19:0555(76)CA - FDA and FDA Region VII, Kansas City, MO and NTEU -- 1985 FLRAdec CA



[ 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
 y