26:0832(98)CA - Interior, Washington, DC and Bureau of Reclamation, Lower Colorado Dams Project, Boulder City, NV and AFGE Local 1978 -- 1987 FLRAdec CA
[ v26 p832 ]
The decision of the Authority follows:
26 FLRA No. 98 DEPARTMENT OF THE INTERIOR WASHINGTON, D.C. AND BUREAU OF RECLAMATION LOWER COLORADO DAMS PROJECT BOULDER CITY, NEVADA Respondents and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1978 Charging Party Case No. 9-CA-40223 DECISION AND ORDER I. Statement of the Case This unfair labor practice case is before the Authority on exceptions to the attached Administrative Law Judge's Decision filed by the Department of the Interior. The General Counsel filed an opposition to the exceptions. /*/ The complaint alleged that the Respondent Bureau of Reclamation violated section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to provide the Charging Party (the Union) with copies of crediting plans which the Union sought pursuant to section 7114(b)(4) of the Statute in connection with the negotiation of proposed changes in merit promotion procedures. The complaint further alleged that the Respondent Department of the Interior violated section 7116(a)(1) and (5) of the Statute by directing the Respondent Bureau of Reclamation to refuse the Union's request. II. Facts The Bureau of Reclamation's Merit Promotion Plan is incorporated by reference in its collective bargaining agreement with the Union. The Bureau submitted a revised Plan to the Union for negotiation pursuant to the parties' agreement. The Union requested to bargain concerning the revised Plan and submitted proposals, including a proposal to negotiate with respect to crediting plans. The Bureau's crediting plans, which are used in the rating and ranking of applicants, were not changed by the proposed revision of the Merit Promotion Plan. Management's representative at the bargaining table declared that crediting plans were nonnegotiable. The Union then requested copies of the crediting plans to formulate specific bargaining proposals concerning the crediting plans themselves and to ensure that the plans were protected from changes which might result in preselection, favoritism or other violations of the Merit Promotion Plan. The Bureau refused to provide the Union with copies of the crediting plans despite Union assurances that it would safeguard the confidentiality of the plans and suggestions as to how that protection might be accomplished. The parties stipulated that the Respondent Bureau was directed to refuse the Union's request by the Respondent Department of the Interior. III. Administrative Law Judge's Decision The Judge concluded that because the Bureau of Reclamation was acting on the instructions of the Department of the Interior, the Bureau did not commit an unfair labor practice as alleged in the complaint. The Judge therefore recommended that the complaint against the Bureau be dismissed. However, the Judge concluded that the Department of the Interior violated section 7116(a)(1) and (5) of the Statute by directing the Bureau to withhold the crediting plans from the Union. In reaching this conclusion, the Judge found, based on Authority precedent at the time of his decision, that the substance of the crediting plans was negotiable. The Judge also found that the use of crediting plans was an integral part of the application of the Merit Promotion Plan. The Judge therefore determined that the Union was entitled to the crediting plans under section 7114(b)(4) of the Statute to enable the Union to pursue its bargaining rights with respect to both the crediting plans and the Merit Promotion Plan. The Judge rejected the Respondent's arguments that disclosure of the crediting plans would interfere with management's rights under section 7106(a) of the Statute and would compromise the integrity of the plans contrary to Federal Personnel Manaul (FPM) Supplement 335-1, subchapter S6. IV. Positions of the Parties The Respondent Department of the Interior essentially argues that the Judge erred in finding that crediting plans are negotiable and that the Bureau of Reclamation was required to provide copies of the plans to the Union pursuant to section 7114(b)(4) of the Statute. The Respondent Department argues that the Union requested copies of the crediting plans in an effort to negotiate concerning the content of the plans; and that the content of the crediting plans is nonnegotiable because it involves the exercise of management's rights under section 7106(a)(2)(B) and (C) of the Statute to determine its personnel and to make selections for appointment. The Respondent also contends that FPM Supplement 335-1, subchapter S6, precludes the disclosure of the crediting plans because such disclosure would compromise the integrity of the plans. The Department further argues that the Judge erred in concluding that crediting plans were necessary for the Union to negotiate regarding changes in the Merit Promotion Plan. The Department maintains that while the crediting plans are used in the merit promotion process, the proposed changes in the Merit Promotion Plan did not affect the crediting plans and that the information was not necessary for the Union to bargain over the changes. The General Counsel contends that while the crediting plans were not changed by the Bureau's proposed revision of the Merit Promotion Plan, the substance and application of the crediting plans constitute a critical component of the merit promotion system and that they cannot and should not be separated from the parties' negotiated Merit Promotion Plan. The General Counsel argues that only by ensuring fairness of the crediting plans can the Union ensure fair application of the Merit Promotion Plan. The General Counsel further argues that the Union's request for copies of the crediting plans was based only in part on a desire to negotiate concerning the content of the plans. The General Counsel points out that the Union also sought the plans to protect them from improper changes. In conclusion, the General Counsel maintains that the Union was entitled to copies of the crediting plans to enable the Union to effectively negotiate concerning the plans; to police and administer provisions in the parties' negotiated agreement which specify certain requirements for crediting plans; and to intelligently assess potential grievances. V. Analysis We must disagree with the Judge's finding that crediting plans are negotiable. The decisions of the Authority the Judge relied on to support his finding were reversed on appeal. Department of the Treasury, U.S. Customs Service v. FLRA, 762 F.2d 1119 (D.C. Cir. 1985), reversing National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, Washington, D.C., 11 FLRA 247 (1983); U.S. Customs Service, Region II v. FLRA, 739 F.2d 829 (2d Cir. 1984), reversing National Treasury Employees Union and NTEU Chapters 153, 161 and 183 and U.S. Customs Service, Region II, 11 FLRA 209 (1983). The Authority subsequently concurred in the result reached by the courts in those cases as to the negotiability of the content of crediting plans and determined that the content of such plans is not within the duty to bargain. The Montana Air Chapter of Association of Civilian Technicians and U.S. Department of the Air Force, Montana Air National Guard, 19 FLRA 946 (1985). In this case, one of the purposes of the Union's request for the Respondent Bureau's crediting plans was to negotiate regarding their content. Section 7114(b)(4)(B) of the Statute provides for release of information to an exclusive representative that is "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining(.)" Since the content of crediting plans is not within the duty to bargain, we conclude that the information is not "necessary" within the meaning of section 7114(b)(4)(B) and, therefore, that the Union is not entitled to the Bureau's plans to pursue its stated purpose of negotiating regarding their content. Moreover, in National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 23 FLRA No. 91 (1986), we held that a proposal which would require disclosure of the agency's crediting plans to the union on request was nonnegotiable. We determined that the proposal was inconsistent with FPM Supplement 335-1, a Government-wide regulation, because the proposal would authorize a blanket disclosure of crediting plan information without regard to whether the release of that information would undermine the fairness and validity of selection procedures. Slip op. at 3. Similarly, we find that in the circumstances of this case the Union is not entitled to the blanket disclosure of all of the Respondent's crediting plans on request. While the Judge found that there was no evidence submitted to support the Respondent's contention that release of the plans to the Union would compromise the integrity of the plans, that finding does not establish the Union's need for the information under section 7114(b)(4) of the Statute. In that regard, we disagree with the Judge's finding that the Bureau's crediting plans are necessary for the Union to negotiate with respect to the revised Merit Promotion Plan. No changes were made or proposed in the crediting plans. While crediting plans may be used in the selection process, there is no evidence that the Union needs the plans to negotiate procedures or requirements concerning their use. Moreover, contrary to the contention of the General Counsel, we find that the crediting plans were not needed at the time of the Union's request to police and administer the parties' collective bargaining agreement or to assess potential grievances. We have held that an exclusive representative may obtain copies of specific crediting plans under section 7114(b)(4) of the Statute where the information is necessary for the union to effectively carry out its representational responsibilities in monitoring and enforcing rights under a negotiated agreement in certain situations, for example, in processing a grievance concerning a particular selection action. Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 26 FLRA No. 52 (1987); United States Department of Argiculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, 26 FLRA No. 79 (1987). In this case, however, where the Union submitted a blanket request for copies of all of the Bureau's crediting plans and there is no evidence that any of the plans were needed in connection with a particular grievance, the information is not necessary wtthin the meaning of section 7114(b)(4)(B). VI. Conclusion We conclude that the Respondent Department of the Interior did not violate section 7116(a)(1), (5) and (8) of the Statute by directing the Respondent Bureau of Reclamation to deny the Union's request for copies of all of the Bureau's crediting plans. We further conclude, in agreement with the Judge, that the Respondent Bureau did not violate the Statute as alleged in the complaint by denying the Union's request. ORDER The complaint in Case No. 9-CA-40223 is dismissed. Issued, Washington, D.C., April 30, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 9-CA-40223 DEPARTMENT OF INTERIOR, WASHINGTON, D.C. AND BUREAU OF RECLAMATION, LOWER COLORADO DAMS PROJECT BOULDER CITY NEVADA Respondents and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1978 Charging Party Dan Jensen For the Respondent Bureau of Reclamation Gerald Rachelson, Esq. For the Respondent Bureau of Reclamation and Department of Interior Cecil Miller For the Charging Party Josanna Berkow, Esq. For the General Counsel Federal Labor Relations Authority Before: SAMUEL A. Chaitovitz Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Service Labor-Managment Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. section 7101 et seq., 92 Stat. 1191, (hereinafter referred to as the Statute) and the Rules and Regulations of the Federal Labor Relations Authority (FLRA), 5 C.F.R. Chapter XIV, section 2410 et seq. An unfair labor practice charge was filed on April 12, 1984 by American Federation of Government Employees, Local 1978 (hereinafter called AFGE Local 1978 and the Union) alleging that Lower Colorado Dams Project violated the Statute. An amended charge was filed on July 13, 1984 by the Union alleging that Bureau of Reclamation, Lower Colorado Dams Project and Department of Interior (herein collectively referred to as Respondents) violated the Statute. Based upon the foregoing the General Counsel of the FLRA, by the Regional Director of Region 9, issued a Complaint and Notice of Hearing on July 25, 1984 and amended the Complaint on Autust 9, 1984. The amended Complaint alleges that the Bureau of Reclamation violated Sections 7116(a)(1), (5) and (8) of the Statute by failing to provide the Union with copies of crediting plans, as required by Section 7114(b)(4) of the Statute and Department of Interior violated Sections 7116(a)(1) and (5) of the Statute by interfering with Bureau of Reclamation's obligation to comply with the provisions of Section 7114(b)(4) of the Statute. Respondents filed timely joint Answer denying they had violated the Statute. A hearing was conducted before the undersigned in Las Vegas, Nevada. Respondents, AFGE Local 1978, and General Counsel for the FLRA were represented and afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence and to argue orally. Post hearing briefs have been filed and have been fully considered. Based upon the entire record /1/ in this matter, my observation of the witnesses and their demeanor, and from my evaluation of the evidence, I make the following: Findings of Fact At all times material herein, AFGE Local 1978 has been the certified exclusive representative of certain employees of Respondent's Lower Colorado Dams Project at Hoover Dam. Gerald May, an employee of Hoover Dam, has been the Union's Chief Negotiator since 1971. Cecil (Mike) Miller was elected President of the Union in December of 1983. A collective bargaining agreement covering employees at Hoover Dam was in effect at all times material. The Bureau of Reclamation's Merit Promotion Plan is incorporated by reference into the negotiated agreement in Article 9. Crediting plans are developed by the Regional personnel staffing specialist and the supervisor of the position to be filled. The specialist identifies minimum qualifications for the job from Office of Personnel Management's (OPM's) generic job definitions, referred to as the screen out element. This element may not be modified. Then, the specialist works with the immediate superviosr in developing more specific job elements to fit the requirements of the particular position. Once the job elements are thus established, the specialist develops a crediting plan to rank and rate the applicants using the Department of Interior manual. Either a panel (Merit Promotion Board) or an individual, depending upon the number of applicants, ranks the applicants and develops a Best Qualified List (BQL) which is then sent to the selecting official. The selecting official needn't select any of the applicants on the BQL. He can either select off the list or set the entire process in motion again by asking for another BQL. Moreover, Respondent needn't use crediting plans to make selections. It may select from any other appropriate means such as reemployment priority lists, reinstatements, transfers, handicapped or veterans' readjustment eligibles or off of OPM certificates. Article IV of the negotiated agreement provides for Union designation of a representative on an Merit Promotion Board that might be assembled to fill a particular vacancy. On March 8, 1983, Bureau of Reclamation regional management submitted a revised Merit Promotion Plan to the Union for negotiation pursuant to Article 9 of the collective bargaining agreement. The proposal contained both changes and carryovers from the existing Merit Promotion Plan. /2/ By letter of March 9, 1983, the Union requested to bargain concerning the revised plan. Bargaining was delayed pending the completion of other negotiations by the parties. The Union submitted its merit promotion proposals to Management on June 16, 1983. One of the Union's proposals was to negotiate with respect to crediting plans. /3/ The parties began negotiations pertaining to merit promotion on July 26, 1983. The Union was represented by May and management by Dan Jensen, Labor Management Relations Specialist, and by Jim McHan, Chief of Operations at Hoover Dam. Jensen stated at the outset that crediting plans were not negotiable. /4/ May replied that the FLRA had recently held they were negotiable. Jensen stated that the FLRA's decision was being appealed. May said he would check on the status of the decision and get back to Jensen on the matter. The parties proceeded to conduct negotiations regarding other merit promotion issues at this and subsequent meetings in August and September of 1983. After contacting the San Francisco Regional Office of the FLRA concerning the crediting plan decisions on September 9, 1983, May submitted a written request to McHan for copies of the crediting plans. The parties met to discuss the Union's request for the plans in November of 1983. At this meeting Jensen told May he did not want to release the plans to the Union because he feared their confidentiality would be compromised. May stated he would provide Jensen written assurances that the Union would safeguard the confidentiality of the plans. May submitted these assurances by letter of December 15, 1983 and again requested that copies of the plans be provided to the Union by December 21, 1983. The parties met to discuss the Union's second written request for the crediting plans in January of 1984. The Union was represented by May and Miller; management by Jensen and McHan. Jensen again raised concerns about the Union's ability to keep the plans confidential. Miller, on behalf of the Union, proposed that the crediting plans be kept at the Dam, that the Union be given access to the plans and that both parties sign off on the plans, thereby agreeing that these are the plans to be used for bargaining unit merit promotions. In addition, Miller proposed that the plans then be placed in a vault under a dual lock so that neither party could access the plans without the other's knowledge. Miller's "access proposal" was rejected by Jensen. McHan instead suggested that the Union obtain the information it wanted about the contents of the plans through its representatives on merit promotion boards. This was an unacceptable solution to both the Union and Jensen and the idea was tabled. Jensen then stated that he would not turn over the plans to the Union and that the Union would have to take him to court. The meeting then ended. AFGE Local 1978 filed an unfair labor practice shortly after this meeting, alleging in part that Management had refused to negotiate concerning crediting plans. The charge was subsequently withdrawn without prejudice by the Union in exchange for what it believed to be an agreement by management to negotiate regarding the crediting plans. The parties met again to discuss crediting plans shortly thereafter in March of 1984. The Union was represented by Miller and Ken Bandy, an employee at Hoover Dam and member of the Union's negotiating committee; management by Jensen and McHan. /5/ Miller again requested the crediting plans be provided to the Union. Jensen again stated he was concerned about the confidentiality of the plans. Miller again proposed that the Union be given access to the plans, a chance to review them and that they then be placed under a dual lock system to ensure confidentiality. Jensen stated he wouldn't turn the plans over to the Union during the pendency of the FLRA's negotiabiltiy decision. The present unfair labor practice was filed shortly after this meeting. The requested crediting plans are regularly maintained by Respondent Bureau of Reclamation in the Regional Office of the Lower Colorado Dams Project in Boulder City, Nevada. The Union's request for bargaining unit crediting plans covered approximately twenty to twenty-five plans. The plans average four to six pages in length. The Union requested copies of the bargaining unit crediting plans to formulate more specific proposals in connection with their request to negotiate on the plans. The Union also requested the plans because they wanted to secure them from changes which might result in pre-selection, favoritism or other violations of the negotiated Merit Promotion Plan. To date, the Union has not received copies of or access to any of the requested crediting plans. At no time throughout the parties' numerous discussions did Respondent mention any regulatory bar to disclosure of crediting plans to the Union. Respondent did not, at any time, propose alternatives to disclosure. The parties stipulated that "any refusal by Respondent Bureau of Reclamation to turn over the crediting plans for the bargaining unit employees of the Lower Colorado Dams Project office . . . was done at the direction or Respondent Department of Interior." Discussion and Conclusions of Law In the subject case Bureau of Reclamation submitted a revised Merit Promotion Plan and the Union and the Respondent met to negotiate, pursuant to Article 9 of the collective bargaining agreement, concerning these proposed changes in the Merit Promotion Plan. An integral part of the application of the Merit Promotion Plan is the use of the crediting plans. Therefore as a part of negotiating about management's proposed changes in a Merit Promotion Plan the Union reasonably can require to have access to the crediting plans and to bargain about the crediting plans. The FLRA has held that a union is entitled to bargain about the substance of crediting plans. National Treasury Employees Union and NTEU Chapters 153, 161 and 183 and U.S. Customs Service, Region II, 11 FLRA 209 (1983), /6/ reversed sub non. U.S. Customs Service, Region II v. FLRA, 739 F.2d 829 (2nd Cir., 1984); National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, Washington, D.C., 11 FLRA 247 (1983), /7/ appeal docketed, No. 83-1355 (D.C. Cir., April 4, 1983). Thus the substance of crediting plans are negotiable both in themselves and as an integral part of the Merit Promotion Plan. Further access to the crediting plans is necessary to intelligently conduct negotiations concerning the Respondent's proposed changes in the Merit Promotion Plan. Section 7114(b)(4) of the Statute provides that a collective bargaining representative has a right to relevant and necessary information to fulfill its collective bargaining responsibilities. Accordingly, because the crediting plans are negotiable and because access to them is necessary in order to bargain about the Merit Promotion Plan, the Union is entitled to the crediting plans. See NTEU I, supra and NTEU II, supra and see Department of the Treasury, U.S. Customs Service, Region VIII, San Francisco, California, 13 FLRA 631 (1984). Respondent argues that negotiating concerning the crediting plans and providing them to the Union would interfere with the management rights provision of Section 7106(a) of the Statute. The FLRA specifically rejected this contention. See NTEU I, supra. Respondent argues further that because the Union might make a non-negotiable proposal concerning the crediting plans and/or the Merit Promotion Plan this somehow frees management from bargaining and providing information concerning general matters that are negotiable. This position must be rejected because it would totally defeat the process of collective bargaining. By merely supposing in advance an unlawful proposal, management contends it should be able to free itself of its obligation to bargain over negotiable proposals. Such a situation is clearly not sanctioned by the Statute. Respondents contend that the crediting plans cannot be given to the Union because disclosure would compromise the integrity of the crediting plan and be in conflict with government-wide rules and regulations, more specifically the FPM. Although Respondents allege that providing the crediting plans to the Union would compromise their integrity, no evidence was submitted to support this contention. In fact Union representatives have been sitting on the various merit promotion boards using the crediting plans and there was no evidence submitted that there was any compromising of the integrity of the crediting plans. On the contrary, Respondents seems to have no problem with the Union representatives on the panels having access to the plans. Further the Union give its assurances in writing that it would maintain intergrity of the plans. The Union made other proposals involving locking the crediting plans in a safe, etc., designed to protect the integrity of the plans. Management merely rejected these proposals without offering any alternatives. In such circumstances, I conclude that there was no showing that providing the crediting plans to the Union would have compromised the integrity of the plans. The FLRA has already rejected Respondents' argument that providing the crediting plans to the Union would violate subchapter S6 of FPM Supplement 335-1. The FLRA stated at page 213 NTEU I, supra: Hence, the content of crediting plans can be released consistent with subchapter S6 of FPM Supplement 335-1 if the release would not create any unfair advantage to some candidates or compromise the utility of the selection process. The Agency here has not demonstrated, nor is it apparent, that disclosing the crediting plans in question would create any unfair advantage or compromise the selection process. To the contrary, assuming that all candidates have equal access to the content of the crediting plan, no candidate would be disadvantaged by its disclosure, nor would the selection process be compromised. Thus, the disclosure of the crediting plans set forth in Proposals 1 and 2 would not be inconsistent with subchapter S6, FPM Supplement 335-1. The FLRA then stated that, because of the foregoing, it did not have to decide whether the FPM provisions were a government-wide rule or regulation. In the subject case there was no showing, other than a mere allegation, that the disclosure of the crediting plans would create any unfair advantage. Accordingly I conclude, in agreement with the FLRA, that providing the Union with copies of the crediting plans would not be inconsistent with subchapter S6, FPM Supplement 335-1 and that, therefore, I need not reach the question of whether that provision of the FPM constitutes a government-wide rule or regulation within the meaning of Section 7117 of the Statute. I conclude, in light of the foregoing, that the Union was entitled to the crediting plans for positions in the collective bargaining unit in order to pursue bargaining rights pursuant to Section 7114(b)(4) of the Statute and that the Bureau of Reclamation refused to provide the Union with copies of the crediting plans. The parties stipulated that any such refusal by the Bureau of Reclamation was done at the direction of the Department of Interior. I conclude therefore that Department of Interior violated Sections 7716(a)(1) and (5) of the Statute. Cf. Department of Health and Human Services, Social Security Administration, Region VI and Department of Health and Human Services, Social Securith Adminiatration, Galveston, Texas Disbrict, 10 FLRA 26 (1982), and see U.S. Army Engineer Center and Fort Belvoir, 13 FLRA 707 (1984). The Complaint herein alleges that Bureau of Reclamation violated Sections 7116(a)(1), (5) and (8) of the Statute by its failure to provide the crediting plans. General Counsel of the FLRA, in his brief, did not urge any finding with respect to these allegations. Because the Bureau of Reclamation was acting under instructions from the Department of Interior, I am constrained to follow the FLRA's holding that, where such a component follows the instructions of its parent organization, the component organization does not violate the Statute, even if it does not meet its statutory obligations. U.S. Army Engineer Center and Fort Belvoir, supra. Accordingly, I recommend the complaint herein be dismissed insofar as it alleges a violation of the Statute by the Bureau of Reclamation. Having concluded that Department of Interior violated Section 7116(a)(1) and (5) of the Statute, it is recommended that the Authority adopt the following Order: ORDER Pursuant to Section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and Section 7118 of the Federal Service Labor-Management Relations Statute, the Authority hereby orders that the Department of Interior, shall: 1. Cease and desist from: (a) Improperly preventing the Bureau of Reclamation from providing copies of crediting plans to American Federation of Government Employees, Local 1978. (b) In any like or related manner interfering with, restrain, or coercing employees in the exercise of their rights assured by the Statute. 2. Take the following affirmative action to effectuate the purposes and policies of the Statute: (a) Permit Bureau of Reclamation to provide American Federation of Government Employees, Local 1978, with copies of requested crediting plans. (b) Post at the Hoover Dam facility 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 Department of Interior 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 by the Department of Interior 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, Region 9, 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. /s/ SAMUEL A. CHAITOVITZ Administrative Law Judge Dated: May 30, 1985 Washington, D.C. --------------- FOOTNOTES$ --------------- (*) The General Counsel also filed a motion asking the Authority to disregard the Respondent's exceptions and supporting brief because they assertedly fail to clearly present specific grounds or justification for exceptions as required by sections 2423.27 and 2423.28 of the Authority's Rules and Regulations. We have determined that the Respondent's exceptions and supporting brief are sufficiently clear to identify the grounds and supporting arguments for the exceptions presented. Accordingly, the General Counsel's motion is denied. (1) General Counsel of the FLRA's exhibit 10 was received into evidence, but was sealed in an envelope and will be forwarded in the sealed envelope to the FLRA for its examination. (2) Respondent's revisions included, inter alia, a new provision that certain employees may be promoted, reassigned, or placed into a lower grade, without competition, to listed positions which have no higher career ladder promotion potential than the position currently occupied; a new provision requiring the use of KSAO's to determine the best qualified candidate rather than merely using them to define successful performance; new procedures regarding the filling of term promotions, expansion of merit promotion procedures to select employees for certain training programs; and a new exclusion for certain vetrans' career ladder promotions from the merit promotion plan. (3) AFGE Local 1978 also proposed that the minimum area of consideration for promotion be limited to Hoover Dam and that candidates outside of Hoover Dam not be considered. (4) Jensen testified that he told May that Jensen "did not think" crediting plans were negotiable. In this regard, I credit May's version of the conversation. In so doing I note, not only was May a more credible witness, but that in fact, Jensen, would not and never did agree to bargain about the crediting plans. (5) May had been out on sick leave since March 16, 1984. He did not attend the March meeting. (6) Hereinafter referred to as NTEU I. (7) Hereinafter referred to as NTEU II. 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 improperly prevent the Bureau of Reclamation from providing copies of crediting plans to American Federation of Government Employees, Local 1978. 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 Statute. WE WILL permit Bureau of Reclamation to provide American Federation of Government Employees, Local 1978, with copies of the requested crediting plans. (Agency or Activity) 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 any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region 9, whose address is: 530 Bush Street, Room 542, San Francisco, CA 94108 and whose telephone number is: (415) 556-8106.