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 1 FLRA No. 78
                                            JULY 5, 1979
 
 MR. RONALD D. KING, DIRECTOR
 CONTRACT AND APPEALS DIVISION
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 1325 MASSACHUSETTS AVENUE, N.W.
 WASHINGTON, D.C. 20005
 
                            RE:  U.S. GEOLOGICAL SURVEY, GULF OF
                                 MEXICO OCS OPERATIONS, METAIRIE,
                                 LOUISIANA, Assistant Secretary Case
                                 No. 64-4091(CA), Case No. 0-AS-3
 
 DEAR MR. KING:
 
    THE AUTHORITY HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF
 THE ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
 
    IN THIS CASE, LOCAL 3457, AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO (THE UNION) FILED AN UNFAIR LABOR PRACTICE COMPLAINT
 ALLEGING THAT THE U.S. GEOLOGICAL SURVEY, GULF OF MEXICO OCS OPERATIONS,
 METAIRIE, LOUISIANA (THE ACTIVITY) VIOLATED SECTION 19(A)(1) AND (6) OF
 THE ORDER BY UNILATERALLY ESTABLISHING A POLICY AFFECTING WORKING
 CONDITIONS OF EMPLOYEES IN THE BARGAINING UNIT WITHOUT CONSULTING OR
 CONFERRING WITH THE UNION.  AS FOUND BY THE ACTING REGIONAL
 ADMINISTRATOR (ARA), THE UNION INITIALLY FILED A GRIEVANCE UNDER THE
 PARTIES' NEGOTIATED PROCEDURE ALLEGING THAT THE ACTIVITY HAD VIOLATED
 THE NEGOTIATED AGREEMENT WHEN IT FAILED TO NOTIFY INFORM EMPLOYEES OF
 POSSIBLE DISCIPLINARY ACTION AND OF THEIR RIGHT TO UNION REPRESENTATION
 DURING INTERVIEWS HELD BY A REPRESENTATIVE OF AGENCY HEADQUARTERS
 CONCERNING THEIR ALLEGED MISCONDUCT.  THE ACTIVITY DENIED THE GRIEVANCE,
 ASSERTING THAT THE CITED ARTICLE DID NOT APPLY TO INVESTIGATIONS
 CONDUCTED BY ORGANIZATIONS WITHIN THE AGENCY THAT WERE NOT UNDER THE
 ACTIVITY'S CONTROL AND SUPERVISION.  THE ACTIVITY ALSO PROVIDED THE
 UNION WITH A "SANITIZED" COPY OF INSTRUCTIONS FROM AGENCY HEADQUARTERS
 WHICH DIRECTED THE ACTIVITY NOT TO INFORM THE EMPLOYEES INVOLVED OF THE
 IMPENDING INVESTIGATION AND FURTHER INDICATED THAT THE HEADQUARTERS
 REPRESENTATIVE WOULD ADVISE THE EMPLOYEES OF THEIR RIGHTS AS
 APPROPRIATE.
 
    THEREAFTER, THE UNION FILED THE INSTANT UNFAIR LABOR PRACTICE
 COMPLAINT ALLEGING THAT THE ACTIVITY HAD VIOLATED THE FOUR UNIT
 EMPLOYEES' RIGHT TO UNION REPRESENTATION ESTABLISHED BY THE NEGOTIATED
 AGREEMENT AND GUARANTEED BY THE ORDER, AND HAD UNILATERALLY ESTABLISHED
 A POLICY WITHOUT CONSULTING OR CONFERRING WITH THE UNION.  THE ARA
 DISMISSED THE COMPLAINT IN ITS ENTIRETY, RELYING UPON THE PROVISIONS OF
 SECTION 19(D) OF THE ORDER.  /1/ IN THIS REGARD HE STATED:
 
    THE ASSISTANT SECRETARY HAS FOUND THAT (S)ECTION 19(D) CLEARLY
 APPLIES TO WHETHER BASIC
 
    ISSUES ARE RAISED, NOT WHETHER SPECIFIC THEORIES ARE RAISED AND THE
 ISSUES IN YOUR GRIEVANCE
 
    AND THE INSTANT COMPLAINT ARE IDENTICAL, IN MY OPINION;  I.E.,
 WHETHER OR NOT (THE ACTIVITY)
 
    VIOLATED ARTICLE 9-4 OF THE COLLECTIVE BARGAINING AGREEMENT.
 
    THE ASSISTANT SECRETARY, IN AGREEMENT WITH THE ARA AND BASED ON HIS
 REASONING, FOUND THAT "THE EVIDENCE IS INSUFFICIENT TO ESTABLISH A
 REASONABLE BASIS FOR THE INSTANT COMPLAINT . . ." ACCORDINGLY, HE DENIED
 THE UNION'S REQUEST FOR REVIEW SEEKING REVERSAL OF THE ARA'S DISMISSAL
 OF THE INSTANT COMPLAINT.
 
    IN THE PETITION FOR REVIEW ON BEHALF OF THE UNION, IT IS CONTENDED,
 IN EFFECT, THAT THE ASSISTANT SECRETARY'S DECISION APPEARS ARBITRARY AND
 CAPRICIOUS OR PRESENTS A MAJOR POLICY ISSUE.  IN ESSENCE, THE PETITION
 ASSERTS THAT THE ASSISTANT SECRETARY WAS INCORRECT IN CONCLUDING THAT
 THE INSTANT UNFAIR LABOR PRACTICE COMPLAINT WAS BARRED BY OPERATION OF
 SECTION 19(D) OF THE ORDER.  IN THIS CONNECTION, IT IS CONTENDED THAT
 THE ISSUE IN THE GRIEVANCE AND IN THE UNFAIR LABOR PRACTICE COMPLAINT
 WERE NOT IDENTICAL.  FINALLY, IT IS ARGUED THAT THE ASSISTANT
 SECRETARY'S FINDING OF INSUFFICIENT EVIDENCE TO ESTABLISH A REASONABLE
 BASIS FOR THE COMPLAINT WAS INADEQUATE INASMUCH AS THE ARA DID NOT
 EXAMINE THE EVIDENCE IN DISMISSING THE COMPLAINT ON SECTION 19(D)
 GROUNDS.
 
    IN THE AUTHORITY'S OPINION, THE PETITION FOR REVIEW OF THE ASSISTANT
 SECRETARY'S DECISION DOES NOT MEET THE REQUIREMENTS OF SECTION 2400.2 OF
 THE AUTHORITY'S TRANSITION RULES WHICH INCORPORATES BY REFERENCE SECTION
 2411.12 OF THE COUNCIL'S RULES.  THAT IS, THE DECISION OF THE ASSISTANT
 SECRETARY DOES NOT APPEAR ARBITRARY AND CAPRICIOUS OR PRESENT ANY MAJOR
 POLICY ISSUES.
 
    SPECIFICALLY, WITH RESPECT TO THE CONTENTION THAT THE ASSISTANT
 SECRETARY WAS INCORRECT IN FINDING THE INSTANT UNFAIR LABOR PRACTICE
 COMPLAINT BARRED BY SECTION 19(D), SUCH CONTENTION CONSTITUTES
 ESSENTIALLY MERE DISAGREEMENT WITH THE ASSISTANT SECRETARY'S FINDING, IN
 AGREEMENT WITH THE ARA, THAT "THE ISSUES IN (THE UNION'S PRIOR)
 GRIEVANCE AND THE INSTANT COMPLAINT ARE IDENTICAL . . ." AND THEREFORE
 PROVIDES NO BASIS FOR AUTHORITY REVIEW.  SEE, E.G., INTERNAL REVENUE
 SERVICE, OGDEN SERVICE CENTER, ET AL., A/SLMR NO. 806, 5 FLRC 700 (FLRC
 NO.  77A-40 (AUG. 12, 1977), REPORT NO. 133);  DEPARTMENT OF THE NAVY,
 PEARL HARBOR NAVAL SHIPYARD, ASSISTANT SECRETARY CASE NO. 73-587(CA), 3
 FLRC 595 (FLRC NO. 75A-57 (SEPT. 18, 1975), REPORT NO. 83).  SIMILARLY,
 THE ASSERTION THAT THE ASSISTANT SECRETARY'S FINDING OF INSUFFICIENT
 EVIDENCE TO ESTABLISH A REASONABLE BASIS FOR THE COMPLAINT WAS
 INADEQUATE AGAIN CONSTITUTES, IN EFFECT, NOTHING MORE THAN DISAGREEMENT
 WITH THE ASSISTANT SECRETARY'S CONCLUSION THAT SECTION 19(D) PRECLUDED
 FURTHER PROCESSING OF THE INSTANT UNFAIR LABOR PRACTICE COMPLAINT, AND
 THEREFORE PRESENTS NO BASIS FOR AUTHORITY REVIEW.
 
    SINCE IT DOES NOT APPEAR THAT THE ASSISTANT SECRETARY'S DECISION IS
 ARBITRARY AND CAPRICIOUS OR PRESENTS A MAJOR POLICY ISSUE, THE APPEAL
 FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED IN SECTION 2400.2
 OF THE AUTHORITY'S TRANSITION RULES WHICH INCORPORATES BY REFERENCE
 SECTION 2411.12 OF THE COUNCIL'S RULES.  ACCORDINGLY, THE PETITION FOR
 REVIEW IS HEREBY DENIED.  /2/
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
    CC:  A. D. ACUFF
 
    USGS
 
    /1/ SECTION 19(D) PROVIDES, IN PERTINENT PART:
 
    (D) ISSUES WHICH CAN BE RAISED UNDER A GRIEVANCE PROCEDURE MAY, IN
 THE DISCRETION OF THE AGGRIEVED PARTY, BE RAISED UNDER THAT PROCEDURE OR
 THE COMPLAINT PROCEDURE UNDER THIS SECTION, BUT NOT UNDER BOTH
 PROCEDURES . . .
 
    /2/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1124), THE INSTANT CASE WAS DECIDED SOLELY ON THE
 BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
 APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE RESULT WHICH
 WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
 STATUTE RATHER THAN THE ORDER.
 
 
 

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