18:0377(51)CA - Customs Service, Region VIII, San Francisco, CA and NTEU -- 1985 FLRAdec CA
[ v18 p377 ]
18:0377(51)CA
The decision of the Authority follows:
18 FLRA No. 51
U.S. CUSTOMS SERVICE, REGION VIII
SAN FRANCISCO, CALIFORNIA
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 9-CA-993
DECISION AND ORDER
The Administrative Law Judge issued his Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. Thereafter, the
Charging Party filed exceptions to the Judge's Decision, the General
Counsel filed cross-exceptions, and the Respondent filed an opposition
to the Charging Party's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, /1/ conclusions and recommended Order.
ORDER
IT IS ORDERED that the complaint in Case No. 9-CA-993 be, and it
hereby is, dismissed.
Issued, Washington, D.C., June 12, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Gary B. Landsman, Esq.
For the Respondent /2/
Bari S. Ness, Esq.
For the General Counsel
Andrew Krakoff, Esq.
For the Charging Party
Before: WILLIAM NAIMARK, Administrative Law Judge
DECISION
Statement of the Case
Pursuant to an Amended Complaint and Notice of Hearing issued on
December 14, 1981 by the Acting Regional Director for the Federal Labor
Relations Authority, San Francisco, California Region, a hearing was
held before the undersigned on June 16, 1982 at San Francisco,
California.
This is a proceeding under the Federal Service Labor-Management
Relations Statute, 5 U.S.C. 7101 et seq. (herein called the Statute).
It is based on a charge filed on April 22, 1981 by National Treasury
Employees Union (herein called the Union) against U.S. Customs Service,
REGION VIII, San Francisco, California (herein called Respondent).
The Amended Complaint alleged, in substance, that on or about
February 17, 1981 the Union requested a copy of the crediting plan used
in connection with the evaluation of employee Robert Williams; that the
Union requested such plan of Respondent in connection with its
processing of a grievance over the non-selection of Williams for a
promotion; that such request was made in order for the Union to
evaluate and determine the merits of the grievance. It was further
alleged that on or about February 25, 1981 Respondent refused to provide
the aforesaid crediting plan as requested. By virtue of the foregoing,
it was alleged that Respondent failed to comply with Section
7114(b)(4)(A) and (B) of the Statute; that by such conduct Respondent
violated Section 7116(a)(1), (5) and (8) of the Statute.
Respondent's Amended Answer was filed on December 31, 1981. While
admitting its refusal to provide the Union with the crediting plan,
Respondent denied the commission of any unfair labor practices. It
raised therein three affirmative defenses: (1) The Union filed a
negotiability appeal (0-NG-250) with the Authority on January 23, 1980
and raised the issue of whether the agency was required to bargain re
the release of a crediting plan. Hence action under any other
procedure, including the instant proceeding, should be suspended pending
the outcome of the negotiability petition; (2) The national agreement
between the parties provides for the disclosure of crediting plans "when
and if appropriate authorities hold that it is not improper to do so."
Since the issue is before the Authority on the negotiability petition,
it must await a decision from the Authority as provided in the
agreement; (3) The Union filed a petition with the Merit Systems
Protection Board, Case No. HQ120500003, requesting a review of Federal
Personnel Manual Supplement 335-1, alleging its provisions denying
access to crediting plan violated 5 U.S.C. 2302(b)(1), (2), (4)-(7),
(10), and (11). On January 13, 1981 the said Board found the aforesaid
FPM Supplement was valid and rationally related to preventing unfair
advantage to any competing applicant or employee. On November 13, 1981
the Board held that this agency, by implementing the FPM Supplement, did
not require the commission of a prohibited personnel practice.
All parties were represented at the hearing. Each was afforded an
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter briefs /3/ were filed with the
undersigned which have been duly considered. /4/
Upon the entire record herein, and from all of the testimony and
evidence adduced at the hearing, I make the following findings and
conclusions:
Findings of Fact /5/
1. At all times material herein, the Union has been certified as the
exclusive representative of employees in the following bargaining units:
(a) All professional employees assigned to the Office of
Regulations and Rulings and the Headquarters Office and to Regions
II and IX of the U.S. Customs Service, excluding all
non-professional employees, all employees assigned to the Office
of Investigations, the Office of Management Integrity, and the
Office of the Chief Counsel; all other professional employees
assigned to Regions I, III, IV, V, VI, VII and VIII; management
officials; employees engaged in Federal personnel work in other
than a purely clerical capacity; confidential employees; guards;
and supervisors as defined in the Act.
(b) All non-professional employees assigned to the Office of
Regulations and Rulings and to the Headquarters Office and to
Regions I, II, III, IV, V, VI, VII, VIII and IX of the U.S.
Customs Service, excluding all professional employees; all
employees assigned to the Office of Investigations; the Office of
Management Integrity; and the Office of the Chief Counsel;
management officials; employees engaged in Federal personnel work
in other than a purely clerical capacity; confidential employees;
guards; and supervisors as defined in the Act.
2. At all times material herein the Union and Respondent have been
parties to a collective bargaining agreement covering the employees in
the aforesaid units. The said agreement was effective, by its terms, on
June 30, 1980 for a term of two years and provided for automatic renewal
under specified conditions.
3. The said collective bargaining agreement provides under Article
17 (MERIT PROMOTION) inter alia, as follows:
Section 7. A. The employer will utilize appropriate job
analysis techniques in establishing evaluation criteria which are
closely related to the principal duties of the position.
B. The employer will develop numerical crediting plans for the
use by Evaluation Boards in measuring the extent to which
candidates possess designated evaluation criteria as set forth in
the vacancy announcement. The crediting plans will include
various definitions or examples of experience, training,
education, personal characteristics and any other relevant factor
at each rating level. The applicant's background will be compared
against the crediting plan definitions for each of the evaluation
criteria to assess the degree to which he possesses the elements
being evaluated.
. . . .
D. All existing crediting plans will be disclosed to the union
when and if appropriate authorities told that it is not improper
to do so.
E. The crediting plans referred to in this section shall serve
as the sole basis for the Evaluation Board assessment of the
applicant's potential to serve in the vacant position.
Section 8. A. The employer will appoint an Evaluation Board of
three to five members to evaluate the potential of the candidates
to perform in the vacant position . . . .
. . . .
E. The board's evaluation shall be based upon the evaluation
criteria established by the employer for the vacant position.
. . . .
Section 17. A. In processing or investigating grievances
related to promotion actions taken pursuant to the provision of
this article, the grievant or his union representative, upon
request, will be provided with the evaluative materials utilized
or generated by the Evaluation Board in rating and ranking
qualified candidates subject to the following conditions:
(1) release of the documents or materials is not precluded by
law or the regulation of appropriate authority;
(2) such materials or document shall be properly sanitized to
protect the privacy of applicants and Board Members involved in
the promotion actions;
(3) if the grievance is confined to "Best Qualified" candidates
only the evaluative material of such candidates will
be
provided; and
(4) if the grievance involves "Qualified" candidates, the
evaluative material of all qualified and best qualified candidates
will be provided, but in no case will such information be provided
for more than the top seventy-five (75) candidates.
B. Challenges to the employer's actions in implementation of
sub-section A above shall be resolved under the grievance and
arbitration provisions provided in this agreement. /6/
4. On January 23, 1980 the Union filed a negotiability appeal
(0-NG-250) with the Federal Labor Relations Authority. The Authority
rendered its decision on February 3, 1983 in National Treasury Employees
Union and Department of the Treasury, U.S. Customs Service, Washington,
D.C., 11 FLRA No. 52. It held that proposals by the union, which
established a crediting plan by which qualifications of candidates for
unit positions would be evaluated against job requirements established
by management to determine the extent to which candidate is qualified,
is negotiable. /7/
5. On February 7, 1980 the Union filed a petition with the Merit
System Protection Board, Case No. HQ120500003 requesting review of
Federal Personnel Manual (FPM) Supplement 335-1. This section, entitled
"Evaluation of Employees for Promotion and Internal Placement,"
provides, inter alia, for the security of crediting plans, and requires
agencies to determine the degree of safety appropriate to maintain
control of materials. The Merit System Protection Board issued an
Opinion and Order on March 13, 1981 in which it determined that FPM
Supplement 335-1 S6 was not being invalidly implemented by Customs
Service.
6. The particularly relevant portions of FPM Supplement 335-1, S6-1,
are as follows:
Individuals responsible for the personnel measurement program
must clearly identify those examination materials (such as test
materials, rating guides, or crediting plans) which require
security and control, and ensure that proper security and control
are maintained. Instructions must be issued to maintain the
security and control of examination materials which, if exposed to
unauthorized persons, might provide unfair advantage to some
candidates or otherwise comprise the utility of the selection
procedure . . . . Material covered by the instructions must not
be exposed to any persons, including management officials, members
of employee organizations, or non-Federal personnel who do not
have an official need to see the material. No evaluation
procedure subject to security and control may be administered to
an employee who has had access to the covered material . . . .
7. On December 12, 1980 Respondent issued a Vacancy Announcement for
the position of Senior Customs Inspector, GS-1890-11, Announcement No.
R-62-80 IKM.
8. Thereafter Robert W. Williams, a bargaining unit employee,
submitted an application in connection with that merit promotion
announcement. Williams was not selected for the position.
9. On February 17, 1981 a grievance was filed by Union Steward Steve
Paskus on behalf of Williams for failing "to properly ranked among
eligibles for Senior Inspector. Vacancy R-62-80." As part of the
grievance the Union requested "all credibility materials and evaluative
material utilized or generated by the board in ranking the qualified
candidates on the Best Qualified List."
10. Under date of February 25, 1981 Sterl F. Miller, Respondent's
Director, Labor Relations Officer, wrote a letter to Steve Paskus
stating that the crediting plan could not be furnished. The refusal was
based on Federal Personnel Manual Supplement 335-1, Subchapter S6-1,
which deals with security of examination materials. As stated by Miller,
this requires that applicants not have access to this material and thus
gain an advantage and, further, that the integrity of the selection
process not be compromised.
11. In a letter dated March 20, 1981 Miller sent Paskus, in respect
to the request of the Union set forth in the grievance, evaluation
materials utilized or generated by the Customs Career Evaluation Board,
except for the crediting plan. (Stipulation clause No. 17). The
materials sent as enclosures in said letter were as follows:
(a) sanitized selection register listing best qualified
candidates referred to the selecting official.
(b) sanitized Evaluation Board Tally Sheet listing all
applicant's scores and the cut-off score between the best
qualified and highly qualified.
(c) rating sheet used to tally the grievant's ranking by the
Customs Career Evaluation Board.
(d) sanitized copies of competing employees' applications,
continuation sheets attached to applications, performance
appraisals, and appraisals of promotion.
(e) copies of any questionnaire used in connection with the
Vacancy Announcement and sanitized responses thereto.
12. In addition to the foregoing, documents or information available
to a grievant or the Union in connection with an allegation of improper
ranking or certification include but are not limited to:
(a) Customs Merit Promotion Plan.
(b) Vacancy Announcement for a particular position.
(c) The Customs-NTEU National Agreement.
13. Under date of April 9, 1981 Respondent's Regional Commissioner
Edward M. Ellis wrote Paskus a third step grievance letter denying the
grievance filed on February 17, 1981.
14. The crediting plan in merit promotion action R-62-80 was created
after July 1, 1980. In the instant case it is maintained by the Customs
Service Staffing Branch, San Francisco Regional Office, and is
approximately three pages in length.
15. The Customs Career Evaluation Board is composed of three to five
persons. A representative from the servicing personnel office will
always participate on the Board, along with at least two "subject matter
experts" who are employees knowledgeable about the position under
consideration.
On occasion, unit employees familiar with the occupation may
participate as "subject matter experts" on the Board. Employees on the
Board must be in a position preventing them from competing in the future
for the position under consideration. It is emphasized they are
performing a management function and must maintain the confidentiality
of the proceeding and the crediting plan. Copies of the plan are not
retained by any Board member. When a vacancy is to be filled under the
Merit Promotion Plan in Region VIII, of the U.S. Customs Service, the
Board utilizes a crediting plan for each vacancy under consideration.
The crediting plan is used to evaluate the applicant's experience,
training, and achievement through a review of each employee's
application, supervisory appraisals of performance and potential, and
any other pertinent documents submitted.
16. The crediting plan is used to measure the extent and/or degree
to which candidates possess the evaluation criteria (sometimes
identified as primary and secondary criteria) in the Vacancy
Announcement. The primary and secondary criteria identify essential
elements necessary for job performance in a particular position. If,
for example, the ability to speak in public is considered a primary
criteria for the job, then the crediting plan would be used to determine
if the applicant has the required knowledge, skills, abilities, and
personal characteristics justifying a certain grade, such as A, B, or C,
by giving the applicant credit for certain types of speaking experience.
The knowledge, skills, abilities and personal characteristics are
determined by referring to the information in Customs Form 67
(application, /8/ 188 (performance appraisal) /9/ and 189 (supervisory
appraisal of potential) /10/ and any appropriate attachment to CF 67,
such as answers to questions in the vacancy announcements and
supplements, and, on occasion, information from the Official Personnel
File.
The above information is compared with the crediting plan to
determine the degree or level to which the applicants possess the
knowledge, skills, abilities, and personal characteristics and a rating
or grade is assigned to each criterion. For example, to obtain an A
under the 'ability to speak in public', an applicant must have regularly
spoken as an instructor or keynote speaker on a complex subject. In
another example, if one of the primary criteria was the ability to
analyze, in order to obtain an A rating, the candidate must demonstrate
the ability to research complex multifaceted issues requiring
interpretation, utilizing a wide variety of research materials such as
regulations, policy issues, and Comptroller General decisions. This
would be contrasted in the crediting plan with the employee who would
receive a B or C rating because he or she could only demonstrate the
ability to research simple questions using a limited amount of material
and where the answers are clear cut.
This letter rating is translated to a numerical value (e.g., A=3) and
the Best Qualified List is then compiled according to these scores.
Therefore, the credit which is ascertained from the knowledge, skills,
abilities and personal characteristics will determine the make-up of the
Best Qualified List. The list of those rated best qualified is then
forwarded to the selecting official for consideration.
17. No employee may grieve non-selection from a properly ranked and
certified Best Qualified List. It is the burden of the aggrieved
employee to demonstrate that the Best Qualified List in question was not
properly ranked and certified, or that non-competitive and/or non-merit
factors were used in constructing it.
18. Under date of February 12, 1982 OPM Assistant Director for
Staffing, William R. Irvin, wrote Respondent's Counsel, Gary B.
Landsman, a letter re the releasing of the crediting plan. Irvin stated
that OPM had concluded certain portions of the crediting plan for Senior
Customs Inspector GS-1890-11, San Francisco Region, should not be
released, i.e., "those portions of the crediting plan containing
narrative descriptions of specific duties and/or tasks which would be
credited at a particular level." The basis for OPM's recommendation was
the possibility that applicants could slant or tailor their experience
to fit the narrative description. Moreover, it was felt that in many
areas verification could not be obtained of the information set forth by
the applicant.
19. In conformance with the advice from OPM, the Respondent sent the
Union on May 25, 1982 a sanitized copy of the crediting plan for the
aforesaid position.
20. The crediting plan, /11/ which is the subject of the dispute
herein and has not been released, contains three pages and is entitled
"Crediting Plan, Senior Customs Inspector, GS-1890-11, PD 111-1157."
Four criteria are specified in the plan: (a) Knowledge of Customs laws
and regulations and laws of other government agencies; (b) Ability to
deal with a variety of individuals; (c) Ability to communicate orally;
(d) Ability to communicate in writing. Under each criterion are listed
various experiences used as a measurement to determine the knowledge,
skills, and abilities of an applicant, and which, in each instance, will
support a rating of either "excellent", "good", or "satisfactory".
Certain experiences set forth under each criterion were stricken by
Respondent and not included in the sanitized crediting plan.
Conclusions
In asserting that Respondent violated the Statute by not furnishing
the crediting plan to the Union, the General Counsel relies upon Section
7114(b)(4)(A), (B) and (C) thereof. That statutory language specifies
that the duty to negotiate in good faith includes an obligation, on the
part of an agency, to furnish the exclusive representative, upon
request, and to the extent not prohibited by law, data--
(A) which is normally maintained by the agency in the regular
course of business;
(B) which is reasonably available and necessary for full and
proper discussion, understanding, and negotiation of subjects
within the scope of collective bargaining; and
(C) which does not constitute guidance, advice, counsel, or
training provided for management officials or supervisors,
relating to collective bargaining.
General Counsel insists that the crediting plan, which is clearly
maintained by Respondent in the normal course of business, is necessary
and relevant to the Union's representational activities. In particular,
it is contended that the Union requires the plan in order to determine
whether the bargaining agent should investigate the nonselection of
Williams as Senior Customs Inspector and perform its duties as such
representative. Since the crediting plan contains evaluation criteria
used by the Customs Career Evaluation Board to measure the extent to
which candidates possess requisite qualifications for promotion, General
Counsel argues it is unlikely the Union could prevail in a grievance
without access to the plan. Further, it is contended the disclosure of
the crediting plan is not prohibited by law or regulation, and that no
bar exists to the furnishing of the requested information.
Respondent takes issue with the foregoing contentions. In so doing,
it raises various defenses, including (1) the Privacy Act permits the
agency to exempt the crediting plan from disclosure; (2) FPM Supplement
335-1 is a governing regulation which mandates non-disclosure of
crediting plans when their exposure might provide unfair advantage to
some candidates or otherwise compromise the utility of the selection
procedure-- all of which would occur herein; (3) an FLRA decision
mandating the release of the crediting plan would require Respondent to
commit a violation of a prohibited personnel practice as set forth in 5
U.S.C. 2302(b)(6); (4) The crediting plan sought by the Union was not
necessary and relevant to carry out its representational duties; (5)
filing of a negotiability appeal in Case No. 0-NG-250 constitutes an
election of procedures under 5 CFR 2424.5 and bars the unfair labor
practice charge; (6) under the collective bargaining agreement between
the parties the Union was required, as set forth in Article 17, Section
17 A and B, to resolve this dispute under the grievance and arbitration
procedure.
The basic issue presented herein is as follows: whether, under the
circumstances herein-- including the OPM regulation referred to, as well
as the contractual clause set forth in Article 7 of the collective
bargaining agreement-- Respondent was required to furnish the Union with
a copy of the unsanitized crediting plan.
It is quite clear that in the public sector Section 7114(b)(4) of the
Statute imposes an obligation upon management to furnish a union with
information enabling the latter to carry out its representational duties
during the processing of a grievance. The employer must turn over
material which is necessary and relevant concerning a unit employee's
nonselection for promotion under negotiated merit promotion procedures.
Refusal to do so is violative of Section 7116(a)(1) and (5) of the
Statute. U.S. Customs Service, Region VII, Los Angeles, California, 10
FLRA No. 47 (1982). See also, Bureau of Alcohol, Tobacco and Firearms,
National Office and Western Region, San Francisco, California, 8 FLRA
No. 108 (1982); Veterans Administration Regional Office, Denver,
Colorado, 7 FLRA No. 100 (1980). Thus, absent any prohibition by law or
special defense which may be recognized by the Authority, a union is
entitled to data which is relevant and necessary to perform
representational duties, including the processing of a grievance.
While not addressing the precise issue raised herein, the Authority
has had occasion to consider several cases recently involving a
crediting plan. Thus, in National Treasury Employees Union and NTEU
Chapters 153, 161, and 183 and U.S. Customs Service, Region II, 11 FLRA
No. 47, (1983), the Authority was confronted with a negotiability issue
regarding a crediting plan for an Import Specialist proposed by the
union. It held that the proposals for such a plan were negotiable;
that they would only establish criteria for more precisely evaluating
experience and education of qualified candidates; that such crediting
plan would not prevent management from exercising its discretion to hire
employees. /12/
In Department of the Treasury, U.S. Customs Service, Region VIII, San
Francisco, California, 13 FLRA No. 105 (1984), which involved the same
parties as herein, the union requested management's crediting plan to
determine whether to process a grievance on behalf of an employee denied
a promotion to Customs Inspector. The Customs Service refused to
provide a copy of the plan, citing Article 17, Section 7(D) of the
negotiated agreement, which stated that "All existing crediting plans
will be disclosed to the union when and if appropriate authorities hold
that it is not improper to do so." The union therein filed a grievance
under said agreement over the failure by management to provide the
information as a blatant breach of the contract. The Authority
concluded that the issue raised by the complaint was the same as the one
posed by the grievance-- the failure to disclose the crediting plan. It
stated as follows:
"Thus, the Authority finds that the Union's prior invocation of
the grievance procedure under the parties' negotiated agreement
regarding the non-release of information, including the subject
crediting plan, constituted an election of that procedure under
the section 7116(d) of the Statute, thereby precluding such issue
from being raised subsequently as an unfair labor practice."
Whereupon the Authority dismissed the complaint in the Department of the
Treasury, U.S. Customs Service, Region VIII, San Francisco, California,
supra, but declared it did so without passing upon whether management is
obligated, under 7114(b)(4), to disclose crediting plans under
appropriate circumstances. /13/
It seems apparent that the crediting plan may well be relevant and
necessary for the Union herein to properly perform its representational
functions, i.e. the processing of the grievance on behalf of Williams
based on his nonselection for promotion. Notwithstanding such a
conclusion, serious doubts concerning Respondent's obligation to furnish
the unsanitized crediting plan are raised by virtue of Article 17,
Section 17 A and B of the negotiated agreement herein. Under 17A the
employer has undertaken to provide the Union, in the processing or
investigation of a grievance related to promotion action, certain data
which is utilized or generated by the Evaluation Board in rating and
ranking qualified candidates. Specifically, the agreement provides that
the data to be so provided will be evaluative materials so utilized or
generated by the Board. Further, under 17B, all challenges to the
employer's actions in implementing 17A, shall be resolved under the
grievance and arbitration provision of the negotiated agreement.
The aforesaid contractual provisions raise the question squarely as
to whether, based on the agreement of the parties, the dispute herein
should be handled via the grievance-- arbitration procedures. This
issue was faced by the National Labor Relations Board in the private
sector in Collyer Insulated Wire, et al., 192 NLRB No. 150 (1971).
Certain unilateral changes by management formed the basis of a refusal
to bargain complaint against the employer. Included within the
collective bargaining agreement, between the employer and the union, was
a clause providing for the resolution of any disputes with the
corporation by means of the grievance/arbitration machinery established
thereunder. The Board dismissed the complaint. It concluded, inter
alia, as follows:
"When the parties have contractually committed themselves to
mutually agreeable procedures for resolving their disputes during
the period of the contract, we are of the view that those
procedures should be afforded the opportunity to function" (pp.
842-843).
The facts in the cited case presented not only an alleged violation
of the National Labor Relations Act but an alleged breach of the
collective bargaining agreement subject to arbitration. They posed an
accommodation, on the Board's part, between favoring full use of
collective bargaining and the arbitral process, on the one hand, and the
policy of Congress granting to the Board exclusive jurisdiction to
prevent unfair labor practice on the other hand. In favoring deferral
to the grievance/arbitration process, as agreed to by the parties, the
Board adhered to its rationale enunciated in Jos. Schlitz Brewing
Company, 175 NLRB No. 23 ( . . . ). The latter case likewise involved a
departure from an existing practice which resulted in an unfair labor
practice charge being filed by the bargaining agent. The Board
acknowledged the fact that the parties set up, in the contract,
grievance and arbitration machinery broad enough to resolve disputes,
such as whether the employer was privileged to make changes under the
contract. Moreover, the unilateral action, observed the Board, was not
undertaken to undermine the union. Accordingly, the particular case was
deemed appropriate for deferral to arbitration. /14/
No decisional law exists in the public sector which has passed
directly on the issue involved herein. However, the undersigned is
persuaded that the parties to the present collective bargaining
agreement should be required to abide by the commitment expressed
therein. A review of Article 17, Section 17 A and B persuades me,
moreover, that the set of facts in the case at bar fall squarely within
such contractual provisions; and that the dispute with respect to
supplying the crediting plan to the Union should be, as agreed upon by
the parties, handled through the grievance/arbitration machinery
established in the contract.
Adverting to the particular provisions of the agreement, it is noted
that Article 17, Section 17A specifically refers to the furnishing of
"evaluative materials," in processing or investigating grievance related
to promotion actions, which are utilized by the Evaluation Board in
rating and ranking candidates. This language clearly deals with the
disclosure of such materials during a grievance concerning a promotion.
It mandates that, as here, the Respondent turns over such data to the
Union when one grieves over not being promoted. In respect to this
particular provision being applicable herein, General Counsel argues
that it is questionable whether a crediting plan falls within the term
"evaluative material." I disagree. The crediting plan, as conceded,
contains evaluative criteria used by the Evaluation Board to measure the
extent and/or degree to which candidates possess the requisite
qualifications for promotion. It is apparent from the record herein,
and stipulated to by the parties, that the crediting plan is used to
evaluate the applicant's experience, training, and achievements through
a review of the application, supervisory appraisals and other pertinent
documents which are submitted. The record facts demonstrate quite
clearly that the crediting plan is the foundation for comparative
evaluation of an applicant's rating. As such, I am convinced that it
comes within the term "evaluative materials" utilized or generated by
the Board in ranking candidates for promotion. /15/
Finally, General Counsel avers that, at best, the term "evaluative
materials" is ambiguous or subject to contract interpretation. It
contends that the term does not clearly include crediting plans and one
may argue that such a plan is not embraced under "evaluative materials."
Assuming arguendo that such contention was meritorious, it would lend
further support for the conclusion that the matter be resolved via the
grievance/arbitration process. The Authority has repeatedly expressed
the view that where a dispute involves contract interpretation it should
be resolved through the contractual grievance and arbitration
procedures. Such resolution channel would be appropriate rather than
the unfair labor practice route. Harry S. Truman Memorial Veterans
Hospital, Columbia, Missouri, 11 FLRA No. 90 (1983); Iowa National
Guard, et al., 8 FLRA No. 101 (1982).
Accordingly, and based on the foregoing, I am satisfied that, to the
extent expressed in Article 17, Section 17 A and B of the negotiated
agreement, the Union has waived its right to protest the non-disclosure
of the crediting plan via this unfair labor practice proceeding. The
undersigned is satisfied that, under these contractual provisions, the
parties intended to resolve a dispute re the non-disclosure of the
crediting plan, in connection with a grievance involving a non-selection
for promotion, through the arbitration machinery. Moreover, the
language did not make the use of this machinery optional, for the
agreement specifically stated that such dispute shall be so resolved.
Thus, I am constrained to conclude that the dispute herein, which
concerned the failure by Respondent to furnish its unsanitized crediting
plan to the Union in connection with the nonselection of Williams for
promotion to Senior Inspector, should have been resolved by means of the
contractual arbitration process. Based on that conclusion, I find that
Respondent did not violate Section 7116(a)(1) and (5) of the Statute by
failing and refusing to furnish the Union the said crediting plan.
Having concluded for the reasons set forth above that Respondent did
not violate the Statute as alleged, it is hereby recommended that the
Authority issue the following:
ORDER
The Amended Complaint in Case No. 9-CA-993 be, and the same hereby
is, DISMISSED.
WILLIAM NAIMARK
Administrative Law Judge
Dated: March 27, 1984
Washington, DC
--------------- FOOTNOTES$ ---------------
/1/ In adopting the Judge's conclusion that the Union had
contractually waived its right to file an unfair labor practice charge
over the Respondent's non-disclosure of a crediting plan, the Authority
specifically does not adopt the Judge's discussion with regard to the
private sector doctrine of deferral to negotiated arbitration procedures
enunciated by the National Labor Relations Board in Collyer Insulated
Wire, A Gulf and Western Systems Co., 192 N.L.R.B. 837 (1971). See
section 7116(d) of the Statute. See also Federal Aviation
Administration, Spokane Tower/Approach Control, 15 FLRA No. 135 (1984).
/2/ In a letter dated February 27, 1984 Allan L. Martin, Esq.
requested the Regional Director, Region IX, San Francisco, California to
enter his appearance herein in place of Gary Landsman as representative
of record.
/3/ The Office of Personnel Management was granted a request to file
an amicus curiae brief in the instant case. A brief was so filed on
October 29, 1982.
/4/ In its Reply Brief the Union contended that Respondent's counsel
discussed the contents of the crediting plan in its Brief contrary to an
agreement at the hearing not to refer to such contents. The Union made
a request "to strike the references from the record." The request is
denied. I do not deem the comments in Respondent's brief as "discussing
the crediting plan's contents or referring to them in any greater depth
than was known or described by the undersigned.
/5/ Factual findings are also based on a Stipulation of Facts between
the parties which was read into the record at the hearing and is
contained in the transcript herein.
/6/ Article 31 of the bargaining agreement, which is entitled
GRIEVANCE PROCEDURE, contains provisions for the processing and
disposition of grievances. Section 3 thereof provides, inter alia, that
a grievance means any complaint: "(3) By any employee within the
bargaining unit, by the union, or by the employer concerning: (a) The
effect or interpretation, or a claim of breach, of this agreement; . .
. "
/7/ The Authority also held union proposals establishing crediting
plans for merit promotions constituted a negotiable procedure. See
National Treasury Employees Union and NTEU, Chapters 153, 161 and 183
and U.S. Customs Service, Region II, 11 FLRA No. 47. It was also found
by the Authority that disclosure of crediting plans was not inconsistent
with FPM Supplement because if all candidates had equal access to the
plan, no candidate would be disadvantaged nor would the selection
process by comprised.
/8/ Joint Exhibit 4(a).
/9/ Joint Exhibit 4(b).
/10/ Joint Exhibit 4(c).
/11/ The unsanitized crediting plan involved herein was submitted to
the undersigned in camera at the hearing. It is forwarded, along with
the entire record herein, to the Authority in a sealed envelope for its
consideration in the disposition of this case.
/12/ In conjunction with its holding re the negotiability of the
crediting plan proposals, the Authority stated that the content of
crediting plans can be released consistent with FPM Supplement 335-1,
S6, if the release would not create unfair advantages to some candidates
or compromise the selection process. The Authority concluded, in the
aforesaid case, that it did not appear such advantage or compromise
would result from a disclosure of the crediting plans set forth in the
union's proposals.
/13/ Neither recent case involving crediting plans is dispositive of
the issue raised herein. The earlier decision (11 FLRA No. 47) dealt
with the negotiability of such a proposed plan and was not concerned
with the issues posed by Respondent in the case at bar. The other
decision (13 FLRA No. 105) dealt with an election of remedies by the
union and the filing of a grievance, under the contract, by reason of
not receiving the crediting plan. In the instant case the Union did not
file a grievance based on management's failure or refusal to furnish the
crediting plan. Accordingly, it cannot be concluded that the Union
herein had made an election of remedy and was barred under Section
7116(d) of the Statute from alleging the failure or refusal by
management as an unfair labor practice.
/14/ The undersigned is aware that, in the private sector, the
Collyer doctrine was not embraced absolutely in all subsequent cases.
Further, that the various Board members disagreed at times with respect
to its applicability. Moreover, in instances where individual
discrimination occurred, the Board refused to defer to arbitration
despite contractual provisions in that regard. Nevertheless, the
undersigned feels compelled to outline the rationale set forth in said
doctrine relegating the parties to their agreed upon
grievance/arbitration procedure to resolve disputes involving collective
bargaining.
/15/ General Counsel adverts to Article 17, Section 7 which states
that existing crediting plans will be disclosed to the union if
appropriate authority endorse such release. It is argued that if the
parties intended the grievance/arbitration provision of Section 17 to
cover the release of the crediting plan, no logical explanation appears
as to why they included Section 7. I find no inconsistency in the
existence of these clauses. Section 7 is a general provision re
furnishing crediting plans which, per se, may relate to requests
involving bargaining on various working conditions. Had Section 17
referred merely to disputes re promotion requiring resolution via
grievance/arbitration, some merit might be awarded to General Counsel's
argument. However, this section does not negate the inclusion of
crediting plans within the term "evaluative materials," but seeks to
embrace them within the latter term when sought in connection with a
promotion dispute resulting in a grievance.