitted to him; and (2) implementation of the award would violate 

the FPM or, derivatively, section 12(a) of the Order.

Council action (September 9, 1974). The Council determined that 

the a g e n c y’s exceptions were not supported by sufficient facts and 

circumstances to warrant review as required by section 2411.32 of 

the Council's rules of procedure. More particularly, as to (1), 

the Council held that the parties appear to have intended to resolve 

the dispute as to whether electroplaters were entitled to environmental differential payments; and that in the private sector courts 

have recognized a policy allowing arbitrators considerable leeway 

in fashioning remedies, which policy likewise applies to the federal 

sector under the Council's rules. With respect to (2), the Council 

held that the agency failed to support its claim that implementation 

of the award will violate the FPM or, derivatively, the Order. Accordingly, the Council denied the agency's petition for review. The 

Council also denied related procedural requests filed by the agency.

FLRC NO. 74A-12

185
FEDERAL LABOR RELATIONS COUNCIL

1900 E STREET. N.W. • WASHINGTON, O.C. 2041S

September 9, 1974

UNITED STATES

Mr. A. Di Pasquale, Director 

Labor and Enq>loyee Relations Division 

Office of Civilian Manpower Management 

Department of the Navy 

Washington, D.C, 20390

Re: Naval Air Rework Facility, Pensacola, 

Florida and American Federation of 

Government Employees, Lodge No« 1960 

(Goodman, Arbitrator), FLRC No. 74A-12

Dear Mr. Di Pasquale:

The Coxmcil has carefully considered your petition for review of an 

arbitrator's award filed in the above-entitled case.

As indicated in the award. Article XX ("Environmental Pay, Health, Safety, 

and General Welfare") of the agreement between the parties provides in 

pertinent part as follows:

Section 2. Environmental pay differentials are paid for exposure 

to various degrees of hazards, physical hardships, and working 

conditions of an unusual nature. Appendix J of FPM 532-1 describes 

all of the current environmental pay situations authorized by the 

Civil Service Commission ....

Based on the facts described in the award, it appears that the subject 

grievance was filed as a result of the termination by the activity of 

"high degree" (8%) environmental differential payments on a continuing 

basis to electroplaters. The grievant, an electroplater, alleged in 

effect that termination of such payments was contrary to the applicable 

provisions of FPM Supplement 532-1 and Appendix J thereto, in that he 

"continually encounter[ed] hazards that are not alleviated by safety 

devices, and . . . [he is] vulnerable to injuries because of the ntonerous 

toxic and corrosive materials used daily" in his work, which have not 

been eliminated by safety devices. The grievant therefore stated that, 

pursuant to FPM Supplement 532-1 and Appendix J thereto, he should receive 

"high degree" environmental differential payments, retroactive to the termination of such payments by the activity. The grievance was denied by the 

activity, and was then submitted to arbitration pursuant to the agreement. 

While the arbitrator’s opinion itself is in part somewhat ambiguous, it is 

clear from the submissions to the Council that the following issue was 

submitted to arbitration: "... whether the Electroplaters working in

186
the Electroplating Shop in Building 604 of the Naval Air Rework Facility, 

Pensacola, Florida, are entitled to ’high degree' (8%) environmental 

differential pay on a continuing basis."

In his award, the arbitrator concluded that due to the nature of the 

question, the testimony and evidence presented at the hearing was 

insufficient to enable him to decide the issue as to "high degree" 

environmental differential pay. This was so, the arbitrator stated, 

essentially because he could not determine the exact degree of hazard 

present at the electroplaters' wor k site. He did find, however, that:

. . . since Management has recognized that the degree of hazard and 

elements normally considered in the giving of a differential justifies low degree environmental differential pay for Plant Services 

Division (maintenance) employees when working about the Electroplating tanks, I feel compelled to say that this differential should 

be applied to the Electroplaters. To do otherwise would be to ignore 

the payment of the differential to some employees in the area or to 

attempt to assert my judgment for that of Management in an area 

where it has made this determination. [Emphasis in original.]

Accordingly, the arbitrator awarded "low degree" environmental differential 

pay on a continuing basis to electroplaters.i:/ The agency requests that 

the Council set aside the arbitrator's award, based on the exceptions 

discussed below.

Under section 2411.32 of the Council's rules of procedure, review of an 

arbitration award will be granted "only where it appears, based upon the 

facts and circumstances described in the petition, that the exceptions to 

the award present grounds that the award violates applicable law, appropriate regulation, or the order, or other grounds similar to those upon 

which challenges to arbitration awards are sustained by courts in private 

sector labor-management relations."

In its first exception, the agency contends that the arbitrator exceeded 

the scope of his authority by directing that electroplaters receive "low 

degree" environmental differential payments, because the specific issue 

submitted to him was whether or not electroplaters are entitled to receive 

"high degree" payments. Hence, the agency asserts that the arbitrator 

exceeded the scope of his authority by deciding an issue not submitted to 

him, and that his award directing the payment of "low degree" environmental 

differentials should therefore be stricken. In support of this exception, 

the agency relies on alleged precedent in the private sector; and cites 

the Council's decision in American Federation of Government Employees 

Local 12 (AFGE) and U.S. Department of Labor (Jaffee, Arbitrator),

\ j The arbitrator did not address himself to the question of whether 

such payments should be made retroactively, as was requested in the 

grievance.

187
FLRC No. 72A— 3 (July 31, 1973), Report No. 42, as establishing the 

principle in the federal sector that an arbitrator’s award should be 

vacated where the arbitrator has exceeded the scope of his authority.

We are of the opinion, however, that the agency’s petition does not present 

facts and circumstances to support its assertion that the arbitrator 

exceeded the scope of his authority. While the issue submitted to arbitration was described by the parties as being whether electroplaters are 

entitled to "high degree" (8%) environmental differential payments, the 

parties appear on the basis of the entire record to have intended to 

resolve the dispute which had arisen as to whether electroplaters are 

entitled to environmental differential payments. In this connection, 

the issue submitted to arbitration did not specifically deny the arbitrator the authority to determine whether something less than "high degree" 

differential payments would be appropriate .A/ Moreover, in the private 

sector, courts have recognized a policy in favor of allowing arbitrators 

considerable leeway in fashioning remedies .J,/ This policy is likewise 

applicable in the federal sector under section 2411.32 of the Council’s 

rules of procedure.

Further, the agency’s reliance on the Council’s decision in AFGE Local 12 

and U.S. Department of Labor, supra, as support for its first exception, 

is misplaced. In that case, the Coimcil held in essence that the arbitrator had exceeded his authority by granting contractual relief to nongrievants, as well as the grievant. That holding is inapposite to the 

present question of whether an arbitrator may properly award to a grievant 

relief which is of lesser degree than that specified in the submission 

agreement.

Accordingly, based on the foregoing, the agency’s petition for review does 

not furnish sufficient facts and circumstances to support the assertion in 

its first exception, as required by section 2411.32 of the C ouncil’s rules 

of procedure.

1 ! See I.B.E.W. Local 2130 v. Bally Case & Cooler Co., 232 F. Supp. 394 

(E.D. Pa. 1964). In that case, the submission agreement posed the question 

for resolution as being whether certain employees were discharged for just 

cause and whether there should be backpay. The arbitrator decided that 

there was no just cause for discharge, and went on to state that suspension 

of the employees was a proper discipline, even though the specific question 

of suspension was not submitted to him. The court held, however, that this 

fact did not mean that the arbitrator had exceeded his authority, and

the award, noting that the submission agreement "did not specifically deny to the arbitrator the power to consider whether there was just 

cause for suspension rather than discharge. ..."

See generally United Steelworkers of America v. Enterprise Wheel &

Car Corp., 363 U.S. 593 (1960) at p. 597, wherein the Court states that an 

arbitrator:

(Continued)

188
In its second exception, the agency contends that the arbitrator's award 

violates FPM Supplement 532-1, Section S8-7, and Appendix J to FPM 

Supplement 532-1. These provisions of the FPM deal with the payment of 

environmental differentials. Section S8-7 provides in part that "an 

environmental differential is paid to a wage employee who is exposed to a 

hazard, physical hardship, or working condition of an unusually severe 

nature listed under the categories in Appendix J. . . The agency 

argues that these FPM provisions require the arbitrator to make specific 

findings of fact as to what, if any, hazards, physical hardships or working 

conditions of an unusually severe nature the electroplaters in this case 

are exposed to in order to justify an award of "low degree" environmental 

differential pay; and that in view of his failure to make such findings, 

the activity would violate the FPM if it were to implement the award. The 

agency further asserts that such violations of the FPM would constitute a 

violation of section 12(a) of the O r d e r , V in that the arbitration proceeding in this case is pertinent to a "matter covered by the agreement," 

and as a result the arbitrator's award must, pursuant to section 12(a), 

comply with the provisions of the FPM. We must hold that the agency's 

petition does not present support for its contentions in this regard.

Various provisions of FPM Supplement 532-1, Section S8-7, address themselves to the role of the local installation or activity in the payment 

of environmental differentials. They provide as follows (entphas^s supplied)

b. Basis for environmental differential. These instructions provide 

the basis for (1) approving and paying environmental differentials 

to wage employees (full-time, part-time, or intermittent); (2) listing 

categories of situations in appendix J of this subchapter and specifying the differentials payable for each category listed; and 

(3) providing guidelines under each category to Identify the various 

degrees of hazard, physical hardships, and working conditions of an

(Continued)

. . . is to bring his informed judgment to bear in order to reach a 

fair solution of a problem. This is especially true when it comes 

to formulating remedies. There the need is for flexibility in 

meeting a wide variety of situations. The draftsmen may never have 

thought of what specific remedy should be available to meet a 

particular contingency.

4/ Section 12(a) of the Order provides, in pertinent part, as follows:

(a) in the administration of all matters covered by the agreement, 

officials and employees are governed by existing or future laws 

and the regulations of appropriate authorities, including policies 

set forth in the Federal Personnel Manual. ..."

189
unusually severe nature, by the use of examples for the categories 

listed in appendix J.

e. . . . When examples are listed under the categories in appendix J, 

these examples are illustrative only and are not intended to be 

exclusive of other exposures which may be encountered under the circumstances which describe the listed category.

g. Determining local situations when environmental differentials are 

payable. (1) Appendix J defines the categories of exposure for which 

the hazard, physical hardships, or working conditions are of such an 

unusual nature as to warrant environmental differentials, and gives 

examples of situations which are illustrative of the nature and degree 

of the particular hazard, physical hardship, or working condition 

involved in performing the category. The examples of the situations 

are not all inclusive but are intended to be illustrative only.

(2) Each installation or activity must evaluate its situation against 

the guidelines in appendix J to determine whether the local situation 

is covered by one or more of the defined categories.

(a) When the local situation is determined to be covered by one or 

more of the defined categories (even though not covered by a specific 

illustrative exanq>le), the authorized environmental differential is 

paid for the appropriate category.

(3) Nothing in this section shall preclude negotiations through the 

collective bargaining process for determining the coverage of additional local situations under appropriate categories in appendix J . . .

The agency alleged that the arbitrator was required by the broad guidelines 

in FPM Supplement 532-1, Section S8-7 and Appendix J to FPM Supplement 532-1 

to make specific findings of fact and failed to do so. Obviously, in the 

determination of local situations for which environmental differential is 

authorized the FPM must be complied with; however, with regard to the 

instant case, the agency does not advert to any specific FPM requirement 

to support its contention that the arbitrator must make specific findings 

of fact, nor does our research reveal the presence of any such requirement 

in the FPM.

We therefore find that the agency has not supported its contention that 

implementation of the award will violate the FPM, or derivatively, 

section 12(a) of the Order, and hold that the facts and circumstances 

described in the petition do not adequately support the allegations made 

in regard to the agency's second exception, as required by section 2411.32.

190
Accordingly, the agency's petition is denied because it fails to meet 

the requirements for review set forth in section 2411.32 of the Council's 

rules of procedure. Likewise, the agency's request for a stay is denied 

under section 2411.47(d) of the Council's rules. Finally, the agency's 

alternative request that the award be remanded to the arbitrator for 

clarification or for a hearing ^ novo is denied, since no persuasive 

reason has been advanced by the agency for such action.

By the Council.

lenry

Execut

Ftazier III U

Irector

cc: W. J. Smith 

AFGE

191
American Federation of Government Employees, Local 2677, and Office 

of Economic Opportunity (Kleeb, Arbitrator). The agency filed with 

the Council its petition for review of the arbitrator's award, w h ich 

award was served on the agency on July 12, 1974. Under the C o u n c i l’s 

rules the petition was due no later than August 5, 197A; however, 

the petition was not filed until August 6, 1974, and no extension 

of time for filing was either requested by the agency or granted by 

the Council. Likewise, no persuasive reason was advanced by the 

agency for waiving the time limits in this case.

Council action (September 20, 1974). Because the agency's petition 

was untimely filed, and apart from other considerations, the Council 

denied the petition for review.

FLRC NO. 74A-57

192
/ \ UNITED STATES

I I FEDERAL LABOR RELATIONS COUNCIL

'2/

1900 E STRETT. N.W. • WASHINGTON. D.C. 20415

September 20, 197A

Mr. Howard Toy 

Director of Personnel 

Office of Economic Opportunity 

1200 19th Street, NW. 

Washington, D.C, 20506

Re: American Federation of Government 

Employees. Local 2677, and Office 

of Economic Opportunity (Kleeb, 

Arbitrator), FLRC No. 74A-57

Dear Mr. Toy:

The Council has carefully considered your' petition, and the union's 

opposition thereto, for review of the arbitrator's award filed in the 

above-entitled case. For the reasons indicated below, the Council has 

determined that your petition was untimely filed under the Council's rules 

of procedure and cannot be accepted for review.

Section 2411.33(b) of the Council's rules provides that a petition for 

review must be filed within 20 days from the date the arbitrator's award 

was served upon the party seeking review. Section 2411.46(c) provides 

that the date of service shall be the date the award was deposited in the 

mail or delivered in person, as the case may be, and section 2411.45(c) 

provides that, where such service was made by mail, 3 days shall be added 

to the time period within which the petition must be filed. Additionally, 

under section 2411.45(a), any petition filed must be received in the 

Council's office before the close of business of the last day of the 

prescribed time period. In computing these time periods, section 2411.45(b) 

provides that if the last day for filing a petition falls on a Saturday, 

Sunday, or Federal legal holiday the period for filing shall run until 

the end of the next day which is not a Saturday, Sunday', or Federal legal 

holiday.

According to the record before the Council, the arbitrator's award in 

this case was mailed to, and thereby served uporv your agency on July 12, 

1974. Accordingly, under the above rules, your petition for review was due 

in the Council's office on or before the close of business on August 5,

1974. However, your petition was not received by the Council until 

August 6, 1974, and no extension of time was either requested by your 

agency or granted by the Council under section 2411.45(d) of the Council's

193
rules. Likewise no persuasive reason has been advanced for waiving the 

time limits in this case.

Accordingly, as your petition was untimely filed, and apart from other 

considerations, your petition for review is denied.

By the Council.

cc: P. Kete

National Council of OEO 

Locals, Local 2677

194
Naval Rework Facility, Naval Air Station^ Jacksonville, Florida, and 

National Association of Government Employees, Local R5-82 (Goodman, 

A r b i t r a t o r ) . The arbitrator In this case determined that the agency 

violated the collective bargaining agreement by the manner In which 

It scheduled wor k to avoid overtime; and directed that the agency 

compensate the grlevants for the four hours additional pay they would 

have received had they worked such overtime. The Council accepted 

the agency's petition for review Insofar as It challenged the legality 

of the additional pay for the grlevants In the remedy portion of the 

award (Report No. 45).

Council action (September 24, 1974). Based on the advice of the Civil 

Service Commission, which agency Is authorized under 5 U.S.C. § 5548 

to prescribe regulations to Implement statutory provisions relating 

to premium pay. Including holiday and overtime pay, the Council held 

that the remedy portion of the award violates applicable law and 

appropriate regulation. Accordingly, pursuant to section 2411.37(b) 

of the Council's rules (5 CFR 2411.37(b)), the Council'modified the 

arbitrator's award by striking so much thereof as directed the payment 

of additional compensation to the grlevants.

FLRC n o . 73A-46

195
UNITED STATES 

FEDERAL LABOR RELATIONS COUNCIL 

WASHINGTON, D.C. 20415

Naval Rework Facility, Naval Air Station,

Jacksonville, Florida

FLRC No. 73A-46

and

National Association of Government 

Employees, Local R5-82

DECISION OF APPEAL FROM ARBITRATION AWARD 

Background of Case

This appeal arose by reason of the remedy awarded by the arbitrator as a 

result of his finding that the agency had violated Article XII, Section 4, 

of the parties' negotiated agreement.

Article XII, Section 4, provides;

Employees will be required to work on a holiday if 

necessary in order to effectively accomplish the mission 

of the facility; however, such holiday work will not be 

scheduled to avoid overtime.

The arbitrator found that employees of certain repair shops at the Naval 

Air Rework Facility had been scheduled to work on an overtime basis on 

Saturday, January 27, 1973, in addition to the normal Monday through 

Friday workweek. Due to the death of former President Lyndon B. Johnson, 

the President declared Thursday, January 25, a national holiday.JL^

Following the designation of the national holiday, 56 employees were 

ordered to work on the holiday (January 25) and only 28 on the following 

Saturday (January 27).

Article XII, Section 1, of the negotiated agreement provides:

Employees shall be entitled to holiday benefits consistent 

with applicable regulations, in connection with all 

federal holidays now prescribed by law and any that may 

be added by law. Holidays designated by Executive Order 

shall be observed as legal holidays.

196
The union grieved, contending that m a n a g e m e n t’s action by working certain 

employees on the holiday but not on the following Saturday was in violation of Article XII, Section 4, of the agreement, which, as already 

indicated, provides that "holiday work will not be scheduled to avoid 

overtime.” The activity responded that 56 employees had been scheduled 

to work on both dates, that all 56 worked on Thursday as scheduled, but 

that Saturday overtime work for 28 of these employees was cancelled on 

Friday, January 26, because of materiel shortages.

The dispute ultimately went to arbitration. The arbitrator found that 

while "there does not appear to be an absolutely clear indication of 

Navy intent on this matter . . . the acts of the Navy did, in fact, avoid 

overtime pay." Consequently, he sustained the union's grievance. As a 

remedy, he directed that, as requested by the union, "all personnel who 

worked on Thursday, January 25, 1973, and were not allowed to work on 

Saturday, January 27, 1973, are to be paid for four additional hours.

Agency's Appeal to the Council

The agency filed a petition for review of the remedy portion of the 

arbitrator's award.l' Under section 2411.32 of the Council's rules of 

procedure, the Council accepted the petition for review of one of the 

agency's exceptions, namely, that the arbitrator’s award, which directs 

compensation be paid to employees for overtime which they had not actually 

worked, would be unlawful under applicable pay statutes as interpreted 

[and cited] by the Comptroller General .A' The Council also granted the 

agency's request for a stay pending the Council's determination of the 

instant appeal.

2/

— The 28 employees who worked on the holiday but not on Saturday had 

received 48 hours pay (i.e., 5 days of work plus 8 hours of holiday pay 

at straight time) as compared with the 52 hours pay they would have 

received under the cancelled schedule (i.e., 4 days of work and 8 hours 

of holiday pay at straight time plus 8 hours of Saturday work at the 

overtime rate of time and one-half.)

3/ — The agency indicated that it accepted the arbitrator’s conclusion 

that it had, in fact, acted to avoid overtime pay. It also admitted 

that had the 28 employees been properly scheduled, they would have 

received 52 hours pay for 40 hours of work instead of 48 hours pay for 

the 40 hours actually worked.

— ^ The agency relied upon the following decisions of the Comptroller 

General as standing for the proposition that employees may not be compensated for overtime work where they do not actually perform the work 

during the overtime period: 42 Comp. Gen. 195; 45 Comp. Gen. 710;

46 Comp. Gen. 217; and B-175867 of June 19, 1972.

197
The union filed a brief; the agency relied on the reasoning set forth in 

its petition for review.

Opinion

Section 2411.37(a) of the C ouncil’s rules of procedure provides, in 

pertinent part, that "An award of an arbitrator shall be modified, set 

aside in whole or in part, or remanded only on grounds that the award 

violates applicable law, appropriate regulation . . . ."

The question before the Council is whether the remedy portion of the 

arbitrator’s award, which grants 4 hours pay to personnel who worked on 

Thursday and were not allowed to work on Saturday, to compensate for 

the difference between the 48 hours pay they received for 40 hours of 

work (i.e., 5 days of work plus 8 hours holiday pay at straight time) 

and 52 hours pay they would have received for 40 hours of work under the 

cancelled schedule (i.e., 4 days of work and 8 hours holiday pay at 

straight time, plus 8 hours of work on Saturday at the overtime rate of 

time and one-half), violates applicable law or implementing regulations.

Since the United States Civil Service Commission is authorized, under 

5 U.S.C. § 5548, to prescribe regulations to implement statutory provisions relating to premium pay, including holiday and overtime pay, 

that agency was requested, in accordance with Council practice, for an 

interpretation of the relevant statutes and implementing CSC regulations 

as they pertain to the arbitrator's award of overtime pay in this case. 

The Civil Service Commission replied in relevant part as follows:

Your letter . . . requested an interpretation of Civil 

Service Commission regulations as they relate to the 

arbitration award in the case of Naval Rework Facility,

Naval Air Station, Jacksonville, Florida, and National 

Association of Government Employees, Local R5-82 (Goodman, 

Arbitrator), FLRC No. 73A-46.

The arbitrator determined that the agency had avoided 

overtime pay in violation of the provision of the agreement 

that "holiday work will not be scheduled to avoid overtime."

As a remedy, the arbitrator awarded four hours pay to all 

personnel who worked on a Thursday holiday and were not 

allowed to work the following Saturday, to compensate for 

the difference between the pay they would have received had 

they worked on that Saturday instead of the Thursday holiday 

and the pay they received for working on the Thursday 

holiday but not on the following Saturday (an otherwise 

overtime d a y ) .

The Comptroller General has consistently ruled that the 

language of the law (title 5, United States Code 5542, and 

title 5, use 5544) and CSC instructions (5 CFR 550.103,

198
550.111, and FPM Supplement 532-1, S8-4b) is interpreted 

as requiring actual performance of work in order to be 

entitled to overtime pay.

The Comptroller General Decisions cited by Navy are all 

valid references in that they all essentially say "no 

work, no pay." The decision found in 42 Comp. Gen. 195 

was cited in the decision found in 46 id. 217, (cited by 

Navy), and also was again cited in 47 id. 359. The unpublished decision, B-175867, June 19, 1972, relates to a 

situation where a grieving employee was claiming overtime 

pay as the result of a violation of a union contract, and 

the Comptroller General again ruled "no work, no pay," in 

spite of the fact that the contract may have been violated.

In summary, the agency is prevented by law, regulations, 

and interpretations thereof, from implementing the arbitrator's av'ard of overtime pay.

Based upon the foregoing interpretation by the Civil Service Commission, 

we must conclude that the remedy portion of the arbitrator's award is in 

violation of applicable law and appropriate regulation. We believe that 

the award must therefore be modified by striking that portion awarding 

four additional hours pay to those personnel who worked on Thursday, 

January 25, 1973, and were not allowed to work on Saturday, January 27, 

1973.

Conclusion

For the foregoing reasons, we find that the remedy portion of the 

arbitrator's award violates applicable law and appropriate regulation. 

Accordingly, purstiant to section 2411.37(b) of the Council's rules of 

procedure, w e modify the award of the arbitrator by striking the last 

sentence thereof which reads;

All personnel who worked on Thursday, January 25, 1973, 

and were not allowed to work on Saturday, January 27,

1973, are to be paid for four additional hours.

As so modified, the award is sustained and the stay is vacated.

By the Council.

Henry B./<Prazier III 

E x e c u t i v » ^ i r e c t o r

Issued: September 24, 1974

199
American Federation of Government Employees, Local 2449 and Headquarters, 

Defense Supply Agency and PSA Field Activities, Cameron Station, 

Alexandria, Virginia (Jaffee, Arbitrator). The Council accepted the 

agency's petition for review In this case, which disputed the legality 

of the arbitrator's award of retroactive promotion of the grievant to 

GS-13, step 10, with backpay (Report No. 47).

Council action (September ^4, 1974)- Based on the advice of the Civil 

Service Commission, which agency is authorized to prescribe regulations to implement the statutes here involved, the Council decided that 

the arbitrator's award. Insofar as it directs the retroactive promotion 

of the grievant to GS-13, step 10, with backpay, violates applicable 

law and appropriate regulations. Therefore, pursuant to section 2411.37(b) 

of the Council's rules of procedure (5 CFR 2411.37(b)), the Council 

modified the award consistent with its decision.

FLRC NO. 73A-51

200
UNITED STATES 

FEDERAL LABOR RELATIONS COUNCIL 

WASHINGTON, D.C. 20415

American Federation of Government 

Employees, Local 2449

and FLRC No. 73A-51

Headquarters, Defense Supply Agency 

and DSA Field Activities 

Cameron Station 

Alexandria, Virginia

DECISION ON APPEAL FROM ARBITRATION AWARD

Background of Case

Based on the entire record in the case, the circumstances of the 

case appear as follows:

In May 1969, Russell D. Mikel, Management Technician, GS-12, applied 

for each of two GS-13 positions, but was found not to meet the 

eligibility requirements. As to one of these positions, the agency 

conceded that Mikel had not been referred to the selecting official 

and, hence, had been denied an opportunity for consideration in 

competition with other qualified candidates. Mikel filed,a grievance 

and, as corrective action, the agency directed that Mikel be given 

"priority consideration"!.' for the next position for which he was 

qualified. Subsequently, Mikel was considered for another GS-13 

vacancy; however, he was not considered by the selecting official 

because he had not been ranked among the best qualified. Mikel 

grieved, and the agency agreed with Mikel that since the promotion 

panel did not rank Mikel among the best qualified, indeed "priority 

consideration" was not afforded for this particular vacancy. On 

January 30, 1970, the agency directed that Mikel receive "priority 

consideration" for the first two vacancies for which he was basically 

qualified.

1/ "Priority consideration*' and the treatment of employees entitled 

thereto, are covered by Part II, Article Q, Section 10, of the 

collective bargaining agreement, which provides;

PART II - ARTICLE Q. PROMOTIONS AND FILLING POSITION VACANCIES

Section 1 0 . Employees entitled to priority consideration as 

defined in the FPM will receive such consideration including a 

personal interview prior to official announcement . . . of the 

vacancy. Nonselection of an employee having the right to 

priority consideration must be justified in writing. An employee

(Continued)

201
On February 5, 1973, Mikel filed a grievance grounded, as the arbitrator concluded, on two basic claims: (1) that his position had 

been incorrectly classified, and (2) that he had not been accorded 

"priority consideration" for a promotion. The grievance was submitted 

to arbitration.

The Arbitrator's Award

The arbitrator determined in his opinion that the second claim in the 

Mikel grievance, relating to "priority consideration," was arbitrable, 

but the first claim was not .— 'As to the merits of the second claim, 

the arbitrator determined that the agency on several occasions had not 

accorded Mikel the "priority consideration" for promotion required by 

Part II, Article Q, Section 10, of the agreement and that, had he been 

accorded such consideration, Mikel would have been promoted to several 

of the GS-13 positions he sought. As his award, the arbitrator 

directed that Mikel be "upgraded" to GS-13, step 10, retroactive to 

July 1, 1969, and be made whole accordingly. The arbitrator further 

directed that "any later action by way of promotion" be in conformance 

with all legal requirements, and that any dispute between the parties as 

to compliance with the award would be subject to terminal arbitration.

(Continued)

with such rights who is nonselected shall automatically be 

included on all promotion registers for which he is 

qualified, developed as a result of official announcement, 

and will be rated and ranked by the panel in the same 

manner as all other applicants.

FPM ch. 335, sec. 6-4c, provides:

c. Action involving nonselected employees.

(2) If the corrective action did not include vacating the 

position, an employee who was not promoted or given proper 

consideration because of the violation is to be given 

priority consideration for the next appropriate vacancy 

before candidates under a new promotion or other placement 

action are considered. An employee may be selected on the 

basis of this consideration as an exception to competitive 

promotion procedures (see section 4 -3f).

The arbitrator determined that Mikel's first claim concerning the 

classification of his position was "beyond arbitral jurisdiction in 

view of the procedures availed of by Mikel via his appeals to the Civil 

Service Commission and its disposition of the appeals."

202
The agency disputed the legality of the award as to (1) backpay to 

July 1, 1969, and (2) starting Mikel at GS-13, step 10, on that date.^^

The agency requested terminal arbitration of this dispute, and the 

matter was submitted to the arbitrator. The arbitrator issued a 

supplemental award in which he determined that (1) an award that grants 

backpay in such matters is legal, and (2) that the remedy of starting 

Mikel at GS-13, step 10, as of July 1, 1969, is legal. Accordingly, 

the arbitrator reaffirmed his earlier award.

Agency's Appeal to the Council

The agency filed a petition for review of the arbitrator's award, as 

reaffirmed by his supplemental award, with the Council, alleging

(1) that the award of retroactive promotion with backpay to July 1,

1969, would violate the Back Pay Act (5 U.S.C. § 5596) as implemented 

by Civil Service Commission regulations and as interpreted by the 

Comptroller General, and (2) the award of the promotion to GS-13, 

step 10, would violate the law applicable to the fixing of pay on 

promotion (5 U.S.C. § 5334(b)). The Council accepted the agency's 

petition for review on these issues. The Council also granted the 

agency's request for a stay pending the Council's determination of the 

instant appeal. The union filed a brief and the agency relied on its 

brief previously filed in support of the petition for review.

Opinion

Section 2411.37(a) of the Council's rules of procedure provides, in 

pertinent part, that "An award of an arbitrator shall be modified, set 

aside in whole or in part, or remanded . . . on the grounds that the 

award violates applicable law, appropriate regulation . . . ."

As previously stated, the agency contends that the arbitrator's award 

of retroactive promotion with backpay to July 1, 1969, would violate 

the Back Pay Act (5 U.S.C. § 5596) as implemented by Civil Service 

Commission regulations and as interpreted by the Comptroller General, 

and that his award of the promotion to GS-13^ step 10, would violate the 

law applicable to the fixing of pay on promotion (5 U.S.C. § 5334(b)).

The Civil Service Commission is authorized to prescribe regulations to 

implement the statutes here involved .A/Therefore, that agency was 

requested, in accordance with Council practice, for an interpretation 

of the statutes and the implementing regulations of the Civil Service 

Commission as they pertain to the questions presented in the instant case.

The Arbitrator's Supplemental Award

V The agency contends that, since on July 1, 1969, the grievant was a 

GS-12, step 7, the proper grade and step to which he could be promoted 

at that time was GS-13, step 4. After receipt of the award, the agency 

promoted Mikel to GS-13, step 5, effective June 17, 1973.

4/ 5 U.S.C. §§ 5334 and 5596(c).

203
This letter is in response to your request of January 24, 1974, 

for an interpretation of 5 U.S.C. 5596 and 5 U.S.C. 5334, and the 

implementing Civil Service Commission regulations as they apply 

to the arbitrator's award in the case of the American Federation 

of Government Employees, Local 2449. and Headquarters, Defense 

Supply Agency, and DSA Field Activities, Cameron Station,

Alexandria, Virginia, (Jaffee, Arbitrator), FLRC No. 73A-51.

The arbitrator found the agency in violation of the negotiated 

agreement when it failed to give the grievant, Russell D. Mikel, 

priority consideration for promotion. The a r b itrator’s award 

directed the agency to promote the grievant to grade GS-13, and 

fix the pay at step 10 of the grade, retroactively to July 1, 1969. 

Your letter states that the question is whether the award violates 

5 U.S.C. 5596, 5 U.S.C. 5334, and the implementing CSC regulations.

It has been consistently held that after all discretionary acts 

that are required to effect a personnel action have been taken, and 

nothing remains to be done except ministerial and nondiscretionary 

acts, the personnel action is completed. In other words, the 

appointment power is exhausted when the last discretionary act is 

completed; the appointment is then irrevocable, and not subject to 

reconsideration. (Marbury v. Madison, (1803), 1 Cranch 137;

U. S. V. Le Baron, (1856), 19 How. 73; State ex rel Coogan v. Barbour, 

(1885), 22 A. 686; Witherspoon v. State, (1925), 103 S. 134; Board 

of Education v. McChesney, (1930), 32 SW2d 26; U. S. v. Smith,

(1932), 286 U. S. 6; State ex rel Calderwood v. Miller, (1900),

57 NE 227; State ex rel Jewett v. Satti, (1947), 54 A . 2d 272).

However, in the instant case, there is no evidence that all 

discretionary acts were completed.

Technically, the question is not whether the award violates 

5 U.S.C. 5596, since there was no "unjustified or unwarranted 

personnel action taken." Section 550.803(e) of the Coiranission’s 

regulations defines personnel action for this purpose as being 

any action by an authorized official of an agency which results in 

the withdrawal or deduction of all or any part of the pay, allowances, or differentials of an employee. The Comptroller General, 

in his decision at 48 Comp. Gen. 502, stated "that a positive 

administrative action adverse to the employee must be the basis 

for back pay rather than an omission or failure to take action for 

an improper reason."

Rather, the question is whether there is a basis for the agency 

to approve a promotion to be effective retroactively. The 

Comptroller General has ruled on numerous occasions that promotions may not be made to take effect retroactively, except in

The Commission replied as follows:

204
cases where through administrative error, such as clerical 

error resulting in the delayed typing of the personnel action, 

a personnel action was not effected as originally intended.

See 3 Comp. Gen. 559, cited at 45 id. 99. Also, see B-178156,

June 5, 1973, which will be published in Volume 52 at page 631, 

and B-179833, January 4, 1974, which will be published in 

Volume 53; and unpublished decisions B-180046, April 11, 1974; 

B-180056, May 28, 1974; and B-179323, May 16, 1974.

The Comptroller General and the Court of Claims have repeatedly 

ruled that a Federal employee is only entitled to the salary 

of the position to which he has been officially appointed.

(B-178156, June 5, 1973; Tierney v. United States, 168 Ct.

Cl. 77 (1964); Nordstrom v. United States, 177 Ct. Cl. 818 

(1966); Bielic v. United States, 197 Ct. Cl. 550, 560 (1973)).

The Comptroller General has also ruled that a personnel action 

may not be made retroactively effective so as to increase the 

right of an employee to compensation. (See 39 Comp. Gen. 583 

and 40 id. 207).

In its second exception to the award, the agency alleged that 

it may not fix pay on promotion at a rate which is not in 

accordance wit h law and regulation. In the instant case, the 

proper step would have been step 4, if the promotion could 

have been legally effected retroactively to July 1, 1969; however, neither citation would have permitted the agency to fix 

the pay at the step 10.

For the reasons set forth above, the arbitrator's award in this 

case may not be implemented.

Based on the foregoing response by the Civil Service Commission, we 

find that the arbitrator's award, insofar as it directs the retroactive 

promotion of the grievant to GS-13, step 10, with backpay, violates 

applicable law and appropriate regulations. Therefore, the subject 

portions of the arbitrator's award cannot be permitted to stand.

Conclusion

For the foregoing reasons, we find that the arbitrator's award, insofar as it directed that the grievant be retroactively promoted to GS-13, 

step 10, to July 1, 1969, with backpay, violates applicable law and 

appropriate regulation. Accordingly, pursuant to section 2411.37(b) 

of the Coimcil*s rules of procedure, we modify the award of the

205
arbitrator by striking the first sentence thereof which reads:

Mikel is to be upgraded to the GS-13 level. Step 10, 

retroactive to July 1, 1969, and be made whole 

accordingly.

As so modified, the award is sustained and the stay is vacated 

By the Council.

Henry

Execut

Issued; September 24, 1974

206
A FGE (National Border Patrol Council and National Council of Immigration 

and Naturalization Service Locals) and Immigration and Naturalization 

S e r v i c e ♦ The dispute in this case concerned the negotiability under 

the Order of union proposals which would; (1) Provide that grievances 

which are subject to the negotiated grievance procedure shall conform 

to the same procedural requirements as pertain to adverse actions;

(2) establish ratios of inspectors to passengers during overtime assignments; (3) proscribe the overtime use of border patrol agents on alien 

bus movements when detention guards are readily available; and (4) prohibit the assignment of noninspection duties to I&NS personnel called 

in for Inspection work on an overtime basis.

Council action (September 30, 1974). As to (1), the Council, based 

principally en.iltsdeelaions in the Elmendorf case, FLRC No. 72A-10, 

and the Louisville Naval Ordnance case, FLRC No. 73A-21, and on relevant 

provisions in sections 12(a) and 13 of the Order, found that the union's 

proposal Is negotiable. With respect to (2), the Council ruled that 

the proposal is excluded from the agency's obligation to negotiate 

under section 11(b) of the Order since the proposal would materially 

effect and is thereby Integrally related to the numbers of employees 

assigned to inspection functions by the agency and since no different 

result obtains under section 11(b) simply because the project or tour 

of duty Is performed in an overtime status. Finally, as to (3) and (4), 

the Council, based on its decision, among others, in the Griffiss case, 

FLRC No. 71A-30, and its conclusion as to overtime status in item 2, 

above, held that the union's proposals are outside the agency's obligation to bargain under section 11(b) of the Order. Accordingly, the 

agency head's determinations of nonnegotiability were set aside in part 

and sustained in part.

FLRC NO. 73A-25

207
UNITED STATES 

FEDERAL LABOR RELATIONS COUNCIL 

WASHINGTON, D.C. 20415

AFGE (National Border Patrol Cotincil 

and National Council of Immigration 

and Naturalizatioji Seirvice Locals)

and FLRC No. 73A-25

Immigration and Naturalization Service

DECISION ON NEGOTIABILITY ISSUES 

Backgrotind of Case

The negotiability issues in this case arose during national negotiations 

of a multi-unit agreement between the Immigration and Naturalization 

Service (INS) and the American Federation of Government Employees (AFGE), 

covering border patrol and other Immigration and Naturalization Service 

personnel. Specifically, the dispute involved AFGE proposals (detailed 

hereinafter) relating to the processing of grievances over disciplinary 

actions (Article 10, Section K); staffing ratios (Article 21, Section A); 

and the proscribed assignment of certain personnel functions (Article 21, 

Sections B and E).

Upon referral, the Department of Justice determined that the subject union 

proposals were nonnegotiable under the Order. AFGE appealed to the Council, 

disagreeing with the agency determination; and the agency filed a statement of position in support of its determination.JL'

Opinion

The union proposals in dispute will be separately considered below.

1. Article 10, Section K. The union proposal reads as follows:

_!/ The union's appeal initially covered a substantial number of other 

proposals, but the negotiability issues relating to those proposals were 

resolved by the parties and are no longer before the Council for decision 

in this case.

208
Disciplinary Actions

Section K. All disciplinary or adverse actions will be 

processed In accordance with applicable CSC and Justice 

regulations and employees shall be afforded all rights 

and privileges provided therein.

The agency contends that the proposal would subject adverse actions, for 

which statutory appeals procedures e x i s t , to the negotiated grievance > 

procedure provided in the agreement, and that the proposal is therefore 

nonnegotiable as violative of section 13(a) of the Order

However, the union asserts, in effect, that the agency has misinterpreted 

the proposal in question, and that the proposal merely Intends that the 

processing of those grievances which are subject to the negotiated grievance procedure shall conform to the same procedural requirements as pertain 

to adverse actions. More particularly, the union states:

In the Federal sector discipline is divided into two 

categories [sic], those that are appealed under the 

grievance machinery of either the agency's procedure or 

the negotiated procedure and those disciplinary actions 

that are processed under the provisions of FPM Chapters 

751 and 752 and Executive Order 10987. Discipline including oral admonishments, written reprimands and suspensions 

up to and including 30 days are processed through the 

grievance machinery while suspensions of more than 30 days, 

discharges and reduction in rank or grade are processed 

through the adverse actions procedures outlined in FP M 

Chapter 752 ....

In Section K the Union is attempting to contractually 

apply all the procedural aspects of the Civil Service 

Commission and Justice Department regulations for processing disciplinary actions for bargaining unit employees 

when these employees are processing grievances under the 

provisions of the negotiated grievance procedure ....

These would include prior notice, rights to representation, 

time limits and access to witnesses.

Article 10

I j Section 13(a) of the Order provides in relevant part;

Sec. 13. Grievance and arbitration procedures. (a)

An agreement between an agency and a labor organization 

shall provide a procedure, applicable only to the unit, 

for the consideration of grlevandes over the interpretation or application of the agreement. A negotiated 

grievance procedure may not cover any other matters, 

including matters for which statutory appeals procedures 

exist ....

209
The Justice Department states that the Union's proposal 

would make Its actions under the statutory procedures 

subject to the negotiated grievance procedure. This 

allegation cannot be substantiated. As stated above, 

the procedures ^or appealing discipline are divided 

into two catagories; and the Union addresses itself 

to both procedures in Section N. Parts 1 and 2 of 

Section N are the procedures for appealing disciplinary 

actions of suspensions of 30 days or less and letters 

of reprimand under the negotiated procedure. Part 3 

of Section N is the procedure for processing disciplinary 

actions that are suspensions of more than 30 days, discharge and reduction in rank or grade . . . in conformity 

with FPM Chapter 752 and Executive Order 10987. [Emphasis 

added.]

We find merit in the u nion’s contentions that its proposal is negotiable, 

in the circumstances of this case.

As the Council held in the Elmendorf case,-^ the nature and scope of the 

negotiated grievance procedures are to be negotiated by the parties subject to the explicit limitations prescribed in the Order. While the 

agency maintains that the u n i o n’s proposal falls within such an explicit 

limitation in section 13(a) of the Order, namely the proscribed coverage 

under the negotiated grievance procedure of adverse actions which are 

subject to statutory appeals procedures, we cannot agree w ith this position. For it is apparent, from the context of the proposal and from the 

union's expressed intent as to the meaning of its own proposal (and as 

we therefore so construe the proposal for purposes of this decisionr-0» 

that grievances tmder the negotiated grievance procedure will be processed 

in accordance with the procedural requirements contained in CSC and 

Justice regulations governing the processing of adverse actions; however, 

no matter for which statutory appeals procedures exist, including adverse 

actions, would thereby be covered by the negotiated grievance procedure.

Moreover, any ambiguity in the union's proposal must be considered in the 

light of other provisions of the Order. As we recently noted in this 

regard in the Louisville Naval Ordnance case;— '

2/ American Federation of Government Employees, Local 1668 and Elmendorf 

Air Force Base (Wildwood Air Force Station), Alaska, FLRC No. 72A-10 

(May 15, 1973), Report No. 38.

V See AFGE Local 1923 and Social Security Administration Headquarters 

Bureaus and Offices, Baltimore, Maryland, FLRC No. 71A-22 (May 23, 1973), 

Report No. 39, at pp. 6-7 of decision.

V Local Lodge 830, International Association of Machinists and Aerospace 

Workers, and Louisville Naval Ordnance Station, Department of the Navy, 

FLRC No. 73A-21 (January 31, 1974), Report No. 48, at p. 8 of decision.

210
. . . under section 12(a) of the Order, the provisions 

of which must be Included In every agreement, the administration of any agreement entered into by the parties would 

be subject to existing or future laws and regulations of 

appropriate authorities, which would preclude coverage under 

the negotiated grievance procedure of matters covered by 

present or future statutory appeals procedures. Additionally, 

as to any questions which might arise concerning whether a 

grievance is properly subject to the negotiated grievance 

procedure or is excepted by reason of a statutory appeals 

procedure, the Council indicated in the Elmendorf decision 

(at p. 6):

The Assistant Secretary of Labor is authorized to 

decide . . . questions of grievabllity subject to 

appellate review by the Coimcll. In addition, the 

Council may review arbitration awards and set aside 

awards which it finds to be in violation of applicable law, appropriate regulation, or the Order.

[Footnotes omitted.]

Accordingly, we overrule the agency's determination that Article 10, Section K, 

as proposed by the union is nonnegotiable.

2. Article 21, Section A. This proposal of the union reads as follows 

(underscoring indicates provisions in dispute);

Overtiaie, night, Sund«3^‘and Holiday assignments wlfehlti a 

station, and within the employees regularly assigned duties 

will be distributed equitably among those employees qualified 

to perform the work. For this purpose ’equitable distribution’ 

shall mean equal periods (1/2 day = 1 period) of overtime for 

all participating employees computed by the day- To assure 

Implementation of this section at sea and airports the Agency 

agrees to the following staffing ratios; All Citizen Passengers - 

1 Inspector to 40 passengers; Allen and Citizen Passengers - 

1 Inspector to 30 passengers; All Alien Passengers - 1 Inspector 

to 20 passengers. Supervisors shall not assign premium work as 

a reward or penalty but solely in accordance with the agen c y’s 

need. Complaints or disagreements on the distribution of 

premium w ork shall be processed in accordance with the negotiated 

grievance procedure.

The agency asserts that the u n i o n’s proposal would establish the number of 

Inspectors to be called out for overtime inspection assignments, based on

211
the numbers and types of passengers to be Inspected, and therefore concerns 

the agency’s staffing patterns which are outside the agency's obligation 

to negotiate under section 11(b) of the Order.^/

The union denies that Its proposal Impacts on staffing by the agency.

Rather, according to the union, the language In dispute merely relates 

to production standards under which Inspectors perform their duties while 

in an overtime status and is not an attempt to increase staffing by the 

agency, since it Involves only employees assigned to overtime work.

We cannot agree with the position of the union. It is obvious that the 

ratios of Inspectors to passengers sought to be established in the union's 

proposal would materially effect, and are thereby Integrally related to, the 

numbers o-f eaployeea assigned to sea and airport inspection functions by the 

agency. Section 11(b) of the Order expressly provides that the numbers 

of employees so assigned to a work project or tour of duty are outside 

the agency's obligation to bargain. And, as the Council held in the 

Charleston Naval Shipyard case, a proposal which "is integrally related 

to the numbers of employees that the activity might assign to particular 

tours of duty" falls within the meaning of section 11(b).— '

Contrary to the union's contentions, nothing in section 11(b), its "legislative history," or the Council's decisions thereon, requires that any different result obtain simply because the project or tour of duty is performed 

In an overtime status. Instead of during normal working hours.

We therefore find that the disputed provisions in Article 21, Section A, 

of the union's proposal are excluded from the agency's obligation to bargain 

under section 11(b) of the Order.

3. Article 21, Section B. This section, as proposed by the union, provides:

The agency agrees to continue its current policy of not 

using Border Patrol Agents on alien bus movements when 

Detention Guards are readily available.

_6/ Section 11(b) of the Order provides in pertinent part:

. . . the obligation to meet and confer does not Include 

matters with respect to the mission of an agency; its 

budget; its organization; the number of employees; and 

the numbers, types, and grades of positions or employees 

assigned to an organizational unit, w o r k project or tour 

of duty; the technology of performing its work; or its 

internal security practices .... [Emphasis added.]

Tj Federal Employees Metal Trades Council of Charleston, AFL-CIO and 

Charleston Naval Shipyard, Charleston, South Carolina, FLRC No. 72A-35 

(June 29, 1973), Report No. 41, at p. 5 of decision.

212
The agency contends, among other things, that the proposal concerns the 

assignment of specific duties to Its employees and is therefore outside 

the agency's obligation to bargain under section 11(b) of the Order.

The union argues, however, that Its proposal recognizes the agency's 

authority to assign border patrol agents to alien bus movements and 

merely establishes a "procedure" for making such overtime assignment 

of duties, namely, when detention guards are not readily available, which 

procedure does not conflict with section 11(b). We find that the u n i o n’s 

position is without merit.

As the Council held in the Griffiss case,— / the specific duties assigned 

to particular positions or employees, i.e. the job content, are "excluded 

from the obligation to bargain under the words 'organization* and 'numbers, 

types, and grades of positions or employees assigned to an organizational 

unit, w ork project or tour of duty' in section 11(b) of the Order." Such 

exception from the obligation to bargain vinder section 11(b) applies not 

only to a proposal which would totally proscribe the assignment of specific 

duties to particular types of employees, but also to a proposal which, as 

here, would prevent the agency from assigning such duties unless certain 

conditions exist.

While, as already mentioned, the union claims that the condition attached 

to the assignment of alien bus duties to border patrol agents is merely 

a "procedure" which is negotiable, the subject condition (namely, when 

detention guards are unavailable) plainly imposes limitations on which 

types of positions or employees will actually perform the duties Involved. 

Such a limitation on the agency's reserved authority to assign duties 

falls outside the agency's obligation to bargain under section 11(b),— ' 

and, as discussed under item 2 above, this conclusion obtains regardless 

of whether the w ork involved is performed in an overtime status rather 

than during ordinary working hours.

Our decision does not» of course* preclude negotiation by the parties on 

the policies or procedures to be applied by the agency in the selection

1/ International Association of Fire Fighters. Local F-111. and Griffiss 

Air Force Base, Rome, N . Y . . FLRC No. 71A-30 (April 19, 1973), Report 

No. 36, at p. 10 of decision.

_9/ See, e.g., American Federation of Government Employees Local 1966 and 

Veterans Administration Hospital, Lebanon, Pennsylvania, FLRC No. 72A-41 

(December 12, 1973), Report No. 46, at pp. 8-9 of decision. In that case, 

the Council held that a proposal which would prohibit the assignment of 

autopsy duties to staff physicians "when there is a pathologist employed 

by the hospital" is excepted from the agency's obligation to bargain imder 

section 11(b) of the Order.

10/ C f . American Federation of Government Employees Local 997 and Veterans 

Administration Hospital, Montgomery. Alabama, FLRC No. 73A-22 (January 31, 

1974), Report No. 48, at pp. 1-4 of decision.

213
of individual employees for assignment to particular shifts or to overtime 

status.— ' We here decide only that the union proposal which would constrict the agency's assignment of specific duties to particular types of 

positions or employees is excepted from the agency's obligation to bargain 

under section 11(b) of the Order.i?.'

Accordingly, we agree with the agency that the union's proposal is nonnegotiable.

4. Article 21. Section E. The final union proposal in dispute reads as 

follows:

Immigration Officers and employees of the Immigration and 

Naturalization Service who perform on an overtime basis 

inspections of persons and vehicles entering the United 

States will not be required to perform non-inspectional 

duties including, but not limited to, the adjudication of 

various I&NS petitions and applications, or clerical and 

custodial type duties. The work hours of Immigration 

inspectors and employees of I&NS on Sundays or Holidays 

shall commence with the first anticipated entry, or arrival, 

of a person or vehicle and continue for not more than 

eight continuous hours if anticipated inspections are 

continuous.

The agency asserts, in the main, that the union's proposal, which seeks 

to proscribe the assignment of noninspection duties to immigration inspectors particularly when they are performing Sunday and holiday work, relates 

to the job content of the inspectors and is therefore outside the agency's 

bargaining obligation under section 11(b) of the Order.

The union contends that the proposal is merely a "procedure" for assigning 

employees to overtime, pointing in this regard to special statutory provisions (8 U.S.C. 1353a) for the payment of overtime to I&NS personnel who

11/ See Report accompanying E.O. 11491, section E.l, Labor-Management 

Relations in the Federal Service (1971), at p. 42.

12/ In its appeal, the union also adverted to the fact that the proposal 

in question had been contained in a prior agreement with the agency. However, as the Council has repeatedly held, such circumstance is v’ithout 

controlling significance. See, e.g.. International Association of Fire 

Fighters,Local F-111,and Griffiss Air Force Base, Rome, N.Y.', footnote 8, 

supra, at p. 11 of decision.

214
perforin inspection duties on a Sunday or holiday,— and to the 

Ineligibility of such employees for additional overtime pay, on those 

days, for noninspection duties performed along with the inspection 

dutiesAccording to the union, it "should be able to negotiate 

that employees who are called in to perform overtime work under the 

provisions of one law should be limited to perform only that work 

that Is compensated under that law." We cannot agree with the union's 

position.

The union does not deny that the agency, consistent with the statute 

relied upon by the union (8 U.S.C. 1353a), may properly assign nonInspectlon duties to I&NS personnel called in for inspection w ork on 

Sundays or holidays. Indeed, as the Comptroller General specifically 

ruled, "The matter of whether Inspectors should be required on Sundays 

or holidays to perform duties not directly connected with the particular 

Inspections for which they were summoned is for determination by the 

Immigration and Naturalization Service."— '

Since the agency may properly assign noninspection duties to I&NS personnel who are called in to perform Inspection duties on an overtime 

basis, the union's proposal which would proscribe such assignment of 

duties clearly concerns the job content of the employees involved and, 

for the reasons already set forth under item 3, above, is excepted from 

the agency's obligation to bargain under section 11(b) of the Order.

We therefore sustain the agency's determination of the nonnegotiability 

of the union's proposed Article 21, Section E.

13/

13/ 8 U.S.C. 1353a provides In pertinent part:

The Attorney General shall fix a reasonable rate of 

extra compensation for overtime services of immigration officers and employees of the Immigration and 

Naturalization Service who may be required to remain 

on duty . . . on Sundays or holidays, to perform 

duties In connection with the examination and landing 

of passengers and crews of steamships, trains, airplanes, 

or other vehicles, arriving In the United States from a 

foreign port by water, land, or air, such rates to be 

fixed on a basis of . . . two additional days* pay for 

Sunday and holiday duty ....

14/ The Comptroller General, in B-171621 dated August 2, 1971, ruled that 

I&NS personnel receiving special overtime compensation under 8 U.S.C. 1353a 

for inspection w ork would not be entitled, in addition, to regular overtime 

pay, under other statutory authority such as 5 U.S.C. 5542, when performing nonlhspectlon duties in the same time frame.

15/ Ibid, at p. 3 of decision.

215
Conclusions

For the reasons discussed above and pursuant to section 2411.27 of the 

Council’s Rules and Regulations, we find that:

1. The agency head's determination as to the nonnegotiability of Article 21, 

Sections A, B, and E, was valid and must be sustained; and

2. The agency head's determination as to the nonnegotiability of Article 10, 

Section K, was improper and must be set aside. This decision shall not

be construed as expressing or implying any opinion of the Council as to 

the merits of the union's proposal. We decide only that, as submitted by 

the union and based on the record before the Council, the proposal is properly subject to negotiation by the parties concerned under section 11(a) 

of the Order.

By the Cotincil.

Issued: September 30, 1974

216
Department of the Navy. Naval Air Rework Facility, Jacksonville. 

Florida. A/SLMR No. 344. The union (National Association of 

Government Inspectors and Quality Assurance Personnel, Unit No. 1) 

sought an election in a unit of professional engineers in the 

activity's Quality and Reliability Assurance Department, contending that those professionals, together with nonprofessional employees 

in that department already represented in a separate unit by the 

union, shared a community of interest. The Assistant Secretary, 

in his decision as clarified, found among other things that the 

claimed professional engineers lacked a clear and identifiable 

community of interest separate and distinct from other professional 

engineers at the activity, and that the unit sought by the union 

was thereby inappropriate. The union appealed to the Council, contending that the Assistant Secretary's decision was arbitrary and 

capricious and presented major policy issues, allegedly because 

the Assistant Secretary failed to understand that the union was 

seeking only to add the claimed professional engineers to the 

existing nonprofessional unit, and because such a mixed unit is 

appropriate.

Council action (October 21, 1974). The Council held that the Assistant 

Secretary's decision as clarified does not appear arbitrary and 

capricious, nor does it present any major policy issues. In this 

regard, the Council noted the explicit statement in the Assistant 

Secretary's decision that he had considered the union's petition 

as seeking to add the claimed pr'ofessionals to an existing nonprofessional unit, and his conclusion that any resulting mixed 

unit (or a separate unit) would be inappropriate because it would 

not include other employees having a community of interest with 

those sought by the union. The Council also found that the Assistant 

Secretary's decision does not appear inconsistent with his previous 

rulings or the purposes of the Order, or otherwise without reasonable 

justification. Accordingly, the Council denied review of the union's 

appeal under section 2411.12 of the Council's rules of procedure 

(5 CFR 2411.12).

FLRC NO. 7AA-14

217
UNITED STATES

FEDERAL LABOR RELATIONS COUNCIL

1900 E STREET. N.W. • WASHINGTON. D.C. 20415

October 21, 1974

Mr. Francis M. O'Laughlin 

National P r e s i d e n t .

National Association of 

Government Inspectors 

National Headquarters 

P. 0. Box 31257 

Jacksonville, Florida 32230

Re: Department of the Navy, Naval Air Rework 

Facility, Jacksonville, Florida, A/SLMR 

No. 344, FLRC No. 74A-14

Dear Mr. O'Laughlin:

The Council has carefully considered your petition for review of the 

Assistant Secretary's decision and the agency's opposition thereto, 

and the additional comments and arguments filed by the parties following receipt of the Assistant Secretary's clarification of his decision 

in the above-entitled case.

The National Association of Government Inspectors and Quality Assurance 

Personnel, Unit No. 1, represents a unit of approximately 80-85 nonprofessional Quality Assurance Specialists employed in the activity's 

Quality, and Reliability Assurance Department. Unit No. 1 sought an 

election, according to the findings of the Assistant Secretary, "in 

a unit consisting of all professional employees of the Quality and 

Reliability Assurance Department . . . excluding all nonprofessional 

enq>loyees ..." contending that those professional employees, together 

with employees in that department already represented in a separate 

vmit by the petitioner, shared a community of interest. The Assistant 

Secretaiy found that a unit limited to the professional engineers of 

the Quality and Reliability Assurance Department of the Activity is 

not appropriate for the purpose of exclusive recognition, in that 

they do not have a clear and identifiable community of interest separate 

and distinct from other professional engineers located at the Activity. 

He also concluded that such a fragmented unit would not promote effective 

dealings and efficiency of agency operations. The Assistant Secretary 

ordered that the petition be dismissed.

Following receipt of your appeal, the Council requested clarification 

of the Assistant Secretary's decision, as to (a) whether he considered

218
your petition as one seeking to add the professionals to an existing' 

nonprofessional unit; and (b) if so, the reasons which he had for not 

addressing the appropriateness of such a mixed unit. In response, 

the Assistant Secretary stated that he had considered your representation petition "as one seeking to add certain professional employees 

to an existing nonprofessional imit." Further, with regard to his 

reasons for not addressing the appropriateness of such a mixed unit, 

he stated that:

. . . it was found that a unit limited to the professional 

engineers of the Quality and Reliability Assurance 

Department of the Activity was not appropriate for the pu r ­

pose of exclusive recognition. In this connection, it was 

concluded, among other things, that the claimed professional 

engineers did not have a clear and identifiable community of 

interest separate and distinct from other professional engineers located at the Activity. In my judgment, the foregoing 

concltisions were determinative either in the event that, 

pursuant to Section 10(b)(4) of the Order, the claimed professional engineers did not vote to be included in the existing 

unit, but, rather, indicated a desire to constitute a separate 

unit, or in the event that they voted to be added to the existing nonprofessional unit. Thus, in either case, the claimed 

professional engineers were viewed as an inappropriate grouping of employees who shared a community of interest with other 

professional employees not covered by the instant petition.

Based on these considerations, clearly, any resulting 'mixed 

unit' would be inappropriate as it would not include certain 

employees having a community of interest with those in the 

'mixed unit.*

In your petition for review, y o u contend that the Assistant SecretaiTr's 

decision is arbitrary and capricious, and presents major policy issues, 

primarily because, as y o u allege, the Assistant Secretary has misunderstood the intent of the subject representation petition as seeking to 

establish a separate unit of professionals, rather than to add the 

professionals to the existing nonprofessional unit. Consequently, 

you conclude that his holding as to the inappropriateness of a separate 

professional unit is erroneous. Moreover, you contend that the "mixed" 

unit of professionals and nonprofessionals sought is an appropriate 

unit under the Order, and that the petitioned-for professionals therefore have a right to be represented in such a mixed unit if they so 

desire. In response to the Assistant Secretary's clarification of his 

decision, y o u contend essentially that the Assistant Secretary's view 

that the professional engineers sought do not have a clear and identifiable 

community of interest separate and distinct from other professional 

engineers at the Activity is irrelevant and that his decision is not 

in consonance w i t h previous rulings and not in harmony with the intent 

and philosophy of protecting individual rights.

219
In the Council’s opinion, your petition for review of the Assistant 

Secretary's decision does not meet the requirements of section 2411.12 

of the Council's rules; that is, his findings and decision do not 

appear in any manner arbitrary and capricious nor do they present a 

major policy issue. With regard to your contention that the Assistant 

Secretary misunderstood the subject representation petition, he states 

in his clarification, "the subject petition was considered as one 

seeking to add certain professional employees to an existing nonprofessional tmit." We interpret the Assistant Secretary's decision, as 

clarified, as finding that under the facts of the case a unit consisting 

of the professional employees sought and the nonprofessionals currently 

represented would not constitute an appropriate unit.

Accordingly, the Assistant Secretary's finding with regard to the lack 

of a "clear and identifiable community of interest" on the part of the 

five professional engineers, separate and distinct from other professionals, was not the result of a misinterpretation of the union's 

representation petition, but rather was the basis for his holding that 

"any resulting 'mixed unit' would be inappropriate as it would not 

include certain employees having a community of interest w i t h those in 

the 'mixed unit.'" Further, as he noted in his clarification, should 

the claimed professional engineers vote for representation in a separate 

unit pursuant to section 10(b)(4) of the Order, they would constitute 

"an inappropriate grouping of employees." Nor does it appear from 

your petition that the Assistant Secretary's decision is not consonant 

with previous rulings or not in harmony with the intent and philosophy 

of protecting individual rights. As to your contention that the decision of the Assistant Secretary appears arbitrary and capricious, it 

does not appear that the findings and decision of the Assistant Secretary 

were without reasonable justification.

Accordingly, because your appeal fails to meet the requirements for 

review as provided under section 2411.12 of the Council's rules of 

procedure, review of your appeal is d e n i e d .

By the Council.

Sincerely,

Henry ^ F r a z i e r Ilf 

Execucive Director

cc: A/SLMR

Dept of Labor

A. Di Pasquale 

Navy

220
Internal Revenue Service, Chicago D i s t r i c t , A/SLMR No. 279; 

and Internal Revenue Service, Western Service Center, Ogden, U t a h , 

A / SLMR No. 280. These two cases Involved the same principal Issue, 

that Is, the propriety of the Assistant Secretary's holding, In 

effect, that section 7(d)(1) of the Order does not confer on supervisors any right to select representatives of their choice In agency 

grievance or appellate actions, and that an agency's refusal to 

permit such choice Is therefore not violative of section 19(a)(1) 

of the Order. The Council accepted the cases for review having 

determined that major policy Issues are present In the Assistant 

Secretary's decisions (Report No. 4A).

Council actions (October 22, 1974). Based on the express language, 

context and "legislative history" of section 7(d)(1), the Council 

agreed with the Assistant Secretary that this section does not 

confer any rights whatsoever on supervisors or other employees 

under the Order. Rather, section 7(d)(1) simply means that the 

granting of exclusive recognition to a labor organization does 

not prevent an employee from choosing his own grievance or appeals 

representative (except under a negotiated grievance procedure) if 

such right is granted elsewhere under law or regulation. The 

Council noted in this regard that alleged violations of such rights 

granted elsewhere may be raised in the appropriate procedures established by those directives pursuant to which the rights are claimed. 

Accordingly, the Council held that the Assistant Secretary's dismissal of the 19(a)(1) complaints, based on his finding that 

section 7(d)(1) does not confer any rights enforceable under section 19, 

was consistent with the purposes of the Order and must be sustained.

FLRC NOS. 73A-32 and 73A-33

221
UNITED STATES 

FEDERAL LABOR RELATIONS COUNCIL 

WASHINGTON, D.C. 20415

Internal Revenue Service 

Chicago District

A/SLMR No. 279

and FLRC N o . 73A-32

National Treasury Employees 

Union and Chapter 10, National 

Treasury Employees Union

DECISION ON APPEAL FROM 

ASSISTANT SECRETARY DECISION

Background of Case

This appeal arose from a Decision and Order of the Assistant Secretary who, 

upon a complaint filed by the National Treasury Employees Union and 

Chapter 10, National Treasury Employees Union (herein jointly called the 

unipn) held that the Internal Revenue Service, Chicago District (herein 

referred to as the activity) had not violated section 1 9 ( a ) (1)^/ of the 

Order by refusing to permit a supervisory employee of the activity to 

select the representative of his choice in connection with his action pursuant to the agency's grievance procedure, allegedly in contravention of 

rights conferred on employees by section 7(d)(1) of the Order.

The pertinent facts as found by the Administrative Law Judge, whose findings, 

conclusions, and recommendation were adopted by the Assistant Secretary, are 

essentially undisputed. Briefly the facts are as follows: A supervisor^/ 

at the activity, who had been reassigned from one supervisory position to

The name of the union appears as amended during the pendency of the 

instant proceeding.

2J Section 19(a)(1) of the Order provides as follows:

Sec. 19. Unfair labor practices. (a) Agency management shall 

h o t -

(1) interfere with, restrain, or coerce an employee in the 

exercise of the rights assured by this Order;

_3/ In view of the Council's conclusion herein, that section 7(d)(1) does 

not confer any rights either on a supervisory or on a nonsupervisory employee, 

the fact that the grievant in the instant case is a supervisor is, to that 

extent, without significance.

222
another, felt that the reassignment had lessened his opportunity for 

promotion. As a result, he filed a grievance under the agency grievance 

procedure seeking reinstatement to his former position. A member of the 

union, he designated the president of the local chapter to be his representative in the grievance proceeding. The activity declined to permit the 

supervisor to be represented by an official of the union. Following 

unsuccessful attempts to resolve the matter, the union filed the instant 

unfair labor practice complaint.

The Assistant Secretary determined, in pertinent part, that section 7(d)(1) 

of the Order does not confer any rights enforceable under section 19 of the 

Order. In this regard, he found that section 7(d)(1) simply disavows the 

taking away of certain rights that may be conferred by law or regulation; 

and that any rights flowing from section 10(e) do not flow to supervisors .A/ 

Accordingly, the Assistant Secretary dismissed the complaint.

The union appealed the Assistant Secretary's decision to the Council. The 

Council found that major policy issues were presented by the decision and 

accepted the petition for review. The union and the Internal Revenue Service 

filed briefs w ith the Council.

Opinion

The question presented by this case is whether, as determined by the 

Assistant Secretary, section 7(d)(1) does not confer any rights enforceable 

under section 19 of the Order. For the reasons which follow, the Council 

agrees with the determination of the Assistant Secretary .A'

The union principally alleges that section 7(d)(1) confers upon employees an 

unqualified right to appoint representatives of their choice in actions under 

agency grievance procedures; and, the "right not to be precluded from 

exercising the right" to designate such representatives in such actions.

lei

V The Council agrees with the Assistant Secretary that section 10(e) is 

not applicable in the present case. Section 10(e) expressly applies to 

"employees in the unit" and, under section 10(b), a unit may not include a 

supervisor. Therefore, since the instant case involves a supervisor, the 

Council finds it unnecessary in reaching its decision to consider questions 

as to which rights, if any, flow to employees under section 10(e) of the 

O r d e r .

V The C o u n c i l’s conclusion herein is addressed to whether section 7(d)(1) 

of the Order confers any rights upon supervisory or nonsupervisory employees. 

In arriving at this conclusion we do not reach or in any respect pass on the 

issue, currently under study by the Council in connection with its general 

review of the Federal labor-management relations program, as to, "What 

policy should pertain to the representation of supervisors by unions in 

proceedings under agency grievance and appeals procedures?"

223
"no matter what is the source of that right."J§./ The union bases its 

assertions on its interpretation of the language and construction of 

section 7(d)(1), as well as certain language extracted from the Report and 

Recommendations on the Amendment of Executive Order 1 1 4 9 1 .

Section 7(d)(1) of the Order provides as follows:

RECOGNITION

Sec. 7. Recognition in general

(d) Recognition of a labor organization does not-

(1) preclude an employee, regardless of whether he is in a unit of

exclusive recognition, from exercising grievance or appellate rights 

established by law or regulations; or from choosing his own representative in a grievance or appellate action, except when presenting 

a grievance under a negotiated procedure as provided in section 13;

In our opinion, the literal meaning of the quoted language is clear and 

unambiguous. The language neither explicitly nor impliedly purports to confer 

on employees any rights, whatsoever. Rather, the language plainly means only 

that the according of exclusive recognition to a labor organization does not 

preclude an employee from choosing his own grievance or appeals representative 

(except under a negotiated grievance procedure) in the event that the employee 

would have been entitled to make such a choice if recognition of the labor 

organization had not been a c c o r d e d . Thus, the purpose manifested by the 

language of section 7 (d)(1) merely is to explicate that the according of 

recognition, on the one hand, is unrelated to the choosing by an employee of 

his representative in a grievance or appeals action (except under a negotiated grievance procedure), on the other.

This conclusion as to the meaning and purpose of section 7(d)(1) is confirmed 

by consideration of the context in which the section appears. As indicated 

by its title, section 7 is concerned primarily with the subject of 

"Recognition in general." Thus, sections 7(a), 7(b) and 7(c) deal respectively with, in effect, when an agency shall accord recognition, certain

1^ this regard, the union claims that agency regulations and the Federal 

Personnel Manual confer on the grievant in the instant case the right to 

choose his own representative. The Council finds it unnecessary to consider 

these claims in reaching its decision herein and, of course, does not pass 

on the merits of such claims.

224
requirements imposed upon a union seeking recognition, and the duration 

of recognition which has been accorded. That is, these sections are 

concerned only wit h the process of achieving and retaining exclusive recogn ition by a labor organization and not at all with the conferring of individual employee rights to choose representatives in particular actions.

Set in this context, the remainder of section 7(d), itself,Z' plainly does 

not confer rights or in any manner indicate that rights, not otherwise 

existing, are established thereby. Clearly, apart from some distinctions 

not relevant here, the provisions of section 7(d) are consistent as to the 

meaning of their common phraseology— "Recognition of a labor organization 

does not- . . . preclude . . . [certain acts or conduct]"— and as to their 

obviously common purpose— to indicate simply that the according of recognition to a labor organization under the Order does not have the legal 

consequence of precluding the acts and conduct enumerated in the whole of 

section 7(d) w h i c h might be undertaken pursuant to rights elsewhere 

conferred by law or regulation.

Further, in this regard, the Council finds to be without merit the u n i o n’s 

assertion, previously mentioned, that the C o u n c i l’s 1971 Report and 

Recommendations on the Amendment of Executive Order 11A91 contains language 

indicating that the Order confers rights in connection with an emplo y e e’s 

choice of representative in grievance actions. In that R e p o r t , the Council 

stated that, "The Order and [Civil Service Commission] regulations reserve 

to the employee rights to choose his own representative (which may be a 

rival union) . . . ." [Emphasis supplied.]^/

U Sections 7(d)(2) and 7(d)(3) provide as follows:

(d) Recognition of a labor organization does not-

(2) preclude or restrict consultations and 

an agency and a veterans organization wit h respect to matters of 

li! particular interest to employees with veterans preference; or

'& (3) preclude an agency from consulting or dealing with a

religious, social, fraternal, professional or other lawful associef ation, not qualified as a labor organization, with respect to

J matters or policies which involve individual members of the association or are of particular applicability to it or its members. 

Consultations and dealings under subparagraph (3) of this paragraph shall be so limited that they do not assume the character of 

0 formal consultation on matters of general employee-management

ji; policy, except as provided in paragraph (e) of this section, or

jS extend to areas where recognition of the interests of one employee

group m a y result in discrimination against or injury to the 

interests of other employees.

Labor-Management Relations in the Federal Service (1971), p. 28.

225
In the first place, the reservation of rights referred to in the Report, on 

its face, is not a conferral of such rights but, as similarly noted in our 

previous discussion of section 7(d)(1), amounts to a disclaimer of effect 

on rights elsewhere conferred. Moreover, in context, the quoted language 

refers to the then existing situation with regard to negotiated grievance 

procedures whereby "the role of the exclusive union . . . [was] diminished 

and distorted by permitting a rival union to represent a grievant w i t h 

respect to the interpretation and application of the agreement negotiated 

by the exclusive representative . . . Thus, the Council recommended 

that the Order be amended to permit an employee to file a grievance under 

the negotiated grievance procedure "only with representation by the 

exclusive union or a representative approved by the union."^/ Such a 

policy currently is embodied in section 13 of the Order and is reflected 

in the "exception" portion of section 7(d)(l)» as previously set forth 

herein. Therefore, since the Report language relied upon by the union 

concerns negotiated rather than agency grievance procedures, as are here 

involved, and, moreover, since in any event a reservation of rights is not a 

conferral of rights, we find that the language relied upon does not support 

the claims at issue in the instant case.

Accordingly, based on the foregoing, we find the Assistant Secretary's 

dismissal of the union's 19(a)(1) unfair labor practice complaint, based on 

his finding that section 7(d)(1) of the Order does not confer any rights 

enforceable under section 19, to be consistent with the purposes of the 

O r d e r .10/

Accordingly, pursuant to section 2411.17(b) of the Council's rules of 

procedure, we sustain the Assistant Secretary's dismissal of the complaint.

By the Council.

Issued: October 22, 1974.

9/ Id.

Alleged violations of rights claimed by the union to be conferred by 

agency regulations and the Federal Personnel Manual, not remediable under 

the Order, may be raised in appropriate procedures established by the 

directives pursuant to which the rights are claimed.

226
UNITED STATES 

FEDERAL LABOR RELATIONS COUNCIL 

WASHINGTON, D.C. 2GA15

Internal Revenue Service 

Western Service Center 

Ogden, Utah

A /SLMR No. 280

and FLRC No. 73A-33

National Treasury Employees 

Union and Chapter 67, National 

Treasury Employees Union

DECISION ON APPEAL FROM 

ASSISTANT SECRETARY DECISION

This appeal, which was accepted for review by the Council, arose from 

a Decision and Order of the Assistant Secretary who, upon a complaint 

filed by the National Treasury Employees Union and Chapter 67, National 

Treasury Employees Union (herein jointly called the union)J^/ held that 

the Internal Revenue Service, Western Service Center, Ogden, Utah, 

had not violated section 19(a)(1) of the Order by announcing a policy 

whereby a supervisor would not be permitted to be represented in a 

grievance or appellate action by a representative of the labor organization that represents employees supervised by the aggrieved supervisor. 

In reaching his decision on this issue, the Assistant Secretary relied 

exclusively on his decision in Internal Revenue Service, Chicago 

District, A /SLMR No. 279.

On this date the Council has issued its Decision on Appeal from 

Assistant Secretary Decision in the matter of Internal Revenue Service, 

Chicago D i s t r i c t , A /SLMR No. 279. FLRC No. 73A-32, in which it sustained 

the Assistant Secretary's finding that the agency had not violated 

section 19(a)(1) of the Order by refusing to permit a supervisor to 

select the representative of his choice in connection with his action 

pursuant to the agency's grievance procedure. For the reasons fully 

set forth in that Decision, and pursuant to section 2411.17 of the

V The name of the union appears as amended during the pendency of 

the instant proceeding.

227
Council's rules of procedure, w e find that the Assistant Secretary's 

decision in the instant case, with respect to a finding that the 

agency did not violate section 19(a)(1) of the Order, is consistent 

with the purposes of the Order, and, therefore, it is sustained.

By the Council.

Henry B 

Executi

III 

Director

Issued: October 22, 1974.

228
Internal Revenue Service, WashinRton, D . C . , Assistant Secretary Case 

No. 22-4056 (CA). The Assistant Secretary dismissed a complaint 

filed by the National Treasury Employees Union (NTEU), which alleged 

that the agency's denial of an employee's request for union representation at certain "investigative interviews" violated section 19(a)(1) 

and (6) of the Order. The Assistant Secretary found that the "investigative interviews" did not constitute "formal discussions" within the 

meaning of section 10(e) of the Order and, relying upon his decision 

in Department of Defense, National Guard Bureau, Texas Air National 

G u a r d , A/SLMR No. 336, concluded that the a g e n c y’s denial of union 

representation did not violate section 19(a)(1) or (6). With regard 

to NTEU's assertion that a hearing was required to bring out additional facts in the case, the Assistant Secretary determined, in 

effect, that it was NTEU's burden as the complainant to adduce at the 

investigative stage those facts necessary to establish a reasonable 

basis for the complaint.

NTEU appealed to the Council, alleging that the Assistant Secretary's 

decision is arbitrary and capricious essentially because, contrary 

to his own r u l e s , he failed to direct a hearing to resolve remaining 

factual issues; he misconstrued section 10(e) of the Order; and he 

departed without explanation from his previous decisions. NTEU 

further alleged that major policy issues are presented concerning 

union representation at discussions between employees and the agency.

Council action (October 22, 1974). The Council found that the 

Assistant Secretary's decision did not appear to be without reasonable justification, or in any other manner arbitrary and capricious.

In this connection, the Council held that the Assistant Secretary 

did not violate his own rules in refusing to conduct a hearing; his 

decision is based on the language and meaning of 10(e); and the 

Assistant Secretary did not appear to depart from his earlier decisions. The Council also held that, in the circumstances presented, 

the Assistant Secretary's determination did not present a major 

policy issue warranting Council review in this case. Accordingly, 

the Council denied review of NTEU's appeal under section 2411.12 

of the Council's rules of procedure (5 CFR 2411.12).

FLRC NO. 74A-23

229
UNITED STATES

FEDERAL LABOR RELATIONS COUNCIL

1900 E STREET. N.W. • WASHINGTON. O.C. 2041S

October 22, 197A

Mr. Robert M. Tobias, Counsel 

National Treasury Employees Union 

1730 K Street, N W . , Suite 1101 

Washington, D.C. 20006

Re: Internal Revenue Service, 

W a s h i n g t o n , D .C ., Assistant 

Secretary Case No. 22-4056 

(CA), FLRC No. 74A-23

Dear Mr. Tobias:

The Council has carefully considered your petition for review of the 

Assistant Secretary's decision in the above-entitled case.

The Assistant Secretary denied your request for review seeking reversal of 

the Assistant Regional D i r e c t o r’s dismissal of your unfair labor practice 

complaint, in which you alleged agency violations of subsections 19(a)(1) 

and (6) of the Order. These alleged violations were based upon the 

agency's refusal to permit an employee to be accompanied by a representative of the union at "investigative interviews" conducted by the agency 

(which you characterize as "formal discussions" within the meaning of 

section 10(e) of the Order).

On the basis of the facts properly before him and under all the circumstances 

the Assistant Secretary found that the "investigative interviews" in this 

case which "related to a single IRS employee's obligation to file timely 

a proper Federal tax return" did not constitute a formal discussion within 

the meaning of section 10(e) of the Order and that, therefore, the agency 

was not required to afford the union an opportunity to be present. He 

noted in this regard that the interviews at issue did not concern a 

grievance, nor did they deal w i t h personnel policies or practices or matters 

affecting general working conditions of employees in the unit. Consequently, 

relying on his decision in Department of Defense, National Guard Bureau, 

Texas Air National G u a r d , A /SLMR No. 336,jVhe determined that the agency's 

actions did not constitute violations of subsections 19(a)(1) or (6) of 

the Order. As for your assertion that a hearing was required to bring out 

"many additional facts," in addition to those undisputed in the case, the 

Assistant Secretary determined, in effect, that it was the union's burden 

as the complaining party to adduce at the investigative stage those facts 

necessary to establish a reasonable basis for the complaint.

V Review subsequently denied by Council. 

Report No. 54).

230

(FLRC No. 74A-11, June 18, 1974,
In your petition for review, you contend that the Assistant Secretary's 

decision Is arbitrary and capricious because; (1) he improperly failed 

to direct a hearing while substantial factual Issues remained to be 

resolved, contrary to his own rules of procedure; (2) he misconstrued 

section 10(e) of the Order in concluding that the "investigative interviews" 

in question w ere not "formal discussions" within the meaning of that 

section, and that the employee did not have an unqualified right to seek 

union representation during such an interview; and, (3) the asserted 

misconstruction of section 10(e) represents an unexplained departure from 

his previous decisions. You also contend that the Assistant Secretary's 

decision presents major policy issues concerning the rights of unions to be 

present and the rights of employees to select the union to be their 

representative at discussions between employees and the agency. Finally, 

you object to the admission of evidence submitted ^ parte to the Council 

on behalf of the agency.

In the Council's view, your petition for review does not meet the requirements 

of section 2411.12 of the Council's rules, that is, the decision of the 

Assistant Secretary does not appear arbitrary and capricious nor does it 

present major policy issues. The Assistant Secretary did not violate his 

own rules of procedure in refusing to conduct a hearing. Moreover, his 

decision is based on the language and meaning of section 10(e) and does 

not appear to depart in any respect from interpretations of that section 

contained in his earlier decisions. Therefore, the Council finds that the 

decision of the Assistant Secretary does not appear to be without reasonable 

justification, or in any other manner arbitrary and capricious. As to the 

alleged major policy issue, the Council is of the opinion that, in the 

circumstances presented, the Assistant Secretary's determination, that 

denial of representation at these particular investigative interviews which 

were not "formal discussions" within the meaning of section 10(e) of the 

Order did not interfere with any right accorded under the Order, does not 

present a major policy issue warranting Council review in this case. With 

respect to your assertions concerning the agency's ex parte submission of 

evidence to the Council, it has been deemed unnecessary, in reaching the 

decision herein, to examine the material in question, submitted by the 

agency under separate cover and denoted "For official use only." Therefore, 

without passing on the admissibility of such material, it is being returned, 

unopened, to the agency.

Since the Assistant Secretary's decision does not appear arbitrary and 

capricious and does not present a major policy issue, your appeal fails to 

meet the requirements for review as provided in section 2411.12 of the 

Council's rules of procedure. Accordingly, your petition for review is 

denied.

By the Council.

S i n c ^ e l y ,

Henry Bj frazier III 

cc: G. Jerry Shaw, IRS Executi\ Director

A/SLMR, Labor
American Federation of Government Employees, Local 1 6 5 0 ^ Beeville,

Texas (Naval Air Station, Chase Field, Beevllle, Texas), and 

American Federation of Government Employees, Washington, D.C., A/SLMR 

No. 294. Upon complaint filed by two employees (Charles R. Bridges 

and Arnold Me d i n a ) , the Assistant Secretary determined that AFGE and 

AFGE Local 1650 violated section 19(c) of the Order by refusing to 

reinstate these employees to membership based upon their failure, 

pursuant to a provision of Local 1 6 5 0’s constitution, to obtain a 

two-thirds majority of voting members. The Assistant Secretary held 

in this regard that section 19(c) provides, in effect, that an employee 

in an appropriate unit shall not be denied membership in a labor 

organization which is accorded exclusive recognition except for failure to meet reasonable occupational standards uniformly required for 

admission or for failure to tender initiation fees and dues uniformly 

required as a condition of acquiring and retaining membership; and 

that, since the denial of reinstatement of the two employees involved 

was not based on either of the foregoing exceptions, such action was 

violative of 19(c). The Council accepted the case for review, having 

determined that a major policy issue was present (Report No. 45).

Council action (October 25, 1974). The Council agreed with the 

Assistant Secretary as to the meaning and application of section 19(c). 

In this connection, the Council ruled that a denial of reinstatement 

to membership of an employee who had voluntarily resigned from the 

union is a denial of "membership" within the terms of section 19(c) 

and, therefore, any denial of reinstatement must be based on either 

failure to meet certain occupational standards, or a failure to tender 

fees and dues, in order to be sanctioned under the Order. Accordingly, 

the Council upheld the Assistant Secretary's determination that the 

denial of reinstatement here involved which failed to satisfy these 

requirements violated section 19(c); further, the Council agreed with 

the Assistant Secretary’s finding that both AFGE and its Local 1650 

were responsible for such violation.

FLRC NO. 73A-43

232
UNITED STATES 

FEDERAL LABOR RELATIONS COUNCIL 

W A S H I N G T O N , D .C . 20415

American Federation of Government 

Employees, Local 1650 

Beeville, Texas

(Naval Air Station, Chase Field,

Beeville, Texas)

and

American Federation of Government A /SLMR No. 294

Employees, Washington, D.C. FLRC No. 73A-43

and

Charles R. Bridges and 

Arnold Medina

DECISION ON APPEAL FROM 

ASSISTANT SECRETARY DECISION

Background of Case

This appeal arose from a Decision and Order of the Assistant Secretary who, 

upon complaint filed by two employees (Charles Bridges and Arnold Medina) 

against their national union (American Federation of Government Employees, 

hereinafter referred to as AFGE N a t i o n a l ) , and their local union (American 

Federation of Government Employees, Local 1650, hereinafter referred to as 

Local 1650) held, in pertinent part, that by refusing to reinstate them to 

membership based upon their failure, pursuant to a provision of Local 1 6 5 0 's 

constitution, to obtain a two-thirds majority of voting members, AFGE 

National and Local 1650 violated section 19(c) of the Order.Ji/ The Assistant 

Secretary held that section 19(c) provides, in effect, that an employee in

Section 19(c) of the Order provides:

(c) A labor organization which is accorded exclusive recognition 

shall not deny membership to any employee in the appropriate unit 

except for failure to meet reasonable occupational standards un i ­

formly required for admission, or for failure to tender initiation 

fees and dues uniformly required as a condition of acquiring and 

retaining membership. This paragraph does not preclude a labor 

organization from enforcing discipline in accordance with procedures 

under its constitution or by-laws which conform to the requirements 

of this Order.

233
an appropriate unit shall not be denied membership in a labor organization 

which is accorded exclusive recognition except for failure to meet reasonable occupational standards uniformly required for admission or for failure 

to tender initiation fees and dues uniformly required as a condition of 

acquiring and retaining membership. In this regard, the Assistant Secretary 

found that the denial of reinstatement to the two employees was not based 

on either of the foregoing exceptions. Further, it was clear that the 

employees were never charged by the Local with respect to any alleged 

misconduct engaged in during the period in which they were members of the 

L o c a l .

Based on the foregoing, the Assistant Secretary ordered that Charles 

Bridges!/ be unconditionally reinstated to membership in the Local.1/ AFGE 

appealed to the Council from this Decision and Order, and the Council 

accepted the petition for review, deciding that the Assistant Secretary’s 

decision presented major policy issues.

Opinion

The question presented in this case is whether the section 19(c) proscription 

on an exclusive representative denying membership to any unit employees 

except for failure to meet occupational standards uniformly required for 

admission, or for failure to tender initiation fees and dues uniformly 

required as a condition of acquiring and retaining membership extends to 

situations where an employee seeks reinstatement as a member of a union 

from which he has previously resigned.

As indicated above, the Assistant Secretary found that a denial of reinstatement to membership is a denial of membership within the terms of 

section 19(c) and therefore, any denial of reinstatement must be based on 

either failure to meet certain occupational standards, or a failure to tender 

fees and dues, in order to be a permissible denial. In the opinion of the 

Council, this analysis as to the meaning and coverage of section 19(c) is 

correct, and is hereby sustained.

Section 19(c) mandates that "A labor organization which is accorded 

exclusive recognition shall not deny membership to any employee in the appropriate unit . . except for the reasons specified. [Emphasis supplied.]

2J The Assistant Secretary found that because the evidence established 

that Arnold Medina had retired from Federal service, and therefore no 

longer a unit employee, it was inappropriate to issue a remedial order in 

such a situation.

V The Assistant Secretary noted that after reinstatement, as a member. 

Bridges would be subject to any discipline, enforced in accordance with the 

procedures under the constitution and by-laws of either of the Respondents 

which conform to the requirements of the Order, with respect to any improper 

conduct engaged in during the period of his prior membership.

234
Nothing in the language of the Order, or in the Study Committee Report, 

indicates that the term "membership", as used in section 19(c), is 

intended to distinguish between the type of membership enjoyed by an 

employee whe n he joins a labor organization for the first time, as opposed 

to the type of membership entered into upon reinstatement to a labor 

organization. Indeed, the use of the generalized term, "membership". 

Indicates to us that the intent of the Order was to include both situations 

within the section 19(c) mandate to labor organizations. Had it been 

intended to make the distinction between initial membership and reinstatement to membership, such as is urged by AFGE, it seems clear to us 

that section 19(c) would contain language which would make that distiniction 

more readily apparent.

Moreover, this interpretation is clearly consistent with the obvious intent 

of section 19(c), which is to prohibit labor organizations which have been 

accorded exclusive recognition from denying membership to employees except 

for very limited specified reasons. Such an intent would not be fostered 

if we were to conclude that the prohibition against denying membership does 

not protect an employee who has voluntarily resigned from a labor organization, but then wishes to be reinstated to membership.

AFGE's arguments that the language of section 19(c) does make such a 

distinction are not persuasive. The union contends first that the reference 

in 19(c) to " . . . failure to tender initiation fees and dues uniformly 

required as a condition of acquiring and retaining membership" indicates 

that the intent of section 19(c) is that it apply only to original memberships, not reinstatements, because initiation fees are not required upon 

reinstatement to membership. It is further alleged in this regard that the 

reference to " retaining membership" also indicates that 19(c) pertains to 

original memberships only and not reinstatements. However, while it appears 

to be true that the reference to "initiation fees" in section 19(c) refers 

only, in the case of AFGE, to employees who are becoming members of the 

union for the first time, the reference to "dues" would clearly be applicable to both employees applying for original membership, and those 

applying for reinstatement to membership. Moreover, even assuming a 

connection between initiation fees and dues in 19(c) which would make them 

both applicable to original membership only, it should be noted that this 

portion of 19(c) deals only with the exceptions to the mandate that a union 

accept any unit employee into membership, not with the mandate itself.

Hence, this union contention does not establish that section 19(c) intends 

to distinguish between original membership in a union, and reinstatement to 

membership therein, and is therefore rejected.

Second, AFGE argues that "not one word in the Order, or its background 

history, indicates or even implies that unions are obligated to accept . . . 

every applicant for reinstatement." This view is predicated on the assumption that reinstatement and membership are two different concepts. Once 

this assumption is made, it is a simple matter to survey the Order and its 

history and discover that no specific mention is made of reinstatement.

235
concluding therefore that reinstatement was not intended to be covered by 

section 19(c). However, as indicated above, we are of the opinion that 

the Order did not intend to make reinstatement to membership a separate 

concept fron initial membership. Again, the term "membership" includes 

both concepts .A/

AFGE also contends that the record of the case before the Assistant 

Secretary does not provide a sufficient basis for a finding that AFGE 

National had acted in violation of the Order. In this regard, it is argued 

first, that the National office had no way of knowing, at the time that it 

approved Local 1 6 5 0’s constitutional provisions dealing wit h reinstatement, 

that the Assistant Secretary would interpret section 19(c) to apply to 

reinstatement to membership; and second, that the National office was in no 

way involved in implementing the reinstatement policy here involved. These 

arguments must be rejected. The fact that AFGE National did not, at the 

time it approved Local 1650*s constitutional provisions, have an authoritative ruling as to the meaning of section 19(c) does not alter the fact 

that once such a ruling is issued, AFGE National must comply with an order 

directing it to act in accordance with such a ruling.

As to the extent of involvement of AFGE National in the rejection of 

Bridge’s application for membership, we are of the opinion, as was the 

Assistant Secretary, that the N a t i o n a l’s approval of the Local's constitutional provisions and its approval of the L o c a l’s action with regard to 

Bridges constitute sufficient involvement to hold the National responsible, 

with the Local, for the denial of membership involved in this case. 5/

Also based on this supposed distinction between reinstatement and 

initial membership is the contention that because neither section 19(c), nor 

any other provision of the Order or its history, contains a specific 

reference to reinstatement as being encompassed in the section 19(c) requirement that labor organizations accept all unit employees into membership, 

that the Assistant Secretary has exceeded the authority granted to him under 

the Order by extending the express provisions of the Order to cover a 

situation it was not intended to cover. Based on the same rationale as set 

forth above, however, this union contention must also be rejected. The 

Assistant Secretary has not exceeded the scope of his authority, because he 

has properly interpreted the term "membership" as used in section 19(c) 

to include reinstatement to membership. He has not extended or, in effect, 

rewritten the Order to include something which was not there in the first 

place.

AFGE argues that there is a "national labor—relations policy" to the 

effect that unions may promulgate rules to maintain "internal control and 

discipline over locals, and that this policy is adopted in the federal 

labor-management relations program by means of the portion of section 19(c) 

which provides as follows:

This paragraph does not preclude a labor organization from enforcing 

discipline in accordance with procedures under its constitution or 

by-laws which conform to the requirements of this Order.

(Continued)

236
Accordingly, based on the foregoing, w e find the Assistant Secr e t a r y’s 

holding that AFGE Local 1650 and AFGE National violated section 19(c) by 

refusing to reinstate Bridges and Medina to membership is consistent with 

the purposes of the Order. Therefore, pursuant to section 2411.17 of the 

Council's rules of procedure, w e sustain the subject Decision and Order of 

the Assistant Secretary, and vacate our stay of the order issued by the 

Assistant Secretary.

By the Council.

Henry B ^ razier I 

Executive/Director

Issued: October 25, 1974

(Continued)

The union concludes, in the light of the foregoing, that because the 

denials of reinstatement to membership of the Complainants were for 

disciplinary reasons, that they were permissible under the Order. However, 

in this case the Assistant Secretary found that the Complainants had not 

been charged w ith any alleged misconduct and there is no evidence that 

the denial of reinstatement was a discipline in accordance with procedures 

under the Local's constitution or by-laws which conform to the requirements of the Order.

237
Department of Defense, Air Force Defense Language Institute, English 

Language Branch, Lackland Air Force Base, T e x a s . A/SLMR No. 322.

Upon a complaint filed by the union (American Federation of Government 

Employees, AFL-CIO, Local Union 1367), the Assistant Secretary found 

that, pursuant to the Council's decision in United Federation of 

College Teachers, Local 1460 and U.S. Merchant Marine A c a d e m y , FLRC 

No. 71A-15 (Report No. 30), the activity had not violated section 

19(a)(6) of the Order by failing to meet and confer with the union 

in regard to the adoption of a Defense Language Institute regulation 

dealing with the assignment of activity employees to overseas duty.

In this regard, the Assistant Secretary found that the subject 

regulation, which in part required activity management to consider 

employees from outside the activity for job assignments, was issued 

to achieve a desirable degree of uniformity and equality on a 

matter common to more than one subordinate activity of the parent 

organization and, in accordance with Merchant M a r i n e , was excepted 

from the bargaining obligation under section 11(a) of the Order.

The Council accepted the case for review, having determined that a 

major policy issue was present, namely: Whether the Assistant 

Secretary correctly applied the Council's Merchant Marine decision 

in concluding that the activity was not obligated, under section 

1 1 (a), to meet and confer with the union in regard to the subject 

regulation (Report No. 51).

Council action (October 25, 1974). The Council found, contrary 

to the Assistant Secretary, that the subject regulation was applicable only to the single activity here involved and therefore the 

Assistant Secretary incorrectly applied the Merchant Marine decision 

in holding that the activity was not obligated, under section 1 1 (a), 

to negotiate with the union in regard to that regulation. The 

Council ruled, in this connection, that under Merchant M a r i n e , a 

policy or regulation referred to in section 1 1 (a) as an appropriate 

limitation on the scope of negotiations must be directed to the 

management of more than one subordinate activity and deal with the 

administration of matters which are common to those activities.

The Council further ruled that such condition is not established 

merely because, as here, the regulation requires activity management 

to consider employees from outside the activity for job assignments. 

Accordingly, the Council remanded the case to the Assistant Secretary 

for further proceedings, consistent with the Council's decision.

FLRC NO. 73A-64

238
U NITED STATES 

FEDERAL LA B O R RELATIONS COUNCIL 

WASHINGTON, D.C. 20415

Department of Defense

Air Force Defense Language Institute

English Language Branch

Lackland Air Force Base, Texas

j A / S L M R No. 322

FLRC No. 73A-64

American Federation of Government 

Employees, Local Union 1367

DECISION ON APPEAL FROM 

ASSISTANT SECRETARY DECISION

Background of Case

This appeal arose from a Decision and Order of the Assistant Secretary 

who dismissed a complaint filed by American Federation of Government 

Employees Local 1367 (herein referred to as "the union") against the 

Air Force Defense Language Institute, English Language Branch (herein 

referred to as "the activity") which complaint had alleged that the 

activity had violated section 19(a)(6) of the Order!' by unilaterally 

Implementing Defense Language Institute Regulation 690-2 on April 14, 

1972 and failing to confer, consult, or negotiate with the complainant 

In respect thereto.

The factual background of this case, as found by the Administrative 

Law Judge and adopted by the Assistant Secretary, is as follows: The 

activity located at Lackland Air Force Base, San Antonio, Texas, 

employs instructors to teach English to foreign military students, 

preparatory to their technical or professional training. The activity 

also sends Instructors to foreign countries to assist host countries 

to develop programs and train instructors to teach English to others. 

Prior to April 1972, the selection of instructors for overseas assignments was governed by DLIEL Memorandum 690-1, which provided for a

y Section 19(a)(6) of the Order provides as follows;

(a) Agency management shall not—

(6 ) refuse to consult, confer, or negotiate with a labor 

organization as required by this Order.

239
rotation roster system based on tenure; i.e., the instructors wit h the 

most tenure would be the last to go overseas. In March of 1971, a new 

Commandant was assigned to the activity. After having reviewed DLIEL 

Memorandum 690-1, he concluded that the operation of the rotation roster 

should be reversed so that the instructors wit h the mos t tenure would 

be the first to be sent overseas. In this connection the Commandant me t 

with the president of the union to discuss such a proposed change, and 

it was agreed that the rotation roster should be changed as proposed by 

the Commandant. A draft of a revised DLIEL Memorandum 690-1 was then 

prepared by the Commandant, and sent to Defense Language Institute (DLI) 

Headquarters in Washington, D.C. for review and inspection. At Headquarters, however, it was decided that any rotation system based solely 

on tenure would be contrary to Civil Service Commission regulations. As 

a result, a new headquarters regulation, DLI Regulation 690-2, was prepared by DLI and sent to the activity in April 1972. The new regulation, 

which superseded DLIEL Memorandum 690-1, provided for an overseas selection system based on experience and qualifications. The regulation was 

issued by DLI Headquarters and was deemed applicable to employees at the 

activity as well as other employees at other activities under DLI. The 

Commandant of the activity, upon receipt of the new regulation, held a 

meeting with union officials to infomn them that it now governed selection for overseas assignments. The union officials objected that they 

had not been consulted with regard to the adoption of the regulation, 

to which the Commandant replied that there was no need for the activity 

to consult with the union because the regulation had been issued by DLI 

Headquarters. In subsequent months, the union and the activity met to 

discuss DLI Regulation 690-2, the union arguing that the regulation 

should be rescinded while the activity contended that such action could 

not be taken. These discussions culminated in the filing of the subject 

unfair labor practice complaint by the union.

The Assistant Secretary, in his decision, held that the activity was not 

obligated to meet and confer with the union over the adoption of DLI 

Regulation 690-2. In reaching this conclusion, the Assistant Secretary 

cited the Council's decision in United Federation of College Teachers 

Local 1460 and U.S. Merchant Marine A c a d e m y . FLRC No. 71A-15 (November 20, 

1972), Report No. 30. In particular, he made reference to those portions 

of the decision wherein the Council stated that:

. . . higher level published policies and regulations 

that are applicable uniformly to more than one activity may properly limit the scope of negotiations . . .

[and] . . . the policies and regulations referred to in 

section 1 1 (a) as an appropriate limitation on the scope

240
of negotiations are ones issued to achieve a desirable 

degree of uniformity and equality in the administration 

of matters common to all employees of the agency, or, at 

least, to employees of more than one subordinate a c t i v i t y .j./ 

[Emphasis in original.]

Based on the Merchant Marine decision, the Assistant Secretary found 

that DLI Regulation 690-2 was not inconsistent wit h section 1 1 (a) of 

the O r d e r ,^7 because it was issued to achieve "a desirable degree of 

uniformity and equality" on a matter common to employees of m ore than 

one subordinate activity of the Defense Language Institute .A/ Accordingly, the Assistant Secretary concluded that the issuance of DLI 

Regulation 690-2 removed the matter of overseas assignments from the 

scope of negotiations at the local level, and therefore, that the 

activity had not violated section 19(a)(6) of the Order. The union 

appealed the Assistant Secretary's decision to the Council. The 

Council found that a ma j o r policy issue was presented and accepted the 

union's petition for review. The union and the agency (the Department 

of the Army) filed briefs with the Council.

y United Federation of College Teachers Local 1460 and U.S. Merchant 

Marine A c a d e m y , FLRC No. 71A-15 (November 20, 1972), Report No. 30, 

at 6 .

V Section 11(a) of the Order provides, in pertinent part, as follows:

Sec. 11. Negotiation of agr e e m e n t s . (a) An agency and 

a labor organization that has been accorded exclusive 

recognition, through appropriate representatives, shall 

meet at reasonable times and confer in good faith with 

respect to personnel policies and practices and matters 

affecting working conditions, so far as may be appropriate 

under applicable laws and regulations, including policies 

set forth in the Federal Personnel Manual, published 

agency policies and regulations, a national or other controlling agreement at a higher level in the agency, and 

this Order ....

In this regard, the Assistant Secretary relied on the testimony of 

the civilian personnel advisor for DLI at the unfair labor practice 

hearing,, who testified that DLI Regulation 690-2 applies to employees 

outside the English Language Branch of DLI and to employees outside 

DLI itself. Specifically, the civilian personnel advisor stated that 

"... any persons within these other branches that are qualified and 

come up on the best qualifie,.^ list will also be included on the 

referral."

241
The major policy Issue presented is as follows: Whether the Assistant 

Secretary correctly applied the Council's decision in Merchant M a r i n e , 

supra, in holding that the activity was not obligated, under 

section 11(a) of the Order, to meet and confer with the union over 

the adoption of DLI Regulation 690-2. As already indicated, the 

Assistant Secretary held, in essence, that because DLI Regulation 690-2 

provides that qualified employees outside the activity^/ may be included 

on referral lists used in making overseas assignments, it is a regulation which, pursuant to the Council's Merchant Marine decision, may 

appropriately limit the scope of negotiations between the union and 

the activity. The Council disagrees with the Assistant Secretary's 

holding for the reasons specified below.

In the Merchant Marine case, we were confronted with a situation wherein 

the union submitted for negotiation two proposals relating to faculty 

compensation at the Merchant Marine Academy, and the agency held them to 

be nonnegotiable, in part because they were contrary to agency regulations, as interpreted by the agency head. One of these regulations was 

issued by agency authority above the Merchant Marine Academy, and 

established the salary plan and schedule for certain professional employees of the Merchant Marine Academy, a single activity of the agency. 

In these circumstances the Council concluded that to permit an agency 

unilaterally to limit the scope of bargaining on otherwise negotiable 

matters peculiar to an individual unit, in a single field activity, 

merely by issuing a regulation at a higher level, would be an improper 

dilution of the section 11(a) bargaining obligation. With regard to 

the 1 1 (a) bargaining obligation we stated, as quoted in part by the 

Assistant Secretary in his decision, that:

. . . the policies and regulations referred to in section 1 1 (a) 

as an appropriate limitation on the scope of negotiations 

are ones issued to achieve a desirable degree of uniformity 

and equality in the administration of matters common to all 

employees of the agency, or, at least, to employees of more 

than one subordinate activity. Any other interpretation of 

the phrase "published agency policies and regulations," in 

the context of the Order, which would permit ^ hoc limitations on the scope of negotiations in a particular bargaining unit, would make a mockery of the bargaining obligation. 

[Emphasis in original.]

Opinion

_5/ It appears to be uncontroverted from the record of this case that 

the English Language Branch of DLI consists of only one activity, 

located at Lackland Air Force Base, Texas.

242
Also in connection wit h the published agency policies and regulations 

referenced in section 1 1 (a), we stated that:

. . . higher level published policies and regulations 

that are applicable uniformly to more than one activity 

m a y properly limit the scope of negotiations. . . .

[Emphasis supp l i e d . ]

In conclusion, we held in Merchant M a r i n e , among other things, that the 

subject agency regulation could not properly render the union's proposal nonnegotiable, and the agency h e a d’s determination of nonnegotiability was set aside.

To determine whether the Assistant Secretary correctly applied the 

Merchant Marine decision to the regulation in the instant case, we must 

resolve the issue of whether or not DLI Regulation 690-2 is "applicable 

uniformly" to mor e than one activity. Contrary to the Assistant 

Secretary, w e find that the regulation is not so applicable, but is 

rather "applicable uniformly" only to the employees of one activity.

An analysis of the terms of DLI Regulation 690-2 supports this finding. 

Sections 1 and 2 of the regulation provide as f o l l o w s :

1. P U R P O S E . The purpose of this regulation is to establish 

the policies and procedures by which Defense Language 

Institute, English Language Branch (DLIEL) personnel 

will be selected for overseas assignments.

2. S C O P E . This regulation applies to all DLIEL employees 

who have career or career conditional status and who 

are serving in positions classified in the 1700 Education and Training Occupational Group. . . . [Emphasis 

s u p p l i e d .]

It is clear from the face of these provisions that the drafters of the 

regulation intended its purpose and scope to be limited to employees 

of the English Language Branch of DLI only, which consists only of the 

one activity located at Lackland Air Force Base, Texas.

As already indicated, the Assistant Secretary, in his decision, made 

reference to the testimony of the civilian personnel advisor for the 

DLI that DLI Regulation 690-2 applies to employees outside the English 

Language Branch, because these employees, if qualified, will be included 

on referral lists to be used in making overseas assignments. This 

constituted sufficient evidence for the Assistant Secretary to find 

that the regulation is applicable to employees of other branches of DLI. 

The agency, in its brief, argues along the same line, making reference 

to paragraph 3 .i. of the regulation, which provides as follows:

243
i. All placement actions and subsequent administration of 

DLIEL LTD positions will be accomplished in accordance w i t h 

governing civilian personnel regulations. Simultaneous 

consideration must be given to both voluntary Army applicants outside the minimum area of consideration and applicants outside of DA [Department of the Army] as required 

by FPM Chapter 335 and CPR 300 (Ch. 12), Chapter 335.

Hence, because consideration must be given to voluntary applicants outside 

the minimxan area of consideration, the agency concludes that DLI Regulation 690-2 is applicable to more than one activity, and may therefore 

properly limit the scope of negotiations on overseas assignments.

W e do not believe that because a regulation requires activity management 

to consider employees from outside the activity for job assignments, that 

the regulation is therefore "applicable uniformly to more than one 

activity," within the meaning of Merchant M a r i n e .

The kind of regulation which we found to be an appropriate limit on the 

scope of negotiations in Merchant Marine was one "issued to achieve a 

desirable degree of uniformity and equality in the administration of 

matters common to . . . employees of more than one subordinate activity." 

[Emphasis in original.] Implicit in this language is the principle 

that the regulation must deal with matters that are administered at more 

than one subordinate activity. Thus, the fact that the regulation may 

affect employees at more than one subordinate activity is not sufficient.

A policy or regulation referred to in section 11(a) of the Order as an 

appropriate limitation on the scope of negotiations must direct itself 

to the management of more than a single subordinate activity. It must 

be directed to the management of more than one subordinate activity 

and deal with the administration of matters which are common to those 

activities. The regulation in this case, however, appears to us to be 

clearly directed to the management of a single activity, and only affects 

employees outside the activity in an indirect and limited way. More 

specifically, it appears to establish a procedural framework for the 

voluntary consideration of employees outside the English Language Branch 

for selection by that Branch for overseas assignments. Consequently, it 

is not a regulation which is "applicable uniformly to more than one 

activity," in that it is not directed to a manager or managers of more 

than one subordinate activity, providing guidance concerning matters 

common to employees of these a c t i v i t i e s .17 we therefore find, contrary

In its opposition to the u n i o n’s petition for review in this case, the 

agency stated that career referral lists compiled since DLI Regulation 690-2 

took effect have included employees from outside the English Language 

Branch, and that at least one employee from outside the English Language 

Branch has been selected for an overseas position. However, based on our 

holding in this case, we find these facts to be without weight.

244
to the Assistant Secretary and the contentions of the agency, that DLI 

Regulation 690-2 may not serve as an appropriate limitation on the 

scope of the negotiations at DLIEL on overseas assignments under 

section 11(a), pursuant to our holding in Merchant M a r i n e .

Accordingly, pursuant to section 2411,17(b) of the Council's rules of 

procedure [5 CFR 2411.17(b)], we remand this case to the Assistant 

Secretary for further proceedings as to the resolution of the subject 

unfair labor practice complaint, in a m a nner consistent with our 

holding herein.

By the Council.

Issued: October 25, 1974.

245
Department of the Air Force, Ellsworth Air Force Base, South D a k o t a , 

Assistant Secretary Case No. 60-3412 (RO). The Assistant Secretary 

upheld the Assistant Regional D i r e c t o r’s denial of a request by 

the Incumbent union. National Federation of Federal Employees,

Local No. 179 (NFFE), to Intervene In a representation proceeding 

Initiated by American Federation of Government Employees, AFLCIO. The Assistant Secretary found that NFFE had failed to show 

good cause for its failure to comply with his regulation 

(section 2 0 2 .5 (c)) requiring simultaneous service on interested 

parties of such a request to intervene, or to raise any material 

issue which would warrant reversal of the Assistant Regional 

Director's action. The Council accepted the Assistant Secretary's 

decision for review, finding that a major policy issue was present, 

namely: The procedural responsibility of the Assistant Secretary 

under the Order in the processing of matters brought before him 

pursuant to his regulations— noting particularly in this case that 

the Acting Area Administrator had initially, within the critical 

ten-day period, informed the other parties that NFFE "has intervened 

in this matter pursuant to section 202.5 of the Regulations of the 

Assistant Secretary and will be permitted to participate in these 

proceedings" (Report No. 51).

Council action (October 30, 1974). The Council held that the 

Assistant Secretary is empowered to prescribe regulations needed to 

administer his functions under the Order; that section 202.5 of his 

regulations is a proper exercise of his authority; and that the 

Assistant Secretary as the issuer of the subject regulation is 

responsible for its interpretation and implementation. However, 

the Council further ruled that the Assistant Secretary must apply 

his regulations in such a manner as to reasonably assure that the 

rights of affected agencies, labor organizations and employees under 

the Order are protected. This responsibility is particularly 

critical where the right of employees to select their exclusive 

representative may be abridged. The Council concluded that under 

the particular circumstances of the case, the Assistant Secretary’s 

application of his regulations did not assure that NFFE's right to 

participate in the proceeding was protected and the denial of NFFE's 

Intervention in the case abridged the right of the affected employees 

to select the exclusive representative of their choice and was 

therefore inconsistent with the purposes of the Order. The Council 

set aside the Assistant Secretary's denial of NFFE's intervention 

request and remanded the matter to the Assistant Secretary for 

appropriate action consistent with the decision of the Council.

FLRC NO. 73A-60

246
UNITED STATES 

FEDERAL LABOR RELATIONS COUNCIL 

WASHINGTON, D.C. 20415

Department of the Air Force 

Ellsworth Air Force Base,

South Dakota

Assistant Secretary 

Case No. 60-3412 (RO) 

National Federation of Federal FLRC No. 73A-60

Employees, Local No. 179

DECISION ON APPEAL FROM 

ASSISTANT SECRETARY DECISION

Pack^round of Case

This is an appeal from the Assistant Secretary's decision upholding the 

Assistant Regional Director's denial of a request by the National Federation 

of Federal Employees (NFFE) to intervene in a representation proceeding

The American Federation of Government Employees, AFL-CIO (AFGE) filed a petition for exclusive recognition between the 90th and 60th date preceding 

the expiration of an agreement between the activity and NFFE, which had 

been the exclusive representative of the employees in the unit sought for 

nearly eight years. NFFE was notified in writing by the Area Office of 

the filing of the petition and given instructions as to the required procedures necessary for it to request intervention in the proceeding. Of 

significance to the instant case is the fact that the letter made no mention 

of a requirement for simultaneous service of such a request on the other 

parties to the case. NFFE filed a timely request to intervene in the proceedings and the Area Administrator subsequently notified NFFE, AFGE and 

the activity (during the ten-day intervention period) that NFFE had intervened in the case and would be permitted to participate in the proceedings. 

However, after the close of the ten-day intervention period a motion was 

filed by the activity seeking dismissal of the request for intervention on 

the basis of the fact that NFFE had failed to serve simultaneously the 

request on all interested parties. Subsequent to an order to show cause 

why the request for intervention should not be dismissed, the Assistant 

Regional Director granted the agency's motion for dismissal of NFFE's 

request for intervention.

Upon a request for review filed by NFFE, the Assistant Secretary upheld 

the Assistant Regional D i r e c t o r’s denial of the request to intervene, 

finding that NFFE had failed to show good cause for its failure to comply

247
^ / with section 202.5(c)— ' of the Assistant Secretary's regulations or to 

raise any material issue which would warrant reversal of the Assistant 

Regional Director's action. The Assistant Secretary also noted that the 

simultaneous service requirement was clearly set out in the "Notice to 

Employees" (LMSA 1102) which had been posted by the activity.

The Council accepted the Assistant Secretary's decision for review, finding 

that a major policy issue was present, namely: The procedural responsibilities of the Assistant Secretary under the Order in the processing of 

matters brought before him pursuant to his regulations— noting particularly 

in this case that the Acting Area Administrator had initially, within the 

critical ten-day period, informed the other parties that NFFE "has intervened in this matter pursuant to section 202.5 of the Regulations of the 

Assistant Secretary and will be permitted to participate in these proceedings ."

Opinion

Section 6 (a) of the Executive Order provides for the functions of the 

Assistant Secretary, including the responsibility to decide questions as 

to appropriate unit for the purpose of exclusive recognition and related 

issues, and supervising elections to determine whether a labor organization 

is the choice of a majority of the employees in an appropriate unit as 

their exclusive representative, and certifying the results. Section 6 (d) 

empowers the Assistant Secretary to prescribe regulations needed to 

administer his functions under the Order. Clearly section 202.5(c) of the 

Assistant Secretary's regulations, which is part of the procedure whereby 

decisions are made as to appropriate unit and participation in elections 

to determine an exclusive representative, is a proper exercise of the 

Assistant Secretary's authority. Moreover, the Assistant Secretary, as 

the issuer of the regulation is responsible for its interpretation and 

implementation. However, the Assistant Secretary must apply his regulations 

in such a manner as to reasonably assure that the rights of affected agencies, 

labor organizations and employees under the Order are protected. This 

responsibility is particularly critical where, as here, the right of 

employees to select their exclusive representative may be abridged.

Section 202.5(c) provides:

(c) No labor organization may participate to any extent in any 

repres.entation proceeding unless it has notified the Area 

Administrator in writing, accompanied by .its showing of interest 

as specified in paragraph (a) of this section, of its desire to 

intervene within ten (10) days after the initial date of posting 

of the notice of petition as provided in § 202.4(a), unless 

good cause is shown for extending the period. Simultaneously 

the filing of a request for intervention, copies of such 

request, excluding the showing of interest, shall be served on 

all known interested parties, and a written statement of such 

service shall be filed with the Area Administrator.

248
In the instant case, the NFFE local was the incumbent exclusive representative and its identity and status were known to the AFGE and the 

activity. The Area Administrator communicated with the NFFE local and 

provided it with what appeared to be a complete statement of the requirements of the intervention procedure. His letter set forth in some detail 

the process of complying with section 202.5 of the Assistant Secretary's 

rules, but m ade no mention of the requirement for simultaneous service 

of the intervention request on all interested parties. NFFE's local 

president thereafter complied with all of the stated requirements and was 

subsequently informed that NFFE was in compliance with the rules and had 

been permitted to intervene. This notice was issued when there was time 

available for NFFE to correct the deficiency in its intervention, that 

is, to perform the ministerial act of serving the other parties with its 

request to intervene w ithin the prescribed time period for intervention. 

Moreover, the other parties had actual notice of NFFE's intervention 

request in that they had received copies of the Area Administrator's 

letter granting the request so the purpose of the service requirement had 

been met.

Under the circumstances of this case, as described above, we conclude that 

the Assistant Secretary's application of his regulations did not assure 

that NFFE's right to participate in the proceeding was protected and, m o r e ­

over, the denial of NFFE's intervention in this case abridged the right 

of the affected employees to select the exclusive representative of their 

choice. Accordingly, we find that the Assistant Secretary's denial of 

NFFE's intervention was inconsistent with the purposes of the Order.

For the foregoing reasons, and pursuant to section 2A11.17 of the Council's 

rules of procedure, we set aside the Assistant Secretary's denial of 

NFFE's request for review of the Assistant Regional Director's denial of 

NFFE's intervention request and remand the matter to the Assistant Secretary 

for appropriate action consistent with this decision of the Council.

By the Council.

Issued: October 30, 197A.

249
U.S. Marshals Service, District of Columbia. Assistant Secretary 

Case No. 22-5174 (RO). The Assistant Secretary upheld the 

Assistant Regional Director's dismissal of a cross-representation 

petition filed by the U.S. Marshals Association, Ind., finding 

that the cross-petition was not timely filed; that insufficient 

evidence was adduced of any prejudicial statements or conduct of 

any area office employee; and that allegations by the Marshals 

Association concerning the legality and validity of the waiver of 

exclusive recognition by American Federation of Government 

Employees Local 2272 would not be considered, being raised for the 

first time in the request for review submitted to the Assistant 

Secretary. The Marshals Association appealed to the Council, 

contending that the decision of the Assistant Secretary appears 

arbitrary and capricious because of his refusal to consider 

allegations erroneously found to be raised for the first time on 

appeal, and his refusal to explain the area office policy in 

counting the posting period; and that a major policy issue is 

presented as to whether an officer of a local may waive exclusive 

recognition or whether local members must be given an opportunity 

to vote on the matter.

Council action (October 30, 1974). The Council held that the 

Assistant Secretary's decision does not appear arbitrary and 

capricious since it does not appear that the Assistant Secretary 

acted without justification in his findings. The Council noted in 

this regard that the Assistant Secretary relied upon established 

policy reflected in his rules and in his previously published 

Report Number 46. The Council also held that the subject decision 

does not present a major policy issue, since no persuasive reasons 

were advanced for overturning the Assistant Secretary's policy 

that an officer of a labor organization may waive exclusive 

recognition. Accordingly, without passing on the timeliness of 

the Marshals Association appeal to the Council, the Council denied 

review of the appeal under'section 2411.12 of the Council's rules 

of procedure (5 CFR 2411.12). The Council likewise denied various 

procedural requests by the Marshals Association.

FLRC NO. 74A-35

250
----UNITED STATES

FEDERAL LABOR RELATIONS COUNCIL

1900 E STREET. N.W. • WASHINGTON. D.C. 204X5

October 30, 1974

Mr. Wallace G. Roney

Acting President

U.S. Marshals Association, Ind.

P.O. Box 1349

Washington, D.C. 20013

Re: U.S. Marshals Service, District of 

C o l u m b i a , Assistant Secretary Case 

No. 22-5174 (RO), FLRC No. 74A-35

Dear Mr. Roney:

The Council has carefully considered your petition for review of the 

Assistant S e c r e t a r y’s decision in the above-entitled case.

The Assistant Secretary upheld the Assistant Regional D i r e c t o r’s dismissal 

of an RO petition filed in the above named case by the Washington, D.C. 

United States Marshals Association, Ind. In doing so he found: (1) that 

the subject cross-petition was not timely filed in accordance with 

Section 202.5(b) of his Regulations and in the absence of sufficient 

evidence establishing good cause for extending the posting period of the 

initial petition (Case No. 22-5070 (RO)); (2) no indication of any improper 

statements or conduct on the part of any LMSA Area Office employee (other 

than your bare assertions) which in any way might be prejudicial to the 

u n i o n’s position; and (3 ) allegations concerning the legality and validity 

of the American Federation of Government Employees, Local 2 2 7 2 's waiver of 

exclusive recognition would not be considered because it was raised for 

the first time in the request for review.

In your appeal you contend, in summary, that the decision of the Assistant 

Secretary is arbitrary and capricious because of his refusal to consider 

allegations erroneously found by the Assistant Secretary to be raised for 

the first time on appeal, concerning the "illegal and invalid" waiver of 

exclusive recognition by AFGE and the posting of the notice of petition 

during a period when 85% of the employees at the Marshals Office were on 

leave or detail, and his refusal to explain the Washington Area Office 

policy "in counting the ten-day posting period in a nationwide petition." 

Additionally, in effect, you contend that the Assistant Secretary's 

decision presents a major policy issue as to whether an officer of a Local 

may waive exclusive recognition or whether Local members must be given an 

opportunity to vote on the matter. The appeal also requested the Council 

to stay the Assistant S e c r e t a r y’s decision and to hold the AFGE petition 

in abeyance pending the Council decision in the instant appeal.

251
In our view, your petition for review of the Assistant Secretary's decision 

does not meet the requirements of Section 2411.12 of the Council rules; 

his findings and decision do not appear arbitrary and capricious nor do 

they present a major policy issue. With respect to your contentions, it 

does not appear that the Assistant Secretary acted without reasonable 

justification in his decision. Instead, the Assistant Secretary relied 

upon established policy reflected in his rules and previously published 

Report Number 46. Further, your appeal presents no persuasive reasons 

for overturning the Assistant Secretary's policy that an officer of a 

labor organization may waive exclusive recognition. Therefore, we 

conclude that the Assistant Secretary's decision does not present a major 

policy issue.

Accordingly, without passing upon the question of the timeliness of your 

petition for review which was filed with the Council, review of your 

appeal is hereby denied since it fails to meet the requirements as 

provided under Section 2411.12 of the Council's rules of procedure. Likewise the Council has directed that the union's requests for stays be 

denied under Section 2411.47(c) of the Council's rules of procedure.

By the Council.

cc; A/SLMR

Dept, of Labor

K. Holecko 

Dept, of Justice

C. Webber 

AFGE

252
National Labor Relations Board, Region 17, and National Labor 

Relations Board, and David A. N i x o n , Assistant Secretary Case 

No. 60-3035 (CA). Pursuant to section 2411.4 of the Council's 

rules (5 CFR 2411.4) and section 203.25(d) of his regulations 

(29 CFR 203.25(d)), the Assistant Secretary referred to the 

Council for decision the present case as concerns the following 

major policy Issues: (1) Whether applicable laws and regulations. 

Including Federal Personnel Manual policies, preclude an employee 

or his representative from seeing and adducing evidence from 

another employee’s appraisal In an unfair labor practice proceeding 

held pursuant to section 6(a)(4) of the Order; and (2) If an 

employee or his representative is so precluded, does such prohibition apply also to the Assistant Secretary, his representatives 

and/or Administrative Law Judges acting pursuant to their responsibilities under the Order?

Council action (October 31, 1974). On the basis of the Civil 

Service Commission's Interpretation of the Federal Personnel 

Manual directives relating to the two major policy Issues posed, 

the Council held that the FPM: (1) Prohibits an employee or his 

representative from seeing and adducing evidence with respect to 

the appraisal of another employee in the context of an unfair 

labor practice proceeding; but (2) permits the Assistant Secretary, 

his representative and/or the Administrative Law Judge, acting 

pursuant to their responsibilities in a proceeding under the Order, 

to see the appraisal of another employee if review of such 

appraisal is necessary for the execution of official responsibility, 

but only if done in a manner that maintains the confidentiality of 

that appraisal, while accommodating the need for establishment of 

a foirmal file in open proceeding by adhering to specific guidelines, 

as found for example in the Handbook for Discrimination Complaints 

Examiners, published by the Commission in April 1973. The Council 

determined that procedures similar to those enumerated in the 

Handbook are consistent with the purposes of the Order, thus 

enabling the Assistant Secretary to carry out his responsibilities 

under the Order to decide unfair labor practices, using all the 

necessary and relevant facts while protecting the Federal employee's 

right to privacy, as required under applicable law and regulation.

FLRC NO. 73A-53

253
UNITED STATES 

FEDERAL LABOR RELATIONS COUNCIL 

WASHINGTON, D.C. 20A15

National Labor Relations 

Board, Region 17, and 

National Labor Relations Board

Assistant Secretary 

, Case No. 6 0 - 3 0 3 5 (CA)

FLRC No. 73A-53

David A. Nixon

DECISION ON REFERRAL OF MAJOR POLICY 

ISSUES FROM ASSISTANT SECRETARY

Background of Case

During his consideration of a motion and a cross motion filed by the 

parties in connection with his Decision and Remand in A / SLMR No. 295, the 

Assistant Secretary found that certain major policy issues had been raised 

which required resolution by the Federal Labor Relations Council. Therefore, pursuant to Section 2411.4 of the Council's Rules and Section 203.25(d) 

of the Assistant Secretary's Regulations, he referred the following major 

policy issues to the Council for decision: (1) "whether applicable laws 

and regulations, including policies set forth in the Federal Personnel 

Manual, preclude an employee or his representative from seeing and 

adducing evidence with respect to the appraisal of another employee in 

the context of an unfair labor practice proceeding held pursuant to 

Section 6(a)(4) of Executive Order 11491, as amended, and (2), if an employee 

or his representative is so precluded from seeing and adducing evidence 

with respect to the appraisal of another employee, does such prohibition 

apply also to the Assistant Secretary, his representatives and/or Administrative Law Judges acting pursuant to their responsibilities under the 

Order?"

Opinion

Since the issues posed by the Assistant Secretary's referral raised a 

question as to the effect of "applicable law and regulations, including 

policies set forth in the Federal Personnel Manual,"the Council asked the 

Civil Service Commission for an interpretation of its directives in 

relation to the two major policy issues.

254
T h e applicable Coinmission policy directive is found in subchapter 5, 

Chapter 335 of the Federal Personnel Manual, which states in 

part that

"... an employee is not entitled to see an appraisal of 

another employee. Nevertheless, the representative of an 

employee (even though an employee himself) may see the 

employee's appraisal, and an employee may see the appraisal 

of other employees whe n dictated by his official responsibilities, for example, as member of a promotion board."

This directive prohibits an employee or his representative from 

seeing the appraisal of another employee under most circumstances, 

including the circumstances of casual interest or the pursuit of a 

complaint through grievance, unfair labor practice, or other formal 

or infonnal machinery. It, on the other hand, by its own terms 

clearly permits the Assistant Secretary, his representative, an 

Administrative L a w Judge, or any other person having official 

responsibility in connection with the investigation, examination, 

or decision on matters at issue in a proceeding to see the appraisal 

of another employee if review of the appraisal is necessary for the 

execution of that responsibility. However, such person, upon gaining 

access to the appraisal, must carry out his responsibility (including 

any responsibility he may have to develop and make available a 

complete record or file containing all documents related to the 

proceeding) in such a fashion as to not compromise the fundamental 

requirement that, except under limited circumstances not germane 

here, "an employee is not entitled to see an appraisal of another 

e m p l o y e e ."

Basic to the above policy is the recognition that disclosure to 

employees (or their representatives) of supervisory appraisals of 

performance of other employees, or the inclusion of such appraisals 

in an open file, is potentially clearly invasive of their personal 

privacy. The above policy, and this interpretation, also recognizes 

that "official responsibilities" in the context of the above cited 

directive refers to those responsibilities officially assigned, 

supervised, etc., by or through appropriate agency authority. The 

fact that a function may appropriately be performed on official time 

does not alone serve to bring it within the embrace of the term, 

"official responsibilities." Reasonable amounts of official time may 

be permitted for a number of activities that are not appropriately 

directed or supervised by proper agency authority and which simply could 

not be reasonably construed as official responsibilities of the 

employee involved. Examples include official time for an employee to 

prepare an adverse action defense, or official time to serve as a 

member of a union negotiating team.

The Commission replied as follows;

255
The above policy of course raises the secondary question of h ow 

an employee who has access to an appraisal by virtue of his official 

responsibility for investigating, examining, or adjudicating a 

complaint can protect the privacy of employees by maintaining the 

confidentially of that appraisal under circumstances where that 

official is required to develop and make available a complete record 

or file containing all documents relating to the proceeding.

Illustrations of how this may be accomplished are found in a number 

of proceedings for which the Commission has responsibility. For 

example, the grievance system established under the authority of 

Part 771 of the Civil Service Regulations requires, as a matter of 

grievance policy, that an agency grievance examiner "must establish 

an employee grievance file. This is an independent file, separate 

and distinct from the Official Personnel Folder. The grievance file 

is the official record of the grievance proceedings and must contain 

all documents related to the grievance ..." (Subchapter 3 of 

Federal Personnel Manual Chapter 771)

However, with respect to matters that cannot be disclosed to the 

grievant, Subchapter 1 of that chapter provides, in pertinent part, 

that "information to which the examiner is exposed which cannot be 

made available to the employee in the form in which it was received 

must be included in the file in a form which the employee can review 

or must not be used." Thus, under that grievance system, an 

examiner may conclude that the contents of a supervisory appraisal are 

either not relevant or not necessary for the resolution of the matter 

and thus need not be made a part of the file or, if its contents are 

relevant and necessary, then he must include it in the file "in a 

form which the employee can review."

For an illustration of how this can be done, we draw from another 

proceeding— complaints of discrimination processed under Part 713 of 

the Civil Service Regulations. The Handbook for Discrimination 

Complaints Examiners published by the Commission in April, 1973, gives 

specific instructions in this area and does so with specific reference 

to supervisory appraisals of performance. That handbook provides as 

follows:

"Supervisory Appraisals

!• Disclosure — an invasion of privacy

The disclosure of supervisory appraisals of performance and 

potential of employees other than the complainant, to the 

complainant, constitutes an unwarranted invasion of the 

personal privacy of the employees concerned. However, this 

does not preclude the investigator or Complaints Examiner from 

reviewing the supervisory appraisals of other employees and 

including information from them in the record to the extent

256
that this can be done without identifying a particular employee 

as being the subject of a particular appraisal. Witnesses may 

testify at a hearing to matters relevant to supervisory 

appraisals of performance and potential of employees.

2. Concealing name of person appraised

W h e n the supervisory appraisals of several other employees are 

involved in a complaint, it might be possible to make them 

anonymous by taping over or otherwise concealing the e m p l o y e e s’ 

names and other identifying information. Copies of the tapedover appraisals can then be made and included in the file. If 

the form and content of the appraisals do not lend themselves 

to this kind of treatment to assure confidentiality, it may be 

possible to include pertinent extracts and, if so, this should 

be done.

3. Narrative statement of

If there is no way that the appraisals or extracts therefrom 

can be included without identifying the subject of each appraisal, 

the only alternative is for the investigator or Complaints 

Examiner to include in the record a narrative statement of the 

results of his review of the appraisals. This can consist of 

something as simple as a statement that the investigator or 

Examiner had found the appraisals not material to the complaint, 

or something as extensive as a paraphrase of each appraisal.

4. Challenge to accuracy of narrative statements

If the complainant challenges the accuracy of the material 

included by the investigator concerning other employees' 

appraisals, the Examiner may verify the accuracy of that 

material by reviewing the appraisals himself. Similarly, the 

deciding official can make an independent verification if he 

feels the need to do so. This would not be in conflict with 

the instructions in Appendix B of FPM Chapter 713 because the 

purpose of any review of the appraisals by the Examiner or the 

deciding official would be to assure the accuracy of the 

information in the record, not to acquire and consider inform ation not in the record."

The above illustrations are cited not to suggest their specific 

applicability in the case at hand but rather to illustrate how the 

policy of nondisclosure of supervisory appraisals cited in 

Chapter 335 of the Federal Personnel Manual may be accommodated in 

open proceedings where a formal file or record is required to be 

established.

257
Therefore, in response to the Assistant Secre t a r y’s questions, the 

Federal Personnel Manual: (1) prohibits an employee or his representative from seeing and adducing evidence with respect to the appraisal 

of another employee in the context of an unfair labor practice proceeding, 

but (2) permits the Assistant Secretary, his representative and/or the 

Administrative Law Judge, acting pursuant to their responsibilities in a 

proceeding under the Order, to see the appraisal of another employee if 

review of such appraisal is necessary for the execution of official 

responsibility, but only if done in a manner that maintains the confidentiality of that appraisal, while accommodating the need for establishment of a formal file in open proceeding by adhering to the guidelines 

set forth in the Civil Service Commission response.

While the Council notes that the Civil Service regulations set forth by 

way of example are not by their own terms applicable to the situation here 

presented, adoption of substantially similar procedures by the Assistant 

Secretary would be consistent with the purposes of the Order while still 

protecting the privacy of the Federal employees, as required by applicable 

law and regulation. That is, such procedures would enable the Assistant 

Secretary to carry out his responsibility of deciding unfair labor practice 

complaints based upon all necessary and relevant facts, and still protect 

the privacy of Federal employees.

By the Council.

Conclusion

azier III 

Director

Issued: October 31, 1974

258
NFFE Local 997 and Ames Research Center, National Aeronautics 

and Space Administration, Moffett Field, California. The agency 

head issued a determination as to the nonnegotiability of a 

proposal submitted by NFFE Local 997, which determination was 

properly served on the local on June 13, 1974. Under the Council's 

rules of procedure, any appeal from this determination was due 

in the Council's office no later than July 3, 1974. However, 

apparently as a result of a delay in communication between the 

local and the u n i o n’s national office concerning the agency 

head determination and the l o c a l’s desire to initiate an appeal, 

the subject appeal was not filed until August 2, 1974.

Council action (October 31, 1974). The Council ruled that the 

delay in communication which here occurred does not warrant the 

waiver by the Council of the time limit in its rules, citing its 

earlier decision in NFFE Local 1633 and U.S. Department of 

Agriculture, Federal Crop Insurance Corporation, FLRC No. 73A-14 

(May 22, 1973), Report No. 39. Accordingly, as the appeal was 

untimely filed, and apart from other considerations, the Council 

denied the union's petition for review.

FLRC NO. 74A-55

259
V UNITED STATES

FEDERAL LABOR RELATIONS COUNCIL

, V rj/ iv ^ 1900 E STREET, N.W. • WASHINGTON, D.C. 20415 S:

% r^ -4

October 31, 1974

Mr. John P. Helm 

Staff Attorney 

National Federation of 

Federal Employees 

1737 H Street, NW. 

Washington, D.C. 20006

Re: NFFE Local 997 and Ames Research Center,

National Aeronautics and Space Administration, 

Moffett Field, California, FLRC No. 74A-55

Dear Mr. Helm:

Reference is made to your petition for review of an agency h e a d’s decision 

on a negotiability issue, filed with the Council in the above-entitled 

case.

The Council has carefully considered all the documents submitted in this 

case, including your petition and the statement of position filed by the 

agency. For the reasons indicated below, the Council has deteirmined that 

your petition cannot be accepted for review.

Section 2411.23(b) of the Co u n c i l’s rules specifically provides that an 

appeal must be filed within 2 0 days from the date the agency head's determination was served on the labor organization. Under section 2411.45(a), 

such appeal must be received in the Co u n c i l’s office before the close of 

business of the last day of the prescribed time limit.

The Council has been administratively advised by the union and the agency 

that the agency head's determination in this case was served on NFFE 

Local 997 on June 13, 1974; therefore, absent any extension of time granted 

by the Council, your appeal was due on July 3, 1974. Your petition for 

review was filed with the Council on August 2, 1974.

You assert in your appeal that the date of July 17, 1974 should be used 

in determining whether the petition is timely. Y o u indicate in this 

regard that, although the national office of NFFE had corresponded 

with NASA headquarters before the agency head determination had been 

made, the national office was not served with a copy of the determination 

and was unaware of the determination until the president of NFFE Local 997 

contacted the national office to request an appeal to the Council. The 

national office then requested a copy of the determination from NASA

260
headquarters, w h i c h copy was received on July 17, 1974 and it is this 

date, as already mentioned, which y o u contend should constitute the 

date of service on the union. We cannot agree wit h your contention.

According to the record, the correspondence from NFFE's national office 

to the agency, before the agency head's determination, stated: "We 

have suggested to our local that they move immediately to request local 

management to request a ruling from your office of the negotiability of 

this issue" (emphasis added). The agency h e a d’s determination of nonnegotiability subsequently was issued regarding Local 9 9 7 *s proposal 

and was properly served on the Local. While there appears to have been 

a delay in communication between Local 997 and the national office of 

NFFE regarding the agency h e a d’s determination and the local's desire 

for an appeal of that determination to the Council, such delay does not 

warrant the waiver by the Council of the time limit in its rules. See 

NFFE Local 1633 and U.S. Department of Agriculture, Federal Crop Insurance 

Corporation, FLRC No. 73A-14 (May 22, 1973), Report No. 39.

Accordingly, as your appeal was untimely filed, and apart from other 

considerations, the Council has directed that your petition for review 

be denied.

For the Council.

Sincafrely,

Henry , 

Execu

razier II 

Director

cc: J. C. Fletcher 

NASA

261
Small Business Administration and American Federation of Government 

Employees, Local 2532 (Kleeb, Arbitrator). The Council accepted the 

agency's petition for review of the arbitrator's award, which award 

ordered the agency to promote the grievant retroactively with backpay, 

on the ground that: (1 ) the arbitrator assertedly exceeded his authority 

by failing to decide the question submitted to arbitration and by deciding 

issues not included therein, and (2 ) the award assertedly violated the 

Back Pay Act and its implementing regulations (Report No. 45).

Council action (November 6 , 1974). The Council found that the arbitrator 

decided the question submitted to arbitration, that he did not determine 

issues not included in that question, and that he did not exceed his 

authority. Further, based on the advice of the Civil Service Commission, 

which agency is authorized under the Back Pay Act to prescribe regulations 

to implement that Act, the Council held that the award does not violate 

the Back Pay Act (5 U.S.C. § 5596) and the implementing CSC regulations 

(5 CFR 550.803). Accordingly, pursuant to section 2411.37(b) of its 

rules of procedure (5 CFR 2411.37(b)), the Council sustained the arbitrator's award.

FLRC NO. 73A-44

262
UNITED STATES 

FEDERAL LABOR RELATIONS COUNCIL 

WASHINGTON, D.C. 20415

Small Business Administration

and FLRC No. 73A-44

American Federation of Government 

Employees, Local 2532

DECISION ON APPEAL FROM ARBITRATION AWARD

Background of Case

This appeal arose from the arbitrator's determination that the agency's 

failure to promote the grievant, Leonard A. Rosen, to a GS-14 position 

violated the parties' negotiated agreementand from the arbitrator's 

award ordering the agency to promote Rosen retroactively to the GS-14 

position with backpay.

Based on the findings of the arbitrator and the entire record, the circumstances of the case appear as follows:

In October 1972, the agency decided to add a Program Development Specialist, 

GS-14, position in its Procurement and Management Assistance (PMA), Office 

of Business Development (OBD), Project Development Division, Washington,

D.C., where, at the time, there were two incumbents in that classification. 

The agency gave notice of the vacancy by posting a job opportunity 

announcement and Rosen, a Price Analyst, GS-13, in PMA/OBD, was one of the 

candidates. According to the arbitrator, it was undisputed that Rosen was 

properly selected for the position on November 30, 1972. On that date, the 

selecting official called Rosen, then on vacation, and notified him that he 

had been selected to fill the position. The selecting official advised the 

agency's personnel office of Rosen's selection and, on December 2, 1972, 

that office notified the unsuccessful candidates of Rosen's selection.

The personnel office also received a Form SF-52^^requesting that Rosen's 

promotion be effected. The only step remaining for the personnel office 

was to make on a Form SF— 5 0 ^ a written memorial of Rosen's promotion since, 

according to the arbitrator, the Form SF-52 had, in effect, all necessary

U In so deciding, the arbitrator also determined that the agency violated 

the agency's merit promotion program and the Federal Personnel Manual (FPM) .

7J Civil Service Commission (CSC) Standard Form 52 titled "Request for 

Personnel Action."

3/ CSC Standard Form 50 titled "Notification of Personnel Action."

263
concurrences^/and the administrator had delegated authority to the personnel 

director to execute Form SF-50's without further approval. However, the 

agency delayed execution of a Form SF-50 for Rosen until signed concurrences 

of his selection at the associate and/or assistant administrator levels were 

obtained on a CO Form 1641.'as required by agency internal administrative 

procedures. Under those procedures, all promotions to GS-13 positions and 

above had to have such concurrences. The arbitrator found that the agency's 

use of CO Form 164, which was not incorporated in the a g e n c y’s merit 

promotion program, was not permissible under either the agreement, the 

agency's merit promotion program or the FPM. A partially completed CO Form 

164 with the notation "within authorized ceiling" was seen in Rosen's 

personnel file and copied by the grievant and union president. The personnel director testified that he was not aware of the existence of the 

incompleted form; the agency was unable to produce it at the arbitration 

hearing because, according to the arbitrator, it had been removed or 

destroyed.

About November 30, 1972, the date that Rosen was selected, the agency made 

a decision to reduce the number of positions in PMA from 94 to 8 6 ; one of 

the positions to be eliminated was the third position of Program Development 

Specialist for which Rosen had been selected. This decision was announced 

at an agency management meeting on December 11, 1972. In the meantime, on 

December 8 , 1972, the associate administrator of PMA requested the personnel 

director to cancel the job opportunity announcement of the vacancy, which 

Rosen had been selected to fill, due to the "recent reduction in the PMA's 

Central Office personnel ceiling which has necessitated a reordering of 

priorities."

On December 14, 1972, personnel posted another job opportunity announcement 

cancelling the prior job opportunity announcement of the vacancy in dispute. 

On December 18, 1972, the personnel office returned to Rosen his original 

application with notations informing him that the prior job opportunity 

announcement had been cancelled, and that its previous notification to Rosen 

of his selection for the GS-14 position was amended. After the vacancy was 

cancelled, a third employee, already classified as a GS-14, was brought in 

to do the work of Program Development Specialists along with the two other 

GS-14's.

Rosen filed a grievance, joined in by the union, stating that the basis of 

the grievance is the "agency's violation of the General Agreement Article 

XXII, ^ferit Staffing and Promotion" and, more specifically, alleging a

U According to the arbitrator, the agency admittedly had destroyed the 

Form SF-52 for Rosen by the time of the arbitration hearing.

The agency's CO Form 164 is titled "Proposed Personnel Actions Review 

Sheet."

264
v i o lation of Article XXII, i, of the General Agreement.— ^The grievance 

requested that the violation be remedied by the promotion of Rosen to the 

position of Program Development Specialist, GS-14, with backpay to 

December 10, 1972.

The agency denied the grievance on the grounds that the position for which 

Rosen had been "tentatively" selected was eliminated when personnel ceilings 

were reduced after the President's freeze directive (dated December 12, 1972, 

and ordering a freeze on all hirings and promotions),Z/and its internal 

administrative procedures had not been completed prior to the freeze.

The parties ultimately submitted the grievance to arbitration.

The Arbitrator's Award

The parties did not enter into a submission agreement formulating the question or questions to be posed to the arbitrator^'; instead, they submitted

J6/ Section 1 of Article XXII (Merit Staffing and Promotions) provides:

If there are a sufficient number of basically qualified 

candidates to require the convening of a Merit Promotion 

Panel, such panel shall designate those who are best 

qualified. In any case in which a panel has designated 

at least five persons as best qualified, the selecting 

official shall select from among those designated best 

qualified.

IJ On the following day (December 13, 1972), the CSC issued questions and 

answers about the freeze, which in relevant part stated:

. . . where an authorized official has offered a promotion 

to a properly selected employee prior to the President's 

directive, the promotion may be made.

The arbitrator therefore concluded that the agency was not justified in 

using the freeze as an excuse for not promoting Rosen and, moreover, that 

the agency's statement the personnel ceilings were reduced after the 

Presidential freeze was factually incorrect because the PMA associate 

administrator had acted to cancel the vacancy on December 8 before the 

freeze order was issued on December 12, 1972.

8^/ However, the agency contends, in effect, that the parties' joint letter 

to the Federal Mediation and Conciliation Service requesting a panel of 

arbitrators was a form of submission agreement. The agency states, without 

contradiction, that the parties agreed there the issue to be determined by 

the arbitrator was:

[T]he interpretation of Article X X I I (1) of the General 

Agreement. The Union's position prior to this letter 

was the same. (Citations omitted.)

265
their separate versions. The arbitrator in his decision formulated the 

issue as follows:

Did SBA violate Article XXII, i, of the General Agreement 

between SBA and AFGE, Local 2532, b y not promoting the Grievant,

Leonard Rosen, to the position of Program Development Specialist,

GS-IA, after he had been selected to fill this position?

The parties do not challenge this formulation of the issue. However, both 

the agency and the union, without objection, presented evidence and arguments on other issues such as the meaning and the applicability of the 

agency's merit promotion program and the FPM to the grievant's case. (It 

should be noted that Article XXII makes specific reference to the agency's 

merit promotion program, which was adopted in accordance with requirements 

established in the FPM, Ch. 335, Subcjh. 2.)

The arbitrator determined that the grievance should be granted on the 

grounds that the agency's course of action following the grievant's selection 

for the GS-IA position was in violation of the agreement. In so deciding, 

he also determined that the agency had violated FPM requirements, and the 

a g e n c y’s merit promotion program. As a remedy, his award ordered the agency 

to place Rosen in the position of Program Development Specialist, GS-14, 

effective December 10, 1972, and to reimburse h i m for any losses he may have 

suffered from December 9, 1972, to the date he is placed in the GS-14 

position.

Agency's Appeal to the Council

The agency filed a petition for review of the arbitrator's award with the 

Council. Under section 2411.32 of the Council's rules of procedure, the 

Council accepted the petition for review insofar as it relates to two 

exceptions. One exception alleges that the arbitrator did not decide the 

question submitted to arbitration and determined issues not included in the 

question submitted to arbitration, and thereby exceeded his authority. The 

other exception alleges that the award violates the Back Pay Act (5 U.S.C.

§ 5596) and the Implementing regulations prescribed by the CSC (5 CFR 550.803). 

The Council also granted the agenty's request for a stay pending the 

Council's determination of the instant appeal.

Both the agency and the union filed briefs.

Opinion

Section 2411.37(a) of the Council's rules of procedure provides, in pertinent part, that "An award of an arbitrator shall be modified, set aside 

in whole or in part, or remanded only on grounds that the award violates 

applicable law, appropriate regulation, . . . or other grounds similar to 

those applied by the courts in private sector labor-management relations."

266
We consider first the agency's exception alleging that the arbitrator 

exceeded his authority by failing to decide the question submitted to 

arbitration and by deciding issues not included in the question submitted.

As previously stated, the a r b i t r a t o r’s unchallenged formulation of the 

issue?.'in this case is:

Did SBA violate Article XXII, i, of the General Agreement 

between SBA and AFGE, Local 2532, by not promoting the Grievant,

Leonard Rosen, to the position of Program Development Specialist,

GS-IA, after he had been selected to fill this position?

When the substance of his award is examined, it is clear that the arbitrator 

answered the question at issue, i.e., the alleged violation of Article XXII, 

i. As previously stated, the arbitrator determined that the agency had 

violated the agreement which, of course, includes Article XXII, i. This 

general determination clearly encompasses the arbitrator's answer to the 

specific question at issue. Furthermore, the award granted the grievance, 

and the agency itself contends that the violation of Article XXII, i, was the 

only issue raised by the grievance.

The agency also alleges that the arbitrator neglected to "interpret” or to 

discuss the meaning of Article XXII, i, and that he did not mention 

Article XXII, i, in his opinion accompanying the award. However, as the 

Council has indicated, it is the award rather than the conclusion or the 

specific reasoning employed that is subject to challenge. See American 

Federation of Government Employees, Local 12 and U.S. Department of Labor 

(Daly, Arbitrator), FLRC No. 72A-55 (September 17, 1973), Report No. 44.

The arbitrator is not required to discuss the specific agreement provision 

involved; nor does the fact that the opinion accompanying his award did not 

mention Article XXII, i, establish that the arbitrator did not rule upon it. 

See, e.g.. Meat Cutters, Local 195 v. Cross Brothers Meat P ackers, 85 LRRM 

2935, 2937 (E.D. Pa. 1974) and cases cited therein. In this regard, the 

Supreme Court stated in United Steelworkers v. Enterprise Wheel and Car 

Corp., 363 U.S. 593, 598 (1960) that:

* * * A mere ambiguity in the opinion accompanying an award, 

which permits the inference that the arbitrator may have 

exceeded his authority, is not a reason for refusing to enforce 

the award. Arbitrators have no obligation to the court to give 

their reasons for an award. To require opinions free of ambiguity 

may lead arbitrators to play it safe by writing no supporting 

opinions. This would be undesirable for a well-reasoned opinion 

tends to engender confidence in the integrity of the process and 

aids in clarifying the underlying agreement. * * *

9/ In the absence of a submission agreement, as in this case, the arbitrator's unchallenged formulation of the question may be regarded as the 

equivalent of a submission agreement. American Federation of Government 

Employees, Local 12 (AFGE) and U.S. Department of Labor (Jaffee, Arbitrator), 

FLRC No. 72A-3 (July 31, 1973), Report No. 42.

267
These principles regarding the interpretation of negotiated provisions are 

likewise applicable in the Federal sector under section 2411.32 of the 

Council’s rules of procedure.

The agency contends that the arbitrator determined issues not included in 

the question at issue when he also determined that the agency had violated 

the agency’s merit promotion program and FPM rules and regulations. In 

this regard, the agency relies on the C o u n c i l’s decision in FLRC No. 72A-3, 

stating that; "... if the arbitrator's award determines an issue not 

included in the subject matter submitted to arbitration, a challenge to the 

award will be sustained on the ground that the award is in excess of his 

authority." The a g e n c y’s reliance on that portion of the decision is 

misplaced. The Council's decision in FLRC No. 72A— 3 also stated that:

In addition to determining those issues specifically included

in the particular question submitted, the award may extend to

Issues that necessarily arise therefrom.

Moreover, as stated previously, both parties presented, without objection, 

their respective positions on the meaning and applicability of the agency's 

merit promotion program and the FPM to the grievant's case. Thus, the 

arbitrator of necessity considered and decided the meaning of CSC requirements in the FPM pertaining to agency merit promotion programs as well as the 

agency's own regulations establishing such a program in order to decide the 

specific question at issue. In the Federal sector, arbitrators in resolving 

grievances under negotiated agreements must often consider the meaning of law 

and regulations, including the FPM, since the agreements often deal with 

substantive matters which are also covered by such law or regulations. Cf. 

Local Lodge 830, International Association of Machinists and Aerospace 

Workers, and Louisville Naval Ordnance Station, Department of the N a v y ,

FLRC No. 73A-21 (January 31, 1974), Report No. 48 at pp. 6-7 of the Council's 

decision. Moreover, as previously stated, the agency's merit promotion 

program, which was established pursuant to the FPM, was specifically 

referenced in the negotiated agreement itself in this case. Therefore, we 

are of the opinion that the specific question at issue necessarily included 

the issues of the agency's alleged violation of the agency's merit promotion 

program and the FPM.

We are of the opinion that the arbitrator decided the question submitted to 

arbitration, that he did not determine issues not included in that question, 

and that he did not exceed his authority.

As previously stated, the other question before the Council is whether the 

arbitrator's award violates the Back Pay Act (5 U.S.C. § 5596) and CSC 

implementing regulations (5 CFR 550.803).

Since the Civil Service Commission is authorized, under 5 U.S.C. § 5596, to 

prescribe regulations to carry out the provisions of the Act, that agency

268
was requested, in accordance wit h Council practice, for an interpretation 

of the Bac k Pay Act and the implementing CSC regulations as they pertain 

to the a r b i t r a t o r’s award of backpay in this case. The Civil Service 

Commission replied in pertinent part as follows:

The arbitrator granted the grievance and ordered the SBA to 

place the grievant, Leonard Rosen, in the position of Program 

Development Specialist, GS-301-14, as of December 10, 1972, 

and to pay h i m the salary he lost beginning on that date to 

the date of corrective action. The award was based on the 

finding that the SBA's merit promotion program, and the CSC 

rules and regulations were violated by the failure to promote 

the grievant to the GS-14 position.

Our examination and vie w of the file of the written opinion and 

findings of the arbitrator upon which his award was based disclose that the grievant was promoted, and, further, that the 

arbitrator found that the grievant was promoted and that the 

promotion was subsequently cancelled. He found that the grievant 

was selected for promotion and that the SF-52 prepared to effect 

the promotion had all necessary concurrences. He further found 

that CO F orm 164, the completion of which was a requirement 

beyond that necessary to complete promotion, was itself partially 

completed, but that both CO Form 164 and SF-52 were subsequently 

destroyed to "wipe out" the promotion and defeat the g r i evant’s 

right to the position. The arbitrator found:

"As I review SBA's action, it had already exercised 

its right to promote grievant and he was entitled to 

be put in that position. If having done that, management then wished to reduce jobs because of ceiling 

requirements, it would have had to do so with the 

grievant occupying the new GS-14 position, not with 

h i m occupying his old GS position."

It has been consistently deemed that after all discretionary acts that 

are required to effect a personnel action have been taken by an 

officer having the authority to take the action, and nothing remains 

to be done except ministerial acts, the personnel action is completed, 

regardless of the fact that ministerial and nondiscretionary acts 

remain to be done. Court decisions uniformly hold that the appointing action is completed when the last act in the exercise of the 

appointing power is performed. (Marbury v. Madison, (1803), 1 Cranch 

137; U.S. V. Le Baron, (1856), 19 How. 73; State ex rel Coogan v. 

Barbour (1885), 22 A. 6 8 6 ; Witherspoon v. State (1925), 103 So. 134; 

Board of Education v. McChesney (1930), 32 SW2d 26). The appointing 

power is exhausted when the last discretionary act is completed. The 

appointment is then irrevocable, and not subject to reconsideration. 

(U.S. V. Smith, (1932), 286 U.S. 6 ; State ex rel Calderwood v- Miller, 

(1900), 57 NE 227; State ex rel Jewett v. Satti (1947), 54 A . 2d 272).

269
It is also generally held that the completion of the acts requisite 

and necessary to complete an appointment includes some kind of 

written memorial of the fact emanating from the appointing power.

The personnel action, in this case promotion, cannot be defeated 

by the destruction of the memorial or other record of the action.

Form SF-50 is not a requisite to a personnel action, it is a report 

that a personnel action was taken. Mr. Leonard Rosen, the grievant 

in this case was promoted whe n the appointing power had expended 

itself by the completed exercise of all discretionary acts 

necessary to promote. The failure to perform ministerial acts, 

or the destruction of any memorial of the completed action, did 

not affect Mr. Rosen, whose right to the promotion had vested.

The arbitrator’s finding that the promotion should be given effect 

December 10, 1972, was a reasonable exercise of the arbitrator's 

authority and discretion. The acceptance by the agency of his 

finding is sufficient administrative determination that Mr. Rosen 

underwent an unjustified or unwarranted personnel action in the 

agency's failure to pay him the salary of the position to vrtiich it 

had promoted him.

In view of the foregoing, there does not appear to be a question of 

retroactive promotion. Rather, the arbitrator recognized the 

existence of a fact or event that occurred December 10, 1972.

Mr. Rosen is therefore entitled to the salary properly attendant to 

the higher grade, beginning December 10, 1972.

Based upon the foregoing interpretation by the Civil Service Commission, we 

must conclude that the arbitrator's award does not violate the Back Pay 

Act (5 U.S.C. § 5596) and the implementing regulations (5 CFR 550.803) 

prescribed by the CSC.

Conclusion

For the foregoing reasons, we find that the arbitrator did not exceed his 

authority and that his award does not violate the Back Pay Act (5 U.S.C.

§ 5596) and the implementing regulations (5 CFR 550.803) prescribed by the 

CSC. Accordingly, pursuant to section 2411.37(b) of the Council's rules of 

procedure, we sustain the arbitrator's award and vacate the stay.

By the Council.

Henry 

E x e c u t i W Director

Issued: November 6, 1974

270
Mid-America Program Center, Social Security Administration and Local 1 3 3 6 , 

American Federation of Government Employees (Yarowsky, Arbitrator). The 

union filed with the Council its petition for review of the arbitrator's 

award, which award was served on the union on July 31, 1974. Under the 

Council's rules the petition was due on or before August 23, 1974; however, the petition was not filed until August 27, 1974. While the 

Council subsequently granted the union an extension of time to file 

additional documents including copies of the award, no extension of time 

w ith respect to the initial filing of such petition was either requested 

by the union or granted by the Council.

Coimcil action (November 21, 1974). Because the union's petition was 

untimely filed, and apart from other considerations, the Council denied 

the petition for review.

FLRC NO. 74A-62

271
f ^ FEDERAL LABOR RELATIONS COUNCIL

% J 1900 E STREET, N.W. • WASHINGTON, D.C. 20415

UNITED STATES

November 21, 197A

Ms. Norma J. Dennis, Chief Steward 

American Federation of Government 

Employees, AFL-CIO, Local 1336 

P.O. Box 15281 - 601 E. 12th Street 

Elansas City, Missouri 64106

Re: Mid-America Program Center, Social Security 

Administration and Local 1336, American 

Federation of Government Employees (Yarowsky, 

Arbitrator), FLRC No. 74A-62

Dear Ms. Dennis:

The Council has carefully considered your petition, and the agency's 

opposition thereto, for review of the arb i t r a t o r’s award filed in the 

above-entitled case. For the reasons indicated below, the Council has 

determined, as contended in part by the agency, that your petition was 

untimely filed under the Cou n c i l’s rules of procedure and cannot be 

accepted for review.

Section 2411.33(b) of the C o u n c i l’s rules provides that a petition for 

review must be filed within 2 0 days from the date the a r b i t r a t o r’s 

award was served upon the party seeking review. Section 2411.46(c) 

provides that the date of service shall be the date the award was 

deposited in the mail or delivered in person, as the case may be. Where 

such service was made by mail, section 2411.45(c) provides that 3 days 

shall be added to the time period within which the petition must be 

filed. Additionally, under section 2411.45(a), any petition filed must 

be received in the C ouncil’s office before the close of business of the 

last day of the prescribed time period. In computing these time periods, 

section 2411.45(b) provides that if the last day for filing a petition 

falls on a Saturday, Sunday, or Federal legal holiday the period for 

filing shall run until the end of the next day wh i c h is not a Saturday, 

Sunday, or Federal legal holiday.

According to the record before the Council, your petition, which was 

incomplete in that it failed to include a copy of the a r b itrator’s 

award among other things, was received by the Council on August 27, 1974. 

On August 29, 1974, the Council, under section 2411.45(d), granted you 

an extension to September 10, 1974 to submit copies of the arbitrator’s 

award and other pertinent documents for the purpose of completing your 

petition. As the documents which you subsequently submitted to complete 

your petition make clear, the arbitrator’s award was served on you 

on July 31, 1974. Therefore, under the Council's rules, stated 

above, your petition for review was due in the C o u n c i l’s office on or

272
before the close of business on August 23, 1974. However, as previously 

indicated, your petition was not received by the Council until 

August 27, 1974, and no extension of time with respect to the filing of 

such petition was either requested by you or granted by the Council 

under section 2411.45(d) of the Council's rules.

Accordingly, as your petition was untimely filed, and apart from other 

considerations, your petition for review is denied.

By the Council.

S i n c e r e l y ,

Henry B f F razier III 

Executivte^Director

cc: R. S. Whiteman 

AFGE

1. L. Becker 

SSA

•:e

t-

■<iV

iple'

273

ot
Department of Health, Education^ and Welfare. Food and Drug Administration. 

Newark District, Newark, New Jersey, A/SLMR No. 361. The Assistant 

Secretary determined that employees in certain disputed job classifications were not management officials and should not be excluded from the 

districtwide unit on that basis. In reaching his determination, the 

Assistant Secretary relied upon principles enunciated in his decision 

in the Arnold Engineering case, A/SLMR No. 135, petition for review dis~ 

missed as moot, FLRC No. 72A-19, Report No. 36, as to the definition of 

"management official" and its application. The agency petitioned the 

Council for review, alleging that the Assistant Secretary's decision 

was arbitrary and capricious or presented major policy issues.

Council action (November 22, 1974). The Council held that the Assistant 

Secretary's decision did not appear arbitrary and capricious, noting that 

the Assistant Secretary did not appear to have acted without reasonable 

justification in that he based his determination upon established principles 

reflected in his previously published decisions. The Council also held 

that the Assistant Secretary's decision presented no major policy issues 

since the agency did not contend, nor did it offer evidence to suggest, 

that the Assistant Secretary's definition of "management official," 

promulgated in his decision in Arnold Engineering and upon which he 

relied in the subject case, was inconsistent either with the purposes 

of the Order or with other applicable authority. Accordingly, without 

adopting the precise language of the Assistant Secretary's definition of 

"management official," the Council denied review of the agency's petition 

under section 2411.12 of the Council's rules and regulations (5 CFR 2411.12)

FLRC NO. 74A-34

274
UNITED STATES

F E D E R A L LA B O R R E L A T IO N S C O U N C IL

1900 E STREET. N.W. • WASHINGTON, D.C. 20415

November 22, 1974

Mr. Will i a m M. Russell 

Deputy Assistant Secretary for 

Personnel and Training 

Office of the Secretary 

Department of Health, Education, 

and Welfare 

Washington, D.C. 20201

Re; Department of Health, Education, and 

Welfare, Food and Drug Administration, 

Newark District, Newark, New J e r s e y , 

A / SLMR No. 361, FLRC No. 74A-34

Dear Mr. Russell:

The Council has carefully considered your petition for review of the 

Assistant Secretary's decision in the above-entitled case.

The Assistant Secretary determined, in pertinent part, that employees in 

certain disputed job classifications are not management officials and 

should not be excluded from the districtwide unit on that basis. More 

particularly, the Assistant Secretary found that Consumer Safety Officers, 

GS-12 and GS-13, in the Compliance Branch, "are engaged essentially in 

enforcing established policy within controlled agency guidelines, rather 

than participating in the determination of what that policy, in fact, 

should be"; and that Consumer Affairs Officers, GS-11, "essentially apply, 

implement and make recommendations with respect to established policy, as 

distinguished from employees who actively participate in the ultimate 

determination as to what a policy would be." In reaching his determination, the Assistant Secretary relied on principles enunciated in his 

decision in Department of the Air Force, Arnold Engineering Development 

Cen t e r , A/SLMR No. 135 (February 28, 1972),^' as to the definition of 

"management official" and its application, as follows;

W hen used in connection with the Executive Order, the term 'management 

official' means an employee having authority to make, or to influence 

effectively the making of, policy necessary to the agency or activity 

with respect to personnel, procedures, or programs. In determining 

whether a given individual influences effectively policy decisions in 

this context, consideration should be concentrated on whether his role 

is that of an expert or professional rendering resource information or 

recommendations wit h respect to the policy in question, or whether his 

role extends beyond this to the point of active participation in the 

ultimate determination as to what the policy in fact will be. [Footnote 

o m i t t e d . ]

V Petition for review dismissed as moot, FLRC No. 72A-19 (April 18, 1973), 

Report No. 36. 2 7 5
In your petition for review you assert that the Assistant Secretary's 

decision is arbitrary and capricious or presents a major policy issue 

principally because the Assistant Secretary's findings are not supported 

by the weight of the evidence in the record and because he improperly 

applied or failed to adhere to applicable precedents in reaching his 

determination.

In the Council's opinion your petition does not meet the requirements for 

review as provided in section 2411.12 of the Council's rules of procedure. 

That is, in our view, the Assistant Secretary's decision does not appear 

arbitrary and capricious, nor does it present a major policy issue. As 

to your contentions that his decision is arbitrary and capricious, it 

does not appear that the Assistant Secretary acted without reasonable 

justification in reaching his decision in that the decision is based upon 

established principles reflected in previously published decisions of the 

Assistant Secretary. With respect to the alleged major policy issues in 

this case, your petition neither contends, nor does it offer evidence to 

suggest, that the Assistant Secretary's definition of "management official," 

which he enunciated in his decision in Arnold Eng i n e e r i n g , and upon which 

he relied in the instant case, is inconsistent either wit h the purposes of 

the Order or with other applicable authority. Thus, without adopting the 

precise language of the Assistant Secretary's definition of "management 

official", we conclude that his decision in this case raises no major 

policy issue with respect thereto.

Accordingly, since your petition fails to meet the requirements for review 

provided by section 2411.12 of the Council's rules of procedure, review of 

the petition is hereby denied.

By the Council.

Sincerely,

Henry B. ^ r i z i e r III 

Executive^'^rector

cc: A/SLMR

D e p t . of Labor

W. W. Treptow 

AFGE

276
Internal Revenue Service, Chamblee Service Center, Chamblee, Georgia, 

Assistant Secretary Case No. 40-5246 (CA). The Assistant Secretary 

sustained the Assistant Regional Director's dismissal of the complaint 

filed by National Treasury Employees Union, which alleged that a supervisor's profane statement at the time a union representative presented 

an employee's grievance violated sections 19(a)(1) and 19(a)(6) of the 

Order. The Assistant Secretary found that there was no evidence that 

the supervisor told the union representative that the agency would 

refuse to process the grievance; that the agency would initiate punitive 

action against the grievant or the representative; or that the grievant 

should bypass the union. The Assistant Secretary found rather that 

the supervisor's statement represented "At most . . . a blunt, albeit 

coarse and vulgar, expression" of the supervisor's opinion of the merits 

of the grievance. NTEU appealed to the Council contending that the 

Assistant Secretary's decision was arbitrary and capricious and that 

it raised major policy issues.

Council action (November 22, 1974). The Council concluded that the 

Assistant Secretary's decision did not appear arbitrary and capricious 

in that nothing in the union's appeal indicated that substantial factual 

issues existed which would require a hearing or that the findings and 

decision of the Assistant Secretary were otherwise without reasonable 

justification in the circumstances of the case. The Council found, 

additionally, that in the circumstances presented, particularly including the ambiguous nature and isolated character of the remark, the 

Assistant Secretary's decision did not raise major policy issues warranting review. Accordingly, without passing upon the question of whether 

later management action can expunge an agency unfair labor practice, 

the Council, pursuant to section 2411.12 of its rules of procedure, 

denied review of the appeal (5 CFR 2411.12).

FLRC n o . 74A-39

277
ijvt UNITED STATES

FEDERAL LABOR RELATIONS COUNCIL

1900 E STRECT. N.W. • WASHINGTON, D.C. 20415

November 22, 1974

Mr. Stephen D. Poor

National Field Representative

National Treasury Employees Union

Suite 1101

1730 K Street, NW.

Washington, D.C. 20006

Re: Internal Revenue Service, Chamblee 

Service Center, Chamblee, Geo r g i a , 

Assistant Secretary Case No. 40-5246 

(CA), FLRC No. 74A-39

Dear Mr. Poor:

The Council has carefully considered your request for review of the 

Assistant Secretary's decision in the above-entitled case.

In this case, in which the Assistant Secretary sustained the Assistant 

Regional Director’s dismissal of your unfair labor practice complaint, 

you alleged, in essence, that a supervisor's profane statement at the 

time a union representative presented an employee's grievance constituted a violation of sections 19(a)(1) and 19(a)(6) of the Order.

The Assistant Secretary found, that under all of the circumstances 

disclosed by the investigation in the case, that a reasonable basis 

for the complaint did not exist. The Assistant Secretary found, in 

pertinent part, that there was no evidence that the supervisor told 

the union representative that the respondent would refuse to process 

the grievance in contravention of the negotiated grievance procedure; 

that the agency would initiate punitive actions against the grievant 

or the representative; or that the grievant should bypass the union. 

The Assistant Secretary found that the supervisor's statement represented "At most . . . a blunt, albeit coarse and vulgar, expression

• • . of the supervisor's opinion of the merits of the grievance.

In your petition for review, you contend that the Assistant Secretary's 

decision is arbitrary and capricious and presents major policy issues.

278
In the Council's opinion, your petition for review does not meet the 

requirements of the Council's rules governing review. That is, based 

upon the contentions described above, the Assistant Secretary's decision does not appear arbitrary and capricious and does not present 

major policy issues. With regard to your contention that the decision 

of the Assistant Secretary appears arbitrary and capricious, the 

Council finds that nothing in your appeal indicates that substantial 

factual issues exist which would require a hearing. Moreover, it does 

not appear that the findings and decision of the Assistant Secretary 

were without reasonable justification in the circumstances of this case. 

With regard to the alleged major policy issues, the Council is of the 

opinion that in the circumstances presented, particularly including the 

ambiguous nature of the remark and its isolated character, the Assistant 

Secretary’s determination that a reasonable basis for the complaint 

does not exist does not raise major policy issues warranting review. In 

these circumstances, w e do not pass upon the question of whether later 

management action can expunge an agency unfair labor practice.

Since the Assistant Secretary's decision does not appear arbitrary or 

capricious and does not present a major policy issue, your appeal fails 

to meet the requirements for review as provided under sections 2411.12 

of the Council's rules of procedure. Accordingly, review of your appeal 

is hereby denied.

By the Council.

Sincerely,

Henry ^ g r a z i e r I H 

Execut^l4 Director

cc: A/SLMR

Dept, of Labor

G. J. Shaw 

IRS

279
FLRC NO. 74A-2

Local Lodge 2333, International Association of Machinists and Aerospace 

Workers, and Wright-Patterson Air Force Base. Ohio. The dispute concerned the negotiability under the Order of union proposals which would: 

(1) Define certain terms used in position descriptions; (2) condition 

the assignment of duties to employees on the "scope of the classification 

assigned" to such employees as defined in "appropriate classification 

standards;" and (3 ) provide the measurement for grading wage grade 

employees who perform mixed jobs.

Council action (December 5, 1974). As to (1), the Council, based on 

its decision in the Louisville Naval Ordnance case, FLRC No. 73A-21, 

Report No. 48, found that the provision is negotiable under section 11(a) 

of the Order. With respect to (2), the Council, relying mainly on the 

reasoning and analysis in its recent decision in the Immigration and 

Naturalization Service case, FLRC No. 73A-25, Report No. 57, held that 

the proposal was excepted from the agency's obligation to bargain under 

section 11(b) of the Order. Lastly, as to (3), the Council, based on 

Civil Service Commission advice as to the meaning of its own directives, 

rejected the agency's contention that the proposal would violate 

Commission requirements and found the proposal negotiable under section 

11(a) of the Order. However, to avoid any possible misunderstanding 

in the latter regard, the Council added that it was not here deciding that disputes over the interpretation or application of the proposal, 

if agreed upon by the parties, would be subject to the negotiated 

grievance procedure, since job-grading disputes are subject to a statutory 

appeals procedure and, under section 13(a) of the Order, a negotiated 

grievance procedure may not cover matters for which statutory appeals 

procedures exist. Accordingly, the agency head's determinations of nonnegotiability were set aside in part and sustained in part.

280
UNITED STATES 

FEDERAL LA B O R RELATIONS COUNCIL 

WASHINGTON, D.C. 20415

Local Lodge 2333, International Association 

of Machinists and Aerospace Workers

and FLRC No. 74A-2

Wright-Patterson Air Force Base, Ohio

D ECISION ON NEGOTIABILITY ISSUES

Background of Case

Local Lodge 2333, International Association of Machinists and Aerospace 

Workers (union) is the exclusive representative of a unit of wage-grade 

employees at the activity.— During negotiations, a dispute arose 

between the parties as to the negotiability of three proposals by the 

union (detailed hereinafter) concerning position descriptions (section 6 ); 

assignments of w o r k to unit employees (section 7 and first clause of 

section 1 0 ); and measurement of compensation of unit employees (second 

clause of section 1 0 ).

Upon referral, the Department of Defense determined that the proposals 

in dispute were nonnegotiable imder the Order. The union appealed to 

the Council, disagreeing wit h the agency determination; and the agency 

filed a statement of position in support of its determination.

Opinion

The negotiability questions relating to the respective union proposals 

will be considered separately below.

1. Position descriptions (section 6 ). This proposal by the union reads 

as follows:

Section 6 . When the term, such other duties as 

may be assigned" or its equivalent is used in a 

position description, the term is mutually understood to mean "tasks which are normally related 

to the position and are of an incidental nature."

l! The parties administratively advised the Council as to the wage-grade 

composition of the unit, after the union's appeal and the a g e n c y’s statement of position were filed in the instant case.

281
The agency determined principally that the proposal would limit m a n a g e m e n t , 

in the assignment of duties to employees and, based on the Griffiss case,— ' 

was thereby nonnegotiable under section 11(b) of the Order. W e cannot 

agree.

The Coxmcil considered the negotiability of a proposal similar to that 

here involved more recently in the Louisville Naval Ordnance case.— As 

we pointed out in the latter case, such a proposal, unlike that presented 

in the Griffiss case, is expressly directed at the meaning of language in 

position descriptions, which descriptions do not determine but reflect 

the assignment of duties. Additionally, the Council stated in the Louisville 

Naval Ordnance case (at pp. 4-5 of Council decision):

The union's proposal thus would not restrict the agency's 

right to prescribe specifically in the job description 

any duties which it wishes to assign to an employee or 

position and to change the job description without limitation to reflect such changes in assignments. Moreover, 

the agreement would of course be subject to section 1 2 (b) 

of the Order, the provisions of which must be included 

in every agreement. Under section 12(b), for example, 

the agency retains the complete right, in accordance with 

applicable laws and regulations, to assign duties to 

employees or positions in such manner as to maintain the 

efficiency of Government operations, and to carry out the 

mission of the agency in emergency situations.

In summary, nothing in the Order renders the mere definition and clarification of general terms in job descriptions, 

as proposed by the union, outside the agency's obligation 

to negotiate under section 11(b) of the Order ....

[Footnote omitted.]

Accordingly, for the reasons more fully set forth in the Louisville Naval 

Ordnance case, we find that section 6 as here proposed by the union is 

negotiable.— '

y International Association of Fire Fighters. Local F- 1 1 1 and Griffiss 

Air Force Base, Rome, N . Y . , FLRC No. 71A-30 (April 19, 1973), Report 

No. 36. In that case, the union's proposals would have prohibited the 

assignment of allegedly unrelated duties to positions in the unit. The 

Coxmcil sustained the agency's determination of nonnegotiability, because 

the specific duties assigned to particular jobs, including duties allegedly 

unrelated to the principal functions of the employees concerned, are 

excepted from the agency's obligation to bargain under section 1 1 (b)-

Local Lodge 830, International Association of Machinists and Aerospace 

Workers, and Louisville Naval Ordnance Station, Department of the Navy,

FLRC No. 73A-21 (January 31, 1974), Report No. 48.

hJ S®® also American Federation of Government Employees, Local 53, and 

Navy Regional Finance Center, Norfolk, Virginia, FLRC No. 73A-48 

(February 28, 1974), Report No. 49.

282
2 . Assignments of w o r k (section 7; first clause of section 10). The 

disputed sections concerning w ork assignments (referred to herein for 

convenience as a single union proposal) provide as follows:

Section 7. In the interests of maintaining morale 

in a good employer-employee relationship, the Employer 

agrees that, to the fullest extent possible in maintaining the efficiency of the Government operations, 

every effort will be made to assign w ork within the 

scope of the classification assigned as defined by 

appropriate classification standards.

Section 10. The Employer agrees that to the maximvmi 

extent possible, efforts will be made to assign work 

w ithin the scope of the classification assigned to 

bargaining unit employees, as defined in appropriate 

classification standards .... [Emphasis in body 

s u p p l i e d . ]

Again, the agency principally determined that the union proposal is nonnegotiable under section 11(b) of the Order, because it would limit 

management in the assignment of duties to unit employees. We fully agree 

with the agency determination as applied to the provisions in section 7 

and the first clause of section 1 0 of the proposed agreement.

It Is clear from the express language here involved, as distinguished from 

that in section 6 discussed immediately above, that the proposal would constrict the actual assignment of duties by the agency, namely, by conditioning 

such assignment on the "scope of the classification assigned" to the respective unit employees as defined in "appropriate classification standards."

The classification standards so referred to in the union's proposal, more 

properly identified as "job-grading standards" w hen concerning wage-grade 

employees as here involved, constitute groupings by the Civil Service 

Commission of duties, skills, knowledges and other aspects of jobs, for 

establishing the grade levels of particular jobs.— ' These standards are 

neither designed nor intended by the Commission to limit the agencies in 

any manner in the actual assignment of job duties.— ' Therefore, the use 

of these standards to effect such a limitation, as proposed by the union, 

would impose extraneous conditions on the a g e n c y’s authority to determine 

work assignments required only by the agreement itself.

V FPM Supplement 532-1, Subchapter S6-4.

See U.S. Civil Service Commission "Job Grading System for trades and^ 

labor occupations," section II.B.2. For a discussion of analogous "position 

classification standards" which apply to General Schedule employees, see, 

e.g.. Veterans Administration Hospital, Canandaigua, New York, and Local 

227, Service Employees International Union, Buffalo, New York, FLRC No. 

73A-42 (July 31, 1974), Report No. 55, and citations therein.

283
The Council, in the recent Immigration and Naturalization Service case, 

considered a similar proposal which would have prevented an agency from 

assigning duties to unit employees unless conditions prescribed in the 

agreement existed.— ' The proposal there conditioned the overtime assignment of alien bus duties to border patrol agents, on the unavailability 

of detention guards to perform such duties. In finding the proposal 

nonnegotiable under section 11(b) of the Order, the Cotmcil said:

As the Council held in the Griffiss case, the specific 

duties assigned to particular positions or employees,

i.e. the job content, are "excluded from the obligation to bargain under the words 'organization' and 

’numbers, types, and grades of positions or employees 

assigned to an organizational unit, w o r k project or 

tour of duty* in section 11(b) of the Order." Such 

exception from the obligation to bargain under 

section 1 1 (b) applies not only to a proposal which 

would totally proscribe the assignment of specific 

duties to particular types of employees, but also to 

a proposal which, as here, would prevent the agency 

from assigning such duties unless certain conditions 

exist.

While . . . the union claims that the condition attached 

to the assignment of alien bus duties to border patrol 

agents is merely a "procedure" which is negotiable, 

the subject condition (namely, when detention guards 

are unavailable) plainly imposes limitations on which 

types of positions or employees will actually perform 

the duties involved. Such a limitation on the agency's 

reserved authority to assign duties falls outside the 

agency's obligation to bargain under section 1 1 (b) .... 

[Footnotes omitted.]

In the present case, the union's proposal would likewise limit the agency 

in the assignment of duties to unit employees unless conditions prescribed 

in the agreement exist — here, the conformity of the duties with the 

scope of job-grading standards. Accordingly, we find that the union's 

proposal is excepted from the agency's obligation to bargain under 

section 11(b) of the Order.

We therefore sustain the agency's determination as to the nonnegotiability 

of the union's proposed section 7 and the first clause of section 10.

Tj AFGE (National Border Patrol Council and National Council of Immigration 

and Naturalization Service Locals) and Immigration and Naturalization 

Service, FLRC No. 73A-25 (September 30, 1974), Report No. 57, at pp. 5-7 

of decision.

284
3. Measurement of compensation of unit employees (second clause of 

section 10)♦ The final disputed proposal reads as follows:

Section 10. The Employer agrees that . . . [It] will 

compensate employees on the basis of the highest level 

of duties assigned as a substantial portion of the continuous w o r k assignment for a representative period of 

time.

The agency determined that the proposal violates Civil Service Commission 

directives and Is therefore not negotiable.—

Since the Civil Service Commission has primary responsibility for the 

issuance and interpretation of its own directives, that agency was 

requested, in accordance wit h Council practice, for an interpretation 

of Commission directives as they pertain to the question raised in the 

present case. The Commission replied in relevant part as follows:

Whether or not the proposal conflicts with Civil 

Service Commission directives depends upon whether 

it is for application to General Schedule (GS) or 

W age Grade (WG) e m p l o y e e s{2J]

Wage Grade Application;

If the problem is concerned with grading mixed jobs 

for Wage Grade (blue collar) employees, the proposal 

is not in conflict with Civil Service Commission 

directives. Subchapter S6 from the Federal Personnel 

Manual 532-1, dated January 1973, clearly regulates the 

, appropriate pay practices.

l£

The mixed job policy in the FPM states:

"In grading a job requiring the performance 

of w o r k in two or more occupations on a 

regular and recurring basis, the whole job

t!

^ The agency also asserted that the proposal violates agency regulations 

(paragraph 3-5e, Air Force Supplement to paragraph 3-5, Subchapter 3,

V Position Classification Standards). However, this regulation concerns 

^ the classification of General Schedule positions and is manifestly inapplicable to the wage— grade employees involved in the instant case.

9/ The administrative advice by the parties as to the wage-grade composition of the unit, referred to in footnote 1 , supra, was received by the 

Coimcil after the response from the Commission.

285
is considered including the full range and 

level of skills, knowledges, and qualifications required, as well as all other relevant 

job facts. Such a mixed job is graded in 

keeping w ith the highest skill and qualification requirements of the job, even if the 

duties involved are not performed for majority 

of the time but are regular and recurring."

Thus» the proposal is not in conflict with Commission 

directives with respect to Wage Grade jobs.

Based on the foregoing interpretation by the Civil Service Commission of 

its own isstiances, and in view of the wage-grade composition of the unit 

here involved, we find that the union's proposal is not in conflict with 

Civil Service Commission requirements. Accordingly, we overrule the 

agency's determination as to the nonnegotiability of the second clause 

of the union's proposed section 1 0 .

Miile we have found that the union's proposal concerning the grading of 

mixed jobs is negotiable, we must add, in order to avoid any possible 

misunderstanding, that we do not here decide that disputes over the interpretation or application of this proposal (if agreed upon by the parties) 

would thereby be subject to the negotiated grievance procedure. Jobgrading disputes are subject to a statutory appeals procedureand, 

as provided in section 13(a) of the Order, a "negotiated grievance procedure may not cover . . . matters for which statutory appeals procedures 

exist."

Conclusions

For the reasons discussed above and pursuant to section 2411.27 of the 

Council's Rules and Regulations, we find that:

1. The agency head's determination as to the nonnegotiability of section 7 

and the first clause of section 1 0 was valid and must b e sustained; and

2. The agency head's determination as to the nonnegotiability of section 6

and the second clause of section 1 0 was improper and must be set aside.

This decision should not be construed as expressing or implying any opinion 

of the Council as to the merits of the union's proposals. We decide only

10/ See, 5 U.S.C. 5346(c); FPM Supplement 532-1, Subchapter S7.

286
that, as submitted by the union and based on the record before the 

Council, the proposals are properly subject to negotiation by the 

parties concerned under section 11(a) of the Order.

By the Council.

Issued: December 5, 1974

287
American Federation of Government Employees, AFL-CIO, Local 2649 and 

Office of Economic Opportunity (Sisk, Arbitrator). The parties 

submitted to arbitration a grievance requesting backpay for the 

grlevant whose promotion was delayed 4 months for various reasons 

including the completion of a current position description for the 

position involved. The union alleged that the agency violated 

a provision in the negotiated grievance which required that the 

parties "proceed in accordance with and abide by all . . . regulations 

of the Employer . . . in matters relating to the employment of 

employees covered by this Agreement." The arbitrator determined 

that, because an agency regulation required completion of a current 

position description before a promotion could be processed and 

because the collective bargaining agreement required the parties to 

proceed in accordance with all agency regulations, the agency's 

action was in compliance with the agreement. Further, he determined 

that the delay was not, under the circumstances, undue or unreasonable. 

The union filed an exception with the Council, alleging in substance 

(as it had before the arbitrator) that an agency staff manual required 

the promotion to be processed in 8 working days and that the agency 

violated the staff manual which assertedly is an agency regulation 

and therefore violated the agreement; and arguing that the award 

thereby violates an "appropriate regulation" under the Council's rules.

Council action (December 5, 1974). The Council determined, without 

passing on whether the agency staff manual is an "appropriate regulation" as that term is used in section 2411.32 of the Council's rules 

of procedure (5 CFR 2411.32), that the union's exception does not 

appear to be supported by facts and circumstances described in the 

union's petition, as required by section 2411.32. Moreover, the 

Council was of the opinion that the union in substance was simply 

contending that the arbitrator reached an incorrect result in his 

interpretation of the agreement— a matter the Council, like the courts, 

has held to be left to the arbitrator's judgment. Further, the Council 

held, contrary to the union's contention, that an award Issued by 

another arbitrator involving a different grievance is without controlling significance. The Council therefore denied review of the union's 

petition because it failed to meet the standards set forth in 

section 2411.32 of the Council's rules (5 CFR 2411.32).

FLRC NO. 74A-17

288
UNITED STATES

F E D E R A L LA B O R R E L A T IO N S C O U N C IL

1900 E STREET, N.W. • WASHiNOTON, O.C. 20418

December 5, 1974

Mr. Rex L. Carey, President 

Local 2649» American Federation of 

Government Employees, AFL-CIO 

1100 Commerce Street 

Dallas, Texas 75202

Re: American Federation of Govemnent 

Employees. AFL-CIO. Local 2649 

and Office of Economic Opportunity 

(Sisk, Arbitrator), FLRC No. 74A-17

Dear Mr. Carey:

The Council has carefully considered your petition for review of the 

arbitrator's award, which denied a grievance requesting retroactive pay 

for a period prior to the grievant's promotion, filed in the aboveentitled case, and the agency's opposition thereto.

Based on the facts described in the award, it appears that the grievance 

had its genesis in the agency's announcement of a vacancy in the position of Public Information Specialist, GS-5/7, which set forth the 

differentiation in the qualifications for the GS-5 and GS-7 levels of 

the position. Mrs. Frances D. Coppedge was selected. She was reassigned 

from the position of Clerk Stenographer, GS-5, to Public Information 

Specialist* GS-5, effective December 15, 1972. On September 27, 1973,

Mrs. Coppedge filed the Instant written grievance requesting a promotion 

to Public Information Specialist, GS-7. Early in September 1973, a Form 

SF-52 requesting her promotion to the GS-7 level was forwarded to the 

regional personnel office where, according to the arbitrator, such 

requests "normally . . . are processed within a period of thirty days." 

However, the Form SF-52 for the grlevant was not processed within that 

period because there was no current position description for Public 

Information Specialists at the GS-7 level. On January 3, 1974, a current 

position description for a Public Information Specialist, GS-7, was 

prepared, and the grlevant was promoted to the GS-7 position, effective 

January 20, 1974. The arbitrator concluded that the delay of, approximately 4 months In the processing of her promotion occurred, in part, 

for the following reasons: (1) no current position description existed 

when the Form SF-52 was submitted on September 17, 1973; (2) while a 

freeze on promotions was lifted on August 27, 1973, the instructions 

necessary to Implement recommended promotions were not received in the 

field until September 28, 1973, at which time the headquarters of this 

region was preparing plans for reorganization; (3) the reorganization

289
plans vere approved on October 28, 1973; it was not known until then that 

the Public Information Specialist position held by the grievant would 

continue; (4) the information from the grievant required for preparation 

of a current position description was not received until December 19, 1973; 

and (5) a current position description for a Public Information Specialist 

was prepared on January 3, 1974.

At the arbitration hearing, the union contested only the timeliness of 

the grievant*8 promotiouc The parties stipulated that the arbitrator was 

to decide the following issue:

Was the delay in the promotion of the grievant from Public 

Information Specialist GS-5 to Public Information Specialist 

6S-7 the result of arbitrary, jcapricious, discriminatory, or 

malicious actions on the part of the Employer?

The union, according to its petition, contended before the arbitrator 

that an agency staff manual (OEO Staff Manual 250-2)A/provided for a total 

of 8 working days for the personnel division to process promotions of the 

career ladder type; that the staff manual was a regulation of the agency; 

and that, therefore, the delay of 4 months in processing the grievant*s 

promotion violated Article 2, Section 2,1,/of the collective bargaining 

agreement, and constituted an undue and arbitrary action. As a remedy, 

the union sought backpay for the grievant prior to her promotion on 

January 20, 1974, at the GS-7 level for some period beginning on various 

dates between January 31 and September 27, 1973.

The preface of the agency staff manual states:

This publication was prepared as a Guide for Administrative 

Officers and other OEO employees who have the responsibility 

for initiating requests for personnel actions. It is 

designed to standardize the preparation and processing of 

personnel documents.

The agency staff manual in relevant part provides:

TIME FRAMES

To expedite the processing of Standard Form 52 through the 

various steps, the following time frames have been established. 

They are applicable only if the request follows a routine 

schedule. This means that all necessary forms, documents and 

additional memoranda are properly signed and received in Person-* 

nel with the request and that no changes be made by the 

requesting office.

%! Section 2 of Article 2 (Enq>loyee Rights) provides:

The parties agree that they will proceed in accordance with and 

abide by all Federal laws, applicable state laws, regulations 

of the Employer, and this Agreement, in matters relating to 

the eaployment of employees covered by this Agreement.

2^0
In his award, the arbitrator determined in essence that the agency’s

requirement for a current position description was an agency regulation

within the meaning of Article 2, Section 2, of the agreement and, therefore, the agency’s delay in processing the grievant’s promotion until

obtaining the required description was in compliance with Article 2,

Section 2. Tiie arbitrator determined that the agency's delay for

approximately 4 months, for the reasons previously described, was not an

undue or unreasonable delay. Moreover, he determined that the period of

one year in grade as a GS-5 served by the grievant was not unreasonable.

Accordingly, the arbitrator denied the remaining portion of the grievance

requesting backpay for the grievant.

The tinion requests that the Council accept its petition for review of the

arbitrator’s award on the basis of the exception discussed below.

Under section 2411.32 of the Council’s rules of procedure, review of an

arbitration award will be granted "only where it appears, based upon the

facts and circumstances described in the petition, that the exceptions

to the award present grounds that the award violates . . . appropriate

regulation . . . or other grounds similar to those upon which challenges

to arbitration awards are sustained by courts in private sector labormanagement relations."

The vinion’s exception contends that the award violates OEO Staff M^ual

250-2 and, therefore, violates an "appropriate regulation." In support

of this contention, the union's petition presents a "sunmary of evidence

and arguments" submitted by the union to the arbitrator. The sole

argument in this summary is the same contention which, as previously

stated, the union made before the arbitrator, i.e., that the agency, by

delaying the processing of the grievant*s promotion for 4 months, violated

OEO Staff Mratial 250-2, which assertedly is an agency regulation, and,

therefore, violated Article 2, Section 2, of the agreement, and engaged in

an undue and arbitrary act— a contention rejected by the arbitrator.

Without passing upon whether the agency staff manual is an "appropriate

regulation" as that term is used in section 2411.32 of the Council's rules,

we conclude that the union's exception does not appear to be supported by

facts and circumstances described in the union’s petition, as required by

section 2411.32. The union has not shown that OEO Staff Manual 250-2 is

an agency regulation within the meaning of Article 2, Section 2, of the

agreement. As previously stated, the manual is described in its preface

as a "guide," and the time frames established therein are applicable

"only if the request [in a Form SF-52] follows a routine schedule," which

is defined as meaning that "all necessary forms, documents . . . are

properly signed and received in Personnel with the request . . . ."

(Emphasis supplied.) Moreover, even if the union had established that OEO

Staff Manxial 250-2 is an agency regulation within the meaning of Article 2,

Section 2, of the agreement, the union's contention appears to be no more

than a request that the Council review the merits of the arbitrator's award.

291
As previously stated, the imion relies on a svomnary of the same evidence

and arguments which the union presented to the arbitrator In asking him to

sustain.Its grievance, specifically the argument that the agency’s action

in processing the grlevant's promotion allegedly violated OEO Staff

Manual 250-2, and thereby violated Article 2, Section 2, of the agreement.

But the arbitrator determined in essence that the agency's action in

processing the grlevant's promotion was in compliance with, not in violation of. Article 2, Section 2, of the agreement. Therefore, when the

substance of the union's petition is considered, we are of the opinion

that the union is simply contending that the arbitrator reached an incorrect

result in his interpretation of Article 2, Section 2, of the agreement.

However, the Council has held, as courts consistently have with respect to

arbitration in the private sector, that the interpretation of contract

provisions is a matter to be left to the arbitrator's judgment. See, e.g.,

American Federation of Government Employees, Local 12 and U.S. Department

of Labor (Daly, Arbitrator), FLRC No. 72A-55 (September 17, 1973), Report

No. 44. While the union adverts to an award issued in a different grievance by another arbitrator as ’’controlling precedent,” that award is not

controlling on the Council in deciding whether the arbitrator’s award

violates an appropriate regulation.

Accordingly, the union's petition for review is denied because it fails to

meet the standards for review set forth in section 2411.32 of the Council's

rules.

By the Council.

Sincerely,

HenryFrazier

Executive Director

cc: A. A m ett

OEO

292
National Council of OEO Locals, AFGE, AFL~CIO> and Office of Economic

Opportunity (Harkless, Arbitrator). The union filed a grievance

alleging that a position had been filled in a manner violative of

contractual merit promotion procedures, and requested removal of the

incumbent and refilling of the position in a manner consistent with

the agreement. The agency vacated the contested position, but refused

to accede to the union's demand that the agency refill the position.

Following submission of the dispute to arbitration, the arbitrator

issued an award, finding that management once having decided to fill

the position could not change its decision absent a showing of new

conditions sufficient to convince the arbitrator that a change was

warranted. He further fotmd that such showing was not made in this

case and (1) directed the agency to fill the position in question;

and (2) under provision of the parties' agreement, assessed the costs

of the arbitration to the agency. The Council accepted the agency's

petition for review of the award (Report No. 51).

Council action (December 6, 1974). The Council held as to (1) that

in the circumstances of the case the arbitrator's award improperly

limited management's authority to decide and act under section 12(b)(2)

of the Order and therefore set aside the arbitrator's direction

that the position be filled. However, as to (2), the Council found

no grounds were adduced to support disturbing the arbitrator's award

assessing costs against the agency. Therefore, pursuant to section

2411.37(b) of the Council's rules of procedure (5 CFR 2411.37(b)),

the Council modified the award consistent with its decision.

FLRC NO. 73A-67

293
UNITED STATES

FEDERAL LABOR RELATIONS COUNCIL

WASHINGTON, D .C . 20415

National Council of OEO

Locals, AFGE, AFL-CIO

and FLRC No. 73A-67

Office of Economic Opportunity

DECISION ON APPEAL FROM ARBITRATION AWARD

Background of Case

This appeal arose primarily from the remedy awarded by the arbitrator

for the agency's failure, as he found, to comply with provisions of

the parties' collective bargaining agreement which set forth merit

promotion procedures to be followed in filling various positions

within the agency.

The National Council of OEO Locals, AFGE, AFL-CIO (the union) filed a

grievance alleging that the Office of Economic Opportunity (OEO) had

filled two GS-15 positions in the agency in a manner which violated

merit promotion procedures under the parties' agreement. As a

remedy the union requested removal of the incumbents from the two

positions; and the refilling of the positions in a manner consistent

with the procedures contained in the parties' agreement.

Before the grievance went to arbitration, the agency vacated the t%ro

contested positions, refilling one of them and refusing at that tiae

to take any action to fill the other. Thus, at the time of the

arbitration hearing, the one unfilled position (Chief, Evaluation

Division, Office of Legal Services) remained in dispute and was the

principal subject of the arbitrator's award.

The Arbitrator's Award

The arbitrator upheld the union's grievance^^ and, granting the remedy

requested by the union, directed management to "forthwith take proper

action to fill the position ....'* Also, under provisions of the

}J The matter grieved by the union as stated by the arbitrator was,

"that Management had improperly filled two GS-15 positions without

utilizing required merit promotion procedures."

294
parties' agreement, the arbitrator assessed the costs of the arbitration

to OEO.

Agency's Appeal to the Council

The agency filed a petition for review of the arbitrator's award with

the Council alleging principally that (1) Insofar as the award directs

■anagement to fill the position In question It conflicts with rights

reserved to management under section 12(b) of the Order and should be

set aside; and (2) In conjunction therewith, the costs of the arbitration should be assessed to the union as the losing party. The

Council accepted the agency's petition for review.— Neither party

filed a brief.

Opinion

Section 2411.37(a) of the Council's rules of procedure provides that:

(a) An award of an arbitrator shall be modified, set aside In

whole or In part, or remanded only on grounds that the award

violates applicable law, appropriate regulation, or the order,

or other grounds similar to those applied by the courts In

private sector labor-management relations.

The two questions before the Council are: (1) whether the portion of

the arbitrator's award directing management to fill the position In

question conflicts with rights reserved to management under section 12(b)

of the Order and, therefore, must be set aside; and, (2) If so,

whether the portion of the award assessing costs of the arbitration

to the agency should be set aside. These questions are discussed,

separately, below.

1. Does the award conflict with section 12(b) of the Order?

Section 12(b)(2) of the Order^^ provides as follows:

Sec. 12. Basic provisions of agreements. Each agreement between

an agency and a labor organization Is subject to the following

requirements—

OEO requested and the Council granted, pursuant to section 2411.47(d)

of the Council's rules of procedure, a stay pending the determination

of the appeal.

Although the agency alleged. In particular, violations of

sections 12(b)(4) and (5) of the Order, the Council finds It unnecessary

to pass on these allegations In view of Its decision herein under

section 12(b)(2).

295
(b) management officials of the agency retain the right, in

accordance with applicable laws and regulations—

(2) to hire, promote, transfer, assign, and retain employees in

positions within the agency ....

As to the meaning of section 12(b)(2), the Council, in its decisions,

consistently has emphasized that the rights reserved to management

officials under that section of the Order are mandatory and cannot be

bargained away. Thus, in its VA Research Hospital decision, the

Council stated as follows

Section 12(b)(2) dictates that in every labor agreement management

officials retain their existing authority to take certain personnel

actions, i.e., to hire, promote, etc. The emphasis Is on the

reservation of management authority to decide and act on these

matters, and the clear import is that no right accorded to unions

under the Order may be permitted to interfere with that authority .

[Emphasis added.]

In the present case, as already indicated, the agency caused the

position in question to be vacated when faced with a union grievance

alleging that the position had been filled in a manner violative of

contractual merit promotion procedures;.^' but refused to accede to the

V Vieterans Administration Independent Service Employees Union and

Veterans Administration Research Hospital, Chicago, Illinois, FLRC

No. 71A-31 (November 22, 1972), Report No. 31, at p. 3; accord. Veterans

Administration Hospital, Canandaigua, New York and Local 227. Service

Employees International Union, Buffalo, New York (Miller, Arbitrator),

FLRC No. 73A-42 (July 31, 1974), Report No. 55, at pp. 8-9; American

Federation of Government Employees Local 1966 and Veterans Administration

Hospital, Lebanon, Pennsylvania, FLRC No. 72A-A1 (December 12, 1973),

Report No. 46, at pp. 5-7; Tidewater Virginia Federal Employees Metal

Trades Council and Naval Public Works Center, Norfolk, Virginia, FLRC

No. 71A-56 (June 29, 1973), Report No. 41, at pp. 4-7.

OEO in effect admits that it violated the parties' agreement as

alleged in the grievance. In this regard, OEO*s petition for Council

review in this case states, for example:

Throughout the arbitration proceeding, OEO maintained the

position that the violation of the contract had been corrected

and the grievance, therefore, mooted when the two Improperly

appointed Individuals were removed from the contested positions.

[Emphasis added.]

296
union's demand that the agency take action to refill the position.

The arbitrator, in reaching his award sustaining the grievance and

directing the agency to fill the position in question, stated that:

[T]here is nothing in Article 4 of the ligreement^^ or in Executive

Order 11^91 which prevents a ruling on the Union’s request that

Management must fill the disputed position either by merit promotion or reassignment using merit factors. To be sure Management

retains the right under the Executive Order and in Article 4 of

the Agreement 'to direct employees of the agency . . . promote,

transfer, assign and retain employees in positions within the

agency* .... This is not a situation, however, where the

Union is asking the Arbitrator to require Management to determine

to fill the supervisory position in question here. Rather,

Management made this decision prior to the filing of the grievance.

[Footnote and additional emphasis supplied.]

The arbitrator further found contrairy to the agency's assertions that,

in his opinion, the current situation, in regard to the need for the

position in question, was not so different from the situation existing

when the agency had improperly filled the position that management

would be warranted in "making a new determination that the position

is no longer needed." Thus, he concluded in effect, that management,

once having exercised its right to decide to fill the position, could

not change its decision absent a showing of "new conditions" of

sufficient magnitude to convince the arbitrator that a change was

warranted.

In our view, the arbitrator's interpretation and application of

Article 4 of the agreement (incorporating, as already indicated, the

language of section 12(b) of the Order) is inconsistent with the

meaning of the Order in that it fails to recognize that, implicit and

coextensive with management's conceded authority to decide to take an

action under section 12(b)(2), is the authority to decide not to take

such action, or to change its decision, once made, whether or not to

take such action. It is clear from the language and history of the

Order, as well as from previous Council decisions as already noted,

that no interference with management's authority to decide and act

with respect to the matters enumerated in section 12(b)(2) may be

permitted under the Order.

The arbitrator's award, in the circumstances presented by this case,

would .limit management's authority to decide and act under

section 12(b)(2) with regard to filling a position by conditioning

management's authority to determine not to fill the position in

Article 4 of the Agreement, entitled "Employer Rights," repeats

in substance the wording of section 12 of the Order, among other

things.

297
question upon loanagement's ability to justify its decision to the

arbitrator's satisfaction. Thus» the portion of the arbitrator's

award directing management to fill the position in question interferes

with management's reserved authority to decide whether or not to hire,

promote, transfer or assign employees under section 12(b)(2) of the

Order. However, management's reserved rights under section 12(b) may

not be Infringed by an arbitrator's award under a negotiated grievance

procedure.!./ Therefore, the portion of the award directing maj^genent

to fill the position in question cannot be permitted to stand.— '

2. Costs of the arbitration. In his award, the arbitrator stated,

"Under Article 17, Section 4 [of the agreement] the costs of the

Arbitration are assessed to OEO." The cited provision of the agreement provides in relevant part that certain fees, expenses and costs

incident to an arbitration shall be borne by the losing party.

In the circumstances of the present case, where the arbitrator sustained

the union's grievance and the agency has successfully excepted to part

of the remedy granted by the arbitrator, we find that no grounds have

been adduced (under section 2411.37(a) of the Council's rules of procedure as previously set forth herein) to support our disturbing the

arbitrator's award which assesses costs against the agency. Merely

because one part of the remedy awarded by the arbitrator is set aside

does not necessarily affect the other parts of the award. That is, our

decision herein, setting aside in part the remedy awarded by the arbitrator, does not alter his having sustained the union's grievance; and

no independent grounds are established by the agency or otherwise

apparent which would warrant the Council's disturbing in any way the

arbitrator's assessment of costs of the arbitration to OEO. Therefore,

this portion of the arbitrator's award is sustained.

TJ Professional Air Traffic Controllers Organization and Federal

Aviation Administration, Department of Transportation (Britton, Arbitrator) FLRC No. 74A-1 (June 24„ 1974), Report No. 53 at p. 4 of the

Council's decision letter.

The circumstances in the Instant case are distinguished from those

present in International Association of Machinists and Aerospace

Workers, Arsenal Lodge No. 81, AFL-CIO and Rock Island Arsenal, Rock

Island, Illinois (Sembower, Arbitrator), FLRC No. 73A-29 (December 12,

1973), Report No. 46, where the Council denied review of the arbitrator's award which directed, in part, that management fill a

vacancy "in accordance with regulations and the Negotiated Agreement."

That is, in Rock Island, the agency's continuing Intention to fill

the position there involved was clear and unquestioned.

298
For the foregoing reasons, we find that (1) the arblrrator's award,

insofar as It directs the agency to "forthwith take proper action to

fill the position of Chief, Evaluation Division, Office of Legal

Services," violates the Order by interfering with rights reserved to

management officials under section 12(b)(2); and (2) no grounds were

adduced by the agency to support the Council's setting aside the

arbitrator's assessment to the agency of the costs of the arbitration

tmder provisions of the parties' agreement. Accordingly, pursuant to

section 2411.37(b) of the Coimcll's rules of procedure, we modify the

arbitrator's award by striking the penultimate sentence thereof which

reads:

Managonent shall forthwith take proper action to fill the position

of Chief, Evaluation Division, Office of Legal Services.

As so modified, the award is sustained and the stay is vacated.

By the Council.

Conclusion

Executiv^ Director

Issued: December 6, 1974

299
Local 1164, American Federation of Government Employees« AFL-CIO

and Bureau of District Office Operations, Boston Region, Social

Security Administration (Santer, Arbitrator). The parties submitted

to arbitration the union's grievance which alleged in substance that

the agency, by detailing an employee to a different office, changed

a personnel policy without consulting the union, in violation of the

collective bargaining agreement. The union subsequently requested

the agency to agree to join for hearing by the same arbitrator a

separate grievance filed by the detailed employee, but the agency

refused on the ground that the two grievances raised separate Issues;

there is no specific indication that the union renewed its request

before the arbitrator. The arbitrator formulated the issue to be

decided as whether the agency changed existing personnel policy in

handling the detailed employee's case, in his award the arbitrator

determined that the agency did not. The union filed exceptions

alleging (1) that his award contains erroneous findings of fact, and

(2) that, the arbitrator made an arbitrary and capricious award by

tending to restrict the scope of the hearing to the alleged agreement

violation and refusing to consider an issue in the employee's separate

grievance.

Council action (December 20, 1974). The Council determined that

neither of the union's exceptions asserted a ground similar to those

upon which challenges to arbitration awards are sustained by courts

in private sector labor-management relations, as required by section

2411.32 of the Council's rules (5 CFR 2411.32). Regarding the union's

first exception, the Council held, based on private sector law as

likewise applicable to the Federal sector, that an arbitrator's

findings of fact are not to be questioned. As to the union's second

exception, the Council found that the union's petition furnished no

facts or circumstances to show that the parties had submitted the

employee's separate grievance to the arbitrator; that the question

of whether a single arbitrator may consider more than one grievance

is a procedural question left by courts in private sector cases to

final disposition by the arbitrator; and that no precedent was

established in which a court set aside an award in the private

sector on the ground here advanced by the union. Accordingly, the

Council denied the union's petition for review.

FLRC NO. 74A-49

300
UNITED STATES

FEDERAL LABOR RELATIONS COUNCIL

1900 E STREET, N.W. • WASHINOTON, O.C 2041S

December 20, 197A

Mr. Percy 0. Daley, Jr.

President, Local 1164

American Federation of Government

Employees, AFL-CIO

53 Hildreth Street

Westford, Massachusetts 01886

Re: Local 1164, American Federation

of Government Employees. AFL-CIO

and Bureau of District Office

Operations, Boston Region, Social

Security Administration (Santer,

Arbitrator), FLRC No. 74A-49

Dear Mr. Daley:

The Council has carefiiLly considered your petition for review of the

arbitrator's award filed in the above-entitled case.

The award shows that the agency's Boston Regional Office detailed

Mrs. Judith C. Brogioli to a different branch office within the

Boston Region to assist in the increased workload. The union filed

a grievance which in substance alleged that the Region, by its action,

had changed a personnel policy and procedure without consulting the

union as required in Article 6, Section 6, of the collective bargaining

agreement.A' In its answer, the agency stated that its (unnnritten)

policy on details was, as shown through past practices, "to seek volunteers for details when feasible and practicable; otherwise to make

specific details when required." When the parties submitted the

union's grievance to arbitration, it appears that they did not enter

into a submission agreement formulating the question or questions to

be posed to the arbitrator,^/ and they could not agree upon the issue

1/ Section 6 of Article 6 (Union-Management Relations at the BDOO

Regional Level) provides;

The Region agrees to consult the Union on the formulation

of new or revised personnel policies and procedures or of

plans for changes in working conditions.

2j The union's petition shows that, in a joint letter to the Federal

Mediation and Conciliation Service, the parties stated that they had

"failed to arrive at a mutually acceptable application of Article 6,

Section 6," of the agreement, and, therefore, requested a list of

arbitrators.

301
vfaen the hearing opened. As a consequence» the arbitrator, ruling

that the issue should be based upon the union's grievance and the

agency's answer, formulated the issue to be: "In handling

Mrs. Brogloli's case did the Region change existing personnel

policy?”

The arbitrator determined that the union did not furnish the proof

required to establish that the xiniversal and unvarying practice of

the Boston Region, when detailing employees, was to seek volunteers

in general or a particular volunteer, or both, and that employees

were never ordered to be detailed without a prior request. Therefore, in his award, the arbitrator concluded that the Region did not

change existing personnel policy in handling Mrs. Brogloli's detail.

The union requests that the Council accept its petition for review

of the arbitrator's award on the basis of its two exceptions discussed below.

Under section 2411.32 of the Council's rules of procedure, review of

an arbitration award will be granted "only where it appears, based

upon the facts and circumstances described in the petition, that the

exceptions to the award present groimds that the award violates applicable law, appropriate regulation, or the order, or other grounds

similar to those upon which challenges to arbitration awards are

sustained by courts in private sector labor-management relations."

The union's first exception contends that the arbitrator's award

contains a number of erroneous findings of fact. However, the law

is well settled in the private sector that an arbitrator's findings

as to the facts are not to be questioned by the courts. See, e.g..

Meat Cutters & Butcher Workmen, Local 540 v. Neuhoff Bros. Packers,

481 F.2d 817, 819, 83 LRBM 2652, 2653 (5th Cir. 1973). This principle

is likewise applicable in the Federal sector under section 2411.32 of

the Council's rules of procedure. Federal Employees Metal Trades

Council, Vallejo« California and Mare Island Naval Shipyard, Va.Ile.jo,

California (Hughes, Arbitrator), FLRC No. 73A-20 (September 17, 1> .

Report No. 44. Therefore, the union's first exception does not asst: ,

a ground similar to those upon which challenges to labor arbitration

awards are sustained by courts in private sector cases.

The union's second exception contends that, because of the arbitrator's

manner in tending to restrict.the scope of the hearing to Article 6,

Section 6, of the agreement and his refusal to consider an issue in

the separate grievance filed by Mrs. Brogloll,^' the award is arbitrary

S

Mrs. Brogioll had filed a grievance which, according to the arbitrator, overlapped the union's grievance in some respects but was

separate in others. The arbitrator noted that the agreement provided

for different processing of the two grievances: while the union's

grievance had been processed through a quicker procedure established

by the agreement for "unlon-management" disputes, Mrs. Brogloli's

grievance was processed through the procedure for "employee initiated'*

grievances and had not been submitted to arbitration.

302
and capricious. However, the union's petition furnishes no facts or

circumstances to show that the parties had submitted Mrs. Brogioli*s

grievance to the arbitrator. On the contrary, the award shows that

after the arbitrator was selected to decide the union's grievance,

the union requested the agency to agree to join Mrs. Brogioli's grievance with the union's grievance so it could be heard by the arbitrator

at the same hearing. The Region refused on the ground that the two

grievances raised separate issues and, therefore, should be resolved

at separate arbitration hearings, and there is no specific indication

that the union renewed before the arbitrator the request to join the

two grievances. Courts in private sector cases hold that the question

of whether a single arbitrator may consider more than one grievance

is a procedural question to be left to final disposition by the arbitrator. See, e.g., American Can Co. v. Papermakers and Paperworkers,

Local 412, 356 F. Supp. 495, 498, 82 LRRM 3055, 3057 (E.D. Pa. 1973)

and cases cited therein. Further, the union has not furnished the

Council with any decisions in which a court has set aside an award in

the private sector on the ground that the arbitrator tended to confine

the scope of the hearing to the substance of the grievance he was

commissioned to resolve and refused to consider an issue in a grievance which was not before him; we find none. Therefore, the union's

second exception does not assert a ground similar to those upon %ifalch

challenges to labor arbitration awards are sustained by courts in

private sector cases.

Accordingly, the union's petition is denied because it falls to meet

the requirements for review set forth in section 2411.32 of the

Council's rules of procedure.

By the Council.

cc: Philip J. DlBenedetto

SSA

303

INTERPRETATIONS AND POLICY STATEMENTS

January 1, 1974 through December 31, 1974

305

A labor organization requested the Council to issue an interpretation

and statement on the following questions:

1. Under Executive Order 11491, as amended, is the agency

within the department or the department itself the

"agency" with which the labor organization shall negotiate agreements?

2. If the department is the "agency," may the labor organization insist that a representative of the department

negotiate the next agreement?

The Council advised the labor organization on February 26, 1974, that

after careful consideration of the request and the submission of the

department concerned it had determined that the request did not meet

the requirements of section 2410.3 of the Council's rules. The Council

concluded that:

First, the questions raised can more appropriately be resolved by other

means available under the Order. In this regard, it was noted that

section 19(a)(6) provides that it shall be an unfair labor practice for

agency management to refuse to consult, confer, or negotiate with a labor

organization as required by the Order. Section 6(a)(4) of the Order provides that the Assistant Secretary of Labor for Labor-Management Relations

shall decide unfair labor practice complaints. In fact, it was noted that

the labor organization had indicated in its request that during the last

negotiations "consideration was given to filing of unfair labor practice

charges." That course was not pursued because it would not assure "that a

contract would be in hand"; instead the labor organization decided "to

raise the underlying issues in the appropriate fortun at a later time, after

the contract was an absolute, . . . [department]-approved certitude."

Second, the resolution of the questions which were raised would not prevent

the proliferation of cases involving the same or similar policy issues. No

information was offered to Indicate that similar questions exist or are

likely to arise with respect to the relationship between executive departments and their immediate major organizational subdivisions.

Third, while the specific questions appeared to have some general applicability to other labor—management relationships within the executive branch,

the series of events described in the request were peculiar to the immediate

relationship and there was no indication that this problem exists elsewhere.

Fourth, while the questions confronted the parties in the context of their

labor—management relationship In negotiations conducted during 1973, there

was no indication that the questions require resolution at this time through

the Council’s major policy procedures.

FLRC No. 73P-2

307
Fifth, the questions were not presented jointly by the parties involved.

Instead, the department contended that the questions do not constitute

major policy issues requiring decision by the Council under Part 2410 of

its regulations. In particular, the department conceded in its brief

that the labor organization was certified by the Assistant Secretary

as the exclusive representative of a unit in the agency; that the Aberdeen

Proving Ground decision (FLRC No. 70A-9) was dispositive of the issue of

whether the agency is the "agency” with which the labor organization should

deal; and finally, specifically stated:

[F]or the purposes of negotiating an agreement under section 11,

. . . [the agency] is the "agency." Any contrary interpretation would virtually eliminate the subordinate organization of

the . . . [department] from coverage of the entire order and

as the Council has stated: "... section 2(a) obviously did

not intend so incongruous a result."

Sixth, while resolution of the problems presented by the labor organization

might improve its bargaining relationship with the agency, it would offer

no special benefits in promoting constructive and cooperative labormanagement relationships in the Federal service generally or otherwise

promote, in an overall way, the purposes of the Order.

In Sinn, the Council concluded that there was no real question as to the

agency with which the labor organization is to bargain. The Assistant

Secretary has certified the labor organization as the exclusive bargaining

representative for a nationwide unit within the agency and the department

has conceded in its brief that the agency is the "agency" with which the

labor organization should deal. Moreover, as recognized by the labor

organization in its submission, an alleged failure by an agency to meet

the requirements of section 11(a) and the requirements of section 15 of

the Order would be subject to the unfair labor practice procedures of

section 19.

308
'c

\ If '. ! ?- ; -,': '^' "^vVX^' ’Lc

'xJ: -

UNITED STATES

FEDERAL LABOR RELATIONS COUNCIL

1900 E STREET, N.W. • WASHINGTON, D.C. 20415

February 26, 197A

Mr. William B. Peer

General Counsel

Professional Air Traffic

Controllers Organization

Suite 1002

1101 Seventeenth St., NW.

Washington, DC 20036

Re: FLRC No. 73P-2

Dear Mr. Peer:

This is in further reply to your "Request for Interpretation of

Executive Order and Statement on Major Policy Issues." You

request the Council to issue an interpretation and statement on

the following questions:

1. Under Executive Order 11491, as amended, is the

Federal Aviation Administration or Department of

Transportation the "agency" with which the Professional Air Traffic Controllers Organization

shall negotiate agreements?

2. If Department of Transportation is the "agency,"

may the Professional Air Traffic Controllers

Organization insist that a representative of

Department of Transportation negotiate the next

agreement?

Section 2410.3 of the Council's rules contains the considerations

governing issuance of interpretations and policy statements. It

provides that:

(a) The Council shall, in its discretion, issue

interpretations of the order and statements on major

policy issues which it deems to have general applicability to the overall program in assuring the effectuation of the purposes of the order. The Council may act

on its own initiative or upon request as provided in

§ 2410.4.

309
(b) In deciding whether to issue an interpretation

or a policy statement, the Council shall consider:

(1) Whether the question presented can more appropriately be resolved by other means available under law,

other Executive orders, regulation or the order;

(2) Where other means are available, whether Council

action would prevent the proliferation of cases involving

the same or similar question of interpretation or major

policy issue;

(3) Whether the resolution of the question presented

would have general applicability to the overall program;

(4) Whether the issue currently confronts parties

in the context of a labor-management relationship;

(5) Whether the question is presented jointly by

the parties involved; and

(6) Whether Council resolution of the question of

interpretation or major policy issue would promote constructive and cooperative labor-management relationships

in the Federal service and would otherwise promote the

purposes of the order.

The Council has considered carefully your request and the submission

of the Department of Transportation in relation to § 2410.3 and has

determined that your request does not meet the requirements of that

section.

First, the questions which you raise can more appropriately be

resolved by other means available under the Order. In this regard,

it is noted that section 19(a)(6) provides that it shall be an

unfair labor practice for agency management to refuse to consult,

confer, or negotiate with a labor organization as required by the

Order. Section 6(a)(4) of the Order provides that the Assistant

Secretary of Labor for Labor-Management Relations shall decide

unfair labor practice complaints. In fact, you indicated in your

request that during the last negotiations "consideration was given

to filing of unfair labor practice charges." That course was not

pursued because it would not assure "that a contract would be in

hand"; instead you decided "to raise the underlying issues in the

appropriate forum at a later time, after the contract was an absolute, DOT-approved certitude."

Second, the resolution of the questions which you raised would not

prevent the proliferation of cases involving the same or similar

policy issues. You offered no information to indicate that similar

questions exist or are likely to arise with respect to the relationship between executive departments and their immediate major organizational subdivisions.

310
Third, while the specific questions appear to have some general applicability to other labor-management relationships within the executive

branch, the series of events described in your request are peculiar

to the FAA-PATCO relationship and there is no indication that this

problem exists elsewhere.

Fourth, while the questions confronted the parties in the context of

their labor-management relationship in the 1973 negotiations, there

is no indication that the questions require resolution at this time

through the Council's major policy procedures.

Fifth, the questions have not been presented jointly by the parties

involved. Instead, the Department of Transportation contends that

the questions do not constitute major policy issues requiring decision

by the Council under Part 2410 of its regulations. In particular, the

Department of Transportation concedes in its brief that PATCO was

certified by the Assistant Secretary as the exclusive representative

of a unit in the Federal Aviation Administration; that the Aberdeen

Proving Ground decision (FLRC No. 70A-9) is dispositive of the issue

of whether the FAA is the "agency" with which PATCO should deal; and

finally, specifically states:

[F]or the purposes of negotiating an agreement under

section 11, FAA is the "agency." Any contrary interpretation would virtually eliminate the subordinate

organization of the Department of Transportation from

coverage of the entire order and as the Council has

stated: "... section 2(a) obviously did not intend

so incongruous a result."

Sixth, while resolution of the problems presented by PATCO might improve

its bargaining relationship with FAA, it would offer no special benefits

in promoting constructive and cooperative labor-management relationships

in the Federal service generally or otherwise promote, in an overall

way, the purposes of the Order.

In sum, there is no real question here as to the agency with which

PATCO is to bargain. The Assistant Secretary has certified PATCO as

the exclusive bargaining representative for a nationwide unit within

FAA and DOT has conceded in its brief that FAA is the "agency" with

which PATCO should deal. Moreover, as recognized by PATCO in its

submission, an alleged failure by an agency to meet the requirements

of section 11(a) and the requirements of section 15 of the Order would

be subject to the unfair labor practice procedures of section 19.

311
Therefore, for all of the preceding reasons, the Council has determined

that the questions presented do not meet the considerations in section

2410.3 of the Council's rules. Accordingly, your request is denied.

By the Council.

Sincerely,

Henry B.Ce mazier III

Executive Director

cc: Hon. C. Brinegar

Transportation

Hon. A. P. Butterfield

FAA

Mr. E. V. Curran

FAA

Hon. P. Fasser, Jr.

Dept, of Labor

Mr. H. W. Solomon

FSIP

FMCS

Dept, of Labor

312
PART III.

SUBJECT MATTER INDEX

January 1, 1974 through December 31, 1974

313

SUBJECT MATTER INDEX*

January 1, 1974 through December 31, 1974

*PRACTICE AND PROCEDURE separately indexed beginning at 337.

315

SUBJECT MATTER 

INDEX TO FLRC DECISIONS

A

AGENCY

Definition................................ 73P-2

AGENCY GRIEVANCE PROCEDURE

Agency failure to follow agency

grievance procedure....................... 74A-3

Selection of union representative

by supervisor............................. 73A-32, 73A-33

AGENCY REGULATIONS

Applicable uniformly to more than

one activity.............................. 73A-64

Arbitrator's interpretation of agency

staff manual as "appropriate regulation"... 74A-17

Interpretation by agency head, misinterpretation of union proposal............... 73A-22

AGREEMENT, AGENCY HEAD APPROVAL............... 73A-16

AGREEMENT BAR................................. 73A-58

FLRC No(s).

^ICUS CURIAE [See "PRACTICE AND PROCEDURE -

Amicus curiae"]

APPROPRIATE UNIT DETERMINATIONS

Community of interest criterion........... 73A-61, 74A-14

317
FLRC No(s).

Eligibility of employees

- management officials................. 74A-34

- professionals and

nonprofessionals..................... 74A-14

- supervisors........... ............... 73A-63

Fair and effective representation

criterion.................................. 73A-54

Mixed unit of professionals and

nonprofessionals........................... 74A-14

Petition misunderstood by A/SLMR........... 74A-14

ARBITRATION

Costs...................................... 73A-67

Dispute as to meaning of award............. 73A-4

Grounds for review of awards

- ambiguity............................ 73A-44

- arbitrator acting in excess of

authority under the agreement........ 73A-44, 73A-50, 74A-12

- arbitrator exceeded scope of

submission agreement................. 74A-12

- arbitrator’s failure to decide

question submitted................... 73A-44

- erroneous findings of fact........... 74A-49

- failure to consider related

grievance............................ 74A-49

- misinterpretation of agreement....... 74A-1

- misinterpretation by agency of

arbitrator' s award................... 73A-50

- no review on merits.................. 74A-17

318
- prior award as controlling

precedent............................ 74A-17

- violates Comptroller General

decisions............................ 73A-46, 73A-50, 73A-51

- violates GSA order................... 73A-50

- violates law......................... 73A-44, 73A-46, 73A-51

- violates Order....................... 73A-42, 73A-67, 74A-1,

74A-12

- violates regulation.................. 73A-44, 73A-46, 73A-51,

74A-12, 74A-17

Implementation of award.

Council direction of....................... 73A-4

Procedural question left to final

disposition by arbitrator.................. 74A-49

Remedies

- leeway allowed in fashioning......... 74A-12

- remand for hearing de novo........... 74A-12

- remand to arbitrator for

clarification........................ 74A-12

Submission agreements...................... 73A-44, 74A-49

ARBITRATION PROCEDURE, NEGOTIABILITY AS APPLIED

TO INTERPRETATION OF NONNEGOTIABLE REGULATION OR

PRACTICE....................................... 73A-21

A/SLMR REVIEW [See also specific subject matter

heading]

Procedure [See "PRACTICE AND PROCEDURE"]

Representation cases

- ballots [See "ELECTIONS - Ballots"]

FLRC No(s).

319
- failure [of A/SLMR] to adhere to

applicable precedents................ 74A-34

- procedural responsibility of A/SI2IR... 73A-60

- refusal to consider allegations...... 74A-35

- refusal to consider RO crosspetition [for representation]........ 74A-J:>

- regulations of A/SLMR, interpretation and implementation............ /JA-ou

Unfair labor practice cases

- access to supervisory appraisals

of employees......................... 73A-5J

- agency failure to follow agency

grievance procedure.................. 74A~3

- issues raised previously under a

grievance procedure.................. 73A-66

- jurisdiction over issues subject to

established grievance or appeals

procedures........................... 74A-11

B

BACKPAY........................................ • """-'I’

BALLOTS [See "ELECTIONS - Ballots”]

BARGAINING HISTORY, EFFECT ON UNIT

DETERMINATIONS................................. ^

BARGAINING REPRESENTATIVE CHOICE,

AGENCY’S .......................................

FLRC No(s).

320
C

CARVE-OUT OR SEVERANCE OF UNIT

Nurses..................................... .. 73A-54

Professionals, subprofessionals............ .. 73A-54

CIVIL SERVICE COMMISSION INTERPRETATION

OF CSC REGULATIONS............................. .. 73A-44, 73A-46, 73A-51,

73A-53, 74A-2

5 CFR 550.803.................................. .. 73A-44

COMPENSATION

Backpay.................................... .. 73A-44, 73A-51, 74A-17

Environmental pay differentials............ .. 74A-12

Holiday pay................................ .. 73A-46

Measurement, grading of mixed jobs......... .. 74A-2

Of wage grade employees.................... .. 74A-2

Overtime................................... .. 73A-46

COMPTROLLER GENERAL DECISIONS.................. .. 73A-25, 73A-46, 73A-50,

73A-51

CONFIDENTIAL RECORDS, ACCESS TO................ .. 73A-53

CONSTITUTION AND BYLAWS, UNION................. .. 73A-43

CONTRACT BAR [See "AGREEMENT BAR"]

COUNSELING SESSIONS [See "FORMAL DISCUSSIONS"]

FLRC No(s).

321
FLRC No(s)

D

DETAILS AND TEMPORARY ASSIGNMENTS

Employee qualifications for................ 73A-16

Involuntary................................ 74A-49

DISCIPLINE

By employer, preliminary to

investigation.............................. 73A-6

By union [See also "UNION RIGHTS AND

PRIVILEGES"]............................... 73A-43

DISCRIMINATORY TREATMENT

Denial of reenlistment..................... 74A-11

Temporary and probationary employees v.

career and career-conditional employees.... 73A-6

DISCUSSIONS

Informal v. formal......................... 73A-6

E

ELECTIONS

Ballots.................................... 74A-5

Intervention in............................ 74A-5

EMPLOYEE APPRAISALS............................ 73A-53

EMPLOYEE CATEGORIES AND CLASSIFICATIONS

Air Traffic Controllers.................... 74A-1

322
Career and career-conditional.............. ... 73A-6

Management officials....................... ... 74A-34

Nurses..................................... ... 73A-42, 73A-54, 73A-61

Probationary............................... ... 73A-6

Professionals.............................. ... 74A-14

Supervisors................................ ... 73A-32, 73A-33, 73A-63

Temporary.................................. ... 7 3A-6

EMPLOYEE RIGHTS UNDER THE ORDER

Choice of own representative in agency

grievance or appellate action.............. ... 73A-32, 73A-33

Free speech................................. ... 74A-10

Membership in a union...................... ... 73A-43

Privacy of supervisory appraisals.......... ... 73A-53

Reinstatement to union membership.......... ... 73A-43

Selection of exclusive representative...... ... 73A-60

Union representation

- at agency grievance proceeding....... ....73A-32, 73A-33

- at counseling sessions............... ... 74A-11

- at formal discussions................ ... 74A-23

- at investigative interviews.......... ....74A-23

- at promotion appraisal meetings...... ....73A-45

- employer discouragement of........... ... 74A-26

EVIDENCE [See "PRACTICE AND PROCEDURE - Evidence"

and "A/SLMR REVIEW"]

EXECUTIVE ORDER 10987.......................... ....73A-25

FLRC No(s).

323
FLRC No(s).

EXECUTIVE ORDER 11491

Section 1(a)...............................

Section 2(a)...............................

Section 2(b)...............................

Section 6(a)...............................

Section 6(a)(4)............................

Section 6(d)...............................

Section 7(a)...............................

Section 7(b)...............................

Section 7(c)...............................

Section 7(d)(1)............................

Section 7(d)(2)............................

Section 7(d)(3)............................

Section 10(b)..............................

- "community of interest"..............

Section 10(b)(4)...........................

- "professional . . . employees".......

Section 10(d)(2)...........................

Section 10(e)..............................

- "employees in the unit"..............

- "formal discussions".................

- "is responsible for representing the

interests of all employees in the unit

without discrimination"..............

Section 1.................................

324

74A-5, 74A-27

73A-6, 73A-62, 74A-5,

74A-10

73P-2

73A-63

73A-60

73P-2, 73A-53

73A-60

73A-32, 73A-33

73A-32, 73A-33

73A-32, 73A-33

73A-32, 73A-33

73A-32, 73A-33

73A-32, 73A-33

73A-32, 73A-33

73A-61

74A-14

73A-54

74A-5

72A-50

73A-32, 73A-33

73A-6, 74A-11, 74A-23

73A-6
Section 11(a)............................... 73P-2, 73A-1, 73A-21,

73A-22, 73A-48, 74A-2

- "applicable laws and regulations,

including policies set forth in

the Federal Personnel Manual"......... 73A-64

“ "published agency policies and

regulations".......................... 73A-64

FLRC No(s).

Section 11(b)............................... 73A—21 73A-42

- its organization[,] . . , numbers,

types, and grades of positions or

employees assigned to an organizational unit, work project or tour

of duty".............................. 73A-22, 73A-25, 74A-2

( c ) 7 3 A —6

Section 11(c)(3)............................ ..73A-22

Section 11(c)(4)............................ ..73A-1

Section 12(a)............................... ..73A-21, 73A-25

- "matters covered by the agreement".... ..74A-12

Section 12(b)............................... ..73A-6, 73A-21, 74A-2

Section 12(b)(1)............................ ..73A-42

Section 12(b)(2)............................ ..73A-42

" to "assign"........................... .. 73A-16

- "to hire" ............................ .. 73A-67

- to "promote".......................... .. 73A-22, 73A-67

Section 12(b)(4)............................ .. 73A-42

Section 12(b) (5)............................ .. 73A-16

- "to determine . . . personnel"........ ...73A-42, 74A-1

325
FLRC No(s).

Section 13 [prior to amendment].............. 72A-50, 73A-1, 73A-32,

73A-33, 74A-10

Section 13(a) [prior to amendment]........... 73A-1, 73A-21, 73A-25

- "negotiated grievance procedure

may not cover . . . matters for

which statutory appeals procedures

exist"................................. 7 4A-2

Section 13(b) [prior to amendment]........... 73A-21

Section 13(b)

- "Arbitration may be invoked only

by the agency or the exclusive

representative. Either party may

file exceptions . . . ."............... 73A-1

Section 15 [prior to amendment].............. 73P-2, 73A-16

Section 19(a)(1)............................. 73A-6, 73A-32, 73A-33,

73A-45, 73A-52, 73A-66,

74A-3, 74A-11, 74A-23,

74A-26, 74A-27, 74A-39

Section 19(a)(2)............................. 73A-52, 74A-11

Section 19(a)(3)............................. 73A-45, 74A-26, 74A-27

Section 19(a)(5)............................. 73A-66

Section 19(a)(6)............................. 73P-2, 72A-50, 73A-64,

73A-66, 74A-11, 74A-23,

74A-39

Section 19(b)(1)............................. 73A-62

Section 19(c)

- "shall not deny membership"............ 73A-43

Section 19(d)................................ 73A-66, 74A-11

326
F

FEDERAL PERSONNEL MANUAL

Chapter 312................................. 73A-21, 73A-42

Chapter 315

- subchapter 8-4........................ 73A-6

Chapter 316

- subchapter 4-2........................ 73A-6

Chapter 335................................. 73A-64

- subchapter 2.......................... 73A-44

- subchapter 5.......................... 73A-53

- subchapter 6-4........................ 73A-51

Chapter 511................................. 73A-42

Chapter 713

- appendix B............................ 73A-53

Chapter 771

- subchapter 1.......................... 73A-53

- subchapter 3.......................... 73A-53

Supplement 532-1

- subchapter S6-4....................... 74A-2

- subchapter S8-7....................... 74A-12

- appendix J ............................ 74A-12

FORMAL DISCUSSIONS.............................. 74A-11, 74A-23

FLRC No(s).

327
URC No(s).

G

GRIEVANCE/ARBITRATION

Agency failure to follow agency

grievance procedure........................ 74A-3

Grievability............................... 74A-10

Negotiated procedure, nature and scojpe

- adverse actions excluded............. 73A-25

- application to other than bilaterally

determined matters................... 73A-21

- management grievances................ 73A-1

- matters for which statutory appeals

procedures exist..................... 73A-21, 73A-25, 74A-2

- procedures to initiate a grievance.... 73A-1

- subject only to the explicit limitations prescribed by the Order........ 73A-21, 73A-25

Refusal to process......................... 74A-39

H

HEALTH AND SAFETY, HAZARDOUS WORKING

CONDITIONS..................................... 74A-12

HOLIDAY

Pay [See "PREMIUM PAY” and "COMPENSATION"!

Work [See "WORK SCHEDULES" and "HOURS OF

WORK"]

HOURS OF WORK

Holiday, Sunday and night assignments...... 73A-25, 73A-46

Overtime................................... 73A-25

328
- equitable distribution............... 73A-25

- not to be assigned as reward

or penalty........................... 73A-25

- pay for work not performed........... 73A-46

I

INTERVENTION, REPRESENTATION PROCEEDING........ 73A-60, 74A-5

J

JOB CONTENT

Assignment of specific duties to

particular types of positions or

employees.................................. ... 7 3A-25

Assignment of unrelated duties............. ... 73A-25, 74A-2

"Job grading standards" as

controlling................................ ... 74A-2

K-L-fl

FLRC No(s).

MANAGEMENT OFFICIALS [See "EMPLOYEE

CATEGORIES AND CLASSIFICATIONS"]

MANAGEMENT RIGHTS [See also "EXECUTIVE

ORDER 11491 - Section 12(b)"]

Mandatory nature........................... 73A-67

)

MEMBERSHIP, UNION

Denial of.................................. 73A-43

Reinstatement to........................... 73A-43

329
FLRC No(s).

N

NAMES AND ADDRESSES [See "REFUSAL TO

BARGAIN"]

NEGOTIABILITY [See also specific subject

matter headings]

Agency regulations as bar.................. ... 73A-6, 73A-64

Order as bar................................ 73A—16

Proposals

- ambiguity..................... ....... 73A-25

- constitutes "discrimination"

within the meaning of

section 10(e)........................ 73A-6

- contained in prior agreement......... 73A-25

- misinterpretation.................... 73A-25

NOTICE [See "PRACTICE AND PROCEDURE - Service"]

NOTICE, POSTING OF............................. 74A-35

NURSES [See "EMPLOYEE CATEGORIES AND

CLASSIFICATIONS - Nurses"]

0

OBLIGATION TO BARGAIN [See "REFUSAL TO

BARGAIN" and "NEGOTIABILITY"]

OVERTIME [See "PREMIUM PAY,” "HOURS OF

WORK," and "WORK SCHEDULES"]

330
P

PAY [See "COMPENSATION” and "PREMIUM PAY"]

PERSONNEL ACTION............................... ... 73A-51

PERSONNEL, DEFINITION.......................... ... 73A-42

POSITION CLASSIFICATION STANDARDS.............. ... 73A-42

POSITION DESCRIPTIONS.......................... ... 73A-42

Definitions and clarification

of terms, negotiability.................... ... 73A-21, 73A-A8, 74A-2

Preparation as part of promotion

procedure.................................. ... 74A-17

POSTING OF NOTICES [See "NOTICE, POSTING OF"]

PRECEDENT, A/SLMR FAILURE TO ADHERE TO......... ... 74A-34

PREMIUM PAY

Assignment of holiday work to avoid........ ... 73A-46

Environmental pay differentials............ ... 74A-12

Overtime pay for work not performed........ ... 73A-46

PRIVACY................ ........................... 73A-53

PRIVATE SECTOR PRACTICE, SIGNIFICANCE.......... ... 74A-12

FLRC No(s).

PARTY, DEFINITION.............................. ... 74A-11

331
PROCEDURE [See "PRACTICE AND PROCEDURE"]

PRODUCTION STANDARDS........................... 73A-25

PROFANITY [See "SPEECH"]

FLRC No(s).

PROFESSIONAL EMPLOYEES [See "EMPLOYEE

CATEGORIES AND CLASSIFICATIONS -

Professional en5>loyees"]

PROMOTIONS

Delay in processing........................ ... 74A-17

Merit

- arbitrator's award directing......... ... 73A-44, 73A-67

"Procedures" for........................... ... 73A-16, 73A-22

Priority consideration..................... ... 73A-51

Retroactive................................ ... 73A-51

Temporary, qualification necessary for..... ... 73A-16

Q-R

REFUSAL TO BARGAIN [See also "EXECUTIVE

ORDER 11491- Sections 11(b), 12(b), and

19(a)(6)"]

Employer failure to supply names

and addresses.............................. 72A-50

REINSTATEMENT TO UNION MEMBERSHIP.............. 73A-43

REPRESENTATION PETITION, SOLICITATION

OF SIGNATURES.................................. 73A-62

332
FLRC No(s).

REPRESENTATION PROCEEDINGS, INTERVENTION IN....

RULES AND REGULATIONS [See "AGENCY REGULATIONS,"

"FEDERAL LABOR RELATIONS COUNCIL RULES AND

REGULATIONS," and "FEDERAL PERSONNEL MANUAL"]

s

SENIORITY AND TENURE

Overseas assignments.......................

Shift assigiunents..........................

SERVICE [See "PRACTICE AND PROCEDURE"]

SEVERANCE [See "CARVE-OUT OR SEVERANCE OF UNIT"]

SHIFTS [See "WORK SCHEDULES" and "HOURS OF WORK"]

SOLICITATION DURING DUTY HOURS.................

SPEECH

Employee................. .................

Employer

- discouraging union representation....

- supervisor's profane statement.......

STAFFING PATTERNS AND TOURS OF DUTY

Job content................................

Number of employees assigned to tours

of duty as integrally related to...........

73A-60, 74A-5

73A-64

73A-42

73A-62

74A-10

74A-26

74A-39

73A-25

73A-25

333
FLRC No(s).

Overtime assignments....................... .. 73A-25

Request for assistance by Air Traffic

Controller................................. .. 74A-1

Rotation of officer of the day duties...... .. 73A-22

STARE DECISIS [See "PRECEDENT"]

Overseas assignments.................... ..... 73A-6'f

STAY [See also "PRACTICE AND PROCEDURE -

Stay of A/SLMR's decision pending review"

and "PRACTICE AND PROCEDURE - Stay of

arbitrator's award"]

SUPERVISORS

Indicia of status, authority over

foreign nationals.......................... 73A-63

Inhibited in making decisions.............. 74A-1

Right to designate union officials as

representative during agency grievance

procedure.................................. 73A-32, 73A-33

T

TEMPORARY ASSIGNMENTS [See "DETAILS

AND TEMPORARY ASSIGNMENTS"]

TOURS OF DUTY [See "STAFFING PATTERNS

AND TOURS OF DUTY," "HOURS OF WORK,"

and "WORK SCHEDULES"]

u

UNFAIR LABOR PRACTICES [See also "A/SLMR

REVIEW - Unfair labor practice cases" and

specific subject matter headings]

334
FLRC No(s).

Timeliness of complaint [See "PRACTICE

AND PROCEDURE"]

UNILATERAL ACTION.............................. 73A-64

UNION RIGHTS AND PRIVILEGES

Effective means of connnunication

with employees............................ ....72A-50

Inctunbent union

- at counseling sessions............. ....74A-11

- at investigative interviews........ ... 74A-23

- in representation proceedings...... ....74A-5

To discipline locals...................... ... 73A-43

To discipline members..................... ... 73A-43

Waiver of exclusive recognition........... ... 74A-35

UNIT DETERMINATION [See "APPROPRIATE UNIT

DETERMINATIONS"]

UNITED STATES CODE

5 U.S.C. § 5334(b)........................ ....73A-51

5 U.S.C. § 5346(c)........................ ....74A-2

5 U.S.C. § 5542........................... ....73A-25

5 U.S.C. § 5596 (Back Pay Act)............ ....73A-44, 73A-51

8 U.S.C. § 1353(a)........................ ....73A-25

V-W-X-Y-Z

WAIVER OF EXCLUSIVE RECOGNITION................ 74A-35

Charge by another union................... 73A-62

335
FLRC No(s).

WORK ASSIGNMENT [See also "JOB CONTENT"]

Of specific duties to particular

types of positions or employees............ ... 73A-21, 73A-25

Of unrelated duties........................ ... 73A-21, 73A-25, 73A-48,

74A-2

Of work not in "appropriate classification

standards"................................. ... 74A-2

Performed in an overtime status............ ... 73A-25

WORKLOAD....................................... ... 74A-1

WORK SCHEDULES [See also "STAFFING PATTERNS"

and "TOURS OF DUTY"]

Holiday work............................... ... 73A-25, 73A-46

Number and duration of tours "integrally

related" to number, types and grades of

employees assigned to them................. ... 73a-25

Night work distribution.................... ... 73A-25

Overtime distribution...................... ... 73A-25

Premium work, assignment as reward or

penalty.................................... ... 73A-25

Rotation roster system..................... ... 73A-64

Shift changes.... ............................. 73A-42

Tours of duty.............................. ... 73A-22, 73A-25

336
PRACTICE AND PROCEDURE FLRC No(s).

PRACTICE AND PROCEDURE

Access to employee appraisals.............. 73A-53

Micus curiae petition for review.......... 74A-11

Clarification of A/SLMR decision,

request by FLRC............................ 74A-14

Evidence

- A/SLMR finding not supported by

weight of............................ 74A-34

- burden to adduce facts at

investigative stage of ULP

to establish a reasonable

basis................................

- ex parte submission to FLRC..........

- failure to consider by A/SLMR........

- substantial factual issues, requirement for hearing.....................

Extension of time..........................

Grounds for review

- appeal from A/SLMR denial of request

to intervene.........................

- appeal from A/SLMR dismissal.........

- arbitration exceptions...............

- contents of petition.................

Interlocutory appeals

- A/SLMR remand of appropriate unit

determination to ARD................. 74A-37

337

74A-23

74A-23

73A-45, 73A-52, 73A-54,

73A-61

73A-45, 73A-52, 73A-66,

74A-23, 74A-26, 74A-39

73A-55

73A-60

73A-52, 73A-66, 74A-26,

74A-34, 74A-35, 74A-39

73A-42, 73A-46, 73A-51,

73A-67, 74A-12, 74A-17,

74A-49

73A-22
- direction of elections, request

to be held in abeyance............... 73A-65, 74A-6

Joinder o£ grievances, procedural

question to be left to final disposition by arbitrator......................... 74A-49

Mootness

- arbitration award review............. ....73A-67

- review of A/SLMR decision............ ....74A-21

Motions

- show cause hearing................... ....73A-4

Oral argvment.............................. ....72A-50

Petition incomplete........................ ....74A-62

Policy issues, considerations governing

issuance of................................ 73P-2

Service

- actual notice, effect of............. 73A-60

- of negotiability determination....... 74A-55

Stay of A/SLMR decision pending review

- denied............................... 74A-10, 74A-11, 74A-35,

74A-37

- granted.............................. 74A-8

Stay of arbitration award

- denied............................... 74A-1

- granted.............................. 73A-44, 73A-46, 73A-51,

73A-67

Timeliness

- continuing ULP....................... 74A-27

FLRC No(s).

338
filing of request for stay of A/SIKR’s

decision pending review.............. ... 74A-8

filing of ULP........................ ... 74A-27

intervention in representation

proceeding........................... ... 73A-60, 74A-5

measurement from date of discovery v.

occurrence........................... ... 74A-27

negotiability appeal................. ... 74A-55

of cross-petition for review......... ... 74A-35

of nonnegotiability contention....... ... 73A-6

petition for review of A/SLMR

decision............................. ... 74A-56

review of arbitration award.......... ... 74A-4, 74A-57, 74A-62

submission of necessary materials.... ... 74A-18

waiver of requirement................ ... 74A-27, 74A-55

FLRC No(s).

extension of time.................... ... 73A-55

339

☆ U.S. GOVERNMENT PRINTING OFFICE : 1976 0 - 20&-791