19:0421(58)CA - Treasury, Custom Service, Region IV, Miami, FL and NTEU -- 1985 FLRAdec CA



[ v19 p421 ]
19:0421(58)CA
The decision of the Authority follows:


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