23:0681(91)NG - NTEU and Treasury, Customs Service -- 1986 FLRAdec NG
[ v23 p681 ]
The decision of the Authority follows:
23 FLRA No. 91 NATIONAL TREASURY EMPLOYEES UNION Union and DEPARTMENT OF THE TREASURY, U.S. CUSTOMS SERVICE Agency Case No. 0-NG-934 DECISION AND ORDER ON NEGOTIABILITY ISSUE I. Statement of the Case This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The issue presented concerns the negotiability of the following provision contained in the parties' locally executed agreement which was disapproved during review of that agreement by the Agency head under section 7114(c) of the Statute: /1/ Existing crediting plans will be disclosed to the union upon request. II. Positions of the Parties The Agency contends that subchapters S5-3 and S6-1 of Federal Personnel Manual (FPM) Supplement 335-1 and FPM Letter 335-15 do not permit a blanket disclosure of crediting plans but require agencies to make a case-by-case determination as to whether releasing its plans would give candidates an unfair advantage or compromise the utility of its selection process. The Agency claims that disclosure of its crediting plans would reduce their utility by (1) making it difficult for the Agency to verify nonquantitative information presented by applicants having access to the plans, and (2) resulting in applicants creating similar applications which would generate similar scores. It argues that these sections of the FPM are Government-wide regulations within the meaning of section 7117(a)(1). The Agency claims that the provision would conflict with the cited regulations and is, therefore, outside the duty to bargain. The Union contends that the release of crediting plans pursuant to the disputed provision will not result in an unfair advantage to any candidate or compromise the utility of the selection procedure. The Union argues that the provision is, therefore, not inconsistent with the FPM and is within the duty to bargain. III. Analysis and Conclusion The Union's proposal would require the Agency to disclose any existing crediting plan to the Union upon request. In National Treasury Employees Union and NTEU Chapters 153, 161 and 183 and U.S. Customs Service, Region II, 11 FLRA 209, 212-13 (1983), reversed on other grounds sub nom. U.S. Customs Service, Region II v. FLRA, 739 F.2d 829 (2d Cir. 1984), /2/ the Authority held that FPM Supplement 335-1, subchapter S6, and FPM Letter 335-15, which revised FPM Supplement 335-1, subchapter S5, authorize release of crediting plans where the release would not create any unfair advantage to some candidates or compromise the utility of the selection process. However, a determination as to whether release of crediting plans would create an unfair advantage or compromise the utility of the selection process depends upon the particular circumstances present and, consequently, should be made by an agency on a case-by-case basis. Although subchapter S5-3 of FPM Supplement 335-1 generally encourages agencies to provide candidates for selection with information about the job requirements and rating procedures used to evaluate them, subsection (c) of that subchapter provides: Crediting plans and rating procedures for the evaluation of candidates' experiences should not be released as a means of providing information about job requirements if, in the agency's view, such release would undermine the fairness and validity of the selection procedure. In such instances, information may be extracted from crediting plans to meet the requirements of subparagraph a, above. Additionally, FPM Letter 335-15 explains that FPM Supplement 335-1 is intended to allow agencies to provide candidates with information about characteristics to be measured and about the measurement process through "vacancy announcements or through making available crediting plans or related information which will not compromise requirements for security and control." However, the FPM Letter further provides that "(a)n explicit decision is necessary to determine whether crediting plans and related rating information are releasable." Nothing in the language of the Union's proposal would limit the Agency's obligation to comply with a Union request for disclosure of crediting plans where such disclosure would be contrary to the requirements of the FPM. Since the Union's proposal would authorize a blanket disclosure of existing Agency crediting plans without regard to whether release of those plans would undermine the fairness and validity of the selection procedure, we find that the proposal is inconsistent with subchapter S5-3(c) of FPM Supplement 335-1. Next, we must determine whether FPM Supplement 335-1, subchapter S5-3 constitutes a "Government-wide rule or regulation" within the meaning of section 7117(a)(1) of the Statute which would bar negotiations on a conflicting union proposal. In U.S. Customs Service, Washington, D.C., discussed in footnote 2, the Authority found FPM Chapter 335, subchapter 1-4, in which the Office of Personnel Management (OPM) set forth its determination of the policies necessary to ensure that agency promotion procedures are based on merit, to be a Government-wide rule or regulation. /3/ Requirement 3 of subchapter 1-4 provides that "(m)ethods of evaluation for promotion and placement . . . must be consistent with instructions in FPM Supplement 335-1." FPM Supplement 335-1 contains instructions to agencies from OPM concerning the "use" of evaluation procedures in accordance with Requirement 3 of FPM Chapter 335, subchapter 1-4. See FPM Supplement 335-1, subchapter S1-1. Also, Requirement 3 is generally applicable to the Federal civilian work force in that it applies to "all General Schedule and Wage Grade jobs." See FPM Letter 335-15. Accordingly, we find that subchapter S5-3 of FPM Supplement 335-1 constitutes a Government-wide rule or regulation within the meaning of section 7117(a)(1) of the Statute. Since the Union's proposal is inconsistent with subchapter S5-3, it is outside the duty to bargain. /4/ IV. Order Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, the Union's petition for review is dismissed. Issued, Washington, D.C., October 29, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) The Agency withdrew its disapproval of Article 12, Sections 1A, 4A, 6C and 6D; Article 15; Article 16, Sections 2, 3, 8, 10A, 10C, 16A, and 17A; Article 17, Section 13; Article 20, Section 7; and Article 24, Section 6C. The Union withdrew its appeal as to the Agency's disapproval of Article 20, Section 9E; Article 22, Section 9; and Article 24, Sections 6A and 6B. Consequently, these provisions will not be considered further here. (2) In U.S. Customs Service, Region II, the Second Circuit reversed the Authority's holding that the content of the crediting plans at issue in that case was within the duty to bargain. In Department of the Treasury, U.S. Customs Service v. Federal Labor Relations Authority, 762 F.2d 1119 (D.C. Cir. 1985), reversing National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, Washington, D.C., 11 FLRA 247 (1983), the D.C. Circuit reached the same result as the Second Circuit regarding the negotiability of the content of crediting plans but for different reasons. In The Montana Air Chapter of Association of Civilian Technicians and U.S. Department of the Air Force, Montana Air National Guard, 19 FLRA No. 112 (1985), the Authority concurred in the result reached by both courts as to the negotiability of the content of crediting plans, but adopted the rationale of the D.C. Circuit. However, neither the decision of the Second Circuit nor the D.C. Circuit addressed the negotiability of the disclosure of crediting plans. (3) The D.C. Circuit's decision, which reversed the Authority's holding in U.S. Customs Service, Washington D.C. as to the negotiability of the content of crediting plans, did not disagree with the Authority's finding that FPM Chapter 335, subchapter 1-4 is a Government-wide rule or regulation. (4) We note that in National Treasury Employees Union v. U.S. Customs Service, No. 84-5754 (D.C. Cir. Sept. 26, 1986), the D.C. Circuit recently sustained an agency's denial of a union's request under the Freedom of Information Act for disclosure of the agency's crediting plans. In finding that the crediting plans constitute materials "related solely to the internal personnel rules and practices of an agency" which are exempt from disclosure under 5 U.S.C. Section 552(b)(2), the D.C. Circuit agreed with the agency's contention that release of the plans could compromise the agency's evaluation process. The court found, slip op. at 7-8, that "advance knowledge of the plans by applicants would allow and induce at least some of them to embellish -- or perhaps even fabricate -- their backgrounds to suit the appropriate crediting plan."