Social Security Administration, Bureau of Hearings and Appeals and American Federation of Government Employees, Local 3615 (Authority decision, April 9, 1979)

Final FLRA decision under Executive Order 11491. The Authority denied review of a prehearing complaint dismissal in this transferred case. The decision says it applies Executive Order 11491 rather than the later federal labor relations statute and does not address judicial review.

Plain-English summary

AFGE Local 3615 said a Social Security office breached an earlier settlement when it refused to promise that a union officer would never be assigned as an acting supervisor during his term. The Regional Administrator found no reasonable basis for a complaint: the settlement did not promise a blanket exemption, and the officer was not required to serve as an acting supervisor. The Assistant Secretary agreed. The union sought further review, but the Authority found no arbitrary ruling or major policy issue and denied its petition. The matter ended without a hearing on the complaint.

Decision snapshot

• Authority: Executive Order 11491, § 19(a)(1), (6); 5 U.S.C. § 7135(b).
• Outcome: Review denied; prehearing dismissal of complaint stands.
• Key point: The record did not establish that the earlier settlement guaranteed union officers a term-long exemption from acting supervisory duties.

Full text (FLRA public release)

[ v01 p156 ]

01:0156(18)CA

The decision of the Authority follows:

1 FLRA No. 18
APRIL 9, 1979

MR. ALBERT B. CORROZZA
LOCAL 3615, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
BUREAU OF HEARINGS AND APPEALS
SOCIAL SECURITY ADMINISTRATION
P. O. BOX 147
ARLINGTON, VIRGINIA 22210

RE: SOCIAL SECURITY ADMINISTRATION, BUREAU
OF HEARINGS AND APPEALS, WASHINGTON, D.C.,
ASSISTANT SECRETARY Case No. 22-08859(CA),
FLRC No. 78A-158

DEAR MR. CORROZZA:

THE AUTHORITY HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF
THE ASSISTANT SECRETARY'S DECISION, AND THE AGENCY'S OPPOSITION THERETO,
IN THE ABOVE-ENTITLED CASE.

IN THIS CASE, THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 3615 (THE UNION) FILED AN UNFAIR LABOR PRACTICE COMPLAINT
ALLEGING THAT THE SOCIAL SECURITY ADMINISTRATION, BUREAU OF HEARINGS AND
APPEALS, WASHINGTON, D.C. (THE ACTIVITY) HAD VIOLATED SECTION 19(A)(1)
AND (6) OF THE ORDER BY DENYING A UNION REQUEST THAT A RECENTLY-ELECTED
UNION OFFICER BE GRANTED AN EXEMPTION FROM SERVING AS AN ACTING
SUPERVISOR DURING HIS TERM OF OFFICE. THE UNION ASSERTED THAT THIS
DENIAL VIOLATED A SETTLEMENT AGREEMENT REACHED IN A PRIOR UNFAIR LABOR
PRACTICE PROCEEDING AND CONSTITUTED A UNILATERAL CHANGE IN PERSONNEL
POLICIES AND PROCEDURES WHICH WERE ESTABLISHED PURSUANT TO THE
SETTLEMENT AGREEMENT.

AS FOUND BY THE REGIONAL ADMINISTRATOR (RA), IN ACCORDANCE WITH THE
SETTLEMENT AGREEMENT IN A PREVIOUS UNFAIR LABOR PRACTICE PROCEEDING, THE
ACTIVITY ISSUED A POLICY GUIDELINE WHICH PROVIDED:

IF, IN THE NORMAL COURSE OF BUSINESS, A UNION OFFICIAL OR BARGAINING
UNIT MEMBER IS IN A

POSITION TO BE PROPERLY DESIGNATED ACTING SUPERVISOR, THAT INDIVIDUAL
MAY NOT BE DENIED THE

OPPORTUNITY ON THE GROUNDS OF HIS OR HER UNION ACTIVITIES. AT THE
SAME TIME, THE EXECUTIVE

ORDER REQUIRES THAT THE INDIVIDUAL CEASE TO PERFORM OFFICIAL UNION
DUTIES WHILE ACTING AS

SUPERVISOR. WHETHER THIS IS FOR A BRIEF OR EXTENDED PERIOD, THE
EMPLOYEE IN THIS SITUATION

MUST CHOOSE BETWEEN ONE SET OF RESPONSIBILITIES OR THE OTHER. IF HE
OR SHE ACCEPTS THE

DESIGNATION OF ACTING SUPERVISOR, THEN HE/SHE MUST REFRAIN FROM ALL
ACTIVITIES ON BEHALF OF

THE UNION.

AFTER THE GUIDELINE HAD BEEN ISSUED, A SUPERVISOR DESIGNATED A
NEWLY-ELECTED UNION OFFICER AS AN ACTING SUPERVISOR FOR A THREE-DAY
PERIOD. THE UNION OFFICER REQUESTED THAT HE BE EXCUSED FROM THE
ASSIGNMENT, BUT THE SUPERVISOR ORALLY DENIED THE REQUEST. THE UNION
PRESIDENT ADDRESSED A MEMORANDUM TO THE SUPERVISOR REQUESTING THAT THE
UNION OFFICER BE GRANTED A CONTINUING EXEMPTION FROM ACTING AS A
SUPERVISOR DURING HIS TENURE AS A UNION OFFICER. IN RESPONSE, THE
SUPERVISOR RESCINDED THE DESIGNATION, BUT STATED THAT GRANTING THE
BLANKET EXEMPTION SOUGHT BY THE UNION WOULD BE CONTRARY TO THE
SETTLEMENT AGREEMENT. NEVERTHELESS, THE UNION OFFICER WAS NEITHER ASKED
NOR COMPELLED TO SERVE AS AN ACTING SUPERVISOR DURING HIS TERM OF
OFFICE.

THE RA CONCLUDED THAT NO REASONABLE BASIS FOR THE COMPLAINT HAD BEEN
ESTABLISHED. IN SO CONCLUDING HE STATED:

SINCE THERE IS NO EVIDENCE THAT (THE ACTIVITY) EVER AGREED TO GRANT
THE TYPE OF BLANKET

WAIVER SOUGHT BY (THE UNION) . . . IT CAN HARDLY BE CONCLUDED THAT
(THE ACTIVITY) VIOLATED THE

SETTLEMENT AGREEMENT BY DENYING THE REQUEST.

MOREOVER, THE RA FOUND NO EVIDENCE THAT A PAST PRACTICE EVER EVER
EXISTED WHEREBY UNION OFFICERS COULD OBTAIN A CONTINUING EXEMPTION FROM
ACTING SUPERVISORY DUTIES FOR THEIR ENTIRE TERM OF UNION OFFICE.
THEREFORE, HE CONCLUDED THAT THE ACTIVITY'S DENIAL OF THE REQUEST FOR A
BLANKET EXEMPTION DID NOT CONSTITUTE A UNILATERAL CHANGE IN AN
ESTABLISHED PERSONNEL POLICY OR PRACTICE.

THE ASSISTANT SECRETARY DENIED THE UNION'S REQUEST FOR REVIEW SEEKING
REVERSAL OF THE RA'S DISMISSAL OF THE COMPLAINT, STATING IN PERTINENT
PART:

IN AGREEMENT WITH THE (RA), I FIND THAT THE EVIDENCE HEREIN IS
INSUFFICIENT TO ESTABLISH A

REASONABLE BASIS FOR THE INSTANT COMPLAINT AND THAT, CONSEQUENTLY,
FURTHER PROCEEDINGS IN THIS

MATTER ARE UNWARRANTED, THUS, IN THE CIRCUMSTANCES OF THIS CASE, I
FIND THAT THE (ACTIVITY'S)

ACTIONS DID NOT CONSTITUTE A PATENT BREACH OF THE PARTIES' PRIOR
SETTLEMENT AGREEMENT, AS THE

LANGUAGE OF THE AGREEMENT ARGUABLY WAS SUSCEPTIBLE OF VARYING
INTERPRETATIONS.

IN YOUR PETITION FOR REVIEW ON BEHALF OF THE UNION, YOU ALLEGE THAT
THE ASSISTANT SECRETARY WAS ARBITRARY AND CAPRICIOUS IN DENYING A
HEARING ". . . BECAUSE THERE WAS SUBSTANTIAL EVIDENCE THAT THE
(A)CTIVITY INTENTIONALLY BREACHED A FORMER UNFAIR LABOR PRACTICE (ULP)
SETTLEMENT TO THE DETRIMENT OF (A) UNION OFFICER." YOU FURTHER ALLEGE
THAT A MAJOR POLICY ISSUE IS PRESENTED IN THAT "THE ASSISTANT
SECRETARY'S CAPRICIOUS DENIAL WILL PERMIT FEDERAL AGENCIES TO BREACH ULP
SETTLEMENTS AND DEFEAT THE PURPOSE OF THE ORDER."

IN THE AUTHORITY'S OPINION, YOUR 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.

AS TO YOUR ALLEGATION THAT THE ASSISTANT SECRETARY'S DENIAL OF A
HEARING WAS 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. RATHER, YOUR ASSERTION
THAT THERE WAS SUBSTANTIAL EVIDENCE THAT THE ACTIVITY INTENTIONALLY
BREACHED A PRIOR UNFAIR LABOR PRACTICE SETTLEMENT CONSTITUTES, IN
ESSENCE, NOTHING MORE THAN MERE DISAGREEMENT WITH THE ASSISTANT
SECRETARY'S DETERMINATION, PURSUANT TO HIS REGULATIONS, THAT THERE WAS
INSUFFICIENT EVIDENCE TO ESTABLISH A REASONABLE BASIS FOR THE COMPLAINT,
AND THEREFORE PROVIDES NO BASIS FOR REVIEW. NOR IS A MAJOR POLICY ISSUE
PRESENTED, AS ALLEGED, WITH REGARD TO WHETHER THE ASSISTANT SECRETARY'S
DECISION WILL PERMIT FEDERAL AGENCIES TO BREACH UNFAIR LABOR PRACTICE
SETTLEMENT AGREEMENTS. THUS, IN OUR VIEW, SUCH ALLEGED MAJOR POLICY
ISSUE AGAIN CONSTITUTES NOTHING MORE THAN MERE DISAGREEMENT WITH THE
ASSISTANT SECRETARY'S FINDING THAT NO REASONABLE BASIS FOR THE COMPLAINT
HAD BEEN ESTABLISHED IN THE CIRCUMSTANCES OF THIS CASE, BUT RATHER THAT
THE ACTIVITY'S CONDUCT "DID NOT CONSTITUTE A PATENT BREACH OF THE
PARTIES' PRIOR SETTLEMENT AGREEMENT, AS THE LANGUAGE OF THE AGREEMENT
ARGUABLY WAS SUSCEPTIBLE OF VARYING INTERPRETATIONS."

SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS OR PRESENT ANY MAJOR POLICY ISSUES, YOUR APPEAL FAILS TO
MEET THE REQUIREMENTS FOR REVIEW AS SET FORTH IN SECTION 2400.2 OF THE
AUTHORITY'S TRANSITION RULES OF PROCEDURE WHICH INCORPORATES BY
REFERENCE SECTION 2411.12 OF THE COUNCIL'S RULES. ACCORDINGLY, YOUR
PETITION FOR REVIEW IS HEREBY DENIED. /1/

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

CC: I. BECKER

SSA

/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL
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.