[ v13 p631 ]
The decision of the Authority follows:
13 FLRA No. 105 DEPARTMENT OF THE TREASURY, U.S. CUSTOMS SERVICE, REGION VIII, SAN FRANCISCO, CALIFORNIA Respondent and NATIONAL TREASURY EMPLOYEES UNION 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/ ORDER 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 Regulations. /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 chapter. /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 bargaining(.) /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 official. /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).