---

 1 FLRA No. 119
 
 MR. ELIHU I. LEIFER
 SHERMAN, DUNN, COHEN AND LEIFER
 1125 15TH STREET, N.W.,  SUITE 801
 WASHINGTON, D.C.  20005
 
                      RE:  DEPARTMENT OF THE INTERIOR, BUREAU OF
                           RECLAMATION, YUMA PROJECTS OFFICE, YUMA,
                           ARIZONA, A/SLMR No. 1151, Case No. 0-AS-9
 
 DEAR MR. LEIFER:
 
    THE AUTHORITY HAS CAREFULLY CONSIDERED YOUR APPEAL FROM THE ASSISTANT
 SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
 
    AS YOU ARE AWARE, THE FUNCTIONS OF THE FEDERAL LABOR RELATIONS
 COUNCIL, IN A MATTER SUCH AS HERE INVOLVED, WERE TRANSFERRED TO THE
 AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN NO. 2 OF 1978 (43
 FED.REG. 36040), WHICH TRANSFER OF FUNCTIONS IS IMPLEMENTED BY SECTION
 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND REGULATIONS (44 FED.REG.
 7).  THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE PERFORMANCE OF
 THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
 
    IN THIS CASE, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1487
 (NFFE) SOUGHT AN ELECTION IN A UNIT OF ALL WAGE BOARD EMPLOYEES IN THE
 TRADES AND CRAFTS EMPLOYED BY THE DEPARTMENT OF INTERIOR, BUREAU OF
 RECLAMATION, YUMA PROJECTS OFFICE, YUMA, ARIZONA (THE ACTIVITY),
 EXCLUDING, AMONG OTHERS, "SUPERVISORS AS DEFINED IN EXECUTIVE ORDER
 11491, AS AMENDED." THE ASSISTANT SECRETARY FOUND, BASED UPON THE
 STIPULATION OF THE PARTIES AND THE EVIDENCE DEVELOPED AT THE HEARING,
 THAT THE UNIT SOUGHT IS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
 RECOGNITION.
 
    THE ONLY ISSUE RAISED BY THE PARTIES CONCERNING THE ELIGIBILITY OF
 EMPLOYEES IN THE JOB CATEGORY OF FOREMAN II, WHOM THE PARTIES
 STIPULATED, AND THE RECORD WAS FOUND TO SUPPORT, ARE SUPERVISORS WITHIN
 THE MEANING OF SECTION 2(C) OF THE ORDER.  THE INTERNATIONAL BROTHERHOOD
 OF ELECTRICAL WORKERS, LOCAL 640, AFL-CIO (IBEW) CONTENDED THAT SECTION
 24 OF THE ORDER /1/ PRESERVES THE ELIGIBILITY OF THESE EMPLOYEES FOR
 INCLUSION IN THE UNIT IN THAT, ALTHOUGH SUPERVISORY, THEY HAVE BEEN
 HISTORICALLY INCLUDED (SINCE THE 1940'S) IN THE IBEW'S UNIT BY
 NEGOTIATED AGREEMENT.
 
    THE ASSISTANT SECRETARY FOUND, WITH RESPECT TO THE ELIGIBILITY OF THE
 FOREMAN II EMPLOYEES, THAT THE IBEW UNIT CONTAINING BOTH SUPERVISORY AND
 NONSUPERVISORY EMPLOYEES CONTINUES TO BE VIABLE PURSUANT TO SECTION 24
 OF THE ORDER.  /2/ HE FURTHER FOUND THAT NFFE IS NOT ELIGIBLE, UNDER
 SECTION 24 OF THE ORDER, TO REPRESENT THE FOREMAN II EMPLOYEES IN THE
 UNIT SOUGHT.  THE ASSISTANT SECRETARY THEREFORE CONCLUDED THAT NFFE'S
 PETITION, IN EFFECT, CONSTITUTES AN APPROPRIATE ATTEMPT TO SEVER A UNIT
 OF NONSUPERVISORY EMPLOYEES FROM THE UNIT EXCLUSIVELY REPRESENTED BY
 IBEW;  THAT THE ONLY QUESTION CONCERNING REPRESENTATION IS WHETHER SUCH
 NONSUPERVISORY EMPLOYEES WISH TO BE SEPARATELY REPRESENTED BY NFFE;
 THAT NO QUESTION CONCERNING REPRESENTATION EXISTS AS TO THE SUPERVISORY
 FOREMAN II EMPLOYEES WHO WILL CONTINUE TO BE EXCLUSIVELY REPRESENTED BY
 THE IBEW;  AND THAT IF A MAJORITY OF THE VOTING NONSUPERVISORY EMPLOYEES
 CHOOSE THE IBEW AS THEIR REPRESENTATIVE, THE EXISTING UNIT OF
 SUPERVISORY AND NONSUPERVISORY EMPLOYEES WILL CONTINUE, WHEREAS IF A
 MAJORITY OF THE VOTING NONSUPERVISORY EMPLOYEES CHOOSE NFFE AS THEIR
 EXCLUSIVE REPRESENTATIVE, SUCH EMPLOYEES WILL BE SEVERED FROM THE
 EXISTING UNIT AND NFFE WILL BE CERTIFIED AS THEIR EXCLUSIVE
 REPRESENTATIVE.  (NFFE WON THE ELECTION AND THEREAFTER WAS CERTIFIED AS
 THE EXCLUSIVE REPRESENTATIVE OF THE NONSUPERVISORY UNIT FOUND
 APPROPRIATE).
 
    IN THE APPEAL FILED ON BEHALF OF THE IBEW, IT IS ALLEGED THAT THE
 ASSISTANT SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS AND PRESENTS
 A MAJOR POLICY ISSUE.  IN THIS REGARD, IT IS ASSERTED THAT THE ASSISTANT
 SECRETARY SHOULD HAVE DISMISSED NFFE'S REPRESENTATION PETITION AFTER HE
 CORRECTLY RULED THAT FOREMAN II SUPERVISORS ARE APPROPRIATELY INCLUDED
 IN IBEW'S LONG-EXISTING UNIT BY VIRTUE OF THE SAVINGS PROVISIONS IN
 SECTION 24 OF THE ORDER.  IT IS FURTHER CONTENDED THAT THE ASSISTANT
 SECRETARY INCORRECTLY HELD THAT NFFE'S PETITION CONSTITUTED "AN
 APPROPRIATE ATTEMPT TO SEVER A UNIT OF NONSUPERVISORY EMPLOYEES FROM THE
 EXISTING . . . UNIT."
 
    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, IT DOES NOT APPEAR THAT THE
 DECISION OF THE ASSISTANT SECRETARY IS ARBITRARY AND CAPRICIOUS OR
 RAISES A MAJOR POLICY ISSUE.
 
    WITH RESPECT TO THE ALLEGATION THAT THE ASSISTANT SECRETARY'S
 DECISION IS ARBITRARY AND CAPRICIOUS, IT DOES NOT APPEAR THAT THE
 ASSISTANT SECRETARY ACTED WITHOUT REASONABLE JUSTIFICATION IN REACHING
 HIS DECISION IN THE CIRCUMSTANCES OF THIS CASE.  MOREOVER, IN THE
 AUTHORITY'S VIEW, NO MAJOR POLICY ISSUE IS PRESENTED WARRANTING REVIEW.
 YOUR APPEAL NEITHER ALLEGES NOR DOES IT APPEAR THAT THE ASSISTANT
 SECRETARY'S DECISION IS IN ANY MANNER INCONSISTENT WITH THE PURPOSES AND
 POLICIES OF THE ORDER, NOTING IN THIS REGARD THE ASSISTANT SECRETARY'S
 FINDING THAT A QUESTION CONCERNING REPRESENTATION EXISTS WITH RESPECT TO
 NONSUPERVISORY EMPLOYEES IN AN APPROPRIATE UNIT.
 
    SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
 AND CAPRICIOUS OR PRESENT 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 OF PROCEDURE.  /3/ ACCORDINGLY, THE
 PETITION FOR REVIEW IS HEREBY DENIED.  /4/
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
    CC:  H. JASCOURT
 
    INTERIOR
 
    J. EMERLING
 
    NFFE
 
    /1/ SECTION 24 OF THE ORDER PROVIDES:
 
    SEC. 24.  SAVINGS CLAUSES.  THIS ORDER DOES NOT PRECLUDE--
 
    (1) THE RENEWAL OR CONTINUATION OF A LAWFUL AGREEMENT BETWEEN AN
 AGENCY AND A
 
    REPRESENTATIVE OF ITS EMPLOYEES ENTERED INTO BEFORE THE EFFECTIVE
 DATE OF EXECUTIVE ORDER
 
    NO. 10988 (JANUARY 17, 1962);  OR
 
    (2) THE RENEWAL, CONTINUATION, OR INITIAL ACCORDING OF RECOGNITION
 FOR UNITS OF MANAGEMENT
 
    OFFICIALS OR SUPERVISORS REPRESENTED BY LABOR ORGANIZATIONS WHICH
 HISTORICALLY OR
 
    TRADITIONALLY REPRESENT THE MANAGEMENT OFFICIALS OR SUPERVISORS IN
 PRIVATE INDUSTRY AND WHICH
 
    HOLD EXCLUSIVE RECOGNITION FOR UNITS OF SUCH OFFICIALS OR SUPERVISORS
 IN ANY AGENCY ON THE
 
    DATE OF THIS ORDER.
 
    /2/ IN THIS REGARD, THE ASSISTANT SECRETARY CITED AND RELIED UPON THE
 FEDERAL LABOR RELATIONS COUNCIL'S INTERPRETATION OF THE ORDER, FLRC NO.
 78P-2 (AUG. 9, 1978), REPORT NO. 154.
 
    /3/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
 BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
 APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE RESULT WHICH
 WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
 STATUTE RATHER THAN THE ORDER.
 
    /4/ MEMBER LEON B. APPLEWHAITE DID NOT PARTICIPATE IN THE PRESENT
 CASE, WHICH HAD BEEN PROCESSED PRIOR TO HIS CONFIRMATION BY THE UNITED
 STATES SENATE AS A MEMBER OF THE AUTHORITY.
 
 
 

---