[ v13 p631 ]
13:0631(105)CA
The decision of the Authority follows:
13 FLRA No. 105
DEPARTMENT OF THE TREASURY,
U.S. CUSTOMS SERVICE, REGION VIII,
SAN FRANCISCO, CALIFORNIA
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 9-CA-842
DECISION AND ORDER
This matter is before the Authority pursuant to the Regional
Director's "Order Transferring Case to the Federal Labor Relations
Authority" in accordance with section 2429.1(a) of the Authority's Rules
and Regulations.
Upon consideration of the entire record in this case, including the
parties' stipulation of facts and accompanying exhibits, briefs
submitted by the General Counsel, the Charging Party, the Respondent,
and the Office of Personnel Management (OPM) as amicus curiae, /1/ and
the replies to the amicus curiae brief submitted by the General Counsel
and the Charging Party, /2/ the Authority finds:
The complaint herein alleges that the Respondent violated section
7116(a)(1), (5) and (8) of the Federal Service Labor-Management
Relations Statute (the Statute /3/ by failing to comply with the
requirements of section 7114(b)(4) of the Statute /4/ by refusing to
furnish necessary and relevant information requested by the National
Treasury Employees Union (the Union) in order for it to determine
whether to grieve on behalf of an employee in a promotion action.
Pursuant to Vacancy Announcement No. R-41-80 KV, unit employee Harry
Williams submitted an application for the position of Customs Inspector,
GS-1890-5. After Williams was not selected for the promotion, he sought
the assistance of Union Steward Raymond Laing to grieve this action. On
November 19, 1980, Laing requested information from the Respondent
concerning the subject merit promotion action so that he could
investigate the possibility of filing a grievance on behalf of Williams.
The list of items requested included a copy of the crediting plan used
to rand the applicants for the subject vacancy, /5/ as well as other
documents used or generated by the Evaluation Board. On December 10,
1980, the Union filed a grievance under the parties' negotiated
agreement over the Respondent's failure to respond to its request for
information. The grievance alleged that management's "failure to
provide this information is a blatant breach of the contract . . .," and
specifically requested as a remedy "that the information requested in
our letter of November 19, 1980 be immediately forthcoming." On December
29, 1980, the Respondent provided to Laing all of the documents used or
generated by the Evaluation Board, but refused to provide a copy of the
crediting plan, citing as the basis for its refusal Article 17, Section
7(D) of the parties' negotiated agreement, which provides 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." On
January 5, 1981, Laing requested that the Respondent reconsider its
decision not to disclose the subject crediting plan. On January 16,
1981, the Respondent replied, reiterating the reasons why it would not
disclose the crediting plan. The Union did not take the grievance to
the next step of the parties' negotiated grievance procedure.
Thereafter, the charge in this proceeding was filed by the Union.
Section 7116(d) of the Statute provides in pertinent part:
(I)ssues which can be raised under a grievance procedure may,
in the discretion of the aggrieved party, be raised under the
grievance procedure or as an unfair labor practice under this
section, but not under both procedures. (Emphasis added.)
In the Authority's view, the issue which is the subject matter of the
instant complaint is the same as that which is the subject matter of the
grievance; that is, the Respondent's failure to disclose the subject
crediting plan. 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
section 7116(d) of the Statute, thereby precluding such issue from being
raised subsequently as an unfair labor practice. Internal Revenue
Service, Chicago, Illinois, 3 FLRA 479(1980). See also Department of
the Air Force, Griffiss Air Force Base, Rome, New York, 12 FLRA No. 50
(1983), wherein the Authority adopted the Judge's conclusion that,
pursuant to section 7116(d) of the Statute, a grievance filed three days
before the charges underlying a portion of the unfair labor practice
complaint precluded further processing of the latter inasmuch as both
the grievance and the charges alleged that management had violated the
parties' agreement by recouping certain monies from the current amount
of withheld union dues in management's possession and therefore the
issues appeared to be the same.
Accordingly, the Authority shall dismiss the instant complaint,
without passing upon whether management is obligated under section
7114(b)(4) of the Statute to disclose crediting plans to the Union in
appropriate circumstances. /6/
ORDER
IT IS ORDERED that the complaint in Case No. 9-CA-842 be, and it
hereby is, dismissed in its entirety.
Issued, Washington, D.C., January 13, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ OPM was granted permission to participate in this proceeding as
amicus curiae pursuant to section 2429.9 of the Authority's Rules and
Regulations.
/2/ The replies by the General Counsel and the Charging Party both
urge the Authority to reject or disregard positions contained in the
amicus curiae brief that are based on questions of fact outside the
stipulated record. In reaching its decision in the instant case, the
Authority has considered only facts contained in the stipulated record.
The Respondent subsequently submitted a Motion to File Supplemental
Brief, attaching thereto a Supplemental Brief that asserted the
relevance and significance of an FPM Letter which was issued by OPM
after the period for filing briefs had passed. Both the General Counsel
and the Charging Party filed oppositions to the Respondent's motion. In
view of the disposition of the instant case, the Authority finds it
unnecessary to rule on the Respondent's motion or to consider its
Supplemental Brief.
/3/ Section 7116(a)(1), (5) and (8) of the Statute provides:
(a) For the purpose of this chapter, it shall be an unfair labor
practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
* * * *
(5) to refuse to consult or negotiate in good faith with a labor
organization as required by this chapter;
* * * *
(8) to otherwise fail or refuse to comply with any provision of this
chapter.
/4/ Section 7114(b)(4) of the Statute provides:
(b) The duty of an agency and an exclusive representative to
negotiate in good faith under subjection (a) of this section shall
include the obligation--
* * * *
(4) in the case of an agency, to furnish to the exclusive
representative involved, or its authorized 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(.)
/5/ When a vacancy is to be filled under the Merit Promotion Plan in
Region VIII of the U.S. Customs Service, the Customs Career Evaluation
Board utilizes a crediting plan for each vacancy under consideration.
The crediting plan is used to evaluate the applicant's experience,
training, achievements, supervisory appraisals of performance, and
supervisory appraisals of potential. The crediting plan in the instant
case is a five page document which establishes the amount of credit
given to an applicant for each item listed as primary criteria in the
Vacancy Announcement. The crediting plan describes the degree of
knowledge, skills, abilities, and personal characteristics which justify
an A, B, or C rating for each of the primary criteria. The letter
rating for each is translated to a numerical value and totaled. The
applicants are ranked and those with the highest scores are placed on
the Best Qualified List. The list is then forwarded to the selecting
official.
/6/ But see National Treasury Employees Union and NTEU Chapters 153,
161 and 183 and U.S. Customs Service, Region II, 11 FLRA No. 47 (1983),
appeal; docketed, No. 83-4056 (2d Cir. April 1, 1983), involving the
same parties, wherein the Authority noted that "the content of crediting
plans can be released consistent with subchapter S6 of FPM Supplement
335-1 if the release would not create any unfair advantage to some
candidates or compromise the utility of the selection process." See also
National Treasury Employees Union and Department of the Treasury, U.S.
Customs Service, Washington, D.C., 11 FLRA No. 52 (1983), appeal
docketed, No. 83-1355 (D.C. Cir. April 4, 1983).