[ v19 p421 ]
19:0421(58)CA
The decision of the Authority follows:
19 FLRA No. 58
DEPARTMENT OF THE TREASURY
UNITED STATES CUSTOMS SERVICE
REGION IV, MIAMI, FLORIDA
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 43-CA-698
DECISION AND ORDER
The Chief Administrative Law Judge issued his Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. Thereafter, the
General Counsel and the Charging Party filed exceptions to the Judge's
Decision and the Respondent filed an opposition to both exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing /1/ and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommended Order.
Following notice to the Charging Party (the Union) of the
Respondent's intent to change its practice of routinely furnishing the
Union with crediting plans with requested in connection with grievances,
the Union requested bargaining as to the Respondent's decision to change
such practice as well as the impact and implementation of that decision.
The Union also requested that the Respondent furnish it with all
crediting plans used by the Respondent in the filling of vacancies in
Region IV. The Respondent refused both requests, /2/ and the Union
filed an unfair labor practice charge alleging that the Respondent
violated section 7116(a)(1), (5) and (8) of the Statute by such refusal.
The Acting Regional Director then issued a complaint in this matter.
Thereafter, the parties entered into a Settlement Agreement which was
approved by the Regional Director on March 23, 1981.
On April 1, 1981, the Union renewed a pre-Settlement Agreement
request for a crediting plan which had been used by Respondent in
filling a vacancy. The original request had been made and denied by the
Respondent in connection with a contemplated grievance over the
nonselection of unit employee Violet Rodriguez. /3/ The Respondent
refused the Union's renewed request for the crediting plan and the Union
informed the Regional Director that it considered this a breach of the
parties' Settlement Agreement. After soliciting the Respondent's
position on the Union's allegation, the Acting Regional Director
determined that the Respondent's refusal constituted a breach of the
Settlement Agreement. The Acting Regional Director set aside the
Settlement Agreement and reissued the complaint in its original form.
After a hearing on the matter, the Judge, noting that the Union's
April 1, 1981 request for the Rodriguez crediting plan was the only
allegation of non-compliance with the Settlement Agreement presented to
the Regional Director, concluded, contrary to the Acting Regional
Director, that the Respondent's denial of the April 1, 1981 request did
not constitute a breach of the Settlement Agreement. The Judge found
that the April 1, 1981 request was the same request made by the Union on
November 1, 1980, at a time when the parties had agreed to resolve
disputes over the disclosure of crediting plans through the parties'
negotiated grievance and arbitration procedures. He found that the
Respondent's refusal to furnish the crediting plan could not form the
basis for a breach of the Settlement Agreement, and therefore concluded
that the Acting Regional Director should not have set aside the
Settlement Agreement and reissued the complaint. Accordingly, he
dismissed the complaint.
The Authority agrees with the Judge's finding that the Respondent's
denial of the Union's April 1, 1981 request was the only instance of
non-compliance with the Settlement Agreement alleged by the Union; that
the request was merely a renewal of a request that was made by the Union
and denied by the Respondent prior to the filing and subsequent
settlement of the complaint; and that the Respondent's refusal of the
April 1, 1981 request was therefore not a breach of the Settlement
Agreement.
The Authority thus concludes, in agreement with the Judge, that the
Acting Regional Director should not have set aside the Settlement
Agreement and reissued the complaint. /4/ Accordingly, the Authority
concludes that the Respondent did not violate the Statute and shall
order that the complaint be dismissed. /5/
ORDER
IT IS ORDERED that the complaint in Case No. 43-CA-698 be, and it
hereby is, dismissed.
Issued, Washington, D.C., July 31, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 43-CA-698
Linda J. Norwood, Esq.
For the General Counsel
Gary Landsman, Esq. /6/
For the Respondent
Keith Poole, Esq.
For the Charging Party
Joseph A. Morris, Esq.
Stuart M. Foss, Esq.
James J. Hicks, Esq.
For Office of Personnel Management, Amicus Curiae Brief
Before: JOHN H. FENTON
Chief Administrative Law Judge
DECISION
Statement of the Case
This case arose pursuant to the Federal Service Labor-Management
Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq., as a result of
an unfair labor practice complaint filed on January 14, 1981, by the
Regional Director, Region IV, Federal Labor Relations Authority. That
complaint was withdrawn on March 23, 1981, upon the approval of a
Settlement Agreement on March 10, 1981. On July 31, 1981, the Regional
Director issued an Order Setting Aside Settlement Agreement and
Reissuing Complaint. The basic issue is whether Respondent violated
Sections 7116(a)(1), (5) and (8) of the Statute by discontinuing its
practice of releasing to the Union, for grievance representation
purposes, the "crediting plans" which it uses in establishing the
relative merit of candidates for promotion. Respondent (and OPM in its
amicus brief) defends on the ground that law and regulation prohibit the
disclosure of such materials to the Union as well as others having no
official need to know, because such disclosure would give unfair
advantage to some candidates or otherwise compromise the selection
process. Respondent presses eleven other arguments in its defense,
including contentions that the Regional Director was without authority
to set aside a Settlement Agreement without affording it a hearing
respecting the alleged breach thereof; and that the National Agreement
executed after these alleged unfair labor practices (but before the
Settlement and claimed breach) constitutes, in effect, a waiver of any
right to disclosure and of the right to seek disclosure through the
unfair labor practice route.
This matter was heard in Jacksonville, Florida, on May 5, 1982. All
parties were represented by counsel and were afforded full opportunity
to adduce evidence, examine and cross-examine witnesses and argue
orally. Upon consideration of the entire record, I make the following
findings of fact, conclusions of law and recommended order.
Findings of Fact
The Union has been, at all material times, the exclusive bargaining
representative of Respondent's employees, and party to successive
collective bargaining agreements with Respondent. For at least three
years, until November, 1979, Respondent routinely furnished the Union,
for purposes of processing merit promotion grievances, with unedited or
"unsanitized" copies of crediting plans. /7/ On October 30, 1979, Labor
Relations Chief Tom Ross wrote Union attorney Keith Poole announcing his
intention to cease the practice of "erroneously" providing information
about crediting plans, and acknowledging his willingness to negotiate on
the so-called impact and implementation of the change. Poole responded
on November 5, by proposing that Respondent continue to provide such
materials and requesting that it negotiate concerning the substance as
well as the impact and implementation of the proposed change. On
November 16, Ross replied that Poole's proposal was not negotiable,
reiterating his October 30 advice that this was required by security
controls applicable to crediting plans pursuant to Customs'
interpretation of FPM Chapter 294, Subchapter 5, and Chapter 337,
Subchapter 3. Those regulations in essence precluded release of such
materials to the public or competitors, providing that they "may only be
made available to persons participating in job element examining in an
official government capacity." Respondent ceased providing such plans on
November 12.
The second refusal to provide crediting plans, which is encompassed
by this complaint, occurred on November 19, 1979, in response the
Union's request for all crediting plans ("complete with the typical
examples used in assessing the various quality levels") used in the
Region (G.C. Exh. 13). Respondent's Director of Personnel Management
refused the request on the ground that Government wide regulations
specifically prohibited the release of such materials (Resp. Exh. 14).
It has not made available an unedited plan since that time, although it
claims that it has shifted from a policy of blanket non-disclosure to a
case-by-case determination whether disclosure is consistent with law and
regulation. The original unfair labor practice charge was then filed on
November 28, 1979.
It is perhaps useful to stop the narrative of events at this juncture
and focus on the nature of a crediting plan. It is an elaborate and
complicated scheme for providing guidance to, and regularizing and
documenting the deliberations of, evaluation boards or panels which must
assess the relative qualifications of candidates for merit promotion.
The Federal Labor Relations Authority recently described crediting plans
as follows: /8/
The qualifications of eligible candidates are evaluated on the
basis of predetermined criteria by agencies using various methods
in accordance with legal and regulatory requirements under
guidelines promulgated by OPM. The criteria provide the standards
against which the candidates' qualifications are measured. One
method of guiding the measurement process, avoiding
inconsistencies in the ratings assigned by various raters, and
providing documentation of the rating process is through the use
of "crediting plans" such as those involved in the present case.
A crediting plan is a set of criteria which reflect the specific
knowledge, skills, abilities, and other characteristics which
management has determined are required for the successful
performance of the job to be filled. Such a plan provides for
each criterion, at each crediting level, definitions and/or
examples of relevant factors such as experience, training, and
education. The raters compare the candidates' backgrounds with
these crediting level definitions and examples to measure the
extent to which each candidate possesses the knowledge, skills,
abilities and other characteristics required for the position as
reflected in the criteria of the crediting plan.
Subchapter S6-1 of FPM Supplement 335-1 instructs agencies to
identify those examination materials, including crediting plans, which
require security controls so as to prevent their disclosure to
unauthorized persons and the risk that such disclosure "might provide an
unfair advantage to some candidates or other wise compromise the utility
of the selection procedure . . . . (It further instructs agencies that)
material covered by the instructions (to panel members) 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 . . . . " OPM, in an effort to avoid
alleged contamination of the rating process, has advised Respondent not
to divulge certain portions of crediting plans. Examples are the
questions asked and factors to be rated in an interview, and detailed
information about the scoring system used in evaluating a candidate's
claimed experience, especially where such claims are difficult or
impossible to verify and the candidate who knows the "answers" sought
can allegedly tailor or slant his application to the disadvantage of
those not privy to such information. /9/
Back to the procedural history. The unfair labor practice charges
filed in November 1979 did not lead to a formal complaint until January
14, 1981. In the interim Customs and the Union negotiated a new
national agreement which became effective on June 30, 1980. That
contract dealt with the nation-wide disclosure problem, of which this
case is a small part, in Article 17, devoted to Merit Promotion. Thus,
Section 7 provides that:
B. The employer will develop numerical crediting plans for use
by Evaluation Boards in measuring the extent to which candidates
possess designated evaluation criteria as set forth in the vacancy
announcement. The crediting plans will include various
definitions or examples of experience, training, education,
personal characteristics and any other relevant factors at each
rating level. The applicant's background will be compared against
the crediting plan definitions for each of the evaluation criteria
to assess the degree to which he possesses the elements being
evaluated.
C. In developing crediting plans, the employer will negotiate
with the union to the extent required by law. Such negotiations,
if they take place, shall be carried out in accordance with the
provisions of Article 36 (Supplemental Agreements).
D. All existing crediting plans will be disclosed to the union
when and if appropriate authorities hold that it is not improper
to do so.
E. The crediting plans referred to in this section shall serve
as the sole basis for the Evaluation Board assessment of the
applicant's potential to serve in the vacant position.
In addition, Section 17 provides in relevant part:
A. In processing or investigating grievances related to
promotion actions taken pursuant to the provisions of this
article, the grievant or his union representative, upon request,
will be provided with the evaluative materials utilized or
generated by the Evaluation Board in rating and ranking qualified
candidates, subject to the following conditions:
(1) release of documents or materials is not precluded by law
or the regulations of appropriate authority;
(2) such materials or documents shall be properly sanitized to
protect the privacy of applicants and Board Members involved in
the promotion actions; . . . .
B. Challenges to the employer's actions in implementation of
sub-section A above shall be resolved under the grievance and
arbitration provisions provided in this agreement.
The unfair labor practice complaint was settled in mid-March 1981.
The Settlement Agreement (G.C. 1(h)), which was approved by the Regional
Director on March 23, disposed of the alleged unfair labor practices
with Respondent's pledge that:
WE WILL, consistent with our past practice as it existed prior
to October 30, 1979, upon request, provide the National Treasury
Employees Union copies of crediting plans which are normally
maintained in the regular course of business, reasonably
available, and necessary for full and proper discussion of
subjects within the scope of collective bargaining and when not
prohibited by law or governing regulation.
WE WILL rescind the letter dated October 30, 1979, wherein we
advised the National Treasury Employees Union that we would not
provide crediting plans upon request by the National Treasury
Employees Union.
WE WILL NOT, in any like or related manner, interfere with,
restrain, or coerce our employees in the exercise of their rights
under the Statute.
Meanwhile, on the day before the Union signed the Settlement
Agreement, and four days before Respondent did, the Director of Customs'
Office of Human Resources sent a memo to all personnel officers on the
subject of releasing crediting plans (Agency Exh. 13). Thus,
unsurprisingly, was set the stage for an argument over the meaning of
the Settlement Agreement before it was even approved. /10/ Referencing
contract Article 17, Section 7(D), the U.S. Code and the FPM Supplement
335-1, the Director reaffirmed guidance received from OPM: that
disclosability decisions were to be made on a case-by-case basis, that
release was appropriate only when it did not provide unfair advantage to
some candidates or compromise the utility of the selection process, and
that all crediting plans will be released "at such point as higher
authority determines that all . . . plans are releasable." Thus,
ostensibly at least, Customs abandoned its practice of flatly refusing
all such requests, and commenced a policy of ad hoc determinations.
On April 1, the Union requested a crediting plan in connection with
the "incipient" grievance of one Violet Rodriguez. The request was
refused on April 13. Reciting the litany of protecting the integrity of
the selection process, the determination was made that disclosure of the
unsanitized plan would be, "in this case," inappropriate. Assurance was
made that, were a prohibited personnel practice identified, necessary
access would be granted "to authorized persons so long as appropriate
protective procedures were followed." (Agency Exh. 4).
The Union complained that such conduct violated the Settlement
Agreement, and the Regional Office of FLRA sought Respondent's position
on the allegation of non-compliance. Respondent provided an elaborate
statement of the laws and governing regulations which it said justified
nondisclosure under the very terms of the Settlement Agreement signed by
the Union and approved by the Regional Director (G.C. Exh. 7). On July
31, 1981, the Acting Regional Director ordered the Agreement set aside
and reissued the Complaint. On August 20, Respondent filed its Answer
and a Motion to Dismiss. It noted that it had never received a
statement or rationale for the decision to set aside the Settlement,
argued its entitlement to a "due process hearing" on the issue of
alleged non-compliance, before being called upon to defend against
pre-settlement unfair labor practice allegations, and requested that its
Motion be referred to the Chief Administrative Law Judge. On August 28,
Counsel for the General Counsel opposed the Motion, arguing specifically
that the Statute and Regulations contemplated no such hearing, but in
language broad enough to comprehend a lack of the right to such a
hearing at any stage. The matter was referred to me, and I denied the
motion without prejudice to Respondent's right to renew it at the
hearing. It was renewed (Tr. 49) and the General Counsel conceded that
it had to present evidence of non-compliance "as a jurisdictional
matter" (Tr. 29).
Discussion
Before confronting the question whether the allegations of the
Complaint enjoy the requisite legal and factual support, it is first
necessary to determine that the Regional Director had authority to set
aside the Settlement Agreement on the ground it had been breached, and
was therefore free to reissue Complaint. It is clear that Respondent
refused to furnish a crediting plan in connection with the "incipient"
grievance of Violet Rodriguez within a few weeks of entering into the
Settlement Agreement. Respondent also refused requests for such
materials after the Settlement was executed in connection with an Aiello
grievance (G.C. Exhs. 23 and 24) and another request (G.C. Exh. 16).
However, considerations of due process and fairness persuade me that the
determination whether compliance with the Settlement occurred should be
based on the Rodriguez matter only, i.e., that it would be inappropriate
to dwell on matters of arguably litigated noncompliance, which were
never clearly brought to Respondent's attention as breaches of the
Agreement.
I come to this conclusion for the following reasons. It was the
Rodriguez matter which prompted a complaint of noncompliance from the
Union, and a request from the Regional Office for a statement of
Respondent's position. Thereafter the Settlement Agreement was set
aside and the Complaint simultaneously reissued in its original form,
i.e., without reference to any incident alleged to constitute a new
unfair labor practice and/or a breach of the Settlement. Respondent
then filed a Motion to Dismiss the Regional Director's Order Setting
Aside Settlement Agreement and Reissuing Complaint. It argued,
erroneously, entitlement to an evidentiary hearing on the question of
compliance with the Settlement before Complaint was reissued. /11/ The
General Counsel filed an Opposition thereto, contending, quite
correctly, that a Regional Director's power to issue complaint is
unreviewable. While technically on target as respects the power to
issue complaint, it totally ignored the fact that Respondent did,
indeed, have a right to litigate the claimed breach of the Settlement.
While the two arguments thus passed one another like two ships in the
night, I think it fair to conclude that the General Counsel was urging
the rather breathtaking proposition that the power to reissue a
complaint addressed to matters which were the subject of a settlement
agreement simply cannot be reviewed. Not only is the Opposition filed
herein most susceptible of such a reading but this view is perfectly
consistent with the argument advanced by the General Counsel, and
rejected by the Authority, in Norfolk Naval Shipyard, (10 FLRA 641;
December 13, 1982). /12/
For procedural reasons I refused to rule on the motion to dismiss
unless and until it was renewed at the hearing. As noted, General
Counsel conceded at the opening of the hearing that noncompliance had to
be proved as a "jurisdictional matter," i.e., as a condition precedent
to any unfair labor practice findings. However, at no time did the
General Counsel identify any specific incident of noncompliance (except
for the Rodriguez matter previously brought the Respondent's attention).
Thus Respondent was never put on notice that any particular matter, in
addition to the Rodriguez incident, was or would be urged as evidence of
a breach of the Settlement terms, and it did not truly join issue on
either the refusal to furnish crediting materials in conjunction with
the Aiello grievance (G.C. Exhs. 23 and 24) or the other matter found at
G.C. Exh. 16, both of which arose while the Settlement was in force.
While Respondent did not resist the introduction of such evidence, it is
to be noted that there is evidence of many similar incidents which arose
between the time of the allegations covered by the Complaint and the
Settlement, and even after the Settlement was set aside. When I asked
whether the General Counsel was not beating a dead horse with so much
essentially undisputed evidence of repeated demands and refusals, the
explanation of that approach was that it would establish that
Respondent's claimed change from a policy of flatly refusing all such
requests to one of deciding case-by-case whether release was consistent
with regulation was, in fact, no change at all because the consistent
response was always to deny the request.
Finally, it is to be noted that Respondent joined issue on the
Rodriguez matter, seeking to establish that it was not an "actionable"
grievance with therefore could not be a proper predicate for an
information request because such materials were not necessary or
relevant. Given the lack of specific notice concerning alleged
noncompliance and the manner in which the case was tried and briefed, I
conclude that only the Rodriguez matter was properly placed in issue on
the question whether Respondent had complied with the terms of the
Settlement Agreement.
To recapitulate, the Settlement constituted a pledge by Respondent to
return to its practice of furnishing crediting plans, as it existed
prior to October 30, 1979 and when not prohibited by law or governing
regulation. The threshold question here, then, is whether the refusal
to turn over crediting plan materials in connection with the "incipient"
grievance of Rodriguez was violative of that Agreement and therefore
justified the Regional Director's determination to reissue Complaint.
While much of this dispute centered upon whether governing regulations
provided a continuing defense for such refusal, and whether adherence to
Respondent's pre-October practice would in fact require such disclosure,
there is also the question whether, given the contractual undertaking to
resolve disputes over the Union's right to evaluative materials used in
the merit promotion process, Respondent had any obligation to furnish
such materials.
The facts of the Rodriguez incident are as follows. On November 21,
1980, approximately one year after the alleged unfair labor practices,
and four months before the execution of the Settlement Agreement at
issue, Acting Union President Casale, on behalf of Rodriguez, requested
certain evaluative materials used in filling a position set forth in
Vacancy Announcement IV-222-RKB (Sr. Customs Inspector GS-11, Tampa).
On December 4, Personnel Director Babcock furnished some of the
requested materials, but refused to release the crediting plans as
precluded by regulations (G.C. Exh. 20). Rodriguez's nonselection was
then grieved on January 12, 1981 (G.C. Exh. 21) and, according to
Casale, the grievance was rejected as untimely filed. Notwithstanding
some suggestion that delayed delivery of those materials furnished
contributed to the late filing (as well as an admission that the
intervening holidays were also a cause), no appeal was taken. Nor was
the failure to provide the crediting plan materials, as such, grieved
under the terms of the contract then in force, although it specifically
provided (Article 17, Section 17B) that challenges to the employer's
failure to provide evaluative materials related to merit promotions
"shall be resolved under the grievance and arbitration provisions
provided in this agreement." Instead, the Union awaited execution of the
Settlement Agreement and, on April 1, requested precisely the same
materials as part of an "incipient grievance" on behalf of Rodriguez.
"Incipient," according to Casale (Tr. 211), was used because the Union
was "trying to set it up as a continuing grievance."
Respondent contends that the grievance was time-barred, and that the
information requested therefore could not be relevant and necessary to
the discharge of any Union obligation to represent Rodriguez. In
essence it argues that the right to such information cannot survive
extinguishment of the right to grieve, and it relies on the Authority's
holding that information sought by a bargaining agent must be shown to
be necessary and relevant to the discharge of the agent's Statutory
responsibilities. /13/ That holding is arguably clouded by the
Authority's decision in U.S. Customs Service, Region VII, Los Angeles,
California, 10 FLRA 251, in which it explicitly refrained from passing
upon Respondent's contention that there was no duty to furnish
information respecting a grievance which was asserted not to be
grievable, but instead ordered its production on the ground that Section
7114(b)(4) "broadly requires management to furnish the exclusive
representative with requested information 'to the extent not prohibited
by law' . . . (and which is) . . . 'reasonably available and necessary
for full and proper discussion, understanding, and negotiation of
subjects within the scope of collective bargaining.'"
I see no inconsistency between those decisions. IRS, Buffalo holds
that the Authority has the power to determine whether data requested is
analytically, or logically, relevant to, and therefore necessary for,
the resolution of a grievance. Customs holds that the question whether
a matter is grievable, or a grievance filed is viable, is a question of
arbitrability which must be submitted to the arbitrator. Thus no
contention would lie, in a proceeding before this Agency, that
information could have no useful purpose because related to a grievance
which was late filed, or which does not embrace a subject matter covered
by the grievance clause. There are matters committed to the arbitral
process, and I am precluded from addressing them. Respondent's defense
therefore fails.
The question remains, however, whether the Union has forfeited its
right to complain about the nonproduction of the requested materials
because it had failed to pursue its contractual obligation to resolve
such questions exclusively through the grievance/arbitration process. I
read the contract's provision that challenges to the employer's failure
to provide evaluative materials related to promotions "shall be
resolved" under the contract's grievance and arbitration provisions to
be a clear and unequivocal waiver of the right to pursue such matters
via the Statute. /14/ Here, the Union did not even attempt to grieve
the failure to provide all the evaluative materials it had requested in
November on behalf of Rodriguez. Having failed to follow the route of
relief prescribed by the contract, it four months later attempted to
resurrect the issue as a matter of noncompliance with the Settlement
Agreement.
Respondent, having agreed to provide such materials (when not
precluded by law or governing regulation), perhaps ought not be heard to
assert in its defense that the Union had waived the right to ask for
them. The fact that the Union has agreed with Respondent that it will
not use the unfair labor practice process to resolve such issues may
preclude access to that forum, but should ordinarily be no obstacle to
the Authority's exercise of its power to police its settlement
agreements. Here, however, the need for the requested information did
not arise during, or shortly before the term of the Settlement, so as to
clearly vindicate a request pursuant to it, but rather arose months
before, vindicate a request pursuant to it, but rather arose months
before, while the contract was fully in force, i.e., at a time when it
was unaffected by the Settlement.
I am persuaded that the Union's failure to pursue its request
pursuant to its contractual commitment to do so via the
grievance/arbitration process should be the end of the matter, and that
it ought not be permitted to ignore that agreed-upon avenue of relief
and then be permitted months later to revive or resurrect the claim in
the Statutory forum it had waived by giving a Settlement Agreement
retrospective effect. I therefore conclude that Respondent's conduct
did not breach that Agreement and that the Acting Regional Director was
without authority to set aside the Agreement and reissue the Complaint.
/15/
Having concluded that the evidence will not support a finding that
Respondent failed to comply with the Settlement Agreement, I recommend
that the Authority issue the following:
ORDER
The Complaint in 43-CA-698 be, and the same hereby is, DISMISSED.
JOHN H. FENTON
Chief Administrative Law Judge.
Dated: April 6, 1984
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ The Authority notes that the hearing was held in Miami, Florida
on May 5, 1982. The Chief Judge's inadvertent reference to Jacksonville
is hereby corrected.
/2/ The Respondent did offer to bargain as to the impact and
implementation of its decision.
/3/ That grievance was thereafter filed, but was denied as untimely
and no appeal was filed under the parties' collective bargaining
agreement.
/4/ See Veterans Administration Medical Center, Bath, New York and
Veterans Administration, Washington, D.C., 12 FLRA 552, 556-7 (1983);
Norfolk Naval Shipyard, 10 FLRA 641 (1982).
/5/ In view of this disposition, the Authority finds it unnecessary
to reach and does not adopt the Judge's finding, in effect, that the
Union waived its statutory right to resolve disputes over the disclosure
of crediting plans in the unfair labor practice forum. Cf. U.S. Customs
Service, Region VIII, San Francisco California, 18 FLRA No. 51 (1985)
(wherein the Authority, in a case involving the same national agreement
as herein, adopted the Judge's finding that the Union had contractually
waived its right to file an unfair labor practice charge over the
non-disclosure of a crediting plan). Further, the Authority
specifically does not adopt the Judge's discussion with regard to the
private sector doctrine of deferral to negotiated arbitration procedures
enunciated by the National Labor Relations Board in Collyer Insulated
Wire, A Gulf and Western Systems Co., 192 N.L.R.B. 837 (1971). See
section 7116(d) of the Statute. See also Federal Aviation
Administration, Spokane Tower/Approach Control, 15 FLRA No. 135 (1984).
/6/ On February 27, 1984, Allan L. Martin entered an appearance for
Respondent, replacing Mr. Landsman.
/7/ While this was done on at least 15 occasions for Union agent
Rizzo, there is no evidence and indeed no serious contention, that
blanket requests were honored. Nevertheless, the second alleged refusal
involved such a request.
/8/ National Treasury Employees Union and NTEU Chapters 153, 161 and
183 and U.S. Customs Service, Region II, 11 FLRA 209.
/9/ It is to be noted that the Authority recently addressed the
negotiability of crediting plans in a case involving NTEU and Customs.
(See footnote 3). It rejected the defense that Subchapter 56 of FPM
Supplement 335-1 precluded disclosure of crediting plans for negotiating
purposes, holding that release was not inconsistent with the FPM because
the claimed contamination of the selection process would not, in fact,
occur, if all candidates had equal access to the content of crediting
plans. It therefore did not address the question whether those FPM
provisions are government-wide rules and regulations.
/10/ Arguably the Agreement was a nudum pactum, devoid of meaning and
substance. It appears to have been acceptable to each party precisely
because of its ambiguity: it simultaneously promised a return to the
former practice of releasing such materials (in which law and regulation
were, assertedly, erroneously disregarded), and an excuse for not doing
so when such conduct is prohibited by law or regulation. Each party's
wish was thus accommodated by the absence of any clear commitment. The
issue whether a return to the 1979 practice was consistent with law and
regulation was simply avoided, and its determination postponed.
/11/ It of course had the right to litigate this matter at the
commencement of the unfair labor practice hearing. General Counsel
conceded as much, but not until the trial was underway.
/12/ See also VA Medical Center, Bath, NY, (12 FLRA 552), in which
the Authority adopted Judge Louis Scalzo's dismissal of allegations
which had been the subject of a Settlement Agreement, where the General
Counsel did not come forward with the Settlement, the document setting
it aside, or any evidence indicating noncompliance with its terms.
/13/ IRS, Buffalo District, Buffalo, NY, 7 FLRA 654.
/14/ I would recommend application of the so-called Collyer doctrine
(Collyer Insulated Wire, et al., 192 NLRB 837). It is a long recognized
principle, in the private sector, under which the Board defers to the
grievance/arbitration machinery of the parties' contract in appropriate
cases, so as to give "hospitable" acceptance to the agreement bargained,
even though the action complained of might otherwise constitute a
violation of law.
/15/ There is no need to address the allegations of the Complaint, as
to which I have made the necessary findings of fact for the Authority's
purposes, should it not accept this recommendation.