[ v26 p407 ]
26:0407(52)CA
The decision of the Authority follows:
26 FLRA No. 52
DEPARTMENT OF THE ARMY
HEADQUARTERS, XVIII AIRBORNE CORPS
AND FORT BRAGG, FORT BRAGG,
NORTH CAROLINA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1770, AFL-CIO
Charging Party
Case Nos. 4-CA-50565
4-CA-60103
DECISION AND ORDER
I. Statement of the Case
This consolidated unfair labor practice case is before the Authority
on exceptions filed by the Respondent and on a cross-exception filed by
the General Counsel. The issue before the Authority is whether the
Department of the Army, Headquarters, XVIII Airborne Corps and Fort
Bragg, Fort Bragg, North Carolina (Respondent or Agency) committed an
unfair labor practice under section 7116(a)(1), (5) and (8) of the
Federal Service Labor-Management Relations Statute (the Statute) when it
refused to furnish certain information requested by the Union under
section 7114(b)(4) of the Statute. The Union asserted that the
information was necessary to process a grievance (Case No. 4-CA-50565)
and to determine whether to file a grievance (Case No. 4-CA-60103).
II. Background
The amended consolidated complaint alleged that the Agency refused to
provide the Union with certain information requested by the Union: (a)
in connection with a grievance filed by employee Kenneth Daley,
concerning his non-selection for the best-qualified list established
pursuant to Vacancy Announcement No. 24-85 (Case No. 4-CA-50565); and
(b) in connection with an investigation to determine whether to file a
grievance concerning the non-selection of employee James Brown for the
best-qualified list established pursuant to Vacancy Announcement No.
285-85 (Case No. 4-CA-60103). The Respondent admitted that it did not
furnish the information but denied that its failure to furnish the
information violated Section 7114(b)(4) or section 7116(a)(1), (5) and
(8) of the Statute.
During the times pertinent to both cases, the Union and the
Respondent were parties to a Memorandum of Agreement for the Fort Bragg
Recruitment and Placement Plan. The Recruitment Plan established
policies and procedures for merit staffing from among the best-qualified
candidates through internal placement and outside hiring. Among the
procedures used to evaluate candidates under the Recruitment Plan are
crediting plans, which are used to rate and rank eligible candidates
against the knowledges, skills, abilities, and other characteristics
("KSAOs") identified for the position to be filled. The Recruitment
Plan states that files sufficient to allow reconstruction of competitive
actions will be maintained for each action for five years; that the
files will include certain information including the evaluation methods
and actual evaluation of candidates; and that access to a file is
permissible when an employee or his representative needs information to
prepare and present a formal grievance relating to a promotion action.
Case No. 4-CA-50565
The Respondent posted Vacancy Announcement No. 24-85 for a Safety
Occupational Health Specialist, GS-9, at Fort Bragg. Employee Kenneth
Daley applied for the position but was not selected. He was not rated
best-qualified nor was he referred for an interview. Daley and his
Union representative filed a grievance alleging that Daley was not
properly evaluated under the crediting plan. The Union requested the
following information from the Respondent in order to process the
grievance: (1) a copy of the crediting plan used by the panel to grade
applications under the announcement; (2) copies of the KSAOs submitted
by all applicants referred under the announcement; and (3) a copy of
any written instructions given to panel members in the announcement.
The Agency denied the grievance as untimely filed, and denied the
request for information on the ground that it was not deemed relevant or
necessary to process the grievance. The Agency also stated that Daley
was not referred as a best-qualified candidate because his application
did not adequately address the requirements of KSAO #2 (physical
security surveys and inspection).
The Union submitted the grievance to Step 2 and repeated its request
for information. The Agency again refused to furnish the crediting
plan, an unsanitized copy of the KSAOs of all applicants, and written
instructions to panel members. However, as a result of a Step 2
grievance meeting, the Respondent offered to resolve Daley's grievance
by convening applied under Announcement 24-85. In the event that the
new panel concluded that Daley should have been among the best
qualified, the Agency proposed affording him priority consideration for
the next appropriate vacancy. If the panel concluded otherwise, the
Agency stated that Daley would receive no further entitlement under that
announcement. Daley accepted the offer as to the new panel but stated
that he would not relinquish his statutory right to pursue the
greivance. The Agency withdrew the offer and the grievance proceeded to
Step 3.
At Step 3 the Union requested that the Agency provide a copy of the
crediting plan and an unsanitized copy of the entire "promotion package
file" as being relevant to the grievance and necessary to prepare for
possible arbitration. The Agency denied the grievance at Step 3 and
repeated its refusal to supply the information requested. The grievance
was submitted to arbitration. According to the Administrative Law
Judge's decision, an arbitration hearing date has been deferred pending
the conclusion in these proceedings.
Case No. 4-CA-60103
The Respondent posted Vacancy Announcement No. 285-85 for the
position of Construction Inspector GS-7 at Fort Bragg. James Brown, a
unit employee and disabled veteran, applied for the position but was not
referred for an interview. Brown sought the Union president's
assistance regarding the failure to refer him. In order to determine
whether a grievance should be filed, the Union president requested from
the Respondent: (1) a copy of the crediting plan used for the
announcement; (2) a copy of the KSAOs of all applicants referred for
interviews; (3) a copy of the written instructions to panel members or
summary of oral instructions; and (4) the number of applicants
interviewed who were disabled veterans.
The Agency responded by advising the Union that the crediting plan
could not be provided because its release provided an unfair advantage
to an individual, and some candidates could tailor their KSAOs to fit
the highest level so as to make it difficult for management to make
valid distinctions among candidates. The Agency refused to furnish
KSAOs of other candidates, as well as written instructions to panel
members, since it did not appear that they were relevant or necessary to
process Brown's complaint. As to information regarding other disabled
veterans, the Agency stated that veterans preference is not considered
in promotion procedures, and therefore did not furnish information as to
the number of applicants interviewed who were disabled veterans.
III. Administrative Law Judge's Decision
The Judge stated that under section 7114(b)(4) of the Statute, an
agency must furnish to a union requested data that is necessary to
enable a union to perform its representational functions, including
effective evaluation and processing of grievances. The Judge held that
in these cases the crediting plan, as well as the KSAOs and other
material requested, were necessary and relevant to the proper
representation by the Union of both Daley and Brown. The Judge found
that it would be difficult, if not impossible, for the Union to
ascertain whether the employees were rated properly without examining
the plan and comparing the KSAOs of the other applicants. The Judge
further found that without the information, the Union cannot ascertain,
in either case, whether rankings followed the crediting plan and whether
the process was correctly pursued unless it has the KSAOs of the
applicants.
The Judge noted that in the Recruitment Plan the Agency had agreed to
retain a promotion checklist (covering such items as evaluation of
candidates, test scores, and evaluation methods), and that an employee
or his representative may have access to the checklist when it is needed
to prepare a grievance. The Judge found the data requested by the Union
on behalf of Daley and Brown was necessary and relevant to the
processing of a grievance in one instance, or in making a decision
whether to file a grievance in the other. The Judge also found that in
order to fulfill its representational role properly, the Union must have
the data which was utilized by the Agency raters to make proper
comparisons and pass judgment on the correctness of the selection
process. Finally, the Judge concluded that the release of the data
requested in both cases was not prohibited by law, and that neither the
Freedom of Information Act nor FPM Supplement 335-1 prohibits the Agency
from furnishing the crediting plan and related data.
IV. Positions of the Parties
In its exceptions, the Respondent argues that the Judge incorrectly
held that the release of the data requested is not prohibited by law and
is consistent with FPM Supplement 335-1. The General Counsel opposed
the Respondent's exceptions and cross-excepted to the Judge's failure to
direct the Respondent to waive applicable time limits for a grievance to
be filed on behalf of James Brown after the Union's review of the
requested information.
Subsequently, by letter of January 8, 1987, the Office of Personnel
Management requested permission to file an amicus brief in support of
the Respondent. We granted OPM's request and allowed the parties to the
case to file responses to OPM's brief. The General Counsel and the
Union filed responses.
OPM argues that section 7114(b) does not require disclosure of
information to a union for the purpose of preparing or pursuing a
grievance under section 7121 of the Statute, but requires disclosure
only of information used in the negotiation process itself. OPM
acknowledges that the Authority's decisions are to the contrary, but
urges that they be reconsidered and overruled. OPM also contends that
disclosure of the crediting plans in this case is prohibited by section
7121(c)(4) because: (1) crediting plans are examination material and
are therefore part of the examination process excluded from coverage of
the grievance procedure; and (2) the grievances in this case concerned
appointments, and the negotiated grievance procedure can not be used to
challenge an agency's appointment or certification for appointment.
Finally, OPM argues that under no circumstances could the crediting
plans have been lawfully disclosed because FPM Supplement 335-1
Subchapter S6 and 5 CFR Part 300 forbid their disclosure.
In response to OPM's brief, the General Counsel contends that
information that is necessary and relevant to the processing of
grievances is disclosable to the exclusive representative under section
7114(b)(4) of the Statute. The General Counsel asserts that a grievance
adjustment is an integral part of the collective bargaining process and,
therefore, OPM's argument that a grievance does not involve a matter
within the scope of collective bargaining is without merit. Further,
the General Counsel contends, contrary to OPM, that section 7121(c)(4)
does not bar the grievance in this case. Finally, the General Counsel
asserts that disclosure of the crediting plans is not barred by the FPM
because even assuming that the FPM has the force and effect of law, the
FPM itself does not prohibit disclosure of the crediting plans.
The Union also contends that OPM's arguments are without merit,
noting among other things that a crediting plan is not an examination
within the meaning of section 7121(c)(4) of the Statute.
V. Analysis
A. Whether the Respondent Was Required by Section
7114(b)(4) of the Statute to Furnish the Requested Data
to the Union
Under section 7114(b)(4) of the Statute, an agency's obligation to
negotiate in good faith includes the obligation to furnish to the
exclusive representative, upon request and "to the extent not prohibited
by law," data which is necessary to enable a union to fulfill its
representational functions. We reject OPM's assertion that a union is
not entitled under section 7114(b)(4) to information in connection with
preparing or pursuing a grievance, and find, in agreement with the
Judge's reasoning and conclusion, that the data requested by the Union
in these cases was necessary to enable it to fulfill its
representational functions. See Internal Revenue Service, National
Office and National Treasury Employees Union, 21 FLRA No. 82 (1986),
slip op. at 3; Bureau of Alcohol, Tobacco and Firearms, National Office
Washington, D.C., 18 FLRA 611 (1985). We therefore adopt the Judge's
discussion of this aspect of the consolidated complaint, noting
particularly the absence of any exceptions by the Respondent on this
point.
In its exceptions, the Respondent repeats arguments made to the Judge
that release of the requested data is "prohibited by law." We agree with
the Judge's reasoning and conclusion that Respondent has not
demonstrated that release of the data is prohibited by law. As the
Judge properly noted, the Freedom of Information Act does not prohibit
release of data; rather, it permits agencies to invoke certain
exceptions to withhold data falling within those exceptions. /*/ Thus,
the Freedom of Information Act does not prohibit the release of the data
within the meaning of section 7114(b)(4) of the Statute.
Similarly, the Federal Personnel Manual does not prohibit the release
of the data in these cases. Even if the relevant portion of the FPM is
a "law" within the meaning of section 7114(b)(4), as the Agency and OPM
assert, we find that it would not prohibit the release of data in the
circumstances of these cases.
In National Treasury Employees Union and Department of the Treasury,
U.S. Customs Service, 23 FLRA No. 91 (1986), we addressed the
negotiability of a proposal concerning the release and disclosure of
crediting plans and related rating information. We found that the
proposal was outside the duty to bargain because it required the blanket
disclosure of existing agency crediting plans without regard to whether
release of those plans would undermine the fairness and validity of the
selection procedure. We also found, however, that under FPM Supplement
335-1, subchapter S6, release of crediting plans is authorized where the
release would not create any unfair advantage to some candidates or
compromise the utility of the selection process. A determination as to
whether release of crediting plans would create an unfair advantage or
compromise the utility of the selection process depends upon the
particular circumstances present and consequently should be made on a
case-by-case basis.
In the cases under consideration, we find that disclosure of the
requested data would not create an unfair advantage to some candidates
or compromise the utility of the Agency's selection process and,
therefore, disclosure would not be contrary to the requirements of the
FPM. The requests are limited to two specific selection actions and do
not require the blanket disclosure of all agency crediting plans.
Compare Department of Treasury, U.S. Customs Service, 23 FLRA No. 91.
The crediting plans in these cases will be subject to limited disclosure
to the Union to fulfill its representational duties. We believe that
disclosure under these circumstances will not result in an unfair
advantage to prospective candidates (the subject selection actions have
been substantially completed) and that disclosure will not destroy the
integrity of the Agency's selection process. As the Judge noted, unit
employees, who may be Union members, have sat on the rating panel and
have had access to the crediting plan; and there was no evidence that
in the past the Union had disseminated the information so as to
prejudice the selection process. We therefore find that the release of
the data requested is not prohibited by law and is not inconsistent with
the FPM. Finally, to the extent that OPM alleges that the material
sought by the Union and the employees' grievances are excluded from
coverage of negotiated grievance procedures such allegations in essence
challenge the grievability and arbitrability of the grievances, a matter
which is not at issue in this case.
B. Request for Waiver of Time Limits for Filing Grievance
The General Counsel cross-excepted to the Judge's failure to direct
the Agency to waive all applicable time limits for filing a grievance on
behalf of James Brown (Case No. 4-CA-60103). We conclude that a waiver
of the time limits imposed by the parties' negotiated grievance
procedure, under these circumstances, would not carry out the purpose of
the Statute. The Union was not prevented from filing a timely
grievance. If the Union subsequently determined that the employee's
claim was without merit, it could have withdrawn the grievance.
Therefore, the General Counsels cross-exception is denied.
VI. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, we have reviewed the rulings of Judge
made at the hearing, find that no prejudicial error was committed, and
affirm those rulings. We have considered the Judge's Decision and the
entire record, including the submissions of the parties and OPM, and
adopt the Judge's findings and conclusions as discussed above.
Therefore, having found that the Agency was obligated to provide the
information requested by the Union, we conclude that the Agency violated
section 7116(a)(1), (5) and (8) in Case Nos. 4-CA-50565 and 4-CA-60103
when it failed to furnish the Union with necessary information in
accordance with section 7114(b)(4) of the Statute. In ordering the
Agency to furnish the Union with the requested data, we do so with the
expectation that the Union will use the data solely for the fulfillment
of its representational function in connection with the two matters
involved in the instant cases.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Statute, the
Department of the Army, Headquarters XVIII Airborne Corps and Fort
Bragg, Fort Bragg, North Carolina shall:
1. Cease and desist from:
(a) Failing and refusing to furnish the American Federation of
Government Employees, Local 1770, AFL-CIO, the exclusive representative
of its employees, with a copy of all necessary and relevant documents
and materials requested by such representative in connection with the
processing of a grievance filed by unit employee, Kenneth Daley,
regarding the selection process for the position of Safety and
Occupational Health Specialist, GS-018-09, and in connection with the
filing of a potential grievance on behalf of unit employee James Brown
regarding the selection process for the position of Construction
Inspector, GS-809-07.
(b) In any like or related manner interfering with, restraining or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action:
(a) Upon request, furnish to the American Federation of Government
Employees, Local 1770, AFL-CIO, the employees' exclusive representative,
a copy of all necessary and relevant documents and materials requested
by such representative in connection with the processing of a grievance
filed by unit employee, Kenneth Daley, regarding the selection process
for the position of Safety and Occupational Health Specialist,
GS-018-09.
(b) Upon request, furnish to the American Federation of Government
Employees, Local 1770, AFL-CIO, the employees' exclusive representative,
a copy of all necessary and relevant documents and materials requested
by such representative in connection with the filing of a potential
grievance on behalf of unit employee James Brown regarding the selection
process for the position of Construction Inspector, GS-809-07.
(c) Post at its facilities at Fort Bragg, North Carolina, copies of
the attached Notice on forms to be furnished by the Federal Labor
Relations Authority. Upon receipt of such forms, they shall be signed
by the Chief of Management Employee Relations Division, Civilian
Personnel Office, Fort Bragg and shall be posted and maintained for 60
consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to ensure that such
notices are not altered, defaced or covered by any other material.
(d) Notify the Regional Director, Region IV, Federal Labor Relations
Authority, in writing, within 30 days from the date of this Order, as to
what steps have been taken to comply.
Issued, Washington, D.C., March 31, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
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 fail or refuse to furnish, upon request by the American
Federation of Government Employees, Local 1770, AFL-CIO, the exclusive
representative of its employees, a copy of all necessary and relevant
documents and materials requested by such representative in connection
with the processing of a grievance filed by unit employee, Kenneth
Daley, regarding the selection process for the position of Safety and
Occupational Health Specialist, GS-018-09, and in connection with the
filing of a potential grievance on behalf of unit employee James Brown
regarding the selection process for the position of Construction
Inspector, GS-809-07.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, upon request, furnish to American Federation of Government
Employees, Local 1770, AFL-CIO, the employees' exclusive representative,
a copy of all necessary and relevant documents and materials requested
by such representative in connection with the processing of a grievance
filed by unit employee, Kenneth Daley, regarding the selection process
for the position of Safety and Occupational Health Specialist,
GS-018-09.
WE WILL, upon request, furnish to American Federation of Government
Employees, Local 1770, AFL-CIO, the employees' exclusive representative
a copy of all necessary and relevant documents and materials requested
by such representative in connection with the filing of a potential
grievance on behalf of unit employee James Brown regarding the selection
process for the position of Construction Inspector, GS-809-07.
Chief, Management Employee
Relations Division
Dated: . . . By: . . . (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region IV, Federal Labor Relations Authority, whose address
is: 1371 Peachtree Street, NE., Suite 736, Atlanta, GA 30367, and whose
telephone number is: (404) 347-2324.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case Nos.: 4-CA-50565
4-CA-60103
DEPARTMENT OF THE ARMY HEADQUARTERS
XVIII AIRBORNE CORPS AND FORT
BRAGG, FORT BRAGG, NORTH CAROLINA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 1770, AFL-CIO
Charging Party
Captain Timothy W. Lucas, Esq.
For the Respondent
Richard S. Jones, Esq.
For the General Counsel
Reinhard U. Witiak
For the Charging Party
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
Pursuant to an Amended Consolidated Complaint and Notice of Hearing
issued on December 11, 1985 by the Regional Director for the Federal
Labor Relations Authority, Region IV, a hearing was held before the
undersigned on February 25, 1986 at Ft. Bragg, North Carolina.
These cases arose under the Federal Service Labor-Management
Relations Statute, 5 U.S.C. 7101, et seq. (herein called the Statute).
Case No. 4-CA-50565 is based on a charge filed on June 10, 1985 by
American Federation of Government Employees, Local 1770, AFL-CIO (herein
called the Union) against Department of the Army, Headquarters XVIII
Airborne Corps and Fort Bragg, Fort Bragg, North Carolina (herein called
the Respondent). Case No. 4-CA-60103 is based on a charge filed on
November 15, 1985 by American Federation of Government Employees, Local
1770, AFL-CIO against Department of the Army, Headquarters XVIII
Airborne Corps and Fort Bragg, Fort Bragg, North Carolina.
The Amended Consolidated Complaint alleged, in substance, that: (a)
in connection with a grievance filed by Kenneth Daley, an employee,
concerning his non-selection for the best qualified list in re Vacancy
Announcement No. 24-85, the Union requested certain information from
Respondent which it failed and refused to provide (Case No. 4-CA-50565);
(b) in connection with an investigation to determine whether to file a
grievance concerning the non-selection of James Brown, an employee, for
the best qualified list established pursuant to Vacancy Announcement No.
285-85, the Union requested certain information from Respondent which it
failed and refused to provide (Case No. 4-CA-60103). By the failure and
refusal to furnish the requested information in both cases, it is
alleged that Respondent refused to comply with Section 7114(b)(4) of the
Statute, refused to bargain collectively with the Union, and has
violated Section 7116(a)(1), (5) and (8) of the Statute.
Respondent's Answer to the Amended Consolidated Complaint, filed on
December 27, 1985, while admitting it did not furnish certain of the
requested information which forms the subject of these cases, denied
that such failure or refusal was an abridgement of 7114(b)(4) of the
Statute or that it violated 7116(a)(1), (5) and (8) thereby.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter, briefs were filed with the
undersigned which have been duly considered. /1/
Upon the entire record herein, from my observation of the witnesses
and their demeanor and from all of the testimony and evidence adduced at
the hearing, I make the following findings and conclusions:
Findings of Fact
1. At all times material herein the Union has been, and still is,
the exclusive representative of all civilian employees in specified
tenant units employed at Fort Bragg, North Carolina, excluding all
management officials, professional employees, guards and supervisors.
2. At all times material herein, the Union and Respondent have been
parties to a collective bargaining agreement covering the aforesaid
employees at Fort Bragg, North Carolina.
3.(a) At all times material herein the Union and Respondent were
parties to a Memorandum of Agreement For the Fort Bragg Recruitment and
Placement Plan entered into on May 6, 1982. The said Recruitment and
Placement Plan, /2/ which became effective in June, 1982, set forth
policies and procedures re the recruitment and placement of employees in
compliance with merit systems principles and requirements imposed by
Office of Personnel Management (OPM) and Department of the Army.
(b) The Recruitment Plan provides for merit staffing from among the
best qualified candidates through internal placement and outside hiring.
Under the Recruitment Plan, Vacancy Announcements are issued,
application thereunder accepted, and candidate evaluation procedures
established. These procedures include the use of a Crediting Plan or
rating schedule to rate and rank eligible candidates against the
Knowledge, Skills, Abilities and Other Characteristics (hereinafter
referred to as KSAO's) identified for the position to be filled. Credit
for rating elements of experience, appraisals, training, education,
awards, etc. is given only in terms of the degree to which they reflect
that the applicant possesses the KSAO's specified in the job analysis.
The Crediting Plan specifies how each KSAO is to be measured and the
point values to each.
(c) Paragraph 4-10 of the Recruitment Plan states that a file
sufficient to allow re construction of the action will be maintained for
each competitive action for five years; that the files will include
information listed at Appendix A, "Promotion Checklist"; /3/ that
access is permissible when an employee or his representative needs
information to prepare and present a formal grievance relating to a
promotion action.
Case No. 4-CA-50565
4. Under its merit promotion program Respondent posted a Vacancy
Announcement No. 24-85, with an opening date of November 13, 1984, for a
Safety and Occupational Health Specialist, GS-9 at Fort Bragg. Employee
Kenneth L. Daley applied for the position but was not selected. He was
neither rated in the field of best qualified nor was he referred for an
interview.
5. A grievance dated February 22, 1985 was filed by Daley and Union
representative Truman Bullard. Therein it was alleged that Daley was
not properly evaluated under the Crediting Plan and the Recruitment Plan
based on his application for the aforesaid position. Included within
the submission was a request by the Union for certain information from
Respondent in order to process the grievance. The data which the Union
requested in this submission involved the following:
(a) A copy of the Crediting Plan used by the panel to grade
applications under the Vacancy Announcement Number 24-85.
(b) Copies of the KSAO's submitted by all applicants referred
under Vacancy Announcement 24-85.
(c) A copy of any written instructions given to panel members
in Vacancy Announcement Number 24-85. /4/
6.(a) Union representative Bullard testified he wanted the Crediting
Plan, which the panel used to grade applications, to decide if Daley was
credited and rated properly. He stated that one could grieve, in merit
promotion actions, the method used to rate applicants to determine who
is best qualified.
(b) Bullard testified he sought the KSAO's of the applicants to check
whether they were rated properly under the Crediting Plan, and whether
Daley should receive additional points or the other applicant's points
should be lowered so as to put Daley in the highly qualified group.
(c) Further testimony by Bullard reflects that he wanted the written
instructions given to the panel members to see how they applied X118 of
the Handbook in respect to Daley's experience. Under X118 experience
outside civil service is deemed credible experience. Bullard stated he
wanted to note how the panel applied that provision to Daley's
experience as Safety Coordinator for the Union as well as his seven or
eight years working with the Local Safety Office of the agency.
7. By letter dated February 27, 1985 /5/ Respondent denied Daley's
grievance as being untimely filed. The request for information was
denied on the ground that it was not deemed relevant or necessary to
process the grievance. The letter also stated that Daley was not
referred as a Best Qualified candidate because his "application did not
adequately address the requirements of KSA #2 (physical security surveys
and inspection)." /6/
8. Union representative Bullard and Daley submitted the grievance in
Step 2 by letter dated March 27, 1985. At the same time a request was
made therein for the information initially requested so as to further
process the grievance.
9. In a letter dated April 8, 1985 Respondent repeated its refusal
to furnish the Crediting Plan, an unsanitized copy of the KSAO's of all
applicants, /7/ written instructions to panel members, and the names of
the members. Respondent further advised Daley that the supervisory
appraisal of KSAO had no impact on his score; that the experience,
training, awards, and appraisal are considered as a whole in d:ciding
the overall worth of the applicant's background.
10. As a result of a Step 2 grievance meeting held on April 16,
1985, Respondent offered to resolve Daley's grievance. In a letter
dated April 19 Respondent advised Daley and Bullard that a new merit
promotion panel would be convened to evaluate all candidates who applied
under Announcement 24-85. In the event that the new panel concludes
Daley should have been among the best qualified, Respondent proposed
affording him priority consideration for the next appropriate vacancy.
If the panel concludes otherwise, Daley would receive no further
entitlement under that Announcement.
11. In a reply letter dated April 29 Daley accepted the offer as to
the new panel, but he qualified his acceptance in other respects.
Further, Daley stated he would not relinquish his statutory right to
pursue the grievance.
12. By letter dated May 2 Respondent advised Daley and his
representative that since Daley changed his mind re the settlement, the
offer to convene a new panel was withdrawn, and the grievance at Step 2
was denied.
13. In a letter dated May 7 Daley disputed that he changed his mind
re the settlement of the grievance. In the same letter the Union
reiterated its request for the Crediting Plan, KSAO's and written
instructions to panel members. /8/
14. Under date of May 13 Daley and Bullard submitted the grievance
at Step 3. At the same time a request was made that Respondent provide
an unsanitized copy of the entire promotion package file as being
relevant to the grievance and necessary to prepare for possible
arbitration. Request was also made for the Crediting Plan.
15. Colonel William J. Richardson, Jr. replied on May 22 to the Step
3 grievance submitted by Daley and Bullard. He stated he supported the
earlier action taken by the grievance official and denied the grievance
at Step 3. Richardson also reiterated the agency's position re its
refusal to supply the information requested.
16. Daley's grievance was submitted to arbitration. A hearing date
has been deferred pending the conclusion of the present proceeding.
17. Record facts show that the promotion file, which was requested
on May 13 by Daley and Bullard, contains: (a) KSAOs, (b) instructions
to the Panel, (c) list of applicants who were disabled, (d) individual
rating sheet, (e) applications of each person under the merit promotion
plan, (f) roster showing names of all candidates.
18. The record reflects that Respondent refused to furnish this
promotion package as being not necessary or relevant since the decision
is based on what an applicant writes in the KSA's and comparing that to
the Crediting Plan. Further, management felt that if a grievant or
candidate has all candidate's applications he can "max" the particular
level or the Crediting Plan (4 point level), and through reconstruction
he could build a better application in his next submission.
Case No. 4-CA-60103
19. Respondent published Vacancy Announcement No. 285-85 with the
opening and closing dates of September 6 and September 16 respectively.
This was done under the Merit Promotion Program for the position of
Construction Inspector GS-7 at Fort Bragg, North Carolina.
20. James Brown, a bargaining unit employee and a disabled veteran,
filed an application for the said position. He was not, however,
referred for an interview. Brown spoke to Reinhard Witiak, Union
President, re the failure to refer him and sought the Union's
assistance. In order to determine whether a grievance should be filed
Witiak wrote Respondent on October 19, 1986 and requested: (a) copy of
the Crediting Plan utilized for this Vacancy Announcement, (b) copy of
the KSAO's of all applicants referred for interview, (c) copy of the
written instructions to panel members or summary of oral instructions,
(d) number of applicants interviewed who were disabled veterans. /9/
21. Witiak testified that he desired the requested information for
the following reasons:
(a) The Crediting Plan was sought to compare it with Brown's
application and see where he did reach proper points to be
referred. Also, it would reveal Brown was not evaluated properly
against the Crediting Plan.
(b) The KSAO's were wanted to compare the applications and
determine if there was any meaningful differences among them.
Still needed the Crediting Plan to make the comparison and rate
Brown against it.
(c) The written instructions to panel members were needed to
check if any instructions were given which caused a deviation from
the Plan - give a person credit for something that did not appear
in the Crediting Plan, or not pay attention to experience an
applicant said he obtained from a certain source.
(d) The information re disabled veterans was sought since Brown
believed he was not being credited properly for his disability
within the merit promotion system.
22. In a letter dated October 29, 1985 Respondent advised Witiak
that the Crediting Plan could not be provided because its release
provided an unfair advantage to an individual, and some candidates could
tailor their KSAO's to fit the highest level. This would make it
difficult for management to make valid distinctions among candidates.
Management refused to furnish KSAO's of other candidates, as well as
written instructions to panel members, since it did not appear they were
relevant or necessary to process Brown's complaint. As to information
re other disabled veterans, the letter stated that veterans preference
is not considered in promotion procedures, and the data requested in
this regard was not furnished.
23. In filling a competitive service position under the merit
promotion system, Respondent must initially perform a job analysis. By
so doing it can be determined which KSA's are needed to undertake the
requisite duties for the position and to differentiate a superior
candidate from an average one. This is necessary to select the best
qualified candidate. In conducting a job analysis, Management looks at
the job description, qualifications, standards and organizational chart.
It checks to see if there is a Crediting Plan developed previously
which mentions KSA's that appear necessary. All this data is given to
an expert who conducts an on site job analysis. KSA's are added or
deleted, and those selected are used to develop a Crediting Plan as well
as put on job announcements to candidates. A panel of subject matter
experts do the rating and ranking, which is the evaluation process that
rates the candidate against the Crediting Plan. /10/
24. A Crediting Plan /11/ is a rating guide or plan developed to
rate candidates for promotion against their KSAO's. It has four point
levels (1, 2, 3, 4) of ability applicable to each knowledge, skill and
ability which are specified as requisite for the particular position.
The Crediting Plan contains examples at each level of ability as to what
tasks and actions the position holder would be expected to undertake.
It may be modified for each vacancy announcement beforehand, but the
Crediting Plan is not changed after the Announcement is issued.
Conclusions
It is contended by General Counsel that the data requested in Case
No. 4-CA-50565 is relevant and necessary to continue processing the
grievance of Kenneth Daley based on his non-referral for the position of
Safety and Health Occupational Health Specialist, GS-9, (Vacancy
Announcement 24-85). The information sought, and refused by Respondent,
in said case consisted of: (a) an unsanitized copy of the crediting
plan in connection with that Announcement, (b) a copy of the KSAO's of
all applicants referred for interview pursuant hereto, (c) a copy of the
attendant written instructions given to the rating panel members, (d)
the entire promotion package file for that Vacancy Announcement.
In respect to Case No. 4-CA-60103, information sought was deemed
relevant and necessary by the Union in its determination whether to file
a grievance on behalf of James Brown for not being placed on a best
qualified list in connection with Vacancy Announcement No. 285-85 --
Construction Inspector, GS-7 position. The data sought, and refused by
Respondent, in this instance, consisted of: (a) an unsanitized copy of
the Crediting Plan in connection with that Announcement, (b) a copy of
the KSAO's of all applicants referred for interview pursuant thereto,
(c) a copy of the written instructions given to the rating panel
members, (d) a listing of all applicants in connection with that
Announcement who are disabled veterans.
Respondent contends it has no duty to furnish the requested data in
both cases herein. It bases this contention on two premises: (1)
disclosure of the crediting plan and related data is prohibited by law,
(2) the data sought by the Union is not relevant nor necessary for full
and proper discussion of the grievances or issues involving Daley or
Brown.
As part of an agency's obligation to bargain with a union in good
faith it is required, under certain conditions, to furnish requested
data to the bargaining representative. This duty is expressed in
Section 7114(b) of the Statute which provides as follows:
Representation rights and duties
* * *
(b) The duty of an agency and an exclusive representative to
negotiate in good faith under subsection (a) of this section shall
include the obligation --
* * *
(4) in the case of an agency, to furnish to the exclusive
representative involved, or its authorized representative, upon
request and, to the extent not prohibited by law, data --
(A) which is normally maintained by the agency in the regular
course of business;
(B) which is reasonably available and necessary for full and
proper discussion, understanding, and negotiation of subjects
within the scope of collective bargaining; and
(C) which does not constitute guidance, advice, council, or
training provided for management officials or supervisors,
relating to collective bargaining . . . (Emphasis supplied)
In affirming that the data must be necessary to enable a union to
fulfill its representational functions, the Authority has held that this
would include the effective evaluation and processing of grievances.
U.S. Customs Service, Region VII, Los Angeles, California, 10 FLRA No.
47; Veterans Administration Regional Office, Denver, Colorado, 7 FLRA
No. 100. However, a mere assertion that the information is needed to
process a grievance does not automatically oblige the agency to furnish
it. The duty to supply the data rest on the circumstances of each case.
U.S. Equal Employment Opportunity Commission, Washington, D.C., 20 FLRA
No. 37. See Department of the Treasury, United States Customs Service,
Region IV, Miami, Florida, 18 FLRA No. 53.
Turning to the cases at bar, I am satisfied that the Crediting Plan,
as well as the KSAO's and other material requested, are necessary and
relevant to the proper representation by the Union of both Daley and
Brown. It would be difficult, if not impossible, for the Union to
ascertain whether the employees were rated properly without examining
that Plan and comparing the KSAO's of the other applicant. The
bargaining representative cannot tell, in respect to either employee,
whether rankings followed the Crediting Plan and whether the process was
correctly pursued unless it has the KSAO's of the applicants. /12/ Note
is taken that in the Fort Bragg Recruitment Plan it is provided that the
agency agreed to retain a Promotion Checklist (covering such items as
evaluation of candidates, test scores, evaluation methods), and that an
employee or his representative may have access to such Checklist when it
is needed to prepare a grievance. Further, the Authority has recognized
that a Union needs certain data contained in a promotion package in
connection with an employee's grievance over his non-selection for a
position. This included evaluation and rating forms for applicants on
the qualified, highly qualified and best qualified lists. See Bureau of
Alcohol, Tobacco and Firearms National Office, Washington, D.C., supra.
/13/ To the same effect see U.S. Customs Service, Region VII, Los
Angeles, California, 10 FLRA No. 47, where the Authority determined that
documents used in the promotion process by the ranking panel must be
furnished the union who filed a grievance alleging an employee was
improperly denied a promotion.
In sum, I conclude that the data requested by the Union on behalf of
Daley and Brown in the cases at bar is necessary and relevant to the
processing of a grievance in one instance, or in making a decision
whether to file one in the other. To make proper comparisons and pass
judgment on the correctness of the selection process the Union must have
data which was utilized by the agency's raters. Otherwise, it can
scarcely be concluded that the bargaining representative is in a
position to fulfill its role properly. /14/
Respondent insists it has no obligation to supply the requested data
in the instant cases since 1716(b)(4) allows for disclosure only when
the same does not conflict with other laws. The agency contends that
several "laws" forbid such disclosure herein, i.e., the Freedom of
Information Act, Sections 552(b)(2) and (5); FPM Supplement 335-1 and
FPM Letter 335-15; and 5 U.S.C. 2301 et. seq.
The Freedom of Information Act /15/ (FOIA) was designed to embody "a
general philosophy of full agency disclosure unless information is
exempted under clearly delineated statutory language, and to provide a
court procedure by which citizens and the press may obtain information
wrongfully withheld." See Crooker v. Bureau of Alcohol, Tobacco and
Firearms, 670 F.2d 1051 (1981). There are nine exemptions to disclosure
under Section 552 of FOIA. Two of these are relied upon by Respondent
in asserting that FOIA prohibits the furnishing of the crediting plan as
well as the other data requested in Case No. 4-CA-50565 and 4-CA-60103.
Respondent refers to exemptions (b)(2) and (5) under 5 U.S.C. 552.
Exemption (b)(2) covers materials "related solely to the internal
personnel rules and practices of an agency." Exemption (b)(5) covers
"inter-agency or intra-agency memorandums or letters which would not be
available by law to a party other than an agency in litigation with the
agency."
As support for its contention that the FOIA prohibits disclosing the
data involved in the cases at bar. Respondent cites National Treasury
Employees Union v. United States Customs Service, 602 F. Supp. 469
(D.D.C. 1984). It was determined therein that Exemption (b)(2), which
exempted internal personnel rules and practices of an agency, also
included crediting plans that were internal evaluation procedures.
Thus, a withholding by the agency of such documents used in a merit
promotion program was proper under said exemption, and the union was not
entitled to obtain them under the FOIA.
The undersigned, however, is not persuaded that either the statutory
language or the cited case forbids the release of the crediting plan and
the relevant data involved in the cases at bar. An "exemption" from
disclosure, as set forth in 5 U.S.C. 552(b)(2) and (5) of the FOIA, is
not tantamount to "prohibition" from disclosure. As indicated in the
U.S. Customs Service case, supra, the pertinent sections of FOIA exempts
the material from mandatory disclosure. It does not prohibit the
release of the crediting plan. Note is also taken of the Authority's
views as expressed in U.S. Equal Employment Opportunity Commission,
Washington, D.C., supra. In referring to the fact that information
sought under 7114(b)(4) was similar to data sought under provisions of
FOIA, the Authority stated:
" . . . disclosure of individually identifiable records is not
prohibited in all circumstances. The information is often
disclosed to the public under the provisions of the FOIA, in a
sanitized or non-sanitized form, after the agency or the court
makes a determination that such disclosure would not result in a
clearly unwarranted version of the individual's privacy . . . "
/16/
The foregoing convinces me that the FOIA does not mandate that
information such as the crediting plan not be released, and that
furnishing of same would not be violative of the Statute. It is
seemingly permissive as to such release, dependent upon the agency's
determination regarding the propriety of doing so. I do not construe
552(b)(2) and (5) of the FOIA as prohibiting the furnishing of the data
requested herein. Thus, in this respect, Respondent has not shown that,
under 7114(b)(4), it was prohibited by law from doing so.
It is also contended by Respondent that FPM Supplement 335-1, along
with FPM Letter 335-15, is a "law" which prohibits disclosure of the
data requested in the instant cases. Thus, under 7114(b)(4) of the
Statute, no obligation is imposed to furnish the crediting plan and
other requested information to the Union.
In making the foregoing argument, Respondent adverts to the fact that
Section 7117 of the Statute makes the duty to bargain limited by Federal
law or any government-wide rules or regulations. Thus, it is urged, the
term "law" in 7114(b)(4) must be interpreted so as to equate it with
such rules or regulations. While I agree that FPM Supplement 335-1 is a
government-wide rule or regulation, /17/ the contention that it is also
a "law" is not persuasive. Rules and regulations are devised to
implement laws and are not themselves statutory enactments. While
legislative rules often have the force and effect of law as an extension
of the legislative process, /18/ there is no showing such was intended
in respect to the Federal Personnel Manual. Further, a distinction
could be made, in any event, between a regulation which has the "effect"
of law and the law itself. Moreover, limitation of a duty to bargain
under 7117 of the Statute by Federal law or government-wide rules or
regulations does not call for a conclusion that the terms are
synonymous. In truth, the fact that both are mentioned would serve to
highlight the difference between "law" and "regulation". Considerable
support for this conclusion may be found in the dictum set forth in
Mobil Oil Corp. v. F.T.C., 406 F. Supp. 305, 310, where the District
Court, S.D.N.Y. stated " . . . neither regulations nor guidelines
promulgated by a federal agency, can override the language and purpose
of a statutory enactment." While the agency may not be obliged to
bargain re union proposals involving FPM 335, /19/ I do not believe
that, a fortiorari, it is relieved from its obligation imposed under
7114(b) of the Statute to furnish data to the Union involving merit
promotions. A union may have need of such information for other
reasons, such as filing grievances re the methods or procedures followed
in making promotions, and nevertheless not be entitled to bargain over
proposals concerning crediting plans and the like. Accordingly, I
conclude that FPM Supplement 335-1 does not constitute a law which
prohibits Respondent from furnishing the crediting plan and related data
to the Union herein. /20/
Further, the Authority has already held that the release of crediting
plans was not inconsistent with FPM Supplement 335-1, subchapter 6 in
National Treasury Employees Union and NTEU Chapters 153, 161 and 183 and
U.S. Customs Service, Region II, 11 FLRA No. 47. It concluded that the
said regulation does not bar the release of the crediting plan. It did
not appear that a disclosure thereof would create any unfair advantage
to some candidates or compromise the selection process. To the same
extent in the cases at bar, a disclosure to all applicants for the
Vacancy Announcement No. 24-85 in Case No. 4-CA-50565, as well as all
applicants for the Vacancy Announcement No. 285-85 in Case No.
4-CA-60103, would create no unfair advantage to any candidate. The
respective vacancy positions involve merit promotions re unit employees
so that no problem is presented concerning non-bargaining unit
employees. While Respondent insists applications could be tailored, or
falsified, to fit the requirements set forth in the Crediting Plan, it
does not appear that such falsifications were customary or presented any
difficulty in the past. /21/ There was no evidence, moreover, that the
Union had disseminated the information so as to prejudice the selection
process. In addition, unit employees -- who may be Union members -- sit
on the rating panel and they have access to the Crediting Plan.
Based on the foregoing, I conclude that the data requested in both
cases, as more specifically set forth below, was necessary and relevant
to the processing of greivances on behalf of Daley in Case No.
4-CA-50565 and Brown in Case No. 4-CA-60103; that the data was not
prohibited by law; and that to furnish the data requested would not be
inconsistent with, or run counter to, FPM Supplement 335-1.
Accordingly, I also conclude Respondent was obliged, under 7114(b)(4)
of the Statute, to have furnished the Union herein the following:
(1) In respect to Vacancy Announcement No. 24-85:
(a) a copy of the Crediting Plan used by the panel to grade
applications thereunder;
(b) copies of the KSAO's submitted by all applicants referred
thereunder;
(c) a copy of written instructions given to the rating panel
member.
(d) the entire promotion package file for such Vacancy
Announcement.
(2) In respect to Vacancy Announcement No. 285-85:
(a) a copy of the Crediting Plan used by the panel to grade
applications thereunder;
(b) copies of the KSAO's submitted by all applicants referred
thereunder;
(c) a copy of the written instructions given to the rating
panel;
(d) a listing of all applicants who are disabled veterans.
Having failed to abide by the Union's requests in Case Nos.
4-CA-50565 and 4-CA-60103, I conclude that Respondent violated Sections
7116(a)(1), (5) and (8) of the Statute. Accordingly, it is recommended
that the Authority issue the following:
ORDER
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Statute, the
Authority hereby orders that Department of the Army, Headquarters XVIII
Airborne Corps and Fort Bragg, North Carolina shall:
1. Cease and desist from:
(a) Failing and refusing to furnish, upon request by American
Federation of Government, Local 1770, AFL-CIO, the exclusive
representative of its employees, a copy of all necessary and
relevant documents and materials requested by such representative
in connection with the processing of a grievance filed by unit
employee, Kenneth Daley, regarding the selection process for the
position of Safety and Occupational Health Specialist, GS-018-09,
and in connection with the filing of a potential grievance on
behalf of unit employee James Brown regarding the selection
process for the position of Construction Inspector, GS-809-07.
(b) In any like or related manner interfering with, restraining
or coercing its employees in the exercise of their rights assured
by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action:
(a) Upon request, furnish to the American Federation of
Government Employees, Local 1770, AFL-CIO, the employees'
exclusive representative, a copy of all necessary and relevant
documents and materials requested by such representative in
connection with the processing of a grievance filed by unit
employee, Kenneth Daley, regarding the selection process for the
position of Safety and Occupational Health Specialist, GS-018-09,
and in connection with the filing of a potential grievance on
behalf of unit employee James Brown regarding the selection
process for the position of Construction Inspector, GS-809-07.
(b) Post at its facilities at Fort Bragg, North Carolina,
copies of the attached Notice on forms to be furnished by the
Federal Labor Relations Authority. Upon receipt of such forms,
they shall be signed by the duly authorized designee, and shall be
posted and maintained by him for 60 consecutive days thereafter,
in conspicuous places, including all bulletin boards and other
places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that such notices are
not altered, defaced or covered by any other material.
(c) Notify the Regional Director, Region IV, 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.
/s/ WILLIAM NAIMARK
Administrative Law Judge
Dated: August 12, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(*) In National Treasury Employees Union v. U.S. Customs Service, 802
F.2d 525 (D.C. Cir. 1986), the Court of Appeals held that an agency's
crediting plans were exempt from disclosure under 5 U.S.C. Section
552(b)(2) because release of the plans created a significant risk that
the agency's evaluation program would be seriously compromised. That
case, however, does not equate to a holding that release of crediting
plans is prohibited by law.
(1) Subsequent to the hearing General Counsel filed a Motion to
Correct the Transcript. No objections having been filed thereto, and it
appearing that the proposed corrections are proper, the Motion is
granted as requested.
(2) G.C. Exhibit No. 3 - hereinafter called the Recruitment Plan.
(3) This checklist in the Recruitment Plan lists 13 items for the
promotion record of the employee. It covers such matters as (1)
qualification standard, (2) evaluation methods to obtain ratings, (3)
evaluation of candidates (including supervisory appraisals, test
scores), (4) names of applicants and candidates, (5) record of
consideration of employees entitled to special consideration for
repromotion, (6) whether promotion was under competitive procedures and
that the employee met the standards and other requirements.
(4) While other information was requested by the Union, the alleged
violation in this case only concerns Respondent's refusal to furnish
these three items as well as a promotion package subsequently requested.
(5) The Step 1 grievance was again denied on March 21, 1985 after
Daley resubmitted his grievance on March 4, 1985.
(6) Unless otherwise inidcated, all dates hereinafter mentioned occur
in 1985.
(7) It did furnish a copy of the conversion table used to correct the
total run score, as well as a sanitized copy of the selectee's KSAO's.
(8) This request was again denied in a May 14 letter to Daley and
Bullard from management on the same grounds as stated previously.
(9) The Union requested other data but the alleged violation in this
case only concerns the refusal to furnish these four items.
(10) There are usually 1-3 members of the rating panel who are unit
employees and sit on the panels as subject matter experts.
(11) While unwilling to produce the Crediting Plans involved in Cases
4-CA-50565 and 4-CA-60103 as requested by the Union herein, the
Respondent did submit them to the undersigned for in camera inspection.
They have been examined and a general description presented by the
undersigned in setting forth the facts in the instant matters. The said
Crediting Plans are being forwarded under separate cover to the
Authority for its use in connection with the decision to be rendered.
(12) As stated by General Counsel, the KSAO of the selectee - which
was supplied in Case No. 4-CA-50565 - does not suffice since the Union
cannot grieve the selection itself but must grieve the process used by
the agency in certifying candidates.
(13) Certain items as names of unsuccessful applicants, personal
identifiers, foreign language skills, and salary history, were not shown
to be necessary to process that grievance.
(14) With respect to the instructions issued to the rating panel,
which was requested in both cases by the Union, it is noted that the
panel members were unit employees. Thus, I would not conclude that such
instructions -- which may well bear on the rating process and use of the
Crediting Plan -- constitute guidance, advice, council, or training for
management officials under 7114(b)(4)(C) of the Statute.
(15) Pub. L. No. 89-487, 80 Stat. 236 (copied as amended at 5 U.S.C.
552 (1982)).
(16) In the citing case Respondent contended that the Privacy Act
prohibited its furnishing performance appraisals and other related data.
The quoted statement is in regard thereto.
(17) In National Treasury Employees Union and Department of the
Treasury, U.S. Customs Service, Washington, D.C., 11 FLRA No. 52, the
Authority concluded that FPM 355, 1-4, regarding merit promotion
requirements is a government-wide rule or regulation.
(18) Chrysler Corp. v. Brown, 441 U.S. 281, 304 (1979);
Administrative Law and Practice, Charles H. Koch, Jr. pages 170, 171
(1985).
(19) The Authority so held in the negotiability decision, NTEU and
Department of the Treasury, U.S. Customs, Washington, D.C., supra.
(20) Assuming arguendo that FPM Supplement 335-1 constitutes a law, I
would not conclude that Respondent is exculpated from its duty under
7114(b)(4) to furnish the data herein. Under 7114(b)(4) an agency may
escape that duty when prohibited by law from supplying the requested
information. But a reading of the foregoing regulation makes it
apparent that it rests with the agency to determine whether such
material should be released. There is no absolute prohibition re the
release of examination materials by the agency. See subchapter S6(c).
(21) There was some testimony that employee applications could not be
verified by Respondent. However, no probative evidence to substantiate
this conclusion was introduced at the hearing. Further, I am not
convinced that verification by management of employment background or
experience could not be accomplished in respect to vital concerns.
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to furnish, upon request by the American
Federation of Government Employees, Local 1770, AFL-CIO, the exclusive
representative of its employees, a copy of all necessary and relevant
documents and materials requested by such representative in connection
with the processing of a grievance filed by unit employee, Kenneth
Daley, regarding the selection process for the position of Safety and
Occupational Health Specialist, GS-018-09, and in connection with the
filing of a potential grievance on behalf of unit employee James Brown
regarding the selection process for the position of Construction
Inspector, GS-809-07.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, upon request, furnish to American Federation of Government
Employees, Local 1770, AFL-CIO, the employees' exclusive representative,
a copy of all necessary and relevant documents and materials requested
by such representative in connection with the processing of a grievance
filed by unit employee, Kenneth Daley, regarding the selection process
for the position of Safety and Occupational Health Specialist,
GS-018-09, and in connection with the filing of a potential grievance on
behalf of unit employee James Brown regarding the selection process for
the position of Construction Inspector, GS-809-07.
. . . (Agency or Activity)
Dated: . . . By: . . . (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region IV,
whose address is: 1371 Peachtree Street, NE., Suite 736, Atlanta, GA
30387, and whose telephone number is: (404) 348-2324.