[ v01 p350 ]
01:0350(44)CA
The decision of the Authority follows:
1 FLRA No. 44
INTERNAL REVENUE SERVICE,
JACKSONVILLE DISTRICT,
JACKSONVILLE, FLORIDA
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Complainant
Assistant Secretary
Case No. 42-4382(CA)
DECISION AND ORDER
ON JANUARY 11, 1979, ADMINISTRATIVE LAW JUDGE BURTON S. STERNBURG
ISSUED HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED
PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN THE UNFAIR LABOR
PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT IT CEASE AND
DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTIONS AS SET FORTH IN
THE ATTACHED ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
NO EXCEPTIONS WERE FILED TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
DECISION AND ORDER.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED WERE
TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
REGULATIONS (44 F.R. 7). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR
THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS
ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS
CASE, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE
AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATION. /1/
ORDER /2/
PURSUANT TO SECTION 2400.2 OF THE TRANSITION RULES AND REGULATIONS OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE INTERNAL REVENUE SERVICE, JACKSONVILLE DISTRICT, JACKSONVILLE,
FLORIDA, SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO PERMIT THE NATIONAL TREASURY EMPLOYEES UNION ACCESS
TO SUCH DOCUMENTS AND
MATERIALS AS ARE NECESSARY AND RELEVANT TO THE NATIONAL TREASURY
EMPLOYEES UNION'S PROCESSING
OF A GRIEVANCE REGARDING THE SELECTION PROCESS FOR THE GROUP CLERK
GS-322-4, OFFICE AUDIT
VACANCY FOR WHICH VACANCY ANNOUNCEMENT 77-119 WAS POSTED.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN
THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS
AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) UPON REQUEST, PERMIT THE NATIONAL TREASURY EMPLOYEES UNION ACCESS
TO SUCH DOCUMENTS AND
MATERIALS AS ARE NECESSARY AND RELEVANT TO THE NATIONAL TREASURY
EMPLOYEES UNION'S PROCESSING
OF A GRIEVANCE REGARDING THE SELECTION PROCESS FOR THE GROUP CLERK
GS-322-4, OFFICE AUDIT
VACANCY FOR WHICH VACANCY ANNOUNCEMENT 77-119 WAS POSTED.
(B) POST AT ITS FACILITY AT THE INTERNAL REVENUE SERVICE,
JACKSONVILLE DISTRICT OFFICE,
JACKSONVILLE, FLORIDA, COPIES OF THE ATTACHED NOTICE MARKED
"APPENDIX" ON FORMS TO BE
FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF
SUCH FORMS, THEY SHALL BE
SIGNED BY THE DISTRICT DIRECTOR, INTERNAL REVENUE SERVICE,
JACKSONVILLE DISTRICT,
JACKSONVILLE, FLORIDA, AND SHALL BE POSTED AND MAINTAINED BY HIM FOR
60 CONSECUTIVE DAYS
THEREAFTER IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES
TO EMPLOYEES ARE
CUSTOMARILY POSTED. THE DISTRICT DIRECTOR SHALL TAKE STEPS TO INSURE
THAT THE NOTICES ARE NOT
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
30 DAYS FROM THE DATE
OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., MAY 21, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT REFUSE TO PERMIT THE NATIONAL TREASURY EMPLOYEES UNION
ACCESS TO SUCH DOCUMENTS AND MATERIALS AS ARE NECESSARY AND RELEVANT TO
THE NATIONAL TREASURY EMPLOYEES UNION'S PROCESSING OF A GRIEVANCE
REGARDING THE SELECTION PROCESS FOR THE GROUP CLERK GS-322-4, OFFICE
AUDIT VACANCY FOR WHICH VACANCY ANNOUNCEMENT 77-119 WAS POSTED.
WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
WE WILL, UPON REQUEST, PERMIT THE NATIONAL TREASURY EMPLOYEES UNION
ACCESS TO SUCH DOCUMENTS AND MATERIALS AS ARE NECESSARY AND RELEVANT TO
THE NATIONAL TREASURY EMPLOYEES UNION'S PROCESSING OF A GRIEVANCE
REGARDING THE SELECTION PROCESS FOR THE GROUP CLERK GS-322-4, OFFICE
AUDIT VACANCY FOR WHICH VACANCY ANNOUNCEMENT 77-119 WAS POSTED.
(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
MATERIALS.
IF ANY 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,
WHOSE ADDRESS IS: SUITE 540, 1365 PEACHTREE STREET, N.E., ATLANTA,
GEORGIA 30309.
HARRY MASON, ESQUIRE
STAFF ASSISTANT TO THE
REGIONAL COUNSEL
INTERNAL REVENUE SERVICE
P.O. BOX 1074
ATLANTA, GEORGIA 30301
FOR THE RESPONDENT
WILLIAM HARNESS, ESQUIRE
ASSOCIATE GENERAL COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
SUITE 530
2801 BUFORD HIGHWAY
ATLANTA, GEORGIA 30329
FOR THE COMPLAINANT
BEFORE: BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
CASE NO. 42-4382(CA)
DECISION AND ORDER
STATEMENT OF THE CASE
PURSUANT TO A COMPLAINT FILED ON JUNE 22, 1978, UNDER EXECUTIVE ORDER
11491, AS AMENDED, BY THE NATIONAL TREASURY EMPLOYEES UNION (HEREINAFTER
CALLED THE NTEU OR UNION) AGAINST THE INTERNAL REVENUE SERVICE,
JACKSONVILLE DISTRICT, (HEREINAFTER CALLED THE RESPONDENT OR ACTIVITY),
A NOTICE OF HEARING ON COMPLAINT WAS ISSUED BY THE ACTING REGIONAL
ADMINISTRATOR FOR THE ATLANTA, GEORGIA REGION ON AUGUST 25, 1978.
THE COMPLAINT ALLEGES THAT THE RESPONDENT VIOLATED SECTIONS 19(A)(1)
AND (6) OF THE EXECUTIVE ORDER BY VIRTUE OF ITS ACTIONS IN REFUSING TO
MAKE AVAILABLE TO UNION REPRESENTATIVES EVALUATION MATERIAL PERTAINING
TO VARIOUS CANDIDATES CONSIDERED IN CONNECTION WITH A PARTICULAR
"VACANCY ANNOUNCEMENT". THE EVALUATION MATERIAL WAS SOUGHT BY THE UNION
IN ITS CAPACITY AS REPRESENTATIVE OF A NON-SELECTED EMPLOYEE IN A
GRIEVANCE PROCEEDING PERTAINING TO THE VACANCY ANNOUNCEMENT.
A HEARING WAS HELD IN THE CAPTIONED MATTER ON NOVEMBER 8, 1978, IN
TAMPA, FLORIDA. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD,
TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
BEARING ON THE ISSUES INVOLVED HEREIN. /3/
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATIONS OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS AND RECOMMENDATIONS.
FINDINGS OF FACTS
THE UNION IS THE EXCLUSIVE REPRESENTATIVE OF THE PROFESSIONAL AND
NON-PROFESSIONAL EMPLOYEES AT RESPONDENT'S JACKSONVILLE, FLORIDA
DISTRICT.
ON AUGUST 29, 1977, VACANCY ANNOUNCEMENT 77-119 FOR THE POSITION OF
GROUP CLERK GS-322-4, OFFICE AUDIT, ST. PETERSBURG POST-OF-DUTY,
JACKSONVILLE DISTRICT, WAS ADVERTISED BY THE RESPONDENT UNDER THE UPWARD
MOBILITY PROGRAM. LURA B. COLANGELO, SUPPORT CLERK GS-322-3, A MEMBER
OF THE BARGAINING UNIT, APPLIED FOR THE POSITION ON AUGUST 29, 1977, THE
SAME DAY THAT THE ANNOUNCEMENT OF THE VACANCY WAS MADE.
ON OCTOBER 3, 1977, MS. COLANGELO WAS NOTIFIED BY RESPONDENT THAT A
PERSON OUTSIDE THE INTERNAL REVENUE SERVICE HAD BEEN SELECTED FOR THE
POSITION. ON OCTOBER 7, 1977, MS. COLANGELO FILED A GRIEVANCE ALLEGING,
AMONG OTHER THINGS, THAT THE RESPONDENT HAD VIOLATED ARTICLE 7, SECTION
2C OF THE COLLECTIVE BARGAINING AGREEMENT IN EFFECT BETWEEN THE UNION
AND THE RESPONDENT. ARTICLE 7, SECTION 2C READS IN PERTINENT PART AS
FOLLOWS:
WHEN FILLING A POSITION WHERE BARGAINING UNIT EMPLOYEES COMPETE WITH
OTHER APPLICANTS
. . . . THE EMPLOYER AGREES THAT A BARGAINING UNIT EMPLOYEE WILL BE
SELECTED IF HE/SHE IS AS
WELL QUALIFIED FOR THE VACANT POSITION AS THE OTHER APPLICANT.
DURING THE SECOND STEP GRIEVANCE MEETING WITH MS. COLANGELO'S BRANCH
CHIEF, THE UNION MADE A VERBAL REQUEST FOR THE EVALUATION MATERIAL
PERTAINING TO ALL THE OTHER APPLICANTS FOR THE VACANCY. /4/ IN
ACCORDANCE WITH INSTRUCTIONS, A WRITTEN REQUEST FOR THE EVALUATION
MATERIAL WAS SUBMITTED ON NOVEMBER 18, 1977.
BY MEMORANDUM DATED DECEMBER 2, 1977, RESPONDENT DENIED THE REQUEST
FOR THE EVALUATION MATERIAL. THE MEMORANDUM READS AS FOLLOWS:
YOUR REQUEST FOR EVALUATIVE MATERIAL REGARDING VACANCY ANNOUNCEMENT
77-119 CANNOT BE
COMPLIED WITH. THE FEW NUMBER OF CANDIDATES WHO APPLIED FOR THIS
POSITION PRECLUDES
SANITIZING THE FILES SO THAT THE IDENTITY OF AN INDIVIDUAL CANDIDATE
CAN BE PROTECTED. WE ARE
PROVIDING YOUR FILE, INCLUDING THE RANKING OFFICIAL'S SCORE AND
NARRATIVE.
ACCORDING TO MISS DOROTHY KALLAHER, RESPONDENT'S LABOR-MANAGEMENT
EMPLOYEE RELATIONS SPECIALIST, IN VIEW OF THE FACT THAT THERE WERE JUST
THREE CANDIDATES, ONLY ONE OF WHOM HAD ACHIEVED THE CUTOFF SCORE
APPEARING ON THE PROMOTION CERTIFICATE, THERE WAS NO WAY TO SANITIZE THE
EVALUATION MATERIAL SO THAT THE IDENTITIES OF THE CANDIDATES COULD NOT
BE DETERMINED. ADDITIONALLY, SANITIZING WAS FURTHER COMPLICATED BY THE
FACT THAT THE EVALUATION FORM USED FOR THE SELECTED CANDIDATE WAS
DIFFERENT THAN THE EVALUATION FORM CUSTOMARILY USED FOR IRS CANDIDATES
FOR PROMOTION. EVALUATION FORMS USED FOR CANDIDATES OUTSIDE THE AGENCY,
SUCH AS THE CANDIDATE SELECTED, WERE OF A DIFFERENT FORMAT AND CONTAINED
MORE CATEGORIES.
DISCUSSION AND CONCLUSIONS
IN INTERNAL REVENUE SERVICE, CHICAGO DISTRICT OFFICE, A/SLMR NO.
1004, THE ASSISTANT SECRETARY CONSIDERED A FACTUAL SITUATION IDENTICAL
TO THE ONE PRESENTED HEREIN, I.E., REQUEST FOR THE EVALUATION MATERIALS
UTILIZED IN SELECTING ONE OF THREE CANDIDATES FOR PROMOTION TO A VACANCY
AND DENIAL ON THE BASIS THAT "SANITIZATION WOULD NOT PROTECT THE PRIVACY
OF THE SELECTED CANDIDATE". IN FINDING A 19(A)(1) AND (6) VIOLATION
PREDICATED UPON THE RESPONDENT'S REFUSAL TO SUPPLY THE EVALUATION
MATERIALS WHICH WERE DEEMED TO BE RELEVANT TO THE RESOLUTION OF A
GRIEVANCE CONCERNING THE SELECTION, THE ASSISTANT SECRETARY STATED:
IN DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, MILWAUKEE,
WISCONSIN, A/SLMR
NO. 974(1978), I FOUND THAT AN EMPLOYEE'S RIGHT TO PRIVACY OF HIS
RECORDS MUST BE BALANCED
AGAINST THE CONFLICTING RIGHTS IN EACH CASE. AND WHERE, AS HERE, THE
CONFLICTING RIGHTS ARE
BROAD AND INVOLVED THE PARAMOUNT PUBLIC INTEREST OF AN EXCLUSIVE
REPRESENTATIVE'S RIGHT TO
ADEQUATELY PERFORM ITS REPRESENTATIONAL FUNCTIONS, OF HAVING THE
FEDERAL GOVERNMENT OPERATE
WITHIN ITS MERIT PROMOTION SYSTEM EQUITABLY, AND OF ENCOURAGING THE
USE OF NONDISRUPTIVE
GRIEVANCE PROCEDURES, I HAVE DETERMINED THAT THE MERE IDENTIFICATION
OF THE SUBJECT OF CERTAIN
DOCUMENTS IS NOT A VIOLATION OF PRIVACY SO SIGNIFICANT AS TO BAR
DISCLOSURE OF THE MATERIAL
AND THAT THE IDENTIFIED EMPLOYEE(S) WOULD STILL HAVE THE RIGHT TO
HAVE THE DOCUMENTS SANITIZED
SO AS TO OMIT ANY SENSITIVE OR DAMAGING PERSONAL MATERIAL.
IN VIEW OF THE FOREGOING AND INASMUCH AS THE FACTS OF THE INSTANT
CASE ARE VIRTUALLY IDENTICAL TO THOSE CONSIDERED BY THE ASSISTANT
SECRETARY IN IRS, CHICAGO DISTRICT OFFICE, SUPRA, I HAVE NO CHOICE BUT
TO FIND THAT THE RESPONDENT HEREIN VIOLATED SECTIONS 19(A)(1) AND (6) OF
THE ORDER BY VIRTUE OF ITS ACTIONS IN REFUSING TO SUPPLY THE EVALUATION
MATERIALS REQUESTED BY THE UNION. /5/
ORDER
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.26(B) OF THE REGULATIONS, THE FEDERAL LABOR RELATIONS
AUTHORITY HEREBY ORDERS THAT THE INTERNAL REVENUE SERVICE, JACKSONVILLE
DISTRICT, JACKSONVILLE, FLORIDA SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO PERMIT THE NATIONAL TREASURY EMPLOYEES UNION, ACCESS
TO SUCH DOCUMENTS AND
MATERIALS AS ARE NECESSARY AND RELEVANT TO THE NATIONAL TREASURY
EMPLOYEES UNION'S PROCESSING
OF A GRIEVANCE REGARDING THE SELECTION PROCESS FOR THE GROUP CLERK
GS-322-4, OFFICE AUDIT
VACANCY FOR WHICH VACANCY ANNOUNCEMENT 77-119 WAS POSTED.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN
THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS
AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) UPON REQUEST, PERMIT THE NATIONAL TREASURY EMPLOYEES UNION,
ACCESS TO SUCH DOCUMENTS
AND MATERIALS AS ARE NECESSARY AND RELEVANT TO THE NATIONAL TREASURY
EMPLOYEES UNION'S
PROCESSING OF A GRIEVANCE REGARDING THE SELECTION PROCESS FOR THE
GROUP CLERK GS-322-4, OFFICE
AUDIT VACANCY FOR WHICH VACANCY ANNOUNCEMENT 77-119 WAS POSTED.
(B) POST AT ITS FACILITY AT THE INTERNAL REVENUE SERVICE,
JACKSONVILLE DISTRICT OFFICE,
JACKSONVILLE, FLORIDA, COPIES OF THE ATTACHED NOTICE MARKED
"APPENDIX" ON FORMS TO BE
FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF
SUCH FORMS, THEY SHALL BE
SIGNED BY THE DISTRICT DIRECTOR, INTERNAL REVENUE SERVICE,
JACKSONVILLE DISTRICT,
JACKSONVILLE, FLORIDA, AND SHALL BE POSTED AND MAINTAINED BY HIM FOR
60 CONSECUTIVE DAYS
THEREAFTER IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICE
TO EMPLOYEES ARE
CUSTOMARILY POSTED. THE DISTRICT DIRECTOR SHALL TAKE STEPS TO INSURE
THAT THE NOTICES ARE NOT
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, NOTIFY THE FEDERAL
LABOR RELATIONS
AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER AS
TO WHAT STEPS HAVE BEEN
TAKEN TO COMPLY HEREWITH.
BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DATED: JANUARY 11, 1979
WASHINGTON, D.C.
BSS:HJC
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 EXECUTIVE ORDER 11491, AS AMENDED
LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT REFUSE TO PERMIT THE NATIONAL TREASURY EMPLOYEES UNION,
ACCESS TO SUCH DOCUMENTS AND MATERIALS AS ARE NECESSARY AND RELEVANT TO
THE NATIONAL TREASURY UNION'S PROCESSING OF A GRIEVANCE REGARDING THE
SELECTION PROCESS FOR THE GROUP CLERK GS-322-4, OFFICE OF AUDIT VACANCY
FOR WHICH VACANCY ANNOUNCEMENT 77-119 WAS POSTED.
WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
WE WILL, UPON REQUEST, PERMIT THE NATIONAL TREASURY EMPLOYEES UNION,
ACCESS TO SUCH DOCUMENTS AND MATERIALS AS ARE NECESSARY AND RELEVANT TO
THE NATIONAL TREASURY EMPLOYEES UNION'S PROCESSING OF A GRIEVANCE
REGARDING THE SELECTION PROCESS FOR THE GROUP CLERK GS-322-4, OFFICE OF
AUDIT VACANCY FOR WHICH VACANCY ANNOUNCEMENT 77-110 WAS POSTED.
(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
MATERIALS.
IF ANY 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,
WHOSE ADDRESS IS: SUITE 540, 1365 PEACHTREE STREET, N.E., ATLANTA,
GEORGIA 30309.
/1/ IN REACHING ITS DECISION HEREIN, THE AUTHORITY AFFIRMS THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDATION, SET FORTH IN FOOTNOTE ONE OF
HIS RECOMMENDED DECISION AND ORDER, THAT THE RESPONDENT'S MOTION TO
DISMISS BE DENIED.
/2/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
/3/ AT THE OPENING OF THE HEARING, RESPONDENT MOVED FOR DISMISSAL OF
THE COMPLAINT ON THE GROUND THAT COMPLAINANT, IN VIOLATION OF SECTION
203.2(A)(4) OF THE ASSISTANT SECRETARY'S RULES AND REGULATIONS, HAD
FAILED AND REFUSED TO MEET FOR PURPOSES OF INFORMALLY RESOLVING THE
ALLEGED UNFAIR LABOR PRACTICE. IN SUPPORT OF THE MOTION, RESPONDENT
NOTED, AMONG OTHER THINGS, THAT THE COMPLAINANT, CONTRARY TO PAST
PRACTICE, REFUSED TO MEET FOR PURPOSES OF INFORMALLY DISCUSSING
SETTLEMENT IN ANY OTHER LOCATION THAN ST. PETERSBURG, FLORIDA, WHERE THE
ALLEGED UNFAIR LABOR PRACTICE OCCURRED. THE RECORD REVEALS THAT THE
RESPONDENT TIMELY RAISED THE MATTER WITH THE AREA ADMINISTRATOR PRIOR TO
THE ISSUANCE OF THE NOTICE OF HEARING.
WHILE THE ASSISTANT SECRETARY HAS MADE IT CLEAR THROUGH THE MEDIUM OF
VARIOUS RULINGS AND DECISIONS THAT THE FAILURE TO FOLLOW THE PUBLISHED
RULES AND REGULATIONS MAY CONSTITUTE GROUNDS FOR DISMISSAL, I DO NOT
BELIEVE THAT UNDER ALL THE CIRCUMSTANCES OF THE INSTANT CASE DISMISSAL
IS WARRANTED. THUS, IT IS NOTED THAT THE COMPLAINANT DID NOT
CATEGORICALLY REFUSE TO MEET WITH THE RESPONDENT FOR PURPOSES OF
INFORMALLY DISCUSSING SETTLEMENT, BUT RATHER INSISTED THAT ANY SUCH
MEETING BE HELD IN ST. PETERSBURG WHERE THE ALLEGED UNFAIR LABOR
PRACTICE OCCURRED. ACCORDINGLY, IN THE ABSENCE OF ANY PROVISION IN THE
REGULATIONS SETTING FORTH WHERE SUCH INFORMAL SETTLEMENT DISCUSSIONS
SHOULD BE HELD, I CAN NOT FIND THE COMPLAINANT'S ACTION IN THE ABOVE
RESPECT CONSTITUTED A FAILURE TO COMPLY WITH THE REGULATIONS.
ADDITIONALLY, IT IS NOTED THAT RESPONDENT HAD MADE IT CLEAR THAT IT DID
NOT AGREE WITH THE ASSISTANT SECRETARY'S DECISIONS BASED UPON FACTS
ALMOST IDENTICAL TO THOSE INVOLVED IN THE INSTANT CASE AND WAS IN FACT
APPEALING SUCH A DECISION TO THE COUNCIL. IN THESE CIRCUMSTANCES ANY
ATTEMPTS AT SETTLEMENT WOULD APPEAR TO HAVE BEEN A FUTILE GESTURE.
BASED UPON THE FOREGOING CONSIDERATIONS RESPONDENT'S MOTION FOR
DISMISSAL IS HEREBY DENIED.
/4/ IN ACCORDANCE WITH THE COLLECTIVE BARGAINING AGREEMENT, MS.
COLANGELO WAS ENTITLED TO, AND GIVEN, A COPY OF HER EVALUATION FILE
ALONG WITH THE PROMOTION CERTIFICATE WHICH BEARS THE NAMES OF ALL THE
CANDIDATES, THE CUTOFF SCORE FOR THE HIGHLY QUALIFIED CANDIDATES AND THE
NAME OF THE CANDIDATE SELECTED.
/5/ CF. DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, REGION VIII
REGIONAL OFFICE, A/SLMR 1109, WHEREIN THE ASSISTANT SECRETARY REITERATED
HIS POSITION.