19:0421(58)CA - Treasury, Custom Service, Region IV, Miami, FL and NTEU -- 1985 FLRAdec CA
[ v19 p421 ]
The decision of the Authority follows:
19 FLRA No. 58 DEPARTMENT OF THE TREASURY UNITED STATES CUSTOMS SERVICE REGION IV, MIAMI, FLORIDA Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party Case No. 43-CA-698 DECISION AND ORDER The Chief Administrative Law Judge issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel and the Charging Party filed exceptions to the Judge's Decision and the Respondent filed an opposition to both exceptions. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing /1/ and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions and recommended Order. Following notice to the Charging Party (the Union) of the Respondent's intent to change its practice of routinely furnishing the Union with crediting plans with requested in connection with grievances, the Union requested bargaining as to the Respondent's decision to change such practice as well as the impact and implementation of that decision. The Union also requested that the Respondent furnish it with all crediting plans used by the Respondent in the filling of vacancies in Region IV. The Respondent refused both requests, /2/ and the Union filed an unfair labor practice charge alleging that the Respondent violated section 7116(a)(1), (5) and (8) of the Statute by such refusal. The Acting Regional Director then issued a complaint in this matter. Thereafter, the parties entered into a Settlement Agreement which was approved by the Regional Director on March 23, 1981. On April 1, 1981, the Union renewed a pre-Settlement Agreement request for a crediting plan which had been used by Respondent in filling a vacancy. The original request had been made and denied by the Respondent in connection with a contemplated grievance over the nonselection of unit employee Violet Rodriguez. /3/ The Respondent refused the Union's renewed request for the crediting plan and the Union informed the Regional Director that it considered this a breach of the parties' Settlement Agreement. After soliciting the Respondent's position on the Union's allegation, the Acting Regional Director determined that the Respondent's refusal constituted a breach of the Settlement Agreement. The Acting Regional Director set aside the Settlement Agreement and reissued the complaint in its original form. After a hearing on the matter, the Judge, noting that the Union's April 1, 1981 request for the Rodriguez crediting plan was the only allegation of non-compliance with the Settlement Agreement presented to the Regional Director, concluded, contrary to the Acting Regional Director, that the Respondent's denial of the April 1, 1981 request did not constitute a breach of the Settlement Agreement. The Judge found that the April 1, 1981 request was the same request made by the Union on November 1, 1980, at a time when the parties had agreed to resolve disputes over the disclosure of crediting plans through the parties' negotiated grievance and arbitration procedures. He found that the Respondent's refusal to furnish the crediting plan could not form the basis for a breach of the Settlement Agreement, and therefore concluded that the Acting Regional Director should not have set aside the Settlement Agreement and reissued the complaint. Accordingly, he dismissed the complaint. The Authority agrees with the Judge's finding that the Respondent's denial of the Union's April 1, 1981 request was the only instance of non-compliance with the Settlement Agreement alleged by the Union; that the request was merely a renewal of a request that was made by the Union and denied by the Respondent prior to the filing and subsequent settlement of the complaint; and that the Respondent's refusal of the April 1, 1981 request was therefore not a breach of the Settlement Agreement. The Authority thus concludes, in agreement with the Judge, that the Acting Regional Director should not have set aside the Settlement Agreement and reissued the complaint. /4/ Accordingly, the Authority concludes that the Respondent did not violate the Statute and shall order that the complaint be dismissed. /5/ ORDER IT IS ORDERED that the complaint in Case No. 43-CA-698 be, and it hereby is, dismissed. Issued, Washington, D.C., July 31, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 43-CA-698 Linda J. Norwood, Esq. For the General Counsel Gary Landsman, Esq. /6/ For the Respondent Keith Poole, Esq. For the Charging Party Joseph A. Morris, Esq. Stuart M. Foss, Esq. James J. Hicks, Esq. For Office of Personnel Management, Amicus Curiae Brief Before: JOHN H. FENTON Chief Administrative Law Judge DECISION Statement of the Case This case arose pursuant to the Federal Service Labor-Management Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq., as a result of an unfair labor practice complaint filed on January 14, 1981, by the Regional Director, Region IV, Federal Labor Relations Authority. That complaint was withdrawn on March 23, 1981, upon the approval of a Settlement Agreement on March 10, 1981. On July 31, 1981, the Regional Director issued an Order Setting Aside Settlement Agreement and Reissuing Complaint. The basic issue is whether Respondent violated Sections 7116(a)(1), (5) and (8) of the Statute by discontinuing its practice of releasing to the Union, for grievance representation purposes, the "crediting plans" which it uses in establishing the relative merit of candidates for promotion. Respondent (and OPM in its amicus brief) defends on the ground that law and regulation prohibit the disclosure of such materials to the Union as well as others having no official need to know, because such disclosure would give unfair advantage to some candidates or otherwise compromise the selection process. Respondent presses eleven other arguments in its defense, including contentions that the Regional Director was without authority to set aside a Settlement Agreement without affording it a hearing respecting the alleged breach thereof; and that the National Agreement executed after these alleged unfair labor practices (but before the Settlement and claimed breach) constitutes, in effect, a waiver of any right to disclosure and of the right to seek disclosure through the unfair labor practice route. This matter was heard in Jacksonville, Florida, on May 5, 1982. All parties were represented by counsel and were afforded full opportunity to adduce evidence, examine and cross-examine witnesses and argue orally. Upon consideration of the entire record, I make the following findings of fact, conclusions of law and recommended order. Findings of Fact The Union has been, at all material times, the exclusive bargaining representative of Respondent's employees, and party to successive collective bargaining agreements with Respondent. For at least three years, until November, 1979, Respondent routinely furnished the Union, for purposes of processing merit promotion grievances, with unedited or "unsanitized" copies of crediting plans. /7/ On October 30, 1979, Labor Relations Chief Tom Ross wrote Union attorney Keith Poole announcing his intention to cease the practice of "erroneously" providing information about crediting plans, and acknowledging his willingness to negotiate on the so-called impact and implementation of the change. Poole responded on November 5, by proposing that Respondent continue to provide such materials and requesting that it negotiate concerning the substance as well as the impact and implementation of the proposed change. On November 16, Ross replied that Poole's proposal was not negotiable, reiterating his October 30 advice that this was required by security controls applicable to crediting plans pursuant to Customs' interpretation of FPM Chapter 294, Subchapter 5, and Chapter 337, Subchapter 3. Those regulations in essence precluded release of such materials to the public or competitors, providing that they "may only be made available to persons participating in job element examining in an official government capacity." Respondent ceased providing such plans on November 12. The second refusal to provide crediting plans, which is encompassed by this complaint, occurred on November 19, 1979, in response the Union's request for all crediting plans ("complete with the typical examples used in assessing the various quality levels") used in the Region (G.C. Exh. 13). Respondent's Director of Personnel Management refused the request on the ground that Government wide regulations specifically prohibited the release of such materials (Resp. Exh. 14). It has not made available an unedited plan since that time, although it claims that it has shifted from a policy of blanket non-disclosure to a case-by-case determination whether disclosure is consistent with law and regulation. The original unfair labor practice charge was then filed on November 28, 1979. It is perhaps useful to stop the narrative of events at this juncture and focus on the nature of a crediting plan. It is an elaborate and complicated scheme for providing guidance to, and regularizing and documenting the deliberations of, evaluation boards or panels which must assess the relative qualifications of candidates for merit promotion. The Federal Labor Relations Authority recently described crediting plans as follows: /8/ The qualifications of eligible candidates are evaluated on the basis of predetermined criteria by agencies using various methods in accordance with legal and regulatory requirements under guidelines promulgated by OPM. The criteria provide the standards against which the candidates' qualifications are measured. One method of guiding the measurement process, avoiding inconsistencies in the ratings assigned by various raters, and providing documentation of the rating process is through the use of "crediting plans" such as those involved in the present case. A crediting plan is a set of criteria which reflect the specific knowledge, skills, abilities, and other characteristics which management has determined are required for the successful performance of the job to be filled. Such a plan provides for each criterion, at each crediting level, definitions and/or examples of relevant factors such as experience, training, and education. The raters compare the candidates' backgrounds with these crediting level definitions and examples to measure the extent to which each candidate possesses the knowledge, skills, abilities and other characteristics required for the position as reflected in the criteria of the crediting plan. Subchapter S6-1 of FPM Supplement 335-1 instructs agencies to identify those examination materials, including crediting plans, which require security controls so as to prevent their disclosure to unauthorized persons and the risk that such disclosure "might provide an unfair advantage to some candidates or other wise compromise the utility of the selection procedure . . . . (It further instructs agencies that) material covered by the instructions (to panel members) 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 . . . . " OPM, in an effort to avoid alleged contamination of the rating process, has advised Respondent not to divulge certain portions of crediting plans. Examples are the questions asked and factors to be rated in an interview, and detailed information about the scoring system used in evaluating a candidate's claimed experience, especially where such claims are difficult or impossible to verify and the candidate who knows the "answers" sought can allegedly tailor or slant his application to the disadvantage of those not privy to such information. /9/ Back to the procedural history. The unfair labor practice charges filed in November 1979 did not lead to a formal complaint until January 14, 1981. In the interim Customs and the Union negotiated a new national agreement which became effective on June 30, 1980. That contract dealt with the nation-wide disclosure problem, of which this case is a small part, in Article 17, devoted to Merit Promotion. Thus, Section 7 provides that: B. The employer will develop numerical crediting plans for use by Evaluation Boards in measuring the extent to which candidates possess designated evaluation criteria as set forth in the vacancy announcement. The crediting plans will include various definitions or examples of experience, training, education, personal characteristics and any other relevant factors at each rating level. The applicant's background will be compared against the crediting plan definitions for each of the evaluation criteria to assess the degree to which he possesses the elements being evaluated. C. In developing crediting plans, the employer will negotiate with the union to the extent required by law. Such negotiations, if they take place, shall be carried out in accordance with the provisions of Article 36 (Supplemental Agreements). D. All existing crediting plans will be disclosed to the union when and if appropriate authorities hold that it is not improper to do so. E. The crediting plans referred to in this section shall serve as the sole basis for the Evaluation Board assessment of the applicant's potential to serve in the vacant position. In addition, Section 17 provides in relevant part: A. In processing or investigating grievances related to promotion actions taken pursuant to the provisions of this article, the grievant or his union representative, upon request, will be provided with the evaluative materials utilized or generated by the Evaluation Board in rating and ranking qualified candidates, subject to the following conditions: (1) release of documents or materials is not precluded by law or the regulations of appropriate authority; (2) such materials or documents shall be properly sanitized to protect the privacy of applicants and Board Members involved in the promotion actions; . . . . B. Challenges to the employer's actions in implementation of sub-section A above shall be resolved under the grievance and arbitration provisions provided in this agreement. The unfair labor practice complaint was settled in mid-March 1981. The Settlement Agreement (G.C. 1(h)), which was approved by the Regional Director on March 23, disposed of the alleged unfair labor practices with Respondent's pledge that: WE WILL, consistent with our past practice as it existed prior to October 30, 1979, upon request, provide the National Treasury Employees Union copies of crediting plans which are normally maintained in the regular course of business, reasonably available, and necessary for full and proper discussion of subjects within the scope of collective bargaining and when not prohibited by law or governing regulation. WE WILL rescind the letter dated October 30, 1979, wherein we advised the National Treasury Employees Union that we would not provide crediting plans upon request by the National Treasury Employees Union. WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights under the Statute. Meanwhile, on the day before the Union signed the Settlement Agreement, and four days before Respondent did, the Director of Customs' Office of Human Resources sent a memo to all personnel officers on the subject of releasing crediting plans (Agency Exh. 13). Thus, unsurprisingly, was set the stage for an argument over the meaning of the Settlement Agreement before it was even approved. /10/ Referencing contract Article 17, Section 7(D), the U.S. Code and the FPM Supplement 335-1, the Director reaffirmed guidance received from OPM: that disclosability decisions were to be made on a case-by-case basis, that release was appropriate only when it did not provide unfair advantage to some candidates or compromise the utility of the selection process, and that all crediting plans will be released "at such point as higher authority determines that all . . . plans are releasable." Thus, ostensibly at least, Customs abandoned its practice of flatly refusing all such requests, and commenced a policy of ad hoc determinations. On April 1, the Union requested a crediting plan in connection with the "incipient" grievance of one Violet Rodriguez. The request was refused on April 13. Reciting the litany of protecting the integrity of the selection process, the determination was made that disclosure of the unsanitized plan would be, "in this case," inappropriate. Assurance was made that, were a prohibited personnel practice identified, necessary access would be granted "to authorized persons so long as appropriate protective procedures were followed." (Agency Exh. 4). The Union complained that such conduct violated the Settlement Agreement, and the Regional Office of FLRA sought Respondent's position on the allegation of non-compliance. Respondent provided an elaborate statement of the laws and governing regulations which it said justified nondisclosure under the very terms of the Settlement Agreement signed by the Union and approved by the Regional Director (G.C. Exh. 7). On July 31, 1981, the Acting Regional Director ordered the Agreement set aside and reissued the Complaint. On August 20, Respondent filed its Answer and a Motion to Dismiss. It noted that it had never received a statement or rationale for the decision to set aside the Settlement, argued its entitlement to a "due process hearing" on the issue of alleged non-compliance, before being called upon to defend against pre-settlement unfair labor practice allegations, and requested that its Motion be referred to the Chief Administrative Law Judge. On August 28, Counsel for the General Counsel opposed the Motion, arguing specifically that the Statute and Regulations contemplated no such hearing, but in language broad enough to comprehend a lack of the right to such a hearing at any stage. The matter was referred to me, and I denied the motion without prejudice to Respondent's right to renew it at the hearing. It was renewed (Tr. 49) and the General Counsel conceded that it had to present evidence of non-compliance "as a jurisdictional matter" (Tr. 29). Discussion Before confronting the question whether the allegations of the Complaint enjoy the requisite legal and factual support, it is first necessary to determine that the Regional Director had authority to set aside the Settlement Agreement on the ground it had been breached, and was therefore free to reissue Complaint. It is clear that Respondent refused to furnish a crediting plan in connection with the "incipient" grievance of Violet Rodriguez within a few weeks of entering into the Settlement Agreement. Respondent also refused requests for such materials after the Settlement was executed in connection with an Aiello grievance (G.C. Exhs. 23 and 24) and another request (G.C. Exh. 16). However, considerations of due process and fairness persuade me that the determination whether compliance with the Settlement occurred should be based on the Rodriguez matter only, i.e., that it would be inappropriate to dwell on matters of arguably litigated noncompliance, which were never clearly brought to Respondent's attention as breaches of the Agreement. I come to this conclusion for the following reasons. It was the Rodriguez matter which prompted a complaint of noncompliance from the Union, and a request from the Regional Office for a statement of Respondent's position. Thereafter the Settlement Agreement was set aside and the Complaint simultaneously reissued in its original form, i.e., without reference to any incident alleged to constitute a new unfair labor practice and/or a breach of the Settlement. Respondent then filed a Motion to Dismiss the Regional Director's Order Setting Aside Settlement Agreement and Reissuing Complaint. It argued, erroneously, entitlement to an evidentiary hearing on the question of compliance with the Settlement before Complaint was reissued. /11/ The General Counsel filed an Opposition thereto, contending, quite correctly, that a Regional Director's power to issue complaint is unreviewable. While technically on target as respects the power to issue complaint, it totally ignored the fact that Respondent did, indeed, have a right to litigate the claimed breach of the Settlement. While the two arguments thus passed one another like two ships in the night, I think it fair to conclude that the General Counsel was urging the rather breathtaking proposition that the power to reissue a complaint addressed to matters which were the subject of a settlement agreement simply cannot be reviewed. Not only is the Opposition filed herein most susceptible of such a reading but this view is perfectly consistent with the argument advanced by the General Counsel, and rejected by the Authority, in Norfolk Naval Shipyard, (10 FLRA 641; December 13, 1982). /12/ For procedural reasons I refused to rule on the motion to dismiss unless and until it was renewed at the hearing. As noted, General Counsel conceded at the opening of the hearing that noncompliance had to be proved as a "jurisdictional matter," i.e., as a condition precedent to any unfair labor practice findings. However, at no time did the General Counsel identify any specific incident of noncompliance (except for the Rodriguez matter previously brought the Respondent's attention). Thus Respondent was never put on notice that any particular matter, in addition to the Rodriguez incident, was or would be urged as evidence of a breach of the Settlement terms, and it did not truly join issue on either the refusal to furnish crediting materials in conjunction with the Aiello grievance (G.C. Exhs. 23 and 24) or the other matter found at G.C. Exh. 16, both of which arose while the Settlement was in force. While Respondent did not resist the introduction of such evidence, it is to be noted that there is evidence of many similar incidents which arose between the time of the allegations covered by the Complaint and the Settlement, and even after the Settlement was set aside. When I asked whether the General Counsel was not beating a dead horse with so much essentially undisputed evidence of repeated demands and refusals, the explanation of that approach was that it would establish that Respondent's claimed change from a policy of flatly refusing all such requests to one of deciding case-by-case whether release was consistent with regulation was, in fact, no change at all because the consistent response was always to deny the request. Finally, it is to be noted that Respondent joined issue on the Rodriguez matter, seeking to establish that it was not an "actionable" grievance with therefore could not be a proper predicate for an information request because such materials were not necessary or relevant. Given the lack of specific notice concerning alleged noncompliance and the manner in which the case was tried and briefed, I conclude that only the Rodriguez matter was properly placed in issue on the question whether Respondent had complied with the terms of the Settlement Agreement. To recapitulate, the Settlement constituted a pledge by Respondent to return to its practice of furnishing crediting plans, as it existed prior to October 30, 1979 and when not prohibited by law or governing regulation. The threshold question here, then, is whether the refusal to turn over crediting plan materials in connection with the "incipient" grievance of Rodriguez was violative of that Agreement and therefore justified the Regional Director's determination to reissue Complaint. While much of this dispute centered upon whether governing regulations provided a continuing defense for such refusal, and whether adherence to Respondent's pre-October practice would in fact require such disclosure, there is also the question whether, given the contractual undertaking to resolve disputes over the Union's right to evaluative materials used in the merit promotion process, Respondent had any obligation to furnish such materials. The facts of the Rodriguez incident are as follows. On November 21, 1980, approximately one year after the alleged unfair labor practices, and four months before the execution of the Settlement Agreement at issue, Acting Union President Casale, on behalf of Rodriguez, requested certain evaluative materials used in filling a position set forth in Vacancy Announcement IV-222-RKB (Sr. Customs Inspector GS-11, Tampa). On December 4, Personnel Director Babcock furnished some of the requested materials, but refused to release the crediting plans as precluded by regulations (G.C. Exh. 20). Rodriguez's nonselection was then grieved on January 12, 1981 (G.C. Exh. 21) and, according to Casale, the grievance was rejected as untimely filed. Notwithstanding some suggestion that delayed delivery of those materials furnished contributed to the late filing (as well as an admission that the intervening holidays were also a cause), no appeal was taken. Nor was the failure to provide the crediting plan materials, as such, grieved under the terms of the contract then in force, although it specifically provided (Article 17, Section 17B) that challenges to the employer's failure to provide evaluative materials related to merit promotions "shall be resolved under the grievance and arbitration provisions provided in this agreement." Instead, the Union awaited execution of the Settlement Agreement and, on April 1, requested precisely the same materials as part of an "incipient grievance" on behalf of Rodriguez. "Incipient," according to Casale (Tr. 211), was used because the Union was "trying to set it up as a continuing grievance." Respondent contends that the grievance was time-barred, and that the information requested therefore could not be relevant and necessary to the discharge of any Union obligation to represent Rodriguez. In essence it argues that the right to such information cannot survive extinguishment of the right to grieve, and it relies on the Authority's holding that information sought by a bargaining agent must be shown to be necessary and relevant to the discharge of the agent's Statutory responsibilities. /13/ That holding is arguably clouded by the Authority's decision in U.S. Customs Service, Region VII, Los Angeles, California, 10 FLRA 251, in which it explicitly refrained from passing upon Respondent's contention that there was no duty to furnish information respecting a grievance which was asserted not to be grievable, but instead ordered its production on the ground that Section 7114(b)(4) "broadly requires management to furnish the exclusive representative with requested information 'to the extent not prohibited by law' . . . (and which is) . . . 'reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining.'" I see no inconsistency between those decisions. IRS, Buffalo holds that the Authority has the power to determine whether data requested is analytically, or logically, relevant to, and therefore necessary for, the resolution of a grievance. Customs holds that the question whether a matter is grievable, or a grievance filed is viable, is a question of arbitrability which must be submitted to the arbitrator. Thus no contention would lie, in a proceeding before this Agency, that information could have no useful purpose because related to a grievance which was late filed, or which does not embrace a subject matter covered by the grievance clause. There are matters committed to the arbitral process, and I am precluded from addressing them. Respondent's defense therefore fails. The question remains, however, whether the Union has forfeited its right to complain about the nonproduction of the requested materials because it had failed to pursue its contractual obligation to resolve such questions exclusively through the grievance/arbitration process. I read the contract's provision that challenges to the employer's failure to provide evaluative materials related to promotions "shall be resolved" under the contract's grievance and arbitration provisions to be a clear and unequivocal waiver of the right to pursue such matters via the Statute. /14/ Here, the Union did not even attempt to grieve the failure to provide all the evaluative materials it had requested in November on behalf of Rodriguez. Having failed to follow the route of relief prescribed by the contract, it four months later attempted to resurrect the issue as a matter of noncompliance with the Settlement Agreement. Respondent, having agreed to provide such materials (when not precluded by law or governing regulation), perhaps ought not be heard to assert in its defense that the Union had waived the right to ask for them. The fact that the Union has agreed with Respondent that it will not use the unfair labor practice process to resolve such issues may preclude access to that forum, but should ordinarily be no obstacle to the Authority's exercise of its power to police its settlement agreements. Here, however, the need for the requested information did not arise during, or shortly before the term of the Settlement, so as to clearly vindicate a request pursuant to it, but rather arose months before, vindicate a request pursuant to it, but rather arose months before, while the contract was fully in force, i.e., at a time when it was unaffected by the Settlement.