[ v26 p832 ]
26:0832(98)CA
The decision of the Authority follows:
26 FLRA No. 98
DEPARTMENT OF THE INTERIOR
WASHINGTON, D.C. AND
BUREAU OF RECLAMATION
LOWER COLORADO DAMS PROJECT
BOULDER CITY, NEVADA
Respondents
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1978
Charging Party
Case No. 9-CA-40223
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
to the attached Administrative Law Judge's Decision filed by the
Department of the Interior. The General Counsel filed an opposition to
the exceptions. /*/ The complaint alleged that the Respondent Bureau of
Reclamation violated section 7116(a)(1), (5) and (8) of the Federal
Service Labor-Management Relations Statute (the Statute) by refusing to
provide the Charging Party (the Union) with copies of crediting plans
which the Union sought pursuant to section 7114(b)(4) of the Statute in
connection with the negotiation of proposed changes in merit promotion
procedures. The complaint further alleged that the Respondent
Department of the Interior violated section 7116(a)(1) and (5) of the
Statute by directing the Respondent Bureau of Reclamation to refuse the
Union's request.
II. Facts
The Bureau of Reclamation's Merit Promotion Plan is incorporated by
reference in its collective bargaining agreement with the Union. The
Bureau submitted a revised Plan to the Union for negotiation pursuant to
the parties' agreement. The Union requested to bargain concerning the
revised Plan and submitted proposals, including a proposal to negotiate
with respect to crediting plans. The Bureau's crediting plans, which
are used in the rating and ranking of applicants, were not changed by
the proposed revision of the Merit Promotion Plan. Management's
representative at the bargaining table declared that crediting plans
were nonnegotiable. The Union then requested copies of the crediting
plans to formulate specific bargaining proposals concerning the
crediting plans themselves and to ensure that the plans were protected
from changes which might result in preselection, favoritism or other
violations of the Merit Promotion Plan. The Bureau refused to provide
the Union with copies of the crediting plans despite Union assurances
that it would safeguard the confidentiality of the plans and suggestions
as to how that protection might be accomplished. The parties stipulated
that the Respondent Bureau was directed to refuse the Union's request by
the Respondent Department of the Interior.
III. Administrative Law Judge's Decision
The Judge concluded that because the Bureau of Reclamation was acting
on the instructions of the Department of the Interior, the Bureau did
not commit an unfair labor practice as alleged in the complaint. The
Judge therefore recommended that the complaint against the Bureau be
dismissed.
However, the Judge concluded that the Department of the Interior
violated section 7116(a)(1) and (5) of the Statute by directing the
Bureau to withhold the crediting plans from the Union. In reaching this
conclusion, the Judge found, based on Authority precedent at the time of
his decision, that the substance of the crediting plans was negotiable.
The Judge also found that the use of crediting plans was an integral
part of the application of the Merit Promotion Plan. The Judge
therefore determined that the Union was entitled to the crediting plans
under section 7114(b)(4) of the Statute to enable the Union to pursue
its bargaining rights with respect to both the crediting plans and the
Merit Promotion Plan. The Judge rejected the Respondent's arguments
that disclosure of the crediting plans would interfere with management's
rights under section 7106(a) of the Statute and would compromise the
integrity of the plans contrary to Federal Personnel Manaul (FPM)
Supplement 335-1, subchapter S6.
IV. Positions of the Parties
The Respondent Department of the Interior essentially argues that the
Judge erred in finding that crediting plans are negotiable and that the
Bureau of Reclamation was required to provide copies of the plans to the
Union pursuant to section 7114(b)(4) of the Statute. The Respondent
Department argues that the Union requested copies of the crediting plans
in an effort to negotiate concerning the content of the plans; and that
the content of the crediting plans is nonnegotiable because it involves
the exercise of management's rights under section 7106(a)(2)(B) and (C)
of the Statute to determine its personnel and to make selections for
appointment. The Respondent also contends that FPM Supplement 335-1,
subchapter S6, precludes the disclosure of the crediting plans because
such disclosure would compromise the integrity of the plans. The
Department further argues that the Judge erred in concluding that
crediting plans were necessary for the Union to negotiate regarding
changes in the Merit Promotion Plan. The Department maintains that
while the crediting plans are used in the merit promotion process, the
proposed changes in the Merit Promotion Plan did not affect the
crediting plans and that the information was not necessary for the Union
to bargain over the changes.
The General Counsel contends that while the crediting plans were not
changed by the Bureau's proposed revision of the Merit Promotion Plan,
the substance and application of the crediting plans constitute a
critical component of the merit promotion system and that they cannot
and should not be separated from the parties' negotiated Merit Promotion
Plan. The General Counsel argues that only by ensuring fairness of the
crediting plans can the Union ensure fair application of the Merit
Promotion Plan. The General Counsel further argues that the Union's
request for copies of the crediting plans was based only in part on a
desire to negotiate concerning the content of the plans. The General
Counsel points out that the Union also sought the plans to protect them
from improper changes. In conclusion, the General Counsel maintains
that the Union was entitled to copies of the crediting plans to enable
the Union to effectively negotiate concerning the plans; to police and
administer provisions in the parties' negotiated agreement which specify
certain requirements for crediting plans; and to intelligently assess
potential grievances.
V. Analysis
We must disagree with the Judge's finding that crediting plans are
negotiable. The decisions of the Authority the Judge relied on to
support his finding were reversed on appeal. Department of the
Treasury, U.S. Customs Service v. FLRA, 762 F.2d 1119 (D.C. Cir. 1985),
reversing National Treasury Employees Union and Department of the
Treasury, U.S. Customs Service, Washington, D.C., 11 FLRA 247 (1983);
U.S. Customs Service, Region II v. FLRA, 739 F.2d 829 (2d Cir. 1984),
reversing National Treasury Employees Union and NTEU Chapters 153, 161
and 183 and U.S. Customs Service, Region II, 11 FLRA 209 (1983). The
Authority subsequently concurred in the result reached by the courts in
those cases as to the negotiability of the content of crediting plans
and determined that the content of such plans is not within the duty to
bargain. The Montana Air Chapter of Association of Civilian Technicians
and U.S. Department of the Air Force, Montana Air National Guard, 19
FLRA 946 (1985).
In this case, one of the purposes of the Union's request for the
Respondent Bureau's crediting plans was to negotiate regarding their
content. Section 7114(b)(4)(B) of the Statute provides for release of
information to an exclusive representative that is "necessary for full
and proper discussion, understanding, and negotiation of subjects within
the scope of collective bargaining(.)" Since the content of crediting
plans is not within the duty to bargain, we conclude that the
information is not "necessary" within the meaning of section
7114(b)(4)(B) and, therefore, that the Union is not entitled to the
Bureau's plans to pursue its stated purpose of negotiating regarding
their content.
Moreover, in National Treasury Employees Union and Department of the
Treasury, U.S. Customs Service, 23 FLRA No. 91 (1986), we held that a
proposal which would require disclosure of the agency's crediting plans
to the union on request was nonnegotiable. We determined that the
proposal was inconsistent with FPM Supplement 335-1, a Government-wide
regulation, because the proposal would authorize a blanket disclosure of
crediting plan information without regard to whether the release of that
information would undermine the fairness and validity of selection
procedures. Slip op. at 3. Similarly, we find that in the
circumstances of this case the Union is not entitled to the blanket
disclosure of all of the Respondent's crediting plans on request. While
the Judge found that there was no evidence submitted to support the
Respondent's contention that release of the plans to the Union would
compromise the integrity of the plans, that finding does not establish
the Union's need for the information under section 7114(b)(4) of the
Statute.
In that regard, we disagree with the Judge's finding that the
Bureau's crediting plans are necessary for the Union to negotiate with
respect to the revised Merit Promotion Plan. No changes were made or
proposed in the crediting plans. While crediting plans may be used in
the selection process, there is no evidence that the Union needs the
plans to negotiate procedures or requirements concerning their use.
Moreover, contrary to the contention of the General Counsel, we find
that the crediting plans were not needed at the time of the Union's
request to police and administer the parties' collective bargaining
agreement or to assess potential grievances. We have held that an
exclusive representative may obtain copies of specific crediting plans
under section 7114(b)(4) of the Statute where the information is
necessary for the union to effectively carry out its representational
responsibilities in monitoring and enforcing rights under a negotiated
agreement in certain situations, for example, in processing a grievance
concerning a particular selection action. Department of the Army,
Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North
Carolina, 26 FLRA No. 52 (1987); United States Department of
Argiculture, Animal and Plant Health Inspection Service, Plant
Protection and Quarantine, 26 FLRA No. 79 (1987). In this case,
however, where the Union submitted a blanket request for copies of all
of the Bureau's crediting plans and there is no evidence that any of the
plans were needed in connection with a particular grievance, the
information is not necessary wtthin the meaning of section
7114(b)(4)(B).
VI. Conclusion
We conclude that the Respondent Department of the Interior did not
violate section 7116(a)(1), (5) and (8) of the Statute by directing the
Respondent Bureau of Reclamation to deny the Union's request for copies
of all of the Bureau's crediting plans. We further conclude, in
agreement with the Judge, that the Respondent Bureau did not violate the
Statute as alleged in the complaint by denying the Union's request.
ORDER
The complaint in Case No. 9-CA-40223 is dismissed.
Issued, Washington, D.C., April 30, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 9-CA-40223
DEPARTMENT OF INTERIOR, WASHINGTON, D.C. AND
BUREAU OF RECLAMATION, LOWER COLORADO DAMS
PROJECT BOULDER CITY NEVADA
Respondents
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1978
Charging Party
Dan Jensen
For the Respondent
Bureau of Reclamation
Gerald Rachelson, Esq.
For the Respondent
Bureau of Reclamation and Department of Interior
Cecil Miller
For the Charging Party
Josanna Berkow, Esq.
For the General Counsel
Federal Labor Relations Authority
Before: SAMUEL A. Chaitovitz
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Managment
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
section 7101 et seq., 92 Stat. 1191, (hereinafter referred to as the
Statute) and the Rules and Regulations of the Federal Labor Relations
Authority (FLRA), 5 C.F.R. Chapter XIV, section 2410 et seq.
An unfair labor practice charge was filed on April 12, 1984 by
American Federation of Government Employees, Local 1978 (hereinafter
called AFGE Local 1978 and the Union) alleging that Lower Colorado Dams
Project violated the Statute. An amended charge was filed on July 13,
1984 by the Union alleging that Bureau of Reclamation, Lower Colorado
Dams Project and Department of Interior (herein collectively referred to
as Respondents) violated the Statute. Based upon the foregoing the
General Counsel of the FLRA, by the Regional Director of Region 9,
issued a Complaint and Notice of Hearing on July 25, 1984 and amended
the Complaint on Autust 9, 1984. The amended Complaint alleges that the
Bureau of Reclamation violated Sections 7116(a)(1), (5) and (8) of the
Statute by failing to provide the Union with copies of crediting plans,
as required by Section 7114(b)(4) of the Statute and Department of
Interior violated Sections 7116(a)(1) and (5) of the Statute by
interfering with Bureau of Reclamation's obligation to comply with the
provisions of Section 7114(b)(4) of the Statute. Respondents filed
timely joint Answer denying they had violated the Statute.
A hearing was conducted before the undersigned in Las Vegas, Nevada.
Respondents, AFGE Local 1978, and General Counsel for the FLRA were
represented and afforded full opportunity to be heard, to examine and
cross-examine witnesses, to introduce evidence and to argue orally.
Post hearing briefs have been filed and have been fully considered.
Based upon the entire record /1/ in this matter, my observation of
the witnesses and their demeanor, and from my evaluation of the
evidence, I make the following:
Findings of Fact
At all times material herein, AFGE Local 1978 has been the certified
exclusive representative of certain employees of Respondent's Lower
Colorado Dams Project at Hoover Dam. Gerald May, an employee of Hoover
Dam, has been the Union's Chief Negotiator since 1971. Cecil (Mike)
Miller was elected President of the Union in December of 1983. A
collective bargaining agreement covering employees at Hoover Dam was in
effect at all times material. The Bureau of Reclamation's Merit
Promotion Plan is incorporated by reference into the negotiated
agreement in Article 9.
Crediting plans are developed by the Regional personnel staffing
specialist and the supervisor of the position to be filled. The
specialist identifies minimum qualifications for the job from Office of
Personnel Management's (OPM's) generic job definitions, referred to as
the screen out element. This element may not be modified. Then, the
specialist works with the immediate superviosr in developing more
specific job elements to fit the requirements of the particular
position. Once the job elements are thus established, the specialist
develops a crediting plan to rank and rate the applicants using the
Department of Interior manual. Either a panel (Merit Promotion Board)
or an individual, depending upon the number of applicants, ranks the
applicants and develops a Best Qualified List (BQL) which is then sent
to the selecting official. The selecting official needn't select any of
the applicants on the BQL. He can either select off the list or set the
entire process in motion again by asking for another BQL. Moreover,
Respondent needn't use crediting plans to make selections. It may
select from any other appropriate means such as reemployment priority
lists, reinstatements, transfers, handicapped or veterans' readjustment
eligibles or off of OPM certificates. Article IV of the negotiated
agreement provides for Union designation of a representative on an Merit
Promotion Board that might be assembled to fill a particular vacancy.
On March 8, 1983, Bureau of Reclamation regional management submitted
a revised Merit Promotion Plan to the Union for negotiation pursuant to
Article 9 of the collective bargaining agreement. The proposal
contained both changes and carryovers from the existing Merit Promotion
Plan. /2/ By letter of March 9, 1983, the Union requested to bargain
concerning the revised plan. Bargaining was delayed pending the
completion of other negotiations by the parties. The Union submitted
its merit promotion proposals to Management on June 16, 1983. One of
the Union's proposals was to negotiate with respect to crediting plans.
/3/
The parties began negotiations pertaining to merit promotion on July
26, 1983. The Union was represented by May and management by Dan
Jensen, Labor Management Relations Specialist, and by Jim McHan, Chief
of Operations at Hoover Dam. Jensen stated at the outset that crediting
plans were not negotiable. /4/ May replied that the FLRA had recently
held they were negotiable. Jensen stated that the FLRA's decision was
being appealed. May said he would check on the status of the decision
and get back to Jensen on the matter. The parties proceeded to conduct
negotiations regarding other merit promotion issues at this and
subsequent meetings in August and September of 1983.
After contacting the San Francisco Regional Office of the FLRA
concerning the crediting plan decisions on September 9, 1983, May
submitted a written request to McHan for copies of the crediting plans.
The parties met to discuss the Union's request for the plans in November
of 1983. At this meeting Jensen told May he did not want to release the
plans to the Union because he feared their confidentiality would be
compromised. May stated he would provide Jensen written assurances that
the Union would safeguard the confidentiality of the plans. May
submitted these assurances by letter of December 15, 1983 and again
requested that copies of the plans be provided to the Union by December
21, 1983.
The parties met to discuss the Union's second written request for the
crediting plans in January of 1984. The Union was represented by May
and Miller; management by Jensen and McHan. Jensen again raised
concerns about the Union's ability to keep the plans confidential.
Miller, on behalf of the Union, proposed that the crediting plans be
kept at the Dam, that the Union be given access to the plans and that
both parties sign off on the plans, thereby agreeing that these are the
plans to be used for bargaining unit merit promotions. In addition,
Miller proposed that the plans then be placed in a vault under a dual
lock so that neither party could access the plans without the other's
knowledge. Miller's "access proposal" was rejected by Jensen. McHan
instead suggested that the Union obtain the information it wanted about
the contents of the plans through its representatives on merit promotion
boards. This was an unacceptable solution to both the Union and Jensen
and the idea was tabled. Jensen then stated that he would not turn over
the plans to the Union and that the Union would have to take him to
court. The meeting then ended.
AFGE Local 1978 filed an unfair labor practice shortly after this
meeting, alleging in part that Management had refused to negotiate
concerning crediting plans. The charge was subsequently withdrawn
without prejudice by the Union in exchange for what it believed to be an
agreement by management to negotiate regarding the crediting plans.
The parties met again to discuss crediting plans shortly thereafter
in March of 1984. The Union was represented by Miller and Ken Bandy, an
employee at Hoover Dam and member of the Union's negotiating committee;
management by Jensen and McHan. /5/ Miller again requested the
crediting plans be provided to the Union. Jensen again stated he was
concerned about the confidentiality of the plans. Miller again proposed
that the Union be given access to the plans, a chance to review them and
that they then be placed under a dual lock system to ensure
confidentiality. Jensen stated he wouldn't turn the plans over to the
Union during the pendency of the FLRA's negotiabiltiy decision. The
present unfair labor practice was filed shortly after this meeting.
The requested crediting plans are regularly maintained by Respondent
Bureau of Reclamation in the Regional Office of the Lower Colorado Dams
Project in Boulder City, Nevada. The Union's request for bargaining
unit crediting plans covered approximately twenty to twenty-five plans.
The plans average four to six pages in length.
The Union requested copies of the bargaining unit crediting plans to
formulate more specific proposals in connection with their request to
negotiate on the plans. The Union also requested the plans because they
wanted to secure them from changes which might result in pre-selection,
favoritism or other violations of the negotiated Merit Promotion Plan.
To date, the Union has not received copies of or access to any of the
requested crediting plans. At no time throughout the parties' numerous
discussions did Respondent mention any regulatory bar to disclosure of
crediting plans to the Union. Respondent did not, at any time, propose
alternatives to disclosure.
The parties stipulated that "any refusal by Respondent Bureau of
Reclamation to turn over the crediting plans for the bargaining unit
employees of the Lower Colorado Dams Project office . . . was done at
the direction or Respondent Department of Interior."
Discussion and Conclusions of Law
In the subject case Bureau of Reclamation submitted a revised Merit
Promotion Plan and the Union and the Respondent met to negotiate,
pursuant to Article 9 of the collective bargaining agreement, concerning
these proposed changes in the Merit Promotion Plan. An integral part of
the application of the Merit Promotion Plan is the use of the crediting
plans. Therefore as a part of negotiating about management's proposed
changes in a Merit Promotion Plan the Union reasonably can require to
have access to the crediting plans and to bargain about the crediting
plans. The FLRA has held that a union is entitled to bargain about the
substance of crediting plans. National Treasury Employees Union and
NTEU Chapters 153, 161 and 183 and U.S. Customs Service, Region II, 11
FLRA 209 (1983), /6/ reversed sub non. U.S. Customs Service, Region II
v. FLRA, 739 F.2d 829 (2nd Cir., 1984); National Treasury Employees
Union and Department of the Treasury, U.S. Customs Service, Washington,
D.C., 11 FLRA 247 (1983), /7/ appeal docketed, No. 83-1355 (D.C. Cir.,
April 4, 1983).
Thus the substance of crediting plans are negotiable both in
themselves and as an integral part of the Merit Promotion Plan. Further
access to the crediting plans is necessary to intelligently conduct
negotiations concerning the Respondent's proposed changes in the Merit
Promotion Plan. Section 7114(b)(4) of the Statute provides that a
collective bargaining representative has a right to relevant and
necessary information to fulfill its collective bargaining
responsibilities. Accordingly, because the crediting plans are
negotiable and because access to them is necessary in order to bargain
about the Merit Promotion Plan, the Union is entitled to the crediting
plans. See NTEU I, supra and NTEU II, supra and see Department of the
Treasury, U.S. Customs Service, Region VIII, San Francisco, California,
13 FLRA 631 (1984).
Respondent argues that negotiating concerning the crediting plans and
providing them to the Union would interfere with the management rights
provision of Section 7106(a) of the Statute. The FLRA specifically
rejected this contention. See NTEU I, supra. Respondent argues further
that because the Union might make a non-negotiable proposal concerning
the crediting plans and/or the Merit Promotion Plan this somehow frees
management from bargaining and providing information concerning general
matters that are negotiable. This position must be rejected because it
would totally defeat the process of collective bargaining. By merely
supposing in advance an unlawful proposal, management contends it should
be able to free itself of its obligation to bargain over negotiable
proposals. Such a situation is clearly not sanctioned by the Statute.
Respondents contend that the crediting plans cannot be given to the
Union because disclosure would compromise the integrity of the crediting
plan and be in conflict with government-wide rules and regulations, more
specifically the FPM. Although Respondents allege that providing the
crediting plans to the Union would compromise their integrity, no
evidence was submitted to support this contention. In fact Union
representatives have been sitting on the various merit promotion boards
using the crediting plans and there was no evidence submitted that there
was any compromising of the integrity of the crediting plans. On the
contrary, Respondents seems to have no problem with the Union
representatives on the panels having access to the plans. Further the
Union give its assurances in writing that it would maintain intergrity
of the plans. The Union made other proposals involving locking the
crediting plans in a safe, etc., designed to protect the integrity of
the plans. Management merely rejected these proposals without offering
any alternatives. In such circumstances, I conclude that there was no
showing that providing the crediting plans to the Union would have
compromised the integrity of the plans.
The FLRA has already rejected Respondents' argument that providing
the crediting plans to the Union would violate subchapter S6 of FPM
Supplement 335-1. The FLRA stated at page 213 NTEU I, supra:
Hence, 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. The Agency
here has not demonstrated, nor is it apparent, that disclosing the
crediting plans in question would create any unfair advantage or
compromise the selection process. To the contrary, assuming that
all candidates have equal access to the content of the crediting
plan, no candidate would be disadvantaged by its disclosure, nor
would the selection process be compromised. Thus, the disclosure
of the crediting plans set forth in Proposals 1 and 2 would not be
inconsistent with subchapter S6, FPM Supplement 335-1.
The FLRA then stated that, because of the foregoing, it did not have
to decide whether the FPM provisions were a government-wide rule or
regulation. In the subject case there was no showing, other than a mere
allegation, that the disclosure of the crediting plans would create any
unfair advantage. Accordingly I conclude, in agreement with the FLRA,
that providing the Union with copies of the crediting plans would not be
inconsistent with subchapter S6, FPM Supplement 335-1 and that,
therefore, I need not reach the question of whether that provision of
the FPM constitutes a government-wide rule or regulation within the
meaning of Section 7117 of the Statute.
I conclude, in light of the foregoing, that the Union was entitled to
the crediting plans for positions in the collective bargaining unit in
order to pursue bargaining rights pursuant to Section 7114(b)(4) of the
Statute and that the Bureau of Reclamation refused to provide the Union
with copies of the crediting plans. The parties stipulated that any
such refusal by the Bureau of Reclamation was done at the direction of
the Department of Interior. I conclude therefore that Department of
Interior violated Sections 7716(a)(1) and (5) of the Statute. Cf.
Department of Health and Human Services, Social Security Administration,
Region VI and Department of Health and Human Services, Social Securith
Adminiatration, Galveston, Texas Disbrict, 10 FLRA 26 (1982), and see
U.S. Army Engineer Center and Fort Belvoir, 13 FLRA 707 (1984).
The Complaint herein alleges that Bureau of Reclamation violated
Sections 7116(a)(1), (5) and (8) of the Statute by its failure to
provide the crediting plans. General Counsel of the FLRA, in his brief,
did not urge any finding with respect to these allegations. Because the
Bureau of Reclamation was acting under instructions from the Department
of Interior, I am constrained to follow the FLRA's holding that, where
such a component follows the instructions of its parent organization,
the component organization does not violate the Statute, even if it does
not meet its statutory obligations. U.S. Army Engineer Center and Fort
Belvoir, supra. Accordingly, I recommend the complaint herein be
dismissed insofar as it alleges a violation of the Statute by the Bureau
of Reclamation.
Having concluded that Department of Interior violated Section
7116(a)(1) and (5) of the Statute, it is recommended that the Authority
adopt the following Order:
ORDER
Pursuant to Section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and Section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the Department of Interior, shall:
1. Cease and desist from:
(a) Improperly preventing the Bureau of Reclamation from
providing copies of crediting plans to American Federation of
Government Employees, Local 1978.
(b) In any like or related manner interfering with, restrain,
or coercing employees in the exercise of their rights assured by
the Statute.
2. Take the following affirmative action to effectuate the purposes
and policies of the Statute:
(a) Permit Bureau of Reclamation to provide American Federation
of Government Employees, Local 1978, with copies of requested
crediting plans.
(b) Post at the Hoover Dam facility copies of the attached
Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms they shall be signed by a
responsible official of the Department of Interior and shall be
posted and maintained for 60 consecutive days thereafter, in
conspicuous places, including bulletin boards and other places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Department of Interior to insure that
such notices are not altered, defaced, or covered by any other
material.
(c) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region 9, Federal Labor
Relations Authority, in writing, within 30 days of the date of
this Order, as to what steps have been taken to comply with the
Order.
/s/ SAMUEL A. CHAITOVITZ
Administrative Law Judge
Dated: May 30, 1985
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(*) The General Counsel also filed a motion asking the Authority to
disregard the Respondent's exceptions and supporting brief because they
assertedly fail to clearly present specific grounds or justification for
exceptions as required by sections 2423.27 and 2423.28 of the
Authority's Rules and Regulations. We have determined that the
Respondent's exceptions and supporting brief are sufficiently clear to
identify the grounds and supporting arguments for the exceptions
presented. Accordingly, the General Counsel's motion is denied.
(1) General Counsel of the FLRA's exhibit 10 was received into
evidence, but was sealed in an envelope and will be forwarded in the
sealed envelope to the FLRA for its examination.
(2) Respondent's revisions included, inter alia, a new provision that
certain employees may be promoted, reassigned, or placed into a lower
grade, without competition, to listed positions which have no higher
career ladder promotion potential than the position currently occupied;
a new provision requiring the use of KSAO's to determine the best
qualified candidate rather than merely using them to define successful
performance; new procedures regarding the filling of term promotions,
expansion of merit promotion procedures to select employees for certain
training programs; and a new exclusion for certain vetrans' career
ladder promotions from the merit promotion plan.
(3) AFGE Local 1978 also proposed that the minimum area of
consideration for promotion be limited to Hoover Dam and that candidates
outside of Hoover Dam not be considered.
(4) Jensen testified that he told May that Jensen "did not think"
crediting plans were negotiable. In this regard, I credit May's version
of the conversation. In so doing I note, not only was May a more
credible witness, but that in fact, Jensen, would not and never did
agree to bargain about the crediting plans.
(5) May had been out on sick leave since March 16, 1984. He did not
attend the March meeting.
(6) Hereinafter referred to as NTEU I.
(7) Hereinafter referred to as NTEU II.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT improperly prevent the Bureau of Reclamation from
providing copies of crediting plans to American Federation of Government
Employees, Local 1978.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Statute.
WE WILL permit Bureau of Reclamation to provide American Federation
of Government Employees, Local 1978, with copies of the requested
crediting plans.
(Agency or Activity)
Dated: . . . By: . . . (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region 9,
whose address is: 530 Bush Street, Room 542, San Francisco, CA 94108
and whose telephone number is: (415) 556-8106.