U.S. Customs Service and Houston Region, U.S. Customs Service, A/SLMR No. 1135, FLRC No. 78A-160

 1 FLRA No. 66
                                            JUNE 15, 1979
 
 MR. GARY B. LANDSMAN
 ASSISTANT GENERAL COUNSEL
 (LABOR-MANAGEMENT RELATIONS)
 U.S. CUSTOMS SERVICE
 1301 CONSTITUTION AVENUE, N.W.
 ROOM 3305
 WASHINGTON, D.C.  20229
 
                       RE:  U.S. CUSTOMS SERVICE AND HOUSTON REGION,
                            U.S. CUSTOMS SERVICE, A/SLMR No. 1135,
                            FLRC No. 78A-160
 
    DEAR MR. LANDSMAN:
 
    THE AUTHORITY HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW AND
 REQUEST FOR A STAY OF THE ASSISTANT SECRETARY'S DECISION, AND THE
 UNION'S OPPOSITION THERETO, IN THE ABOVE-ENTITLED CASE.
 
    IN THIS CASE, THE NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER
 143 (THE UNION) FILED AN UNFAIR LABOR PRACTICE COMPLAINT AGAINST THE
 DEPARTMENT OF TREASURY, U.S. CUSTOMS SERVICE (THE AGENCY) AND HOUSTON
 REGION, U.S. CUSTOMS SERVICE (THE ACTIVITY).  THE COMPLAINT ALLEGED, IN
 ESSENCE, THAT THE AGENCY AND ACTIVITY VIOLATED SECTION 19(A)(1) AND (6)
 OF THE ORDER BY IMPROPERLY WITHHOLDING FROM THE UNION MATERIAL AND
 INFORMATION AVAILABLE TO IT DURING THE FORMULATION AND PREPARATION OF
 NOTICES OF PROPOSED SUSPENSION AND/OR DISCIPLINE WHICH WERE ISSUED TO
 CERTAIN EMPLOYEES WHO HAD DESIGNATED THE UNION AS THEIR REPRESENTATIVE
 UPON RECEIPT OF THE NOTICES.
 
    THE ASSISTANT SECRETARY, IN AGREEMENT WITH THE ADMINISTRATIVE LAW
 JUDGE (ALJ), FOUND, INSOFAR AS RELEVANT HEREIN, THE AGENCY "VIOLATED
 (S)ECTION 19(A)(1) AND (6) OF THE ORDER BY WITHHOLDING CERTAIN MATERIAL
 NECESSARY AND RELEVANT TO THE PERFORMANCE OF THE (UNION'S) (S)ECTION
 10(E) DUTIES . . . ." IN SO FINDING, THE ASSISTANT SECRETARY STATED:
 
    THUS, AT THE TIME THE (UNION) ORIGINALLY SOUGHT THE MATERIAL AT ISSUE
 HEREIN, IT INDICATED
 
    THAT IT SOUGHT THE MATERIAL IN ORDER TO "ANSWER THE CHARGES AGAINST
 THE EMPLOYEES IT
 
    REPRESENTED.  THE (UNION) WAS SEEKING INFORMATION WHICH COULD HAVE
 BEEN USED AT THAT STAGE OF
 
    THE PROCEEDINGS TO DETERMINE WHAT APPEALS, IF ANY, MIGHT BE FILED ON
 BEHALF OF THE EMPLOYEES
 
    IT REPRESENTED.  ONE OPTION WOULD HAVE BEEN TO FILE A GRIEVANCE
 PURSUANT TO THE
 
    PARTIES' NEGOTIATED GRIEVANCE PROCEDURE.  IN THIS LATTER REGARD, IT
 IS WELL ESTABLISHED THAT
 
    AN EXCLUSIVE REPRESENTATIVE IS ENTITLED TO INFORMATION NECESSARY AND
 RELEVANT TO DETERMINE
 
    WHETHER OR NOT TO INITIATE A GRIEVANCE . . . .  THUS, BY FAILING TO
 PROVIDE THE NECESSARY AND
 
    RELEVANT MATERIAL WITH WHICH THE (UNION) MIGHT DETERMINE WHETHER TO
 FILE A GRIEVANCE, AND IF
 
    SO, WHICH GRIEVANCE PROCEDURE IT MIGHT INVOKE, I FIND THAT THE
 (AGENCY) VIOLATED (S)ECTION
 
    19(A)(1) AND (6) OF THE ORDER.  (FOOTNOTE OMITTED.)
 
    IN THE AGENCY'S PETITION FOR REVIEW, IT IS ALLEGED THAT THE DECISION
 OF THE ASSISTANT SECRETARY PRESENTS FIVE MAJOR POLICY ISSUES:
 
    (1) "DOES THE AVAILABILITY TO THE UNION OF RECOURSE UNDER THE FREEDOM
 OF INFORMATION ACT
 
    (FOIA) OR THE PRIVACY ACT, OR THE ACTUAL UTILIZATION OF THE
 PROCEDURES UNDER THOSE ACTS IN
 
    PURSUIT OF CERTAIN INFORMATION, TRIGGER THE APPLICATION OF (S)ECTION
 19(D) OF THE EXECUTIVE
 
    ORDER TO THE EXTENT THAT AN UNFAIR LABOR PRACTICE COMPLAINT ALLEGING
 A DENIAL OF THAT SAME
 
    INFORMATION IS BARRED?"
 
    (2) "DOES THE PURSUIT OF THE DENIAL OF INFORMATION AS A SUBSTANTIVE
 ISSUE IN AN AGENCY
 
    DISCIPLINARY GRIEVANCE PROCEEDING TRIGGER (S)ECTION 19(D) OF THE
 ORDER TO THE EXTENT THAT AN
 
    UNFAIR LABOR PRACTICE COMPLAINT ALLEGING DENIAL OF THAT SAME
 INFORMATION TO THE EXCLUSIVE
 
    REPRESENTATIVE IS BARRED?"
 
    (3) "IS IT MANDATORY FOR A COMPLAINANT/UNION IN AN UNFAIR LABOR
 PRACTICE CASE TO PROVE
 
    MATERIALITY AND RELEVANCE WITH REGARD TO INFORMATION WHICH WAS
 ALLEGEDLY DENIED THAT
 
    COMPLAINANT/EXCLUSIVE REPRESENTATIVE AND IS IT FURTHER REQUIRED THAT
 THE ASSISTANT SECRETARY
 
    SPECIFICALLY MAKE SUCH FINDING IN ORDER FOR AN UNFAIR LABOR PRACTICE
 VIOLATION TO BE FOUND?"
 
    (4) "IS A DISCIPLINARY PROCEEDING AGAINST AN INDIVIDUAL EMPLOYEE SO
 FUNDAMENTALLY PERSONAL
 
    THAT THE (U)NION HAS NO INHERENT RIGHT TO REPRESENT THAT EMPLOYEE OR
 TO RECEIVE INFORMATION IN
 
    CONNECTION WITH THAT DISCIPLINARY CASE ABSENT A DESIGNATION OF
 REPRESENTATIVE BY THAT
 
    EMPLOYEE;  FURTHER, UPON SUCH DESIGNATION, DOES THE (U)NION ACCEDE TO
 ANY GREATER RIGHT TO
 
    RECEIVE INFORMATION THAN THE AFFECTED EMPLOYEE?"
 
    (5) "TO WHAT EXTENT DO THE CIVIL SERVICE RULES AND REGULATIONS GOVERN
 AN AGENCY'S
 
    PROCESSING OF DISCIPLINARY CASES AND CAN AN UNFAIR LABOR PRACTICE
 VIOLATION (BE) FOUND AGAINST
 
    AN AGENCY FOR SIMPLY COMPLYING WITH THOSE REGULATIONS BY FURNISHING
 ONLY THAT INFORMATION
 
    RELIED UPON TO SUPPORT CHARGES AND SPECIFICATIONS IN DISCIPLINARY
 CASES?"
 
    IN ADDITION, IT IS ALLEGED THAT THE ASSISTANT SECRETARY'S DECISION
 WAS ARBITRARY AND CAPRICIOUS IN THAT (1) HE FAILED TO DEAL WITH THE
 SECTION 19(D) ISSUE;  (2) HE FOUND WITHOUT SUPPORTING EVIDENCE, THAT
 SPECIFIC AND NECESSARY EVIDENCE WAS WITHHELD FROM THE UNION;  AND (3) HE
 DECIDED THE INSTANT CASE IN A MANNER INCONSISTENT WITH ONE OF HIS
 PREVIOUS DECISIONS.
 
    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 OR APPEAR ARBITRARY
 AND CAPRICIOUS.
 
    WITH REGARD TO THE ALLEGATIONS CONCERNING WHETHER THE AVAILABILITY OF
 THE REQUESTED INFORMATION UNDER THE FOIA OR THE PRIVACY ACT TRIGGERS
 SECTION 19(D) OF THE ORDER, IN THE AUTHORITY'S VIEW, NO MAJOR POLICY
 ISSUE IS THEREBY PRESENTED WARRANTING REVIEW.  THAT IS, THE APPEAL FAILS
 TO CONTAIN ANY BASIS TO SUPPORT THE CONTENTION THAT THE FREEDOM OF
 INFORMATION ACT OR THE PRIVACY ACT CONSTITUTES A STATUTORY APPEAL
 PROCEDURE SO AS TO PRECLUDE THE UNION'S RIGHT TO SEEK NECESSARY AND
 RELEVANT INFORMATION UNDER THE UNFAIR LABOR PRACTICE PROCEDURES OF THE
 ORDER.
 
    FURTHER, NO MAJOR POLICY ISSUE IS PRESENTED CONCERNING THE PURSUIT OF
 THE INFORMATION IN AN AGENCY DISCIPLINARY GRIEVANCE PROCEDURE, NOTING IN
 THIS REGARD THAT THE SUBJECT GRIEVANCES WERE OVER THE DISCIPLINARY
 ACTION AND NOT OVER THE FAILURE TO PROVIDE THE UNION WITH CERTAIN
 NECESSARY AND RELEVANT INFORMATION.
 
    WITH RESPECT TO THE ALLEGATION THAT A MAJOR POLICY ISSUE IS PRESENTED
 CONCERNING THE NEED TO PROVE MATERIALITY AND RELEVANCE, NO BASIS FOR
 REVIEW IS THEREBY PRESENTED.  RATHER, THE CONTENTIONS IN THIS REGARD
 CONSTITUTE ESSENTIALLY MERE DISAGREEMENT WITH THE ASSISTANT SECRETARY'S
 FINDING THAT THE AGENCY "VIOLATED (S)ECTION 19(A)(1) AND (6) OF THE
 ORDER BY WITHHOLDING CERTAIN MATERIAL NECESSARY AND RELEVANT TO THE
 PERFORMANCE OF THE (UNION'S) (S)ECTION 10(E) DUTIES . . . " AND
 THEREFORE DO NOT RAISE A MAJOR POLICY ISSUE AS ALLEGED.
 
    SIMILARLY, WITH REGARD TO THE FOURTH ALLEGED MAJOR POLICY ISSUE SET
 FORTH ABOVE TO THE EFFECT THAT THE UNION HAD NO GREATER RIGHT TO THE
 REQUESTED INFORMATION AS DESIGNATED REPRESENTATIVE THAN THE EMPLOYEES
 PERSONALLY INVOLVED IN THE DISCIPLINARY PROCEEDINGS, NO BASIS FOR REVIEW
 IS THEREBY PRESENTED, AGAIN NOTING THAT SUCH CONTENTION CONSTITUTES, IN
 ESSENCE, MERE DISAGREEMENT WITH THE ASSISTANT SECRETARY'S FINDING THAT
 THE AGENCY VIOLATED THE ORDER BY WITHHOLDING INFORMATION NECESSARY AND
 RELEVANT TO THE UNION'S PERFORMANCE OF ITS SECTION 10(E) DUTIES.
 
    FINALLY, NO BASIS FOR REVIEW IS PRESENTED BY THE FIFTH ALLEGED MAJOR
 POLICY ISSUE AS TO WHETHER AN UNFAIR LABOR PRACTICE CAN BE FOUND AGAINST
 AN AGENCY FOR SIMPLY COMPLYING WITH CSC REGULATIONS.  IN THIS REGARD,
 THE APPEAL FAILS TO SHOW THAT THE CONCLUSION OF THE ASSISTANT SECRETARY
 THAT THE REQUESTED INFORMATION WAS NECESSARY TO ENABLE THE UNION TO
 PERFORM ITS SECTION 10(E) DUTIES IS INCONSISTENT WITH THE PURPOSES AND
 POLICIES OF THE ORDER.  RATHER, ONCE AGAIN THE AGENCY IS MERELY
 DISAGREEING WITH THE CONCLUSION OF THE ASSISTANT SECRETARY THAT THE
 INFORMATION REQUESTED BY THE UNION WAS NECESSARY AND RELEVANT.
 
    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.  THUS, THE APPEAL FAILS TO
 ESTABLISH THAT THERE IS ANY CLEAR, UNEXPLAINED INCONSISTENCY BETWEEN THE
 INSTANT DECISION AND PREVIOUSLY PUBLISHED DECISIONS OF THE ASSISTANT
 SECRETARY, AS ALLEGED.  MOREOVER, AS PREVIOUSLY STATED, THE ASSERTION
 THAT THERE WAS NO EVIDENCE TO SUPPORT THE ASSISTANT SECRETARY'S
 DETERMINATION THAT THE AGENCY WITHHELD NECESSARY AND RELEVANT EVIDENCE
 FROM THE UNION PROVIDES NO BASIS FOR REVIEW.  NOR DOES IT APPEAR, IN
 VIEW OF THE AUTHORITY'S DISPOSITION OF THE AGENCY'S ALLEGATIONS SET
 FORTH ABOVE, THAT ANY BASIS FOR REVIEW IS PRESENTED BY THE ASSISTANT
 SECRETARY'S FAILURE TO EXPRESSLY REJECT THE AGENCY'S SECTION 19(D)
 CONTENTIONS IN THE INSTANT CASE.
 
    SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
 AND CAPRICIOUS OR PRESENT A MAJOR POLICY ISSUE, THE APPEAL FAILS TO MEET
 THE REQUIREMENTS FOR REVIEW AS SET FORTH IN SECTION 2400.2 OF THE
 AUTHORITY'S RULES AND REGULATIONS WHICH INCORPORATES BY REFERENCE
 SECTION 2411.12 OF THE COUNCIL'S RULES OF PROCEDURE.  ACCORDINGLY, THE
 PETITION FOR REVIEW IS HEREBY DENIED.  /1/
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
    CC:  R. V. ROBERTSON
 
    NTEU
 
    /1/ 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.