[ v02 p40 ]
02:0040(6)CA
The decision of the Authority follows:
2 FLRA No. 6
BUREAU OF GOVERNMENT FINANCIAL OPERATIONS
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Complainant
Assistant Secretary
Case No. 22-09144(CA)
DECISION AND ORDER
ON APRIL 23, 1979, ADMINISTRATIVE LAW JUDGE WILLIAM NAIMARK ISSUED
HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR
PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT THE COMPLAINT
BE DISMISSED IN ITS ENTIRETY. THEREAFTER, THE RESPONDENT FILED
EXCEPTIONS WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
DECISION AND ORDER. /1/
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
(44 F.R. 44741, JULY 30, 1979). THE AUTHORITY CONTINUES TO BE
RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN
SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE
HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS CASE,
INCLUDING THE EXCEPTIONS FILED BY THE RESPONDENT, THE AUTHORITY HEREBY
ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, /2/ CONCLUSIONS AND
RECOMMENDATIONS UNDER THE CIRCUMSTANCES HEREIN, NOTING PARTICULARLY THAT
THERE IS NO EVIDENCE THAT AT THE TIME IT REQUESTED THE UNSANITIZED
SURVEY RESULTS, THE COMPLAINANT ASSERTED ANY VALID REASON AS TO WHY SUCH
INFORMATION WAS NECESSARY AND RELEVANT TO ITS DUTIES AS A BARGAINING
AGENT. /3/
ORDER /4/
IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
NO. 22-09144(CA) BE, AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., NOVEMBER 2, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY /5/
JOSEPH S. SMOLEN
HAROLD H. HOWARD
LABOR MANAGEMENT RELATIONS SPECIALISTS
BUREAU OF GOVERNMENT FINANCIAL OPERATIONS
TREASURY ANNEX
MADISON & PENNSYLVANIA AVENUES
WASHINGTON, D.C. 20226
FOR THE RESPONDENT
JAMES R. LAWRENCE, ESQUIRE
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, N.W., SUITE 1101
WASHINGTON, D.C. 20006
FOR THE COMPLAINANT
BEFORE: WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DECISION AND ORDER
STATEMENT OF THE CASE
PURSUANT TO A NOTICE OF HEARING ON COMPLAINT ISSUED ON DECEMBER 1,
1978 BY THE REGIONAL ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES
ADMINISTRATION, U.S. DEPARTMENT OF LABOR, PHILADELPHIA REGION, A
HEARING WAS HELD BEFORE THE UNDERSIGNED ON FEBRUARY 1 AND 2, 1979 AT
WASHINGTON, D.C.
THIS PROCEEDING WAS INITIATED UNDER EXECUTIVE ORDER 11491, AS AMENDED
(HEREIN CALLED THE ORDER), BASED ON A COMPLAINT FILED ON AUGUST 1, 1978
BY NATIONAL TREASURY EMPLOYEES UNION (HEREIN CALLED COMPLAINANT) AGAINST
THE BUREAU OF GOVERNMENT FINANCIAL OPERATIONS (HEREIN CALLED
RESPONDENT). IT WAS ALLEGED IN THE COMPLAINT THAT RESPONDENT VIOLATED
SECTIONS 19(A)(1) AND (6) OF THE ORDER BY REFUSING AND DENYING A
REQUEST, MADE BY COMPLAINANT ON APRIL 13, 1978, FOR ACCESS TO THE RESULT
OF A SURVEY CONDUCTED BY RESPONDENT OF EMPLOYEE ATTITUDES. RESPONDENT
FILED RESPONSE TO THE COMPLAINT ON AUGUST 29, 1978 IN WHICH IT DENIED
THE COMMISSIONS OF ANY UNFAIR LABOR PRACTICES. /6/
BOTH PARTIES WERE REPRESENTED AT THE HEARING, WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE AND TO EXAMINE AS WELL AS
CROSS-EXAMINE WITNESSES. THEREAFTER, BOTH PARTIES FILED BRIEFS WHICH
HAVE BEEN DULY CONSIDERED.
UPON THE ENTIRE RECORD HEREIN, FROM MY OBSERVATION OF THE WITNESSES
AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE ADDUCED
AT THE HEARING, I MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS:
FINDINGS OF FACT
1. AT ALL TIMES MATERIAL HEREIN COMPLAINANT HAS BEEN, AND STILL IS,
THE COLLECTIVE BARGAINING REPRESENTATIVE OF RESPONDENT'S
NON-PROFESSIONAL AND WAGE GRADE EMPLOYEES.
2. BY LETTER DATED NOVEMBER 22, 1977 RESPONDENT INFORMED COMPLAINANT
THAT IT WOULD BEGIN CONDUCTING A MANAGEMENT SURVEY (HEREIN CALLED MAS)
ON DECEMBER 12, 1977. THE UNION WAS APPRISED IN THE LETTER THAT
EMPLOYEES WOULD BE REQUESTED TO ANSWER VARIOUS QUESTIONS IN THE SURVEY
AND A COPY OF THE QUESTIONNAIRE WAS ENCLOSED THEREWITH. MOREOVER, THE
STATED PURPOSES OF THE SURVEY WERE TO: (A) PROVIDE STATISTICAL FEEDBACK
TO THE MANAGER RE THEIR EMPLOYEES' ATTITUDES ABOUT MANAGEMENT IN EACH
COMPONENT SUPERVISED BY A MANAGER; (B) PROVIDE COMPARATIVE DATA RE
ATTITUDES OF EMPLOYEES IN A GIVEN COMPONENT CONTRASTED WITH EMPLOYEES'
ATTITUDES IN OTHER COMPONENTS; (C) PROVIDE COMPARATIVE DATA RE
ATTITUDES OF RESPONDENT'S EMPLOYEES CONTRASTED WITH THE ATTITUDES OF
EMPLOYEES IN OTHER BUREAUS OF THE TREASURY DEPARTMENT.
3. SUBSEQUENT TO NOVEMBER 22, 1977 THE PARTIES HEREIN DISCUSSED THE
PROSPECTIVE SURVEY. ALTHOUGH THEY DID NOT REGISTER OBJECTION TO THE
SURVEY AND DID ASSENT THERETO, COMPLAINANT'S REPRESENTATIVES, SUSAN
MCCLUSKEY AND FRANK FERRIS, INSISTED THAT THE UNION SHOULD HAVE A COPY
OF THE RESULTS. THE UNION REPEATED ITS REQUEST IN DECEMBER. DESPITE
THE FACT THAT MANAGEMENT WAS WILLING TO GIVE THE MAS RESULTS TO
COMPLAINANT, IT WAS NOT CERTAIN TO WHAT EXTENT THE DATA SHOULD BE
DIVULGED.
4. IN JANUARY, 1978, THE UNION PUBLISHED ITS NEWSLETTER. "SNOOPY",
IN WHICH IT URGED ALL EMPLOYEES WHO ARE ASKED TO COMPLETE THE
QUESTIONNAIRE, TO SENT MANAGEMENT A MESSAGE AS TO HOW POOR CONDITIONS
WERE AT THE ACTIVITY.
5. THEREAFTER THE PARTIES AGAIN DISCUSSED THE PROPOSED MAS.
RESPONDENT WAS RELUCTANT TO DISCLOSE ANY DATA WHICH WOULD REVEAL THE
IDENTITY OF THE SUPERVISORS OR MANAGERS BELOW THE LEVEL OF ASSISTANT
COMMISSIONER. FERRIS, WHO INSISTED UPON SUCH DATA, REMARKED THE UNION
WOULD SABATAGE THE RESULTS AND PUBLISH THE NAMES OF SUPERVISORS WHO
FARED BADLY IN THE SURVEY. /7/
6. AS A RESULT OF THE DISCUSSIONS BETWEEN THEM, AND IN ORDER TO
FURTHER A COOPERATIVE UNDERTAKING, BOTH PARTIES SIGNED A JOINT STATEMENT
OF FEBRUARY 2, 1978 DIRECTED TO ALL HEADQUARTERS EMPLOYEES. THE MEMO
ANNOUNCED THAT, STARTING FEBRUARY 6, 1978, A MANAGEMENT SURVEY WOULD
BEGIN SEEKING TO IDENTIFY ATTITUDES AND PROBLEMS OF EMPLOYEES; THAT
BOTH THE UNION AND THE EMPLOYEES AGREED THE SURVEY WOULD BE A HELPFUL
AND BENEFICIAL TOOL TO ASSESS THE WORK ENVIRONMENT; AND THAT THE
UNDERTAKING WAS DESIGNED TO IDENTIFY EMPLOYEE OPINIONS RE THEIR WORKING
CONDITIONS. IT WAS ALSO STATED THAT ALL EMPLOYEES SHOULD COMPLETE THE
SURVEY ACCURATELY.
7. THE MAS WAS DEVELOPED BY THE INSTITUTE FOR BEHAVIORAL RESEARCH IN
CREATIVITY. IT WAS CONDUCTED IN RESPONDENT'S OPERATION IN 1975, AT
WHICH TIME ALL LEVEL RESULTS WERE FURNISHED THE UNION. MAS WAS DESIGNED
TO AID MANAGER AND SUPERVISORS MAKE BETTER USE OF THEIR HUMAN RESOURCES.
THE SURVEY INVOLVED A 100 ITEM QUESTIONNAIRE RELATED TO 19 DIFFERENT
ASPECTS OF ORGANIZATIONAL CLIMATE OR MANAGEMENT AREAS. ANSWERS TO THESE
QUESTIONS PROVIDE AN ANALYSIS OF THE WORK ENVIRONMENT AS SEEN THROUGH
THE EYES OF THE EMPLOYEES. THE 19 FACTORS, TO WHICH THE QUESTIONS ARE
KEYED, CONSIST OF THE FOLLOWING:
1. FAIRNESS OF MANAGEMENT
2. DELEGATION OF AUTHORITY
3. SUPERVISORY EFFECTIVENESS
4. PLANNING & ADMINISTRATIVE EFFICIENCY
5. CLIMATE FOR INNOVATION
6. WORK SATISFACTION
7. TRAINING EFFECTIVENESS
8. PERFORMANCE FEEDBACK
9. EQUAL EMPLOYMENT OPPORTUNITY FOR WOMEN
10. EQUAL EMPLOYMENT OPPORTUNITY FOR MINORITIES
11. OPPORTUNITY FOR PROMOTION
12. DOWNWARD COMMUNICATION
13. UPWARD COMMUNICATION
14. SATISFACTION WITH PAY
15. MORALE
16. PHYSICAL WORKING CONDITIONS & EQUIPMENT
17. CO-WORKER COOPERATION
18. OPERATIONAL EFFICIENCY
19. WORKLOAD BALANCE
AFTER THE QUESTIONS HAVE BEEN ANSWERED THE SCORES ARE TABULATED BY
TWO METHODS: (A) THE PERCENT OF FAVORABLE RESPONSES BASED ON A
PERCENTAGE OF EMPLOYEES WHO CHOSE THE MOST FAVORABLE ANSWERS /8/ TO
QUESTIONS IN A CERTAIN AREA; (B) THE PERCENTILE RANK SYSTEM WHICH
DESCRIBES THE SCORE OF A WORK GROUP AND COMPARES IT TO A NORM GROUP.
THUS, UNDER THE PERCENT SCORING SYSTEM, IF A RESULTANT FIGURE IS 53 FOR
THE #1 FACTOR, FAIRNESS OF MANAGEMENT, THIS INDICATES THAT 53% OF THE
EMPLOYEES FELT MANAGEMENT TO BE FAIR.
8. UPON THE FINAL TABULATIONS OF MAS SCORES EACH SUPERVISOR, WHO
SUPERVISES A UNIT OF FIVE OR MORE EMPLOYEES, RECEIVES HIS OWN FEEDBACK
REPORT-- AN ANALYSIS OF HIS WORK ENVIRONMENT. HE IS EXPECTED TO
COMMUNICATE TO HIS EMPLOYEES ANY EXISTING PROBLEMS AND THEREBY ATTEMPT,
BY REASON OF SHARING THE INFORMATION, TO SOLVE DIFFICULTIES WITHIN HIS
UNIT. HOWEVER, MANAGEMENT ALLOWS EACH SUPERVISOR TO DECIDE WHETHER HE
DESIRES TO DISCUSS THE FEEDBACK WITH HIS EMPLOYEES. /9/ EACH SUPERVISOR
ALSO RECEIVES A COPY OF THE MAS HANDBOOK TO GUIDE HIM IN UNDERSTANDING
THE SURVEY, THEIR RELATIONSHIPS TO OTHER SCORES AND TO HELP IMPROVE
PERFORMANCE WITHIN HIS UNIT. AS INDICATED IN THE HANDBOOK, THE
INFORMATION IS INCLUDED ONLY AS A GUIDE TO FUTURE MANAGEMENT ACTIONS AND
NOT TO BE USED AS DISCIPLINARY OR OTHER ADVERSE PERSONAL ACTION.
9. NEGOTIATIONS FOR A COLLECTIVE BARGAINING AGREEMENT BETWEEN THE
PARTIES HEREIN COMMENCED ON FEBRUARY 14, 1978. ON THAT DATE UNION
REPRESENTATIVE FERRIS TOLD MANAGEMENT THAT THE MAS WAS ONE OF ITS
BIGGEST CLUBS; THAT IF THE RESPONDENT DID NOT RESPOND PROPERLY, THE
UNION COULD AIR THE MAS DATA OUTSIDE THE BARGAINING ROOM, PUBLISH THE
BAD SUPERVISOR OF THE MONTH IN ITS NEWSLETTER, AND WOULD GET RESPONDENT
"WHERE IT HURTS." FERRIS ALSO STATED THAT THE EMPLOYER COULD "BUY IT
(MAS) BACK" DURING NEGOTIATIONS, SUGGESTING THAT THE UNION WOULD NOT
PUBLISH THE DATA IF CONTRACT NEGOTIATIONS WERE TO ITS ADVANTAGE. THE
UNION REPRESENTATIVE ALSO REMARKED THAT IF MANAGEMENT DID NOT RESPOND
FAVORABLY DURING NEGOTIATIONS, THE MAS RESULTS COULD BE USED TO
EMBARRASS MANAGERS.
10. BY LETTER DATED APRIL 13, 1978 COMPLAINANT REQUESTED, PURSUANT
TO THE ORDER AND THE FREEDOM OF INFORMATION ACT, THAT RESPONDENT FURNISH
IT WITH ALL STATISTICAL AND ANALYTICAL DATA CONCERNING THE MAS SURVEY.
/10/ THIS WRITTEN REQUEST ENCOMPASSED THE RESULTANT SCORES AT THE LOWEST
ORGANIZATIONAL LEVEL.
11. ON MAY 4, 1978 RESPONDENT ADVISED COMPLAINANT THAT IT WOULD
RECEIVE THE DATA REQUESTED IN SANITIZED FORM ON OR BEFORE JUNE 15. IN A
LETTER TO COMPLAINANT DATED THE FOLLOWING DAY RESPONDENT STATED ITS
DESIRE TO PROTECT THE PRIVACY OF THE SUPERVISORS AND MANAGERS IN RESPECT
TO THE MAS SURVEY. THE EMPLOYER STATED THAT THE INFORMATION FURNISHED
/11/ THE UNION, AND TO BE FURNISHED, REPRESENTED AN HONEST EFFORT TO
PROVIDE THE MAXIMUM INFORMATION PROVIDED UNDER THE FREEDOM OF
INFORMATION ACT. SUBSEQUENTLY, ON MAY 11, 1978, RESPONDENT HAND
DELIVERED TO COMPLAINANT A LETTER REITERATING ITS INTENTION TO DELIVER
ALL MAS DATA BY JUNE 15, AND STATING THAT THE DATA RE WORK LEVEL BELOW
ASSISTANT COMMISSIONER WOULD BE SANITIZED TO PROTECT THE PRIVACY OF THE
SUPERVISORS. MOREOVER, RESPONDENT AVERRED IT DID NOT BELIEVE THE
IDENTIFICATION OF MANAGERS OR SUPERVISORS WAS RELEVANT OR NECESSARY FOR
THE PURPOSE OF INTELLIGENT BARGAINING.
12. ON JUNE 15, 1978 ALL MAS SURVEY RESULTS WERE FURNISHED
COMPLAINANT. HOWEVER, THE SCORES SHEETS WERE SANITIZED, AND PAGES
INVOLVING LEVELS BELOW THE ASSISTANT COMMISSIONER WERE SCRAMBLED TO
PROTECT THE IDENTITY OF THE SUPERVISORS /12/ OF THOSE LOWER LEVELS OR
UNITS. A COLLECTIVE BARGAINING AGREEMENT WAS REACHED BY THE PARTIES
THEREAFTER WHICH BECAME EFFECTIVE ON OCTOBER 19, 1978 FOR A TERM OF TWO
YEARS.
CONCLUSIONS
APART FROM ITS SUBSTANTIVE DEFENSES, RESPONDENT RAISES SEVERAL
"PROCEDURAL" GROUNDS FOR DISMISSAL. /13/ IT CONTENDS THAT: (1) UNDER 5
USC 7114(B)(4)(C), WHICH IS THE NEW TITLE VII, FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS ACT, THE OBLIGATION TO BARGAIN DOES NOT
REQUIRE AN AGENCY TO FURNISH DATA WHICH CONSTITUTES GUIDANCE, ADVICE,
COUNSEL OR TRAINING FOR MANAGEMENT SUPERVISORS, AND THEREFORE
RESPONDENT
MAY NOT BE CHARGED WITH A VIOLATION OF THE ORDER SINCE THE MATERIAL
SOUGHT HEREIN WAS GUIDANCE AND COUNSEL FOR ITS SUPERVISORS; (2) THIS
PROCEEDING IS BARRED BY SECTION 19(D) OF THE ORDER SINCE COMPLAINANT
PROCEEDED UNDER THE FREEDOM OF INFORMATION ACT, HAVING AN APPEALS
MECHANISM, TO OBTAIN THE SAME INFORMATION SOUGHT UNDER THE ORDER.
UPON CONSIDERATION OF THE AFORESAID CONTENTIONS, I AM PERSUADED THAT
NEITHER HAS MERIT. SECTION 7114(B)(4)(C) OF THE NEW ACT HAS NO
APPLICABILITY TO THIS MATTER SINCE THE STATUTE BECAME EFFECTIVE AFTER
THE INCIDENTS HEREIN AND SUBSEQUENT TO THE FILING OF THIS COMPLAINT. NO
RETROACTIVE EFFECT MAY BE GIVEN TO THIS LEGISLATIVE. FURTHER, WHILE
19(D) OF THE ORDER PRECLUDES RAISING ISSUES UNDER SECTION 19 WHICH MAY
BE PROPERLY RAISED UNDER AN APPEALS PROCEDURE, THE ISSUE AS TO WHETHER
RESPONDENT'S FAILURE TO FURNISH THE DATA SOUGHT HEREIN IS AN UNFAIR
LABOR PRACTICE COULD NOT BE RAISED UNDER THE FDIA APPEALS PROCEDURE. IN
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, REGION VIII, A/SLMR NO.
1109, JUDGE HALPERN REASONED THAT THE FDIA PROCEDURE, UNDER WHICH A
UNION APPEALED A DENIAL OF CERTAIN INFORMATION, DID NOT PRECLUDE THE
UNION ASSERTING A VIOLATION OF 19(A)(6) OF THE ORDER. I SUBSCRIBE TO
HIS REASONING AND AGREE THAT THE ISSUE TO BE LITIGATED HEREIN COULD NOT
HAVE BEEN RAISED ON AN APPEAL UNDER FDIA PROCEDURES. ACCORDINGLY, I
DENY THE INSTANCE TO DISMISS BASED ON THE AFOREMENTIONED GROUNDS.
IN RESISTING ITS ALLEGED OBLIGATION TO FURNISH THE CODES FOR THE
LEVELS BELOW THE POSITION OF ASSISTANT COMMISSIONER, RESPONDENT RAISES
SEVERAL ISSUES WORTHY OF SERIOUS CONSIDERATION.
(1) THE EMPLOYER MAINTAINS THAT IF IT REVEALS THE WORK LEVELS AND
THUS IDENTIFIES THE UNITS WITH THEIR ATTENDANT SCORES, THE COMPLAINANT
WILL BE ABLE TO ASCERTAIN WHO ARE THE SUPERVISORS OF SUCH UNITS.
MOREOVER, THE EMPLOYER ADVERTS TO THE FACT THAT THE UNION HAS, DURING
ITS NEGOTIATIONS AS WELL AS AT OTHER TIMES, UTTERED THREATS WHICH WERE
DIRECTED TOWARD THE SUPERVISORS OR MANAGERS. THUS, IF A PARTICULAR
UNIT'S SCORE DOES DISCLOSE A "MORALE" PROBLEM OR A LOW OPINION OF
"SUPERVISORY EFFECTIVENESS", THE UNION WOULD PUBLISH THERE RESULTS AND
DESIGNATE THESE SUPERVISORS AS "BAD" ONES. IN ADDITION, COMPLAINANT
CONCEDED IT WOULD USE THE SCORES AS A CLUB TO OBTAIN CONCESSIONS FROM
MANAGEMENT; THAT IT WOULD "SABOTAGE" THE RESULTS; AND THAT COMPLAINANT
WOULD GET THE EMPLOYER "WHERE IT HURTS". SUCH UTTERANCES, ARGUES
RESPONDENT, DISCLOSED BAD FAITH INTENTIONS ON THE PART OF THE UNION.
ACCORDINGLY, IT IS URGED THAT THE BARGAINING AGENT SHOWS A LACK OF GOOD
FAITH IN ITS REQUEST FOR THE DATA WHICH SHOULD MILITATE AGAINST THE
EMPLOYER'S OBLIGATION TO SUPPLY THE LOWER LEVEL IDENTITIES. IN
ADDITION, RESPONDENT INSISTS THAT FURNISHING SUCH DATA WOULD INVADE THE
SUPERVISOR'S RIGHT OF PRIVACY, AS ENUNCIATED BY THE SUPREME COURT OF THE
UNITED STATES IN DETROIT EDISON CO. V. NLRB, U.S. SUPREME COURT, NO.
77-968 (MARCH 5, 1979). IN VIEW OF THE UNION'S THREATS AND INTENTIONS
TO USE THE MAS RESULTS TO EMBARRASS MANAGERS, IT IS CLAIMED THAT THE
LOWER LEVEL IDENTITIES SHOULD BE KEPT CONFIDENTIAL SO AS TO PROTECT THE
SUPERVISORS WHO MIGHT BE SUBJECTED TO HARASSMENT.
ALTHOUGH RESPONDENT LAYS STRESS UPON THE DETROIT EDISON CASE, SUPRA,
I DO NOT CONSIDER IT APPOSITE OR CONTROLLING OF THE CASE AT BAR.
PROTECTION WAS AFFORDED THEREIN TO EMPLOYEES WHO TOOK APTITUDE TESTS FOR
THE POSITION OF INSTRUMENT MAN. UNLESS A PARTICULAR APPLICANT
CONSENTED, THE EMPLOYER WAS NOT OBLIGED TO TURNOVER TO THE UNION THE
TEST SCORES FOR SUCH INDIVIDUAL. THE COURT CONCLUDED THAT THE
PRESERVATION OF EMPLOYEE CONFIDENCE WAS WELL FOUNDED. THE RIGHT OF
PRIVACY WAS PARAMOUNT, IN THAT INSTANCE, TO THE POSSIBLE IMPAIRMENT OF
THE UNION'S FUNCTION IN PROCESSING A GRIEVANCE STEMMING FROM A DENIAL OF
THE POSITION TO AN APPLICANT.
THE SITUATION PREVAILING IN THE INSTANT CASE, IS MY OPINION, QUITE
DISTINGUISHABLE. COMPLAINANT HEREIN IS NOT SEEKING, AND DID NOT
REQUEST, THE NAMES OF THE SUPERVISORS IN EACH UNIT. THE FACT THAT IT
MIGHT BE ABLE TO ASCERTAIN THE IDENTITY OF SUCH MANAGERS DOES NOT CALL
FOR THE APPLICATION OF THE RATIONALE EXPRESSED IN THE CITED CASE. THE
SUPREME COURT LENT PROTECTION TO INDIVIDUALS WHO UNDERTOOK EXAMINATIONS
CONCERNING THEIR APTITUDES. SUCH EMPLOYEES COULD WELL BE DISTURBED IF
THE RESULTS, AND INFORMATION SET FORTH IN SUCH TESTS, WERE DISCLOSED TO
OTHERS. TO THAT EXTENT, SUCH DISCLOSURES WAS AN INVASION OF PRIVACY.
NOT SO HERE. THE SUPERVISORS DISCLOSED NO INFORMATION WHICH SHOULD BE
INSULATED AGAINST DISCLOSURE. THEY REVEALED NO CONFIDENTIAL DETAILS IN
RESPECT TO THEIR PERFORMANCE OR BACKGROUND WHICH MUST BE SHIELDED FROM
THE UNION. MOREOVER, EVEN THOUGH RESPONDENT FURNISHES THE
IDENTIFICATION OF THE LOWER LEVEL RESULTS, THERE IS NO ASSURANCE--
DESPITE THE UTTERANCES OF THE UNION-- THAT THE BARGAINING AGENT WILL
SEEK OUT THE NAMES OF THE RESPECTIVE SUPERVISORS AND TAKE STEPS TO
EMBARRASS THEM.
RESPONDENT ARGUES, HOWEVER, THAT THE UNION MANIFESTED ITS INTENT TO
MAKE THINGS DIFFICULT FOR THESE MANAGERS WHOSE UNIT SCORE RESULTS
REFLECT PROBLEMS WITH THEIR EMPLOYEES. SUCH MANIFESTATION, IT IS
AVERRED, SHOW A LACK OF GOOD FAITH AND JUSTIFY REFUSAL TO SUPPLY THE
DATA WHICH WOULD ENABLE COMPLAINANT TO UNDERTAKE SUCH ACTION UPON
ASCERTAINING THE IDENTITIES. IN SUPPORT OF THIS ARGUMENT THE EMPLOYER
RELIES UPON SHELL OIL CO., 457 F.2D 615(1972) WHERE THE REFUSAL TO
FURNISH NAMES AND ADDRESSES OF UNIT EMPLOYEES WAS JUSTIFIED IN VIEW OF
POSSIBLE HARASSMENT AGAINST THEM. NOTE IS TAKEN THAT IN THE CITED CASE
A STRIKE HAD ENSUED AND VIOLENCE WAS INFLICTED UPON EMPLOYEES. IT WAS
APPARENT TO THE COURT THAT A CLEAR AND PRESENT DANGER EXISTED WHICH
WARRANTED A REFUSAL TO TURNOVER THE INFORMATION REQUESTED. I AM NOT
CONVINCED THAT SUCH A DANGER PREVAILED IN THE INSTANT CASE. APART FROM
THE FACT THAT I DO NOT CONCLUDE THE PHYSICAL THE PHYSICAL SAFETY OF
SUPERVISORS WAS IN JEOPARDY, STATEMENTS BY FERNIS AND REMARKS IN
"SNOOPY" SEEM MORE AKIN TO TACTICS EMPLOYED BY A UNION DURING ITS
ORGANIZATIONAL CAMPAIGN, OR WHEN IT BECOMES INVOLVED IN LABOR DISPUTE
WITH MANAGEMENT. EVEN IF COMPLAINANT THREATENED TO PUBLISH THE "BAD
SUPERVISOR OF THE MONTH", THE UNION WAS ALWAYS AT LIBERTY TO DO SO
INDEPENDENTLY OF WHETHER THE INFORMATION SOUGHT HEREIN WAS IN FACT
SUPPLIED. ON BALANCE, I DEEM THE STATEMENTS BY THE UNION TO RESEMBLE
BARGAINING TACTICS WHICH, IN THEMSELVES, OFTEN ARE INFLAMMATORY IN
NATURE. IN THIS POSTURE, I REJECT RESPONDENT'S CONTENTIONS THAT IT IS
ENTITLED TO REFUSE THE INFORMATION ON THE GROUNDS OF PRIVACY OR LIKELY
HARM TO ITS SUPERVISORS.
(2) A PRIMARY ISSUE FOR DETERMINATION HEREIN IS WHETHER THE
COMPLAINANT IS ENTITLED TO THE MAS SURVEY, AS REQUESTED, IN ORDER TO
FULFILL ITS DUTY AS THE COLLECTIVE BARGAINING REPRESENTATIVE. ALTHOUGH
RESPONDENT FURNISHED THE DATA TO THE ASSISTANT COMMISSIONER'S LEVEL, IT
RESISTS SUPPLYING THE CODE OR IDENTITY FOR THE LOWER LEVELS ON THE
FURTHER GROUND THAT SUCH INFORMATION IS NOT NEEDED BY COMPLAINANT IN ITS
ROLE AS BARGAINING AGENT.
IT IS NOW WELL ESTABLISHED, IN BOTH THE PRIVATE AND PUBLIC SECTORS,
THAT AN EMPLOYER MUST FURNISH INFORMATION TO THE UNION REPRESENTING ITS
EMPLOYEES WHICH IS RELEVANT AND NECESSARY TO PROPER REPRESENTATION.
NLRB V WHITIN MACHINE WORKERS, 217 F.2D 593(C.A. 4), CERT. DENIED 349
U.S. 905; DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY
ADMINISTRATION, KANSAS CITY PAYMENT CENTER, BUREAU OF RETIREMENT AND
SURVIVORS INSURANCE, A/SLMR NO. 411. THE RIGHT TO SUCH INFORMATION
EXISTS NOT ONLY FOR NEGOTIATING AN AGREEMENT WITH THE EMPLOYER, BUT FOR
THE PURPOSE OF ADMINISTERING SUCH COLLECTIVE BARGAINING AGREEMENT. IN
EITHER INSTANCE THE EMPLOYER IS OBLIGED TO SUPPLY THE MATERIAL REQUESTED
TO FURTHER INTELLIGENT REPRESENTATION. MOREOVER, IN THE PRIVATE SECTOR,
AT LEAST, IT IS SUFFICIENT IF THE INFORMATION IS OF PROBABLE OR
POTENTIAL RELEVANCE TO GIVE RISE TO AN OBLIGATION BY THE EMPLOYER TO
PROVIDE IT.
COMPLAINANT HEREIN URGES THAT IN IDENTIFICATION OF THE UNIT LEVELS IS
NECESSARY AND RELEVANT TO INTELLIGENT BARGAINING. IT ASSERTS THAT ONCE
IT BECOMES KNOWN WHERE THE WEAKNESSES EXIST, IN RESPECT TO THE
RELATIONSHIPS BETWEEN SUPERVISORS AND EMPLOYEES, THE UNION WOULD BE ABLE
TO ALTER ITS BARGAINING DEMAND, E.G. REQUIRE MORE STEWARDS IN
TROUBLESOME AREAS. FURTHER, THE UNION DEEMS ITSELF AS A DISADVANTAGE
VIS A VIS MANAGEMENT IN BARGAINING SESSIONS SINCE IT DOES NOT KNOW
WHETHER THE DATA APPLIES TO UNIT OR NON-UNIT EMPLOYEES, PROFESSIONAL OR
NON-PROFESSIONAL, PERMANENT OR SEASONAL, LONG-TIME OR SHORT-TIME
EMPLOYEES. THUS, COMPLAINANT INSISTS THE SANITIZED RESULTS FURNISHED IT
DO NOT SUFFICE FOR STRATEGY MEETINGS, NEGOTIATIONS AND OTHER
REPRESENTATIONAL DUTIES.
WHILE NOT FREE FROM DOUBT, I REJECT THE UNION'S ARGUMENT IN THIS
RESPECT. THE MAS SURVEY WAS ESSENTIALLY A QUESTIONNAIRE DESIGNED TO
GATHER INFORMATION RELATING TO SUBJECTIVE OPINIONS OF EMPLOYEES. IT IS
TRUE THE DATA WOULD HOPEFULLY ENABLE SUPERVISORS TO UTILIZE THEIR HUMAN
RESOURCES IN BETTER FASHION, BUT THE SURVEY ITSELF DID NO MORE THAN
YIELD ATTITUDES OF INDIVIDUALS TOWARDS MANAGEMENT, THE WORKING
ENVIRONMENT AND ATTENDANT CONDITIONS OF EMPLOYMENT. I CONSTRUE THIS
TYPE DATA TO BE DIFFERENT IN NATURE FROM FACTUAL INFORMATION GOVERNED BY
AN EMPLOYER RE WAGES OR EXISTING CONDITIONS. STATISTICAL REPORTS RE
WORK PERFORMANCE COULD, IN MY OPINION, CERTAINLY BE RELEVANT AND
NECESSARY IN ADMINISTERING A CONTRACT, FILING GRIEVANCES, OR BARGAINING
WITH AN EMPLOYER. HOWEVER, I VIEW THE DATA ACQUIRED BY THE SURVEY
HEREIN TO BE DISTINGUISHABLE FROM SUCH STATISTICS. IT DOES NOT REFLECT
PERFORMANCE OF EMPLOYEES, QUALITATIVELY OR QUANTITATIVELY, NOR DOES IT
DEAL WITH FACTS RE SUCH ITEMS AS SECURITY, PROMOTIONS, UPGRADES,
VACATIONS, OR OTHER SUCH CONDITIONS OF EMPLOYMENT. MAS WAS INTENDED FOR
THE GUIDANCE /14/ OF UNIT SUPERVISORS, AND TO BE USED AT THEIR
DISCRETION, IN IMPROVING RELATIONSHIPS WITH EMPLOYEES. AS A MANAGERIAL
TOOL THE SURVEY YIELDED NO STATISTICAL DATA WHICH COULD INURE TO THE
SINGLE ADVANTAGE OF MANAGEMENT IN ITS BARGAINING WITH COMPLAINANT.
IN INTERNAL REVENUE SERVICE, CHICAGO DISTRICT OFFICE, A/SLMR NO.
1004 THE UNION SOUGHT A STATISTICAL ANALYSIS OF SUPERVISORY EVALUATIONS
PREPARED IN RESPECT TO PROMOTIONS. THE INFORMATION WAS REQUESTED IN
CONNECTION WITH A GRIEVANCE FILED ON BEHALF OF AN EMPLOYEE NOT SELECTED
FOR PROMOTION. THE STATISTICAL ANALYSIS DID NOT DEAL WITH THE RANKING
PANEL'S INTERPRETATION THEREOF AND THE PANEL DID NOT RELY ON THE
ANALYSIS IN MAKING ITS SELECTIONS. ACCORDINGLY, THE ASSISTANT SECRETARY
HELD THE INFORMATION CONTAINED THEREIN WAS NOT NECESSARY TO PROCESS THE
GRIEVANCE. ALTHOUGH I RECOGNIZE SUCH FACTUAL SITUATION IS DISSIMILAR TO
THE CASE AT BAR, IN EACH INSTANCE THE STATISTICS WERE PREDICATED ON
EVALUATIONS WHICH WERE NOT ESSENTIAL TO INTELLIGENT BARGAINING. IN
TRUTH, THE MAS SURVEY WAS AN EVALUATION BY EMPLOYEES OF THEIR WORKING
CONDITIONS, MORALE, AND INTERCHANGE WITH THE SUPERVISORS. I DO NOT
AGREE THAT SUCH EVALUATIONS WERE RELEVANT OR NECESSARY TO ENABLE
COMPLAINANT TO FULFILL ITS DUTIES AS BARGAINING AGENT. OPINIONS OF
EMPLOYEES-- WHICH COULD WELL HAVE BEEN ASCERTAINED DIRECTLY BY THE UNION
IN ANY EVENT-- ARE SCARCELY SIMILAR TO PERFORMANCE DATA WHICH
COMPLAINANT REQUIRES TO BARGAIN WITH MANAGEMENT RE CONDITIONS OF
EMPLOYMENT. A STATISTICAL ANALYSIS FOUNDED ON SUCH A CONCEPTUAL SURVEY
MIGHT BE INTERESTING, BUT I CONCLUDE IT IS NOT NECESSARY FOR PROPER
REPRESENTATION. THEREFORE, I FIND THAT RESPONDENT'S FAILURE TO SUPPLY
THE UNSANITIZED RESULTS OF THE LOWER LEVELS WAS NOT A REFUSAL TO BARGAIN
AND DID NOT VIOLATE SECTION 19(A)(1) AND (6) OF THE ORDER. /15/
ACCORDINGLY, AND IN VIEW OF THE FOREGOING, THE COMPLAINT IS HEREBY
DISMISSED.
WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DATED: 23 APR 1979
WASHINGTON, D.C.
/1/ THE COMPLAINANT FILED UNTIMELY EXCEPTIONS WHICH WERE NOT
CONSIDERED.
/2/ CONTRARY TO THE FINDINGS OF THE ADMINISTRATIVE LAW JUDGE AT
FOOTNOTE 2 OF HIS RECOMMENDED DECISION AND ORDER, THE RECORD REVEALS
THAT THE COMPLAINANT ASKED FOR THE NAMES OF MANAGERS OR SUPERVISORS
BELOW THE ASSISTANT COMMISSIONERS' LEVEL. THIS INADVERTENT ERROR,
HOWEVER, HAS HAD NO EFFECT UPON THE OUTCOME IN THIS CASE.
/3/ IN VIEW OF THE DISPOSITION OF THIS CASE, THE AUTHORITY FINDS IT
UNNECESSARY TO PASS UPON THE CONCLUSIONS OF THE ADMINISTRATIVE LAW JUDGE
WITH RESPECT TO THE RESPONDENT'S CONCERN FOR THE PRIVACY OF ITS
SUPERVISORS AND THE BAD FAITH ALLEGEDLY DISPLAYED BY THE COMPLAINANT
DURING THE BARGAINING SESSIONS INVOLVED HEREIN.
/4/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR THE APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR
THE RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD
ARISEN UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
/5/ MEMBER LEON B. APPLEWHAITE DID NOT PARTICIPATE IN THE PRESENT
CASE, WHICH HAD BEEN PROCESSED PRIOR TO HIS CONFIRMATION BY THE UNITED
STATES SENATE AS A MEMBER OF THE AUTHORITY.
/6/ CERTAIN PROCEDURAL DEFENSES, WHICH WERE RAISED BY RESPONDENT AS
ITS RESPONSE, WERE REVIEWED BEFORE THE UNDERSIGNED AND WILL BE TREATED
HEREIN.
/7/ WHILE I FIND THAT COMPLAINANT DID NOT ASK FOR THE NAMES OF THE
MANAGERS OR SUPERVISORS BELOW THE ASSISTANT COMMISSIONER'S LEVEL, THE
RECORD REFLECTS THAT IF THE RESULTS FOR EACH UNIT OR LEVEL WERE
FURNISHED, THE UNION COULD ASCERTAIN THE IDENTITY OF ALL UNIT
SUPERVISORS.
/8/ THE QUESTIONS IN MAS, WHICH RELATES TO THE 19 FACTORS, PROVIDE
SEVERAL ANSWERS CHARACTERIZING EACH PARTICULAR WORK ENVIRONMENT, AND THE
EMPLOYEE MUST SELECT THAT RESPONSE WHICH HE DEEMS APPLICABLE THERETO.
/9/ ONLY TWO SUPERVISORS DID IN FACT HOLD CONFERENCES WITH THEIR
EMPLOYEES. THE RECORD REFLECTS THAT OTHERS WERE RELUCTANT TO CONDUCT
MEETINGS WITH THEIR EMPLOYEES IN VIEW OF THE THREATS MADE BY
COMPLAINANT.
/10/ HE ALSO REQUESTED DATA RE AN EEO SURVEY WHICH WAS LATER SUPPLIED
TO THE UNION.
/11/ SOME DATA CONCERNING THE PREVIOUS SURVEY WAS TRANSMITTED
THEREWITH TO THE UNION.
/12/ WITHOUT THIS SANITIZATION, COMPLAINANT WOULD HAVE BEEN ABLE TO
OBTAIN THE IDENTITY OF ABOUT 135-140 SUPERVISORS AT THE LOWER LEVEL.
/13/ AT THE HEARING RESPONDENT'S MOTION TO DISMISS BASED ON THESE
GROUNDS WAS DENIED BY THE UNDERSIGNED WITH LEAVE TO RENEW IT THEREAFTER.
RESPONDENT HAS RENEWED THE SAME MOTION IN ITS POST-HEARING BRIEF.
/14/ RESPONDENT ARGUES THAT UNDER 7114(B)(4)(C) OF THE NEW STATUTE
THE DUTY TO BARGAIN EXCLUDES FURNISHING DATA WHICH CONSTITUTE GUIDANCE,
ADVICE, COUNSEL OR TRAINING FOR MANAGEMENT OFFICIALS OR SUPERVISORS.
RESPONDENT MAY WELL BE RELIEVED OF TURNING OVER THE SURVEY RESULTS OF
MAS UNDER THE NEW ACT. HOWEVER, ITS OBLIGATION TO FURNISH THE
INFORMATION IN JUNE, 1978 MUST BE GOVERNED UNDER THE ORDER AND THE
APPROPRIATE CASE LAW EXISTENT PRIOR TO THE EFFECTIVE DATE OF THE SAID
STATUTE.
/15/ THIS DECISION DOES NOT ADDRESS THE QUESTION AS TO WHETHER
RESPONDENT COULD UNILATERALLY CONDUCT SUCH SURVEY. NOTIFICATION TO, AND
CONSENT BY, THE UNION TOOK PLACE AND, IN ANY EVENT, NO SUCH ALLEGATION
WAS MADE IN THE COMPLAINT.