Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio and American Federation of Government Employees (Authority decision, June 11, 1979)

Final FLRA decision under Executive Order 11491. The Authority denied review of the Assistant Secretary's dismissal of this transferred unfair labor practice complaint. 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

After AFGE was certified for a consolidated Air Force Logistics Command unit, the command issued a memo on procedures for negotiating changes in working conditions. The union alleged that the memo unilaterally established bargaining procedures. The Regional Administrator dismissed the complaint, and the Assistant Secretary found no reasonable basis to proceed because the union had not shown an actual change in conditions. The Authority denied review, finding no arbitrary decision or major policy issue. The Regional Administrator's and Assistant Secretary's dismissal remained in place.

Decision snapshot

• Authority: Executive Order 11491, § 19(a)(1) and (6); FLRA transition rule § 2400.2.
• Outcome: The complaint dismissal stood; the union's petition for review was denied.
• Key point: The union had not shown that the memo changed a working condition or breached an obligation.

Full text (FLRA public release)

[ v01 p427 ]

01:0427(52)CA

The decision of the Authority follows:

1 FLRA No. 52

MS. MARY LYNN WALKER
ACTING DIRECTOR
CONTRACT AND APPEALS DIVISION
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
1325 MASSACHUSETTS AVENUE, N.W.
WASHINGTON, D.C. 20005

RE: AIR FORCE LOGISTICS COMMAND, DEPARTMENT
OF THE AIR FORCE, WRIGHT-PATTERSON AIR
FORCE BASE, OHIO, ASSISTANT SECRETARY
Case No. 53-10541(CA), FLRC No. 78A-167

DEAR MS. WALKER:

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

IN THIS CASE, THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO (THE UNION) FILED AN UNFAIR LABOR PRACTICE COMPLAINT AGAINST AIR
FORCE LOGISTICS COMMAND, DEPARTMENT OF THE AIR FORCE, WRIGHT-PATTERSON
AIR FORCE BASE, OHIO (AFLC). THE COMPLAINT ALLEGED THAT AFLC VIOLATED
SECTION 19(A)(1) AND (6) OF THE ORDER BY ISSUING A MEMORANDUM, ON THE
DAY FOLLOWING THE UNION'S CERTIFICATION AS THE EXCLUSIVE BARGAINING
REPRESENTATIVE OF A CONSOLIDATED COMMAND-WIDE UNIT, WHICH SET FORTH
"UNILATERALLY ESTABLISHED PROCEDURES FOR NEGOTIATING CHANGES IN
PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING
CONDITIONS WITHOUT GIVING DUE REGARD TO THE OBLIGATION TO NEGOTIATE WITH
THE CERTIFIED BARGAINING AGENT."

THE REGIONAL ADMINISTRATOR (RA) FOUND, IN PERTINENT PART, THAT THE
UNION HAD FAILED TO MEET ITS BURDEN OF PROOF THAT A REASONABLE BASIS FOR
THE COMPLAINT HAD BEEN ESTABLISHED. ACCORDINGLY, HE DISMISSED THE
UNION'S COMPLAINT. THE ASSISTANT SECRETARY, IN AGREEMENT WITH THE RA,
FOUND THAT FURTHER PROCEEDINGS WERE UNWARRANTED AS A REASONABLE BASIS
FOR THE ALLEGATIONS CONTAINED IN THE COMPLAINT HAD NOT BEEN ESTABLISHED.
THE ASSISTANT SECRETARY NOTED PARTICULARLY " . . . THAT THE (UNION) HAS
NOT SHOWN HOW THE (AFLC), IN FACT, CHANGED ANY WORKING CONDITIONS, AND
DID NOT ALLEGE THAT IT FAILED TO MEET ANY SPECIFIC CONTRACTUAL
OBLIGATIONS." ACCORDINGLY, HE DENIED THE UNION'S REQUEST FOR REVIEW
SEEKING REVERSAL OF THE RA'S DISMISSAL OF THE COMPLAINT.

IN THE UNION'S PETITION FOR REVIEW, IT IS CONTENDED, IN ESSENCE, THAT
THE ASSISTANT SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS IN THAT:
(1) THE AFLC MEMO UNILATERALLY ESTABLISHED NEW PERSONNEL POLICIES AND
PRACTICES, THEREBY ESTABLISHING A REASONABLE BASIS FOR THE UNION'S
COMPLAINT; (2) THE ASSISTANT SECRETARY IMPROPERLY RELIED ON THE FACT
THAT THE UNION DID NOT ALLEGE THAT AFLC FAILED TO MEET ANY SPECIFIC
CONTRACTUAL OBLIGATIONS, SINCE THE BARGAINING RIGHTS IN ISSUE WERE
PROTECTED BY THE ORDER ITSELF AND DID NOT REQUIRE THE EXISTENCE OF AN
AGREEMENT COVERING THE NEWLY CERTIFIED CONSOLIDATED UNIT; AND (3) THE
ASSISTANT SECRETARY'S INVESTIGATIVE EFFORT TO DETERMINE THE VALIDITY OF
THE UNION'S COMPLAINT WAS "MINIMAL AND FAULTY."

IN THE AUTHORITY'S OPINION, THE PETITION FOR REVIEW DOES NOT MEET THE
REQUIREMENTS OF SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES WHICH
INCORPORATES BY REFERENCE SECTION 2411.12 OF THE COUNCIL'S RULES. THAT
IS, IT DOES NOT APPEAR THAT THE DECISION OF THE ASSISTANT SECRETARY WAS
ARBITRARY AND CAPRICIOUS AND IT NEITHER IS ALLEGED, NOR DOES IT
OTHERWISE APPEAR, THAT HIS DECISION RAISES A MAJOR POLICY ISSUE.

AS TO THE CONTENTION THAT THE ASSISTANT SECRETARY'S DECISION IS
ARBITRARY AND CAPRICIOUS, IT DOES NOT APPEAR THAT THE ASSISTANT
SECRETARY ACTED WITHOUT REASONABLE JUSTIFICATION IN REACHING HIS
DECISION. RATHER, THE FOREGOING ASSERTIONS CONSTITUTE ESSENTIALLY MERE
DISAGREEMENT WITH THE ASSISTANT SECRETARY'S FINDING, PURSUANT TO HIS
REGULATIONS, THAT NO REASONABLE BASIS FOR THE ALLEGATIONS CONTAINED IN
THE COMPLAINT HAD BEEN ESTABLISHED. IN THIS REGARD THE AUTHORITY NOTES
PARTICULARLY THE ASSISTANT SECRETARY'S FINDING " . . . THAT THE (UNION)
HAS NOT SHOWN HOW THE (AFLC), IN FACT, CHANGED ANY WORKING CONDITIONS
(OR) FAILED TO MEET ANY SPECIFIC CONTRACTUAL OBLIGATIONS." ACCORDINGLY,
NO BASIS FOR REVIEW IS THEREBY PRESENTED.

SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CARICIOUS AND IT NEITHER IS ALLEGED, NOR DOES IT APPEAR, THAT HIS
DECISION PRESENTS A MAJOR POLICY ISSUE, THE APPEAL FAILS TO MEET THE
REQUIREMENTS FOR REVIEW AS SET FORTH IN SECTION 2400.2 OF THE
AUTHORITY'S TRANSITION RULES WHICH INCORPORATES BY REFERENCE SECTION
2411.12 OF THE COUNCIL'S RULES OF PROCEDURE. ACCORDINGLY, THE PETITION
FOR REVIEW IS HEREBY DENIED. /1/

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

CC: R. T. MCLEAN

AIR FORCE

/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE RESULT WHICH
WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
STATUTE RATHER THAN THE ORDER.