18:0173(25)CA - EEOC, Washington, DC and AFGE Local 3230 -- 1985 FLRAdec CA



[ v18 p173 ]
18:0173(25)CA
The decision of the Authority follows:


 18 FLRA No. 25
 
 U.S. EQUAL EMPLOYMENT OPPORTUNITY 
 COMMISSION, WASHINGTON, D.C.,
 Respondent
 
 and 
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 3230, AFL-CIO 
 Charging Party
 
                                            Case No. 9-CA-30362
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondent had engaged in
 certain unfair labor practices as alleged in the complaint, and
 recommending that it be ordered to cease and desist therefrom and take
 certain affirmative action.  Thereafter, the Respondent filed exceptions
 to the Judge's Decision and a supporting brief.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings and conclusions, and her recommended Order as modified
 below.
 
    The Authority, in agreement with the Judge, finds that the
 Respondent's refusal to furnish the Charging Party with certain
 necessary data within the meaning of section 7114(b)(4) of the Statute,
 requested in connection with a grievance on behalf of a unit employee
 filed under the parties' negotiated grievance procedure, constituted a
 violation of section 7116(a)(1), (5) and (8) of the Statute.  /1/
 However, contrary to the Judge, the Authority finds that the Judge's
 recommended remedy for the violation found herein is inappropriate to
 the extent that it would require rescission of the employee's two-day
 suspension and restoration of any lost wages and benefits.  Thus an
 order, requested by the General Counsel, directing the Respondent to
 furnish the documents and material sought by the Charging Party and to
 post notices will fully effectuate the purposes and policies of the
 Statute.  In this regard, it is noted that there is no allegation in the
 complaint that the suspension was wrongful, but only that the Union was
 denied information necessary to its presentation of a defense to the
 employee's proposed suspension.  Moreover, the Judge did not find, and
 the record does not establish, that, but for the Respondent's unlawful
 refusal to furnish the necessary data requested by the Charging Party,
 the affected employee would not have suffered the loss of pay and
 benefits in question.  See, e.g., Department of the Air Force, Air Force
 Systems Command, Electronic Systems Division, 14 FLRA 390 (1984);
 Social Security Administration, 16 FLRA No. 148 (1984).
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, it is
 hereby ordered that the U.S. Equal Employment Opportunity Commission,
 Washington, D.C., shall:
 
    1.  Cease and desist from:
 
    (a) Refusing or failing to furnish, upon request by the American
 Federation of Government Employees, Local 3230, AFL-CIO, the data
 previously requested in connection with a unit employee's grievance
 which is necessary to enable Local 3230 to discharge its obligation as
 the agent of the exclusive representative to represent the interests of
 all employees in the bargaining unit.
 
    (b) 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:
 
    (a) Upon request, furnish to the American Federation of Government
 Employees, Local 3230, AFL-CIO, the data previously requested in
 connection with a unit employee's grievance which is necessary to enable
 Local 3230 to discharge its obligation as the agent for the exclusive
 representative to represent the interests of all employees in the
 bargaining unit.
 
    (b) Post at its Seattle District Office 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 District Manager, or
 a designee, 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 insure that such Notices are not
 altered, defaced, or covered by any other material.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region IX, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply herewith.  
 
 Issued, Washington, D.C., May 24, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT refuse or fail to furnish, upon request by the American
 Federation of Government Employees, Local 3230, AFL-CIO, the data
 previously requested in connection with a unit employee's grievance
 which is necessary to enable Local 3230 to discharge its obligation as
 the agent of the exclusive representative to represent the interests of
 all employees in the bargaining unit.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL, upon request, furnish to Local 3230, the data previously
 requested in connection with a unit employee's grievance which is
 necessary to enable Local 3230 to discharge its obligation as the agent
 of the exclusive representative to represent the interests of all
 employees in the bargaining unit.
                                       (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 its provisions, they may communicate directly with the Regional
 Director, Region IX, Federal Labor Relations Authority, whose address
 is:  530 Bush Street, Room 542, San Francisco, California 94108, and
 whose telephone number is:  (415) 556-8106.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    William L. Harris,
    Counsel for Respondent
 
    Arthur J. Joyner,
    Counsel for Charging Party
 
    Patricia J. Howze,
    Counsel for the General Counsel
    Federal Labor Relations Authority
 
    Before:  ISABELLE R. CAPPELLO, Administrative Law Judge
 
       Administrative Law Judge
 
                                 DECISION
 
    This is a proceeding under Title VII of the Civil Service Reform Act
 of 1978, Pub. L. No. 95-454, 92 Stat. 1192, 5 U.S.C. 7101 et seq.
 (1982), commonly known as the Federal Service Labor-Management Relations
 Statute, and hereinafter referred to as the "Statute," and the rules and
 regulations issued thereunder and published at 5 CFR 2411 et seq.
 
    On May 2, 1983, the Charging Party (also referred to herein as the
 "Union") filed, with the Federal Labor Relations Authority
 ("Authority"), a charge of an unfair labor practice against the
 Respondent, the Equal Employment Opportunity Commission ("EEOC"),
 Seattle District Office ("SEDO").  The charge alleges a failure and
 refusal to provide the Union with requested information.  On August 1,
 1983, an amended charge was filed, naming the statutory provisions which
 has been violated.  On August 22, 1983, a second amended charge was
 filed, naming EEOC, Washington, D.C., as the Respondent and a different
 person at EEOC as the agency person to contact.
 
    The General Counsel of the Authority investigated the charges and, in
 a complaint served on August 22, 1983, charges Respondent with
 violations of Sections 7114(b)(4) and 7116(a)(1), (5), and (8) of the
 Statute.  /2/ The alleged violative act is the failure and refusal to
 furnish certain information for use in connection with the Union's
 representation of a bargaining-unit employee employed at Respondent's
 SEDO.
 
    In its answer to the complaint, Respondent admits that the District
 Director, SEDO, denied some of the information requested.
 
    On December 6, 1983, in Seattle, Washington, a hearing was held at
 which all the parties appeared, presented evidence, and examined
 witnesses.  Briefs were filed by the Respondent, on January 3, 1984, and
 by the General Counsel, on January 4.
 
    Based upon the record made in this proceeding, my observation of the
 demeanor of the witnesses, the oral arguments at the conclusion of the
 testimony, and the briefs, I enter the following findings of fact and
 conclusions of law, and recommended the entry of the following order.
 
                           Findings of Fact /3/
 
    1.  At all times material herein, Respondent has been, and is, an
 agency within the meaning of Section 7103(a)(3) of the Statute.
 
    2a.  At all times material herein, the National Council of EEOC
 Locals No. 216, American Federation of Government Employees, AFL-CIO
 ("NCAFGE"), has been, and is, a labor organization within the meaning of
 Section 7103(a)(4) of the Statute.
 
    b.  At all times material herein, Local 3230 has been an affiliate of
 NCAFGE and an agent of NCAFGE for purposes of representing employees at
 SEDO, and has been, and is, a part of a labor organization within the
 meaning of Section 7103(a)(4) of the Statute.
 
    c.  At all times material herein, NCAFGE has been certified as the
 exclusive representative of employees in an appropriate unit of
 employees of Respondent.
 
    d.  At all times material herein, Arthur E. Joyner has been the
 steward of the Union at SEDO and, in such capacity, has been an agent of
 the Union.
 
    3.  At all times material herein, Donald W. Muse has been the
 District Director of SEDO and, in such capacity, has been a supervisor
 and/or management official within the meaning of Section 7103(a)(10)
 and/or (11) of the Statute, and an agent of Respondent.
 
    4a.  At all times material herein, NCAFGE and Respondent have been
 parties to a collective bargaining agreement, the terms of which
 provide, inter alia, for the local administration of such contract,
 including but not limited to the investigation and processing of
 grievances under the negotiated grievance procedure at the District
 Office level, where appropriate.
 
    b.  The agreement contains procedures to be followed in the event a
 bargaining-unit employee is faced with a proposed adverse action,
 including representation by the Union.  See Jt 1, Article 24, pages
 40-44.
 
    c.  Article 24(h) provides that a bargaining-unit employee, faced
 with a proposed adverse action, may respond and offer evidence to
 controvert or lessen the seriousness of the charge.  See Jt 1, page 44.
 
    d.  Article 23(e) of the agreement provides that:
 
          All disciplinary actions shall be taken at the earliest stage
       needed to correct the deficiencies that have occurred.  Before
       issuance of action, the EMPLOYER shall ensure that all extenuating
       circumstances have been carefully considered and evaluated.  Like
       penalties should be imposed for like offenses.  To accomplish
       this, the EMPLOYER shall be as consistent as possible when
       deciding what penalty is appropriate, considering not only the
       gravity of the offense, but such other matters as the mitigating
       circumstances, the frequency of the offense, and whether the
       action accords with justice in the particular situation.
 
 See Jt 1, p. 38.
 
    5.  On February 11, Ethel Rocco, Chief, Operations Services Unit,
 "OSU"), issued a Notice of Proposed Suspension to Tora Roksvog,
 Administrative Clerk.  The proposed suspension was for 30 days, and
 concerned Ms. Roksvog's allegedly "poor performance and conduct
 (disobedience of instructions, concealment of public records and
 deceitful behavior) . . . ." See GC 3, page 1.  The Notice recited the
 fact that, on January 7, in a storeroom, an employee had discovered two
 boxes, labeled "Tora's-- Do Not Remove," which contained "many original
 purchase orders, invoices, delivery receipts, travel vouchers, requests
 for driver's licenses, various correspondence, inventories, ID cards,
 etc." Ibid.  Examples were given, the first being a travel voucher dated
 August 8, 1981, for which the employee remained uncompensated.  See GC
 3, page 2.  The Notice recited the fact that these documents were
 initiated and/or received by Tora Roksvog over the period she had
 worked, as a Clerk, in OSU from January 19, 1981 to May 24, 1982.  The
 Notice alluded to frequent staff meetings, during this period, at which
 problems could have been discussed.  It referred to her "workload
 stress" during this period.  See GC 3, page 6.  It referred to another
 employee being assigned to several of Ms. Roksvog's assignments "in an
 effort to get the job done." I0id.
 
    6.  Ms. Roksvog sought representation from the Union in responding to
 the proposed adverse action and, on February 23, a union steward, Arthur
 Joyner, requested the following information from SEDO Manager, Donald
 Muse:
 
          (1) Copies of any and all "assignment sheets" maintained by
       this office which record or otherwise reflect the assignments of
       Ms. Roksvog for the period of January 19, 1981 to May 24, 1982.
 
          (2) Copies of any and all notes, memos, letters or other
       documents by whomever recorded or maintained which record or
       otherwise reflect any and all supervisory admonishments,
       discipline, awards or other performance related comments regarding
       the performance of Ms. Roksvog for the period January 19, 1981 to
       May 24, 1982.
 
          (3) Copies of any and all records, memos, or other documents,
       by whomever recorded or maintained which record or otherwise
       reflects the names and periods of assignment, of person (sic)
       assigned to the Operations Services Unit during the period of
       January 19, 1981 to May 24, 1982.
 
          (4) Copies of any and all inventories, notes, memos or other
       documents, by whomever recorded or maintained which record or
       reflect the contents of the two boxes marked "Tora's Do Not
       Remove" found by Reginald Hodges in the SEDO office storeroom on
       1/7/83.
 
          (5) Copies of any and all notes, memos, letters or other
       documents by whomever recorded or maintained which record, concur
       or reflect any and all supervisor actions taken by SEDO management
       to redress, correct or otherwise amend the mistakes, omissions or
       other administrative deficiencies regarding the paperwork or
       administrative documents and submissions alleged delineated or
       stated in the notice of proposed suspension issued to Ms. Roksvog
       on or about Feb. 11, 1983.
 
 See GC 4.  The information was requested as to Ms.  Roksvog's proposed
 suspension, pursuant to 5 U.S.C. 7114(b)(4) and the parties' collective
 bargaining agreement.  Mr. Muse received the request on February 24.
 
    7.  On February 25, Sandra A. Cross, Personnel Specialist, responded
 to the Union in regard to the request.  The response granted items 2 and
 4 of the request, and attached the granted documents.  The response
 stated:
 
          Since the Operations Services Chief is on leave until Tuesday,
       March 1, 1983, I am deferring (1), (3) and (5) for reply upon her
       return.  Also, it is suggested that you furnish, in writing, the
       relevance of request (1), (3) and (5) since you have received a
       copy of the adverse action file, which was the sole
       source/reference for the proposed action.
 
 See GC 5.
 
    8.  Upon receiving the above response to the Union's request, Mr.
 Joyner met with Ms. Cross, on February 25, to inquire as to why he was
 not getting all the information.  Ms. Cross stated that she lacked the
 power to make the final determination, and expressed "some concern about
 the relevancy" (TR 32).  Mr. Joyner replied that the issue of relevancy
 had been raised before, in his investigations of grievances, and that:
 "Most of the items were taken directly from terms or things tat had been
 noted in the proposed suspension, so that to (him) it was relevant on
 the face of it." See TR 32.  /4/
 
    9.  On March 2, Mr. Muse advised the Union in writing that its
 request for information contained in paragraphs Nos. (1), (3) and (5)
 was denied as not being relevant to the adverse action proposed.  The
 memorandum further stated:  "If you wish to state the relevancy of the
 information requested and how it is necessary to the employee's
 response, I will reconsider your request." See GC 7.
 
    10a.  Upon receipt of the response from Mr. Muse, Mr. Joyner, on
 March 2 or 3, went to Mr. Muse's office.  Mr. Muse recalls this meeting
 and testified that there was "agreement and disagreement" with Mr.
 Joyner as to what took place (TR 59).  Mr. Muse testified that Tora
 Roksvog was discussed and that he had conceded to Mr. Joyner, that she
 had been a "very good employee" (TR 59), with "a lot of work to do," and
 that she had been "under stress, personal and business stress." See TR
 60.  Mr. Muse denied that Mr. Joyner made any attempt to furnish the
 necessity or relevancy of the information being denied and testified
 that, instead, Mr. Joyner adhered to "his longstanding position" that he
 did not have to furnish this (TR 60).  Mr. Muse conceded that he
 provided item 1, in the Union's request for information, after talking
 to Mr. Joyner.
 
    b.  Mr. Joyner testified that, during this meeting, he and Mr. Muse
 talked generally about the problem of Ms. Roksvog.  He also testified
 about the request for information and that:
 
          . . . we went through the items one by one, and I told him that
       I needed item No. 1 because there was some referral in the
       proposed notice of suspension on assignments, that I needed to
       know what Tora's assignments were, that I had been told by both
       Tora and other persons that Ms. Rocco kept track of the
       assignments that she gave people in her unit.
 
          . . . I also told him that I needed No. (3) to determine the
       workload in the unit at that time.  That . . . Tora had been doing
       a lot of work in the unit;  that the unit had been understaffed.
       She was responsible for a lot.  That she probably did not have the
       opportunity to complete it.  And we also talked about No. 5, as
       far as discipline, or as a requirement for graduated discipline.
       That was a proposal for 30-day suspension, which was really
       agregious (sic) if the employee had never been disciplined before.
 
 See TR 33-34.  He also testified that he told Mr. Muse that he needed
 Item 3 in order "to talk to people." (TR 46).  He testified that there
 are four or five people normally assigned to OSU who "move in and out,
 as work dictates." See TR 38.
 
    c.  Mr. Joyner appeared to be surer of his facts and to have a better
 recollection of events than Mr. Muse and, where their testimony is in
 conflict, I credit that of Mr. Joyner.  Specifically, I credit Mr.
 Joyner's testimony as set forth in finding 10b, above.  Mr. Joyner's
 testimony, that he did explain why he needed the requested information,
 is bolstered by the fact that, following the discussion, Mr. Muse was
 persuaded to furnish one of the previously-denied items, item 1.
 
    11a.  On March 5, during the "oral presentation" of Ms. Roksvog's
 case (TR 36), Mr. Joyner testified that he again discussed his request
 for information with Mr. Muse.  Mr. Joyner testified that he told Mr.
 Muse that:
 
          . . . I wanted to show, by item 3, that first of all, Tora was
       overworked, that she did not have an opportunity to perform all
       this work that had later been found in the box, that the
       supervisor had never performed her function of monitoring the
       work, knowing what assignments the employees got, making sure that
       Ms. Roksvog followed through on assignments. And that I needed to
       know who was working in the unit, how much of the work Tora
       actually was charged with doing, and how much of it that she
       actually had time to do.
 
          There was substantial overtime authorized at that time for some
       of this work to be done, and as far as the fifth one, again, we
       talked about the fact that there was a necessity for graduated
       discipline.  That I couldn't show what kind of discipline, that
       everything I had heard about Tora, both from management and from
       bargaining unit, was that she was an exemplary employee and that a
       30-day suspension, or any suspension at all, was agregious (sic),
       given that the contract spoke in terms of step discipline.  And
       also the FPM spoke of step discipline.
 
 See TR 36-37.
 
    Mr. Joyner testified that Mr. Muse responded that he did not want to
 hear about workload, as it was not relevant and he was not going to deal
 with it.
 
    b.  Mr. Muse, in his testimony, conceded that Mr. Joyner renewed his
 request for the information, at the beginning of the oral presentation.
 See TR 63.  Mr. Muse testified that he "reiterated" to Mr. Joyner that:
 
          . . . (he) would concede that the employee was an exemplary
       employee before and after;  (he) reiterated that (they) were
       dealing with not performance, but with conduct;  and that (he)
       conceded also that she was under stress, and that those items that
       (Mr. Joyner) indicated that he needed, were already conceded to by
       (Mr. Muse) and that it wasn't necessary to reiterate them again.
 
 See TR 63-64.  Mr. Muse testified that Mr. Joyner did not specifically
 advise him of the relevancy of the items being denied.
 
    c.  For the reasons stated in finding 10c, I credit the testimony of
 Mr. Joyner over that of Mr. Muse, where they are in conflict.
 Specifically, I credit the testimony of Mr. Joyner as set forth in
 finding 11a, above.
 
    12a.  At the hearing, it was established, through the testimony of
 Mr. Joyner, that the information sought in item 3 of the request for
 information was needed so that he could "talk to the individuals that
 were involved to see if they had any information that would be useful"
 and "to assess the workload," in order to seek mitigation of the
 penalty.  (TR 39).
 
    b.  He also established, at the hearing, as to item 5 of the request,
 that it "had to do with corrective action" and "mitigation of the
 offense," that is, the "necessity for management to engage in step
 discipline." See TR 40.
 
    13.  On March 11, the Union and Ms. Roksvog, presented to Mr. Muse
 their written response to the February 11 Notice of Proposed Suspension.
  See GC 8.  In the response, note was made that:  "Due to management's
 refusal to furnish information on the staffing of that unit (OSU) during
 the relevant time period, (the Union and Ms. Roksvog) are unable to
 state with certainty what additional duties Ms. Roksvog was required to
 assume due to staff shortages, transfers, details or reassignments." See
 GC 8, page 1.  One defense raised was that Ms. Roksvog's supervisor
 should have been charged, rather than Ms. Roksvog, because she failed
 "to adequately monitor the employee" whom she had placed in a stressful
 situation (GC 8, pages 2 and 6).  The written response refers to the
 fact that, during the period from January 19, 1981 to May 24, 1982, Ms.
 Roksvog had been rated as an exceptional employee by the supervisor
 proposing the adverse action;  had received special achievement cash
 awards;  had worked extensive overtime;  had suffered extreme stress,
 while working in OSU, and was undergoing medical and psychiatric
 treatment involving drugs and sedatives;  had been transferred to work
 in another unit;  had boxed and took with her a number of documents
 which required further work, on instructions of her OSU supervisor;
 that the boxes were moved from her office (while she was away on a
 detail) and placed in a storeroom to which she did not have access;  and
 that her former supervisor in OSU never inquired about the documents in
 the boxes, despite the receipt by the supervisor of numerous complaints
 and inquiries regarding the documents.  See GC 8, pages 1-2.  The
 response also refers to the fact that Ms. Roksvog's current supervisor
 and manager have stated that her "performance has been and remains
 excellent." See GC 8, page 3.
 
    14a.  On March 16, Mr. Muse, in a written memorandum, notified Ms.
 Roksvog that she would be suspended from duty, without pay, for two
 calendar days-- March 31 and April 1.  See GC 9, page 2.  He found her
 guilty of concealing public records and disobeying instructions.  See GC
 9, page 1.  In considering this "final decision" (TR 64), Mr. Muse took
 into consideration the "workload" of Ms. Roksvog, "as far as penalty was
 concerned," but not as to whether she was "guilty or not guilty" of the
 "allegations." See TR 68 and also TR 69 and 70.  The memorandum referred
 to two statements "voluntarily submitted by two OSU employees regarding
 procedures in the unit." (GC 9, page 1).
 
    b.  Mr. Muse was "the deciding official" in the adverse action
 against Ms. Roksvog (TR 73).  His decision has not been appealed, or
 made the subject of a grievance.
 
    c.  Mr. Muse acknowledged that there are several gradings of
 punishment less than a suspension.  See TR 80, Article 23 (3) (finding
 4d, above) and FPM Chapter 751-3.  /5/
 
    15.  In August or September, in preparing for the hearing in this
 case, a search was conducted for the information sought in item 5 of the
 Union's request for information.  No documents were found.  The Union
 learned of this shortly before the hearing.
 
                        Discussion and Conclusions
 
    Aside from the question of an appropriate remedy, the only issue
 presented in this case is whether certain information requested by the
 Union was "necessary and relevant" to its representation of a
 bargaining-unit employee in an adverse action taken against her by
 management.  See GC Br 6, R Br 6 and TR 88-89.  The preponderance of the
 evidence /6/ establishes that the data requested here was necessary and
 relevant, within the meaning of Section 7114 of the Statute (quoted in
 footnote 2, above).  Failure to furnish it, therefore, constituted an
 unfair labor practice, as alleged in the complaint.
 
    Section 7114(b)(4) of the Statute expressly grants the right, to an
 exclusive representative, to data which is "necessary for the full and
 proper discussion, understanding, and negotiation of subjects within the
 scope of collective bargaining." See footnote 2, above, for the full
 quotation.  Falling within this scope is the union representation of a
 bargaining unit employee prior to management's consideration of a
 proposed adverse action, as provided for by the parties' negotiated
 agreement.  See, e.g., Internal Revenue Service, 9 FLRA No. 57, 9 FLRA
 480, 481 (1982).
 
    The necessity of item 3, set forth in finding 6, above, seems
 obvious, on its fact. It sought the names of witnesses who served with
 the employee charged with "poor performance and conduct," and who could
 provide useful information to the Union in defending the employee.  As
 explained by the union steward, at the hearing, and to the deciding
 official prior to the final denial of the request, this data would serve
 another purpose as well, namely to show that the section in which the
 employee worked was understaffed and the employee overworked, evidence
 to which the employee was entitled, under the collective bargaining
 agreement, in that it might serve to lessen the seriousness of the
 charge and mitigate the penalty.
 
    The necessity of item 5, set forth in finding 6, above, was also
 established.  It sought documentation of what actions the employee's
 supervisor had taken in regard to paperwork found in the boxes, some of
 which had required action for over two years, at the time the boxes were
 discovered.  The union steward testified at the hearing, and explained
 to the deciding official prior to the final denial of the request, that
 he needed this to address the requirement of graduated discipline.  The
 union steward defended the adverse action on the ground, partly, that
 the supervisor was at fault, in failing "to adequately monitor the
 employee" whom she had placed in a stressful situation.  Under Article
 23(e) of the agreement, failure of proper supervision of an employee
 under stress could constitute mitigating circumstances which could
 moderate the penalty proposed.
 
    Had the union steward been told, prior to oral hearing on the matter
 before Mr. Muse, and his written response, that there were no documents
 showing that the supervisor of Ms. Roksvog had done anything to redress,
 correct, or otherwise amend the mistakes charged to Ms. Roksvog, he
 could have argued more persuasively that mitigating circumstances
 existed to justify a less severe penalty for an otherwise concededly
 exemplary, overworked employee.
 
                                  Remedy
 
    The General Counsel seeks a cease-and-desist order, an order to make
 available to the Union information relevant to the processing of a
 grievance or adverse action, and a posting of a notice at SEDO.  See
 Appendix A to the General Counsel's brief.  All of the above is
 appropriate relief, under the circumstances of this case, and will be
 recommended.
 
    The Union also seeks to have the suspension of Ms. Roksvog expunged
 from her records, and made whole for the loss of pay for two days.  See
 TR 21-22 and 87-88.  This relief is also appropriate.
 
    The deciding official of Respondent, in this case, denied to the
 union steward a list of potential witnesses, who could have provided
 helpful information with which to defend against the serious charges
 made against Ms. Roksvog.  Respondent, itself, relief on statements
 taken from two co-workers of Ms. Roksvog.  There may have been other
 co-workers who could have, for example, provided information that other
 employees in OSU disobeyed instructions, on occasion-- one of the
 charges upon which Ms. Roksvog was adjudged to be guilty.  With this
 lead, the Union might have discovered that these employees were verbally
 chastised, and did not suffer a suspension.  Under the contract's
 provision for "like penalties . . . for like offenses" (finding 4d,
 above), such evidence might have mitigated the penalty assessed against
 Ms. Roksvog.  Now, of course, so much time has passed since the period
 involved (January 19, 1981 to May 24, 1982), that the memories of
 witnesses would have became dim, and their assistance to Ms. Roksvog of
 doubtful help.
 
    Respondent's agent, in denying the request for all the information
 sought, may have had some honest doubt as to the necessity of some of
 the data, but not as to that which would have given the Union access to
 potential witnesses.
 
    Here, we have an admittedly exemplary and overworked employee
 suffering a harsh penalty, suspension, when a lesser penalty might have
 been imposed, had Respondent's agent shared with her Union
 representative the names of co-workers during the period involved.
 Co-workers in OSU were not a stable group, but moved in and out, as work
 needs dictated.  Therefore, Ms. Roksvog, suffering from stress and on
 sedation while in OSU, could not be expected to rely upon her own memory
 as to just who else worked with her in OSU, when faced with a charge, on
 February 11, 1983, concerning her work in OSU during the period from
 January 19, 1981 to May 24, 1982.
 
    The Statute grants broad authority to remedy unfair labor practices,
 including the ordering of back pay.  See 5 U.S.C. 7118(7).  Such relief
 will be recommended along with expunging from the records of Ms. Roksvog
 any mention of the suspension involved in this case.
 
                  Ultimate Findings and Recommended Order
 
    Respondent has engaged in unfair labor practices, in violation of 5
 U.S.C. 7116(a)(1), (5), and (8) by failing to comply fully with the
 February 23, 1983 request of the Charging Party for information.
 
    Accordingly, and pursuant to 5 U.S.C. 7118 and 5 CFR 2423.26, it is
 hereby ordered that the Respondent shall:
 
    1.  Cease and desist from:
 
          (a) Refusing or failing to furnish, upon request by the
       American Federation of Government Employees, Local 3230, AFL-CIO,
       all information which is necessary to this Union to discharge its
       obligation as the exclusive representative to represent the
       interests of all employees in the unit.
 
          (b) In any like or related manner interfere with, restrain or
       coerce over employees in the exercise of rights assured by the
       Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
          (a) Upon request, make available to the American Federation of
       Government Employees, Local 3230, AFL-CIO, all information which
       is necessary to enable this Union to discharge its obligation as
       the exclusive representative to represent the interests of all
       employees in the unit.
 
          (b) Expunge from its records any reference to the suspension,
       on March 31 and April 1, 1983, of Tora Roksvog and restore to her
       any lost wages or benefits resulting from this suspension.
 
          (c) Post at its Seattle District Office, copies of the attached
       Notice.  Copies of said Notice, to be furnished by the Regional
       Director for Region IX, shall be signed by the District Manager
       and posted by him immediately upon receipt, and remain posted for
       60 consecutive days thereafter, in conspicuous places, including
       all places where notices to employees are customarily posted.
       Reasonable steps shall be taken to insure that said Notices are
       not altered, defaced, or covered by any other material.
 
          (d) Notify the Regional Director for Region IX, in writing,
       within 30 days from the date of this Order, as to what steps it
       has taken to comply herewith.
 
                                       ISABELLE R. CAPPELLO
                                       Administrative Law Judge
 
    Dated:  March 15, 1984
    Washington, D.C.
 
 
 
                                 APPENDIX
 
                          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 or fail to furnish, upon request by the American
 Federation of Government Employees, Local 3230, AFL-CIO, all information
 which is necessary to enable Local 3230 to discharge its obligation as
 agent of the exclusive representative to represent the interests of all
 employees in the unit.
 
    WE WILL NOT in any like or related manner interfere with, restrain or
 coerce employees in the exercise of rights assured by the Federal
 Service Labor-Management Statute.
 
    WE WILL, upon request, make available to Local 3230 all information
 which is necessary to enable to discharge its obligation as the agent of
 the exclusive representative to represent the interests of all employees
 in the unit.
 
    WE WILL expunge from our records any reference to the suspension, on
 March 31 and April 1, 1983, of Tora Roksvog and restore to her any lost
 wages or benefits resulting from this suspension.
                                       (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 of compliance
 with any of its provisions, they may communicate directly with the
 Regional Director of the Federal Labor Relations Authority, Region IX,
 whose address is:  530 Bush Street, Suite 542, San Francisco, CA 94108
 and whose telephone number is:  (415) 556-8106.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Respondent excepted to the Judge's finding as to the "necessity"
 for certain information requested and the dicta pertaining thereto,
 notwithstanding the fact that this information did not exist.  The
 Authority has previously held that an unfair labor practice may not be
 based upon a denial of access to non-existent data.  Division of
 Military and Naval Affairs, State of New York, Albany, New York, 8 FLRA
 307, 320-21 (1982).  Accordingly, Respondent was under no obligation to
 honor the Union's request for non-existent data and its failure to
 furnish such data was not violative of the Statute.
 
 
    /2/ Section 7114 provides, in pertinent part, that:
 
          (b) The duty of an agency and an exclusive representative to
       negotiate in good faith under subsection (a) of this section shall
       include the obligation-- . . .
 
          (4) in the case of an agency, to furnish to the exclusive
       representative involved, or its authorized representative, upon
       request and, to the extent not prohibited by law, data--
 
          (A) which is normally maintained by the agency in the regular
       course of business;
 
          (B) which is reasonably available and necessary for full and
       proper discussion, understanding, and negotiation of subjects
       within the scope of collective bargaining;  and
 
          (C) which does not constitute guidance, advice, counsel, or
       training provided for management officials or supervisors,
       relating to collective bargaining . . . .
 
    Section 7116 provides, in pertinent part, that:
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;  . . .
       (or)
 
          (5) to refuse to consult or negotiate in good faith with a
       labor organization as required by this chapter . . . or