United States Customs Service, Region IV, Miami, FL (Respondent) and National Treasury Employees Union (Charging Party)
[ v03 p876 ]
03:0876(127)CA
The decision of the Authority follows:
3 FLRA No. 127
UNITED STATES CUSTOMS SERVICE,
REGION IV, MIAMI, FLORIDA
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 4-CA-1
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD
NOT ENGAGED IN UNFAIR LABOR PRACTICES UNDER EXECUTIVE ORDER 11491, AS
AMENDED, ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT THE COMPLAINT BE
DISMISSED IN ITS ENTIRETY. THE CHARGING PARTY AND THE GENERAL COUNSEL
FILED EXCEPTIONS 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 2423.2 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.1). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE
PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
STATUTE.
THEREFORE, PURSUANT TO SECTION 2423.29 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. THE AUTHORITY HAS CONSIDERED THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS
CASE, INCLUDING THE EXCEPTIONS FILED. IN VIEW OF THE ADMINISTRATIVE LAW
JUDGE'S CREDIBILITY FINDINGS AND, NOTING PARTICULARLY THAT THE "TENNANT
STUDY" WAS NOT MADE A PART OF THE RECORD, THE AUTHORITY ADOPTS THE
ADMINISTRATIVE LAW JUDGE'S CONCLUSIONS THAT AN INSUFFICIENT BASIS EXISTS
FOR FINDING THAT THE STUDY WAS NECESSARY AND RELEVANT TO EFFECTIVE AND
INTELLIGENT REPRESENTATION BY THE UNION.
THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATION. /1/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN AUTHORITY CASE NO. 4CA-1
BE, AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., JULY 31, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B.FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
MARC L. BARBAKOFF, ESQUIRE
ASSISTANT REGIONAL COUNSEL
OFFICE OF THE REGIONAL COUNSEL
TREASURY DEPARTMENT, CUSTOMS SERVICE
99 SOUTHEAST 5TH STREET
MIAMI, FLORIDA 33131
FOR THE RESPONDENT
LAWRENCE K. G. POOLE, ESQUIRE
ASSISTANT COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
SUITE 430, 2801 BUFORD HIGHWAY
ATLANTA, GEORGIA 30329
FOR THE CHARGING PARTY
WILLIAM N. CATES, ESQUIRE
COUNSEL FOR THE GENERAL COUNSEL
SUITE 300, 1371 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30309
FOR THE FEDERAL LABOR
RELATIONS AUTHORITY
BEFORE: BURTON S. STEINBURG
ADMINISTRATIVE LAW JUDGE
DECISION AND ORDER
STATEMENT OF THE CASE
THIS MATTER COMES BEFORE THE UNDERSIGNED ADMINISTRATIVE LAW JUDGE
PURSUANT TO A COMPLAINT AND NOTICE OF HEARING ISSUED ON JULY 30, 1078,
BY THE REGIONAL DIRECTOR FOR REGION IV, FEDERAL LABOR RELATIONS
AUTHORITY, ATLANTA, GEORGIA. SAID COMPLAINT IS BASED UPON A CHARGE
FILED ON JANUARY 11, 1979, BY THE NATIONAL TREASURY EMPLOYEES UNION
(HEREINAFTER CALLED THE UNION OR COMPLAINANT) AGAINST REGION IV, U.S.
CUSTOMS SERVICE, MIAMI, FLORIDA, (HEREINAFTER CALLED THE RESPONDENT OR
ACTIVITY).
THE COMPLAINT ALLEGES THAT THE RESPONDENT VIOLATED SECTION 19(A)(6)
OF EXECUTIVE ORDER 11491, AS AMENDED, BY VIRTUE OF ITS ACTION IN
REFUSING TO SUPPLY THE UNION CERTAIN REQUESTED INFORMATION RELATING TO A
STUDY OF 1911 OVERTIME PRACTICES WITHIN REGION IV, U.S. CUSTOMS
SERVICE, MIAMI, FLORIDA, WHICH THE UNION CLAIMS IS NECESSARY AND
RELEVANT TO INTELLIGENT BARGAINING. /2/
A HEARING WAS HELD IN THE CAPTIONED MATTER ON SEPTEMBER 5, 1979, IN
MIAMI, FLORIDA. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD,
TO ADDUCE EVIDENCE AND EXAMINE AND CROSS-EXAMINE WITNESSES.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS AND ORDER.
FINDINGS OF FACT
AT ALL TIMES SINCE DECEMBER 16, 1975, THE UNION, HAS BEEN, AND IS,
THE EXCLUSIVE REPRESENTATIVE OF ALL THE NONSUPERVISORY EMPLOYEES,
INCLUDING CUSTOMS INSPECTORS, IN RESPONDENT'S REGION IV, MIAMI, FLORIDA.
IN THE MONTH OF JUNE 1978, LAWRENCE POOLE, ASSISTANT COUNSEL FOR
NTEU, RECEIVED A COPY OF MANUAL SUPPLEMENT NUMBER 2132-03 ISSUED BY THE
NATIONAL OFFICE OF THE U.S. CUSTOMS SERVICE ON MAY 10, 1978. THE
AFOREMENTIONED SUPPLEMENT, ACCORDING TO THE TESTIMONY OF MR. POOLE,
DEALS WITH THE MANNER OF ASSIGNMENT OF "1911 OVERTIME" TO CUSTOMS
INSPECTORS.
ON JULY 7, 1978, MR. POOLE MAILED TWO SEPARATE LETTERS TO REGIONAL
COMMISSIONER BATTARD. THE FIRST LETTER REQUESTED NEGOTIATIONS WITH
RESPECT TO THE SUBSTANCE, IMPLEMENTATION AND IMPACT OF MANUAL SUPPLEMENT
NO. 2132-03 IF REGION IV INTENDED TO PUT THE MANUAL SUPPLEMENT INTO
EFFECT IN REGION IV. THE SECOND LETTER TO MR. BATTARD REQUESTED
BARGAINING WITH RESPECT TO CIRCULAR INS-2-0: I, X FIS-4, A REGIONAL
LEVEL PUBLICATION DEALING WITH THE ASSIGNMENT OF PERSONNEL TO "1911
OVERTIME" INSPECTIONAL ACTIVITIES. THE REGIONAL PUBLICATION, WHICH IS
UNDATED, REFERENCED THE CUSTOMS SERVICE HEADQUARTERS MANUAL SUPPLEMENT
OF MAY 10. /3/
THEREAFTER, BARGAINING SESSIONS BETWEEN REPRESENTATIVES OF THE UNION
AND RESPONDENT WERE HELD ON SEPTEMBER 20 AND OCTOBER 4, 1978. DURING
THE COURSE OF THE SECOND BARGAINING SESSION HELD ON OCTOBER 4, THE UNION
LEARNED FOR THE FIRST TIME THAT A STUDY /4/ HAD BEEN MADE BY MR. ALBERT
TENNANT WHO IS, AND WAS, EMPLOYED AS AN OPERATIONS OFFICER, A
CONFIDENTIAL EMPLOYEE, IN REGION IV. ACCORDING TO MR. POOLE, INASMUCH
AS THE STUDY WAS REPUTED TO BE INVOLVED WITH THE ASSIGNMENT OF OVERTIME
TO CUSTOMS INSPECTORS, HE, BOTH ORALLY AND IN WRITING, REQUESTED A COPY
OF THE "TENNANT STUDY".
BY LETTER DATED NOVEMBER 7, 1978, RESPONDENT INFORMED MR. POOLE THAT
THE "TENNANT STUDY" CONSTITUTED "PRE-DECISIONAL MEMORANDA" PREPARED BY A
STAFF MEMBER TO ASSIST IN "DELIBERATIVE OR POLICYMAKING PROCESSES", AND
AS SUCH WOULD NOT BE MADE AVAILABLE TO THE UNION FOR INSPECTION.
THE RECORD FURTHER REVEALS THAT ON OR ABOUT SEPTEMBER 20, 1978,
REGION IV INFORMED THE UNION THAT REGIONAL CIRCULAR INS-2-0: I, X FIS-4
WAS BEING WITHDRAWN BY RESPONDENT. THEREAFTER NEGOTIATIONS CONCERNING
THE "1911 OVERTIME" ISSUE WERE CONFINED TO WASHINGTON, D.C. WHERE
REPRESENTATIVES OF THE UNION AND RESPONDENT WERE ATTEMPTING TO REACH
AGREEMENT ON A NATIONWIDE CONTRACT.
ACCORDING TO THE CREDITED AND UNCONTROVERTED TESTIMONY OF MR. ALBERT
TENNANT, THE "TENNANT STUDY" REQUESTED BY THE UNION WAS AN INTERNAL
AUDIT PREPARED FOR THE REGIONAL COMMISSIONER. THE PURPOSE OF THE AUDIT
OR STUDY WAS TO DETERMINE WHETHER OR NOT THE VARIOUS PORTS WITHIN THE
JURISDICTION OF REGION IV WERE COMPLYING WITH THE RULES AND REGULATIONS
OF THE AGENCY WITH RESPECT TO RECORD KEEPING REQUIREMENTS. /5/ THUS,
THE THRUST OF THE STUDY WAS CONCERNED WITH VERIFICATION OF THE AGENCY'S
INTERNAL RECORD KEEPING CONTROLS AND NOT THE ASSIGNMENT OF 1911
OVERTIME. ALTHOUGH DURING THE COURSE OF THE STUDY TENNANT AND/OR HIS
AGENTS DID ON OCCASION SPOT CHECK, BY MEANS OF INTERVIEWS, VARIOUS
CUSTOMS INSPECTORS, SUPERVISORS AND OTHER MANAGEMENT OFFICIALS, SUCH
INTERVIEWS WERE FOR THE SOLE PURPOSE OF VALIDATING THE OVERTIME RECORDS
OF THE VARIOUS INSPECTORS AND NOT THE MANNER OF THE ASSIGNMENT OF THE
OVERTIME WORK. /6/
MR. TENNANT FURTHER TESTIFIED THAT THE "TENNANT STUDY" WAS NOT
RELATED TO, AND PLAYED NO PART IN EITHER THE MANUAL SUPPLEMENT OR THE
REGIONAL CIRCULAR WHICH DEALT IN THE MAIN WITH THE PROCEDURES TO BE
UTILIZED IN THE EQUITABLE ASSIGNMENT OF 1911 OVERTIME.
DISCUSSION AND CONCLUSIONS
IT IS WELL ESTABLISHED IN BOTH THE PRIVATE AND PUBLIC SECTORS THAT AN
EMPLOYER IS UNDER AN OBLIGATION TO FURNISH INFORMATION, SOLELY WITHIN
ITS POSSESSION, TO THE UNION WHICH REPRESENTS ITS EMPLOYEES IF SUCH
INFORMATION IS RELEVANT AND NECESSARY TO PROPER REPRESENTATION. NLRB V.
WHITIN MACHINE WORKS, 217 F.2D 593 (C.A. 4), CERT. DENIED 349 U.S. 905;
DEPARTMENT OF HEW, SSA, KANSAS CITY PAYMENT CENTER, BUREAU OF RETIREMENT
AND SURVIVORS INSURANCE, A/SLMR NO. 411.
THE INFORMATION SOUGHT BY THE UNION HEREIN FALLS FAR SHORT OF BEING
"RELEVANT AND NECESSARY" FOR PURPOSES OF EFFECTIVE REPRESENTATION. THE
"TENNANT STUDY" WAS STRICTLY AN INTERNAL AUDIT OF THE RESPONDENT'S
RECORD KEEPING PROCEDURES AND, ACCORDING TO THE CREDITED TESTIMONY OF
MR. TENNANT, DID NOT RELATE TO, OR PLAY ANY PART IN, EITHER THE
HEADQUARTERS MANUAL SUPPLEMENT OR THE SUBSEQUENT REGIONAL CIRCULAR
DEALING WITH THE EQUITABLE ASSIGNMENT OF 1911 OVERTIME. WHILE IT IS
TRUE THAT VARIOUS INSPECTORS WERE INTERVIEWED CONCERNING THEIR 1911
OVERTIME WORK, SUCH INTERVIEWS WERE FOR PURPOSES OF VERIFYING THE
RESPONDENT'S RECORDS AND UNRELATED TO THE MANNER IN WHICH THEIR OVERTIME
ASSIGNMENTS WERE MADE.
IN VIEW OF THE FOREGOING, INSUFFICIENT BASIS EXISTS FOR A FINDING
THAT THE "TENNANT STUDY" IS, OR WAS, NECESSARY AND RELEVANT TO EFFECTIVE
AND INTELLIGENT REPRESENTATION BY THE UNION. /7/ ACCORDINGLY, THE UNION
WAS NOT ENTITLED TO THE REQUESTED INFORMATION AND THE RESPONDENT DID NOT
VIOLATE SECTION 19(A)(6) OF EXECUTIVE ORDER 11491, AS AMENDED, BY
REFUSING THE UNION'S REQUEST FOR SAME. /8/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DATED: OCTOBER 16, 1979
WASHINGTON, D.C.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY THAT A COPY OF THE DECISION AND ORDER WAS MAILED TO
THE PARTIES AND THEIR REPRESENTATIVES AT THE ADDRESSES LISTED BELOW:
LORETTA PERRY
DATED: OCTOBER 16, 1979
CERTIFIED MAIL
MARC L. BARBAKOFF, ESQUIRE
ASSISTANT REGIONAL COUNSEL
OFFICE OF THE REGIONAL COUNSEL
TREASURY DEPARTMENT, CUSTOMS SERVICE
99 SOUTHEAST 5TH STREET
MIAMI, FLORIDA 33131
LAWRENCE K. G. POOLE, ESQUIRE
ASSISTANT COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
SUITE 430, 2801 BUFORD HIGHWAY
ATLANTA, GEORGIA 30329
WILLIAM N. CATES, ESQUIRE
COUNSEL FOR THE GENERAL COUNSEL
SUITE 300, 1371 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30309
REGULAR MAIL
FEDERAL LABOR RELATIONS AUTHORITY
1900 E STREET, N.W.
WASHINGTON, D.C. 20424
H. STEPHAN GORDON, GENERAL COUNSEL
1900 E STREET, N.W., ROOM 7685
WASHINGTON, D.C. 20424
MR. ROBERT TOBIAS
GENERAL COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, N.W.
WASHINGTON, D.C. 20006
EACH REGIONAL OFFICE
/1/ THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS OF E.O. 11491, AS
AMENDED, WHICH WAS OPERATIVE AT THE TIME OF THE ALLEGED UNFAIR LABOR
PRACTICE AND IS ALONE INVOLVED IN THE INSTANT COMPLAINT. THE DECISION
AND ORDER 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 EXECUTIVE ORDER.
/2/ ALTHOUGH THE COMPLAINT ALLEGES VIOLATIONS OF EXECUTIVE ORDER
11491, AS AMENDED, IT WAS ISSUED PURSUANT TO SECTIONS 7104(F) AND 7134
OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT.
1196, 1215), IN ACCORDANCE WITH PART 2423 OF THE RULES AND REGULATIONS
OF THE FEDERAL LABOR RELATIONS AUTHORITY WHICH PROVIDES THAT ALL CHARGES
OF ALLEGED UNFAIR LABOR PRACTICES UNDER SECTION 19 OF EXECUTIVE ORDER
11491, AS AMENDED, WHICH ARE FILED WITH THE FEDERAL LABOR RELATIONS
AUTHORITY ON OR AFTER JANUARY 11, 1979, SHALL BE PROCESSED BY THE
GENERAL COUNSEL AND THE AUTHORITY.
/3/ THE STATED PURPOSE OF THE REGIONAL PUBLICATION WAS TO SET FORTH
THE GUIDELINES FOR (1) THE EQUALIZATION OF MONETARY EARNINGS, (2)
ESTABLISHMENT OF RECORD KEEPING REQUIREMENTS PER EMPLOYEE, AND (3) TO
SET FORTH BOTH REGIONAL POLICY AND GUIDELINES FOR THE ASSIGNMENT OF
SUPERVISORY AND MANAGEMENT PERSONNEL TO OVERTIME INSPECTIONAL
ACTIVITIES.
/4/ HEREINAFTER REFERRED TO AS THE "TENNANT STUDY".
/5/ THE RECORD KEEPING REQUIREMENTS UNDERLYING THE STUDY WERE
DIFFERENT FROM THOSE MENTIONED IN THE MANUAL SUPPLEMENT AND REGIONAL
CIRCULAR. THE LATTER RECORD KEEPING PROVISIONS WERE DESIGNED TO INSURE
EQUALIZATION OF OVERTIME AMONG THE CUSTOMS INSPECTORS.
/6/ WHILE THE RECORD IS NOT ENTIRELY CLEAR, IT APPEARS THAT THE STUDY
OR AUDIT WAS FOR PURPOSES OF ASCERTAINING WHETHER OR NOT THE CUSTOMS
SERVICE WAS BEING PROPERLY REIMBURSED BY THE AIRLINES OR SHIPPING
COMPANIES FOR OVERTIME SERVICES PERFORMED ON THEIR BEHALF AT THE VARIOUS
PORTS OF ENTRY WITHIN REGION IV.
/7/ IN REACHING THIS CONCLUSION, IT IS NOTED THAT THE RECORD IS
BARREN OF ANY EVIDENCE INDICATING HOW THE "TENNANT STUDY" WOULD AID THE
UNION IN EXERCISING EITHER ITS CURRENT OR FUTURE REPRESENTATIONAL
RESPONSIBILITIES.
/8/ INASMUCH AS I HAVE CONCLUDED THAT "TENNANT STUDY" IS NOT RELEVANT
AND NECESSARY TO EFFECTIVE REPRESENTATION, I DEEM IT UNNECESSARY TO
CONSIDER RESPONDENT'S ALTERNATIVE DEFENSES PREDICATED ON MOOTNESS AND
CONFIDENTIALITY.