18:0377(51)CA - Customs Service, Region VIII, San Francisco, CA and NTEU -- 1985 FLRAdec CA
[ v18 p377 ]
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 "discussing the crediting plan's contents or referring to them in any greater depth than was known or described by the undersigned. /5/ Factual findings are also based on a Stipulation of Facts between the parties which was read into the record at the hearing and is contained in the transcript herein. /6/ Article 31 of the bargaining agreement, which is entitled GRIEVANCE PROCEDURE, contains provisions for the processing and disposition of grievances. Section 3 thereof provides, inter alia, that a grievance means any complaint: "(3) By any employee within the bargaining unit, by the union, or by the employer concerning: (a) The effect or interpretation, or a claim of breach, of this agreement; . . . " /7/ The Authority also held union proposals establishing crediting plans for merit promotions constituted a negotiable procedure. See National Treasury Employees Union and NTEU, Chapters 153, 161 and 183 and U.S. Customs Service, Region II, 11 FLRA No. 47. It was also found by the Authority that disclosure of crediting plans was not inconsistent with FPM Supplement because if all candidates had equal access to the plan, no candidate would be disadvantaged nor would the selection process by comprised. /8/ Joint Exhibit 4(a). /9/ Joint Exhibit 4(b). /10/ Joint Exhibit 4(c). /11/ The unsanitized crediting plan involved herein was submitted to the undersigned in camera at the hearing. It is forwarded, along with the entire record herein, to the Authority in a sealed envelope for its consideration in the disposition of this case. /12/ In conjunction with its holding re the negotiability of the crediting plan proposals, the Authority stated that the content of crediting plans can be released consistent with FPM Supplement 335-1, S6, if the release would not create unfair advantages to some candidates or compromise the selection process. The Authority concluded, in the aforesaid case, that it did not appear such advantage or compromise would result from a disclosure of the crediting plans set forth in the union's proposals. /13/ Neither recent case involving crediting plans is dispositive of the issue raised herein. The earlier decision (11 FLRA No. 47) dealt with the negotiability of such a proposed plan and was not concerned with the issues posed by Respondent in the case at bar. The other decision (13 FLRA No. 105) dealt with an election of remedies by the union and the filing of a grievance, under the contract, by reason of not receiving the crediting plan. In the instant case the Union did not file a grievance based on management's failure or refusal to furnish the crediting plan. Accordingly, it cannot be concluded that the Union herein had made an election of remedy and was barred under Section 7116(d) of the Statute from alleging the failure or refusal by management as an unfair labor practice. /14/ The undersigned is aware that, in the private sector, the Collyer doctrine was not embraced absolutely in all subsequent cases. Further, that the various Board members disagreed at times with respect to its applicability. Moreover, in instances where individual discrimination occurred, the Board refused to defer to arbitration despite contractual provisions in that regard. Nevertheless, the undersigned feels compelled to outline the rationale set forth in said doctrine relegating the parties to their agreed upon grievance/arbitration procedure to resolve disputes involving collective bargaining. /15/ General Counsel adverts to Article 17, Section 7 which states that existing crediting plans will be disclosed to the union if appropriate authority endorse such release. It is argued that if the parties intended the grievance/arbitration provision of Section 17 to cover the release of the crediting plan, no logical explanation appears as to why they included Section 7. I find no inconsistency in the existence of these clauses. Section 7 is a general provision re furnishing crediting plans which, per se, may relate to requests involving bargaining on various working conditions. Had Section 17 referred merely to disputes re promotion requiring resolution via grievance/arbitration, some merit might be awarded to General Counsel's argument. However, this section does not negate the inclusion of crediting plans within the term "evaluative materials," but seeks to embrace them within the latter term when sought in connection with a promotion dispute resulting in a grievance.