Department of the Interior, Bureau of Indian Affairs, Phoenix Area Office and National Federation of Federal Employees, Local 520 (Authority decision, April 17, 1979)

Final FLRA decision under Executive Order 11491. The Authority denied review of a procedural unfair labor practice 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

NFFE Local 520 alleged that the Bureau of Indian Affairs stopped transporting Phoenix employees between home and work without bargaining. The judge and Assistant Secretary dismissed the unfair labor practice complaint because the same issues had already been raised under the parties' negotiated grievance procedure. The union sought review, arguing that management had prevented a grievance decision. The Authority found no arbitrary decision or major policy issue that warranted review and denied the petition. It did not decide whether ending the transportation practice was itself unlawful.

Decision snapshot

• Authority: Executive Order 11491, § 19(d); 5 U.S.C. § 7135(b).
• Outcome: Review denied; procedural dismissal of complaint stands.
• Key point: The complaint could not proceed under the Order's unfair labor practice process after the issues were raised in the negotiated grievance process.

Full text (FLRA public release)

[ v01 p179 ]

01:0179(23)CA

The decision of the Authority follows:

1 FLRA NO. 23
APRIL 17, 1979

MR. ROBERT J. ENGLEHART
STAFF ATTORNEY
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES
1016 16TH STREET, N.W.
WASHINGTON, D.C. 20036

RE: DEPARTMENT OF INTERIOR, BUREAU OF
INDIAN AFFAIRS, PHOENIX AREA OFFICE,
PHOENIX, ARIZONA, A/SLMR No. 1126,
FLRC No. 78A-150

DEAR MR. ENGLEHART:

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

IN THIS CASE, THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 520
(THE UNION) FILED AN UNFAIR LABOR PRACTICE COMPLAINT AGAINST THE
DEPARTMENT OF INTERIOR, BUREAU OF INDIAN AFFAIRS, PHOENIX AREA OFFICE,
PHOENIX, ARIZONA (THE ACTIVITY). THE COMPLAINT ALLEGED THAT THE
ACTIVITY VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY IMPLEMENTING
AN AGENCY-WIDE DIRECTIVE TO DISCONTINUE THE PRACTICE OF TRANSPORTING
EMPLOYEES, BY GOVERNMENT OWNED VEHICLES, BETWEEN THEIR HOMES AND THEIR
PLACE OF WORK WITHOUT AFFORDING THE UNION THE OPPORTUNITY TO NEGOTIATE
WITH REGARD TO THE DECISION ITSELF, OR ITS IMPLEMENTATION AND IMPACT ON
ADVERSELY AFFECTED EMPLOYEES.

THE ADMINISTRATIVE LAW JUDGE (ALJ) RECOMMENDED THAT THE COMPLAINT BE
DISMISSED IN ITS ENTIRETY, FINDING THAT ALL ISSUES RAISED IN THE INSTANT
COMPLAINT HAD PREVIOUSLY BEEN RAISED IN A GRIEVANCE FILED UNDER THE
NEGOTIATED AGREEMENT BETWEEN THE ACTIVITY AND THE UNION AND, THUS,
SECTION 19(D) OF THE ORDER BARRED HIS CONSIDERATION OF THE COMPLAINT
HEREIN. THE ASSISTANT SECRETARY ADOPTED THE ALJ'S FINDINGS, CONCLUSIONS
AND RECOMMENDATION THAT FURTHER PROCEEDINGS ON THE INSTANT COMPLAINT
WERE UNWARRANTED AND, ACCORDINGLY, DISMISSED IT. IN SO DOING, HE
STATED:

(T)HE EVIDENCE ESTABLISHES THAT THE ISSUES RAISED (HEREIN) WERE
PREVIOUSLY RAISED AND

CONSIDERED AT SEVERAL STEPS OF THE PARTIES' NEGOTIATED GRIEVANCE
PROCEDURE. UNDER THESE

CIRCUMSTANCES, I AGREE WITH THE (ALJ'S) CONCLUSION THAT (S)ECTION
19(D) OF THE ORDER PRECLUDES

CONSIDERATION OF THE ISSUES INVOLVED UNDER THE UNFAIR LABOR PRACTICE
PROCEDURES OF THE

EXECUTIVE ORDER.

IN THE UNION'S PETITION FOR REVIEW, IT IS CONTENDED THAT THE
ASSISTANT SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS AND PRESENTS
THE FOLLOWING MAJOR POLICY ISSUE: "IF THE UNION'S GRIEVANCE IS
PREVENTED, SOLELY THROUGH MANAGEMENT'S CONDUCT, FROM BEING DECIDED UNDER
THE NEGOTIATED GRIEVANCE PROCEDURE, DOES (SECTION) 19(D) BAR PROCESSING
OF THE ISSUE AS AN UNFAIR LABOR PRACTICE?" /1/

IN THE AUTHORITY'S OPINION, THE UNION'S 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
RAISE ANY MAJOR POLICY ISSUES.

WITH RESPECT TO THE UNSUPPORTED 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. AS TO THE
ALLEGED MAJOR POLICY ISSUE REGARDING THE ASSISTANT SECRETARY'S FINDING
THAT SECTION 19(D) PRECLUDED FURTHER CONSIDERATION OF THE INSTANT
COMPLAINT, NOTING PARTICULARLY THE ASSISTANT SECRETARY'S FINDING THAT
"THE EVIDENCE ESTABLISHE(D) THAT THE ISSUES RAISED (HEREIN) WERE
PREVIOUSLY RAISED AND CONSIDERED AT SEVERAL STEPS OF THE PARTIES'
NEGOTIATED GRIEVANCE PROCEDURE," IN THE AUTHORITY'S VIEW NO MAJOR POLICY
ISSUE IS PRESENTED WARRANTING REVIEW. RATHER, THE UNION'S ASSERTION IN
THIS REGARD CONSTITUTES ESSENTIALLY A DISAGREEMENT WITH THE ABOVE
FINDING BY THE ASSISTANT SECRETARY, BASED UPON THE EVIDENCE PRESENTED IN
THE PARTICULAR CIRCUMSTANCES OF THIS CASE, AND THEREFORE DOES NOT
PRESENT A BASIS FOR AUTHORITY REVIEW.

SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS OR PRESENT A MAJOR POLICY ISSUE, YOUR 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. ACCORDINGLY, YOUR PETITION FOR REVIEW
IS HEREBY DENIED. /2/

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

CC: C. GEIOGRAMAH

INTERIOR

/1/ THE UNION FURTHER ALLEGES IN ITS APPEAL THAT, "(A)SSUMING THE
UNDERLYING ISSUE IN THIS CASE IS PROPERLY AN UNFAIR LABOR PRACTICE," THE
ALJ ERRONEOUSLY FOUND UNLAWFUL THE ACTIVITY'S PAST PRACTICE OF PROVIDING
VAN TRANSPORTATION FOR ITS EMPLOYEES. HOWEVER, THE AUTHORITY NOTES THAT
THE ASSISTANT SECRETARY FOUND IT "UNNECESSARY TO PASS ON . . . THE
(ALJ'S) CONCLUSION WITH RESPECT TO THE MERITS OF THE INSTANT COMPLAINT .
. .," AND THEREFORE, APART FROM OTHER CONSIDERATIONS, NO BASIS FOR
REVIEW IS THEREBY PRESENTED.

/2/ 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.