Social Security Administration, Bureau of Hearings and Appeals, A/SLMR No. 1134, FLRC No. 78A-143

 



[ v01 p229 ]
01:0229(30)CA
The decision of the Authority follows:


 1 FLRA No. 30
                                            APRIL 27, 1979
 
 MR. JAMES E. MARSHALL
 PRESIDENT
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 3615
 P. O. BOX 147
 ARLINGTON, VIRGINIA 22210
 
 MR. IRVING L. BECKER
 LABOR RELATIONS OFFICER
 SOCIAL SECURITY ADMINISTRATION
 ROOM G-402, WEST HIGH RISE BUILDING
 6401 SECURITY BOULEVARD
 BALTIMORE, MARYLAND 21235
 
                      RE:  SOCIAL SECURITY ADMINISTRATION, BUREAU OF 
                           HEARINGS AND APPEALS, A/SLMR No. 1134, 
                           FLRC No. 78A-143
 
 GENTLEMEN:
 
    THE AUTHORITY HAS CAREFULLY CONSIDERED THE PETITIONS FOR REVIEW OF
 THE ASSISTANT SECRETARY'S DECISION, AND THE UNION'S OPPOSITION TO THE
 AGENCY'S PETITION AND REQUEST FOR A STAY THEREOF, FILED IN THE
 ABOVE-ENTITLED CASE.
 
    IN THIS CASE, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
 3615, AFL-CIO (THE UNION) FILED AN UNFAIR LABOR PRACTICE COMPLAINT
 AGAINST THE SOCIAL SECURITY ADMINISTRATION, BUREAU OF HEARINGS AND
 APPEALS (THE ACTIVITY).  THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT THE
 ACTIVITY VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER "BY FAILING TO
 NOTIFY AND MEET AND CONFER WITH THE (UNION) CONCERNING A DECISION MADE
 BY THE (ACTIVITY) TO TEMPORARILY SUSPEND PROMOTIONS FROM GS-12 TO GS-13
 FOR EMPLOYEES CLASSIFIED AS HEARINGS AND APPEALS ANALYSTS (ANALYSTS)."
 
    THE ASSISTANT SECRETARY FOUND THAT, "BY FAILING TO NOTIFY THE (UNION)
 AND AFFORD IT THE OPPORTUNITY TO BARGAIN CONCERNING THE IMPACT AND
 IMPLEMENTATION OF ITS DECISION . . . TO SUSPEND THE PROMOTIONS OF
 EMPLOYEES CLASSIFIED AS ANALYSTS GS-12 TO GS-13 THE (ACTIVITY) VIOLATED
 (S)ECTION 19(A)(1) AND (6) OF THE ORDER." IN SO CONCLUDING, THE
 ASSISTANT SECRETARY STATED:
 
    (I) FIND THAT . . . WHEN THE (ACTIVITY) POSTED A VACANCY ANNOUNCEMENT
 FOR AN ANALYST
 
    POSITION DESCRIBING THE PROMOTION POTENTIAL OF SUCH POSITION TO
 GS-12, THE (ACTIVITY) HAD, IN
 
    AFFECT, DECIDED, AT REPRESENTATIVE FUNCTION WITH REGARD TO THE
 PROBATIONARY EMPLOYEE, AS WELL
 
    AS THE ADMINISTRATION OF THE PARTIES' NEGOTIATED AGREEMENT.
 
    FURTHER, IN RESPONSE TO THE ACTIVITY'S CONTENTION THAT THE UNION HAD
 WAIVED, IN PRIOR CONTRACTUAL BARGAINING, ITS RIGHT TO DOCUMENTARY
 MATERIAL CONCERNING THE TERMINATION OF PROBATIONARY EMPLOYEES, THE
 ASSISTANT SECRETARY FOUND THAT "THE RECORD DOES NOT ESTABLISH A CLEAR
 AND UNEQUIVOCAL WAIVER BY THE (UNION) OF ITS RIGHT TO THE INVESTIGATORY
 FILE." UNDER ALL OF THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND
 THAT THE ACTIVITY VIOLATED SECTION 19()(1) AND (6) OF THE ORDER BY
 REFUSING THE UNION'S REQUEST FOR INFORMATION WHICH HE DETERMINED WAS
 NECESSARY AND RELEVANT FOR THE UNION TO DISCHARGE ITS OBLIGATIONS TO
 REPRESENT ALL EMPLOYEES IN THE EXCLUSIVELY RECOGNIZED BARGAINING UNIT.
 
    IN YOUR PETITION FOR REVIEW ON BEHALF OF THE AGENCY, IT IS ALLEGED
 THAT A MAJOR POLICY ISSUE IS RAISED BY "(T)HE ASSISTANT SECRETARY'S
 DECISION THAT AN EXCLUSIVE REPRESENTATIVE HAS A RIGHT TO ACCESS TO THE
 (ACTIVITY'S) INSPECTION FILE UNDER SECTION 10(E) OF THE ORDER SO THAT IT
 MAY REPRESENT THE INTERESTS OF PROBATIONARY EMPLOYEES . . .," CONTENDING
 THAT SUCH DECISION IS INCONSISTENT WITH COUNCIL PRECEDENT.  /1/ IT IS
 FURTHER ALLEGED THAT A MAJOR POLICY ISSUE IS PRESENTED BY "(T)HE
 ASSISTANT SECRETARY'S FINDING THAT THE (UNION'S) WITHDRAWAL OF ITS
 NEGOTIATION DEMAND FOR RIGHT OF ACCESS TO THE (ACTIVITY'S) INVESTIGATIVE
 FILE DID NOT EVIDENCE A CLEAR AND UNEQUIVOCAL WAIVER OF THAT RIGHT . .
 ."
 
    IN THE AUTHORITY'S OPINION, THE 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 PRESENT ANY MAJOR POLICY ISSUES, AND IT NEITHER IS
 ALLEGED, NOR DOES IT OTHERWISE APPEAR, THAT HIS DECISION IS ARBITRARY
 AND CAPRICIOUS.
 
    AS TO THE ALLEGED MAJOR POLICY ISSUE CONCERNING THE EXCLUSIVE
 REPRESENTATIVE'S RIGHT OF ACCESS TO