Internal Revenue Service, Chicago, Illinois (Respondent) and National Treasury Employees Union, National Treasury Employees Union, Chapter 10 (Complainant)

 3 FLRA No. 75
 
 INTERNAL REVENUE SERVICE
 CHICAGO, ILLINOIS
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES
 UNION, NATIONAL TREASURY EMPLOYEES
 UNION, CHAPTER 10
 Complainant
 
                                            Case No. 5-CA-77
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
 ORDER IN THE ABOVE-ENTITLED PROCEEDING RECOMMENDING THAT THE COMPLAINT,
 WHICH ALLEGED UNFAIR LABOR PRACTICES UNDER EXECUTIVE ORDER 11491, AS
 AMENDED, AND THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92
 STAT. 1215), BE DISMISSED.  THE COMPLAINANT FILED EXCEPTIONS TO THE
 ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER AND THE
 RESPONDENT FILED A REPLY TO THE COMPLAINANT'S EXCEPTIONS.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
 WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION
 PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
 (45 F.R. 3482, JANUARY 17, 1980).  THE AUTHORITY CONTINUES TO BE
 RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN
 SECTION 7135(B) OF THE STATUTE.
 
    THEREFORE, PURSUANT TO SECTIONS 2400.2 AND 2423.9 OF THE AUTHORITY'S
 RULES AND REGULATIONS AND SECTIONS 7118 AND7135(B) OF THE STATUTE, THE
 AUTHORITY HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE
 AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE
 RULINGS ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE
 LAW JUDGE'S RECOMMENDED DECISION AND ORDER AND THE RESPONDENT'S REPLY,
 THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
 CONCLUSIONS, AND RECOMMENDATION.  IN THIS REGARD, THE AUTHORITY NOTES
 WITH APPROVAL THE ADMINISTRATIVE LAW JUDGE'S CONCLUSION THAT THIS CASE
 DOES NOT INVOLVE AN UNFAIR LABOR PRACTICE ALLEGATION THAT AN AGENCY HAS
 REFUSED TO PROVIDE IN EXCLUSIVE BARGAINING REPRESENTATIVE NECESSARY
 INFORMATION TO CARRY OUT ITS BARGAINING RESPONSIBILITY AND AN INDIVIDUAL
 HAS RAISED THE SAME ISSUE IN A GRIEVANCE.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN AUTHORITY CASE NO.
 5-CA-77 BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JUNE 26, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    SHEILA A. REILLY, ESQUIRE
 
    ATTORNEY
 
    BRENDA M. ROBINSON, ESQUIRE
 
    REGIONAL ATTORNEY
 
    FEDERAL LABOR RELATIONS AUTHORITY
 
    219 S. DEARBORN STREET, ROOM 1638
 
    CHICAGO, ILLINOIS 60604
 
                          FOR THE GENERAL COUNSEL
 
    SHARON DANCH, ESQUIRE
 
    ASSISTANT COUNSEL
 
    NATIONAL TREASURY EMPLOYEES UNION
 
    1730 -- STREET, N.W., SUITE 1101
 
    WASHINGTON, D.C.  20006
 
                          FOR THE CHARGING PARTY
 
    DAVID L. MURPHY, ESQUIRE
 
    OFFICE OF THE REGIONAL COUNSEL
 
    INTERNAL REVENUE SERVICE
 
    219 SOUTH DEARBORN STREET
 
    22ND FLOOR SOUTH
 
    CHICAGO, ILLINOIS 60604
 
                            FOR THE RESPONDENT
 
    BEFORE:  WILLIAM B. DEVANEY
 
                         ADMINISTRATIVE LAW JUDGE
 
                            DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    THIS IS A PROCEEDING UNDER THE STATUTE, 5 U.S.C. 7101, ET SEQ.  THE
 ORIGINAL CHARGE WAS FILED BY THE CHARGING PARTY ON APRIL 19, 1979 (G.C.
 EXH. 1A) AND AN AMENDED CHARGE WAS FILED ON AUGUST 22, 1979 (G.C. EXH.
 1C).  COMPLAINT AND NOTICE OF HEARING ISSUED ON AUGUST 28, 1979;  THE
 HEARING WAS SET FOR OCTOBER 2, 1979;  AND PURSUANT THERETO, A HEARING
 WAS DULY HELD BEFORE THE UNDERSIGNED ON OCTOBER 2, 1979, IN CHICAGO,
 ILLINOIS.
 
    AT THE COMMENCEMENT OF THE HEARING, THE PARTIES SUBMITTED A
 STIPULATION WHICH WAS MADE A PART OF THE RECORD AS JOINT STIPULATION,
 TOGETHER WITH EXHIBITS 1 THROUGH 27 ATTACHED THERETO AND A PART THEREOF.
  EXHIBIT 21 TO THE STIPULATION IS A COPY OF THE GRIEVANCE FILED BY
 SYLVIA L. HARRIS UNDER THE NEGOTIATED GRIEVANCE PROCEDURE ON APRIL 5,
 1979, AND EXHIBIT 22 TO THE STIPULATION IS A COPY OF THE GRIEVANCE FILED
 BY ROBERT S. GREENSPAN UNDER THE NEGOTIATED GRIEVANCE PROCEDURE ON APRIL
 10, 1979.
 
    THE GRAVAMAN OF THE COMPLAINT, AS SET FORTH IN PARAGRAPH IV(B), WAS
 THAT, ON VARIOUS DATES IN 1978 AND 1979,
 
    " . . . THE UNION AND EMPLOYEES ROBERT GREENSPAN AND SYLVIA HARRIS
 HAVE REQUESTED AND ARE
 
    REQUESTING THE RESPONDENT TO FURNISH TO THE UNION NECESSARY AND
 RELEVANT INFORMATION RELATING
 
    TO THE PROPOSED SUSPENSION OF BARGAINING UNIT EMPLOYEES ROBERT
 GREENSPAN AND SYLVIA HARRIS FOR
 
    THE PURPOSE OF REPRESENTING THESE EMPLOYEES REGARDING SAID PROPOSED
 
    ACTION.  . . . " (G.C. EXH. 1E)
 
    AS THE GRIEVANCE OF EACH EMPLOYEE (EXHIBIT 21 AND 22 TO JOINT
 STIPULATION) STATED,
 
    "I TAKE EXCEPTION TO THE FACT THAT I HAVE NOT BEEN PROVIDED WITH ALL
 THE INFORMATION THAT
 
    HAS BEEN REQUESTED."
 
    IT WAS APPARENT THAT THE PROVISIONS OF SECTIONS 19(D) 7116(D) AND
 7121(D) AND (E) MIGHT PRECLUDE FUTHER PROCEEDINGS HEREIN, INASMUCH AS
 THE GRIEVANCES APPEARED TO RAISE THE SAME ISSUE, NAMELY FAILURE TO
 FURNISH INFORMATION REQUESTED, AND, AFTER EXTENSIVE ORAL ARGUMENT, THE
 UNDERSIGNED STATED, ON THE RECORD, THAT HE HAD CONCLUDED THAT THE
 GRIEVANCES HAD, IN FACT, RAISED THE SAME ISSUE, I.E., FAILURE TO FURNISH
 REQUESTED INFORMATION TO EMPLOYEES HARRIS AND GREENSPAN, AS RAISED BY
 THE COMPLAINT;  THAT FROM THE AMENDED CHARGE (G.C. EXH. 16) AND THE
 COMPLAINT (G.C. EXH. 1E) IT WAS CLEAR THAT THE UNION HAD REQUESTED THE
 INFORMATION ONLY IN CONNECTION WITH THE REPRESENTATION OF EMPLOYEES
 HARRIS AND GREENSPAN IN THEIR GRIEVANCES OF THEIR DISCIPLINARY ACTIONS
 /1/ ;  AND, ACCORDINGLY, THE UNDERSIGNED STATED THAT IT WAS HIS
 INTENTION, SUBJECT TO SUCH FURTHER AND ADDITIONAL WRITTEN SUBMISSIONS
 THE PARTIES CARED TO SUBMIT, TO GRANT RESPONDENT'S MOTION TO DISMISS.
 THE HEARING WAS CLOSED AND OCTOBER 9, 1979, WAS FIXED AS THE DATE FOR
 MAILING BRIEFS.  RESPONDENT'S BRIEF, DATED OCTOBER 12, 1979, WAS
 RECEIVED ON OCTOBER 17, 1979, AND GENERAL COUNSEL'S BRIEF, DATED OCTOBER
 11, 1979, WAS RECEIVED ON OCTOBER 19, 1979.  COUNSEL FOR THE CHARGING
 PARTY, BY LETTER DATED OCTOBER 22, 1979, RECEIVED BY THIS OFFICE ON
 OCTOBER 30, 1979, CONCURRED WITH THE ARGUMENTS AND POSITIONS STATED BY
 THE GENERAL COUNSEL.  EACH BRIEF HAS BEEN CAREFULLY CONSIDERED.
 
                                DISCUSSION
 
    THE COMPLAINT ALLEGED VIOLATIONS OF SECTIONS 19(A)(1) AND (6) OF
 EXECUTIVE ORDER 11491, AS AMENDED (HEREINAFTER ALSO REFERRED TO AS THE
 "ORDER"), AS WELL AS VIOLATIONS OF SECTION 7116(A)(1) AND (5) OF THE
 STATUTE, 5 U.S.C.SECTION 7116(A)(1) AND (5).  SECTION 19(D) OF THE ORDER
 PROVIDES, IN PART, THAT:
 
    "(D) . . . ISSUES WHICH CAN BE RAISED UNDER A GRIEVANCE PROCEDURE
 MAY, IN THE DISCRETION OF
 
    THE AGGRIEVED PARTY, BE RAISED UNDER THAT PROCEDURE OR THE COMPLAINT
 PROCEDURE UNDER THIS
 
    SECTION, BUT NOT UNDER BOTH PROCEDURES.  . . . "
 
    THE PURPOSE AND EFFECT OF THIS PROVISION IS " . . . TO PREVENT
 RELITIGATION (OF THE SAME ISSUES) AFTER A FREE CHOICE OF REMEDIES . . .
 " HAS BEEN MADE BY THE AGGRIEVED PARTY.  VETERANS ADMINISTRATION, NORTH
 CHICAGO VETERANS HOSPITAL, NORTH CHICAGO, ILLINOIS, A/SLMR 1024 (AT P.
 42 OF THE RECOMMENDED DECISION)(1978);  SEE, ALSO, EQUAL EMPLOYMENT
 OPPORTUNITY COMMISSION, 6 A/SLMR 484, AT 6 SUPPLEMENT A/SLMR 187(1976).
 
    IN THIS CASE, MS. HARRIS AND MR. GREENSPAN RAISED THE SAME ISSUE OF
 THE NON-PRODUCTION OF REQUESTED INFORMATION IN THEIR GRIEVANCES AS IS AT
 ISSUE IN THE COMPLAINT.  CAREFUL CONSIDERATION HAS BEEN GIVEN TO GENERAL
 COUNSEL'S CONTENTIONS, ADVANCED AT THE HEARING AND RENEWED IN HIS BRIEF,
 THAT, IN SUBSTANCE, BECAUSE THE NON-PRODUCTION OF REQUESTED INFORMATION
 ISSUE APPEARS IN THE SECTION OF EACH GRIEVANCE ENTITLED "ARGUMENT",
 GRIEVANTS HAD NOT EFFECTIVELY RAISED THE ISSUE IN THE GRIEVANCE AND/OR
 THAT GRIEVANTS DID NOT INTEND TO RAISE THE ISSUE IN THE GRIEVANCE, BUT
 SUCH CONTENTIONS HAVE NOT BEEN FOUND PERSUASIVE INASMUCH AS THE
 DOCUMENTS IN QUESTION ARE TO THE CONTRARY.  /2/ NOT ONLY DID GRIEVANTS
 HARRIS AND GREENSPAN RAISE THIS ISSUE IN THIER GRIEVANCE, BUT THEY ALSO
 DID SO WITH THEIR APPARENT INPRIMATURE OF THE CHARGING PARTY AS IS
 EVIDENCED BY THEIR USE OF THE UNION'S OFFICIAL STATIONARY FOR THEIR
 GRIEVANCES.  IN ANY EVENT, ELECTION BY GRIEVANTS TO RAISE THE
 NON-PRODUCTION OF INFORMATION IN THEIR TIMELY GRIEVANCES PRECLUDES THE
 UNION RAISING THE SAME ISSUE UNDER THE UNFAIR LABOR PRACTICE PROCEDURES.
  CF. FEDERAL AVIATION ADMINISTRATION, MUSKEGON AIR TRAFFIC CONTROL
 TOWER, A/SLMR NO. 543, 5 A/SLMR, 457(1975);  DEPARTMENT OF DEFENSE
 DEPENDENTS SCHOOLS, EUROPE, LONDON CENTRAL HIGH SCHOOL, HIGH WYCOMBE,
 ENGLAND, 1 FLRA 15(1979).  GRIEVANTS HARRIS AND GREENSPAN WERE THE
 "AGGRIEVED" PARTIES, WITHIN THE MEANING OF SECTION 19(D) OF THE ORDER,
 AS TO THE DISCIPLINARY ACTION AGAINST THEM;  THE INFORMATION WAS
 REQUESTED BY THEM, OR ON THEIR BEHALF, IN CONNECTION WITH THE
 DISCIPLINARY ACTION;  AND FAILURE TO FURNISH THE REQUESTED INFORMATION
 WAS SPECIFICALLY RAISED IN THEIR TIMELY GRIEVANCES.  AS THE COMPLAINT
 SPECIFICALLY ALLEGES, THE INFORMATION WAS NEEDED " . . . FOR THE PURPOSE
 OF REPRESENTING THESE EMPLOYEES . . . ", THE UNION MAY NOT INDEPENDENTLY
 PURSUE AN UNFAIR LABOR PRACTICE AFTER THE AGGRIEVED PARTIES HAVE
 EXERCISED THEIR OPTION TO RAISE THE ISSUE UNDER THE GRIEVANCE PROCEDURE.
  DEPARTMENT OF THE ARMY, U.S. ARMY TRANSPORTATION CENTER AT FORT EUSTIS,
 VIRGINIA, A/SLMR NO. 681, 6 A/SLMR 384, 6 SUPPLEMENT A/SLMR 147, 148 N.
 (1976;  EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, A/SLMR NO. 707, 6
 A/SLMR 484, 6 SUPPLEMENT A/SLMR 187(1976);  DEPARTMENT OF DEFENSE
 DEPENDENTS SCHOOL, EUROPE, SUPRA.
 
    SECTION 7116(D), OF THE STATUTE, 5 U.S.C.SECTION 7116(D) PROVIDES, IN
 PERTINENT PART, AS FOLLOWS:
 
    " . . . ISSUES WHICH CAN BE RAISED UNDER A GRIEVANCE PROCEDURE MAY,
 IN THE DISCRETION OF
 
    THE AGGRIEVED PARTY, BE RAISED UNDER THE GRIEVANCE PROCEDURE OR AS AN
 UNFAIR LABOR PRACTICE
 
    UNDER THIS SECTION, BUT NOT UNDER BOTH PROCEDURES."
 
    SECTION 7121(E)(1) OF THE STATUTE, 5 U.S.C. 7121(E)(1), PROVIDES, IN
 PART, AS FOLLOWS:
 
    " . . . AN EMPLOYEE SHALL BE DEEMED TO HAVE EXERCISED HIS OPTION . .
 . UNDER THE NEGOTIATED
 
    GRIEVANCE PROCEDURE AT SUCH TIME AS THE EMPLOYEE . . . TIMELY FILES A
 GRIEVANCE IN WRITING IN
 
    ACCORDANCE WITH THE PROVISIONS OF THE PARTIES' NEGOTIATED GRIEVANCE
 PROCEDURE . . . "
 
    OBVIOUSLY, SECTION 7116(D) WAS TAKEN SUBSTANTIALLY WITHOUT CHANGE
 FROM SECTION 19(D) OF THE ORDER.  INDEED, THE REPORT OF THE COMMITTEE ON
 GOVERNMENTAL AFFAIRS OF THE UNITED STATES SENATE, TO ACCOMPANY S.2640,
 WHICH BILL ULTIMATELY BECAME THE CIVIL SERVICE REFORM ACT, EMPHASIZED
 THAT THIS SECTION IS " . . . SIMILAR TO A PROVISION CONTAINED IN SECTION
 19(D) OF EXECUTIVE ORDER 11491 . . . " (S. REP. NO. 95-969 AT P. 107
 (JULY 10, 1978)).  THE REPORT FURTHER STATED:
 
    " . . . ACCORDINGLY, THE ISSUES INVOLVED MAY BE RAISED UNDER EITHER
 THE NEGOTIATED
 
    GRIEVANCE PROCEDURE OR, WHERE APPROPRIATE, IN AN UNFAIR LABOR
 PRACTICE PROCEEDING . . .  THE
 
    USE OF EITHER OPTION (REFERRING BOTH TO GRIEVANCE PROCEDURES AND
 STATUTORY APPEALS PROCEDURES)
 
    WILL PRECLUDE THE USE OF THE UNFAIR LABOR PRACTICE PROCEDURE . .  .
 (S. REP. NO. 95-569, AT
 
    P. 107)
 
    THE CLEAR INTENT OF SECTION 7116(D) IS THAT IT IS TO OPERATE IN THE
 SAME MANNER AS SECTION 19(D) HAD OPERATED.  THIS IS PLAINLY SHOWN BY THE
 LANGUAGE OF THE STATUTE AS WELL AS BY ITS LEGISLATIVE HISTORY.
 
    ACCORDINGLY, AS BOTH SECTION 19(D) OF THE ORDER AND SECTION 7116(D)
 OF THE STATUTE PRECLUDE THE RAISING IN AN UNFAIR LABOR PRACTICE
 PROCEEDING OF THE REFUSAL OF RESPONDENT TO FURNISH INFORMATION REQUESTED
 IN DISCIPLINARY PROCEEDINGS WHERE THE SAME ISSUE, NAMELY, THE SAME
 REFUSAL TO FURNISH INFORMATION, HAD BEEN RAISED IN THE GRIEVANCE OF THE
 EMPLOYEES SUBJECT TO THE DISCIPLINARY PROCEEDINGS PRIOR TO THE FILING OF
 THE ORIGINAL CHARGE HEREIN, THE COMPLAINT MUST BE DISMISSED FOR LACK OF
 JURISDICTION.
 
                                   ORDER
 
    FOR THE REASONS SET FORTH HEREINABOVE, THE AGGRIEVED PARTIES,
 GRIEVANTS HARRIS AND GREENSPAN, RAISED THE ISSUE OF RESPONDENT'S REFUSAL
 TO FURNISH REQUESTED INFORMATION IN THEIR GRIEVANCES, FILED ON APRIL 5,
 AND 10, 1979, RESPECTIVELY, AND PROCEEDINGS ON THE UNION'S CHARGE,
 ORIGINALLY FILED ON APRIL 19, 1979, WHICH RAISES THE SAME ISSUE OF
 RESPONDENT'S REFUSAL TO FURNISH REQUESTED INFORMATION IN THE
 DISCIPLINARY PROCEEDINGS OF EMPLOYEES HARRIS AND GREENSPAN, IS PRECLUDED
 BY THE PRIOR ELECTION OF THE AGGRIEVED PARTIES TO RAISE THE ISSUE UNDER
 THE NEGOTIATED GRIEVANCE PROCEDURES BY SECTION 19(D) OF EXECUTIVE ORDER
 11491, AS AMENDED AND, BY SECTION 7116(D) OF THE STATUTE.  ACCORDINGLY,
 IT IS:
 
    ORDERED, THAT THE COMPLAINT HEREIN BE, AND THE SAME IS HEREBY
 DISMISSED.
 
                            WILLIAM B. DEVANEY
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  NOVEMBER 14, 1979
 
    WASHINGTON, D.C.
 
    /1/ SPECIFICALLY, THIS CASE DOES NOT INVOLVE A REQUEST BY A UNION FOR
 INFORMATION QUA THE UNION AND NOTHING HEREIN IS INTENDED, NOR SHALL IT
 BE SO CONSTRUED, AS DISPOSITIVE OF A UNION'S INDEPENDENT RIGHT TO
 REQUEST INFORMATION NECESSARY TO APPROPRIATE FOR THE DISCHARGE OF THE
 UNION'S OVERALL BARGAINING RESPONSIBILITY AND/OR JURISDICTION UNDER THE
 UNFAIR LABOR PROVISIONS OF THE STATUTE WHERE THE UNION, QUA THE UNION
 HAS REQUESTED INFORMATION AND AN INDIVIDUAL GRIEVANCE HAS RAISED THE
 SAME REFUSED TO FURNISH INFORMATION.  SUCH ISSUE IS NOT INVOLVED IN THIS
 CASE AND RESOLUTION OF SAID ISSUE IS EXPRESSLY DEFERRED FOR FUTURE
 DETERMINATION.
 
    /2/ EACH GRIEVANCE BEGINS WITH THE STATEMENT,
 
    "PURSUANT TO ARTICLE 33, SEC. 6 I HEREBY GRIEVE MY DISCIPLINARY
 ACTION." (EXHS. 21 AND 22
 
    TO JOINT STIPULATION)
 
    THEN FOLLOWS THE APPOINTMENT OF REPRESENTATIVE, MR. MICHAEL L.
 PEACHER;  THE REQUEST THAT COPIES OF ALL CORRESPONDENCE BE SENT TO MR.
 PEACHER;  AND THE STATEMENT,
 
    "I WISH TO MEET AS SOON AS POSSIBLE." (EXHS. 21 AND 22, SUPRA)
 
    OTHER THAN THAT, "I HEREBY GRIEVE MY DISCIPLINARY ACTION", THIS
 PORTION OF EACH GRIEVANCE CONTAINS NO INDICATION OF THE NATURE, I.E.,
 BASIS, OF THE GRIEVANCE WHATEVER.  THE NATURE, OR BASIS, OF EACH
 GRIEVANCE IS FULLY STATED THEREAFTER, ALTHOUGH DENOMINATED "ARGUMENT".
 THUS EACH GRIEVANCE STATES:
 
    "ARGUMENT
 
    "IN ADDITION TO THE ARGUMENTS SET FOR IN MY REPLY, I DENY THE
 CHARGES, I ASSERT THAT I DID
 
    NOT RECEIVE THE NECESSARY INSTRUCTIONS AND TRAINING, AND I PROTEST
 THAT THE DISCIPLINARY
 
    ACTION IN QUESTION FAILS TO PROMOTE THE EFFICIENCY OF THE SERVICE.
 
    "I TAKE EXCEPTION TO THE FACT THAT I HAVE NOT BEEN PROVIDED WITH ALL
 THE INFORMATION THAT
 
    HAS BEEN REQUESTED." (EXHS. 21 AND 22 TO JOINT STIPULATIONS).
 
    NOT ONLY DID GRIEVANTS RAISE THE ISSUE OF THE NON-PRODUCTION OF
 INFORMATION REQUESTED AS A SPECIFIC AND INDEPENDENT BASIS;  BUT BY
 INCORPORATION OF " . . . THE ARGUMENTS SET FORTH IN MY REPLY", EACH
 GRIEVANT FURTHER STATED THE ISSUE OF THE NON-PRODUCTION OF INFORMATION
 REQUESTED.  FOR EXAMPLE, ON NOVEMBER 24, 1978, MR. GREENSPAN (EXH. 4 TO
 JOINT STIPULATION) AND MS. HARRIS (EXH. 5 TO JOINT STIPULATION) EACH
 RESPONDED TO THEIR PROPOSED SUSPENSION, INTER ALIA, BY REQUESTING A
 VARIETY OF DATA AND EACH APPOINTED MR. PEACHER AS REPRESENTATIVE.  ON
 JANUARY 8, 1979, MR. PEACHER, AS THE REPRESENTATIVE OF MS. HARRIS AND
 MR. GREENSPAN, IN PART "UNDER THE PROVISIONS OF THE MULTI-DISTRICT
 AGREEMENT," REQUESTED DATA AND STATED THAT HE WISHED "TO DETERMINE IF
 EITHER . . . WERE SUBJECTED TO DISPARATE TREATMENT." (EXH. 11 TO JOINT
 STIPULATION);  ON JANUARY 11, 1979, MR. PEACHER, ON BEHALF OF MR.
 GREENSPAN RESPONDED THAT MR. GREENSPAN HAD BEEN SUBJECTED TO DISPARATE
 TREATMENT (EXH. 13 TO JOINT STIPULATION), AND ON BEHALF OF MS. HARRIS
 FIRST ASSERTED THAT THE ADDITIONAL INFORMATION REQUESTED ON JANUARY 8,
 1979, HAD NOT BEEN RECEIVED AND THEN ASSERTED THAT MS. HARRIS HAD BEEN
 SUBJECTED TO DISPARATE TREATMENT (EXH. 14 TO JOINT STIPULATION).  ON
 MARCH 9, 1979, MR. PEACHER, ON BEHALF OF MS. HARRIS AND MR. GREENSPAN,
 TOOK "STRONG EXCEPTION TO YOUR DENIAL OF RECORDS" (EXH. 17 TO JOINT
 STIPULATION).  LETTERS OF REPRIMAND, RATHER THAN SUSPENSION, ISSUED AS
 TO MR. GREENSPAN (EXH. 19 OF JOINT STIPULATION) AND AS TO MS. HARRIS
 (EXH. 20 TO JOINT STIPULATIONS) ON MARCH 26, 1979, AND THE GRIEVANCES
 WERE FILED THEREAFTER, BY MS. HARRIS ON APRIL 5, 1979, AND BY MR.
 GREENSPAN ON APRIL 10, 1979.
 
    FROM THE FOREGOING, IT IS OBVIOUS THAT THE "EXCEPTION TO THE FACT
 THAT I HAVE NOT BEEN PROVIDED WITH ALL THE INFORMATION THAT HAS BEEN
 REQUESTED" OF EACH GRIEVANCE WAS NEITHER AN INADVERTENCE NOR WAS IT AN
 ISOLATED STATEMENT OF THE ISSUE.  TO THE CONTRARY, AS THE VARIOUS
 REPLIES, WHICH EACH GRIEVANCE INCORPORATED BY REFERENCE, SHOW, GRIEVANTS
 HAD RAISED THE ISSUE OF THE NON-PRODUCTION OF REQUESTED INFORMATION IN
 THEIR REPLIES AND, IN ADDITION TO INCORPORATION OF "THE ARGUMENTS SET
 FORTH IN MY REPLY", ALSO RAISED THE ISSUE AS A SEPARATE AND INDEPENDENT
 BASIS, OR GROUND, IN EACH GRIEVANCE.