[ v17 p912 ]
The decision of the Authority follows:
17 FLRA No. 120 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, SEATTLE DISTRICT OFFICE SEATTLE, WASHINGTON Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3230, AFL-CIO Charging Party Case No. 9-CA-20160 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding finding that the Respondent had engaged in certain unfair labor practices alleged in the complaint and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. Thereafter, the Respondent and the General Counsel filed exceptions and cross-exceptions, respectively, to the Judge's Decision, and the Respondent filed an opposition to the General Counsel's cross-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, the Authority hereby adopts the Judge's findings, conclusions, and recommended Order as modified below. The Judge found that information was requested on February 4, 1982 by the Charging Party, hereinafter referred to as the Union, in connection with the anticipated filing of a grievance concerning the proposed removal of a unit employee for unsatisfactory performance, and that the Respondent violated section 7116(a)(1) and (8) of the Statute by its failure and refusal to provide this information from February 4, 1982 to February 19, 1982. In view of the voluntary settlement of the grievance, the Judge further found that any refusal after February 19, 1982 was not violative of the Statute. Based on the facts found by the Judge, the Authority, in agreement with the Judge, finds that whatever "necessary" information had been requested by the Union on February 4, within the meaning of section 7114(b)(4) of the Statute, was rendered moot on February 19 by the approval of the employee's disability retirement request and the cancellation of his proposed removal for unsatisfactory performance on that date. However, contrary to the Judge, the Authority also finds that the Respondent did not refuse to supply the information between February 4 and February 19. Rather, the Authority finds that the General Counsel has failed to meet the burden of proving that the Respondent failed or refused to comply with section 7114(b)(4) of the Statute in the circumstances of this case. In this regard, the Authority notes that the Union's request for information was lengthy; that the Respondent never refused to provide information sufficient to meet the Union's needs but rather asked, on February 10, /1A/ that the Union's request be made reasonable and specific; that the Respondent had, as yet, no grievance against which to consider the Union's request for information; and that on February 12, the day after the grievance had been filed, the grievant and the Respondent entered into a settlement agreement which resulted in the Respondent's withdrawal of the proposed removal action, the subject of the grievance. In these circumstances, the Authority concludes that the Respondent did not unlawfully refuse to furnish necessary data to the Union between February 4 and February 19, 1982, and that the complaint in Case No. 9-CA-20160 must be dismissed. ORDER IT IS ORDERED that the complaint in Case No. 9-CA-20160 be, and it hereby is, dismissed in its entirety. Issued, Washington, D.C., May 8, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Nilda I. Aponte, Esquire For the Respondent Arthur E. Joyner, Esquire For the Charging Party Stefanie Arthur, Esquire For the General Counsel, FLRA Before: GARVIN LEE OLIVER, Administrative Law Judge DECISION Statement of the Case This decision concerns an unfair labor practice complaint issued by the Regional Director, Region Nine, Federal Labor Relations Authority, San Francisco, California against the U.S. Equal Employment Opportunity Commission, Seattle District Office, Seattle, Washington (EEOC or Respondent), based on a charge filed by the American Federation of Government Employees, Local 3230, AFL-CIO (Charging Party or Union). The complaint alleged, in substance, that Respondent did engage in, and is engaging in, an unfair labor practice in violation of sections 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101 et seq. (the Statute). The complaint alleged that on or about February 10, 1982, Respondent failed to comply with sections 7114(b)(4) by refusing to provide certain items of information requested by the Union. These items were allegedly reasonably available and necessary for full and proper discussion of the grievance of a bargaining unit employee. Respondent's answer denied any violation of the Statute and contended, among other things, that the complaint is moot. A hearing was held in Seattle, Washington. The Respondent, Charging Party, and the General Counsel were represented by counsel and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. Based on the entire record, /1/ including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations. Findings of Fact At all times material herein, the National Council of EEOC Locals, No. 216, American Federation of Government Employees, AFL-CIO has been certified as the exclusive representative of an appropriate nationwide unit of professional and nonprofessional employees of the Equal Employment Opportunity Commission (EEOC), including the employees at Respondent, Seattle District Office. At all times material herein, a collective bargaining agreement has been in effect between the Council and the EEOC. (Joint Ex. 1). By the terms of Article 39, the Council is permitted to designate local stewards and the EEOC agrees to recognize the representatives designated by the Council. Arthur Joyner is the Chief Steward for AFGE Local 3230 representing employees at Respondent, one of the EEOC District Offices referred to in Article 39. (Tr. 20). On or about December 2, 1981, Respondent notified Juan Sanchez of a proposal to remove him from his position as a GS-13 trial attorney. Thereafter, and in accordance with the provisions of the collective bargaining agreement, oral and written presentations were submitted by, and on behalf of, Mr. Sanchez. (General Counsel's Ex. 2). In the course of the proceedings to remove Mr. Sanchez, a dispute developed over who would represent him in the proceedings. Mr. Sanchez had retained the services of a private attorney and, in addition, had designated Union Steward Arthur Joyner as his representative pursuant to Article 24 of the collective bargaining agreement. Respondent insisted that Sanchez was entitled to only one representative and refused to acknowledge his selection of both a Union representative and private counsel. /2/ The Union insisted that it was representing Mr. Sanchez concerning "administrative, contractual or procedural matters" and that Mr. Sanchez's attorney was representing him concerning his "legal rights under Title 7 or any other statute." (Tr. 42-44). Both representatives were involved in discussions with management concerning the proposed removal. During the course of these discussions, Mr. Joyner indicated that if a decision to remove were issued, an extensive grievance would be filed. (Tr. 22). On January 22, 1982 Respondent issued a decision to remove Sanchez from his position effective February 12, 1982. Both the Union and Mr. Sanchez's attorney were sent copies of the decision. (General Counsel's Ex. 2). By a three page memorandum dated February 4, 1982 to District Director Donald W. Muse, subject "First Request for Information Regarding The Pending Grievance of Juan J. Sanchez," Union representative Joyner requested 21 items of information. These items fell generally into the categories of requests for information regarding persons contacted and other transfers and assignments considered for Sanchez and others (Items 1-3, 21), disciplinary information concerning Sanchez and others (Items 4, 7-10, 15-16, 20), medical information and physicians consulted concerning Sanchez (Items 5, 6), leave policies (Items 11, 12), evaluations of Sanchez and others (Items 13, 19), and training information concerning Sanchez (Items 14, 17, 18). Generally, information was requested for the three year period of January 1, 1979 to February 4, 1982. (General Counsel's Ex. 4). By letter dated February 10, 1982 District Director Muse responded to Mr. Joyner, in part, as follows: EEOC does not recognize the requirements of discovery or interrogatory in the administrative grievance procedure. This procedure is not in the judicial process. Your request appears to be of this nature. If you require information to assist you in carrying out your representative function, we will consider furnishing it, provided it is reasonable, specific or required by the Collective Bargaining Agreement. (General Counsel's Ex. 5). At the time Mr. Muse responded to the letter no grievance had been filed; however, Mr. Muse knew that the termination was hotly contested and that the Union was contemplating filing a grievance. (Tr. 60, 75). Sanchez had also filed several EEO charges in connection with the proposed dismissal. The details concerning the EEO charges are not reflected in the record. (Tr. 71-72). On February 11, 1982 Union representative Joyner filed a grievance directly with the Acting Chair, EEOC in Washington, D.C. in accordance with the expedited procedure contained in Article 46f of the agreement. Mr. Sanchez was identified and signed as the grievant and Mr. Joyner as the Union steward. The nature of the discipline was identified as "termination" and the "corrective action requested" was reinstatement, backpay, transfer, expungement of records, and counseling and training, as appropriate. Multiple issues were identified in a 22 page attachment. The eight general areas of contention were: Denial of Representative, concerning Respondent's refusal to recognize Joyner as the Union representative of Juan Sanchez during adverse action proceedings, as well as interference with Sanchez's right to select his representative, and failure to meet with the Union representative concerning the conditions of employment of Sanchez, all in contravention of various delineated sections of the collective bargaining agreement; Failure to Train the grievant in contravention of EEOC Orders and the collective bargaining agreement; Failure to Counsel or Provide Counseling to the grievant concerning mental and emotional problems, in contravention of the collective bargaining agreement and federal law; Failure to Provide Reasonable Work Conditions for the grievant, in contravention of Articles 4(f) and 46(a) of the collective bargaining agreement; Failure to Consider Mitigating Circumstances concerning the grievant, in contravention of Article 24(a) of the collective bargaining agreement; Failure to Minimize Action toward the grievant with less severe action as required by Article 24 of the collective bargaining agreement; Discrimination of the grievant based upon national origin, age, race, sex and in retaliation for the exercise of protected rights, in contravention of Article 8(a) of the collective bargaining agreement; and finally, the contention that Management's Notice of Proposal to Remove failed to contain in the record a number of responses of the grievant. (General Counsel's Ex. 3). On February 12, 1982 Sanchez and his attorney, John Beckwith, signed a document entitled "Agreement" which provided, among other things, that Sanchez's removal would be delayed until March 12, 1982, in order to allow for the processing of a request by Sanchez for disability retirement. The document provided that if the application for disability retirement were approved by OPM prior to March 12, 1982, the "parties to this agreement, specifically Juan Sanchez and the Union waive all rights to future appeals to the MSPB, through the negotiated grievance procedure, and withdraw any and all charges of race, national origin, handicap, sex and age discrimination. . . ." The document also provided that if Sanchez's application for disability retirement were approved, EEOC "agrees not to include adverse action documents in the official personnel file of Juan Sanchez." The document was signed by the Regional Attorney and District Director Muse for the EEOC and by Juan Sanchez. John Beckwith signed the agreement as "Attorney-legal representative" for Sanchez. Union representative Joyner refused to sign the document, and the line originally designated for the Union's signature was stricken. Joyner stated that the Union did not consider the agreement a waiver of any rights that the Union had either as an institution and representative of the bargaining unit or to issues in the grievance. (Respondent's Ex. 2; Tr. 43-44). Sanchez's disability retirement was approved by OPM on February 19, 1982 and became effective on March 12, 1982. An official notification of personnel action was issued by Respondent to reflect his retirement on account of disability as of that date. (Respondent's Ex. 1). On February 23, 1982 Union representative Joyner amended Mr. Sanchez's grievance to add the remedy that should Sanchez, subsequent to his retirement, become fit for duty, that he be offered reinstatement to the position of GS-13/10 trial attorney in San Francisco. The cited reason for the amendment was that the earlier decision to terminate Mr. Sanchez was on record and would be a severe obstacle to his reinstatement. (General Counsel's Ex. 6). Respondent denied the original grievance on March 11, 1982 and the amended grievance on March 22, 1982 on the basis that Mr. Sanchez's disability retirement had been approved and, therefore, Mr. Sanchez and his legal representative had waived the right to grieve the adverse action through the negotiated grievance procedure. Respondent also noted that the grievance was over Mr. Sanchez's termination, an action which was not, and would not be, taken in view of the approval of his retirement. (General Counsel's Ex. 7, 8). The Union referred the grievance to arbitration pursuant to the collective bargaining agreement. The appointment of an arbitrator is pending. (Tr. 28). /3/ Article 48, section h of the collective bargaining agreement provides: Absent a negative arbitrator's decision on the arbitrability of a grievance, the arbitrator shall hear arguments regarding both the arbitrability and the merits of the case at the same hearing. However, the parties may mutually agree otherwise in instances where such highly complex cases would involve several days of hearings. (Joint Ex. 1, p. 76). Discussion, Conclusions, and Recommendations The Authority has previously held that section 7114(b)(4) of the Statute requires management to furnish a union with information which would enable the union to effectively carry out its representational obligation during the processing of an employee grievance. U.S. Customs Service, Region VII, Los Angeles, California, 10 FLRA No. 47 (1982). The information was specifically requested "regarding the pending grievance of Juan J. Sanchez." Although no grievance had been filed at the precise time of the Union's request, Respondent was fully aware of the Union's representational role and of potential grievance issues. There was a clear nexus between much of the information sought and these issues. It is concluded that the information requested in Items 4 (limited to Seattle office), 5, 11-15 (excluding actions "considered") and 16-21 (excluding "handicap") was necessary and relevant in order to properly process the employee's grievance at that time. Respondent's defenses, concerning lack of specificity, election of other remedies, and Privacy Act considerations, are not supported by the record. Accordingly, it is concluded that Respondent violated sections 7116(a)(1) and (8) of the Statute, by its refusal to provide this information during the period from February 4, 1982 to February 19, 1982. The General Counsel and the Charging Party contend that since the Union has taken the grievance to arbitration, the grievance is alive, and there is a continuing duty to supply the information. These parties also assert that the effect of the February 12, 1982 agreement on the Union's right to pursue the grievance is an arbitrability question to be submitted to an arbitrator for resolution and is not appropriate for disposition here. Respondent maintains that the agreement had the effect of waiving Mr. Sanchez's rights through the negotiated grievance procedure, and the Union has no separate rights which survived the agreement which would make the information relevant to the Union's representational duty. The question of the effect of the February 12, 1982 agreement on the Union's right to pursue the grievance is indeed an arbitrability question for resolution by the arbitrator. See Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 11 FLRA No. 80 (1983). However, the effect of the February 12, 1982 agreement on the alleged unfair labor practice must be considered here; that is, whether, in light of the agreement, Respondent had a continuing duty to provide information to the Union which was relevant and necessary to process the grievance of the bargaining unit employee. The case of U.S. Customs Service, Region VII, 10 FLRA No. 47 (1982), cited by the General Counsel, is not controlling here. In U.S. Customs Service the Authority rejected the agency's contention, inter alia, that it had no duty to furnish requested information because the employee's grievance involved a matter which was nongrievable under the parties' negotiated agreement. The Authority pointed out that arbitrability questions are to be submitted to arbitration, unless otherwise agreed, and found a violation for the conceded refusal to furnish necessary and relevant information. U.S. Customs Service did not involve an alleged waiver. Cf. Department of the Navy, Portsmouth Naval Shipyard, 4 FLRA No. 82 (1980). If the Respondent is correct, there ceased to be a grievance as a result of the compliance with the February 12, 1982 agreement, and the Union thereafter had no continuing right to process such a grievance. Thus, the requested information would no longer be relevant and necessary to process "the grievance of a bargaining unit employee," as alleged. The dispute as to the effect of the February 12, 1982 agreement on the Union's rights will be a threshold issue for the arbitrator and would best be resolved through that forum. Otherwise, conflicting interpretations of the agreement might result. Inasmuch as Respondent's interpretation is arguably within the terms of the negotiated agreement and the February 12, 1982 agreement, its failure to furnish the information after February 19, 1982 (the date of approval of Sanchez's disability retirement) did not rise to the level of an unfair labor practice. /4/ Cf. United States Army Aviation Center, Fort Rucker, Alabama, 1 FLRA No. 98 (1979); Harry S. Truman Memorial Veterans Hospital, Columbia, Missouri, 11 FLRA No. 90 (1983). Assuming, however, that the continuing obligation of the Respondent to furnish the information is properly the subject of this unfair labor practice complaint, the record will be considered further on that basis. Cf. Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 3 FLRA No. 82 (1980). It is noted that Sanchez and his attorney, by means of the February 12, 1982 agreement, agreed, in effect, not to pursue a grievance or other avenues of appeal concerning his proposed removal if OPM approved his request for disability retirement. In turn, EEOC agreed to withdraw the proposed removal from his personnel file if the request were approved. Sanchez's request for disability retirement was approved by OPM on February 19, 1982. There is no indication in the record that the agreement is invalid, that EEOC has not complied with its part of the agreement, or that Mr. Sanchez is in any way dissatisfied with the agreement or its results. The Union took no part in the agreement and desires to have the information in issue in order that it might pursue the grievance. However, in my view, the agreement and compliance with it makes the alleged continuing need for the information moot. The complaint specifically alleged that the information was "necessary for full and proper discussion of the grievance referred to in paragraph 11 above ("the grievance of a bargaining unit employee"). The information was not requested by the Union qua Union in order to fulfill its bargaining responsibilities. Pursuant to the February 12, 1982 agreement Sanchez ceased to be pursuing a grievance as of February 19, 1982 or to be a bargaining unit employee after March 12, 1982. Thus, after February 19, 1982, the requested information was not relevant and necessary in order to process the grievance of a bargaining unit employee, as alleged. There was no continuing violation after that date. An order operating prospectively will adequately remedy the violation found. Based on the foregoing findings and conclusions, it is recommended that the Authority issue the following Order: ORDER Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Statute, the Authority hereby orders that the U.S. Equal Employment Opportunity Commission, Seattle District Office, Seattle, Washington shall: 1. Cease and desist from: (a) Failing and refusing to furnish to the American Federation of Government Employees, Local 3230, AFL-CIO, upon request and, to the extent not prohibited by law, data which is reasonably available and necessary to enable the exclusive representative to perform its representational obligations to a unit employee. (b) In any like or related manner, interfering with, restraining, or coercing 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 Statute. (a) Upon request, and to the extent not prohibited by law, furnish to the American Federation of Government Employees, Local 3230, AFL-CIO, data which is reasonably available and necessary to enable the exclusive representative to perform its representational obligation to a unit employee. (b) Post at its facilities copies of the attached Notice marked "Appendix" on forms to be furnished by the Authority. Upon receipt of such forms, they shall be signed by the District Director 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 District Director shall take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material. (c) Pursuant to 5 C.F.R.Section 2423.30 notify the Regional Director, Region Nine, Federal Labor Relations Authority, San Francisco, California, in writing, within 30 days from the date of this order, as to what steps have been taken to comply herewith. GARVIN LEE OLIVER Administrative Law Judge Dated: June 13, 1983 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 fail and refuse to furnish to the American Federation of Government Employees, Local 3230, AFL-CIO, upon request and, to the extent not prohibited by law, data which is reasonably available and necessary to enable the exclusive representative to perform its representational obligations to a unit employee. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Statute. WE WILL, upon request, and to the extent not prohibited by law, furnish to the American Federation of Government Employees, Local 3230, AFL-CIO, data which is reasonably available and necessary to enable the exclusive representative to perform its representational obligation to a 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 or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region Nine, whose address is: 530 Bush Street, Room 542, San Francisco, California 94108, and whose telephone number is: (415) 556-8106. --------------- FOOTNOTES$ --------------- /1A/ The complaint herein alleged that the Respondent, on February 10, refused to provide the information requested by the Union and thereby violated section 7114(b)(4) of the Statute. /1/ The General Counsel's motion to correct the transcript is granted; the transcript is hereby corrected as set forth therein. /2/ Article 24g(b) of the collective bargaining agreement provides, among other things, that a schedule A attorney shall be notified of his right "to be represented by the Union or another representative of the employee's choice." (Joint Ex. 1, p. 43). /3/ Respondent presented testimony purporting to show that the grievance has been terminated. Ms. Godwin testified that, in August 1982, Gwen Jones of her office sent a letter to the Local president advising that if the Union did not contact the Agency to strike for an arbitrator within 5 days, the Agency would terminate the grievance; and that, since no contact was made as required, the Agency had terminated the grievance. (Tr. 87-88). I am unable to find that the grievance has been effectively terminated based on this testimony. The collective bargaining agreement covers the situation where a party unduly delays the selection of an arbitrator. The case is not terminated or dismissed in such circumstances. Rather, Article 48, section C requires that the other party return the list with its order of preference to the FMCS "for selection of the available arbitrator." (Joint Ex. 1, p. 75). /4/ If the arbitrator decides the arbitrability issue in favor of the Union and reaches the merits of the grievance, a request for the information may be reasserted at that point.