Department of Health, Education, and Welfare, Public Health Service, Navajo Area Indian Health Service, Tuba City, Arizona 

 1 FLRA No. 45
                                            MAY 30, 1979
 
 MR. JOHN EGAN
 LABOR RELATIONS STAFF
 PUBLIC HEALTH SERVICE
 5600 FISHERS LANE
 ROOM 18A-31, PARKLAWN BUILDING
 ROCKVILLE, MARYLAND 20857
 
                         RE:  DEPARTMENT OF HEALTH, EDUCATION, AND 
                              WELFARE, PUBLIC HEALTH SERVICE, NAVAJO 
                              AREA INDIAN HEALTH SERVICE, TUBA CITY, 
                              ARIZONA, A/SLMR No. 1146, FLRC No. 78A-183
 
 DEAR MR. EGAN:
 
    THE AUTHORITY HAS CAREFULLY CONSIDERED THE ACTIVITY'S PETITION FOR
 REVIEW OF THE ASSISTANT SECRETARY'S DECISION, AND THE UNION'S OPPOSITION
 THERETO, IN THE ABOVE-ENTITLED CASE.  /1/
 
    THIS CASE AROSE AS THE RESULT OF A CHALLENGED BALLOT CAST IN A RUNOFF
 ELECTION AMONG ALL GENERAL SCHEDULE AND WAGE GRADE NONPROFESSIONAL
 EMPLOYEES AT THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, PUBLIC
 HEALTH SERVICE, NAVAJO AREA INDIAN HEALTH SERVICE, TUBA CITY, ARIZONA
 (THE ACTIVITY) IN WHICH THE NAVAJO NATION INDIAN HEALTH CARE EMPLOYEES,
 LOCAL 1376, LABORERS INTERNATIONAL UNION, AFL-CIO (THE UNION)
 PARTICIPATED.  THE CHALLENGED BALLOT, WHICH WAS SUFFICIENT IN NUMBER TO
 AFFECT THE OUTCOME OF THE RUNOFF ELECTION, WAS CHALLENGED BY THE UNION
 ON THE GROUNDS THAT THE INDIVIDUAL INVOLVED, A COMMUNITY HEALTH
 EDUCATOR, WAS A PROFESSIONAL EMPLOYEE RATHER THAN A NONPROFESSIONAL
 EMPLOYEE AS ASSERTED BY THE ACTIVITY.
 
    THE ASSISTANT SECRETARY FOUND THAT, UNDER THE PARTICULAR
 CIRCUMSTANCES OF THIS CASE, THE INDIVIDUAL INVOLVED WAS A PROFESSIONAL
 EMPLOYEE WITHIN THE MEANING OF THE ORDER.  IN SO FINDING, HE STATED:
 
    (T)HE RECORD SHOWS THAT AT THE TIME OF THE ELECTION IN THIS MATTER
 (THE EMPLOYEE) WAS A
 
    COMMUNITY HEALTH EDUCATOR AND THAT HER WORK ENTAILS PRESENTING
 LECTURES ON HEALTH CARE
 
    SUBJECTS TO NAVAJO AND HOPI INDIANS AT VARIOUS PUBLIC HEALTH SERVICE
 CLINICS. IN PERFORMING
 
    HER WORK, (SHE) TRAVELS TO THE CLINICS WHERE SHE CONDUCTS LECTURES,
 PROVIDES INSTRUCTION AND
 
    ANSWERS QUESTIONS.  IN THE PREPARATION AND PERFORMANCE OF THIS WORK
 THE EMPLOYEE) RECEIVES NO
 
    DAILY SUPERVISION.  IN THIS REGARD, SHE DECIDES WHAT COMPLEX MEDICAL
 CONCERNS SHOULD BE
 
    RELAYED TO APPROPRIATE PUBLIC HEALTH SERVICE PERSONNEL.  THE RECORD
 INDICATES THAT SHE IS ABLE
 
    TO PROVIDE SUITABLE INFORMATION ON HEALTH CARE NEEDS TO THE INDIAN
 PEOPLE BECAUSE OF HER
 
    SPECIALIZED EDUCATIONAL TRAINING AND UNIQUE CULTURAL BACKGROUND.  IN
 ADDITION TO PROVIDING
 
    HEALTH CARE INFORMATION, (SHE) SERVES AS A CROSS CULTURAL ADVISOR AND
 LIAISON TO PUBLIC HEALTH
 
    SERVICE OFFICIALS AND ASSISTS IN ORIENTATION PROGRAMS AND IN SERVICE
 TRAINING ACTIVITIES WHERE
 
    SHE MAKES PRESENTATIONS TO EMPLOYEES, AGAIN UTILIZING HER SPECIALIZED
 EDUCATIONAL TRAINING IN
 
    A MANNER CONSISTENT WITH THE CULTURAL NEEDS OF THE INDIAN PEOPLE.
 
    UNDER THESE CIRCUMSTANCES, AND AS THE EVIDENCE ESTABLISHES THAT
 
    (THIS EMPLOYEE'S) WORK IS OF AN INTELLECTUAL AND UNIQUE NATURE,
 REQUIRING THE CONSISTENT
 
    EXERCISE OF DISCRETION AND INDEPENDENT JUDGMENT, I FIND THAT SHE IS A
 PROFESSIONAL EMPLOYEE
 
    WITHIN THE MEANING OF THE ORDER.  THEREFORE, I SHALL ORDER THAT HER
 BALLOT NOT BE OPENED AND
 
    COUNTED.
 
    AFTER THE UNION WAS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE OF THE
 UNIT FOUND APPROPRIATE HEREIN, THE ACTIVITY FILED WITH THE FEDERAL LABOR
 RELATIONS COUNCIL THE INSTANT PETITION FOR REVIEW OF THE ASSISTANT
 SECRETARY'S DECISION.
 
    IN THE ACTIVITY'S PETITION FOR REVIEW, IT IS ALLEGED THAT THE
 ASSISTANT SECRETARY'S DECISION HEREIN WAS ARBITRARY AND CAPRICIOUS IN
 THAT HE "MISCONSTRUED," AND "ERRONEOUSLY CHARACTERIZED OR IGNORED"
 CERTAIN FACTS IN THE RECORD IN FINDING THAT THE INDIVIDUAL INVOLVED WAS
 A PROFESSIONAL EMPLOYEE.  IN PARTICULAR, IT IS CONTENDED THAT THE FACTS
 IN THE RECORD DO NOT SUPPORT HIS FINDINGS (A) THAT THE EMPLOYEE RECEIVED
 NO DAILY SUPERVISION IN THE PREPARATION AND PERFORMANCE OF HER WORK;
 (B) THAT SHE DECIDED WHAT COMPLEX MEDICAL CONCERNS SHOULD BE RELAYED TO
 APPROPRIATE PUBLIC HEALTH SERVICE PERSONNEL;  AND (C) THAT SHE HAD
 RECEIVED SPECIALIZED EDUCATIONAL TRAINING.  IT IS FURTHER ALLEGED THAT
 THE ASSISTANT SECRETARY'S DECISION HEREIN RAISES A MAJOR POLICY ISSUE AS
 TO "WHETHER OR NOT CONSIDERATION OF AN EMPLOYEE'S CULTURAL BACKGROUND IN
 DETERMINING PROFESSIONAL OR NONPROFESSIONAL STATUS UNDER THE ORDER IS
 INCONSISTENT WITH THE PURPOSES OF THE ORDER."
 
    IN THE AUTHORITY'S OPINION, THE ACTIVITY'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.
 
    AS TO THE ALLEGATION THAT THE ASSISTANT SECRETARY'S DECISION 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, THE ACTIVITY'S
 CONTENTION THAT THE FACTS IN THE RECORD DO NOT SUPPORT CERTAIN OF THE
 ASSISTANT SECRETARY'S FINDINGS CONSTITUTES ESSENTIALLY NOTHING MORE THAN
 A DISAGREEMENT WITH THE ASSISTANT SECRETARY'S FACTUAL DETERMINATIONS AND
 THEREFORE PRESENTS NO BASIS FOR REVIEW.  WITH RESPECT TO THE ALLEGED
 MAJOR POLICY ISSUE AS TO WHETHER IT IS INCONSISTENT WITH THE PURPOSES OF
 THE ORDER TO CONSIDER AN EMPLOYEE'S CULTURAL BACKGROUND IN DETERMINING
 PROFESSIONAL OR NONPROFESSIONAL STATUS, IN THE AUTHORITY'S VIEW NO BASIS
 FOR REVIEW IS THEREBY PRESENTED.  IN THIS REGARD, THE APPEAL HEREIN DOES
 NOT TAKE ISSUE WITH THE DEFINITION OF "PROFESSIONAL EMPLOYEE" WHICH THE
 ASSISTANT SECRETARY HAD ENUNCIATED IN PRIOR DECISIONS AND WHICH THE
 COUNCIL PREVIOUSLY HAD FOUND "TO BE WORKING SATISFACTORILY." (SEE
 LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1975), AT 30.)
 RATHER, THE APPEAL HEREIN ESSENTIALLY TAKES ISSUE ONLY WITH THE MANNER
 IN WHICH THE ASSISTANT SECRETARY APPLIED THE DEFINITION TO THE FACTS OF
 THIS CASE, AND THEREFORE DOES NOT RAISE A MAJOR POLICY ISSUE WARRANTING
 REVIEW.  /2/ SEE NATIONAL SCIENCE FOUNDATION, A/SLMR NO. 487, 4 FLRC
 188, SERVICE, NATIONAL OFFICE, WASHINGTON, D.C., A/SLMR NO. 630, 4 FLRC
 512 (FLRC NO. 76-A-66 (SEPT. 30, 1976), REPORT NO. 114);  LAKE CENTRAL
 REGION, BUREAU OF OUTDOOR RECREATION, DEPARTMENT OF THE INTERIOR,
 FEDERAL BUILDING, ANN ARBOR, MICHIGAN, A/SLMR NO. 1032, FLRC NO. 78A-89
 (DEC. 13, 1978), REPORT NO. 161.
 
    SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
 AND CAPRICIOUS OR PRESENT A MAJOR POLICY ISSUE, THE ACTIVITY'S 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, THE INSTANT
 PETITION FOR REVIEW IS HEREBY DENIED.  /3/
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
    CC:  R. J. CONNERTON
 
    /1/ ON MAY 3, 1979, THE ACTIVITY FILED WITH THE AUTHORITY AN
 AMENDMENT TO ITS PETITION FOR REVIEW WHICH REQUESTED A STAY OF THE
 ASSISTANT SECRETARY'S DECISION IN THIS CASE.  THE UNION FILED AN
 OPPOSITION THERETO ON MAY 11, 1979.  IN VIEW OF THE AUTHORITY'S
 DISPOSITION OF THE INSTANT APPEAL, IT IS UNNECESSARY TO PASS UPON EITHER
 THE TIMELINESS OR THE MERITS OF THE ACTIVITY'S REQUEST FOR A STAY.
 
    /2/ IN SO CONCLUDING, THE AUTHORITY DOES NOT PASS UPON OR ADOPT THE
 ASSISTANT SECRETARY'S REASONING IN FINDING THAT THE PARTICULAR EMPLOYEE
 INVOLVED HEREIN IS A PROFESSIONAL EMPLOYEE WITHIN THE MEANING OF E.O.
 11491, AS AMENDED, BUT DECIDES ONLY THAT THE ASSISTANT SECRETARY'S
 DECISION IN THE INSTANT CASE RAISES NO MAJOR POLICY ISSUE WARRANTING
 REVIEW UNDER THE ORDER.
 
    /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.