26:0630(79)CA - Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine and NAAE Branch #15 -- 1987 FLRAdec CA



[ v26 p630 ]
26:0630(79)CA
The decision of the Authority follows:


 26 FLRA No. 79
 
 UNITED STATES DEPARTMENT OF 
 AGRICULTURE, ANIMAL AND PLANT 
 HEALTH INSPECTION SERVICE 
 PLANT PROTECTION AND QUARANTINE
 Respondent
 
 and
 
 NATIONAL ASSOCIATION OF AGRICULTURE 
 EMPLOYEES, BRANCH #15
 Charging Party
 
                                            Case No. 6-CA-50121
 
                            DECISION AND ORDER
 
    I.  Statement of the Case
 
    This unfair labor practice case is before the Authority on exceptions
 filed by the Respondent to the attached Decision of the Administrative
 Law Judge.  The Charging Party (the Union) filed an opposition to the
 exceptions.  /1/ The issue is whether the Respondent violated section
 7116(a)(1), (5) and (8) of the Federal Service Labor-Management
 Relations Statute (the Statute), by refusing to furnish the Union,
 pursuant to section 7114(b)(4), the "rating scheme" utilized by a
 Promotion Review Panel.  In agreement with the Judge, we find that the
 Respondent did commit an unfair labor practice as alleged.
 
    II.  Facts
 
    The Union is the exclusive representative of a nationwide unit of the
 Respondent's employees, including Plant Protection and Quarantine
 Officers.  The Respondent and the Union are parties to a collective
 bargaining agreement.  Article XII of the agreement, entitled
 Promotions, provides at Section 1 that the Respondent must consult with
 the Union on the establishment and any revision of the criteria used in
 the selection or promotion process.  Additionally, under Article XII,
 Section 2, the Union has the right to have a participating
 representative at Promotion Review Panel meetings which are held to
 identify and rank highly qualified candidates for promotion to
 supervisory or specialist positions GS-12 and below for which members of
 the bargaining unit are eligible and more than ten applicants are being
 considered.
 
    On September 18, 1984, a Union member participated in a Promotion
 Review Panel which ranked applicants for a GS-11 Supervisory Plant
 Protection and Quarantine Officer (crew leader) position.  On September
 19, 1984, the Panel submitted its list of best qualified applicants to
 the selecting official.  The vacant position was subsequently filled
 without using the Panel's best qualified list by reassigning a
 supervisor into the position.  Thereafter, the Union notified the
 Respondent of its concern that the Promotion Panel may have failed to
 fulfill the requirements of Article XII, Sections 1 and 2 of the
 parties' agreement;  informed the Respondent that the Union was
 considering filing a grievance;  and requested a copy of all materials
 used by the Panel, including the "rating scheme" for the position.  The
 Respondent requested more specific information from the Union.
 
    The Union filed a grievance alleging that the Respondent had
 unilaterally structured the rating scheme in such a way as to
 effectively change the evaluation criteria established for the position
 as set forth in the vacancy announcement.  The Respondent informed the
 Union that its request for all materials used by the Panel was not
 reasonable and, specifically, contending that "(T)he release of the
 rating scheme (crediting plan) is considered confidential material and
 not releasable." However, the Respondent did offer to give the Union
 access to the information, for review but not for duplication, during
 the Union representative's next participation in a Promotion Review
 Panel proceeding.
 
    III.  Administrative Law Judge's Decision
 
    The Judge concluded that the Respondent violated section 7116(a)(1),
 (5) and (8) of the Statute by failing to furnish the Union with the
 rating scheme in connection with the processing of its grievance.  In
 reaching that conclusion, the Judge found that the rating scheme was
 necessary to the Union in determining, for the purpose of the grievance,
 whether there were differences between the rating scheme and the
 evaluation criteria set forth in the vacancy announcement that would
 establish whether there was a violation of the collective bargaining
 agreement.  The Judge also found that since the Respondent had not shown
 that disclosure of the rating scheme would create an unfair advantage
 for any candidate or compromise the selection process, Federal Personnel
 Manual (FPM) Supplement 335-1, subchapter S6 did not prohibit release of
 the rating scheme to the Union.  The Judge noted that the Union was not
 seeking to negotiate over the rating plan, but merely sought a copy of
 the plan for comparison purposes.  Additionally, he found that the offer
 to see the rating scheme at some future Promotion Panel meeting did not
 satisfy the section 7114(b)(4) obligation.  He also found that the
 matter was not rendered moot by the fact that the position was filled by
 reassignment since the Union's grievance concerns the manner in which
 the Respondent constructed its vacancy announcements and not the filling
 of the vacancy.
 
    IV.  Positions of the Parties
 
    The Respondent disagrees with the Judge's conclusion that there was
 no showing that the disclosure of the rating plan would create any
 unfair advantage.  The Respondent maintains that the testimony was
 sufficient to show that the release of such information would create an
 unfair advantage and undermine the usefulness of the evaluation
 procedure.  The Respondent argues that since FPM Supplement 335-1,
 subchapter S6, a Government-wide regulation, precludes release of
 information is such information were to provide an unfair advantage, the
 information sought was not subject to section 7114(b)(4).  Additionally,
 the Respondent argues for the first time in its exceptions that as the
 information sought pertains to a supervisory position excluded from the
 bargaining unit, the information is not subject to section 7114(b)(4).
 In its other exceptions, the Respondent merely repeats arguements which
 were raised and addressed in the proceeding before the Judge pertaining
 to the negotiability of the rating scheme criteria, the Union's
 entitlement and need for such information, and the fact that the
 information was offered for review at a future meeting.
 
    In its opposition to Respondent's exceptions, the Union fully
 supports the rationale and decision of the Judge.  Further, the Union
 urges the Authority to reject the Respondent's speculation that job
 opportunities would have to be adjusted significantly as a result of
 disclosure and that Union members applying for future vacancies will be
 compelled to lie or be less than candid with the Respondent about their
 qualifications.
 
    V.  Analysis
 
    The issue is whether the Respondent was required under section
 7114(b)(4) of the Statute to furnish the Union with a copy of the rating
 scheme utilized by the Promotion Panel where the information was
 requested in order to determine whether to file a grievance under the
 parties' negotiated agreement.
 
        A.  The Rating Scheme Is Necessary for the Union To Fulfill
 
                Its Representational Functions
 
    It is well established that an agency is obligated, upon request, to
 furnish the exclusive representative of its employees with information
 that is necessary for the union to effectively carry out is
 representational obligations, which includes the processing of employee
 grievances.  U.S. Customs Service, Region VII, Los Angeles, California,
 10 FLRA 251 (1982);  Social Security Administration, 15 FLRA 969 (1984);
  Bureau of Alcohol, Tobacco and Firearms, National Office, Washington,
 D.C., 18 FLRA 611 (1985);  Internal Revenue Service, National Office, 21
 FLRA No. 82 (1986).
 
    The grievance in this case alleged that management structured the
 rating scheme for the position involved in such a way as to unilaterally
 change the evaluation criteria in the vacancy announcement in violation
 of Article XII, section 1 of the parties' agreement.  Article XII,
 Section 1 provides that as a matter of policy "(t)he Employer shall
 consult with the Union on the establishment and revision of the criteria
 used in the selection and promotion process." The Union basically argues
 that the evaluation criteria for the position as set forth in the
 vacancy announcement do not match the rating scheme.  Without access to
 the requested rating scheme, the Union is not able to prove that the
 Respondent has deviated from its publicly announced evaluation criteria
 for filling the vacant position.
 
    In our view, the rating scheme is at the very heart of the Union's
 grievance and is necessary to the processing of the grievance.  The
 furnishing of the rating scheme as to this particular position for the
 limited purpose of processing the grievance will afford the Union the
 opportunity to monitor and enforce its negotiated contractual right
 under Article XXI, section 1 of the agreement and will encourage the use
 of non-disruptive grievance procedures for that purpose.
 
           B.  Release of the Rating Scheme to the Union Is Not
 
                Prohibited by Law
 
    We find that the Respondent has not established that disclosure of
 the information requested by the Union is "prohibited by law" within the
 meaning of section 7114(b)(4) of the Statute.
 
    The Respondent argues that release of the rating scheme sought by the
 Union is precluded by FPM Supplement 335-1, subchapter 6.  However, in
 Department of the Army, Headquarters, XVIII Airborne Corps and Fort
 Bragg, Fort Bragg, North Carolina, 26 FLRA No. 52 (1987), we recently
 decided than even if FPM Supplement 335-1 is a "law" within the meaning
 of section 7114 (b)(4), it does not prohibit release of crediting plans
 in all circumstances.  Citing our decision in National Treasury
 Employees Union and Department of the Treasury, U.S. Customs Service, 23
 FLRA No. 91 (1986), we reiterated the finding that under FPM Supplement
 335-1, 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.  Therefore, the determination as to
 whether release of the information would create an unfair advantage or
 compromise the utility of a selection process depends on the particular
 circumstances present and consequently, should be made on a case-by-case
 basis.  Headquarters, XVIII Airborne Corps and Fort Bragg, slip op. at
 7.
 
    In the consolidated unfair labor practice cases under consideration
 in Headquarters, XVIII Airborne Corps and Fort Bragg, we found that:
 
          (D)isclosure 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 the 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.
 
    Slip op. at 7-8.
 
    In this case, the Union requested a copy of the rating scheme for the
 purpose of processing a grievance concerning the filling of a particular
 position.  The information was sought to enable the Union to determine
 whether the Respondent had structured the rating scheme in such a way as
 to unilaterally change the criteria for the position as set forth in the
 vacancy announcement in violation of the parties' collective bargaining
 agreement.  The Union's request does not require blanket disclosure of
 the Respondent's crediting plans.  Rather, disclosure of the rating
 scheme pertains to only one selection and would enable the Union to
 fulfill its representational responsibilities.
 
    Moreoever, in agreement with the Judge, we find that in the
 particular circumstances of this case, disclosure of the rating scheme
 will not create any unfair advantage to prospective candidates for the
 particular position involved, since the disputed selection action has
 been completed, and that disclosure will not compromise the Respondent's
 selection process.  We find that where, as here, the requested
 information is necessary to the processing of a grievance, a bare
 assertion that an unfair advantage or compromise of selection procedures
 will result from release of the information, based on nothing more than
 speculation that the information will be used improperly by the Union
 for other purposes, does not establish that release of the information
 would be contrary to FPM Supplement 335-1.  We note that the Union has
 had representatives present at Promotion Review Panel proceedings in the
 past pursuant to the parties' agreement and those representatives have
 had access to rating schemes.  There is no showing that the Union has
 disseminated the information contrary to the restrictions of FPM
 Supplement 335-1.
 
    Accordingly, we conclude that release of the rating scheme to the
 Union is not contrary to law and is not inconsistent with FPM Supplement
 335-1.
 
                     C.  Respondent's Other Arguments
 
    In agreement with the Judge and based on his rationale, we find that
 the Respondent's other arguments presented to the Judge and subsequently
 reiterated in the Respondent's exceptions are without merit.  In that
 regard, we agree with the Judge that the Respondent's offer to allow the
 Union to look at the rating scheme at some future Promotion Panel
 meeting does not satisfy the Respondent's obligation under section
 7114(b)(4) of the Statute.  Section 7114)b)(4) prescribes the duty of an
 agency to furnish information to an exclusive representative of its
 employees and merely allowing a union to look at information the union
 is entitled to for representational purposes does not discharge the
 agency's duty.  Further, we will not consider the RespondentS contention
 pertaining to the nature of the position involved in the selection
 action since that contention was raised for the first time in its
 exceptions.  In accordance with section 2429.5 of the Authority's Rules
 and Regulations, "(t)he Authority will not consider evidence offered by
 a party, or any issue, which was not presented in the proceeding before
 . . . the Administrative Law Judge."
 
    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 the
 Judge made at the hearing, find that no prejudicial error was committed,
 and affirm those rulings.  We have considered the Judge's Decision, the
 submissions of the parties, and the entire record, and adopt the Judge's
 findings and conclusions as discussed above.  We conclude that the
 Respondent violated section 7116(a)(1), (5) and (8) of the Statute by
 refusing to furnish the Union with a copy of the rating scheme used by
 the Respondent's Promotion Review Panel on September 18 and 19, 1984, as
 required by section 7114(b)(4).  In ordering the Respondent to provide
 the Union with the requested information, we do so with the expectation
 that the Union will use the data solely for the fulfillment of its
 representational functions in connection with the grievance involved in
 this case.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Statute, the
 U.S. Department of Agriculture, Animal and Plant Health Inspection
 Service, Plant Protection and Quarantine shall:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing to furnish the National Association of
 Agriculture Employees, the employees' exclusive representative, a copy
 of the rating scheme for a Supervisory Plant Protection and Quarantine
 Officer (crew leader) position used by the Promotion Review Panel on
 September 18 and 19, 1984.
 
    (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 in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
    (a) Furnish the National Association of Agriculture Employees, the
 exclusive representative of its employees, a copy of the rating scheme
 for a Supervisory Plant Protection and Quarantine Officer (crew leader)
 position used by the Promotion Review Panel on September 18 and 19,
 1984.
 
    (b) Post at all facilities within the South Central Region 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
 a senior official of the U.S. Department of Agriculture and shall be
 posted and maintained for 60 consecutive days thereafter, in conspicuous
 places, including 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.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director Region IV, Federal Labor
 Relations Authority, in writing, within 30 days of the date of this
 Order, as to what steps have been taken to comply with the Order.
 
    Issued, Washington, D.C., April 22, 1987.
 
                                       /s/ Jerry L. Calhoun
                                       Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III
                                       Henry B. Frazier III, Member
                                       /s/ Jean McKee
                                       Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND 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 and refuse to furnish the National Association of
 Agriculture Employees, the exclusive representative of a unit of our
 employees, a copy of the rating scheme for Supervisory Plant Protection
 and Quarantine Officer (crew leader) used by the Promotion Review Panel
 on September 18 and 19, 1984.
 
    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 furnish the National Association of Agriculture Employees a
 copy of the rating scheme for Supervisory Plant Protection and
 Quarantine Officer (crew leader) used by the Promotion Review Panel on
 September 18 and 19, 1984.
                                       (Activity) . . .
 
    Dated:  . . .
                                       By:  (Signature) (Title) . . .
 
    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 VI, whose address is:  Federal Office
 Building, 525 Griffin Street, Suite 926, Dallas, Texas 75202 and whose
 telephone number is:  (214) 767-4996.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 6-CA-50121
 
 UNITED STATES DEPARTMENT OF AGRICULTURE, 
 ANIMAL AND PLANT HEALTH INSPECTION SERVICE, 
 PLANT PROTECTION AND QUARANTINE
    Respondent
 
                                    and
 
 NATIONAL ASSOCIATION OF AGRICULTURE 
 EMPLOYEES, BRANCH #15
    Charging Party
 
    Susan E. Jelen, Esquire
    For the General Counsel
 
    Stanley E. Kensky
    Cutberto Castro
    For the Respondent
 
    Judy Jenkin
    For the Charging Party
 
    Before:  BURTON S. STERNBURG
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
 section 7101 et seq. and the Rules and Regulations issued thereunder.
 
    Pursuant to an amended charge first filed on November 16, 1984, by
 the National Association of Agriculture Employees, Branch #15, a
 Complaint and Notice of Hearing was issued on February 25, 1985, by the
 Regional Director for Region VI, Federal Labor Relations Authority,
 Dallas, Texas.  The Complaint, as amended at the hearing alleges that
 the United States Department of Agriculture, Animal and Plant Health
 Inspection Service, Plant Protection and Quarantine (hereinafter called
 the Respondent or Department of Agriculture), violated Sections
 7116(a)(1), (5) and (8) of the Federal Service Labor-Management
 Relations Statute (hereinafter called the Statute), by virtue of its
 actions in refusing to furnish the "rating scheme" /2/ utilized by a
 Promotion Review Panel on September 18 and 19, 1984, to the National
 Association of Agriculture Employees, the exclusive representative of
 Respondent's Plant Protection and Quarantine Officers (hereinafter
 called the Union.) /3/
 
    A hearing was held in the captioned matter on March 26, 1985, in El
 Paso, Texas.  All parties were afforded the full opportunity to be heard
 to examine and cross-examine witnesses, and to introduce evidence
 bearing on the issues involved herein.  The General Counsel and the
 Respondent submitted post-hearing briefs on May 28, 1985, which have
 been duly considered.
 
    Upon the basis of the entire record, including my observation of the
 witnesses and their demeanor, I make the following findings of fact,
 conclusions and recommendations.
 
                             Findings of Fact
 
    The Union is the duly recognized exclusive representative of a
 nationwide unit of Respondent's employees, including, among others,
 Plant Protection and Quarantine Officers.  The Respondent and the Union
 are parties to a collective bargaining agreement which provides in
 Article XII, Sections 1 and 2 as follows:
 
                          ARTICLE XII PROMOTIONS
 
    Section 1.  Policy
 
          Promotion of employees in the representation unit shall be made
       in accordance with applicable rules and regulations of the U.S.
       Department of Agriculture, Animal and Plant Health Inspection
       Service and Plant Protection and Quarantine.  The Employer shall
       consult the Union on the establishment and revisions of the
       criteria used in the selection and promotion process.
 
    Section 2.  Promotion Review Panel Meetings
 
          The Union shall have a representative present at those meetings
       of the Program's Promotion Review Panel which are held to identify
       and rank highly qualified candidates for promotion to supervisory
       or specialist positions GS-12 and below for which members of the
       bargaining unit are eligible and more than ten (10) applicants are
       being considered.  The Union representative shall be authorized
       official time and travel and be a participating member selected by
       the Deputy Administrator or his/her designee from a list of
       employees (minimum of 5) recommended by the Union President.
       Employees on the list will be within a 500 mile radius of the
       Promotion File Office.  The discussion and proceedings of the
       committee meetings shall be considered confidential.
 
    Ms. Judy Jenkin, a bargaining unit employee, worked as a Plant
 Protection and Quarantine Officer at El Paso, Texas, for four and one
 half years.  Ms. Jenkin transferred to the Respondent's Baltimore,
 Maryland office in March of 1985.  While working in El Paso, Texas, Ms.
 Jenkin served as vice-president for the Union's Branch #15 which was
 responsible for servicing the El Paso, Texas area.  From June through
 November of 1984, Ms. Jenkin received a temporary appointment to the
 position of Acting Regional Vice-President for the South Central Region.
  In this latter position she was responsible for representing the
 various branches of the Union within the South Central Region and
 members at large.
 
    In the latter part of 1984 Respondent posted Vacancy Announcement
 PSC-10-84 applicable to the position of Supervisory Plant Protection and
 Quarantine Officer (crew leader) GS-436-11, Houston, Texas.  /4/ The
 closing date for the submission of applications for the vacancy was
 September 10, 1984.
 
    On September 18, 1984 a promotion review panel was convened in
 Brownsville, Texas.  The promotion review panel was assigned the
 responsibility of identifying and ranking the highly qualified
 applicants for the supervisory position set forth in the Vacancy
 Announcement.  Inasmuch as there were more than ten applicants for the
 vacant position, in accordance with Article XII, Section 2 of the
 collective bargaining agreement, Ms. Judy Jenkin was selected as the
 Union's representative on the promotion review panel.  The other two
 individuals on the promotion review panel were Mr. Ray Corbajal,
 Assistant Officer-in-Charge at Brownsville, Texas, a management
 official, and Robert Griffin, Pathologist Identifier, a bargaining unit
 employee.
 
    Prior to beginning their deliberations and consideration of the
 applicants for purposes of constructing a best qualified list on
 September 18, 1984, the Panel met with Mr. Cutberto Castro, a Regional
 Personnel Management Specialist, who instructed them in the procedures
 to be utilized in selecting the best qualified candidates.
 Additionally, the Panel was given a packet of information, including a
 "rating scheme" to be utilized in their deliberations.  According to Ms.
 Jenkin, the "rating scheme" was supposed to correspond with the
 evaluation criteria appearing in the vacancy announcement.
 
    On September 19, 1984, the Panel certified six applicants as best
 qualified and submitted the list to Respondent.  However, the record
 reveals that the Respondent subsequently on or about October 1, 1984,
 opted to fill the vacancy by means of a lateral transfer of a
 supervisory PPQ Officer from outside the Houston, Texas area rather than
 utilize the certified list complied by the Panel pursuant to the merit
 promotion plan.
 
    Following the submission by the Panel of the list of best qualified
 candidates on September 19, 1984, Ms. Jenkin returned to El Paso, Texas
 and proceeded to write a letter to Mr. W. H. Moore, Regional Director in
 Brownsville, Texas, wherein she expressed her concern that the promotion
 review panel may have failed to fulfill the requirements set for in
 Article XXI, Sections 1 and 2 of the collective bargaining agreement.
 Citing the possibility that the Union might opt to file a grievance, Ms.
 Jenkin requested Mr. Moore to furnish the Union copies of all materials
 used by the Panel, including, among other things, the "rating scheme."
 
    By letter dated October 5, 1984, Mr. Moore replied in pertinent part
 as follows:
 
          Before we can provide you the information requested, could you
       provide this office in more specific terms, how the merit
       Promotion Review Panel may not have fulfilled the requirements in
       the Collective Bargaining Agreement and why this information is
       considered necessary as referenced in 5 U.S.C., Section 14.
 
    On October 17, 1984, Ms. Jenkin filed a grievance wherein it was
 alleged, among other things, that "As illustrated by the Promotion
 Review Panel held in Brownsville on September 18 and 19, management has
 unilaterally structured the rating scheme in such a way to change the
 evaluation criteria.  This is in violation of the Collective Bargaining
 Agreement, Article XII, Section 1." The covering letter accompanying the
 grievance pointed to the attached grievance as the reason that Union had
 requested, among other things, the "rating scheme."
 
    By letter dated November 2, 1984, Mr. Cutberto Castro, Personnel
 Management Specialist, South Central Region, informed Ms. Jenkin, among
 other things, that the rating criteria utilized by the Panel was the
 "same as the criteria previously used in all like positions in the South
 Central Region." Mr. Castro further stated as follows:
 
          Your request for all materials used during the panel process is
       not considered a reasonable request.
 
          The release of the rating scheme (crediting plan) is considered
       confidential material and not releasable.  A copy of a recent
       court decision is provided for your information.
 
          Although this informaton cannot be provided I did state to you
       that you would be given access to this information, for review but
       not for duplication, during your next participation in a future
       panel evaluation or to an NAAE designee.
 
    Ms. Jenkins testified that she was concerned that the "rating scheme"
 utilized in the Panel's deliberations did not agree with the "evaluation
 criteria" set forth on the vacancy announcement.
 
                        Discussion and Conclusions
 
    Respondent, who does not contest the above recitation of the facts,
 takes the position that (1) FPM Supplement 335-1, Subchapter S6, as
 interpreted by former OPM Director Donald Devine prohibits the
 disclosure of the "rating scheme" since it would give an advantage to a
 future applicant possessing the "rating scheme" in applying for a
 similar position, (2) since the Second Circuit Court of Appeals in U.S.
 Customs Service, Region II v FLRA and NTEU, 739 F2d 829 found crediting
 plans to be outside the scope of bargaining the Union is not entitled to
 the information, (3) inasmuch as Respondent is willing to allow the
 Union to look at the "rating scheme" in camera there is no necessity for
 supplying a copy of the "rating scheme," and (4) that the matter is moot
 since the vacancy position was filled by a transfer and not from the
 certified list compiled by the Panel.
 
    The General Counsel, on the other hand, while acknowledging the
 Circuit Court's decision in U.S. Customs Service, Region II, supra,
 takes the position that the Authority has not indicated its intent to
 adopt the decision of the Circuit Court and points out that in any event
 there is no showing that Union intended to bargain over the "rating
 scheme." Further, according to the General Counsel the Authority has in
 the past considered the effect of FPM Supplement 335-1, Subchapter S6
 and concluded that such regulation does not prohibit the disclosure of
 crediting plans.  In view of the foregoing and since the "rating scheme"
 meets the requirements of Section 7114(b)(4) and is necessary and
 relevant to the preparation and prosecution of its grievance,
 Respondent's refusal to make the "rating scheme" available is violative
 of Sections 7116(a)(1), (5), and (8) of the Statute.
 
    It is well established that under Section 7114(b)(4) of the Statute
 an agency is obligated, upon request, to furnish the exclusive
 representative of its employees information within its possession which
 is necessary and relevant to the performance of the exclusive
 representative's representational obligations, which include, among
 other things, the processing of grievances.  U.S. Custom Service, Region
 VII, Los Angeles, California, 10 FLRA 251.
 
    While the Respondent does not appear to argue with the state of the
 law, it does defend its action in refusing to make the rating plan
 available on four separate grounds, namely, the Circuit of Appeals
 decision in U.S. Customs Service, Region II v FLRA, supra, finding that
 crediting plans are non-negotiable, FPM Supplement 335-1, Subchapter S6,
 mootness, and its willingness to allow the Union to view the rating
 scheme in camera.
 
    With regard to the Respondent's first defense, while it is true that
 the Circuit Court of Appeals did overrule the Authority's decision in
 National Treasury Employees Union and NTEU Chapters 153, 161, and 183
 and U.S. Customs Service, Region II, 11 FLRA 209, and found that
 crediting plans are non-negotiable, there is no indication by the
 Authority that it intends to modify its position in the matter.
 Accordingly until there is some indication of the course the Authority
 will take in the matter I am constrained to follow the Authority's
 holding.  Moreover, there is no showing that the Union herein seeks to
 negotiate over the rating plan, rather it merely seeks a copy of the
 plan for purposes of comparing it with the vacancy announcement in order
 to determine whether there has been compliance with Article XII, Section
 1 of the contract.  In this latter context the Circuit Court of Appeals
 decision is silent as to the Authority's finding in National Treasury
 Employees Union and NTEU Chapters 153, 161 and 183 and U.S. Customs
 Service, supra, namely that FPM Supplement 335-1, Subchapter S6 does not
 bar the disclosure of the Rating Scheme if its release would not create
 any unfair advantage to some candidates or compromise the utility of the
 selection process.  In the instant case there is no showing that the
 disclosure of the rating plan would create any unfair advantage.
 
    With regard to the Respondent's third defense predicated upon
 mootness, I find contrary to the contention of Respondent that matter is
 not moot.  The Union's grievance concerns the manner in which the
 Respondent constructs its vacancy announcements and not the filling of
 instant PPQ vacancy.  Thus, the Union contends that there is a variance
 between the evaluation criteria and the actual rating criteria which is
 contrary to the collective bargaining agreement.
 
    With regard to the Respondent's last defense, i.e. that its offer to
 allow the Union to view the rating scheme in camera satisfies its
 obligations under Section 7114(b)(4) of the Statute, sufficeth to say
 that Section 7114(b)(4) provides that the Union will be furnished the
 information, not merely allowed the limited opportunity of viewing the
 same in camera.
 
    [aving determined that Respondent's defenses lack merit, the sole
 question remaining for determination is whether the "rating scheme" is
 necessary and relevant to the processing of the Union's grievance.
 
    The Union contends that the criteria underlying the rating scheme is
 different that the evaluation criteria set forth in the vacancy
 announcement and as such constitutes a violation of the collective
 bargaining agreement.  In order to demonstrate the difference in such
 criteria it is necessary to have the rating scheme for purposes of
 comparison.  Accordingly, I find that the rating scheme falls within the
 ambit of Section 7114(b)(4) of the Statute and that the refusal of the
 Respondent to furnish the rating scheme to the Union in connection with
 the processing of its grievance constitutes a violation of Sections
 8(a)(1), (5) and (8) of the Statute.
 
    Having found that the Respondent has violated the Statute I hereby
 recommend that Authority issue the following order designed to
 effectuate the purposes and policies of the Statute.
 
                                   ORDER
 
    Pursuant to Section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and Section 7118 of the Statute, it is
 hereby ordered that the Union States Department of Agriculture, Animal
 and Plant Health Inspection Service, Plant Protection and Quarantine
 shall:
 
    1.  Case and desist from:
 
          (a) Failing and refusing to furnish to the National Association
       of Agriculture Employees, the employees' exclusive representative,
       a copy of the rating scheme for a Supervisory Plant Protection and
       Quarantine Officer (crew leader).
 
          (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 in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
          (a) Furnish the National Association of Agriculture employees,
       the exclusive representative of its employees, a copy of the
       rating scheme for a Supervisory Plant Protection and Quarantine
       Officer (crew leader).
 
          (b) Post at all facilities within the South Central Region
       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 a responsible official of the U.S.
       Department of Agriculture and shall be posted and maintained by
       him for 60 consecutive days thereafter, in conspicuous places,
       including 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) Pursuant to Section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director for Region 6, Federal
       Labor Relations Authority, in writing, within 30 days of the date
       of this Order, as to what steps have been taken to comply
       herewith.
 
                                       /s/ Burton S. Sternburg
                                       BURTON S. STERNBURG
                                       Administrative Law Judge
 
    Dated:  June 28, 1985 
            Washington, D.C.
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) The Respondent also filed a request to submit a response to the
 Union's opposition, alleging that a document and related contention in
 the Union's opposition raised new issues to which the Respondent
 previously did not have an opportunity to respond.  The Union filed a
 motion to reject the Respondent's submission on the grounds that the
 submission was not provided for in the Authority's rules and Regulations
 and that the Union had not raised any new issues.  It has been
 determined, pursuant to section 2429.5 of the Authority's Rules and
 Regulations that the disputed document submitted with the Union's
 opposition and the contention in the opposition concerning that
 document, which were not presented in the proceeding before the
 Administrative Law Judge in this case, should not be considered by the
 Authority.  Accordingly, the Respondent's request to respond to the
 document and related contention is denied and the Union's motion to
 reject the request is denied as moot.
 
    (2) The Complaint originally charged the Respondent with failing to
 furnish certain other data in addition to the rating scheme.  However,
 prior to the hearing the parties reached a settlement on all items
 except the "rating scheme" and the parties thereafter agreed to confine
 the hearing solely to the issue of Respondent's failure to make the
 rating scheme available to the Union.
 
    (3) The record reveals that the Federal Plant Quarantine Inspector's
 National Association, which is the duly recognized exclusive
 representative on a nationwide basis has been operating under name of
 National Association of Agriculture Employees.  There has been no
 official name change.
 
    (4) The Vacancy Announcement set forth the following evaluation
 criteria that the applicants should address in their respective
 applications for the vacant position.
 
          EVALUATION CRITERIA:
 
          The applicant should include an addendum to the SF-171 on a
       plane piece of paper which specifically addresses their experience
       and training as it relates to the evaluation criteria.  Without
       this addendum, the panel cannot adequately rate the SF-171 against
       the evaluation criteria.
 
          A.  Knowledge of Plant Protection and Quarantine Programs.
       This includes, but it not limited to items such as fumigations,
       quarantine procedures, pesticide applications, etc.
 
          B.  Ability to plan, schedule, direct and prioritize the work
       of subordinate employees.
 
          C.  Knowledge of personnel regulations such as employee
       development, employee relations, LMR and EEO.
 
          D.  Ability to interpret regulator information.
 
          E.  Ability to communicate orally and in writing.  (0GC Ex 3)
 
 
 
 
 
                                 APPENDIX
 
                          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 and refuse to furnish the National Association of
 A