[ v19 p555 ]
19:0555(76)CA
The decision of the Authority follows:
19 FLRA No. 76
U.S. FOOD AND DRUG ADMINISTRATION
AND U.S. FOOD AND DRUG ADMINISTRATION
REGION VII, KANSAS CITY, MISSOURI
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 7-CA-30466
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in certain unfair labor practices as alleged in the complaint and
recommending that the complaint be dismissed. Thereafter, the General
Counsel filed exceptions to the Judge's Decision and the Respondent
filed an opposition thereto.
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 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, conclusion and recommended Order as modified below.
The complaint alleged, in substance, that the Respondent violated
section 7114(b)(4) /1/ of the Statute when it failed and refused to
provide the Charging Party (the Union) with copies of two types of
employee survey results called "feedback" and "roll-up" reports. The
Judge determined, for reasons more specifically set forth in his
Decision, that the Respondent had not engaged in the unfair labor
practices alleged in the complaint and recommended that the complaint be
dismissed in its entirety. In this regard, the Judge determined that
the feedback reports were not "necessary" information within the meaning
of section 7114(b)(4) and that the Respondent therefore had no
obligation to furnish them to the Union. With regard to the roll-up
reports the Judge found that, contemporaneous with its information
request, the Union had entered into negotiations with management
concerning procedures which management would follow in conducting the
survey. In these negotiations the Union also had included proposals
that the Union be given feedback and roll-up reports. These
negotiations continued until June 2 when the Union declared that the
parties were at impasse over the issue of whether the Respondent would
furnish the feedback reports. The parties went to mediation but were
unable to reach agreement and the Union elected on July 11, 1983, to
file the unfair labor practice charge herein rather than go to the
Federal Service Impasses Panel (the Panel). Based on the testimony of
the parties, the Judge concluded that the parties had failed to reach
agreement because, while the Union sought the roll-up reports, it was
not willing to accept the roll-up reports as full satisfaction of its
demand for data and therefore no complete agreement on the production of
information was reached. The Judge also found that the Union never
asked for delivery of the roll-up reports prior to the completion of the
agreement. On this basis the Judge concluded that, as the Union never
requested that the roll-up reports be delivered prior to full agreement,
it could not be said that the Respondents refused to deliver them.
Contrary to the Judge, the Authority finds that the Union, subsequent
to its information request on March 18, 1983, did not waive its right to
timely receipt of the roll-up reports by its failure to renew its
request at a later date, either during negotiations or when the
Respondent received those reports from the contractor in June 1983.
Thus, the Authority finds that the Respondent violated section
7114(b)(4) and thereby section 7116(a)(1), (5) and (8) of the Statute,
when it failed to provide the Union with the district and regional
roll-up reports within a reasonable time after they were furnished to
the Respondent by the contractor as part of the Organizational
Improvement Survey. See Bureau of Prisons, Lewisburg Penitentiary,
Lewisburg, Pennsylvania, 11 FLRA 639 (1983). In this regard the
Authority notes that the Respondent received the roll-up reports in late
June or early July and that the Respondent did not provide the Union
with copies of the district and regional roll-up reports until December
11, 1983, after the complaint herein had issued. The Authority further
concludes that the Union did not waive its statutory right to the timely
furnishing of the roll-up reports either by entering into negotiations
seeking to have the Respondent furnish both feedback and roll-up reports
or by failing to request that such reports be furnished separately when
the Respondent received them from the contractor in June. The Authority
finds that the Respondent acted in derogation of its statutory
obligation under section 7114(b)(4) when it withheld the delivery of the
roll-up reports until December 11, 1983, absent a clear and unmistakable
waiver of the Union's statutory right to timely production of the
information or agreement by the Union to delay the delivery of the
roll-up reports until a full agreement with the Respondent could be
reached on whether both reports would be provided. See Internal Revenue
Service, 10 FLRA 182 (1982) and Department of the Air Force, Scott Air
Force Base, Illinois, 5 FLRA 9 (1981). The Authority finds that the
roll-up reports were data normally maintained by the agency in the
regular course of business and were reasonably available and necessary
within the meaning of section 7114(b)(4) for the full and proper
discussion and understanding of subjects within the scope of collective
bargaining. In this regard, the Authority notes that the roll-up
reports, which were consolidated reports of one or more feedback
reports, were furnished to regional and district level management and
maintained by the Respondent with the objective that such reports would
be used as a basis for subsequent management initiatives regarding
possible changes in unit employees' working conditions in order to
improve their morale and efficiency.
The Authority reaches a different conclusion with regard to the
Union's right to copies of the feedback reports. These reports were not
furnished to the Respondent by the contractor and were not available to
management in general. Rather, access to such reports was restricted to
the immediate supervisor of the work group involved. Feedback reports
were treated as confidential and the personal property of the immediate
supervisors to whom the reports were supplied. Each supervisor was
expected to use the information in such reports, and the information
collected through work group discussions with his or her employees, to
prepare an "action plan" which described two or more improvements in
managerial practices which could be made at that level. After the
preparation of this "action plan," immediate supervisors were free to
retain the feedback reports, as personal property, or discard them.
Thus the Authority concludes that feedback reports were not data
maintained by the Respondent in the regular course of business and, as
such, need not be supplied by the Respondent pursuant to section
7114(b)(4). See Department of Health and Human Services, Social
Security Administration, Field Assessment Office, 12 FLRA 390 (1983).
Therefore the portion of the complaint dealing with the Respondent's
failure to provide the Union with copies of the feedback reports is
dismissed. /2/
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the U.S. Food and Drug Administration and U.S. Food
and Drug Administration Region VII, Kansas City, Missouri, shall:
1. Cease and desist from:
(a) Withholding or failing to provide roll-up reports in a timely
manner to the National Treasury Employees Union, the exclusive
representative of a unit of its employees, information which is
necessary to enable the National Treasury Employees Union to discharge
its obligation as the exclusive representative of such unit employees.
(b) In any like or related manner interfering with, restraining, or
coercing employees in their exercise of rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Furnish roll-up reports in a timely manner to the National
Treasury Employees Union, information which is necessary to enable the
National Treasury Employees Union to discharge its obligation as the
exclusive representative of a unit of its employees.
(b) Post in its offices within Region VII, 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
Regional Director, or a designee, and shall be posted and maintained for
60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken to insure that such Notices are not altered,
defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VII, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
Issued, Washington, D.C., August 12, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT withhold or fail to provide roll-up reports in a timely
manner to the National Treasury Employees Union, the exclusive
representative of a unit of our employees, information which is
necessary to enable the National Treasury Employees Union to discharge
its obligation as the exclusive representative of a unit of our
employees. WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations Statute. WE
WILL furnish roll-up reports in a timely manner to the National Treasury
Employees Union, information which is necessary to enable the National
Treasury Employees Union to discharge its obligation as the exclusive
representative of a unit of our employees.
(Agency or 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 VII, Federal Labor Relations Authority, whose address is: 1531
Stout Street, Suite 301, Denver, Colorado 80202 and whose telephone
number is: (303) 837-5224.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 7-CA-30466
Mr. John F. Egan
Mr. Charles Gaul
For the Respondent
M. Kathryn Durham, Esquire
On brief: William Harness, Esquire For the Charging Party
James J. Gonzalez, Esquire
For the General Counsel
Before: WILLIAM B. DEVANEY
Administrative Law Judge
DECISION
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101,
et seq., /3/ and the final Rules and Regulations issued thereunder, 5
C.F.R. 2423.1 et seq., concerns a request for data sought pursuant to
Sec. 14(b)(4) of the Statute. Management employed outside consultants
to conduct a survey wherein each employee was asked to respond to 110
questions. The consultant fit the answers to the 110 questions into 17
or 18 categories. A "feedback" report, the analysis of the 17 or 18
categories, was prepared and went to each individual supervisor, some
supervisors having only five, or so, employees, other supervisors having
substantially more employees. Initially, Respondent offered, but did
immediately supply, what is called the "roll-up" report; and later
Respondent supplied the "roll-up" report which contains the same
analysis as the "feedback" report but it covers a much larger group than
an individual supervisor. Respondent asserts that non-disclosure of the
feedback reports is essential to the effective operation of the survey.
This matter was initiated by a charge, filed on July 11, 1983 (G.C. Exh.
1(a)) which alleged violation of Secs. 16(a)(1) and (5) of the Statute;
a First Amended Charge (G.C. Exh. 1(b)), filed on July 28, 1983, which
alleged violation of Secs. 16(a)(1) and (8) of the Statute; and a
second Amended Charge (G.C. Exh. 1(c)), filed on November 28, 1983,
which alleged violation of Secs. 16(a)(1), (5) and (8) of the Statute;
and scheduled the hearing for January 10, 1984. At the commencement of
the hearing, General Counsel moved to amend the Complaint, which motion
was not opposed and was granted (Tr. 14-15), to include the national
office of the Food and Drug Administration as a separate entity. By
Order dated January 3, 1984, (G.C. Exh. 1(g)), the hearing was
rescheduled for January 12, 1984, pursuant to which a hearing was duly
held on January 18, 1984, in Kansas City, Missouri, before the
undersigned.
All parties were represented at the hearing, were afforded full
opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence bearing on the issues involved, and were afforded
opportunity to present oral argument which all parties waived. At the
close of the hearing, February 21, 1984, was fixed as the date for
mailing post-hearing briefs, which time was subsequently extended, on
timely motion of the Charging Party, with which Respondent and General
Counsel joined, for good cause shown, to March 2, 1984. Respondent, the
Charging Party, National Treasury Employees Union (hereinafter referred
to as "NTEU"), and the General Counsel each timely mailed an excellent
brief, received on or before March 5, 1984, which have been carefully
considered. Upon the basis of the entire record, including my
observation of the witnesses and their demeanor, I make the following
findings and conclusions:
Findings
1. At all times material, NTEU Chapter 217 has been the exclusive
representative of all professional and non-professional General Schedule
and Wage Grade employees of the Regional Office and Field Offices of the
Food and Drug Administration, Region VII, Kansas City, Missouri, with
certain exclusions more fully set forth in paragraph 4 of the Complaint
(G.C. Exh. 1(d)). Region VII includes the Kansas City District, the
Office of the Regional Director and stations or resident posts in St.
Louis and Springfield, Missouri; Wichita, Kansas; Omaha, Nebraska;
Sioux City, Des Moines, Davenport and Cedar Rapids, Iowa. In all,
Region VII employs about 154 people (Tr. 163). Region VII is a field
component of Executive Director Regional Operations, Food and Drug
Administration, U.S. Public Health Service, Department of Health and
Human Services (herein referred to as "Respondent" or "Region VII").
The National Office of Respondent was named as a separate entity for the
reason that Respondent's refusal to furnish certain data, discussed
hereinafter, was pursuant to policy determinations made by the National
Office. I am fully aware of this fact; nevertheless, both Region VII
and the National Office are referred to as "Respondent" or as "Region
VII except where specifically indicated to the contrary, in which case
the National Office will be referred to as "Food and Drug
Administration".
2. The parties entered into a collective bargaining agreement
effective April 25, 1983 (G.C. Exh. 2); however, neither this agreement
nor any other agreement between the parties directly, or indirectly,
addresses or contains any provision which addresses production of data
(Tr. 58).
3. In late November, 1982, Region VII learned of a survey to be
conducted throughout the Food and Drug Administration (G.C. Exh. 5).
This survey is known as the Organizational Practices Survey (OPS) or as
the Management System Improvement Survey (MSIS or MAS) (Tr. 163, 242);
however, for consistency, the survey is referred to hereinafter as
"OPS". OPS was developed by the Institute for Behavioral Research in
Creativity (IBRIC). Essentially the same survey has been used since
1973; has been used by five government agencies and two private
industrial organizations; and more than 60,000 employees have
participated, including 11,000 employees of the Department of Health and
Human Services (Tr. 241). OPS consists of 110 multiple choice questions
answered by employees anonymously. Four or five questions, not
consecutive, relate to the eighteen categories /4/ (only seventeen were
scored in the Region VII survey, No. 18, "Workload Balance" having been
omitted; Compare G.C. Exhs. 4 and 21) as follows:
1. Planning and Organization
2. Training Effectiveness
3. Performance Feedback
4. Work Definition
5. Fairness of Management
6. Work Satisfaction
7. Morale
8. Opportunity For Promotions
9. Delegation of Authority
10. Climate For Innovation
11. Equal Opportunity Programs
12. Performance Standards
13. Performance Management Outcomes
14. Communications
15. Co-Worker Cooperation
16. Change in Productivity
17. Operational Efficiency
18. Workload Balance
(G.C. Exh. 4).
4. After Region VII learned of the survey in late November, 1982, it
advised NTEU of the impending survey in December, 1982, and about a week
later, on December 20, 1982, NTEU was supplied with a copy of
"Organizational Practices Survey Handbook For Supervisors" (G.C. Exh.
3), on the cover of which Mr. Gerald E. Vince, Director, Compliance
Branch, Kansas City and Chief Negotiator for Region VII, had stated that
the survey was to "begin in early 83 and Dick Olson and Sal Comado (Stl)
have been identif. as the two 'facilitators' with Jack McGrath as
alternate." (G.C. Exh. 3). On January 10, 1983, Ms. Patricia Schneider,
steward and NTEU representative in this matter, submitted NTEU's
proposals concerning the OPS. NTEU's proposals were:
"1. Management will designate one (1) facilitator and NTEU
will designate one (1) facilitator.
"2. NTEU will be provided a copy of all materials which are
given to the facilitators for training purposes.
"3. NTEU will be provided copies of all the surveys which are
completed.
"4. NTEU will be provided all information which IBRIC returns
to either Management or the facilitators.
"5. NTEU does not waive its right to negotiate the further use
of the survey information or any changes which are made as a
result of the survey." (G.C. Exh. 6).
5. Ms. Schneider met with Mr. Vince on January 14 and 19, 1983; Mr.
Vince asserted that the facilitators' assignment was a work assignment
and not negotiable (Tr. 47); Mr. Vince agreed to supply the training
materials and did so (Tr. 47-48). By letter dated February 18, 1983
(G.C. Exh 7), Ms. Schneider informed Mr. Vince that, although NTEU
considered Region VII's refusal to bargain over the designation of
facilitators a violation of Sec. 16 of the Statute, it did not intend to
file an unfair labor practice charge and that it had no "particular
objection to the individuals . . . designated as facilitators"; but
that in the future NTEU expected to be accorded its full rights under
the Statute (G.C. Exh. 7).
6. Ms. Schneider testified that she believed the parties had reached
agreement on January 19 with regard to the furnishing of survey
information and attached to her letter of February 18, 1983, was what
she thought had been agreed to as follows:
"1. Management will provide NTEU with a copy of all materials
which are given to the facilitators for training purposes.
"2. Management will provide NTEU with all survey information
which IBRIC provides either to management or to the facilitators
except for that information which is clearly identifiable as
having come from management groups.
"3. NTEU does not waive its right to negotiate the further use
of the survey information or any changes which are made as a
result of the survey." (G.C. Exh. 7, Attachment).
7. The parties met on February 23 at which time Mr. Vince informed
Ms. Schneider that "we did not have an agreement, as I had believed,
that management would not provide the survey information to the union
except to provide what he was calling the roll-up reports for the
district and the region. District would include the St. Louis
inspection station, and the region would include the regional staff and
district staff." (Tr. 52); that "management was prepared to give the
union the district and regional roll-up reports. The other reports, the
feedback reports, and other roll-up reports . . . he said, would be
considered confidential information, and that the union would not be
allowed to have copies of those because he had deemed this to be
confidential." (Tr. 52).
8. The OPS Handbook states, under "OPS Feedback Reports", as
follows:
"Each supervisor of a unit having five or more subordinate
employees who completed the OPS survey receives a
computer-generated feedback report of the results obtained. Each
higher level supervisor receives a report based on the responses
of immediate subordinates and a second, consolidated report based
on all employees subordinate to him/her." (G.C. Exhs. 3 and 4).
In this proceeding, "feedback report" means the report to the immediate
supervisor of a unit having five or more subordinate employees.
"Roll-up report" means all consolidated reports of one or more feedback
reports. Region VII represents that it received only two roll-up
reports, namely, the roll-up report for the Kansas City District, which
includes the St. Louis Station and covered 120 employees, and the
roll-up report for Region VII, which includes the Kansas City District
and the Office of the Regional Director and covered 130 employees (G.C.
Exhs. 16, 21 and attachments). The feedback report and the roll-up
report are identical in format and content, except, of course, that a
feedback report represents the average of responses of employees in the
individual supervisor's unit while the roll-up report represents the
average of the responses of employees in two or more supervisors' units.
That is, the feedback report averages the responses in the immediate
work group and the roll-up report averages the same responses within a
larger work group (Tr. 271-273).
9. Ms. Schneider met with Mr. Vince again on March 3 and proposed
that feedback reports be furnished with the supervisor's names deleted
but Mr. Vince rejected this proposal and at the end of the meetings Ms.
Schneider stated that they were so far apart she feared that by the time
this matter was settled, " . . . it would have been shredded, and he
agreed with me that that was a very definite possibility." (Tr. 56).
Accordingly, by letter dated March 18, 1983, addressed to Mr. Clifford
G. Shane, Regional Director, Ms. Schneider requested, both pursuant to
Sec. 14(b)(4) of the Statute and the Freedom of Information Act,
"1. All statistical documentation, printouts, 'MAS Feedback
Reports', and survey information which is provided to the
facilitators by IBRIC (information appropriately sanitized to
safeguard employee and supervisor confidentiality).
"2. The 'Roll-up Report(s)' for the Region, District and St.
Louis Station (FDA, Region VII)." (G.C. Exh. 8).
10. On March 18, 1983, Ms. Schneider also submitted proposals to Mr.
Vince as follows:
"1. Management will provide NTEU with a copy of all materials
which are given to the facilitators for training purposes.
"2. Management will provide NTEU Stewards and Alternates with
the opportunity to meet with designated facilitators for the
purpose of explanation and clarification of the OPS and
management, employee and Union roles appropriate in the conduct of
the survey. The meeting will take place in space provided by
management and its length will be determined by NTEU (but will not
be longer than 2 hours). All participants will be on official
time.
"3. Management will provide NTEU with all survey information
(statistical documentation, printouts, 'MAS Feedback Reports',
'Roll-up Report(s)') which IBRIC provides either to management or
to the facilitators except for that information which is clearly
identifiable as having come from management groups. The
information cited above which is provided to NTEU may be sanitized
to protect the confidentiality of individual supervisors by
deletion of the name of the supervisor, the Branch reference (if
any) and the number of respondents. These reports will then be
designated as Supervisory Group #1, S.G. #2 . . . , Branch Group
#1, B.G. #2 . . . . This designation allows distinction between
'feedback' to individual supervisors and 'feedback' to branch
directors.
"4. NTEU does not waive its right to negotiate the further use
of the survey information or any changes which are made as a
result of the survey." (G.C. Exh. 9).
11. By memorandum dated March 25, 1983 (G.C. Exh. 10), Mr. Shane
advised all employees that the OPS would be given on April 11, 1983,
with a make up session on April 18, 1983; that participation was
voluntary but individual answers were desired; that the answers would
be confidential and to assure confidentiality, the answer sheet was not
to be signed and would be placed in individual envelopes and sealed by
each employee; and that a meeting would be held on April 4, 1983, to
explain the conduct of the survey and to answer any questions.
12. NTEU received on April 1, 1983, a memorandum from the Associate
Director For Administration, Mr. Mount L. Warren (G.C. Exh. 11-B).
13. By letter dated April 4, 1983, Mr. Shane denied Ms. Schneider's
FOIA request for the reason that, ". . . I cannot honor a Freedom of
Information request for documents that do not exist." (G.C. Exh. 12).
Mr. Shane further stated:
"It is the agency's position that feedback reports are
confidential. Only the facilitator and the supervisor for whom
the report is intended have access to them. We will provide you
with roll-up reports for Kansas City District which includes St.
Louis Station and for the Region which includes Kansas City
District and the Office of the Regional Director." (G.C. Exh. 12).
14. By memorandum dated April 6, 1983, to Mr. Vince, Ms. Schneider,
as the result of Mr. Mount Warren's memorandum, amended her March 18
proposals. In her covering memorandum, she stated, in part, as follows:
" . . . I find that our difficulties in negotiating over which
reports will be provided to NTEU stem in part from a policy
originating in EDRO. Consequently, I would like to propose that
we finalize an agreement on OPS which leaves open the issue of
whether or not 'feedback reports' will be provided to NTEU." (G.C.
Exh. 13).
NTEU's March 18 proposals were amended as follows:
"1) Same
"2) Same
"3) Management will provide NTEU with the following survey
results:
"a) 'Roll-up' report for Region VII
"b) 'Roll-up' report for Kansas City District (including SLIS
and/or Resident Posts)
"c) 'Roll-up' report for Kansas City District
"d) 'Roll-up' report for SLIS
"4) Same
"5) Management and NTEU will continue to negotiate over the
provision of 'feed-back' reports to NTEU." (G.C. Exh. 13).
By memorandum dated April 7, 1983, Ms. Schneider further amended her
April 6, 1983, proposal to add:
"3e) All 'Roll-up' reports" (G.C. Exh. 15).
15. By memorandum dated April 18, 1983, Mr. Vince responded to Ms.
Schneider's proposals of March 18, as amended April 6 and 7, as follows:
"1) Agree
"2) Non-concur (request to meet with facilitators)
"3) a. Agree
b. Agree
c. Non-concur
d. Non-concur
e. Non-concur since those 'roll-up' reports represented by
3)a. and b. are the only ones available to FDA, Region VII. /5/
"4) Agree
"5) I see no practical basis for this section in view of #3.
Please clarify your intent as it relates to this point.
"Please contact me at your earliest convenience so we can
resolve these remaining issues and finalize our negotiations over
OPS." (G.C. Exh. 16).
16. Ms. Schneider did not respond to Mr. Vince's memorandum of April
18 and on May 24, 1983, Mr. Vince again wrote Ms. Schneider and stated,
in part, that "Unless you advise me of the union's interest in
completing these negotiations, we will consider the matter in abeyance.
Please inform me of your position no later than May 31, 1983. . . . "
(G.C. Exh. 17).
17. Ms. Schneider and Mr. Vince met on June 2, 1983. Although Mr.
Vince had declined to agree to a meeting of NTEU Stewards with
facilitators, Ms. Schneider testified that ". . . we were able to work
it out. Management seemed agreeable to provide some training to the
union by the facilitators" (Tr. 86, 87); but, Ms. Schneider stated,
". . . However, in the past, we had always been unable to
implement any agreement until the total agreement had been
finished." (Tr. 118).
. . . .
"A. In the past, it has been management's policy that while we
are negotiating, we do not implement part of that agreement, that
we had to finalize the agreement before we could implement any of
the parts." (Tr. 121).
Mr. Vince stated, in part, that he,
"A. Both offered the opportunity to meet individually with the
facilitators over the results when they were received eventually
and, also, provided the union opportunity to be present or advised
them they could certainly be present at the individual meetings
that were held eventually held between the supervisors and the
people in their own work group." (Tr. 199).
18. Although the parties agreed on June 2 for the training of
stewards, the parties remained at loggerheads over the feedback reports
and ". . . at that time Mr. Vince and I agreed that we could negotiate
no further with any meaningful progress and that we were in need of
assistance and that I would seek the aid of the federal mediator . . .."
(Tr. 88). On the following day, June 3, 1983, Ms. Schneider delivered
to Mr. Vince a letter which stated as follows:
"Based on our mutual understanding that we are unable to reach
an agreement in our negotiations over the OPS, NTEU declares
impasse. I will contact the FMCS for their assistance." (G.C.
Exh. 18).
19. The parties subsequently went to mediation but were unable to
reach agreement (Tr. 89, 200) and NTEU elected to file the unfair labor
practice charge rather than go to the Impasses Panel (Tr. 89).
20. The survey was taken on April 11, 1983 (Tr. 91), meetings were
conducted in 17 or 18 work groups by the two facilitators in July, 1983,
and NTEU was represented at each meeting; the roll-up reports for the
Kansas City District and for Region VII were received in July, 1983 (Tr.
194); however, the roll-up reports were not furnished to NTEU until
December 22, 1983 (Tr. 96). As noted above, Ms. Schneider stated that
it had always been the practice, ". . . that we had to finalize the
agreement before we could implement any of the parts." (Tr. 121) and Mr.
Vince stated,
". . . So we have not reached agreement on the difference of
positions. They had never requested them (the roll-up reports),
although they had been offered on a number of occasions.
"Q. What was their response when they were offered copies of
these two roll-up reports?
"A. As I recall, it was simply a matter that they wished to
have a complete agreement before any exchange of information other
than what was provided was made available." (Tr. 200).
21. In the administration of the survey, extraordinary measures are
taken to assure both the anonymity of each person answering the survey
and the confidentiality of the results of the survey. Thus, to
administer the survey, bargaining unit employees, called facilitators,
were used to insulate the individuals answering the survey, including
supervisors, from management. The survey answer sheets were not signed
and each individual placed his own answer sheet in an envelope, sealed
it, and turned it over to the facilitator who collected all envelopes
and mailed them to IBRIC, an independent contractor. The two
facilitators were: Mr. Richard (Dick) E. Olson, a chemist at Kansas
City; and Mr. Salvatore J. Comado, an investigator in St. Louis. After
the results were processed through its computer by IBRIC, feedback
reports for the 17 or 18 work groups were returned in sealed envelopes
to the facilitators. Mr. Olson had three work groups in St. Louis and
eight in Kansas City (including investigations in St. Louis in which Mr.
Comado works); and Mr. Comado the balance (including the laboratory in
Kansas City in which Mr. Olson works). Upon receipt of the sealed
envelopes for the assigned work units, the facilitator met with the
supervisor and gave him the envelope for his work group. The supervisor
either opened the envelope, or the facilitator did, and the facilitator
then explained what the results showed. The supervisor then met with
his employees in a group, together with the facilitator, and gave a
brief summary of the result, i.e., in general terms the numbers of high,
average, or low ratings on the general ranking in a particular category,
(Tr. 102, 105, 117, 119, 120, 128, 139, 141, 226, 227, 228, 237, 238)
generally stating areas that need improvement. The supervisor then left
the meeting and the employees made comments about conditions in their
work area to the facilitator.
Mr. Olson stated that the primary purpose of the survey is to develop
an action plan (Tr. 221) and each supervisor was expected, with the
assistance of the facilitator, to develop an action plan to reflect " .
. . changes agreed upon between supervisors and their work group's . . .
The action plan should indicate areas within a work group's control in
which positive, constructive changes would bring about greater employee
satisfaction and productivity." (G.C. Exh. 19). While greatly
oversimplified, the survey, in essence, sought the opinion of the
employees as to how the group was being managed and the action plan was
an effort to improve that management. NTEU made no request for any
action plan.
22. Dr. Kevin Coray, an industrial psychologist with the Office of
Secretary, Assistant Secretary for Personnel, Department of Health and
Human Services (Tr. 276), developed the survey as part of his Ph.D.
thesis (Tr. 277) and has worked with various versions of the survey
since 1973 (Tr. 241). He was employed by IBRIC as a graduate assistant
(Tr. 277), is presently an adjunct professor of psychology at the
University of Baltimore, Baltimore, Maryland, and has been employed by
the Department of Health and Human Services for three and a half years
(Tr. 242), or since about July, 1980.
Dr. Coray testified at some length concerning the survey and the
reasons why both the anonymity of each person answering the survey and
the confidentiality of the results are essential. He stated, for
example, that,
" . . . Since 1968 working in a variety of organizations,
primarily Dow Chemical and the Department of Labor, and in
developing the system, it was determined that virtually every
employee would have to answer the survey itself in order to get
accurate and reliable and valid data . . . . The only way to
insure that all employees would take the survey and still maintain
their rights as individuals was to make sure that all employees
were briefed ahead of time about what the purpose of the survey
was, that they understand that only work group level identifiers
would be put onto the survey itself. That's the organizational
code in the survey.
"In addition, supervisors were assured that they would not have
to share the results with higher level supervisors; and because
of these procedures, we're able to get exceedingly accurate,
exceedingly distinctive, and useful diagnostic information.
. . . .
" . . . Because of not having this so, in cases where the
confidentiality of supervisors and the anonymity of employees is
not maintained, the response rate falls from approximately 95 per
cent down to 50 per cent. . . .
. . . .
"One other effect occurs, and that is that employees and
supervisors predictably answer the survey in a much more favorable
way, so we get what is called social desirability in responses to
the survey. Social desirability makes it so that virtually all
the results look virtually identical. . . . " (Tr. 244-246)
Dr. Coray further testified that release of the feedback reports would
undermine the basic principles of the survey and that even if feedback
reports were sanitized, i.e., identity of work group and the number of
employees in the work group were removed, it would be easy to identify
the particular work group. Thus, Dr. Coray, stated,
"Releasing the feedback reports would undermine the basic
principles of the survey. Without the kinds of agreements that we
have made about confidentiality and anonymity, we would be unable
to get responses to the survey. The responses, if any, that we
did get would be inaccurate . . .." (Tr. 247).
As to identifying work groups even if the feedback reports were
sanitized, Dr. Coray stated,
"Yes, I'm virtually certain they could. The psychometric
principles built into the system are such that we get very
distinctive differences between work groups, and the way that
facilitators share the information that's in the feedback reports
or that supervisors share that information is such that these
distinctive differences would be apparent in the feedback reports
themselves." (Tr. 248-249).
Conclusions
Paragraph 6(a) of the Complaint states that,
"On or about March 18, 1983, the Union submitted a written
request pursuant to 5 USC 7114(b)(4) to Respondent, through Shane,
for copies of:
'(1) All statistical documentation, print-outs, 'MAS Feedback
Reports' and survey information which is provided to the
facilitator by IBRIC (information appropriately sanitized to
safeguard employee and supervisor confidentiality)' and
'(2) The 'Roll-up Report(s)' for the Region, District and St.
Louis Station (FDA, Region VII).'"
Paragraph 7 of the Complaint states that "On or about April 4, 1983, and
at all times since, Respondent, by Shane, has failed and refused, and
continues to fail and refuse, to furnish to the Union without charge the
data requested pursuant to 5 USC 7114(b)(4) as described in paragraph
6(a); Paragraph 8 alleges that by the acts and conduct described in
paragraph 7, Respondent violated Sec. 16(a)(8); Paragraph 9 alleges
that by the acts and conduct described in paragraph 7, Respondent failed
to bargain in good faith in violation of Sec. 16(a)(5); Paragraph 10
alleges that by the acts described in paragraph 7 through 9, Respondent
violated Sec. 16(a)(1); and Paragraph 11, restates that the acts of
Respondent set forth above violated Secs. 16(a)(1), (5) and (8) of the
Statute.
From the Complaint it is plain that this case involves only the
request for information under Sec. 14(b)(4) of the Statute and does not
involve the conduct of the survey, /6/ as to which NTEU either expressly
consented or, at the least, knowingly acquiesced; or the meetings with
employees, /7/ either prior to the survey or thereafter to discuss the
results of the survey, as NTEU received notice and was represented at
such meetings. The obligation to furnish data, which is derived from
Sec. 14(b)(4) of the Statute, Veterans Administration Regional Office,
Denver, Colorado, 7 FLRA No. 100, 7 FLRA 629 (1982); Veterans
Administration Regional Office, Denver, Colorado, 10 FLRA No. 78, 10
FLRA 453, 455 (1982), is, inter alia, conditioned on such data being, "
. . . necessary for full and proper discussion, understanding, and
negotiation of subjects within the scope of collective bargaining" (Sec.
14(b)(4)(B)).
The virtually identical survey and a similar request for the feedback
reports had been made by NTEU and denied by management in Bureau of
Government Financial Operations, 2 FLRA No. 6, 2 FLRA 40 (1979) which
arose under, and was decided pursuant to, Executive Order 11491, as
amended. Although the Authority noted, in adopting the findings,
conclusions and recommendations of Judge Naimark, that its ". . .
decision and order does not prejudge in any manner either the meaning or
the application of related provisions in the new Statute or the result
which would be reached by the Authority if the case had arisen under the
Statute rather than the Executive Order" (2 FLRA at 41, n. 4), that
decision, if not binding, is persuasive precedent unless the provisions
of the Statute governing the production of data require a different
result, or unless the facts are sufficiently different as to render the
Authority's decision distinguishable and, therefore, inapplicable. For
reasons set forth hereinafter, I do not find that the provisions of Sec.
14(b)(4) of the Statute require a different result nor do I find the
facts different in any material respect so as to render the Authority's
decision in Bureau of Government Financial Operations, supra, either
distinguishable or inapplicable.
In Bureau of Government Financial Operations, supra, Judge Naimark
had found, inter alia:
"10. By letter dated April 13, 1978 Complainant requested,
pursuant to the Order and the Freedom of Information Act, that
Respondent furnish it with all statistical and analytical data
concerning the MAS survey (footnote reference to an EEO survey
omitted). The written request encompassed the resultant scores at
the lowest organizational level.
"11. On May 4, 1978 Respondent advised Complainant that it
would receive the data requested in sanitized form on or before
June 15 . . . .
"12. On June 15, 1978 all MAS survey results were furnished
Complainant. However, the scores sheets were sanitized, and pages
involving levels below the Assistant Commissioner were scrambled
/8/ to protect the identity of the supervisors /8A/ of those lower
levels or units. A collective bargaining agreement was reached by
the parties thereafter which became effective on October 19, 1978
. . ." (2 FLRA at 46-47).
/8A/ Without this sanitization, Complainant would have been able
to obtain the identity of about 135-140 supervisors at the lower
level. Judge Naimark then stated, in part, as follows:
". . . A primary issue for determination herein is whether the
Complainant is entitled to the MAS survey, as requested, in order
to fulfill its duty as the collective bargaining representative.
Although Respondent furnished the data to the Assistant
Commissioner's level, it resists supplying the code or identity
for the lower levels on the further ground that such information
is not needed by Complainant in its role as bargaining agent.
"It is now well established, in both the private and public
sectors, that an employer must furnish information to the union
representing its employees which is relevant and necessary to
proper representation. NLRB v. Whitin Machine Workers, 217 F.2d
593 (C.A. 4), cert. denied 349 U.S. 905; Department of Health,
Education and Welfare, Social Security Administration, Kansas City
Payment Center, Bureau of Retirement and Survivors Insurance,
A/SLMR No. 411. The right to such information exists not only for
negotiating an agreement with the employer, but for the purpose of
administering such collective bargaining agreement. In either
instance the employer is obligated to supply the material
requested to further intelligent representation. Moreover, in the
private sector, at least, it is sufficient if the information is
of probable or potential relevance to give rise to an obligation
by the employer to provide it.
"Complainant herein urges that an identification of the unit
levels is necessary and relevant to intelligent bargaining. It
asserts that once it becomes known where the weaknesses exist, in
respect to the relationships between supervisors and employees,
the union would be able to alter its bargaining demands, e.g.
require more stewards in troublesome areas. Further, the union
deems itself as (sic) a disadvantage vis a vis management in
bargaining sessions since it does not know whether the data
applies to unit or non-unit employees, professional or
non-professional, permanent or seasonal, long-time or short-time
employees. Thus, Complainant insists the sanitized results
furnished it do not suffice for strategy meetings, negotiations
and other representational duties.
"While not free from doubt, I reject the union's argument in
this respect. The MAS survey was essentially a questionnaire
designed to gather information relating to subjective opinions of
employees. It is true the data would hopefully enable supervisors
to utilize their human resources in better fashion, but the survey
itself did no more than yield attitudes of individuals towards
management, the working environment and attendant conditions of
employment. I construe this type data to be different in nature
from factual information governed (sic) (gathered) by an employer
re wages or existing conditions. Statistical reports re work
performance could, in my opinion, certainly be relevant and
necessary in administering a contract, filing grievances, or
bargaining with an employer. However, I view the data acquired by
the survey herein to be distinguishable from such statistics. It
does not reflect performance of employees, qualitatively or
quantitatively, nor does it deal with facts re such items as
security, promotions, upgrades, vacations, or other such
conditions of employment. MAS was intended for the guidance
(footnote omitted) of unit supervisors, and to be used at their
discretion, in improving relationships with employees. As a
managerial tool the survey yielded no statistical data which could
inure to the single advantage of management in its bargaining with
Complainant. (2 FLRA at pp. 50-51).
. . . .
". . . In truth, the MAS survey was an evaluation by employees
of their working conditions, morale, and interchange with the
supervisors. I do not agree that such evaluations were relevant
or necessary to enable Complainant to fulfill its duties as
bargaining agent. Opinions of employees - which could well have
been ascertained directly by the union in any event - are scarcely
similar to performance data which Complainant requires to bargain
with management re conditions of employment. A statistical
analysis founded on such a conceptual survey might be interesting,
but I conclude it is not necessary for proper representation.
Therefore, I find that Respondent's failure to supply the
unsanitized results of the lower levels was not a refusal to
bargain and did not violate Section 19(a)(1) and (6) of the Order
. . . " (2 FLRA at 52).
The standard applied by Judge Naimark, and adopted by the Authority,
in Bureau of Government Financial Operations, supra, that information
must be furnished, "which is relevant and necessary to proper
representation," is wholly consistent with the mandate of Sec.
14(b)(4)(B) that data must be furnished when it is " . . . necessary for
full and proper discussion, understanding, and negotiation of subjects
within the scope of collective bargaining". Director of Administration,
Headquarters, U.S. Air Force, 6 FLRA No. 24, 6 FLRA 110 (1981). Indeed,
if the requirement of Sec. 14(b)(4)(B), set forth above, differs at all
it would by way of limitation to "subjects within the scope of
collective bargaining." I have examined in detail the questions posed by
the survey, which are set forth in General Counsel Exhibits 3 and 4, and
fully agree with Judge Naimark's characterization that they are
"designed to gather information relating to subjective opinions of
employees" and that "the survey did no more than yield attitudes of
individuals toward management, the working environment and attendant
conditions of employment." For example: "Work Satisfaction" was
addressed by: Q. 6, "How much of your work do you enjoy doing?"; /7/
Q. 26, "How do you feel about the kind of work you do?"; Q. 44,
"Everything considered, do you get a lot of satisfaction from the work
you do?"; Q. 63, "How often do you leave work feeling satisfied with
what you have done?"; and Q. 81, "Is the kind of work you do
interesting and enjoyable?" (G.C. Exhs. 3 and 4, p. 23). "Performance
Standards" was addressed by: Q. 38, "Have performance standards been
established for your most important work objectives?"; /8/ Q. 91, "Do
the performance standards for your job clearly specify the quantity of
work expected?"; Q. 92, "Do the performance standards for your job
include clear definitions for the quality of work to be completed?"; Q.
105, "Are the performance standards for your job clearly or poorly
defined?" (G.C. Exh. 4, p. 35).
No statistical analysis of the answers to any individual question was
provided by IBRIC. Rather, the answers were fed into a computer by
IBRIC and a "score" for the category, e.g., "Work Satisfaction" or
"Performance Standards", was derived (See, G.C. Exh. 21, Attachments).
I fully agree with the conclusion of Judge Naimark, inter alia, that the
survey did not "reflect performance of employees, qualitatively or
quantitatively, nor does it deal with facts re such items as security,
promotions, /11/ upgrades, vacations, or other conditions of
employment"; that " . . . the survey yielded no statistical data which
could inure to the single advantage of management in the bargaining with
Complainant"; and that the " . . . survey was an evaluation by
employees of their working conditions, morale, and interchange with the
supervisors". I conclude that such evaluations by individual supervisor
unit, i.e., the feedback reports, were not necessary for full and proper
discussion, understanding, and negotiation of subjects within the scope
of collective bargaining as provided by Sec. 14(b)(4)(B) of the Statute.
In Bureau of Government Financial Operations, supra, NTEU had sought
the information for use in negotiations (see, 2 FLRA at 46) and had
asserted that such information would enable it "to alter its bargaining
demands, e.g. require more stewards in troublesome areas." Nevertheless,
Judge Naimark rejected NTEU's argument. Here, there was no bargaining
for which the data was sought; no basis was shown that feedback reports
were necessary for full and proper discussion, understanding, and
negotiation of subjects within the scope of collective bargaining; and
examination of the format and content of the District and Region VII
Roll-up reports (G.C. Exh. 21, Attachment), which would have been
identical for the feedback reports, except, of course, that the "scores"
for each category would have reflected the responses for the much
smaller individual supervisor unit, and find no basis whatsoever that
the feedback reports were necessary for full and proper discussion,
understanding, and negotiation of subjects within the scope of
collective bargaining. To be sure, the record does show that at
meetings held to discuss the feedback reports there was discussion of
flextime, starting work time, etc. as General Counsel states in his
brief (General Counsel Brief, p. 25); but we are not here concerned
with those meetings and feedback reports did not address matters such as
flextime, starting worktime, etc. Whether NTEU's participation in such
discussions would have been enhanced by having the District and Region
VII roll-up reports available at the time of these meetings is neither
relevant nor material for the reason that, for reasons more fully set
forth hereinafter, NTEU acquiesced in, if it did not, in fact, agree to,
the deferral of delivery of the roll-up reports until well after the
meetings.
No decision has been found subsequent to Bureau of Government
Financial Operations, supra, which has dealt with the obligation to
furnish survey data (other cases, by way of example: Director of
Administration, Headquarters, U.S. Air Force, supra, and Internal
Revenue Service, Memphis Service Center and National Treasury Employees
Union, Case No. 4-CA-30371 (OALJ 84-66, May 17, 1984) have involved
requests for information of a different sort). The Authority in several
cases has found direct communication with employees not to violate the
Statute. For example: in Kaiserslautern American High School,
Department of Defense Dependents Schools, Germany North Region, 9 FLRA
No. 28, 9 FLRA 184 (1982), the polling of employees with regard to the
question of employee morale was held not to have been in violation of
Secs. 16(a)(1) or (5); in Internal Revenue Service and Brookhaven
Service Center, 9 FLRA No. 132, 9 FLRA 930 (1982), the interview of unit
employees in preparation for unfair labor practice and arbitration
hearings was held not to have been in violation of Secs. 16(a)(1), (5)
or (8); in Internal Revenue Service (District, Region, National Office
Unit), 14 FLRA No. 92 (1984), interview of unit employees on the
accuracy of the Employee Plans Case Assignment Guide was held not to
have violated Sec. 14(a)(2)(A) (i.e., not a formal discussion) because,
" . . . Respondent was merely attempting to gather factual information
to determine whether its case assignment procedures were working as
envisioned when the guide was created, and involved no attempt to deal
directly with unit members or to undermine the status of NTEU as the
employees' exclusive representative; in Internal Revenue Service
(District, Region, National Office Unit), 11 FLRA No. 23, 11 FLRA 69
(1983), it was held that, while interviews were formal discussions, the
union was entitled to be present, and Respondent violated Secs. 16(a)(1)
and (8) of the Statute by denying the union's request to be present,
Respondent did not bypass the union by meeting directly with unit
employees because, "The interviews were held solely for the purpose of
determining whether certain information obtained from its group managers
was accurate and obtaining factual information." (11 FLRA at 74) (aff'd
sub nom. National Treasury Employees Union v. Federal Labor Relations
Authority, No. 83-1295, 725 F.2d 126 (D.C. Cir. 1984); and in Division
of Military and Naval Affairs, State of New York, Albany, New York, 8
FLRA No. 71, 8 FLRA 307 (1982), it was held that distribution of a
memorandum to bargaining unit employees did not violate the Statute
because the, " . . . memorandum distributed to bargaining unit employees
was based upon information disclosed to the Union . . . and long
standing personnel policies and practices . . . it involved no attempt
by the Respondent to bypass the exclusive bargaining representative and
deal directly with employees . . . . " (8 FLRA at 321-322) (See, also,
Department of Health and Human Services, Social Security Administration,
Bureau of Field Operations, San Francisco, California, 10 FLRA No. 24,
10 FLRA 115, 118, 119 (1982)). While not involving the production of
information, these decisions do nothing to support the view that the
feedback reports were necessary for full and proper discussion,
understanding, and negotiation of subjects within the scope of
collective bargaining. In addition, in Department of Transportation,
Federal Aviation Administration and Professional Airways Systems
Specialists, Administrative Law Judge Decision Report No. 36, April 12,
1984, Judge Sternburg held, in a decision which has become final in the
absence of exceptions, that a "Feedback Questionnaire" to unit employees
which, inter alia, solicited views and opinions on conditions of
employment violated Secs. 16(a)(1) and (5) because the questionnaire
sought, " . . . to obtain suggestions for improvement of the operation";
was "not limited to the employees' evaluations of the existing
conditions of employment . . . "; and Respondent's subsequent
memorandum, "informed the employees that it would try to do all the
constructive things the employees have encouraged Respondent to do in
their respective answers to the feedback questionnaire." In Department
of Defense, Office of Dependents Schools and Overseas Education
Association, Case No. 3-CA-30302 (OALJ 84-01, October 7, 1983), Judge
Sternburg similarly held that a "New Employee Questionnaire" violated
Secs. 16(a)(1) and (5) because the questionnaire, " . . . solicited the
employee's 'suggestions for improvements' . . . it is the Union which
speaks for unit employees, and as such, is the only person to be
consulted with respect (sic) suggestions for improvement of working
conditions . . . had there been no solicitation or request for
suggestions attached to the questionnaire, I would find the
questionnaire, standing alone, not to be violative of the Statute . . .
. "
I find nothing in the foregoing decisions to indicate that the
feedback reports were "necessary for full and proper discussion,
understanding, and negotiation of subjects within the scope of
collective bargaining," as required by Sec. 14(b)(4)(B), whether or not
NTEU's consent was required to conduct the survey; and, as previously
stated, I find nothing in the record that indicates that the feedback
reports were necessary for full and proper discussion, understanding,
and negotiation of subjects within the scope of collective bargaining.
Although I have concluded that the record fails to show that the
feedback reports were necessary for full and proper discussion,
understanding, and negotiation of subjects within the scope of
collective bargaining, even if some degree of relevancy and necessity
were shown, the decision of the Supreme Court in Detroit Edison Co. v.
NLRB, 440 U.S. 301 (1979) persuades me that confidentiality of feedback
reports, inasmuch as the record shows without contradiction that their
disclosure would destroy the effectiveness of the survey in two ways:
first, participation by employees in answering the survey substantially
decreases and second, the answers by participating employees lost
validity, where confidentiality of feedback reports has not been
maintained, must be carefully balanced against the need shown. /13/
With respect to integrity of the test, the court stated, in part, as
follows:
"A union's bare assertion that it needs information to process
a grievance does not automatically oblige the employer to supply
all the information in the manner requested. The duty to supply
all the information under Sec. 8(a)(5) turns upon 'the
circumstances of the particular case.' . . . and much the same may
be said for the type of disclosure that will satisfy that duty . .
. Throughout this proceeding, concern for test secrecy has been
essentially conceded. The finding by the Board that this concern
did not outweigh the Union's interest in exploring the fairness of
the Company's criteria for promotion did not carry with it any
suggestion that the concern was not legitimate and substantial . .
. The Board has cited no principle of national labor policy to
warrant a remedy that would unnecessarily disserve this interest,
and we are unable to identify one." (440 U.S.at 314-315)
. . . .
" . . . The Board in this case having identified no
justification for a remedy granting such scant protection to the
Company's undisputed and important interests in test secrecy, we
hold that the Board abused its discretion . . . . " (440 U.S.at
316-317).
It is clear that NTEU conceded Respondent's concern for
confidentiality of the feedback reports. Thus, NTEU proposed, inter
alia, elimination of the identity of the supervisory unit. Dr. Coray
testified that even with such identification removed,
" . . . The psychometric principles built into the system are
such that we get very distinctive differences between work groups,
and the way facilitators share the information that's in the
feedback reports or that supervisors share that information is
such that these distinctive differences would be apparent in the
feedback reports themselves." (Tr. 248-249).
This is, that the work groups could be identified even if the feedback
reports were sanitized. Dr. Coray also testified that,
"Releasing the feedback reports would undermine the basic
principles of the survey. Without the kinds of agreements that we
have made about confidentiality and anonymity, we would be unable
to get responses to the survey. The Responses, if any, that we
did get would be inaccurate . . . . " (Tr. 247).
Detroit Edison, supra, certainly, does not absolutely protect
secrecy, or confidentiality; but it does unequivocally direct that
where, as here, secrecy is essential to the integrity of the testing
process, that interest in test secrecy must be recognized. As
applicable here, in the absence of a strong showing of necessity for the
feedback reports, NTEU's request must be denied. As noted, the record
discloses no showing of necessity for the feedback reports and,
accordingly, it is unnecessary to consider whether, if disclosure were
required, other conditions should attach.
In view of my conclusion, it is unnecessary, to decide, and I
expressly do not decide, whether other conditions of Sec. 14(b)(4) have
been satisfied, namely whether such data (feedback reports) " . . . is
normally maintained by the agency in the regular course of business
(Sec. 14(b)(4)(A);" . . . is reasonably available . . . . " (Sec.
14(b)(4)(B)); or " . . . does not constitute grievance, advice,
counsel, or training provided for management officials or supervisors,
relating to collective bargaining" (Sec. 14(b)(4)(C)).
DEFERRAL OF DELIVERY OF ROLL-UP REPORTS NOT AN UNFAIR LABOR
PRACTICE
As noted above, well before the survey was conducted, Respondent
agreed to provide the roll-up reports for the District, which would
include the St. Louis inspection station, and for Region VII; this was
reiterated by Mr. Shane's letter of April 4, 1983, and by Mr. Vince's
memorandum of April 18, 1983. The survey was conducted on April 11 and
Respondent received the roll-up reports in July, 1983; however, the
roll-up reports were not furnished to NTEU until December 11, 1983. It
is equally obvious that Respondent could have furnished the roll-up
reports upon receipt in July, 1983, and that NTEU could have asked for
delivery of the roll-up reports upon receipt. In fact, NTEU did not ask
for delivery of the roll-up reports and Respondent did not deliver them
until December, 1983. The reason was clear. NTEU sought the feedback
reports and, while it also sought the roll-up reports, was not willing
to accept the roll-up reports in satisfaction of its demand for data so
no complete agreement on the production of information was reached. Ms.
Schneider stated that it had always been the practice, ". . . that we
had to finalize the agreement before we could implement any of the
parts." (Tr. 121) Mr. Vince stated, ". . . So we have not reached
agreement on the difference of positions. They had never requested them
(the roll-up reports), although they had been offered on a number of
occasions" (Tr. 200) and that, ". . . it was simply a matter that they
wished to have a complete agreement before any exchange of information
other than what was provided was made available." (Tr. 200). I find, as
Mr. Vince testified, that NTEU never asked for delivery of the roll-up
reports prior to completion of an agreement, which was never reached
because NTEU insisted upon the feedback reports which Respondent refused
to provide. This is wholly consistent with Ms. Schneider's testimony,
was not refuted, and is wholly consistent with the entire record.
I do not view the matter as involving a waiver, which to me means a
relinquishment or abandonment of some right or claim, and clearly NTEU
did not relinquish or abandon its request for the roll-up reports; but,
rather, the conscious deferral of delivery of the roll-up reports.
Since NTEU never asked that the roll-up reports be delivered prior to
full agreement, it can not be said that Respondent refused to deliver
them. The charges (G.C. Exhs. 1(a), (b) and (c) did not refer to
roll-up reports, but, instead, to: "'all statistical documentation,
printouts, "MAS Feedback Reports," and survey information which is
provided to facilitators by IBRIC . . .'"; however, the Complaint,
which issued on November 28, 1983, did, also, refer to the roll-up
reports (G.C. Exh. 1(d), Par. 6(a)). On December 11, 1983, Respondent
furnished the roll-up reports. Until the Complaint issued, production
of the roll-up reports separate and apart from NTEU's broader request
had never been made and Respondent did then furnish the roll-up reports.
Under the circumstances, since NTEU had knowingly deferred its request
for the roll-up reports, Respondent did not violate Secs. 16(a)(5) or
(1) of the Statute by failing to provide the roll-up reports at least
prior to issuance of the Complaint and, because of NTEU's deferral of
its request and its failure to request delivery of the roll-up reports,
I do not find even a technical violation between the date of issuance of
the Complaint, November 28, 1983, and the date the roll-up reports were
actually furnished, December 11, 1983.
Accordingly, having found that Respondent did not violate Sec.
16(a)(1), (5) and (8) of the Statute, 5 U.S.C. 7116(a)(1), (5) and (8),
as alleged, it is recommended that the Authority issue the following:
ORDER
The Complaint in Case No. 7-CA-30466 be, and the same is hereby,
dismissed.
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: June 27, 1984
Washington, DC
--------------- FOOTNOTES$ ---------------
/1/ Section 7114(b)(4) provides:
(b) The duty of an agency and an exclusive representative to
negotiate in good faith under subsection (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(.)
/2/ The foregoing conclusion is consistent with Bureau of Government
Financial Operations, 2 FLRA 40 (1979), decided by the Authority under
Executive Order 11491, as amended, and relied upon by the Judge in
reaching his conclusion that the Respondent did not violate the Statute
by refusing to furnish the requested feedback reports to the Union
herein. Thus, in Bureau of Government Financial Operations, as here,
the Authority adopted the Judge's conclusion that management's refusal
to furnish requested data substantially identical at the feedback
reports at issue herein did not constitute an unfair labor practice in
the circumstances on that case. The roll-up reports which the Authority
here finds, contrary to the Judge's conclusion, to have been furnished
to the Union by the Respondent in an untimely manner, and therefore in
violation of section 7116(a)(1), (5) and (8) of the Statute, were not
the subject of a request by the Complainant union in Bureau of
Government Financial Operations.
/3/ For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
Statute reference, e.g., Section 7116(a)(5) will be referred to, simply,
as "Sec. 16(a)(5)".
/4/ For example, questions 3, 22, 41, 60 and 79 relate to "Training
Effectiveness" (G.C. Exhs. 3 and 4 at p. 15). Although G.C. Exh. 3
shows only 16 categories ("Performance Standards" and "Performance
Management Outcomes" not have been included) G.C. Exh. 4 shows 18
categories. Regardless of the number of categories scored, the same 110
questions were to be answered. The 16-18 categories are further divided
into seven groups (some of which bear a connotation quite different from
normal usage, e.g. "Hygiene" is "Opportunity For Promotions";
"Maintenance" includes "Fairness of Management", "Work Satisfaction",
and "Morale") as follows: Management (1-4); Maintenance (5-7);
Hygiene (9); Adoption (9-10); Programs (11-13) (11 only on G.C. Exh.
3); Organizational Integration (14-17); and Staffing (18) (G.C. Exh.
4).
/5/ I am well aware that Ms. Schneider had been led to believe by Mr.
Olson, one of the facilitators, that there would be additional "roll-up
reports" (Tr. 71-72); however, this was not explored with Mr. Olson and
the record does not show that there were any roll-up reports other than
as noted by Mr. Vince in G.C. Exh. 16, i.e., a roll-up report for the
Kansas City District and for Region VII.
/6/ See, for example, Department of Health, Education and Welfare,
Social Security Administration, Bureau of Retirement and Survivors
Insurance, Northeastern Program Service Center, 1 FLRA No. 59, 1 FLRA
508 (1979); Iowa National Guard and National Guard Bureau, 8 FLRA No.
101, 8 FLRA 500 (1982); Kaiserslautern American High School, Department
of Defense Dependents Schools, Germany North Region, 9 FLRA No. 28, 9
FLRA 184 (1982); Department of Transportation, Federal Aviation
Administration, Washington, DC and Professional Airways System
Specialists, Case No. 8-CA-20269 (OALJ 83-72, April 6, 1983); United
States Customs Service and National Treasury Employees Union and All
National Treasury Employees Union, United States Customs Service
Chapters, Case No. 3-CA-20772 (OALJ 83-90, May 24, 1983).
/7/ See, for example, Social Security Administration, Baltimore,
Maryland, 9 FLRA No. 124, 9 FLRA 909 (1982); Department of Health and
Human Services, Social Security Administration, Bureau of Field
Operations, San Francisco, California, 10 FLRA No. 24, 10 FLRA 115
(1982); Internal Revenue Service (District, Region, National Office
Unit), 11 FLRA No. 23, 11 FLRA 69 (1983), aff'd sub nom. National
Treasury Employees Union v. Federal Labor Relations Authority, No.
83-1295 (D.C. Cir. Jan. 26, 1984); Internal Revenue Service (District,
Region, National Office Unit), 14 FLRA No. 92 (1984).
/8/ Here, the "resultant scores at the lowest organizational level"
were, and are, identified as "feedback reports." Precisely how the score
sheets were "scrambled" in Bureau of Government Financial Operations was
not shown. Here, of course, NTEU specifically conditioned its request
of March 18, 1983, to "(information appropriately sanitized to safeguard
employee and supervisor confidentiality)" and the "scrambling" here
consisted of combining the feedback reports into roll-up reports.
Nevertheless NTEU's request and the data furnished by management in each
instance appears to have been indistinguishable in substance.
/9/ Multiple choice answers were provided for each question. For
example, the choice of answers for Q. 6 were:
A. Almost none
B. Less than half
C. About half
D. More than half
E. Nearly all
/10/ The choice of answers for Q. 38 were:
A. No performance standards exist
B. Only a few
C. Some
D. Almost all
E. All important objectives are covered.
/11/ "Opportunity For Promotions" was addressed by: Q. 8, "Describe
the chances for promotion for people in your line of work in the
organization." "A. Very poor; B. Poor; C. Fair; D. Good; E.
Outstanding; Q. 27, "Do people in your work group get considered for
higher level job openings?" "A. Almost always; B. Usually; C.
Sometimes; D. Seldom; E. Almost never; Q. 46, "How many people in
your work group believe the opportunities for promotions are good in the
organization?" "A. None; B. A few; C. About half; D. Most; E. Almost
all; Q. 83, "How do the opportunities for promotions in the
organization compare to those available elsewhere?" "A. Much better
here; B. Somewhat better; C. About the same; D. Somewhat worse; E.
Much worse here. (G.C. Exhs. 3 and 4, p. 27).
/12/ In this respect, I do not agree with Judge Naimark's statement
in Bureau of Government Financial Operations, supra, that " . . . I do
not consider it (Detroit Edison) apposite or controlling . . .." (2 FLRA
at 49) as it applies here. Obviously, Judge Naimark referred only to
that portion of Detroit Edison which referred to preservation of
employee confidence, "Protection was afforded therein to employees who
took aptitude tests . . . . Unless a particular applicant consented,
the employer was not obliged to turn over to the union the test scores
for such individual . . . . " (2 FLRA at 49). Presumably because the
integrity of the survey was not raised, Judge Naimark did not discuss,
or refer in any manner to, the second issue decided in a Detroit Edison
case, namely integrity of the aptitude test.