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 VAR