26:0407(52)CA - Army, HQ, XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC and AFGE Local 1770 -- 1987 FLRAdec CA



[ v26 p407 ]
26:0407(52)CA
The decision of the Authority follows:


 26 FLRA No. 52
 
 DEPARTMENT OF THE ARMY 
 HEADQUARTERS, XVIII AIRBORNE CORPS 
 AND FORT BRAGG, FORT BRAGG, 
 NORTH CAROLINA
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 1770, AFL-CIO
 Charging Party
 
                                            Case Nos. 4-CA-50565 
                                                      4-CA-60103
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This consolidated unfair labor practice case is before the Authority
 on exceptions filed by the Respondent and on a cross-exception filed by
 the General Counsel.  The issue before the Authority is whether the
 Department of the Army, Headquarters, XVIII Airborne Corps and Fort
 Bragg, Fort Bragg, North Carolina (Respondent or Agency) committed an
 unfair labor practice under section 7116(a)(1), (5) and (8) of the
 Federal Service Labor-Management Relations Statute (the Statute) when it
 refused to furnish certain information requested by the Union under
 section 7114(b)(4) of the Statute.  The Union asserted that the
 information was necessary to process a grievance (Case No. 4-CA-50565)
 and to determine whether to file a grievance (Case No. 4-CA-60103).
 
                              II.  Background
 
    The amended consolidated complaint alleged that the Agency refused to
 provide the Union with certain information requested by the Union:  (a)
 in connection with a grievance filed by employee Kenneth Daley,
 concerning his non-selection for the best-qualified list established
 pursuant to Vacancy Announcement No. 24-85 (Case No. 4-CA-50565);  and
 (b) in connection with an investigation to determine whether to file a
 grievance concerning the non-selection of employee James Brown for the
 best-qualified list established pursuant to Vacancy Announcement No.
 285-85 (Case No. 4-CA-60103).  The Respondent admitted that it did not
 furnish the information but denied that its failure to furnish the
 information violated Section 7114(b)(4) or section 7116(a)(1), (5) and
 (8) of the Statute.
 
    During the times pertinent to both cases, the Union and the
 Respondent were parties to a Memorandum of Agreement for the Fort Bragg
 Recruitment and Placement Plan.  The Recruitment Plan established
 policies and procedures for merit staffing from among the best-qualified
 candidates through internal placement and outside hiring.  Among the
 procedures used to evaluate candidates under the Recruitment Plan are
 crediting plans, which are used to rate and rank eligible candidates
 against the knowledges, skills, abilities, and other characteristics
 ("KSAOs") identified for the position to be filled.  The Recruitment
 Plan states that files sufficient to allow reconstruction of competitive
 actions will be maintained for each action for five years;  that the
 files will include certain information including the evaluation methods
 and actual evaluation of candidates;  and that access to a file is
 permissible when an employee or his representative needs information to
 prepare and present a formal grievance relating to a promotion action.
 
                            Case No. 4-CA-50565
 
    The Respondent posted Vacancy Announcement No. 24-85 for a Safety
 Occupational Health Specialist, GS-9, at Fort Bragg.  Employee Kenneth
 Daley applied for the position but was not selected.  He was not rated
 best-qualified nor was he referred for an interview.  Daley and his
 Union representative filed a grievance alleging that Daley was not
 properly evaluated under the crediting plan.  The Union requested the
 following information from the Respondent in order to process the
 grievance:  (1) a copy of the crediting plan used by the panel to grade
 applications under the announcement;  (2) copies of the KSAOs submitted
 by all applicants referred under the announcement;  and (3) a copy of
 any written instructions given to panel members in the announcement.
 The Agency denied the grievance as untimely filed, and denied the
 request for information on the ground that it was not deemed relevant or
 necessary to process the grievance.  The Agency also stated that Daley
 was not referred as a best-qualified candidate because his application
 did not adequately address the requirements of KSAO #2 (physical
 security surveys and inspection).
 
    The Union submitted the grievance to Step 2 and repeated its request
 for information.  The Agency again refused to furnish the crediting
 plan, an unsanitized copy of the KSAOs of all applicants, and written
 instructions to panel members.  However, as a result of a Step 2
 grievance meeting, the Respondent offered to resolve Daley's grievance
 by convening applied under Announcement 24-85.  In the event that the
 new panel concluded that Daley should have been among the best
 qualified, the Agency proposed affording him priority consideration for
 the next appropriate vacancy.  If the panel concluded otherwise, the
 Agency stated that Daley would receive no further entitlement under that
 announcement.  Daley accepted the offer as to the new panel but stated
 that he would not relinquish his statutory right to pursue the
 greivance.  The Agency withdrew the offer and the grievance proceeded to
 Step 3.
 
    At Step 3 the Union requested that the Agency provide a copy of the
 crediting plan and an unsanitized copy of the entire "promotion package
 file" as being relevant to the grievance and necessary to prepare for
 possible arbitration.  The Agency denied the grievance at Step 3 and
 repeated its refusal to supply the information requested.  The grievance
 was submitted to arbitration.  According to the Administrative Law
 Judge's decision, an arbitration hearing date has been deferred pending
 the conclusion in these proceedings.
 
                            Case No. 4-CA-60103
 
    The Respondent posted Vacancy Announcement No. 285-85 for the
 position of Construction Inspector GS-7 at Fort Bragg.  James Brown, a
 unit employee and disabled veteran, applied for the position but was not
 referred for an interview.  Brown sought the Union president's
 assistance regarding the failure to refer him.  In order to determine
 whether a grievance should be filed, the Union president requested from
 the Respondent:  (1) a copy of the crediting plan used for the
 announcement;  (2) a copy of the KSAOs of all applicants referred for
 interviews;  (3) a copy of the written instructions to panel members or
 summary of oral instructions;  and (4) the number of applicants
 interviewed who were disabled veterans.
 
    The Agency responded by advising the Union that the crediting plan
 could not be provided because its release provided an unfair advantage
 to an individual, and some candidates could tailor their KSAOs to fit
 the highest level so as to make it difficult for management to make
 valid distinctions among candidates.  The Agency refused to furnish
 KSAOs of other candidates, as well as written instructions to panel
 members, since it did not appear that they were relevant or necessary to
 process Brown's complaint.  As to information regarding other disabled
 veterans, the Agency stated that veterans preference is not considered
 in promotion procedures, and therefore did not furnish information as to
 the number of applicants interviewed who were disabled veterans.
 
                 III.  Administrative Law Judge's Decision
 
    The Judge stated that under section 7114(b)(4) of the Statute, an
 agency must furnish to a union requested data that is necessary to
 enable a union to perform its representational functions, including
 effective evaluation and processing of grievances.  The Judge held that
 in these cases the crediting plan, as well as the KSAOs and other
 material requested, were necessary and relevant to the proper
 representation by the Union of both Daley and Brown.  The Judge found
 that it would be difficult, if not impossible, for the Union to
 ascertain whether the employees were rated properly without examining
 the plan and comparing the KSAOs of the other applicants.  The Judge
 further found that without the information, the Union cannot ascertain,
 in either case, whether rankings followed the crediting plan and whether
 the process was correctly pursued unless it has the KSAOs of the
 applicants.
 
    The Judge noted that in the Recruitment Plan the Agency had agreed to
 retain a promotion checklist (covering such items as evaluation of
 candidates, test scores, and evaluation methods), and that an employee
 or his representative may have access to the checklist when it is needed
 to prepare a grievance.  The Judge found the data requested by the Union
 on behalf of Daley and Brown was necessary and relevant to the
 processing of a grievance in one instance, or in making a decision
 whether to file a grievance in the other.  The Judge also found that in
 order to fulfill its representational role properly, the Union must have
 the data which was utilized by the Agency raters to make proper
 comparisons and pass judgment on the correctness of the selection
 process.  Finally, the Judge concluded that the release of the data
 requested in both cases was not prohibited by law, and that neither the
 Freedom of Information Act nor FPM Supplement 335-1 prohibits the Agency
 from furnishing the crediting plan and related data.
 
                       IV.  Positions of the Parties
 
    In its exceptions, the Respondent argues that the Judge incorrectly
 held that the release of the data requested is not prohibited by law and
 is consistent with FPM Supplement 335-1.  The General Counsel opposed
 the Respondent's exceptions and cross-excepted to the Judge's failure to
 direct the Respondent to waive applicable time limits for a grievance to
 be filed on behalf of James Brown after the Union's review of the
 requested information.
 
    Subsequently, by letter of January 8, 1987, the Office of Personnel
 Management requested permission to file an amicus brief in support of
 the Respondent.  We granted OPM's request and allowed the parties to the
 case to file responses to OPM's brief.  The General Counsel and the
 Union filed responses.
 
    OPM argues that section 7114(b) does not require disclosure of
 information to a union for the purpose of preparing or pursuing a
 grievance under section 7121 of the Statute, but requires disclosure
 only of information used in the negotiation process itself.  OPM
 acknowledges that the Authority's decisions are to the contrary, but
 urges that they be reconsidered and overruled.  OPM also contends that
 disclosure of the crediting plans in this case is prohibited by section
 7121(c)(4) because:  (1) crediting plans are examination material and
 are therefore part of the examination process excluded from coverage of
 the grievance procedure;  and (2) the grievances in this case concerned
 appointments, and the negotiated grievance procedure can not be used to
 challenge an agency's appointment or certification for appointment.
 Finally, OPM argues that under no circumstances could the crediting
 plans have been lawfully disclosed because FPM Supplement 335-1
 Subchapter S6 and 5 CFR Part 300 forbid their disclosure.
 
    In response to OPM's brief, the General Counsel contends that
 information that is necessary and relevant to the processing of
 grievances is disclosable to the exclusive representative under section
 7114(b)(4) of the Statute.  The General Counsel asserts that a grievance
 adjustment is an integral part of the collective bargaining process and,
 therefore, OPM's argument that a grievance does not involve a matter
 within the scope of collective bargaining is without merit.  Further,
 the General Counsel contends, contrary to OPM, that section 7121(c)(4)
 does not bar the grievance in this case.  Finally, the General Counsel
 asserts that disclosure of the crediting plans is not barred by the FPM
 because even assuming that the FPM has the force and effect of law, the
 FPM itself does not prohibit disclosure of the crediting plans.
 
    The Union also contends that OPM's arguments are without merit,
 noting among other things that a crediting plan is not an examination
 within the meaning of section 7121(c)(4) of the Statute.
 
                               V.  Analysis
 
            A.  Whether the Respondent Was Required by Section
 
                7114(b)(4) of the Statute to Furnish the Requested Data
 
                to the Union
 
    Under section 7114(b)(4) of the Statute, an agency's obligation to
 negotiate in good faith includes the obligation to furnish to the
 exclusive representative, upon request and "to the extent not prohibited
 by law," data which is necessary to enable a union to fulfill its
 representational functions.  We reject OPM's assertion that a union is
 not entitled under section 7114(b)(4) to information in connection with
 preparing or pursuing a grievance, and find, in agreement with the
 Judge's reasoning and conclusion, that the data requested by the Union
 in these cases was necessary to enable it to fulfill its
 representational functions.  See Internal Revenue Service, National
 Office and National Treasury Employees Union, 21 FLRA No. 82 (1986),
 slip op. at 3;  Bureau of Alcohol, Tobacco and Firearms, National Office
 Washington, D.C., 18 FLRA 611 (1985).  We therefore adopt the Judge's
 discussion of this aspect of the consolidated complaint, noting
 particularly the absence of any exceptions by the Respondent on this
 point.
 
    In its exceptions, the Respondent repeats arguments made to the Judge
 that release of the requested data is "prohibited by law." We agree with
 the Judge's reasoning and conclusion that Respondent has not
 demonstrated that release of the data is prohibited by law.  As the
 Judge properly noted, the Freedom of Information Act does not prohibit
 release of data;  rather, it permits agencies to invoke certain
 exceptions to withhold data falling within those exceptions.  /*/ Thus,
 the Freedom of Information Act does not prohibit the release of the data
 within the meaning of section 7114(b)(4) of the Statute.
 
    Similarly, the Federal Personnel Manual does not prohibit the release
 of the data in these cases.  Even if the relevant portion of the FPM is
 a "law" within the meaning of section 7114(b)(4), as the Agency and OPM
 assert, we find that it would not prohibit the release of data in the
 circumstances of these cases.
 
    In National Treasury Employees Union and Department of the Treasury,
 U.S. Customs Service, 23 FLRA No. 91 (1986), we addressed the
 negotiability of a proposal concerning the release and disclosure of
 crediting plans and related rating information.  We found that the
 proposal was outside the duty to bargain because it required the 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 also found, however, that under FPM Supplement
 335-1, subchapter S6, release of crediting plans is authorized where the
 release would not create any unfair advantage to some candidates or
 compromise the utility of the selection process.  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 on a
 case-by-case basis.
 
    In the cases under consideration, we find that disclosure of the
 requested data would not create an unfair advantage to some candidates
 or compromise the utility of the Agency's selection process and,
 therefore, disclosure would not be contrary to the requirements of the
 FPM.  The requests are limited to two specific selection actions and do
 not require the blanket disclosure of all agency crediting plans.
 Compare Department of Treasury, U.S. Customs Service, 23 FLRA No. 91.
 The crediting plans in these cases will be subject to limited disclosure
 to the Union to fulfill its representational duties.  We believe that
 disclosure under these circumstances will not result in an unfair
 advantage to prospective candidates (the subject selection actions have
 been substantially completed) and that disclosure will not destroy the
 integrity of the Agency's selection process.  As the Judge noted, unit
 employees, who may be Union members, have sat on the rating panel and
 have had access to the crediting plan;  and there was no evidence that
 in the past the Union had disseminated the information so as to
 prejudice the selection process.  We therefore find that the release of
 the data requested is not prohibited by law and is not inconsistent with
 the FPM.  Finally, to the extent that OPM alleges that the material
 sought by the Union and the employees' grievances are excluded from
 coverage of negotiated grievance procedures such allegations in essence
 challenge the grievability and arbitrability of the grievances, a matter
 which is not at issue in this case.
 
        B.  Request for Waiver of Time Limits for Filing Grievance
 
    The General Counsel cross-excepted to the Judge's failure to direct
 the Agency to waive all applicable time limits for filing a grievance on
 behalf of James Brown (Case No. 4-CA-60103).  We conclude that a waiver
 of the time limits imposed by the parties' negotiated grievance
 procedure, under these circumstances, would not carry out the purpose of
 the Statute.  The Union was not prevented from filing a timely
 grievance.  If the Union subsequently determined that the employee's
 claim was without merit, it could have withdrawn the grievance.
 Therefore, the General Counsels cross-exception is denied.
 
                              VI.  Conclusion
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, we have reviewed the rulings of Judge
 made at the hearing, find that no prejudicial error was committed, and
 affirm those rulings.  We have considered the Judge's Decision and the
 entire record, including the submissions of the parties and OPM, and
 adopt the Judge's findings and conclusions as discussed above.
 
    Therefore, having found that the Agency was obligated to provide the
 information requested by the Union, we conclude that the Agency violated
 section 7116(a)(1), (5) and (8) in Case Nos. 4-CA-50565 and 4-CA-60103
 when it failed to furnish the Union with necessary information in
 accordance with section 7114(b)(4) of the Statute.  In ordering the
 Agency to furnish the Union with the requested data, we do so with the
 expectation that the Union will use the data solely for the fulfillment
 of its representational function in connection with the two matters
 involved in the instant cases.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and Section 7118 of the Statute, the
 Department of the Army, Headquarters XVIII Airborne Corps and Fort
 Bragg, Fort Bragg, North Carolina shall:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing to furnish the American Federation of
 Government Employees, Local 1770, AFL-CIO, the exclusive representative
 of its employees, with a copy of all necessary and relevant documents
 and materials requested by such representative in connection with the
 processing of a grievance filed by unit employee, Kenneth Daley,
 regarding the selection process for the position of Safety and
 Occupational Health Specialist, GS-018-09, and in connection with the
 filing of a potential grievance on behalf of unit employee James Brown
 regarding the selection process for the position of Construction
 Inspector, GS-809-07.
 
    (b) In any like or related manner interfering with, restraining or
 coercing its employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action:
 
    (a) Upon request, furnish to the American Federation of Government
 Employees, Local 1770, AFL-CIO, the employees' exclusive representative,
 a copy of all necessary and relevant documents and materials requested
 by such representative in connection with the processing of a grievance
 filed by unit employee, Kenneth Daley, regarding the selection process
 for the position of Safety and Occupational Health Specialist,
 GS-018-09.
 
    (b) Upon request, furnish to the American Federation of Government
 Employees, Local 1770, AFL-CIO, the employees' exclusive representative,
 a copy of all necessary and relevant documents and materials requested
 by such representative in connection with the filing of a potential
 grievance on behalf of unit employee James Brown regarding the selection
 process for the position of Construction Inspector, GS-809-07.
 
    (c) Post at its facilities at Fort Bragg, North Carolina, copies of
 the attached Notice on forms to be furnished by the Federal Labor
 Relations Authority.  Upon receipt of such forms, they shall be signed
 by the Chief of Management Employee Relations Division, Civilian
 Personnel Office, Fort Bragg and shall be posted and maintained for 60
 consecutive days thereafter, in conspicuous places, including all
 bulletin boards and other places where notices to employees are
 customarily posted.  Reasonable steps shall be taken to ensure that such
 notices are not altered, defaced or covered by any other material.
 
    (d) Notify the Regional Director, Region IV, Federal Labor Relations
 Authority, in writing, within 30 days from the date of this Order, as to
 what steps have been taken to comply.
 
    Issued, Washington, D.C., March 31, 1987.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE
 
                FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT fail or refuse to furnish, upon request by the American
 Federation of Government Employees, Local 1770, AFL-CIO, the exclusive
 representative of its employees, a copy of all necessary and relevant
 documents and materials requested by such representative in connection
 with the processing of a grievance filed by unit employee, Kenneth
 Daley, regarding the selection process for the position of Safety and
 Occupational Health Specialist, GS-018-09, and in connection with the
 filing of a potential grievance on behalf of unit employee James Brown
 regarding the selection process for the position of Construction
 Inspector, GS-809-07.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL, upon request, furnish to American Federation of Government
 Employees, Local 1770, AFL-CIO, the employees' exclusive representative,
 a copy of all necessary and relevant documents and materials requested
 by such representative in connection with the processing of a grievance
 filed by unit employee, Kenneth Daley, regarding the selection process
 for the position of Safety and Occupational Health Specialist,
 GS-018-09.
 
    WE WILL, upon request, furnish to American Federation of Government
 Employees, Local 1770, AFL-CIO, the employees' exclusive representative
 a copy of all necessary and relevant documents and materials requested
 by such representative in connection with the filing of a potential
 grievance on behalf of unit employee James Brown regarding the selection
 process for the position of Construction Inspector, GS-809-07.
                                       Chief, Management Employee
                                       Relations Division
 
    Dated:  . . . By:  . . . (Signature)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Region IV, Federal Labor Relations Authority, whose address
 is:  1371 Peachtree Street, NE., Suite 736, Atlanta, GA 30367, and whose
 telephone number is:  (404) 347-2324.
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case Nos.: 4-CA-50565
               4-CA-60103
 
 DEPARTMENT OF THE ARMY HEADQUARTERS 
 XVIII AIRBORNE CORPS AND FORT
 BRAGG, FORT BRAGG, NORTH CAROLINA
    Respondent
 
                                    and
 
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 
 LOCAL 1770, AFL-CIO
    Charging Party
 
    Captain Timothy W. Lucas, Esq.
    For the Respondent
 
    Richard S. Jones, Esq.
    For the General Counsel
 
    Reinhard U. Witiak
    For the Charging Party
 
    Before:  WILLIAM NAIMARK
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    Pursuant to an Amended Consolidated Complaint and Notice of Hearing
 issued on December 11, 1985 by the Regional Director for the Federal
 Labor Relations Authority, Region IV, a hearing was held before the
 undersigned on February 25, 1986 at Ft. Bragg, North Carolina.
 
    These cases arose under the Federal Service Labor-Management
 Relations Statute, 5 U.S.C. 7101, et seq. (herein called the Statute).
 Case No. 4-CA-50565 is based on a charge filed on June 10, 1985 by
 American Federation of Government Employees, Local 1770, AFL-CIO (herein
 called the Union) against Department of the Army, Headquarters XVIII
 Airborne Corps and Fort Bragg, Fort Bragg, North Carolina (herein called
 the Respondent).  Case No. 4-CA-60103 is based on a charge filed on
 November 15, 1985 by American Federation of Government Employees, Local
 1770, AFL-CIO against Department of the Army, Headquarters XVIII
 Airborne Corps and Fort Bragg, Fort Bragg, North Carolina.
 
    The Amended Consolidated Complaint alleged, in substance, that:  (a)
 in connection with a grievance filed by Kenneth Daley, an employee,
 concerning his non-selection for the best qualified list in re Vacancy
 Announcement No. 24-85, the Union requested certain information from
 Respondent which it failed and refused to provide (Case No. 4-CA-50565);
  (b) in connection with an investigation to determine whether to file a
 grievance concerning the non-selection of James Brown, an employee, for
 the best qualified list established pursuant to Vacancy Announcement No.
 285-85, the Union requested certain information from Respondent which it
 failed and refused to provide (Case No. 4-CA-60103).  By the failure and
 refusal to furnish the requested information in both cases, it is
 alleged that Respondent refused to comply with Section 7114(b)(4) of the
 Statute, refused to bargain collectively with the Union, and has
 violated Section 7116(a)(1), (5) and (8) of the Statute.
 
    Respondent's Answer to the Amended Consolidated Complaint, filed on
 December 27, 1985, while admitting it did not furnish certain of the
 requested information which forms the subject of these cases, denied
 that such failure or refusal was an abridgement of 7114(b)(4) of the
 Statute or that it violated 7116(a)(1), (5) and (8) thereby.
 
    All parties were represented at the hearing.  Each was afforded full
 opportunity to be heard, to adduce evidence, and to examine as well as
 cross-examine witnesses.  Thereafter, briefs were filed with the
 undersigned which have been duly considered.  /1/
 
    Upon the entire record herein, from my observation of the witnesses
 and their demeanor and from all of the testimony and evidence adduced at
 the hearing, I make the following findings and conclusions:
 
                             Findings of Fact
 
    1.  At all times material herein the Union has been, and still is,
 the exclusive representative of all civilian employees in specified
 tenant units employed at Fort Bragg, North Carolina, excluding all
 management officials, professional employees, guards and supervisors.
 
    2.  At all times material herein, the Union and Respondent have been
 parties to a collective bargaining agreement covering the aforesaid
 employees at Fort Bragg, North Carolina.
 
    3.(a) At all times material herein the Union and Respondent were
 parties to a Memorandum of Agreement For the Fort Bragg Recruitment and
 Placement Plan entered into on May 6, 1982.  The said Recruitment and
 Placement Plan, /2/ which became effective in June, 1982, set forth
 policies and procedures re the recruitment and placement of employees in
 compliance with merit systems principles and requirements imposed by
 Office of Personnel Management (OPM) and Department of the Army.
 
    (b) The Recruitment Plan provides for merit staffing from among the
 best qualified candidates through internal placement and outside hiring.
  Under the Recruitment Plan, Vacancy Announcements are issued,
 application thereunder accepted, and candidate evaluation procedures
 established.  These procedures include the use of a Crediting Plan or
 rating schedule to rate and rank eligible candidates against the
 Knowledge, Skills, Abilities and Other Characteristics (hereinafter
 referred to as KSAO's) identified for the position to be filled.  Credit
 for rating elements of experience, appraisals, training, education,
 awards, etc. is given only in terms of the degree to which they reflect
 that the applicant possesses the KSAO's specified in the job analysis.
 The Crediting Plan specifies how each KSAO is to be measured and the
 point values to each.
 
    (c) Paragraph 4-10 of the Recruitment Plan states that a file
 sufficient to allow re construction of the action will be maintained for
 each competitive action for five years;  that the files will include
 information listed at Appendix A, "Promotion Checklist";  /3/ that
 access is permissible when an employee or his representative needs
 information to prepare and present a formal grievance relating to a
 promotion action.
 
                            Case No. 4-CA-50565
 
    4.  Under its merit promotion program Respondent posted a Vacancy
 Announcement No. 24-85, with an opening date of November 13, 1984, for a
 Safety and Occupational Health Specialist, GS-9 at Fort Bragg.  Employee
 Kenneth L. Daley applied for the position but was not selected.  He was
 neither rated in the field of best qualified nor was he referred for an
 interview.
 
    5.  A grievance dated February 22, 1985 was filed by Daley and Union
 representative Truman Bullard.  Therein it was alleged that Daley was
 not properly evaluated under the Crediting Plan and the Recruitment Plan
 based on his application for the aforesaid position.  Included within
 the submission was a request by the Union for certain information from
 Respondent in order to process the grievance.  The data which the Union
 requested in this submission involved the following:
 
          (a) A copy of the Crediting Plan used by the panel to grade
       applications under the Vacancy Announcement Number 24-85.
 
          (b) Copies of the KSAO's submitted by all applicants referred
       under Vacancy Announcement 24-85.
 
          (c) A copy of any written instructions given to panel members
       in Vacancy Announcement Number 24-85.  /4/
 
    6.(a) Union representative Bullard testified he wanted the Crediting
 Plan, which the panel used to grade applications, to decide if Daley was
 credited and rated properly.  He stated that one could grieve, in merit
 promotion actions, the method used to rate applicants to determine who
 is best qualified.
 
    (b) Bullard testified he sought the KSAO's of the applicants to check
 whether they were rated properly under the Crediting Plan, and whether
 Daley should receive additional points or the other applicant's points
 should be lowered so as to put Daley in the highly qualified group.
 
    (c) Further testimony by Bullard reflects that he wanted the written
 instructions given to the panel members to see how they applied X118 of
 the Handbook in respect to Daley's experience.  Under X118 experience
 outside civil service is deemed credible experience.  Bullard stated he
 wanted to note how the panel applied that provision to Daley's
 experience as Safety Coordinator for the Union as well as his seven or
 eight years working with the Local Safety Office of the agency.
 
    7.  By letter dated February 27, 1985 /5/ Respondent denied Daley's
 grievance as being untimely filed.  The request for information was
 denied on the ground that it was not deemed relevant or necessary to
 process the grievance.  The letter also stated that Daley was not
 referred as a Best Qualified candidate because his "application did not
 adequately address the requirements of KSA #2 (physical security surveys
 and inspection)." /6/
 
    8.  Union representative Bullard and Daley submitted the grievance in
 Step 2 by letter dated March 27, 1985.  At the same time a request was
 made therein for the information initially requested so as to further
 process the grievance.
 
    9.  In a letter dated April 8, 1985 Respondent repeated its refusal
 to furnish the Crediting Plan, an unsanitized copy of the KSAO's of all
 applicants, /7/ written instructions to panel members, and the names of
 the members.  Respondent further advised Daley that the supervisory
 appraisal of KSAO had no impact on his score;  that the experience,
 training, awards, and appraisal are considered as a whole in d:ciding
 the overall worth of the applicant's background.
 
    10.  As a result of a Step 2 grievance meeting held on April 16,
 1985, Respondent offered to resolve Daley's grievance.  In a letter
 dated April 19 Respondent advised Daley and Bullard that a new merit
 promotion panel would be convened to evaluate all candidates who applied
 under Announcement 24-85.  In the event that the new panel concludes
 Daley should have been among the best qualified, Respondent proposed
 affording him priority consideration for the next appropriate vacancy.
 If the panel concludes otherwise, Daley would receive no further
 entitlement under that Announcement.
 
    11.  In a reply letter dated April 29 Daley accepted the offer as to
 the new panel, but he qualified his acceptance in other respects.
 Further, Daley stated he would not relinquish his statutory right to
 pursue the grievance.
 
    12.  By letter dated May 2 Respondent advised Daley and his
 representative that since Daley changed his mind re the settlement, the
 offer to convene a new panel was withdrawn, and the grievance at Step 2
 was denied.
 
    13.  In a letter dated May 7 Daley disputed that he changed his mind
 re the settlement of the grievance.  In the same letter the Union
 reiterated its request for the Crediting Plan, KSAO's and written
 instructions to panel members.  /8/
 
    14.  Under date of May 13 Daley and Bullard submitted the grievance
 at Step 3.  At the same time a request was made that Respondent provide
 an unsanitized copy of the entire promotion package file as being
 relevant to the grievance and necessary to prepare for possible
 arbitration.  Request was also made for the Crediting Plan.
 
    15.  Colonel William J. Richardson, Jr. replied on May 22 to the Step
 3 grievance submitted by Daley and Bullard.  He stated he supported the
 earlier action taken by the grievance official and denied the grievance
 at Step 3.  Richardson also reiterated the agency's position re its
 refusal to supply the information requested.
 
    16.  Daley's grievance was submitted to arbitration.  A hearing date
 has been deferred pending the conclusion of the present proceeding.
 
    17.  Record facts show that the promotion file, which was requested
 on May 13 by Daley and Bullard, contains:  (a) KSAOs, (b) instructions
 to the Panel, (c) list of applicants who were disabled, (d) individual
 rating sheet, (e) applications of each person under the merit promotion
 plan, (f) roster showing names of all candidates.
 
    18.  The record reflects that Respondent refused to furnish this
 promotion package as being not necessary or relevant since the decision
 is based on what an applicant writes in the KSA's and comparing that to
 the Crediting Plan.  Further, management felt that if a grievant or
 candidate has all candidate's applications he can "max" the particular
 level or the Crediting Plan (4 point level), and through reconstruction
 he could build a better application in his next submission.
 
                            Case No. 4-CA-60103
 
    19.  Respondent published Vacancy Announcement No. 285-85 with the
 opening and closing dates of September 6 and September 16 respectively.
 This was done under the Merit Promotion Program for the position of
 Construction Inspector GS-7 at Fort Bragg, North Carolina.
 
    20.  James Brown, a bargaining unit employee and a disabled veteran,
 filed an application for the said position.  He was not, however,
 referred for an interview.  Brown spoke to Reinhard Witiak, Union
 President, re the failure to refer him and sought the Union's
 assistance.  In order to determine whether a grievance should be filed
 Witiak wrote Respondent on October 19, 1986 and requested:  (a) copy of
 the Crediting Plan utilized for this Vacancy Announcement, (b) copy of
 the KSAO's of all applicants referred for interview, (c) copy of the
 written instructions to panel members or summary of oral instructions,
 (d) number of applicants interviewed who were disabled veterans.  /9/
 
    21.  Witiak testified that he desired the requested information for
 the following reasons:
 
          (a) The Crediting Plan was sought to compare it with Brown's
       application and see where he did reach proper points to be
       referred.  Also, it would reveal Brown was not evaluated properly
       against the Crediting Plan.
 
          (b) The KSAO's were wanted to compare the applications and
       determine if there was any meaningful differences among them.
       Still needed the Crediting Plan to make the comparison and rate
       Brown against it.
 
          (c) The written instructions to panel members were needed to
       check if any instructions were given which caused a deviation from
       the Plan - give a person credit for something that did not appear
       in the Crediting Plan, or not pay attention to experience an
       applicant said he obtained from a certain source.
 
          (d) The information re disabled veterans was sought since Brown
       believed he was not being credited properly for his disability
       within the merit promotion system.
 
    22.  In a letter dated October 29, 1985 Respondent advised Witiak
 that the Crediting Plan could not be provided because its release
 provided an unfair advantage to an individual, and some candidates could
 tailor their KSAO's to fit the highest level.  This would make it
 difficult for management to make valid distinctions among candidates.
 Management refused to furnish KSAO's of other candidates, as well as
 written instructions to panel members, since it did not appear they were
 relevant or necessary to process Brown's complaint.  As to information
 re other disabled veterans, the letter stated that veterans preference
 is not considered in promotion procedures, and the data requested in
 this regard was not furnished.
 
    23.  In filling a competitive service position under the merit
 promotion system, Respondent must initially perform a job analysis.  By
 so doing it can be determined which KSA's are needed to undertake the
 requisite duties for the position and to differentiate a superior
 candidate from an average one.  This is necessary to select the best
 qualified candidate.  In conducting a job analysis, Management looks at
 the job description, qualifications, standards and organizational chart.
  It checks to see if there is a Crediting Plan developed previously
 which mentions KSA's that appear necessary.  All this data is given to
 an expert who conducts an on site job analysis.  KSA's are added or
 deleted, and those selected are used to develop a Crediting Plan as well
 as put on job announcements to candidates.  A panel of subject matter
 experts do the rating and ranking, which is the evaluation process that
 rates the candidate against the Crediting Plan.  /10/
 
    24.  A Crediting Plan /11/ is a rating guide or plan developed to
 rate candidates for promotion against their KSAO's.  It has four point
 levels (1, 2, 3, 4) of ability applicable to each knowledge, skill and
 ability which are specified as requisite for the particular position.
 The Crediting Plan contains examples at each level of ability as to what
 tasks and actions the position holder would be expected to undertake.
 It may be modified for each vacancy announcement beforehand, but the
 Crediting Plan is not changed after the Announcement is issued.
 
                                Conclusions
 
    It is contended by General Counsel that the data requested in Case
 No. 4-CA-50565 is relevant and necessary to continue processing the
 grievance of Kenneth Daley based on his non-referral for the position of
 Safety and Health Occupational Health Specialist, GS-9, (Vacancy
 Announcement 24-85).  The information sought, and refused by Respondent,
 in said case consisted of:  (a) an unsanitized copy of the crediting
 plan in connection with that Announcement, (b) a copy of the KSAO's of
 all applicants referred for interview pursuant hereto, (c) a copy of the
 attendant written instructions given to the rating panel members, (d)
 the entire promotion package file for that Vacancy Announcement.
 
    In respect to Case No. 4-CA-60103, information sought was deemed
 relevant and necessary by the Union in its determination whether to file
 a grievance on behalf of James Brown for not being placed on a best
 qualified list in connection with Vacancy Announcement No. 285-85 --
 Construction Inspector, GS-7 position.  The data sought, and refused by
 Respondent, in this instance, consisted of:  (a) an unsanitized copy of
 the Crediting Plan in connection with that Announcement, (b) a copy of
 the KSAO's of all applicants referred for interview pursuant thereto,
 (c) a copy of the written instructions given to the rating panel
 members, (d) a listing of all applicants in connection with that
 Announcement who are disabled veterans.
 
    Respondent contends it has no duty to furnish the requested data in
 both cases herein.  It bases this contention on two premises:  (1)
 disclosure of the crediting plan and related data is prohibited by law,
 (2) the data sought by the Union is not relevant nor necessary for full
 and proper discussion of the grievances or issues involving Daley or
 Brown.
 
    As part of an agency's obligation to bargain with a union in good
 faith it is required, under certain conditions, to furnish requested
 data to the bargaining representative.  This duty is expressed in
 Section 7114(b) of the Statute which provides as follows:
 
                     Representation rights and duties
 
                       * * *
 
 
          (b) The duty of an agency and an exclusive representative to
       negotiate in good faith under subsection (a) of this section shall
       include the obligation --
 
                       * * *
 
 
          (4) in the case of an agency, to furnish to the exclusive
       representative involved, or its authorized 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, council, or
       training provided for management officials or supervisors,
       relating to collective bargaining . . .  (Emphasis supplied)
 
    In affirming that the data must be necessary to enable a union to
 fulfill its representational functions, the Authority has held that this
 would include the effective evaluation and processing of grievances.
 U.S. Customs Service, Region VII, Los Angeles, California, 10 FLRA No.
 47;  Veterans Administration Regional Office, Denver, Colorado, 7 FLRA
 No. 100.  However, a mere assertion that the information is needed to
 process a grievance does not automatically oblige the agency to furnish
 it.  The duty to supply the data rest on the circumstances of each case.
  U.S. Equal Employment Opportunity Commission, Washington, D.C., 20 FLRA
 No. 37.  See Department of the Treasury, United States Customs Service,
 Region IV, Miami, Florida, 18 FLRA No. 53.
 
    Turning to the cases at bar, I am satisfied that the Crediting Plan,
 as well as the KSAO's and other material requested, are necessary and
 relevant to the proper representation by the Union of both Daley and
 Brown.  It would be difficult, if not impossible, for the Union to
 ascertain whether the employees were rated properly without examining
 that Plan and comparing the KSAO's of the other applicant.  The
 bargaining representative cannot tell, in respect to either employee,
 whether rankings followed the Crediting Plan and whether the process was
 correctly pursued unless it has the KSAO's of the applicants.  /12/ Note
 is taken that in the Fort Bragg Recruitment Plan it is provided that the
 agency agreed to retain a Promotion Checklist (covering such items as
 evaluation of candidates, test scores, evaluation methods), and that an
 employee or his representative may have access to such Checklist when it
 is needed to prepare a grievance.  Further, the Authority has recognized
 that a Union needs certain data contained in a promotion package in
 connection with an employee's grievance over his non-selection for a
 position.  This included evaluation and rating forms for applicants on
 the qualified, highly qualified and best qualified lists.  See Bureau of
 Alcohol, Tobacco and Firearms National Office, Washington, D.C., supra.
 /13/ To the same effect see U.S. Customs Service, Region VII, Los
 Angeles, California, 10 FLRA No. 47, where the Authority determined that
 documents used in the promotion process by the ranking panel must be
 furnished the union who filed a grievance alleging an employee was
 improperly denied a promotion.
 
    In sum, I conclude that the data requested by the Union on behalf of
 Daley and Brown in the cases at bar is necessary and relevant to the
 processing of a grievance in one instance, or in making a decision
 whether to file one in the other.  To make proper comparisons and pass
 judgment on the correctness of the selection process the Union must have
 data which was utilized by the agency's raters.  Otherwise, it can
 scarcely be concluded that the bargaining representative is in a
 position to fulfill its role properly.  /14/
 
    Respondent insists it has no obligation to supply the requested data
 in the instant cases since 1716(b)(4) allows for disclosure only when
 the same does not conflict with other laws.  The agency contends that
 several "laws" forbid such disclosure herein, i.e., the Freedom of
 Information Act, Sections 552(b)(2) and (5);  FPM Supplement 335-1 and
 FPM Letter 335-15;  and 5 U.S.C. 2301 et. seq.
 
    The Freedom of Information Act /15/ (FOIA) was designed to embody "a
 general philosophy of full agency disclosure unless information is
 exempted under clearly delineated statutory language, and to provide a
 court procedure by which citizens and the press may obtain information
 wrongfully withheld." See Crooker v. Bureau of Alcohol, Tobacco and
 Firearms, 670 F.2d 1051 (1981).  There are nine exemptions to disclosure
 under Section 552 of FOIA.  Two of these are relied upon by Respondent
 in asserting that FOIA prohibits the furnishing of the crediting plan as
 well as the other data requested in Case No. 4-CA-50565 and 4-CA-60103.
 Respondent refers to exemptions (b)(2) and (5) under 5 U.S.C. 552.
 Exemption (b)(2) covers materials "related solely to the internal
 personnel rules and practices of an agency." Exemption (b)(5) covers
 "inter-agency or intra-agency memorandums or letters which would not be
 available by law to a party other than an agency in litigation with the
 agency."
 
    As support for its contention that the FOIA prohibits disclosing the
 data involved in the cases at bar.  Respondent cites National Treasury
 Employees Union v. United States Customs Service, 602 F. Supp. 469
 (D.D.C. 1984).  It was determined therein that Exemption (b)(2), which
 exempted internal personnel rules and practices of an agency, also
 included crediting plans that were internal evaluation procedures.
 Thus, a withholding by the agency of such documents used in a merit
 promotion program was proper under said exemption, and the union was not
 entitled to obtain them under the FOIA.
 
    The undersigned, however, is not persuaded that either the statutory
 language or the cited case forbids the release of the crediting plan and
 the relevant data involved in the cases at bar.  An "exemption" from
 disclosure, as set forth in 5 U.S.C. 552(b)(2) and (5) of the FOIA, is
 not tantamount to "prohibition" from disclosure.  As indicated in the
 U.S. Customs Service case, supra, the pertinent sections of FOIA exempts
 the material from mandatory disclosure.  It does not prohibit the
 release of the crediting plan.  Note is also taken of the Authority's
 views as expressed in U.S. Equal Employment Opportunity Commission,
 Washington, D.C., supra.  In referring to the fact that information
 sought under 7114(b)(4) was similar to data sought under provisions of
 FOIA, the Authority stated:
 
          " . . . disclosure of individually identifiable records is not
       prohibited in all circumstances.  The information is often
       disclosed to the public under the provisions of the FOIA, in a
       sanitized or non-sanitized form, after the agency or the court
       makes a determination that such disclosure would not result in a
       clearly unwarranted version of the individual's privacy . . . "
       /16/
 
    The foregoing convinces me that the FOIA does not mandate that
 information such as the crediting plan not be released, and that
 furnishing of same would not be violative of the Statute.  It is
 seemingly permissive as to such release, dependent upon the agency's
 determination regarding the propriety of doing so.  I do not construe
 552(b)(2) and (5) of the FOIA as prohibiting the furnishing of the data
 requested herein.  Thus, in this respect, Respondent has not shown that,
 under 7114(b)(4), it was prohibited by law from doing so.
 
    It is also contended by Respondent that FPM Supplement 335-1, along
 with FPM Letter 335-15, is a "law" which prohibits disclosure of the
 data requested in the instant cases.  Thus, under 7114(b)(4) of the
 Statute, no obligation is imposed to furnish the crediting plan and
 other requested information to the Union.
 
    In making the foregoing argument, Respondent adverts to the fact that
 Section 7117 of the Statute makes the duty to bargain limited by Federal
 law or any government-wide rules or regulations.  Thus, it is urged, the
 term "law" in 7114(b)(4) must be interpreted so as to equate it with
 such rules or regulations.  While I agree that FPM Supplement 335-1 is a
 government-wide rule or regulation, /17/ the contention that it is also
 a "law" is not persuasive.  Rules and regulations are devised to
 implement laws and are not themselves statutory enactments.  While
 legislative rules often have the force and effect of law as an extension
 of the legislative process, /18/ there is no showing such was intended
 in respect to the Federal Personnel Manual.  Further, a distinction
 could be made, in any event, between a regulation which has the "effect"
 of law and the law itself.  Moreover, limitation of a duty to bargain
 under 7117 of the Statute by Federal law or government-wide rules or
 regulations does not call for a conclusion that the terms are
 synonymous.  In truth, the fact that both are mentioned would serve to
 highlight the difference between "law" and "regulation".  Considerable
 support for this conclusion may be found in the dictum set forth in
 Mobil Oil Corp. v. F.T.C., 406 F. Supp. 305, 310, where the District
 Court, S.D.N.Y. stated " . . . neither regulations nor guidelines
 promulgated by a federal agency, can override the language and purpose
 of a statutory enactment." While the agency may not be obliged to
 bargain re union proposals involving FPM 335, /19/ I do not believe
 that, a fortiorari, it is relieved from its obligation imposed under
 7114(b) of the Statute to furnish data to the Union involving merit
 promotions.  A union may have need of such information for other
 reasons, such as filing grievances re the methods or procedures followed
 in making promotions, and nevertheless not be entitled to bargain over
 proposals concerning crediting plans and the like.  Accordingly, I
 conclude that FPM Supplement 335-1 does not constitute a law which
 prohibits Respondent from furnishing the crediting plan and related data
 to the Union herein.  /20/
 
    Further, the Authority has already held that the release of crediting
 plans was not inconsistent with FPM Supplement 335-1, subchapter 6 in
 National Treasury Employees Union and NTEU Chapters 153, 161 and 183 and
 U.S. Customs Service, Region II, 11 FLRA No. 47.  It concluded that the
 said regulation does not bar the release of the crediting plan.  It did
 not appear that a disclosure thereof would create any unfair advantage
 to some candidates or compromise the selection process.  To the same
 extent in the cases at bar, a disclosure to all applicants for the
 Vacancy Announcement No. 24-85 in Case No. 4-CA-50565, as well as all
 applicants for the Vacancy Announcement No. 285-85 in Case No.
 4-CA-60103, would create no unfair advantage to any candidate.  The
 respective vacancy positions involve merit promotions re unit employees
 so that no problem is presented concerning non-bargaining unit
 employees.  While Respondent insists applications could be tailored, or
 falsified, to fit the requirements set forth in the Crediting Plan, it
 does not appear that such falsifications were customary or presented any
 difficulty in the past.  /21/ There was no evidence, moreover, that the
 Union had disseminated the information so as to prejudice the selection
 process.  In addition, unit employees -- who may be Union members -- sit
 on the rating panel and they have access to the Crediting Plan.
 
    Based on the foregoing, I conclude that the data requested in both
 cases, as more specifically set forth below, was necessary and relevant
 to the processing of greivances on behalf of Daley in Case No.
 4-CA-50565 and Brown in Case No. 4-CA-60103;  that the data was not
 prohibited by law;  and that to furnish the data requested would not be
 inconsistent with, or run counter to, FPM Supplement 335-1.
 
    Accordingly, I also conclude Respondent was obliged, under 7114(b)(4)
 of the Statute, to have furnished the Union herein the following:
 
    (1) In respect to Vacancy Announcement No. 24-85:
 
          (a) a copy of the Crediting Plan used by the panel to grade
       applications thereunder;
 
          (b) copies of the KSAO's submitted by all applicants referred
       thereunder;
 
          (c) a copy of written instructions given to the rating panel
       member.
 
          (d) the entire promotion package file for such Vacancy
       Announcement.
 
    (2) In respect to Vacancy Announcement No. 285-85:
 
          (a) a copy of the Crediting Plan used by the panel to grade
       applications thereunder;
 
          (b) copies of the KSAO's submitted by all applicants referred
       thereunder;
 
          (c) a copy of the written instructions given to the rating
       panel;
 
          (d) a listing of all applicants who are disabled veterans.
 
    Having failed to abide by the Union's requests in Case Nos.
 4-CA-50565 and 4-CA-60103, I conclude that Respondent violated Sections
 7116(a)(1), (5) and (8) of the Statute.  Accordingly, it is recommended
 that the Authority issue the following:
 
                                   ORDER
 
    Pursuant to Section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and Section 7118 of the Statute, the
 Authority hereby orders that Department of the Army, Headquarters XVIII
 Airborne Corps and Fort Bragg, North Carolina shall:
 
    1.  Cease and desist from:
 
          (a) Failing and refusing to furnish, upon request by American
       Federation of Government, Local 1770, AFL-CIO, the exclusive
       representative of its employees, a copy of all necessary and
       relevant documents and materials requested by such representative
       in connection with the processing of a grievance filed by unit
       employee, Kenneth Daley, regarding the selection process for the
       position of Safety and Occupational Health Specialist, GS-018-09,
       and in connection with the filing of a potential grievance on
       behalf of unit employee James Brown regarding the selection
       process for the position of Construction Inspector, GS-809-07.
 
          (b) In any like or related manner interfering with, restraining
       or coercing its employees in the exercise of their rights assured
       by the Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action:
 
          (a) Upon request, furnish to the American Federation of
       Government Employees, Local 1770, AFL-CIO, the employees'
       exclusive representative, a copy of all necessary and relevant
       documents and materials requested by such representative in
       connection with the processing of a grievance filed by unit
       employee, Kenneth Daley, regarding the selection process for the
       position of Safety and Occupational Health Specialist, GS-018-09,
       and in connection with the filing of a potential grievance on
       behalf of unit employee James Brown regarding the selection
       process for the position of Construction Inspector, GS-809-07.
 
          (b) Post at its facilities at Fort Bragg, North Carolina,
       copies of the attached Notice on forms to be furnished by the
       Federal Labor Relations Authority.  Upon receipt of such forms,
       they shall be signed by the duly authorized designee, and shall be
       posted and maintained by him for 60 consecutive days thereafter,
       in conspicuous places, including all bulletin boards and other
       places where notices to employees are customarily posted.
       Reasonable steps shall be taken to insure that such notices are
       not altered, defaced or covered by any other material.
 
          (c) Notify the Regional Director, Region IV, Federal Labor
       Relations Authority, in writing, within 30 days from the date of
       this Order, as to what steps have been taken to comply herewith.
 
                                       /s/ WILLIAM NAIMARK
                                       Administrative Law Judge
 
    Dated:  August 12, 1986
    Washington, D.C.
 
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (*) In National Treasury Employees Union v. U.S. Customs Service, 802
 F.2d 525 (D.C. Cir. 1986), the Court of Appeals held that an agency's
 crediting plans were exempt from disclosure under 5 U.S.C. Section
 552(b)(2) because release of the plans created a significant risk that
 the agency's evaluation program would be seriously compromised.  That
 case, however, does not equate to a holding that release of crediting
 plans is prohibited by law.
 
    (1) Subsequent to the hearing General Counsel filed a Motion to
 Correct the Transcript.  No objections having been filed thereto, and it
 appearing that the proposed corrections are proper, the Motion is
 granted as requested.
 
    (2) G.C. Exhibit No. 3 - hereinafter called the Recruitment Plan.
 
    (3) This checklist in the Recruitment Plan lists 13 items for the
 promotion record of the employee.  It covers such matters as (1)
 qualification standard, (2) evaluation methods to obtain ratings, (3)
 evaluation of candidates (including supervisory appraisals, test
 scores), (4) names of applicants and candidates, (5) record of
 consideration of employees entitled to special consideration for
 repromotion, (6) whether promotion was under competitive procedures and
 that the employee met the standards and other requirements.
 
    (4) While other information was requested by the Union, the alleged
 violation in this case only concerns Respondent's refusal to furnish
 these three items as well as a promotion package subsequently requested.
 
    (5) The Step 1 grievance was again denied on March 21, 1985 after
 Daley resubmitted his grievance on March 4, 1985.
 
    (6) Unless otherwise inidcated, all dates hereinafter mentioned occur
 in 1985.
 
    (7) It did furnish a copy of the conversion table used to correct the
 total run score, as well as a sanitized copy of the selectee's KSAO's.
 
    (8) This request was again denied in a May 14 letter to Daley and
 Bullard from management on the same grounds as stated previously.
 
    (9) The Union requested other data but the alleged violation in this
 case only concerns the refusal to furnish these four items.
 
    (10) There are usually 1-3 members of the rating panel who are unit
 employees and sit on the panels as subject matter experts.
 
    (11) While unwilling to produce the Crediting Plans involved in Cases
 4-CA-50565 and 4-CA-60103 as requested by the Union herein, the
 Respondent did submit them to the undersigned for in camera inspection.
 They have been examined and a general description presented by the
 undersigned in setting forth the facts in the instant matters.  The said
 Crediting Plans are being forwarded under separate cover to the
 Authority for its use in connection with the decision to be rendered.
 
    (12) As stated by General Counsel, the KSAO of the selectee - which
 was supplied in Case No. 4-CA-50565 - does not suffice since the Union
 cannot grieve the selection itself but must grieve the process used by
 the agency in certifying candidates.
 
    (13) Certain items as names of unsuccessful applicants, personal
 identifiers, foreign language skills, and salary history, were not shown
 to be necessary to process that grievance.
 
    (14) With respect to the instructions issued to the rating panel,
 which was requested in both cases by the Union, it is noted that the
 panel members were unit employees.  Thus, I would not conclude that such
 instructions -- which may well bear on the rating process and use of the
 Crediting Plan -- constitute guidance, advice, council, or training for
 management officials under 7114(b)(4)(C) of the Statute.
 
    (15) Pub. L. No. 89-487, 80 Stat. 236 (copied as amended at 5 U.S.C.
 552 (1982)).
 
    (16) In the citing case Respondent contended that the Privacy Act
 prohibited its furnishing performance appraisals and other related data.
  The quoted statement is in regard thereto.
 
    (17) In National Treasury Employees Union and Department of the
 Treasury, U.S. Customs Service, Washington, D.C., 11 FLRA No. 52, the
 Authority concluded that FPM 355, 1-4, regarding merit promotion
 requirements is a government-wide rule or regulation.
 
    (18) Chrysler Corp. v. Brown, 441 U.S. 281, 304 (1979);
 Administrative Law and Practice, Charles H. Koch, Jr. pages 170, 171
 (1985).
 
    (19) The Authority so held in the negotiability decision, NTEU and
 Department of the Treasury, U.S. Customs, Washington, D.C., supra.
 
    (20) Assuming arguendo that FPM Supplement 335-1 constitutes a law, I
 would not conclude that Respondent is exculpated from its duty under
 7114(b)(4) to furnish the data herein.  Under 7114(b)(4) an agency may
 escape that duty when prohibited by law from supplying the requested
 information.  But a reading of the foregoing regulation makes it
 apparent that it rests with the agency to determine whether such
 material should be released.  There is no absolute prohibition re the
 release of examination materials by the agency.  See subchapter S6(c).
 
    (21) There was some testimony that employee applications could not be
 verified by Respondent.  However, no probative evidence to substantiate
 this conclusion was introduced at the hearing.  Further, I am not
 convinced that verification by management of employment background or
 experience could not be accomplished in respect to vital concerns.
 
 
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE
 
            FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT fail or refuse to furnish, upon request by the American
 Federation of Government Employees, Local 1770, AFL-CIO, the exclusive
 representative of its employees, a copy of all necessary and relevant
 documents and materials requested by such representative in connection
 with the processing of a grievance filed by unit employee, Kenneth
 Daley, regarding the selection process for the position of Safety and
 Occupational Health Specialist, GS-018-09, and in connection with the
 filing of a potential grievance on behalf of unit employee James Brown
 regarding the selection process for the position of Construction
 Inspector, GS-809-07.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL, upon request, furnish t