19:0267(39)CA - Library of Congress and AFSCME Local 2910 -- 1985 FLRAdec CA
[ v19 p267 ]
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 an "Employee Designation of Representative (pursuant to LCR 2010-3.1)" on Oct. 6, 1983. The designation named "Mary Ann Joyce and Richard Friedman" as his representatives. Ms. Joyce's union affiliation did not appear after her name. /6/ By filing an employee designation on October 6, 1983, pursuant to LCR 2010-3-3.1, Mr. Jackson indicated his election to have his EEO discrimination complaint processed under Respondent's regulations rather than under the negotiated grievance procedure. /7/ IRS Jacksonville District and IRS Western Region, San Francisco, supra. /8/ To the extent Respondent relies on the Library's regulation dealing with "privacy" as a defense to the Union's request for certain information, I find such defense to be without merit. Veterans Administration Regional Office, Denver, Colorado, 7 FLRA 629 and 10 FLRA 453.