23:0681(91)NG - NTEU and Treasury, Customs Service -- 1986 FLRAdec NG

 23 FLRA No. 91
 
 NATIONAL TREASURY EMPLOYEES UNION
 Union
 
 and
 
 DEPARTMENT OF THE TREASURY,
 U.S. CUSTOMS SERVICE
 Agency
 
                                            Case No. 0-NG-934
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
                         I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute).  The issue presented
 concerns the negotiability of the following provision contained in the
 parties' locally executed agreement which was disapproved during review
 of that agreement by the Agency head under section 7114(c) of the
 Statute:  /1/
 
          Existing crediting plans will be disclosed to the union upon
       request.
 
                       II.  Positions of the Parties
 
    The Agency contends that subchapters S5-3 and S6-1 of Federal
 Personnel Manual (FPM) Supplement 335-1 and FPM Letter 335-15 do not
 permit a blanket disclosure of crediting plans but require agencies to
 make a case-by-case determination as to whether releasing its plans
 would give candidates an unfair advantage or compromise the utility of
 its selection process.  The Agency claims that disclosure of its
 crediting plans would reduce their utility by (1) making it difficult
 for the Agency to verify nonquantitative information presented by
 applicants having access to the plans, and (2) resulting in applicants
 creating similar applications which would generate similar scores.  It
 argues that these sections of the FPM are Government-wide regulations
 within the meaning of section 7117(a)(1).  The Agency claims that the
 provision would conflict with the cited regulations and is, therefore,
 outside the duty to bargain.
 
    The Union contends that the release of crediting plans pursuant to
 the disputed provision will not result in an unfair advantage to any
 candidate or compromise the utility of the selection procedure.  The
 Union argues that the provision is, therefore, not inconsistent with the
 FPM and is within the duty to bargain.
 
                       III.  Analysis and Conclusion
 
    The Union's proposal would require the Agency to disclose any
 existing crediting plan to the Union upon request.  In National Treasury
 Employees Union and NTEU Chapters 153, 161 and 183 and U.S. Customs
 Service, Region II, 11 FLRA 209, 212-13 (1983), reversed on other
 grounds sub nom. U.S. Customs Service, Region II v. FLRA, 739 F.2d 829
 (2d Cir. 1984), /2/ the Authority held that FPM Supplement 335-1,
 subchapter S6, and FPM Letter 335-15, which revised FPM Supplement
 335-1, subchapter S5, authorize release of crediting plans where the
 release would not create any unfair advantage to some candidates or
 compromise the utility of the selection process.  However, a
 determination as to whether release of crediting plans would create an
 unfair advantage or compromise the utility of the selection process
 depends upon the particular circumstances present and, consequently,
 should be made by an agency on a case-by-case basis.  Although
 subchapter S5-3 of FPM Supplement 335-1 generally encourages agencies to
 provide candidates for selection with information about the job
 requirements and rating procedures used to evaluate them, subsection (c)
 of that subchapter provides:
 
          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 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.
 
    Additionally, FPM Letter 335-15 explains that FPM Supplement 335-1 is
 intended to allow agencies to provide candidates with information about
 characteristics to be measured and about the measurement process through
 "vacancy announcements or through making available crediting plans or
 related information which will not compromise requirements for security
 and control." However, the FPM Letter further provides that "(a)n
 explicit decision is necessary to determine whether crediting plans and
 related rating information are releasable."
 
    Nothing in the language of the Union's proposal would limit the
 Agency's obligation to comply with a Union request for disclosure of
 crediting plans where such disclosure would be contrary to the
 requirements of the FPM.  Since the Union's proposal would authorize a
 blanket disclosure of existing Agency crediting plans without regard to
 whether release of those plans would undermine the fairness and validity
 of the selection procedure, we find that the proposal is inconsistent
 with subchapter S5-3(c) of FPM Supplement 335-1.
 
    Next, we must determine whether FPM Supplement 335-1, subchapter S5-3
 constitutes a "Government-wide rule or regulation" within the meaning of
 section 7117(a)(1) of the Statute which would bar negotiations on a
 conflicting union proposal.  In U.S. Customs Service, Washington, D.C.,
 discussed in footnote 2, the Authority found FPM Chapter 335, subchapter
 1-4, in which the Office of Personnel Management (OPM) set forth its
 determination of the policies necessary to ensure that agency promotion
 procedures are based on merit, to be a Government-wide rule or
 regulation.  /3/ Requirement 3 of subchapter 1-4 provides that
 "(m)ethods of evaluation for promotion and placement . . . must be
 consistent with instructions in FPM Supplement 335-1." FPM Supplement
 335-1 contains instructions to agencies from OPM concerning the "use" of
 evaluation procedures in accordance with Requirement 3 of FPM Chapter
 335, subchapter 1-4.  See FPM Supplement 335-1, subchapter S1-1.  Also,
 Requirement 3 is generally applicable to the Federal civilian work force
 in that it applies to "all General Schedule and Wage Grade jobs." See
 FPM Letter 335-15.  Accordingly, we find that subchapter S5-3 of FPM
 Supplement 335-1 constitutes a Government-wide rule or regulation within
 the meaning of section 7117(a)(1) of the Statute.  Since the Union's
 proposal is inconsistent with subchapter S5-3, it is outside the duty to
 bargain.  /4/
 
                                IV.  Order
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, the Union's petition for review is dismissed.
 
    Issued, Washington, D.C., October 29, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) The Agency withdrew its disapproval of Article 12, Sections 1A,
 4A, 6C and 6D;  Article 15;  Article 16, Sections 2, 3, 8, 10A, 10C,
 16A, and 17A;  Article 17, Section 13;  Article 20, Section 7;  and
 Article 24, Section 6C.  The Union withdrew its appeal as to the
 Agency's disapproval of Article 20, Section 9E;  Article 22, Section 9;
 and Article 24, Sections 6A and 6B.  Consequently, these provisions will
 not be considered further here.
 
    (2) In U.S. Customs Service, Region II, the Second Circuit reversed
 the Authority's holding that the content of the crediting plans at issue
 in that case was within the duty to bargain.  In Department of the
 Treasury, U.S. Customs Service v. Federal Labor Relations Authority, 762
 F.2d 1119 (D.C. Cir. 1985), reversing National Treasury Employees Union
 and Department of the Treasury, U.S. Customs Service, Washington, D.C.,
 11 FLRA 247 (1983), the D.C. Circuit reached the same result as the
 Second Circuit regarding the negotiability of the content of crediting
 plans but for different reasons.  In 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 (1985), the Authority
 concurred in the result reached by both courts as to the negotiability
 of the content of crediting plans, but adopted the rationale of the D.C.
 Circuit.  However, neither the decision of the Second Circuit nor the
 D.C. Circuit addressed the negotiability of the disclosure of crediting
 plans.
 
    (3) The D.C. Circuit's decision, which reversed the Authority's
 holding in U.S. Customs Service, Washington D.C. as to the negotiability
 of the content of crediting plans, did not disagree with the Authority's
 finding that FPM Chapter 335, subchapter 1-4 is a Government-wide rule
 or regulation.
 
    (4) We note that in National Treasury Employees Union v. U.S. Customs
 Service, No. 84-5754 (D.C. Cir. Sept. 26, 1986), the D.C. Circuit
 recently sustained an agency's denial of a union's request under the
 Freedom of Information Act for disclosure of the agency's crediting
 plans.  In finding that the crediting plans constitute materials
 "related solely to the internal personnel rules and practices of an
 agency" which are exempt from disclosure under 5 U.S.C. Section
 552(b)(2), the D.C. Circuit agreed with the agency's contention that
 release of the plans could compromise the agency's evaluation process.
 The court found, slip op. at 7-8, that "advance knowledge of the plans
 by applicants would allow and induce at least some of them to embellish
 -- or perhaps even fabricate -- their backgrounds to suit the
 appropriate crediting plan."