Department of Agriculture, Forest Service, Siuslaw National Forest, Corvallis, Oregon (Activity) and National Federation of Federal Employees, Local 454 (Applicant) (Authority decision, May 28, 1980)

Final FLRA decision. The Authority determined which grievances may proceed to arbitration; timeliness and merits issues remain for the arbitrator.

Plain-English summary

A Forest Service union sought arbitration of several grievances. The administrative law judge found grievance No. 2 barred because its issue had already been raised in an unfair labor practice complaint, but found the others arbitrable. The Authority adopted that ruling and left timeliness and merits questions on the other grievances for the arbitrator.

Decision snapshot

• Authority: 5 U.S.C. § 7135(b).
• Outcome: Judge's ruling affirmed; grievance No. 2 barred and the others may proceed to arbitration.
• Key point: The election of remedies rule barred one grievance, while other disputes remained pending.

Full text (FLRA public release)

[ v03 p272 ]

03:0272(42)GA

The decision of the Authority follows:

3 FLRA No. 42

DEPARTMENT OF AGRICULTURE
U.S. FOREST SERVICE
SIUSLAW NATIONAL FOREST
CORVALLIS, OREGON
Activity

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 454
Applicant

Assistant Secretary
Case No. 71-5004(GA)

DECISION AND ORDER

ON SEPTEMBER 10, 1979, THE ADMINISTRATIVE LAW JUDGE ISSUED HIS
RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING
THAT THE ISSUE RAISED IN GRIEVANCE NO. 2 WAS PREVIOUSLY RAISED IN AN
UNFAIR LABOR PRACTICE COMPLAINT AND THUS SECTION 19(D) OF THE ORDER
BARRED SUCH GRIEVANCE FROM CONSIDERATION UNDER THE GRIEVANCE/ARBITRATION
PROCEDURE OF THE PARTIES NEGOTIATED AGREEMENT. HE CONCLUDED AS WELL
THAT ALL THE OTHER GRIEVANCES WERE ARBITRABLE UNDER THE PARTIES'
NEGOTIATED AGREEMENT, AND THAT THE ARBITRATOR SHOULD DECIDE, AS A
THRESHOLD QUESTION, WHETHER THESE GRIEVANCES WERE TIMELY FILED WITHIN
THE MEANING OF THE AGREEMENT. THUS, HE CONCLUDED THAT ALL GRIEVANCES
EXCEPT NO. 2 BE FOUND TO BE SUBJECT TO THE ARBITRATION PROCEDURE SET
FORTH IN THE PARTIES' NEGOTIATED AGREEMENT. NO EXCEPTIONS WERE FILED TO
THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.

THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION
PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
(45 F.R. 3482, JANUARY 17, 1980). THE AUTHORITY CONTINUES TO BE
RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN
SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT STATUTE (92
STAT. 1215).

THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE
HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT
CASE, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S
FINDINGS, CONCLUSIONS AND RECOMMENDATION. /1/

ORDER

IT IS HEREBY ORDERED THAT ALL GRIEVANCES EXCEPT NO. 2 ARE SUBJECT TO
THE ARBITRATION PROCEDURE SET FORTH IN THE PARTIES NEGOTIATED AGREEMENT.

ISSUED, WASHINGTON, D.C., MAY 28, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON W. APPLEWHAITE, MEMBER

WILLIAM J. DUGGAN

EMPLOYEE RELATIONS SPECIALIST

U.S. FOREST SERVICE

P. O. BOX 3623

PORTLAND, OREGON 97208

FOR THE ACTIVITY

P. J. HEATH

PRESIDENT, LOCAL 454

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

P. O. BOX 726

CORVALLIS, OREGON 97330

FOR THE APPLICANT

CATHERINE WAELDER, ESQUIRE

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

1016 16TH STREET, N.W.

WASHINGTON, D.C. 20036

(ON THE BRIEF)

BEFORE: GARVIN LEE OLIVER

ADMINISTRATIVE LAW JUDGE

RECOMMENDED DECISION AND ORDER

THIS IS A PROCEEDING ON AN APPLICATION FOR DECISION ON GRIEVABILITY
OR ARBITRABILITY FILED PURSUANT TO SECTION 13(D) OF EXECUTIVE ORDER
11491, AS AMENDED, AND 29 C.F.R.PART 205(1975) BY THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCAL 454 (APPLICANT) CHALLENGING A
DETERMINATION BY THE DEPARTMENT OF AGRICULTURE, U.S. FOREST SERVICE,
SIUSLAW NATIONAL FOREST, CORVALLIS, OREGON (ACTIVITY) THAT SEVEN
GRIEVANCES FILED BY THE APPLICANT WERE NOT ARBITRABLE UNDER THE PARTIES'
NEGOTIATED AGREEMENT.

PURSUANT TO A NOTICE OF HEARING ISSUED BY THE REGIONAL DIRECTOR,
FEDERAL LABOR RELATIONS AUTHORITY, REGION 9, SAN FRANCISCO, CALIFORNIA,
A HEARING ON THE APPLICATION WAS CONDUCTED AT CORVALLIS, OREGON. THE
PARTIES WERE REPRESENTED AND AFFORDED FULL OPPORTUNITY TO BE HEARD,
ADDUCE RELEVANT EVIDENCE, EXAMINE AND CROSS-EXAMINE WITNESSES, AND
PRESENT ORAL ARGUMENT, AND BRIEFS.

BASED ON THE ENTIRE RECORD, INCLUDING THE EXHIBITS AND OTHER RELEVANT
EVIDENCE ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS, AND RECOMMENDATIONS.

FINDINGS OF FACT AND CONCLUSIONS

1. THE APPLICANT AND THE ACTIVITY WERE PARTIES TO A NEGOTIATED
   AGREEMENT, EFFECTIVE JULY 7, 1976 FOR A TERM OF TWO YEARS, WHICH WAS IN
   EFFECT AT ALL MATERIAL TIMES HEREIN.

2. ARTICLE 8.1 OF THE AGREEMENT PROVIDED THAT, "A GRIEVANCE MAY BE
   UNDERTAKEN BY THE LOCAL, AN EMPLOYEE, OR A GROUP OF EMPLOYEES OVER THE
   INTERPRETATION, APPLICATION, OR VIOLATION OF ANY MATTER WHICH IS
   CONTAINED WITHIN THIS AGREEMENT OR WITHIN PUBLISHED AGENCY PERSONNEL
   POLICY; WORKING CONDITIONS AND WORKING ENVIRONMENT; OR RELATIONSHIPS
   WITH AGENCY SUPERVISORS AND OFFICIALS.

3. ARTICLE 8.1(A) PROVIDED THAT THE "GRIEVANCE PROCEDURE DOES NOT
   APPLY TO CASES INVOLVING DISCRIMINATION COMPLAINTS, CLASSIFICATION
   APPEALS, ADVERSE ACTIONS, REDUCTIONS-IN-FORCE, OR OTHER SITUATIONS FOR
   WHICH ALTERNATIVE APPEALS PROCEDURES ARE ESTABLISHED BY LAW OR
   REGULATION."

4. ARTICLE 8.1(B) PROVIDED THAT "THE EMPLOYEE SHALL ATTEMPT TO
   RESOLVE THE GRIEVANCE DIRECTLY WITH HIS OR HER IMMEDIATE SUPERVISOR
   WITHIN FIFTEEN (15) WORKING DAYS OF THE ALLEGED INCIDENT OR PROBLEM ON
   WHICH THE GRIEVANCE IS BASED."

5. ARTICLE 8.2 PROVIDED THAT, "FAILURE OF THE EMPLOYEE TO MEET THE
   TIME LIMITS SPECIFIED AT EACH STEP WITHOUT REASONABLE JUSTIFICATION
   ENTITLES THE EMPLOYER TO REFUSE TO CONSIDER THE GRIEVANCE. ALL TIME
   LIMITS MAY BE EXTENDED BY MUTUAL AGREEMENT BETWEEN THE GRIEVANT AND THE
   EMPLOYER."

6. ARTICLE 8.1(C) PROVIDED THAT, "IF NOT SATISFIED WITH THE CHIEF'S
   DECISION, THE EMPLOYEE MAY ELECT TO SUBMIT THE GRIEVANCE TO ARBITRATION
   FOLLOWING THE PROCEDURES IN ARTICLE IX."

7. ARTICLE 9.1 PROVIDED THAT, "ARBITRATION CONSISTENT WITH
   APPLICABLE REGULATIONS IS AN ACCEPTABLE CHANNEL FOR SETTLING DISPUTES
   RELATIVE TO INTERPRETATION OR APPLICATION OF THIS AGREEMENT."

8. THIS MATTER AROSE AS A RESULT OF THE TERMINATION OF UNIT EMPLOYEE
   WILLIAM FRIDAY EFFECTIVE FEBRUARY 21, 1978, AS ORDERED BY LETTER OF THE
   EMPLOYMENT OFFICER DATED FEBRUARY 15, 1978. (COMPLAINANT'S EX. C-4).

9. AN EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT RELATING TO MR.
   FRIDAY'S DISCHARGE WAS INITIATED IN APRIL 1978. (RESPONDENT'S EX. 14).
   A HEARING HAS BEEN REQUESTED ON THE COMPLAINT. (RESPONDENT'S EX. 19).

10. ON MAY 10, 1978 AN APPEAL PURSUANT TO PART 752, SUBPART B OF THE
    CIVIL SERVICE REGULATIONS WAS SUBMITTED TO THE FEDERAL EMPLOYEE APPEALS
    AUTHORITY (FEAA) ON BEHALF OF MR. FRIDAY RELATING TO THE REMOVAL ACTION.
    ON JUNE 29, 1978 THE SEATTLE FIELD OFFICE OF THE FEAA DETERMINED THAT
    MR. FRIDAY, AS AN EXCEPTED SERVICE APPOINTEE WITH LESS THAN ONE YEAR OF
    CURRENT CONTINUOUS EMPLOYMENT, DID NOT HAVE A RIGHT OF APPEAL.
    (RESPONDENT'S EX. 13).

11. ON MAY 22, 1978 THE APPLICANT FILED AN UNFAIR LABOR PRACTICE
    CHARGE UPON THE ACTIVITY WHICH SUBSEQUENTLY BECAME ASSISTANT SECRETARY
    CASE NO. 71-4744(CA). THE CHARGE ALLEGED THAT THE ACTIVITY
    "UNILATERALLY MADE A LIST OF RULES REGARDING OPERATIONS AT THE YACC CAMP
    AT GARDINER, OREGON WITHOUT CONSULTING THE LOCAL, WHICH HAS EXCLUSIVE
    RECOGNITION." (COMPLAINANT'S EXHIBIT C-14).

12. THE APPLICANT FILED SIX GRIEVANCES ON MAY 23, 1978 ON BEHALF OF
    MR. FRIDAY. (RESPONDENT'S EXHIBIT 3). THE GRIEVANCES ALLEGE:

13. MANAGEMENT FAILED TO FOLLOW PROPER PROCEDURES IN THE DISMISSAL OF
    THE EMPLOYEE.

14. RULES WERE CITED IN THE TERMINATION LETTER OF FEBRUARY 15, BUT
    SAID RULES WERE INVALID

IN THAT THEY HAD NOT BEEN NEGOTIATED WITH THE LOCAL. THIS GRIEVANCE
IS CONCERNED WITH THE

CITING OF INVALID RULES.

3. THE ABOVE LETTER CITED THAT HE HAD PROBLEMS WITH HIS SUPERVISOR,
   WHICH IS NOT VERIFIED

BY HIS SUPERVISOR. IN FACT, HIS SUPERVISOR WAS NOT EVEN AWARE OF MR.
FRIDAY'S TERMINATION

UNTIL AFTER THE FACT.

4. THE LETTER CITED SAID THAT MR. FRIDAY USED IMPROPER METHODS OF
   PROBLEM RESOLUTION.

5. MR. STUMP FAILED TO USE PROPER METHODS OF PROBLEM RESOLUTION, IN
   THAT HE FAILED TO

CONSULT WITH MR. FRIDAY'S SUPERVISOR.

6. YOU FAILED TO NOTIFY THE LOCAL OF THE NAME, POSITION, AND DUTY
   STATION OF NEW

EMPLOYEES. ARTICLE XIII OF THE AGREEMENT.

13. ON MAY 26, 1978 THE FOREST SUPERVISOR REFUSED TO CONSIDER THE
    GRIEVANCES ON THE GROUNDS THAT THE TIME LIMITS HAD NOT BEEN MET.
    (RESPONDENT'S EXHIBIT 4).

14. ON MAY 26, 1978 THE APPELLANT, BY MR. GUMP, URGED THE FOREST
    SUPERVISOR TO CONSIDER THE GRIEVANCES, ALLEGING, IN PART, THAT THE LAST
    LETTER CONTAINING INFORMATION NEEDED TO PURSUE THESE GRIEVANCES WAS NOT
    RECEIVED UNTIL AFTER MAY 13. (COMPLAINANT'S EXHIBIT 7).

15. ON MAY 31, 1978 THE APPLICANT FILED A SEVENTH GRIEVANCE WHICH
    ALLEGED:

YOU HAVE FAILED TO INSURE THAT THE EMPLOYEES ARE APPRISED OF THEIR
RIGHTS IN THE AGREEMENT,

AS AGREED TO IN ARTICLE III, PARAGRAPH 3.3, RIGHTS OF EMPLOYEES.
(COMPLAINANT'S EX. 8).

THIS GRIEVANCE WAS CLARIFIED ON JUNE 8, 1978 AS "BASED UPON YOUR
FAILURE TO INFORM MR. FRIDAY OF HIS RIGHTS UNDER THE AGREEMENT, ARTICLE
III, 3.3." (RESPONDENT'S EX. 6). THE APPLICANT ALLEGED THAT IT FIRST
LEARNED OF THE ALLEGED FAILURE AS A RESULT OF THE ACTIVITY'S LETTER ON
MAY 26, 1978. (COMPLAINANT'S EXHIBIT 8).

16. THE FOREST SUPERVISOR ALSO REFUSED TO CONSIDER THE SEVENTH
    GRIEVANCE ON THE GROUNDS THAT IT WAS NOT INITIATED WITHIN 15 DAYS OF THE
    INCIDENT. (RESPONDENT'S EXHIBIT 8).

17. IN ADVANCING THE GRIEVANCES TO THE REGIONAL FORESTER (STEP 1),
    THE APPLICANT OFFERED REASONS FOR THE DELAY IN INITIATING THE GRIEVANCES
    AND WHY THEY SHOULD BE CONSIDERED UNDER THE AGREEMENT. (COMPLAINANT'S
    EXHIBIT 10). ALL LEVELS OF GRIEVANCE REVIEW WERE EXHAUSTED.

18. ON OCTOBER 2, 1978 THE APPLICANT INVOKED ARBITRATION. THE
    ACTIVITY REJECTED ARBITRATION ON THE GROUNDS THAT THE GRIEVANCES WERE
    NOT FILED IN A TIMELY MANNER AS REQUIRED BY THE NEGOTIATED GRIEVANCE
    PROCEDURE; THE GRIEVANCES WERE NON-SPECIFIED; AND DUPLICATED IN PART
    BY A DISCRIMINATION COMPLAINT AND AN UNFAIR LABOR PRACTICE COMPLAINT.
    (RESPONDENT'S EXHIBIT 12; COMPLAINANT'S EXHIBIT 12).

THERE IS CONSIDERABLE ADDITIONAL EVIDENCE IN THE RECORD. HOWEVER, IN
VIEW OF MY ANALYSIS OF THE FACTS AND THE LAW GOVERNING THE BASIS ISSUE
IN THIS CASE, I DEEM SUCH EVIDENCE IRRELEVANT TO THE PROPER
DETERMINATION OF THE APPLICATION.

DISCUSSION, CONCLUSIONS, AND RECOMMENDATIONS

THE FEDERAL LABOR RELATIONS COUNCIL HAS OUTLINED THE SCOPE OF
RESPONSIBILITY FOR DETERMINING ARBITRABILITY DISPUTES UNDER SECTIONS
6(A)(5) AND 13(D) OF EXECUTIVE ORDER 11491, AS AMENDED, IN DEPARTMENT OF
THE NAVY, NAVAL AMMUNITION DEPOT, CRANE, INDIANA, FLRC NO. 74A-19(1975)
AND COMMUNITY SERVICES ADMINISTRATION, 5 FLRC 727, FLRC NO.
76A-149(1977). IN CRANE THE COUNCIL STATED:

IN ANY DISPUTE REFERRED TO THE ASSISTANT SECRETARY CONCERNING WHETHER
A GRIEVANCE IS ON A

MATTER SUBJECT TO THE NEGOTIATED GRIEVANCE PROCEDURE, THE ASSISTANT
SECRETARY MUST DECIDE

WHETHER THE DISPUTE IS OR IS NOT SUBJECT TO THE NEGOTIATED GRIEVANCE
PROCEDURE, JUST AS AN

ARBITRATOR WOULD IF THE QUESTION WERE REFERRED TO HIM. IN MAKING
SUCH A DETERMINATION, THE

ASSISTANT SECRETARY MUST CONSIDER RELEVANT PROVISIONS OF THE
NEGOTIATED AGREEMENT, INCLUDING

THOSE PROVISIONS WHICH DESCRIBE THE SCOPE AND COVERAGE OF THE
NEGOTIATED GRIEVANCE PROCEDURE,

AS WELL AS ANY SUBSTANTIVE PROVISIONS OF THE AGREEMENT WHICH ARE
BEING GRIEVED. (COUNCIL

DECISION AT 4.)

IN COMMUNITY SERVICES ADMINISTRATION THE COUNCIL NOTED THAT SECTION
13(D) OF THE ORDER DOES NOT REQUIRE THE ASSISTANT SECRETARY TO INTERPRET
AND APPLY PROVISIONS OF THE NEGOTIATED AGREEMENT. INDEED, SUCH ACTION
IS INCONSISTENT WITH THE PURPOSES AND POLICIES OF THE ORDER. IN
CLARIFYING ITS APPARENTLY CONTRARY HOLDING IN CRANE, THE COUNCIL STATED:

IN DECIDING WHETHER A DISPUTE IS OR IS NOT SUBJECT TO A PARTICULAR
NEGOTIATED GRIEVANCE

PROCEDURE, IT IS THE RESPONSIBILITY OF THE ASSISTANT SECRETARY TO
CONSIDER THOSE "PROVISIONS

WHICH DESCRIBE THE SCOPE AND COVERAGE OF THE NEGOTIATED GRIEVANCE
PROCEDURE," I.E., THE

GENERAL SCOPE OF SUCH PROCEDURE AS WELL AS ANY SPECIFIC EXCLUSIONS
THEREIN. THAT IS, HE MUST

DECIDE, JUST AS AN ARBITRATOR WOULD DECIDE AT THE OUTSET IN THE
FEDERAL SECTOR . . . WHETHER

THE GRIEVANCE INVOLVES A DISPUTE WHICH THE PARTIES INTENDED TO BE
RESOLVED THROUGH THEIR

NEGOTIATED GRIEVANCE PROCEDURE. THE ASSISTANT SECRETARY'S
CONSIDERATION OF "SUBSTANTIVE

PROVISIONS OF THE AGREEMENT BEING GRIEVED" WOULD BE FOR THE LIMITED
PURPOSE OF DETERMINING

WHETHER THE GRIEVANCE INVOLVES A CLAIM WHICH ON THE FACE IS COVERED
BY THE CONTRACT, I.E.,

INVOLVES A MATTER WHICH ARGUABLY CONCERNS THE MEANING OF APPLICATION
OF THE SUBSTANTIVE

PROVISION(S) BEING GRIEVED AND WHICH THE PARTIES INTENDED TO BE
RESOLVED UNDER THE NEGOTIATED

GRIEVANCE PROCEDURE. THE COUNCIL'S STATEMENT IN CRANE THAT THE
ASSISTANT SECRETARY MUST

DECIDE WHETHER OR NOT A DISPUTE IS SUBJECT TO THE NEGOTIATED
GRIEVANCE PROCEDURE "JUST AS AN

ARBITRATOR WOULD IF THE QUESTION WERE REFERRED TO HIM," WHILE PERHAPS
AMBIGUOUS, WAS NOT

INTENDED AND SHOULD NOT BE CONSTRUED TO MEAN THAT THE ASSISTANT
SECRETARY MAY INTERPRET THE

SUBSTANTIVE PROVISIONS OF AN AGREEMENT IN RESOLVING A GRIEVABILITY OR
ARBITRABILITY QUESTION

AS AN ARBITRATOR WOULD IN DECIDING THE MERITS OF A GRIEVANCE.
INSTEAD, THE COUNCIL'S

STATEMENT WAS INTENDED TO INDICATE THAT THE ASSISTANT SECRETARY MUST
DECIDE A QUESTION OF

GRIEVABILITY OR ARBITRABILITY UNDER A NEGOTIATED GRIEVANCE PROCEDURE
WHERE SUCH QUESTION IS

REFERRED TO HIM, JUST AS AN ARBITRATOR WOULD BE REQUIRED TO DECIDE
THE QUESTION OF

GRIEVABILITY OR ARBITRABILITY WHERE THE PARTIES BILATERALLY AGREE TO
REFER SUCH THRESHOLD

ISSUE TO THE ARBITRATOR PURSUANT TO SECTION 13(D) OF THE ORDER.
(COUNCIL DECISION AT 5-6.

EXAMINING THE APPLICATION UNDER THESE STANDARDS, IT IS CONCLUDED THAT
THE GRIEVANCES ARE NOT BARRED FROM THE GRIEVANCE/ARBITRATION PROCEDURE
UNDER SECTION 19(D) OF THE EXECUTIVE ORDER BY VIRTUE OF MR. FRIDAY'S
APPEAL TO THE FEDERAL EMPLOYEE APPEALS AUTHORITY. AS AN EXCEPTED
SERVICE APPOINTEE WITH LESS THAN ONE YEAR OF CURRENT CONTINUOUS
EMPLOYMENT, MR. FRIDAY DID NOT HAVE A RIGHT OF APPEAL TO THE CIVIL
SERVICE COMMISSION. (RESPONDENT'S EXHIBIT 13; TR. 61-62).

THE GRIEVANCES ARE ALSO NOT BARRED FROM THE GRIEVANCE/ARBITRATION
PROCEDURE UNDER SECTION 19(D) OF THE EXECUTIVE ORDER BY VIRTUE OF MR.
FRIDAY'S EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT. THE ISSUE IN THAT
PROCEEDING WILL NECESSARILY BE LIMITED TO THE SEX DISCRIMINATION ISSUE
RAISED BY MR. FRIDAY. (RESPONDENT'S EXHIBIT 17-19). CF. VETERANS
ADMINISTRATION, VETERANS BENEFITS OFFICE, 3 A/SLMR 444, A/SLMR NO. 296
(1973).

GRIEVANCE NUMBER 2, HOWEVER, IS BARRED BY SECTION 19(C) OF THE
EXECUTIVE ORDER INASMUCH AS THAT GRIEVANCE, ALLEGING THAT CERTAIN RULES
WERE INVALID BECAUSE THEY WERE NOT NEGOTIATED WITH THE UNION, WAS
PREVIOUSLY RAISED IN ANY UNFAIR LABOR PRACTICE COMPLAINT.
(COMPLAINANT'S EXHIBIT C-14; ASSISTANT SECRETARY CASE NO. 71-4744(CA).)

THE REMAINING GRIEVANCES, NUMBERS 1 AND 3 THROUGH 7, ARE SUBJECT TO
ARBITRATION UNDER THE PARTIES' NEGOTIATED AGREEMENT. ARTICLE 8.1(C)
PROVIDES THAT A GRIEVANCE MAY BE SUBMITTED TO ARBITRATION IF THE
EMPLOYEE IS NOT SATISFIED WITH THE CHIEF'S DECISION. IT IS UNCONTESTED
THAT ALL PREVIOUS LEVELS OF GRIEVANCE REVIEW HAVE BEEN EXHAUSTED. THE
GRIEVANCES ALSO PRESENT THE THRESHOLD ISSUE OF WHETHER THE APPLICANT'S
FAILURE TO MEET THE TIME LIMITS SPECIFIED FOR THE FILING OF GRIEVANCES
WERE "WITHOUT REASONABLE JUSTIFICATION" UNDER ARTICLE 8.2 OF THE
AGREEMENT. THE APPLICANT FILED WITH THE GRIEVANCES REASONS WHY IT FELT
THE GRIEVANCES SHOULD BE CONSIDERED TO BE TIMELY UNDER THE
CIRCUMSTANCES. THE ACTIVITY, IN EFFECT, FOUND THAT THESE REASONS DID
NOT PROVIDE REASONABLE JUSTIFICATION FOR FAILURE TO COMPLY WITH THE TIME
LIMITS. ARTICLE 9.1 OF THE PARTIES' NEGOTIATED AGREEMENT PROVIDES THAT
"ARBITRATION . . . IS AN ACCEPTABLE CHANNEL FOR SETTLING DISPUTES
RELATIVE TO THE INTERPRETATION OR APPLICATION OF THE AGREEMENT." SINCE
THE GRIEVANCES INVOLVE A DISPUTE AS TO THE INTERPRETATION AND
APPLICATION OF THE "REASONABLE JUSTIFICATION" STANDARD CONTAINED IN THE
NEGOTIATED AGREEMENT FOR DETERMINING THE TIMELINESS OF GRIEVANCES AND
ARE OTHERWISE MATTERS WHICH THE PARTIES DETERMINED SHOULD BE RESOLVED BY
RESORT TO ARBITRATION UNDER ARTICLE 8.1(C), I CONCLUDE THAT ALL THE
GRIEVANCES EXCEPT NUMBER 2 ARE ARBITRABLE UNDER ARTICLE 8.1(C) AND 9.1
OF THE LOCAL AGREEMENT, AND THE ARBITRATOR MUST DECIDE, AS A THRESHOLD
QUESTION, WHETHER THESE GRIEVANCES WERE TIMELY FILED WITHIN THE MEANING
OF ARTICLE 8.2 OF THE AGREEMENT.

THE PARTIES PRESENTED EVIDENCE AND ASSERTED THAT THE THRESHOLD ISSUE
OF TIMELINESS MAY BE DETERMINED IN THIS PROCEEDING. HOWEVER, I CONCLUDE
THAT THIS ISSUE INVOLVES AN INTERPRETATION AND APPLICATION OF THE
AGREEMENT, AND THEREFORE MUST BE RESOLVED BY THE ARBITRATOR. CF.
DEPARTMENT OF THE AIR FORCE, NEWARK AIR FORCE STATION, A/SLMR NO. 1044
(1978).

RECOMMENDATION

IT IS RECOMMENDED THAT ALL GRIEVANCES EXCEPT NUMBER 2 IN CASE NO.
71-5004(CA) BE FOUND TO BE SUBJECT TO THE ARBITRATION PROCEDURE SET
FORTH IN THE PARTIES' NEGOTIATED AGREEMENT.

GARVIN LEE OLIVER

ADMINISTRATIVE LAW JUDGE

DATED: 10 SEP 1979

WASHINGTON, D.C.

SERVICE SHEET

TODAY, SEPTEMBER 10, 1979, COPIES OF A RECOMMENDED DECISION AND ORDER
WERE SENT TO THE FOLLOWING:

CERTIFIED MAIL - RETURN RECEIPT REQUESTED

WILLIAM J. DUGGAN

EMPLOYEE RELATIONS SPECIALIST

U.S. FOREST SERVICE

P.O. BOX 3623

PORTLAND, OREGON 97208

#612686

P. J. HEATH

PRESIDENT, LOCAL 454

NATIONAL FEDERATION OF FEDERAL

EMPLOYEES

P.O. BOX 726

CORVALLIS, OREGON 97330

#612687

CATHERINE WAELDER, ESQUIRE

NATIONAL FEDERATION OF FEDERAL

EMPLOYEES

1016 16TH STREET, N.W.

WASHINGTON, D.C. 20036

#612688

MR. JAMES M. PEIRCE, PRESIDENT

NATIONAL FEDERATION OF FEDERAL

EMPLOYEES

1016 16TH STREET, N.W.

WASHINGTON, D.C. 20036

#612689

REGULAR MAIL

ASSISTANT DIRECTOR, LMR

U.S. OFFICE OF PERSONNEL MANAGEMENT

1900 E STREET, N.W.

WASHINGTON, D.C. 20415

FLRA

1900 E STREET, N.W. - ROOM 7469

WASHINGTON, D.C.

1 CY. EA. REGIONAL DIRECTOR

/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS 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 AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULTS WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.