18:0377(51)CA - Customs Service, Region VIII, San Francisco, CA and NTEU -- 1985 FLRAdec CA



[ v18 p377 ]
18:0377(51)CA
The decision of the Authority follows:


 18 FLRA No. 51
 
 U.S. CUSTOMS SERVICE, REGION VIII 
 SAN FRANCISCO, CALIFORNIA 
 Respondent
 
 and 
 
 NATIONAL TREASURY EMPLOYEES UNION 
 Charging Party
 
                                            Case No. 9-CA-993
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued his Decision in the
 above-entitled proceeding, finding that the Respondent had not engaged
 in the unfair labor practices alleged in the complaint, and recommending
 that the complaint be dismissed in its entirety.  Thereafter, the
 Charging Party filed exceptions to the Judge's Decision, the General
 Counsel filed cross-exceptions, and the Respondent filed an opposition
 to the Charging Party's exceptions.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, /1/ conclusions and recommended Order.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 9-CA-993 be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., June 12, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Gary B. Landsman, Esq.
    For the Respondent /2/
 
    Bari S. Ness, Esq.
    For the General Counsel
 
    Andrew Krakoff, Esq.
    For the Charging Party
 
    Before:  WILLIAM NAIMARK, Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    Pursuant to an Amended Complaint and Notice of Hearing issued on
 December 14, 1981 by the Acting Regional Director for the Federal Labor
 Relations Authority, San Francisco, California Region, a hearing was
 held before the undersigned on June 16, 1982 at San Francisco,
 California.
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, 5 U.S.C. 7101 et seq. (herein called the Statute).
 It is based on a charge filed on April 22, 1981 by National Treasury
 Employees Union (herein called the Union) against U.S. Customs Service,
 REGION VIII, San Francisco, California (herein called Respondent).
 
    The Amended Complaint alleged, in substance, that on or about
 February 17, 1981 the Union requested a copy of the crediting plan used
 in connection with the evaluation of employee Robert Williams;  that the
 Union requested such plan of Respondent in connection with its
 processing of a grievance over the non-selection of Williams for a
 promotion;  that such request was made in order for the Union to
 evaluate and determine the merits of the grievance.  It was further
 alleged that on or about February 25, 1981 Respondent refused to provide
 the aforesaid crediting plan as requested.  By virtue of the foregoing,
 it was alleged that Respondent failed to comply with Section
 7114(b)(4)(A) and (B) of the Statute;  that by such conduct Respondent
 violated Section 7116(a)(1), (5) and (8) of the Statute.
 
    Respondent's Amended Answer was filed on December 31, 1981.  While
 admitting its refusal to provide the Union with the crediting plan,
 Respondent denied the commission of any unfair labor practices.  It
 raised therein three affirmative defenses:  (1) The Union filed a
 negotiability appeal (0-NG-250) with the Authority on January 23, 1980
 and raised the issue of whether the agency was required to bargain re
 the release of a crediting plan.  Hence action under any other
 procedure, including the instant proceeding, should be suspended pending
 the outcome of the negotiability petition;  (2) The national agreement
 between the parties provides for the disclosure of crediting plans "when
 and if appropriate authorities hold that it is not improper to do so."
 Since the issue is before the Authority on the negotiability petition,
 it must await a decision from the Authority as provided in the
 agreement;  (3) The Union filed a petition with the Merit Systems
 Protection Board, Case No. HQ120500003, requesting a review of Federal
 Personnel Manual Supplement 335-1, alleging its provisions denying
 access to crediting plan violated 5 U.S.C. 2302(b)(1), (2), (4)-(7),
 (10), and (11).  On January 13, 1981 the said Board found the aforesaid
 FPM Supplement was valid and rationally related to preventing unfair
 advantage to any competing applicant or employee. On November 13, 1981
 the Board held that this agency, by implementing the FPM Supplement, did
 not require the commission of a prohibited personnel practice.
 
    All parties were represented at the hearing.  Each was afforded an
 opportunity to be heard, to adduce evidence, and to examine as well as
 cross-examine witnesses.  Thereafter briefs /3/ were filed with the
 undersigned which have been duly considered.  /4/
 
    Upon the entire record herein, and from all of the testimony and
 evidence adduced at the hearing, I make the following findings and
 conclusions:
 
                           Findings of Fact /5/
 
    1.  At all times material herein, the Union has been certified as the
 exclusive representative of employees in the following bargaining units:
 
          (a) All professional employees assigned to the Office of
       Regulations and Rulings and the Headquarters Office and to Regions
       II and IX of the U.S. Customs Service, excluding all
       non-professional employees, all employees assigned to the Office
       of Investigations, the Office of Management Integrity, and the
       Office of the Chief Counsel;  all other professional employees
       assigned to Regions I, III, IV, V, VI, VII and VIII;  management
       officials;  employees engaged in Federal personnel work in other
       than a purely clerical capacity;  confidential employees;  guards;
        and supervisors as defined in the Act.
 
          (b) All non-professional employees assigned to the Office of
       Regulations and Rulings and to the Headquarters Office and to
       Regions I, II, III, IV, V, VI, VII, VIII and IX of the U.S.
       Customs Service, excluding all professional employees;  all
       employees assigned to the Office of Investigations;  the Office of
       Management Integrity;  and the Office of the Chief Counsel;
       management officials;  employees engaged in Federal personnel work
       in other than a purely clerical capacity;  confidential employees;
        guards;  and supervisors as defined in the Act.
 
    2.  At all times material herein the Union and Respondent have been
 parties to a collective bargaining agreement covering the employees in
 the aforesaid units.  The said agreement was effective, by its terms, on
 June 30, 1980 for a term of two years and provided for automatic renewal
 under specified conditions.
 
    3.  The said collective bargaining agreement provides under Article
 17 (MERIT PROMOTION) inter alia, as follows:
 
          Section 7.  A. The employer will utilize appropriate job
       analysis techniques in establishing evaluation criteria which are
       closely related to the principal duties of the position.
 
          B.  The employer will develop numerical crediting plans for the
       use by Evaluation Boards in measuring the extent to which
       candidates possess designated evaluation criteria as set forth in
       the vacancy announcement.  The crediting plans will include
       various definitions or examples of experience, training,
       education, personal characteristics and any other relevant factor
       at each rating level.  The applicant's background will be compared
       against the crediting plan definitions for each of the evaluation
       criteria to assess the degree to which he possesses the elements
       being evaluated.
 
                                .  .  .  .
 
          D.  All existing crediting plans will be disclosed to the union
       when and if appropriate authorities told that it is not improper
       to do so.
 
          E.  The crediting plans referred to in this section shall serve
       as the sole basis for the Evaluation Board assessment of the
       applicant's potential to serve in the vacant position.
 
          Section 8.  A. The employer will appoint an Evaluation Board of
       three to five members to evaluate the potential of the candidates
       to perform in the vacant position . . . .
 
                                .  .  .  .
 
          E.  The board's evaluation shall be based upon the evaluation
       criteria established by the employer for the vacant position.
 
                                .  .  .  .
 
          Section 17.  A. In processing or investigating grievances
       related to promotion actions taken pursuant to the provision of
       this article, the grievant or his union representative, upon
       request, will be provided with the evaluative materials utilized
       or generated by the Evaluation Board in rating and ranking
       qualified candidates subject to the following conditions:
 
          (1) release of the documents or materials is not precluded by
       law or the regulation of appropriate authority;
 
          (2) such materials or document shall be properly sanitized to
       protect the privacy of applicants and Board Members involved in
       the promotion actions;
 
          (3) if the grievance is confined to "Best Qualified" candidates
       only the evaluative material of such candidates will
 
 be
 
       provided;  and
 
          (4) if the grievance involves "Qualified" candidates, the
       evaluative material of all qualified and best qualified candidates
       will be provided, but in no case will such information be provided
       for more than the top seventy-five (75) candidates.
 
          B.  Challenges to the employer's actions in implementation of
       sub-section A above shall be resolved under the grievance and
       arbitration provisions provided in this agreement.  /6/
 
    4.  On January 23, 1980 the Union filed a negotiability appeal
 (0-NG-250) with the Federal Labor Relations Authority.  The Authority
 rendered its decision on February 3, 1983 in National Treasury Employees
 Union and Department of the Treasury, U.S. Customs Service, Washington,
 D.C., 11 FLRA No. 52.  It held that proposals by the union, which
 established a crediting plan by which qualifications of candidates for
 unit positions would be evaluated against job requirements established
 by management to determine the extent to which candidate is qualified,
 is negotiable.  /7/
 
    5.  On February 7, 1980 the Union filed a petition with the Merit
 System Protection Board, Case No. HQ120500003 requesting review of
 Federal Personnel Manual (FPM) Supplement 335-1.  This section, entitled
 "Evaluation of Employees for Promotion and Internal Placement,"
 provides, inter alia, for the security of crediting plans, and requires
 agencies to determine the degree of safety appropriate to maintain
 control of materials.  The Merit System Protection Board issued an
 Opinion and Order on March 13, 1981 in which it determined that FPM
 Supplement 335-1 S6 was not being invalidly implemented by Customs
 Service.
 
    6.  The particularly relevant portions of FPM Supplement 335-1, S6-1,
 are as follows:
 
          Individuals responsible for the personnel measurement program
       must clearly identify those examination materials (such as test
       materials, rating guides, or crediting plans) which require
       security and control, and ensure that proper security and control
       are maintained.  Instructions must be issued to maintain the
       security and control of examination materials which, if exposed to
       unauthorized persons, might provide unfair advantage to some
       candidates or otherwise comprise the utility of the selection
       procedure . . . .  Material covered by the instructions must not
       be exposed to any persons, including management officials, members
       of employee organizations, or non-Federal personnel who do not
       have an official need to see the material.  No evaluation
       procedure subject to security and control may be administered to
       an employee who has had access to the covered material . . . .
 
    7.  On December 12, 1980 Respondent issued a Vacancy Announcement for
 the position of Senior Customs Inspector, GS-1890-11, Announcement No.
 R-62-80 IKM.
 
    8.  Thereafter Robert W. Williams, a bargaining unit employee,
 submitted an application in connection with that merit promotion
 announcement.  Williams was not selected for the position.
 
    9.  On February 17, 1981 a grievance was filed by Union Steward Steve
 Paskus on behalf of Williams for failing "to properly ranked among
 eligibles for Senior Inspector.  Vacancy R-62-80." As part of the
 grievance the Union requested "all credibility materials and evaluative
 material utilized or generated by the board in ranking the qualified
 candidates on the Best Qualified List."
 
    10.  Under date of February 25, 1981 Sterl F. Miller, Respondent's
 Director, Labor Relations Officer, wrote a letter to Steve Paskus
 stating that the crediting plan could not be furnished.  The refusal was
 based on Federal Personnel Manual Supplement 335-1, Subchapter S6-1,
 which deals with security of examination materials. As stated by Miller,
 this requires that applicants not have access to this material and thus
 gain an advantage and, further, that the integrity of the selection
 process not be compromised.
 
    11.  In a letter dated March 20, 1981 Miller sent Paskus, in respect
 to the request of the Union set forth in the grievance, evaluation
 materials utilized or generated by the Customs Career Evaluation Board,
 except for the crediting plan.  (Stipulation clause No. 17).  The
 materials sent as enclosures in said letter were as follows:
 
          (a) sanitized selection register listing best qualified
       candidates referred to the selecting official.
 
          (b) sanitized Evaluation Board Tally Sheet listing all
       applicant's scores and the cut-off score between the best
       qualified and highly qualified.
 
          (c) rating sheet used to tally the grievant's ranking by the
       Customs Career Evaluation Board.
 
          (d) sanitized copies of competing employees' applications,
       continuation sheets attached to applications, performance
       appraisals, and appraisals of promotion.
 
          (e) copies of any questionnaire used in connection with the
       Vacancy Announcement and sanitized responses thereto.
 
    12.  In addition to the foregoing, documents or information available
 to a grievant or the Union in connection with an allegation of improper
 ranking or certification include but are not limited to:
 
          (a) Customs Merit Promotion Plan.
 
          (b) Vacancy Announcement for a particular position.
 
          (c) The Customs-NTEU National Agreement.
 
    13.  Under date of April 9, 1981 Respondent's Regional Commissioner
 Edward M. Ellis wrote Paskus a third step grievance letter denying the
 grievance filed on February 17, 1981.
 
    14.  The crediting plan in merit promotion action R-62-80 was created
 after July 1, 1980.  In the instant case it is maintained by the Customs
 Service Staffing Branch, San Francisco Regional Office, and is
 approximately three pages in length.
 
    15.  The Customs Career Evaluation Board is composed of three to five
 persons.  A representative from the servicing personnel office will
 always participate on the Board, along with at least two "subject matter
 experts" who are employees knowledgeable about the position under
 consideration.
 
    On occasion, unit employees familiar with the occupation may
 participate as "subject matter experts" on the Board.  Employees on the
 Board must be in a position preventing them from competing in the future
 for the position under consideration.  It is emphasized they are
 performing a management function and must maintain the confidentiality
 of the proceeding and the crediting plan.  Copies of the plan are not
 retained by any Board member.  When a vacancy is to be filled under the
 Merit Promotion Plan in Region VIII, of the U.S. Customs Service, the
 Board utilizes a crediting plan for each vacancy under consideration.
 The crediting plan is used to evaluate the applicant's experience,
 training, and achievement through a review of each employee's
 application, supervisory appraisals of performance and potential, and
 any other pertinent documents submitted.
 
    16.  The crediting plan is used to measure the extent and/or degree
 to which candidates possess the evaluation criteria (sometimes
 identified as primary and secondary criteria) in the Vacancy
 Announcement.  The primary and secondary criteria identify essential
 elements necessary for job performance in a particular position.  If,
 for example, the ability to speak in public is considered a primary
 criteria for the job, then the crediting plan would be used to determine
 if the applicant has the required knowledge, skills, abilities, and
 personal characteristics justifying a certain grade, such as A, B, or C,
 by giving the applicant credit for certain types of speaking experience.
  The knowledge, skills, abilities and personal characteristics are
 determined by referring to the information in Customs Form 67
 (application, /8/ 188 (performance appraisal) /9/ and 189 (supervisory
 appraisal of potential) /10/ and any appropriate attachment to CF 67,
 such as answers to questions in the vacancy announcements and
 supplements, and, on occasion, information from the Official Personnel
 File.
 
    The above information is compared with the crediting plan to
 determine the degree or level to which the applicants possess the
 knowledge, skills, abilities, and personal characteristics and a rating
 or grade is assigned to each criterion.  For example, to obtain an A
 under the 'ability to speak in public', an applicant must have regularly
 spoken as an instructor or keynote speaker on a complex subject.  In
 another example, if one of the primary criteria was the ability to
 analyze, in order to obtain an A rating, the candidate must demonstrate
 the ability to research complex multifaceted issues requiring
 interpretation, utilizing a wide variety of research materials such as
 regulations, policy issues, and Comptroller General decisions.  This
 would be contrasted in the crediting plan with the employee who would
 receive a B or C rating because he or she could only demonstrate the
 ability to research simple questions using a limited amount of material
 and where the answers are clear cut.
 
    This letter rating is translated to a numerical value (e.g., A=3) and
 the Best Qualified List is then compiled according to these scores.
 Therefore, the credit which is ascertained from the knowledge, skills,
 abilities and personal characteristics will determine the make-up of the
 Best Qualified List.  The list of those rated best qualified is then
 forwarded to the selecting official for consideration.
 
    17.  No employee may grieve non-selection from a properly ranked and
 certified Best Qualified List.  It is the burden of the aggrieved
 employee to demonstrate that the Best Qualified List in question was not
 properly ranked and certified, or that non-competitive and/or non-merit
 factors were used in constructing it.
 
    18.  Under date of February 12, 1982 OPM Assistant Director for
 Staffing, William R. Irvin, wrote Respondent's Counsel, Gary B.
 Landsman, a letter re the releasing of the crediting plan.  Irvin stated
 that OPM had concluded certain portions of the crediting plan for Senior
 Customs Inspector GS-1890-11, San Francisco Region, should not be
 released, i.e., "those portions of the crediting plan containing
 narrative descriptions of specific duties and/or tasks which would be
 credited at a particular level." The basis for OPM's recommendation was
 the possibility that applicants could slant or tailor their experience
 to fit the narrative description.  Moreover, it was felt that in many
 areas verification could not be obtained of the information set forth by
 the applicant.
 
    19.  In conformance with the advice from OPM, the Respondent sent the
 Union on May 25, 1982 a sanitized copy of the crediting plan for the
 aforesaid position.
 
    20.  The crediting plan, /11/ which is the subject of the dispute
 herein and has not been released, contains three pages and is entitled
 "Crediting Plan, Senior Customs Inspector, GS-1890-11, PD 111-1157."
 Four criteria are specified in the plan:  (a) Knowledge of Customs laws
 and regulations and laws of other government agencies;  (b) Ability to
 deal with a variety of individuals;  (c) Ability to communicate orally;
 (d) Ability to communicate in writing.  Under each criterion are listed
 various experiences used as a measurement to determine the knowledge,
 skills, and abilities of an applicant, and which, in each instance, will
 support a rating of either "excellent", "good", or "satisfactory".
 Certain experiences set forth under each criterion were stricken by
 Respondent and not included in the sanitized crediting plan.
 
                                Conclusions
 
    In asserting that Respondent violated the Statute by not furnishing
 the crediting plan to the Union, the General Counsel relies upon Section
 7114(b)(4)(A), (B) and (C) thereof.  That statutory language specifies
 that the duty to negotiate in good faith includes an obligation, on the
 part of an agency, to furnish the exclusive 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, counsel, or
       training provided for management officials or supervisors,
       relating to collective bargaining.
 
 General Counsel insists that the crediting plan, which is clearly
 maintained by Respondent in the normal course of business, is necessary
 and relevant to the Union's representational activities.  In particular,
 it is contended that the Union requires the plan in order to determine
 whether the bargaining agent should investigate the nonselection of
 Williams as Senior Customs Inspector and perform its duties as such
 representative.  Since the crediting plan contains evaluation criteria
 used by the Customs Career Evaluation Board to measure the extent to
 which candidates possess requisite qualifications for promotion, General
 Counsel argues it is unlikely the Union could prevail in a grievance
 without access to the plan.  Further, it is contended the disclosure of
 the crediting plan is not prohibited by law or regulation, and that no
 bar exists to the furnishing of the requested information.
 
    Respondent takes issue with the foregoing contentions.  In so doing,
 it raises various defenses, including (1) the Privacy Act permits the
 agency to exempt the crediting plan from disclosure;  (2) FPM Supplement
 335-1 is a governing regulation which mandates non-disclosure of
 crediting plans when their exposure might provide unfair advantage to
 some candidates or otherwise compromise the utility of the selection
 procedure-- all of which would occur herein;  (3) an FLRA decision
 mandating the release of the crediting plan would require Respondent to
 commit a violation of a prohibited personnel practice as set forth in 5
 U.S.C. 2302(b)(6);  (4) The crediting plan sought by the Union was not
 necessary and relevant to carry out its representational duties;  (5)
 filing of a negotiability appeal in Case No. 0-NG-250 constitutes an
 election of procedures under 5 CFR 2424.5 and bars the unfair labor
 practice charge;  (6) under the collective bargaining agreement between
 the parties the Union was required, as set forth in Article 17, Section
 17 A and B, to resolve this dispute under the grievance and arbitration
 procedure.
 
    The basic issue presented herein is as follows:  whether, under the
 circumstances herein-- including the OPM regulation referred to, as well
 as the contractual clause set forth in Article 7 of the collective
 bargaining agreement-- Respondent was required to furnish the Union with
 a copy of the unsanitized crediting plan.
 
    It is quite clear that in the public sector Section 7114(b)(4) of the
 Statute imposes an obligation upon management to furnish a union with
 information enabling the latter to carry out its representational duties
 during the processing of a grievance.  The employer must turn over
 material which is necessary and relevant concerning a unit employee's
 nonselection for promotion under negotiated merit promotion procedures.
 Refusal to do so is violative of Section 7116(a)(1) and (5) of the
 Statute.  U.S. Customs Service, Region VII, Los Angeles, California, 10
 FLRA No. 47 (1982).  See also, Bureau of Alcohol, Tobacco and Firearms,
 National Office and Western Region, San Francisco, California, 8 FLRA
 No. 108 (1982);  Veterans Administration Regional Office, Denver,
 Colorado, 7 FLRA No. 100 (1980).  Thus, absent any prohibition by law or
 special defense which may be recognized by the Authority, a union is
 entitled to data which is relevant and necessary to perform
 representational duties, including the processing of a grievance.
 
    While not addressing the precise issue raised herein, the Authority
 has had occasion to consider several cases recently involving a
 crediting plan.  Thus, in National Treasury Employees Union and NTEU
 Chapters 153, 161, and 183 and U.S. Customs Service, Region II, 11 FLRA
 No. 47, (1983), the Authority was confronted with a negotiability issue
 regarding a crediting plan for an Import Specialist proposed by the
 union.  It held that the proposals for such a plan were negotiable;
 that they would only establish criteria for more precisely evaluating
 experience and education of qualified candidates;  that such crediting
 plan would not prevent management from exercising its discretion to hire
 employees.  /12/
 
    In Department of the Treasury, U.S. Customs Service, Region VIII, San
 Francisco, California, 13 FLRA No. 105 (1984), which involved the same
 parties as herein, the union requested management's crediting plan to
 determine whether to process a grievance on behalf of an employee denied
 a promotion to Customs Inspector.  The Customs Service refused to
 provide a copy of the plan, citing Article 17, Section 7(D) of the
 negotiated agreement, which stated that "All existing crediting plans
 will be disclosed to the union when and if appropriate authorities hold
 that it is not improper to do so." The union therein filed a grievance
 under said agreement over the failure by management to provide the
 information as a blatant breach of the contract.  The Authority
 concluded that the issue raised by the complaint was the same as the one
 posed by the grievance-- the failure to disclose the crediting plan.  It
 stated as follows:
 
          "Thus, the Authority finds that the Union's prior invocation of
       the grievance procedure under the parties' negotiated agreement
       regarding the non-release of information, including the subject
       crediting plan, constituted an election of that procedure under
       the section 7116(d) of the Statute, thereby precluding such issue
       from being raised subsequently as an unfair labor practice."
 
 Whereupon the Authority dismissed the complaint in the Department of the
 Treasury, U.S. Customs Service, Region VIII, San Francisco, California,
 supra, but declared it did so without passing upon whether management is
 obligated, under 7114(b)(4), to disclose crediting plans under
 appropriate circumstances.  /13/
 
    It seems apparent that the crediting plan may well be relevant and
 necessary for the Union herein to properly perform its representational
 functions, i.e. the processing of the grievance on behalf of Williams
 based on his nonselection for promotion.  Notwithstanding such a
 conclusion, serious doubts concerning Respondent's obligation to furnish
 the unsanitized crediting plan are raised by virtue of Article 17,
 Section 17 A and B of the negotiated agreement herein.  Under 17A the
 employer has undertaken to provide the Union, in the processing or
 investigation of a grievance related to promotion action, certain data
 which is utilized or generated by the Evaluation Board in rating and
 ranking qualified candidates.  Specifically, the agreement provides that
 the data to be so provided will be evaluative materials so utilized or
 generated by the Board.  Further, under 17B, all challenges to the
 employer's actions in implementing 17A, shall be resolved under the
 grievance and arbitration provision of the negotiated agreement.
 
    The aforesaid contractual provisions raise the question squarely as
 to whether, based on the agreement of the parties, the dispute herein
 should be handled via the grievance-- arbitration procedures.  This
 issue was faced by the National Labor Relations Board in the private
 sector in Collyer Insulated Wire, et al., 192 NLRB No. 150 (1971).
 Certain unilateral changes by management formed the basis of a refusal
 to bargain complaint against the employer.  Included within the
 collective bargaining agreement, between the employer and the union, was
 a clause providing for the resolution of any disputes with the
 corporation by means of the grievance/arbitration machinery established
 thereunder.  The Board dismissed the complaint.  It concluded, inter
 alia, as follows:
 
          "When the parties have contractually committed themselves to
       mutually agreeable procedures for resolving their disputes during
       the period of the contract, we are of the view that those
       procedures should be afforded the opportunity to function" (pp.
       842-843).
 
    The facts in the cited case presented not only an alleged violation
 of the National Labor Relations Act but an alleged breach of the
 collective bargaining agreement subject to arbitration.  They posed an
 accommodation, on the Board's part, between favoring full use of
 collective bargaining and the arbitral process, on the one hand, and the
 policy of Congress granting to the Board exclusive jurisdiction to
 prevent unfair labor practice on the other hand.  In favoring deferral
 to the grievance/arbitration process, as agreed to by the parties, the
 Board adhered to its rationale enunciated in Jos. Schlitz Brewing
 Company, 175 NLRB No. 23 ( . . . ).  The latter case likewise involved a
 departure from an existing practice which resulted in an unfair labor
 practice charge being filed by the bargaining agent.  The Board
 acknowledged the fact that the parties set up, in the contract,
 grievance and arbitration machinery broad enough to resolve disputes,
 such as whether the employer was privileged to make changes under the
 contract.  Moreover, the unilateral action, observed the Board, was not
 undertaken to undermine the union.  Accordingly, the particular case was
 deemed appropriate for deferral to arbitration.  /14/
 
    No decisional law exists in the public sector which has passed
 directly on the issue involved herein.  However, the undersigned is
 persuaded that the parties to the present collective bargaining
 agreement should be required to abide by the commitment expressed
 therein.  A review of Article 17, Section 17 A and B persuades me,
 moreover, that the set of facts in the case at bar fall squarely within
 such contractual provisions;  and that the dispute with respect to
 supplying the crediting plan to the Union should be, as agreed upon by
 the parties, handled through the grievance/arbitration machinery
 established in the contract.
 
    Adverting to the particular provisions of the agreement, it is noted
 that Article 17, Section 17A specifically refers to the furnishing of
 "evaluative materials," in processing or investigating grievance related
 to promotion actions, which are utilized by the Evaluation Board in
 rating and ranking candidates.  This language clearly deals with the
 disclosure of such materials during a grievance concerning a promotion.
 It mandates that, as here, the Respondent turns over such data to the
 Union when one grieves over not being promoted.  In respect to this
 particular provision being applicable herein, General Counsel argues
 that it is questionable whether a crediting plan falls within the term
 "evaluative material." I disagree.  The crediting plan, as conceded,
 contains evaluative criteria used by the Evaluation Board to measure the
 extent and/or degree to which candidates possess the requisite
 qualifications for promotion.  It is apparent from the record herein,
 and stipulated to by the parties, that the crediting plan is used to
 evaluate the applicant's experience, training, and achievements through
 a review of the application, supervisory appraisals and other pertinent
 documents which are submitted.  The record facts demonstrate quite
 clearly that the crediting plan is the foundation for comparative
 evaluation of an applicant's rating.  As such, I am convinced that it
 comes within the term "evaluative materials" utilized or generated by
 the Board in ranking candidates for promotion.  /15/
 
    Finally, General Counsel avers that, at best, the term "evaluative
 materials" is ambiguous or subject to contract interpretation.  It
 contends that the term does not clearly include crediting plans and one
 may argue that such a plan is not embraced under "evaluative materials."
 Assuming arguendo that such contention was meritorious, it would lend
 further support for the conclusion that the matter be resolved via the
 grievance/arbitration process.  The Authority has repeatedly expressed
 the view that where a dispute involves contract interpretation it should
 be resolved through the contractual grievance and arbitration
 procedures.  Such resolution channel would be appropriate rather than
 the unfair labor practice route.  Harry S. Truman Memorial Veterans
 Hospital, Columbia, Missouri, 11 FLRA No. 90 (1983);  Iowa National
 Guard, et al., 8 FLRA No. 101 (1982).
 
    Accordingly, and based on the foregoing, I am satisfied that, to the
 extent expressed in Article 17, Section 17 A and B of the negotiated
 agreement, the Union has waived its right to protest the non-disclosure
 of the crediting plan via this unfair labor practice proceeding.  The
 undersigned is satisfied that, under these contractual provisions, the
 parties intended to resolve a dispute re the non-disclosure of the
 crediting plan, in connection with a grievance involving a non-selection
 for promotion, through the arbitration machinery.  Moreover, the
 language did not make the use of this machinery optional, for the
 agreement specifically stated that such dispute shall be so resolved.
 Thus, I am constrained to conclude that the dispute herein, which
 concerned the failure by Respondent to furnish its unsanitized crediting
 plan to the Union in connection with the nonselection of Williams for
 promotion to Senior Inspector, should have been resolved by means of the
 contractual arbitration process.  Based on that conclusion, I find that
 Respondent did not violate Section 7116(a)(1) and (5) of the Statute by
 failing and refusing to furnish the Union the said crediting plan.
 
    Having concluded for the reasons set forth above that Respondent did
 not violate the Statute as alleged, it is hereby recommended that the
 Authority issue the following:
 
                                   ORDER
 
    The Amended Complaint in Case No. 9-CA-993 be, and the same hereby
 is, DISMISSED.
 
                                       WILLIAM NAIMARK
                                       Administrative Law Judge
 
    Dated:  March 27, 1984
    Washington, DC
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ In adopting the Judge's conclusion that the Union had
 contractually waived its right to file an unfair labor practice charge
 over the Respondent's non-disclosure of a crediting plan, the Authority
 specifically does not adopt the Judge's discussion with regard to the
 private sector doctrine of deferral to negotiated arbitration procedures
 enunciated by the National Labor Relations Board in Collyer Insulated
 Wire, A Gulf and Western Systems Co., 192 N.L.R.B. 837 (1971).  See
 section 7116(d) of the Statute. See also Federal Aviation
 Administration, Spokane Tower/Approach Control, 15 FLRA No. 135 (1984).
 
 
    /2/ In a letter dated February 27, 1984 Allan L. Martin, Esq.
 requested the Regional Director, Region IX, San Francisco, California to
 enter his appearance herein in place of Gary Landsman as representative
 of record.
 
 
    /3/ The Office of Personnel Management was granted a request to file
 an amicus curiae brief in the instant case.  A brief was so filed on
 October 29, 1982.
 
 
    /4/ In its Reply Brief the Union contended that Respondent's counsel
 discussed the contents of the crediting plan in its Brief contrary to an
 agreement at the hearing not to refer to such contents.  The Union made
 a request "to strike the references from the record." The request is
 denied.  I do not deem the comments in Respondent's brief as "discuss