Bureau of Government Financial Operations (Respondent) and National Treasury Employees Union (Complainant) 

 



[ v02 p40 ]
02:0040(6)CA
The decision of the Authority follows:


 
 2 FLRA No. 6
 
 BUREAU OF GOVERNMENT FINANCIAL OPERATIONS
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Complainant
 
                                            Assistant Secretary
                                            Case No. 22-09144(CA)
 
                            DECISION AND ORDER
 
    ON APRIL 23, 1979, ADMINISTRATIVE LAW JUDGE WILLIAM NAIMARK ISSUED
 HIS RECOMMENDED DECISION AND ORDER 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 RESPONDENT FILED
 EXCEPTIONS WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
 DECISION AND ORDER.  /1/
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
 TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
 NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
 (44 F.R. 44741, JULY 30, 1979).  THE AUTHORITY CONTINUES TO BE
 RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN
 SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (92 STAT. 1215).
 
    THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
 REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
 REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
 AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS ARE
 HEREBY AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
 RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS CASE,
 INCLUDING THE EXCEPTIONS FILED BY THE RESPONDENT, THE AUTHORITY HEREBY
 ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, /2/ CONCLUSIONS AND
 RECOMMENDATIONS UNDER THE CIRCUMSTANCES HEREIN, NOTING PARTICULARLY THAT
 THERE IS NO EVIDENCE THAT AT THE TIME IT REQUESTED THE UNSANITIZED
 SURVEY RESULTS, THE COMPLAINANT ASSERTED ANY VALID REASON AS TO WHY SUCH
 INFORMATION WAS NECESSARY AND RELEVANT TO ITS DUTIES AS A BARGAINING
 AGENT.  /3/
 
                                 ORDER /4/
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
 NO. 22-09144(CA) BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., NOVEMBER 2, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                   FEDERAL LABOR RELATIONS AUTHORITY /5/
 
    JOSEPH S. SMOLEN
 
    HAROLD H. HOWARD
 
    LABOR MANAGEMENT RELATIONS SPECIALISTS
 
    BUREAU OF GOVERNMENT FINANCIAL OPERATIONS
 
    TREASURY ANNEX
 
    MADISON & PENNSYLVANIA AVENUES
 
    WASHINGTON, D.C.  20226
 
                            FOR THE RESPONDENT
 
    JAMES R. LAWRENCE, ESQUIRE
 
    NATIONAL TREASURY EMPLOYEES UNION
 
    1730 K STREET, N.W., SUITE 1101
 
    WASHINGTON, D.C.  20006
 
                            FOR THE COMPLAINANT
 
    BEFORE:  WILLIAM NAIMARK
 
                         ADMINISTRATIVE LAW JUDGE
 
                            DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    PURSUANT TO A NOTICE OF HEARING ON COMPLAINT ISSUED ON DECEMBER 1,
 1978 BY THE REGIONAL ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES
 ADMINISTRATION, U.S.  DEPARTMENT OF LABOR, PHILADELPHIA REGION, A
 HEARING WAS HELD BEFORE THE UNDERSIGNED ON FEBRUARY 1 AND 2, 1979 AT
 WASHINGTON, D.C.
 
    THIS PROCEEDING WAS INITIATED UNDER EXECUTIVE ORDER 11491, AS AMENDED
 (HEREIN CALLED THE ORDER), BASED ON A COMPLAINT FILED ON AUGUST 1, 1978
 BY NATIONAL TREASURY EMPLOYEES UNION (HEREIN CALLED COMPLAINANT) AGAINST
 THE BUREAU OF GOVERNMENT FINANCIAL OPERATIONS (HEREIN CALLED
 RESPONDENT).  IT WAS ALLEGED IN THE COMPLAINT THAT RESPONDENT VIOLATED
 SECTIONS 19(A)(1) AND (6) OF THE ORDER BY REFUSING AND DENYING A
 REQUEST, MADE BY COMPLAINANT ON APRIL 13, 1978, FOR ACCESS TO THE RESULT
 OF A SURVEY CONDUCTED BY RESPONDENT OF EMPLOYEE ATTITUDES.  RESPONDENT
 FILED RESPONSE TO THE COMPLAINT ON AUGUST 29, 1978 IN WHICH IT DENIED
 THE COMMISSIONS OF ANY UNFAIR LABOR PRACTICES.  /6/
 
    BOTH PARTIES WERE REPRESENTED AT THE HEARING, WERE AFFORDED FULL
 OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE AND TO EXAMINE AS WELL AS
 CROSS-EXAMINE WITNESSES.  THEREAFTER, BOTH PARTIES FILED BRIEFS WHICH
 HAVE BEEN DULY CONSIDERED.
 
    UPON THE ENTIRE RECORD HEREIN, FROM MY OBSERVATION OF THE WITNESSES
 AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE ADDUCED
 AT THE HEARING, I MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS:
 
                             FINDINGS OF FACT
 
    1.  AT ALL TIMES MATERIAL HEREIN COMPLAINANT HAS BEEN, AND STILL IS,
 THE COLLECTIVE BARGAINING REPRESENTATIVE OF RESPONDENT'S
 NON-PROFESSIONAL AND WAGE GRADE EMPLOYEES.
 
    2.  BY LETTER DATED NOVEMBER 22, 1977 RESPONDENT INFORMED COMPLAINANT
 THAT IT WOULD BEGIN CONDUCTING A MANAGEMENT SURVEY (HEREIN CALLED MAS)
 ON DECEMBER 12, 1977.  THE UNION WAS APPRISED IN THE LETTER THAT
 EMPLOYEES WOULD BE REQUESTED TO ANSWER VARIOUS QUESTIONS IN THE SURVEY
 AND A COPY OF THE QUESTIONNAIRE WAS ENCLOSED THEREWITH.  MOREOVER, THE
 STATED PURPOSES OF THE SURVEY WERE TO:  (A) PROVIDE STATISTICAL FEEDBACK
 TO THE MANAGER RE THEIR EMPLOYEES' ATTITUDES ABOUT MANAGEMENT IN EACH
 COMPONENT SUPERVISED BY A MANAGER;  (B) PROVIDE COMPARATIVE DATA RE
 ATTITUDES OF EMPLOYEES IN A GIVEN COMPONENT CONTRASTED WITH EMPLOYEES'
 ATTITUDES IN OTHER COMPONENTS;  (C) PROVIDE COMPARATIVE DATA RE
 ATTITUDES OF RESPONDENT'S EMPLOYEES CONTRASTED WITH THE ATTITUDES OF
 EMPLOYEES IN OTHER BUREAUS OF THE TREASURY DEPARTMENT.
 
    3.  SUBSEQUENT TO NOVEMBER 22, 1977 THE PARTIES HEREIN DISCUSSED THE
 PROSPECTIVE SURVEY.  ALTHOUGH THEY DID NOT REGISTER OBJECTION TO THE
 SURVEY AND DID ASSENT THERETO, COMPLAINANT'S REPRESENTATIVES, SUSAN
 MCCLUSKEY AND FRANK FERRIS, INSISTED THAT THE UNION SHOULD HAVE A COPY
 OF THE RESULTS.  THE UNION REPEATED ITS REQUEST IN DECEMBER.  DESPITE
 THE FACT THAT MANAGEMENT WAS WILLING TO GIVE THE MAS RESULTS TO
 COMPLAINANT, IT WAS NOT CERTAIN TO WHAT EXTENT THE DATA SHOULD BE
 DIVULGED.
 
    4.  IN JANUARY, 1978, THE UNION PUBLISHED ITS NEWSLETTER.  "SNOOPY",
 IN WHICH IT URGED ALL EMPLOYEES WHO ARE ASKED TO COMPLETE THE
 QUESTIONNAIRE, TO SENT MANAGEMENT A MESSAGE AS TO HOW POOR CONDITIONS
 WERE AT THE ACTIVITY.
 
    5.  THEREAFTER THE PARTIES AGAIN DISCUSSED THE PROPOSED MAS.
 RESPONDENT WAS RELUCTANT TO DISCLOSE ANY DATA WHICH WOULD REVEAL THE
 IDENTITY OF THE SUPERVISORS OR MANAGERS BELOW THE LEVEL OF ASSISTANT
 COMMISSIONER.  FERRIS, WHO INSISTED UPON SUCH DATA, REMARKED THE UNION
 WOULD SABATAGE THE RESULTS AND PUBLISH THE NAMES OF SUPERVISORS WHO
 FARED BADLY IN THE SURVEY.  /7/
 
    6.  AS A RESULT OF THE DISCUSSIONS BETWEEN THEM, AND IN ORDER TO
 FURTHER A COOPERATIVE UNDERTAKING, BOTH PARTIES SIGNED A JOINT STATEMENT
 OF FEBRUARY 2, 1978 DIRECTED TO ALL HEADQUARTERS EMPLOYEES.  THE MEMO
 ANNOUNCED THAT, STARTING FEBRUARY 6, 1978, A MANAGEMENT SURVEY WOULD
 BEGIN SEEKING TO IDENTIFY ATTITUDES AND PROBLEMS OF EMPLOYEES;  THAT
 BOTH THE UNION AND THE EMPLOYEES AGREED THE SURVEY WOULD BE A HELPFUL
 AND BENEFICIAL TOOL TO ASSESS THE WORK ENVIRONMENT;  AND THAT THE
 UNDERTAKING WAS DESIGNED TO IDENTIFY EMPLOYEE OPINIONS RE THEIR WORKING
 CONDITIONS.  IT WAS ALSO STATED THAT ALL EMPLOYEES SHOULD COMPLETE THE
 SURVEY ACCURATELY.
 
    7.  THE MAS WAS DEVELOPED BY THE INSTITUTE FOR BEHAVIORAL RESEARCH IN
 CREATIVITY.  IT WAS CONDUCTED IN RESPONDENT'S OPERATION IN 1975, AT
 WHICH TIME ALL LEVEL RESULTS WERE FURNISHED THE UNION.  MAS WAS DESIGNED
 TO AID MANAGER AND SUPERVISORS MAKE BETTER USE OF THEIR HUMAN RESOURCES.
  THE SURVEY INVOLVED A 100 ITEM QUESTIONNAIRE RELATED TO 19 DIFFERENT
 ASPECTS OF ORGANIZATIONAL CLIMATE OR MANAGEMENT AREAS.  ANSWERS TO THESE
 QUESTIONS PROVIDE AN ANALYSIS OF THE WORK ENVIRONMENT AS SEEN THROUGH
 THE EYES OF THE EMPLOYEES.  THE 19 FACTORS, TO WHICH THE QUESTIONS ARE
 KEYED, CONSIST OF THE FOLLOWING:
 
    1.  FAIRNESS OF MANAGEMENT
 
    2.  DELEGATION OF AUTHORITY
 
    3.  SUPERVISORY EFFECTIVENESS
 
    4.  PLANNING & ADMINISTRATIVE EFFICIENCY
 
    5.  CLIMATE FOR INNOVATION
 
    6.  WORK SATISFACTION
 
    7.  TRAINING EFFECTIVENESS
 
    8.  PERFORMANCE FEEDBACK
 
    9.  EQUAL EMPLOYMENT OPPORTUNITY FOR WOMEN
 
    10.  EQUAL EMPLOYMENT OPPORTUNITY FOR MINORITIES
 
    11.  OPPORTUNITY FOR PROMOTION
 
    12.  DOWNWARD COMMUNICATION
 
    13.  UPWARD COMMUNICATION
 
    14.  SATISFACTION WITH PAY
 
    15.  MORALE
 
    16.  PHYSICAL WORKING CONDITIONS & EQUIPMENT
 
    17.  CO-WORKER COOPERATION
 
    18.  OPERATIONAL EFFICIENCY
 
    19.  WORKLOAD BALANCE
 
    AFTER THE QUESTIONS HAVE BEEN ANSWERED THE SCORES ARE TABULATED BY
 TWO METHODS:  (A) THE PERCENT OF FAVORABLE RESPONSES BASED ON A
 PERCENTAGE OF EMPLOYEES WHO CHOSE THE MOST FAVORABLE ANSWERS /8/ TO
 QUESTIONS IN A CERTAIN AREA;  (B) THE PERCENTILE RANK SYSTEM WHICH
 DESCRIBES THE SCORE OF A WORK GROUP AND COMPARES IT TO A NORM GROUP.
 THUS, UNDER THE PERCENT SCORING SYSTEM, IF A RESULTANT FIGURE IS 53 FOR
 THE #1 FACTOR, FAIRNESS OF MANAGEMENT, THIS INDICATES THAT 53% OF THE
 EMPLOYEES FELT MANAGEMENT TO BE FAIR.
 
    8.  UPON THE FINAL TABULATIONS OF MAS SCORES EACH SUPERVISOR, WHO
 SUPERVISES A UNIT OF FIVE OR MORE EMPLOYEES, RECEIVES HIS OWN FEEDBACK
 REPORT-- AN ANALYSIS OF HIS WORK ENVIRONMENT.  HE IS EXPECTED TO
 COMMUNICATE TO HIS EMPLOYEES ANY EXISTING PROBLEMS AND THEREBY ATTEMPT,
 BY REASON OF SHARING THE INFORMATION, TO SOLVE DIFFICULTIES WITHIN HIS
 UNIT.  HOWEVER, MANAGEMENT ALLOWS EACH SUPERVISOR TO DECIDE WHETHER HE
 DESIRES TO DISCUSS THE FEEDBACK WITH HIS EMPLOYEES.  /9/ EACH SUPERVISOR
 ALSO RECEIVES A COPY OF THE MAS HANDBOOK TO GUIDE HIM IN UNDERSTANDING
 THE SURVEY, THEIR RELATIONSHIPS TO OTHER SCORES AND TO HELP IMPROVE
 PERFORMANCE WITHIN HIS UNIT.  AS INDICATED IN THE HANDBOOK, THE
 INFORMATION IS INCLUDED ONLY AS A GUIDE TO FUTURE MANAGEMENT ACTIONS AND
 NOT TO BE USED AS DISCIPLINARY OR OTHER ADVERSE PERSONAL ACTION.
 
    9.  NEGOTIATIONS FOR A COLLECTIVE BARGAINING AGREEMENT BETWEEN THE
 PARTIES HEREIN COMMENCED ON FEBRUARY 14, 1978.  ON THAT DATE UNION
 REPRESENTATIVE FERRIS TOLD MANAGEMENT THAT THE MAS WAS ONE OF ITS
 BIGGEST CLUBS;  THAT IF THE RESPONDENT DID NOT RESPOND PROPERLY, THE
 UNION COULD AIR THE MAS DATA OUTSIDE THE BARGAINING ROOM, PUBLISH THE
 BAD SUPERVISOR OF THE MONTH IN ITS NEWSLETTER, AND WOULD GET RESPONDENT
 "WHERE IT HURTS." FERRIS ALSO STATED THAT THE EMPLOYER COULD "BUY IT
 (MAS) BACK" DURING NEGOTIATIONS, SUGGESTING THAT THE UNION WOULD NOT
 PUBLISH THE DATA IF CONTRACT NEGOTIATIONS WERE TO ITS ADVANTAGE.  THE
 UNION REPRESENTATIVE ALSO REMARKED THAT IF MANAGEMENT DID NOT RESPOND
 FAVORABLY DURING NEGOTIATIONS, THE MAS RESULTS COULD BE USED TO
 EMBARRASS MANAGERS.
 
    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.
 /10/ THIS 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.  IN A
 LETTER TO COMPLAINANT DATED THE FOLLOWING DAY RESPONDENT STATED ITS
 DESIRE TO PROTECT THE PRIVACY OF THE SUPERVISORS AND MANAGERS IN RESPECT
 TO THE MAS SURVEY.  THE EMPLOYER STATED THAT THE INFORMATION FURNISHED
 /11/ THE UNION, AND TO BE FURNISHED, REPRESENTED AN HONEST EFFORT TO
 PROVIDE THE MAXIMUM INFORMATION PROVIDED UNDER THE FREEDOM OF
 INFORMATION ACT.  SUBSEQUENTLY, ON MAY 11, 1978, RESPONDENT HAND
 DELIVERED TO COMPLAINANT A LETTER REITERATING ITS INTENTION TO DELIVER
 ALL MAS DATA BY JUNE 15, AND STATING THAT THE DATA RE WORK LEVEL BELOW
 ASSISTANT COMMISSIONER WOULD BE SANITIZED TO PROTECT THE PRIVACY OF THE
 SUPERVISORS.  MOREOVER, RESPONDENT AVERRED IT DID NOT BELIEVE THE
 IDENTIFICATION OF MANAGERS OR SUPERVISORS WAS RELEVANT OR NECESSARY FOR
 THE PURPOSE OF INTELLIGENT BARGAINING.
 
    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 TO
 PROTECT THE IDENTITY OF THE SUPERVISORS /12/ OF THOSE LOWER LEVELS OR
 UNITS.  A COLLECTIVE BARGAINING AGREEMENT WAS REACHED BY THE PARTIES
 THEREAFTER WHICH BECAME EFFECTIVE ON OCTOBER 19, 1978 FOR A TERM OF TWO
 YEARS.
 
                                CONCLUSIONS
 
    APART FROM ITS SUBSTANTIVE DEFENSES, RESPONDENT RAISES SEVERAL
 "PROCEDURAL" GROUNDS FOR DISMISSAL.  /13/ IT CONTENDS THAT:  (1) UNDER 5
 USC 7114(B)(4)(C), WHICH IS THE NEW TITLE VII, FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS ACT, THE OBLIGATION TO BARGAIN DOES NOT
 REQUIRE AN AGENCY TO FURNISH DATA WHICH CONSTITUTES GUIDANCE, ADVICE,
 COUNSEL OR TRAINING FOR MANAGEMENT SUPERVISORS, AND THEREFORE
 RESPONDENT
 MAY NOT BE CHARGED WITH A VIOLATION OF THE ORDER SINCE THE MATERIAL
 SOUGHT HEREIN WAS GUIDANCE AND COUNSEL FOR ITS SUPERVISORS;  (2) THIS
 PROCEEDING IS BARRED BY SECTION 19(D) OF THE ORDER SINCE COMPLAINANT
 PROCEEDED UNDER THE FREEDOM OF INFORMATION ACT, HAVING AN APPEALS
 MECHANISM, TO OBTAIN THE SAME INFORMATION SOUGHT UNDER THE ORDER.
 
    UPON CONSIDERATION OF THE AFORESAID CONTENTIONS, I AM PERSUADED THAT
 NEITHER HAS MERIT.  SECTION 7114(B)(4)(C) OF THE NEW ACT HAS NO
 APPLICABILITY TO THIS MATTER SINCE THE STATUTE BECAME EFFECTIVE AFTER
 THE INCIDENTS HEREIN AND SUBSEQUENT TO THE FILING OF THIS COMPLAINT.  NO
 RETROACTIVE EFFECT MAY BE GIVEN TO THIS LEGISLATIVE.  FURTHER, WHILE
 19(D) OF THE ORDER PRECLUDES RAISING ISSUES UNDER SECTION 19 WHICH MAY
 BE PROPERLY RAISED UNDER AN APPEALS PROCEDURE, THE ISSUE AS TO WHETHER
 RESPONDENT'S FAILURE TO FURNISH THE DATA SOUGHT HEREIN IS AN UNFAIR
 LABOR PRACTICE COULD NOT BE RAISED UNDER THE FDIA APPEALS PROCEDURE.  IN
 DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, REGION VIII, A/SLMR NO.
 1109, JUDGE HALPERN REASONED THAT THE FDIA PROCEDURE, UNDER WHICH A
 UNION APPEALED A DENIAL OF CERTAIN INFORMATION, DID NOT PRECLUDE THE
 UNION ASSERTING A VIOLATION OF 19(A)(6) OF THE ORDER.  I SUBSCRIBE TO
 HIS REASONING AND AGREE THAT THE ISSUE TO BE LITIGATED HEREIN COULD NOT
 HAVE BEEN RAISED ON AN APPEAL UNDER FDIA PROCEDURES.  ACCORDINGLY, I
 DENY THE INSTANCE TO DISMISS BASED ON THE AFOREMENTIONED GROUNDS.
 
    IN RESISTING ITS ALLEGED OBLIGATION TO FURNISH THE CODES FOR THE
 LEVELS BELOW THE POSITION OF ASSISTANT COMMISSIONER, RESPONDENT RAISES
 SEVERAL ISSUES WORTHY OF SERIOUS CONSIDERATION.
 
    (1) THE EMPLOYER MAINTAINS THAT IF IT REVEALS THE WORK LEVELS AND
 THUS IDENTIFIES THE UNITS WITH THEIR ATTENDANT SCORES, THE COMPLAINANT
 WILL BE ABLE TO ASCERTAIN WHO ARE THE SUPERVISORS OF SUCH UNITS.
 MOREOVER, THE EMPLOYER ADVERTS TO THE FACT THAT THE UNION HAS, DURING
 ITS NEGOTIATIONS AS WELL AS AT OTHER TIMES, UTTERED THREATS WHICH WERE
 DIRECTED TOWARD THE SUPERVISORS OR MANAGERS.  THUS, IF A PARTICULAR
 UNIT'S SCORE DOES DISCLOSE A "MORALE" PROBLEM OR A LOW OPINION OF
 "SUPERVISORY EFFECTIVENESS", THE UNION WOULD PUBLISH THERE RESULTS AND
 DESIGNATE THESE SUPERVISORS AS "BAD" ONES.  IN ADDITION, COMPLAINANT
 CONCEDED IT WOULD USE THE SCORES AS A CLUB TO OBTAIN CONCESSIONS FROM
 MANAGEMENT;  THAT IT WOULD "SABOTAGE" THE RESULTS;  AND THAT COMPLAINANT
 WOULD GET THE EMPLOYER "WHERE IT HURTS".  SUCH UTTERANCES, ARGUES
 RESPONDENT, DISCLOSED BAD FAITH INTENTIONS ON THE PART OF THE UNION.
 ACCORDINGLY, IT IS URGED THAT THE BARGAINING AGENT SHOWS A LACK OF GOOD
 FAITH IN ITS REQUEST FOR THE DATA WHICH SHOULD MILITATE AGAINST THE
 EMPLOYER'S OBLIGATION TO SUPPLY THE LOWER LEVEL IDENTITIES.  IN
 ADDITION, RESPONDENT INSISTS THAT FURNISHING SUCH DATA WOULD INVADE THE
 SUPERVISOR'S RIGHT OF PRIVACY, AS ENUNCIATED BY THE SUPREME COURT OF THE
 UNITED STATES IN DETROIT EDISON CO. V. NLRB, U.S. SUPREME COURT, NO.
 77-968 (MARCH 5, 1979).  IN VIEW OF THE UNION'S THREATS AND INTENTIONS
 TO USE THE MAS RESULTS TO EMBARRASS MANAGERS, IT IS CLAIMED THAT THE
 LOWER LEVEL IDENTITIES SHOULD BE KEPT CONFIDENTIAL SO AS TO PROTECT THE
 SUPERVISORS WHO MIGHT BE SUBJECTED TO HARASSMENT.
 
    ALTHOUGH RESPONDENT LAYS STRESS UPON THE DETROIT EDISON CASE, SUPRA,
 I DO NOT CONSIDER IT APPOSITE OR CONTROLLING OF THE CASE AT BAR.
 PROTECTION WAS AFFORDED THEREIN TO EMPLOYEES WHO TOOK APTITUDE TESTS FOR
 THE POSITION OF INSTRUMENT MAN.  UNLESS A PARTICULAR APPLICANT
 CONSENTED, THE EMPLOYER WAS NOT OBLIGED TO TURNOVER TO THE UNION THE
 TEST SCORES FOR SUCH INDIVIDUAL.  THE COURT CONCLUDED THAT THE
 PRESERVATION OF EMPLOYEE CONFIDENCE WAS WELL FOUNDED.  THE RIGHT OF
 PRIVACY WAS PARAMOUNT, IN THAT INSTANCE, TO THE POSSIBLE IMPAIRMENT OF
 THE UNION'S FUNCTION IN PROCESSING A GRIEVANCE STEMMING FROM A DENIAL OF
 THE POSITION TO AN APPLICANT.
 
    THE SITUATION PREVAILING IN THE INSTANT CASE, IS MY OPINION, QUITE
 DISTINGUISHABLE.  COMPLAINANT HEREIN IS NOT SEEKING, AND DID NOT
 REQUEST, THE NAMES OF THE SUPERVISORS IN EACH UNIT.  THE FACT THAT IT
 MIGHT BE ABLE TO ASCERTAIN THE IDENTITY OF SUCH MANAGERS DOES NOT CALL
 FOR THE APPLICATION OF THE RATIONALE EXPRESSED IN THE CITED CASE.  THE
 SUPREME COURT LENT PROTECTION TO INDIVIDUALS WHO UNDERTOOK EXAMINATIONS
 CONCERNING THEIR APTITUDES.  SUCH EMPLOYEES COULD WELL BE DISTURBED IF
 THE RESULTS, AND INFORMATION SET FORTH IN SUCH TESTS, WERE DISCLOSED TO
 OTHERS.  TO THAT EXTENT, SUCH DISCLOSURES WAS AN INVASION OF PRIVACY.
 NOT SO HERE.  THE SUPERVISORS DISCLOSED NO INFORMATION WHICH SHOULD BE
 INSULATED AGAINST DISCLOSURE.  THEY REVEALED NO CONFIDENTIAL DETAILS IN
 RESPECT TO THEIR PERFORMANCE OR BACKGROUND WHICH MUST BE SHIELDED FROM
 THE UNION.  MOREOVER, EVEN THOUGH RESPONDENT FURNISHES THE
 IDENTIFICATION OF THE LOWER LEVEL RESULTS, THERE IS NO ASSURANCE--
 DESPITE THE UTTERANCES OF THE UNION-- THAT THE BARGAINING AGENT WILL
 SEEK OUT THE NAMES OF THE RESPECTIVE SUPERVISORS AND TAKE STEPS TO
 EMBARRASS THEM.
 
    RESPONDENT ARGUES, HOWEVER, THAT THE UNION MANIFESTED ITS INTENT TO
 MAKE THINGS DIFFICULT FOR THESE MANAGERS WHOSE UNIT SCORE RESULTS
 REFLECT PROBLEMS WITH THEIR EMPLOYEES.  SUCH MANIFESTATION, IT IS
 AVERRED, SHOW A LACK OF GOOD FAITH AND JUSTIFY REFUSAL TO SUPPLY THE
 DATA WHICH WOULD ENABLE COMPLAINANT TO UNDERTAKE SUCH ACTION UPON
 ASCERTAINING THE IDENTITIES.  IN SUPPORT OF THIS ARGUMENT THE EMPLOYER
 RELIES UPON SHELL OIL CO., 457 F.2D 615(1972) WHERE THE REFUSAL TO
 FURNISH NAMES AND ADDRESSES OF UNIT EMPLOYEES WAS JUSTIFIED IN VIEW OF
 POSSIBLE HARASSMENT AGAINST THEM.  NOTE IS TAKEN THAT IN THE CITED CASE
 A STRIKE HAD ENSUED AND VIOLENCE WAS INFLICTED UPON EMPLOYEES.  IT WAS
 APPARENT TO THE COURT THAT A CLEAR AND PRESENT DANGER EXISTED WHICH
 WARRANTED A REFUSAL TO TURNOVER THE INFORMATION REQUESTED.  I AM NOT
 CONVINCED THAT SUCH A DANGER PREVAILED IN THE INSTANT CASE.  APART FROM
 THE FACT THAT I DO NOT CONCLUDE THE PHYSICAL THE PHYSICAL SAFETY OF
 SUPERVISORS WAS IN JEOPARDY, STATEMENTS BY FERNIS AND REMARKS IN
 "SNOOPY" SEEM MORE AKIN TO TACTICS EMPLOYED BY A UNION DURING ITS
 ORGANIZATIONAL CAMPAIGN, OR WHEN IT BECOMES INVOLVED IN LABOR DISPUTE
 WITH MANAGEMENT.  EVEN IF COMPLAINANT THREATENED TO PUBLISH THE "BAD
 SUPERVISOR OF THE MONTH", THE UNION WAS ALWAYS AT LIBERTY TO DO SO
 INDEPENDENTLY OF WHETHER THE INFORMATION SOUGHT HEREIN WAS IN FACT
 SUPPLIED.  ON BALANCE, I DEEM THE STATEMENTS BY THE UNION TO RESEMBLE
 BARGAINING TACTICS WHICH, IN THEMSELVES, OFTEN ARE INFLAMMATORY IN
 NATURE.  IN THIS POSTURE, I REJECT RESPONDENT'S CONTENTIONS THAT IT IS
 ENTITLED TO REFUSE THE INFORMATION ON THE GROUNDS OF PRIVACY OR LIKELY
 HARM TO ITS SUPERVISORS.
 
    (2) 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 OBLIGED 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 IN 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 DEMAND, E.G. REQUIRE MORE STEWARDS IN
 TROUBLESOME AREAS.  FURTHER, THE UNION DEEMS ITSELF AS 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 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 /14/ 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.
 
    IN INTERNAL REVENUE SERVICE, CHICAGO DISTRICT OFFICE, A/SLMR NO.
 1004 THE UNION SOUGHT A STATISTICAL ANALYSIS OF SUPERVISORY EVALUATIONS
 PREPARED IN RESPECT TO PROMOTIONS.  THE INFORMATION WAS REQUESTED IN
 CONNECTION WITH A GRIEVANCE FILED ON BEHALF OF AN EMPLOYEE NOT SELECTED
 FOR PROMOTION.  THE STATISTICAL ANALYSIS DID NOT DEAL WITH THE RANKING
 PANEL'S INTERPRETATION THEREOF AND THE PANEL DID NOT RELY ON THE
 ANALYSIS IN MAKING ITS SELECTIONS.  ACCORDINGLY, THE ASSISTANT SECRETARY
 HELD THE INFORMATION CONTAINED THEREIN WAS NOT NECESSARY TO PROCESS THE
 GRIEVANCE.  ALTHOUGH I RECOGNIZE SUCH FACTUAL SITUATION IS DISSIMILAR TO
 THE CASE AT BAR, IN EACH INSTANCE THE STATISTICS WERE PREDICATED ON
 EVALUATIONS WHICH WERE NOT ESSENTIAL TO INTELLIGENT BARGAINING.  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.  /15/
 
    ACCORDINGLY, AND IN VIEW OF THE FOREGOING, THE COMPLAINT IS HEREBY
 DISMISSED.
 
                              WILLIAM NAIMARK
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  23 APR 1979
 
    WASHINGTON, D.C.
 
    /1/ THE COMPLAINANT FILED UNTIMELY EXCEPTIONS WHICH WERE NOT
 CONSIDERED.
 
    /2/ CONTRARY TO THE FINDINGS OF THE ADMINISTRATIVE LAW JUDGE AT
 FOOTNOTE 2 OF HIS RECOMMENDED DECISION AND ORDER, THE RECORD REVEALS
 THAT THE COMPLAINANT ASKED FOR THE NAMES OF MANAGERS OR SUPERVISORS
 BELOW THE ASSISTANT COMMISSIONERS' LEVEL.  THIS INADVERTENT ERROR,
 HOWEVER, HAS HAD NO EFFECT UPON THE OUTCOME IN THIS CASE.
 
    /3/ IN VIEW OF THE DISPOSITION OF THIS CASE, THE AUTHORITY FINDS IT
 UNNECESSARY TO PASS UPON THE CONCLUSIONS OF THE ADMINISTRATIVE LAW JUDGE
 WITH RESPECT TO THE RESPONDENT'S CONCERN FOR THE PRIVACY OF ITS
 SUPERVISORS AND THE BAD FAITH ALLEGEDLY DISPLAYED BY THE COMPLAINANT
 DURING THE BARGAINING SESSIONS INVOLVED HEREIN.
 
    /4/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
 OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE 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.
 
    /5/ MEMBER LEON B. APPLEWHAITE DID NOT PARTICIPATE IN THE PRESENT
 CASE, WHICH HAD BEEN PROCESSED PRIOR TO HIS CONFIRMATION BY THE UNITED
 STATES SENATE AS A MEMBER OF THE AUTHORITY.
 
    /6/ CERTAIN PROCEDURAL DEFENSES, WHICH WERE RAISED BY RESPONDENT AS
 ITS RESPONSE, WERE REVIEWED BEFORE THE UNDERSIGNED AND WILL BE TREATED
 HEREIN.
 
    /7/ WHILE I FIND THAT COMPLAINANT DID NOT ASK FOR THE NAMES OF THE
 MANAGERS OR SUPERVISORS BELOW THE ASSISTANT COMMISSIONER'S LEVEL, THE
 RECORD REFLECTS THAT IF THE RESULTS FOR EACH UNIT OR LEVEL WERE
 FURNISHED, THE UNION COULD ASCERTAIN THE IDENTITY OF ALL UNIT
 SUPERVISORS.
 
    /8/ THE QUESTIONS IN MAS, WHICH RELATES TO THE 19 FACTORS, PROVIDE
 SEVERAL ANSWERS CHARACTERIZING EACH PARTICULAR WORK ENVIRONMENT, AND THE
 EMPLOYEE MUST SELECT THAT RESPONSE WHICH HE DEEMS APPLICABLE THERETO.
 
    /9/ ONLY TWO SUPERVISORS DID IN FACT HOLD CONFERENCES WITH THEIR
 EMPLOYEES.  THE RECORD REFLECTS THAT OTHERS WERE RELUCTANT TO CONDUCT
 MEETINGS WITH THEIR EMPLOYEES IN VIEW OF THE THREATS MADE BY
 COMPLAINANT.
 
    /10/ HE ALSO REQUESTED DATA RE AN EEO SURVEY WHICH WAS LATER SUPPLIED
 TO THE UNION.
 
    /11/ SOME DATA CONCERNING THE PREVIOUS SURVEY WAS TRANSMITTED
 THEREWITH TO THE UNION.
 
    /12/ WITHOUT THIS SANITIZATION, COMPLAINANT WOULD HAVE BEEN ABLE TO
 OBTAIN THE IDENTITY OF ABOUT 135-140 SUPERVISORS AT THE LOWER LEVEL.
 
    /13/ AT THE HEARING RESPONDENT'S MOTION TO DISMISS BASED ON THESE
 GROUNDS WAS DENIED BY THE UNDERSIGNED WITH LEAVE TO RENEW IT THEREAFTER.
  RESPONDENT HAS RENEWED THE SAME MOTION IN ITS POST-HEARING BRIEF.
 
    /14/ RESPONDENT ARGUES THAT UNDER 7114(B)(4)(C) OF THE NEW STATUTE
 THE DUTY TO BARGAIN EXCLUDES FURNISHING DATA WHICH CONSTITUTE GUIDANCE,
 ADVICE, COUNSEL OR TRAINING FOR MANAGEMENT OFFICIALS OR SUPERVISORS.
 RESPONDENT MAY WELL BE RELIEVED OF TURNING OVER THE SURVEY RESULTS OF
 MAS UNDER THE NEW ACT.  HOWEVER, ITS OBLIGATION TO FURNISH THE
 INFORMATION IN JUNE, 1978 MUST BE GOVERNED UNDER THE ORDER AND THE
 APPROPRIATE CASE LAW EXISTENT PRIOR TO THE EFFECTIVE DATE OF THE SAID
 STATUTE.
 
    /15/ THIS D