29:0107(11)CA - Rolla Research Center, Bureau of Mines, Rolla, MO and NFFE Local 934 -- 1987 FLRAdec CA



[ v29 p107 ]
29:0107(11)CA
The decision of the Authority follows:


29 FLRA No. 11

ROLLA RESEARCH CENTER,
U.S. BUREAU OF MINES,
ROLLA, MISSOURI

                    Respondent

      and

NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 934

                     Charging Party

Case No. 7-CA-60066
         7-CA-60128

DECISION AND ORDER

I. Statement of the Case

This consolidated unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached Administrative Law Judge's (ALJ) Decision. The General Counsel filed an opposition to the exceptions. The consolidated complaint alleged that the Respondent violated section 7116(a)(1), (5) and (8) of the Federal Service Labor - Management Relations Statute (the Statute) by failing and refusing to provide the Union, upon request, with unit employee performance appraisal information requested under section 7114(b)(4) of the Statute for the purpose of investigating and processing a grievance under the negotiated grievance procedure. The complaint further alleged that the Respondent violated the Statute by failing and refusing to process a grievance to the fourth step of the negotiated procedure, and thereby denied the Union access to the arbitration procedures contained in the collective bargaining agreement, in violation of section 7121 of the Statute and in repudiation of the collective bargaining agreement.

For the reasons discussed below, we find that the Respondent violated the Statute by its failure to furnish data to the Union which were necessary for it to perform its representational duties, and that it also violated the Statute by its denial of the Union access to arbitration provided in the collective bargaining agreement. [PAGE]

II. Background

The events which led to the complaints in this consolidated case began when the Union filed a grievance, which the Judge found consisted of four separate grievance items. 1 The grievances were filed shortly after the 1985 performance appraisals were distributed, and related to the Union's concern over the ratings.

The Union's concern in regard to the first item was that not all supervisors were rating employees at the same level for the same work. Item 2 was based on a belief that the Activity had established a goal for a Center-wide average for appraisal scores which could result in two equal workers having different ratings. Item 3 concerned a Union suspicion that the Activity had a policy that the appraisal score for the "safety" critical element could not exceed the "meets" rating. Finally, item 4 reflected a Union concern that employees' ratings were based on favoritism. In summary, the Union contended that:

(1) It appears that certain Research Supervisors regularly rate their subordinates lower than do other Research Supervisors when the demonstrated level of performance is equivalent. In other words, employees in different research groups are measured by different performance standards; a change in Research Supervisor can mean a change in performance rating, even though an employee's actual level of performance remains the same.

(2) It appears that Center management (or Washington management?) has established an average performance level goal for the entire Center. All individual performance ratings, when expressed numerically and averaged, are expected to approximate a re-determined numerical target goal for the Center as a whole. This means that if [ v29 p2 ] certain employees are to be rated higher than the average target goal for the entire Center, other employees must be rated down in order to achieve the desired overall performance target. Local 934 believes that employees should be rated according to their actual performance, and not according to some arbitrary goal which is often unrelated to job performance.

(3) It appears that Center management is unwilling to rate employees higher than "meets" on the required element of safety. This means that most employees can never achieve overall ratings of Outstanding, regardless of how they might perform. Similarly, ratings of Excellent are more difficult to obtain.

(4) It appears that Center management is wrongfully rewarding certain employees with undeservedly high performance ratings (because of close personal relationships between rater and ratee). Conversely, other employees are rated lower than their performance merits because of personal animosity and dislike. Such favoritism is becoming increasingly obvious and is demoralizing to the entire work force.

ALJ Decision at 7-8.

In addition, the Union requested the following information for the previous 5 years:

(A) Name, grade, job title, overall numerical performance appraisal rating, name of rating official, name of Research Supervisor, date of rating; and

(B) what "grade" (Fails, Meets, Exceeds) and point value each employee received on the required element of safety for each of the past 5 rating years.

ALJ Decision at 8.

Initially the Activity denied the grievances and the data request based on its belief that the system was not [ v29 p3 ] being administered inequitably and that release of the data would conflict with the Privacy Act. The union offered to modify the data request to meet the Activity's concerns but the Activity maintained that providing the information would invade employees' privacy because of the small size of the work force. The Union then revised the request, offering to delete names of employees but including codes so that an arbitrator could collate the material as necessary. The Union also dropped its request for grades and job titles and the names of raters. In addition, it shortened the period covered by the request from 5 to 3 years. The Judge detailed (at pp. 12-13 of his decision) the Union's explanations of the uses it intended to make of the information.

The Activity asked the Union to establish that it was authorized by a substantial number of unit members to release the data and clarify other terms of its request. The Union declined to supply further information about unit members, but referred to previous descriptions of the data sought, and offered further clarification. Management again declined to supply the data citing privacy concerns. The Union once again asked the Activity how it could make the data request "more palatable" by better sanitizing it. The Activity made no suggestion, and the grievance moved to the second step.

After an unfair labor practice charge was filed with the Authority over the information request, the Union asked that the grievances be held in abeyance until the Authority ruled on the request. The Activity declined to delay processing the grievance to the third step. It was after this point that the Activity first questioned the grievability of part 1 of the grievance. Finally, the Activity declared that unspecified parts of the four items in the grievances were not subject to the negotiated procedure.

According to the Union, the negotiated procedure provided that grievability issues would be decided by an arbitrator. A grievance could not go to an arbitrator for a grievability determination or for a decision on the merits until the Activity would agree to forward the grievance to the Joint Grievance Committee, to select the arbitrator. The Activity declined to convene the Committee until grievability was decided. Under the Union's view, it thus is precluded from proceeding to arbitration.

III. Administrative Law Judge's Decision

The Judge found that the data sought by the Union was reasonably available and necessary for the Union to fulfill [ v29 p4 ] its responsibilities in processing the grievances. He found further that release of the data was not precluded by the Privacy Act. He concluded that the Respondent's failure to furnish the data was contrary to the requirements of section 7114(b)(4) of the Statute and constituted a violation of section 7116(a)(1) and (8). The Judge failed to make a specific finding on the allegation that the failure to furnish data also violated section 7116(a)(5) of the Statute.

The Judge also found that the Respondent violated section 7116(a)(1) and (8) of the Statute because by not convening a Joint Grievance Committee, it precluded the Union's recourse to arbitration on at least three grievances on which no grievability question existed, 2 thereby failing to comply with section 7121 Of the statute in violation of section 7116(a)(1) and (8). The Judge noted that a refusal to submit questions of grievability or arbitrability to an arbitrator violates section 7116(a)(1) and (8). Further, he determined that the negotiated procedure on its face, provides for only one method of selecting an arbitrator, and that the Respondent by refusing to follow that procedure prevented the Union from proceeding to arbitration in violation of section 7116(a)(1) and (8) at least in the case of the three parts of the grievance over which no grievability dispute existed.

The Judge further found that the failure to call a meeting of the Committee constituted a repudiation of the collective bargaining agreement, in violation of section 7116(a)(1), (5) and (8) of the Statute.

IV. Positions of the Parties

The Respondent excepted to the Judge's findings that (1) the data was necessary to process the grievances and that [ v29 p5 ] the failure to release such data violated section 7116(a)(1), (5) and (8); (2) disclosure of the information was not prohibited by the Privacy Act; and (3) the failure to forward the grievances to the Joint Grievance Committee violated section. 7116(a)(1), (5) and (8) by precluding the Union from exercising its right to arbitrate the grievances.

The General Counsel filed an opposition to the Respondent's exceptions, which supported the Administrative Law Judge's decision and urged that it be adopted in its entirety. The General Counsel did not except to the Judge's failure to find a violation for failure to process the first grievance.

V. Analysis

A. Data Were Necessary For The Union To Meet Its Statutory Obligations

Under section 7114(b)(4)(B), an agency's obligation to negotiate in good faith includes the obligation to furnish to the exclusive representative data which is "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining," including dealing with matters in connection with a negotiated grievance procedure. See, for example, AAFES, Fort Carson and American Federation of Government Employees, Local 1345, 17 FLRA 624 (1985), rev'd and remanded in part as to other matters sub nom. American Federation of Government Employees, AFL - CIO, Local 1345 v. FLRA, 793 F.2d 1360 (D.C. Cir. 1986), Decision and Order on Remand, Army Air Force Exchange Service (AAFES), Fort Carson, Colorado, 25 FLRA No. 89 (1987).

In its exceptions the Respondent argued that some requests were vague and ill defined and might include data going beyond that needed for consideration of a particular grievance. However, it is clear from the Respondent's statement that the Respondent knew the purpose of the request and easily could have tailored any release of data so as to exclude information not relating to the grievances. Other items were asserted to be unnecessary because they cover periods subsequent to the time when the Respondent's alleged wrongful policy was in place. As noted by the Judge, the information was necessary to examine a policy which the Union had reason to believe was in place at a certain time and in order also to determine whether it [ v29 p6 ] continued as a long-term problem. Moreover, as found by the Judge, the Union shortened the period of time covered by the request in order to try to satisfy some of the concerns of the Respondent. 3

In agreement with the Judge, we conclude that the General Counsel established that the data sought was necessary for the Union to fulfill its representational duties.

B. Disclosure Is Not Precluded By The Privacy Act

As found by the Judge, we agree that release of the sanitized data sought would not constitute a clearly unwarranted invasion of privacy. As the Judge noted, even assuming a valid privacy concern, on balance release of the data would be warranted in this case.

C. Failure To Convene The Joint Grievance Committee Violated Section 7116(a)(1)(5) and (8)

In agreement with the Judge, for the reasons he stated, and contrary to the Respondent, we find that the four parts of the grievance were properly to be treated as four separate grievances. Each stood independently and none was so closely tied to any others to require that they be treated as one grievance. As found by the Judge at p. 33 of his Decision:

Respondent's argument ignores the fact that four separate issues were involved in the Union's four-part grievance and that the Research Director in attempting to resolve the matter answered only one of the four issues, leaving the other three suspended without any attempt at resolution. Since Respondent raised a grievability issue only about Item 1 of the grievance, even under its interpretation that the grievability issue should be resolved first, an [ v29 p7 ] obligation remained to adjust the remaining three grievances, which involving (sic) distinctly separate factual situations. Moreover, even under Respondent's interpretation it is clear that the grievability of any of the matters should not have been made by the Research Director.

In the absence of exceptions to the Judge's failure to find a violation in regard to the first grievance, our discussion is confined to the three grievances about which no grievability questions were raised.

The negotiated grievance procedure provides that the Research Director of the Activity will attempt to resolve any written grievance, or "refer the case to the Joint Grievance Committee within five work days for their consideration." The grievance procedure, Article VI, sections (5) and (6), then provides the following:

(5) The Joint Grievance Committee shall meet within five working days after a written grievance has been forwarded by the Research Director. . . . Within ten calendar days after receiving the report from the Joint Grievance Committee, the Research Director shall inform the employee and the NFFE of his decision.

(6) If the employee then wishes to take the grievance to arbitration, upon presentation signed by both the employee and the appropriate NFFE representative, the Research Director and the NFFE shall appoint an arbitrator recommended by the Committee.

The Judge found that based on the plain meaning of the negotiated procedure, the only method for selection of an arbitrator is through the Committee. Thus, absent a waiver of the procedure by the Union, the grievance could not be processed to arbitration unless it is sent to the Committee. The Respondent argues that it never refused to go to arbitration; in fact, it argues, the Union never even requested arbitration. However the Respondent also argues that it disagrees with the interpretation that the grievance procedure requires the Committee to be involved in selecting an arbitrator. [ v29 p8 ]

In our view, the terms of the agreement clearly require submission to the Committee as a prerequisite to proceeding to arbitration. Article VI section 6 discusses the appointment of an arbitrator "recommended by the Committee." There is no indication that the Committee may be convened in any way other than by the Research Director referring a case to it. Thus, this case is distinguishable from U.S. Customs Service, Region VII, Los Angeles, California and National Treasury Employees Union, 10 FLRA 251 (1982), relied on by the Respondent, because (1) that case involved a single instance of a refusal to honor a request for a grievance meeting rather than, as here, a repudiation of the entire procedure; and (2) there was no indication in that case that it was necessary for the agency to directly participate in the invocation of arbitration. As such, we conclude that by declining to convene the Committee, the Respondent precluded the Union from proceeding to arbitration in violation of section 7116(a)(1) and (8).

Further, we do not view Respondent's position to be an arguable interpretation of the contract. That is, on its face the agreement is clear, unambiguous and gives no indication of a basis for a different interpretation. We conclude, therefore, in agreement with the Judge, that the Respondent's act was a repudiation of the grievance procedure in violation of section 7116(a)(1) and (5) of the Statute. 4

VI. Conclusion and Summary

In agreement with the Judge, we find that the Respondent violated section 7116(a)(1) and (8) of the Statute by failing to furnish information to the Union which was necessary for it to carry out its representational duties.

Also in agreement with the Judge, we find that the Respondent violated section 7116(a)(1) and (8) of the Statute by not convening the Joint Committee, thereby precluding the Union from proceeding to arbitration; and violated section 7116(a)(1), (5) and (8) by repudiating the negotiated agreement by those acts. [ v29 p9 ]

ORDER

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Rolla Research Center, U.S. Bureau of Mines, Rolla, Missouri shall:

1. Cease and desist from:

(a) Refusing to provide to the National Federation of Federal Employees, Local 934, the employees' exclusive representative, all requested data reasonably available and necessary for it to properly perform its representational function in connection with the grievances filed by it on November 27, 1985.

(b) Refusing to refer all appropriate outstanding grievances filed on November 27, 1985 by the National Federation of Federal Employees, Local 934, the employees' exclusive representative, to the contractual Joint Grievance Committee when such grievances are not mutually resolved.

(c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.

2. Take the following affirmative action:

(a) Upon request, provide to the National Federation of Federal Employees, Local 934, the employees' exclusive representative, all requested data reasonably available and necessary for it to properly perform its representational function in connection with the grievances filed on November 27, 1985.

(b) Upon request, refer all appropriate outstanding grievances filed by the National Federation of Federal Employees, Local 934, the employees' exclusive representative, to the contractual Joint Grievance Committee when such grievances are not mutually resolved.

(c) Post at its Rolla Research Center, U.S. Bureau of mines facilities 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 Research Director, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees [ v29 p10 ] are customarily posted. Reasonable steps shall be taken to ensure that such notices are not altered, defaced, or covered by any other material.

(d) 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.

Issued, Washington, D.C., September 28, 1987.

Jerry L.Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v29 p11 ]

                   NOTICE TO ALL EMPLOYEES
    AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
           AND TO EFFECTUATE THE POLICIES OF THE
    FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
               WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT refuse to provide to the National Federation of Federal Employees, Local 934, the employees' exclusive representative, all requested data reasonably available and necessary for it to properly perform its representational function in connection with the grievances filed by it on November 27, 1985.

WE WILL NOT refuse to refer all appropriate outstanding grievances filed on November 27, 1985 by the National Federation of Federal Employees, Local 934, the employees' exclusive representative, to the contractual Joint Grievance Committee when such grievances are not mutually resolved.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce any employee in the exercise of their rights guaranteed by the Federal Service Labor - Management Relations Statute.

WE WILL, upon request, provide to the National Federation of Federal Employees, Local 934, the employees' exclusive representative, all requested data reasonably available and necessary for it to properly perform its representational function in connection with the grievance filed on November 27, 1985.

WE WILL, upon request, refer all appropriate outstanding grievances filed on November 27, 1985 by the National Federation of Federal Employees, Local 934, the employees' exclusive representative, to the contractual Joint Grievance Committee when such grievances are not mutually resolved.

                              _____________________________
                                    (Activity)

Dated:_____________________By:_____________________________
                               (Signature)   (Title)

[PAGE]

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 its provisions, they may communicate directly with the Regional Director, Region VII, Federal Labor Relations Authority, whose address is: 535 16th Street, Suite 310, Denver, CO 80202, and whose telephone number is: (303) 837-5224. [ v29 p2 ]

ROLLA RESEARCH CENTER,
U.S. BUREAU OF MINES,
ROLLA, MISSOURI

              Respondent

     and

NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 934

              Charging Party

Case Nos.: 7-CA-60066
           7-CA-60128

Beatrice Chester, Esq.
         For the Respondent

Nicholas J. LoBurgio, Esq.
         For the General Counsel

Before: ELI NASH, JR.
        Administrative Law Judge

DECISION

Statement of the Case

This is a proceeding under the Federal Service Labor - Management Relations Statute, 92 Stat. 1191, 5 U.S.C. section 7101 et seq. (herein called the Statute). It was instituted by the Regional Director of Region 7 based upon unfair labor practice charges filed on December 16, 1985 and January 21, 1986, respectively and both amended on February 27, 1986, by the National Federation of Federal Employees, Local 934 (herein called the Union) against Rolla Research Center, U.S. Bureau of Mines, Rolla, Missouri (herein called Respondent). The Consolidated Complaint alleged that Respondent violated section 7116(a)(1), (5) and (8) of the Statute by failing and refusing to provide the Union, upon request, with unit employee performance appraisal information requested under the Statute for the purpose of investigating and processing a grievance under the negotiated grievance procedure; and, by failing and refusing to process a [PAGE] grievance to the fourth step of the negotiated grievance procedure thereby denying the Union access to the arbitration procedures contained in the collective bargaining agreement.

Respondent's Answer denied the commission of any unfair labor practice.

A hearing was held before the undersigned in Rolla, Missouri at which the parties were represented by counsel and afforded full opportunity to adduce evidence and to call, examine, and cross-examine witnesses and to argue orally. Timely briefs were filed by the parties and have been duly considered. 5

Upon consideration of the entire record in this case, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations.

Findings of Fact

1. Respondent, located in Rolla, Missouri, is one of ten Mineral Research Centers of the U.S. Bureau of Mines. The research programs herein are conducted by three main organizational groups, the Alternate Processing, Resource Processing and Chemical Metallurgy groups, each headed by a separate Research Supervisor who is under the Research Director. Under each of the three Research Supervisors, there are one or two lower level supervisors known as Group Supervisors who are the immediate supervisors of several employees in the research group. There is also an Analytical Support group, headed by a Supervisory Chemist, which does not conduct research, but provides support for the three research groups. Other support functions, include: Shop - Maintenance; Purchasing & Property; and, Office Services. Each is headed by a first-line supervisor under the overall supervision of the Administrative Officer.

2. The Union is the exclusive representative for Respondent's three distinct bargaining units, professional, [ v29 p2 ] non-professional and wage-grade. Each unit has a separate, but almost identical collective bargaining agreement. There are about 45-50 total employees in the three bargaining units. Each of the collective bargaining agreements was signed on September 21, 1970 and contain identical grievance procedure provisions. Apparently none of the negotiators for these collective bargaining agreements are presently employed by Respondent.

3. The professional unit consists of engineers and scientists with different specialty fields (e.g. metallurgists, chemists) with an average grade level of GS-11-12. The non-professional unit consists of technical positions, not requiring an academic background, with an average grade level of GS-7-8.

4. For approximately 5 and 1/2 years prior to the instant hearing, L. A. Neumeier, Research Supervisor, Alternate Processing Group, was Respondent's representative designated to deal with the Union. Neumeier has been employed by Respondent for about 26 years and has been a Research Supervisor for approximately 12 years. From 1981 until 1985, Neumeier's involvement with the Union was limited. During that period, the Union did not file any grievances, unfair labor practice charges, or requests for information, and there were no negotiations between the parties. During 1981 - 1985, Neumeier spent about two or three hours per week on labor management relations, mostly requesting Union comments on Manual issuances and answering any questions raised by the Union. The Union was represented, at all times material herein, by Chief Steward Fletcher Jolly, III and President Dale Swinfard.

5. The negotiated grievance procedures found in Article VI of the agreements provide as follows:

Section 5. The Research Director and the NFFE shall each appoint two members and two alternates as a Joint Grievance Committee which shall hear disputes submitted to it in accordance with grievance procedures. The committee members shall select a chairman and a secretary to serve for one year. The committee shall formulate rules of conduct of its procedures and submit a written record of its actions to the Research Director and the NFFE. [ v29 p3 ]

Section 6, provides as follows:

(4) When the Research Director receives a written grievance from an employee or group of employees covered by this Agreement, he or another appropriate official will inform the NFFE that a grievance has been received, and with a representative member of the NFFE will examine the grievance. If it is found to be a matter falling within the exclusions from grievance procedures listed in 370 DM 771 of the Departmental Manual, the Research Director will so advise the employee and his representative of any special procedures which may apply. Otherwise he will attempt to resolve the grievance, or he will refer the case to the Joint Grievance Committee within five working days for their consideration. Findings will be recorded in a joint memorandum signed by the Research Director and the NFFE.

(5) The Joint Grievance Committee shall meet within five working days after a written grievance has been forwarded by the Research Director. . . Within ten calendar days after receiving the report from the Joint Grievance Committee, the Research Director shall inform the employee and the NFFE of his decision.

(6) If the employee then wishes to take the grievance to arbitration, upon presentation signed by both the employee and the appropriate NFFE representative, the Research Director and the NFFE shall appoint an arbitrator recommended by the Committee.

6. Although no grievances reached Step 4 of the negotiated grievance procedure i.e., referral to the Joint Grievance Committee, (herein called the Committee), prior to 1985, the Union filed two grievances which did reach that stage in 1985. The first grievance, filed in early 1985 [ v29 p4 ] concerned employee sign-in/sign-out sheets, however, when the grievance reached the fourth step Respondent refused to establish the Committee and forward the grievance to the Committee, resulting in an unfair labor practice charge being filed in Case No. 7-CA-50305. Another grievance was filed later in 1985 alleging a failure by Respondent to remove ice and snow from the sidewalks and steps at the Center which Respondent also refused to process to the Committee, resulting in an unfair labor practice charge in Case No. 7-CA-50324. Thereafter, on or about May 17, 1985, the Regional Director of Region 7 of the Authority issued a Consolidated Complaint and Notice of Hearing, in Case Nos. 7-CA-50305 and 7-CA-50324 alleging that Respondent repudiated Article VI of the Collective Bargaining Agreement. The underlying issues in the subject grievances were settled as part of a comprehensive Memorandum of Understanding, dated July 7, 1985. 6 [ v29 p5 ]

7. Unit employees at the center received their individual performance appraisals in early November 1985 on an EBM Form 1193, Record of Performance Appraisal and Rating (herein called EBM 1193). These appraisals are prepared by the rating official, a first line group supervisor, and reviewed by the second line supervisor, the Research Super-visor. The Research Supervisor has the authority to revise the scores of the rating official. Further, a rating official who was not named told Steward Jolly that Research Supervisor Neumeier, told him in advance how to rate an employee. Neumeier, however denied having ever changed a completed employee appraisal, once it reached his desk, On the other hand, Neumeier admits that, on occasion, he did have discussions and did provide advice to rating officials for their preparation of appraisals, although he denied that he discussed what appraisals the group supervisor would give.

8. After the appraisals are distributed or shown to the unit employees and reviewed by a second-level supervisor, they are filed by year and in alphabetical order in the Center's Personnel office. The appraisals are filed in a "restricted" filing cabinet. However, President Swinfard testified that he was given access to his appraisal from this "restricted" file. According to Neumeier, supervisors have access to these "restricted" files and he had access to the files to prepare for the instant hearing, and "management" also had access to these "restricted" files in order to defend against such matters as grievances filed by the [ v29 p6 ] Union. Concerning the performance standards upon which the employee appraisals are based, Neumeier testified that they were individualized, not generic. Jolly, however, testified that they were supposed to be individualized, but were not. Respondent identified one such "individualized" performance plan as that of a Mr. Volosin. That plan states as follows:

Consults with Group Supervisor and/or Principal Investigator on assignments, and assist in the planning, development, and implementation of appropriate experimental procedures on authorized projects.

9. On November 27, 1985, shortly after the 1985 performance appraisals were distributed, the Union submitted a first step oral grievance which, in essence, consisted of four separate grievance items to Group Supervisor, Dr. John McIlwain. In these grievances, the Union contended that:

(1) It appears that certain Research Supervisors regularly rate their subordinates lower than do other Research Supervisors when the demonstrated level of performance is equivalent. In other words, employees in different research groups are measured by different performance standards; a change in Research Supervisor can mean a change in performance rating, even though an employee's actual level of performance remains the same.

(2) It appears that Center management (or Washington management ?) has established an average performance level goal for the entire Center. All individual performance ratings, when expressed numerically and averaged, are expected to approximate a pre-determined numerical target goal for the center as a whole. This means that if certain employees are to be rated higher than the average target goal for the entire Center, other employees must be rated down in order to achieve the desired overall performance target. Local 934 believes that employees should [ v29 p7 ] be rated according to their actual performance, and not according to some arbitrary goal which is often unrelated to job performance.

(3) It appears that Center management is unwilling to rate employees higher than "meets" on the required element of safety. This means that most employees can never achieve overall ratings of Outstanding, regardless of how they might perform. Similarly, ratings of Excellent are more difficult to obtain.

(4) It appears that Center management is wrongfully rewarding certain employees with undeservedly high performance ratings (because of close personal relationships between rater and ratee). Conversely, other employees are rated lower than their performance merits because of personal animosity and dislike. Such favoritism is becoming increasingly obvious and is demoralizing to the entire workforce.

In addition, the Union requested the following information over a 5 year period:

(A) Name, grade, job title, overall numerical performance appraisal rating, name of rating official, name of Research Supervisor, date of rating; and

(B) what "grade" (Fails, Meets, Exceeds) and point value each employee received on the required element of safety for each of the past 5 rating years.

There is no question that all of the information requested at this time was contained on the EBM Form 1193.

10. According to Steward Jolly, Item 1 above concerned the Union's belief that the three Research Supervisors and their peers, such as the Administrative Officer and [ v29 p8 ] Analytical Support Supervisor, were not rating all of their employees at the same level for the same work. Jolly testified that the Union had identified one Research Supervisor in particular, Neumeier, as one whose appraisals were lower than others for the same level of work. The Union was not grieving the unit employe's performance standards or critical elements, according to Jolly. Item 2, Jolly testified, was based on a Union belief that, beginning in approximately 1983, Respondent had established a goal of having a center-wide average of 2.2 for appraisal scores. According to him, the Union based this belief on statements from three supervisors, who in September 1983, after they had attended a management meeting, said that all supervisors were directed to attain this rating goal. Jolly's testimony reveals that the Union was concerned about the use of such an averaging technique because it meant that if one employee was rated high, some other employee, who might be an equal worker, would be rated lower so that the above average could be reached. This would be particularly true if, as the Union believed, supervisors, who were to have a 2.4 average, were totalled in with unit employees, Jolly asserted. Although this system of averaging began, according to the Union's information, in 1983, it occurred yearly, and became meaningful in 1985 only because the reduction-in-force regulations implemented by the Office of Personnel Management (OPM) in 1985 weighed performance appraisals more heavily than in the past. According to Jolly, he verified with Supervisor Vern Miller, only two days prior to the hearing, that the supervisory meeting setting out the average occurred somewhere around December 9, 1983, that the unit employee average score was to be 2.2, and that the supervisor rating would both be higher and totalled into the center-wide average. Further, Jolly stated that during the 1985 appraisal process the Union knew of at least one supervisor, who had become a supervisor only two weeks before the rating period, who gave unit employees an overall rating of 2.2, thereby substantiating the continued existence of the averaging policy. Since Respondent produced no evidence at the hearing to deny that an averaging policy existed of that it had ended, the testimony of Jolly stands uncontradicted.

11. Item 3 concerned a Union suspicion that Respondent had a policy that the appraisal score for the "Safety" critical element, which is included on the appraisal of every unit employee, could not exceed the "meets" rating. The Union believed that such a mandatory rating on the safety element lowers the overall performance appraisal rating for all employees. [ v29 p9 ]

12. Item 4 related to a Union conception or observation at the Center, that some employees received higher ratings than they deserved because of favoritism and conversely others receive lowered appraisals for that same reason. At this first step meeting when Jolly presented the grievance, McIlwain never questioned that such a grievance was, in fact, an appropriate grievance.

13. On or around December 3, 1985, group supervisor McIlwain after discussing the matter with Neumeier made an oral response to the November 27, 1985 grievance/data request. McIlwain informed Jolly that the grievance had no merit, Respondent was going to take no action on it, and that Respondent was not going to comply with the Union's data request since it was concerned with the privacy considerations of unit employees. Jolly asked why Respondent was refusing and McIlwain said he had not made the decision but managers above him had. McIlwain, who also testified, said the decision to deny the grievance and the data request was made by Neumeier after a short conversation with him. Neumeier confirmed that he told McIlwain to deny the grievance and the data request. The basis of denial was that the system was not being administered inequitably rather than the grievability of any issue.

14. The next morning, December 4, 1985, Jolly asked Neumeier what was wrong with the information request, what could the Union do to sanitize it to meet Respondent's objections, and stated the request could be modified to meet Respondent's Privacy Act considerations. Jolly informed Neumeier that the Union would be willing to modify the data request. Neumeier, however, expressed a concern, then and later that same day, that providing the information would invade the privacy of unit employees because of the small size of the work force. Jolly testified that Neumeier had no comment or input on how the Union could revise its data request, even though Jolly explained modifications that he was planning to make to the initial data request of November 27, 1985. Neumeier denied this, saying he orally offered alternatives to the Union but did not specify when, how or what those alternatives were. Finally, Jolly testified that after further discussion he believed Neumeier did understand the data request.

15. Later, on December 4, 1985 the Union revised the November 27, 1985 letter to Neumeier and presented it as the second step grievance. Although the grievance remained the same, the Union unilaterally changed the request in the following manner: [ v29 p10 ] . . . the Local is willing to limit our data request to include only the past three (3) rating years (which roughly corresponds to FYs 83, 84 and 85). This is the absolute minimum period required to demonstrate the existence of long-term patterns of improper rating. It should be understood that the Local reserves the option to ask for additional data under the provisions of 5 U.S. Code 7114(b)(4), should the information supplied by management indicate there is substance to certain of the Local's complaints.

Thus the Local is willing to accept the following performance appraisal information on each present (and former) RORC employee during each of the past three rating years, providing this information is supplied by organizational entity and providing that it is coded to individuals in such a way that an Arbitrator could identify the ratings of specific individuals (should such a need arise):

(a) job title and/or grade, overall numerical performance appraisal rating, and corresponding date of rating, as well as

(b) what element rating (i.e. "Fails, Meets, Exceeds," etc.) and point value each employee received on the job element of safety. This safety "grade" should also be supplied in such a form that it can be related to the information in (a) above.

Apparently, the Union offered to accept the data with the names of employees deleted, although it continued to want the data by organizational entity and indexed/coded so that an arbitrator could collate it if necessary. With respect to items (a) and (b) of the data requested in the original request, the Union dropped its request for both grade and job title, giving Respondent the option of providing either one, dropped the request for the name of the rating official and for the name of the Research Supervisor. Further, the [ v29 p11 ] Union shortened the request from five years to three years, giving Respondent the alternative to provide it in a tabular format. Both Neumeier and Jolly testified that Respondent knew what the Union was requesting.

16. Comparing the revised data requesting subparts (a) and (b) and the grievance, enumerated as Items 1-4, Jolly states that, the Union needed the following information for the grievance areas involved. Concerning Item 1, the Union desired the information, in essence, to compare the ratings given to unit employees and all of the information requested from category (a) of the revised data request was needed for this purpose, Jolly stated. With the data organizationally divided, the date of ratings, the job title and/or grade of the indexed employees, the Union felt it could compare ratings over a three year period to determine whether its theory of the grievance was correct or not, Jolly testified. According to Neumeier, when this was explained to him, Jolly specifically told him that the Union was not grieving the content of the unit employee's performance standards or critical elements. He also testified that the grievance itself did not state that it covered performance standards or critical elements. Neumeier did concur that, if performance standards and critical elements were not the subject of the grievance, then Respondent's interpretation would be that Item 1 was grievable. Furthermore, Neumeier admitted that the Union could not prove its case on Item 1 without substantiating evidence and at least one way that this evidence could be obtained was through a data request. In addition, Neumeier's testimony established that Jolly gave him examples of employees, including himself, whom he thought should have been rated higher, but were not because of Neumeier's low rating habit. During testimony that a number of unit employees approached him and other Union officers concerning performance related issues, Jolly explained, that while some of those employees were prepared to file individual grievances, it was decided that the Union would present a grievance on behalf of the entire bargaining unit. Notwithstanding his concerns Neumeier testified, that this sampling was not enough basis for Respondent to turn over the requested data, nor was he certain that substantiated complaints from 15-20 of the approximate 40 unit employees would be enough, in Respondent's view, for it to base a decision whether to provide the requested data.

17. Jolly testified concerning Item 2 that the information the Union needed from the request area (a) was only the overall numerical performance rating and its date. The [ v29 p12 ] Union disclaimed any interest in the other data from (a) or (b) of the request or that it be divided organizationally. As already noted, Jolly testified that this sanitized data, over a three year period, was needed to establish the existence of a policy that an average score for Respondent's facility was being used. Neumeier stated that Respondent was concerned initially that the Union's data request covered supervisors and although he admitted the Union was not ultimately pursuing supervisory data he did not question the grievability of this matter. Giving the Union average scores would suffice for this request, Neumeier stated. Despite having this opinion, Neumeier testified that this alternative was not conveyed to the Union either orally or in any correspondence between the parties. Nor was the Union ever given any alternative data.

18. The data the Union wanted for Item 3 was the rating of all unit employees received in the job element of safety indexed by organization so that an arbitrator could possibly use the data. Respondent did not challenge the grievability of this issue. Although admitting that if he were the Union, after receiving employee complaints on the issue of safety, he would ask for similar information from Respondent, Neumeier refused to release the information.

19. Jolly testified that the information from area (a) of the December 4, 1985 request was to be used in connection with Item 4 to identify employees whose ratings were clearly out of line with known performance. Based upon this perception, even though the "why" for such appraisals might not be provable from data, the Union could present the data to Respondent or an arbitrator and try to have them bring the rating official more in line with his peers. Jolly also testified that this data could have been used in conjunction with testimony from employees involved to prove the Union's case in arbitration, although he stated that he hoped that Respondent would recognize the problem earlier during the Committee meeting. Specifically, on the favoritism issue, the Union allegedly had already seen favoritism in action on appraisals, i.e., an employee who delivered firewood to a manager getting an enhanced rating, and the data request was merely an attempt to substantiate and get a full understanding of the problem, according to Jolly. The Union would not pursue this aspect of the grievance if the requested data did not support its position, Jolly stated.

20. Regarding the application of the Privacy Act, Neumeier testified that the EBM 1193 forms are kept in a file marked with a "sticker on it that says protected under [ v29 p13 ] the Privacy Act or some such wording." Neumeier testified that he had not, until two weeks prior to the hearing, seen the Privacy Act systems notice for performance appraisals which governs their release. Further, Neumeier admitted that he never discussed this systems notice, which authorizes arbitrators and officials of labor organizations access to performance appraisal data, with management before the Union's data request was denied. However, he testified that, upon receipt of the grievance, he spent some 15 or 20 minutes to prepare a chart, based upon the format that the Union identified in its data request, which could have supplied the Union with all of its requested information had the overall performance appraisal score and safety rating been included. Neumeier also stated that if Respondent had decided to provide the information requested by the Union, all that was left to do with his chart was for someone to review the performance appraisals and include the overall and safety scores on the form. Neumeier testified that he also understood that he had the option, on the chart he prepared, pursuant to the Union's request of December 4, 1985, to delete unit employee's grades and/or their position titles to lessen the chances of unit employee identification.

21. The next day, December 5, 1985, Neumeier responded by letter stating that:

. . . management is not required to disclose any information concerning nonbargaining unit employees to Local Union 934.

For the record, management recognizes its responsibility for protecting the privacy interests of bargaining unit employees. In view of this, before management considers your request, we wish to be informed (1) as to whether or not the union membership has taken official action to authorize you to request such sensitive information concerning their individual performance appraisal ratings. If so, please provide us with a copy of the minutes of the membership meeting that authorized such a request. Management also requests that the union (2) identify the specific data the union is seeking in the instant case. In paragraph 3 of your December 4, 1985, letter, you stated ". . . all the Local [ v29 p14 ] wants is access to sufficient data to further process and substantiate the existing grievance now before us." Management specifically finds "sufficient data" to be ambiguous. "Sufficient data" needs to be explained more clearly.

Neumeier explained this letter by saying Respondent was concerned about releasing the requested data for privacy reasons and therefore wanted the Union to prove "that they were authorized by a substantial number of members in the bargaining unit" to ask for the data. As already noted, Neumeier testified that even if approximately half the employees had been identified as grievants, he still would not have provided the data. Concerning the term "sufficient data", this term had been used after the Union had clearly listed what data it wanted (i.e., data areas (a) and (b)) and in the context of the conversation that he and Neumeier had on the morning of December 4, 1985, according to Jolly.

22. Jolly, on December 6, 1985, responded to the above letter declining to provide the minutes of any Union membership meeting. However, he outlined the Union's position on "sufficient data" as follows:

Your request for clarification of the phrase "sufficient data" appearing in paragraph 6 of our December 4th letter seemingly represents another effort to muddy the waters in an attempt to avoid supplying the Local with information clearly and specifically described in that same letter. The data request contained in our letter of December 4, 1985, is quite clear and very specific. The information requested is succinctly summarized in paragraph 5 of that letter. Further, I have twice explained to you verbally exactly what information the Local requires, confirming it in writing in our letter of December 4th, and on both occasions you acknowledged understanding. One of these conversations took place on December 4th after your receipt of the Local's written information request of that same date.

Although your argument concerning "sufficient data" is clearly spurious, [ v29 p15 ] Local 934 hereby offers the following clarification, i.e. our reference to sufficient data refers to the specific information described in detail elsewhere in our 7114(b)(4) information request of December 4, 1985, and summarized in paragraph 5 of that same letter. Local 934 believes that the data requested in paragraph 5 of our December 4th information request constitutes the absolute minimum information necessary to investigate and process the ongoing grievance concerning management's failure to administer the established performance appraisal system in a fair and equitable manner. If the information supplied under our present 7114(b)(4) information request proves insufficient for our purposes, it may be necessary to submit additional information requests.

The letter denied interest in obtaining performance appraisal information about "non-bargaining" unit employees.

23. Neumeier responded on December 10, 1985, as follows:

As previously stated in management's letter to you dated December 5, 1985, management advised that it recognizes its responsibility for protecting the privacy interests of bargaining unit employees. Standing alone, the union is not entitled to receive any information in the unit employee's personnel files. The Privacy Act controls access to such files. You stated in your December 4, 1985 letter that "Local 934 is willing to accept the requested performance appraisal information without names, if the information is supplied us by organizational entity (i.e., research group, shop, etc.), and if the information is indexed such that an Arbitrator could later match names with (1) overall performance appraisals and (2) rating received on the job element of safety. In other words, some sort of code identifying individual employees ("Mr. A., Mr. B." etc.) would have to be established such that the [ v29 p16 ] requested information can be tied to specific individuals should an Arbitrator decide such correlation is necessary." Management cannot comply with the above, because the requested "indexed" and/or "coded" performance appraisal information would clearly identify individual unit employees by name. The union's interests in the instant case do not override the privacy interests of unit employees. Therefore, release of the subject information would violate unit employees' rights under the Privacy Act. . . .

The letter indicates no alternative way for the Union to obtain data. At the hearing, Neumeier testified that it was within Respondent's purview to determine whether the Union's need outweighed Respondent's perception of employee privacy interests. Neumeier never specified what privacy interest was involved. However, he took the position that if the Union disagreed with Respondent's decision, it could file an unfair labor practice charge to obtain release of the data.

24. Sometime around December 11, 1985 Jolly and Union President Swinfard met with Neumeier to ask him what the Union could do to make the data request "more palatable," how it could be better sanitized. They asked Neumeier again if he understood that the Union only wanted sanitized data; Neumeier confirmed he knew that fact, according to Swinfard. Neumeier said he had no suggestions to make about how the Union could modify its request, Jolly stated. Although Neumeier did not testify about this particular meeting he did testify that, on an unspecified date to an unnamed Union official, he asked if there wasn't some way Respondent could provide the data other than in the Union's format, but the unspecified Union official declined this offer. However, Respondent made an offering of any alternative way of releasing the data. Nor did Respondent ever provide any information to the Union regarding the unit employees whom the Union could not identify on Neumeier's chart by organization, grade or position, In addition to the data request discussion of December 11, 1985, the meeting acted to escalate the grievance to the second-step of the negotiated grievance procedure as we see by a December 11, 1985 letter to Neumeier. That letter read as follows:

This letter is to confirm the presentation of a step 2 grievance in [ v29 p17 ] accordance with Article VII Section 6, paragraph (2) of the Basic Agreement between the Rolla Research Center and NFFE Local 934. This grievance, outlined in our letter of November 27, 1985, concerns management's failure to administer the established performance appraisal system in a fair and equitable manner. In view of management's failure to offer a satisfactory resolution to this grievance during their verbal response of December 3, 1985, or in subsequent conversations, the Local is forced to raise this grievance to the second step for reconsideration at the next higher level of management.

This letter also confirms our verbal conversation of this morning regarding the Local's 5 U. S. Code 7114 (b)(4) information request in support of this same grievance. In that conversation, Dale Swinfard and I again explained the Local's information request of December 4, 1985. Again, we advised you (as Management Representative to Labor) that the requested performance appraisal information would not have to be supplied by name, thereby protecting the privacy of individuals while providing the Local with a minimum of information necessary to substantiate subject grievance, which was filed on behalf of the entire bargaining unit. We further advised you that the requested coding or indexing of information would not invade the privacy of individuals, since the coding or indexing would be done by management and would remain in management hands throughout the entire grievance process, unless requested otherwise by an Arbitrator (in which case the code or index would be made available to the Arbitrator by management, and would at no time be accessible to the Local).

In this conversation, you stated that your letter of December 10th refusing to supply the Local's 7114(b)(4) [ v29 p18 ] information request was management's final position. In response to our request for management counter-proposals regarding the Local's information request, you stated that management had no proposals to offer with regards handling this request differently, so as to be more acceptable to management.

Neumeier testified that the Union specifically stated that it was not grieving performance standards or elements. There is no indication that at this point Neumeier questioned the grievability or adequacy of the Union's position.

25. In a December 17, 1985 letter to Neumeier, Jolly requested that Respondent and the Union agree to discontinue further processing of the grievance until the FLRA ruled on the unfair labor practice charge filed by the Union concerning its request for information. Neumeier responded to Jolly's request by letter of December 18, 1985 stating that Respondent would not accept the Union's proposal to delay processing of the subject grievance. Respondent saw no reason to delay the processing of the grievance, according to Neumeier.

26. On December 24, 1985, the Union submitted the third step grievance to Respondent's Research Director under Article VI, Section 6(4), supra, as required. The third step is the first requiring a written document in the negotiated grievance procedure. Again Respondent did not question the adequacy of this grievance upon receipt of the third step document. Instead, according to Neumeier, through a letter of January 2, 1986, Respondent "decided that the grievance would be forwarded to the Joint Grievance Committee, that the Research Director would not at this point attempt a resolution according to the negotiated grievance procedure, and so advised the Union." Neumeier testified that the Acting Research Director who sent the letter, Mr. Cole, conferred with him when preparing and sending the letter. Later, Neumeier said that he was "off" when Cole sent the letter. Similarly, on cross-examination, Neumeier said that he "participated in the writing of this letter," that management consciously decided "not to attempt to resolve it (the grievance) at this stage but to send it to the Joint Grievance Committee." Thus, Neumeier for some reason gave two separate versions of why Respondent decided to send the grievance to the Committee. First, he confirmed that, since Respondent was awaiting help from its higher-level agency on the grievance, it sent the grievance to the Committee, [ v29 p19 ] passing an interim step, in order to buy time until an answer arrived. Then on cross-examination he said that the grievance was sent to the Committee, by-passing the interim step, because Respondent forgot about the interim step. The Union identified its two participants on the Committee in a January 8, 1986 letter to the Research Director.

27. Before the Committee could meet on January 9, 1986, Respondent's Research Director cancelled the meeting saying "management inadvertently failed to arrange for the parties to meet for the purpose of examining the grievance to determine if the issues raised therein were excluded from the negotiated grievance procedure by 370 DM 771. . . ." The regulation used by Respondent is the agency grievance procedure. As already noted, Article VI, Section 6,(4) of the collective bargaining agreement states that the parties will examine the grievance after the Research Director receives it, and:

If it is found to be a matter falling within the exclusions from grievance procedures listed in 370 DM 771 of the Departmental Manual, the Research Director will so advise the employee and his representative of any special procedures which may apply. Otherwise, he will attempt to resolve the grievance, or he will refer the case to the Joint Grievance Committee within five working days. . . .

Apparently, both sides were satisfied that no attempt to resolve the grievance had been made.

28. As a consequence of the cancellation of the Committee, Swinfard met with Neumeier on January 9, 1986 to discuss the application of 370 DM 771 to the Union's pending grievance. At this meeting, both testified that Neumeier referred to paragraph 3.6A.(7) of the regulation which states that "The content of critical elements and performance standards of an employee's position" are not grievable. According to Swinfard, Neumeier said paragraph 7 possibly might cause the grievance not to be processed, he was not sure at that time. While questioning that the critical elements and performance standards might not be grievable, Neumeier never asserted the grievability of any of the other three grievances filed on November 27, 1985.

29. The Union then hand-delivered a letter to Respondent at 1:30 P.M. on January 9, 1985, challenging the Committee's [ v29 p20 ] cancellation and stating that the Union representatives would attend it at 2:00 P.M., as scheduled. The Union attended the meeting, but Respondent did not.

30. On January 10, 1986, Respondent hand-delivered a letter declaring that an unspecified portion of the Union's four grievances were excluded from the negotiated grievance procedure and that the Committee meeting "pending determination of grievability of the issues, is now cancelled." The Union attempted to obtain a response from management through a letter of January 14, 1986 inquiring upon what provision of 370 DM 771 Respondent based its decision and asked what FLRA decisions the letter referenced were involved. Not only has Respondent never responded to this letter, but, the Committee has never met.

31. With regard to Article VI, Section 6, (4) of the collective bargaining agreement, according to Jolly, if the parties disagreed over whether an item is excluded from the grievance procedure then it should go to arbitration, as a grievability dispute, and that only an arbitrator could decide such grievability disputes, not the Research Director. Jolly further testified that the only way that a grievance could reach arbitration under the agreement was to have the Research Director forward it to the Committee which would recommend to the parties an arbitrator who "shall be selected"; the parties cannot reach arbitration under the contract without recourse to the Committee. Under Jolly's interpretation, the Research Director is required either to resolve the grievance or forward it to the Committee. In the Union's view, Respondent's January 10, 1986 letter cancelling the Committee pending a grievability determination, was a "box" since the Union could not get to arbitration over the grievability issue without getting a recommended arbitrator from the Committee, Jolly stated. Since the Research Director would not convene the Committee until grievability was decided, the Union under this view is stymied. Further, Jolly testified that Respondent, through its January 10, 1986 letter was, in his view, attempting to bifurcate the grievance procedure, having one arbitration over the grievability issue and another over the merits of the grievances; something the Union did not desire to do, nor could it afford. Finally, Jolly asserted that the Union cannot convene the Committee on its own.

32. Respondent, through its Counsel felt that if the Research Director determined that the grievance was not grievable, then there was no reason to convene the Committee, which was essentially a fact-finding body. In this regard, [ v29 p21 ] Neumeier testified that Article VI, section 6(4) gives the Research Director, the option of resolving or forwarding a grievance to the Committee. Nevertheless, he testified that if the Research Director decided that the grievance was not grievable, he did not have to forward it to the Committee, and the Union's only recourse was to take the issue to arbitration. Admittedly, however, the Committee selects the arbitrator and there is no contractual means to obtain selection without the Committee. Neumeier also dealt with the issue on cross-examination, stating that the contract does not specifically allow the Research Director to make grievability determinations nor require that the Research Director's grievability opinion be binding on the Union. Since according to Neumeier, the Union cannot summon the Committee unilaterally, he apparently envisioned an alternative to the negotiated grievance procedure, where the parties could somehow agree to an extra-contractual procedure to avoid the Committee and get a matter to arbitration when the Research Director determined that it was not grievable. Thus, Neumeier testified that by mutual agreement, the parties could waive the collective bargaining agreement provisions on the use of the Committee and develop alternate procedures to get to arbitration. The record, however, established that the Committee has never met as contemplated in the agreement and, that no such alternate means had been developed at the time of the hearing. Respondent apparently ignores the argument that grievability disputes should be settled by an arbitrator rather than the Research Director.

Discussion and Conclusions

I. Whether the General Counsel sustained its burden of proving that the requested data was readily available and necessary.

Respondent asserts that the General Counsel failed to sustain the burden of proving that the information sought by the Union was relevant and necessary to process a grievance. Respondent, in essence, argues that the information request made by the Union was too broad thereby constituting a "discovery type" request for information which was not necessary for the Union to prove the various allegations in the grievance. However, Respondent does not deny that the requested data, the EBM 1193, was normally maintained by it or reasonably available. In this regard, the record disclosed that EBM 1193's are normally maintained in the regular course of business and that the EBM 1193 was reasonably available for retrieval. Since there is no contrary evidence concerning the EBM 1193, it is found that the EBM [ v29 p22 ] 1193 is normally maintained by Respondent and was readily available for release to the Union.

The General Counsel contends that it sustained the burden of-proof that the requested information was relevant and necessary for substantiation and processing of the four grievances raised by the Union. The General Counsel asserts that the requested information was necessary for the Union to substantiate key elements of the four grievances about which it had only preliminary information. The FLRA has already found that legitimate representational purposes include supporting information and data requests sought to determine whether or not to file a grievance, whether to further process a grievance, and whether or not to make contract proposals. See, AAFES, Fort Carson and American Federation of Government Employees, AFL - CIO, Local 1345, 17 FLRA No. 92, 17 FLRA 624 (1985); U.S. Office of Personnel Management and American Federation of Government Employees, Local 32, 17 FLRA No. 100, 17 FLRA 685 (1985); Social Security Administration and AFGE, Local 2916, 17 FLRA No. 113, 17 FLRA 837 (1985). These cases are applicable to the instant matter.

The threshold question in the above cited cases is whether or not the data requested by the exclusive representative is necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining, including specifically the effective evaluation and processing of grievances. AAFES, Fort Carson, Colorado, supra. However, a determination must be made in the particular circumstances of each case whether data requested is "necessary" and must be disclosed. Defense Mapping Agency, Aerospace Center, St. Louis, Missouri, 21 FLRA 595 (1986); Bureau of Alcohol, Tobacco and Firearms, National Office, Washington, D.C., 18 FLRA No. 74, 18 FLRA 611 (1985); AAFES, Fort Carson, Colorado, supra.

In order to further process its grievances in this matter, the Union contended that it needed several items and supplied reasons why it needed each item both to Respondent and at the hearing. Those reasons are set out below:

Item 1 of the Union's November 27, 1985 grievance presented a Union concern that some Research Supervisors did not rate their employees equally for equivalent levels of performance. Information sought to establish, at least preliminarily that, different rating systems were used by supervising officials. Thus, the Union desired basic sanitized performance appraisals in order to determine if the variations in ratings it perceived did exist and, if so, [ v29 p 23 ] whether the information would support a continuation of the grievance.

With regard to whether a particular supervisor rated personnel lower for equivalent work than other similarly situated supervisors, the Union, in its December 4, 1985 letter requested certain information, the purpose of which had already been discussed on November 27 and December 4, respectively with Supervisors McIlwain and Neumeier. According to Jolly, for Item 1 it needed areas (a) and (b) of the data request, but only the parts of (a) that included the ratings for employees, the date of the rating and the job title and/or grade (the documents requested being sanitized, indexed, and organizationally divided, of course). The Union felt such information was necessary to compare positions, grades and supervisors over a three year period to determine if, in fact, one of more supervisors rated employees perceptibly different than others. Documents reflecting different ratings used in conjunction with employee explanations or testimony are a valid method for determining whether an exclusive representative should pursue or drop a grievance concerning disparate ratings. Furthermore, even Respondent admits that several of the items grieved were grievable and that at least one method of assessing their merit would be through information requests such as made here. Finally, as the General Counsel points out, the FLRA has found that information requested in order to make comparisons in grievance situations is disclosable. U.S. Equal Employment Opportunity Commission and AFGE, Local 3230, 20 FLRA No. 37, 20 FLRA 357 (1985). Based on existing FLRA precedent, it is my view that the Union's need for data to process Item 1 was demonstrated on the record, and that the information should have been released.

The second item of business raised by the Union in its initial letter of November 27, 1985, concerned the Center 's having been directed to score appraisals in such a manner that the average rating of the Center would be 2.2 per employee. While the Union first became aware of these directions in late 1983 the information request was not filed until 1985 because changes in certain Office of Personnel Management regulations concerning reductions-in-force weighed performance appraisals more heavily than in the past. With potential for reductions-in-force, the Union felt it essential to initiate action to establish fairness In overall ratings.

In its attempt to substantiate this potential grievance, the Union requested the EBM 1193 in raw form or a tabular [ v29 p24 ] compilation which it asserts would establish either that there was such a policy or that no such policy existed. In either event, the Union could intelligently make a determination as to whether or not to proceed with that aspect of the grievance. It is my view, that under existing FLRA precedent the release of such information was necessary to allow the exclusive representative to make a determination regarding this particular item.

The third item involved a Union observation, from talking with employees and being able to see some performance appraisals, that a policy existed concerning bargaining unit employees, except for the safety officer, of a "meets" rating being assigned for safety, without regard to whether a particular performance exceeded that rating. This blanket policy allegedly required such a rating without regard to actual employee performance, and of course, penalized those who might deserve higher ratings. Since there was apparently more than a suspicion that such a policy existed regarding the safety element, the requested data was necessary to prove or disprove whether such a policy existed and consequently allow the Union to determine whether or not to proceed with that aspect of the grievance. Clearly such information would be relevant to an exclusive representative's duty to investigate potential grievances and its release required in order to allow further processing of the grievance.

Similarly, the fourth item involved an observation which, if proven, would clearly be illegal, that of certain bargaining unit employees receiving appraisal scores based on favoritism rather than merit. If established, such a policy would undeniably be grievable. Here the Union had specific examples in mind, but needed documentation that employees who were the subject of favoritism would not provide for obvious reasons. The requested data, in conjunction with live evidence that the Union planned to present at arbitration, if necessary, constituted the sole method of establishing or disproving its case. The testimony provided the purported "why" for a rating, while the documents would prove the rating itself. Accordingly, it is my view that this necessary information was disclosable to allow the Union to perform its representational obligations.

The General Counsel further argues that the relevancy and necessity of all of the information sought by the Union in its representational role must not be judged by whether the Union would ultimately prevail with the evidence it [ v29 p 25 ] requested, but instead, whether or not the data would be legitimately useful to the Union in the investigation and/or presentation of its case. U.S. Customs Service, Region VII and NTEU, 10 FLRA No. 47, 10 FLRA 251 (1982) embraced the principle that a respondent violates the Statute by not providing information to a union where the ultimate grievability of the subject grievance (and therefore whether or not the union would prevail) was open to question. In this matter, the General Counsel does not contend that the requested information would, in fact, allow it to prevail, but asserts only that receipt of the data requested for its four distinct grievances, is a pre-condition, absolutely relevant and necessary, in its attempt to pursue representational responsibilities and investigate potential grievances. It is difficult to disagree with such a position since it is clearly the exclusive representative's responsibility to conduct investigations prior to filing frivolous grievances. For similar reasons Respondent's argument that San Diego Newspaper Guild, Local 95 of the Newspaper Guild, AFL - CIO, v. National Labor Relations Board, 548 F.2d 863, 868 (C.A. 9, 1977) is applicable, must be rejected. Here the Union's grievances were discussed with management and the parties disagreed as to whether a grievance existed. Simply because a respondent disagrees or contends a grievance is not grievable does not mean that the exclusive representative has to incontrovertibly demonstrate that a viable grievance exists. To require that the exclusive representative establish beyond any doubt, at a first step proceeding, that reasonableness exists in order to obtain data, is to defeat the statutory purpose of allowing it to have a full and proper understanding of issues it is arguing. Here Respondent had ample opportunity during several discussions to make an informed judgment as to whether it needed to release the information. Its choice not to supply the requested data was, in my view, incorrect.

Based on all of the foregoing, it is concluded that the General Counsel met its burden of proving that the requested information was readily available and necessary for the exclusive representative to meet its statutory obligations.

II. Whether the release of the data requested by the Union is precluded by the Privacy Act, 5 USC 552a.

The General Counsel argues that release of the EBM 1193 or the tabular compilation requested by the Union In its December 4, 1985 request is not precluded by the Privacy Act. [ v29 p26 ] In this matter, the exclusive representative viewed its role as protecting unit employees from: unduly harsh raters, in comparison to other raters; a policy mandating that the facility have a 2.2 average appraisal score; a policy that no unit employee can receive higher than a "meets" score in the safety element contained in each employee's performance standards, and; rater favoritism, based upon non-merit principles. In short, it felt that the Center was inequitably administering the performance appraisal system as it applied to unit employees. To eliminate this perceived unfairness, the Union sought both orally and in writing, to obtain information such as data without names, but indexed of coded so that comparisons could be made. The only answer forth-coming during the processing of the grievances and at the hearing, was that any index would provide the Union the opportunity to identify individuals to documents. Despite possible identification of individuals, there is no indication on the record that the information was to become generally known. Furthermore, since precautions urged by the Union almost assure that individual's names would be linked with their EBM only by an arbitrator, the possibility of their identities being known was remote. Consequently, the record is barren of evidence to establish that release of sanitized data requested by the Union would constitute "a clearly unwarranted invasion of privacy" as seen in 5 USC 552(b)(6), through 5 USC 552a(b)(2).

The General Counsel, relying on U.S. Equal Employment Opportunity Commission, supra, claims that the Union can request and receive "totally unsanitized" documents, particularly where Respondent neither alleges nor proves that the documents involved contain stigmatizing information, or where the documents would be subject to limited circulation necessary to process a particular case. See also, Army and Air Force Exchange System, supra, at p. 628.

In U.S. Equal Employment Opportunity Commission, supra, the FLRA stated:

The Privacy Act regulates the disclosure of any information contained in an agency "record" within a "system of records" that is retrieved by reference to an individual's name or some other personal identifier.6/ The employees' performance appraisals and letters of warning which the Union requested are considered records contained within the [ v29 p27 ] Respondent's system of records under the Privacy Act 7/ and are generally prohibited from disclosure unless one of the specific Privacy Act exceptions is applicable.8/ The exception set forth in 5 U.S.C. 552a(b)(2) permits disclosure of Privacy Act-protected information to the extent that such information is "required" to be released under the Freedom of Information Act (FOIA).9/ The theory of the FOIA, in contrast to the Privacy Act, is that all records in the possession of the agencies of the Federal Government must be disclosed upon request unless subject to a specific FOIA exemption. 10/ Under exemption (b)(6) of the FOIA, an agency is allowed to withhold personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of privacy. In cases where requests for individually identifiable records such as promotion and personnel files are made under the FOIA, the Federal courts apply a balancing test to determine whether disclosure would result in a clearly unwarranted invasion of privacy.11/ (footnotes omitted)

Even assuming that Respondent offered a valid privacy concern, the balancing test adopted by the FLRA and courts now weighs heavily in favor of having the information released unless there is a compelling reason not to do so. In this case, the information sought is only the overall numerical appraisal score of individuals and the actual rating for one of many critical elements, that of safety. As already noted, the record reveals only that the requested information would have been used by the Union to process grievances or to take a matter to arbitration. It reveals no sinister reason behind the Union's request or any clearly unwarranted invasion of privacy. Since no compelling reason for not disclosing the information to the Union for privacy reasons was offered, it is found that the balance here is tipped toward release of the information.

Also in agreement with the General Counsel, it is found that, Andrews v. Veterans Administration, 613 F. Supp. 1404 (D.C. WYO. 1985) relied on by Respondent is distinguishable. [ v29 p28 ] In that case, a violation of the Privacy Act was found due to the release of improperly sanitized performance appraisal information. The evidence there revealed that the Union requested data far beyond the need it espoused, that the information was not necessary to process a pending grievance, and that the sanitization was inadequate. Here, the request was in furtherance of a defensible, representational pursuit of the Union in processing four grievances. The data request, as I see it, was specific albeit verbose, related to separate itemized grievances, and, in my opinion was not broader than necessary for the Union to fulfill its statutory obligation. Furthermore, the Union requested only sanitized information or a table, without any underlying narrative portions of the appraisal which could conceivably contain information concerning specific job problems or stigmatizing information about individual employees which was seemingly of considerable concern to Respondent.

49 Fed. Reg. 36, 956 (1984) constitutes the OPM notice defining "routine use" of personnel records of Federal employees, Section e. defines a routine use as the disclosure of information to "officials of labor organizations recognized under 5 U.S.C. Chapter 71 when relevant and necessary to their duties of exclusive representation(.)" In Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA No. 101 (1986), the FLRA found the standard set out above as "effectively the same as section 7114(b)(4)'s limitation of an agency's obligation to provide information to that which is "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining(.)" Consequently, if the information is necessary within the meaning of section 7114(b)(4) of the Statute for the exclusive representative to discharge its statutory obligation including investigating and processing grievances, its disclosure is authorized under exception (b)(3) of the Privacy Act. The FLRA's interpretation is considerably broader than that urged by Respondent when it asserts that the foregoing regulation requires disclosure only of "relevant and necessary" information. Having already found that the requested information would aid the Union in its representational obligations, it is further found that disclosure of this information is not prohibited by law and may be released pursuant to exceptions (b)(2) and (3) of the Privacy Act.

III. Did Respondent's failure to furnish the data to the Union on December 10, 1985, and its continued refusal violate the Statute? [ v29 p29 ]

The General Counsel maintains that Respondent violated section 7116(a)(1), (5) and (8) of the Statute by not furnishing the Union with either the sanitized EBM 1193's or the tabular compilation it had created in response to the Union's information requests.

Under the Statute, it is indisputable that once the Union makes a data request which fulfills the requirements of section 7114(b)(4) an agency is obligated to release the information. See for example, Environmental Protection Agency, supra. In this matter, the Union, seemingly met all of the statutory requirements, however, Respondent interposed some defenses which require consideration.

In the first place, Respondent challenged the grievability of one Union grievance, the first of four and suggests in its brief that non-grievability is the basis for not disclosing all the information sought. In that regard, Customs Service, supra, as we had already seen, spurns the concept that because a grievance may ultimately be determined non-grievable, an agency has no obligation to make disclosure. Furthermore, the FLRA noted in U.S. Equal Employment Opportunity Commission, supra, fn. 5, that,:

the resolution of such grievability questions cognizable under law is for an arbitrator under the parties' agreement unless they mutually agree otherwise, and the existence of such a threshold question herein would not in and of itself relieve the Respondent of its obligation to furnish otherwise necessary information pursuant to section 7114(b)(4) of the Statute.

Consequently, Respondent's argument that Item 1 of the grievance was non-grievable, even if accepted, has no bearing on its duty to release information related to the three other grievances about which no grievability question was ever raised. Thus, at least preliminarily, the data was disclosable.

Respondent also pins its hopes on a finding that the Union's request was too broad for the processing of the grievances and was therefore, not relevant or necessary. In so doing Respondent asserts that it was not provided with "sufficient details initially" for it to make an informed judgment as to whether it should or should not provide the requested data it deems protected by the Privacy Act. The record does not support this overly broad contention. In [ v29 p 30 ] this case the Union requested relevant data to correct what it felt were inequities in the administration of the performance appraisal system by officials at the Center. The record shows that Respondent understood both the nature of the grievances and the necessity for such information. For some reason, it determined that the Union did not "need" that information. While the Union modified its request to make it more acceptable, Respondent neither varied from its rigid refusal to provide the information nor offered any alternative method of supplying the needed data. Hence, Respondent's assertion that the information requests were sweeping and ill-defined, where the Union sought specifically to tailor its requests to Respondent's alleged concerns, must be rejected. The total circumstances of the case establish, in my view, that Respondent had little intention of supplying the requested information no matter what form the Union's requests took. Accordingly, its conduct in refusing to release the requested data constituted a violation of the Statute.

IV. Did Respondent's conduct in not convening a Joint Grievance Committee preclude the Union recourse to arbitration in violation of section 7121 7 of the Statute and act as a repudiation of the collective bargaining agreement between the parties.

a. Breach of section 7121 of the Statute. [ v29 p31 ]

The main thrust of the General Counsel's argument here is that Respondent, through its action of January 10, 1986 in refusing to convene the Committee pending a grievability determination over one of the Union's four grievances, prevented the Union from going to arbitration over any of the grievances and, in fact, constituted a repudiation of the parties collective bargaining agreement. Respondent argues that it is not required to send a grievance to the Committee for fact finding when the subject is not covered by the grievance procedure.

The instant collective bargaining agreement was executed in 1970, and materially predates the Statute without amendment to the grievance procedure since that time. The basic grievance procedure in the collective bargaining agreement provides for the first two steps to be informal with the first written step being Step 3.

The complex procedure of Step 4 provides for several sub-steps. First, after receiving the Step 3 written grievance "covered by this Agreement," the Research Director or his designee is to so inform the Union and, with a representative of the Union, examine the grievance to determine if it is a matter falling within the exclusions from "grievance procedures listed in 370 DM 771 of the Departmental manual." If it is "a matter falling within the exclusions", he is to inform the employee of representative of any special procedures which might apply. "Otherwise", if it is not within the exclusions, the Director will attempt to resolve the grievance or refer it to the Committee for their consideration.

Section 5 sets out the functions the committee which are to receive evidence and "determine pertinent facts." Section 6, requires the Research Director to "resolve, the grievance, or refer the case to the Joint Grievance Committee." Section 6, Step 6 provides that "the Research Director and NFFE shall appoint an arbitrator recommended by the Committee." The facts establish that no grievance reached the Committee prior to 1985, but during that year, two completely unrelated grievances, which subsequently became the subject of other unfair labor practice charges were, filed and processed but, were not resolved and never reached Step 4 of the agreement's procedure. 8 [ v29 p32 ]

The above cited provisions of the agreement, on their face, show that once a grievance is sent to the Committee, it meets, considers the matter, and makes its recommendation to the Research Director. In the event the Research Director's decision is unacceptable, the Committee then recommends an arbitrator who "shall be" appointed by the Research Director and the Union. The authority to refer a matter to the Committee is solely within the province of the Research Director, this being the only method by which the Committee can be convened.

Respondent initially argues that since a grievability issue involving performance standards existed, the Research Director was not required to send the matter to the Committee pending resolution of the grievability issue. Respondent apparently views the four separate grievances as one. Neither the Union nor I see the grievance as one, but as one separate matter involving four different grievance situations. Respondent's argument ignores the fact that four separate issues were involved in the Union's four-part grievance and that the Research Director in attempting to resolve the matter answered only one of the four issues, leaving the other three suspended without any attempt at resolution. Since Respondent raised a grievability issue only about Item 1 of the grievance, even under its interpretation that the grievability issue should be resolved first, an obligation remained to adjust the remaining three grievances, which involving distinctly separate factual situations. Moreover, even under Respondent's interpretation it is clear that the grievability of any of the matters should not have been made by the Research Director.

Respondent also maintains that the Union was not prevented from going to arbitration because of its failure to convene the Committee meeting. Despite this argument there is no contention that the Union could unilaterally convene an arbitration in this matter. Nor does analysis show that the Union could have invoked arbitration without first going through the Committee.

In the case at bar, the Acting Research Director, decided not to resolve the pending grievances, but instead on January 2, 1986 immediately sent the matter to the Committee. Shortly thereafter, on January 10, 1986 after making a determination that one of the four grievances was not grievable, the Research Director overruled the earlier decision and cancelled the Committee until the "grievability" issue was resolved. However, the law is clear that the only method by which grievability issues can be resolved, absent mutual [ v29 p33 ] agreement or some clear and unequivocal waiver not present herein, is by an arbitrator. See Department of the Navy, Portsmouth Naval Shipyard and P.F.E.M.T.C., 11 FLRA No. 80, 11 FLRA 456 (1983). The Union contends that if the Committee is not convened no arbitrator can be selected to decide the grievability issue. The net result being, it would be unable to get any of its grievances resolved through arbitration, if necessary.

In interpreting section 7121 of the Statute, the FLRA held that:

unless the parties to a collective bargaining agreement negotiated prior to the effective date of the Statute mutually agree otherwise, under Section 7121 of the Statute their negotiated grievance procedures must be read as providing that all questions of arbitrability requiring resolution not otherwise resolved shall be submitted to arbitration. (Emphasis added)

Department of Labor, Employment Standards Administration, Wage and Hour Division, Washington, D.C. and AFGE and OPM, 10 FLRA No. 60, 10 FLRA 316 (1982), citing Interpretation and Guidance, 2 FLRA No. 32, 2 FLRA 273 (1979). In that case, the FLRA found a violation of section 7121, where a grievance was submitted to a joint labor-management committee for resolution, removed from the committee due to a dispute over the grievability of the issue involved, and where the agency stymied the further processing of the grievance to arbitration. Department of Labor, supra. Similarly refusing to proceed to arbitration, based upon a unilateral management decision or interpretation of regarding what is or is not grievable is violative of section 7116(a)(1) and (8) of the Statute. See also, American Federation of Government Employees, Local 2782, AFL - CIO and Department of Commerce, Bureau of Census, 21 FLRA No. 45, 21 FLRA 339 (1986), where the exclusive representative refused to proceed to arbitration because it felt grievances "were not grievable or arbitrable."

In this case, Respondent challenged Item 1 as concerning performance standards and critical elements and not grievable under the agency grievance procedure. Notwithstanding that position, Respondent not only never challenged the grievability of the remaining three parts of the grievance although they were not concerned with performance standards, but only [ v29 p34 ] with the equitable application of those standards and ignored those matters in its so-called resolution of the grievance. Nor did Respondent offer any satisfactory explanation why the remaining three grievances were not processed consistent with the existing collective bargaining agreement. Even assuming that the Research Director's determination as to the grievability of grievance Item 1 is binding on the Union, although the issue is one which should be decided by an arbitrator, the collective bargaining agreement contains only one method for selection of an arbitrator, through the Committee to the parties. Respondent's failure to convene the Committee leaves the Union with little option to arbitration other than waiving the agreement's procedure for use of the Committee and developing ad hoc, extra-contractual procedures. In essence, the processing of grievances 1-4 could occur only if the Union waived the contract procedure and developed a special procedure to decide the grievability of Item 1. Such unilateral Union action would, in my view, violate not only the letter but, the spirit of section 7121 of the Statute.

Respondent apparently justifies its position here on its interpretation of Article VI, Section 6(4) of the 1970 agreement which it sees as mandating through the words "will so advise," that the Research Director has final authority on grievability issues. Such an interpretation could only mean that the Union in 1970 waived its right to have an arbitrator decide grievability issues. This partisan reading of a pre - Statute agreement by no means constitutes a clear and unequivocal waiver of the statutory right to have an independent arbitrator, as present law requires, determine the merits of the grievability issue. The law is settled that any waiver of a statutory right must be "clear and unmistakable." Most assuredly, pre - Statute language encompassing the agency grievance procedure as a barometer for measuring grievability and using qualified words such as "advise" is not a clear and unequivocal waiver of the Union's right to arbitrate a matter, absent bargaining history over the 1970 agreement. Furthermore, if what Respondent means, is the Union in 1970, waived a right which was given by the statute only in 1979, see Interpretation and Guidance, supra, then it is arguing an anticipatory waiver which is extremely difficult to prove, even under the best of circumstances. Cf. A.F.G.E., Local 217 and Veterans Administration Medical Center, Augusta, Georgia, 21 FLRA No. 13, 21 FLRA 62 (1986).

In this same vein, Respondent also makes other arguments concerning Article VI, Section 6(4). The third sentence of which begins, after the 370 DM 771 procedure has been listed, [ v29 p35 ] with the word "Otherwise," or an alternate procedure. This alternate procedure provides the Research Director "will attempt to resolve the grievance, or he will refer the case to the Joint Grievance Committee." According to Neumeier, he and the Acting Research Director decided not to resolve the grievances and to send them to the Committee. Thus, between the two alternate procedures listed in Article VI, Section 6(4), it appears that Respondent chose the latter remedy (non-resolution and referral to the Committee) and the former (370 DM 771) is thereby rendered inapplicable.

370 DM 771 also becomes inapplicable by an inscription found in paragraph 3.6(16), issued on "5/4/81" according to the bottom left corner of the page involved, which post-dates both the Statute and the collective bargaining agreement. This provision states that the agency grievance procedure does not apply to "any grievance presented by bargaining unit employees covered by a negotiated grievance procedure. . . ." Thus, by operation of the Bureau of Mines own regulations issued after the agreement, with assumed knowledge of the existing negotiated grievance procedures, the agency by fiat has given the Union a broad scope grievance procedure -unfettered by any provision of 370 DM 771.

Assuming arguendo that, Respondent is correct in its view that Item 1 has to be resolved through an extra-contractual grievability procedure, it still failed as previously discussed, to convene the Committee or allow the process to continue for grievances 2, 3 or 4 over which it had raised no grievability questions. The failure to go forward with the three remaining grievances, in my opinion, improperly, served to truncate the grievance procedure, since the Union could not appeal to an arbitrator because of the unique language of the existing agreement.

The General Counsel also argues that the requirement in Respondent's January 10, 1986 letter to the Union that grievability must be decided before the merits of grievances 1-4 could be addressed, also violates the Statute for the separate reason that it required bifurcation of the procedure. In support, he cites Department of the Army, 83rd USARC, Columbus, Ohio, 11 FLRA No. 20, 11 FLRA 55 (1983) where an agency's refusal to proceed to arbitration on a grievance unless an arbitrator first held a hearing on the underlying arbitrability of the issue violated the Statute. Here Respondent pre-conditioned the referral of four grievances to the Committee, seemingly the only way it can be referred to arbitration, on an initial and separate [ v29 p36 ] grievability determination regarding only one of the four grievances. This course of conduct, it is concluded, precluded the Union from its recourse to arbitration on, at least the three grievances about which no grievability question existed, thereby violating section 7116(a)(1) and (8) of the Statute.

b. Whether Respondent repudiated the parties collective bargaining agreement.

Respondent argues that its failure to call a meeting of the Committee does not constitute a rejection of the parties collective bargaining agreement in violation of section 7116(a)(1), (5) and (8) of the Statute. The Committee can be reconvened to select an arbitrator according to Respondent.

In order to distinguish this case from U.S. Customs Service, supra, and establish a repudiation of the collective bargaining agreement, the General Counsel sought to prove that the alleged repudiation involved more than a single incident and that the provision alleged to have been repudiated was not subject to interpretation. Kaiserslauten American High School, DODDS and OFT, 9 FLRA No. 28, 9 FLRA 184 (1982); Customs Service, supra; Harry S. Truman Memorial Veterans Hospital and A.F.G.E., Local 3399, 11 FLRA No. 90, 11 FLRA 516 (1983); Internal Revenue Service and NTEU, 12 FLRA No. 87, 12 FLRA 445 (1983), and; Social Security Administration and AFGE, Local 1501, 18 FLRA No. 101, 18 FLRA 855 (1985). Thus, the General Counsel urges there is a consistency in refusing to refer grievances to the Committee by Respondent.

As already noted, in 1985 prior to filing the instant grievances, the Union sought to process two other grievances; one over a sign-in/sign-out sheet;and, a second concerning an alleged failure of Respondent to clear ice and snow from its facility. In the former, Respondent refused to refer the grievances to the Committee challenging the right of the Union to file a grievance on behalf of the whole bargaining unit - a grievability issue. Respondent refused to refer the latter grievance filed on behalf of an individual to the Committee because the Research Director decided, unilaterally, that he had resolved it. Both these actions by Respondent resulted in unfair labor practice charges being filed over its alleged repudiation of Article VI, Section 6(4) of the collective bargaining agreement and a Consolidated Complaint was issued by the Regional Director, Region 7, over the same issues. Prior to hearing, the cases [ v29 p37 ] settled. Here Respondent declared Item 1 to be non-grievable and, as already noted, refused to process any of the four grievances to the Committee. However, under present law the Research Director is not the final arbiter with respect to grievability and he cannot dispose of that issue without an impartial determination of grievability. Clearly that issue should have been resolved by someone other than the Research Director. Without question the record supports a finding that during an eleven month period, Respondent refused to refer any existing grievances pending at the third step to the Committee, thereby, refusing to send grievances to the contractual fourth step. Such conduct where the parties had already established an agreed upon procedure to submit matters to the fourth step of the grievance procedure is found to violate the Statute.

Even assuming that Respondent correctly asserted that the language in Article VI, Section 6(4) is ambiguous on the procedure for determining grievability, such a position would acquit it from an unfair labor practice only on the refusal to process Item 1, the only item where grievability was raised by Respondent. The other grievances involved inequitable application of the system and were not so intertwined in the grievability controversy as to prevent their separation and processing. Respondent's failure to continue processing those grievances is, in my opinion, tantamount to a repudiation of the agreement.

In agreement with the General Counsel, it is concluded that Respondent through its January 10, 1986 letter precluded the Union from exercising its right to arbitrate a grievance, to have an arbitrator decide grievability or to have a non-divided arbitration. Such conduct, it is found, repudiates the clear language of the parties collective bargaining agreement in violation of section 7116(a)(1) and (5) of the Statute.

Based on all of the foregoing, it is found and concluded that the General Counsel established by a preponderance of the evidence that all of the elements of information requested pursuant to section 7114(b)(4) were satisfied by the Union and that Respondent's refusal to release the requested information violated section 7116(a)(1), (5) and (8) of the Statute. Further, it is found that Respondent failed to comply with section 7121 of the Statute by refusing to process a grievance to the fourth step as required by the parties collective bargaining agreement and by repudiating the collective bargaining agreement concerning forwarding grievances to the Joint Grievance Committee in violation of [ v29 p38 ] section 7116(a)(1), (5) and (8) of the statute on January 10, 1986. Having found that Respondent violated section 7116(a)(1), (5) and (8) of the Statute it is recommended that the Authority adopt the following 9 :

ORDER

Pursuant to Section 7118(a)(7)(A) of the Federal Service Labor - Management Relations Statute, 5 U.S.C. Section 7118(a) (7)(A), and Section 2423.29(b)(1) of the Rules and Regulations, 5 C.F.R. Section 2423.29(b)(1), the Authority hereby orders that the Rolla Research Center, U.S. Bureau of Mines, Rolla, Missouri shall:

1. Cease and desist from:

(a) Refusing to provide to the National Federation of Federal Employees, Local 934, the employees' exclusive representative, all requested data reasonably available and necessary for it to properly perform its representational function in connection with the grievances filed by it on November 27, 1985.

(b) Refusing to refer all outstanding grievances filed on November 27, 1985 by the National Federation of Federal Employees, Local 934, the employees' exclusive representative, to the contractual Joint Grievance Committee when such grievances are not mutually resolved.

(c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor - Management Relations Statute: [ v29 p 39 ]

(a) Upon request, provide to the National Federation of Federal Employees, Local 934, the employees' exclusive representative, all requested data reasonably available and necessary for it to properly perform its representational function in connection with the grievances filed on November 27, 1985.

(b) Upon request refer all outstanding grievances filed by the National Federation of Federal Employees, Local 934, the employees' exclusive representative, to the contractual Joint Grievance Committee when such grievances are not mutually resolved.

(c) Post at its Rolla Research Center, U.S. Bureau of Mines facilities copies of the attached notice marked "Appendix A" on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Research Director, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure 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 7, 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.

ELI NASH, JR.
Administrative Law Judge

Dated: February 12, 1987
       Washington, D.C.

[ v29 p40 ]

                          APPENDIX "A"
                    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 STATUTE
             WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT refuse to provide to the National Federation of Federal Employees, Local 934, the employees' exclusive representative, all requested data reasonably available and necessary for it to properly perform its representational function in connection with the grievances filed by it on November 27, 1985.

WE WILL NOT refuse to refer all outstanding grievances filed on November 27, 1985 by the National Federation of Federal Employees, Local 934, the employees' exclusive representative, to the contractual Joint Grievance Committee when such grievances are not mutually resolved.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce any employee in the exercise of their rights guaranteed by the Federal Service Labor - Management Relations Statute.

WE WILL, upon request, provide to the National Federation of Federal Employees, Local 934, the employees' exclusive representative, all requested data reasonably available and necessary for it to properly perform its representational function in connection with the grievances filed on November 27, 1985.

WE WILL, upon request refer all outstanding grievances filed on November 27, 1985 by the National Federation of Federal Employees, Local 934, the employees' exclusive representative, [PAGE] to the contractual Joint Grievance Committee when such grievances are not mutually resolved.

                              _____________________________
                                   (Agency or Activity)

Dated:_____________________By:_____________________________
                                 (Signature)

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 of the Federal Labor Relations Authority, Region 7, whose address is: 535 - 16th Street, Suite 310, Denver, CO 80202, and whose telephone number is: (303) 837-5224. [ v29 p2 ]

FOOTNOTES

Footnote 1 For the reasons discussed in section V(c) of this decision, we find, in agreement with the Judge, that the four parts of the grievance should have been treated by the Respondent as four separate grievances. Therefore, throughout this decision they are referred to as "grievances."

Footnote 2 The Judge made no finding regarding whether the Respondent's failure to convene the Committee precluded arbitration as to the first grievance. Thus, he stated: "assuming arguendo that, Respondent is correct in its view that Item 1 has to be resolved through an extra-contractual grievability procedure, it still failed . . . to convene the Committee or allow the process to continue for grievances 2, 3 or 4 over which it has raised no grievability questions." ALJ Decision at 36.

Footnote 3 The Respondent also excepted to the Judge's statement (on p. 31 of his decision) regarding the effect of its failure to offer alternative methods of supplying the information. This argument takes the statement out of context. That fact was part of the total circumstances viewed by the Judge as leading to the conclusion that the Respondent "had little intention of supplying the requested information no matter what form the Union's requests took."

Footnote 4 The Judge did not specifically pass upon the allegation of the complaint that the Respondent's failure to furnish data violated section 7116(a)(5) of the Statute. In view of the fact that the General Counsel did not except, we will not modify that portion of the Judge's decision.

Footnote 5 The General Counsel filed a motion to Strike Portions of Respondent's Post Hearing Brief on June 11, 1986. On July 23, 1986 Respondent answered. After careful consideration of the motions, it is concluded that the General Counsel's motion should be, and it hereby is, denied.

Footnote 6 Respondent moved to strike any evidence with regard to the above settlement agreement. It contends that the agreement is not material to the issues involved in this case. Further, Respondent asserted that evidence pertaining to unfair labor practice settlements are generally not admissible and may not be used to prove the truth or falsity of any allegations set out in the complaint. Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 21 FLRA No. 71, 21 FLRA 535 (1986). Respondent's argument is confusing since it is the one who attempted to introduce evidence concerning negotiations during the settlement of the two unfair labor practice charges. Evidence which clearly could not be used to establish or to disprove an unfair labor practice. The use of such evidence is clearly inadmissible under the public sector case cited by Respondent, as well as in private sector cases. However, inadmissibility as primary evidence notwithstanding, the private sector law allows such evidence for limited purposes. See, Northern California District Council of Handcarriers and Common Laborers of America, AFL-CIO; Construction and General Laborers Union Local No. 185, AFL-CIO, and Joseph Mohamed, Sr., an Individual d/b/a Joseph's Landscaping Service, 154 NLRB 1384, where the NLRB modified its practice not to consider as evidence of unfair labor practice conduct of a respondent antedating a settlement agreement, unless the respondent failed to comply with the settlement agreement or had engaged in independent unfair labor practices since the settlement. The Board's modification allowed the use of pre-settlement conduct as background evidence establishing a motive or object of a respondent in its post settlement activities. Here the General Counsel's evidence is offered merely to establish a background for the unfair labor practice. Respondent on the other hand, at the hearing, sought to introduce evidence of negotiations concerning the settlement of those charges and the reasons for entering a Memorandum of Understanding with the Un