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37 FLRA No. 74

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF DEFENSE

DEFENSE LOGISTICS AGENCY

DEFENSE GENERAL SUPPLY CENTER

RICHMOND, VIRGINIA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2047

(Charging Party)

34-CA-50359

(28 FLRA 137)

DECISION AND ORDER ON REMAND

October 9, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority pursuant to a remand from the United States Court of Appeals for the Fourth Circuit in Defense Logistics Agency v. FLRA, 882 F.2d 104 (4th Cir. 1989) (DLA), vacating the Authority's order in Defense Logistics Agency, Defense General Supply Center, Richmond, Virginia, 28 FLRA 137 (1987) (Defense Logistics). In Defense Logistics, the Authority concluded that the Respondent violated section 7116(a)(1) and (6) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to comply with an arbitrator's award directing the parties to include a provision in their local agreement. The Authority did not, however, address the merits of the provision. In remedying the unfair labor practice, the Authority ordered the Respondent to incorporate the terms of the arbitrator's award into the parties' agreement, subject to any agreement which may have been reached otherwise.

In DLA, the court vacated the Authority's order and remanded the case to the Authority "for consideration of the agency's position on its merits." 882 F.2d at 107. In so doing, the court concluded that the award resulted from a decision rendered by the Federal Service Impasses Panel (the Panel) under section 7119(b)(1) of the Statute and not from an interest arbitration award.

We have considered the positions of the parties on the merits, as well as the Administrative Law Judge's decision recommending dismissal of the complaint. For the following reasons, we conclude that the disputed provision is contrary to a Government-wide rule or regulation, as claimed by the Respondent. Consequently, the Respondent was not obligated to comply with the decision and the refusal to do so did not violate the Statute. Accordingly, we will dismiss the complaint.

II. Background

During bargaining for a local supplemental agreement, the Union sought the services of the Panel to assist in the resolution of a negotiation impasse. The Panel referred the dispute to its then Acting Executive Director, who engaged in mediation/arbitration. Following the arbitration phase of the proceeding, the Acting Executive Director issued an Arbitrator's Opinion and Decision in which she ordered the parties to adopt a provision concerning crediting plans. The provision required publication of benchmarks and quality levels in job opportunity announcements for various positions. The Respondent notified the Union that it would not comply with the decision because release of the specified information "would jeopardize the fairness of the system and would so expose the method of rating and ranking as to virtually invalidate the rating process." Joint Exhibit 4.

A complaint was issued alleging that the failure of the Respondent to comply with the Panel's decision constituted a failure to comply with the provisions of section 7119(c)(5)(B) and (C) of the Statute and, therefore, a violation of section 7116(a)(1) and (6) of the Statute.

Subsequent to the filing of the complaint, the Respondent sought assistance from the Office of Personnel Management (OPM) concerning an interpretation of Federal Personnel Manual (FPM) Supplement 335-1, subchapter S6, as it related to the provision. More specifically, the Respondent requested OPM to review the provision to determine whether the publication of benchmarks and quality levels contained in the crediting plans would violate the FPM. Respondent's Exhibit 3. In response, OPM stated that "disclosure of benchmark and quality level criteria as required by the FSIP . . . would violate" FPM Supplement 335-1, subchapters S5 and S6, (see Appendix to this decision) which contain requirements restricting release of crediting plans. Respondent's Exhibit 4 at 3. OPM also indicated that the provision would violate the provisions of 5 C.F.R. Part 300, concerning Federal competitive employment practices. Id.

III. Judge's Decision and Authority's Decision in Defense Logistics

The Judge found first that the arbitrator's decision resulted from a Panel proceeding under section 7119(c)(5)(A) of the Statute and not from a proceeding under section 7119(c)(5)(B) and (C). In reaching this conclusion, the Judge distinguished between Panel recommendations under section 7119(c)(5)(A), and final actions of the Panel under section 7119(c)(5)(B) and (C). The Judge found that where parties have rejected the Panel's recommendation for impasse resolution or have not otherwise arrived at a settlement, the Panel may take final action under section 7119(c)(5)(B) and (C) to resolve the impasse. As the arbitrator's decision resulted from the parties' acceptance of a Panel recommendation under section 7119(c)(5)(A), the Judge recommended dismissal of the allegations of the complaint concerning a failure to comply with section 7119(c)(5)(B) and (C).

On the merits, the Judge concluded that the provision in dispute was outside the duty to bargain because release of crediting plan information could, in certain circumstances, prevent the Respondent from complying with a Government-wide rule or regulation. Accordingly, the Judge found that the Respondent was not obligated to comply with the decision and its refusal to do so was not an unfair labor practice. The Judge recommended dismissal of the complaint.

In Defense Logistics, the Authority disagreed with the Judge's finding that the arbitrator's decision resulted from a Panel proceeding. The Authority found that the arbitrator's decision was an interest arbitration award under section 7122 of the Statute and, as such, could not be collaterally attacked in an unfair labor practice proceeding. The Authority concluded that, in the absence of timely filed exceptions under section 7122(a), the award became final and binding and the Respondent's failure to implement the award violated section 7116(a)(1) and (6) of the Statute. The Authority did not consider the merits of the imposed provision.

To remedy the unfair labor practice, the Authority directed the Respondent to comply with the arbitrator's decision and to incorporate the imposed term into the parties' local agreement, subject to any agreement the parties may have reached otherwise, and until modified in a manner consistent with the Statute. Following issuance of the Authority's decision, the Respondent sought clarification of and an extension of time to comply with the Authority's order. The Respondent's requests were denied in Defense Logistics Agency, Defense General Supply Center, Richmond, Virginia, 29 FLRA 1035 (1987) (Order Dismissing Motions For Clarification And For Extension To Comply With Order).

IV. The Court's Decision in DLA

The court disagreed with the Authority's finding that the arbitrator's decision was an interest arbitration award under section 7122 of the Statute. Instead, relying on Department of Defense Dependents Schools v. FLRA, 852 F.2d 779 (4th Cir. 1988) (DODDS), which the court found to be indistinguishable from this case, the court held that the arbitrator's decision was rendered pursuant to the parties' requests for assistance under section 7119(b)(1) of the Statute and, as such, was a Panel decision. The court noted its ruling in DODDS that agency heads are authorized to review provisions imposed by the Panel to ensure that they are in accordance with the Statute, and that an agency head objecting to a Panel decision may refuse to implement it. DLA, 882 F.2d at 105-06. The court noted that a refusal to implement was reviewable by the Authority either through the filing of an unfair labor practice proceeding under section 7116(a) of the Statute or through the filing of a negotiability appeal under section 7117(c) of the Statute. Id. at 106.

The court noted that the Respondent declined to comply with the Panel's decision because it believed that the imposed provision was contrary to a Government-wide regulation. Id. at 107. The court indicated that an unfair labor practice charge was then filed alleging that the Respondent's conduct constituted a failure or refusal to cooperate in impasse procedures and decisions in violation of the Statute. The court noted that when the unfair labor practice case was brought before the Authority, the Authority incorrectly determined that the arbitrator's decision could only be challenged through the filing of exceptions under section 7122 and could not be collaterally attacked in the unfair labor practice proceeding. The court remanded the case to the Authority to consider the Respondent's position on the merits.

V. Authority's Decision on Remand

The Authority adopts the court's conclusion that the arbitrator's award was a Panel decision under section 7119(b)(1) of the Statute and that the Respondent's refusal to comply with the decision can be challenged through unfair labor practice procedures.⁽¹⁾ To determine whether the Respondent's failure to comply with the Panel decision here constituted a violation of section 7116(a)(1) and (6) of the Statute, as alleged in the complaint, it is necessary to determine whether the provision is contrary to the Statute or other applicable law, rule or regulation. See United States Department of the Treasury, Internal Revenue Service and Internal Revenue Service, Austin District, and Internal Revenue Service, Houston District, 23 FLRA 774, 777-78 (1986). For the following reasons, we find, in agreement with the Judge, that the provision is outside the duty to bargain because it is inconsistent with a Government-wide rule or regulation, FPM Supplement 335-1, subchapters S5 and S6.⁽²⁾ Therefore, the Respondent's refusal to comply with the provision did not violate the Statute.

A. The Provision

The disputed provision provides as follows:

KSAs [knowledge, skills, and abilities] will be published in the JOAs [job opportunity announcements] with descriptive statements as appropriate. The descriptive statement(s) following the KSA statements for unique positions with locally developed plans shall be the benchmark(s) and quality levels listed in the crediting plan.

B. Judge's Decision

As explained by the Judge, the disputed provision requires publication of benchmarks in job opportunity announcements for positions, with locally developed crediting plans, that are unique to the Respondent's Richmond facility. As further explained by the Judge, benchmarks are the written descriptions of the types of experience and other relevant factors that are necessary to meet each credit level, from minimally qualified to highly qualified. Benchmarks are used to rate the responses of candidates on their application materials. The Judge also noted that unique positions are those which have fewer than 50 positions agency-wide. At the time of the unfair labor practice hearing, there were five unique bargaining unit positions at the Respondent's Richmond facility.

The Judge further noted that the Union had also proposed a provision which would have required disclosure of benchmarks in job opportunity announcements for positions having 50 or more employees, for which crediting plans are developed on an agency-wide basis. The Judge indicated that this provision was rejected by the arbitrator on the basis that the utility of the selection process would be compromised in contravention of FPM Supplement 335-1, subchapter S6-1. As indicated by the Judge, the arbitrator found that disclosure of benchmarks for the Richmond positions did not conflict with the FPM because (1) the information would be available to all so that no candidate would be disadvantaged, (2) human resource management would be improved to the extent that more candidates would merit inclusion in the highly qualified group, and (3) any potential for candidate "puffing" would be minimized by the ease of verification and the deterrent effect of language specified on the job opportunity announcements regarding falsification. Judge's Decision at 3-4.

The Judge disagreed with the arbitrator's findings concerning the effects of disclosure of the benchmarks for positions unique to the Respondent's Richmond facility. The Judge found that FPM Supplement 335-1, subchapters S5 and S6, authorize release of crediting plans and rating procedures only if the release does not provide an unfair advantage to certain candidates for positions or otherwise compromise the utility of the selection process. The Judge found that release of the benchmarks contained in the crediting plans could create an unfair advantage for bargaining unit employees or compromise the selection process in the following ways.

First, the Judge found that if the Respondent were to advertise a position outside the bargaining unit, bargaining unit employees would have an advantage over the outside applicants because the latter would not have access to the benchmarks. By way of example, the Judge noted that the Respondent could seek candidates for positions through registers prepared by OPM, and that OPM does not provide benchmark information. According to the Judge, bargaining unit employees with knowledge of the benchmarks could tailor their applications to the benchmarks, receive higher scores relative to non-bargaining unit employees, and could thereby effectively block the Respondent's use of OPM registers as a source of candidates.

Second, the Judge found that if candidates were provided with benchmarks in every case, information concerning claimed prior employment experience could not be verified easily. The Judge noted that, particularly with non-Federal employment, employers are often reluctant to provide information or are no longer available to provide employment information. Consequently, the inability to verify claimed experience would, in the Judge's view, significantly jeopardize the selection process.

Third, the Judge found that bargaining unit candidates could obtain an unfair advantage over non-bargaining unit candidates when competing for non-unique positions that are in the same or similar job series as the unique positions. As the Judge indicated, benchmarks are not published in job opportunity announcements for non-unique positions. Yet, some of the critical elements for unique and non-unique positions are the same. Where that is the case, the Respondent uses the benchmarks developed for the non-unique positions in the unique positions. If employees were to have access to the benchmarks for unique positions, employees could then use this information in competing for agency-wide, non-unique positions. According to the Judge, unit employees who had seen the benchmarks for unique positions would have a distinct advantage over candidates who had not.

In reaching the conclusion that the provision was inconsistent with the FPM, the Judge rejected the General Counsel's assertion that the arbitrator had considered fully the Respondent's arguments in directing adoption of the provision. The Judge noted that the portions of the arbitration proceeding that were made a part of the record before the Judge were insufficient to sustain the General Counsel's assertion in this regard.

Having found that the provision violated the FPM, the Judge then concluded that FPM Supplement 335-1, subchapters S5 and S6 constitute a Government-wide rule or regulation. As the imposed provision would prevent the Respondent from complying with a Government-wide rule or regulation, under the circumstances described above, the Judge concluded that the provision was outside the duty to bargain under section 7117(a)(1) of the Statute. Accordingly, the Judge found that the Respondent was not obligated to comply with the provision, and no unfair labor practice was committed.

C. Positions of the Parties

The General Counsel and the Union excepted to the Judge's Decision. The Respondent filed an opposition to both exceptions. Additionally, OPM requested and was granted permission to file an amicus curiae brief pursuant to section 2429.9 of the Authority's Rules and Regulations. The Union filed a response thereto.

1. General Counsel's Exceptions

The General Counsel disagrees with the Judge's finding that the arbitration award was issued pursuant to section 7119(c)(5)(A) of the Statute. The General Counsel argues, instead, that the decision of the arbitrator was a final action of the Panel and that the Respondent's failure to comply with the decision violated section 7116(a)(1) and (6) of the Statute.

The General Counsel also disagrees with the Judge's finding that there was insufficient evidence on which to conclude that the arbitrator considered the Respondent's arguments in directing adoption of the provision. The General Counsel notes, for example, that the arbitrator addressed the verification problems attendant to the release of the benchmarks.

Finally, the General Counsel argues that the Respondent failed to prove that release of the benchmarks would significantly compromise the selection process or that the arbitrator's award is inconsistent with a Government-wide rule or regulation. Consequently, the General Counsel argues, the Respondent's failure to comply with the arbitrator's decision violated section 7116(a)(1) and (6) of the Statute.

2. Union's Exceptions

The Union excepts to the Judge's finding that release of benchmarks would provide bargaining unit employees with an unfair advantage over other employees. The Union claims that the only advantage a unit employee could have over an outside applicant is seeing the job announcement first and that this does not constitute an unfair advantage.

The Union also argues that the provision does not conflict with FPM Supplement 335-1, subchapters S5 and S6, and that it provides equal access to all applicants of the skills required for a position. The Union notes that the provision was not intended to provide use of the crediting plans exclusively by the Union but was merely designed to require that the benchmarks be published.

3. Respondent's Opposition to the Exceptions

The Respondent filed an opposition to the exceptions of both the General Counsel and the Union. The Respondent argues first, as to the General Counsel's exceptions, that the issues raised before the arbitrator were not the same as those raised by the Judge, and that the evidence before the Judge compelled the conclusion that the provision would violate a Government-wide rule or regulation. The Respondent also argues that the General Counsel failed to establish that the provision is consistent with FPM Supplement 335-1, subchapters S5 and S6.

As to the Union's exceptions, the Respondent argues that the Union erroneously concluded that unit employees would not have an unfair advantage over other employees. The Respondent states that where the Respondent seeks candidates from outside the bargaining unit, it may obtain candidates from a register prepared by OPM. According to the Respondent, OPM may use the Respondent's crediting plan in developing its register, but OPM does not publish the benchmarks in its job advertisements. Consequently, the Respondent argues, bargaining unit employees who have access to the benchmarks may compete for positions with non-bargaining unit employees who have not seen the benchmarks used for the position and, thus, gain an unfair advantage.

4. OPM's Amicus Curiae Brief

OPM states that FPM Supplement 335-1, subchapters S5 and S6, do not permit disclosure of crediting plans if the utility, validity, or fairness of the selection procedure would be compromised. OPM notes also that the FPM requires the safeguarding of crediting plans if candidate responses on job applications are not readily verifiable. OPM states that applicants with access to benchmarks could tailor their work history to fit the highest possible benchmarks, thus inflating the work histories and diminishing the validity of the selection procedure.

OPM also cites the difficulty inherent in verifying applicants' work histories because of the reluctance of employers to disclose information about their former employees, and also because of the large number of applicants who must be screened. In this latter regard, OPM cites 5 C.F.R. § 300.102, which requires that Federal competitive employment practices be "practical in character." OPM also states that the administration of selection procedures which are practical in character requires that selection procedures reduce the number of applicants to those who are best qualified for positions. According to OPM, "[t]his objective is met operationally by using benchmark and quality level information to rate and rank candidates so that a smaller number of best qualified candidates gets final consideration." Amicus Curiae Brief at 6. If information concerning benchmarks and quality levels was made available to applicants, and the applicants were able to "inflate" their work histories, OPM argues that an administrative burden would result and the merit procedure no longer would be practical. Id.

Finally, OPM argues that disclosure of the information, which could allow an applicant to tailor his or her work history to fit the highest possible benchmark, would diminish the utility of the selection procedure by making it difficult to assess the applicant's competence until after he or she was placed in a position. OPM asserts that having less experienced employees on the job, and discovering their lack of competence after they were placed in positions, would result in greater cost to the Government than the current selection process.

5. Union's Response to OPM's Brief

The Union disagrees with OPM's position and argues that the arbitrator's award does not violate FPM Supplement 335-1, subchapters S5 and S6. The Union claims that OPM failed to demonstrate how the award is inconsistent with the cited provisions of the FPM or how the award would compromise the validity of the selection procedure. Also, the Union claims that OPM's assertions regarding employee expansion of work histories are speculative.

The Union further argues that the Authority has previously considered and rejected OPM's arguments in finding that the release of crediting plans is not inconsistent with FPM Supplement 335-1. The Union cites National Treasury Employees Union and NTEU Chapters 153, 161 and 183 and U.S. Customs Service, Region II, 11 FLRA 209 (1983) (NTEU) and the decision of the administrative law judge, subsequently adopted by the Authority in Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 26 FLRA 407 (1987) (Fort Bragg).

D. Analysis and Conclusions

The Authority previously has addressed disclosure of information contained in crediting plans in various contexts. In National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 23 FLRA 681 (1986) (Customs Service), the Authority found that a proposal which would require an agency to disclose existing crediting plans to a union, on request, was inconsistent with FPM Supplement 335-1, subchapter S5-3(c), which the Authority found to be a Government-wide rule or regulation. The Authority noted that subchapter S5-3(c) provides that "[c]rediting plans . . . should not be released . . . if, in the agency's view, such release would undermine the fairness and validity of the selection procedure." Id. at 683. The Authority found that a determination as to whether release of crediting plans would create an unfair advantage or compromise the utility of the selection process should be made on a case-by-case basis. The Authority concluded that the proposal in Customs Service would have authorized a blanket disclosure of existing crediting plans without regard to whether the release of such plans would undermine the fairness and validity of the selection procedure. Consequently, the Authority concluded that the proposal was inconsistent with the FPM and was outside the duty to bargain.

The Authority reached a similar conclusion in American Federation of Government Employees, AFL-CIO, Local 1858 and U.S. Army Missile Command, The U.S. Army Test, Measurement, and Diagnostic Equipment Support Group, The U.S. Army Information Systems Command - Redstone Arsenal Commissary, 27 FLRA 69, 72-74 (1987). Relying on Customs Service, the Authority found nonnegotiable a provision which would have entitled employees to see records, including crediting plans, which might be used in the rating and ranking process. The Authority concluded that the provision was inconsistent with FPM Supplement 335-1, subchapter S5-3(c), insofar as the provision would restrict the agency's right to reject a request for release of the crediting plans in the circumstances where the agency believed that disclosure of the plans might undermine the fairness and usefulness of the selection process.

Although the Authority has found proposals authorizing blanket disclosure of crediting plans to be outside the duty to bargain, the Authority has required the disclosure of information relating to crediting plans where a union has established the right to such information to fulfill its representational functions under section 7114(b)(4) of the Statute. For example, the Authority has found that unions are entitled to crediting plans in order to determine whether to file grievances on behalf of unit employees. The failure of an agency to provide the requested information in such circumstances has been found to violate the Statute. See Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 34 FLRA 461 (1990); United States Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, 26 FLRA 630 (1987); and Fort Bragg, 26 FLRA 407.

More particularly, in Fort Bragg, on which the Union relies, the Authority found that the FPM did not prohibit the release of the requested data, which included crediting plans. Utilizing the case-by-case approach suggested in Customs Service for determining whether the release of crediting plans would create an unfair advantage or compromise the utility of the selection process, the Authority concluded that disclosure of the plans would not conflict with the FPM. The Authority noted that the requests were limited to two specific selection actions and did not require the blanket disclosure of all agency crediting plans. Moreover, disclosure of the plans was necessary for the union to fulfill its representational duties. Consequently, noting that the selection actions had been substantially completed, the Authority concluded that disclosure would not result in an unfair advantage to prospective candidates and would not destroy the integrity of the agency's selection process.

In this case, the disputed provision would require the Respondent to publish certain crediting plans in job opportunity announcements. The provision would authorize blanket disclosure of those crediting plans in the same manner as the proposal in Customs Service, which was found to be inconsistent with FPM Supplement 335-1, subchapter S5-3(c).

FPM Supplement 335-1, subchapter S6-1(c), which is set forth in the Appendix to this decision, provides that an agency is responsible for determining what information contained in crediting plans is not releasable. Here, we find that the Respondent has established that there are circumstances in which release of benchmarks, through their publication in job opportunity announcements, would result in an unfair advantage to bargaining unit employees. We are persuaded by the following arguments made by the Respondent as to the circumstances in which such an unfair advantage can arise.

First, the Respondent states that there are occasions when candidates for positions are obtained through OPM registers rather than the job opportunity announcement. Testimony of the Respondent's personnel staffing specialist at the unfair labor practice hearing reveals that when the Respondent expands the area of consideration to solicit candidates outside the Richmond facility, the Respondent can request a "certificate" from OPM. Transcript of Proceedings at 31. The Respondent submits a copy of the position description and crediting plan for the position in question to OPM, which then determines whether there is a standing inventory of candidates. If there is, OPM can provide a list of names, ranked according to the rating information provided by the Respondent. If there is no standing inventory of candidates, OPM will announce the position, using either the benchmarks provided by the Respondent or creating a new crediting plan. In any event, according to the Respondent, the benchmarks are not published.

The Respondent argues that bargaining unit employees with access to benchmarks would have an unfair advantage because they would know what the Respondent's evaluation plan is and how the Respondent intends to evaluate the candidates. Candidates supplied through OPM certificates, on the other hand, would not have this information. According to the Respondent, employees with access to the benchmarks could tailor their applications "to the point where they could successfully block fair competition among all candidates [and] . . . keep other people off the certificate . . . ." Id. at 34.

Second, the Respondent claims that, in addition to OPM certificates, there are other sources of candidates from which recruitment can be made. The Respondent argues that candidates taken from these sources would not have access to the benchmarks published in job opportunity announcements and would, therefore, be at a disadvantage in competing for positions. These additional sources of candidates are identified by the Respondent as an "applicants' supply file," described as a "voluntary file of transfer and reinstatement eligibles[;]" Veterans Readjustment Appointment files; and handicap program files, calling for the recruitment of handicapped employees. Id. at 31.

According to the Respondent, the third circumstance which would result in an unfair advantage to bargaining unit employees occurs frequently and involves the filling of non-unique positions that are similar to unique positions. According to the Respondent, benchmarks for unique positions are often used as the benchmarks for evaluating candidates competing for non-unique positions. The Respondent argues that if employees have access to benchmarks for unique positions, the employees could use that information when applying for non-unique positions to "successfully block[] fair competition" from candidates competing for those same positions. Id. at 35.

We find that release of the benchmarks would result in an unfair advantage for bargaining unit employees when candidates are drawn from OPM registers or other sources. In so finding, we reject the Union's assertion that the only advantage a unit employee could have over an outside applicant is seeing the job announcement first and that this does not constitute an unfair advantage. It is uncontroverted that when candidates for positions are taken from sources other than the job opportunity announcement, those candidates do not have access to the benchmarks published in the job opportunity announcements. Consequently, those candidates would not be able to respond to the specific benchmark information and compete for positions in the same manner as employees who have access to the benchmarks. We also reject the Union's argument that publication of the benchmarks would provide equal access to all applicants of the skills required for a position. Because candidates drawn from OPM registers and other sources would not have access to the benchmarks, their publication would not provide equal access to all applicants.

We also find that release of benchmarks would provide an unfair advantage to bargaining unit employees when they compete for non-unique positions. As explained by the Respondent, benchmarks for unique positions are often used as the benchmarks for similar, non-unique positions. It is uncontroverted that employees with access to the benchmarks could gain an advantage over other employees by using the information, thereby precluding fair competition. We note, moreover, with regard to the filling of non-unique positions, that the arbitrator had rejected a Union provision requiring disclosure of benchmarks for such positions. In reaching that decision, the arbitrator accepted the Respondent's argument that releasing the benchmarks would compromise the utility of the selection process in contravention of the FPM. Joint Exhibit 2. If release of benchmarks for non-unique positions would compromise the utility of the selection process, it is difficult to see how access to those benchmarks by some employees would not have the same effect.

Consequently, because the provision requiring disclosure of benchmarks for positions unique to the Respondent's Richmond facility could provide bargaining unit employees with an unfair advantage over other employees, we conclude that the provision is inconsistent with the FPM. Our conclusion, in this regard, is consistent as well with the guidance provided by OPM to the Respondent interpreting the effect of the FPM on publication of the crediting plans.

In Customs Service, the Authority found that FPM Supplement 335-1, subchapter S5-3(c), is a Government-wide rule or regulation within the meaning of section 7117(a)(1) of the Statute, which bars negotiations on conflicting proposals. As the provision here conflicts with a Government-wide rule or regulation, it is similarly outside the duty to bargain. Therefore, the Respondent was not obligated to comply with the Panel decision directing that the provision be incorporated in the parties' agreement.

We note that our finding that the disputed provision is contrary to a Government-wide rule or regulation would not preclude the Union from obtaining information contained in crediting plans under section 7114(b)(4) of the Statute provided the request satisfied the requirements of that section. As previously indicated, information pertaining to crediting plans may be provided under section 7114(b)(4) of the Statute in some circumstances. See, for example, Fort Bragg.

Finally, the Union relies on the Authority's decision in NTEU, 11 FLRA 209, to support its assertion that the provision here at issue is not inconsistent with the FPM. The Union's reliance is misplaced.

In NTEU, the Authority found that proposals concerning the establishment of crediting plans were within the duty to bargain. In reaching that result, the Authority rejected arguments that the proposals interfered with the exercise of management's rights under section 7106(a)(2) of the Statute. The Authority also found, without passing on whether FPM Supplement 335-1, subchapter S6 was a Government-wide rule or regulation, that the agency failed to sustain its assertion that disclosure of crediting plans would create an unfair advantage or compromise the selection process. The United States Court of Appeals for the Second Circuit denied enforcement of the Authority's decision. U.S. Customs Service, Region II v. FLRA, 739 F.2d 829 (2d Cir. 1984). The court held that bargaining over crediting plans would interfere with management's right to determine the personnel by which agency operations would be conducted. The court did not address the Authority's findings concerning the applicability of the FPM.

The Union's reliance on NTEU is misplaced because in NTEU, the Authority found that the agency failed to demonstrate that disclosure would have the undesired effects. By contrast, the Respondent here has demonstrated that disclosure could create an unfair advantage for bargaining unit employees and, thus, would compromise the fairness and validity of the selection process.

Having concluded that the disputed provision is inconsistent with a Government-wide rule or regulation, we conclude that the Respondent's failure to implement the provision did not violate section 7116(a)(1) and (6) of the Statute.

VI. Order

The complaint is dismissed.

APPENDIX

FPM Supplement 335-1, subchapters S5 and S6 provide as follows:

S5-3. Providing Information to Candidates

a. Candidates must be provided information about the job requirements and rating procedures used to evaluate them unless, in providing such information, an unfair advantage would be given to some candidates or unless the utility of the selection procedure would be otherwise compromised. At the minimum, information provided must include the knowledges, skills, abilities, and other candidate characteristics (KSAO's) to be evaluated and the method or type of procedure by which they will be evaluated. The intent of this provision is to (a) enable candidates to provide responses which reflect the most relevant aspects of the evaluation process, and (b) generally foster confidence and support of employees in the merit promotion program.

b. Flexibility exists in the form and manner in which information on job requirements and rating procedures is made available. This may be carried out, for example, through inclusion of such information in or with vacancy announcements. However provided, such information must be equally available to all candidates.

c. Crediting plans andating procedures for the evaluation of candidates' experiences should not be released as a means of providing information about job requirements if, in the agency's view, such release would undermine the fairness and validity of the selection procedure. In such instances, information may be extracted from crediting plans to meet the requirements of subparagraph a, above. (See also S6-1).

S6-1. Basic Principles

a. 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 compromise the utility of the selection procedure. At a minimum, the instructions must cover procedures to be followed during development, printing, storage, distribution, and destruction.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. (This provision is not intended to apply to appropriate retesting situations.)

b. The following are examples of materials which, when used operationally in internal selection, shall be controlled and safeguarded because their release would be detrimental to the validity and fairness of the evaluation process:

--test items and scoring keys for objectively scored tests;

--specific instructions, rules, and rating guides for assessment center exercises or standardized interviews;

--specific instructions, rules, and crediting plans used in "miniature training and evaluation" examinations in which candidates are evaluated in a standardized situation on ability to learn sample aspects of the job to be filled;

--standards or scoring criteria for work samples or simulations where knowledge (in contrast to physical performance or interpersonal skill) is being measured;

--aspects of procedures for evaluating the past behavior of candidates (such as scoring keys for biographical information blanks or examples of behavior used as criteria for the rating of information about experience) if candidates' responses are not readily verifiable;

--in general, aspects of operational evaluation procedures which involve selected samples of tasks or items which, if known beforehand to candidates, would allow candidates to improve performance on the sample of tasks or items without such performance being an indication of ability on the broader range of job requirements from which the sample is chosen.

c. The agency is responsible for determining what information is not releasable and must be prepared to defend its decision. The Office of Personnel Management will maintain control over the releasability of examination materials which it develops unless the material was developed under a reimbursable contract or unless control has otherwise been specifically delegated.

d. In those instances where an agency has determined that examination materials cannot be released to an employee, and the employee files a grievance or appeal challenging the agency's use or application of the examination materials, access to the materials should be granted to the third party official adjudicating the grievance or appeal if the employee requests it, provided that appropriate protective measures can be devised. An example of an appropriate protective measure would be to allow the third party official to review examination materials in camera, i.e., in the presence of a person with authorized access.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. In view of our decision herein, we find it unnecessary to determine whether the Judge correctly concluded that the Panel's decision was rendered pursuant to section 7119(c)(5)(A), rather than section 7119(c)(5)(B) and (C).

2. The relevant provisions of FPM, Supplement 335-1, subchapters S5 and S6, are set forth in the Appendix.

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