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13:0631(105)CA - Treasury, Customs Service, Region VIII, San Francisco, CA and NTEU -- 1984 FLRAdec CA

[ v13 p631 ]
The decision of the Authority follows:

 13 FLRA No. 105
 Charging Party
                                            Case No. 9-CA-842
                            DECISION AND ORDER
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Case to the Federal Labor Relations
 Authority" in accordance with section 2429.1(a) of the Authority's Rules
 and Regulations.
    Upon consideration of the entire record in this case, including the
 parties' stipulation of facts and accompanying exhibits, briefs
 submitted by the General Counsel, the Charging Party, the Respondent,
 and the Office of Personnel Management (OPM) as amicus curiae, /1/ and
 the replies to the amicus curiae brief submitted by the General Counsel
 and the Charging Party, /2/ the Authority finds:
    The complaint herein alleges that the Respondent violated section
 7116(a)(1), (5) and (8) of the Federal Service Labor-Management
 Relations Statute (the Statute /3/ by failing to comply with the
 requirements of section 7114(b)(4) of the Statute /4/ by refusing to
 furnish necessary and relevant information requested by the National
 Treasury Employees Union (the Union) in order for it to determine
 whether to grieve on behalf of an employee in a promotion action.
    Pursuant to Vacancy Announcement No. R-41-80 KV, unit employee Harry
 Williams submitted an application for the position of Customs Inspector,
 GS-1890-5.  After Williams was not selected for the promotion, he sought
 the assistance of Union Steward Raymond Laing to grieve this action.  On
 November 19, 1980, Laing requested information from the Respondent
 concerning the subject merit promotion action so that he could
 investigate the possibility of filing a grievance on behalf of Williams.
  The list of items requested included a copy of the crediting plan used
 to rand the applicants for the subject vacancy, /5/ as well as other
 documents used or generated by the Evaluation Board.  On December 10,
 1980, the Union filed a grievance under the parties' negotiated
 agreement over the Respondent's failure to respond to its request for
 information.  The grievance alleged that management's "failure to
 provide this information is a blatant breach of the contract . . .," and
 specifically requested as a remedy "that the information requested in
 our letter of November 19, 1980 be immediately forthcoming." On December
 29, 1980, the Respondent provided to Laing all of the documents used or
 generated by the Evaluation Board, but refused to provide a copy of the
 crediting plan, citing as the basis for its refusal Article 17, Section
 7(D) of the parties' negotiated agreement, which provides that:  "All
 existing crediting plans will be disclosed to the union when and if
 appropriate authorities hold that it is not improper to do so." On
 January 5, 1981, Laing requested that the Respondent reconsider its
 decision not to disclose the subject crediting plan.  On January 16,
 1981, the Respondent replied, reiterating the reasons why it would not
 disclose the crediting plan.  The Union did not take the grievance to
 the next step of the parties' negotiated grievance procedure.
 Thereafter, the charge in this proceeding was filed by the Union.
          Section 7116(d) of the Statute provides in pertinent part:
          (I)ssues which can be raised under a grievance procedure may,
       in the discretion of the aggrieved party, be raised under the
       grievance procedure or as an unfair labor practice under this
       section, but not under both procedures.  (Emphasis added.)
    In the Authority's view, the issue which is the subject matter of the
 instant complaint is the same as that which is the subject matter of the
 grievance;  that is, the Respondent's failure to disclose the subject
 crediting plan.  Thus, the Authority finds that the Union's prior
 invocation of the grievance procedure under the parties' negotiated
 agreement regarding the non-release of information, including the
 subject crediting plan, constituted an election of that procedure under
 section 7116(d) of the Statute, thereby precluding such issue from being
 raised subsequently as an unfair labor practice.  Internal Revenue
 Service, Chicago, Illinois, 3 FLRA 479(1980).  See also Department of
 the Air Force, Griffiss Air Force Base, Rome, New York, 12 FLRA No. 50
 (1983), wherein the Authority adopted the Judge's conclusion that,
 pursuant to section 7116(d) of the Statute, a grievance filed three days
 before the charges underlying a portion of the unfair labor practice
 complaint precluded further processing of the latter inasmuch as both
 the grievance and the charges alleged that management had violated the
 parties' agreement by recouping certain monies from the current amount
 of withheld union dues in management's possession and therefore the
 issues appeared to be the same.
    Accordingly, the Authority shall dismiss the instant complaint,
 without passing upon whether management is obligated under section
 7114(b)(4) of the Statute to disclose crediting plans to the Union in
 appropriate circumstances.  /6/
    IT IS ORDERED that the complaint in Case No. 9-CA-842 be, and it
 hereby is, dismissed in its entirety.
    Issued, Washington, D.C., January 13, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ OPM was granted permission to participate in this proceeding as
 amicus curiae pursuant to section 2429.9 of the Authority's Rules and
    /2/ The replies by the General Counsel and the Charging Party both
 urge the Authority to reject or disregard positions contained in the
 amicus curiae brief that are based on questions of fact outside the
 stipulated record.  In reaching its decision in the instant case, the
 Authority has considered only facts contained in the stipulated record.
    The Respondent subsequently submitted a Motion to File Supplemental
 Brief, attaching thereto a Supplemental Brief that asserted the
 relevance and significance of an FPM Letter which was issued by OPM
 after the period for filing briefs had passed.  Both the General Counsel
 and the Charging Party filed oppositions to the Respondent's motion.  In
 view of the disposition of the instant case, the Authority finds it
 unnecessary to rule on the Respondent's motion or to consider its
 Supplemental Brief.
    /3/ Section 7116(a)(1), (5) and (8) of the Statute provides:
    (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;
                                  * * * *
    (5) to refuse to consult or negotiate in good faith with a labor
 organization as required by this chapter;
                                  * * * *
    (8) to otherwise fail or refuse to comply with any provision of this
    /4/ Section 7114(b)(4) of the Statute provides:
    (b) The duty of an agency and an exclusive representative to
 negotiate in good faith under subjection (a) of this section shall
 include the obligation--
                                  * * * *
    (4) in the case of an agency, to furnish to the exclusive
 representative involved, or its authorized representative, upon request
 and, to the extent not prohibited by law, data--
    (A) which is normally maintained by the agency in the regular course
 of business;
    (B) which is reasonably available and necessary for full and proper
 discussion, understanding, and negotiation of subjects within the scope
 of collective bargaining;  and
    (C) which does not constitute guidance, advice, counsel, or training
 provided for management officials or supervisors, relating to collective
    /5/ When a vacancy is to be filled under the Merit Promotion Plan in
 Region VIII of the U.S. Customs Service, the Customs Career Evaluation
 Board utilizes a crediting plan for each vacancy under consideration.
 The crediting plan is used to evaluate the applicant's experience,
 training, achievements, supervisory appraisals of performance, and
 supervisory appraisals of potential.  The crediting plan in the instant
 case is a five page document which establishes the amount of credit
 given to an applicant for each item listed as primary criteria in the
 Vacancy Announcement.  The crediting plan describes the degree of
 knowledge, skills, abilities, and personal characteristics which justify
 an A, B, or C rating for each of the primary criteria.  The letter
 rating for each is translated to a numerical value and totaled.  The
 applicants are ranked and those with the highest scores are placed on
 the Best Qualified List.  The list is then forwarded to the selecting
    /6/ But see National Treasury Employees Union and NTEU Chapters 153,
 161 and 183 and U.S. Customs Service, Region II, 11 FLRA No. 47 (1983),
 appeal;  docketed, No. 83-4056 (2d Cir. April 1, 1983), involving the
 same parties, wherein the Authority noted that "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." See also
 National Treasury Employees Union and Department of the Treasury, U.S.
 Customs Service, Washington, D.C., 11 FLRA No. 52 (1983), appeal
 docketed, No. 83-1355 (D.C. Cir. April 4, 1983).