[ v26 p630 ]
26:0630(79)CA
The decision of the Authority follows:
26 FLRA No. 79
UNITED STATES DEPARTMENT OF
AGRICULTURE, ANIMAL AND PLANT
HEALTH INSPECTION SERVICE
PLANT PROTECTION AND QUARANTINE
Respondent
and
NATIONAL ASSOCIATION OF AGRICULTURE
EMPLOYEES, BRANCH #15
Charging Party
Case No. 6-CA-50121
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
filed by the Respondent to the attached Decision of the Administrative
Law Judge. The Charging Party (the Union) filed an opposition to the
exceptions. /1/ The issue is whether the Respondent violated section
7116(a)(1), (5) and (8) of the Federal Service Labor-Management
Relations Statute (the Statute), by refusing to furnish the Union,
pursuant to section 7114(b)(4), the "rating scheme" utilized by a
Promotion Review Panel. In agreement with the Judge, we find that the
Respondent did commit an unfair labor practice as alleged.
II. Facts
The Union is the exclusive representative of a nationwide unit of the
Respondent's employees, including Plant Protection and Quarantine
Officers. The Respondent and the Union are parties to a collective
bargaining agreement. Article XII of the agreement, entitled
Promotions, provides at Section 1 that the Respondent must consult with
the Union on the establishment and any revision of the criteria used in
the selection or promotion process. Additionally, under Article XII,
Section 2, the Union has the right to have a participating
representative at Promotion Review Panel meetings which are held to
identify and rank highly qualified candidates for promotion to
supervisory or specialist positions GS-12 and below for which members of
the bargaining unit are eligible and more than ten applicants are being
considered.
On September 18, 1984, a Union member participated in a Promotion
Review Panel which ranked applicants for a GS-11 Supervisory Plant
Protection and Quarantine Officer (crew leader) position. On September
19, 1984, the Panel submitted its list of best qualified applicants to
the selecting official. The vacant position was subsequently filled
without using the Panel's best qualified list by reassigning a
supervisor into the position. Thereafter, the Union notified the
Respondent of its concern that the Promotion Panel may have failed to
fulfill the requirements of Article XII, Sections 1 and 2 of the
parties' agreement; informed the Respondent that the Union was
considering filing a grievance; and requested a copy of all materials
used by the Panel, including the "rating scheme" for the position. The
Respondent requested more specific information from the Union.
The Union filed a grievance alleging that the Respondent had
unilaterally structured the rating scheme in such a way as to
effectively change the evaluation criteria established for the position
as set forth in the vacancy announcement. The Respondent informed the
Union that its request for all materials used by the Panel was not
reasonable and, specifically, contending that "(T)he release of the
rating scheme (crediting plan) is considered confidential material and
not releasable." However, the Respondent did offer to give the Union
access to the information, for review but not for duplication, during
the Union representative's next participation in a Promotion Review
Panel proceeding.
III. Administrative Law Judge's Decision
The Judge concluded that the Respondent violated section 7116(a)(1),
(5) and (8) of the Statute by failing to furnish the Union with the
rating scheme in connection with the processing of its grievance. In
reaching that conclusion, the Judge found that the rating scheme was
necessary to the Union in determining, for the purpose of the grievance,
whether there were differences between the rating scheme and the
evaluation criteria set forth in the vacancy announcement that would
establish whether there was a violation of the collective bargaining
agreement. The Judge also found that since the Respondent had not shown
that disclosure of the rating scheme would create an unfair advantage
for any candidate or compromise the selection process, Federal Personnel
Manual (FPM) Supplement 335-1, subchapter S6 did not prohibit release of
the rating scheme to the Union. The Judge noted that the Union was not
seeking to negotiate over the rating plan, but merely sought a copy of
the plan for comparison purposes. Additionally, he found that the offer
to see the rating scheme at some future Promotion Panel meeting did not
satisfy the section 7114(b)(4) obligation. He also found that the
matter was not rendered moot by the fact that the position was filled by
reassignment since the Union's grievance concerns the manner in which
the Respondent constructed its vacancy announcements and not the filling
of the vacancy.
IV. Positions of the Parties
The Respondent disagrees with the Judge's conclusion that there was
no showing that the disclosure of the rating plan would create any
unfair advantage. The Respondent maintains that the testimony was
sufficient to show that the release of such information would create an
unfair advantage and undermine the usefulness of the evaluation
procedure. The Respondent argues that since FPM Supplement 335-1,
subchapter S6, a Government-wide regulation, precludes release of
information is such information were to provide an unfair advantage, the
information sought was not subject to section 7114(b)(4). Additionally,
the Respondent argues for the first time in its exceptions that as the
information sought pertains to a supervisory position excluded from the
bargaining unit, the information is not subject to section 7114(b)(4).
In its other exceptions, the Respondent merely repeats arguements which
were raised and addressed in the proceeding before the Judge pertaining
to the negotiability of the rating scheme criteria, the Union's
entitlement and need for such information, and the fact that the
information was offered for review at a future meeting.
In its opposition to Respondent's exceptions, the Union fully
supports the rationale and decision of the Judge. Further, the Union
urges the Authority to reject the Respondent's speculation that job
opportunities would have to be adjusted significantly as a result of
disclosure and that Union members applying for future vacancies will be
compelled to lie or be less than candid with the Respondent about their
qualifications.
V. Analysis
The issue is whether the Respondent was required under section
7114(b)(4) of the Statute to furnish the Union with a copy of the rating
scheme utilized by the Promotion Panel where the information was
requested in order to determine whether to file a grievance under the
parties' negotiated agreement.
A. The Rating Scheme Is Necessary for the Union To Fulfill
Its Representational Functions
It is well established that an agency is obligated, upon request, to
furnish the exclusive representative of its employees with information
that is necessary for the union to effectively carry out is
representational obligations, which includes the processing of employee
grievances. U.S. Customs Service, Region VII, Los Angeles, California,
10 FLRA 251 (1982); Social Security Administration, 15 FLRA 969 (1984);
Bureau of Alcohol, Tobacco and Firearms, National Office, Washington,
D.C., 18 FLRA 611 (1985); Internal Revenue Service, National Office, 21
FLRA No. 82 (1986).
The grievance in this case alleged that management structured the
rating scheme for the position involved in such a way as to unilaterally
change the evaluation criteria in the vacancy announcement in violation
of Article XII, section 1 of the parties' agreement. Article XII,
Section 1 provides that as a matter of policy "(t)he Employer shall
consult with the Union on the establishment and revision of the criteria
used in the selection and promotion process." The Union basically argues
that the evaluation criteria for the position as set forth in the
vacancy announcement do not match the rating scheme. Without access to
the requested rating scheme, the Union is not able to prove that the
Respondent has deviated from its publicly announced evaluation criteria
for filling the vacant position.
In our view, the rating scheme is at the very heart of the Union's
grievance and is necessary to the processing of the grievance. The
furnishing of the rating scheme as to this particular position for the
limited purpose of processing the grievance will afford the Union the
opportunity to monitor and enforce its negotiated contractual right
under Article XXI, section 1 of the agreement and will encourage the use
of non-disruptive grievance procedures for that purpose.
B. Release of the Rating Scheme to the Union Is Not
Prohibited by Law
We find that the Respondent has not established that disclosure of
the information requested by the Union is "prohibited by law" within the
meaning of section 7114(b)(4) of the Statute.
The Respondent argues that release of the rating scheme sought by the
Union is precluded by FPM Supplement 335-1, subchapter 6. However, in
Department of the Army, Headquarters, XVIII Airborne Corps and Fort
Bragg, Fort Bragg, North Carolina, 26 FLRA No. 52 (1987), we recently
decided than even if FPM Supplement 335-1 is a "law" within the meaning
of section 7114 (b)(4), it does not prohibit release of crediting plans
in all circumstances. Citing our decision in National Treasury
Employees Union and Department of the Treasury, U.S. Customs Service, 23
FLRA No. 91 (1986), we reiterated the finding that under FPM Supplement
335-1, 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. Therefore, the determination as to
whether release of the information would create an unfair advantage or
compromise the utility of a selection process depends on the particular
circumstances present and consequently, should be made on a case-by-case
basis. Headquarters, XVIII Airborne Corps and Fort Bragg, slip op. at
7.
In the consolidated unfair labor practice cases under consideration
in Headquarters, XVIII Airborne Corps and Fort Bragg, we found that:
(D)isclosure 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 the 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.
Slip op. at 7-8.
In this case, the Union requested a copy of the rating scheme for the
purpose of processing a grievance concerning the filling of a particular
position. The information was sought to enable the Union to determine
whether the Respondent had structured the rating scheme in such a way as
to unilaterally change the criteria for the position as set forth in the
vacancy announcement in violation of the parties' collective bargaining
agreement. The Union's request does not require blanket disclosure of
the Respondent's crediting plans. Rather, disclosure of the rating
scheme pertains to only one selection and would enable the Union to
fulfill its representational responsibilities.
Moreoever, in agreement with the Judge, we find that in the
particular circumstances of this case, disclosure of the rating scheme
will not create any unfair advantage to prospective candidates for the
particular position involved, since the disputed selection action has
been completed, and that disclosure will not compromise the Respondent's
selection process. We find that where, as here, the requested
information is necessary to the processing of a grievance, a bare
assertion that an unfair advantage or compromise of selection procedures
will result from release of the information, based on nothing more than
speculation that the information will be used improperly by the Union
for other purposes, does not establish that release of the information
would be contrary to FPM Supplement 335-1. We note that the Union has
had representatives present at Promotion Review Panel proceedings in the
past pursuant to the parties' agreement and those representatives have
had access to rating schemes. There is no showing that the Union has
disseminated the information contrary to the restrictions of FPM
Supplement 335-1.
Accordingly, we conclude that release of the rating scheme to the
Union is not contrary to law and is not inconsistent with FPM Supplement
335-1.
C. Respondent's Other Arguments
In agreement with the Judge and based on his rationale, we find that
the Respondent's other arguments presented to the Judge and subsequently
reiterated in the Respondent's exceptions are without merit. In that
regard, we agree with the Judge that the Respondent's offer to allow the
Union to look at the rating scheme at some future Promotion Panel
meeting does not satisfy the Respondent's obligation under section
7114(b)(4) of the Statute. Section 7114)b)(4) prescribes the duty of an
agency to furnish information to an exclusive representative of its
employees and merely allowing a union to look at information the union
is entitled to for representational purposes does not discharge the
agency's duty. Further, we will not consider the RespondentS contention
pertaining to the nature of the position involved in the selection
action since that contention was raised for the first time in its
exceptions. In accordance with section 2429.5 of the Authority's Rules
and Regulations, "(t)he Authority will not consider evidence offered by
a party, or any issue, which was not presented in the proceeding before
. . . the Administrative Law Judge."
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 the
Judge made at the hearing, find that no prejudicial error was committed,
and affirm those rulings. We have considered the Judge's Decision, the
submissions of the parties, and the entire record, and adopt the Judge's
findings and conclusions as discussed above. We conclude that the
Respondent violated section 7116(a)(1), (5) and (8) of the Statute by
refusing to furnish the Union with a copy of the rating scheme used by
the Respondent's Promotion Review Panel on September 18 and 19, 1984, as
required by section 7114(b)(4). In ordering the Respondent to provide
the Union with the requested information, we do so with the expectation
that the Union will use the data solely for the fulfillment of its
representational functions in connection with the grievance involved in
this case.
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Statute, the
U.S. Department of Agriculture, Animal and Plant Health Inspection
Service, Plant Protection and Quarantine shall:
1. Cease and desist from:
(a) Failing and refusing to furnish the National Association of
Agriculture Employees, the employees' exclusive representative, a copy
of the rating scheme for a Supervisory Plant Protection and Quarantine
Officer (crew leader) position used by the Promotion Review Panel on
September 18 and 19, 1984.
(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 in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Furnish the National Association of Agriculture Employees, the
exclusive representative of its employees, a copy of the rating scheme
for a Supervisory Plant Protection and Quarantine Officer (crew leader)
position used by the Promotion Review Panel on September 18 and 19,
1984.
(b) Post at all facilities within the South Central Region copies of
the attached Notice on forms to be furnished by the Federal Labor
Relations Authority. Upon receipt of such forms they shall be signed by
a senior official of the U.S. Department of Agriculture and shall be
posted and maintained for 60 consecutive days thereafter, in conspicuous
places, including bulletin boards and other places where notices to
employees are customarily posted. Reasonable steps shall be taken to
ensure that such Notices are not altered, defaced, or covered by any
other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director Region IV, Federal Labor
Relations Authority, in writing, within 30 days of the date of this
Order, as to what steps have been taken to comply with the Order.
Issued, Washington, D.C., April 22, 1987.
/s/ Jerry L. Calhoun
Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III
Henry B. Frazier III, Member
/s/ Jean McKee
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND 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 and refuse to furnish the National Association of
Agriculture Employees, the exclusive representative of a unit of our
employees, a copy of the rating scheme for Supervisory Plant Protection
and Quarantine Officer (crew leader) used by the Promotion Review Panel
on September 18 and 19, 1984.
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 furnish the National Association of Agriculture Employees a
copy of the rating scheme for Supervisory Plant Protection and
Quarantine Officer (crew leader) used by the Promotion Review Panel on
September 18 and 19, 1984.
(Activity) . . .
Dated: . . .
By: (Signature) (Title) . . .
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 VI, whose address is: Federal Office
Building, 525 Griffin Street, Suite 926, Dallas, Texas 75202 and whose
telephone number is: (214) 767-4996.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 6-CA-50121
UNITED STATES DEPARTMENT OF AGRICULTURE,
ANIMAL AND PLANT HEALTH INSPECTION SERVICE,
PLANT PROTECTION AND QUARANTINE
Respondent
and
NATIONAL ASSOCIATION OF AGRICULTURE
EMPLOYEES, BRANCH #15
Charging Party
Susan E. Jelen, Esquire
For the General Counsel
Stanley E. Kensky
Cutberto Castro
For the Respondent
Judy Jenkin
For the Charging Party
Before: BURTON S. STERNBURG
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
section 7101 et seq. and the Rules and Regulations issued thereunder.
Pursuant to an amended charge first filed on November 16, 1984, by
the National Association of Agriculture Employees, Branch #15, a
Complaint and Notice of Hearing was issued on February 25, 1985, by the
Regional Director for Region VI, Federal Labor Relations Authority,
Dallas, Texas. The Complaint, as amended at the hearing alleges that
the United States Department of Agriculture, Animal and Plant Health
Inspection Service, Plant Protection and Quarantine (hereinafter called
the Respondent or Department of Agriculture), violated Sections
7116(a)(1), (5) and (8) of the Federal Service Labor-Management
Relations Statute (hereinafter called the Statute), by virtue of its
actions in refusing to furnish the "rating scheme" /2/ utilized by a
Promotion Review Panel on September 18 and 19, 1984, to the National
Association of Agriculture Employees, the exclusive representative of
Respondent's Plant Protection and Quarantine Officers (hereinafter
called the Union.) /3/
A hearing was held in the captioned matter on March 26, 1985, in El
Paso, Texas. All parties were afforded the full opportunity to be heard
to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues involved herein. The General Counsel and the
Respondent submitted post-hearing briefs on May 28, 1985, which have
been duly considered.
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings of fact,
conclusions and recommendations.
Findings of Fact
The Union is the duly recognized exclusive representative of a
nationwide unit of Respondent's employees, including, among others,
Plant Protection and Quarantine Officers. The Respondent and the Union
are parties to a collective bargaining agreement which provides in
Article XII, Sections 1 and 2 as follows:
ARTICLE XII PROMOTIONS
Section 1. Policy
Promotion of employees in the representation unit shall be made
in accordance with applicable rules and regulations of the U.S.
Department of Agriculture, Animal and Plant Health Inspection
Service and Plant Protection and Quarantine. The Employer shall
consult the Union on the establishment and revisions of the
criteria used in the selection and promotion process.
Section 2. Promotion Review Panel Meetings
The Union shall have a representative present at those meetings
of the Program's Promotion Review Panel which are held to identify
and rank highly qualified candidates for promotion to supervisory
or specialist positions GS-12 and below for which members of the
bargaining unit are eligible and more than ten (10) applicants are
being considered. The Union representative shall be authorized
official time and travel and be a participating member selected by
the Deputy Administrator or his/her designee from a list of
employees (minimum of 5) recommended by the Union President.
Employees on the list will be within a 500 mile radius of the
Promotion File Office. The discussion and proceedings of the
committee meetings shall be considered confidential.
Ms. Judy Jenkin, a bargaining unit employee, worked as a Plant
Protection and Quarantine Officer at El Paso, Texas, for four and one
half years. Ms. Jenkin transferred to the Respondent's Baltimore,
Maryland office in March of 1985. While working in El Paso, Texas, Ms.
Jenkin served as vice-president for the Union's Branch #15 which was
responsible for servicing the El Paso, Texas area. From June through
November of 1984, Ms. Jenkin received a temporary appointment to the
position of Acting Regional Vice-President for the South Central Region.
In this latter position she was responsible for representing the
various branches of the Union within the South Central Region and
members at large.
In the latter part of 1984 Respondent posted Vacancy Announcement
PSC-10-84 applicable to the position of Supervisory Plant Protection and
Quarantine Officer (crew leader) GS-436-11, Houston, Texas. /4/ The
closing date for the submission of applications for the vacancy was
September 10, 1984.
On September 18, 1984 a promotion review panel was convened in
Brownsville, Texas. The promotion review panel was assigned the
responsibility of identifying and ranking the highly qualified
applicants for the supervisory position set forth in the Vacancy
Announcement. Inasmuch as there were more than ten applicants for the
vacant position, in accordance with Article XII, Section 2 of the
collective bargaining agreement, Ms. Judy Jenkin was selected as the
Union's representative on the promotion review panel. The other two
individuals on the promotion review panel were Mr. Ray Corbajal,
Assistant Officer-in-Charge at Brownsville, Texas, a management
official, and Robert Griffin, Pathologist Identifier, a bargaining unit
employee.
Prior to beginning their deliberations and consideration of the
applicants for purposes of constructing a best qualified list on
September 18, 1984, the Panel met with Mr. Cutberto Castro, a Regional
Personnel Management Specialist, who instructed them in the procedures
to be utilized in selecting the best qualified candidates.
Additionally, the Panel was given a packet of information, including a
"rating scheme" to be utilized in their deliberations. According to Ms.
Jenkin, the "rating scheme" was supposed to correspond with the
evaluation criteria appearing in the vacancy announcement.
On September 19, 1984, the Panel certified six applicants as best
qualified and submitted the list to Respondent. However, the record
reveals that the Respondent subsequently on or about October 1, 1984,
opted to fill the vacancy by means of a lateral transfer of a
supervisory PPQ Officer from outside the Houston, Texas area rather than
utilize the certified list complied by the Panel pursuant to the merit
promotion plan.
Following the submission by the Panel of the list of best qualified
candidates on September 19, 1984, Ms. Jenkin returned to El Paso, Texas
and proceeded to write a letter to Mr. W. H. Moore, Regional Director in
Brownsville, Texas, wherein she expressed her concern that the promotion
review panel may have failed to fulfill the requirements set for in
Article XXI, Sections 1 and 2 of the collective bargaining agreement.
Citing the possibility that the Union might opt to file a grievance, Ms.
Jenkin requested Mr. Moore to furnish the Union copies of all materials
used by the Panel, including, among other things, the "rating scheme."
By letter dated October 5, 1984, Mr. Moore replied in pertinent part
as follows:
Before we can provide you the information requested, could you
provide this office in more specific terms, how the merit
Promotion Review Panel may not have fulfilled the requirements in
the Collective Bargaining Agreement and why this information is
considered necessary as referenced in 5 U.S.C., Section 14.
On October 17, 1984, Ms. Jenkin filed a grievance wherein it was
alleged, among other things, that "As illustrated by the Promotion
Review Panel held in Brownsville on September 18 and 19, management has
unilaterally structured the rating scheme in such a way to change the
evaluation criteria. This is in violation of the Collective Bargaining
Agreement, Article XII, Section 1." The covering letter accompanying the
grievance pointed to the attached grievance as the reason that Union had
requested, among other things, the "rating scheme."
By letter dated November 2, 1984, Mr. Cutberto Castro, Personnel
Management Specialist, South Central Region, informed Ms. Jenkin, among
other things, that the rating criteria utilized by the Panel was the
"same as the criteria previously used in all like positions in the South
Central Region." Mr. Castro further stated as follows:
Your request for all materials used during the panel process is
not considered a reasonable request.
The release of the rating scheme (crediting plan) is considered
confidential material and not releasable. A copy of a recent
court decision is provided for your information.
Although this informaton cannot be provided I did state to you
that you would be given access to this information, for review but
not for duplication, during your next participation in a future
panel evaluation or to an NAAE designee.
Ms. Jenkins testified that she was concerned that the "rating scheme"
utilized in the Panel's deliberations did not agree with the "evaluation
criteria" set forth on the vacancy announcement.
Discussion and Conclusions
Respondent, who does not contest the above recitation of the facts,
takes the position that (1) FPM Supplement 335-1, Subchapter S6, as
interpreted by former OPM Director Donald Devine prohibits the
disclosure of the "rating scheme" since it would give an advantage to a
future applicant possessing the "rating scheme" in applying for a
similar position, (2) since the Second Circuit Court of Appeals in U.S.
Customs Service, Region II v FLRA and NTEU, 739 F2d 829 found crediting
plans to be outside the scope of bargaining the Union is not entitled to
the information, (3) inasmuch as Respondent is willing to allow the
Union to look at the "rating scheme" in camera there is no necessity for
supplying a copy of the "rating scheme," and (4) that the matter is moot
since the vacancy position was filled by a transfer and not from the
certified list compiled by the Panel.
The General Counsel, on the other hand, while acknowledging the
Circuit Court's decision in U.S. Customs Service, Region II, supra,
takes the position that the Authority has not indicated its intent to
adopt the decision of the Circuit Court and points out that in any event
there is no showing that Union intended to bargain over the "rating
scheme." Further, according to the General Counsel the Authority has in
the past considered the effect of FPM Supplement 335-1, Subchapter S6
and concluded that such regulation does not prohibit the disclosure of
crediting plans. In view of the foregoing and since the "rating scheme"
meets the requirements of Section 7114(b)(4) and is necessary and
relevant to the preparation and prosecution of its grievance,
Respondent's refusal to make the "rating scheme" available is violative
of Sections 7116(a)(1), (5), and (8) of the Statute.
It is well established that under Section 7114(b)(4) of the Statute
an agency is obligated, upon request, to furnish the exclusive
representative of its employees information within its possession which
is necessary and relevant to the performance of the exclusive
representative's representational obligations, which include, among
other things, the processing of grievances. U.S. Custom Service, Region
VII, Los Angeles, California, 10 FLRA 251.
While the Respondent does not appear to argue with the state of the
law, it does defend its action in refusing to make the rating plan
available on four separate grounds, namely, the Circuit of Appeals
decision in U.S. Customs Service, Region II v FLRA, supra, finding that
crediting plans are non-negotiable, FPM Supplement 335-1, Subchapter S6,
mootness, and its willingness to allow the Union to view the rating
scheme in camera.
With regard to the Respondent's first defense, while it is true that
the Circuit Court of Appeals did overrule the Authority's decision in
National Treasury Employees Union and NTEU Chapters 153, 161, and 183
and U.S. Customs Service, Region II, 11 FLRA 209, and found that
crediting plans are non-negotiable, there is no indication by the
Authority that it intends to modify its position in the matter.
Accordingly until there is some indication of the course the Authority
will take in the matter I am constrained to follow the Authority's
holding. Moreover, there is no showing that the Union herein seeks to
negotiate over the rating plan, rather it merely seeks a copy of the
plan for purposes of comparing it with the vacancy announcement in order
to determine whether there has been compliance with Article XII, Section
1 of the contract. In this latter context the Circuit Court of Appeals
decision is silent as to the Authority's finding in National Treasury
Employees Union and NTEU Chapters 153, 161 and 183 and U.S. Customs
Service, supra, namely that FPM Supplement 335-1, Subchapter S6 does not
bar the disclosure of the Rating Scheme if its release would not create
any unfair advantage to some candidates or compromise the utility of the
selection process. In the instant case there is no showing that the
disclosure of the rating plan would create any unfair advantage.
With regard to the Respondent's third defense predicated upon
mootness, I find contrary to the contention of Respondent that matter is
not moot. The Union's grievance concerns the manner in which the
Respondent constructs its vacancy announcements and not the filling of
instant PPQ vacancy. Thus, the Union contends that there is a variance
between the evaluation criteria and the actual rating criteria which is
contrary to the collective bargaining agreement.
With regard to the Respondent's last defense, i.e. that its offer to
allow the Union to view the rating scheme in camera satisfies its
obligations under Section 7114(b)(4) of the Statute, sufficeth to say
that Section 7114(b)(4) provides that the Union will be furnished the
information, not merely allowed the limited opportunity of viewing the
same in camera.
[aving determined that Respondent's defenses lack merit, the sole
question remaining for determination is whether the "rating scheme" is
necessary and relevant to the processing of the Union's grievance.
The Union contends that the criteria underlying the rating scheme is
different that the evaluation criteria set forth in the vacancy
announcement and as such constitutes a violation of the collective
bargaining agreement. In order to demonstrate the difference in such
criteria it is necessary to have the rating scheme for purposes of
comparison. Accordingly, I find that the rating scheme falls within the
ambit of Section 7114(b)(4) of the Statute and that the refusal of the
Respondent to furnish the rating scheme to the Union in connection with
the processing of its grievance constitutes a violation of Sections
8(a)(1), (5) and (8) of the Statute.
Having found that the Respondent has violated the Statute I hereby
recommend that Authority issue the following order designed to
effectuate the purposes and policies of the Statute.
ORDER
Pursuant to Section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and Section 7118 of the Statute, it is
hereby ordered that the Union States Department of Agriculture, Animal
and Plant Health Inspection Service, Plant Protection and Quarantine
shall:
1. Case and desist from:
(a) Failing and refusing to furnish to the National Association
of Agriculture Employees, the employees' exclusive representative,
a copy of the rating scheme for a Supervisory Plant Protection and
Quarantine Officer (crew leader).
(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 in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Furnish the National Association of Agriculture employees,
the exclusive representative of its employees, a copy of the
rating scheme for a Supervisory Plant Protection and Quarantine
Officer (crew leader).
(b) Post at all facilities within the South Central Region
copies of the attached Notice on forms to be furnished by the
Federal Labor Relations Authority. Upon receipt of such forms
they shall be signed by a responsible official of the U.S.
Department of Agriculture and shall be posted and maintained by
him for 60 consecutive days thereafter, in conspicuous places,
including bulletin boards and other places where notices to
employees are customarily posted. Reasonable steps shall be taken
to insure that such notices are not altered, defaced, or covered
by any other material.
(c) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director for Region 6, Federal
Labor Relations Authority, in writing, within 30 days of the date
of this Order, as to what steps have been taken to comply
herewith.
/s/ Burton S. Sternburg
BURTON S. STERNBURG
Administrative Law Judge
Dated: June 28, 1985
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) The Respondent also filed a request to submit a response to the
Union's opposition, alleging that a document and related contention in
the Union's opposition raised new issues to which the Respondent
previously did not have an opportunity to respond. The Union filed a
motion to reject the Respondent's submission on the grounds that the
submission was not provided for in the Authority's rules and Regulations
and that the Union had not raised any new issues. It has been
determined, pursuant to section 2429.5 of the Authority's Rules and
Regulations that the disputed document submitted with the Union's
opposition and the contention in the opposition concerning that
document, which were not presented in the proceeding before the
Administrative Law Judge in this case, should not be considered by the
Authority. Accordingly, the Respondent's request to respond to the
document and related contention is denied and the Union's motion to
reject the request is denied as moot.
(2) The Complaint originally charged the Respondent with failing to
furnish certain other data in addition to the rating scheme. However,
prior to the hearing the parties reached a settlement on all items
except the "rating scheme" and the parties thereafter agreed to confine
the hearing solely to the issue of Respondent's failure to make the
rating scheme available to the Union.
(3) The record reveals that the Federal Plant Quarantine Inspector's
National Association, which is the duly recognized exclusive
representative on a nationwide basis has been operating under name of
National Association of Agriculture Employees. There has been no
official name change.
(4) The Vacancy Announcement set forth the following evaluation
criteria that the applicants should address in their respective
applications for the vacant position.
EVALUATION CRITERIA:
The applicant should include an addendum to the SF-171 on a
plane piece of paper which specifically addresses their experience
and training as it relates to the evaluation criteria. Without
this addendum, the panel cannot adequately rate the SF-171 against
the evaluation criteria.
A. Knowledge of Plant Protection and Quarantine Programs.
This includes, but it not limited to items such as fumigations,
quarantine procedures, pesticide applications, etc.
B. Ability to plan, schedule, direct and prioritize the work
of subordinate employees.
C. Knowledge of personnel regulations such as employee
development, employee relations, LMR and EEO.
D. Ability to interpret regulator information.
E. Ability to communicate orally and in writing. (0GC Ex 3)
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail and refuse to furnish the National Association of
Agriculture Employees, the employees' exclusive representative, a copy
of the rating scheme for Supervisory Plant Protection and Quarantine
Officer (crew leader).
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 furnish the National Association of Agriculture Employees a
copy of the rating scheme for Supervisory Plant Protection and
Quarantine Officer (crew leader).
(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 VI,
whose address is: Federal Office Building, 525 Griffin Street, Suite
926, Dallas, Texas 75202 and whose telephone number is: (214) 767-4996.