19:0267(39)CA - Library of Congress and AFSCME Local 2910 -- 1985 FLRAdec CA



[ v19 p267 ]
19:0267(39)CA
The decision of the Authority follows:


 19 FLRA No. 39
 
 LIBRARY OF CONGRESS
 Respondent
 
 and
 
 AMERICAN FEDERATION OF STATE, COUNTY
 AND MUNICIPAL EMPLOYEES, AFL-CIO
 LOCAL 2910
 Charging Party
 
                                            Case No. 3-CA-40116
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondent had engaged in
 certain of the unfair labor practices alleged in the complaint, and
 recommending that it be ordered to cease and desist therefrom and take
 certain affirmative action.  The Judge further found that the Respondent
 had not engaged in certain other alleged unfair labor practices and
 recommended dismissal of the complaint with respect to them.  Exceptions
 to the Judge's Decision were filed by the Respondent and General
 Counsel.  The Respondent also filed a brief in opposition to the General
 Counsel's exceptions.
 
    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 in this case, the Authority
 hereby adopts the Judge's findings, conclusions and recommended Order as
 modified below.
 
    In agreement with the Judge's finding and rationale, the Authority
 concludes that the Respondent had no obligation under section 7114(b)(4)
 of the Statute to furnish, and therefore did not violate section
 7116(a)(1), (5) and (8) of the Statute as alleged in the complaint, by
 refusing to provide, information requested by the Union pertaining to
 the representation of an employee in an adverse action appeal under
 Agency regulatory appeal procedures.  In reaching this conclusion, the
 Authority notes, as did the Judge, that on September 22, 1983, a union
 steward requested certain information from the Respondent on behalf of a
 unit employee facing removal and that the purpose of the request was to
 aid the steward in the processing of an adverse action appeal under the
 Respondent's regulations and the possible filing of an Equal Employment
 Opportunity (EEO) grievance or complaint.  Further, the employee, on
 October 6, 1983, elected to have his EEO discrimination complaint
 processed under the Respondent's regulations rather than under the
 parties' negotiated agreement.  With regard to the issue of the Union's
 entitlement to information under section 7114(b)(4) of the Statute for
 purposes of representing the employee in his adverse action appeal, the
 Authority concludes, in agreement with the Judge, that the Union's
 involvement in the adverse action appeal was authorized by the
 Respondent's regulations on the basis of its being selected by the
 employee as his personal representative and was not predicated on any
 right flowing from its status as the exclusive representative, and that
 the Union was entitled only to those rights afforded the affected
 employee by the Respondent's regulations.  In this regard, when a forum
 other than the negotiated grievance procedure is selected by the
 employee, the Union is limited, in its role as a representative of the
 employee, to the disclosure procedures available in the forum selected.
 A union's right to act as an employee's representative must be read in
 the context of the Statute as a whole which consistently distinguishes
 between grievances and statutory appeals procedures (sections 7121(d)
 and 7121(e) of the Statute) /1/ and between negotiated grievance
 procedures and other forums (section 7114(a)(5)).  /2/ See Bureau of
 Government Financial Operations, Headquarters, 15 FLRA No. 87 (1984),
 petition for review filed, National Treasury Employees Union v. FLRA,
 No. 84-1493 (D.C. Cir. Oct. 1, 1984).
 
    This approach to the interpretation of section 7114(b)(4), in
 addition, insures that persons involved in regulatory procedures are
 treated equally in that a nonunit employee or an employee who chooses
 not to be represented by a union would have the same rights of discovery
 in such procedures as an employee represented by a union official.  In
 this regard it is noted that agencies, like the Respondent herein, and
 agencies concerned with statutory appeals, like the Office of Personnel
 Management (OPM), the Merit Systems Protection Board (MSPB) and the
 Equal Employment Opportunity Commission (EEOC), for example, have
 promulgated rules to regulate discovery between the parties.  /3/ These
 regulations are designed to establish an orderly, evenhanded procedure
 for the development and presentation of cases within their procedures.
 The application of section 7114(b)(4) of the Statute to those processes
 would not only interfere with this equity but also would arguably
 disturb the efficient administration of these procedures by the agencies
 involved.  Thus, given the absence of clear language in the Statute or
 its legislative history making section 7114(b)(4) applicable to the
 representation of employees in agency regulatory proceedings, no such
 intent will be inferred by the Authority.
 
    With regard to the second aspect of this case, the request for
 information to process the collateral discrimination complaint, the
 Judge found that inasmuch as discrimination complaints were actionable
 at the employee's option under the established negotiated grievance
 procedure, the Union steward was entitled by virtue of section
 7114(b)(4) of the Statute to the requested information.  In making this
 finding the Judge noted that the information request was made prior to
 the election by the employee to pursue the matter of his alleged
 discrimination through the Respondent's regulatory procedure.  In such
 circumstances, the Judge found the information was "necessary" within
 the meaning of section 7114(b)(4) of the Statute since it was related to
 the treatment of similarly situated employees.  Thus, the Judge
 concluded that the Respondent had failed to provide necessary
 information to the Union in connection with the processing of a possible
 grievance in derogation of its duty pursuant to section 7114(b)(4) of
 the Statute and thereby also violated section 7116(a)(1), (5) and (8) of
 the Statute.
 
    The Authority disagrees.  The Union's request for information of
 September 22, 1983, which predated the employee's election to proceed
 with his EEO complaint under agency regulations, was never denied by the
 Respondent between the date of its submission and the date of the
 employee's election on October 6, 1983.  Rather, as found by the Judge,
 the initial request was misplaced by the Respondent after it was logged
 in by the Respondent's Office of Staff Relations and this fact was not
 discovered by the Respondent until the inquiry by the Union
 approximately three weeks later.  When the Union was informed that its
 request had been misplaced, it resubmitted the request on October 13,
 1983, i.e., a week after the employee's election to proceed under the
 Respondent's regulatory EEO procedures.  Thus, the Authority finds from
 the facts set forth in the Judge's decision that there is an
 insufficient basis to find a refusal by the Respondent to furnish
 information within the meaning of section 7114(b)(4) of the Statute with
 regard to a possible grievance by the employee between September 22 and
 October 6, 1983.  The Authority finds also that the Respondent's
 subsequent refusal to provide information was not a violation of the
 Statute since, on October 6, the employee elected to use the agency
 regulatory procedure rather than the negotiated grievance procedure to
 process his complaint.  Accordingly, the complaint herein will be
 dismissed in its entirety.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 3-CA-40116 be, and it
 hereby is, dismissed in its entirety.  
 
 Issued, Washington, D.C., July 25, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No.: 3-CA-40116
 
    Martin F. O'Donoghue, Junior, Esquire
    Christa McClure, Esquire
       For the Respondent
 
    Patricia Eanet Dratch, Esquire
       For the General Counsel
 
    Ms. Patricia van Ee
       For the Charging Party/Union
 
    Before:  BURTON S. STERNBURG
       Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
 7101, et seq. and the Rules and Regulations issued thereunder.
 
    Pursuant to a charge filed on December 20, 1983, by Local 2910,
 American Federation of State, County and Municipal Employees, AFL-CIO,
 (hereinafter called the Union), a Complaint and Notice of Hearing was
 issued on February 29, 1984, by the Acting Regional Director for Region
 III, Federal Labor Relations Authority, Washington, D.C.  The Complaint
 alleges that the Library of Congress, (hereinafter called the Respondent
 or Library), violated Sections 7116(a)(1), (5) and (8) of the Federal
 Service Labor-Management Relations Statute, hereinafter called the
 Statute), by virtue of its actions in refusing to honor the Union's
 request for certain information relating to the processing of a
 bargaining unit employee's adverse action appeal and EEO complaint.
 
    A hearing was held in the captioned matter on April 3, 1984, in
 Washington, D.C.  All parties were afforded the full opportunity to be
 heard, to examine and cross-examine witnesses, and to introduce evidence
 bearing on the issues involved herein.  The General Counsel, the
 Respondent and the Charging Party/Union submitted post-hearing briefs on
 May 3, 1984, which have been duly considered.  /4/
 
    Upon the basis of the entire record, including my observation of the
 witnesses and their demeanor, I make the following findings of fact,
 conclusions and recommendations.
 
                             Findings of Fact
 
    The Union is the exclusive collective bargaining representative of a
 unit of professional employees working at the Library.  The Union and
 the Library are parties to a collective bargaining agreement.  Article
 XXIX of the Collective Bargaining Agreement entitled "Negotiated
 Grievance Procedure" provides in Section 3 as follows:
 
          The following matters, though not grievable under this article
       are appealable through other procedures:
 
                                  * * * *
 
          (d) adverse actions (see LCR 2020-3)
 
    Section 4, Article XXIX of the "Negotiated Grievance Procedure"
 provides as follows:
 
          An employee who charges the Library with discrimination on
       account of race, color, sex, age, or non-disqualifying physical
       handicap may file either a grievance or an appeal under LCR
       2010-3.1, but not both.  An employee shall be deemed to have
       exercised his/her option at such time as the employee timely
       initiates an action under the applicable regulation procedure or
       timely files a grievance in writing, whichever occurs first.
 
    Section 12, Article XXIX, of the "Negotiated Grievance Procedure"
 provides in "Step Three.  Referral to Arbitration" as follows:
 
          A. If the response to Step Two is not acceptable, within twenty
       (20) workdays the Guild may refer the grievance to arbitration in
       accordance with the procedures set forth in this Agreement.
 
          B.  If the response in Step Two to a discrimination grievance
       is not acceptable, within thirty (30) workdays the Guild may refer
       a discrimination grievance to arbitration.
 
    Section 9 of Article IV entitled "Equal Employment Opportunity"
 provides as follows:
 
          The Guild shall have the right to represent a complainant(s) in
       proceedings under LCR 2010-3.1.
 
    With regard to proceedings under LCR 2020-3, the Regulations dealing
 with Adverse Actions, such Regulations provide that the affected
 employee may, if she or he so chooses, be represented and/or advised by
 a representative.  The Regulations further provide that when the
 grievant "designates a labor organization or other organization to act
 as his/her representative, the individual named by the organization
 shall be recognized as the "grievants representative." Further,
 according to the Regulations, the grievant "shall be free to change the
 designation of representative." Finally, according to the Regulations,
 "the parties to such hearings shall be the grievant(s) or the
 appellant(s) and the Library."
 
    Article III of the Collective Bargaining Agreement entitled "Employee
 Rights" provides in Section 20 as follows:
 
          An employee shall have the right, upon request, to be
       represented by a Guild steward or officer at a presentation of a
       notice of adverse action proposed pursuant to LCR 2020-3.
 
    In early December 1982, Mr. Vincent Jackson, who at the time was a
 unit employee, contacted the Union seeking representation in an
 anticipated adverse action.  At that time it was decided that Union
 Steward Mary Ann Joyce would represent Mr. Jackson.  Subsequently, on or
 about December 15, 1982, Mr. Jackson was formally served with a "Notice
 of Proposed Adverse Action." Shortly thereafter, on December 20, 1982,
 Ms. Joyce filed an "Employee Designation of Representative Grievance and
 Appeals Systems form with the Respondent which designated Ms. Joyce as
 Mr. Jackson's representative with respect to (his) "appeal of the
 proposed adverse action dated 12/15/82." The form merely set forth Ms.
 Joyce's name without any title or union affiliation.  According to Ms.
 Joyce, she left out both her title and union affiliation since she
 thought that such information was superfluous since every one knew of
 her union affiliation and the fact that she had appeared as a union
 representative in past adverse action proceedings.  Further, according
 to the uncontested testimony of Ms. Joyce, in answer to an inquiry to
 Staff Relations, she had been informed that there was no necessity for
 setting forth her title or union affiliation since all Staff Relations
 "really wanted was the name of somebody to contact, so they'd know who
 to talk to in the case."
 
    On September 1, 1983, Respondent issued a decision wherein it decided
 to terminate the employment of Mr. Jackson.  On or about September 16,
 1983, Mr. Richard L. Friedman, an outside private attorney, filed on
 behalf of Mr. Jackson a "Notice of Appeal and Request For Hearing" on
 the adverse action and a new "Employee Designation of Representative
 Grievance and Appeals Systems." Both of the aforecited documents bore
 Mr. Jackson's signature.  The Designation of Representative identified
 Mr. Friedman as "an attorney of my choosing" and Ms. Joyce as a "Guild
 Steward."
 
    On September 22, 1983, the Union sent a memorandum to Respondent's
 Staff Relations Office under the names of Ms. Joyce and Union Steward
 Shollenberger.  The memorandum which was entitled:  "Re adverse action
 Vincent Jackson" read as follows:
 
          Information Request for Period of time January to the present
 
          Per Title 5 UFC 7114, AFSME 2910 requests the following
       information on behalf of Vincent Jackson.
 
          1.  All EEO complaints filed which mention Share Cat. Division,
       Processing Services and/or personnel employed therein;  to include
       a list of complainants and their grades.
 
          2.  All employees released from duty due to failure to perform
       in a position;  to include a list of names by position and grade.
 
          3.  All requests for transfer;  to include a list of names by
       position and grade.
 
          4.  All employees who have transferred from Share Cat. to
       another area of LC;  to include a list of names by position and
       grade.
 
          Your immediate attention is requested in this matter.  Please
       provide the above listed information in a timely manner not to
       exceed two weeks.
 
    Approximately three weeks later, Ms. Joyce approached Respondent's
 office of Staff Relations and inquired about the requested information
 which had not been supplied.  Mr. Leonard Scott of Staff Relations
 informed her that her request for information had been logged in but
 they were unable to find a copy of the request.  He further informed Ms.
 Joyce that in a few days all matters dealing with adverse actions were
 to be transferred to the Office of the Legal Advisor.  The meeting ended
 with Ms. Joyce agreeing to resubmit her September 22 request for
 information.  Ms. Joyce subsequently resubmitted the request on October
 13, 1983.
 
    Further, according to the uncontested testimony of Ms. Joyce, Ms.
 Joyce and Mr. Friedman met in late September or early October 1983 with
 representatives of the EEO office for purposes of timely advising such
 office of their intent to perfect an EEO complaint on behalf of Mr.
 Jackson.  /5/ They subsequently again met with Ms. Dorenna Thomas of the
 EEO office in November at which time they stated the basis of their
 complaint.
 
    On October 19, 1983, Mr. Peter Watters, Legal Adviser, Pers. replied
 to the resubmitted information request as follows:
 
          Responsibility for the adverse action program has been
       transferred to my office as of October 17, 1983. . . .
 
          It is the policy of this office to defer handling of
       information requests concerning appeals until a hearing officer
       has been selected and a hearing date scheduled.  As you know,
       there is a period of several months between the filing of an
       appeal and the actual hearing.  Responding to premature requests
       for information affects our handling of cases already scheduled to
       the detriment of the appellants therein.
 
          I am therefore returning your memorandum and request that you
       re-submit it when the hearing date has been set.  We will respond
       in ample time for you to prepare your case.
 
    On or about October 28, 1983, Ms. Joyce in her capacity as "Guild
 Steward" sent a memorandum on union stationery to Labor Relations
 Officer Martin O'Donoghue entitled "Compliance with Title 5 USC 7114
 regarding Vincent Jackson." In the memorandum Ms. Joyce renewed and
 enclosed her prior requests for information and further requested that
 Mr. O'Donoghue "secure access . . . to Mr. Jackson's file . . . for
 myself and my co-representative in the adverse action appeal and Mr.
 Jackson's EEO complaint."
 
    In December of 1983 Ms. Joyce and Union Steward Shollenberger met
 with Mr. Lou Mortimer, Director of Personnel and Mr. Peter Watters, his
 legal counsel, for purposes of discussing Mr. Jackson's adverse action.
 During the meeting Ms. Joyce presented Respondent's representatives a
 copy of a memorandum entitled "Points And Authorities In Support Of
 Complaint Of Vincent A. Jackson That Dismissal Was The Result Of
 Discrimination Because Of Mr. Jackson's Race And Sex." According to Ms.
 Joyce, the memorandum had been prepared by herself and Mr. Friedman and
 had been given to the EEO Office several days earlier.
 
    On or about January 21, 1984, Ms. Joyce and Mr. Friedman met with Mr.
 Watters for purposes of discussing Mr. Jackson's case.
 
    During the course of the meeting Mr. Watters made it clear that he
 would be willing to respond to an information request from Mr. Friedman
 if it was not made pursuant to 5 USC 7114 and he, Mr. Watters, was
 allowed to delete names.  Ms. Joyce, however, held fast to her position
 that she was entitled to the requested information pursuant to Section
 7114 of the Statute.
 
    On January 30, 1984, Mr. Friedman submitted his own request for
 information to Mr. Watters.
 
    On February 27, 1984, Watters responded to Ms. Joyce's pending
 requests for information as follows:
 
          The foregoing is my initial response to your information
       request concerning Mr. Jackson.  As you know, the hearing in this
       matter has been scheduled for April 13 and April 18, 1984, and we
       have received a comparable request for information from Richard
       Friedman, Esq. on behalf of Mr. Jackson.  We do not recognize the
       applicability of 5 USC 7114 to our adverse action process, but are
       responding in accordance with our applicable practices with
       respect to discovery in such cases.  Should you wish to contest
       our response, you may raise the matter with the hearing examiner
       that has been appointed in this case.  There now follows specific
       items involved in your request and our response to each:
 
          1.  All EEO complaints filed, which mention Shared Cataloging
       Division, Processing Services and/or any personnel employed
       therein;  to include a list of names of complainants and their
       grades.
 
          We cannot provide information on all EEO complainants which
       mention the Shared Cataloging Division, since such information is
       not normally maintained in the regular course of business and such
       records are not reasonably available;  nor are they necessary for
       full and proper discussion of the issues in this case.  We refuse
       to disclose the names of complainants, since to do so would
       constitute a violation of LCR 1917-3 Section 4A(a) in that such
       action would constitute a clearly unwarranted invasion of privacy.
        We are, however, providing copies of formal and informal
       complaints filed against supervisors in the Shared Cataloging
       Division for the period in question.  Names of the complainants
       involved will be deleted.
 
          2.  All employees released from duty due to failure to perform
       in a position;  to include a list of names by position and grade.
 
          We interpret your request to mean all employees of the Library
       of Congress.  The information will be provided, but the names will
       be deleted for the reasons stated above.
 
          3.  All requests for transfer;  to include a list of names by
       position and grade.
 
          We interpret this request to mean all requests for transfer
       within the Library of Congress.  We decline to provide this
       information because it is not normally maintained in the regular
       course of business, it is not reasonably available, and is not
       necessary for full and proper discussion of the issues in this
       case.  We will, however, make available information on requests
       for transfers made by employees of the Shared Cataloging Division
       for the period in question, but will not provide the names of
       those employees for the reasons stated above.
 
          4.  All employees who have transferred from the Shared
       Cataloging Division to another area of LC;  to include a list of
       names by position and grade.
 
          This information will be provided with the exception of the
       names of the employees.  We decline to include a list of the names
       for the reasons stated above.
 
    On or about March 22, 1984, Ms. Joyce was notified that the packet of
 information that she had requested was available in the Office of the
 Legal Advisor.  Upon appearing at the Office of Legal Advisor she was
 informed that there were two packets of materials, one for her and one
 for Mr. Friedman.  She was further informed that the packets were
 identical and asked to sign a certificate of service, for the packet
 assigned to her.  Upon examining the packet prepared for her, Ms. Joyce
 noticed that a number of items were missing from the requested
 materials, namely various referenced attachments and back pages of many
 exhibits.  Ms. Joyce refused to sign the certificate of service and on
 the next day wrote a letter to Mr. Watters stating as follows:
 
          The notice of what your office promised to furnish (dated
       2/27/84) is not adequate response to our request.  When called to
       your office on March 22, 1984, the materials offered were not in
       compliance with your response to my request (since pages with
       substantive passages were missing) and inadequate for the purpose
       intended.  I am still waiting for those pages to be secured so
       that the package you promised to furnish can be completed for my
       pickup as soon as possible.
 
          Please note that neither the response of Feb. 27, 1984 nor the
       attempt to deliver incomplete materials relieves the Library of
       its responsibility pursuant to 5 USC 7114.  Once again, meeting
       the information request for Mr. Friedman in no way satisfies the
       Library's obligation to the Guild in connection with the ULP.
 
    On March 26, 1984, Ms. Joyce received the missing pages that she had
 complained about.  However, according to Ms. Joyce the complete package
 of information supplied did not comply with her September 22, 1983
 request for information.  Thus, Ms. Joyce testified as follows:
 
          We asked for information, for example, on discrimination
       complaints involving Shared Cataloging Division and the whole
       Processing Services Department.  We did not receive the
       information;  we received information on only complaints filed
       against Mr. Hugo Christianson, not even for other Shared
       Cataloguing Division management officials.  We asked for the names
       of the complainants, and we did not get that. . . .  Because we
       needed to be able to interview these people about their cases so
       that we could find out exactly what went on and what information
       would bear on the adverse action complaint and the EEO complaint.
       . .. Items 2 and 3 on the September 22nd information request were
       Library-wide.  We did not receive Library-wide information;  we
       received information on people released from duty for failing to
       perform only in the Shared Cataloging Division.  And similarly, we
       received only requests for transfer regarding Shared Cataloging
       Division.  And we received-- we asked for information in the last
       item about employees who transferred from Shared Cataloging to
       another area of the Library.  We did get information of this sort,
       but the way the information was supplied would have precluded
       being able to identify individuals or even identify information
       from one segment of the request to another.
 
    Mr. Peter Watters, Counsel for Personnel in the Personnel Office,
 testified that his office "was responsible for the appeals process and
 for trying adverse action cases on appeal." Additionally, according to
 Mr. Watters' uncontested testimony, the Office of Personnel represents
 the individual managers accused of discrimination in violation of the
 EEO program.
 
    With respect to adverse actions, Mr. Watters testified that such
 proceedings are governed by the Library of Congress regulations and that
 the only parties to such proceedings are the Library and the affected
 employee.  While an affected employee has a right in both an Adverse
 Action proceeding and an EEO proceeding to choose his own personal
 representative, which may be a union agent, a private attorney, etc.
 such representative does not get any greater rights than those accorded
 the affected employee under the applicable regulations governing the
 proceedings.  While acknowledging that Ms. Joyce had made a request for
 information with respect to Mr. Jackson's adverse action, Mr. Watters
 denied ever receiving a request for information concerning Mr. Jackson's
 EEO discrimination case.  However, he does acknowledge talking to Ms.
 Joyce in December of 1983 and January 1984 about the EEO matter and
 instructing her that the proper place to file materials concerning EEO
 matters was the EEO Complaint Office.  In answer to a question from the
 General Counsel, Mr. Watters admitted that there was no written
 instruction providing for the filing of EEO materials with the EEO
 Complaint Office.  Subsequent to the above conversations he drafted a
 memorandum to Ms. Joyce wherein he informed her that he was referring
 her "points and authorities" memorandum to the EEO Complaint Office.
 
    With respect to Respondent's practice in the area of supplying
 information requested by an employee's union representative in
 connection with an adverse action or discrimination proceeding, Mr.
 Watters testified that it was the Respondent's practice to apply the
 Federal Rules with respect to discovery to such requests and make the
 requested information available at least two weeks prior to the
 scheduled hearing in the matter.  Further, according to Mr. Watters, if
 Respondent was not going to satisfy the "entire request" for
 information, it then makes a "preliminary response" which enables the
 requesting party to bring the matter up before the hearing officer prior
 to the hearing.  The hearing officer then decides the merits of the
 request.  Inasmuch as Respondent has approximately 22-30 appeals a year,
 it does not assign an attorney to the appeal until such time as the case
 is set for hearing, and therefore does not handle any information
 requests prior to such time.  In support of Mr. Watters testimony
 concerning the aforementioned practice, Respondent submitted into
 evidence a number of case files involving other adverse action appeals
 wherein requested information was not supplied until approximately two
 weeks before the scheduled hearing.
 
                        Discussion and Conclusions
 
    The General Counsel and the Union take the position that Respondent
 violated Sections 7116(a)(1), (5) and (8) of the Statute by virtue of
 its action in failing to make all the requested information available to
 the Union.  In support of the above position the General Counsel and the
 Union rely on certain portions of the record which they contend supports
 the conclusion that the requests for information were made by Ms. Joyce
 not as an individual but rather in her capacity as Union steward.  In
 such circumstances and since the Union has a "broad right pursuant to
 Section 7114(b)(4) of the Statute" for all relevant information in
 Respondent's possession necessary for the Union to perform its statutory
 duties and responsibilities, Respondent violated the Statute by not
 supplying all the requested information.  The Union and the General
 Counsel further contend that the record makes it clear that the Union
 was seeking the information not only for the adverse action appeal of
 Mr. Jackson but also for the possible filing of an EEO complaint.  In
 support of their position with respect to the entitlement of the Union
 to the information with respect to the adverse action proceeding, the
 General Counsel and the Union rely, in the main, on the Authority's
 decisions in IRS, Jacksonville District, 1 FLRA 265, and IRS, Western
 Region, San Francisco, California, 9 FLRA 480.
 
    Respondent, on the other hand, while acknowledging that a union has a
 broad right pursuant to Section 7114(b)(4) of the Statute to information
 within Respondent's possession which is relevant and necessary for the
 union to properly perform its statutory duties and responsibilities,
 takes the position that under the circumstances of the instant case the
 Union's Section 7114(b)(4) rights were not applicable, and that
 Respondent was not in violation of the Statute in refusing to give the
 Union all the requested material.  Thus, Respondent takes the position
 that Ms. Joyce was not acting in her position as Union steward when she
 made the requests for information, that the requests for information did
 not encompass EEO matters, and that in any event, a Union's Section
 7114(b)(4) right to information does not extend to forums or proceedings
 outside the negotiated grievance procedure.  Additionally, Respondent
 would find the cases relied upon by the General Counsel to be
 distinguishable since the proceedings in such cases were clearly covered
 by the negotiated collective bargaining agreement.
 
    In view of the above stated positions of the parties, it is obvious
 that basic to the resolution of the instant complaint are determinations
 with respect to (1) the status of Ms. Joyce at the time the requests for
 information were made, i.e. was she acting as an individual
 representative or in her capacity as a Union steward, (2) the extent
 and/or basis for the requests for information, i.e. was the request
 solely for purposes of processing the adverse action or did it also
 include the possibility of an EEO complaint, and (3) if Ms. Joyce was in
 fact acting in her capacity as a duly appointed Union steward, the
 extent to which the Union's right to information under Section
 7114(b)(4) applies to forums other than the negotiated grievance
 procedure.
 
    With respect to the status of Ms. Joyce at the time the requests for
 information were made, I find, contrary to the contention of the
 Respondent that Ms. Joyce requested the information not as an individual
 but rather in her capacity as a duly appointed Union steward.  In
 reaching this conclusion I rely on her credited testimony to this effect
 and the fact that just about all her communications to Respondent
 concerning the requests for information were on stationery bearing the
 Union letterhead and all bore her title as Union steward after her name.
  Additionally, as authority for the requests she cited Section 7114 of
 the Statute.
 
    I further find that the Union's requests for information clearly
 indicated that one of the purposes for same was the possible filing of
 an EEO complaint.  In reaching this conclusion I rely on the first
 paragraph of the September 22, 1983 letter to Leonard Scott of Staff
 Relations, the second paragraph of the October 28, 1983 memorandum to
 Martin O'Donoghue, Labor Relations Officer and the first paragraph of
 the January 1, 1984 memorandum to Mr. Watters.  Additionally, it is
 noted that Ms. Joyce and Mr. Friedman met with representatives of the
 EEO office in late September and early October, 1983, for purposes of
 informing such office of their intent to perfect an EEO complaint on
 behalf of Mr. Jackson.  In view of the foregoing I find that the
 requests for information filed by Ms. Joyce in her capacity as Union
 steward were not solely for purpose of perfecting the adverse action
 appeal of Mr. Jackson, as contended by the Respondent.  Rather, I find
 that the requests also encompassed material necessary for the
 consideration of a possible EEO complaint.  To the extent that there
 might have been some doubt in the minds of Respondent's representatives
 with respect to the basis of the request, I find that any such doubts
 should have been resolved in the subsequent discussions with EEO office
 representatives.
 
    Having concluded that Ms. Joyce was acting in her capacity as Union
 steward and that her requests for information were for the dual purpose
 of processing both an adverse action and an EEO complaint, the sole
 issue remaining for resolution is the entitlement of the Union to the
 requested information under Section 7114(b) of the Statute.  Or stated
 another way, does the Union's right to information under Section 7114(b)
 of the Statute extend to forums other than those created by the
 collective bargaining process.  /6/
 
    As noted above, the General Counsel and the Charging Party would
 answer the question in the affirmative.  However, as pointed out by
 Respondent, an analysis of the cases relied upon by the General Counsel
 /7/ indicates that the facts underlying such cases are clearly
 distinguishable from the facts presented herein.
 
    In IRS Jacksonville, supra, the Respondent proposed the termination
 of a probationary employee.  Pursuant to an article of the collective
 bargaining agreement applicable to the proposed termination of
 probationary employees, the Union requested a meeting to discuss the
 matter.  In order to prepare for the meeting the Union requested certain
 data concerning the probationary employee and six other similarly
 situated probationary employees for purposes of comparing their work
 records and to demonstrate that the probationary employee which the
 Respondent proposed to terminate was not less productive, etc., than the
 other six probationary employees retained.  Respondent's refusal to make
 the requested information available to the Union was found to be
 violative of Sections 19(a)(1) and (6) of Executive Order 11491, as
 amended.
 
    In IRS, Western Region, San Francisco, California, supra, the
 Respondent proposed to suspend an employee for 30 days for infraction of
 a rule or regulation.  Pursuant to a provision of the collective
 bargaining agreement in effect dealing with proposed adverse actions,
 the Union which was designated by the affected employee as his
 representative requested copies of all adverse or disciplinary actions
 for the past three years within the Respondent's Region dealing with
 similar violations as those allegedly committed by the affected
 employee.  In finding that the Respondent violated Sections 7116(a)(1)
 and (5) of the Statute by failing to make the information available to
 the Union as requested under 7114(b) of the Statute, the Authority
 stated as follows:
 
          The Union was entitled to such data to enable it to properly
       represent a unit employee at an oral hearing prior to management's
       consideration of a proposed adverse action, which hearing is
       provided for in the negotiated agreement.
 
    Neither of the above cited cases involve employee representation at
 forums apart from those envisioned, contemplated and/or established by
 virtue of the Union's status as exclusive bargaining representative.  In
 fact, in both of the above cited cases the Unions there involved, were
 pursuing rights provided for in the respective collective bargaining
 agreements.  Neither case stands for the proposition that the Union's
 Section 7114(b) right to information extends to forums which exist apart
 from the Union's selection as exclusive collective bargaining
 representation.  They do, however, stand for the proposition that in
 adverse action cases, information concerning similarly situated
 employees is "necessary" for a Union to carry on its representational
 responsibilities.
 
    A review of past authority decisions dealing with requests for
 information under Section 7114(b) of the Statute fails to disclose any
 case which is directly in point with respect to the facts presented
 herein.  Rather, such cases generally deal with requests for information
 necessary (1) to consider and/or process grievances under the negotiated
 grievance procedure (2) to formulate proposals concerning conditions of
 employment, and (3) to police the provisions of the collective
 bargaining contract, all of which fall within the responsibilities
 imposed upon a union by virtue of its certification or recognition as
 the exclusive representative of a unit of employees.
 
    In the area of grievances, the union normally has the sole authority
 for invoking arbitration, the last step in the grievance procedure.
 Having such authority and representational responsibility associated
 therewith, the union has in all cases been entitled to all information
 necessary and relevant to carrying out such responsibility in an
 intelligent manner.  Absent such responsibility, the union would not be
 entitled to the information.  The responsibility runs with the
 certification.
 
    In the instant case the collective bargaining agreement specifically
 excludes adverse actions from the coverage of the negotiated grievance
 procedure and makes same appealable only through procedures established
 by Respondent's regulations.  With respect to EEO complaints, the
 discriminatee has the option of processing same under either the
 grievance procedure or procedures established by Respondent's
 regulations.  The contractual provision further provides that the
 affected employee "shall be deemed to have exercised such option" at
 such time as he initiates an action under the applicable regulation
 procedure or files a grievance in writing.  As noted above in footnote
 3, Mr. Jackson subsequently opted to have his EEO complaint processed
 under the Respondent's EEO regulation procedure.
 
    The applicable Library of Congress regulation dealing with adverse
 actions indicates that the only parties to such action will be the
 grievant or appellant and the Library.  Further to the extent that an
 affected employee chooses to designate a labor organization as his
 representative, the individual named as the labor organization's agent
 appears solely as the grievant's personal representative.
 
    In view of the foregoing it is clear, and I so find, that the Union's
 presence at an adverse action appeal processed pursuant to the Library's
 existing regulation is not predicated on any right flowing from its
 status as exclusive representative, but rather solely on the basis of
 being selected by the affected employee as his personal representative.
 In such circumstances the Union, not appearing in its capacity as an
 exclusive representative, is only entitled to the rights afforded the
 affected employee under the regulations.
 
    Accordingly, based upon the above findings and conclusions, I further
 conclude that the Union's Section 7114(b) rights were not actionable
 and/or applicable to adverse action appeals being processed under
 Respondent's regulations and that Respondent's failure to comply fully
 with Ms. Joyce's request for information with respect to Mr. Jackson's
 adverse action appeal was not violative of Sections 7116(a)(1), (5) and
 (8) of the Statute.  In line with this conclusion, I recommend that this
 aspect of the complaint be dismissed in its entirety.
 
    Turning now to the second aspect of the case, i.e. the request for
 information necessary to process Mr. Jackson's collateral discrimination
 complaint, I find that inasmuch as discrimination complaints were
 actionable at the employee's option under the established grievance
 procedure, Ms. Joyce, in her capacity as Union steward, was entitled by
 virtue of Section 7114(b) of the Statute to the requested information.
 In reaching this conclusion I note that the request for information was
 made prior to the time that Mr. Jackson had made his election to pursue
 the matter of his discrimination through the Respondent's regulatory
 procedure, rather than the established grievance procedure.  In such
 circumstances the information sought was in connection with an incipient
 grievance.  Inasmuch as a union is entitled to information on similarly
 situated employees under Section 7114(b) in connection with incipient
 grievances, I find that by failing to supply the Union with the
 requested information Respondent violated Sections 7116(a)(1), (5) and
 (8) of the Statute.  /8/ Internal Revenue Service, Jacksonville
 District, supra;  Department of the Navy, Portsmouth Naval Shipyard, 4
 FLRA No. 82.
 
    Having concluded that the Respondent violated Sections 7116(a)(1),
 (5) and (8) of the Statute by failing to honor the Union's request for
 information necessary for the intelligent consideration of a possible
 EEO complaint on behalf of Mr. Jackson, it is recommended that the
 Federal Labor Relations Authority issue the following order:
 
                                   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 Library of Congress shall:
 
    1.  Cease and desist from:
 
          (a) Refusing to furnish to the American Federation of State,
       County and Municipal Employees, AFL-CIO, Local 2910 the documents
       and material requested by it on September 22, 1983, and any other
       material which is reasonably available and necessary to enable the
       Union, as the exclusive representative of the Respondent's
       employees, to discharge its representational obligation to
       employee Vincent Jackson or any other unit employee.
 
          (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 State,
       County and Municipal Employees, AFL-CIO, Local 2910 the documents
       and material requested by it on September 22, 1983, and any other
       material which is reasonably available and necessary to enable the
       Union, as the exclusive representative of the Respondent's
       employees, to discharge its representational obligation to
       employee Vincent Jackson or any other unit employee.
 
          (b) Post at its facilities at its Washington, DC 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 a responsible official and shall be posted and
       maintained by him for 60 consecutive days thereafter, in
       conspicuous places, including all bulletin boards and other places
       where notices to employees are customarily posted.  The
       responsible official shall take reasonable steps 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 III, 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.
 
                                       BURTON S. STERNBURG
                                       Administrative Law Judge
 
 Dated:  July 12, 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 to furnish to the American Federation of State,
 County and Municipal Employees, AFL-CIO, Local 2910, the documents and
 material requested by it on September 22, 1983, and any other material
 which is reasonably available and necessary to enable the Union, as the
 exclusive representative of our employees, to discharge its
 representational obligation to employee Vincent Jackson or any other
 unit employee.  WE WILL NOT in any like or related manner interfere
 with, restrain, or coerce employees in the exercise of rights assured by
 the Statute.  WE WILL, upon request, furnish to the American Federation
 of State, County and Municipal Employees, AFL-CIO, Local 2910, the
 documents and material requested by it on September 22, 1983, and any
 other material which is reasonably available and necessary to enable the
 Union as the exclusive representative of our employees, to discharge its
 representational obligation to employee Vincent Jackson or any other
 unit employee.
                                       (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 III, whose address is:
 111 - 18th Street, Suite 700, P.O. Box 33758, Washington, DC 20033-0758,
 and telephone number is:  (202) 653-8456.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7121(d) and (e) provides:
 
          (d) An aggrieved employee affected by a prohibited personnel
       practice under section 2302(b)(1) of this title which also falls
       under the coverage of the negotiated grievance procedure may raise
       the matter under a statutory procedure or the negotiated
       procedure, but not both.  An employee shall be deemed to have
       exercised his option under this subsection to raise the matter
       under either a statutory procedure or the negotiated procedure at
       such time as the employee timely initiates an action under the
       applicable statutory procedure or timely files a grievance in
       writing, in accordance with the provisions of the parties'
       negotiated procedure, whichever event occurs first.  Selection of
       the negotiated procedure in no manner prejudices the right of an
       aggrieved employee to request the Merit Systems Protection Board
       to review the final decision pursuant to section 7702 of this
       title in the case of any personnel action that could have been
       appealed to the Board, or, where applicable, to request the Equal
       Employment Opportunity Commission to review a final decision in
       any other matter involving a complaint of discrimination of the
       type prohibited by any law administered by the Equal Employment
       Opportunity Commission.
 
          (e)(1) Matters covered under sections 4303 and 7512 of this
       title which also fall within the coverage of the negotiated
       grievance procedure may, in the discretion of the aggrieved
       employee, be raised either under the appellate procedures of
       section 7701 of this title or under the negotiated grievance
       procedure, but not both.  Similar matters which arise under other
       personnel systems applicable to employees covered by this chapter
       may, in the discretion of the aggrieved employee, be raised either
       under the appellate procedures, if any, applicable to those
       matters, or under the negotiated grievance procedure, but not
       both.  An employee shall be deemed to have exercised his option
       under this subsection to raise a matter either under the
       applicable appellate procedures or under the negotiated grievance
       procedure at such time as the employee timely files a notice of
       appeal under the applicable appellate procedures or timely files a
       grievance in writing in accordance with the provisions of the
       parties' negotiated grievance procedure, whichever event occurs
       first.
 
          (2) In matters covered under sections 4303 and 7512 of this
       title which have been raised under the negotiated grievance
       procedure in accordance with this section, an arbitrator shall be
       governed by section 7701(c)(1) of this title, as applicable.
 
 
    /2/ Section 7114(a)(5) provides:
 
          (5) The rights of an exclusive representative under the
       provisions of this subsection shall not be construed to preclude
       an employee from--
 
          (A) being represented by an attorney or other representative,
       other than the exclusive representative, of the employee's own
       choosing in any grievance or appeal action;  or
 
          (B) exercising grievance or appellate rights established by
       law, rule, or regulation;
 
          except in the case of grievance or appeal procedures negotiated
       under this chapter.
 
 
    /3/ See OPM regulations at 5 C.F.R. 752.404(c) (1984);  MSPB
 regulations at 5 C.F.R. 1201.71-.81 (1984);  and EEOC regulations at 29
 C.F.R. 1613.216-.218 (1984).
 
 
    /4/ In the absence of any objection, the General Counsel's Motion To
 Correct Transcript is hereby granted.  It is further Ordered that
 Respondent's post hearing motion to strike the Charging Party's post
 hearing brief solely on the ground that service of a courtesy copy of
 the brief on Respondent was not effected simultaneously with the timely
 filing of same with the undersigned, be denied.  While the Charging
 Party's inadvertence is not to be condoned, in the absence of any
 showing of prejudice, I find that the requested penalty of "striking"
 the post hearing brief is not in order.
 
 
    /5/ Vincent Jackson filed