28:0137(25)CA - Defense Logistics Agency, Defense General Supply Center, Richmond, Virginia and AFGE Local 2047 -- 1987 FLRAdec CA



[ v28 p137 ]
28:0137(25)CA
The decision of the Authority follows:


28 FLRA No. 25

DEFENSE LOGISTICS AGENCY
DEFENSE GENERAL SUPPLY CENTER
RICHMOND, VIRGINIA

                   Respondent

      and

LOCAL 2047, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO

                               Charging Party

Case No. 34-CA-50359

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 General Counsel and the Charging Party. The issue is whether the Respondent violated section 7116(a)(1) and (6) of the Federal Service Labor - Management Relations Statute (the Statute) when it refused to comply with the Arbitrator's Opinion and Decision in Defense Logistics Agency, General Supply Center, Richmond, Virginia and Local 2047, American Federation of Government Employees, AFL - CIO, Case Nos. 84 FSIP 135 and 136, which ordered the Respondent and the Charging Party (the Union) to adopt certain language concerning crediting plans in their collective bargaining agreement. For the reasons stated below, we find that the Respondent violated the Statute when it refused to comply with the Arbitrator's Opinion and Decision.

II. Facts

The Union represents unit employees employed by the Respondent at its Richmond, Virginia facility. The Respondent and the Union operate under a Master Agreement between the Defense Logistics Agency (DIA) and the DLA Council of AFGE Locals (which represents an agency-wide [PAGE] consolidated unit) and under a local supplement to that agreement. After an impasse was reached in negotiations over portions of the local supplement agreement, the Union and the Respondent requested assistance from the Federal service Impasses Panel (the Panel) under section 7119 of the statute. The Panel referred the dispute to its Acting Executive Director for mediation-arbitration. The Acting Executive Director was granted authority to (1) mediate with respect to all outstanding issues and (2) render a final decision on any issues that remained unresolved. One of the issues in dispute was resolved during mediation. However, an issue pertaining to crediting plans was not resolved. Specifically, the parties disagreed over the extent to which benchmarks used by the Respondent in evaluating the quality-of-experience factor in the rating and ranking process of the merit promotion procedure should be disclosed.

Following a hearing, the Acting Executive Director issued an Arbitrator's Opinion and Decision on February 15, 1985. The Arbitrator accepted the Respondent's position that disclosure of the crediting plan information for positions having 50 or more employees would compromise the selection process in contravention of the Federal Personnel Manual. However, with respect to those positions that were unique to the Richmond facility, the Arbitrator determined that:

This information would be available to all, so no candidate would be disadvantaged. Moreover, to the extent that candidates merit inclusion in the highly qualified group who otherwise would not have been included, human resources management will be improved. This is to the benefit of both parties, while it should not entail an undue burden for the Employer, because it asserts that "most of the bargaining-unit positions" are not unique . . . Further, any risks from the potential for candidates' puffing of their experience should be minimized by the corresponding ease of verification, and the deterrent effect of the wording on the JOAs regarding falsification.

The Arbitrator ordered the parties to adopt the following provision in their local agreement:

KSAs (knowledge, skills, and abilities) will be published in the JOAs (job opportunity announcements) with descriptive statements as appropriate. The descriptive statement(s) [ v28 p2 ] following the KSA statements for unique positions with locally developed plans shall be the benchmark(s) and quality levels listed in the crediting plan.

By letter dated March 6, 1985, the Respondent informed the Union that it would not comply with the Arbitrator's decision since the release of such information "would jeopardize the fairness of the system and would so expose the method of rating and ranking as to virtually invalidate the rating process." The Respondent did not file exceptions to the Arbitrator's opinion and Decision with the Authority under section 7122 of the Statute.

III. Administrative Law Judge's Decision

The Judge first found that the Arbitrator's Opinion and Decision was issued in a proceeding recommended by the Panel under section 7119(c)(5)(A) of the Statute. Accordingly, he concluded that the allegation in the complaint that Respondent failed to comply with the provisions of section 7119(c) (5)(B) and (C) should be dismissed. The Judge further concluded that if the Arbitrator's Opinion and Decision was valid, the Respondent's failure to comply could constitute a failure to cooperate in "impasse procedures" and an unfair labor practice under section 7116(a)(6) of the Statute as alleged in the complaint. 1

With regard to the validity of the Arbitrator's Opinion and Decision, the Judge disagreed with the Arbitrator's findings. reasoning and conclusions concerning disclosure of crediting plan information for local positions. The Judge found that the Respondent had demonstrated to his satisfaction that release of the information would create an unfair advantage and compromise the selection process in certain circumstances. He therefore concluded that release of the information would be inconsistent with a Government-wide rule or regulation, namely Federal Personnel Manual (FPM) Supplement 335-1, subchapters S5 and S6. On that basis, the Judge further concluded that since the agreement provision imposed by the [ v28 p3 ] Arbitrator was outside the duty to bargain under section 7117(a)(1) of the Statute, the Respondent was not bound to comply with the decision and did not commit an unfair labor practice by refusing to do so.

IV. Positions of the Parties

The General Counsel contends that the Judge erred in finding that the Arbitrator's Opinion and Decision was a recommended procedure for resolution of an impasse under section 7119(c)(5)(A) of the Statute. The General Counsel contends that the Opinion and Decision was a "final action" of the Federal Service Impasses Panel pursuant to section 7119(c)(5)(B) of the Statute. The General Counsel also contends that the Judge erred in concluding that the Arbitrator's Opinion and Decision is inconsistent with FPM Supplement 335-1, subchapters S5 and S6. The General Counsel maintains that the Arbitrator correctly determined that release of the benchmark information in limited circumstances would not create any unfair advantage or compromise the selection process. In that regard, the General Counsel argues that release of the information ordered by the Arbitrator would not create any increase in verification problems or in any way jeopardize the selection process. In separate exceptions, the Charging Party also excepts to the Judge's finding regarding FPM Supplement 335-1, arguing that the language of the provision is not intended to and would not create any unfair advantage for any applicant. Additionally, the Charging Party excepts to the Judge's conclusion that the agreement language is outside the duty to bargain.

The Respondent, in its opposition to both the General Counsel's and Charging Party's exceptions, and the Office of Personnel Management (OPM) in an amicus curiae brief, essentially support the Judge's findings and conclusions with respect to FPM Supplement 335-1.

V. Analysis

A. Type of Proceeding

As a preliminary matter, we must decide whether the Arbitrator's Opinion and Decision is a final action of the Panel under section 7119(c)(5) of the Statute as characterized in the complaint, or whether it is an arbitration award. For the reasons which follow, we find that it is the latter. [ v28 p4 ] In Veterans Administration, 23 FLRA No. 87 (1986), in a situation essentially identical to the situation in this case, we concluded that the Arbitrator's opinion and Decision rendered by the Executive Director of the Panel was an interest arbitration award under section 7122 of the Statute and not a "final action" of the Panel within the meaning of section 7119(c)(5)(C) of the Statute.

In the present case, like the Veterans Administration case, the Panel referred certain unresolved issues in an impasse dispute to its Acting Executive Director for mediation-arbitration. Specifically that official was given the authority to first mediate the issues and, failing resolution on that basis, to dispose of any issues that remained as an arbitrator. The official issued an Arbitrator's Opinion and Decision. As in Veterans Administration, it is clear from both the Panel's communications to the parties referring the matter to mediation and arbitration and from the language of the Opinion and Decision itself that the opinion and Decision constituted an interest arbitration award. While the parties may have viewed the decision otherwise, we find that the Opinion and Decision was an interest arbitration award under section 7122 of the Statute and not a final action of the Panel under section 7119 of the Statute. 2

B. Failure to Comply - Section 7116(a)(1) and (6) Violation

Likewise, as in our decision in Veterans Administration, we find that the Respondent's refusal to comply with the Arbitrator's Opinion and Decision in this case constitutes an unfair labor practice. In the Veterans Administration case, relying on the Authority's decision in United States Air [ v28 p5 ]

Force, Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio, 15 FLRA 151 (1984), aff'd sub nom. Department of the Air Force v. Federal Labor Relations Authority, 775 F.2d 727 (6th Cir. 1985), we conclude that the failure of the Respondent to comply with the final and binding interest Panel directing the parties to arbitration to resolve their impasse was a violation of section 7116(a)(1) and (6) of the Statute because the Respondent failed to cooperate in Panel procedures. In this case, the Panel referred the parties to interest arbitration to resolve the impasse that arose in their negotiations and a final award in the matter was issued on February 15, 1985. The Respondent refused to comply with that award and did not file exceptions to the award with the Authority under section 7122 of the Statute.

Section 7122 (b) of the Statute provides "If no exception to an arbitrator's award is filed . . . during the 30-day period beginning on the date the award is served on the party, the award shall be final and binding. An agency shall take the actions required by an arbitrator's final award." The Arbitrator's award of February 15, 1985, in this case became final and binding for compliance purposes by operation of section 7122(b) in the absence of timely filed exceptions. Wright - Patterson Air Force Base, 15 FLRA at 153. Moreover, the Respondent is precluded from collaterally attacking the award in this proceeding. As the Authority stated in Wright - Patterson Air Force Base, id. at 153-54, where a party fails to avail itself of the procedure for filing exceptions to an arbitration award within the allotted time period, the award becomes final and binding and an agency is required to take such actions as are required by the award. In such circumstances, a failure to take the actions required by the award constitutes a violation of the Statute. To allow a party which has not filed exceptions to an award to col-laterally attack and defend its failure to implement the award in a subsequent unfair labor practice proceeding on grounds that should have been raised as exceptions under section 7122, such as in this case, would circumvent the procedures provided in section 7122(a) and frustrate Congressional intent with respect to the finality of arbitration awards.

VI. Conclusion

We conclude that the Respondent's failure to comply with the Arbitrator's Opinion and Decision in Case Nos. 84 FSIP 135 and 136 constituted a failure to cooperate in [ v28 p6 ] impasse procedures in violation of section 7116(a)(1) and (6) of the Statute. Therefore, we will order the Respondent to comply with the Opinion and Decision.

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, the Veterans Administration shall:

1. Cease and desist from:

(a) Failing and refusing to cooperate in impasse procedures by refusing to comply with the Arbitrator's Opinion and Decision in Case Nos. 84 FSIP 135 and 136.

(b) In any like or related manner interfering with, restraining, or coercing 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 Statute:

(a) Comply with the Arbitrator's Opinion and Decision in case Nos. 84 FSIP 135 and 136.

(b) Incorporate the terms of the arbitration award in Case Nos. 84 FSIP 135 and 136 into the wording for Article 13, Section 9D7(a)(4) of the local supplement collective bargaining agreement between Defense Logistics Agency, Defense General Supply Center, Richmond, Virginia and Local 2047, American Federation of Government Employees, AFL - CIO, subject to any agreement which may have been reached by the parties concerning any matter contained in the award following its issuance, and until modified in a manner consistent with the Statute.

(c) Post at its facilities 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 Administrator 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 materials. [ v28 p7 ]

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region III, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply with it.

Issued, Washington, D.C., July 23, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v28 p8 ]

               NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
       AND TO EFFECTUATE THE POLICIES OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
           WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail or refuse to cooperate in impasse procedures by refusing to comply with the Arbitrator's Opinion and Decision in case Nos. 84 FSIP 135 and 136.

WE WILL comply with the Arbitrator's Opinion and Decision in Case Nos. 84 FSIP 135 and 136.

WE WILL incorporate the terms of the arbitration award in Case Nos. 84 FSIP 135 and 136 into the wording for Article 13 , Section 9D7(a)(4) of the local supplement collective bargaining agreement between Defense Logistics Agency, Defense General Supply Center, Richmond, Virginia and Local 2047, American Federation of Government Employees, AFL - CIO, subject to any agreement which may have been reached by the parties concerning any matter contained in the award following its issuance, and until modified in a manner consistent with the Statute.

                           ____________________________
                                    (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 any of its provisions, they may communicate directly with the Regional Director, Region III, Federal Labor Relations Authority, whose address is: 1111 18th Street, Room 700, P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone number is: (202) 653-8500. [PAGE]

DEFENSE LOGISTICS AGENCY,
DEFENSE GENERAL SUPPLY CENTER,
RICHMOND, VIRGINIA

             Respondent

   and

LOCAL 2047, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO

             Charging Party

Case No.: 34-CA-50359

William C. Walker, Esquire
   For the Respondent

Ms. Lynnell P. Tyree
   For the Charging Party

Patricia Eanet Dratch, Esquire
   For the General Counsel, FLRA

Before: GARVIN LEE OLIVER
        Administrative Law Judge

DECISION

Statement of the Case

This decision concerns an unfair labor practice complaint issued by the Regional Director, Region III, Federal Labor Relations Authority, Washington, D.C. against the Defense Logistics Agency, Defense General Supply Center, Richmond, Virginia (Respondent), based on a charge filed by Local 2047, American Federation of Government Employees, AFL - CIO (Charging Party or Union). The complaint alleged, in substance, that Respondent violated the Federal Service Labor - Management Relations Statute, 5 U.S.C. 7101 et seq. (the Statute), by refusing to comply with a decision of the Federal Services Impasses Panel requiring the disclosure in job opportunity announcements for unique positions of the benchmarks and quality levels listed in the crediting plans. The complaint alleged that Respondent has failed and refused to comply with the provisions of section 7119(c)(5)(B) [PAGE] and (C) of the Statute 3 and has engaged in unfair labor practices in violation of section 7116(a)(1) and (6) of the Statute.

Respondent's answer admitted the jurisdictional allegations of the complaint, but averred that it was not required to comply with the Panel's decision since it was inconsistent with section 7106 and section 7117 of the Statute.

A hearing was held in Richmond, Virginia. The Respondent, Charging Party, and the General Counsel were represented and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. Neither the General Counsel nor the Union presented any witnesses. Counsel for the General Counsel contended that no facts were in dispute as to the Panel's decision and the Respondent's failure to comply therewith. The General Counsel rested after introducing the formal pleadings, a stipulation concerning the bargaining status of Union, and joint exhibits setting forth the collective bargaining agreement, the Panel decision, and letters establishing Respondent's refusal to comply with the decision. Respondent presented the testimony of Jaquelyn M. Nobel, a personnel staffing specialist, and an opinion of the Office of Personnel Management in its effort to establish that the Panel decision is inconsistent with a Government-wide rule or regulation. Respondent and the Union filed post-hearing briefs.

Based on the entire record, I make the following findings of fact, conclusions of law, and recommendations.

Findings of Fact

Respondent is a primary level field activity within the Defense Logistics Agency (DLA). At all times material herein, the Union represented unit employees employed by Respondent at its Richmond facility. The Respondent and the Union operate under a Master Agreement between DLA and the DLA Council of AFGE Locals (which represents an agencywide consolidated unit) and under a local supplement to that agreement (Joint Ex. 1).

As a result of a negotiation impasse with respect to portions of a local supplement to a national agreement, the Union and Respondent each filed a request for assistance with the Federal Service Impasses Panel (Panel) under section 7119 of the Statute. The Panel recommended that the dispute be referred to its Acting Executive Director for mediation-arbitration. Both parties accepted the recommendation whereby the Acting Executive Director of the Panel was granted authority to (1) mediate with [ v28 p2 ] respect to all outstanding issues and (2) issue a final decision on any that remained unresolved. An issue dealing with flexitime was resolved during mediation; however, the one pertaining to crediting plans was not. The parties, following negotiations consistent with decisions of the Authority, reached a deadlock over the narrow issue of the extent to which their agreement should provide for the content of crediting plans to be disclosed. More specifically, the parties disagreed over the extent to which the benchmarks used by the Respondent in evaluating the quality-of-experience factor in the rating and ranking process of the merit promotion procedure should be disclosed.

Following a hearing and the receipt of posthearing briefs, an Arbitrator's Opinion and Decision was rendered on February 15, 1985 in Defense Logistics Agency, General Supply Center, Richmond, V Local 2047, American Federation of Government Employees, AFL - CIO, Case Nos. 84 FSIP 135 and 136. The Acting Executive Director and Arbitrator accepted the Respondent's position that to adopt the Union's proposals would compromise the selection process in contravention of the Federal Personnel Manual with respect to those positions having 50 or more employees. The Acting Executive Director and Arbitrator noted that with respect to those positions having 50 or more employees:

(1) the parties to the master agreement have agreed that those plans will be developed on an agencywide basis, and (2) barring such exclusion all candidates might not have equal access. The latter is so because the Employer asserts, without contradiction, that it knows of no instance where DLA activities release such crediting plans. Thus, as the Employer argues, the utility of the selection process would be compromised in contravention of the FPM. (footnotes omitted)

However, with respect to those positions unique to the Richmond facility, the Acting Executive Director and Arbitrator noted that locally developed plans may be utilized as provided in the master agreement and concluded that the Union's proposal should be adopted with respect to those positions. The Acting Executive Director and Arbitrator stated, in part, as follows:

This information would be available to all, so no candidate would be disadvantaged. Moreover, to the extent that candidates merit inclusion in the highly qualified group who otherwise would not have been included, human resources management will be improved. This is to the benefit of both parties, while it should not entail an undue burden for the Employer, because it asserts that "most of the bargaining-unit positions" are not unique (Emp. Br. 4). Further, any risks from the potential for candidates' puffing of their [ v28 p3 ] experience should be minimized by the corresponding ease of verification, and the deterrent effect of the wording on the JOAs regarding falsification.

The Acting Executive Director ordered the parties to adopt the following wording for Article 13, Section 9D7a(4) of their local agreement:

KSAs (knowledge, skills, and abilities) will be published in the JOAs (job opportunity announcements) with descriptive statements as appropriate. The descriptive statement(s) following the KSA statements for unique positions with locally developed plans shall be the benchmark(s) and quality levels listed in the crediting plan. (Joint Ex. 2).

By letter dated March 6, 1985 Respondent informed the Union that it would not comply with the Panel's decision. Respondent claimed that to release such information "would jeopardize the fairness of the system and would so expose the method of rating and ranking as to virtually invalidate the rating process." Respondent also asserted that the United States Court of Appeals for the Second Circuit had held that employee consultation and negotiation cannot extend to areas of qualification standards or evaluation methods. (Joint Ex. 4).

The Office of Personnel Management supports Respondent's refusal to implement the Panel decision on the grounds that to do so would violate FPM Supplements 335-1, Subchapters 5 and 6, and 5 C.F.R. Part 300. (Respondent's Ex. 4).

A crediting plan is an evaluation guide used to measure and compare the qualifications of applicants. After the specific knowledge, skills, and abilities (KSAs) for successful performance in a position have been selected, benchmarks are developed for each of those criteria at various levels. The KSAs are subsequently identified in the vacancy announcement; however, the benchmarks have not heretofore been disclosed. These benchmarks, which comprise the core of the crediting plan, are written descriptions of what experience or other relevant factors are necessary to meet each credit level ranging from minimally qualified to highly qualified. Benchmarks are used by raters to assign individual ratings to the responses of candidates. They are used particularly to examine the supplemental questionnaire submitted by applicants. In these questionnaires applicants are asked to describe fully how their experience or potential meets the listed knowledge, skills, and abilities required for the position.

Article 13, Section 8 of the Master Agreement provides for the publication of various items in Job Opportunity Announcements (JOA's). The local supplement provides that among these items will be: [ v28 p4 ] Evaluation factors and the due consideration of weights they will receive in arriving at composite or total scores for ranking purposes.

Article 13, Section 9 of the Master Agreement also provides that candidates must be evaluated on the basis of their knowledge, skills, and abilities, and that a written rating plan must be developed for each position. This plan is to describe "(t)he measurement methods to be used" and "(h)ow the highly qualified group will be determined based on the application of relevant KSAs."

Article 13, Section 9b of the Master Agreement provides that rating plans will be developed agency-wide for positions with 50 or more employees. Unique positions, those will less than 50 employees within the DLA system, at the primary level field activities may have locally developed plans.

While Respondent may create additional unique bargaining unit positions requiring locally developed crediting plans in the future, at the time of the unfair labor practice hearing Respondent had five unique bargaining unit positions which used locally developed crediting plans. 4

Crediting plans including the benchmarks for experience, developed on an agency-wide basis, are not released to employees or unions.

With rare exception when filling bargaining unit positions, Respondent first confines the area of consideration for recruitment to the activity. Thus, the vacancy (job opportunity) announcements are provided first to bargaining unit employees. If, after a vacancy is advertised among bargaining unit employees, no selection is made or the announcement fails to produce a sufficient number of qualified applicants, the area of consideration may be expanded and candidates can be sought from outside the bargaining unit. When candidates are sought from outside the bargaining unit through the Office of Personnel Management (OPM) the benchmarks related to the crediting plan for that vacancy are not provided.

Bargaining unit employees can still compete when the position is advertised beyond the bargaining unit. If a bargaining unit employee with access to the benchmarks applied for the position, the bargaining unit candidate could obtain an unfair advantage over the non-bargaining unit candidate by tailoring his application to the highest quality level [ v28 p5 ] benchmark. If, because of this knowledge, bargaining unit employees score higher than non-bargaining unit employees, they will effectively block Respondent's use of OPM registers as a source of new candidates for these unique positions.

Not all information provided by a candidate in response to a vacancy announcement can be verified by the civilian personnel specialist evaluating the applicants. Experience gained outside the Federal Government frequently cannot be verified because private companies are often reticent to provide information. Further, any experience gained some years prior to the application is difficult to verify because the persons able to provide verification are frequently no longer available.

Another method by which bargaining unit candidates could receive an unfair advantage over non-bargaining unit candidates relates to non-unique positions which are in the same or similar job series as the unique positions. Because these positions are not unique, they will use a DLA-developed crediting plan, and the benchmarks will not be published in the vacancy announcement. Some of the critical elements for these positions will be identical to the critical elements contained in Respondent's unique positions. Where unique position critical elements are identical to DLA critical elements, Respondent frequently uses the DLA benchmarks in developing its crediting plan for the unique position. Thus, if a bargaining unit employee has seen the benchmarks for Respondent's unique positions, he would be able to use this information in responding to a DLA-developed crediting plan for a position that contains some of the unique positions, critical elements. This would give the bargaining unit employee who has seen the benchmarks for a unique position a distinct advantage over those candidates who have not.

Discussion, Conclusions, and Recommendations

The complaint alleges that Respondent, by it refusal to comply with the Panel's decision, has failed to comply with the provisions of section 7119(c)(5)(B) and (C) of the Statute 5 and has engaged in unfair labor [ v28 p6 ] practices in violation of section 7116(a)(1) and (6) of the Statute. 6

The record reflects that the Panel, upon receipt of the parties' request for assistance, recommended that the dispute be referred to its Acting Executive Director for mediation - arbitration and that both parties accepted the recommendation whereby the Acting Executive Director would mediate with respect to all outstanding issues and issue a final decision should any remain unresolved. Thus, the Arbitrator's Opinion and Decision issued on February 15, 1985 by the Panel's Acting Executive Director and Arbitrator was issued pursuant to section 7119(c)(5)(A) of [ v28 p7 ] the Statute, 7 whereby the Panel may recommend Procedures for the resolution of the impasse, and in accordance with the parties' acceptance of these procedures. It is only where t he parties do not accept the Panel's initial recommendations for resolving an impasse or otherwise do not arrive at a settlement that the Panel takes final action pursuant to section 7119(c)(5)(B) and (c) to resolve the impasse. 5 C.F.R. 2471.11 (1983). See also Panel Release No. 234 of March 5, 1985 where the Panel listed four of its won final Decision and Orders issued under section 7119 of the Statute and separately identified the instant Arbitrator's Opinion and Decision issued in this case. Accordingly, assuming that the Arbitrator's Opinion and Decision is otherwise valid, Respondent's failure to comply with the Arbitrator's Opinion and Decision did not constitute a failure to comply with the provisions of section 7119(c)(5)(B) and (c) of the Statute, as alleged, and it will be recommended that this allegation be dismissed. Assuming that the Arbitrator's Opinion and Decision is otherwise valid, Respondent's failure to comply with it would, however, constitute a failure to "cooperate in impasse procedures" and an unfair labor practice under section 7116(a)(6) of the Statute, as alleged in the complaint. 8 [ v28 p8 ] Respondent defends its action in refusing to comply with the decision on the grounds that the imposed contract language is inconsistent with Section 7117(a)(1) of the Statute. 9 Respondent claims that the provision requires Respondent to consent to contract language which is inconsistent with subchapters 5 and 6 of Federal Personnel Manual Supplement 335-1, which it contends is a Government-wide rule or regulation.

Counsel for the General Counsel asserts that Respondent's defense lacks merit because the claimed regulation, the Federal Personnel Manual (FPM) cannot prohibit the release of data otherwise encompassed within Section 7114(b)(4) of the Statute. The General Counsel provided no elaboration or development of this contention as it pertains to this case* In any event, the case does not involve an alleged failure to comply with section 7114(b)(4) of the Statute. It is not necessary to decide whether the referenced portions of the FPM would preclude the disclosure under section 7114(b)(4) of specific crediting plans under appropriate circumstances. See generally U.S. Customs Service, Region VIII, San Francisco, California, 18 FLRA No. 51, 18 FLRA 377 (1985); Department of the Treasury, U.S. Customs Services Region IV. Miami, Florida, 9 FLRA No. 58, 19 FLRA 421 (1985).

Counsel for the General Counsel also argued that the Panel has fully considered Respondent's arguments in reaching its decision. The only portions of the administrative record before the arbitrator which were made a part of the record in this case were the Arbitrator's Opinion and Decision and the parties' collective bargaining agreement which were made joint exhibits. The Union's brief to the arbitrator was incorporated by reference in the Union's post-hearing brief. No other portions of the administrative record before the arbitrator were made a part of the record in this case. Therefore, it cannot be concluded, as contended by the General Counsel, that the arbitrator fully considered the evidence and arguments presented here, regardless of what the significance of such a determination might be from the standpoint of the scope of review of the [ v28 p9 ] Arbitrator's decision. compare the record presented by the General Counsel in State of California National Guard, 8 FLRA 54, at 58-67 (1982), decision and order on remand 15 FLRA 479 (1984).

The Union asserts that if the Union's proposed language were inconsistent with a Government-wide rule or regulation, the Respondent should have declared the Union's proposal nonnegotiable at the bargaining table. The Union contends that it is not appropriate to raise this issue at a hearing on alleged noncompliance with a Panel decision. The Union also argues that it is important that employees be enlightened as to all aspects of a promotion action so they may fairly compete with one another to bring to the Government the best qualified candidates. The Union states that when the Respondent "squirrels away" the crediting plan, employees rightly or wrongly believe the system is subject to manipulation by which the crediting plan could be leaked to favorites to the detriment of others.

With respect to the union's position that the Respondent should have declared the Union's proposals to be nonnegotiable at the bargaining table, it appears that the parties were negotiating the extent of disclosure of crediting plans consistent with the then extant decisions of the Authority. See National Treasury Employees Union and NTEU Chapters 153, 161 and 183 and U.S. Customs Service, Region II, 11 FLRA 209 (1983), enf. denied, sub nom. U.S. Customs v. FLRA, 739 F.2d 829 (2d Cir., 1984); National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, Washington, D.C., 11 FLRA 247 (1983), vacated sub nom. Department of the Treasury, U.S. Customs Service v. FLRA, 762 F.2d 1119 (D.C. Cir., 1985). Compare The Montana Air Chapter of Association of Civilian Technicians and U.S. Department of the Air Force, Montana Air National Guard, 19 FLRA No. 112, 19 FLRA 946 (1985). In NTEU and NTEU, Chapters 153, supra, the Authority held, in part:

(T)he 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. Accordingly, without reaching the question of whether that provision constitutes a Government-wide rule or regulation, subchapter S6 does not bar negotiation of Proposals 1 and 2. (footnote omitted). [ v28 p10 ] The Authority has held that an agency can defend its refusal to comply with a decision of the Panel on the grounds that the provisions imposed on the parties by the Panel are contrary to the Statute or any other applicable law, rule or regulation. If the agreement provisions imposed by the Panel are found to be inconsistent with applicable law, rule or regulation, they would not be enforceable, and the agency would not be found to have committed an unfair labor practice in refusing to cooperate in impasse procedures and decisions. Cf. American Federation of Government Employees, AFL - CIO v. FLRA, No. 84-1512 (D.C. Cir., Dec. 13, 1985); U.S. Department of Army, Headquarters, and Darcom Hq., 17 FLRA No. 19; 17 FLRA 84 (1985), pet. for review filed, No. 85-1260 (D.C. Cir., 4/26/85); Decision on Request for General Statement of Policy or Guidance, 16 FLRA 5 9 (1984); National Federation of Federal Employees, Local 1332, 5 FLRA 599, 601 (1981).

As to Respondent's argument that the Arbitrator's order is inconsistent with a Government-wide rule or regulation under section 7117(a)(1) of the Statute, subchapters 5 and 6 of the FPM Supplement 335-1 provide, in relevant part, as follows:

Subchapter S5. Administration of Evaluation Procedures S5-3. Providing information to candidates.

a. Candidates must be provided information about the job requirements and rating procedures used to evaluate them unless, in providing such information, an unfair advantage would be given to some candidates or unless the utility of the selection procedure would be otherwise compromised. At the minimum, information provided must include the knowledges, skills, abilities, and other candidate characteristics (KSAO's) to be evaluated and the method or type of procedure by which they will be evaluated. The intent of this provision is to (a) enable candidates to provide responses which reflect the most relevant aspects of the evaluation process, and (b) generally foster confidence and support of employees in the merit promotion program.

b. Flexibility exists in the form and manner in which information on job requirements and rating procedures is made available. This may be carried out, for example, through inclusion of such information in or with vacancy announcements. However provided, such information must be equally available to all candidates.

c. Crediting plans and rating procedures for the evaluation of candidates' experiences should not be released as a means of providing information about job requirements if, in the agency's view, such release [ v28 p11 ] would undermine the fairness and validity of the selection procedure. In such instances, information may be extracted from crediting plans to meet the requirements of subparagraph a, above. (See also S6-1.)

Subchapter S6. Safeguarding Examination Materials. S6-1. Basic Principles

a. Individuals responsible for the personnel measurement program must clearly identify those examination materials (such as test materials, rating guides, or crediting plans) which require security and control, and ensure that proper security and control are maintained. instructions must be issued to maintain the security and control of examination materials which, if exposed to unauthorized persons, might provide unfair advantage to some candidates or otherwise compromise the utility of the selection procedure. At a minimum, the instructions must cover procedures to be followed during development, printing, storage, distribution, and destruction. Material covered by the instructions must not be exposed to any persons, including management officials, members of employee organizations, or non - Federal personnel who do not have an official need to see the material. No evaluation procedure subject to security and control may be administered to an employee who has had access to the covered material. (This provision is not intended to apply to appropriate retesting situations.)

b. The following are examples of materials which, when used operationally in internal selection, shall be controlled and safeguarded because their release would be detrimental to the validity and fairness of the evaluation process;

- aspects of procedures for evaluating the past behavior of candidates (such as scoring keys for biographical information blanks or examples of behavior used as criteria for the rating of information about experience) if candidates' responses are not readily verifiable.

c. The agency is responsible for determining what information is not releasable and must be prepared to defend its decision. [ v28 p12 ] The content of crediting plans and rating procedures can be released consistent with subchapters S5 and S6 of FPM Supplement 335-1 only when release would not provide unfair advantage to some candidates or compromise the utility of the selection process.

The Panel order in this case would require Respondent to release the benchmark and quality levels listed in the crediting plan for all unique positions with locally developed plans. The Respondent has demonstrated that such release would create an unfair advantage and compromise the selection process in certain circumstances. This would occur most significantly where management decides to expand the area of consideration to consider candidates from other appropriate sources. See section 7106(a)(2)(C). The record reflects that outside candidates recruited through OPM would not have access to the benchmarks. Thus, the premise supporting the Arbitrator's Opinion and Decision, that "(t)his information would be available to all, so no candidate would be disadvantaged," would not be true in all cases. Bargaining unit candidates with access to the benchmarks could obtain an unfair advantage by tailoring their applications to the highest quality level benchmarks while outside candidates would have no general knowledge of the benchmarks. Respondent has also demonstrated that if candidates are provided a position's benchmarks in every case, the inability to verify the claimed experience would significantly jeopardize the selection process. Respondent demonstrated that in many instances it is not possible to verify the experience. Thus$ the record does not support "the ease of verification" found by the Arbitrator.

Since, in certain circumstances, the Arbitrator's Opinion and Decision would prevent the agency from complying with subchapters S5 and S6 of FPM Supplement 335-1, it must be decided whether these requirements constitute a "Government-wide rule or regulation" within the meaning of the Statute. Section 2301 of Title 5 of the U.S. Code establishes merit system principles that govern all Federal personnel management. These principles require, among other things, that selection and advancement in the Federal service should be ". . . determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity." 5 U.S.C. 2301(b)(1). Section 1103(a)(5)(A) of Title 5 vests in the Director of the Office of Personnel Management (OPM) the authority to execute, administer and enforce ". . . the Civil Service rules and regulations of the President and the Office and the laws governing the Civil Service. . ." Sections 1104(a)(1) and (2) give to the Director of OPM the authority for personnel management functions, including authority for competitive examinations. They also permit the Director to delegate this authority to agencies employing persons in the competitive service. Sections 1104(b)(1) and (3) of that title require the Director of OPM to establish standards which shall apply to the activities of any agency delegated authority under 5 U.S.C. 1104(a)(2) and empower the Director to prescribe regulations to assure compliance with these standards. [ v28 p13 ] OPM has exercised its authority to delegate to agencies its personnel management functions relative to promotion and internal placement. 5 C.F.R. 335.102. Among other things, OPM required agency promotion programs to conform with the standards and requirements of OPM. 5 C.F.R. 335.103. To ensure that agencies follow merit system principles when exercising this delegated authority to promote, OPM issued requirements governing promotions and internal placements in Chapter 335 of the FPM. This includes the above requirements governing the release of crediting plan benchmarks developed by OPM and agencies (FPM Chapter 335, Subchapters 5 and 6). The requirements are applicable to Federal civilian employees in the competitive service within the executive branch of the Government. The Merit Systems Protection Board has held that FPM Supplement 335-1, Subchapter 6 "is rationally related to the purpose of preventing unfair advantage to any competing applicant or employee." National Treasury Employees Union v. Devine, Director, OPM, 8 MSPB 294, 295 (1981). Therefore, it is concluded that subchapters S5 and S6 of FPM Supplement 335 constitute a "Government-wide rule or regulation" within the meaning of the Statute. Cf. NTEU and Department of the Treasury, U.S. Customs Service, Washington, D.C., supra, 11 FLRA at 249-250.

Since, in certain circumstances, the agreement provision imposed by the procedures of the Panel would prevent the agency from complying with a Government-wide rule or regulation, it is inconsistent with a Government-wide rule or regulation and is outside the duty to bargain under section 7117(a)(1) of the Statute. Consequently, the Respondent was not bound to comply with it.

The General Counsel has failed to allege or establish that the provision imposed by the procedures of the Panel was not contrary to the Statute or any other applicable law, rule, or regulation. Cf. U.S. Department of the Army, Headquarters, and Darcom, Hq., 17 FLRA No. 19, 17 FLRA 84 (1985). Accordingly, a preponderance of the evidence does not establish that Respondent committed an unfair labor practice by refusing to cooperate in impasse procedures and decisions as alleged.

Based on the foregoing findings and conclusions it is recommended that the Authority issue the following Order:

ORDER

It is hereby Ordered that the Complaint in Case No. 34-CA-50359 be, and it hereby is, DISMISSED.

GARVIN LEE OLIVER
Administrative Law Judge

Dated: January 29, 1986
       Washington, D.C.

FOOTNOTES

Footnote 1 The Judge noted that the complaint did not allege a failure to comply with a final and binding award of an arbitrator under section 7122(b) of the Statute and that he therefore expressed no opinion as to the applicability of that provision.

Footnote 2 See Department of the Air force, Flight Test Center, Edwards Air Force Base, California and Interdepartmental Local 3854, American Federation of Government Employees, AFL-CIO, 21 FLRA No. 61 (1986), in which the Authority determined, among other things, that an arbitrator's opinion and decision issued by a Panel Member resulting from Panel-directed interest arbitration was an arbitration award and not a final action of the Panel under section 7119 of the Statute. Any argument the Respondent wished to raise concerning the Panel's jurisdiction in this matter could have been raised in exceptions to the award filed under section 7122 of the Statute.

Footnote 3 Paragraph 8 of the complaint refers to section 7119(5)(B)(C) of the Statute. This inadvertent error is hereby corrected.

Footnote 4 The Union submitted as attachment two to its brief copies of letters purporting to show that there are, or will be, more than five locally developed crediting plans. The attachment has not been considered inasmuch as it was not offered at the hearing, nor was any explanation offered for the failure to present these data at the hearing. (See Tr. 4).

Footnote 5 Section 7119(c)(5)(B) and (C) of the Statute provides: 7119. Negotiation impasses; Federal Service Impasses Panel (c)(5)(B) If the parties do not arrive at a settlement after assistance by the Panel under subparagraph (A) of this paragraph, the Panel may - (i) hold hearings; (ii) administer oaths, take the testimony or deposition of any person under oath, and issue subpenas as provided in section 7132 of this title; and (iii) take whatever action is necessary and not inconsistent with this chapter to resolve the impasse. (C) Notice of any final action of the Panel under this section shall be promptly served upon the parties, and the action shall be binding on such parties during the term of the agreement, unless the parties agree otherwise.

Footnote 6 Section 7116(a)(1) and (6) of the Statute provides: 7116. Unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency - (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; (6) to fail or refuse to cooperate in impasse procedures and impasse decisions as required by this chapter(.)

Footnote 7 Section 7119(c)(5)(A) of the Statute provides: 7119. Negotiations impasses; Federal Service Impasses Panel (c)(5)(A) The Panel or its designee shall promptly investigate any impasse presented to it under subsection (b) of this section. The Panel shall consider the impasse and shall either - (i) recommend to the parties procedures for the resolution of the impasse; or (ii) assist the parties in resolving the impasse through whatever methods and procedures, including factfinding and recommendations, it may Consider appropriate to accomplish the purpose of this section.

Footnote 8 It is noted that the complaint does not allege a failure to comply with a final and binding award of an arbitrator under section 7122(b) of the Statute. Accordingly, no opinion is expressed as to whether this section would be applicable. See generally United States Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 15 FLRA 151 (1984), aff'd sub nom. Department of the Air Force, Ohio v. FLRA 775 F.2d 727 (6th Cir., 1985).

Footnote 9 Section 7117(a)(1) of the Statute provides: 7117. Duty to bargain in good faith; compelling need; duty to consult (a)(1) Subject to paragraph (2) of this subsection, the duty to bargain in good faith shall, to the extent not inconsistent with any Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any rule or regulation only if the rule or regulati