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

 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 THE ACTIVITY'S INVESTIGATORY FILE
 UNDER SECTION 10(E) OF THE ORDER IN THE CIRCUMSTANCES OF THIS CASE, NO
 BASIS FOR REVIEW IS THEREBY PRESENTED.  IN THIS REGARD, THE APPEAL FAILS
 TO CONTAIN ANY SUPPORT FOR THE ASSERTION THAT THE ASSISTANT SECRETARY'S
 DECISION IS INCONSISTENT WITH APPLICABLE COUNCIL PRECEDENT, AS ALLEGED.
 RATHER, SUCH ASSERTION CONSTITUTES ESSENTIALLY MERE DISAGREEMENT WITH
 THE ASSISTANT SECRETARY'S FINDING THAT "THE INVESTIGATORY FILE (WAS)
 RELEVANT AND NECESSARY TO THE EXCLUSIVE REPRESENTATIVE . . . TO FULFILL
 ITS REPRESENTATIVE FUNCTION . . . AS WELL AS THE ADMINISTRATION OF THE
 PARTIES' NEGOTIATED AGREEMENT." NOR IS A MAJOR POLICY ISSUE PRESENTED IN
 THE CIRCUMSTANCES OF THIS CASE, AS ALLEGED, CONCERNING THE CONTENTION
 THAT THE UNION WAIVED ITS RIGHT OF ACCESS TO INVESTIGATORY FILES.  THE
 CONTENTION IN THIS REGARD CONSTITUTES NOTHING MORE THAN MERE
 DISAGREEMENT WITH THE ASSISTANT SECRETARY'S FINDING THAT ". . . THE
 RECORD DOES NOT ESTABLISH A CLEAR AND UNEQUIVOCAL WAIVER BY THE (UNION)
 OF ITS RIGHT TO THE INVESTIGATORY FILE," AND, AS SUCH, PROVIDES NO BASIS
 FOR AUTHORITY REVIEW.
 
    SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT PRESENT A MAJOR
 POLICY ISSUE, AND IT NEITHER IS ALLEGED, NOR DOES IT APPEAR, THAT HIS
 DECISION IS ARBITRARY AND CAPRICIOUS, THE 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
 :411.12 OF THE COUNCIL'S RULES.  ACCORDINGLY, REVIEW OF THE APPEAL IS
 HEREBY DENIED, AND THE REQUEST FOR A STAY OF THE ASSISTANT SECRETARY'S
 DECISION IS LIKEWISE DENIED.  /2/
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
    CC:  J. F. DAVIS-GAVIN
 
    NTEU
 
    K. AQUI
 
    IRS
 
    /1/ UNITED STATES DEPARTMENT OF THE NAVY, NAVAL ORDNANCE STATION,
 LOUISVILLE, KENTUCKY, A/SLMR 400, 3 FLRC 686 (FLRC 75A-54 (OCT. 23,
 1975), REPORT NO. 87).
 
    /2/ 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.